Com. v. King, D.

J-S86016-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee

v.

DEMETRIOUS KING

Appellant No. 105 WDA 2016

Appeal from the PCRA Order December 17, 2015
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0016756-2012

BEFORE: GANTMAN, P.J., MOULTON, J., and STEVENS, P.J.E.*

MEMORANDUM BY MOULTON, J.: FILED MARCH 10, 2017

Demetrious King appeals from the December 17, 2015 order entered

in the Allegheny County Court of Common Pleas denying his petition filed

pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-46.

King’s counsel has filed with this Court a Turner/Finley1 no-merit letter and

a motion to withdraw as counsel. We affirm the PCRA court’s order and

grant counsel’s motion to withdraw.

The trial court summarized the relevant factual and procedural history

of this matter as follows:

____________________________________________

*
Former Justice specially assigned to the Superior Court.
1
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988);
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).
J-S86016-16

This matter arises out of [King’s] guilty plea on
December 17, 2013 to charges of flight to avoid
apprehension[;] fleeing or eluding a police officer[;]
altered forged or counterfeit documents; four counts of
recklessly endangering another person; resisting arrest;[2]
and[] various motor vehicle code violations. At the time of
his plea [King] was represented by Attorney Frank Walker.
After an appropriate colloquy regarding [King’s]
understanding of the charges, it was acknowledged that
there was no plea agreement.[3] The Commonwealth
presented a summary of the evidence regarding [King’s]
failure to stop for a traffic violation and an ensuing police
chase culminating in [King’s] arrest, to which there [were]
no objections, additions or corrections. [King] also
acknowledged executing the Guilty Plea and Explanation of
Rights Form. [King’s] plea was then accepted and a
presentence report was ordered. In response to the
indication that a presentence report was being ordered and
being asked by the Court if he understood what that
meant, [King] asked, “So that means I can get more time
than what I'm signing the plea about?” In response to that
comment Attorney Walker asked to confer with [King] and
after doing so, [King] indicated that he understood.

At the sentencing hearing on July 17, 2014 Attorney
Walker vigorously argued for a sentence structured so that
[King] would be sentenced to consecutive sentences of 11
1/2 to 23 months “back to back” so that he “stays in the
county, he can complete the GED program and gets
assistance for his substance abuse.[”] However, it was
noted that this sentence could not be imposed as
requested as it would be recognized as a state sentence
and [King] would be transferred from the county jail. In
addition, it was noted that [King’s] guidelines were so high
due to his lengthy criminal record that even in the
____________________________________________

2
18 Pa.C.S. § 5126(a), 75 Pa.C.S. § 3733(a), 75 Pa.C.S. § 7122(1),
18 Pa.C.S. § 2705, and 18 Pa.C.S. § 5104, respectively.
3
The trial court’s reference to “no plea agreement” means that the
Commonwealth and King had not agreed upon a sentence or other
concession in return for King’s guilty plea.

-2-
J-S86016-16

mitigated range, the sentence was 21 to 42 months. After
discussion about a possible probation violation, the
following exchange took place:

The Court: I don’t know the facts of the
probation hearing. That is a separate issue
that we will have to deal with at a later date.
Is there anything you want to say on this case?

[King]: The reason I took the plea was because
I understood that I was going to get 11-and-a-
half to 23 months.

The Court: I can’t do that, do you understand?
Do you want to take a minute and talk to him?

Mr. Walker: Sure.

After conferring with [King], Attorney Walker indicated that
he explained the situation to [King], including the
background and presentence report and “how parole and
probation works together and sometimes against each
other.” Counsel then asked for a sentence at the bottom
of the mitigated range. [King] then was sentenced to
concurrent sentences of 21 to 42 months at counts one
and two and a concurrent sentence of 12 to 24 months at
count three. He was then sentenced to 10 years of
aggregate probation on the remaining counts. [King] was
then given an opportunity to ask a question about the
sentence at which time he questioned the length of the
probation. In response, [King] was informed that if he had
no probation violations after three years probation, he
could request a reduction at that time.

[King] filed a pro se PCRA Petition on April 3, 2015 and
a Amended PCRA petition was filed on September 4, 2015.
In the Amended Petition[,] claims were raised of
ineffective assistance of counsel in failing to file post
sentence motions or an appeal and in inducing [King] to
enter into his plea by promising him that he would receive
a county sentence. The Commonwealth filed an answer
conceding that an evidentiary hearing was necessary to
address the claims. [On November 5, 2015, King filed a
Supplemental Amended PCRA petition.]

-3-
J-S86016-16

At the PCRA hearing, [King] identified a letter he
received from Attorney Walker dated October 23, 2013
that was offered into evidence.1 [King] indicated that he
believed that the letter stated that Mr. Walker could
negotiate a sentence of a 11 1/2 to 23 months of county
time and he would be paroled forthwith so that he could go
home and take care of his father. [King] testified that
based on the information supplied to him by Mr. Walker, it
was guaranteed he would get 11 1/2 to 23 months and
that was the reason that he pleaded guilty. [King] testified
that at the time of the guilty plea he stated that the reason
he took the plea was that he was getting 11 1/2 to 23
months. [King] further testified that when given an
opportunity to speak to counsel at the sentencing hearing
he was trying to explain that one of the charges against
him should have been dismissed and that he had
paperwork showing that it had been dismissed,
presumably at the preliminary hearing. [King] indicated
further that when speaking to counsel that Mr. Walker
suggested that he should withdraw from the case at the
sentencing, but [King] did not really know what Mr. Walker
was going to do. He testified that Mr. Walker never
explained to him that the 11 1/2 to 23 months was not a
promise. [King] testified that he did not explain the
situation to the Court because Mr. Walker told him not to
say anything and that every time that he tried to talk the
Court reprimanded him and instructed him to talk with Mr.
Walker. [King] testified that he would have never taken
the plea if he knew that he was going to be sent to a state
prison.
1
The letter of October 23, 2013 from Attorney
Walker to [King] states in pertinent part: “As
you know, your case was postponed until
December 17, 2013 in order to have a
representative from the probation office
present to address your possible detainer issue
and address your sentence. In is my intent
to request a county sentence and that the
judge take no further action on the
detainer. I will also request that you be
paroled forthwith.”

-4-
J-S86016-16

Attorney Walker testified at the PCRA hearing that he
never guaranteed or promised that [King] would get a
county sentence. In relation to the letter of October 23,
2013, he testified that:

“It was my attempt to inform him what my
intentions were going to be at sentencing,
because he was asking what is going to
happen at sentencing. I said it is my intention
to argue for a county sentence, because he did
inform me about his father being sick, and I
said I am going to ask for a county sentence,
there are no guarantees, the guidelines are
pretty high.”

Attorney Walker denied promising that he would receive 11
1/2 to 23 months indicating that he told [King]:

“Just that his guidelines are pretty high, and
my assessment of the discovery and my
interactions with the officers on the case, that
if he were to go to trial it was my estimation
that he would probably be found guilty and if
found guilty, we would no longer be able to be
talking about a County sentence or mitigate it.
It would probably be in the middle or higher
range of the standard sentence.”

Attorney Walker recalled [King] stating at the sentencing
hearing that the only reason that he took the plea was
because he was going to get 11 1/2 to 23 months. When
instructed to talk to his client, Attorney Walker indicated
that:

“I went over the same thing I just spoke
about. I said, listen, I can ask the Court to
withdraw the plea, we can ask for a new
court and go to trial. There is a chance he
would say no since you have already plead
guilty, but at this point we are at the
sentencing phase and you have already
accepted responsibility for your actions. If we
go to trial, like I told you in the beginning, you
would probably be found guilty, and it is

-5-
J-S86016-16

totally your choice, let me know what you
want to do.” (Emphasis added)

Attorney Walker indicated that [King] then told him to
“go ahead” and did not instruct him to request to withdraw
the guilty plea. Counsel also denied that [King] wanted
him to withdraw as counsel or that he told [King] that he
would withdraw as counsel. After consideration of all of
the evidence an order was entered on December 17, 2015
dismissing the PCRA petition. [King] filed a timely appeal.

PCRA Ct. Op., 7/13/16, at 1-5 (citations omitted, emphasis in original).

On February 23, 2016, the PCRA court ordered King to file within 21

days a concise statement of matters complained of on appeal pursuant to

Pennsylvania Rule of Appellate Procedure 1925(b). On March 10, 2016, King

filed a Rule 1925(b) statement. Thereafter, on August 5, 2016, King’s PCRA

counsel filed a motion to withdraw from representation and a no-merit letter.

Before we may address the merits of King’s appeal, we must

determine whether his PCRA counsel has satisfied the requirements for

withdrawal under Turner/Finley. Counsel must

file a “no-merit” letter detailing the nature and extent of
his review and list[ing] each issue the petitioner wishes to
have examined, explaining why those issues are meritless.
The PCRA court, or an appellate court if the no-merit letter
is filed before it, then must conduct its own independent
evaluation of the record and agree with counsel that the
petition is without merit.

Commonwealth v. Rykard, 55 A.3d 1177, 1184 (Pa.Super. 2012) (internal

citation omitted). Counsel also must serve copies of the petition to withdraw

and no-merit letter on the petitioner and advise the petitioner that he or she

-6-
J-S86016-16

has the right to proceed pro se or with privately retained counsel.

Commonwealth v. Widgins, 29 A.3d 816, 818 (Pa.Super. 2011).

In his no-merit letter, PCRA counsel states that he reviewed the

record. Also in the letter, PCRA counsel identifies the issue that King wishes

to raise and explains why the issue is meritless. PCRA counsel also mailed a

copy of the petition and no-merit letter to King and informed King of his

right to withdraw the appeal, to retain private counsel, or to proceed without

counsel. We conclude that PCRA counsel has complied with the dictates of

Turner/Finley.

Because King did not file a pro se brief or a brief by private counsel,

we will address the merits of the one issue raised by PCRA counsel:

“Whether trial counsel gave ineffective assistance for inducing [King] into

pleading guilty by promising [King] that he would receive a county

sentence?” No-Merit Letter at 4.

Our standard of review from the denial of PCRA relief “is limited to

examining whether the PCRA court’s determination is supported by the

evidence of record and whether it is free of legal error.” Commonwealth v.

Ousley, 21 A.3d 1238, 1242 (Pa.Super. 2011). We will not disturb the

PCRA court’s factual findings “unless there is no support for [those] findings

in the certified record.” Commonwealth v. Melendez–Negron, 123 A.3d

1087, 1090 (Pa.Super. 2015).

-7-
J-S86016-16

When analyzing ineffectiveness claims, “[w]e begin . . . with the

presumption that counsel [was] effective.” Commonwealth v. Spotz, 18

A.3d 244, 259-60 (Pa. 2011). “[T]he [petitioner] bears the burden of

proving ineffectiveness.” Commonwealth v. Ligons, 971 A.2d 1125, 1137

(Pa. 2009). To overcome the presumption of effectiveness, a PCRA

petitioner must demonstrate that: “(1) the underlying substantive claim has

arguable merit; (2) counsel whose effectiveness is being challenged did not

have a reasonable basis for his or her actions or failure to act; and (3) the

petitioner suffered prejudice as a result of counsel’s deficient performance.”

Id. “A claim of ineffectiveness will be denied if the petitioner’s evidence fails

to meet any of these prongs.” Id.

King argues that prior counsel was ineffective for inducing him to plead

guilty by promising him that he would receive a sentence in county jail.

The PCRA court found:

In this case, there is no question that [King] and
counsel discussed that a request would be made for a
county sentence or that plea counsel made repeated
requests that any sentence be structured so that [King]
could remain in the county jail. In addition, there is no
question that [King] hoped for a county sentence and that
his hope for such a sentence may have been an important
factor in his decision to enter his plea. However, the
record simply does not support [King’s] contention that he
was guaranteed or promised that he would receive a
county sentence or that his plea was involuntary or
unintelligent. The letter from counsel of October 23, 2013
clearly does not guarantee or promise a county sentence
and makes it clear that it was a request that would be
ma[d]e and argued for. In addition, at the very beginning

-8-
J-S86016-16

of the plea proceeding, the record is clear that there was
“no plea agreement.”

Attorney Walker’s testimony that he did not guarantee
or promise a county sentence to [King] is credible and
consistent with his written communication with [King].
Likewise, Attorney Walker’s testimony regarding their
discussion and [King’s] decision to not make a request to
withdraw his plea at the sentencing hearing, after [King]
made the statement that he took the plea because he
“understood” he was going to get a county sentence, is
also credible. Although [King] may have been faced with a
difficult choice once it was made known that he would not
receive a county sentence, it is clear that he was given an
opportunity to discuss it with counsel and counsel again
advised him of the risks of going to trial versus continuing
with the sentencing. Attorney Walker’s testimony that
[King] told him to “go ahead” with the proceedings as
opposed to requesting that the plea be withdrawn is
credible. Contrary to the assertion that [King] was not
given the opportunity to discuss the proceedings, [King]
was given the opportunity to discuss with counsel
proceeding [sic] when it was made clear that he would not
receive a county sentence. In addition, [King] was given
the opportunity to direct his question or request about the
sentencing to the Court and at that time [King] raised only
a question about the length of his probation. As noted
above, although [King] may have hoped for a county
sentence, the evidence supports the finding that he
entered into a knowing, voluntary and intelligent plea that
was not induced by a promise or guarantee that he would
receive a county sentence. There is no evidence to
support the claim that counsel was ineffective and,
therefore, the petition was appropriately denied.

PCRA Ct. Op. at 7 (citations omitted). Because the record supports the

PCRA court’s credibility determinations, we are bound by them.

Commonwealth v. Dennis, 17 A.3d 297, 305 (Pa. 2011). Accordingly,

King’s underlying substantive claim does not have arguable merit, and we

-9-
J-S86016-16

need not address the remaining ineffectiveness prongs. We conclude that

the PCRA court properly denied King’s PCRA petition.

Order affirmed. Petition to withdraw granted.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/10/2017

- 10 -