J-S64006-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF
PENNSYLVANIA
v.
NGOC HUONG LE
Appellant No. 662 MDA 2017
Appeal from the PCRA Order March 29, 2017
In the Court of Common Pleas of Lebanon County
Criminal Division at No(s): CP-38-CR-0000812-2014
BEFORE: PANELLA, J., SHOGAN, J., and FITZGERALD, J.
MEMORANDUM BY PANELLA, J. FILED DECEMBER 04, 2017
Appellant, Ngoc Huong Le, appeals from the order entered in the
Lebanon County Court of Common Pleas, which dismissed her petition filed
pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-
9546. We affirm.
The relevant facts and procedural history of this case are as follows. On
December 18, 2014, Appellant pled guilty to one count each of criminal
attempt – possession with intent to deliver, possession with intent to deliver,
criminal use of a communication facility, possession of controlled substance,
and possession of drug paraphernalia.1 Pursuant to the terms of a plea
____________________________________________
Former Justice specially assigned to the Superior Court.
118 Pa.C.S.A. § 901(a), 35 P.S. § 780-113(a)(30), 18 Pa.C.S.A. § 7512(a),
35 P.S. § 780-113(a)(16), and 35 P.S. § 780-113(a)(32), respectively.
J-S64006-17
agreement, Appellant was sentenced to a term of one to three years’
imprisonment. Appellant did not file a direct appeal. However, she filed a
timely pro se PCRA petition on February 19, 2016.
After the PCRA court appointed counsel, Appellant filed an amended
petition. Through her amended petition, Appellant alleged ineffective
assistance of pre-trial counsel. Specifically, Appellant averred that pre-trial
counsel assured her that her sentence would run concurrent to an anticipated
future sentence for a state parole violation. As Appellant did not receive a
concurrent sentence for her state parole violation, she argued her guilty plea
was unknowingly entered and involuntarily induced.
The PCRA court held hearings on Appellant’s claims. Appellant testified
that Attorney Adams from the Lebanon County Public Defender’s office
represented her from the date of her preliminary hearing until October 2014.
See N.T., PCRA Hearing, 8/29/16, at 6. In exploring Appellant’s options, both
Appellant and Attorney Adams understood that Appellant’s state parole status
at the time of her arrest would trigger a violation hearing, and additional
prison time, for receiving new charges. See id., at 7. However, Appellant
claimed that Attorney Adams assured her that if Appellant accepted the
Commonwealth’s guilty plea offer of one to three years’ imprisonment, this
time would run concurrently with any time received for violating her state
parole. See id., at 7, 8. Based upon this information, Appellant turned down
an offer of rehabilitation and accepted the Commonwealth’s plea offer by
-2-
J-S64006-17
signing a written guilty plea colloquy on September 15, 2014. See id., at 7,
11. Appellant did not provide any additional evidence in support of her claims.
In response, Attorney Adams confirmed that she represented Appellant
through guilty plea negotiations. See N.T., PCRA Hearing, 10/20/16, at 4-6.
However, though Attorney Adams confirmed that while she would have
discussed the state parole violation with Appellant, she would have never
promised that the instant charges would run concurrent because the State
Parole Board, rather than the trial court, would have had control over that
aspect of sentencing. See id., at 6. Further, Attorney Adams noted that if any
agreement to consecutive or concurrent time had taken place, she would have
noted it on the written guilty plea agreement—and she did not. See id., at 8.
The Commonwealth also presented the testimony of Appellant’s guilty
plea counsel, Attorney Judd. Attorney Judd testified that she was not aware
of any stipulation at the time of Appellant’s guilty plea that her sentence was
to run concurrently with any state parole sentence. See id., at 19-20. Further,
if there was an agreement to this effect, Attorney Judd explained that she
would have expected to see this noted on the written guilty plea colloquy and
in the oral colloquy at sentencing. See id., at 21. However, neither the written
guilty plea colloquy or oral colloquy contained any mention of a concurrent
parole violation sentence. See id.
The PCRA court denied Appellant’s petition. This timely appeal follows.
Appellant presents the following question for our review.
-3-
J-S64006-17
1. Whether [guilty p]lea [c]ounsel was ineffective for advising
Appellant of inaccurate information regarding her sentence,
thereby causing her to enter into a plea that was unknowing,
unintelligent, and involuntary.
Appellant’s Brief, at 4.
“On appeal from the denial of PCRA relief, our standard and scope of
review is limited to determining whether the PCRA court’s findings are
supported by the record and without legal error.” Commonwealth v.
Edmiston, 65 A.3d 339, 345 (Pa. 2013) (citation omitted). The PCRA court’s
findings will not be disturbed unless the certified record lacks support for the
findings. See Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super.
2001). “Further, the PCRA court’s credibility determinations are binding on
this Court, where there is record support for those determinations.”
Commonwealth v. Anderson, 995 A.2d 1184, 1189 (Pa. Super. 2010)
(citation omitted).
In order to be eligible for PCRA relief, the petitioner must
prove by a preponderance of the evidence that his conviction or
sentence resulted from one or more of the enumerated
circumstances found in Section 9543(a)(2), which included the
ineffective assistance of counsel.
It is well-established that counsel is presumed effective, and
to rebut that presumption, the PCRA petitioner must demonstrate
that counsel’s performance was deficient and that such deficiency
prejudiced him. To prevail on an ineffectiveness claim, the
petitioner had the burden to prove that (1) the underlying
substantive claim has arguable merit; (2) counsel whose
effectiveness is being challenged did not have a reasonable basis
for his or her actions or failure to act; and (3) the petitioner
suffered prejudice as a result of counsel’s deficient performance.
The failure to satisfy any one of the prongs will cause the entire
claim to fail.
-4-
J-S64006-17
Commonwealth v. Benner, 147 A.3d 915, 919-920 (Pa. Super. 2016)
(quotation marks and citations omitted).
Allegations of counsel’s ineffectiveness during the guilty plea process
are cognizable under the PCRA. See Commonwealth v. Hickman, 799 A.2d
136, 141 (Pa. Super. 2002). However, “[a]llegations of ineffectiveness in
connection with the entry of a guilty plea will serve as the basis for relief only
if the ineffectiveness caused the defendant to enter an involuntary or
unknowing plea.” Commonwealth v. Allen, 833 A.2d 800, 802 (Pa. 2003)
(citation omitted).
Appellant’s claim rests upon her contention that Attorney Adams
promised that her sentence would run concurrent to her state parole violation
sentence. Attorney Adams denied making any such promise. Additionally, both
Attorney Adams and Attorney Judd testified that any agreement for concurrent
sentencing would have been noted in the written guilty plea colloquy, and that
no such notation exists.
In ruling against Appellant, the PCRA court accepted counsel’s testimony
as credible and accurate and squarely rejected Appellant’s version of events.
See PCRA Court Opinion, 3/30/17, at 9. As this credibility determination is
supported by the testimony of record, we are bound by those determinations.
See Anderson, 995 A.2d at 1189.
Appellant has failed to demonstrate there is arguable merit to the
underlying claim of ineffectiveness. Therefore, there is no basis to conclude
-5-
J-S64006-17
that ineffective assistance of counsel caused her to enter an involuntary guilty
plea.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/4/2017
-6-