J-S72004-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
v.
JODY GORDON
Appellant No. 1959 MDA 2015
Appeal from the PCRA Order October 23, 2015 In the Court of Common Pleas of York County Criminal Division at No(s): CP-67-CR-0007467-2013
BEFORE: GANTMAN, P.J., DUBOW, J., and STRASSBURGER, J.*
MEMORANDUM BY GANTMAN, P.J.: FILED FEBRUARY 22, 2017
Appellant, Jody Gordon, appeals from the order entered in the York
County Court of Common Pleas, which denied his first petition filed pursuant
to the Post Conviction Relief Act (“PCRA”).1 We affirm and grant counsel’s
petition to withdraw.
The relevant facts and procedural history of this case are as follows.
On July 9, 2014, Appellant entered an open guilty plea to one count of
possession with intent to deliver a controlled substance (“PWID”), in
connection with Appellant’s sale of 6.4 grams of cocaine to a confidential
informant (“C.I.”) on July 9, 2013. Appellant executed a written guilty plea
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1 42 Pa.C.S.A. §§ 9541-9546.
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*Retired Senior Judge assigned to the Superior Court. J-S72004-16
colloquy confirming his plea was voluntary. The written plea colloquy made
clear Appellant was entering an open guilty plea, leaving Appellant’s
sentence to the discretion of the trial court. Appellant expressly
acknowledged that the court could impose Appellant’s sentence consecutive
to any other sentence Appellant might be serving. During the oral guilty
plea colloquy, the court recited the factual basis for the plea; and Appellant
agreed he was guilty of the crime charged. The court twice reiterated there
was no agreement as to sentencing. Additionally, notwithstanding
Appellant’s statements in some earlier proceedings that he was dissatisfied
with plea counsel, Appellant agreed he wanted to plead guilty despite any
reservations or complaints about plea counsel. At the conclusion of the
guilty plea colloquy, the court accepted Appellant’s plea as knowing,
intelligent, and voluntary. The court deferred sentencing for preparation of
a pre-sentence investigation (“PSI”) report.
On July 29, 2014, Appellant appeared for sentencing in the current
PWID case and for sentencing at docket number CP-67-CR-0005473-2013
(“docket 5473-2013”), in relation to convictions for persons not to possess
firearms and receiving stolen property (“RSP”). The Commonwealth
recommended that the court impose an aggregate sentence of 5-10 years’
imprisonment at docket 5473-2013, and a sentence of 2½-5 years’
imprisonment in the current PWID case, to run consecutively. Defense
counsel argued for concurrent sentences. The court noted Appellant was
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also serving at that time a 5-10 year sentence at a third docket number, CP-
67-CR-0001636-2012 (“docket 1636-2012”).2 The court sentenced
Appellant at docket 5473-2013, to 5-10 years’ imprisonment for the persons
not to possess conviction, plus a concurrent 1-2 year sentence for RSP. The
court imposed the sentence at docket 5473-2013 concurrent to the sentence
Appellant was already serving at docket 1636-2012. In the present PWID
case, the court sentenced Appellant to 2½-5 years’ imprisonment,
consecutive to the sentence at docket 5473-2013. Appellant did not file
post-sentence motions or a direct appeal.
On February 5, 2015, Appellant filed a timely pro se PCRA petition
alleging plea counsel’s ineffectiveness, and he filed an amended pro se
petition on July 31, 2015. The PCRA court appointed counsel on August 14,
2015 (“PCRA counsel”). On October 23, 2015, the court held a PCRA
hearing, during which plea counsel and Appellant testified. At the conclusion
of the hearing, the court denied PCRA relief. Appellant timely filed a notice
of appeal on November 9, 2015. On November 25, 2015, the court ordered
Appellant to file a concise statement of errors complained of on appeal
pursuant to Pa.R.A.P. 1925(b); Appellant complied.
On April 22, 2016, PCRA counsel (who is also appellate counsel) filed,
in this Court, an application to withdraw as counsel and an accompanying ____________________________________________
2 Appellant committed the PWID offense at issue while he was on trial at docket 1636-2012.
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appellate brief pursuant to Commonwealth v. Turner, 518 Pa. 491, 544
A.2d 927 (1988) and Commonwealth v. Finley, 550 A.2d 213 (Pa.Super.
1988) (en banc). In his Turner/Finley brief, counsel raised one issue on
appeal (plea counsel’s alleged ineffective assistance for promising Appellant
a concurrent sentence if he pled guilty) and explained why that issue lacked
merit. Appellant subsequently filed a pro se responsive brief, claiming
counsel had failed to address other issues raised in Appellant’s PCRA
petition, which Appellant wanted to advance on appeal. Because counsel did
not list those issues in his Turner/Finley brief and explain why they lacked
merit, this Court concluded counsel had failed to comply with the technical
requirements of Turner/Finley. Consequently, on December 8, 2016, this
Court denied counsel’s April 22, 2016 application to withdraw and remanded
the matter with instructions for counsel to file (1) an advocate’s brief, or (2)
a compliant Turner/Finley brief, additionally addressing the other issues
enumerated in Appellant’s pro se responsive brief, with an accompanying
As a prefatory matter, on January 9, 2017, appellate counsel filed a
new application to withdraw and a supplemental Turner/Finley brief.
Before counsel can be permitted to withdraw from representing a petitioner
under the PCRA, Pennsylvania law requires counsel to file a “no-merit” brief
or letter pursuant to Turner and Finley. Commonwealth v. Karanicolas,
836 A.2d 940 (Pa.Super. 2003).
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[C]ounsel must…submit a “no-merit” letter to the [PCRA] court, or brief on appeal to this Court, detailing the nature and extent of counsel’s diligent review of the case, listing the issues which the petitioner wants to have reviewed, explaining why and how those issues lack merit, and requesting permission to withdraw.
Counsel must also send to the petitioner: (1) a copy of the “no-merit” letter/brief; (2) a copy of counsel’s petition to withdraw; and (3) a statement advising petitioner of the right to proceed pro se or by new counsel.
If counsel fails to satisfy the foregoing technical prerequisites of Turner/Finley, the court will not reach the merits of the underlying claims but, rather, will merely deny counsel’s request to withdraw. Upon doing so, the court will then take appropriate steps, such as directing counsel to file a proper Turner/Finley request or an advocate’s brief.
Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa.Super. 2007) (internal
citations omitted). “Substantial compliance with these requirements will
satisfy the criteria.” Karanicolas, supra at 947.
Instantly, counsel’s January 9, 2017 motion to withdraw as counsel,
and Turner/Finley brief, detail the nature of counsel’s review and explain
why all the issues raised in Appellant’s pro se responsive brief lack merit.
Counsel’s brief also demonstrates he reviewed the certified record and found
no meritorious issues for appeal. Counsel notified Appellant of counsel’s
request to withdraw and advised Appellant regarding his rights. Thus,
counsel substantially complied with the Turner/Finley requirements. See
Wrecks, supra; Karanicolas, supra.
Counsel raises the following issues in the supplemental brief filed on
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appeal:
WHETHER THE PCRA COURT ERRED IN DENYING APPELLANT’S PCRA PETITION WHEN APPELLANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL SUCH THAT HE UNKNOWINGLY OR INVOLUNTARILY ENTERED A PLEA OF GUILTY?
WHETHER THE PCRA COURT ERRED IN DENYING APPELLANT’S PCRA PETITION WHEN COUNSEL WAS INEFFECTIVE FOR FAILING TO MOVE FOR DISMISSAL OF THE CHARGES BASED ON PREJUDICIAL PREARREST DELAY?
WHETHER THE PCRA COURT ERRED IN DENYING APPELLANT’S PCRA PETITION WHEN COUNSEL WAS INEFFECTIVE FOR FAILING TO PROVIDE APPELLANT WITH PRETRIAL DISCOVERY MATERIAL?
WHETHER THE PCRA COURT ERRED IN DENYING APPELLANT’S PCRA PETITION WHEN COUNSEL WAS INEFFECTIVE FOR FAILING TO ADVISE APPELLANT ON THE AVAILABILITY OF AN ALIBI DEFENSE?
WHETHER THE PCRA COURT ERRED IN DENYING APPELLANT’S PCRA PETITION WHEN COUNSEL WAS INEFFECTIVE FOR FAILING TO CHALLENGE APPELLANT’S ALLEGED MANDATORY MINIMUM SENTENCE?
WHETHER THE PCRA COURT ERRED IN DENYING APPELLANT’S PCRA PETITION WHEN COUNSEL WAS INEFFECTIVE FOR FAILING TO FILE A POST-SENTENCE MOTION AND/OR DIRECT APPEAL ON APPELLANT’S BEHALF?
(Supplemental Turner/Finley Brief at 4).
Our standard of review of the denial of a PCRA petition is limited to
examining whether the record evidence supports the court’s determination
and whether the court’s decision is free of legal error. Commonwealth v.
Ford, 947 A.2d 1251 (Pa.Super. 2008), appeal denied, 598 Pa. 779, 959
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A.2d 319 (2008). This Court grants great deference to the findings of the
PCRA court if the record contains any support for those findings.
Commonwealth v. Boyd, 923 A.2d 513 (Pa.Super. 2007), appeal denied,
593 Pa. 754, 932 A.2d 74 (2007). If the record supports a post-conviction
court’s credibility determination, it is binding on the appellate court.
Commonwealth v. Dennis, 609 Pa. 442, 17 A.3d 297 (2011).
For purposes of disposition, we combine Appellant’s issues. Appellant
argues plea counsel was ineffective in the following ways: (1) plea counsel
promised Appellant the court would impose his PWID sentence concurrent to
the sentence at docket 5473-2013, which caused Appellant to enter an
unknowing and involuntary guilty plea; (2) plea counsel failed to move for
dismissal of the charges based on “prejudicial pre-arrest delay”;3 (3) plea
counsel did not provide Appellant with pre-trial discovery; (4) plea counsel
failed to advise Appellant on the availability of an alibi defense; (5) plea
counsel did not challenge Appellant’s alleged mandatory minimum sentence;
and (6) plea counsel neglected to file a post-sentence motion and/or direct
appeal on Appellant’s behalf. We disagree with Appellant’s contentions.
The law presumes counsel has rendered effective assistance.
Commonwealth v. Gonzalez, 858 A.2d 1219, 1222 (Pa.Super. 2004),
3 At the PCRA hearing, Appellant claimed plea counsel was ineffective for failing to file a pre-trial suppression motion or motion to dismiss based on a lack of evidence. Appellant did not argue pre-arrest delay.
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appeal denied, 582 Pa. 695, 871 A.2d 189 (2005). To prevail on a claim of
ineffective assistance of counsel, a petitioner must show, by a
preponderance of the evidence, ineffective assistance of counsel which, in
the circumstances of the particular case, so undermined the truth-
determining process that no reliable adjudication of guilt or innocence could
have taken place. Commonwealth v. Turetsky, 925 A.2d 876 (Pa.Super.
2007), appeal denied, 596 Pa. 707, 940 A.2d 365 (2007). The petitioner
must demonstrate: (1) the underlying claim has arguable merit; (2) counsel
lacked a reasonable strategic basis for his action or inaction; and (3) but for
the errors and omissions of counsel, there is a reasonable probability that
the outcome of the proceedings would have been different. Id. at 880.
“The petitioner bears the burden of proving all three prongs of the test.” Id.
“Where it is clear that a petitioner has failed to meet any of the three,
distinct prongs of the…test, the claim may be disposed of on that basis
alone, without a determination of whether the other two prongs have been
met.” Commonwealth v. Steele, 599 Pa. 341, 360, 961 A.2d 786, 797
(2008).
“Allegations of ineffectiveness in connection with the entry of a guilty
plea will serve as a basis for relief only if the ineffectiveness caused the
defendant to enter an involuntary or unknowing plea.” Commonwealth v.
Moser, 921 A.2d 526, 531 (Pa.Super. 2007) (quoting Commonwealth v.
Hickman, 799 A.2d 136, 141 (Pa.Super. 2002)). “Where the defendant
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enters his plea on the advice of counsel, the voluntariness of the plea
depends on whether counsel’s advice was within the range of competence
demanded of attorneys in criminal cases.” Moser, supra. Pennsylvania law
does not require the defendant to “be pleased with the outcome of his
decision to enter a plea of guilty[; a]ll that is required is that his decision to
plead guilty be knowingly, voluntarily and intelligently made.” Id. at 528-
29. A guilty plea will be deemed valid if the totality of the circumstances
surrounding the plea shows that the defendant had a full understanding of
the nature and consequences of his plea such that he knowingly and
intelligently entered the plea of his own accord. Commonwealth v.
Fluharty, 632 A.2d 312 (Pa.Super. 1993). Pennsylvania law presumes the
defendant is aware of what he is doing when he enters a guilty plea, and the
defendant bears the burden to prove otherwise. Commonwealth v.
Pollard, 832 A.2d 517, 523 (Pa.Super. 2003). Mere disappointment in the
sentence does not constitute the necessary “manifest injustice” to render the
defendant’s guilty plea involuntary. Id. at 522. See also Commonwealth
v. Kelly, 5 A.3d 370, 377 (Pa.Super. 2010), appeal denied, 613 Pa. 643, 32
A.3d 1276 (2011) (reiterating principle that courts discourage entry of plea
as sentence-testing device).
With respect to a claim of ineffective assistance of counsel for failure
to call a witness, this Court has stated:
When raising a failure to call a potential witness claim, the PCRA petitioner satisfies the performance and prejudice
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requirements of the [ineffective assistance of counsel] test by establishing that:
(1) the witness existed; (2) the witness was available to testify for the defense; (3) counsel knew of, or should have known of, the existence of the witness; (4) the witness was willing to testify for the defense; and (5) the absence of the testimony of the witness was so prejudicial as to have denied the defendant a fair trial.
Commonwealth v. Washington, 592 Pa. 698, [721,] 927 A.2d 586, 599 (2007). To demonstrate…prejudice, the PCRA petitioner must show how the uncalled [witness’] testimony would have been beneficial under the circumstances of the case.
Commonwealth v. Johnson, 600 Pa. 329, 351-52, 966 A.2d 523, 536
(2009) (some internal citations and quotation marks omitted).
An alibi is “a defense that places the defendant at the relevant time in
a different place than the scene involved and so removed therefrom as to
render it impossible for him to be the guilty party.” Commonwealth v.
Rainey, 593 Pa. 67, 98, 928 A.2d 215, 234 (2007) (internal citations
omitted). “To show ineffectiveness for not presenting alibi evidence,
Appellant must establish that counsel could have no reasonable basis for his
act or omission.” Id.
Where a PCRA petitioner claims counsel was ineffective for failing to
file post-sentence motions, the petitioner must plead and prove he asked
counsel to file post-sentence motions on his behalf, counsel refused his
request, counsel lacked a rational basis for his refusal, and prejudice.
Commonwealth v. Reaves, 592 Pa. 134, 923 A.2d 1119 (2007). On the
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other hand, where a PCRA petitioner claims counsel was ineffective for
failing to file a direct appeal, the petitioner must plead and prove only that
he asked counsel to file a direct appeal on his behalf and counsel
unjustifiably refused the petitioner’s request, that is, counsel lacked a
rational basis for refusing the request. Commonwealth v. Lantzy, 558 Pa.
214, 736 A.2d 564 (1999) (holding where there is unjustified failure to file
requested direct appeal, conduct of counsel falls beneath range of
competence demanded of attorneys in criminal cases and denies appellant
effective assistance of counsel; in these circumstances, prejudice is
presumed and PCRA petitioner need not establish prejudice under general
ineffectiveness test).
Instantly, the court held a PCRA hearing on October 23, 2015. At the
beginning of the hearing, PCRA counsel conceded Appellant’s PWID sentence
did not include a mandatory minimum. Appellant testified, inter alia: (1)
plea counsel did not provide him with discovery before Appellant entered his
guilty plea; Appellant said he would not have pled guilty if he reviewed the
discovery beforehand because the discovery showed the Commonwealth had
no surveillance footage4 or pre-marked money to use as evidence against
him; (2) plea counsel failed to file a “suppression motion”; Appellant insisted
the Commonwealth had no pictures of the transaction between Appellant ____________________________________________
4 The affidavit of probable cause indicates the police physically observed the drug transaction.
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and the C.I., so a pre-trial motion could have secured dismissal of the case;
(3) plea counsel promised Appellant the court would impose his PWID
sentence concurrent to other sentences Appellant was serving or facing;
Appellant acknowledged the written guilty plea stating the plea was open as
to sentencing, but Appellant claimed he completed the written guilty plea
based solely on plea counsel’s representations that Appellant would receive
concurrent sentences; and (4) Appellant was somewhere else at the time of
the crime, so he is innocent of PWID. (See N.T. PCRA Hearing, 10/23/15, at
6-23).
Plea counsel testified, inter alia: (1) he made clear to Appellant the
plea agreement was open as to sentencing; plea counsel did not promise
Appellant anything in terms of sentencing; plea counsel informed Appellant
the court might run his sentences concurrently, but counsel did not
guarantee that result; (2) plea counsel did not file a pre-trial suppression
motion because it would have lacked merit; (3) plea counsel admitted he did
not provide Appellant with discovery immediately, but he confirmed
Appellant had all discovery prior to entering his guilty plea; (4) plea counsel
did not pursue an alibi defense because Appellant failed to supply him with
the names of Appellant’s alleged alibi witnesses; Appellant gave counsel only
Appellant’s wife’s contact information, but counsel could not get in touch
with her; (5) Appellant and plea counsel had a lengthy discussion about
Appellant’s decision to plead guilty; following sentencing, Appellant was
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unhappy with his sentence and complained about his sentence to counsel;
plea counsel told Appellant that plea counsel did not believe Appellant had
any appealable issues; Appellant agreed with counsel that there was no
reason to file post-sentence motions or an appeal in this case; Appellant
asked plea counsel to file post-sentence motions and an appeal in another
case (at docket 1636-2012), but Appellant made no request in this PWID
case; and (6) plea counsel had conversations with the District Attorney
about Appellant entering a negotiated guilty plea with a concurrent sentence
recommendation but those conversations involved one of Appellant’s other
cases, not this PWID case. (Id. at 25-54).
During argument from counsel, PCRA counsel conceded Appellant’s
issue regarding the filing of a pre-trial suppression motion merited no relief.
At the conclusion of the PCRA hearing, the court stated:
Right. All right, well, [the court] listened carefully to the testimony. The [c]ourt does recall [Appellant’s] cases, and we’re here today on a Post-Conviction [Relief] Act petition.
The thrust of the argument is that [Appellant] was denied effective assistance of counsel, and [the court] would note that the Post-Conviction [Relief] Act requires that to sustain a claim for ineffective assistance of counsel, [Appellant] must demonstrate that [Appellant] was denied the effective assistance of counsel to such an extent that it so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have been taken. That’s directly from the Post-Conviction Relief Act.
The case law further states that the presumption is that counsel is effective and that the burden of proving that this presumption is false rests with [Appellant].
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The issues here are several. I think [the court] can summarize them. The one is that a motion to suppress wasn’t filed. [The court does not] see any indication that there was merit to that claim and that [a motion] would have provided a different result in the case.
There’s also the issue of discovery, and while we could have a debate as to when that should have been provided, when it could have been provided, it was, in fact, made available to [Appellant]. [The court believes] the transcript from prior court proceedings indicates that was provided, and, again, it may not have been provided as early as [Appellant] would have wished, but, again, [the court does not] see that would have changed the outcome of the case.
The main issue is the issue of his entering a guilty plea. Clearly [Appellant] did not get the result that he was looking for or expecting, and he is not happy about what the [c]ourt’s sentence was. Particularly that’s the fact that the gun charge was made consecutive. [The court thinks it] made clear during [the] colloquy that there was no promise for any particular sentence, either an amount or concurrent. I can state for the record that it’s the practice of this [c]ourt that when there are guns involved, they typically get consecutive sentences because of what we perceive as the threat to the safety of the community.
So the issue is, was [Appellant] denied the effective assistance of counsel, if at all, to the extent that it undermined the truth-determining process and that no reliable adjudication of guilt or innocence could have occurred. [The court] cannot find that. [The court does not] believe that did occur. [The court is] going to deny the motion for post-conviction relief at this time.
(Id. at 63-65). In its Rule 1925(a) opinion, the PCRA court reiterated:
[The court] did not find that [plea counsel’s] supposed failure to file a suppression motion would have led to a different result and so Appellant failed the third prong of the test for ineffectiveness of counsel. [The court] did not find that there was a substantially greater chance of a favorable outcome for Appellant if [plea counsel] had
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provided discovery to Appellant earlier in the process, which necessarily meant that Appellant failed the third prong of the test for ineffectiveness of that particular claim. And [the court] could not find counsel ineffective for his supposed assurances to Appellant that Appellant would not receive a consecutive sentence where Appellant was confronted by our thorough colloquy advising him repeatedly that with an open plea no one could provide Appellant assurances as to the actual sentence. Appellant, again, failed the third prong of the test for ineffectiveness of counsel.
(PCRA Court Opinion, filed February 4, 2016, at 5) (internal citations
omitted) (emphasis in original). The record supports the PCRA court’s
analysis. See Ford, supra; Boyd, supra. Therefore, Appellant failed to
satisfy the ineffectiveness test on his claims that plea counsel’s promise of
concurrent sentences caused Appellant to enter an unknowing plea; plea
counsel failed to file a pre-trial suppression motion or motion to dismiss for
lack of evidence; and plea counsel did not provide Appellant with pre-trial
discovery.5 See Steele, supra; Turetsky, supra.
Regarding Appellant’s claim that plea counsel failed to advise Appellant
on the availability of an alibi defense, plea counsel testified at the PCRA
5 To the extent Appellant challenges on appeal counsel’s failure to move for dismissal of the charges based on “prejudicial pre-arrest delay,” Appellant abandoned that claim at the PCRA hearing. Moreover, the record shows Appellant’s PWID offense occurred on July 9, 2013, while Appellant was on trial at docket 1636-2012. The Commonwealth filed a criminal complaint charging Appellant with PWID on September 11, 2013. Appellant’s preliminary arraignment was scheduled for the next day. Appellant offers no legal basis to suggest that a two-month delay in his arrest warranted dismissal of his case.
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hearing that Appellant supplied no contact information for his purported alibi
witnesses except for his wife, whom plea counsel could not reach.
Additionally, Appellant alleged in his pro se PCRA petition that his wife,
Quinton Jacobs, and Ryan Dell Nesbit would all offer testimony at the PCRA
hearing to support Appellant’s alibi claim. Nevertheless, Appellant presented
only his own testimony at the PCRA hearing and merely stated he was
somewhere else at the time of the PWID offense. Thus, Appellant failed to
satisfy the ineffectiveness test on this claim. See Johnson, supra;
Washington, supra.
With respect to Appellant’s claim that plea counsel failed to challenge
the mandatory minimum sentence, PCRA counsel conceded at the PCRA
hearing that Appellant did not receive a mandatory minimum sentence for
his PWID conviction. Thus, the record belies this ineffectiveness claim.
Concerning Appellant’s claim that plea counsel failed to file post-
sentence motions and/or a direct appeal on Appellant’s behalf, Appellant did
not plead in his pro se PCRA petition or in his amended PCRA petition that he
asked counsel to file post-sentence motions or a direct appeal on his behalf
or that plea counsel was ineffective for failing to consult with Appellant about
whether he wanted to pursue post-sentencing or appellate review. See
Reaves, supra; Lantzy, supra. Additionally, plea counsel testified at the
PCRA hearing that Appellant agreed there was no reason to file post-
sentence motions or an appeal in this case. Plea counsel further stated that
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Appellant had asked him to file post-sentence motions and an appeal at
docket 1636-2012, but Appellant made no request in this PWID case. The
court’s order denying PCRA relief indicates the court credited plea counsel’s
testimony. See Dennis, supra. Consequently, Appellant’s final
ineffectiveness of counsel claim fails. See Reaves, supra; Lantzy, supra.
Following our independent examination of the record, we conclude the
appeal is frivolous and affirm; we grant counsel’s petition to withdraw.
Order affirmed; counsel’s petition to withdraw is granted.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 2/22/2017
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