J-S61022-17



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

  COMMONWEALTH OF                             :    IN THE SUPERIOR COURT OF
  PENNSYLVANIA                                :         PENNSYLVANIA
                                              :
                                              :
                v.                            :
                                              :
                                              :
  ISIAH A. ALLEN                              :
                                              :    No. 218 EDA 2017
                      Appellant

              Appeal from the PCRA Order December 15, 2016
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                     No(s): CP-51-CR-0009990-2014,
            CP-51-CR-0011255-2014, CP-51-CR-0011256-2014,
            CP-51-CR-0011257-2014, CP-51-CR-0011263-2014,
                         CP-51-CR-0011264-2014


BEFORE:       LAZARUS, RANSOM, and PLATT,* JJ.

MEMORANDUM BY RANSOM, J.:                                FILED NOVEMBER 13, 2017

      Appellant, Isiah A. Allen, appeals from the order entered December 15,

2016, denying his petition for collateral relief filed under the Post Conviction

Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.

      Appellant was charged with various offenses arising from the theft of

cellular phones and tablets, which he removed from the displays of various

Verizon and AT&T stores between January 8, 2014, and February 6, 2014.

Notes of Testimony (N.T.), 5/11/2015, at 10-11. On May 11, 2015, Appellant

entered into a non-negotiated guilty plea in six consolidated cases to three

counts each of misdemeanor retail theft and misdemeanor conspiracy in the

first degree, two counts each of felony retail theft in the third degree and

felony conspiracy in the third degree, and one count of misdemeanor

____________________________________
* Retired Senior Judge assigned to the Superior Court.
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possession of an instrument of crime.1

        On August 13, 2015, Appellant was sentenced to one and one-half to

five years of incarceration on each of the charges to run concurrently with

each other, with credit for time served and without RRRI eligibility. Appellant

did not file a post-sentence motion or direct appeal from the judgment of

sentence.

        On December 11, 2015, Appellant pro se filed a PCRA petition. Counsel

was appointed and filed an amended petition on May 6, 2016, asserting

ineffective assistance of plea counsel. On November 15, 2016, the PCRA court

served Appellant with notice of intent to dismiss pursuant to Pa.R.Crim.P. 907.

Thereafter, the PCRA court denied Appellant’s petition without an evidentiary

hearing. See Order, 12/15/2016.

        Appellant timely filed a notice of appeal and court-ordered 1925(b)

statement, asserting two issues: (1) the court erred in denying relief on his

substantive claim and (2) the court erred in failing to holding an evidentiary

hearing. See Appellant’s 1925(b) Statement, 2/13/2017, at 1.          The PCRA

court issued a responsive opinion.

        On appeal, Appellant pursues only one issue:

        1. Did the [l]ower [c]ourt err in failing to hold an evidentiary
           hearing to determine substantial issues of material fact alleged
           in Appellant’s PCRA petition?

Appellant’s Br. at 9.

____________________________________________


1   18 Pa.C.S. §§ 3929(a)(1), 903, 907(a), respectively.

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      Appellant challenges an order denying his petition for collateral relief in

which he asserted ineffective assistance of plea counsel.        Generally, the

following standards apply.

      We review an order denying a petition under the PCRA to determine

whether the findings of the PCRA court are supported by the evidence of

record and free of legal error. Commonwealth v. Ragan, 923 A.2d 1169,

1170 (Pa. 2007). We afford the court’s findings deference unless there is no

support for them in the certified record. Commonwealth v. Brown, 48 A.3d

1275, 1277 (Pa. Super. 2012) (citing Commonwealth v. Anderson, 995

A.2d 1184, 1189 (Pa. Super. 2010)).

      We presume counsel is effective.      Commonwealth v. Washington,

927 A.2d 586, 594 (Pa. 2007). To overcome this presumption and establish

the ineffective assistance of counsel, a PCRA petitioner must prove, by a

preponderance of the evidence that: “(1) the underlying legal issue has

arguable merit; (2) counsel’s actions lacked an objective reasonable basis;

and (3) actual prejudice befell the petitioner from counsel’s act or omission.”

Commonwealth v. Johnson, 966 A.2d 523, 533 (Pa. 2009) (citations

omitted).   “A petitioner establishes prejudice when he demonstrates ‘that

there is a reasonable probability that, but for counsel’s unprofessional errors,

the result of the proceeding would have been different.’”          Id. (quoting

Strickland v. Washington, 466 U.S. 668, 694 (1984)).            A claim will be

denied if the petitioner fails to meet any one of these requirements.


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Commonwealth v. Springer, 961 A.2d 1262, 1267 (Pa. Super. 2008) (citing

Commonwealth         v.   Natividad,    938    A.2d   310,    322    (Pa.   2007));

Commonwealth v. Jones, 942 A.2d 903, 906 (Pa. Super. 2008).

      We review allegations of counsel’s ineffectiveness in connection with a

guilty plea as follows:

      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.
      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.

      Thus, to establish prejudice, the defendant must show that there
      is a reasonable probability that, but for counsel’s errors, he would
      not have pleaded guilty and would have insisted on going to trial.
      The reasonable probability test is not a stringent one; it merely
      refers to a probability sufficient to undermine confidence in the
      outcome.

Commonwealth v. Barndt, 74 A.3d 185, 192 (Pa. Super. 2013) (citations

and internal quotation marks omitted). In determining whether a plea was

entered knowingly and voluntarily, this Court considers the totality of the

circumstances surrounding the plea.        Commonwealth v. Flanagan, 854

A.2d 489, 513 (Pa. 2004).

      In the issue he pursues on appeal, Appellant asserts that an evidentiary

hearing is required to determine whether counsel was ineffective. Appellant's

Br. at 13. Appellant avers that he alleged facts in his PCRA petition which, if

true, established that counsel’s advice caused him to enter an unknowing plea.

See Appellant's Br. at 15 (suggesting he could have withdrawn his plea).

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Specifically, according to Appellant, he relied on representations by plea

counsel regarding the credit he would receive for time served, and such

representations turned out to be incorrect.        See Appellant's Br. at 13.

Appellant suggests that these allegations raise factual issues regarding

counsel’s effectiveness. Id. at 13. Thus, Appellant requests that this Court

remand for an evidentiary hearing. Id. at 19.

      Notably, Appellant concedes that there is no evidence in the record to

establish plea counsel’s ineffectiveness.    See Appellant's Br. at 13.     Thus,

Appellant has abandoned the substantive claim that he preserved in his

1925(b) statement.     Id. at 19. See Pa.R.A.P. 2116 (“No question will be

considered unless it is stated in the statement of questions involved or is fairly

suggested thereby.”). Accordingly, we limit our analysis to Appellant’s request

for remand for a hearing and apply the following standard.

      The right to an evidentiary hearing on a post-conviction petition
      is not absolute. A PCRA court may decline to hold a hearing if the
      petitioner's claim is patently frivolous and is without a trace of
      support in either the record or from other evidence. A reviewing
      court on appeal must examine each of the issues raised in the
      PCRA petition in light of the record in order to determine whether
      the PCRA court erred in concluding that there were no genuine
      issues of material fact and denying relief without an evidentiary
      hearing. The controlling factor in determining whether a petition
      may be dismissed without a hearing is the status of the
      substantive assertions in the petition.

Commonwealth v. Payne, 794 A.2d 902, 906 (Pa. Super. 2002) (internal

citations omitted).   Where factual proffer, even if believed, fails to establish

substantive claim, no evidentiary hearing is required.      Commonwealth v.



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Ligons, 971 A.2d 1125, 1146 (Pa. 2009).

      Appellant’s allegations are not supported by the record established at

his plea and sentencing hearings.     “A person who elects to plead guilty is

bound by the statements he makes in open court while under oath and he

may not later assert grounds for withdrawing the plea which contradict the

statements he made at his plea colloquy.” Commonwealth v. Pollard, 832

A.2d 517, 523 (Pa. Super. 2003); see also Commonwealth v. Muhammad,

794 A.2d 378, 384 (Pa. Super. 2002) (“one is bound by one’s statements

made during a plea colloquy, and may not successfully assert claims that

contradict such statements”).

      The PCRA court found that the record of oral and written guilty plea

colloquies demonstrate that Appellant entered his plea voluntarily, knowingly,

and intelligently.   See PCRA Ct. Op., 4/5/2017, at 3.      At the guilty plea

hearing, Appellant denied that any promises had been made to him.          See

Notes of Testimony (N.T.), 5/11/2015, at 9. Appellant was informed of the

potential range of sentences that could be imposed on each count. See id. at

12-14.   On each of his written plea colloquies Appellant certified that no

promises were made to him. See PCRA Ct. Op., at 3. Further, “the question

of his time credit was specifically discussed at sentencing by [Appellant’s]

counsel.” Id. at 4. Plea counsel specifically said: “I don’t think he has any

time credit.” Id. (quoting N.T., 8/13/2015, at 11). Plea counsel informed the

court on the record that any credit for time served for Appellant’s Philadelphia

convictions would be limited because he was also serving time in connection

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with convictions in Montgomery and in Delaware County, as described in

Appellant’s Pre-Sentence Investigation Report (PSI). N.T., 8/13/2015, at 11.

Appellant’s sentence specified that credit for time served would be determined

by the Department of Corrections (DOC). Id. at 19; see also Sentencing

Order, 8/13/2015. “At no point did Appellant question those statements or

assert that he had been made specific time credit promises.” PCRA Ct. Op.,

at 4.

        Appellant is bound by his statements and they cannot be contradicted.

See Pollard, supra. Based on the evidence from the guilty plea, PSI, and

plea counsel’s statements at sentencing, there exist no genuine substantive

issues of material fact raised by Appellant’s petition.        See Pa.R.Crim.P.

907(2); see Ligons, supra.            Accordingly, the PCRA court did not err in

dismissing Appellant’s petition without an evidentiary hearing. See Payne,

794 A.2d at 906-907 (affirming PCRA court order dismissal of petition without

a hearing where record revealed no genuine issues of material fact).2

        Order affirmed. Jurisdiction relinquished.

        Judge Lazarus joins the memorandum.

        Judge Platt concurs in the result.
____________________________________________


2  Should Appellant dispute the DOC’s calculation, then he would still have
redress in a proceeding in an original action in the Commonwealth Court
challenging DOC’s computation. “A challenge to DOC's computation or
construction of a sentence is not a cognizable claim under the PCRA. Rather,
if the alleged error is the result of DOC's erroneous computation, then the
appropriate mechanism for redress is an original action in [the
Commonwealth] Court challenging DOC's computation.”                Allen v.
Commonwealth, 103 A.3d 365, 373 (Pa. Cmwlth. 2014).

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/13/2017




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