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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA


                    v.

BENJAMIN RAYSOR

                         Appellant                 No. 1508 WDA 2016


                Appeal from the PCRA Order October 4, 2015
             In the Court of Common Pleas of Allegheny County
            Criminal Division at No(s): CP-02-CR-0012069-2013


BEFORE: BOWES, J., SOLANO, J., AND FORD ELLIOTT, P.J.E.

MEMORANDUM BY BOWES, J.:                  FILED NOVEMBER 17, 2017

      Benjamin Raysor appeals from the October 4, 2015 denial of his

petition for relief pursuant to the Post Conviction Relief Act (“PCRA”). We

affirm and grant counsel’s petition to withdraw.

      On June 16, 2013, Appellant burglarized the Sigma Phi Epsilon

fraternity house on 1057 Morewood Avenue in Pittsburgh.          While the

residents of the home slept, Appellant stole the keys to a 1996 Honda

Accord, a Dell computer, and a Samsung cellular telephone. After locating

the vehicle parked outside of the residence, he used it to flee the scene of

the burglary. Following his apprehension, the Commonwealth charged him

with burglary of an occupied structure while a person is present, and two

counts each of receiving stolen property and theft by unlawful taking. The
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Commonwealth eventually withdrew one count of receiving stolen property

and theft by unlawful taking.     The PCRA court succinctly summarized the

relevant procedural history as follows:

      On February 12, 2014, [Appellant] plead guilty before the
      Honorable Donald E. Machen [to one count each of burglary of a
      home, theft by unlawful taking, and receiving stolen property].
      [He was represented by Lisa Phillips, Esquire, of the Allegheny
      County Public Defender’s Office.]       At the guilty plea, the
      Assistant District Attorney informed the Court that . . . “There is
      going to be a plea of guilty . . . with no agreement as to
      sentence.” [Appellant] acknowledged that he understood that
      there was no agreement to the sentence imposed. [Appellant]
      also waived the reading of the charges and stipulated to the
      summaries of evidence.        . . .  A pre-sentence report and
      psychiatric examination was ordered.

PCRA Court Opinion, 6/28/17, at 2 (footnotes and citation to certified record

omitted).

      The court-ordered psychiatric report was prepared as scheduled;

however, the pre-sentence investigation (“PSI”) was not completed prior to

sentencing.    Appellant subsequently waived his right to the PSI and

proceeded to sentencing, apparently because he did not want to continue to

be housed in the Allegheny County Jail pending the delay. Prior to imposing

the judgment of sentence on May 6, 2014, Judge Machen advised Appellant,

              The pre-sentence investigation report could have given me
      a little bit more insight into the specifics. I think it’s in your best
      interest to allow me to have that done. I understand that you’re
      not happy with the Allegheny County Jail—but I’ll defer to what
      you request. If that’s what you want. I would like you to talk to
      Ms. Phillips again. My feeling is somewhere between what . . .
      Ms. Phillips is requesting, and what the district attorney is
      requesting. I don’t believe that 10 to 20 years is appropriate for

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      you[,] sir. I believe that 5 to 10 years is appropriate on the
      burglary charge . . . [.] I don’t know that the pre-sentence
      investigation report would cause me to move one way or
      another, but what I said is[,] I don’t know because I don’t have
      it. Your Understand[?]

N.T. Sentencing Hearing, 5/6/14, at 10-11.

      After discussing the issue with Attorney Phillips, Appellant inquired

whether the PSI report could result in a sentence greater than the five-to-

ten years that the trial court initially referenced.   Judge Machen advised

Appellant that the answer depended upon the information contained in the

PSI report, but indicated that he was confident that the proposed five-to-

ten-year sentence was reasonable.         Id. at 14.    Appeased, Appellant

confirmed that he would forego the PSI report and proceed to sentencing.

Id. Consistent with all of the preceding discussions, the trial court imposed

five to ten years imprisonment for burglary and no further penalty for the

remaining charges. Appellant did not file post-sentence motions or a direct

appeal.

      On May 1, 2015, Appellant filed a timely PCRA petition.      The PCRA

court appointed Charles R. Pass III, Esquire, who filed an amended petition

asserting that Attorney Phillips provided ineffective assistance by failing to

file an appeal from the judgment of sentence or consult with Appellant about

a potential appeal. Appellant also contended that Attorney Phillips promised

him that he would receive a specific sentence of two to four years

imprisonment pursuant to the plea agreement.

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      During the ensuing evidentiary hearing, on October 3, 2016, Appellant

testified that Attorney Phillips advised him that he would receive a two-to-

four-year sentence under the plea agreement.      N.T. PCRA, 10/3/16, at 7.

After the court imposed the five to ten year term of confinement, he

assumed that Attorney Phillips would file an appeal on his behalf.        Id.

Appellant continued that, on May 9, 2014, three days after sentencing, he

mailed Attorney Phillips a letter from jail wherein he asserted that she had

advised him to expect the two-to-four-year sentence and complaining, inter

alia, that she had ignored his request to file a post-sentence motion to

withdraw his guilty plea. Id. at 8. Appellant testified that Attorney Phillips

failed to respond to his correspondence or file a direct appeal on his behalf.

Id. at 9.

      During cross-examination, Appellant conceded that he neglected to

inform Judge Machen of the promised two-to-four-year term under the plea

agreement and that he did not correct the judge when he stated that the

only agreement related to whether the sentences would run concurrent with

sentences on other convictions Appellant would serve. Id. at 10. Likewise,

Appellant acknowledged that he failed to mention during the sentencing

proceeding the putative discrepancy between the expected sentence and his

actual punishment. Id. at 11.

      Attorney Phillips also testified during the PCRA hearing.   She stated

that she informed Appellant of his potential sentencing exposure of ten to

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twenty years imprisonment as a standard range sentence for burglary

considering his prior record score of a repeat violent offender. Id. at 15, 19.

Attorney Phillips advised Appellant that she would ask for a mitigated range

sentence, but “did not make any promises as to a sentence” or state that

there was any agreement as to the length of the sentence. Id. at 15-16. In

addition, Attorney Phillips testified that she did not recall whether Appellant

was dissatisfied with the sentence that he expected Judge Machen to

impose, which was below the mitigated range.        Id. at 19.   She reported

having no reason to believe that Appellant would want to appeal the lenient

sentence. Id. at 18.

      Similarly, she did not remember Appellant requesting that she file a

direct appeal on his behalf. Id. at 17.    She added that, if Appellant had

requested a post-sentence motion or direct appeal, she would have

complied. Id. 18. As it relates to Appellant’s May 9, 2014 correspondence,

Attorney Phillips explained that she did not recall receiving the missive, and

that she looked through the case files relating to Appellant in her office but

did not locate it.   Id. After considering the foregoing evidence, the PCRA

court denied relief and dismissed Appellant’s petition. This appeal followed.

      On May 31, 2016, Attorney Pass filed with this Court a petition to

withdraw from representation pursuant to Commonwealth v. Turner, 544

A.2d 927 (Pa. 1988) and Commonwealth v. Finley, 550 A.2d 213

(Pa.Super. 1988) (en banc), which we must address at the outset.

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Turner/Finley requires counsel to conduct an independent review of the

record before a court can authorize an attorney's withdrawal. Counsel must

then file a no-merit letter detailing the nature and extent of his review and

list each issue the petitioner wishes to have examined, explaining why those

issues   are   meritless.     Commonwealth          v.   Freeland,    106   A.3d     768

(Pa.Super.     2014)      (citations    omitted).        Counsel     is   required    to

contemporaneously serve upon his client his no-merit letter and application

to withdraw along with a statement that, if the court granted counsel's

withdrawal request, the client may proceed pro se or with a privately

retained attorney. Id. at 774. Thereafter, the reviewing court must conduct

its own independent evaluation of the record and agree with counsel that the

petition is meritless.

       Here, we find that counsel has substantially complied with the

requirements of Turner/Finley. Counsel represented that he reviewed the

record, docket entries, the case files, and the relevant legal authority.            He

advised Appellant in a letter that he could not identify any issues of arguable

merit,1 furnished him with a copy of his petition to withdraw and the

____________________________________________


1 The petition misstated that the PCRA petition was untimely. Attorney Pass
corrected that mistake in the concomitant brief that he filed and served
contemporaneously with the petition to withdraw. The brief, which was filed
in lieu of a no-merit letter, addressed the substance of Appellant’s claims
and explained why they lacked merit. As our jurisprudence views the
briefing procedures set forth in Anders v. California, 386 U.S. 738 (1967),
(Footnote Continued Next Page)


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appellate brief explaining why his claim was meritless, and advised him that

he had the right to retain other counsel or represent himself pro se and file a

response to the petition to withdraw. Appellant did not file a response.

      Counsel presents the following questions for our review:

      1. Whether Attorney Phillips was ineffective-in violation of Article
         I, Section 9 or Article V, Section 9 of the Pennsylvania
         Constitution or the Sixth and Fourteenth Amendments to the
         United States Constitution-in failing to (adequately) consult
         with Defendant about filing, and/or in failing to file, an appeal
         from the May 6, 2014 sentence?

      2. Whether Defendant's guilty plea was involuntary, unknowing,
         unintelligent and the result of ineffective assistance of
         counsel-in violation of Article I, Section 9 of the Pennsylvania
         Constitution and the Sixth and Fourteenth Amendments to
         the United States Constitution where Attorney Phillips
         misrepresented to Defendant that there was a plea
         agreement for a sentence of incarceration of 2 to 4 years in
         this matter when such misrepresentation was material to
         Defendant's decision to plead guilty in this matter?

Turner/Finley brief at 2.

      We address these arguments collectively.        Our standard of review

regarding an order denying a petition under the PCRA is whether the

determination of the PCRA court is supported by the evidence of record and

is free of legal error. Commonwealth v. Davis, 86 A.3d 883, 887



(Footnote Continued) _______________________

as affording greater protection than those prescribed under Turner/Finley,
we also overlook counsel’s misstep in filing an Anders-type brief rather than
the appropriate no-merit letter. See Commonwealth v. Widgins, 29 A.3d
816, 817 n.2 (Pa.Super. 2011)



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(Pa.Super. 2014).      The PCRA court’s findings will not be disturbed unless

there is no support for the findings in the certified record. Id.

      This Court has explained that the entry of a plea of guilty or nolo

contendere constitutes a waiver of all defects and defenses except lack of

jurisdiction,   invalidity   of   the    plea,      and   illegality   of   the   sentence.

Commonwealth v. Murray, 836 A.2d 956, 962-63 (Pa.Super. 2003).

Before a withdrawal of a plea will be permitted after sentencing, the

appellant must show prejudice in the nature of manifest injustice, i.e., that

the   appellant    entered    into      the    plea   involuntarily,    unknowingly,     or

unintelligently.    Commonwealth v. Pollard, 832 A.2d 517 (Pa.Super.

2003).   In order to ensure a voluntary, knowing, and intelligent plea, our

Supreme Court has required the trial court to ask the following questions, at

a minimum:

      1) Does the defendant understand the nature of the charges to
      which he or she is pleading guilty or nolo contendere?

      2) Is there a factual basis for the plea?

      3) Does the defendant understand that he or she has the right to
      a trial by jury?

      4) Does the defendant understand that he or she is presumed
      innocent until found guilty?

      5) Is the defendant aware of the permissible ranges of sentences
      and/or fines for the offenses charged?

      6) Is the defendant aware that the judge is not bound by the
      terms of any plea agreement tendered unless the judge accepts
      such agreement?

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Id. at 522-523. See Pa.R.Crim.P. 590. This Court examines the nature of

the averments at the time of the colloquy and compares them to the claims

raised on appeal. Id. at 524.

      Here, Appellant is not arguing that any of the elements set forth in

Pollard and Rule 590 were lacking. Instead, Appellant simply argues that

his plea counsel, Attorney Phillips, rendered ineffective assistance in (1)

ignoring his request to file a direct appeal or, in the alternative, neglecting

her duty to consult with him regarding his post-sentence options; and (2)

misrepresenting the existence of a plea agreement for two to four years

incarceration. For the following reasons, no relief is due.

      In Commonwealth v. Lantzy, 736 A.2d 564 (1999), our Supreme

Court held that an unjustified failure to file a direct appeal upon request is

prejudice per se, and if the remaining requirements of the PCRA are

satisfied, a defendant does not have to demonstrate his innocence or the

merits of the issue he would have pursued on appeal to be entitled to relief.

Id. Under those facts, “no discussion of the potential merit of any claims is

necessary.”    See Commonwealth v. Markowitz, 32 A.3d 706, 715

(Pa.Super. 2011).     However, such relief is appropriate only where the

petitioner pleads and proves that a timely appeal was in fact requested and

that counsel ignored that request. Commonwealth v. Harmon, 738 A.2d

1023, 1024 (Pa.Super. 1999).      A mere allegation will not suffice to prove



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that counsel ignored a petitioner’s request to file an appeal.         Id.   Herein,

Appellant failed to proffer a scintilla of evidence to support his allegation.

      In rejecting Appellant’s claim, the PCRA court made a credibility

determination    against   Appellant    and     in   favor   of   Attorney   Phillips.

Specifically, the PCRA court found that Appellant did not prove that he

directed Attorney Phillips to file a direct appeal.      In fact, during the PCRA

hearing, Appellant conceded that he neglected to request a post-sentence

motion or a direct appeal, and he seemed genuinely puzzled by the notion

that he would have to ask. He questioned, “Do I have to [request a direct

appeal] or is that something that [she] is supposed to do?               N.T. PCRA

Hearing, 10/3/16, at 13. Moreover, the court believed counsel’s testimony

that, had Appellant requested an appeal, she would have filed it. See PCRA

Court Opinion, 6/28/17, at 6-7.

      Furthermore, the PCRA expressly rejected Appellant’s contention that

he mailed Attorney Phillips a letter on May 9, 2014 inquiring about the status

of his professed request to withdraw the guilty plea. The court reasoned,

      Counsel testified that a search of all of the files involving
      [Appellant] did not disclose that such a letter was received. In
      addition, it is incredible that [Appellant] sent a letter just three
      days after the sentencing stating[,] "I also asked you to
      withdraw my guilty plea, why didn't any of that happen?" As the
      time for filing a motion to withdraw the guilty plea had not
      expired on May 9th, [Appellant] could not have known on May
      9th that such a motion had not or would not be filed. There is no
      credible evidence that [Appellant] requested counsel to file an
      appeal and, therefore, counsel was not ineffective for failing to
      file a requested appeal.

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Id. at 7.

      As the record supports the PCRA court’s findings and credibility

determinations, we will not disturb its conclusion that Appellant did not

request either a post-sentence motion or a direct appeal. See Markowitz,

supra (affirming PCRA court’s credibility determination that petitioner did

not request direct appeal); Commonwealth v. Abu-Jamal, 720 A.2d 79,

93 (Pa. 1998) (if PCRA court’s credibility determination is supported by

record, it is binding on appellate court).

      Having concluded that Appellant’s claim under Lantzy is meritless, we

next address whether he was prejudiced by Attorney Phillips’s alleged failure

to consult with him regarding a potential direct appeal to challenge the guilty

plea. In Commonwealth v. Touw, 781 A.2d 1250 (Pa.Super. 2001), this

Court held that counsel had a duty to consult with the defendant as to

whether he wanted to file a direct appeal if there was reason to think that a

rational defendant would want to file one. However, to prevail on this claim,

Appellant must show that he was prejudiced by his counsel’s failure to

consult.    Id. at 1254.   “[A] defendant must demonstrate that there is a

reasonable probability that, but for counsel’s deficient failure to consult with

him about an appeal, he would have timely appealed.” Id.

      This claim is also meritless.           First, the certified record belies

Appellant’s insinuation that he was not advised of his appellate rights.



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Attorney Phillips clearly informed Appellant of his post-sentence and

appellate rights during the plea proceeding. See N.T. Sentencing, 5/6/14,

at 17.   We further note that the certified record includes a fully executed

written guilty plea colloquy which outlined Appellant’s appeal rights in

relation to the guilty plea.   Hence, the record contradicts Appellant’s self-

serving assertion that he was ignorant of his post-sentence and appellate

rights. Written Plea Colloquy, 2/12/14, at 6-8.

      More importantly, having considered the evidence presented during

the evidentiary hearing, the PCRA court made a credibility determination

against Appellant and in favor of Attorney Phillips regarding whether there

was reason for Attorney Phillips to think that Appellant would want to file

post-sentence submissions challenging the guilty plea or the attendant

judgment of sentence. The court recalled,

            In this case, counsel credibly testified that she discussed
      his appellate rights with [Appellant] and he did not express any
      concerns with the sentence imposed. The sentence imposed was
      the exact sentence that Judge Machen informed [Appellant]
      would be imposed if the sentencing proceeded and which
      [Appellant] said he was "fine with." Clearly, based on the record,
      [Appellant] weighed the option of proceeding with the sentencing
      after being advised of the sentence that would be imposed based
      on the available information versus waiting for the pre-sentence
      report which might disclose information that could result in a
      longer sentence. As Judge Machen stated, “. . . you know your
      history far better than I do.” [Appellant] knowingly, intelligently
      and with a full understanding of the proceedings elected to
      proceed. In addition, the sentence was below the standard
      range and represented a significant deviation from the possible
      sentences that could be imposed. Therefore, there is no evidence



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      to support the claim that counsel was ineffective in failing to
      consult with [Appellant] about a possible appeal.

PCRA Court Opinion, 6/28/17, at 7-8 (internal citation omitted).        As the

record supports the trial court’s credibility determination, we do not disturb

it. Plainly, Appellant did not demonstrate any dissatisfaction with or

confusion about the sentence that Judge Machen advised him that he would

receive under the open plea agreement.       As the case does not reveal any

issues that trigger Attorney Phillip’s duty to consult with Appellant, the PCRA

court did not err in rejecting Appellant’s claim under Touw, supra.

      In his final claim, Appellant argues that Attorney Phillips mislead him

to believe that he was going to receive a two-to-four-year term of

imprisonment under the guilty plea rather than the five to ten years that

was actually imposed.    This claim is specious in light of Judge Machen’s

discussions with Appellant prior to sentencing. As the PCRA court accurately

observed, “there is no credible evidence to support such a claim. The record

could not be more explicit in establishing that [Appellant] was fully aware of

the sentence that was going to be imposed            and he knowingly and

voluntarily elected to proceed.” PCRA Court Opinion, 6/28/17, at 8. As we

discussed supra, the trial court fashioned the precise sentence that it

informed Appellant that it would impose if he elected to forego the PSI.

Tellingly, when advised of the court’s intention, Appellant responded “I am

fine with what you done, Your Honor.” N.T., 5/6/14, at 14.        Immediately



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thereafter, Judge Machen placed on the record his reason for the downward

deviation from the standard guideline range penalty of ten to twenty years

and imposed the five-to-ten-year term that had been the subject to the

lengthy discussions. Id. In light of the foregoing facts, the certified record

refutes Appellant’s claim that the plea agreement encompassed a two-to-

four-year term of imprisonment.

      For all of the preceding reasons, we find no meritorious issues that

have been preserved for our review. Hence, we agree with counsel that the

petition is meritless.

      Petition of Charles R. Pass III, Esquire, to withdraw granted.    Order

affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/17/2017




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