J-S20030-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

JAMES EDWARD CARTER, JR.,

                            Appellant              No. 1651 WDA 2014


           Appeal from the PCRA Order Entered September 3, 2014
               In the Court of Common Pleas of Beaver County
             Criminal Division at No(s): CP-04-CR-0000077-2012


BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, and WECHT, JJ.

MEMORANDUM BY SHOGAN, J.:                             FILED MAY 22, 2015

       Appellant, James Edward Carter, Jr., appeals from the order entered

September 3, 2014, by the Court of Common Pleas of Beaver County, which

denied his petitions1 filed pursuant to the Post-Conviction Relief Act

(“PCRA”), 42 Pa.C.S. §§ 9541–9546. We affirm.

       The PCRA court aptly summarized facts of the underlying criminal case

and the procedural history, as follows:

             The above-captioned matter arises out of a series of
       controlled drug transactions arranged by the Pennsylvania Office
       of the Attorney General. On August 6, 2010, Agent Ronald A.
       Pate of the Attorney General’s Office provided $1,500.00 to a
       confidential informant for the purpose of purchasing one pound
       of marijuana from Defendant James Edward Carter, Jr.
       (hereinafter, “Defendant”). Later that day, while agents of the
____________________________________________


1
  Appellant’s pro se PCRA petition was incorporated by reference into the
amended petition filed by appointed counsel.
J-S20030-15


     Attorney General’s Office watched, the informant provided the
     $1,500.00 to Defendant.          At approximately 4:01 p.m.,
     Defendant delivered to the informant a large zip-loc bag
     containing approximately one pound of green vegetable matter.
     The substance inside the bag was sent to the Greensburg Crime
     Lab for testing, and the test results revealed that the substance
     was 429 grams of marijuana.

           On August 16, 2010, the informant was supplied with
     $3,200 for the purpose of purchasing cocaine from Defendant.
     Later that day, while agents watched and positively identified
     Defendant, the informant provided the $3,200 to Defendant. On
     August 30, 2010 at 1:32 p.m., Defendant delivered a baggie
     containing a light-colored powder to the informant by placing it
     in a sock by a stop sign and instructing the informant to pick it
     up. The baggie containing the powder was subsequently sent to
     the DEA Northeast Crime Lab for testing, and the test results
     revealed that the powder weighed 146.9 grams and contained
     cocaine.

           On August 9, 2011, Agent Pate from the Pennsylvania
     Attorney General’s Office and Detective Todd Naylor filed a
     criminal complaint charging Defendant with four counts of
     possession with intent to deliver under 35 P.S. § 780-
     113(a)(30), two counts of possession of a controlled substance
     under 35 P.S. § 780-113(a)(16), and one count of theft by
     deception under 18 Pa.C.S.A. § 3922(a)(1). Defendant was
     arrested shortly thereafter. On January 12, 2012, Defendant
     waived his right to a preliminary hearing. On February 13,
     2012, the Commonwealth filed an Information charging
     Defendant with two counts of possession with intent to deliver,
     two counts of possession, and one count of theft by deception.

           After several continuances of Defendant’s trial, Defendant
     and his attorney, Mr. Louis Emmi, completed the process of
     selecting a jury. On March 5, 2013, before the jury was sworn,
     Defendant and the Commonwealth reached an agreement in
     which Defendant pled guilty to two counts of possession with
     intent to deliver. In exchange, the Commonwealth reduced the
     weight from 146.9 grams of cocaine to 49 grams, waived the
     mandatory minimum sentence, and Defendant was not required
     to report for execution of the sentence for a period of one
     month. Defendant signed an A Information, pleading guilty to
     the amended charges under the agreement and also signed a
     waiver of arraignment. In accordance with the plea agreement,

                                   -2-
J-S20030-15


     Defendant was sentenced on the same date to a term of
     imprisonment of not less than two and one-half years nor more
     than five years. The Sentence Order stated that, pursuant to
     Defendant’s plea agreement, execution of the sentence was
     deferred to April 4, 2013 at 9:00 a.m., when Defendant was to
     report to the Beaver County Jail to begin serving his sentence.
     On April 4, 2013, Defendant failed to appear at the Beaver
     County Jail as required. As a result, a bench warrant for
     Defendant’s arrest was issued on April 5, 2013. Defendant was
     subsequently arrested and incarcerated on August 4, 2013.

            On November 8, 2013, Defendant filed a pro se Motion for
     Post Conviction Collateral Relief in which he claims that his
     sentence was improperly calculated, that the “evidence is more
     than questionable[,]” that his counsel was ineffective, and that
     the “evidence [was] not at trial when [Defendant was] coerced
     into a plea bargain “‘deal.’” Pro se PCRA Pet., at 4. As this was
     Defendant’s first PCRA petition in this matter, the Court
     appointed the Beaver County Public Defender to represent
     Defendant in these proceedings. On March 14, 2014, Defendant,
     through counsel, filed an Amended Petition for Post Conviction
     Relief. In the Amended Petition, Defendant incorporates his pro
     se PCRA petition by reference, and he averred that his March 5,
     2013 guilty plea was not knowing, intelligent, and voluntary
     because he was coerced by his counsel into accepting a plea
     agreement he did not entirely understand or want. As relief,
     Defendant requests a new trial, an evidentiary hearing, or
     modification of his sentence.         On April 22, 2014, the
     Commonwealth filed an Answer to Defendant’s Post Conviction
     Relief Petition in which the Commonwealth asserts that
     Defendant’s plea colloquy demonstrates that he understood the
     plea agreement and was not coerced into accepting it. The
     Answer also contains a New Matter in which the Commonwealth
     claims that Defendant failed to comply with the mandates of 42
     Pa.C.S.A. § 9545(d) and, therefore, is not entitled to a hearing
     or any relief.

            Despite the Commonwealth’s claim in its New Matter, the
     Court held a hearing in this matter on June 9, 2014. During the
     hearing, Defendant was the only witness that was available to
     testify. After Defendant testified, the Court issued an Order
     continuing the PCRA hearing to September 3, 2014. The parties
     were directed to ensure that Defendant’s prior counsel, Louis
     Emmi, Esquire, and the Assistant District Attorney that
     represented the Commonwealth during Defendant’s guilty plea,

                                   -3-
J-S20030-15


     Ronald DiGiorno, appear at the hearing. On September 3, 2014,
     the Court resumed Defendant’s PCRA hearing, and heard
     testimony from Attorney Emmi, who testified that Defendant
     admitted his guilt to him and that he entered a knowing,
     intelligent, and voluntary plea in order to avoid a greater
     sentence.

            The Court entered an Order denying Defendant’s PCRA
     petitions on September 4, 2014.        On September 5, 2014,
     Defendant attempted to file pro se a Post-Sentence Motion to
     reverse his conviction.1 A Notice of Appeal was then filed on
     October 2, 2014. On October 6, 2014, Defendant was directed
     to file a 1925(b) Concise Statement of Matters Complained of on
     Appeal. Defendant moved for an extension of time in which to
     file his Concise Statement, and this was granted by the Court on
     October 27, 2014. On November 7, 2014, Defendant filed his
     Concise Statement.
           1
              The Motion was disregarded by the Court as an
           attempt to have hybrid representation when
           Defendant was already represented by counsel.
           Commonwealth v. Ali, 608 Pa. 71, 89, 10 A.3d
           282, 293 (2010) (where “appellant was represented
           by counsel on appeal,” “his pro se Rule 1925(b)
           statement was a legal nullity.”); Commonwealth v.
           Ellis, 534 Pa. 176, 626 A.2d 1137, 1139, 1141
           (1993) (“[T]here is no constitutional right to hybrid
           representation either at trial or on appeal. . . . [A
           defendant may not] confuse and overburden the
           court by his own pro se filings of briefs at the same
           time his counsel is filing briefs on his behalf.”).

PCRA Court Opinion, 11/19/14, at 1–4.

     Appellant raises two issues for review:

     1. The Appellant argues that the Court erred in denying his
     PCRA Petition alleging ineffective assistance of counsel at the
     time of the defendant’s plea based upon the Defendant feeling
     coerced and pressured into pleading guilty.

     2. The Appellant argues that the Court erred in denying his
     PCRA Petition alleging ineffective assistance of counsel because
     counsel failed to explain by way of colloquy to the Appellant that


                                   -4-
J-S20030-15


      he was entering a plea to amended information and would be
      sentenced to the amended information presented by the
      Commonwealth.

Appellant’s Brief at 5.

      When reviewing an order denying post-conviction relief, the standard

of review is limited to whether the record supports the PCRA court’s

determination and whether that decision is free of legal error.     The PCRA

court’s findings will not be disturbed unless there is no support for the

findings in the certified record.   Commonwealth v. Lawson, 90 A.3d 1,

4 (Pa. Super. 2014).

      Both of Appellant’s issues allege that counsel’s ineffectiveness caused

him to enter a plea that was not knowing, intelligent, and voluntary. See

Commonwealth v. Fears, 86 A.3d 795, 806–807 (Pa. 2014) (quoting

Commonwealth v. Allen, 732 A.2d 582, 587 (Pa. 1999) (allegations of

ineffectiveness in connection with the entry of guilty plea will serve as basis

for relief if ineffectiveness caused appellant to enter involuntary or

unknowing plea)).      To allege a cognizable ineffectiveness claim 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.




                                     -5-
J-S20030-15


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

Commonwealth v. Bracey, 795 A.2d 935, 942 (Pa. 2001) (citations

omitted)).

      We have reviewed the briefs of the parties, the relevant law, the

certified record before us on appeal, and the thorough opinion of the PCRA

court dated November 19, 2014.        We conclude that each ineffectiveness

claim raised by Appellant lacks merit and the PCRA court’s well-crafted

opinion adequately addresses Appellant’s claims on appeal. Accordingly, we

affirm on the basis of the PCRA court’s opinion and adopt its reasoning as

our own.     The parties are directed to attach a copy of that opinion in the

event of further proceedings in this matter.

      Order affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/22/2015




                                     -6-
                                                                                       Circulated 04/30/2015 04:31 PM



                   IN TijE COURT OF COMMON PLEAS OF BEA VER COUNTY
                                      PENNSYLVANIA
                                 CRIMINAL DIVISION - LAW

  COMMONWEALTH OF PENNSYLVANIA,

             vs.
                                                                      No. 77 of2012
  JAMES EDWARD CARTER, JR.,

                   Defendant.

                                    RULE 1925(a) OPINION ·
 Tesla, J.                                                               November      1i_, 2014
         Before this Court for disposition are the petitions for post-conviction collateral relief

 under the Post Conviction Relief Act (hereinafter, "PCRA") filed on behalf of Defendant James

 Edward Carter, Jr. For the reasons stated below, Defendant's petitions are denied.

                                FACTS AND PROCEDURAL HISTORY

        The above-captioned matter arises out of a series of controlled drug transactions arranged

 by the Pennsylvania Office of the Attorney General. On August 6, 2010, Agent Ronald A. Pate

 of the Attorney General's Office provided $1,500.00 to a confidential informant for the purpose
of purchasing one _pound o_f marijuana from Defendant James Edward Carter, Jr. (hereinafter,

"Defendant"). Later that day, while agents of the Attorney General's             Office watched, the

informant provided the $1,500.00 to Defendant. At approximately                4:01 p.rn., Defendant

delivered to the informant a large zip-loc bag containing approximately one pound of green

vegetable matter. The substance inside the bag was sent to the Greensburg Crime Lab for testing,

and the test results revealed that the substance was 429 grams of marijuana.

       On August 16, 2010, the informant was supplied with $3,200 for the purpose of

purchasing cocaine from Defendant. Later that day, while agents watched and positively
                                                                                   Circulated 04/30/2015 04:31 PM



  identified Defendant, the informant provided the $3,200 to Defendant. On August 30, 2010 at

  1 :32 p.m., Defendant delivered a baggie containing a light-colored powder to the informant by

  placing it in a sock by a stop sign and instructing the informant to pick it up. The baggie

  containing the powder was subsequently sent to the DEA Northeast Crime Lab for testing, and

 the test results revealed that the powder weighed 146.9 grams and. contained cocaine.

         On August 9, 2011, Agent Pate from the Pennsylvania Attorney General's Office and

 Detective Todd Naylor filed a criminal complaint charging Defendant with four counts of

 possession with intent to deliver under 35 P .S. § 780-113(a)(30), two counts of possession of a

 controlled substance under 35 P.S. § 780-113(a)(16), and one count of theft by deception under

 18 Pa.C.S.A. § 3922(a)(l). Defendant was arrested shortly thereafter. On January 12, 2012,

 Defendant waived his right to a preliminary.hearing, On February 13, 2012, the Commonwealth

 filed an Information charging Defendant with two counts of possession with. intent to deliver,
               .                                        .
 two counts of possession, and one count of theft by deception.

        After several continuances of Defendant's trial, Defendant and his attorney, Mr. Louis

Emmi, completed the process of selecting ajury. On March 5, 2013, before the jury was sworn,

Defendant and the Commonwealth reached an agreement in which Defendant pied guilty to two

counts of possession with intent to deliver. In exchange, the Commonwealth reduced the weight

from 146.9 grams of cocaine to 49 grams, waived the mandatory minimum sentence, and

Defendant was not required to report for execution of the sentence for a period of one month.

Defendant signed an A Information, pleading guilty to the amended charges under the agreement

and also signed a waiver of arraignment. In accordance with the plea agreement, Defendant was

sentenced on the same date to a term of imprisonment of not less than two and one-half years nor

more than five years. The Sentence Order stated that, pursuant to Defendant's plea agreement,


                                               2
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  execution of the sentence was deferred to April 4, 2013 at 9:00 a.m., when Defendant was to

  report to the Beaver County Jail to begin serving his sentence. On April 4, 2013, Defendant

  failed to appear at the Beaver County Jail as required. As a result, a bench warrant for

  Defendant's arrest· was issued on April 5, 2013. Defendant was subsequently arrested and

  incarcerated on August 4, 2013.

         On November 8, 2013, Defendant filed a prose Motion for Post Conviction Collateral

  Reliefin which he claims that his sentence was improperly calculated, that the "evidence is more

 than questionable[,]" that his counsel was ineffective, and that the "evidence [wasJ not at trial

 when [Defendant was] coerced into a plea bargain 'deal."' Prose PCRA Pet., at 4. As this was

 Defendant's first PCRA petition in this matter, the Court appointed the Beaver County Public

 Defender to represent Defendant in these proceedings, On March 14, 2014, Defendant, through

 counsel, filed an Amended Petition for Post Conviction Relief. In the Amended Petition,

 Defendant incorporates his prose PCRA petition by reference, and he averred that his March 5,

 2013 guilty plea was not knowing, intelligent, and voluntary because he was coerced by his

 counsel into accepting a plea agreement he did not entirely understand or want. As relief,

Defendant requests a new trial, an evidentiary hearing, or modification of his sentence. On April

22, 2014, the Commonwealth filed· an Answer to Defendant's Post Conviction Relief Petition in

which the Commonwealth         asserts that Defendant's     plea colloquy· demonstrates     that he

understood the plea agreement and was not coerced into accepting it. The Answer also contains a

New Matter in which the Commonwealth claims that Defendant failed to comply with the

mandates of 42 Pa.C.S.A. § 9545(d) and, therefore, is not entitled to a hearing or any relief.

       Despite the Commonwealth's      claim in its New Matter, the Court held a hearing in this

matter on June 9, 2014. During the hearing, Defendant was the only witness that was available to



                                                 3
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     testify. After Defendant testified, the Court issued an Order continuing the PCRA hearing to

     September 3, 2014. The parties were directed to ensure that Defendant's prior counsel, Louis

     Emmi, Esquire, and the Assistant District Attorney that represented the Commonwealth during

     Defendant's guilty plea, Ronald DiGiomo, appear at the hearing. On September 3, 2014, the

     Court resumed Defendant's PCRA hearing, and heard testimony from Attorney Emmi, who

    testified that Defendant admitted his guilt to him and that he entered a knowing, intelligent, and

    voluntary plea in order to avoid a greater sentence.

              The Court entered an Order denying Defendant's PCRA petitions on September 4, 2014.

    On September 5, 2014, Defendant attemptedto file prose a Post-Sentence Motion to reverse his

    conviction.1 A Notice of Appeal was then filed on October 2, 2014. On October 6, 2014,

    Defendant was directed to file a 1925(b) Concise Statement of Matters Complained of on

    Appeal. Defendant moved for an extension of time in which to file his Concise Statement, and

    this was granted by the Court on October 27, 2014. On November 7, 2014, Defendant filed his

    Concise Statement.

                                                   ANALYSIS
         ..
              In his Concise Statement, Defendant raises the following two issues: (1) "the Court erred

in denying his PCRA Petition alleging ineffective assistance of counsel at the time of the

defendant's plea based upon the Defendant feeling coerced and pressured into pleading guilty";

and (2) "the Court erred in denying his PCRA Petition alleging ineffective assistance of counsel

because counsel failed to explain by way of colloquy to the Appellant that he was entering a pl_ea
I
  The Motion was disregarded by the Court as an attempt to have hybrid representation when Defendant was already
represented by counsel. Commonwealth v. Ali, 608 Pa. 71, 89, 10 A.3d 282, 293 (2010) (where "appellant was
represented by counsel on appeal," "his pro se Rule 1925(b) statement was a legal nullity."); Commonwealth v.
Ellis. 534 Pa. 176, 626 A.2d 1137, 1139, 1141 (1993) ("(T]here is no constitutional right to hybrid representation
either at trial or on appeal. ... (A defendant may not] confuse and overburden the court by his ownpro se filings of
briefs at the same time his counsel is filing briefs on his behalf.").



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  to an amended information and would be sentenced to the amended information presented by the

  Commonwealth."

         To be eligible for relief-under the Commonwealth of Pennsylvania's Post Conviction

 Relief Act (hereinafter the "PCRA"), the petitioner must plead and prove by a preponderance of

 the evidence four general requirements. 42 Pa.C.S.A. §§ 9541M9546. First, the petitioner must

 have been convicted of a crime under Pennsylvania law and subsequently sentenced to either

 incarceration or probation. 42 Pa.C.S.A. § 9543(a)(l). Second, the conviction and sentence must

 have resulted from at least one of the errors and/or violations elucidated in § 9543(a)(2) of the

 PCRA. Third, the allegation of error must not have been previously litigated or waived by the

 petitioner. Id. ~t § 9543(a)(3). An issue has been previously litigated if "the highest appellate

 court in which the petitioner could have had review as a matter of right has ruled on the merits of

the issue." Id. at§ 9544(a)(2). A PCRA claim is waived "if the petitioner could have raised it but

failed to do so before trial, at trial, during. unitary review, on appeal or in a prior state

postconvictionproceeding." Id. at§ 9544(b). "'A petitioner can avoid a finding of waiver under

the PCRA by making an adequate and properly layered claim of ineffective assistance of counsel

at his first available opportunity to do so.!" Commonwealth v. Rivera, 2003 Pa.Super. 29, 816

A.2d 282, 287 (Pa.Super. 2003) (citing Commonwealthv. AbdulMSalaam, 808 A.2d 558, 560 n. 3

(Pa. 2001)). Finally, the petitioner must demonstrate that the failure to litigate the claim could

not have been "the result of any rational, strategic or tactical decision by counsel." Id at §

9543(a)(4). .

       Neitherparty disputes that Defendant meets the first requirement for eligibility for relief,

as he was convicted of a crime under Pennsylvania law and· subsequently sentenced to




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      incarceration. The next requirement mandates that the conviction and sentence resulted from one

     or more of the following:

            (i) A violation of the Constitution of this Commonwealth or the Constitution or
            laws of the United States 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.

            (ii) 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.

            (iii) A plea of guilty unlawfully induced where the circumstances make it likely
            that the inducement caused the petition to plead guilty and the petitioner is
            innocent.                                                  ·

            (iv) The improper obstruction by government officials of the petitioner's right of
            appeal where a meritorious appealable issue existed and was properly preserved
            in the trial court.

            (v) Deleted.

           (vi) The unavailability at the time of trial of exculpatory evidence that has
           subsequently become available and would have changed the outcome of the trial
           if it had been introduced.

           (vii) The imposition of a sentence greater than the lawful maximum.

           (viii) A proceeding in a tribunal without jurisdiction.

    42 Pa.C.S.A. § 9543(a)(2).

           Defendant's two issues meet these criteria. 42 Pa.C.S.A. § 9543 (a)(2)(ii), (iii).           Before

considering whether any of the allegations of error were previously litigated or waived, the Court

must consider whether error actually occurred.2 Both of Defendant's arguments allege that his

former counsel, Louis Emmi, was ineffective. In his first claim, Defendant alleges that he was

2
 Defendant had raised other arguments in his PCRA Petitions regarding the weight and sufficiency of the evidence
and of the calculation of his sentence under the Sentencing Guidelines. By failing to include any of these in his
Concise Statement they are waived and so unaddressed in this Opinion. Conunonwealth v. Butler, 571 Pa. 441, 446,
812 A.2d 631, 633-34 (2002) ("PCRA appellants, in order to preserve their claims for appellate review, must
comply whenever the PCRA court orders them to file a Statement of Matters Complained of on Appeal under Rule
1925. Accordingly, any issues not raised in a Rule 1925(b)statement are waived.").

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  coerced into entering a guilty plea. In his second claim, Defendant alleges that his counsel failed

  to explain to him that he was pleading to, and would be sentenced under, an amended

  information, In other words, under either of Defendant's claims, Attorney Enuni's alleged

  ineffectiveness stems from his efforts to coerce Defendant into entering a plea that was not

  knowing, voluntary, and intelligent.

         The PCRA permits a petitioner to seek post-convictionrelief for a claim of the ineffective

  assistance of trial counsel. 42 Pa.C.S.A. § 9543(a)(2)(ii). Under Pennsylvania law, there is a

 basic presumption that counsel acted effectively. Commonwealth v. Jones, 942 A.2d 903, 906

 (Pa.Super, 2008). Thus, the burden rests on the petitioner to demonstrate ineffectiveness.Id. To ·

 do so, the petitioner ''must plead and prove by a preponderance of evidence that his conviction

· resulted from ineffective assistance of counsel which, in the circumstances of the particular case,

 so undermined the truth-determining process that no reasonable adjudication of guilt or

 innocence could have taken place." Conunonwealth v. Granberry, 644 A.2d· 204, 207 (Pa.Super.

 1994) (citing Commonwealth v. Dukeman, 565 A.2d 1204 (Pa.Super. 1989)).

        Pennsylvania courts apply a three-prong test to determine whether the petitioner has

established ineffectiveness of counsel. Commonwealth v. Sneed, 899 A.2d 1067, 1076 (Pa.

2006). The petitioner must first demonstrate that the issue underlying the claim has arguable

merit. Id. Next, if the claim does have arguable merit, it must then be determined whether

counsel's acts or omissions had some reasonable basis designed to serve the interests of his

client. Id. "Once it has been determined that the particular course of action chosen by counsel

had some reasonable basis designed to effectuate his client's interests, counsel will be deemed

constitutionally effective.'' Commonwealth v. Miller, 431 A.2d 233, 235 (Pa. 1981) (citing

Commonwealth ex rel. Washington v. Maroney, 235 A.2d 349 (Pa. 1978)). If a reasonable basis



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   for counsel's actions cannot be found, the petitioner must show that the ineffectiveness          of

  counsel resulted.in prejudice to him. Sneed, 899 A.2d at 1076. Failure to satisfy any of the three

  prongs will require rejection of the claim. Commonwealth v. !1ammond, 953 A.2d 544, 556

  (Pa.Super. 2008).

         "It is clear that a criminal defendant's right to effective counsel extends to the plea

  process, as well as during trial.'' Commonwealth v. Wah, 2012 Pa.Super. 54; 42 A.3d 335, 338

  (2012) (citing Commonwealth v. Allen, 833 A.2d 800, 802 (Pa.Super. 2003)). "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. Commonwealth v. Willis, 2013 Pa.Super. 143, 68 A.3d 997, 1001-02 (citing Wah, 42 A.3d

 at 338). "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." Willis, 68 A.3d at 1002-(citing Wah, 42 A.3d at 338). "[T]he law

 does not require that [the defendant] be pleased with the outcome of his decision to enter a plea

 of guilty: All that is required is that [his] decision to plead guilty be knowingly, voluntarily, and

 intelligentlymade." Willis, 68 A.3d at 1002 (citing Commonwealth v. Anderson, 995 A.2d 1184,

 1192 (Pa.Super, 2010)). Having stated the relevant law, the Court turns now to Defendant's

arguments.

        Defendant'sargues that his counsel was ineffective in allegedly compelling him to accept

a guilty plea, and in failing to properly inform him that he was pleading to an amended

information, and therefore that these caused him to enter a guilty plea that was not knowingly,

intelligently, or voluntarily made. These issues may have had arguable merit if Defendant had

presented credible evidence to prove his allegations. But Defendant has failed to do this. The



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      evidence presented by Defendant was his written guilty plea' and his own testimony, in which he

      claimed to have lied under oath when he made his plea.4 "Recanting testimony is exceedingly

      unreliable, and it is the duty of the court to deny a new trial where it is not satisfied that such

      testimony is true. There is no less reliable form of proof, especially when it involves an

    · admission of perjury." Commonwealth v. Coleman, 438 Pa. 373, 377, 264 A.2d 649, 651 (1970)

     (external citations omitted). See also Willis, 2013 PA Super 143, 68 A.3d at 1009;

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

            Defendant's answers and written initialed corrections at the time of the plea, combined

    with his oral admission of guilt to the facts of the crimes, his failure at that time to indicate in

    any way to the court that he was being compelled against his will to enter a plea, and his failure

    to file any motion to withdraw his plea, cast considerable doubt on his recanted testimony in

    which he claimed that he perjured himself at the plea hearing with regard to his plea being

    voluntary.

           In contrast to Defendant's incredible testimony, this Court, after closely observing

 Attorney Emmi's demeanor and listening carefully to his testimony, found him to be a credible

 witness. Mr. Emmi testified that Defendant's plea was knowingly, intelligently, and voluntarily


3
  On Defendant's written and signed guilty plea, under the question, "Has anybody forced you to enter this plea of
 guilty and/or plea agreement?" The letters "Ye" are struck out, followed by "no" and Defendant's initials. This
question was preceded by 19 consecutive questions which Defendant answered "Yes." Defendant admitted during
the PCRA hearing that he wrote his initials by this change. Defendant also initialed the bottom of the page
containing the question, and signed the guilty plea on the final page.
4
  When asked whether he answered the questions asked of his attorney during his colloquy under oath, Defendant
stated, "Right. But when I took the deal, I lied." N.T. 6/9114, at 49. When later asked whether he acknowledged the
facts under oath to the District Attorney's Office during the plea colloquy, Defendant stated, "Yeah, I lied, I lied
under oath." N.T. 6/9/14, at 91.

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   made, that at no point did he tell Defendant he would not return to represent him at trial, and that

   Defendant had actually admitted his guilt to him. Further, Mr. Emmi's testimony that he never

   told Defendant he would not return to represent him at trial is bolstered by the fact that he and

   Defendant had actually already selected a jury. In addition to this factual determination as to the

   credibility of Mr. Emmi's testimony and the incredibility of Defendant's testimony, this Court

  also notes the substantial benefit Defendant obtained by his plea agreement. This Court informed

  Defendant that it was against the offered plea agreement, and that it ultimately only accepted it

  upon in-person approval from the Attorney General's office.

         By entering the plea agreement, which reduced the weight of cocaine from 146.9 grams

  to 49 grams, Defendant received a sentence of thirty to sixty months, substantially less than the

 seventy-two to ninety months indicated by the Guidelines for the 146.9 grams weight or receive

 the fifteen year statutory maximum. Additionally, the Commonwealth did not request the

 application of the mandatory minimum sentence of seven years that would apply in this case

 because of Defendant's prior drµg convictions. Additionally, through the advocacy of Mr. Emmi,

 Defendant W11$ provided a one month period before being required to report to the Beaver

 County Jail. See Pollard, 832 A.2d 517, 524 (Pa.Super. 2003) ("The desire of an accused to

benefit from a plea bargain is a strong indicator of the voluntariness of his plea.").

        Based on the Court's observation of Defendant's demeanor and testimony at the time of

his plea compared with his later incredible recanted testimony, based on the credibility of Mr.

Emmi's testimony, and considering the favorable terms of the plea agreement Mr. Emmi secured

for Defendant, this Court finds that Defendant has not met his burden of proving that he was

unlawfully induced into entering his plea. Nor is the Court convinced that Defendant did not

understand that he was pleading to reduced charges as outlined in the plea agreement, placed on



                                                 10
                                                                                                       Circulated 04/30/2015 04:31 PM



     the record, and memorialized by Defendant when he signed the amended Information in open

     court, waiving his arraignment to the reduced charges. N.T. 3/5/13, at 22-24.5 The record clearly

     shows that Defendant was informed in open court of the reduced charges he was pleading to, the

     substantial benefit he obtained from pleading to those reduced charges in terms of the reduced

     weight and avoidance of them mandatory minimum· sentence was explained to him, and he

     himself signed the ·amended Information and waived -his arraignment. Based on these facts

     clearly present in the record, Defendant's argument that Mr. Emmi did not explain to him that he

     was pleading to an amended Information does not even meet the arguable merit prong for

 ineffective assistance counsel. See Sneed, 899 A.2d at 1076.

            Rather, based on the evidence and the record, this Court finds that Defendant's plea was

 indeed knowingly, intelligently, and voluntarily made. Because his plea was knowingly,

 intelligently; and voluntarily made, Defendant's arguments that he was ineffectively represented




 5
  In any event, Defendant did not include within any of his PCRA Petitions, nor amend any of his PCRA Petitions to
include, his second argument of ineffective assistance of counsel with regard to the issue of his plea to an Amended
Information. By failing to include this within his PCRA Petitions, this particular issue should be treated as waived,
and including it within his Concise Statement is not effective to preserve the issue for appeal. Commonwealth v.
Williams, 2006 Pa.Super. 121, 900 A.2d 906, 909 (2006). In Williams, the court stated:

           To the extent that Appellant's issue is couched in terms of trial counsel's and/or appellate counsel's
           ineffectiveness, our analysis is as follows. Under Pa.R.Crim.P. 902(B), ''[e]ach ground relied upon
           in support of the relief requested shall be stated in the [PCRAJ petition. Failure to state such a
           ground in the petition shall preclude the defendant from raising that ground in any proceeding for
           post-conviction collateral relief." See also Commonwealth v. Wharton, 571 Pa. 85, 811 A.2d 978,
           987 (2002). In the instant case, Appellant failed to raise, in his PCRA petition, ineffectiveness of
           trial counsel or appellate counsel with respect to allocution. Thus, those issues are waived.

          Even if the PCRA court had ordered Appellant to file a Concise Statement and Appellant had
          raised the allocution issue therein, that process would not avoid waiver. Generally, including an
          issue in a Concise Statement does not revive issues that were waived in earlier proceedings.
          Commonwealth v. McAfee, 849 A.2d 270, 275 (Pa.Super.2004), appeal denied, 580 Pa. 695, 860
          A.2d 122 (2004).

Thus, to the extent that Defendant's second argument differs from his first and the issue of his entering a knowing,
intelligent, and voluntary waiver, it is waived by Defendant's failure to assert it within a PCRA Petition below. Id.


                                                           11
                                                                                    Circulated 04/30/2015 04:31 PM



by counsel with regard to his entering a guilty plea have no merit. See Willis, 2013 Pa.Super.

143, 68 A.3d at 1001-02.

                                      CONCLUSION

      For the aforementioned reasons, Defendant's appeal should be denied.

                                                         BY THE COURT




                                                                                                        J.


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