Com. v. White, F. (memorandum)

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J. S35038/14 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, : : : : : : : : : : : Appellee v. FRANKLIN CONNERS WHITE, Appellant IN THE SUPERIOR COURT OF PENNSYLVANIA No. 1589 MDA 2013 Appeal from the PCRA Order August 13, 2013, in the Court of Common Pleas of Lancaster County, Criminal Division at No(s): CP-36-CR-0002014-2012 BEFORE: DONOHUE, WECHT, and STRASSBURGER*, JJ. MEMORANDUM BY STRASSBURGER, J.: FILED MAY 30, 2014 Franklin Conners White (Appellant) appeals pro se from the order entered on August 13, 2013, dismissing his petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. Upon review, we affirm. The factual and procedural history underlying this case can be summarized as follows. On June 1, 2012, Appellant pled guilty to one count of rape of an unconscious victim and one count of sexual assault in connection with raping his aunt while she was sleeping. Pursuant to a negotiated guilty plea, Appellant was sentenced concurrently to five to ten unconscious victim conviction and four * Retired Senior Judge assigned to the Superior Court. J. S35038/14 not file a direct appeal. On May 31, 2013, Appellant filed timely a pro se PCRA petition asserting, inter alia, that his sentence was illegal, as he was led to believe appointed, and on July 8, 2013, counsel filed a petition to withdraw and nomerit letter pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). On July 23, 2013, the PCRA court filed a notice pursuant to ellant responded to the Rule 907 notice asserting the same claims raised previously in his pro se PCRA petition without a hearing. Appellant timely filed a notice of appeal. The PCRA court did not order a statement pursuant to Pa.R.A.P. 1925, and none was filed. Preliminary, we note that when reviewing an order dismissing a PCRA petition, we must determine whether the ruling of the PCRA court is supported by record evidence and is free of legal error. Commonwealth v. Burkett to the findings of the PCRA court, and these findings will not be disturbed -2- J. S35038/14 Commonwealth v. Carter, 21 A.3d 680, 682 (Pa. Super. 2011) (citation omitted). alleged constitutional magnitude.1 Specifically, he argues that the criminal statutes were never enacted due to the lack Brief at 8-9. Thus, he contends the trial court lacked subject matter jurisdiction over him. Id. at 10. To the extent we are able to discern any meaningful argument from this issue;2 we conclude that Appellant is not entitled to relief. In support of his claim, Appellant relies upon a footnote included in Commonwealth v. Bangs, 393 A.2d 720 (Pa. Super. 1978). In Bangs, this Court was tasked with considering the effect of an amendment to the definition of statutory rape where a statutory rape prosecution was in progress on the effective date of the amendment. The amendment at issue reduced the age of consent from sixteen to fourteen and was enacted without a clause 1 Violations, The [1968] Pennsylvania Constitution is without a Saving Schedule/Saving Clause Nor an inacting [sic [sic] ¶ 1. 2 See Commonwealth v. Fetter, 770 A.2d 762, 771 (Pa. Super. 2001) briefs are wholly inadequate to present specific issues for review, a court will -3- J. S35038/14 specifically permitting ongoing statutory rape prosecutions to continue under absence of a saving clause, we note that Pennsylvania is among the handful of states presently without a general saving clause applicable to criminal Id bearing upon the outcome of Bangs and does not suppo conclusion herein that absence of a general savings clause in our that he is not entitled to relief. Next, Appellant inartfully argues that he should be permitted to withdraw his guilty plea. He states the following. court officers. The guilty plea was the result of acceptance of a plea deal for 4 to 8 years; Appellant should have been allowed to withdra Presumably, Appellant is arguing that he is entitled to withdraw his guilty plea pursuant to 42 Pa.C.S. § unlawfully induced where the circumstances make it likely that the inducement caused the petitioner to plead guilty and the petitioner is pointed out, Appellant never asserts his innocence of these crimes. See Rule 907 Notice, 7/23/13, at 2 -4- J. S35038/14 sic] in his Petition does Petitioner point to any circumstance ).3 Thus, we agree with the PCRA court that Appellant is not entitled to relief on this basis. Furthermore, to the extent that Appellant is asserting this claim in the context that the ineffective assistance of counsel forced him to plead guilty, he is also not entitled to relief. A defendant is permitted to withdraw his guilty plea under the PCRA if ineffective assistance of counsel caused the defendant to enter an involuntary plea of guilty. We conduct our review of such a claim in accordance with the three-pronged ineffectiveness test under section 9543(a)(2)(ii) of the PCRA, 42 Pa.C.S.A. § 9543(a)(2)(ii). The voluntariness of the plea depends on whether counsel's advice was within the range of competence demanded of attorneys in criminal cases. In order for Appellant to prevail on a claim of ineffective assistance of counsel, he must show, by a preponderance of the evidence, ineffective assistance of counsel which, in the circumstances of the particular case, so undermined the truthdetermining process that no reliable adjudication of guilt or innocence could have taken place. Appellant must demonstrate: (1) the underlying claim is of arguable merit; (2) that counsel had no reasonable strategic basis for his or her action or inaction; and (3) but for the errors and omissions of counsel, there is a reasonable probability that the outcome of the 3 Moreover, at the guilty plea hearing, Appellant told the court that what happened with his aunt occurred because of his alcohol problem. N.T., ize to the Court, to my family. Back in 2011 I wanted to go get myself some alcohol. Alcohol has been a problem for me something happened. I want to let Your Honor know that nothing like this -5- J. S35038/14 proceedings would have been different. The petitioner bears the burden of proving all three prongs of the test. Moreover, trial counsel is presumed to be effective. Commonwealth v. Rathfon, 899 A.2d 365, 369 (Pa. Super. 2006) (internal citations and quotations omitted). Instantly, Appellant has not set forth any argument as to exactly how counsel misled Appellant into believing that he would be receiving a four to eight year sentence of incarceration. Furthermore, at the guilty plea hearing, Appellant stated that he understood the negotiated guilty plea and bound by the statements made during the plea colloquy, and a defendant may not later offer reasons for withdrawing the plea that Commonwealth v. Brown, 48 A.3d 1275, 1277 (Pa. Super. 2012). Accordingly, Appellant is not entitled to relief. lack of clarity or without merit, we affirm the order of the PCRA court Order affirmed. -6- J. S35038/14 Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 5/30/2014 -7-

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