J-S60045-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                    :   IN THE SUPERIOR COURT OF
                                                    :        PENNSYLVANIA
                                                    :
                v.                                  :
                                                    :
                                                    :
    GEORGE MELETICHE                                :
                                                    :
                       Appellant                    :   No. 1049 MDA 2019

               Appeal from the PCRA Order Entered June 11, 2019
       In the Court of Common Pleas of Berks County Criminal Division at
                        No(s): CP-06-CR-0004403-2015

BEFORE: SHOGAN, J., STABILE, J., and PELLEGRINI, J.*

MEMORANDUM BY PELLEGRINI, J.:                            FILED NOVEMBER 26, 2019

        George Meletiche (Meletiche) appeals pro se from the order entered in

the Court of Common Pleas of Berks County (PCRA court) dismissing his

petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§

9541-9546, without a hearing. We affirm.

                                               I.

        In 2015, Meletiche was charged with over 100 counts of various offenses

for his involvement in a multi-county drug trafficking conspiracy. Along with

multiple co-defendants, he proceeded to an October 2017 jury trial that ended

in a mistrial due to the Commonwealth failing to give notice of changes it

made to a PowerPoint presentation it had used throughout the trial. Meletiche




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*   Retired Senior Judge assigned to the Superior Court.
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filed a motion to dismiss and bar retrial based on the mistrial, but the trial

court dismissed it for failing to state specific facts alleging misconduct.

       Rather than proceed to a retrial, on February 1, 2018, Meletiche entered

into a negotiated plea agreement with the Commonwealth that dealt with six

counts of the 108 in the original information. The counts that he pled guilty

were to Corrupt Organizations, Persons Not to Possess Firearms, Possession

with Intent to Deliver (PWID) (three counts), and Conspiracy.1 Based on the

agreement, Meletiche was sentenced to five to ten years’ imprisonment

concurrently on each count. After sentencing, Meletiche did not file any post-

sentence motions or a direct appeal.

       On October 23, 2018, Meletiche filed a pro se PCRA petition and was

appointed counsel who later filed a motion to withdraw with a Turner/Finley

no merit letter.2 The PCRA court granted the motion to withdraw and issued

notice of its intent to dismiss the PCRA petition without a hearing under

Pa.R.Crim.P. 907(a)(1).        After Meletiche filed a response, the PCRA court

entered its order dismissing the petition. Meletiche timely appealed and listed

one issue in his Pa.R.A.P. 1925(b) statement that trial counsel was ineffective

for coercing him into accepting the guilty plea.



____________________________________________


118 Pa.C.S. § 911(b)(1), 18 Pa.C.S. § 6501(a)(1), 35 P.S. § 780-113(a)(30),
and 18 Pa.C.S. § 903(a). All remaining counts were dismissed.

2 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).

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                                       II.

      On appeal, Meletiche contends that he is entitled to withdraw his guilty

plea based on his claim of ineffective assistance of counsel as well as his actual

innocence.   He also contends that the PCRA court erred in dismissing his

motion to dismiss based on double jeopardy because there was clear evidence

that the Commonwealth’s conduct in introducing evidence that it failed to

present to the defense during discovery was done in a malicious and

intentional manner.

                                       A.

      For his first issue, it is not entirely clear under what grounds Meletiche

is seeking collateral relief. His question presented states that he is entitled to

withdraw his plea based on ineffectiveness of counsel, and he specifically

argues in his brief that his claim is cognizable under 42 Pa.C.S. §

9543(a)(2)(ii). Meletiche’s Brief at 6. Regarding such claims, this Court has

observed, “all constitutionally cognizable ineffectiveness claims are cognizable

under the PCRA without regard to innocence, involving cases involving guilty

pleas.” Commonwealth v. Lynch, 820 A.2d 728, 732 (Pa. Super. 2003).

Despite this, Meletiche also asserts that he is innocent of the charges and that

the PCRA Court erred by not granting an evidentiary hearing to address this

claim.   By so arguing, Meletiche appears to argue that he was unlawfully

induced to plead guilty by his counsel and that he is innocent, which would be

a cognizable claim under 42 Pa.C.S. § 9543(a)(2)(iii). Out of an abundance


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of caution, we will review Meletiche’s first issue under the standards for both

ineffectiveness of counsel under § 9543(a)(2)(ii) and unlawful inducement

under § 9543(a)(2)(iii).

      To the extent Meletiche challenges the effectiveness of his plea counsel,

we review such claims under the following guidelines:

      It is well-established that counsel is presumed effective, and to
      rebut that presumption, the PCRA petitioner must demonstrate
      that counsel’s performance was deficient and that such deficiency
      prejudiced him. To prevail on an ineffectiveness claim, the
      petitioner has the burden to prove that (1) the underlying
      substantive claim has arguable merit; (2) counsel whose
      effectiveness is being challenged did not have a reasonable basis
      for his or her actions or failure to act; and (3) the petitioner
      suffered prejudice as a result of counsel’s deficient performance.
      The failure to satisfy any one of the prongs will cause the entire
      claim to fail.

Commonwealth v. Benner, 147 A.3d 915, 920 (Pa. Super. 2016) (quotation

marks, quotations and citations omitted).

      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.

      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.
      The reasonable probability test is not a stringent one; it merely
      refers to a probability sufficient to undermine confidence in the
      outcome.

Commonwealth v. Barndt, 74 A.3d 185, 192 (Pa. Super. 2013) (citations

and internal quotation marks omitted).

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      In his brief, Meletiche claims he instructed counsel to prepare for retrial

but his counsel threatened to withdraw if he did not accept the plea. According

to Meletiche, if counsel had not threatened to withdraw, then he would have

never pleaded guilty.   See Meletiche’s Brief at 7-8.     However, this is not

grounds for ineffective assistance of counsel.     If the trial court permitted

counsel to withdraw, Meletiche would have been entitled to new counsel,

either privately-retained or court-appointed, to represent him at the eventual

retrial. That his counsel was unwilling to do the retrial does not mean that

Meletiche was coerced into pleading guilty, and Meletiche cites to no case law

to support such a notion.

      Moreover, Meletiche affirmatively stated at the guilty plea hearing that

he was choosing to plead and was satisfied with his attorney’s representation.

See N.T. Guilty Plea and Sentencing, 2/1/18, at 4. A criminal defendant “is

bound by [any] statements” made during a plea colloquy since they were

“made in open court while under oath,” and thus, a defendant cannot assert

“grounds for withdrawing the plea which contradict the statements” made at

the plea colloquy. Commonwealth v. Willis, 68 A.3d 997, 1009 (Pa. Super.

2013). While Meletiche may be displeased with the outcome of his decision

to enter into the plea agreement, he cannot obtain relief by claiming that he

felt coerced by counsel to plead guilty. See Commonwealth v. Brown, 48

A.3d 1275, 1278 (Pa. Super. 2012).          Thus, to the extent he is claiming




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ineffectiveness of counsel in connection with his guilty plea, the PCRA Court

did not abuse its discretion in denying his claim without hearing.

      Likewise, to the extent Meletiche raises a claim of unlawful inducement,

it also fails.   Under the PCRA, the petitioner must plead and prove by a

preponderance of the evidence that his conviction or sentence resulted from

a guilty plea “unlawfully induced where the circumstances make it likely that

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

innocent.” 42 Pa.C.S. § 9543(a)(2)(iii). “A valid plea must be knowingly,

intelligently, and voluntarily entered.” See Commonwealth v. Kelly, 136

A.3d 1007, 1013 (Pa. Super. 2016) (citation omitted).

      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 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.

Id. (citations omitted); see also Pa.R.Crim.P. 590.

      Based on our review, Meletiche’s guilty plea colloquy, both written and

oral, covered all of the requirements for a valid guilty plea as outlined above.

N.T. Guilty Plea and Sentencing, 2/1/18, at 2-6. This included the factual

basis for the charges in which Meletiche admitted to acting as the principal of

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the “Meletiche Guzman drug organization.” Id. at 5. As he concedes in his

brief, Meletiche did not voice any concerns at the hearing that he was being

coerced into pleading guilty or that he was innocent of the charges.

      In addition, Meletiche fails to specify what, if any, unlawful inducement

his counsel made causing him to plead guilty despite his innocence.           As

discussed, Meletiche merely claims that his privately-retained counsel would

have withdrawn if he insisted on going to trial again. Meletiche has not alleged

or identified any deficient performance or incorrect representations that were

made by counsel that caused him to enter an involuntary plea. We also note

that Meletiche’s innocence claim is confined to two sentences in which he

baldly claims that the charges against him were based on “conjecture and

speculation.” Meletiche’s Brief at 7. Besides this claim being contradicted by

his admission to guilt during the colloquy, it is insufficient to support a claim

under 42 Pa.C.S. § 9543(a)(2)(iii). Accordingly, the PCRA Court did not err

in dismissing Meletiche’s claim without hearing.

                                       B.

      Next, Meletiche argues the trial court erred in dismissing his motion to

dismiss following mistrial. However, as the Commonwealth points out in its

brief, Meletiche did not include this issue in his Pa.R.A.P. 1925(b) statement.

The issue is thus waived. See Pa.R.A.P. 1925(b)(4)(vii); Commonwealth v.

Hill, 16 A.3d 484, 494 (Pa. 2011) (“Any issues not raised in a Pa.R.A.P.

1925(b) statement will be deemed waived.”) (quotation omitted).


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      Even if not waived and properly presented in an effectiveness of counsel

claim under 42 Pa.C.S. § 9543(a)(2)(ii), we would find the claim to be

meritless.    While double jeopardy issues usually raise a question of

constitutional law with a de novo standard of review, we apply a more

deferential standard to the trial court’s factual findings to the extent they

impact its double jeopardy ruling:

      Where issues of credibility and weight of the evidence are
      concerned, it is not the function of the appellate court to substitute
      its judgment based on a cold record for that of the trial court. The
      weight to be accorded conflicting evidence is exclusively for the
      fact finder, whose findings will not be disturbed on appeal if they
      are supported by the record.

Commonwealth v. Wood, 803 A.2d 217, 220 (Pa. Super. 2002) (quotation

omitted). In this case, when the trial court determined that a mistrial was

appropriate, it also found that the Commonwealth had not caused it through

misconduct, stating that it was not “ascribing any bad motives to anyone.”

N.T. Jury Trial, Vol. III, at 885. Instead, the trial court determined mistrial

was warranted because it would be too confusing for the jury if it allowed the

Commonwealth to correct its mistake. Meletiche’s argument cites neither case

law nor any record evidence to support his argument that the Commonwealth

intentionally caused the mistrial. As a result, even if this issue were properly

presented and preserved, we would not substitute our judgment for the trial

court’s factual finding.




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     Order affirmed.

     Judge Shogan joins the memorandum

     Judge Stabile concurs in the result.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/26/2019




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