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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.                               :
                                                 :
                                                 :
    MATTHEW CHRISTIAN MILISITS                   :
                                                 :
                        Appellant                :   No. 1411 WDA 2018

            Appeal from the PCRA Order Entered September 5, 2018
    In the Court of Common Pleas of Westmoreland County Criminal Division
                      at No(s): CP-65-CR-0004743-2012


BEFORE: GANTMAN, P.J.E., LAZARUS, J., and PELLEGRINI, J.*

MEMORANDUM BY PELLEGRINI, J.:                               FILED JANUARY 2, 2020

        Matthew Christian Milisits (Milisits) appeals pro se1 from the order of the

Court of Common Pleas of Westmoreland County (PCRA court) denying his

first petition filed pursuant the Post-Conviction Relief Act (PCRA), 42 Pa.C.S.

§ 9541-9546. Milisits alleges that plea counsel and his three appointed PCRA

attorneys rendered ineffective assistance. We affirm.

        We glean the following facts from the record.           In 2012, Milisits was

charged     with     criminal   homicide,      aggravated   assault,   simple   assault,


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*   Retired Senior Judge assigned to the Superior Court.

1 While this is Milisits’ first PCRA petition, he waived his right to counsel and
elected to proceed pro se following a hearing pursuant to Commonwealth v.
Grazier, 713 A.2d 81 (Pa. 1998).
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endangering the welfare of a child and recklessly endangering another person

for causing the death of his two-month-old daughter, S.L.2 S.L.’s cause of

death was Shaken Baby Syndrome and her injuries included bruising, skull

fractures, rib fractures, brain swelling and detached retinas. She sustained

the injuries during a two-hour time frame when she was in Milisits’ sole care.

       In 2014, Milisits entered an open guilty plea to third-degree murder and

was sentenced to the statutory maximum penalty of 20 to 40 years’

imprisonment. We affirmed the judgment of sentence. Commonwealth v.

Milisits, 352 WDA 2015 (Pa. Super. Sept. 29, 2015).

       On December 21, 2016, Milisits filed his first, timely PCRA petition. The

next day, Milisits’ direct appeal counsel filed a separate PCRA petition on his

behalf. The PCRA court scheduled a hearing on the petitions, but on the date

of the hearing, Milisits requested that the counseled petition be withdrawn and

that he be appointed new counsel.              The PCRA court granted this request.

Milisits’ second PCRA attorney filed a no-merit letter and petition to withdraw

pursuant to Turner/Finley3 in November 2017 and the PCRA court issued a

notice of intent to dismiss the petition in January 2018.




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218 Pa.C.S. § 2501(a); 18 Pa.C.S. § 2702(a)(1); 18 Pa.C.S. § 2701(a)(1);
18 Pa.C.S. § 4304(a)(1); 18 Pa.C.S. § 2705.

3Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v.
Finley, 550 A.2d 213 (Pa. 1988) (en banc).


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      Milisits then filed a pro se response to the notice of intent to dismiss

alleging, inter alia, that his counsel had been ineffective in litigating his PCRA

claims.   The PCRA court then granted counsel’s motion to withdraw and

appointed a third attorney to represent Milisits in the PCRA proceedings. With

leave of the PCRA court, counsel filed an amended PCRA petition that raised

the same claims Milisits had raised in his initial pro se petition. The PCRA

court again found that no meritorious issues had been raised and issued an

order dismissing the petition without a hearing.

      Milisits filed a timely pro se notice of appeal and his counsel also filed a

separate notice of appeal on his behalf. Milisits then wrote a letter to the

PCRA court informing the court that his third PCRA counsel had been

ineffective and that he wished to have new counsel appointed or represent

himself pro se on appeal. The PCRA court allowed counsel to withdraw and

determined that Milisits had knowingly, intelligently and voluntarily waived his

right to representation for this appeal. Milisits timely filed a concise statement

of issues complained of on appeal pursuant to Pa.R.A.P. 1925(b). The PCRA

court filed a responsive statement relying on its earlier opinions in support of

the notice of intent to dismiss and order dismissing the petition.




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       On appeal, Milisits first argues that the PCRA court abused its discretion4

in dismissing his petition because plea counsel rendered ineffective assistance.

He argues that plea counsel advised him to plead guilty to third-degree murder

without investigating or informing him of possible defenses. He also argues

that plea counsel promised him that he would be sentenced to a maximum of

ten years of incarceration, and that plea counsel should have objected to the

plea colloquy because it did not inform him of the elements of third-degree

murder or the facts underlying the plea. We disagree.

       “[T]o   succeed     on    an   ineffectiveness   claim,   a   petitioner   must

demonstrate that: the underlying claim is of arguable merit; counsel had no

reasonable basis for the act or omission in question; and he suffered prejudice

as a result[.]”    Commonwealth v. Laird, 119 A.3d 972, 978 (Pa. 2015)

(citations omitted). “[F]ailure to prove any of these prongs is sufficient to

warrant dismissal of the claim without discussion of the other two.”

Commonwealth v. Robinson, 877 A.2d 433, 439 (Pa. 2005) (citation

omitted).

       [C]laims of counsel’s ineffectiveness in connection with a guilty
       plea will provide a basis for relief only if the ineffectiveness caused
       an involuntary or unknowing plea. . . . The law does not require
       that appellant be pleased with the outcome of his decision to enter
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4 “This Court analyzes PCRA appeals in the light most favorable to the
prevailing party at the PCRA level. Our review is limited to the findings of the
PCRA court and the evidence of record[.]” Commonwealth v. Rigg, 84 A.3d
1080, 1084 (Pa. Super. 2014) (citations and internal quotation marks
omitted).


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      a plea of guilty: All that is required is that [appellant’s] decision
      to plead guilty be knowingly, voluntarily and intelligently made.

      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. Therefore, where the record clearly
      demonstrates that a guilty plea colloquy was conducted, during
      which it became evident that the defendant understood the nature
      of the charges against him, the voluntariness of the plea is
      established. A defendant is bound by the statements he makes
      during his plea colloquy, and may not assert grounds for
      withdrawing the plea that contradict statements made when he
      pled.

Commonwealth v. McCauley, 797 A.2d 920, 922 (Pa. Super. 2001)

(citations omitted).

      Moreover, in evaluating the sufficiency of a plea colloquy, “whether a

defendant is aware of the nature of the offenses depends on the totality of the

circumstances, and a plea will not be invalidated premised solely on the plea

court’s failure to outline the elements of the crimes at the oral colloquy.”

Commonwealth v. Morrison, 878 A.2d 102, 108 (Pa. Super. 2005) (en

banc). A defendant may acknowledge that he was informed of the elements

of the charges against him by counsel on the record or in a written guilty plea

colloquy. Id. at 107, 109 (“It is apparent that Appellant was aware of the

nature of the offenses because he executed a document admitting that he was

advised of the offenses outlined in the information, which detailed the

elements of those offenses.”). A colloquy is sufficient if the totality of the

circumstances reveal that the defendant was aware of the elements of the




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crimes to which he pled guilty, as well as the factual predicate for the plea.

Id.; Commonwealth v. Martinez, 453 A.2d 940, 943 (Pa. 1982).

      A review of the testimony from Milisits’ plea hearing reveals that he

repeatedly affirmed that he understood the charge to which he was pleading

guilty, was aware of the maximum possible sentence that could be imposed,

and had discussed all available defenses with counsel. Notes of Testimony,

Guilty Plea Hearing, 9/5/14, at 8-11.      The factual basis for the plea was

incorporated from the Criminal Information, and Milisits further confirmed that

he knew he was pleading guilty to “intentionally, knowingly, recklessly or

negligently” causing S.L.’s death. Id. at 3-4, 8. Milisits further attested in

his written plea colloquy that his attorney had counseled him regarding “all

possible defenses that [he] might have,” the elements of the offenses, the

maximum possible sentence of incarceration, and all applicable sentencing

guideline ranges. See Guilty Plea Petition, 9/5/14, at 1-2. The form does not

list a negotiated sentence, instead only listing the maximum possible sentence

that could be imposed. Id. at 2-3. Milisits wrote on the form that he was

pleading guilty “because I am guilty.” Id. at 4. Milisits is bound by these

statements that he made under oath in support of his guilty plea.         See

McCauley, supra.     The record does not support Milisits’ claims that plea

counsel did not inform him of possible defenses, that he was promised a lesser




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sentence, and that his colloquy was defective.5       Accordingly, this claim is

meritless.

       Milisits next claims that his three appointed PCRA counsel were

ineffective for failing to diligently pursue his claim that plea counsel rendered

ineffective assistance.6 However, this argument presumes that his underlying

challenge to the effectiveness of his plea counsel has merit, and we have

rejected that claim. PCRA counsel cannot be ineffective for failing to pursue

a meritless claim.      Commonwealth v. Rykard, 55 A.3d 1177, 1190 (Pa.

Super. 2012). Accordingly, this claim is also meritless.

       Order affirmed.




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5  Milisits’ claim that plea counsel did not adequately investigate possible
defenses is based on an expert report which concludes that S.L.’s death was
not necessarily caused by Shaken Baby Syndrome. See Appendix E to Milisits’
Brief. However, this report is in the form of a letter addressed to Milisits’ plea
counsel and dated March 19, 2014, well before Milisits entered his guilty plea.
Therefore, there is no evidence to support the assertion that plea counsel did
not investigate this possible defense, and it appears from the record that plea
counsel was, in fact, aware of this defense prior to the guilty plea hearing. As
noted above, Milisits’ averments at the plea hearing indicate that he discussed
all possible defenses with counsel.

6 Milisits has preserved this claim for our review by raising it in his concise
statement and in response to the PCRA court’s notice of intent to dismiss his
petition. See Commonwealth v. Rykard, 55 A.3d 1177, 1186-87 (Pa.
Super. 2012).

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/2/2020




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