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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA            :    IN THE SUPERIOR COURT OF
                                        :          PENNSYLVANIA
                  v.                    :
                                        :
KAHLIL TAVARUS SHELTON,                 :         No. 921 WDA 2015
                                        :
                       Appellant        :


                 Appeal from the PCRA Order, May 12, 2015,
             in the Court of Common Pleas of Allegheny County
             Criminal Division at Nos. CP-02-CR-0015251-2012,
                          CP-02-CR-0015499-2012


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


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                   FILED APRIL 4, 2016

      Kahlil Tavarus Shelton appeals from the order entered in the Court of

Common Pleas of Allegheny County that dismissed his petition filed pursuant

to the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546 (“PCRA”). We

affirm.

      The PCRA court set forth the procedural history as follows:

           . . . On June 4, 2014, pursuant to a negotiated plea
           agreement, [appellant] pled guilty to two (2)
           separate criminal cases. At the criminal information
           filed at CC# 2012-15499, he pled guilty to all
           charged counts, including (i) Firearms not to be
           Carried Without a License (Count One – 18 Pa.C.S.A.
           § 6106(a)(1)); (ii) Carrying a Loaded Weapon
           (Count Two – 18 Pa.C.S.A. § 6106.1(a));
           (iii) Improper  Sunscreening    (Count     Three   –
           75 Pa.C.S.A. § 4524(e)(1)); and (iv) Driving with a
           Suspended License (Count Four – 75 Pa.C.S.A.
           § 1543(b)(1)).[Footnote 1]    (See Plea Transcript
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          (“P.T.”), 6/4/14, pp. 2-3).          At the criminal
          information     filed  at   CC#    2012-15251,     the
          Commonwealth agreed to withdraw counts One (1),
          Two (2), and Six (6) in exchange for [appellant’s]
          agreement to plead guilty to the following offenses:
          (i) Firearms not to be Carried Without a License
          (Count Three - 18 Pa.C.S.A. § 6106(a)(1));
          (ii) Firearms not to be Carried Without a License
          (Count Four - 18 Pa.C.S.A. § 6106(a)(1));
          (iii) Possession of a Firearm Prohibited (Count Five –
          18 Pa.C.S.A. § 6105); (iv) Operating Vehicle with
          Unsafe Equipment (Count Seven – 75 Pa.C.S.A.
          § 4107(b)(2)); (v) Driving with a Suspended License
          (Count Eight – 75 Pa.C.S.A. § 1543(b));
          (vi) Carrying a Loaded Weapon (Count Nine –
          18 Pa.C.S.A. § 6106.1(a)); and (vii) Carrying a
          Loaded Weapon (Count Ten – 18 Pa.C.S.A.
          § 6106.1(a)).[Footnote 2] See (P.T., pp. 2-3).

               [Footnote 1] Count Five (5) of the
               information was dismissed at the
               preliminary   hearing   held    on
               November 26, 2012.

               [Footnote 2] Counts Eleven (11) through
               Thirteen (13) of the information were
               dismissed at the preliminary hearing held
               on November 14, 2012.

                Sentencing was deferred for ninety (90) days
          so that a Pre-sentence Investigation Report could be
          prepared.     On September 3, 2014, this court
          conducted a sentencing hearing, at which time
          [appellant] was sentenced at each case to a period
          of incarceration of forty-two (42) to eighty-four (84)
          months, to be served concurrently. [Appellant] was
          given 347 days of time credit.[Footnote 3] At count
          four (4) at CC# 2012-15251, [appellant] was also
          ordered to serve a period of two (2) years of
          probation to run consecutive to his period of
          incarceration.

               [Footnote   3]   Specifically, at the
               information filed at 2012-15499, the


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                court imposed a sentence of 42 to
                84 months of incarceration at Count One
                (1); No Further Penalty at Counts Two
                (2) and Three (3); and 60 to 90 days of
                incarceration and a $500 fine at Count
                Four (4). This sentence was ordered to
                run concurrently with the sentence
                imposed at 2012-15251, which consisted
                of a 42 to 84 month term of
                incarceration at Count Three (3); a
                consecutive two (2) year term of
                probation at Count Four (4); 60 days of
                incarceration and a $500 fine at Count
                Eight (8); and No Further Penalty at
                Counts Five (5), Seven (7), Nine (9) and
                Ten (10).

                On September 17, 2014, this court granted
          counsel’s motion to withdraw from the case, and the
          Office of the Public Defender was appointed. On
          September      24,   2015,    [appellant]  filed    an
          “Emergency Petition to Accept Post-Sentence Motion
          Nunc Pro Tunc,” (“Emergency Petition”), arguing
          that such relief was necessary so that he could seek
          leave to “withdraw the guilty plea(s) and/or
          challenge the discretionary aspects of sentencing.”
          (Emergency Petition, p. 7). On September 25, 2014,
          the court granted [appellant’s] request to file a
          post-sentence motion nunc pro tunc, but no such
          motion was ever filed. [Appellant] also did not file a
          direct appeal from his judgment of sentence.
          Accordingly, [appellant’s] conviction became final on
          October 3, 2014, when the 30-day window for filing
          a direct appeal had expired. See Commonwealth
          v. Fowler, 930 A.2d 586, 593 (Pa.Super. 2007).

                 On March 20, 2015, [appellant] filed a
          counseled PCRA Petition, alleging that he had
          received ineffective assistance of counsel in
          connection with his guilty plea.          Specifically,
          [appellant] sought to withdraw his guilty plea on the
          grounds that his counsel, Patrick J. Thomassey, Esq.
          (“Counsel”), provided ineffective assistance by:
          (i) promising him a specific sentence of time served


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           in exchange for his guilty plea; (ii) failing to
           adequately consult with him regarding the case and
           the suppression issues involved; and (iii) failing to
           discuss his version of events and the possible
           defenses that could have been raised.          (PCRA
           Petition, 3/20/15, pp. 7-12).

                  The Commonwealth filed its Answer to the
           PCRA Petition on March 25, 2015. Given the nature
           of the allegations involved, an evidentiary hearing on
           the petition was held on April 17, 2015.          Both
           [appellant] and Counsel testified at the hearing.
           After considering the testimony and arguments
           presented, this court denied [appellant’s] request for
           relief from the bench. See (PCRA Hearing Transcript
           (“HT”), 4/17/15, pp. 32-33). On May 12, 2015, this
           court issued a formal order denying the PCRA
           petition.[Footnote 4]

                 [Footnote 4] The court notes that it
                 initially issued an order denying PCRA
                 relief on April 29, 2015. That order,
                 however, was facially defective as it
                 inadvertently failed to advise [appellant]
                 of his appellate rights. Accordingly, the
                 court issued a subsequent order on
                 May 12, 2015, advising [appellant] of his
                 appellate rights.

                On June 11, 2015, [appellant] filed his Notice
           of Appeal. [Appellant] subsequently filed a timely
           “Concise Statement of Errors Complained of on
           Appeal” . . . .

PCRA court opinion, 10/9/15 at 1-4.

     Appellant raises the following issue for our review:

           I.    DID THE PCRA COURT ERR IN DENYING
                 [APPELLANT’S] PCRA PETITION WHEN TRIAL
                 COUNSEL        IMPROPERLY      INDUCED
                 [APPELLANT’S] GUILTY PLEA THROUGH AN
                 UNSUBSTANTIATED    WARNING   BY   TRIAL
                 COUNSEL, FIRST GIVEN ON THE DAY OF


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                       TRIAL, OF PROBABLE FEDERAL PROSECUTION
                       ON THE SAME CHARGES IF [APPELLANT] DID
                       NOT PLEAD GUILTY?

Appellant’s brief at 4.

      In PCRA appeals, our scope of review “is limited to the findings of the

PCRA court and the evidence on the record of the PCRA court’s hearing,

viewed    in     the    light   most   favorable   to   the   prevailing   party.”

Commonwealth v. Sam, 952 A.2d 565, 573 (Pa. 2008) (internal quotation

omitted). Because most PCRA appeals involve questions of fact and law, we

employ a mixed standard of review.         Commonwealth v. Pitts, 981 A.2d

875, 878 (Pa. 2009).        We defer to the PCRA court’s factual findings and

credibility determinations supported by the record.           Commonwealth v.

Henkel, 90 A.3d 16, 20 (Pa.Super. 2014) (en banc).               In contrast, we

review the PCRA court’s legal conclusions de novo. Id.

      Appellant’s issue asserts ineffective assistance of plea counsel.

               In evaluating claims of ineffective assistance of
               counsel, we presume that counsel is effective.
               Commonwealth v. Rollins, 558 Pa. 532, 738 A.2d
               435, 441 (Pa. 1999).            To overcome this
               presumption, Appellant must establish three factors.
               First, that the underlying claim has arguable merit.
               See Commonwealth v. Travaglia, 541 Pa. 108,
               661 A.2d 352, 356 (Pa. 1995). Second, that counsel
               had no reasonable basis for his action or inaction.
               Id. 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.       See Rollins, 738 A.2d at 441;
               Commonwealth v. (Charles) Pierce, 515 Pa. 153,


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             527 A.2d 973, 975 (Pa. 1987). Finally, “Appellant
             must establish that he has been prejudiced by
             counsel’s ineffectiveness; in order to meet this
             burden, he must show that ‘but for the act or
             omission in question, the outcome of the proceedings
             would have been different.’” See Rollins, 738 A.2d
             at 441 (quoting Travaglia, 661 A.2d at 357). A
             claim of ineffectiveness may be denied by a showing
             that the petitioner’s evidence fails to meet any of
             these prongs.       Commonwealth v. (Michael)
             Pierce, 567 Pa. 186, 786 A.2d 203, 221-22 (Pa.
             2001); Commonwealth v. Basemore, 560 Pa. 258,
             744    A.2d     717,    738    n.23    (Pa.   2000);
             Commonwealth v. Albrecht, 554 Pa. 31, 720 A.2d
             693, 701 (Pa. 1998).

Commonwealth v. Washington, 927 A.2d 586, 594 (Pa. 2007).

        In the context of a guilty plea, a claim of ineffectiveness may provide

relief only if the alleged ineffectiveness caused an involuntary or unknowing

plea.    See Commonwealth v. Mendoza, 730 A.2d 503, 505 (Pa.Super.

1999). “[A] defendant is bound by the statements which he makes during

his plea colloquy.” Commonwealth v. Barnes, 687 A.2d 1163, 1167 (Pa.

1997) (citations omitted). As such, a defendant “may not assert grounds for

withdrawing the plea that contradict statements made when he pled guilty.”

Id. (citation omitted). Where the defendant enters a plea on the advice of

counsel, the voluntariness of that plea depends on whether counsel’s advice

fell within the range of competence demanded of attorneys in criminal cases.

Commonwealth v. Moser, 921 A.2d 526, 531 (Pa.Super. 2007) (citation

omitted).




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      Here,    the   record   belies   appellant’s   claim   that   he    pled   guilty

involuntarily because Attorney Thomassey induced his plea.                The record

reflects that Attorney Thomassey advised appellant to plead guilty in order

to avoid the risk of a substantially longer sentence in federal court.

      The PCRA court summarized Attorney Thomassey’s testimony on this

issue as follows:

              . . . Counsel explained that he was informed by law
              enforcement officers that his client had been picked
              up on a federal wiretap and that there was potential
              for a federal indictment.       [Notes of testimony,
              6/4/14 at 7-8.] Counsel explained that he advised
              [appellant] to plead guilty in state court because
              [appellant] would most likely serve “significantly less
              time” for a state court conviction, and that, in his 40
              years of practicing law, he has never had a client
              indicted in federal court if the client first pled guilty
              in state court.     [Id. at 12-13.]      While Counsel
              certainly recognized that a defendant may still be
              subject to a federal indictment regardless of a state
              court plea, he explained that “from a practitioner’s
              point of view, if the Fed[s] are thinking about
              indicting your client, you get them in here and get
              rid of the case.” [Id. at 13.]

PCRA court opinion, 10/9/15 at 13-14.

      Because it was well within the range of competence for counsel to

have advised appellant to plead guilty in state court in order to avoid the

likely risk of a substantially longer sentence in federal court, appellant’s

ineffectiveness claim necessarily fails.

      Moreover, we note that the record demonstrates that appellant read,

completed, and signed an extensive written guilty plea form which is part of



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the record. (Docket #8; notes of testimony, 6/4/14 at 9.) On that form,

appellant affirmed, in writing, among other things, that (i) he fully

understood that his plea must be voluntary and his rights must be

voluntarily, knowingly, and intelligently waived; (ii) no one forced him to

enter the plea and that he did so of his own free will; (iii) no threats were

made to him to enter his plea; and (iv) no one, including his attorney,

promised him anything in exchange for the guilty plea other than the terms

of the plea bargain. (Docket #8.)

     Finally, during an on-the-record oral examination at the time appellant

pled guilty, the following exchange occurred:

           THE COURT: Sir, has anybody, forced, threatened or
           coerced you in any way to make your guilty plea
           here today?

           [APPELLANT]: No, ma’am.

           THE COURT: Has anyone promised you anything to
           make this plea, sir, with the exception of the offer
           extended by the Commonwealth?

           [APPELLANT]: No, ma’am.

           ....

           THE COURT: Sir, you completed for me the Guilty
           Plea Explanation of Defendant’s Rights Form; is that
           correct[?]

           [APPELLANT]: Yes, ma’am.

           THE COURT: Sir, did you complete that form with
           the advice, assistance and supervision of your
           attorney?



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            [APPELLANT]: Yes, ma’am.

            THE COURT:        Did you, sir, answer all of the
            questions in this form truthfully and honestly?

            [APPELLANT]: Yes, ma’am.

Notes of testimony, 6/4/14 at 5, 8.

      Appellant cannot recant the representations he made in court when he

entered his guilty plea. See Barnes, 687 A.2d at 1167. Additionally, the

law does not require that appellant be pleased with the outcome of his

decision to plead guilty.   All that is required is that appellant's decision to

plead guilty be made knowingly, voluntarily and intelligently. See Moser,

921 A.2d at 528-529. Therefore, in viewing the evidence in the light most

favorable to the Commonwealth, we conclude that appellant has failed to

establish that plea counsel was ineffective because the record supports the

PCRA court’s conclusion that appellant made his plea voluntarily, knowingly,

and intelligently on the sound advice of counsel.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/4/2016




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