J-S35013-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

SHANE GALLAHAN

                            Appellant                No. 1726 EDA 2014


                   Appeal from the PCRA Order May 20, 2014
             In the Court of Common Pleas of Northampton County
              Criminal Division at No(s): CP-48-CR-0000545-2013
                                          CP-48-CR-0000547-2013


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

MEMORANDUM BY MUNDY, J.:                               FILED JUNE 19, 2015

        Appellant, Shane Gallahan, appeals from the May 20, 2014 order,

dismissing his petition for relief filed pursuant to the Post Conviction Relief

Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546.          Contemporaneously with this

appeal, counsel has requested leave to withdraw in accordance with

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

Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc), and their progeny. After

careful review, we affirm and grant counsel’s petition to withdraw.

        We summarize the relevant factual and procedural background of this

case as follows.      On May 3, 2013, Appellant pled guilty to two counts of


____________________________________________
*
    Retired Senior Judge assigned to the Superior Court.
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stalking1 at docket number CP-48-CR-545-2013 and one count of stalking at

docket number CP-48-CR-547-2013. Pursuant to a plea agreement between

Appellant and the Commonwealth, the trial court immediately imposed a

sentence of one to two years’ imprisonment, plus 16 months’ probation for

each count. The two sentences were to run consecutively to each other, for

a total aggregate sentence of three to six years’ imprisonment, followed by

four years’ probation. Appellant did not file a post-sentence motion with the

trial court or a direct appeal with this Court.

        On January 7, 2014, Appellant filed a timely pro se PCRA petition. The

PCRA court appointed counsel.           The PCRA court conducted an evidentiary

hearing on May 2, 2014. On May 20, 2014, the PCRA court entered an order

dismissing Appellant’s PCRA petition.          On June 9, 2014, Appellant filed a

timely notice of appeal.2

        On appeal, counsel raises the following issues on Appellant’s behalf.

              1.     Whether [t]rial [c]ounsel was ineffective for
                     failing to insure that the guilty plea and
                     sentencing proceedings were in accordance
                     with law and in accordance with the plea
                     agreement[?]

              2.     Whether … [Appellant]’s [p]lea was entered
                     knowingly, voluntarily, and intelligently[?]


____________________________________________
1
    18 Pa.C.S.A. § 2709.1(a)(2).
2
  Appellant and the PCRA court have complied with Pennsylvania Rule of
Appellate Procedure 1925.



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Turner/Finley Brief, Exhibit G at 3.

      Prior to considering Appellant’s issues, we must review PCRA counsel’s

request to withdraw from representation.           Our Supreme Court has

articulated the requirements PCRA counsel must adhere to when requesting

to withdraw, which include the following.

            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[.]

Commonwealth v. Pitts, 981 A.2d 875, 876 (Pa. 2009), quoting Finley,

supra at 215. “Counsel must also send to the petitioner: (1) a copy of the

“no-merit” letter/brief; (2) a copy of counsel’s petition to withdraw; and (3)

a statement advising petitioner of the right to proceed pro se or by new

counsel.” Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa. Super.

2007) (citation omitted).

                  [W]here counsel submits a petition and no-
            merit letter that do satisfy the technical demands of
            Turner/Finley, the court - trial court or this Court -
            must then conduct its own review of the merits of
            the case. If the court agrees with counsel that the
            claims are without merit, the court will permit
            counsel to withdraw and deny relief. By contrast, if
            the claims appear to have merit, the court will deny
            counsel’s request and grant relief, or at least instruct
            counsel to file an advocate’s brief.

Id. (citation omitted).


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      Instantly, we determine that PCRA counsel has complied with the

requirements of Turner/Finley. Specifically, PCRA counsel’s Turner/Finley

letter and petition to withdraw detail the nature and extent of PCRA

counsel’s review, address the claims Appellant raised in his pro se PCRA

petition and at the PCRA hearing, and determine that the issues lack merit.

PCRA counsel provides a discussion of Appellant’s claims, explaining why the

issues are without merit. Additionally, PCRA counsel served Appellant with a

copy of the petition to withdraw and Turner/Finley letter, advising

Appellant that, if PCRA counsel was permitted to withdraw, Appellant had

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

not filed any response. We proceed, therefore, to conduct an independent

merits review of Appellant’s claims.

      We begin by noting our well-settled standard of review. “In reviewing

the   denial   of   PCRA   relief,   we   examine   whether   the   PCRA   court’s

determination is supported by the record and free of legal error.”

Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014) (internal quotation

marks and citation omitted). “The scope of review is limited to the findings

of the PCRA court and the evidence of record, viewed in the light most

favorable to the prevailing party at the trial level.”        Commonwealth v.

Spotz, 84 A.3d 294, 311 (Pa. 2014) (citation omitted).          “It is well-settled

that a PCRA court’s credibility determinations are binding upon an appellate

court so long as they are supported by the record.”           Commonwealth v.


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Robinson, 82 A.3d 998, 1013 (Pa. 2013) (citation omitted). However, this

Court reviews the PCRA court’s legal conclusions de novo. Commonwealth

v. Rigg, 84 A.3d 1080, 1084 (Pa. Super. 2014) (citation omitted).

       The Sixth Amendment to the Federal Constitution provides in relevant

part that, “[i]n all criminal prosecutions, the accused shall enjoy the right …

to have the Assistance of Counsel for his defence.”3 U.S. Const. amend. VI.

The Supreme Court has long held that the Counsel Clause includes the right

to the effective assistance of counsel.          See generally Strickland v.

Washington, 466 U.S. 668, 686 (1984); Commonwealth v. Pierce, 527

A.2d 973, 975 (Pa. 1987).

       In analyzing claims of ineffective assistance of counsel, “[c]ounsel is

presumed effective, and [appellant] bears the burden of proving otherwise.”

Fears, supra at 804 (brackets in original; citation omitted). To prevail on

any claim of ineffective assistance of counsel, a PCRA petitioner must allege

and prove “(1) the underlying legal claim was of arguable merit; (2) counsel

had no reasonable strategic basis for his action or inaction; and (3) the

petitioner was prejudiced—that is, but for counsel’s deficient stewardship,

there is a reasonable likelihood the outcome of the proceedings would have
____________________________________________
3
  Likewise, Article I, Section 9 of the Pennsylvania Constitution states in
relevant part, “[i]n all criminal prosecutions the accused hath a right to be
heard by himself and his counsel ….” Pa. Const. art. I, § 9. Our Supreme
Court has held that the Pennsylvania Constitution does not provide greater
protection than the Sixth Amendment. Commonwealth v. Pierce, 527
A.2d 973, 976 (Pa. 1987).



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been different.”   Commonwealth v. Simpson, 66 A.3d 253, 260 (Pa.

2013). “A claim of ineffectiveness will be denied if the petitioner’s evidence

fails to satisfy any one of these prongs.”     Commonwealth v. Elliott, 80

A.3d 415, 427 (Pa. 2013) (citation omitted).

      Although framed by PCRA counsel as two issues, Appellant essentially

raised four arguments in his PCRA petition and at the PCRA hearing. First,

Appellant argues the sentence the trial court imposed was excessive.

Appellant’s PCRA Petition, 1/7/14, at 3. Appellant also argues that trial

counsel was ineffective for not pursuing an affirmative defense. Id. Third,

Appellant avers that his underlying guilty plea was not knowingly,

voluntarily, or intelligently entered. Turner/Finley Brief, Exhibit G, at 22.

Fourth, Appellant argues plea counsel was ineffective for preventing him

from hiring his own paid attorney. Id. at 19.

      We elect to first address Appellant’s first and third arguments

together. However, before we may reach the merits of either, we must first

ascertain whether they are preserved for our review. In order to be eligible

for relief under the PCRA, the statute requires the petitioner to show the

following by a preponderance of the evidence.

            § 9543. Eligibility for relief

            (a) General rule.--To be eligible for relief under
            this subchapter, the petitioner must plead and prove
            by a preponderance of the evidence all of the
            following:

                                      …

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            (2) That the conviction or sentence resulted from
            one or more of the following:

                                      …

                  (ii) Ineffective assistance of counsel which, in
                  the circumstances of the particular case, so
                  undermined the truth-determining process that
                  no reliable adjudication of guilt or innocence
                  could have taken place.

                  (iii) A plea of guilty unlawfully induced where
                  the circumstances make it likely that the
                  inducement caused the petitioner to plead
                  guilty and the petitioner is innocent.

                                      …

            (3) That the allegation of error has not been
            previously litigated or waived.

                                      …

42 Pa.C.S.A. § 9543(a). An issue is waived under the PCRA “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.”          Id.

§ 9544(b). It is also axiomatic that when a defendant pleads guilty he or

she “waives the right to challenge anything but the legality of his sentence

and the validity of his plea.”   Commonwealth v. Barbaro, 94 A.3d 389,

391 n.2 (Pa. Super. 2014) (citation omitted).

      In the case sub judice, Appellant did not file a direct appeal in this

Court after his guilty plea was entered and his sentence was imposed.

Appellant could have raised the issue of the voluntariness of his plea directly


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in such an appeal, but he did not.     In addition, the record reflects that

Appellant received the exact sentence pursuant to the plea agreement

negotiated with the Commonwealth.      Therefore, Appellant’s challenges to

the validity of his guilty plea and subsequent sentence imposed by the trial

court are deemed waived under the parameters of the PCRA.            See 42

Pa.C.S.A. §§ 9543(a), 9544(b); Barbaro, supra; accord Commonwealth

v. Rachak, 62 A.3d 389, 391 (Pa. Super. 2012), appeal denied, 67 A.3d 796

(Pa. 2013).

     Next, we address Appellant’s argument that plea counsel was

ineffective for interfering with him hiring paid counsel of his choice.

Although the Counsel Clause of the Sixth Amendment includes the right to

hire paid counsel of one’s choice, as noted above, by pleading guilty, a

defendant waives this issue. United States v. Gonzalez-Lopez, 548 U.S.

140, 144 (2006); Barbaro, supra. Furthermore, to the extent this could be

construed as an ineffectiveness claim, Appellant does not explain what

actions or omissions plea counsel committed in order to interfere with his

Sixth Amendment rights.    Appellant testified at the PCRA hearing that he

was in the process of hiring Matthew Potts, Esquire (Attorney Potts) as his

defense counsel. N.T., 5/2/14, at 12. According to Appellant, the trial court

refused to allow him any additional time in order to get the money together

to hire Attorney Potts. Id. Appellant acknowledged that he never actually

paid a retainer to Attorney Potts or otherwise attempted to hire him. Id. at


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14.      This does not reflect any arguable ineffectiveness on the part of

appointed trial counsel.        Based on these considerations, we conclude

Appellant is not entitled to relief on this issue.

      We     next   address   Appellant’s     argument   that    plea   counsel   was

ineffective for not investigating or pursuing an affirmative defense on his

behalf    and   making   sure    the   plea    bargain   was     according   to   law.

Turner/Finley Brief, Exhibit G, at 22; Appellant’s PCRA Petition, 1/7/14, at

3. We note that the PCRA court explained its conclusion as follows.

              During the PCRA hearing, [p]lea [c]ounsel testified
              that he discussed the elements of the crime and
              possible defenses with [Appellant], investigated the
              nature of the evidence against [him], and discussed
              the terms of the closed guilty plea in depth with him.
              Plea [c]ounsel also noted that [Appellant] admitted
              his guilt on the record, apologized to the victim, and
              did not request that [p]lea [c]ounsel file any post-
              sentence motions on his behalf. As such, [p]lea
              [c]ounsel pursued a course of conduct that had some
              reasonable basis designed to effectuate [Appellant]’s
              interests   based    on    the   evidence    and    his
              communications with [Appellant].

PCRA Court Opinion, 5/20/14, at 6.

      After careful review of the certified record, we conclude the record

supports the PCRA court’s findings.           At the PCRA hearing, plea counsel

testified that he met with Appellant and discussed the Commonwealth’s

evidence against him as well as possible defenses.              See generally N.T.,

5/2/14, at 24, 28, 30-31.        Appellant does not specify what affirmative

defense was not discussed or investigated.           Also, Appellant did admit his


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guilt on the record of the offense charged and apologized to the victim.

N.T., 5/3/13, at 14, 25.     This Court has made clear in this context that a

defendant may not contradict these statements as a basis to negate the

guilty plea.   Commonwealth v. Timchak, 69 A.3d 765, 774 (Pa. Super.

2013) (citation omitted); Commonwealth v. Brown, 48 A.3d 1275, 1278

(Pa. Super. 2012) (citation omitted), appeal denied, 63 A.3d 773 (Pa. 2013).

As a result, Appellant is not entitled to relief on this issue.

      Based on the foregoing, we agree with PCRA counsel that Appellant’s

issues lack merit. Accordingly, we grant counsel’s petition to withdraw and

affirm the PCRA court’s May 20, 2014 order dismissing Appellant’s PCRA

petition.

      Order affirmed. Petition to withdraw as counsel granted.

      Judge Platt joins this memorandum.

      Judge Olson concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/19/2015




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