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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
LEO DANIEL EDWARDS, JR.,
Appellant No. 550 MDA 2015
Appeal from the Order Entered February 20, 2015
In the Court of Common Pleas of Luzerne County
Criminal Division at No(s): CP-40-CR-0001004-2013
BEFORE: BOWES, OTT, AND FITZGERALD,* JJ.
MEMORANDUM BY BOWES, J.: FILED FEBRUARY 05, 2016
Leo Daniel Edwards, Jr., appeals from the February 20, 2015 order
denying him PCRA relief. We affirm.
This appeal involves four different criminal cases. At action number
1004 of 2013, Appellant was charged with retail theft graded as a first-
degree misdemeanor after he was seen on November 14, 2012, leaving the
Bed, Bath and Beyond in Arena Hub Place, Wilkes-Barre Township, with two
Dyson vacuum cleaners worth $1,198 without paying for them. Case
number 1020 of 2013 involves a first-degree misdemeanor retail theft
offense that Appellant committed when he took a Dyson vacuum worth
about $500 from a Wal-Mart Superstore in Wilkes-Barre Township on July
24, 2012. This crime was captured on surveillance tape. At case number
*
Former Justice specially assigned to the Superior Court.
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1021 of 2013, at the Target Department Store located at 3400 Wilkes-Barre
Township Commons in Wilkes-Barre Township, Appellant was observed
stealing a Dyson vacuum cleaner worth about $600 on September 19, 2013.
He was charged with retail theft graded as a first-degree misdemeanor. On
February 14, 2013, at criminal action 1022 of 2013, Appellant was charged
with retail theft graded as a third-degree felony. Between July 15, 2012,
and July 28, 2012, videotape surveillance captured Appellant stealing
$2,772.18 in merchandise, which consisted of thirty-two packages of men’s
razor blades and three Dyson vacuum cleaners, from the same Target
Department Store.
On October 10, 2013, he tendered a guilty plea at all four cases,
where all four crimes were graded as first-degree misdemeanors. Appellant
acknowledged at the proceeding that there was no agreement as to his
sentence and acknowledged that the maximum sentence that could be
imposed for each crime was five years in jail. A presentence report was
prepared, and the matter proceeded to sentencing on November 18, 2013.
The report revealed that Appellant had an extensive criminal history,
revocations of probation, escapes from work-release programs and
furloughs, and he had been released from prison “not long before
committing these offenses.” N.T. Sentencing, 11/18/13, at 5.
Based upon these factors, and since there were four offenses involved,
the sentencing court concluded that a state sentence was appropriate.
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Appellant was sentenced in the standard range to nine to twenty-four
months, but two of the sentences were imposed consecutively, resulting in
an aggregate term of imprisonment of one and one-half to four years.
Appellant did not file a direct appeal but did request PCRA relief in a
timely pro se petition filed on June 6, 2014. Counsel was appointed and
averred that Appellant was entitled to withdraw his guilty plea because
counsel told him that he would get a sentence of only six to twelve months
“total on these cases.” Brief in Support of Pro Se PCRA Petition and
Supplemental Counseled Petition, 2/5/15, at 2.
The court conducted a hearing on February 11, 2015, where plea
counsel, Joseph Yeager, Esquire, denied telling Appellant that he would
receive an aggregate sentence of six to twelve months in jail in the four
cases. N.T. Hearing, 2/11/15, at 24. Mr. Yeager explained to Appellant that
“on each and every count, the standard range was 6 to 12 months” and that
he could not predict what the aggregate sentence would be. Id. Mr. Yeager
additionally told Appellant, as substantiated by the plea colloquy, that there
was no agreement as to his sentence. Mr. Yeager testified that Appellant
“was never promised that his sentence would be 6 to 12 months concurrent
on each and every retail theft count.” Id.
The PCRA court denied relief on February 20, 2015, and this appeal
followed. Appellant presents one issue for our review: “Whether the trial
court erred in not finding trial counsel ineffective.” Appellant’s brief at 1.
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Appellant claims that he was promised that he would receive six to twelve
months imprisonment, rendering his plea infirm since his sentence was in
excess of that term. Additionally, Appellant avers that he was never advised
about consecutive sentencing and that his aggregate maximum sentence
could be more than the maximum sentence outlined as to each offense.
Initially, we note that our “standard of review of the denial of a PCRA
petition is limited to examining whether the evidence of record supports the
court’s determination and whether its decision is free of legal error.”
Commonwealth v. Smith, 121 A.3d 1049, 1052 (Pa.Super. 2015).
Appellant avers that plea counsel was ineffective. “To plead and prove
ineffective assistance of counsel a petitioner must establish: (1) that the
underlying issue has arguable merit; (2) counsel's actions lacked an
objective reasonable basis; and (3) actual prejudice resulted from counsel's
act or failure to act.” Commonwealth v. Stewart, 84 A.3d 701, 706
(Pa.Super. 2013) (en banc). The failure to meet any of these aspects of the
ineffectiveness test results in the claim failing. Id. A determination as to
whether the facts asserted present a claim of arguable merit is a legal one.
Id. It is presumed that counsel renders effective representation. Id.
Additionally, “[a]llegations 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.” Commonwealth
v. Moser, 921 A.2d 526, 531 (Pa.Super. 2007) (citation omitted).
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Herein, Appellant’s first position is that he was promised a total
sentence of six to twelve months incarceration in connection with the plea
entered at the four cases. However, the PCRA court specifically found “the
testimony of trial counsel, Joseph J. Yeager, Esquire, credible, and further
find that he never promised the Defendant that he would receive a particular
sentence.” Trial Court Opinion, 7/15/15, at 6. “The PCRA court's credibility
determinations, when supported by the record, are binding” for purposes of
appellate review. Commonwealth v. Watkins, 108 A.3d 692, 701 (Pa.
2014). The PCRA court’s credibility determination is supported by the
transcript of the plea colloquy, where Appellant acknowledged that there was
no sentencing agreement. Hence, we are bound by the determination that
Appellant was not promised that he would receive six to twelve months
incarceration, and his guilty plea cannot be withdrawn on this basis.
Appellant’s second position is that he was never informed that his
sentences might be imposed consecutively. Appellant relies upon
Commonwealth v. Persinger, 615 A.2d 1305 (Pa. 1992). In that case,
the defendant pled guilty to nine counts of bad checks and one count of theft
by deception. Persinger was told that he faced a maximum sentence for the
offense of bad checks of two years and a maximum sentence on the theft
charge of five years. It was not communicated to the defendant that each
sentence could be imposed consecutively, and he ultimately was sentenced
to seven and one-half to fifteen years. Thus, while the defendant had been
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instructed as to the maximum sentence for each crime, he had not been
given information about the aggregate sentence that he faced if the
sentences were consecutive. Moreover, Persinger actually received a
maximum sentence that exceeded what had been stated as the maximum
sentence imposed on any offense. In other words, he was told that the
maximum sentence for the most serious offense was five years, yet he
received fifteen years. Thus, the defendant's total sentence was far greater
than the maximum he could have obtained on the highest graded offense.
Since Persinger was unaware of the maximum sentence that he faced and
that was imposed, our High Court permitted him to withdraw his guilty plea.
In the present case, at the colloquy, Appellant was advised that each
offense to which he was pleading guilty carried a maximum sentence of five
years. N.T. Plea, 10/10/13, at 3, 4. The maximum aggregate sentence
actually imposed on Appellant was four years imprisonment, which was less
than what he was apprised that he risked as to each offense when he
tendered his guilty plea. Accordingly, Appellant’s guilty plea is not infirm
under Persinger.
In Commonwealth v. Carter, 656 A.2d 463, 466 (Pa. 1995), the
defendant invoked Persinger since he was not warned that each sentence
could be imposed consecutively as to the multiple offenses to which he pled
guilty. However, the maximum aggregate sentence that was imposed on
Carter was less than the maximum sentence that he was notified that he
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faced as to one of the offenses. Thus, the sentence actually imposed on
Carter was less than the minimum/maximum sentence that he was told that
he risked on one crime.
The Carter court distinguished Persinger and refused to permit
Carter to withdraw his guilty plea since he was aware that he could have
received the sentence actually imposed. Herein, Appellant knew that he
faced a term of five years incarceration as a maximum sentence and the
maximum aggregate sentence imposed was less than that amount of time.
Carter rather than Persinger applies in this case, and Appellant cannot
withdraw his guilty plea even though he was not informed about consecutive
sentencing.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/5/2016
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