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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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. :
:
JAMES ROBERT SLATER, : No. 1934 WDA 2015
:
Appellant :
Appeal from the PCRA Order, November 12, 2015,
in the Court of Common Pleas of Allegheny County
Criminal Division at No. CP-02-CR-0008089-2007
BEFORE: FORD ELLIOTT, P.J.E., LAZARUS AND JENKINS, JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED OCTOBER 12, 2016
James Robert Slater appeals from the November 12, 2015 order
entered in the Court of Common Pleas of Allegheny County that denied his
petition filed pursuant to the Post Conviction Relief Act, 42 Pa.C.S.A.
§§ 9541-9546 (“PCRA”). PCRA counsel has also filed an application to
withdraw. We affirm.
The PCRA court set forth the following:
[Appellant] was charged with Rape of a
Child,[Footnote 1] Involuntary Deviate Sexual
Intercourse with a Child [“IDSI”],[Footnote 2]
Statutory Sexual Assault,[Footnote 3] Unlawful
Contact with a Minor,[Footnote 4] Indecent Assault
of a Child under 13,[Footnote 5] Indecent
Exposure[Footnote 6] and Corruption of
Minors.[Footnote 7] A jury trial was held before this
Court in May, 2008 and at the close of the
Commonwealth’s case, [appellant’s] Motion for
Judgment of Acquittal was granted as to the Unlawful
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Contact with a Minor charge. The jury returned a
verdict of Not Guilty at the IDSI charge, but
convicted [appellant] of all remaining charges.
[Footnote 1] 18 Pa.C.S.A. § 3121(c)
[Footnote 2] 18 Pa.C.S.A. § 3123(b)
[Footnote 3] 18 Pa.C.S.A. § 3122.1
[Footnote 4] 18 Pa.C.S.A. § 6318(2)
[Footnote 5] 18 Pa.C.S.A. § 3126(a)(7)
[Footnote 6] 18 Pa.C.S.A. § 3127(a)
[Footnote 7] 18 Pa.C.S.A. § 301(a)(1)
[Appellant] appeared before this Court on
August 18, 2008 and was sentenced to a term of
imprisonment of 10 to 20 years at the Rape count,
with consecutive terms of imprisonment of three (3)
to six (6) years at the Statutory Sexual Assault count
and two and one half (2 ½) to five (5) years at the
Corruption of Minors count. His Motion for
Reconsideration was denied on August 26, 2008.
The judgment of sentence was affirmed by the
Superior Court on January 26, 2010 and his
subsequent Petition for Allowance of Appeal was
denied by our [Supreme] Court on September 15,
2010.
No further action was taken until November 2,
2011, when [appellant] filed a pro se [PCRA]
Petition. Counsel was appointed to represent
[appellant] and five (5) subsequent amendments to
the Petition followed. An evidentiary hearing was
held before this Court on January 8, 2013, after
which this Court granted relief and ordered a new
trial.
On October 21, 2013, [appellant] appeared
before this Court with his new attorney, Nicole Nino,
Esquire, and entered a negotiated guilty plea to all
counts and was immediately sentenced to a term of
imprisonment of seven and one half (7 1/2 ) to
15 years with a lifetime term of registration. No
Post-Sentence Motions were filed and no direct
appeal was taken.
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On November 26, 2014[Footnote 8],
[appellant] filed a pro se [PCRA] Petition. Counsel
was appointed to represent [appellant] and an
Amended Petition followed. An evidentiary hearing
was held before [this] Court on November 10, 2015,
at which time relief was denied. A written Order to
that effect followed on November 12, 2015. This
appeal followed.
[Footnote 8] This Court has accepted
the Petition as timely pursuant to the
Prisoner Mailbox Rule[.][1]
PCRA court opinion, 5/19/16 at 1-3.
Appellant raises the following issue for our review:
Whether the PCRA Court erred in failing to grant
relief when counsel gave ineffective assistance by
unlawfully inducing [a]ppellant to plead guilty?
Appellant’s brief at 4.
On July 11, 2016, Attorney Thomas N. Farrell filed an application to
withdraw and a Turner/Finley2 no-merit letter in the form of an appellant’s
brief, where he concludes that there are no meritorious issues worth raising
on appeal.
Before we consider appellant’s argument, we must review
Attorney Farrell’s application to withdraw. Pursuant to Turner/Finley,
before withdrawal on collateral appeal is permitted, an independent review
of the record by competent counsel is required. Commonwealth v. Pitts,
1
See Pa.R.A.P. 121(a).
2
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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981 A.2d 875, 876 n.1 (Pa. 2009). Counsel must then submit a no-merit
letter that (1) details the nature and extent of his or her review; (2) lists
each issue the petitioner wishes to have reviewed; and (3) explains why the
petitioner’s issues lack merit. Id. The court then conducts its own
independent review of the record to determine whether the petition indeed
lacks merit. Id. Counsel must also send 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.” Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa.Super.
2007) (citation omitted).
Our review of the record demonstrates that Attorney Farrell has
complied with each of the above requirements. Additionally, Attorney Farrell
sent appellant copies of the Turner/Finley no-merit letter and his
application to withdraw and advised appellant of his right to retain new
counsel or proceed pro se. See Commonwealth v. Widgins, 29 A.3d
816, 818 (Pa.Super. 2011).
We now address appellant’s issue to determine whether we agree with
Attorney Farrell that it lacks merit.
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
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omitted). Because most PCRA appeals involve questions of fact and law, we
employ a mixed standard of review. Pitts, 981 A.2d at 878. 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.
Here, appellant asserts ineffective assistance of guilty 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,
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
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693, 701 (Pa. 1998) (“If it is clear that Appellant has
not demonstrated that counsel’s act or omission
adversely affected the outcome of the proceedings,
the claim may be dismissed on that basis alone and
the court need not first determine whether the first
and second prongs have been met.”).
Commonwealth v. Washington, 927 A.2d 586, 594 (Pa. 2007).
In the context of a 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 entered the
plea. Id. (citation omitted).
Here, appellant complains that plea counsel promised him that he
would be paroled on the date of his minimum sentence and, based on that
promise, he was unlawfully induced to plead guilty. At the PCRA hearing,
however, appellant testified on cross-examination, as follows:
Q Sir, you stated that, if I understand your
testimony, [plea counsel] stated that you could
make parole; correct?
A Correct.
Q She didn’t promise you that it was a hundred
percent guaranteed; did she?
A No.
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Notes of testimony, 11/10/15 at 7.
The record also reveals that plea counsel testified on direct
examination, as follows:
[Q] Do you recall -- or did you ever promise
[appellant] that if he was -- he could be out on
his minimum in this case?
A No. And to that point, this practice, criminal
practice, is very unpredictable. I do not make
guarantees to clients.
Q Have you ever made that promise?
A To anyone? No. I never guarantee anything,
especially when it comes to parole, certainly.
Q Now, you heard [appellant], what he testified
to. Did that occur, that testimony, do you
recall that, whatever that was?
A No. I discussed plenty of things regarding
parole and processes and when you’re
considered a sex offender and the reentry
programs and everything, but that specific,
that you would be paroled at seven-and-a-half
years, no.
Q Would you --
A Guarantee a seven-and-a-half year? No.
Id. at 9-10.
The record further reflects that at the conclusion of the testimony, the
PCRA court denied appellant’s PCRA petition, as follows:
THE COURT: Well, in light of the fact of [plea
counsel’s] testimony, as well as the fact that
[appellant] did not -- kind of hedged on he was
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promised and said that she never promised him a
hundred percent, I’m going to deny the PCRA.
Id. at 13.
Here, the PCRA court determined that plea counsel credibly testified
and that appellant entered his guilty plea knowingly, voluntarily, and
intelligently.3 (See id.; see also PCRA court opinion, 5/19/16 at 6.) The
record supports the PCRA court’s factual findings, and we will not disturb
them on appeal. The record also supports the PCRA court’s legal
conclusions, and they are free of legal error.
Having conducted an independent review of the record, this court is
satisfied that the issue raised in appellant’s petition is meritless and that the
PCRA court did not err in denying appellant’s petition. We, therefore, grant
Attorney Farrell’s petition to withdraw and affirm the PCRA court’s order.
Petition to withdraw granted. Order affirmed.
3
We note that during appellant’s plea and sentencing colloquy, appellant
stated, among other things, that he understood the nature of the charges
against him; that he understood that he faced a maximum of 45 years of
imprisonment; that he read, understood, and completed the guilty
plea/explanation of defendant’s rights form; that he was entering his guilty
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/12/2016
plea because he is guilty; and that he was satisfied with the services of plea
counsel. (Notes of testimony, 10/21/13 at 4-8.)
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