J-S11024-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    MATTHEW EDWARD WALSH                       :
                                               :
                      Appellant                :   No. 961 WDA 2016

                    Appeal from the PCRA Order June 1, 2016
                 In the Court of Common Pleas of Butler County
              Criminal Division at No(s): CP-10-CR-0001764-2015


BEFORE:      OLSON, J., RANSOM, J., and STEVENS, P.J.E.*

MEMORANDUM BY RANSOM, J.:                                FILED APRIL 21, 2017

        Appellant, Matthew Edward Walsh, appeals from the order entered

June 1, 2016, denying his petition for collateral relief filed under the Post-

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

        The relevant facts underlying this appeal are as follows:

        [P]ostal officers intercepted a package addressed to the
        [Appellant]. Based on certain suspicious characteristics of the
        package, and an alerting signal from a drug sniffing dog, a
        Federal search warrant was obtained for the package. Several
        pounds of marijuana were discovered inside the package. An
        anticipatory search warrant was obtained for the [Appellant’s]
        residence and a controlled delivery was conducted. Following
        the controlled delivery, the [Appellant] was observed outside of
        his residence carrying the package. He was then arrested and
        the search warrant was executed.          More marijuana was
        discovered inside the house, as well as literature relating to
        marijuana.      [Appellant] made incriminating statement[s]
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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      regarding the contents of the package that was delivered. He
      admitted to knowing the value of the marijuana inside and
      admitted to being able to detect an odor of marijuana.

PCRA Ct. Op., 6/1/2016, at 2.

      On December 16, 2015, Appellant entered a negotiated guilty plea to

one count of possession of a controlled substance with the intent to

distribute (PWID) pursuant to 35 Pa.C.S. § 780-113(a)(30). On February 4,

2016, Appellant was sentenced to thirty-six months of intermediate

punishment, with the first nine months on electronic monitoring, which was

deferred for up to thirty days. On February 12, 2016, Appellant received a

letter of official notice of suspension of his driving privilege as a result of his

conviction, effective March 18, 2016 for a period of six months.

      Appellant did not file any post-sentence motion or otherwise appeal

the judgment of sentence.       On March 7, 2016, he filed a PCRA petition

alleging ineffective assistance of counsel. Following an evidentiary hearing

in June 2016, the trial court denied relief. Appellant timely filed a notice of

appeal and court-ordered 1925(b) statement.           The PCRA court issued a

responsive opinion.

      On appeal, Appellant raises the following issue:

      1. Whether the trial court erred in denying Appellant’s petition
         for post-conviction relief where Appellant’s counsel informed
         Appellant, prior to his guilty plea, that he had no chance of
         obtaining a verdict of not guilty and never discussed with
         Appellant the risks of trial, thereby making Appellant’s plea
         unknowing and involuntary?

Appellant’s Br. at 4.



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     Our standard of review is as follows.

     In reviewing the denial of PCRA relief, we examine whether the
     PCRA court's determination ‘is supported by the record and free
     of legal error.’ Commonwealth v. Rainey, 928 A.2d 215, 223
     (Pa. 2007).     To be entitled to PCRA relief, appellant must
     establish, by a preponderance of the evidence, his conviction or
     sentence resulted from one or more of the enumerated errors in
     42 Pa.C.S. § 9543(a)(2)[.]

Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014) (internal citations

and quotation marks omitted).

     “[A]fter a defendant has entered a plea of guilty, the only cognizable

issues in a post-conviction proceeding are the validity of the plea of guilty

and the legality of the sentence.” Commonwealth v. Rounsley, 717 A.2d

537, 538 (Pa. Super. 1998) (citing Commonwealth v. Martinez, 539 A.2d

399 (Pa. Super. 1988)). However, an ineffective assistance of counsel claim

in connection with advice rendered regarding whether to plead guilty is

cognizable under the PCRA pursuant to 42 Pa.C.S. § 9543(a)(2)(ii).         See

Commonwealth v. Barndt, 74 A.3d 185, 191 (Pa. Super. 2013).

     Appellant asserts ineffective assistance of plea counsel on several

grounds.

     [C]ounsel is presumed effective, and [appellant] bears the
     burden of proving otherwise. To prevail on an ineffectiveness
     claim, appellant must establish: (1) the underlying claim has
     arguable merit; (2) no reasonable basis existed for counsel's
     actions or failure to act; and (3) [appellant] suffered prejudice
     as a result of counsel's error such that there is a reasonable
     probability that the result of the proceeding would have been
     different absent such error. Failure to prove any prong of this
     test will defeat an ineffectiveness claim. [I]f a claim fails under

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     any necessary element of the Strickland test, the court may
     proceed to that element first.       When an appellant fails to
     meaningfully discuss each of the three ineffectiveness prongs, he
     is not entitled to relief, and we are constrained to find such
     claims waived for lack of development. Further, counsel cannot
     be deemed ineffective for failing to raise a meritless claim.

Fears, 86 A.3d at 804 (internal citations and quotation marks omitted); see

also Commonwealth v. Flanagan, 854 A.2d 489, 502 (Pa. 2004) (noting

that appellate review of an allegation that counsel was ineffective in

connection with a guilty plea “dovetails with the arguable merit/prejudice

requirements”). In addition,

     [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 appellant to enter an involuntary or
     unknowing plea. In determining whether a guilty plea was
     entered knowingly and intelligently, a reviewing court must
     review all of the circumstances surrounding the entry of that
     plea.

Fears, 86 A.3d at 806–07 (quoting Commonwealth v. Allen, 557 Pa. 135,

732 A.2d 582, 587 (1999) (internal citations omitted)).

     Appellant contends that plea counsel was ineffective for three reasons:

(1) for advising Appellant that he had “no chance” of being found not guilty;

(2) for failing to inform Appellant that his driver’s license would be

suspended as a result of his plea; and (3) incorrectly explaining the

sentencing guidelines. Thus, we will proceed by addressing the PCRA court’s

findings with respect to Appellant’s claims of ineffective assistance of

counsel.




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      Here, Appellant has the burden of showing that counsel’s advice falls

outside the wide range of professionally competent assistance required by

the Sixth Amendment and to establish prejudice.      Appellant contends that

the “preponderance of the evidence” standard is improper. See Appellant's

Br. at 12. This is plainly incorrect. See 42 Pa.C.S. § 9543 (a) (noting that

“a petitioner must plead and prove by a preponderance of the evidence all of

the following: … ineffective assistance of counsel”). To succeed in showing

prejudice in the context of a guilty plea, “the defendant must show that it is

reasonably probable that, but for counsel's errors, he would not have

pleaded guilty and would have gone to trial.”           Commonwealth v.

Hickman, 799 A.2d 136, 141 (Pa. Super. 2002) (citing Hill v. Lockhart,

474 U.S. 52, 59 (1985)); see also Strickland v. Washington, 466 U.S.

668, 694 (1984) (“A reasonable probability is a probability sufficient to

undermine confidence in the outcome.”); see also Missouri v. Frye, 566

U.S. 133, 148 (2012).

      “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.’”

Hickman, 799 A.2d at 141 (holding that counsel’s advice regarding

defendant’s sentence during plea stage was legally unsound and devoid of

any reasonable basis designed to effectuate his interests) (quoting Hill, 474

U.S. at 56 (citations omitted)).




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      Here, Appellant contends that the advice that he would have ‘no

chance’ at winning at trial was ineffective.      At the evidentiary hearing,

counsel testified that he considered the merits of seeking suppression of the

evidence but decided that the facts of the case did not give rise to a

significant probability of success.     PCRA Ct. Op., 6/1/2016, at 2.      In

counsel’s thirty-nine years of practice, he did not consider that Appellant

would have any chance to prevail in a trial based on the evidence and

Appellant’s own incriminating statements. See id. Counsel testified that he

did not remember advising Appellant about potential sentences or that his

license could be suspended if he pled guilty; counsel’s main concern was

that Appellant would not win at trial. See id. at 3. Thus, counsel acted to

convince Appellant to plead guilty as that is what counsel believed was in

Appellant’s best interest.   See id.    The final decision to plead guilty was

made by Appellant. See id.

      Here, the PCRA court stated that counsel’s advice to Appellant that he

had “no chance” at trial was reasonable:

      Given the facts of the case, including that [Appellant] gave
      incriminating statements and additional marijuana was found
      inside [Appellant’s] residence, based on [counsel’s] considerable
      legal experience, he was of the opinion that [Appellant] would
      have been found guilty at trial…. [Counsel] thus advised
      [Appellant] that entering a plea of guilty to a single count of
      PWID pursuant to a negotiated plea agreement that called for a
      county intermediate punishment sentence was the best course of
      action. The performance of counsel in so advising [Appellant]
      did not fall below the standard of competence required by the
      Sixth Amendment of the Federal Constitution and Article 1,
      Section 9 of the Pennsylvania Constitution. As counsel was not


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      ineffective in advising [Appellant] to enter a plea of guilty, it
      cannot be said that counsel’s ineffectiveness caused the
      [Appellant] to enter an unknowing or involuntary plea.

See PCRA Ct. Op., 6/1/2016, at 6.          The PCRA court found that Appellant

failed to establish ineffective assistance of counsel. See id. at 5. We agree.

The legal advice provided by counsel in this case was within the range of

competence demanded; counsel’s advice was legally sound and reasonable.

Hickman, 799 A.2d at 141. Accordingly, we discern no abuse of the PCRA

court’s discretion in rejecting his claim.

      Appellant also suggests that plea counsel was ineffective for failing to

advise him that pleading guilty would result in the suspension of his driver’s

license. This claim is also without arguable merit.

      A statutorily mandated suspension of operating privileges as a result of

a criminal conviction has been held to be a collateral, civil consequence of

the   conviction   and   is   not   part     of   the   criminal   sentence.   See

Commonwealth v. Duffey, 639 A.2d 1174, 1177 (Pa. 1994) (finding

appellee’s suspension was a collateral civil consequence pursuant to 18

Pa.C.S. § 6310.4).    A collateral consequence of a guilty plea is effectively

defined as “a civil requirement over which a sentencing judge has no

control.”   Commonwealth v. Abraham, 62 A.3d 343, 350 (Pa. 2012)

(quoting Commonwealth v. Leidig, 956 A.2d 399, 404 (Pa. 2008) (citing

Duffey, 639 A.2d at 1176-77)). In Abraham, our Supreme Court held that




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“counsel cannot be deemed ineffective for failing to advise a defendant

regarding the collateral consequences of a plea.” Abraham, 62 A.3d at 353.

      Here, Appellant’s license suspension was a statutorily mandated

collateral consequence of Appellant pleading guilty to the offense charged.

See, e.g., Duffey, 639 A.2d at 1177 (noting that the “judge does no more

than guarantee that DOT receives timely notice of the conviction requiring

license suspension as a collateral consequence.”). Upon pleading guilty to

the offense charged, Appellant’s license was suspended by pursuant to 75

Pa.C.S. § 1532(c), which states:

      [The Department of Transportation (DOT)] shall suspend the
      operating privilege of any person upon receiving a certified
      record of the person’s conviction of any offense involving the
      possession, sale, delivery, offering for sale, holding for sale or
      giving away of any controlled substance under the laws of the
      United States, this Commonwealth or any other state.”

75 Pa.C.S. § 1532(c). Counsel cannot be deemed ineffective based on the

alleged failure to inform Appellant that his license would be suspended as a

result of his plea. Abraham, 62 A.3d at 353; Duffey, 639 A.2d at 1177.

Accordingly, the PCRA court did not err in finding Appellant’s claim was

without merit.

      Appellant’s final claim is that counsel was ineffective for failing to

discuss the applicable sentences in this case with him.       The PCRA court

found that little evidence was presented on this claim. The court found that

Appellant failed to demonstrate “by a preponderance of the evidence that

Attorney Fives rendered ineffective assistance by failing to discuss a possible

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sentence if [Appellant] had been convicted at trial.” PCRA Ct. Op. at 8. The

court also noted:

          It is clear that [Appellant] was informed of the maximum
          possible sentence for the charge to which he pled guilty at the
          time he signed his plea colloquy. Prior to an in-court colloquy,
          the record demonstrates that [Appellant] was informed by
          Assistant District Attorney Mark Lope that the charge to which
          [Appellant] was pleading guilty carried a standard range
          sentence of restorative sanctions to nine months. [Appellant]
          admitted during the colloquy that he reviewed the Plea
          Agreement and discussed it with his attorney. Given these facts,
          it is clear that [Appellant] did not enter an unknowing or
          involuntary plea based on some misunderstanding as to the
          sentence he was facing.       It is also important to recognize
          Attorney Fives’ conclusion that [Appellant] would not have
          prevailed at trial, that he was facing two counts of PWID, and
          that if he was convicted [sic] a maximum sentence in the range
          of three to five years was more than a remote possibility.

Id. at 9.        Moreover, the PCRA court’s findings are supported by the

evidentiary record. Accordingly, we affirm the PCRA court’s order denying

relief.

          Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/21/2017




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