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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :    IN THE SUPERIOR COURT OF
                                          :          PENNSYLVANIA
                    v.                    :
                                          :
MICHAEL DAVON CRADDOCK,                   :        No. 2001 MDA 2016
                                          :
                         Appellant        :


               Appeal from the PCRA Order, November 22, 2016,
                in the Court of Common Pleas of Dauphin County
               Criminal Division at Nos. CP-22-CR-0000145-2013,
              CP-22-CR-0003903-2013, CP-22-CR-0004206-2013,
              CP-22-CR-0004814-2013, CP-22-CR-0005935-2012


BEFORE: OLSON, J., MOULTON, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                FILED AUGUST 29, 2017

        Michael Davon Craddock appeals from the November 22, 2016 order

that dismissed his petition filed pursuant to the Post Conviction Relief Act

(“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. After careful review, we affirm.

        Appellant pled nolo contendere to charges at five docket numbers as

part of a negotiated plea.        At CP-22-CR-0005935-2012, appellant was

charged with manufacturing, delivering, or possessing with intent to

manufacture or deliver drugs and was sentenced to a term of imprisonment

of two to four years.1          Additionally, he was charged with recklessly

endangering another person, using or possessing drug paraphernalia, driving



1
    35 P.S. § 780-113(a)(30).
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while his operating privilege was suspended or revoked, turning movements

and required signals.2 He received no further penalty for these charges.

        At CP-22-CR-0000145-2013, appellant was charged with three counts

of manufacturing, delivering, or possessing with intent to manufacture or

deliver drugs and was sentenced to a term of five to ten years’

imprisonment on each count to be served concurrently.          He also was

charged with criminal use of a communication facility3 but received no

further penalty.

        At CP-22-CR-0003903-2013, appellant was charged with two counts of

robbery, immediate threat of serious bodily injury; two counts of conspiracy;

possession of a firearm prohibited; firearms not to be carried without a

license; four counts of simple assault; recklessly endangering another

person; and making terroristic threats with the intent to terrorize another

person.4     He received three years’ concurrent probation for the robbery

charges and possession of a firearm prohibited and no further penalty on the

other charges.

        At   CP-22-CR-0004206-2013,       appellant   was    charged       with

manufacturing, delivering, or possessing with intent to manufacture or


2
 18 Pa.C.S.A. § 2705, 35 P.S. § 780-113(a)(32), 75 Pa.C.S.A. § 1543(a),
and 75 Pa.C.S.A. § 3334(a), respectively.
3
    18 Pa.C.S.A. § 7512(a).
4
 18 Pa.C.S.A. §§ 3701(a)(1)(i), 903, 6105(a)(1), 6106(a)(1), 2701(a)(1),
2705, and 2706(a)(1), respectively.


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deliver drugs and received a sentence of three years’ probation concurrent

with his other probationary sentences. He was also charged with the use or

possession of drug paraphernalia, two counts of possession of a firearm

prohibited, and receiving stolen property, 18 Pa.C.S.A. § 3925(a).          He

received no further penalty for these convictions.

         At    CP-22-CR-0004814-2013,          appellant   was   charged   with

manufacturing, delivering, or possessing with intent to manufacture or

deliver drugs and received a sentence of three years’ probation concurrent

with his other probationary sentences. He was also charged with conspiracy

and received no further penalty. In total, appellant received an aggregate

sentence of seven to fourteen years’ imprisonment to be followed by

three years’ probation. Appellant received his sentence on June 1, 2015.5

         On February 24, 2016, appellant moved for relief pursuant to the

PCRA.6        His petition focused on his contention that his trial counsel,

Gary Kelley, Esq. (“Attorney Kelley”), was ineffective in that he did not file

any motions for suppression or other pre-trial motions and filed for

continuances without the knowledge or consent of appellant.

         On March 23, 2016, Christopher F. Wilson, Esq. (“Attorney Wilson”),

was appointed to represent appellant.              On July 13, 2016, appellant



5
  Appellant also pled nolo contendere to summary traffic offenses.         That
docket number is not at issue here.
6
    Appellant did not file a direct appeal.


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requested an evidentiary hearing and stated that due to Attorney Kelley’s

ineffectiveness, appellant entered a plea that was not knowing, voluntary,

and intelligently made.     Appellant specifically claimed that Attorney Kelley

did not adequately communicate with him prior to his plea date. Because

appellant did not believe that Attorney Kelley was ready to defend him,

appellant alleged that he entered the plea of nolo contendere. Appellant

also alleged that he was unaware of the guideline sentences for the charges

before he entered a plea.

     The trial court conducted a hearing on November 21, 2016. The trial

court summarized the testimony presented at the hearing:

                 At the PCRA hearing, Chief Deputy District
           Attorney    Jennifer    Gettle    testified for   the
           Commonwealth.        Attorney Gettle testified that
           Attorney Gary Kelley asked her to sit down with him
           and [appellant] to discuss plea negotiations. At such
           meeting, Attorney Gettle recalled that [appellant]
           had many family circumstances and spoke with
           [Gettle] about what he had been doing to change his
           ways while he was in prison. The meeting was
           mostly [appellant] attempting to highlight mitigating
           circumstances regarding his case. Attorney Gettle
           also recalled that [appellant] had been represented
           by both Attorney Kell[e]y and prior counsel,
           Attorney Brian Perry, and [appellant] claimed the
           case had been continued many times without
           [appellant’s] blessing.    Attorney Gettle confirmed
           that [appellant] was ultimately offered a sentence of
           7 to 14 years of imprisonment followed by 3 years of
           probation; she testified that this would be much less
           than what [appellant] could have received if found
           guilty at trial. Specifically, Attorney Gettle noted
           that one of his drug offenses was in the 42 to
           60 month standard range, his robbery offense (just
           on count 1) had a standard range of 30 to


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          42 months, and another drug offense with a 24 to
          50 month range.        There was only so much
          Attorney Gettle could do with the robbery, given the
          circumstances.

                 Attorney Gary Kelley testified next. He stated
          that it was his understanding that he had been
          retained for the purpose of negotiating a plea, and
          that he was seeking to reach a global resolution that
          was acceptable to [appellant].       Attorney Kelley’s
          recollection was that [appellant] was looking for a
          plea, did not prefer to go to trial, and that is what
          ultimately brought them to their meeting with
          Attorney Gettle. Attorney Kelley specifically stated
          that he could have tried any of the dockets had
          [appellant] wanted to proceed, but his instructions
          were to resolve this case via a negotiated plea. It
          did not make sense to try the case if a negotiated
          plea is directed and a meeting is set up [with] the
          DA.     Attorney Kelley also testified that he has
          proposed jury instructions ready to go in all of his
          cases. When this [c]ourt asked Attorney Kell[e]y if
          there was any point in time where [appellant]
          professed his innocence and wanted to take any of
          the dockets [to] trial, the answer was no.
          Attorney Kelley also had concerns about [appellant]
          making incriminating statements. He testified that
          [appellant] was a prolific writer and there were one
          or two letters where statements were made against
          his interest. Attorney Kelley encouraged him not to
          write to the DA, but he continued to write and make
          such statements. Attorney Kelley also testified that
          he met with [appellant] regularly, numerous times
          per month. Finally, Attorney Kelley attested that he
          and [appellant] reviewed the sentencing guidelines
          and he had concerns over the terrible facts of the
          case, particularly the robbery. [Appellant] had been
          picked out of a lineup, had forced a woman to strip,
          and pistol-whipped another woman. These are facts
          that Attorney Kelley did not want before a jury.

                [Appellant] took the stand as the last witness
          at the PCRA hearing. [Appellant] stated that his
          meetings with Attorney Kelley were sporadic and


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            inconsistent, claiming that he only met with him
            three or four times. [Appellant] attested that he told
            Attorney Kelley that he would plead [on] the
            “4206” docket number, but did not wish to plead on
            the remaining charges. He said that Attorney Kelley
            was completely unprepared, with no defense
            strategy, no witnesses, no pre-trial motions, or
            motions to suppress. When asked if Attorney Kelley
            went over the colloquy forms with him, [appellant]
            answered “yes.”[Footnote 1] When asked why he
            ended up pleading no contest to all dockets,
            [appellant] claimed that he felt like he wasn’t guilty
            of all the charges, but knew he would get convicted
            because of the evidence.

                  [Footnote 1]:       A review of the Nolo
                  Contendere       Plea    and    Sentencing
                  Transcript    reveals    that   [appellant]
                  understood the no-contest plea to all
                  six dockets for a sentencing term of 7 to
                  14 years followed by 3 years of
                  probation, that he understood the
                  charges, penalties, gave up his right to a
                  jury trial, and that his plea was knowing,
                  voluntary and intelligent.

Trial court opinion, 3/29/17 at 3-5 (citations to record omitted).

      By order dated November 22, 2016, the trial court denied the PCRA

petition. The trial court determined:

                   A review of the record and testimony indicates
            to this [c]ourt that [appellant] has not demonstrated
            that counsel’s stewardship was deficient in that it
            resulted in a manifest injustice. The record does not
            support the claim that counsel facilitated the entry of
            an unknowing, involuntary, or unintelligent plea.
            While there were conflicts in testimony at the PCRA
            hearing, Attorney Kelley reviewed the colloquy forms
            with [appellant], met with [appellant] several times
            regarding his case, facilitated a meeting with Chief
            Deputy District Attorney Jennifer Gettle for purposes
            of negotiating a plea, was aware of the sentencing


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            guidelines, and was aware of the seriousness of the
            facts and charges. [Appellant] has not successfully
            rebutted     the    presumption     of     professional
            competence. There is no clear evidence that his
            ineffective assistance claims have merit. Moreover,
            the conduct pursued by Attorney Kelley had a
            reasonable basis designed to effectuate [appellant’s]
            interests. A tactical decision was made to negotiate
            a plea as opposed to risking a much greater
            sentence in light of the facts, particularly
            surrounding     the    robbery.       This     [c]ourt’s
            pronouncement       dismissing   [appellant’s]    PCRA
            petition is supported by the record. Therefore, such
            decision should be affirmed.

Id. at 5 (citations omitted).

      Appellant raises the following issue on appeal:      “Whether the PCRA

[c]ourt erred by concluding that the plea counsel was not ineffective, and in

the failure to find that the [a]ppellant’s nolle [sic] contendere pleas on the

multiple dockets were not voluntary.” (Appellant’s brief at 3.)

      PCRA petitions are subject to the following standard of review:

            “[A]s a general proposition, we review a denial of
            PCRA relief to determine whether the findings of the
            PCRA court are supported by the record and free of
            legal error.” Commonwealth v. Dennis, 609 Pa.
            442, 17 A.3d 297, 301 (Pa. 2011) (citation omitted).
            A PCRA court’s credibility findings are to be accorded
            great deference, and where supported by the record,
            such determinations are binding on a reviewing
            court. Id. at 305 (citations omitted). To obtain
            PCRA relief, appellant must plead and prove by a
            preponderance of the evidence: (1) his conviction or
            sentence resulted from one or more of the errors
            enumerated in 42 Pa.C.S. § 9543(a)(2); (2) his
            claims have not been previously litigated or waived,
            id. § 9543(a)(3); and (3) “the failure to litigate the
            issue prior to or during trial . . . or on direct appeal
            could not have been the result of any rational,


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            strategic or tactical decision by counsel[.]”            Id.
            § 9543(a)(4). An issue is previously litigated if “the
            highest appellate court in which [appellant] could
            have had review as a matter of right has ruled on
            the merits of the issue[.]” Id. § 9544(a)(2). “[A]n
            issue is waived if [appellant] could have raised it but
            failed to so before trial, at trial, . . . on appeal or in a
            prior state postconviction proceeding.”                  Id.
            § 9544(b).

Commonwealth v. Treiber, 121 A.3d 435, 444 (Pa. 2015).

     Instantly, all of appellant’s claims challenge the effectiveness of

counsel. To prevail on a claim of ineffective assistance of counsel under the

PCRA, a petitioner must plead and prove 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.”

42 Pa.C.S.A. § 9543(a)(2)(ii). Specifically, a petitioner must establish that

“the underlying claim has arguable merit; second, that counsel had no

reasonable basis for his action or inaction; and third, that Appellant was

prejudiced.”      Commonwealth v. Charleston, 94 A.3d 1012, 1020

(Pa.Super. 2014), appeal denied, 104 A.3d 523 (Pa. 2014) (citation

omitted).      “[C]ounsel is presumed to be effective and the burden of

demonstrating ineffectiveness rests on appellant.”           Commonwealth v.

Ousley, 21 A.3d 1238, 1242 (Pa.Super. 2011), appeal denied, 30 A.3d

487 (Pa. 2011) (citation omitted).         Additionally, we note that “counsel

cannot be held ineffective for failing to pursue a meritless claim[.]”




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Commonwealth v. Hall, 867 A.2d 619, 632 (Pa.Super. 2005), appeal

denied, 895 A.2d 549 (Pa. 2006).

           “On appeal from the denial of PCRA relief, our
           standard of review is whether the findings of the
           PCRA court are supported by the record and free of
           legal error.” Commonwealth v. Abu-Jamal, 574
           Pa. 724, 731, 833 A.2d 719, 723 (2003). We review
           allegations of counsel’s ineffectiveness in connection
           with a guilty plea under the following standards:

                The       standard    for    post-sentence
                withdrawal of guilty pleas dovetails with
                the          arguable      merit/prejudice
                requirements for relief based on a claim
                of ineffective assistance of plea counsel,
                see generally Commonwealth v.
                Kimball, 555 Pa. 299, 312, 724 A.2d
                326, 333 (1999), under which 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. See,
                e.g., [Commonwealth v.] Allen, 557
                Pa. [135,] 144, 732 A.2d [582,] 587
                [(1999)] (“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.”). . . .

           Commonwealth v. Flanagan, 578 Pa. 587,
           608-09, 854 A.2d 489, 502 (2004). This standard is
           equivalent to the “manifest injustice” standard
           applicable to all post-sentence motions to withdraw a
           guilty plea. Commonwealth v. Watson, 835 A.2d
           786 (Pa.Super. 2003).

Commonwealth v. Morrison, 878 A.2d 102, 104-105 (Pa.Super. 2005),

appeal denied, 887 A.2d 1241 (Pa. 2005).


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     “Preliminarily, we note that in terms of its effect upon a case, a plea of

nolo contendere is treated the same as a guilty plea.” Commonwealth v.

Leidig, 850 A.2d 743, 745 (Pa.Super. 2004), citing Commonwealth v.

Miller, 748 A.2d 733, 735 (Pa.Super. 2000).       “In determining whether a

plea was voluntarily entered into, an examination of the totality of the

circumstances is warranted.”    Commonwealth v. Allen, 732 A.2d 582,

588-589 (Pa. 1999).

     We find Commonwealth v. Barbosa, 819 A.2d 81 (Pa.Super. 2003),

to be instructive because the instant case, like Barbosa, involves a

negotiated plea agreement with regards to sentencing. (Notes of testimony,

1/28/14 at 12; appellant’s brief at 4.) The Barbosa court held,

           that if a defendant who entered a negotiated guilty
           plea was either misinformed or not informed as to
           the maximum possible sentence he could receive if
           he went to trial, and the misinformation or lack
           of information was material to his decision to
           accept the negotiated plea, then manifest
           injustice is established and the plea may be
           withdrawn.

Barbosa, 819 A.2d at 82 (emphasis added).         The court also held that a

failure to notify a defendant of the possible maximum sentence in a

negotiated plea agreement case would only be considered grounds to

withdraw the plea if the defendant’s lack of knowledge as to the maximum

sentence played a material role in the defendant’s decision to accept the

plea. Id. at 86.




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         Initially, appellant contends that due to the ineffective assistance of

his counsel, he entered a plea for all the dockets that was not knowing or

voluntary. On June 1, 2015, appellant executed the guilty plea colloquy and

indicated “yes” when asked on the form whether he understood the nature

of the charges against him and the maximum penalties for those charges.

Appellant also indicated “yes” when asked whether he had discussed the

case and the elements of the crimes with his attorney and whether he was

satisfied with his attorney’s representation.     (Guilty plea colloquy, 6/1/15

at 4, ¶¶ 9-11.)      Similarly, at his plea hearing, appellant answered “yes”

when asked whether he understood the potential penalties for the crimes for

which he had been charged, that he understood everything in the plea

colloquy and reviewed them with his attorney. (Notes of testimony, 6/1/15

at 3.)

         Appellant testified at the PCRA hearing that he discussed suppression

motions and potential witnesses to subpoena, but Attorney Kelley failed to

move in these directions.         (Notes of testimony, 11/12/16 at 62-63.)

Appellant testified that Attorney Kelley was unprepared.         Consequently,

appellant believed he would have lost had he gone to trial. He denied that

Attorney Kelley went over the plea colloquy forms with him before he signed

them.      (Id. at 64-65.)     On cross-examination, appellant had difficulty

identifying what issues and defenses that he wanted Attorney Kelley to raise.

(Id. at 75.)



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      Attorney Kelley testified that appellant hired him for the purpose of

negotiating a plea, and Attorney Kelley sought a global resolution to the

various charges. (Id. at 24.) Attorney Kelley testified that he saw no need

for any motions in limine. (Id. at 28.) Attorney Kelley explained that he

did not subpoena any witnesses or discuss any trial strategy with appellant

because he and appellant were not planning to try any of the cases. (Id. at

43-45.)   On cross-examination, Attorney Kelley stated that he met with

appellant at least every two weeks. He also testified that he reviewed the

sentencing guidelines with appellant for the charges he faced.          (Id. at

50-51.) He also advised appellant that the robbery charge was potentially

devastating because he had been picked out of a lineup, had forced a

woman to strip, and had pistol whipped another woman.                He advised

appellant that those were “terrible facts.” (Id. at 51.)

      The trial court credited Attorney Kelley’s testimony that he reviewed

the colloquy forms with appellant, met with appellant several times

regarding the case, facilitated a meeting with the Chief Deputy District

Attorney to discuss a plea, was aware of the sentencing guidelines, and the

seriousness of the facts and charges.

      “A PCRA court’s credibility findings are to be accorded great deference.

Indeed,   where    the   record   supports    the   PCRA   court’s    credibility

determinations, such determinations are binding on a reviewing court.”




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Commonwealth v. Dennis, 17 A.3d 297, 305 (Pa. 2011) (citations

omitted.)

     Given these credibility determinations, this court agrees with the PCRA

court that the record does not support the claim that appellant’s plea was

not knowing, intelligent, or voluntary due to the ineffectiveness of counsel.

The colloquy as well as Attorney Kelley’s testimony establish that appellant

was aware of the potential penalties he faced.      Further, Attorney Kelley

explained the tactical reasons why he did not subpoena witnesses and his

legal determination that pre-trial motions were unnecessary.    Additionally,

Chief Deputy District Attorney Gettle explained that appellant could have

received a much harsher penalty had he gone to trial on the various cases.

Appellant failed to satisfy the first prong of Pierce:   that his underlying

claim was of arguable merit.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/29/2017




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