J-S66007-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                    Appellee             :
                                         :
              v.                         :
                                         :
 CHAD MARSHALL WILCOX                    :
                                         :
                    Appellant            :         No. 2016 EDA 2017

                  Appeal from the PCRA Order May 23, 2017
            In the Court of Common Pleas of Montgomery County
            Criminal Division at No(s): CP-46-CR-0008404-2014


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

MEMORANDUM BY GANTMAN, P.J.:                    FILED JANUARY 23, 2019

      Appellant, Chad Marshall Wilcox, appeals pro se from the order entered

in the Montgomery County Court of Common Pleas, which denied his timely,

first petition filed under the Post Conviction Relief Act (“PCRA”), at 42

Pa.C.S.A. 9541-9546. We affirm.

      The PCRA court opinion sets forth the relevant facts and procedural

history of this case as follows:

         I. FACTUAL       BACKGROUND         AND     PROCEDURAL
         HISTORY

         [Appellant] entered a negotiated guilty plea on May 11,
         2015, to one count of murder of the third degree in
         exchange for a sentence of 20 to 40 years in prison, one
         count of burglary in exchange for a consecutive sentence of
         10 to 20 years in prison and one count of robbery in
         exchange for a consecutive sentence of 10 to 20 years in
         prison.2   The Commonwealth agreed to withdraw an
         additional 13 counts, including murder of the first degree
         and murder of the second degree.
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              2All three offenses were graded as felonies of the first
              degree, punishable by up to 20 years in prison. See
              18 Pa.C.S. § 1103(1).[1]


          [Appellant] admitted as part of his plea agreement that he
          caused the death of Manuel Hakimian on September 21,
          2014, doing so with malice. (N.T., 5/11/15, p. 12). He
          further admitted that:

              on Saturday, September 20, 2014, [Appellant] was in
              Philadelphia when [he] began communicating via
              email with Mr. Hakimian after [he] answered an
              advertisement that Mr. Hakimian had placed on
              Craig’s List, which is a social medial Website.

              Mr. Hakimian’s advertisement was soliciting sexual
              encounters with other men. However, [Appellant’s]
              intention was to meet Mr. Hakimian for the purpose of
              robbing him.

              [Appellant] continued to communicate with Mr.
              Hakimian via e-mail and text messages on [his] cell
              phone. The two…agreed that Mr. Hakimian would
              drive to Philadelphia to meet [Appellant] at the
              Wyndham Hotel.

              In the early morning hours of Sunday, September 21,
              2014, Mr. Hakimian drove his Chevrolet Equinox to
              Philadelphia and picked [Appellant] up at the
              Wyndham Hotel.

              The two then traveled back to Mr. Hakimian’s home
              located at 302 East Logan Street, Norristown,
____________________________________________


1 Technically speaking, first degree felonies are generally punishable by up to
20 years in prison per 18 Pa.C.S.A. § 1103. Nevertheless, Section 1102(d)
states: “(d) Third degree.−Notwithstanding section 1103, a person who has
been convicted of murder of the third degree…shall be sentenced to a term
which shall be fixed by the court at not more than 40 years.” To the extent
the PCRA court’s footnote two is inconsistent with Section 1102(d) and the
agreed-upon sentence, we correct it here.

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          Montgomery County, for what Mr. Hakimian believed
          to be a consensual sexual encounter.

          After arriving at Mr. Hakimian’s home, the
          two…discussed the details of the sexual encounter.

          [Appellant] went to the basement of the house and
          cut off sections of a clothesline with a knife.

          [Appellant] and Mr. Hakimian then went to Mr.
          Hakimian’s second-floor bedroom where [Appellant]
          tied Mr. Hakimian’s wrists and ankles to the bed
          frame.

          At this point, [Appellant] cut Mr. Hakimian’s neck with
          a knife.

          [Appellant] then stole Mr. Hakimian’s wallet, car keys,
          Apple laptop computer, a tablet device, and two Apple
          cell phones.

          [Appellant] then went outside         and   stole   Mr.
          Hakimian’s Chevrolet Equinox.

          [Appellant] then fled to north Philadelphia where [he]
          traded the electronic devices for several bags of
          heroin.

          [Appellant] then fled in the Chevrolet Equinox
          southward through several states to Bowling Green,
          Kentucky, where [he was] involved in a vehicle pursuit
          with the police. [Appellant] abandoned the Equinox
          and escaped on foot.

          [Appellant] then made [his] way eventually to
          Nashville, Tennessee.

          During [his] trip south, [Appellant] used Mr.
          Hakimian’s debit and credit cards to make cash
          withdrawals and to purchase food and merchandise.

          [Appellant] later surrendered without incident to the
          United States Marshals on Sunday, September 28,
          2014, in North Carolina on an outstanding arrest

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              warrant from Lycoming County, Pennsylvania for [his]
              failure to appear for trial on September 15, 2014.

              Subsequently, on October 24, 2014, [Appellant was]
              arrested on these Montgomery County charges.

              On September 22, 2014, an autopsy was performed
              on Mr. Hakimian by Dr. Erica Williams, who
              determined that the cause of death was a cutting
              wound of the neck and that the manner of death was
              homicide.

              Lastly, [Appellant] acted alone in committing this
              murder, burglary and robbery. And [his] motive for
              doing this was to obtain money and items that could
              be used to purchase heroin to feed [his] addiction and
              also to obtain a vehicle in which [he] could flee from
              Pennsylvania.

          (Id. at 12-15).[2]

          [Appellant] did not file a post-sentence motion or a direct
          appeal, making his judgment of sentence final on or about
          June 11, 2015. Nearly a year later [Appellant] filed a pro
          se PCRA petition.3 He alleged plea counsel had rendered
          ineffective assistance by (1) leading him to believe DNA
          evidence linked him to the scene of the crime, (2) failing to
          review phone records with him and (3) failing to investigate
          his accounts of his out-of-court state incarceration during
          which he gave a statement to police. He also claimed he had
          not been informed that the Commonwealth had obtained
          materials to use as handwriting exemplars that allegedly
          should not have been in the Commonwealth’s possession.

              3 The petition was docketed May 11, 2016, and the
              enclosing envelopes appear to bear the post-mark of
              May 7, 2016.

          This court appointed PCRA counsel who eventually filed a
          “Memorandum of Law…,” a motion to withdraw as counsel,
____________________________________________


2 In additional to the oral colloquy, Appellant executed a written guilty plea
colloquy and was informed of his post-sentence and appellate rights.

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           and a no-merit letter advising [Appellant] that should this
           court grant the motion to withdraw, [Appellant] would be
           entitled to proceed by representing himself or with privately
           retained counsel.

           This court determined that the documents filed by PCRA
           counsel, when read together, substantially complied with
           the requirements of a [no-merit] letter and, after its own
           independent review of the record, gave defendant notice of
           its intent to dismiss the petition without a hearing.[3]
           Appellant filed a pro se opposition to the notice.

           This court reviewed the opposition and ultimately dismissed
           the PCRA petition by Order dated May 23, 2017. The
           Montgomery County Clerk of Courts docketed on June 23,
           2017, a pro se notice of appeal filed by [Appellant].4

              4The notice of appeal is facially untimely, having been
              docketed 31 days after the entry of the Order
              dismissing the PCRA petition. The enclosing envelope
              does not appear on the docket, but [Appellant’s]
              “proof of service” bears the date June 19, 2017.
              [Appellant] also mailed to the undersigned what
              appears to be a courtesy copy of the notice of appeal,
              and the enclosing envelope bears the date June 20,
              2017.[4]

(PCRA Court Opinion, dated August 18, 2018, at 1-5).

        Appellant raises the following issues on appeal:


____________________________________________


3   In the Rule 907 notice, the court granted counsel’s request to withdraw.

4 Under the prisoner mailbox rule, we agree with the PCRA court to presume
Appellant timely filed his notice of appeal on or before the due date of June
22, 2017. See Commonwealth v. Chambers, 35 A.3d 34 (Pa.Super. 2011),
appeal denied, 616 Pa. 625, 46 A.3d 715 (2012) (explaining prisoner mailbox
rule provides that document is considered filed on date pro se prisoner delivers
it to prison authorities for mailing). Given that the Montgomery County Clerk
of Courts received and docketed the notice of appeal on June 23, 2017, it
stands to reason Appellant put his notice of appeal in the prison mail system
no later than the due date of June 22, 2017.

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         WAS PLEA COUNSEL INEFFECTIVE BY PRESENTING FALSE
         INFORMATION AS FACT, RENDERING [APPELLANT]’S PLEA
         OF GUILT INVOLUNTARY?

         WAS PCRA COUNSEL INEFFECTIVE BY FAILING TO AMEND
         [APPELLANT]’S    PETITION,     IGNORING       ALL
         COMMUNICATION FROM CLIENT, AND IGNORING THE
         UNDERLYING     CLAIM    OF    PLEA     COUNSEL’S
         INEFFECTIVENESS?

         DID [THE] PCRA COURT ERR IN ITS FINAL DISMISSAL
         AFTER REVIEW OF [APPELLANT]’S OBJECTION TO [THE]
         COURT’S NOTICE OF INTENT TO DISMISS PURSUANT TO
         PENNSYLVANIA RULE OF CRIMINAL PROCEDURE 907?

(Appellant’s Brief at 6).

      Appellant claims plea counsel gave Appellant false information that

persuaded Appellant to plead guilty.     Specifically, Appellant asserts plea

counsel lied to Appellant that his DNA evidence was recovered from the scene

of the crime. Appellant states counsel presented Appellant with a draft plea

agreement, while they were waiting for the hearing on Appellant’s motion to

suppress his allegedly coerced statement to the authorities, and urged

Appellant to take the plea as a result.     But for this “false” information

presented to Appellant as fact, he insists he would have continued with the

suppression hearing and gone to trial. Appellant further argues PCRA counsel

essentially ignored him and denied him the opportunity to amend his petition

and bring to full light Appellant’s underlying issues with plea counsel.

Appellant also complains the court wrongly dismissed his PCRA petition

without a hearing, given the material issues of fact surrounding the DNA

evidence and the information he received from plea counsel.        Appellant

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concludes he is entitled to withdraw his guilty plea or, in the alternative, obtain

a remand for the appointment of new counsel to file an amended petition, and

for a hearing on his claims. We cannot agree.

      Our standard of review of the denial of a PCRA petition is limited to

whether the evidence of record supports the court’s determination and

whether its decision is free of legal error. Commonwealth v. Conway, 14

A.3d 101, 109 (Pa.Super. 2011), appeal denied, 612 Pa. 687, 29 A.3d 795

(2011). This Court grants great deference to the findings of the PCRA court if

the record contains any support for those findings. Commonwealth v. Boyd,

923 A.2d 513, 515 (Pa.Super. 2007), appeal denied, 593 Pa. 754, 932 A.2d

74 (2007).     We give no like deference, however, to the court’s legal

conclusions.   Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa.Super.

2012). 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, the petitioner is not entitled to PCRA relief, and

no purpose would be served by any further proceedings. Commonwealth v.

Wah, 42 A.3d 335, 338 (Pa.Super. 2012); Pa.R.Crim.P. 907.

      The    law   presumes    counsel   has   rendered    effective   assistance.

Commonwealth v. Williams, 597 Pa. 109, 950 A.2d 294 (2008). When

asserting a claim of ineffective assistance of counsel, the petitioner is required

to demonstrate that: (1) the underlying claim is of arguable merit, (2) counsel

had no reasonable strategic basis for his action or inaction, and, (3) but for


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

outcome of the proceedings would have been different. Commonwealth v.

Kimball, 555 Pa. 299, 312, 724 A.2d 326, 333 (1999). The failure to satisfy

any prong of the test for ineffectiveness will cause the claim to fail. Williams,

supra.

      “The threshold inquiry in ineffectiveness claims is whether the

issue/argument/tactic which counsel has foregone and which forms the basis

for the assertion of ineffectiveness is of arguable merit….” Commonwealth

v. Pierce, 537 Pa. 514, 524, 645 A.2d 189, 194 (1994). “Counsel cannot be

found ineffective for failing to pursue a baseless or meritless claim.”

Commonwealth v. Poplawski, 852 A.2d 323, 327 (Pa.Super. 2004).

         Once this threshold is met we apply the ‘reasonable basis’
         test to determine whether counsel’s chosen course was
         designed to effectuate his client’s interests. If we conclude
         that the particular course chosen by counsel had some
         reasonable basis, our inquiry ceases and counsel’s
         assistance is deemed effective.

Pierce, supra at 524, 645 A.2d at 194-95 (internal citations omitted).

         Prejudice is established when [an appellant] demonstrates
         that counsel’s chosen course of action had an adverse effect
         on the outcome of the proceedings. The [appellant] must
         show that there is a reasonable probability that, but for
         counsel’s unprofessional errors, the result of the proceeding
         would have been different. A reasonable probability is a
         probability sufficient to undermine confidence in the
         outcome. In [Kimball, supra], we held that a “criminal
         [appellant] alleging prejudice must show that counsel’s
         errors were so serious as to deprive the defendant of a fair
         trial, a trial whose result is reliable.”

Commonwealth v. Chambers, 570 Pa. 3, 21-22, 807 A.2d 872, 883 (2002)

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(some internal citations and quotation marks omitted). To establish prejudice

in the context of a guilty plea, the petitioner must show a reasonable

probability that, but for counsel’s errors, the petitioner would not have pled

guilty and would have insisted on going to trial. Commonwealth v. Lippert,

85 A.3d 1095, 1100 (Pa.Super. 2014), appeal denied, 626 Pa. 683, 95 A.3d

277 (2014).

      Claims of ineffective assistance of counsel arising from the plea-

bargaining process are eligible for PCRA review.       Commonwealth ex rel.

Dadario v. Goldberg, 565 Pa. 280, 773 A.2d 126 (2001) (holding all

constitutionally recognized claims of ineffective assistance are cognizable

under PCRA). “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) (quoting Commonwealth v.

Hickman, 799 A.2d 136, 141 (Pa.Super. 2002)).             “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.” Moser, supra.

         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.         This standard is
         equivalent to the “manifest injustice” standard applicable to

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         all post-sentence motions to withdraw a guilty plea.

Commonwealth v. Morrison, 878 A.2d 102, 105 (Pa.Super. 2005) (en

banc), appeal denied, 585 Pa. 688, 887 A.2d 1241 (2005) (internal citations

omitted).

      A valid guilty plea must be knowingly, voluntarily and intelligently

entered. Commonwealth v. Pollard, 832 A.2d 517, 522 (Pa.Super. 2003).

A guilty plea will be deemed valid if the totality of the circumstances

surrounding the plea shows that the defendant had a full understanding of the

nature and consequences of his plea such that he knowingly and intelligently

entered the plea of his own accord. Commonwealth v. Fluharty, 632 A.2d

312, 314-15 (Pa.Super. 1993). 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 aware of his

rights and the consequences of his plea. Commonwealth v. Hodges, 789

A.2d 764 (Pa.Super. 2002) (citing Pa.R.Crim.P. 590). 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. Commonwealth v. Watson, 835 A.2d 786 (Pa.Super. 2003).

The reviewing Court will evaluate the adequacy of the plea proceedings and


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the voluntariness of the resulting plea based on the totality of the

circumstances surrounding its entry. Commonwealth v. Muhammad, 794

A.2d 378, 383-84 (Pa.Super. 2002). “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.” Pollard, supra at 523. The person

who elects to plead guilty has the duty to answer the colloquy questions

truthfully. Id. at 524. Pennsylvania law presumes a defendant knew what he

was doing when he entered his guilty plea, so he bears the burden to prove

otherwise. Commonwealth v. Yoemans, 24 A.3d 1044, 1047 (Pa.Super.

2011).

     In response to Appellant’s PCRA petition, the court reasoned:

         II. DISCUSSION

          [Appellant] is not entitled to post-conviction relief.

         [Appellant] asserted in his pro se petition that plea counsel
         had been ineffective by (1) leading [Appellant] to believe
         DNA evidence linked him to the scene of the crime, (2)
         failing to review phone records with him and (3) failing to
         investigate his accounts of his out-of-court state
         incarceration during which he gave a statement to police.
         He also alleged he did not know the Commonwealth had
         obtained materials from Lycoming County to use as
         handwriting exemplars.       None of these claims entitle
         [Appellant] to post-conviction relief.

                                 *     *      *

         Here, [Appellant] admitted to an extensive factual basis in
         connection with his negotiated guilty plea. He cannot
         contradict that sworn testimony now to win post-conviction

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       relief. Moreover, with regard to his claim about DNA
       evidence, as PCRA counsel explained in his “Memorandum
       of Law,” such evidence did link [Appellant] to the crimes to
       which he pleaded guilty.

       [Appellant] also does not allege how plea counsel’s alleged
       failure to review phone records would have changed his
       decision to plead guilty. Rather, [Appellant] stated under
       oath at the guilty plea hearing that he had sufficient time to
       discuss his case with plea counsel and was satisfied with
       plea counsel’s representation. He cannot contradict that
       sworn testimony.

       [Appellant], further, does not state how counsel’s alleged
       failure to investigate [Appellant’s] account of his out-of-
       state incarceration would have impacted his decision to
       plead guilty. To the contrary, [Appellant] asserts that plea
       counsel filed a motion to suppress the statement [Appellant]
       made during that incarceration but then admits that counsel
       later learned of such damaging evidence against [Appellant]
       that counsel believed a negotiated guilty plea became the
       better outcome. … The evidence, as borne out by the
       factual basis, [overwhelmingly] demonstrated [Appellant’s]
       commission of the charged offenses and the reasonableness
       of counsel’s conclusion.

       Finally, [Appellant] did not detail how the Commonwealth
       allegedly came into inappropriate possession of handwriting
       samples or how plea counsel’s alleged failure to inform him
       about the samples would have changed his decision to plead
       guilty. [Appellant], thus, did not present any meritorious
       claims warranting a hearing.

       Even more damaging to [Appellant’s] attempt at post-
       conviction relief, he cannot demonstrate prejudice from
       alleged counsel ineffectiveness. [Appellant] faced more
       than a dozen serious charges and overwhelming evidence of
       his guilt. Through a negotiated plea, the Commonwealth
       agreed to withdraw all but three of the charges, including
       first and second degree murder and their possibility of a
       mandatory life sentence without parole.             As such,
       [Appellant] is not entitled to post-conviction relief and this
       court properly dismissed his PCRA petition without a
       hearing.

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          II.   CONCLUSION

          Based upon the foregoing, the Order dismissing
          [Appellant’s] PCRA petition without a hearing should be
          affirmed.

(PCRA Court Opinion at 5-8).            The record supports the court’s decision.

Appellant’s written plea colloquy and his detailed oral plea colloquy in this case

demonstrate Appellant knew (a) he was pleading guilty to specific, reduced

offenses; (b) the rights he relinquished as a result of pleading guilty; (c) his

satisfaction with counsel’s assistance in the process; and (d) the parameters

of his sentence. See Watson, supra. Appellant is bound by the affirmative

statements he made during his plea hearing. See Pollard, supra. Moreover,

the evidence of record strongly implicated Appellant in the murder of Mr.

Hakimian, such that Appellant’s guilty plea was no aberration or naïve

undertaking. Thus, any minor “misunderstandings” Appellant might have had

about the evidence against him or how it was obtained does not invalidate his

plea or call it into question.5 Therefore, the PCRA court properly denied PCRA

relief.6 Accordingly, we affirm.

       Order affirmed.


____________________________________________


5The DNA analysis and the study attached to Appellant’s brief did not exclude
his presence at the crime scene. See, e.g., Forensic Biology Laboratory
Report, dated 12/08/14, at 2 (Item 9, Swab #2 “right ankle of victim”) and at
6 (Item 9—Swab #2), attached as Appendix “c” to Appellant’s Brief.

6 Appellant’s open motion to strike the Commonwealth’s brief on appeal is
denied.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/23/19




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