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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA                :     IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                                            :
                    v.                      :
                                            :
HASAN COLLIER, JR.                          :
         Appellant                          :
                                            :     No. 3230 EDA 2015

                  Appeal from the PCRA Order October 8, 2015
                 In the Court of Common Pleas of Lehigh County
                Criminal Division No(s): CP-39-CR-0002635-2014


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

MEMORANDUM BY DUBOW, J.:                               FILED JUNE 24, 2016

        Appellant, Hassan Collier, Jr., appeals from the October 8, 2015 Order

denying his first Petition pursuant to the Post Conviction Relief Act (“PCRA”),

42 Pa.C.S. §§ 9541-9546, after a hearing. Appellant claims he was denied

effective assistance of counsel by Eric K. Dowdle, his trial counsel, and that

this ineffectiveness caused him to enter his guilty pleas in an unknowing and

involuntary manner. After careful review, we affirm.

        On November 20, 2014, Appellant pled guilty to one count each of

Criminal Attempt-Criminal Homicide and Firearms Not to be Carried without

a License.1     The charges arose after Appellant admitted to shooting the



*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S. § 901(a) and 18 Pa.C.S. § 6106(a)(1), respectively.
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victim, David Sanchez, in the arm and chest during an argument in a

laundromat. The victim identified Appellant as the shooter, following which

the police took Appellant into custody.    After police informed of Appellant

Miranda2 rights, he provided his inculpatory statement.       Appellant also

admitted that he had had a concealed .32 caliber handgun on his person at

the laundromat, and that he had placed the handgun used to shoot the

victim in the basement of his residence.

        On May 30, 2014, Appellant was charged with the crimes to which he

ultimately entered a guilty plea, as well as with two counts of Aggravated

Assault, and one count each of Possession with Intent to Deliver Cocaine,

Receiving Stolen Property, and Possession of Firearm By Minor.3, 4

        On June 18, 2014, while represented by privately retained counsel,

Eric K. Dowdle, Esq. Appellant waived his preliminary hearing.

        On November 20, 2014, Appellant entered his guilty plea. The parties

agreed under the terms of Appellant’s plea agreement that his sentences

could not exceed the standard range of the sentencing guidelines. However,




2
    Miranda v. Arizona, 384 U.S. 436 (1966).
3
  18 Pa.C.S. § 2702(a)(1) and (a)(4); 35 Pa.C.S. § 780-113(a)(30); 18
Pa.C.S. § 3925(a); and 18 Pa.C.S. 6110.1(a), respectively.
4
  The Commonwealth withdrew these charges following Appellant’s guilty
plea to Criminal Attempt-Criminal Homicide and Firearms Not to be Carried
without License.



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they left it to the sentencing judge to determine whether the sentences

would run concurrently or consecutively.

      On January 15, 2015, the trial court sentenced Appellant to a term of

eight to sixteen years’ incarceration on the Criminal Attempt-Criminal

Homicide charge, and two to four years’ incarceration on the Firearms Not to

be Carried without a License charge.       The trial court ordered that the

sentences run consecutively, for an aggregate sentence of ten to twenty

years’ incarceration.   The sentences for each charge were within the

standard range of the guidelines.

      Appellant filed a timely Post-Sentence Motion, which the trial court

denied on January 27, 2015.     Appellant did not file a Motion to Withdraw

Guilty Plea, or a direct appeal from his Judgment of Sentence.

      Appellant timely filed a pro se PCRA Petition on July 14, 2015, in which

he alleged that his trial counsel had been ineffective.       The trial court

appointed PCRA counsel, who filed an amended PCRA Petition on September

2, 2015. The trial court held a hearing on Appellant’s Petition on September

16, 2015, after which the court denied the Petition.

      Appellant filed a timely Notice of Appeal on October 27, 2015. Both

Appellant and the trial court complied with Pa.R.A.P. 1925.

      On appeal, Appellant challenges the court’s finding that Appellant’s

trial counsel had provided effective assistance.   He avers that his counsel

had been ineffective because he explained Appellant’s plea agreement in



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“such a manner as to make [Appellant] believe he would receive a minimum

sentence of no more than 78 months to 96 months.” Appellant’s Brief at 4,

9. Appellant also claims that his counsel was ineffective because he “talk[ed

Appellant] into pleading guilty rather than considering possible defenses or

preparing for trial”.       Id. at 4, 9.    Appellant argues that counsel’s

ineffectiveness resulted in an involuntary and unknowing plea.

      In order to establish eligibility for PCRA relief, a petitioner must prove

by a preponderance of the evidence that the conviction resulted from

“ineffective assistance of counsel, which in the circumstances of the

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

reliable adjudication of guilt or innocence counsel have taken place.” 42

Pa.C.S. § 9543(a)(2)(ii).

      Our “standard of review for an order denying post-conviction relief is

limited to whether the trial court's determination is supported by evidence of

record and whether it is free of legal error.” Commonwealth v. Allen, 732

A.2d 582, 586 (Pa. 1999). The PCRA court’s findings “will not be disturbed

unless there is no support for the findings in the certified record.”

Commonwealth v. Johnson, 945 A.2d 185, 188 (Pa. Super. 2008).

      Counsel is presumed to be effective and the appellant must prove

otherwise. Commonwealth v. Rivers, 786 A.2d 923, 927 (Pa. 2000).

      The test for ineffectiveness of counsel is as follows:

         [T]he appellant must overcome the presumption of
         competence by showing that: (1) his underlying claim is of


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          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 challenged proceeding would have
          been different.

Commonwealth v. Bomar, 826 A.2d 831, 855 (Pa. 2003).                Failure to

satisfy any prong of the test will result in rejection of the underlying claim.

Commonwealth v. Jones, 811 A.2d 994, 1002 (Pa. 2002).                    A PCRA

appellant must set forth and individually discuss substantively each prong of

the ineffective assistance of counsel test. See Commonwealth v. Jones,

876 A.2d 380, 386 (Pa. 2005); Commonwealth v. Wharton, 811 A.2d

978, 986 (Pa. 2002) (“Claims of ineffective assistance of counsel are not

self-proving. . . .”).

      The PCRA court’s conclusion that Appellant entered his guilty plea

knowingly and voluntarily is supported by the record. The court explained

its decision as follows:

          Appellant testified at the September 16, 2015 PCRA
          hearing that Attorney Dowdle never considered taking his
          case to trial. He explained that Attorney Dowdle waived
          [A]ppellant’s preliminary hearing and immediately began
          to negotiate a plea bargain with the Commonwealth.
          Appellant stated that Attorney Dowdle disregarded
          defenses he raised. Specifically, [A]ppellant said he told
          Attorney Dowdle that he was under the influence at the
          time he committed the crimes. Appellant also testified
          that Attorney Dowdle told him that he would not receive a
          minimum sentence that was more than seventy-eight to
          ninety-six months under the plea bargain.

          Attorney Dowdle testified at the PCRA hearing that at no
          time did [A]ppellant claim innocence.    Appellant fully


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       confessed to the crimes during a videotaped custodial
       police interrogation. Appellant told the police the location
       of the gun he used to shoot the victim and the police then
       found the gun.       Attorney Dowdle explained that he
       obtained discovery from the Commonwealth and reviewed
       it with [A]ppellant.     He testified that there were no
       suppression issues in this case and the he fully discussed
       possible defenses with [A]ppellant.           He informed
       [A]ppellant that voluntary intoxication was not a defense.
       Attorney Dowdle testified that taking the case to trial was
       never seriously discussed because a plea bargain was
       [A]ppellant’s best chance to limit prison time. Attorney
       Dowdle explained the plea bargain and the sentencing
       guidelines to [A]ppellant before the guilty plea hearing.
       He reviewed the pre-sentence report with [A]ppellant
       before sentencing.      He testified that he never told
       [A]ppellant he would receive a minimum sentence of no
       more than seventy-eight months to ninety-six months. He
       testified that he informed [A]ppellant of his maximum
       exposure under the plea bargain and explained to him that
       the court had the discretion to run the sentences on Count
       1 and 5 either consecutively or concurrently.

       As to the claim that Attorney Dowdle told [A]ppellant he
       would receive a minimum sentence of no more than
       seventy-eight months to ninety-six months, I accepted the
       testimony of Attorney Dowdle and I rejected the testimony
       of [A]ppellant. There was no credible evidence of the
       assurance that [A]ppellant alleged.          Furthermore,
       [A]ppellant’s claim in this regard was undercut by the
       record.    At the guilty plea hearing, both the district
       attorney and the court explained to [A]ppellant the terms
       of the plea bargain. At one point, I stated:

          THE COURT: [T]he worst that you are facing – I
          want you to understand the worst. Whether you get
          the worst or not I don’t know, but the worst that you
          are facing on the attempted homicide is a sentence
          of not less than ninety-six months to not more than
          twenty years. . . . On your firearms charge, the
          worst sentence you are facing there is twenty-four
          months to seven years. . . . Do you understand all
          of those things?



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            [APPELLANT]: Yes.

         I and the district attorney again explained the terms of the
         plea bargain at the beginning of [A]ppellant’s sentencing.
         At no point during the sentencing did [A]ppellant state his
         disagreement with the plea bargain described on the
         record. At the close of the hearing, I asked [A]ppellant if
         he understood the sentence that was imposed and
         [A]ppellant answered in the affirmative without any
         indication that something was amiss.

Trial Ct. Op., 11/20/2015, at 4-6 (citations omitted).

      Our review of the record, including the Notes of Testimony from the

guilty plea hearing, the sentencing hearing, and the PCRA hearing, confirm

the PCRA court’s conclusions.      The court accepted as credible Attorney

Dowdle’s testimony and rejected as incredible Appellant’s testimony.     The

court believed that Attorney Dowdle discussed with Appellant the option of

trial and whether Appellant had any potentially meritorious defenses to the

pending charges.

      The trial court aptly concluded that the record establishes that

Appellant knowingly and voluntarily entered his guilty pleas. Appellant did

not present the PCRA court with any evidence to overcome the presumption

that Attorney Dowdle provided him with effective assistance.       Therefore,

Appellant’s claim does not merit relief.

      Order affirmed. Jurisdiction relinquished.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/24/2016




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