J-S49008-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

DAVON ANTONE MCLAURIN 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 361 WDA 2020

Appeal from the PCRA Order Entered February 4, 2020

In the Court of Common Pleas of Erie County Criminal Division at No(s): 

CP-25-CR-0002052-2017

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

MEMORANDUM BY OLSON, J.: FILED DECEMBER 17, 2020

Appellant, Davon Antone McLaurin, appeals from the order entered on 

February 4, 2020, which denied his petition filed under the Post-Conviction 

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

In Appellant’s direct appeal, we summarized the underlying facts of this 

case:

On April 30, 2017, at 1:43 a.m., Detective Michael Hertel of 

the Erie Police Department was dispatched to the Kwik Fill 

store, located on the 1100 block of East Lake Road, for 

multiple 911 calls reporting shots fired in the area. Detective 

Hertel investigated the incident, studying the scene 

subsequent to the dispatch call and observing the physical 

evidence of gun shell casings, blood, and finger/palm prints. 

Detective Hertel also received a surveillance video from the 

Kwik Fill store. . . . The video depicts a male, later identified 

as Markcail Williams, approach a group of people, including 

[Appellant], and fire a gun multiple times. [Appellant] then

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* Former Justice specially assigned to the Superior Court.
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fires back, “shooting at Markcail Williams, shooting at or 

strik[ing] the Chevy Malibu in the parking lot with three 

occupants, and also striking or shooting Dominique Selby’s 

vehicle, the red GMC Terrain, while she was present inside

the vehicle,” and firing into an occupied home. N.T. 

Preliminary Hearing, 7/3/17, at 27.

On October 3, 2017, [Appellant] entered an open guilty plea 

to [recklessly endangering another person (“REAP”)] (Count 

6), discharge of a firearm into occupied structure (Count 11), 

and person not to possess firearms (Count 13). On November 

20, 2017, [Appellant] was sentenced to 12-24 months’ 

incarceration for Count 6; 42-84 months’ incarceration for 

Count 11, to run concurrently with Count 6; and 60-120

months’ incarceration for Count 13, to run consecutively to 

Count 11 – for an aggregate sentence of 102-204 months’ 

incarceration. 

Commonwealth v. McLaurin, 200 A.3d 533 (Pa. Super. 2018) (unpublished 

memorandum) at 1-3 (footnotes omitted).

We affirmed Appellant’s judgment of sentence on October 3, 2018. Id.

at 1-7.

Appellant filed a timely, pro se PCRA petition on August 19, 2019. 

Within the petition, Appellant claimed that his plea counsel provided him with 

ineffective assistance and that counsel caused him to enter an involuntary and 

unknowing guilty plea. Specifically, Appellant claimed that he pleaded guilty 

because his plea counsel promised him that he would receive a sentence of 

four to eight years in prison. Appellant’s Pro Se PCRA Petition, 8/19/19, at 3. 

However, Appellant claimed, he did not receive the promised sentence of four 

to eight years in prison; instead, the trial court sentenced Appellant to serve 

a term of eight-and-one-half to 17 years in prison. Id. Appellant thus 

requested that the PCRA court permit him to withdraw his plea. Id. at 3-6.
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The PCRA court appointed counsel to represent Appellant during the 

proceedings and counsel filed an amended petition on Appellant’s behalf. 

Within the amended petition, counsel restated the claim that Appellant raised 

in his pro se petition. See Amended PCRA Petition, 9/18/19, at 1-3.

On January 8, 2020, the PCRA court provided Appellant with notice that 

it intended to dismiss his petition in 20 days, without holding a hearing. PCRA 

Court Order, 1/8/20, at 1-5; see also Pa.R.Crim.P. 907(1). The PCRA court 

finally dismissed Appellant’s petition on February 4, 2020 and Appellant filed 

a timely notice of appeal. Appellant raises one claim on appeal:

Whether [Appellant’s] guilty pleas were invalidated given the

ineffective assistance of counsel due to counsel’s conduct that 

induced the entry of guilty pleas and misrepresentations as 

to the sentencing exposure including assertions of a 

guaranteed sentence in exchange for the entry of the guilty 

pleas?

Appellant’s Brief at 2 (some capitalization omitted).

“We review a ruling by the PCRA court to determine whether it is 

supported by the record and is free of legal error. Our standard of review of 

a PCRA court's legal conclusions is de novo.” Commonwealth v. Cousar, 

154 A.3d 287, 296 (Pa. 2017) (citations omitted).

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

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

resulted from “one or more” of the seven, specifically enumerated 

circumstances listed in 42 Pa.C.S.A. § 9543(a)(2). One of these statutorily 

enumerated circumstances is the “[i]neffective assistance of counsel which, in 
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the circumstances of the particular case, so undermined the truth-determining 

process that no reliable adjudication of guilt or innocence could have taken 

place.” 42 Pa.C.S.A. § 9543(a)(2)(ii). 

Counsel is presumed to be effective and “the burden of demonstrating 

ineffectiveness rests on [A]ppellant.” Commonwealth v. Rivera, 10 A.3d 

1276, 1279 (Pa. Super. 2010). To satisfy this burden, Appellant must plead 

and prove by a preponderance of the evidence that:

(1) his underlying claim is of arguable merit; (2) the 

particular course of conduct pursued by counsel did not have 

some reasonable basis designed to effectuate his interests; 

and, (3) but for counsel’s ineffectiveness, there is a 

reasonable probability that the outcome of the challenged 

proceedings would have been different.

Commonwealth v. Fulton, 830 A.2d 567, 572 (Pa. 2003). As this Court has 

explained:

A claim has arguable merit where the factual averments, if 

accurate, could establish cause for relief. See 

Commonwealth v. Jones, 876 A.2d 380, 385 (Pa. 2005) 

(“if a petitioner raises allegations, which, even if accepted as 

true, do not establish the underlying claim . . . , he or she 

will have failed to establish the arguable merit prong related 

to the claim”). Whether the facts rise to the level of arguable 

merit is a legal determination.

The test for deciding whether counsel had a reasonable basis 

for his action or inaction is whether no competent counsel 

would have chosen that action or inaction, or, the alternative, 

not chosen, offered a significantly greater potential chance of 

success. Counsel’s decisions will be considered reasonable if 

they effectuated his client's interests. We do not employ a 

hindsight analysis in comparing trial counsel's actions with 

other efforts he may have taken. 
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Prejudice is established if there is a reasonable probability 

that, but for counsel’s errors, the result of the proceeding 

would have been different. A reasonable probability is a 

probability sufficient to undermine confidence in the 

outcome.

Commonwealth v. Stewart, 84 A.3d 701, 707 (Pa. Super. 2013) (some 

quotations and citations omitted). “A failure to satisfy any prong of the test 

for ineffectiveness will require rejection of the claim.” Id.

“A criminal defendant has the right to effective counsel during a plea 

process as well as during trial.” Commonwealth v. Hickman, 799 A.2d 136, 

141 (Pa. Super. 2002). Yet, where the ineffectiveness of counsel is claimed 

in connection with the entry of a guilty plea, a petitioner may only obtain relief 

where “counsel’s deficient stewardship resulted in a manifest injustice, for 

example, by facilitating [the] entry of an unknowing, involuntary, or 

unintelligent plea.” Commonwealth v. Moser, 921 A.2d 526, 530 n.3 (Pa. 

Super. 2007) (en banc) (citations and quotations omitted). As we have 

explained:

once a defendant has entered a plea of guilty, it is presumed 

that he was aware of what he was doing, and the burden of 

proving involuntariness is upon him. Therefore, where the 

record clearly demonstrates that a guilty plea colloquy was 

conducted, during which it became evident that the 

defendant understood the nature of the charges against him, 

the voluntariness of the plea is established.

Commonwealth v. Stork, 737 A.2d 789, 791 (Pa. Super. 1999) (quotations, 

citations, and corrections omitted), quoting Commonwealth v. Myers, 642 

A.2d 1103, 1105 (Pa. Super. 1994). “To prove prejudice, [an] appellant must 
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prove he would not have [pleaded] guilty and would have achieved a better 

outcome at trial.” Commonwealth v. Fears, 86 A.3d 795, 807 (Pa. 2014) 

(quotations and citations omitted).

Moreover, “[a] defendant is bound by the statements which he makes 

during his plea colloquy.” Commonwealth v. Lewis, 708 A.2d 497, 502 (Pa. 

Super. 1998) (citation omitted). “A defendant may not assert grounds for 

withdrawing the plea that contradict statements made when he pled guilty.” 

Id.

Appellant claims that his plea counsel provided him with ineffective 

assistance because counsel “guaranteed” Appellant that, if Appellant pleaded 

guilty, Appellant would receive a sentence of four to eight years in prison. 

Appellant’s Brief at 4. This claim fails.

Prior to entering his plea, Appellant signed a “statement of 

understanding of rights.” Within this statement, Appellant acknowledged that 

he understood the following: 

 “I desire to plead guilty[] in this matter; [] my plea is made 

voluntarily by me without any pressure or promise not reflected 

on this paper, and [] I fully understand all of my rights in choosing 

to plead guilty[;]”

 “that the maximum sentence for the crime[s] to which I am

pleading guilty . . . is Count 6: [] 2 years, Count 11: [] 7 years, 

Count 13: [] 10 years. TOTAL: [] 19 YEARS;”
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 “that any plea bargain in my case is set forth here and that there 

has been no other bargain and no other promise or threat of any 

kind to induce me to plead guilty[]. The only plea bargain in my 

case is [I] will plead guilty to Counts 6, 11, & 13. In 

exchange, the Commonwealth will nolle pros remaining 

counts, with costs on [Appellant];” and,

 “I understand that the Judge is not bound by the terms of any 

plea bargain unless the judge chooses to accept it. The Judge will 

announce his/her decision at the conclusion of the plea colloquy 

which follows my signing this paper. If the Commonwealth agrees 

to make a sentencing recommendation on my behalf, the Judge 

will not be bound by this recommendation and I understand that 

I will not be permitted to withdraw my guilty[] plea if this should 

occur.”

Appellant’s Statement of Understanding of Rights Prior to Guilty/No Contest 

Plea, 10/3/17, at 1 (emphasis in original).

Further, during the guilty plea hearing, Appellant testified that he 

understood the terms of the plea agreement to be as follows: “[Appellant will] 

plead guilty to Counts 11 and 13 [sic], and in exchange, the Commonwealth 

will withdraw the remaining counts with costs on [Appellant].” N.T. Guilty 

Plea Hearing, 10/3/17, at 8. During the hearing, Appellant also acknowledged 

that he was entering an open plea and that, by pleading guilty, he was 
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exposing himself to a “maximum possible sentence” of 19 years in prison. Id.

at 8-9. Finally, Appellant testified that no one “pressured [him] or forc[ed 

him] or promis[ed him] anything to enter this plea” and that no one “promised 

[him] any type of sentence in [his] case.” Id. at 12 and 13.

On appeal, Appellant essentially claims that he was lying during the 

guilty plea hearing. Specifically, Appellant claims that – contrary to his 

testimony at the guilty plea hearing, where he testified that no one “promised 

[him] any type of sentence in [his] case” – his plea counsel, in fact, promised 

him that, if he pleaded guilty, he would receive a sentence of four to eight 

years in prison. Appellant’s Brief at 4; see also Appellant’s Pro Se PCRA 

Petition, 8/19/19, at 3. However, under our case law, Appellant is bound by 

the statements he made in open court, under oath, at the time he entered his 

guilty plea, and he cannot assert later that he lied while under oath, even if 

he avers that counsel induced the lies. Commonwealth v. Pollard, 832 A.2d 

517, 523 (Pa. Super. 2003). Thus, Appellant’s claim on appeal necessarily 

fails.

Order affirmed. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary
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Date: 12/17/2020