J-S25025-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

NATHANAL C. CONN

Appellant No. 1599 WDA 2014

Appeal from the PCRA Order entered July 29, 2014

In the Court of Common Pleas of Venango County

Criminal Division at No: CP-61-CR-0000405-2012

BEFORE: BENDER, P.J.E., STABILE, and PLATT,*JJ. 

MEMORANDUM BY STABILE, J.: FILED JULY 28, 2015

Appellant, Nathanal C. Conn, appeals from the July 29, 2014 order of 

the Court of Common Pleas of Venango County denying relief under the Post 

Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-46. Upon review, we 

affirm.

The PCRA court summarized the relevant background as follows:

On February 14, 2013, [Appellant] pled guilty and was 

sentenced on the offense of [c]riminal [a]ttempt to [c]ommit 

[m]urder, in violation of 18 Pa.C.S.A. § 901, underlying offense 

18 Pa.C.S.A. § 2502(a), a [f]elony 1. At the time of the guilty 

plea, [Appellant] was represented by Attorney D. Shawn White. 

[Appellant] was sentenced to imprisonment in a state institution 

of the Department of Corrections for a minimum of twenty (20) 

years and a maximum of forty (40) years. On January 22, 2014, 

[Appellant] filed a [PCRA p]etition asserting claims of ineffective 

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* Retired Senior Judge assigned to the Superior Court.
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assistance of counsel and improper sentence. Upon 

consideration of [Appellant]’s PCRA [p]etition, this court 

appointed Matthew C. Parson, Esquire, to represent [Appellant]. 

Newly appointed counsel submitted an [a]mended PCRA 

[p]etition on April 9, 2014, raising the following issue:

That trial counsel was ineffective for failing to 

describe to the petitioner all the aspects of his plea 

and the results of taking the plea, i.e. counsel 

promised a sentence with a minimum of nine years. 

Following a PCRA [h]earing on July 29, 2014, this court denied 

[Appellant]’s PCRA [p]etition. [Appellant] was granted leave to 

proceed [i]n [f]orma [p]auperis on appeal, and [Appellant] 

submitted his [n]otice of [a]ppeal on August 26, 2014. In 

accordance with Pa.R.A.P. 1925(b), the court instructed 

Appellant on September 29, 2014, to submit a concise statement 

of matters [sic] complained of on appeal no later than twentyone (21) days after the entry of the [o]rder. [Appellant timely 

complied. This appeal followed.]

PCRA Court Opinion, 12/22/14, at 1-2 (unnumbered opinion).

On appeal, Appellant challenges the denial of his PCRA petition.1 

Specifically, Appellant argues the PCRA court erred in not finding plea 

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1 On appeal, Appellant raises the following questions:

1. Whether the PCRA [c]ourt erred as a matter of law or abused 

its discretion in determining that trial counsel was not 

ineffective in failing to describe and ensure his client 

understood his guilty plea.

2. Whether the PCRA [c]ourt erred as a matter of law or abused 

its discretion in determining that trial counsel was not 

ineffective in failing to file an appeal to the trial court’s 

sentence.

Appellant’s Brief at 5. As explained below, the second issue is waived for 

failure to timely and properly raise it before the PCRA court. 
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counsel ineffective for failing to inform Appellant that the plea was open.2 

We disagree. Accordingly, we affirm.

We review claims of ineffective assistance of counsel3 based on the 

following principles:

Our standard of review of the denial of a PCRA 

petition is limited to examining whether the court’s 

determination is supported by the evidence of record 

and free of legal error. This Court grants great 

deference to the findings of the PCRA court if the 

record contains any support for those findings. 

Further, the PCRA court’s credibility determinations 

are binding on this Court, where there is record 

support for those determinations.

Commonwealth v. Anderson, 995 A.2d 1184, 1189 (Pa. 

Super. 2010) (citations omitted).

To prevail on a claim alleging counsel’s 

ineffectiveness under the PCRA, Appellant must 

demonstrate (1) that the underlying claim is of 

arguable merit; (2) that counsel’s course of conduct 

was without a reasonable basis designed to 

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2

“In an open plea agreement, there is an agreement as to the charges to be 

brought, but no agreement at all to restrict the prosecution’s right to seek 

the maximum sentences applicable to those charges.” Commonwealth v. 

White, 787 A.2d 1088, 1089 n.2 (Pa. Super. 2001) (quotation marks and 

citations omitted). “At the other end of the negotiated plea agreement 

continuum, a plea agreement may specify not only the charges to be 

brought, but also the specific penalties to be imposed.” Id. 

3 Despite Appellant’s challenge to plea counsel’s performance, in his brief 

before this Court Appellant cites 42 Pa.C.S.A. § 9543(a)(2)(iii) (relating to 

unlawfully induced guilty pleas), which is not applicable here because he 

raised an ineffective assistance claim, 42 Pa.C.S.A. § 9543(a)(2)(ii). See 

Commonwealth v. Lynch, 820 A.2d 728, 731-32 (Pa. Super. 2003).
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effectuate his client’s interest; and (3) that he was 

prejudiced by counsel’s ineffectiveness, i.e. there is a 

reasonable probability that but for the act or 

omission in question the outcome of the proceedings 

would have been different.

It is clear that a criminal defendant’s right to 

effective counsel extends to the plea process, as well 

as during trial. However, 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. Where the defendant 

enters his 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.

Commonwealth v. Wah, 42 A.3d 335, 338 (Pa. Super. 2012) 

(citations, quotation, and quotation marks omitted). 

“[T]he law does not require that [the defendant] be pleased with 

the outcome of his decision to enter a plea of guilty: All that is 

required is that [his] decision to plead guilty be knowingly, 

voluntarily, and intelligently made.” Anderson, 995 A.2d at 

1192 (citations, quotation, and quotation marks omitted). 

Moreover, with regard to the prejudice prong, where an 

appellant has entered a guilty plea, the appellant must 

demonstrate “it is reasonably probable that, but for counsel’s 

errors, he would not have pleaded guilty and would have gone to 

trial.” Commonwealth v. Rathfon, 899 A.2d 365, 370 (Pa. 

Super. 2006) (quotation and quotation marks omitted).

Commonwealth v. Timchak, 69 A.3d 765, 769-70 (Pa. Super. 2013).

Appellant’s first claim of ineffective assistance of counsel has no merit. 

A review of the transcripts of the guilty plea and PCRA hearings disposes of 

the matter. As noted by the court at the PCRA hearing, at the time of the 

plea, the court repeatedly asked Appellant whether he understood the terms 

of his plea, to which Appellant answered in the affirmative each time he was 
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asked by the court. The terms of the plea included Appellant, inter alia, 

entering a guilty plea to attempted murder, which carried a potential for a 

maximum term of imprisonment of 40 years and a minimum of 20 years, 

N.T. PCRA Hearing, 7/29/14, at 48, and the Commonwealth’s withdrawal of 

the remaining counts, id. at 37. Additionally, the trial court made it clear to 

the parties it was not bound by any sentencing agreement they might have 

had. Id. at 36. The court also asked Appellant whether he had been forced 

or threatened to take the plea or whether he had been promised any 

particular sentence or leniency, to which questions Appellant answered in 

the negative. At the hearing, plea counsel testified that he explained the 

plea in detail and had no doubts that Appellant understood the terms of the 

agreement. Id. at 23. Indeed, the PCRA court found that 

[T]he face of the record shows that [A]ppellant was fully 

apprised of the consequences of a guilty plea. During the PCRA 

hearing . . ., [Appellant] testified that he recalled doing a 

colloquy in front of the [c]ourt. Additionally, [Appellant] recalled 

the [c]ourt asking if there were any promises made to him 

before entering into the plea, to which he replied “no.” After 

listening to every question in the guilty plea colloquy, this court 

asked [Appellant], again, “is it still your intention to enter a 

guilty plea to the charges subject to the terms of the plea 

agreement?” [Appellant] responded with, “yes.” 

PCRA Court Opinion, 12/22/14, at 4 (unnumbered opinion). 

The PCRA court, in essence, did not believe that Appellant did not 

understand the terms of his plea. Instead, upon consideration of Appellant’s 

answers to the colloquy at the guilty plea hearing, and Appellant’s and plea 

counsel’s testimony at the PCRA hearing, the PCRA court found the terms of 
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plea were fully explained to Appellant, and plea counsel was not ineffective 

in connection with the plea. The record supports the PCRA court’s factual 

and credibility determinations. Accordingly, we conclude the PCRA court did 

not err in denying relief on Appellant’s first claim.4 

In his second issue, Appellant argues plea counsel was ineffective for 

failing to file an appeal. As noted by the PCRA court, PCRA Court Opinion, 

12/22/14, at 8 (unnumbered opinion), and acknowledged by Appellant, 

Appellant’s Brief at 12, this issue was not raised in the PCRA petition, and it 

was not addressed—or even mentioned—at the PCRA hearing. The issue, in 

fact, was raised for the first time on appeal, and Appellant provides no 

authority for us to entertain it at this stage. As such, the second claim is 

waived. See Pa.R.A.P. 302(a) (a claim is waived if raised for the first time 

on appeal); Commonwealth v. Weiss, 81 A.3d 767, 795 n.17 (Pa. 2013). 

Order affirmed.

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4 Because we find the claim has no merit, we need not address the 

remaining prongs of the ineffective assistance standard. See, e.g., 

Commonwealth v. Fears, 86 A.3d 795, 804 (Pa. 2014) (“Failure to prove 

any prong of this test will defeat an ineffectiveness claim.”). 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/28/2015