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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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.                    :
                                       :
JAMES ROBERT SLATER,                   :          No. 1934 WDA 2015
                                       :
                       Appellant       :


            Appeal from the PCRA Order, November 12, 2015,
            in the Court of Common Pleas of Allegheny County
             Criminal Division at No. CP-02-CR-0008089-2007


BEFORE: FORD ELLIOTT, P.J.E., LAZARUS AND JENKINS, JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:              FILED OCTOBER 12, 2016

     James Robert Slater appeals from the November 12, 2015 order

entered in the Court of Common Pleas of Allegheny County that denied his

petition filed pursuant to the Post Conviction Relief Act, 42 Pa.C.S.A.

§§ 9541-9546 (“PCRA”).     PCRA counsel has also filed an application to

withdraw. We affirm.

     The PCRA court set forth the following:

                 [Appellant] was charged with Rape of a
           Child,[Footnote 1] Involuntary Deviate Sexual
           Intercourse with a Child [“IDSI”],[Footnote 2]
           Statutory Sexual Assault,[Footnote 3] Unlawful
           Contact with a Minor,[Footnote 4] Indecent Assault
           of a Child under 13,[Footnote 5] Indecent
           Exposure[Footnote     6]    and     Corruption     of
           Minors.[Footnote 7] A jury trial was held before this
           Court in May, 2008 and at the close of the
           Commonwealth’s case, [appellant’s] Motion for
           Judgment of Acquittal was granted as to the Unlawful
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          Contact with a Minor charge. The jury returned a
          verdict of Not Guilty at the IDSI charge, but
          convicted [appellant] of all remaining charges.

               [Footnote   1]   18   Pa.C.S.A.   §   3121(c)
               [Footnote   2]   18   Pa.C.S.A.   §   3123(b)
               [Footnote   3]   18   Pa.C.S.A.   §   3122.1
               [Footnote   4]   18   Pa.C.S.A.   §   6318(2)
               [Footnote   5]   18   Pa.C.S.A.   §   3126(a)(7)
               [Footnote   6]   18   Pa.C.S.A.   §   3127(a)
               [Footnote   7]   18   Pa.C.S.A.   §   301(a)(1)

                 [Appellant] appeared before this Court on
          August 18, 2008 and was sentenced to a term of
          imprisonment of 10 to 20 years at the Rape count,
          with consecutive terms of imprisonment of three (3)
          to six (6) years at the Statutory Sexual Assault count
          and two and one half (2 ½) to five (5) years at the
          Corruption of Minors count.          His Motion for
          Reconsideration was denied on August 26, 2008.
          The judgment of sentence was affirmed by the
          Superior Court on January 26, 2010 and his
          subsequent Petition for Allowance of Appeal was
          denied by our [Supreme] Court on September 15,
          2010.

                 No further action was taken until November 2,
          2011, when [appellant] filed a pro se [PCRA]
          Petition.    Counsel was appointed to represent
          [appellant] and five (5) subsequent amendments to
          the Petition followed. An evidentiary hearing was
          held before this Court on January 8, 2013, after
          which this Court granted relief and ordered a new
          trial.

                On October 21, 2013, [appellant] appeared
          before this Court with his new attorney, Nicole Nino,
          Esquire, and entered a negotiated guilty plea to all
          counts and was immediately sentenced to a term of
          imprisonment of seven and one half (7 1/2 ) to
          15 years with a lifetime term of registration. No
          Post-Sentence Motions were filed and no direct
          appeal was taken.



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                    On    November      26,   2014[Footnote   8],
              [appellant] filed a pro se [PCRA] Petition. Counsel
              was appointed to represent [appellant] and an
              Amended Petition followed. An evidentiary hearing
              was held before [this] Court on November 10, 2015,
              at which time relief was denied. A written Order to
              that effect followed on November 12, 2015. This
              appeal followed.

                      [Footnote 8] This Court has accepted
                      the Petition as timely pursuant to the
                      Prisoner Mailbox Rule[.][1]

PCRA court opinion, 5/19/16 at 1-3.

        Appellant raises the following issue for our review:

              Whether the PCRA Court erred in failing to grant
              relief when counsel gave ineffective assistance by
              unlawfully inducing [a]ppellant to plead guilty?

Appellant’s brief at 4.

        On July 11, 2016, Attorney Thomas N. Farrell filed an application to

withdraw and a Turner/Finley2 no-merit letter in the form of an appellant’s

brief, where he concludes that there are no meritorious issues worth raising

on appeal.

        Before   we     consider   appellant’s   argument,     we   must   review

Attorney Farrell’s application to withdraw.        Pursuant to Turner/Finley,

before withdrawal on collateral appeal is permitted, an independent review

of the record by competent counsel is required. Commonwealth v. Pitts,


1
    See Pa.R.A.P. 121(a).
2
  Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).


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981 A.2d 875, 876 n.1 (Pa. 2009). Counsel must then submit a no-merit

letter that (1) details the nature and extent of his or her review; (2) lists

each issue the petitioner wishes to have reviewed; and (3) explains why the

petitioner’s issues lack merit.         Id.    The court then conducts its own

independent review of the record to determine whether the petition indeed

lacks merit.      Id.   Counsel must also send petitioner:     “(1) a copy of the

‘no-merit’ letter/brief; (2) a copy of counsel’s petition to withdraw; and (3) a

statement advising petitioner of the right to proceed pro se or by new

counsel.”        Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa.Super.

2007) (citation omitted).

      Our review of the record demonstrates that Attorney Farrell has

complied with each of the above requirements. Additionally, Attorney Farrell

sent appellant copies of the Turner/Finley no-merit letter and his

application to withdraw and advised appellant of his right to retain new

counsel or proceed pro se.         See Commonwealth v. Widgins, 29 A.3d

816, 818 (Pa.Super. 2011).

      We now address appellant’s issue to determine whether we agree with

Attorney Farrell that it lacks merit.

      In PCRA appeals, our scope of review “is limited to the findings of the

PCRA court and the evidence on the record of the PCRA court’s hearing,

viewed      in    the   light   most    favorable   to   the   prevailing   party.”

Commonwealth v. Sam, 952 A.2d 565, 573 (Pa. 2008) (internal quotation



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omitted). Because most PCRA appeals involve questions of fact and law, we

employ a mixed standard of review. Pitts, 981 A.2d at 878. We defer to

the PCRA court’s factual findings and credibility determinations supported by

the record. Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa.Super. 2014)

(en banc).     In contrast, we review the PCRA court’s legal conclusions

de novo. Id.

     Here, appellant asserts ineffective assistance of guilty plea counsel.

             In evaluating claims of ineffective assistance of
             counsel, we presume that counsel is effective.
             Commonwealth v. Rollins, 558 Pa. 532, 738 A.2d
             435, 441 (Pa. 1999).            To overcome this
             presumption, Appellant must establish three factors.
             First, that the underlying claim has arguable merit.
             See Commonwealth v. Travaglia, 541 Pa. 108,
             661 A.2d 352, 356 (Pa. 1995). Second, that counsel
             had no reasonable basis for his action or inaction.
             Id. In determining whether counsel’s action was
             reasonable, we do not question whether there were
             other more logical courses of action which counsel
             could have pursued; rather, we must examine
             whether counsel’s decisions had any reasonable
             basis.       See Rollins, 738 A.2d at 441;
             Commonwealth v. (Charles) Pierce, 515 Pa. 153,
             527 A.2d 973, 975 (Pa. 1987). Finally, “Appellant
             must establish that he has been prejudiced by
             counsel’s ineffectiveness; in order to meet this
             burden, he must show that ‘but for the act or
             omission in question, the outcome of the proceedings
             would have been different.’” See Rollins, 738 A.2d
             at 441 (quoting Travaglia, 661 A.2d at 357). A
             claim of ineffectiveness may be denied by a showing
             that the petitioner’s evidence fails to meet any of
             these prongs.       Commonwealth v. (Michael)
             Pierce, 567 Pa. 186, 786 A.2d 203, 221-22 (Pa.
             2001); Commonwealth v. Basemore, 560 Pa. 258,
             744     A.2d    717,    738    n.23    (Pa.   2000);
             Commonwealth v. Albrecht, 554 Pa. 31, 720 A.2d


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             693, 701 (Pa. 1998) (“If it is clear that Appellant has
             not demonstrated that counsel’s act or omission
             adversely affected the outcome of the proceedings,
             the claim may be dismissed on that basis alone and
             the court need not first determine whether the first
             and second prongs have been met.”).

Commonwealth v. Washington, 927 A.2d 586, 594 (Pa. 2007).

      In the context of a plea, a claim of ineffectiveness may provide relief

only if the alleged ineffectiveness caused an involuntary or unknowing plea.

See Commonwealth v. Mendoza, 730 A.2d 503, 505 (Pa.Super. 1999).

“[A] defendant is bound by the statements which he makes during his plea

colloquy.”   Commonwealth v. Barnes, 687 A.2d 1163, 1167 (Pa. 1997)

(citations omitted).     As such, a defendant may not assert grounds for

withdrawing the plea that contradict statements made when he entered the

plea. Id. (citation omitted).

      Here, appellant complains that plea counsel promised him that he

would be paroled on the date of his minimum sentence and, based on that

promise, he was unlawfully induced to plead guilty.      At the PCRA hearing,

however, appellant testified on cross-examination, as follows:

             Q     Sir, you stated that, if I understand your
                   testimony, [plea counsel] stated that you could
                   make parole; correct?

             A     Correct.

             Q     She didn’t promise you that it was a hundred
                   percent guaranteed; did she?

             A     No.



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Notes of testimony, 11/10/15 at 7.

     The   record   also   reveals   that   plea   counsel   testified   on   direct

examination, as follows:

           [Q]   Do you recall -- or did you ever promise
                 [appellant] that if he was -- he could be out on
                 his minimum in this case?

           A     No. And to that point, this practice, criminal
                 practice, is very unpredictable. I do not make
                 guarantees to clients.

           Q     Have you ever made that promise?

           A     To anyone? No. I never guarantee anything,
                 especially when it comes to parole, certainly.

           Q     Now, you heard [appellant], what he testified
                 to. Did that occur, that testimony, do you
                 recall that, whatever that was?

           A     No. I discussed plenty of things regarding
                 parole and processes and when you’re
                 considered a sex offender and the reentry
                 programs and everything, but that specific,
                 that you would be paroled at seven-and-a-half
                 years, no.

           Q     Would you --

           A     Guarantee a seven-and-a-half year? No.

Id. at 9-10.

     The record further reflects that at the conclusion of the testimony, the

PCRA court denied appellant’s PCRA petition, as follows:

           THE COURT: Well, in light of the fact of [plea
           counsel’s] testimony, as well as the fact that
           [appellant] did not -- kind of hedged on he was



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             promised and said that she never promised him a
             hundred percent, I’m going to deny the PCRA.

Id. at 13.

      Here, the PCRA court determined that plea counsel credibly testified

and that appellant entered his guilty plea knowingly, voluntarily, and

intelligently.3 (See id.; see also PCRA court opinion, 5/19/16 at 6.) The

record supports the PCRA court’s factual findings, and we will not disturb

them on appeal.        The record also supports the PCRA court’s legal

conclusions, and they are free of legal error.

      Having conducted an independent review of the record, this court is

satisfied that the issue raised in appellant’s petition is meritless and that the

PCRA court did not err in denying appellant’s petition. We, therefore, grant

Attorney Farrell’s petition to withdraw and affirm the PCRA court’s order.

      Petition to withdraw granted. Order affirmed.




3
  We note that during appellant’s plea and sentencing colloquy, appellant
stated, among other things, that he understood the nature of the charges
against him; that he understood that he faced a maximum of 45 years of
imprisonment; that he read, understood, and completed the guilty
plea/explanation of defendant’s rights form; that he was entering his guilty


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/12/2016




plea because he is guilty; and that he was satisfied with the services of plea
counsel. (Notes of testimony, 10/21/13 at 4-8.)


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