J-S57019-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                 IN THE SUPERIOR COURT OF
                                                   PENNSYLVANIA
                        Appellee

                   v.

STANLEY K. JOHNSON

                        Appellant                 No. 3228 EDA 2013


               Appeal from the PCRA Order October 30, 2013
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0011626-2009


BEFORE: DONOHUE, J., MUNDY, J., and STABILE, J.

MEMORANDUM BY MUNDY, J.:                      FILED OCTOBER 27, 2014

      Appellant, Stanley K. Johnson, appeals from the October 30, 2013

order dismissing, without a hearing, his amended petition for relief filed

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

9546. After careful review, we affirm.

      The PCRA court summarized the procedural background of this case as

follows.

                 On January 21, 2011, before [the trial] court,
           [Appellant] plead[ed] guilty on CP-51-CR-0011626-
           2009 for the following charges: Rape by Forcible
           Entry, [] Involuntary Deviate Sexual Intercourse by
           Forcible Compulsion, [] Unlawful Contact with a
           Minor (Relating to Sexual Offenses), [] Incest, []
           Endangering Welfare of Children (Parent/Guardian),
           [] and Simple Assault Against a Child Under 12 Years
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              of Age by an Adult over 21 Years of Age, [].[1] At the
              time [Appellant] plead[ed] guilty, the court gave
              [Appellant] a below the guideline sentence of 120
              months[’] probation for the crime of Incest.
              Sentencing for the remaining crimes was deferred
              pending a presentence investigation report and a
              Megan’s Law assessment.

                    On April 29, 2011, [the trial] court, equipped
              with an assessment from the Pennsylvania Sexual
              Offenders Assessment Board, found [Appellant] to be
              a sexually violent predator. On September 16, 2011,
              [the trial] court sentenced [Appellant] to a guideline
              sentence of 7 to 16 years[’] incarceration followed by
              180 months[’] probation for the crime of Rape; an
              above the guideline sentence of 7 to 16 years[’]
              incarceration followed by 180 months[’] probation
              for the crime of Involuntary Deviate Sexual
              Intercourse; a below the guideline sentence of 180
              months[’] probation for the crime of Unlawful
              Contact with a Minor; a below the guideline sentence
              of 84 months[’] probation for the crime of
              Endangering the Welfare of Children; and a guideline
              sentence of 60 months[’] probation for the crime [of]
              Simple Assault against a Child. The court ordered
              the two incarceration sentences to run concurrently
              to each other and all probation sentences to run
              consecutive to these incarceration sentences. All
              probation     sentences   were     ordered     to  run
              concurrently to each other.

                    On November 17, 2011, [Appellant] filed a pro
              se [PCRA] Petition. On February 2, 2012, Elayne
              Bryn, Esq. was appointed to represent [Appellant].
              On October 25, 2012, Ms. Bryn filed an Amended
              PCRA Petition on [Appellant’s] behalf. On March 15,
              2013, the Commonwealth filed a Motion to Dismiss
              [Appellant’s] PCRA Petition.     On September 27,
              2013, the [PCRA] court filed a Rule 907 Notice as the
              [PCRA] court had determined that the issues raised
____________________________________________
1
 18 Pa.C.S.A. §§ 3121(a)(1), 3123(a)(1), 6318(a)(1), 4302, 4304(a), and
2701(b)(2), respectively.


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              in the Amended PCRA Petition were without merit.
              On October 30, 2013, [the PCRA] court dismissed
              [Appellant’s] PCRA Petition. [2]

Trial Court Opinion, 1/15/14, at 1-3 (footnote omitted).

       On appeal, Appellant raises the following issue for our review.

              I.     [Was] Trial counsel [] ineffective for failing to
                     raise [A]ppellant’s Rule 600 motion before the
                     trial court[?] [Was] Appellant [] entitled to a
                     dismissal of the charges against him because
                     he was brought to trial after 365 days had
                     expired[?]

Appellant’s Brief at 3.

       We note the following principles, which guide our consideration of an

appeal from the denial of PCRA relief.

              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.
              [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.      The PCRA court’s credibility
              determinations, when supported by the record, are
              binding on this Court. However, this Court applies a
              de novo standard of review to the PCRA court’s legal
              conclusions.

Commonwealth v. Medina, 92 A.3d 1210, 1214-1215 (Pa. Super. 2014)

(en banc) (internal quotation marks and citations omitted). Further, in order
____________________________________________
2
  Appellant and the PCRA court have complied with Pennsylvania Rule of
Appellate Procedure 1925.      After filing his initial timely Rule 1925(b)
statement, the trial court granted Appellant extensions to file an amended
concise statement, if necessary, upon receipt and review of the entire record
by counsel. No amended statement was filed.


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to be eligible for PCRA relief, a petitioner must plead and prove by a

preponderance of the evidence that his conviction or sentence arose from

one or more of the errors listed at 42 Pa.C.S.A. § 9543(a)(2). These issues

must be neither previously litigated nor waived. Id. § 9543(a)(3).

     In this case, the PCRA court dismissed Appellant’s PCRA petition

without conducting a hearing.

                 [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.

Commonwealth v. Wah, 42 A.3d 335, 338 (Pa. Super. 2012), quoting

Commonwealth v. Turetsky, 925 A.2d 876, 882 (Pa. Super. 2007)

(internal citations omitted), appeal denied, 940 A.2d 365 (Pa. 2007); see

also Pa.R.Crim.P. 907.   “We   stress that an evidentiary hearing is not meant

to function as a fishing expedition for any possible evidence that may

support some speculative claim of ineffectiveness.”      Commonwealth v.

Roney, 79 A.3d 595, 604-605 (Pa. 2013) (internal quotation marks and

citation omitted). We review a PCRA court’s decision to dismiss without a

hearing for abuse of discretion. Id. at 604.




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      Appellant alleges ineffectiveness of trial counsel.   When reviewing a

claim of ineffective assistance of counsel, we apply the following test, first

articulated by our Supreme Court in Commonwealth v. Pierce, 527 A.2d

973 (Pa. 1987).

                  When considering such a claim, courts
            presume that counsel was effective, and place upon
            the appellant the burden of proving otherwise.
            Counsel cannot be found ineffective for failure to
            assert a baseless claim.

                   To succeed on a claim that counsel was
            ineffective, Appellant must demonstrate that: (1) the
            claim is of arguable merit; (2) counsel had no
            reasonable strategic basis for his or her action or
            inaction; and (3) counsel’s ineffectiveness prejudiced
            him.

                                      …

                 [T]o demonstrate prejudice, appellant must
            show there is a reasonable probability that, but for
            counsel’s error, the outcome of the proceeding would
            have been different.

Commonwealth v. Michaud, 70 A.3d 862, 867 (Pa. Super. 2013) (internal

quotation marks and citations omitted). “Failure to establish any prong of

the test will defeat an ineffectiveness claim.”         Commonwealth v.

Birdsong, 24 A.3d 319, 330 (Pa. 2011).

      Appellant’s specific claim is that his trial counsel was ineffective for

failing to seek dismissal of the charges pursuant to Pennsylvania Rule of




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Criminal Procedure 600 prior to the entry of his guilty plea.3              Appellant’s

Brief at 11.

               Counsel failed to obtain a determination of the Rule
               600 issue and [A]ppellant suffered prejudice because
               the remedy for the speedy trial issue was the
               dismissal of the charges against him. Appellant was
               entitled to a dismissal of the charges against him
               because he was brought to trial after 365 days had
               expired.

____________________________________________
3
  Appellant indicated in his PCRA petition, and in his statement-of-the-case
portion of his appellate brief, that he filed a pro se motion for dismissal
based on Rule 600 on December 29, 2010, which was never ruled on by the
trial court. Appellant’s Brief at 4; Amended PCRA Petition, 10/25/12, at 3, ¶
10. While the filing of the pro se Rule 600 motion is indicated in the docket,
there is no indication the pro se motion was forwarded to counsel pursuant
to Pa.R.Crim.P. 576(A)(4) (providing for docketing of pro se filings by
represented defendants and directing the clerk of courts to forward a time-
stamped copy of the filing to the Commonwealth and defense counsel). We
also note that, apart from the guilty plea hearing transcript, no documents
from the trial court record that predate the filing of Appellant’s November
18, 2011 pro se PCRA petition, including Appellant’s pro se motion, have
been included in the record certified to this Court.

               It is black letter law in this jurisdiction that an
               appellate court cannot consider anything which is not
               part of the record in the case. It is also well-settled
               in this jurisdiction that it is Appellant’s responsibility
               to supply this Court with a complete record for
               purposes of review.        A failure by [A]ppellant to
               insure that the original record certified for appeal
               contains sufficient information to conduct a proper
               review constitutes waiver of the issue sought to be
               examined.

Commonwealth v. Martz, 926 A.2d 514, 524-525 (Pa. Super. 2007)
(internal quotation marks and citations omitted), appeal denied, 940 A.2d
363 (Pa. 2008).




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Appellant’s Brief at 22.

       As noted above, Appellant entered a guilty plea to the charges in this

matter. At his guilty plea hearing, the trial court advised Appellant that, by

pleading guilty, he gave up all of his rights and challenges except issues

pertaining to the jurisdiction of the court, the voluntariness of his plea, and

the   legality   of   his   sentence.      N.T.,   1/21/11,   at   9-10.   Appellant

acknowledged his understanding, and upon further colloquy, the trial court

stated it was “satisfied … that [Appellant] has made a knowing, intelligent

and voluntary plea of guilty.”4 Id. at 12.

       Critical to this appeal, Appellant did not allege in his amended PCRA

petition or in his Rule 1925(b) statement that his plea was not knowing

intelligent and voluntary, or that he was in any way induced to enter his

guilty plea and waive his speedy trial rights as a result of counsel’s alleged

deficient representation. This is fatal to his claim.

                    A plea of guilty effectively waives all
              nonjurisdictional defects and defenses. As such, this
              Court has unequivocably [sic] held that an alleged
              irregularity in proceedings prior to a plea of guilty,
              including an alleged violation of Rule 1100, [now
              Rule 600,] would be reviewable to the extent that it
              affected the voluntariness of the guilty plea itself.
              Accordingly, although a violation of Rule 1100 would
____________________________________________
4
  The PCRA court also notes that Appellant signed a written guilty plea
colloquy wherein Appellant acknowledged that by pleading guilty he was
“[giving] up speedy trial rights and [Appellant’s] right under Rule 600….”
Trial Court Opinion, 1/15/14, at 4, quoting Written Guilty Plea Colloquy, at 2.
Again, we note the written guilty plea colloquy is not contained in the record
certified to this Court.


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J-S57019-14


            normally constitute reversible error, said violation
            may not be challenged where it does not affect the
            voluntariness of the plea.

                   Where,     however,    the    appellant   can
            demonstrate that he did not knowingly waive his
            right to challenge said violation, and if he can
            demonstrate that the violation of Rule 1100 induced
            his guilty plea, he may be entitled to pursue his
            claim. As such, the appellant may allege that the
            waiver resulted from the ineffective assistance of
            trial counsel. In asserting a claim of ineffective
            assistance of trial counsel, an appellant must
            demonstrate that his underlying claim is of arguable
            merit. Where, however, the rights to a speedy trial
            were fully explained to an appellant at a hearing
            during which he proceeded to sign an agreement to
            waive such rights, counsel will not be deemed
            ineffective for failing to challenge an alleged Rule
            1100 violation.

Commonwealth v. Gibson, 561 A.2d 1240, 1242 (Pa. Super. 1989)

(citations omitted), appeal denied, 581 A.2d 568 (Pa. 1990).

      Here, Appellant does not challenge or seek to withdraw his plea. In

his PCRA petition, Appellant merely sought an adjudication of his Rule 600

claim, which he alleges trial counsel failed to pursue.

            Trial counsel was ineffective for failing to raise
            petitioner’s Rule 600 motion before the trial court.
            Petitioner was entitled to a dismissal of the charges
            against him because he was brought to trial after
            365 days had expired.          Petitioner has met his
            burden under Strickland/Pierce and he is entitled
            to the dismissal of all charges.




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Amended PCRA Petition, 10/25/12, at 4, ¶ 11.5

       Absent a challenge to the voluntariness of his plea and the showing of

some nexus between trial counsel’s alleged ineffectiveness and the entry of

an allegedly unknowing or involuntary plea and its attendant waivers, we

conclude Appellant has failed to demonstrate any prejudice in counsel’s

failure to pursue a waived claim. See Gibson, supra.

       For these reasons, we discern no error or abuse of discretion by the

PCRA court in dismissing Appellant’s PCRA petition without a hearing.

Accordingly, we affirm the October 30, 2013 order.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/27/2014




____________________________________________
5
   Appellant baldly asserts in his brief that “Appellant was not adequately
informed by counsel when he pled guilty.” Appellant’s Brief at 22. However,
Appellant did not allege this in his amended PCRA petition and may not raise
the issue for the first time on appeal. See Pa.R.A.P. 302(a) (declaring
issues not raised in the trial court are waived and cannot be raised for the
first time on appeal). Furthermore, Appellant provides no exposition or
development of this claim in his appellate brief.



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