J-S68015-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                         Appellee

                    v.

RONALD WILLIAMS,

                         Appellant                    No. 2962 EDA 2013


         Appeal from the PCRA Order entered September 27, 2013,
           in the Court of Common Pleas of Philadelphia County,
           Criminal Division, at No(s): CP-51-CR-0008316-2009


BEFORE: ALLEN, JENKINS, and MUSMANNO, JJ.

MEMORANDUM BY ALLEN, J.:                        FILED NOVEMBER 07, 2014

      Ronald Williams (“Appellant”) appeals from the order denying his

petition for relief under the Post-Conviction Relief Act (“PCRA”), 42 Pa.C.S.A.

sections 9541-46. We affirm.

      The PCRA court summarized the pertinent facts and procedural history

as follows:

         1. [Appellant], along with his son Ronald Williams, Jr., and
         a third co-defendant, Michael Raines, was arrested on
         December 18, 2008 and charged with possession of a
         controlled substance with intent to deliver, violations of the
         uniform firearms act, and cruelty to animals.

         2. On February 2, 2011, immediately after this Court
         denied [Appellant’s] Motion to Suppress, [Appellant] spoke
         with [trial counsel], and requested that [trial counsel]
         explore the possibility of a guilty plea.

         3. During plea negotiations, [Appellant] expressed his wish
         that his son, Ronald Williams, Jr., not spend any more time
         in custody.
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          4. [Trial counsel and the Commonwealth] were eventually
          able to work out a negotiated plea where [Appellant]
          would receive a total sentence of six to twelve years’
          incarceration and Williams, Jr. would receive a sentence of
          two to twenty-three months’ incarceration with immediate
          parole.

          5. [Appellant] agreed to this because it meant that his son
          would receive no further time in custody.

Findings of Fact and Conclusions of Law, 9/27/13, at 1.         That same day,

Appellant entered a guilty plea to various charges, and the trial court

imposed the negotiated sentence of six to twelve years of imprisonment.

Appellant filed neither post-sentence motions nor a timely appeal to this

Court.

      On August 16, 2011, Appellant filed a pro se PCRA petition. The PCRA

court appointed counsel, and on July 12, 2012, PCRA counsel filed an

amended petition. Within this amended petition, Appellant claimed that trial

counsel was ineffective for failing to file post-sentence motions or a direct

appeal.

      The PCRA court held an evidentiary hearing on August 23, 2013. At

this hearing, Appellant, his mother, and trial counsel testified. Following the

hearing, the PCRA court made these additional factual findings:

          6. Following the plea, [Appellant] did not contact [trial
          counsel] to ask him to file either a motion to withdraw the
          plea or a notice of appeal.

          7. [Appellant’s] mother, Marian Williams, was present for
          the plea and testified that at some point following the plea,
          [Appellant] called her from prison and told her to tell [trial
          counsel] to file a direct appeal.



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        8. Marian Williams called [trial counsel’s] office and left a
        message with an unidentified woman. She never spoke to
        [trial counsel] following this and did not express to the
        unidentified woman her desire for [trial counsel] to file a
        direct appeal.

        9. [Trial counsel] testified that he was never contacted by
        [Appellant] or any member of his family in relation to filing
        a motion or an appeal in this case; on the contrary, he
        noted that [Appellant] appeared pleased that a resolution
        involving [Appellant’s] son could be reached.

Findings of Fact and Conclusions of Law, 9/27/13, at 1.        Based on these

findings, the PCRA court made the following conclusions of law:

        1. This Court finds [trial counsel’s] testimony that he was
        never contacted in relation to a post-sentence motion or
        direct appeal credible.

        2. [Appellant] therefore cannot establish that he is entitled
        to relief with respect to a direct appeal.

        3. Furthermore, [Appellant] has not suggested any reason
        why he suffered prejudice as a result of not having post-
        sentence motions filed on his behalf.

        4. According to [Appellant’s] own PCRA attorney, he was
        simply “dissatisfied” with the plea he entered in the days
        [sic] following February 2, 2011.

        5. Mere dissatisfaction or regret is not a basis for
        withdrawing a guilty plea. Rather, a defendant who wishes
        to withdraw a guilty plea after sentencing must
        demonstrate “manifest injustice”, which can be shown by
        proving that the plea was involuntary. Commonwealth
        v. Muhammad, 794 A.2d 378 (Pa. Super. 2002)[.]

        6. [Appellant] does not claim his plea was involuntary. To
        the contrary, [Appellant] participated extensively in the
        plea negotiations and knowingly entered into the plea deal,
        in part, because he thought it would help his son.

        7. For that reason, [Appellant] is not entitled to relief.



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Findings of Fact and Conclusions of Law, 9/27/13, at 2.

      By order entered September 27, 2013, the PCRA court denied

Appellant post-conviction relief. This timely appeal followed. Both Appellant

and the PCRA court have complied with Pa.R.A.P. 1925.

      Appellant’s sole claim on appeal is that the PCRA court erred in

denying his PCRA petition. According to Appellant, “[t]his case presents the

question of whether there is undue pressure exerted on a defendant where it

is a quid pro quo that a co-defendant relative would receive a lighter

sentence in exchange of the guilty plea.”        Appellant’s Brief at 10.   Upon

review, we conclude that Appellant’s claim is waived under the PCRA

because he filed neither a post-sentence motion to withdraw his guilty plea

nor a direct appeal.    See generally, 42 Pa.C.S.A. § 9544(b).         Thus, we

address Appellant’s underlying issue, i.e., whether trial counsel was

ineffective for failing to file an appeal on Appellant’s behalf.

      In reviewing the propriety of an order granting or denying PCRA relief,

an appellate court is limited to ascertaining whether the record supports the

determination of the PCRA court and whether the ruling is free of legal error.

Commonwealth v. Johnson, 966 A.2d 523, 532 (Pa. 2009). We pay great

deference to the findings of the PCRA court, “but its legal determinations are

subject to our plenary review.” Id. Stated differently, “[t]he PCRA court’s

findings will not be disturbed unless there is no support for the findings in




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the certified record.”   Commonwealth v. Hernandez, 79 A.3d 649, 651

(Pa. Super. 2013).

      In order to be eligible for relief under the PCRA, 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). One of the errors enumerated in section

9543(a)(2) of the PCRA is a claim of ineffectiveness of counsel. To obtain

relief under the PCRA premised on a claim that counsel was ineffective, a

petitioner must establish by a preponderance of the evidence that counsel's

ineffectiveness so undermined the truth-determining process that no reliable

adjudication of guilt or innocence could have taken place. Id. “Generally,

counsel’s performance is presumed to be constitutionally adequate, and

counsel will only be deemed ineffective upon a sufficient showing by the

petitioner.” Id. This requires the petitioner to demonstrate that: (1) the

underlying claim is of arguable merit; (2) counsel had no reasonable

strategic basis for his or her action or inaction; and (3) petitioner was

prejudiced by counsel's act or omission. Id. at 533. A finding of "prejudice"

requires the petitioner to show "that there is a reasonable probability that,

but for counsel’s unprofessional errors, the result of the proceeding would

have been different." Id. 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).


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            This Court recently summarized:

            “Before a court will find ineffective assistance of counsel
         for failing to file a direct appeal, the defendant must prove
         that he requested an appeal and that counsel disregarded
         that request.” Commonwealth v. Knighten, 742 A.2d
         679, 682 (Pa. Super. 1999), appeal denied, 563 Pa. 659,
         759 A.2d 383 (2000).

            The rule set out by Knighten was subsequently
         modified by more recent decisions, particularly Roe v.
         Flores-Ortega, 528 U.S. 470, 480, 120 S.Ct. 1029, 145
         L.Ed.2d 985 (2000), and its Pennsylvania expression,
         Commonwealth v. Touw, 781 A.2d 1250, 1254-1255
         (Pa. Super. 2001). These cases impose a duty on counsel
         to adequately consult with the defendant as to the
         advantages and disadvantages of an appeal where there is
         reason for counsel to think that a defendant would want to
         appeal. The failure to consult may excuse the defendant
         from his obligation to request an appeal under Knighten,
         such that counsel could still be found to be ineffective in
         not filing an appeal even where the defendant did not
         request the appeal.

            Pursuant to Flores-Ortega and Touw, counsel has a
         constitutional duty to consult with a defendant about an
         appeal where counsel has reason to believe either (1) that
         a rational defendant would want to appeal (for example,
         because there are non-frivolous grounds for appeal), or (2)
         that the particular defendant reasonably demonstrated to
         counsel that he was interested in appealing.

Commonwealth v. McDermitt, 66 A.3d 810, 815 (Pa. Super. 2013).

      Here, Appellant does not assert a right to relief based upon Flores-

Ortega and Touw, supra.        Indeed, the PCRA court accepted as credible

trial counsel’s testimony that Appellant was fully satisfied with the

negotiated plea, and with the disposition of both his case and that of his son.

See, supra. The PCRA court further credited trial counsel’s testimony that



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neither Appellant nor any member of his family requested that he file an

appeal.   As a matter of credibility, the PCRA court believed trial counsel’s

version of the facts.      We cannot disturb this determination.           See

Commonwealth v. Harmon, 738 A.2d 1023, 1025 (Pa. Super. 1999)

(explaining that when a PCRA court’s determination of credibility is

supported by the record, it cannot be disturbed on appeal).

      In sum, our review of the record supports the PCRA court’s conclusion

that Appellant never requested that trial counsel file an appeal.         Thus,

Appellant’s ineffectiveness claim fails, Harmon, 738 A.2d at 1025, and we

affirm the PCRA court’s order denying Appellant post-conviction relief.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/7/2014




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