J-S53019-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA



                       v.

JHONTAE MARQUEZ KING

                            Appellant                No. 1402 MDA 2014


                   Appeal from the PCRA Order July 16, 2014
                 In the Court of Common Pleas of York County
              Criminal Division at No(s): CP-67-CR-0003879-2013


BEFORE: DONOHUE, J., OTT, J., and MUSMANNO, J.

MEMORANDUM BY OTT, J.:                            FILED OCTOBER 15, 2015

        Jhontae Marquez King appeals the order entered July 16, 2014, in the

York County Court of Common Pleas, dismissing his first petition filed

pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. § 9541 et seq.

King seeks relief from the judgment of sentence of an aggregate five to 12

years’ imprisonment, imposed following his entry of a guilty plea to charges

of robbery and persons not to possess firearms.1 On appeal, King contends

the PCRA court erred in dismissing his petition because plea counsel was

ineffective for failing to file a suppression motion challenging a photo line-up




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1
    18 Pa.C.S. §§ 3701(a)(1)(ii) and 6105(a)(1), respectively.
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identification, and for failing to provide satisfactory representation prior to

the entry of the plea. For the reasons set forth below, we affirm.

       The facts underlying King’s guilty plea are as follows. 2 On January 26,

2013, the victim drove to Lincoln Street in York, Pennsylvania, to meet a

man whom he believed was going to sell him a cell phone. Once the victim

arrived, King and his co-defendant, Koran Culver, entered the victim’s car

and robbed him at gunpoint. King pointed a gun at the victim, while Culver

stole his watch, wallet and cell phone. The police connected Culver to the

phone number of the person the victim intended to meet. On February 2,

2013, the victim positively identified Culver from a photo lineup.        After

further investigation, King was identified as the second suspect. The victim

positively identified King from a photo lineup in April of 2013, and King was

later charged with robbery, conspiracy, theft, receiving stolen property, and

persons not to possess firearms.

       On May 23, 2013, Daniel Carn, Esq., entered his appearance as

privately retained counsel for King. On October 8, 2013, however, Carn filed

a motion to withdraw, averring King was “not satisfied with counsel’s

representation and ha[d] requested other counsel.”        Motion to Withdraw


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2
  These facts are gleaned from the Affidavit of Probable Cause attached to
King’s Criminal Complaint. See Criminal Complaint, Affidavit of Probable
Cause, 4/24/2013.



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Appearance, 10/8/2013, at ¶ 4.      The trial court conducted a hearing on

October 22, 2013, at which time King informed the court that he planned to

hire another attorney.   See N.T., 10/22/2013, at 3. Accordingly, the trial

court entered an order, on the record, preliminarily denying Carn’s motion to

withdraw.   However, the court further provided that it would grant the

motion “upon the entry of an appearance by another attorney[.]”       Order,

10/22/2013.

      On December 2, 2013, King was scheduled to appear for trial.

However, that day, still represented by Carn, he entered a negotiated guilty

plea to one count each of robbery and persons not to possess firearms. The

court then imposed the negotiated sentence of four and one-half to nine

years’ imprisonment on the robbery charge and a consecutive six to 36

months’ imprisonment on the firearms charge.       That same day, the trial

court revoked King’s probation on an unrelated charge and resentenced him

to a term of five to 23 months’ incarceration.

      On December 8, 2013, King, represented by new counsel, Kevin

Hoffman, Esq., filed a motion to withdraw his guilty plea.    He claimed he

only entered the guilty plea because he believed his attorney was not “fully

prepared to go to trial on his behalf.”     Motion to Withdraw Guilty Plea,

12/10/2013, at ¶ 6.      Further, King averred he had applied for court-

appointed counsel prior to his scheduled trial date, but the York County

Public Defenders’ Office had a “policy to reject any application for

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appointment when a privately retained counsel is still of-record.” Id. at ¶ 5.

On March 27, 2014, the trial court conducted a hearing on King’s motion to

withdraw, and denied the motion that same day. King did not file a direct

appeal.

       On May 1, 2014, King filed a timely, pro se PCRA petition.      Counsel

was appointed, and filed an amended petition, challenging plea counsel’s

ineffectiveness for: (1) failing to file a motion to suppress the photo line-up;

and (2) failing to prepare for trial and properly advise King before he entered

his guilty plea. See Amended PCRA Petition, 7/16/2014. On July 16, 2014,

the PCRA court conducted an evidentiary hearing. At the conclusion of the

hearing, the PCRA court denied King’s PCRA petition, and this timely appeal

follows.3

       King raises two claims on appeal, both asserting the ineffective

assistance of plea counsel.


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3
   On August 19, 2014, the PCRA court ordered King to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
King did not comply within the requisite 21-day period. However, after
inquiry by the trial court, he eventually filed a concise statement on
November 17, 2014. See PCRA Court Opinion, 12/22/2014, at 1-2. The
court then filed a statement, pursuant to Pa.R.A.P. 1925(b), noting the
issues on appeal “were thoroughly discussed at the PCRA hearing” and
referring this Court to the transcript from that hearing. Rule 1925(a)
Statement in Support of Decision, 12/22/2014, at 2.




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      Our standard of review of an order denying PCRA relief is
      whether the record supports the PCRA court’s determination and
      whether the PCRA court’s decision is free of legal error. The
      PCRA court’s findings will not be disturbed unless there is no
      support for the findings in the certified record.

Commonwealth v. Lawson, 90 A.3d 1, 4 (Pa. Super. 2014) (internal

citations omitted).

      With regard to the specific claims raised on appeal, we note:

         [I]n order to obtain relief based on [an ineffective
         assistance of counsel] claim, a petitioner must establish:
         (1) the underlying claim has arguable merit; (2) no
         reasonable basis existed for counsel’s actions or failure to
         act; and (3) petitioner suffered prejudice as a result of
         counsel’s error such that there is a reasonable probability
         that the result of the proceeding would have been different
         absent such error.

      Trial counsel is presumed to be effective, and Appellant bears
      the burden of pleading and proving each of the three factors by
      a preponderance of the evidence.

      The right to the constitutionally effective assistance of counsel
      extends to counsel’s role in guiding his client with regard to the
      consequences of entering into a guilty plea.

         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.

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Commonwealth v. Lippert, 85 A.3d 1095, 1100 (Pa. Super. 2014)

(citation omitted), appeal denied, 95 A.3d 277 (Pa. 2014).

        First, King argues counsel was ineffective for failing to file a motion to

suppress a photo lineup, which he characterizes as “overly suggestive.”

King’s Brief at 7.      He claims his photo is “obviously one of the younger

individuals in the line up.” Id. at 8. Further, King contends that if the line-

up identification had been excluded, “it would have affected the weight of

any in court identification by the victim.”          Id.   Moreover, although he

acknowledges he was also identified by his co-defendant, King asserts “the

jury would have been instructed that [the co-defendant’s] testimony need[s]

to be taken with caution.” Id. Although King does not explicitly state so in

his brief, the implication of his argument is that if the evidence had been

suppressed, he would have proceeded to trial.

        We find King’s claim has no arguable merit. Plea counsel testified at

the PCRA hearing that after viewing the photo lineup, he did not believe it

was “unusually suggestive,”4 a conclusion with which the PCRA court agreed.

See N.T., 7/6/2014, at 43 (noting that the photo lineup was entered as

Commonwealth’s Exhibit 1            at the     hearing and “[i]t   does not look

unnecessarily suggestive to the Court.”).          Our independent review of the


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4
    N.T., 7/6/2014, at 26.



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photo lineup, which is included in the certified record, reveals no basis upon

which to disagree. Furthermore, even if the trial court had suppressed the

victim’s pretrial identification, King’s co-defendant was prepared to identify

him and testify against him at trial.            Therefore, we find King has not

demonstrated counsel was ineffective for failing to file a motion to suppress

his photo lineup identification.

        Next, King contends he was improperly induced into entering a guilty

plea because “he did not believe [plea counsel] had gone over his case with

him enough to feel comfortable to proceed to trial.” King’s Brief at 8. King

claims he felt he had no choice but to enter a guilty plea at that time.

However, “after reviewing the discovery, the risks of trial, and the

circumstances of the case with PCRA counsel,” he now believes had he been

fully informed, he “would have proceeded to trial.” Id.

        During the PCRA hearing, King testified that he felt his “only option”

was to accept the Commonwealth’s plea offer because he felt counsel was

unprepared to go to trial.          N.T., 7/16/2014, at 14.     Specifically, King

asserted plea counsel (1) never discussed the evidence with him, (2)

“basically, persuaded [a potential witness] not to come on [his] behalf,”5

and (3) failed to check “the credibility of the co-defendant that [put him] at


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5
    We note King did not specify the name of this witness during the hearing.



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the crime.” Id. at 12, 14, 19. He also acknowledged that he had lied during

the plea hearing when he stated he was satisfied with plea counsel’s

representation and that he was guilty of the crimes charged.

      The PCRA court concluded, however, that King failed to demonstrate

counsel provided ineffective assistance. See N.T., 7/16/2014, at 44-48. We

agree. King’s PCRA testimony, as well as his appellate brief, contains only

bald allegations regarding counsel’s failure to prepare for trial. Furthermore,

King acknowledged in both his written and oral plea colloquy that he was

guilty of the crimes charged, and he was satisfied with the representation of

counsel. See N.T., 12/2/2013, at 3, 5-6. In fact, the trial court specifically

asked King if he had enough time to talk to his lawyer before entering the

plea, to which King responded, “Yes.” Id. at 3. The court also gave King

additional time to speak to his attorney when it appeared King was confused

about his probation revocation sentence.       See id. at 4.     When King’s

attorney informed the court that King was satisfied he would receive credit

for time served toward his probation revocation, the court asked King, again,

“Are you sure about that Mr. King? You don’t have to enter a plea. You can

go ahead with the trial if you want.” Id. at 5. King responded, “I’m sure

with that.” Id.

      We emphasize:

      The longstanding rule of Pennsylvania law is that a defendant
      may not challenge his guilty plea by asserting that he lied while
      under oath, even if he avers that counsel induced the lies. A

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      person who elects to plead guilty is bound by the statements he
      makes in open court while under oath and he may not later
      assert grounds for withdrawing the plea which contradict the
      statements he made at his plea colloquy.

Commonwealth v. Pollard, 832 A.2d 517, 524 (Pa. Super. 2003).

      Here, King’s statements under oath during his guilty plea colloquy are

binding. Therefore, King has again failed to establish his claim has arguable

merit.   Moreover, plea counsel’s testimony during the PCRA evidentiary

hearing demonstrates counsel had a reasonable basis for advising King to

accept the Commonwealth’s plea agreement.         Although King supplied the

name of a potential alibi witness, the mother of his children, counsel testified

that he investigated that witness and concluded “[s]he could not act as an

alibi witness for him[.]” N.T., 7/16/2014, at 25. Further, counsel explained:

      [W]e did take the testimony at the preliminary hearing of the
      eyewitness, the victim in this matter. The victim positively
      identified Mr. King, so we had, essentially, … no evidence, no
      alibi witness, and we had eyewitnesses of the co-defendant and
      the victim who was a very credible witness, I thought, at the
      preliminary hearing.

                                    ****

            Essentially, the only trial strategy we had was the
      credibility issue between Mr. King and the two eyewitnesses, and
      I explained to Mr. King that this would be a huge hurdle to
      overcome at trial. … [H]e was going to have a pretty tough time
      denying his identity without an alibi witness.

Id. at 26-27.   Accordingly, counsel advised King to “try to make the best

plea agreement possible” with the hope that they could “try to save him

some time in jail.”    Id. at 28.   Based upon the testimony at the PCRA


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hearing, we find counsel had a reasonable basis for recommending King

accept the negotiated plea agreement.

      Therefore, because we conclude King failed to demonstrate counsel

provided ineffective assistance, we affirm the order denying PCRA relief.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/15/2015




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