J-S59045-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    IDRIS PHELPS                               :
                                               :
                      Appellant                :   No. 3537 EDA 2016

                  Appeal from the PCRA Order October 4, 2016
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0013478-2012


BEFORE:      BENDER, P.J.E., OTT, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                       FILED SEPTEMBER 29, 2017

        Appellant, Idris Phelps, appeals pro se from the order entered in the

Philadelphia County Court of Common Pleas denying his first Post Conviction

Relief Act1 (“PCRA”) petition.            Appellant contends PCRA counsel was

ineffective for failing to argue that trial counsel was ineffective for coercing

him into taking a guilty plea. We affirm.

        The facts are unnecessary for our disposition.           The PCRA court

summarized the procedural posture of this case as follows:

              On August 31, 2012, [Appellant] was arrested and
           charged with murder, attempted murder, aggravated
           assault, violations of the Uniform Firearms Act, recklessly
____________________________________________


*     Former Justice specially assigned to the Superior Court.
1
    42 Pa.C.S. §§ 9541-9546.
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         endangering another person and possessing an instrument
         of crime. . . .    On September 22, 2014, [Appellant]
         entered into a negotiated guilty plea to the charges of
         murder of the third degree and attempted murder in return
         for an aggregate sentence of twenty-five to fifty years’
         incarceration. [Appellant] was sentenced in accordance
         with the agreement on the same day as the plea and no
         motion to withdraw that plea has ever been filed.
         Likewise, there was no direct appeal taken.

             [Appellant] filed his [PCRA] petition on September 17,
         2015. New counsel was appointed who filed a Finley1
         letter and motion to withdraw as counsel on August 25,
         2016. Errantly, this court failed to serve [Appellant] a
         Notice of Intent to Dismiss in accord with Pennsylvania
         Rules of Criminal Procedure 907, but nevertheless,
         dismissed [Appellant’s] PCRA petition on October 4, 2016.
         [Appellant] filed a timely notice of appeal and served a pro
         se statement of Matters Complained of on Appeal on the
         court on November 16, 2016.

            1
             Commonwealth v. Finley, [ ] 550 A.2d 213 ([Pa.
            Super.] 1998).

PCRA Ct. Op., 12/12/16, at 1-2.

      Appellant raises the following issue for our review: “Whether PCRA

counsel was ineffective for failing to argue trial counsel’s ineffectiveness

since trial counsel was ineffective for coercing Appellant [ ] into taking a

guilty plea?” Appellant’s Brief at 4.

      As a prefatory matter, we consider whether Appellant has waived the

issue of PCRA counsel’s ineffectiveness for failing to raise it prior to the

instant appeal.   In Commonwealth v. Henkel, 90 A.3d 16 (Pa. Super.

2014) (en banc), this Court opined:

         [The a]ppellant’s first three issues all involve claims
         pertaining to PCRA counsel’s representation. Neither party


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          has cited the Pennsylvania Supreme Court’s modern
          treatment    of   this  issue   in   numerous    cases.
          Commonwealth v. Jette, [ ] 23 A.3d 1032, 1044 n. 14
          ([Pa.] 2011); Commonwealth v. Hill, 16 A.3d 484, 497
          n. 17 ([Pa.] 2011); Commonwealth v. Colavita, [ ] 993
          A.2d 874, 893 n. 12 ([Pa.] 2010);[2] Commonwealth v.
          Pitts, 981 A.2d 875 ([Pa.] 2009); Commonwealth v.
          Ligons, [ ] 971 A.2d 1125 ([Pa.] 2009) (plurality);
          Commonwealth v. Potter, [ ] 58 A.3d 752 ([Pa.] 2012)
          (per curiam order). Nor have the parties addressed this
          Court’s most comprehensive discussion of Pennsylvania
          Supreme Court precedent on this matter, Commonwealth
          v. Ford, 44 A.3d 1190 (Pa. Super. 2012) (collecting
          cases).    Those decisions all clarify that claims of
          PCRA counsel's ineffectiveness may not be raised for
          the first time on appeal.

Id. at 20 (emphasis added). In Ford, this Court opined:

          We acknowledge that [the a]ppellant did raise the
          ineffectiveness of PCRA counsel issue in his Pa.R.A.P.
          1925(b) statement after the Supreme Court remanded the
          matter and new counsel was appointed for purposes of
          advancing his appeal nunc pro tunc, i.e., at the first
          opportunity. Additionally, the PCRA court addressed the
          issue in its Pa.R.A.P. 1925(a) opinion. [The a]ppellant’s
          question also pertains to matters of record and does not
          require this Court to engage in any factual findings. Thus,
          several of the concerns expressed for not addressing such
          a claim are not present. Nonetheless, a majority of the
          Supreme Court agrees that issues of PCRA counsel
          effectiveness must be raised in a serial PCRA petition or in
          response to a notice of dismissal before the PCRA court.
          In addition, the Supreme Court’s remand order in the
          instant case allowed for the appointment of counsel, not
          for the collateral review process to begin anew. Therefore,
          we hold that, absent recognition of a constitutional right to
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2
   The Pennsylvania Supreme Court stated: “claims of PCRA counsel
ineffectiveness may not be raised for the first time at the direct appeal level,
much less at the discretionary appeal level.” Id.




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          effective collateral review counsel, claims of PCRA counsel
          ineffectiveness cannot be raised for the first time after a
          notice of appeal has been taken from the underlying PCRA
          matter.

Ford, 44 A.3d at 1200-01. Furthermore,

          As noted, in Jette, as in [Commonwealth v.] Burkett,
          [5 A.3d 1260 (Pa. Super. 2010)], the PCRA court did not
          file a notice of intent to dismiss because it held a hearing.
          However, the Jette Court did not distinguish Pitts on that
          ground and signaled that Colavita was binding precedent
          on the issue of whether a claim of PCRA counsel
          ineffectiveness could be raised for the first time on appeal.
          Consequently, the Supreme Court concluded after the
          Burkett decision that a PCRA petitioner cannot assert
          claims of PCRA counsel ineffectiveness for the first
          time on appeal, regardless of whether a Rule 907[3]
          or 909 notice is involved.


____________________________________________


3
    Rule 907 provides, in pertinent part, as follows:

          Except as provided in Rule 909 for death penalty cases,

          (1) the judge shall promptly review the petition, any
          answer by the attorney for the Commonwealth, and other
          matters of record relating to the defendant’s claim(s). If
          the judge is satisfied from this review that there are no
          genuine issues concerning any material fact and that the
          defendant is not entitled to post-conviction collateral relief,
          and no purpose would be served by any further
          proceedings, the judge shall give notice to the parties of
          the intention to dismiss the petition and shall state in the
          notice the reasons for the dismissal. The defendant may
          respond to the proposed dismissal within 20 days of the
          date of the notice. The judge thereafter shall order the
          petition dismissed, grant leave to file an amended petition,
          or direct that the proceedings continue.

Pa. R. Crim. P. 907(1).




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Henkel, 90 A.3d at 28 (emphasis added).

       In the case sub judice, Appellant asserted claims of PCRA counsel’s

ineffectiveness for the first time on appeal.         Therefore, we find the issue

waived. See Henkel, 90 A.3d at 28; Ford, 44 A.3d at 1200-01.

       Even assuming, arguendo, that the claim was not waived, Appellant

would not be entitled to relief.4              Appellant avers PCRA counsel was

ineffective for failing to raise trial counsel’s ineffectiveness for coercing him

into pleading guilty. He claims


          1. Appellant’s Trial/Plea-hearing counsel gave Appellant no
          objective evidence that he was prepared to defend
          Appellant at trial; 2. Appellant’s [counsel] advised him that
          a death sentence or life in prison was guaranteed to be his
          outcome if he did not accept the plea offered; 3. although
          Appellant notified the trial Court that every paragraph in
          the plea colloquy had been read to him, he did not
          understand what was read to him . . .; 4. the recollection
          of facts as recounted in Appellant’s Affidavit . . . is
          objectively different than the prosecutor’s representation
          of fact that was introduced during the Plea colloquy . . . .

Id. at 9-10.      Appellant contends that “the facts as represented by the

Prosecutor (i.e., facts introduced during Appellant’s plea colloquy), could not

____________________________________________


4
  We note that the certified record transmitted on appeal did not initially
include the notes of testimony from the September 22, 2014, guilty plea
hearing. Upon informal inquiry by this Court, the trial court provided the
transcript. The appellant that he bears the burden of “ensur[ing] the record
certified on appeal is complete in the sense that it contains all of the
materials necessary for the reviewing court to perform its duty.”
Commonwealth v. B.D.G., 959 A.2d 362, 372 (Pa. Super. 2008) (en banc)
(citations omitted).



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be proven beyond a reasonable doubt as they are a factually incorrect

representation pursuant to Appellant’s recollection of his encounter with the

victims.” Id. at 11.

       “On appeal from the denial of PCRA relief, our standard and scope of

review is limited to determining whether the PCRA court’s findings are

supported by the record and without legal error.” Commonwealth v. Abu-

Jamal, 941 A.2d 1263, 1267 (Pa. 2008).           “Furthermore, we note that we

are bound by the PCRA court’s credibility determinations where there is

record support for those determinations.”        Commonwealth v. Santiago,

855 A.2d 682, 694 (Pa. 2004).

       With respect to claims of counsel’s ineffectiveness,

          [C]ounsel is presumed to have provided effective
          representation unless the PCRA petitioner pleads and
          proves that: (1) the underlying claim is of arguable merit;
          (2) counsel had no reasonable basis for his or her conduct;
          and (3) Appellant was prejudiced by counsel’s action or
          omission.[5] To demonstrate prejudice, an appellant must
          prove that a reasonable probability of acquittal existed but
          for the action or omission of trial counsel. A claim of
          ineffective assistance of counsel will fail if the petitioner
          does not meet any of the three prongs. Further, a PCRA
          petitioner must exhibit a concerted effort to develop his
          ineffectiveness claim and may not rely on boilerplate
          allegations of ineffectiveness.

Commonwealth v. Perry, 959 A.2d 932, 936 (Pa. Super. 2008) (citations

and quotation marks omitted).
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5
  This three part test was enunciated in Commonwealth v. Pierce, 527
A.2d 973, 975 (Pa. 1987).



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     “In determining whether counsel’s action was reasonable, we do not

question whether there were other more logical courses of action which

counsel could have pursued; rather, we must examine whether counsel’s

decisions had any reasonable basis.” Commonwealth v. Washington, 927

A.2d 586, 594 (Pa. 2007).     Conversely, to merit relief, counsel’s action,

given all the other available alternatives, must be “so unreasonable that no

competent lawyer would have chosen it.” Commonwealth v. Miller, 431

A.2d 233, 234 (Pa. 1981) (citation omitted).        “The burden of proving

ineffectiveness rests with [the a]ppellant.” Commonwealth v. Rega, 933

A.2d 997, 1018 (Pa. 2007).

     Appellant presents a layered claim of PCRA counsel’s ineffectiveness.

        Layered claims of ineffectiveness “are not wholly distinct
        from the underlying claims[,]” because “proof of the
        underlying claim is an essential element of the derivative
        ineffectiveness claim[.]” “In determining a layered claim
        of ineffectiveness, the critical inquiry is whether the first
        attorney that the defendant asserts was ineffective did, in
        fact, render ineffective assistance of counsel. If that
        attorney was effective, then subsequent counsel
        cannot be deemed ineffective for failing to raise the
        underlying issue.”

Commonwealth v. Rykard, 55 A.3d 1177, 1190 (Pa. Super. 2012)

(citations omitted and emphasis added).

     Furthermore,

        [A] petitioner must plead in his PCRA petition that his prior
        counsel, whose alleged ineffectiveness is at issue, was
        ineffective for failing to raise the claim that counsel who
        preceded him was ineffective in taking or omitting some
        action. In addition, a petitioner must present argument . .


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        . on the three prongs of the Pierce test as to each
        relevant layer of representation.

Commonwealth v. Reaves, 923 A.2d 1119, 1128 (Pa. 2007) (citations

omitted).

     In Commonwealth v. Rathfon, 899 A.2d 365 (Pa. Super. 2006), this

Court opined:

        A criminal defendant has the right to effective counsel
        during a plea process as well as during trial. A defendant
        is permitted to withdraw his guilty plea under the PCRA if
        ineffective assistance of counsel caused the defendant to
        enter an involuntary plea of guilty.

            We conduct our review of such a claim in accordance
            with the three-pronged ineffectiveness test under
            section 9543(a)(2)(ii) of the PCRA, 42 Pa.C.S.A. §
            9543(a)(2)(ii).   The voluntariness of the plea
            depends on whether counsel’s advice was within the
            range of competence demanded of attorneys in
            criminal cases.

                                *    *    *

         [T]he 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.

Id. at 369-70 (some citations and quotation marks omitted).

            Because a plea of guilty effectively waives all non-
        jurisdictional defects and defenses, after sentencing,
        allegations of ineffectiveness of counsel in this context
        provide a basis for withdrawal of the plea only where there
        is a causal nexus between counsel’s ineffectiveness, if any,
        and an unknowing or involuntary plea. The guilty plea
        hearing becomes the significant procedure under scrutiny.
        The focus of the inquiry is whether the accused was misled
        or misinformed and acted under that misguided influence
        when entering the guilty plea.


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Commonwealth v. Flood, 627 A.2d 1193, 1199 (Pa. Super. 1993)

(citations and quotation marks omitted).

     Furthermore,

        [t]he longstanding rule of Pennsylvania law is that a
        defendant may not challenge his guilty plea by asserting
        that he lied while under oath, even if he avers that counsel
        induced the lies. 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. Pollard, 832 A.2d 517, 523 (Pa. Super. 2003) (citations

omitted).

     In the case sub judice, the PCRA court opined:

            [Appellant] entered into a written negotiated plea on
        September 22, 2014, calling for an aggregate term of
        twenty-five to fifty years’ incarceration in return for his
        plea to third degree murder and attempted murder. The
        first page of the written colloquy twice affirms the terms of
        the negotiated sentence. The third page of the colloquy is
        signed by [Appellant] below the declaration “I have read
        all of the above, or my lawyer read it to me. I understand
        it. My answers are all true and correct.” This certification
        was witnessed and attested to by the [sic] both
        [Appellant’s] attorney and the prosecutor, as well as the
        trial court. The court asked [Appellant], prior to admitting
        the plea, if he wished to enter the plea, if he had read the
        colloquy and understood everything in the colloquy, and if
        it was his signature on the third page. [Appellant] further
        confirmed that the sentence to which he agreed was
        twenty-five to fifty years’ incarceration, and twice that he
        was satisfied with his lawyer. When the facts were read to
        him [Appellant] acknowledged that those were the facts to
        which he was pleading guilty. Prior to entering the plea,
        [Appellant] asked for time to speak with his lawyer as well
        as his family. Arrangements were made so that he could
        speak with both. The plea colloquy, oral and written,

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         conveyed all the required information for [Appellant] to
         make a knowing, intelligent and voluntary decision and the
         totality of the circumstances clearly shows [Appellant’s]
         guilty plea met those requirements.

PCRA Ct. Op. at 6-7 (citations to the record omitted). We agree no relief is

due.

       Appellant is bound by the statement he made in open court.              See

Pollard, 832 A.2d at 253. The PCRA court found that Appellant entered a

knowing, intelligent and voluntary decision to enter a guilty plea, relying

upon the written guilty plea colloquy and oral colloquy. See id.; see also

Santiago, 855 A.2d at 694.       Appellant has not shown that but for counsel’s

errors he would not have pleaded guilty.           See Moser, 921 A.2d at 531;

Rathfon, 899 A.2d at 370.        Our review of the guilty plea hearing belies

Appellant’s assertion of counsel’s ineffective assistance resulting in an

unknowing     or   involuntary   plea.       See   Flood,   627   A.2d   at   1199.

Consequently, PCRA counsel cannot be deemed ineffective for failing to raise

the underlying issue of trial counsel’s ineffectiveness. See Rykard, 55 A.3d

at 1190; Reaves, 923 A.2d at 1128.

       For all of the foregoing reasons, we affirm the order denying

Appellant’s PCRA petition.

       Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/29/2017




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