J-S29021-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 PATRICK CORNWALL                        :
                                         :
                    Appellant            :   No. 3958 EDA 2017

              Appeal from the PCRA Order November 2, 2017
   In the Court of Common Pleas of Delaware County Criminal Division at
                     No(s): CP-23-CR-0005260-2016


BEFORE:     PANELLA, J., MURRAY, J., and STEVENS*, P.J.E.

MEMORANDUM BY MURRAY, J.:                             FILED JUNE 04, 2018

      Patrick Cornwall (Appellant) appeals from the order denying his petition

filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-

9546. We affirm.

      We summarize the pertinent facts and procedural history of this case as

follows.   In April 2017, Appellant entered a negotiated guilty plea to two

counts of simple assault, one count of terroristic threats, and one count of

driving with a suspended license, DUI-related. The terms of the plea included,

inter alia, a sentence of ten months to two years, less a day, in the Delaware

County Prison, and a recommendation for work release eligibility so long as

Appellant qualified under the guidelines for county intermediate punishment.

      At the plea colloquy, Appellant’s counsel (plea counsel) stated that

Appellant had spoken with Katherine Miller, the work release case manager,

and that Ms. Miller indicated that Appellant appeared to be eligible for work

____________________________________
* Former Justice specially assigned to the Superior Court.
J-S29021-18



release, based upon the information Appellant provided in their discussion.

N.T., 10/26/17, at 106-109. Following the colloquy, the trial court imposed

the agreed upon sentence of ten months to two years, less a day. The trial

court also imposed the condition that Appellant was “stationary work release

eligible if deemed appropriate by the prison.” Judgment of Sentence, 4/21/17.

Appellant did not file a direct appeal.

      On May 17, 2017, plea counsel filed a petition to modify the conditions

of the sentence, requesting permission for Appellant to attend physical

therapy sessions while in the work release program. The Commonwealth did

not oppose the petition, and the trial court granted Appellant’s request,

conditioned on his work release eligibility.

      On May 23, 2017, after learning that a preexisting condition (seizures)

made Appellant ineligible for work release, plea counsel filed a second petition

requesting that Appellant be able to serve his sentence using electronic home

monitoring. Petition, 5/23/17, at ¶ 4-5. In response, the trial court issued

an order, stipulated by counsel, which directed that Appellant “be placed in

the Delaware County Prison work release program [forthwith].” Stipulation,

6/9/17. Despite the trial court’s order, Appellant was never placed in the work

release program.

      On June 8, 2017, Appellant filed a timely pro se PCRA petition. The

PCRA court scheduled a hearing and appointed PCRA counsel.             Appellant

subsequently filed a counselled, amended PCRA petition that challenged the

effectiveness of plea counsel and, in turn, the voluntariness of his guilty plea.

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      The PCRA court conducted a hearing on the merits of Appellant’s

amended petition where Appellant, Ms. Miller, and plea counsel offered

testimony. Appellant testified that he had asked plea counsel what it meant

to be eligible for work release and that plea counsel told him “don’t worry

about it. . . [because ineligibility] never happens to anybody.” N.T., 10/26/17,

at 24-25. Appellant stated that he had spoken with Ms. Miller about work

release and that “she told [him] all of the rules” of the program, but did not

tell him that he needed to be cleared medically. Id. at 24-25, 38. Appellant

also stated that he did not inform Ms. Miller of an open criminal charge pending

against him. Id. at 25.

      Ms. Miller testified that she explained to Appellant that he would need

to be medically cleared by the prison to be eligible for work release, and that

Appellant did not discuss with her his seizures or inquire about whether his

medical condition would make him ineligible for the program. Id. at 58. Ms.

Miller also stated that she informed Appellant that an open case or detainer

would make an inmate ineligible for work release, but that Appellant did not

inform her that he had an open case. Id. at 55, 58.

      Plea counsel testified that neither the trial court nor the Commonwealth

promised Appellant that he would be eligible for work release, and that the

trial court made Appellant aware that his eligibility for work release was

contingent on prison guidelines. Id. at 104-109. Plea counsel also testified

that had he known that Appellant’s medical condition and open case




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disqualified him from work release eligibility, he would have informed him.

Id. at 110-112.

      The PCRA court found the testimony of Ms. Miller and plea counsel to be

credible and determined that Appellant’s testimony was not credible. PCRA

Court Opinion, 1/12/18, at 9, 14. Accordingly, on November 2, 2017, the

PCRA court entered an order dismissing Appellant’s petition. Appellant filed a

timely, counselled notice of appeal and complied with the PCRA court’s order

to file a concise statement of errors complained of on appeal pursuant to Rule

1925(b) of the Pennsylvania Rules of Appellate Procedure. The PCRA court

issued a Rule 1925(a) opinion.

      Appellant raises the following issue:

      I.    Did the trial court err in dismissing [Appellant’s] petition for
      post conviction relief wherein he alleged that [plea] counsel was
      ineffective for indicating to [Appellant] that he would be work
      release eligible as part of the negotiated plea entered into with
      the District Attorney’s Office of Delaware County?

Appellant’s Brief at 4.

      Our standard of review is well-settled:

      In reviewing the denial of PCRA relief, we examine whether the
      PCRA court’s determinations are supported by the record and are
      free of legal error. The PCRA court’s credibility determinations,
      when supported by the record, are binding on this Court; however,
      we apply a de novo standard of review to the PCRA court’s legal
      conclusions.

Commonwealth v. Roney, 79 A.3d 595, 603 (Pa. 2013) (citation omitted).

      Appellant argues that plea counsel was ineffective for failing to advise

him before he entered the negotiated guilty plea that his medical condition


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and pending criminal charge made him ineligible for work release.             Thus,

Appellant contends that his guilty plea was “not knowing and voluntarily

entered.” Appellant’s Brief at 13.

         [I]n order to obtain relief based on [an ineffectiveness]
         claim, a petitioner must establish: (1) the underlying claim
         has arguable merit; (2) no reasonable basis existed for
         counsel’s actions or failure to act; and (3) petitioner suffered
         prejudice as a result of counsel’s error such that there is a
         reasonable probability that the result of the proceeding
         would have been different absent such error.

      Trial counsel is presumed to be effective, and Appellant bears the
      burden of pleading and proving each of the three factors by a
      preponderance of the evidence.

Commonwealth v. Barndt, 74 A.3d 185, 192 (Pa. Super. 2013) (citations

omitted).    “A court is not required to analyze the elements of an

ineffectiveness claim in any particular order of priority; instead, if a claim fails

under any necessary element of the ineffectiveness test, the court may

proceed to that element first.” Commonwealth v. Tharp, 101 A.3d 736,

747 (Pa. 2014) (citations omitted).

      While a criminal defendant’s right to effective counsel extends to the

plea process, “[a]llegations of ineffectiveness in connection with the entry of

a guilty plea will serve as a basis for relief only if the ineffectiveness caused

the defendant to enter an involuntary or unknowing plea.” Barndt, 74 A.3d

at 192 (citation omitted).      “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. Beddell, 954 A.2d 1209,


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1212 (Pa. Super 2008), appeal denied, 964 A.2d 893 (Pa. 2009). It is well-

settled that “[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.” Commonwealth v. Yeomans, 24 A.3d 1044, 1047 (Pa. Super.

2011).

      In addition, a petitioner attempting to prove the ineffectiveness of

counsel must adequately discuss each of the three ineffectiveness prongs or

the appellate court will reject the claim.      Commonwealth v. Reyes-

Rodriguez, 111 A.3d 775, 780 (Pa. Super. 2015), appeal denied, 123 A.3d

331 (Pa. 2015), citing Commonwealth v. Fears, 86 A.3d 795, 804 (Pa.

2014).   Claims of ineffectiveness of counsel are not self-proving, and this

Court will not serve as counsel for Appellant or consider issues which are not

fully developed in the brief. Commonwealth v. Kane, 10 A.3d 327, 331 (Pa.

Super. 2010), appeal denied, 29 A.3d 796 (Pa. 2011); see also

Commonwealth v. Spotz, 18 A.3d 244, 282 (Pa. 2014) (finding waiver

where Appellant failed to meaningfully develop the elements of an

ineffectiveness of counsel claim).

      Here, aside from a brief statement generally summarizing the applicable

law and a single conclusory assertion that his guilty plea “was not knowing

and voluntarily entered based on [his] reliance on the representations of [plea

counsel,]” Appellant has failed to set forth a cognizable argument that he is


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entitled to relief under the PCRA. Appellant’s Brief at 11-13. He does not

discuss or apply the standard for ineffectiveness claims, and he fails to develop

an argument concerning any of the ineffectiveness prongs. Accordingly, we

conclude that Appellant has waived this claim for failure to properly develop

it. See Spotz, 18 A.3d at 282; Reyes-Rodriguez, 111 A.3d at 780; Kane,

10 A.3d at 331.

      Moreover, even if Appellant had properly developed an ineffective

assistance of counsel argument in his appellate brief, he would have failed to

meet his burden of proving that his claim has arguable merit. Our review of

the record reveals that there is no evidence indicating that plea counsel or

anyone else promised Appellant that he would be eligible for work release

prior to his guilty plea. See N.T., 10/26/17, at 55, 58, 104-112. The record

is clear that both the trial court and Ms. Miller told Appellant that his entry

into the work release program was contingent upon prison guidelines. See

id. The PCRA court expressly credited the testimony of Ms. Miller and plea

counsel, who testified that they never guaranteed Appellant that he would be

eligible for work release. PCRA Court Opinion, 1/12/18, at 9, 14. We are

bound by the PCRA court’s credibility determinations when supported by the

record.   Roney, 79 A.3d at 603.      We therefore affirm the order denying

Appellant’s PCRA petition.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/4/18




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