J-S32007-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                      Appellee                 :
               v.                              :
                                               :
    DAWUD MORRIS                               :
                                               :
                      Appellant                :       No. 3416 EDA 2016

                Appeal from the PCRA Order September 28, 2016
              In the Court of Common Pleas of Montgomery County
              Criminal Division at No(s): CP-46-CR-0006270-2013


BEFORE: GANTMAN, P.J., STABILE, J., and FITZGERALD, J.*

MEMORANDUM BY GANTMAN, P.J.:                              FILED JUNE 14, 2017

        Appellant, Dawud Morris, appeals from the order entered in the

Montgomery County Court of Common Pleas, which denied his first petition

filed pursuant to the Post Conviction Relief Act (“PCRA”).1 We affirm.

        The PCRA court opinion sets forth the relevant facts of this case as

follows:

           [Appellant] agreed with two others to go to a TD Bank in
           Lower Merion Township, Montgomery County, on August
           12, 2013, for the purpose of robbing the bank and the
           people inside using handguns. [Appellant], acting as the
           getaway driver, remained in the vehicle while the others
           went inside the bank.

PCRA Court Opinion, filed December 21, 2016, at 1 (internal citations to


____________________________________________


1
    42 Pa.C.S.A. §§ 9541-9546.


___________________________

*Former Justice specially assigned to the Superior Court.
J-S32007-17


record omitted).

      Procedurally, the Commonwealth charged Appellant, on August 13,

2013, with over forty offenses, including robbery and conspiracy to commit

robbery. On September 17, 2014, Appellant entered an open guilty plea to

conspiracy to commit robbery, a first-degree felony. The PCRA court opinion

sets forth relevant testimony from the guilty plea hearing as follows:

         [COMMONWEALTH]:             This is an open plea agreement.
         [Appellant] will plead guilty to Count 7, that is amended to
         conspiracy to robbery, a felony of the first degree.

         THE COURT:                  All right. [Plea counsel]; is that
         correct?

         [PLEA COUNSEL]:       That is correct, Your Honor.
         And I have discussed that with [Appellant], and he’s
         agreed to that.

         THE COURT:                  Is that correct, [Appellant]?

         [APPELLANT]:                Yes.

                                 *     *    *

         THE COURT:                All right. Now, do you feel you
         had enough time to speak with [plea counsel] before
         making this very important decision to plead guilty today?

         [APPELLANT]:                Yes.

         THE COURT:                  Now, this is an open guilty plea.
         Do you understand that?

         [APPELLANT]:                Yes.

         THE COURT:                There is no deal here besides
         what was articulated by the Assistant District Attorney. Do
         you understand that?


                                     -2-
J-S32007-17


        [APPELLANT]:                 I understand.

        THE COURT:                 You are       basically     throwing
        yourself on the mercy of the [c]ourt.

                                 *     *    *

        THE COURT:                Okay. If I were to ask you the
        same questions that appear in D-1, the guilty plea
        colloquy, right now in open court, would your answers be
        the same?

        [APPELLANT]:                 Yes.

        THE COURT:                   Would they be truthful?

        [APPELLANT]:                 Yes.

        THE COURT:               All right.   Now, has your
        attorney explained to you each and every element of the
        crime – that make up the crime conspiracy to commit
        robbery?

        [APPELLANT]:                 Yes.

        THE COURT:                   So you know all the elements?

        [APPELLANT]:                 Yes.

        THE COURT:                  All right. Very good. Did he
        explain to you what the maximum period of incarceration
        and/or fine is for an F-1, a felony of the first degree?

        [APPELLANT]:                 Yes.

        THE COURT:                   Knowing that, do you still wish
        to plead guilty?

        [APPELLANT]:                 Yes.

Id. at 3-5 (quoting N.T. Plea Hearing, 9/17/14, at 3, 5-8) (internal footnote

omitted). On December 3, 2014, the court sentenced Appellant to five (5)


                                     -3-
J-S32007-17


to ten (10) years’ incarceration, plus ten (10) years’ probation.           Appellant

filed, on December 11, 2014, a pro se post-sentence motion, which the court

denied on March 4, 2015.

      On March 3, 2016, Appellant timely filed the current PCRA petition,

alleging plea counsel was ineffective for failing to advise Appellant prior to

the entry of the guilty plea: (1) that the offense to which Appellant pled

guilty was a first-degree felony; and (2) of the “sentencing ramifications” of

Appellant’s guilty plea.     The PCRA court held, on September 26, 2016, an

evidentiary hearing, at which Appellant and plea counsel testified.                  On

September 28, 2016, the PCRA court denied Appellant’s petition. Appellant

timely filed a notice of appeal on October 28, 2016. The PCRA court ordered

Appellant, on November 4, 2016, to file a concise statement of errors

complained of on appeal per Pa.R.A.P. 1925(b); Appellant timely complied

on November 23, 2016.

      Appellant raises one issue for our review:

         WHETHER APPELLANT’S DECISION TO ENTER INTO AN
         OPEN PLEA WAS INDUCED BY THE MISADVICE OF PLEA
         COUNSEL RELATIVE TO THE GRADING OF THE OFFENSE
         AND COUNSEL’S FAILURE TO ENSURE THAT APPELLANT
         UNDERSTOOD THE POTENTIAL MAXIMUM SENTENCES
         THAT COULD BE IMPOSED AS A RESULT OF THE PLEA?

(Appellant’s Brief at 4).

      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.

                                           -4-
J-S32007-17


Commonwealth v. Conway, 14 A.3d 101 (Pa.Super. 2011), appeal denied,

612 Pa. 687, 29 A.3d 795 (2011). This Court grants great deference to the

findings of the PCRA court if the record contains any support for those

findings. Commonwealth v. Boyd, 923 A.2d 513 (Pa.Super. 2007), appeal

denied, 593 Pa. 754, 932 A.2d 74 (2007).             We give no such deference,

however, to the court’s legal conclusions.         Commonwealth v. Ford, 44

A.3d 1190 (Pa.Super. 2012). Traditionally, credibility issues are resolved by

the trier of fact who had the opportunity to observe the witnesses’

demeanor.      Commonwealth v. Abu-Jamal, 553 Pa. 485, 720 A.2d 79

(1998), cert. denied, 528 U.S. 810, 120 S.Ct. 41, 145 L.Ed.2d 38 (1999).

Where the record supports the PCRA court’s credibility resolutions, they are

binding on this Court. Id.

      The     law   presumes    counsel    has   rendered     effective   assistance.

Commonwealth v. Gonzalez, 858 A.2d 1219, 1222 (Pa.Super. 2004),

appeal denied, 582 Pa. 695, 871 A.2d 189 (2005). To prevail on a claim of

ineffective   assistance   of   counsel,    a    petitioner   must   show,    by   a

preponderance of the evidence, ineffective assistance of counsel, which, in

the circumstances of the particular case, so undermined the truth-

determining process that no reliable adjudication of guilt or innocence could

have taken place.      Commonwealth v. Turetsky, 925 A.2d 876, 880

(Pa.Super. 2007), appeal denied, 596 Pa. 707, 940 A.2d 365 (2007). The

petitioner must demonstrate: (1) the underlying claim has arguable merit;


                                      -5-
J-S32007-17


(2) counsel lacked a reasonable strategic basis for his action or inaction; and

(3) but for counsel’s errors and omissions, there is a reasonable probability

the outcome of the proceedings would have been different.             Id.    “The

petitioner bears the burden of proving all three prongs of the test.”         Id.

“Where it is clear that a petitioner has failed to meet any of the three,

distinct prongs of the…test, the claim may be disposed of on that basis

alone, without a determination of whether the other two prongs have been

met.”    Commonwealth v. Steele, 599 Pa. 341, 360, 961 A.2d 786, 797

(2008).

        “Allegations 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) (quoting Commonwealth v.

Hickman, 799 A.2d 136, 141 (Pa.Super. 2002)).            “Where the defendant

enters his plea on the advice of counsel, the voluntariness of the plea

depends on whether counsel’s advice was within the range of competence

demanded of attorneys in criminal cases.” Moser, supra. Pennsylvania law

does not require the defendant to “be pleased with the outcome of his

decision to enter a plea of guilty[; a]ll that is required is that his decision to

plead guilty be knowingly, voluntarily and intelligently made.” Id. at 528-

29.   A guilty plea will be deemed valid if the totality of the circumstances

surrounding the plea shows that the defendant had a full understanding of


                                      -6-
J-S32007-17


the nature and consequences of his plea such that he knowingly and

intelligently entered the plea of his own accord.              Commonwealth v.

Fluharty, 632 A.2d 312, 314-15 (Pa.Super. 1993).                 Pennsylvania law

presumes the defendant is aware of what he is doing when he enters a guilty

plea,    and   the    defendant   bears    the   burden   to     prove   otherwise.

Commonwealth v. Pollard, 832 A.2d 517, 523 (Pa.Super. 2003).                  Mere

disappointment in the sentence does not constitute the necessary “manifest

injustice” to render the defendant’s guilty plea involuntary. Id. at 522. See

also Commonwealth v. Kelly, 5 A.3d 370, 377 (Pa.Super. 2010), appeal

denied, 613 Pa. 643, 32 A.3d 1276 (2011) (reiterating principle that courts

discourage entry of plea as sentence-testing device).

        After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable Gary S.

Silow, we conclude Appellant’s issue merits no relief.            The PCRA court

opinion comprehensively discusses and properly disposes of the question

presented.     (See PCRA Court Opinion, filed December 21, 2016, at 5-7)

(finding:    plea    court   determined    Appellant   entered    plea   knowingly,

intelligently, and voluntarily; during oral plea colloquy, Appellant did not

object to grade of offense; at PCRA hearing, Appellant acknowledged he had

represented to court during plea hearing that Appellant was aware of

maximum possible sentence and that no promises had been made to him

concerning length of sentence; Appellant also acknowledged that, at time of


                                          -7-
J-S32007-17


plea hearing, he knew offense to which he pled guilty was first-degree

felony; Appellant also testified he did not answer oral plea colloquy

questions honestly because he wanted plea court to accept plea; plea

counsel testified that prior to plea hearing, he told Appellant offense to

which he would plead guilty was first-degree felony; plea counsel stated he

made no promises to Appellant concerning length of sentence; plea counsel

said he informed Appellant of potential maximum sentence and advised him

that length of sentence would be at court’s discretion; plea counsel testified

that he instructed Appellant to testify truthfully at guilty plea hearing; plea

counsel’s testimony was credible and Appellant’s testimony was incredible;

when Appellant entered open guilty plea, Appellant knew: (1) he was

pleading guilty to first-degree felony; (2) possible maximum sentence for

offense; and (3) there were no agreements regarding his sentence;

Appellant failed to demonstrate plea counsel was ineffective).     The record

supports the PCRA court’s rationale. Accordingly, we affirm on the basis of

the PCRA court’s opinion.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/14/2017

                                     -8-
