J-S48018-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 RODNEY SMITH                             :
                                          :
                    Appellant             :   No. 699 EDA 2017

               Appeal from the PCRA Order January 26, 2017
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                     No(s): CP-51-CR-0008634-2013

BEFORE:    DUBOW, J., MURRAY, J., and PLATT*, J.

MEMORANDUM BY MURRAY, J.:                           FILED AUGUST 28, 2018

      Rodney Smith (Appellant) appeals from the order dismissing his petition

filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-

9546. We affirm.

      The underlying convictions in this case stem from a March 12, 2013

home invasion during which Appellant and another individual forced the victim

to play “Russian Roulette” in front of her children.    On January 15, 2014,

Appellant entered an open guilty plea to the charges of aggravated assault,

robbery, burglary, conspiracy, possession of an instrument of crime, and two

violations of the Uniform Firearms Act. In exchange for Appellant’s guilty plea,

the Commonwealth dropped the charge of attempted murder. The remaining

charges were nolle prossed.

      During the guilty plea colloquy the trial court informed Appellant, inter

alia, that he was facing up to 152 years of incarceration if he did not plead
____________________________________
* Retired Senior Judge assigned to the Superior Court.
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guilty and was convicted of all crimes with which he was charged; that his

prior record score was two; that the guideline sentence was 54 to 66 months

if he did plead guilty and had several of his charges nolle prossed; and that,

ultimately, the court could not make any guarantees as to his sentence

because it would depend on his full pre-sentence investigation (PSI) report.

As it turns out, Appellant’s actual prior record score was four (not two) making

the guideline sentence 66 to 78 months (not 54 to 66 months) if he pled guilty.

Plea counsel did not correct these mistakes prior to Appellant’s plea.

      On March 18, 2014, with the benefit of a PSI report, the trial court

sentenced Appellant to an aggregate term of nine to eighteen years of

incarceration. Appellant did not file any post-sentence motions or a direct

appeal.

      On December 11, 2014, Appellant filed a timely pro se PCRA petition.

On July 17, 2015, the PCRA court appointed counsel, who filed an amended

petition on Appellant’s behalf on December 20, 2015. Appellant asserted that

plea counsel was ineffective for failing to ensure that the trial court properly

informed him of his prior record score and guideline sentence, and

consequently, his guilty plea was not knowing, voluntary, or intelligent. On

November 18, 2016, the Commonwealth filed a motion to dismiss Appellant’s

PCRA petition, which the PCRA court granted on January 26, 2017.




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      On February 18, 2017, Appellant timely appealed to this Court. Both

the PCRA court and Appellant have complied with Rule 1925 of the

Pennsylvania Rules of Appellate Procedure.

      On appeal, Appellant raises the following issue for review:       “Did the

PCRA Court err when it dismissed [Appellant]’s [a]mended [p]etition without

holding an [e]videntiary [h]earing?” Appellant’s Brief at 3. More specifically,

Appellant argues that the PCRA court erred in dismissing his ineffective

assistance of counsel claim as it relates to his guilty plea.

      In deciding ineffective assistance of counsel claims, we begin with the

presumption that counsel rendered effective assistance. Commonwealth v.

Bomar, 104 A.3d 1179, 1188 (Pa. 2014). To overcome that presumption,

the petitioner must establish: “(1) the underlying claim has arguable merit;

(2) no reasonable basis existed for counsel’s action or failure to act; and (3)

the petitioner suffered prejudice as a result of counsel’s error, with prejudice

measured by whether there is a reasonable probability that the result of the

proceeding would have been different.”            Id. (citation omitted).     To

demonstrate prejudice in an ineffective assistance of counsel claim, “the

petitioner must show that there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been

different.” Commonwealth v. King, 57 A.3d 607, 613 (Pa. 2012). If the

petitioner fails to prove any of these prongs, the claim is subject to dismissal.

Bomar, 104 A.3d at 1188.


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      “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.” Commonwealth v.

Moser, 921 A.2d 526, 531 (Pa. Super. 2007) (quotations and 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.

(quotations and citations omitted).       “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.” Commonwealth v. Barndt, 74 A.3d 185, 192 (Pa. Super.

2013) (quotations and citations omitted). “The reasonable probability test is

not a stringent one; it merely refers to a probability sufficient to undermine

confidence in the outcome.” Id. (quotations and citations omitted).

      With respect to valid guilty pleas, this Court has explained:

      A valid guilty plea must be knowingly, voluntarily and intelligently
      entered. The Pennsylvania Rules of Criminal Procedure mandate
      that pleas be taken in open court, and require the court to conduct
      an on-the-record colloquy to ascertain whether a defendant is
      aware of his rights and the consequences of his plea. Specifically,
      the court must affirmatively demonstrate the defendant
      understands: (1) the nature of the charges to which he is pleading
      guilty; (2) the factual basis for the plea; (3) his right to trial by
      jury; (4) the presumption of innocence; (5) the permissible ranges
      of sentences and fines possible; and (6) that the court is not
      bound by the terms of the agreement unless the court accepts the
      agreement. This Court will evaluate the adequacy of the plea
      colloquy and the voluntariness of the resulting plea by examining


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      the totality of the circumstances surrounding the entry of that
      plea.

Commonwealth v. Kelley, 136 A.3d 1007, 1013 (Pa. Super. 2016) (citations

omitted); see also Pa.R.Crim.P. 590.

      Appellant contends that his guilty plea was invalid because during the

colloquy, the trial court informed him of the wrong prior record score and

guideline sentence and plea counsel did not correct these mistakes. Appellant

asserts that, consequently, his guilty plea was not knowing, voluntary, and

intelligent.

      The record reflects that during his guilty plea colloquy, the trial court

specifically addressed with Appellant the subjects required by Rule 590 of the

Pennsylvania Rules of Criminal Procedure, including that Appellant understood

the nature of the charges to which he pled guilty, the factual basis for the

plea, that he had the right to trial by jury, that he is presumed innocent until

found guilty, and that the trial court was not bound by the terms of the plea

agreement. N.T., 1/15/14, at 14-22; Written Plea Colloquy, 1/15/14.

      With respect to Appellant’s sentence, the trial court concedes that it

incorrectly informed him of his prior record score (two instead of four), and as

a result, that it also informed him of the incorrect guideline sentence

associated with the charges to which he intended to plead guilty (54 to 66

months instead of 66 to 78 months). See Trial Court Opinion, 12/12/17, at

4-7; N.T., 1/15/14, at 5-9. Nevertheless, there is no dispute that prior to his

guilty plea, the trial court correctly informed Appellant that he was facing up

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to 152 years of incarceration if he did not plead guilty. Id. at 5. Furthermore,

the trial court explicitly informed Appellant that by entering an open guilty

plea, ultimately, the court would have to base the sentence on the PSI report.

Id. at 7.

      Based on the totality of the circumstances, we conclude that Appellant’s

guilty plea was knowing, voluntary, and intelligent, and that plea counsel’s

failure to ensure the trial court informed Appellant of the correct prior record

score and sentencing guidelines did not invalidate the plea. While the trial

court incorrectly informed Appellant of his prior record score and the guideline

sentence prior to his guilty plea, the court did so with the caveat that

ultimately, the court would determine his sentence based on the PSI report.

Appellant makes no claim that had the trial court told him the proper prior

record score and sentencing guidelines, he would not have pled guilty.

      Moreover, our Supreme Court has explained:

      [T]he decision to plead guilty to a charge could not be accepted
      as being knowingly and intelligently entered without an assurance
      that the accused fully comprehended the maximum punishment
      that might be imposed for his conduct. This information is
      obviously an integral part of the knowledge that should be
      possessed by one who is called upon to make the difficult decision
      whether to surrender his right to trial and to place himself at the
      mercy of the sentencing court.

Commonwealth v. Kulp, 382 A.2d 1209, 1211 (Pa. 1978). As discussed

above, there is no dispute that the trial court correctly informed Appellant of

his maximum possible sentence. N.T., 1/15/14, at 5.




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      In sum, the error by the trial court of informing Appellant of the incorrect

prior record score and guideline sentence does not rise to a level of manifest

injustice that would permit Appellant to withdraw his guilty plea.           See

Commonwealth v. Kehr, 180 A.3d 754, 756 (2018) (explaining that a

defendant must demonstrate a “manifest injustice” in order to withdraw a

guilty plea post-sentence); Commonwealth v. Broaden, 980 A.2d 124, 129

(Pa. Super. 2009) (“Manifest injustice may be established if the plea was not

tendered knowingly, intelligently, and voluntarily.” . . . A plea deficient in one

respect “does not per se establish prejudice on the order of manifest

injustice.”). Because the record supports the PCRA court’s determination that

Appellant’s guilty plea was knowing, voluntary, and intelligent, we conclude

that the trial court did not err in determining that Appellant’s PCRA petition

lacked merit.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/28/18




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