J-S46024-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

TRICIA ANN REDICK

                            Appellant               No. 135 MDA 2017


                Appeal from the PCRA Order December 14, 2016
               In the Court of Common Pleas of Franklin County
              Criminal Division at No(s): CP-28-CR-0002372-2014


BEFORE: BOWES, OLSON, JJ. and STEVENS, P.J.E.*

MEMORANDUM BY OLSON, J.:                              FILED JULY 27, 2017

       Appellant, Tricia Ann Redick, appeals from the order entered on

December 14, 2016, denying her first petition filed pursuant to the Post

Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.

       The facts and procedural history of this case may be summarized as

follows. On September 24, 2014, Appellant was charged with driving under

the influence (DUI) of a controlled substance-schedule II or III,1 DUI of a

controlled substance-metabolite of a substance,2 and DUI of a controlled



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1
    75 Pa.C.S.A. § 3802(d)(1)(ii).
2
    75 Pa.C.S.A. § 3802(d)(1)(iii).




* Former Justice specially assigned to the Superior Court.
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substance-impaired ability.3          On April 29, 2015, Appellant entered a

negotiated guilty plea to DUI of a controlled substance-schedule II or III and

agreed to      serve a sentence         of 60    months of county intermediate

punishment, with the first three months in the Franklin County Jail, followed

by nine months of electronic monitoring. In exchange, the Commonwealth

agreed to dismiss Appellant’s remaining charges.         Prior to sentencing, on

July 8, 2015, Appellant withdrew her guilty plea.

       On November 2, 2015, Appellant entered a second negotiated guilty

plea to DUI of a controlled substance-schedule II or III.       Pursuant to the

terms of the plea, Appellant was sentenced to 12 to 60 months in a state

correctional institute.      Appellant filed a timely post-sentence motion on

December 18, 2015, requesting credit for time served, which the court

granted.4 On June 10, 2016, Appellant filed a timely pro se PCRA petition.

The PCRA court appointed counsel and held a hearing on October 7, 2016.

On December 14, 2016, the PCRA court entered an opinion and order

denying Appellant relief. This timely appeal followed.5

       On appeal, Appellant presents the following issue for our review:


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3
    75 Pa.C.S.A. § 3802(d)(2).
4
   Appellant spent 30 days in an inpatient rehabilitation center, entitling her
to 15 days of credit for time served.
5
    The requirements of Pa.R.A.P. 1925 have been satisfied in this case.



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      Whether the [t]rial court’s denial of relief and dismissal of
      [Appellant’s] PCRA petition is supported by the record and free
      from legal error, where [plea] counsel was ineffective for failing
      to adequately investigate [Appellant’s] case or explain the
      ramifications of the withdrawal of her [first] guilty plea
      [agreement]?

Appellant’s Brief at 1-2.

      In this case, Appellant contends that plea counsel was ineffective

because he failed to explain to her the ramifications of withdrawing her

original negotiated guilty plea.   Appellant’s Brief at 12.   Appellant testified

that if plea counsel had been more diligent in investigating and explaining

the process to Appellant, she would not have withdrawn her original

negotiated guilty plea.     N.T., 10/23/2016, at 11.          Further, Appellant

contends she suffered actual prejudice due to counsel’s ineffectiveness,

because her second negotiated plea deal resulted in a longer term of

incarceration. Appellant’s Brief at 13.

      “Our standard of review of the denial of PCRA relief is well settled: we

examine whether the PCRA court’s determination is supported by the

evidence and is free of legal error.” Commonwealth v. Smith, 995 A.2d

1143, 1149 (Pa. 2010).       Because there is a presumption that counsel

provided effective representation, a PCRA petitioner bears the burden of

proving ineffectiveness. Commonwealth v. Ligons, 971 A.2d 1125, 1137

(Pa. 2009) (citations omitted). “To be entitled to relief on a claim of trial

counsel’s ineffectiveness, appellant must prove the underlying claim is of

arguable merit, counsel’s performance lacked a reasonable basis, and

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counsel’s ineffectiveness caused him prejudice.”                  Commonwealth v.

Smith, 995 A.2d 1043, 1150 (Pa. 2010).                “Prejudice in the context of

ineffective assistance of counsel means demonstrating there is a reasonable

probability that, but for counsel’s error, the outcome of the proceeding

would have been different.” Id. at 1151. “Failure to establish any prong of

the test will defeat an ineffectiveness claim.” Id.

        When an evidentiary hearing on a claim of ineffectiveness is granted,

the     burdens   of   production    and    persuasion      are   on    the   petitioner.

Commonwealth v. Jones, 596 A.2d 885, 888 (Pa. Super. 1991). Appellant

shoulders the burden of proving that the ineffectiveness of plea counsel so

undermined the truth-determining process that no reliable adjudication of

guilt   or   innocence     could   have    taken   place.     See      42   Pa.C.S.A.   §

9543(a)(2)(ii). In doing so, Appellant must establish that each prong of the

test for ineffectiveness was met. Here, Appellant has not met her burden

because she failed to establish that plea counsel lacked a reasonable basis

for his acts or alleged omissions, the second prong of the test. Therefore,

Appellant’s claim fails.

        At the PCRA hearing, Appellant offered only her testimony to establish

that plea counsel acted ineffectively.        Generally, “a lawyer should not be

held ineffective without first having an opportunity to address the accusation

in some fashion.”      Commonwealth v. Colavita, 933 A.2d 874, 895 (Pa.

2010).       While there may be cases where the absence of a reasonable


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strategy is uncontested, there is “a strong preference that counsel be heard

from before being found ineffective.” Id. at 895. “The ultimate focus of an

ineffectiveness inquiry is always upon counsel, and not upon an alleged

deficiency in the abstract.”    Id. at 896; see also Commonwealth v.

Duffey, 855 A.2d 764, 775 (Pa. 2004) (finding that in the absence of

testimony from counsel, the court “should refrain from gleaning whether…a

reasonable basis exists.”).    Thus, in order to establish that plea counsel

lacked a reasonable basis for his alleged inactions, Appellant should have

offered his testimony at the PCRA hearing.

      Appellant argues that her testimony is sufficient to establish that

counsel was ineffective, and relies on Commonwealth v. Steckley, 128

A.3d 826 (Pa. Super. 2015).          This reliance, however, is misplaced.          In

Steckley,   the   petitioner   was    offered   a   plea   deal   that   included   a

recommended two to six year sentence. Id. at 829. He rejected the offer

based on what he believed the sentencing guidelines were and opted to go

to trial. Ultimately, he received a sentence of 25 to 50 years’ imprisonment.

Id.   At the PCRA hearing, defendant’s counsel testified that she was

unaware of the potential 25-year mandatory minimum sentence and this

negatively affected her representation before the trial court.           Id. at 831.

The petitioner was permitted to offer his own testimony as evidence of

prejudice that he would have entered a guilty plea, but for counsel’s

ineffectiveness. Id. at 833.


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       Appellant argues that Steckley demonstrates that she was not

required to offer plea counsel’s testimony at the PCRA hearing.     However,

the petitioner’s testimony in Steckley was used only to establish that

counsel’s ineffectiveness caused him prejudice. In this case, the PCRA court

dismissed Appellant’s PCRA petition because she could not establish that her

counsel’s performance lacked a reasonable basis,6 not because she failed to

establish prejudice.      Thus, Appellant’s argument that her testimony alone

was sufficient to demonstrate that counsel lacked a reasonable strategic

basis for his action or inaction is meritless.

       Appellant also signed a written guilty plea statement when she entered

her second negotiated plea deal. In this statement, she specifically indicated

that she was satisfied with counsel’s representation and that he had not

failed to do anything that she requested. Moreover, at the PCRA hearing,

Appellant admitted that, prior to withdrawing her original plea agreement,

her attorney informed her that once she withdrew her guilty plea, the offer

may no longer be available. N.T., 10/23/2016, at 28. Thus, Appellant was

aware of the possible ramifications of withdrawing her original guilty plea

against the advice of her counsel.

       Therefore, based on our standard of review and the rationale explained

above, Appellant failed to establish that her counsel lacked a reasonable

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6
    See Trial Court Opinion, 12/14/2016, at 4-5.



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strategic basis for his alleged inactions.   Thus, Appellant has not met her

burden of proving that plea counsel was ineffective. We conclude that the

PCRA court’s determination is supported by the evidence and is free of legal

error.

         Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/27/2017




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