### J-S54019-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v. DANIEL ANTHONY KLOSS Appellant No. 1745 WDA 2015

Appeal from the PCRA Order October 13, 2015 In the Court of Common Pleas of McKean County Criminal Division at No(s): CP-42-CR-0000322-2014
BEFORE: BENDER, P.J.E., OTT, J., and MUSMANNO, J. MEMORANDUM BY OTT, J.: FILED SEPTEMBER 19, 2016 Daniel Anthony Kloss appeals from the order entere d October 13, 2015, denying his first petition for collateral rel ief filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541- 9545. Kloss seeks relief from the judgment of sentence of a term of 42 month s to nine years’ imprisonment, imposed following his guilty plea to one count of possession with intent to deliver controlled substances (“PWID ”). See35 P.S. § 780- 113(a)(30). On appeal, he challenges the ineffecti ve assistance of plea counsel. For the reasons below, we affirm. The facts and procedural history underlying this a ppeal are as follows. On January 22, 2014, the McKean County Drug Task Fo rce, working with a confidential informant, set up a controlled purchas e of Dilaudid and morphine tablets from Kloss in exchange for $1,550. 00. See Guilty Plea

### J-S54019-16

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Agreement, 6/27/2014, at 3. Following the exchange , Kloss was arrested and charged with PWID, possession of controlled sub stances, and criminal use of a communication facility. 1 

### Thereafter, on June 27, 2014, Kloss entered a guilty plea to one count of PWID. In exc hange for the plea, the Commonwealth agreed that Kloss’s sentence would be “no more than” a term of 42 months’ to nine years’ imprisonment. Gu ilty Plea Agreement, 6/27/2014, at 1. On September 22, 2014, the trial court imposed a standard range sentence of 42 months’ to 9 years’ i mprisonment, and indicated Kloss was RRRI 2 

### eligible after serving 311⁄2 months’ imprisonment. No direct appeal was filed. Thereafter, on Novembe r 13, 2014, the trial court amended its prior sentencing order to reflectthat Kloss was not RRRI eligible until he served 35 months’ imprisonment. 3

____________________________________________
1 

### See35 P.S. §§ 780-113(a)(30) and (a)(16), and 18 Pa.C .S. § 7512(a), respectively.

2 

### Recidivism Risk Reduction Incentive, 61 Pa.C.S. §§ 4501-4512.

3 

### Although Kloss challenged the belated modification of his sentence in his PCRA petition, he has not repeated that challenge o n appeal. Nevertheless, we note the original sentence contained a clerical error. SeeN.T., 10/12/2015, at 72; 61 Pa.C.S. § 4505(c)(2) (mandat ing that, to be eligible for RRRI, a defendant must serve five-sixths of his minimum sentence when that sentence is greater than three years). Therefore, the court had the authority to correct the sentence outside of the us ual 30-day time limitation. See42 Pa.C.S. § 5505; Commonwealth v. Walters , 814 A.2d 253, 256 (Pa. Super. 2002) (noting trial court has the power to correct “patent and obvious” mistakes after 30-day appeal period), appeal denied , 831 A.2d 599 (Pa. 2003).

### J-S54019-16

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On December 5, 2014, Kloss filed a timely pro se PCRA petition. Although the PCRA court appointed counsel, Kloss la ter retained Robert E. Draudt, Esq., to litigate his PCRA claims. On Sept ember 8, 2015, counsel filed an amended petition, asserting the ineffectiv eness of plea counsel. At the conclusion of an evidentiary hearing on October 12, 2015, the PCRA court denied Kloss’s petition. This timely appeal followed. 4 

### On appeal, Kloss argues the PCRA court erred when it denied his request for relief based upon plea counsel’s ineffe ctiveness. Specifically, Kloss contends plea counsel failed to: (1) file a pretrial motion to suppress both a statement he gave to police and evidence ret rieved during a search of his car; (2) contact potential witnesses; (3) meet with Kloss and adequately prepare for trial; and (4) inform Kloss of his post -sentence rights. Kloss also asserts counsel induced him to enter an unknowing p lea based on counsel’s assurance that he would be sentenced to a term of h ome confinement. See Kloss’s Brief at 6. When reviewing an order dismissing a PCRA petition, we must determine whether the PCRA court’s findings of factare supported by the record, and whether its legal conclusions are free from error.

____________________________________________
4 

### On November 10, 2015, the PCRA court directed Klos s to file a concise statement of errors complained of on appeal pursuan t to Pa.R.A.P. 1925(b). After recieving an extension of time, Kloss complie d with the court’s directive and filed a concise statement on January 6, 2016.

### J-S54019-16

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Commonwealth v. Spotz , 84 A.3d 294, 311 (Pa. 2014). “Great deference is granted to the findings of the PCRA court, and t hese findings will not be disturbed unless they have no support in the certif ied record.” Commonwealth v. Carter , 21 A.3d 680, 682 (Pa. Super. 2011) (citation omitted). Moreover, “[t]he PCRA court’s credibilit y determinations, when supported by the record, are binding on this Court. ” Commonwealth v. Spotz , 18 A.3d 244, 259 (Pa. 2011). Where, as here, the petitioner alleges the ineffect iveness of prior counsel in conjunction with a guilty plea, our revi ew is as follows:

To prevail on a claim alleging counsel’s ineffectiv eness under the PCRA, Appellant must demonstrate (1) thatthe underlying claim is of arguable merit; (2) that cou nsel’s course of conduct was without a reasonable basis de signed to effectuate his client’s interest; and (3) that h e was prejudiced by counsel’s ineffectiveness, i.e. there is a reasonable probability that but for the act or omis sion in question the outcome of the proceedings would have been different. It is clear that a criminal defendant’s right to ef fective counsel extends to the plea process, as well as dur ing trial. However, [a]llegations of ineffectiveness in connec tion with the entry of a guilty plea will serve as a bas is for relief only if the ineffectiveness caused the defendant to enter an involuntary or unknowing plea. Where the defend ant enters his plea on the advice of counsel, the volun tariness of the plea depends on whether counsel’s advice was within the range of competence demanded of attorney s in criminal cases. Commonwealth v. Wah , 42 A.3d 335, 338 (Pa. Super. 2012) (citations, quotation, and quotation marks omitted) . “[T]he law does not require that [the defendant] be pleased wi th the outcome of his decision to enter a plea of guilty: All that is required is that [his] decision to plead guilty be knowingly,

### J-S54019-16

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voluntarily, and intelligently made.” [ Commonwealth v. ] Anderson , 995 A.2d [1184,] 1192 [Pa. Super. 2010] (citation s, quotation, and quotation marks omitted). Commonwealth v. Willis , 68 A.3d 997, 1001-1002 (Pa. Super. 2013). When considering the voluntariness of a defendant’s guilty plea, [t]he longstanding rule of Pennsylvania law is thata defendant may not challenge his guilty plea by asserting that[she] lied while under oath, even if [she] avers that counsel induced the lies. A person who elects to plead guilty is bound by the statements [she] makes in open court while under oa th and [she] may not later assert grounds for withdrawing the plea which contradict the statements [she] made at [her] plea colloquy. Commonwealth v. Pollard , 832 A.2d 517, 523 (Pa. Super. 2003). See also Commonwealth v. Yeomans , 24 A.3d 1044, 1047 (Pa. Super. 2011). Upon our review of the certified record, the PCRA hearing transcript, the parties’ briefs, and the applicable case law, w e find the PCRA court thoroughly addressed and properly disposed of Kloss ’s claims on appeal in its opinion. SeePCRA Court Opinion, 2/8/2016, at 2-9 (finding (1) plea counsel credibly explained that she did not file a pretrial suppression motion because Kloss signed both a Miranda 5 

### waiver and a consent to search his vehicle, and Kloss’s claim that the forms were sign ed after the police questioned him and searched his car “just doesn’t m ake sense[;]” (2) Kloss failed to demonstrate how the absent witnesses’ tes timony would have been beneficial to his defense; (3) counsel had a suffic ient number of contacts

____________________________________________
5 

### Miranda v. Arizona , 384 U.S. 436 (1966).

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with Kloss, based on counsel’s credible testimony “ that she had met several times with [Kloss] in person and had exchanged emai ls, letters and telephone calls with [him];” (4) Kloss’s written an d oral plea colloquies demonstrated his plea was knowingly and voluntarily entered; and (5) the court informed Kloss of his post-sentence rights du ring the sentencing hearing). Accordingly, we adopt the PCRA court’s o pinion as dispositive. Because Kloss has failed to demonstrate that plea counsel was ineffective, or that he is otherwise entitled to po st-conviction relief, we affirm the order of the PCRA court. 6


### Order affirmed. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

DATE: 9/19/2016

____________________________________________ 6 

### We note the certified record does not include the transcripts from either Kloss’s guilty plea hearing or his sentencing heari ng. Moreover, upon our inquiry regarding the missing testimony, we were in formed by the trial court that PCRA counsel ordered only the transcription of the PCRA hearing testimony. Therefore, to the extent any of Kloss’s claims are dependent upon the other transcripts, they are waived. It is well-established that it is the appellant’s obligation to “identify and order” those transcripts necessary to prosecute his appeal. Commonwealth v. Lesko , 15 A.3d 345, 410 (Pa. 2011).

### --:--- · ·\ ((

_ ' ) due t o ine ffe ctiv e n ess
. re que s t fo r PCRA relief and P e titioner w as uncon stituti o nally depri ve d o f his right to coun s el his post-senten ce rights by his attorney; and , 6 ) th e court e rre d when i t denied Petitioner ' s unlawfully induced and not v o lunt arily and under s tan d ably mad e ; 5) Petitioner was neve r told o f potential w i tn ess es ; 3) Trial coun se l failed to me e t with th e Petiti on er; 4) Petition e r's plea was the P e ti tion e r fail e d to fil e a M o tion to S upp res s Evidenc e; 2 ) T rial c oun se l failed to contact / Th e Pe tition er rai se s th e following iss ue s in h is 192 5 (a) Statem e nt : 1) Trial coun s el for pursuant to Pa. R.A.P

. 1925(a). pursu ant to Pa. R.A.P. 1 9 25(b) on January 11 , 2016 after an exte nsi o n. This opinion is writt e n Noti ce was followed by the filin g o f a conci s e st atem e nt o f matters compl ain e d of on appeal Pe tition e r ' s PCRA. Th e Def e nd ant filed h is N otice of App e al on N o vember 2 , 2015, and said appe al s fr o m th e Court' s Ord er d ate d O c t o ber 1 2, 2015 in which th e Court dismis se d the timely Petition for Post- C oll ateral Relief ("PCRA") o n December 5 , 2014. The Petitioner Cosmetic Act. The App e llant did not se ek a dire c t appeal of this sentence. Petitioner filed a not more than nin e year s at Count 1 for Viol ation of the C o ntrolled Sub s t ance, Drug D e vic e, and C) Th e D ef end ant- Pe titioner was se nt e nced on S epte mbe r 2 2, 2 014 for forty-two months 

### oo>

RULE 1925(a) STATEMENT D at ed : February 

# g: , 2016 322 CR2014



### Defendant

. CIUMINAL DIVISION DANIEL A. KLOSS, McKEAN COUNTY, PENNSYLVANIA



### vs. IN THE COURT OF COMMON PLEAS OF COMMONWEAL TH OF PENNSYLVANIA Circulated 08/26/2016 02:01 PM2 Q -- with regards to the Miranda Warnings - A Uh-huh (affirmative). Q And you said that you had discussed with him suppression -- Lehman then spoke about what she talked to the Petitioner about regarding suppression: PCRA Hearing, October , 12 2015, Page 11, Line 22 through Page 12, Line 10. Attorney A Well, he has a Miranda waiver in his file, in his discovery and there was a consent to search his vehicle. After discussing him what happened on that day, it didn't seem to me that there was any discrepancies, either in the paperwork or in what had happened, given the facts of the case. 

### If I thought that anything was illegally searched, or even had the hint of an illegal search, I -- I would have done that. At that point, after reviewing everything, I didn't think it was feasible. It'd be more money for him, obviously, more time. But I wouldn't think, in any event, that it would be -- and we discussed it. We talked about it. His strategy, at that point, was to try to get a IPP, given his medical condition. Q And why did you not do so? A Yes. Q And going forward with 

### Mr. Kloss, did you consider filing an omnibus pretrial motion in this case? attorney, Qiana Lehman, testified: Melson, 556 A.2d 836, 839 (Pa. Super. 1989). At the PCRA hearing, the Petitioner's former reasonable probability the verdict would have been more favo r able.';"; 

### Citing Commonwealth v. pursuing the suppression claim and that if the evidence had been suppressed, there is a suppression of evidence, 'the defendant must establish that there was no reasonable basis fo r not states, "[ w]here the ineffectiveness claim is based on the failure of counsel to move for matter. In Commonwealth v. Arch, 654 A.2d 1141, 1143 (Pa. Super. 1995), the Superior Court Petitioner alleges that his trial counsel failed to file a Motion to Suppress Evidence in this 1) Trial counsel for the Petitioner failed to file a Motion to Suppress Evidence Discussion:

### 3 A He had told me that he contacted a DEA agent on Cleveland, and I was never given a
name so I can't remember who I called, because it was a long time ago. And I checked my -- my notes to see if I had a note who I called, and I couldn't recall who I called. 

### Q Okay. And relating to a couple things that were raised by the Petitioner. Did you examine any claims about him contacting the DEA? doctor's office was being raided in Cleveland, Ohio. Attorney Lehman testified: 1134 (Pa. 2008). The Petitioner has only shown that he had spoken to two DEA agents when his been beneficial under the circumstances of the case." Commonwealth v. Gibson, 951 A.2d 1110, 2009). "Moreover, Appellant must show how the uncalled witnesses' testimony would have because of the absence of the testimony. Commonwealth v. Johnson, 966 A.2d 523, 536 (Pa. appellant must establish that the failure to call the witness denied the appellant a fair trial In order to establish that counsel was ineffective for failing to call a particular witness, an 

### 2) Trial counsel failed to contact potential witnesses a written consent as to a Miranda waiver. former counsel did not believe that a suppression motion was warranted as the Petitioner signed PCRA Hearing, October, 12 2015, Page 18, Line 22 through Page 19, Line 18. The Petitioner's A Yes, it was a written consent. And I made sure that they were completed. I discussed them with Mr. Kloss. He did not ask for an attorney during that time period, as far as he told me. And I said any statements that you made, you know, the evidence was there, besides the statement so we really were -- were looking at the fruit of an illegal search type of suppression. And I could not find a basis to file one. 

### If I could have even smelled one I would have tried. 

### Q Was that a written consent? A I don't. I recall that the discovery included the Miranda waiver. 

### It also -- and -- and it also had a consent to search the car. 

### Q -- with his -- in regards to his statement and also him giving permission for a search of his vehicle? Okay. And let's -- so let's look at the Miranda Warnings. Do you recall when those were given? A Uh-huh (affirmative).4



### Q Okay. And so in -- at court that would have been once for the plea and once for the sentencing? A In person, yes. Just those times. Q I see. All right. So it could have been once, but probably twice in your office, you believe. And then you said -- and then maybe twice here at court? A No. I do have a reading of a bunch of different times that we spoke on the phone and things like that, but it's not a complete list, it was done for billing purposes. Q Do you have your schedule book with you? Can you check this? A I would think -- I'm pretty sure it was twice. But could it have been? Is there a possibility? Absolutely there's a possibility. But I believe it was more -- it was two. 

### Q Could it have been once in your office? A Uh-huh (affirmative). Q The times in your office -- when you say twice here in court, well, let's -- let me rephrase, Your Honor. You say maybe twice in your office? A rd say maybe fou r times. Maybe twice in my office and twice here in court. 

### Q Yes. A Physically in person? Q Ms. Lehman, how many times did you meet with the Defendant, actually meet him? Lehman testified about how many times she met with the Petitioner: Petitioner alleges that Attorney Lehman failed to meet with the Petitioner. Attorney 3) Trial counsel failed to meet with the Petitioner agents' testimony would have been beneficial under the circumstances of the case. establish that the failure to contact or call witnesses denied him a fair trial and that the DEA PCRA Hearing , October, 12 2015, Page 11, Line 3 through Line 12. The Petitioner did not

But I did make a call and asked if they were working with anyone named Daniel Kloss, and they didn't know who it was.5

times. counsel and the court found that Attorney Lehman met with the Petitioner a sufficient number of Lehman did perform is important when the court evaluates any claim of ineffective assistance of exchanged emails, letters, and telephone calls with the Petitioner. Looking at what Attorney Attorney Lehman credible that she had met several times with the Petitioner 

### in person and had trial strategy." Johnson, 51 at 244. Similar to Johnson, the court found the testimony of PCRA Court noted, Attorney Gallagher's contact with Appellant allowed him to present a cogent evaluating the substantive impact of the consultations Attorney Gallagher did perform. As the ineffectiveness. We further decline to read 

### Brooks so rigidly that we are precluded from Appellant that the length and frequency of the consultations alone can support a finding of "[wjhile we acknowledge that more contact may have been advisable, we disagree with v. Johnson, 51 A.3d 237, 244 (Pa. Super. 2012), the Pennsylvania Super Court reasoned, PCRA Hearing, October, 12 2015, Page 17, Line 7 through Page 18, Line 18. 

### In Commonwealth A So we did the -- 90 to 95 percent of our communication through email, letters and telephone calls. 

### Q Okay. A He's from -- yeah, he's from Camp Hill and my office is in Wilkes-Barre. 

### Q Out on bail? Okay. And you stated that you guys lived far apart and - A He was out. 

### Q Now was Mr. Kloss in jail or was he out on bail at the -- during this period of time? A Yes, sir.6

record. The Defendant knowingly and voluntarily entered into the plea agreement. presented with the written guilty plea, the court then gave a colloquy with the Defendant on the PCRA Hearing, October 12, 2015, Page 14, Line 9 through Page 15, Line 4. After the court was A Yeah. As you could see, he filled out all of them himself. And he answered yes to each one. I went over all of them with him. I asked him he had any questions. He didn't, He did ask me -- I know prior to the guilty plea we did discuss when -- if you could withdraw his plea and what would happen ifhe plea -- regard-- these are my specific remembrances. What -- could he withdraw his plea and what would happen ifhe pled regarding his appeal rights. So I made certain to tell him that once you plea, your appeal rights are much -- much more constrained than they are if you have a trial. And that they're basically --does the judge have jurisdiction and was the sentence illegal. So we discussed that before the plea. And then we went over the rest of these items and the paper was given to the judge and went over with in front of the judge at the time of the plea. 

### Q And you went through all of these numbered statements with him? A Just prior to his guilty plea. 

### Q And when did you go through this document with Mr. Kloss? Plea Colloquy: the Petitioner answered in the affirmative. Attorney Lehman testified about the Written Guilty Specifically, question #32 states, "Are you entering the plea of guilty of your own free will?" and Plea Colloquy and at the bottom of each page of the colloquy, the Petitioner initialed it "D.A.K." understandably made. Commonwealth's Exhibit Bis a copy of the Petitioner's Written Guilty Petitioner alleges that his plea was unlawfully induced and not voluntarily and 4) Petitioner's plea 

### was unlawfully induced and not voluntarily and understandably made

### 7

(I) A violation of th e C on s tituti o n of th i s Comm o nw ealth o r the C onsti tution o r l aws of th e United Stat es which, in the c ircum s tan ce s o f the p articul ar ca se , so undermined th e truthd e termining pro ce s s th at no r e li able adjudi cation of g u i lt or innocence could have t aken place; e v iden ce his c onviction or senten c e aro s e from o ne or mor e o f the following: eligible for post c o n v iction reli e f, a defend ant mu st p lead and prove by a preponderance of the crime in Penn sy l vania to obt ain collate ral re li e f in state c ourts

. 42 P a. C.S

. A. § 9542

. To be T he Po s t Convicti on R e l i ef Act provid e s th e only mean s for a person convicte d o f a 6) The court erred in denying Petition er's re qu e st for PCRA relief that he under s tood his po s t-s e nte n ce rights on the re c ord. S e nten ci ng re iterate d to the D e fend ant h i s post-sentence rights

. Th e Defendant a cknowledged PCRA Hearing, O c tob e r 12, 2 015 , Page 16 , L i ne 10 thro u g h Line 2 5

. The court at A He h as a right to app eal in 3 0 day s, right to re con s ideration in ten

. 

### Q -- wa s that al so
- - ok ay
. A Thirty d ay s. 

### Q A nd I'm sorry , I ju s t w an t to reiterate, what did you tell him with his righ t to appeal hi s sent e n c e
- - A After se nte n c ing I expl ained his p os t-s e ntenc e right s to him right h er e, outside this courtr o om, in th at littl e area wher e the stairw e ll is, there' s like a littl e landing at th e top. Sh e riffs took him i n ther e with me and we talke d ab o ut, y o u know, his ten days for righ t of re con s ideration , 30 day s for app eal. And he w a s c oncerned about his - ge ttin g his b o ok. He h a d a l eather bound book in his car to somebody getting hi s car , it wa s a rental car that h e h a d , returning that , s o we discu s sed those things as
w e ll. rights : ri ght s
. At th e PCRA he arin g, Attorney L ehman t es tified abou t the P e titioner 's post

- sentence The Petitione r alleg es that Attorney L e hm an nev e r told him about this post-sente nce 5) Petitioner w a s never told of his post-sentence rights by his attorney

### 8 T HE C OU RT : Ok ay. Well , th e C ourt h a s h e ar d the t e s ti mo ny an d of c o ur se s ee n th e ex hib i t s , s e e n th e - h eard the t estim o ny of th e D efe nd ant. And th e te sti mony o f th e D efe n dant r eall y is i n c on tra diction to wh at th e written e xhibits show

. F irst of all , h e had
a w ritt e n guil ty p l e a co ll o qu y , h e w ro te, aft er e a c h s en te nc e, y e s, and initialed th e p ag es. And yet he' s tryin g t o te ll u s th at he d i dn' t und e rstan d what wa s go in g o n , h e didn't
u nd e r s t and hi s p os t- se nten ce ri g ht s. Well , th ey 'r e all in here
. And so h e c an't v ery w ell say th at h e d id n' t u nders t and th e m
. Also , th e C ourt alway s gi ve s th e c o lloqu y, which I did at th at s e ntencing an d ex plaine d his po s t- se nten ce rights to h im , as I've al ways d o n e, j u s t as I did th i s m orn in g on s o me se nt e n ces. re cord : Paragraph s 1 throu g h 5

. Th e c ourt st ate d it s re aso n s fo r deny in g th e P e ti tio ner' s P C RA on the or s e nte nce ar ose fr o m any of the abo ve s e ction s of 4 2 P a.C .S

. A

. 

### § 9 54 3 ( a )( 2) a s ex p lain ed i n T h e P e titioner di d n o t pr ove b y a p re pon de ranc e o f the evi de nce that e ithe r his co nvi c ti o n s upp o rt i n th e ce rtifie d re co rd

. C ommo nw ealth v
. Wil s on, 8 24 A. 2d 331 , 333 (P a. Su pe r. 2 003). the fi ndi ng s of th e P C RA c ou rt , an d th e se fin din gs w ill not b e d i s turbed unl ess the y h ave n o C ommon w e al th v
. T ho mas, 4 4 A.3 d 1 2, 1 6 ( Pa

. 2 012 ). Mo reo ver , g r eat d e f er e nc e i s granted to to liti gate the issu e w as not th e r es ult o f an y rational , s tr at eg i c, or t ac tic al de c i s ion b y c o un s el. Post Con v ictio n R e lie f A ct, hi s c l aim s have not b een pre v iou s l y liti gated or w aived , and failing evi d e nc e his co nv ic tion o r se nte nc e r esu lte d fr o m o ne or m or e o f th e err o rs e num e rated in the To b e e n ti tl e d t o po s t co n v i c ti o n re l ie f , defe nd ant mu s t prov e b y a pr ep onderance o f the 42 Pa. C

. S .A. 

### § 954 3 ( a) ( 2 )

. (2) Ineff ec tiv e assi st an ce o f co u n s e l which , i n th e ci rc um s t anc es o f the parti c ular c a se, so un d ermin e d th e truth-d e t e rmi ni ng p ro ces s that no reli able a djud ic ati o n o f g uilt or innocence c oul d h ave take n pl a ce ; ( 3) A pl ea of g uilty unl awfully indu ce d wh er e th e cir c um s t anc e s make it likel y th at th e indu ce m e nt cau sed th e p e tition e r t o pl ead gu i l ty and th e p e ti ti o n e r is i nn oce nt ; ( 4) T he i mpro p er o bstru c tion by go v e rnm e nt official s of th e p etition er's ri ght of ap p eal whe re a m erit o ri o u s app eal abl e i ss u e exis t e d and wa s p ro pe rly pre s erv ed in th e trial co urt ; ( 5) T he un availab ili ty at th e tim e of tri al o f ex culpat ory e vi de nce th at h a s s ub s equentl y b ec om e availab le an d w o u l d h ave c h ange d th e o u t com e of the trial if it h ad b ee n i ntroduced ; ( 6 ) T he i mp osi tion o f a se ntence g re at e r th an th e l awfu l m aximum; and (7) A proceedin g in a tri b un al with o ut j uri sd icti o n
.

### BY THE COURT :

Petitioner i s n o t entitled to re li e f o n app e al. WHEREFORE , b as ed on th e fore go ing r e a so n s, it i s r espec tfu lly ass e rted th at the properly d e nied the P e tition e r' s PCRA for the re as on s st ate d in this o pi ni on and on the re cord

. P C RA He aring, Octob er 12 , 2015, P a g e 7 2, Line 14 thr o u g h Pa g e 74, L i ne 2 1. In sum , the court S ame thing with the Mirand a Warning , he s i gn e d the Mir anda Warning and the Court doesn ' t find that cr e dible that h e m a de a st ate ment and th e n s ign e d a Mir and a Warning

. Al s o, on c e h e si gned the Miranda Warning, if it were l ate r , h e c o uld h ave s aid, o h, I didn ' t reali ze thi s , I'm -- l e t me have that , I want to tear it up becau s e I didn't want t o gi v e y ou th e s t atement an d I s e e n o w I didn't hav e t o. S o wh e n I con s id er his t es timon y wi th the written d o cu me nts, I find that th e tes timony of his att orn e y w as much more cre dibl e
. T h e re m ay n o t hav e b e en a l o t of cont a ct s , bu t i n th e se ca ses o ften there aren't , s o long as -- we se e s he w rote a long l e tte r to th e DA, we kn ow s h e w a s d o i ng h er j o b. She mad e an e ffort to do wh at one might w an t t o d o u n d er th e circumstances o f hi s he alth. The main g o al bein g to try and ke e p him out o f th e state c orre c tion al in s ti tu ti on
. Sh e worke d to g et the jnte rmedi ate punislunent.



### . . ) A s far as he r judg μi e .fit on whether o r not th e Commonw ealth h a d s uffi c i e nt eviden ce that he could be proven guilty, th at' s
. one of th e thin gs the defens e att o rne y ha s to do. And 

### in lig h t o f the st ate m e nt s , i n light of the se ar c h, in light o f th e e v id e nc e, and s h e s aid s he did no t ad v i se th e D efe nd ant to ple a d until sh e h a d se e n th e d is c o very, s he me n ti o ned that. S o s h e s aid o nc e sh e g o t th at then s he th o ug h t th e ir b est r ec ou rse w a s t o try and g et him a senten c e, hou s e arres t pr efe rably , an d un de r i n term e di at e puni s hm e nt. S o th e re wa s n ' t Ineffective a s si s tan c e o f coun s el. She did wh at s h e
. c o u ld

. 

### It was my d e ci s ion th at sh e didn ' t e xp e ct , but that s he had w arned him , and that 's in writing t o o , she h a d w arn e d him that I wouldn't h ave to a c c ept th at , that sh e would ar'g u e for it , but th e r e wa s no guar ant e e wh at the se n te n c ing ju d g e mi g ht d o
. And s o thatv- 

## .t'1e

. Court do e sn ' t find any in eff ective a s sis tanc e of couns e l. ( ~ .- - · · A s to th e c o nsent t o se arch the car , it just doesn't make se n se th at th e p o lice wo uld hav e s e ar c hed th e car and then a s ked him to si g n a cons e nt. And even d e spite his probl e m s w ith hi s medi cal c onditi o n and some problems with his phy s ical -- or man y problems with hi s p h y si cal h e alth and h e s ays ther e ar e s o m e m e nt al, t o o , certainl y h e w o uld have kno w n , aft e r th ey alr ea dy searched th e c ar, h e w ould have refu se d t o si gn a con s ent to se arch

. I m ean , w h at -- he w oul d h ave said, wh at do y ou wan t me t o s ign th at fo r , y ou've alre ady s e ar c hed it

.