Case Information

NON -PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, ^[1] IN THE SUPERIOR COURT OF PENNSYLVANIA

Appellee

v.

GREGORY MAURICE WYATT,

Appellant No. MDA 2015 Appeal from the Order October 13, 2015 the Court of Common Pleas of Dauphin County Criminal Division at No.: CP- 22 -CR- 0003361 -2013

BEFORE: PANELLA, J., OLSON, J., and PLATT, J.* FILED OCTOBER 24, 2016

MEMORANDUM BY PLATT, J.:

Appellant, Gregory Maurice Wyatt, appeals, pro se, from October 2015, which dismissed, hearing, counseled petition brought under the Post Conviction Relief Act (PCRA), Pa.C.S.A. §§ 9541 -9546. We affirm. take the underlying facts procedural history this matter

from the court's July 2016 opinion our independent review of the certified record. facts underlying Appellant's conviction stem May 27, murder robbery of acquaintance. N.T. Guilty Plea

Hearing, 6/02/14, -9). On July 26, 2013, the Commonwealth filed * Retired Senior Judge assigned to the Superior Court.

criminal information charging Appellant with murder, robbery, possession of a firearm prohibited, and carrying a firearm without a license.' (See Criminal Information, 7/26/13, at unnumbered page 1). On June 2, 2014, Appellant entered a negotiated guilty to one count each of murder the third degree, robbery, possession of firearm prohibited, carrying a firearm license. (See N.T. Guilty Plea Hearing, at 10). In accordance terms of the plea, trial court immediately sentenced Appellant to aggregate term incarceration not less than twenty -five nor more than fifty years. (See id. at 14 -15).

On June 12, 2014, filed motion withdraw his guilty plea. A took place July 11, 2014. At the hearing, indicated that, when he filed the motion withdraw his guilty murder of the third degree, he did not understand information charged him with murder generally, that, withdrew guilty plea, would expose himself charges including murder of the or second degree. N.T. Motion Hearing, 7/11/14, at -7). Based upon this information, Appellant withdrew motion withdraw plea. file direct appeal.

On June 1, 2015, Appellant, acting pro se, filed timely petition. On June 2015, the court appointed counsel to represent Appellant. ' Pa.C.S.A. §§ 3701(a)(1)(i) (ii), 6105(a)(1), 6106(a)(1), respectively.

J-S77035-16

On July 21, 2015, PCRA submitted a Turner /Finley2 letter. On September 4, 2015, the PCRA court issued notice of its intent to dismiss petition allow PCRA counsel to withdraw, pursuant to Pennsylvania Rule of Criminal Procedure 907(1). Appellant did not file response to the Rule 907 notice but did file motion seeking appointment new counsel, which PCRA court denied. On October 13, 2015, the PCRA court dismissed petition.3 instant, timely appeal followed. On December 29, 2015, PCRA court ordered file concise statement errors complained on appeal. See Pa.R.A.P. 1925(b). Appellant filed timely Rule 1925(b) statement January 15, 2016. On July 6, 2016, the issued an opinion. See Pa.R.A.P. 1925(a)

On appeal, raises the following questions our review. ^[2] Turner, 544 A.2d 927 Commonwealth v. Finley, 550 A.2d 213 Super. (en banc). 1988); In its October 2015 order, the trial court not address counsel's Order, 10/13/15, unnumbered page 1). petition withdraw. However, its Rule 907 notice, trial court specifically found counsel complied the dictates of Turner /Finley announced its withdraw. Order, 9/04/15, at intention allow counsel unnumbered page 1). Given this, interest of judicial economy we will regard as done what ought to have been done deem trial court's September granting counsel's withdraw. See Zitney Appalachian Timber Products, Inc., A.3d 281, 285 (Pa.

J-S77035-16

1. Whether the [PCRA] court erred for dismissing Appellant's [PCRA petition] based on counsel's [Turner /Finley] letter, when Appellant's claims had merit and court failed to make an independent review of the record[,] which violated the mandates of [Turner /Finley]?

2. Whether the [PCRA] court erred dismissing Appellant's [PCRA petition] based counsel's [Turner /Finley] letter, when Appellant's claim not only merit but the [PCRA] failed to conduct [an] evidentiary determine Appellant's [guilty] invalid and undermined by counsel's erroneous advice[ ?]

(Appellant's Brief, at (unnecessary capitalization omitted).4 appeals from the denial of petition. We review the denial of post- conviction determine whether record supports the court's findings whether its otherwise free of legal error. See Faulk, A.3d 1196, 1199 Super. direct Appellant's attention Pa.R.A.P. which addresses requirements for argument section of appellate briefs provides, in relevant part as follows:

Rule 2119. Argument

(a) General Rule. argument shall be divided into many parts as are questions be argued[.] Pa.R.A.P. 2119(a). "The Rules of Appellate Procedure state unequivocally each question appellant raises supported discussion analysis of pertinent authority." Estate of Haiko McGinley, 799 A.2d 2002). Here, Appellant's "Statement of Matters" lists two issues. (Appellant's Brief, at However, the argument portion of his brief combines the issues violation Rule 2119. -18). combination issues presents confusing format, but does not hamper appellate review, we shall proceed our discussion.

J-S77035-16 To eligible for relief pursuant the PCRA, Appellant must

establish, inter a /ia, conviction or sentence resulted one or more of the enumerated errors or defects found in 42 Pa.C.S.A. § 9543(a)(2). Pa.C.S.A. § 9543(a)(2). He must also establish that the issues raised in the PCRA petition have not been previously litigated or waived. See Pa.C.S.A. § 9543(a)(3). An allegation error "is waived if the petitioner could have raised it but failed do so before trial, trial, during unitary review, on appeal or in a prior state postconviction proceeding." Pa.C.S.A. § 9544(b). Further, . a PCRA petitioner is automatically entitled an . .

evidentiary hearing. review the PCRA court's decision dismissing petition without hearing an abuse of discretion.

[T]he right an evidentiary on post - It is within conviction petition not absolute.

PCRA court's discretion to decline to hold hearing if the petitioner's claim patently frivolous and has no support either in record or other evidence. It is responsibility of the reviewing court appeal to examine each issue raised in in light of the record certified before it in to determine if erred its in determination were no genuine issues material fact controversy denying relief conducting evidentiary hearing. Miller, 102 A.3d 988, 992 (citations omitted).

In argument section brief, claims received ineffective assistance of counsel because counsel gave him erroneous

J-S77035-16 advice would only sentence him to term of incarceration of not less than fifteen nor more than thirty years. (See Appellant's Brief, at Appellant also appears contend was coerced into withdrawing motion withdraw guilty because Commonwealth threatened to charge him with murder of the degree. Appellant's Brief, at 17). However, has waived these claims. not include these claims in statement of the questions involved. Brief, at 8). Rules Appellate Procedure provide issues to resolved must be included in statement of questions involved or "fairly suggested" by it. Pa.R.A.P. 2116(a). These issues are not included in statement of questions involved, nor are they "fairly suggested" it. Thus, we hold has waived these claims. Commonwealth v. Harris, 979 A.2d 387, 397 (Pa. Super. 2009) (holding claim waived when not included statement of questions involved). In any event, the claims lack merit

"A criminal defendant has right effective during plea process as well as during trial." Commonwealth Rathfon, 899 A.2d 365, 369 Super. 2006) (citation omitted). Further, "[a]llegations ineffectiveness connection entry will serve basis for relief only if the ineffectiveness caused the defendant enter an involuntary or unknowing plea." Hickman, 799 A.2d (citation omitted). Also, "[w]here the defendant

J-S77035-16 enters his plea on the advice of counsel, voluntariness of the plea depends upon whether counsel's advice within the range of competence demanded of attorneys criminal cases." Id. (internal quotation marks citations omitted). presume counsel is effective, and bears the burden prove otherwise. Commonwealth v. Bennett, A.3d 1195

(Pa. 2012). test for ineffective assistance of counsel is same under both Federal Pennsylvania Constitutions. See Strickland v. Washington, U.S. -88 (1984); Commonwealth v. Jones, 815 A.2d 598, 2002). An appellant must demonstrate that: (1) his underlying claim is of arguable merit; (2) the particular course of conduct pursued have some reasonable basis designed to effectuate interests; (3) but for counsel's ineffectiveness, reasonable probability the outcome of the proceedings would have been different. See Commonwealth Pierce, 786 A.2d 203, 213 2001), abrogated on other grounds, Grant, 813 A.2d 726 (Pa. A failure satisfy any prong of the test for ineffectiveness will require rejection of the claim. See Jones, supra at 611. Where, here, pleaded guilty, satisfy the prejudice requirement, he must show that "there reasonable probability that, but counsel's errors, would not have pleaded would have insisted going to trial." Rathfon, supra at 370 (citation omitted). Here, has not

J-S77035-16 shown that there is arguable merit claim that he received erroneous advice respect the prospective sentence. have held that where the record clearly shows that the court thorough plea colloquy the defendant

conducted understood rights the nature of the charges against him, the is voluntary. See McCauley, 797 A.2d (Pa. In examining whether the defendant understood the nature consequences of plea, we look the totality of the circumstances. At minimum, the court must inquire into the following six areas:

(1) Does the defendant understand the nature of the charges which is pleading guilty? (2) Is factual basis for the plea?

(3) Does the defendant understand he has right trial by jury?

(4) Does defendant understand he is presumed innocent until found guilty?

(5) Is defendant aware of the permissible ranges of sentences and /or fines for the offense charged? Is defendant aware the judge bound by

(6) terms of any agreement tendered unless judge accepts such agreement?

Id. (citation omitted); see also Pa.R.Crim.P. Comment.

Defense counsel or attorney the Commonwealth, permitted the court, may conduct this examination. See Pa.R.Crim.P. 590,

J-S77035-16 Comment. Moreover, the examination may consist of both written colloquy that the defendant read, completed, and signed, and made part of the record; an on- the -record oral examination. See id.

Appellant contends that he received erroneous advice counsel that would sentence him to term incarceration of not less than fifteen nor more than thirty years. (See Appellant's Brief, at 17). However, the record does not support this assertion.

At hearing, the Commonwealth informed Appellant of the maximum possible sentence for each offense, Appellant agreed that understood them. N.T. Guilty Plea Hearing, at 3 -5). The that, under Commonwealth specifically stated the negotiated plea agreement, trial court would sentence aggregate term incarceration of not less than twenty -five nor more than fifty years. (See id. at agreed understood that. (See id.). Following sentencing, the trial court asked sentence accord negotiated plea, defense counsel said it was, did object to this statement. (See at 14 -15).

On July 2014, the trial court held hearing Appellant's motion withdraw plea. At no point during Appellant object sentence or indicate misled him with respect sentence. N.T. Motion Hearing, -10). Further, there nothing record which demonstrates the Commonwealth coerced

J-S77035-16 into withdrawing his motion to withdraw his guilty plea. Rather, Commonwealth specifically stated that it had "no objection" to Appellant withdrawing guilty plea. (See id. at 2). Defense counsel then stated that he explained to that he withdrew his guilty plea, Commonwealth would pursue charge of murder of the first degree. (See id. at 3). When questioned, Appellant affirmatively stated that he wished to withdraw his motion because he had previously understood that he could facing charges murder of the or second degree. (See id. at Thus, claims that he received incorrect advice with respect to his sentence that he was threatened and /or coerced into withdrawing motion withdraw his guilty lack merit. totality of the

Moreover, the record demonstrates that, in circumstances, Appellant's plea was voluntary, knowing intelligent. Appellant, after being informed of all his rights, stated that he plead guilty. (See N.T. Guilty Plea Hearing, at 7). He wished acknowledged at colloquy that he understood that he giving up right trial jury or by the court sitting the finder fact; relinquishing right file pre -trial motions; knew the sentencing ranges. id. at 3 -7). He stated no one forced or threatened him. id. at 8). agreed understood court could sentence him consecutive sentences would have limited appellate rights. (See -7).

- - The statements made during plea colloquy bind a criminal defendant. See Commonwealth Muhammad, 794 A.2d 378, 384 (Pa. Super. Thus, defendant cannot assert grounds for withdrawing plea that contradict statements made at that time. See Commonwealth v. Stork, 737 A.2d 789, 790 -91 (Pa. Super. 1999), appeal denied, 764 A.2d 2000). Further, "[t]he law does not require that appellant be pleased the outcome of decision to enter plea of guilty: 'All that is required is that [appellant's] decision to plead knowingly, voluntarily intelligently made. ' Yager, 685 A.2d 1000, 1004 1996) (en banc), appeal denied, A.2d 577 (Pa. (citation omitted). Here, nothing record to support contention was either coerced or invalid. See McCauley, supra at 922. Thus, claim received ineffective assistance of counsel lacks merit. See Jones, supra at 611. also argues PCRA erred dismissing his

petition without an evidentiary hearing. (See Appellant's Brief, at Pennsylvania Rules of Criminal Procedure provide the PCRA court with the discretion dismiss without an evidentiary it patently merit. See Pa.R.Crim.P. 907. Because Appellant's ineffective assistance claims lack merit, court properly found entitled evidentiary hearing. Miller, supra at 992.

Accordingly, for reasons discussed above, we affirm PCRA court's dismissal of Appellant's hearing.

Order affirmed.

Judgment Entered.

/

J seph D. Seletyn,

Prothonotary

Date: 10/24/2016

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