J-S62006-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                         Appellee

                    v.

WILLIAM R. PERKINS,

                         Appellant                  No. 806 EDA 2014


           Appeal from the PCRA Order entered February 7, 2014,
           in the Court of Common Pleas of Montgomery County,
            Criminal Division, at No(s): CP-46-CR-0007355-2010
                         & CP-46-CR-0003367-2011


BEFORE: ALLEN, OLSON, and OTT, JJ.

MEMORANDUM BY ALLEN, J.:                        FILED OCTOBER 06, 2014



petition for relief under the Post-

sections 9541-46. We affirm.

      The PCRA court summarized the pertinent facts and procedural history

as follows:

            On November 1, 2012, Appellant entered an open guilty
         plea before this Court to two (2) counts of Criminal
         Conspiracy to Commit Burglary, 18 Pa.C.S.A. § 903(a)(1),
         both felonies of the first degree, and one (1) count of
         Accidents involving Damage to Attended Vehicle, 75
         Pa.C.S.A. § 3743(a), a misdemeanor of the third degree.
         The Commonwealth, in return, agreed to nolle pros over
         two hundred additional charges. As part of the guilty plea,
         Appellant admitted that he entered into an agreement with
         another man, John Wilson, to engage in burglaries that
         involved entering the homes of elderly residents without
         permission in order to take property that did not belong to
         [them]. Appellant admitted that he was the driver for
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        thirty-five burglaries     committed     with   Wilson    in
        Montgomery County.

            A sentencing hearing was held before this Court on
        March 5, 2013. Appellant was sentenced to an aggregate
        sentence of not less than ten (10) years and not more
        than twenty (20) years. During pre-trial, guilty plea, and
        sentencing proceedings, Appellant was represented by
        [trial counsel].

           Appellant filed a direct appeal, which was discontinued
        on May 3, 2013. [New counsel] represented Appellant
        during post-trial appellate proceedings.

           On August 6, 2013, Appellant filed a pro se [PCRA
        petition], and this Court appointed [PCRA counsel] to
        represent him. PCRA counsel filed an amended petition

        nor intelligent as a result of his alleged physical and
        mental impairments and the side effects of medications;
        and (2) resulted from the alleged ineffective assistance of
        trial counsel.

            On February 7, 2014, this Court held an evidentiary
                              s PCRA Petition in which Appellant
        and former trial counsel testified. After hearing, and upon
        review of the record, this Court determined that Appellant
        failed to plead and prove that he was entitled to relief.
        The Court issued an Order dismissing Appel
        Petition that same day.

PCRA Court Opinion, 6/3/14, at 1-2.       This timely appeal followed.   Both

Appellant and the PCRA court have complied with Pa.R.A.P. 1925.

     Appellant raises the following issues:

        A. Did the [PCRA court] err in dismissing
        petition], where [Appellant] did not render a knowing,
        intelligent and voluntary plea due to the effect of his
        prescribed medications?


                                                    l rendered
        ineffective assistance by advising [him] that he would


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         receive a forty (40) to eighty (80) month sentence of
         imprisonment in exchange for entering open guilty pleas
         and [Appellant] was thereafter sentenced to ten (10) to
         twenty (20) years of imprisonment?




      In reviewing the propriety of an order granting or denying PCRA relief,

an appellate court is limited to ascertaining whether the record supports the

determination of the PCRA court and whether the ruling is free of legal error.

Commonwealth v. Johnson, 966 A.2d 523, 532 (Pa. 2009). We pay great



                                 Id.

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

                         Commonwealth v. Hernandez, 79 A.3d 649, 651

(Pa. Super. 2013).

      In order to be eligible for relief under the PCRA, a petitioner must

plead and prove by a preponderance of the evidence that his conviction or

sentence resulted from one or more of the enumerated errors or defects in

42 Pa.C.S.A. section 9543(a)(2), and that the issues he raises have not been

previously litigated.   Commonwealth v. Koehler, 36 A.3d 121, 131 (Pa.



court in which the petitioner could have had review as a matter of right has

ruled on the merits of the issue, or if the issue has been raised and decided

                                                                    Koehler,

36 A.3d at 131-132; 42 Pa.C.S.A. § 9544(a)(2).       If a claim has not been

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previously litigated, the petitioner must prove that the issue was not waived.



raised it but failed to do so before trial, at trial, during unitary review, on

appeal, or in a prior state post[-]convictio                  Id. at 132; 42

Pa.C.S.A. § 9544(b).

      Finally, one of the errors enumerated in section 9543(a)(2) of the

PCRA is a claim of ineffectiveness of counsel.     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.        Id.

performance is presumed to be constitutionally adequate, and counsel will

                                                                           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 reas

unprofessional errors, the result of the proceeding would have been

different." Id. Counsel cannot be deemed ineffective for failing to pursue a

meritless claim. Commonwealth v. Loner, 836 A.2d 125, 132 (Pa. Super.

2003) (en banc), appeal denied, 852 A.2d 311 (Pa. 2004).


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     In his first issue, Appellant asserts that the PCRA court erred in

determining that, despite the effect of his medications, he entered a

voluntary plea. Because Appellant could have raised this claim in his direct

appeal, it is waived under the PCRA.           Koehler, supra; see also

Commonwealth v. Berry, 877 A.2d 479, 482 (Pa. Super. 2004) (en banc).

As stated by the PCRA court:



        medications at the open guilty plea hearing is waived
        because he could have litigated the issue on direct appeal
        but did not do so. Notably, Appellant does not frame the
        issue as one of trial counsel ineffectiveness, but simply
        raises it as a direct challenge to the knowing, voluntary,
        and intelligent nature of his plea. As such the issue is not
        cognizable under the PCRA.

PCRA Court Opinion, 6/3/14, at 4-5 (citation omitted).

     Even if Appellant has properly framed his claim, the PCRA court

concluded that the record refutes his challenge to the validity of his guilty

plea. We agree.

     When asserting a claim of ineffectiveness of counsel in the context of a



induced him to enter the plea. Commonwealth v. Johnson, 875 A.2d 328,

331 (Pa. Super. 2005). As this Court stated:

            Because a plea of guilty effectively waives all non-
        jurisdictional defects and defenses, after sentencing,
        allegations of ineffectiveness of counsel in this context
        provide a basis for withdrawal of the plea only where there

        and an unknowing or involuntary plea.       The guilty plea


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        hearing becomes the significant procedure under scrutiny.
        The focus of the inquiry is whether the accused was misled
        or misinformed and acted under that misguided influence
        when entering the guilty plea.

Commonwealth v. Flood, 627 A.2d 1193, 1199 (Pa. Super. 1993)

(citations omitted).

      Further, this Court summarized:

        Our law presumes that a defendant who enters a guilty plea
        was aware of what he was doing. He bears the burden of
        proving otherwise.

                             *      *      *

            The long standing rule of Pennsylvania law is that a
        defendant may not challenge his guilty plea by asserting
        that he lied while under oath, even if he avers that counsel
        induced the lies. A person who elects to plead guilty is
        bound by the statements he makes in open court while
        under oath and may not later assert grounds for
        withdrawing the plea which contradict the statements he
        made at his plea colloquy.

                             *      *      *

        [A] defendant who elects to plead guilty has a duty to
        answer questions truthfully.     We [cannot] permit a
        defendant to postpone the final disposition of his case by
        lying to the court and later alleging that his lies were
        induced by the prompting of counsel.

Commonwealth v. Pollard, 832 A.2d 517, 523-24 (Pa. Super. 2003)

(citations omitted).

      The PCRA court explained its reasons for concluding that App

guilty plea was valid as follows:

            Here, Appellant does not allege a deficiency with regard
         [the information the trial court gave him before the entry

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        of his guilty plea]. Appellant also does not allege that he
        is innocent of the crimes to which he pleaded guilty.
        Instead, he asserts that his plea was not knowing,
        voluntary, or intelligent because he was allegedly under
        the disabling influence of prescription medications.
        However, Appellant repeatedly stated under oath that the
        medications he was taking at the time he offered his plea
        did not affect his ability to understand what he was doing.



            At his open guilty plea hearing, Appellant repeatedly
        affirmed that he understood what he was doing and that
        any medication [he had taken] had not impaired his ability
        to understand what he was doing[.]

                                   ***

           Appellant stated numerous times under oath that, while
        he purportedly was taking medications at the time he
        offered his open guilty plea, they did not affect his ability
        to understand what he was doing. He also stated that he
        was not taking [a drug for AIDS, which could affect his
        judgment,] at the time he entered his guilty plea. He is
        bound by his sworn testimony, and it is improper for him
        to contradict his testimony now and assert that he was
        unaware of what he was doing when he pleaded guilty.

PCRA Court Opinion, 6/3/14, at 6-7 (citations omitted).

     Our review of the open guilty plea hearing suppor

conclusion that Appellant repeatedly assured the court that he understood

the proceedings despite any prescription medication he had taken. Thus, as

found by the PCRA court, Appellant is bound by his statements.          Pollard,

supra. Appel

     Appellant has properly phrased his remaining issue as one in which



eighty month sentence induced him to enter an invalid plea.        Citing the

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United St                                   Lafler v. Cooper, 132 S.Ct. 1376

(2012), Appellant first claims that he is entitled to relief because trial



to fourteen year sentence, and enter an open plea, resulting in an actual

sentence longer than the original offer. In the alternative, Appellant claims

he entered his open guilty plea because trial counsel had informed him there

                                                                 ghty month

sentence.

                                                           Lafler, supra, is

misplaced. We agree. As explained by the PCRA court:

           [I]n Lafler, the defendant rejected a plea offer on the
        advice of counsel, proceeded to trial, [was convicted], and
        received a more severe sentence. Notably, Lafler went
        before the U.S. Supreme Court with a stipulation that

        defendant that he could not be convicted at trial. Here, no
        such stipulation was before the Court.         In addition,
        Appellant did not [forgo] a plea and proceed to trial. He
        entered a knowing, voluntary, and intelligent open plea in
        the hopes that the Court would impose a lighter sentence
        than the purported plea deal. He repeatedly affirmed
        during the guilty plea hearing that he understood the
        possible sentences he faced, that the Court had discretion
        to sentence him within the sentencing guidelines, or above

                              1/12, at 19].

PCRA Court Opinion, 6/3/14, at 8-9.



conclusion.   It is undisputed that Appellant did not reject the seven to

fourteen years initially offered by the Commonwealth due to the advice of

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counsel, but rather because Appellant told counsel that he could not serve

that long of a sentence. See N.T., 2/7/14, at 4. At the PCRA hearing, trial

counsel testified that the strategy accepted by Appellant was to enter an




                     See id., at 33. As noted by the PCRA court, the fact

that Appellant received a somewhat longer sentence than previously offered

does not equate to the stipulated ineffectiveness that caused the defendant

in Lafler to reject the proffered plea and proceed to trial.    See, e.g.,

Commonwealth v. Lewis, 63 A.3d 1274, 1280 (Pa. Super. 2013) (citing

                                         Lafler




     Appellant also argues that his guilty plea is invalid because trial



sentenced to a forty to eighty month prison term. Once again, our review of

the written guilty plea and ora

claim.



assertion. N.T., 2/7/14, at 28. Moreover, Appellant agreed in the written

guilty plea colloquy that no promises were made to him, an answer which



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Appellant twice affirmed during the oral plea colloquy. See N.T., 11/1/12, at

8, 17.       At the PCRA hearing, Appellant explained that it was his



Commonwealth, he was not to relay this fact to the trial court. According to

Appellant:

             When you make a guilty plea, you know, whether it be
          in Philadelphia, and it was a negotiated plea, your
          response is, no, it is not negotiated and that is - - there
          was no deals when I was coming up in the system, there
          was no offer. There was none of this.

            So I thought if by telling [the trial court] what [it]
          wanted to hear that I was going - - being in compliance

          supposed to tell you, yeah, I have an agreed deal for 40 to
          80 months[.]

                                          ***

              I believed there was a plea agreement. I believed the
          [trial court] told [trial counsel] he was going to give me to
          [sic] 40 to 80 months. That is what I believed.

N.T., 2/7/14, at 20-21.1

       When asked by the Commonwealth why at sentencing he did not




          If you had a deal, it was under the table, because they


____________________________________________


1
  Appellant was sixty-four years of age at the time of sentencing, and had
spent thirty-three of those years in prison. See N.T., 3/5/13, at 18.




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         they did things.

N.T., 2/7/14, at 23.    In essence, Appellant asserts that he lied during the

plea colloquy.   As noted above, such an averment does not entitle him to

post-conviction relief. Pollard, supra.



                                                                            -

conviction relief.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/6/2014




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