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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
RICHARD LOPEZ, :
:
Appellant : No. 3287 EDA 2016
Appeal from the PCRA Order September 15, 2016
in the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0014722-2007
BEFORE: BENDER, P.J.E., MUSMANNO, J., and STEVENS*, P.J.E.
MEMORANDUM BY MUSMANNO, J.: FILED DECEMBER 29, 2017
Richard Lopez (“Lopez”) appeals from the Order dismissing his first
Petition for relief filed pursuant to the Post Conviction Relief Act (“PCRA”).1
We affirm.
On August 22, 2008, Lopez pled nolo contendere to the crimes of
aggravated assault and criminal conspiracy.2 See 18 Pa.C.S.A. §§ 2702,
903. On June 10, 2009, the trial court sentenced Lopez to concurrent prison
terms of six to fifteen years. On direct appeal, this Court affirmed Lopez’s
judgment of sentence, after which the Pennsylvania Supreme Court denied
____________________________________________
1
See 42 Pa.C.S.A. §§ 9541-9546.
2
It is well established that a plea of nolo contendere is treated as a guilty
plea in terms of its effect upon a given case.” Commonwealth v. V.G., 9
A.3d 222, 226 (Pa. Super. 2010).
____________________________________
* Former Justice specially assigned to the Superior Court.
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allowance of appeal. See Commonwealth v. Lopez, 4 A.3d 672 (Pa.
Super. 2010), appeal denied, 13 A.3d 476 (Pa. 2010).
Lopez timely filed the instant PCRA Petition on August 20, 2011.
Appointed counsel filed an Amended PCRA Petition on October 19, 2015.
After appropriate Notice pursuant to Pa.R.Crim.P. 907, the PCRA court
dismissed Lopez’s PCRA Petition without an evidentiary hearing. Thereafter,
Lopez filed the instant, timely appeal, followed by a court-ordered Pa.R.A.P.
1925(b) Concise Statement of matters complained of on appeal.
Lopez presents the following claim for our review: “Did the PCRA
[c]ourt err when it dismissed [Lopez’s] PCRA Petition without a hearing, and
[] where [Lopez] had pled that he had been deceived by prior counsel as to
sentencing[,] and where said issue could not be resolved until and unless an
evidentiary hearing was held?” Brief for Appellant at 3.
Lopez argues that his plea counsel rendered ineffective assistance by
inducing him to plead nolo contendere with a promise that the trial court
would sentence him to three to six years in prison. Id. at 8. Lopez
contends that an evidentiary hearing is necessary to determine whether
counsel improperly induced him to plead guilty. Id. at 8-9.
“In reviewing the denial of PCRA relief, we examine whether the PCRA
court’s determination is supported by the record and free of legal error.”
Commonwealth v. Montalvo, 114 A.3d 401, 409 (Pa. 2015) (citation and
internal quotation marks omitted).
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To establish ineffective assistance of counsel warranting relief under
the PCRA, a petitioner must establish, by a preponderance of the evidence,
that counsel’s ineffectiveness so undermined the truth-determining process
that no reliable adjudication of guilt or innocence could have taken place.
Commonwealth v. Johnson, 966 A.2d 523, 532 (Pa. 2009). “Generally,
counsel’s performance is presumed to be constitutionally adequate, and
counsel will only be deemed ineffective upon a sufficient showing by the
petitioner.” Id. This requires the petitioner to demonstrate that (1) the
underlying claim is of arguable merit; (2) counsel had no reasonable
strategic basis for his or her action or inaction; and (3) petitioner was
prejudiced by counsel’s act or omission. Id. at 533. A finding of “prejudice”
requires the petitioner to show “that there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding would
have been different.” Id. Counsel cannot be deemed ineffective for failing
to pursue a claim that lacks merit. Commonwealth v. Loner, 836 A.2d
125, 132 (Pa. Super. 2003) (en banc).
When asserting a claim of ineffectivene assistance of counsel in the
context of a guilty plea, a defendant must show that plea counsel’s
ineffectiveness induced him to enter the plea. Commonwealth v.
Johnson, 875 A.2d 328, 331 (Pa. Super. 2005).
Because a plea of guilty effectively waives all non-jurisdictional
defects and defenses, after sentencing, allegations of
ineffectiveness of counsel in this context provide a basis for
withdrawal of the plea only where there is a causal nexus
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between counsel’s ineffectiveness, if any, and an unknowing or
involuntary plea. The guilty plea hearing becomes the significant
procedure under scrutiny. The focus of the inquiry is whether
the accused was misled or misinformed and acted under that
misguided influence when entering the guilty plea.
Commonwealth v. Flood, 627 A.2d 1193, 1199 (Pa. Super. 1993)
(citations and emphasis omitted).
As this Court has explained,
[o]ur law presumes that a defendant who enters a guilty plea
was aware of what he was doing. He bears the burden of
proving otherwise.
***
The long standing rule of Pennsylvania law is that a defendant
may not challenge his guilty plea by asserting that he lied while
under oath, even if he avers that counsel induced the lies. A
person who elects to plead guilty is bound by the statements he
makes in open court while under oath and may not later assert
grounds for withdrawing the plea which contradict the
statements he made at his plea colloquy.
***
[A] defendant who elects to plead guilty has a duty to answer
questions truthfully. We [cannot] permit a defendant to
postpone the final disposition of his case by lying to the court
and later alleging that his lies were induced by the prompting of
counsel.
Commonwealth v. Pollard, 832 A.2d 517, 523-24 (Pa. Super. 2003).
Our review of the record discloses that during his plea colloquy, the
trial court explained to Lopez that he was entering a plea of no contest to
two first-degree felonies, and the court could impose consecutive sentences
for a prison term of up to 20 to 40 years. N.T., 8/22/08, at 6. In addition,
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the trial court reiterated that it had the authority to sentence Lopez to ten to
twenty years in prison for each charge, ten to twenty months, or even ten to
twenty days, and that it was entirely up to the trial court as to the sentenced
imposed. Id. Lopez acknowledged that he understood the trial court’s
explanation of potential sentences. Id. at 7-8. Further, Lopez
acknowledged that he had discussed his no-contest plea with plea counsel;
he understood the rights that he was giving up by tendering his plea; he was
satisfied with counsel’s representation; and that no one had made any
promises to him regarding his sentence. Id. at 8-16.
Thus, our review of the record discloses that, by his own admission,
Lopez knew of his potential sentences at the time of sentencing, and that
counsel had made no promises for a lower sentence. Because Lopez failed
to establish that his counsel rendered ineffective assistance, we affirm the
Order of the PCRA court, which dismissed Lopez’s Petition without a hearing.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/29/2017
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