J-S36015-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

MICHAEL WATKINS

                            Appellant                No. 2681 EDA 2016


                  Appeal from the PCRA Order August 15, 2014
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0015551-2010


BEFORE: PANELLA, J., OLSON, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY PANELLA, J.                           FILED AUGUST 25, 2017

       In 2012, Appellant Michael Watkins pled guilty to third-degree murder,

robbery, and conspiracy arising from allegations that he had shot Cornell

Fisher to death while trying to rob him. In this pro se appeal,1 filed nunc pro

tunc, Watkins challenges the dismissal of his timely, first petition pursuant to

the Post Conviction Relief Act (“PCRA”). He argues that he was entitled to a

hearing on his claims that, due to the actions of his attorney, he entered an

involuntary and unknowing guilty plea. We conclude that the PCRA court did

not err, and therefore affirm.

____________________________________________


1
  The PCRA court appointed counsel to represent Watkins in connection with
his PCRA petition. The PCRA court subsequently permitted counsel to
withdraw pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988),
and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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       While Watkins’s claims are of a relatively common variety, the path by

which this appeal reached this Court is anything but common. As the PCRA

court notes, the path is a tortuous one. A review of this path is necessary to

understand our resolution of this case.

       The PCRA court dismissed Watkins’s first, timely PCRA petition by

order entered August 15, 2014. Watkins filed an untimely notice of appeal,

and we quashed his appeal.

       Watkins subsequently filed a second PCRA petition asserting that his

appellate rights had been denied, as he did not receive timely notice of the

order dismissing his first petition. The PCRA court ultimately agreed with

Watkins, and granted him the right to file an appeal nunc pro tunc.

       Watkins filed a timely notice of appeal nunc pro tunc, but the notice

was rejected by the lower court prothonotary as untimely and returned to

Watkins unfiled.2 Watkins subsequently filed a third PCRA petition, which did

not address the Prothonotary’s rejection of his appeal. The PCRA court

dismissed this petition as untimely filed by order entered April 5, 2016.

       Watkins filed a timely notice of appeal from the dismissal of his third

PCRA petition. However, this notice was also rejected by the prothonotary,



____________________________________________


2
  As the PCRA court recognized, the Prothonotary was not empowered to
take this action. See, e.g., Commonwealth v. Willis, 29 A.3d 393, 396
(Pa. Super. 2011).



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as the prothonotary mistakenly believed that Watkins was attempting to re-

file a previous appeal.

      In   response,      Watkins   filed   a   fourth   PCRA   petition,   seeking

reinstatement of his right to appeal from the dismissal of his first PCRA

petition. Given the odd procedural history of the case, the PCRA court once

again granted Watkins the right to appeal from the dismissal of his first

PCRA petition. This timely, nunc pro tunc appeal followed.

      Turning to the merits of the issues raised by Watkins on appeal, we

note that our review of the PCRA court’s dismissal of Watkins’s first PCRA

petition starts with whether the court’s findings are supported by the record.

See Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012). In

doing so, we read the record in the light most favorable to the prevailing

party. See id. If this review reveals support for the PCRA court’s credibility

determinations and other findings, we may                not disturb them. See

Commonwealth v. Santiago, 855 A.2d 682, 694 (Pa. 2004).

      All of Watkins’s issues presented on appeal allege that plea counsel

provided ineffective assistance. “A criminal defendant has the right to

effective counsel during a plea process….”        Commonwealth v. Hickman,

799 A. 2d 136, 141 (Pa. Super. 2002). A claim challenging the effectiveness

of plea counsel is cognizable under the PCRA. See 42 Pa.C.S.A. §

9543(a)(2)(ii).




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      Counsel is presumed to be effective, and Watkins has the burden of

proving otherwise. See Commonwealth v. Pond, 846 A.2d 699, 708 (Pa.

Super. 2004).

      In order for [an a]ppellant to prevail on a claim of ineffective
      assistance of counsel, he must show, by a preponderance of the
      evidence, ineffective assistance of counsel which, in the
      circumstances of the particular case, so undermined the truth-
      determining process that no reliable adjudication of guilt or
      innocence could have taken place. [An a]ppellant must
      demonstrate: (1) the underlying claim is of arguable merit; (2)
      that counsel had no reasonable strategic basis for his or her
      action or inaction; and (3) but for the errors and omissions of
      counsel, there is a reasonable probability that the outcome of
      the proceedings would have been different. The petitioner bears
      the burden of proving all three prongs of the test.

Commonwealth v. Johnson, 868 A.2d 1278, 1281 (Pa. Super. 2005)

(citations omitted). Failure to satisfy any one prong of this test causes the

entire claim to fail. See Commonwealth v. Hull, 982 A.2d 1020, 1023 (Pa.

Super. 2009).

      We review allegations of counsel’s ineffectiveness in connection with a

guilty plea as follows.

      The standard for post-sentence withdrawal of guilty pleas
      dovetails with the arguable merit/prejudice requirements for
      relief based on a claim of ineffective assistance of plea counsel
      under which 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)

(citations omitted). “This standard is equivalent to the ‘manifest injustice’

standard applicable to all post-sentence motions to withdraw a guilty plea.”

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Id. (citation omitted). “To succeed in showing prejudice, the defendant must

show that it is reasonably probable that, but for counsel’s errors, he would

not have pleaded guilty and would have gone to trial.” Commonwealth v.

Hickman, 799 A. 2d 136, 141 (Pa. Super. 2002).

      In addition, with respect to guilty pleas,

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

                           *       *         *

      The long standing 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. Pollard, 832 A.2d 517, 523-24 (Pa. Super. 2003)

(citations omitted).

      Watkins first claims that his plea counsel coerced him into pleading

guilty by telling him that he would receive a lifetime sentence if he did not.

However, Watkins testified at his guilty plea that there were no “other

promises, [or] threats that [] have not [been] disclosed [] on the record.”


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N.T., Guilty Plea Hearing, 4/3/12, at 33. He further testified that he was

satisfied with his plea counsel. See id.

      Watkins is bound by this testimony. See Commonwealth v. Willis,

68 A.3d 997, 1009 (Pa. Super. 2013); Pollard. He may not now argue that

this testimony was false in attempting to establish that his plea was

involuntary. He argues that he had raised this issue earlier in the plea

hearing, and the record supports his assertion. However, this does not alter

the fact that he subsequently stated that he had not been coerced or

threatened in any way. Watkins’s first issue on appeal merits no relief.

      Watkins next asserts that plea counsel was ineffective in failing to

object when the trial court failed to inform him of the elements of first- and

second-degree murder during his guilty plea colloquy. Thus, Watkins’s

argument is premised upon the bizarre belief that the trial court was

required to discuss the nature of charges that were not pending.

      Watkins’s argument is contrary to Pennsylvania law. The Rules of

Criminal Procedure require the court to ascertain whether the defendant is

aware of the nature of only the charges to which he is pleading guilty. See

Pa.R.Crim.P. 590(c)(1). The case law cited by Watkins does not contradict

this conclusion. See Commonwealth v. Willis, 369 A.2d 1189, 1190 (Pa.

1977) (reversing guilty plea because the trial court did not instruct the

defendant on the presumption of innocence); Commonwealth v. Dillbeck,




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353 A.2d 824 (Pa. 1976) (reversing guilty plea to murder, generally,

because the trial court had failed to explain the concept of malice).

      The trial court was not required to inform Watkins of the elements of

first- and second-degree murder—he was not pleading guilty to those

crimes. Nor, in distinction from Dillbeck, was he pleading guilty to murder

generally. He pled guilty to third-degree murder, and this was the only crime

that the trial court was required to ensure he understood. Watkins was not

entitled to any information about first- and second-degree murder. His

second argument on appeal merits no relief.

      Next, he contends that plea counsel was ineffective in failing to inform

him that his right to a speedy trial had been violated prior to the guilty plea.

The PCRA court found that Watkins had not raised this issue in his first PCRA

petition. We agree. It is therefore waived for purposes of appeal. See

Commonwealth v. Rigg, 84 A.3d 1080, 1084 (Pa. Super. 2014) (finding

claim not contained in PCRA petition waived for purposes of appeal).

      Watkins attempts to avoid this result by seizing upon an error in the

PCRA court’s recitation of the procedural history of Watkins’s attempts to

appeal from the dismissal of his first petition. In laying out the tortuous

procedural history of this case, the PCRA court mistakenly describes

Watkins’s third PCRA as “simply reasserting the same claims from” his first

petition. Through this statement, Watkins attempts to bootstrap language

from his third petition onto his first petition.


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       This attempt is unavailing. A comparison of Watkins’s first and third

petitions reveals that the PCRA court’s description is erroneous. Watkins

clearly raised new issues in his third petition, including his argument that his

rights to a speedy trial had been violated. Even a generous reading of his

first petition does not suggest that he was raising a claim that his speedy

trial rights had been violated.

       The PCRA court’s mistaken description of Watkins’s third PCRA

petition,3 in its attempt to detail the procedural history of this appeal, does

not change the actual contents of Watkins’s first PCRA petition. That first

petition does not contain any reference to the claim now made by Watkins

on appeal. We therefore agree with the PCRA court that Watkins’s third issue

on appeal, regarding his speedy trial rights, is therefore waived.

       Next, Watkins claims that plea counsel was ineffective when he “failed

to investigate forensic samples/evidence collected from the crime scene[.]”

He once again attempts to avoid waiver of this issue by claiming that its

presence in his third petition automatically transported it to his first petition

due to the PCRA court’s erroneous description of the two petitions as

identical.   As   we    observed     above,    this   attempt   to   avoid   waiver   is

unsuccessful.


____________________________________________


3
 Watkins’s third PCRA petition was a separate action that was independent
of his first petition. Its dismissal is not before us.



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      A review of Watkins’s first petition reveals no language that even

arguably raises this issue. We find this claim waived, and Watkins is due no

relief on his fourth issue on appeal.

      Watkins concedes that his final claim, that the trial court was required

to inform him that he had a right to have a jury decide his degree of guilt if

he pled guilty to general murder, is meritless. See Appellant’s Brief, at 37.

We therefore need not reach this issue.

      As none of Watkins’s issues on appeal merit relief, we affirm the order

dismissing his first PCRA petition without a hearing.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/25/2017




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