J-S80030-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                         IN THE SUPERIOR COURT OF
                                                           PENNSYLVANIA
                           Appellee

                      v.

JAMES WALTER ZERBY, III

                           Appellant                      No. 283 MDA 2016


            Appeal from the PCRA Order entered January 19, 2016
              In the Court of Common Pleas of Luzerne County
              Criminal Division at No: CP-40-CR-0003196-2012


BEFORE: LAZARUS, STABILE, and RANSOM, JJ.

MEMORANDUM BY STABILE, J.:                           FILED FEBRUARY 27, 2017

       Appellant, James Walter Zerby, III, appeals from the January 19, 2016

order entered in the Court of Common Pleas of Luzerne County, denying his

petition for collateral relief pursuant to the Post Conviction Relief Act (PCRA),

42 Pa.C.S.A. §§ 9541-9546. Upon review, we affirm.

       Following an investigation, Appellant was charged with unlawful

contact with a minor, involuntary deviate sexual intercourse, aggravated

indecent assault, and corruption of minors. On January 3, 2013, Appellant

pled   guilty   to   unlawful   contact   with   a   minor.   In   exchange,   the

Commonwealth withdrew all other charges against Appellant. At the time of

the plea, Appellant was represented by the Luzerne County Public Defender’s

Office. Prior to sentencing, Appellant retained private counsel, Tony Moses,
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Esquire.   On June 13, 2013, the trial court granted Appellant’s motion to

withdraw his guilty plea.

      On September 25, 2013, Appellant entered a no contest plea to the

unlawful contact with minors charge.       On the same day, based on an

agreement between the parties, the trial court sentenced Appellant to three

years to ten years’ incarceration.

      On March 10, 2014, the trial court held a Sexual Violent Predator

(SVP) hearing. On April 22, 2014, before the record of the SVP hearing was

closed, the trial court removed Attorney Moses from the case in light of his

suspension from the practice of law. The trial court reappointed the Luzerne

County Public Defender’s Office to represent Appellant.       After granting

several continuance requests, on October 15, 2014, the trial court

adjudicated Appellant an SVP.

      Appellant filed a direct appeal with this Court, challenging his SVP

adjudication.    See Commonwealth v. Zerby, No. 68              MDA 2015,

unpublished memorandum at 2 (Pa. Super. filed September 9, 2015). Upon

review, we affirmed the judgment of sentence. Id.

      Appellant timely filed a PCRA petition, challenging his no contest plea

counsel’s effectiveness.    After holding a hearing, the PCRA court denied

Appellant’s PCRA petition. This appeal followed.

       On appeal, Appellant argues his no contest plea was the result of

counsel’s ineffectiveness. Specifically, Appellant argues he was compelled to


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enter a no contest plea because his plea counsel was not prepared for trial.

Additionally, Appellant argues counsel did not adequately discuss with him

his trial strategy and/or defenses.       Finally, Appellant argues counsel’s

appearance and demeanor also affected his decision to take the plea. Upon

review, we conclude no relief is due.

      This Court recently reiterated the standard of review from the denial of

PCRA relief as follows:

      “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 supported by the record and without legal
      error.” Commonwealth v. Edmiston, 65 A.3d 339, 345 (Pa.
      2013) (citation omitted). “[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.” Commonwealth v. Koehler, 614 Pa. 159, 36 A.3d 121,
      131 (2012) (citation omitted). “The PCRA court’s credibility
      determinations, when supported by the record, are binding on
      this Court.” Commonwealth v. Spotz, 610 Pa. 17, 18 A.3d
      244, 259 (2011) (citation omitted). “However, this Court applies
      a de novo standard of review to the PCRA court’s legal
      conclusions.” Id.

Commonwealth v. Medina, 92 A.3d 1210, 1214-15 (Pa. Super. 2014) (en

banc).

      This Court also recently summarized the three-pronged test applied

when determining ineffectiveness of counsel.

      As originally established by the United States Supreme Court in
      Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80
      L.Ed.2d 674 (1984), and adopted by Pennsylvania appellate
      courts, counsel is presumed to have provided effective
      representation unless a PCRA petitioner pleads and proves all of
      the following: (1) the underlying legal claim is of arguable merit;
      (2) counsel’s action or inaction lacked any objectively reasonable

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     basis designed to effectuate his client’s interest; and (3)
     prejudice, to the effect that there was a reasonable probability of
     a different outcome . . . if not for counsel’s error.

Commonwealth v. Wantz, 84 A.3d 324, 331 (Pa. Super. 2014) (citations

omitted).

     The record belies Appellant’s claim of ineffective assistance of counsel.

“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.” Commonwealth v. Pollard, 832

A.2d 517, 523 (Pa. Super. 2003) (citation omitted).     If a person elects to

plead guilty, “he is bound by the statements he makes in open court while

under oath and he may not later assert grounds for [challenging the validity

of plea] which contradict the statements he made at his plea colloquy.” Id.

(citation omitted). Here, at the time of plea, Appellant voiced no concerns

regarding plea counsel’s preparation, fitness, or demeanor.           Indeed,

Appellant stated that he had not been forced to plea and that he was

satisfied with his counsel. See PCRA Court Opinion, 1/19/16, at 7. Thus,

Appellant’s claim that counsel’s actions or inactions induced him into

entering the no contest plea lacks arguable merit.




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       Appellant also failed to show he suffered prejudice from counsel’s

conduct. Concerning the prejudice prong of the Strickland test,1 this Court

has stated:

       To succeed in showing prejudice, the defendant must show that
       it is reasonably probable that, but for counsel’s errors, he would
       not have pleaded guilty and would have gone to trial. Hill [v.
       Lockhart, 474 U.S. 52, 59 (1985)].               The “reasonable
       probability” test is not a stringent one. See Nix v. Whiteside,
       475 U.S. 157, 175, 106 S.Ct. 988, 89 L.Ed.2d 123 (1986)
       (reasonable     probability   standard   less   demanding     than
       preponderance standard).

Commonwealth v. Hickman, 799 A.2d 136, 141 (Pa. Super. 2002).

       Appellant failed to produce any evidence at the hearing addressing the

prejudice prong of the standard. Indeed, the PCRA court noted that:

       Although [Appellant] testified about [plea counsel]’s failure to
       adequately consult with him prior to the scheduled trial, he
       never testified about any effect his counsel’s failure to contact
       him had. For example, there was no testimony that, had there
       been a trial, the outcome would have been different. Nor did
       [Appellant] testify regarding evidence which may have supported
       his innocence that [plea counsel] failed to investigate. Indeed,
       [Appellant] failed to show that, had [plea counsel] acted
       differently, he would not have entered the plea of nolo
       contendere and would have proceeded with the trial. Instead,
       the record reflects that [Appellant] chose to accept the plea
       agreement in exchange for the Commonwealth dropping the
       other charges pending against him.

____________________________________________


1
  We need not address all prongs of the Strickland standard. As long as
one the three prongs has not been met, there cannot be a finding of
ineffective assistance of counsel. See, e.g., Commonwealth v. Thomas,
44 A.3d 12, 17 (Pa. 2012) (stating that a failure to satisfy any of the three
prongs of the ineffectiveness test requires rejection of an ineffective
assistance of trial counsel claim).



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PCRA Court Opinion, 1/19/16, at 7.             Upon review of the record, we agree

with the PCRA court’s analysis and conclusions.

       Similarly, in his brief to this Court, Appellant does not specifically

discuss    the     prejudice     he    suffered    from    plea   counsel’s     alleged

ineffectiveness.2       Indeed, nowhere did Appellant explain what strategy

counsel failed to employ, or what defense counsel failed to raise or pursue.

Additionally, nowhere did Appellant state he would have faced a trial on the

original charges of involuntary deviate sexual intercourse, aggravated

indecent assault, indecent assault, and corruption of minors, rather than

take a no contest plea to unlawful contact with a minor but for counsel’s

fitness, demeanor, appearance, or preparation.               In the end, Appellant

merely    offers    a   bald,   unsubstantiated,     and    unarticulated     claim   of

ineffectiveness, for which no relief is due.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/27/2017

____________________________________________


2
  More precisely, in his brief, Appellant did not specifically mention or
analyze any prong of the ineffectiveness standard.



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