Com. v. Laughbaum, L. ( 2021 )


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  • 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    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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
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    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
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    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.
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    [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
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    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.
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    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.
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    [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 -
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    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
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    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
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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.”
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    J-S43032-20
    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
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    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 -
    J-S43032-20
    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
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    J-S43032-20
    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
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    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.
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    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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