J-S60002-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                         Appellee

                    v.

VERNON JERMELLE VEREEN,

                         Appellant                 No. 1668 WDA 2016


               Appeal from the PCRA Order October 25, 2016
             In the Court of Common Pleas of Allegheny County
            Criminal Division at No(s): CP-02-CR-0013527-2014


BEFORE: OLSON, J., DUBOW, J., and STEVENS, P.J.E.*

JUDGMENT ORDER BY OLSON, J.:                   FILED NOVEMBER 14, 2017

      Appellant, Vernon Jermelle Vereen, appeals from an order entered on

October 25, 2016 that denied his petition filed pursuant to the Post

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

      On November 4, 2015, Appellant pled guilty to one count of

unauthorized use of a motor vehicle, 18 Pa.C.S.A. § 3928(a). On the same

day, the trial court sentenced him to a two-year period of probation and

ordered him to pay restitution and participate in drug and alcohol treatment.

      The PCRA court provided the following summary of the ensuing

procedural facts.

      On November 10, 2015, [Appellant] submitted a pro se motion
      to withdraw his guilty plea. The court forwarded the pro se
      pleading to [plea counsel].   On February 26, 2016, [plea
      counsel] sought leave to withdraw from the case, and his
      request was granted that same day. The Office of the Public
      Defender was appointed to represent [Appellant] in any post-

*Former Justice specially assigned to the Superior Court.
J-S60002-17


      conviction matters. On August 24, 2016, PCRA [c]ounsel filed
      an[a]mended PCRA [p]etition claiming that [plea counsel]
      provided ineffective assistance of counsel because he failed to
      file a post-sentence motion seeking to withdraw [Appellant’s]
      plea.    The petition alternatively claimed that he provided
      ineffective assistance by failing to withdraw from representation
      earlier so that another attorney could file a timely post-sentence
      motion. PCRA [c]ounsel additionally claimed that [plea counsel]
      provided ineffective assistance of counsel because he caused
      [Appellant] to enter into a plea that was not intelligently,
      knowingly, or voluntarily made.        On October 5, 2016, the
      Commonwealth filed its [a]nswer to the PCRA [p]etition agreeing
      that an evidentiary hearing was warranted based on the nature
      of the claims.     A PCRA Hearing was subsequently held on
      October 26, 2016.        After considering the testimony and
      arguments presented at the hearing, as well as the evidence of
      record, the [PCRA] court found no merit to [Appellant’s] claims,
      and [] denied his PCRA [petition] that same day. This timely
      appeal followed.

PCRA Court Opinion, 2/22/17, at 2.

      Appellant raises the following issues, which he preserved in a timely

concise statement filed on November 28, 2016 pursuant to Pa.R.A.P.

1925(b).

      Did the [PCRA] court err when it failed to find [plea counsel]
      ineffective for not filing a post-sentence motion to withdraw
      [Appellant’s] guilty plea or seeking to withdraw his
      representation so another counsel could timely file said motion?

      Did the [PCRA] court err and/or abuse its discretion when it
      failed to find [plea counsel] ineffective because he was not
      adequately prepared to take [Appellant’s] case to trial, which
      caused [Appellant] to enter a guilty plea that was not
      intelligently, knowingly, and voluntarily made?

Appellant’s Brief at 4.

      We have carefully reviewed the certified record, the submissions of the

parties, and the opinion of the PCRA court.     Based upon our review, we

                                     -2-
J-S60002-17


conclude that the court adequately and accurately addressed the issues

raised on appeal. See PCRA Court Opinion, 2/22/17, at 2-12. Accordingly,

we affirm for the reasons expressed by the PCRA court and adopt its opinion

as our own. The parties are instructed to include a copy of the PCRA court’s

opinion with all future filings relating to our disposition in this appeal.

      Order affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/14/2017




                                       -3-
                                                              Circulated 10/23/2017 01:31 PM




      (N THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY,
                                           PENNSYLVANIA


COMMONWEALTH OF PENNSYLVANIA,CRIMINAL DIVISION

               vs,                       CC No, 2014-13527



 VERNON JERMELL-E VEREEN,

              Defendant.


                              OPINION

       This is an appeal from an Order entered on October
26, 2016, denying the Defendant's Amended Petition under
the    Post-Conviction       Relief    Act   ("PCRA"),     The     Defendant
originally had been charged with Receiving Stolen Property
(18    Pa.   C.S.A     53925),     Registration   and     Certificate            of
Titte    Required      (75   Pa.    C.S.A.   §1   301),       Operation          of
Vehicle      without     Official     Certificate       (75    Pa.       C.S.A.
§4703(a)), and Failure to Obtain Emission Certification
(75 Pa. C.S.A„ §4706(c)(5)). On November 4, 2015, the
Defendant pled guillY to one (1)               count     of    Unauthorized
IJs;c or a Motor Vehicle (18 Pa.
C.S,A. S3928(a)). Ali other charges were withdrawn. The
Defendant was sentenced that same day to a two (2) year
period ot probation, and he was ordered to pay restitution
in the amount of $2,095 to He;tz Vehicle. The Defendant
also was ordered to participate in drug and alcohol
treatment.
         On November 10, 2015, the Defendant submitted a pro
 se motion to withdraw his guilty plea. The                          f0Nvarded
 the pro se pleading to his attorney, Patrick J.
 Thomassey. On Februaty 26, 201 6, Attorney Thomassey
 sought leave to withdraw from the case, and his request
 was granted that same day. The Office of the Public
 Defender was appointed to represent the Deféndànt in any
 post-conviction matters. C)ñ
 August 24, 20] 6, PCFRA Counsel tiled an Amended PCRA
 Petition Claiming that
 Allorney Thomassey provided ineffective assistance of counsel
because he failed to filo a post-sentence motion seeking to
withdraw       the    Defendant's      plea.       (Amended     PCFRA     Petition,
8/24/16i,      p.    6)   The   petition     alternatively      claimed      that    he
provided      ineffective       assistance    by     failing   to    withdraw     from
representation earlier so that another attorney could tiEe a
timely post-sentence motion. ('d.)i PCRA Counsel additionally
claimed that Attorney Thomassey provided ineffective assistance
of counsel because he caused the Defendant to enter into a plea
that   was    not    intelligently,        knowingly,    or    voluntarily      made,
(Id.). On October 5, 2016, the Commonwealth filed its Answer to
the    PCRA   Petition     agreeing    that     an    evidentiary      hearing      was
warranted based on the nature of the claims.                        (Commonwealth's
Answer to PCRA Petition, 10/5/16, pp. 4-5). A PCRA Hearing was
subsequently held on October 26, 2016. After considering the
testimony and        arguments presented at the hearing, as wall as
the    evidence      of   record,    the     court    found    no    merit   to     tho
Defendant's claims, and it denied his PCFRA that same day. This
timely appeal followed.




   On November 28, 2016, the       Defendant   tiled   a   timely
   Concise Statement of Errors
Complained of on Appeal ("Concise SfaÈement"), raising two
(2) issues for review:
      a. The Trial Court erred and/or abused its discretion
      when it failed to find Attorney Thomassey ineffective
      for failing to file a post"sentence tnotion ta
      withdraw Mr. Vereen's guilty plea or failing to seek
      to withdraw.hig representation so another counsel
      cauld file said motion before the time to do so
      expired, These omissions deprived Mr. Vereeti the
      assistance of counsel under the Sixth Amendment of the
      United States Constitution and Article 1, Section 9 of
      the Pennsylvania Constitution,
      b, The Trial Court erred and/or abused its discretion
      when it failed to find Attorney Thomassey ineffective
      because he was not adequately prepared to take Mr.
      Vereen's case to trial. Attorney Thomassey l s
      inactions caused Mr. Verecn to enter a guilty plea
      that was not intelligently, knowingly and voluntarily
      made. Accordinglyt Mr. Vereen was deprived the
      assistance of counsel under the Sixth Amendment {'f
      the United States; Constitution and Article I ,
      Section g of the Pennsylvanta Constitution.
 (Concise Statement, pp. 2-3). The Defendants allegations
 of error on appeal are without merit, Respectfully, this
 courts October 26, 2016 Order denying the
 Defendant's Amended PCRA petition should be upheld for the
 reasons that follow.
).     DISCUSSION

        A. This court did not abuse its discretion by
          refusing to find that Mr     Thomassey provided
          ineffective assistance of counsel by not filing
          a post-sentence motion and/or by not seeking to
          withdraw from the case earlier so that another
          attorney could file a timely post-sentence
          motion.

       "[Tlho   standard   01   review   regarding   an   order   denying    a
petition under the PCIRA is          whether the determination of the
PCRA COUlt is supported by [he evidence of record
and is free of legal error." Commonwealth v. Turetsky, 925
A.2d 876, 879 (Pa. Super 2007) (citing Commonweath v. 870
A.2d 795, 799 (Pa. 2005)). "The court's scope 01 review is
hrnitad to the findings al the PCIRA court and the evidence
on the

                                     3
       record of the PCRA court's hearing, viewed in the light
                              most favorable to the prevailing
 party.": Commonwealth v. Duffy, gg9 A.2d 56, (Pa. 2005). "The

 PCRA court's findings will not be disturbed unless there is
 no support for the findings in the certified                     record."
 TuretskY;,   supra, at 879 (citing Commonwealth v. Carr, 768
 A.2d 164, 1 166
     (Pa. Super. 2001).
        It is well-settled that, in order to "prevail on a
claim alleging counsel's ineffectiveness under the PCHA,
la defendant] must demonstrate (1 ) that the undertying
                                                                         l
claim is of arguable merit; (2) that counsel                                 s course of
conduct           was        without    a   reasonable       basis        designed        to
effectuate           his      client's      interest;      and   (3)     that       he   was
prejudiced by counsel's ineffectiveness, i.e. there is a
reasonable probability that but for the act or omission in
question the outcome of the proceeding would have been
different.'
Commonwealth             v.    Bracey,      795    A.2d   935,     942       (Pa.    2001)
(internal citations omitted). "A reasonable, probability
is      a        probability        that     js     sufficient       to       undermine
confidence in the outcome of the proceeding." Commonwealth
v.      Spotz,          84     A.3d    294,       312     (Pa.     2014)       (quoting
Çommonweafth v. Ali, 10 A.3d 282, 291 (Pa. 2010)). The
burden is on the defendant to prove atl three (3) prongs
 01 tho test by a preponderance of the evidence. Turetskyj
sup/QQl at 880. "Where il is clear that a [defendantl has
failed to meet any of the three, distinct prongs of the
test, the claim may be disposed of on that basis                                         011e,

without a determination of whether the other two prongs
have been met."
al
     Commonwealth v. Steele, 961 A.2d 786, 797 (Pa. 2008),




                                              4
            As    noted,      the   Defendant     first   claims    that      this    court
     erred and/or abused its discretion when it failed to find that
 Attorney       Thomassey     provided    ineffective     assistance        "for
 failing to file a post-sentence motion to withdraw" his plea
 or for failing to withdraw from the case so that another
 attorney could file a timely post sentence motion.
 (Concise       Statement,       pp.2-3),      The     Defendant's      first
 allegation of error must fail because hÕ cannot prove that
 he suffered actual prejudice from Attorney Thornasscy•Š
 failure 10 file a post-sentence motion iri this case.



         As an initial matter, the court notes that PCRA Counsel
                                       attempted to argue at the
 PCRA    Hearing    that      Attorney    Thomassey      provided     per    se
 ineffective     assistance     of    counsel    by    failing   to   file       a
 post„sentence motion. (PCRA Hearing Transcript ("HT")
 10/25/16i p, 26), However, the decision in Commonwealth v.
 Reaves, 923 A.2d 1 i 19,
 1 23 (Pa. 2007) forecloses the argument that the failure to
file a post-sentence motion constitutes per se ineffective
assistance of counsel. In Reaves, our Supreme Court explained
that a defendant c}aiming ineffective assistance of counsel on
the grounds that his counsel railed to file a post-sentence
motion   must     prove     actual   prejudice    in     accordance    with
Strickland v, Washington, 466 U.S. 668 (1984) and Commonwealth
v. Pierce, 527 A.2d 973 (Pa. 1987). The Court explained that,
unlike   a   situation      where    counsel    failed   to   preserv•e      a
defendant's right to a direct appeal, the failure to lile al'
optional past-sentence motion does not comple\ely foreclose
appellate review, but rather "narrows the ambit" of the claims
that could be raised on direct appeal. Reaves, supãd, at 1
128-29. Therefore, the proper test for determining whether
counsel     provided         ineffective       assistance         in     the    context    of
fai}ing to fi*e a post-sentence motion is the
 traditional three-prong test outlined in Strickland v.
 Washington,            supra,     and                                     supra,      which
 requires a showing of actual prejudice. Id. at
 1 1 29.




        The     Defendant         cannot      Show         that    he    suffered       actuat
 prejudice from not having a                        counseled posfrsentenc,e motion
 filed seeking to withdraw his guilty plea, The

 Defendant's pro se motion to withdraw his                               submitted less
 than a week after his plea hearing, was mainly based on a
      claim of actual innocence for a crime to whith he
did not even plead guilty. (Prose Motion with Withdraw Guilty Plea, 11/10/15, i1i112,

14,        15),        The     Defendant             was     not        challenging        the
reasonableness of his sentence, nor was he challenging the
weight or sufficiency of evidence supporting his conviction
under      18     Pa.    C.S.A.        §3928.(a).     The     sole       form    of    relief
requested was the withdrawal ot his plea based on a blanket
assertion of innocence, and this court is beyond confident
that any counseled motion seeking to withdraw his guilty
plea would have been denied without hesitation because the
Defendant         would       have       been         unable       to     show        manifest
injustice. See Cornmanwoallh                                      24 A.3d 1044, 1046
(Pa.    Super.         201    i    )    ("IA]        defendant          who     altempts    to
withdraw a guilty plea after sentencing must demonstrate
prejudice         on    the       order      of       manifest          injustice       before
withdrawal is justified. A showing of manifest injustice
may   be   established   if   the   piea   was   entered   into
involuntarily, unknowingly, or unintelligently.")
      This court conducted a thorough plea coiJoquy with.
the Defendant at the time of his plea and sentencing,
and    for      the     reasons        set       forth        in    Section       of       this
Opinion, the Defendant's decision to plead guilty was
intelligently,            knowingly,             and       voluntarily           made.      Any
claim     to     the      contrary      is        completely             belied       by    the
evidence of record. Thus, even if Attorney Thomassey had
tiled a timely postsentence motion seeking to
Withdraw     the      Defendant'$       guilty             plea,   or    even    if    he   had
sought leave to withdraw so that another attorney could tile
a   timely      post-      sentence     motion,             any    postsentence        motion
seeking    to    withdraw        the   Defendant's             plea      would    have      been
                        'coun.
denied by this
                                             l
Accordingly, the Defendant                       s fir$t allegation of' error
is entirely without merit because the Defendant cannot
demonstrate that there existed "a reasonable probability
that but for the . omission in question the outcome of the
proceeding would have been different.                               Bracey, supra, at
                                                                   ,11




942. Based on the foregoing, it is clear that this court
did not abuse           its discretion in denying PCRA reliëf on
                                                       l
this basis, and the Detendant                               s first allegatíon of
error should be rejected on appeal




      B. This court did not abuse its discretion when it
      failed to find that


                                         9
         Attorney Thomassey                      caused the       Defendant to
         enter    into   an                       unknowing,       involuntary,
         unintelligent plea.


      In his second allegation                     of    error,    the    Defendant
      contends that Attorney
Thornassey was not "adequately prepared to take [the] casc
to trial" and that Attorney Thomasscy's "inactions" caused
the   Defendant    to    "antar       a         guilty   plea   Ihat     was    not
intelligently,     knowingly         and        voluntarily     made.    (Concise
Statement, p. 3). Again, this                    claim has no merit and is
directly contradicted by the record.
      At the Defendant's plea hearing on November 4, 2015i
the Defendant confirmed that: (1) he was not under the
influence of any drugs, alcoholi or medication that would
impair    his     ability       to    understand          the     proceedings         or
participate in them, (2) he was not                         suffering from any
mental illness or infirmity that would affect his decision
making abilities, (3) he was not threatened or coerced
into Pleading guilty, (4) he was not offered any promises
in exchange for his decision to plead guilty, (5) he tuny
and completely understood the naturo and the cqemeñts of
the    charge     to    which    he        was     pleading     guilty,        (6)    he
completed the Guilty-Plea Explanation of Rights Form with
the    advice,     assiŠtance             and      supervision      of     Attorney
Thomassey, (7) he read and understood each question on the

                                           10
form, (8) he answered all of the questions on the form
truthfully           and    honestly,         and       (9)    he     decided      to    plead
guilty to the unauthorized use charge because he was, in
fact,       guilty     of        that   crime.          (Plea        Hearing      Transcript
("PH"), 1 1/4/15, pp. 4-7),




      At the PCRA Hearing, Attorney Thomassey expounded on
the details of his representation and confirmed that the
Defendant's          main    goal       was        ta    plead        guilty      to     the
unauthorized use so that his detainer could be lifted on
another case, thereby allowing him to be released from
jail. (HT, pp. 5, 10)- Mr. Thomassey confirmed in his
lestitnony that he mat with the Detendant several times at
the jail prior to the hearing, and, in accordance with his
consistent practica over the last (40) years ot practicing
criminal raw, he reviewed the discovery and discussed the
case,     as    well        as    any     possible                 defenses,      with     the
Defendant. (H T, pp. 6-7, 9-10). Attorney Thornassey did
not   see      any    viable       defenses         to    the        charges,      and     the
Defendant never discussed any witnesses
 or evidence that could exculpate him. (HT, p. 7). Based
on      his    experience,          hi$    review             of     the   case    and     his
discussions with his client, Attorney Thomassey advised
the Defendant              that he      believed that he                   could get       the

                                              11
 detainer        lifted    if     the   Defendant      pled       guilty    to   the
 unauthorized use Charge. (HT, pp. g, •t i ), The Defendant
 indicated to        Attorney Thomassey that he was in complete
 agreement        with     that      strategy.       (HT,    p.    8)      Attorney
 Thomassey indicated -that he was "very surprised 'i when
 he      later    received       the    Defendant's         pro   se    motion    to
 withdraw his guilty plea because the Defendant "got what
 he wanted." (HT, p, I l ).



         The Defendant also testified at the PCRA Hearing, (HT,
         pp. 12-24). The
 Defendant testified that Attorney Thomassey forced him to
enter the guilty plea, arid he claimed that he had defense
to the charge in that he "rented the car." (HT, p, 15) The
Defendant        further    stated      that    Attorney      Thomassey        never
discussed the pros and cons of going to trial and that he
never discussed the benefits of a jury trial versus a non-
jury      trial.    (HT,        p.   16).     When    confronted        with     the
statements he made during his oral piea colloquy, as well
as the answers contained on the written Guilty Plea-
Explanation of Rights Form, the Defendant suddenJy had no
memory Of the many statements that he made in his oral and
written plea colloquies evincing understanding, and he
essentially claimed that he lied throughout the plea
proceedings. (H T, pp. 14-
15,18)




                                         12
     Specifically, the Defendant testified that (I ) he did
 not complete the written plea form, (2) it was not his
 handwriting on the form, and (3) he did not recall being
 asked during the plea hearing whether he had the advice,
 assistance, and supervision of Attorney Thomassey while
 filling out the form. (H T, pp. 18-19). The Defendant also
 responded "yes" when thiŠ coun specifically asked whether
 he had lied during the       colloquy, and he further claimed
 that he was promised that his detainer would be lifted it
 he pled guilty, directly contradicting the statements he
 had made under oath at the plea hearing. (HT, pp. 20). The
 Defendant also confirmed that hie; "chief complaint" in
 his motion was that he had evidence proving his innocence,
 in that he "rented the car." (HT, p. 22). When asked about
 the part of the plea form that explained he was giving up
 the right to present any defenses by pleading guilty, the
 Defendant   again   coufd   not   recall   that   question   or   his
 answer thereto. (HT. p, 23).




    In sum, the Defendants testimony during the PCRA
Hearing completely contradicted nearly every statement he
had made throughout the plea proceedings and on the
written colloquy form. The law is clear that "[a] person
who (êEects to plead guilty is bound by the statements ho
makes in open court while under oath and he may not later
assort grounds for withdrawing the plea which contradict
the statements he made at his plaa colloquy." Commonwealth
v. Pollard, 832 A.'2d 517, 523 (Pa. 2003).
Indeed, the "longstanding rule of Pennsylvania law is that
a defendant may not chal|enge his guilty plea hy asserting
that he lied while under oath, even it he avers that
counsel induced the lies," Yeomans, supra, at 1047. As our
appellate court has explained, "a defendant who elects to
plead guilty has a duty to answer questions truthfully. We
[cannot) permit a defendant to postpone the final
disposition of his case by lying to the court and later
alleging that his lies were induced by the prompting of
counsel." Pollard, supra,. at 523-24.



     The Defendant testifièd at his plea hearing that he
was pleading guilty because he was, in fact, guilty, and
the evidence of record established that the Defendant
knowingly, voluntarily, and intelligentiy entered his
guilty plea. Mr. Thomassey discharged his duty of
providing competent representation, and none of his
actions or inactions caused an involuntary plea. To the
contrary, based on their conversations, the highly
seasoned and experienced attorney obtained exactly the
result that the
Defendant was seeking.
     To grant PCRA relief in this case would require the
reviewing court to accept that the Defendant lied under
oath during both his written and oral plea colloquies, and
then reward him for doing so. Respectfúlly, the reviewing
court should refuse to allow the Defendant to lie his way
out of his conviction, This court would also note the
absolute hypocrisy of the Defendant's claim that Attorney
Thomassey did not adequately represent him at the above-
captioned case since he is currently allowing Attorney
Thomassey to represent him on another case, filed at CCH
2014-12770, which is exceedingly more complex. It makes no
sense to assume that the Defendant would continue to be
represented by an attorney as unskilled or ineffective as
he alleges Mr.
Thomassey tobe. Accordingly,     for   the   reasons   set   forth
above, this second allegation

                            11


of error as raised in the Defendant's Concise Statement
should also be rejected on appeal



u.   CONCLUSION

     Based on the foregoing discus$ion, this court did not
err when it denied the Defendant's PCRA petition because
Attorney Thomassay did not provide ineffective assistance
of counsel, and this couffls October 26, 2016 Order denying
PCRA relief should be upheld.

                           BY THE COURT:




                                12
