J-S45023-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    TISEIM WILLIAMS                            :
                                               :
                       Appellant               :   No. 1859 EDA 2018

               Appeal from the PCRA Order Entered May 31, 2018
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-0000424-2016

BEFORE:      BENDER, P.J.E., MURRAY, J., and PELLEGRINI, J.*

MEMORANDUM BY MURRAY, J.:                              FILED AUGUST 28, 2019

        Tiseim Williams (Appellant) appeals pro se from the order dismissing his

petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A.

§§ 9541-9546. We affirm.

        The PCRA court detailed the pertinent facts and procedural history of

this case as follows:

           On November 22, 2015, [Appellant] and two other men decided
        to rob Jonathan Mervin while he was asleep in his car. [N.T.,
        10/27/16, at 16-17]. During the course of the robbery, the victim
        was shot five times and died as a result of his wounds. Id. at 17.
        Later, [Appellant] gave a statement to police admitting that he
        participated in the robbery, but only as a lookout. Id. One of the
        co-conspirators told police that [Appellant] was the one who shot
        the victim.     Id.   The murder weapon was recovered and
        [Appellant’s] DNA was found on the weapon, though police were
        told the gun was passed between several people before the
        robbery occurred. Id. at 17-18.

____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
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        On November 22, 2015, [Appellant] was arrested and charged
     with the shooting death of Mr. Mervin. . . . [Appellant] agreed to
     plead guilty to one count of third-degree murder, one count of
     conspiracy, and one count of robbery.          In exchange, the
     Commonwealth agreed to recommend a sentence of 30 [to] 60
     years [of] incarceration. The negotiated sentence for each charge
     was as follows: 1) 20-40 years on the charge of third-degree
     murder; 2) 10-20 years on the charge of conspiracy, consecutive
     to the murder charge; and 3) 10-20 [years] on the charge of
     robbery, concurrent to the murder charge. Id. at 3-4.

        On October 27, 2016, this matter was listed before [the trial
     court] in order for [Appellant] to plead guilty and be sentenced.
     Id. . . . Before [Appellant] pled guilty to the charges, the [trial
     court] asked if he read and reviewed the Written Guilty Plea
     Colloquy form with his attorney. Id. at 5-7. [Appellant] stated
     that he read and understood the document, that he understood
     the terms of the guilty plea, and that he signed the document.
     Id. The [trial court] then conducted a colloquy which, inter alia,
     advised [Appellant] that he was not required to plead guilty, he
     had the absolute right to a trial, and by accepting the guilty plea
     he gave up the rights he would have if the matter went to trial, as
     well as most of his appeal rights. Id. at 7-11. [Appellant] stated
     that he understood that: 1) he did not have to plead guilty; 2) he
     had a right to a trial; and 3) by pleading guilty he gave up the
     rights he would otherwise have if the case went to trial. Id. at
     11-12. Finally, [Appellant] stated that he wished to accept the
     negotiated guilty plea. Id. The Court asked if his decision to
     plead guilty was made voluntarily. Id. at 14. [Appellant] stated
     that his decision to plead guilty was voluntary and made of his
     own free will. Id.

        The Commonwealth explained the elements of the offenses the
     Appellant was charged with committing, as well as the maximum
     penalty and fine each charge carried. Id. at 12-15. The
     Commonwealth presented a summary of the facts in the case. Id.
     at 16-18.     [Appellant] acknowledged the summary of facts
     accurately reflected what happened and based upon the facts he
     was prepared to plead guilty to the charges.          Id. at 19.
     [Appellant] stated that, except for the terms of the negotiation,
     no one offered him anything in exchange for his guilty plea and
     no one threatened him in order to force him to plead guilty. Id.
     [Appellant] stated that he was making the decision to plead guilty
     voluntarily and of his own free will. Id.

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        [Appellant] was arraigned and pled guilty to one count of third-
     degree murder, one count of conspiracy to commit robbery, and
     one count of robbery. Id. at 20-21. [Appellant] waived a
     presentence investigation and a mental health evaluation. Id. at
     22. . . . [The trial court] sentenced [Appellant] in accordance with
     the negotiated guilty plea. Id. at 41-42. [Appellant] was advised
     of his post-sentence and appeal rights. Id. at 42-45.

        [Appellant] did not file a post-sentence motion or a direct
     appeal. On September 28, 2017, [Appellant] filed a timely pro se
     PCRA petition, seeking release from custody and discharge
     because: 1) [the trial court] did not have jurisdiction over this
     matter; 2) the sentence was illegal; 3) ineffective assistance of
     counsel; and 4) he did not enter the negotiated plea deal
     voluntarily or knowingly.

         [PCRA Counsel] was appointed . . . for [Appellant] on
     December 11, 2017. On February 20, 2018, [PCRA] counsel filed
     a motion to withdraw as counsel and a no merit letter pursuant to
     [Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
     Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en
     banc),] which only addressed [Appellant]’s ineffective assistance
     of counsel and voluntariness of the plea agreement claims. On
     April 18, 2018, counsel filed an amended no merit letter which
     addressed [Appellant]’s jurisdictional and illegal sentence claims.
     On April 26, 2018, after an independent review, [the PCRA court]
     filed, and sent via certified mail to [Appellant], a “Notice of Intent
     to Dismiss Pursuant to Pennsylvania Rule of Criminal Procedure
     907” (“907 Notice”). [The PCRA court] found that all claims
     asserted by [Appellant] were without merit.

        On May 3, 2018, [Appellant] sent a response to the 907 Notice,
     asserting that his PCRA counsel was ineffective.            After
     consideration of [Appellant’s] response and further finding his
     claims lacked merit, [the PCRA court] formally dismissed this
     matter and granted [PCRA] counsel’s motion to withdraw on May
     16, 2018 pursuant to Pa.R.Crim.P. [] 907.

        [Appellant] filed a “Notice of Appeal,” pro se, pursuant to
     Pa.R.A.P. 905, on June 12, 2018. [The PCRA court] ordered
     [Appellant] to file a concise statement of matter[s] raised on
     appeal, pursuant to Pa.R.A.P. 1925(b), on June 26, 2018.
     [Appellant filed] his “Statement of Matters Complained of on

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      Appeal Pursuant to Pennsylvania Rule of Appellate Procedure
      1925” (“1925(b) Statement”) on August 20, 2018.

PCRA Court Opinion, 8/24/18, at 2-6 (footnote omitted).

      Appellant presents a single issue for our review:

      Whether the [PCRA] court erred in denying [Appellant’s] PCRA
      petition deeming his guilty plea as knowingly[,] intelligently[,]
      and voluntar[ily] entered.

Appellant’s Brief at 6 (unnumbered).

      We review the denial of PCRA relief by “examining whether the PCRA

court’s findings of fact are supported by the record, and whether its

conclusions of law are free from legal error.” Commonwealth v. Busanet,

54 A.3d 35, 45 (Pa. 2012). “Our scope of review is limited to the findings of

the PCRA court and the evidence of record, viewed in the light most favorable

to the party who prevailed in the PCRA court proceeding.” Id.

      Appellant’s sole issue on appeal challenges Plea Counsel’s effectiveness

in relation to Appellant’s guilty plea.   In deciding ineffective assistance of

counsel claims, we begin with the presumption that counsel rendered effective

assistance. Commonwealth v. Bomar, 104 A.3d 1179, 1188 (Pa. 2014).

To overcome that presumption, the petitioner must establish:              “(1) the

underlying claim has arguable merit; (2) no reasonable basis existed for

counsel’s action or failure to act; and (3) the petitioner suffered prejudice as

a result of counsel’s error, with prejudice measured by whether there is a

reasonable probability that the result of the proceeding would have been

different.” Id. (citation omitted). To demonstrate prejudice in an ineffective

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assistance of counsel claim, “the petitioner must show that there is a

reasonable probability that, but for counsel’s unprofessional errors, the result

of the proceeding would have been different.” Commonwealth v. King, 57

A.3d 607, 613 (Pa. 2012). If the petitioner fails to prove any of these prongs,

the claim is subject to dismissal. Bomar, 104 A.3d at 1188.

      “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.

Moser, 921 A.2d 526, 531 (Pa. Super. 2007) (quotations and citation

omitted). “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.”                Id.

(quotations and citations omitted).       “Thus, to establish prejudice, the

defendant must show that there is a reasonable probability that, but for

counsel’s errors, he would not have pleaded guilty and would have insisted on

going to trial.” Commonwealth v. Barndt, 74 A.3d 185, 192 (Pa. Super.

2013) (quotations and citations omitted). “The reasonable probability test is

not a stringent one; it merely refers to a probability sufficient to undermine

confidence in the outcome.” Id. (quotations and citations omitted).

      With respect to valid guilty pleas, this Court has explained:

      A valid guilty plea must be knowingly, voluntarily and intelligently
      entered. The Pennsylvania Rules of Criminal Procedure mandate
      that pleas be taken in open court, and require the court to conduct
      an on-the-record colloquy to ascertain whether a defendant is

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      aware of his rights and the consequences of his plea. Specifically,
      the court must affirmatively demonstrate the defendant
      understands: (1) the nature of the charges to which he is pleading
      guilty; (2) the factual basis for the plea; (3) his right to trial by
      jury; (4) the presumption of innocence; (5) the permissible ranges
      of sentences and fines possible; and (6) that the court is not
      bound by the terms of the agreement unless the court accepts the
      agreement. This Court will evaluate the adequacy of the plea
      colloquy and the voluntariness of the resulting plea by examining
      the totality of the circumstances surrounding the entry of that
      plea.

Commonwealth v. Kelley, 136 A.3d 1007, 1013 (Pa. Super. 2016) (citations

omitted); see also Pa.R.Crim.P. 590.

      Appellant argues that Plea Counsel was ineffective because he informed

Appellant that the negotiated sentence was 15 to 30 years of incarceration

when the trial court ultimately sentenced Appellant to 30 to 60 years of

incarceration. Appellant asserts that Plea Counsel’s ineffectiveness resulted

in a guilty plea that was not knowing, voluntary, or intelligent because he

would not have pled guilty if he knew he was going to receive the 30 to 60

year-sentence.

      There is no record support for Appellant’s claim. As recounted by the

PCRA court, Appellant received an extensive colloquy at his guilty plea

hearing, during which the court informed Appellant of the nature of the

charges to which he pled, the factual basis for the plea, his right to a jury trial,

the presumption of innocence, and the permissible ranges of sentences and

fines. N.T., 10/27/16, at 5-20. Additionally, at the outset of the hearing, the

trial court explicitly stated that the negotiated sentence Appellant would


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receive was 30 to 60 years of incarceration.     Id. at 4.   Appellant did not

express any misunderstanding regarding his sentence. See id. at 15, 19. It

is well settled that “[a] person who elects to plead guilty is bound by the

statements he makes in open court while under oath and he may not later

assert grounds for withdrawing the plea which contradict the statements he

made at his plea colloquy.” Commonwealth v. Pier, 182 A.3d 476, 480 (Pa.

Super. 2018) (quotations and citations omitted). Thus, not only did the trial

court engage Appellant in an extensive guilty plea colloquy which covered all

of the factors set forth in Kelley, but the court expressly informed him of the

terms of the negotiated sentence.

      Further, the record contains no evidence that Appellant ever received

an offer of 15 to 30 years of incarceration.    See Turner/Finley No-Merit

Letter, 2/20/18. In sum, there is no record support for Appellant’s claim that

he entered his guilty plea based on the improper advice of Plea Counsel.

Therefore, the PCRA court correctly determined that Appellant’s guilty plea

was knowing, voluntary, and intelligent. See Kelley, 136 A.3d at 1013; see

also Pa.R.Crim.P. 590. Accordingly, we conclude that Appellant’s ineffective

assistance of counsel claim is meritless, and the PCRA court did not abuse its

discretion in dismissing Appellant’s PCRA petition. See Bomar, 104 A.3d at

1188; Barndt, 74 A.3d at 192.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/28/19




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