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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :    IN THE SUPERIOR COURT OF
                                         :          PENNSYLVANIA
                   v.                    :
                                         :
ISAAC JONES,                             :         No. 486 WDA 2017
                                         :
                        Appellant        :


                  Appeal from the PCRA Order, March 1, 2017
              in the Court of Common Pleas of Allegheny County
               Criminal Division at No. CP-02-CR-0002961-2012


BEFORE: BOWES, J., SOLANO, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:            FILED NOVEMBER 13, 2017

      Isaac Jones appeals from the March 1, 2017 order entered in the Court

of Common Pleas of Allegheny County that dismissed his petition filed

pursuant to the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546

(“PCRA”). We affirm.

      The facts giving rise to appellant’s convictions stem from appellant’s

shooting of the victim, Jaymah Hartage. The record reflects that appellant

entered open guilty pleas in connection with that shooting to all elements of

the following crimes, with the exception of the element of serious bodily

injury:   criminal attempt (murder); robbery (inflicts serious bodily injury);

aggravated assault (attempts to cause serious bodily injury); and firearms
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not to be carried without a license.1 Following entry of his guilty pleas, the

trial court reviewed Mr. Hartage’s medical records and determined that he

suffered serious bodily injury, which raised the maximum sentence that

appellant could have received on the criminal attempt conviction to 40 years

of imprisonment. (Notes of testimony, 10/16/12 at 12-14.) Subsequently,

however, the trial court sentenced appellant to 9 to 18 years of

imprisonment on the criminal attempt conviction, together with a concurrent

term of imprisonment of 2 to 4 years on the firearms violation.          The trial

court imposed no further penalty on the remaining convictions.

        The record reflects that appellant did not file a direct appeal, but filed

a pro se PCRA petition on December 9, 2013.            The trial court appointed

PCRA counsel, and PCRA counsel filed an amended petition. The trial court

conducted an evidentiary hearing on January 26, 2017.            By order dated

February 28, 2017, but docketed on March 1, 2017, the trial court denied

appellant’s PCRA petition.     On March 28, 2017, appellant filed a notice of

appeal to this court.     The trial court ordered appellant to file a concise

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).

Appellant timely complied.      The trial court then filed with this court the

memorandum that it filed at the time that it entered its March 1, 2017 order

denying appellant PCRA relief.

        Appellant raises the following issue for our review:


1   18 Pa.C.S.A. §§ 901(a), 3701(a)(1), 2702(a)(1), and 6106, respectively.


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               Was plea counsel ineffective in permitting Appellant
               to enter an unknowing plea where the plea was
               entered pursuant to a colloquy that failed to
               establish a factual basis for the plea?

Appellant’s brief at 3.

      In PCRA appeals, our scope of review “is limited to the findings of the

PCRA court and the evidence on the record of the PCRA court’s hearing,

viewed    in     the   light   most   favorable   to   the   prevailing   party.”

Commonwealth v. Sam, 952 A.2d 565, 573 (Pa. 2008) (internal quotation

omitted). Because most PCRA appeals involve questions of fact and law, we

employ a mixed standard of review.        Commonwealth v. Pitts, 981 A.2d

875, 878 (Pa. 2009).       We defer to the PCRA court’s factual findings and

credibility determinations supported by the record.          Commonwealth v.

Henkel, 90 A.3d 16, 20 (Pa.Super. 2014) (en banc).              In contrast, we

review the PCRA court’s legal conclusions de novo. Id.

      Appellant’s issue asserts ineffective assistance of plea counsel.

               In evaluating claims of ineffective assistance of
               counsel, we presume that counsel is effective.
               Commonwealth v. Rollins, 558 Pa. 532, 738 A.2d
               435, 441 (Pa. 1999).            To overcome this
               presumption, Appellant must establish three factors.
               First, that the underlying claim has arguable merit.
               See Commonwealth v. Travaglia, 541 Pa. 108,
               661 A.2d 352, 356 (Pa. 1995). Second, that counsel
               had no reasonable basis for his action or inaction.
               Id. In determining whether counsel’s action was
               reasonable, we do not question whether there were
               other more logical courses of action which counsel
               could have pursued; rather, we must examine
               whether counsel’s decisions had any reasonable
               basis.       See Rollins, 738 A.2d at 441;


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          Commonwealth v. (Charles) Pierce, 515 Pa. 153,
          527 A.2d 973, 975 (Pa. 1987). Finally, “Appellant
          must establish that he has been prejudiced by
          counsel’s ineffectiveness; in order to meet this
          burden, he must show that ‘but for the act or
          omission in question, the outcome of the proceedings
          would have been different.’” See Rollins, 738 A.2d
          at 441 (quoting Travaglia, 661 A.2d at 357). A
          claim of ineffectiveness may be denied by a showing
          that the petitioner’s evidence fails to meet any of
          these prongs.       Commonwealth v. (Michael)
          Pierce, 567 Pa. 186, 786 A.2d 203, 221-22 (Pa.
          2001); Commonwealth v. Basemore, 560 Pa. 258,
          744     A.2d    717,    738      n.23    (Pa.   2000);
          Commonwealth v. Albrecht, 554 Pa. 31, 720 A.2d
          693, 701 (Pa. 1998) (“If it is clear that Appellant has
          not demonstrated that counsel’s act or omission
          adversely affected the outcome of the proceedings,
          the claim may be dismissed on that basis alone and
          the court need not first determine whether the first
          and second prongs have been met.”).

Commonwealth v. Washington, 927 A.2d 586, 594 (Pa. 2007).

          A criminal defendant has the right to effective
          counsel during a plea process as well as during trial.
          The law does not require that appellant be pleased
          with the outcome of his decision to enter a plea of
          guilty.   Instead, the defendant must show that
          counsel’s deficient stewardship resulted in a manifest
          injustice, for example, by facilitating entry of an
          unknowing, involuntary, or unintelligent plea. The
          voluntariness of the plea depends on whether
          counsel’s advice was within the range of competence
          demanded of attorneys in criminal cases. Therefore,
          allegations of ineffectiveness in connection with the
          entry of a guilty plea will serve as a basis for relief
          only if the ineffectiveness caused appellant to enter
          an involuntary or unknowing plea.

          Our law is clear that, to be valid, a guilty plea must
          be knowingly, voluntarily and intelligently entered.
          There is no absolute right to withdraw a guilty plea,
          and the decision as to whether to allow a defendant


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          to do so is a matter within the sound discretion of
          the trial court. To withdraw a plea after sentencing,
          a defendant must make a showing of prejudice
          amounting to “manifest injustice.” A plea rises to
          the level of manifest injustice when it was entered
          into involuntarily, unknowingly, or unintelligently. A
          defendant’s disappointment in the sentence imposed
          does not constitute “manifest injustice.”

          In order to ensure a voluntary, knowing, and
          intelligent plea, trial courts are required to ask the
          following questions in the guilty plea colloquy:

          1)    Does the defendant understand the
                nature of the charges to which he or she
                is pleading guilty or nolo contendere?

          2)    Is there a factual basis for the plea?

          3)    Does the defendant understand that he
                or she has the right to a trial by jury?

          4)    Does the defendant understand that he
                or she is presumed innocent until found
                guilty?

          5)    Is   the    defendant    aware  of the
                permissible ranges 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?

          The guilty plea colloquy must affirmatively
          demonstrate that the defendant understood what the
          plea connoted and its consequences.          Once a
          defendant has entered a plea of guilty, it is
          presumed that he was aware of what he was doing,
          and the burden of proving involuntariness is upon
          him.   In determining whether a guilty plea was
          entered knowingly and voluntarily, a court is free to
          consider  the    totality of   the    circumstances


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              surrounding the plea. Furthermore, nothing in the
              rule precludes the supplementation of the oral
              colloquy by a written colloquy that is read,
              completed, and signed by the defendant and made a
              part of the plea proceedings.

Commonwealth v. Bedell, 954 A.2d 1209, 1212-1213 (Pa.Super. 2008)

(internal citations, brackets, ellipses, and quotation marks omitted).

      Here, appellant focuses on the trial court’s failure to provide a factual

description of the Commonwealth’s charges during the oral plea colloquy and

claims that such a defect is enough to warrant withdrawal of his guilty pleas.

In determining whether a defendant entered a knowing and voluntary plea,

however, we are free to consider the totality of the circumstances

surrounding that plea. Commonwealth v. Flanagan, 854 A.2d 489, 513

(Pa. 2004).

      In this case, the record demonstrates that appellant read, completed,

and signed an extensive written guilty plea form which the trial court

incorporated into the record at the guilty plea hearing.        (Docket #10,

appellant’s written and executed guilty plea -- explanation of defendant’s

rights, 10/16/12; notes of testimony, 10/16/12 at 10-11.)       On that form,

appellant affirmed, in writing, among other things, that (i) he discussed with

his attorney the factual basis of each charged offense; (ii) he admitted that

he committed the crimes and does not challenge or dispute the charges;

(iii) he discussed with his attorney the maximum possible sentences that the

trial court could impose; (iv) he understood that his plea must be voluntary



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and his rights must be voluntarily, knowingly, and intelligently waived;

(v) no one forced him to enter the plea and that he did so of his own free

will; (vi) no threats were made to him to enter his plea; (vii) no one,

including his attorney, promised him anything in exchange for the guilty

plea; (viii) he was satisfied with the legal advice and legal representation of

his attorney; (ix) his attorney went over the meaning of the terms of his

guilty plea; and (x) he understood his rights.      (Docket #10, appellant’s

written and executed guilty plea -- explanation of defendant’s rights,

10/16/12.)

      Additionally, during the on-the-record oral examination at the guilty

plea hearing, the following exchange occurred:

             THE COURT: Okay. Do you fully and completely
             understand what we’re doing?

             [APPELLANT]: Yes.

             ....

             THE COURT: All right. Sir, has anyone forced,
             threatened or coerced you in any way into making
             your guilty plea here today?

             [APPELLANT]: No, ma’am.

             THE COURT: And, sir, has anyone promised you
             anything in order to make this plea, with the
             exception  of  any   offer extended  by   the
             Commonwealth?

             [APPELLANT]: No, ma’am.

Notes of testimony, 10/16/12 at 7-8.



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      At that point, the trial court set forth the charges against appellant,

together with the maximum penalties that appellant faced.          (Id. at 8-9.)

Appellant acknowledged that he had discussed with his attorney and fully

and completely understood the nature and elements of each charge and the

maximum penalties associated with each charge.            (Id. at 9-10.)     The

following then took place:

            THE COURT: Sir, you’ve completed for me a Guilty
            Plea - Explanation of Defendant’s Rights form; is that
            correct?

            [APPELLANT]: Yes, ma’am.

            THE COURT: And, sir, did you complete this form
            with the advice, assistance and supervision of your
            attorney?

            [APPELLANT]: Yes, ma’am.

            THE COURT: And, sir, did you answer all of the
            questions in this form truthfully and honestly?

            [APPELLANT]: Yes, ma’am.

            THE COURT: It’s indicated by your signature, sir, on
            page 11 of this form that you’ve read and
            understood each question. Is that, in fact, true, sir?

            [APPELLANT]: Yes, ma’am.

Id. at 10-11.

      Following appellant’s acknowledgement of his signature on page 11 of

the written guilty plea colloquy, the trial court incorporated that plea into the

record. (Id. at 11.) Appellant then confirmed that he was pleading guilty to

the charges because he is, in fact, guilty. (Id.)


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        In viewing the totality of the circumstances surrounding appellant’s

guilty plea in the light most favorable to the Commonwealth, the record

demonstrates that appellant entered a voluntary, knowing, and intelligent

plea.     Consequently, appellant has failed to establish plea counsel’s

ineffectiveness.

        Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary




Date: 11/13/2017




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