J-S65008-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

JACOB RIVERA

                            Appellant                No. 2418 EDA 2013


                   Appeal from the PCRA Order July 23, 2013
                In the Court of Common Pleas of Lehigh County
              Criminal Division at No(s): CP-39-CR-0004916-2011
                                          CP-39-CR-0004917-2011


BEFORE: PANELLA, J., OLSON, J., and PLATT, J.*

MEMORANDUM BY PANELLA, J.                        FILED DECEMBER 18, 2014

        Appellant, Jacob Rivera, appeals pro se from the order entered July

23, 2013, by the Honorable Kelly L. Banach, Court of Common Pleas of

Lehigh County, which denied Rivera’s petition filed pursuant to the Post

Conviction Relief Act (“PCRA”).1 No relief is due.

        We take the facts and procedural history of this case from the PCRA

court’s opinion.     Rivera entered a negotiated guilty plea to one count of

Fleeing or Attempting to Elude a Police Officer at case number 4916 of 2011,

and one count of Burglary at case number 4917 of 2011.            Rivera was

sentenced on August 2, 2012. Rivera filed a post-sentence motion in which

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    42 PA.CONS.STAT.ANN. §§ 9541-9546.
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he argued, inter alia, that the trial court erred in basing his prior record

score on a thirty-year-old juvenile adjudication for burglary. The trial court

denied Rivera’s motion. Rivera did not file a direct appeal.

      Rivera filed a timely pro se PCRA petition and the PCRA court

appointed counsel. Thereafter, appointed counsel filed a Motion to Withdraw

and a “no merit” letter, which the trial court granted following a hearing.

Following several continuances, Rivera filed a second PCRA petition, which

the PCRA court treated as an amended PCRA petition.        On July 23, 2013,

following a hearing, the PCRA court denied Rivera’s petition. This timely pro

se appeal followed.

      On appeal, Rivera raises the following issues for our review:

      I.     Whether Appellant’s plea of [g]uilty was knowingly,
             voluntarily and intelligently entered due to erroneous
             advice and ineffective assistance of counsel.

      II.    Whether Appellant’s [s]entence is illegal and/or excessive
             due to improper application of [j]uvenile [r]ecord and his
             [p]rior [r]ecord [s]core.

      III.   Whether the [c]ourt’s denial of Appellant’s Petition for
             Post-Conviction Relief is supported by the record and free
             from legal error.

Appellant’s Brief at 2.

      “Our standard of review of a trial court order granting or denying relief

under the PCRA calls upon us to determine whether the determination of the

PCRA court is supported by the evidence of record and is free of legal error.”

Commonwealth v. Barndt, 74 A.3d 185, 191-192 (Pa. Super. 2013)

(citation and internal quotation marks omitted). “The PCRA court's findings


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will not be disturbed unless there is no support for the findings in the

certified record.”      Id. (citation omitted).         The PCRA court's credibility

determinations are binding on this Court, where there is record support for

those determinations. Commonwealth v. Timchak, 69 A.3d 765, 769 (Pa.

Super. 2013).

       To establish ineffectiveness of counsel, “a PCRA petitioner must show

the underlying claim has arguable merit, counsel's actions lacked any

reasonable    basis,    and     counsel's     actions   prejudiced   the    petitioner.”

Commonwealth v. Jones, 71 A.3d 1061, 1063 (Pa. Super. 2013) (citation

omitted), appeal denied, 84 A.3d 1062 (Pa. 2014). “Prejudice means that,

absent counsel’s conduct, there is a reasonable probability the outcome of

the proceedings would have been different.”               Id.   If a reasonable basis

exists for the particular course chosen by counsel, the inquiry ends and

counsel’s     performance          is       deemed       constitutionally     effective.

Commonwealth v. Lauro, 819 A.2d 100, 106 (Pa. Super. 2003) (citations

omitted).    Failure to satisfy any prong of the test requires that the claim be

dismissed.    See Commonwealth v. O’Bidos, 849 A.2d 243, 249 (Pa.

Super. 2004).

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

process as well as during trial.”        Commonwealth v. Rathfon, 899 A.2d

365,   369    (Pa.     Super.    2006)      (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

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involuntary or unknowing plea.”     Commonwealth v. Hickman, 799 A.2d

136, 141 (Pa. Super. 2002) (citation omitted). “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.”    Id. (citations and internal quotation marks

omitted).

      Herein, Rivera argues that he was misled by trial counsel to believe he

would receive a significantly lesser sentence than the sentence imposed, and

that he would never have entered into the guilty plea had he been informed

of the actual potential sentence. See Appellant’s Brief at 5. As previously

noted, the PCRA court conducted a hearing on Rivera’s amended petition on

July 23, 2013.     At the hearing, at which Rivera appeared pro se, the

Commonwealth presented the testimony of Amy Sonin, Esquire, of the

Lehigh County Office of the Public Defender, who represented Rivera at his

preliminary hearing. Attorney Sonin testified that she did not discuss a plea

deal with Rivera at the preliminary hearing or otherwise discuss the length of

a potential sentence. See N.T., PCRA Hearing, 7/23/13 at 15-17.

      Following the Commonwealth’s direct examination, Rivera became

verbally    combative   and   refused    to   question   the   witness   on   cross-

examination.    See id. at 17-22.       After the witness was dismissed, Rivera

demanded the court appoint new counsel, declared that the court was

“violating [his] rights,” and informed the court that he was leaving. Id. 23-

24. Due to Rivera’s unwillingness to engage in the proceedings and support

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the claims raised in his PCRA petition, the court determined that Rivera had

abandoned his PCRA petition and dismissed the petition. See id. at 25-27.

     Although repeatedly informed by the court of his right to retain private

counsel, Rivera did not do so.     The PCRA court afforded Rivera ample

opportunity to prove his claims at the PCRA hearing.      By his outrageous

conduct, Rivera effectively abandoned the PCRA proceedings and thus failed

to establish even a single prong of the test required to prove ineffective

assistance of counsel. As such, this claim fails. See O’Bidos, supra.

     In his next issue on appeal, Rivera argues that the trial court erred in

allegedly basing his prior record score on a thirty-year-old juvenile

adjudication for burglary. This issue implicates the discretionary aspects of

Rivera’s sentence.   See Commonwealth v. McAfee, 849 A.2d 270, 274

(Pa. Super. 2004) (citation omitted) (“If a sentencing court considers

improper factors in imposing sentence upon a defendant, although the

sentence thereby imposed is not rendered illegal, the court has committed

an abuse of discretion.”).    This question does not raise a cognizable

challenge under the PCRA, which provides only for challenges to sentences

that have been imposed in excess of the lawful maximum.        42 Pa.C.S. §

9543(a)(2)(vii). See also Commonwealth v. Wrecks, 934 A.2d 1287,

1289 (Pa. Super. 2007) (citation omitted) (“Requests for relief with respect




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to the discretionary aspects of sentence are not cognizable in PCRA

proceedings.”). This claim, too, fails.2

       Rivera’s final issue on appeal merely regurgitates the arguments

raised in issues one and two. We need not address this final issue further.

     Order affirmed. Jurisdiction relinquished.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/18/2014




____________________________________________


2
  We additionally note that this claim is waived as Rivera could have raised
this issue on direct appeal, but did not do so. See 42 Pa.C.S. § 9544(b)
(“An issue is waived if appellant “could have raised it but failed to do so
before trial, at trial, ... on appeal or in a prior state postconviction
proceeding.”).



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