J-S87032-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

RICKY LYNN HATFIELD

                            Appellant                No. 1953 MDA 2015


                 Appeal from the PCRA Order October 29, 2015
               In the Court of Common Pleas of Franklin County
              Criminal Division at No(s): CP-28-CR-0000214-2014


BEFORE: LAZARUS, J., SOLANO, J., and PLATT, J.*

MEMORANDUM BY LAZARUS, J.:                       FILED FEBRUARY 17, 2017

        Ricky Lynn Hatfield appeals from the order, entered in the Court of

Common Pleas of Franklin County, dismissing his petition filed pursuant to

the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. After

careful review, we affirm.

        On April 30, 2014, Hatfield entered a plea of nolo contendere to two

counts of aggravated assault by vehicle while driving under the influence

(DUI).1    The charges stemmed from an incident in which Hatfield, while

driving his tractor-trailer cab under the influence, veered off the roadway

and hit two men who were working on a disabled vehicle on the side of the

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    75 Pa.C.S.A. § 3735.1.
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road. The victims suffered serious injuries. On May 2, 2014, Hatfield filed a

motion to withdraw his plea, asserting that he “wants to wait and see if the

victims get out of their wheelchairs before making a decision on the plea

offer.” Motion to Withdraw Plea, 5/2/14, at ¶ 3. After a hearing, the court

denied Hatfield’s motion and, on May 28, 2014, sentenced him to an

aggregate term of 42 to 120 months’ imprisonment.

       On June 9, 2014, Hatfield filed a post-sentence motion to withdraw his

plea and for modification of sentence. The court held a hearing on July 31,

2014, at which Hatfield was represented by new counsel. The court denied

Hatfield’s motion that same day; no direct appeal was filed.

       On June 17, 2015, Hatfield filed a timely pro se PCRA petition and the

court appointed Shane Kope, Esquire, to represent him.         On August 27,

2015, Attorney Kope filed a “no-merit” letter pursuant to Turner/Finley2

and requested to withdraw as counsel. The court granted counsel’s request

on August 31, 2015, and entered an order pursuant to Pa.R.Crim.P. 907

notifying Hatfield of its intent to dismiss his petition.      Hatfield filed a

response to the court’s Rule 907 notice on September 18, 2015;3 the court

dismissed his petition on that same date.
____________________________________________


2
  See Commonwealth v. Turner, 544 A.2d 927                       (Pa.   1988);
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988).
3
 Hatfield’s response to the court’s Rule 907 notice was docketed on October
29, 2015, well past the 20 days authorized in the Rule 907 notice. However,
pursuant to the prisoner mailbox rule, the response, having been mailed on
(Footnote Continued Next Page)


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      Hatfield filed a timely notice of appeal and court-ordered statement of

errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).         Hatfield

raises the following issues, verbatim, for our review:

      1. Was the plea invalid pursuant to [Pa.R.Crim.P.] 590, in
      relation to the in court colloquy?

      2. Did the court abuse discretion in denying the motion to
      withdraw plea? (Without hearing) – (Which includes the
      underlying issue).

      3. Did [Hatfield] suffer ineffective assistance for the purpose of
      appeal?

      4. Did [Hatfield] suffer ineffective PCRA counsel, and was PCRA
      counsel[’]s Finley letter defective?

      5. Did [Hatfield] suffer a breach of plea agreement/promise
      prior to waiving his right to preliminary hearing?

      6. Is nunc pro tunc relief due [Hatfield], and should sentence be
      imposed based upon his knowledge of the plea?

      7. Pro se appellant was denied assistance of counsel at the time
      of sentencing.

Brief of Appellant, at 3.

      Our standard and scope of review for the denial of a PCRA petition is

well-settled.   We review the PCRA court’s findings of fact to determine

whether they are supported by the record, and review its conclusions of law

to determine whether they are free from legal error.     Commonwealth v.

                       _______________________
(Footnote Continued)

September 18, 2015, is deemed timely filed.        Commonwealth v.
Chambers, 35 A.3d 34, 38 (Pa. Super. 2011) (under prisoner mailbox rule,
pro se prisoner’s document deemed filed on date he delivers it to prison
authorities for mailing).




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Spotz, 84 A.3d 294, 311 (Pa. 2014). The scope of our review is limited to

the findings of the PCRA court and the evidence of record, viewed in the light

most favorable to the prevailing party at the trial level. Id.

      Before we address the merits of Hatfield’s claims, we must determine

whether he has properly preserved them for appellate review.          It is well-

settled that issues not raised before the PCRA court cannot be considered on

appeal.   Commonwealth v. Ousley, 21 A.3d 1238, 1242 (Pa. Super.

2011). Here, Hatfield’s pro se PCRA petition raised three claims, all of which

concerned the Commonwealth’s alleged breach of a pre-trial agreement

and/or trial counsel’s ineffectiveness with regard thereto.      Court-appointed

PCRA counsel reviewed the record and concluded that there were no non-

frivolous issues that could be raised on appeal.          Accordingly, counsel

submitted a Turner/Finley “no-merit” letter, in which he addressed the

claims raised in Hatfield’s pro se petition and concluded that the alleged

“agreement” upon which Hatfield’s claims were based was never accepted by

the PCRA court and was, therefore, merely executory and non-enforceable.

      On August 31, 2015, the PCRA court issued notice, pursuant to

Pa.R.Crim.P. 907, that it intended to dismiss Hatfield’s petition without a

hearing, and advised Hatfield of his right to respond within twenty days. On

October 29, 2015, the PCRA court received a letter from Hatfield postmarked

September 18, 2015, in which he again raised the issue of the purported

agreement with the Commonwealth, and counsel’s alleged ineffectiveness




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with regard thereto.   That same date, the PCRA court dismissed Hatfield’s

petition.

      Now, on appeal, Hatfield raises multiple issues that were not raised

before the PCRA court. Specifically, Hatfield challenges: the validity of his

plea due to an allegedly insufficient colloquy; the trial court’s denial of his

motion to withdraw his plea; the effectiveness of counsel for purposes of

direct appeal; the effectiveness of PCRA counsel; and the effectiveness of

counsel at the time of sentencing.      However, because Hatfield failed to

present these claims in his PCRA petition, or otherwise in the PCRA court

below, he has waived them on appeal. See Ousley, supra.

      Hatfield’s remaining two claims concern the Commonwealth’s alleged

breach of a purported plea agreement.       Specifically, Hatfield relies on a

letter sent to his attorney by Zachary Mills, Esquire, counsel for the

Commonwealth, in which the Commonwealth offered to allow Hatfield to

plead guilty to two counts of aggravated assault by vehicle and leaving the

scene of an accident, in exchange for the Commonwealth “standing silent at

time of sentencing.” Zachary Mills Letter, 1/24/14. The Commonwealth also

proposed “incentives” in exchange for Hatfield’s waiver of his preliminary

hearing, including “non-pursuit of summary offenses, plus the potential for

continued plea negotiations.” Id. Hatfield claims that “he was led to believe

that by abandoning his right to [a] preliminary hearing he would only receive

two counts of aggravated assault.” Brief of Appellant, at 25.




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       Instead, Hatfield says, he was charged with and pled guilty to two

counts of aggravated assault by vehicle while DUI, a more serious charge.

Hatfield claims that, by not allowing him to plead to only aggravated assault,

and by requesting that the court sentence Hatfield “in the                  upper,

[a]ggravated      sentencing      range,”      the   Commonwealth    breached   its

agreement. Furthermore, by misleading him into believing the foregoing to

be true, Hatfield asserts that plea counsel was ineffective.         This claim is

waived and without merit.

       Pursuant to section 9544(b) of the PCRA, an issue is deemed waived if

the petitioner “could have raised it but failed to do so before trial, at trial,

. . . on appeal, or in a prior postconviction proceeding.”          42 Pa.C.S.A. §

9544(b). Here, Hatfield filed a motion to withdraw his guilty plea in which

the only basis he presented for withdrawal was his desire to “wait and see if

the victims get out of their wheelchairs before making a decision on the plea

offer.” Motion to Withdraw Nolo Contendere Plea, 5/2/14, at ¶ 3. Hatfield

could have, but chose not to, assert at that time his claim that the

Commonwealth breached the agreement purportedly set forth in Attorney

Mills’ letter of January 24, 2014. Because he could have raised the claim in

earlier proceedings but failed to do so, he has waived it for purposes of the

PCRA.4

____________________________________________


4
 We note that Hatfield chose to represent himself at the hearing held on his
motion to withdraw his plea after requesting that his counsel be dismissed.
(Footnote Continued Next Page)


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      In any event, the claim is meritless.            The letter upon which Hatfield

bases his claim is nothing more than an offer. Hatfield presents no evidence

that the parties actually came to a meeting of the minds with regard to the

specific proposal outlined in Attorney Mills’ letter. Even if they had, Hatfield

was not entitled to specific performance of any plea agreement unless and

until it was approved by the court.              “Where a plea agreement has been

entered of record and accepted by the trial court, the state is required to

abide by the terms of the plea agreement. However, prior to the entry of a

guilty plea, the defendant has no right to specific performance of an

‘executory’ agreement.” Commonwealth v. Postie, 110 A.3d 1034, 1042

(Pa. Super. 2015). Moreover, at the time he entered his plea, Hatfield was

aware of the charges to which he was pleading guilty. Although the guilty

plea hearing transcript is not included in the certified record,5 in his written

plea colloquy Hatfield clearly acknowledged:            (1) the charges to which he

was   pleading    guilty;     (2)   that    he   was   satisfied   with   his   counsel’s

representation; and (3) that no threats or promises had been made to him

to persuade him to plead nolo contendere. See Plea Agreement, 4/30/14, at
                       _______________________
(Footnote Continued)

However, upon questioning by the Commonwealth, Hatfield stated that he
was “satisfied with the written motion to withdraw [his] nolo contendre plea”
filed by his former counsel. N.T. Motion to Withdraw Plea Hearing, 5/21/14,
at 6.
5
 It is an appellant’s burden to ensure that the certified record contains the
documents reflecting the facts needed for review. Commonwealth v.
Wrecks, 931 A.2d 717, 722 (Pa. Super. 2007).



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4-5.    A defendant is bound by statements made during his plea colloquy,

and may not later offer reasons for withdrawing the plea that contradict

statements made when he pled. Commonwealth v. McCauley, 797 A.2d

920, 922 (Pa. Super. 2001). Accordingly, Hatfield may not now claim that

he did not understand that he would be pleading to aggravated assault by

vehicle while DUI rather than aggravated assault. Furthermore, because the

underlying claim is meritless, Hatfield’s related ineffectiveness of trial

counsel claim entitles him to no relief. See Commonwealth v. Paddy, 15

A.3d 431, 442 (Pa. 2011) (To prevail on ineffectiveness claim, petitioner

must establishing all of the following:         (1) underlying legal claim has

arguable merit; (2) counsel had no reasonable basis for his or her action or

inaction;   and   (3)    petitioner   suffered prejudice   because   of counsel’s

ineffectiveness).

       Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/17/2017




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