Com. v. Komrowski, B.

Opinion

J-S48035-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

BOBBY LEE KOMROWSKI,

Appellant No. 19 MDA 2014

Appeal from the PCRA Order November 7, 2013 in the Court of Common Pleas of Luzerne County Criminal Division at No.: CP-40-CR-0004433-2007

BEFORE: DONOHUE, J., JENKINS, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.: FILED SEPTEMBER 09, 2014

Appellant, Bobby Lee Komrowski, appeals from the order of November

7, 2013, which denied, following a hearing, his first petition brought under

the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. Counsel

has filed a motion to withdraw. For the reasons discussed below, we grant

ffirm the denial of the PCRA petition as

untimely.

On February 19, 2009, Appellant entered a negotiated guilty plea to

one count of murder in the third degree. The charge arose from the

-girlfriend on October 10, 2007. Appellant

waived his right to a pre-sentence investigation report and was sentenced in ____________________________________________

* Retired Senior Judge assigned to the Superior Court. J-S48035-14

accordance with the terms of the plea bargain to a term of incarceration of

not less than twenty nor more than forty years. Appellant filed a timely

motion to withdraw his guilty plea, which the trial court denied on March 20,

2009. Appellant filed a timely direct appeal, and on February 10, 2011, this

Court affirmed the judgment of sentence. (See Commonwealth v.

Komrowski, 24 A.3d 451 (Pa. Super. 2011) (unpublished memorandum)).

Appellant did not seek leave to appeal to the Pennsylvania Supreme Court.

On November 15, 2011, Appellant, acting pro se, filed the instant,

timely PCRA petition. The PCRA court appointed counsel on December 8,

2011. The Commonwealth filed a response to the PCRA petition on April 18,

2012. The PCRA court held a hearing on July 11, 2013 and September 9,

2013. On November 7, 2013, the PCRA court denied Appellan

petition. Appellant filed the instant, timely appeal.1

-appointed counsel has petitioned this

Court for permission to withdraw and has submitted a Turner/Finley2-

compliant brief. Appellant has not responded to the petition to withdraw.

Court-appointed counsel who seeks to withdraw from representing an

____________________________________________

1 The PCRA court did not order Appellant to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). See Pa.R.A.P. 1925. The PCRA court did file an opinion on January 14, 2014. See Pa.R.A.P. 1925(a). 2 See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).

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appellant on appeal of a denial of a PCRA petition on the basis that the

appeal lacks merit must review the case zealously. See Commonwealth

v. Wrecks, 931 A.2d 717, 721 (Pa. Super. 2007).

Turner/Finley - the trial court, or brief on appeal to this Court, detailing the

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 - withdraw; and (3) a statement advising petitioner of the right to proceed pro se or by new counsel.

Id. (citations omitted).

In the instant matter, counsel has filed a brief. See Anders v.

California, 386 U.S. 738 (1967).3 However, counsel has substantially

complied with the dictates of Turner/Finley. (See Petition to Withdraw as

Counsel, 5/20/14, at unnumbered pages 1-2).

When this Court receives a Turner/Finley brief, we conduct an

independent review of the record in light of the PCRA petition and the issues

set forth within it, as well as of the contents of the petition of counsel to

3 We note that a Turner/Finley no-merit letter rather than a brief is the correct filing. See Turner, supra; Finley, supra. Since an Anders brief provides greater protection to a defendant, this Court may accept an Anders brief instead of a Turner/Finley letter. See Commonwealth v. Widgins, 29 A.3d 816, 817 n. 2 (Pa. Super. 2011).

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withdraw. See Wrecks, supra at 721. We will grant the petition to

withdraw, where, as here, we agree with counsel that the petition is

meritless. See id.

On appeal, the Turner/Finley brief raises the following question for

our review:

I. Whether [t]rial [c]ounsel was ineffective in permitting Appellant to enter his guilty plea[?]

Our standard of review for an order denying PCRA relief is well

settled:

order is whether the determination of the PCRA court is supported by the evidence of record and is free of legal error. Great deference is granted to the findings of the PCRA court, and these findings will not be disturbed unless they have no support in the certified record.

Commonwealth v. Carter, 21 A.3d 680, 682 (Pa. Super. 2011) (citations

and quotation marks omitted).

Appellant claims that he received ineffective assistance of plea

counsel. (See -

Commonwealth v. Rathfon, 899 A.2d 365, 369 (Pa. Super. 2006) (citation

ess in connection with the

entry of a guilty plea will serve as a basis for relief only if the ineffectiveness

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Commonwealth v. Hickman, 799 A.2d 136, 141 (Pa. Super. 2002)

(citation omitted)

advice of counsel, the voluntariness of the plea depends upon whether

Id. (internal quotation marks and citations omitted).

We presume that counsel is effective, and Appellant bears the burden

to prove otherwise. See Commonwealth v. Bennett, 57 A.3d 1185, 1195

(Pa. 2012). The test for ineffective assistance of counsel is the same under

both the Federal and Pennsylvania Constitutions. See Strickland v.

Washington, 466 U.S. 668, 687-88 (1984); Commonwealth v. Jones,

815 A.2d 598, 611 (Pa. 2002). Appellant must demonstrate 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

reasonable probability that the outcome of the proceedings would have been

different. See Commonwealth v. Pierce, 786 A.2d 203, 213 (Pa. 2001),

abrogated on other grounds, Commonwealth v. Grant, 813 A.2d 726 (Pa.

2002). A failure to satisfy any prong of the test for ineffectiveness will

require rejection of the claim. See Jones, supra at 611. Where, as here,

Appellant pleaded guilty, in order to satisfy the prejudice requirement, he

errors, he would not have pleaded guilty and would have insisted on going to

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Rathfon, supra at 370 (citation omitted). Appellant has utterly

failed to do so.

Here, at his PCRA hearing, Appellant vaguely claimed plea counsel

refused to discuss trial strategy, would not answer his questions, and that

his will was overborn, forcing him to plead guilty. (N.T. PCRA Hearing,

7/11/13, at 7-10, 19-20, 29, 33, 53-54). However, Appellant stated several

times at the PCRA hearing that he stabbed the victim to death, and that he

had admitted stabbing the victim to the 911 operator and several of the

investigating officers. (See id. at 8, 31-32, 35-36, 39-40, 42-43). Moreover,

he reiterated that he believed that he was not guilty of murder in the third

degree, because he disagreed with the facts as stated by the Commonwealth

at the time of his guilty plea. (See id. at 8-9, 18-20, 30-31, 53-54).

We have held that where the record clearly shows that the court

conducted a thorough guilty plea colloquy and that the defendant

understood his rights and the nature of the charges against him, the plea is

voluntary. See Commonwealth v. McCauley, 797 A.2d 920, 922 (Pa.

Super. 2001). In examining whether the defendant understood the nature

and consequences of his plea, we look to the totality of the circumstances.

See id. At a minimum, the trial court must inquire into the following six

areas:

(1) Does the defendant understand the nature of the charges to which he is pleading guilty?

(2) Is there a factual basis for the plea?

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

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

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

(6) Is the defendant aware that the judge is not bound by the terms of any plea agreement tendered unless the judge accepts such agreement?

Id. (citation omitted); see also Pa.R.Crim.P. 590, Comment.

Defense counsel or the attorney for the Commonwealth, as permitted

by the court, may conduct this examination. See Pa.R.Crim.P. 590,

Comment. Moreover, the examination may consist of both a written

colloquy that is read, completed, signed by the defendant, and made a part

of the record; and an on-the-record oral examination. See id.

Here, Appellant signed a written plea colloquy and engaged in an oral

colloquy with the trial court. (See Written Guilty Plea, 2/19/09, at 13; N.T.

Guilty Plea Hearing, 2/19/09, at 2-53). At the guilty plea hearing, Appellant

testified that his plea was voluntary, he had consulted with counsel, and he

See N.T. Guilty Plea Hearing,

supa at 14, 22, 33, 42). Appellant also testified that he had read and

understood the written guilty plea colloquy. (See id. at 7). Appellant did

not make a

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Id. at 22; see also id. at 14, 23). In the

written colloquy, Appellant indicated that he understood the charges against

him and understood the nature of his plea, his rights and what rights he was

4 representation. (See Written Guilty Plea, supra at 2-13). Appellant

specifically agreed that he was entering the plea of his own free will and that

no one had forced him to plead guilty. (See id. at 2, 9).

The statements made during a plea colloquy bind a criminal defendant.

See Commonwealth v. Muhammad, 794 A.2d 378, 384 (Pa. Super.

2002). Thus, a defendant cannot assert grounds for withdrawing the 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

1068 (Pa. 2000). Further, w does not require that appellant be

Commonwealth v. Yager, 685 A.2d

1000, 1004 (Pa. Super. 1996) (en banc), appeal denied, 701 A.2d 577 (Pa. ____________________________________________

4 Based upon the testimony at the PCRA hearing, it appears that Appellant had three main disputes with the facts underlying his guilty plea: the number of times he stabbed the victim; whether he was in violation of a Protection from Abuse order at the time of the stabbing, and if his actions were malicious. (See N.T. PCRA Hearing, 7/11/13, at 19, 24-30, 43-48). Appellant admitted that all three of these issues had been addressed at the guilty plea hearing. (See id. at 43-48; see also N.T. Guilty Plea Hearing, 2/19/09, at 9-11, 39-41).

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1997) (citation omitted). Here, Appellant has not shown that his decision to

enter the guilty plea was involuntary. He has therefore failed to prove

prejudice. Thus, his claim of ineffective assistance of plea counsel lacks

merit. Further, this Court has conducted an independent review of the

record as required by Wrecks and finds that no non-frivolous issues exist.

Accordingly, we affirm the denial of his PCRA petition and grant

.

Motion to withdraw as counsel granted. Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9/9/2014

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