J-S34007-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

KYLE R. GOOSBY

                            Appellant                   No. 1005 WDA 2013


                   Appeal from the PCRA Order May 16, 2013
                In the Court of Common Pleas of Beaver County
              Criminal Division at No(s): CP-04-CR-0001566-2008


BEFORE: GANTMAN, P.J., BENDER, P.J.E., and OTT, J.

MEMORANDUM BY OTT, J.:                             FILED NOVEMBER 06, 2014

       Kyle R. Goosby (Goosby) appeals, pro se,1 from the order entered May

16, 2013, in the Court of Common Pleas of Beaver County, denying him

relief on his petition filed pursuant to the Post Conviction Relief Act (PCRA),

42 Pa.C.S. § 9541 et seq.          Goosby raises four issues in this appeal.   He

claims: (1) he was denied his 6th and 14th Amendment rights when he was

arraigned and presented with criminal information against him without the

benefit of counsel, (2) the PCRA court erred in determining there was no

ineffective assistance of counsel where counsel advised him that as part of

the guilty plea agreement the Commonwealth would not make a sentencing
____________________________________________


1
  Pursuant to Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998), an on
the record colloquy was held and Goosby was determined to have knowingly,
intelligently and voluntarily fired counsel and decided to proceed pro se.
See Amended Order, December 18, 2913.
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recommendation other than the two mandatory minimum sentences, (3),

the PCRA court erred in determining there was no ineffective assistance of

counsel where counsel did not clarify the terms of the plea agreement by

making certain Goosby knew the Commonwealth could make sentencing

recommendations, and (4) the PCRA court erred in determining there was no

ineffective assistance of counsel where counsel failed to inform him

mandatory minimum sentences would be invoked if counsel viewed certain

physical evidence.       After a thorough review of the submissions by the

parties, relevant law, and the certified record, we affirm on the sound

reasoning of the PCRA court.2

       Briefly, Goosby was arrested after making three sales of cocaine to a

confidential informant.       A consensual search of the motel room in which

Goosby and his girlfriend were living revealed more cocaine, marijuana,

several Lorazepam tablets, two oxycodone tablets, one Suboxone tablet,

$3,356.00 in cash and a loaded handgun.           Following one of the most

comprehensive guilty plea colloquies we have reviewed, the trial court

accepted the proffered open plea agreement.         Sentencing was deferred

pending the preparation of a pre-sentence report.
____________________________________________


2
  Our standard of review of a trial court order granting or denying relief
under the PCRA calls upon us to determine whether the determination of the
PCRA court is supported by the evidence of record and is free of legal error.
The PCRA court's findings will not be disturbed unless there is no support for
the findings in the certified record. Commonwealth v. Heredia, 97 A.3d
392, 394 (Pa. Super. 2014).



                                           -2-
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        On June 4, 2009, after hearing testimony from James Farmer, a

narcotics agent for the Office of the Pennsylvania Attorney General (on

behalf of the Commonwealth), and Goosby and Carol Steel-Smith, director of

Treatment for the Beaver County Jail (on behalf of Goosby), and considering

the pre-sentence report and argument by counsel, the trial court imposed an

aggregate sentence of 8 to 16 years’ incarceration to be served consecutive

to any Federal sentence Goosby was serving.

        Goosby’s post-sentence motion to withdraw his guilty plea was denied

and counsel failed to file a direct appeal. Goosby was granted nunc pro tunc

relief, and filed a direct appeal, which afforded him no relief.        See

Commonwealth v. Goosby, 31 A.3d 748 (unpublished memorandum) (Pa.

Super. 2011).3 Goosby’s sentence became final 30 days thereafter, July 20,

2011, when the time allowable to seek Pennsylvania Supreme Court review

expired.    Pursuant to the PCRA, Goosby had until July 20, 2012 to file a

PCRA petition.4 This timely petition was filed on February 28, 2012.5
____________________________________________


3
    The decision was filed on June 20, 2011.
4
    See 42 Pa.C.S. § 9545(b)(1),(3).
5
  The PCRA court incorrectly refers to this as Goosby’s second PCRA petition.
See PCRA Opinion, 5/16/2013, at 1. Where a defendant has been granted
nunc pro tunc direct appellate relief via the PCRA, such as happened here,
the next PCRA petition is considered to be the first PCRA petition, with all
attendant rights. See Commonwealth v. Figueroa, 29 A.3d 1177 (Pa.
Super. 2011). Here, Goosby filed a motion to proceed pro se along with the
instant petition. Although he was initially allowed to proceed pro se, he was
subsequently appointed counsel prior to his hearing. After the hearing,
(Footnote Continued Next Page)


                                           -3-
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        Initially, we note that Goosby’s first issue, regarding his allegation he

was arraigned and was presented with the bills of information against him at

arraignment without the benefit of counsel, could have been raised on direct

appeal, but was not.         The PCRA requires issues to be raised at the first

opportunity or be considered waived. Because this issue was not raised on

direct appeal, when it was first cognizable, the issue has been waived.6

        Additionally, the issue was not raised in his PCRA petition. Even if it

had not been waived for failing to raise the issue on direct appeal, it would

be waived for failure to raise the issue before the PCRA court.               See

Commonwealth v. Baumhammers, 92 A.3d 708, 730 (Pa. 2014) (issues

not raised before PCRA court cannot be raised for the first time on appeal).

        Goosby’s remaining three issue were properly preserved and raised

before the PCRA court, which cogently discussed the issues in its Pa.R.A.P.

1925(a) opinion, and found no merit to the allegations. Therefore, we rely

upon the PCRA court’s analysis and determinations in denying Goosby relief,

and adopt its opinion as dispositive of the issues raised in this appeal.

Essentially, the PCRA court correctly determined Goosby’s claims were

disproven by a simple review of the notes of testimony from the guilty plea

and sentencing hearings.          Additionally, any credibility determinations were
                       _______________________
(Footnote Continued)

PCRA counsel subsequently withdrew, and for appeal, counsel was appointed
and later withdrew pursuant to Grazier, as noted previously.
6
    See 42 Pa.C.S. § 9544(b).



                                            -4-
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based upon testimony from the PCRA hearing of September 24, 2012 and

were supported by the record. See Commonwealth v. Medina, 92 A.3d

1210, 1214 (Pa. Super. 2014) (The PCRA court's credibility determinations,

when supported by the record, are binding on this Court.)

     Because the PCRA court’s rulings are fully supported by the certified

record and we discern no errors of law, we affirm the order denying Goosby

relief. The parties are directed to attach a copy of the May 16, 2013, PCRA

court’s 1925(a) opinion.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/06/2014




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