J-S58041-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                      Appellee                 :
                                               :
               v.                              :
                                               :
    THOMAS WILLIAM CASWELL                     :
                                               :
                      Appellant                :       No. 309 MDA 2017

                 Appeal from the PCRA Order February 3, 2017
                  In the Court of Common Pleas of York County
              Criminal Division at No(s): CP-67-CR-0007203-2015


BEFORE: GANTMAN, P.J., SHOGAN, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY GANTMAN, P.J.:                       FILED SEPTEMBER 28, 2017

        Appellant, Thomas William Caswell, appeals from the order entered in

the York County Court of Common Pleas, which denied his first petition filed

pursuant to the Post Conviction Relief Act (“PCRA”).1 We affirm and grant

counsel’s petition to withdraw.

        The relevant facts and procedural history of this case are as follows.

On September 17, 2015, Appellant went to the home of his neighbor

(“Victim”) because Appellant was upset that Victim parked too close to

Appellant’s wife’s car. Appellant knocked on Victim’s door, exchanged words

with Victim, shoved Victim inside his home, and punched Victim repeatedly.

Victim suffered a broken cheekbone, chipped/broken teeth, and other
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1
    42 Pa.C.S.A. §§ 9541-9546.
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injuries.    The Commonwealth charged Appellant with aggravated assault,

two   counts    of   simple   assault,   burglary,   disorderly    conduct,   public

drunkenness, and defiant trespass.

      On February 29, 2016, Appellant entered a negotiated guilty plea to

burglary in exchange for the Commonwealth’s withdrawal of the remaining

charges and a recommended sentence of five to ten years’ imprisonment.

Appellant executed a written guilty plea colloquy confirming his plea was

voluntary.     The court also conducted an oral plea colloquy, during which

Appellant admitted he “got in a situation [with Victim] over a parking space,”

“went to [Victim’s] house, knocked on his door,” “pushed [Victim and] got

into a physical altercation inside [Victim’s] house.”             (N.T. Guilty Plea

Hearing, 2/29/16, at 4).       Appellant also stated he opened the door to

Victim’s home, had not been invited inside, and intended to have a physical

altercation with Victim when he entered Victim’s residence. (Id. at 4-5). At

the conclusion of the plea colloquy, the court accepted Appellant’s guilty plea

as knowing, intelligent, and voluntary, and imposed the recommended

sentence of five to ten years’ imprisonment.

      On March 15, 2016, plea counsel filed, on Appellant’s behalf, a post-

sentence motion to withdraw the guilty plea nunc pro tunc.             Plea counsel

also requested to withdraw as counsel because Appellant had alleged that

plea counsel coerced Appellant’s guilty plea.        The court accepted the nunc

pro tunc filing, appointed new counsel, and scheduled a hearing on the post-


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sentence motion.

       The court held a hearing on Appellant’s post-sentence motion on June

9, 2016, at which Appellant and plea counsel testified. Appellant testified,

inter alia: (1) plea counsel told Appellant that if he proceeded to trial and a

jury convicted him, Appellant could face a longer sentence of seven to

fourteen or twelve to fourteen years’ imprisonment; (2) Appellant was in a

state of paranoia when plea counsel told Appellant he could face such a

lengthy sentence; (3) Appellant figured he would just plead guilty because

five to ten years’ imprisonment was more favorable than seven or twelve to

fourteen years’ imprisonment; (4) Appellant did not have his glasses with

him when he executed the written guilty plea colloquy; (5) Appellant did not

understand what he was signing; (6) plea counsel told Appellant, “we are in

a hurry” and encouraged Appellant to complete the plea colloquy quickly; (7)

plea counsel told Appellant to tell the court he intended to steal when he

entered Victim’s premises, so the court would accept his guilty plea; (8)

Appellant is innocent of burglary because he did not rob Victim, steal from

Victim, or break Victim’s door; (9) counsel only visited Appellant twice in

prison; and (10) plea counsel coerced Appellant to plead guilty under these

circumstances. (N.T. Motion to Withdraw Guilty Plea Hearing, 6/9/16, at 6-

32).

       Plea counsel testified, inter alia: (1) he visited Appellant in prison four

times, to the best of counsel’s recollection; (2) counsel reviewed discovery


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with Appellant and discussed the options of going to trial or pleading guilty;

(3) plea counsel discussed Appellant’s prior record score and the offense

gravity scores of the crimes charged and informed Appellant about the

possible sentences he could face in light of those scores; (4) the

Commonwealth initially offered Appellant a plea deal of seven to fourteen

years’ imprisonment if Appellant pled guilty to aggravated assault; (5) plea

counsel negotiated with the prosecutor to secure a more favorable plea deal

of five to ten years’ imprisonment for a guilty plea to burglary; (6) when

plea counsel told Appellant the Commonwealth’s offer of five to ten years’

imprisonment, Appellant said: “I’ll just take it”; (7) counsel reviewed the

written plea colloquy with Appellant, and Appellant executed the colloquy;

(8) Appellant gave no indication that he did not understand what he was

doing; (9) plea counsel did not instruct Appellant to tell the court he entered

Victim’s home with the intent to steal; and (10) Appellant gave no indication

to counsel that Appellant did not want to plead guilty but he did express

dissatisfaction with the length of the sentence. (Id. at 32-48).

      At the conclusion of the hearing on Appellant’s motion to withdraw his

plea, the court stated:

         [Appellant’s] claim today [is] that he was coerced into
         entering his plea of guilty. We find that he has not
         established that by any evidence. We have reviewed again
         today the guilty plea colloquy which [Appellant] signed.
         He has indicated that all of the answers contained therein
         were written by himself.

         We have further reviewed the transcript of the verbal

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         colloquy that this [c]ourt entered into directly with
         [Appellant] and based on that verbal colloquy, this [c]ourt
         made a finding that [Appellant] had knowingly, voluntarily,
         and intelligently waived his right to trial.

         It appears that [Appellant] is not happy with the length of
         his sentence.     But we do not believe that he has
         established any basis to withdraw his guilty plea and we
         deny the motion.

(Id. at 49). Appellant did not file a direct appeal.

      On July 25, 2016, Appellant timely filed a pro se PCRA petition,

alleging plea counsel unlawfully induced his guilty plea. The court appointed

counsel (“PCRA counsel”), who filed an amended PCRA petition on November

10, 2016.     On January 17, 2017, the Commonwealth filed a motion to

dismiss, claiming Appellant was ineligible for PCRA relief because he had

already litigated the same issue before the trial court in his post-sentence

motion. The court held a PCRA hearing on February 3, 2017, at which the

parties agreed to incorporate the testimony from the June 9, 2016 hearing

on Appellant’s motion to withdraw his guilty plea.     The court denied the

Commonwealth’s motion to dismiss, based on the court’s conclusion that the

issue had not been “previously litigated,” as defined in the PCRA. The court

denied PCRA relief on the merits. Appellant timely filed a notice of appeal on

February 17, 2017. On February 24, 2017, the court ordered Appellant to

file a concise statement of errors complained of on appeal pursuant to

Pa.R.A.P. 1925(b). Appellant timely complied on March 8, 2017.

      Preliminarily, appellate counsel has filed a motion to withdraw as


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counsel and an accompanying brief pursuant to Commonwealth v. Turner,

518 Pa. 491, 544 A.2d 927 (1988) and Commonwealth v. Finley, 550

A.2d 213 (Pa.Super. 1988) (en banc). Before counsel can be permitted to

withdraw from representing a petitioner under the PCRA, Pennsylvania law

requires counsel to file a “no-merit” brief or letter pursuant to Turner and

Finley. Commonwealth v. Karanicolas, 836 A.2d 940 (Pa.Super. 2003).

          [C]ounsel must…submit a “no-merit” letter to the [PCRA]
          court, or brief on appeal to this Court, detailing the nature
          and extent of counsel’s diligent review of the case, listing
          the issues which the petitioner wants to have reviewed,
          explaining why and how those issues lack merit, and
          requesting permission to withdraw.

Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa.Super. 2007). Counsel

must also send to the petitioner a copy of the “no-merit” letter or brief and

motion to withdraw and advise petitioner of his right to proceed pro se or

with privately retained counsel.         Id.   “Substantial compliance with these

requirements will satisfy the criteria.” Karanicolas, supra at 947.

       Instantly, appellate counsel filed a motion to withdraw as counsel and

a Turner/Finley2 brief detailing the nature of counsel’s review and

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2
  Counsel incorrectly designated his brief as one per Anders v. California,
386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), which applies to
attorneys seeking to withdraw representation on direct appeal. We can
accept counsel’s filing in this case as a Turner/Finley brief.         See
Commonwealth v. Fusselman, 866 A.2d 1109, 1111 n.3 (Pa.Super.
2004), appeal denied, 584 Pa. 691, 882 A.2d 477 (2005) (stating Superior
Court can accept Anders brief in lieu of Turner/Finley brief, where PCRA
counsel seeks to withdraw on appeal).



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explaining    why    Appellant’s     issue     lacks   merit.   Counsel’s    brief   also

demonstrates he reviewed the certified record and found no meritorious

issues for appeal.        Counsel notified Appellant of counsel’s request to

withdraw, and Appellant was later correctly advised regarding his rights. 3

Thus, counsel substantially complied with the Turner/Finley requirements.

See Wrecks, supra; Karanicolas, supra.

       Appellant raises the following issue in the brief filed on appeal:

          WHETHER APPELLANT’S APPEAL CONTENDING THE DENIAL
          OF HIS PCRA IS WHOLLY FRIVOLOUS AND WITHOUT
          ARGUABLE MERIT…?

(Turner/Finley Brief at 6).4

       Our standard of review of the denial of a PCRA petition is limited to

examining whether the record evidence supports the court’s determination

and whether the court’s decision is free of legal error. Commonwealth v.

Ford, 947 A.2d 1251 (Pa.Super. 2008), appeal denied, 598 Pa. 779, 959

A.2d 319 (2008). This Court grants great deference to the findings of the

PCRA court if       the    record contains any support for           those     findings.
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3
  Counsel initially informed Appellant that he had the right to retain private
counsel or proceed pro se only if this Court granted counsel’s petition to
withdraw. In light of counsel’s advice, this Court issued a per curiam order
on June 22, 2017, notifying Appellant that he could respond to counsel’s
“no-merit” brief, either pro se or via privately-retained counsel, within 30
days. Appellant subsequently submitted a pro se response. Thus, any
defect in counsel’s advice has been cured.
4
  Appellant does not present any specific questions for review in his pro se
response but merely reiterates his claim that counsel coerced his guilty plea.



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Commonwealth v. Boyd, 923 A.2d 513 (Pa.Super. 2007), appeal denied,

593 Pa. 754, 932 A.2d 74 (2007). If the record supports a post-conviction

court’s credibility determination, it is binding on the appellate court.

Commonwealth v. Dennis, 609 Pa. 442, 17 A.3d 297 (2011).

     Appellant argues he did not want to plead guilty unless the

Commonwealth offered a sentence of only one to two years’ imprisonment.

Appellant   asserts   plea   counsel    coerced   Appellant   to   accept   the

Commonwealth’s offer of five to ten years’ imprisonment by telling Appellant

he could face a much greater sentence if a jury convicted him.       Appellant

maintains he did not want to accept the Commonwealth’s offer because it

was more than one to two years’ imprisonment, and in light of the fact that

Victim spat on Appellant’s face when Appellant knocked on Victim’s door.

Appellant contends plea counsel “rushed” Appellant into the courtroom to

accept the plea offer and did not give him adequate time to think it over.

Appellant claims he was unable to read the written plea colloquy because he

did not have his glasses. Appellant insists plea counsel just told him where

to initial and sign the written plea colloquy.    Appellant avers counsel told

Appellant to tell the court that he intended to commit a theft when he

entered Victim’s premises. Appellant concludes plea counsel was ineffective,

and this Court must vacate and remand for appropriate further proceedings.

(Appellant also baldly asserts PCRA counsel was also ineffective for filing a

Turner/Finley brief on appeal. Appellant failed to develop this claim in any


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meaningful way, so we decline to consider it.) We disagree.

      To be eligible for relief under the PCRA, a petitioner must plead and

prove by a preponderance of the evidence: “[t]hat the allegation of error has

not been previously litigated or waived.” 42 Pa.C.S.A. § 9543(a)(3). The

PCRA defines “previous litigation” as follows:

         § 9544. Previous litigation and waiver

            (a) Previous litigation.—For purposes of               this
         subchapter, an issue has been previously litigated if:

                                  *    *    *

            (2) the highest appellate court in which the petitioner
         could have had review as a matter of right has ruled on
         the merits of the issue; or

            (3) it has been raised and decided in a proceeding
         collaterally attacking the conviction or sentence.

42 Pa.C.S.A. § 9544(a)(2-3) .

      Instantly, the Commonwealth filed a motion to dismiss Appellant’s

PCRA petition, arguing he was ineligible for relief because he had already

litigated his ineffectiveness claim before the trial court.   Although the trial

court heard and considered Appellant’s coercion claim in the context of his

post-sentence motion to withdraw his guilty plea, no appellate court has

ruled on Appellant’s ineffectiveness of counsel claim, and Appellant did not

previously present his issue in the context of a collateral proceeding.

Consequently, the court properly denied the Commonwealth’s motion to

dismiss on this ground, and Appellant is eligible for relief under the PCRA.


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See id.

      Turning to the merits of Appellant’s claim, the law presumes counsel

has rendered effective assistance. Commonwealth v. Gonzalez, 858 A.2d

1219, 1222 (Pa.Super. 2004), appeal denied, 582 Pa. 695, 871 A.2d 189

(2005).   To prevail on a claim of ineffective assistance of counsel, a

petitioner must show, by a preponderance of the evidence, ineffective

assistance of counsel which, in the circumstances of the particular case, so

undermined the truth-determining process that no reliable adjudication of

guilt or innocence could have taken place. Commonwealth v. Turetsky,

925 A.2d 876 (Pa.Super. 2007), appeal denied, 596 Pa. 707, 940 A.2d 365

(2007).   The petitioner must demonstrate: (1) the underlying claim has

arguable merit; (2) counsel lacked a reasonable strategic basis for his action

or inaction; and (3) but for the errors and omissions of counsel, there is a

reasonable probability that the outcome of the proceedings would have been

different. Id. at 880. “The petitioner bears the burden of proving all three

prongs of the test.” Id.

      “Allegations 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.” Commonwealth v.

Moser, 921 A.2d 526, 531 (Pa.Super. 2007) (internal citation omitted).

“Where the defendant enters his plea on the advice of counsel, the

voluntariness of the plea depends on whether counsel’s advice was within


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the range of competence demanded of attorneys in criminal cases.”                      Id.

Pennsylvania law does not require the defendant to “be pleased with the

outcome of his decision to enter a plea of guilty[; a]ll that is required is that

his decision to plead guilty be knowingly, voluntarily and intelligently made.”

Id. at 528-29.       A guilty plea will be deemed valid if the totality of the

circumstances surrounding the plea shows that the defendant had a full

understanding of the nature and consequences of his plea such that he

knowingly     and    intelligently    entered        the   plea   of   his   own    accord.

Commonwealth           v.    Fluharty,         632    A.2d    312      (Pa.Super.   1993).

Pennsylvania law presumes the defendant is aware of what he is doing when

he enters a guilty plea, and the defendant bears the burden to prove

otherwise.     Commonwealth v. Pollard, 832 A.2d 517, 523 (Pa.Super.

2003).     Mere disappointment in the sentence does not constitute the

necessary “manifest injustice” to render the defendant’s guilty plea

involuntary. Id. at 522.

       Instantly, the PCRA court explained:5

          Here, Appellant argues that his [plea] counsel was
          ineffective for forcing him to enter a guilty plea. This
          [c]ourt finds Appellant’s assertion to be without merit.
          Appellant signed an extensive written colloquy form prior
          to entering his guilty plea. This [c]ourt then engaged
          Appellant in a verbal colloquy on the record. At no time
          did Appellant ever assert that he did not understand the
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5
 The PCRA court also presided over Appellant’s guilty plea and motion to
withdraw guilty plea proceedings.



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         written colloquy, that he could not read the colloquy, that
         he was being threatened or coerced by his counsel or that
         he did not understand that he was not required to enter a
         plea and had the right to go to trial. In fact, Appellant
         answered all of the [c]ourt’s questions indicating that he
         understood what he was doing and that it was his
         voluntary desire to enter the plea. Appellant has failed to
         show that the underlying issue has arguable merit.

(Trial Court Opinion, filed April 3, 2017, at 5) (internal citation omitted).

The record supports the court’s analysis. See Ford, supra; Boyd, supra.

      The record shows Appellant executed a written guilty plea colloquy

affirming that his decision to plead guilty was knowing, intelligent, and

voluntary.   As well, the court performed a thorough oral plea colloquy,

during which Appellant expressed no reservations about his decision to plead

guilty. Appellant explained the factual basis for his plea to burglary, stating

he “got in a situation [with Victim] over a parking space,” “went to [Victim’s]

house, knocked on his door,” “pushed [Victim and] got into a physical

altercation inside [Victim’s] house.”        (N.T. Guilty Plea Hearing at 4).

Appellant also said he opened the door to Victim’s home, had not been

invited inside, and intended to have a physical altercation with Victim when

he entered Victim’s premises.       (Id. at 4-5).     Contrary to Appellant’s

assertions, Appellant did not say on the record that he entered Victim’s

home to commit a theft; and the intent to commit a theft is not required for

a burglary conviction in any event.     (See id.)    See also 18 Pa.C.S.A. §

3502(a)(1) (stating person commits burglary if, with intent to commit crime

therein, person enters building or occupied structure that is adapted for

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overnight accommodations in which at time of offense any person is present

and person commits, attempts or threatens to commit bodily injury crime).

In exchange for Appellant’s guilty plea to burglary, the Commonwealth

withdrew numerous charges and recommended a sentence of five to ten

years’ imprisonment, which the court imposed. Nothing in Appellant’s guilty

plea   hearing   proceeding   suggests   Appellant’s   plea   was    unknowing,

unintelligent, or involuntary. See Pollard, supra; Moser, supra.

       Additionally, the court heard from Appellant and plea counsel at the

hearing on Appellant’s motion to withdraw his guilty plea.          Plea counsel

testified, inter alia, he met with Appellant on multiple occasions to discuss

the strength of Appellant’s case and the possibility of entering a guilty plea;

reviewed Appellant’s prior record score and the offense gravity scores of the

crimes charged and informed Appellant about the possible sentences he

could face in light of those scores; secured a more favorable plea deal than

the Commonwealth initially offered; and, after Appellant agreed to accept

the Commonwealth’s offer of a recommendation of five to ten years’

imprisonment in exchange for Appellant’s guilty plea, counsel reviewed the

written plea colloquy with Appellant before Appellant signed it. Plea counsel

also said Appellant gave no indication that he did not understand what he

was doing. The court’s decision to deny relief indicates the court credited

plea counsel’s testimony.      See Dennis, supra.         The totality of the

circumstances demonstrates Appellant had a full understanding of the nature


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and consequences of his guilty plea.     See Fluharty, supra.       Therefore,

Appellant’s ineffectiveness claim lacks arguable merit.       See Turetsky,

supra. Following our independent examination of the record, we conclude

the appeal is frivolous and affirm; we grant counsel’s petition to withdraw.

      Order affirmed; counsel’s petition to withdraw is granted.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/28/2017




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