J-A12043-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JEREMY RJ GAVIN                            :
                                               :
                       Appellant               :   No. 1724 WDA 2019


             Appeal from the PCRA Order Entered October 23, 2019,
                  in the Court of Common Pleas of Erie County,
              Criminal Division at No(s): CP-25-CR-0000265-2019.


BEFORE:      KUNSELMAN, J., KING, J., and COLINS, J.*

MEMORANDUM BY KUNSELMAN, J.:                             FILED JUNE 22, 2020

        Jeremy RJ Gavin appeals from the order denying his first petition for

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

§§9541-9546. We affirm.

        The pertinent facts and procedural history are as follows: On April 3,

2019, Gavin entered a negotiated guilty plea to one count of simple assault.

The Commonwealth provided the following factual basis for the plea: “[O]n

or about December 31st, 2018, in the County of Erie, [Gavin] did attempt to

cause, or intentionally, knowingly, or recklessly cause bodily injury to another,

in that [he] did slam [the victim’s] head against the wall and/or strike him

with a closed fist[.]” N.T., 4/3/19, at 8. In exchange, the Commonwealth

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*   Retired Senior Judge assigned to the Superior Court.
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agreed to withdraw a theft charge.1 The trial court then engaged in a brief

colloquy with Gavin and accepted his guilty plea. Id. at 10. At plea counsel’s

request, the trial court immediately proceeded to sentencing. After hearing

from counsel and Gavin, the trial court sentenced Gavin to two years of county

probation. Gavin did not file a post-sentence motion or a direct appeal.

       On June 19, 2019, Gavin filed a pro se PCRA petition in which he claimed

that plea counsel’s ineffectiveness induced him to enter his guilty plea. The

PCRA court appointed counsel, and, on September 18, 2019, PCRA counsel

filed a supplement to Gavin’s petition. On September 26, 2019, the PCRA

court issued a Pa.R.Crim.P. 907 notice of its intention to dismiss Gavin’s PCRA

petition because his claim that he entered an invalid plea was refuted by the

record. Gavin did not file a response. By order entered October 23, 2019,

the PCRA court dismissed Gavin’s PCRA petition. This timely appeal followed.

Both Gavin and the PCRA court have complied with Pa.R.A.P. 1925.

       Gavin now raises the following issue:

          A. Whether [Gavin’s] entry of guilty pleas [sic] was the
             direct product of ineffective assistance of counsel in that
             [plea] counsel dismissed evidence displaying that
             [Gavin] lacked any criminal culpability in regard to the
             incident in that the alleged victim had issued written
             statements admitting that he was the instigator of the
             assault and that [Gavin] did not commit any criminal
             conduct relevant to the incident at issue and this was
             then further compounded by [plea] counsel representing
             to [Gavin] that if he entered the guilty pleas [sic] he
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1 The Commonwealth originally charged Gavin with taking a cell phone and
other items from the victim.


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              would not have to spend any more time incarcerated and
              that he would not face any further sanctions including
              probation or revocation?

Gavin’s Brief at 2 (excess capitalization omitted).2

       Our scope and standard of review is well settled:

          In PCRA appeals, our scope of review is limited to the
          findings of the PCRA court and the evidence on the record
          of the PCRA court's hearing, viewed in the light most
          favorable to the prevailing party. Because most PCRA
          appeals involve questions of fact and law, we employ a
          mixed standard of review. We defer to the PCRA court's
          factual findings and credibility determinations supported by
          the record. In contrast, we review the PCRA court's legal
          conclusions de novo.

Commonwealth v. Reyes-Rodriguez, 111 A.3d 775, 779 (Pa. Super. 2015)

(citations omitted).

       Gavin’s claim alleges the ineffective assistance of plea counsel.     To

obtain relief under the PCRA premised on a claim that counsel was ineffective,

a petitioner must establish by a preponderance of the evidence that counsel’s

ineffectiveness so undermined the truth determining process that no reliable

adjudication of guilt or innocence could have taken place. Commonwealth

v. Johnson, 966 A.2d 523, 532 (Pa. 2009).                  “Generally, counsel’s

performance is presumed to be constitutionally adequate, and counsel will

only be deemed ineffective upon a sufficient showing by the petitioner.” Id.
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2 Within his argument, Gavin makes additional claims that plea counsel was
ineffective for failing to share discovery with him and for failing to file a
requested appeal. Because these claims were not raised in Gavin’s statement
of questions involved, they are waived. See generally, Pa.R.A.P. 2116(a).


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This requires the petitioner to demonstrate that: (1) the underlying claim is

of arguable merit; (2) counsel had no reasonable strategic basis for his or her

action or inaction; and (3) petitioner was prejudiced by counsel's act or

omission. Id. at 533. A finding of "prejudice" requires the petitioner to show

"that there is a reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different." Id.

      This Court has summarized the following regarding claims that the entry

of a guilty plea was the result of ineffective assistance of counsel:

         A criminal defendant has the right to effective counsel
         during a plea process as well as during trial. A defendant is
         permitted to withdraw his guilty plea under the PCRA if
         ineffective assistance caused the defendant to enter an
         involuntary plea[.]

         We conduct our review of such a claim in accordance with
         the three-pronged ineffectiveness test under section
         9543(a)(2)(ii) of the PCRA. 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. Orlando, 156 A.3d 1274, 1280 (Pa. Super. 2017)

(citations omitted).

      In this case, the PCRA court concluded Gavin’s claims that plea counsel

was ineffective, by “dismissing evidence” indicating that he lacked any

criminal culpability and by promising he would be released from jail after

entering his plea, were not a basis for post-conviction relief. Our review of

the certified record, including Gavin’s written and oral colloquies, supports this

conclusion.



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      As this Court has summarized:

         Our law presumes that a defendant who enters a guilty plea
         was aware of what he was doing. He bears the burden of
         proving otherwise.

                                      ***

            The long standing rule of Pennsylvania law is that a
         defendant may not challenge his guilty plea by asserting
         that he lied while under oath, even if he avers that counsel
         induced the lies. A person who elects to plead guilty is
         bound by the statements he makes in open court while
         under oath and may not later assert grounds for
         withdrawing the plea which contradict the statements he
         made at his plea colloquy.

                                      ***

         [A] defendant who elects to plead guilty has a duty to
         answer questions truthfully.     We [cannot] permit a
         defendant to postpone the final disposition of his case by
         lying to the court and later alleging that his lies were
         induced by the prompting of counsel.

Commonwealth v. Pollard, 832 A.2d 517, 523-24 (Pa. Super. 2003)

(citations omitted).

      Gavin’s claims on appeal are unavailing, as both are refuted by our

review of the certified record. First, the notarized statement of the victim,

which stated that he was the instigator of the assault, was dated

approximately one week after Gavin entered his guilty plea.       In addition,

prior to sentencing on the same day Gavin entered his plea, plea counsel

informed the trial court that he was aware of a statement the victim had made:

“The victim in this case is actually a friend of [Gavin].   And [the victim’s]



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actually written a statement on [Gavin’s] behalf, which is kind of one of the

reasons why this was resolved the way it was.” N.T., 4/3/19, at 10.3 This

statement from the victim does not appear anywhere in the certified record.

Thus, it cannot form a basis for post-conviction relief. See Commonwealth

v. Kennedy, 868 A.2d 582, 593 (Pa. Super. 2005) (explaining that, “[a]ny

document which is not part of the official certified record is considered to be

non-existent”).

       Second, Gavin’s claim that plea counsel assured him that he would be

released from the county prison immediately after entering his guilty plea is

contradicted by his statement to the trial court that no promises had been

made to him prior to entering his plea. See N.T., 4/3/19, at 9. Thus, Gavin’s

answer to the court’s questions during the oral plea colloquy, contradict

Gavin’s present claim. Pollard, supra. Thus, Gavin’s explanation that he

only made his statements “for purposes of facilitating the plea agreement

based upon his understanding and expectations borne of” plea counsel’s

representations is not a basis for post-conviction relief. Gavin’s Brief at 12.

       In sum, because Gavin’s claims of ineffectiveness regarding the entry of

his guilty plea are refuted by the record, we affirm the PCRA court’s order

denying him post-conviction relief.



____________________________________________


3 Gavin does not claim he is entitled to post-conviction relief based upon
“after-discovered” evidence. See 42 Pa.C.S.A. § 9543(a)(2)(vi).


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J-A12043-20


     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/22/2020




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