J-S38019-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

ANTHONY J. BREELAND, JR.,

                        Appellant                   No. 2410 EDA 2015


                 Appeal from the PCRA Order July 8, 2015
             In the Court of Common Pleas of Lehigh County
           Criminal Division at No(s): CP-39-CR-0005335-2013


BEFORE: FORD ELLIOTT, P.J.E., OLSON AND JENKINS, JJ.

MEMORANDUM BY OLSON, J.:                             FILED JUNE 29, 2016

     Appellant, Anthony J. Breeland, Jr., appeals from the order entered on

July 8, 2015 denying his counseled first petition filed under the Post

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

     The trial court summarized the relevant facts as follows:

     On April 8, 2014, [Appellant] pleaded nolo contendere to
     [p]ossession with [i]ntent to [d]eliver a [c]ontrolled [s]ubstance.
     As part of the plea agreement, charges of [simple possession],
     [p]ossession of [d]rug [p]araphernalia, and [c]riminal [u]se of a
     [c]ommunication [f]acility were dismissed. [In addition, the
     parties agreed] that [Appellant’s] minimum sentence would not
     exceed the bottom end of the standard range of the sentencing
     guidelines.   On May 30, 2014, [the trial court] sentenced
     [Appellant] to a term of imprisonment of 18 months to 36
     months in a [s]tate [c]orrectional [i]Institution, followed by
     [two] years of probation. [Appellant’s sentence fell within] the
     mitigated range of the guidelines.

     [Appellant’s] plea and sentencing [counsel] filed a [m]otion for
     [r]econsideration of [s]entence on June 9, 2014. . . . On July
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      17, 2014, [the trial court denied Appellant’s reconsideration
      m]otion[.] On August 12, 2014, [Appellant] filed a pro se
      [n]otice of [a]ppeal from that decision, which was discontinued
      at [Appellant’s] request [] on October 17, 2014.[]

      [After Appellant filed a pro se petition for collateral relief, the
      PCRA court, on October 28, 2014,] appointed [counsel] to
      represent [Appellant] on the PCRA matter. A hearing was held
      on May 12, 2015, at which time [Appellant] indicated the only
      issue he was pursing was whether [plea and sentencing counsel]
      was ineffective for failing to file a motion to withdraw [the plea
      of nolo contendere], which [Appellant] allege[dly] requested. On
      July 8, 2015, [the PCRA court] issued an order denying
      [Appellant’s] PCRA petition. This appeal followed.[]

PCRA Court Opinion, 9/30/15, at 1-2.

      Appellant raises the following issue for our review:

      Whether the PCRA [c]ourt erred by denying the PCRA [petition]
      which sought to have plea counsel declared ineffective for failing
      to file a motion to withdraw the guilty plea?

Appellant’s Brief at 6.

      In his sole issue on appeal, Appellant asserts that he asked counsel to

file a motion to withdraw his plea after the trial court imposed its sentence.

According to Appellant, however, counsel declined to do so, stating that such

a motion had to be filed prior to sentencing. Appellant contends that this

advice was inaccurate and that, given Appellant’s need for mental health and

drug addiction therapy, it should have been evident that Appellant pleaded

nolo contendere in order to receive services rather than subject himself to

state incarceration where such services were unavailable.            Appellant

maintains that counsel’s failure to act prejudiced him because he could have

pursued an acquittal at trial and, thereafter, sought treatment for mental



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health issues and drug addiction without the stigma of an additional criminal

conviction. These arguments are meritless.

      We initially address the factual component of Appellant’s claim. At his

PCRA hearing, Appellant testified that he asked counsel to withdraw his plea

immediately after sentencing and during a subsequent visit during which

counsel asked Appellant to review a motion for reconsideration of sentence.

Counsel denied that Appellant asked him to withdraw the plea. The PCRA

court credited counsel’s testimony and rejected Appellant’s version of

events.

      “Our review of a PCRA court's decision is limited to examining whether

the PCRA court's findings of fact are supported by the record, and whether

its conclusions of law are free from legal error.”        Commonwealth v.

Mason, 130 A.3d 601, 617 (Pa. 2015) (quotation omitted).          “We view the

findings of the PCRA court and the evidence of record in a light most

favorable to the prevailing party.”      Id.     “The PCRA court's credibility

determinations, when supported by the record, are binding on this Court[.]”

Id. Because the record supports the PCRA court’s credibility determination,

we are bound by the finding that Appellant never requested withdrawal of

his plea.

      We    now   consider   whether   counsel   should   have   been   deemed

ineffective for failing to seek withdrawal of Appellant’s plea regardless of

whether Appellant asked him to pursue such action. This facet of Appellant’s

claim argues that counsel should have moved to withdraw the plea given

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that Appellant’s desire was to receive treatment for his mental health and

addiction issues and that the imposition of a state sentence frustrated that

aim.1 The PCRA court found that Appellant failed to establish that counsel’s

actions resulted in a manifest injustice.        Accordingly, the court held that

Appellant’s claim lacked arguable merit and that he was not entitled to relief.

We agree.

       Under the PCRA, a petitioner bears the burden of establishing, by a

preponderance of the evidence, that his conviction or sentence resulted from

one or more of the circumstances enumerated in 42 Pa.C.S. § 9543(a)(2),

which include the ineffectiveness of counsel that “so undermine[s] the truth-

determining process that no reliable adjudication of guilt or innocence could

have taken place.”        Mason, 130 A.3d at 617-618, quoting 42 Pa.C.S. §

9543(a)(2)(ii).    Where the ineffectiveness of counsel is alleged, counsel is

presumed to be effective and the petitioner bears the burden of proving

otherwise. Commonwealth v. Rivers, 786 A.2d 923, 927 (Pa. 2000). We

review allegations of counsel's ineffectiveness in connection with a guilty

plea2 under the following standards:
____________________________________________


1
  A valid plea colloquy delves into six areas: 1) the nature of the charges, 2)
the factual basis for the plea, 3) the right to a jury trial, 4) the presumption
of innocence, 5) the sentencing ranges, and 6) the plea court's power to
deviate from any recommended sentence. See Comment to Pa.R.Crim.P.
590(A)(2). Appellant does not challenge the sufficiency of his plea colloquy.
2
 In the present context, a plea of nolo contendere is treated the same as a
guilty plea. Commonwealth v. Lewis, 791 A.2d 1227, 1230 (Pa. Super.
(Footnote Continued Next Page)


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      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,
      see generally Commonwealth v. Kimball, 724 A.2d 326, 333
      (Pa. 1999), 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. See, e.g., [Commonwealth v.] Allen, 732
      A.2d [582,] 587 [(Pa. 1999)] (“Allegations of ineffectiveness in
      connection with the entry of a guilty plea will serve as a basis for
      relief only if the ineffectiveness caused appellant to enter an
      involuntary or unknowing plea.”)....

      Commonwealth v. Flanagan, 854 A.2d 489, 502 (Pa. 2004).
      This standard is equivalent to the “manifest injustice” standard
      applicable to all post-sentence motions to withdraw a guilty plea.
      Commonwealth v. Watson, 835 A.2d 786 (Pa. Super. 2003).
      Furthermore,

      [T]he constitutional ineffectiveness standard requires the
      defendant to rebut the presumption of professional competence
      by demonstrating that: (1) his underlying claim is of arguable
      merit; (2) the particular course of conduct pursued by counsel
      did not have some reasonable basis designed to effectuate his
      interests; and (3) but for counsel's ineffectiveness, there is a
      reasonable probability that the outcome of the proceedings
      would have been different.       Commonwealth v. (Michael)
      Pierce, 786 A.2d 203, 213 (Pa. 2001); Commonwealth v.
      Kimball, 724 A.2d 326, 333 (Pa. 1999). A failure to satisfy any
      prong of the test for ineffectiveness will require rejection of the
      claim.

Commonwealth v. Morrison, 878 A.2d 102, 104-105 (Pa. Super. 2005)

(internal indentations omitted).

      In addressing Appellant’s claim, the PCRA court stated as follows:

                       _______________________
(Footnote Continued)

2002). Hence, all references to the term “guilty plea” shall refer to a plea of
nolo contendere.



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      [Appellant] has failed to show that [a motion to withdraw his
      plea] would have had a favorable outcome. He has offered no
      grounds that would have allowed him to withdraw his plea
      following his sentence. It appears [Appellant] was unhappy with
      the lack of certain mental health programs as part of his
      sentence. This certainly does not rise to the level of manifest
      injustice. Finally, there is nothing to suggest that [plea counsel]
      had any reason to believe there were grounds to support a
      motion for withdrawal of the guilty plea. Absent such a showing,
      [the court] will not find [counsel] ineffective.

PCRA Court Order, 7/8/15, at 1-2 n.1.

      After   careful   review   of   the   submissions   of   the   parties,   the

determinations of the PCRA court, and the certified record, we agree that

Appellant failed to establish a manifest injustice. In the absence of such a

showing, there was no basis for filing a motion to withdraw Appellant’s plea.

“[I]t is axiomatic that [plea] counsel [cannot] be considered ineffective for

failing to pursue meritless claims.” Commonwealth v. Pursell, 724 A.2d

293, 304 (Pa. 1999).        Because the PCRA court’s determinations are

supported by the record and consistent with applicable law, Appellant is not

entitled to relief. Accordingly, we affirm.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/29/2016




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