J. S30025/16


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :     IN THE SUPERIOR COURT OF
                                         :           PENNSYLVANIA
                    v.                   :
                                         :
DEMETRIOUS WASHINGTON,                   :         No. 2291 EDA 2015
                                         :
                           Appellant     :


                  Appeal from the PCRA Order, June 29,2015,
             in the Court of Common Pleas of Montgomery County
               Criminal Division at No. CP-46-CR-0005675-2013


BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., AND JENKINS, J.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                    FILED MAY 11, 2016

        Demetrious Washington appeals from the June 29, 2015 order of the

Court of Common Pleas of Montgomery County dismissing his first petition

filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A.

§§ 9541-9546, without a hearing. We affirm.

        The PCRA court provided the following factual and procedural history:

                    [Appellant] pleaded guilty on January 28,
             2014, to four counts of robbery,[1] graded as
             felonies of the first degree.     He admitted that
             between May 28, 2013, and July 10, 2013, he
             participated in four bank robberies in Montgomery
             County using a fake gun that placed four bank
             employees in fear of serious bodily injury.      He
             received an agreed-upon sentence of six-and-one-
             half to seventeen years in prison on each count, set
             to run concurrent to each other.


1
    18 Pa.C.S.A. § 3701.
J. S30025/16


                 [Appellant] did not file a post-sentence motion
           or a direct appeal. His judgment of sentence, thus,
           became final on or about February 28, 2014.

                 On December 26, 2014, [appellant] filed a
           pro se petition under the Post Conviction Relief Act.
           He claimed that plea counsel[2] was ineffective for
           allegedly leading him to believe that his concurrent
           sentences in this case would be run concurrently to a
           sentence in Lycoming County.       No mention was
           made at the guilty plea hearing of a Lycoming
           County sentence and the aggregate sentence
           imposed here was not run concurrently to any
           out-of-county sentence.

                  This court appointed Francis M. Walsh,
           Esquire[,] (“PCRA counsel”) to represent [appellant].
           On April 22, 2015, PCRA counsel filed an amended
           petition on behalf of [appellant], asserting that plea
           counsel had been ineffective for failing to advise
           [appellant] on the record at the guilty plea hearing of
           the elements of the robbery offenses to which he
           was pleading guilty and the maximum penalties
           [appellant] faced.       On May 13, 2015, the
           Commonwealth filed an answer and motion to
           dismiss the PCRA petition.

                 After reviewing the amended petition, the
           Commonwealth’s response and the record, this court
           issued a notice of intent to dismiss without a
           hearing.      [Appellant], through PCRA counsel,
           responded to the notice.       After reviewing the
           arguments contained in [appellant’s] response, and
           concluding they did not compel a different
           conclusion, this court entered a final order of
           dismissal. [Appellant], through PCRA counsel, filed a
           notice of appeal and subsequently complied with this
           court’s directive to produce a concise statement of
           errors in accordance with Pennsylvania Rule of
           Appellate Procedure 1925(b).


2
  Assistant Public Defender Keith A. Harbison represented appellant at the
guilty plea and sentencing hearing.


                                    -2-
J. S30025/16


PCRA court opinion, 9/16/15 at 1-2 (footnote omitted).

      Appellant raises the following issue for our review:

            Did the trial court err in dismissing the amended
            Post-Conviction Relief Act petition without a hearing
            where appellant’s amended Post-Conviction Relief
            Act petition established arguable merit that
            appellant’s trial counsel was ineffective because the
            appellant’s plea was unintelligible, and involuntary
            since neither the elements of the offense of a felony
            one robbery, nor the maximum penalties were
            placed on the record during the oral colloquy nor
            were they contained in the written colloquy that was
            submitted at the time of the guilty plea?

Appellant’s brief at 3 (capitalization omitted).

      PCRA petitions invoking ineffective assistance of counsel during guilty

plea proceedings are subject to the following standard of review:

            “On appeal from the denial of PCRA relief, our
            standard of review is whether the findings of the
            PCRA court are supported by the record and free of
            legal error.” Commonwealth v. Abu-Jamal, 574
            Pa. 724, 731, 833 A.2d 719, 723 (2003). We review
            allegations of counsel’s ineffectiveness in connection
            with a guilty plea under the following standards:

                  The       standard    for   post-sentence
                  withdrawal of guilty pleas dovetails with
                  the          arguable      merit/prejudice
                  requirements for relief based on a claim
                  of ineffective assistance of plea counsel,
                  see generally Commonwealth v.
                  Kimball, 555 Pa. 299, 312, 724 A.2d
                  326, 333 (1999), under which 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. See,
                  e.g., [Commonwealth v.] Allen, 557


                                      -3-
J. S30025/16


                Pa. [135,] 144, 732 A.2d [582,] 587
                [(1999)] (“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.”). . . .

          Commonwealth v. Flanagan, 578 Pa. 587, 608-
          09, 854 A.2d 489, 502 (2004). This standard is
          equivalent to the “manifest injustice” standard
          applicable to all post-sentence motions to withdraw a
          guilty plea. Commonwealth v. Watson, 835 A.2d
          786 (Pa.Super. 2003). Furthermore,

                [T]he      constitutional    ineffectiveness
                standard requires the defendant to rebut
                the     presumption       of    professional
                competence by demonstrating that:
                (1) his underlying claim is of arguable
                merit; (2) the particular course of
                conduct pursued by counsel did not have
                some reasonable basis designed to
                effectuate his interests; and (3) but for
                counsel’s ineffectiveness, there is a
                reasonable probability that the outcome
                of the proceedings would have been
                different.          Commonwealth          v.
                (Michael) Pierce, 567 Pa. 186, 786
                A.2d 203, 213 (2001); Commonwealth
                v. Kimball, 555 Pa. 299, 724 A.2d 326,
                333 (1999).       A failure to satisfy any
                prong of the test for ineffectiveness will
                require rejection of the claim.

          Commonwealth v. Gribble, 580 Pa. 647, 657, 863
          A.2d 455, 460 (2004).

Commonwealth v. Morrison, 878 A.2d 102, 104-105 (Pa.Super. 2005)

(en banc), appeal denied, 887 A.2d 1241 (Pa. 2005).




                                    -4-
J. S30025/16


      Specifically, appellant avers that the written and oral colloquies did not

“describe the nature of the charge of robbery nor do they explain the

maximum sentences that [appellant] could have received for four (4)

robberies.” (Appellant’s brief at 11.) We first address whether appellant’s

claim has arguable merit pursuant to the first prong under Pierce. In order

to do so, we must determine whether appellant established that a manifest

injustice has taken place.

      We find Commonwealth v. Barbosa, 819 A.2d 81 (Pa.Super. 2003),

to be instructive because the instant case, like Barbosa, involves a

negotiated plea agreement with regards to sentencing. (Notes of testimony,

1/28/14 at 12; appellant’s brief at 4.) The Barbosa court held,

            that if a defendant who entered a negotiated guilty
            plea was either misinformed or not informed as to
            the maximum possible sentence he could receive if
            he went to trial, and the misinformation or lack
            of information was material to his decision to
            accept the negotiated plea, then manifest
            injustice is established and the plea may be
            withdrawn.

Id. at 82 (emphasis added). The court also held that a failure to notify a

defendant of the possible maximum sentence in a negotiated plea

agreement case would only be considered grounds to withdraw the plea if

the defendant’s lack of knowledge as to the maximum sentence played a

material role in the defendant’s decision to accept the plea. Id. at 86.




                                     -5-
J. S30025/16


     The record reflects appellant had knowledge of the maximum

sentences associated with each count, as demonstrated by the following

colloquy:

            [BY THE COURT:]

            Q:   Okay. Has your attorney explained to you
                 each and every element of the crimes you are
                 pleading guilty to today, sir?

            A:   Yes.

            Q:   Okay. And I think you are pleading guilty, as I
                 understand, to Counts 9, 10, 11 and 12, is that
                 correct, of this Bill of Information?

            [DEFENSE COUNSEL]: Yes.

            THE COURT: Okay. And they are all robbery in fear
            of serious bodily injury, each one?

            [DEFENSE COUNSEL]: Correct.

            THE DEFENDANT: Yes.

            BY THE COURT:

            Q:   And they are all felonies of the first degree?

            A:   Yes.

            Q:   Did your counsel explain to you the maximum
                 period of incarceration and/or fines you are
                 exposed to on each one of those counts?

            A:   Yes.

            Q:   And did he explain to you each of the elements
                 that the Commonwealth would have to prove
                 beyond a reasonable doubt before you could
                 be convicted?



                                    -6-
J. S30025/16


            A:      Yes.

            Q:      Knowing that, do you still wish to plead guilty?

            A:      Yes.

Notes of testimony, 1/28/14 at 7-8.

      We,   therefore,       find   that   the   record    belies   appellant’s    claim.

Additionally,    appellant    never    avers     that   Attorney    Harbison’s    alleged

off-the-record recitation as to the maximum sentences appellant faced

played a material role in his decision to accept the guilty plea, nor does

appellant allege that Attorney Harbison’s alleged off-the-record recitation

was either incorrect or would have constituted an illegal sentence, therefore,

the claim lacks arguable merit.

      We now turn to appellant’s averment that he was not properly advised

of the elements of robbery. (See appellant’s brief at 9.) In Morrison, we

stated:

            Our Supreme Court has repeatedly stressed that
            where the totality of the circumstances establishes
            that a defendant was aware of the nature of the
            charges, the plea court’s failure to delineate the
            elements of the crimes at the oral colloquy, standing
            alone, will not invalidate an otherwise knowing and
            voluntary guilty plea. Commonwealth v. Schultz,
            505    Pa.    188,     477   A.2d    1328     (1984);
            Commonwealth v. Martinez, 499 Pa. 417, 453
            A.2d 940 (1982); Commonwealth v. Shaffer, 498
            Pa. 342, 446 A.2d 591 (1982). “Whether notice [of
            the nature of the charges] has been adequately
            imparted may be determined from the totality of the
            circumstances     attendant    upon     the   plea[.]”
            Martinez, supra at 420, 453 A.2d at 942.



                                           -7-
J. S30025/16


           In Schultz, the Supreme Court refused to invalidate
           a guilty plea to robbery and reckless endangerment
           and concluded that the defendant was aware of the
           nature of the charges, despite the fact that the
           defendant was not told that theft was an element of
           robbery and even though the defendant had not
           successfully completed his armed robbery.        The
           defendant’s awareness was premised upon the
           evidence against him outlined at the time of the oral
           colloquy.

           In Martinez, the defendant pled guilty to third
           degree murder and robbery, and the record
           established that “no recitation of the elements of the
           crimes” or even the intent aspect of third degree
           murder was made during the oral colloquy. Id. at
           419, 453 A.2d at 942. Since the circumstances
           surrounding the plea established that it was
           voluntary and knowing and that the defendant was
           aware of the nature of the charges based on the
           extensive evidence of actual guilt presented at the
           oral colloquy, our Supreme Court stated that it did
           “not deem this oversight to be fatal . . . .” Id. It
           held, “In a case where ample, competent evidence in
           support of a guilty plea is made a matter of record,
           allegations of manifest injustice arising from the
           guilty plea must go beyond a mere claim of lack of
           technical recitation of the legal elements of the
           crimes.” Id. at 422, 453 A.2d at 943. Similarly, in
           Shaffer, the Court charged the defendant with
           knowledge of the nature of the offenses despite the
           lack of review of the elements of the offenses to
           which he pled guilty because the plea was tendered
           after the Commonwealth had entered its evidence at
           trial.

Morrison, 878 A.2d at 107-108.

     Here, we likewise find that despite the failure to outline the elements

of robbery on the record, the record demonstrates that appellant knowingly,

intelligently, and voluntarily entered into the guilty plea agreement. In the



                                    -8-
J. S30025/16


written colloquy, appellant indicated that Attorney Harbison explained “all

the things that a person must have done to be guilty” of robbery. (Written

colloquy   at   3.)     Appellant   also   acknowledged   on   the   record   that

Attorney Harbison “explained to [him] each and every element of the

crimes” to which he pled guilty.           (Notes of testimony, 1/28/14 at 7.)

Moreover, the Commonwealth conducted a recitation of the facts on the

record to which appellant admitted as part of his guilty plea.       (See id. at

10-11.) We, therefore, find that based on a totality of the circumstances,

appellant entered into a knowing, intelligent, and voluntary guilty plea, and

his claim under the PCRA has no arguable merit.3

      Order affirmed.

Judgment Entered.




JosephD.Seletyn,Esq.
Prothonotary

Date: 5/11/2016




3
 We note that in his brief, appellant only attempts to satisfy the first Pierce
prong and then requests a hearing “to see if [he] can prove all three (3)
prongs of his ineffectiveness claim.” (Appellant’s brief at 11.) In order to be
granted relief for ineffective assistance of counsel pursuant to the PCRA,
appellant is required to satisfy all three prongs. Where a petitioner fails to
satisfy each prong, the claim will be rejected. See Gribble, supra at 460.


                                       -9-
