Com. v. Francis, D. ( 2014 )

J-S33034-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DANIEL FRANCIS
Appellant No. 3135 EDA 2013
Appeal from the PCRA Order dated October 11, 2013
In the Court of Common Pleas of Northampton County
Criminal Division at No: CP-48-CR-0000245-2008
BEFORE: FORD ELLIOTT, P.J.E., OLSON, and STABILE, JJ.
MEMORANDUM BY STABILE, J.: FILED SEPTEMBER 22, 2014
Appellant Daniel Francis appeals from an order of the Court of
Common Pleas of Northampton County (PCRA court), which denied his
request for relief under the Post Conviction Relief Act (PCRA), 42 Pa.C.S.
§§ 9541-46. Upon review, we affirm.
The facts underlying this appeal are undisputed. As the PCRA court
recounted:
On December 18, 2007, the Bethlehem Police Department
charged [Appellant] with . . . felonious theft and fraud[.]
on was unknown at the time. Consequently,
about five (5) years passed before [Appellant] was arrested on
these charges. . . .
On September 13, 2012, [Appellant] entered a guilty plea
. . . to one (1) count of theft as a F3.[1] The [p]resentence
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1
In exchange for this plea, the Commonwealth withdrew the charges
against Appellant for theft by failure to make required disposition of funds
received (18 Pa.C.S. § 3927), receiving stolen property (18 Pa.C.S. § 3925),
(Footnote Continued Next Page)
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[i]nvesti
made a series of unverified representations to his Probation
Officer, Bernard Mikulski, and his appointed counsel, Joseph
Yannuzzi, Esquire. For example, the PSI indicated that
[Appellant] claimed to have acquired a Bachelor of Arts degree
from DeSales University and to have had a significant history of
employment with income of approximately $60,000 to $80,000
per year.
[Appellant] reiterated these assertions to [the PCRA court]
during his PCRA evidentiary hearing on July 12, 2013. However,
P.O. Mikulski testified that the Registrar at DeSales University
had no record of [Appellant]. In addition, neither P.O. Mikulski
nor Attorney Yannuzzi could verify the information regarding
history. The PSI also established that
[Appellant] had an extensive criminal history of fraud, theft, and
controlled substance charges spanning two decades and three
states.
The [trial court] sentenced [Appellant] to eighteen (18) to
thirty-six (36) months in state prison, followed by forty-eight
(48) months of probation. . . .
Thereafter, [Appellant] filed a timely pro se PCRA petition
his guilty plea and sentencing hearings. Specifically, [Appellant]
asserted that Attorney Yannuzzi was ineffective for failing to
assert a violation of his rights to a speedy trial pursuant to
Pa.R.Crim.P. 600.
The [PCRA court] appointed Robert Sletvold, Esquire, to
represent [Appellant] in this PCRA matter.
PCRA Court Opinion, 10/11/13, at 1-3 (footnote omitted). On December 19,
2013, the PCRA court issued an opinion in accordance with Pa.R.A.P.
claims.2 With regard to the issue of ineffective assistance of counsel at the
time of guilty plea, the PCRA court concluded:
_______________________
(Footnote Continued)
deceptive or fraudulent business practices (18 Pa.C.S. § 4107(a)(8)(iv)),
and misapplication of entrusted property and property of government or
financial institutions (18 Pa.C.S. § 4113(a)).
2
reference its October 11, 2013 opinion.
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[T]he record establishes that the [trial court] engaged in an
extensive colloquy[3] with [Appellant] during his guilty plea
hearing. The [trial court] asked [Appellant] whether he
understood that (a) this was a guilty plea proceeding; (b) he was
essentially convicting himself; (c) he had negotiated a guilty plea
on the felony theft charge in exchange for the Commonwealth
dropping other charges against him; (d) he was satisfied with
to go to trial; and (f) he elected to accept the negotiated plea
instead of going to trial. [Appellant] answered each question
affirmatively. [As a result,] the unequivocal nature of these
responses conclusively establish[] the knowing and voluntary
nature of his guilty plea.
Id. at 3-4. Addressing the ineffectiveness claim relating to Rule 600, the
PCRA court reasoned:
[T]he record establishes that Attorney Yannuzzi discussed the
possibility of pursuing a Rule 600 violation with [Appellant] prior
to the entry of his plea. Apparently, they decided to forgo this
course of action in favor of a potential mitigated sentence based
foreclosed this opportunity by failing to make any restitution
payments.
Id.
On appeal,4 Appellant repeats the arguments contained in his Rule
1925(b) statement. He argues that the PCRA court erred in determining
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3
It is unclear whether the PCRA court refers to the guilty plea hearing
transcript (oral colloquy) or the written colloquy contained in the original
record here.
4
Our review of a PCRA court order dismissing a petition under the PCRA is
subject to the following standard:
We review an order dismissing a petition under the PCRA in the
light most favorable to the prevailing party at the PCRA level.
This review is limited to the findings of the PCRA court and the
evidence of record.
is supported by evidence of record and is free of legal error.
the record supports it. We grant great deference to the factual
findings of the PCRA court and will not disturb those findings
unless they have no support in the record. However, we afford
(Footnote Continued Next Page)
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that his trial counsel was not ineffective for failing to raise a Rule 600
objection and advising Appellant to plead guilty.
As we have long noted:
It is well-settled that counsel is presumed effective, and to rebut
that presumption, the PCRA petitioner must demonstrate that
prejudiced him. Strickland v. Washington, 466 U.S. 668,
687 91[] (1984). This Court has described the Strickland
standard as tripartite by dividing the performance element into
two distinct components.
Commonwealth v. Pierce, [] 527 A.2d 973, 975 ([Pa.] 1987).
Accordingly, to prove trial counsel ineffective, the petitioner
must demonstrate that: (1) the underlying legal issue has
reasonable basis; and (3) the petitioner was prejudiced by
counsel's act or omission. Id.
Commonwealth v. Busanet, 54 A.3d 35, 45 (Pa. 2012); see also
Commonwealth v. Philistin
presumed effective, and [appellant] bears the burden of proving
Failure to prove any prong of [the Pierce] test will defeat an
ineffectiveness claim. Commonwealth v. Basemore, [] 744
A.2d 717, 738 n. 23 ([Pa.] 2000). Counsel cannot be deemed
ineffective for failing to raise a meritless claim.
Commonwealth v. Jones, [] 912 A.2d 268, 278 ([Pa.] 2006).
Additionally, we only inquire whether counsel had any
reasonable basis for his actions, not if counsel pursued the best
available option. [Commonwealth v.] Steele, [961 A.2d 786,]
797 [(Pa. 2008)].
_______________________
(Footnote Continued)
no such deference to its legal conclusions. Further, where the
petitioner raises questions of law, our standard of review is de
novo and our scope of review is plenary.
Commonwealth v. Rykard, 55 A.3d 1177, 1183 (Pa. Super. 2012)
(quotation and internal citations omitted), appeal denied, 64 A.3d 631 (Pa.
2013).
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Philistin, 53 A.3d at 10. Also, as our Supreme Court has explained:
With regard to the second, i.e.,
will conclude that counsel's chosen strategy lacked a reasonable
offered a potential for success substantially greater than the
[5]
course actually purs [Commonwealth v.] Cox, [983
A.2d 666,] 678 [(Pa. 2009)] (quoting Commonwealth v.
Williams, [] 899 A.2d 1060, 1064 (2006)). To establish the
third prong, Appellant must show that there is a reasonable
probability that the outcome of the proceedings would have been
Commonwealth
v. Dennis, [] 950 A.2d 945, 954 (2008).
Commonwealth v. Hutchinson, 25 A.3d 277, 285 (Pa. 2011).
that his trial counsel was ineffective for failing to raise a Rule 600 objection
to the complaint filed against him. Specifically, Appellant contends that
1732 days had passed between the filing of the complaint against him
(December 18, 2007) and his tendering of the guilty plea (September 13,
To begin our ineffectiveness of counsel analysis, we must determine
whether Appellant meets the first prong of the Pierce test i.e., arguable
merit by establishing a valid Rule 600 claim. Rule 600 provides that a
defendant on bail is entitled to have trial commence no later than 365 days
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5
strategy employed by trial counsel was so unreasonable that no competent
Commonwealth v.
Chmiel, 889 A.2d 501, 540-41 (Pa. 2005).
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after the complaint date. See Pa.R.Crim.P. 600(A)(3).6 When computing
the number of pretrial days attributable to the Commonwealth under this
rule, certain delays are excluded, such as those occasioned by defense
postponements, by express defense waivers of Rule 600, by the
unavailability of the defendant or defense counsel, and/or by the fact that
the defendant could not be located and apprehended. See Pa.R.Crim.P.
,
provided that the defendant could not be apprehended, because his or her
whereabouts were unknown and could not be determined by due
At any time prior to trial, a defendant may move for dismissal of the
case if Rule 600 has been violated. See Pa.R.Crim.P. 600(G). However,
even when the defendant has not been tried within 365 days, and even
when those days appear to be attributable to the Commonwealth, a Rule
600 motion shall nevertheless be denied if the Commonwealth proves that it
acted with due diligence in attempting to try the defendant timely and that
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6
We note that amendments to Rule 600 were adopted on October 1, 2012,
and came into effect on July 13, 2013. This proceeding, however, is
governed by the previous version of Rule 600, which was in effect prior to
July 13, 2013.
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control. See Commonwealth v. Frye, 909 A.2d 853, 858 (Pa. Super.
2006); see also Pa.R.Crim.P. 600(G).
Due diligence is a fact-specific concept to be determined on a case-by-
case basis. See Commonwealth v. Ramos, 936 A.2d 1097, 1102 (Pa.
Super. 2007). Although due diligence does not demand perfection, it does
require the Commonwealth to put forth a reasonable effort. See id. For
example, due diligence requires the Commonwealth to employ a record-
keeping system to keep track of its cases so that they are prosecuted within
the time requirements of the law. See Commonwealth v. Browne, 584
A.2d 902, 906 (Pa. 1990). The failure to employ a diary or other record-
keeping system shows a lack of due diligence. Id.
A meritorious Rule 600 motion would result in dismissal of the charges
against Appellant. See Pa.R.Crim.P. 600(G). Accordingly, prejudice will be
established upon a showing of a meritorious claim. See Commonwealth v.
Lynn, 815 A.2d 1053, 1056 (Pa. Super. 2003). We, therefore, must assess
if a Rule 600 motion would have been meritorious in order to determine if
trial counsel was ineffective for failing to file such a motion.
Our review of the docket reveals that the Bethlehem Police department
filed a complaint against Appellant on December 18, 2007. Appellant,
however, was not arrested until August 25, 2012. N.T., PRCA Hearing,
6/5/13, at 12-13. Appellant subsequently appeared at his arraignment
where he pleaded guilty to theft by unlawful taking (18 Pa.C.S.
§ 3921(a)(1)) on September 13, 2012. Disregarding for a moment the
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counsel for foregoing a Rule 600
objection, we note that if the time from the date of the complaint until
run date would be calculated as expiring on August 25, 2013, and Rule 600
would have been satisfied. If, however, the time from the complaint until
was not satisfied, and a Rule 600 motion may have been meritorious.
Ordinarily, upon the proper and timely filing of a Rule 600 motion, it
exercised in locating and apprehending Appellant during the time period
potentially excludable under Rule 600. The procedural posture of this case,
however, is such that Appellant, upon collateral review, is attempting to
demonstrate trial counsel was ineffective for failing to file a Rule 600 motion,
and thus, Appellant bears both the burdens of production and persuasion in
demonstrating that he was prejudiced by the failure of trial counsel to file a
Rule 600 motion. See Chmiel
see also Commonwealth v.
Natividad, 938 A.2d 310, 321-22 (Pa. 2007) (noting that an appellant bears
the burden of pleading and proving each of the Pierce prongs on appeal).
In his brief to this Court, Appellant reasons that his trial counsel was
from the date of the complaint being filed, December 18, 2007, through the
tendering of the guilty plea,
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Commonwealth offered no evidence whatsoever that a Rule 600 challenge
Id. As a result, Appellant argues that he was prejudiced by
b
Id.
As explained above, the burden of proof rests with an appellant when
he/she challenges a Rule 600 violation as part of his/her ineffectiveness of
counsel claim within a PCRA context. Here, Appellant does not develop an
argument in his brief sufficient to suggest that the Commonwealth failed to
exercise due diligence in locating and apprehending him. In fact, our review
of the record, including the PCRA hearing transcript, indicates that Appellant
failed to adduce evidence as to why the Commonwealth failed to try him
within 365 of days of the filing of the complaint. Thus, we cannot conclude
from the evidence of record that the Commonwealth failed to exercise due
diligence in apprehending Appellant after the filing of the complaint. We,
therefore, conclude that Appellant has failed to show the arguable-merit
prong of his claim that his trial counsel was ineffective for failing to file a
Rule 600 motion. See Philistin, 53 A.3d at 10 (Failure to prove any prong
of [the Pierce] test will defeat an ineffectiveness claim).
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Appellant next argues that the PCRA court erred in concluding that his
trial counsel was not ineffective for advising him to plead guilty to theft.7
convince [him] to plead guilty with an expected deal of time served [(90
that
litigating a meritorious constitutional violation would keep [Appellant] in jail
11. Consequently, Appellant argues, that his guilty plea was not valid and
that he should be permitted to withdraw the same to have his pretrial and
trial rights reinstated.
counsel extends to the plea process, as well as during trial.
However, allegations of ineffectiveness in connection with the
entry of a guilty plea will serve as a basis for relief only if the
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7
To the extent Appellant argues that his trial counsel was ineffective for
failing to move to withdraw the ple
became clear that the expected sentence was not that which would be
because Appellant failed to raise it in his 1925(b) statement or in the
question presented section of his brief. See Pa.R.A.P. 1925(b)(4) and
2116(a). Nonetheless, even if the issue was not waived, we still would
dismiss it as lacking merit. It is settled that a trial court should grant a pre-
sentence request to withdraw a
unless granting the motion would substantially prejudice the
Commonwealth. Commonwealth v. Forbes, 299 A.2d 268, 271 (Pa.
1973). Here, Appellant has failed to not only cite to any authority in support
of his argument, but also has failed develop any argument in his brief
indicating that his guilty plea could have been withdrawn upon a fair and
just reason and without substantial prejudice to the Commonwealth. See
Pa.R.A.P. 2119(a); Commonwealth v. Charleston, __ A.3d __, 2014 WL
25575752014, at *7 (Pa. Super. June 6, 2014).
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ineffectiveness caused the defendant to enter an involuntary or
unknowing plea. Where the defendant enters his plea on the
advice of counsel, the voluntariness of the plea depends on
demanded of attorneys in criminal cases. The law does not
require that the defendant be pleased with the outcome of his
decision to enter a plea of guilty: All that is required is that [his]
decision to plead guilty be knowingly, voluntarily, and
intelligently made. Moreover, with regard to the prejudice
prong, where an appellant has entered a guilty plea, the
appellant must demonstrate it is reasonably probable that, but
for counsel
have gone to trial.
Commonwealth v. Timchak, 69 A.3d 765, 769-70 (Pa. Super. 2013)
(internal citation and quotation marks omitted).
We determine first whether Appellant meets the second prong of the
Pierce test, i.e., whether his trial counsel had any reasonable basis for his
actions. In this regard, we observe that insofar as Appellant argues his trial
counsel assured him a prison sentence of 90 days, we disagree. At the
PCRA hearing, his trial counsel specifically testified:
no question he was going to be able to come up with that
money. . . . That was the course. [Appellant] was going to
plead, come up with the money, we were going to come back for
sentencing, and it was going be a done deal. However in the
meantime, the PSI comes back with thirteen, fourteen
convictions, a prior record score of five. Every piece of
information [Appellant] gave me, from his education, his
employment, was all contradicted in the PSI.
N.T. PCRA, 6/5/13, at 51-
to forgo [pursuing a Rule 600 violation] in favor of a potential mitigated
[Appellant] foreclosed this opportunity by failing to make any restitution
-3. Given these facts of
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rendered effective assistance because he had a reasonable basis for
recommending the guilty plea with the possibility of a 90-day sentence
resentations regarding his ability to pay restitution
to his victims.8 Accordingly, because Appellant fails to meet the second
Pierce prong, we need not determine whether his underlying claim had any
arguable merit.9
Nonetheless, if we were to determine the substance of his claim, that
is whether his plea of guilty was valid, we would conclude that it is devoid of
any arguable merit. To be valid, a plea must be voluntary, knowing, and
intelligent. Commonwealth v. Persinger, 615 A.2d 1305, 1307 (Pa.
1992). To ensure these requirements are met, Rule 590 of the Pennsylvania
Rules of Criminal Procedure requires that a trial court conduct a separate
inquiry of the defendant before accepting a guilty plea. It first requires that
a guilty plea be offered in open court. The rule then provides a procedure to
determine whether the plea is voluntarily, knowingly, and intelligently
____________________________________________
8
represented to him that pleading guilty would result in a shorter sentence
than litigating constitutional issues. Tellingly, Appellant does not identify in
his brief any constitutional issues he allegedly forfeited by pleading guilty.
9
We observe that Appellant does not assert any facts to establish that an
alternative not chosen by his trial counsel offered a potential for success
substantially greater than the course actually pursued.
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entered. As the Comment to Rule 590 provides, at a minimum, the PCRA
court should ask questions to elicit the following information:
(1) Does the defendant understand the nature of the charges to
which he or she is pleading guilty or nolo contendere?
(2) Is there a factual basis for the plea?
(3) Does the defendant understand that he or she has the right
to trial by jury?
(4) Does the defendant understand that he or she is presumed
innocent until found guilty?
(5) Is the defendant aware of the permissible range or sentences
and/or fines for the offenses charged?
(6) Is the defendant aware that the judge is not bound by the
terms of any plea agreement tendered unless the judge accepts
such agreement?
Pa.R.Crim.P. 590, Comment.10 In Yeomans, this Court explained:
In order for a guilty plea to be constitutionally valid, the guilty
plea colloquy must affirmatively show that the defendant
understood what the plea connoted and its consequences. This
determination is to be made by examining the totality of the
circumstances surrounding the entry of the plea. Thus, even
though there is an omission or defect in the guilty plea colloquy,
a plea of guilty will not be deemed invalid if the circumstances
surrounding the entry of the plea disclose that the defendant had
a full understanding of the nature and consequences of his plea
and that he knowingly and voluntarily decided to enter the plea.
Commonwealth. v. Yeomans, 24 A.3d 1044, 1047 (Pa. Super. 2011)
(citing Commonwealth v. Fluharty, 632 A.2d 312, 314-15 (Pa. Super.
1993)).
The longstanding rule of Pennsylvania law is that a defendant
may not challenge his guilty plea by asserting that he lied while
under oath, even if he avers that counsel induced the lies. A
person who elects to plead guilty is bound by the statements he
makes in open court while under oath and may not later assert
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10
The Comment also includes a seventh question, which is applicable only
when a defendant pleads guilty to murder generally.
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grounds for withdrawing the plea which contradict the
statements he made at his plea colloquy. . . . [A] defendant who
elects to plead guilty has a duty to answer questions truthfully.
Yeomans, 24 A.3d at 1047 (emphasis added).
In this regard, our review of the written and oral colloquy does not
reveal any grounds for challenging the validity of the guilty plea. The
written plea colloquy provides in pertinent parts:
7. Are you now being treated for a mental illness? No.
....
9. Have you ever had any physical or mental illness that would
affect your ability to understand your rights or affect the
voluntary nature of your plea? No.
10. Are you presently taking any medications or drugs which
might affect your thinking or free will? No.
11. Have you had any narcotics or alcohol in the last forty-eight
(48) hours? No.
12. Have you read the information? Yes.
13. Do you understand that you are here today to enter a plea
of guilty to some or all of the charges which led to your arrest?
Yes.
14. Do you understand the nature of the charges to which your
pleading guilty? Yes.
15. Each crime has a number of elements or things that the
Commonwealth would have to prove at trial. Has your attorney
explained to you each element of the crimes or crimes to which
you are pleading guilty? Yes.
....
17. Do you understand that under the United States
Constitution and the Constitution of the Commonwealth of
Pennsylvania, you have an absolute right to trial by jury? Yes.
18. Do you understand that the right to trial by jury means you
are able to participate in the selection of a jury with your
attorney? Yes.
....
22. In a jury trial, the jury must presume that you are innocent
until proven guilty. The Commonwealth must prove you are
guilty of each element of the crime or crimes charged against
you beyond a reasonable doubt before you can be found guilty.
A reasonable doubt is a doubt that would cause an ordinary and
reasonable person to hesitate before going through with
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something important to him. Do you understand these things?
Yes.
....
24. Do you understand that by pleading guilty, you give up your
right to a trial, either by jury or before a judge? Yes.
....
27. (a) I have been told the maximum range of the sentences
and/or fines that can be imposed for each offense to which I am
pleading guilty are as follows: [Theft 7 years maximum
sentence and $10,000 fine].
(b) I have reviewed the Sentencing Guideline Form
attached hereto.
28. Are you aware that the Court is not bound by the terms of
any plea agreement entered between you, your counsel and the
attorney for the Commonwealth until the Court accepts such a
plea agreement? Yes.
....
32. Do you understand that even after your guilty plea is
accepted by the Court, you will have the right to file a motion to
withdraw your guilty plea at any time prior to sentencing? Yes.
....
37. Has anybody forced you by any means to enter the plea of
guilty? No.
38. Are you doing this of your own free will? Yes.
39. Are you pleading guilty only because you gave an oral or
written statement to the police? No.
40. Have any threats been made to you to enter a plea of
guilty? No.
41. Have any promises been made to you to enter a plea of
guilty other than any plea agreement that been negotiated for
you by yourself or your attorney? No.
42. Are you satisfied with the representation of your attorney?
Yes.
43. Have you had sufficient time to consult with your attorney
before reading this statement and entering your plea of guilty?
Yes.
44. Has your attorney reviewed with you the possible defenses
to these charges and the witnesses you might call on your
behalf? Yes.
45. Have you asked your attorney to do anything for you in
connection with the charges or your defense that he has not
done? No.
....
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49. Do you understand that, if your plea is accepted, you have
the right to have a Pre-Sentence Report prepared on your behalf
to aid the Judge in determining the appropriate sentence to be
imposed upon you? Yes.
....
53. Do you understand that the decision to enter a guilty plea is
yours and your alone; that you do not have to enter a plea of
guilty and give up all your rights as previously explained to you;
and that no one can force you to enter a guilty plea? Yes.
Guilty Plea Statement, 9/13/12 (emphasis in original). Additionally, the plea
hearing transcript reveals:
[The trial court]: Do you understand that this proceeding here,
this is a guilty plea proceeding. Do you understand?
[Appellant]: Yes.
ely convicting yourself of
theft, a felony of the third degree. Do you understand that?
[Appellant]: Yes.
your own behalf through your lawyer here, because you do not
want the Commonwealth to convene the Court or the jury to
prove every one of these charges against you. Is that correct?
[Appellant]: Yes.
[The trial court]: Okay. Are you satisfied that [your trial
counsel] has provided to you a management plan for this case
which is proper and effective in your mind?
[Appellant]: For the most part, yes.
[The trial court]: Well, you do have a right, nobody can force
you to plead guilty. You do have a right to go to trial on this
matter on all of these charges, and to compel a jury to convict
you unanimously of committing these offenses. Do you
understand that?
[Appellant]: Yes.
[The trial court]: All right. By offering a guilty plea and asking
o to trial on all of these charges, I want to
negotiate so that I can accept responsibility, put this matter
behind me.
[Appellant]: Yes, Your Honor.
....
[The trial court]: Okay. Well, some things we can and cannot
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because the standard range of sentence, it calls for incarceration
at the earliest possible moment . . . and I will give you credit for
going to accept his guilty plea. And I am not going to sentence
.I
am going to order a Presentence Investigation in this matter.
Return him to the Northampton County Prison. And I am going
to direct you to contact his employer to determine whether or
not they are willing to keep him employed at NSF at his present
s
the sentencing or prior to the time that the Presentence
Investigation is completed. But otherwise, I am going to fix
sentencing in this matter for thirty days from now.
....
However, I have a sentencing guideline range that I am required
to follow, which has a bottom of three months and a maximum
of fourteen months.
....
tell you very seriously right now, if you were in a position to pay
this restitution to these victims, that would be very material to
me in crafting a sentence which would permit you to go back to
going to order a Presentence Investigati
think about this, and [your trial counsel] is going to see me in
the next few days and tell me about whether or not the
restitution component of this case can be satisfied. That is,
whether these citizens can recover the money that you took
from them. Do you understand?
[Appellant]: All? I mean, a payment plan, absolutely, they can
get it.
[The trial court]: Payment plans I am not interested in. I am
not interested in more promises. If I have to make a payment
plan, it is going to be accompanied by a prison sentence and a
long period of probation, during which you will make regular
payments. And if you miss one, then I have other powers. But
[Your trial counsel] is saying, would I consider a mitigated-range
sentence, which would mean that I would not incarcerate you.
these victims. Do you understand that?
[Appellant]: Ah-ha.
[The trial court]: I am not willing to take a chance on you. I am
not willing to use the authority of the Court to mitigate a
sentence unless I have a good reason to do so. And the reason
to do so, as far as I am concerned, is that the victims get paid.
Do you understand that?
[Appellant]: Ah-ha.
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[The trial court]: Okay.
N.T. Plea, 9/13/12, at 11-19 (emphasis added).11
Here, the record indicates that the written plea agreement and oral
colloquy conformed to Rule 590 and that Appellant entered into the
agreement voluntarily, knowingly and intelligently. Most important, the
record also indicates Appellant was satisfied wi
representation at the time he pleaded guilty. Moreover, as the PCRA court
found, the PSI revealed Appellant had made certain unverified
representations, including his ability to compensate the victims of his theft,
which in turn compelled the trial court to order the instant sentence of 18 to
Opinion, 1/11/13, at 1-3. As the transcript of the plea hearing indicates
Appellant should have expected, at a minimum, this sentence. During the
plea hearing, the trial court explicitly informed Appellant that it would
consider only a mitigated sentence if the PSI confirmed
compensate his victims. Further, the trial court admonished Appellant that
in the event he was unable to pay the victims, he would face a prison
sentence and probation. Again, Appellant seemingly agreed to these terms.
We, therefore, would conclude that his guilty plea was valid.
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11
The plea transcript also indicates that Appellant agreed with the
admitted to keeping money that his friends had given him to purchase real
estate. See N.T. Plea, 9/13/12, at 3-5.
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For the reasons set forth above, we conclude that the trial court did
not err in denying Appellant PCRA relief on his ineffectiveness claims.
Order affirmed.
President Judge Emeritus Ford Elliott joins the memorandum.
Judge Olson concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/22/2014
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