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COMMONWEALTH PENNSYLVANIA v. JAMES EARL JOHNSON (01/15/86)

submitted: January 15, 1986.

COMMONWEALTH OF PENNSYLVANIA
v.
JAMES EARL JOHNSON, APPELLANT



Appeal from the Order of April 6, 1984, in the Court of Common Pleas of Erie County, Pennsylvania, at Nos. 1030 of 1978, and 78 and 273 of 1979.

COUNSEL

Gary V. Skiba, Erie, for appellant.

Shad Connelly, Assistant District Attorney, Erie, for Commonwealth, appellee.

Cavanaugh, Olszewski and Kelly, JJ.

Author: Kelly

[ 355 Pa. Super. Page 127]

This case involves an appeal from an order denying the appellant post-conviction relief. The appellant has raised ten issues on appeal. The primary issue raised by the appellant and the only one argued before the PCHA court is whether re-sentencing counsel was ineffective in failing to elicit the appellant's desires regarding an appeal and in failing to advise the appellant as to the effect of the order granting his motion to withdraw his original guilty plea on the notice of appeal taken from the original sentence imposed. We find no merit in this appeal and affirm the order of the learned PCHA court.

On January 10, 1979, after a jury trial, the appellant was found guilty of rape and burglary. On May 16, 1979, a second jury found the appellant guilty of a second set of

[ 355 Pa. Super. Page 128]

    rape and burglary charges. On June 18, 1979, the appellant pleaded guilty to a third set of charges for rape, burglary and assault.

At the plea hearing on June 18, 1979, the appellant signed a document entitled "Defendant's Statement of Understanding of Rights Prior to Guilty Plea" which contained a clear statement of the appellant's rights with respect to his plea. On August 27, 1979, the appellant was sentenced on all three sets of charges. The sentencing colloquy contained a full and correct statement of the appellant's right to appeal as well as an additional inquiry as to the voluntary nature of the appellant's guilty plea. The appellant and his attorney also signed a document entitled "Right of Appeal Following Sentence," which contained a complete statement of post-sentence rights.

The trial court proceeded to impose sentence upon the appellant as follows:

At No. 78 of 1979 (Plea: June, 1979)

Rape: 10 to 20 years imprisonment

Burglary: 5 to 10 years imprisonment, consecutive to imprisonment at No. 78 of 1979, Rape.

Assault: suspended

At No. 1030 of 1978 (Trial: January, 1979)

Rape: 10 years probation, consecutive to imprisonment at No. 78 of 1979.

Burglary: 10 years probation, concurrent to imprisonment at No. 78 of 1979

At No. 273 of 1979 (Trial: May, 1979)

Rape: 10 years probation, consecutive to probation at 1030 of 1978, Burglary, and concurrent with the imprisonment term imposed at No. 78 of 1979, Burglary.

Burglary: 10 years probation, concurrent with probation at No. 273 of 1979, Rape.

On September 6, 1979, the appellant filed a motion to withdraw his guilty plea, alleging that he did not understand the plea bargain and that he had not been sentenced in accordance with his expectations. Two terms of probation

[ 355 Pa. Super. Page 129]

    were imposed consecutively rather than concurrently as had been anticipated. On September 26, 1979, timely notice of appeal was filed. On November 28, 1979, the motion to withdraw the guilty plea was granted by the trial court.*fn1

On December 10, 1979, the court ordered that the appellant be returned from state custody to the Erie County Jail by January 9, 1980, in order to give the appellant time to prepare for trial scheduled for January 15, 1980. Plea negotiations continued.

On January 18, 1980, the appellant appeared in court for the purpose of re-entering his guilty plea. The appellant again signed both the documents acknowledging his rights regarding guilty pleas and appeal. The transcript of the sentencing hearing indicates that prior counsel, Miss Fisher, had written the appellant two letters explaining "all the procedures and what was being done." (Re-Sentencing Transcript at 4). The appellant indicated that he understood what was going on.

The court fully explained the plea bargain and stated that the court would accept it. Appellant's attorney, Mr. McGeorge, also explained the bargain. The appellant stated that he understood the bargain. The Court then re-sentenced the appellant in accordance with the bargain as follows:

At No. 1030 of 1978 (Trial: January, 1979)

Rape: 10 to 20 years imprisonment

Burglary: 5 to 10 years imprisonment, consecutive to imprisonment at No. 1030 of 1978, Rape.

At No. 273 of 1979 (Trial: May, 1979)

Rape: 10 years probation, concurrent with imprisonment at No. 1030 of 1978, Rape.

Burglary: 10 years probation, consecutive to probation at No. 273 of 1979, Rape; concurrent with and overlapping the imprisonment at No. 1030 of 1978, Burglary.

[ 355 Pa. Super. Page 130478]

A.2d 21 (1984); Commonwealth v. McCaskill, 321 Pa. Super. 266, 468 A.2d 472 (1983). In order for a defendant to be granted collateral relief he must demonstrate a credible claim that he has actually received ineffective assistance. A naked allegation without more will not suffice. Commonwealth v. Parker, 503 Pa. 336, 469 A.2d 582 (1983). Furthermore, counsel is presumed competent and will not be deemed ineffective for failing to pursue a meritless claim. Commonwealth v. Strickland, 306 Pa. Super. 516, 452 A.2d 844 (1982).

We note initially that the appellant's theory on appeal is quite different from that urged in the court below. Instantly, he argues he was misled into thinking no action was necessary to perfect an appeal. However, at the PCHA hearing the appellant testified that he spoke to re-sentencing counsel immediately after sentencing, expressing his desire to pursue an appeal. He also testified that he wrote both re-sentencing counsel and the Erie County Clerk of Courts to see if an appeal was in fact taken.

The appellant's self-serving and uncorroborated allegations were rejected by the PCHA court in favor of the testimony of resentencing counsel, Gustave McGeorge. Attorney McGeorge testified that: the appellant did not request that counsel take an appeal; the appellant never wrote asking whether an appeal was taken; the appellant expressed satisfaction with the plea bargain; and when asked, "if there was anything else he needed," the appellant replied, "no." The only letter received from appellant by the Erie County Clerk of Courts was received thirty-seven days after the time for an appeal had expired, and did not indicate that he had requested that counsel perfect an appeal nor did it inquire as to the status of such an appeal. In short, the appellant's allegations below were wholly uncorroborated, directly contradicted, and understandably rejected.

It was for the PCHA court to weigh the credibility of the witnesses and to resolve conflicts in the evidence. Accordingly, the PCHA court rejected the appellant's selfserving

[ 355 Pa. Super. Page 132]

    and uncorroborated statements and specifically found that the appellant did not request that counsel file an appeal and that the appellant had in fact made a knowing and intelligent ...


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