J-S04007-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

SEAN M. WAYNE,

                            Appellant                 No. 204 EDA 2016


                 Appeal from the PCRA Order December 18, 2015
              In the Court of Common Pleas of Philadelphia County
    Criminal Division at No(s): CP-51-CR-0007157-2012, CP-51-CR-0007158-
                                      2012


BEFORE: SHOGAN and OTT, JJ., and STEVENS, P.J.E.*

MEMORANDUM BY SHOGAN, J.:                        FILED FEBRUARY 10, 2017

        Appellant, Sean M. Wayne, appeals from the order entered on

December 18, 2015, denying his petition filed pursuant to the Post

Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546. We affirm.

        The relevant facts were set forth by the PCRA court as follows:

              Between 2000 and 2003, [Appellant] sexually assaulted
        the victims, two young girls, one of whom was between six and
        eight years old, and the other who was between six and seven
        years old. (N.T. 12/04/12 at 9-14). During the relevant time
        period, [Appellant] was occasionally asked by his girlfriend to
        babysit [the victims] (Id.). Although entrusted with their care,
        [Appellant] instead proceeded to sexually assault the young
        victims in a number of ways, including penetrating their vaginas
        with his fingers, punching their genitalia, exposing himself to
        them, and forcing them to touch his penis. (Id.). After another
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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     incident where [Appellant] again exposed himself in July, 2011,
     the victims reported what had happened to the police. (Id. at
     14). An arrest warrant was taken out for [Appellant’s] arrest on
     November 1, 2011. (Id.). [Appellant] was arrested on March 2,
     2012. (Id.).

PCRA Court Opinion, 5/16/16, at 2.

            On December 4, 201[2], [Appellant] entered a negotiated
     guilty plea before this Court to Indecent Assault of a Person Less
     Than 13 Years of Age1 and Corrupting the Morals of a Minor.2 On
     April 25, 2013, pursuant to the terms of the [agreement, the
     trial court] imposed an aggregate sentence of nine (9) to
     twenty-three (23) months [of] incarceration, with credit for time
     served and immediate parole, followed by three (3) years of
     reporting probation.3
           1
               18 Pa. C.S. § 6301 (M1).
           2
               18 Pa. C.S. § 3126 (M1).
           3
              Shortly thereafter, [Appellant] violated his
           probation and, on July 12, 2013, this Court revoked
           [Appellant’s] parole and entered back time.

            On August 15, 2013, [Appellant] filed a timely pro se Post
     Conviction Relief Act (PCRA) petition. On November 7, 2014,
     [Appellant’s] attorney, Mr. Peter Levin, filed an amended PCRA
     petition on [Appellant’s] behalf. On December 21, 2015, this
     Court denied the petition on the basis that the issues raised
     therein lacked merit. On January 7, 2016, [Appellant] filed his
     Notice of Appeal regarding the denial of his petition.

PCRA Court Opinion, 5/16/16, at 1-2.

     On    appeal,    Appellant   presents   two   issues   for   this   Court’s

consideration:

     I.    Whether the court erred in denying the Appellant’s PCRA
           petition without an evidentiary hearing on the issues raised
           in the amended PCRA petition regarding trial counsel’s
           ineffectiveness.


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      II.   Whether the court erred in not granting relief on the PCRA
            petition alleging counsel was ineffective.

Appellant’s Brief at 9. Because Appellant’s claims of error are interrelated,

we address them concurrently.

      When reviewing the propriety of an order denying PCRA relief, this

Court is limited to determining whether the evidence of record supports the

conclusions of the PCRA court and whether the ruling is free of legal error.

Commonwealth v. Robinson, 139 A.3d 178, 185 (Pa. 2016). The PCRA

court’s findings will not be disturbed unless there is no support for them in

the certified record. Commonwealth v. Lippert, 85 A.3d 1095, 1100 (Pa.

Super. 2014).

      “There is no absolute right to an evidentiary hearing on a PCRA

petition, and if the PCRA court can determine from the record that no

genuine issues of material fact exist, then a hearing is not necessary.”

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

Commonwealth v. Barbosa, 819 A.2d 81 (Pa. Super. 2003)). “[S]uch a

decision is within the discretion of the PCRA court and will not be overturned

absent an abuse of discretion.” Commonwealth v. Mason, 130 A.3d 601,

617 (Pa. 2015).

      To plead and prove ineffective assistance of counsel a petitioner must

establish: (1) that the underlying issue has arguable merit; (2) counsel’s

actions lacked an objective reasonable basis; and (3) actual prejudice

resulted from counsel’s act or failure to act. Commonwealth v. Stewart,

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84 A.3d 701, 706 (Pa. Super. 2013) (en banc). A claim of ineffectiveness

will be denied if the petitioner’s evidence fails to meet any one of these

prongs. Commonwealth v. Martin, 5 A.3d 177, 183 (Pa. 2010). Counsel

is presumed to have rendered effective assistance.      Commonwealth v.

Montalvo, 114 A.3d 401, 410 (Pa. 2015).        We have explained that trial

counsel cannot be deemed ineffective for failing to pursue a meritless claim.

Commonwealth v. Loner, 836 A.2d 125, 132 (Pa. Super. 2003) (en banc).

“We need not analyze the prongs of an ineffectiveness claim in any

particular order. Rather, we may discuss first any prong that an appellant

cannot satisfy under the prevailing law and the applicable facts and

circumstances of the case.” Commonwealth v. Johnson, 139 A.3d 1257,

1272 (Pa. 2016) (citing Commonwealth v. Albrecht, 720 A.2d 693, 701

(Pa. 1998)).

     Appellant averred that he instructed counsel to withdraw his guilty

plea and that counsel was ineffective for failing to comply with his

instruction. Appellant’s Brief at 16; Amended PCRA Petition, 11/7/14, at 2

and Appendix A. Appellant’s claim is belied by the record.

     The notes of testimony reveal the following exchange:

     THE COURT: Mr. Feinberg, at the last listing there was a
     question about what your client’s preference was.

     MR. FEINBERG: . . . We are here for status on sentencing. If
     you would like to turn that into a sentencing today, my client
     would be fine with that Your Honor.

     THE COURT: Are you ready for sentencing?

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     [ASSISTANT DISTRICT ATTORNEY REBECCA] KENNY: Yes,
     Your Honor.

     THE COURT: The status is whether or not he wanted to receive
     the sentence or do something else regarding his plea.

     MR. FEINBERG: Correct.

     THE COURT: So as I understand it, you want to move ahead
     with sentencing.

     MR. FEINBERG: That’s correct.

     THE COURT: Okay. Call your client up.

     THE CRIER: Can you state your full name for the record, and
     spell your last name?

     [APPELLANT]: Sean Wayne, W-A-Y-N-E.

     THE CRIER: Can you raise your right hand?
          Sean Wayne, W-A-Y-N-E, after having been duly sworn,
     was examined and testified as follows:

     THE COURT: And, Mr. Wayne, do I understand that you do not
     wish to withdraw your plea. Is that correct?

     [APPELLANT]: That’s correct.

     THE COURT: And, you do wish to proceed to sentencing today?

     [APPELLANT]: Yes.

N.T., 4/25/13, at 1-4.

     Thus, Appellant testified under oath that he did not want to withdraw

his guilty plea. It is well settled that a criminal defendant is bound by the

statements made at his guilty plea colloquy, which were made in open court

while under oath, and he cannot assert grounds for withdrawing his plea that

contradicted those sworn statements. Commonwealth v. Willis, 68 A.3d

                                    -5-
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997, 1009 (Pa. Super. 2013). Because there is no support for Appellant’s

claim of ineffective assistance of counsel, the issue had no arguable merit,

and because there were no issues of material fact, there was no need for an

evidentiary hearing. Jones, 942 A.2d at 906. Accordingly, the PCRA court’s

decision is supported by the record, and we affirm the PCRA court’s order

denying Appellant’s petition.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/10/2017




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