J-S85025-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA


                   v.

BENJAMIN FRANCIS DEASEY

                        Appellant                  No. 1390 EDA 2016


             Appeal from the PCRA Order December 21, 2015
             in the Court of Common Pleas of Chester County
           Criminal Division at No(s): CP-15-CR-0000025-2014


BEFORE: PANELLA, J., RANSOM, J., and MUSMANNO, J.

MEMORANDUM BY RANSOM, J.:                     FILED DECEMBER 21, 2016

     Appellant, Benjamin Francis Deasey, appeals from the December 21,

2015 order denying his petition filed under the Post Conviction Relief Act

(PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.

     On August 6, 2014, Appellant entered into a negotiated plea

agreement to one count of robbery in the first degree, one count of criminal

conspiracy to commit robbery, and one count of involuntary manslaughter.

That same day, Appellant received an aggregate sentence of six to twelve

years of incarceration followed by one year of probation. Appellant did not

pursue a direct appeal from his judgment of sentence.

     On August 24, 2015, Appellant timely filed, pro se, a petition seeking

relief under the PCRA. Counsel was appointed and filed a petition seeking

leave to withdraw pursuant to Commonwealth v. Turner, 544 A.2d 927
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(Pa. 1988) and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super.

1988).      On November 17, 2015, the court granted counsel’s petition to

withdraw and gave Appellant notice pursuant to Pa.R.Crim.P. 907 that his

petition would be dismissed within twenty days. Appellant untimely filed a

response to the court’s notice. On December 21, 2015, the court dismissed

Appellant’s petition.

       Appellant timely appealed1 and filed a court-ordered Pa.R.A.P. 1925(b)

statement. In response, the court adopted its Order of November 17, 2015

in lieu of a Pa.R.A.P. 1925(a) opinion.

       Herein, Appellant raises five issues, which we have restated for

clarity:2

       1. Appellant’s request to withdraw his guilty plea should have
       been granted as counsel was ineffective in advising him to plead
       guilty; due to Appellant’s shock and trauma, he was not able to
       tender a knowing, intelligent, and voluntary guilty plea.

____________________________________________


1
  On April 12, 2016, the court reinstated Appellant’s direct appeal rights
nunc pro tunc, as the court’s orders giving Appellant notice of its intent to
dismiss, and dismissing his PCRA petition, had been sent to the wrong
prison. See Order, 4/12/16, at 1.
2
  Appellant’s brief does not comply with the Pennsylvania Rules of Appellate
Procedure, Pa.R.A.P. 2111-2133. For example, his statement of questions
involved pursuant to Pa.R.A.P. 2116 does not list the questions he seeks to
raise on appeal but instead, appears to attack the statement of his co-
defendant. His statement of the case pursuant to Pa.R.A.P. 2117 consists of
a three-page long paragraph, devoid of citations to the record. However, as
the general points raised in his argument section appear to correspond to
the issues raised in his Pa.R.A.P. 1925(b) statement, we decline to find
waiver. See Commonwealth v. Levy, 83 A.3d 457, 461 n.2 (Pa. Super.
2013) (declining to find waiver where omissions do not impede review).



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      2. Appellant was entitled to a new trial based upon counsel’s
      alleged forgery of Appellant’s signature on legal documents
      waiving his right to a preliminary hearing.

      3. Counsel was ineffective for failure to investigate Appellant’s
      claims of innocence.

      4. Appellant was entitled to a new trial based upon newly
      discovered evidence, consisting of unspecified statements and
      police reports, that the testimony of his co-defendant had been
      tainted by detectives investigating the case.

      5. Appellant’s PCRA counsel was ineffective for failure to file an
      Amended PCRA and for seeking to withdraw representation.

Appellant’s Brief at 13-16.

      We review an order denying a petition under the PCRA to determine

whether the findings of the PCRA court are supported by the evidence of

record and free of legal error. Commonwealth v. Ragan, 923 A.2d 1169,

1170 (Pa. 2007). We afford the court’s findings deference unless there is no

support for them in the certified record.    Commonwealth v. Brown, 48

A.3d 1275, 1277 (Pa. Super. 2012) (citing Commonwealth v. Anderson,

995 A.2d 1184, 1189 (Pa. Super. 2010)). There is no absolute right to an

evidentiary hearing.   See Commonwealth v. Springer, 961 A.2d 1262,

1264 (Pa. Super. 2008). On appeal, we examine the issues raised in light of

the record “to determine whether the PCRA court erred in concluding that

there were no genuine issues of material fact and denying relief without an

evidentiary hearing.” Springer, 961 A.2d at 1264.

      First, Appellant claims that his guilty plea was not voluntary, asserting

that he was pressured by detectives and was suffering from psychological



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trauma and shock.         As a result, he argues that counsel’s advice that he

plead guilty constituted ineffective assistance. Appellant’s Brief at 13.

      We presume counsel is effective.       Commonwealth v. Washington,

927 A.2d 586, 594 (Pa. 2007). To overcome this presumption and establish

the ineffective assistance of counsel, a PCRA petitioner must prove, by a

preponderance of the evidence that: “(1) the underlying legal issue has

arguable merit; (2) counsel’s actions lacked an objective reasonable basis;

and (3) actual prejudice befell the petitioner from counsel’s act or omission.”

Commonwealth v. Johnson, 966 A.2d 523, 533 (Pa. 2009) (citations

omitted).   “A petitioner establishes prejudice when he demonstrates that

there is a reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different.” Id. A claim

will be denied if the petitioner fails to meet any one of these requirements.

Commonwealth v. Springer, 961 A.2d 1262, 1267 (Pa. Super. 2008)

(citing Commonwealth v. Natividad, 938 A.2d 310, 322 (Pa. 2007));

Commonwealth v. Jones, 942 A.2d 903, 906 (Pa. Super. 2008).

      We review allegations of counsel’s ineffectiveness in connection with a

guilty plea as follows:

      The standard for post-sentence withdrawal of guilty pleas
      dovetails with the arguable merit/prejudice requirements for
      relief based on a claim of ineffective assistance of counsel under
      which the defendant must show that counsel’s deficient
      stewardship resulted in a manifest injustice, for example, by
      facilitating entry of an unknowing, involuntary, or unintelligent
      plea. See, e.g., [Commonwealth v.] Allen, 558 Pa. [135,]
      144, 732 A.2d [582,] 587 [(1999)]).”                Allegations of


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      ineffectiveness in connection with the entry of a guilty plea will
      serve as a basis for relief only if the ineffectiveness caused
      appellant to enter an involuntary or unknowing plea.”…

      The standard is equivalent to the ‘manifest injustice’ standard
      applicable to all post-sentence motions to withdraw a guilty plea.

Commonwealth v. Morrison, 878 A.2d 102, 105 (Pa. Super. 2005) (some

citations omitted; brackets in original). Where a defendant enters a plea on

the advice of counsel, the voluntariness of the plea depends on whether the

advice was within the range of competence demanded of attorneys in

criminal cases. Commonwealth v. Timchak, 69 A.3d 765, 769 (Pa. Super.

2013).    In determining whether a plea was entered knowingly and

voluntarily,   this   Court   considers   the   totality   of   the   circumstances

surrounding the plea.     Commonwealth v. Flanagan, 854 A.2d 489, 513

(Pa. 2004).

      The record reflects that Appellant entered into a negotiated guilty plea.

He signed a guilty plea colloquy, indicating that he was aware of the

charges, the maximum sentence for the offense, and the circumstances

surrounding the charges. Notes of Testimony (N. T.), 8/6/14, at 2-3; see

also Written Guilty Plea Colloquy, 8/5/14, at 1-2.                He admitted to

committing the crimes and acknowledged that plea counsel had adequately

explained the charges to him.       N. T. at 2-3, 8-9; Colloquy at 5-6.         He

understood the rights he was foregoing with his plea and stated that no one

had coerced him into pleading guilty. N. T. at 9; see also Colloquy at 6;

see also Commonwealth v. Muhammad, 74 A.2d 378, 384 (Pa. Super.

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2002) (stating that an appellant cannot claim that he involuntarily entered a

guilty plea where he stated that no one threatened him to plead guilty); see

also Commonwealth v. Tareila, 895 A.2d 1266, 1267 (Pa. Super. 2006)

(stating that “[t]he entry of a guilty plea constitutes a waiver of all defects

and defenses except lack of jurisdiction, invalidity of the plea, and illegality

of the sentence.”); see also Commonwealth v. Myers, 642 A.2d 1103,

1107 (Pa. Super. 1994) (noting that an appellant’s claim he was under

pressure at the time he entered a plea will not invalidate that plea, absent

proof he was incompetent at the time the plea was entered).

      Thus, despite Appellant’s claim of coercion and trauma, he is bound by

his denials of the same at the guilty plea colloquy, as he has not introduced

evidence of incompetence at the time of the plea.       See Muhammad, 74

A.2d at 384; see also Myers, 642 A.2d at 1107.              Thus, he has not

established a manifest injustice that would require the withdrawal of his

guilty plea. See Morrison, 878 A.2d at 105. Accordingly, Appellant has not

established ineffective assistance of counsel in connection with his guilty

plea. See Timchak, 69 A.3d at 769.

      Appellant’s next three claims are waived. First, Appellant claims that

trial counsel forged Appellant’s signature on the waiver of preliminary

hearing form. Appellant’s Brief at 13-14. Next, he claims that trial counsel

was ineffective in refusing to research, investigate, or prove the validity of

“any successful claims of innocence.”       Appellant’s Brief at 14.    Finally,


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Appellant claims that newly obtained evidence was withheld from Appellant

at and during the time of defense planning. Appellant’s Brief at 15-16.

      As Appellant did not raise these claims in his PCRA petition or in a

response to the court’s Pa.R.Crim.P. 907 notice, they are waived for

purposes of appeal. Washington, 927 A.2d at 601; see also Pa.R.A.P. 302

(stating “issues not raised in the lower court are waived and cannot be

raised for the first time on appeal”).

      Additionally, Appellant claims that PCRA counsel was ineffective in his

representation. However, claims of PCRA counsel's ineffectiveness may not

be raised for the first time on appeal. Commonwealth v. Henkel, 90 A.3d

16, 20 (Pa. Super. 2014), appeal denied, 101 A.3d 785 (Pa. 2014).

      Accordingly, we discern no error in the PCRA court’s decision to

dismiss Appellant’s petition without an evidentiary hearing.      Appellant’s

claims are without merit, and he is entitled to no relief.

      Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/21/2016




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