J-S46044-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 JOHNNY BAKER                            :
                                         :
                   Appellant             :   No. 3910 EDA 2017


             Appeal from the PCRA Order, November 27, 2017,
           in the Court of Common Pleas of Philadelphia County,
           Criminal Division at No(s): CP-51-CR-0008814-2015.


BEFORE: BOWES, J., SHOGAN, J., and KUNSELMAN, J.

MEMORANDUM BY KUNSELMAN, J.:                   FILED NOVEMBER 13, 2018

     Johnny Baker appeals from the order denying his first timely petition for

relief filed pursuant to the Post Conviction Relief Act. 42 Pa.C.S.A. §§ 9541-

46. We affirm.

     Baker’s convictions arise from drug crimes that he perpetrated on

August 14, 2015, in Philadelphia County, Pennsylvania.       The PCRA court

summarized the pertinent procedural history as follows:

           On April 21, 2016, [Baker] entered into a non-negotiated
        guilty plea for the charges of possession with intent to
        deliver a controlled substance (“PWID”), conspiracy to
        commit possession with intent to deliver a controlled
        substance, and the knowing and intentional possession of a
        controlled substance. On June 30, 2016, the Honorable Kai
        Scott (herein PCRA court) imposed a sentence of two to four
        years of incarceration followed by three years of probation
        on the possession with intent to deliver charge, and the
        same sentence for the conspiracy charge to run concurrent
        with the PWID sentence. [Baker] did not pursue a direct
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         appeal. On October 11, 2016, [Baker] timely filed his first
         PCRA petition wherein he claimed that his trial counsel was
         ineffective for failing to provide adequate legal advice
         regarding the consequences of a guilty plea. [Baker] alleges
         this error induced him to plead guilty to these charges.

            PCRA counsel filed an amended PCRA petition on
         February 27, 2017.         On September 13, 2017, the
         Commonwealth filed a letter brief and motion to dismiss the
         amended       PCRA    petition.     After    receiving    the
         Commonwealth’s motion to dismiss, PCRA counsel filed a
         response clarifying [Baker’s] claim of ineffective assistance
         on September 21, 2017. The clarification stated that
         [Baker] was not informed of the proper sentencing
         guidelines and mistakenly believed the sentence would be
         county sentence of eleven and a half to twenty three
         months. The first hearing on the PCRA matter and the
         related filings was held on November 27, 2017.

              This court, after carefully reviewing the record, [Baker’s]
         filings,    PCRA      counsel’s     amended      petition,  the
         Commonwealth’s letter in brief and motion to dismiss, and
         PCRA counsel’s response, determined the issues raised by
         PCRA counsel lacked merit and dismissed [Baker’s] PCRA
         petition without an evidentiary hearing. The PCRA court
         sent [Baker] a Pa.R.Crim.P. 907 notice of dismissal on
         October 25, 2017. On November 27, 2017 this court issued
         an order denying [Baker’s] post-conviction relief.

PCRA    Court   Opinion,   3/2/18,   at    1-2   (footnote   omitted)(unnecessary

capitalization omitted).

       This timely appeal follows.        Both Baker and the PCRA court have

complied with Pa.R.A.P. 1925.

       Baker raises the following issue on appeal:

         I.     Did the [PCRA] court err in denying [Baker] an
                evidentiary hearing when [Baker] raised a material
                issue of fact that trial defense counsel was ineffective
                in failing to properly inform [Baker] of the sentence
                guidelines prior to [Baker’s] guilty plea being entered?



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Baker’s Brief at 2.

        The Superior Court’s standard of review of the denial of a PCRA petition

is limited to examining whether the court’s rulings are supported by the

evidence of record and free of legal error. Commonwealth v. Volk, 138 A.3d

659, 661 (Pa. Super. 2016).

        Baker claims that plea counsel was ineffective for advising Baker to

enter a guilty plea. To obtain relief under the PCRA premised on a claim that

counsel was ineffective, a petitioner must establish, by a preponderance of

the evidence, that counsel's ineffectiveness so undermined the truth-

determining process that no reliable adjudication of guilt or innocence could

have taken place.     Commonwealth v. Johnson, 966 A.2d 523, 532 (Pa.

2009). “Generally, counsel’s performance is presumed to be constitutionally

adequate, and counsel will only be deemed ineffective upon a sufficient

showing by the petitioner.” Id. This requires the petitioner to demonstrate

that:    (1) the underlying claim is of arguable merit; (2) counsel had no

reasonable strategic basis for his or her action or inaction; and (3) petitioner

was prejudiced by counsel's act or omission.        Id. at 533.    A finding of

"prejudice" requires the petitioner to show "that there is a reasonable

probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different." Id.

        In regard to claims of ineffective assistance of counsel during the plea

process, this court has recently stated that:




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            Ineffective assistance of counsel claims arising from the
         plea bargaining-process are eligible for PCRA review.
         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 into 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.

             The standard for post-sentence withdrawal of guilty pleas
         dovetails with the arguable merit/prejudice requirements
         for relief based on a claim of ineffective assistance of plea
         counsel, . . . under which the defendant must show that
         counsel’s deficient stewardship resulted in a manifest
         injustice, for example, by facilitating the entry of an
         unknowing, involuntary, or unintelligent plea. This standard
         is equivalent to the “manifest injustice” standard applicable
         to all post-sentence motions to withdraw a guilty plea.

Commonwealth v. Kelley, 136 A.3d 1007, 1012-13 (Pa. Super. 2016)

(citations omitted).

      In support of his claim, Baker alleges that plea counsel misinformed him

as to the proper sentencing guidelines. Allegedly, prior to Baker entering his

guilty plea, trial counsel informed Baker that a county sentence, rather than

a state sentence, applied to his case. As such, Baker argues that his plea was

not knowing, intelligent, or voluntary because he believed that he was

subjecting himself to eleven and a half to twenty three months’ incarceration

instead of the longer state sentence of 24-48 months.

      Baker points out that during his sentencing hearing, counsel asked the

court for a county sentence. Baker reasons that “trial defense counsel [would

not] request a county sentence unless he told [Baker] that [the county


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sentence] is what the sentencing guidelines indicated. Baker’s Brief at 6. We

do not find this theory persuasive.

      The trial court recounted the plea colloquy and sentencing hearing, as

follows:

              In this case, [Baker] reviewed and signed a written guilty
           plea agreement that expressly stated that he was pleading
           guilty to PWID heroin (graded as an ungraded felony),
           conspiracy to commit possession of a controlled substance
           (graded as an ungraded felony), and the knowing and
           intentional possession of a controlled substance (graded as
           an ungraded felony) and acknowledged the maximum
           sentence and fine that the court could impose on him.

              During [Baker’s] guilty plea, [Baker] was specifically
           asked by PCRA court, “has any promise been made to you
           to make you give up your right to trial in this matter?”
           [Baker] was also asked, “has anybody forced or threatened
           you in any way to make you give up your right to trial?” to
           which [Baker] responded to both, “no.” PCRA court further
           questioned [Baker], “are you pleading guilty of your own
           free will?” to which [Baker] responded, “yes.” Although the
           sentencing guidelines were not discussed during [Baker’s]
           guilty plea, they were provided during [Baker’s] sentencing.

              During sentencing, the guideline range was specifically
           stated as 24-30 months, plus or minus 6 months. [Baker’s]
           counsel made no objection to these guidelines and, in fact,
           agrees with the sentencing guidelines of 24-30 months.
           After his agreement, he merely requests that the court
           sentence [Baker] to a county sentence of 11 and a half to
           23 months, with a consecutive period of probation time.
           However, [Baker’s] counsel did not claim that this length of
           time is the proper sentencing guideline. [Baker] noted that
           he understood his sentence of two to four years of
           incarceration and three years of probation at the time of
           sentencing.

Trial Court Opinion, 3/2/18, at 4-6.




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      Additionally, the court reasoned that prior to its decision to dismiss the

PCRA petition without a hearing, it carefully examined the record, including

“Baker’s filings, PCRA counsel’s amended petition, the Commonwealth’s letter

in brief and motion to dismiss, and PCRA counsel’s response.” Id. at 2. After

its examination of the record, the PCRA court found the issue Baker raised

lacked merit.

      The Commonwealth argues that “[e]ven assuming counsel misinformed

[Baker] about his guideline range sentence does not render his counsel’s

assistance ineffective because [Baker] was fully aware of the statutory

maximum.” Commonwealth’s Brief at 8.         In support of this assertion, the

Commonwealth cites Commonwealth v. Burkholder, 719 A.2d 346, (Pa.

Super. 1998), where this Court ruled the appellant’s ineffective assistance of

counsel claim warranted no relief.      In Burkholder, appellant’s counsel

mistakenly advised him of the statutory maximum, conveying to Burkholder

that the sentence was shorter than it was in actuality. Id. at 349. However,

appellant’s plea remained knowing and voluntarily entered because the trial

court advised him of the correct statutory maximum during the plea colloquy.

Id.

      Here, as in Burkholder, the trial court informed Baker of the maximum

sentences he could receive for the different charges against him. Even if Baker

could demonstrate at an evidentiary hearing that his plea counsel misinformed

him regarding the sentencing range, his claim is without merit because the

trial judge advised him of the permissible maximum sentence for each offense

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during the plea colloquy, thus making his plea both knowing and voluntary.

Additionally,   Baker   signed   the   written   guilty   plea   colloquy,   further

demonstrating that he understood his maximum possible sentence, and

indicated on the form and during the colloquy that there was no plea bargain

or agreement of any kind. See Commonwealth v. Pollard, 832 A.2d 517,

523 (Pa. Super. 2003)(reiterating that “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.”)

      Thus, even if Baker’s trial counsel provided ineffective stewardship, this

claim warrants no relief because Baker entered his guilty plea with full

knowledge of the maximum sentences the court could impose. We conclude

that any ineffectiveness of counsel did not result in manifest injustice here,

and the PCRA court did not err when it dismissed Baker’s PCRA petition without

granting an evidentiary hearing.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/13/18




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