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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

RAYMOND PENDLETON

                            Appellant                 No. 356 WDA 2015


                 Appeal from the PCRA Order January 30, 2015
              In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0003702-2012
                                          CP-02-CR-0012738-2012
                                          CP-02-CR-0015673-2013


BEFORE: GANTMAN, P.J., JENKINS, J., and PLATT, J.*

MEMORANDUM BY JENKINS, J.:                        FILED OCTOBER 30, 2015

        Appellant Raymond Pendleton appeals from the order of the Allegheny

County Court of Common Pleas denying his petition filed pursuant to the

Post Conviction Relief Act, 42 Pa.C.S. § 9541, et seq. We affirm.

        On September 20, 2012, at docket number CP-02-CR-0012738-2012

[hereinafter homicide docket], Appellant was charged by criminal complaint

with criminal homicide, robbery (inflict serious bodily injury), and criminal

conspiracy to commit robbery.1

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
  18 Pa.C.S. §§ 2502, 3701(a)(1)(i), and 903, respectfully. A conspiracy to
commit homicide charge was dismissed at the preliminary hearing.
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       On March 13, 2012, at docket number CP-02-CR-0003702-2012

[hereinafter firearm docket], Appellant was charged by criminal complaint

with persons not to possess firearm, firearms not to be carried without a

license, resisting arrest, and possession of a small amount of marijuana.2

       On June 10, 2013, at docket number CP-02-CR-0015673-2013

[hereinafter sexual assault docket], Appellant was charged by criminal

complaint with involuntary deviate sexual intercourse with a child, criminal

attempt – involuntary deviate sexual intercourse with a child, indecent

assault (complainant less than 13 years of age), endangering welfare of a

child by parent or guardian, corruption of minors, and indecent exposure.3

       On November 20, 2013, Appellant entered into a negotiated guilty plea

at the above-referenced docket numbers. At the time of the plea hearing,

Appellant had not been arraigned on the charges at the sexual assault

docket, but waived his right to an arraignment so that he could include the

charges at that docket number in his guilty plea. N.T., 11/20/2013, at 8.

       At the homicide docket, Appellant pled guilty to homicide in the third

degree, robbery, and conspiracy to commit robbery in exchange for an

agreed upon aggregate sentence of 22½ to 50 years’ incarceration.       N.T.,
____________________________________________


2
   18 Pa.C.S. §§ 6105, 6106, 5104, and 35 P.S. § 780-113(a)(31),
respectively.
3
  18 Pa.C.S. §§ 3123(b), 901, 3126(a)(7), 4304, 6301, 3127, respectfully.
The Commonwealth withdrew a rape of a child, 18 Pa.C.S. § 3121(c),
charge.



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11/20/2013, at 9-11. At the firearms docket, the Commonwealth withdrew

the persons not to possess a firearm count, and Appellant pled guilty to

carrying a firearm without a license, resisting arrest, and possession of a

small amount of marijuana. Id. Appellant and the Commonwealth agreed

that any sentence imposed at the firearm docket would run concurrent to

the sentence imposed at the homicide docket. Id.     As to the sexual assault

docket, Appellant pled guilty to involuntary deviate sexual intercourse with a

child, criminal attempt – involuntary deviate sexual intercourse with a child,

indecent assault (complainant less than 13 years of age), endangering

welfare of a child by parent or guardian, corruption of minors, and indecent

exposure. Id. The Commonwealth and Appellant agreed Appellant would be

sentenced to the mandatory minimum of 10 to 20 years’ incarceration for

involuntary deviate sexual intercourse, which would run concurrent to the

sentence imposed for the homicide charges. Id. Appellant agreed with the

summary of the plea agreement provided by the Commonwealth. Id. at 11.

      At the guilty plea hearing, the following exchange occurred:

         THE COURT: Are you clear-headed today, sir?

         [APPELLANT]: Yes.

         THE COURT: Have you had enough time to speak to your
         attorney about the elements of each crime to which you
         are pleading guilty, the maximum penalties that can be
         imposed individually and as an aggregate on each case
         and all the cases together?

         [APPELLANT]: Yes.

         THE COURT: Are you satisfied with her representation?


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       [APPELLANT]: Yes.

       THE COURT: Other than what she negotiated on your
       behalf, sir, what you heard just stated in open court, has
       anybody threatened or promised you anything to plead
       guilty?

       [APPELLANT]: No.

       THE COURT: I have in front of me a guilty plea colloquy
       that bears your signature as well as your lawyer’s.

       [APPELLANT]: Yes.

       THE COURT: Did you answer each question honestly?

       [APPELLANT]: Yes, sir.

       THE COURT: Was your attorney available in the event that
       you had any question about this document or any matter
       related to the case?

       [APPELLANT]: Yes.

       THE COURT: [Counsel], based on your experience and
       your contact with [Appellant], do you believe that he
       understands the elements of each crime, the maximum
       penalties allowed by law including the aggregate sentence
       that could be imposed on all of the counts, and that he is
       making a knowing, intelligent, and voluntary fully informed
       decision to plead guilty?

       [COUNSEL]: I do, Your Honor.

       THE COURT: Would the pleas violate any probation or
       parole existing?

       [COUNSEL]: Yes, Your Honor, with you, actually.

       THE COURT: Okay. Have you talked to him about that?
       Is he aware that he could face an additional penalty?

       [COUNSEL]: He is aware, Your Honor.

       THE COURT: Is that accurate, [Appellant]?

       [APPELLANT]: Yes.




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N.T., 11/20/2013, at 11-13. The Commonwealth then summarized the facts

for each docket number, and Appellant agreed with the factual summaries.

Id. at 13-21.    Appellant also signed a written guilty plea colloquy, and

confirmed the truthfulness of the written responses at the guilty plea

hearing.   Guilty Plea, Explanation of Defendant’s Rights at 1-11; N.T.,

11/20/2013, at 12.

      On November 20, 2013, the trial court sentenced Appellant.       At the

homicide docket, the court sentenced Appellant to 15 to 30 years’

incarceration for third-degree murder, 5 to 10 years’ incarceration for

robbery, and 2½ to 10 years’ incarceration for conspiracy, to run

consecutive to each other, for an aggregate sentence of 22½ to 50 years’

incarceration. N.T., 11/20/2013, at 23-24.

      At the sexual assault docket, the court sentenced Appellant to 10 to 20

years’ incarceration for involuntary sexual intercourse with a child, to run

concurrent to the sentences imposed at the homicide docket.              N.T.,

11/20/2013, 24.    The court imposed no further penalty for the remaining

convictions. Id. At the firearms docket, the court sentenced Appellant to 3

to 6 years’ incarceration for the persons not to possess a firearm conviction,

which was to run concurrent to the sentences imposed at the other two

docket numbers.    Id.   The court imposed no further penalty for the other

convictions at the firearms docket. Id.

      Appellant did not file post-sentence motions or a direct appeal.     On

March 11, 2014, Appellant filed a pro se PCRA petition. On March 17, 2014,

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the PCRA court appointed counsel.      On August 22, 2014, counsel filed an

amended PCRA petition. On November 21, 2014, the Commonwealth filed

an answer to the amended PCRA petition. On January 5, 2015, the PCRA

court issued a notice of intent to dismiss PCRA petition without a hearing

pursuant to Pennsylvania Rule of Criminal Procedure 907 and, on January

30, 2015, it denied the petition.

      Appellant filed a timely notice of appeal. The PCRA court did not order

Appellant to file a concise statement of errors complained of on appeal

pursuant to Pennsylvania Rule of Appellate Procedure 1925(b), and he did

not do so. On March 19, 2015, the PCRA court issued an order incorporating

its January 5, 2015 notice of intent to dismiss as its Rule 1925(a) statement.

      Appellant raises the following issues on appeal:

         1. Was [Appellant’s] claim for relief properly cognizable
         under the [PCRA]?

         2. Did the [trial] court abuse its discretion in denying the
         petition alleging counsel’s ineffectiveness without a
         hearing, where [Appellant] established the merits of the
         claim that [Appellant’s] guilty plea was not knowingly and
         voluntarily entered, but was unlawfully induced due to the
         ineffective assistance of trial counsel, insofar as counsel
         did not have sufficient time to prepare his cases for trial,
         failed to fully investigate and advise [Appellant] of possible
         defenses, and threatened [Appellant] that he would get life
         imprisonment if he did not enter a negotiated plea?

Appellant’s Brief at 4.     We agree with Appellant that his ineffective

assistance of counsel claims are cognizable on PCRA review and that he

timely filed his PCRA petition, as he filed it on March 11, 2014, within one

year of the date Appellant’s conviction became final on December 20, 2013,

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thirty days after the trial court entered his judgment of sentence. The trial

court, however, did not find Appellant’s claim non-cognizable and did not

find the PCRA petition untimely, but rather denied the PCRA petition as

meritless. Thus we shall address Appellant’s next claim.

       Appellant’s second issue maintains his plea was not knowingly and

voluntarily entered because his counsel was ineffective. We disagree.

       Our standard of review from the denial of post-conviction relief “is

limited to examining whether the 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   (Pa.Super.2011)    (citing     Commonwealth        v.

Morales, 701 A.2d 516, 520 (Pa.1997)).              Further, “a petitioner is not

entitled to a PCRA hearing as a matter of right; the PCRA court can decline

to hold a hearing if there is no genuine issue concerning any material fact

and the petitioner is not entitled to post-conviction collateral relief, and no

purpose would be served by any further proceedings.”               Commonwelth v.

Smith,       ---   A.3d   ---,   2015   Pa.Super.   173,      *1    (2015)    (quoting

Commonwealth v. Taylor, 933 A.2d 1035, 1040 (Pa.Super.2007)).

       For ineffective assistance of counsel claims, the petitioner must

establish:     “(1) that the underlying claim has merit; (2) counsel had no

reasonable strategic basis for his or her action or inaction; and (3) but for

the errors or omissions of counsel, there is a reasonable probability that the

outcome of the proceedings would have been different.” Ousley, 21 A.3d at

1244     (quoting    Commonwealth         v.   Rivera,     10      A.3d   1276,   1279

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(Pa.Super.2010)). “[C]ounsel is presumed to be effective and the burden of

demonstrating ineffectiveness rests on appellant.” Id. “The failure to prove

any one of the three [ineffectiveness] prongs results in the failure of

petitioner’s claim.” Id. (quoting Rivera, 10 A.3d at 1279).

      “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) (citing Commonwealth v.

Allen, 732 A.2d 582 (Pa.1999)). Whether a plea was voluntary “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) (quoting Hickman, 799 A.2d at 141).

      “[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. Willis, 68 A.3d 997, 1001 (Pa.Super.2013)

(quoting Commonwealth v. Anderson, 995 A.2d 1184, 1192 (Pa.Super.

2010) (alterations in original)).   A guilty plea colloquy must “affirmatively

demonstrate the defendant understood what the plea connoted and its

consequences.” Id. at 1002 (quoting Commonwealth v. Lewis, 708 A.2d

497, 501 (Pa.Super.1998)). After a defendant enters a guilty plea, “it is

presumed that he was aware of what he was doing, and the burden of




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proving involuntariness is upon him.”      Id. (quoting Commonwealth v.

Bedell, 954 A.2d 1209, 1212 (Pa.Super.2008)).

      Appellant maintains his guilty plea was not knowingly and voluntarily

entered because his counsel was ineffective.         Appellant’s Brief at 13.

Appellant claims that his counsel was ineffective as to the homicide docket

because his counsel: (1) did not have adequate time to prepare because she

had been appointed six months prior to trial and requested a postponement

a week before jury selection, (2) failed to inform Appellant that he could

obtain a verdict for less than third-degree murder, (3) did not discuss the

filing of a motion to suppress his statement to the police, and (4)

“threatened him that if he went to trial on the homicide charge, he would

receive a sentence of life imprisonment.” Appellant’s Brief at 16-17.

      Appellant claims his counsel was ineffective at the firearms docket

because counsel did not discuss the evidence with Appellant and did not

inform Appellant he could file a motion to suppress based on an alleged lack

of reasonable suspicion or probable cause. Appellant’s Brief at 17-19.

      Appellant claims counsel was ineffective at the sexual assault docket

because the charges had been held for court following a November 13, 2013

preliminary hearing and Appellant waived the arraignment at the guilty plea

hearing.   He claims counsel conducted no investigation, Appellant was not

provided discovery, and did not discuss the evidence with his counsel.

Appellant’s Brief at 19. Appellant further claims his counsel failed to discuss




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trial strategy with him, including a possible motion to dismiss for failure to

provide the dates of the alleged offenses. Id. at 20-21.

      The record, however, belies these claims.      On May 22, 2013, trial

counsel granted a motion to withdraw filed by Appellant’s previous counsel

and appointed new counsel. Appellant’s counsel entered her appearance on

May 30, 2013. On November 7, 2013, a week prior to the jury selection,

counsel requested a postponement of trial at the homicide docket because

she had not received, and therefore had not reviewed, the trial transcripts

for Appellant’s co-defendants, who had proceeded to trial on the homicide

charges.   Formal Motion for Postponement and/or Motion to Withdraw as

Counsel, 11/7/2013. At a November 18, 2013 status conference, however,

counsel indicated she had reviewed the transcripts and was prepared for

trial. N.T., 11/18/2013, at 2-3.

      In the written guilty plea colloquy, which includes charges for all three

dockets, Appellant stated his attorney reviewed with him the elements of

each charged offense, the factual basis for each charged offense, and the

maximum possible sentences. Appellant understood that if he went to trial

he would have had the right to challenge the evidence presented by the

Commonwealth and that he was abandoning the right to file any pretrial

motions or to assert any defenses. Guilty Plea, Explanation of Defendant’s

Rights, at 2, 4-5, 8. He further stated no one forced him to enter the plea,

he was pleading guilty of his own free will, and no one had made any threats

to coerce a plea or made any promises in exchange for the plea. Id. at 9.

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Appellant further stated he was satisfied with the legal advice and

representation of his attorney and had ample opportunity to consult with his

attorney prior to entering the plea, he was satisfied his attorney knew the

facts of the case, and was satisfied his attorney had enough time to check

any questions of fact or law. Id. at 10.

      Further, at the guilty plea hearing, Appellant confirmed he had enough

time to speak with his attorney about the elements of the crimes and the

maximum penalties, was satisfied with counsel’s representation, and no one

threatened or promised him anything to obtain his plea. He also confirmed

he truthfully answered the questions in the written guilty plea colloquy and

that his counsel was available to answer any questions regarding the written

guilty plea colloquy. N.T., 11/20/2013, at 11-12.

      Appellant is bound by the statements made during his guilty plea

proceedings, which he made and confirmed under oath, and he may not now

assert grounds for withdrawing the plea which contradict the statements.

Willis, 68 A.3d at 1009.      The oral and written colloquies demonstrate

Appellant understood what the plea connoted and its consequences and

Appellant has not established the plea was involuntary.    Further, because

there was no genuine issue of material fact and Appellant was not entitled to

PCRA relief, the PCRA court was not required to hold an evidentiary hearing.

See Smith, 2015 Pa.Super, at *1. Accordingly, the PCRA court did not err,

and will affirm the order denying Appellant’s PCRA petition without a

hearing.

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     Order affirmed.

     Judge Platt joins the memorandum.

     President Judge Gantman concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/30/2015




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