Com. v. Laughbaum, L.

C
J-S43032-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA       :   IN THE SUPERIOR COURT OF
                                    :        PENNSYLVANIA
                   Appellee         :
                                    :
              v.                    :
                                    :
 LANA SUE LAUGHBAUM                 :
                                    :
                   Appellant        :        No. 516 WDA 2020

          Appeal from the PCRA Order Entered March 24, 2020
           In the Court of Common Pleas of Jefferson County
          Criminal Division at No(s): CP-33-CR-0000007-2018


 COMMONWEALTH OF PENNSYLVANIA       :   IN THE SUPERIOR COURT OF
                                    :        PENNSYLVANIA
                   Appellee         :
                                    :
              v.                    :
                                    :
 LANA SUE LAUGHBAUM                 :
                                    :
                   Appellant        :        No. 517 WDA 2020

          Appeal from the PCRA Order Entered March 24, 2020
           In the Court of Common Pleas of Jefferson County
          Criminal Division at No(s): CP-33-CR-0000264-2018


 COMMONWEALTH OF PENNSYLVANIA       :   IN THE SUPERIOR COURT OF
                                    :        PENNSYLVANIA
                   Appellee         :
                                    :
              v.                    :
                                    :
 LANA SUE LAUGHBAUM                 :
                                    :
                   Appellant        :        No. 518 WDA 2020

          Appeal from the PCRA Order Entered March 24, 2020
           In the Court of Common Pleas of Jefferson County
          Criminal Division at No(s): CP-33-CR-0000265-2018
J-S43032-20


 COMMONWEALTH OF PENNSYLVANIA         :   IN THE SUPERIOR COURT OF
                                      :        PENNSYLVANIA
                   Appellee           :
                                      :
              v.                      :
                                      :
 LANA SUE LAUGHBAUM                   :
                                      :
                   Appellant          :      No. 519 WDA 2020

          Appeal from the PCRA Order Entered March 24, 2020
           In the Court of Common Pleas of Jefferson County
          Criminal Division at No(s): CP-33-CR-0000266-2018


 COMMONWEALTH OF PENNSYLVANIA         :   IN THE SUPERIOR COURT OF
                                      :        PENNSYLVANIA
                   Appellee           :
                                      :
              v.                      :
                                      :
 LANA SUE LAUGHBAUM                   :
                                      :
                   Appellant          :      No. 520 WDA 2020

          Appeal from the PCRA Order Entered March 24, 2020
           In the Court of Common Pleas of Jefferson County
          Criminal Division at No(s): CP-33-CR-0000267-2018


 COMMONWEALTH OF PENNSYLVANIA         :   IN THE SUPERIOR COURT OF
                                      :        PENNSYLVANIA
                   Appellee           :
                                      :
              v.                      :
                                      :
 LANA SUE LAUGHBAUM                   :
                                      :
                   Appellant          :      No. 521 WDA 2020

          Appeal from the PCRA Order Entered March 24, 2020
           In the Court of Common Pleas of Jefferson County
          Criminal Division at No(s): CP-33-CR-0000268-2018




                                -2-
J-S43032-20


 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                   Appellee               :
                                          :
              v.                          :
                                          :
 LANA SUE LAUGHBAUM                       :
                                          :
                   Appellant              :       No. 522 WDA 2020

           Appeal from the PCRA Order Entered March 24, 2020
            In the Court of Common Pleas of Jefferson County
           Criminal Division at No(s): CP-33-CR-0000582-2018


 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                   Appellee               :
                                          :
              v.                          :
                                          :
 LANA SUE LAUGHBAUM                       :
                                          :
                   Appellant              :       No. 523 WDA 2020

           Appeal from the PCRA Order Entered March 24, 2020
            In the Court of Common Pleas of Jefferson County
           Criminal Division at No(s): CP-33-CR-0000392-2018


BEFORE: SHOGAN, J., STABILE, J., and KING, J.

MEMORANDUM BY KING, J.:                        FILED: March 19, 2021

     Appellant, Lana Sue Laughbaum, appeals from the orders entered in the

Jefferson County Court of Common Pleas, which denied her first petition filed

under the Post Conviction Relief Act (“PCRA”), at 42 Pa.C.S.A. §§ 9541-9546.

We affirm and grant counsel’s petition to withdraw.

     The relevant facts and procedural history of this case are as follows. In

2018, the Commonwealth charged Appellant with multiple counts of bad


                                    -3-
J-S43032-20


checks and theft by deception.     These charges stemmed from Appellant’s

attempts to sell timber on her land despite having a lien on the property which

forbid her from doing so until the lien was satisfied.       The PCRA court

summarized the subsequent case history as follows:

         [Appellant] met [plea counsel] for the first time at [the]
         Magisterial District Judge[’s]…office in Punxsutawney.
         There she discussed with him the civil happenings and
         litigation that gave rise to her criminal charges. [Plea
         counsel] advised her that he did not feel comfortable or
         competent to deal with the complex civil issues her defense
         would entail but offered to find her another attorney who
         did. When she later learned that having a new attorney
         would mean an additional delay, however, she elected to
         wait and see what kind of plea deal the Commonwealth was
         willing to offer her.

         After exchanging a few letters with her, [plea counsel] had
         [Appellant] transported to his office on January 14, 2019 to
         review discovery and answer her questions. He had already
         conveyed the Commonwealth’s offer of 18 months [to] 10
         years in prison and advised her that the [c]ourt was willing
         to give her time served [to] 10 years if she pled that day—
         a sentence the Commonwealth formally offered in the
         meantime. That would mean pleading to 2 [misdemeanor
         one] counts of Bad Check[s] and 6 [felony three] counts of
         Theft by Deception, [plea counsel] explained, and receiving
         concurrent sentences on each charge. Either option, he
         conveyed, would involve being subject to the terms and
         conditions of parole until 10 years had expired—a
         circumstance that raised a number of questions in
         [Appellant’s] mind. She wanted to know, for instance, how
         long it would take to get paroled and whether she would be
         permitted to relocate to California or Utah. [Plea counsel]
         was unable to answer all of her questions and frankly told
         her so. He advised her, however, that classification would
         likely take 4 [to] 6 months and that both her parole date
         and her ability to relocate were discretionary to the Parole
         Board.

         Though convinced her rights had been violated during the

                                     -4-
J-S43032-20


           aforementioned civil litigation[1] and that these criminal
           charges were bogus, [Appellant] was concerned that she
           could not get a fair trial. A local jury, she thought, might be
           biased against her since she was originally from New York.
           She was also concerned, as was [plea counsel], that its
           members would have trouble understanding her complex
           defense, which depended on them appreciating the nuances
           of the prior civil litigation and agreeing with her assessment
           that its outcome represented a derogation of justice. She
           thus agreed to go forward with the open plea under the
           terms and conditions [plea counsel] had explained to her,
           but only if she could plead no contest.

           At 12:12 p.m. that same day, the district attorney called the
           cases…, announcing that a plea deal had been reached.
           Referring to the plea colloquy he had already completed and
           explained to his client, [plea counsel] confirmed its specific
           terms as follows: “My client entered a no contest plea to the
           above charges and received time served to ten years SCI on
           each theft by deception concurrent and time served to five
           years SCI on each bad checks also concurrent [and the
           Commonwealth agreed to] nolle pros others including
           pending game law summaries.” [Appellant] then affirmed
           that she understood the legal effects of pleading no contest
           rather than not guilty; the elements of the offenses to which
           she was pleading; the maximum and guideline sentencing
           ranges assigned to each; and the facts the Commonwealth
           had alleged in support of the charges. [Plea counsel], who
           had already explained each of those things to his client, was
           directing her to the corresponding information on the
           written colloquy as the [c]ourt was questioning her.

           After the [c]ourt delivered the sentence, [Appellant]
           affirmed that she understood its terms and conditions.2 She
           further acknowledged that she understood her post-
           sentence and appeal rights, and left the courthouse without
           asking any further questions of either her attorney or the
           [c]ourt. Housed in the Jefferson County Jail for 2-4 more
           weeks, she also did not reach out to either one before being
           transferred to the D.O.C. Confident that she had received
           precisely the sentence she had agreed to and was expecting,
____________________________________________


1   The record does not specify the details of the civil litigation.

                                           -5-
J-S43032-20


         [plea counsel] did not reach out to her, either. [On February
         5, 2019, plea counsel filed a motion to withdraw and
         indicated no post-sentence motions or notice of appeal
         would be filed.     The court permitted plea counsel to
         withdraw on February 11, 2019.]

            2 By order dated January 22, 2019, the [c]ourt
            subsequently corrected what would otherwise have
            been an illegal sentence, assessing the maximum at 7
            years rather than 10 and recalculating [Appellant]’s
            RRRI date.

         Nearly ten months after being sentenced, having neither
         filed a direct appeal nor asked [plea counsel] to do so on
         her behalf, [Appellant] filed the subject PCRA petition [on
         November 7, 2019]. She knew by then that the Parole
         Board was not going to approve her proposed relocation to
         California.

(PCRA Court Opinion, filed March 24, 2020, at 1-3) (internal citations and

footnote omitted).

      In her PCRA petition, Appellant alleged plea counsel was ineffective for,

inter alia, convincing her to enter an unknowing, involuntary, and unintelligent

plea. Appellant contended that, following her conversations with plea counsel,

she believed that if she pled nolo contendere, she would receive a time-served

sentence with immediate release, no parole, and permission to relocate to

California. Appellant claimed she did not find out until after sentencing that

her immediate release was not guaranteed, she was subject to ten years of

parole, and she could not relocate out of state. Appellant also attached to her

petition a handwritten copy of an alleged January 16, 2019 letter she sent to

plea counsel. In the letter, Appellant expresses her concern that her sentence

did not reflect the plea to which she thought she agreed, and requests that

                                     -6-
J-S43032-20


plea counsel pursue an appeal on her behalf.

      The court appointed PCRA counsel on November 13, 2019, and held a

PCRA hearing on March 17, 2020, during which both Appellant and plea

counsel testified.   Significantly, plea counsel denied having received the

January 16, 2019 letter during the following exchange:

         [PCRA Counsel]:       [Appellant] attached to her PCRA a
         letter she alleges she wrote to you January 16, 2019.

         [Plea Counsel]:       I looked at it when I was back there.

         [PCRA Counsel]:       Yeah. And I just set this up. I just
         want to tell you that the only letters that are contained in
         your file in this case—well, the last letter from [Appellant]
         to you is August of 2018.

         [Plea Counsel]:       Okay.

         [PCRA Counsel]:       Okay. If a defendant were to write you
         a letter, would it be your practice to stick it in the file?

         [Plea Counsel]:       Yeah, to stick it in the file. Like I said,
         even if to say in a case like this, I want to appeal, I would
         have said, what’s your basis for appeal. You know, we can’t
         challenge the legality of the sentence, we can’t challenge
         jurisdiction, and I’m saying generally if someone would just
         say I want to appeal the sentence, I always say on what
         basis. You know, we can’t just say you don’t like it. You
         need to tell me what the issue is, but I would have
         responded.

         [PCRA Counsel]:       This is the January 16th, 2019—

         [Plea Counsel]:       I looked at it. I have no recollection.

         [PCRA Counsel]:    Basically, she’s saying, hey, this isn’t
         the agreement. I want to appeal, kind of?

         [Plea Counsel]:      Had I received that, I would have
         written back to her.

                                       -7-
J-S43032-20



          [PCRA Counsel]:     Okay. And had you received it, you
          would have kept a copy at least in your file, correct?

          [Plea Counsel]:          Yes.

          [PCRA Counsel]:          And it’s not there. …

(N.T. PCRA Hearing, 3/17/20, at 45-46).

       On March 24, 2020, the court denied PCRA relief. Appellant filed timely

notices of appeal at each underlying docket number on April 16, 2020. The

court ordered Appellant on April 27, 2020, to file a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b). Instead, on April 29,

2020, counsel filed a Rule 1925(c)(4) statement of intent to file a

Turner/Finley2 brief. This Court consolidated Appellant’s appeals sua sponte

on May 7, 2020. On July 30, 2020, counsel filed a petition to withdraw and a

Turner/Finley brief in this Court.

       Preliminarily, before counsel can withdraw representation under the

PCRA, the law requires counsel to satisfy the mandates of Turner/Finley.

Commonwealth v. Karanicolas, 

836 A.2d 940

, 947 (Pa.Super. 2003).

          …Turner/Finley counsel must review the case zealously.
          Turner/Finley counsel must then submit a “no-merit”
          letter to the [PCRA] court, or brief on appeal to this Court,
          detailing the nature and extent of counsel’s diligent review
          of the case, listing the issues which the petitioner wants to
          have reviewed, explaining why and how those issues lack
          merit, and requesting permission to withdraw.


____________________________________________


2 Commonwealth v. Turner, 

518 Pa. 491

, 

544 A.2d 927

(1988);
Commonwealth v. Finley, 

550 A.2d 213

(Pa.Super. 1988) (en banc).

                                           -8-
J-S43032-20


Commonwealth v. Wrecks, 

931 A.2d 717

, 721 (Pa.Super. 2007).

Additionally, counsel must contemporaneously serve on Appellant copies of

the “no-merit” letter or brief, the petition to withdraw, and a letter advising

Appellant that she has the immediate right to file a brief in this Court pro se

or with new privately-retained counsel. Commonwealth v. Muzzy, 

141 A.3d

509

(Pa.Super. 2016). “Substantial compliance with these requirements will

satisfy the criteria.” Karanicolas, supra at 947.

       Instantly, counsel submitted a Turner/Finley brief on appeal and a

petition to withdraw as counsel.          Both the brief and counsel’s petition to

withdraw demonstrate that counsel has made a conscientious examination of

the record in this case and determined the appeal is wholly frivolous. Counsel

notified Appellant of counsel’s request to withdraw, advised Appellant of her

right to retain new counsel and/or raise any points she might deem worthy of

consideration, and furnished Appellant with a copy of the petition and the brief

prepared for this appeal. Thus, counsel has substantially complied with the

technical requirements of Turner/Finley. See

id. Accordingly, we proceed

with our independent assessment. See 

Turner, supra

at 

494-95, 544 A.2d

at 928-29

(stating appellate court must conduct independent analysis and

agree with counsel that appeal is frivolous).

       Counsel raises the following issues on Appellant’s behalf:3


____________________________________________


3Appellant has not responded to the Turner/Finley brief pro se or with newly
retained private counsel.

                                           -9-
J-S43032-20


          [Whether Appellant] was sentenced above the maximum
          sentence allowed by law?

          [Whether Appellant]’s pleas of “no contest” were not
          voluntarily, knowingly, and intelligently made?

          [Whether Appellant]’s [plea counsel] was ineffective for
          allowing her to enter pleas that were not knowingly made?

          [Whether t]he sentencing court was biased and prejudiced
          and should have recused himself from taking [Appellant]’s
          pleas and sentencing her?

          [Whether Appellant] was not aware, at [the] time of
          entering her pleas, of the nature of the charges and possible
          sentence ranges?

          [Whether Appellant]’s [plea] counsel was ineffective for
          failing to file post-sentence motions and direct appeals from
          the judgments of sentences?

          [Whether t]he trial court improperly engaged in the plea
          bargaining process in [Appellant]’s cases?

(Turner/Finley Brief at 4).4

       Our standard of review of the denial of a PCRA petition is limited to

examining whether the evidence of record supports the court’s determination


____________________________________________


4 In her first issue, Appellant alleges the court sentenced her above the lawful
maximum, where the court imposed a ten-year sentence on her felony-three
theft by deception convictions. Here, the court initially imposed an illegal
maximum sentence of ten years’ incarceration for the third-degree felony theft
by deception convictions. Realizing its error, however, the court amended the
sentence on January 22, 2019, to a maximum sentence of seven years’
incarceration. Thus, Appellant’s sentence is no longer illegal, and this issue
merits no relief. See 18 Pa.C.S.A. § 1103(3) (explaining term of incarceration
for third-degree felony is fixed at no more than seven years);
Commonwealth v. Berry, 

877 A.2d 479

, 482 (Pa.Super. 2005), appeal
denied, 

591 Pa. 688

, 

917 A.2d 844

(2007) (stating: “[A]n illegal sentence is
one that exceeds the statutory limits”).

                                          - 10 -
J-S43032-20


and whether its decision is free of legal error. Commonwealth v. Conway,

14 A.3d 101

(Pa.Super. 2011), appeal denied, 

612 Pa. 687

, 

29 A.3d 795

(2011). 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). We do not give the same deference, however, to the court’s legal

conclusions.   Commonwealth v. Ford, 

44 A.3d 1190

(Pa.Super. 2012).

Traditionally, credibility issues are resolved by the trier of fact who had the

opportunity to observe the witnesses’ demeanor. Commonwealth v. Abu-

Jamal, 

553 Pa. 485

, 

720 A.2d 79

(1998), cert. denied, 

528 U.S. 810

, 

120

S. Ct. 41

, 

145 L. Ed. 2d 38

(1999). “A PCRA court passes on witness credibility

at PCRA hearings, and its credibility determinations should be provided great

deference by reviewing courts.” Commonwealth v. R. Johnson, 

600 Pa.

329

, 356-357, 

966 A.2d 523

, 539 (2009).

      Appellant’s remaining issues concern allegations of plea counsel’s

ineffectiveness. Pennsylvania law presumes counsel has rendered effective

assistance.    Commonwealth v. Williams, 

597 Pa. 109

, 

950 A.2d 294

(2008).   When asserting a claim of ineffective assistance of counsel, the

petitioner is required to demonstrate that: (1) the underlying claim is of

arguable merit; (2) counsel had no reasonable strategic basis for his action or

inaction; and, (3) but for the errors and omissions of counsel, there is a

reasonable probability that the outcome of the proceedings would have been


                                    - 11 -
J-S43032-20


different. Commonwealth v. Kimball, 

555 Pa. 299

, 

724 A.2d 326

(1999).

The failure to satisfy any prong of the test for ineffectiveness will cause the

claim to fail. 

Williams, supra

.

      “The threshold inquiry in ineffectiveness claims is whether the

issue/argument/tactic which counsel has foregone and which forms the basis

for the assertion of ineffectiveness is of arguable merit….” Commonwealth

v. Pierce, 

537 Pa. 514

, 524, 

645 A.2d 189

, 194 (1994). “Counsel cannot be

found ineffective for failing to pursue a baseless or meritless claim.”

Commonwealth v. Poplawski, 

852 A.2d 323

, 327 (Pa.Super. 2004).

         Once this threshold is met we apply the ‘reasonable basis’
         test to determine whether counsel’s chosen course was
         designed to effectuate his client’s interests. If we conclude
         that the particular course chosen by counsel had some
         reasonable basis, our inquiry ceases and counsel’s
         assistance is deemed effective.

Pierce, supra

at 

524, 645 A.2d at 194-95

(internal citations omitted).

         Prejudice is established when [an appellant] demonstrates
         that counsel’s chosen course of action had an adverse effect
         on the outcome of the proceedings. The [appellant] must
         show that there is a reasonable probability that, but for
         counsel’s unprofessional errors, the result of the proceeding
         would have been different. A reasonable probability is a
         probability sufficient to undermine confidence in the
         outcome. In 

[Kimball, supra

], we held that a “criminal
         [appellant] alleging prejudice must show that counsel’s
         errors were so serious as to deprive the defendant of a fair
         trial, a trial whose result is reliable.”

Commonwealth v. Chambers, 

570 Pa. 3

, 21-22, 

807 A.2d 872

, 883 (2002)

(some internal citations and quotation marks omitted).

      In her second, third, and fifth issues combined, Appellant argues plea

                                    - 12 -
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counsel was ineffective for leading her to enter an unknowing, unintelligent,

and involuntary plea. Appellant alleges plea counsel led her to believe she

would receive a sentence of time-served, with immediate release and no

parole.     Based upon this belief and in reliance on plea counsel’s advice,

Appellant contends she only answered “yes” to the oral and written plea

colloquies as a “mere formality” to achieve the sentence to which she thought

she had agreed.      (Turner/Finley Brief at 20).      Appellant concludes plea

counsel was ineffective and this Court must grant her appropriate relief. We

disagree.

      A nolo contendere or no contest plea is treated the same as a guilty plea

“in terms of its effect upon a case.” Commonwealth v. Leidig, 

850 A.2d

743

, 745 (Pa.Super. 2004), aff’d, 

598 Pa. 211

, 

956 A.2d 399

(2008).

“Allegations 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.” Commonwealth v. Moser, 

921

A.2d 526

, 531 (Pa.Super. 2007) (internal citation omitted).           “Where the

defendant enters [her] plea on the advice of counsel, the voluntariness of the

plea depends on whether counsel’s advice was within the range of competence

demanded of attorneys in criminal cases.”

Id.

Pennsylvania law does

not require the defendant to “be pleased with the

outcome of [her] decision to enter a plea of guilty[; a]ll that is required is that

[her] decision to plead guilty be knowingly, voluntarily and intelligently made.”


                                      - 13 -
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Id. at 528-29.

     A guilty plea will be deemed valid if the totality of the

circumstances surrounding the plea shows that the defendant had a full

understanding of the nature and consequences of her plea such that she

knowingly     and   intelligently   entered     the   plea   of   her   own   accord.

Commonwealth v. Fluharty, 

632 A.2d 312

(Pa.Super. 1993). Pennsylvania

law presumes the defendant is aware of what she is doing when she enters a

guilty plea, and the defendant bears the burden to prove otherwise.

Commonwealth v. Pollard, 

832 A.2d 517

, 523 (Pa.Super. 2003).

      Instantly, the PCRA court addressed Appellant’s plea-related claims as

follows:

           [T]he credible evidence does not support the idea that
           [Appellant] entered an involuntary plea. On the contrary,
           she entered the courtroom knowing that her overall
           sentence included a 10-year tail; knowing that she would be
           serving at least 4 [to] 6 months in prison for purposes of
           classification; knowing that she would be on parole for the
           remainder of the sentence; and knowing that her parole
           date and ability to relocate to California were matters left to
           the discretion of the Parole Board. She was further aware
           of the maximum penalties and applicable guideline ranges.
           [Plea counsel] had explained them to her prior to the
           hearing, and she stated on the record that she understood
           both her maximum sentencing liability and the terms of the
           deal she had reached with the Commonwealth. She cannot
           undo that now by insisting that she thought the words
           spoken in the courtroom that day were effectively
           meaningless. See Commonwealth v. Muhammad, 

794
A.2d 378

, 384 (Pa.Super. 2002) (“We note that one is bound
           by one’s statements made during a plea colloquy, and may
           not successfully assert claims that contradict such
           statements”).

           By [Appellant]’s account, what happened on January 14,
           2019 was that she went into [c]ourt believing she would get

                                       - 14 -
J-S43032-20


         the plea deal she alleged in her petition and assuming that
         the [c]ourt’s utterances and her replies were mere
         formalities that each needed to recite to accomplish what
         she wanted. What the record credibly suggests, though, is
         that she fabricated the alleged plea deal only after learning
         that the Parole Board would not approve her proposed
         relocation. What it suggests, moreover, is that she drafted
         and pre-dated a letter she could attach to her petition to
         purportedly confirm that she knew even 2 days after her
         hearing that the sentence she received did not comport with
         the actual terms to which the parties had agreed off the
         record. Had she in fact drafted and mailed it on January 16,
         2019, it would have been in her file at the Public Defender’s
         Office.

(PCRA Court Opinion at 3-4). The record supports the PCRA court’s analysis

and we see no reason to disrupt the court’s credibility determinations in favor

of plea counsel and against Appellant. See R. 

Johnson, supra

; 

Conway,

supra

.

      Here, Appellant engaged in thorough oral and written plea colloquies

fully communicating her decision to plead nolo contendere on January 14,

2019. Appellant acknowledged the nature of the charges against her, her

understanding of the maximum penalty and restitution required, and the

rights she relinquished by entering a plea.    Nothing in Appellant’s oral or

written colloquies suggests Appellant’s plea was anything but knowing,

intelligent, and voluntary. See 

Fluharty, supra

. Appellant cannot now claim

that the oral and written colloquies were “mere formalities” to achieve her

desired sentence, nor can she rely on the fabricated January 16, 2019 letter

to prove that she anticipated a different result at sentencing. See 

Pollard,

supra

. Consequently, Appellant’s ineffectiveness claims in connection with

                                    - 15 -
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her plea of nolo contendere merit no relief. See 

Pierce, supra

.

      In her fourth issue, Appellant argues plea counsel was ineffective for

failing to request that the trial judge recuse himself from taking Appellant’s

pleas and sentencing her, where the same judge placed the lien on Appellant’s

land. Appellant contends the lien prevented her from timbering, which led to

the instant bad checks and theft by deception charges. Appellant concludes

she is entitled to relief. We disagree.

      “[A] party seeking recusal or disqualification must raise the objection at

the earliest possible moment or that party will suffer the consequence of being

time barred.” Commonwealth v. Pappas, 

845 A.2d 829

, 846 (Pa.Super.

2004), appeal denied, 

580 Pa. 712

, 

862 A.2d 1254

(2004). Furthermore, “[i]t

is the burden of the party requesting recusal to produce evidence establishing

bias, prejudice or unfairness which raises a substantial doubt as to the jurist’s

ability to preside impartially.” Commonwealth v. Birdsong, 

611 Pa. 203

,

222, 

24 A.3d 319

, 330 (2011). “In considering a recusal request, the jurist

must first make a conscientious determination of his or her ability to assess

the case in an impartial manner, free of personal bias or interest in the

outcome.” Commonwealth v. Flor, 

606 Pa. 384

, 443, 

998 A.2d 606

, 641-

42 (2010), cert. denied, 

563 U.S. 941

, 

131 S. Ct. 2102

, 

179 L. Ed. 2d 900

(2011).   “The jurist must then consider whether his or her continued

involvement in the case creates an appearance of impropriety and/or would

tend to undermine public confidence in the judiciary.”

Id. at 443, 998

A.2d


                                     - 16 -
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at 642.

        Instantly, the PCRA court addressed this issue as follows:

          There is...no merit to [Appellant]’s claim that [plea counsel]
          was ineffective for failing to ask [the judge] to recuse from
          [Appellant’s] cases.      In the first instance, [Appellant]
          testified herself that she did not broach the subject [with
          plea counsel]. She simply concluded that her attorney
          should have perceived from the way it had handled her civil
          cases that the [c]ourt was biased against her. [Plea
          counsel], though, was not familiar with the civil litigation
          beyond what she had told him—a fact she knew based on
          discussions regarding his intention to bring in another
          attorney if she wished to pursue a trial. Other than her
          opinion, moreover, she offered no evidence to indicate that
          the [c]ourt’s rulings in those matters were even in error, let
          alone the result of a personal animus.

(PCRA Court Opinion at 5). We agree with the court’s analysis of this issue.

Appellant failed to present any evidence to support her claim that the court

was prejudiced against her due to its previous involvement in her civil

proceedings.     See 

Birdsong, supra

.          Further, Appellant has failed to

demonstrate how plea counsel’s failure to request the judge’s recusal

prejudiced her, where the court simply sentenced Appellant according to the

terms of the plea agreement she had entered into with the Commonwealth.

See 

Chambers, supra

. Thus, this claim merits no relief.

        In her sixth issue, Appellant argues plea counsel was ineffective for

failing to file post-sentence motions or direct appeals on her behalf, where

Appellant claims she requested that he do so because the sentence she

received did not adhere to the terms of the plea agreement as she understood

them.     In support of her argument, Appellant relies on the handwritten

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J-S43032-20


January 16, 2019 letter she attached to her PCRA petition.              Appellant

concludes plea counsel’s ineffectiveness entitles her to relief. We disagree.

      “Before a court will find ineffectiveness of counsel for failing to file a

direct appeal, the defendant must prove that [she] requested an appeal and

that counsel disregarded that request.” Commonwealth v. Knighten, 

742

A.2d 679

, 682 (Pa.Super. 1999), appeal denied, 

563 Pa. 659

, 

759 A.2d 383

(2000) (citing Commonwealth v. Lantzy, 

558 Pa. 214

, 

736 A.2d 564

(1999)

(holding counsel will be deemed ineffective if counsel is unjustified in failing

to file requested direct appeal)). “Mere allegations will not suffice; the burden

is on Appellant to plead and prove that [her] request for an appeal was ignored

or rejected by [plea] counsel.” Commonwealth v. Harmon, 

738 A.2d 1023

,

1024 (Pa.Super. 1999), appeal denied, 

562 Pa. 666

, 

753 A.2d 815

(2000).

“In addition, if a post-conviction court’s credibility determination is supported

by the record, it is binding on the appellate court.” 

Knighten, supra

at 682.

      Instantly, in addressing this issue, the PCRA court reasoned:

         [Appellant]…used that letter to set up the claim that she was
         denied her right to file a direct appeal. Clearly an intelligent
         woman, she doubtlessly realized that [plea counsel] would
         have been obligated to file an appeal on her behalf if she
         requested it in a timely fashion. Because the [c]ourt does
         not believe that she wrote the letter before developing her
         PCRA claims, though, that document has no evidentiary
         value.

         A defendant’s request is not the only thing that should make
         an attorney consider the efficacy of a direct appeal, of
         course. Defense counsel is also bound to consult with his
         client regarding the advantages and disadvantages of taking
         an appeal if the circumstances would lead him to believe she

                                     - 18 -
J-S43032-20


         would want to appeal. Here, though, [plea counsel] had no
         reason to wonder whether [Appellant] might want to appeal
         her sentence. Not only had she received precisely the
         sentence to which she had agreed when she went before the
         [c]ourt, but the subsequent correction order left [her] with
         an even better sentence tha[n] she was anticipating. With
         no request from [Appellant] and no independent reason to
         believe [Appellant] might want to take an appeal, therefore,
         [plea counsel] was not ineffective for failing to file one.

(PCRA Court Opinion at 4-5) (internal citation omitted).

      Here, Appellant relied on the January 16, 2019 letter to argue that she

had asked plea counsel to file post-sentence motions and/or a direct appeal,

which counsel ignored.      During the PCRA hearing, however, plea counsel

testified that he did not receive any such letter, and he would have placed a

letter in Appellant’s file if he had received one. The PCRA court found the

testimony of plea counsel credible and the testimony from Appellant

incredible.   The record supports the PCRA court’s analysis, and we see no

reason to disrupt the court’s credibility determinations.       See R. 

Johnson,

supra

; 

Knighten, supra

. See also 

Conway, supra

. Therefore, Appellant’s

ineffectiveness claim merits no relief. See 

Pierce, supra

.

      In her seventh and final issue, Appellant argues plea counsel was

ineffective for failing to object to the trial court’s improper participation in the

plea-bargaining process. Appellant contends the trial court engaged in the

plea-bargaining process when plea counsel approached the court prior to the

plea/sentencing hearing and the court informed plea counsel that it would

accept a time-served to ten-year aggregate sentence, rather than the 18-


                                      - 19 -
J-S43032-20


month to ten-year sentence the Commonwealth had initially offered.

Appellant concludes plea counsel’s ineffectiveness entitles her to relief. We

disagree.

     “[A] plea entered on the basis of a sentencing agreement in which the

judge participates cannot be considered voluntary.” Commonwealth v. M.

Johnson, 

875 A.2d 328

, 331 (Pa.Super. 2005), appeal denied, 

586 Pa. 748

,

892 A.2d 822

(2005).

        A trial judge is forbidden from participating in any respect
        in the plea bargaining process prior to the offering of a guilty
        plea.     When a judge becomes a participant in plea
        bargaining he brings to bear the full force and majesty of
        his office…. The unquestioned pressure placed on the
        defendant because of the judge’s unique role inevitably
        taints the plea.

Id. at 331-32

(quoting Commonwealth v. Evans, 

434 Pa. 52

, 55, 

252 A.2d

689

, 691 (1969)).

     Instantly, the court explained:

        Also lacking was evidence that the [c]ourt impermissibly
        inserted itself into plea negotiations, which means that [plea
        counsel] had no objection to make in that regard.

        What [plea] counsel told his client on January 14, 2019, was
        that the [c]ourt was willing to give her a time served
        minimum while adhering to the Commonwealth’s proposed
        maximum if she entered open pleas. Making more of it than
        was warranted, she construed that information to mean that
        the [c]ourt was actively constructing the terms of an
        agreement it deemed to be suitable. As the record reflects,
        though, what happened was that the Commonwealth
        ultimately came back with an offer of time served [to] 10
        years in exchange for her pleading to eight separate counts,
        … an offer she and the [c]ourt both accepted.


                                    - 20 -
J-S43032-20


         Beyond that, counsel’s failure to [object to the court’s]
         alleged interference with plea negotiations did not prejudice
         [Appellant]. The Commonwealth’s original offer was for a
         10-year maximum, and it never retreated from that
         number. There is thus nothing to suggest that the [c]ourt’s
         involvement, however extensive she has construed it to
         have been, resulted in a sentence greater than she would
         have gotten otherwise.

(PCRA Court Opinion at 5). The record supports the court’s analysis. The

court’s statement that it would accept a lesser minimum sentence does not

constitute impermissible “participation” in the plea-bargaining process in this

case. See M. 

Johnson, supra

. Additionally, Appellant did not demonstrate

prejudice. See 

Chambers, supra

. Following our independent review of the

record, we agree with counsel that Appellant’s appeal is frivolous.       See

Turner, supra

. Accordingly, we affirm the court’s orders denying PCRA relief

and grant counsel’s petition to withdraw.

      Orders affirmed; counsel’s petition to withdraw is granted.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/19/2021




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