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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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.                  :
                                       :
JASON ROBERT HALLETT,                  :         No. 1287 EDA 2013
                                       :
                        Appellant      :


                 Appeal from the PCRA Order, April 24, 2013,
                in the Court of Common Pleas of Bucks County
               Criminal Division at No. CP-09-CR-0001117-2012


BEFORE: FORD ELLIOTT, P.J.E., BOWES AND SHOGAN, JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:FILED DECEMBER 17, 2014

     Appellant appeals from the order denying his first petition filed

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

9546. Finding no error, we affirm.

     On May 14, 2012, appellant pleaded guilty to multiple counts of

possession of a controlled substance (heroin) with intent to deliver,

endangering the welfare of children, and corruption of a minor.         The

endangerment/corruption convictions arose from the fact that appellant

actively employed his two minor daughters in his heroin business.    At the

conclusion of the guilty plea hearing, the court sentenced appellant to an

aggregate term of 6 to 12 years’ imprisonment.

     On May 16, 2012, trial counsel, John Fioravanti, Jr., Esq., filed a

motion for reconsideration of sentence.    At a hearing on the motion on
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September       17,      2012,    upon    the     advice   of    new        counsel,

Keith McAndrews, Esq., appellant withdrew the motion.               New counsel

advised appellant that since he actually wanted to challenge trial counsel’s

effectiveness, he should proceed pursuant to a PCRA petition.

      On October 15, 2012, appellant timely filed a pro se PCRA petition.

On January 16, 2013, the court appointed Stuart Wilder, Esq., as counsel for

appellant. On March 14, 2013, appellant filed an amended, counseled PCRA

petition. A hearing was held on April 11, 2013, and on April 25, 2013, the

PCRA court denied appellant’s petition. This timely appeal followed.

      On appeal, we note that PCRA counsel has filed a “no-merit” brief and

petition   to   withdraw     pursuant    to    Turner-Finley    practice.       See

Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v.

Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).           We must first review

whether counsel has met the requirements for permission to withdraw

pursuant to Turner-Finley. Those requirements are:

                  As set forth above, counsel has filed in this
            Court an Application to withdraw and an appellate
            brief. In Commonwealth v. Pitts, 603 Pa. 1, 981
            A.2d 875 (2009), our Pennsylvania Supreme Court
            stated that

                      [i]ndependent review of the record by
                      competent counsel is required before
                      withdrawal is permitted. Turner, at 928
                      (citing Pennsylvania v. Finley, 481
                      U.S. 551, 558, 107 S.Ct. 1990, 95
                      L.Ed.2d 539 (1987)). Such independent
                      review requires proof of:



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                  1)     A “no-merit” letter by PC[R]A
                         counsel detailing the nature
                         and extent of his review;

                  2)     The “no-merit” letter by
                         PC[R]A counsel listing each
                         issue the petitioner wished to
                         have reviewed;

                  3)     The      PC[R]A       counsel's
                         “explanation”,      in     the
                         “no-merit” letter, of why the
                         petitioner's   issues     were
                         meritless;

                  4)     The PC[R]A court conducting
                         its own independent review
                         of the record; and

                  5)     The PC[R]A court agreeing
                         with counsel that the petition
                         was meritless.

           Pitts, 981 A.2d at 876 n. 1 (quoting Finley, 550
           A.2d at 215).

Commonwealth v. Widgins, 29 A.3d 816, 817-818 (Pa.Super. 2011).

      Additionally, Widgins resurrected from Commonwealth v. Friend,

896 A.2d 607 (Pa.Super. 2006), the requirement that counsel must serve a

copy of the petition to withdraw and no-merit brief on the PCRA petitioner,

and inform the petitioner that if counsel is permitted to withdraw, the

petitioner has the right to proceed pro se or with privately retained counsel.

Widgins, 29 A.3d at 818. We have reviewed counsel’s motion to withdraw

and   no-merit   brief   and   have   found   that   they   comport   with   these




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requirements; thus, our only remaining task is to review appellant’s issues

to determine whether they have merit.

        Appellant raises the following issues on appeal:

              a.    Counsel was ineffective under the Sixth and
                    Fourteenth Amendments to the United States
                    Constitution and Art. I, §9 of the Pennsylvania
                    Constitution for failing to adequately consult
                    with the Defendant following his sentencing
                    about his post-sentence and appellate rights,
                    and specifically about filing a motion to
                    withdraw his guilty plea when he did not
                    receive the sentence his lawyer promised him
                    he would receive, i.e., three to six years
                    incarceration, and the Court failed to advise
                    him of his potential aggregate sentence; and

              b.    Counsel was ineffective under the Sixth and
                    Fourteenth Amendments to the United States
                    Constitution and Art I, §9 of the Pennsylvania
                    Constitution for not filing a motion to withdraw
                    the Defendant's guilty plea when he did not
                    receive a sentence of three to six years, as
                    counsel promised him he would, and the Court
                    failed to advise him of his potential aggregate
                    sentence; and

              c.    Post-sentence counsel was ineffective under
                    the Sixth and Fourteenth Amendments to the
                    United States Constitution and Art I, §9 of the
                    Pennsylvania Constitution for advising the
                    Defendant to withdraw his motion to
                    reconsider or modify sentence, as Defendant
                    could have used that vehicle to press his claim
                    that the sentence imposed was unreasonable.

Turner-Finley brief at 2-3.1




1
    The pages of the brief are unnumbered; this is by our count.


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      Our standard of review for an order denying post-conviction relief is

whether the record supports the PCRA court’s determination, and whether

the PCRA court’s determination is free of legal error.    Commonwealth v.

Franklin, 990 A.2d 795, 797 (Pa.Super. 2010). The PCRA court’s findings

will not be disturbed unless there is no support for the findings in the

certified record. Id.

      Moreover, as appellant’s issues on appeal are stated in terms of

ineffective assistance of counsel, we also note that appellant is required to

make the following showing in order to succeed with such a claim: (1) that

the underlying claim is of arguable merit; (2) that counsel had no reasonable

strategic basis for his or her action or inaction; and (3) that, but for the

errors and omissions of counsel, there is a reasonable probability that the

outcome of the proceedings would have been different. Commonwealth v.

Rivera, 10 A.3d 1276, 1279 (Pa.Super. 2010).       The failure to satisfy any

prong of this test will cause the entire claim to fail.   Commonwealth v.

Daniels, 947 A.2d 795, 798 (Pa.Super. 2008). Finally, counsel is presumed

to be effective, and appellant has the burden of proving otherwise.

Commonwealth v. Pond, 846 A.2d 699, 708 (Pa.Super. 2003).

      In his first claim, appellant contends that counsel failed to adequately

consult with him after sentencing regarding his appellate rights and about

withdrawing his guilty plea.   However, Attorney Fioravanti testified at the

PCRA hearing that he met appellant in his holding cell on the morning of the



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guilty plea and discussed with him the possibility of a guilty plea as well as

appellant’s appellate rights.    (Notes of testimony, 4/11/14 at 55-56.)

Attorney Fioravanti told appellant that following sentencing, it was very

difficult to withdraw a guilty plea. (Id.) Attorney Fioravanti also stated that

in the weeks prior to the plea, he discussed with appellant the possibility of

pleading guilty, and appellant ultimately said he wanted to plead because he

knew what the evidence was.2 (Id. at 55.) Attorney Fioravanti testified that

after the plea, appellant wrote him letters but never asked him to file a

motion to withdraw the plea.        (Id. at 58.)     After the plea hearing,

Attorney Fioravanti instead filed a motion to reconsider sentence upon

appellant’s request. (Id. at 57-58.)

      At the PCRA hearing, appellant claimed that Attorney Fioravanti never

discussed a guilty plea with him, essentially tricked appellant into signing off

on the guilty plea, and that appellant was not even aware that he had

pleaded guilty until he arrived at the state prison. (Id. at 2-8; 27-28.) In

its opinion, the PCRA court specifically found appellant’s account in this

regard to be incredible.   (PCRA court opinion, 11/19/13 at 13.)       We note

that we are bound by the credibility determinations of the court where they

are supported by the record. Commonwealth v. Stewart, 84 A.3d 701,




2
  The Commonwealth possessed a videotape which depicted appellant and
one of his minor daughters participating during one of the heroin sales.
(Notes of testimony, 5/14/12 at 20-21.)


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711    (Pa.Super.   2013),   appeal     denied,      93    A.3d   463    (Pa.    2014).

Consequently, we cannot accept appellant’s account.

       Moreover, during the guilty plea colloquy, the court explained in detail

to appellant the impact of a guilty plea upon his appellate rights. (Notes of

testimony, 5/14/12 at 7-8.) Finally, after imposing appellant’s sentence, the

court explained appellant’s appellate rights to him. (Id. at 49.) Thus, even

if counsel failed to properly advise appellant, he cannot meet the prejudice

prong of the test for ineffectiveness because the trial court explained these

matters to him.     We find that trial/plea counsel was not ineffective in this

regard.

       Next, in the last part of his first issue and in his second issue,

appellant claims that trial counsel was ineffective in failing to file a motion to

withdraw his plea when appellant failed to receive the three to six-year

sentence that counsel promised him he would receive.

       At   the     PCRA     hearing,    appellant        admitted      that     neither

Attorney Fioravanti nor anybody else promised him what his sentence would

be. (Notes of testimony, 4/11/14 at 10.) Attorney Fioravanti also testified

that   he   did   not   promise    appellant   any    sentence.         (Id.    at   56.)

Attorney Fioravanti explained that the Commonwealth had made a three to

six-year plea offer which appellant eventually rejected because he believed

he could do better at trial.      (Id. at 50-54.)    Thus, appellant’s underlying

issue is without merit because he was never promised any particular



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sentence, and there was, therefore, no reason to move to withdraw the plea

on this basis. There is no ineffectiveness here.

      In his final issue, appellant complains that Attorney McAndrews was

ineffective in advising appellant to withdraw his motion for reconsideration of

his sentence. Attorney McAndrews explained at the PCRA hearing that when

he contacted appellant, appellant’s main complaint was that he had a plea

deal under which he was to receive a three to six-year sentence but had not

received that sentence. (Id. at 33-36.) Attorney McAndrews further related

that because the failure to receive a bargained sentence implicated

Attorney Fioravanti’s effectiveness, the PCRA was the proper vehicle to raise

this claim.    (Id. at 39-41.)   It is well settled that issues pertaining to

ineffective assistance of counsel should be raised on collateral review under

the PCRA. Commonwealth v. Grant, 813 A.2d 726 (Pa. 2002). We find

that Attorney McAndrews had a valid strategic reason in advising appellant

to withdraw the motion to reconsider sentence and instead pursue a PCRA

petition.     Appellant cannot satisfy the second prong of the test for

ineffectiveness.

      Finally, the PCRA court noted that at the time of sentencing the court

remarked that “anything less than a 6-year sentence diminishes the

seriousness of what happened.”       (PCRA court opinion, 11/19/13 at 14,

quoting notes of testimony, 5/14/12 at 46.)        Thus, the outcome of the

motion to reconsider sentence would likely not have changed the sentence.



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Appellant cannot meet the third prong of the test for ineffectiveness. There

is no merit to this issue.

      Accordingly, having found no error in the issues raised on appeal, we

will affirm the order below.

      Order affirmed. Counsel permitted to withdraw.



Shogan, J. joins the memorandum.

Bowes, J. concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/17/2014




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