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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

DAVID BELTON

                            Appellant                No. 1147 WDA 2014


                  Appeal from the PCRA Order June 18, 2014
              In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0008378-2012


BEFORE: PANELLA, J., LAZARUS, J., and STRASSBURGER, J.*

MEMORANDUM BY PANELLA, J.                              FILED JUNE 15, 2015

        Appellant, David Belton, appeals from the order that dismissed his

petition pursuant to the Post Conviction Relief Act (“PCRA”) without a

hearing. We affirm.

        In the underlying criminal action, Belton was charged with one count

of simple assault arising from an incident outside a nightclub in which he

struck his ex-girlfriend with a closed fist.     On November 28, 2012, he

appeared in court with privately retained counsel, intending to plead guilty

to the charge pursuant to a plea agreement with the Commonwealth.

However, the trial court observed that Belton had a significant prior record

score and had recently been released from prison on an unrelated assault
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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charge. As a result, the trial court indicated that it was reluctant to agree to

be bound by the sentencing terms of the plea agreement.

      Belton responded by expressing remorse for the incident and claiming

that he was attempting to reform.        Of particular relevance to Belton’s

subsequent PCRA petition, the trial court responded to Belton’s request for

leniency by observing that there was nothing to think about, as the crime

had been caught on videotape.      After consulting with his attorney, Belton

indicated that in the absence of the agreement on sentencing, he would

proceed to trial. His privately retained counsel immediately withdrew from

the case.

      Nearly two months later, Belton returned to the trial court, this time

with appointed counsel.    Appointed counsel stated that she had just been

assigned to Belton, but that she had spoken to Belton at the prison, and that

he wanted to plead guilty. Appointed counsel further indicated on the record

that she was not prepared to proceed to trial, as she had received no

discovery from the Commonwealth or Belton’s prior counsel. Furthermore,

appointed counsel informed the court that the probation department had no

objections to the negotiated plea agreement’s sentencing terms.

      The trial court once again stated that it was not willing to be bound by

the terms of the negotiated agreement.        In response, appointed counsel

indicated that Belton wished to proceed despite the absence of the

negotiated sentencing terms. The trial court advised Belton that it desired


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to review a pre-sentence report before sentencing him, as it might work in

Belton’s favor. However, appointed counsel stated that Belton did not want

to wait for the preparation of a pre-sentence report; he wanted to proceed

with sentencing immediately.

         The trial court proceeded with the guilty plea colloquy and sentenced

Belton to a term of imprisonment of one to two years. No direct appeal was

filed.   On November 12, 2013, Belton filed a timely pro se PCRA petition.

The PCRA court appointed counsel to Belton, who then filed an amended

PCRA petition.

         Prior to filing the amended PCRA petition, counsel filed a request for

special discovery from the Commonwealth.           At issue was the alleged

videotape of the crime.      Despite the fact that the PCRA court denied the

request, the Commonwealth engaged in an investigation to locate the

videotape.      After several inquiries by the Commonwealth, the assistant

district attorney indicated that the tape no longer existed, and that it was

unlikely to ever have been in the Commonwealth’s possession.            In the

amended petition, Belton argued that appointed counsel had been ineffective

by failing to learn of the absence of the videotape before allowing Belton to

plead guilty. After notice of its intent to dismiss, the PCRA court dismissed

Belton’s amended petition on June 18, 2014. This timely appeal followed.

         On appeal, Belton argues that the PCRA court erred in dismissing his

petition without a hearing.        While split into two sub-arguments, this


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argument ultimately resolves into an allegation that appointed counsel was

not appropriately prepared to advise Belton on the guilty plea.     Thus, the

argument raises an ineffective assistance of counsel claim.

      Our standard of review of a PCRA court’s denial of a petition for post-

conviction relief is well-settled.   We must examine whether the record

supports the PCRA court’s determination and whether the PCRA court’s

determination is free of legal error. See Commonwealth v. Hall, 867 A.2d

619, 628 (Pa. Super. 2005). The PCRA court’s findings will not be disturbed

unless there is no support for the findings in the certified record.     See

Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super. 2001).              Our

scope of review is limited by the parameters of the PCRA.                See

Commonwealth v. Heilman, 867 A.2d 542, 544 (Pa. Super. 2005).

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

prove by a preponderance of the evidence that his conviction or sentence

resulted from one of the errors listed in 42 Pa.C.S.A. § 9543(a)(2)(i)-(viii).

See Commonwealth v. Albrecht, 720 A.2d 693, 698 (Pa. 1998). Section

9543(a)(2) requires, inter alia,

         (2) That the conviction or sentence resulted from one or
         more of the following:

         (i) A violation of the Constitution of this Commonwealth
         or the Constitution or laws of the United States 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.




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         (ii) 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.

         (iii) A plea of guilty unlawfully induced where the
         circumstances make it likely that the inducement caused
         the petitioner to plead guilty and the petitioner is
         innocent.

         (iv) The improper obstruction by government officials of
         the petitioner's right of appeal where a meritorious
         appealable issue existed and was properly preserved in
         the trial court.

         (v) Deleted.

         (vi) The unavailability at the time of trial of exculpatory
         evidence that has subsequently become available and
         would have changed the outcome of the trial if it had
         been introduced.

         (vii) The imposition of a sentence greater than the lawful
         maximum.

         (viii) A proceeding in a tribunal without jurisdiction.

42 Pa.C.S.A. § 9543(a)(2)(i)-(viii).

      Belton argues that trial counsel was ineffective in advising him with

respect to the guilty plea.      In addressing Belton’s claim of counsel’s

ineffectiveness, we turn to the following principles of law:

      In order for Appellant to prevail on a claim of ineffective
      assistance of counsel, he 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 … Appellant must
      demonstrate: (1) the underlying claim is of arguable merit; (2)
      that counsel had no reasonable strategic basis for his or her
      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.

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Commonwealth v. Johnson, 868 A.2d 1278, 1281 (Pa. Super. 2005).

Moreover, “[w]e presume counsel is effective and place upon Appellant the

burden of proving otherwise.”      Commonwealth v. Springer, 961 A.2d

1262, 1267-1268 (Pa. Super. 2008).         This Court will grant relief only if

Appellant satisfies each of the three prongs necessary to prove counsel

ineffective.   See Commonwealth v. Natividad, 938 A.2d 310, 322 (Pa.

2007). Thus, we may deny any ineffectiveness claim if “the evidence fails to

meet a single one of these prongs.” Id., at 321 (citation omitted).

      “A criminal defendant has the right to effective counsel during a plea

process….” Commonwealth v. Hickman, 799 A. 2d 136, 141 (Pa. Super.

2002). “Claims challenging the effectiveness of plea counsel’s stewardship

during a guilty plea are cognizable under 42 [Pa.C.S.A.] § 9543(a)(2)(ii).”

Commonwealth v. Lee, 820 A.2d 1285, 1287 (Pa. Super. 2003) (citation

omitted).      In Commonwealth v. Morrison, 878 A.2d 102 (Pa. Super.

2005), the panel explained that we review allegations of counsel’s

ineffectiveness in connection with a guilty plea as follows:

      The standard for post-sentence withdrawal of guilty pleas
      dovetails with the arguable merit/prejudice requirements for
      relief based on a claim of ineffective assistance of plea counsel,
      see generally Commonwealth v. Kimball, 555 Pa. 299, 312,
      724 A.2d 326, 333 (1999), under which the defendant must
      show that counsel’s deficient stewardship resulted in a manifest
      injustice, for example, by facilitating entry of an unknowing,
      involuntary, or unintelligent plea. See, e.g., [Commonwealth
      v.] Allen, 557 Pa. [135,] 144, 732 A.2d [582,] 587 [(1999)]
      (“Allegations of ineffectiveness in connection with the entry of a
      guilty plea will serve as a basis for relief only if the


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      ineffectiveness caused appellant to enter an involuntary or
      unknowing plea.”)….

Id., at 105 (quoting Commonwealth v. Flanagan, 578 Pa. 587, 608-609,

854 A.2d 489, 502 (2004)) (brackets in original).           “This standard is

equivalent to the ‘manifest injustice’ standard applicable to all post-sentence

motions to withdraw a guilty plea.” Id. (citation omitted). “To succeed in

showing prejudice, 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).

      “[A] defendant is bound by the statements which he makes during his

plea colloquy.”    Commonwealth v. Barnes, 687 A.2d 1163, 1167 (Pa.

1997) (citations omitted). As a result, a defendant “may not assert grounds

for withdrawing the plea that contradict statements made when he pled

guilty.”   Id.;   Commonwealth v. Yeomans, 24 A.3d 1044 (Pa. Super.

2011).

      Here, the record indicates that Belton was aware that appointed

counsel did not have the opportunity to review the strength of the

Commonwealth’s case against him. See N.T., Guilty Plea, 1/22/13, at 5 (“I

know I certainly am not [ready to go forward today], considering I have

absolutely no discovery other than the affidavit in the file.”) Furthermore,

appointed counsel repeatedly indicated that Belton desired to resolve this

case and plead guilty immediately. See id., at 3; 6; 8. Appointed counsel

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also stated that Belton desired to waive the pre-sentence report, as “he just

wants to get it over with today, your Honor.” Id., at 8.

      Belton never objected to these statements made by appointed counsel.

More importantly, Belton does not allege in his PCRA petition that appointed

counsel misrepresented his desires at the guilty plea, or that counsel even

advised him to accept the guilty plea. This Court has consistently recognized

that “[t]he decision whether to plead guilty or contest a criminal charge is

probably the most important single decision in any criminal case. This

decision must finally be left to the client’s wishes; counsel cannot plead a

man guilty, or not guilty, against his will.” Commonwealth v. Chazin, 873

A.2d 732, 735 (Pa. Super. 2005) (citation omitted). The transcript from the

guilty plea hearing establishes that Belton desired to plead guilty despite

knowing that appointed counsel had not yet received any discovery.        As

Belton did not plead in his petition that appointed counsel misled him,

misrepresented his desires, or otherwise misspoke at the guilty plea hearing,

he cannot establish that appointed counsel was ineffective for acceding to

his evident desire to plead guilty.   Thus, neither of Belton’s arguments on

appeal merit relief.

      Order affirmed. Jurisdiction relinquished.



Judgment Entered.




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Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/15/2015




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