J-S86016-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                            IN THE SUPERIOR COURT OF
                                                              PENNSYLVANIA
                            Appellee

                       v.

DEMETRIOUS KING

                            Appellant                       No. 105 WDA 2016


                 Appeal from the PCRA Order December 17, 2015
                In the Court of Common Pleas of Allegheny County
               Criminal Division at No(s): CP-02-CR-0016756-2012


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

MEMORANDUM BY MOULTON, J.:                                 FILED MARCH 10, 2017

       Demetrious King appeals from the December 17, 2015 order entered

in the Allegheny County Court of Common Pleas denying his petition filed

pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-46.

King’s counsel has filed with this Court a Turner/Finley1 no-merit letter and

a motion to withdraw as counsel.               We affirm the PCRA court’s order and

grant counsel’s motion to withdraw.

       The trial court summarized the relevant factual and procedural history

of this matter as follows:


____________________________________________


       *
           Former Justice specially assigned to the Superior Court.
       1
      Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988);
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).
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               This matter arises out of [King’s] guilty plea on
           December 17, 2013 to charges of flight to avoid
           apprehension[;] fleeing or eluding a police officer[;]
           altered forged or counterfeit documents; four counts of
           recklessly endangering another person; resisting arrest;[2]
           and[] various motor vehicle code violations. At the time of
           his plea [King] was represented by Attorney Frank Walker.
           After    an   appropriate     colloquy    regarding   [King’s]
           understanding of the charges, it was acknowledged that
           there was no plea agreement.[3]          The Commonwealth
           presented a summary of the evidence regarding [King’s]
           failure to stop for a traffic violation and an ensuing police
           chase culminating in [King’s] arrest, to which there [were]
           no objections, additions or corrections.          [King] also
           acknowledged executing the Guilty Plea and Explanation of
           Rights Form.     [King’s] plea was then accepted and a
           presentence report was ordered.          In response to the
           indication that a presentence report was being ordered and
           being asked by the Court if he understood what that
           meant, [King] asked, “So that means I can get more time
           than what I'm signing the plea about?” In response to that
           comment Attorney Walker asked to confer with [King] and
           after doing so, [King] indicated that he understood.

              At the sentencing hearing on July 17, 2014 Attorney
           Walker vigorously argued for a sentence structured so that
           [King] would be sentenced to consecutive sentences of 11
           1/2 to 23 months “back to back” so that he “stays in the
           county, he can complete the GED program and gets
           assistance for his substance abuse.[”] However, it was
           noted that this sentence could not be imposed as
           requested as it would be recognized as a state sentence
           and [King] would be transferred from the county jail. In
           addition, it was noted that [King’s] guidelines were so high
           due to his lengthy criminal record that even in the
____________________________________________


       2
       18 Pa.C.S. § 5126(a), 75 Pa.C.S. § 3733(a), 75 Pa.C.S. § 7122(1),
18 Pa.C.S. § 2705, and 18 Pa.C.S. § 5104, respectively.
       3
       The trial court’s reference to “no plea agreement” means that the
Commonwealth and King had not agreed upon a sentence or other
concession in return for King’s guilty plea.



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       mitigated range, the sentence was 21 to 42 months. After
       discussion about a possible probation violation, the
       following exchange took place:

              The Court: I don’t know the facts of the
              probation hearing. That is a separate issue
              that we will have to deal with at a later date.
              Is there anything you want to say on this case?

              [King]: The reason I took the plea was because
              I understood that I was going to get 11-and-a-
              half to 23 months.

              The Court: I can’t do that, do you understand?
              Do you want to take a minute and talk to him?

              Mr. Walker: Sure.

       After conferring with [King], Attorney Walker indicated that
       he explained the situation to [King], including the
       background and presentence report and “how parole and
       probation works together and sometimes against each
       other.” Counsel then asked for a sentence at the bottom
       of the mitigated range. [King] then was sentenced to
       concurrent sentences of 21 to 42 months at counts one
       and two and a concurrent sentence of 12 to 24 months at
       count three.     He was then sentenced to 10 years of
       aggregate probation on the remaining counts. [King] was
       then given an opportunity to ask a question about the
       sentence at which time he questioned the length of the
       probation. In response, [King] was informed that if he had
       no probation violations after three years probation, he
       could request a reduction at that time.

          [King] filed a pro se PCRA Petition on April 3, 2015 and
       a Amended PCRA petition was filed on September 4, 2015.
       In the Amended Petition[,] claims were raised of
       ineffective assistance of counsel in failing to file post
       sentence motions or an appeal and in inducing [King] to
       enter into his plea by promising him that he would receive
       a county sentence. The Commonwealth filed an answer
       conceding that an evidentiary hearing was necessary to
       address the claims. [On November 5, 2015, King filed a
       Supplemental Amended PCRA petition.]



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           At the PCRA hearing, [King] identified a letter he
       received from Attorney Walker dated October 23, 2013
       that was offered into evidence.1 [King] indicated that he
       believed that the letter stated that Mr. Walker could
       negotiate a sentence of a 11 1/2 to 23 months of county
       time and he would be paroled forthwith so that he could go
       home and take care of his father. [King] testified that
       based on the information supplied to him by Mr. Walker, it
       was guaranteed he would get 11 1/2 to 23 months and
       that was the reason that he pleaded guilty. [King] testified
       that at the time of the guilty plea he stated that the reason
       he took the plea was that he was getting 11 1/2 to 23
       months.     [King] further testified that when given an
       opportunity to speak to counsel at the sentencing hearing
       he was trying to explain that one of the charges against
       him should have been dismissed and that he had
       paperwork showing that it had been dismissed,
       presumably at the preliminary hearing. [King] indicated
       further that when speaking to counsel that Mr. Walker
       suggested that he should withdraw from the case at the
       sentencing, but [King] did not really know what Mr. Walker
       was going to do. He testified that Mr. Walker never
       explained to him that the 11 1/2 to 23 months was not a
       promise. [King] testified that he did not explain the
       situation to the Court because Mr. Walker told him not to
       say anything and that every time that he tried to talk the
       Court reprimanded him and instructed him to talk with Mr.
       Walker. [King] testified that he would have never taken
       the plea if he knew that he was going to be sent to a state
       prison.
              1
                The letter of October 23, 2013 from Attorney
              Walker to [King] states in pertinent part: “As
              you know, your case was postponed until
              December 17, 2013 in order to have a
              representative from the probation office
              present to address your possible detainer issue
              and address your sentence. In is my intent
              to request a county sentence and that the
              judge take no further action on the
              detainer. I will also request that you be
              paroled forthwith.”




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          Attorney Walker testified at the PCRA hearing that he
       never guaranteed or promised that [King] would get a
       county sentence. In relation to the letter of October 23,
       2013, he testified that:

              “It was my attempt to inform him what my
              intentions were going to be at sentencing,
              because he was asking what is going to
              happen at sentencing. I said it is my intention
              to argue for a county sentence, because he did
              inform me about his father being sick, and I
              said I am going to ask for a county sentence,
              there are no guarantees, the guidelines are
              pretty high.”

       Attorney Walker denied promising that he would receive 11
       1/2 to 23 months indicating that he told [King]:

              “Just that his guidelines are pretty high, and
              my assessment of the discovery and my
              interactions with the officers on the case, that
              if he were to go to trial it was my estimation
              that he would probably be found guilty and if
              found guilty, we would no longer be able to be
              talking about a County sentence or mitigate it.
              It would probably be in the middle or higher
              range of the standard sentence.”

       Attorney Walker recalled [King] stating at the sentencing
       hearing that the only reason that he took the plea was
       because he was going to get 11 1/2 to 23 months. When
       instructed to talk to his client, Attorney Walker indicated
       that:

              “I went over the same thing I just spoke
              about. I said, listen, I can ask the Court to
              withdraw the plea, we can ask for a new
              court and go to trial. There is a chance he
              would say no since you have already plead
              guilty, but at this point we are at the
              sentencing phase and you have already
              accepted responsibility for your actions. If we
              go to trial, like I told you in the beginning, you
              would probably be found guilty, and it is


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               totally your choice, let me know what you
               want to do.” (Emphasis added)

            Attorney Walker indicated that [King] then told him to
         “go ahead” and did not instruct him to request to withdraw
         the guilty plea. Counsel also denied that [King] wanted
         him to withdraw as counsel or that he told [King] that he
         would withdraw as counsel. After consideration of all of
         the evidence an order was entered on December 17, 2015
         dismissing the PCRA petition. [King] filed a timely appeal.

PCRA Ct. Op., 7/13/16, at 1-5 (citations omitted, emphasis in original).

      On February 23, 2016, the PCRA court ordered King to file within 21

days a concise statement of matters complained of on appeal pursuant to

Pennsylvania Rule of Appellate Procedure 1925(b). On March 10, 2016, King

filed a Rule 1925(b) statement. Thereafter, on August 5, 2016, King’s PCRA

counsel filed a motion to withdraw from representation and a no-merit letter.

      Before we may address the merits of King’s appeal, we must

determine whether his PCRA counsel has satisfied the requirements for

withdrawal under Turner/Finley. Counsel must

         file a “no-merit” letter detailing the nature and extent of
         his review and list[ing] each issue the petitioner wishes to
         have examined, explaining why those issues are meritless.
         The PCRA court, or an appellate court if the no-merit letter
         is filed before it, then must conduct its own independent
         evaluation of the record and agree with counsel that the
         petition is without merit.

Commonwealth v. Rykard, 55 A.3d 1177, 1184 (Pa.Super. 2012) (internal

citation omitted). Counsel also must serve copies of the petition to withdraw

and no-merit letter on the petitioner and advise the petitioner that he or she




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has the right to proceed pro se or with privately retained counsel.

Commonwealth v. Widgins, 29 A.3d 816, 818 (Pa.Super. 2011).

      In his no-merit letter, PCRA counsel states that he reviewed the

record. Also in the letter, PCRA counsel identifies the issue that King wishes

to raise and explains why the issue is meritless. PCRA counsel also mailed a

copy of the petition and no-merit letter to King and informed King of his

right to withdraw the appeal, to retain private counsel, or to proceed without

counsel. We conclude that PCRA counsel has complied with the dictates of

Turner/Finley.

      Because King did not file a pro se brief or a brief by private counsel,

we will address the merits of the one issue raised by PCRA counsel:

“Whether trial counsel gave ineffective assistance for inducing [King] into

pleading guilty by promising [King] that he would receive a county

sentence?” No-Merit Letter at 4.

      Our standard of review from the denial of PCRA relief “is limited to

examining whether the PCRA court’s determination is supported by the

evidence of record and whether it is free of legal error.” Commonwealth v.

Ousley, 21 A.3d 1238, 1242 (Pa.Super. 2011).         We will not disturb the

PCRA court’s factual findings “unless there is no support for [those] findings

in the certified record.” Commonwealth v. Melendez–Negron, 123 A.3d

1087, 1090 (Pa.Super. 2015).




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      When analyzing ineffectiveness claims, “[w]e begin . . . with the

presumption that counsel [was] effective.” Commonwealth v. Spotz, 18

A.3d 244, 259-60 (Pa. 2011).        “[T]he [petitioner] bears the burden of

proving ineffectiveness.” Commonwealth v. Ligons, 971 A.2d 1125, 1137

(Pa. 2009).     To overcome the presumption of effectiveness, a PCRA

petitioner must demonstrate 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.”

Id. “A claim of ineffectiveness will be denied if the petitioner’s evidence fails

to meet any of these prongs.” Id.

      King argues that prior counsel was ineffective for inducing him to plead

guilty by promising him that he would receive a sentence in county jail.

      The PCRA court found:

            In this case, there is no question that [King] and
         counsel discussed that a request would be made for a
         county sentence or that plea counsel made repeated
         requests that any sentence be structured so that [King]
         could remain in the county jail. In addition, there is no
         question that [King] hoped for a county sentence and that
         his hope for such a sentence may have been an important
         factor in his decision to enter his plea. However, the
         record simply does not support [King’s] contention that he
         was guaranteed or promised that he would receive a
         county sentence or that his plea was involuntary or
         unintelligent. The letter from counsel of October 23, 2013
         clearly does not guarantee or promise a county sentence
         and makes it clear that it was a request that would be
         ma[d]e and argued for. In addition, at the very beginning


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        of the plea proceeding, the record is clear that there was
        “no plea agreement.”

            Attorney Walker’s testimony that he did not guarantee
        or promise a county sentence to [King] is credible and
        consistent with his written communication with [King].
        Likewise, Attorney Walker’s testimony regarding their
        discussion and [King’s] decision to not make a request to
        withdraw his plea at the sentencing hearing, after [King]
        made the statement that he took the plea because he
        “understood” he was going to get a county sentence, is
        also credible. Although [King] may have been faced with a
        difficult choice once it was made known that he would not
        receive a county sentence, it is clear that he was given an
        opportunity to discuss it with counsel and counsel again
        advised him of the risks of going to trial versus continuing
        with the sentencing. Attorney Walker’s testimony that
        [King] told him to “go ahead” with the proceedings as
        opposed to requesting that the plea be withdrawn is
        credible. Contrary to the assertion that [King] was not
        given the opportunity to discuss the proceedings, [King]
        was given the opportunity to discuss with counsel
        proceeding [sic] when it was made clear that he would not
        receive a county sentence. In addition, [King] was given
        the opportunity to direct his question or request about the
        sentencing to the Court and at that time [King] raised only
        a question about the length of his probation. As noted
        above, although [King] may have hoped for a county
        sentence, the evidence supports the finding that he
        entered into a knowing, voluntary and intelligent plea that
        was not induced by a promise or guarantee that he would
        receive a county sentence.       There is no evidence to
        support the claim that counsel was ineffective and,
        therefore, the petition was appropriately denied.

PCRA Ct. Op. at 7 (citations omitted).      Because the record supports the

PCRA   court’s   credibility   determinations,   we   are   bound    by   them.

Commonwealth v. Dennis, 17 A.3d 297, 305 (Pa. 2011).                Accordingly,

King’s underlying substantive claim does not have arguable merit, and we




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need not address the remaining ineffectiveness prongs.   We conclude that

the PCRA court properly denied King’s PCRA petition.

     Order affirmed. Petition to withdraw granted.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/10/2017




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