J-S86016-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

DEMETRIOUS KING

Appellant No. 105 WDA 2016

Appeal from the PCRA Order December 17, 2015

In the Court of Common Pleas of Allegheny County

Criminal Division at No(s): CP-02-CR-0016756-2012

BEFORE: GANTMAN, P.J., MOULTON, J., and STEVENS, P.J.E.*

MEMORANDUM BY MOULTON, J.: FILED MARCH 10, 2017

Demetrious King appeals from the December 17, 2015 order entered 

in the Allegheny County Court of Common Pleas denying his petition filed 

pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-46. 

King’s counsel has filed with this Court a Turner/Finley1 no-merit letter and 

a motion to withdraw as counsel. We affirm the PCRA court’s order and 

grant counsel’s motion to withdraw.

The trial court summarized the relevant factual and procedural history 

of this matter as follows:

____________________________________________

*

Former Justice specially assigned to the Superior Court.

1 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); 

Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).
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This matter arises out of [King’s] guilty plea on 

December 17, 2013 to charges of flight to avoid 

apprehension[;] fleeing or eluding a police officer[;] 

altered forged or counterfeit documents; four counts of 

recklessly endangering another person; resisting arrest;[2]

and[] various motor vehicle code violations. At the time of 

his plea [King] was represented by Attorney Frank Walker. 

After an appropriate colloquy regarding [King’s] 

understanding of the charges, it was acknowledged that 

there was no plea agreement.[3] The Commonwealth 

presented a summary of the evidence regarding [King’s] 

failure to stop for a traffic violation and an ensuing police 

chase culminating in [King’s] arrest, to which there [were] 

no objections, additions or corrections. [King] also 

acknowledged executing the Guilty Plea and Explanation of 

Rights Form. [King’s] plea was then accepted and a 

presentence report was ordered. In response to the 

indication that a presentence report was being ordered and 

being asked by the Court if he understood what that 

meant, [King] asked, “So that means I can get more time 

than what I'm signing the plea about?” In response to that 

comment Attorney Walker asked to confer with [King] and 

after doing so, [King] indicated that he understood. 

At the sentencing hearing on July 17, 2014 Attorney 

Walker vigorously argued for a sentence structured so that 

[King] would be sentenced to consecutive sentences of 11 

1/2 to 23 months “back to back” so that he “stays in the 

county, he can complete the GED program and gets 

assistance for his substance abuse.[”] However, it was 

noted that this sentence could not be imposed as 

requested as it would be recognized as a state sentence 

and [King] would be transferred from the county jail. In 

addition, it was noted that [King’s] guidelines were so high 

due to his lengthy criminal record that even in the 

____________________________________________

2 18 Pa.C.S. § 5126(a), 75 Pa.C.S. § 3733(a), 75 Pa.C.S. § 7122(1), 

18 Pa.C.S. § 2705, and 18 Pa.C.S. § 5104, respectively.

3 The trial court’s reference to “no plea agreement” means that the 

Commonwealth and King had not agreed upon a sentence or other 

concession in return for King’s guilty plea.
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mitigated range, the sentence was 21 to 42 months. After 

discussion about a possible probation violation, the 

following exchange took place:

The Court: I don’t know the facts of the 

probation hearing. That is a separate issue 

that we will have to deal with at a later date. 

Is there anything you want to say on this case?

[King]: The reason I took the plea was because 

I understood that I was going to get 11-and-ahalf to 23 months.

The Court: I can’t do that, do you understand? 

Do you want to take a minute and talk to him?

Mr. Walker: Sure.

After conferring with [King], Attorney Walker indicated that 

he explained the situation to [King], including the 

background and presentence report and “how parole and 

probation works together and sometimes against each 

other.” Counsel then asked for a sentence at the bottom 

of the mitigated range. [King] then was sentenced to 

concurrent sentences of 21 to 42 months at counts one 

and two and a concurrent sentence of 12 to 24 months at 

count three. He was then sentenced to 10 years of 

aggregate probation on the remaining counts. [King] was 

then given an opportunity to ask a question about the 

sentence at which time he questioned the length of the 

probation. In response, [King] was informed that if he had 

no probation violations after three years probation, he 

could request a reduction at that time. 

[King] filed a pro se PCRA Petition on April 3, 2015 and 

a Amended PCRA petition was filed on September 4, 2015. 

In the Amended Petition[,] claims were raised of 

ineffective assistance of counsel in failing to file post 

sentence motions or an appeal and in inducing [King] to 

enter into his plea by promising him that he would receive 

a county sentence. The Commonwealth filed an answer 

conceding that an evidentiary hearing was necessary to 

address the claims. [On November 5, 2015, King filed a 

Supplemental Amended PCRA petition.]
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At the PCRA hearing, [King] identified a letter he 

received from Attorney Walker dated October 23, 2013 

that was offered into evidence.1 [King] indicated that he 

believed that the letter stated that Mr. Walker could 

negotiate a sentence of a 11 1/2 to 23 months of county 

time and he would be paroled forthwith so that he could go 

home and take care of his father. [King] testified that 

based on the information supplied to him by Mr. Walker, it 

was guaranteed he would get 11 1/2 to 23 months and 

that was the reason that he pleaded guilty. [King] testified 

that at the time of the guilty plea he stated that the reason 

he took the plea was that he was getting 11 1/2 to 23 

months. [King] further testified that when given an 

opportunity to speak to counsel at the sentencing hearing 

he was trying to explain that one of the charges against 

him should have been dismissed and that he had 

paperwork showing that it had been dismissed, 

presumably at the preliminary hearing. [King] indicated 

further that when speaking to counsel that Mr. Walker 

suggested that he should withdraw from the case at the 

sentencing, but [King] did not really know what Mr. Walker 

was going to do. He testified that Mr. Walker never 

explained to him that the 11 1/2 to 23 months was not a 

promise. [King] testified that he did not explain the 

situation to the Court because Mr. Walker told him not to 

say anything and that every time that he tried to talk the 

Court reprimanded him and instructed him to talk with Mr. 

Walker. [King] testified that he would have never taken 

the plea if he knew that he was going to be sent to a state 

prison. 

1 The letter of October 23, 2013 from Attorney 

Walker to [King] states in pertinent part: “As 

you know, your case was postponed until 

December 17, 2013 in order to have a 

representative from the probation office 

present to address your possible detainer issue 

and address your sentence. In is my intent 

to request a county sentence and that the 

judge take no further action on the 

detainer. I will also request that you be 

paroled forthwith.”
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Attorney Walker testified at the PCRA hearing that he 

never guaranteed or promised that [King] would get a 

county sentence. In relation to the letter of October 23, 

2013, he testified that:

“It was my attempt to inform him what my 

intentions were going to be at sentencing, 

because he was asking what is going to 

happen at sentencing. I said it is my intention 

to argue for a county sentence, because he did 

inform me about his father being sick, and I 

said I am going to ask for a county sentence, 

there are no guarantees, the guidelines are 

pretty high.” 

Attorney Walker denied promising that he would receive 11 

1/2 to 23 months indicating that he told [King]:

“Just that his guidelines are pretty high, and 

my assessment of the discovery and my 

interactions with the officers on the case, that 

if he were to go to trial it was my estimation 

that he would probably be found guilty and if 

found guilty, we would no longer be able to be 

talking about a County sentence or mitigate it. 

It would probably be in the middle or higher 

range of the standard sentence.” 

Attorney Walker recalled [King] stating at the sentencing 

hearing that the only reason that he took the plea was 

because he was going to get 11 1/2 to 23 months. When 

instructed to talk to his client, Attorney Walker indicated 

that:

“I went over the same thing I just spoke 

about. I said, listen, I can ask the Court to 

withdraw the plea, we can ask for a new 

court and go to trial. There is a chance he 

would say no since you have already plead 

guilty, but at this point we are at the 

sentencing phase and you have already 

accepted responsibility for your actions. If we 

go to trial, like I told you in the beginning, you 

would probably be found guilty, and it is 
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totally your choice, let me know what you 

want to do.” (Emphasis added)

Attorney Walker indicated that [King] then told him to 

“go ahead” and did not instruct him to request to withdraw 

the guilty plea. Counsel also denied that [King] wanted 

him to withdraw as counsel or that he told [King] that he 

would withdraw as counsel. After consideration of all of 

the evidence an order was entered on December 17, 2015 

dismissing the PCRA petition. [King] filed a timely appeal.

PCRA Ct. Op., 7/13/16, at 1-5 (citations omitted, emphasis in original). 

On February 23, 2016, the PCRA court ordered King to file within 21 

days a concise statement of matters complained of on appeal pursuant to 

Pennsylvania Rule of Appellate Procedure 1925(b). On March 10, 2016, King 

filed a Rule 1925(b) statement. Thereafter, on August 5, 2016, King’s PCRA 

counsel filed a motion to withdraw from representation and a no-merit letter.

Before we may address the merits of King’s appeal, we must 

determine whether his PCRA counsel has satisfied the requirements for 

withdrawal under Turner/Finley. Counsel must

file a “no-merit” letter detailing the nature and extent of 

his review and list[ing] each issue the petitioner wishes to 

have examined, explaining why those issues are meritless. 

The PCRA court, or an appellate court if the no-merit letter 

is filed before it, then must conduct its own independent 

evaluation of the record and agree with counsel that the 

petition is without merit. 

Commonwealth v. Rykard, 55 A.3d 1177, 1184 (Pa.Super. 2012) (internal 

citation omitted). Counsel also must serve copies of the petition to withdraw 

and no-merit letter on the petitioner and advise the petitioner that he or she 
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has the right to proceed pro se or with privately retained counsel. 

Commonwealth v. Widgins, 29 A.3d 816, 818 (Pa.Super. 2011).

In his no-merit letter, PCRA counsel states that he reviewed the 

record. Also in the letter, PCRA counsel identifies the issue that King wishes 

to raise and explains why the issue is meritless. PCRA counsel also mailed a 

copy of the petition and no-merit letter to King and informed King of his 

right to withdraw the appeal, to retain private counsel, or to proceed without 

counsel. We conclude that PCRA counsel has complied with the dictates of 

Turner/Finley.

Because King did not file a pro se brief or a brief by private counsel, 

we will address the merits of the one issue raised by PCRA counsel: 

“Whether trial counsel gave ineffective assistance for inducing [King] into 

pleading guilty by promising [King] that he would receive a county 

sentence?” No-Merit Letter at 4.

Our standard of review from the denial of PCRA relief “is limited to 

examining whether the PCRA court’s determination is supported by the 

evidence of record and whether it is free of legal error.” Commonwealth v. 

Ousley, 21 A.3d 1238, 1242 (Pa.Super. 2011). We will not disturb the 

PCRA court’s factual findings “unless there is no support for [those] findings 

in the certified record.” Commonwealth v. Melendez–Negron, 123 A.3d 

1087, 1090 (Pa.Super. 2015). 
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When analyzing ineffectiveness claims, “[w]e begin . . . with the 

presumption that counsel [was] effective.” Commonwealth v. Spotz, 18 

A.3d 244, 259-60 (Pa. 2011). “[T]he [petitioner] bears the burden of 

proving ineffectiveness.” Commonwealth v. Ligons, 971 A.2d 1125, 1137 

(Pa. 2009). To overcome the presumption of effectiveness, a PCRA 

petitioner must demonstrate that: “(1) the underlying substantive claim has 

arguable merit; (2) counsel whose effectiveness is being challenged did not 

have a reasonable basis for his or her actions or failure to act; and (3) the 

petitioner suffered prejudice as a result of counsel’s deficient performance.” 

Id. “A claim of ineffectiveness will be denied if the petitioner’s evidence fails 

to meet any of these prongs.” Id. 

King argues that prior counsel was ineffective for inducing him to plead 

guilty by promising him that he would receive a sentence in county jail. 

The PCRA court found:

In this case, there is no question that [King] and 

counsel discussed that a request would be made for a 

county sentence or that plea counsel made repeated 

requests that any sentence be structured so that [King] 

could remain in the county jail. In addition, there is no 

question that [King] hoped for a county sentence and that 

his hope for such a sentence may have been an important 

factor in his decision to enter his plea. However, the 

record simply does not support [King’s] contention that he 

was guaranteed or promised that he would receive a 

county sentence or that his plea was involuntary or 

unintelligent. The letter from counsel of October 23, 2013 

clearly does not guarantee or promise a county sentence 

and makes it clear that it was a request that would be 

ma[d]e and argued for. In addition, at the very beginning 
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of the plea proceeding, the record is clear that there was 

“no plea agreement.”

Attorney Walker’s testimony that he did not guarantee 

or promise a county sentence to [King] is credible and 

consistent with his written communication with [King]. 

Likewise, Attorney Walker’s testimony regarding their 

discussion and [King’s] decision to not make a request to 

withdraw his plea at the sentencing hearing, after [King] 

made the statement that he took the plea because he 

“understood” he was going to get a county sentence, is 

also credible. Although [King] may have been faced with a 

difficult choice once it was made known that he would not 

receive a county sentence, it is clear that he was given an 

opportunity to discuss it with counsel and counsel again 

advised him of the risks of going to trial versus continuing 

with the sentencing. Attorney Walker’s testimony that 

[King] told him to “go ahead” with the proceedings as 

opposed to requesting that the plea be withdrawn is 

credible. Contrary to the assertion that [King] was not 

given the opportunity to discuss the proceedings, [King] 

was given the opportunity to discuss with counsel 

proceeding [sic] when it was made clear that he would not 

receive a county sentence. In addition, [King] was given 

the opportunity to direct his question or request about the 

sentencing to the Court and at that time [King] raised only 

a question about the length of his probation. As noted 

above, although [King] may have hoped for a county 

sentence, the evidence supports the finding that he 

entered into a knowing, voluntary and intelligent plea that 

was not induced by a promise or guarantee that he would 

receive a county sentence. There is no evidence to 

support the claim that counsel was ineffective and, 

therefore, the petition was appropriately denied. 

PCRA Ct. Op. at 7 (citations omitted). Because the record supports the 

PCRA court’s credibility determinations, we are bound by them. 

Commonwealth v. Dennis, 17 A.3d 297, 305 (Pa. 2011). Accordingly, 

King’s underlying substantive claim does not have arguable merit, and we 
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need not address the remaining ineffectiveness prongs. We conclude that 

the PCRA court properly denied King’s PCRA petition.

Order affirmed. Petition to withdraw granted.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/10/2017