J-S39034-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA              :   IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
                                           :
              v.                           :
                                           :
                                           :
 SHAWN DELANEY                             :
                                           :
                    Appellant              :   No. 875 EDA 2019

          Appeal from the PCRA Order Entered February 26, 2019
   In the Court of Common Pleas of Delaware County Criminal Division at
                     No(s): CP-23-CR-0004378-2016


BEFORE:    GANTMAN, P.J.E., STABILE, J., and STEVENS*, P.J.E.

MEMORANDUM BY STEVENS, P.J.E.:                      FILED AUGUST 19, 2019

      Appellant, Shawn Delaney, appeals pro se from the February 26, 2019,

order entered in the Court of Common Pleas of Delaware County denying

Appellant’s first petition filed under the Post Conviction Relief Act (“PCRA”),

42 Pa.C.S.A. § 9541-9546. After a careful review, we affirm.

      The relevant facts and procedural history have been set forth by this

Court previously on direct appeal, in part, as follows:

             On May 26, 2016, at approximately 6:18 p.m., the
      Springfield Township Police Department responded to a home at
      90 Hillview Drive in Springfield Township, Delaware County,
      following reports of shotgun blasts. The police encountered Judith
      Delaney, [Appellant’s] wife, who informed the police that
      [Appellant] was intoxicated and possessed a shotgun. The police
      set up a perimeter around the home and attempted to establish
      crisis negotiations with [Appellant]. [Appellant] fired two shots in
      the direction of the police officers. [Appellant] also repeatedly
      told the officers to shoot him. Following the failure to negotiate
      with [Appellant], the police inserted a tactical robot into the home.


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* Former Justice specially assigned to the Superior Court.
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        At approximately 9:15 p.m., the police observed [Appellant]
        passed out on his bed and subsequently took him into custody.
              [Appellant] was charged with a host of crimes. On February
        10, 2017, [Appellant, who was represented by counsel,] entered
        an open guilty plea to [two counts of aggravated assault and one
        count each of discharge of a firearm in an occupied structure and
        possessing an instrument of crime.1] The trial court sentenced
        [Appellant] to an aggregate sentence of 12 to 24 years in prison,
        followed by six years of probation. [Appellant] filed a timely
        Notice of Appeal. The trial court ordered [Appellant] to file a
        concise statement of errors complained of on appeal pursuant to
        Pa.R.A.P. 1925(b). In response, [Appellant’s counsel] stated that
        he intended to file an Anders brief.

Commonwealth v. Delaney, No. 1627 EDA 2017, *1-2 (Pa.Super. filed

11/16/17) (unpublished memorandum) (footnote added) (footnote omitted).

        On direct appeal, in the Anders brief, counsel averred the trial court

imposed too severe of a sentence upon Appellant.              Concluding the claim

presented a challenge to the discretionary aspects of sentencing, we found

the issue to be waived as Appellant failed to raise the claim at the sentencing

hearing     or   in   a    post-sentence       motion.   Delaney,   supra    (citing

Commonwealth v. Reaves, 592 Pa. 134, 923 A.2d 1119, 1125 (2007);

Commonwealth v. Williams, 787 A.2d 1085, 1088 (Pa.Super. 2010)).

Alternatively, we concluded there was no merit to Appellant’s claim.            See

Delaney, supra. Accordingly, we affirmed Appellant’s judgment of sentence

and permitted counsel to withdraw.             Appellant did not file a petition for

allowance of appeal.


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1   18 Pa.C.S.A. §§ 2702(a)(2), 2707.1(a), and 907(a), respectively.

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       On or about August 22, 2018, Appellant filed a timely pro se PCRA

petition, and the PCRA court appointed counsel, who filed a petition seeking

to withdraw and a Turner/Finley2 “no-merit” letter. On February 5, 2019,

the PCRA court granted counsel’s petition to withdraw and provided Appellant

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

pursuant to Pa.R.Crim.P. 907. On February 19, 2019, Appellant filed a pro se

objection to the notice to dismiss, and on February 26, 2019, the PCRA court

entered an order denying Appellant’s PCRA petition. Appellant filed a timely

pro se notice of appeal.3

       Initially, we note that in reviewing the propriety of the PCRA court’s

dismissal of Appellant’s petition, we are limited to determining whether the

PCRA court’s findings are supported by the record, and whether the order is

free of legal error. Commonwealth v. Allen, 557 Pa. 135, 732 A.2d 582

(1999).

       In his first issue, Appellant contends guilty plea counsel induced him to

plead guilty, and thereafter, counsel was ineffective in failing to seek to

withdraw Appellant’s guilty plea prior to sentencing. Specifically, Appellant



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2 Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).

3 The certified docket entries do not indicate that the PCRA court directed
Appellant to file a Pa.R.A.P. 1925(b) statement; however, the docket entries
reveal Appellant filed a Pa.R.A.P. 1925(b) statement on April 4, 2019. The
PCRA court filed a Pa.R.A.P. 1925(a) opinion on April 8, 2019.

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contends that, prior to the guilty plea hearing, guilty plea counsel informed

him that, if he pled guilty, he would receive a sentence of three years to six

years in prison and/or all sentences would be imposed concurrently.

Appellant’s Brief at 8-9. However, after the plea hearing, counsel informed

Appellant, for the first time, that he could receive a sentence of twelve years

to twenty-four years in prison, which included the possibility of consecutive

sentences. Id.

      Appellant contends that he was induced to plead guilty because of guilty

plea counsel’s erroneous advice.    He further contends that counsel should

have sought to withdraw the guilty plea prior to sentencing, and guilty plea

counsel was ineffective in failing to do so. Id.

      Preliminarily, we note that, regarding Appellant’s allegation that he was

unlawfully induced to plead guilty, a petitioner may obtain relief “where the

circumstances make it likely that the inducement caused the petitioner to

plead guilty and the petitioner is innocent.” 42 Pa.C.S.A. § 9543(a)(2)(iii).

Here, Appellant does not contend that he is innocent of the offenses at issue.

See Commonwealth v. Barndt, 74 A.3d 185, 191 n.9 (Pa.Super. 2013)

(determining that the appellant waived his argument under Section

9543(a)(2)(iii) that his guilty plea was unlawfully induced where he did not

maintain that he is innocent of the crimes charged) (citation omitted)).

      In any event, as the PCRA court relevantly indicated, there is no merit

to Appellant’s claim. Specifically, the PCRA court indicated:


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            Here, [Appellant] argued in his Petition that [guilty plea]
     counsel was ineffective in connection with his open plea because
     he was induced by counsel into believing that a negotiated
     sentence of 3-6 years was in place. However, a review of the
     open guilty plea hearing and [the trial court’s] recollection of the
     situation, entirely rebut this claim. The notes of testimony from
     the open guilty plea on February 10, 2017, [reveal] that
     [Appellant] wished to enter into the open plea to all of the stated
     offenses.    [Guilty plea] counsel and [the trial] court both
     conducted separate thorough and detailed colloquies of
     [Appellant], specifically asking if [Appellant] wanted to enter the
     plea. Th[e] [trial] court asked [Appellant] if anyone forced or
     coerced him into the plea or if he was promised anything as a
     result of the plea, to which [Appellant] answered that he was
     not….[Appellant] [answered affirmatively that he] understood that
     the open plea meant that there was no agreed upon sentence
     between the Commonwealth and his attorney and that th[e] [trial]
     court would have sole discretion in deciding upon the sentence to
     be imposed. [N.T., 2/10/17, at 4].
                                     ***
           Furthermore, at the [commencement] of the sentencing
     hearing, [guilty plea] counsel explained that she was requesting a
     sentence within the 3-6 range, a mitigated sentence. [Guilty plea]
     [c]ounsel explained that she advised [Appellant] of her intention
     to request such a sentence, but, again, that no negotiated plea
     arrangement had been previously tendered to her or her client.
     [N.T., 4/13/2017 p. 4-5].

PCRA Court Opinion, filed 6/13/17, at 5.

     Additionally, at the guilty plea hearing, as well as in the written guilty

plea statement, Appellant was specifically informed that each charge of

aggravated assault carried a maximum penalty of “up to 20 years in prison[,]”

discharging a firearm into an occupied structure carried a maximum penalty

of “up to seven years in prison[,]” and possession of an instrument of crime

carried a maximum penalty of “up to five years in prison[.]” N.T., 2/10/17,

at 10; Guilty Plea Statement, dated 2/10/17. Moreover, guilty plea counsel


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specifically asked Appellant at the guilty plea hearing: “And you understand

and I’ve discussed with you that the combined maximums of 52 years and

$75,000 are on the charges that you are entering into this open guilty plea[?]”

Id. Appellant answered, “Correct.” Id. Appellant confirmed he was pleading

guilty of his own “free will,” and he committed the offenses as set forth in the

affidavit of probable cause. Id.   Accordingly, we agree with the PCRA court

that Appellant is not entitled to relief on his inducement by counsel claim.

      However, this does not end our inquiry as Appellant additionally alleges

that guilty plea counsel was ineffective in failing to seek to withdraw

Appellant’s guilty plea prior to sentencing.

      To establish counsel was ineffective, a PCRA petitioner must prove that

(1) the issue underlying counsel’s act or omission is of arguable merit; (2)

counsel had no reasonable strategic basis for the act or omission; and (3) the

petitioner suffered prejudice.   Commonwealth v. Reyes-Rodriguez, 111

A.3d 775, 780 (Pa.Super. 2015) (en banc). To establish prejudice in this case,

Appellant must prove he would have proceeded to trial but for counsel’s error.

Barndt, 74 A.3d at 192.       We must presume counsel rendered adequate

assistance, and the petitioner bears the burden of proving otherwise. Reyes-

Rodriguez, 111 A.3d at 780.

      Here, in finding no merit to Appellant’s ineffectiveness claim, the PCRA

court relevantly indicated the following:

             [Appellant] now argues that counsel was ineffective for
      failing to request that [Appellant] be allowed to withdraw his guilty

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      plea prior to sentencing.        [Appellant’s] argument is facially
      incorrect. On the day of sentencing, counsel informed th[e] [trial]
      court that [Appellant] wished to withdraw his plea; [Appellant]
      also wrote a letter to th[e] [trial] court which was given to counsel
      in connection with [Appellant’s] wish to withdraw his plea. When
      th[e] [trial] court asked [Appellant] why he wished to withdraw
      his plea, he stated: “because I’m terrified of the sentence.” N.T.,
      4/13/2017, p. 5. Th[e] [trial] court informed [Appellant] that
      [this] was not a [sufficient] reason to be permitted to withdraw
      his plea.

PCRA Court Opinion, filed 6/13/17, at 6.

      We agree with the PCRA court’s sound analysis and conclude, contrary

to Appellant’s averment, that guilty plea counsel explained to the trial court

at the commencement of the sentencing hearing that Appellant desired to

withdraw his guilty plea; however, the trial court denied the request. N.T.,

4/13/17, at 3-5.     Accordingly, guilty plea counsel may not be deemed

ineffective on this basis.

      In his final claim, Appellant contends guilty plea counsel was ineffective

for failing to investigate whether Appellant’s mental health permitted him to

enter a knowingly and voluntary guilty plea. Specifically, Appellant asserts

guilty plea counsel failed to inquire as to the medications Appellant was taking,

as well as to whether he was suffering from depression because of the recent

death of his daughter.

      Here, in finding no merit to Appellant’s ineffectiveness claim, the PCRA

court relevantly indicated the following:

            [Appellant] also argues that [guilty plea] counsel was
      ineffective because she failed to address [Appellant’s] mental
      state at the time of entering the plea, namely that [Appellant] was

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       medicated in order to cope with a recent loss. Again, this
       argument is factually inaccurate. During the open guilty plea,
       counsel had the following exchange with [Appellant]:
              [Guilty Plea Counsel]: “You have no physical,
              emotional, or mental deficit which prevents your
              ability to understand anything that you and I have
              discussed pertaining to your case before [H]is [H]onor
              or pertaining to the document that I have in front of
              you.[4] Correct?
              [Appellant]: “Yes.”
              [Guilty Plea Counsel]: “And you are not under the
              influence of any drugs or alcohol, except for those
              medications which you [sic] are prescribed to you for
              some mental health issues[.] [C]orrect?”
              [Appellant]: “Correct.”
              [Guilty Plea Counsel]: “And those medications, they
              help you think more clearly. Correct?”
              [Appellant]: “Yes.”
       [N.T., 2/10/2017 p. 6].
              There is not a scintilla of evidence to support [the argument]
       that [Appellant] was under the influence of any medication during
       his plea or sentencing that would have adversely affected his
       ability to make a [voluntary] decision nor why [Appellant] failed
       to mention this claim until now. In contrast, the medication
       prescribed to [Appellant] was to enable to [sic] him [to] think
       more clearly. Th[e] [c]ourt clearly recalls that [Appellant] was
       alert and able to comprehend all proceedings. There is no support
       in the record for [Appellant’s] argument that counsel was
       ineffective because she failed to address [Appellant’s] mental
       state at the time of his plea. [Appellant’s] claims are entirely due
       to the fact that he received a sentence that he does not like.

PCRA Court Opinion, filed 6/13/17, at 6-7 (footnote added).




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4 The “document” referred to by guilty plea counsel is a written guilty plea
statement. N.T., 2/10/17, at 5.

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       We agree with the PCRA court’s sound analysis. Appellant is bound by

his statements, which he made in open court under oath. Commonwealth

v. Yeomans, 24 A.3d 1044 (Pa.Super. 2011). Further, we note guilty plea

counsel had in her possession Appellant’s medical records, including his

mental health records, which counsel provided to the trial court during

Appellant’s guilty plea hearing. N.T., 2/10/17, at 17. Additionally, Appellant

signed a written guilty plea statement in which he specifically acknowledged:

              I do not have any physical, emotional or mental problems
       which affect my ability to understand what I am doing today, the
       rights which I have and the rights which I am giving up by pleading
       guilty or nolo contendere, and I am not now under the influence
       of any narcotics, drugs, alcohol or any other substance.
                                           ***
              I am fully satisfied with what my lawyer has done for me in
       the past and what my lawyer is doing for me today concerning
       this case.

Guilty Plea Statement, dated 2/10/17. Accordingly, we agree with the PCRA

court that Appellant is not entitled to relief on his claim of ineffective

assistance of guilty plea counsel.5


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5 To the extent Appellant contends guilty plea counsel was ineffective in failing
to investigate what medication Appellant was taking at the time he committed
his offense, we conclude Appellant has failed to demonstrate he was
prejudiced. Specifically, Appellant has neither pled nor proven that, but for
guilty plea counsel’s omission, he would have proceeded to trial. See Barndt,
supra. Rather, at most, Appellant avers that guilty plea counsel should have
determined Appellant’s mental state at the time he committed the crimes so
that counsel would have been “prepared to defend the [case] had the
Appellant wished to proceed to trial[.]” See Appellant’s Brief at 11.



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       For all of the foregoing reasons, we affirm.

       Affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/19/19




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      In any event, we note that, in the written guilty plea statement,
Appellant indicated:
      I have fully discussed this case with my lawyer, including the facts
      and possible defenses I may have to these charges such as, but
      not limited to:…insanity (at the time the crimes were committed,
      I had a mental disease or defect and, as a result, I was not capable
      of knowing what I was doing or, if I did, I was not capable of
      judging that it was wrong[.]
Guilty Plea Statement, dated 2/10/17. Thus, Appellant is not entitled to relief.


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