Com. v. Drayton, R.

J-S60038-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RONALD DRAYTON :
:
Appellant : No. 191 MDA 2019
Appeal from the PCRA Order Entered January 29, 2019
In the Court of Common Pleas of Luzerne County Criminal Division at
No(s): CP-40-CR-0004335-2015
BEFORE: SHOGAN, J., STABILE, J., and PELLEGRINI, J.*
MEMORANDUM BY SHOGAN, J.: FILED SEPTEMBER 11, 2020
Appellant, Ronald Drayton, appeals from the order denying his petition
filed under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546.
We affirm.
The PCRA court summarized the factual and procedural history of this
matter as follows:
On February 12, 2016, the Luzerne County District Attorney
filed an eight count Criminal Information, charging [Appellant]
with violating 18 Pa.C.S.A. § 6105(a)(1), Persons not to possess,
use, manufacture, control, sell or transfer firearms (Count 1); 18
Pa.C.S.A. § 6106(a)(1), Firearms not to be carried without a
license (Count 2); and 18 Pa.C.S.A. § 2705, Recklessly
endangering another person [“REAP”] (Counts 3-8). These
charges stem from a July 10, 2015 incident at the Passion Lounge
in Wilkes-Barre, Pennsylvania. On May 5, 2017, [Appellant]
signed a Guilty Plea Agreement and Colloquy, indicating that it
was his intention to plead guilty to Count 2, Firearms not to be
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* Retired Senior Judge assigned to the Superior Court.
J-S60038-19
carried without a license. The signed plea agreement set forth
that the Commonwealth agreed to withdraw the remaining counts,
and that it would not oppose [Appellant’s] request that any term
of incarceration be served concurrently with the sentence imposed
on [Appellant] by the U.S. District Court in the Middle District of
Pennsylvania in the case of United States of America v. Ronal[d]
Drayton, 3:14-CR-00305-EMK-4. Agreement signed 5-5-17[,] at
2. Additionally, the signed agreement acknowledged that the
sentencing court is not bound by any term as to [the] sentence
contained in the agreement, and that [Appellant] had not been
guaranteed a specific sentence. Id. at 3.
A hearing was conducted on May 5, 2017, at which time
[Appellant] confirmed he intended to plead guilty to Count 2. N.T.
5/5/17, at 3. Prior to the [c]ourt’s acceptance of the guilty plea,
[Appellant] was subject to a verbal guilty plea colloquy. Id.
During the colloquy, [Appellant] confirmed to the [c]ourt that he
and his attorney discussed and reviewed his desire to plead guilty,
and that [Appellant] had reviewed and signed the written Guilty
Plea Agreement and Colloquy. Id. at 4. Following the [c]ourt’s
acceptance of [Appellant’s] guilty plea, he was sentenced to a
standard range sentence of 24 to 48 months’ incarceration to be
served concurrently with the federal sentence. Id. at 19-20.
[Appellant] was advised by this [c]ourt of his post-sentence rights
before the hearing concluded. Id. at 24-25.
No post-sentence motion or direct appeal was filed. On May
20, 2018, [Appellant] filed a pro se Motion for Post Conviction
Collateral Relief alleging that his trial counsel rendered ineffective
assistance with regard to [Appellant’s] guilty plea. PCRA counsel
was appointed to represent [Appellant], and a supplemental PCRA
petition was filed on December 11, 2018. A PCRA hearing was
held on January 29, 2019. The crux of [Appellant’s] argument is
that he agreed to plead guilty to Count 2 of the [eight] Count
Information because his counsel erroneously indicated to him that
if the [c]ourt ran his state sentence concurrently with the federal
sentence, [Appellant] would serve the entirety of the state
sentence in a federal facility. Contrary to [Appellant’s]
expectations, however, he is scheduled to be paroled on his
federal sentence on November 1, 2019, prior to reaching the
maximum term of his state sentence. N.T. 1/29/19 at 10.
[Appellant’s] request for post-conviction relief was denied at
the conclusion of the PCRA hearing, and [Appellant] filed a
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counseled timely Notice of Appeal on January 30, 2019. PCRA
counsel was permitted to withdraw, and appellate counsel was
appointed to represent [Appellant]. Through appellate counsel,
[Appellant] filed a timely Pa.R.A.P. 1925(b) statement of errors
complained of on appeal on March 21, 2019.
PCRA Court Opinion, 5/24/19, at 1-3. This panel filed a memorandum in this
matter on January 2, 2020. On January 9, 2020, the Commonwealth filed an
application for reconsideration, which this panel granted on February 28,
2020. After additional review, this case is now ripe for disposition.
Appellant presents the following issues for our review:
I. Whether defense counsel was ineffective at the time of
[Appellant’s] guilty plea in that he incorrectly advised [Appellant]
that if the court sentenced [Appellant] to a concurrent term with
his federal sentence he would not have to serve any time in state
prison under the sentence in the above captioned case.
II. Whether [Appellant’s] guilty plea was knowing and voluntary
in that he incorrectly, based on counsel’s advice, believed that he
would not serve any time in state prison on the above-captioned
sentence.
Appellant’s Brief at 3 (full capitalization omitted).
Initially, we observe that Appellant’s brief does not comply with
Pa.R.A.P. 2119, which provides, in pertinent part, as follows:
(a) General rule. The argument shall be divided into as
many parts as there are questions to be argued; and shall
have at the head of each part--in distinctive type or in type
distinctively displayed--the particular point treated therein,
followed by such discussion and citation of authorities as are
deemed pertinent.
Pa.R.A.P. 2119(a) (emphasis added). The argument portion of Appellant’s
brief is not divided into as many parts as there are questions to be argued
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because the argument portion is one part, yet Appellant lists two issues in his
statement of the questions presented. Appellant has combined each of the
points raised to now argue that the PCRA court erred in failing to find that
defense counsel was ineffective in offering advice at the time of the guilty
plea, which rendered the plea involuntary. Appellant’s Brief at 11-18.
Likewise, we will address Appellant’s claims in a single discussion.
When reviewing the propriety of an order denying PCRA relief, we
consider the record “in the light most favorable to the prevailing party at the
PCRA level.” Commonwealth v. Stultz, 114 A.3d 865, 872 (Pa. Super.
2015) (quoting Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super. 2014)
(en banc)). This Court is limited to determining whether the evidence of
record supports the conclusions of the PCRA court and whether the ruling is
free of legal error. Commonwealth v. Robinson, 139 A.3d 178, 185 (Pa.
2016). We grant great deference to the PCRA court’s findings that are
supported in the record and will not disturb them unless they have no support
in the certified record. Commonwealth v. Rigg, 84 A.3d 1080, 1084 (Pa.
Super. 2014).
Our Supreme Court has long stated that in order to succeed on a claim
of ineffective assistance of counsel, an appellant must demonstrate that (1)
the underlying claim is of arguable merit; (2) counsel’s performance lacked a
reasonable basis; and (3) the ineffectiveness of counsel caused the appellant
prejudice. Commonwealth v. Pierce, 786 A.2d 203, 213 (Pa. 2001). It is
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presumed that the petitioner’s counsel was effective, unless the petitioner
proves otherwise. Commonwealth v. Williams, 732 A.2d 1167, 1177 (Pa.
1999). Furthermore, claims of ineffective assistance of counsel are not self-
proving. Commonwealth v. Wharton, 811 A.2d 978, 986 (Pa. 2002).
It is clear that a criminal defendant’s right to effective counsel extends
to the plea process, as well as during trial. Commonwealth v. Allen, 833
A.2d 800, 802 (Pa. Super. 2003) (citing Commonwealth v. Hickman, 799
A.2d 136, 141 (Pa. Super. 2002)). However:
allegations of ineffectiveness in connection with the entry of a
guilty plea will serve as a basis for relief only if the 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 whether counsel’s advice
‘was within the range of competence demanded of attorneys in
criminal cases.’”
Allen, 833 A.2d at 802 (quoting Hickman). Our law does not require that a
defendant be totally pleased with the outcome of his decision to plead guilty,
only that his decision be voluntary, knowing, and intelligent.
Commonwealth v. Baldwin, 760 A.2d 883, 885 (Pa. Super. 2000).
In Commonwealth v. McCauley, 797 A.2d 920 (Pa. Super. 2001), we
explained that
[o]nce a defendant has entered a plea of guilty, it is
presumed that he was aware of what he was doing,
and the burden of proving involuntariness is upon
him. Therefore, where the record clearly
demonstrates that a guilty plea colloquy was
conducted, during which it became evident that the
defendant understood the nature of the charges
against him, the voluntariness of the plea is
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established. A defendant is bound by the statements
he makes during his plea colloquy, and may not assert
grounds for withdrawing the plea that contradict
statements made when he pled.
Commonwealth v. Stork, 737 A.2d 789, 790-791 (Pa. Super.
1999), appeal denied, 564 Pa. 709, 764 A.2d 1068 (2000)
(citations and quotations omitted). Determining whether a
defendant understood the connotations of his plea and its
consequences requires an examination of the totality of the
circumstances surrounding the plea. [Commonwealth v. Yager,
685 A.2d 1000 (Pa. Super. 1996)].
In order to determine the voluntariness of the plea
and whether the defendant acted knowingly and
intelligently, the trial court must, at a minimum,
inquire into the following six areas:
(1) Does the defendant understand the
nature of the charges to which he is
pleading guilty?
(2) Is there a factual basis for the plea?
(3) Does the defendant understand that
he has a right to trial by jury?
(4) Does the defendant understand that
he is presumed innocent until he is found
guilty?
(5) Is the defendant aware of the
permissible ranges of 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?
Commonwealth v. Young, 695 A.2d 414, 417 (Pa. Super.
1997).
McCauley, 797 A.2d at 922.
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This Court consistently stated that “even if there is an omission or defect
in the guilty plea colloquy, the guilty plea will not be deemed invalid if the
circumstances surrounding the entry of the plea reveal that the defendant fully
understood the nature and consequences of his ... plea and that he ...
knowingly and voluntarily decided to plead guilty.” Commonwealth v.
Blackwell, 647 A.2d 915, 921-922 (Pa. Super. 1994) (citing
Commonwealth v. Fluharty, 632 A.2d 312 (Pa. Super. 1993)). A defendant
may knowingly and voluntarily plead guilty as a matter of strategy or
expedience even though he is unable or unwilling to admit guilt regarding the
crimes charged. Id. at 922. Thus, the court’s inquiry should focus on whether
the appellant understood what he was doing by specifically looking at the plea
colloquy to determine whether he understood the plea. Id.
The PCRA court addressed Appellant’s claim of ineffective assistance of
counsel with the following cogent analysis in its opinion filed pursuant to
Pa.R.A.P. 1925(a):
A thorough review of the record in the instant matter
supports the [PCRA c]ourt’s conclusion that [Appellant] failed to
show that counsel’s stewardship resulted in an unknowing,
involuntary or unintelligent plea. [Appellant] was extensively
questioned at the May 5, 2017 guilty plea hearing to ensure the
soundness of his decision. Further, the validity of his responses,
as well as his review and comprehension of the signed written
guilty plea colloquy, was confirmed at the January 29, 2019 PCRA
hearing.
[Appellant] claims that based on counsel’s advice, he agreed
to plead guilty and to request that his state sentence run
concurrently to his federal sentence, so that he could serve the
entirety of the state sentence in the federal facility. As the record
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clearly shows, however, prior to the [c]ourt’s acceptance of
[Appellant’s] guilty plea, [Appellant] was fully informed that the
[c]ourt was not bound by any agreements reached by the parties
regarding sentencing, but could instead impose any sentence it
saw fit, and that the [c]ourt could not guarantee that [Appellant]
would serve his state sentence entirely in a federal facility. N.T.
5/5/17, at 6-8; N.T. 1/29/19 at 13-14. Guilty Plea Agreement and
Colloquy of Defendant signed 5/5/17 at 2-3. Thus[, Appellant]
was clearly informed that whatever assumptions he and counsel
had made regarding the sentence did not bind the [c]ourt, and
would not necessarily come to pass. After being so informed and
acknowledging receipt of that information, [Appellant]
nevertheless chose to go forward with the plea process. As such,
he cannot now claim that his counsel’s stewardship led to his entry
into a guilty plea that was not knowing, voluntary and intelligent.
PCRA Court Opinion, 5/24/19, at 4-5.
Our review of the record belies Appellant’s assertion that he was induced
by ineffective defense counsel to enter his plea involuntarily. The following
portion of the oral guilty plea colloquy informs our conclusion:
[THE COURT]: Has anyone promised you anything to plead guilty
other than your plea agreement?
[APPELLANT]: Yes.
[THE COURT]: Okay. What other promises were made to you
other than your plea agreement? Is somebody promising you
something to get [you to] plead guilty today, or are you pleading
of your own free will?
[APPELLANT]: Well, I was promised a certain sentence with
respect to my plea, yes.
[THE COURT]: Okay.
THE COURT: What is the sentence --
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[ASSISTANT ATTORNEY GENERAL]: Judge, he may
be referencing Subparagraph 4[B][1] of the guilty plea
agreement in which the Commonwealth has agreed
not to oppose [Appellant’s] request to serve any
sentence imposed by this [c]ourt concurrently with
the sentence he’s currently serving in Federal Court.
THE COURT: Okay. Is that what you’re referring to,
a concurrent sentence?
[APPELLANT]: Yes. For the most part, yes.
THE COURT: Okay. You said for the most part. Are
there any other promises that were made to get you
to plead guilty today?
[APPELLANT]: Aside from the concurrent sentence,
the fact that I wouldn’t serve any time in a state
penitentiary.
THE COURT: I’m not sure that – is that agreed to?
[ASSISTANT ATTORNEY GENERAL]: Not by the
Commonwealth, Your Honor.
N.T., 5/5/17, at 6-8 (emphasis added). This exchange among Appellant, the
trial court, and the assistant attorney general establishes that Appellant was
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1 The written guilty-plea agreement and colloquy contain the following term
and condition at Subparagraph 4(B):
B. The Commonwealth will not oppose [Appellant’s] request to
the sentencing court that any term of incarceration be served
concurrently with the sentence of incarceration imposed upon
[Appellant] by the United States District Court for the Middle
District of Pennsylvania in the case of United States of America v.
Ronald Drayton, 3:14-CR-00305-EMK-4.
Guilty Plea Agreement and Colloquy, 5/5/17, at 2, ¶4(B) (emphases in
original).
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informed that the Commonwealth was not agreeing with Appellant’s
suggestion that he would not serve any time in a state prison. Accordingly,
we conclude that, prior to entry of his plea, Appellant was aware that there
was no promise that he would not serve a portion of his sentence in state
prison.
Moreover, the written guilty-plea colloquy contains the following
acknowledgement, which further restrains Appellant’s argument that he
entered his guilty plea in anticipation of any particular sentence:
8. THE SENTENCING COURT IS NOT BOUND BY ANY TERM AS TO
SENTENCE CONTAINED IN THIS AGREEMENT. I acknowledge that
any terms related to a sentence set forth in paragraph 4 above
are not binding on the [c]ourt and I have not been guaranteed a
specific sentence in exchange for this plea. The [c]ourt retains
the power to decide my sentence.
Guilty Plea Agreement and Colloquy, 5/5/17, at 3, ¶8 (capitalization in
original).
Hence, the certified record reflects Appellant was informed at the guilty
plea hearing that the Commonwealth did not agree with Appellant’s
understanding that he would serve his sentence only in federal prison. In
addition, the signed written colloquy acknowledges that Appellant was not
guaranteed a specific sentence in exchange for his guilty plea. Consequently,
there is no support for the assertion that Appellant’s guilty plea was based
upon trial counsel’s promise of a particular sentence being served in a
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particular prison.2 Therefore, there is no merit to the underlying claim that
trial counsel was ineffective in advising Appellant to enter the guilty plea.3
Again, the law does not require that Appellant be completely satisfied with the
outcome of his decision to plead guilty. Baldwin, 760 A.2d at 885. The law
only requires that a plea be voluntary, knowing, and intelligent. Id.Thus, after examining the totality of circumstances surrounding the
entry of the plea, we conclude that Appellant had a full understanding of the
nature and consequences of his plea and that he knowingly and voluntarily
decided to enter the plea. Accordingly, he has failed to demonstrate that the
underlying claim is of arguable merit.
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2 The dissent contends that “Appellant was repeatedly told by counsel that
[the state sentence would run while the federal sentence was being served]
as an automatic consequence of [Appellant’s] plea. Dissenting Memorandum
at 7. However, there is no evidence of record that counsel “repeatedly” gave
such advice prior to the entry of the plea. Moreover, establishing this
allegation is hindered by the reality that Appellant failed to call plea counsel
as a witness at the PCRA hearing. Therefore, in order to support its
conclusion, the dissent is left to rely on portions of the transcript that occurred
after the entry of Appellant’s guilty plea and during the time of sentencing.
3 With regard to whether Appellant entered his plea voluntarily on the advice
of counsel that “was within the range of competence demanded of attorneys
in criminal cases,” we observe that there was confusion among plea counsel,
the Assistant Attorney General, and the trial court regarding Appellant’s
sentence. N.T., 5/5/17, at 8, 21-24. For example, the trial court stated, “The
24 months [minimum state sentence], all of this is going to run out; and
[Appellant is] still going to be in jail on his federal sentence.” Id. at 24. This
confusion by the various entities present at the plea hearing suggests that
plea counsel’s advice was not outside of the range of competence demanded
of attorneys in criminal cases. Allen, 833 A.2d at 802.
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We also address the second and third prongs of the ineffectiveness test,
i.e., whether counsel’s action or inaction lacked a reasonable basis designed
to effectuate Appellant’s interest and whether Appellant suffered prejudice.4
With regard to the second prong, we have reiterated that trial counsel’s
approach must be “so unreasonable that no competent lawyer would have
chosen it.” Commonwealth v. Ervin, 766 A.2d 859, 862-863 (Pa. Super.
2000). Again, where a defendant enters his plea on the advice of counsel,
“the voluntariness of the plea depends on whether counsel’s advice ‘was within
the range of competence demanded of attorneys in criminal cases.’” Allen,
833 A.2d at 802.
As the United States Supreme Court explained in Strickland v.
Washington, 466 U.S. 668 (1984), counsel’s strategic decisions must be
examined in light of the known facts and what prevailing professional norms
required at the time of the plea.
[A] court deciding an actual ineffectiveness claim must
judge the reasonableness of counsel's challenged conduct on the
facts of the particular case, viewed as of the time of counsel's
conduct. A convicted defendant making a claim of ineffective
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4 We note that a “failure to satisfy any prong of the ineffectiveness test
requires rejection of the claim of ineffectiveness.” Commonwealth v.
Daniels, 963 A.2d 409, 419 (Pa. 2009) (citing Commonwealth v. Sneed,
899 A.2d 1067 (Pa. 2006)). Therefore, in light of the fact that Appellant failed
to prove the first prong of the ineffectiveness test, we need not address the
remaining two prongs. However, we observe that in its application for
reargument, the Commonwealth specifically focused on the prejudice prong
of the ineffectiveness test. Application for Reargument, 1/9/20, at 5-9.
Accordingly, out of an abundance of caution, we will address the second and
third prongs of the ineffectiveness test in this Memorandum.
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assistance must identify the acts or omissions of counsel that are
alleged not to have been the result of reasonable professional
judgment. The court must then determine whether, in light of all
the circumstances, the identified acts or omissions were outside
the wide range of professionally competent assistance. In making
that determination, the court should keep in mind that counsel’s
function, as elaborated in prevailing professional norms, is to
make the adversarial testing process work in the particular case.
Id. at 690.
As previously indicated, Appellant failed to present plea counsel as a
witness at his PCRA hearing. Our review of the record reveals no indication
as to why counsel was not called as a witness. This hampers our review
because Appellant has relied upon a letter from counsel, dated seven months
before the entry of the guilty plea as support for the allegation that plea
counsel repeatedly misrepresented where Appellant would be serving his
sentence.5 Hence, any advice or representations by counsel during the period
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5 The complete text of the body of the letter in question is as follows:
Enclosed is a copy of the fingerprint analysis and handgun
analysis that was provided to me by the Attorney General’s office.
Also, I was able to get your dispositional hearing moved to
November. Hopefully, you will be sentenced by then and we can
proceed with the state case and put this behind you. I got
Barney Anderson to agree to give you less time in your
state case than your federal so that you will never serve
any time in a state prison nor ever be on state parole.
Wishing you all the best with the federal case and I’m sure
you’ll be happy to put this all behind you and move forward with
your life.
Letter, 10/5/16, at 1 (emphasis added).
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between the letter and the guilty plea hearing are strikingly missing from the
record due to the fact that Appellant failed to present counsel as a witness.
As we previously stated, claims of ineffective assistance of counsel are not
self-proving. Wharton, 811 A.2d at 986. Hence, we conclude that Appellant
has failed to meet this prong of the ineffectiveness test.
Last, we address the prejudice prong. We are mindful that prejudice
requires proof that there is a reasonable probability that, but for counsel’s
error, the outcome of the proceeding would have been different. Pierce, 786
A.2d at 213. In Commonwealth v. Mallory, 941 A.2d 686 (Pa. 2008), our
Supreme Court explained that, where a claim of ineffective assistance involves
the waiver of a constitutional right at the plea stage of the proceedings, the
petitioner does not have to demonstrate that the outcome of a jury trial would
have been more favorable than the course chosen. Id. at 703. Rather, as
the Court in Mallory observed, “[The Hill v. Lockhart, 474 U.S. 52 (1985)]
Court focused on the outcome of the guilty plea proceeding and did not require
the defendant to demonstrate that but for counsel’s error, he would not have
pled guilty and would have achieved a better outcome at trial.” Mallory, 941
A.2d at 703 (emphasis in original). Rather, the term “result of the
proceedings” refers to “the result of the trial stage where the alleged
ineffectiveness took place, and not necessarily the ultimate verdict.” Id.
Likewise, we have stated the following:
[T]o establish prejudice, the defendant must show that there is a
reasonable probability that, but for counsel’s errors, he would not
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have pleaded guilty and would have insisted on going to trial. This
is not a stringent requirement. The reasonable probability test
refers to a probability sufficient to undermine confidence in the
outcome.
Commonwealth v. Brown, ___ A.3d ___, 2020 PA Super 169, at *8-9 (Pa.
Super. filed July 14, 2020) (quoting Commonwealth v. Velazquez, 216 A.3d
1146, 1149-1150 (Pa. Super. 2019)) (quotation marks and citations omitted).
“Reasonable probability” is established when a petitioner shows that he “would
have opted to go to trial rather than plead guilty had he been given legally
sound advice.” Commonwealth v. Barndt, 74 A.3d 185, 196 (Pa. Super.
2013). Moreover, when the record supports the PCRA court’s determination
regarding whether a petitioner established a reasonable probability that he
would not have pled guilty, this Court has affirmed the decision of the PCRA
court. Brown, ___ A.3d at ___, 2020 PA Super 169 at *15.
Our review of the certified record reflects Appellant indicated at the
PCRA hearing that had he known he would still have to go to state prison to
“go through the parole process,” he would not have pled guilty. N.T., 1/29/19,
at 9-10. Therefore, we next consider whether the result of the proceedings
would have been different, i.e., that Appellant would not have pled guilty and
would have insisted on going to trial.
Our analysis is informed by this Court’s decision in Commonwealth v.
Johnson, 179 A.3d 1153 (Pa. Super. 2018), wherein we addressed an
ineffective assistance of counsel claim related to the entry of a guilty plea. In
Johnson, the “[a]ppellant faced three separate criminal informations
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charging three counts of robbery, in addition to various violations of the
Uniform Firearm Act. Counsel negotiated a plea to two robbery counts, with
the Commonwealth withdrawing all other charges.” Id. at 1161. In
concluding that the PCRA court correctly rejected the appellant’s claim of
ineffective assistance, we stated the appellant “has failed to demonstrate why
he would have rejected that plea and elected to face all of those charges.” Id.
Here, Appellant was charged with eight criminal counts pertaining to a
shooting at a crowded nightclub. As previously stated, Appellant was charged
with one count of persons not to possess, use, manufacture, control, sell or
transfer firearms, a second-degree felony; one count of firearms not to be
carried without a license, a third-degree felony; and six counts of REAP, a
second-degree misdemeanor. If Appellant had not entered the guilty plea and
instead proceeded to trial, there is the possibility that he could have been
convicted of all eight of the crimes charged. Following such convictions, the
sentencing court could have imposed the maximum sentences for each crime
and instructed that they run consecutively. Thus, had he proceeded to trial
and been convicted of all charges, Appellant could have received a maximum
aggregate term of incarceration of twenty-nine years.6 Instead, upon entering
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6 We note that the second-degree felony charge carries a maximum penalty
of ten years of incarceration. 18 Pa.C.S. § 1103(2). The third-degree felony
charge carries a maximum sentence of seven years. 18 Pa.C.S. § 1103(3).
The six second-degree misdemeanor charges each carry a maximum term of
incarceration of two years. 18 Pa.C.S. § 1104(2). Accordingly, Appellant’s
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his guilty plea to a single count of carrying firearms without a license, a third-
degree felony, the trial court sentenced Appellant to serve a term of
incarceration of two to four years, and the Commonwealth did not object to
the sentence running concurrently with Appellant’s federal sentence.
Appellant has failed to demonstrate why he would have rejected the plea and
elected to face the eight charges and the risk of receiving the maximum
sentences to which he would have been subjected. Johnson, 179 A.3d at
1161.
In addition, in denying Appellant’s PCRA petition, the PCRA court
indicated that it was doing so based upon the credibility of the testimony
offered at the PCRA hearing. At the PCRA hearing, Appellant indicated he
would not have pled guilty had he known that he would have had to go through
the state parole process. Specifically, the following transpired at the PCRA
hearing during Appellant’s testimony:
Q. So your understanding is that … you will still have to go in the
state prison to go through the parole process?
A. Based on the way they explained it to me, yes.
Q. And had you known that, would you have pled guilty?
A. No.
N.T., 1/29/19, at 10.
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aggregate maximum sentence, if run consecutively, could have been twenty-
nine years of incarceration.
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Subsequently, the Commonwealth offered the following argument at the
conclusion of the PCRA hearing:
On the prejudice standard moreover, it’s [Appellant’s]
obligation to show that at the time he was agreeing to the plea,
had he known that there was a risk that he should have had to go
back into the state system for a matter of days or months, long
enough to qualify for parole, that he would have rejected the plea.
Now, that would have meant, first of all, facing eight counts
rather than one because, as part of the plea agreement, the
Commonwealth agreed to dismiss seven out of eight counts.
It also meant that instead of the Commonwealth agreeing
not to oppose having the state sentence made consecutive to the
federal sentence, the Commonwealth would have been free to
oppose that. And if the judge had agreed to that at sentencing,
then [Appellant] would not be looking at getting out of federal
prison in order to do whatever was necessary to get state parole.
He would have been looking at starting his minimum term in state
court in the state prison system, which would have meant two
years at a minimum. That’s if, of course, the [c]ourt did not wind
up finding him guilty of the other counts and imposing an even
higher sentence.
So with all this facing him, it’s not plausible for
[Appellant] to say that [he] would have rather faced an
unknown number of years in state prison after finishing [his]
federal sentence as opposed to the risk of having to go back into
the state prison system temporarily in order to get processed for
parole.
Id. at 22-24 (emphasis added).
Thereafter, the PCRA court made the following determination:
Based upon the [c]ourt’s review of what is in the [PCRA]
petition, the briefs and filings of the parties, and what the [c]ourt
finds to the credible evidence and testimony presented at the
hearing today, the [c]ourt will hereby deny and dismiss
[Appellant’s PCRA] Petition.
Id. at 25.
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J-S60038-19
Thus, after considering the evidence and testimony, coupled with the
arguments of the parties, the PCRA court made its credibility determinations
against Appellant and denied relief. Likewise, upon review of the record before
us, we conclude that, despite his self-serving testimony, Appellant has not
established that there is a reasonable probability that he would have rejected
the plea offer and proceeded to a trial. We discern no abuse of discretion by
the PCRA court or basis upon which to disturb the PCRA court’s determination
with regard to credibility. See Brown, ___ A.3d at ___, 2020 PA Super. 169
at *14-15 (concluding PCRA court did not abuse its discretion in granting PCRA
relief because the record supported the determination that the appellant met
his burden of showing a reasonable probability that he would have rejected
the plea offer). Accordingly, we conclude Appellant has failed to demonstrate
that he suffered prejudice from counsel’s actions with regard to the guilty plea.
In conclusion, Appellant has failed to satisfy the ineffective-assistance-
of-counsel test. Therefore, Appellant’s claim of ineffective assistance lacks
merit.
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J-S60038-19
Order affirmed.
Judge Stabile joined this Memorandum.
Judge Pellegrini filed a Dissenting Memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/11/2020
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