Com. v. Peralta, K.

J-S25010-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KENNETH PERALTA :
:
Appellant : No. 994 MDA 2019

Appeal from the PCRA Order Entered May 28, 2019
In the Court of Common Pleas of Lancaster County Criminal Division at
No(s): CP-36-CR-0004271-2011

BEFORE: LAZARUS, J., DUBOW, J., and KING, J.

MEMORANDUM BY LAZARUS, J.: FILED SEPTEMBER 28, 2020

Kenneth Peralta appeals from the order, entered in the Court of

Common Pleas of Lancaster County, dismissing his petition filed pursuant to

the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. Upon

careful review, we affirm.

The pertinent facts are easily summarized as follows: On
September 17, 2012, Peralta [entered an open guilty plea] to
attempted homicide, robbery, two firearm violations, and retail
theft after he shot a loss prevention officer while trying to flee a
local grocery store with stolen items. On November 19, 2012, the
trial court sentenced him to an aggregate term of 25 to 70 years
of imprisonment. Peralta filed a timely appeal to this Court
following the denial of his post-sentence motion, and we affirmed
his judgment of sentence in an unpublished memorandum filed on
October 31, 2013. Commonwealth v. Peralta, No. 154 MDA
2013 [(Pa. Super. filed Oct. 31, 2013) (unpublished
memorandum)].

The procedural history that follows is not as simple, and requires
a detailed recitation: On June 16, 2014, Peralta filed a pro se
PCRA petition in which he raised claims of ineffective assistance
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of counsel in connection with the entry of his guilty plea. On July
25, 2014, the PCRA court appointed R. Russel Pugh, Esquire[,] to
assist Peralta. On September 19, 2014, Attorney Pugh filed an
amended petition on Peralta’s behalf. Rather than raising
ineffectiveness claims, the amended petition raised only a claim
that Peralta’s aggregate sentence was illegal in light of Alleyne v.
U.S., 133 S.Ct. 2151 (2013), and Commonwealth v. Newman,
99 A.3d 86 (Pa. Super. 2014).

By agreement of the parties, the PCRA court, on October 20, 2014,
stayed Peralta’s PCRA petition pending the Pennsylvania Supreme
Court’s decision in Commonwealth v. Hopkins, 117 A.3d 247
(Pa. 2015). On June 5, 2015, our Supreme Court in Hopkins held
that the procedure for imposing a two-year mandatory minimum
sentence for certain drug offenses committed within 1,000 feet of
a school, 18 Pa.C.S.A. § 6317, was unconstitutional in light of
Alleyne, and that these provisions were not severable from the
remainder of the statute, thereby rendering the entire statute
involving mandatory minimum sentences unconstitutional. See
id.

On June 22, 2015, the Commonwealth filed a response to Peralta’s
amended PCRA [petition] in which it averred that Peralta’s
aggregate sentence did not include a mandatory minimum
sentence. On September 9, 2015, the PCRA court issued
Pa.R.Crim.P. 907 notice of its intent to dismiss Peralta’s amended
petition without a hearing.1
1According to this notice, “[b]oth parties agreed that
a hearing on the amended petition was unnecessary,
and the issue was submitted to the Court for a
decision.” Rule 907 Notice, 9/9/15, at 4.

Although still represented by Attorney Pugh, on October 19, 2015,
Peralta filed a pro se motion for extension of time in which to
respond to the court’s Rule 907 notice. Attached as an exhibit
was a September 18, 2015 [letter], in which Attorney Pugh
informed Peralta that his aggregate sentence was not illegal,
because the trial court sentenced him to a higher minimum
sentence at the applicable counts than the now unconstitutional
five-year mandatory minimum. In this letter, Attorney Pugh
stated that he would file the appeal, but told Peralta he would also
be filing a “motion to withdraw as your attorney per the
Turner/[Finley] line of cases. You will be free to make whatever
arguments you wish to the Superior Court.” Letter, 10/19/15, at

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1.

Although Attorney Pugh remained counsel of record, the trial
court, by order entered October 30, 2015, granted Peralta an
additional thirty days to file his Rule 907 pro se response. On
December 7, 2015, Peralta filed another PCRA petition in which he
raised multiple claims of plea counsel’s ineffectiveness and,
referring to Attorney Pugh’s letter, requested that Attorney Pugh
withdraw from the case.

By order entered December 9, 2015, the PCRA court referred
Peralta’s filing, which the court characterized as an amended
petition, to Attorney Pugh, “for whatever action is deemed
appropriate.” On December 11, 2015, Peralta filed a pro se
objections/response to the PCRA court’s Rule 907 notice. In his
response, Peralta reiterated that[,] in his second PCRA petition,
he had asserted Attorney Pugh’s ineffective assistance in that
Attorney Pugh waived his original claims of plea counsel’s
ineffectiveness that were raised in the original pro se PCRA
petition [] and in failing to request an evidentiary hearing. In
addition, Peralta again requested Attorney Pugh’s removal as
PCRA counsel.2 There is no indication in the record that this letter
was forwarded to Attorney Pugh.
2Peralta also addressed the purported illegality of his
sentence, and requested that his second PCRA petition
be incorporated into his response.

In a letter to the PCRA court dated December 15, 2015, a copy
of which was sent to Peralta and the Commonwealth, Attorney
Pugh addressed the two “new” ineffectiveness claims involving
appellate and plea counsel that Peralta wished to raise and
explained why they were without merit. In concluding,
Attorney Pugh informed the court that he “can find no grounds
to further amend [Peralta’s] Amended PCRA [petition], nor to
file anything else, as a consequence of his most recent pro se
petition.” Letter, 12/15/15, at 1-2. After this correspondence,
a conflict of interest arose in the Lancaster Court of Common
Pleas due to Peralta’s plea counsel being elected to the bench.
Because of this conflict, [Peralta’s] case was transferred to the
Montgomery County Court of Common Pleas.

On January 27, 2016, Peralta filed a “Follow Up on the
Objections to the 907 Notice filed 9/9/15.” In this document,
he once again reminded the PCRA court that he had previously

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raised Attorney Pugh’s ineffectiveness for abandoning the
claims of plea counsel’s ineffectiveness that he raised in his
original pro se PCRA petition. In closing, Peralta requested that
“new counsel be appointed to present all issues raised in [my]
initial PCRA [petition] and [my] objections to the Rule 907
notice.” Follow Up, 1/27/16, at 2.

On March 13, 2017, the Honorable Arthur R. Tilson, Senior
Judge, entered [an] order [dismissing Peralta’s PCRA petition
without a hearing for the reasons stated in its September 9,
2015 Rule 907 notice].

Referencing [that] order, Attorney Pugh filed a motion to
withdraw as counsel on March 18, 2017. The PCRA court
granted Attorney Pugh’s motion on March 27, 2017.3
3 The certified record also includes an April 5, 2017
praecipe filed by Attorney Pugh to withdraw his
appearance as Peralta’s attorney.

Commonwealth v. Peralta, 710 MDA 2017 at 1-5 (Pa. Super. filed May 31,

2018) (unpublished memorandum).

Peralta timely appealed, arguing that the PCRA court violated

Pa.R.Crim.P. 904(C) by allowing Attorney Pugh to withdraw. This Court

agreed, reasoning that “Peralta has effectively been denied his rule-based

right to counsel throughout the litigation of his PCRA petition and on appeal.”1
____________________________________________

1 This Court further explained:

[A]lthough as early as September 2015 Attorney Pugh informed
Peralta that he would be filing a motion to withdraw pursuant to
the “Turner/[Finley]” line of cases, he never did so. Attorney
Pugh’s December 15, 2015 letter to the PCRA court, which did not
address Peralta’s claims regarding Pugh’s ineffectiveness for
abandoning his claims of plea counsel’s ineffectiveness, clearly did
not satisfy the Turner/Finley requirements, see id., and
nowhere in the letter does Attorney Pugh request to withdraw.
Instead, Attorney Pugh filed a motion to withdraw only after the

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Id. at 7. Consequently, we vacated the PCRA court’s March 13, 2017 order

denying Peralta’s petition, and remanded for the PCRA court to appoint new

counsel to assist him in litigating the claims of plea counsel’s ineffectiveness

as originally raised. See id.

On July 18, 2018, the PCRA court appointed counsel, who filed a

Turner/Finley “no-merit” letter on December 10, 2018. On May 1, 2019, the

PCRA court issued its Rule 907 notice of intent to dismiss Peralta’s petition,

and Peralta filed objections thereto on May 20, 2019. On May 28, 2019, the

PCRA court dismissed Peralta’s PCRA petition without a hearing, and Peralta

timely filed a notice of appeal on June 17, 2019. On June 21, 2019, the PCRA

court ordered Peralta to file a Pa.R.A.P. 1925(b) concise statement of errors

complained of on appeal. Thereafter, upon discovering that Peralta had not

received the Rule 1925(b) order in the mail, the PCRA court issued a second

order on September 24, 2019, directing Peralta to file a Rule 1925(b)

statement. On October 6, 2019, Peralta complied. He raises the following

issues for our review:

1. Whether the PCRA court erred as a matter of law when it failed
to vacate [Peralta’s] sentence when such was imposed under
an unconstitutional statute where no statutory authority exists,
____________________________________________

PCRA court entered its March 13, 2017 order denying Peralta’s
petition. In addition, Attorney Pugh never filed an appeal on
Peralta’s behalf, but rather, Peralta filed a pro se notice of appeal
as instructed in the March 13, 2017 order.

Commonwealth v. Peralta, 710 MDA 2017 at 1-5 (Pa. Super. filed May 31,
2018) (unpublished memorandum).

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in violation of Alleyne v. United States, 133 S.Ct. 2151
(2013).

2. Whether counsel provided ineffective assistance during the
guilty plea phase rendering the plea involuntary and not
intelligently knowing since [Peralta] was misadvised by counsel
that he would receive a lesser sentence than the imposed
sentence because guilty plea counsel was previously a clerk for
the sentencing judge and whether the factual findings are
correct?

Brief of Appellant, at 4.

When reviewing the denial of a PCRA petition, we must determine

whether the PCRA court’s order is supported by the record and free of legal

error. Commonwealth v. Smith, 181 A.3d 1168, 1174 (Pa. Super. 2018).

With regard to the court’s legal conclusions, we apply a de novo standard. Id.

First, Peralta claims that with regard to his conviction for persons not to

possess, use, or manufacture a firearm, he received a mandatory-minimum

sentence pursuant to 42 Pa.C.S.A. § 9712, and that this sentence is illegal

pursuant to Alleyne and Commonwealth v. Newman, 99 A.3d 86 (Pa.

Super. 2014) (en banc) (finding that Alleyne renders sentencing practice

under section 9712.1 unconstitutional). Peralta submits that with “regard to

[this charge], the court imposed a consecutive sentence of five [] to ten []

years indicating there was ‘a mandatory minimum sentence for visible

possession of a firearm.’” Brief of Appellant, at 8.

The record belies Peralta’s claim. Upon review of the guilty plea hearing

and sentencing transcripts, it is clear that the trial court did not impose a

mandatory minimum sentence pursuant to section 9712 for Peralta’s

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conviction for persons not to possess a firearm.2 At Peralta’s guilty plea

hearing, the trial court explained to him that, with regard to persons not

possess a firearm,

[T]he offense gravity score is a 10.[3] The standard range is 60
months to 72 months[.]. . . . So, basically, under the guidelines,
you’re at the top of the range for all these offenses. . . . Now,
also you’re subject to certain mandatory minimum
sentences. That is the one for the visible possession of the
firearm used in the commission of this crime. That would
apply to the criminal attempt at homicide and to the
robbery.[4] And this is a second strike offense, which has the
mandatory minimum sentence of 10 years because you have a
prior Felony 1 conviction for aggravated assault.[5]

N.T. Guilty Plea Hearing, 9/17/12, at 37-38 (emphasis added).

At sentencing, the trial court reiterated, after discussing the standard

range of sentences for counts one, two, and three, given Peralta’s prior record

score of five, that, “[t]he person not to possess a firearm [charge] has an

offense gravity score of 10. The standard range would be 60 to 72 months.

____________________________________________

2Primarily, we note that persons not to possess a firearm is not an offense to
which section 9712 applies. See 42 Pa.C.S.A. § 9712 (mandatory minimum
sentence for visible possession of firearm during crime of violence); see also
42 Pa.C.S.A. § 9714(g) (crimes of violence does not include persons not to
possess a firearm).

3 Because Peralta was previously convicted of aggravated assault, an
enumerated offense under 42 Pa.C.S.A. § 6105(b), his offense gravity score
for violating section 6105(a) is ten. See 42 Pa.C.S.A. § 6105; 204 Pa. Code.
§ 303.15.

4 42 Pa.C.S.A. § 9712.

5 See 42 Pa.C.S.A. § 9714 (sentences for second and subsequent crimes of
violence).

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The aggravated range would add 12 months to those numbers and the

mitigated range would take 12 months away.” N.T. Sentencing, 11/21/12, at

4. The trial court continued by noting, as it had done at the time of Peralta’s

guilty plea, that “[t]here is a mandatory minimum sentence for the visible

possession of a firearm. That’s five years. And the second strike offense,

because of the prior aggravated assault, the mandatory minimum sentence

would be 10 years.” Id.

The basis for Peralta’s claim on appeal appears to be that this

“mandatory minimum sentence” comment followed the trial court’s reference

to his conviction for persons not to possess a firearm at sentencing. When

the sentencing transcript is read as a whole however, and in conjunction with

Peralta’s guilty plea hearing transcript, it refutes his argument. The trial court

made clear that the only mandatory minimum sentences applicable to Peralta

were those for his attempted homicide and robbery convictions, not his

conviction for persons not to possess a firearm. See N.T. Sentencing,

11/21/12, at 2-5; N.T. Guilty Plea Hearing, 9/17/12, at 37-38. This is entirely

consistent with section 9712.6

____________________________________________

6 Section 9712 provides that,

any person who is convicted in any court of this Commonwealth
of a crime of violence as defined in section 9714(g) (relating
to sentences for second and subsequent offenses), shall, if the
person visibly possessed a firearm or a replica of a firearm,
whether or not the firearm or replica was loaded or functional,

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Furthermore, the trial court thoroughly explained its reasoning for

imposing Peralta’s individualized sentence, having considered, inter alia: the

charging documents; a presentence investigation report; Peralta’s family

situation; his prior juvenile and criminal records; his educational,

employment, substance abuse, and medical history, including a psychological

evaluation and a drug and alcohol evaluation; his rehabilitative needs; the

safety of the community; a letter written by Peralta; his allocution at

sentencing; his demonstrated lack of remorse and personal responsibility; the
____________________________________________

that placed the victim in reasonable fear of death or serious bodily
injury, during the commission of the offense, be sentenced to a
minimum sentence of at least five years of total confinement
notwithstanding any other provision of this title or other statute
to the contrary.

Id. (emphasis added). Section 9714 defines "crime of violence" as:

murder of the third degree, voluntary manslaughter,
manslaughter of a law enforcement officer[,] . . . murder of the
third degree involving an unborn child[,] . . . aggravated assault
of an unborn child[,] . . . aggravated assault[,] . . . assault of law
[a] enforcement officer[,] . . . use of weapons of mass
destruction[,] . . . terrorism[,] . . . strangulation when the offense
is graded as a felony[,] . . . trafficking of persons when the offense
is graded as a felony of the first degree[,] . . . rape, involuntary
deviate sexual intercourse, aggravated indecent assault, incest,
sexual assault, arson endangering persons or aggravated arson[,]
. . . ecoterrorism[,] . . . kidnapping, burglary[,] . . . robbery[,] .
. . or robbery of a motor vehicle, drug delivery resulting in death[,]
. . . or criminal attempt, criminal conspiracy[,] or criminal
solicitation to commit murder or any of the offenses listed
above, or an equivalent crime under the laws of this
Commonwealth in effect at the time of the commission of that
offense or an equivalent crime in another jurisdiction.

42 Pa.C.S.A. § 9714 (emphasis added).

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victim impact statement; arguments of counsel; the sentencing guidelines;

and the penalties authorized by law. See N.T. Sentencing, 11/21/12, at 28-

39. In addition, Peralta’s sentence of five to ten years’ imprisonment for

persons not to possess, given his prior record score of five, is within the

standard range of the sentencing guidelines. See 204 Pa. Code § 303.16(a);

see also Commonwealth v. Zeigler, 112 A.3d 656, 662-63 (Pa. Super.

2015) (sentence for aggravated assault imposed under illegal mandatory

minimum in section 9712 “is not illegal on that ground” where court states

independent reasons for sentence and sentence falls within standard

sentencing guidelines). Thus, Peralta’s claim fails.

Next, Peralta claims that plea counsel was ineffective, rendering his plea

invalid, in that his plea was not knowingly, voluntarily, and intelligently

entered. He argues that he “was misadvised by counsel that he would receive

a lesser sentence than the one imposed because guilty plea counsel was

previously a clerk for the sentencing judge.” Brief of Appellant, at 12.

It is well-established that counsel enjoys a presumption of effectiveness,

and it is the PCRA petitioner’s burden to overcome that presumption.

Commonwealth v. Brooks, 839 A.2d 245 (Pa. 2003). In order to establish

ineffective assistance, a petitioner must show that his claim is of arguable

merit, his counsel’s performance lacked a reasonable basis, and counsel’s

performance caused him prejudice—i.e., but for counsel’s error, the outcome

of the proceeding would have been different. Id.

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Claims of counsel’s ineffectiveness in connection with a guilty plea
will provide a basis for relief only if the ineffectiveness caused an
involuntary or unknowing plea. This is similar to the “manifest
injustice” standard applicable to all post-sentence attempts to
withdraw a guilty plea. The law does not require that appellant
be pleased with the outcome of his decision to enter a plea of
guilty. All that is required is that [his] decision to plead guilty be
knowingly, voluntarily, and intelligently made.

Commonwealth v. Yager, 685 A.2d 1000, 1004 (Pa. Super. 1996) (en banc)

(internal citations, quotation marks, and brackets omitted). The voluntariness

of a guilty plea must be determined based on the totality of the circumstances.

Id.

Peralta argues that his guilty plea was involuntary because plea counsel

assured him that if he pled guilty, he would receive a sentence of not more

than 17½ to 35 years. “This . . . belief was premised on [plea counsel]’s

relationship with the sentencing judge, [the Honorable] James P. Cullen, as

[plea counsel] was previously a clerk for the judge.” Brief of Appellant, at 12.

To support this position, Peralta submitted affidavits from two individuals who

purportedly overheard conversations to this effect between Peralta and plea

counsel in jail. See PCRA Petition, 6/14/16, Ex. C., Affidavit of Jose Ramos;

Ex. D., Affidavit of Jarvis Jamison. As the PCRA court correctly noted,

however, “[e]xamination of the affidavits [indicates] that the agreement

mentioned in the conversation and nearly put in place was actually between

[p]lea [c]ounsel and the Commonwealth.” Pa.R.Crim.P. 907 Notice, 4/30/19,

at 7-8 (unnumbered pages); Order, 10/24/19 (relying on and incorporating

same for compliance with Pa.R.A.P. 1925(a)). There is no mention in either

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affidavit, or elsewhere in the record, of any relationship, expectation, promise,

or agreement between plea counsel and the sentencing judge. See PCRA

Petition, 6/14/16, Ex. C., Affidavit of Jose Ramos; Ex. D., Affidavit of Jarvis

Jamison.

Indeed, Peralta’s written and oral guilty plea colloquies demonstrate

that at the time of his guilty plea, he had no expectation of any specific

sentence, and had not been made any promise in exchange for his agreement

to plead guilty.

The Court: Whose decision is it to plead guilty?

[Peralta]: Mine, Your Honor.

The Court: Have you been forced, threatened, or pressured in
any manner to make you plead guilty?

[Peralta]: No, Your Honor.

The Court: Now, do you understand that this is what we refer to
as a straight or open plea of guilty?

[Peralta]: Yes, Your Honor.

The Court: That means there’s no agreement to the
sentence.

[Peralta]: I understand.

N.T. Sentencing, 11/21/12, at 33 (emphasis added); see also Guilty Plea

Colloquy and Post-Sentence Rights, 9/17/12.7

____________________________________________

7 Peralta indicated the following in his written guilty plea colloquy:

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“It is a well[-]settled principle of law that a criminal defendant who

elects to plead guilty has a duty to answer questions truthfully.”

Commonwealth v. Myers, 642 A.2d 1103, 1107 (Pa. Super. 1994)

(quotations and brackets omitted), quoting Commonwealth v. Cappelli, 489

A.2d 813, 819 (Pa. Super. 1985) (en banc). Thus, Peralta “is bound by [his]
____________________________________________

7. Do you understand that you are here today to enter a plea of
guilty to some or all of the criminal charges against you?
[Answer:] Yes.
***

35. Do you understand that the total possible sentence you
could receive for your plea today if you were sentenced to the
maximum and all sentences were consecutive would be 77
years, 90 days, and $115,300? [Answer:] Yes.

36. Have you, your lawyer, and the District Attorney entered
into any negotiated plea agreement? [Answer:] No.

***

45. If there is not a plea agreement, do you understand that it
is the judge who will determine your sentence? [Answer:] Yes.

***

49. Is it your decision to plead guilty? [Answer:] Yes.

50. Have you been threatened or forced to plead guilty?
[Answer:] No.

51. Are you making the decision to plead guilty of your own free
will? [Answer:] Yes.

52. Have any promises been made to you to enter this
guilty plea other than the terms of the plea agreement?
[Answer]: No.

Guilty Plea Colloquy and Post-Sentence Rights, 9/17/12 (emphasis added).

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statements made during [his] plea colloquy, and may not successfully assert

claims that contradict such statements.” Commonwealth v. Muhammad,

794 A.2d 378, 384 (Pa. Super. 2002) (rejecting appellant’s claim that plea

counsel coerced him into pleading guilty where, prior to entry of plea, upon

being asked whether decision to enter guilty plea was voluntary, appellant

testified, “I don’t understand about voluntary. . . . Nobody ain’t threatening

me [sic], but they[’re] saying that they can’t beat the case.”). Therefore,

Peralta’s second claim fails.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 09/28/2020

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