J-S30029-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
SABRIEL R. RIVERA
Appellant No. 1938 MDA 2016
Appeal from the PCRA Order November 2, 2016
In the Court of Common Pleas of Dauphin County
Criminal Division at No(s): CP-22-CR-0005350-2013
BEFORE: SHOGAN, J., RANSOM, J., and MUSMANNO, J.
MEMORANDUM BY RANSOM, J.: FILED JUNE 27, 2017
Appellant, Sabriel R. Rivera, appeals from the order entered November
2, 2016, denying his petition for collateral relief filed under the Post
Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.
We adopt the following statement of facts from the PCRA court’s
opinion, which in turn is supported by the record. See PCRA Court Opinion
(PCO), 11/2/16, at 1-2. In July 2013, Appellant was charged with five
counts of possession with intent to deliver a controlled substance, one count
of conspiracy to deliver a controlled substance, and one count of corrupt
organizations.1 In October 2014, a federal district judge sentenced
Appellant to seventy months of incarceration for bank robbery.2 In January
____________________________________________
1
See 35 P.S. § 780-113(a)(30), 18 Pa.C.S. §§ 903, 911(b)(3), respectively.
2
18 U.S.C. § 2113(a).
J-S30029-17
2015, Appellant entered a negotiated guilty plea in the instant matter and
was sentenced as follows:
Counts 1-4: twenty four to forty-eight months of incarceration,
to run concurrent with each other and consecutive to the federal
sentence;
Count 5: forty-eight to ninety-six months of incarceration,
concurrent with counts six and seven and the federal sentence;
Count 6: forty-eight to ninety-six months of incarceration,
concurrent with counts five and seven and the federal sentence;
County 7: thirty-six to ninety-six months of incarceration,
concurrent with counts five and six and the federal sentence.
Appellant did not pursue a direct appeal. In October 2015, he timely filed a
motion seeking PCRA relief. Counsel was appointed and filed an amended
petition on Appellant’s behalf, averring that PCRA counsel was ineffective for
failure to inform Appellant of the consequences of his guilty plea and failure
to provide Appellant with discovery documents. The court held an
evidentiary hearing at which both Appellant and trial counsel, Damian
DeStefano, testified.
Appellant testified that he did not have the opportunity to review
discovery documents with counsel prior to the guilty plea. See Notes of
Testimony (N.T.), 5/23/16, at 8. However, he admitted that counsel gave
him a CD containing discovery materials. Id. Appellant also claimed he
thought he would receive a six to twelve year sentence, and that his
attorney did not advise him of the possibility of parole revocation. Id. at 9,
12. Appellant never filed a motion to withdraw his guilty plea. Id. at 18.
-2-
J-S30029-17
Plea counsel Damian DeStefano testified that while he was aware of
the federal charges against Appellant, he was not aware that Appellant was
on state parole. See N.T., 5/23/16, at 26-27. He did not discuss state
parole with Appellant. Id. Due to the nature of the charges Appellant
faced, Mr. DeStefano was primarily concerned with obtaining sentence time
concurrent to Appellant’s federal sentence. Id. at 27. Mr. DeStefano was
unaware of any possibility of Appellant’s parole being revoked, was never in
contact with Appellant’s parole agent, and did not discuss parole revocation
with Appellant’s appointed federal defender. Id. at 29-31.
On appeal, Appellant raises the following issues for our review:
Did the PCRA court err in denying [Appellant’s] PCRA motion
when: (1) counsel failed to inform [Appellant] of the possibility
of a parole revocation following his guilty plea, and (2) counsel
failed to provide [Appellant] with his discovery documents before
entering his guilty plea?
Appellant’s Brief at 4 (unnecessary capitalization omitted).
We review an order denying a petition under the PCRA to determine
whether the findings of the PCRA court are supported by the evidence of
record and free of legal error. Commonwealth v. Ragan, 923 A.2d 1169,
1170 (Pa. 2007). We afford the court’s findings deference unless there is no
support for them in the certified record. Commonwealth v. Brown, 48
A.3d 1275, 1277 (Pa. Super. 2012) (citing Commonwealth v. Anderson,
995 A.2d 1184, 1189 (Pa. Super. 2010)).
Appellant claims that counsel was ineffective in his representation at
the guilty plea stage. See Appellant’s Brief at 8. First, Appellant claims that
-3-
J-S30029-17
he was not informed of the collateral consequences of his plea, and would
not have pleaded guilty had he known his state parole would have been
revoked. Id. at 10-11. Second, Appellant claims that counsel was
ineffective for failure to provide him with his discovery materials.
We presume counsel is effective. Commonwealth v. Washington,
927 A.2d 586, 594 (Pa. 2007). To overcome this presumption and establish
the ineffective assistance of counsel, a PCRA petitioner must prove, by a
preponderance of the evidence that: “(1) the underlying legal issue has
arguable merit; (2) counsel’s actions lacked an objective reasonable basis;
and (3) actual prejudice befell the petitioner from counsel’s act or omission.”
Commonwealth v. Johnson, 966 A.2d 523, 533 (Pa. 2009) (citations
omitted). “A petitioner establishes prejudice when he demonstrates that
there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different. Id. A claim
will be denied if the petitioner fails to meet any one of these requirements.
Commonwealth v. Springer, 961 A.2d 1262, 1267 (Pa. Super. 2008)
(citing Commonwealth v. Natividad, 938 A.2d 310, 322 (Pa. 2007));
Commonwealth v. Jones, 942 A.2d 903, 906 (Pa. Super. 2008).
We review allegations of counsel’s ineffectiveness in connection with a
guilty plea as follows:
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
-4-
J-S30029-17
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 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 plea was
entered knowingly and voluntarily, this Court considers the totality of the
circumstances surrounding the plea. Commonwealth v. Flanagan, 854
A.2d 489, 513 (Pa. 2004).
First, Appellant argues that counsel was ineffective for failure to advise
him of the collateral consequences of his plea, namely, that his parole could
be revoked following his guilty plea. See Appellant’s Brief at 10-11. He
avers that he would not have pleaded guilty had he known he would serve
additional time. Id. at 11-13. Accordingly, Appellant contends his plea was
not knowing, intelligent and voluntary. Id. at 12.
Our Court has previously held that
[o]nce a guilty plea has been entered and sentence imposed, the
plea may be withdrawn only upon a showing of manifest
injustice, which may be established if the plea was not
voluntarily or knowingly entered. However, the appellate courts
of the Commonwealth consistently have ruled that a defendant's
lack of knowledge of collateral consequences to the entry of a
guilty plea does not render a plea unknowing or involuntary.
Probation revocation proceedings in an unrelated criminal action
do not involve sentencing consequences of pleading guilty in the
-5-
J-S30029-17
action at issue. Thus, we hold that the possibility of probation
revocation is a collateral consequence to a guilty plea, and the
fact that a defendant was not informed that he faces such a
possibility in an unrelated criminal case does not undermine the
validity of the plea.
Commonwealth v. Brown, 680 A.2d 884, 887 (Pa. Super. 1996) (internal
citations and quotations omitted); see also Barndt, 74 A.3d at 196 (noting
that parole revocation is a collateral consequence, and that parole
recommitment additional to a new sentence is also a collateral
consequence). Further, our Court has held that while counsel’s affirmative
misrepresentation may constitute ineffective assistance, the failure to advise
a client regarding collateral consequences does not. See Commonwealth
v. Abraham, 62 A.3d 343, 352-53 (Pa. 2012); see also Barndt, 74 A.3d at
196, 200-01 (noting that when dealing with collateral consequences of a
guilty plea, counsel’s sins of omission must be treated differently than his
sins of commission).
Here, Appellant makes no argument that counsel gave him incorrect
advice regarding the collateral consequences of his plea. Trial counsel
credibly testified that he did not have a conversation with Appellant about
parole revocation and was unaware Appellant was on state parole. Indeed,
Appellant’s admission that he never had a conversation with trial counsel
about the possibility of revocation corroborates this testimony. Accordingly,
as the failure to advise a client of the collateral consequences of a guilty plea
does not constitute ineffective assistance of counsel, the court did not err in
-6-
J-S30029-17
dismissing Appellant’s petition. See Abraham, 62 A.3d at 352-53; Barndt,
74 A.3d at 196; Ragan, 923 A.2d at 1170.
Finally, Appellant claims that counsel’s failure to provide him with
discovery materials resulted in the entry of a plea that was not knowing,
intelligent, and voluntary. Although Appellant cites to testimony of the
record in support of his contentions, he offers absolutely no legal authority
to support his claims. Nor has Appellant identified the discovery that he was
not able to access. Accordingly, he has waived this claim for purposes of
appeal. See Pa.R.A.P. 2119(a)-(c); see also Commonwealth v. Knox, 50
A.3d 732, 748 (Pa. Super. 2012) (“[T]he argument portion of an appellate
brief must be developed with a pertinent discussion of the point which
includes citations to the relevant authority.”) Finally, even if not waived,
this contention is meritless. Appellant received the discovery from trial
counsel. See N.T., 5/23/16, at 8, 26.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/27/2017
-7-