J-S38021-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    DONALD PAUL MILLIREN, JR.                  :
                                               :
                       Appellant               :   No. 1513 WDA 2017

                Appeal from the PCRA Order September 8, 2017
      In the Court of Common Pleas of Venango County Criminal Division at
                        No(s): CP-61-CR-0000275-2013


BEFORE:      BOWES, J., NICHOLS, J., and STRASSBURGER, J.*

MEMORANDUM BY NICHOLS, J.:                           FILED OCTOBER 17, 2018

        Appellant Donald Paul Milliren, Jr. appeals from the order denying his

timely first Post Conviction Relief Act1 (PCRA) petition. Appellant argues that

the PCRA court erred in denying his claims regarding the ineffective assistance

of counsel and violations of his right to counsel for a preliminary hearing. We

affirm.

        On May 5, 2013, Appellant approached Paul Snyder near Reisenman

Avenue in Franklin, Venango County, displayed a knife, and demanded the

keys to Snyder’s car.       Snyder complied, and Appellant drove Snyder’s car

away from the scene. At some time that same day, Appellant took a bag from

the vehicle of Dana Bahm.            The bag contained Bahm’s personal items,

____________________________________________
*   Retired Senior Judge assigned to the Superior Court.

1   42 Pa.C.S. §§ 9541-9546.
J-S38021-18


including an iPod, which were valued at over $200. A police officer responded

to a report of the robbery of Snyder’s car and filed a criminal complaint that

same day.

       According to the complaint, Appellant and Bahm were formerly in a

relationship.    Criminal Compl., Aff. of Probable Cause, 5/5/13. Before the

incidents in question, Appellant and Bahm stayed at a motel in Erie County.

Appellant drove Bahm’s car to Venango County and parked near Snyder’s

vehicle. Appellant took Snyder’s car and left Bahm’s car at the scene. When

contacted by the police, Bahm reported that Appellant took the key to her car

while she was sleeping and did not have permission to use her car. Appellant

was taken into formal custody on May 8, 2013.2

       The magisterial district court’s docket shows that the court initially

scheduled a preliminary hearing for May 15, 2013. The court continued the

hearing because the Commonwealth’s witness was unavailable.         The court

then continued hearings scheduled for May 22 and May 29, 2013, for Appellant

to obtain counsel. On June 12, 2013, Appellant waived his right to counsel

and his preliminary hearing, and the court bound the matter over to the court

of common pleas.




____________________________________________
2 The record does not recount the precise circumstances of Appellant’s arrest.
It appears, however, that Appellant was arrested and then hospitalized before
being jailed on the charges on May 8, 2013.



                                           -2-
J-S38021-18


        On July 18, 2013, the Commonwealth charged Appellant with eight

counts, including the robbery of Snyder’s motor vehicle, a first-degree felony,

and the theft from Bahm’s motor vehicle, a first-degree misdemeanor.3

Following a hearing on Appellant’s finances, the trial court directed the public

defender’s office to represent Appellant.        Thereafter, the public defender

assigned Charles W. Phillips, II, Esq. (plea counsel) to represent Appellant.

        On September 23, 2013, the trial court ordered a mental health

examination of Appellant to determine whether he could be found guilty but

mentally ill.4 Charles Romero, M.D. found that Appellant had a severe mental

disease or defect and lacked a substantial capacity to appreciate the

wrongfulness of his conduct or conform his conduct to the requirements of the

law.5    On January 21, 2014, Appellant filed a motion to plead guilty but

mentally ill.

        The trial court convened a plea hearing on January 27, 2014. Following

a colloquy, Appellant offered his plea of guilty but mentally ill to the robbery

of Snyder’s motor vehicle and the theft from Bahm’s motor vehicle. The court

accepted Appellant’s plea and deferred sentencing for the preparation of a

presentence investigation report (PSI).




____________________________________________
3   18 Pa.C.S. §§ 3702(a) and 3934(a), respectively.

4   See 18 Pa.C.S. § 314.

5   See Appellant’s Mot. to Plead Guilty but Mentally Ill, 1/21/14, at ¶ 3.


                                           -3-
J-S38021-18


       Shortly after Appellant’s plea, plea counsel left the public defender’s

office. The public defender’s office assigned Jeannine Botta Guth, Esq. (post-

plea counsel) to represent Appellant.

       On March 19, 2014, the trial court sentenced Appellant to 6½ to 13

years’ imprisonment for the robbery of Snyder’s motor vehicle and a

consecutive 5 years’ probation for the theft from Bahm’s motor vehicle.

Appellant did not file a post-sentence motion or take a direct appeal. Post-

plea counsel filed a motion to withdraw from representation on April 23, 2014,

asserting that the time for taking an appeal had expired. The court granted

post-plea counsel’s request to withdraw the following day.

       On April 20, 2015, the PCRA court docketed Appellant’s timely pro se

PCRA petition, his first.6 The PCRA court initially appointed counsel, who filed

a first amended petition. However, the court determined there was a conflict

with counsel’s representation of Appellant and appointed John C. Lackatos,

Esq. (present counsel) to represent Appellant.

       On April 18, 2017, present counsel filed a second amended petition,

raising the following relevant claims: (1) post-plea counsel’s failure to file

post-sentence motions or a direct appeal; (2) plea counsel’s failure to

investigate possible defenses; (3) plea counsel’s misrepresentations of the

____________________________________________
6 The one-year time limitation for filing a PCRA petition expired on Saturday,
April 18, 2015. See 42 Pa.C.S. § 9545(b)(1). Therefore, the docketing of
Appellant’s pro se petition on Monday, April 20, 2015, made his petition
timely. See 1 Pa.C.S. § 1908.



                                           -4-
J-S38021-18


terms of the plea agreement; (4) a violation of Appellant’s right to counsel at

a preliminary hearing; and (5) plea counsel’s ineffectiveness for failing to

argue the denial of the right to counsel at a preliminary hearing.

       The PCRA court held evidentiary hearings on April 25, 2017, and August

29, 2017. Appellant testified in support of his claims. Plea counsel and post-

plea counsel also testified.7 On September 14, 2017, the PCRA court issued

its findings and an order denying Appellant’s petition.

       Appellant timely filed a notice of appeal on October 5, 2017, and

complied with the PCRA court’s order to file a Pa.R.A.P. 1925(b) statement.

This appeal follows.

       Appellant presents five questions for review, which we have reordered

as follows:

       [1.] Did the [PCRA] court err in not finding [post-plea counsel]
       ineffective for her failure to file a post-sentence motion and/or
       direct appeal as timely requested by [Appellant]?

       [2.] Did the [PCRA] court err in not finding [that plea counsel]
       provided ineffective assistance of counsel to [Appellant] by his
       failure to investigate the Commonwealth’s evidence against
       [Appellant]’s factual defenses by counsel’s failure to obtain:

          a) telephone records between [Bahm] and [Appellant];

          b) the absence of police reports by [Bahm] indicating her car
          was stolen; and


____________________________________________
7 Additionally, the Commonwealth called present counsel’s wife, who was a
prison advocate when Appellant was held in county prison. Appellant
expressly waived the potential conflict in having present counsel cross-
examine his wife.


                                           -5-
J-S38021-18


           c) failure to obtain surveillance video from Country Fair?

       [3.] Did the [PCRA] court err in not finding [plea counsel]
       misrepresented the Commonwealth’s plea bargain, thereby
       wrongfully [inducing Appellant]’s guilty plea?

       [4.] Did the [PCRA] court err in not granting [Appellant] a new
       preliminary hearing where he was not afforded appointed counsel
       and where he was mentally ill in that he lacked the capacity to
       waive counsel?

       [5.] Did the [PCRA] court err in not finding [that plea counsel]
       provided ineffective assistance of counsel to [Appellant] by his
       failure to preserve the issue of [Appellant] not being afforded
       appointed counsel, and where he was mentally ill in that he lacked
       the intellectual capacity to waive counsel?

See Appellant’s Brief at 1-2.

       Appellant’s five questions focus on three distinct areas: (1) post-plea

counsel’s failure to file a direct appeal; (2) plea and post-plea counsels’

ineffectiveness with respect to the validity of his plea; and (3) violations of his

right to counsel for a preliminary hearing.          We will address Appellant’s

arguments in each area below.

       Initially, we note that our standard of review from the denial of PCRA

relief “is limited to examining whether the PCRA court’s determination is

supported by the evidence of record and whether it is free of legal error.”

Commonwealth v. Ousley, 21 A.3d 1238, 1242 (Pa. Super. 2011) (citation

omitted). “This Court grants great deference to the findings of the PCRA court

if   the   record   contains   any   support   for   those   findings.    Further,

the PCRA court’s credibility determinations are binding on this Court, where

there is record support for those determinations.” Commonwealth v. Willis,


                                       -6-
J-S38021-18


68 A.3d 997, 1001 (Pa. Super. 2013) (citation omitted). Moreover, “[t]his

Court may affirm the PCRA’s court’s denial of relief on any grounds if the

record supports it.”      Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa.

Super. 2012).

       To establish a claim of counsel’s ineffectiveness, a petitioner must

overcome the presumption that counsel was effective by proving “(1) that the

underlying claim has merit; (2) counsel had no reasonable strategic basis for

his or her action or inaction; and (3) but for the errors or omissions of counsel,

there is a reasonable probability that the outcome of the proceedings would

have been different.” Ousley, 21 A.3d at 1244 (citation omitted). “The failure

to prove any one of the three prongs results in the failure of petitioner’s claim.”

Id.

    1. Post-plea counsel’s failure to file a direct appeal

       Appellant first challenges post-plea counsel’s failure to file a direct

appeal. As noted above, Appellant was sentenced on March 19, 2014. The

time for filing a direct appeal ended on April 18, 2014. See Pa.R.A.P. 903(a),

(c)(3). Post-plea counsel did not file post-sentence motions or a direct appeal.

On April 23, 2014, post-plea counsel filed a motion to withdraw, and on April

24, 2014, the trial court granted counsel’s request to withdraw.8




____________________________________________
8 Post-plea counsel and the trial court served the respective motion to
withdraw and order granting post-plea counsel’s request on Appellant.



                                           -7-
J-S38021-18


       A review of the record further reveals the following. At the first PCRA

evidentiary hearing on April 25, 2017, Appellant testified that he asked post-

plea counsel to file an appeal. See N.T. PCRA Hr’g Vol. 1, 4/25/17, at 74.

       At the second PCRA hearing on August 29, 2017, Appellant reiterated

that immediately after sentencing, he told post-plea counsel that he wanted

“to appeal this.” N.T. PCRA Hr’g Vol. 2, 8/29/17, at 32. Appellant also averred

that he wrote post-plea counsel a letter on April 14, 2014, four days before

the time for a direct appeal expired. See id. at 32. Appellant marked and

admitted a carbon copy of the letter dated April 14, 2014, as an exhibit.9 Id.

at 33. Appellant claimed that he mailed the letter that same day, but did not

hear back from post-plea counsel.10 Id. He asserted that he did not attempt

to contact post-plea counsel after sending the letter because he heard that

the time for a direct appeal expired. Id.

       Post-plea counsel did not recall any conversations with Appellant

following sentencing. Id. at 16. She also did not recall seeing Appellant’s

letter. Id. at 15. However, she noted that Appellant’s letter was not in the

public defender’s file. Id. at 18. Post-plea counsel testified that she would

not have moved to withdraw if Appellant asked for an appeal. Id. at 17-18.

____________________________________________
9The certified record does not contain a copy of Appellant’s letter, which was
marked and admitted at the hearing as Petitioner’s Exhibit 4.

10 Appellant did not provide any additional proof of the date he mailed the
letter. Cf. Commonwealth v. Jones, 700 A.2d 423, 426 (Pa. 1997)
(discussing the types of evidence a pro se prisoner may present to prove
compliance with the prisoner mailbox rule).


                                           -8-
J-S38021-18


      Appellant presently contends that he requested a direct appeal on two

occasions.   Appellant’s Brief at 14.    He concludes that post-plea counsel’s

“failure to act on the twice given requests . . . clearly show [post-plea

counsel’s] failure to serve her client.” Id.

      This Court has noted that

      counsel’s unexplained failure to file a requested direct appeal
      constitutes ineffective assistance per se, such that the petitioner
      is entitled to reinstatement of direct appeal rights nunc pro
      tunc without establishing prejudice. However, before a court will
      find ineffectiveness of counsel for failing to file a direct appeal, the
      petitioner must prove that he requested a direct appeal and the
      counsel disregarded the request.

Ousley, 21 A.3d at 1244.

      Instantly, the PCRA court determined that Appellant did not request an

appeal. Specifically, the court found that post-plea counsel testified credibly

that Appellant did not request an appeal at the time of sentencing. Findings,

9/14/17, at 6.    As to the copy of Appellant’s letter, the court noted that

Appellant did not introduce the letter until the second evidentiary hearing and

that the public defender’s file did not contain a copy of the letter. Id. at 6-7.

The court also noted post-plea counsel’s testimony that she did not recall

seeing the letter and withdrew from representation after the time for appeal

had expired. Id. at 7.

      Therefore, despite the conflicting testimony and evidence regarding

Appellant’s request for a direct appeal, the PCRA court credited post-plea

counsel’s testimony over Appellant’s testimony and evidence. See Findings



                                        -9-
J-S38021-18


at 6.    The record supports the court’s findings of fact, and its credibility

determination is binding on this Court.       See Willis, 68 A.3d at 1001.

Moreover, we discern no abuse of discretion in the court’s ultimate conclusion

that Appellant did not request a direct appeal.       Accordingly, Appellant’s

argument that counsel disregarded his express requests for a direct appeal

fails. See Ousley, 21 A.3d at 1244.

   2. Plea and post-plea counsel’s alleged ineffectiveness with
      respect to Appellant’s plea

        Appellant next argues that plea and post-plea counsels’ ineffectiveness

should invalidate his plea. Appellant asserts that plea counsel was ineffective

for failing to investigate possible defenses and misrepresenting the sentencing

consequences of his plea agreement. Appellant also contends that post-plea

counsel was ineffective for failing to move to withdraw his plea before and

after sentencing.

        The record reveals the following context to Appellant’s assertions.

Appellant testified that during plea negotiations he asked plea counsel to

investigate possible defenses. According to Appellant, he told counsel that

phone records, surveillance videos, and Bahm’s failure to report her car as

missing would rebut Bahm’s initial report that Appellant took Bahm’s car

without her permission.      N.T. PCRA Hr’g Vol. 1, at 23-28. According to

Appellant, such evidence was relevant to show he did not steal Bahm’s car

and, therefore, lacked a motive to steal Bahm’s bag or the intent to deprive

her of her property. Id. at 25, 64-65.


                                     - 10 -
J-S38021-18


       Plea counsel testified that during his discussions with Appellant,

Appellant admitted most of the underlying conduct giving rise to the charges

but “wasn’t mentally all there.” Id. at 92. Plea counsel averred that he did

not recall Appellant’s alleged discussion regarding possible defenses. Id. at

96-98. According to plea counsel, Appellant told him “he felt bad about it and

he wanted to get help.”         Id. at 93.     After receiving Dr. Romero’s report

regarding Appellant’s mental health, plea counsel and Appellant discussed a

plea of guilty but mentally ill. Id.

       During plea negotiations, the Commonwealth advised Appellant that it

would not seek the former 5-year mandatory minimum sentence for visible

possession of a deadly weapon.11 Id. at 103. Appellant testified that when

plea counsel told him that the mandatory minimum sentence would not apply,

he believed that his total sentence would be under 5 years. Id. at 39. Further,

the record establishes that plea counsel and the Commonwealth believed




____________________________________________
11See 42 Pa.C.S. § 9712. In Commonwealth v. Valentine, 101 A.3d 801
(Pa. Super. 2014), this Court expressly held that former section 9712 was
unconstitutional based on Alleyne v. United States, 570 U.S. 90 (2013).
Valentine, 101 A.3d at 812. Alleyne was decided in 2013, but Valentine
was decided on October 3, 2014, seven months after sentencing in the instant
case.



                                          - 11 -
J-S38021-18


Appellant’s prior record score (PRS) was “1” during plea negotiations.12 As

discussed below, however, Appellant’s PRS was “REFEL.” 13

       At the plea hearing, the trial court conducted an extensive colloquy of

the rights a defendant waived by entering a plea of guilty. Appellant thereafter

admitted the conduct giving rise to his convictions and sentence, specifically,

that (1) he threatened Snyder with a knife and took Snyder’s keys and car

and (2) he took a bag from Bahm’s car and that Bahm’s bag contained items

valued over $200. N.T. Plea Hr’g, 1/27/14, at 30-34. The trial court reviewed

the terms of the plea agreement and apprised Appellant that he was pleading

guilty but mentally ill to robbery of Snyder’s vehicle and the theft from Bahm’s

vehicle.    Id. at 34-35.       Appellant acknowledged the terms of the plea

agreement and affirmed that he did not receive any promises beyond the

scope of the agreement. Id. at 35, 37. Appellant further acknowledged that

he had time to discuss his situation with plea counsel and was satisfied with

plea counsel’s performance.14 Id. at 37.


____________________________________________
12During his consultations with Appellant, for example, plea counsel testified
that he reviewed the sentencing guidelines with Appellant based on a PRS of
1. N.T. PCRA Hr’g Vol. 1, at 103.

13 See 204 Pa. Code § 303.4(a)(2) (defining “REFEL” as a repeat felony 1 and
felony 2 offender).

14 The trial court further noted that Appellant’s responses during the guilty
plea colloquy were “highly appropriate.” N.T. Plea Hr’g at 28. The court also
discussed Appellant’s mental health state with plea counsel. Plea counsel
averred that he was satisfied that Appellant was able to understand the guilty
plea hearing. Id.


                                          - 12 -
J-S38021-18


      At sentencing, the Commonwealth noted that during plea negotiations,

it believed that Appellant’s PRS was “1,” but the PSI revealed a prior offense

that increased Appellant’s PRS to “REFEL.” N.T. Sentencing, 3/19/14, at 40-

41.   Additionally, post-plea counsel indicated that plea counsel’s notes

indicated the deadly weapon used enhancement (DWE) would not apply. Id.

at 48. The trial court determined that Appellant’s PRS was REFEL. The trial

court further determined that the DWE applied based on Appellant’s use of a

knife to take Snyder’s car and that the plea agreement did not prohibit the

application of the DWE.

      The trial court apprised Appellant of the suggested range of minimum

sentences under the DWE. Immediately before imposing sentence based on

Appellant’s PRS and the application of the DWE, the trial court offered

Appellant opportunities to consult with post-plea counsel and withdraw his

plea based on the misunderstandings. See id. at 48-50. Appellant declined

to withdraw his plea. See id. at 50.

      With this background in mind, we proceed to consider Appellant’s

assertions that (a) plea counsel was ineffective for failing to investigate

possible defenses; (b) plea counsel was ineffective for misrepresenting the

possible sentences of the plea agreement; and (c) post-plea counsel was

ineffective for failing to seek withdrawal of Appellant’s plea before or after

sentencing.

         (a)   Plea counsel’s alleged failure to investigate possible defenses



                                    - 13 -
J-S38021-18


      Appellant claims that his plea was invalid because plea counsel failed to

investigate possible defenses that could have raised reasonable doubt to the

charges to which he pled guilty. Appellant asserts that plea counsel should

have rebutted Bahm’s report that Appellant took her car while she was

sleeping and without her consent. Appellant’s Brief at 3-4. Appellant further

contends that plea counsel was ineffective for failing to investigate his claims

that phone records would establish he was in contact with Bahm as he was

driving her car and surveillance video would contradict Bahm’s account of

when Appellant took her car. Id.

      It is well settled that

         a criminal defendant’s right to effective counsel extends to
         the plea process, as well as during trial. However,
         [a]llegations 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. Where the defendant enters
         his plea on the advice of counsel, the voluntariness of the
         plea depends on whether counsel’s advice was within the
         range of competence demanded of attorneys in criminal
         cases.

      “[T]he law does not require that [the defendant] be pleased with
      the outcome of his decision to enter a plea of guilty: All that is
      required is that [his] decision to plead guilty be knowingly,
      voluntarily, and intelligently made.”

      With regard to an attorney’s duty to investigate, the Supreme
      Court has noted that the reasonableness of a particular
      investigation depends upon evidence known to counsel, as well as
      evidence that would cause a reasonable attorney to conduct a
      further investigation. With regard to the voluntariness of a plea,
      a guilty plea colloquy must “affirmatively demonstrate the
      defendant understood what the plea connoted and its
      consequences.” Once the defendant has entered a guilty plea, “it


                                     - 14 -
J-S38021-18


       is presumed that he was aware of what he was doing, and the
       burden of proving involuntariness is upon him.” Competence to
       plead guilty requires a finding that the defendant comprehends
       the crime for which he stands accused, is able to cooperate with
       his counsel in forming a rational defense, and has a rational and
       factual understanding of the proceedings against him.


Willis, 68 A.3d at 1001-02 (citations omitted). As to prejudice, the petitioner

“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.”

Commonwealth v. Barndt, 74 A.3d 185, 192 (Pa. Super. 2013) (citation

and quotation marks omitted).

       Instantly, a review of the record establishes that Appellant’s plea was

knowing, intelligent, and voluntary notwithstanding Appellant’s assertions of

possible defenses.      The trial court conducted an extensive colloquy before

Appellant entered his plea.        Appellant admitted threatening Snyder with a

knife and taking his car, as well as taking Bahm’s bag from Bahm’s car with

the intent of depriving her of personal items. See N.T. Plea Hr’g at 30-34.

Furthermore, Appellant’s suggested defenses that he had Bahm’s permission

to use her car bear no relation to the charges to which he pled.15 Accordingly,

Appellant failed to establish prejudice. See Barndt, 74 A.3d at 192; see also

Ford, 44 A.3d at 1194.

          (b)    Plea counsel’s purported ineffectiveness for misrepresenting
                 the sentencing consequences of the plea agreement

____________________________________________
15 We add that Appellant does not challenge the validity of his plea based on
his mental state.


                                          - 15 -
J-S38021-18


       In support of his claim that plea counsel misrepresented the terms of

the plea agreement, Appellant suggests that he believed the plea agreement

covered a single misdemeanor-two offense. Appellant’s Brief at 7. Appellant

also asserts that plea counsel indicated that Appellant’s sentence would be

under 5 years. Id. at 13. He contends that he only offered his plea based on

this understanding of his sentence. Id. Appellant argues that he is entitled

to withdraw his plea based on Commonwealth v. Hickman, 799 A.2d 136

(Pa. Super. 2002). Id.

       In Hickman, counsel advised the defendant that he was eligible for boot

camp and could be released from prison in 2 years. Hickman, 799 A.2d at

141.   However, the defendant was statutorily ineligible for the boot camp

program and could not be paroled for 4 years.         Id.   The Hickman Court

concluded that counsel’s legally unsound advice resulted in prejudice as the

defendant asserted that he believed that entering his plea offered his only

chance for boot camp. Id.

       Here, Appellant’s initial suggestion that he believed the entry of his plea

was limited to a second-degree misdemeanor lacks any basis in the record.

Instead, Appellant’s testimony at the PCRA hearing focused on his belief that

his sentence would be under 5 years based on the Commonwealth’s decision

not to seek a mandatory minimum sentence and plea counsel’s review of the




                                      - 16 -
J-S38021-18


sentencing guidelines.       See N.T., PCRA Hr’g Vol. 1 at 39-40.16   See id.

However, Appellant did not testify that plea counsel expressly advised him

that his total sentence would be under 5 years. See id.

       Moreover, we agree with the PCRA court that the sentencing transcript

belies his claim for relief that his plea was unknowing or involuntary. See

Findings at 5-6. As noted above, before imposing sentence, the trial court

advised Appellant that the suggested minimum sentence range for the robbery

of Snyder’s motor vehicle was 78 to 90 months based on his PRS of REFEL

and the application of the DWE. Furthermore, the trial court offered Appellant

opportunities to consult with post-plea counsel and withdraw his plea.

Appellant, however, elected not to withdraw his plea before the court imposed

its sentence.

       Accordingly, Appellant’s reliance on Hickman is misplaced. Appellant

failed to establish that counsel misrepresented the nature of his plea or that

the entry of his plea was involuntary or unknowing such that he would have

proceeded to trial. See Hickman, 799 A.2d at 141. Despite being advised

he could be sentenced over 5 years, Appellant did not take the opportunity to

withdraw his plea. See N.T. Sentencing at 50. Therefore, Appellant has not


____________________________________________
16 Appellant recalled that plea counsel indicated his minimum sentence would
be 36 to 48 months. However, this suggests that plea counsel explained the
standard range minimum sentence using the DWE matrix based on a PRS of
1. See 204 Pa. Code § 303.17(b) (suggesting a range of 36 to 48 months
based on a PRS of 1 and the offense gravity score of 9 applicable to robbery
of a motor vehicle).


                                          - 17 -
J-S38021-18


demonstrated any error or abuse of discretion in the PCRA court’s rejection of

this claim. See Ousley, 21 A.3d at 1242.

         (c)   Post-plea counsel’s failure to seek withdrawal of Appellant’s
               plea before or after sentencing

      Appellant also claims that post-plea counsel was ineffective for failing to

seek to withdraw Appellant’s plea before or after sentencing. Appellant’s Brief

at 7, 14-15.

      A petitioner claiming ineffective assistance of counsel based on the

failure to file a motion to withdraw a plea must demonstrate prejudice. See

Commonwealth v. Diehl, 61 A.3d 265, 268 (Pa. Super. 2013). The following

precepts govern our consideration of whether prejudice resulted from

counsel’s alleged disregard of a petitioner’s request to withdraw a plea.

      At any time before the imposition of sentence, the court may, in
      its discretion, permit, upon motion of the defendant, or direct sua
      sponte, the withdrawal of a plea of guilty or nolo contendere and
      the substitution of a plea of not guilty. Although there is no
      absolute right to withdraw a guilty plea, properly received by the
      trial court, it is clear that a request made [b]efore sentencing . . .
      should be liberally allowed. Thus, in determining whether to grant
      a pre-sentence motion for withdrawal of a guilty plea, the test to
      be applied by the trial courts is fairness and justice. If the trial
      court finds any fair and just reason, withdrawal of the plea before
      sentence should be freely permitted, unless the prosecution has
      been substantially prejudiced. As a general rule, the mere
      articulation of innocence [is] a fair and just reason for the pre-
      sentence withdrawal of a guilty plea unless the Commonwealth
      has demonstrated that it would be substantially prejudiced.

                                      ***

      In contrast, after the court has imposed a sentence, a defendant
      can withdraw his guilty plea only where necessary to correct a
      manifest injustice. [P]ost-sentence motions for withdrawal are


                                     - 18 -
J-S38021-18


      subject to higher scrutiny since courts strive to discourage the
      entry   of   guilty  pleas    as   sentencing-testing    devices.

                                      ***

      To be valid [under the manifest injustice standard], a guilty plea
      must be knowingly, voluntarily and intelligently entered. [A]
      manifest injustice occurs when a plea is not tendered knowingly,
      intelligently, voluntarily, and understandingly.

Commonwealth v. Kpou, 153 A.3d 1020, 1022-23 (Pa. Super. 2016)

(citations and quotation marks omitted).

      As stated above, Appellant declined to withdraw his plea at the

sentencing hearing.    This fact alone undermines Appellant’s claim that he

requested plea counsel to withdraw his plea before the sentencing hearing.

Similarly, the PCRA court’s finding that Appellant did not seek a direct appeal

suggests that Appellant did not seek withdrawal of his plea after sentencing.

Therefore, Appellant’s assertions that he asked post-plea counsel to withdraw

his plea lack merit. In any event, Appellant did not establish fair and just

reasons or manifest injustice warranting the withdrawal of his plea. See id.

Accordingly, Appellant has not established arguable merit or prejudice with

respect to his claim that post-plea counsel disregarded his requests to

withdraw his plea.

   3. Alleged violations of Appellant’s right to counsel for a
      preliminary hearing

      In his final claim for relief, Appellant asserts that his right to counsel for

a preliminary hearing was violated.      He further suggests plea counsel was

ineffective for failing to protect his rights for a preliminary hearing.


                                      - 19 -
J-S38021-18


      It is undisputed that the magisterial district court twice continued the

preliminary hearing in order for Appellant to obtain counsel. Subsequently, at

the hearing date scheduled for June 12, 2014, Appellant signed forms waiving

his right to a preliminary hearing and his right to counsel.

      Appellant testified at the PCRA hearing that he was in jail during the

continuances of the preliminary hearing, and he contacted different attorneys

but that he was unable to afford private counsel.       On June 12, 2014, he

advised the magisterial district court that he wanted an attorney. According

to Appellant, the court told him that he would have to waive his right to a

preliminary hearing or proceed without an attorney. N.T. PCRA Hr’g Vol. 1 at

11-12. Appellant asserted that the court “made me waive my rights” and that

he “didn’t know what was going on.” Id. at 12. Appellant further testified

that he informed plea counsel he was not competent to waive his preliminary

hearing, he suffered from a mental illness, and he wanted a new preliminary

hearing.

      Plea counsel, as noted above, asserted that Appellant admitted his

involvement in most of the crimes and stated that he felt bad and wanted to

get help.   Id. at 92-93.     Plea counsel did not recall whether Appellant

expressed an interest in having a preliminary hearing. Id. at 97-98. However,

plea counsel opined that based on Appellant’s statements to him and the

reports of the incidents, the Commonwealth would have been able to establish

a prima facie case. Id. at 98.



                                     - 20 -
J-S38021-18


      The PCRA court concluded that “when [Appellant] entered the plea of

guilty, which the [c]ourt found . . . was intelligently, voluntarily and

understandingly tendered, [Appellant] waived any errors relating to the

preliminary hearing.”   Findings at 3.    The court further agreed with plea

counsel that a “preliminary hearing would not have accomplished any net

benefit to [Appellant].” Id.

      This Court has long held that the denial of a defendant’s preliminary

hearing rights does not warrant relief unless the defendant suffers actual

prejudice.   See Commonwealth v. Bastone, 467 A.2d 1339, 1341 (Pa.

Super. 1983); Commonwealth v. Bowman, 325 A.2d 818, 819 (Pa. Super.

1974). Moreover, in Bowman, this Court held:

      [A] guilty plea also constitutes a waiver of any objection to a
      denial of the preliminary hearing itself. Therefore, even though
      the denial of a preliminary hearing is ordinarily reversible error in
      Pennsylvania, the appellant must show that its denial had some
      affect upon the voluntariness of his guilty plea, or that defect is
      waived.

Bowman, 325 A.2d at 819 n.3 (citations omitted).

      In light of the foregoing principles, we agree with the PCRA court that

Appellant failed to establish prejudice with respect to his preliminary hearing

rights. Notably, Appellant has failed to establish that his plea was unknowing

or involuntary. Similarly, given the absence of any viable defenses to the

charges to which he pled, we discern no basis to conclude Appellant

established prejudice. See id. Furthermore, Appellant had the opportunity

to withdraw his plea before the trial court sentenced him, but did not avail


                                     - 21 -
J-S38021-18


himself of that opportunity. In light of these circumstances, we discern no

abuse of discretion or error of law in the PCRA court’s conclusion that even if

there were defects in Appellant’s waiver of his preliminary hearing rights, no

relief was due.

          In sum, after review of the record, Appellant’s arguments, and the PCRA

court’s findings, we discern no basis to disturb the PCRA court’s order denying

relief.

          Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/17/2018




                                       - 22 -
