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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
PATRICK CORNWALL :
:
Appellant : No. 3958 EDA 2017
Appeal from the PCRA Order November 2, 2017
In the Court of Common Pleas of Delaware County Criminal Division at
No(s): CP-23-CR-0005260-2016
BEFORE: PANELLA, J., MURRAY, J., and STEVENS*, P.J.E.
MEMORANDUM BY MURRAY, J.: FILED JUNE 04, 2018
Patrick Cornwall (Appellant) appeals from the order denying his petition
filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-
9546. We affirm.
We summarize the pertinent facts and procedural history of this case as
follows. In April 2017, Appellant entered a negotiated guilty plea to two
counts of simple assault, one count of terroristic threats, and one count of
driving with a suspended license, DUI-related. The terms of the plea included,
inter alia, a sentence of ten months to two years, less a day, in the Delaware
County Prison, and a recommendation for work release eligibility so long as
Appellant qualified under the guidelines for county intermediate punishment.
At the plea colloquy, Appellant’s counsel (plea counsel) stated that
Appellant had spoken with Katherine Miller, the work release case manager,
and that Ms. Miller indicated that Appellant appeared to be eligible for work
____________________________________
* Former Justice specially assigned to the Superior Court.
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release, based upon the information Appellant provided in their discussion.
N.T., 10/26/17, at 106-109. Following the colloquy, the trial court imposed
the agreed upon sentence of ten months to two years, less a day. The trial
court also imposed the condition that Appellant was “stationary work release
eligible if deemed appropriate by the prison.” Judgment of Sentence, 4/21/17.
Appellant did not file a direct appeal.
On May 17, 2017, plea counsel filed a petition to modify the conditions
of the sentence, requesting permission for Appellant to attend physical
therapy sessions while in the work release program. The Commonwealth did
not oppose the petition, and the trial court granted Appellant’s request,
conditioned on his work release eligibility.
On May 23, 2017, after learning that a preexisting condition (seizures)
made Appellant ineligible for work release, plea counsel filed a second petition
requesting that Appellant be able to serve his sentence using electronic home
monitoring. Petition, 5/23/17, at ¶ 4-5. In response, the trial court issued
an order, stipulated by counsel, which directed that Appellant “be placed in
the Delaware County Prison work release program [forthwith].” Stipulation,
6/9/17. Despite the trial court’s order, Appellant was never placed in the work
release program.
On June 8, 2017, Appellant filed a timely pro se PCRA petition. The
PCRA court scheduled a hearing and appointed PCRA counsel. Appellant
subsequently filed a counselled, amended PCRA petition that challenged the
effectiveness of plea counsel and, in turn, the voluntariness of his guilty plea.
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The PCRA court conducted a hearing on the merits of Appellant’s
amended petition where Appellant, Ms. Miller, and plea counsel offered
testimony. Appellant testified that he had asked plea counsel what it meant
to be eligible for work release and that plea counsel told him “don’t worry
about it. . . [because ineligibility] never happens to anybody.” N.T., 10/26/17,
at 24-25. Appellant stated that he had spoken with Ms. Miller about work
release and that “she told [him] all of the rules” of the program, but did not
tell him that he needed to be cleared medically. Id. at 24-25, 38. Appellant
also stated that he did not inform Ms. Miller of an open criminal charge pending
against him. Id. at 25.
Ms. Miller testified that she explained to Appellant that he would need
to be medically cleared by the prison to be eligible for work release, and that
Appellant did not discuss with her his seizures or inquire about whether his
medical condition would make him ineligible for the program. Id. at 58. Ms.
Miller also stated that she informed Appellant that an open case or detainer
would make an inmate ineligible for work release, but that Appellant did not
inform her that he had an open case. Id. at 55, 58.
Plea counsel testified that neither the trial court nor the Commonwealth
promised Appellant that he would be eligible for work release, and that the
trial court made Appellant aware that his eligibility for work release was
contingent on prison guidelines. Id. at 104-109. Plea counsel also testified
that had he known that Appellant’s medical condition and open case
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disqualified him from work release eligibility, he would have informed him.
Id. at 110-112.
The PCRA court found the testimony of Ms. Miller and plea counsel to be
credible and determined that Appellant’s testimony was not credible. PCRA
Court Opinion, 1/12/18, at 9, 14. Accordingly, on November 2, 2017, the
PCRA court entered an order dismissing Appellant’s petition. Appellant filed a
timely, counselled notice of appeal and complied with the PCRA court’s order
to file a concise statement of errors complained of on appeal pursuant to Rule
1925(b) of the Pennsylvania Rules of Appellate Procedure. The PCRA court
issued a Rule 1925(a) opinion.
Appellant raises the following issue:
I. Did the trial court err in dismissing [Appellant’s] petition for
post conviction relief wherein he alleged that [plea] counsel was
ineffective for indicating to [Appellant] that he would be work
release eligible as part of the negotiated plea entered into with
the District Attorney’s Office of Delaware County?
Appellant’s Brief at 4.
Our standard of review is well-settled:
In reviewing the denial of PCRA relief, we examine whether the
PCRA court’s determinations are supported by the record and are
free of legal error. The PCRA court’s credibility determinations,
when supported by the record, are binding on this Court; however,
we apply a de novo standard of review to the PCRA court’s legal
conclusions.
Commonwealth v. Roney, 79 A.3d 595, 603 (Pa. 2013) (citation omitted).
Appellant argues that plea counsel was ineffective for failing to advise
him before he entered the negotiated guilty plea that his medical condition
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and pending criminal charge made him ineligible for work release. Thus,
Appellant contends that his guilty plea was “not knowing and voluntarily
entered.” Appellant’s Brief at 13.
[I]n order to obtain relief based on [an ineffectiveness]
claim, a petitioner must establish: (1) the underlying claim
has arguable merit; (2) no reasonable basis existed for
counsel’s actions or failure to act; and (3) petitioner suffered
prejudice as a result of counsel’s error such that there is a
reasonable probability that the result of the proceeding
would have been different absent such error.
Trial counsel is presumed to be effective, and Appellant bears the
burden of pleading and proving each of the three factors by a
preponderance of the evidence.
Commonwealth v. Barndt, 74 A.3d 185, 192 (Pa. Super. 2013) (citations
omitted). “A court is not required to analyze the elements of an
ineffectiveness claim in any particular order of priority; instead, if a claim fails
under any necessary element of the ineffectiveness test, the court may
proceed to that element first.” Commonwealth v. Tharp, 101 A.3d 736,
747 (Pa. 2014) (citations omitted).
While a criminal defendant’s right to effective counsel extends to the
plea process, “[a]llegations 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.” Barndt, 74 A.3d
at 192 (citation omitted). “The voluntariness of [the] plea depends on
whether counsel’s advice was within the range of competence demanded of
attorneys in criminal cases.” Commonwealth v. Beddell, 954 A.2d 1209,
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1212 (Pa. Super 2008), appeal denied, 964 A.2d 893 (Pa. 2009). It is well-
settled that “[a] person who elects to plead guilty is bound by the statements
he makes in open court while under oath and may not later assert grounds for
withdrawing the plea which contradict the statements he made at his plea
colloquy.” Commonwealth v. Yeomans, 24 A.3d 1044, 1047 (Pa. Super.
2011).
In addition, a petitioner attempting to prove the ineffectiveness of
counsel must adequately discuss each of the three ineffectiveness prongs or
the appellate court will reject the claim. Commonwealth v. Reyes-
Rodriguez, 111 A.3d 775, 780 (Pa. Super. 2015), appeal denied, 123 A.3d
331 (Pa. 2015), citing Commonwealth v. Fears, 86 A.3d 795, 804 (Pa.
2014). Claims of ineffectiveness of counsel are not self-proving, and this
Court will not serve as counsel for Appellant or consider issues which are not
fully developed in the brief. Commonwealth v. Kane, 10 A.3d 327, 331 (Pa.
Super. 2010), appeal denied, 29 A.3d 796 (Pa. 2011); see also
Commonwealth v. Spotz, 18 A.3d 244, 282 (Pa. 2014) (finding waiver
where Appellant failed to meaningfully develop the elements of an
ineffectiveness of counsel claim).
Here, aside from a brief statement generally summarizing the applicable
law and a single conclusory assertion that his guilty plea “was not knowing
and voluntarily entered based on [his] reliance on the representations of [plea
counsel,]” Appellant has failed to set forth a cognizable argument that he is
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entitled to relief under the PCRA. Appellant’s Brief at 11-13. He does not
discuss or apply the standard for ineffectiveness claims, and he fails to develop
an argument concerning any of the ineffectiveness prongs. Accordingly, we
conclude that Appellant has waived this claim for failure to properly develop
it. See Spotz, 18 A.3d at 282; Reyes-Rodriguez, 111 A.3d at 780; Kane,
10 A.3d at 331.
Moreover, even if Appellant had properly developed an ineffective
assistance of counsel argument in his appellate brief, he would have failed to
meet his burden of proving that his claim has arguable merit. Our review of
the record reveals that there is no evidence indicating that plea counsel or
anyone else promised Appellant that he would be eligible for work release
prior to his guilty plea. See N.T., 10/26/17, at 55, 58, 104-112. The record
is clear that both the trial court and Ms. Miller told Appellant that his entry
into the work release program was contingent upon prison guidelines. See
id. The PCRA court expressly credited the testimony of Ms. Miller and plea
counsel, who testified that they never guaranteed Appellant that he would be
eligible for work release. PCRA Court Opinion, 1/12/18, at 9, 14. We are
bound by the PCRA court’s credibility determinations when supported by the
record. Roney, 79 A.3d at 603. We therefore affirm the order denying
Appellant’s PCRA petition.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/4/18
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