J-S37029-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

ANGEL ROSA

                        Appellant                   No. 2080 MDA 2013


          Appeal from the PCRA Order entered October 30, 2013
            In the Court of Common Pleas of Lebanon County
            Criminal Division at No: CP-38-CR-0001564-2011


BEFORE: LAZARUS, STABILE, and MUSMANNO, JJ.

MEMORANDUM BY STABILE, J.:                        FILED AUGUST 20, 2014

     Appellant, Angel Rosa, appeals from the October 30, 2013 order of the

Court of Common Pleas of Lebanon County dismissing his petition pursuant

to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-46.

Appellant argues the trial court erred in not finding plea counsel provided

ineffective assistance. We disagree. Accordingly, we affirm.

     The trial court set forth the facts and the procedural history underlying

this appeal in its opinion, which we incorporate herein by reference.     See

Trial Court Opinion, 10/30/13, at 1-8.

     Appellant raises the following issues for our review:

     1. [Appellant] was denied his constitutionally guaranteed right to
        effective representation when Plea Counsel unlawfully induced
        [Appellant] to plead guilty by advising him he would get a
        lesser sentence if he accepted the open plea proffered by the
        Commonwealth.
J-S37029-14




      2. Whether [Appellant] was denied his constitutionally
         guaranteed right to effective representation when Plea
         Counsel failed to investigate mitigating factors, such as the

         mental illness?



      In an appeal from a denial of post-conviction relief, our standard and

scope of review is as follows:

      We review an order dismissing a petition under the PCRA in the
      light most favorable to the prevailing party at the PCRA level.
      This review is limited to the findings of the PCRA court and the
                                                                   if it
      is supported by evidence of record and is free of legal error.

      the record supports it. Further, we grant great deference to the
      factual findings of the PCRA court and will not disturb those
      findings unless they have no support in the record. However, we
      afford no such deference to its legal conclusions. Where the
      petitioner raises questions of law, our standard of review is de
      novo and our scope of review plenary.

Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (internal

citations omitted).

      The PCRA subsection governing relief from a guilty plea requires that

the defendant prove that he was unlawfully induced to plead guilty and that

he is innocent:

      To be eligible for relief under this subchapter, the petitioner
      must plead and prove by a preponderance of the evidence all of
      the following: (2) That the conviction or sentence resulted from
      one or more of the following: (iii) A plea of guilty unlawfully
      induced where the circumstances make it likely that the
      inducement caused the petitioner to plead guilty and the
      petitioner is innocent.


                                    -2-
J-S37029-14



42 Pa.C.S.A. § 9543(a)(2)(iii).



counsel.

        Counsel   is   presumed       effective    and   will   only   be   deemed

        performance was deficient and he was prejudiced by that
        deficient performance. Prejudice is established if there is a
                                                                  result of
        the proceeding would have been different.           A reasonable
        probability is a probability sufficient to undermine confidence in
        the outcome.

        To properly plead ineffective assistance of counsel, a petitioner
        must plead and prove: (1) that the underlying issue has

        reasonable     basis;   and    (3)   actual   prejudice    resulted   from

        meet any elements of the above-cited test, his claim must fail.

Id. (quoting Commonwealth v. Burkett, 5 A.3d 1260, 1271-72 (Pa.

Super. 2010)); see also Commonwealth v. Lynch, 820 A.2d 728, 733




        In his first issue, Appellant argues plea counsel was ineffective

because he led Appellant to believe he would get a lesser sentence if he




at 9.




                                             -3-
J-S37029-14



       In its opinion

that plea counsel coerced him into accepting an open plea, discussed the



See Trial Court Opinion, 10/30/13, at 5-6, 10-11. As the trial court noted,

Appellant did not allege he is innocent. Id. at 10. Second, the court noted



this case, clearly indicates that [Appellant] was well aware of his options and




10/30/13, at 10, 11.        The trial court finally noted that Appellant did not

                                rial court] did actually impose a sentence which

                                                           Id.

analysis and conclusions are correct, and we therefore affirm on this basis in
                                     1



       Next, Appellant argues plea counsel was ineffective because counsel

failed to properly investigate the case. Had he done so, counsel would have

discovered that he was under the influence at the time of the underlying




____________________________________________


1
  To the extent Appellant now argues he wanted to proceed to trial, as
opposed to taking a plea, Appellant provides no evidence in the record
supporting this claim. Assuming it is not waived, the claim is nonetheless
without merit because it is devoid of any support in the record.




                                           -4-
J-S37029-14



crimes and that he had a long history of mental illness

10.

        The trial court noted that voluntary intoxication was not a defense

applicable in this matter.       Trial Court Opinion, 10/30/13, at 12 (citing 18

Pa.C.S.A. § 308, relating to intoxication or drugged condition).          The trial

court also noted Appellant himself, after hearing from his plea counsel what

was involved, decided he did not want to pursue the insanity defense. Id. at

12-13. The court also noted that the insanity defense would not have been

                                      both his statements to his attorney and his

                                                       Id. at 13.2 Accordingly, the

trial court concluded plea counsel was not ineffective for failing to assert

                                               Id.   The trial cou

conclusions are correct, and we therefore affirm on this basis in rejecting




be attached to any future filings in this case.

        Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary Date: 8/20/2014
____________________________________________


2
    See also 18 Pa.C.S.A. § 315 (relating to insanity).



                                           -5-
