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[U] Commonwealth v. Foy

Superior Court of Pennsylvania

January 21, 2014

COMMONWEALTH OF PENNSYLVANIA Appellee
v.
DUSTIN FOY, Appellant

NON-PRECEDENTIAL DECISION

Appeal from the PCRA Order March 8, 2013 In the Court of Common Pleas of Lebanon County Criminal Division No(s).: CP-38-CR-0000571-2011

BEFORE: ALLEN, LAZARUS, and FITZGERALD, [*] JJ.

MEMORANDUM

FITZGERALD, J.

Appellant, Dustin Foy, appeals from the order entered in the Lebanon County Court of Common Pleas, dismissing his first petition filed pursuant to the Post Conviction Relief Act ("PCRA"), [1] for ineligibility for relief as he was no longer serving a sentence for the crime that underlies the petition and on the merits. Appellant contends the PCRA court erred in dismissing his petition because plea counsel was ineffective in unlawfully inducing him to plead guilty and failing to abide by the principles set forth under Lafler v. Cooper, 132 S.Ct. 1376 (2012). We affirm.

We state the facts and procedural history as set forth by the PCRA court:

On May 23, 2011, the Commonwealth filed a Criminal Information, charging [Appellant] with two counts of Simple Assault[2] stemming from a domestic dispute involving his girlfriend at the time, Stacey L. Werner, as well as one count of Disorderly Conduct[3] for behavior witnessed by and directed at the North Cornwall police, who were called to the scene of the domestic dispute. The Information also charged [Appellant] with a summary violation of North Cornwall Township Ordinance 70-3(b)(1), Disorderly Conduct Towards Police Officer.
On September 28, 2011, pursuant to a negotiated plea agreement with the Commonwealth, [Appellant] pleaded guilty to the misdemeanor and summary charges of Disorderly Conduct in exchange for the Commonwealth's nol pros of both simple assault charges and a sentence of six (6) to twelve (12) months. . . . On October 26, 2011, this Court granted the Commonwealth's motion to nol pros both counts of Simple Assault and sentenced [Appellant] to a term of six (6) months to one (1) year on the misdemeanor charge of Disorderly Conduct.
On July 5, 2012, [Appellant] filed a pro se [PCRA] Petition . . . . We appointed counsel to represent [Appellant] . . . .

PCRA Ct. Op., 3/8/13, at 1-3 (unpaginated) (footnotes omitted).

A hearing was held on December 10, 2012. On March 4, 2012, the PCRA court entered the underlying order denying Appellant's PCRA petition, along with an opinion. This timely appeal followed. Appellant filed a court- ordered Pa.R.A.P. 1925(b) statement of errors complained of on appeal. The PCRA court did not file a Pa.R.A.P. 1925(a) opinion.

Appellant raises the following issues for our review:

1. Whether [the PCRA] court when it denied [Appellant's] PCRA petition, as plea counsel was ineffective for unlawfully inducing [Appellant] to plead guilty?
2. Whether [the PCRA] court erred when it denied [Appellant's] PCRA petition, as plea counsel was ineffective for failing to abide by the ...

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