J-S13025-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                          Appellee

                     v.

DERRICK W. GIBSON

                          Appellant                   No. 1152 WDA 2014


                 Appeal from the PCRA Order June 19, 2014
                In the Court of Common Pleas of Erie County
            Criminal Division at No(s): CP-25-CR-0001901-2012


BEFORE: BENDER, P.J.E., MUNDY, J., and STABILE, J.

MEMORANDUM BY MUNDY, J.:                               FILED APRIL 28, 2015

      Appellant, Derrick W. Gibson, appeals from the June 19, 2014 order

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

Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. After careful review, we affirm.

      The certified record discloses the relevant facts and procedural history

of this case as follows.    On February 20, 2012, Appellant went to his ex-

girlfriend’s house wherein he took his ex-girlfriend, the victim, into her

bedroom, locked the door, pointed a loaded gun at her, and instructed her to

undress so he could have sex with her and then kill her. N.T., 10/31/12, at

10-12. When the victim indicated she would comply, Appellant placed the

gun on the bed, and a struggle for control of the gun ensued. Eventually,

the victim’s brother kicked in the bedroom door, overpowered Appellant, and

secured the gun. The next day, an arrest warrant was issued, and Appellant
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was arrested on February 23, 2012. On August 1, 2012, the Commonwealth

filed an information charging Appellant with one count each of attempted

rape by threat of forcible compulsion, attempted homicide, persons not to

possess firearms, receiving stolen property, unlawful restraint, terroristic

threats, possession of an instrument of crime, recklessly endangering

another person, and simple assault.1             On October 31, 2012, Appellant

entered into an open guilty plea for attempted rape by forcible compulsion,

persons not to possess firearms, and unlawful restraint.        Pursuant to the

plea agreement, the remaining charges were nolle prossed. Sentencing was

postponed to allow the completion of a pre-sentence investigation report and

a Megan’s Law assessment. On February 25, 2013, the trial court imposed

an aggregate judgment of sentence of 10½ to 21 years’ imprisonment. 2 On

March 7, 2013, Appellant filed a timely motion for modification of sentence,



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1
 18 Pa.C.S.A. §§ 901(a) (to commit 3121(a)), 901(a) (to commit 2501(a)),
6105(a)(1), 3925(a), 2902(a)(2), 2706(a)(1), 907(a), 2705, and
2701(a)(3), respectively.
2
  Specifically, the trial court sentenced Appellant to a term of imprisonment
of six and one-half to 13 years for attempted rape by threat of forcible
compulsion. On the conviction for persons not to possess firearms, the trial
court sentenced Appellant to a term of imprisonment of four to eight years
to run consecutive to the sentence for attempted rape. On the conviction for
unlawful restraint, the trial court sentenced Appellant to a term of
imprisonment of one to three years to run concurrent to the sentence for
persons not to possess firearms.




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which was denied by operation of law on July 5, 2013. Appellant did not file

a direct appeal with this Court.

       On February 10, 2014, Appellant filed a timely pro se PCRA petition,

and the PCRA court appointed counsel.            On April 28, 2014, PCRA counsel

filed a supplemental PCRA petition.            On May 14, 2014, the PCRA court

entered an opinion and notice of its intent to dismiss Appellant’s PCRA

petition without a hearing pursuant to Pennsylvania Rule of Criminal

Procedure 907(1).         Appellant did not file a response.    The PCRA court

entered a final order denying Appellant’s PCRA petition without a hearing on

June 19, 2014. On July 15, 2014, Appellant filed a timely notice of appeal.3

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

              [Whether] the PCRA [c]ourt erred in denying
              [Appellant]’s PCRA petition where he argued that he
              wished to withdraw his [guilty] plea but that his
              attorney failed to motion the court to do so[?]

Appellant’s Brief at 1.

       The following principles guide our review of an appeal from the denial

of PCRA relief.

              On appeal from the denial of PCRA relief, our
              standard and scope of review is limited to
              determining whether the PCRA court’s findings are
____________________________________________


3
 The PCRA court did not order Appellant to file a Rule 1925(b) statement,
and the PCRA court filed a Rule 1925(a) memorandum opinion directing this
Court to its May 15, 2014 opinion, which discusses its reasons for denying
PCRA relief to Appellant.




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            supported by the record and without legal error.
            [Our] scope of review is limited to the findings of the
            PCRA court and the evidence of record, viewed in the
            light most favorable to the prevailing party at the
            PCRA court level.      The PCRA court’s credibility
            determinations, when supported by the record, are
            binding on this Court. However, this Court applies a
            de novo standard of review to the PCRA court’s legal
            conclusions.

Commonwealth v. Medina, 92 A.3d 1210, 1214-1215 (Pa. Super. 2014)

(en banc) (internal quotation marks and citations omitted), appeal granted,

105 A.3d 658 (Pa. 2014). Further, in order to be eligible for PCRA relief, a

petitioner must plead and prove by a preponderance of the evidence that his

conviction or sentence arose from one or more of the errors listed at

Section 9543(a)(2) of the PCRA. 42 Pa.C.S.A. § 9543(a)(2). These errors

include ineffectiveness of counsel. Id. § 9543(a)(2)(ii). The issues raised in

a PCRA petition must be neither previously litigated nor waived.          Id.

§ 9543(a)(3).

      Our standard of review for the dismissal of a PCRA petition without

conducting a hearing is as follows.

                  [T]he right to an evidentiary hearing on a post-
            conviction petition is not absolute. It is within the
            PCRA court’s discretion to decline to hold a hearing if
            the petitioner’s claim is patently frivolous and has no
            support either in the record or other evidence. It is
            the responsibility of the reviewing court on appeal to
            examine each issue raised in the PCRA petition 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.

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Commonwealth v. Wah, 42 A.3d 335, 338 (Pa. Super. 2012) (internal

citations omitted), quoting Commonwealth v. Turetsky, 925 A.2d 876,

882 (Pa. Super. 2007), appeal denied, 940 A.2d 365 (Pa. 2007); see also

Pa.R.Crim.P. 907. “The controlling factor … is the status of the substantive

assertions in the petition. Thus, as to ineffectiveness claims in particular, if

the record reflects that the underlying issue is of no arguable merit or no

prejudice resulted, no evidentiary hearing is required.” Commonwealth v.

Baumhammers, 92 A.3d 708, 726-727 (Pa. 2014) (citations omitted).

We review a PCRA court’s decision to dismiss without a hearing for an abuse

of discretion. Wah, supra.

      In his PCRA petition, Appellant alleges ineffective assistance of trial

counsel. When reviewing a claim of ineffectiveness, we apply the following

test, first articulated by our Supreme Court in Commonwealth v. Pierce,

527 A.2d 973 (Pa. 1987).

            [C]ourts presume that counsel was effective, and
            place upon the appellant the burden of proving
            otherwise. Counsel cannot be found ineffective for
            failure to assert a baseless claim.

                   To succeed on a claim that counsel was
            ineffective, Appellant must demonstrate that: (1) the
            claim is of arguable merit; (2) counsel had no
            reasonable strategic basis for his or her action or
            inaction; and (3) counsel’s ineffectiveness prejudiced
            him.

                                       …




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                   [T]o demonstrate prejudice, appellant must
              show there is a reasonable probability that, but for
              counsel’s error, the outcome of the proceeding would
              have been different.

Commonwealth v. Michaud, 70 A.3d 862, 867 (Pa. Super. 2013) (internal

quotation marks and citations omitted). “Failure to establish any prong of

the test will defeat an ineffectiveness claim.”           Commonwealth v.

Birdsong, 24 A.3d 319, 329 (Pa. 2011).

       Appellant’s specific claim is that his trial counsel was ineffective for

failing to file a motion to withdraw Appellant’s guilty plea.4 Appellant’s Brief

at 4. Appellant indicates that he asked his trial counsel to file said motion,

but does not specify how he made the request or whether he made it before

or after sentencing. Id.; see also Appellant’s Supplemental Motion for Post

Conviction Collateral Relief, 4/28/14, at 1-2 (unnumbered).       He contends
____________________________________________


4
  Appellant comes perilously close to waiving his issue on appeal because his
brief does not cite legal authorities or conduct any meaningful analysis of his
issue. See Pa.R.A.P. 2119(a)-(b) (requiring an appellant to cite and discuss
relevant legal authority); Commonwealth v. Reyes-Rodriguez, --- A.3d --
-, 2015 WL 1068995, at *3 (Pa. Super. 2015) (finding ineffective assistance
of counsel claim raised in PCRA petition waived because appellant “failed to
develop his argument or cite authority”). Although Appellant sets forth the
Pierce standard for ineffectiveness claims, his three sentences of legal
analysis do not apply the Pierce test to this case. Appellant’s Brief at 3-4;
see also Commonwealth v. Fears, 86 A.3d 795, 804 (Pa. 2014)
(concluding that the “failure to meaningfully discuss each of the three
ineffectiveness prongs” renders claim “waived for lack of development[]”).
Nevertheless, we decline to deem this issue waived, and we will review it
because we can discern Appellant’s general argument. Cf. Green v. Green,
69 A.3d 282, 286 n.2 (Pa. Super. 2013) (observing if an appellant’s
nonconformance Rule 2119 does not hinder review of the issues or prejudice
the parties, this Court will address the merits of the appeal).



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such a motion would have been meritorious because his plea was not

voluntary, based on Appellant’s uncertainty “at the time he entered his plea

whether he wished to do so or not.” Appellant’s Brief at 4.

      We note that “a defendant has no absolute right to withdraw a guilty

plea; rather, the decision to grant such a motion lies within the sound

discretion of the trial court.”   Commonwealth v. Muhammad, 794 A.2d

378, 382 (Pa. Super. 2002). The standard for deciding whether to grant a

motion to withdraw a guilty plea varies based on when said motion is filed.

Our Supreme Court has concluded that a request to withdraw a guilty plea

made before sentencing should be “liberally allowed,” and outlined the

following two-part test for a pre-sentence motion “(1) the defendant has

provided a ‘fair and just reason’ for withdrawal of his plea; and (2) the

Commonwealth will not be ‘substantially prejudiced in bringing the case to

trial.’” Id. at 383, quoting Commonwealth v. Forbes, 299 A.2d 268, 271

(Pa. 1973). On the other hand, the standard for a post-sentence motion to

withdraw a guilty plea is much higher.     To obtain such relief, a defendant

must make a “showing of prejudice on the order of manifest injustice.”

Commonwealth v. Warren, 84 A.3d 1092, 1096 (Pa. Super 2014).              “A

plea rises to the level of manifest injustice when it was entered into

involuntarily, unknowingly, or unintelligently.” Commonwealth v. Lincoln,

72 A.3d 606, 610 (Pa. Super. 2013), appeal denied, 87 A.3d 319 (Pa. 2014).




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      We conclude Appellant’s claim of trial counsel’s ineffectiveness fails, as

Appellant has not demonstrated that his underlying claim was of arguable

merit. Appellant failed to specify whether he instructed his trial counsel to

file a motion to withdraw his guilty plea before or after sentencing. Without

specifying when he made this directive, we cannot determine his likelihood

of success. In his brief, Appellant did not apply either the pre- or the post-

sentence standard for guilty plea withdrawal to argue that the trial court

would have granted the motion. Accordingly, Appellant was not entitled to a

hearing on his PCRA petition because his claim was patently frivolous and

had no support in the record. See Wah, supra.

      Further, Appellant’s substantive claim is that he should have been

permitted to withdraw his guilty plea because he did not enter into the guilty

plea knowingly and voluntarily because he was “clearly not sure” he wanted

to enter a guilty plea. Appellant’s Brief at 4. The record belies Appellant’s

assertions.   The guilty plea transcript reveals that Appellant pled guilty to

the counts of attempted rape and persons not to possess firearms, but he

hesitated and answered that he was not pleading guilty to unlawful restraint.

The trial court informed Appellant that he did not have to enter a guilty plea

and then confirmed Appellant’s intention to plead guilty to unlawful restraint

as follows.

                    THE [TRIAL] COURT: [W]hat they’re saying
              here what you did is that in the course of the
              attempted rape and with the use -- that you held her
              so that she could not leave, against her will. That

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             basically is what unlawful restraint is. So do you
             admit that that’s what you did and plead guilty or
             plead not guilty?

                    [APPELLANT]:       Plead guilty.

N.T., 10/31/12, at 12.         Appellant also executed a written guilty plea

colloquy, which demonstrated that he intended to plead guilty to all three

charges in exchange for the Commonwealth’s agreement to nolle prosse all

of the remaining charges. Appellant’s Statement of Understanding of Rights

Prior to Guilty Plea, 10/31/12.        Accordingly, the record establishes that

Appellant    entered    into   the   guilty   plea   knowingly,   voluntarily,   and

intelligently.   Therefore, Appellant has not demonstrated his claim was of

arguable merit, and counsel was not ineffective for failing to raise a

meritless claim. See Michaud, supra. As Appellant has failed to establish

one prong of the Pierce test for ineffectiveness, his claim fails.               See

Birdsong, supra.

      Based on the foregoing, we conclude that the PCRA court properly

denied Appellant’s supplemental petition without an evidentiary hearing as

the record reflects Appellant’s ineffectiveness claim is of no arguable merit.

See Medina, supra; Baumhammers, supra.                    Accordingly, the PCRA

court’s June 19, 2014 order is affirmed.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/28/2015




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