J-S59036-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    MICHAEL R. DURR                            :
                                               :
                      Appellant                :   No. 2192 EDA 2016

                   Appeal from the PCRA Order June 30, 2016
     In the Court of Common Pleas of Delaware County Criminal Division at
                       No(s): CP-23-CR-0001979-2015


BEFORE:      BENDER, P.J.E., OTT, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                         FILED OCTOBER 12, 2017

        Appellant, Michael R. Durr, appeals pro se from the order entered in

the Delaware County Court or Common Pleas denying his first Post

Conviction Relief Act1 (“PCRA”) petition.2 We affirm.


____________________________________________


*     Former Justice specially assigned to the Superior Court.

1   42 Pa.C.S. §§ 9541-9546.

2  In the instant case, following the filing of the first PCRA petition, Appellant
filed a plethora of pro se motions and petitions. See Docket, 8/22/16, at 1-
4; see also PCRA Ct. Op., 8/18/16, at 5-8. On June 30, 2016, the court
entered several orders. See Docket, 8/22/16, at 3-4. Appellant identifies
the June 30th order on appeal as follows: “The June 30th order which is the
subject of the instant appeal dismissed [Appellant’s] first PCRA petition.”
See Appellant’s Brief at 2. In a separate order, on June 30th, the court
dismissed Appellant’s second pro se PCRA petition filed on May 13, 2016, in
a separate order. See Order, 6/30/16.
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        The facts are unnecessary for our disposition.    On June 10, 2015,

Appellant entered into a negotiated guilty plea to simple assault 3 and

terroristic threats.4     For simple assault, Appellant was sentenced to time

served to 23 months’ incarceration, with immediate parole status.         For

terroristic threats, Appellant was sentenced to a two-year term of county

probation to be served consecutively to the period of parole for simple

assault.    See N.T. Sentencing Hr’g, 6/10/15, at 8-9.     On September 21,

2015, Appellant filed a pro se PCRA petition.       On September 22, 2015,

counsel was appointed.5 On March 10, 2016, counsel filed an application to

____________________________________________


3   18 Pa.C.S. § 2701(a)(1).

4   18 Pa.C.S. § 2706(a)(1).

5   The PCRA court noted:

               Despite this court promptly appointing [Henry]
           DiBenedetto Forrest, Esquire, as his collateral lawyer,
           [Appellant] subsequently forwarded to this court’s
           chambers and/or the Delaware County Judicial Support
           Office numerous and varied self-represented pleadings as
           follows: Motion for discovery; Motion for Miscarriage of
           Justice; Petitioner’s Right to an Evidentiary Hearing;
           Motion to Withdrawal [sic] Guilty Plea; Writ of Habeas
           Corpus; and an Application for Writ of Habeas Corpus.
           See Correspondences dated October 13, 2015; November
           5, 2015; December 7, 2015; January 7, 2016; January 12,
           2016; and January 25, 2016. Recognizing [Appellant] was
           represented at all such times by PCRA counsel, the court
           instructed the Delaware County Office of Judicial Support
           to lodge as well as docket these pleadings and forwarded
           copies of all the same to Attorney DiBenedetto Forrest.

(Footnote Continued Next Page)


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withdraw appearance and a Turner/Finley6 “no merit” letter.                On May 3,

2016, the PCRA entered an order granting counsel’s application to withdraw

and notice of intent to dismiss without a hearing pursuant to Pa.R.Crim.P.

907. On June 30, 2016, the court denied the PCRA petition. This timely pro

se appeal followed.

      Appellant raises the following issue for our review: “Whether PCRA

counsel was ineffective for failing to file an amended PCRA, for failing to

raise counsel’s ineffectiveness for advising [A]ppellant to plead guilty, and

for failing to investigate.”     Appellant’s Brief at 3.   Appellant contends that

“PCRA counsel failure to amend the PCRA to raise counsel’s ineffectiveness

for advising appellant to plead guilty when facts and evidence could have

been in his favor resulting in a victim of institutional sexual assault being set

up and put in prison by the perpertrator . . . .”               Id. at 7 (reproduced

verbatim).     Appellant claims “PCRA counsel’s failure to raise counsel’s

ineffectiveness    for   advising    [A]ppellant   to   plead    guilty   [when]   the

[A]ppellant tried to discuss the facts of the case with PCRA, but counsel
(Footnote Continued) _______________________

PCRA Ct. Op. at 4. The PCRA court opined: “Relevant to these various, self-
represented pleadings of [Appellant], a defendant may proceed pro se or can
enjoy the benefit of an attorney’s stewardship; however, a ‘hybrid
representation’ of pro se litigation contemporaneous with a lawyer’s of-
record representation is prohibited. Commonwealth v. Nischan, 928 A.2d
349, 355 (Pa. Super. 2007).” PCRA Ct. Op. at 4 n.4.

6 See Commonwealth v. Finley, 481 U.S. 551 (1987); Commonwealth
v. Turner, 544 A.2d 927 (Pa. 1988).



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refused to listen.”     Id. at 8.     “PCRA counsel was ineffective for failing to

investigate the facts of the case.” Id.

       As a prefatory matter, we consider whether Appellant has waived the

issues raised on appeal based upon his response to the court’s order to file a

Pa.R.A.P. 1925(b) statement of errors complained of on appeal. On July 18,

2016, Appellant was ordered to file a Rule 1925(b) statement. On August 4,

2016, Appellant filed a response to the July 18th order.7          The trial court

found that “[c]learly, [Appellant] timely received copies of the court’s order

directing him to lodge a statement of matters complained of on appeal. As

[Appellant] has failed to comply with this court’s instruction, his issues on

appeal should be deemed waived.” PCRA Ct. Op. at 11.

       In his timely response to the court’s July 18th order, Appellant “avers

how can he provide the requirements of the order by this court and submit a

1925(b), when [he] is being deprived critical information that is deliberately

being withheld by Comm. of Del.” Correspondence, 8/4/16, at 1. “Appellant

states Denise McCray, defense attorney was ineffective on June 10, 2015, by

way advicing Defendant to sign a plea bargain, without fully, thoroughly, &

properly investigating the in said case No. 1979-15, by this failure Defendant

Michael Durr, was exposed to extreme prejudice, & is now reconignized in

light as outrageously baised by genderly prejudicing Defendant & sideding
____________________________________________


7   The document was docketed as “Case Correspondence.”




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with the female Plaintiff over her obligations as defense counsel.”        Id.

(reproduced verbatim). We decline to find waiver on the basis of a failure to

file a statement of errors complained of on appeal.8

       “On appeal from the denial of PCRA relief, our standard and scope of

review is limited to determining whether the PCRA court’s findings are

supported by the record and without legal error.” Commonwealth v. Abu-

Jamal, 941 A.2d 1263, 1267 (Pa. 2008).           “Furthermore, we note that we

are bound by the PCRA court’s credibility determinations where there is

record support for those determinations.”        Commonwealth v. Santiago,

855 A.2d 682, 694 (Pa. 2004).

       With respect to claims of counsel’s ineffectiveness,

          [C]ounsel is presumed to have provided effective
          representation unless the PCRA petitioner pleads and
          proves that: (1) the underlying claim is of arguable merit;
          (2) counsel had no reasonable basis for his or her conduct;
          and (3) Appellant was prejudiced by counsel’s action or
          omission.[9] To demonstrate prejudice, an appellant must
          prove that a reasonable probability of acquittal existed but
          for the action or omission of trial counsel. A claim of
          ineffective assistance of counsel will fail if the petitioner
          does not meet any of the three prongs. Further, a PCRA
          petitioner must exhibit a concerted effort to develop his
          ineffectiveness claim and may not rely on boilerplate
          allegations of ineffectiveness.
____________________________________________


8 We note that “we may uphold a decision of the trial court if there is any
proper basis for the result reached.” Commonwealth v. Rosser, 135 A.3d
1077, 1087 n.5 (Pa. Super. 2016) (en banc) (citation omitted).
9 This test was enunciated in Commonwealth v. Pierce, 527 A.2d 973,
975-76 (Pa. 1987).



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Commonwealth       v.   Perry,   959   A.2d   932,   936   (Pa.   Super.   2008)

(punctuation and citations omitted).

     In determining whether counsel’s action was reasonable, the court

does not consider “whether there were other more logical courses of action”

counsel could have pursued, but simply examines whether counsel’s decision

had any reasonable basis. Commonwealth v. Washington, 927 A.2d 586,

594 (Pa. 2007). Conversely, to merit relief, counsel’s action, given all the

other available alternatives, must be “so unreasonable that no competent

lawyer would have chosen it.”    Commonwealth v. Miller, 431 A.2d 233,

234 (Pa. 1981) (citation omitted).     “The burden of proving ineffectiveness

rests with [a]ppellant.” Commonwealth v. Rega, 933 A.2d 997, 1018 (Pa.

2007).

     Appellant presents a layered claim of PCRA counsel’s ineffectiveness.

         Layered claims of ineffectiveness “are not wholly distinct
         from the underlying claims[,]” because “proof of the
         underlying claim is an essential element of the derivative
         ineffectiveness claim[.]”   “In determining a layered
         claim of ineffectiveness, the critical inquiry is
         whether the first attorney that the defendant asserts
         was ineffective did, in fact, render ineffective
         assistance of counsel. If that attorney was effective,
         then subsequent counsel cannot be deemed
         ineffective for failing to raise the underlying issue.”

Commonwealth v. Rykard, 55 A.3d 1177, 1190 (Pa. Super. 2012)

(citations omitted and emphasis added). Furthermore,

         [A] petitioner must plead in his PCRA petition that his prior
         counsel, whose alleged ineffectiveness is at issue, was
         ineffective for failing to raise the claim that counsel who

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        preceded him was ineffective in taking or omitting some
        action. In addition, a petitioner must present argument . .
        . on the three prongs of the Pierce test as to each
        relevant layer of representation.

Commonwealth v. Reaves, 923 A.2d 1119, 1128 (Pa. 2007) (citations

omitted). In Commonwealth v. Rathfon, 899 A.2d 365 (Pa. Super. 2006),

this Court opined:

        “A criminal defendant has the right to effective counsel
        during a plea process as well as during trial.”
        [Commonwealth v. Hickman, 799 A.2d 136, 141 (Pa.
        Super. 2002).] “A defendant is permitted to withdraw his
        guilty plea under the PCRA if ineffective assistance of
        counsel caused the defendant to enter an involuntary plea
        of guilty.” Commonwealth v. Kersteter, 877 A.2d 466,
        468 (Pa. Super. 2005).

              We conduct our review of such a claim in accordance
              with the three-pronged ineffectiveness test under
              section 9543(a)(2)(ii) of the PCRA, 42 Pa.C.S.A. §
              9543(a)(2)(ii). See [Commonwealth v.] Lynch[,
              820 A.2d 728, 732 (Pa. Super. 2003)].          “The
              voluntariness of the plea depends on whether
              counsel’s advice was within the range of competence
              demanded of attorneys in criminal cases.” Id. at
              733 (quoting [Hickman, 799 A.2d at 141].

                              *    *    *

        Kersteter, 877 A.2d at 46[8]–69. Moreover, trial counsel
        is presumed to be effective. Commonwealth v. Carter, [
        ] 656 A.2d 463, 465 (Pa. 1995).

Id. at 369.

     “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.



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Moser, 921 A.2d 526, 531 (Pa. Super. 2007) (citation omitted).           “[T]he

defendant must show that there is a reasonable probability that, but for

counsel’s errors, he would not have pleaded guilty and would have insisted

on going to trial.” Rathfon, 899 A.2d at 370 (citation omitted).

             Because a plea of guilty effectively waives all non-
         jurisdictional defects and defenses, after sentencing,
         allegations of ineffectiveness of counsel in this context
         provide a basis for withdrawal of the plea only where there
         is a causal nexus between counsel’s ineffectiveness, if any,
         and an unknowing or involuntary plea. The guilty plea
         hearing becomes the significant procedure under scrutiny.
         The focus of the inquiry is whether the accused was misled
         or misinformed and acted under that misguided influence
         when entering the guilty plea.

Commonwealth v. Flood, 627 A.2d 1193, 1199 (Pa. Super. 1993)

(citations and quotation marks omitted).

      As an additional prefatory matter, we consider whether Appellant has

waived the issue of PCRA counsel’s ineffectiveness for failing to raise it prior

to the instant appeal.    In Commonwealth v. Henkel, 90 A.3d 16 (Pa.

Super. 2014) (en banc), this Court opined:

         [The a]ppellant’s first three issues all involve claims
         pertaining to PCRA counsel’s representation. Neither party
         has cited the Pennsylvania Supreme Court’s modern
         treatment     of  this   issue    in   numerous     cases.
         Commonwealth v. Jette, [ ] 23 A.3d 1032, 1044 n. 14
         ([Pa.] 2011); Commonwealth v. Hill, [ ] 16 A.3d 484,
         497 n. 17 ([Pa.] 2011); Commonwealth v. Colavita, [ ]




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          993     A.2d   874,    893  n.   12   ([Pa.]   2010);[10]
          Commonwealth v. Pitts, [ ] 981 A.2d 875 ([Pa.] 2009);
          Commonwealth v. Ligons, [ ] 971 A.2d 1125 ([Pa.]
          2009) (plurality); Commonwealth v. Potter, [ ] 58 A.3d
          752 ([Pa.] 2012) (per curiam order). Nor have the parties
          addressed this Court’s most comprehensive discussion of
          Pennsylvania Supreme Court precedent on this matter,
          Commonwealth v. Ford, 44 A.3d 1190 (Pa. Super. 2012)
          (collecting cases).   Those decisions all clarify that
          claims of PCRA counsel's ineffectiveness may not be
          raised for the first time on appeal.

Id. at 20 (emphasis added). In Ford, this Court opined:

          We acknowledge that [the a]ppellant did raise the
          ineffectiveness of PCRA counsel issue in his Pa.R.A.P.
          1925(b) statement after the Supreme Court remanded the
          matter and new counsel was appointed for purposes of
          advancing his appeal nunc pro tunc, i.e., at the first
          opportunity. Additionally, the PCRA court addressed the
          issue in its Pa.R.A.P. 1925(a) opinion. [The a]ppellant’s
          question also pertains to matters of record and does not
          require this Court to engage in any factual findings. Thus,
          several of the concerns expressed for not addressing such
          a claim are not present. Nonetheless, a majority of the
          Supreme Court agrees that issues of PCRA counsel
          effectiveness must be raised in a serial PCRA petition or in
          response to a notice of dismissal before the PCRA court.
          In addition, the Supreme Court’s remand order in the
          instant case allowed for the appointment of counsel, not
          for the collateral review process to begin anew. Therefore,
          we hold that, absent recognition of a constitutional right to
          effective collateral review counsel, claims of PCRA counsel
          ineffectiveness cannot be raised for the first time after a
          notice of appeal has been taken from the underlying PCRA
          matter.

____________________________________________


10  The Pennsylvania Supreme Court stated: “claims of PCRA counsel
ineffectiveness may not be raised for the first time at the direct appeal level,
much less at the discretionary appeal level.” Henkel, 90 A.3d at 27.




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Ford, 44 A.3d at 1200-01. Furthermore,

          As noted, in Jette, as in [Commonwealth v.] Burkett,
          [5 A.3d 1260 (Pa. Super. 2010)], the PCRA court did not
          file a notice of intent to dismiss because it held a hearing.
          However, the Jette Court did not distinguish Pitts on that
          ground and signaled that Colavita was binding precedent
          on the issue of whether a claim of PCRA counsel
          ineffectiveness could be raised for the first time on appeal.
          Consequently, the Supreme Court concluded after the
          Burkett decision that a PCRA petitioner cannot assert
          claims of PCRA counsel ineffectiveness for the first
          time on appeal, regardless of whether a Rule 907[11]
          or 909 notice is involved.

Henkel, 90 A.3d at 28 (emphasis added).

       In the case sub judice, Appellant asserted claims of PCRA counsel’s

ineffectiveness for the first time on appeal.      Therefore, we could find the
____________________________________________


11   Rule 907 provides, in pertinent part, as follows:

          Except as provided in Rule 909 for death penalty cases,

          (1) the judge shall promptly review the petition, any
          answer by the attorney for the Commonwealth, and other
          matters of record relating to the defendant’s claim(s). If
          the judge is satisfied from this review that there are no
          genuine issues concerning any material fact and that the
          defendant is not entitled to post-conviction collateral relief,
          and no purpose would be served by any further
          proceedings, the judge shall give notice to the parties of
          the intention to dismiss the petition and shall state in the
          notice the reasons for the dismissal. The defendant may
          respond to the proposed dismissal within 20 days of the
          date of the notice. The judge thereafter shall order the
          petition dismissed, grant leave to file an amended petition,
          or direct that the proceedings continue.

Pa.R.Crim.P. 907(1).




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issue waived. See id.; Ford, 44 A.3d at 1200-01.      The PCRA court opined

that “this court on the instant record has no cause to find either trial and/or

appointed [PCRA] counsel’s stewardship anything other than competent.”

Order Granting Counsel’s Application to Withdraw and Notice to Dismiss

Without a Hearing Pursuant to Pa.R.Crim.P. 907, 5/3/16, at 10. Given the

PCRA court’s pronouncement, we will assume, arguendo, that it is not

waived. The PCRA court did not find trial counsel ineffective. See id. at 1-

10.

      After a thorough review of the record, the briefs of the parties, the

applicable law, and the PCRA court’s opinion, we affirm, in part, on the basis

of the PCRA court’s Order Granting Counsel’s Application to Withdraw and

Notice to Dismiss Without a Hearing Pursuant to Pa.R.Crim.P. 907, finding

that trial counsel was not ineffective.      See id. at 1-10   Therefore, the

layered claim of ineffective assistance of PCRA counsel is meritless.     See

Rykard, 55 A.3d at 1190.      Accordingly, we affirm the order of the PCRA

court dismissing Appellant’s PCRA petition.

      Order affirmed.

      PJE Bender joins the Memorandum.

      Judge Ott Concurs in the Result.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/12/2017




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