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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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.                   :
                                          :
LEONARD JAMES FORBES,                     :          No. 1951 WDA 2015
                                          :
                          Appellant       :


               Appeal from the PCRA Order, November 13, 2015,
                in the Court of Common Pleas of Bedford County
               Criminal Division at Nos. CP-05-CR-0000307-2013,
                            CP-05-CR-0000315-2013


BEFORE: FORD ELLIOTT, P.J.E., LAZARUS AND JENKINS, JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                 FILED OCTOBER 31, 2016

        Leonard James Forbes appeals from the November 13, 2015 order

entered in the Court of Common Pleas of Bedford County that dismissed his

petition filed pursuant to the Post Conviction Relief Act, 42 Pa.C.S.A.

§§ 9541-9546 (“PCRA”). We affirm.

        The PCRA court set forth the following:

              On October 29, 2013, [appellant] pled no contest to
              two counts of Burglary and two counts of Terroristic
              Threats,[1] in exchange for a firm bargain of 5 to
              10 years to be served in State Prison. We sentenced
              [appellant] on the same day of entering his plea.
              Nearly a year later, through appointed counsel,
              [appellant] filed an Amended Petition for Post
              Conviction Collateral Relief.       In his petition,
              [appellant] advanced the claim that trial counsel was
              ineffective and that [appellant] was prejudiced by

1
    18 Pa.C.S.A. §§ 3502(a)(1) and 2706(a)(1)(ii), respectively.
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               such ineffectiveness in that his plea was not
               voluntary, intelligent, and knowing.         We held
               evidentiary hearings on May 11, 2015 and July 2,
               2015 and September 3, 2015. On November 13,
               2015, we denied [appellant’s] petition in its entirety.
               This appeal follows.

PCRA court opinion, 2/5/16 at 1 (italics in original).

      Appellant raises the following issues for our review:

               A.         Whether or not the [PCRA] Court erred in
                          finding that the record did not establish beyond
                          a preponderance of the evidence that
                          [appellant] received inaccurate advice that
                          prejudiced him and made his plea unknowing,
                          misinformed, and involuntary[?]

               B.         Whether or not the record clearly established
                          that [appellant] should be allowed to withdraw
                          his plea because the record demonstrates that
                          he did not understand the facts and
                          circumstances surrounding his case to such a
                          deep extent and was so confused regarding
                          Counsel’s advice that his plea could not have
                          been knowingly, intelligently, and voluntarily
                          given[?]

Appellant’s brief at 5.

      In PCRA appeals, our scope of review “is limited to the findings of the

PCRA court and the evidence on the record of the PCRA court’s hearing,

viewed    in        the     light   most   favorable   to   the   prevailing   party.”

Commonwealth v. Sam, 952 A.2d 565, 573 (Pa. 2008) (internal quotation

omitted). Because most PCRA appeals involve questions of fact and law, we

employ a mixed standard of review.              Commonwealth v. Pitts, 981 A.2d

875, 878 (Pa. 2009).            We defer to the PCRA court’s factual findings and



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credibility determinations supported by the record.      Commonwealth v.

Henkel, 90 A.3d 16, 20 (Pa.Super. 2014) (en banc).           In contrast, we

review the PCRA court’s legal conclusions de novo. Id.

     Here, appellant asserts ineffective assistance of plea counsel.

           In evaluating claims of ineffective assistance of
           counsel, we presume that counsel is effective.
           Commonwealth v. Rollins, 558 Pa. 532, 738 A.2d
           435, 441 (Pa. 1999).              To overcome this
           presumption, Appellant must establish three factors.
           First, that the underlying claim has arguable merit.
           See Commonwealth v. Travaglia, 541 Pa. 108,
           661 A.2d 352, 356 (Pa. 1995). Second, that counsel
           had no reasonable basis for his action or inaction.
           Id. In determining whether counsel’s action was
           reasonable, we do not question whether there were
           other more logical courses of action which counsel
           could have pursued; rather, we must examine
           whether counsel’s decisions had any reasonable
           basis.       See Rollins, 738 A.2d at 441;
           Commonwealth v. (Charles) Pierce, 515 Pa. 153,
           527 A.2d 973, 975 (Pa. 1987). Finally, “Appellant
           must establish that he has been prejudiced by
           counsel’s ineffectiveness; in order to meet this
           burden, he must show that ‘but for the act or
           omission in question, the outcome of the proceedings
           would have been different.’” See Rollins, 738 A.2d
           at 441 (quoting Travaglia, 661 A.2d at 357). A
           claim of ineffectiveness may be denied by a showing
           that the petitioner’s evidence fails to meet any of
           these prongs.       Commonwealth v. (Michael)
           Pierce, 567 Pa. 186, 786 A.2d 203, 221-22 (Pa.
           2001); Commonwealth v. Basemore, 560 Pa. 258,
           744     A.2d    717,    738      n.23    (Pa.    2000);
           Commonwealth v. Albrecht, 554 Pa. 31, 720 A.2d
           693, 701 (Pa. 1998) (“If it is clear that Appellant has
           not demonstrated that counsel’s act or omission
           adversely affected the outcome of the proceedings,
           the claim may be dismissed on that basis alone and
           the court need not first determine whether the first
           and second prongs have been met.”).


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Commonwealth v. Washington, 927 A.2d 586, 594 (Pa. 2007).

      In the context of a plea, a claim of ineffectiveness may provide relief

only if the alleged ineffectiveness caused an involuntary or unknowing plea.

See Commonwealth v. Mendoza, 730 A.2d 503, 505 (Pa.Super. 1999).

“[A] defendant is bound by the statements which he makes during his plea

colloquy.”     Commonwealth v. Barnes, 687 A.2d 1163, 1167 (Pa. 1997)

(citations omitted).   As such, a defendant may not assert grounds for

withdrawing the plea that contradict statements made when he entered the

plea. Id. (citation omitted).

      Here, both of appellant’s issues challenge the PCRA court’s credibility

determinations. Specifically, appellant complains that his testimony at the

PCRA evidentiary hearing established that his plea was unknowing and

involuntary.     Where the record supports the PCRA court’s credibility

determinations and factual findings, however, we defer to the PCRA court.

See Henkel, 90 A.3d at 20.

      In this case, the PCRA court determined that plea counsel testified

clearly and credibly and that appellant entered his no-contest plea knowingly

and voluntarily. Our careful review of the record reveals that plea counsel

testified that he fully informed appellant of the defense theory that counsel

would have advanced at trial, but that he also informed appellant that the

jury would ultimately decide the case. (Notes of testimony, 9/3/15 at 16.)

Counsel also testified that he explained to appellant that just because


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appellant had some evidence that supported the proposed defense, he would

not “automatically win.”   (Id. at 16-17.) Counsel further testified that he

explained to appellant that “[t]here were some bad facts,” including the

likelihood of appellant’s daughter, an eyewitness, testifying against him.

(Id. at 17.)    The record also reflects that plea counsel explained the

difference between a guilty plea and a no-contest plea to appellant and

because appellant did not want to admit guilt or have his daughter testify

against him at trial, appellant chose to plead no contest. (Id. at 24-26.)

      Additionally, we note that the record demonstrates that appellant

executed a plea agreement prior to sentencing. (Plea agreement, 10/29/13;

Docket #30.) The on-the-record oral sentencing colloquy demonstrates that

appellant acknowledged the terms of the plea agreement and acknowledged

that he signed and understood his written plea colloquy.            (Notes of

testimony, 10/29/13 at 4-6). The following exchange then took place:

            [THE COURT]: And do you understand you have an
            absolute right to proceed to trial here today; you
            don’t have to plead guilty to anything?

            [APPELLANT]: Yes, sir.

            [THE COURT]: Is it your own decision and your
            decision alone to plead guilty -- or no contest, I’m
            sorry?

            [APPELLANT]: Yes.

            ....




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             THE COURT: Okay, now do you have any questions
             about the Plea Agreement or your rights before we
             go any further?

             [APPELLANT]: No, sir.

Notes of testimony, 10/29/13 at 8-9.

      Appellant cannot recant the representations he made in court when he

entered his plea. See Barnes, 687 A.2d at 1167. Additionally, the law does

not require that appellant be pleased with the outcome of his decision to

plead guilty. All that is required is that appellant’s decision to enter his plea

be made knowingly, voluntarily and intelligently. See Moser, 921 A.2d at

528-529. Therefore, in viewing the evidence in the light most favorable to

the Commonwealth, we conclude that appellant has failed to establish that

plea counsel was ineffective because the record supports the PCRA court’s

conclusion that appellant entered his plea voluntarily, knowingly, and

intelligently.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/31/2016




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