Com. v. McGlumphy, J. ( 2022 )


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  • J-S20034-22
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
    :        PENNSYLVANIA
    Appellee                :
    :
    v.                             :
    :
    JAY-C O'BRYAN MCGLUMPHY                    :
    :
    Appellant               :      No. 832 WDA 2021
    Appeal from the PCRA Order Entered December 7, 2020
    In the Court of Common Pleas of Erie County
    Criminal Division at No(s): CP-25-CR-0003895-2017
    BEFORE: NICHOLS, J., MURRAY, J., and KING, J.
    MEMORANDUM BY KING, J.:                        FILED: October 13, 2022
    Appellant, Jay-C O’Bryan McGlumphy, appeals nunc pro tunc from the
    order entered in the Erie County Court of Common Pleas, which dismissed his
    first petition filed under the Post Conviction Relief Act (“PCRA”).1 We affirm
    and grant counsel’s petition to withdraw.
    The PCRA court set forth the factual and procedural history of this case
    as follows:
    On June 6, 2016, at 9:31 p.m., the City of Erie Police
    Department responded to a report of shots fired on Lincoln
    Avenue near the Bayfront Parkway in Erie, Pennsylvania.
    When they arrived, they found Isiah Wiley dead in the
    driver’s seat of a white 2003 Cadillac.        There police
    interviewed Luis Lopez, who had been in the passenger seat
    when Wiley was killed. Lopez told police that an unknown
    assailant or assailants pulled over in another vehicle, fired
    several shots into the Cadillac, and fled the scene. The
    ____________________________________________
    1   42 Pa.C.S.A. §§ 9541-9546.
    J-S20034-22
    bullets spared Lopez, but claimed the life of Wiley. Other
    witnesses described the vehicle carrying the shooter as dark
    in color. Police found three 9-millimeter shell casings and a
    bullet at the crime scene. The coroner ruled the victim’s
    death a homicide.
    Police later found a Taurus PT111 9-millimeter
    semiautomatic handgun at the scene of a separate incident
    on June 12, 2016. Detectives were able to lift a latent
    fingerprint from the gun. The Pennsylvania State Police
    (PSP) Crime Laboratory issued a report identifying the gun
    as the one which had fired the three 9-millimeter casings
    and the bullet from the Lincoln Avenue crime scene. PSP
    also identified the fingerprint found on the handgun as the
    left thumb print of [Appellant]….
    On August 1, 2017, Police interviewed [Appellant regarding]
    the June 6, 2016, incident. [Appellant] told police that he
    was picked up that night by three others in a dark-colored
    SUV. [Appellant] and the other individuals found a white
    Cadillac in which Lopez was a passenger. They followed the
    Cadillac, lost it, but found it again near the 1000 block of
    Lincoln Avenue near the Bayfront Parkway. The other
    individuals in the vehicle handed [Appellant] a loaded gun
    and directed him to fire at the Cadillac. He fired the gun six
    or seven times, at which point he noticed the victim slumped
    over in the driver’s seat. [Appellant] had been 17 at the
    time of the incident.
    On October 27, 2017, [Appellant] was charged with several
    counts related to the June 6, 2016, incident, including
    criminal homicide, murder in the first degree, criminal
    conspiracy to commit murder in the first degree, aggravated
    assault, recklessly endangering another person, possession
    of an instrument of crime, possession of a firearm by a
    minor, firearms not to be carried without a license, and
    criminal attempt at murder in the first degree.          The
    Commonwealth maintained that, although Wiley was the
    ultimate victim of the shooting, Lopez had been the intended
    target. (See N.T. Sentencing, 12/12/18, at 18).
    On November 1, 2017, Attorney Keith H. Clelland was
    appointed to represent [Appellant] on the charges related
    to the June 6, 2016, incident. On March 6, 2018, Attorney
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    Clelland filed an omnibus pre-trial motion for relief on behalf
    of his client, seeking recognition of an alibi defense,
    decertification of the case to juvenile court, access to
    [Appellant’s] juvenile record, and a psychological
    evaluation. On April 5, 2018, the [trial court] granted the
    motion in part, permitting Attorney Clelland access to
    [Appellant’s] juvenile record, and allowing Attorney Clelland
    further time for discovery. Subsequently, [on July 3, 2018,]
    Attorney Clelland filed a formal motion to decertify the case
    to juvenile court and [the trial court] ordered a
    psychological evaluation.
    The evaluation revealed a troubled past, including an
    extensive juvenile record dating back to 2012, and
    placement in several juvenile programs as an adjudicated
    delinquent where he twice absconded. The evaluator noted
    that “[i]nformation generated from the subject’s
    psychological testing, clinical interview and records review
    do not support [Appellant’s] amenability to treatment within
    the juvenile justice system” and consequently opined that
    “[Appellant] lacks the necessary insight and motivation for
    juvenile rehabilitation.” On August 28, 2018, a hearing was
    held…on the motion to decertify. On September 24, 2018,
    [the trial court] denied the motion.
    By letters dated July 18, 2018, and October 5, 2018,
    [Appellant] requested that [the trial court] appoint him new
    counsel. On October 10, 2018, Attorney Clelland filed a
    motion to withdraw representation. Attorney Clelland’s
    motion indicated he “continuously had to pull teeth to get
    any sort of response” from his client. ([Motion to Withdraw
    Representation, filed 10/10/18]). Attorney Clelland further
    stated that [Appellant] undermined his representation “and
    in fact flagrantly goes out of his way to make a case even
    more difficult.” (Id.) On October 11, 2018, [the trial court]
    denied the motion to withdraw, noting no further request for
    a change of counsel would be entertained by the court.
    On October 19, 2018, [Appellant] entered into a plea
    agreement, pleading guilty to murder of the third degree,
    possession of an instrument of crime, and possession of a
    firearm by a minor. Sentencing occurred on December 12,
    2018. Prior to sentencing, the Commonwealth informed
    [Appellant] of his right to file a post-sentence motion or an
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    J-S20034-22
    appeal and the time periods in which he would have to do
    so. (N.T. Sentencing at 5-6).
    During the sentencing hearing, [the trial court] addressed a
    letter sent by [Appellant] to the court where he maintained
    his innocence, claiming he was taking the blame for
    someone else. (Id. at 8-9). To the extent that [Appellant]
    was requesting to [w]ithdraw[] his guilty plea, [the trial
    court] denied the request, noting [Appellant] had already
    admitted in open court when he entered his plea that he
    fired the bullets that caused the death of the victim. (Id. at
    9). [The trial court] then proceeded to sentence [Appellant]
    to an aggregate period of 25 to 50 years of incarceration
    plus restitution and costs. (Id. at 32). Neither a post-
    sentence motion nor a notice of appeal was timely filed on
    [Appellant’s] behalf.
    On May 9, 2019, the clerk of courts received a letter dated
    May 6, 2019, asking about the status of an appeal. On June
    12, 2019, the clerk of courts received a similar letter from
    [Appellant] in which he inquired on how to conduct his own
    appeal.
    On December 16, 2019, [Appellant] filed the present PCRA
    petition pro se, claiming: a) violation of the Constitution of
    this Commonwealth or the laws of the United States which
    so undermined the truth determining process that no
    reliable adjudication of guilt or innocence could have taken
    place, b) ineffective assistance of counsel which so
    undermined the truth determining process that no reliable
    adjudication of guilt or innocence could have taken place, c)
    a plea of guilty unlawfully induced where the circumstances
    make it likely that inducement caused him to plead and he
    is innocent, and d) improper obstruction of government
    officials of his right of appeal where a meritorious appealable
    issue existed and was properly preserved in the trial court.
    (See Pro se PCRA Petition, 12/16/19, at 2). On March 5,
    2020, [Appellant], by and through PCRA counsel, filed an
    amended PCRA petition, limited to the ineffective assistance
    of counsel claim.          (See Amended Petition for Post-
    Conviction Relief, 3/5/20).          On April 6, 2020, the
    Commonwealth filed a response.
    On September 18, 2020, an evidentiary hearing was held on
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    the PCRA petition. Both [Appellant] and Attorney Clelland
    testified. At the close of the evidentiary hearing, the [c]ourt
    made initial factual findings and took the matter under
    further advisement. (N.T. PCRA Hearing, 9/18/20, at 37).
    On December 7, 2020, [the PCRA court] issued an Opinion
    and order to dismiss PCRA pursuant to Pa.R.Crim.P. 908,
    denying the relief sought and dismissing the petition.
    [Appellant] did not initially appeal that decision. On March
    23, 2021, [Appellant] penned a letter to the Erie County
    Clerk of Courts claiming that his PCRA counsel informed him
    he “had to write her a letter to give her [permission] to file
    an appeal to the Superior Court” and further alleging that
    he tested positive for COV1D-19 on January 1, 2021, and as
    a result, he was confined to the medical block and could not
    communicate with PCRA counsel to indicate his desire to file
    an appeal before the time to do so had expired. (Letter,
    3/23/21). In the letter, he unequivocally stated that he
    “would like to get [his] appeal rights back so [he] can appeal
    [his] PCRA to the Superior Court.” (Id.) On April 8, 2021,
    the court informed both PCRA counsel and the
    Commonwealth of the letter, putting the parties on notice of
    [Appellant’s] desire to reinstate his appellate rights. On
    June 15, 2021, the Commonwealth indicated to the court
    that it did not object to the reinstatement of [Appellant’s]
    appellate rights nunc pro tunc. By order dated June 22,
    2021, the court treated the March 23, 2021, letter as a
    motion to reinstate appellate rights nunc pro tunc and
    granted the motion, providing that [Appellant], by and
    through counsel, would have 30 days in which to file a notice
    of appeal of the court’s dismissal of the PCRA petition with
    the Superior Court.
    [Appellant timely] filed a [nunc pro tunc] notice of appeal
    on July 16, 2021. That same day, [the PCRA court] ordered
    [Appellant] to file a concise statement of matters
    complained of on appeal pursuant to Pa.R.A.P. 1925(b). On
    August 3, 2021, PCRA counsel filed a statement of intent to
    file an Anders/McClendon[2] brief in lieu of a 1925(b)
    statement, see Pa.R.A.P. 1925(c)(4), and indicating that
    ____________________________________________
    2Anders v. California, 
    386 U.S. 738
    , 
    87 S.Ct. 1396
    , 
    18 L.Ed.2d 493
     (1967),
    and Commonwealth v. McClendon, 
    495 Pa. 467
    , 
    434 A.2d 1185
     (1981).
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    J-S20034-22
    after performing a thorough review of the file and
    transcripts, she found there to be no issues of merit to raise
    on appeal.…
    (PCRA Court Opinion, filed 8/24/21, at 1-6) (some record citations omitted).
    Preliminarily, appellate counsel has filed a petition for leave to withdraw
    as counsel, together with an Anders brief. Before counsel can be permitted
    to withdraw from representing a petitioner under the PCRA, Pennsylvania law
    requires counsel to file a “no-merit” brief or letter.        Commonwealth v.
    Karanicolas, 
    836 A.2d 940
    , 946 (Pa.Super. 2003).
    [C]ounsel must…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.
    Commonwealth v. Wrecks, 
    931 A.2d 717
    , 721 (Pa.Super. 2007). Counsel
    must also send to the petitioner a copy of the “no-merit” letter or brief and
    motion to withdraw and advise petitioner of his right to proceed pro se or with
    privately retained counsel.           
    Id.
          “Substantial compliance with these
    requirements will satisfy the criteria.” Karanicolas, 
    supra at 947
    .
    Instantly, counsel filed with this Court a petition to withdraw and a no-
    merit brief. 3 Counsel’s brief details the nature of her review and explains why
    ____________________________________________
    3 Where PCRA counsel requests to withdraw, the appropriate filing is a “no-
    merit” letter/brief 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). Here, counsel mistakenly designated her no-merit brief as one
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    J-S20034-22
    Appellant’s claims lack merit.        Counsel’s brief also demonstrates that she
    examined the certified record and found no meritorious issues for appeal.
    Counsel notified Appellant of the request to withdraw and advised Appellant
    of his rights. Thus, counsel has substantially complied with the Turner/Finley
    requirements. See Wrecks, 
    supra;
     Karanicolas, 
    supra.
     Accordingly, we
    proceed to an independent evaluation of the record. 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 issue on Appellant’s behalf:
    Whether the PCRA court erred when it denied Appellant’s
    PCRA petition and supplemental PCRA petition?
    (Turner/Finley Brief at 3).4
    Appellant argues there was a breakdown in the attorney-client
    relationship between Appellant and plea counsel.           Appellant asserts plea
    counsel was ineffective for failing to file post-sentence motions on Appellant’s
    behalf. Likewise, Appellant insists plea counsel was ineffective for failing to
    file a direct appeal on his behalf.        Appellant further suggests plea counsel
    ____________________________________________
    pursuant to Anders. Nevertheless, we can accept an Anders brief in lieu of
    a Turner/Finley brief where counsel seeks to withdraw on appeal. See
    Commonwealth v. Fusselman, 
    866 A.2d 1109
    , 1111 n.3 (Pa.Super. 2004),
    appeal denied, 
    584 Pa. 691
    , 
    882 A.2d 477
     (2005).
    4 Appellant has not filed a responsive brief pro se or with newly-retained
    counsel. Nevertheless, on March 9, 2021, Appellant filed a pro se response to
    counsel’s petition to withdraw, agreeing that the court should permit counsel
    to withdraw, and requesting a copy of his client file.
    -7-
    J-S20034-22
    improperly induced him to plead guilty.      Appellant concludes plea counsel
    rendered ineffective assistance, and this Court must grant relief. We disagree.
    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 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).
    “Counsel   is   presumed   to   have   rendered   effective   assistance.”
    Commonwealth v. Hopkins, 
    231 A.3d 855
    , 871 (Pa.Super. 2020), appeal
    denied, ___ Pa. ___, 
    242 A.3d 908
     (2020).
    [T]o establish a claim of ineffective assistance of counsel, a
    defendant must show, by a preponderance of the evidence,
    ineffective assistance of counsel which, in the circumstances
    of the particular case, so undermined the truth-determining
    process that no reliable adjudication of guilt or innocence
    could have taken place. The burden is on the defendant to
    prove all three of the following prongs: (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
    proceedings would have been different.
    Commonwealth v. Sandusky, 
    203 A.3d 1033
    , 1043 (Pa.Super. 2019),
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    appeal denied, 
    654 Pa. 568
    , 
    216 A.3d 1029
     (2019) (internal citations and
    quotation marks omitted).     The failure to satisfy any prong of the test for
    ineffectiveness will cause the claim to fail. Commonwealth v. Chmiel, 
    612 Pa. 333
    , 
    30 A.3d 1111
     (2011).
    Regarding Appellant’s first allegation of ineffectiveness, that counsel
    failed to file post-sentence motions on his behalf, we note that the failure to
    file a post-sentence motion does not automatically give rise to a presumption
    of prejudice. Rather, where counsel fails to file post-sentence motions, the
    traditional three-prong test applies to determine whether counsel was
    ineffective. Commonwealth v. Reaves, 
    592 Pa. 134
    , 
    923 A.2d 1119
     (2007)
    (holding defendant must satisfy traditional three-prong ineffectiveness test
    concerning counsel’s failure to file post-sentence motions).           See also
    Commonwealth v. Liston, 
    602 Pa. 10
    , 16, 
    977 A.2d 1089
    , 1092 (2009)
    (emphasizing that “the failure to file post-sentence motions does not fall within
    the limited ambit of situations where a defendant alleging ineffective
    assistance of counsel need not prove prejudice to obtain relief”). Therefore,
    an appellant bears the burden of establishing that counsel’s failure to file a
    post-sentence    motion   prejudiced    him;   namely,    that   his   “counsel’s
    performance was deficient” and that the “deficient performance prejudiced the
    defense.” Reaves, supra at 147, 923 A.2d at 1127.
    Notably, in general, an appellant who pleads guilty may only challenge
    the jurisdiction of the court, the legality of the sentence, and the validity of
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    the guilty plea on appeal. Commonwealth v. Morrison, 
    173 A.3d 286
    , 290
    (Pa.Super. 2017).        “[W]hen ‘the plea agreement contains a negotiated
    sentence which is accepted and imposed by the sentencing court, there is no
    authority to permit a challenge to the discretionary aspects of that sentence.’”
    
    Id.
     (quoting Commonwealth v. Reichle, 
    589 A.2d 1140
    , 1141 (Pa.Super.
    1991)).
    Instantly, Appellant cannot establish that he was prejudiced by counsel’s
    failure to file a post-sentence motion.5 The court sentenced Appellant to an
    agreed upon aggregate sentence of 25-50 years’ imprisonment following his
    guilty plea. Because the court imposed the negotiated sentence, Appellant
    would not have been permitted to challenge the discretionary aspects of his
    sentence. See Morrison, supra. In addition, prior to sentencing, the court
    considered a pro se letter from Appellant as a request to withdraw his plea,
    and denied that request, stating:
    I’m not going to let you withdraw your plea…for a number
    of reasons. When you stood before me for your plea I asked
    you, and to put it bluntly, I asked if you pulled the trigger
    that injected the lead that went into the [victim’s] body and
    caused his death and under oath to me in this solemn place
    you said yes. That’s the end of it.
    (N.T. Sentencing, 12/12/18, at 9). On this record, Appellant cannot prove
    ____________________________________________
    5 We note that at the PCRA hearing, Attorney Clelland testified that Appellant
    “never asked [him] to file any post-sentence motion.” (N.T. PCRA Hearing,
    9/18/20, at 15). The PCRA court found Attorney Clelland’s testimony credible.
    (See PCRA Court Opinion at 14).
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    J-S20034-22
    that he was prejudiced by counsel’s failure to file a post-sentence motion, and
    he cannot establish ineffective assistance of counsel on this ground.        See
    Reaves, 
    supra;
     Sandusky, supra.
    Regarding Appellant’s claim that counsel was ineffective for failing to file
    a direct appeal on his behalf, we observe that the “[a]ctual or constructive
    denial of the assistance of counsel…falls within a narrow category of
    circumstances in which prejudice is legally presumed.” Commonwealth v.
    Lane, 
    81 A.3d 974
    , 978 (Pa.Super. 2013), appeal denied, 
    625 Pa. 658
    , 
    92 A.3d 811
     (2014). Our Supreme Court has held:
    [W]here there is an unjustified failure to file a requested
    direct appeal, the conduct of counsel falls beneath the range
    of competence demanded of attorneys in criminal cases,
    denies the accused the assistance of counsel guaranteed by
    the Sixth Amendment to the United States Constitution and
    Article I, Section 9 of the Pennsylvania Constitution, as well
    as the right to direct appeal under Article V, Section 9, and
    constitutes prejudice for purposes of Section 9543(a)(2)(ii).
    Therefore, in such circumstances, and where the remaining
    requirements of the PCRA are satisfied, the petitioner is not
    required to establish his innocence or demonstrate the
    merits of the issue or issues which would have been raised
    on appeal.
    Commonwealth v. Lantzy, 
    558 Pa. 214
    , 226-27, 
    736 A.2d 564
    , 572 (1999)
    (internal footnote omitted).    In other words, if counsel neglects to file a
    requested direct appeal, “counsel is per se ineffective as the defendant was
    left with the functional equivalent of no counsel.”         Commonwealth v.
    Markowitz, 
    32 A.3d 706
    , 715 (Pa.Super. 2011), appeal denied, 
    615 Pa. 764
    ,
    
    40 A.3d 1235
     (2012).
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    J-S20034-22
    Even if a defendant does not expressly ask counsel to file a direct appeal,
    counsel still has a duty “to adequately consult with the defendant as to the
    advantages and disadvantages of an appeal where there is reason to think
    that a defendant would want to appeal.” Commonwealth v. Bath, 
    907 A.2d 619
    , 623 (Pa.Super. 2006), appeal denied, 
    591 Pa. 695
    , 
    918 A.2d 741
    (2007) (emphasis added). Where the defendant did not request counsel to
    file a direct appeal but counsel failed to consult with the defendant, counsel is
    not per se ineffective and the court applies the traditional three-prong test “to
    decide whether counsel rendered constitutionally ineffective assistance by
    failing to advise [the] client about his appellate rights.” Markowitz, supra
    at 716.
    Pursuant to [Roe v. Flores-Ortega, 
    528 U.S. 470
    , 
    120 S.Ct. 1029
    , 
    145 L.Ed.2d 985
     (2000) and its Pennsylvania
    expression, Commonwealth v. Touw, 
    781 A.2d 1250
    (Pa.Super. 2001)], counsel has a constitutional duty to
    consult with a defendant about an appeal where counsel has
    reason to believe either “(1) that a rational defendant would
    want to appeal (for example, because there are non-
    frivolous grounds for appeal), or (2) that this particular
    defendant reasonably demonstrated to counsel that he was
    interested in appealing.” Touw[, supra] at 1254 (quoting
    Roe[, supra] at 480, 120 S.Ct. [at 1036]).
    Bath, 
    supra at 623
    .        “Where a petitioner can prove either factor, he
    establishes that his claim has arguable merit.” Markowitz, 
    supra at 716
    .
    Prejudice in this context means a defendant must show a reasonable
    probability that, but for counsel’s failure to consult, the defendant would have
    sought additional review. Touw, 
    supra at 1254
    .
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    J-S20034-22
    Instantly, at the PCRA hearing, Appellant admitted that he never asked
    Attorney Clelland to file an appeal after sentencing. (N.T. PCRA Hearing at
    7).   Instead, Appellant claims he asked counsel to file an appeal prior to
    sentencing, stating: “I asked him the whole time I was in the county. I asked
    him to put a motion in to suppress evidence, direct appeal, which he never
    put no direct appeal in.” (Id.) Appellant explained that when he wrote a
    letter to the clerk of courts asking about the status of his appeal, that was an
    inquiry “to figure out how to get one.” (Id. at 8).
    By contrast, Attorney Clelland testified that Appellant “never asked
    [him] to file an appeal.” (Id. at 15). The PCRA court found Attorney Clelland’s
    testimony credible. (See PCRA Court Opinion at 14). We see no reason to
    disrupt the court’s credibility determination in favor of Attorney Clelland. See
    Dennis, 
    supra.
     Thus, Appellant has failed to establish that counsel was per
    se ineffective for failing to file a requested direct appeal. See Lantzy, 
    supra;
    Markowitz, 
    supra.
    The PCRA court also found that Appellant did not establish Attorney
    Clelland’s ineffectiveness for failing to consult with Appellant about the
    possibility of an appeal. The court credited Attorney Clelland’s testimony that
    he    discussed   post-sentence   and     appellate   procedures   generally   with
    Appellant. Attorney Clelland acknowledged that he did not specifically discuss
    the merits of an appeal with Appellant, but if he had done so, he would have
    advised against an appeal as there were no meritorious issues to appeal. The
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    J-S20034-22
    PCRA court credited plea counsel’s testimony and concluded that Appellant
    failed to establish Attorney Clelland’s ineffectiveness regarding counsel’s duty
    to consult. The record supports the PCRA court’s credibility determination in
    favor of Attorney Clelland, and the court’s analysis. See Dennis, 
    supra.
     See
    also Bath, 
    supra.
    With respect to Appellant’s final claim that Attorney Clelland rendered
    ineffective assistance by inducing him to enter a guilty plea, we observe that
    “[a] criminal defendant has the right to effective counsel during a plea process
    as well as during trial. 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.” Commonwealth v. Patterson, 
    143 A.3d 394
    , 397 (Pa.Super. 2016) (citations and internal quotation marks omitted).
    “The voluntariness of the plea depends on whether counsel’s advice was within
    the range of competence demanded of attorneys in criminal cases.” 
    Id.
    (quoting Commonwealth v. Kersteter, 
    877 A.2d 466
    , 468 (Pa.Super.
    2005)).
    Here, Appellant was facing first degree murder and related charges for
    the shooting of Mr. Wiley.       Appellant confessed to the crime and his
    fingerprints were on the murder weapon.         (See N.T. Sentencing at 10).
    Further, Attorney Clelland explained at the evidentiary hearing:
    …I got a letter from [Appellant] in October asking me to
    arrange a plea bargain. And he had given me permission –
    he had waived confidentiality, so I could speak to his family.
    I went to his family and I said, I am – do not believe I can
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    J-S20034-22
    win this trial. I said, if I lose, he will spend the rest of his
    life in prison. I said, will you speak to him about taking a
    third degree murder. They did. They said they would. And
    in fact, they did. I have a copy of the letter they sent. They
    said, please, listen to [Attorney Clelland]. Please take the
    plea, we want you to get out of jail at some point in your
    life. He thereafter took it and that’s where my mind thought
    was….
    (N.T. PCRA Hearing at 25-26). On this record, there is no arguable merit to
    Appellant’s claim of ineffectiveness for inducing his guilty plea.         See
    Patterson, supra. See also Sandusky, supra.
    Following our independent review of the record, we agree with counsel
    that there are no other non-frivolous issues on appeal. See Turner, 
    supra.
    Accordingly, we affirm and grant counsel’s petition to withdraw.
    Order affirmed. Petition to withdraw granted.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 10/13/2022
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