J-S03021-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

MICHAEL BABISH

Appellant No. 1509 EDA 2014

Appeal from the PCRA Order April 9, 2014

In the Court of Common Pleas of Monroe County

Criminal Division at No(s): CP-45-CR-0000574-2011

 CP-45-CR-0001440-2011

BEFORE: FORD ELLIOTT, P.J.E., PANELLA, J., and OTT, J.

MEMORANDUM BY PANELLA, J. FILED APRIL 07, 2015

Appellant, Michael Babish, appeals from the order dismissing his 

petition pursuant to the Post Conviction Relief Act (“PCRA”). In his petition, 

Babish alleged that his appointed counsel rendered ineffective assistance in 

preparation for his guilty plea, rendering the plea unknowing and 

involuntary. After careful review, we affirm.

Babish was arrested after multiple firearms were found in or near his 

vehicle at the scene of an accident. While hospitalized, Babish admitted to 

committing a series of burglaries. The Commonwealth subsequently charged 

Babish with an assortment of crimes associated with five separate 

burglaries.
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On March 7, 2012, Babish pled guilty pursuant to a negotiated plea 

agreement to one count of burglary and two counts of criminal trespass. 

Shortly thereafter, Babish withdrew his guilty plea indicating that he was 

having a conflict with his appointed counsel, the Monroe County Public 

Defender’s Office. Babish’s motion to appoint conflict counsel, filed by the 

public defender, was denied.

On July 5, 2012, Babish appeared for trial in this matter, represented 

by the public defender. After a colloquy, Babish again pled guilty to one 

count of burglary and two counts of criminal trespass. The trial court 

subsequently imposed a sentence of imprisonment of 117 months to 240 

months.

On July 15, 2013, Babish filed a pro se PCRA petition. The PCRA court 

appointed counsel to represent Babish, and an amended petition was filed 

approximately a month later. After a hearing on the petition, the PCRA court 

dismissed Babish’s amended PCRA petition on April 9, 2014. This timely 

appeal followed.

On appeal, Babish argues that the PCRA court erred in concluding that 

the public defender had rendered effective assistance of counsel to Babish in 

preparation for his guilty plea. Our standard of review of a PCRA court’s 

denial of a petition for post-conviction relief is well-settled. We must 

examine whether the record supports the PCRA court’s determination and 

whether the PCRA court’s determination is free of legal error. See 
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Commonwealth v. Hall, 867 A.2d 619, 628 (Pa. Super. 2005). The PCRA 

court’s findings will not be disturbed unless there is no support for the 

findings in the certified record. See Commonwealth v. Carr, 768 A.2d 

1164, 1166 (Pa. Super. 2001). Our scope of review is limited by the 

parameters of the PCRA. See Commonwealth v. Heilman, 867 A.2d 542, 

544 (Pa. Super. 2005).

To be eligible for relief under the PCRA, a petitioner must plead and 

prove by a preponderance of the evidence that his conviction or sentence 

resulted from one of the errors listed in 42 PA.CONS.STAT.ANN. § 

9543(a)(2)(i)-(viii). See Commonwealth v. Albrecht, 720 A.2d 693, 698 

(1998). Section 9543(a)(2) requires, inter alia, 

(2) That the conviction or sentence resulted from one or 

more of the following:

(i) A violation of the Constitution of this Commonwealth 

or the Constitution or laws of the United States 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.

(ii) 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.

(iii) A plea of guilty unlawfully induced where the 

circumstances make it likely that the inducement caused 

the petitioner to plead guilty and the petitioner is 

innocent.

(iv) The improper obstruction by government officials of 

the petitioner's right of appeal where a meritorious 

appealable issue existed and was properly preserved in 

the trial court.
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(v) Deleted.

(vi) The unavailability at the time of trial of exculpatory 

evidence that has subsequently become available and 

would have changed the outcome of the trial if it had 

been introduced.

(vii) The imposition of a sentence greater than the lawful 

maximum.

(viii) A proceeding in a tribunal without jurisdiction.

42 PA.CONS.STAT.ANN. § 9543(a)(2)(i)-(viii).

As noted, Babish argues that the public defender was ineffective in 

advising him to accept the negotiated plea agreement. In addressing 

Babish’s claim of counsel’s ineffectiveness, we turn to the following principles 

of law:

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 ... 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.

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

Moreover, “[w]e presume counsel is effective and place upon Appellant the 

burden of proving otherwise.” Commonwealth v. Springer, 961 A.2d 

1262, 1267-1268 (Pa. Super. 2008) (citation omitted). This Court will grant 

relief only if Appellant satisfies each of the three prongs necessary to prove 

counsel ineffective. See Commonwealth v. Natividad, 938 A.2d 310, 322 
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(Pa. 2007). Thus, we may deny any ineffectiveness claim if “the evidence 

fails to meet a single one of these prongs.” Id., at 321.

A claim of ineffectiveness in the context of a guilty plea may provide 

relief only if the alleged ineffectiveness caused an involuntary or unknowing 

plea. See Commonwealth v. Mendoza, 730 A.2d 503, 505 (Pa. Super. 

1999). “[A] defendant is bound by the statements which he makes during 

his plea colloquy.” Commonwealth v. Barnes, 687 A.2d 1163, 1167 (Pa. 

1997) (citations omitted). As a result, a defendant “may not assert grounds 

for withdrawing the plea that contradict statements made when he pled 

guilty.” Id.; Commonwealth v. Yeomans, 24 A.3d 1044 (Pa. Super. 

2011). “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. Moser, 921 A.2d 526, 531 (Pa. Super. 2007) (citation 

and internal quotation marks omitted).

Babish contends that he wished to challenge the voluntariness of his 

admission and the legality of the search and seizure of the firearms from his 

vehicle. This was the basis of his initial withdrawal of his guilty plea. Thus, 

Babish argues, the public defender’s failure to file such motions prior to the 

guilty plea constituted ineffective assistance of counsel.

However, at the July 5 guilty plea, the trial court specifically addressed 

this issue during the oral colloquy.
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THE COURT: I note Mr. Babish that you had previously 

entered a guilty plea in this matter and you withdrew your plea 

in front of another judge, Judge Williamson, prior to sentencing; 

is that correct?

MR. BABISH: Yes.

THE COURT: And it’s my understanding in speaking with the 

attorneys that part of the problem you had was a 

communication issue or an issue you were having with your 

attorney at that time, Mr. Sayer, from the Public Defender’s 

Office.

MR. BABISH: Correct.

THE COURT: So here we are again today. And the concern 

from the Commonwealth’s perspective, and I think from my 

perspective as well, is that you are now – that issue has been 

resolved and you’re satisfied with the representation that you 

have from Mr. Labar. I want to make sure of that.

MR. BABISH: Yes.

THE COURT: He’s answered every question that you’ve had?

MR. BABISH: Yes, he has.

THE COURT: He has taken the time to talk to you?

MR. BABISH: Yes, he has.

THE COURT: Are you satisfied with his representation of you 

in this matter?

MR. BABISH: Yes, I am.

N.T., Guilty Plea Hearing, 7/5/12, at 8-9. 

Thus, Babish admitted, on the record, that the problem he had with his 

initial guilty plea had been addressed. Furthermore, Babish admitted that 

plea counsel had answered every question and that he was satisfied with 
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counsel’s actions. Accordingly, he cannot now contend that his sworn 

testimony was false on this issue. We therefore agree with the PCRA court 

that Babish cannot establish that a conflict with the public defender’s office 

rendered his guilty plea unknowing and involuntary. 

Order affirmed. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/7/2015