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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT
OF PENNSYLVANIA
v.
ANDRE GOFF,
Appellant No. 775 EDA 2017
Appeal from the PCRA Order January 24, 2017
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0005044-2013
BEFORE: GANTMAN, P.J., OLSON AND DUBOW, JJ.
MEMORANDUM BY OLSON, J.: FILED MARCH 13, 2018
Appellant, Andre Goff, appeals pro se from the January 24, 2017 order
dismissing his first petition filed pursuant to the Post-Conviction Relief Act
(“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. We affirm.
The factual background and procedural history of this case are as
follows. On January 20, 2013, Appellant fired several shots near 59th Street
in Philadelphia, Pennsylvania. When police arrested him, they recovered a .40
caliber handgun with an altered serial number. On April 26, 2013, the
Commonwealth charged Appellant via criminal information with possession of
a firearm by a prohibited person,1 carrying a firearm without a license,2
1 18 Pa.C.S.A. § 6105(a)(1).
2 18 Pa.C.S.A. § 6106(a)(1).
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carrying a firearm on the streets of Philadelphia,3 recklessly endangering
another person,4 and possessing a firearm with an altered serial number.5 On
December 22, 2014, Appellant pled guilty to all five offenses. On June 4,
2015, the trial court sentenced him to an aggregate term of five to ten years’
imprisonment followed by five years’ probation. Appellant did not file a direct
appeal.
Appellant filed a timely pro se PCRA petition and counsel was appointed.
PCRA counsel moved to withdraw with an accompanying letter pursuant to
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). On December 19, 2016,
the PCRA court issued notice of its intent to dismiss the petition without an
evidentiary hearing. See Pa.R.Crim.P. 907. After receiving Appellant’s
response to the Turner/Finley letter, the PCRA court granted PCRA counsel’s
motion to withdraw and dismissed the petition on January 24, 2017. This
timely appeal followed.6
Appellant presents two issues for our review:
3 18 Pa.C.S.A. § 6108.
4 18 Pa.C.S.A. § 2705.
5 18 Pa.C.S.A. § 6110.2(a).
6 On March 1, 2017, the PCRA court ordered Appellant to file a concise
statement of errors complained of on appeal (“concise statement”). See
Pa.R.A.P. 1925(b). On March 16, 2017, Appellant filed his concise statement.
On April 25, 2017, the PCRA court issued its Rule 1925(a) opinion. Both of
Appellant’s issues were included in his concise statement.
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1. [In light of plea counsel’s ineffectiveness, was Appellant’s guilty
plea knowing and intelligent?
2. Did plea counsel render ineffective assistance by not arguing
that the Commonwealth failed to prove that the firearm’s serial
number was altered?]
Appellant’s Brief at 2.
“We review the denial of a PCRA [p]etition to determine whether the
record supports the PCRA court’s findings and whether its [o]rder is otherwise
free of legal error.” Commonwealth v. McGarry, 172 A.3d 60, 65 (Pa.
Super. 2017) (citation omitted). Although not phrased as such, both of
Appellant’s issues challenge the effectiveness of his plea counsel.
“[T]he Sixth Amendment to the United States Constitution and Article I,
[Section] 9 of the Pennsylvania Constitution, [entitle a defendant] to effective
counsel. This right is violated where counsel’s performance so undermined
the truth-determining process that no reliable adjudication of guilt or
innocence could have taken place.” Commonwealth v. Simpson, 112 A.3d
1194, 1197 (Pa. 2015) (internal quotation marks and citation omitted). “In
the context of a plea, a claim of ineffectiveness may provide relief only if the
alleged ineffectiveness caused an involuntary or unknowing plea.”
Commonwealth v. Orlando, 156 A.3d 1274, 1281 (Pa. Super. 2017)
(citation omitted).
“Counsel is presumed to have been effective.” Commonwealth v.
Andrews, 158 A.3d 1260, 1263 (Pa. Super. 2017). To prevail on an
ineffective assistance of counsel claim, a “petitioner must plead and prove
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that: (1) the underlying legal claim is of arguable merit; (2) counsel’s action
or inaction lacked any objectively reasonable basis designed to effectuate his
[or her] client’s interest; and (3) prejudice, to the effect that there was a
reasonable probability of a different outcome if not for counsel’s error.”
Commonwealth v. Grove, 170 A.3d 1127, 1138 (Pa. Super. 2017) (citation
omitted). “Failure to satisfy any prong of the test will result in rejection of the
[petitioner’s] ineffective assistance of counsel claim.” Commonwealth v.
Smith, 167 A.3d 782, 787-788 (Pa. Super. 2017) (citation omitted).
Appellant argues that his plea counsel’s ineffectiveness in two respects
caused him to enter an unknowing and/or unintelligent plea. First, he argues
that plea counsel failed to notify him of a plea agreement which would have
resulted in an aggregate sentence of five to ten years’ imprisonment. Even if
plea counsel failed to notify Appellant of this plea offer, he is unable to show
prejudice as he was sentenced to an aggregate term of five to ten years’
imprisonment – the same sentence included in the plea offer.7
Appellant also argues that plea counsel was ineffective for not objecting
to the mandatory minimum sentence as violating Alleyne v. United States,
133 S.Ct 2151 (2013). The record shows, however, that Appellant did not
receive a mandatory minimum sentence. See Sentencing Order, 6/4/15, at
7 Appellant does not argue that he was prejudiced as a result of the
probationary tail at the end of the sentence. Instead, he makes clear that he
was only concerned with the amount of prison time he received. See
Appellant’s Brief at 7 (noting his concern was with the amount of “real time
he would receive”).
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3-5 (checking the “no” box when asked whether sentences were mandatory
minimums); see generally N.T., 6/4/15 (never mentioning mandatory
minimum during sentencing). Hence, Appellant’s underlying claim lacks
arguable merit.
In his second issue, Appellant argues that plea counsel was ineffective
for not challenging the sufficiency of the evidence with respect to the
possession of a firearm with an altered serial number charge. This argument
is without merit. It is axiomatic that the Commonwealth is not required to
prove the sufficiency of the evidence at a guilty plea hearing. Instead, the
Commonwealth only avers what evidence it would have presented at trial and
the defendant must concede the facts are true and sufficient to prove the
crime(s) he is accused of committing. In his written guilty plea colloquy,
Appellant acknowledged that he understood the elements of the possession of
a firearm with an altered serial number charge and that he was guilty of that
offense. Written Guilty Plea Colloquy, 12/22/14, at 3; see also N.T.,
12/22/14, at 38-39 (Commonwealth outlining facts supporting alteration of a
serial number charge and Appellant agreeing that those facts were correct).
Therefore, Appellant’s underlying claim lacks arguable merit.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/13/18
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