J-S05034-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ROCCO LEO WING
Appellant No. 1122 WDA 2014
Appeal from the Order Entered June 12, 2014
In the Court of Common Pleas of Lawrence County
Criminal Division at No: CP-37-CR-0000479-2009
BEFORE: DONOHUE, SHOGAN, and STABILE, JJ.
MEMORANDUM BY STABILE, J.: FILED APRIL 27, 2015
Appellant, Rocco Leo Wing, appeals from the June 12, 2014 order
dismissing his petition pursuant to the Post Conviction Relief Act (“PCRA”),
42 Pa.C.S.A. §§ 9541-46. We affirm in part, vacate in part, and remand.
On May 11, 2012, Appellant pled guilty to possession with intent to
deliver a controlled substance (“PWID”), manufacturing methamphetamine
in a structure where a child under the age of 18 is present, conspiracy,
recklessly endangering another person (“REAP”), and identity theft.1 On July
12, 2012, the trial court imposed an aggregate 8 to 16 years of
incarceration. Appellant filed an untimely motion for modification of his
____________________________________________
1
35 P.S. § 780-113(a)(30) and (38), 18 Pa.C.S.A. §§ 903, 2705, and 4120,
respectively.
J-S05034-15
sentence on August 10, 2012. The trial court denied that motion on August
16, 2012.
On July 17, 2013, Appellant filed a timely first pro se PCRA petition.
The PCRA court appointed counsel on July 23, 2012. The PCRA court
conducted a hearing on March 24, 2014, at which Appellant and Appellant’s
plea counsel testified. On June 12, 2014, the trial court entered the order
on appeal granting Appellant partial credit for time served but otherwise
denying collateral relief. This timely appeal followed.
We review an order denying collateral relief to determine whether the
record supports the PCRA court’s findings and whether the court’s ruling was
free of legal error. Commonwealth v. Timchak, 69 A.3d 765, 769 (Pa.
Super. 2013). “This Court grants great deference to the findings of the
PCRA court if the record contains any support for those findings. Further, the
PCRA court’s credibility determinations are binding on this Court, where
there is record support for those determinations.” Id.
Appellant argues the PCRA court erred in not awarding credit against
his sentence for jail time he served from December 11, 2008 to March 29
2009. Appellant also argues plea counsel was ineffective in offering
erroneous advice that induced Appellant’s guilty plea. We will address these
arguments in turn.
As noted above, the PCRA court’s June 12, 2014 order granted
Appellant additional credit for time served prior to sentencing. Appellant
-2-
J-S05034-15
argues, and the Commonwealth concedes, that Appellant is entitled to more
credit than the PCRA court awarded. Both parties rely on 42 Pa.C.S.A.
§ 9760(4):
§ 9760. Credit for time served.
After reviewing the information submitted under section 9737
(relating to report of outstanding charges and sentences) the
court shall give credit as follows:
[…]
(4) If the defendant is arrested on one charge and later
prosecuted on another charge growing out of an act or acts that
occurred prior to his arrest, credit against the maximum term
and any minimum term of any sentence resulting from such
prosecution shall be given for all time spent in custody under the
former charge that has not been credited against another
sentence.
42 Pa.C.S.A. § 9760(4). This Court has held that a trial court’s failure to
award proper credit for time served implicates the legality of a sentence, and
that this issue is cognizable under the PCRA. Commonwealth v. Davis,
852 A.2d 392, 399-400 (Pa. Super. 2004), appeal denied, 868 A.2d 1197
(Pa. 2005); Commonwealth v. Beck, 848 A.2d 987, 989 (Pa. Super.
2004).2
____________________________________________
2
We note that Appellant’s argument implicates the trial court’s written
sentencing order and not a faulty computation of time by the Department of
Corrections. The former is cognizable under the PCRA, whereas the latter
falls within the original jurisdiction of the Commonwealth Court.
Commonwealth v. Heredia, 97 A.3d 392, 394-95 (Pa. Super. 2014),
appeal denied, 104 A.3d 524 (Pa. 2014).
-3-
J-S05034-15
Police arrested Appellant on December 11, 2008 and charged him with
a variety of drug-related offenses. Appellant was incarcerated as of that
date and unable to post bond. On March 29, 2009, while Appellant remained
incarcerated, the Commonwealth withdrew the original charges and filed a
new complaint. The charges in the March 29, 2009 complaint arose from
the criminal acts leading to the December 11 arrest along with several
additions. In its July 12, 2012 judgment of sentence, the trial court ordered
credit for 1,201 days of time served. Judgment of Sentence, 7/12/12, at 3.
On collateral review, the PCRA court noted Appellant was incarcerated for
1,235 days from March 30, 2009 through the July 12, 2012 judgment of
sentence totaled 1,235 days. The PCRA court therefore awarded an
additional 34 days of credit for time served. Order, 6/12/14, at ¶ 4. The
PCRA court did not award credit for time served beginning with Appellant’s
arrest and incarceration on December 11, 2008. The Commonwealth
concedes the plain language of § 9760(4) required the court to do so. We
agree, and therefore vacate the PCRA court’s order and remand for entry of
a new order consistent with this memorandum.
Appellant second issue is that plea counsel’s ineffective assistance
caused him to enter an involuntary guilty plea. In the body of the appellate
brief, Appellant’s counsel opines that this issue lacks merit. Appellant’s Brief
at 14. Counsel representing a PCRA petitioner may choose from among
three procedural options: (1) advocate on the petitioner’s behalf, including
-4-
J-S05034-15
the filing of an advocate’s brief with this court; (2) file in the PCRA court a
petition to withdraw and no merit letter pursuant to Commonwealth v.
Turner, 544 A.2d 927 (Pa. 1998) and Commonwealth v. Finley, 550 A.2d
213 (Pa. Super. 1998) (en banc), or (3) file a Turner/Finley letter and
petition to withdraw in this Court. See Commonwealth v. Quail, 729 A.2d
571, 573 n.2 (Pa. Super. 1999). Here, counsel improperly combines two of
these three options, filing an advocate’s brief that includes an apparent no
merit letter with regard to one issue. We are aware of no precedent
authorizing this course of action. Given counsel’s abandonment of
Appellant’s second issue and his failure to cite legal authority in support of
its merit, we deem the issue waived. Pa.R.A.P. 2119(b).
We observe, nonetheless, that Appellant’s second issue would fail even
if we reached the merits. The PCRA court’s opinion of January 12, 2014
thoroughly and accurately addressed the merits of Appellant’s second issue.
See Trial Court Opinion, 1/12/14, at 2-14. In particular, Appellant pled
guilty after a thorough and adequate colloquy evincing that his plea was
knowing, intelligent, and voluntary. We would reject Appellant’s argument
on the basis of the legal analysis set forth in the PCRA court’s opinion. We
direct that a copy of the trial court opinion be filed along with this
memorandum.
To summarize, we vacate that portion of the PCRA court’s order
pertaining to credit for time served. We affirm the remainder of the PCRA
-5-
J-S05034-15
court’s order. We remand for entry of a new order in accordance with this
memorandum.
Order vacated in part and affirmed in part. Case remanded.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/27/2015
-6-
LAWKtnt WOW rKWMVIIVIhNI JVVJ
Jun. 12. 21114 1:WM
.PLEAS
: IN THE COURT OF COMMON
-COMMONWEALTH OF •
•
PENNSYLVANIA, NIA
LAWRENCE COUNTY,PENNSYLVA
vs. : NO.479 OF 2009, C.R.
ROCCO LEO WING,
OTN: 043807-6
Defendant.
APPEARANCES
Gregory J. Simatic, Esquire
FOR THE COMMONWEALTH: Deputy Attorney General
Office of the Attorney General
564 Forbes Avenue,6th Floor
Pittsburgh, PA 15219
pro se
FOR THE DEFENDANT: Standby Counsel:
John J_ Bongivengo, Esquire
1301 West State Street, Suite B
New Castle, PA 16101
OPINION
June 12, 2014
Piccione, J.
Conviction
ore the Cou rt for disp osit ion is the pro se Motion for Post
Bef
g
(her eina fter , the "PC RA" ) filed by the Defendant, Rocco Leo Win
Collateral Relief
which he
fter , the "De fen dan t") , The Defendant raised incidents during
(hereina
l. The Defendant
ted ly rec eiv ed inef fect ive assistance from his prior counse
pur por
ermined the truth-
ance of his trial counsel so und
contends that such ineffective assist
nce could have
able adjudication of guilt or innoce
determining process that no reli
Defendant
Bec aus e of the all ege d errors of his prior attorney, the
taken place.
1:Donivi LiCic Jul IT rnvinvilvHlAt , -r
Jun. 1/. Li11 11.
requests this Court permit him to modify his sentence, or permit him to withdraw his
is denied.
guilty plea.' For the following reasons, the Defendants PCRA
to the charges of
On May 11, 2012, the Defendant entered a plea of guilty
to 35 PS. § 780-
possession with intent to deliver a controlled substance pursuant
a child is present
113(2)(30), manufacturing methamphetamine in a structure where
e in manufacturing
pursuant to 36 P.S. § 780-113(038), criminal conspiracy — engag
to deliver and/or unlawful
pursuant to 18 Pa.C.S.A. § 903(a)(1), possession with intent
g er person pursuant to
delivery of a controlled substance, recklessly endangerin anoth
to 18 Pa.C.SA § 4120(a). The
18 Pa.C.S,A. § 2705, and identity theft pursuant
plea on his behalf. The
Defendant was represented by courisel, who negotiated the
and a plea hearing was held
Defendant completed a written guilty plea colloquy,
cted, the Court accepted the plea
before this Court. After an oral colloquy was condu
the Defendant to an aggregate
agreement, and, on July 12, 2012, the Court sentenced
n (16) years of incarceration
term of not less than eight (8) years nor more than sixtee
to be saved in a state correctional institution.
ns nor a direct appeal frorn his
The Defendant filed neither post sentence motio
Defendant filed the timely PCRA,
sentencing order. Instead, on July 23, 2013, the
listed charges was unlawfully
wherein he argues that his guilty plea to the above-
that his prior counsel's
induced by his prior counsel. The Defendant argues
his guilty plea to be entered unknowingly and involu
ntarily.
ineffectiveness rendered
s this Court reinstate his appellate rights. This Court wishes to
I.n his pro se Motion, the Defendant also request Supreme
1.
OM IL. al4 1.14111c011ot WUlli 1 rrwinurivirinj
time the
201 4, thi s Cou rt hel d a hea ring on the PCRA, during which
On March 24,
Defendant and his prior counsel.
Court heard testimony from the
claim of the
to seek post-cOnviction relief for a
The PCRA permits a petitioner
Under
ass ist anc e of tria l cou nse l. 42 Pa.C.S.A. § 9543(a)(2)(ii).
ineffective
ctively. Comm.
ic presumption that counsel acted effe
Pennsylvania law, there is a bas
ts on the
94 2 A.2 d 903 , 906 (Pa . Sup er. 2008). Thus, the burden res
v. Jones,
r "must plead and
one r to dem ons tra te ine ffe cti veness. Id. To do so, the petitione
petiti
fective
pre pon der anc e of evi den ce tha t his conviction resulted from inef
prove by a
ular case, so
the circumstances of the partic
assistance of counsel which, in
ion of guilt or
the tru th- det erm ini ng pro ces s that no reasonable adjudicat
undermined
.
en pla ce. " Co mm . v. Gra nberry, 644 Ald 204, 207 (Pa
innocence could have tak
Super. 1989)).
Dukeman,565 A.2d 1204(Pa.
Super. 1994)(citing Cornm. v.
whether the
three-prong test to determine
Pennsylvania courts apply a
899 A.2d
est abl ish ed ine ffe cti ven ess of counsel. Comm. v. Sneed,
petitioner has
the issue underlying
107 6 (Pa . 200 6). Th e pet iti oner must first demonstrate that
1067,
it must
uab le mer it Id. Nex t, if the claim does have arguable merit,
the claim has arg
reasonable basis
det erm ine d whe the r cou nse l's acts or omissions had some
then be
the
int ere sts of his cfie nt. Id. "On ce it has been determined that
designed to serve the
is designed to
r cou rse of act ion cho sen by cou nsel had some reasonable bas
particula
effective.°
clie nt's int ere sts , cou nse l will be deemed constitutionally
effectuate his
rel. Washington v.
Mill er, 431 A.2 d 233 , 23 5 (Pa. 1981) (citing Comm. ex
Comm. v.
Jun, IL Zvlq I:Dorm LAWNCR,C WUIVIT IRVinviwitmr
Of ineffective
at 1076. "Prejudice in the context
prejudice to him. Sneed, 899 A.2d
ability That
onstrating that there is a reasonable prob
assistance of counsel means dern
erent.'
e of the proceeding would have been diff
but for counsers error, the outcom
. 724 A.2d
(Pa. 2001)(citing Comm. v. Kimball,
Comm. v. Pierce, 786 A.2d 203, 213
rejection of
sfy arty of the three prongs will require
326, 332(Pa. 1999)). Failure to sati
Ald 544, 556(Pa. Super. 2008).
the claim. COMM. v. Hammond,953
s for
con tex t of a guilty plea , inef fect iveness of counsel will serve as a basi
In the
oluntary and
sed the defendant to enter an "inv
relief only if the ineffectiveness cau
"Where the
921 tad 526, 531 (Pa. Super. 2007).
unknowing plea." Cornm. v. Moser,
the plea
ant ent ers his ple a on the advice of counsel, the voluntariness of
defend
demanded
was within the range of competence
depends on whether counsers advice
, 141 (Pa.
rney s in crim inal cas es. " ld. (cit ing Comm. v. Hickman, 799 A.2d 136
of atto
stances make it
unlawfully induced where the circum
Super. 2002)). "A plea of guilty is
tioner is
the ind uce men t cau sed the petitioner to plead guilty and the peti
likely that
42 Pa.C.S.A.
d 389, 394(Pa. Super. 2012)(citing
innocent." Comm. v. Rachak, 62 A.3
§ 9543(a)(iii).
the
r sentence is imposed requires that
The withdrawal of a guilty plea afte
was
a man ife st inju stic e occ urr ed, which mandates that the plea
defendant show that
ad, 794
d into involuntarily, unk now ing ly, or unintelligently. Comm. v. Muhamm
entere
totality of the
2). The Court must examine the
A.2d 378, 383 (Pa. Super. 200
luntarily or
nce s and det erm ine whe the r the plea was entered into invo
circumsta
Jun. 12. 2014 1:brm LAWKMt UNNIY rKVIMUNUti-MT
1
that the trial court should inquire
into at least six
offered in ope n cour t, arid adv ise
and irrtelligentiy
as in ord er to sho w tha t the plea was voluntarity, knowingly,
are
as:
Court must inquire into the following are
entered." Rachals,62 A.3d at 394. The
d the nature of the charges
(1) Does the defendant understan
to which he is pleading guilty?
a?
(2) Is there a factual basis for the ple
d that he has the right to trial
(3) Does the defendant understan
by jury?
that he is presumed
(4) Does the defendant understand
innocent until he is found guilty?
of the permissible ranges of
(5) Is the defendant aware
es charged?
sentences and/or fines for the offens
judge is not bound by the
(6) Is the defendant aware that the
dered unless the judge
terrns of any plea agreement ten
accepts such agreement
1189-1190 (Pa. 1977).
Comm. v. Willis, 369 A.2d 1189,
h an oral
the tim e of the Def end ant s guilty plea, the Court went throug
At
d that he
agreement. The Defendant indicate
colloquy odor to accepting the plea
hed to enter
und ers too d the Com mon wea lth's recommendation and still wis
heard and
oral colloquy
lth also conducted the following an
a plea of guilty. The Commonwea
with the Defendant
for the
Q: Mr. Wing, could you state your name
record, please.
A: Rocco Leo Wing.
tand the
Q: And can you read, wdte and unders
English language?
53RD
JuDICIAL A: Yes, ma'am.
D.STR PVT
01RENCX
L...0, COUNrY
4.A
PENN3VLVA: t 2 1=1
2014
Circulated 03/31/2015 10:43 AM
LAWKnUt WUN1! U. /VV./ V
Jun. 12. 2014 l:56PM
1
y
Q: Okay. And you understand you're here toda
g manu fact urin g
pleading guilty to several counts, includin mine in
metharnp heta
of rnethamphetamine, manufacturing
a child's horne, identity theft , cons piracy to commit
and recklessly
manufacturing of methamphetamine
endanger another person?
A: Yes, ma'am.
or
Q: Have you had any drugs, alcohol
s?
prescription medication, within the last 24 hour
A: No, ma'arn.
do you
Q: Do you have a clear- head and
under-stand the purpose of today's proc
eedings?
A: Yes, ma'am.
form that
Q: And did your attorney give you this
ts and the rights you
I'm holding here that explains your righ
?
give up by pleading guilty (indicating)
A: Yes, ma'am.
bottom of
Q: And are these your initials at the
each page?
A: Yep.
page?
Q: And did you, in fact, sign the last
corr ect?
Actually, you used your initials; is that
A: Yes, ma'am.
on this
Q: Did you understand ail the questions
guilty plea form?
A: Yes, ma'am.
fully
Q: And did you answer all the questions truth
L11Ll1 v L vvUEll T PA.) I rIVIIV I FILK Y
0; Do you have arty questions at all about either
the form or what's going on in court here today?
A: No, rna'am.
Q: Did anyone make any threats of force or
promises to get you to enter into this plea?
A. No, ma'am.
Q: And do you understand that the
manufacturing of methamphetamines is an ungraded felony
and carries a maximum incarceration of up to 20 years and
a maximum fine of up to $2001000?
A: Yes, ma'am.
- Q: And do you understand that manufacturing
methamphetamine in a child's home carries a maximum
sentence of seven years and a maximum fine of $25,000?
A: Yes, ma'am.
Q: And do you understand that conspiracy to
manufacture carries a maximum sentence of ten years and
a maximum fine of $100,000?
A: Yes, ma'am.
Q: And do you understand that identity theft
carries a maximum incarceration of seven years and a
rnaximum fine of $15,000?
A: Yes, ma'am.
Q: And do you understand that the Court has not
taken part in the plea agreement. The plea agreement I'm
speaking of are the recommendations we've made. Do you
understand that?
A: Yes, ma'am.
Q: And do you understand that if the Court
53R o accepts your guilty plea, but sentences you beyond the •
.0./D/CIA L terms and the Commonwealth has recommended, you
!WM(CT
have no absolute right to withdraw your guilty plea?
LAWNENC.E. COVWCY
PENNSYLVANIA
7
Circulated 03/31/2015 10:43 AM —
u ÌL tVILY I )I LmI/IILPA/C lokYJIIT frOJIMAVIART No,
A: Yes, ma'am.
CI: And do you understand you had a right to
proceed to a jury trial in this case?
A: Yes, ma'am.
Q: And did you understand that if you chose to
go to trial, you would have been presumed innocent until
proven guilty and if would have been up to the
Commonwealth to prove to all 12 jurors beyond a
reasonable doubt that you are guilty?
A: Yes, ma'am.
•And you heard me read from the information
Q:
regarding the charges in that you comrnitted several
unlawful deliveries in Lawrence County and Butler County,
that you manufactured metharnphetamine in the home of
Daisy, Vanessa and Melina, that you committed identify
theft against Elijah Silver, that you conspired to commit
manufacturing of methamphetamine with Martha mills and
that you recklessly endangered the lives of Vanessa, Daisy
and Melina; is that correct?
A: Yes, ma'am.
Q: Okay. And do you admit that those facts that
l read are true and effect?
A: Yes, ma'am.
Q: Did you talk to your attorney about the guilty
plea you're entering today?
A: I did.
Q: And did your attorney explains [sic] to you the
nature and the elements of the charges against you and
the — and what the Commonwealth would have to prove to
Lmmun,L NAJUWIT M./M./MANY
No. 5865 F. 11
Q: And are you satisfied with the services that
Mr. Bonner's provided you in this case?
A: Yes, ma'am.
N.T. Guilty Plea pgs. 11-16. Based upon the above oral colloquy as well as the
supplemental written colloquy, the Court found that the Defendant vvas entering his
• plea of guilty voluntarily, knowingly, and intelligently. As the Defendant stated in the
above colloquy, it was his decision to enter the guilty plea, and he was satisfied with
his legal representation. He agreed with the factual basis upon which the charges
were based. The Defendant also stated he had not been coerced or threatened to
plead guilty, or that there was guaranteed sentence to be imposed, and that he could
have proceeded to trial but elected to enter the instant plea.
In his PCRA, the Defendant argues that his plea was not voluntarily, knowingly,
and intelligently entered because he was mislead to plead guilty to .the charge of
identity theft after he had continued to proclaim his innocence of that charge. During
the hearing on the PCRA, the Defendant's prior counsel was questioned about .his
negotiations with the Commonwealth. His prior counsel testified that• he hed numerous
discussions with the Assistant Attorney General regarding the cornprehensive plea
agreement prior to the date of the plea hearing. Counsel also testified that he• recalled
that he and the Defendant discussed the possibility of excluding the charge of identity
theft, but the Commonwealth would not accept that offer.
At the time of the plea hearing, the Defendant's prior counsel testified that he
vuti. L. LV14- 1:)trivi LAWK tNkA WUNIY MIHUNUIAKY No. 5865 P. 12
Commonwealth had sufficient evidence to present, which would likely result in a
conviction on greater charges. Further, the Defendant interrupted his counsel during
the plea colloquy to review the terms of the agreement. Counsel indicated that at no
point did the Defendant convey that he did not wish to proceed any further with the
plea hearing.
The Defendant testified, however, that he was under the impression that he was
not entering a guilty plea to the charge of identity theft. The Defendant testified that
his prior counsel visited him in prison prior to the plea hearing and his counsel
informed hirn that he would not have to plead guilty to identity theft. Additionally, prior
to the comrnencement of the plea hearing on May 11, 2012, the Defendants prior
counsel discussed the plea with him. Even then, the Defendant asserts that identity
theft was never discussed with him. The Defendant completed a written guilty plea
colloquy prior to the hearing. On the second page of the guilty plea colloquy, the
charge of identity theft was written, but crossed off. The Defendant asserts that the
first time he heard that the charge of identity theft was included in the plea agreement
was when the Commonwealth stated so on the record. At that time, the Defendant
interrupted the colloquy to ask his counsel why Identity theft was included and
asserted he never agreed to plead guilty to the charge. The Defendant recalled that
his prior counsel indicated that if he went to trial, he would likely be found guilty of this
charge and he would not advise rejecting the plea offer at that time.
The Defendant explained that entered the plea of guilty to the charge of identity
ic. Lviit 1:)/rivi Llilfltttnt LAM I Y FKUltIONUIARY No. 5865 P. 13
that had to be continued and dici not want the Court to take this into consideration
upon sentencing. The Defendant testified that he was completely surprised when he
heard that the Commonwealth included the charge of identity theft in the plea
agreement and felt as if he were coerced into entering a plea of guilty to it.
Based upon the above, the Court believes there is no question that the
Defendant entered his plea knowingly, voluntarily and intelligently. The Defendant
affirmed and reaffirmed his knowledge otthe terms of the plea agreement in oral and
in written form. The Defendant even stated that he was satisfied with his legal
representation. "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 asiert grounds
for withdrawing the plea which contradict the statements he made at his plea
colloquy,' Comm. v. Yeomans, 24 A.3d 1044, 1045 (Pa.Super. 2011). IA] defendant
who elects to plead guilty has a duty to answer questions truthfully. rrhe Court
cannot] permit a defendant to postpone the final disposition of his case by lying to the
court and later alleging that his lies were induced by the prompting of counsel."
Comm. v. Pollard, 832 A.2d 617, 523-24(Pa. Super. 2003).
The Court refers to Comm. v. Rathfon for guidance. 899 A.2d 366 (Pa. Super.
2006). In Rathfon, the trial court found ineffective assistance of counsel with regard to
a defendant's plea agreement and permitted the defendant to withdraw his guilty plea.
LVI'l I .)ifM 1
LMORGNI,C .AWNIT rKVIMUNUiliKY No. Mn V. 14
incarceration of nine (9) to eighteen (18) months in the county fadrity. At the time of
the plea hearing, no one recognized that the defendant would not be able to serve his
sentence in county jail because his prior convictions. The defendant's sentence would
be aggregated consecutively wtth his state prison sentence. After the Department of
Corrections aggregated his sentence with his prior sentence, the defendant filed a
PCRA petition asserting ineffecfive assistance of his plea counsel.
In the PCRA, the defendant argued that as a result of his plea counsel's
ineffective assistance, the defendant entered his plea involuntarily and unknowing. At
the plea hearing, the defendant asserted that his plea was conditioned upon his
receiving a county sentence. The defendant argued that his plea agreement was
bargained for and would not have entered a plea of guilty had he known that he would
not be able to serve his sentence in county prison. After the hearing, the trial court
permitted the defendant to withdraw his guilty plea, and the Commonwealth appealed.
On appeal, the Superior Court of Pennsylvania found that the record supported
the trial coures determination that there was a reasonable probability that the
defendant would not have pleaded guilty had he known that he would not have been
able to serve his sentence in a county facility. As a result, the Superior Court affirmed
the trial court's order, which permitted the defendant to withdraw his guilty•plea. The
Superior Court reasoned that the defendant had bargained for a county sentence and
did not get what he bargained for. The Superior Court stated that the defendant was
under "the continuing misapprehension that the sentence would be served in the
W 1. LVJt
1 L. 1 • J/ 1 HI LMOREnC MIMUNUIRKY No, 5665 P. 15
This Court finds the above case to be distinguishable from the instant case. In
Rathfon, the defendant entered into a plea agreement with terms that were impossible
to fulfill. The • defendant did not discover this impossibility until an action by the
Department of Corrections, eight months after he was. sentenced by the trial court.
The defendant in Rathfon did not get what he bargained for. In the instant case, the
Defendant stated under oath that he committed the crimes with which he was charged.
He stated that the factual basis for the crimes was accurate and he understood the
implications of his guilty plea and he was voluntarily entering the plea. The Defendant
could have stopped the proceedings at any point to state that he did not wish to enter
.- a guilty plea to the charge of identity theft, but he did not He• did not .exhibit any
indication that he did not wish to plead guilty. Moreover, at the time of the Defendants
sentencing, the Court also gave the Defendant an opportunity to place any statement
on the record. The Defendant communicated his intent to serve his sentence then to
make better decisions in his life. When the Court asked him tf he had any questions,
the Defendant answered that he did not Here, the Defendant received exactly what
he bargained for.
Unlike in Rathfon, here, there is no indication that the Defendant was under a
continuing misapprehension of the terms of his agreement However, assuming, in
arguendo, that the Defendant did not agree to plead guilty to identity theft prior to the
plea hearing, the record indicates that he had a discussion with his counsel during the
hearing and stated that he did not wish to take a recess, that he wished to continue.
V U 11, 1 . J.1 1 RI LritrALnivi. l,UVl l T í AU! fllJilu 111:f NO. DM r. rt
knowingly and voluntarily pleading guilty to the charges listed above. The Defendant
even stated that he was satisfied with his legal representation. The Defendant'cannot
now recant his representations made under oath to the Court
Additionally, the Defendant is not able to prove that his prior counsers actions
have prejudiced him. "To succeed in showing prejudice, the defendant must show that
it is reasonably probable that, but for counsel's errors, he would not have pleaded
guilty and would have gone to trial." Hickman, 799 A.2d at 141. "The reasonable
probability test is not a stringent one; it merely refers to a 'probability sufficient to
undermine confidence in the outcome." Comm. v. Berndt, 74 A.3d 185,192 (Pa.
Super. 2013) (internal quotation marks and citations omitted). Because this Court
finds that the Defendant entered his plea of guilty knowingly, voluntarily and
intelligently, the Defendant is unable to show he has suffered prejudice. He cannot
show that but for his counsel's actions, he would not have accepted the plea
agreement. As stated in Pollard, "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." 832 A.2d at 524. For the foregoing reasons, the
Court agrees with the Commonwealth that the Defendant is bound by his statements
and may not be permitted to withdraw his guilty plea or modify his sentence under.this
theory.
Next, the Defendant argues that he received Ineffective assistance from his
prior counsel because his prior counsel failed to file a post-sentence motion. During
L. Lv LnIRRENVC WWII; rKUlhUNMAKY No. 5865 P. 17
modification. The Defendant attached this letter to his PCRA. Upon review, the
Defendant wrote that he believes his sentence is too harsh, 1-le stated that he did not
wish to withdraw his plea. On August 10, 2012, the Defendants prior counsel •did file
the Motion for Sentence Reduction/Modification, in which he asks the Cpurt to lessen
his sentence. This Motion was denied by this Court Because the Defendants prior
counsel performed exactly as the Defendant asked, the Defendant did not receive
ineffective assistance for failing to file any further post-sentence motion.
Lastly, the Defendant argues that he received ineffective assistance 'from .his
prior counsel because he was not provided with the proper credit for time already
served in prison. According to the Lawrence County Jail records, the Defendant was
incarcerated prior to sentencing for purposes of the instant case frorn March 30, 2009
to August 15, 2012, totaling one thousand two hundred thirty-five (1235) days.
According to the Defendants sentencing order, the Defendant was credited with one
thousand two hundred one (1201) days served. As a result, the Defendant is entitled
to be credited with an additional thirty-four (34) days attributable to his current
sentence.
Based upon the foregoing, the Defendants Motion for Post-Conviction
Collateral Relief is hereby granted in part ancl denied in part.