J-S07004-16



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                          Appellee

                     v.

LEO DANIEL EDWARDS, JR.,

                          Appellant                   No. 550 MDA 2015


              Appeal from the Order Entered February 20, 2015
              In the Court of Common Pleas of Luzerne County
             Criminal Division at No(s): CP-40-CR-0001004-2013


BEFORE: BOWES, OTT, AND FITZGERALD,* JJ.

MEMORANDUM BY BOWES, J.:                         FILED FEBRUARY 05, 2016

       Leo Daniel Edwards, Jr., appeals from the February 20, 2015 order

denying him PCRA relief. We affirm.

       This appeal involves four different criminal cases.     At action number

1004 of 2013, Appellant was charged with retail theft graded as a first-

degree misdemeanor after he was seen on November 14, 2012, leaving the

Bed, Bath and Beyond in Arena Hub Place, Wilkes-Barre Township, with two

Dyson vacuum cleaners worth $1,198 without paying for them.               Case

number 1020 of 2013 involves a first-degree misdemeanor retail theft

offense that Appellant committed when he took a Dyson vacuum worth

about $500 from a Wal-Mart Superstore in Wilkes-Barre Township on July

24, 2012. This crime was captured on surveillance tape. At case number
*
    Former Justice specially assigned to the Superior Court.
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1021 of 2013, at the Target Department Store located at 3400 Wilkes-Barre

Township Commons in Wilkes-Barre Township, Appellant was observed

stealing a Dyson vacuum cleaner worth about $600 on September 19, 2013.

He was charged with retail theft graded as a first-degree misdemeanor. On

February 14, 2013, at criminal action 1022 of 2013, Appellant was charged

with retail theft graded as a third-degree felony.    Between July 15, 2012,

and July 28, 2012, videotape surveillance captured Appellant stealing

$2,772.18 in merchandise, which consisted of thirty-two packages of men’s

razor blades and three Dyson vacuum cleaners, from the same Target

Department Store.

     On October 10, 2013, he tendered a guilty plea at all four cases,

where all four crimes were graded as first-degree misdemeanors. Appellant

acknowledged at the proceeding that there was no agreement as to his

sentence and acknowledged that the maximum sentence that could be

imposed for each crime was five years in jail.      A presentence report was

prepared, and the matter proceeded to sentencing on November 18, 2013.

The report revealed that Appellant had an extensive criminal history,

revocations   of   probation,   escapes   from   work-release   programs   and

furloughs, and he had been released from prison “not long before

committing these offenses.” N.T. Sentencing, 11/18/13, at 5.

     Based upon these factors, and since there were four offenses involved,

the sentencing court concluded that a state sentence was appropriate.

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Appellant was sentenced in the standard range to nine to twenty-four

months, but two of the sentences were imposed consecutively, resulting in

an aggregate term of imprisonment of one and one-half to four years.

      Appellant did not file a direct appeal but did request PCRA relief in a

timely pro se petition filed on June 6, 2014.    Counsel was appointed and

averred that Appellant was entitled to withdraw his guilty plea because

counsel told him that he would get a sentence of only six to twelve months

“total on these cases.” Brief in Support of Pro Se PCRA Petition and

Supplemental Counseled Petition, 2/5/15, at 2.

      The court conducted a hearing on       February 11, 2015, where plea

counsel, Joseph Yeager, Esquire, denied telling Appellant that he would

receive an aggregate sentence of six to twelve months in jail in the four

cases. N.T. Hearing, 2/11/15, at 24. Mr. Yeager explained to Appellant that

“on each and every count, the standard range was 6 to 12 months” and that

he could not predict what the aggregate sentence would be. Id. Mr. Yeager

additionally told Appellant, as substantiated by the plea colloquy, that there

was no agreement as to his sentence.       Mr. Yeager testified that Appellant

“was never promised that his sentence would be 6 to 12 months concurrent

on each and every retail theft count.” Id.

      The PCRA court denied relief on February 20, 2015, and this appeal

followed.   Appellant presents one issue for our review: “Whether the trial

court erred in not finding trial counsel ineffective.”   Appellant’s brief at 1.

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Appellant claims that he was promised that he would receive six to twelve

months imprisonment, rendering his plea infirm since his sentence was in

excess of that term. Additionally, Appellant avers that he was never advised

about consecutive sentencing and that his aggregate maximum sentence

could be more than the maximum sentence outlined as to each offense.

      Initially, we note that our “standard of review of the denial of a PCRA

petition is limited to examining whether the evidence of record supports the

court’s determination and whether its decision is free of legal error.”

Commonwealth v. Smith, 121 A.3d 1049, 1052 (Pa.Super. 2015).

Appellant avers that plea counsel was ineffective. “To plead and prove

ineffective assistance of counsel a petitioner must establish: (1) that the

underlying issue has arguable merit; (2) counsel's actions lacked an

objective reasonable basis; and (3) actual prejudice resulted from counsel's

act or failure to act.”   Commonwealth v. Stewart, 84 A.3d 701, 706

(Pa.Super. 2013) (en banc). The failure to meet any of these aspects of the

ineffectiveness test results in the claim failing. Id. A determination as to

whether the facts asserted present a claim of arguable merit is a legal one.

Id.   It is presumed that counsel renders effective representation. Id.

Additionally, “[a]llegations 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.” Commonwealth

v. Moser, 921 A.2d 526, 531 (Pa.Super. 2007) (citation omitted).

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      Herein, Appellant’s first position is that he was promised a total

sentence of six to twelve months incarceration in connection with the plea

entered at the four cases. However, the PCRA court specifically found “the

testimony of trial counsel, Joseph J. Yeager, Esquire, credible, and further

find that he never promised the Defendant that he would receive a particular

sentence.” Trial Court Opinion, 7/15/15, at 6. “The PCRA court's credibility

determinations, when supported by the record, are binding” for purposes of

appellate review.   Commonwealth v. Watkins, 108 A.3d 692, 701 (Pa.

2014).   The PCRA court’s credibility determination is supported by the

transcript of the plea colloquy, where Appellant acknowledged that there was

no sentencing agreement. Hence, we are bound by the determination that

Appellant was not promised that he would receive six to twelve months

incarceration, and his guilty plea cannot be withdrawn on this basis.

      Appellant’s second position is that he was never informed that his

sentences   might   be   imposed   consecutively.     Appellant   relies   upon

Commonwealth v. Persinger, 615 A.2d 1305 (Pa. 1992).              In that case,

the defendant pled guilty to nine counts of bad checks and one count of theft

by deception. Persinger was told that he faced a maximum sentence for the

offense of bad checks of two years and a maximum sentence on the theft

charge of five years. It was not communicated to the defendant that each

sentence could be imposed consecutively, and he ultimately was sentenced

to seven and one-half to fifteen years. Thus, while the defendant had been

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instructed as to the maximum sentence for each crime, he had not been

given information about the aggregate sentence that he faced if the

sentences were consecutive.       Moreover, Persinger actually received a

maximum sentence that exceeded what had been stated as the maximum

sentence imposed on any offense.      In other words, he was told that the

maximum sentence for the most serious offense was five years, yet he

received fifteen years. Thus, the defendant's total sentence was far greater

than the maximum he could have obtained on the highest graded offense.

Since Persinger was unaware of the maximum sentence that he faced and

that was imposed, our High Court permitted him to withdraw his guilty plea.

      In the present case, at the colloquy, Appellant was advised that each

offense to which he was pleading guilty carried a maximum sentence of five

years.    N.T. Plea, 10/10/13, at 3, 4.   The maximum aggregate sentence

actually imposed on Appellant was four years imprisonment, which was less

than what he was apprised that he risked as to each offense when he

tendered his guilty plea.   Accordingly, Appellant’s guilty plea is not infirm

under Persinger.

      In Commonwealth v. Carter, 656 A.2d 463, 466 (Pa. 1995), the

defendant invoked Persinger since he was not warned that each sentence

could be imposed consecutively as to the multiple offenses to which he pled

guilty.   However, the maximum aggregate sentence that was imposed on

Carter was less than the maximum sentence that he was notified that he

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faced as to one of the offenses.   Thus, the sentence actually imposed on

Carter was less than the minimum/maximum sentence that he was told that

he risked on one crime.

     The Carter court distinguished Persinger and refused to permit

Carter to withdraw his guilty plea since he was aware that he could have

received the sentence actually imposed.   Herein, Appellant knew that he

faced a term of five years incarceration as a maximum sentence and the

maximum aggregate sentence imposed was less than that amount of time.

Carter rather than Persinger applies in this case, and Appellant cannot

withdraw his guilty plea even though he was not informed about consecutive

sentencing.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/5/2016




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