Com. v. Midgley, M.

J-S28019-22

                                   

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    MICHAEL MIDGLEY                            :
                                               :
                       Appellant               :   No. 166 MDA 2022

            Appeal from the PCRA Order Entered December 10, 2021
    In the Court of Common Pleas of Lackawanna County Criminal Division at
                       No(s): CP-35-CR-0001781-2018


BEFORE: OLSON, J., McLAUGHLIN, J., and KING, J.

OPINION BY McLAUGHLIN, J.:                          FILED: FEBRUARY 7, 2023

        Michael Midgley appeals the denial of his petition for relief under the

Post-Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. He claims

that his petition raised meritorious claims. He also maintains that the court

erred in denying his request to proceed pro se, appointing counsel, and not

responding to his motion to dismiss the appointment. He further claims that

PCRA counsel was ineffective. We affirm.

        Midgley pleaded guilty in January 2019 to two counts of simple assault

and one count of terroristic threats.1 Paragraph 13 of the written guilty plea

reads as follows:

           13. State specifically in detail any plea agreement with the
           District Attorney

              Plea (M2), (M2), (M1) all other charges NP’d

____________________________________________


1   18 Pa.C.S.A. §§ 2701(a)(2) and 2706(a)(1), respectively.
J-S28019-22


            (M1) stipulated

            C/W does not oppose a probationary sentence on
            terroristic threats

Guilty Plea Colloquy, dated 1/31/19, at ¶ 13. Midgley also signed “Yes” to the

question in the colloquy that read “Do you understand that the Court is not

bound by the agreement you made with the District Attorney?” Id. at ¶ 14.

      At the guilty plea hearing, the Commonwealth stated that it “would have

no objection to the terroristic threats [being] treated as a long tail of

supervision if the Court believes that that’s appropriate.” N.T., Guilty Plea

Hearing, 1/31/19, at 2. Counsel for Midgley stated that the parties had

stipulated that the Commonwealth “is not going to ask for [prison] time on

the terroristic threats.” Id. at 3. The court noted that the guilty plea colloquy

form read “stipulated probation” but asked for clarity regarding whether that

meant the Commonwealth did not oppose probation. Id. The Commonwealth

agreed that as to the charge of terroristic threats, it did not oppose probation.

Id. Relevant to this appeal, the court engaged in an oral colloquy with Midgley

regarding the stipulation.

         Q [The Court]: The attorneys have just stated on the record
         that it’s their belief based on the way the information is
         charged there is no merger and that I have the ability to run
         the sentences consecutive, so if I did that your maximum
         exposure here today, sir, is nine years and/or $20,000. Do
         you understand that?

         A [Midgley]: I do, your Honor. When I spoke with my
         attorney he said that that would be stipulated for the
         terroristic threats.




                                      -2-
J-S28019-22


         Q: That’s what we are here to talk about it. It’s no longer
         stipulated. There is no guarantee of probation as a tail on
         the terroristic threats, do you understand that?

         A: I do understand it now.

         [Defense Counsel]: It’s not a closed agreement, it’s that
         [the Commonwealth] is not - - -

         [The Commonwealth]: If the judge disagrees - -

         [Defense Counsel]: You can’t hold a judge to an agreement.

         Q [Court]: I’m not bound by it. I don’t have to do it, and if
         I don’t do it you have no recourse, do you understand?

         A [Midgley]: Yes.

         Q: I just want to make sure if you think, like, I’m
         guaranteeing - - I’m pleading guilty because I’m guaranteed
         a probationary tail on terroristic threats we don’t have [sic]
         deal. Do you understand that?

         A: Yes.

                                        ***

         Q [Court]: Sir, has anyone made any promises or threats to
         you in exchange for your guilty plea here today?

         A [Midgley]: No.

         Q: We just talked about you thought, oh, I’m going to be
         guaranteed a probationary tail on the terroristic threats, but
         you now know that there is no guarantee of that even if you
         plead guilty. Do you understand that?

         A: Yes.

Id. at 6, 7. The court then continued with an oral colloquy with Midgley. The

court imposed an aggregate term of four and one half to nine years’

incarceration. We affirmed the judgment of sentence, and our Supreme Court

denied   his   petition   for   allowance   of   appeal,   in   August   2020.   See

Commonwealth v. Midgley, No. 873 MDA 2019, 

                                        -3-
J-S28019-22



(Pa.Super. Mar. 16, 2020) (unpublished memorandum), appeal denied, No.

173 MAL 2020, 

 (Pa. filed Aug. 18, 2020).

      Midgley filed the instant petition, his first, on March 30, 2021. He raised

the following claims:

      a. Ineffective    assistance    of    counsel,   intentional
         misrepresentation and violations of the defendant’s due
         process rights by Attorney Douglas Vanston[;]

      b. Malicious prosecution, violations of due process, coerce [sic]
         tactics and breach of plea agreement by ADA Gene
         Riccardo[;]

      c. Errors by the court in sentencing and or information used to
         support an aggravated sentence[;]

      d. Errors within the [judge’s] opinion to the Superior Court[;]

      e. Errors within the pre[-]sentence report as stated by
         defendant’s counsel that [went] uncorrected, and defendant
         did not get to review the pre-sentence report in violation of
         due process[.]

Pro-Se PCRA Petition, at ¶ 12(a)-(e).

      Midgley attached a brief to his PCRA petition, raising an additional claim

that trial counsel was ineffective for failing to challenge Midgley’s arrest and

the search of his home without a warrant. See Brief in Support of PCRA, at

32. The court appointed counsel, and Midgley filed a “Petition to Re-Appoint

Counsel,” on April 26, asking for new PCRA counsel due to an alleged conflict

of interest. The PCRA court did not rule on the motion at that time. PCRA




                                      -4-
J-S28019-22



counsel filed a Turner/Finley letter in August 2021, and a petition to

withdraw, which the court granted.2

       The court then, in September 2021, appointed new PCRA counsel, who

filed a Turner/Finley letter and a request to withdraw. The Turner/Finley

letter listed the issues from Midgley’s pro se petition and explained counsel’s

conclusion that the issues were meritless. See id. at 3-5. The court granted

counsel’s petition to withdraw on November 4 and issued notice of its intent

to dismiss the petition without a hearing. See Order, filed 11/4/21.

       The following day, the court docketed Midgley’s “Motion to Dismiss

Counsel and Proceed Pro Se.” Although the motion was docketed November

5, Midgley dated it November 1, 2021, and the certified record contains an

envelope attached to the motion bearing postage dated November 3, 2021.

Midgley’s motion asked the court to remove PCRA counsel and allow him to

proceed pro se. He also claimed that he had previously filed a petition to

proceed pro se on June 14, 2021. See Motion, filed 11/5/21, at ¶ 15.

       The court dismissed Midgley’s PCRA petition, on December 10; it did not

rule on Midgley’s motion to represent himself. See Order, filed 12/10/21. The

docket reflects that the order was served on PCRA counsel, even though he

had withdrawn his appearance, on December 10. The docket does not reflect

that the order was served on Midgley personally. It consequently does not

show the date on which he was served.
____________________________________________


2 See Commonwealth v. Turner, 

 (Pa. 1988);
Commonwealth v. Finley, 

 (Pa.Super. 1988) (en banc).

                                           -5-
J-S28019-22



       Midgley appealed, and the trial court docketed his notice of appeal on

January 24, 2022. That date is more than 30 days after December 10, and a

notice of appeal must be filed within 30 days after the entry of the order from

which the appeal is taken (barring exceptions not relevant here). See

Pa.R.A.P. 903(a).3 The certified record does not contain sufficient information

for us to determine whether the prisoner mailbox rule – which deems an

inmate’s pro se filing as filed on the date the inmate delivers it to prison

authorities for mailing4 – renders the appeal timely. There is no need for

proceedings to resolve that question because the time for Midgley to file an

appeal never began to run.

       The time for the filing of a notice of appeal runs from the order’s “entry.”

 “Entry” of an order in a criminal case occurs for present purposes on the

day the clerk of the trial court “mails or delivers copies of the order to the

parties[.]” Pa.R.A.P. 108(a)(1), (d)(1). Where, as here, the court dismisses a

PCRA petition without a hearing, the judge must advise the petitioner of

certain things by specified means and effectuate service “as provided in Rule

of Criminal Procedure 114.” Pa.R.Crim.P. 907(4). Rule 114 requires the trial

court to serve copies of the order “on each party’s attorney, or the party if


____________________________________________


3“Except as otherwise prescribed by this rule, the notice of appeal required
by Rule 902 (manner of taking appeal) shall be filed within 30 days after the
entry of the order from which the appeal is taken.” Pa.R.A.P. 903(a).

4See Pa.R.A.P. 121(f); Commonwealth v. Kennedy, 

, 1132
n.8 (Pa.Super. 2021).

                                           -6-
J-S28019-22



unrepresented,” and record the date of service on the docket. See

Pa.R.Crim.P. 114(B)(1), (C)(2)(c).

     We have previously considered the proper treatment of an appeal where

the lower court docket does not include a notation stating that a copy of the

order under appeal has been provided to the appellant. See Commonwealth

v. Jerman, 

, 368 (Pa.Super. 2000). There, although the notice

of appeal was dated less than 30 days after the date on the order at issue,

the notice of appeal was not docketed until after the appeal period had

expired. 

. At the time Jerman was decided, the relevant provisions

of the Rules of Criminal Procedure bore a different rule number, Rule 9025,

than the present rule, Rule 114. Rule 9025 provided:


     Upon receipt of an order from a judge, the clerk of courts shall
     immediately docket the order and record in the docket the date it
     was made. The clerk shall forthwith furnish a copy of the
     order, by mail or personal delivery, to each party or
     attorney, and shall record in the docket the time and
     manner thereof.

Pa.R.Crim.P. 9025 (repealed) (emphasis added).

     In Jerman, we reviewed the docket entries and found no indication that

the trial court clerk had furnished a copy of the order to the appellant. We

therefore concluded that the time in which to take an appeal had never begun

to run and treated the appeal as timely. Jerman, 

.

     Since Jerman, the provision of the criminal rules requiring the clerk to

note service on the parties on the docket has been moved to Rule 114. Rule



                                     -7-
J-S28019-22



114 now includes matters that Rule 9025 did not cover, and the portions

corresponding to Rule 9025 have different wording. The relevant portions

state:

         (B) Service

              (1) A copy of any order or court notice promptly shall be
                  served on each party’s attorney, or the party if
                  unrepresented.

              (2) The clerk of courts shall serve the order or court notice,
                  unless the president judge has promulgated a local rule
                  designating service to be by the court or court
                  administrator.

                                       ***

         (C) Docket Entries

              (1) Docket entries promptly shall be made.

              (2) The docket entries shall contain:

                    (a) the date of receipt in the clerk's office of the order
                        or court notice;

                    (b) the date appearing on the order or court notice;
                        and

                    (c) the date of service of the order or court notice.

Pa.R.Crim.P. 114(B)(1), (2); (C)(1), (2).

         Nonetheless, unpublished decisions of this Court applying Rule 114 have

cited Jerman and found appeals timely where the trial court’s docket did not

include the information required by Rule 114. See, e.g., Commonwealth v.

Cash, No. 1294 WDA 2021, 

, at *4 (Pa.Super. May 13,

2022) (unpublished memorandum); Commonwealth v. Martin, No. 970

WDA 2021, 

, at *5 (Pa.Super. May 24, 2022) (unpublished


                                        -8-
J-S28019-22



memorandum). We find these decisions persuasive. The differences between

Rule 9025 and Rule 114 are not material to our decision here and do not

compel a different result. Both rules require a docket notation recording

service on each party and the date thereof. We therefore continue to follow

Jerman. Where the trial court docket in a criminal case does not indicate

service on a party or the date of service, we will not quash the appeal or

require further proceedings. Rather, we will treat the time in which to take an

appeal as never having started to run and treat the appeal as timely.

      Here, the trial court docket states that the order dismissing Midgley’s

petition was sent to prior PCRA counsel, even though by that point Midgley

was proceeding pro se. The docket contains no corresponding notation

recording service of the order upon Midgley (or the date of service). These

failings contravened Rule 114. We will therefore consider his appeal timely.

See Jerman, 

.

      We now turn to the substance of Midgley’s appeal. He raises the

following issues before this Court:

         I.     Whether the trial court erred when it dismissed
                [Midgley’s] petition for Post Conviction Relief when
                [Midgley] raised meritorious claims within his brief in
                support of his Post Conviction Relief petition.

         II.    Whether the trial court erred when it denied [Midgley]
                his right to proceed pro-se (unrepresented) by
                counsel when it ignored [Midgley’s] petition to
                proceed pro-se filed on June 14, 2021.

         III.   Whether the trial court erred when it appointed
                attorney Matthew Perry on September 14, 2021 to
                represent [Midgley] in his PCRA after [Midgley]

                                      -9-
J-S28019-22


               petitioned [the] court to proceed pro-se on June 14,
               2021.

         IV.   Whether the trial court erred when it did not respond
               to [Midgley’s] petition filed on November 1, 2021 to
               dismiss appointed counsel attorney Matthew Perry
               due to a conflict of interest.

         V.    Whether the trial court erred when it allowed
               appointed counsel for [Midgley] to file an untimely
               Turner/Finley letter on or about November 4, 2021
               when the trial court, on September 14, 2021, granted
               an order stating in it, that PCRA counsel was to file an
               amended petition or in the alternative, a
               Turner/Finley on or before October 15, 2021.

         VI.   Whether court appointed counsel attorney Matthew
               Perry was ineffective counsel due to the following
               reasons:

               a. For refusing to dismiss him self [sic] as [Midgley’s]
                  counsel as [Midgley’s] on or about October 20,
                  2021, during a phone conference, requested him
                  to do so, due to a conflict of interest and the fact
                  [Midgley]     wanted      to     proceed      pro-se
                  (unrepresented).

               b. For filing an untimely Turner/Finley letter.

               c. For failing to recognize meritorious claims within
                  [Midgley’s] case and or [Midgley’s] brief in support
                  of his claims for Post Conviction Relief filed on April
                  7, 2021.

Midgley’s Br. at 2-3.

      When reviewing the denial of PCRA relief, we consider whether “the

determination of the PCRA court is supported by the evidence of record and is

free of legal error. The PCRA court’s findings will not be disturbed unless there

is no support for the findings in the certified record.” Commonwealth v.

Larkin, 

, 355 (Pa.Super. 2020) (en banc) (citation omitted).


                                     - 10 -
J-S28019-22



      In his first issue, Midgley argues that the court erred in denying his PCRA

petition because he raised meritorious issues. He states that the court

incorrectly determined that the issues raised in his petition had been

previously litigated on direct appeal. He argues that none of his claims have

been raised previously.

      Rule 2119 of Pennsylvania Appellate Procedure requires that an

appellant’s brief identify the issue or issues to be reviewed by this Court,

followed by citations to legal authority supporting the claim. See Pa.R.A.P.

2119(a). Where the appellant fails to develop an issue or cite legal authority,

we will find waiver of that issue. See Commonwealth v. Williams, 

, 1258 (Pa.Super. 2008). However, we will not find waiver if the

appellant’s failure to provide citation to legal authority or develop an issue

does not impede “our ability to conduct meaningful appellate review[.]”

Commonwealth v. Hardy, 

, 771 (Pa.Super. 2012).

      Here, Midgley’s entire brief is devoid of any citation to legal authority.

However, Midgley’s failure to do so on this specific issue does not impede our

review. We therefore do not find his first issue waived.

      To be eligible for PCRA relief, the petitioner must plead and prove

several things, including “[t]hat the allegation of error has not been previously

litigated or waived.” 42 Pa.C.S.A. § 9544(a)(2). An issue is waived for

purposes of the PCRA “if the petitioner could have raised it but failed to do so

before trial, at trial, during unitary review, on appeal or in a prior state

postconviction proceeding.” 42 Pa.C.S.A. § 9544(b).

                                     - 11 -
J-S28019-22



      On direct appeal, Midgley argued that the Commonwealth violated the

plea agreement and the court erred in denying his request to withdraw his

guilty plea. In his PCRA petition, Midgley challenged his guilty plea and argued

that the terms of the plea “were not clear and unambiguous.” Brief in Support

of PCRA at 5. He also raised claims that his trial counsel was ineffective. He

argued counsel was ineffective for misinforming him of the terms of the plea

agreement, notably that the Commonwealth was not going to ask for “time”

on the crime of terroristic threats. Id. at 10. He maintained that counsel led

him to believe that the Commonwealth would recommend probation. Midgley

also claimed that counsel was ineffective for failing to withdraw his guilty plea,

failing to explain to the court his reasons for wanting to withdraw the plea,

refusing to withdraw as counsel, and not informing him that a deadly weapon

enhancement would apply. Id. at 20, 26, 29. He also claimed that counsel

failed to argue that Midgley was taken into custody without a warrant. The

PCRA court concluded that Midgley’s PCRA claims “were all addressed in his

direct appeal[.]” 1925(a) at 6.

      We agree that the court erred in determining that all Midgley’s claims

had been previously addressed in his direct appeal. Though Midgley’s PCRA

petition challenged his plea and sentence, it also raised claims of ineffective

assistance of counsel. To the extent that Midgley challenged counsel’s

effectiveness, such claims were not previously litigated. An ineffectiveness

claim is analytically separate from the underlying issue, and an ineffectiveness

claim pertaining to issues raised on direct appeal is not subject to dismissal

                                     - 12 -
J-S28019-22



as having been previously litigated. See Commonwealth v. Collins, 

, 573 (Pa. 2005) (“[I]neffectiveness claims are distinct from those

claims that are raised on direct appeal.”).

      Nonetheless, because Midgley’s ineffectiveness claims are meritless, we

affirm the dismissal of his petition.

      Counsel is presumed to be effective. See Commonwealth v.

Patterson, 

, 398 (Pa.Super. 2016). To overcome this

presumption, the petitioner must plead and prove: “(1) the underlying claim

is of arguable merit; (2) that counsel had no reasonable strategic basis for his

or her action or inaction; and (3) but for the errors and omissions of counsel,

there is a reasonable probability that the outcome of the proceedings would

have been different.” 

 (citation omitted). A failure to satisfy any

of the three prongs is fatal to the claim. See Commonwealth v. Meadows,

, 319 (Pa. 2001). “In the context of a plea, an ineffectiveness

may provide relief only if the alleged ineffectiveness caused an involuntary or

unknowing plea.” See Commonwealth v. Thomas, 

, 1226

(Pa. Super. 2022) (quoting Commonwealth v. Orlando, 

,

1281 (Pa. Super. 2017)).

      Midgley’s ineffectiveness claims regarding counsel’s alleged assurance

that the Commonwealth would not ask for prison time and instead would

recommend probation is meritless in light of Midgley’s plea colloquy. The court

specifically asked Midgley whether he understood “that there is no guarantee”

that probation would be imposed if he plead guilty. N.T., Guilty Plea Hearing,

                                        - 13 -
J-S28019-22



at 7. Midgley responded, “Yes.” Furthermore, that court explained that it was

not bound by any sentencing agreement. See id. at 6. Midgley replied that he

understood. Id. Therefore, Midgley’s claim of ineffective assistance of counsel

fails because the underlying claim lacks arguable merit. Meadows, 787 A.2d

at 319.

      Midgley also claimed that counsel was ineffective for failing to seek to

withdraw his guilty plea and for not telling the court Midgley’s reasons for

seeking to withdraw it. This claim also fails because the underlying claim lacks

arguable merit. Following the court’s imposition of sentence, counsel told the

court that Midgley wanted to file a motion to withdraw his plea. N.T.,

Sentencing, 4/26/19, at 15. The court stated that counsel could file a motion

and that it would address it at a separate hearing. Id. Counsel stated that he

would add it to his motion for reconsideration. Id. Counsel put such a request

in the motion for reconsideration. The motion stated that the Commonwealth

had violated the terms of the plea agreement by requesting a period of

incarceration and, as relief, asked that the court allow Midgley to be heard

regarding the imposed sentence or allow him to withdraw his plea. Petition for

Reconsideration of Sentence, filed 5/3/19, at ¶ 6. Though counsel did not file

a motion to withdraw Midgley’s guilty plea, he did ask to withdraw the plea in

the motion for reconsideration and gave the reasons for the withdrawal, i.e.,

that the Commonwealth had violated the plea agreement.

      Midgley also challenged counsel’s alleged refusal to withdraw as counsel

despite Midgley’s alleged request and counsel’s alleged failure to inform

                                     - 14 -
J-S28019-22



Midgley that the court would impose the deadly weapon enhancement. See

Brief in Support of PCRA at 20. Midgley supported his claim by including an

exhibit to his brief in support of his PCRA petition. See id. However, the exhibit

is not in the certified record. Although the clerks of courts are responsible for

maintaining and transmitting records in cases, it ultimately is the duty of the

appellant   to   ensure   that   the    certified   record   is   complete.   See

Commonwealth v. Preston, 

, 7 (Pa.Super.2006) (en banc). The

appellant’s failure to carry out that duty results in waiver of any claim for

which a needed item is absent from the certified record. See Commonwealth

v. Powell, 

, 423 (Pa. 2008). This claim is thus waived.

      As to the claim regarding the deadly weapon enhancement, Midgley

failed to show prejudice. Midgley demonstrated his understanding during the

plea colloquy that there was no agreement as to sentencing and that his

maximum total sentencing exposure was nine years. Because the court

imposed an aggregate sentence of four and a half to nine years, we cannot

say that his plea was unknowing or involuntary.

      Midgley’s final ineffectiveness claim dealt with counsel’s failure to argue

that police illegally took Midgley into custody without a warrant. This issue is

meritless. By pleading guilty, Midgley waived any procedural challenges

including any issues with the presentation of a warrant before his placement

into custody. See Commonwealth v. Jones, 

, 212 (Pa. 2007)

(“A plea of guilty constitutes a waiver of all nonjurisdictional defects and

defenses”) (citation omitted); Commonwealth v. Morrison, 

,

                                       - 15 -
J-S28019-22



290 (Pa.Super. 2017) (“a plea of guilty amounts to a waiver of all defects and

defenses except those concerning the jurisdiction of the court, the legality of

the sentence, and the validity of the guilty plea”). Trial counsel was not

ineffective for failing to raise the meritless issue. See Commonwealth v.

Spotz, 

, 1222 (Pa. 2006) (“counsel will not be deemed

ineffective for failing to raise a meritless claim”). As Midgley’s ineffectiveness

claims of ineffective assistance were all meritless, the court did not err in

dismissing the petition.

      Midgley’s second issue addresses the trial court’s denial of his request

to proceed pro se. Midgley maintains that he petitioned the court on June 14,

2021, to represent himself. See Midgley’s Br. at 19. He attached to his brief

a copy of the petition he claims he submitted. This copy is not included in the

certified record, and the copy attached to his brief does not contain a

timestamp of filing by the Lackawanna Clerk of Courts. This issue is waived.

      His third issue is waived for like reasons. Midgley claims that the trial

court erred in appointing PCRA counsel instead of granting his June 2021

petition to proceed pro se. Because the petition is not in the certified record,

this issue is waived.

      In his fourth issue, Midgley claims that the trial court erred in failing to

respond to his November petition to dismiss PCRA counsel. However, he fails

to provide any argument on this issue. See Midgley’s Br. at 19. As such, the

issue is waived. See Williams, 

. Furthermore, even if

Midgley had properly argued this issue, we would find the claim meritless.

                                     - 16 -
J-S28019-22



Though Midgley’s petition to remove counsel was dated November 1, it was

not filed until November 5. By that time the court had already permitted

counsel to withdraw. See Order, 11/4/21.

      Midgley’s next issue addresses whether the court erred in allowing PCRA

counsel to file an untimely Turner/Finley letter. He argues that the court

directed counsel to file the letter by October 20, 2021, and that counsel did

not file the letter until November 4, 2021. Midgley cites no legal authority that

supports that the court abused its discretion by accepting the filing later than

the date it had imposed. Nor does he cite or discuss any authority that would

entitle him to relief. This claim is waived. See Commonwealth v. Johnson,

, 924 (Pa. 2009).

      Midgley’s final issue is that PCRA counsel was ineffective. This issue has

three sub-parts. The first is that PCRA counsel was ineffective for failing to

withdraw due to an alleged conflict of interest. This issue fails because the

PCRA court in fact allowed PCRA counsel to withdraw and appointed new PCRA

counsel.

      The second sub-part is that PCRA counsel was allegedly ineffective for

filing an untimely Turner/Finley letter. As the court accepted the letter

despite its lateness, this claim is meritless. The third and final subpart is that

PCRA counsel was ineffective for failing to “recognize meritorious claims.”

Midgley’s Br. at 3. This also lacks merit. As noted above, many of Midgley’s

claims addressed his guilty plea. Counsel explained that the record established

that Midgley voluntarily, knowingly, and intelligently entered his guilty plea.

                                      - 17 -
J-S28019-22



He also noted that as to Midgley’s challenge to his sentence, this Court “upheld

the [t]rial [c]ourt’s above aggravated range sentence on the M-1 Terroristic

Threat conviction.” No Merit Letter at 3. Counsel also addressed Midgley’s

claim that there were errors in the PSI and found this to be meritless because

Midgley did not “specify the errors and claims that he did not review the pre-

sentence report but believes it does contain errors.” Id. at 4. The only issues

that counsel did not address were Midgley’s ineffectiveness claims. Having

determined that the ineffectiveness claims were meritless, see above, we

conclude PCRA counsel was not ineffective for failing to address these claims.

Spotz, 896 A.2d at 1222. We affirm the denial of Midgley’s PCRA petition.

      Order affirmed.

Judge Olson joins the Opinion.

Judge King concurs in the result.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/07/2023




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