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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

    ASHLEY A. KOCH

                             Appellant                 No. 1011 MDA 2018


               Appeal from the PCRA Order Entered May 30, 2018
               In the Court of Common Pleas of Schuylkill County
               Criminal Division at No.: CP-54-CR-0001759-2016


BEFORE: STABILE, J., DUBOW, J., and STEVENS, P.J.E.*

MEMORANDUM BY STABILE, J.:                            FILED MARCH 22, 2019

        Appellant Ashley A. Koch appeals from the May 30, 2018 order entered

in the Court of Common Pleas of Schuylkill County (“PCRA court”), which

denied her request for collateral relief under the Post Conviction Relief Act (the

“PCRA”), 42 Pa.C.S.A. §§ 9541-46. PCRA counsel has filed a no-merit brief

and petitioned to withdraw under Turner/Finley.1 Upon review, we affirm

and grant counsel’s petition to withdraw.

        The facts and procedural history of this case are undisputed. Briefly,

following a negotiated guilty plea for criminal mischief, 18 Pa.C.S.A.



____________________________________________


*   Former Justice specially assigned to the Superior Court.
1Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v.
Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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§ 3304(a)(5),2 the trial court, on February 22, 2017, sentenced Appellant to

eighteen months’ probation and ordered her to pay $18,157.30 in restitution

jointly and severally with her co-defendant, Sticker.         Appellant executed a

written guilty plea colloquy, indicating that she understood the terms of her

negotiated plea agreement and that it was her own decision to plead guilty.

See Written Colloquy, 1/27/17, at 1-6. She also specifically indicated that

she was satisfied with the representation and advice of trial counsel. Id. at

¶ 27.

        Appellant violated probation. As a result, on October 4, 2017, following

a probation revocation hearing, the trial court re-sentenced Appellant to

eighteen months’ probation.

        On February 21, 2018, Appellant filed the instant PCRA petition, alleging

ineffective assistance of counsel.        Appellant sought to have her restitution

sentence reduced. Appellant claimed her restitution amount was excessive

because Sticker withdrew his guilty plea, proceeded to a jury trial, and was

found by a jury to have caused damage of more than $1,000.00 but no more

than $5,000.00.3 In other words, because Sticker was ordered only to pay
____________________________________________


2  Appellant, along with her boyfriend and co-defendant, Ronald Sticker,
trashed and damaged a cabin located at Echo Valley Campground.
Specifically, Appellant agreed that she damaged the cabin deck, and caused
damage inside the cabin, including walls, floors, baseboards, doors, interior
and exterior furniture, appliances, an electric fireplace, drapes, bedding, TV
screen, hot water heater, ceiling fan, lights, oil painting, air conditioning
switches, receptacles, and thermostats. See N.T. Guilty Plea, 2/22/17, at 8-
9.
3   The trial court also sentenced Sticker to state prison.

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$4,999.00 in restitution, Appellant claims she should not be liable for the full

$18,157.30. The PCRA court appointed counsel. Following a hearing, at which

trial counsel testified, the PCRA court denied Appellant relief on May 30, 2018.

Appellant timely appealed. The PCRA court did not direct Appellant to file a

Pa.R.A.P. 1925(b) statement of errors complained of on appeal.

      On October 4, 2018, Appellant’s PCRA counsel filed in this Court an

application to withdraw as counsel and a no-merit letter, once again asserting

the restitution issue.

      Before we may consider this issue, we must address whether PCRA

counsel has met the requirements of Turner/Finley. For PCRA counsel to

withdraw under Turner/Finley in this Court:

      (1)   PCRA counsel must file a no-merit letter that details the
            nature and extent of counsel’s review of the record; lists the
            appellate issues; and explains why those issues are
            meritless.

      (2)   PCRA counsel must file an application to withdraw; serve the
            PCRA petitioner with the application and the no-merit letter;
            and advise the petitioner that if the Court grants the motion
            to withdraw, the petitioner can proceed pro se or hire his
            own lawyer.

      (3)   This Court must independently review the record and agree
            that the appeal is meritless.

See Commonwealth v. Widgins, 29 A.3d 816, 817-18 (Pa. Super. 2011)

(citing or quoting Turner, Finley, Commonwealth v. Pitts, 981 A.2d 875

(Pa. 2009), and Commonwealth v. Friend, 896 A.2d 607 (Pa. Super. 2008),

overruled in part by Pitts).



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      We find that PCRA counsel has complied with Turner/Finley.             PCRA

counsel has filed an application to withdraw and filed a Turner/Finley no-

merit letter. Finally, PCRA counsel informed Appellant of her right to hire a

new lawyer or file a pro se response.

      We now address whether this appeal is indeed meritless. “On appeal

from the denial of PCRA relief, our standard of review requires us to determine

whether the ruling of the PCRA court is supported by the record and free of

legal error.” Widgins, 29 A.3d at 819. As this Court has explained:

      We review an order dismissing a petition under the PCRA in the
      light most favorable to the prevailing party at the PCRA level. This
      review is limited to the findings of the PCRA court and the evidence
      of record. We will not disturb a PCRA court’s ruling if it is
      supported by evidence of record and is free of legal error. This
      Court may affirm a PCRA court’s decision on any grounds if the
      record supports it. Further, we grant great deference to the
      factual findings of the PCRA court and will not disturb those
      findings unless they have no support in the record. However, we
      afford no such deference to its legal conclusions. Where the
      petitioner raises questions of law, our standard of review is de
      novo and our scope of review plenary.

Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (citations

omitted).

      Here, Appellant argues that her trial counsel was ineffective because he

did not explain to her what it meant to be jointly and severally liable and failed

to inform her of Sticker’s withdrawal of his guilty plea prior to her entering

into the negotiated guilty plea. We disagree.

      A PCRA petitioner is entitled to relief if he pleads and proves that prior

counsel     rendered   ineffective   assistance   of   counsel.   42    Pa.C.S.A.


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§ 9543(a)(2)(ii). “To prevail on an [ineffectiveness] claim, a PCRA petitioner

must plead and prove by a preponderance of the evidence that (1) the

underlying legal claim has arguable merit; (2) counsel had no reasonable basis

for acting or failing to act; and (3) the petitioner suffered resulting prejudice.”

Commonwealth v. Reyes-Rodriguez, 111 A.3d 775, 780 (Pa. Super. 2015)

(en banc). “Allegations 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.” Commonwealth v.

Hickman, 799 A.2d 136, 141 (Pa. Super. 2002) (citation omitted). “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.” Id. (citations omitted)

(internal quotation marks omitted). Furthermore, a defendant “is bound by

one’s statements made during a plea colloquy, and may not successfully

assert claims that contradict such statements.”             Commonwealth v.

Muhammad, 794 A.2d 378, 384 (Pa. Super. 2002) (citation omitted).

      Instantly,   our   review   of   the   record   reveals   that   Appellant’s

ineffectiveness claim lacks merit. As the court found, at the PCRA hearing,

Appellant’s trial counsel credibly testified that “he had reviewed the

Commonwealth’s evidence with respect to the amount of damages and

negotiated the eighteen month probationary sentence.” PCRA Court Opinion,

6/25/18, at 2 (unpaginated) (unnecessary capitalization omitted).              The

Commonwealth’s original offer was nine to eighteen months in a state

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correctional institution. Id. Moreover, the PCRA court found that trial counsel

credibly

       testified that before [Appellant] entered her plea before the
       court, [she] was informed that Sticker withdrew his plea and had
       chosen to go to trial. Nevertheless, [Appellant] insisted on
       entering her plea pursuant to the plea agreement she had
       negotiated. [Appellant] interprets the term “jointly and severally”
       as synonymous with “equally.” However, the plea memorandum
       and sentencing order do not provide for equal payments of the
       restitution amount.[4]

Id. (emphasis added). Additionally, at the PCRA hearing, when asked whether

joint and several liability means that “either party can be responsible for the

full amount[,]” Appellant’s trial counsel testified that “whenever we get into

the joint and several liability territory, I always advise my clients that that is

a possibility that if the person who they’re joint and severally liable with does

not pay, they’re on the hook for the full everything.”      N.T. PCRA Hearing,

5/23/18, at 16.

       Interestingly, as the PCRA court found, after pleading guilty, Appellant

proceeded to testify at Sticker’s trial as a defense witness. According to the

PCRA court, Appellant assumed responsibility for the damage caused to the

cabin by stating, “I trashed the trailer.” PCRA Court Opinion, 6/25/18, at 1.

In other words, she “essentially exonerated Sticker from doing the damage

and testified she had done so because “I was pissed!’” Id. at 2.

____________________________________________


4 At sentencing, the trial court remarked, “You’ll pay the costs, serve 18
months probation and pay the supervision fee and you have restitution of
$18,157.30 that is joint and several with Ron Sticker[.]” N.T. Guilty Plea,
2/22/17, at 9 (emphasis added).

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      Based on the foregoing, we conclude that Appellant’s ineffectiveness

claim lacks merit. Trial counsel advised Appellant that Sticker had withdrawn

his guilty plea. Despite this knowledge, Appellant insisted on entering into

the negotiated guilty plea. Furthermore, trial counsel informed Appellant that

joint and several liability does not mean equal.      Indeed, the guilty plea

memorandum and sentencing order confirm that restitution was not equal but

rather that Appellant was jointly and severally liable for $18,157.30 in

restitution. The fact that Sticker’s restitution is capped at $4,999.00 does not

change the nature of Appellant’s guilty plea because she agreed to be

responsible for the full amount of restitution jointly and severally.     Even

assuming that Sticker had been ordered to pay $18,157.30 jointly and

severally with Appellant, Appellant would still be liable for the full amount if

Sticker, at any time, failed to make the necessary payments.

      PCRA counsel has complied with Turner/Finley.          We independently

have reviewed the record, and we are convinced that no meritorious appellate

issues exist.

      Order affirmed. Petition to withdraw granted.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/22/2019




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