Com. v. Alberstadt, W. (memorandum)

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J-S86031-16 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. WILLIAM ALBERSTADT Appellant No. 632 WDA 2016 Appeal from the PCRA Order April 5, 2016 In the Court of Common Pleas of Erie County Criminal Division at No(s): CP-25-CR-0001947-2013 BEFORE: GANTMAN, P.J., MOULTON, J., and STEVENS, P.J.E.* MEMORANDUM BY GANTMAN, P.J.: FILED NOVEMBER 21, 2016 Appellant, William Alberstadt, appeals from the order entered in the Erie County Court of Common Pleas, which denied his first petition filed under the Post Conviction Relief Act (“PCRA”).1 We affirm. The PCRA court fully set forth the relevant facts and procedural history of this case in its opinions. Therefore, we have no reason to restate them. 2 ____________________________________________ 1 42 Pa.C.S.A. §§ 9541-9546. 2 Appellant filed a timely pro se PCRA petition on August 7, 2015. The court appointed counsel, who subsequently filed a motion to withdraw and nomerit letter per Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988) and Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc). The court issued Pa.R.Crim.P. 907 notice of its intent to dismiss the petition without a hearing on October 20, 2015. On October 29, 2015, Appellant secured new counsel, who sought an extension of time to file a (Footnote Continued Next Page) _____________________________ *Former Justice specially assigned to the Superior Court. J-S86031-16 Appellant raises four issues for our review: WAS [THERE] A CONFLICT OF INTEREST WHERE [THE COURT] FOUND A CONFLICT EXISTED IF APPELLANT ENTERED A GUILTY PLEA AFTER COUNSEL ADVISED THE COURT THERE WAS A CONFLICT IN THAT THEY ADVISED APPELLANT TO ACCEPT THE PLEA BARGAIN AND APPELLANT DECLARED THAT HE WANTED A JURY TRIAL? ONCE [THE COURT] RULED THAT THERE WOULD BE A CONFLICT OF INTEREST IF APPELLANT ENTERED A GUILTY PLEA IF REPRESENTED BY [PLEA] COUNSEL, WAS IT IMPROPER FOR ANOTHER JUDGE TO ACCEPT A PLEA IN THIS CASE? DID [PLEA] COUNSEL ABANDON APPELLANT WHEN THEY TOLD HIM THAT THEY WOULD NOT REPRESENT HIM IN A JURY TRIAL EVEN THOUGH [THE COURT] DENIED THEIR MOTION TO WITHDRAW BASED UPON A CONFLICT OF INTEREST AND ORDERED THEM TO TRIAL? DID [PLEA] COUNSEL COERCE APPELLANT TO ENTER A PLEA AGAINST HIS FREE WILL? (Appellant’s Brief at 3). Our standard of review of the denial of a PCRA petition is limited to examining whether the record evidence supports the court’s determination and whether the court’s decision is free of legal error. Commonwealth v. Ford, 947 A.2d 1251 (Pa.Super. 2008), appeal denied, 598 Pa. 779, 959 (Footnote Continued) _______________________ supplemental PCRA petition. The court granted the request and new counsel filed the supplemental PCRA petition on November 23, 2015. The court held a PCRA hearing on March 2, 2016, and ultimately denied PCRA relief on April 5, 2016. Although the PCRA court opinion filed March 16, 2016 suggests Appellant’s supplemental PCRA petition might be construed as a second PCRA petition, the record makes clear the current petitions collectively constitute Appellant’s first attempt at collateral relief. -2- J-S86031-16 A.2d 319 (2008). This Court grants great deference to the findings of the PCRA court if the record contains any support for those findings. Commonwealth v. Boyd, 923 A.2d 513 (Pa.Super. 2007), appeal denied, 593 Pa. 754, 932 A.2d 74 (2007). If the record supports a post-conviction court’s credibility determination, it is binding on the appellate court. Commonwealth v. Dennis, 609 Pa. 442, 17 A.3d 297 (2011). After a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinions of the Honorable William R. Cunningham, we conclude Appellant’s issues merit no relief. The PCRA court opinions comprehensively discuss and properly dispose of the questions presented. (See PCRA Court Opinion, filed October 20, 2015, at 2-7; PCRA Court Opinion, filed March 16, 2016, at 3-7; PCRA Court Opinion, filed June 2, 2016, at 1-4) (finding: evidence against Appellant was significant, including Victim’s videotaped statement describing Appellant’s sexual acts, photographs Appellant took of Victim in suggestive poses, and Appellant’s statements to police describing his granddaughter as “saucy looking girl” with “cute little body”; when Appellant admitted to counsel that Appellant had oral sex with his granddaughter but told counsel he would lie on witness stand, Appellant created ethical dilemma for his attorneys, prompting attorneys to file motion to withdraw; court ultimately denied motion to withdraw and informed counsel that Appellant could testify in narrative form to avoid any ethical issues; court’s denial of motion to withdraw in no way -3- J-S86031-16 precluded possibility of Appellant entering guilty plea at later date; although Appellant voiced desire to go to trial during hearing on motion to withdraw, material circumstances changed following that hearing; specifically, counsel learned after hearing on motion to withdraw that Appellant attempted to bribe his son-in-law to make charges disappear (which would have been very damaging to Appellant if presented at trial), and Commonwealth offered more favorable plea bargain; upon these changed circumstances, counsel explained to Appellant benefits of entering guilty plea but left choice to Appellant; court engaged in thorough plea colloquy which confirmed Appellant’s decision to plead guilty was of his own volition; 3 Appellant’s attorneys did not abandon Appellant and were prepared to go to trial had Appellant made that choice; significantly, Appellant did not seek to withdraw plea after sentencing; Appellant’s testimony at PCRA hearing was incredible; ____________________________________________ 3 Given the current state of the law regarding mandatory minimum sentencing statutes, we depart from the PCRA court’s references to the Commonwealth’s sentencing offer, which contained no mandatory minimum, as one ground to assess plea counsels’ effectiveness. On appeal, Appellant makes no claim that, but for his fear of a mandatory minimum sentence, he would not have pled guilty. Instead, Appellant challenges the guilty plea solely on counsels’ alleged threat to abandon him if Appellant decided to go to trial. The record belies that contention, however, and makes clear Appellant’s decision to plead guilty was knowing, intelligent, and voluntary. Additionally, the record confirms the Commonwealth agreed to seek nolle prosequi on nine of the ten charges against Appellant in exchange for his guilty plea to one count of involuntary deviate sexual intercourse. As well, the Commonwealth had overwhelming evidence against Appellant in this case. Thus, counsels’ advice to Appellant to enter a guilty plea was reasonable under the circumstances of this case. -4- J-S86031-16 Appellant failed to prove ineffective assistance of counsel in connection with his guilty plea). Accordingly, we affirm on the basis of the PCRA court’s opinions.4 Order affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 11/21/2016 ____________________________________________ 4 In its opinion filed June 2, 2016, the PCRA court references a direct appeal in this case. The record confirms Appellant did not seek direct review. Instead, Appellant timely filed a PCRA petition following sentencing. -5- Circulated 11/10/2016 09:42 AM Circulated 11/10/2016 09:42 AM Circulated 11/10/2016 09:42 AM

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