J-S01044-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA               :          IN THE SUPERIOR COURT OF
                                           :
           v.                              :
                                           :
CHAD HEATH MILLER,                         :
                                           :
                  Appellant                :               No. 1344 MDA 2016

                  Appeal from the PCRA Order July 13, 2016
                in the Court of Common Pleas of York County,
              Criminal Division, No(s): CP-67-CR-0009185-2012

BEFORE: GANTMAN, P.J., DUBOW and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                             FILED MARCH 28, 2017

     Chad Heath Miller (“Miller”) appeals from the Order denying his first

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

See 42 Pa.C.S.A. §§ 9541-9546.      Additionally, Miller’s counsel, William H.

Graff, Jr., Esquire (“Attorney Graff”), has filed a Petition to Withdraw as

Counsel,   and    an     accompanying     “no     merit”     letter   pursuant    to

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

Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). We

grant Attorney Graff’s Petition to Withdraw as Counsel and affirm the Order.

     In October 2012, Miller, James Herlth (“Herlth”), Robert Dale Young

(“Young”), and Jacob Dittenhafer participated in the unlawful entry of the

home of Douglas Downs (“Downs”), located in Chanceford Township, York

County based upon their belief that Downs was involved in illegal activity

and had a large sume of money in the home. Downs lived in the home with
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his personal care nurse, Andrew Boyd (“Boyd”). Miller and Herlth entered

the home carrying firearms, and demanded to know the location of Downs’s

safe. Downs directed Miller to the basement. Miller and Boyd went to the

basement while Herlth held Downs at gunpoint.            At one point, Downs and

Herlth struggled for control of Herlth’s gun, after which Herlth retained

control of the gun and told Downs to stop or he would shoot Downs.

Thereafter,      when     Herlth    became     distracted,   Downs     retrieved   a

semiautomatic .380 caliber pistol from his recliner and shot Herlth in the

chest. Downs then shot Herlth multiple times and Herlth fell to the floor. At

this time, Miller came upstairs and fired his gun at Downs. Downs returned

fire and then retreated to retrieve a second firearm.             Miller summoned

Young from outside to help remove Herlth from the home.               The four men

then fled the home. Herlth was later taken to the hospital to be treated for

wounds to his chest, hands and neck.

      Miller was subsequently arrested and charged with numerous crimes,

including,    inter   alia,   criminal   attempt   (homicide),   burglary,   robbery,

aggravated assault, criminal trespass, and firearms carried without a license.

On January 10, 2014, Miller entered an open guilty plea to burglary,

robbery, and aggravated assault, in exchange for the withdrawal of the

remaining charges. On February 28, 2014, the trial court sentenced Miller to

an aggregate prison term of 15½ to 31 years in prison. Miller did not file a

direct appeal.



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     On May 7, 2014, Miller filed a pro se PCRA Petition. The PCRA court

appointed Miller counsel, who filed a supplemental PCRA Petition. The PCRA

court then issued a Pennsylvania Rule of Criminal Procedure 907 Notice.

Miller filed a Response, after which the PCRA court denied the Petition.

Miller filed a timely Notice of Appeal and a court-ordered Pennsylvania Rule

of Appellate Procedure 1925(b) Concise Statement.

     Prior to addressing Miller’s claim on appeal, we must address Attorney

Graff’s Petition to Withdraw as Counsel.           Pursuant to Turner/Finley,

independent review of the record by competent counsel is required before

withdrawal on collateral appeal is permitted. See Commonwealth v. Pitts,

981 A.2d 875, 876 n.1 (Pa. 2009). In Pitts, our Supreme Court explained

that such independent review requires proof of

     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;

     4. The PC[R]A court conducting its own independent review of
        the record; and

     5. The PC[R]A court agreeing with counsel that the petition was
        meritless.

Id. (citation and brackets omitted).        Further, our Court has held that the

Supreme   Court   in   Pitts   did    not   expressly   overrule   the   additional




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requirement imposed by this Court in Commonwealth v. Friend, 896 A.2d

607, 615 (Pa. Super. 2006), stating

          that PCRA counsel seeking to withdraw contemporaneously
          forward to the petitioner a copy of the application to withdraw
          that includes (i) a copy of both the “no-merit” letter, and (ii) a
          statement advising the PCRA petitioner that, in the event the
          trial court grants the application of counsel to withdraw, the
          petitioner has the right to proceed pro se, or with the assistance
          of privately retained counsel.

Commonwealth v. Widgins, 29 A.3d 816, 818 (Pa. Super. 2011).

          Here, in the Turner/Finley “no-merit” letter, Attorney Graff described

the extent of his review, identified the issues that Miller sought to raise, and

explained why the issues lacked merit. In addition, Attorney Graff provided

Miller with notice of his intention to seek permission to withdraw from

representation, a copy of the Turner/Finley letter, and advised Miller of his

rights in lieu of representation. Thus, we conclude that Attorney Miller has

substantially complied with the requirements necessary to withdraw as

counsel.      See Commonwealth v. Karanicolas, 836 A.2d 940, 947 (Pa.

Super. 2003) (holding that substantial compliance with requirements to

withdraw as counsel will satisfy the Turner/Finley criteria).            We now

independently review Miller’s claims to ascertain whether they entitle him to

relief.

          In the Turner/Finley letter, Attorney Graff raises the following

question for our review:

          Whether the [PCRA] court erred in [denying Miller’s PCRA]
          Petition … pursuant to Rule 907 of the Pennsylvania Rules of


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      Criminal Procedure in its determination that there are no genuine
      issues of material fact regarding [Miller’s] trial counsel’s pretrial
      advice to not file any pretrial motions nor to accept the
      Commonwealth’s negotiated plea offer?

Turner/Finley Letter at 6. Miller did not file a response.

           Our standard of review of an order denying PCRA relief is
      whether the record supports the PCRA court’s determination, and
      whether the PCRA court’s determination is free of legal error.
      The PCRA court’s findings will not be disturbed unless there is no
      support for the findings in the certified record.

Commonwealth v. Brown, 143 A.3d 418, 420 (Pa. Super. 2016) (citations

omitted).

      Miller contends that his plea counsel was ineffective for inducing his

guilty plea. Turner/Finley Letter at 6-8; see also id. at 9 (wherein Miller

argues that plea counsel was ineffective for advising him to reject other plea

agreements prior to the January 2014 plea). Miller also argues that his plea

counsel was ineffective for failing to file pretrial motions, including a

Pa.R.Crim.P. 600 motion and a motion to suppress his statements to the

police. Id. at 8-9. Miller further asserts that plea counsel was ineffective

for failing to file a post-sentence motion for reconsideration of his sentence.

Id. at 9-10.

      To succeed on such an ineffectiveness claim, Miller must demonstrate

by the preponderance of the evidence that

      (1) [the] 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.


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Commonwealth v. Ali, 10 A.3d 282, 291 (Pa. 2010). A petitioner’s failure

to satisfy any prong of the ineffectiveness test requires rejection of the

claim. Commonwealth v. Burno, 94 A.3d 956, 972 (Pa. 2014). Counsel is

presumed to be effective, and the burden is on the appellant to prove

otherwise. Commonwealth v. Watkins, 108 A.3d 692, 702 (Pa. 2014).

             A criminal defendant has the right to effective counsel
      during a plea process as well as during trial. The law does not
      require that appellant be pleased with the outcome of his
      decision to enter a plea of guilty. Instead, the defendant must
      show that counsel’s deficient stewardship resulted in a manifest
      injustice, for example, by facilitating entry of an unknowing,
      involuntary, or unintelligent plea. The voluntariness of the plea
      depends on whether counsel’s advice was within the range of
      competence demanded of attorneys in criminal cases.
      Therefore, allegations of ineffectiveness in connection with the
      entry of a guilty plea will serve as a basis for relief only if the
      ineffectiveness caused appellant to enter an involuntary or
      unknowing plea.

            Our law is clear that, to be valid, a guilty plea must be
      knowingly, voluntarily and intelligently entered. There is no
      absolute right to withdraw a guilty plea, and the decision as to
      whether to allow a defendant to do so is a matter within the
      sound discretion of the trial court. To withdraw a plea after
      sentencing, a defendant must make a showing of prejudice
      amounting to “manifest injustice.” A plea rises to the level of
      manifest injustice when it was entered into involuntarily,
      unknowingly, or unintelligently. A defendant’s disappointment in
      the sentence imposed does not constitute “manifest injustice.”

Commonwealth v. Bedell, 954 A.2d 1209, 1212 (Pa. Super. 2008)

(citations, brackets, and quotation marks omitted).

      In order to ensure a voluntary, knowing, and intelligent plea, trial

courts are required to ask the following questions in the guilty plea colloquy:



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         1)     Does the defendant understand the nature of the charges
                to which he or she is pleading guilty or nolo contendere?

         2)     Is there a factual basis for the plea?

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

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

         5)     Is the defendant aware of the permissible ranges of
                sentences and/or fines for the offenses 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.; see also Pa.R.Crim.P. 590, cmt.             “The guilty plea colloquy must

affirmatively demonstrate that the defendant understood what the plea

connoted and its consequences.” Commonwealth v. Lewis, 708 A.2d 497,

501 (Pa. Super. 1998). “Once a defendant has entered a plea of guilty, it is

presumed that he was aware of what he was doing, and the burden of

proving involuntariness is upon him.” Commonwealth v. Stork, 737 A.2d

789, 790 (Pa. Super. 1999) (citation and internal brackets omitted).        “In

determining whether a guilty plea was entered knowingly and voluntarily, ...

a court is free to consider the totality of the circumstances surrounding the

plea.”        Commonwealth v. Flanagan, 854 A.2d 489, 513 (Pa. 2004)

(citation and internal quotation marks omitted). Furthermore, nothing in the

rule precludes the supplementation of the oral colloquy by a written colloquy

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



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plea proceedings.      Commonwealth v. Morrison, 878 A.2d 102, 108 (Pa.

Super. 2005).

      At the plea colloquy, Miller stated that he understood the English

language, and that he was not under the influence of alcohol or drugs. See

N.T., 1/10/14, at 3; Written Guilty Plea Colloquy, 1/10/14, at 3.                Miller

understood the charges against him, and admitted to the facts that led to

those charges.    See N.T., 1/10/14, at 5-10; Written Guilty Plea Colloquy,

1/10/14, at 4. Miller also stated that by pleading guilty, he understood that

he was foregoing certain rights, including, inter alia, the presumption of

innocence, the right to a jury trial, and most of his direct appeal rights. See

Written Guilty Plea Colloquy, 1/10/14, at 4-6, 8; see also id. at 6 (wherein

Miller additionally acknowledged that by pleading guilty he was surrendering

any right to contest any “procedural or fundamental errors, irregularities, or

unlawful   acts   or    violations   of    your   Constitutional   rights   by     the

Commonwealth personnel in investigating, filing, proceeding with, and

presenting at the trial the charges against you[.]”). Miller affirmed that he

was pleading guilty of his own free will, that no one forced him to plead

guilty, and that he was satisfied with his attorney’s representation.             See

N.T., 1/10/14, at 5; Written Guilty Plea Colloquy, 1/10/14, at 8, 9. Further,

Miller understood that he was entering an open guilty plea and that the trial

court had discretion in imposing the sentence.          See N.T., 1/10/14, at 4;

Written Guilty Plea Colloquy, 1/10/14, at 8.        The trial court also informed



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Miller about the maximum possible sentence for each of the convictions.

See N.T., 1/10/14, at 4-5; Written Guilty Plea Colloquy, 1/10/14, at 6-7.

      Based upon our review of the totality of the circumstances, we

conclude that Miller knowingly and voluntarily entered the guilty plea. Miller

has not argued or demonstrated that plea counsel caused him to tender an

unknowing and involuntary plea. See Bedell, 954 A.2d at 1212. Indeed,

Miller confirmed that he understood the rights he was foregoing by pleading

guilty, including his pretrial rights.    See Commonwealth v. Jones, 929

A.2d 205, 212 (Pa. 2007) (noting that all claims of procedural deficiencies

and all non-jurisdictional defects and defenses are waived by tendering a

guilty plea); see also Commonwealth v. Tareila, 895 A.2d 1266, 1267

(Pa. Super. 2006) (stating that “[t]he entry of a guilty plea constitutes a

waiver of all defects and defenses except lack of jurisdiction, invalidity of the

plea, and illegality of the sentence.”).     Miller also indicated that he was

pleased with the representation of counsel, and stated that no one had

coerced him into pleading guilty.        See Commonwealth v. Muhammad,

794 A.2d 378, 384 (Pa. Super. 2002) (stating that appellant cannot claim

that he involuntarily entered a guilty plea where he stated that no one

threatened him to plead guilty).     In light of the guilty plea colloquy, we

conclude that Miller knowingly waived all of his pretrial claims, and

understood that the trial court had discretion in sentencing him based upon

the entry of this specific open plea. See Commonwealth v. Yeomans, 24



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A.3d 1044, 1047 (Pa. Super. 2011) (stating that a person who elects to

plead guilty is bound by the statements he made during the plea colloquy

and may not later assert grounds for withdrawing the plea which contradict

those statements). Accordingly, Miller knowingly and voluntarily entered the

guilty plea, and his claims of ineffective assistance of plea counsel do not

entitle him to relief.   See Lewis, 708 A.2d at 502 (noting that where the

appellant stated at his colloquy that he was satisfied with counsel’s

representation, appellant’s ineffective assistance of counsel claim was

without merit); Commonwealth v. Shekerko, 639 A.2d 810, 815 (Pa.

Super. 1994) (concluding that because appellant’s plea was knowingly

entered, plea counsel was not ineffective).

      With regard to Miller’s claim that counsel was ineffective for failing to

file a post-sentence motion to reconsider the sentence, we conclude that

such a claim is without merit. Miller has not indicated “what grounds [t]rial

[c]ounsel should have filed any of these motions; therefore[,] his contention

amounts to nothing more than a bald-faced assertion.” PCRA Court Opinion,

7/13/16, at 6.    Nevertheless, we note that at sentencing, the trial court

reviewed a pre-sentence investigation report.    See N.T., 2/28/14, at 3, 7,

11.   It is well-settled that “where the trial court is informed by a pre-

sentence report, it is presumed that the court is aware of all appropriate

sentencing factors and considerations, and that where the court has been so

informed, its discretion should not be disturbed.”       Commonwealth v.



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Ventura, 975 A.2d 1128, 1135 (Pa. Super. 2009); see also id. (noting that

the “sentencing judge can satisfy the requirement that reasons for imposing

sentence be placed on the record by indicating that he or she has been

informed by the pre-sentencing report; thus properly considering and

weighing all relevant factors.”) (citation omitted).   In addition to the pre-

sentence investigation report, the trial court also considered Miller’s

statements and the victim impact statements of Boyd and Downs in

rendering the sentence. N.T., 2/28/14, at 2-11. Based upon our review of

the record, counsel was not ineffective for failing to file a post-sentence

motion where the trial court did not abuse its discretion in imposing the

sentence. See Ventura, supra.

      Upon our independent review of the record, we conclude that the PCRA

Petition is without merit, and that Attorney Graff is entitled to withdraw

under the precepts of Turner/Finley.

      Petition to Withdraw as Counsel granted. Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/28/2017




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