J-S12031-16


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,             :     IN THE SUPERIOR COURT OF
                                          :           PENNSYLVANIA
                 Appellee                 :
                                          :
                    v.                    :
                                          :
JAVIER ORTIZ,                             :
                                          :
                 Appellant                :     No. 2731 EDA 2015

                Appeal from the PCRA Order August 21, 2015
               in the Court of Common Pleas of Lehigh County
            Criminal Division at No(s): CP-39-CR-0001989-2012

BEFORE:     MUNDY, OLSON, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:           FILED MARCH 09, 2016

      Javier Ortiz (Appellant) appeals from the August 21, 2015 order that

denied his petition filed pursuant to the Post Conviction Relief Act (PCRA), 42

Pa.C.S. §§ 9541-9546. We affirm.

      On March 12, 2012, agents from the Bureau of Narcotics Investigation

of the Office of the Attorney General conducted a controlled purchase of one

ounce of crystal methamphetamine from Appellant at his home. Execution

of a search warrant at the residence revealed the buy money from the

controlled purchase, as well as an additional 419 grams of crystal

methamphetamine.         Appellant subsequently gave a statement to agents

from the Attorney General’s office, admitting involvement in a corrupt

organization for the supply of crystal methamphetamine.




*Retired Senior Judge assigned to the Superior Court.
J-S12031-16


     On January 4, 2013, Appellant entered a negotiated guilty plea to

possession with intent to deliver (PWID) and corrupt organizations, and was

sentenced to the agreed-upon aggregate term of six to twenty years of

imprisonment.   Appellant’s subsequent post-sentence motion was denied.

On September 2, 2013, this Court certified the discontinuance of the direct

appeal that followed, based upon the filing of a praecipe to discontinue by

Appellant.

     Appellant pro se filed a PCRA petition on February 23, 2014.        The

PCRA court appointed counsel, who filed an amended petition alleging three

instances of ineffective assistance of plea counsel. Following a hearing, the

PCRA court denied Appellant’s petition by order of August 25, 2015.

Appellant timely filed a notice of appeal. Both Appellant and the PCRA court

complied with Pa.R.A.P. 1925.

      “Our standard of review of a trial court order granting or denying

relief under the PCRA calls upon us to determine ‘whether the determination

of the PCRA court is supported by the evidence of record and is free of legal

error.’” Commonwealth v. Barndt, 74 A.3d 185, 192 (Pa. Super. 2013)

(quoting Commonwealth v. Garcia, 23 A.3d 1059, 1061 (Pa. Super.

2011)).

     On appeal, Appellant claims that the PCRA court erred in denying his

PCRA petition because plea counsel’s ineffectiveness resulted in his entering




                                    -2-
J-S12031-16


an unknowing and involuntary plea. Specifically, Appellant claims that plea

counsel’s performance was constitutionally deficient in failing (1) to relay to

the prosecution Appellant’s acceptance of a plea deal for a four-to-eight-year

sentence; and (2) to pursue a motion to suppress Appellant’s confession as

involuntary. Appellant’s Brief at 4.

      We begin by noting that counsel is presumed to be effective.

Commonwealth v. Simpson, 112 A.3d 1194, 1197 (Pa. 2015). To prevail

on a claim of ineffective assistance of counsel, a PCRA petitioner must prove

each of the following: “(1) the underlying legal claim was of arguable merit;

(2) counsel had no reasonable strategic basis for his action or inaction; and

(3) the petitioner was prejudiced—that is, but for counsel’s deficient

stewardship, there is a reasonable likelihood the outcome of the proceedings

would have been different.” Id.

      Allegations 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. Moser, 921 A.2d 526, 531 (Pa. Super. 2007) (internal

quotations and citations omitted).       “Thus, to establish prejudice, the

defendant must show that there is a reasonable probability that, but for

counsel’s errors, he would not have pleaded guilty and would have insisted




                                       -3-
J-S12031-16


on going to trial.”   Commonwealth v. Barndt, 74 A.3d 185, 192 (Pa.

Super. 2013) (citation and internal quotation marks omitted).

      Appellant first argues that he wished to accept a plea deal for a four-

year minimum sentence, but his plea counsel “went on vacation and failed to

notify the district attorney’s office that [Appellant] agreed to the plea.”

Appellant’s Brief at 7 (unnecessary capitalization omitted).

      At the PCRA hearing, Appellant testified that plea counsel informed

Appellant of an offer of a four-year minimum sentence, and that he told plea

counsel that he would agree to it, but plea counsel went on vacation and,

when he came back, said that the deal was off.        N.T., 8/18/2015, at 7-8.

Plea counsel, on the other hand, testified that no one ever made an offer

lower than the six-year minimum which Appellant ultimately accepted. Id.

at 27-28.

      The PCRA court accepted plea counsel’s testimony and found that

Appellant’s testimony was not credible. PCRA Court Opinion, 8/25/2015, at

6. Because the PCRA court’s credibility determinations are supported by the

record, we may not disturb them on appeal. Commonwealth v. Marinez,

777 A.2d 1121, 1124 (Pa. Super. 2001). Accordingly, Appellant’s first claim

merits no relief from this Court.

      Appellant’s remaining argument is that his plea to the charge of

corrupt   organizations   was   induced   by   his   unsuppressed   involuntary




                                     -4-
J-S12031-16


confession. Appellant claims that, when he made an inculpatory statement

to police, he was “high on drugs” and was threatened with the removal of his

children.    Although he informed plea counsel of the circumstances of his

confession, Appellant claims that counsel, without good reason, told him “he

could do nothing about it.” Appellant’s Brief at 8.

         At the PCRA hearing, plea counsel testified that, when he represented

Appellant prior to the plea, Appellant had been cooperating with the Attorney

General’s office. N.T., 8/18/2015, at 24. Plea counsel sought to further that

cooperation in the hopes that they “could reach an agreement for a lesser

period of incarceration.” Id. Although Appellant informed plea counsel that

someone had said something along the lines of “we’re going to take your

kids,” Appellant also indicated to plea counsel that he had not felt

threatened in any way at the meeting at which he gave his initial statement.

Id. at 26-27. Counsel determined that it was best to continue to cooperate,

rather than to file a suppression motion and “fight and cooperate at the

same time.” Id. at 27. By having Appellant’s statement in the record, plea

counsel would be able to “argue to the judge that, look, he was cooperating

from day one.” Id. Ultimately, although the prosecution had been adamant

that it would go no lower than an eight-year minimum, it offered, and the

trial court accepted, a minimum sentence of six years of imprisonment. Id.

at 25.




                                      -5-
J-S12031-16


     The PCRA court held that counsel’s determination that pursuing

continued cooperation was a better strategy that seeking to suppress his

initial statement was within counsel’s “broad discretion to determine tactics

and strategies,” and was “reasonably based to effectuate [Appellant’s]

interests.” PCRA Court Opinion, 8/25/2015, at 5 (citing Commonwealth v.

Fowler, 670 A.2d 152 (Pa. Super. 1996)). Because the PCRA court’s ruling

is supported by the record and is free from legal error, no relief from this

Court is warranted.    See Commonwealth v. Moore, 468 A.2d 791, 794

(Pa. Super. 1983) (holding counsel’s decision not to pursue a suppression

motion “clearly had some reasonable basis designed to effectuate appellant’s

interests” where counsel testified that likelihood of success on the motion

was not good and he obtained a plea agreement with favorable terms).

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary



Date: 3/9/2016




                                    -6-
