J-S06027-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                            Appellee

                       v.

CHARLES BEATTY

                            Appellant                    No. 463 EDA 2014


                Appeal from the PCRA Order September 30, 2013
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0009500-2009


BEFORE: BENDER, P.J.E., LAZARUS, J., and FITZGERALD, J.*

MEMORANDUM BY LAZARUS, J.:                              FILED MARCH 26, 2015

        Charles Beatty appeals from the order of the Court of Common Pleas

of Philadelphia County dismissing his petition brought pursuant to the Post

Conviction Relief Act (“PCRA”).1 Upon review, we affirm.

        This matter arises from an altercation in which Beatty physically

assaulted and burglarized the victim and her friend.           On June 3, 2010,

Beatty appeared before the Honorable Earl E. Trent, Jr., and entered a

negotiated guilty plea to burglary, theft, possession of an instrument of

crime, and simple assault.         N.T. Guilty Plea Colloquy, 6/3/10, at 4-8, 10.



____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
    42 Pa.C.S. §§ 9541-9546.
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The court sentenced Beatty to an aggregate term of two to four years’

incarceration, to be followed by five years’ probation.

      On March 3, 2011, Beatty filed a pro se PCRA petition.       Appointed

counsel filed an amended petition, challenging the voluntariness of Beatty’s

guilty plea. The PCRA court dismissed Beatty’s petition on September 30,

2013. Beatty did not appeal.

      On December 20, 2014, Beatty filed a second PCRA petition,

challenging the effectiveness of PCRA counsel for failing to file an appeal.

On January 27, 2014, the PCRA court granted the petition and reinstated

Beatty’s right to appeal the denial of his first PCRA petition nunc pro tunc.

This timely appeal followed.

      On appeal, Beatty raises the ineffectiveness of his trial counsel.

Specifically, Beatty claims that counsel failed to explain the impact of a

guilty plea on his probation status. We note, however, that Beatty provides

no evidence he is on probation or that his guilty plea resulted in a probation

violation causing his probation to be revoked.

      When reviewing an appeal from the denial of PCRA relief, an appellate

court “consider[s] whether the post-conviction court’s findings are supported

by the record and are free from legal error.” Commonwealth v. Riga, 70

A.3d 777, 780 (Pa. 2013). To be eligible for relief under the PCRA, Beatty

must prove by a preponderance of the evidence that his conviction resulted

from “ineffective assistance of counsel which, in the circumstances of the

particular case, so undermined the truth-determining process that no

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reliable adjudication of guilt or innocence could have taken place.”                  42

Pa.C.S. § 9543(a)(2)(ii).          “Counsel is presumed to be effective and the

burden       of       demonstrating     ineffectiveness      rests       on   appellant.”

Commonwealth v. Ousley, 21 A.3d 1238, 1244 (Pa. Super. 2011).                        “In

order to succeed on an ineffectiveness of counsel claim, ‘appellant must

establish that the underlying claim is of arguable merit, counsel’s course of

action lacked any reasonable basis for advancing his client’s interests, and

appellant has suffered prejudice as a result.’” Commonwealth v. Prince,

719 A.2d 1086, 1089 (Pa. Super. 1998) (citing Commonwealth v. Griffin,

644 A.2d 1167, 1172 (Pa. 1994)).              “If appellant can prove that counsel

misinformed him about the consequences of his plea, the claim would have

arguable merit.”           Commonwealth v. Lippert, 85 A.3d 1095, 1101 (Pa.

Super. 2014).

     Here, Beatty signed a written colloquy form that specifically stated,

     The guilty plea may violate my probation or parole. Therefore,
     in addition to my sentence in this case, I can get more time in
     jail for a violation of my probation or parole. [ . . .] The
     sentence on this guilty plea may not run concurrent to a state
     sentence for a parole violation.

Written Guilty Plea Colloquy, 6/3/10.               Additionally, at trial, counsel

conducted a thorough oral colloquy confirming that Beatty had reviewed the

form with counsel several times – in prison and at the courthouse

immediately prior to trial – and that counsel had answered all of Beatty’s

questions regarding pleading guilty.           A defendant may not obtain post-

conviction        relief   “by   asserting   that   he    lied   while    under   oath.”

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

Because Beatty testified under oath that he had reviewed the form, which

outlined the probation implications of his plea, he may not now contradict his

sworn testimony in order to obtain relief.

      Furthermore, counsel cannot be deemed ineffective in the case sub

judice because she had no duty to inform Beatty of the collateral

consequences of his plea. Commonwealth v. Barndt, 74 A.3d 185, 195-

96   (Pa. Super.    2013) (“Counsel’s    omission   to   mention   a collateral

consequence of a guilty plea does not constitute ineffective assistance of

counsel.” “The prospect of probation revocation as a consequence of a given

plea is a collateral consequence of that plea.”). Accordingly, Beatty’s claim

is meritless and we deny him relief.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/26/2015




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