Com. v. Beatty, C.

J-S06027-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
CHARLES BEATTY
Appellant No. 463 EDA 2014
Appeal from the PCRA Order September 30, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0009500-2009
BEFORE: BENDER, P.J.E., LAZARUS, J., and FITZGERALD, J.*
MEMORANDUM BY LAZARUS, J.: FILED MARCH 26, 2015
Charles Beatty appeals from the order of the Court of Common Pleas
of Philadelphia County dismissing his petition brought pursuant to the Post
Conviction Relief Act (“PCRA”).1 Upon review, we affirm.
This matter arises from an altercation in which Beatty physically
assaulted and burglarized the victim and her friend. On June 3, 2010,
Beatty appeared before the Honorable Earl E. Trent, Jr., and entered a
negotiated guilty plea to burglary, theft, possession of an instrument of
crime, and simple assault. N.T. Guilty Plea Colloquy, 6/3/10, at 4-8, 10.
____________________________________________
*
Former Justice specially assigned to the Superior Court.
1
42 Pa.C.S. §§ 9541-9546.
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The court sentenced Beatty to an aggregate term of two to four years’
incarceration, to be followed by five years’ probation.
On March 3, 2011, Beatty filed a pro se PCRA petition. Appointed
counsel filed an amended petition, challenging the voluntariness of Beatty’s
guilty plea. The PCRA court dismissed Beatty’s petition on September 30,
2013. Beatty did not appeal.
On December 20, 2014, Beatty filed a second PCRA petition,
challenging the effectiveness of PCRA counsel for failing to file an appeal.
On January 27, 2014, the PCRA court granted the petition and reinstated
Beatty’s right to appeal the denial of his first PCRA petition nunc pro tunc.
This timely appeal followed.
On appeal, Beatty raises the ineffectiveness of his trial counsel.
Specifically, Beatty claims that counsel failed to explain the impact of a
guilty plea on his probation status. We note, however, that Beatty provides
no evidence he is on probation or that his guilty plea resulted in a probation
violation causing his probation to be revoked.
When reviewing an appeal from the denial of PCRA relief, an appellate
court “consider[s] whether the post-conviction court’s findings are supported
by the record and are free from legal error.” Commonwealth v. Riga, 70
A.3d 777, 780 (Pa. 2013). To be eligible for relief under the PCRA, Beatty
must prove by a preponderance of the evidence that his conviction resulted
from “ineffective assistance of counsel which, in the circumstances of the
particular case, so undermined the truth-determining process that no
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reliable adjudication of guilt or innocence could have taken place.” 42
Pa.C.S. § 9543(a)(2)(ii). “Counsel is presumed to be effective and the
burden of demonstrating ineffectiveness rests on appellant.”
Commonwealth v. Ousley, 21 A.3d 1238, 1244 (Pa. Super. 2011). “In
order to succeed on an ineffectiveness of counsel claim, ‘appellant must
establish that the underlying claim is of arguable merit, counsel’s course of
action lacked any reasonable basis for advancing his client’s interests, and
appellant has suffered prejudice as a result.’” Commonwealth v. Prince,
719 A.2d 1086, 1089 (Pa. Super. 1998) (citing Commonwealth v. Griffin,
644 A.2d 1167, 1172 (Pa. 1994)). “If appellant can prove that counsel
misinformed him about the consequences of his plea, the claim would have
arguable merit.” Commonwealth v. Lippert, 85 A.3d 1095, 1101 (Pa.
Super. 2014).
Here, Beatty signed a written colloquy form that specifically stated,
The guilty plea may violate my probation or parole. Therefore,
in addition to my sentence in this case, I can get more time in
jail for a violation of my probation or parole. [ . . .] The
sentence on this guilty plea may not run concurrent to a state
sentence for a parole violation.
Written Guilty Plea Colloquy, 6/3/10. Additionally, at trial, counsel
conducted a thorough oral colloquy confirming that Beatty had reviewed the
form with counsel several times – in prison and at the courthouse
immediately prior to trial – and that counsel had answered all of Beatty’s
questions regarding pleading guilty. A defendant may not obtain post-
conviction relief “by asserting that he lied while under oath.”
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Commonwealth v. Pollard, 832 A.2d 517, 523 (Pa. Super. 2003).
Because Beatty testified under oath that he had reviewed the form, which
outlined the probation implications of his plea, he may not now contradict his
sworn testimony in order to obtain relief.
Furthermore, counsel cannot be deemed ineffective in the case sub
judice because she had no duty to inform Beatty of the collateral
consequences of his plea. Commonwealth v. Barndt, 74 A.3d 185, 195-
96 (Pa. Super. 2013) (“Counsel’s omission to mention a collateral
consequence of a guilty plea does not constitute ineffective assistance of
counsel.” “The prospect of probation revocation as a consequence of a given
plea is a collateral consequence of that plea.”). Accordingly, Beatty’s claim
is meritless and we deny him relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/26/2015
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