J-S12015-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    MIGUEL ALEJANDRO BADELL                    :
                                               :
                       Appellant               :   No. 1984 EDA 2019

               Appeal from the PCRA Order Entered June 12, 2019
       In the Court of Common Pleas of Lehigh County Criminal Division at
                        No(s): CP-39-CR-0003115-2015


BEFORE:      SHOGAN, J., McCAFFERY, J., and COLINS, J.*

MEMORANDUM BY SHOGAN, J.:                                  FILED MAY 19, 2020

        Appellant, Miguel Alejandro Badell, appeals from the order denying his

petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.

§§ 9541-9546. We affirm.

        The PCRA court summarized the procedural history of this case as

follows:

               On or about August 15, 2016, [Appellant] entered [an open]
        guilty plea to aggravated assault.1 A pre-sentence investigation
        (PSI) [report] was prepared for sentencing and on October 6,
        2016, [Appellant] received the maximum sentence of 10 to 20
        years imprisonment. [Appellant] pursued a direct appeal and the
        Superior Court affirmed the sentence on December 12, 2017.[1]
        [Appellant] sought Post-Conviction Relief, hereafter PCRA, with a
        supporting memorandum on October 16, 2018. A PCRA hearing
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1Commonwealth v. Badell, 179 A.3d 620, 3522 EDA 2016 (Pa. Super. filed
October 31, 2017).
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      was held on January 25 and January 31, 2019.                    The
      Commonwealth responded with a brief on April 3, 2019.
      [Appellant] submitted [his] final brief on or about April 25, 2019.

              1   18 Pa.C.S.A. [§] 2702(a)(1).

PCRA Court Opinion, 6/12/19, at 1. The PCRA court denied the petition on

June 12, 2019, and Appellant filed a timely appeal on July 10, 2019. The

PCRA court did not direct the filing of a Pa.R.A.P. 1925(b) statement.

      Appellant presents the following issues for our review:

      1.   Whether Appellant is entitled to a new sentencing hearing
      where trial counsel failed to motion the [c]ourt for recusal.

      2.    Whether Appellant is entitled to re-instatement of his
      appellate rights nunc pro tunc where trial counsel’s post-sentence
      motions were insufficient to preserve his challenge to the
      discretionary aspects of sentencing.

      3.     Whether Appellant is entitled to an arrest of judgment where
      trial counsel’s erroneous advice induced his plea.

Appellant’s Brief at 4.

      When reviewing the propriety of an order denying PCRA relief, we

consider the record “in the light most favorable to the prevailing party at the

PCRA level.”       Commonwealth v. Stultz, 114 A.3d 865, 872 (Pa. Super.

2015) (quoting Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super. 2014)

(en banc)).       This Court is limited to determining whether the evidence of

record supports the conclusions of the PCRA court and whether the ruling is

free of legal error. Commonwealth v. Rykard, 55 A.3d 1177, 1183 (Pa.

Super. 2012). A PCRA court’s credibility findings are to be accorded great

deference.        Commonwealth v. Dennis, 17 A.3d 297, 305 (Pa. 2011)


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(citation omitted). “Where the record supports the PCRA court’s credibility

determinations, such determinations are binding on a reviewing court.” Id.

(citation omitted).

      In order to plead and prove ineffective assistance of counsel, a petitioner

must establish: (1) that the underlying issue has arguable merit; (2) counsel’s

actions lacked an objective reasonable basis; and (3) actual prejudice resulted

from counsel’s act or failure to act. Commonwealth v. Stewart, 84 A.3d

701, 706 (Pa. Super. 2013) (en banc).        A claim of ineffectiveness will be

denied if the petitioner’s evidence fails to meet any one of these prongs.

Commonwealth v. Martin, 5 A.3d 177, 183 (Pa. 2010).                   Counsel is

presumed to have rendered effective assistance of counsel. Commonwealth

v. Montalvo, 114 A.3d 401, 410 (Pa. 2015). We have explained that trial

counsel cannot be deemed ineffective for failing to pursue a meritless claim.

Commonwealth v. Loner, 836 A.2d 125, 132 (Pa. Super. 2003) (en banc).

“We need not analyze the prongs of an ineffectiveness claim in any particular

order. Rather, we may discuss first any prong that an appellant cannot satisfy

under the prevailing law and the applicable facts and circumstances of the

case.” Commonwealth v. Johnson, 139 A.3d 1257, 1272 (Pa. 2016) (citing

Commonwealth v. Albrecht, 720 A.2d 693, 701 (Pa. 1998)).

      In his first issue, Appellant argues that he is entitled to a new sentencing

hearing because trial counsel was ineffective for failing to motion for recusal

of the sentencing judge. Appellant’s Brief at 7. Appellant maintains that the


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sentencing judge’s conduct on the record during the sentencing proceeding

created an appearance of impropriety that required recusal.              Id.   More

specifically, Appellant asserts, “The sentencing court made several remarks

during the guilty plea and at sentencing that showed a bias against and ill-will

toward Appellant and all other defendants charged with domestic violence

related crimes.” Id. at 8. In support of his claim, Appellant identified four

specific statements with which he took issue. Id. at 9-10. Appellant focuses

on the following statements made by the sentencing court:

            “I’ve been on the bench now for 13 years. I’ve been
            sitting with this domestic violence caseload for a good
            three or four. It disgusts me. I hate it.” N.T.
            10/16/16 page 64, lines 9-11.

            Second, the sentencing court expressed its pre-disposition
      to favor the prosecution and further express its dislike for cases
      involving and defendants charged with crimes of domestic
      violence:

            “I guess it’s only fair to tell you that I did Ms. Tharp’s
            job before she did it. It was an ugly job. I hated it. I
            hated it. Id. page 64 lines 1-4.”

             Third, the sentencing court expressed a pre-disposition for
      sympathy for victims of domestic violence and a tendency to find
      their testimony credible when it said:

            “I wish, quite frankly, that I was the person that you
            believe I might be who is sort of numb to this because
            of hearing it. I don’t think you ever become numb to
            something like this because it’s so horrifying.

                  It’s offensive. It doesn’t make any sense. It is
            the story of domestic violence in that you wonder how
            you can treat somebody that you say you love like
            that.


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                  I think that your words are ingrained in my head
            not only for you, but I’m sure you know the number
            of victims who come here who can’t even begin to
            speak.” Id. page 44, lines 4-24.

            Finally, the sentencing court expressed personal animosity
      towards the Appellant by bestowing all the negative connotations
      of domestic violence and society’s ills upon him without giving
      consideration to his unique personal and social history. The
      sentencing court opined:

            “And, sadly, there are many more out there like you.
            So you are not an anomaly to me. You are not some
            rare species that I’m first laying eyes on. Could that
            be? Could somebody be that evil? We know for a fact
            that the most successful domestic violence offenders
            are the most charming. They’ve got the most going
            on.

                  That’s why everyone ignores what maybe
            should have been a bit more obvious, because he is
            such a great guy and you know what, she is a great
            woman, and, obviously, there must be something
            there because she is no fool, she is not going to be
            with somebody who is something other than great.

                   Those are the successful domestic violence
            offenders. They have got everyone fooled. But you
            don’t have me fooled. And you don’t have Ms. Brown
            fooled. And you don’t have Ms. Tharp fooled. Id. page
            63, lines 9-25.

Appellant’s Brief at 9-10.

      We have stated the following with regard to the recusal of a judge:

             At the outset, we recognize that “our judges are honorable,
      fair and competent.” Commonwealth v. King, 576 Pa. 318, 839
      A.2d 237, 239 (2003). “It is the burden of the party requesting
      recusal to produce evidence establishing bias, prejudice or
      unfairness which raises a substantial doubt as to the jurist’s ability
      to preside impartially.” Commonwealth v. Abu-Jamal, 553 Pa.
      485, 720 A.2d 79, 89 (1998).


                                      -5-
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Commonwealth v. McCullough, 201 A.3d 221, 244 (Pa. Super. 2018).

     We first address the third statement identified by Appellant above, made

by the sentencing court with regard to sympathy for victims. The sentencing

court made this statement directly to the victim in response to the victim’s

lengthy statement, consisting of thirty-six pages in the transcript, detailing

the significant abuse she suffered at Appellant’s hands. N.T., 10/16/16, at 7-

43. Following the victim’s statement, this exchange occurred:

     THE COURT: I don’t really know what to say to you. What you
     described in your statement is nothing short of a living nightmare
     and I cannot imagine surviving it. I don’t know how one survives
     that. And it takes a remarkably strong person to continue to move
     forward. And my hat is off to you because you are that incredibly
     strong person.

     THE WITNESS: Thank you.

     THE COURT: I wish, quite frankly, that I was the person that you
     believe I might be who is sort of numb to this because of hearing
     it. I don’t think you ever become numb to something like this
     because it’s so horrifying.

           It’s offensive. It doesn’t make any sense. It is the story of
     domestic violence in that you wonder how you can treat somebody
     that you say you love like that.

           I think that your words are ingrained in my head not only
     for you, but I’m sure you know the number of victims who come
     here who can’t even begin to speak.

     THE WITNESS: I couldn’t have a year ago.

     THE COURT: They don’t know what to say. They don’t think
     anyone will believe them. They are afraid to speak. It’s too
     painful. And so I’m going to keep those things in mind for the
     women who really just have to stand there and when Ms. Tharp
     says is there anything you’d like to say they are not even able to


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      move their lips. So I appreciate the effort that you have put into
      your statement.

      THE WITNESS: Thank you.

N.T., 10/16/16, at 44-45.

      Thus, as reflected by the record, this statement by the trial judge

acknowledged the Victim’s testimony and showed the court’s appreciation for

the victim’s willingness to put forth publicly the abuse the victim suffered. It

“shows only that the judge had a grasp of human nature, not that [she] was

biased” against Appellant. See Commonwealth v. Flor, 998 A.2d 606, 642

(Pa. Super. 2010) (regarding a victim impact statement, the Supreme Court

held that the judge’s statement that he would have understood a call for

vengeance by the murdered officer’s brother does not suggest or imply that

the court was in any sense motivated by vengeance or bias.).         Thus, this

statement does not establish that the trial judge was biased or had ill-will

toward Appellant. Accordingly, we cannot agree that this statement serves as

a basis for requesting the sentencing court judge’s recusal. Thus, there is no

merit to the underlying claim.

      With regard to the remaining three statements identified by Appellant

as allegedly showing bias, we observe that these statements were made by

the trial court in the context of imposing Appellant’s sentence. While lengthy,

the following statement made by the trial judge to Appellant regarding his

sentence puts these statements in context. The trial court stated, in relevant

part, as follows:

                                     -7-
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     [Appellant], let me just address you for a moment. You are right.
     We are not here to try the case. We are not here to contest what
     has gone before. But let me make it perfectly clear to you that I
     believe every word that [the Victim] has shared with us today.

           I don’t believe she has any other motive at this point other
     than to get that ugly story off her chest once and for all and . . .
     expose the whole situation for the whole world to see.

           Because the only thing really that she missed in her
     recitation to me was what I learned from another victim which
     was, notwithstanding her appearance today, her demeanor, her
     composure, being a victim of domestic violence is nothing short of
     humiliating.

           It’s humiliating to have to go to the police. It’s humiliating
     to be here in court. It’s humiliating to be exposed to your friends
     and your family and your children that you are not the person that
     they thought they knew or that the relationship isn’t the one that
     everybody is envious of. It is humiliating.

           And she could have just as easily told me how upsetting this
     was and how upsetting to her children and what a nightmare it
     was and sat down. She exposed this to expose you. And I believe
     every word of it.

           I find your behavior to be disgusting. No person has the
     right to control a person to the extent that you attempted to
     control her. No one should ever have their hands on someone in
     anger. And, certainly, not somebody that they profess to love.

            You created an environment in the home of distrust. The
     girls couldn’t believe anything their mother said. And that’s a
     horrible, horrible situation. Because even though, if [daughter] is
     any indication of her sister, they are smart, they are sophisticated,
     when all is said and done, everyone needs their mother.

           Everyone needs to be able to rely on their mother, to depend
     on their mother for their mother’s help and guidance and good
     judgment. And they couldn’t rely on that with her because they
     had this sense that she was lying to them. And they couldn’t even
     figure out why.




                                     -8-
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           And kids take everything personally. What have we done
     that [our] mother can’t be truthful with us? Why does she think
     we are so stupid? So you stole that from them. You stole their
     trust or admiration for their mother. You made that woman’s life
     an absolute living Hell on earth.

          And, sadly, there are many more out there like you.
     So you are not an anomaly to me. You are not some rare
     species that I’m first laying eyes on. Could that be? Could
     somebody be that evil? We know for a fact that the most
     successful domestic violence offenders are the most
     charming. They’ve got the most going on.

          That’s why everybody ignores what maybe should
     have been a bit more obvious, because he is such a great
     guy and you know what, she is a great woman, and,
     obviously, there must be something there because she is
     no fool, she is not going to be with somebody who is
     something other than great.

          Those are the successful domestic violence offenders.
     They have got everyone fooled. But you don’t have me
     fooled. And you don’t have Ms. Brown fooled. And you
     don’t have Ms. Tharp fooled.

           You are a dangerous, dangerous individual. I guess it’s
     only fair to tell you that I did Ms. Tharp’s job before she did
     it. It was an ugly job. I hated it. I hated it.

          And I have to confess that there were as many times as not
     where I allowed myself to think, oh, she probably deserved it,
     what a shrew, who could put up with that.

           I’ve been on the bench now for 13 years. I’ve been
     sitting with this domestic violence caseload for a good
     three or four. It disgusts me. I hate it. In the time that I’ve
     been on the bench, I think that I’ve come to the conclusion that
     -- and I’ve said it in court and I have said it out in the community
     – we warehouse people, too many people, for too many years for
     no good end and that has to stop.

           There are, what, 55 million people incarcerated. But there’s
     a category of person who deserves to be warehoused. And that’s


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     a person who willfully and repeatedly hurts another person, hurts
     them physically, hurts them emotionally, hurts them spiritually.

           And they deserve to be warehoused because they don’t care
     and they don’t learn and they are not dissuaded by anything that’s
     gone before. This is, what, the fifth act of domestic violence for
     which you are being prosecuted, the fourth?

     [Appellant]: Third, Your Honor.

     THE COURT: You don’t get it. You don’t get it. And I think there’s
     a certain arrogance. You know, you think you are smarter than
     everyone else, that you are going to get away with it, that nobody
     is going to believe that. Who is going to believe that? Who would
     believe that?

           I believe it because I have seen it. And I can’t tolerate it
     and I can’t stand it and it makes me sick. You are a person who
     needs to be put away for as long as possible.

           I’m sorry for your family. I’m sorry for your children. Yours
     is a wasted, wasted, wasted, life.

           And so without further ado, because this has gone on too
     long, in 3115 of 2015 , the sentence is that you pay the costs of
     prosecution. Is there a request for restitution, Ms. Tharp?

     MS. THARP: No, Your Honor.

     THE COURT:        That you undergo imprisonment in the state
     correctional institution for a period of not less than 10 nor more
     than 20 years, that you be credited for all time spent in custody
     as a result of these charges, stand committed until the sentence
     is complied with. You are not RRRI eligible.

             Conditions of supervision are that you abide by any and all
     conditions imposed by the state parole board, including any
     special conditions related to crimes of domestic violence, and that
     you are to have no contact either direct or indirect with the victim,
     . . . , or any members of her immediate family.

           This sentence departs from the guidelines. It is in excess of
     the aggravated range. It is, in fact, the maximum possible penalty


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       that I can impose in this matter. And I do so because you are a
       repeat violent domestic violence offender.

             You have violated previous court orders that have been
       intended to control your behavior. You have caused what may be
       irreparable harm to the victim and to her family. And this has
       been a course of conduct that has, in my mind, been intended to
       terrorize and to tear down another human being. . . .

N.T., 10/6/16, at 61-66 (emphases added to reflect Appellant’s challenged

statements).

       As reflected, these comments were made while addressing Appellant

and explaining the reasons for his sentence.       The trial court made these

statements in the context of considering Appellant’s background, history,

rehabilitative needs, and the need to protect the public, as it is required to

do.2

       Moreover, we have explained:

              Opinions formed by the judge on the basis of facts
       introduced or events occurring in the course of the current
       proceedings, or of prior proceedings, do not constitute a basis for
       a bias or partiality motion unless they display a deep-seated
       favoritism or antagonism that would make fair judgment
       impossible. Thus, judicial remarks during the course of a
       trial that are critical or disapproving of, or even hostile to,
       counsel, the parties, or their cases, ordinarily do not
       support a bias or partiality challenge. They may do so if they
____________________________________________


2  A sentencing court must formulate a sentence individualized to that
particular case and that particular defendant. Commonwealth v. Boyer,
856 A.2d 149, 153 (Pa. Super. 2004). Section 9721(b) provides: “The court
shall follow the general principle that the sentence imposed should call for
confinement that is consistent with the protection of the public, the gravity of
the offense, as it relates to the impact on the life of the victim and on the
community, and the rehabilitative needs of the defendant ...” Boyer, 856
A.2d at 153 (citing 42 Pa.C.S. § 9721(b)).

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      reveal an opinion that derives from an extrajudicial source; and
      they will do so if they reveal such a high degree of favoritism or
      antagonism as to make fair judgment impossible.... Not
      establishing bias or partiality, however, are expressions of
      impatience, dissatisfaction, annoyance, and even anger,
      that are within the bounds of what imperfect men and women,
      even after having been confirmed as judges, sometimes display.
      A judge’s ordinary efforts at courtroom administration—
      even a stern and short-tempered judge’s ordinary efforts
      at courtroom administration—remain immune.

Commonwealth v. Kearney, 92 A.3d 51, 61 (Pa. Super. 2014) (emphases

in original) (citing Commonwealth v. Druce, 848 A.2d 104, 110 n.3 (Pa.

2004)) (The Court explained that “[u]nder the extra-judicial source doctrine,

alleged bias stemming from facts gleaned from the judicial proceeding will

rarely be grounds for recusal.”) (quoting Liteky v. United States, 114 S.Ct.

1147 (1994)).    Furthermore, our Supreme Court has stated:          “[I]t is not

improper for a judge to address a defendant after sentencing for the purpose

of reiterating to the defendant that the punishment just imposed was well-

deserved.” Flor, 998 A.2d at 642.

      Accordingly, we cannot agree that the trial court’s statements were

grounds for recusal. Because these underlying claims lack merit, Appellant

cannot succeed on his claim of ineffective assistance of trial counsel for failure

to seek recusal of the trial court judge. Stewart, 84 A.3d at 706.

      Moreover, we note that a panel of this Court on direct appeal addressed

Appellant’s assertion that he was entitled to a new sentencing hearing because

the trial court imposed a maximum sentence in excess of the aggravated

range sentence. Commonwealth v. Badell, 179 A.3d 620, 3522 EDA 2016

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(Pa. Super. filed October 31, 2017). This Court determined that Appellant’s

issue was meritless and reasoned:

            Here, our review of the sentencing transcript reveals the
     trial court considered the guideline ranges for [Appellant’s] crime,
     but concluded the facts and circumstances underlying his
     conviction called for a sentence above the aggravated range of
     the guidelines. After imposing the 10 to 20-year sentence, the
     trial court explained:

                 This sentence departs from the guidelines. It is
           in excess of the aggravated range. It is, in fact, the
           maximum possible penalty that I can impose in this
           matter. And I do so because you are a repeat violent
           domestic violence offender.

                 You have violated previous court orders that
           have been intended to control your behavior. You
           have caused what may be irreparable harm to the
           victim and to her family.

                And this has been a course of conduct that has,
           in my mind, been intended to terrorize and to tear
           down another human being.

     In its opinion, the court further elaborated that the “guilty plea
     narrative and the testimony taken at the sentencing hearing
     demonstrated the victim was psychologically, physically, and
     sexually abused by [Appellant] during the course of their
     relationship.” Indeed, [Appellant’s victim] delivered a powerful
     victim impact statement that spanned 36 pages in the transcript,
     and detailed her four-year relationship with [Appellant], during
     which time he repeatedly physically and psychologically abused
     her. Further, the trial court emphasized that [Appellant] had been
     convicted of domestic violence–related crimes on two prior
     occasions in California, and “served significant periods of
     incarceration for those crimes.”

           We find the trial court’s comments both at the sentencing
     hearing and in its opinion . . . demonstrate that the court
     considered the factors listed in Sections 9721(b) and 9781(b)
     before imposing a sentence above the aggravated range of the
     guidelines. Indeed, the court’s focus on [Appellant’s] history of

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      domestic abuse and his failure to conform his behavior after two
      prior convictions, establishes its consideration of the protection of
      the public and [Appellant’s] rehabilitative needs. See 42 Pa.C.S.
      § 9721(b); 9781(d)(1). Likewise, the court’s emphasis on the
      psychological and physical harm [Appellant] inflicted on the victim
      over a sustained period of time evidences its consideration of the
      gravity of the offense as it relates to the impact on the life of the
      victim. See id. Furthermore, we emphasize that prior to the
      hearing, the trial court reviewed a presentence investigation
      report, which [Appellant’s] counsel believed was “done very fairly
      for [Appellant],” as well as “a packet of letters” supporting
      [Appellant], and a “lengthy letter with some attachments” that
      [Appellant] submitted himself. Moreover, [Appellant] spoke at the
      sentencing hearing, and the court was able to hear his apology to
      the victim and her family.         Accordingly, [Appellant’s] . . .
      sentencing claim warrants no relief.

Badell, 179 A.3d 620, 3522 EDA 2016, at *7-8 (some internal citations and

footnote omitted).

      Thus, this Court previously determined that Appellant’s sentence was

not improper and that the trial court properly considered relevant factors in

sentencing Appellant. This Court stated that the trial court’s statements at

sentencing reflected the reasons for imposition of the sentence above the

aggravated range of the guidelines, including Appellant’s history of domestic

abuse and the harm he caused. Accordingly, Appellant’s argument that the

trial court was biased and such bias resulted in an excessive sentence is

meritless. Because counsel cannot be deemed ineffective for failing to raise a

meritless issue, Appellant’s claim of trial counsel’s ineffectiveness on this basis

fails. See Commonwealth v. Spotz, 47 A.3d 63, 122 (Pa. 2012) (Where an

underlying claim is meritless, “the derivative claim of ineffective assistance of

counsel for failing to object has no arguable merit.”).

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         In his next issue, Appellant argues that he is entitled to re-instatement

of his appellate rights nunc pro tunc because trial counsel’s post-sentence

motions were insufficient to preserve a challenge to the discretionary aspects

of sentencing. Appellant’s Brief at 24. Specifically, Appellant argues that trial

counsel filed deficient post-sentence motions causing Appellant’s challenge to

the discretionary aspects of sentencing to be waived on direct appeal. Id.

Appellant asserts that as a consequence, counsel was ineffective and Appellant

suffered prejudice.      Id.   With regard to the alleged prejudice Appellant

suffered, he states:     “Appellant was prejudiced because his sentence was

greater than that called for by the sentencing guidelines and even the

aggravated sentence recommended by the pre-sentence investigation.” Id.

at 25.

         As stated above, Appellant’s challenge to his sentence on the basis that

it was too harsh and excessive was previously litigated by this Court on direct

appeal.     A panel of this Court determined that it was not overly harsh or

excessive, and that the reasons for the sentence imposed beyond the

aggravated range for sentencing were placed on the record by the sentencing

court. Badell, 179 A.3d 620, 3522 EDA 2016. Thus, Appellant’s assertion

that he was prejudiced because his sentence was greater than the aggravated

range is meritless.        Accordingly, because counsel cannot be deemed




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ineffective for failing to raise a meritless claim, Appellant’s assertion fails.3

Spotz, 47 A.3d at 122.

       In his final claim, Appellant argues that he is entitled to an arrest of

judgment where trial counsel’s erroneous advice induced his plea. Appellant’s

Brief at 26.    Appellant contends that he presented testimony at the PCRA

hearing, as did his wife, that Appellant was told by counsel that he would

receive a sentence of five to ten years imprisonment despite the on-the-

record-colloquy given by the trial court. Id. at 27. Appellant maintains that

“[t]his uncontroverted evidence proves erroneous advice from trial counsel.”

Id. Appellant further asserts that he opted to forego trial and enter an open

plea “based upon the erroneous advice of trial counsel.”         Id. at 27-28.

Appellant argues that he was prejudiced because but for trial counsel’s

erroneous advice, Appellant would not have pled guilty but instead, would

have proceeded to trial. Id. at 28.

       “A criminal defendant has the right to effective counsel during a plea

process as well as during trial.” Commonwealth v. Hickman, 799 A.2d 136,



____________________________________________


3 In the argument section of his brief on this issue, Appellant again attempts
to base his claim on counsel’s failure to seek the trial judge’s recusal on the
basis of bias. Specifically, Appellant asserts that “trial counsel’s deficient
performance waived Appellant’s challenge to his sentence based upon the
sentencing court’s bias.” Appellant’s Brief at 25. As outlined above, we
determined that there was no basis for seeking the trial judge’s recusal; thus,
any claim of ineffectiveness of counsel for failing to do so lacks merit. For the
same reason, we cannot agree that counsel was ineffective for failing to file a
post-sentence motion in order to challenge the trial court’s alleged bias.

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141 (Pa. Super. 2002).      “The law does not require that [an] appellant be

pleased with the outcome of his decision to enter a plea of guilty[.]”

Commonwealth v. Diaz, 913 A.2d 871, 873 (Pa. Super. 2006) (citation

omitted).    Instead, “the defendant must show that counsel’s deficient

stewardship resulted in a manifest injustice, for example, by facilitating entry

of an unknowing, involuntary, or unintelligent plea.”        Commonwealth v.

Morrison, 878 A.2d 102, 105 (Pa. Super. 2005). “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. Lynch, 820

A.2d 728, 733 (Pa. Super. 2003). Therefore, “[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 appellant to enter an involuntary or unknowing

plea.” Commonwealth v. Boyd, 835 A.2d 812, 815 (Pa. Super. 2003). If

the ineffective assistance of counsel caused the defendant to enter an

involuntary or unknowing plea, the PCRA will afford the defendant relief.

Hickman, 799 A.2d at 141.

      In order to ensure a voluntary, knowing, and intelligent plea, trial courts

are required to ask the following questions in the guilty plea colloquy:

      1) Does the defendant understand the nature of the charges to
      which he or she is pleading guilty or nolo contendere?

      2) Is there a factual basis for the plea?

      3) Does the defendant understand that he or she has the right to
      a trial by jury?



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      4) Does the defendant understand that he or she is presumed
      innocent until found guilty?

      5) Is the defendant aware of the permissible ranges of sentences
      and/or fines for the offenses charged?

      6) Is the defendant aware that the judge is not bound by the terms
      of any plea agreement tendered unless the judge accepts such
      agreement?

      7) Does the defendant understand that the Commonwealth has a
      right to have a jury decide the degree of guilt if defendant pleads
      guilty to murder generally?

Pa.R.Crim.P. 590; Commonwealth v. Pollard, 832 A.2d 517, 522–523 (Pa.

Super. 2003). “The guilty plea colloquy must affirmatively demonstrate that

the defendant understood what the plea connoted and its consequences.”

Commonwealth v. Lewis, 708 A.2d 497, 501 (Pa. Super. 1998). “Once a

defendant has entered a plea of guilty, it is presumed that he was aware of

what he was doing, and the burden of proving involuntariness is upon him.”

Commonwealth v. Stork, 737 A.2d 789, 790 (Pa. Super. 1999) (citation and

internal brackets omitted). “In determining whether a guilty plea was entered

knowingly and voluntarily, ... a court ‘is free to consider the totality of the

circumstances surrounding the plea.’” Commonwealth v. Flanagan, 854

A.2d 489, 513 (Pa. 2004) (citation and internal quotation marks omitted).

      Finally, when addressing an appellate challenge to the validity of a guilty

plea, we apply the following:

            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. A person who elects to plead guilty is bound by the
      statements he makes in open court while under oath and may not

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      later assert grounds for withdrawing the plea which contradict the
      statements he made at his plea colloquy.

                                        ***

            [A] defendant who elects to plead guilty has a duty to
      answer questions truthfully. We [cannot] permit a defendant to
      postpone the final disposition of his case by lying to the court and
      later alleging that his lies were induced by the prompting of
      counsel.

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

      Here, the record belies Appellant’s assertion that his plea was entered

involuntarily.   First, Appellant executed a written plea agreement which

advised him of all criteria outlined under Pa.R.Crim.P. 590 and indicated that

Appellant entered the plea knowingly and voluntarily. Appellant completed

the lengthy written guilty plea colloquy by answering each question and

initialing every page. Guilty Plea Statement, 8/15/16, at 1-10; N.T., 8/15/16,

at 18. Second, the trial court conducted a lengthy oral guilty plea colloquy

with Appellant that covered the requirements set forth in Pa.R.Crim.P. 590.

N.T., 8/15/16, at 1-30. The trial court advised Appellant that he was entering

an open plea to aggravated assault and as to the potential sentences. Id. at

8-13, 19. The trial court explicitly advised Appellant that it could sentence

Appellant to the maximum of ten to twenty years imprisonment:

             And then, again, I can sentence you to the maximum. I can
      sentence you to 10 to 20 years if I feel that’s what is appropriate
      for the case. And then I have to give some additional explanations
      on the record in order to survive review by a higher court.




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Id. at 13. Appellant stated that he was satisfied with counsel’s representation.

Id. at 21. Appellant also stated that no one made a promise to him regarding

the trial court’s sentence. Id. at 21-22. After the oral colloquy, the trial court,

satisfied that Appellant’s plea was being entered voluntarily, knowingly and

intelligently, accepted Appellant’s guilty plea. Id. at 28.

      Futhermore, the PCRA court summarized the testimony provided at the

PCRA hearing by Appellant, his wife, and trial counsel, as follows:

              Trial counsel, Attorney Steven Mills, testified that he has
      been an attorney practicing criminal law since 2006. Attorney
      Mills handles approximately hundreds of criminal cases per year.
      Attorney Mills represented [Appellant] from the start of the
      preliminary hearing, through plea proceedings, sentencing, and
      post-sentence motions. After [Appellant] received the statutory
      maximum sentence, Attorney Mills filed a post-sentence motion
      for reconsideration. Attorney Mills testified that his strategy in
      filing for reconsideration was an attempt to get [Appellant] a lower
      sentence.

             Attorney Mills explained that he had thoroughly discussed
      the evidence in the case, the text messages, the cell phone
      records, and the Commonwealth’s offer to one count of
      aggravated assault. When asked if he attempted to obtain a
      negotiated plea, Attorney Mills responded “It was hard to obtain
      any plea in this case, to be honest with you. The most we ever
      got was an open to the agg[ravated] assault charge.” Attorney
      Mills informed his client that he faced a very real potential of
      conviction on multiple charges, with a prior record score of five
      (5), and [Appellant] was aware he faced a potential sentence on
      each conviction.

            Mills testified that he spoke to [Appellant] about the plea
      offer on multiple occasions. He explained that the guidelines for
      a single count of aggravated assault, based on [Appellant’s]
      record, was 5 to 6 years. When the pre-sentence investigation
      report (PSI) was obtained, Attorney Mills reviewed it with
      [Appellant] and informed [Appellant] that the PSI recommended
      7 years. Attorney Mills further explained that the recommendation

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     was in the aggravated range, he believed that [Appellant]
     understood that, and that they expected the recommendation
     based on the facts of the case. Attorney Mills informed [Appellant]
     that he would ask the [c]ourt for a minimum sentence of 5 years
     (the bottom of the standard range).

            To the contrary, [Appellant] took the stand at the PCRA
     hearing and testified that, at the time of his guilty plea, Attorney
     Mills informed him he was going to get 5 to 10 years plus or minus
     12 months. Lisa German, [Appellant’s] girlfriend at the time of
     sentencing, testified that Attorney Mills informed her that
     “although he was not allowed to quote time frames, so don’t hold
     me to this, he was confident in the fact that [Appellant] would get
     3 to 6 years.” [Appellant] further alleged that he was misled as
     to the nature of his charges. [Appellant] testified that he believed
     he was pleading guilty to a charge of aggravated assault with the
     intent to cause serious bodily injury rather than aggravated
     assault with serious bodily injury.

           The Commonwealth reviewed the record with [Appellant] on
     cross-examination. The record revealed that the Court had
     informed [Appellant] of the nature of the offense to which he was
     pleading guilty, the definition and degree of the offense, and the
     maximum possible penalty. The Court conducted an oral colloquy
     and a written guilty plea colloquy was filed. Based on a review of
     the record, [Appellant] acknowledged that the [c]ourt did not
     promise that he was only getting 5 to 10 years. The [c]ourt had
     reviewed the guidelines of the offense with [Appellant] and
     properly informed [Appellant] he could receive the statutory
     maximum sentence of 10 to 20 years. In fact, [Appellant] was
     specifically warned that the maximum sentence was an explicit
     possibility if the [c]ourt determined such a sentence was
     warranted.

PCRA Court Opinion, 6/12/19, at 6-8 (footnotes omitted).

     Thus, the evidence of record supports the conclusion that counsel did

not advise Appellant that he would receive a certain sentence. Instead, the

evidence reflects that counsel advised Appellant as to the possible sentences

as the matter progressed, including the recommendation in the PSI report.


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Furthermore, prior to entering the open plea to one count of aggravated

assault, the trial court made Appellant aware of the potential sentences,

including the possibility of imposing the maximum statutory sentence.

      Accordingly, the evidence of record supports the conclusion that

Appellant’s plea was entered knowingly and voluntarily.        Appellant stated

under oath that he understood the potential sentences and that no one had

promised him a certain sentence. Appellant cannot now assert that he was

lying under oath in order to support his claim that his plea was involuntarily

entered.   Yeomans, 24 A.3d at 1047.          Appellant’s displeasure with his

sentence is not a basis upon which he can credibly claim that his plea was

involuntarily entered. See Diaz, 913 A.2d at 873 (“The law does not require

that appellant be pleased with the outcome of his decision to enter a plea of

guilty[.]”) (internal citation omitted).   The record reflects that Appellant

knowingly and voluntarily entered his plea, and Appellant has failed to

establish otherwise.    Thus, the underlying claim lacks arguable merit.

Accordingly, Appellant has failed to establish a claim of ineffective assistance

of counsel on this basis and Appellant is therefore entitled to no relief. Spotz,

47 A.3d at 127.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/19/2020




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