J-S36013-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                            Appellee

                       v.

CHRISTOPHER ROBIN MCCAWLEY

                            Appellant                    No. 891 MDA 2015


             Appeal from the Judgment of Sentence April 15, 2015
               In the Court of Common Pleas of Lancaster County
              Criminal Division at No(s): CP-36-CR-0005264-2013


BEFORE: MUNDY, J., DUBOW, J., and STEVENS, P.J.E.*

MEMORANDUM BY MUNDY, J.:                                  FILED JULY 08, 2016

        Appellant, Christopher Robin McCawley, appeals from the April 15,

2015 judgment of sentence of 90 days to 23 months’ incarceration followed

by three years’ probation, imposed after he entered a negotiated guilty plea

to two counts of driving under the influence of alcohol. 1          After careful

consideration, we affirm on the basis of the trial court’s September 23, 2015

opinion.

        The trial court fully and aptly summarized the factual and procedural

history of this case, and we need not reiterate that summary here. See Trial

Court Opinion, 9/23/15, at 1-7.          Pertinent to this appeal, we recount the

____________________________________________
*
    Former Justice specially assigned to the Superior Court.
1
    75 Pa.C.S.A. §§ 3802(a)(1), and 3802(c), respectively.
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following procedural posture of this case. After entering the aforementioned

negotiated guilty plea and receiving a sentence of 90 days to 23 months’

incarceration, Appellant retained new counsel and on April 27, 2015, filed a

timely2 post-sentence motion to withdraw his guilty plea, alleging the

ineffectiveness of his plea counsel led to an unknowing and involuntary plea.

The trial court denied the motion on April 28, 2015. Appellant filed a timely

notice of appeal on May 26, 2015. In consideration of a joint motion from

Appellant and the Commonwealth filed on June 4, 2015, this Court retained

jurisdiction but remanded the matter to the trial court to “hold an

evidentiary hearing to address its denial of Appellant’s post-sentence motion

to withdraw guilty plea.” Per Curiam Order, 7/10/15, at 1.

       On remand, the trial court held an evidentiary hearing on September

3, 2015. At the outset of the hearing, Appellant executed an on-the-record

waiver of his right to pursue a claim under the Post Conviction Relief Act

(PCRA), §§ 9541-9546, in order to pursue his ineffectiveness of counsel

claim before the trial court.        Following the hearing, the trial court again

denied Appellant’s motion. Appellant resumed this appeal.3

____________________________________________
2
  April 25, 2015, the 10th day following the date of sentencing, was a
Saturday. When computing a filing period, “[if] the last day of any such
period shall fall on Saturday or Sunday … such day shall be omitted from the
computation.” 1 Pa.C.S.A. § 1908. Therefore, Appellant’s filing of his post-
sentence motion on Monday, April 27, 2015 was timely.
3
  Appellant and the trial court have complied with Pennsylvania Rule of
Appellate Procedure 1925.


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        On appeal, Appellant raises the following issues for our review.

              1.    [] Given [the alleged] error, [and] exceptional
              circumstances, should this Court allow an ineffective
              assistance claim on direct review?

              2.    [] [Where Appellant] entered his plea
              unintelligently,  unknowingly,    and    involuntarily
              because of ineffective assistance of counsel[, did he]
              suffer[] manifest injustice, [and] should he be
              permitted to withdraw his plea?

Appellant’s Brief at 4.4

        Appellant first urges this Court to permit adjudication of his ineffective

assistance of counsel claim on direct appeal. Id. at 12. In Commonwealth

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

ineffective assistance of counsel should be deferred to post-conviction

collateral    proceedings.         This   holding   was   recently   confirmed   in

Commonwealth v. Holmes, 79 A.3d 562, 576 (Pa. 2013) (holding, “claims

of ineffective assistance of counsel are to be deferred to PCRA review; trial

courts should not entertain claims of ineffectiveness upon post-verdict

motions; and such claims should not be reviewed upon direct appeal”).

However, the Holmes Court described two limited exceptions to the general

rule where there are “extraordinary circumstances.” Id. at 577. This may

occur “where the trial court, in the exercise of its discretion, determines that

a claim (or claims) of ineffective assistance is both meritorious and apparent

from the record so that immediate consideration and relief is warranted.”
____________________________________________
4
    The Commonwealth elected not to file a brief in this appeal.


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Id. at 577–578. Alternatively, it may occur for “good cause,” such as the

shortness     of   a   sentence,    or   “multiple,   and   indeed   comprehensive,

ineffectiveness claims if such review is accomplished by a waiver of PCRA

rights.”    Id.    “Ultimately, we trust in the discretion of the trial courts to

determine which cases present appropriate circumstances to warrant post-

verdict unitary review of prolix claims, contingent upon a waiver of PCRA

review.” Id. at 580.

       Instantly, upon remand, the trial court noted the shortness of

Appellant’s sentence.5         The trial court conducted full written and oral

colloquies in which Appellant waived his right to file a subsequent PCRA

petition.    See N.T., 9/3/15, at 9-10, ct. ex. 1.            The trial court then

conducted a full hearing, allowing Appellant to develop a full record

pertaining to his claim. Under these circumstances, and given our remand in

response to the joint motion of the parties, we deem the present case

qualifies as an exception to Grant recognized in Holmes.              See Holmes,

supra.      Accordingly, we proceed to consider the merits of Appellant’s

appeal.

       Appellant’s sole issue is whether the trial court erred in refusing his

post sentence motion to withdraw his guilty plea, based on his assertion that




____________________________________________
5
 The trial court extended Appellant’s bail pending this appeal. Trial Court
Order, 5/4/15, at 1.


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ineffectiveness of plea counsel resulted in an unknowing, unintelligent, and

involuntary plea. Our consideration of this issue is guided by the following.

      “A trial court’s decision regarding whether to permit a guilty plea to be

withdrawn   should    not   be   upset   absent   an   abuse    of     discretion.”

Commonwealth v. Pardo, 35 A.3d 1222, 1227 (Pa. Super. 2011) (citation

omitted), appeal denied, 50 A.3d 125 (Pa. 2012).

            [A]fter the court has imposed a sentence, a
            defendant can withdraw his guilty plea only where
            necessary to correct a manifest injustice. [P]ost-
            sentence motions for withdrawal are subject to
            higher scrutiny since courts strive to discourage the
            entry of guilty pleas as sentencing-testing devices.
            … To be valid, a guilty plea must be knowingly,
            voluntarily and intelligently entered. [A] manifest
            injustice occurs when a plea is not tendered
            knowingly,      intelligently,    voluntarily,   and
            understandingly.

Commonwealth v. Prendes, 97 A.3d 337, 352 (Pa. Super. 2014) (internal

quotation marks and citations omitted), appeal denied, 105 A.3d 736 (Pa.

2014). “In determining whether a plea is valid, the court must examine the

totality of circumstances surrounding the plea.” Commonwealth v. Kelly,

5 A.3d 370, 377 (Pa. Super. 2010) (citations omitted), appeal denied, 32

A.3d 1276 (Pa. 2011).

            To be entitled to relief on an ineffectiveness claim, [a
            claimant] must prove the underlying claim is of
            arguable merit, counsel’s performance lacked a
            reasonable basis, and counsel’s ineffectiveness
            caused him prejudice. Commonwealth v. Pierce,
            567 Pa. 186, 786 A.2d 203, 213 (2001); see also
            Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d
            973 (1987). Prejudice in the context of ineffective

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            assistance of counsel means demonstrating there is
            a reasonable probability that, but for counsel’s error,
            the outcome of the proceeding would have been
            different. This standard is the same in the PCRA
            context as when ineffectiveness claims are raised on
            direct review. Failure to establish any prong of the
            test will defeat an ineffectiveness claim.

Commonwealth v. Solano, 129 A.3d 1156, 1162-1163 (Pa. 2015), quoting

Commonwealth v. Keaton, 45 A.3d 1050, 1060-1061 (Pa. 2012) (some

citations and footnote omitted). “Trial counsel is presumed to be effective,

and a PCRA petitioner bears the burden of pleading and proving each of the

three factors by a preponderance of the evidence.”        Commonwealth v.

Perry, 128 A.3d 1285, 1289 (Pa. Super. 2015) (citation omitted). “When

evaluating ineffectiveness claims, judicial scrutiny of counsel’s performance

must be highly deferential.    Counsel will not be deemed ineffective where

the strategy employed had some reasonable basis designed to effectuate his

or her client’s interests.” Id. at 1290.

            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. Kelley, --- A.3d ---, 2016 WL 1072107, at *3 (Pa.

Super. 2016) (internal quotation marks and citations omitted).

            The standard for post-sentence withdrawal of guilty
            pleas dovetails with the arguable merit/prejudice
            requirements for relief based on a claim of ineffective

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            assistance of plea counsel, … under which the
            defendant must show that counsel’s deficient
            stewardship resulted in a manifest injustice, for
            example, by facilitating entry of an unknowing,
            involuntary, or unintelligent plea. This standard is
            equivalent to the “manifest injustice” standard
            applicable to all post-sentence motions to withdraw a
            guilty plea.

Id. at *4, quoting Commonwealth v. Morrison, 878 A.2d 102, 105 (Pa.

Super. 2005) (en banc), appeal denied, 887 A.2d 1241 (Pa. 2005) (internal

citations omitted).

      Appellant’s specific claim is that plea counsel “did not perform an

adequate investigation, under the rules of professional conduct or the

Constitution” of the forensic procedures and results of Appellant’s blood

alcohol content (BAC) testing.   Appellant’s Brief at 22.   Appellant asserts

there is no reasonable basis for plea counsel to have failed to make a more

thorough investigation.   Id. at 26.   Additionally, Appellant claims he was

prejudiced because “it was impossible for [Appellant] to enter a knowing,

voluntary, and intelligent plea where his counsel failed to conduct a prompt

and thorough investigation.” Id. at 30. Thus, Appellant contends it is not

his burden, in showing prejudice, to demonstrate that the BAC results are

unreliable or that the results of the investigation would have changed plea

counsel’s recommendation or Appellant’s decision to enter a guilty plea. Id.

      After careful review, we conclude that the trial court’s September 23,

2015 Rule 1925(a) memorandum opinion fully sets forth Appellant’s claims,

identifies the proper standards of review, discusses the relevant law, and

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explains the bases for its conclusion that Appellant has failed to establish

manifest injustice on the basis of ineffective assistance of counsel to permit

post-sentence withdrawal of his guilty plea. We have carefully reviewed the

entire record and Appellant’s arguments, and we conclude that the thorough

and well-reasoned opinion of Judge David L. Ashworth is in concert with our

own views.

      Specifically, we agree that the record supports the trial court’s finding

that plea counsel did investigate the “‘package of materials’ [Appellant]

contends are essential to defeat a claim of ineffectiveness.”      Trial Court

Opinion, 9/23/15, at 14.    Although Appellant claims the testimony of his

initial direct appeal counsel contradicted that finding, we note “[i]n terms of

the salient facts, we defer to factual findings and credibility determinations

made by courts of original jurisdiction, so long as they are supported by the

record.” Commonwealth v. Hanson, 82 A.3d 1023, 1035 (Pa. 2013). We

also agree Appellant failed to demonstrate prejudice because he did not

demonstrate what further investigation would have revealed and how it

would have altered his decision to plea. See Trial Court Opinion, 9/23/15,

at 11; see also Commonwealth v. Timchak, 69 A.3d 765, 773-774 (Pa.

Super. 2013) (holding, bald suggestions plea counsel failed to investigate or

advise of potential defenses are insufficient to show prejudice where

appellant failed to allege any beneficial information that would have been

discovered).


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     Accordingly, we adopt the September 23, 2015 opinion of the

Honorable David L. Ashworth as our own for the purposes of our disposition

of this appeal. We conclude the trial court committed no abuse of discretion

in denying Appellant’s post-sentence motion to withdraw his guilty plea. We

therefore affirm Appellant’s April 15, 2015 judgment of sentence.

     Judgment of sentence affirmed.

     Judge Dubow joins the memorandum.

     President Judge Emeritus Stevens concurs in the result.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/8/2016




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