J-S75039-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

TERRANCE MILLER DAWSON,

                        Appellant                   No. 1507 EDA 2014


            Appeal from the PCRA Order entered May 1, 2014,
            in the Court of Common Pleas of Delaware County,
           Criminal Division, at No(s): CP-23-CR-0007061-2011
                        & CP-23-CR-0001543-2012


BEFORE: ALLEN, LAZARUS, and MUNDY, JJ.

MEMORANDUM BY ALLEN, J.:                       FILED DECEMBER 08, 2014

      Terrance Miller Dawson (“Appellant”) appeals pro se 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 pertinent facts and procedural history are as follows: On October

1, 2012, Appellant entered open guilty pleas at two separate dockets.      At

CP-23-CR-0007061-2011, following the denial of his suppression motion,

Appellant pled guilty to a firearm violation, and at CP-23-CR-0001543-2012,

Appellant pled guilty to simple assault. Appellant waived the preparation of

a presentence report at each docket.        That same day, the trial court

sentenced Appellant to a term of three to six years of imprisonment for

Appellant’s firearm conviction.     The trial court deferred sentencing for

Appellant’s simple assault conviction so that the victim could appear at the
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sentencing hearing. On October 3, 2012, the victim appeared and testified

regarding the impact the crime had on her, as well as the out-of-pocket

expenses she incurred as a result of her injuries. Thereafter, the trial court

sentenced Appellant to a sentence of one to two years of imprisonment, to

be served concurrently to the sentence imposed for Appellant’s firearm

conviction. The trial court also ordered Appellant to pay restitution to the

victim in the amount of $3,700.00.      Appellant did not file post-sentence

motions or a direct appeal.

      On September 30, 2013, Appellant filed a pro se PCRA petition. The

PCRA court appointed counsel. On March 18, 2014, PCRA counsel filed an

application to withdraw and a “no-merit” letter pursuant to Commonwealth

v. Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550

A.2d 213 (Pa. Super. 1988) (en banc).      On April 2, 2014, the PCRA court

issued Pa.R.Crim.P. 907 notice of its intent to dismiss Appellant’s PCRA

petition without a hearing, and granted PCRA counsel’s application to

withdraw. Appellant did not file a timely response. By order entered May 1,

2014, the PCRA court dismissed Appellant’s petition.      This appeal follows.

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

      Appellant raises the following issues:

         1. Whether Trial Counsel was ineffective for failing to
         properly litigate the Suppression of Evidence and for failing
         to file a Brief as required following the Suppression
         Hearing?

         2. Whether Trial Counsel was ineffective for failing to
         object to [the trial court’s] Sentence, which failed to take

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         into consideration the mitigating factors in Appellant’s
         favor, and was contrary to the [trial court’s] statements at
         sentencing?

         3. Whether the restitution ordered in [CP-23-CR-0001543-
         2012] was supported by documented evidence and was
         not challenged by Trial Counsel?

         4. Whether Trial Counsel was ineffective for coercing
         Appellant to [plead] guilty after failing to properly litigate
         the Suppression of Evidence Hearing [sic]?

Appellant’s Brief at 3.

      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

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



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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).

      “When, as in this case, an assertion of ineffective assistance of counsel

is based upon the failure to pursue a suppression motion, proof of the merit

of the underlying suppression claim is necessary to establish the merit of the

ineffective assistance of counsel claim.”   Commonwealth v. Carelli, 546

A.2d 1185, 1189 (Pa. Super. 1988) (citations omitted).       In support of his

first issue, Appellant argues that trial counsel failed to properly litigate his

suppression motion because the police entered his apartment “without

probable cause or exigent circumstances.” Appellant’s Brief at 6. Appellant


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also asserts that trial counsel did not file a supporting brief following the

suppression hearing.

     In rejecting Appellant’s claim, the PCRA court first stated that

Appellant’s failure to raise with specificity his claim of ineffectiveness

required a finding of waiver. According to the PCRA court, “[Appellant] does

not in any meaningful manner elaborate on [trial counsel’s] alleged ‘failure

to properly litigate’ through an explanatory assertion stating how or by what

means [trial counsel] was remiss regarding the exclusionary motion’s

litigation.” PCRA Court Opinion, 7/18/14, at 6-7 (citing Commonwealth v.

Mann, 820 A.2d 788 (Pa. Super. 2003).

     Even absent waiver, the PCRA court found Appellant’s claim to lack

arguable merit. The PCRA court reasoned:

            [Appellant] by his [PCRA petition] failed to advance and
        likewise the record at bar lacks any evidence that [trial
        counsel] was ineffective salient to the possible suppression
        of incriminating and otherwise necessary prosecution
        evidence. Moreover, the relevant record reveals [trial
        counsel’s] full and meaningful stewardship of [Appellant’s]
        interests in filing, pursuing, litigating and arguing the
        exclusionary claim.

            Prior to [Appellant] entering his negotiated plea
        agreement [sic] a full Suppression Hearing unquestionably
        took place. [Trial counsel] participated throughout the
        entirety of the exclusionary hearing.      [Trial counsel]
        properly and vigorously submitted the sole Commonwealth
        suppression hearing witness to a full panoply of cross
        examination. [Trial counsel] provided [Appellant] proper
        counsel regarding the decision whether he would at his
        suppression hearing testify [sic]. [Trial counsel] in an
        effort to contradict the prosecution’s presented evidence
        elicited such testimony from [Appellant].      During the


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         Commonwealth’s cross examination of [Appellant], [trial
         counsel,] as he believed warranted, interspersed timely
         objections. Per his request, [trial counsel] in support of
         the suppression motion subsequently forwarded to the
         court for its consideration a Memorandum of Law. This
         Memorandum of Law lodged by [trial counsel] blatantly
         refutes [Appellant’s] claim on appeal that his counsel failed
         to file a brief following the Suppression Hearing.

                                      ***

            [Appellant’s] error assignment that [trial] counsel was
         in some unspecified manner ineffective during the course
         of the exclusionary litigation is without of-record factual
         support. This court’s dismissal of this collateral challenge
         to [trial counsel’s] stewardship was not legally erroneous.
         This assignment of error on appeal is without merit.

PCRA Court Opinion, 7/18/14, at 9-11 (citations omitted).

      Our review of the record supports the PCRA court’s conclusions. In his

pro se PCRA petition, Appellant claimed that trial counsel was ineffective for

failing to appeal the denial of his suppression motion.           PCRA Petition,

9/30/13, at 3. Because Appellant pled guilty, he waived his right to make

such a challenge. See, e.g., Commonwealth v. Monaco, 475 A.2d 843,

847 (Pa. Super. 1984) (explaining that entry of a guilty plea operates to

waive all non-jurisdictional defects and defenses). Moreover, although in his

appellate brief Appellant provides more specificity regarding trial counsel’s

perceived shortcomings with regard to the suppression motion, our review of

the record reveals that trial counsel argued the illegal entry by the police

during the suppression hearing.        Thus, even if not waived for lack of

specificity, the record refutes Appellant’s first claim of ineffectiveness.




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       In his second issue, Appellant asserts that trial counsel was ineffective

for failing to object to the sentence imposed by the trial court for his firearm

conviction.     According to Appellant, trial counsel should have objected

because the trial court failed to consider mitigating factors, and imposed a

sentence contrary to statements made by the trial court at sentencing. See

Appellant’s Brief at 3. A review of the record refutes Appellant’s assertion.

       In rejecting Appellant’s claim, the trial court found that Appellant’s

claim was “patently contradicted by the salient record and his imposed

sentences.” PCRA Court Opinion, 7/18/14, at 121. According to the PCRA

court:

              When imposing its sentence [for the firearms
          conviction], the court acknowledged of-record a literal
          litany of mitigating factors, including but not limited to the
          following:      [Appellant’s] age; [Appellant’s] medical
          circumstances; [d]ated nature of [Appellant’s] criminal
          history; [Appellant] being arrest and/or conviction free for
          the ten (10) years immediately preceding the incidents at
          bar; [w]eapon in question being unloaded; [s]earch of
          [Appellant’s] residence revealing no ammunition for this
          weapon; and [t]he absence of evidence that [Appellant]
          used and/or intended to employ the weapon criminally.
          Recognizing the wealth of mitigating circumstances the
          court acknowledged before imposing its sentences, it is
          exceedingly difficult, if not just highly improbable, that any
          such additional concerns were available to be so offered.
____________________________________________


1
  Initially, the PCRA court found Appellant’s discretionary sentencing claim to
be non-cognizable under the PCRA. See Trial Court Opinion, 7/18/14, at 11-
12. However, because Appellant couched his sentencing claim in terms of
the ineffective assistance of counsel, it is cognizable under the PCRA. See
Commonwealth v. Whitmore, 912 A.2d 827, 830 (Pa. 2006).




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          Certainly, [Appellant] by his PCRA motion as well as his
          statement of appellate complaints does not even aver a
          single mitigating factor that was not brought to the court’s
          attention and/or considered in its imposition of sentences.

                                          ***

             [For his firearm conviction], the sentence [trial counsel]
          secured for [Appellant] was not only within the applicable
          sentencing guidelines mitigated range, it was at the lower
          end of that paradigm. [Trial counsel] argued and obtained
          for [Appellant] a minimum sentence of incarceration one
          (1) to two (2) years less than that suggested by the
          guidelines’ standard range.

PCRA Court Opinion, 7/18/14, at 13-14 (citations omitted).2

       Once again, our review of the record supports the PCRA court’s

conclusions. Thus, trial counsel cannot be deemed ineffective for failing to

pursue Appellant’s meritless discretionary sentencing claim. Loner, supra.

       In support of his third issue regarding the restitution amount imposed

as part of his sentence for simple assault, Appellant essentially claims that

trial counsel was ineffective for failing to challenge the victim’s testimony

regarding the extent of her injuries.            After citing the relevant statutory

section, as well as case law requiring that the record support an award of

restitution, the PCRA court concluded:

             [Appellant’s] assignment of error questioning [trial
          counsel’s] failure to challenge the restitution is misfounded
          [sic].  [Trial counsel] did question the validity of the
____________________________________________


2
   While the trial court addressed the sentence imposed at each docket, it is
clear from Appellant’s brief that he only challenges his sentence for the
firearm conviction.




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        restitution amount sought. [Trial counsel] raised concerns
        with the court about the restitution amounts requested by
        the prosecution on its victim’s behalf and the lack of bills
        presented to him. Simply because the court chose to
        reject [trial counsel’s] advanced concerns and arguments
        salient to the restitution it directed as part of [Appellant’s]
        sentence[], does not establish [trial] counsel’s stewardship
        of [Appellant’s] interests was ineffective otherwise every
        contested ruling adverse to the defense would be grounds
        for [a PCRA] remedy.

PCRA Court Opinion, 7/18/14, at 18 (citations omitted).

     We agree with the PCRA court’s conclusion that the amount of

restitution ordered as part of Appellant’s sentence for simple assault is

supported by the evidence presented by the Commonwealth at the

sentencing hearing. See generally, 18 Pa.C.S.A. § 1106. Thus, Appellant’s

claim that trial counsel was ineffective for failing to pursue this meritless

claim fails. Loner, supra.

     In his final issue, Appellant challenges the validity of his guilty plea

which resulted in his firearm conviction.    Appellant asserts, “[i]t was bad

enough that [trial counsel] was ineffective in his representation of [him]

during the Suppression of Evidence Hearing, but then compounded his

inadequate representation by coercing Appellant into pleading guilty to the

Possession of Firearms charge.”      Appellant’s Brief at 21.     According to

Appellant, [trial counsel] convinced [him] that since he lost the Suppression

of Evidence Hearing, his only option was to plead guilty.”      Id.   Appellant

further avers that he did not want to plead guilty, “but [trial counsel] told

him that he would no longer represent him” if he chose to go to trial. Id. at


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22. Thus, because Appellant believed that he was “given the option of either

pleading guilty or [] proceeding on his own,” he asserts that he involuntarily

chose the former. Id. at 23.

      In rejecting Appellant’s claim, the PCRA court first noted that the issue

should be deemed waived because of Appellant’s lack of specificity regarding

this claim in his Pa.R.A.P. 1925(b) statement.     See PCRA Court Opinion,

7/18/14, at 20.    Absent waiver, the PCRA court opined that Appellant’s

ineffectiveness claim relating to the validity of his guilty plea was “without

merit as a review of the salient records reveals no factual or legal support

for the contention that [Appellant’s plea] of guilty [was] anything other than

knowing, voluntarily, and intelligently offered and properly accepted as such

by this court.” Id. We agree.

      This Court has stated:

            Because a plea of guilty effectively waives all non-
        jurisdictional defects and defenses, after sentencing,
        allegations of ineffectiveness of counsel in this context
        provide a basis for withdrawal of the plea only where there
        is a causal nexus between counsel’s ineffectiveness, if any,
        and an unknowing or involuntary plea. The guilty plea
        hearing becomes the significant procedure under scrutiny.
        The focus of the inquiry is whether the accused was misled
        or misinformed and acted under that misguided influence
        when entering the guilty plea.

Commonwealth v. Flood, 627 A.2d 1193, 1199 (Pa. Super. 1993)

(citations omitted).

      Additionally, this Court has summarized:




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        Our law presumes that a defendant who enters a guilty plea
        was aware of what he was doing. He bears the burden of
        proving otherwise.

                            *       *        *

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

                            *       *        *

        [A] defendant who elects to plead guilty has a duty to
        answer questions truthfully.     We [cannot] permit a
        defendant to postpone the final disposition of his case by
        lying to the court and later alleging that his lies were
        induced by the prompting of counsel.

Commonwealth v. Pollard, 832 A.2d 517, 523-24 (Pa. Super. 2003)

(citations omitted).

      After thoroughly reviewing the written and oral guilty plea colloquies

that occurred in this case, the PCRA court concluded:

             Based on a review of the records at bar, [Appellant] has
         failed to adequately demonstrate that either of his pleas of
         guilty resulted from “coercion” of [trial counsel] and/or
         some other impermissible inducement of any type
         whatsoever.     Rather than being the product of [trial
         counsel’s] bullying compulsion, [Appellant] when so asked
         explicitly requested that the court accept his guilty pleas.
         While under oath at the time he entered his pleas of guilty,
         [Appellant] acknowledged his complete review and
         understanding of the comprehensive, written guilty plea
         statements, including the representations that he “. . . had
         not been pressured, forced or threatened in any way by
         anyone to plead guilty . . . and [had] not been promised

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         anything by anyone[.]”          [Appellant’s] contradictory
         assertions offered via his [PCRA] motion are without merit.

PCRA Court Opinion, 7/18/14, at 32 (citations and emphasis omitted).

      The PCRA court’s conclusions are amply supported by the record. As

noted by the PCRA court, Appellant’s answers to the court’s questions during

the oral plea colloquy, as well as those provided in the written colloquy,

contradict Appellant’s present claims.          See Pollard, supra.      Thus,

Appellant’s final claim of trial counsel’s ineffectiveness fails.

      In sum, the PCRA court properly concluded that Appellant did not meet

his burden of establishing any of his ineffective assistance of counsel claims.

We therefore affirm the PCRA court’s order denying Appellant post-

conviction relief.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/8/2014




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