J. S50012/14 

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37 

COMMONWEALTH OF PENNSYLVANIA : 

: 

IN THE SUPERIOR COURT OF 

PENNSYLVANIA 

v. : 

: 

JASON SEAN EVANS, : No. 1836 WDA 2013 

: 

 Appellant : 

Appeal from the PCRA Order, October 22, 2013, 

in the Court of Common Pleas of Washington County 

Criminal Division at Nos. CP-63-CR-0000068-2009, 

CP-63-CR-0001278-2009, CP-63-CR-0001564-2009, 

CP-63-CR-0002458-2009, CP-63-CR-0002643-2009, 

CP-63-CR-0002814-2009, CP-63-CR-0002815-2009, 

CP-63-CR-0002816-2009, CP-63-CR-0002817-2009, 

CP-63-CR-0002818-2009 

BEFORE: FORD ELLIOTT, P.J.E., SHOGAN AND ALLEN, JJ. 

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED OCTOBER 6, 2014 

 Appellant appeals the order denying relief pursuant to his first petition 

filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. 

§§ 9541-9546. Finding no error, we affirm. 

 On October 5, 2010, appellant entered a plea of guilty to one count of 

robbery and nine counts of burglary at the above-listed ten criminal docket 

numbers. Appellant was thereafter sentenced to 8 to 20 years’ 

imprisonment followed by 10 years’ probation. The trial court opinion 

provides an accurate synopsis of the ensuing procedural history: 

 The defendant was represented throughout the 

proceedings by Gary Graminski, Esq. The date of 
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the plea hearing and sentencing was October 5, 

2010. The defendant filed an untimely pro se Motion 

to Withdraw Guilty Plea on October 21, 2010. 

(Docket 21). Gary Graminski, Esq., withdrew his 

appearance on December 1, 2010, and 

Daniel Chunko, Esq., entered his appearance that 

same day. (Docket 23). The defendant filed a 

pro se Motion for Reconsideration of Sentence or to 

Alternatively Extend Deadlines to File Allowance of 

Appeal Under Pennsylvania’s Post Conviction Relief 

Act on January 18, 2011. On January 24, 2011, the 

Court ordered the Commonwealth to respond within 

twenty (20) days. (Docket 22). 

 On February 28, 2011, the post-sentence 

pro se motion filed on October 21, 2010, was denied 

by operation of law pursuant to Pa.R.Crim.P. 

720B(3)c. (Docket 24). An Order of Court was 

issued on April 20, 2011, indicating that the 

Commonwealth had never responded to the Order

dated January 24, 2011, and that the defendant had 

not appealed the February 28, 2011 Order. (Docket 

25). The Court again ordered the Commonwealth to 

respond within twenty (20) days. The 

Commonwealth did not respond until June 10, 2011. 

(Dockets 26 & 27). The Court issued an Order of 

Court on June 13, 2011, and denied both of the 

defendant’s motions. (Docket 28). It determined 

that no hearing or argument was required on the 

motions. The defendant, through counsel, filed a 

PCRA Petition on October 4, 2011, and alleged 

ineffective assistance of counsel, a plea of guilty 

unlawfully induced, and an improper sentence. 

(Docket 29). The defendant also filed Defendant’s 

Supplement to PCRA Petition on July 30, 2012. 

(Docket 33). The Commonwealth filed its Answer to 

Petition for Post Conviction Relief on August 2, 2012, 

and the Court filed a Notice of Intention to Dismiss 

PCRA Petition on October 19, 2012. (Dockets 34 & 

35). The defendant responded with a pro se 

Proposed Dismissal Response on October 25, 2012, 

and Daniel Chunko withdrew his appearance on 

November 15, 2012. (Dockets 36 & 38). 
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 Judge Moschetta Bell dismissed the 

defendant’s PCRA Petition without a hearing on 

November 19, 2012. (Docket 37). The defendant 

responded with a Motion for Appointment of 

Counsel/Change of Venue/Re-Review of the 

Defendant’s PCRA Petition and Amended Petition and 

Review of This Court’s Order to Dismiss Defendant’s 

PCRA Petition Without a Hearing on December 8, 

2012. (Docket 39). 

 This case was transferred to the undersigned 

on December 21, 2012, and Mary Bates, Esq., was 

appointed to represent the defendant on January 2, 

2013. (Docket 40). She was given thirty (30) days 

to file an Amended Petition. Although never 

explicitly stated, this Court has effectively 

re-reviewed the defendant’s PCRA Petition as the 

defendant requested. Attorney Bates filed a Petition 

for Extension of Time to File Amended Petition on 

January 28, 2013, and this Court granted a 

thirty (30) day extension. (Docket 41). 

Attorney Bates submitted to the Court on April 22, 

2013, a Petition to Withdraw as Counsel and for 

Extension of Time for Pro Se Defendant to File an 

Amended/Supplemental PCRA Petition. (Dockets 43 

& 47). Attached was a “Turner/Finley Letter,” also 

known as a “No Merit Letter,” indicating that the 

defendant’s PCRA Petition is without merit. The

defendant subsequently filed a pro se Supplemental 

Addition to Amended Petition for Post Conviction 

Collateral Relief on June 11, 2013. (Docket 44). 

 On July 2, 2013, this Court issued an Order 

and Notice notifying the defendant of this Court’s 

intent to dismiss his PCRA Petition. (Docket 45). 

The Court also informed the defendant that pursuant 

to the Court in Turner, he must now proceed pro se, 

by privately retained counsel, or not at all. 

Commonwealth v. Turner, 544 A.2d 927 (Pa. 

1988). This Court found that the grounds presented 

for challenge in the defendant’s aforementioned 

petitions and responses were patently frivolous, not 

supported in law or in fact, and no genuine issues of 

material fact entitled the defendant to relief, and no 
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purpose would have been served by any further 

proceeding. Accordingly, the PCRA Petition was 

denied on October 22, 2013. (Docket 48). 

 The defendant filed this appeal on 

November 12, 2013. (Docket 50). 

Trial court opinion, 1/15/14 at 7-9.1

 In his rambling, sometimes incoherent, brief, appellant raises four 

issues on appeal, which we characterize as follows: 

1. Whether appellant’s plea was improperly 

induced by the Commonwealth’s claim that he 

faced deadly weapon enhancements on several 

cases where the record showed that it was not 

true? 

 

1

 We observe that on November 19, 2012, the PCRA court entered an order 

dismissing appellant’s PCRA petition. The court did not revisit this matter 

until December 21, 2012, a time beyond thirty days of the dismissal order 

and where the court had no jurisdiction to further act. See 42 Pa.C.S.A. 

§5505. This appeal is untimely because the notice of appeal was not filed 

within thirty days of the November 19, 2012 order. Pa.R.A.P., Rule 903(a), 

42 Pa.C.S.A. Nonetheless we will not quash. We note that on November 19, 

2012, the PCRA court also entered an order permitting appellant’s counsel to 

withdraw. The order was based upon a petition by counsel averring that 

counsel had been contacted by appellant’s brother who stated that appellant 

wanted counsel to withdraw and proceed on his own. We find that the PCRA 

court was obligated at that point to conduct a colloquy of appellant pursuant 

to Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998). Because the court 

failed to do so, appellant was denied the assistance of counsel at a time 

when he had a right to counsel, may have desired counsel, and when his 

appellate rights were rapidly slipping away. We find that the PCRA court’s 

inaction in this regard constituted a breakdown in the operation of the court. 

“Even when a party has filed an untimely notice of appeal, however, 

appellate courts may grant a party equitable relief in the form of an appeal 

nunc pro tunc in certain extraordinary circumstances [such as fraud or a 

breakdown in the operations of the court]. Commonwealth v. Stock, 545 

Pa. 13, 679 A.2d 760, 763-64 (1996).” Criss v. Wise, 781 A.2d 1156, 

1159 (Pa. 2001). Consequently, we will review the merits of appellant’s 

issues. 
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2. Whether trial counsel was ineffective for 

allowing appellant to plead guilty in light of the 

improper inducement, whether trial counsel 

was ineffective in failing to seek withdrawal of 

appellant’s plea, and whether all subsequent 

counsel were ineffective in failing to raise these 

issues? 

3. Whether the court erred in failing to dismiss 

certain charges because the Commonwealth 

violated the speedy trial rule? 

4. Whether the trial court erred in not providing 

appellant sooner with the transcript of his 

guilty plea hearing? 

We will address these matters seriatim. 

 Our standard of review for an order denying post-conviction relief is 

whether the record supports the PCRA court’s determination, and whether 

the PCRA court’s determination is free of legal error. Commonwealth v. 

Franklin, 990 A.2d 795, 797 (Pa.Super. 2010). The PCRA court’s findings 

will not be disturbed unless there is no support for the findings in the 

certified record. Id.

Moreover, as one of appellant’s issues on appeal is stated in terms of 

ineffective assistance of counsel, we also note that appellant is required to 

make the following showing in order to succeed with such a claim: (1) that 

the underlying claim is of arguable merit; (2) that counsel had no reasonable 

strategic basis for his or her action or inaction; and (3) that, but for the 

errors and omissions of counsel, there is a reasonable probability that the 

outcome of the proceedings would have been different. Commonwealth v. 
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Rivera, 10 A.3d 1276, 1279 (Pa.Super. 2010). The failure to satisfy any 

prong of this test will cause the entire claim to fail. Commonwealth v. 

Daniels, 947 A.2d 795, 798 (Pa.Super. 2008). Finally, counsel is presumed 

to be effective, and appellant has the burden of proving otherwise. 

Commonwealth v. Pond, 846 A.2d 699, 708 (Pa.Super. 2003). 

 Appellant first asserts that his plea was improperly induced by the 

Commonwealth’s false claim that it could have used deadly weapon 

enhancements against him on a number of charges. The exchange to which 

appellant was referring occurred during the plea colloquy: 

THE COURT: You are entering pleas today to a 

variety of felonies, one being robbery, a felony of the 

first degree. It carries with it a maximum sentence 

of ten to twenty years, a maximum fine of $25,000. 

You are also entering a plea to a number of 

burglaries, I believe, about five. Is that right, 

Mr. Carroll [the assistant district attorney]? 

MR. CARROLL: There is one robbery and the 

remaining nine are burglaries, either F-1’s or F-2’s.

THE COURT: Those burglaries that are felonies of 

the first degree, each carry a maximum sentence of 

ten to twenty years, and a maximum fine of 

$25,000. Those burglaries that are felonies of the 

second degree each carry with them a maximum 

sentence of five to ten years and a $25,000 fine as 

well. 

 I understand that there will be some pleas to 

felony three type of crime and that felony three 

carries with it a maximum three and a half to seven 

years and a $15,000 fine. If through this process 

today you enter a plea to something other than a 

felony of the first, second or third degree, I will 

review with you your statutory maximum and 
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minimum sentences and your maximum and 

minimum fines. You are not facing any sentences 

today where the Commonwealth is invoking a 

mandatory minimum sentence. Is that right, 

Mr. Carroll? 

MR. CARROLL: That’s correct. Nor are we using any 

type of enhancements for deadly weapon used or 

possessed. 

THE COURT: Although you could have? 

MR. CARROLL: I could have, yes. 

THE COURT: On a number of cases? 

MR. CARROLL: Yes. 

Notes of testimony, 10/5/10 at 4-6.

 Appellant argues that he was charged with only one crime, the 

robbery, in which he brandished a deadly weapon. Therefore, the 

Commonwealth falsely related to him that it could have used deadly weapon 

enhancements on a number of his offenses and that this factor induced him 

to plead guilty. 

We find no merit in appellant’s claim. First, at the time the alleged 

inducement occurred, appellant had already decided to plead guilty, which 

was the purpose of the proceeding at which he was appearing. Second, the 

trial court had just finished explaining appellant’s sentencing exposure. 

Third, the district attorney’s statement simply cannot be interpreted as a 

threat intending to induce appellant to plead guilty; rather, it informed 

appellant that no deadly weapon enhancement would be applied. Fourth, it 
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is unclear whether the district attorney was stating whether he could apply 

deadly weapon enhancement to a number of appellant’s cases or whether he 

could apply mandatory minimum sentences or deadly weapon 

enhancements; the trial court had asked about mandatory minimum 

sentences immediately before the deadly weapon enhancements. We find 

appellant’s claim to be specious.

Appellant next asserts that trial counsel was ineffective in allowing 

appellant to accept a plea after the above-described unlawful inducement 

and that subsequent counsel were ineffective in failing to raise this 

argument. Obviously, having just analyzed appellant’s unlawful inducement 

issue, and having found it specious, there is no merit to the issue underlying 

his claim of ineffective assistance; consequently, there is no ineffectiveness. 

 Appellant also contends that trial counsel was ineffective in failing to 

file a motion to withdraw his guilty plea which appellant allegedly requested 

after sentencing. We find no ineffectiveness. “After sentence has been 

imposed, a defendant must show that manifest injustice will result if he is 

not permitted to withdraw the plea.” Commonwealth v. Kirsch, 930 A.2d 

1282, 1284 (Pa.Super. 2007), appeal denied, 945 A.2d 168 (Pa. 2008). In 

his argument, appellant fails to analyze or explain what manifest injustice 

occurred as a result of his plea. Thus, he fails to demonstrate that he likely 

would have been permitted to withdraw his plea; consequently, we see no 

merit to the underlying claim. Finally, appellant filed a pro se motion to 
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withdraw his plea. Thus, we find that appellant has failed to satisfy the 

prejudice prong also. 

 In his third issue, appellant argues that the court erred in failing to 

dismiss certain charges because the Commonwealth violated the speedy trial 

rule. Appellant’s guilty plea waived any claim of error pursuant to 

Pa.R.Crim.P., Rule 600, 42 Pa.C.S.A. Commonweealth v. Barbaro, 94 

A.3d 389, 391 n.2 (Pa.Super. 2014). Moreover, during his plea colloquy, the 

trial court specifically informed appellant that he was withdrawing and 

waiving his Rule 600 claims by pleading guilty and appellant agreed. (Notes 

of testimony, 10/5/10 at 7-8.) 

 In his fourth and final issue, appellant complains that the trial court 

erred in not supplying him with his guilty plea transcript quickly enough. 

Unfortunately, appellant has inadvertently omitted from his brief three pages 

(pp. 42-44) of an apparent four-page argument in this regard. 

Consequently, we cannot analyze appellant’s claim, and we find no basis for 

reversing the order of the PCRA court denying appellant relief. 

 Accordingly, having found no merit in the issues on appeal, we will 

affirm the order below. 

 Order affirmed. Petition for bail pending appeal denied. 
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Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 10/6/2014