J. S67038/14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA,               :     IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                          Appellee          :
                                            :
                    v.                      :
                                            :
                                            :
JASON LEE WILSON,                           :
                                            :
                          Appellant         :     No. 826 WDA 2014


                   Appeal from the PCRA Order April 17, 2014
                In the Court of Common Pleas of Warren County
               Criminal Division No(s).: CP-62-CR-0000359-2008

BEFORE: DONOHUE, MUNDY, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                      FILED JANUARY 09, 2015

        Appellant, Jason Lee Wilson, appeals from the order entered in the

Warren County Court of Common Pleas denying, after an evidentiary

hearing, his first Post Conviction Relief Act1 (“PCRA”) petition.    This case

returns to us after we remanded to have counsel comply with all the

requirements of Turner/Finley,2 including filing a petition to withdraw with

this Court.     Appellant’s counsel has substantially complied.      We grant

counsel’s petition to withdraw and affirm the order below.


*
    Former Justice specially assigned to the Superior Court.
1
    42 Pa.C.S. §§ 9541-9546.
2
  Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
J. S67038/14

        We adopt the facts and procedural history set forth in the PCRA court’s

decision. See PCRA Ct. Op., 4/17/14, at 1-3. After an evidentiary hearing

at which Appellant and his trial counsel testified, the PCRA court denied

Appellant’s petition on April 17, 2014. Appellant timely appealed. On May

14, 2014, the trial court ordered Appellant to file and serve on the court a

Pa.R.A.P. 1925(b) statement within twenty-one days. The docket does not

reflect compliance with Pa.R.C.P. 236.3 On May 22, 2014, Appellant filed a

Rule 1925(b) statement but failed to serve a copy on the court. The PCRA

court issued a Rule 1925(a) decision objecting to counsel’s failure to serve

the Rule 1925(b) statement.

        Instantly, we ascertain whether Appellant complied with Pa.R.A.P.

1925(b)(1), which states in relevant part: “(1) Filing and service.—

Appellant shall file of record the Statement and concurrently shall serve the

judge. Filing of record and service on the judge shall be in person or by mail

. . . .”    Pa.R.A.P. 1925(b)(1) (emphasis added).     We must also examine

whether the PCRA court strictly complied with Pa.R.C.P. 236 when it ordered

a Rule 1925(b) statement.        See In re L.M., 923 A.2d 505, 509-10 (Pa.

Super. 2007) (holding, “strict application of the bright-line rule [of Rule 1925

waiver] necessitates strict interpretation of the rules regarding notice of

Rule 1925(b) orders.” (citation omitted)).


3
    We discuss this in further detail below.




                                        -2-
J. S67038/14

      Rule 236 states in pertinent part:

         Rule 236. Notice by Prothonotary of Entry of Order
         or Judgment

            (a) The prothonotary shall immediately give written
         notice of the entry of

                                    *    *    *

               (2) any other order or judgment to each party’s
            attorney of record or, if unrepresented, to each party.
            The notice shall include a copy of the order or
            judgment.

            (b) The prothonotary shall note in the docket the giving
         of the notice and, when a judgment by confession is
         entered, the mailing of the required notice and documents.

Pa.R.C.P. 236(a)(2), (b).   Rule 236 mandates that the prothonotary give

“written notice of the entry of a court order to each party and to note on the

docket that notice was given.” Id. at 510 (emphasis added).

            If the docket does not show that notice of the entry of
         a Rule 1925(b) order was provided to an appellant, then
         we will not conclude that the appellant’s issues have been
         waived for failure to file a Rule 1925(b) statement. That a
         party may have actually received notice is not
         determinative under circumstances where the docket does
         not reflect that notice was sent.

In re L.M., 923 A.2d at 510 (emphases added and citations omitted).

      In this case, Appellant’s counsel inexplicably failed to serve the PCRA

judge with a copy of the Rule 1925(b) statement. See Pa.R.A.P. 1925(b).

We decline to find waiver, however, as the docket does not reflect notice of

the entry of the order on Appellant. See In re L.M., 923 A.2d at 510. We

return to the procedural history.


                                        -3-
J. S67038/14

      Previously, Appellant’s counsel filed a Turner/Finley brief with this

Court without, inter alia, filing a petition to withdraw and complying with all

the requirements of Turner/Finley.      Appellant filed a pro se petition for

remand for appointment of new PCRA counsel. This panel struck counsel’s

brief, forwarded Appellant’s pro se petition to counsel per Commonwealth

v. Jette, 23 A.3d 2032 (Pa. 2011), and ordered counsel to, inter alia,

comply with Turner/Finley. Counsel has filed another Turner/Finley brief

and a petition to withdraw. Appellant did not file a pro se response.

      Appellant’s counsel raises the following issues:

         Is [Appellant’s] claim of ineffective assistance of counsel
         without merit?

         Were [Appellant’s] due process and constitutional rights
         violated when he entered a knowing, intelligent, and
         voluntary plea?

Appellant’s Turner/Finley Brief at 4.

      Prior to addressing the issues raised in the Turner/Finley brief, we

examine the following in evaluating counsel’s petition to withdraw:

         [I]ndependent review of the record by competent counsel
         is required before withdrawal is permitted.       Such
         independent review requires proof of:

         1) A “no-merit” letter by PCRA counsel detailing the nature
         and extent of his review;

         2) The “no-merit” letter by PCRA counsel listing each issue
         the petitioner wished to have reviewed;

         3) The PCRA counsel’s “explanation”, in the “no-merit”
         letter, of why the petitioner’s issues were meritless;



                                     -4-
J. S67038/14

         4) The PCRA court conducting its own independent review
         of the record; and

         5) The PCRA court agreeing with counsel that the petition
         was meritless.

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

(alterations and citations omitted).

      Further, the Widgins Court explained:

         The Supreme Court [in Commonwealth v. Pitts, 981
         A.2d 875 (Pa. 2009),] did not expressly overrule the
         additional requirement imposed by [Commonwealth v.
         Friend, 896 A.2d 607 (Pa. Super. 2006),] decision, i.e.,
         that PCRA counsel seeking to withdraw contemporaneously
         forward to the petitioner a copy of the application to
         withdraw that includes (i) a copy of both the “no-merit”
         letter, and (ii) a statement advising the PCRA petitioner
         that, in the event the trial court grants the application of
         counsel to withdraw, the petitioner has the right to
         proceed pro se, or with the assistance of privately retained
         counsel.

Id. at 818. Instantly, we have reviewed counsel’s petition to withdraw and

conclude it substantially4 complies with the requirements set forth by the

Widgins Court. See id. Accordingly, we proceed.

      We summarize Appellant’s arguments for both of his issues, as they

are interrelated.   He contends that before he pleaded guilty, trial counsel

was ineffective by not obtaining a non-exculpatory DNA lab test report.


4
  Appellant’s counsel failed to advise Appellant explicitly regarding the nature
and extent of his review. See Widgins, 29 A.3d at 817-18. Counsel’s
discussion of Appellant’s issues, however, evidences a review of the record.
See id.




                                       -5-
J. S67038/14

Appellant acknowledges the Commonwealth also did not have the lab test

report at the time of his plea hearing. Appellant claims that because he did

not have the lab report, his guilty plea was not knowingly entered. We hold

Appellant is not entitled to relief.

      “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, where there is

support for a PCRA court’s credibility determinations, the reviewing court is

bound by those determinations. Commonwealth v. Abu-Jamal, 720 A.2d

79, 93 (Pa. 1998).

      With respect to claims of counsel’s ineffectiveness, we state the

following as background:

         [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. 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.

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

(punctuation marks and citations omitted).



                                         -6-
J. S67038/14

      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).

      A failure to satisfy any prong of the test for ineffectiveness requires

rejection of the claim. Washington, 927 A.2d at 594. “In the context of a

PCRA proceeding, [the defendant] must establish that the ineffective

assistance of counsel was of the type ‘which, in the circumstances of the

particular case, so undermined the truth-determining process that no

reliable adjudication of guilt or innocence could have taken place.’”    Id.

(citations omitted).   The defendant must establish actual prejudice, or

demonstrate that the alleged act of ineffectiveness falls within a narrow

range of circumstances in which there is a presumption of prejudice.

Commonwealth v. Reed, 971 A.2d 1216, 1224-25 (Pa. 2009).

      This Court set forth the applicable law regarding counsel’s stewardship

during guilty plea colloquies:

            A criminal defendant has the right to effective counsel
         during a plea process as well as during trial. The law does
         not require that appellant be pleased with the outcome of
         his decision to enter a plea of guilty.        Instead, the


                                     -7-
J. S67038/14

       defendant must show that counsel’s deficient stewardship
       resulted in a manifest injustice, for example, by facilitating
       entry of an unknowing, involuntary, or unintelligent plea.
       The voluntariness of the plea depends on whether
       counsel’s advice was within the range of competence
       demanded of attorneys in criminal cases.          Therefore,
       allegations of ineffectiveness in connection with the entry
       of a guilty plea will serve as a basis for relief only if the
       ineffectiveness caused appellant to enter an involuntary or
       unknowing plea.

          Our law is clear that, to be valid, a guilty plea must be
       knowingly, voluntarily and intelligently entered. There is
       no absolute right to withdraw a guilty plea, and the
       decision as to whether to allow a defendant to do so is a
       matter within the sound discretion of the trial court. To
       withdraw a plea after sentencing, a defendant must make
       a showing of prejudice amounting to manifest injustice. A
       plea rises to the level of manifest injustice when it was
       entered into involuntarily, unknowingly, or unintelligently.
       A defendant’s disappointment in the sentence imposed
       does not constitute manifest injustice.

          In order to ensure a voluntary, knowing, and intelligent
       plea, trial courts are required to ask the following
       questions in the guilty 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 a 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 ranges of
       sentences and/or fines for the offenses charged?




                                   -8-
J. S67038/14

         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?

             The guilty plea colloquy must affirmatively demonstrate
         that the defendant understood what the plea connoted and
         its consequences. Once a defendant has entered a plea of
         guilty, it is presumed that he was aware of what he was
         doing, and the burden of proving involuntariness is upon
         him. . . . Furthermore, nothing in the rule precludes the
         supplementation of the oral colloquy by a written colloquy
         that is read, completed, and signed by the defendant and
         made a part of the plea proceedings.

Commonwealth v. Bedell, 954 A.2d 1209, 1212-13 (Pa. Super. 2008)

(punctuation and citations omitted).

       After careful consideration of the record, the parties’ briefs, and the

decision of the Honorable Maureen A. Skerda, we affirm on the basis of the

PCRA court’s opinion. See App. A to PCRA Ct. Op., 6/30/14, at 6-8 (holding

lab report that was neither inculpatory nor exculpatory provides no basis for

PCRA relief and plea of guilty was constitutionally sound).    We have also

conducted our own independent review of the record and discern no

meritorious issues.   See Widgins, 29 A.3d at 818.      Consequently, having

discerned no legal error, we grant counsel’s petition to withdraw and affirm

the order below. See Abu-Jamal, 941 A.2d at 1267; Perry, 959 A.2d at

936.

       Petition to withdraw granted. Order affirmed.

       Judge Donohue joins the memorandum.

       Judge Mundy concurs in the result.



                                       -9-
J. S67038/14




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/9/2015




                          - 10 -
                                                                                                Circulated 12/17/2014 11:22 AM




                               IN THE COURT OF COMMON PLEAS
                        OF THE 3ih JUDICIAL DISTRICT OF PENNSYLVANIA
                                   WARREN COUNTY BRANCH              n IJ:.";':
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                                           CRIMINAL                                              -   --_I~_.


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    JASON LEE WILSON

                               OPINION PURSUANT TO Pa.R.AP 1925(a)

         Presently before the Court is the appeal of Jason Lee Wilson ("Appellant") of an order
dismissing his Amended Petition for Post-Conviction Collateral Relief ("PCRA") following the
Court's appointment of Counsel and hearing on the matter. Appellant appeals the denial by the
Court of his Amended Petition for Post-Conviction Relief following a hearing at which
Petitioner was represented by Counsel. For this Court's findings and analysis, as well as a
procedural history of the case this Court would respectfully refer the honorable judges to this
Court's "Memorandum Opinion" dated April 17, 2014, and attached to this Opinion as
"Appendix A" However, this Court must also address a procedural issue.
         Following the above-referenced "Memorandum Opinion" issued by this Court,
Appellant, through his Court-appointed counsel Robert Kinnear, Esquire served this Court with
                                           1
Notice of Appeal on May 13,2013. Following receipt of said Notice, this Court entered an order
on May 13, 2014 directing Appellant to file a Concise Statement of Matters Complained of on
Appeal no later than twenty-one (21) days from the date of the Order. Twenty-one days having
passed, and with no service of Appellant's Concise Statement pursuant to Pa.R.AP. 1925(b) on
the Court,2 the Court Administrator, or the Court Reporter, this Opinion follows.
         Under the Pennsylvania Rules of Appellate Procedure Rule 1925(b), the Court may direct
an Appellant "to file of record in the trial court and serve on the judge a concise statement of
errors complained of on the appeal." Pa.R.AP. 1925(b). (emphasis added). In addition,
"Appellant shall file of record the statement and concurrently shall serve the judge ... service on
the judge shall be in person or by mail. .. " Pa.R.A.P. 1925(b)(1). Therefore, it is apparent that the


1Appellant was at all times relating to the appeal of this Court's decision represented by Attorney Robert Kinnear.
2In fact, this Court did eventually receive a copy of Appellant's "Concise Statement of Errors Complained of on
Appeal," albeit through the Warren County Clerk of Courts several weeks after filing.
                                                                                                        Circulated 12/17/2014 11:22 AM




    rule, by its plain language, requires Appellant to produce and serve directly on the trial court a
    response to the Court's request for a concise statement.
            Appellant, by and through his Attorney, were plainly advised in this Court's order that
    the Court had to be served with the statement of errors complained of on appeal. The
    Pennsylvania Supreme Court indicates that "in determining whether an Appellant has waived
    issues on appeal based on non-compliance with Pa.R.AP. 1925, it is the trial court's order that
    triggers an Appellant's obligation under the rule, and therefore, [the court will] first look to the
    language of that order." Berg v. Nationwide Mut. Ins. Co., 6 A3d 1002, 1007-1008, (Pa. 2010).
    Specifically, the Order issued by this Court read, in its entirety, as follows:


           AND NOW, this 13 th day of May, 2014, the trial court being served with Notice of
           Appeal by the Defendant of the order entered on April 17, 2014, IT IS ORDERED
           pursuant to Rule 1925(b) of the Rules of Appellate Procedure, the Appellant shall file of
           record and serve on the trial court in accordance with Rule 1925(b), a concise statement
           of the errors complained of on the appeal within twenty-one days from the date hereof
           Any issue not properly included in the Statement timely filed and served in accordance
           with Rule 1925(b) shall be deemed waived. (emphasis added)

In addition, the Supreme Court in Berg held that "Under these circumstances, where the trial
court's order is inconsistent with the requirements of Rule 1925(b)(3)(iii)3, we hold that the
waiver provisions of subsection (b)(4)(vii) do not apply." Berg, 6 A3d at 1011 (emphasis
added). While this holding may seem dispositive, there are significant factual distinctions
between the instant case and Berg that this Court believes allow the Appellant's appeal to be
quashed in spite of this ruling. The Supreme Court described the factual predicate to this case as
follows:
           [T]he trial court's order instructed Appellants to "file with the Court, and a copy with the
           trial judge, a Concise Statement of Errors Complained of on Appeal pursuant to
           Pa.R.AP. 1925(b) within twenty-one (21) days of the issuance of this order." Despite any
           suggestion to the contrary, the express language of his order did not instruct Appellants to
           serve a copy of their 1925(b) Statement on the trial judge; rather, it directed Appellants to
           file copies of their 1925(b) Statement with the court and with the trial judge. Although
           the instruction to file a document with a trial judge is an oddity, we conclude Appellants


3 Rule 1925(b)(3)(iii) reads as follows: "(b) Direction to file statement of errors complained of on appeal;
instructions to the appellant and the trial court ... (3) Contents of order. .. (iii) that the Statement shall be served on
the judge pursuant to paragraph (b )(1);"


                                                              2
                                                                                  Circulated 12/17/2014 11:22 AM




        substantially complied with this directive by presenting a copy to the prothonotary of
        Berks County.

  Id. at 1007-08 (emphasis added).
 There are two main distinctions between Appellants case and the case in Berg. In Berg, the trial
 court's order merely indicated that the Appellant should "file ... a copy with the trial judge." Id
This is admittedly a vague statement, and clearly fails to comply with Pa.R.A.P. 1925(b)(3)(iii).
Additionally, the Appellants in Berg, even though they were only instructed to "file ... a copy
with the trial judge" substantially complied with the order. In addition, the facts in Berg are very
distinct from the facts in this case:
        On January 17, 2008, at approximately 4: 14 p.m., counsel for Appellants arrived at the
        Berks County Prothonotary's Office to file Appellants' 1925(b) Statement. Counsel had
        three copies of the 1925(b) Statement time-stamped: one for the prothonotary; one for
        counsel's file; and one for the trial judge. Appellants' counsel avers that he did not know
        the precise location of Judge Stallone's chambers because Judge Stallone was on senior
        status and thus had no permanent assignment of a chambers or courtroom; accordingly,
        Appellants' counsel asked the prothonotary for the location of Judge Stallone's chambers
        so that he could personally deliver the judge's copy of the 1925(b) Statement. The
       prothonotary declined to specify a location where Judge Stallone could be found, and,
       instead, advised Appellants' counsel that the judge wanted only the "original" statement;
       that the judge was expecting the 1925(b) Statement; and that the prothonotary would
       deliver within ten minutes the 1925(b) Statement to the judge, who, it seems, was
       secreted away in the bowels of the Berks County Courthouse. According to Appellants'
       counsel, the prothonotary refused to accept more than one time-stamped copy of the
        1925(b) Statement, continually insisting that the "Court always wants 'the original.'"
Id at 1004.
Thus, Appellants in the above case attempted to substantially comply with the trial judge's order.
On the other hand, Appellant's counsel has failed to include the Court in his service. The Court
directed Appellant to file and serve this Court with his statement. This order, reproduced at page
two, is abundantly clear, and should be the more so because Appellant was represented by
Counsel, who presumably can read and interpret court orders. As of the date of this opinion, no
service of Appellant's 1925 Statement has been perfected on this Court, the Court Reporter, or
the Court Administrator. Additionally, the "Certificate of Service" attached by Appellant to the
Statement, and attached to this Opinion as "Appendix D" contains a certification by Attorney
Kinnear that he served the District Attorney and the Clerk of Courts.



                                                 3
                                                                             Circulated 12/17/2014 11:22 AM




       However, in the event that the Honorable Judges of the Superior Court determine that the
appeal should proceed, this Court would respectfully direct the Judges to the Court's earlier
"Memorandum Opinion," as stated above, when reviewing this Court's decision.


No further opinion of Court shall issue.




                                           M   REEN A SKERDA, PRESIDENT JUDGE
                                       Ju      dO, 2014




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                                                4
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                                                                                                                      ."
                                 IN THE COURT OF COMMON PLEAS
                          OF THE 3ih JUDICIAL DISTRICT OF PENNSYLVANIA
                                                                                                                       -r
                                     WARREN COUNTY BRANCH                                                              rn
                                             CRIMINAL                                                                  o
   COMMONWEALTH OF PENNSYLVANIA

                     v.                                                                            No. 359 of2008

  JASON LEE WILSON

                                           MEMORANDUM OPINION

           Presently before the Court for consideration is Jason Lee Wilson's (hereinafter
  "Petitioner") "Amended Motion for Post Conviction Collateral Relief."} Petitioner argues both
  ineffective assistance of counsel and constitutional claims. For the reasons set forth herein, and
  after an independent review of the record and hearing testimony of Petitioner and Petitioner's
  former criminal counsel in the above-captioned criminal proceedings, Petitioner is not entitled to
 post-conviction relief, and no purpose would be served by further proceedings.
          The factual background and partial appellate history of this case have been twice
 summarized by the Superior Court, and this Court would respectfully direct the parties to the
 background elucidated by that Court:


          Appellant's charges at docket number 359 of2008 arose after he broke into a bar that had
          closed for the night. When Appellant encountered the bartender, he beat her and choked
          her into unconsciousness. Appellant's charges at docket number 414 of 2008 pertained to
          his attempt to escape from custody during a proceeding on no. 359 convened to address
          the Commonwealth's petition to revoke bail. When the trial court granted the
         Commonwealth's petition, Appellant fled the courthouse and was apprehended a few
         blocks away after a brief pursuit. See Trial Court Opinion ("T. C. O. "), 2117/2012, at 1.
                  Subsequently, Appellant pleaded guilty at no. 359 to aggravated assault (extreme
         indifference) and criminal trespass. At the same proceeding, at no. 414, Appellant
         pleaded guilty to escape. On October 27, 2008, following Appellant's entry of his pleas,
         Appellant filed a Motion for Psychological Examination in Aid of Sentencing. The trial
         court denied this motion on October 28,2008.
                 Appellant's sentencing proceedings took place on November 21, 2008. At the
         outset, Appellant by oral motion sought a continuance to have a presentence

1 Petitioner's "Amended Motion for Post Conviction Collateral Relief' will be referred to as the Petitioner's
"PCRA" for sake of brevity.

                                                          1
                                                                                                  "APPENDIX A"
                                                                                  Circulated 12/17/2014 11:22 AM




        psychological evaluation performed at his own expense. The trial court again denied
        Appellant's motion. The trial court then permitted Appellant's counsel to address the
        court, after which the prosecutor did the same. Evidently, during the latter presentation
        the prosecutor made "disparaging remarks regarding Appellant's character." T.C.O. at 3.
        Appellant, then upset, according to the trial court, requested and was granted the
        opportunity to address the court. During his comments to the court, Appellant admitted
        the break-in, but denied the assault to which he had pleaded guilty, claiming that he had
        in his possession physical evidence proving that he did not attack the victim. Appellant
        concluded: "[T]he way [the prosecutor] just talked to me, I'd like to retract my plea."
       T.C.O. at 3. The court denied Appellant's oral motion for withdrawal and proceeded to
       sentencing. At no. 359, Appellant was sentenced to an aggregate 133 to 246 months'
       incarceration in state prison. At no. 414, he was sentenced to twenty-four to forty-eight
       months' incarceration, to run consecutively with his sentence at 359 of 2008. Thus,
       Appellant's aggregate sentence for the two informations was 147 to 294 months'
       incarceration.
               Appellant filed a Motion for Reconsideration of Sentence on December 1, 2008,
       challenging the trial court's refusal to consider Appellant's mental health diagnosis.
       Appellant did not challenge the trial court's refusal to permit Appellant to withdraw his
       guilty plea. The court denied Appellant's motion, Appellant filed a direct appeal to this
       Court, and we affirmed Appellant's judgment of sentence on October 16, 2009, at docket
      number 2154 WDA 2008.[1] On January 28, 2010, Appellant filed a petition pursuant to
      the Post-Conviction Relief Act, 42 Pa.C.S. §§ 9541, et seq., raising, inter alia, trial
      counsel's failure to appeal the trial court's refusal to permit Appellant to withdraw his
      plea. On that issue, the trial court denied relief following a hearing.[2] However,
      Appellant appealed, and this Court, at docket number 1824 WDA 2010, reversed and
      remanded for further proceedings. On remand, the PCRA court restored Appellant's right
      to filed [sic] a direct appeal nunc pro tunc .... [3] Thereafter, Appellant filed a timely
     notice of appeal, the trial court issued an order directing Appellant to file a concise
     statement of errors complained of on appeal pursuant to Rule 1925(b), and Appellant
     timely complied on February 3, 2012.
Comm. v. Wilson, 639 WDA 2013 (Pa. Super. Ct Filed October 25, 2013) unpublished
memorandum at 1-3, (quoting Comm. v. Wilson, 463 WDA 2012,62 A.3d 468 (Pa. Super. Filed
October 31, 2012), unpublished memorandum at 3-4 (original footnotes omitted». The Superior
Court affirmed this Court's decision on appeal, and Appellant filed a "Motion for Post
Conviction Collateral Relief' on January 9, 2013. On February 25, 2013, this Court issued an
order giving Petitioner notice of intent to dismiss the petition. Petitioner filed a response to the
Court's order, and on March 27,2013 the Court dismissed Petitioner's petition. Appellant filed a
"Notice of Appeal" on April 11, 2013. Appellant filed a Concise Statement of Matters


                                                 2


                                                                              "APPENDIX A"
                                                                                                          -
                                                                                                         fJo
                                                                                 Circulated 12/17/2014 11:22 AM




  Complained of on Appeal" on April 27, 2013, and this Court issued its "Memorandum Opinion
 Pursuant to Pa.R.A.P. 1925(a)" on May 24, 2013. The Superior Court issued an Opinion and
 Order on October 25,2013 vacating this Court's order and remanding the issue with instructions.
 Comm. v. Wilson, 639 WDA 2013 (Pa. Super. Ct. Filed October 25, 2013) unpublished
 memorandum at 7. Specifically, the Superior Court instructed that, because this Court reinstated
 the Petitioner's appeal rights nunc pro tunc, the matter constituted the Petitioner's first, rather
 than second PCRA and consequently Petitioner was entitled Counsel on the instant PCRA. [d. at
 5-6.
        As a consequence, this Court held a videoconference colloquy with the Petitioner on
 January 7, 2014 pursuant to the Superior Court opinion, Id at 7, and Comm. v. Grazier, 713 A.2d
 81, (Pa. 1998). At the Grazier colloquy hearing, the Petitioner advised this Court that he wished
 for the Court to appoint him counsel for his PCRA petition. By order on January 8, 2014, the
 Court appointed Robert D. Kinnear, Esquire, as counsel for the Petitioner, and granted Attorney
 Kinnear thirty days to file an amended Petition. On February 7, 2014, PCRA counsel submitted
 an amended petition for post-conviction relief, and the Court held hearing on the matter on
March 28, 2014. This opinion and order follow.
        In his amended petition, Petitioner through counsel addressed the following: "(1)
Whether Defendant's due process and/or constitutional rights were violated during plea
bargaining; (2) Whether the Defendant was entitled to all evidence, including any testing done
by a crime lab even though defendant pled guilty; (3) Whether the prosecutor committed
prosecutorial misconduct by withholding exculpatory evidence from the defense and the Court;
(4) Whether the Defense Counsel has a duty to investigate and should not rely on the information
the Prosecutor furnishes before consulting with the Defendant on whether the Defendant should
make a plea agreement or not; (5) Whether on appeal the Defendant's attorney has the right to
question the Courts 1925(a) opinion; (6) Whether the Defendant should have been out on bail
since January 2012 per rule 600(D)(2), which states that when an appellate court remanded a
case to the trial court for whatever reason trial must commence within 120 days; (7) Whether the
Judge should have recused himself since he was a witness to the second set of charges dealing
with the escape; (8) Whether Ross McKiernan, the District Attorney, should have recused
himself since he was a witness to the second set of charges dealing with the escape; and (9)
Whether Defense Counsel was ineffective since he did not object in a timely manner when the


                                                3
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                                                                                      Circulated 12/17/2014 11:22 AM




     Defendant wanted to withdraw his plea of guilty but was not allowed to." PCRA Counsel
     Kinnear detennined that issues (1)-(4) were meritorious, and issues (5)-(9) were meritless.
     Therefore, this Court held hearing only upon issues (1)-(4).
             At Petitioner's March 28, 2014 PCRA hearing, Petitioner first called Warren County
     Chief Public Defender, John Parroccini. Attorney Parroccini represented Petitioner during the
    timeframe put into question by the PCRA. He took over Petitioner's case in 2008 after Attorney
    Siegel withdrew his appearance on behalf of Petitioner. Attorney Parroccini had access to
    discovery, as well as transcripts of the preliminary hearing. Attorney Parroccini testified that the
    Commonwealth offered Petitioner what he perceived to be a good plea deal immediately prior to
    jury selection. He indicated that in Warren County, common practice is to pick a jury several
    weeks prior to trial, and that after this point plea negotiations generally cease. Therefore,
    Attorney Parroccini testified that when the Commonwealth offered Petitioner the possible plea,
    they were given a short window of time in which to decide whether to take the offer or leave it.
    He explained that he was ready to take the case to trial, but that he informed Petitioner of the
    maximum period of incarceration for his offense, and indicated that he had to freely and
    voluntarily make that decision for himself. In addition, Attorney Parroccini indicated that he
    fully discussed the consequences of a guilty plea with the Defendant, as well as his options
    regarding any guilty plea.
            The Petitioner also testified at hearing. He indicated that he did talk with Public Defender
    Parroccini, and indicated that Attorney Parroccini advised him that he was facing life for the
charges. Petitioner also indicated that he ultimately entered a plea of guilty on the day of jury
selection, after receiving the plea offer the Friday prior to jury selection.
           As a preliminary matter, counsel for Petitioner and the Commonwealth stipulated to the
admission of a lab report from the Erie Regional Laboratory of the Pennsylvania State Police that
Petitioner alleged contained exculpatory evidence. Counsel also indicated that the lab report,
entered as Petitioner's Exhibit 1, was not exculpatory in nature. The report contains inconclusive
evidence at best, and while the evidence contained in the report is not inclupatory, neither is it
exculpatory. Therefore, counsel concluded that the prosecutor was not required to produce the
evidence under the Brady rule. 2 Consequently, Petitioner's claims relating to prosecutorial
misconduct were rendered moot, and therefore counsel for Petitioner and the Commonwealth

2   See Brady v. Maryland, 373 U.S. 83, 87 (U.S. 1963).

                                                          4
                                                                                       "APPENDIX A"
                                                                                  Circulated 12/17/2014 11:22 AM




  stipulated that issue number three relating to prosecutorial misconduct had no merit. Based on
 the stipulation on the record, this Court did not address issues (2) and (3) during the hearing, and
 will not do so here. Therefore, the only remaining meritorious issues for the Court to consider in
 this petition are:
                 (1) Whether the Defendant's due process and constitutional rights were violated
                 during plea bargaining?; and

                 (4) Whether the Defense Counsel has a duty to investigate and should not rely on
                 the information the prosecutor furnishes to the before consulting with the
                 Defendant on whether Defendant should make a plea agreement or not?



        In order to prove an ineffective assistance of counsel claim, Petitioner must rebut a
 presumption of professional competence on the part of defense counsel. Comm. v. Gribble, 863
 A.2d 455, 460 (Pa. 2004) (citing Comm. v. Pierce, 786 A.2d 203, 213 (Pa. 2001)). In order to
 rebut said presumption, the Petitioner must show the following three elements: (1) his underlying
 claim is of arguable merit; (2) the particular course of conduct pursued by counsel did not have
some reasonable basis designed to effectuate his interests; and (3) but for counsel's
ineffectiveness, there is a reasonable probability that the outcome of the proceedings would have
been different. Comm. v. Morrison, 878 A.2d 102, 105 (Pa. Super Ct. 2005) (citing Gribble, 863
A.2d at 260). Failure to meet anyone of these elements constitutes a failure to meet the burden
required for the PCRA action. Id (citing Pierce, 786 A.2d 203, 213 (Pa. 2001)). "Where matters
of strategy and tactics are concerned, counsel's assistance is deemed constitutionally effective if
he chose a particular course that had some reasonable basis designed to effectuate his client's
interests." Comm. v. Lesko, 15 A.3d 345, 380 (Pa. 2011) (quoting Comm. v. Puksar, 951 A.2d
267, 277 (Pa. 2008)). Counsel's competence is presumed to have been effective, and judicial
review of counsel's decisions should be "highly deferential" Lesko, 15 A.3d at 380 (citing
Strickland v. Washington, 466 U.S. 668, 689 (U.S. 1984)). In order to succeed on an
ineffectiveness claim the Petitioner must prove that no reasonable, competent attorney would
have proceeded on the same course of action. Comm. v. Rega, 933 A.2d 997, 1018-1019 (Pa.
2007) (citing Comm. v. Williams, 640 A.2d 1251, 1265 (Pa. 1994)). The burden lies with the
petitioner to prove "that counsel's performance was deficient and that such deficiency prejudiced
him." Comm. v. Koehler, 36 A.3d 121, 132 (Pa. 2012) (citing Strickland, 466 U.S. at 687-91).

                                                5
                                                                               "APPENDIX A"
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                                                                                                           BJJ
                                                                                                      Circulated 12/17/2014 11:22 AM




              Petitioner argues that Public Defender Parroccini' s representation during plea
     negotiations was ineffective, as he had a duty to investigate and should not have relied on the
     assertions of the prosecutor when negotiating a plea. Petitioner has failed to prove both prongs
     (2) and (3) of the test elucidated in Morrison and indicated above. 3 First, it is clear that Petitioner
     has failed to rebut the presumption of competent representation regarding Attorney Parroccini's
     handling of strategy surrounding plea negotiations. As Attorney Parroccini testified at hearing,
     he was of the opinion that considering the charges Petitioner faced, including an Attempted
    Homicide charge, the Commonwealth proffered a generous plea deal. Additionally, Attorney
    Parroccini indicated that the Commonwealth offered the plea deal in the days immediately before
    jury selection, which gave him only a short amount of time to discuss with the defendant the
    offer and to allow his client to fully consider the deal. Indeed, Petitioner indicated to the
    Honorable William F. Morgan at the time of his change of plea that he had fully discussed the
    consequences of the plea with Attorney Parroccini and that he was satisfied with Mr.
    Parroccini's representation. Tr. of Change of Plea, Oct. 27, 2008, 7. Additionally, Attorney
    Parroccini indicated to the Court that he was ready to take this case to trial, but that he thought
    the Commonwealth offered a generous deal. Nothing that Petitioner has addressed in testimony
    rebuts the presumption of Attorney Parroccini's competence.
            In addition, Petitioner has clearly failed to prove that there would be a reasonable
    likelihood that competent representation would have changed the outcome of the case. Morrison,
    878 A.2d at 105. As indicated above, the alleged conduct in failing to investigate stems mainly
    from the lab report Petitioner requested but had not received at the time of the guilty plea. As
    stipulated to by counsel, this lab report was determined by the parties to be non-exculpatory in
nature, and as a consequence the prosecuting attorney for the Commonwealth was under no
obligation to tum the evidence over. Regardless of the Commonwealth's obligations, since this
piece of evidence was the issue raised by Petitioner in alleging ineffective assistance of counsel,
it must make it reasonably likely that the outcome of this case would change. The nature of the
evidence speaks for itself. Since the evidence was not exculpatory in nature, the likelihood of its
changing the outcome of the case is minimal.
            Finally, Petitioner makes the claim that his due process and constitutional rights were
violated during plea bargaining. Under the PCRA, a Petitioner is eligible for relief where "the

3   As Petitioner's argument fails as to both prongs (2) and (3), this Court need not discuss prong (1).

                                                             6
                                                                                                                             iJ."
                                                                                                    "APPENDIX A"
                                                                                                                             -
                                                                                  Circulated 12/17/2014 11:22 AM




  conviction or sentence resulted from ... (iii) A plea of guilty unlawfully induced where the
  circumstances make it likely that the inducement caused the petitioner to plead guilty and the
  petitioner is innocent." 42 Pa.C.S.A. §9543 (a)(2)(iii). In order to obtain relief, there must have
 been an unlawful coercion of a defendant during the plea process and this coercion must have
 been intentional. Comm. v. Dennis, 282 A.2d 371, 374 (Pa. 1971).
         Petitioner's claim attempts to bootstrap the Prosecutor's non-disclosure of ·alleged
 exculpatory evidence into an argument that plea bargaining violated his constitutional rights.
 Petitioner therefore appears to be arguing that the Commonwealth unlawfully                      and
 unconstitutionally induced his guilty plea, based on the prosecutor's non-disclosure of a single
 non-exculpatory lab report. With this in mind, the Petitioner has presented no evidence other
 than the inconclusive lab report during his hearing that would indicate the Commonwealth or
 Attorney Parroccini attempted to induce Petitioner to plead to the charges. On the contrary,
 Petitioner indicated during his plea colloquy that he was undertaking the plea of his own free
 will. Tr. of Change of Plea, Oct. 27, 2008, 6. This Court therefore concludes that Petitioner's
 Constitutional rights have not been violated in this respect.
        A guilty plea itself is only considered constitutionally valid where "the defendant
 understood what the plea connoted and its consequences," as affirmatively evidenced by the plea
court's colloquy. Comm. v. Rush, 909 A.2d 805, 808 (Pa. Super. Ct. 2006) (citing Comm. v.
Fluharty, 632 A.2d 312,314 (Pa. Super. Ct. 1993)). A plea of guilty is valid where, based on a
totality of the circumstances test, the conditions "surrounding the entry of the plea disclose that
the defendant had a full understanding of the nature and consequences of his plea and that he
knowingly and voluntarily decided to enter the plea." Rush, 909 A.2d at 808 (citing Fluharty,
632 A.2d 312, 314). "A criminal defendant who elects to plead guilty has a duty to answer
questions truthfully. We can not [sic] permit a defendant to postpone the final disposition of his
case by lying to the court" Comm. v. Cortino, 563 A.2d 1259, 1262 (Pa. Super. Ct. 1989) (citing
Comm. v. Edrington, 464 A.2d 456 (Pa. Super. Ct. 1983)). The presumption, therefore, is that
when a defendant answers questions from the court during colloquy relating to his or her plea, he
or she is aware of the significance of doing so. Rush, 909 A.2d at 808 (citing Comm. v. Pollard,
832 A.2d 517,522 (Pa. Super. 2003)).
       As indicated above, the totality of the circumstances indicate to this Court that the
Petitioner entered into his plea knowingly and voluntarily, and therefore his constitutional rights

                                                  7

                                                                               "APPENDIX A"
                                                                                                          -9'3$
                                                                                 Circulated 12/17/2014 11:22 AM




were not violated by the entry of the plea. It was clear from the testimony of Attorney Parroccini
that the consequences of a guilty plea were explained to Petitioner. In addition, Petitioner
answered in the affirmative during his plea colloquy that Mr. Parroccini explained the
consequences of his plea. Tr. of Change of Plea, Oct. 27, 2008, 7. When this is coupled with the
fact that the lab report that Petitioner contends unlawfully induced a plea was in fact not
exculpatory and therefore was ultimately inconsequential to his plea, it is apparent that Petitioner
was fully aware of the consequences of his plea, and that it was knowing, intelligent and
voluntary based on a totality of the circumstances.



                                   For the forgoing reasons, the Court enters the following order:




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                                                8

                                                                             "APPENDIX A"
                                                                            Circulated 12/17/2014 11:22 AM




                       IN THE COURT OF COMMON PLEAS
                OF THE 37th JUDICIAL DISTRICT OF PENNSYLVANIA
                            WARREN COUNTY BRANCH
                                   CRIMINAL

 COMMONWEALTH OF PENNSYLVANIA
                                                                                   J

                 v.                                                       No. 359 of2008

 JASON LEE WILSON


                                            ORDER


        AND NOW, ilii, tPday of April, 2014, upon consideration of Petitioner's
Petition for Post-Conviction Relief, after hearing held thereon, and for the reasons stated
in the accompanying Opinion and on the record, it is hereby ORDERED and DECREED
that said Petition is DISMISSED. Petitioner has thirty (30) days from the date of entry of
this Order in which to appeal this decision.
        The Clerk of Court, in addition to service upon the District Attorney and Robert
Kinnear, Esq. in the usual manner, shall serve a copy of this Order upon the Petitioner by
certified mail, return receipt requested.


                                               BY THE COURT:




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                                                                           "APPENDIX A"
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