J-S03035-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

SANJAY PATEL

                        Appellant                   No. 1993 EDA 2014


                Appeal from the PCRA Order June 10, 2014
           In the Court of Common Pleas of Montgomery County
            Criminal Division at No(s): CP-46-CR-0006368-2011


BEFORE: FORD ELLIOTT, P.J.E., PANELLA, J., and OTT, J.

MEMORANDUM BY OTT, J.:                               FILED APRIL 06, 2015

      Sanjay Patel appeals from the order entered June 10, 2014, in the

Court of Common Pleas of Montgomery County, dismissing his petition

seeking collateral relief pursuant to the Post Conviction Relief Act (“PCRA”),

42 Pa.C.S. §§ 9541–9546. Patel claims trial counsel was ineffective in failing

to advise him the drug possession charge at the criminal docket number

underlying this appeal was subject to a three-year maximum sentence, and

not a one-year maximum sentence as he was advised at his guilty plea

hearing. See Patel’s Brief at 3. Based upon the following, we affirm.

      The PCRA court has summarized the background of this case as

follows:
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       On November 16, 2012, [Patel] entered an open guilty plea on
       file 6368-2011, to possession of heroin; on file 7172-2012, to
       possession of heroin and on file 3840-2012, to retail theft.[1]
       During the colloquy and pertinent to this appeal, [Patel] was
       incorrectly advised by the Commonwealth that the possession
       charge at file 6368-11 carried a one-year maximum. (Guilty Plea
       11/16/12 pp. 10 -11). [Patel] was also advised by this Court that
       the second possession charge had a maximum sentence of three
       years, and that the retail theft charge carried a two-year
       maximum. Id.

       Sentencing was held on February 21, 2013.[2] [Patel] was
       sentenced on each of the possession convictions to a term of 6
       to 23 months’ imprisonment, to run concurrent to each other[,
       followed by a one year term of probation, to run concurrent with
       each other]. On the retail theft charge, [Patel] was sentenced to
       a two year probationary term, consecutive to the previous
       sentences. In aggregate, [Patel] was sentenced to 6 to 23
       months’ imprisonment, followed by [three] years’ probation. No
       appeal was taken.

       On February 20, 2014, [Patel] filed a [counseled] PCRA petition,
       to which the Commonwealth filed an Answer and Motion to
       Dismiss. Thereafter, [Patel] filed an Amended PCRA petition on
       June 4, 2014. The following day, the Commonwealth again filed
       an Answer and Motion to Dismiss. Argument on the petition was
       held on June 10, 2014. Following argument this Court issued the
       Final Order of Dismissal dated June 10, 2014, which is the
       subject of this appeal.


____________________________________________


1
  In exchange for Patel’s agreement to enter the open guilty plea, the
Commonwealth withdrew six felony counts, and allowed Patel to plead guilty
to three misdemeanors. See N.T., 2/21/2013 (Sentencing), at 17.
2
  Prior to imposing sentence, the trial court noted the presentence report
indicated that both of Patel’s drug possession charges were subject to a
three-year maximum sentence, and determined that “the prior possession
with intent would make these [drug possession charges] both three years.”
Id. at 9.




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PCRA Court Opinion, 8/11/2014, at 1-2.3

       At the outset, we state the principles that guide our review:

       When reviewing the propriety of an order granting or denying
       PCRA relief, this Court is limited to determining whether the
       evidence of record supports the determination of the PCRA court
       and whether the ruling 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. Rachak, 62 A.3d 389, 391 (Pa. Super. 2012) (citations

omitted), appeal denied, 67 A.3d 796 (Pa. 2013).

       Counsel is presumed effective and will only be deemed
       ineffective if the petitioner demonstrates that counsel’s
       performance was deficient and he was prejudiced by that
       deficient performance. Prejudice is established if there is a
       reasonable probability that, but for counsel’s errors, the 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
       arguable merit; (2) counsel’s actions lacked an objective
       reasonable basis; and (3) actual prejudice resulted from
       counsel’s act or failure to act. If a petitioner fails to plead or
       meet any elements of the above-cited test, his claim must fail.

Commonwealth v. Ford, 44 A.3d 1190, 1194–1195 (Pa. Super. 2012)

(citation omitted), appeal denied, 54 A.3d 347 (Pa. 2012).

           It is clear that a criminal defendant’s right to effective
           counsel extends to the plea process, as well as during
____________________________________________


3
  We note that Patel timely complied with the PCRA court’s order to file a
concise statement of errors complained of on appeal pursuant to Pa.R.A.P.
1925(b).



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         trial. However, [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.
         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.

      “[T]he law does not require that [the defendant] be pleased with
      the outcome of his decision to enter a plea of guilty: All that is
      required is that [his] decision to plead guilty be knowingly,
      voluntarily, and intelligently made.” Moreover, with regard to the
      prejudice prong, where an appellant has entered a guilty plea,
      the appellant must demonstrate “it is reasonably probable that,
      but for counsel’s errors, he would not have pleaded guilty and
      would have gone to trial.”

Commonwealth v. Timchak, 69 A.3d 765, 769–770 (Pa. Super. 2013)

(citations omitted).

      It is well established that when a defendant seeks to withdraw a
      guilty plea after sentencing, “a showing of prejudice on the order
      of manifest injustice is required before withdrawal is properly
      justified.” In certain circumstances, the failure to inform a
      defendant of the maximum possible sentence he or she could
      receive has been found to be a manifest injustice. For instance,
      this is the case when the defendant receives a sentence in
      excess of what he was informed the maximum sentence could
      be. However, “if a defendant enters an open guilty plea and
      justifiably believes that the maximum sentence is less than what
      he could receive by law, he may not be permitted to withdraw
      the plea unless he receives a sentence greater than what he was
      told.”

Commonwealth v. Warren, 84 A.3d 1092, 1096 (Pa. 2014) (citation

omitted). See also Commonwealth v. Carter, 656 A.2d 463, 466 (Pa.

1995) (where defendant’s aggregate penalty did not exceed the maximum

single-count sentence of which he was aware when he pled nolo contendere,


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he was not prejudiced by the lack of accurate advice regarding his potential

maximum sentence).

       The record reflects that while Patel was advised at the guilty plea

hearing that the drug possession charge at this docket carried a maximum

sentence of one year, rather than three years,4 he was correctly informed

that the drug possession charge at criminal docket number 3840-12 carried

a three-year maximum sentence, and that the retail theft charge carried a

two year maximum sentence. In addition, Patel acknowledged in the written

guilty plea colloquy that the sentences could be imposed consecutively.

Therefore, Patel was aware that he was facing an aggregate maximum

sentence of six years, even though the lawful maximum sentence was eight

years’ imprisonment.

       Here, Patel was sentenced to less than five years. As stated above, on

the drug charges at the separate dockets, the trial court imposed two

concurrent sentences of 6 to 23 months’ imprisonment, followed by

concurrent one-year terms of probation, and on the retail theft charge,

imposed a consecutive two year probationary term. As such, the sentence

imposed was less than the six-year maximum sentence communicated to


____________________________________________


4
  As noted earlier in this memorandum, at sentencing the court discussed
the fact that the drug charge at this docket carried a three-year maximum
sentence. See N.T., 2/21/2013 (Sentencing), at 8–9.




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Patel. Accordingly, applying Warren, supra, and Carter, supra, no relief is

due.5

        Order affirmed.




____________________________________________


5
   Patel attempts to distinguish Warren, cited by the PCRA court in its
opinion, and, Commonwealth v. Carter, 656 A.2d 463 (Pa. 1995), relied
upon by the Commonwealth in its brief, on the basis that in these cases,
“the defendants were not sentenced above the individual maximum sentence
that they were advised for the crimes charged.” Patel’s Brief, at 9. We are
not persuaded by this argument. In Warren, only one charge, possession
with intent to deliver, was at issue. Furthermore, in Carter, where the
defendant pled nolo contendere to four counts of burglary and was not told
the sentences would be run consecutively, the Pennsylvania Supreme Court
determined the appellant suffered no prejudice where he was sentenced to
less than he could have received on one burglary count. Both Warren and
Carter turned on the question of whether the defendant suffered manifest
injustice by receiving a higher sentence than what he was aware he could
receive. See Carter, 656 A.2d at 466; Warren, 84 A.3d at 1096–1097.

      Patel also claims that he is prejudiced by the possibility that if he were
to violate probation, he could end up a serving a sentence one month
greater than the six-year sentence advised at the time of his guilty plea.
See Patel’s Brief at 10. However, this theory of prejudice is speculative and,
therefore, unavailing. Moreover, in claiming prejudice, Patel completely
ignores the fact that as a result of plea negotiations, the Commonwealth
withdrew six felony counts, and allowed Patel to plead guilty to three
misdemeanors. See N.T., 2/21/2013 (Sentencing), at 17. In sum, Patel
has not proven “it is reasonably probable that, but for counsel’s errors, he
would not have pled guilty and would have gone to trial.” Timchak, supra.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/6/2015




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