J-S60028-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

PERRY LAMONT WALLACE

                            Appellant                No. 68 EDA 2015


               Appeal from the PCRA Order September 20, 2013
             In the Court of Common Pleas of Montgomery County
              Criminal Division at No(s): CP-46-CR-0008880-2004


BEFORE: BENDER, P.J.E., LAZARUS, J., and OTT, J.

MEMORANDUM BY LAZARUS, J.:                     FILED NOVEMBER 23, 2015

        Perry Lamont Wallace appeals from the order, entered in the Court of

Common Pleas of Montgomery County, which dismissed his petition filed

pursuant to the Post Conviction Relief Act (PCRA).1    After our review, we

affirm.

        On May 11, 2005, after a non-jury trial, Wallace was convicted of

rape,2 statutory sexual assault,3 indecent assault,4 terroristic threats,5

____________________________________________


1
    42 Pa.C.S. §§ 9541-9546.
2
    18 Pa.C.S. § 3121.
3
    18 Pa.C.S. § 3122.1.
4
    18 Pa.C.S. § 3126.
5
    18 Pa.C.S. § 2706.
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possession of an instrument of crime,6 and corruption of minors.7 Wallace

was sentenced to serve three to six years’ imprisonment followed by ten

years of probation.       On September 27, 2010, Wallace was released from

prison.    The next day, Wallace was arrested for violating his probation

because his urine tested positive and he admitted to using cocaine.      On

September 9, 2011, Wallace was sentenced to four to eight years’

imprisonment followed by ten years of probation based upon his violation of

probation.

        Wallace filed a timely direct appeal, which resulted in this Court

affirming his judgment of sentence on May 9, 2012. See Commonwealth

v. Wallace, 50 A.3d 238 (Pa. Super. 2012) (unpublished memorandum).

Thereafter, on August 17, 2012, Wallace filed a timely pro se petition

pursuant to the PCRA. Wallace indicated that he wished to proceed pro se

even though he was entitled to court-appointed counsel. See Pa.R.Crim.P.

904(C). In accordance with Commonwealth v. Grazier, 713 A.2d 81 (Pa.

1998), the PCRA court held a hearing and determined that Wallace’s waiver

of counsel was knowing, intelligent and voluntary. The PCRA court filed a

notice of intent to dismiss the PCRA petition on August 27, 2013, and issued



____________________________________________


6
    18 Pa.C.S. § 907.
7
    18 Pa.C.S. § 6301.




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a final order dismissing the petition on September 20, 2013. Wallace did not

appeal.

       On October 31, 2013, Wallace filed a second pro se PCRA petition.

The PCRA court issued a notice of intent to dismiss, to which Wallace

responded, asserting that he never received notice of dismissal of his first

PCRA petition. The PCRA court dismissed Wallace’s second PCRA petition on

January 14, 2014. After a timely appeal, this Court remanded for the PCRA

court to conduct further proceedings since Wallace did not receive the final

order of dismissal of his first PCRA petition until well after the deadline to file

a notice of appeal.    See Commonwealth v. Wallace, 108 A.3d 113 (Pa.

Super. 2014) (unpublished memorandum).

      The PCRA court issued an order directing Wallace to file his notice of

appeal from the dismissal of the first PCRA petition by January 11, 2015.

Acting pro se, Wallace timely filed his notice of appeal and court-ordered

concise statement of errors complained of on appeal pursuant to Pa.R.A.P.

1925(b).   Wallace thereafter invoked his right to representation, and the

PCRA court appointed counsel.

      On appeal, Wallace raises the following issues:

      1. Is a stipulation to a violation of probation knowing, intelligent
         and voluntary where there is no explanation of the maximum
         penalty to the defendant?




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       2. Should counsel be found to be ineffective where he fails to
          explain the maximum penalty to a defendant at a Gagnon
          II8 hearing?

Brief for Appellant, at 2.

       Our standard and scope of review regarding the denial of a PCRA

petition is well-settled.      We review the PCRA court’s findings of fact to

determine whether they are supported by the record, and review its

conclusions of law to determine whether they are free from legal error.

Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014). The scope of our

review is limited to the findings of the PCRA court and the evidence of

record, viewed in the light most favorable to the prevailing party at the trial

level. Id.

       A court may dismiss a PCRA petition without a hearing, and after

proper notice is given to the parties, when:

       [T]he judge is satisfied from this review [of the petition] that
       there are no genuine issues concerning any material fact
       and that the defendant is not entitled to post-conviction
       collateral relief, and no purpose would be served by any
       further proceedings.




____________________________________________


8
  See Gagnon v. Scarpelli, 411 U.S. 778 (1973) (when parolee or
probationer is detained pending revocation hearing, due process requires a
determination that probable cause exists to believe that violation has been
committed (Gagnon I hearing); where finding of probable cause has been
made, second, more comprehensive hearing is required before final
revocation decision can be made (Gagnon II hearing)).




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Pa.R.Crim.P. 907(1) (emphasis added). In particular, with respect to claims

of ineffective assistance of counsel, we begin with the presumption that

counsel is effective.      Spotz, 84 A.3d at 315.           To prevail on an

ineffectiveness   claim,   a   petitioner   must   plead   and   prove,   by   a

preponderance of the evidence, three elements: (1) the underlying legal

claim has arguable merit; (2) counsel had no reasonable basis for his or her

action or inaction; and (3) the petitioner suffered prejudice because of

counsel’s action or inaction. Id. at 311. An ineffectiveness claim fails if the

petitioner’s evidence does not satisfy any one of the three prongs.

Commonwealth v. Busanet, 54 A.3d 35, 45 (Pa. 2012).

      Wallace asserts that his stipulation to a violation of probation was not

knowing, intelligent, and voluntary because he was not informed of the

maximum sentence he could receive and that counsel was ineffective for

failing to so inform him. We note that

      [w]e have never equated a probation revocation hearing with a
      criminal trial. We have stated many times that the revocation
      hearing is not a highly formal procedure in which traditional rules
      of evidence and strict rules of procedure must be complied with.

      However, recognizing that [a defendant] in agreeing not to
      contest the alleged violations [gives] up important rights, . . .
      some on the record showing must be made to determine
      whether a waiver is voluntary.

Commonwealth v. Bell, 410 A.2d 843, 844 (Pa. Super. 1979).

      The record indicates that during Wallace’s combined Gagnon I and II

hearing, a colloquy was conducted and Wallace was aware that he was

giving up certain rights.       He acknowledged that the Commonwealth

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ordinarily would have to show probable cause in a Gagnon I hearing and

would have the burden to prove by a preponderance of the evidence that he

violated the terms of his supervision in a Gagnon II hearing.         Wallace

indicated that no one had coerced him into stipulating that he violated his

probation or promised him anything in exchange.

      However, Wallace argues that counsel “erroneously advised [him] that

the worst case [scenario was that he would] be paroled in 5 months because

the prosecution [was] requesting 1 to 2 years . . . [w]hen in fact a violation

of probation would expose him to a sentence of 7 to 14 years.” Amended

PCRA Petition, at 3. Indeed, Wallace’s colloquy includes nothing regarding

the maximum penalty he faced. In the analogous guilty plea context, trial

courts are required to ensure that defendants are aware of the permissible

range of sentences. Commonwealth v. Bedell, 954 A.2d 1209, 1212 (Pa.

Super. 2008).     Thus, we find that Wallace’s ineffectiveness claim has

arguable merit.

      Next, we note that

      [w]ith regard to the reasonable basis prong, we will conclude
      that counsel’s chosen strategy lacked a reasonable basis only if
      the petitioner proves that the alternative strategy not selected
      offered a potential for success substantially greater than the
      course actually pursued. To establish the prejudice prong, the
      petitioner must demonstrate that there is a reasonable
      probability that the outcome of the proceedings would have been
      different but for counsel’s ineffectiveness.

Busanet, 54 A.3d at 46.       Though the record has not been developed

regarding counsel’s advice and rationale for the advice, Wallace is unable to


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establish that he was prejudiced in agreeing to stipulate to violating his

probation.   The Commonwealth had evidence that Wallace confessed to

using cocaine and had urinalysis results to prove that he had done so. Thus,

no reasonable probability existed that the Commonwealth would not have

been able to show that Wallace had violated his probation.        Busanet,

supra. Therefore, Wallace is entitled to no relief.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/23/2015




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