J-S06027-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ANTHONY MICHAEL BISAZZA
Appellant No. 1284 MDA 2015
Appeal from the Order Entered July 15, 2015
In the Court of Common Pleas of Lancaster County
Criminal Division at No(s): CP-36-CR-0001046-2013
BEFORE: PANELLA, J., MUNDY, J., and STEVENS, P.J.E.*
MEMORANDUM BY MUNDY, J.: FILED FEBRUARY 17, 2016
Appellant, Anthony Michael Bisazza, appeals from the July 15, 2015
order denying his first petition for relief filed pursuant to the Post Conviction
Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. After careful review, we
affirm.
The PCRA court summarized the procedural history of this case as
follows.
On March 15, 2013, the Commonwealth filed
Criminal Information No. 1046-2013, which charged
[Appellant] with four counts: Count 1, Burglary (F1);
Count 2, Criminal Conspiracy (Burglary) (F1); Count
3, Theft by Unlawful Taking (F2); and Count 4,
Person Not to Possess a Firearm (F2).1 [At the time
of his arrest in this case, Appellant was on parole in
an unrelated case. As a result, the Pennsylvania
Board of Probation and Parole lodged a detainer
against Appellant based on the new charges.]
*Former Justice specially assigned to the Superior Court.
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On November 6, 2013, [Appellant] appeared
before the Honorable Judge Louis J. Farina and
entered a guilty plea to all four counts. Pursuant to
a negotiated plea agreement, [Appellant] received a
sentence of three to six years[’] incarceration in the
State Correctional Institution on Count 1 (Burglary),
three to six years[’] incarceration on Count 2
(Criminal Conspiracy – Burglary) to run concurrently
with Count 1, four to eight years[’] incarceration on
Count 3 (Theft by Unlawful Taking) to run
consecutive to Counts 1 and 2, and five to ten
years[’] incarceration on Count 4 (Person Not to
Possess a Firearm) to run concurrently with all other
counts. The aggregate sentence was 7 to 14 years
of incarceration.
On December 1, 2014, [Appellant] filed a pro
se PCRA Motion. Thereafter, on December 2, 2014,
[the PCRA] [c]ourt appointed Vincent J. Quinn,
Esquire, as counsel to represent [Appellant] in his
PCRA Motion. Counsel was granted 60 days to file
an amended petition.
On February 27, 2015, PCRA counsel filed an
Amended PCRA Motion, requesting a hearing to
address allegations that trial counsel rendered
ineffective assistance of counsel such that no reliable
adjudication of guilt or innocence could have taken
place. More specifically, the Amended Motion alleged
that trial counsel incorrectly advised [Appellant] the
sentence on docket number 1046-2013 would run
concurrently with any re-commitment [Appellant]
would receive on his state parole violation setback,
and [Appellant] pleaded guilty based on said
representation.
On May 13, 2015, the [PCRA] [c]ourt
conducted an evidentiary hearing to address
[Appellant’s] Amended PCRA Motion. … Thereafter,
on July 15, 2015, the [PCRA] [c]ourt issued an
opinion and order dismissing [Appellant’s] Amended
PCRA Motion, finding that [Appellant] failed to meet
his burden of proving that counsel was ineffective, or
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that the alleged ineffectiveness caused him to enter
into an unknowing or involuntary guilty plea.
1
18 Pa. C.S.A. § 3502(a)(2); 18 Pa. C.S.A.
§ 903(a); 18 Pa. C.S.A. § 3921(a); and 18 Pa.
C.S.A. § 6105(a)(1), respectively.
PCRA Court Opinion, 8/19/15, at 1-3 (citations and footnote omitted). On
July 24, 2015, Appellant filed a timely notice of appeal with this Court. 1
On appeal, Appellant presents the following issue for our review.
Whether the [PCRA] court erred in denying the
[Appellant’s] amended PCRA [petition] when
[Appellant] was denied his right to the effective
assistance of counsel when his counsel failed to
advise him that by operation of law his state parole
recommitment was required to be served
consecutively to his aggregate sentence of seven to
fourteen years[?]
Appellant’s Brief at 4.
We review an appeal from the denial of PCRA relief according to the
following principles.
Our standard of review of the denial of a PCRA
petition is limited to examining whether the court’s
rulings are supported by the evidence of record and
free of legal error. This Court treats the findings of
the PCRA court with deference if the record supports
those findings. It is an appellant’s burden to
persuade this Court that the PCRA court erred and
that relief is due.
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1
Appellant and the PCRA court have complied with Pennsylvania Rule of
Appellate Procedure 1925.
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Commonwealth v. Feliciano, 69 A.3d 1270, 1274-1275 (Pa. Super. 2013)
(citation omitted).
[Our] scope of review is limited to the findings of the
PCRA court and the evidence of record, viewed in the
light most favorable to the prevailing party at the
PCRA court level. The PCRA court’s credibility
determinations, when supported by the record, are
binding on this Court. However, this Court applies a
de novo standard of review to the PCRA court’s legal
conclusions.
Commonwealth v. Medina, 92 A.3d 1210, 1214-1215 (Pa. Super. 2014)
(en banc) (internal quotation marks and citations omitted), appeal granted,
105 A.3d 658 (Pa. 2014). Further, in order to be eligible for PCRA relief, a
petitioner must plead and prove by a preponderance of the evidence that his
conviction or sentence arose from one or more of the errors listed at
Section 9543(a)(2) of the PCRA. 42 Pa.C.S.A. § 9543(a)(2). These errors
include ineffectiveness of counsel. Id. § 9543(a)(2)(ii). The issues raised in
a PCRA petition must be neither previously litigated nor waived. Id.
§ 9543(a)(3).
In his PCRA petition, Appellant alleges ineffective assistance of trial
counsel in his guilty plea proceeding. When reviewing a claim of
ineffectiveness, we apply the following test, first articulated by our Supreme
Court in Commonwealth v. Pierce, 527 A.2d 973 (Pa. 1987).
[C]ourts presume that counsel was effective, and
place upon the appellant the burden of proving
otherwise. Counsel cannot be found ineffective for
failure to assert a baseless claim.
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To succeed on a claim that counsel was
ineffective, Appellant must demonstrate that: (1) the
claim is of arguable merit; (2) counsel had no
reasonable strategic basis for his or her action or
inaction; and (3) counsel’s ineffectiveness prejudiced
him.
…
[T]o demonstrate prejudice, appellant must
show there is a reasonable probability that, but for
counsel’s error, the outcome of the proceeding would
have been different.
Commonwealth v. Michaud, 70 A.3d 862, 867 (Pa. Super. 2013)
(citations and internal quotation marks omitted). “Failure to establish any
prong of the test will defeat an ineffectiveness claim.” Commonwealth v.
Birdsong, 24 A.3d 319, 329 (Pa. 2011).
The right to the constitutionally effective
assistance of counsel extends to counsel’s role in
guiding his client with regard to the consequences of
entering into a guilty plea.
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.
Thus, to establish prejudice, the defendant
must show that there is a reasonable probability
that, but for counsel's errors, he would not have
pleaded guilty and would have insisted on going to
trial. The reasonable probability test is not a
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stringent one; it merely refers to a probability
sufficient to undermine confidence in the outcome.
Commonwealth v. Barndt, 74 A.3d 185, 192 (Pa. Super. 2013) (citations
and internal quotation marks omitted). “In determining whether a guilty
plea was entered knowingly and intelligently, a reviewing court must review
all of the circumstances surrounding the entry of that plea.”
Commonwealth v. Allen, 732 A.2d 582, 587 (Pa. 1999).
Here, Appellant claims that his counsel was ineffective for failing to
advise him that his sentence in this case would be consecutive to his state
parole violation recommitment.2 Appellant’s Brief at 12-13. Appellant does
not assert that trial counsel affirmatively advised him that his parole
recommitment and new sentence would be concurrent or that trial counsel
“promised a specific recommitment[ on the parole violation.]” Id. at 13.
Nonetheless, Appellant contends that trial counsel’s silence as to whether
the parole recommitment and the new sentence would be concurrent,
combined with counsel’s request that Appellant receive credit for time served
from the date of Appellant’s arraignment in this case, February 11, 2013,
caused Appellant to “reasonably believe[] that the sentences would run
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2
The Parole Board was statutorily required to run Appellant’s parole
revocation sentence consecutively to his sentence on the new charges. 61
Pa.C.S.A. § 6138; see also Walker v. Pa. Bd. of Prob. and Parole, 729
A.2d 634, 638 (Pa. Commw. Ct. 1999) (recognizing “the [Parole] Board may
not impose a parole violation sentence to run concurrently with a new
sentence for an offense committed while on parole[]”) (citation omitted).
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concurrently.” Id. Appellant argues that his plea was not knowing and
voluntary because he entered into it with the belief that the parole
recommitment would run concurrently with his new sentence. Id.
This Court has held that the possibility of parole revocation in an
unrelated criminal case is a collateral consequence of a guilty plea. Barndt,
supra at 195 (citation omitted). Because parole revocation is a collateral
consequence, it follows that the length of the resulting parole recommitment
and whether it runs consecutively to any new sentence are also collateral
consequences. See id. at 198-199 (treating the length of the appellant’s
parole setback as a collateral consequence); see also 61 Pa.C.S.A. § 6138
(providing the Parole Board with the discretion to revoke parole and impose
recommitment). Accordingly, trial counsel’s failure to advise a defendant
of a collateral consequence of his plea is not ineffectiveness.
Commonwealth v. Abraham, 62 A.3d 343, 353 (Pa. 2012); see also
Barndt, supra at 196, 201. In contrast, trial counsel will be deemed
ineffective when he provides an erroneous affirmative representation of
either a direct or a collateral consequence of a plea. See Barndt, supra at
196.
Here, Appellant’s claim fails to meet the first prong of the Pierce test
because it lacks arguable merit. The PCRA court found that “trial counsel
was credible when testifying at the PCRA Hearing that he did not advise
[Appellant] the sentence [in this case] would run concurrently with his state
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parole violation setback.” PCRA Court Opinion, 8/19/15, at 8. The PCRA
court explained as follows.
[T]here was absolutely no testimony or evidence
presented at the PCRA [h]earing to establish that
trial counsel affirmatively misled [Appellant]
regarding a collateral consequence of his guilty plea,
or that trial counsel informed [Appellant] any
sentence he received on the new charges [] would
run concurrently with the state parole violation
setback. Rather, trial counsel specifically denied
ever making such a representation. Moreover, when
asked whether trial counsel gave him such advice,
[Appellant] replied “[h]e didn’t.” [Appellant] simply
stated “I assumed…[.]”
Id. (citations omitted). Further, the PCRA court also found Appellant’s claim
that trial counsel affirmatively gave him misleading advice was not credible
for the following reasons.
[T]he [PCRA] [c]ourt cannot accept [Appellant’s]
assertion that trial counsel’s request for credit on the
new charges from the date of arraignment led to the
understanding or promise that the issue of
concurrency between a parole re-commitment and
the new sentence was ‘taken care of.” At no point
did trial counsel request, nor did the [trial] [c]ourt
reference time credit as it would relate to
[Appellant’s] potential state parole violation setback.
[Appellant’s] erroneous assumption cannot be
transmuted to constitute faulty legal advice by trial
counsel.
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Id. The record supports the PCRA court’s credibility determinations, and
they are binding on this Court.3 See Medina, supra.
Further, Appellant’s argument on appeal admits that trial counsel did
not make any affirmative representation that his parole violation sentence
would be concurrent. Appellant’s Brief at 12-13. Instead, Appellant
contends that trial counsel’s failure to advise him that the parole
recommitment would be consecutive, combined with counsel’s request for
time served, led him to believe that the parole recommitment would be
concurrent. Id. at 13. This is an argument that trial counsel did not advise
Appellant of a collateral consequence of his plea. However, trial counsel had
no obligation to advise Appellant of any collateral consequence of his plea,
and such an omission cannot form the basis of an ineffectiveness claim. See
Abraham, supra; Barndt, supra. Therefore, Appellant’s ineffectiveness
claim does not warrant relief because it lacks arguable merit. See Michaud,
supra; Birdsong, supra.
____________________________________________
3
We note that during the oral guilty plea colloquy, Appellant indicated that
no promises outside of the sentence in the negotiated plea agreement in the
current case were made to him to induce his plea. N.T., 7/15/15, at 9.
Moreover, on the written guilty plea colloquy form, Appellant acknowledged
that any sentence in this case could be consecutive to any other sentence he
was serving. Guilty Plea Colloquy and Post-Sentence Rights, 11/6/13, at 5,
¶ 47. Appellant also recognized that if the guilty plea resulted in a violation
of any probation or parole, it could be revoked, and he could be subject to a
new sentence for the violation. Id. at 5, ¶ 48. Further, at the PCRA
hearing, Appellant testified that trial counsel did not make any statements
that his parole recommitment would run concurrently with his sentence in
this case. N.T., 5/13/15, at 6.
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Based on the foregoing, we conclude that the PCRA court’s denial of
Appellant’s PCRA petition is supported by the record and free of legal error.
See Medina, supra; Feliciano, supra. Accordingly, the PCRA court’s July
15, 2015 order is affirmed.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/17/2016
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