J-S25022-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                            :        PENNSYLVANIA
                                            :
               v.                           :
                                            :
                                            :
 DEWAYNE LAMAR CHATMAN                      :
                                            :
                      Appellant             :   No. 1442 WDA 2017

                Appeal from the PCRA Order September 7, 2017
               In the Court of Common Pleas of Cambria County
             Criminal Division at No(s): CP-11-CR-0001488-2016,
                            CP-11-CR-0002020-2016


BEFORE: GANTMAN, P.J., PANELLA, J., and OTT, J.

MEMORANDUM BY PANELLA, J.                            FILED AUGUST 29, 2018

        Dewayne Lamar Chatman appeals from the order entered in the

Cambria County Court of Common Pleas, which dismissed his petition filed

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

9546. We affirm.

        The relevant facts and procedural history of this case are as follows. On

March 28, 2017, Appellant pleaded guilty to two counts of retail theft. On July

3, 2017, the trial court imposed a sentence of 12 to 84 months’ imprisonment

on the first count of retail theft, and 18 to 84 months’ imprisonment on the

other count. The court ordered these sentences to run consecutively, for an

aggregate sentence of 30 to 168 months’ imprisonment. Appellant did not file

a direct appeal. However, he filed a timely pro se PCRA petition on July 24,

2017.
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       After the PCRA court appointed counsel, Appellant filed an amended

petition. In that petition, Appellant alleged ineffective assistance of guilty plea

counsel. Specifically, Appellant averred that guilty plea counsel promised him

that his sentences would run concurrently or that he would receive a

probationary sentence. As Appellant did not receive concurrent sentences, he

argues his guilty plea was unknowingly entered and involuntarily induced.

       The PCRA court held hearings on Appellant’s claims. Appellant testified

that Attorney Schaffer represented him during his guilty plea and sentencing

proceedings. See N.T., PCRA Hearing, 9/7/17, at 4. Appellant claimed

Attorney Schaffer assured him he would receive either a probationary

sentence or concurrent sentences if he pled guilty. See id., at 5-6. Based

upon these assurances, Appellant entered into his guilty plea. See id.

Appellant did not provide any additional evidence in support of his claims.

       In response, Attorney Schaffer confirmed that she represented

Appellant through his guilty plea negotiations and sentencing. See id., at 11-

12. However, while she admitted to promising Appellant she would push for

concurrent sentencing, she claimed she did not promise him he would receive

concurrent sentences because that decision was within the hands of the

judge.1 See id., at 14. Further, Attorney Schaffer denied promising the


____________________________________________


1 In fact, the sentencing transcript shows that Attorney Lovelette, standing in
for Attorney Schaffer, did ask the sentencing court to impose concurrent
sentences at the sentencing hearing. See N.T., Sentencing, 7/3/17, at 3.
However, the trial court did not grant this request. See id., at 4-5.

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possibility of a probationary sentence because a probationary sentence was

not within Appellant’s standard sentencing guidelines. See id., at 13.

      Following this hearing, the PCRA court denied Appellant’s petition. This

timely appeal follows.

      Appellant presents the following question for our review.

      1. The [t]rial [c]ourt erred in denying Appellant’s PCRA [p]etition,
         because the Appellant did not enter a plea in a knowing and
         competent manner based on his testimony that he was not
         properly advised by his prior counsel of the length of the
         sentence he would receive per his plea (the Appellant believed
         would receive concurrent sentences).

Appellant’s Brief, at 4.

      “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.” Commonwealth v.

Edmiston, 65 A.3d 339, 345 (Pa. 2013) (citation omitted). The PCRA court’s

findings will not be disturbed unless the certified record lacks support for the

findings. See Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super.

2001). “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)

(citation omitted).

            In order to be eligible for PCRA relief, the petitioner must
      prove by a preponderance of the evidence that his conviction or
      sentence resulted from one or more of the enumerated
      circumstances found in Section 9543(a)(2), which included the
      ineffective assistance of counsel.


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             It is well-established that counsel is presumed effective, and
      to rebut that presumption, the PCRA petitioner must demonstrate
      that counsel’s performance was deficient and that such deficiency
      prejudiced him. To prevail on an ineffectiveness claim, the
      petitioner had the burden to prove that (1) the underlying
      substantive claim has arguable merit; (2) counsel whose
      effectiveness is being challenged did not have a reasonable basis
      for his or her actions or failure to act; and (3) the petitioner
      suffered prejudice as a result of counsel’s deficient performance.
      The failure to satisfy any one of the prongs will cause the entire
      claim to fail.

Commonwealth v. Benner, 147 A.3d 915, 919-920 (Pa. Super. 2016)

(quotation marks and citations omitted).

      Allegations of counsel’s ineffectiveness during the guilty plea process

are cognizable under the PCRA. See Commonwealth v. Hickman, 799 A.2d

136, 141 (Pa. Super. 2002). However, “[a]llegations of ineffectiveness in

connection with the entry of a guilty plea will serve as the basis for relief only

if the ineffectiveness caused the defendant to enter an involuntary or

unknowing plea.” Commonwealth v. Allen, 833 A.2d 800, 802 (Pa. 2003)

(citation omitted).

      Appellant’s claim rests upon his contention that Attorney Schaffer

promised that his sentences would run concurrently or that he would receive

a probationary sentence. Attorney Schaffer denied making any such promise.

Instead, Attorney Schaffer claimed that she only promised Appellant she

would try to get him a lesser sentence, but that his ultimate sentence rested

in the hands of the sentencing court.




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      In ruling against Appellant, the PCRA court accepted counsel’s testimony

as credible and accurate and squarely rejected Appellant’s version of events.

See PCRA Court’s Opinion, 11/21/17, at 6. The record supports this credibility

determination. Thus, we are bound by that finding. See Anderson, 995 A.2d

at 1189.

      Appellant has failed to demonstrate that there is arguable merit to the

underlying claim of ineffectiveness. Therefore, we find no basis upon which to

conclude that ineffective assistance of counsel caused him to involuntarily

enter into a guilty plea.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/29/2018




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