J-S45005-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

MICHAEL ANDREW CLOUSE,

                            Appellant                 No. 2619 EDA 2012


                 Appeal from the PCRA Order August 21, 2012
                In the Court of Common Pleas of Lehigh County
              Criminal Division at No(s): CP-39-CR-0002079-2010


BEFORE: BOWES, WECHT, and FITZGERALD,* JJ.

MEMORANDUM BY BOWES, J.:                            FILED AUGUST 13, 2014

       Michael Andrew Clouse appeals from the August 21, 2012 order

denying him PCRA relief. We affirm.

       Appellant was charged with various offenses in connection with a

traffic accident that occurred at around 7:00 p.m. on February 18, 2010.




intersection of Lil Wolf Circle and Lil Wolf Drive, North Whitehall Township.



boyfriend, Anthony Earl, lived close to the accident site, heard Ms. Buskirk

screaming, and arrived at the scene of the accident before police.        He
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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followed the wet tire tracks left by the red pickup truck to 4202 Silver Fox

Court, where it was parked. Ms. Buskirk gave police a partial license plate

number and stated that the operator was a white male in his late 30s with

dark unkempt hair.     Police then met with Mr. Earl, who directed them to

4202 Silver Fox Court and the truck parked in its driveway.

       At approximately 7:45 p.m., police interviewed the resident of 4201

Silver Fox Court, Christopher Walz, who said that Michael Clouse lived at

4202 Silver Fox Court and used the red pickup truck parked there. Police

approached 4202 Silver Fox Court and observed Appellant sleeping on the



photograph, and she identified him as the driver of the vehicle that struck

her.

       Police returned to 4202 Silver Fox Court at 8:20 p.m. and roused

Appellant, who appeared intoxicated.     Appellant failed field sobriety tests,

was arrested and transported to the hospital where his blood was drawn.

His blood alcohol content was .34%.         At t

privileges were suspended    DUI related.

       On April 25, 2011, Appellant pled guilty to driving under the influence,

highest rate of alcohol, as a third offense. He was sentenced to one to five

years imprisonment. That sentence was imposed concurrently to a sentence

resulting from the revocation of an earlier probationary term. Specifically,

Appellant pled guilty to simple assault at Lehigh County criminal action


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number 267-2010, and received six months probation on April 6, 2010.

Thus, when he was convicted herein, that offense resulted in a violation of

probation in the simple assault case.          Appellant admitted to the violation,

and he was sentenced to three to twelve months therein.1

       On April 17, 2012, Appellant filed a timely PCRA petition in which he

sought to withdraw his April 25, 2011 guilty plea to DUI entered in the



relief from his plea because: 1) the trial court lacked jurisdiction over his

criminal convictions committed in Lehigh County; 2) he was not informed of

his status as a citizen; 3) he was not charged by a grand jury; and 4) there

were unspecified due process violations during the proceedings.            Counsel

was appointed and filed an amended petition. That petition raised a single



counsel because counsel told him that if he was convicted at a jury trial, he

would receive a sentence of two and one-half to five years in jail, and

because counsel was not prepared to go to trial.

       The matter proceeded to a hearing on August 21, 2012.               At that

hearing, Appellant stated that he wanted to withdraw the PCRA petition.

That desire was premised upon the following.             Appellant was due to be

paroled to a halfway house but had to be physically present in the state

____________________________________________


1
    The present appeal involves only the DUI case.



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prison in order to be released. Since he was located in the county facility to

appear at the PCRA hearing, Appellant wanted to be immediately transferred

so that he would be eligible for release.

      After some discussion over whether it would be physically feasible to

transfer Appellant in time for his release date, which appeared doubtful from

the record of the PCRA proceeding, the court indicated that it would attempt

to ensure that Appellant would be transported. The PCRA court then granted



8/21/13, at 13-14. Appellant filed a pro se appeal from the August 21, 2013

order granting his petition to withdraw the PCRA petition.

      We thereafter ordered a hearing pursuant to Commonwealth v.

Grazier, 713 A.2d 81 (Pa. 1998). Appellant then elected to proceed with

private counsel, who filed a petition for transcription of the pertinent

hearings and a motion for remand of the record.        That relief was granted

without formal disposition of the two motions. Counsel then filed with this

Court a petition to withdraw and no-merit brief pursuant to Commonwealth

v. Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550

A.2d 213 (Pa.Super. 1988) (en banc).         In the no-merit letter, counsel

concluded that any issues raised in the timely PCRA petition were waived

when Appellant requested and was granted the right to withdraw it. Counsel

also opined that, even if not waived, the issues did not warrant relief.




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      Initially,   we   examine   whether   counsel   satisfied   the   procedural

requirements for withdrawal.       Commonwealth v. Doty, 48 A.3d 451

(Pa.Super. 2012):

             Counsel petitioning to withdraw from PCRA representation
      must proceed under Turner, supra and Finley, supra and
      must review the case zealously. Turner/Finley counsel must
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      appeal to this Court, detailing the nature and extent of counsel's
      diligent review of the case, listing the issues which petitioner
      wants to have reviewed, explaining why and how those issues
      lack merit, and requesting permission to withdraw.

             Counsel must also send to the petitioner: (1) a copy of the

      withdraw; and (3) a statement advising petitioner of the right to
      proceed pro se or by new counsel.

             Where counsel submits a petition and no-merit letter that
      satisfy the technical demands of Turner/Finley, the court trial
      court or this Court must then conduct its own review of the
      merits of the case. If the court agrees with counsel that the
      claims are without merit, the court will permit counsel to
      withdraw and deny relief.

Id. at 454 (citation omitted).

      Herein, counsel indicates in his petition to withdraw that he reviewed



sentencing, and PCRA hearings.       He represents that the appeal from the

dismissal of the PCRA petition is without merit.        In the no-merit letter,

counsel details that any contention in the PCRA petition was waived when

Appellant asked to withdraw that petition.     Counsel further indicates that,

even if not waived, based upon his review of the guilty plea transcript,

written colloquy, and sentencing transcript, he believes that the issues

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presented in the PCRA petition lacked merit. The no-merit letter delineates

the legal basis for these opinions. Counsel advised Appellant by letter of his

assessment of the appeal, that he petitioned this Court to withdraw as

counsel, and that Appellant had the right to proceed pro se or with privately-

retained counsel.

      Thus,   counsel   has   satisfied   the   procedural   requirements   for

withdrawal. We now examine the merits. We first confront the question of

whether there are any issues preserved for appeal.            While Appellant

specifically asked to withdraw his PCRA petition at a hearing, we do not view

that action, in the context of the present circumstances, as constituting



transported to state prison in time for his release date to the halfway house.

Given that Appellant subsequently filed an appeal from the grant of his

motion to withdraw the PCRA petition, we could assume that he was not

released on parole into a halfway house. The PCRA transcript supports that

Appellant was unlikely to be timely transferred to state prison.

      Additionally, it was unnecessary to withdraw the petition in the first

instance.   If Appellant needed a transfer to state prison, that action could

have occurred without withdrawal of the petition.      The appropriate action

would have been for counsel to ask that the hearing be postponed rather

than to totally abandon the request for PCRA relief.




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      The withdrawal of a PCRA petition will operate as a waiver of all issues

so long as that withdrawal is knowing and voluntary. See Commonwealth

Williams, 828 A.2d 981, 987-88 (Pa. 2003); Commonwealth v. Shaffer,



leave to amend or withdraw a petition for post-conviction collateral relief at



not informed of the consequences of withdrawal         that he would not be

eligible to receive review of his contentions if he failed to be paroled. In the

absence of an informed waiver, we cannot rule that the present withdrawal

constitutes waiver. We therefore proceed to analyze the claims raised.



an order denying post-conviction relief is limited to whether the trial court's

determination is supported by evidence of record and whether it is free of

              Commonwealth v. Ali, 86 A.3d 173, 177 (Pa. 2014).             The

                                                  rs a guilty plea, he or she

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

             Commonwealth v. Stadley, 50 A.3d 769, 771 (Pa.Super.

2012).

      In the pro se petition, Appellant raised two jurisdictional challenges

pertaining to the voluntariness of his plea. Counsel herein correctly outlines

the issues raised in the pro se PCRA petition and establishes their frivolity.


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First, Appellant maintained that the trial court lacked subject matter



court to hear and adjudicate the type of controversy presented. Jurisdiction

is purely a question of law; the appellate standard of review is de novo and

                                  Commonwealth v. Seiders, 11 A.3d 495,

496-97 (Pa.Super. 2010).          The court of common pleas within this

Commonwealth possesses subject matter jurisdiction to resolve cases arising

under the Pennsylvania Crimes Code if that jurisdiction, except in limited

situations, is exercised within the territorial boundaries of the judicial district

in which the court sits. Commonwealth v. Bethea, 828 A.2d 1066, 1075



Lehigh County, and the court of common pleas of Lehigh County had

jurisdiction over the matter. This position is therefore without merit.

      Appellant also raised the issue of a lack of a grand jury indictment.

Pursuant to a 1976 amendment, the Pennsylvania Constitution now permits

criminal prosecution of an individual through an information rather than an

indicting grand jury in any county given approval to proceed by information

rather than grand jury. Commonwealth v. Webster, 337 A.2d 914 (Pa.



which have obtained the approval of the Supreme Court to provide for the

initiation of criminal proceedings by informations instead of by grand jury

indictments, shall possess and exercise the same power and jurisdiction as


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they heretofore possessed in cases of prosecutions upon indi

Lehigh County is permitted to proceed by information, it had jurisdiction

herein even though Appellant was not indicted by a grand jury.

     Appellant also averred that his plea was unknowing and involuntary

since he was not aware of the nature of the proceedings and charges and

since he was not informed of his citizen status.        Pa.R.Crim.P. 590(A)

requires a guilty plea to be accepted in open court. A judge is not permitted

to accept the guilty plea until he determines that the plea is voluntarily and

understandingly tendered and that assessment must appear on the record.

Pa.R.Crim.P. 590(A)(3). The comment to Pa.R.Crim.P. 590 indicates that it

codified prior law containing these mandates, and further indicates:

           At a minimum the judge should ask questions to elicit the
     following information:

          (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 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 range 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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              (7)   Does    the   defendant     understand    that the
      Commonwealth has a right to have a jury decide the degree of
      guilt if the defendant pleads guilty to murder generally?

      In this case, the court set forth that Appellant was pleading guilty, the

factual basis for the guilty plea, and the offense to which Appellant pled

guilty.   N.T. Guilty Plea and Sentence, 4/25/11, at 1, 4.            Appellant

represented that he read and understood his written guilty plea colloquy

wherein he admitted that the elements of driving under the influence of

alcohol were explained to him. Thus, his position that he was not aware of

the nature of the proceedings and charges is refuted by the record.

      As outlined above, a defendant does not have to be informed of his

citizen status in order to enter a knowing and voluntary guilty plea.

                                                mplicate the fact that entry of

a guilty plea to certain offenses can result in deportation.      Hence, if a

resident alien pleads guilty, he must be informed about the consequences of

the plea on his ability to remain in the United States. Padilla v. Kentucky,

559 U.S. 356 (2010).     However, Appellant is an American citizen.      Thus,



guilty plea because he cannot be deported.

      We have reviewed the unspecified due process allegations raised in the

pro se petition and find that PCRA counsel correctly concluded that they

lacked merit. Appellant had the assistance of counsel, and, after a complete

colloquy, admitted that he committed the offense in question.


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      As required by the above-cited case law, we now must conduct our

own review of the merits of the case. We have discovered one other issue

presented to the PCRA court. That issue was raised in the amended PCRA

petition by appointed counsel.    The allegation therein was that Appel

guilty plea was unlawfully induced because plea counsel was unprepared for

trial and forced Appellant to plead guilty by threatening Appellant that he

would receive a higher sentence if he proceeded to trial.

             To prevail on a claim alleging counsel's ineffectiveness
      under the PCRA, Appellant must demonstrate (1) that the
      underlying claim is of arguable merit; (2) that counsel's course
      of conduct was without a reasonable basis designed to effectuate
      his client's interest; and (3) that he was prejudiced by counsel's
      ineffectiveness, i.e. there is a reasonable probability that but for
      the act or omission in question the outcome of the proceedings
      would have been different.

            It is clear that a criminal defendant's right to effective
      counsel extends to the plea process, as well as during trial.
      However, 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. 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. Timchak, 69 A.3d 765, 769-70 (Pa.Super. 2013)

(quoting Commonwealth v. Wah, 42 A.3d 335, 338 (Pa.Super. 2012)).



affirmatively stated at the colloquy that it was his choice to plead guilty and

that no one forced or threatened him into entering the plea.        N.T. Guilty

Plea, 4/25/11, at 3. Appellant also indicated that he was satisfied with his

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                           Id. at 3-




colloquy. Commonwealth v. Willis, 68 A.3d 997, 1009 (Pa.Super. 2013).

In this case, Appellant stated at the plea colloquy that his plea was not

coerced and that he was satisfied with his attorney.   He thus cannot now

withdraw his guilty plea based upon contrary assertions. We thus concur,

after an independent review of the record, that there are no issues of merit

and that counsel may withdraw.




Application for Remand of the Record dated December 12, 2012 is dismissed

as moot.   The application of Charles A. Banta, Esquire, to withdraw as

counsel is granted. Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/13/2014




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