J-S42007-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

XAVIER S. DURAH

                            Appellant                 No. 1164 WDA 2013


                   Appeal from the PCRA Order July 12, 2013
              In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0004924-2006
                                          CP-02-CR-0011359-2006
                                          CP-02-CR-0015936-2005
                                          CP-02-CR-0015938-2005
                                          CP-02-CR-0016709-2005

BEFORE: PANELLA, J., JENKINS, J., and MUSMANNO, J.

MEMORANDUM BY PANELLA, J.                       FILED SEPTEMBER 12, 2014

        Appellant, Xavier S. Durah, appeals from the PCRA1 order entered July

12, 2013, by the Honorable Kathleen A. Durkin, Court of Common Pleas of

Allegheny County. We affirm.

        The PCRA court described the history of this case as follows.

              On August 29, 2007, [Appellant], Xavier Durah, pled guilty
        to the charges at [five] cases.

             [Durah] was charged at CC#200604924 with Criminal
        Conspiracy, Theft by Deception, and Receiving Stolen Property.
        The summary of the evidence at the plea was that on November
        30, 2004, a juvenile used a cinderblock to smash a side window
        of an automobile and obtain some of the car’s contents,
____________________________________________


1
    42 Pa.C.S. §§ 9541, et seq.
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     including a checkbook. An eyewitness would have testified at
     trial that he saw the juvenile, at the direction of [Durah], forge
     one of the stolen checks to obtain groceries. Through a search
     of [Durah’s] mother’s house, the police recovered the stolen
     checkbook and another item stolen from the car.

           At CC#200515936, [Durah] pled guilty to two counts of
     Burglary. The Commonwealth summarized that it would have
     produced evidence that on or about August 16, 2005, [Durah]
     entered his neighbor’s house without permission and took
     numerous electronic items. Evidence would have also been
     introduced that [Durah] admitted his involvement in the crime in
     a statement he made to the police. [Durah] admitted that he
     had entered the home of a former employer and that he stole
     property.

            At CC#200515938, [Durah] was charged with one count of
     Burglary.    The Commonwealth stated that it would have
     introduced evidence at trial that on September 18, 2005,
     [Durah] forced his way into his mother’s house without
     permission and stole some items. [Durah], upon his arrest,
     gave a written statement admitting his culpability in the burglary
     of his mother’s house.

            [Durah] was charged at CC#200516709 with two counts of
     Robbery, and one count each of Escape, Theft by Unlawful
     Taking, and Receiving Stolen Property. The Commonwealth
     would have introduced evidence at trial that on September 24,
     2005, [Durah] approached two juvenile girls at a bus stop.
     [Durah] asked them if they used drugs and said he could sell
     them some. He also tried to give them alcohol. When the girls
     declined his offer, [Durah] stated that he had a gun, grabbed
     their purses and cell phone, and ran. Police were called and the
     girls gave a detailed description of the assailant and where he
     ran. A K-9 Officer was brought in and tracked [Durah] to an
     apartment complex. Officers saw [Durah] who ran when they
     tried to detain him. When they caught up with [Durah] again,
     he was placed in the rear of a police car. [Durah] jumped out of
     the car and ran, dropping the girl’s cell phone. He was finally
     arrested a short time later and identified by the girls.

          At CC#200611359, [Durah] was charged with four counts
     of Aggravated Assault, six counts of Recklessly Endangering
     Another Person, and one count each of Resisting Arrest, Escape
     and Disorderly Conduct.   According to the Commonwealth’s

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     summary, on July 12, 2006, [Durah] was appearing before the
     Honorable Lawrence J. O’Toole on the 5th Floor of the Allegheny
     County Courthouse. At the conclusion of the hearing, [Durah]
     was being taken into custody, when he fled. [Durah] climbed
     through a window, and onto the 4th floor roof. A deputy sheriff
     and an assistant district attorney pursued him on the roof. A
     brawl ensued, and [Durah] was eventually taken into custody.

           On August 29, 2007, [Durah] entered a guilty plea to all of
     the above charges, and was sentenced as follows:

          CC#200604924:

                Count 1) 1 to 3 years[‘] incarceration effective July
                12, 2006.

                No further penalty on the remaining counts.

          CC#200515936:

                Count 1) 2 to 4 years[’] incarceration effective July
                12, 2006.

                County 2) 6 years of probation effective upon release
                from incarceration.

          CC#200515938:

                Count 1) 5 years[‘] probation effective upon release
                from incarceration.

          CC#200516709:

                Count 1) 5 to 10 years of incarceration effective July
                12, 2006.

                Count 2) 6 year[s] of probation effective upon
                release from incarceration.

                No further penalty at remaining counts.

          CC#200611359:

                Count 1) 6 to 12 years[‘] incarceration effective July
                12, 2006.

                Count 2) 6 to 12 years[‘] incarceration consecutive
                to Count 1.


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                   No further penalty at the remaining counts.

          On September 5, 2007, [Durah’s] counsel[] filed a motion
     for Modification of Sentence and Withdrawal of Guilty Plea. On
     November 2, 2007, the defense motion was denied. No direct
     appeal was filed.

           On May 8, 2008, [Durah] filed a pro se [PCRA petition].
     On January 3, 2011, counsel filed an Amended Petition for
     [PCRA] Relief. On March 1, 2011, the Commonwealth filed its
     answer.   On March 11, 201, [Durah’s] right to file post-
     sentencing motions and appellate rights were reinstated nunc
     pro tunc.

            On March 22, 2011, Post-Sentence Motions were filed
     alleging that [Durah’s] plea was not knowingly, voluntarily, or
     intelligently entered into because at the time of [Durah’s] plea
     [he] suffered from severe mental health issues, and was under
     the influence of medications that left him frightened, confused,
     and unable to comprehend the plea proceedings. [Durah] also
     asserted that his plea was involuntarily entered because of the
     ineffective assistance of plea counsel. It was also asserted that
     the sentence imposed was manifestly excessive.

          Pursuant to Pa.R.CrimP. 720(B)(3)(b), [Durah’s] post-
     sentence motions were denied [by operation of law] on August
     1, 2011. On August 11, 2011, a Notice of Appeal was filed. …
     On March 27, 2012, [Durah] discontinued his appeal.

            On April 26, 2012, [Durah] filed a new PCRA. Counsel was
     appointed and on August 16, 2012, [counsel] filed a petition for
     appointment of a mental health expert.         The petition was
     granted. On March 5, 2013, counsel filed an amended PCRA
     petition and on April 11, 2013, the Commonwealth filed its
     answer. On April 25, 2013, [the PCRA court] issued a Notice of
     Intention to dismiss pursuant to Pa.R.Crim.P. 907. On July 1,
     2013, the defense responded to the notice of intention to dismiss
     and on July 12, 2013, [Durah’s] PCRA was dismissed without a
     hearing.

PCRA Court Opinion, 12/20/13 at 1-5 (footnotes omitted).         This timely

appeal followed.

     On appeal, Durah raises the following issues for our review:


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J-S42007-14


      Whether Mr. Durah’s guilty plea was involuntary, unknowing and
      unintelligent because he was on powerful psychotropic
      medications at the time of his guilty plea and therefore unable to
      fully understand and comprehend the nature and gravity of the
      charges against him.

      And whether plea counsel was ineffective in failing to investigate
      his client’s obviously impaired state of mind and in otherwise
      failing to ensure the voluntariness and legality of the guilty plea.

      And, whether the PCRA court abused its discretion in summarily
      denying relief while failing to meaningfully consider or resolve
      material factual disputes raised by proffers of lay and expert
      witnesses.

Appellant’s Brief at 5 (unnecessary capitalization omitted).

      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).

      Durah claims that his plea was entered involuntarily, unknowingly, and

unintelligently. Durah could have raised this claim on direct review—had he

pursued a direct appeal.      Therefore, this claim is waived.      See, e.g.,

Commonwealth v. Zook, 887 A.2d 1218, 1227 (Pa. 2005). In any event,

we explain below why, if it had been raised on direct appeal, it would have

failed.

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        In assessing the voluntariness of a guilty plea, we note that “[t]he law

does not require that appellant be pleased with the outcome of his decision

to enter a plea of guilty: All that is required is that [appellant’s] decision to

plead     guilty   be   knowingly,    voluntarily   and   intelligently   made.”

Commonwealth v. Yager, 685 A.2d 1000, 1004 (Pa. Super. 1996) (en

banc) (citation and internal quotation marks omitted).

        With regard to the voluntariness of a plea, a guilty plea colloquy
        must affirmatively demonstrate the defendant understood what
        the plea connoted and its consequences. Once the defendant has
        entered a guilty plea, it is presumed that he was aware of what
        he was doing, and the burden of proving involuntariness is upon
        him. Competence to plead guilty requires a finding that the
        defendant comprehends the crime for which he stands accused,
        is able to cooperate with his counsel in forming a rational
        defense, and has a rational and factual understanding of the
        proceedings against him.

Commonwealth v. Willis, 68 A.3d 997, 1002 (Pa. Super. 2013) (internal

quotation marks and citations omitted).

        Instantly, the trial court engaged in a lengthy guilty plea colloquy,

during which Durah indicated that he had voluntarily filled out and signed

the written guilty plea form with the assistance of his attorney. See N.T.,

Guilty Plea Hearing, 8/29/07 at 27-28.          Durah acknowledged that he

understood the guilty plea form, the nature of the crimes for which he was

charged, and that he was pleading guilty because he was guilty. See id. at

28. Significantly, the following exchange occurred regarding Durah’s mental

state at the opening of the hearing:

        JUDGE DURKIN: Have you had any drugs or alcohol in the last
        48 hours?

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      DEFENDANT DURAH: No, ma’am.

      JUDGE DURKIN:        Are you presently taking any prescribed
      medication?

      DEFENDANT DURAH: Yes, ma’am.

      JUDGE DURKIN: Are you clear-headed right now?

      DEFENDANT DURAH: Yes, ma’am.

      JUDGE DURKIN:      Are you able to understand everything that’s
      going on?

      DEFENDANT DURAH: Yes, ma’am.

      JUDGE DURKIN: Are you able to make decisions?

      DEFENDANT DURAH: Yes, ma’am.

      JUDGE DURKIN: You seem fine to me, but I wanted to make
      sure that was on the record since you are taking some
      prescribed medication.

Id. at 3.

      Despite Durah’s contention that his use of “powerful psychotropic

medications … left him frightened and confused” such that “he did not fully

understand the gravity of the charges,” Durah made sworn statements to

the court during the guilty plea colloquy indicating that his use of prescribed

medication did not affect his judgment or his ability to understand the

nature of the proceedings. “Appellant is bound by these statements, which

he made in open court while under oath, and he may not now asserts

grounds for withdrawing the plea which contradict the statements.” Willis,

68 A.3d at 1009 (citing Commonwealth v. Turetsky, 925 A.2d 876 (Pa.

Super. 2007)).   We further note that the trial court did not observe any

indication that Durah’s mental state was compromised and expressly


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J-S42007-14



indicated that he seemed “fine” prior to conducting the colloquy.          N.T.,

Guilty Plea Hearing, 8/29/07 at 3.     Accordingly, we would have found no

evidence to suggest that Durah’s use of prescription medication during the

hearing rendered his guilty plea unknowing or involuntary.         See Willis,

supra, at 1009 (“Simply put, the mere fact Appellant was taking prescribed

psychotropic medication at the time of his plea does not, of itself, result in

the conclusion he was unable to enter a knowing, voluntary, and intelligent

guilty plea.”).

      We likewise find no merit to Durah’s claim that the ineffective

assistance of trial counsel rendered his guilty plea involuntary. “Allegations

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.”     Commonwealth v. Hickman, 799 A.2d

136, 141 (Pa. Super. 2002) (citation omitted). “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.’” Id. (citations and quotations omitted).

      In reviewing an ineffectiveness claim, we begin with the presumption

that counsel was effective. See Commonwealth v. Duda, 831 A.2d 728,

732 (Pa. Super. 2003).

      To prevail on a claim alleging counsel’s ineffectiveness under the
      PCRA, Appellant must demonstrate (1) that the underlying claim
      is of arguable merit; (2) that counsel’s course of conduct was
      without any reasonable basis designed to effectuate his client’s
      interest; and (3) that he was prejudiced by counsel’s

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         ineffectiveness, i.e. there is a reasonable probability that but for
         the act or omission in question the outcome of the proceeding
         would have been different. If a reasonable basis exists for the
         particular course chosen by counsel, the inquiry ends and
         counsel’s performance is deemed constitutionally effective.

Commonwealth v. Lauro, 819 A.2d 100, 105-106 (Pa. Super. 2003)

(citations omitted). Failure to satisfy any prong of the test requires that the

claim be dismissed. See Commonwealth v. O’Bidos, 849 A.2d 243, 249

(Pa. Super. 2004).

         Herein, Durah premises his ineffective assistance of counsel claim on

counsel’s alleged failure to “investigate and ascertain … the nature and

extent of his client’s mental infirmities and their effect upon his ability to

knowingly and voluntarily plead guilty or to knowingly enter into a general

plea of guilty.” Appellant’s Brief at 20. As we have already determined that

Durah is bound by his sworn statements to the court affirming his

unimpaired mental abilities, he cannot establish that his underlying claim is

of arguable merit. Accordingly, his challenge to trial counsel’s effectiveness

fails.

         We find no error in the PCRA court’s dismissal of the PCRA petition

without a hearing.

         Order affirmed. Jurisdiction relinquished.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/12/2014




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