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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA                :     IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                                            :
                   v.                       :
                                            :
                                            :
JAMES JENKINS,                              :
                                            :
                   Appellant                :     No. 191 EDA 2016

                Appeal from the PCRA Order December 18, 2015
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0005938-2011

BEFORE: BENDER, P.J.E., DUBOW, J., and SOLANO, J.

MEMORANDUM BY DUBOW, J.:                              FILED MARCH 06, 2017

        Appellant, James Jenkins, appeals from the December 18, 2015 Order

denying his first Petition for relief filed pursuant to the Post Conviction Relief

Act (“PCRA”), 42 Pa.C.S. §§ 9541-46, without an evidentiary hearing. After

careful review, we affirm.

        On August 10, 2011, following a hearing,1 Appellant entered a plea of

nolo contendere to Aggravated Assault and Possession of an Instrument of

Crime (“PIC”).2 At the time of the guilty plea, Appellant disclosed that, while

in custody, he was diagnosed with schizophrenia. Appellant and his counsel



1
  Edwin Hernandez entered a guilty plea during the same hearing on
separate and unrelated charges of Possession with Intent to Deliver—
Cocaine at docket number CP-51-CR-0005391-2011.
2
    18 Pa.C.S. § 2702(a) and 18 Pa.C.S. § 907(a).
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both stated on the record at the plea hearing that neither Appellant’s

schizophrenia, nor the medication he was taking to control it, affected

Appellant’s ability to plead competently.     Appellant testified that he was

pleading no contest of his own free will.

      On the same day, the trial court sentenced Appellant to a negotiated

sentence of six to twenty years’ incarceration for the Aggravated Assault

charge, and a concurrent term of two to five years’ incarceration for the PIC

charge.      Appellant did not file a direct appeal from his Judgment of

Sentence.

      On April 11, 2012, Appellant filed a timely pro se PCRA Petition. On

August 22, 2012, Appellant filed an Amended pro se Petition.         The PCRA

court appointed counsel who filed an amended PCRA Petition on November

9, 2014.     In his Petition and Amended Petition, Appellant alleged that his

trial counsel was ineffective for failing to formulate a defense strategy and

investigate witnesses, for coercing Appellant into entering an unknowing and

involuntary guilty plea, and for failing to file a Motion to Withdraw the guilty

plea as requested by Appellant. Appellant also claimed that the trial court

sentenced him to an excessive sentence, failed to respond to his letter to

withdraw his guilty plea, and prevented him from accessing discovery

materials.

      On November 9, 2015, the PCRA court notified Appellant of its intent

to dismiss Appellant’s Petition without a hearing pursuant to Pa.R.Crim.P.



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907. The court dismissed Appellant’s Petition on December 18, 2015. This

appeal followed.3 On May 5, 2016, the trial court filed an Opinion in support

of its Order dismissing Appellant’s Petition.

      Appellant raises the following two issues on appeal, which we have

reordered for ease of disposition:

         1. Whether the court erred in not granting relief on the
         PCRA [P]etition alleging counsel was ineffective[?]

         2. Whether the court erred in denying the Appellant’s
         PCRA [P]etition without an evidentiary hearing on the
         issues raised in the amended PCRA [P]etition regarding
         trial counsel’s ineffectiveness?

Appellant’s Brief at 9.

      In Appellant’s first issue, he avers that the PCRA court erred in

concluding he did not receive ineffective assistance of counsel. Id. at 18-23.

We disagree.

      Initially,

         “Our standard in reviewing a PCRA court order is abuse of
         discretion. We determine only whether the court's order is
         supported by the record and free of legal error.”
         Commonwealth v. Battle, 883 A.2d 641, 647 (Pa.
         Super. 2005). “This Court grants great deference to the
         findings of the PCRA court, and we will not disturb those
         findings merely because the record could support a
         contrary holding.” Commonwealth v. Hickman, 799
         A.2d 136, 140 (Pa. Super. 2002). We will not disturb the
         PCRA court's findings unless the record fails to support
         those findings. Id.


3
  The PCRA court did not order Appellant to file a Pa.R.A.P. 1925(b)
Statement.



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        “A criminal defendant has the right to effective counsel
       during a plea process as well as during trial.” Id. at 141.
       “A defendant is permitted to withdraw his guilty plea under
       the PCRA if ineffective assistance of counsel caused the
       defendant to enter an involuntary plea of guilty.”
       Commonwealth v. Kersteter, 877 A.2d 466, 468 (Pa.
       Super. 2005).

       We conduct our review of such a claim in accordance with
       the three-pronged ineffectiveness test under section
       9543(a)(2)(ii) of the PCRA. See [Commonwealth v.]
       Lynch [, 820 A.2d 728, 732 (Pa. Super. 2003)]. “The
       voluntariness of the plea depends on whether counsel's
       advice was within the range of competence demanded of
       attorneys in criminal cases.”     Id. at 733 (quoting
       Commonwealth v. Hickman, 2002 PA Super 152, 799
       A.2d 136, 141 (Pa. Super. 2002)).

       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 (Pa. 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. Commonwealth v. Meadows, 567 Pa. 344,
       787 A.2d 312, 319-20 (2001).           Commonwealth v.
       Johnson, 868 A.2d 1278, 1281 (Pa. Super. 2005).
       Kersteter, 877 A.2d at 469-69 [sic]. Moreover, trial
       counsel is presumed to be effective. Commonwealth v.
       Carter, 540 Pa. 135, 656 A.2d 463, 465 (1995).
       Commonwealth v. Rathfon, 899 A.2d 365, 368-69 (Pa.
       Super. 2006).

       Additionally,




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         With regard to prejudice, in Hickman, we noted that “[t]o
         succeed in showing prejudice, the defendant must show
         that it is reasonably probable that, but for counsel's errors,
         he would not have pleaded guilty and would have gone to
         trial. The ‘reasonable probability’ test is not a stringent
         one.” Hickman, 799 A.2d at 141 (citations omitted;
         emphasis added). The Court in Hickman derived this
         standard from Nix v. Whiteside, 475 U.S. 157, 175 106
         S.Ct. 988, 89 L.Ed.2d 123 (1986), which held that “[a]
         reasonable probability is a probability sufficient to
         undermine confidence in the outcome.”

Commonwealth v. Patterson, 143 A.3d 394, 397-98 (Pa. Super. 2016).

      With respect to the voluntariness of a plea, “where the record clearly

demonstrates that a guilty plea colloquy was conducted, during which it

became evident that the defendant understood the nature of the charges

against him, the voluntariness of the plea is established.       A defendant is

bound by the statements he makes during his plea colloquy’ and may not

assert grounds for withdrawing the plea that contradict statements made

when he pled.”     Commonwealth v. Stork, 737 A.2d 789, 790-91 (Pa.

Super. 1999) (citations omitted).

      In his Brief, Appellant first claims that trial counsel provided ineffective

assistance because he induced Appellant to enter an unknowing and

involuntary guilty plea.   Appellant’s Brief at 18-21.    Specifically, Appellant

claims his counsel was ineffective because he coerced Appellant into

entering a guilty plea, failed to file motions requested by Appellant, and

failed to request a psychiatric evaluation of Appellant’s competency to enter

a plea despite Appellant being diagnosed as schizophrenic. Id. at 19.



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     The PCRA judge, who also presided over Appellant’s plea hearing,

reviewed Appellant’s Amended PCRA Petition and the record, after which she

denied Appellant relief.   The court stated in its Opinion in support of

dismissal:

        In this case, Appellant completed a four-page colloquy on
        August 10, 2011. Moreover, the court’s colloquy with
        Appellant established that he was made aware of all
        required aspects in regard to pleading no contest and
        understood the same.

        In hindsight, Appellant now contends that his plea was
        involuntary or induced because he was diagnosed with
        schizophrenia and couldn’t understand his actions. He also
        claims that he was unduly pressured by his counsel to
        accept the plea.

                                    ***

        In the instant case, Appellant disclosed his [schizophrenia]
        diagnosis in both the written and oral colloquy, and
        subsequently testified that neither his mental illness nor
        medication interfered with his understanding or his
        decision to plead nolo contendere.             Furthermore,
        Appellant’s counsel, having “had extensive conversations
        about the nolo contendere plea,” testified to his belief in
        Appellant’s competence.

        Furthermore, the Supreme Court of Pennsylvania has held
        that the diagnosis of schizophrenia combined with the
        claim of undue pressure from counsel is not grounds for
        relief. In Commonwealth v. Fernandez, 487 Pa. 493
        (1980), the Supreme Court upheld the lower court’s
        finding that a schizophrenic prisoner was competent during
        his colloquy. Additionally, Fernandez’s psychiatric report
        showed “that he might act impulsively under stress,” which
        could lead him to buckle under his counsel’s allegedly
        undue pressure to plead guilty. However, Fernandez’s
        appeal was denied because no evidence was presented
        “showing that his trial attorney created unusual pressure
        to plead guilty, nor did Fernandez’s conduct at the plea


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            proceeding indicate that he was acting impulsively or
            without understanding. Id. at 499.

            Lastly, Appellant contends that he was confused during the
            proceeding because two defendants were being questioned
            at the same time. A cursory review of the record shows
            that each defendant was questioned in turn and addressed
            by name when answering each question.              Neither
            defendant answered out of turn at any point during the
            proceeding or expressed any confusion about which
            defendant was being addressed.

Trial Ct. Op., 5/5/16, at 6-7 (citation to Notes of Testimony omitted).

         Our review of the certified record, including the Notes of Testimony,

confirms the PCRA court’s assessment that Appellant’s “hindsight refutation

of competence is insufficient to overcome his testimony” at the guilty plea

hearing.     Id. at 7. Accordingly, Appellant is not entitled to relief on this

issue.

         Appellant also claims that the PCRA court erred in concluding that

Appellant received effective assistance of counsel because counsel failed to

withdraw Appellant’s guilty plea after Appellant requested that he do so.

Appellant’s Brief at 22-23.      In his Brief, Appellant does not point to any

evidence of record in support of his claim that he asked his trial counsel to

withdraw his guilty plea.

         With respect to this issue, the PCRA court opined as follows:

            Appellant’s argument stems from a letter dated April 13,
            2012, seven months after sentencing, stating “I sent [t]rial
            [c]ounsel a letter several days after sentencing advising I
            want to withdraw my guilty plea and go to trial.” Should
            such a bald claim contained in a single letter, months after
            a guilty plea, be permitted to grant relief under the


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          [PCRA], Pennsylvania prisons would stand empty. Without
          any corroborating evidence or supporting documentation of
          a request to withdraw his guilty plea, Appellant’s claim
          must fail.

Trial Ct. Op. at 7-8.

        We agree with the PCRA court that Appellant’s bald assertion, made

seven months after sentencing, that he asked his trial counsel to withdraw

his plea is insufficient to support Appellant’s claim that his counsel was

ineffective. Appellant is not, therefore, entitled to relief.

        In his next issue, Appellant claims that the PCRA court erred in

dismissing his Amended PCRA Petition without a hearing. Appellant’s Brief

tat 16-17. We disagree.

        There is no absolute right to an evidentiary hearing, and a PCRA court

has discretion to deny a PCRA Petition without a hearing “if the PCRA court

determines that the petitioner’s claim is patently frivolous and is without a

trace    of   support   in   either   the   record   or   from   other   evidence.”

Commonwealth v. Hart, 911 A.2d 939, 941 (Pa. Super. 2006) (citation

omitted).     When the PCRA court denies a Petition without an evidentiary

hearing, we “examine each issue raised in the PCRA [P]etition in light of the

record certified before it in order to determine if the PCRA court erred in its

determination that there were no genuine issues of material fact in

controversy and in denying relief without conducting an evidentiary

hearing.” Commonwealth v. Khalifah, 852 A.2d 1238, 1240 (Pa. Super.

2004).


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      As   discussed    supra,   the   PCRA   court   properly   concluded   that

Appellant’s claims of ineffective assistance of trial counsel lacked merit.

Moreover, in his Brief, Appellant has not referred this Court to any genuine

issues of material fact in controversy with respect to the claims raised.

Therefore, since Appellant’s claims were frivolous, and without any support

in the record or from other evidence, we conclude that the trial court did not

err in denying relief without conducting an evidentiary hearing. See Hart,

911 A.2d at 941.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/6/2017




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