J-S51009-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                         Appellee

                    v.

RAYMOND HARRY MILEY

                         Appellant                 No. 2997 EDA 2015


               Appeal from the PCRA Order September 3, 2015
                In the Court of Common Pleas of Bucks County
             Criminal Division at No(s): CP-09-CR-0007472-2009


BEFORE: GANTMAN, P.J., LAZARUS, J., and PLATT, J.*

MEMORANDUM BY GANTMAN, P.J.:                    FILED OCTOBER 03, 2016

     Appellant, Raymond Harry Miley, appeals from the order entered in the

Bucks County Court of Common Pleas, which dismissed his petition filed

under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546.

We affirm.

     The relevant facts and procedural history of this case are as follows.

Appellant engaged in sexual activity with his adopted daughter over a period

of several years, beginning in 2001 when she was under thirteen years old.

In 2009, the Commonwealth charged Appellant with multiple counts of rape

of a child, involuntary deviate sexual intercourse (“IDSI”), and related

offenses. The Commonwealth’s evidence included a consensual wiretap of a

telephone conversation between Appellant and the victim, in which Appellant

_____________________________

*Retired Senior Judge assigned to the Superior Court.
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admitted having sex with the victim. On December 24, 2009, Appellant filed

a motion to suppress the audio recording of the conversation. Following a

hearing, the trial court denied the suppression motion on the morning of

March 10, 2010. After a lunch recess, Appellant returned to court that same

date and entered an open guilty plea to rape of a person less than 13 years

old, rape of a child,1 IDSI with a person less than 16 years of age, unlawful

contact with minor, incest, aggravated indecent assault of a person less than

16 years of age, endangering welfare of children, and corruption of minors.

The court held an initial sentencing hearing on June 25, 2010. The victim

gave an oral victim impact statement, and plea counsel cross-examined her

on that statement.          After the victim’s testimony concluded, Appellant

requested a continuance to file a motion to withdraw his guilty plea.        The

court granted the continuance. On July 9, 2010, Appellant filed a motion to

withdraw his guilty plea, which the court denied.           The court sentenced

Appellant on October 15, 2010, to an aggregate term of fifteen (15) to thirty

(30) years’ incarceration.        Appellant filed a motion for reconsideration of

sentence, which the court granted.             On December 13, 2010, the court

reduced Appellant’s aggregate sentence to twelve and one-half (12½) to

twenty-five (25) years’ incarceration.           The court subsequently modified

____________________________________________


1
  In 2002, the offense of “rape of a person less than 13 years of age” was
renamed “rape of a child” and moved to a different subsection of the rape
statute.



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Appellant’s sentence to reflect corrected mandatory minimum terms for rape

of a child and IDSI, pursuant to 42 Pa.C.S.A. § 9718.2 Appellant’s aggregate

sentence remained twelve and one-half (12½) to twenty-five (25) years’

incarceration.      Appellant filed a pro se notice of appeal, which he

subsequently withdrew.

        On July 15, 2011, Appellant filed a pro se PCRA petition.       The court

appointed counsel, who filed multiple amended petitions. Appellant and the

Commonwealth ultimately stipulated to reinstatement of Appellant’s direct

appeal rights nunc pro tunc.          Appellant filed a notice of appeal nunc pro

tunc, and this Court affirmed Appellant’s judgment of sentence on June 10,

2014.     See Commonwealth v. Miley, No. 219 EDA 2013, unpublished

memorandum (Pa.Super. filed June 10, 2014).            Appellant timely filed the

current counseled PCRA petition on August 8, 2014.           Following a hearing,

the PCRA court denied the petition on September 3, 2015. On September

28, 2015, Appellant filed a timely notice of appeal.            The court ordered

Appellant to file a concise statement of errors complained of on appeal

pursuant to Pa.R.A.P. 1925(b), and Appellant timely complied.

        Appellant raises the following issues for our review:
____________________________________________


2
   Appellant does not challenge his mandatory minimum sentences.
Moreover, we observe our Supreme Court’s recent decision in
Commonwealth v. Washington, ___ Pa. ___, 142 A.3d 810 (2016), which
held that Alleyne v. U.S., ___ U.S. ___, 133 S.Ct. 2151, 186 L.Ed.2d 314
(2013) does not apply retroactively for purposes of collateral attacks on
mandatory minimum sentences as illegal sentences.



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         WHETHER THE HONORABLE TRIAL COURT ERRED BY
         FINDING APPELLANT’S GUILTY PLEA WAS KNOWING,
         VOLUNTARY,   AND   INTELLIGENT   BECAUSE    [PLEA]
         COUNSEL WAS INEFFECTIVE IN THAT HE FAILED TO FULLY
         INFORM APPELLANT OF CRUCIAL EVIDENCE, TO WIT, A
         REPORT FROM AN EXPERT INDICATING THE WIRETAP
         TAPE MAY NOT HAVE BEEN ACCURATE?

         WHETHER THE HONORABLE TRIAL COURT ERRED BY
         FINDING APPELLANT’S GUILTY PLEA WAS KNOWING,
         VOLUNTARY AND INTELLIGENT BECAUSE [PLEA] COUNSEL
         WAS INEFFECTIVE IN THAT HE IMPROPERLY PROMISED
         THAT APPELLANT WOULD ONLY RECEIVE A FIVE YEAR
         SENTENCE AS OFFERED BY [PLEA] COUNSEL BY THE
         HONORABLE TRIAL COURT AND APPELLANT RELIED UPON
         THAT REPRESENTATION?

         WHETHER [PLEA] COUNSEL WAS INEFFECTIVE BECAUSE
         HE DID NOT CORRECTLY INFORM APPELLANT OF THE
         ELEMENTS OF THE CRIMES TO WHICH HE [PLED] GUILTY
         THEREBY RENDERING THE GUILTY PLEA UNKNOWING,
         INVOLUNTARY, AND UNINTELLIGENT?

         WHETHER THE HONORABLE TRIAL COURT ERRED BY
         FINDING [PLEA] COUNSEL EFFECTIVE DESPITE THE FACT
         THAT HE FAILED TO FILE A MOTION TO WITHDRAW
         APPELLANT’S GUILTY PLEA AT AN EARLIER DATE AND/OR
         FAILED TO PROVIDE SUFFICIENT BASES FOR THE
         WITHDRAWAL?

(Appellant’s Brief at 4).

      Our standard of review of the denial of a PCRA petition is limited to

examining    whether        the   evidence    of   record    supports    the     court’s

determination    and    whether      its     decision   is   free   of   legal    error.

Commonwealth v. Conway, 14 A.3d 101, 108 (Pa.Super. 2011), appeal

denied, 612 Pa. 687, 29 A.3d 795 (2011). This Court grants great deference

to the findings of the PCRA court if the record contains any support for those


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findings. Commonwealth v. Boyd, 923 A.2d 513, 515 (Pa.Super. 2007),

appeal denied, 593 Pa. 754, 932 A.2d 74 (2007).          We owe no deference,

however, to the court’s legal conclusions.     Commonwealth v. Ford, 44

A.3d 1190, 1194 (Pa.Super. 2012). If the record supports a post-conviction

court’s credibility determination, it is binding on the appellate court.

Commonwealth v. Knighten, 742 A.2d 679, 682 (Pa.Super. 1999), appeal

denied, 563 Pa. 659, 759 A.2d 383 (2000).

      The   law   presumes    counsel   has   rendered    effective   assistance.

Commonwealth v. Williams, 597 Pa. 109, 950 A.2d 294 (2008).                When

asserting a claim of ineffective assistance of counsel, a petitioner is required

to make the following showing: (1) the underlying claim is of arguable merit;

(2) counsel had no reasonable strategic basis for his action or inaction; and,

(3) but for the errors and omissions of counsel, there is a reasonable

probability that the outcome of the proceedings would have been different.

Commonwealth v. Kimball, 555 Pa. 299, 312, 724 A.2d 326, 333 (1999).

The failure to satisfy any prong of the test for ineffectiveness will cause the

claim to fail. Williams, supra.

      “The threshold inquiry in ineffectiveness claims is whether the

issue/argument/tactic which counsel has foregone and which forms the basis

for the assertion of ineffectiveness is of arguable merit….” Commonwealth

v. Pierce, 537 Pa. 514, 524, 645 A.2d 189, 194 (1994). “Counsel cannot

be found ineffective for failing to pursue a baseless or meritless claim.”


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Commonwealth v. Taylor, 933 A.2d 1035, 1042 (Pa.Super. 2007), appeal

denied, 597 Pa. 715, 951 A.2d 1163 (2008) (quoting Commonwealth v.

Poplawski, 852 A.2d 323, 327 (Pa.Super. 2004)).

        Once this threshold is met we apply the “reasonable basis”
        test to determine whether counsel’s chosen course was
        designed to effectuate his client’s interests. If we conclude
        that the particular course chosen by counsel had some
        reasonable basis, our inquiry ceases and counsel’s
        assistance is deemed effective.

Pierce, supra at 524, 645 A.2d at 194-95 (internal citations omitted).

        Prejudice is established when [a defendant] demonstrates
        that counsel’s chosen course of action had an adverse
        effect on the outcome of the proceedings. The defendant
        must show that there is a reasonable probability that, but
        for counsel’s unprofessional errors, the result of the
        proceeding would have been different.             A reasonable
        probability is a probability sufficient to undermine
        confidence in the outcome. In [Kimball, supra], we held
        that a “criminal defendant alleging prejudice must show
        that counsel’s errors were so serious as to deprive the
        defendant of a fair trial, a trial whose result is reliable.”

Commonwealth v. Chambers, 570 Pa. 3, 21-22, 807 A.2d 872, 883

(2002) (some internal citations and quotation marks omitted).

     In issue one, Appellant argues plea counsel litigated the suppression

motion before he received important evidence, i.e., an expert report (“OWL

report”) regarding the authenticity of the copied recording of a telephone

conversation between Appellant and the victim.      Appellant asserts counsel

should have requested a continuance to gain a better understanding of the

OWL report’s findings.   Appellant contends his guilty plea was unknowing

and involuntary because he relied on counsel’s false representations that the

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OWL report concluded the recording had no authenticity issues.       Appellant

claims counsel did not read the report before Appellant entered his plea but

simply relied on a colleague’s recitation of parts of the report over the

phone.   Appellant maintains the findings of the OWL report went to the

admissibility of the recording.   Appellant concludes counsel was ineffective

for inducing him to plead guilty based on misinformation concerning the

OWL report. We disagree.

      “To satisfy the requirement of authenticating or identifying an item of

evidence, the proponent must produce evidence sufficient to support a

finding that the item is what the proponent claims it is.” Pa.R.E. 901(a).

         [T]he ultimate determination of authenticity is for the jury.
         A proponent of a document need only present a prima
         facie case of some evidence of genuineness in order to put
         the issue of authenticity before the factfinders.

         The court makes the preliminary determination of whether
         or not a prima facie case exists to warrant its submission
         to the finders of fact, but the jury itself considers the
         evidence and weighs it against that offered by the
         opposing party.

Commonwealth v. Brooks, 508 A.2d 316, 320 (Pa.Super. 1986) (internal

citations omitted) (emphasis in original).

      Instantly, on September 30, 2009, law enforcement conducted a

wiretap of a telephone conversation between Appellant and the victim, with

the victim’s consent. During pretrial discovery, plea counsel obtained a CD

copy of the audio recording of the conversation. Appellant listened to it and

denied having made the incriminating statements on the recording.

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Appellant told counsel he believed different parts of the recording had been

spliced together to make it sound like Appellant was admitting guilt.

Counsel then hired an expert from OWL Investigations, Inc. to analyze the

recording and determine if it had been manipulated in that manner, i.e., if

Appellant’s words had been shifted around. The expert’s report arrived at

plea counsel’s office on the day of the suppression hearing.             Meanwhile,

counsel    litigated   the   suppression    motion    on   issues   related   to   the

Commonwealth’s preservation of the audio recording and compliance with

the wiretap statute.

      At   the   suppression    hearing,    the    Commonwealth      presented     the

testimony of Officer Gorman, who was involved in the wiretap investigation.

Officer Gorman testified that he was present during the recorded phone call

between Appellant and the victim. The victim nodded to Officer Gorman to

indicate that Appellant was the person on the other end of the line. Officer

Gorman testified that the recording was downloaded from a chip in the

recorder to a county-owned computer.              Officer Gorman then made a CD

copy of the recording and downloaded another copy into an archive system.

Following the close of the Commonwealth’s evidence, the court denied

Appellant’s motion to suppress, without prejudice to Appellant’s right to raise

issues related to the OWL report.          During the ensuing lunch recess, plea

counsel received a message from his law office that the OWL report had

arrived. Over the phone, one of the attorneys at the office read portions of


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the report to plea counsel regarding the expert’s methods and conclusions.

The report referenced “anomalies” in the audio recording but did not

conclude any “splicing” had occurred.     Counsel also spoke to the expert

during the recess. At the PCRA hearing, counsel testified as follows:

        I believe [the report] talked about anomalies. That’s the
        main word that [the expert] Mr. Owen used. And I spoke
        to him after that, and he could not tell me that—he could
        not testify in court that there were things taken out
        of context. He could only talk about hearing things in the
        background and digital—some type of—not a time stamp
        but something that indicates that it did not sound continual
        to him.

(N.T. PCRA Hearing, 4/1/15, at 30-31) (emphasis added).                 Counsel

concluded the report would affect only the weight of the evidence, not its

admissibility, which was a reasonable conclusion in light of the expert’s

findings, and the authentication evidence the Commonwealth presented at

the suppression hearing. See Brooks, supra. Counsel testified that he had

shared the information he received about the report with Appellant during

the court recess. Based on that discussion and previous conversations with

counsel on the possibility of pleading guilty, Appellant decided to enter a

guilty plea. Additionally, Appellant testified that he received a copy of the

OWL report from counsel approximately five weeks after the plea had been

entered. Therefore, Appellant had ample time to review the report before

the sentencing hearing on June 25, 2010.      Nevertheless, counsel testified

that Appellant made no request to withdraw his plea at any time before

sentencing. The PCRA court credited counsel’s testimony on this issue. See

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Knighten, supra.         Based on the foregoing, Appellant failed to establish

arguable merit to his claim that counsel misrepresented the OWL report.

Appellant also failed to establish prejudice, i.e., that he would not have pled

guilty if counsel had provided an accurate picture of the report’s content.

Thus, Appellant’s first challenge to counsel’s effectiveness merits no relief. 3

See Kimball, supra.

       In issue two, Appellant argues plea counsel repeatedly told Appellant

he would receive a maximum five-year sentence if he pled guilty. Appellant

further contends counsel improperly involved the trial court in the plea

negotiations. Appellant claims he was induced to plead guilty by counsel’s

false assurances of a five-year sentence.          Appellant concludes counsel’s

representations regarding sentencing constituted ineffective assistance. We

disagree.

       “Allegations of ineffectiveness in connection with the entry of a guilty

plea will serve as a basis for relief only if the ineffectiveness caused the

defendant to enter an involuntary or unknowing plea.” Commonwealth v.

Moser, 921 A.2d 526, 531 (Pa.Super. 2007) (quoting Commonwealth v.
____________________________________________


3
  Appellant also suggests counsel was ineffective for failing to raise other
issues at Appellant’s suppression hearing. Appellant, however, failed to
develop his argument on those issues, including the merit of the underlying
claims. Therefore, those issues are waived. See Commonwealth v.
D’Amato, 579 Pa. 490, 500, 856 A.2d 806, 812 (2004) (stating that to
succeed on allegation of counsel’s ineffectiveness, PCRA petitioner must, at
minimum, present argumentation relative to each layer of ineffective
assistance, on all three prongs of the ineffectiveness standard).



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Hickman, 799 A.2d 136, 141 (Pa.Super. 2002)).            “Where the defendant

enters his plea on the advice of counsel, the voluntariness of the plea

depends on whether counsel’s advice was within the range of competence

demanded of attorneys in criminal cases.” Id.

           The standard for post-sentence withdrawal of guilty pleas
           dovetails with the arguable merit/prejudice requirements
           for relief based on a claim of ineffective assistance of plea
           counsel, …under which the defendant must show that
           counsel’s deficient stewardship resulted in a manifest
           injustice, for example, by facilitating entry of an
           unknowing, involuntary, or unintelligent plea.           This
           standard is equivalent to the “manifest injustice” standard
           applicable to all post-sentence motions to withdraw a
           guilty plea.

Commonwealth v. Morrison, 878 A.2d 102, 105 (Pa.Super. 2005) (en

banc), appeal denied, 585 Pa. 688, 887 A.2d 1241 (2005) (internal citations

omitted).

     Further, a trial judge may not participate in the plea bargaining

process.    Commonwealth v. Evans, 434 Pa. 52, 252 A.2d 689 (1969);

Commonwealth v. Johnson, 875 A.2d 328 (Pa.Super. 2005), appeal

denied, 586 Pa. 748, 892 A.2d 822 (2005).

           “Participation”…denotes some active role in discussion or
           negotiations relative to a plea. It is to be avoided as
           undesirable and potentially unfair to a defendant…. The
           mere presence of a trial judge at a conversation between
           counsel at which the possibility of a plea bargain is
           mentioned does not amount to participation by the trial
           judge in the plea bargaining.

Commonwealth v. Sanutti, 454 Pa. 344, 348, 312 A.2d 42, 44 (1973).

     Instantly, the PCRA court reasoned as follows:

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       We begin by noting that the testimony elicited at
       Appellant’s PCRA Hearing contradicts the notion that this
       [c]ourt engaged in any sentencing negotiations. [Plea
       counsel] testified that during a conference prior to the
       Suppression Hearing, both himself and the assistant
       district attorney discussed potential sentences if Appellant
       entered a guilty plea. [Plea counsel] explicitly testified
       that this [c]ourt was not involved in the negotiations, but
       rather simply confirmed that a mandatory minimum was
       being invoked in the case. So the premise supporting
       Appellant’s claim is erroneous.

       Next, the testimony from Appellant’s PCRA Hearing further
       establishes that no promises of any sentence were made
       to Appellant. [Plea counsel] confirmed that he did not
       promise Appellant that he would receive a five (5) year
       sentence if he pled guilty, but rather estimated that the
       sentence would be between the five (5) year mandatory
       minimum sentence and the ten (10) year sentence that
       the assistant district attorney represented that she would
       seek. Moreover, despite Appellant[’s] and [his father’s]
       testimony that [plea counsel] continually communicated
       that Appellant should expect to receive a five (5) year
       sentence, letters that they each wrote at the time reflect
       that neither individual was expecting any particular
       sentence.

                               *     *      *

       Finally, Appellant confirmed when entering his guilty plea
       that he was not promised any particular sentence. The
       exchange between this [c]ourt and Appellant went as
       follows:

          The [c]ourt:    Has anybody promised you about
          what my sentence would be?

          Appellant:        No, your honor.

       N.T. [Guilty Plea,] 3/10/10, [at] 15. When given the
       opportunity to divulge any promises that were made by
       [plea] counsel or any other person, Appellant confirmed
       that no promises were made regarding any potential
       sentence that could be imposed. Considering the fact that

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         the testimony and evidence produced at Appellant’s PCRA
         Hearing, coupled with Appellant’s admissions under oath at
         his Guilty Plea Hearing, contradict any suggestion that
         Appellant was promised a particular sentence, there is no
         value to the claim that Appellant’s guilty plea was not
         knowing, intelligent, or voluntary due to that reason.
         Therefore, Appellant’s [plea] counsel cannot be ineffective
         when the underlying claim lacks merit.

(PCRA Court Opinion, filed January 7, 2016, at 11-12). The record supports

the PCRA court’s findings that: (1) the trial court did not improperly

participate in plea negotiations; and (2) counsel did not induce Appellant to

plead guilty with false assurances of a maximum five-year sentence.

Therefore, the claims underlying Appellant’s second ineffectiveness challenge

lack arguable merit. See Pierce, supra.

      In issue three, Appellant argues the court misinformed him regarding

the elements of IDSI during the guilty plea colloquy. Appellant asserts the

court referred to “sexual intercourse” but the offense requires an act of

“deviate sexual intercourse.” Appellant contends this mistake rendered his

plea involuntary and counsel was ineffective for failing to correct the error.

We disagree.

      The Pennsylvania Rules of Criminal Procedure mandate that pleas be

taken in open court, and require the court to conduct an on-the-record

colloquy to ascertain whether a defendant is aware of his rights and the

consequences of his plea.     Commonwealth v. Hodges, 789 A.2d 764

(Pa.Super. 2002). Specifically, the court must affirmatively demonstrate the

defendant understands: (1) the nature of the charges to which he is

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pleading guilty; (2) the factual basis for the plea; (3) his right to trial by

jury; (4) the presumption of innocence; (5) the permissible ranges of

sentences and fines possible; and (6) the judge is not bound by the terms of

the agreement unless he accepts the agreement.                      Pa.R.Crim.P. 590

Comment; Commonwealth v. Watson, 835 A.2d 786 (Pa.Super. 2003).

“The guilty plea colloquy must affirmatively demonstrate that the defendant

understood     what     the     plea    connoted       and    its         consequences.”

Commonwealth v. Bedell, 954 A.2d 1209, 1212 (Pa.Super. 2008), appeal

denied, 600 Pa. 742, 964 A.2d 893 (2009). Defense counsel or the attorney

for the Commonwealth may conduct part or all of the examination of the

defendant, as permitted by the court. Pa.R.Crim.P. 590 Comment. A guilty

plea will be deemed valid if an examination of the totality of the

circumstances surrounding the plea shows that the defendant had a full

understanding of the nature and consequences of his plea such that he

knowingly     and   intelligently   entered     the   plea   of     his    own   accord.

Commonwealth v. Rush, 909 A.2d 805 (Pa.Super. 2006). “[A] trial court

may consider a wide array of relevant evidence…to determine the validity of

a…plea agreement including, but not limited to, transcripts from other

proceedings, off-the-record communications with counsel, and written plea

agreements.” Commonwealth v. Allen, 557 Pa. 135, 147, 732 A.2d 582,

589 (1999).

      Instantly, at Appellant’s guilty plea hearing, the trial court conducted a


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lengthy colloquy in which it reviewed, inter alia, the elements of each

applicable offense. While reviewing the IDSI charge, the court stated:

         THE COURT: What that means is that between the years
         of 2003 and 2005 you engaged in sexual intercourse with
         a child…who was less than 16 years of age while you were
         more than four years older than she was, and that the two
         of you were not married to each other. Do you understand
         that?

         [APPELLANT]: Yes.

(N.T. Guilty Plea at 19).     The court did not specify “deviate” sexual

intercourse at that moment of the colloquy. Nevertheless, during the same

proceedings, the Commonwealth recited the factual basis underlying the

IDSI charge as follows: “[T]he alleged deviate sexual intercourse in this case

is using a sex toy on the victim’s vagina when she was 15 years of age, and

also [Appellant], in addition to placing the toy there, he also placed his

tongue on the victim’s vagina when she was younger than 16 years old.”

Id. at 30. The following exchange then took place between the court and

Appellant:

         THE COURT:        Do        you      understand   what   [the
         Commonwealth] said?

         APPELLANT:           Yes.

         THE COURT:           You understand that those are the
         facts that support the charge?

         APPELLANT:           Yes.

         THE COURT:           You’re admitting to that?

         APPELLANT:           Yes.

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Id. at 30-31. Additionally, the criminal complaint and information correctly

set forth the elements of IDSI, and plea counsel testified at the PCRA

hearing that he had reviewed the charges with Appellant before the guilty

plea hearing.        An examination of the totality of the circumstances

surrounding the plea reveals Appellant understood the nature of the IDSI

charge. Therefore, counsel was not ineffective for failing to inform Appellant

of the elements of IDSI.4 See Pierce, supra.

       In issue four, Appellant argues he asked plea counsel to file a motion

to withdraw the guilty plea immediately upon receipt of the OWL report.

Appellant contends the trial court denied his motion to withdraw the plea,

and this Court affirmed that decision, because counsel waited to file the

motion until after the victim had testified at the June 25, 2010 sentencing

hearing.    Appellant maintains counsel could have avoided prejudice to the

Commonwealth by filing the motion to withdraw earlier.        Appellant further

asserts counsel failed to present and preserve meritorious grounds for

withdrawing the plea, other than Appellant’s assertion of innocence and a

change in defense strategy based on the victim’s impact testimony.

____________________________________________


4
  To the extent Appellant directly challenges the validity of the guilty plea
based on a defective plea colloquy, that issue is waived because Appellant
failed to raise it in his motion to withdraw the guilty plea or on direct appeal.
See 42 Pa.C.S.A. § 9544(b) (stating: “[A]n issue is waived if the petitioner
could have raised it but failed to do so before trial, at trial, during unitary
review, on appeal or in a prior state postconviction proceeding”).



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Appellant    claims   counsel   should   have   argued   Appellant’s   plea   was

involuntary in light of the OWL report and/or the trial court’s misstatement

of the elements of IDSI during the plea colloquy.           Appellant concludes

counsel’s delay in filing a motion to withdraw the plea, and counsel’s failure

to   argue   meritorious   grounds   for   withdrawal,   constituted   ineffective

assistance. We disagree.

      The following legal principles apply to a pre-sentence motion to

withdraw a plea:

         At any time before the imposition of sentence, the court
         may, in its discretion, permit, upon motion of the
         defendant, or direct sua sponte, the withdrawal of a plea of
         guilty or nolo contendere and the substitution of a plea of
         not guilty. Although there is no absolute right to withdraw
         a guilty plea, properly received by the trial court, it is clear
         that a request made [b]efore sentencing...should be
         liberally allowed. Thus, in determining whether to grant a
         pre-sentence motion for withdrawal of a guilty plea, the
         test to be applied by the trial courts is fairness and justice.
         If the trial court finds “any fair and just reason,”
         withdrawal of the plea before sentence should be freely
         permitted, unless the prosecution has been “substantially
         prejudiced.” As a general rule, the mere articulation of
         innocence [is] a “fair and just” reason for the pre-sentence
         withdrawal of a guilty plea unless the Commonwealth has
         demonstrated that it would be substantially prejudiced.

Commonwealth v. Prendes, 97 A.3d 337, 351–52 (Pa.Super. 2014),

appeal denied, 629 Pa. 635, 105 A.3d 736 (2014) (internal citations

omitted).    See also Commonwealth v. Carrasquillo, ___ Pa. ___, 115

A.3d 1284 (2015) (holding there is no per se rule regarding pre-sentence

requests to withdraw pleas; court should consider plausibility, sincerity,


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motivation, and timing of request; courts must also consider whether

allowing withdrawal of plea will prejudice Commonwealth).

       Instantly, at the initial sentencing hearing on June 25, 2010, the victim

gave an oral victim impact statement.              During cross-examination of the

victim regarding her impact statement, plea counsel elicited testimony that

he believed cast doubt on the victim’s memory of when the sexual abuse

started. Counsel requested a continuance and subsequently filed a motion

to withdraw Appellant’s guilty plea. The trial court denied the motion. On

appeal, this Court affirmed the trial court’s ruling on the ground that the

Commonwealth would be substantially prejudiced by Appellant’s withdrawal

of his guilty plea at that late stage in the proceedings.5

       With respect to Appellant’s claim that counsel was ineffective for failing

to seek withdrawal of the plea at an earlier time, the PCRA court reasoned:

          The “fair-and-just reason” cited by Appellant in his Motion
          was the change in the victim’s statement that was
          revealed when she testified at Appellant’s Sentencing
          Hearing.    [Plea counsel] testified that as soon as he
____________________________________________


5
  This Court stated: “The averments represent an admission that [Appellant]
believed he had obtained an advantage from Victim’s oral impact statement
that could be used against her and to the Commonwealth’s detriment.
[Appellant] obtained testimony otherwise unavailable to him, to the
Commonwealth’s prejudice.         [Appellant] was intending to use the
information to alter his trial strategy.       Notwithstanding [Appellant’s]
subsequent assertion of innocence, [Appellant] was seeking to use
information only available through the sentencing process to his benefit.
This is a fundamentally unfair attempt to use the sentencing process to tip
the scales in his favor. We believe this represents the essence of substantial
prejudice to the Commonwealth.” Miley, supra at *10.



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        noticed a possible issue with her testimony, he
        immediately halted the proceeding and discussed with
        Appellant and [his father] the potential of withdrawing
        Appellant’s guilty plea. [Plea counsel] verified that this
        moment was the first time that the possibility of
        withdrawing the plea was discussed, and [Appellant’s
        father] further corroborated that fact in his testimony.
        [Plea] counsel acted as soon as the potential fair and just
        reason surfaced, so it cannot be said that he was
        ineffective for failing to move for the withdrawal at an
        earlier time.

        Additionally, the evidence revealed at Appellant’s PCRA
        Hearing further points to the fact that Appellant did not
        ask [plea] counsel to withdraw his plea at an earlier date….
        Despite Appellant’s testimony that he requested his [plea]
        counsel to withdraw his plea at a prior point, his account is
        belied by both [plea counsel’s] and [Appellant’s father’s]
        recollection that the Sentencing Hearing was the first
        instance where the subject of withdrawing Appellant’s
        guilty plea was discussed. As such, [plea] counsel raised
        the motion before the [c]ourt at the earliest opportunity,
        and we therefore submit that the underlying claim is
        meritless.    Additionally, [plea] counsel possessed a
        reasonable basis for raising the Motion at the given time.

(PCRA Court Opinion at 14-15). The record supports the court’s reasoning.

Plea counsel could not have filed the motion to withdraw the guilty plea on

the grounds asserted, at an earlier time. Further, the PCRA court was free

to reject Appellant’s testimony that he requested counsel to withdraw the

plea for other reasons prior to the June 25, 2010 sentencing hearing. See

Knighten, supra.

     Additionally, Appellant’s claim that counsel should have sought to

withdraw Appellant’s plea based on the OWL report, even absent a request

from Appellant, is illogical given that counsel had explained the findings of


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the OWL report to Appellant before Appellant decided to plead guilty. The

trial court’s single omission of the word “deviate” during the plea colloquy

provided no basis for withdrawal        either, where the totality of the

circumstances showed Appellant understood the elements and factual basis

of the IDSI charge. Therefore, counsel’s timing on the motion to withdraw

the guilty plea was reasonable and did not constitute ineffective assistance.

See Kimball, supra.        Based on the foregoing, none of Appellant’s

challenges to counsel’s effectiveness merit relief. Accordingly, we affirm.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/3/2016




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