J-S50026-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

JAMES DUNYAN

                            Appellant                No. 1737 EDA 2014


                   Appeal from the PCRA Order May 12, 2014
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0010212-2008


BEFORE: PANELLA, J., MUNDY, J., and JENKINS, J.

MEMORANDUM BY MUNDY, J.:                        FILED NOVEMBER 10, 2015

       Appellant, James Dunyan, appeals from the May 12, 2014 order

dismissing, without a hearing, his first petition filed pursuant to the Post

Conviction Relief Act, (PCRA), 42 Pa.C.S.A. §§ 9541-9546.        Upon careful

review, we affirm.

       We summarize the procedural history of this case as follows.         On

March 19, 2008, Appellant was charged by criminal complaint with

aggravated assault, burglary, criminal trespass, possession of an instrument

of crime (PIC), terroristic threats, simple assault, and recklessly endangering

another person.1       The charges stemmed from Appellant’s March 2, 2008

____________________________________________
1
  18 Pa.C.S.A. §§ 2702(a), 3502(a), 3503(a)(1)(i), 907(a), 2706 (a)(1),
2701(a), and 2705, respectively.
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entry into the home of Gary Summerfield (Victim), where he accosted and

injured Victim with two tire augers.              On November 3, 2010, Appellant

entered a negotiated guilty plea to burglary, PIC, and simple assault in

exchange for which the Commonwealth recommended a sentence of five to

ten years’ incarceration and nolle prossed the remaining counts.          The trial

court accepted the guilty plea and that same day sentenced Appellant in

accordance with the plea agreement.2 No post-sentence motion was filed.

Appellant filed a pro se notice of appeal on December 1, 2010.              Newly

appointed appellate counsel filed a motion to withdraw together with an

Anders3 brief before this Court.               This Court affirmed the judgment of

sentence on July 9, 2012, and permitted counsel to withdraw.                  See

Commonwealth v. Dunyan, 55 A.3d 125 (Pa. Super. 2012) (unpublished

memorandum) (finding, inter alia, Appellant’s challenge to the voluntariness

of his plea was frivolous, inasmuch as Appellant never preserved the issue

by requesting to withdraw his plea before the trial court).4


____________________________________________
2
  Specifically, the trial court sentenced Appellant to a term of incarceration of
five to ten years on the burglary count and imposed no additional penalty for
the PIC, and simple assault counts.
3
    Anders v. California, 386 U.S. 738 (1967).
4
  During the pendency of his direct appeal, Appellant filed a pro se “Motion
to Withdraw Guilty Plea Nunc Pro Tunc,” which was docketed and
transmitted by the Clerk of Courts. See Pa.R.Crim.P. 576(A)(4) (providing
that when a pro se filing by a represented defendant is received, the Clerk of
Courts shall “accept it for filing, time stamp it with the date of receipt and
(Footnote Continued Next Page)

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      On July 23, 2012, Appellant filed a pro se PCRA petition.     The PCRA

court appointed counsel to represent Appellant, who filed an amended PCRA

petition on May 3, 2013. On April 11, 2014, pursuant to Pennsylvania Rule

of Criminal Procedure 907, the PCRA court filed its notice of intent to dismiss

Appellant’s amended PCRA petition without a hearing.5         The PCRA court

dismissed Appellant’s amended PCRA petition on May 12, 2014. On May 23,

2014, Appellant filed a pro se notice of appeal. A counseled notice of appeal

was filed on June 10, 2014.6

      On appeal, Appellant raises the following issue for our review.

             Did the PCRA [c]ourt err when it dismissed
             [Appellant’s] Amended PCRA Petition without
             granting a [h]earing and where [Appellant] properly
             pled and would have been able to prove that he was
             entitled to relief?

Appellant’s Brief at 3.

      Appellate review of a PCRA court’s dismissal of a PCRA petition is

circumscribed by the following principles.
                       _______________________
(Footnote Continued)
make a docket entry reflecting the date of receipt, and place the document
in the criminal case file,” and forward the same to counsel).
5
 On April 18, 2014, Appellant filed a pro se response to the PCRA court’s
notice of intent to dismiss.
6
  During the pendency of the PCRA proceedings and the instant appeal,
Appellant filed several motions to remove PCRA counsel before the PCRA
court and this Court. On January 6, 2015, Appellant filed a motion to
withdraw his earlier request to remove counsel, and PCRA counsel has
continued to represent Appellant in this appeal. See Superior Court Order,
1/23/15, at 1 (granting Appellant’s motion to withdraw his request to
remove counsel and reinstating the briefing schedule in this appeal).


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           Our standard of review of the denial of a PCRA
           petition is limited to examining whether the court’s
           rulings are supported by the evidence of record and
           free of legal error. This Court treats the findings of
           the PCRA court with deference if the record supports
           those findings.     It is an appellant’s burden to
           persuade this Court that the PCRA court erred and
           that relief is due.

Commonwealth v. Feliciano, 69 A.3d 1270, 1274-1275 (Pa. Super. 2013)

(citation omitted). [T]his Court applies a de novo standard of review to the

PCRA court’s legal conclusions. Commonwealth v. Medina, 92 A.3d 1210,

1215 (Pa. Super. 2014) (en banc) (internal quotation marks and citations

omitted), appeal granted, 105 A.3d 658 (Pa. 2014). Additionally, in order to

be eligible for PCRA relief, a petitioner must plead and prove by a

preponderance of the evidence that his conviction or sentence arose from

one or more of the errors listed at 42 Pa.C.S.A. § 9543(a)(2). These issues

must be neither previously litigated nor waived. Id. § 9543(a)(3).

     In this case, the PCRA court dismissed Appellant’s PCRA petition

without conducting a hearing.

                 [T]he right to an evidentiary hearing on a post-
           conviction petition is not absolute. It is within the
           PCRA court’s discretion to decline to hold a hearing if
           the petitioner’s claim is patently frivolous and has no
           support either in the record or other evidence. It is
           the responsibility of the reviewing court on appeal to
           examine each issue raised in the PCRA petition in
           light of the record certified before it in order to
           determine if the PCRA court erred in its
           determination that there were no genuine issues of
           material fact in controversy and in denying relief
           without conducting an evidentiary hearing.


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Commonwealth v. Wah, 42 A.3d 335, 338 (Pa. Super. 2012), quoting

Commonwealth v. Turetsky, 925 A.2d 876, 882 (Pa. Super. 2007)

(internal citations omitted), appeal denied, 940 A.2d 365 (Pa. 2007); see

also Pa.R.Crim.P. 907.   “We   stress that an evidentiary hearing is not meant

to function as a fishing expedition for any possible evidence that may

support some speculative claim of ineffectiveness.”      Commonwealth v.

Roney, 79 A.3d 595, 604-605 (Pa. 2013) (internal quotation marks and

citation omitted), cert. denied, Roney v. Pennsylvania., 135 S. Ct. 56

(2014). We review a PCRA court’s decision to dismiss without a hearing for

abuse of discretion. Id. at 604.

     When reviewing a claim of ineffective assistance of counsel, we apply

the following test, first articulated by our Supreme Court in Commonwealth

v. Pierce, 527 A.2d 973 (Pa. 1987).

                 When considering such a claim, courts
           presume that counsel was effective, and place upon
           the appellant the burden of proving otherwise.
           Counsel cannot be found ineffective for failure to
           assert a baseless claim.

                  To succeed on a claim that counsel was
           ineffective, Appellant must demonstrate that: (1) the
           claim is of arguable merit; (2) counsel had no
           reasonable strategic basis for his or her action or
           inaction; and (3) counsel’s ineffectiveness prejudiced
           him.

                                       …

                [T]o demonstrate prejudice, appellant must
           show there is a reasonable probability that, but for


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            counsel’s error, the outcome of the proceeding would
            have been different.

Commonwealth v. Michaud, 70 A.3d 862, 867 (Pa. Super. 2013) (internal

quotation marks and citations omitted). “Failure to establish any prong of

the test will defeat an ineffectiveness claim.”            Commonwealth v.

Birdsong, 24 A.3d 319, 330 (Pa. 2011).

      Appellant’s central claim, is that trial counsel was ineffective for failing

to file a motion to withdraw Appellant’s guilty plea when requested by

Appellant to do so after sentencing. Appellant’s Brief at 9. Appellant asserts

it was an abuse of discretion for the PCRA court to deny him an evidentiary

hearing on the issue, when there exist questions of fact regarding

Appellant’s request and trial counsel’s response. Id.

            It is [Appellant’s] claim that he did not enter into the
            plea in a knowing, intelligent and voluntary fashion.
            However, that is not the issue before this Court. The
            precise issue is whether or not trial counsel was
            ineffective for failing to move to withdraw the plea
            after [Appellant] instructed him to do so. Thus,
            counsel is requesting an evidentiary hearing on
            whether or not counsel ignored [Appellant’s] wishes
            to withdraw the plea.

Id.

      The PCRA court denied Appellant’s PCRA petition without a hearing

because, “Appellant failed to demonstrate that his guilty plea was entered

involuntarily, and thus prejudice was not established.” PCRA Court Opinion,

7/17/14, at 4. Appellant counters that the failure of a trial counsel to file a

requested motion to withdraw a guilty plea is per se ineffectiveness,

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excusing the need to separately establish prejudice. Appellant’s Brief at 8-9.

“[P]rejudice does not have to be established as moving to withdraw a plea is

a predicate to taking an appeal and, we all know that pursuant to Pierce,

[Appellant] does not have to establish prejudice once he has requested that

counsel take an appeal.” Id. at 8. We disagree.

      In Commonwealth v. Reaves, 923 A.2d 1119 (Pa. 2007), our

Supreme Court addressed a similar argument.          In Reaves, the appellant

alleged his violation-of-parole (VOP) counsel was ineffective for failing to file

a requested motion for reconsideration of sentence, which “counsel did not

do [], knowing that such failure would result in the waiver of appellate

claims that needed to be preserved by such a motion.” Id. at 1127. Reaves

further argued as follows.

            [T]he per se prejudice approach is appropriate in
            instances affecting the right to a meaningful direct
            appeal. When an error is not preserved, as his
            current claim was not, appellee contends, the result
            is tantamount to a refusal to file a direct appeal. …
            [T]he presumed prejudice approach should apply
            when an attorney refuses to file a requested motion
            for reconsideration of a VOP sentence and a claim of
            merit is thereby defaulted.

Id. In rejecting Reaves’ argument, our Supreme Court explained as follows.

            This Court has extended [the presumption] of
            prejudice in Pennsylvania to instances where
            counsel’s lapse ensured the total failure of an appeal
            requested by the client. … [T]his Court stressed the
            fundamental difference between a lapse by counsel
            which leads to no review at all and one which merely
            narrows the review made available: The difference in
            degree between failures that completely foreclose

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              appellate review, and those which may result in
              narrowing its ambit, justifies application of the
              presumption [of prejudice] in the more extreme
              instance.

Id. at 1128 (citations omitted).          The Reaves Court concluded that VOP

counsel’s alleged failure to file the requested motion did not warrant

application of a per se prejudice presumption.

              [VOP counsel’s] failures, however, did not operate to
              entirely foreclose appellate review of the decision to
              revoke probation and to recommit appellee to a term
              of imprisonment. As a matter of law, the failure to
              file for sentencing reconsideration…does not waive
              any and all appellate issues; it waives only those
              claims subject to issue preservation requirements
              which were not otherwise already properly
              preserved.

Id. at 1128-1129 (noting Reaves in fact filed a direct appeal).7

       The same reasoning applies instantly.       Counsel’s purported failure to

file a motion to withdraw Appellant’s guilty plea, did not preclude Appellant

from filing a direct appeal, which he in fact did.       Rather, by not filing a

motion to withdraw the guilty plea, the issues Appellant could raise in that

appeal were narrowed.         Accordingly, Appellant was required to plead and

prove prejudice in order to prevail in his ineffective assistance of counsel

claim. See Michaud, supra.

____________________________________________
7
  In this vein, Our Supreme Court has remarked that even where an action
by counsel may be deemed “a per se failing as to performance,” that fact
“does not make out a case of prejudice, or overall entitlement to Strickland
relief.” Commonwealth v. Johnson, 966 A.2d 523, 536 (Pa. 2009).



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        “[A] trial court is only required to permit a withdrawal of a guilty plea

after   sentencing   where    a   defendant/appellant   can   demonstrate      that

prejudice on the order of manifest injustice has occurred. Manifest injustice

occurs where a plea is entered involuntarily or without knowledge of the

charge.” Commonwealth v. Jones, 566 A.2d 893, 895 (Pa. Super. 1989)

(citation omitted), appeal denied, 578 A.2d 926 (Pa. 1990).             “A criminal

defendant has the right to effective counsel during a plea process as well as

during trial. A defendant is permitted to withdraw his guilty plea under the

PCRA if ineffective assistance of counsel caused the defendant to enter an

involuntary plea of guilty.”      Commonwealth v. Rathfon, 899 A.2d 365,

369 (Pa. Super. 2006) (internal quotation marks and citations omitted).

              [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.

Wah, supra at 338-339 (internal quotation marks and citations omitted).

        In his amended PCRA petition, Appellant only makes a bald assertion

that his plea was involuntary.        Amended PCRA Petition, 5/3/13, at 3.

Appellant does not aver any facts to support his assertion, nor aver any

basis to establish an entitlement to withdraw his plea had such a motion

been filed.    See Jones, supra.      Rather, Appellant makes the alternative

claim that “even if Appellant were held by [this] Court to have to establish

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prejudice, [Appellant] could easily do so by establishing that he was

prejudiced by the fact that the Superior Court would not hear his

[involuntary plea issue on direct] appeal….”       Appellant’s Brief at 8-9.

Appellant misperceives his burden to establish prejudice from counsel’s

alleged ineffectiveness. To warrant a hearing on his claim, it was incumbent

upon Appellant to allege some facts demonstrating his plea was involuntary,

unintelligent, or unknowing. See Wah, supra. Appellant has not done so.

Additionally, as the PCRA court noted, the record of the written and oral plea

colloquies disclose no irregularity or basis to question the validity of

Appellant’s guilty plea.    PCRA Court Opinion, 7/17/14, at 4-5.         “The

combination of colloquies supported the court’s finding that the plea was

properly tendered. Thus, Appellant’s claim that his guilty plea was entered

involuntarily, merely contradicting his previously adopted guilty plea

colloquy statements, was found insufficient to establish a claim warranting

relief.” Id. at 5.

      Based on our review of the record, we discern no error or abuse of

discretion by the PCRA court in dismissing Appellant’s amended PCRA

petition without a hearing.   We agree with the PCRA court that Appellant

failed to aver any facts to support his claim that his guilty plea was

involuntary.   Accordingly, Appellant failed to demonstrate any prejudice in

support of his ineffective assistance of counsel claim.   See Wah, supra.

There being no disputed issue of material fact presented by Appellant


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relative to prejudice, we conclude the PCRA court did not abuse its discretion

by declining to conduct a hearing on Appellant’s petition.      See, Roney,

supra. For these reasons, we affirm the PCRA court’s May 12, 2014 order.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/10/2015




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