J-S48029-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

CEDRIC ANTONIO GLASS,

                            Appellant                 No. 330 MDA 2014


                  Appeal from the PCRA Order January 15, 2014
              in the Court of Common Pleas of Lackawanna County
                Criminal Division at No.: CP-35-CR-0001866-2011


BEFORE: DONOHUE, J., JENKINS, J., and PLATT, J.*

DISSENTING MEMORANDUM BY PLATT, J.:              FILED FEBRUARY 09, 2015

        Because I conclude that Appellant has not shown that he is entitled to

an evidentiary hearing, I respectfully dissent. I would affirm the decision of

the trial court dismissing Appellant’s PCRA.

               A PCRA court is only required to hold a hearing where the
        petition, or the Commonwealth’s answer, raises an issue of
        material fact. When there are no disputed factual issues, an
        evidentiary hearing is not required. If a PCRA petitioner’s offer
        of proof is insufficient to establish a prima facie case, or his
        allegations are refuted by the existing record, an evidentiary
        hearing is unwarranted.

Commonwealth v. Eichinger, --- A.3d ---, 2014 WL 7404546, at *23 (Pa.

Super. December 31, 2014) (citations omitted).


____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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       Here, while correctly finding three of Appellant’s four issues waived,

the learned Majority remands for an evidentiary hearing on the remaining

issue, claiming that the trial court should not have dismissed Appellant’s

PCRA petition without a hearing because “certain questions remain” about

counsel’s failure to request a PSI. (Majority, at 6; see also Majority, at 5).

For the reasons discussed below, I disagree that Appellant has demonstrated

that there are any issues of material fact with respect to his vague and bald

claim that plea counsel was ineffective for failing to request a Pre-Sentence

Investigation Report

       In his pro se PCRA petition Appellant argued that plea counsel was

ineffective for not requesting a PSI because counsel:         “fail[ed] to inform

[him] of severity of [his] guilty plea without having a pre-sentence

investigation conducted first.” (PCRA petition, 11/27/12, at 7). The record

belies this claim, because it shows that the trial court informed Appellant of

the maximum sentences and then sentenced him well below the statutory

maximums in the standard range. (See N.T. Plea Hearing, 1/27/12, at 4,

6).

       Further, at the plea hearing, Appellant stated that he was satisfied

with   counsel’s   representation;    made   no   objection   to   proceeding   to

immediate sentencing; and requested that the sentencing court make him

eligible for either boot camp or RRRI, and the sentencing court granted that

request.   (See id. at 3, 5-6).      Following sentencing, Appellant asked the


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court to explain the sentence, which it did; Appellant then thanked the court.

(See id. at 6-7).

      The statements made during a plea colloquy bind a criminal defendant.

See Commonwealth v. Muhammad, 794 A.2d 378, 384 (Pa. Super.

2002).    A defendant cannot assert grounds for withdrawing the plea that

contradict statements made at that time. See Commonwealth v. Stork,

737 A.2d 789, 790-91 (Pa. Super. 1999), appeal denied, 764 A.2d 1068 (Pa.

2000). Thus, Appellant cannot now assert that counsel was ineffective for

failing to request a PSI. See Muhammad, supra at 384; Stork, supra at

790-91.

      Further, to the extent it can be determined from Appellant’s vague

argument, he appears to claim that plea counsel was ineffective for failing to

insist on a PSI because: (1) “necessary information” was not presented to

the sentencing court; (2) and the sentencing court “sentenced [Appellant] to

a period of incarceration of more than one (1) year”. (Appellant’s Brief, at

15-16). Appellant never specifies what “necessary information” was lacking

or how that information would have caused the trial court to impose a lesser

sentence. See id.; see also Commonwealth v. Johnson, 517 A.2d 1311,

1317 (Pa. Super. 1986) (counsel only ineffective for failing to request PSI

where contents of report would have caused sentencing court to impose

lesser sentence).




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      Moreover, I note that Appellant did not file a post-sentence motion or

direct appeal challenging the discretionary aspects of sentence.         Neither

does Appellant contend that plea counsel was ineffective for failing to file a

direct appeal challenging the discretionary aspects of sentence.

      It is settled that bald allegations of ineffective assistance of counsel do

not entitle an appellant to relief.   See Commonwealth v. Timchak, 69

A.3d 765, 774 (Pa. Super. 2013).        Here, because Appellant has offered

nothing but vague allegations that a PSI was necessary, I do not believe he

has met the threshold for holding an evidentiary hearing.        See Timchak,

supra at 774; McLaurin, supra at 1135-36; Johnson, supra at 1317.

Therefore, I would affirm the decision of the trial court.




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