J-S50037-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

LEROY CALBERT,

Appellant No. 395 EDA 2017

Appeal from the PCRA Order entered January 9, 2017,

in the Court of Common Pleas of Delaware County,

Criminal Division, at No(s): CP-23-CR-0002065-2013.

BEFORE: PANELLA, MOULTON, and RANSOM, JJ.

MEMORANDUM BY RANSOM, J.: FILED OCTOBER 02, 2017

Appellant, Leroy Calbert, appeals pro se from the January 9, 2017 

order denying his petition filed pursuant to the Post Conviction Relief Act 

(PCRA), 42 Pa.C.S. §§ 9541-9546. We vacate and remand with instructions. 

The pertinent facts and procedural history, as gleaned from our review 

of the certified record, are as follows. On November 23, 2013, Appellant 

entered a counseled, negotiated guilty plea to various drug charges at two 

separate criminal dockets, and he was sentenced that same day to an 

aggregate term of ten to twenty years of imprisonment. On December 5, 

2013, Appellant pro se filed a notice of appeal, along with a pro se request 

for leave to withdraw his guilty plea, as well as a motion to withdraw his 

guilty plea. The trial court appointed counsel to represent Appellant but did 

not address the withdrawal motion given Appellant’s filing of an appeal.
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On appeal, Appellant claimed that his plea was unknowing because he 

did not know the sentences at each docket were to be imposed 

consecutively. In an unpublished memorandum filed on November 25, 

2014, we found this claim waived for failure to preserve the challenge to the 

guilty plea “prior to sentencing, at sentencing, or in a timely post-sentence 

motion.” Commonwealth v. Calbert, 113 A.3d 358, *8 (Pa. Super. 2014), 

appeal denied, 117 A.3d 295 (Pa. 2015). Thus, this Court affirmed 

Appellant’s judgment of sentence.1 

On February 3, 2016, Appellant timely and pro se filed a PCRA 

petition. The PCRA court appointed counsel, who was later permitted to 

withdraw, and the court appointed new counsel. Thereafter, Appellant filed 

a motion to proceed pro se. Following a Grazier2 hearing, that PCRA court 

granted Appellant’s request. The Commonwealth filed an answer to 

Appellant’s pro se petition. On October 19, 2016, the PCRA court issued 

Pa.R.Crim.P. 907 notice of intent to dismiss Appellant’s PCRA petition 

____________________________________________

1 Before doing so we noted that, although Appellant was represented by new 

counsel on appeal, the record did not contain any order granting Appellant’s 

original trial counsel leave to withdraw. See Calbert, at *6-7 n.1. In fact, 

we stated that “Appellant does not explain what occurred to his original trial 

counsel following the plea, or why [he] acted in a pro se capacity when he 

filed” his notice of appeal and other motions. Id. In addition, we noted that 

nothing in the record indicated that Appellant’s pro se filings were forwarded 

to trial counsel, who remained counsel of record, pursuant to Pa.R.Crim.P. 

5769(A)(4). 

 

2 Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998). 
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without a hearing. Appellant filed a response. By order entered January 9, 

2017, the PCRA court dismissed Appellant’s petition. This pro se appeal 

followed. Both Appellant and the PCRA court have complied with Pa.R.A.P. 

1925.

Appellant raises the following issues:

1. Did Guilty Plea Counsel Fincourt Shelton[,] and Direct 

Appeal Counsel, James Peters and William Wismer render 

ineffective assistance?

2. Was Guilty Plea Counsel, Fincourt Shelton, ineffective for 

failing to perfect [Appellant’s] appellate rights and Direct Appeal 

Counsel James Peters and William Wismer ineffective for failing 

to raise Guilty Plea Counsel’s ineffectiveness?

3. Was Direct Appeal Counsel, James Peters and William 

Wismer, ineffective and [Appellant] prejudiced by their failure to 

object to and request correction or modification of a doctored 

transcript introduced by the Commonwealth?

4. Was Guilty Plea Counsel ineffective for failing to acquire 

discovery prior to advising [Appellant] to plead guilty?

5. Was [Guilty Plea Counsel] ineffective for advising 

[Appellant] to plead guilty despite the existence of a meritorious 

suppression claim?

6. Does an invalid warrant render the evidence seized 

constitutionally infirm?

7. Was [Appellant’s] arrest made in violation of the Municipal 

Police Jurisdiction Act (MPJA) and did the violation prejudiced 

[sic] [Appellant]?

8. Was [Appellant’s] arrest unlawful?

9. Did Guilty Plea Counsel render ineffective assistance for 

inadequately explaining [Appellant’s] rights, for lack of 

communication, and by advising [Appellant] to waive his presentence investigation?
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10. Was [Guilty Plea Counsel] ineffective for failing to seek 

post-sentence withdraw of guilty plea colloquy [sic] and violation 

of Pennsylvania’s Forfeiture Act?

11. Is [Appellant’s] guilty plea, induced by [Guilty Plea 

Counsel] threatening to withdraw, legally void?

12. Was [the] plea colloquy defective for failing to delve into 

the six questions stated in Rule 590 of Pennsylvania’s Rules of 

Appellate [sic] Procedure?

13. Does the Commonwealth’s violation of Pennsylvania’s 

Forfeiture Act render [Appellant’s] sentence illegal?

14. Did the cumulative impact of all of the errors deprive 

[Appellant] of adequate representation and due process?

Appellant’s Brief at 4-7.

When examining a post-conviction court's grant or denial of relief, we 

are limited to determining whether the court's findings were supported by 

the record and whether the court's order is otherwise free of legal error. 

Commonwealth v. Quaranibal, 763 A.2d 941, 942 (Pa. Super. 2000). We 

will not disturb findings that are supported in the record. Id. The PCRA 

provides no absolute right to a hearing, and the post-conviction court may 

elect to dismiss a petition after thoroughly reviewing the claims presented 

and determining that they are utterly without support in the record. Id.

Moreover, to be eligible for post-conviction relief, a petitioner must 

plead and prove by a preponderance of the evidence that his conviction or 

sentence resulted from one or more of the enumerated errors or defects in 

42 Pa.C.S.A. section 9543(a)(2) and that the issues he raises have not been 

previously litigated. Commonwealth v. Carpenter, 725 A.2d 154, 160 
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(Pa. 1999). An issue has been "previously litigated" if the highest appellate 

court in which the petitioner could have had review as a matter of right has 

ruled on the merits of the issue, or if the issue has been raised and decided 

in a proceeding collaterally attacking the conviction or sentence. 

Carpenter, 725 A.2d at 160; 42 Pa.C.S.A. § 9544(a)(2), (3). If a claim has 

not been previously litigated, the petitioner must then prove that the issue 

was not waived. Carpenter, 725 A.2d at 160. An issue will be deemed 

waived under the PCRA “if the petitioner could have raised it but failed to do 

so before trial, at trial, during unitary review, on appeal, or in a prior state 

post-conviction proceeding.” 42 Pa.C.S.A. § 9544(b).

Because Appellant “could have raised” his issues 6, 7, 8, 11, and 12 

“but failed to do so before trial, at trial, during unitary review, on appeal, or 

in a prior state post-conviction proceeding,” they are deemed waived. 42 

Pa.C.S.A. § 9544(b). See also Commonwealth v. Pfaff, 437 A.2d 1188, 

1191 (Pa. 1981) (explaining that absent any claim of ineffective assistance 

of counsel justifying petitioner’s failure to raise on direct appeal an error in 

the court’s instructions to the jury, the issue was waived).3

____________________________________________

3 These claims are also waived because Appellant failed to raise them in his 

Pa.R.A.P. 1925(b) statement. Commonwealth v. Smith, 146 A.2d 257, 

262 (Pa. Super. 2016).
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In his thirteenth issue, Appellant challenges the legality of his 

sentence. Such a claim is not subject to waiver, provided it is properly 

developed. See Commonwealth v. Bowers, 25 A.3d 349, 352 (Pa. Super. 

2011) (explaining that a challenge to the legality of a sentence may be 

raised as a matter of right and is not subject to waiver). Here, however,

Appellant asserts in only the most cursory fashion that his consent to forfeit 

his car as part of his plea agreement violated Pennsylvania’s forfeiture 

statute. See Appellant’s Brief at 43-44. This claim is undeveloped and,

therefore, waived. See generally, Commonwealth v. Tielsch, 934 A.2d 

81, 93 (Pa. Super. 2007) (holding that undeveloped claims will not be 

considered on appeal).

Because Appellant’s remaining claims challenge the stewardship of 

prior counsel, we apply the following principles. Counsel is presumed to be 

effective, and Appellant has the burden of proving otherwise. 

Commonwealth v. Pond, 846 A.2d 699, 708 (Pa. Super. 2004).

In order for Appellant to prevail on a claim of ineffective 

assistance of counsel, he must show, by a preponderance of the 

evidence, ineffective assistance of counsel which, in the 

circumstances of the particular case, so undermined the truthdetermining process that no reliable adjudication of guilt or 

innocence could have taken place. Commonwealth v. 

Kimball, 555 Pa. 299, 724 A.2d 326, 333 (1999). Appellant 

must demonstrate: (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. Id. The petitioner 

bears the burden of proving all three prongs of the test. 
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Commonwealth v. Meadows, 567 Pa. 344, 787 A.2d 312, 

319-20 (2001).

Commonwealth v. Johnson, 868 A.2d 1278, 1281 (Pa. Super. 2005). In 

assessing a claim of ineffectiveness, when it is clear that an appellant has 

failed to meet the prejudice prong, the court may dispose of the claim on 

that basis alone, without a determination of whether the first two prongs 

have been met. Commonwealth v. Travaglia, 661 A.2d 352, 357 (Pa. 

1995). Further, Counsel cannot be deemed ineffective for failing to pursue a 

meritless claim. Commonwealth v. Loner, 836 A.2d 125, 132 (Pa. Super. 

2003) (en banc), appeal denied, 852 A.2d 311 (Pa. 2004). 

Before an evidentiary hearing will be granted, a PCRA petitioner “must 

set forth an offer to prove at an appropriate hearing sufficient facts upon 

which a reviewing court can conclude that trial counsel may have, in fact, 

been ineffective.” Commonwealth v. Begley, 780 A.2d 605, 635 (Pa. 

2001) (quoting Commonwealth v. Pettus, 424 A.2d 1332, 1335 (Pa. 

1981).

We first address Appellant’s third issue in which he asserts that direct 

appeal counsel were ineffective for failing to object to, and request 

correction or modification of, a “doctored” transcript introduced into the 

certified record by the Commonwealth. According to Appellant, the 

transcript that appeared in the certified record when his appeal was decided 

did not include fourteen pages in which he initially rejected the plea 
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agreement offered by the Commonwealth, his desire to go to trial, and the 

trial court’s offering of a continuance so that he could more fully consider the 

plea offer. See Appellant’s Brief at 20. Appellant also contends that these 

pages would demonstrate guilty plea counsel’s “off the record—coercing 

[him] into forgoing the continuance.” Id. (footnote omitted). Appellant 

avers that “[c]omparison of both of the [] transcripts not only support these 

allegations but the editing out of the first 14 pages by the state will also 

shock the conscience of any fair-minded jurist.” Appellant’s Brief at 20.

Appellant’s claim lacks arguable merit. Initially, we note that 

transcripts generally are prepared at the defendant’s request following the 

filing of an appeal. The Commonwealth is not involved in the process, and, 

although the certified record now includes another copy of the guilty plea 

colloquy that includes his initial rejection of the plea offer, Appellant proffers 

no evidence that the Commonwealth interfered in any way with the 

preparation of any transcript. Moreover, on appeal this Court affirmed his 

judgment of sentence based upon a finding of waiver for failing to file a 

timely motion to withdraw his plea. See Calbert, at 8-10. Thus, the 

absence of the initially omitted pages is of no consequence, and therefore, 

Appellant cannot establish prejudice.

Appellant’s remaining ineffectiveness claims involve Guilty Plea 

Counsel’s effectiveness both before and after the entry of the plea. We first 

address Appellant’s claims involving guilty plea counsel’s failure to file a 
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motion to withdraw his guilty plea and/or to perfect an appeal even though 

Appellant asserts that he asked him to do so. According to Appellant, 

[i]mmediately following the [p]lea, Appellant requested counsel 

to file a [m]otion to [w]ithdraw the plea. However, [c]ounsel 

not only failed to do so but also failed to consult with Appellant 

without formally seeking or being granted leave to withdraw[.] 

Appellant, in a desperate attempt to preserve his appeal rights, 

was left to [pro se] file a[n untimely] [p]ost [s]entence [m]otion 

to [w]ithdraw his [g]uilty [p]leas[.] 

Appellant’s Brief at 8. Moreover, as noted above, on direct appeal we 

questioned plea counsel’s status and further questioned why Appellant’s pro 

se filings were not forwarded to him. See, supra, n.1. 

Neither the PCRA court nor the Commonwealth directly addresses this 

claim.4 Rather, both assert that the guilty plea proceedings establish that 

Guilty Plea Counsel’s representation was effective. As correctly recognized 

by Appellant, however, if counsel is found to have ignored a petitioner’s 

request to file an appeal, or did not consult with him regarding same, the 

petitioner is entitled to the reinstatement of his appeal rights nunc pro tunc 

and no merit analysis of any other issues occurs. See Appellant’s Brief at 

____________________________________________

4 The Commonwealth did reference a letter to Guilty Plea Counsel that 

Appellant had attached to his pro se PCRA petition. This letter was dated 

ten days after entry of the pleas. The Commonwealth therefore argues 

“[t]here is no suggestion that counsel was aware of [Appellant’s] claim 

before the ten-day period to file for a motion to withdraw [the plea] 

expired.” Commonwealth’s Brief at 22. As noted infra, Appellant’s 

assertions have raised a factual issue to be resolved at an evidentiary 

hearing.
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14; see also Commonwealth v. Donaghy, 33 A.3d 12, 15-17 (Pa. Super. 

2011) (reiterating that when a defendant clearly asks for an appeal and 

counsel fails to file one or consult with his client, a presumption of prejudice 

arises regardless of the merits of the underlying claims).

Given these circumstances, we agree with Appellant that he has raised 

a genuine issue of material fact which warrants remanding this case for an 

evidentiary hearing. Although Appellant litigated a counseled appeal in this 

case, the raising of a non-preserved issue resulting in a finding of waiver has 

been determined by our Supreme Court to be the functional equivalent of no 

appeal. See, generally, Commonwealth v. Rosado, 150 A.3d 425 (Pa. 

2016). We therefore vacate the order denying Appellant’s PCRA petition and 

remand for an evidentiary hearing so that plea counsel can answer 

Appellant’s assertions regarding the quality of his representation.5 

Order vacated. Case remanded for further proceedings consistent 

with this memorandum. Jurisdiction relinquished. 

____________________________________________

5 Although within this same issue, Appellant raises a layered claim of 

appellate counsel ineffectiveness, the claim is waived for failure to raise it in 

his Pa.R.A.P. 1925(b) statement. See n.3, supra. In addition, given our 

remand, we need not address Appellant’s fourteenth claim in which he 

alleges cumulative prejudice.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/2/2017