dismissing appellant’s ineffective assistance of counsel claim because appellant could not show prejudice for -5- J-S37032-17 counsel’s failure to file a post-sentence motion to withdraw the guilty plea, where the guilty plea was entered voluntarily and knowingly
How later courts described this case
- dismissing appellant’s ineffective assistance of counsel claim because appellant could not show prejudice for -5- J-S37032-17 counsel’s failure to file a post-sentence motion to withdraw the guilty plea, where the guilty plea was entered voluntarily and knowingly
- bald assertion of counsel’s ineffectiveness must fail without supporting evidence and argument or P.C.R.A. hearing
Written by the judges who cited it.
The opinion
*562 KELLY, Judge,
concurring:
While I agree with the result reached by the majority, I am compelled to note the following. First, I must respectfully disagree with the majority to the extent it questions this Court’s ability to review PCRA proceedings “wherein no evidence was presented.” Majority Opinion at 3. Given that this Court is empowered to review PCRA petitions wherein an evidentiary hearing was not even granted, see Commonwealth v. Weddington, 514 Pa. 46 , 522 A.2d 1050 (1987), it would appear to me that we are authorized as well to review any petition such as this in which a hearing was granted but no evidence presented. The failure to present evidence at such a hearing does not, in my opinion, place us in the role of fact finder during appellate review, but rather simply indicates that the burden of proof incumbent upon any defendant properly granted an evidentiary hearing has not been overcome.
Such is this case herein. By failing to appear at the evidentiary hearing, appellant effectively lost whatever chances he had had to successfully establish that his counsel had so ineffectively served him during his guilty plea as to sufficiently undermine the reliability of the truth-determining process. See Commonwealth v. Thomas, 396 Pa.Super. 92, 99 , 578 A.2d 422, 425 (1991) (“Under the PCRA, a petitioner must not only establish ineffective assistance of counsel, petitioner must also establish that the ineffectiveness was of a type ‘which in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilty or innocence could have taken place.’ ”). Hence, I concur. 1
. I note in passing that I would consider appellant’s challenge to the imposition of sentence for violation of parole unreviewable at this stage in the proceedings. Appellant does not dispute that he actually violated parole. Rather, appellant argues only that the sentence imposed for such a violation was an abuse of discretion. Such an issue is not cognizable under the PCRA. See Commonwealth v. Wolfe, 398 Pa.Super. 94 , 580 A.2d 857 (1990).