J-S28008-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellee

                    v.

MARY KATE O’DONNELL

                         Appellant                   No. 909 WDA 2016


                  Appeal from the PCRA Order June 2, 2016
             In the Court of Common Pleas of Allegheny County
            Criminal Division at No(s): CP-02-CR-0008308-2013


BEFORE: OLSON, MOULTON and STRASSBURGER,* JJ.

MEMORANDUM BY OLSON, J.:                               FILED MAY 23, 2017

       Appellant, Mary Kate O’Donnell, appeals from the order entered on

June 2, 2016, denying relief on her petition filed pursuant to the Post

Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.

       We briefly summarize the facts and procedural history of this case as

follows.   On May 8, 2013, police responded to a residential stabbing in

Stowe Township, Pennsylvania.        The victim suffered a stab wound to his

abdomen. His heart stopped twice en route to the hospital, where he spent

the next 15 days recovering. The victim underwent multiple surgeries for a

broken jaw caused by a fall after the stabbing and now uses a colostomy

bag.   Upon investigation, police determined that Appellant and the victim

had a tumultuous domestic relationship and that Appellant was the




* Retired Senior Judge assigned to the Superior Court.
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perpetrator.     The Commonwealth charged Appellant with criminal attempt

homicide and aggravated assault.1

       On February 18, 2014, Appellant entered into a negotiated guilty plea

wherein she agreed to plead guilty to aggravated assault and, in exchange,

the Commonwealth withdrew the attempted homicide charge.               The trial

court accepted the plea and sentenced Appellant to three to eight years of

incarceration followed by three years of probation. Appellant did not appeal

that decision.

       On February 22, 2015, Appellant filed a pro se PCRA petition.        The

PCRA court appointed counsel. On November 23, 2015, appointed counsel

filed an amended PCRA petition. The PCRA court held an evidentiary hearing

on April 11, 2016.        On June 2, 2016, the PCRA court entered an order

denying Appellant relief. This timely appeal resulted.2

       On appeal, Appellant presents the following issues for our review:

         1. Whether the [PCRA] court erred in finding that
            Appellant’s trial counsel was not ineffective for failing to
            adequately explain the plea [agreement], and for failing
            to provide all of the evidence to [] Appellant prior to the
            plea of guilty.

____________________________________________


1
    18 Pa.C.S.A. §§ 2501/901 and 2702, respectively.
2
    On June 22, 2016, Appellant filed a notice of appeal. On July 14, 2016,
the PCRA court entered an order directing Appellant to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Appellant complied timely. On October 26, 2016, the PCRA court issued an
opinion pursuant to Pa.R.A.P. 1925(a).



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         2. Whether the [PCRA] court erred in finding that the guilty
            plea   was    not     unlawfully  induced,   where     the
            circumstances make it likely that [] Appellant pled guilty,
            and [] Appellant is innocent.

Appellant’s Brief at 8.

      Appellant’s issues are interrelated, so we will examine them together.

Appellant first claims that trial counsel was ineffective for failing to provide

her with “records of the blood alcohol content tests done on the victim, and

the medical records regarding the injuries to the victim.”     Id. at 14. She

claims “those medical records contradicted the victim’s [version of events] to

a sufficient degree that she would have proceeded to trial if she had the

records prior to the plea.”     Id.   Appellant also contends that it was “her

understanding that she was accepting a plea for three to six years [of

incarceration,]” but that “[a]fter filling out the [written plea] colloquy, the

offer was changed to three to eight years of incarceration.”          Id. at 15.

Appellant maintains that because of these actions by trial counsel, her plea

was involuntary, unknowing, and unintelligent. Id. at 15-16. She argues

“she wished to maintain her innocence and proceed to trial.” Id. at 17.

      We review the denial of a PCRA petition to determine whether the

record supports the PCRA court's findings and whether its order is otherwise

free of legal error.      Commonwealth v. Jarosz, 152 A.3d 344, 350 (Pa.

Super.   2016) (citation omitted).     “The 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 prevailing party at the trial level.”     Id.   Moreover,

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“[w]e    are   bound    by   the   PCRA   court's   credibility   determinations.”

Commonwealth v. Watley, 153 A.3d 1034, 1047 (Pa. Super. 2016)

(citation omitted).

        In analyzing claims of ineffective assistance of counsel,

          we presume that trial counsel was effective unless the PCRA
          petitioner proves otherwise. In order to succeed on a claim
          of ineffective assistance of counsel, Appellant must
          demonstrate (1) that the underlying claim is of arguable
          merit; (2) that counsel's performance lacked a reasonable
          basis; and (3) that the ineffectiveness of counsel caused the
          appellant prejudice. Where the underlying claim lacks
          arguable merit, counsel cannot be deemed ineffective for
          failing to raise it. Appellant bears the burden of proving
          each of these elements, and [her] failure to satisfy any
          prong of the ineffectiveness test requires rejection of the
          claim of ineffectiveness.

Commonwealth v. Jarosz, 152 A.3d at 350 (internal quotations, citations,

and original brackets omitted).       “In the context of a plea, a claim of

ineffectiveness may provide relief only if the alleged ineffectiveness caused

an involuntary or unknowing plea.” Commonwealth v. Orlando, 2017 WL

772767, at *5 (Pa. Super. 2017) (citation omitted).

        Here, the PCRA court determined:

          [Appellant] has failed to establish that her plea of guilty was
          unlawfully induced by the ineffective assistance of counsel.
          At [Appellant’s] evidentiary hearing, [trial counsel],
          Attorney Josh Roberts testified that he was reassigned to
          cover [Appellant’s] case, and that he met with [Appellant]
          and spoke to her several times prior to her plea. During
          these meetings, Attorney Roberts testified that [Appellant]
          had a discovery packet from her prior attorney, and never
          asked for additional discovery materials. Attorney Roberts
          further testified that when [Appellant] was offered a
          negotiated plea agreement of 3 ½ years to 7 years[’]

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        incarceration for aggravated assault, in exchange for the
        Commonwealth withdrawing the attempted homicide
        charge, [Appellant] requested a lower minimum sentence.
        Attorney Roberts was able to negotiate the same deal, for a
        sentence of 3 – 8 years [of imprisonment], which
        [Appellant] accepted. [Appellant] completed a written and
        oral colloquy, during which time she indicated to the [t]rial
        [c]ourt under oath that she was satisfied with her counsel’s
        representation, she had adequate time to discuss the case
        with him, that she understood the plea agreement, and that
        she was pleading guilty because she was in fact guilty.

        The [t]rial [c]ourt [found] the testimony of Attorney Roberts
        credible, and [found] that [Appellant] did not request any
        additional discovery, she had already received discovery
        from her prior counsel, and Attorney Roberts did not
        threaten or unlawfully induce [Appellant] to plead guilty.
        Additionally, [Appellant] failed to establish that her guilty
        plea was the result of manifest injustice. Rather, the record
        demonstrates that [Appellant] completed a written and oral
        colloquy, wherein she stated that she had not been
        threatened or promised anything to force her to plead
        guilty, and that she was pleading guilty because she was in
        fact guilty.    The record fully supports the entry of a
        knowing, intelligent, and voluntary plea. [Appellant’s] claim
        in this regard is without merit.

PCRA Court Opinion, 10/26/2016, at 7.

     Upon review, we discern no abuse of discretion in denying Appellant’s

PCRA petition.   The trial court found trial counsel’s testimony credible and

we will not usurp the trial court’s determination. Attorney Roberts testified

that “there were [] medical records that the Commonwealth had obtained

documenting the victim's injuries of the incident that night.”          N.T.,

4/11/2016, at 7.    When the case was reassigned to Attorney Roberts, he

was uncertain if he provided the medical records to Appellant, because she




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ostensibly    received   them     from   her   prior   attorney   during   discovery.

However, he testified that:

        I'm not sure if I gave her a copy of them, but I certainly
        went over them at the County Jail with her. [Appellant] was
        -- I had notes relating to the tox[icology] screen.

        [Appellant] had attempted -- or was trying to paint some
        picture that the victim in this case owed money to drug
        dealers for prescription pain killers, that he had some sort
        of opiate or Benzodiazepine problem. His tox[icology]
        screens came back negative for anything but alcohol.

        I do have notes from my jail visits with her in the file. I
        went over the fact that the tox[icology] screen was negative
        for anything other than alcohol, which there was no dispute
        that they were both drinking on the night of the incident.

        So I definitely went over the medical records with her.
        Whether or not I provided copies to her prior to trial I'm not
        sure. I do believe I provided her a copy later.

                              *          *             *

        […I]n grand total I probably spent five, six hours with her at
        the County Jail prior to the non-jury trial date that was
        scheduled prior to my handling of the case by [Appellant].
        Several hours.

Id. at 8-9.

      Appellant does not argue she was unaware of the content of the

victim’s medical records or that there were additional medical records that

she did not receive.     She also does not explain what information in the

medical records would have altered her decision to plead guilty.               Upon

review, trial counsel testified that he went over the victim’s medical records

with Appellant, and that toxicology reports showed no use of controlled


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substances. As such, Appellant has not pled and proven that the “medical

records contradicted the victim’s [version of events] to a sufficient degree

that she would have proceeded to trial if she had the records prior to the

plea” as she now claims.

      Regarding the negotiated sentence, the following exchange occurred

before the trial court accepted Appellant’s guilty plea:

        THE COURT: [Appellant], [case number] 201308308,
        present in court with [Attorney] Roberts. [Attorney William]
        Petulla is here on behalf of the Commonwealth. Is there an
        agreement between the parties as to the charges or
        sentencing, [Attorney] Petulla?

        PETULLA: There is. The Commonwealth moves to withdraw
        count one, criminal attempt. There is a plea to count two,
        aggravated assault, serious bodily injury. There is an
        agreement to three to eight years, probation to follow
        set by this Honorable Court to run consecutive to that
        sentence. I should note that the defendant is not RRRI
        eligible. This agreement was reached after extensive
        consultation with the family who did not wish to remain for
        the plea.

        THE COURT:       Is   that   your   understanding,   [Attorney]
        Roberts?

        ROBERTS: Yes, that is our understanding of the agreement.

        THE COURT: Is that your understanding, [Appellant]?

        [Appellant]: Yes.

        THE COURT: Are you clear-headed today?

        [Appellant]: Yes.

        THE COURT: Have you had enough time to speak to your
        attorney about the amendments of the crime and


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       aggravated assault and the maximum penalty that could
       have been imposed and the right to have a trial?

       [Appellant]: Yes, Your Honor.

       THE COURT: Are you satisfied with his representation?

       [Appellant]: Yes, Your Honor.

       THE COURT: Other than what he has negotiated on your
       behalf, what you have just heard 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 that of your attorney. Did
       you read and understand these questions?

       [Appellant]: Yes.

       THE COURT: Did you answer these questions honestly?

       [Appellant]: Yes, sir.

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

       [Appellant]: Yes, Your Honor.

       THE COURT: [Attorney] Roberts, based on your experience
       and contact with [Appellant] do you believe that she
       understands the elements of the crimes and the maximum
       penalty allowed by law and she is otherwise making a
       knowingly, intelligently, and voluntarily fully informed
       decision to plead guilty?

       ROBERTS: I do, Your Honor.

N.T., 2/18/2014, at 2-4 (emphasis added).




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        Based on the testimony above, we summarily reject Appellant’s

suggestion that she was deceived into accepting a sentence that was

increased unilaterally without her consent at the plea hearing. As the plea

hearing    transcription    reveals,   Appellant   was   clearly   apprised   of   the

negotiated sentence per the plea agreement with the Commonwealth prior

to entering her guilty plea. She agreed to the term of three to eight years of

imprisonment and is bound by her affirmation made under oath at the guilty

plea hearing.     See Commonwealth v. Willis, 68 A.3d 997, 1009 (Pa.

Super. 2013) (“Appellant is bound by these statements, which [s]he made in

open court while under oath, and [s]he may not now assert grounds for

withdrawing the plea which contradict the statements.”). If the negotiated

agreement was not as she understood it, Appellant had an opportunity to

correct it at the plea hearing. Now, however, she simply cannot assert that

she did not understand the plea agreement as a reason to withdraw her

plea.

        For all of the foregoing reasons, there is no merit to Appellant’s claims

that trial counsel provided ineffective assistance in representing Appellant at

her plea hearing.         Because Appellant’s claim that she did not enter a

voluntary or knowing plea hinges solely on counsel’s performance, which we

deem effective, we conclude that Appellant is not entitled to relief on her

claim that her guilty plea was unlawfully induced.

        Order affirmed.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/23/2017




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