J-S03021-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                            IN THE SUPERIOR COURT OF
                                                              PENNSYLVANIA
                           Appellee

                      v.

MICHAEL BABISH

                           Appellant                       No. 1509 EDA 2014


                    Appeal from the PCRA Order April 9, 2014
                In the Court of Common Pleas of Monroe County
              Criminal Division at No(s): CP-45-CR-0000574-2011
                                          CP-45-CR-0001440-2011


BEFORE: FORD ELLIOTT, P.J.E., PANELLA, J., and OTT, J.

MEMORANDUM BY PANELLA, J.                                      FILED APRIL 07, 2015

      Appellant, Michael Babish, appeals from the order dismissing his

petition pursuant to the Post Conviction Relief Act (“PCRA”). In his petition,

Babish alleged that his appointed counsel rendered ineffective assistance in

preparation    for   his   guilty   plea,   rendering    the    plea   unknowing   and

involuntary. After careful review, we affirm.

      Babish was arrested after multiple firearms were found in or near his

vehicle at the scene of an accident. While hospitalized, Babish admitted to

committing a series of burglaries. The Commonwealth subsequently charged

Babish with an assortment of crimes associated with five separate

burglaries.
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     On March 7, 2012, Babish pled guilty pursuant to a negotiated plea

agreement to one count of burglary and two counts of criminal trespass.

Shortly thereafter, Babish withdrew his guilty plea indicating that he was

having a conflict with his appointed counsel, the Monroe County Public

Defender’s Office. Babish’s motion to appoint conflict counsel, filed by the

public defender, was denied.

     On July 5, 2012, Babish appeared for trial in this matter, represented

by the public defender.   After a colloquy, Babish again pled guilty to one

count of burglary and two counts of criminal trespass.       The trial court

subsequently imposed a sentence of imprisonment of 117 months to 240

months.

     On July 15, 2013, Babish filed a pro se PCRA petition. The PCRA court

appointed counsel to represent Babish, and an amended petition was filed

approximately a month later. After a hearing on the petition, the PCRA court

dismissed Babish’s amended PCRA petition on April 9, 2014.         This timely

appeal followed.

     On appeal, Babish argues that the PCRA court erred in concluding that

the public defender had rendered effective assistance of counsel to Babish in

preparation for his guilty plea.   Our standard of review of a PCRA court’s

denial of a petition for post-conviction relief is well-settled.    We must

examine whether the record supports the PCRA court’s determination and

whether the PCRA court’s determination is free of legal error.            See


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Commonwealth v. Hall, 867 A.2d 619, 628 (Pa. Super. 2005). The PCRA

court’s findings will not be disturbed unless there is no support for the

findings in the certified record.    See Commonwealth v. Carr, 768 A.2d

1164, 1166 (Pa. Super. 2001).          Our scope of review is limited by the

parameters of the PCRA. See Commonwealth v. Heilman, 867 A.2d 542,

544 (Pa. Super. 2005).

      To be eligible for relief under the PCRA, a petitioner must plead and

prove by a preponderance of the evidence that his conviction or sentence

resulted   from   one   of   the   errors   listed   in   42   PA.CONS.STAT.ANN.   §

9543(a)(2)(i)-(viii). See Commonwealth v. Albrecht, 720 A.2d 693, 698

(1998). Section 9543(a)(2) requires, inter alia,

           (2) That the conviction or sentence resulted from one or
           more of the following:

           (i) A violation of the Constitution of this Commonwealth
           or the Constitution or laws of the United States which, in
           the circumstances of the particular case, so undermined
           the    truth-determining     process   that   no   reliable
           adjudication of guilt or innocence could have taken place.

           (ii) Ineffective assistance of counsel which, in the
           circumstances of the particular case, so undermined the
           truth-determining process that no reliable adjudication of
           guilt or innocence could have taken place.

           (iii) A plea of guilty unlawfully induced where the
           circumstances make it likely that the inducement caused
           the petitioner to plead guilty and the petitioner is
           innocent.

           (iv) The improper obstruction by government officials of
           the petitioner's right of appeal where a meritorious
           appealable issue existed and was properly preserved in
           the trial court.

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          (v) Deleted.

          (vi) The unavailability at the time of trial of exculpatory
          evidence that has subsequently become available and
          would have changed the outcome of the trial if it had
          been introduced.

          (vii) The imposition of a sentence greater than the lawful
          maximum.

          (viii) A proceeding in a tribunal without jurisdiction.

42 PA.CONS.STAT.ANN. § 9543(a)(2)(i)-(viii).

      As noted, Babish argues that the public defender was ineffective in

advising him to accept the negotiated plea agreement.               In addressing

Babish’s claim of counsel’s ineffectiveness, we turn to the following principles

of law:

      In order for Appellant to prevail on a claim of ineffective
      assistance of counsel, he must show, by a preponderance of the
      evidence, ineffective assistance of counsel which, in the
      circumstances of the particular case, so undermined the truth-
      determining process that no reliable adjudication of guilt or
      innocence could have taken place … Appellant must
      demonstrate: (1) the underlying claim is of arguable merit; (2)
      that counsel had no reasonable strategic basis for his or her
      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. Johnson, 868 A.2d 1278, 1281 (Pa. Super. 2005).

Moreover, “[w]e presume counsel is effective and place upon Appellant the

burden of proving otherwise.”       Commonwealth v. Springer, 961 A.2d

1262, 1267-1268 (Pa. Super. 2008) (citation omitted). This Court will grant

relief only if Appellant satisfies each of the three prongs necessary to prove

counsel ineffective. See Commonwealth v. Natividad, 938 A.2d 310, 322


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(Pa. 2007). Thus, we may deny any ineffectiveness claim if “the evidence

fails to meet a single one of these prongs.” Id., at 321.

        A claim of ineffectiveness in the context of a guilty plea may provide

relief only if the alleged ineffectiveness caused an involuntary or unknowing

plea.    See Commonwealth v. Mendoza, 730 A.2d 503, 505 (Pa. Super.

1999). “[A] defendant is bound by the statements which he makes during

his plea colloquy.” Commonwealth v. Barnes, 687 A.2d 1163, 1167 (Pa.

1997) (citations omitted). As a result, a defendant “may not assert grounds

for withdrawing the plea that contradict statements made when he pled

guilty.”   Id.;   Commonwealth v. Yeomans, 24 A.3d 1044 (Pa. Super.

2011). “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.”

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

and internal quotation marks omitted).

        Babish contends that he wished to challenge the voluntariness of his

admission and the legality of the search and seizure of the firearms from his

vehicle. This was the basis of his initial withdrawal of his guilty plea. Thus,

Babish argues, the public defender’s failure to file such motions prior to the

guilty plea constituted ineffective assistance of counsel.

        However, at the July 5 guilty plea, the trial court specifically addressed

this issue during the oral colloquy.


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      THE COURT:        I note Mr. Babish that you had previously
      entered a guilty plea in this matter and you withdrew your plea
      in front of another judge, Judge Williamson, prior to sentencing;
      is that correct?

      MR. BABISH:       Yes.

      THE COURT:       And it’s my understanding in speaking with the
      attorneys    that part of the problem you had was a
      communication issue or an issue you were having with your
      attorney at that time, Mr. Sayer, from the Public Defender’s
      Office.

      MR. BABISH:       Correct.

      THE COURT:       So here we are again today. And the concern
      from the Commonwealth’s perspective, and I think from my
      perspective as well, is that you are now – that issue has been
      resolved and you’re satisfied with the representation that you
      have from Mr. Labar. I want to make sure of that.

      MR. BABISH:       Yes.

      THE COURT:        He’s answered every question that you’ve had?

      MR. BABISH:       Yes, he has.

      THE COURT:        He has taken the time to talk to you?

      MR. BABISH:       Yes, he has.

      THE COURT:        Are you satisfied with his representation of you
      in this matter?

      MR. BABISH:       Yes, I am.

N.T., Guilty Plea Hearing, 7/5/12, at 8-9.

      Thus, Babish admitted, on the record, that the problem he had with his

initial guilty plea had been addressed.      Furthermore, Babish admitted that

plea counsel had answered every question and that he was satisfied with


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counsel’s actions.   Accordingly, he cannot now contend that his sworn

testimony was false on this issue. We therefore agree with the PCRA court

that Babish cannot establish that a conflict with the public defender’s office

rendered his guilty plea unknowing and involuntary.

      Order affirmed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/7/2015




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