J-S44022-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA              :   IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
                                           :
              v.                           :
                                           :
                                           :
 BENJAMIN GAINES                           :
                                           :
                    Appellant              :   No. 3740 EDA 2016

               Appeal from the PCRA Order November 4, 2016
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                      No(s): CP-51-CR-0003690-2012

BEFORE: LAZARUS, J., MURRAY, J., and MUSMANNO, J.

MEMORANDUM BY MURRAY, J.:                           FILED AUGUST 07, 2018

      Benjamin Gaines (Appellant), pro se, appeals from the order dismissing

his petition filed pursuant to the Post Conviction Relief Act (PCRA), 42

Pa.C.S.A. §§ 9541-9546. We affirm.

      The facts underlying this appeal stem from a February 9, 2012 incident

during which Appellant shot Amir Jones in the face, severely and permanently

injuring him. The victim subsequently identified Appellant as the shooter.

      The PCRA court summarized the remainder of the procedural history as

follows:

         On February 6, 2013, [Appellant] entered a negotiated plea on
      the charges of [a]ttempted [m]urder and [possession of an
      instrument of crime (PIC)]. He was immediately sentenced, in
      accordance with the plea agreement, to a period of confinement
      in a state correctional facility of 15 to 30 years on the [a]ttempted
      [m]urder charge and a concurrent period of confinement of 2½ to
      5 years on the PIC charge. [Appellant] did not file a direct appeal.
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          On February 4, 2014, [Appellant] timely filed the instant pro se
       PCRA [p]etition. On June 18, 2014, Coley O’Brien Reynolds[,]
       Esq., was appointed to represent [Appellant] on his PCRA
       [p]etition. On August 29, 2016, Mr. Reynolds filed a[] thorough
       and exhaustive no-merit Finley Letter[1] with the [c]ourt
       concluding that “[Appellant]’s claims are entirely lacking in merit
       and there exist no other issues having arguable merit that could
       be raised in an amended petition[.]” On September 16, 2015, the
       [c]ourt, after a careful review of the record and PCRA [c]ounsel’s
       Finley letter, issued its notice, pursuant to Rule 907 of the
       Pennsylvania Rules of Criminal Procedure (Pa.R.Crim.P.), advising
       [c]ounsel and [Appellant] that it intended to dismiss [Appellant]’s
       petition within twenty days of the date of its notice.          On
       September 19, 2016, [Appellant] filed a “Motion for Leave to
       Amend PCRA Petition.” On November 8, 2016, the [c]ourt issued
       an [o]rder [permitting counsel to withdraw and] dismissing
       [Appellant]’s PCRA [p]etition as being without merit.

          On November 21, 2016, [Appellant] timely filed the instant
       appeal to the Superior Court of Pennsylvania. On December 6,
       2016, this [c]ourt filed and served on [Appellant] an [o]rder
       pursuant to Rule 1925(b) of the Pennsylvania Rules of Appellate
       Procedure, directing [Appellant] to file and serve a [s]tatement of
       [e]rrors [c]omplained of on [a]ppeal, within twenty-one days of
       the [c]ourt’s [o]rder.

          On December 20, 2016, [Appellant] timely filed a [s]tatement
       of [e]rrors [c]omplained of on [a]ppeal.

PCRA Court Opinion, 9/6/17, at 1-2.

       Appellant presents the following issues for review:

       1) Did the trial court err by dismissing the properly filed PCRA
       petition given [that] Appellant had entered an involuntary and
       unknowing guilty plea as a result of an ineffective assistance of
       counsel, was a colorable, meritorious claim?




____________________________________________


1  See Commonwealth v. Turner, 544 A.2d 927                       (Pa.   1988);
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988).

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       2) Does the trial court’s dismissal of the properly filed PCRA
       petition without an evidentiary hearing constitute a due process
       violation?

       3) Did the trial court err by failing to grant the motion to amend
       the PCRA petition or acknowledging, on the record, the amended
       PCRA petition?

Appellant’s Brief at 5.

       “In reviewing the denial of PCRA relief, we examine whether the PCRA

court’s determination is supported by the record and free of legal error.”

Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014) (quotations and

citations omitted).       “To be entitled to PCRA relief, [an] appellant must

establish, by a preponderance of the evidence, his conviction or sentence

resulted from one or more of the enumerated errors in 42 Pa.C.S.[A.] §

9543(a)(2)[.]” Id.

       First, Appellant challenges plea counsel’s effectiveness as it relates to

his guilty plea. In deciding ineffective assistance of counsel claims, we begin

with   the   presumption       that   counsel   rendered   effective   assistance.

Commonwealth v. Bomar, 104 A.3d 1179, 1188 (Pa. 2014). To overcome

that presumption, the petitioner must establish: “(1) the underlying claim has

arguable merit; (2) no reasonable basis existed for counsel’s action or failure

to act; and (3) the petitioner suffered prejudice as a result of counsel’s error,

with prejudice measured by whether there is a reasonable probability that the

result of the proceeding would have been different.” Id. (citation omitted).

To demonstrate prejudice in an ineffective assistance of counsel claim, “the


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petitioner must show that there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been

different.” Commonwealth v. King, 57 A.3d 607, 613 (Pa. 2012). If the

petitioner fails to prove any of these prongs, the claim is subject to dismissal.

Bomar, 104 A.3d at 1188.

      “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) (quotations and citation omitted).

“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.

(quotations and citations omitted).       “Thus, to establish prejudice, the

defendant must show that there is a reasonable probability that, but for

counsel’s errors, he would not have pleaded guilty and would have insisted on

going to trial.” Commonwealth v. Barndt, 74 A.3d 185, 192 (Pa. Super.

2013) (quotations and citations omitted). “The reasonable probability test is

not a stringent one; it merely refers to a probability sufficient to undermine

confidence in the outcome.” Id. (quotations and citations omitted).

      With respect to valid guilty pleas, this Court has explained:

      A valid guilty plea must be knowingly, voluntarily and intelligently
      entered. 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

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       aware of his rights and the consequences of his plea. Specifically,
       the court must affirmatively demonstrate the defendant
       understands: (1) the nature of the charges to which he is 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) that the court is not
       bound by the terms of the agreement unless the court accepts the
       agreement. This Court will evaluate the adequacy of the plea
       colloquy and the voluntariness of the resulting plea by examining
       the totality of the circumstances surrounding the entry of that
       plea.

Commonwealth v. Kelley, 136 A.3d 1007, 1013 (Pa. Super. 2016) (citations

omitted).

       Appellant argues that his guilty plea was not knowing, voluntary, and

intelligent due to plea counsel’s ineffectiveness. Appellant contends that he

had no choice but to plead guilty because plea counsel did not pursue or

investigate the defenses of diminished capacity2 and self-defense3 on his

behalf.

       Based upon our review of the certified record, including the transcript of

Appellant’s guilty plea hearing and his written colloquy, we conclude that

Appellant’s guilty plea was knowing, voluntary, and intelligent. The record

reflects that the trial court informed Appellant of the nature of the charges to

which he pled guilty, the factual basis for the plea, his right to trial by jury,


____________________________________________


2 Appellant claims that he was under the influence of narcotics when he shot
the victim.

3 Appellant asserts that he shot the victim believing he was the leader of a
“group” who had “harassed and threatened to kill him.” Appellant’s Brief at
12-13.

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the presumption of innocence, the sentences, and that it was accepting the

negotiated sentence.    N.T. 2/6/13, at 5-24; Written Guilty Plea Colloquy,

2/6/13, at 1-4.

      Importantly, during the oral colloquy, Appellant indicated that he did not

need any additional time to discuss possible defenses with plea counsel, and

that he was satisfied with counsel’s representation. Id. at 13-14. Appellant

acknowledged that he had decided to exchange his rights, including the right

to raise defenses, in exchange for a favorable sentence of 15 to 30 years of

incarceration for an attempted murder charge where the victim unequivocally

identified Appellant as the perpetrator. Id. at 8-12, 23-24. Appellant stated

that he was understood the ramifications of pleading guilty and that he was

entering his plea on his own volition. Id. at 8-12. He cannot now contradict

these statements.

      By arguing that plea counsel’s ineffectiveness forced him into pleading

guilty, Appellant essentially admits that his responses to the plea colloquies

were untruthful. A defendant who elects to plead guilty, however, “is bound

by the statements he makes in open court while under oath and he may not

later assert grounds for withdrawing the plea which contradict the statements

he made at his plea colloquy.” Commonwealth v. Turetsky, 925 A.2d 876,

881 (Pa. Super. 2007) (quotations and citations omitted).          “A criminal

defendant who elects to plead guilty has a duty to answer questions

truthfully.” Id. Accordingly, because the record supports the PCRA court’s


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determination that Appellant’s guilty plea was knowing, voluntary, and

intelligent, we conclude that the trial court did err in determining that this

claim lacked arguable merit.4

       Second, Appellant argues that the PCRA court erred in dismissing his

case without a hearing. This Court has explained:

              [T]he right to an evidentiary hearing on a post-
              conviction petition is not absolute. It is within the
              PCRA court’s discretion to decline to hold a hearing if
              the petitioner’s claim is patently frivolous and has no
              support either in the record or other evidence. It is
              the responsibility of the reviewing court on appeal to
              examine each issue raised in the PCRA petition in light
              of the record certified before it in order to determine
              if the PCRA court erred in its determination that there
              were no genuine issues of material fact in controversy
              and in denying relief without conducting an
              evidentiary hearing.

Commonwealth v. Walls, 993 A.2d 289, 295 (Pa. Super. 2010) (internal

citations and brackets omitted). If the PCRA court “can determine without an

evidentiary hearing that one of the prongs cannot be met, then no purpose




____________________________________________


4 Additionally, our case law is clear that the entry of a guilty plea constitutes
waiver of all defenses and defects except claims of lack of jurisdiction, invalid
guilty plea, and illegal sentence. See Commonwealth v. Roden, 730 A.2d
995, 997 n.2 (Pa. Super. 1999) (“Upon entry of a guilty plea, a defendant
generally waives all defects and defenses except those concerning the validity
of the plea, the jurisdiction of the trial court, and the legality of the sentence
imposed.”); see also Commonwealth v. Messmer, 863 A.2d 567, 571 (Pa.
Super. 2004) (“The entry of a guilty plea constitutes a waiver of all defenses
and defects except claims of lack of jurisdiction, invalid guilty plea, and illegal
sentence.”). Because the record reflects Appellant’s clear desire to plead
guilty, he cannot now challenge counsel’s failure to raise these defenses.

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would be advanced by holding an evidentiary hearing.” Commonwealth v.

Jones, 942 A.2d 903, 906 (Pa. Super. 2008).

      Here, Appellant argues that an evidentiary hearing was necessary for

him to present evidence proving his claim that his guilty plea was not knowing,

voluntary, and intelligent. As discussed above, the evidence Appellant would

have presented in support of this claim would have been testimony that

directly contradicted the statements he made during his guilty plea colloquy.

This, however, is not an avenue for relief. Thus, there were no genuine issues

of material fact in controversy and no purpose would have been served by

holding a hearing.     Accordingly, the PCRA court did not err in denying

Appellant’s petition without a hearing.

      Finally, Appellant argues that the PCRA court erred in denying his motion

for leave to amend his PCRA petition. Appellant maintains that Rule 905 of

the Pennsylvania Rules of Appellant Procedure requires courts to “freely”

permit the filing of amended PCRA petitions.

      Rule 905 states that a PCRA court “may grant leave to amend or

withdraw a petition for post-conviction collateral relief at any time.

Amendment     shall   be   freely   allowed   to   achieve   substantial   justice.”

Pa.R.Crim.P. 905(a) (emphasis added). As our Supreme Court has explained,

“[t]he statutory word ‘may’ as contrasted with ‘shall’ signals a discretionary

rather than a mandatory act.” Commonwealth v. Williams, 828 A.2d 981,




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988 (Pa. 2003). Thus, “[t]he [PCRA] court retains discretion whether or not

to grant a motion to withdraw or amend a post-conviction petition.” Id.

      The PCRA court explained its decision to deny Appellant’s motion as

follows:

      In his motion, [Appellant] essentially reargued [plea] counsel’s
      ineffectiveness in an attempt to circumvent Mr. Reynolds’
      exhaustive discussion and conclusion contained in his Finley
      Letter, which clearly address the issues before the Court.
      Additionally, [Appellant], for the first time, without substantiation,
      whimsically alleges that [plea] counsel was ineffective for failing
      to suppress statements made by him “after ingesting potent pain
      killers at the hospital immediately prior to waiving his right to
      remain silent.” Not only is there no evidence in the record to
      remotely suggest that [Appellant] received any sort of medical
      treatment prior to giving his statement to the investigating
      officers, the Commonwealth advised the [c]ourt that it would not
      be introducing his statement at trial. (N.T., 2/6/2013 pg. 18).
      Raising nothing of substance, it was proper for the [c]ourt to deny
      [Appellant]’s motion to amend[.]

PCRA Court Opinion, 9/6/17, at 3.

      We have reviewed the certified record on appeal, including Appellant’s

motion for leave to amend his PCRA petition and the guilty plea hearing

transcript wherein the Commonwealth indicated it would not introduce the

statement at issue at trial, and we determine that the PCRA court accurately

assessed the arguments in Appellant’s motion and the evidence before the

court that supported the denial of that motion. Because Appellant did not

provide the PCRA court with a legitimate reason to permit him to amend his

PCRA petition, we conclude that court did not abuse its discretion in denying

his motion.


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     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/7/18




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