J-S50037-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                         Appellee

                    v.

LEROY CALBERT,

                         Appellant                  No. 395 EDA 2017


           Appeal from the PCRA Order entered January 9, 2017,
            in the Court of Common Pleas of Delaware County,
           Criminal Division, at No(s): CP-23-CR-0002065-2013.


BEFORE: PANELLA, MOULTON, and RANSOM, JJ.

MEMORANDUM BY RANSOM, J.:                        FILED OCTOBER 02, 2017

      Appellant, Leroy Calbert, appeals pro se from the January 9, 2017

order denying his petition filed pursuant to the Post Conviction Relief Act

(PCRA), 42 Pa.C.S. §§ 9541-9546. We vacate and remand with instructions.

      The pertinent facts and procedural history, as gleaned from our review

of the certified record, are as follows.   On November 23, 2013, Appellant

entered a counseled, negotiated guilty plea to various drug charges at two

separate criminal dockets, and he was sentenced that same day to an

aggregate term of ten to twenty years of imprisonment. On December 5,

2013, Appellant pro se filed a notice of appeal, along with a pro se request

for leave to withdraw his guilty plea, as well as a motion to withdraw his

guilty plea. The trial court appointed counsel to represent Appellant but did

not address the withdrawal motion given Appellant’s filing of an appeal.
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       On appeal, Appellant claimed that his plea was unknowing because he

did    not   know the sentences at each          docket   were to   be   imposed

consecutively.      In an unpublished memorandum filed on November 25,

2014, we found this claim waived for failure to preserve the challenge to the

guilty plea “prior to sentencing, at sentencing, or in a timely post-sentence

motion.” Commonwealth v. Calbert, 113 A.3d 358, *8 (Pa. Super. 2014),

appeal denied, 117 A.3d 295 (Pa. 2015).              Thus, this Court affirmed

Appellant’s judgment of sentence.1

       On February 3, 2016, Appellant timely and pro se filed a PCRA

petition.    The PCRA court appointed counsel, who was later permitted to

withdraw, and the court appointed new counsel. Thereafter, Appellant filed

a motion to proceed pro se. Following a Grazier2 hearing, that PCRA court

granted Appellant’s request.            The Commonwealth filed an answer to

Appellant’s pro se petition.       On October 19, 2016, the PCRA court issued

Pa.R.Crim.P. 907 notice of intent to dismiss Appellant’s PCRA petition
____________________________________________


1
   Before doing so we noted that, although Appellant was represented by new
counsel on appeal, the record did not contain any order granting Appellant’s
original trial counsel leave to withdraw. See Calbert, at *6-7 n.1. In fact,
we stated that “Appellant does not explain what occurred to his original trial
counsel following the plea, or why [he] acted in a pro se capacity when he
filed” his notice of appeal and other motions. Id. In addition, we noted that
nothing in the record indicated that Appellant’s pro se filings were forwarded
to trial counsel, who remained counsel of record, pursuant to Pa.R.Crim.P.
5769(A)(4).

2
    Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).




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without a hearing. Appellant filed a response. By order entered January 9,

2017, the PCRA court dismissed Appellant’s petition.        This pro se appeal

followed. Both Appellant and the PCRA court have complied with Pa.R.A.P.

1925.

        Appellant raises the following issues:

        1.    Did Guilty Plea Counsel Fincourt Shelton[,] and Direct
        Appeal Counsel, James Peters and William Wismer render
        ineffective assistance?

        2.     Was Guilty Plea Counsel, Fincourt Shelton, ineffective for
        failing to perfect [Appellant’s] appellate rights and Direct Appeal
        Counsel James Peters and William Wismer ineffective for failing
        to raise Guilty Plea Counsel’s ineffectiveness?

        3.    Was Direct Appeal Counsel, James Peters and William
        Wismer, ineffective and [Appellant] prejudiced by their failure to
        object to and request correction or modification of a doctored
        transcript introduced by the Commonwealth?

        4.    Was Guilty Plea Counsel ineffective for failing to acquire
        discovery prior to advising [Appellant] to plead guilty?

        5.   Was [Guilty Plea Counsel] ineffective for advising
        [Appellant] to plead guilty despite the existence of a meritorious
        suppression claim?

        6.    Does an invalid warrant render the evidence seized
        constitutionally infirm?

        7.     Was [Appellant’s] arrest made in violation of the Municipal
        Police Jurisdiction Act (MPJA) and did the violation prejudiced
        [sic] [Appellant]?

        8.    Was [Appellant’s] arrest unlawful?

        9.   Did Guilty Plea Counsel render ineffective assistance for
        inadequately explaining [Appellant’s] rights, for lack of
        communication, and by advising [Appellant] to waive his pre-
        sentence investigation?




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      10. Was [Guilty Plea Counsel] ineffective for failing to seek
      post-sentence withdraw of guilty plea colloquy [sic] and violation
      of Pennsylvania’s Forfeiture Act?

      11. Is [Appellant’s] guilty plea, induced by [Guilty Plea
      Counsel] threatening to withdraw, legally void?

      12. Was [the] plea colloquy defective for failing to delve into
      the six questions stated in Rule 590 of Pennsylvania’s Rules of
      Appellate [sic] Procedure?

      13. Does the Commonwealth’s violation of Pennsylvania’s
      Forfeiture Act render [Appellant’s] sentence illegal?

      14. Did the cumulative impact of all of the errors deprive
      [Appellant] of adequate representation and due process?

Appellant’s Brief at 4-7.

      When examining a post-conviction court's grant or denial of relief, we

are limited to determining whether the court's findings were supported by

the record and whether the court's order is otherwise free of legal error.

Commonwealth v. Quaranibal, 763 A.2d 941, 942 (Pa. Super. 2000). We

will not disturb findings that are supported in the record.   Id.   The PCRA

provides no absolute right to a hearing, and the post-conviction court may

elect to dismiss a petition after thoroughly reviewing the claims presented

and determining that they are utterly without support in the record. Id.

      Moreover, to be eligible for post-conviction relief, a petitioner must

plead and prove by a preponderance of the evidence that his conviction or

sentence resulted from one or more of the enumerated errors or defects in

42 Pa.C.S.A. section 9543(a)(2) and that the issues he raises have not been

previously litigated.   Commonwealth v. Carpenter, 725 A.2d 154, 160


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(Pa. 1999). An issue has been "previously litigated" if the highest appellate

court in which the petitioner could have had review as a matter of right has

ruled on the merits of the issue, or if the issue has been raised and decided

in   a    proceeding    collaterally    attacking   the   conviction   or   sentence.

Carpenter, 725 A.2d at 160; 42 Pa.C.S.A. § 9544(a)(2), (3). If a claim has

not been previously litigated, the petitioner must then prove that the issue

was not waived.        Carpenter, 725 A.2d at 160.        An issue will be deemed

waived under the PCRA “if the petitioner could have raised it but failed to do

so before trial, at trial, during unitary review, on appeal, or in a prior state

post-conviction proceeding.” 42 Pa.C.S.A. § 9544(b).

         Because Appellant “could have raised” his issues 6, 7, 8, 11, and 12

“but failed to do so before trial, at trial, during unitary review, on appeal, or

in a prior state post-conviction proceeding,” they are deemed waived.             42

Pa.C.S.A. § 9544(b). See also Commonwealth v. Pfaff, 437 A.2d 1188,

1191 (Pa. 1981) (explaining that absent any claim of ineffective assistance

of counsel justifying petitioner’s failure to raise on direct appeal an error in

the court’s instructions to the jury, the issue was waived).3



____________________________________________


3
 These claims are also waived because Appellant failed to raise them in his
Pa.R.A.P. 1925(b) statement. Commonwealth v. Smith, 146 A.2d 257,
262 (Pa. Super. 2016).




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      In his thirteenth issue, Appellant challenges the legality of his

sentence.     Such a claim is not subject to waiver, provided it is properly

developed. See Commonwealth v. Bowers, 25 A.3d 349, 352 (Pa. Super.

2011) (explaining that a challenge to the legality of a sentence may be

raised as a matter of right and is not subject to waiver).    Here, however,

Appellant asserts in only the most cursory fashion that his consent to forfeit

his car as part of his plea agreement violated Pennsylvania’s forfeiture

statute.     See Appellant’s Brief at 43-44.   This claim is undeveloped and,

therefore, waived. See generally, Commonwealth v. Tielsch, 934 A.2d

81, 93 (Pa. Super. 2007) (holding that undeveloped claims will not be

considered on appeal).

       Because Appellant’s remaining claims challenge the stewardship of

prior counsel, we apply the following principles. Counsel is presumed to be

effective,    and   Appellant   has   the   burden   of   proving   otherwise.

Commonwealth v. Pond, 846 A.2d 699, 708 (Pa. Super. 2004).

      In order for Appellant to prevail on a claim of ineffective
      assistance of counsel, he must show, by a preponderance of the
      evidence, ineffective assistance of counsel which, in the
      circumstances of the particular case, so undermined the truth-
      determining process that no reliable adjudication of guilt or
      innocence could have taken place.          Commonwealth v.
      Kimball, 555 Pa. 299, 724 A.2d 326, 333 (1999). Appellant
      must demonstrate: (1) the underlying claim is of arguable merit;
      (2) that counsel had no reasonable strategic basis for his or her
      action or inaction; and (3) but for the errors and omissions of
      counsel, there is a reasonable probability that the outcome of
      the proceedings would have been different. Id. The petitioner
      bears the burden of proving all three prongs of the test.


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      Commonwealth v. Meadows, 567 Pa. 344, 787 A.2d 312,
      319-20 (2001).

Commonwealth v. Johnson, 868 A.2d 1278, 1281 (Pa. Super. 2005). In

assessing a claim of ineffectiveness, when it is clear that an appellant has

failed to meet the prejudice prong, the court may dispose of the claim on

that basis alone, without a determination of whether the first two prongs

have been met.       Commonwealth v. Travaglia, 661 A.2d 352, 357 (Pa.

1995). Further, Counsel cannot be deemed ineffective for failing to pursue a

meritless claim.   Commonwealth v. Loner, 836 A.2d 125, 132 (Pa. Super.

2003) (en banc), appeal denied, 852 A.2d 311 (Pa. 2004).

      Before an evidentiary hearing will be granted, a PCRA petitioner “must

set forth an offer to prove at an appropriate hearing sufficient facts upon

which a reviewing court can conclude that trial counsel may have, in fact,

been ineffective.”    Commonwealth v. Begley, 780 A.2d 605, 635 (Pa.

2001) (quoting Commonwealth v. Pettus, 424 A.2d 1332, 1335 (Pa.

1981).


      We first address Appellant’s third issue in which he asserts that direct

appeal counsel were ineffective for failing to object to, and request

correction or modification of, a “doctored” transcript introduced into the

certified record by the Commonwealth.          According to Appellant, the

transcript that appeared in the certified record when his appeal was decided

did not include fourteen pages in which he initially rejected the plea



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agreement offered by the Commonwealth, his desire to go to trial, and the

trial court’s offering of a continuance so that he could more fully consider the

plea offer. See Appellant’s Brief at 20. Appellant also contends that these

pages would demonstrate guilty plea counsel’s “off the record—coercing

[him] into forgoing the continuance.”       Id.   (footnote omitted).   Appellant

avers that “[c]omparison of both of the [] transcripts not only support these

allegations but the editing out of the first 14 pages by the state will also

shock the conscience of any fair-minded jurist.” Appellant’s Brief at 20.

      Appellant’s claim lacks arguable merit.           Initially, we note that

transcripts generally are prepared at the defendant’s request following the

filing of an appeal. The Commonwealth is not involved in the process, and,

although the certified record now includes another copy of the guilty plea

colloquy that includes his initial rejection of the plea offer, Appellant proffers

no evidence that the Commonwealth interfered in any way with the

preparation of any transcript. Moreover, on appeal this Court affirmed his

judgment of sentence based upon a finding of waiver for failing to file a

timely motion to withdraw his plea.        See Calbert, at 8-10.        Thus, the

absence of the initially omitted pages is of no consequence, and therefore,

Appellant cannot establish prejudice.

      Appellant’s   remaining   ineffectiveness    claims   involve   Guilty   Plea

Counsel’s effectiveness both before and after the entry of the plea. We first

address Appellant’s claims involving guilty plea counsel’s failure to file a



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motion to withdraw his guilty plea and/or to perfect an appeal even though

Appellant asserts that he asked him to do so. According to Appellant,

       [i]mmediately following the [p]lea, Appellant requested counsel
       to file a [m]otion to [w]ithdraw the plea. However, [c]ounsel
       not only failed to do so but also failed to consult with Appellant
       without formally seeking or being granted leave to withdraw[.]
       Appellant, in a desperate attempt to preserve his appeal rights,
       was left to [pro se] file a[n untimely] [p]ost [s]entence [m]otion
       to [w]ithdraw his [g]uilty [p]leas[.]


Appellant’s Brief at 8.       Moreover, as noted above, on direct appeal we

questioned plea counsel’s status and further questioned why Appellant’s pro

se filings were not forwarded to him. See, supra, n.1.

       Neither the PCRA court nor the Commonwealth directly addresses this

claim.4   Rather, both assert that the guilty plea proceedings establish that

Guilty Plea Counsel’s representation was effective. As correctly recognized

by Appellant, however, if counsel is found to have ignored a petitioner’s

request to file an appeal, or did not consult with him regarding same, the

petitioner is entitled to the reinstatement of his appeal rights nunc pro tunc

and no merit analysis of any other issues occurs. See Appellant’s Brief at
____________________________________________


4
  The Commonwealth did reference a letter to Guilty Plea Counsel that
Appellant had attached to his pro se PCRA petition. This letter was dated
ten days after entry of the pleas. The Commonwealth therefore argues
“[t]here is no suggestion that counsel was aware of [Appellant’s] claim
before the ten-day period to file for a motion to withdraw [the plea]
expired.”   Commonwealth’s Brief at 22.     As noted infra, Appellant’s
assertions have raised a factual issue to be resolved at an evidentiary
hearing.




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14; see also Commonwealth v. Donaghy, 33 A.3d 12, 15-17 (Pa. Super.

2011) (reiterating that when a defendant clearly asks for an appeal and

counsel fails to file one or consult with his client, a presumption of prejudice

arises regardless of the merits of the underlying claims).

       Given these circumstances, we agree with Appellant that he has raised

a genuine issue of material fact which warrants remanding this case for an

evidentiary hearing. Although Appellant litigated a counseled appeal in this

case, the raising of a non-preserved issue resulting in a finding of waiver has

been determined by our Supreme Court to be the functional equivalent of no

appeal. See, generally, Commonwealth v. Rosado, 150 A.3d 425 (Pa.

2016). We therefore vacate the order denying Appellant’s PCRA petition and

remand for an evidentiary hearing so that plea counsel can answer

Appellant’s assertions regarding the quality of his representation.5

       Order vacated.        Case remanded for further proceedings consistent

with this memorandum. Jurisdiction relinquished.




____________________________________________


5
   Although within this same issue, Appellant raises a layered claim of
appellate counsel ineffectiveness, the claim is waived for failure to raise it in
his Pa.R.A.P. 1925(b) statement. See n.3, supra. In addition, given our
remand, we need not address Appellant’s fourteenth claim in which he
alleges cumulative prejudice.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/2/2017




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