J-S67037-18

*Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,

 Appellee

 v.

CHARLTON HARRIS,

 Appellant

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

 

 No. 2704 EDA 2017

Appeal from the PCRA Order July 25, 2017

in the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0000859-2010

BEFORE: OTT, J., NICHOLS, J. and STRASSBURGER, J.* 

MEMORANDUM BY STRASSBURGER, J.: FILED JANUARY 17, 2019

Charlton Harris (Appellant) appeals from the July 25, 2017 order 

dismissing his petition filed under the Post Conviction Relief Act (PCRA), 42 

Pa.C.S. §§ 9541-9546, without an evidentiary hearing. We affirm.

We glean the following factual and procedural history from the record. 

On December 18, 2009, Appellant and a co-conspirator entered the victim’s 

home and stole, inter alia, an Xbox 360, a Playstation 3, videogames, a 

television, two laptops, cell phones, designer bags, and jewelry. The victim 

observed the theft from outside the home and called the police. Appellant 

was apprehended shortly thereafter while getting into a cab, from which

several of the above-mentioned items were subsequently recovered. The 

victim identified Appellant as one of the individuals who had stolen items 
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from his home and identified the items in the cab as some of the stolen 

items. 

Based on the foregoing, Appellant was arrested and ultimately charged 

with burglary, criminal trespass, theft by unlawful taking, receiving stolen 

property, and conspiracy to commit burglary. On October 11, 2013, 

Appellant pleaded guilty to all charges. On December 12, 2013, the court 

imposed a term of imprisonment of two to four years, followed by five years 

of probation. Appellant did not file a post-sentence motion or direct appeal. 

On September 25, 2014, Appellant timely filed pro se a PCRA petition. 

Following appointment of counsel on March 10, 2016, Appellant filed an 

amended PCRA petition on January 9, 2017.1 In lieu of an answer, the 

Commonwealth filed a motion to dismiss. The PCRA court issued notice of 

its intent to dismiss Appellant’s petition without a hearing pursuant to 

 

1 The lengthy delays during Appellant’s PCRA proceedings are not explained.

Our Supreme Court has made clear that “[t]he PCRA court [has] the ability 

and responsibility to manage its docket and caseload and thus has an 

essential role in ensuring the timely resolution of PCRA matters.” 

Commonwealth v. Renchenski, 52 A.3d 251, 260 (Pa. 2012) (citing 

Commonwealth v. Porter, 35 A.3d 4, 24–25 (Pa. 2012) (“[T]he court, not 

counsel, controls the scope, timing and pace of the proceedings below.”)). 

Additionally, “post-conviction counsel must ‘act expeditiously so as to reduce 

unnecessary delays and ensure the efficient administration of justice.’” Id.

(citing Commonwealth v. Sneed, 45 A.3d 1096, 1104 n.11 (Pa. 2012)). 

This type of delay is not acceptable.
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Pa.R.Crim.P. 907 on June 22, 2017,2 and dismissed the petition on July 25, 

2017.

Appellant timely filed a notice of appeal.3 On appeal, Appellant sets 

forth one issue for our review: whether the PCRA court erred in dismissing 

his PCRA petition without a hearing. Appellant’s Brief at 3.

On review of orders denying PCRA relief, our standard is to determine 

whether the PCRA court’s ruling is free of legal error and supported by the 

record. Commonwealth v. Orlando, 156 A.3d 1274, 1280 (Pa. Super. 

2017) (citation omitted). Because Appellant claims that the PCRA court 

erred in denying his petition without first holding an evidentiary hearing, we 

also keep the following in mind.

[T]he right to an evidentiary hearing on a post-conviction 

petition is not absolute. It is within the PCRA court’s discretion 

to decline to hold a hearing if the petitioner’s claim is patently 

frivolous and has no support either in the record or other 

evidence. It is the responsibility of the reviewing court on appeal 

to examine each issue raised in the PCRA petition in light of the 

record certified before it in order to determine if the PCRA court 

erred in its determination that there were no genuine issues of 

material fact in controversy and in denying relief without 

conducting an evidentiary hearing. 

Commonwealth v. Walls, 993 A.2d 289, 295 (Pa. Super. 2010) (citations 

omitted). “Thus, to obtain reversal of a PCRA court’s decision to dismiss a 

petition without a hearing, an appellant must show that he raised a genuine 

 

2 Appellant did not file a response to the notice of intent to dismiss.

3 Both Appellant and the PCRA court complied with Pa.R.A.P. 1925.
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issue of fact which, if resolved in his favor, would have entitled him to relief, 

or that the court otherwise abused its discretion in denying a hearing.” 

Commonwealth v. D'Amato, 856 A.2d 806, 820 (Pa. 2004). See also 

Commonwealth v. Paddy, 15 A.3d 431, 467 (Pa. 2011).

In seeking collateral review, Appellant claims that plea counsel was 

ineffective for ignoring Appellant’s request to file a motion to withdraw his

guilty plea prior to sentencing.

4 Amended PCRA Petition, 1/9/2017, at 4-6. 

In its 1925(a) opinion, the PCRA court explained that it dismissed Appellant’s 

PCRA petition without a hearing because Appellant’s “bald assertions” that 

he had requested counsel to withdraw the plea, without any corroborating 

evidence that he had actually made that request, failed to present a genuine 

issue of material fact. PCRA Court Opinion, 5/4/2018, at 3-4. Additionally, 

the PCRA court found Appellant’s claim to be refuted by the record based on, 

 

4

In his PCRA petition, Appellant also claimed, in a single sentence, that his 

guilty plea was coerced. Amended PCRA Petition, 1/9/2017, at 2. Aside 

from a single reference, his brief on appeal is devoid of any argument as to 

this claim. See Appellant’s Brief at 9 (“In his PCRA Petition, [Appellant] 

averred that he had not wished to plead guilty but that his trial counsel 

coerced him into pleading guilty[.]”). Instead, Appellant solely focuses on 

what he terms the “more important[]” claim: that counsel failed to file the 

requested motion to withdraw Appellant’s guilty plea. Id. Accordingly, any 

claim that the PCRA court erred in finding that Appellant’s plea was not 

coerced is waived. See Commonwealth v. Delvalle, 74 A.3d 1081, 1086–

87 (Pa. Super. 2013) (“Rule 2119(a) of the Pennsylvania Rules of Appellate 

Procedure provides that ‘[t]he argument shall ... have ... the particular point 

treated therein, followed by such discussion and citation of authorities as are 

deemed pertinent.’ Pa.R.A.P. 2119(a). Failure by the appellant to discuss 

pertinent facts or cite legal authority will result in waiver. Commonwealth 

v. Rhodes, 54 A.3d 908, 915 (Pa. Super. 2012).”).
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inter alia, Appellant’s failure to “mention his wish to withdraw his plea” at 

the sentencing hearing. Id. at 5.

It is uncontroverted that counsel never filed a motion to withdraw 

Appellant’s plea. However, even assuming that Appellant raised a genuine 

issue of material fact as to whether he asked counsel to file a motion to 

withdraw his plea, Appellant is not automatically entitled to relief on appeal. 

As noted above, in order “to obtain reversal of a PCRA court’s decision to 

dismiss a petition without a hearing, an appellant must show that he raised 

a genuine issue of fact which, if resolved in his favor, would have 

entitled him to relief, or that the court otherwise abused its discretion in 

denying a hearing.” D'Amato, 856 A.2d at 820 (emphasis added). 

In his amended PCRA petition, Appellant essentially argues that 

counsel was per se ineffective because counsel ignored Appellant’s request 

to file a motion to withdraw his plea. Amended PCRA Petition, 1/9/2017, at 

6. We use the following standard to evaluate ineffective assistance of 

counsel claims. 

It is well-established that counsel is presumed to have 

provided effective representation unless the PCRA 

petitioner pleads and proves all of the following: (1) the 

underlying legal claim is of arguable merit; (2) counsel’s 

action or inaction lacked any objectively reasonable basis 

designed to effectuate his client’s interest; and (3) 

prejudice, to the effect that there was a reasonable 

probability of a different outcome if not for counsel’s error. 

The PCRA court may deny an ineffectiveness claim if the 

petitioner’s evidence fails to meet a single one of these prongs. 
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Moreover, a PCRA petitioner bears the burden of demonstrating 

counsel’s ineffectiveness.

Commonwealth v. Franklin, 990 A.2d 795, 797 (Pa. Super. 2010) 

(internal citations omitted).

Assuming arguendo that the basis for Appellant’s pre-sentence motion 

to withdraw his plea was because he “is actually innocent” and “was coerced 

into pleading guilty[,]” as alleged in his PCRA petition, Appellant offered no 

elaboration on these averments and no other argument as to why he was 

entitled to withdrawal of his plea. Amended PCRA Petition, 1/9/2017, at 2. 

[A] bare assertion of innocence is no longer a fair and just 

reason permitting a pre-sentence withdrawal of a guilty plea. 

Instead, “a defendant’s innocence claim must be at least 

plausible to demonstrate, in and of itself, a fair and just reason 

for presentence withdrawal of a plea.” [Commonwealth v. 

Carrasquillo, 115 A.3d 1284, 1292 (Pa. 2015)]. Our High 

Court outlined that the correct inquiry “on consideration of such 

a withdrawal motion is whether the accused has made some 

colorable demonstration, under the circumstances, such that 

permitting withdrawal of the plea would promote fairness and 

justice.” Id.

Commonwealth v. Baez, 169 A.3d 35, 39 (Pa. Super. 2017). Appellant 

has offered no such demonstration. Thus, Appellant was not entitled to an 

evidentiary hearing because even if the PCRA court found that counsel had 

failed to file the motion as requested, the underlying legal claim was without 

merit, and thus Appellant was not entitled to collateral relief. See D'Amato, 

856 A.2d at 820. Accordingly, we find no abuse of discretion in the PCRA 

court’s decision to deny Appellant’s PCRA petition without a hearing.

Order affirmed.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/17/19