J-S49024-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

EDWARD WROTEN

                        Appellant                     No. 273 EDA 2016


              Appeal from the PCRA Order December 18, 2015
              In the Court of Common Pleas of Chester County
            Criminal Division at No(s): CP-15-CR-0001127-2013


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

MEMORANDUM BY OLSON, J.:                               FILED JULY 15, 2016

      Appellant, Edward Wroten, appeals from the December 18, 2015 order

denying his first petition filed pursuant to the Post-Conviction Relief Act

(“PCRA”), 42 Pa.C.S.A. §§ 9541-9546.     We affirm.

      The PCRA court summarized the relevant factual background of this

case as follows:

      On March [17, 2013], at approximately 1:30 a.m., [Appellant]
      and [the] victim [] got into an argument that turned physical.

      During the struggle, the victim was punched and fell to the
      ground hitting his head on the ground. When [the victim] was
      laying [sic] on the ground, [Appellant] was seen kicking the
      victim twice in the head. The victim suffered serious bodily
      injury, including a brain injury, which caused the victim to be in
      a coma for a period of time and required extensive brain surgery
      to treat the damage that he received in this matter.

PCRA Court Opinion, 12/18/2015, at 1 (citation omitted).



*Former Justice specially assigned to the Superior Court.
J-S49024-16


        The relevant procedural history of this case is as follows.   Appellant

was charged with simple assault,1 recklessly endangering another person,2

and aggravated assault.3         On February 6, 2015, Appellant pled guilty to

aggravated assault.       On April 9, 2014, pursuant to a stipulation, Appellant

was sentenced to four to eight years’ incarceration. Appellant did not file a

direct appeal.

        Appellant filed a counseled PCRA petition on February 4, 2015 alleging

that ineffective assistance of counsel, specifically inappropriate advice

regarding the entry of a guilty plea, caused him to enter an invalid plea. The

PCRA court held an evidentiary hearing on September 15 and 16, 2015. The

PCRA court denied Appellant’s PCRA petition on December 18, 2015. This

timely appeal followed.4

        Appellant presents three issues for our review:

        1. Was [Appellant] required to [raise his claims on direct
           review]?



____________________________________________


1
    18 Pa.C.S.A. § 2701(a)(1).
2
    18 Pa.C.S.A. § 2705.
3
    18 Pa.C.S.A. § 2702(a)(1).
4
  The PCRA court did not order Appellant to file a concise statement of errors
complained of on appeal. See Pa.R.A.P. 1925(b). Instead, the PCRA court
relied on its December 18, 2015 opinion which stated the reasons for its
denial of Appellant’s PCRA petition.



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        2. Did the trial court impermissibly involve [itself] in pretrial
           negotiations in the instant matter, prior to imposing
           sentence?

        3. Did [Appellant] present evidence that he was not guilty of
           aggravated assault?

Appellant’s Brief at 4.5

        Preliminarily, we note that Appellant properly raised an ineffective

assistance of counsel claim in his PCRA petition.       In Commonwealth v.

Grant, 813 A.2d 726 (Pa. 2002), our Supreme Court held that claims of trial

counsel’s ineffectiveness must almost always be deferred until collateral

review.     Id. at 738.      Therefore, Appellant did not waive his ineffective

assistance of counsel claim by waiting until his PCRA petition to raise the

claim.

        We consider Appellant’s second and third issues together.     As noted

above, the only claim raised in Appellant’s PCRA petition was that he “[pled]

guilty based on inappropriate advice from his trial [counsel]. He should be

permitted to withdraw his plea and restart the process of deciding whether

or not to plead based on accurate understanding of his rights. The advice he

was given constitutes ineffective assistance of counsel.”       PCRA Petition,

2/4/15, at 4. In his brief, however, Appellant does not address the alleged

ineffective assistance his plea counsel rendered in advising him to plead


____________________________________________


5
    We have re-numbered the issues for ease of disposition.



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guilty.   As such, his ineffective assistance claim is waived.    See Pa.R.A.P.

2119(a).

       Instead, in his second issue Appellant argues that the trial court’s

wrongful involvement in plea negotiations unlawfully induced his plea.        In

addition, Appellant’s third issue argues that he is actually innocent of

aggravated assault and guilty only of simple assault.        See 42 Pa.C.S.A.

§ 9543(a)(2)(iii) (A petitioner is entitled to PCRA relief if his or her “plea of

guilty [was] unlawfully induced where the circumstances make it likely that

the inducement caused the petitioner to plead guilty and the petitioner is

innocent.”).     These claims are waived as they were not included in

Appellant’s PCRA petition.          Pa.R.A.P. 302(a); see Commonwealth v.

Dennis, 950 A.2d 945, 956 (Pa. 2008). As Appellant has waived his issues

on appeal, we affirm the denial of relief.6

       Order affirmed.


____________________________________________


6
  Even if we were to reach the merits of Appellant’s claim that he is innocent
of aggravated assault, we would conclude he is not entitled to relief. In
order to be entitled to relief under section 9543(a)(2)(iii), a petitioner must
plead and prove that he is actually innocent. In this case, Appellant
concedes that he kicked the victim twice in the head while the victim was on
the ground.        Such action constitutes aggravated assault.              See
Commonwealth v. Rodriquez, 673 A.2d 962, 966 (Pa. Super. 1996),
appeal denied, 692 A.2d 565 (Pa. 1997) (citations omitted);
Commonwealth v. Glover, 449 A.2d 662, 665 (Pa. Super. 1982), aff’d,
458 A.2d 935 (Pa. 1983); Commonwealth v. Gregory, 406 A.2d 539, 542
(Pa. Super. 1979) (en banc). Accordingly, Appellant failed to plead and
prove that he is actually innocent.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/15/2016




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