J-S10003-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

SHAWN PAUL ARNOLD,

                            Appellant                No. 2257 EDA 2013


                   Appeal from the PCRA Order July 19, 2013
             in the Court of Common Pleas of Montgomery County
              Criminal Division at Nos.: CP-46-CR-0001729-2009
                            CP-46-CR-0004753-2009
                            CP-46-CR-0004754-2009
                            CP-46-CR-0008422-2008
                            CP-46-CR-0008423-2008


BEFORE: GANTMAN, P.J., STABILE, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                             FILED MARCH 03, 2015

        Appellant, Shawn Paul Arnold, appeals from the order of July 19, 2013,

that denied, following a hearing, his first petition brought under the Post

Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546.          On appeal,

Appellant claims he received ineffective assistance of plea counsel. For the

reasons discussed below, we affirm the denial of the PCRA petition.

        We take the underlying facts and procedural history in this matter

from this Court’s memorandum on direct appeal.


____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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           The background underlying this matter can be summarized
     in the following manner. Appellant entered an open plea of
     guilty to five armed robberies[, which occurred over the period
     of one month in three separate counties]. Appellant previously
     had been convicted of two robberies. For purposes of the
     mandatory minimum sentencing scheme found at 42 Pa.C.S.A. §
     9714(a), the Commonwealth considered these previous
     convictions as Appellant’s “first strike.” As to Appellant’s
     convictions stemming from his open guilty plea, the
     Commonwealth sought to have Appellant sentenced as a
     multiple “second strike” offender pursuant to 42 Pa.C.S.A. §
     9714(a)(1). More specifically, the Commonwealth requested
     that the trial court sentence Appellant to at least three
     consecutive ten- to twenty-year terms of imprisonment. On
     December 2, 2009, the court sentenced Appellant in the
     following manner:

                 . . . On 8422-08, Appellant was sentenced to a
           period of imprisonment of ten to twenty years. On
           8423-08, Appellant was sentenced to a period of
           imprisonment of ten to twenty years to run
           consecutive to 8422-08. On 1729-09, Appellant was
           sentenced to a period of imprisonment of ten to
           twenty years to run concurrent with the sentence
           imposed at 8423-08. On 4753-09, Appellant was
           sentenced to a period of imprisonment of ten to
           twenty years to run concurrent with the sentenced
           imposed at 1729-09, and on 4754-09, Appellant was
           sentenced to a period of imprisonment of ten to
           twenty years to run concurrent with the sentence
           imposed at 4753-09. . . .

     Trial Court Opinion, 11/18/10, at 1-2.

           Appellant filed a petition for reconsideration of sentence,
     which the trial court denied. After the time to file a direct appeal
     had passed, Appellant filed a “Motion for Leave to File Notice of
     Appeal Nunc Pro Tunc.” The trial court granted the motion, and
     Appellant filed a notice of appeal.




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(See    Commonwealth         v.   Arnold,    1676     EDA    2011,   unpublished

memorandum at 1-3 (Pa. Super. filed May 16, 2011) (quoting Trial Court

Opinion, 11/18/10 at 1-2) (footnotes omitted)).

       This Court affirmed the judgment of sentence on May 16, 2011. See

Arnold, supra at 1.      On December 29, 2011, the Pennsylvania Supreme

Court denied leave to appeal.

       On April 5, 2012, Appellant, acting pro se, filed the instant, timely

PCRA petition. On April 18, 2012, the PCRA court appointed counsel, who

filed an amended PCRA petition on June 15, 2012.            A PCRA hearing took

place on August 7 and 31, 2012. The PCRA court denied Appellant’s PCRA

petition on July 19, 2013.    The instant, timely appeal followed.     Appellant

filed a timely concise statement of errors complained of on appeal on

September 3, 2013. See Pa.R.A.P. 1925(b). On September 29, 2014, the

trial court filed an opinion. See Pa.R.A.P. 1925(a).

       On appeal, Appellant raises the following question for our review:

       I.    Whether the [PCRA] court erred in denying Appellant’s
             claim that his plea was rendered unknowing, involuntary
             and unintelligent as a result of [plea] counsel’s
             ineffectiveness in misadvising him that he was subject to a
             mandatory minimum sentence of twenty-five (25) years to
             life imprisonment as a “third strike” offender, where
             Appellant was only a “second strike” offender such that an
             automatic sentence of twenty-five (25) years to life was an
             unlawful sentence?

(Appellant’s Brief, at 4) (capitalization omitted).

       Our standard of review for an order denying PCRA relief is well settled:


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            This Court’s standard of review regarding a PCRA court’s
      order is whether the determination of the PCRA court is
      supported by the evidence of record and is free of legal error.
      Great deference is granted to the findings of the PCRA court, and
      these findings will not be disturbed unless they have no support
      in the certified record.

Commonwealth v. Carter, 21 A.3d 680, 682 (Pa. Super. 2011), appeal

denied, 72 A.3d 600 (Pa. 2013) (citations and quotation marks omitted).

      Appellant claims that he received ineffective assistance of plea

counsel. (See Appellant’s Brief, at 14-19). “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).   Further, “[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 the defendant to enter          an involuntary or unknowing plea.”

Commonwealth v. Hickman, 799 A.2d 136, 141 (Pa. Super. 2002)

(citation omitted).   Also, “[w]here the defendant enters his plea on the

advice of counsel, the voluntariness of the plea depends upon whether

counsel’s advice was within the range of competence demanded of attorneys

in criminal cases.” Id. (internal quotation marks and citations omitted).

      We presume that counsel is effective, and Appellant bears the burden

to prove otherwise. See Commonwealth v. Bennett, 57 A.3d 1185, 1195

(Pa. 2012). The test for ineffective assistance of counsel is the same under

both the Federal and Pennsylvania Constitutions.             See Strickland v.

Washington, 466 U.S. 668, 687-88 (1984); Commonwealth v. Jones,

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815 A.2d 598, 611 (Pa. 2002). Appellant must demonstrate that: (1) his

underlying claim is of arguable merit; (2) the particular course of conduct

pursued by counsel did not have some reasonable basis designed to

effectuate his interests; and (3) but for counsel’s ineffectiveness, there is a

reasonable probability that the outcome of the proceedings would have been

different. See Commonwealth v. Pierce, 786 A.2d 203, 213 (Pa. 2001),

abrogated on other grounds, Commonwealth v. Grant, 813 A.2d 726 (Pa.

2002).       A failure to satisfy any prong of the test for ineffectiveness will

require rejection of the claim. See Jones, supra at 611. Where, as here,

Appellant pleaded guilty, in order to satisfy the prejudice requirement, he

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.”    Rathfon, supra at 370 (citation omitted).      Appellant has utterly

failed to do so.

          Here, Appellant claims that plea counsel incorrectly informed him that

he was eligible for the imposition of a “third strike” mandatory minimum

sentence, and that he pleaded guilty only to avoid that sentence.          (See

Appellant’s Brief, at 14). However, at the PCRA hearing, plea counsel

testified, and the PCRA court credited his testimony, that Appellant wanted

to plead guilty because he “was essentially caught and there was no way

around it. . . . We essentially had no defense.”          (N.T. PCRA Hearing,

8/31/12, at 14; see also PCRA Court Opinion, 9/29/14, at 19).           Counsel


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explained that Appellant discarded a bag at the scene of one of the robberies

that contained the sunglasses, mask, and fake gun used in the robberies, as

well as a credit card receipt for the purchase of those items, bearing

Appellant’s name. (See N.T. PCRA Hearing, supra at 14). He further noted

that Appellant gave a statement to the police admitting to his participation in

all of the robberies. (See id. at 18). Further, the PCRA court did not credit

Appellant’s testimony that he believed that the third strike provision applied

to his crimes.     (See PCRA Ct. Op., 9/29/14, at 19).           We accord great

deference to a PCRA court’s credibility findings.             Commonwealth v.

Dennis, 17 A.3d 297, 305 (Pa. 2011). Further, where, as here, the record

supports them; such determinations are binding on a reviewing court. See

id.

      We have held that where the record clearly shows that the court

conducted     a   thorough   guilty   plea   colloquy   and   that   the   defendant

understood his rights and the nature of the charges against him, the plea is

voluntary.    See Commonwealth v. McCauley, 797 A.2d 920, 922 (Pa.

Super. 2001). In examining whether the defendant understood the nature

and consequences of his plea, we look to the totality of the circumstances.

See id.      At a minimum, the trial court must inquire into the following six

areas:

      (1)     Does the defendant understand the nature of the charges
              to which he is pleading guilty?

      (2)     Is there a factual basis for the plea?

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

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

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

Id. (citation omitted); see also Pa.R.Crim.P. 590, Comment.

      Defense counsel or the attorney for the Commonwealth, as permitted

by the court, may conduct this examination.           See Pa.R.Crim.P. 590,

Comment.      Moreover, the examination may consist of both a written

colloquy that the defendant read, completed, and signed, and made a part of

the record; and an on-the-record oral examination. See id.

      Here, Appellant signed a written plea colloquy and engaged in an oral

colloquy with the trial court. (See Written Guilty Plea, 9/08/09, at 8; N.T.

Guilty Plea Hearing, 9/08/09, at 3-18). At the guilty plea hearing, Appellant

testified that he had gone over the written plea colloquy with counsel, that if

he was asked the questions contained in the written plea colloquy under his

oath, his answers would be the same, and that he had initialed and signed

the written plea colloquy. (See N.T. Guilty Plea Hearing, 9/08/09, at 12).

In the written plea colloquy, Appellant agreed that he was guilty of the

charged crimes; he understood the maximum sentence he could receive and



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that the sentences could run consecutively; he was pleading guilty of his

own free will; and he was satisfied with counsel’s representation.         (See

Written Guilty Plea, supra at 3, 4, and 6).           Appellant did not make any

complaints or voice any dissatisfaction with counsel’s representation during

the plea colloquy. (See N.T. Guilty plea, supra at 3-18).1

       The statements made during a plea colloquy bind a criminal defendant.

See Commonwealth v. Muhammad, 794 A.2d 378, 384 (Pa. Super.

2002). Thus, a defendant cannot assert grounds for withdrawing the plea

that contradict statements made at that time.            See Commonwealth v.

Stork, 737 A.2d 789, 790-91 (Pa. Super. 1999), appeal denied, 764 A.2d

1068 (Pa. 2000).        Further, “[t]he law does not require that appellant be

pleased with the outcome of his decision to enter a plea of guilty: ‘All that is

required is that [appellant’s] decision to plead guilty be knowingly,

voluntarily and intelligently made.’”          Commonwealth v. Yager, 685 A.2d

1000, 1004 (Pa. Super. 1996) (en banc), appeal denied, 701 A.2d 577 (Pa.
____________________________________________


1
   We note that during the three-month interval between the guilty plea and
sentencing Appellant did not seek to withdraw his guilty plea or make any
complaints regarding counsel’s stewardship. Further, Appellant did not
make any complaints at sentencing. (See N.T. Sentencing, 12/02/09, at 3-
38). Moreover, as the PCRA court cogently discusses, during the post-
sentence motion and direct appeal period, Appellant never claimed that his
guilty plea was unknowing because he wrongly believed that he was subject
to a third-strike sentence, but rather contended that the trial court abused
its discretion in imposing a consecutive sentence. (See PCRA Ct. Op., at 5-
7). Appellant did not raise the issue of an involuntary guilty plea until he
filed the instant PCRA petition almost three years after he pleaded guilty.
(See id. at 7).



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1997) (citation omitted). Here, Appellant has not shown that his decision to

enter the guilty plea was involuntary.     He has therefore failed to prove

prejudice.   Thus, his claim of ineffective assistance of plea counsel lacks

merit.

      Accordingly, we affirm the denial of his PCRA petition.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/3/2015




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