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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
JAVIER HUMBERTO TORO
Appellant No. 752 EDA 2015
Appeal from the PCRA Order February 17, 2015
In the Court of Common Pleas of Lehigh County
Criminal Division at No(s): CP-39-CR-0001159-2013,
CP-39-CR-0004647-2012, CP-39-CR-0004650-2012,
CP-39-CR-0004656-2012
BEFORE: BENDER, P.J.E., LAZARUS, J., and STEVENS, P.J.E.*
MEMORANDUM BY LAZARUS, J.: FILED FEBRUARY 26, 2016
Javier Humberto Toro1 appeals from the order of the Court of Common
Pleas of Lehigh County dismissing his petition filed pursuant to the Post
Conviction Relief Act (“PCRA”), 42 Pa.C.S.A §§ 9541-9546. After careful
review, we affirm.
On September 19, 2013, Toro entered an open plea of guilty to two
separate counts of robbery (F1), and one count each of theft by unlawful
taking, simple assault, disorderly conduct, and driving under suspension.
____________________________________________
*
Former Justice specially assigned to the Superior Court.
1
Portions of the trial court record refer to the appellant as “Javier Toro
Delgado.” Our docket reflects his name as “Javier Humberto Toro” and that
is the name used herein.
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The Commonwealth agreed that Toro’s sentences would run concurrently to
one another. On November 4, 2013, the trial court sentenced Toro to
concurrent terms of ten to twenty years’ imprisonment on the robbery
convictions, as well as concurrent terms of 1 to 2 years for theft by unlawful
taking, 1 to 2 years for simple assault, and 90 days on the summary count
of disorderly conduct. Toro filed a motion for reconsideration of sentence,
which was denied on November 14, 2013. Toro did not file a direct appeal.
On October 31, 2014, Toro filed a pro se PCRA petition. The court
appointed counsel, who filed an amended petition on December 24, 2014.
Toro claimed that plea counsel’s ineffectiveness caused him to enter an
involuntary guilty plea. A hearing was held on February 6, 2015, at which
Toro and his plea counsel, Steven Mills, Esquire, testified. By order dated
February 17, 2015, the court dismissed Toro’s PCRA petition. This timely
appealed followed, in which Toro raises the following issue for our review:
Whether the trial court erred in denying [Toro’s] petition for
post-conviction relief when credible testimony was presented
indicating that [plea counsel] unlawfully induced [Toro] to plead
guilty by promising him a five and one-half to eleven year
sentence?
Brief of Appellant, at 4.
Our standard and scope of review for the denial of a PCRA petition is
well-settled. We review the PCRA court’s findings of fact to determine
whether they are supported by the record, and review its conclusions of law
to determine whether they are free from legal error. Commonwealth v.
Spotz, 84 A.3d 294, 311 (Pa. 2014). The scope of our review is limited to
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the findings of the PCRA court and the evidence of record, viewed in the light
most favorable to the prevailing party at the trial level. Id.
Toro’s claim raises the ineffectiveness of counsel. To establish
counsel’s ineffectiveness, a petitioner must demonstrate: (1) the underlying
claim has arguable merit; (2) counsel had no reasonable basis for the course
of action or inaction chosen; and (3) counsel’s action or inaction prejudiced
the petitioner. Commonwealth v. Burno, 94 A.3d 956, 964 n.5 (Pa.
2014); Strickland v. Washington, 466 U.S. 668 (1984).
A failure to satisfy any prong of the ineffectiveness test requires
rejection of the claim. The burden of proving ineffectiveness
rests with the Appellant. To sustain a claim of ineffectiveness,
Appellant must prove that the strategy employed by trial counsel
was so unreasonable that no competent lawyer would have
chosen that course of conduct. Trial counsel will not be deemed
ineffective for failing to pursue a meritless claim.
Commonwealth v. Rega, 933 A.2d 997, 1019 (Pa. 2007).
Toro asserts that he entered an involuntary plea. In order to
determine whether a defendant entered a plea knowingly, intentionally, and
voluntarily, we must examine the plea colloquy. At a minimum, a plea
colloquy must inform a defendant of: (1) the nature of the charges; (2) the
factual basis for the plea; (3) the right to be tried by a jury; (4) the
presumption of innocence; (5) the permissible range of sentences; and (6)
the fact that the judge is not bound by the terms of any plea agreement.
Commonwealth v. Bedell, 954 A.2d 1209, 1212 (Pa. Super. 2008). The
adequacy of the plea colloquy and the voluntariness of the resulting plea
must be ascertained based on the totality of the circumstances surrounding
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the entry of the plea. Commonwealth v. Muhammad, 794 A.2d 378, 383-
84 (Pa. Super. 2002). During the course of a plea colloquy, a defendant has
a duty to answer questions truthfully and cannot later assert that he lied
under oath. Commonwealth v. Turetsky, 925 A.2d 876 (Pa. Super.
2007).
Here, Toro claims that counsel was ineffective for coercing him to
plead guilty based upon counsel’s assurance that Toro would receive a
sentence of five and a half to eleven years’ incarceration. At the PCRA
hearing, both Toro and his mother testified that counsel made this promise
to them both on multiple occasions. Upon review of the record, Toro’s claim
is meritless.
At the PCRA hearing, Attorney Mills testified he informed Toro that the
Commonwealth would request a sentence of seven years of incarceration
and that the only agreement reached with the Commonwealth was that all
sentences imposed would run concurrently. Attorney Mills also testified that
he advised Toro as to the possible maximum sentence he could receive.
Lastly, Attorney Mills stated that he did not discuss possible sentences with
any of Toro’s family members. The PCRA court credited Attorney Mills’
testimony.
Moreover, our review of the sentencing proceedings indicates that
Toro knowingly, intelligently, and voluntarily pled guilty. The court
explained to Toro that there was no agreement as to the length of his
sentence, other than they would run concurrently. Toro confirmed his
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understanding of this. Toro also responded in the affirmative when asked if
he was satisfied with Attorney Mills’ work. The court recited the rights Toro
would be giving up by entering a guilty plea and Toro indicated that he
understood. He responded in the negative when asked if there were any
promises made to him to coerce him to plead guilty. After listening to the
facts as the district attorney stated them, Toro admitted committing each
offense and agreed that the facts as stated by the assistant district attorney
were accurate. Toro acknowledged the maximum penalties for the offenses
to which he was pleading guilty. Lastly, Toro read and signed a written plea
colloquy and acknowledged to the court that he understood the document.
The court concluded that Toro’s guilty plea was knowingly, intelligently, and
voluntarily made. Id. at 23-24.
In sum, Toro’s claim that he entered an involuntary plea is clearly
belied by the testimony of plea counsel, Toro’s own statements under oath,
and the trial court’s thorough and comprehensive written and oral plea
colloquies. Toro cannot prevail on an ineffectiveness claim simply because
he did not receive the sentence he had hoped to receive. Accordingly, the
PCRA court properly denied relief.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/26/2016
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