J-S13008-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA

Appellee

v.

KEVIN J. MCCLINTOCK

Appellant No. 450 WDA 2013

Appeal from the PCRA Order February 11, 2013 In the Court of Common Pleas of Allegheny County

Criminal Division at No(s): CP-02-CR-0017471-2007 CP-02-CR-0017477-2007

BEFORE: PANELLA, J., MUNDY, J., STABILE, J.

JUDGMENT ORDER BY PANELLA, J. FILED: April 9, 2014

Appellant, Kevin McClintock, appeals from the order entered on

February 11, 2013, in the Court of Common Pleas of Allegheny County,

which denied his petition filed pursuant to the Post-Conviction Relief Act

(PCRA). After careful review, we affirm.

Since we are writing solely for the parties, who are well aware of the

relevant factual and procedural history, we find it unnecessary to recite here

the underlying facts. Thus, we turn our attention to the three (3) issues

Appellant presents for our review:

1. Was trial counsel ineffective for failing to object and failing to

preserve the within issues by post-sentence motion, a motion to withdraw guilty plea and for failing to file a notice of

appeal?

2. Is [Appellant]’s sentence unreasonable, manifestly excessive, and an abuse of discretion when the [sentencing] court failed

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to place on the record adequate reason for imposing the

sentence?

3. Was [Appellant]’s guilty plea entered involuntarily and unknowingly in violation of the Due Process Clause of the

Pennsylvania and Federal Constitution, and did plea counsel render ineffective assistance by counseling the involuntary

plea, by failing to object to the defective colloquy, and by failing to withdraw or challenge the plea on appeal?

Appellant’s Brief at 8.

We have considered the standard for establishing ineffective assistance

of counsel under the PCRA as set forth in Commonwealth v. Faulk, 21

A.3d 1196, 1200 (Pa. Super. 2011), and the standard for establishing a

knowing, voluntary, and intelligent plea pursuant to Pa.R.Crim.P. 5901 as

well as relevant case law. In conjunction, we examined the parties’ briefs

and the certified record. Lastly, we reviewed the thorough opinion drafted

by Judge Borkowski, which addressed the issues Appellant raised in his

1925(b) statement. We conclude that Judge Borkowski’s well-reasoned

opinion accurately disposes of the issues Appellant raises on appeal.

Accordingly, we affirm the PCRA court’s denial of PCRA relief on the basis of

Judge Borkowski’s opinion. See PCRA Court’s 1925(a) Opinion, 10/10/13.

Order affirmed. Jurisdiction relinquished.

____________________________________________

1 Specifically, the comment to Pa.R.Crim.P. 590(a)(2) which sets forth the

minimum requirements for the on-the-record colloquy.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 4/9/2014

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The standard of review for ineffective assistance of counsel claims is well

settled:

Counsel is presumed effective, and the appellant has the burden of proving otherwise. Appellant establishes ineffectiveness of counsel with a demonstration that: (I) the underlying claim is of arguable merit; (2) counsel's action or inaction was not grounded on any reasonable basis designed to effectuate Appellant's interest; and (3) there is a reasonable probability that the act or omission prejudiced Appellant in such a way that the outcome of the proceeding would have been different. If the issue underlying the charge of ineffectiveness is not of arguable merit, counsel will not be deemed ineffective for failing to pursue a meritless issue. Also, if the prejudice prong of the ineffectiveness standard is not met, the claim may be dismissed on that basis alone and there is no need to detennine whether the arguable merit and client's interests prongs have been met. It is also well-established that claims of ineffective assistance of counsel .in relation to a plea of guilt will provide a basis for relief only if the appellant can prove that the ineffectiveness caused an involuntary or unknowing plea.

Commonwealth v. D'Collanjield, 805 A.2d 1244, 1246-1247 CPa. Super. 2002)

(citations and quotations omitted).

After hearing the evidence presented, the PCRA Court determined that

Appellant's underlying claims lacked merit, and thus counsel was not ineffective.

Specifically, the PCRA Court made the following findings of fact and conclusions

of law:

Mr. Seman engaged in discussions with the defendant regarding the plea, the Court also finds consistent with the testimony ofMr. Seman, as well as this Court's memory of the case and record, that the Commonwealth had made no offer and no guarantees in terms of sentencing, that the Commonwealth

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refused to enter into any agreement with the defendant regarding a sentence or the charges owing - - as to the aggravated assault charges owing to the nature of the offense and its particulars, of course.

The guidelines were discussed with the defendant. The notion that there was a guarantee of five years is rejected by this Court. The discussions may have included the possibility of a five to ten-year sentence, but there was no guarantee or assurance extended by Mr. Seman or Mr. Thomassey regarding a particular sentence.

Consequently, also in that regard, Court will incorporate as part of the record the colloquy of the guilty plea - - the guilty plea transcript in which Jane E. Sporrer was the court reporter entered on June 10, 2008. And part of that colloquy at page 4, the Court asked this specific question: "Has anybody threatened or promised you anything to force you to plead guilty today," to which the defendant responded no.

So in that regard there - - also, at page 2, Mr. Chemosky, Assistant District Attorney, indicated in response to the Court's question "Is there an agreement between the parties as to the charges or sentence," Mr. Chemosky stated, "This is to be a general plea, Your Honor." Court in the presence of the defendant asked Mr. Seman "Is that accurate, Mr. Seman?" Mr. Seman indicated "That's correct" and the plea continued.

The Court finds in this instance that the defendant's claim has no merit and amounts, in plain English, to he was disappointed with what he perceived as the harshness of the sentence imposed by this Court. No promise was extended. No assurance was extended. His issue at Count I is meritless and the Court rejects it.

P.T. 19-21.9 The PCRA Court found Appellant's underlying claims meritless and

Appellant's trial counsel effective, and these determinations were supported by the

record. Thus, the PCRA Court properly denied Appellant's PCRA claim. See

9 The designation HP.T. " followed by numerals refers to peRA Hearing Transcript of May 4, 201 I.

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Commonwealth v. Lynch, 820 A.2d 728, 733 (Pa. Super. 2003) (plea counsel not

ineffective where PCRA court found that counsel did not make any unwarranted

promises to defendant, and determination was supported by the record).

Appellant's claim is without merit.

II.

Appellant's second claim alleges that the Trial Court erred in denying his

PCRA claim that Appellant's guilty plea was entered involuntarily. This claim is

without merit.

In detennining whether a defendant understood the contents of the plea and

its consequences requires- a reviewing court to look to the totality of the

circumstances surrounding the plea. CommomFealth v. McCauley, 797 A.2d 920,

922 CPa. Super. 2001). To determine whether a plea was voluntarily, knowingly,

and intelligently entered into, the trial court must at a minimum detennine that

there was a factual basis for the plea, and that the defendant understood the nature

of the charges, his right to a jury trial, the presumption of his innocence, the

pennissible ranges of sentences, and that the judge is not bound by the tenns of

any plea agreement. NfcCauley, 797 A.2d at 922. A defendant who pleads guilty is

under an obligation to answer all questions truthfuIly, and cannot later challenge a

guilty plea by claiming that he lied under oath. Commonwealth v. Jones, 596 A.2d

885,888 (Pa. Super. 1991).

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Appellant specifically alleges that his plea was induced based on his reliance

on a sentencing promise of five to ten years. However, as noted above, the Court

found that there was no promise made with respect to a sentence, and that

Appellant acknowledged during his oral and written guilty plea colloquys that he

was not promised anything in exchange for his guilty plea. See supra, pp. 7-8. The

record supports the peRA Court's findings that Appellant was not promised a

specific sentence, and that Appellant entered a knowing and voluntary guilty plea.

Commonwealth v. Johnson, 868 A.2d 1278, 1282-1283 CPa. Super. 2005) (as

petitioner failed to show that counsel was ineffective, the court properly denied

petitioner's PCRA claim that his guilty plea was unlawfully induced).

Appellant's claim is without merit.

Ill.

Appellant's third claim alleges that the Trial Court erred in denying

Appellant's PCRA claim that the sentence imposed was unreasonable, manifestly

excessive, and an abuse of discretion. Specifically, Appellant claims that the

sentence is unreasonable and manifestly excessive because the Trial Court abused

its discretion in failing to place on the record adequate reasons for imposing an

aggravated range sentence and for sentencing Appellant consecutively. This claim

challenges the discretionary aspects of Appellant's sentence, and such challenges

are not cognizable under the PCRA. Therefore, the Trial Court properly denied

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, I 1" ( .

Appellant's PCRA claim as it was not cognizable under the peRA. See

Commonwealth v. Fowler, 930 A.2d 586, 593 (Pa. Super. 2007). Appellant's claim

is witho~t merit. 10

IV.

Appellant, in his final claim, alleges that the Trial Court erred in denying his

PCRA claim that Attorney Seman was ineffective for failing to object and preserve

the above issues by fi ling a post sentence motion, motion to withdraw guilty plea,

or notice of appeal. This claim is without merit.

The PCRA Court held as follows:

As to Issue 4, that counsel was ineffective for failing to preserve the first three issues of the post-sentence motion, a motion to withdraw guilty plea and/or notice of appeal, [the] Court has address( ed]the particulars of the three claims. Insofar as this is an independent claim, it is without merit and the Court incorporates the record previously made at the hearing itself and all previous proceedings and filings.

(P.T. 22).

Insofar as Appellant is alleging that counsel was ineffective for failing to

object to the sentence as unreasonable and manifestly excessive, and for failing to

file a post-sentence motion and appeal alleging the same, Appellant's claim is

without merit. See supra Part III. Thus, the record supports the PCRA Court's

10 Further, this claim cannot be raised for the first time on appeal. Appellant failed to preserve this claim either at the time of his sentencing or in a pose sentence motion, and thus this claim is waived on appeal. Commonwealth v. Jones, 858 A.2d 1198, 1204 (Pa. Super. 2004) (challenge to

the discretionary aspects of defendant's sentence deemed waived on appeal where defendant failed to preserve the claim).

II

,. ,. , ,'"

finding that the underlying claims lacked merit, and that Appellant's counsel was

not ineffective. See Lawrence, 960 A.2d at 478-480 (PCRA Court properly denied

defendant's claim that counsel was ineffective for failing to raise and preserve

challenge to discretionary aspects of defendant's sentence).

This claim is without merit.

CONCLUSION

Based upon the foregoing, the judgment of sentence imposed by this Court

should be affinned.

By the Court,

'gt. I,'~ '.

Date r !

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