J-S01020-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA            :    IN THE SUPERIOR COURT OF
                                        :         PENNSYLVANIA
                                        :
            v.                          :
                                        :
                                        :
JASON RICHARD MORGAN                    :
                                        :
                  Appellant             :    No. 837 MDA 2017

                 Appeal from the PCRA Order April 17, 2017
 In the Court of Common Pleas of Lackawanna County Criminal Division at
                     No(s): CP-35-CR-0001629-2008

BEFORE: GANTMAN, P.J., MURRAY, J., and MUSMANNO, J.

MEMORANDUM BY MURRAY, J.:                       FILED FEBRUARY 21, 2018

      Jason Richard Morgan (Appellant) appeals from the order dismissing

his petition filed pursuant to the Post Conviction Relief Act (PCRA), 42

Pa.C.S.A. §§ 9541-9546. We affirm.

      This case arises from an April 25, 2008 home invasion in Taylor,

Lackawanna County, Pennsylvania, committed by Appellant.              During the

home invasion, Appellant “held two individuals at gunpoint, caused various

physical injuries to both victims during the course of the theft, and

threatened further harm to the victims with the firearm.”       PCRA Ct. Op.,

7/19/17, at 2.

      The trial court summarized the subsequent procedural history as

follows:

              On December [8], 2008, [Appellant] entered a
           guilty plea to one (1) count of Burglary in violation of
           18 Pa.C.S.A. § 3502(a), one (1) count of Robbery –
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          Inflict Serious Bodily Injury in violation of Pa.C.S.A.
          § 3701(a)(1)(i), one (1) count of Aggravated Assault
          in violation of 18 Pa.C.S.A. § 2702(a)(4), one (1)
          count of Unlawful Restraint in violation of 18
          Pa.C.S.A. § 2902(a)(1), and one (1) count of
          Possession of an Instrument of a Crime with Intent
          in violation of 18 Pa.C.S.A. § 907(a).         Prior to
          entering his guilty plea, [Appellant] executed a
          lengthy written plea colloquy form in which [he]
          indicated his awareness of the maximum penalties
          he was facing, the elements of the crimes charged,
          his satisfaction with counsel, and the terms of the
          Plea agreement.        Moreover, this [c]ourt also
          conducted an on the record inquiry into whether
          [Appellant] was entering a knowing, voluntary, and
          intelligent plea.       After receiving satisfactory
          responses from [Appellant], this [c]ourt accepted the
          guilty plea.

             On February 2, 2009, [Appellant], while
          represented by counsel, filed a pro se Motion to
          Withdraw Guilty Plea, which this [c]ourt denied as
          hybrid representation on February 18, 2009.

              On March 23, 2009, this [c]ourt sentenced
          [Appellant] to [78 to 160] months’ confinement on
          the Burglary count, [42 to 100] months’ on the
          Robbery count, and [33 to 70] months’ on the
          Aggravated Assault charge, five (5) years’ of
          probation on the Unlawful Restraint charge, and [16
          to 32] months’ confinement on the Possession of an
          Instrument of a Crime charge, consecutive, for an
          aggregate term of [169 to 362] months’, or
          approximately [14 to 30] years’ confinement,
          followed by five (5) years’ probation.

             On March 30, 2009, counsel for [Appellant] filed a
          Motion for Reconsideration of Sentence, which this
          [c]ourt denied on April 1, 2009.

             [Appellant] filed a pro se Notice of Appeal to the
          Pennsylvania Superior Court on June 8, 2009. After
          a lengthy appellate procedural history, the Superior
          Court ultimately affirmed this [c]ourt’s Judgment of

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              Sentence on May 23, 2012. See [Commonwealth
              v. Morgan], 1378 MDA 2009, Order (Filed May 23,
              2012).

                 On March 28, 2013, [Appellant] filed a [pro se
              PCRA      petition]   and     present  counsel   was
              subsequently appointed. On August 12, 2014, PCRA
              counsel filed an Amended PCRA Petition limiting the
              issue to whether [plea]/sentencing counsel [were]
              ineffective for failing to file a Motion to Withdraw
              Guilty Plea on [Appellant’s] behalf. A PCRA hearing
              was held before this [c]ourt on October 9, 2014. On
              May 15, 2015, [Appellant] filed a pro se Notice of
              Appeal to the Pennsylvania Superior Court, which
              was ultimately quashed. See [Commonwealth v.
              Morgan], 871 MDA 2015, Order (Filed Aug[.] 28,
              2015).

                 On April 17, 2017, this [c]ourt denied
              [Appellant]’s Amended PCRA Petition and [he]
              appealed on May 17, 2017.

Id. at 2-4.

      On May 22, 2017, the trial court ordered Appellant to file a concise

statement of errors complained of on appeal pursuant to Rule 1925(b) of the

Pennsylvania Rules of Appellate Procedure.        On June 12, 2017, Appellant

timely filed his Rule 1925(b) statement.

      On appeal, Appellant raises the following issues for our review:

              I.    Whether [the] [l]ower [c]ourt erred in denying
              the Appellant’s Amended Petition for Post Collateral
              Relief?

              II.   Whether the [l]ower [court] erred in finding
              that [plea counsel and sentencing counsel were] not
              ineffective for failing to re-file Appellant’s Motion to
              Withdraw Guilty Plea?

Appellant’s Brief at 7.


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       Although Appellant presents two issues in the statement of questions

involved section of his appellate brief, he actually only raises one issue for

our review.1 Appellant argues that his plea counsel and sentencing counsel2

were ineffective because they did not file a pre-sentence motion to withdraw

Appellant’s guilty plea and therefore, the PCRA court erred in denying his

PCRA petition.      Specifically, Appellant contends that plea counsel should

have filed the motion because after Appellant signed his written plea

colloquy, he claims that someone altered the provisions regarding his

potential sentence from “Defendant will receive” 6½ to 13 years of

incarceration to the “Commonwealth will not oppose” a sentence of 6½ to 13

years of incarceration. Id. at 17.

       “Our standard in reviewing a PCRA court order is abuse of discretion.

We determine only whether the court’s order is supported by the record and

free of legal error.” Commonwealth v. Patterson, 143 A.3d 394, 397 (Pa.

Super. 2016) (quotations and citation omitted). “The PCRA court’s findings

will not be disturbed unless there is no support for the findings in the

____________________________________________


1 Appellant does not divide his argument into two parts “as there are
questions to be argued” as prescribed by Pa.R.A.P. 2119(a). Moreover,
Appellant’s his first issue is simply a general assertion of PCRA court error
that is subsumed in Appellant’s second issue.

2 Appellant was represented by the Lackawanna County Public Defender’s
Office. Appellant had different counsel at his guilty plea hearing and his
sentencing hearing because his plea counsel left employment with the Public
Defender’s Office prior to sentencing.



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certified record.”   Commonwealth v. Garcia, 23 A.3d 1059, 1061 (Pa.

Super. 2011).

      In deciding ineffective assistance of counsel claims, we begin with the

presumption that counsel rendered effective assistance.      Commonwealth

v. Bomar, 104 A.3d 1179, 1188 (Pa. 2014).                 To overcome that

presumption, the petitioner must establish:    “(1) the underlying claim has

arguable merit; (2) no reasonable basis existed for counsel’s action or failure

to act; and (3) the petitioner suffered prejudice as a result of counsel’s

error, with prejudice measured by whether there is a reasonable probability

that the result of the proceeding would have been different.” Id. (citation

omitted). To demonstrate prejudice in an ineffective assistance of counsel

claim, “the petitioner must show that there is a reasonable probability that,

but for counsel’s unprofessional errors, the result of the proceeding would

have been different.”       Commonwealth v. King, 57 A.3d 607, 613 (Pa.

2012).   If the petitioner fails to prove any of these prongs, the claim is

subject to dismissal.        Bomar, 104 A.3d at 1188.         Appellant must

demonstrate that there is a reasonable probability that but for counsel’s

ineffectiveness, Appellant would have filed a pre-sentence motion to

withdraw his guilty plea.




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     With respect to pre-sentence motions to withdraw a guilty plea, our

Supreme Court, in Commonwealth v. Carrasquillo, 115 A.3d 1284 (Pa.

2015), explained:

              [T]here is no absolute right to withdraw a guilty
           plea; trial courts have discretion in determining
           whether a withdrawal request will be granted; such
           discretion is to be administered liberally in favor of
           the accused; and any demonstration by a defendant
           of a fair-and-just reason will suffice to support a
           grant, unless withdrawal would work substantial
           prejudice to the Commonwealth. The perfunctory
           fashion in which these principles were applied … lent
           the impression that this Court had required
           acceptance of a bare assertion of innocence as a fair-
           and-just reason.

Id. at 1291-92 (footnote and citations omitted).       Therefore, the Court

stated:

               [T]he proper inquiry on consideration of such a
           withdrawal motion is whether the accused has made
           some      colorable    demonstration,    under     the
           circumstances, such that permitting withdrawal of
           the plea would promote fairness and justice. The
           policy of liberality remains extant but has its limits,
           consistent with the affordance of a degree of
           discretion to the common pleas courts.


Id. at 1292.

     We conclude that the PCRA court did not abuse its discretion in

dismissing Appellant’s PCRA petition.   First, Appellant has failed to make

even a bare assertion of innocence as the basis for withdrawing his guilty

plea. See id.




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       Second,    Appellant    has    likewise   failed   to   make   a    “colorable

demonstration … that permitting withdrawal of the plea would promote

fairness and justice.” See id. With respect to the argument he raises on

appeal relating to his understanding of his potential sentence at the time he

pled guilty, the record reflects that during his guilty plea hearing, Appellant

specifically acknowledged that the trial court was under no obligation to

sentence him to 6½ to 13 years of incarceration and that it could indeed

sentence him beyond that term.          N.T., 12/8/08, at 2-3, 9. Appellant also

conceded this point at his PCRA hearing.         N.T., 10/9/14, at 7.      Moreover,

plea counsel testified at Appellant’s PCRA hearing that the “Commonwealth

will not oppose” language in the written plea colloquy carried “legal

significance” and that “as a matter of course and habit, [he] would have told

[Appellant] that the [trial court] could go beyond” the 6½ to 13 years when

sentencing Appellant.     Id. at 30.     The PCRA court credited plea counsel’s

testimony in this respect.           PCRA Ct. Op., 7/19/17, at 12.           Such a

determination is binding on this Court. See Commonwealth v. Medina, 92

A.3d   1210,     1214   (Pa.   Super.   2014)    (“The    PCRA   court’s   credibility

determinations, when supported by the record, are binding on this Court.”).

       Finally, the PCRA hearing transcript further indicates that neither plea

counsel nor sentencing counsel were aware that Appellant desired to

withdraw his guilty plea, that Appellant believed grounds existed for filing

such a motion, or that he had filed a pro se pre-sentence motion to withdraw


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his guilty plea. N.T., 10/9/14, at, 32-37, 43-46. The PCRA court likewise

credited this testimony. PCRA Ct. Op., 7/19/17, at 12; see also Medina,

92 A.3d at 1214.      This Court has held that counsel cannot be deemed

ineffective for failing to file a motion to withdraw a guilty plea unless the

appellant either requested counsel to do so or made counsel aware of

grounds to support such a motion. Commonwealth v. Gonzalez, 840 A.2d

326, 331 (Pa. Super. 2003) (en banc).

        Therefore, even had plea counsel or sentencing counsel filed a pre-

sentence motion, such motion would have failed.     Consequently, Appellant

was not prejudiced by either counsel’s failure to file a pre-sentence motion

to withdraw his guilty plea.    Because Appellant failed to prove the third

prong of the test for ineffectiveness, the PCRA court did not err in denying

Appellant’s ineffective assistance of counsel claim. See Bomar, 104 A.3d at

1188.

        Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/21/2018




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