J-S18045-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA                :   IN THE SUPERIOR COURT OF
                                             :        PENNSYLVANIA
                                             :
                 v.                          :
                                             :
                                             :
 RYAN HARDING                                :
                                             :
                         Appellant           :   No. 1593 MDA 2018

          Appeal from the PCRA Order Entered August 28, 2018
 In the Court of Common Pleas of Lackawanna County Criminal Division at
                    No(s): CP-35-CR-0001885-2013


BEFORE:    BOWES, J., NICHOLS, J., and STEVENS*, P.J.E.

MEMORANDUM BY STEVENS, P.J.E.:                           FILED MAY 28, 2019

      Appellant Ryan Harding files this pro se appeal from the order of the

Court of Common Pleas of Lackawanna County denying his petition filed under

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

careful review, we affirm.

      On July 28, 2014, Appellant pled guilty to third-degree murder (18

Pa.C.S.A. § 2502(c)) and firearms not to be carried without a license (18

Pa.C.S.A. § 6106) in connection with the May 5, 2013 shooting death of

Rashan Crowder. On November 5, 2014, the trial court sentenced Appellant

to 20 to 40 years’ imprisonment for the murder conviction and 3½ to 7 years’

imprisonment for the firearms conviction.         As the sentences were run

consecutively, Appellant received an aggregate sentence of 23½ to 47 years’

incarceration.        On February 1, 2016, this Court affirmed the judgment of



____________________________________
* Former Justice specially assigned to the Superior Court.
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sentence, and on July 6, 2016, the Supreme Court denied Appellant’s petition

for allowance of appeal.

      On June 13, 2017, Appellant filed a PCRA petition.         The PCRA court

appointed Appellant counsel, who subsequently sought to withdraw his

representation pursuant to Commonwealth v. Turner, 518 Pa. 491, 544

A.2d 927 (1988) and Commonwealth v. Finley, 550 A.2d 213 (Pa.Super.

1988). On September 22, 2017, Appellant submitted a pro se filing seeking

to amend his claims. On January 22, 2018, Appellant filed a Petition for Leave

to file Post-Submission to Amend to raise additional claims for collateral relief.

      On July 19, 2018, the PCRA court filed an order, giving notice of its

intent to dismiss Appellant’s petition without a hearing, setting forth its

determination that the petition was devoid of merit, and granting PCRA

counsel permission to withdraw his representation. Appellant did not respond

to the Rule 907 notice. In an order entered August 28, 2018, the PCRA court

dismissed Appellant’s petition. This timely pro se appeal followed.

      Appellant raises the following issues for our review, verbatim:

      A. Appellant contends plea agreement was induced involuntarily,
         unintelligently, unknowingly based upon trial counsel’s misled
         Appellant into belief counsel negotiated plea agreement that if
         accepted Appellant would receive a sentence of 15 yrs to 30
         yrs.

      B. Appellant contends he was abandoned by PCRA counsel.

      C. Trial Counsel was ineffective for failure to object to and/or raise
         preserve illegal consecutive sentence, manifestly excessive in
         violation of double jeopardy clause.



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      D. Appellant contends trial counsel was ineffective for failure to
         object to and/or raise/preserve sentence enhancement/gravity
         score (five) based upon prior juvenile adjudications.

Appellant’s Brief, at 4.

      Our standard of review is as follows:

      When reviewing the denial of a PCRA petition, we must determine
      whether the PCRA court's order is supported by the record and
      free of legal error. Generally, we are bound by a PCRA court's
      credibility determinations. However, with regard to a court's legal
      conclusions, we apply a de novo standard.

Commonwealth v. Johnson, 635 Pa. 665, 690, 139 A.3d 1257, 1272 (2016)

(quotation marks and quotations omitted).

      Appellant’s claims involve allegations of the ineffectiveness of his

counsel. In reviewing a claim of the ineffectiveness of counsel, we are guided

by the following principles:

      It is well-established that counsel is presumed to have provided
      effective representation unless the PCRA petitioner pleads and
      proves all of the following: (1) the underlying legal claim is of
      arguable merit; (2) counsel's action or inaction lacked any
      objectively reasonable basis designed to effectuate his client's
      interest; and (3) prejudice, to the effect that there was a
      reasonable probability of a different outcome if not for counsel's
      error. See Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d
      973, 975–76 (1987); Strickland v. Washington, 466 U.S. 668,
      104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The PCRA court may
      deny an ineffectiveness claim if “the petitioner's evidence fails to
      meet a single one of these prongs.”           Commonwealth v.
      Basemore, 560 Pa. 258, 744 A.2d 717, 738 n.23 (2000)....
      Because courts must presume that counsel was effective, it is the
      petitioner's burden to prove otherwise. See Pierce, supra;
      Commonwealth v. Holloway, 559 Pa. 258, 739 A.2d 1039,
      1044 (1999).




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Commonwealth v. Johnson, 179 A.3d 1105, 1114 (Pa.Super. 2018)

(quoting Commonwealth v. Natividad, 595 Pa. 188, 207–208, 938 A.2d

310, 321 (2007)).

      With respect to ineffectiveness claims related to the entry of a guilty

plea, the following principles are applicable:

         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 (Pa.Super. 2012)
      (citations, quotation, and quotation marks omitted). “[T]he law
      does not require that [the defendant] be pleased with the outcome
      of his decision to enter a plea of guilty: All that is required is that
      [his] decision to plead guilty be knowingly, voluntarily, and
      intelligently made.” [Commonwealth v.] Anderson, 995 A.2d
      [1184, 1192 (Pa.Super. 2010)] (citations, quotation, and
      quotation marks omitted). Moreover, with regard to the prejudice
      prong, where an appellant has entered a guilty plea, the appellant
      must demonstrate “it is reasonably probable that, but for
      counsel's errors, he would not have pleaded guilty and would have
      gone to trial.” Commonwealth v. Rathfon, 899 A.2d 365, 370
      (Pa.Super. 2006) (quotation and quotation marks omitted).

Commonwealth v. Timchak, 69 A.3d 765, 769–70 (Pa.Super. 2013).

      First, Appellant argues that trial counsel unlawfully induced him into

entering an unknowing and involuntary guilty plea by allegedly promising

Appellant that he would receive a 15 to 30 year prison sentence in exchange

for pleading guilty.

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       In this case, the trial court conducted an extensive colloquy to ensure

that   Appellant   understood    the   terms,   effects,   conditions,   and   legal

consequences of his guilty plea agreement. The Court emphasized several

times the potential sentences Appellant could receive; Appellant specifically

stated he understood that the murder charge carried a maximum of forty

years’ imprisonment and the weapons charge carried a maximum of seven

years’ imprisonment. Plea Hearing, 7/28/14, at 10.

       In contradiction to Appellant’s instant claim that counsel had promised

him a lenient sentence, Appellant expressly agreed at his plea hearing that he

was entering an “open plea” as “no promises had been made to him with

regard to any sentences.”       Id. at 9.   Appellant subsequently denied that

anyone had “promised [him] anything, other than the open plea.” Id. at 28.

Appellant confirmed that the entry of his plea was a free and voluntary act

and indicated that he was satisfied with the representation of plea counsel.

       Upon reviewing the record of Appellant’s oral plea colloquy, we find that

there is ample evidence to show Appellant understood that there was no

agreement as to the particular sentence that he would receive, his open plea

left his sentence to the discretion of the trial court, and that he had not been

promised any particular sentence in exchange for entering an open plea. In

similar cases, this Court has held:

       Our law presumes that a defendant who enters a guilty plea was
       aware of what he was doing. He bears the burden of proving
       otherwise.



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      The longstanding rule of Pennsylvania law is that a defendant may
      not challenge his guilty plea by asserting that he lied while under
      oath, even if he avers that counsel induced the lies.

      A person who elects to plead guilty is bound by the statements he
      makes in open court while under oath and may not later assert
      grounds for withdrawing the plea which contradict the statements
      he made at his plea colloquy.

      [A] defendant who elects to plead guilty has a duty to answer
      questions truthfully. We [cannot] permit a defendant to postpone
      the final disposition of his case by lying to the court and later
      alleging that his lies were induced by the prompting of counsel.

Commonwealth v. Yeomans, 24 A.3d 1044, 1047 (Pa.Super. 2011)

(quoting Commonwealth v. Pollard, 832 A.2d 517, 523-24 (Pa.Super.

2003)). As such, Appellant is bound by the statements he made at his plea

colloquy. Thus, Appellant’s ineffectiveness claim based on his argument that

plea counsel promised him a lenient sentence fails.

      Second, Appellant argues that PCRA counsel abandoned him by filing a

petition to withdraw and a Turner-Finley no-merit letter. However, Appellant

did not challenge the trial court’s decision to allow counsel to withdraw in its

Rule 907 notice, but instead raises this claim on collateral appeal.        PCRA

counsel's ineffectiveness may not be raised for the first time on appeal.

Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa.Super. 2014) (citing

Commonwealth v. Ford, 44 A.3d 1190 (Pa.Super. 2012)).

      In Appellant’s third and fourth claims, Appellant argues that trial counsel

was ineffective for failing to raise challenges to the legality and discretionary

aspects of his sentence, claiming his sentence was manifestly excessive in

violation of double jeopardy principles. However, as Appellant attempts to


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raise these claims for the first time on appeal and did not present these

arguments in the lower court, these issues are waived. 42 Pa.C.S.A. § 9544

(providing that “an issue is waived if the petitioner could have raised it but

failed to do so before trial, at trial, during unitary review, on appeal or in a

prior state postconviction proceeding”).1

       For the foregoing reasons, we affirm the PCRA court’s decision to dismiss

Appellant’s petition.

       Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/28/2019




____________________________________________


1  Appellant did argue in his PCRA petition that the trial court erred in
considering his juvenile adjudications to enhance his adult gravity score. The
PCRA court pointed out that this issue was waived as Appellant could have
raised this claim on direct appeal. Appellant cannot now characterize this
claim on collateral appeal as an ineffectiveness claim as he did not do so in
his petition before the PCRA court. 42 Pa.C.S.A. § 9544.

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