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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA,                   :    IN THE SUPERIOR COURT OF
                                                :         PENNSYLVANIA
                           Appellee             :
                                                :
                      v.                        :
                                                :
                                                :
TONIE CLARENCE FUTURE,                          :
                                                :
                           Appellant            :    No. 788 MDA 2014


                Appeal from the PCRA Order September 26, 2013
              In the Court of Common Pleas of Lackawanna County
               Criminal Division No(s).: CP-35-CR-0002431-2009
                                         CP-35-CR-0002432-2009
                                         CP-35-CR-0002433-2009
                                        CP-35-CR-0002434-2009

BEFORE: FORD ELLIOTT, P.J.E., PANELLA, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                        FILED DECEMBER 24, 2014

        Appellant, Tonie Clarence Future, appeals from the order denying his

first petition under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§

9541-9546, following an evidentiary hearing.             Appellant asserts the PCRA

court    erred   in   concluding   that   his   claims    of   guilty   plea   counsels’

ineffectiveness lacked arguable merit. We affirm.

        The PCRA court has summarized of the procedural history of

Appellant’s underlying convictions, which need not be recited in detail here.



*
    Former Justice specially assigned to the Superior Court.
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PCRA Ct. Op., 9/26/13, at 1-2.       It suffices to note that on December 28,

2011,     Appellant   pleaded   guilty   to    charges    listed   in    four   separate

informations, including third-degree murder,1 attempted murder,2 conspiracy

to commit burglary,3 and conspiracy to commit robbery.4                 That same day,

the trial court sentenced Appellant to the agreed-upon aggregate sentence

of thirty-five to seventy years’ imprisonment.           Appellant did not file post

sentence motions or take a direct appeal.

        On December 24, 2012, Appellant timely filed a pro se PCRA petition.

The PCRA court appointed counsel, who filed an amended petition on

Appellant’s behalf.    The court held a hearing on July 2, 2013, at which

Appellant and guilty plea counsel, Joseph Kalinowski, Esq., testified.5              On

September 26, 2013, the court entered the instant order denying Appellant’s

request for PCRA relief.

        Appellant failed to file a timely notice of appeal. The PCRA court, upon

a stipulation entered by the parties, reinstated his right to appeal on April



1
    18 Pa.C.S. § 2502(c).
2
    18 Pa.C.S. §§ 901, 2502(a).
3
    18 Pa.C.S. §§ 903, 3701(a).
4
    18 Pa.C.S. §§ 903, 3502(a).
5
  Two attorneys represented Appellant at the time of his pleas, Attorney
Kalinowki and Cathy Tully, Esq., both of the Office of the Public Defender.
Attorney Tully was not at the PCRA hearing.



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17, 2014. Appellant filed his notice of appeal on May 6, 2014. The court did

not order him to file a Pa.R.A.P. 1925(b) statement.

      Appellant presents the following question for review:

         Whether the [PCRA] court erred in finding that Appellant’s
         claim of ineffective assistance of counsel failed when the
         evidence of record shows that Appellant did not
         understand the terms and consequences of his plea
         agreement and guilty plea [ ] counsel did not commit all
         terms and understandings of the agreement to writing[?]

Appellant’s Brief at 2.

      Appellant essentially asserts that the PCRA court’s findings lacked

support in the record. Id. at 4-5, 7. He argues the record establishes he

believed he was pleading to conspiracy to commit murder, not murder of the

third degree. Id. at 4-5. He also contends he was promised he could serve

his sentence in federal prison. Id. at 7. Therefore, according to Appellant,

the PCRA court erred in concluding his guilty plea counsel were not

ineffective, his pleas were knowingly and voluntarily entered, and his pleas

were not induced by an illusory promise. Id. No relief is due.

                  Our standard of review of the denial of a
               PCRA petition is limited to examining whether
               the court’s determination is supported by the
               evidence of record and free of legal error. This
               Court grants great deference to the findings of
               the PCRA court if the record contains any
               support for those findings. Further, the PCRA
               court’s credibility determinations are binding
               on this Court, where there is record support for
               those determinations.

               To prevail on a claim alleging counsel’s
            ineffectiveness under the PCRA, Appellant must


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           demonstrate (1) that the underlying claim is of
           arguable merit; (2) that counsel’s course of conduct
           was without a reasonable basis designed to
           effectuate his client's interest; and (3) that he was
           prejudiced by counsel’s ineffectiveness, i.e. there is a
           reasonable probability that but for the act or
           omission in question the outcome of the proceedings
           would have been different.

              It is clear that a criminal defendant’s right to
           effective counsel extends to the plea process, as well
           as during trial.         However, [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. Where the defendant
           enters his plea on the advice of counsel, the
           voluntariness of the plea depends on whether
           counsel’s advice was within the range of competence
           demanded of attorneys in criminal cases.

           “[T]he law does not require that [the defendant] be
        pleased with the outcome of his decision to enter a plea of
        guilty: All that is required is that [his] decision to plead
        guilty be knowingly, voluntarily, and intelligently made.”

Commonwealth v. Willis, 68 A.3d 997, 1001-02 (Pa. Super. 2012)

(citations omitted). We are further mindful that “[a] defendant is bound by

the statements made during the plea colloquy, and [he] may not later offer

reasons for withdrawing the plea that contradict statements made when he

pled.” Commonwealth v. Brown, 48 A.3d 1275, 1277 (Pa. Super. 2012)

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

     Instantly, Appellant refers to passing remarks in the record which best

support his position.   See Appellant’s Brief at 5 (quoting Appellant’s initial

statement at guilty plea hearing that he thought lead charge was



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“conspiracy to murder,” not third degree murder), 7 (citing Appellant’s PCRA

hearing     testimony regarding alleged promise to serve sentence in federal

prison).    Our review, however, reveals that the record supports the PCRA

court’s resolutions of the disputes in the evidence and its findings of fact.

Specifically, the court’s determination that Appellant was aware of the

offenses to which he was pleading guilty was supported by the written guilty

plea colloquy, as well as the extensive oral colloquy conducted by the trial

court.     See Guilty Plea Colloquy, 12/28/11, at 1-2 (indicating Appellant’s

plea to, inter alia, third-degree murder), N.T. Guilty Plea, 12/28/11, at 9-10

(indicating trial court ensured Appellant was “all right” with the written guilty

plea colloquy’s listing of charge of third-degree murder). The PCRA court’s

determination that Appellant was not induced into pleading guilty by a

promise of serving his sentence in federal prison was supported by Attorney

Kalinowski’s PCRA hearing testimony that no such promise had been made.

See N.T. PCRA H’rg, 56-57, 61-62, 73.           Indeed, according to Attorney

Kalinowski, he advised Appellant that federal officials alone would decide to

allow him to serve his time in federal prison.      Id. at 56-57. Furthermore,

Attorney Kalinowski purposefully omitted reference to federal prison on the

written guilty plea colloquy form because there was no promise in place. Id.

         Thus, we find record support for the PCRA court’s findings of fact. See

Willis, 68 A.3d at 1001; Brown, 48 A.3d 1278. Moreover, we discern no

error in the court’s resulting legal conclusions that Appellant failed to



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establish arguable merit to his claims of ineffectiveness.   Accordingly, we

affirm.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/24/2014




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