J-S20025-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                      IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                         Appellee

                    v.

DAMAR LAMONT JORDAN,

                         Appellant                     No. 1462 WDA 2014


          Appeal from the PCRA Order Entered September 2, 2014
                In the Court of Common Pleas of Erie County
            Criminal Division at No(s): CP-25-CR-0003348-2012


BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, and WECHT, JJ.

MEMORANDUM BY SHOGAN, J.:                                 FILED MAY 22, 2015

      Appellant, Damar Lamont Jordan, appeals from the order denying his

petition for relief filed pursuant to the Post Conviction Relief Act (“PCRA”),

42 Pa.C.S. §§ 9541-9546.           In addition, counsel has filed an application

seeking to withdraw. We grant counsel’s application to withdraw and affirm

the order of the PCRA court.

      A prior panel of this Court summarized the factual and procedural

history of this case as follows:

            On September 30, 2012, in the 600 block of Wallace
      Street, [Appellant] shot and killed Kendall Bryant and seriously
      wounded Ramone Lemon. N.T., 4/25/13, at 7-8. Thereafter,
      the Commonwealth charged [Appellant] with murder (18
      Pa.C.S.A. § 2501(a)), attempted murder (18 Pa.C.S.A. §§ 901,
      2501(a)), two counts of aggravated assault (18 Pa.C.S.A. §
      2702(a) (1)), two counts of recklessly endangering another
      person (18 Pa.C.S.A. § 2705), possessing an instrument of crime
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       (18 Pa.C.S.A. § 907(a)) and firearms not to be carried without a
       license (18 Pa.C.S.A. § 6106(a)(1)).

              [Appellant] pled guilty pursuant to an open plea to third-
       degree murder and aggravated assault.          In exchange, the
       Commonwealth withdrew all other charges. On June 20, 2013,
       the trial court sentenced [Appellant] to serve 180 to 360 months
       of imprisonment for his conviction of third-degree murder and 66
       to 132 months of imprisonment for his conviction of aggravated
       assault. The trial court imposed the term of imprisonment for
       aggravated assault consecutively to the term of imprisonment
       for third-degree murder.

             On July 2, 2013, the trial court denied [Appellant’s] motion
       to modify his sentence.1 Thereafter, [Appellant] filed a timely
       notice of appeal followed by a court-ordered Pa.R.A.P. 1925(b)
       statement. The trial court filed its Pa.R.A.P. 1925(a) opinion on
       September 6, 2013.
              1
                Our thorough review of the certified record on
              appeal reveals that [Appellant’s] counsel never filed
              the motion to modify sentence of record.

Commonwealth v. Jordan, 1255 WDA 2013, 97 A.3d 102 (Pa. Super. filed

February 11, 2014) (unpublished memorandum at 1-2). This Court affirmed

Appellant’s judgment of sentence. Id. Appellant did not file a petition for

allowance of appeal to the Pennsylvania Supreme Court.

       On June 16, 2014, Appellant filed a timely PCRA petition. Counsel was

appointed and filed a supplemental PCRA petition.         Supplemental PCRA

Petition, 7/28/14. On July 31, 2014, the PCRA court issued an opinion and

notice of intent to dismiss the petition pursuant to Pa.R.Crim.P. 907(1).1 On

____________________________________________


1
    In the opinion, the PCRA court amended its sentencing order as to
restitution. The initial restitution ordered for counts one and two was
(Footnote Continued Next Page)


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September 2, 2014, the PCRA court entered its final order denying collateral

relief. On September 5, 2014, Appellant filed a notice of appeal. The PCRA

court issued a Pa.R.A.P. 1925(a) opinion, relying on the analysis provided in

its notice of intent to dismiss.

      On December 9, 2014, PCRA counsel filed a motion to withdraw as

counsel; she also filed with this Court a Turner/Finley2 document. When

counsel seeks to withdraw representation in a collateral appeal, the following

conditions must be met:

      1)   As part of an application to withdraw as counsel, PCRA
      counsel must attach to the application a “no-merit” letter[;]

      2)    PCRA counsel must, in the “no-merit” letter, list each claim
      the petitioner wishes to have reviewed, and detail the nature
      and extent of counsel’s review of the merits of each of those
      claims[;]

      3)    PCRA counsel must set forth in the “no-merit” letter an
      explanation of why the petitioner’s issues are meritless[;]

      4)     PCRA counsel must contemporaneously forward to the
      petitioner a copy of the application to withdraw, which must
      include (i) a copy of both the “no-merit” letter, and (ii) a
      statement advising the PCRA petitioner that, in the event the
      trial court grants the application of counsel to withdraw, the
      petitioner has the right to proceed pro se, or with the assistance
      of privately retained counsel;


                       _______________________
(Footnote Continued)

combined and assigned to count one only. No restitution remained at Count
two.
2
   Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finely, 550 A.2d 213 (Pa. Super. 1988) (en banc).



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      5)    The court must conduct its own independent review of the
      record in light of the PCRA petition and the issues set forth
      therein, as well as of the contents of the petition of PCRA
      counsel to withdraw; and

      6)    The court must agree with counsel that the petition is
      meritless.

Commonwealth v. Daniels, 947 A.2d 795, 798 (Pa. Super. 2008) (internal

punctuation marks omitted).

      In the present case, counsel complied with the requirements for

withdrawal from a collateral appeal.    In the motion filed with this Court,

counsel alleged that she has reviewed the case, evaluated the issues, and

concluded that, as expressed in the attached no-merit letter, the appeal

lacks merit. Counsel has also listed the issue relevant to this appeal, and

explained why, in her opinion, it is without merit.     In addition, counsel

averred that she has sent Appellant a copy of the motion to withdraw and

the no-merit letter, which advises Appellant of his right to proceed pro se or

through privately retained counsel. Thus, we will allow counsel to withdraw

if, after our review, we conclude that the issue relevant to this appeal lacks

merit.

      We have discerned the following issue, which was presented by PCRA

counsel on behalf of Appellant in the Pa.R.A.P. 1925(b) statement:

      Did the PCRA Court err in denying Appellant’s PCRA Petition and
      finding that Appellant’s plea was voluntarily and knowingly




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       entered under oath and will [sic] full knowledge of the possible
       consequences?

Appellant’s Brief at 5.3

       Our standard of review of an order denying PCRA relief is whether the

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

court’s determination is free of legal error. Commonwealth v. Phillips, 31

A.3d 317, 319 (Pa. Super. 2011) (citing Commonwealth v. Berry, 877

A.2d 479, 482 (Pa. Super. 2005)).              The PCRA court’s findings will not be

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

Id. (citing Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super.

2001)).

       To the extent that Appellant argues that his plea was not knowingly or

voluntarily entered, Appellant’s Brief at 14, 16-17, we find this issue waived.

Appellant could have raised this issue on direct appeal, but failed to do so.

See Commonwealth v. Lambert, 797 A.2d 232, 240 (Pa. 2001) (issues

that could have been raised on direct appeal but were not are waived under

the PCRA); 42 Pa.C.S. § 9544(b) (issue is waived if petitioner failed to raise
____________________________________________


3
    Although this single issue is presented in the statement of questions
presented for review, Appellant’s counsel identifies and addresses an
additional claim throughout the brief. Specifically, Appellant also asserts
that trial counsel was ineffective for advising Appellant that his sentence
could not exceed fifteen years even though the crimes for which Appellant
entered his plea were crimes that exposed Appellant to an aggregate
sentence far exceeding fifteen years.      Appellant’s Brief at 13, 14-15.
Accordingly, we shall address the two related issues in determining whether
either issue supports a grant for relief.



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it, and it could have been raised before trial, at trial, on appeal, in habeas

corpus proceeding, or in prior proceeding under PCRA).

      Appellant also asserts that trial counsel was ineffective for providing

Appellant    with   erroneous   advice    regarding    his    sentence    exposure.

Appellant’s Brief at 15. Appellant maintains that defense counsel told him

that his plea would result in an aggregate maximum sentence of no more

than fifteen years of incarceration.       Id.   Appellant further argues that

counsel’s statement that Appellant would receive no more than fifteen years,

when the potential sentence was much higher, was not reasonably designed

to effectuate Appellant’s interests. Id. Additionally, Appellant contends that

counsel’s unreasonable performance prejudiced Appellant because he relied

on   this   erroneous advice    when     accepting    the    plea   offered   by   the

Commonwealth.       Id.   Appellant maintains that his plea was unlawfully

induced due to trial counsel’s erroneous statements pertaining to the

aggregate sentence. Id.

      Ineffectiveness claims are cognizable under the PCRA. Lambert, 797

A.2d 232, 242; 42 Pa.C.S. § 9543(a)(2)(ii). When considering an allegation

of ineffective assistance of counsel, counsel is presumed to have provided

effective representation unless the PCRA petitioner pleads and proves that:

(1) the underlying claim is of arguable merit; (2) counsel had no reasonable

basis for his or her conduct; and (3) Appellant was prejudiced by counsel’s

action or omission.    Commonwealth v. Pierce, 527 A.2d 973, 975-976


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(Pa. 1987).    “In order to meet the prejudice prong of the ineffectiveness

standard, a defendant must show that there is a reasonable probability that

but for the act or omission in question the outcome of the proceeding would

have been different.” Commonwealth v. Wallace, 724 A.2d 916, 921 (Pa.

1999). A claim of ineffective assistance of counsel will fail if the petitioner

does not meet any of the three prongs. Commonwealth v. Williams, 863

A.2d 505, 513 (Pa. 2004).

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

process as well as during trial.”   Commonwealth v. Hickman, 799 A.2d

136, 141 (Pa. Super. 2002).     “The law does not require that appellant be

pleased with the outcome of his decision to enter a plea of guilty[.]”

Commonwealth v. Diaz, 913 A.2d 871, 873 (Pa. Super. 2006) (citation

omitted).     Instead, “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.” Commonwealth

v. Morrison, 878 A.2d 102, 105 (Pa. Super. 2005). “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.

Lynch, 820 A.2d 728, 733 (Pa. Super. 2003). Therefore, “[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.” Commonwealth v. Boyd, 835 A.2d 812,


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815 (Pa. Super. 2003). If the ineffective assistance of counsel caused the

defendant to enter an involuntary or unknowing plea, the PCRA will afford

the defendant relief. Hickman, 799 A.2d at 141.

      In order to ensure a voluntary, knowing, and intelligent plea, trial

courts are required to ask the following questions in the guilty plea colloquy:

      1) Does the defendant understand the nature of the charges to
      which he or she is pleading guilty or nolo contendere?

      2) Is there a factual basis for the plea?

      3) Does the defendant understand that he or she has the right to
      a trial by jury?

      4) Does the defendant understand that he or she is presumed
      innocent until found guilty?

      5) Is the defendant aware of the permissible ranges of sentences
      and/or fines for the offenses charged?

      6) Is the defendant aware that the judge is not bound by the
      terms of any plea agreement tendered unless the judge accepts
      such agreement?

      7) Does the defendant understand that the Commonwealth has a
      right to have a jury decide the degree of guilt if defendant pleads
      guilty to murder generally?

Pa.R.Crim.P. 590; Commonwealth v. Pollard, 832 A.2d 517, 522–523 (Pa.

Super. 2003). “The guilty plea colloquy must affirmatively demonstrate that

the defendant understood what the plea connoted and its consequences.”

Commonwealth v. Lewis, 708 A.2d 497, 501 (Pa. Super. 1998). “Once a

defendant has entered a plea of guilty, it is presumed that he was aware of

what he was doing, and the burden of proving involuntariness is upon him.”

Commonwealth v. Stork, 737 A.2d 789, 790 (Pa. Super. 1999) (citation

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and internal brackets omitted). “In determining whether a guilty plea was

entered knowingly and voluntarily, ... a court ‘is free to consider the totality

of the circumstances surrounding the plea.’” Commonwealth v. Flanagan,

854 A.2d 489, 513 (Pa. 2004) (citation and internal quotation marks

omitted).

      In the case sub judice, during the plea hearing, Appellant was provided

with the relevant information and asked the necessary questions pursuant to

Pa.R.Crim.P. 590.     N.T., 4/25/13, at 1-11.        Specifically, the following

exchange regarding the potential sentence ranges took place:

      [Commonwealth]:          Pursuant to negotiations with your
      attorney, you have agreed to come here today and enter pleas
      of guilty to third degree murder and aggravated assault[,] and
      whatever other charges were filed against you would be
      withdrawn. Now, the judge has to accept that plea. And if he
      accepts the plea, it’s final. If he doesn’t accept the plea, you
      would still be presumed innocent, and we would head to trial.

             The maximum penalty for third degree murder is 40 years
      in prison and a $25,000 fine. In addition, there is a five-year
      mandatory minimum penalty for that, which means that no
      matter what your sentence is – and I don’t know what your
      sentence will [be] – the judge has to at least give you five years
      in prison because you used a gun. We’re not saying that 40
      years is what you would get. We’re saying that’s the most the
      judge could sentence you to. Okay?

      [Appellant]:      (Nods head affirmatively.)

      [Commonwealth]:         The other charge that you’re pleading
      guilty to is aggravated assault for the second person involved.
      The maximum penalty for that is 20 years in prison and a
      $25,000 fine. Again, there is a five-year mandatory minimum
      because a gun was used, so you would have to serve at least
      five years on that. And it would be up to the judge whether he
      ran the five years consecutive, which means it would be five plus

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     five, or concurrent, which means it would just be the five
     running together. Okay? That’s up to the judge.

     [Appellant]:      All right.

     [Commonwealth]:       So what that means in sum is, is that if
     you were sentenced to the maximum penalty, you could face 60
     years in prison and $50,000 in fines and up to ten years in
     mandatory minimums. Okay?

     [Appellant]:      Okay.

     [Commonwealth]:           Understand that?

     [Appellant]:      Yeah, I do.

Id. at 3-4.      During that hearing, Appellant executed a “Defendant’s

Statement of Understanding of Rights Prior to the Entry of a Guilty Plea.”

Id. at 7; Defendant’s Statement of Understanding of Rights prior to

Guilty/No Contest Plea, 4/25/13, at 1. In signing it and upon questioning,

Appellant did not indicate any questions or concerns regarding the oral

colloquy or the written guilty plea memorializing the oral colloquy.     N.T.,

4/25/13, at 7.    Trial counsel advised the court that after discussing the

matter with Appellant, counsel was satisfied that Appellant’s plea was

voluntarily and knowingly entered. Id. at 9. Appellant also stated that he

discussed the matter with his attorney and indicated that he had no

questions regarding the entry of his plea.        Id. at 10.   The trial court

concluded the hearing with the following statement:

     [B]ased on the court’s observations, the plea colloquy of record,
     Appellant’s Statement of Understanding of Rights, and the
     Criminal Information, both of which have been signed by
     [Appellant] and his attorney, the court finds the pleas to be

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      voluntarily and knowingly entered, and accepts the pleas at this
      time.

Id. at 11.

      Thus, based on the testimony at the plea hearing, we conclude that

there is no merit to Appellant’s claim.      The maximum penalties for each

charge were set forth for Appellant, and he indicated that he understood the

sentencing possibilities he was facing.       Additionally, when questioned,

Appellant indicated that he understood the sentencing possibilities and that

he had no questions regarding the plea agreement.

      Moreover, trial counsel executed an affidavit, and in it made the

following statements:

      I was able to negotiate a plea offer for [Appellant] that included
      a 3rd degree murder charge for the homicide of Kendall Bryant,
      an aggravated assault charge for the shooting of Mr. Lemon, and
      the remaining charges would be nolle prossed.

            On the same day I received this plea offer [from the
      Commonwealth], I had a consultation with [Appellant] at the
      Erie County Jail. At that time I discussed the plea offer from the
      Commonwealth as well as the standard range sentences for each
      charge. [Appellant] was aware that with the deadly weapon
      enhancement the 3rd degree murder charge carried a standard
      range sentence of 90 months to the statutory limits.
      Additionally, [Appellant] was aware that the standard range
      sentence for the aggravated assault charge with the deadly
      weapon enhancement was 54 to 72 months. [Appellant] was
      presented with the sentencing matrix for these charges during
      the consultation. Recent sentences in Erie County for 3rd Degree
      murder, were also discussed with [Appellant]. Considering those
      sentences, I explained that while the low end of the sentencing
      guideline for 3rd degree murder was 7 ½ years, I expected his
      sentence would be closer to 15 years for the 3rd degree murder
      charge.     It was also discussed that all sentences are
      discretionary with the judge and that I could not guarantee what

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      [Appellant] could receive as a sentence. In that same regard, I
      did explain that within the judge’s discretion is the decision to
      run sentences concurrently or consecutively, therefore, there
      was a possibility that the judge could run the sentences for the
      3rd degree murder charge and the aggravated assault charge
      concurrently. However, because there were two victims the
      judge would be well within his discretion to run the sentences
      consecutively. At no point did I promise a specific sentence or
      guarantee a specific sentence to [Appellant].

            Furthermore, it was discussed with [Appellant] that he did
      not have to accept the plea and we could proceed to trial. The
      trial was currently scheduled for the May 2013 trial term.
      Therefore, [Appellant’s] claim in his P.C.R.A. petition that the
      Commonwealth’s      plea   offer  was     discussed   with   him
      approximately two weeks prior to trial is accurate. However, the
      negotiated plea was discussed with him as soon as it was offered
      by the Commonwealth. Moreover, [Appellant] knowingly and
      voluntarily entered a plea that mitigated his potential exposure
      to a 1st degree murder conviction and an attempted 1st degree
      murder conviction. Additionally, the Commonwealth agreed not
      to discuss the severity of the injuries sustained by Ramone
      Lemon, nor the current medical condition of Mr. Lemon, which as
      reported to me included the limited mobility of Mr. Lemon and
      the necessity of Mr. Lemon to wear a colostomy bag since the
      incident. Moreover, the Commonwealth, while refusing to make
      a sentencing recommendation, did agree not to oppose
      concurrent sentences.

Supplemental PCRA petition, Exhibit F, at 3-4.

      Thus, there is additional evidence that Appellant was advised of the

sentencing possibilities.   Trial counsel asserted that he did not promise

Appellant that the sentences would run concurrently and not consecutively.

We find no merit to Appellant’s claim that counsel told Appellant that the

maximum aggregate sentence he could get would be fifteen years.           We

therefore conclude there is no merit to Appellant’s claim that he did not

knowingly or voluntarily enter his plea based on counsel’s erroneous advice.

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Accordingly, there is no merit to the underlying claim that trial counsel

induced Appellant to enter his guilty plea based on erroneous advice. The

PCRA court properly denied Appellant’s PCRA petition.

     In summary, it is our determination that Appellant failed to present an

issue warranting relief. Also, having determined after independent review of

the record that there are no other issues that support a grant of relief, we

allow counsel to withdraw.

     Motion to withdraw granted. Order affirmed. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/22/2015




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