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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

CARLOS GONZALEZ

                            Appellant                No. 211 EDA 2016


                Appeal from the PCRA Order December 17, 2015
                In the Court of Common Pleas of Lehigh County
              Criminal Division at No(s): CP-39-CR-0001435-2014


BEFORE: OLSON, J., OTT, J., and MUSMANNO, J.

MEMORANDUM BY OTT, J.:                           FILED OCTOBER 11, 2016

        Carlos Gonzalez appeals from the order denying his first petition for

collateral relief pursuant to the Post Conviction Relief Act (“PCRA”).1

Gonzalez seeks relief from the judgment of sentence of an aggregate two to

four years’ imprisonment, imposed on August 27, 2014, following his

negotiated guilty plea to charges of possession with intent to deliver

(“PWID”) heroin and simple assault by physical menace.2           On appeal,

Gonzalez contends the PCRA court erred in denying him relief based upon




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1
    42 Pa.C.S. §§ 9541-9546.
2
    See 35 P.S. § 780-113(a)(30) and 18 Pa.C.S. § 2701(a)(3), respectively.
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the ineffective assistance of plea counsel. For the reasons that follow, we

affirm.

       The facts underlying Gonzalez’s arrest were summarized during his

guilty plea colloquy as follows:

       [T]his occurred on March 2[8]th, 2014, approximately 11:32
       p.m. Allentown Police were dispatched to the area of 724 North
       Sixth Street by Sherena Shade, who reported that [Gonzalez]
       was there earlier and had yelled, “I’m going to light this place
       up,” while displaying a handgun.

             The officers made contact later with Mr. Gonzalez at the
       area of 513 Tilghman Street. Located behind a large pine tree at
       that area was a red mountain bike as well as additional personal
       items belonging to Mr. Gonzales. Within those personal items or
       near them were 93 packets of heroin, the approximate weight
       being 3.25 grams.

N.T., 8/27/2014, at 12.3

       Gonzalez was later charged with two counts of PWID (heroin and

cocaine), two counts of possession of a controlled substance (heroin and

cocaine), and four counts of simple assault by physical menace.4 On August

27, 2014, he entered a negotiated guilty plea to one count of PWID (heroin)
____________________________________________


3
  We note the police also recovered 12.4 grams of crack cocaine from the
same area as the heroin, which led to additional charges of PWID and
possession of cocaine.     See Affidavit of Probable Cause, 3/29/2014.
Moreover, Gonzalez admitted he also threw a rock through the window of
the property on North Sixth Street. See N.T., 8/27/2014, at 15.
4
  See 35 P.S. § 780-113(a)(30) and (a)(16), and 18 Pa.C.S. § 2701(a)(3),
respectively. The additional charges of simple assault were based upon
other victims who were at the North Sixth Street property at the time of the
incident. See Police Criminal Complaint, 3/29/2014, at 4.




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and one count of simple assault by physical menace. The parties agreed to

a two to four year sentence for the charge of PWID and a concurrent

sentence for the charge of simple assault. In addition, the Commonwealth

withdrew the remaining charges. That same day, the trial court sentenced

Gonzalez in accordance with the terms of the plea agreement. 5        No post-

sentence motion was filed.

       On September 11, 2014, Gonzalez filed a timely pro se PCRA petition,

asserting he entered an unknowing and involuntary plea due to counsel’s

ineffectiveness.     The PCRA court appointed new counsel, who filed an

amended petition on June 26, 2015.               The amended petition included

additional claims of counsel’s ineffectiveness in conjunction with the entry of

Gonzalez’s plea. Less than one month later, however, Gonzalez sent a pro

se letter to the PCRA court seeking to withdraw his petition. Thereafter, on

July 30, 2015, counsel filed a motion to withdraw the petition based on

Gonzalez’s pro se filing.        However, at the August 14, 2015, evidentiary

hearing, the parties decided to proceed with his petition.6 The PCRA court

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5
  As noted above, the court imposed a term of two to four years’
imprisonment for the charge of PWID, as well as a concurrent term of one to
two years’ imprisonment for the charge of simple assault.
6
  PCRA counsel explained at the hearing that “the only reason [Gonzalez]
wanted to withdraw the PCRA petition [was] because he didn’t want to be
transported [] to Allentown because now he has lost his positions in
programs at the state prison” which will delay his parole. N.T., 8/14/2015,
at 4. After the court determined Gonzalez could not be transported back to
(Footnote Continued Next Page)


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entered an order denying Gonzalez’s petition on December 17, 2015. This

timely appeal followed.7

      Gonzalez’s sole claim on appeal asserts plea counsel’s ineffectiveness

caused him to enter an unknowing and involuntary plea.                      Specifically,

Gonzalez contends his plea was unknowing because counsel did not provide

him with a copy of the discovery prior to the entry of his plea, nor did

counsel review with him the written plea colloquy. See Gonzalez’s Brief at

9. Further, Gonzalez asserts his plea was involuntary as he claims counsel

“told him he would be found guilty if he went to trial because the victim was

a woman and he ‘would not stand a chance’ against a woman witness.” Id.

He also averred counsel told his mother he “would get more time than he

expected, and that he was going to lose.” Id. Gonzalez argues that, but for

counsel’s actions, he “would have probably not [] entered a guilty plea[.]”

Id.

      When reviewing an order dismissing a PCRA petition, we must

determine whether the PCRA court’s findings of fact are supported by the

record,   and    whether        its   legal      conclusions   are   free   from   error.
                       _______________________
(Footnote Continued)

state prison that same day, the parties decided to proceed with the hearing.
Id. at 8.
7
  On January 21, 2016, the PCRA court ordered Gonzalez to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Gonzalez complied with the court’s directive, and filed a concise statement
on February 8, 2016.




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Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014). “Great deference

is granted to the findings of the PCRA court, and these findings will not be

disturbed   unless   they   have   no   support   in   the    certified   record.”

Commonwealth v. Carter, 21 A.3d 680, 682 (Pa. Super. 2011) (citation

omitted).   Moreover, “[t]he PCRA court’s credibility determinations, when

supported by the record, are binding on this Court.”         Commonwealth v.

Spotz, 18 A.3d 244, 259 (Pa. 2011).

      Where, as here, the petitioner alleges the ineffectiveness of prior

counsel in conjunction with a guilty plea, our review is as follows:

      To prevail on a claim alleging counsel’s ineffectiveness under the
      PCRA, Appellant must demonstrate (1) that the underlying claim
      is of arguable merit; (2) that counsel’s course of conduct was
      without a reasonable basis designed to effectuate his client’s
      interest; and (3) that he was prejudiced by counsel’s
      ineffectiveness, i.e. there is a reasonable probability that but for
      the act or omission in question the outcome of the proceedings
      would have been different.

      It is clear that a criminal defendant’s right to effective counsel
      extends to the plea process, as well as during trial. However,
      [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. 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.

Commonwealth v. Willis, 68 A.3d 997, 1001-1002 (Pa. Super. 2013),

quoting Commonwealth v. Wah, 42 A.3d 335, 338 (Pa. Super. 2012)

(citations, quotation, and quotation marks omitted).



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      When considering the voluntariness of a defendant’s guilty plea,

      [t]he longstanding 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 he may not later
      assert grounds for withdrawing the plea which contradict the
      statements he made at his plea colloquy.

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

also Commonwealth v. Yeomans, 24 A.3d 1044, 1047 (Pa. Super. 2011).

      Here, both Gonzalez and plea counsel testified at the PCRA evidentiary

hearing. Although Gonzalez claimed counsel never reviewed the discovery

with him before the plea, counsel explained his normal practice was to

provide a duplicate copy of all discovery to his client. See N.T., 8/14/2015,

at 11, 46. Likewise, while Gonzalez testified his attorney did not explain the

plea colloquy to him and was not even present when he completed the

questionnaire, counsel recalled that he sat with Gonzalez and “went over the

colloquy with him.”   Id. at 11-12, 38-39.   The PCRA court resolved these

credibility discrepancies in favor of counsel, as was its prerogative.    See

Trial Court Opinion, 12/17/2015, at 2-3. See also Spotz, supra, 18 A.3d

at 259.

      Moreover, our review of the transcript from the guilty plea hearing

reveals Gonzalez entered the plea knowingly and voluntarily. The trial court

conducted a thorough oral colloquy, during which Gonzalez affirmed: (1) he

voluntarily signed the written colloquy form; (2) he was “perfectly aware” of



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what was going on, despite the fact he was on prescribed medication for

mental health issues and had ingested an illegal substance in the previous

24 hours;8 (3) he did commit the crimes to which he was pleading guilty; (4)

no promises other than those in the plea agreement were made to him; (5)

he was not forced or threatened to enter the plea; (6) he was pleading guilty

of his “own free will;” and (7) he was satisfied with the representation of his

attorney. N.T., 8/27/2014, at 5, 6, 9, 12-17, 18. As we explained above:

“The longstanding 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.” Pollard, supra, 832 A.2d at 523.

       Furthermore, we note plea counsel testified during the evidentiary

hearing that he was prepared to proceed to trial, and, at Gonzalez’s request,

had filed a motion to suppress statements Gonzalez made while in police

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8
  We note Gonzalez does not claim the prescription medication and/or drugs
he ingested prior to the hearing affected his ability to understand the
proceeding. Indeed, during the colloquy, after acknowledging he was taking
Seroquel for psychotic behavior, and admitting he had “smoked some K-2”
during the previous 24 hours, Gonzalez testified: “I’m perfectly aware of
what’s going on, like I still understand what you say.” N.T., 8/27/2014, at
9. Moreover, in its opinion, the PCRA court, which presided over Gonzalez’s
plea, stated Gonzalez “appeared to understand everything that was going
on, and responded appropriately to all the questions asked of him.” PCRA
Court Opinion, 12/17/2015, at 2. See Commonwealth v. Willis, 68 A.3d
997, 1009 (Pa. Super. 2013) (finding “the mere fact Appellant was taking
prescribed psychotropic medication at the time of his plea does not, of itself,
result in the conclusion he was unable to enter a knowing, voluntary, and
intelligent guilty plea.”).




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custody.    See N.T., 8/14/2015, at 37.          Counsel explained that before the

suppression hearing, Gonzalez was not interested in the Commonwealth’s

plea offer because “the numbers were still not good enough[.]”                  Id.

However, counsel spoke again with the Commonwealth’s attorney, and the

Commonwealth agreed to reduce its plea offer to a maximum of two to four

years’ imprisonment.        Counsel explained this was “more in line with what

Gonzalez hoped to resolve the case with.”               Id. at 38. Counsel testified

Gonzalez was “immediately interested, and [they] began the process of

giving him the guilty plea colloquy[.]”          Id.   Moreover, even if we were to

credit Gonzalez’s claim that counsel told him that counsel believed Gonzalez

would be found guilty if he proceeded to trial, Gonzalez has failed to

demonstrate how this statement caused him to enter an involuntary plea,

particularly when he testified during the colloquy that he was entering the

plea voluntarily and was not forced or threatened to do so.9                   N.T.,

8/27/2014, at 18.

       Accordingly, upon our review of the record, the parties’ briefs, and the

PCRA court’s opinion, we find no error or abuse of discretion in the court’s

determination that Gonzalez failed to demonstrate the ineffectiveness of plea

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9
  We note, as did the PCRA court, that although Gonzalez claimed plea
counsel told his mother he would lose if he went to trial, this statement was
hearsay absent testimony from his mother. See N.T., 8/14/2015, at 45.
Moreover, when counsel asked Gonzalez if he wanted him to call Gonzalez’s
mother to testify, Gonzalez replied, “No.” Id. at 48.



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counsel caused him to enter an unknowing or involuntary plea. Therefore,

no relief is warranted.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/11/2016




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