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

v.

LEON CULBREATH

Appellant : : : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 2391 EDA 2019 Appeal from the PCRA Order Entered July 31, 2019 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP

- 51

- CR

- 0008249

- 2014

BEFORE: PANELLA, P.J., NICHOLS, J., and PELLEGRINI, J. * MEMORANDUM BY PELLEGRINI, J.: Filed : July 23, 2020 Leon Culbreath (Culbreath) appeals from the order entered in the Court of Common Pleas of Philadelphia County (PCRA court) dismissing his first timely petition filed pursuant to the Post Conviction Relief Act ( PCRA), 42 Pa.C.S. §§ 9541

- 9546. We affirm.
I. This case arises from Culbreath’s conviction of aggravated assault and conspiracy for his participation in a January 2014 altercation on a SEPTA bus at 1:00 a.m . 1 A disagreement over a seat escalated and led to Culbreath and two other individuals punching a fifty

- six year old disabled veteran who used

_________________ __________ ______ ____ _______

* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S. §§ 2702 and 903.J

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a cane and had mental health issues several times , resulting in fractures to his eye and cheek , a broken nose and a concussion

. The assailants exited the bus after the assault and boarded a second bus where t hey discussed the incident in front of an eyewitness. Both the assault itself and the ir later discussion about it were captured on videotape. On March 11, 2015, Culbreath entered an open guilty plea to the above

stated charges. At the hearing, the trial court conducted the following colloquy: Q. I’m showing you a document entitled, written guilty plea colloquy. Do you recognize it?
A. Yes. Q. Is this your signature at the bottom of the page?
A. Yes. Q . Before signing the document, did you review it carefully, with respect to your trial rights, your appellate rights and your options with your attorney?
A. Yes.

* * * Q. Did you have any trouble understanding this form as you went over it with your attorney? A. No, Your Honor. Q. Are you familiar with the alleged conduct in this case, and what the Commonwealth would have to prove in order that you be found guilty?
A. Yes.J

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Q. Are you satisfied with the services of your attorney so far?
A. Yes. * * * Q. Are you under the influence of any drugs or alcohol?
A. No. Q: Have you ever been diagnosed with a mental condition?
A: Yes. Q: What it that? A: Anxiety, bipolar and depression. Q. Are you taking any medications for any of those conditions?
A. No. Q. Do you have any trouble understanding what’s going on here today?
A. No. Q. Has anybody forced you or coerced you to get you to waive your right to a trial?
A. No. Q. Has anybody made you any promises to get you to waive y our right to a trial?
A. No. Q. Do you have any questions, at this time, for either myself, your attorney or the Commonwealth attorney? A. No, none.J

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(N.T. Guilty Plea, 3/11/15, at 3, 6

- 7). T he trial court found that Culbreath entered a knowing and vol untary plea and it directed him to undergo a mental health evaluation and pre

- sentence investigation (PSI)

. ( See id. at 11). On June 8, 2015, the trial court held a sentencing hearing at which it heard from the defense regarding mitigating factors including Culbreath’s mental health struggles and difficult family background as well as aggravating factors from the Commonwealth such as his lengthy criminal record and capacity for violence. During the proceeding, defense counsel explained : “ S o the presentence report ─ obviously, he was incompetent even at that time─ possibly at the time of this guilty plea. But I spoke to him again today, after he’s been placed o n the medication. He still wishes to proceed this way. He’s still very remorseful.” (N.T. Sentencing, 6/08/15, at 5). The Commonwealth noted Culbreath’s criminal history dating back to 2005 and that his most recent conviction, which occurred after the incident in the instant case, was for simple assault for his assault of a Philadelphia Housing Authority O fficer. ( See id. at 9

- 11). At the conclusion of the hearing , the trial court sentenced Culbreath to an aggregate term of not less than five nor more than fifteen years’ incarceration followed by ten years of probation. Culbreath’s post

- sentence motion seeking to withdraw his guilty plea or in the alternative challenging the discretionary aspects of his sentence was denied by operation of law on Octobe r 19, 2015. This Court affirmed his judgment of sentence on May 17,J

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2017 , and our Supreme Court denied his petition for allowance of appeal on October 24, 2017. Culbreath, acting pro se , filed the instant timely PCRA petition on February 20, 2018 . A ppointed counsel filed an amended petition, advancing claims of ineffective assistance of plea counsel and asserting that Culbreath had not been competent to proceed with his guilty plea or sentencing. The PCRA court held oral argument on May 15, 2019, at which it determined that an evidentiary hearing on the petition was unnecessary. 2 The PCRA court issued notice of its inten t to dismiss the petition on June 20, 2019 , 3 and Culbreath did not file a response. The PCRA court entered its order dismissing th e PCRA petition and explaining its rationale for doing so on July 31, 2019

. Culbreath timely appealed. 4

_________________ __________ ______ ____ _______ 2 “A petitioner is not entitled to a PCRA hearing as a matter of right; the PCRA court can d ecline to hold a hearing if there is no genuine issue concerning any material fact, the petitioner is not entitled to PCRA relief, and no purpose would be served by any further proceedings. ” Commonwealth v. Adams Smith , 209 A.3d 1011, 1019 (Pa. Super. 2019) (citation omitted).

3 See Pa.R.Crim.P. 901(1).

4 The PCRA court did not order Culbreath to file a Rule 1925(b) statement nor did it issue a Rule 1925(a) opinion. See Pa.R.A.P. 1925(a)

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- II. Culbre a th first argues 5 that he was incompetent to proceed to his guilty plea and sentencing hearings because of his mental health issues and fam ily background of abuse. Culbre a th contends that he should be granted new plea and sentencing hearings once he is determined to be competent. Before we may address this issue, we must assess Culbre a th’s eligibility for relief. T o be eligible for relief under the PCRA , a petitioner must plead and prove that his conviction or sentence resulted from one of the circumstances delineated by the PCRA

. See 42 Pa.C.S. § 9543 (outlining eligibility requirements for relief). 6 One of these requirements is that the issue raised

_________________ __________ ______ ____ _______ 5 We review a denial of PCRA relief to determine whether the findings of the PCRA court are supported by the record and free of legal error. See Commonwealth v. Treiber , 121 A.3d 435, 444 (Pa. 2015)

.
6 This section provides in part: (a) General rule.─ To be eligible for relief under this subchapter, the petitioner must plead and prove by a preponderance of the evidence all of the following: * * * (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 Co nstitution or laws of the United States which, in the circumstances of the particular case, so undermined the truth

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was not previously litigated. An issue was previously litigated for purposes of
PCRA review 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[.]

. ” Id.
at § 9544( a ) (2)

. Instantly, we agree with the PCRA court that the issue of Culbre a th’s competency to enter his plea and participate in the proceedings before the trial court was already litigated on direct appeal. ( See Order Sur PCRA Petition, 8/30/19, at 1 n.1). Specifically, o n direct appeal, Culbre a th argued that his incompetency negated the voluntariness of his guilty plea

. He contended that because his mental health issues were not adequately known during his plea colloquy, his case should be remanded to determine his competency at the time he entered the plea . This Court rejected Culbre a th’s argument and found , based on the totality of the circumstances, that his guilty

_________________ __________ ______ ____ _______ (ii) Ineffective assistance of counsel wh ich, 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. * * * (3) That the allegation of error has not been previously litigated or waived. 42 Pa.C.S. § 9543(a)(2)(i)

- ( iii ), (3) (emphases added).J

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plea was knowing, voluntary and intelligent. ( See Commonwealth v. Culbreath , 2017 WL 21983 9 1, at *2). Because Culbreath’s first claim was previously litigated on direct appeal, he is ineligible for PCRA relief on this basis.
III. Culbreath’s remaining claims challenge the effectiveness of plea counsel. See 42 Pa.C.S. § 9543(a)(2)(ii) , supra (listing ineffective assistance of counsel as basis for PCRA relief)

. “The law presumes counsel has rendered effective assistance.” Commonwealth v Postie , 200 A.3d 1015, 102 2 (Pa. Super. 2018) (citation omitted). “In general, to prevail on a claim of ineffective assistance of counsel, a petitioner must show, by a preponderance of the evidence, ineffective assistance of counsel which, in the circumstances of the particular case, so undermined the truth

- determining process that no reliable adjud ication of guilt or innocence could have taken place.” Id. (citation omitted). “The petitioner must demonstrate: (1) the underlying claim has arguable merit; (2) counsel lacked a reasonable strategic basis for his 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. (citation omitted). “The petitioner bears the burden of proving all three prongs of the test.” Id. (citation omitted)

. Additionally,

“ counsel cannot be found ineffective for failing to pursue a baseless orJ

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meritless claim.” Commonwealth v. Adams - Smith , 209 A.3d 1011, 1019 (Pa. Super. 2019) (citation omitted).
A. Culbreath’s initial claim of plea counsel’s ineffectiveness again centers on his alleged incapacity in that he repeats his contention that his mental illness and family history of abuse led him to enter an involuntary plea. Culbreath further argues that counsel took advantage of these circumstances and convinced him that if he entered a plea, the trial court would impose a sentence that was concurrent to the one he was then serving rather than
consecutive thereto. First, we disagree with the underlying premise of Culbreath’s argument that his mental incompetency rendered his plea involuntary. As discussed in detail above, Culbreath has already unsu c ce s s fully litigated the issue of the voluntariness of his plea. Second, we agree with the PCRA court’s finding that Culbreath’s claim counsel took advant age of his circumstances and induced him to plead guilty by representing that he would receive a concurrent rather than consecutive
sentence lack s record support . Specifically , at the guilty plea colloquy, Culbreath unequivocally state d that no one forced or coerced him to enter a plea and that no one made him any promises to induce him to plead guilty. ( See Order Sur PCRA Petition, at 1 n.1 ; N.T. Guilty Plea, at 7 ). A s the PCRA court points out, Culbreath is bound by these statements which he made inJ

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open court while under oath, and he cannot now assert grounds for withdrawing the plea that contradict the m . See Commonwealth v. Willis , 68 A.3d 997, 1009 (Pa. Super. 2013) . Therefore, Culbreath ’s c ontention that counsel indu ced him to plead guilty by misrepresenting the consecutive nature of his sentence fails

. B. Culbreath next claims that plea counsel was ineffective for failing to file a motion to correct or modify his sentence where the trial court, at the guilty plea hearing, gave him misinformation regarding the possible maximum term of his sentence. Specifically, the notes of testimony indicate the court stated in the context of explaining the few issues that are appealable following the

en try of a guilty plea , including the legality of his sentence: “. . . you’re advised that if you plead guilty your maximum is four years’ incarceration[.]” (N.T. Guilty Plea , at 5). Culbreath asserts that because t he maximum sentence he was facing was fo rty years and not four, counsel should have moved to correct or modify his sentence

. The PCRA court addressed this issue by explaining that the “four” instead of forty appearing in the transcript was likely merely a typographical

error. It further determined that this issue is meritless where Culbreath was clearly on notice of the correct maximum possible sentence from the written
g uilty plea colloquy and short form colloquy, both of which he signed. ( See Rule 907 Notice, 6/20/19). Furthermore, th e record reflects that at theJ

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sentencing hearing, the Commonwealth repeatedly stated that it was seeking a sentence of four to ten years of incarceration, which was at the low end of the guidelines. ( See N.T. Sentencing, at 6, 17). The court then imposed its sentence of five to fifteen years ’ incarceration after explaining its rationale , including that Culbreath, at the age of twenty

- five, had thirteen arrests and seven convictions, that the instant crime itself showed a predatory tendency , and that he was a danger to society a s well as the court’s intent to address Culbre a th’s need for mental health and substance abuse treatment. ( See id. at 37). After review, we discern no error in the PCRA court’s conclusion that even assuming that it misspoke at the guilty plea hearing as to the maximum possible sentence, there was no basis for plea counsel to file a motion to correct or modify the sentence where Culbreath was on notice of the term he was facing by way of the written plea colloquy and the actual sent ence imposed was within the sentencing guidelines. Counsel cannot be deemed ineffective for declining to pursue a meritless claim. See Adams - Smith , supra at 1019

. C. Finally, Culbreath contends that plea counsel was ineffective for “forcing” the guilty plea and sentencing proceedings to go forward without requesting that a pre

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Culbre a th’s underlying claim is belied by the record, which shows that the co urt did order preparation of a PSI report as well as a mental health report that showed his diagnoses of bipolar disorder and schizophrenia

. However, after Culbreath received treatment and was placed on medication for his mental health issues, counsel aga in discussed his plea with him and he still wished to go forward with sentencing on the plea as planned. In explaining Culbre a th’s reasoning for going forward, c ounsel emphasized his remorsefulness and acceptance of responsibility for the assault

. Culbre a th’s claim that counsel should have requested further evaluation and f orced him to move forward with the proceedings is meritless

. Order affirmed. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 7/23/20