J-S67027-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA            :    IN THE SUPERIOR COURT OF
                                        :          PENNSYLVANIA
                                        :
            v.                          :
                                        :
                                        :
ANDRE JONES,                            :
                                        :
                  Appellant             :         No. 3300 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-0006645-2012

BEFORE:    GANTMAN, P.J., MUSMANNO, J., and STEVENS*, P.J.E.

MEMORANDUM BY MUSMANNO, J.:                    FILED DECEMBER 12, 2017

     Andre Jones (“Jones”) appeals, pro se, from the Order dismissing his

first Petition filed pursuant to the Post Conviction Relief Act (“PCRA”). See

42 Pa.C.S.A. §§ 9541-9546. We affirm.

     In its Opinion, the PCRA court set forth the relevant factual and

procedural history, which we adopt for the purpose of this appeal.       See

PCRA Court Opinion, 12/21/16, at 1-3.

     In his brief, the entirety of which is only three pages, Jones identifies

six arguments, see Brief for Appellant at 2-3 (unnumbered), all of which

“appear to be based on the contention that he had negotiated a plea

agreement with a sentence of 10 to 20 years in prison, which the




____________________________________
* Former Justice specially assigned to the Superior Court.
J-S67027-17


Commonwealth then allegedly modified without his consent.”               PCRA Court

Opinion, 12/21/16, at 4.1

              We review an order dismissing a petition under the PCRA
       in the light most favorable to the prevailing party at the PCRA
       level. This review is limited to the findings of the PCRA court
       and the evidence of record. We will not disturb a PCRA court’s
       ruling if it is supported by evidence of record and is free of legal
       error.

Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (citations

omitted).

       We will consider Jones’s first two claims together, as they are related.

In his first claim, Jones argues that the Commonwealth committed

prosecutorial misconduct by making “an offer it never intended to keep to

get a guilty plea.”     Brief for Appellant at 2 (unnumbered).          In his second

claim, Jones argues that, due to the Commonwealth’s error, his guilty plea

was entered under false pretenses. Id.

       Initially, we observe that Jones failed to provide an adequate

discussion of his claims with citations to the record. See Pa.R.A.P. 2119(a)

(requiring that each point in an argument contain “such discussion and

citation    of   authorities     as     are    deemed   pertinent.”);     see   also

Commonwealth v. Johnson, 985 A.2d 915, 924 (Pa. 2009) (stating that

____________________________________________


1 Jones did not include a separate statement of questions involved in his
brief.  See Pa.R.A.P. 2116(a) (providing that “[t]he statement of the
questions involved must state concisely the issues to be resolved…. No
question will be considered unless it is stated in the statement of questions
involved.”). Nevertheless, we will not find waiver on this basis.



                                           -2-
J-S67027-17



“where an appellate brief fails to provide any discussion of a claim with

citation to relevant authority[,] or fails to develop the issue in any other

meaningful fashion capable of review, that claim is waived.”). Accordingly,

Jones’s first two claims are waived.             Moreover, Jones’s prosecutorial

misconduct claim is not cognizable under the PCRA, and is also waived due

to his failure to raise the issue before the trial court or on direct appeal. See

42 Pa.C.S.A. § 9543(a)(2) (setting forth the categories of errors for which

the PCRA provides a remedy); id. 9544(b) (noting that an allegation raised

in a PCRA petition 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 post-conviction proceeding.”); see also Commonwealth v. Tedford,

960 A.2d 1, 28-29 (Pa. 2008) (stating that where “no objection was raised,

there is no claim of ‘prosecutorial misconduct’ as such available.”).

       We will consider Jones’s third, fourth, and fifth claims together.     In

these claims, Jones asserts that his plea counsel was ineffective for failing to

withdraw     Jones’s guilty plea, where Jones did not agree with the

Commonwealth’s “modified offer.” Brief for Appellant at 2-3 (unnumbered).

Jones also claims that his counsel was ineffective for failing to object, during

the sentencing hearing, to alleged facts and offenses to which he did not

plead guilty. Id. at 3.2

____________________________________________


2  Jones again fails to provide an adequate discussion of his claims with
citations to the record. See Pa.R.A.P. 2119(a); see also Johnson, supra.



                                           -3-
J-S67027-17



       In its Opinion, the PCRA court considered Jones’s claims that plea

counsel was ineffective for failing to withdraw his guilty plea, set forth the

relevant law, and concluded that these claims lack merit. See PCRA Court

Opinion, 12/21/16, at 4-8. We agree with the sound reasoning of the PCRA

court, and affirm on this basis as to Jones’s challenges to the effectiveness

of his plea counsel. See id. Further, as the PCRA court noted in its Opinion,

“[p]lea counsel did file a post-sentence [M]otion on [Jones’s] behalf, raising

a claim that the prosecutor had made reference during her sentencing

argument to allegations that were not part of the facts admitted to during

the guilty plea.” Id. at 3 n.2. Accordingly, Jones is not entitled to relief on

these claims.

       In his sixth claim, Jones argues that the trial court erred by “not

allowing [Jones] the chance to withdraw his plea when [the Commonwealth]

admitted there was an error in offer, knowing what the original offer was.”

Brief for Appellant at 3 (unnumbered).3

       Jones failed to raise this claim in his Concise Statement, and therefore,

it is waived.      See Pa.R.A.P. 1925(b)(4)(vii) (stating that “[i]ssues not

included in the Statement … are waived.”); see also Commonwealth v.

Lord, 719 A.2d 306, 309 (Pa. 1998) (stating that “[a]ny issues not raised in

a 1925(b) statement will be waived.”). Moreover, we cannot conclude that

____________________________________________


3We additionally observe that Jones failed to develop his claim in a
meaningful fashion. See Pa.R.A.P. 2119(a); see also Johnson, supra.



                                           -4-
J-S67027-17



the trial court erred by denying Jones the opportunity to withdraw his plea,

where Jones did not file a motion to withdraw his plea, and we have

determined that his plea counsel was not ineffective for failing to do so.

     Order affirmed.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/12/2017




                                     -5-
                                                                   Circulated 11/16/2017 11:39 AM




      IN THE COURT OF COMMON PLEAS OF MONTGOMERY COUNTY,
                          PENNSYLVANIA
                        CRIMINAL DIVISION


COMMONWEALTH OF                                                       NO.    6645-12
PENNSYLVANIA

       V.


ANDRE MICHAEL JONES

                                                                                     rat
                                  OPINION
SILOW,      J.                                          DECEMBER
                                                                            c,
                                                                                 ,   Y016
                                                                                            -

      Andre Michael Jones ("defendant") appeals from the order denying his

petition under the Post Conviction Relief Act ("PCRA"). For the reasons set
forth below, the order should be affirmed.

I.    FACTUAL AND PROCEDURAL HISTORY

      Between February 2007 and August 27, 2012, defendant engaged in

vaginal intercourse on numerous occasions with his step -daughter ("A.W.'            )




who, at the time, was under the age of 13. (N.T.   3/12/14,   p. 15) He also, on

multiple occasions throughout the same time span, performed oral sex on
A.W., had A.W. perform oral sex on him and penetrated A.W.'s vagina with a

vibrator. (Id. at 16)
      Defendant was charged with 10 counts of rape of a child less than 13
years of age, 10 counts of statutory sexual assault, 20 counts of involuntairy
deviate sexual intercourse with a child less than 16 years of age, 10 counts of

involuntary deviate sexual intercourse with a child less than 13 years of age,
10   counts of aggravated indecent assault of a child, 10 counts of aggravatled
indecent assault, 10 counts of aggravated indecent assault of a person less
than 16 years of age, one count of endangering the welfare of a child and one
count of corruption of minors. On March 12, 2014, he entered an open guilty
plea to one count of rape of a child and one count of involuntary deviate sexual

intercourse of a child, both felonies of the first degree. In return, the

Commonwealth did not seek a mandatory sentence and did not pursue the

remaining 80 charges. Sentencing was deferred and this court ordered a jare-

sentence investigation report and an assessment by the Sexual Offender
Assessment Board. The assessment concluded defendant was not a sexually
violent predator.

        Defendant appeared for sentencing on August 15, 2014, at which tune

counsel agreed that the standard range for each conviction was 14 to 20 years.

(N.T.   8/15/14,   p. 6) The statutory maximum for each offense was 40 yea ls.

This court imposed a standard -range sentence 20 to 40 years on the rape 'la a

child conviction and a consecutive 10 -year period of probation on the

involuntary deviate sexual intercourse conviction.
        Defendant, through counsel, filed a timely motion for reconsideration of

sentence, which this court denied in an Order dated September 15, 2014.
Defendant, through counsel, filed a direct appeal. The Pennsylvania Superior
Court affirmed defendant's judgment of sentence. Commonwealth          v.   Jone,
2959 EDA 2014, memorandum (Pa. Super. June 23, 2015). Defendant did not




                                          2
                                                                              1




file a petition for allowance of appeal with   our Supreme Court, making h4
judgment of sentence final on or about July 23, 2015.
      On June 26, 2016, the Montgomery County Clerk of Courts docket d a

pro se PCRA petition from defendant.' Defendant alleged that he had
negotiated a 10 to 20 year sentence, only to have the Commonwealth chall-ige it

on the day of sentencing to 20 to 40 years. He further claimed he had

instructed his attorney that he did not want to accept the modified offer arid
that his plea counsel had been ineffective for failing to raise the issue in a post-
sentence motion. 2
      PCRA counsel appointed by this court concluded in a letter prepared in

accordance with Commonwealth      u.   Finley, 550 A.2cI213 (Pa. Super. 1988)1, that

defendant was not eligible for relief. This court subsequently issued a notice of
intent to dismiss the PCRA petition without a hearing and granted the
withdrawal of PCRA counsel's appearance. Defendant filed a response to he

notice. This court, after reviewing the response, dismissed the petition by

Order dated September 26, 2016. Defendant filed a pro se notice of appeeil and

subsequently complied with this court's directive to produce a concise
statement of errors in accordance with Pennsylvania Rule of Appellate
Procedure 1925(b).



1Although the petition is not dated, the enclosing envelope bears a postmark of
June 22, 2016.
2 Plea counsel did file a post -sentence motion on defendant's behalf, raising a
claim that the prosecutor had made reference during her sentencing argument
to allegations that were not part of the facts admitted to during the guilty plea.

                                           3
       ISSUES

       Defendant raises the following issues in his concise statement:

             1.    Whether trial counsel was ineffective for: (A) failing to
                   secure a written copy of the Commonwealth's plea
                   offer accepted by the defendant; and (B) failing to
                   withdraw [defendant's] plea of guilty when the
                   Commonwealth at sentencing did admit plea, accepted
                   by defendant and the court, was in error?

             2.    Whether the Commonwealth committed prosecutorial
                   misconduct by breaching the plea agreement offered or
                   in the alternative for inducing the defendant to plead
                   guilty with an offer the prosecution never intended to
                   honor?

             3.    Whether [defendant's] plea was unknowing,
                   unintelligent, and involuntary, where the plea
                   accepted by the Court was not the plea reasonably
                   understood by the [defendant] as offered by the
                   Commonwealth?

III.   DISCUSSION

       1.    DEFENDANT'S CLAIMS RELATED TO HIS GUILTY PLEA ARE
             BELIED BY THE RECORD.

       Defendant's three issues, when read in totality, appear to be based do

the contention that he had negotiated a plea agreement with a sentence of 10

to 20 years in prison, which the Commonwealth then allegedly modified

without his consent. Because that contention is belied by the record,
defendant cannot demonstrate a basis for post-conviction relief.3

3 With regard to defendant's allegation of that the Commonwealth breached the
plea agreement, this claim fails for the additional reason that it could have
been, but was not, raised on direct appeal. See Commonwealth v. Ford, 809
A.2d 325, 329 (Pa. 2002). To the extent defendant alleges his plea counsel was
ineffective for failing to file a post -sentence motion challenging the knowing,
voluntary and intelligent nature of the open plea, this claim fails because, as
will be demonstrated infra, defendant made a knowing, voluntary and

                                        4
        A PCRA    petitioner seeking relief for alleged ineffectiveness of counsel:I

must prove that the alleged ineffectiveness "so undermined the truth -
determining process that no reliable adjudication of guilt or innocence could
have taken place." 42 Pa. C.S.             §   9543(a)(2)(ii). Counsel is presumed to be

effective, and the petitioner carries the burden to prove otherwise. See

Commonwealth           u.   Payne, 794 A.2d 902, 906 (Pa. Super. 2002). To prove

counsel ineffectiveness, the petitioner must show that:               (1)    his underlying
has arguable merit;          (2)   counsel had no reasonable basis for his action or
inaction; and    (3)    the petitioner suffered prejudice as a result. Commonwealth

v.   Jones, 71 A.3d 1061, 1063 (Pa. Super. 2013).
        "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.   Hickman, 799
A.2d 136, 141 (Pa. Super. 2002) (citation omitted).              A   defendant "is bound by
[his] statements made during a plea colloquy, and may not successfully                      assert
claims that contradict such statements." Commonwealth                       v.    Muhammad, 794

A.2d 378, 384 (Pa. Super. 2002) (citation omitted).

        The notes of testimony from the open guilty plea hearing plainly indicate

that defendant agreed to enter an open guilty plea to rape of a child and
involuntary deviate sexual intercourse, with no mention of a negotiated                    ori

promised sentence:


intelligent decision to plea guilty. See Commonwealth v. Treiber, 121 A.3d 435,
445 (Pa. 2015) ("counsel cannot be deemed ineffective for failing to raise a
meritless claim.").

                                                    5
               Q.    Do you       understand that you are here to plead
                     guilty, an open plea     -
               A.    Uh-huh. Yes, I am.

               Q.    -- tothe two charges as articulated by the
                     Assistant District Attorney?
               A.    Yes.



               Q.    Okay. Has your attorney explained to you the
                     maximum period of incarceration and/or fine
                     that you are exposed to on both of these charges
                     you are pleading guilty to today?

               A.    Yes.

               Q.    And knowing the maximum exposure, are you
                     still willing to plead guilty?

               A.    Yes.

                     It will be up to me to make a determination of
                     what your sentence will be. Do you understand
                     that?
               A.    Yes,    I   do.

               Q.    I mean, naturally, I will be paying close attention
                     to the guidelines that are put forth that I have to
                     follow. But he has explained to you the
                     maximum you are exposed to?

               A.    Yes, he did.

(N.T.,   3/12/14, pp. 10-11, 13-14)
         In addition to the oral colloquy, defendant executed a written colloquy in

which he acknowledged that no promises had been made to him other than the

terms of the plea agreement. (Written Guilty Plea Colloquy,1 31).




                                              6
       In exchange for defendant's agreement to admit his guilt to two charges,

the Commonwealth agreed to withdraw 80 additional charges. (N.T., 3/12/14,

p. 20) Because the bottom end of the standard guideline range exceeded any

mandatory minimum sentence, the Commonwealth indicated it did not intend
to request the imposition of a mandatory minimum. Id. at 7.

      At defendant's sentencing hearing, the Commonwealth noted             at the,
outset that the first page of the Pre -Sentence Investigation   ("PSI")   report
indicated the maximum penalty for counts     ne and forty-one is 20 years v!ilien
it should have been 40 years. (N.T., 8/15/14, p.3) Defendant now seizes .on

that correction in an attempt to support a claim that he had a negotiated plea
agreement involving a sentence of 10 to 20 years. 'Defendant, however, did not
object to the correction of this typographical error at the sentencing hearing;

his counsel did correct certain information in the PSI about defendant's fainily
history. Indeed, defendant interjected during this portion of the sentencing

proceeding, id. at 4-5, which highlights his prior silence when the

Commonwealth made note of the typographical error in the PSI. Counsel also

agreed to the calculation of the sentencing guidelines. Id. at 5-6. When giVing

the opportunity to allocute, defendant apologized for what had happened; he
did not mention the correction to the maximum penalty on the first page of the

PSI. Id. at 24.

      What defendant did do is acknowledge under ath at the open guiltylplea

hearing that the undersigned would decide the sentence to be imposed. He
further stated under oath that the answers he gave in his written guilty plea


                                        7
    colloquy were truthful. Those answers included the affirmative statement that

    no promises had been made to him in connection with guilty plea other than

    the terms of his agreement. The plea agreement recited in court during the

    open guilty plea contained no mention of a negotiated sentence, As such,

    defendant should not be heard now to contradict his sworn testimony at the
    open guilty plea hearing in order to cast doubt on the knowing, voluntary, and

    intelligent nature of the decision he made to enter an open guilty plea to only

    two counts in an 82 -count Information and leave the length of the sentence to

    the discretion of this court, subject to the undisputed sentencing guidelinies.

W.        CONCLUSION

          Based upon the foregoing, it is respectfully submitted that the order

denying defendant's PCRA petition be affirmed.

                                                                      BY   THEc9uR          :


                                                                                     f




                                                                      GARY      .   BjLOW




Sent onalle.A o the following:
Clerk of Courts'(Original)
District Attorney's Office
Andre Michael Jones (LR 5773)
        SCI Benner Township
        301 Institution Drive
        Bellefonte, PA 16823

I   hereby certify that I have forwarded a copy of this Opinion to Andre Michael Jones at the,
    b. e address  by certified mail return receipt requested and regular mail.




                                                  8
