J-S76037-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT
                                                              OF
                                                         PENNSYLVANIA
                             Appellee

                        v.

    LARRY HILL,

                             Appellant                 No. 3851 EDA 2016


                 Appeal from the PCRA Order November 14, 2016
              in the Court of Common Pleas of Philadelphia County
                Criminal Division at No.: CP-51-CR-0001816-2011


BEFORE: PANELLA, J., STABILE, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                          FILED FEBRUARY 23, 2018

        Appellant, Larry Hill, appeals from the order denying his first petition

filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-

9546, after a hearing. We affirm.

        On May 17, 2012, after the start of jury selection in his criminal trial,

Appellant pleaded guilty to three counts of attempted murder, one count of

criminal conspiracy, and one count of possessing an instrument of a crime.1

The charges related to Appellant’s shooting at three Philadelphia police

officers. In exchange for his plea, the Commonwealth agreed to nolle pros

the remaining charges, and recommend an aggregate sentence of not less


____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1   18 Pa.C.S.A. §§ 901(a), 903(a)(1), and 907(a), respectively.
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than ten nor more than twenty years of incarceration.           The trial court

sentenced Appellant to the agreed upon term of imprisonment. On May 24,

2012, Appellant filed a motion to withdraw his guilty plea, which the trial court

denied on June 14, 2012. Appellant did not file a direct appeal.

        On February 20, 2013, Appellant filed a pro se PCRA petition. The PCRA

court appointed counsel who filed an amended petition on January 21, 2016,

alleging that Appellant’s guilty plea was not valid because plea counsel

incorrectly advised him that he would be eligible for parole after having served

only seven years.2

        The PCRA court conducted an evidentiary hearing on November 14,

2016.     At the conclusion of the hearing, the court found that counsel had

rendered ineffective assistance when she failed to inform Appellant of the

denial of his motion to withdraw. However, the court found that Appellant’s

claim that counsel told him he only had to serve seven years to be incredible.

Thus, the court denied Appellant’s claim that counsel was ineffective and had

induced him to unknowingly plead guilty. Appellant timely appealed the PCRA

court’s denial of his claim that plea counsel rendered ineffective assistance

regarding the guilty plea.3




____________________________________________


2   Appellant filed a counseled second amended petition on October 5, 2016.

3 Pursuant to the PCRA court’s order, Appellant filed a statement of errors
complained of on appeal on January 4, 2017. The PCRA court entered its
opinion on June 28, 2017. See Pa.R.A.P. 1925.

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      Appellant raises one question on appeal: “Did the PCRA court err in

denying [his] request to withdraw his guilty plea?” (Appellant’s Brief, at 3)

(unnecessary capitalization omitted).

      Appellant argues that the PCRA court erred when it denied his petition

with respect to his claim of ineffective assistance of plea counsel. (See id. at

7-8). Specifically, he contends that counsel induced him to plead guilty by

telling him that he would only have to serve seven years of his ten-year

minimum sentence. (See id. at 8). Appellant’s issue does not merit relief.

             We review an order dismissing a petition under the PCRA in
      the light most favorable to the prevailing party at the PCRA level.
      This review is limited to the findings of the PCRA court and the
      evidence of record. We will not disturb a PCRA court’s ruling if it
      is supported by evidence of record and is free of legal error. This
      Court may affirm a PCRA court’s decision on any grounds if the
      record supports it. We grant great deference to the factual
      findings of the PCRA court and will not disturb those findings
      unless they have no support in the record. However, we afford no
      such deference to its legal conclusions. Further, where the
      petitioner raises questions of law, our standard of review is de
      novo and our scope of review is plenary.

Commonwealth v. Rykard, 55 A.3d 1177, 1183 (Pa. Super. 2012), appeal

denied, 64 A.3d 631 (Pa. 2013) (citation omitted).

      Here, Appellant claims that he is entitled to relief because of the

ineffectiveness of plea counsel.

             To be entitled to relief on an ineffectiveness claim, a PCRA
      petitioner must establish: (1) the underlying claim has arguable
      merit; (2) no reasonable basis existed for counsel’s action or
      failure to act; and (3) he suffered prejudice as a result of counsel’s
      error, with prejudice measured by whether there is a reasonable
      probability the result of the proceeding would have been different.
      [See] Commonwealth v. Chmiel, 612 Pa. 333, 30 A.3d 1111,


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     1127 (2011) (employing ineffective assistance of counsel test
     from Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973,
     975–76 (1987)). Counsel is presumed to have rendered effective
     assistance. . . .

Commonwealth v. Treiber, 121 A.3d 435, 445 (Pa. 2015) (one citation and

footnote omitted).

                  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.

           [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, 769-70 (Pa. Super. 2013)

(citations and quotation marks omitted).

     In the instant case, the PCRA court explained that:

           At the [evidentiary] hearing, [Appellant] testified that he
     had not wanted to accept the Commonwealth’s plea offer but did
     so after his attorney promised him (and his family) that he would
     only have to serve [seven] years of the [ten to twenty] year
     sentence. He admitted that his attorney did not explain why he
     would be permitted to serve below the minimum sentence, but
     was “guessing it was good time earned time.” [(N.T. PCRA
     Hearing, 11/14/16, at 26)]. Only when one of his cellmates told


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      him that he would have to serve more than [seven] years did
      [Appellant] decide to withdraw his guilty plea. . . .

            Plea counsel . . . testified that when presenting the
      Commonwealth’s offer, she never told [Appellant] or any family
      member that he could be released from custody in as few as
      [seven] years. Instead, her practice was to inform clients facing
      violent charges that “[g]enerally speaking, you can expect not to
      get paroled or you can be seriously considered for parole after you
      have done about [seventy-five] percent of your max time.” Id.
      at 47[.] Moreover, although she considered the Commonwealth’s
      offer a good one based upon [Appellant’s] sentencing exposure,
      she did not attempt to persuade him to accept it because she also
      thought he had a chance at establishing reasonable doubt at trial.

                                    *    *    *

            The [PCRA] court found [Appellant’s] testimony that his
      attorney had promised him he would be released after [seven]
      years incredible and denied his claim of ineffectiveness as to the
      entry of his guilty plea. . . .

(PCRA Court Opinion, 6/28/17, at 3-4) (some record citations omitted;

emphasis in original).

      The PCRA court found Appellant’s claim that plea counsel promised him

that he would be released after seven years incredible. (See id.). We are

bound   by   the   credibility   determinations   of   the   PCRA   court.   See

Commonwealth v. Santiago, 855 A.2d 682, 694 (Pa. 2004) (“[W]e are

bound by the PCRA court’s credibility determinations where there is record

support for those determinations.”) (citation omitted).        The PCRA court’s

finding is supported by the record and free of legal error. See Rykard, supra

at 1183. Thus, we conclude that Appellant has failed to demonstrate that plea

counsel’s ineffectiveness caused him to enter an unwilling or unknowing plea.

See Timchak, supra at 769-70. Appellant’s claim does not merit relief.

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     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/23/18




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