J-S78022-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

JAYRON RAYMOND DUDLEY

                            Appellant                  No. 197 WDA 2016


                  Appeal from the PCRA Order January 7, 2016
               In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0012381-2013


BEFORE: BENDER, P.J.E., OTT, J., and FITZGERALD, J.*

MEMORANDUM BY OTT, J.:                             FILED JANUARY 03, 2017

        Jayron Raymond Dudley appeals from the order entered January 7,

2016, in the Allegheny County Court of Common Pleas, denying his petition

for collateral relief filed pursuant to the Post Conviction Relief Act (“PCRA”).1

Dudley seeks relief from the judgment of sentence of an aggregate term of

three to six years’ imprisonment followed by two years’ probation, imposed

after he entered a guilty plea to charges of possession of firearm with

altered manufacturer’s number,2 tampering with physical evidence,3 and
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
    42 Pa.C.S. §§ 9541-9546.
2
    18 Pa.C.S. § 6110.2(a).
3
    18 Pa.C.S. § 4910.
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related charges.       On appeal, Dudley argues the PCRA court abused its

discretion in denying his claim that plea counsel’s ineffectiveness caused him

to enter an involuntary guilty plea. For the reasons below, we affirm.

        The facts and procedural history underlying this appeal are as follows.

On August 31, 2013, Dudley was arrested in the present case, following

reports of a shooting in the 1300 block of Patterson Avenue in McKeesport,

Pennsylvania. At Docket No. 12381-2013, he was charged with possession

of firearm with altered manufacturer’s number, receiving stolen property,

carrying a firearm without a license, persons not to possess firearms,

tampering with physical evidence, false identification to law enforcement,

and criminal mischief.4        Subsequently, on October 8, 2013, Dudley was

arrested again, after he was found to be in the possession of a firearm

during a car stop. In that case, which is not on appeal, he was charged at

Docket No. 14998-2013, with various firearm offenses, as well as escape.5

Both cases were scheduled for a non-jury trial on March 27, 2014.

        The case at Docket No. 14998-2013 proceeded to trial first, and

following the testimony, the court took the matter under advisement.6 See
____________________________________________


4
  See 18 Pa.C.S. §§ 6110.2, 3925, 6106, 6105(c), 4910, 4914, and
3304(a)(1), respectively.
5
    18 Pa.C.S. § 5121.
6
  Dudley was represented by different attorneys from the public defender’s
office in both cases.




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N.T., 3/14/2014, at 37.        After a short recess, Dudley decided to enter an

open guilty plea at Docket No. 12381-2013, in exchange for which the

Commonwealth withdrew the charge of receiving stolen property.           Dudley

completed both a written and oral colloquy, and affirmatively stated he was

guilty of the crimes charged.          The trial court then entered a verdict at

Docket No. 14998-2013, finding Dudley guilty of only disorderly conduct,

resisting arrest, and criminal mischief, and acquitting him of the more

serious firearms and escape offenses. See N.T., 3/27/2014, at 43.

       The trial court proceeded to sentence Dudley in both cases that same

day. In the present case, at Docket No. 12381-2013, the trial court imposed

a mitigated range sentence of three to six years’ imprisonment for the

charge of possession of firearm with altered manufacturer’s number, a

consecutive term of two years’ probation for tampering with physical

evidence, and a concurrent term of two years’ probation for providing false

identification. At Docket No. 14998-2013, the court imposed two concurrent

terms of two years’ probation on the charges of resisting arrest and false

identification, and ordered them to run consecutively to the probationary

term in the present case.7          No further punishment was imposed on the

remaining charges at either docket.



____________________________________________


7
 As noted above, Dudley’s conviction and sentence at Docket No. 14998-
2013 are not the subject of this appeal.



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       On April 3, 2014, Dudley filed a timely, counseled post-sentence

motion seeking to withdraw his guilty plea.8 After the trial court denied the

motion, Dudley filed a direct appeal, challenging the court’s failure to

conduct a hearing on his post-sentence motion, as well as the court’s

imposition of an illegal sentence on the charge of false identification. In an

unpublished decision, a panel of this Court affirmed his convictions, but

vacated the probationary sentence imposed for false identification.         See

Commonwealth v. Dudley, 120 A.3d 391 [700 WDA 2014] (Pa. Super.

2015) (unpublished memorandum).9

       On March 19, 2015, Dudley filed a timely, pro se PCRA petition,

challenging plea counsel’s ineffectiveness.      PCRA counsel was promptly

____________________________________________


8
  Dudley also filed a pro se post-sentence motion seeking modification of his
sentence. It does not appear the trial court addressed the pro se filing,
presumably because he was represented by counsel at that time. See
Commonwealth v. Williams, ___ A.3d ___, ___, 2016 PA Super 262, *2
(Pa. Nov. 23, 2016) (stating “hybrid representation is not permitted” and
court “will not accept a pro se motion while an appellant is represented by
counsel”).
9
   Specifically, the panel concluded the trial court did not abuse its discretion
in determining Dudley’s motion to withdraw his guilty plea was meritless on
its face. See Commonwealth v. Dudley, 120 A.3d 391 [700 WDA 2014]
(Pa. Super. 2015) (unpublished memorandum at 4-6). However, the panel
agreed Dudley’s two-year probationary term for false identification was
illegal since the crime is graded as a third-degree misdemeanor, punishable
only up to one-year imprisonment. See id. (unpublished memorandum at
6). Because the sentence was imposed concurrently to the probationary
term for resisting arrest, the panel concluded that a remand for resentencing
was unnecessary. See id.




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appointed, and filed an amended petition on August 28, 2015. Following an

evidentiary hearing on October 26, 2015, the PCRA court issued notice of its

intent to dismiss the petition, accompanied by findings of fact and

conclusions of law. Thereafter, on January 7, 2016, the PCRA court entered

an order denying Dudley’s petition for relief. This timely appeal followed. 10

       On appeal, Dudley argues the PCRA court abused its discretion in

denying him collateral relief. Specifically, Dudley asserts his guilty plea was

entered unknowingly and involuntarily because plea counsel threatened

Dudley that if he did not plead guilty to the present charges, the trial court

would find him guilty of the crimes at Docket No. 14998-2013, and impose a

harsher sentence. See Dudley’s Brief at 12. He explains:

       With this atmosphere of hostility from his own attorney, []
       Dudley’s plea was not a voluntary act. His ability to consider his
       option to proceed with a nonjury or jury trial had been replaced
       by his fear of being found guilty of additional felony offenses,
       and facing a longer term of imprisonment.

Id. at 15-16. Furthermore, although Dudley acknowledges he averred in his

written colloquy that he was not threatened or coerced into entering the

plea, he contends the “colloquy answers were themselves motivated by his

being afraid that his plea would not be accepted such that he would be

convicted of more offenses and given more time.”        Id. at 16.   Lastly, he
____________________________________________


10
   Although the PCRA court did not direct Dudley to file a concise statement
of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b), Dudley,
nevertheless, filed a concise statement on March 1, 2016.




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argues counsel had no reasonable basis for failing to protect his right to trial,

and he suffered prejudice “because his waiver of his constitutional right to a

trial was involuntary.” Id. at 18.

      When reviewing an order dismissing a PCRA petition, we must

determine whether the PCRA court’s findings of fact are supported by the

record,     and   whether    its   legal    conclusions    are   free   from     error.

Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014). “Great deference

is granted to the findings of the PCRA court, and these findings will not be

disturbed    unless   they   have     no    support   in   the    certified    record.”

Commonwealth v. Carter, 21 A.3d 680, 682 (Pa. Super. 2011) (citation

omitted).    Moreover, “[t]he PCRA court’s credibility determinations, when

supported by the record, are binding on this Court.”             Commonwealth v.

Spotz, 18 A.3d 244, 259 (Pa. 2011).

      Where, as here, the petitioner alleges the ineffectiveness of prior

counsel in conjunction with a guilty plea, our review is as follows:

      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 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,
      [a]llegations 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

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      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. Willis, 68 A.3d 997, 1001-1002 (Pa. Super. 2013),

quoting Commonwealth v. Wah, 42 A.3d 335, 338 (Pa. Super. 2012)

(citations, quotation, and quotation marks omitted).

      The PCRA court addressed Dudley’s claim, as follows, in its notice of

intent to dismiss the petition:

             [Dudley’s] sole claim is that his guilty plea at [Docket No.
      12381-2013] was unlawfully induced by the ineffective
      assistance of trial counsel Adam Bishop[, Esq.,] based on the
      allegation that Attorney Bishop threatened [Dudley] that if he
      did not plead guilty [to the present charges], the Trial Court
      would find him guilty of all charges at [Docket No. 14998-2013].
      This claim fails because [Dudley] has failed to establish that his
      plea of guilty was unlawfully induced by the ineffective
      assistance of counsel. Specifically, the Trial Court finds that
      Attorney Bishop did not threaten or unlawfully induce [Dudley]
      to plead guilty. At [Dudley’s] evidentiary hearing, Attorney
      Bishop testified that he told [Dudley] that his sentence would be
      closer to the mitigated range if [Dudley] pled guilty [at Docket
      No. 12381-2013], and that proceeding to trial at [Docket No.
      12381-2013] would not help his prospects, sentence-wise, at
      [Docket No. 14998-2013]. The Trial Court finds this testimony
      of Adam Bishop credible, and finds that he did not tell [Dudley]
      that if he did not plead he would be found guilty on the other
      case, but rather that if he pled guilty it would likely lessen his
      sentence on the instant case and the nonjury case.

Notice of Intention to Dismiss, 12/9/2015, at 3 (capitalization in original).

      Our   review   reveals      the   PCRA   court’s    findings   and   credibility

determinations are supported by the record.              During the PCRA hearing,

Dudley testified he wanted to go to trial on the charges sub judice.            N.T.,

10/26/2015, at 12. He claimed, however, counsel told him, “if [he] didn’t



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take a plea, [he] was going to be found guilty on both of [his] cases.” Id.

Dudley stated:

      [Counsel] said I’m not allowed to say this for real. The Judge
      basically implied to him that if I don’t plead guilty on this case
      there’s a high possibility I’m going to be found guilty on both my
      gun cases I had.

Id. at 18.

      Plea counsel testified he told Dudley that if Dudley proceeded to trial

on the second case, counsel “didn’t think it would help his prospects of being

found not guilty in the first case.” Id. at 8. However, on cross-examination,

counsel elaborated:

      Well, I said that I believed that with respect to the sentencing
      aspect that he would receive a mitigated range sentence on my
      case if he pled guilty. And if he pled guilty that I believed that
      he would receive favorable treatment, maybe not with respect to
      the charges, but with respect to the sentence on the second
      case.

Id. at 8-9.

      The PCRA court found counsel’s testimony credible, and we will not

disturb the court’s credibility determination. Spotz, supra, 18 A.3d at 259.

Furthermore, Dudley has failed to establish he was prejudiced by counsel’s

actions. Although we agree he waived his right to a trial via his guilty plea,

he did receive a mitigated range sentence, as counsel predicted, and the

trial court acquitted him of the more serious gun and escape charges at

Docket No. 14998-2013. Dudley does not explain how “but for [counsel’s]

act … the outcome of the proceedings would have been different.” Willis,



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supra, 68 A.3d at 1001 (quotation omitted). Accordingly, we find no relief

is warranted on his claim.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/3/2017




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