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NON -PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA                   1   IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                           Appellee

                      v.

MICHAEL CURTIS ANGSTADT

                           Appellant                   No. 2135 MDA 2015


                Appeal from the PCRA Order November 13, 2015
                 In the Court of Common Pleas of Snyder County
               Criminal Division at No(s): CP- 55 -CR- 0000224 -2011
                                           CP- 55 -CR- 0000404 -2011


BEFORE:      BOWES, J., PANELLA, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                         FILED NOVEMBER 08, 2016

         Michael Curtis Angstadt ( "Appellant ") appeals from the order entered

in    the Snyder County Court of Common Pleas, which dismissed his petition

filed for relief pursuant to the Post Conviction Relief Act      ( "PCRA ").1   We

affirm.

         The trial court set forth the relevant facts and procedural history of

this appeal as follows:

            On January 20,    2012[, the Office of the Attorney General
            ( "OAG ")] filed a 5 (five) [c]ount [i]nformation against
            [Appellant]. Counts 1 (one) through 3 (three) involved the
            crime of possession with intent to deliver a controlled
            substance [("PWID ")], specifically marijuana[,] and
            involved three (3) different dates. Count 4 (four) was the
            crime of criminal conspiracy to possess with intent to


1    42 Pa.C.S. §§ 9541-9546.
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        deliver a controlled substance, specifically marijuana. All of
        the offenses are ungraded felonies.

        On April 9, 2012[,] the two (2) cases were consolidated for
        trial and a jury was selected with trial to begin June 12,
        2012. Subsequent to the selection of the jury, the [c]ourt
        was not [sic] informed that [Appellant] intended to enter a
        plea[,] and a plea hearing was scheduled for June 12,
        2012.

        On June 12, 2012    [Appellant] entered a [g]uilty [p]lea to
        Counts 1 through 4 in CR- 404 -2011.         The [c]olloquy
        entered by [Appellant] indicated a maximum punishment
        for each offense of fifteen (15) years with a maximum fine
        of $250,000.00. The aggregate total was sixty (60) years'
        incarceration and /or $1,000,000.00 in fines. The Plea
        Agreement read:

           "On Count Nos. 1, 2 and 3, [Appellant] shall receive
           consecutive minimum sentences of two and one half
           (21/2) years. On Count No. 4, [Appellant] shall
           receive a consecutive minimum sentence of one and
           one half (11/2) years for a total of nine (9) years with
           Recidivism Reduction Incentive. The Commonwealth
           will not pros all remaining [c]ounts filed under CR-
           404 -2011 and all [c]ounts filed under CR- 224 -2011.
           [Appellant] will cooperate with the Commonwealth in
           Commonwealth v. Neidig. [Appellant] agrees the
           Commonwealth ... shall suffer substantial - -12]
           should [Appellant] attempt to withdraw his guilty
           plea prior to sentencing. [Appellant] shall receive
           credit for all time served."

        The [c]ourt ordered the preparation of a [p]re- [s]entence
        [i]nvestigation [( "PSI ")] [r]eport and scheduled the matter
        for sentencing. [Appellant] appeared before the [c]ourt on
        August 21, 2012 for sentencing. The [PSI r]eport revealed
        an error in       the maximum punishment listed on


2The dashes are on the plea agreement, but the record indicates Appellant
was aware that the Commonwealth would suffer substantial prejudice
should he withdraw his plea.


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            [Appellant's] [g]uilty [p]lea [c]olloquy. As a result of the
            revelation of the error, counsel represented to the [c]ourt
            that the maximum punishment on each [c]ount was ten
            (10) years with a maximum possible $100,000.00 fine.
            The aggregate maximum [Appellant] was exposed to was
            forty (40) years' incarceration and a $400,000.00 fine. In
            addition, it was agreed that for sentencing purposes the
            amount of marijuana involved would be less than one (1)
            pound. The parties agreed that [Appellant's] aggregate
            minimum sentence would be seven (7) years. The fines
            and maximums would be in the [c]ourt's discretion.

            The    [c]ourt addressed     these   modifications   with
            [Appellant]. [Appellant] acknowledged to the [c]ourt that
            he understood the discussions of counsel and the [c]ourt,
            that he understood the proposed modifications and that he
            was in agreement with those.

            The [c]ourt then imposed a sentence consistent with the
            [p]lea [a]greement of seven (7) years to thirty (30) years'
            incarceration along with a $200.00 fine. The sentence
            mirrored the [p]lea [a]greement exactly.

            There were no requests to modify the sentence nor was           a
            direct appeal taken.

            [Appellant] initially filed a [PCRA petition] pro se. The
            [c]ourt appointed counsel to represent [Appellant] and an
            [a]mended [PCRA p]etition was filed. [Appellant] then
            secured the services of his present counsel and a second
            [a]mended [p]etition for [p]ost -c]onviction [c]ollateral
            [r]elief was filed.

            Briefs were prepared by the parties and a hearing held on
            April 9, 2015. The [c]ourt ordered that [b]riefs be filed
            subsequent to the hearing[, and counsel complied].

PCRA Court Opinion, filed November 13, 2015, at        1   -3.

      On November 13, 2015, the PCRA court denied Appellant's                    PCRA

petition.    On December 7, 2015, Appellant     timely filed     a   notice of appeal.



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Both Appellant and the PCRA court complied with Pennsylvania Rule of

Appellate Procedure 1925.

       Appellant raises the following issue for our review:

          WHETHER THE [TRIAL COURT] ERRED IN DENYING
          APPELLANT'S [PCRA] PETITION REQUESTING PERMISSION
          TO WITHDRAW HIS PLEAS OF GUILTY TO FOUR CRIMINAL
          OFFENSES BECAUSE SAID PLEAS WERE INDUCED AS A
          RESULT OF THE INEFFECTIVE ASSISTANCE OF TRIAL
          COUNSEL?

Appellant's Brief at 3.

       Appellant argues that his trial counsel was ineffective for failing to

advise him of the maximum penalties for each of the crimes with which he

had been charged and for allowing him to believe the court could sentence

him to sixty (60) years' incarceration, when the maximum sentence for his

crimes, if imposed consecutively, was thirty -five (35)       years.3   Further, he

contends counsel advised him that he would be eligible for the recidivism

risk reduction incentive program    ( "RRRI ")4   when he entered into the plea,

and he was not, in fact, RRRI eligible.      Appellant additionally asserts that



3  Appellant's aggregate maximum sentence for his three (3) PWID
convictions and his conspiracy to commit PWID was forty (40) years. See
Commonwealth v. Hoke, 962 A.2d 664, 668 (Pa.2009) ( "inchoate crimes
have the same maximum sentences as the underlying crimes to which they
relate ").


4   RRRI is a sentencing program   that allows qualified, non -violent offenders
to become eligible for parole before they have completed their minimum
sentence of incarceration if they complete requisite classes and tasks.


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counsel did not advise him that many of his convictions would have merged

for sentencing purposes.           Appellant claims counsel's ineffectiveness was

material because it caused him to enter into the guilty plea unknowingly,

unintelligently, and involuntarily.            Appellant concludes that, because of

counsel's ineffectiveness, he        is   entitled to withdraw his plea and proceed to

trial. We disagree.

      Our standard of review regarding PCRA relief              is   well -settled.   "[W]e

examine whether the PCRA court's determination is supported by the record

and free of legal error."          Commonwealth v. Fears, 86 A.3d 795, 803
(Pa.2014) (internal quotation marks and citation omitted).                 "The scope of

review is limited to the findings of the PCRA court and the evidence of

record, viewed in the light most favorable to the prevailing party at the trial

level."    Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa.2014) (citation
omitted).    "It   is   well -settled that   a PCRA   court's credibility determinations

are binding upon an appellate court so long as they are supported by the

record."    Commonwealth v. Robinson, 82 A.3d 998, 1013 (Pa.2013)
(citation omitted).         However, this Court reviews the PCRA court's legal

conclusions de novo.            Commonwealth v. Rigg, 84 A.3d 1080, 1084
(Pa.Super.2014) (citation omitted).




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       This Court follows the Pierces test adopted by our Supreme Court to

review claims of ineffective assistance of counsel:

          When   a  petitioner alleges trial counsel's ineffectiveness in
          a PCRA petition, he must prove by a preponderance of the
          evidence that his conviction or sentence resulted from
          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. We have
          interpreted this provision in the PCRA to mean that the
          petitioner must show: (1) that his claim of counsel's
          ineffectiveness has merit; (2) that counsel had no
          reasonable strategic basis for his action or inaction; and
          (3) that the error of counsel prejudiced the petitioner -i.e.,
          that there is a reasonable probability that, but for the error
          of counsel, the outcome of the proceeding would have
          been different. We presume that counsel is effective, and it
          is the burden of Appellant to show otherwise.

Commonwealth v. duPont, 860 A.2d 525, 531 (Pa.Super.2004) (internal
citations and quotations omitted).          "If   an appellant fails to prove by a

preponderance of the evidence any of the Pierce prongs, the Court need not

address the remaining prongs of the test." Commonwealth v. Fitzgerald,

979 A.2d 908, 911 (Pa.2010) (citation omitted).

       "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) (citing Commonwealth v.
Allen, 732 A.2d 582 (Pa.1999)). Whether           a   plea was voluntary "depends on


5   Commonwealth v. Pierce, 527 A.2d 973 (Pa.1987).


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whether counsel's advice was within the range of competence demanded of

attorneys in criminal cases." Commonwealth v. Lynch, 820 A.2d 728, 733

(Pa.Super.2003), appeal denied, 835 A.2d 709 (Pa.2003) (internal citation

omitted).

       "Under certain circumstances,          a   defendant who enters    a   guilty plea

after the court communicates an incorrect maximum sentence may be

considered    to      have   entered   his   plea   unknowingly and      involuntarily."

Commonwealth v. Lincoln, 72 A.3d 606, 610 (Pa.Super.2013) (quoting
Commonwealth v. Lenhoff, 796 A.2d 338 (Pa.Super.2002)). "However,
every mistake in computing the possible maximum or advising the defendant

of the possible maximum will not amount to manifest injustice justifying the

withdrawal of     a   guilty plea; the mistake must be material to the defendant's

decision to plead guilty."    Id. (internal quotations    and citations omitted).

       Further:

          [The] determination of materiality must be fact- and case -
          specific. Certainly, if a defendant were to plead guilty to
          avoid a death sentence when there is no possibility of a
          death sentence, then this mistake would clearly be
          material.   On the other hand, suppose there were a
          robbery of five people together with conspiracy and
          weapons charges, and the defendant were told that he
          faced a maximum sentence of 70 to 140 years rather than
          65 to 130 years. If the plea negotiations resulted in a
          sentence of 5 to 10 years, then this mistake would not be
          material.
Id.   at 610-611 (quoting Commonwealth v. Barbosa, 819 A.2d 81, 83

(Pa.Super.2003)).



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         Here, on June 7, 2012, Appellant entered into      a   negotiated guilty plea,

which provided that he would plead guilty to three counts of PWID and one

count of criminal conspiracy. In exchange for his plea, the Commonwealth

would no/ pros all remaining counts against him, and Appellant would

receive   a    minimum aggregate sentence of nine (9) years' incarceration, with

RRRI     eligibility, which would result in six (6) years and nine (9) months of

incarceration.      The written plea provided that the maximum sentence for

each of his convictions was fifteen (15) years and that the aggregate

maximum sentence for his convictions was sixty (60) years' incarceration.

         At Appellant's oral plea colloquy, the trial court advised Appellant of

the same maximum punishment for Appellant's convictions. N.T., 6/7/2012,

at 4       The court further advised Appellant that pursuant to the plea

agreement, his minimum sentence would be nine (9) years' incarceration,

with the maximum in the court's discretion, up to sixty (60) years. Id. at 9.

The court stated Appellant's RRRI would be six (6) years and nine (9)

months. Id.         The court stated:   "I will note the entry of the plea. I will
defer consideration of the plea agreement until the time set for sentencing."

Id. at   13.

         At the sentencing hearing, the court conducted          a   sidebar discussion

with counsel to discuss         a   modification of the plea agreement.            The

prosecutor then stated that the maximum penalty on each of Appellant's

convictions was actually 10 years and         a   $100,000.00 fine based on the fact


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that the drug possessed was marijuana and that Appellant had               a   prior

record.        N.T., 8/21/2012, at 3.    The modification of the plea agreement

provided that Appellant's aggregate minimum sentence would be seven (7)

years' incarceration with the fines and maximums in the court's discretion.

Id. at    5.   After the sidebar discussion, the following exchange transpired:

               [THE COURT: Appellant,] you've been present while we've
               had all these discussions. Do you completely understand
               what's going on?

               [APPELLANT]: Yes, Your Honor.

               [THE COURT]: You've had ample opportunity to discuss it
               with [defense counsel]? Do you need any more time to
               discuss the situation with him?

               [APPELLANT]:   No, Your Honor.

               [THE COURT]: Are you in agreement with the modifications
               to the plea agreement as we've gone over?

               [APPELLANT]: Yes, I am, Your Honor.

               THE COURT:    Other than what we've discussed, [defense
               counsel], are there any additions or corrections to the
               presentence report of August 14th, 2012?

               [DEFENSE COUNSEL]:      No, Your Honor. I had met with
               [Appellant] yesterday, and we reviewed the presentence
               investigation together.

N.T., Sentencing, 8/21/2012, at       5 -6.


         At the PCRA hearing, Appellant testified that defense counsel originally

lead him to believe that he would receive a 20 -year minimum sentence, and

Appellant was left with no alternative but to take the plea. N.T., 4/9/2015,

at 34. He testified that the court advised him that he could not withdraw his

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plea because the Commonwealth                      had already picked a                jury and would
consequentially suffer substantial prejudice.                     Id.    at 36.   He   further testified

that he asked defense counsel to file post sentence motions and                                a   direct

appeal, but counsel failed to do so.           Id.      at 38.

      Defense counsel also testified at the PCRA hearing. Counsel admitted

that he had incorrectly calculated the maximum penalty on each of

Appellant's counts        Id.    at 12.   He       testified that Appellant expressed some

reservations about completing his form because he wanted to know if he

could get   a   better deal. Id. at 20. Additionally, he testified that Appellant

seemed more concerned about the minimum end of the sentence than the

maximum.        Id.   at 22. According to counsel, Appellant was concerned when

he found out he was not RRRI eligible, and                        they discussed withdrawing his

plea if he was going to receive the 9 -year minimum instead of the 6 -year, 9-

month minimum.           Id.    at 23 -24.     Counsel testified that Appellant did not

express confusion or concern about what happened at sentencing or request

counsel to withdraw his plea or to file any appeals or motions.                              Id.   at 24.

Appellant wrote defense counsel           a   letter        a   few months later asking him if he

had filed his appeal, and counsel thought this was a good trick, because

Appellant never asked him to file an appeal.                     Id.    at 27.

      The PCRA court reasoned:

         The   [c]ourt is not persuaded that [Appellant] ever
         requested trial counsel to file a post -sentenc[e] motion, a
         [m]otion to withdraw his plea or an appeal in this matter.


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         In reviewing the documents filed by [Appellant] and after
         hearing this matter, the [c]ourt is persuaded that
         [Appellant] was satisfied with his plea, made a knowing,
         intelligent and voluntary plea, understood his exposure
         had he gone to trial and totally understood his plea
         agreement. It appears to this [c]ourt that [Appellant] is
         attempting to manufacture information in an effort to get
         his sentence vacated in the hopes of obtaining a better
         "deal" than his original sentence given the length of time
         that has passed since the incident involved.

PCRA Court Pa.R.A.P.   1925(a) Opinion, filed March 2, 2016, at 2 -3.

      Although counsel initially misadvised Appellant about the maximum

penalties for his crimes, the error was corrected on the record prior to

imposition of sentence. Moreover, the PCRA court found that the erroneous

maximum sentence was not material to Appellant's decision to plead guilty.

It found that Appellant entered into the guilty    plea to obtain the best deal

possible, because even after Appellant received      a   correct statement of his

potential maximum, he agreed to       a   greater minimum than was part of his

previous bargain.

      Appellant's contention that counsel was ineffective for failing to advise

him that his convictions were duplicative or that they would have merged for

sentencing purposes    is   devoid of merit.   At CR- 224 -2011, Appellant was

charged with four (4) counts of criminal attempt to commit PWID for four (4)

separate packages of marijuana that were intercepted by the U.S. Postal

Inspection Service on January 7, 2011.         He was also charged with PWID,

delivery, and criminal conspiracy for "numerous parcels via U.S. Mail" at this

information.   At CR- 404 -2011, Appellant was charged with three (3) counts

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of PWID for separate instances that occurred before January of 2011.                   He

was also charged with criminal conspiracy and dealing in proceeds of

unlawful activity at this information.            Because Appellant was charged

separately for separate instances of illegal activity, his convictions would not

have      been   duplicative     or    merged     for   sentencing    purposes.       See

Commonwealth v. Jenkins, 96 A.3d 1055, 1060, (Pa.Super.2014), appeal
denied, 104 A.3d      3   (Pa.2014).

       The incorrect statement of Appellant's potential maximum sentence, in

the context of the facts here, does not amount to          a   manifest injustice. See

Lincoln, supra. Appellant was apprised of the correct maximum sentences
for his crimes before he was sentenced. He proceeded to enter into                a   plea

that provided for     a   greater punishment than the one he originally agreed to

when he thought the maximum penalty for his crimes was greater. He then

failed to file   a   motion to withdraw his plea, post- sentence motions, or             a


direct appeal.

       The PCRA court's findings are supported by the record, and its legal

conclusions drawn therefrom are not error.

       Order affirmed.

Judgment Entered.




J: sephD. Seletyn,
Prothonotary
Date: 11/8/2016

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