J-S77035-16


NON -PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA,                 1   IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                             Appellee

                        v.

GREGORY MAURICE WYATT,

                             Appellant                  No. 1982 MDA 2015


                 Appeal from the PCRA Order October 13, 2015
               in the Court of Common Pleas of Dauphin County
               Criminal Division at No.: CP- 22 -CR- 0003361 -2013


BEFORE:     PANELLA, J., OLSON, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                              FILED OCTOBER 24, 2016

        Appellant, Gregory Maurice Wyatt, appeals, pro se, from the order of

October 13, 2015, which dismissed, without        a   hearing, his first counseled

petition brought under the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A.

§§ 9541 -9546. We affirm.

        We take the underlying facts and procedural history in this matter

from the PCRA court's July 6, 2016 opinion and our independent review of

the certified record.

        The facts underlying Appellant's conviction stem from his May 27,

2013 murder and robbery of an acquaintance.                (See N.T. Guilty Plea

Hearing, 6/02/14, at 8 -9).       On July 26, 2013, the Commonwealth filed a



*   Retired Senior Judge assigned to the Superior Court.
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criminal information charging Appellant with murder, robbery, possession of

a   firearm prohibited, and carrying               a   firearm without    a    license.'   (See

Criminal Information, 7/26/13, at unnumbered page 1).                         On June 2, 2014,

Appellant entered       a    negotiated guilty plea to one count each of murder of

the third degree, robbery, possession of               a   firearm prohibited, and carrying     a


firearm without     a       license.     (See N.T. Guilty Plea Hearing, at 10).                In

accordance with the terms of the plea, the trial court immediately sentenced

Appellant to an aggregate term of incarceration of not less than twenty -five

nor more than fifty years. (See id. at 14 -15).

       On June 12, 2014, Appellant filed a motion to                withdraw his guilty plea.

A hearing     took place on July 11, 2014. At the hearing, Appellant indicated

that, when he filed the motion to withdraw his guilty plea to murder of the

third degree, he did not understand that the information had charged him

with murder generally, and that, if he withdrew his guilty plea, he would

expose himself to charges including murder of the first or second degree.

(See N.T. Motion Hearing, 7/11/14, at 6 -7).                   Based upon this information,

Appellant withdrew his motion to withdraw his guilty plea.                      (See id. at 7).

Appellant did not file       a   direct appeal.

       On June 1, 2015, Appellant, acting pro se, filed a               timely   PCRA   petition.

On June 29, 2015, the PCRA court appointed counsel to represent Appellant.


' See    18    Pa.C.S.A.         §§    2502, 3701(a)(1)(i) and (ii), 6105(a)(1), and
6106(a)(1), respectively.


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On July 21, 2015, PCRA counsel submitted a            Turner/Finley2 letter.         On

September 4, 2015, the PCRA court issued notice of its intent to dismiss the

petition and allow PCRA counsel to withdraw, pursuant to Pennsylvania Rule

of Criminal Procedure 907(1).       Appellant did not file    a   response to the Rule

907 notice but did file   a   motion seeking appointment of new counsel, which

the PCRA court denied.          On October 13, 2015, the PCRA court dismissed

Appellant's PCRA   petition.3


      The instant, timely appeal followed. On December 29, 2015, the PCRA

court ordered Appellant to file     a   concise statement of errors complained of

on appeal.    See Pa.R.A.P. 1925(b).        Appellant filed   a   timely Rule 1925(b)

statement on January 15, 2016. On July 6, 2016, the PCRA court issued an

opinion. See Pa.R.A.P. 1925(a)

      On appeal, Appellant raises the following questions          for our review.




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

3 In its October 13, 2015 order, the trial court did not address counsel's
petition to withdraw.    (See Order, 10/13/15, at unnumbered page 1).
However, in its Rule 907 notice, the trial court specifically found that counsel
had complied with the dictates of Turner/Finley and announced its
intention to allow counsel to withdraw.            (See Order, 9/04/15, at
unnumbered page 1). Given this, in the interest of judicial economy we will
regard as done what ought to have been done and deem the trial court's
September 4, 2015 order as granting counsel's petition to withdraw. See
Zitney v. Appalachian Timber Products, Inc., 72 A.3d 281, 285 (Pa.
Super. 2013).



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         1. Whether the [PCRA] court erred for dismissing Appellant's
         [PCRA petition] based on counsel's [Turner/Finley] letter,
         when Appellant's claims had merit and the trial court failed to
         make an independent review of the record[,] which violated
         the mandates of [Turner/Finley]?

         2. Whether the [PCRA] court erred for dismissing Appellant's
         [PCRA petition] based on counsel's [Turner/Finley] letter,
         when Appellant's claim not only had merit but the [PCRA]
         court failed to conduct [an] evidentiary hearing to determine
         if Appellant's [guilty] plea was invalid and undermined by
         counsel's erroneous advice[ ?]

(Appellant's Brief, at 5) (unnecessary capitalization   omitted).4

      Appellant appeals from the denial of his first PCRA petition. We review

the denial of   a   post- conviction petition to determine whether the record

supports the PCRA court's findings and whether its order      is   otherwise free of

legal error. See    Commonwealth v. Faulk,     21 A.3d 1196, 1199 (Pa. Super.




4 We direct Appellant's attention to Pa.R.A.P. 2119, which addresses the
requirements for the argument section of appellate briefs and provides, in
relevant part as follows:
      Rule 2119. Argument

              (a)  General Rule. The argument shall be divided into
              as many parts as there are questions to be argued[.]

Pa.R.A.P. 2119(a). "The Rules of Appellate Procedure state unequivocally
that each question an appellant raises is to be supported by discussion and
analysis of pertinent authority." Estate of Haiko v. McGinley, 799 A.2d
155, 161 (Pa. Super. 2002). Here, Appellant's "Statement of Matters" lists
two issues. (Appellant's Brief, at 5). However, the argument portion of his
brief combines the issues in violation of Rule 2119. (See id. at 14 -18).
Appellant's combination of issues presents a confusing format, but does not
hamper appellate review, and we shall proceed with our discussion.



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2011).       To be eligible for relief pursuant to the PCRA, Appellant must

establish,    inter a /ia,    that his conviction or sentence resulted from one or

more of the enumerated errors or defects found                           in   42   Pa.C.S.A.   §


9543(a)(2).        See 42 Pa.C.S.A.        §   9543(a)(2).       He must also establish    that

the issues raised in the PCRA petition have not been previously litigated or

waived. See 42 Pa.C.S.A.            §   9543(a)(3). An allegation of error "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). Further,

               .   .   . petitioner is not automatically entitled to an
                           a PCRA
      evidentiary hearing.    We review the PCRA court's decision
      dismissing a petition without a hearing for an abuse of
      discretion.

                     [T]he right to an evidentiary hearing on a post -
               conviction petition is not absolute. It is within the
               PCRA court's discretion to decline to hold a hearing if
               the petitioner's claim is patently frivolous and has no
               support either in the record or other evidence. It is
               the responsibility of the reviewing court on appeal to
               examine each issue raised in the PCRA petition in
               light of the record certified before it in order to
               determine if the PCRA court erred in its
               determination that there were no genuine issues of
               material fact in controversy and in denying relief
               without conducting an evidentiary hearing.

Commonwealth v. Miller, 102 A.3d 988, 992                        (Pa. Super. 2014) (citations

omitted).

      In the argument section of his brief, Appellant claims he received

ineffective assistance of plea counsel because counsel gave him erroneous


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advice that the trial court would only sentence him to          a   term of incarceration

of not less than fifteen nor more than thirty years. (See Appellant's Brief, at

17).      Appellant also    appears to contend         that he was coerced into

withdrawing     his   motion    to   withdraw    his       guilty    plea   because   the

Commonwealth threatened to charge him with murder of the first degree.

(See Appellant's Brief, at 17). However, Appellant has waived these claims.

       Appellant did not include these claims in his statement of the questions

involved.    (See Appellant's Brief, at 8).     The Rules of Appellate Procedure

provide that issues to be resolved must be included in the statement of

questions involved or "fairly suggested" by it.            Pa.R.A.P. 2116(a).      These

issues are not included in the statement of questions involved, nor are they

"fairly suggested" by it.      Thus, we hold that Appellant has waived these

claims.     See Commonwealth v. Harris, 979 A.2d 387, 397 (Pa. Super.

2009) (holding claim waived when not included in statement of questions

involved). In any event, the claims lack merit

       "A criminal defendant has the right to effective counsel during            a   plea

process as well as during trial."      Commonwealth v. Rathfon, 899 A.2d
365, 369 (Pa. Super. 2006) (citation omitted).               Further, "[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." Commonwealth v. Hickman, 799 A.2d

136, 141 (Pa. Super. 2002) (citation omitted). Also, "[w]here the defendant


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enters his plea on the advice of counsel, the voluntariness of the plea

depends upon whether counsel's advice was within the range of competence

demanded of attorneys in criminal cases."         Id. (internal quotation marks   and

citations omitted).

      We presume that counsel is effective, and Appellant bears the burden

to prove otherwise.        See Commonwealth v. Bennett, 57 A.3d 1185, 1195

(Pa. 2012). The test for ineffective assistance of counsel is the same under

both the Federal and Pennsylvania Constitutions.                See Strickland v.

Washington, 466            U.S. 668, 687 -88 (1984);    Commonwealth v. Jones,
815 A.2d 598, 611 (Pa. 2002). An appellant must demonstrate that: (1) his

underlying claim      is   of arguable merit; (2) the particular course of conduct

pursued   by counsel did not have some               reasonable basis designed to

effectuate his interests; and (3) but for counsel's ineffectiveness, there        is a

reasonable probability that the outcome of the proceedings would have been

different. See Commonwealth v. Pierce, 786 A.2d 203, 213 (Pa. 2001),

abrogated on other grounds, Commonwealth v. Grant, 813 A.2d 726 (Pa.

2002).    A   failure to satisfy any prong of the test for ineffectiveness will

require rejection of the claim. See Jones, supra at 611. Where, as here,

Appellant pleaded guilty, in order to satisfy the prejudice requirement, he

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." Rathfon, supra at 370 (citation omitted).           Here, Appellant has not


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shown that there is arguable merit to his claim that he received erroneous

advice from counsel with respect to the prospective sentence.

      We have held that where the record clearly shows that the court

conducted       a       thorough    guilty plea    colloquy and     that the defendant

understood his rights and the nature of the charges against him, the plea is

voluntary.      See Commonwealth v. McCauley, 797 A.2d 920, 922 (Pa.

Super. 2001).           In examining whether the defendant understood the nature

and consequences of his plea, we look to the              totality of the circumstances.

See id.        At   a   minimum, the trial court must inquire into the following six

areas:

         (1)    Does the defendant understand the nature of the charges
                to which he is pleading guilty?

         (2)    Is there    a   factual basis for the plea?

         (3)    Does the defendant understand that he has               a    right to trial
                by jury?

         (4)    Does the defendant understand                 that he       is   presumed
                innocent until he is found guilty?

         (5)    Is the defendant aware of the permissible ranges of
                sentences and /or fines for the offense charged?

         (6)    Is the defendant aware that the judge is not bound by the
                terms of any plea agreement tendered unless the judge
                accepts such agreement?

Id. (citation omitted); see also           Pa.R.Crim.P. 590, Comment.

         Defense counsel or the attorney for the Commonwealth, as permitted

by the court, may conduct this examination.                       See Pa.R.Crim.P. 590,


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Comment.       Moreover, the examination may consist of both                    a       written

colloquy that the defendant read, completed, and signed, and made                   a   part of

the record; and an on- the -record oral examination. See id.

        Appellant contends that he received erroneous advice from counsel

that the trial court would sentence him to        a    term of incarceration of not less

than fifteen nor more than thirty years.               (See Appellant's Brief, at 17).

However, the record does not support this assertion.

        At the plea hearing, the Commonwealth informed Appellant of the

maximum possible for sentence for each offense, and Appellant agreed that

he    understood them.      (See N.T. Guilty Plea Hearing, at                3 -5).        The

Commonwealth       specifically     stated     that,       under   the   negotiated        plea

agreement, the trial court would sentence Appellant to an aggregate term of

incarceration of not less than twenty -five nor more than fifty years.                    (See

id. at 7). Appellant agreed that he understood that. (See id.).                 Following

sentencing, the trial court asked if the sentence was in accord with the

negotiated plea, defense counsel said it was, and Appellant did not object to

this statement. (See id. at 14 -15).

        On July 11, 2014, the     trial court held     a   hearing on Appellant's motion

to withdraw his guilty plea.       At no point during that hearing did Appellant

object to his sentence or indicate that plea counsel had misled him with

respect to his sentence. (See N.T. Motion Hearing, at 2 -10). Further, there

is   nothing in the record which demonstrates that the Commonwealth coerced


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Appellant into withdrawing his motion to withdraw his guilty plea.                Rather,

the Commonwealth specifically stated that it had "no objection" to Appellant

withdrawing the guilty plea.         (See id. at 2).         Defense counsel then stated

that he had explained to Appellant that if he withdrew his guilty plea, the

Commonwealth would pursue            a   charge of murder of the first degree.        (See

id. at 3). When questioned, Appellant affirmatively stated that he wished to

withdraw his motion because he had not previously understood that he could

be facing charges of murder of the             first or second degree. (See id. at 7).

Thus, Appellant's claims that he received incorrect advice from counsel with

respect to his sentence and that he was threatened and /or coerced into

withdrawing his motion to withdraw his guilty plea lack merit.

       Moreover,    the    record demonstrates that,             in   the totality of the

circumstances,     Appellant's       guilty     plea   was     voluntary,   knowing   and

intelligent.   Appellant, after being informed of all his rights, stated that he

wished to plead guilty.            (See N.T. Guilty Plea Hearing, at 7).               He

acknowledged at the plea colloquy that he understood that he was giving up

his right to trial by      jury or by the court sitting           as the finder of fact;

relinquishing his right to file pre -trial motions; and knew the sentencing

ranges. (See id. at       3 -7).   He stated    that no one forced or threatened him.

(See id. at 8).     Appellant agreed that he understood that the trial court

could sentence him to consecutive sentences and that he would have limited

appellate rights. (See id. at 4 -7).


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       The statements made during        a   plea colloquy bind   a   criminal defendant.

See Commonwealth v. Muhammad, 794 A.2d 378, 384 (Pa. Super.

2002).     Thus,   a   defendant cannot assert grounds for withdrawing the plea

that contradict statements made at that time.                 See Commonwealth v.

Stork, 737 A.2d 789, 790 -91          (Pa. Super. 1999), appeal denied, 764 A.2d

1068 (Pa. 2000).         Further, "[t]he law does not require that appellant be

pleased with the outcome of his decision to enter         a   plea of guilty: 'All that is

required    is   that [appellant's]    decision to     plead    guilty be knowingly,

voluntarily and intelligently made.      '    Commonwealth v. Yager, 685 A.2d
1000, 1004 (Pa. Super. 1996) (en banc), appeal denied, 701 A.2d 577 (Pa.

1997) (citation omitted).       Here, there is nothing on the record to support

Appellant's contention that his plea was either coerced or invalid.                  See

McCauley, supra at 922.            Thus, his claim that he received ineffective

assistance of plea counsel lacks merit. See Jones, supra at 611.

       Appellant also argues that the PCRA court erred in dismissing his

petition without an evidentiary hearing.          (See Appellant's Brief, at 5, 18).

The Pennsylvania Rules of Criminal Procedure provide the PCRA court with

the discretion to dismiss     a PCRA   petition without an evidentiary hearing if it

is   patently without merit.      See Pa.R.Crim.P. 907.            Because Appellant's

ineffective assistance of counsel claims lack merit, the PCRA court properly

found that he was not entitled to an evidentiary hearing. See Miller, supra

at 992.
J-S77035-16


        Accordingly, for the reasons discussed above, we affirm the PCRA

court's dismissal of Appellant's PCRA petition without   a   hearing.

        Order affirmed.



Judgment Entered.



    /
J   seph D. Seletyn,
Prothonotary


Date: 10/24/2016




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