J-S09026-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    LEROY KENT, JR.                            :
                                               :
                       Appellant               :   No. 1026 WDA 2018

              Appeal from the PCRA Order Entered June 27, 2018
     In the Court of Common Pleas of Allegheny County Criminal Division at
                       No(s): CP-02-CR-0013090-2015


BEFORE:      PANELLA, P.J., LAZARUS, J., and STRASSBURGER*, J.

MEMORANDUM BY LAZARUS, J.:                               FILED APRIL 22, 2019

        Leroy Kent, Jr., appeals from the order, entered in the Court of Common

Pleas of Allegheny County, denying his petition filed pursuant to the Post-

Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546.         Upon careful

review, we affirm.

        On April 3, 2017, Kent entered a fully-negotiated guilty plea to

aggravated assault.1       That same day, the Honorable Anthony M. Mariani

imposed a sentence of five to ten years’ confinement.        Kent did not file a

timely post-sentence motion or a direct appeal. On September 19, 2017, Kent

filed a pro se motion to withdraw his guilty plea. The trial court treated Kent’s

untimely pro se motion to withdraw his plea as a timely first PCRA petition.2
____________________________________________


1   18 Pa.C.S.A. § 2702(a)(1).

2 See Commonwealth v. Guthrie, 749 A.2d 502, 503 (Pa. Super. 2000)
(holding untimely post-sentence motions may be treated as PCRA petitions).
____________________________________
* Retired Senior Judge assigned to the Superior Court.
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The trial court appointed PCRA counsel, who filed a supplemental PCRA

petition on March 26, 2018. On June 27, 2018, the PCRA court held a hearing

on Kent’s claims, and subsequently determined they lacked merit. The PCRA

court dismissed Kent’s petition by order dated June 27, 2018. Kent timely

filed a notice of appeal on July 13, 2018, and thereafter, a Pa.R.A.P. 1925(b)

concise statement of errors complained on appeal.

      On appeal, Kent raises the following issues for our review:

      1. Did the trial court err in denying [Kent’s] PCRA petition since
         trial counsel was ineffective for inducing [Kent] to enter an
         involuntary plea?

      2. Did the trial court err in denying [Kent’s] PCRA petition since
         trial counsel was ineffective for failing to timely move for leave
         to withdraw [Kent’s] guilty plea after [Kent] so instructed him?

Brief of Appellant, at 3.

      Both of Kent’s claims involve the validity of his guilty plea. He claims

counsel coerced him to enter a plea, and then failed to file a timely motion to

withdraw the plea, despite Kent’s express desire to do so. As Kent has not

demonstrated his guilty plea was involuntary, or that he would have been able

to meet the standard for seeking post-sentence withdrawal of his plea, he is

not entitled to relief.

      To successfully challenge the validity of a guilty plea under the PCRA, a

petitioner must plead and prove by a preponderance of the evidence that his

guilty plea was unlawfully induced where the circumstances made it likely the

inducement caused the petitioner to plead guilty, or that ineffective assistance



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of counsel caused him to enter an involuntary or unknowing plea.            42

Pa.C.S.A. § 9543(a)(2)(iii); Commonwealth v. Young, 695 A.2d 414, 416

(Pa. Super. 1997). Both claims implicate the effectiveness of plea counsel.

      To establish ineffective assistance of counsel, a PCRA petitioner must

plead and prove: (1) the underlying issue is of arguable merit; (2) counsel

lacked a strategically reasonable basis for the act or omission; and (3) the

petitioner suffered prejudice in that counsel’s ineffectiveness affected the

result of the proceeding. Commonwealth v. Harris, 852 A.2d 1168, 1173

(Pa. 2004). Failure to prove any prong will defeat an ineffectiveness claim.

Commonwealth v. Reyes-Rodriguez, 111 A.3d 775, 779–80 (Pa. Super.

2015) (en banc). “It is well-established that counsel is presumed effective,

and to rebut that presumption, the PCRA petitioner must demonstrate that

counsel’s performance was deficient and that such deficiency prejudiced him.”

Commonwealth v. Koehler, 36 A.3d 121, 132 (Pa. 2012) (citation omitted).

      When a defendant seeks to withdraw a plea after sentencing, he “must

demonstrate prejudice on the order of manifest injustice.” Commonwealth

v. Yeomans, 24 A.3d 1044, 1046 (Pa. Super. 2011).           “Manifest injustice

occurs when the plea is not tendered knowingly, intelligently, voluntarily, and

understandingly.”   Commonwealth v. Kpou, 153 A.3d 1020, 1023 (Pa.

Super. 2016) (citation omitted). In determining whether a plea is valid, the

court must examine the totality of circumstances surrounding the plea. Id.

“Pennsylvania law presumes a defendant who entered a guilty plea was aware

of what he was doing, and the defendant bears the burden of proving

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otherwise.”   Id.   Finally, it is well-established that a defendant may not

challenge his guilty plea by asserting that he lied while under oath, even if he

avers that counsel induced the lies. Yeomans, 24 A.3d at 1047. “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

[that] contradict the statements he made at his plea colloquy.” Id.

      To prevail on either claim, Kent must demonstrate, as a threshold

matter, that his plea was entered involuntarily. Pennsylvania Rule of Criminal

Procedure 590 provides a procedure to determine whether the plea is

voluntarily, knowingly, and intelligently entered.        Commonwealth v.

Flanagan, 854 A.2d 489, 500 (Pa. 2004).            The trial court should, at a

minimum, elicit the following information during the plea colloquy:

      (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
      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 range 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?

Pa.R.Crim.P. 590, Comment.



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      Kent has not established his plea was involuntary.         Judge Mariani

engaged in a thorough colloquy prior to accepting Kent’s plea.              Kent

acknowledged that he understood English, was not under the influence of

alcohol or drugs, was advised of the maximum penalties, was not being forced

to enter the guilty plea, and entered the plea on his own free will. See N.T.

Guilty Plea, 4/3/17, at 2-6. The trial court further advised Kent that he was

waiving certain rights, including the right to a jury trial. Id. at 4. During his

oral colloquy, Kent heard the nature of the charges and the factual basis for

the plea. Id. at 2, 7-9.

      The trial court noted that Kent had completed a written plea colloquy,

which the court confirmed Kent had signed after consultation with counsel.

Id. In his written plea colloquy, Kent waived his right to a trial, and stated

he discussed with his attorney the elements of the charged offense, the factual

basis of the offense, the burden of proof carried by the Commonwealth, and

his right to present and confront witnesses at trial. See Written Plea Colloquy,

4/3/17, at 1-5. The written colloquy also stated the trial court was not bound

by the terms of the plea agreement and, if the court rejected his plea deal,

Kent would have the opportunity to withdraw his plea, enter an open plea, or

go to trial. Id. at 10. Moreover, Kent affirmed in writing he was satisfied with

his trial counsel, had ample time to consult with counsel, and that counsel

explained the meaning of the colloquy. See id. at 10.




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      The PCRA court held a hearing on Kent’s claims, during which Kent’s

plea counsel testified.   Kent’s plea counsel stated he spoke with Kent on

numerous occasions about defenses that could have been presented at trial

and felt Kent freely made the choice to plead guilty.      N.T. PCRA Hearing,

6/27/18, at 5-8. Kent’s plea counsel further testified he never informed Kent

that he would be required to appear for trial in prison garb or that no

investigation would be made for his case. Id. at 7-9.

      Additionally, Kent testified at his PCRA hearing and admitted that he had

lied under oath during his plea colloquy. Id. at 16. The PCRA court made a

determination that Kent’s “testimony [was] wholly incredible based on the

written guilty plea colloquy, the oral colloquy conducted by the [c]ourt and

[Kent’s] own voluntary statements” made to the court. Trial Court Opinion,

11/9/18, at 5.      This Court is bound by the PCRA court’s credibility

determinations. See Commonwealth v. Johnson, 51 A.3d 237, 242-43 (Pa.

Super. 2012) (holding PCRA court’s credibility determinations are binding on

appeal when supported by record). We find the PCRA court’s determination

is supported by the evidence of record and, consequently, affirm the PCRA

court’s finding that Kent failed to prove plea counsel’s ineffectiveness.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/22/2019




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