J-S07033-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

LINFORD LEROY RIEHL

                            Appellant                 No. 1060 MDA 2014


                   Appeal from the PCRA Order June 11, 2014
               In the Court of Common Pleas of Lancaster County
              Criminal Division at No(s): CP-36-CR-0004927-2011


BEFORE: BENDER, P.J.E., OLSON, J., and OTT, J.

MEMORANDUM BY OTT, J.:                           FILED FEBRUARY 26, 2015

       Linford Leroy Riehl appeals from the order entered June 11, 2014, in

the Court of Common Pleas of Lancaster County, that denied, following a

hearing, his petition for relief filed pursuant to the Post Conviction Relief Act

(PCRA), 42 Pa.C.S. § 9541 et seq.1 Additionally, present counsel has filed in

this Court a motion to withdraw from representation and “no merit” letter,


____________________________________________


1
  On September 18, 2012, Riehl entered a guilty plea to aggravated assault,
burglary (two counts), robbery, criminal mischief, theft by unlawful taking,
and two counts of criminal attempt of theft. See 18 Pa.C.S. §§ 2702(a)(1),
3502(a), 3701(a)(1)(ii), 3304(a)(5), 3921(a), and 901(a), respectively. On
December 28, 2012, the trial court sentenced Reihl to an aggregate term of
imprisonment of 11½ to 30 years. Thereafter, neither a post-sentence
motion nor appeal was filed. Reihl filed this timely PCRA petition on
September 10, 2013. Present counsel was appointed and filed an amended
PCRA petition on behalf of Riehl.
J-S07033-15



pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and

Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). We

affirm and grant PCRA counsel’s motion to withdraw.

      The PCRA court concisely set forth the procedural history underlying

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

PCRA Court Opinion, 6/11/2014, at 1–3.

      Before addressing the issue identified in this appeal, we note that

counsel has substantially complied with the requirements of Turner/Finley

in requesting to withdraw as counsel. See Commonwealth v. Pitts, 981

A.2d 875, 876 n.1 (Pa. 2009) (setting forth the requirements that counsel

must fulfill before withdrawal on collateral appeal is permitted). Counsel has

included with the motion to withdraw his letter to Reihl notifying him of his

rights pursuant to Commonwealth v. Friend, 896 A.2d 607 (Pa. Super.

2006).   Furthermore, this Court, on September 16, 2014, issued an order

explaining that Riehl may respond pro se to the petition to withdraw, and

Riehl has not responded. We therefore proceed with our independent review

of the record and consider the sole issue identified in this appeal: whether

Riehl “was denied his right to effective assistance of counsel when his

counsel improperly and ineffectively advised him that he could do better

than the Commonwealth’s negotiated plea offer of not less than 3½ nor

more than 7 years.” See No Merit Letter, 9/12/2014, at 3.

      With respect to a PCRA court’s decision, the following principles guide

our review:

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J-S07033-15



        Our standard of review of the denial of a PCRA petition is
        limited to examining whether the court’s determination is
        supported by the evidence of record and free of legal
        error. This Court grants great deference to the findings of
        the PCRA court if the record contains any support for
        those findings. Further, the PCRA court’s credibility
        determinations are binding on this Court, where there is
        record support for those determinations.

     Commonwealth v. Anderson, 2010 PA Super 64, 995 A.2d
     1184, 1189 (Pa.Super. 2010) (citations omitted).

        To     prevail    on     a     claim    alleging    counsel’s
        ineffectiveness under      the    PCRA,     Appellant  must
        demonstrate (1) that the underlying claim is of arguable
        merit; (2) that counsel's course of conduct was without a
        reasonable basis designed to effectuate his client’s
        interest; and (3) that he was prejudiced by counsel’s
        ineffectiveness, i.e. there is a reasonable probability that
        but for the act or omission in question the outcome of the
        proceedings would have been different.

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

     Commonwealth v. Wah, 2012 PA Super 54, 42 A.3d 335, 338
     (Pa.Super. 2012) (citations, quotation, and quotation marks
     omitted). “[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.” Anderson, 995
     A.2d at 1192 (citations, quotation, and quotation marks
     omitted).

Commonwealth v. Willis, 68 A.3d 997, 1001–1002 (Pa. Super. 2013).


                                     -3-
J-S07033-15



       At the May 1, 2014, PCRA hearing, trial counsel testified that he did

not believe the Commonwealth ever made an offer of three and one-half to

seven years as a package deal.     N.T., 5/1/2014, at 4.   Trial counsel also

testified that under the sentencing guidelines, on the robbery charge, the

bottom of the standard range of would have been three and one-half years,

but he did not recall the Commonwealth ever making such an offer. Id. at

7–8.     Riehl testified that trial counsel represented to him that the

Commonwealth had made him an offer of three and one-half to seven years.

Id. at 23.    Riehl also testified that counsel advised him that he thought

Riehl might do better with an open plea. Id. at 25. Following the hearing,

and the filing of briefs by the parties, the PCRA court denied relief by order

of June 11, 2014.

       In the opinion accompanying the order, the PCRA court thoroughly

discussed (1) the applicable law attendant to ineffectiveness claims and the

entry of a guilty plea, (2) the record made at the guilty plea, and (3) the

testimony presented at the PCRA hearing.          See PCRA Court Opinion,

6/11/2014, at 3–6. The PCRA court determined that “[o]ther than testimony

by [Riehl], which was found not to be credible, there was no testimony to

support [Riehl’s] assertion that the Commonwealth made an offer of 3½–7

years and it is clear that [Riehl] was aware of his sentencing guidelines and

what his minimum and maximum sentences could be.” Id. Concomitantly,

the PCRA court found the testimony of trial counsel to be credible. Id. at 5.




                                    -4-
J-S07033-15



      In light of the conflicting testimony presented at the PCRA hearing, we

apply the following legal maxim. “The PCRA court’s credibility determinations

are binding on this Court, where the record supports those determinations.”

Commonwealth v. Widgins, 29 A.3d 816, 820 (Pa. Super. 2011) (citation

omitted).   See also Commonwealth v. Dennis, 17 A.3d 297, 305 (Pa.

2011) (appellate courts are required to give great deference to a PCRA

court’s credibility determinations and, if supported by the record, the

determinations are binding on a reviewing court). Here, the PCRA court’s

findings and credibility determinations are amply supported by the record,

and therefore we must accept them.

      As the record supports the PCRA court’s determinations, we agree with

counsel that Riehl’s claim lacks merit and the present appeal is frivolous.

Accordingly, we affirm the order of the PCRA court and grant counsel’s

application for leave to withdraw.

      Order affirmed. Application for leave to withdraw as counsel granted.

      The parties shall attach a copy of the court’s opinion in the event of

further proceedings.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/26/2015


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       IN THE COURT OF COMMON PLEAS OF LANCASTER COUNTY, PENNSYLVANIA
                                  CRIMINAL

     COlvIMONWEALTH OF PENNSYLVANIA

                    VS.
                                                                            o
                                                                  Nos. 4927-20 II

     LINFORD LEROY RIEHL                                          PCRA

                                                 OPINION
    BY: KNISELY, J.                                                                       June 11, 2014

            Before the COUlt is Defendant Linford Riehl's petition filed pursuant to the Post

    Conviction Relief Act ("PCRA,,).I In his petition, Defendant alleged that he was entitled to

    PCRA relief on the basis that trial counsel was ineffective during the guilty plea process for

    failing to advise Defendant to accept a guilty plea offer of 3 Yz to 7 years, rendering Defendant's

    guilty plea involuntary. The Court held a hearing on the matter on May I, 2014 and ordered

    briefs be filed by the pmties. Those briefs having been filed, the matter is now ripe for

    disposition.

                                            BACKGROUND

           On September 18, 2012, Defendant entered a guilty plea on Docket 4927-2011 to one

    count of Aggravated Assault/ two counts of Burglary,3 one count ofRobbery,4 one count of

Criminal Mischief,5 one count of Theft by Unlawful Taking,6 and two count of Criminal Attempt

of Theft. 7 During the guilty plea hearing, the Court asked Defendant ifhe had reviewed the

guilty plea colloquy with his counsel and if he had voluntarily signed the guilty plea colloquy

and the guilty plea slip; Defendant answered affirmatively. (N. T. Guilty Plea, 9/1811?; p.          ~)o
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I 42 Pa.C.S.A. §§ 9541-9546.                                                                ::u
2 18 P.S. §2702(a)(i).
3 18 Pa.C.S.A. §3502(a).                                                                    "c::
                                                                                            C)       ~:
418 P.S. §3701(a)(l)(ii).
, 18 P.S. §3304(a)(5).                                                                      ·-1       ..
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618 Pa.C.S. §3921(a).
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7 18 Pa. C.S. §901(a).                                                                      ;-:.
                                                                                  Circulated 02/06/2015 10:55 AM




 The Court also reviewed Defendant's right to a jury trial and asked whether Defendant had

 discussed the facts of the case and possible defenses with his attomey; Defendant responded that

 they had done so. ld at 7. The guilty plea colloquy and guilty plea slip were submitted to the

 Court and the COUli accepted Defendant's plea. kl at 14. A pre-sentence investigation repOli

 was ordered. ld On December 28, 2012, Defendant was sentenced to 2-5 years on the

 aggravated assault, 3V,-1O years on the burglary, 4V,-1 0 years on the robbery, and 1V,-5 years on

 the second burglary count. These sentences were to nm consecutively to each other. Defendant

 did not file any appeals or challenge his guilty plea until he filed his pro se PCRA petition.

         Defendant timely filed his PCRA petition on September 10,2013 and present counsel

 was appointed. Counsel filed an Amended PCRA alleging that trial counsel was ineffective

 during the guilty plea process for failing to advise Defendant to accept a plea offer of 3 V, to 7

years.

         An evidentiary hearing was held on May I, 2014. At the hearing, the defense presented

two witnesses, trial counsel Cory Miller and Defendant. Attomey Miller testified that the

Commonwealth never made an offer of3V, to 7 years. (N.T. PCRA Hearing, 511114, p. 4, 8).

Attorney Miller testified that no information regarding a plea offer of 3 V, to 7 years was ever

given to Defendant. ld. at 14. Attomey Miller testified that he and Defendant had discussed

applying for Veterans' COUli and on numerous occasions discussed the opportunity for a trial

versus a plea. ld at 4-6. Attorney Miller fuliher testified that he discussed the sentencing

guidelines with Defendant, reviewed in detail the colloquy for the plea with possible maximums,

and fully reviewed the pre-sentence investigation with Defendant. ld at 10-13, 20-21. Attorney

Miller also testified that it was very important to him to explain the sentencing guidelines count

by count to ensure that Defendant's prior record score and the guidelines were as low as

possible. ld at 11-12.
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         Defendant testified that Attorney Miller told him the Commonwealth was offering a plea

 agreement 00 Y2 to 7 years, but that Attorney Miller failed to advise Defendant that such an offer

 was the best offer he could hope to receive. Id. at 23. Defendant testified that Attorney Miller

 told Defendant that they might do better in an open plea. Id. at 25. On cross-examination,

. Defendant testified that Attorney Miller never promised that Defendant would get a sentence

 better that 3Y2 years. Jd. at 27. Defendant testified that he signed the sentencing guideline

 worksheets and plea agreement. Id. at 30-32. He testified that he reviewed the 7 page guilty

 plea colloquy for mere minutes with Attorney Miller in the holding cell prior to his guilty plea.

 Id. Defendant also testified that he reviewed the pre-sentence investigation repOli with Attorney

 Miller in the visitation room at the Lancaster County Prison prior to his plea. Id. at 37.

                                            DISCUSSION

        Defendant's claim challenges the effectiveness of his trial counsel such that it caused him

to enter a plea that creates a manifest i1Uustice. It is well-established that counsel is presumed

effective. Stricklandv. Washington, 466 U.S. 668, 689,104 S.C!. 2052, 2065 (1984). A PCRA

petitioner bears the burden of rebutting that presumption by demonstrating that counsel's

performance was deficient and that such deficiency prejudiced him. Id. The Pelmsylvania

Supreme Court divided the Strickland standard into three prongs, two prongs for deficient

performance and one prong for prejudice. Com. v. Koehler, 36 A.3d 121, 132 (pa. 2012) (citing

Com. v. Pierce, 515 Pa. 153,527 A.2d 973, 975 (1987». The resulting three prongs to prove

counsel ineffective are: (1) the underlying claim has arguable merit; (2) counsel's actions lacked

an objective reasonable basis; and (3) the defendant was prejudiced by counsel's act or omission.

ld. Counsel will not be deemed ineffective if any reasonable basis exists for his actions, and,

even if counsel had no reasonable basis for his actions, a defendant is not entitled to relief if he



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 fails to demonstrate prejudice. Com. v. Diehl, 61 A.3d 265, 268 (Pa. Super. 2013)(citing Com v.

 Carter

          In claims of counsel's ineffectiveness in connection with a guilty plea, such a claim will

 provide a basis for relief only:

          if the ineffectiveness caused an involuntary or unknowing plea. This is similar to
          the 'manifest injustice' standard applicable to all post-sentence attempts to
          withdraw a guilty plea. The law does not require that the appellant be pleased with
          the outcome of his decision to enter a plea of guilty. All that must be shoml is that
          the appellant's decision to plead guilty be knowing, voluntary and intelligently
          made.

          Com. v. Diaz, 913 A.2d 871, 872 (Pa. Super. 2006)(citing Com. v. Lewis, 708 A.2d 497,

 500-01 (Pa. Super. 1998)

          The Pennsylvania Rules of Criminal Procedure mandate that a guilty plea be offered in

open cOUli, and advise that the trial court should inquire into at least six areas in order to show

that the plea was voluntarily, knowingly, and intelligently entered. Pa.R.Crim.P. 590. Those six

areas include: (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?; (3) Does the defendant understand that

he has the right to trial by jury?; (4) Does the defendant understand that he is presumed imlocent

until he is found guilty?; (5) Is the defendant aware of the pemlissible range of sentences and/or

fines for the offenses 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.

Additionally, a defendant is bound by the statements he makes during his guilty plea colloquy

and may not asseli grounds for withdrawing the plea that contradict statements made when he

pled. Com. v. McCauley, 797 A.2d 920, 922 (Pa. Super. 2001).

       In the instant case, Defendant's testimony at the guilty plea and at the PCRA hearing

indicate the plea was voluntarily, knowingly, and intelligently entered. At the guilty plea,


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 Defendant told the Court that he reviewed the guilty plea colloquy form with his attomey. (N.T.

 Guilty Plea, 9/18/12, p. 5). The COUli also reviewed the charges Defendant was facing and

 Defendant told the Court he reviewed the guilty plea slip that listed the offenses to which he was

 pleading guilty. ld. at 3, 5. The Commonwealth provided the factual basis for the plea, with

 which Defendant agreed. ld. at 8-9. The COUli specifically questioned Defendant on his

 understanding of his right to a jury trial, the jury trial process, the right to selecting a jury, the

 Commonwealth's burden to prove each element beyond a reasonable doubt, and the necessity of

 a unanimous jury verdict; Defendant indicated that he understood all these rights. ld. at 6. He

 specifically indicated that he was entering a guilty plea as opposed to going to trial because "I

 don't want [the victim] to live, re-go through any memory of it. 1 already damaged her. She is

 an elderly woman who, 1 believe, she is 70. That's just not right." ld. at 10. Furthermore, he

added, "I feel this is probably the best way to deal with it, so it doesn't involve people who don't

need to relive this. 1 can bring in character witnesses here that doesn't really ... that doesn't

change who 1 am, but just - 1 want to get it over with," and "I know these people." ld. at 12.

The Court reviewed all the charges faced by Defendant, including the maximum penalties for

incarceration and fines. ld. at 3. The COUli also explained to Defendant that there was

mandatory minimum sentence of two years associated with one of the charges. ld. at 4-5.

Finally, the Court reminded Defendant that he was entering an open plea and asked whether any

promises had been made to him about the sentence he would receive; Defendant responded no.

ld. at 8. Attomey Miller conveyed to the COUli that he believed Defendant was entering a

voluntary, knowing, and intelligent plea, and the Court accepted the plea. ld. at 12, 14.

       At the PCRA hearing, the Court found the testimony of trial counsel to be credible. Trial

counsel testified that he could not recall the Commonwealth ever making an offer of 3\1,-7 years

as a package deal. (N.T. PCRA, 5/1/14, p. 4.) Trial counsel also testified that he and Defendant
                                                    5
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 would have gone through each and every charge to ensure that the prior record score was as low

 as possible. Id at 11. Trial counsel also testified that on the robbery charge, the bottom of the

standard range would have been 3 Yz years, but that he did not recall the Commonwealth ever

making such an offer. . Id at 7-8. Ultimately, it was Defendant's choice to enter an open guilty

plea. All the testimony indicated that Defendant reviewed and signed the sentencing guidelines

sheet and that when he was asked by the Court if he understood the sentencing guidelines, he

answered affirmatively. Other than testimony by Defendant, which was not found to be credible,

there was no testimony to SUppOit Defendant's assettion that the Commonwealth made an offer

of 3 Yz-7 years and it is clear that Defendant was aware of his sentencing guidelines and what his

minimum and maximum sentences could be. During his guilty plea, Defendant represented to

the COUlt that he reviewed and understood the sentencing guidelines. He may not now claim the

opposite. He understood there was no plea agreement and that no promises were made to him

regarding sentence.

       Because Defendant has failed to demonstrate that his claim has arguable merit, trial

counsel will not be deemed ineffective. Com. v. Loner, 836 A.2d 125, 133 (Pa. Super.

2003)(citing   COlli.   v. Douglas, 645 A.2d 226, 23I-2)(Pa. 1994».

       Therefore, the COUlt enters the following:




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    IN THE COURT OF COMMON PLEAS OF LANCASTER COUNTY, PENNSYLVANIA
                               CRIMINAL

 COlvlMONWEALTH OF            PEj\n~SYL VANIA


                  VS.                                            Nos. 4927-2011

 LINFORD LEROY RIEHL                                             PCRA


                                                ORDER
                        .     .{'I\
          AND NOW, this ~ day of June, 2014, having considered Defendant's petition filed

 pursuant to the Post Conviction Relief Act! on September 10, 2013, the arguments of counsel,

 and the evidence presented at the hearing in this matter on May 1,2014, Defendant's petition is

 hereby DENIED.

          Defendant is hereby advised of his right to appeal tllis decision witllin thirty (30) days

fi'om the date of entry of this Order by the Lancaster County Clerk of COlllis Office. Defense

counsel is directed to timely provide tllis Order and notice to Defendant.




                                                        BY THE COURT:



                                                        tJI~;r
                                                        HmA
                                                        JUDGE
                                                                    ~KNSELY

Attest:

Copies to:       Vincent Quinn, Esq.,-134 7 Fruitville Pike, Lancaster, PA 1760 I
                 Todd Kriner, Assistant District Attorney




142 Pa.C.S.A. §§ 9541-9546.
