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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :    IN THE SUPERIOR COURT OF
                                          :          PENNSYLVANIA
                   v.                     :
                                          :
WILLIAM WHARTON,                          :         No. 3887 EDA 2017
                                          :
                        Appellant         :


               Appeal from the PCRA Order, October 31, 2017,
            in the Court of Common Pleas of Philadelphia County
              Criminal Division at No. CP-51-CR-0006122-2013


BEFORE: GANTMAN, P.J., McLAUGHLIN, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                FILED JANUARY 04, 2019

      William Wharton appeals from the October 31, 2017 order denying his

petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A.

§§ 9541-9546. After careful review, we affirm.

      The relevant facts and procedural history of this case, as gleaned from

the certified record, are as follows. On June 11, 2010, appellant shot and

killed the victim, William Mack, in Philadelphia following a dispute over an

iPod. (Notes of testimony, 6/5/14 at 21-25.) Appellant was subsequently

arrested and charged with third-degree murder and related offenses in

connection with this incident.      On June 5, 2014, appellant entered into a

negotiated guilty plea to third-degree murder, criminal conspiracy, and
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robbery.1 That same day, the trial court sentenced appellant to an aggregate

term of 30 to 60 years’ imprisonment. At all relevant times during his guilty

plea and sentencing, appellant was represented by Todd Henry, Esq.

(“plea counsel”). Appellant did not file any post-sentence motions or a direct

appeal.

        On June 22, 2015, appellant filed the instant pro se PCRA petition, and

David Rudenstein, Esq. (“PCRA counsel”), was appointed to represent him.

On April 7, 2017, PCRA counsel filed an amended PCRA petition on appellant’s

behalf, arguing that plea counsel was ineffective by inducing appellant to enter

an unknowing and involuntary guilty plea.           (See amended PCRA petition,

4/7/17 at ¶¶ 10-11.) On May 24, 2017, the Commonwealth filed a motion to

dismiss appellant’s PCRA petition.       Thereafter, on August 1, 2017, PCRA

counsel filed a supplemental, amended PCRA petition, arguing that plea

counsel was ineffective in failing to file a direct appeal. (See supplemental

amended PCRA petition, 8/1/17 at ¶ 3.) Following several continuances, the

PCRA court conducted an evidentiary hearing on appellant’s petition on

October 31, 2017. That same day, the PCRA court entered an order denying

appellant’s petition. This timely appeal followed on November 29, 2017. On

December 13, 2017, the trial court directed appellant to file a concise

statement     of   errors   complained   of    on   appeal,   in   accordance   with

Pa.R.A.P. 1925(b), within 30 days. Appellant filed his Rule 1925(b) statement


1   18 Pa.C.S.A. §§ 2502(c), 903, and 3701(a)(1), respectively.


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on March 1, 2018, and the trial court filed its Rule 1925(a) opinion on

March 26, 2018.2

      Appellant raises the following issue for our review:

            Did the PCRA [c]ourt err when it failed to grant PCRA
            relief after conducting a [guilty pleas h]earing and
            learning that [appellant] was mentally challenged and
            most clearly did not understand most of everything
            that had occurred to him [at said hearing]?




2Appellant’s Rule 1925(b) statement, which was filed well past the 30-day
deadline imposed by the trial court, is untimely on its face. The trial court’s
Rule 1925 order reads as follows:

            AND NOW, this 13th day of December, 2017, it is
            hereby ORDERED and DECREED that [appellant]
            shall file with the Clerk of Court, Court of Common
            Pleas, Criminal Trial Division and concurrently serve
            the Honorable Rose Marie DeFino-Nastasi with a
            statement of matters complained of on appeal
            pursuant to Pennsylvania Rule of Appellate Procedure
            1925(b) by January 13, 2017.

Pa.R.A.P. 1925(b) order, 12/13/17.

       Clearly, the order is not in compliance with Rule 1925(b)(3)(iv) in that
it does not “specify . . . that any issue not properly included in the Statement
timely filed and served pursuant to subdivision (b) shall be deemed waived.”
Pa.R.A.P. 1925(b)(3)(iv). Recent opinions from this court have declined to
find waiver if the trial court does not expressly comply with subsection
1925(b)(3)(iv). See Commonwealth v. Jones, 193 A.3d 957, 961-962
(Pa.Super. 2018); Commonwealth v. Bush,                     A.3d     , 2018 WL
4782153 (Pa.Super. 2018). Although this writer has some concerns with
applying the Subsection 1925(b)(3)(iv) analysis to an untimely filed
Rule 1925(b) statement when the trial court specified the time for filing,
clearly pursuant to Subsection 1925(c)(3), this court may determine that
counsel was ineffective for the late filing and either decide the case on the
merits or remand for the filing of a new statement and/or trial court opinion.
Here, we find it unnecessary to remand and will address appellant’s issues on
the merits.


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Appellant’s brief at 3.

      Proper appellate review of a PCRA court’s dismissal of a PCRA petition

is limited to the examination of “whether the PCRA court’s determination is

supported by the record and free of legal error.” Commonwealth v. Miller,

102 A.3d 988, 992 (Pa.Super. 2014) (citation omitted). “This Court grants

great deference to the findings of the PCRA court, and we will not disturb those

findings merely because the record could support a contrary holding.”

Commonwealth v. Patterson, 143 A.3d 394, 397 (Pa.Super. 2016) (citation

omitted). In order to be eligible for PCRA relief, a defendant 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).

Further, these issues must be neither previously litigated nor waived.

42 Pa.C.S.A. § 9543(a)(3).

      Here, the crux of appellant’s claim is that plea counsel’s ineffectiveness

induced him to enter an unknowing and involuntary guilty plea. (Appellant’s

brief at 5.) Appellant avers that plea counsel “failed to realize, or overlooked”

the fact that appellant was a “troubled” and “uneducated” man and “did not

fully comprehend the meaning and scope of his [g]uilty [p]lea” that would

subject him to a 30 to 60-year term of imprisonment. (Id. at 6.) The record

belies this claim.

      In Commonwealth v. Lynch, 820 A.2d 728 (Pa.Super. 2003), appeal

denied, 835 A.2d 709 (Pa. 2003), we explained that the PCRA will provide



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relief to an appellant if ineffective assistance of counsel caused him to enter

an unknowing and involuntary guilty plea. We conduct our review of such a

claim in accordance with the three-pronged ineffectiveness test under

Section 9543(a)(2)(ii) of the PCRA. See Lynch, 820 A.2d at 732. To prevail

on a claim of ineffective assistance of counsel under the PCRA, a petitioner

must plead and prove 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.”        42 Pa.C.S.A.

§ 9543(a)(2)(ii). Specifically, a petitioner must establish the following three

factors: “first[,] the underlying claim has arguable merit; second, that counsel

had no reasonable basis for his action or inaction; and third, that Appellant

was prejudiced.”    Commonwealth v. Charleston, 94 A.3d 1012, 1020

(Pa.Super. 2014) (citation omitted), appeal denied, 104 A.3d 523 (Pa.

2014). “A petitioner establishes prejudice when he demonstrates that there

is a reasonable probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different.”      Commonwealth v.

Johnson, 966 A.2d 523, 533 (Pa. 2009) (citations and internal quotation

marks omitted).

      “[C]ounsel is presumed to be effective and the burden of demonstrating

ineffectiveness rests on appellant.”    Commonwealth v. Ousley, 21 A.3d

1238, 1242 (Pa.Super. 2011) (citation omitted), appeal denied, 30 A.3d 487

(Pa. 2011). Additionally, we note that counsel cannot be found ineffective for



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failing to raise a claim that is devoid of merit. See, e.g., Commonwealth v.

Ligons, 971 A.2d 1125, 1146 (Pa. 2009).

      This court has long recognized that “[a] criminal defendant has the right

to effective counsel during a plea process as well as during trial.” Patterson,

143 A.3d at 397 (citation omitted). “The law does not require that appellant

be pleased with the outcome of his decision to enter a plea of guilty[; a]ll that

is required is that [appellant’s] decision to plead guilty be knowingly,

voluntarily, and intelligently made.” Commonwealth v. Diaz, 913 A.2d 871,

873 (Pa.Super. 2006) (citation and internal quotation marks omitted), appeal

denied, 931 A.2d 656 (Pa. 2007).

            Allegations of ineffectiveness in connection with the
            entry of a guilty plea will serve as a basis for relief
            only if the ineffectiveness caused the defendant to
            enter an involuntary or unknowing plea. Where the
            defendant enters his plea on the advice of counsel, the
            voluntariness of the plea depends on whether
            counsel’s advice was within the range of competence
            demanded of attorneys in criminal cases.

Commonwealth v. Barndt, 74 A.3d 185, 192 (Pa.Super. 2013) (citation

omitted).

      In order to ensure a voluntary, knowing, and intelligent plea, trial courts

are required make the following inquires in the guilty plea colloquy:

            (1) the nature of the charges to which he is pleading
            guilty; (2) the factual basis for the plea; (3) he is
            giving up his right to trial by jury; (4) and the
            presumption of innocence; (5) he is aware of the
            permissible ranges of sentences and fines possible;
            and (6) the court is not bound by the terms of the
            agreement unless the court accepts the plea.


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Commonwealth v. Kpou, 153 A.3d 1020, 1023 (Pa.Super. 2016) (citation

omitted); see also Pa.R.Crim.P. 590.               “Pennsylvania law presumes a

defendant who entered a guilty plea was aware of what he was doing, and the

defendant bears the burden of proving otherwise.” Kpou, 153 A.3d at 1024

(citation omitted).

      Lastly, we note that, when a defendant seeks to withdraw a plea after

sentencing, he must demonstrate “prejudice on the order of manifest injustice

before withdrawal is justified.” Commonwealth v. Yeomans, 24 A.3d 1044,

1046 (Pa.Super. 2011) (citation omitted). “A plea rises to the level of manifest

injustice   when      it   was   entered    into   involuntarily,   unknowingly,   or

unintelligently.” Commonwealth v. Stork, 737 A.2d 789, 790 (Pa.Super.

1999), appeal denied, 764 A.2d 1068 (Pa. 2000).

      Here, appellant’s contention that plea counsel induced him to enter an

unknowing and involuntary guilty plea lacks arguable merit.              The record

reflects that on June 5, 2014, appellant executed a written guilty plea colloquy

wherein he acknowledged that he understood he was pleading guilty to

third-degree murder, criminal conspiracy, and robbery, and that no other

promises or threats were made to him with regard to his guilty plea or

sentence.    (Written guilty plea colloquy, 6/5/14 at 1.)           Appellant further

acknowledged in the written guilty plea colloquy that, “[t]here is no plea

bargain or agreement of any kind, except that the District Attorney promised

to: [r]ecommend a sentence of not more than 30 to 60 [years] [months].”


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(Id.)    Appellant also acknowledged, inter alia, that he had finished high

school, could read and write English, and that he did not have any mental

health problems. (Id.) Additionally, appellant indicated that he had enough

time to speak with plea counsel about his case and was satisfied with plea

counsel’s representation. (Id. at 3.)

        Thereafter, on June 5, 2014, the trial court conducted an on-the-record

colloquy, as mandated by Rule 590. The transcript of the guilty plea colloquy

demonstrates that the trial court inquired at great length with regard to

appellant’s decision to plead guilty. Appellant indicated during this hearing

that he had graduated from high school, could read and write English, and

was not under the influence of drugs and alcohol. (Notes of testimony, 6/5/14

at 4.) Appellant also acknowledged that he has never been treated for mental

illness, understood all the questions in the written plea colloquy, and had

signed it voluntarily. (Id. at 4, 14-15.) Appellant reiterated that he reviewed

the written plea colloquy with plea counsel prior to signing it, did not have any

questions for counsel or the trial judge, and was satisfied with plea counsel’s

representation. (Id. at 14-16.) The record further reflects that the trial court

provided appellant with a lengthy explanation of his trial and appellate rights,

and appellant repeatedly indicated that he understood them.         (See id. at

5-13.)

        Our review of the guilty plea transcript further reveals that appellant

was given a factual basis for the plea and acknowledged that he understood



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the nature of the charges to which he is pleading guilty and the permissible

ranges of sentences and fines possible for each count. (See id. at 16-19,

21-25.) With respect to the imposition of sentence, appellant indicated that

he understood that the trial court could impose an aggregate sentence of

30 to 60 years’ imprisonment, pursuant to the terms of his negotiated plea

agreement, but that the court was not bound by the agreement unless it

accepted the plea. (Id. at 18-19.)

      Specifically, the following exchange took place during the plea hearing:

            THE COURT: The Commonwealth has agreed that in
            exchange for your plea to third degree murder, they
            will not proceed on first degree murder and you will
            receive a sentence of 20 to 40 years on the third
            degree murder charge, with a sentence of 10 to
            20 years to run consecutively on the conspiracy
            charge and no further penalty on the robbery charge,
            making your total sentence 30 to 60 years.

            Do you understand that?

            [APPELLANT]: Yes.

Id. at 20. Thereafter, appellant informed the trial court that he was pleading

guilty of his own free will and that no one had promised him anything in

exchange for entering this plea. (Id.)

      Upon review, we cannot conclude that appellant was induced by plea

counsel to enter an unknowing and unintelligent guilty plea. Rather, we find

the trial court made the requisite inquiries that satisfied that appellant’s plea

was entered into knowingly, intelligently, and voluntarily. Appellant willingly

availed himself of the benefits of the plea agreement and is bound by the


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statements he made during his written and oral guilty plea colloquies. See

Commonwealth v. Turetsky, 925 A.2d 876, 881 (Pa.Super. 2007) (stating,

“[a] person who elects to plead guilty is bound by the statements he makes

in open court while under oath and he may not later assert grounds for

withdrawing the plea which contradict the statements he made at his plea

colloquy.” (citation omitted)), appeal denied, 940 A.2d 365 (Pa. 2007).

Accordingly, for all the foregoing reasons, appellant’s ineffectiveness claim

must fail.

      Based on the foregoing, we affirm the October 31, 2017 order of the

PCRA court denying appellant’s PCRA petition.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary




Date: 1/4/19




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