J-S38028-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

HAGGON A. WAITE,

                            Appellant                 No. 1721 EDA 2016


                   Appeal from the PCRA Order May 26, 2016
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0016396-2008


BEFORE: GANTMAN, P.J., SHOGAN and FITZGERALD,* JJ.

MEMORANDUM BY SHOGAN, J.:                               FILED JULY 18, 2017

       Haggon A. Waite (“Appellant”) appeals from the May 26, 2016 order

denying his petition for collateral relief filed pursuant to the Post Conviction

Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541–9546. We affirm.

       The PCRA court set forth the background of this case in its opinion to

this Court.

             On June 19, 2008, [Appellant] was arrested and charged
       with inter alia[:] 1) Possession of an Instrument of Crime; 2)
       Carrying a Firearm without a License; and, 3) Carrying a Firearm
       in Public in Philadelphia.1 On August 14, 2012, [Appellant]
       entered a negotiated plea of guilty to those charges.[1] The [trial

____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
   In exchange for Appellant’s guilty plea, the Commonwealth nol prossed
four charges: criminal use of a communication facility, criminal conspiracy,
(Footnote Continued Next Page)
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      c]ourt proceeded to sentence [Appellant] that day in accordance
      with his negotiated guilty plea agreement, to one and [one] half
      years to six years confinement in a State Correctional Facility.
      [Appellant did not file a direct appeal.]
             1
               18 Pa.C.S.A. 907(a); 18 Pa.C.S.A. 6106(a)(1); 18
             Pa.C.S.A. 6108

             On January 22, 2013, [Appellant] filed a pro se PCRA
      petition pursuant to 42 Pa.C.S.A. §9541 et. seq. On December
      4, 2013, Peter Alan Levin, Esq. was appointed as PCRA counsel.
      On January 7, 2015, PCRA counsel filed an amended petition
      which mirrored [Appellant’s] initial complaints. On February 11,
      2016, the Commonwealth filed a Motion to Dismiss [Appellant’s]
      amended PCRA petition. On April 14, 2016, this Court gave
      notice of its intention to dismiss [Appellant’s] amended PCRA
      petition, pursuant to Pennsylvania Rule of Criminal Procedure
      907. On May 26, 2016, [Appellant’s] amended PCRA petition
      was dismissed by the [c]ourt.

PCRA Court Opinion, 9/28/16, at 1–2. This appeal followed. Appellant and

the trial court complied with Pa.R.A.P. 1925.

      On appeal, Appellant presents the following questions for our review:

      I.     Whether the court erred in not granting relief on the PCRA
             petition alleging counsel was ineffective.

      II.    Whether the court erred in denying the Appellant’s PCRA
             petition without an evidentiary hearing on the issues raised
             in the amended PCRA petition regarding trial counsel’s
             ineffectiveness.

Appellant’s Brief at 8 (reordered for ease of disposition).

      When reviewing the propriety of an order denying PCRA relief,

this Court is limited to determining whether the evidence of record supports
                       _______________________
(Footnote Continued)

possession with intent to deliver marijuana, and possession of a controlled
substance. Commonwealth’s Motion to Dismiss, 2/11/16, at 1.



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the conclusions of the PCRA court and whether the ruling is free of

legal error. Commonwealth v. Robinson, 139 A.3d 178, 185 (Pa. 2016).

The PCRA court’s findings will not be disturbed unless there is no support for

them in the certified record.        Commonwealth v. Lippert, 85 A.3d 1095,

1100 (Pa. Super. 2014).

       Appellant claims he received ineffective assistance of counsel (“IAC”).

In resolving questions of counsel’s effectiveness, we begin with the

presumption that counsel rendered effective assistance.      Commonwealth

v. Bomar, 104 A.3d 1179, 1188 (Pa. 2014).                 To overcome that

presumption, the petitioner must establish: “(1) the underlying claim has

arguable merit; (2) no reasonable basis existed for counsel’s action or failure

to act; and (3) the petitioner suffered prejudice as a result of counsel’s

error, with prejudice measured by whether there is a reasonable probability

that the result of the proceeding would have been different.” Id. (citation

omitted). If the petitioner fails to prove any of these prongs, the

claim is subject to dismissal. Id.

       Appellant asserts:2


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2
     To the extent Appellant directly challenges the denial of his pretrial
motions and the adequacy of the trial court’s plea colloquy, we decline to
review his arguments because they are outside the scope of the IAC claim
raised in Appellant’s PCRA petition. Appellant’s Brief at 15–19; 42 Pa.C.S. §
9543(a)(2)(i–viii).




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       [T]rial counsel’s ineffectiveness and coercive actions played a
       large role in the unlawful inducement of the Appellant’s guilty
       plea. Counsel never insured that Appellant was given a proper
       colloquy prior to entering the plea concerning not being able to
       appeal the suppression motion or to bring up the violation of the
       speedy trial rule.

Appellant’s Brief at 20.3           Appellant further claims, “[T]here was no

reasonable basis to justify any type of inducement or coercive nature on the

part of trial counsel to insist that the Appellant plead guilty where the

pretrial rulings could have been successfully appealed.”           Id.    Lastly,

Appellant contends, “[T]here is a clear showing of actual prejudice. . . . Had

the Appellant been able to try the matter before the jury, a decision of

innocence may have been arguably been [sic] found[.]” Id.

       After reviewing the relevant law, the PCRA court disposed of

Appellant’s IAC claim as follows:

              [Appellant] essentially argues that his guilty pleas were
       unlawfully induced because trial counsel was ineffective in
       apprising him of certain appellate rights he was waiving in
       pleading guilty. The crux of [Appellant’s] argument regarding
       this claim is that his counsel failed to properly advise him that he
       would lose the right to appeal pre-trial rulings, and as such acted
       to unlawfully induce [Appellant’s] guilty pleas. This claim is
       without merit as these rights were made clear to [Appellant]
       during the colloquy process.

____________________________________________


3
    We note that Appellant’s suppression-based argument was not raised in
his pro se or counseled PCRA petitions. Therefore, it is waived. See
Commonwealth v. Reid, 99 A.3d 470, 494 (Pa. 2014) (citing
Commonwealth v. Santiago, 855 A.2d 682, 691 (Pa. 2004) (claim not
raised in PCRA petition cannot be raised for the first time on appeal, and is
“indisputably waived”)).



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             [Appellant’s] Written Guilty Plea Colloquy clearly states “If
      I already had a hearing on pre-trial motions, when I plead guilty,
      I give up my right to appeal the decisions on those motions.” At
      the bottom of the written colloquy, it reads “I have read all of
      the above, or my lawyer read it to me. I understand it. My
      answers are all true and correct.”           [Appellant] had ample
      opportunity to review the document with counsel before signing
      it, and did, in fact, sign it after such a review. (N.T., 8/14/2012
      pg. 3–4).      The [c]ourt also afforded [Appellant] sufficient
      opportunity to ask any questions, either to the [c]ourt or to his
      counsel, if any areas of his negotiated guilty plea were unclear or
      not understood. (N.T., 8/14/2012 pg. 11–12)

            . . . [R]eviewing courts analyze the validity of a guilty plea
      by the totality of its circumstances. In using this standard, it is
      clear that [Appellant’s] negotiated guilty plea was entered into
      knowingly, intelligently, and voluntarily. Prior to accepting his
      pleas, the [c]ourt explained [Appellant’s] remaining appellate
      rights, stating that he would “lose some, but not all” of his
      appellate rights.

                                    * * *

      Indeed, all of the elements required during the colloquy process
      were present at [Appellant’s] Negotiated Guilty Plea Hearing.
      (N.T., 8/14/2012 pg. 4, 13, 17) Prior to accepting his negotiated
      pleas, the [c]ourt asked [Appellant] if there was anything
      explained to him which he did not understand, or if he had any
      questions for the [c]ourt, to which [Appellant] replied “No, Your
      Honor.” The [c]ourt asked [Appellant] if he had any questions
      for defense counsel, to which [Appellant] replied, “Nothing, Your
      Honor.”    The [c]ourt concluded that [Appellant] had “made
      knowing, intelligent, voluntary pleas of guilty.” (N.T., 8/14/2012
      pg. 11–12) [Appellant] was not threatened or convinced to
      enter his guilty plea, and he did so with a full understanding of
      its consequences.       (N.T., 8/14/2012 pg. 4, 8–9)          Thus,
      [Appellant] knowingly, intelligently, and voluntarily entered into
      his negotiated guilty pleas.

Trial Court Opinion, 9/28/16, at 5–7.

      Our review of the certified record reveals that it includes Appellant’s

written guilty plea colloquy in which he affirmed that, by pleading guilty, he

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was giving up his speedy trial right. Written Guilty Plea Colloquy, 8/14/12,

at 2. However, the certified record does not include the notes of testimony

from Appellant’s guilty plea hearing. It is the responsibility of Appellant to

ensure all necessary transcripts are included in the certified record.      See

Pa.R.A.P. 1911(a) (“The appellant shall request any transcript required

under this chapter . . .”).   Without those notes, we are unable to review

whether the trial court provided Appellant with an adequate colloquy

regarding the waiver of his rights.    See Commonwealth v. Houck, 102

A.3d 443, 456–457 (Pa. Super. 2014) (instructing where appellant has not

made transcript of proceedings at issue part of certified record, any claims

that cannot be resolved in absence of necessary transcript must be deemed

waived).   Thus, we agree with the PCRA court that Appellant’s underlying

argument—that trial counsel was ineffective for failing to advise Appellant

regarding the waiver of his rights—lacks merit.

      Additionally, Appellant challenges the denial of his request for an

evidentiary hearing. We repeat:

      [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. Miller, 102 A.3d 988, 992 (Pa. Super. 2014) (citation

omitted).

      The sole claim Appellant raised in his pro se and amended PCRA

petitions was trial counsel’s ineffectiveness in failing to advise Appellant that,

by pleading guilty, he waived his right to challenge the speedy trial rule.

Motion for Post Conviction Collateral Relief, 1/22/13, at ¶¶ 4, 5; Amended

Petition, 1/7/16, at ¶¶ 8–9. Upon review of the record, we agree with the

PCRA court that Appellant’s claim has no support either in the record or

other evidence; therefore, there are no genuine issues of material fact in

controversy. Miller, 102 A.3d at 992. Consequently, we discern no abuse

of the PCRA court’s discretion in denying Appellant relief without conducting

an evidentiary hearing.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/18/2017




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