Com. v. Hernandez Rivera, N.

J-S26012-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee
v.
NELSON HERNANDEZ RIVERA
Appellant No. 346 MDA 2021
Appeal from the PCRA Order entered March 2, 2021
In the Court of Common Pleas of Luzerne County
Criminal Division at No.: CP-40-CR-0002098-2017
BEFORE: STABILE, J., MURRAY, J., and MUSMANNO, J.
MEMORANDUM BY STABILE, J.: FILED: JANUARY 21, 2022
Appellant, Nelson Hernandez Rivera, appeals pro se from the March 2,
2021 order entered in the Court of Common Pleas of Luzerne County
dismissing his first petition for collateral relief filed pursuant to the Post
Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. Upon review,
we affirm.
The PCRA court summarized the background of the instant appeal as
follows.
On October 29, 2018, [Appellant] pled guilty to criminal attempt
to commit criminal homicide. [Appellant] caused life-threatening
injuries to a woman by stabbing her multiple times in the chest.
He discontinued his attack after being shot by a security guard.
Sentencing took place on January 4, 2019. A sentence of 216 to
480 months was imposed. This sentence was within the
standard range of the sentencing guidelines and [Appellant]
received credit for serving 645 days of incarceration prior to
J-S26012-21
sentencing. [Appellant]’s post-sentence motion was denied by
order dated May 2, 2019. A notice of appeal was filed twenty-
seven days later. In an opinion filed on December 3, 2019, [our
Court] affirmed [Appellant]’s judgment of sentence.
A pro se motion for post-conviction collateral relief was filed by
[Appellant] on July 9, 2020. After receiving [Appellant]’s
motion, an order was issued on November 16, 2020, which
appointed conflict counsel to represent him. On January 13,
2021, appointed counsel submitted a no-merit letter and filed a
motion to withdraw as counsel. In the letter and motion,
appointed counsel indicated that he reviewed the file,
communicated with [Appellant] and determined that [Appellant]
had no PCRA claim and his petition had no merit.
Following a review of [Appellant]’s motion, appointed counsel’s
no merit letter, motion to withdraw and an independent review
of the record established in this case, an order was issued
granting appointed counsel’s request to withdraw. A Notice of
Intention to Dismiss Motion for Post Conviction Collateral Relief
pursuant to Pa.R.Crim.P. 907 was filed on February 3, 2021.
Although [Appellant] was served with a copy of the Notice of
Intention to Dismiss, he did not respond. Because [Appellant]’s
PCRA [petition] had no merit, it was dismissed on March 2,
2021. On March 16, 2021, a Notice of Appeal[,] which was
dated March 1, 2021, and appears to be signed by [Appellant],
was filed. The notice of appeal does not include a statement
that the order appealed from had been entered on the docket
and no date is provided for the order resulting in the appeal.
A Rule 1925(a) opinion was filed on May 11, 2021. This opinion
recommended that the appeal be quashed due to [Appellant]’s
failure to comply with Pa.R.A.P. 301(a)(1) and Pa.R.A.P. 904(d).
On October 22, 2021, [our Court] filed a non-precedential
decision which remanded the case for the filing of a
supplemental Rule 1925(a) opinion. In the decision, [we]
determined that [Appellant] was appealing the order dated
March 2, 2021 even though the notice of appeal filed by
[Appellant] was dated March 1, 2021[,] which was prior to the
existence of the March 2 order and several days before
[Appellant] would have received the March 2 order by certified
mail.
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J-S26012-21
The March 2, 2021 order dismissed the [petition] for post-
conviction collateral relief filed by [Appellant] on July 9, 2020.
In his July 9 [petition], Appellant raised two issues.
[Appellant]’s first issue was based on the ineffective assistance
of counsel for failing to challenge the legality of sentence where
the sentence imposed is beyond the statutory maximum in
violation of the Sixth and Fourteenth Amendments of the Federal
Constitution and Article I Section 9 of the Pennsylvania
Constitution.
....
The second claim made by [Appellant] in his [petition] for post-
conviction collateral relief is that he suffered a miscarriage of
justice due to the imposition of a sentence beyond the statutory
maximum in violation of the Sixth and Fourteenth Amendments
of the Federal Constitution and Article I Section 9 of the
Pennsylvania Constitution. This allegation appears to be filed
pursuant to 42 Pa.C.S.A. Section 9543(a)(2)(vii) in that the
sentence imposed was greater than the lawful maximum.
Trial Court Supplemental Opinion, 11/18/21, at 1-2, 4.
“[A]n appellate court reviews the PCRA court’s findings of fact to
determine whether they are supported by the record, and reviews its
conclusions of law to determine whether they are free from legal error.”
Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014) (citation omitted).
In addressing ineffective assistance of counsel claims, we are guided
by the following authorities:
[A] PCRA petitioner will be granted relief [for ineffective
assistance of counsel] only when he proves, by a preponderance
of the evidence, that his conviction or sentence resulted from the
“[i]neffective assistance of counsel which, in the circumstances
of the particular case, so undermined the truth-determining
process that no reliable adjudication of guilt or innocence could
have taken place.” 42 Pa.C.S. § 9543(a)(2)(ii). “Counsel is
presumed effective, and to rebut that presumption, the PCRA
petitioner must demonstrate that counsel’s performance was
-3-
J-S26012-21
deficient and that such deficiency prejudiced him.”
Commonwealth v. Colavita, 993 A.2d 874, 886 (Pa. 2010)
(citing Strickland v. Washington, 466 U.S. 668, 687 (1984)).
In Pennsylvania, we have refined the Strickland performance
and prejudice test into a three-part inquiry. See
Commonwealth v. Pierce, 786 A.2d 203, 213 (Pa. 2001).
Thus, to prove counsel ineffective, the petitioner must show
that: (1) his underlying claim is of arguable merit; (2) counsel
had no reasonable basis for his action or inaction; and (3) the
petitioner suffered actual prejudice as a result.
Commonwealth v. Ali, 10 A.3d 282, 291 (Pa. 2010).
Spotz, 84 A.3d at 311-12 (citations modified).
A review of the record shows that the underlying claim (i.e., sentence
imposed is illegal because it is beyond the statutory maximum) is of no
merit. Appellant was convicted of attempted murder resulting in serious
bodily injury. The statutory maximum sentence for attempted homicide with
serious bodily injury is 40 years. See 18 Pa.C.S.A. § 1102(c). Appellant’s
sentence of 216 months to 480 months, therefore, does not exceed the
statutory maximum. See also PCRA Opinion, 11/18/21, at 4.
Because Appellant’s underlying claim has no arguable merit, we do not
need to address the other ineffective assistance prongs. See, e.g.,
Commonwealth v. Ly, 980 A.2d 61, 74 (2009) (“A failure to satisfy any of
the three prongs of the [Commonwealth v. Pierce, 527 A.2d 973 (1987)]
test requires rejection of a claim of ineffective assistance of trial counsel).
Accordingly, no relief is due to Appellant on his ineffective assistance of
counsel claim.
Appellant next raises the very same claim, i.e., sentence imposed is
illegal because it is beyond the statutory maximum, as a challenge under 42
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J-S26012-21
Pa.C.S.A. § 9543(a)(2)(vii), which permits a claim under the PCRA that “the
imposition of a sentence [was] greater than the lawful maximum.” As noted
above, however, the sentence imposed here was not greater than the lawful
maximum. Accordingly, the instant claim does not fare any better than the
previous one.
On appeal, Appellant raises additional claims of ineffective assistance
of counsel,1 which were raised on appeal for the first time.2 See PCRA Court
Opinion, 11/18/21, at 4-5. As such, they are waived. See Pa.R.A.P. 302(a).
To the extent these additional issues are not waived, the PCRA court
properly addressed them in its November 18, 2021 opinion. See PCRA
Court Opinion, 11/18/21, at 5-7. Briefly, the PCRA court found that none of
the additional claims had arguable merit, resulting, therefore, in Appellant’s
failure to meet the standard for proving ineffective assistance of counsel.
We agree with the PCRA court’s assessment of the additional ineffective
assistance of counsel claims. Accordingly, we direct that a copy of the PCRA
____________________________________________
1 We construe Appellant’s claims as arguing that trial counsel was ineffective
for letting him plead guilty despite language issues, that direct appeal
counsel was ineffective for not challenging the validity of his plea, and that
PCRA counsel was ineffective for failing to challenge the effectiveness of trial
counsel and direct appeal counsel. Appellant’s Brief at 3-8.
2 Compare Appellant’s PCRA Petition, 7/9/20, at 6, with Appellant’s concise
statement of matters complained of on appeal, dated 5/27/21, but not filed
in the trial court, and Appellant’s Brief at 3-8.
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J-S26012-21
court’s November 18, 2021 opinion be attached to any future filings in this
case.
Order affirmed.
This decision was reached prior to the retirement of Judge Musmanno.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/21/2022
-6-
Circulated 12/30/2021 12:13
12-13 PM
COMMONWEALTH OF PENNSYLVANIA ::IN THE COURT OF COMMON PLEAS
OF LUZERNE COUNTY
vs.
VS. CRIMINAL
CRIMINAL DIVISION
DIVISION
NELSON HERNANDEZ RIVERA N0: 2098 OF 2017
NO:
O"ER
ORDER
AND NOW, this 18
lWh day IT IS
day of November, 2021, IT IS HEREBY
HEREBY ORDERED that the
attached Supplemental
Supplemental Opinion
Opinion dated November 18,2021
18, 2021 i's
is entered pursuant to Pa.R.A.P.
1925(a)(1).
1925(a)(1).
IT IS FURTHER ORDERED that the Luzerne County
County Clerk of Courts is
ORDERED and DIRECTED to immediately transmit the above record to the Superior
Court of Pennsylvania.
The Clerk of Court shall promptly serve a
a copy of this Order on each:party's
each party's
attorney, or the party, if unrepresented, pursuant to
attomey, to Pa.R.Crim.P.114.
Pa.R.Crim.P. 114.
BY THE COURT:
ll7Uh V
MICHAEL T. VOUGH,
MICHAEL T. VOUGH, P.J P.J.
Copies To:
Copies OF CARTS
CLERK (F
(ERK CC1URTS CRIMIJML
CRIMINAL
Lz
WZ CNi YN0UIVIAMME
(ii7ji018218+91f
Luzerne
Luzeme County District Attomey's
Attorney's Office
Nelson Hernandez
Hermandez Rivera (Inmate N:
No: NS1530)
NS 1530)
SCI Forest
Forest--PO Box 307
286 Woodland Drive
Marienville, PA 16239
- ... /, .,
COMMONWEALTH
COMMON WEALTH OF PENNSYLVANIA IN THE
:IN THE COURT OF COMMON PLEAS
OF LUZERNE COUNTY
OF
vs.
VS. CRIMINAL DIVISION
DIVISION
NELSON
NELSON HERNANDEZ
HERNANDEZ RIVERA NO:
NO: 2098 OF
OF 2017
SUPPLEMENTAL OPINION
SUPPLEMENTAL. OPINION PURSUANT TO RULE 1925(a)(1)
PURSUANT TO 1925/a)/1
CLERK OF
L.ERK Or RTE
COUR i
-c CF; NIINA:
GR2MN
BY THE HONORABLE MICHAEL T
T. VOUGH, UIZ CNTY
LA2 KN118'21AH31
CNTW DUIS'2LB3:I
On October 29,2018,
29, 2018, Defendant, Nelson Hernandez Rivera, pled guilty to criminal attempt
to commit criminal homicide. Defendant caused life-threatening injuries to a
a woman by stabbing
her multiple
multiple times in the chest. He discontinued his attack after being shot by aasecurity guard.
Sentencing took place
Sentencing place on January
January 4, 2019. A
A sentence of 216 to
to 480 months was imposed
imposed.
This sentence was within the standard range
range of the sentencing guidelines
guidelines and Defendant received
credit for serving
serving 645 days
days of incarceration prior
prior to sentencing.
sentencing. Defendant's post-sentence motion
was denied by
was by order dated May 2, 2019.
dated May 2019. A
A notice
notice of
of appeal
appeal was liled twenty-seven
was filed twenty-seven days later.
later. In
an opinion
opinion filed on December 3, 2019, the Superior Count
Court of Pennsylvania affirmed the Defendant's
judgment
judgment of sentence.
of sentence
A pro se motion for post-conviction
A pro post-conviction collateral relief was filed by Defendant on July 9, 2020.
Amer
After receiving
receiving Defendant's motion, an order was issued on November 16, 2020 which appointed
conflict counsel to represent
represent him.
him. On January 13, 2021, appointed counsel submitted aano-merit
letter and filed aamotion to withdraw as counsel. In the letter and motion, appointed counsel
indicated that
that he
he reviewed
reviewed the file, communicated with
with Defendant
Defendant and determined that
that Defendant
had no PCRA claim and his petition had no merit.
merit
Following
Following a
a review of Defendant's motion, appointed
appointed counsel's no merit letter, motion to
withdraw and an independent
independent review of the record established in this case, an order was issued
granting appointed counsel's request to
to withdraw. A
ANotice of Intention to Dismiss Motion for Post
Conviction Collateral Relief pursuant to Pa.R.Crim.P.
Pa.R.Crim.P, 907 was filed on February
February 3, 2021.
Although Defendant was served with aacopy of the
the Notice of Intention to Dismiss, he did
not respond.
not respond. Because
Because Defendant's PCRA
PCRA motion had no merit,
merit, it was dismissed on March 2, 2021.
On March 16, 2021, aaNotice of Appeal which was dated March 1, 2021, and appears to be signed
by Defendant, was
was,filed. The notice of appeal does not include a
a statement that the
the order appealed
from had been
from had been entered
entered on the docket
on the docket and no date
and no is provided
date is provided for
for the
the order
order resulting
resulting in the appeal.
in the appeal.
A
A Rule
Rule 1925(a)
1925(a) opinion
opinion was
was filed
filed on May 11,
I1, 2021.
2021. This
This opinion
opinion recommended that the
the
appeal
appeal be gnashed
quashed due to Defendant's failure
failure to comply with Pa.RA.P. 30l(a)(1)
301(a0l) and Pa.R.A.P.
October 22, 2021, The Superior Court of Pennsylvania
904(d). On October Pennsylvania filed aanon
nonprecedential
precedential decision
which remanded the case for the filing of a
a supplemental
supplemental Rule 1925(a) opinion. In the decision, the
the
Superior Court determined that Defendant was
was appealing the order dated March 2, 2021
2021 even
though
though the notice of appeal filed by Defendant was dated March 1, 2021 which was prior to the
1,2021
existence of the March 22order and several days before Defendant would have received the March 22
order by
by certified mail.
The March 2, 2021 order dismissed the
the motion for post-conviction
post-conviction collateral relief filed by
Defendant on July
July 9, 2020. In his July 9
9motion, Defendant raised two issues. Defendant's first
issue was based on the ineffective assistance of counsel for failing to challenge the
the legality of
'
sentence where the sentence imposed is beyond the statutory maximum in violation of the
the Sixth and
Fourteenth Amendments of the Federal Constitution and Article I
I Section 99of the Pennsylvania
Constitution.
be eligible
To be eligible for relief under Section 9543(a)02)ii)
9543(a)(2)(R) of the Post Conviction Relief Act, aa
Petitioner must plead
plead and prove by aapreponderance of the evidence that "ineffective assistance
of counsel which, in the circumstances of the particular case,
cas', so undermined
undermincd the truth-
determining process
determining process that no reliable
that no reliable adjudication
adjudication of guilt or
of guilt or'sinnocence could have
innocence could have taken
taken place."
place."
Commonwealth v.
y, Hickman, 799 A.2d 136,
136,140
140 n.2 (Pa.Super.
(Pa.Super. 2002) quoting 42 Pa.C.S.A.
PA.C.S.A.
9543(a)(2)(ii). There is aapresumption that counsel is effective. Commonwealth
Section 9543(a)2ii). Commonwealth v.
Cross, 634
Cross, 634 A.2d
A.24 173,
173, 175 (Pa, 1993)
175 (Pa. 1993) citing
citing Commonwealth v.
, Pierce,
Pierce, 527
527 A.2d
A.24 973, 975 (Pa.
973,975 (Pa.
1987). Defendant bears the burden of proving counsel's ineffectiveness and that burden does not
Cross, 634 A.2d at 175 citing Commonwealth v.
shift. Cross, y, Jones, 471 A.2d
A.24 879 (Pa.
(Pa. 1984).
For aaDefendant to prevail
prevail on an ineffectiveness claim, he must satisfy aathree-prong est
test
and demonstrate
demonstrate that; "(1) his
that: "(I) his underlying
underlying claim is of (2) the
of arguable merit; (2) the particular course
course of
conduct pursued
pursued by
by counsel did
did not have reasonable basis designed
have some reasonable designed to
to effectuate
effectuate his
interests; (3) but
interests; and (3) but for counsel's ineffectiveness, there is aareasonability probability that the
outcome
outcome of
of the
the proceedings
proceedings would
would have been different." Commonwealth v.
v. Ali, 10
10 A.3d 282,
291 (Pa,
(Pa. 2010) citing Commonwealth v.
2010) citing (Michael) Pierce, 786 A.2d 203, 213 (Pa. 2001);
, (Michael
Commonwealth
Commonwealth v. Kimball, 724 AN
A.2d 326, 333 (Pa. 1999). "A failure to satisfy any prong of the
ineffectiveness test requires rejection of the claim of ineffectiveness." Commonwealth v.
requires rejection v
Daniels,
Daniels, 963 A.2d 409,
963 A.2 409, 419 (Pa.
(Pa. 2009) citing Commonwealth v.
citing Commonwealth • Sneed,
Sneed, 899 A.2d
A.24 1067,1076
1067, 1076
(Pa. 2006),
(a. 2006). With regard
regard to counsel not having aareasonable
reasonable' basis for his action, his approach
must be "so unreasonable that no competent lawyer would have chosen it." Commonwealth v•
must v,
Ervin, 766 A.2d 859,
Ervin, 859, 862-63 (Pa
(Pa.Super-
Super. 2000) quoting Commonwealth y.
v. Miller, 431 A.2d 233,
234 (Pa.
(Pa. 1981).
1981). Finally,
Finally, trial counsel cannot be deemed ineffective for •failing to pursue a
a
meritless claim. Commonwealth v.
, Loner.
Loner, 836 A.2d 125, 132 (Pa.Super. 2003).
On appeal, Defendant
On direct appeal, Defendant raised
raised an
an issue
issue regarding
regarding his sentence
sentence which was
was within
within the
standard range the sentencing
range of the sentencing guidelines. The Superior Court of Pennsylvania affirmed the
I
judgment
judgment of sentence in a
a non-precedential decision filed
fled on December 3, 2019. A
A defendant
cannot obtain post
post conviction review of aaclaim previously
previously litigated on direct appeal.
Coron
Commonwealth
wealth v.
v, Brown, 872 A.2d 1139,1144-45 (Pa. 2005). A
1139, 1144-45 (Pa. A defendant is also unable to
obtain post
post conviction review
review of claims previously
previously litigated
litigated on appeal
appeal by presenting new
new theories
theories of
of
relief to support
support the previously
previously lit
litigated Id. at 1145
igated claims. [d. 1145 citing y,
citing Commonwealth
Commonwealth v.Stokes,
Stokes, 839
A.2d 226, 229 (Pa. 2003). Defendant pled
pled guilty to criminal attempt to
to commit criminal homicide.
The statutory maximum sentence for attempted homicide with serious bodily injury is 40 years. 18
Pa.C.S.A. section 1102(c).
Pa.C.s.A. 1102(¢). Defendant's
Defendant's sentence of
of 216
216 months
months to
to 480
480 months does
does not exceed the
the
statutory maximum.
The second claim made by
by Defendant in his motion for post-conviction collateral relief is .
that he suffered aamiscarriage
miscarriage ofjustice due to the impositions of a
imposition-of a sentence beyond
beyond the statutory
•
maximum in violation of the
the Sixth and Fourteenth Amendments
,Amendments of the Federal Constitution and
Article IISection 99of the
the Pennsylvania
Pennsylvania Constitution.
Constitution. This allegation
allegation appears to
to be
be filed
filed pursuant
pursuant to
to
42 Pa.C.S.A. 9543(a)(2)(vii) in that the sentence imposed was greater than the lawful
Pa.CS.A. Section 9543(a)2(vii)
maximum.
previously indicated, the Defendant was sentenced to 216 months to 480 months. This
As previously
sentence did not exceed the statutory maximum. Both issues raised by Defendant in his motion for
post-conviction
post-conviction collateral relief had no merit whatsoever. The
The March 2, 2021 order dismissing the
motion filed by Defendant on July 9,
9, 2020 should be
be affirmed.
affirmed.
•
As
As noted by
by the Superior Court in its
the Superior its October 22, 2021 decision, Defendant raised several
issues in
in his appellate
appellate brief. These issues were the ineffectiveness of trial counsel for allowing him
plead guilty in spite of an alleged language barrier, that direct appeal counsel was ineffective for
to plead
failing
failing to challenge
challenge the validity
validity of his guilty plea, and that PCRA counsel was ineffective for failing
to allege
allege the ineffectiveness of trial and direct appeal counsel by not
not challenging the validity of his
guilty
guilty plea.
plea. None
None of these issues
of these issues were ever raised
were ever raised before
before this Court.
this Court. i
"Claims not raised in the trial court may not be raised for the first time on appeal."
Commonwealth
Commonwealth v. Johnson, 33 A.3d 122,126
v, Johnson, 122, 126 (Pa.Super. 2011)
201 1) citing Commonwealth
Commonwealth v.
y. Rush, 959
945 7949 (a.Super.
A.2d 945, (Pa.Super. 2008). "Issues not raised in the lower court are waived and cannot be
raised for the first time on appeal."
appeal." Pa,R.A.P. 302(x). '
Pa.R.A.P. 302(a). In his motion for post conviction collateral
relief,
relief, Defendant only
only raised issues regarding
regarding the statutory m,``Wmum
maximum sentence. None of the issues
set forth
set forth by
by Defendant
Defendant in
in his appellate
appellate brief were raised
raised in
in the
the lower court. Defendant's
Defendant's issues
regarding
regarding the ineffectiveness of trial counsel and direct appeal counsel are waived. Defendant's
regarding the
issue regarding the ineffectiveness of PCRA counsel was able to be raised on appeal. See
to be
Commonwealth v,
Commonwealth v. Bradley, .A.3d_,2021
A.3d ,2021 WL 4877232 (Pa.
(Pa. 2021). Regardless of the waiver
issue,
issue, all
all issues raised
raised by
by Defendant on
on appeal
appeal will be
be addressed in
in accordance with.the
with the Superior
Superior
Court's directive.
the time of Defendant's
At the Defendant's guilty
guilty plea
plea and sentencingy
sentencing he
he was
was represented by
by private
private
interpreter was used at
counsel. An interpreter at both proceedings.
proceedings. At no
no'-time
time did Defendant indicate that he
was
was unable
unable to
to communicate with
with counsel due to
to aalanguage barrier.
barrier. During
During his
his guilty
guilty plea,
plea,
Defendant
Defendant testified
testified that
that he
he understood
understood the
the terms and conditions of
of the
the plea
plea agreement.
agreement. N.T.
N.T.
10/19/18
10/19/18 at 5., He
at 5. also stated
He also stated that
that the
the plea agreement had
plea agreement been fully
had been fully explained to him
explained to and he
him and had no
he had no
questions regarding
questions regarding what he was pleading
pleading guilty to. Id. at 5-6. Defendant never gave this court
court any
reason to believe
reason to believe that he had any difficulty discussing
any difficulty discussing the entry of
of aaguilty plea
plea with
with counsel.
counsel. In
fact, representation. M.
faet, Defendant indicated that he was satisfied with his lawyer's representation: Id. at 8. Had
Defendant raised an ineffectiveness claim with this court regarding counsel allowing him to plead
guilty
guilty despite
despite an alleged language
an alleged language barrier, it would
would have been. denied.
have been denied
I
••
i
A
A valid guilty plea must be knowingly, voluntarily and intelligently entered.
Commonwealth v. y.
v, Rush, 909 A.2d 805, 808 (Pa.Super. 2006) citing Commonwealth
Commonwealth Pollard,
v..Pollard,
832 AN
A.2d 517, 522 (Pa.Super. 2003). An on-the-record colloquy must be conducted to ascertain
whether aadefendant is aware of his rights and
and the consequences of his plea. Commonwealth v.
v
Hodizes,
Hodges, 789 A.2d
A.24 764, 765 (Pa.Super.
(Pa.Super. 2002). Pursuant to Pa.R.Crim.P. 590, a
a court should
that a
determine that adefendant understands:
(1) the nature of the charges toto which he is pleading
•leading guilty; (2) the
factual basis for the plea; (3) his right to trial by jury; (4) the presumption
innocence;(5)
of innocence; (5) the permissible ranges ofo£ sentences and fines possible;
and (6)
(6) that the court is not bound by the terms of the agreement unless the
court accepts the agreement.
Commonwealth v,
Commonwealth v. Kelley,
Kelley, 136 A.3d 1007,
136 A.34 1007,.1013
1013 (Pa.Super.
(Pa Super. 2016) citing Commonwealth_v.O,
2016) citing Commonwealth v. G.
Watson, 835 A.2d
A.24 786 (Pa.Super. 2003).
"The
The law
law does not require
require that the defendant be
be pleased with the outcome of his decision
to enter aaplea of guilty: All that is required is that his decision to plead guilty be knowingly,
voluntarily,
voluntarily, and intelligently
intelligently made." Commonwealth v.
v, Anderson,
Anderon, 995 A.2d 1184, 1192 .
(Pa.Super. 2010).
(Pa.Super. 2010). When aadefendant makes statements under oath at the guilty plea
plea. colloquy, he
I4
'is
is bound by
by those statements and may not assert grounds f6i
for withdrawing the plea which
y,v. Timchak, 69 A.3d
contradict the statements. Commonwealth
Commonwealth
'
765, 774 (Pa.Super. 2013)
A.34765, 2013).
Prior to accepting
accepting Defendant's guilty plea on October 29, 2018, this Court conducted an
'
on-the-record colloquy
colloquy to ascertain whether the plea was knowingly, voluntarily and intelligently
v.
entered and if Defendant was aware of this rights and the consequences of his plea.
Commonwealth v.Hodges,
Hodges, 789 A.2d 764, 765 (Pa.Super. 2002). A
made as to Defendant'
Defendant'ssunderstanding of
of-
A determination was also
(1)
(1) the nature of the charges to which he is pleading guilty;
guilty; (2) the
factual'basis
factual basis for the plea; (3)
(3) his right to
to trial by jury; (4) the
the presumption
4
$
of innocence; (5) the permissible ranges
ranges of sentences and fines possible;
possible;
and (6)
(6) that the court is not bound by
by the terms of the agreement
agreement unless the
court accepts the agreement.
Commonwealth v. Kellev, 136
v. Kelley, A.3d 1007, 1013 (Pa.Super;
136 A.34 Commonwealth v.
(Pa.Super!,2016) citing Commonwealth v.G,
Car.
Watson, 835 A.2d
A2d 786 (Pa.Super. 2003). See also Pa.R.Crim,P. 590. Defendant was made
Pa.R.Crim.P. 590,
aware of and
and understood
understood the criteria
criteria provided
provided in
in the
the comment
comment to Rule
Rule 590
590 before entering
entering his
his
guilty plea.
plea.
Defendant
Defendant responded appropriately to
to the
the questions
questions asked
asked of
of him
him during his
his guilty plea
plea
colloquy. He exhibited no confusion and never requested
colloquy. requested to
to withdraw his plea. He admitted that
he committed the offense of criminal attempt to commit criminal
criminal homicide. N.T. 10/29/18 at
homicide. NT, at 6.
6.
Before Defendant's sentence was imposed, he took the opportunity to address this court.
. :
Defendant N.T. 1/4/19 at 14. He also apologized and
Defendant admitted that he attacked the victim. NT,
expressed Td.
expressed remorse. ,[d.
appeal counsel nor trial counsel had
Neither direct appeal had.any
any reason to challenge the validity of
Defendant's guilty
guilty plea,
plea. Counsel cannot be
be deemed ineffective for failing to pursue aameritless
claim.
claim. Loner, supra
supra.
Defendant was sentenced within the standard range of the sentencing guidelines and his
sentence
sentence did
did not
not exceed
exceed the statutory
statutory maximum.
maximum. He was provided with
He was with an
an interpreter
interpreter at
at the time
of
of his
his guilty
guilty plea
plea and sentencing.
sentencing. Defendant never exhibited any confusion in connection with
with
I
the legal
legal proceedings
proceedings held before this court. He never indicated that he had any difficulty
'
communicating guilty plea
communicating with his counsel. His guilty plea was
was knowingly,
knowingly, voluntarily
voluntarily and intelligently
intelligently
entered after aathorough colloquy was completed. The March 2,
thorough colloquy 2, 2021 order dismissing the
motion for post-conviction collateral relief should be affirmed.
•
BY
BY THE
THE COURT:
COURT:
DATE: November
November 18, 2021
18, 2021
c4el,
MICHAEL .VOUGII, P.J.