J-S56043-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

ORONDE C. DANIELS,

                            Appellant                  No. 450 MDA 2014


                 Appeal from the PCRA Order February 11, 2014
               in the Court of Common Pleas of Lycoming County
               Criminal Division at No.: CP-41-CR-0001672-2011


BEFORE: PANELLA, J., WECHT, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                           FILED OCTOBER 14, 2014

        Appellant, Oronde C. Daniels, appeals pro se from the order denying

his first petition filed pursuant to the Post Conviction Relief Act, 42 Pa.C.S.A.

§§ 9541-9546, without a hearing. We affirm.

        The PCRA court aptly set forth the background of this case in its

November 26, 2013 opinion as follows:

               [Appellant] was on parole for firearm and drug offenses.
        His parole agent received a letter from an inmate in the county
        prison, who knew and previously resided with [Appellant]. The
        letter indicated that [Appellant] possessed guns and controlled
        substances in his residence.       The parole agent went to
        [Appellant’s] residence and asked to enter and look around,
        which [Appellant] allowed.         When the agent entered
        [Appellant’s] bedroom, he smelled the odor of raw marijuana.
        The agent then began to search the bedroom for marijuana. The
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*
    Retired Senior Judge assigned to the Superior Court.
J-S56043-14


       agent picked up a pair of pants and found a gun in one of the
       pockets. The agent then called the Williamsport police who,
       based on the agent’s observations, obtained a search warrant for
       [Appellant’s] residence. The search warrant resulted in the
       discovery of another firearm, marijuana, and drug paraphernalia,
       including a digital scale.

             [Appellant] was charged with person not to possess a
       firearm, possession with intent to deliver a controlled substance
       [(PWID)], and possession of drug paraphernalia.[1] He filed a
       motion to suppress to challenge the search of his residence by
       his parole agent, which was denied.

            On October 2, 2012, [Appellant] entered a guilty plea to
       person not to possess a firearm and [PWID] in exchange for a
       sentence of [five] to [ten] years of incarceration. On that date,
       the court sentenced [Appellant] in accordance with the plea
       agreement.

              On June 3, 2013, [Appellant] filed a PCRA petition in which
       he asserted in a vague and conclusory manner that there was a
       conflict of interest . . . and his guilty plea was illegally obtained
       or induced by ineffective counsel. The court appointed counsel
       for [Appellant] and gave counsel the opportunity to either file an
       amended PCRA petition or a “no merit” letter in accordance with
       Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988)
       and Commonwealth v. Finley, 379 Pa. Super. 390, 550 [A.2d]
       213 (1988) [(en banc)]. After obtaining a transcript of the guilty
       plea and sentencing hearing and corresponding with [Appellant],
       counsel filed a motion to withdraw, which included a
       Turner/Finley no merit letter.

(PCRA Court Opinion, 11/26/13, at 1-2).

       On November 26, 2013, the court issued a Rule 907 notice of its intent

to dismiss the petition without a hearing, and a supporting opinion.           See

Pa.R.Crim.P. 907(1).       On December 18, 2013, Appellant timely responded
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1
  18 Pa.C.S.A. § 6105(a), and 35 P.S. §§ 780-113(a)(30) and (a)(32),
respectively.



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and, on February 11, 2014, the court granted counsel’s motion to withdraw;2

and    subsequently      dismissed     Appellant’s   petition.   Appellant   timely

appealed.3

       Appellant raises two questions for this Court’s review:

       1.    Was trial counsel ineffective under the Sixth Amendment
       when there existed a conflict of interest when the attorney
       represented both [Appellant] and the witness who initiated the
       proceedings against him?

       2.    Was trial counsel ineffective under the Sixth Amendment
       for causing [Appellant] to enter a guilty plea that was not
       knowing, voluntary and intelligent?

(Appellant’s Brief, at 4).

             This Court’s standard of review regarding a PCRA court’s
       order is whether the determination of the PCRA court is
       supported by the evidence of record and is free of legal error.
       Great deference is granted to the findings of the PCRA court, and
       these findings will not be disturbed unless they have no support
       in the certified record. Moreover, a PCRA court may decline to
       hold a hearing on the petition if the PCRA court determines that
       a petitioner’s claim is patently frivolous and is without a trace of
       support in either the record or from other evidence.



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2
  The order originally entered on February 11, 2014 did not address
counsel’s motion to withdraw but, on March 12, 2014, the court filed an
order amending the February 11, 2014 order to include the granting of
counsel’s motion. (See Order, 3/12/14, at 1).
3
  Pursuant to the court’s order, Appellant filed a timely Rule 1925(b)
statement of errors on April 2, 2014, and the court filed a Rule 1925(a)
opinion on April 4, 2014, in which it relied on the reasons stated in its
November 26, 2013 opinion and order. See Pa.R.A.P. 1925.




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Commonwealth v. Carter, 21 A.3d 680, 682 (Pa. Super. 2011) (citations

and quotation marks omitted).

       To obtain relief on a claim for ineffective assistance of counsel,

Appellant must establish: “(1) that the [underlying] claim is of arguable

merit; (2) that counsel had no reasonable strategic basis for his or her

action or inaction; and, (3) that, 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, 724 A.2d 326, 333 (Pa.

1999) (citing Commonwealth v. Pierce, 527 A.2d 973, 975-76 (Pa.

1987)). Failure to prove any of the three prongs prevents an appellant from

succeeding on the claim.       See Commonwealth v. Robinson, 877 A.2d

433, 439 (Pa. 2005) (citation omitted).

       In his first issue, Appellant alleges that counsel rendered ineffective

assistance because of a conflict of interest that resulted in his involuntary

guilty plea. (See Appellant’s Brief, at 9-11). Specifically, Appellant claims

that   “the   criminal   proceedings   against   [him   were    initiated]   by   the

witness/complainant [who] was being represented by the same Public

Defenders Office [as Appellant,]” which resulted in “counsel’s unwillingness

to take this case to trial.” (Appellant’s Brief, at 10). This issue lacks merit.

       It is well-settled that “[a] defendant cannot prevail on a conflict of

interest claim absent a showing of actual prejudice.”          Commonwealth v.

Weiss, 81 A.3d 767, 794 (Pa. 2013) (citations omitted); see also


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Commonwealth v. Hawkins, 787 A.2d 292, 297 (Pa. 2001) (requiring a

post-conviction petitioner to demonstrate that counsel’s prior representation

of a Commonwealth witness adversely affected counsel's representation of

the petitioner).

       However, other than speculation, Appellant provides no evidence of

actual prejudice. (See Appellant’s Brief, at 8-10). Indeed, a review of the

record reveals that Appellant’s guilty plea resulted in the Commonwealth

withdrawing its charge of possession of drug paraphernalia.       (See Order,

10/08/12, at unnumbered page 2). It also waived the mandatory minimum

sentence on the charge of PWID that it could have sought because a firearm

was located in close proximity to the controlled substance. (See PCRA Ct.

Op., at 4; N.T. Guilty Plea and Sentencing Hearing, 10/02/12,4 at 21); see

also 42 Pa.C.S.A. § 9712.1; Commonwealth v. Hawkins, 45 A.3d 1123,

1131 (Pa. Super. 2012), appeal denied, 53 A.3d 756 (Pa. 2012) (noting that

presence of controlled substance and firearm in same residence satisfies the

close proximity requirement of section 9712.1).

       Accordingly, Appellant has failed to establish that his underlying claim

of counsel’s conflict of interest has any merit. (See Appellant’s Brief, at 8-

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4
  The cover of the transcript for the guilty plea and sentencing hearing
contains the date of October 10, 2012. However, this appears to be a
typographical error because the docket confirms that Appellant entered his
guilty plea on October 2, 2012.        Therefore, we will use that date in
identifying the hearing notes of testimony.



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10); see also Weiss, supra at 794; Robinson, supra at 439; Kimball,

supra at 333. Additionally, a review of the record reveals that Appellant’s

guilty plea was knowingly, voluntarily, and intelligently entered.

      It is well-settled that “[a] plea of guilty is unlawfully induced where the

circumstances make it likely that the inducement caused the petitioner to

plead guilty and the petitioner is innocent.”    Commonwealth v. Rachak,

62 A.3d 389, 394 (Pa. Super. 2012), appeal denied, 67 A.3d 796 (Pa. 2013)

(citing 42 Pa.C.S.A. § 9543(a)(iii)). Further,

                   [i]n order for a guilty plea to be
            constitutionally valid, the guilty plea colloquy must
            affirmatively show that the defendant understood
            what the plea connoted and its consequences. This
            determination is to be made by examining the
            totality of the circumstances surrounding the entry of
            the plea. [A] plea of guilty will not be deemed
            invalid if the circumstances surrounding the entry of
            the plea disclose that the defendant had a full
            understanding of the nature and consequences of his
            plea and that he knowingly and voluntarily decided
            to enter the plea.

      Our law presumes that a defendant who enters a guilty plea was
      aware of what he was doing. He bears the burden of proving
      otherwise. [Commonwealth v.] Pollard, 832 A.2d [517,] 523
      [(Pa. Super. 2003)] (citations omitted). “[W]here the record
      clearly demonstrates that a guilty plea colloquy was conducted,
      during which it became evident that the defendant understood
      the nature of the charges against him, the voluntariness of the
      plea is established.” Commonwealth v. McCauley, 797 A.2d
      920, 922 (Pa. Super. 2001) [(citation omitted)].

Commonwealth v. Rush, 909             A.2d 805, 808       (Pa. Super. 2006).

Therefore, “[a] defendant is bound by the statements he makes during his

plea colloquy, and may not assert grounds for withdrawing the plea that

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contradict statements made when he pled.”        McCauley, supra at 922

(citation omitted).

      In this case, during the guilty plea and sentencing hearing, Appellant

testified that he was not suffering from the effects of anything that would

render him unable to understand the proceedings. (See N.T. Guilty Plea and

Sentencing Hearing, 10/02/12, at 3). He stated that he had sufficient time

to discuss his case and his decision to plead guilty with his attorney, and

that she had addressed any concerns that he had. (See id. at 6). Although

Appellant stated that he was not one hundred percent satisfied with

counsel’s representation, (see id. at 6; see also Written Guilty Plea,

10/02/12, at 5 ¶ 25), the court expressly questioned him about this

statement and he responded that there were no issues about his case that

he wanted to discuss with counsel and there was nothing he wanted her to

do that she had not done. (See N.T. Guilty Plea and Sentencing Hearing,

10/02/12, at 6-7).    Appellant instead asked the court about how the

Commonwealth and his attorney arrived at his sentence, and he indicated

that he understood the explanation and that he had no other questions.

(See id. at 7-8).

      Appellant also agreed that he was entering his plea in a “knowing,

intelligent, and voluntary manner.” (Id. at 8). Appellant testified that he

knew what he was doing, what the Commonwealth would have to prove if he

went to trial, the risks and maximum sentences he could incur, the rights he


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was giving up by pleading guilty, the consequences of pleading guilty, and

that it was his choice to do so. (See id.). He admitted that he was guilty of

the charges of person not to possess a firearm and possession with intent to

deliver marijuana, the factual basis of the guilty plea, and that he had

previous convictions for possession with intent deliver. (See id. at 8-9).

        Additionally, Appellant completed a written guilty plea. (See Written

Guilty Plea, 10/02/12, at 1-6). In the written guilty plea, Appellant stated

that his attorney explained all of the elements of the crimes to which he

intended to plead guilty. (See id. at 2 ¶ 2, 5 ¶ 24). He represented that he

could read, write, and understand English, that he was not under the

influence of any alcoholic beverages or drugs, and that he was not receiving

treatment for any mental health issues. (See id. at 5 ¶¶ 26, 30, 6 ¶ 32).

Appellant stated that it was his decision to plead guilty. (See id. at 5 ¶ 21).

Importantly, the written guilty plea contained the following language to

which Appellant responded, “yes:”         “Do you understand that by pleading

guilty you are waiving, or giving up, your right to file any pre-trial motions[,]

waiving any such motions already filed[, and] giving up your right to appeal

any adverse decisions on any motions already heard by the court?” (Id. at

3 ¶ 15).

        Therefore, based on our review of the thorough written guilty plea and

the hearing notes of testimony, we conclude that the PCRA court properly

found    that   Appellant’s   guilty   plea   was   knowingly,   voluntarily,   and


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intelligently entered.     (See PCRA Ct. Op., at 6).   Additionally, there is no

evidence that an “inducement caused the petitioner to plead guilty and the

petitioner is innocent.”      Rachak, supra at 394.    Accordingly, Appellant’s

first issue lacks merit. See Carter, supra at 682.

       Similarly, in his second issue, Appellant argues that “trial counsel

rendered ineffective assistance . . . where [he] was coerced into entering

into a guilty plea that was not knowing[], voluntary, nor intelligent[].”

(Appellant’s Brief, at 11). Specifically, he claims that “[t]he proceedings in

this matter were rushed” and he “was not made completely aware that by

his pleading guilty he would not be able to relitigate . . . his suppression

motion.”5 (Id. at 11). We disagree.

       Appellant provides no evidence to support his claim that the

proceedings were “rushed,” (Appellant’s Brief, at 11), and the record reveals

that Appellant expressly was made aware that, by pleading guilty, he would

not be able to appeal any pre-trial rulings.       (See Written Guilty Plea,

10/02/12, at 3; see also N.T. Guilty Plea and Sentencing Hearing,

10/02/12, at 8).



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5
  Appellant fails to provide citations to the record or any pertinent   authority
in support of his claim.       (See Appellant’s Brief, at 11-12);       Pa.R.A.P.
2119(a)-(c). We note that we could find this issue waived,              however,
because we can discern his argument and conduct meaningful              appellate
review, we will review the issue on its merits.



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       Additionally, as discussed more fully above, we conclude that the

notes of testimony from the guilty plea hearing and the written guilty plea

colloquy support the PCRA court’s finding that Appellant entered into his plea

knowingly, voluntarily, and intelligently. (See PCRA Ct. Op., at 6); see also

Rachak, supra at 394; Rush, supra at 808; McCauley, supra at 922.

Accordingly, Appellant’s second issue lacks merit.    See Carter, supra at

682.

       Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/14/2014




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