J-S34011-15



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

MATTHEW MORRIS,

                            Appellant              No. 1842 MDA 2014


                  Appeal from the PCRA Order October 7, 2014
               In the Court of Common Pleas of Lancaster County
              Criminal Division at No(s): CP-36-CR-0003254-2012

BEFORE: BOWES, OTT and STABILE, JJ.

MEMORANDUM BY BOWES, J.:                        FILED OCTOBER 14, 2015

       Matthew Morris appeals from the October 7, 2014 order denying him

PCRA relief. We affirm.

       Appellant was charged in two criminal informations, No. 3252-12 and

No. 3254-12, with four counts of robbery, conspiracy, and theft, stemming

from a weeklong spree of robberies of wine and spirit stores and individuals

who were accessing ATM machines.1 In several of the robberies, Appellant

or his accomplice displayed a knife.

       On February 27, 2013, Appellant pled guilty to some of the charges

and was sentenced to eight to twenty years imprisonment pursuant to a
____________________________________________


1
  Appellant was originally charged at No. 3252 with three counts of robbery,
all first-degree felonies. At the preliminary hearing, two of the robbery
counts were reduced to second and third degree felonies.
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negotiated plea agreement. At No. 3252, Appellant was sentenced to three

to six years incarceration on the first-degree felony robbery count; two to

four years incarceration on the second-degree felony robbery count; and one

to four years of incarceration on the third-degree felony robbery count. The

conspiracy charge was nolle prossed; the theft charge merged with the

robbery. All sentences ran concurrently to each other and to the sentences

imposed at No. 3254.

      At No. 3254, Appellant pled to the first-degree felony robbery and was

sentenced to five to ten years incarceration. On the conspiracy to commit

robbery charge, he was sentenced to a consecutive three to ten year

imprisonment.    Again, the theft charge merged with the robbery.          All

sentences imposed at No. 3254 were to run concurrently with the sentences

imposed at No. 3252, resulting in an aggregate sentence of eight to twenty

years imprisonment.

      Appellant did not pursue a direct appeal. On March 27, 2014, he filed

a counseled PCRA petition in which he alleged that plea counsel’s deficient

representation culminated in a plea that was not knowing and voluntary, but

was instead induced by counsel’s ineffectiveness in failing to explain the

difference between concurrent and consecutive sentences. He asked that he

be permitted to withdraw his guilty plea and stand trial on the charges.

      The trial court held an evidentiary hearing on the petition on June 24,

2014, and the parties filed briefs.   On October 7, 2014, the court denied

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relief. Appellant timely appealed and complied with the trial court’s order to

filed a Pa.R.A.P. 1925(b) concise statement of errors complained of on

appeal. He raises one question for our review:

      I.    Did the trial judge err in not finding trial counsel ineffective
            for failing to properly communicate with Appellant and aid
            his preparation of a defense and further for his failure to
            explain the difference between concurrent and consecutive
            as a sentencing option?

Appellant’s brief at 4.

      In reviewing the PCRA court’s denial of post-conviction relief, we must

determine whether the court’s findings are supported by the record and free

of legal error.   Commonwealth v. Treiber, 2015 Pa. LEXIS 1775, *9-10

(Pa. Aug. 17, 2015). In doing so, we accord great deference to the PCRA

court’s credibility determinations, and where supported by the record, they

are binding on this Court. Id.

      Appellant’s claim is one of counsel ineffectiveness. To be entitled to

relief on such a claim, a PCRA petitioner must establish all three prongs of

the ineffective assistance of counsel test enunciated in Commonwealth v.

Pierce, 527 A.2d 973, 975-76 (Pa. 1987). He must demonstrate: “(1) the

underlying claim has arguable merit; (2) no reasonable basis existed for

counsel's action or failure to act; and (3) he suffered prejudice as a result of

counsel's error, with prejudice measured by whether there is a reasonable

probability the result of the proceeding would have been different.”

Commonwealth v. Chmiel, 30 A.3d 1111, 1127 (Pa. 2011). We start from

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the   presumption      that    counsel      rendered   effective   assistance.

Commonwealth v. Ali, 10 A.3d 282, 291 (Pa. 2010).

      Where, as here, the underlying ineffectiveness implicates a guilty plea,

such a claim will provide relief only “if the ineffectiveness caused an

involuntary or unknowing plea.” Commonwealth v. Diaz, 913 A.2d 871,

872 (Pa.Super. 2006). This Court held in Diaz that this test is analogous to

“the ‘manifest injustice’ standard applicable to all post-sentence attempts to

withdraw a guilty plea.” Id.

      Appellant first contends that appointed counsel “rarely came to see

him” while he was incarcerated, that he did not discuss his case or supply

him with discovery documents, or assist him in formulating his defense. He

maintains that he wanted to go to trial but that counsel refused.

Furthermore, he contends that he would not have pled guilty if counsel had

explained to him the difference between concurrent and consecutive

sentencing. Appellant now seeks to withdraw his guilty pleas.

      At the evidentiary hearing, trial counsel testified as follows.      He

exclusively practices criminal law, and was appointed to represent Appellant

prior to the preliminary hearing.        He met with Appellant regularly for

purposes of discussing his defense and he conferred with Appellant’s

parents. Prison sign-in sheets confirmed that counsel saw Appellant at least

once per month, and more often in the month prior to the guilty plea.

Counsel and Appellant discussed the details of the case, all plea offers,

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reviewed the discovery, and counsel shared an email from the prosecutor

explaining Appellant’s options: to take the plea offer, take an open plea, or

go to trial. That email also stated that the offer extended to Appellant’s co-

defendant was four and one-half to ten years, based on a prior record score

of zero.   Counsel testified that he explained to Appellant why the co-

defendant’s offer was more favorable, but Appellant was not happy with the

reasons.

     Counsel reported that he discussed the difference between concurrent

and consecutive sentences in explaining the plea offer.      Additionally, he

reviewed the applicable sentencing guidelines, explained the deadly weapons

enhancement, and apprised Appellant of the sentencing implications should

he be convicted. After Appellant decided to accept the plea offer, counsel

explained each question on the written guilty plea colloquy form.

     Appellant presented a different picture. He professed to be unsure of

the charges against him because he had not seen the “affidavit” and he and

counsel “never sat down and talked about what was going on.” N.T. PCRA

Hearing, 6/24/14, at 33.    He complained that counsel never gave him a

chance to explain what happened. Appellant maintained that counsel only

came to meet with him once a month and spent five minutes or less with

him, maybe ten minutes on a couple of occasions. Id. at 33-34. Appellant

testified that counsel only gave him ten minutes to review discovery; trial

strategy was never discussed.    He allegedly fired counsel on one occasion

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because he was not helping him: the plea offer remained the same for the

year he was awaiting trial. Id. at 37. According to Appellant, he wanted to

ask counsel why his co-defendant was receiving an offer of a four to eight

year sentence while his offer was eight to twenty years. Appellant insisted

that he only took the plea because counsel represented that, otherwise, he

would get fifteen to thirty years imprisonment, and his parents were

pressuring him.   He stated he would never have agreed to plead guilty if

counsel had explained the difference between a concurrent and consecutive

sentence. He acknowledged that he did not expect to be acquitted, but that

he “didn’t expect an eight to 20.”    Id. at 40.   His “intent was just to get

something . . . a little more fair, . . . . like what my co-defendant received.”

Id.

      On cross-examination, Appellant agreed with the prosecutor who

suggested that, “[t]he bottom line is that you are not satisfied with your

sentence.” Id. at 41. He denied any recollection of the prosecutor outlining

the basis for the charges against him at the hearing on the guilty plea or of

counsel reviewing the written guilty plea colloquy with him.          Although

Appellant insisted that he was not informed by counsel of the difference

between concurrent and consecutive sentences, he acknowledged that the

court advised him that his sentence would be eight to twenty years

imprisonment.




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      The court credited counsel’s testimony concerning his representation

rather than Appellant’s perception of the attorney-client relationship.     It

found, based on counsel’s testimony and the prison records, that counsel

met regularly with Appellant to discuss his case.     In addition, the court

believed counsel’s statement that he explained the difference between

concurrent and consecutive sentences to Appellant, and found no merit in

Appellant’s claim that counsel was ineffective in his representation.      In

concluding that Appellant knowingly and voluntarily chose to accept the plea

offer, the court relied upon Appellant’s written colloquy, as well as his

affirmative representation in open court that he reviewed and understood

the charges, the sentencing guidelines, and his affirmative answers to all of

the inquiries mandated by Pa.R.Crim.P. 590.       The court concluded that

Appellant voluntarily and knowingly agreed to plead guilty in exchange for a

sentence of eight to twenty years imprisonment.

      We find the trial court’s credibility determinations to be amply

supported by the record, and hence, we have no grounds to disturb them.

Largely as a result of those credibility determinations, Appellant’s claims of

counsel ineffectiveness lack a factual basis.      Furthermore, we fail to

comprehend, and Appellant does not enlighten us, how knowledge of the

distinction between a consecutive or concurrent sentence would have had

any impact on Appellant’s decision whether to plead guilty.         Appellant

conceded that he was informed, and he understood, that by accepting the

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negotiated plea, he was agreeing to an aggregate sentence of eight to

twenty years incarceration.

     Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/14/2015




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