J-S08037-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA            :    IN THE SUPERIOR COURT OF
                                         :         PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 AARON WYATT                             :
                                         :
                   Appellant             :    No. 2206 EDA 2018

             Appeal from the PCRA Order Entered July 9, 2018
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                     No(s): CP-51-CR-0013003-2015


BEFORE:    BENDER, P.J.E., KUNSELMAN, J., and STEVENS*, P.J.E.

MEMORANDUM BY STEVENS, P.J.E.:                     FILED MARCH 05, 2019

      Appellant, Aaron Wyatt, appeals from the July 9, 2018, order entered in

the Court of Common Pleas of Philadelphia County dismissing his first petition

filed under the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546, without

an evidentiary hearing. After a careful review, we affirm.

      The relevant facts and procedural history are as follows: On October 8,

2015, Appellant and a cohort robbed a female, and during the robbery,

Appellant struck the female’s head with a gun. Following his arrest, on April

5, 2016, Appellant, who was represented by counsel, proceeded to a hearing.

During the hearing, Appellant entered an open guilty plea to the charges of

aggravated assault, robbery, conspiracy, firearms not to be carried without a

license, and possession of a firearm prohibited.




____________________________________
* Former Justice specially assigned to the Superior Court.
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      On June 29, 2016, Appellant proceeded to a sentencing hearing, at the

conclusion of which the trial court imposed an aggregate sentence of five years

to ten years in prison, to be followed by twenty years of probation. Appellant

filed neither post-sentence motions nor a direct appeal.

      On or about February 7, 2017, Appellant filed a timely pro se PCRA

petition, and the trial court appointed counsel, who filed an amended PCRA

petition on January 21, 2018. Thereafter, the PCRA court provided Appellant

with notice of its intent to dismiss the petition without an evidentiary hearing,

and on July 9, 2018, the PCRA court dismissed the petition.         This timely,

counseled appeal followed.      The PCRA court directed Appellant to file a

Pa.R.A.P. 1925(b) statement, Appellant timely complied, and the PCRA court

filed a responsive opinion.

      On appeal, Appellant sets forth the following issues (verbatim):

      A. Did the PCRA court err as a matter of law by denying
         Appellant’s PCRA petition without a hearing where the issues
         alleged, if proven, would have entitled him to relief?
      B. Did the PCRA court err as a matter of law by denying
         Appellant’s PCRA petition without a hearing where [Appellant]
         claimed a manifest injustice has occurred in that his guilty plea
         was not tendered knowingly, intelligently, voluntarily, or
         understandably?
      C. Did the PCRA court err as a matter of law by denying
         [Appellant’s] PCRA petition without a hearing where his claim
         of ineffective assistance of counsel for plea counsel’s failure to
         consult with him regarding an appeal contained at least
         arguable merit?

Appellant’s Brief at 4.



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        Preliminarily, we note that our standard of review from the denial of a

PCRA petition “is limited to examining whether the PCRA court’s determination

is supported by the evidence of record and whether it is free of legal error.”

Commonwealth v. Ousley, 21 A.3d 1238, 1242 (Pa.Super. 2011) (citation

omitted).

        Appellant initially contends he was entitled to an evidentiary hearing

with regard to his PCRA petition. It is well-settled that a PCRA petitioner is

not automatically entitled to an evidentiary hearing on his petition.        See

Commonwealth v. Smith, 121 A.3d 1049 (Pa.Super. 2015). If the PCRA

court can determine from the record that no genuine issues of material fact

exist, then a hearing is not necessary. Id.        We review the PCRA court’s

decision to dismiss a petition without a hearing for an abuse of discretion.

Commonwealth v. McGarry, 172 A.3d 60, 70 (Pa.Super. 2017). With this

standard in mind, we proceed to examine Appellant’s specific claims.

        Appellant claims that he is entitled to an evidentiary hearing on whether

the trial court erred in accepting his guilty plea where it was unknowingly,

unintelligently, and involuntarily entered.      Specifically, Appellant contends

that the oral guilty plea colloquy did not sufficiently comply with Pa.R.Crim.P.

590.1

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1   As this Court has acknowledged:
        [Rule 590] mandate[s] that pleas be taken in open court, and
        require[s] the court to conduct an on-the-record colloquy to



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       “To be eligible for relief under [the PCRA], the petitioner must plead and

prove by a preponderance of the evidence…[t]hat the allegation of error has

not been previously litigated or waived.” 42 Pa.C.S.A. § 9543(a)(3). “[A]n

issue is waived if the petitioner could have raised it but failed to do so before

trial, at trial, during unitary review, on appeal or in a prior state postconviction

proceeding.” 42 Pa.C.S.A. § 9544(b).

       In the case sub judice, Appellant failed to challenge the voluntariness of

his guilty plea in either a motion in the trial court or in a direct appeal.

Therefore, this claim is waived. See 42 Pa.C.S.A. §§ 9543(a)(3) and 9544(b);

Commonwealth v. Rush, 959 A.2d 945, 949 (Pa.Super. 2008) (indicating

that an appellant must challenge the voluntariness of his guilty plea in the trial

court in order to preserve claims related thereto). Consequently, the PCRA




____________________________________________


      ascertain whether a defendant is aware of his rights and the
      consequences of his plea. Specifically, the court must affirmatively
      demonstrate the defendant understands: (1) the nature of the
      charges to which he is pleading guilty; (2) the factual basis for the
      plea; (3) his right to trial by jury; (4) the presumption of
      innocence; (5) the permissible ranges of sentences and fines
      possible; and (6) that the court is not bound by the terms of the
      agreement unless the court accepts the agreement.
Commonwealth v. Kelley, 136 A.3d 1007, 1013 (Pa.Super. 2016) (citations
omitted).




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court did not err in failing to hold an evidentiary hearing with regard to the

claim.2 See Smith, supra.

       In his final claim, Appellant contends the PCRA court erred in failing to

hold an evidentiary hearing as to whether guilty plea counsel was ineffective

in failing to consult with Appellant regarding whether he wished to file a direct

appeal in order to challenge the excessive nature of his sentence.

             Our standard of review when faced with a claim of
       ineffective assistance of counsel is well settled. First, we note that
       counsel is presumed to be effective and the burden of
       demonstrating ineffectiveness rests on [A]ppellant.
                                       ***
             A petitioner must show (1) that the underlying claim has
       merit; (2) counsel had no reasonable strategic basis for his or her
       action or inaction; and (3) but for the errors or omissions of
       counsel, there is a reasonable probability that the outcome of the
       proceedings would have been different. The failure to prove any
       one of the three prongs results in the failure of petitioner’s claim.


____________________________________________


2 Appellant suggests that, due to the deficiencies in the oral colloquy, guilty
plea counsel was ineffective in failing to ascertain “whether [Appellant] was
entering a knowing and intelligent guilty plea or whether he was entering a
plea to the facts as recited by the Commonwealth.” Appellant’s Brief at 8;
PCRA petition filed 1/21/18, at 2. However, Appellant did not claim that, had
counsel ensured the oral colloquy complied with Pa.R.Crim.P. 590, Appellant
would have declined to plead guilty and, instead, would have insisted upon
going to trial. As such, Appellant failed to plead the prejudice required to
merit PCRA relief, and the PCRA court properly denied this claim without an
evidentiary hearing.    See Commonwealth v. Rivera, 10 A.3d 1276
(Pa.Super. 2010) (setting forth prongs petitioner must plead and prove in
order to establish ineffective assistance of counsel). See also
Commonwealth v. Barndt, 74 A.3d 185, 192 (Pa.Super. 2013) (To establish
the prejudice prong of the ineffectiveness test, a PCRA petitioner “must show
that there is a reasonable probability that, but for counsel’s errors, he would
not have pleaded guilty and would have insisted on going to trial.”) (citation
and quotation marks omitted)).

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Rivera, 10 A.3d at 1279 (citations omitted).

             Our Supreme Court has held that counsel’s unexplained
      failure to file a requested direct appeal constitutes ineffective
      assistance per se, such that the petitioner is entitled to
      reinstatement of direct appeal rights nunc pro tunc without
      establishing prejudice. However, before a court will find
      ineffectiveness of counsel for failing to file a direct appeal, the
      petitioner must prove that he requested a direct appeal and the
      counsel disregarded the request.

Ousley, 21 A.3d at 1244 (citation and quotation omitted).

      In the case sub judice, Appellant has not alleged on appeal that he

requested guilty plea/sentencing counsel to file a direct appeal and counsel

failed to do so. Rather, Appellant contends that guilty plea/sentencing counsel

was ineffective in failing to consult with Appellant as to whether he desired to

file a direct appeal in order to present Appellant’s challenge to the excessive

nature of his sentence.

      With regard to counsel’s duty to consult, this Court has held as follows:

            [Case law] imposes a duty on counsel to adequately consult
      with the defendant as to the advantages and disadvantages of an
      appeal where there is reason to think that a defendant would want
      to appeal. The failure to consult may excuse the defendant from
      the obligation to request an appeal…such that counsel could still
      be found to be ineffective in not filing an appeal even where
      appellant did not request the appeal.
                                   ***
      Pursuant to Roe6 and Touw,7 counsel has a constitutional duty to
      consult with a defendant about an appeal where counsel has
      reason to believe either (1) that a rational defendant would want
      to appeal (for example, because there are nonfrivolous grounds
      for appeal), or (2) that this particular defendant reasonably
      demonstrated to counsel that he was interested in appealing.
      ___________________________________________________
      6
          Roe v. Flores–Ortega, 528 U.S. 470, 120 S.Ct. 1029 (2000).


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       7
           Commonwealth v. Touw, 781 A.2d 1250 (Pa.Super. 2001).

Ousley, 21 A.3d at 1244-45 (footnotes in original) (quotation omitted).

       In the case sub judice, we may ignore the latter condition because

Appellant does not argue that he reasonably demonstrated to counsel that he

was interested in appealing. As for the former condition, Appellant suggests

that the nonfrivolous issue which he wished to raise on appeal was the

excessive nature of his sentence, which is a challenge to the discretionary

aspects of his sentence.          See Commonwealth v. Lee, 876 A.2d 408

(Pa.Super. 2005) (claim that the trial court erred in imposing an excessive

sentence is a challenge to the discretionary aspects of a sentence).

       In order to preserve a challenge to the discretionary aspects of his

sentence, Appellant must have been raised the issue at sentencing or in post-

sentence motion.        See Commonwealth v. Rhoades, 8 A.3d 912, 915

(Pa.Super. 2010) (stating that an appellant waives for appeal issues

challenging the discretionary aspects of his sentence where he does not raise

them at sentencing or in a post-sentence motion). Here, Appellant did not

present his discretionary aspect of sentencing claim in such a manner, and

thus, had counsel presented the claim in a direct appeal, it would have been

deemed waived.3 Therefore, as Appellant has not met his burden of

demonstrating he was prejudiced by counsel’s failure to consult regarding a


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3We note the sentencing court informed Appellant of his post-sentence and
appellate rights. N.T., 6/29/16, at 9.

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nonfrivolous ground for appeal, we find guilty plea/sentencing counsel was not

ineffective. See Ousley, supra. Consequently, the PCRA court did not err in

failing to hold an evidentiary hearing on this claim.

      For all of the foregoing reasons, we conclude Appellant is not entitled to

PCRA relief, and thus, we affirm.

      Affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/5/19




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