J-S40043-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
LAMONT CRANSTON GORHAM
Appellant No. 205 MDA 2014
Appeal from the PCRA Order January 27, 2014
In the Court of Common Pleas of Lancaster County
Criminal Division at No(s): CP-36-CR-0002412-2010
CP-36-CR-0003360-2010
CP-36-CR-0003520-2010
BEFORE: BENDER, P.J.E., BOWES, J., and PANELLA, J.
MEMORANDUM BY PANELLA, J. FILED AUGUST 28, 2014
Appellant, Lamont Cranston Gorham, appeals from the order denying
post-conviction relief pursuant to the Post Conviction Relief Act (PCRA), 42
Pa.C.S.A. §§ 9541-954, entered January 27, 2014, by the Honorable Dennis
E. Reinaker, Court of Common Pleas of Lancaster County. After careful
review, we affirm.
As we write exclusively for the parties, who are familiar with the
factual context and legal history of this case, we set forth only so much of
the procedural history as is necessary to our analysis.
Gorham was charged with several theft and robbery related counts.
On March 9, 2011, Gorham pled guilty to all charges pursuant to a
negotiated plea agreement. Pursuant to the plea agreement, Gorham was to
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serve a total sentence of 13 to 26 years of incarceration. The
Commonwealth submitted to the trial court various documents associated
with the guilty plea, including the written guilty-plea colloquy signed by
Gorham. Finally, the trial court informed Gorham that he faced a potential
aggregate sentence of 117 years of incarceration.
During the sentencing hearing, which took place on May 18, 2011,
Gorham articulated for the first time his belief that the plea agreement
represented merely an upper limit for his sentence, and not a final
agreement of the length of the sentence. Thereafter, the trial court
explained to Gorham why he was incorrect and noted that Gorham had, in
fact, indicated in the written guilty-plea colloquy that he understood what his
maximum exposure was. Gorham lodged no further objection and he never
moved to withdraw his plea before sentencing. The trial court then
sentenced Gorham pursuant to the plea agreement.
Gorham then filed a timely notice of appeal to this Court, which
affirmed the judgment of sentence. See Commonwealth v. Gorham, 1335
MDA 2011 (Pa. Super., March 16, 2012) (unpublished memorandum)
(Panella, J). Gorham did not file a petition for allocator in our Supreme
Court. Thereafter, Gorham filed a pro se PCRA petition. The PCRA court
appointed counsel who subsequently filed an amended PCRA petition. An
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evidentiary hearing occurred1 and the PCRA court denied relief on January
27, 2014. This timely appeal follows.
counsel was ineffective when he failed to competently advise the defendant
concerning the plea agreement of 13 to 26 years and failed to advise the
acknowledged his understanding of the maximum sentence, we cannot find
counsel ineffective.
Our standard of review regarding a PCRA court's denial of a petition for
post-conviction relief is well settled. We examine whether the determination
of the PCRA court is supported by the evidence of record and is free of legal
error. See Commonwealth v. Smith, 995 A.2d 1143, 1149 (Pa. 2010).
The PCRA court's findings will not be disturbed unless there is no support for
the findings in the certified record. See id. Our scope of review is limited to
the findings of the PCRA court and the evidence of record. See
Commonwealth v. Burkett, 5 A.3d 1260, 1267 (Pa. Super. 2010).
____________________________________________
1
Gorham failed to request a transcript for the PCRA evidentiary hearing that
occurred on November 15, 2013. As such, we may not consider it in making
our decision. See Commonwealth v. Preston, 904 A.2d 1, 6 (Pa. Super.
materials in the certified record when resolving an issue. ... [U]nder the
Pennsylvania Rules of Appellate Procedure, any document which is not part
of the officially certified record is deemed non-
omitted).
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for not competently advising him about the sentencing parameters of his
guilty plea and for failing to notify him that his sentencing date had been
moved up by one day. This single claim is in reality, two separate claims of
ineffective assistance of counsel. The first concerning advice about the guilty
plea and the second on the failure to notify Gorham that his trial date had
been moved up.
We presume that counsel is effective and Gorham bears the burden of
proving otherwise. See Commonwealth v. Steele, 961 A.2d 786, 796
(2008). To prevail on this claim, Gorham must plead and prove the following
three factors:
(1) That the underlying claim is of arguable merit; (2) that
preju
probability that but for the act or omission in question the
outcome of the proceeding would have been different
Commonwealth v. Lauro, 819 A.2d 100, 105-6 (Pa. Super. 2003) (citing
Commonwealth v. Pierce, 527 A.2d 973 (Pa. 1987)).
-established that claims of ineffective
assistance of counsel in relation to a plea of guilt will provide a basis for
relief only if the appellant can prove that the ineffectiveness caused an
, 805
A.2d 1244, 1246-47 (Pa. Super. 2002) (citations omitted). In this regard,
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and a defendant may not later offer reasons for withdrawing the plea that
Commonwealth v. Brown, 48
A.3d 1275, 1277-78 (Pa. Super. 2012) (citations omitted).
In the instant case, it cannot be said that the ineffectiveness of
ilty plea involuntary or unknowing.
Initially, we note that most of the evidence Gorham cites in support of his
claim is contained in the PCRA transcript, which, as noted, is not contained
adequate
certified record, there is no support for an appellant's arguments and, thus,
Preston, 904 A.2d at 7.
Regardless of these deficiencies in the certified record, there is
adequate evidence in the record to establish that Gorham knowingly and
voluntarily agreed to his plea bargain. First, during his guilty plea hearing
the following exchange occurred:
The Court: I believe the maximum sentences then would be up
to 117 years in prison and maximum fines of up to $180,000. Do
you understand that?
The Defendant: Yes, Sir.
N.T., Guilty Plea Hearing, 03/09/2011 at 15-16 (emphasis added).
Moreover, Gorham also acknowledged his understanding of the maximum
sentence in the written guilty plea colloquy when answered in the affirmative
sentence that you could receive for your plea today if you were sentenced to
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the maximum and all sentences where consecutive would be 117 years and
$180,00
in the affirmative that he had sufficient time to review this information
contained within the plea and the attorney. See Guilty Plea Colloquy at 7.
Importantly, Gorham also answered the fo
did not understand any part of this form, has your attorney explained it to
Id. Finally, during the sentencing
agreement with Gorham several times, as they attempted to negotiate the
individual numbers. See N.T., Sentencing, 05/18/2011, at 6-7.
In sum, there is a plethora of evidence on the record to demonstrate
that counsel for Gorham was effective in his assistance of Gorham in relation
to his guilty plea and that Gorham knowingly and voluntarily entered the
plea. Therefore, Gorham fails to establish that his underlying claim has
arguable merit.
ineffective when he did not inform him that his sentencing date had been
moved up by one day. However, even if it could be said that there was
arguable merit to the underlying claim, we find no prejudice has occurred.
While it is true that the sentencing hearing was moved up by one day
unbeknownst to Gorham, the Court accepted the plea deal and sentenced
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Gorham according to the agreement
as it would have been had the sentencing occurred on the following day.
s claim on appeal does not merit relief from this
Order affirmed. Jurisdiction relinquished.
Bowes, J., concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/28/2014
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