J-S25025-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

NATHANAL C. CONN

                            Appellant                 No. 1599 WDA 2014


               Appeal from the PCRA Order entered July 29, 2014
               In the Court of Common Pleas of Venango County
               Criminal Division at No: CP-61-CR-0000405-2012


BEFORE: BENDER, P.J.E., STABILE, and PLATT,* JJ.

MEMORANDUM BY STABILE, J.:                               FILED JULY 28, 2015

        Appellant, Nathanal C. Conn, appeals from the July 29, 2014 order of

the Court of Common Pleas of Venango County denying relief under the Post

Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-46.         Upon review, we

affirm.

        The PCRA court summarized the relevant background as follows:

        On February 14, 2013, [Appellant] pled guilty and was
        sentenced on the offense of [c]riminal [a]ttempt to [c]ommit
        [m]urder, in violation of 18 Pa.C.S.A. § 901, underlying offense
        18 Pa.C.S.A. § 2502(a), a [f]elony 1. At the time of the guilty
        plea, [Appellant] was represented by Attorney D. Shawn White.
        [Appellant] was sentenced to imprisonment in a state institution
        of the Department of Corrections for a minimum of twenty (20)
        years and a maximum of forty (40) years. On January 22, 2014,
        [Appellant] filed a [PCRA p]etition asserting claims of ineffective
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*
    Retired Senior Judge assigned to the Superior Court.
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        assistance of counsel and improper sentence.              Upon
        consideration of [Appellant]’s PCRA [p]etition, this court
        appointed Matthew C. Parson, Esquire, to represent [Appellant].
        Newly appointed counsel submitted an [a]mended PCRA
        [p]etition on April 9, 2014, raising the following issue:

              That trial counsel was ineffective for failing to
              describe to the petitioner all the aspects of his plea
              and the results of taking the plea, i.e. counsel
              promised a sentence with a minimum of nine years.

        Following a PCRA [h]earing on July 29, 2014, this court denied
        [Appellant]’s PCRA [p]etition. [Appellant] was granted leave to
        proceed [i]n [f]orma [p]auperis on appeal, and [Appellant]
        submitted his [n]otice of [a]ppeal on August 26, 2014. In
        accordance with Pa.R.A.P. 1925(b), the court instructed
        Appellant on September 29, 2014, to submit a concise statement
        of matters [sic] complained of on appeal no later than twenty-
        one (21) days after the entry of the [o]rder. [Appellant timely
        complied. This appeal followed.]

PCRA Court Opinion, 12/22/14, at 1-2 (unnumbered opinion).

        On appeal, Appellant challenges the denial of his PCRA petition.1

Specifically, Appellant argues the PCRA court erred in not finding plea

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1
    On appeal, Appellant raises the following questions:

        1. Whether the PCRA [c]ourt erred as a matter of law or abused
           its discretion in determining that trial counsel was not
           ineffective in failing to describe and ensure his client
           understood his guilty plea.

        2. Whether the PCRA [c]ourt erred as a matter of law or abused
           its discretion in determining that trial counsel was not
           ineffective in failing to file an appeal to the trial court’s
           sentence.

Appellant’s Brief at 5. As explained below, the second issue is waived for
failure to timely and properly raise it before the PCRA court.



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counsel ineffective for failing to inform Appellant that the plea was open. 2

We disagree. Accordingly, we affirm.

       We review claims of ineffective assistance of counsel3 based on the

following principles:

              Our standard of review of the denial of a PCRA
              petition is limited to examining whether the court’s
              determination is supported by the evidence of record
              and free of legal error. This Court grants great
              deference to the findings of the PCRA court if the
              record contains any support for those findings.
              Further, the PCRA court’s credibility determinations
              are binding on this Court, where there is record
              support for those determinations.

       Commonwealth v. Anderson, 995 A.2d 1184, 1189 (Pa.
       Super. 2010) (citations omitted).

              To    prevail  on   a    claim   alleging  counsel’s
              ineffectiveness under the PCRA, Appellant must
              demonstrate (1) that the underlying claim is of
              arguable merit; (2) that counsel’s course of conduct
              was without a reasonable basis designed to
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2
  “In an open plea agreement, there is an agreement as to the charges to be
brought, but no agreement at all to restrict the prosecution’s right to seek
the maximum sentences applicable to those charges.” Commonwealth v.
White, 787 A.2d 1088, 1089 n.2 (Pa. Super. 2001) (quotation marks and
citations omitted). “At the other end of the negotiated plea agreement
continuum, a plea agreement may specify not only the charges to be
brought, but also the specific penalties to be imposed.” Id.
3
  Despite Appellant’s challenge to plea counsel’s performance, in his brief
before this Court Appellant cites 42 Pa.C.S.A. § 9543(a)(2)(iii) (relating to
unlawfully induced guilty pleas), which is not applicable here because he
raised an ineffective assistance claim, 42 Pa.C.S.A. § 9543(a)(2)(ii). See
Commonwealth v. Lynch, 820 A.2d 728, 731-32 (Pa. Super. 2003).




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           effectuate his client’s interest; and (3) that he was
           prejudiced by counsel’s ineffectiveness, i.e. there is a
           reasonable probability that but for the act or
           omission in question the outcome of the proceedings
           would have been different.

           It is clear that a criminal defendant’s right to
           effective counsel extends to the plea process, as well
           as    during    trial.    However,     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. Wah, 42 A.3d 335, 338 (Pa. Super. 2012)
     (citations, quotation, and quotation marks omitted).

     “[T]he law does not require that [the defendant] be pleased with
     the outcome of his decision to enter a plea of guilty: All that is
     required is that [his] decision to plead guilty be knowingly,
     voluntarily, and intelligently made.” Anderson, 995 A.2d at
     1192 (citations, quotation, and quotation marks omitted).
     Moreover, with regard to the prejudice prong, where an
     appellant has entered a guilty plea, the appellant must
     demonstrate “it is reasonably probable that, but for counsel’s
     errors, he would not have pleaded guilty and would have gone to
     trial.” Commonwealth v. Rathfon, 899 A.2d 365, 370 (Pa.
     Super. 2006) (quotation and quotation marks omitted).

Commonwealth v. Timchak, 69 A.3d 765, 769-70 (Pa. Super. 2013).

     Appellant’s first claim of ineffective assistance of counsel has no merit.

A review of the transcripts of the guilty plea and PCRA hearings disposes of

the matter. As noted by the court at the PCRA hearing, at the time of the

plea, the court repeatedly asked Appellant whether he understood the terms

of his plea, to which Appellant answered in the affirmative each time he was

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asked by the court.    The terms of the plea included Appellant, inter alia,

entering a guilty plea to attempted murder, which carried a potential for a

maximum term of imprisonment of 40 years and a minimum of 20 years,

N.T. PCRA Hearing, 7/29/14, at 48, and the Commonwealth’s withdrawal of

the remaining counts, id. at 37. Additionally, the trial court made it clear to

the parties it was not bound by any sentencing agreement they might have

had. Id. at 36. The court also asked Appellant whether he had been forced

or threatened to take the plea or whether he had been promised any

particular sentence or leniency, to which questions Appellant answered in

the negative.   At the hearing, plea counsel testified that he explained the

plea in detail and had no doubts that Appellant understood the terms of the

agreement. Id. at 23. Indeed, the PCRA court found that

      [T]he face of the record shows that [A]ppellant was fully
      apprised of the consequences of a guilty plea. During the PCRA
      hearing . . ., [Appellant] testified that he recalled doing a
      colloquy in front of the [c]ourt. Additionally, [Appellant] recalled
      the [c]ourt asking if there were any promises made to him
      before entering into the plea, to which he replied “no.” After
      listening to every question in the guilty plea colloquy, this court
      asked [Appellant], again, “is it still your intention to enter a
      guilty plea to the charges subject to the terms of the plea
      agreement?” [Appellant] responded with, “yes.”

PCRA Court Opinion, 12/22/14, at 4 (unnumbered opinion).

      The PCRA court, in essence, did not believe that Appellant did not

understand the terms of his plea. Instead, upon consideration of Appellant’s

answers to the colloquy at the guilty plea hearing, and Appellant’s and plea

counsel’s testimony at the PCRA hearing, the PCRA court found the terms of

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plea were fully explained to Appellant, and plea counsel was not ineffective

in connection with the plea.        The record supports the PCRA court’s factual

and credibility determinations. Accordingly, we conclude the PCRA court did

not err in denying relief on Appellant’s first claim.4

       In his second issue, Appellant argues plea counsel was ineffective for

failing to file an appeal. As noted by the PCRA court, PCRA Court Opinion,

12/22/14, at 8 (unnumbered opinion), and acknowledged by Appellant,

Appellant’s Brief at 12, this issue was not raised in the PCRA petition, and it

was not addressed—or even mentioned—at the PCRA hearing. The issue, in

fact, was raised for the first time on appeal, and Appellant provides no

authority for us to entertain it at this stage. As such, the second claim is

waived. See Pa.R.A.P. 302(a) (a claim is waived if raised for the first time

on appeal); Commonwealth v. Weiss, 81 A.3d 767, 795 n.17 (Pa. 2013).

       Order affirmed.




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4
  Because we find the claim has no merit, we need not address the
remaining prongs of the ineffective assistance standard.        See, e.g.,
Commonwealth v. Fears, 86 A.3d 795, 804 (Pa. 2014) (“Failure to prove
any prong of this test will defeat an ineffectiveness claim.”).



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/28/2015




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