J-S41006-18

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* Former Justice specially assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

ANTHONY R. SKELTON 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 316 EDA 2018

Appeal from the PCRA Order December 26, 2017

In the Court of Common Pleas of Chester County Criminal Division at 

No(s): CP-15-CR-0001508-2015

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

MEMORANDUM BY STEVENS, P.J.E.: FILED AUGUST 28, 2018

Appellant Anthony R. Skelton appeals from the order of the Court of 

Common Pleas of Chester County dismissing his petition pursuant to the Post 

Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. PCRA counsel 

has filed a petition to withdraw and a no-merit brief pursuant to

Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988) and 

Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988). We affirm the 

PCRA court’s order and grant counsel’s petition to withdraw.

On March 11, 2016, Appellant entered an open guilty plea to three 

counts of Possession With Intent to Deliver a Controlled Substance (PWID) 

and one count of Persons Not to Possess Firearms. On November 17, 2016, 

the trial court sentenced Appellant to an aggregate sentence of 103⁄4 to 271⁄2 

years’ incarceration. On November 28, 2016, Appellant filed a timely 

counseled motion for the reconsideration of his sentence. On December 5, 
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2016, Appellant filed a pro se motion for reconsideration. After a hearing, the 

lower court denied Appellant’s petition on December 6, 2016.

Thereafter, on December 15, 2016, Appellant filed a pro se “Motion for 

Ineffectiveness of Counsel,” which the lower court considered to be a PCRA 

petition given that the filing raised claims of ineffectiveness of counsel. On 

December 19, 2016, Appellant filed a pro se Motion to Withdraw Guilty Plea, 

which the lower court subsequently denied as untimely filed on January 5, 

2017. See Pa.R.Crim.P. 720(A)(1) (post-sentence motions must be filed no 

later than ten days after sentencing). 

The lower court recognized that the Appellant’s December 15, 2016 

PCRA petition was premature as Appellant had time remaining to file a direct 

appeal from the judgment of sentence. After the direct appeal period expired, 

the lower court appointed Appellant counsel to represent him on collateral 

review. On May 5, 2017, appointed counsel filed an amended PCRA petition. 

After holding an evidentiary hearing, the PCRA court denied Appellant’s 

petition on December 26, 2017. 

After Appellant filed a timely appeal, PCRA counsel filed a petition to 

withdraw and a Turner/Finley no-merit brief. On May 17, 2018, Appellant 

filed a pro se response, in which he did not challenge PCRA counsel’s request 

to withdraw but alleged that his guilty plea was defective due to trial counsel’s 

ineffectiveness.

As an initial matter, we must evaluate counsel’s petition to withdraw his 

representation:
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Counsel petitioning to withdraw from PCRA representation must 

proceed ... under Turner, supra and Finley, supra and ... must 

review the case zealously. Turner/Finley counsel must then 

submit a “no-merit” letter to the trial court, or brief on appeal to 

this Court, detailing the nature and extent of counsel's diligent 

review of the case, listing the issues which petitioner wants to 

have reviewed, explaining why and how those issues lack merit, 

and requesting permission to withdraw.

Counsel must also send to the petitioner: (1) a copy of the “no 

merit” letter/brief; (2) a copy of counsel's petition to withdraw; 

and (3) a statement advising petitioner of the right to proceed pro 

se or by new counsel.

Where counsel submits a petition and no-merit letter that ... 

satisfy the technical demands of Turner/Finley, the court — trial 

court or this Court — must then conduct its own review of the 

merits of the case. If the court agrees with counsel that the claims 

are without merit, the court will permit counsel to withdraw and 

deny relief.

Commonwealth v. Doty, 48 A.3d 451, 454 (Pa.Super. 2012) (quoting 

Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa.Super. 2007)) (brackets 

omitted).

After reviewing the record and counsel’s petition to withdraw, we find 

that PCRA counsel has complied with the technical requirements of Turner

and Finley, supra. In her no-merit brief, PCRA counsel detailed the nature 

and extent of her review, listed an issue of arguable merit, and explained why 

she believed the claim was frivolous. Moreover, counsel demonstrated that 

her no-merit brief was sent to Appellant and showed that she notified 

Appellant of his right to raise additional points for consideration by proceeding 

pro se or with the assistance of privately retained counsel. Therefore, we 

must proceed with an independent review of this case. Doty, supra.
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PCRA counsel presents the issue of whether Appellant entered a knowing 

and intelligent guilty plea in light of alleged misrepresentations by trial 

counsel. In reviewing the lower court’s decision to deny Appellant’s PCRA 

petition, we examine whether the PCRA court's determination “is supported 

by the record and free of legal error.” Commonwealth v. Mitchell, 636 Pa. 

233, 244, 141 A.3d 1277, 1283–84 (2016) (citations omitted). In order to be 

eligible for PCRA relief, the petitioner must prove by a preponderance of the 

evidence that his conviction or sentence resulted from one or more of the 

enumerated circumstances found in 42 Pa.C.S.A. § 9543(a)(2), which includes 

the ineffective assistance of counsel. 

“It is well-established that counsel is presumed effective, and to rebut 

that presumption, the PCRA petitioner must demonstrate that counsel's 

performance was deficient and that such deficiency prejudiced him.” 

Commonwealth v. Koehler, 614 Pa. 159, 36 A.3d 121, 132 (2012) (citing 

Strickland v. Washington, 466 U.S. 688, 687-91 (1984)). To prevail on an 

ineffectiveness claim, the petitioner has the burden to prove 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.” Commonwealth v. Sneed, 616 

Pa. 1, 17, 45 A.3d 1096, 1106 (2012) (quoting Commonwealth v. Pierce,

567 Pa. 186, 786 A.2d 203, 213 (2001)). “A petitioner establishes prejudice 

when he demonstrates “that there is a reasonable probability that, but for 
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counsel's unprofessional errors, the result of the proceeding would have been 

different.” Commonwealth v. Johnson, 600 Pa. 329, 345–46, 966 A.2d 

523, 532–33 (2009) (quoting Strickland, 466 U.S. at 694). The failure to 

satisfy any one of the three prongs will cause the entire claim to fail. Sneed, 

616 Pa. at 18, 45 A.3d at 1106 (citation omitted).

In the amended petition, Appellant claimed he did not knowingly, 

intelligently, or voluntarily enter his guilty plea due to alleged 

misrepresentations by trial counsel as to the plea agreement offered by the 

Commonwealth. Specifically, Appellant contends that trial counsel told him 

that the Commonwealth had agreed Appellant would receive an aggregate 

sentence of five to ten years’ imprisonment for the three counts of PWID and 

the one count of Persons Not to Possess.

This Court has previously held that:

It is clear that a criminal defendant's right to effective 

counsel extends to the plea process, as well as during trial. 

However, [a]llegations 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, 338–39 (Pa.Super. 2012) (citations 

and quotation marks omitted).

Despite Appellant’s claim that plea counsel misrepresented that 

Appellant would receive a sentence of five to ten years’ imprisonment, 
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Appellant signed a written guilty plea colloquy, which clearly indicated that 

Appellant was entering an “OPEN PLEA OF GUILTY” to three counts of PWID 

and one count of Persons Not to Possess; the written colloquy also states that 

“[t]here is no plea bargain or other agreement relating to the plea to those 

crimes except as stated below.” Guilty Plea Colloquy, at 2. There were no 

remarks or information in the section below to lead Appellant to believe there 

was any plea agreement in place. Appellant signed the colloquy and 

specifically added his initials to indicate, inter alia, that (1) he had read and 

understood the colloquy, (2) that he discussed the colloquy with his attorney 

and had no questions about it, and (3) he had not been made any promises 

in connection with the entry of his plea. 

At the plea hearing, the prosecutor placed the relevant facts on the 

record relevant to each charge. The factual basis for Appellant’s three PWID 

charges was that he sold heroin on three separate occasions to a confidential 

informant; in total, Appellant delivered 347 bags of heroin in all, each 

containing one or more grams. Thereafter, a search warrant executed on 

Appellant’s home revealed that he was in possession of two loaded firearms 

despite the fact that he was not permitted to possess firearms due to his prior 

convictions. 

The prosecution also outlined the sentencing guideline ranges and the 

statutory maximums for each of Appellant’s charges and emphasized that 

Appellant’s extensive criminal record rendered him a repeat felon for the 

purposes of his prior record score.
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When the trial court questioned Appellant about his decision to sign the 

written colloquy, he reaffirmed that he had read the colloquy with the 

assistance of his counsel and had no questions about it. Appellant again 

confirmed that he had not been made any promises in connection with the 

entry of his guilty plea. Notes of Testimony (N.T.), 3/11/16, at 5-6.

After accepting Appellant’s guilty plea, the trial court made the following 

remarks to Appellant:

[The Court:] All right then, [Appellant], we’ll have you back here 

for sentencing after your attorney has submitted his memo for me 

to consider and after there’s a presentence investigation report 

prepared. It essentially gives me a little bit of background as far 

as your prior record and work history and that sort of thing. And 

when I have you back here for sentencing, I will give you the 

opportunity to speak to me and tell me anything you think I should 

consider in deciding what a fair and just sentence will be. 

All right. Any questions?

[Appellant:] No, ma’am.

N.T., 3/11/18, at 7-8 (emphasis added). After this exchange, Appellant did 

not question the trial court’s assertion that it would decide Appellant’s 

sentence or inform the court that the parties had agreed to a negotiated 

sentence.

At sentencing on November 17, 2016, Appellant made the following plea 

to the judge:

Your honor, I would truly – it would truly be a blessing to receive 

the likes of a two-to-four year sentence with some probation, or 

a two-and-a-half to five-year sentence with probation, or even the 

likes of a three-to-six-year sentence running concurrent with my 

parole sentence so I can humbly get on with my life, with my 

lovely beautiful wife and children.
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N.T., 11/17/16, at 23 (emphasis added). In addition, Appellant asked the 

court to sentence him within “the mitigated ranges of sentencing.” N.T.

11/17/16, at 22. 

In addition, at the hearing on Appellant’s motion for reconsideration of 

sentence, Appellant actually admitted that he knew there was no plea 

agreement in place, but still asserted that he was under the impression that 

he would receive a five to ten year sentence:

[The Court:] All right. [Appellant,] I’m going to interrupt you. And 

the reason is in your motion, you said there’s something new that 

I wasn’t aware of that you wanted me to consider, and I think all 

of that was already told to me. So is there something new you 

want to say?

[Appellant:] Yes, that I was under the fact – I was under the 

impression that I was going to get a five to ten year deal.

[The Court:] All right. You pled open. There was no agreement. 

You knew that, right?

[Appellant:] Yeah. Well, since I don’t have too much knowledge 

of the law, when he gave me the agreement, I’m quite sure he 

said a five-to-ten year deal.

N.T., 12/6/18, at 4 (emphasis added).

During that hearing, the trial court asked plea counsel about the alleged 

agreement:

The Court: All right. Counsel, did you tell your client that he was 

going to get five to ten years?

[Counsel:] ... From the defense perspective, the Commonwealth’s 

offer was 17 years. I believe that was the Commonwealth’s offer. 

By way of plea bargaining, they reduced the number of counts. 

One of the gun charges was dismissed and things of that nature, 

and then my client and I discussed an open guilty plea. Prior to 
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him pleading guilty, we went over the statutory maximums, the 

guidelines, the possibility that you could run things consecutive, 

things of this nature. So there was absolutely no indication 

that there was an agreement of five years.

N.T., 12/6/18, at 5 (emphasis added). Based on the aforementioned 

testimony, the PCRA court found Appellant was not credible in claiming that 

he believed the parties had agreed to a five to ten year sentence. We agree 

with the trial court’s finding that it is clear that Appellant understood that no 

sentence had been negotiated and that the trial court had the discretion to 

determine his sentence.

Upon review, we conclude that the record supports the PCRA court’s 

determination that Appellant did not enter an unknowing or involuntary plea 

as there was no merit for Appellant’s claim that he had been misled into 

believing that he would be sentenced to five to ten years’ imprisonment. As 

a result, we affirm the order dismissing Appellant’s petition and grant 

counsel’s petition to withdraw.

Order affirmed. Petition to withdraw granted.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/28/18