J-S41006-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 ANTHONY R. SKELTON                      :
                                         :
                   Appellant             :   No. 316 EDA 2018

              Appeal from the PCRA Order December 26, 2017
    In the Court of Common Pleas of Chester County Criminal Division at
                      No(s): CP-15-CR-0001508-2015


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

MEMORANDUM BY STEVENS, P.J.E.:                    FILED AUGUST 28, 2018

     Appellant Anthony R. Skelton appeals from the order of the Court of

Common Pleas of Chester County dismissing his petition pursuant to the Post

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

has filed a petition to withdraw and a no-merit brief pursuant to

Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988) and

Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988).         We affirm the

PCRA court’s order and grant counsel’s petition to withdraw.

     On March 11, 2016, Appellant entered an open guilty plea to three

counts of Possession With Intent to Deliver a Controlled Substance (PWID)

and one count of Persons Not to Possess Firearms. On November 17, 2016,

the trial court sentenced Appellant to an aggregate sentence of 10¾ to 27½

years’ incarceration.   On November 28, 2016, Appellant filed a timely

counseled motion for the reconsideration of his sentence. On December 5,

____________________________________
* Former Justice specially assigned to the Superior Court.
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2016, Appellant filed a pro se motion for reconsideration. After a hearing, the

lower court denied Appellant’s petition on December 6, 2016.

      Thereafter, on December 15, 2016, Appellant filed a pro se “Motion for

Ineffectiveness of Counsel,” which the lower court considered to be a PCRA

petition given that the filing raised claims of ineffectiveness of counsel. On

December 19, 2016, Appellant filed a pro se Motion to Withdraw Guilty Plea,

which the lower court subsequently denied as untimely filed on January 5,

2017. See Pa.R.Crim.P. 720(A)(1) (post-sentence motions must be filed no

later than ten days after sentencing).

      The lower court recognized that the Appellant’s December 15, 2016

PCRA petition was premature as Appellant had time remaining to file a direct

appeal from the judgment of sentence. After the direct appeal period expired,

the lower court appointed Appellant counsel to represent him on collateral

review. On May 5, 2017, appointed counsel filed an amended PCRA petition.

After holding an evidentiary hearing, the PCRA court denied Appellant’s

petition on December 26, 2017.

      After Appellant filed a timely appeal, PCRA counsel filed a petition to

withdraw and a Turner/Finley no-merit brief. On May 17, 2018, Appellant

filed a pro se response, in which he did not challenge PCRA counsel’s request

to withdraw but alleged that his guilty plea was defective due to trial counsel’s

ineffectiveness.

      As an initial matter, we must evaluate counsel’s petition to withdraw his

representation:

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      Counsel petitioning to withdraw from PCRA representation must
      proceed ... under Turner, supra and Finley, supra and ... must
      review the case zealously. Turner/Finley counsel must then
      submit a “no-merit” letter to the trial court, or brief on appeal to
      this Court, detailing the nature and extent of counsel's diligent
      review of the case, listing the issues which petitioner wants to
      have reviewed, explaining why and how those issues lack merit,
      and requesting permission to withdraw.

      Counsel must also send to the petitioner: (1) a copy of the “no
      merit” letter/brief; (2) a copy of counsel's petition to withdraw;
      and (3) a statement advising petitioner of the right to proceed pro
      se or by new counsel.

      Where counsel submits a petition and no-merit letter that ...
      satisfy the technical demands of Turner/Finley, the court — trial
      court or this Court — must then conduct its own review of the
      merits of the case. If the court agrees with counsel that the claims
      are without merit, the court will permit counsel to withdraw and
      deny relief.

Commonwealth v. Doty, 48 A.3d 451, 454 (Pa.Super. 2012) (quoting

Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa.Super. 2007)) (brackets

omitted).

      After reviewing the record and counsel’s petition to withdraw, we find

that PCRA counsel has complied with the technical requirements of Turner

and Finley, supra. In her no-merit brief, PCRA counsel detailed the nature

and extent of her review, listed an issue of arguable merit, and explained why

she believed the claim was frivolous. Moreover, counsel demonstrated that

her no-merit brief was sent to Appellant and showed that she notified

Appellant of his right to raise additional points for consideration by proceeding

pro se or with the assistance of privately retained counsel. Therefore, we

must proceed with an independent review of this case. Doty, supra.



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      PCRA counsel presents the issue of whether Appellant entered a knowing

and intelligent guilty plea in light of alleged misrepresentations by trial

counsel.   In reviewing the lower court’s decision to deny Appellant’s PCRA

petition, we examine whether the PCRA court's determination “is supported

by the record and free of legal error.” Commonwealth v. Mitchell, 636 Pa.

233, 244, 141 A.3d 1277, 1283–84 (2016) (citations omitted). In order to be

eligible for PCRA relief, the petitioner must prove by a preponderance of the

evidence that his conviction or sentence resulted from one or more of the

enumerated circumstances found in 42 Pa.C.S.A. § 9543(a)(2), which includes

the ineffective assistance of counsel.

      “It is well-established that counsel is presumed effective, and to rebut

that presumption, the PCRA petitioner must demonstrate that counsel's

performance was deficient and that such deficiency prejudiced him.”

Commonwealth v. Koehler, 614 Pa. 159, 36 A.3d 121, 132 (2012) (citing

Strickland v. Washington, 466 U.S. 688, 687-91 (1984)). To prevail on an

ineffectiveness claim, the petitioner has the burden to prove that “(1) the

underlying substantive claim has arguable merit; (2) counsel whose

effectiveness is being challenged did not have a reasonable basis for his or

her actions or failure to act; and (3) the petitioner suffered prejudice as a

result of counsel's deficient performance.” Commonwealth v. Sneed, 616

Pa. 1, 17, 45 A.3d 1096, 1106 (2012) (quoting Commonwealth v. Pierce,

567 Pa. 186, 786 A.2d 203, 213 (2001)). “A petitioner establishes prejudice

when he demonstrates “that there is a reasonable probability that, but for

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counsel's unprofessional errors, the result of the proceeding would have been

different.”   Commonwealth v. Johnson, 600 Pa. 329, 345–46, 966 A.2d

523, 532–33 (2009) (quoting Strickland, 466 U.S. at 694). The failure to

satisfy any one of the three prongs will cause the entire claim to fail. Sneed,

616 Pa. at 18, 45 A.3d at 1106 (citation omitted).

      In the amended petition, Appellant claimed he did not knowingly,

intelligently,   or   voluntarily   enter   his   guilty   plea   due   to   alleged

misrepresentations by trial counsel as to the plea agreement offered by the

Commonwealth. Specifically, Appellant contends that trial counsel told him

that the Commonwealth had agreed Appellant would receive an aggregate

sentence of five to ten years’ imprisonment for the three counts of PWID and

the one count of Persons Not to Possess.

      This Court has previously held that:

            It is clear that a criminal defendant's right to effective
      counsel extends to the plea process, as well as during trial.
      However, [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.

Commonwealth v. Wah, 42 A.3d 335, 338–39 (Pa.Super. 2012) (citations

and quotation marks omitted).

      Despite Appellant’s claim that plea counsel misrepresented that

Appellant would receive a sentence of five to ten years’ imprisonment,



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Appellant signed a written guilty plea colloquy, which clearly indicated that

Appellant was entering an “OPEN PLEA OF GUILTY” to three counts of PWID

and one count of Persons Not to Possess; the written colloquy also states that

“[t]here is no plea bargain or other agreement relating to the plea to those

crimes except as stated below.” Guilty Plea Colloquy, at 2. There were no

remarks or information in the section below to lead Appellant to believe there

was any plea agreement in place.            Appellant signed the colloquy and

specifically added his initials to indicate, inter alia, that (1) he had read and

understood the colloquy, (2) that he discussed the colloquy with his attorney

and had no questions about it, and (3) he had not been made any promises

in connection with the entry of his plea.

      At the plea hearing, the prosecutor placed the relevant facts on the

record relevant to each charge. The factual basis for Appellant’s three PWID

charges was that he sold heroin on three separate occasions to a confidential

informant; in total, Appellant delivered 347 bags of heroin in all, each

containing one or more grams.      Thereafter, a search warrant executed on

Appellant’s home revealed that he was in possession of two loaded firearms

despite the fact that he was not permitted to possess firearms due to his prior

convictions.

      The prosecution also outlined the sentencing guideline ranges and the

statutory maximums for each of Appellant’s charges and emphasized that

Appellant’s extensive criminal record rendered him a repeat felon for the

purposes of his prior record score.

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      When the trial court questioned Appellant about his decision to sign the

written colloquy, he reaffirmed that he had read the colloquy with the

assistance of his counsel and had no questions about it.        Appellant again

confirmed that he had not been made any promises in connection with the

entry of his guilty plea. Notes of Testimony (N.T.), 3/11/16, at 5-6.

      After accepting Appellant’s guilty plea, the trial court made the following

remarks to Appellant:

      [The Court:] All right then, [Appellant], we’ll have you back here
      for sentencing after your attorney has submitted his memo for me
      to consider and after there’s a presentence investigation report
      prepared. It essentially gives me a little bit of background as far
      as your prior record and work history and that sort of thing. And
      when I have you back here for sentencing, I will give you the
      opportunity to speak to me and tell me anything you think I should
      consider in deciding what a fair and just sentence will be.
      All right. Any questions?

      [Appellant:] No, ma’am.

N.T., 3/11/18, at 7-8 (emphasis added). After this exchange, Appellant did

not question the trial court’s assertion that it would decide Appellant’s

sentence or inform the court that the parties had agreed to a negotiated

sentence.

      At sentencing on November 17, 2016, Appellant made the following plea

to the judge:

      Your honor, I would truly – it would truly be a blessing to receive
      the likes of a two-to-four year sentence with some probation, or
      a two-and-a-half to five-year sentence with probation, or even the
      likes of a three-to-six-year sentence running concurrent with my
      parole sentence so I can humbly get on with my life, with my
      lovely beautiful wife and children.

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N.T., 11/17/16, at 23 (emphasis added). In addition, Appellant asked the

court to sentence him within “the mitigated ranges of sentencing.”          N.T.

11/17/16, at 22.

     In addition, at the hearing on Appellant’s motion for reconsideration of

sentence, Appellant actually admitted that he knew there was no plea

agreement in place, but still asserted that he was under the impression that

he would receive a five to ten year sentence:

     [The Court:] All right. [Appellant,] I’m going to interrupt you. And
     the reason is in your motion, you said there’s something new that
     I wasn’t aware of that you wanted me to consider, and I think all
     of that was already told to me. So is there something new you
     want to say?

     [Appellant:] Yes, that I was under the fact – I was under the
     impression that I was going to get a five to ten year deal.

     [The Court:] All right. You pled open. There was no agreement.
     You knew that, right?

     [Appellant:] Yeah. Well, since I don’t have too much knowledge
     of the law, when he gave me the agreement, I’m quite sure he
     said a five-to-ten year deal.

N.T., 12/6/18, at 4 (emphasis added).

     During that hearing, the trial court asked plea counsel about the alleged

agreement:

     The Court: All right. Counsel, did you tell your client that he was
     going to get five to ten years?

     [Counsel:] … From the defense perspective, the Commonwealth’s
     offer was 17 years. I believe that was the Commonwealth’s offer.
     By way of plea bargaining, they reduced the number of counts.
     One of the gun charges was dismissed and things of that nature,
     and then my client and I discussed an open guilty plea. Prior to

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      him pleading guilty, we went over the statutory maximums, the
      guidelines, the possibility that you could run things consecutive,
      things of this nature. So there was absolutely no indication
      that there was an agreement of five years.

N.T., 12/6/18, at 5 (emphasis added).          Based on the aforementioned

testimony, the PCRA court found Appellant was not credible in claiming that

he believed the parties had agreed to a five to ten year sentence. We agree

with the trial court’s finding that it is clear that Appellant understood that no

sentence had been negotiated and that the trial court had the discretion to

determine his sentence.

      Upon review, we conclude that the record supports the PCRA court’s

determination that Appellant did not enter an unknowing or involuntary plea

as there was no merit for Appellant’s claim that he had been misled into

believing that he would be sentenced to five to ten years’ imprisonment. As

a result, we affirm the order dismissing Appellant’s petition and grant

counsel’s petition to withdraw.

     Order affirmed. Petition to withdraw granted.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/28/18




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