J-S05034-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

ROCCO LEO WING

                            Appellant               No. 1122 WDA 2014


                  Appeal from the Order Entered June 12, 2014
               In the Court of Common Pleas of Lawrence County
                Criminal Division at No: CP-37-CR-0000479-2009


BEFORE: DONOHUE, SHOGAN, and STABILE, JJ.

MEMORANDUM BY STABILE, J.:                           FILED APRIL 27, 2015

       Appellant, Rocco Leo Wing, appeals from the June 12, 2014 order

dismissing his petition pursuant to the Post Conviction Relief Act (“PCRA”),

42 Pa.C.S.A. §§ 9541-46. We affirm in part, vacate in part, and remand.

       On May 11, 2012, Appellant pled guilty to possession with intent to

deliver a controlled substance (“PWID”), manufacturing methamphetamine

in a structure where a child under the age of 18 is present, conspiracy,

recklessly endangering another person (“REAP”), and identity theft.1 On July

12, 2012, the trial court imposed an aggregate 8 to 16 years of

incarceration.     Appellant filed an untimely motion for modification of his

____________________________________________


1
  35 P.S. § 780-113(a)(30) and (38), 18 Pa.C.S.A. §§ 903, 2705, and 4120,
respectively.
J-S05034-15


sentence on August 10, 2012. The trial court denied that motion on August

16, 2012.

        On July 17, 2013, Appellant filed a timely first pro se PCRA petition.

The PCRA court appointed counsel on July 23, 2012.           The PCRA court

conducted a hearing on March 24, 2014, at which Appellant and Appellant’s

plea counsel testified. On June 12, 2014, the trial court entered the order

on appeal granting Appellant partial credit for time served but otherwise

denying collateral relief. This timely appeal followed.

        We review an order denying collateral relief to determine whether the

record supports the PCRA court’s findings and whether the court’s ruling was

free of legal error.   Commonwealth v. Timchak, 69 A.3d 765, 769 (Pa.

Super. 2013).     “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.” Id.

        Appellant argues the PCRA court erred in not awarding credit against

his sentence for jail time he served from December 11, 2008 to March 29

2009.      Appellant also argues plea counsel was ineffective in offering

erroneous advice that induced Appellant’s guilty plea. We will address these

arguments in turn.

        As noted above, the PCRA court’s June 12, 2014 order granted

Appellant additional credit for time served prior to sentencing.    Appellant


                                     -2-
J-S05034-15


argues, and the Commonwealth concedes, that Appellant is entitled to more

credit than the PCRA court awarded.              Both parties rely on 42 Pa.C.S.A.

§ 9760(4):

       § 9760. Credit for time served.

       After reviewing the information submitted under section 9737
       (relating to report of outstanding charges and sentences) the
       court shall give credit as follows:

                                           […]

       (4) If the defendant is arrested on one charge and later
       prosecuted on another charge growing out of an act or acts that
       occurred prior to his arrest, credit against the maximum term
       and any minimum term of any sentence resulting from such
       prosecution shall be given for all time spent in custody under the
       former charge that has not been credited against another
       sentence.

42 Pa.C.S.A. § 9760(4).        This Court has held that a trial court’s failure to

award proper credit for time served implicates the legality of a sentence, and

that this issue is cognizable under the PCRA.          Commonwealth v. Davis,

852 A.2d 392, 399-400 (Pa. Super. 2004), appeal denied, 868 A.2d 1197

(Pa. 2005); Commonwealth v. Beck, 848 A.2d 987, 989 (Pa. Super.

2004).2



____________________________________________


2
    We note that Appellant’s argument implicates the trial court’s written
sentencing order and not a faulty computation of time by the Department of
Corrections. The former is cognizable under the PCRA, whereas the latter
falls within the original jurisdiction of the Commonwealth Court.
Commonwealth v. Heredia, 97 A.3d 392, 394-95 (Pa. Super. 2014),
appeal denied, 104 A.3d 524 (Pa. 2014).



                                           -3-
J-S05034-15


      Police arrested Appellant on December 11, 2008 and charged him with

a variety of drug-related offenses.    Appellant was incarcerated as of that

date and unable to post bond. On March 29, 2009, while Appellant remained

incarcerated, the Commonwealth withdrew the original charges and filed a

new complaint.    The charges in the March 29, 2009 complaint arose from

the criminal acts leading to the December 11 arrest along with several

additions. In its July 12, 2012 judgment of sentence, the trial court ordered

credit for 1,201 days of time served. Judgment of Sentence, 7/12/12, at 3.

On collateral review, the PCRA court noted Appellant was incarcerated for

1,235 days from March 30, 2009 through the July 12, 2012 judgment of

sentence totaled 1,235 days.        The PCRA court therefore awarded an

additional 34 days of credit for time served. Order, 6/12/14, at ¶ 4. The

PCRA court did not award credit for time served beginning with Appellant’s

arrest and incarceration on December 11, 2008.            The Commonwealth

concedes the plain language of § 9760(4) required the court to do so. We

agree, and therefore vacate the PCRA court’s order and remand for entry of

a new order consistent with this memorandum.

      Appellant second issue is that plea counsel’s ineffective assistance

caused him to enter an involuntary guilty plea. In the body of the appellate

brief, Appellant’s counsel opines that this issue lacks merit. Appellant’s Brief

at 14.   Counsel representing a PCRA petitioner may choose from among

three procedural options: (1) advocate on the petitioner’s behalf, including


                                      -4-
J-S05034-15


the filing of an advocate’s brief with this court; (2) file in the PCRA court a

petition to withdraw and no merit letter pursuant to Commonwealth v.

Turner, 544 A.2d 927 (Pa. 1998) and Commonwealth v. Finley, 550 A.2d

213 (Pa. Super. 1998) (en banc), or (3) file a Turner/Finley letter and

petition to withdraw in this Court. See Commonwealth v. Quail, 729 A.2d

571, 573 n.2 (Pa. Super. 1999). Here, counsel improperly combines two of

these three options, filing an advocate’s brief that includes an apparent no

merit letter with regard to one issue.       We are aware of no precedent

authorizing this course of action.         Given counsel’s abandonment of

Appellant’s second issue and his failure to cite legal authority in support of

its merit, we deem the issue waived. Pa.R.A.P. 2119(b).

      We observe, nonetheless, that Appellant’s second issue would fail even

if we reached the merits.    The PCRA court’s opinion of January 12, 2014

thoroughly and accurately addressed the merits of Appellant’s second issue.

See Trial Court Opinion, 1/12/14, at 2-14.      In particular, Appellant pled

guilty after a thorough and adequate colloquy evincing that his plea was

knowing, intelligent, and voluntary. We would reject Appellant’s argument

on the basis of the legal analysis set forth in the PCRA court’s opinion. We

direct that a copy of the trial court opinion be filed along with this

memorandum.

      To summarize, we vacate that portion of the PCRA court’s order

pertaining to credit for time served. We affirm the remainder of the PCRA


                                     -5-
J-S05034-15


court’s order. We remand for entry of a new order in accordance with this

memorandum.

      Order vacated in part and affirmed in part.       Case remanded.

Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/27/2015




                                  -6-
                            LAWKtnt WOW rKWMVIIVIhNI                                      JVVJ
Jun. 12. 21114   1:WM




                                                                                .PLEAS
                                                       : IN THE COURT OF COMMON
         -COMMONWEALTH OF                              •
                                                       •
         PENNSYLVANIA,                                                                                NIA
                                                             LAWRENCE COUNTY,PENNSYLVA
          vs.                                          : NO.479 OF 2009, C.R.
          ROCCO LEO WING,
                                                              OTN: 043807-6
                           Defendant.
                                                  APPEARANCES

                                                           Gregory J. Simatic, Esquire
           FOR THE COMMONWEALTH:                           Deputy Attorney General
                                                           Office of the Attorney General
                                                           564 Forbes Avenue,6th Floor
                                                           Pittsburgh, PA 15219

                                                           pro se
           FOR THE DEFENDANT:                              Standby Counsel:
                                                           John J_ Bongivengo, Esquire
                                                           1301 West State Street, Suite B
                                                           New Castle, PA 16101


                                                       OPINION
                                                                                              June 12, 2014
            Piccione, J.
                                                                                                    Conviction
                         ore   the   Cou rt  for   disp osit ion  is the pro se Motion for Post
                    Bef
                                                                                                              g
                                  (her eina fter ,  the  "PC  RA" ) filed by the Defendant, Rocco Leo Win
            Collateral Relief
                                                                                                     which he
                      fter ,  the  "De  fen dan t") ,    The   Defendant raised incidents during
            (hereina
                                                                                            l. The Defendant
                     ted ly  rec eiv ed  inef fect ive assistance from his prior counse
             pur por
                                                                                              ermined the truth-
                                                             ance of his trial counsel so und
             contends that such ineffective assist
                                                                                                nce could have
                                                         able adjudication of guilt or innoce
             determining process that no reli
                                                                                                     Defendant
                                 Bec  aus  e  of  the   all ege d errors of his prior attorney, the
             taken place.
                      1:Donivi       LiCic          Jul IT   rnvinvilvHlAt                                                     , -r
Jun. 1/. Li11 11.




             requests this Court permit him to                 modify his sentence, or permit him to withdraw his

                                                                          is denied.
             guilty plea.' For the following reasons, the Defendants PCRA
                                                                                 to the charges of
                         On May 11, 2012, the Defendant entered a plea of guilty
                                                                                to 35 PS. § 780-
              possession with intent to deliver a controlled substance pursuant
                                                                             a child is present
              113(2)(30), manufacturing methamphetamine in a structure where
                                                                                                               e in manufacturing
              pursuant to 36 P.S. § 780-113(038), criminal conspiracy — engag
                                                                                                      to deliver and/or unlawful
              pursuant to 18 Pa.C.S.A. § 903(a)(1), possession with intent
                                                                       g      er person pursuant to
              delivery of a controlled substance, recklessly endangerin anoth
                                                               to 18 Pa.C.SA § 4120(a). The
              18 Pa.C.S,A. § 2705, and identity theft pursuant
                                                                        plea on his behalf. The
              Defendant was represented by courisel, who negotiated the
                                                                  and a plea hearing was held
              Defendant completed a written guilty plea colloquy,
                                                                  cted, the Court accepted the plea
              before this Court. After an oral colloquy was condu
                                                                     the Defendant to an aggregate
              agreement, and, on July 12, 2012, the Court sentenced
                                                                        n                           (16) years of incarceration
              term of not less than eight (8) years nor more than sixtee

               to be saved in a state correctional institution.
                                                                         ns nor a direct appeal frorn                                 his
                          The Defendant filed neither post sentence motio
                                                                Defendant filed the timely PCRA,
               sentencing order. Instead, on July 23, 2013, the
                                                                    listed charges was unlawfully
               wherein he argues that his guilty plea to the above-
                                                                          that his prior counsel's
               induced by his prior counsel. The Defendant argues
                                      his guilty plea to be entered unknowingly and involu
                                                                                           ntarily.
               ineffectiveness rendered

                                                                      s   this Court reinstate his appellate rights.   This Court wishes to
                    I.n his pro se Motion, the Defendant also request                                                             Supreme
                                                                                                              1.
OM IL.   al4                 1.14111c011ot WUlli 1   rrwinurivirinj




                                                                                                                time the
                             201  4,   thi s Cou  rt    hel  d  a   hea ring on the PCRA, during which
         On March 24,
                                                      Defendant and his prior counsel.
         Court heard testimony from the
                                                                                                           claim of the
                                                                  to seek post-cOnviction relief for a
                 The PCRA permits a petitioner
                                                                                                                   Under
                         ass  ist anc  e   of   tria l   cou  nse  l. 42 Pa.C.S.A. § 9543(a)(2)(ii).
         ineffective
                                                                                                       ctively. Comm.
                                                        ic presumption that counsel acted effe
          Pennsylvania law, there is a bas
                                                                                                               ts on the
                        94  2  A.2  d   903  ,  906     (Pa   .  Sup  er. 2008). Thus, the burden res
          v. Jones,
                                                                                                     r "must plead and
                 one r to  dem ons  tra   te  ine ffe   cti veness. Id. To do so, the petitione
          petiti
                                                                                                                    fective
                           pre  pon  der  anc  e  of    evi   den  ce  tha  t his conviction resulted from inef
           prove by a
                                                                                                         ular case, so
                                                                the circumstances of the partic
           assistance of counsel which, in
                                                                                                          ion of guilt or
                            the  tru  th- det  erm ini   ng   pro  ces  s that no reasonable adjudicat
           undermined
                                                                                                                           .
                                                 en    pla ce.  "   Co  mm   . v. Gra nberry, 644 Ald 204, 207 (Pa
           innocence could have             tak
                                                                                               Super. 1989)).
                                                        Dukeman,565 A.2d 1204(Pa.
           Super. 1994)(citing Cornm. v.
                                                                                                             whether the
                                                                      three-prong test to determine
                   Pennsylvania courts apply a
                                                                                                                 899 A.2d
                                est abl  ish  ed  ine   ffe  cti  ven ess   of counsel. Comm. v. Sneed,
            petitioner has
                                                                                                    the issue underlying
                   107    6 (Pa .  200  6).   Th  e  pet  iti  oner must first demonstrate that
            1067,
                                                                                                                     it must
                                    uab  le   mer it     Id.    Nex t,  if the  claim does have arguable merit,
            the claim has arg
                                                                                                        reasonable basis
                       det   erm ine  d  whe  the  r   cou  nse  l's acts or omissions had some
            then be
                                                                                                                          the
                                            int ere sts   of   his  cfie nt.  Id. "On ce it has been determined that
             designed to serve the
                                                                                                            is designed to
                        r cou  rse  of   act ion  cho    sen    by  cou  nsel had some reasonable bas
             particula
                                                                                                                  effective.°
                                  clie nt's   int ere   sts ,  cou  nse  l will be deemed constitutionally
             effectuate his
                                                                                                       rel. Washington v.
                            Mill er, 431     A.2  d  233   ,  23  5  (Pa. 1981) (citing Comm. ex
              Comm. v.
Jun, IL Zvlq   I:Dorm        LAWNCR,C WUIVIT IRVinviwitmr




                                                                                               Of ineffective
                                                        at 1076. "Prejudice in the context
         prejudice to him. Sneed, 899 A.2d
                                                                                                 ability That
                                                   onstrating that there is a reasonable prob
         assistance of counsel means dern
                                                                                                         erent.'
                                                       e of the proceeding would have been diff
         but for counsers error, the outcom
                                                                                                   . 724 A.2d
                                                          (Pa. 2001)(citing Comm. v. Kimball,
         Comm. v. Pierce, 786 A.2d 203, 213
                                                                                                  rejection of
                                                       sfy arty of the three prongs will require
          326, 332(Pa. 1999)). Failure to sati
                                                         Ald 544, 556(Pa. Super. 2008).
          the claim. COMM. v. Hammond,953
                                                                                                            s for
                          con tex t of a guilty  plea , inef fect iveness of counsel will serve as a basi
                  In the
                                                                                                 oluntary and
                                                         sed the defendant to enter an "inv
          relief only if the ineffectiveness cau
                                                                                                  "Where the
                                                        921 tad 526, 531 (Pa. Super. 2007).
           unknowing plea." Cornm. v. Moser,
                                                                                                      the plea
                   ant ent  ers  his  ple a  on   the   advice of counsel, the voluntariness of
           defend
                                                                                                    demanded
                                                           was within the range of competence
           depends on whether counsers advice
                                                                                                     , 141 (Pa.
                   rney s in crim inal  cas es. "  ld. (cit ing Comm. v. Hickman, 799 A.2d 136
           of atto
                                                                                              stances make it
                                                     unlawfully induced where the circum
           Super. 2002)). "A plea of guilty is
                                                                                                        tioner is
                       the   ind uce  men t  cau  sed   the  petitioner to plead guilty and the peti
           likely that
                                                                                                 42 Pa.C.S.A.
                                                         d 389, 394(Pa. Super. 2012)(citing
            innocent." Comm. v. Rachak, 62 A.3

           § 9543(a)(iii).
                                                                                                     the
                                                             r sentence is imposed requires that
                 The withdrawal of a guilty plea afte
                                                                                                    was
                                 a man ife st inju stic e occ urr ed, which mandates that the plea
           defendant show that
                                                                                               ad, 794
                 d into involuntarily, unk now ing ly,   or unintelligently. Comm. v. Muhamm
           entere
                                                                                        totality of the
                                                2). The Court must examine the
           A.2d 378, 383 (Pa. Super. 200
                                                                                            luntarily or
                     nce s and   det erm ine  whe the  r the plea was entered into invo
           circumsta
    Jun. 12. 2014 1:brm               LAWKMt UNNIY rKVIMUNUti-MT
                1




                                                             that the trial court should inquire
                                                                                                  into at least six
                    offered  in ope  n  cour t, arid adv ise
                                                                                                  and irrtelligentiy
                        as  in  ord er  to sho  w  tha t the plea was voluntarity, knowingly,
                    are
                                                                                                            as:
                                                                  Court must inquire into the following are
                    entered." Rachals,62 A.3d at 394. The
                                                                       d the nature of the charges
                                (1) Does the defendant understan
                                     to which he is pleading guilty?
                                                                        a?
                                (2) Is there a factual basis for the ple
                                                                      d that he has the right to trial
                                (3) Does the defendant understan
                                    by jury?
                                                                          that he is presumed
                                (4) Does the defendant understand
                                    innocent until he is found guilty?
                                                                 of the permissible ranges of
                                (5) Is the defendant aware
                                                                           es charged?
                                    sentences and/or fines for the offens
                                                                       judge is not bound by the
                                (6) Is the defendant aware that the
                                                                         dered unless the judge
                                    terrns of any plea agreement ten
                                    accepts such agreement
                                                          1189-1190 (Pa. 1977).
                        Comm. v. Willis, 369 A.2d 1189,
                                                                                                      h an oral
                                 the  tim e  of  the Def end ant s guilty plea, the Court went throug
                              At
                                                                                                      d that he
                                                                 agreement. The Defendant indicate
                        colloquy odor to accepting the plea
                                                                                                    hed to enter
                                   und ers too d the Com mon wea lth's recommendation and still wis
                        heard and
                                                                                                   oral colloquy
                                                              lth also conducted the following an
                        a plea of guilty. The Commonwea

                        with the Defendant
                                                                                        for the
                                            Q:      Mr. Wing, could you state your name
                                      record, please.

                                             A:      Rocco Leo Wing.
                                                                                      tand the
                                             Q:     And can you read, wdte and unders
                                       English language?
       53RD
    JuDICIAL                                  A:     Yes, ma'am.
     D.STR PVT



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                                                             2014
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Jun. 12. 2014 l:56PM
         1


                                                                                   y
                             Q:     Okay. And you understand you're here toda
                                                                   g manu fact urin g
                       pleading guilty to several counts, includin          mine  in
                                                             metharnp  heta
                       of rnethamphetamine, manufacturing
                       a child's horne, identity theft  ,  cons piracy to commit
                                                                   and recklessly
                       manufacturing of methamphetamine
                       endanger another person?

                              A:     Yes, ma'am.
                                                                           or
                              Q:     Have you had any drugs, alcohol
                                                                        s?
                       prescription medication, within the last 24 hour

                              A:      No, ma'arn.
                                                                         do you
                              Q:      Do you have a clear- head and
                        under-stand the purpose of today's proc
                                                                eedings?

                               A:     Yes, ma'am.
                                                                             form that
                               Q:     And did your attorney give you this
                                                                  ts and the rights you
                        I'm holding here that explains your righ
                                                                ?
                        give up by pleading guilty (indicating)

                               A:     Yes, ma'am.
                                                                      bottom of
                              Q:   And are these your initials at the
                        each page?

                               A:     Yep.
                                                                             page?
                                Q:     And did you, in fact, sign the last
                                                                   corr ect?
                         Actually, you used your initials; is that

                                A:     Yes, ma'am.
                                                                            on this
                                 Q:    Did you understand ail the questions
                         guilty plea form?

                                A:     Yes, ma'am.
                                                                                   fully
                                Q:     And did you answer all the questions truth
                       L11Ll1 v L vvUEll   T   PA.) I rIVIIV I FILK Y




                           0;     Do you have arty questions at all about either
                    the form or what's going on in court here today?

                           A:      No, rna'am.

                          Q:     Did anyone make any threats of force or
                    promises to get you to enter into this plea?

                           A.      No, ma'am.

                          Q:     And do you understand that the
                    manufacturing of methamphetamines is an ungraded felony
                    and carries a maximum incarceration of up to 20 years and
                    a maximum fine of up to $2001000?

                           A:      Yes, ma'am.

                         - Q:    And do you understand that manufacturing
                    methamphetamine in a child's home carries a maximum
                    sentence of seven years and a maximum fine of $25,000?

                           A:      Yes, ma'am.

                           Q:   And do you understand that conspiracy to
                    manufacture carries a maximum sentence of ten years and
                    a maximum fine of $100,000?

                          A:       Yes, ma'am.

                           Q:   And do you understand that identity theft
                    carries a maximum incarceration of seven years and a
                    rnaximum fine of $15,000?

                           A:      Yes, ma'am.

                          Q:      And do you understand that the Court has not
                    taken part in the plea agreement. The plea agreement I'm
                    speaking of are the recommendations we've made. Do you
                    understand that?

                           A:      Yes, ma'am.

                          Q:    And do you understand that if the Court
     53R o          accepts your guilty plea, but sentences you beyond the •
   .0./D/CIA L      terms and the Commonwealth has recommended, you
    !WM(CT
                    have no absolute right to withdraw your guilty plea?

LAWNENC.E. COVWCY
  PENNSYLVANIA

                                                            7
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u   ÌL   tVILY   I )I     LmI/IILPA/C lokYJIIT frOJIMAVIART                    No,




                               A:        Yes, ma'am.

                              CI:    And do you understand you had a right to
                        proceed to a jury trial in this case?

                               A:        Yes, ma'am.

                               Q:      And did you understand that if you chose to
                        go to trial, you would have been presumed innocent until
                        proven guilty and if would have been up to the
                        Commonwealth to prove to all 12 jurors beyond a
                        reasonable doubt that you are guilty?

                               A:        Yes, ma'am.

                                     •And you heard me read from the information
                               Q:
                        regarding the charges in that you comrnitted several
                        unlawful deliveries in Lawrence County and Butler County,
                        that you manufactured metharnphetamine in the home of
                        Daisy, Vanessa and Melina, that you committed identify
                        theft against Elijah Silver, that you conspired to commit
                        manufacturing of methamphetamine with Martha mills and
                        that you recklessly endangered the lives of Vanessa, Daisy
                        and Melina; is that correct?

                               A:        Yes, ma'am.

                               Q:        Okay. And do you admit that those facts that
                        l read are true and effect?

                              A:         Yes, ma'am.

                               Q:     Did you talk to your attorney about the guilty
                        plea you're entering today?

                              A:         I did.

                               Q:    And did your attorney explains [sic] to you the
                        nature  and the elements of the charges against you and
                        the — and what the Commonwealth would have to prove to
                 Lmmun,L NAJUWIT M./M./MANY
                                                                      No. 5865   F. 11




                     Q:    And are you satisfied with the services that
              Mr. Bonner's provided you in this case?

                     A:     Yes, ma'am.

N.T. Guilty Plea pgs. 11-16. Based upon the above oral colloquy as well as the

supplemental written colloquy, the Court found that the Defendant vvas entering his

• plea of guilty voluntarily, knowingly, and intelligently. As the Defendant stated in the

above colloquy, it was his decision to enter the guilty plea, and he was satisfied with

his legal representation. He agreed with the factual basis upon which the charges

were based. The Defendant also stated he had not been coerced or threatened to

plead guilty, or that there was guaranteed sentence to be imposed, and that he could

have proceeded to trial but elected to enter the instant plea.

       In his PCRA, the Defendant argues that his plea was not voluntarily, knowingly,

and intelligently entered because he was mislead to plead guilty to .the charge of

identity theft after he had continued to proclaim his innocence of that charge. During

the hearing on the PCRA, the Defendant's prior counsel was questioned about .his

negotiations with the Commonwealth. His prior counsel testified that• he hed numerous

discussions with the Assistant Attorney General regarding the cornprehensive plea

agreement prior to the date of the plea hearing. Counsel also testified that he• recalled

that he and the Defendant discussed the possibility of excluding the charge of identity

theft, but the Commonwealth would not accept that offer.

       At the time of the plea hearing, the Defendant's prior counsel testified that he
vuti.   L.   LV14-   1:)trivi   LAWK tNkA WUNIY MIHUNUIAKY                            No. 5865    P. 12




              Commonwealth had sufficient evidence to present, which would likely result in a

              conviction on greater charges. Further, the Defendant interrupted his counsel during

              the plea colloquy to review the terms of the agreement. Counsel indicated that at no

              point did the Defendant convey that he did not wish to proceed any further with the

              plea hearing.

                      The Defendant testified, however, that he was under the impression that he was

              not entering a guilty plea to the charge of identity theft. The Defendant testified that

              his prior counsel visited him in prison prior to the plea hearing and his counsel

              informed hirn that he would not have to plead guilty to identity theft. Additionally, prior

              to the comrnencement of the plea hearing on May 11, 2012, the Defendants prior

              counsel discussed the plea with him. Even then, the Defendant asserts that identity

              theft was never discussed with him. The Defendant completed a written guilty plea

              colloquy prior to the hearing. On the second page of the guilty plea colloquy, the

              charge of identity theft was written, but crossed off. The Defendant asserts that the

              first time he heard that the charge of identity theft was included in the plea agreement

              was when the Commonwealth stated so on the record. At that time, the Defendant

              interrupted the colloquy to ask his counsel why Identity theft was included and

              asserted he never agreed to plead guilty to the charge. The Defendant recalled that

              his prior counsel indicated that if he went to trial, he would likely be found guilty of this

              charge and he would not advise rejecting the plea offer at that time.

                      The Defendant explained that entered the plea of guilty to the charge of identity
ic. Lviit 1:)/rivi    Llilfltttnt   LAM I Y FKUltIONUIARY                   No. 5865   P. 13



     that had to be continued and dici not want the Court to take this into consideration

     upon sentencing. The Defendant testified that he was completely surprised when he

     heard that the Commonwealth included the charge of identity theft in the plea

     agreement and felt as if he were coerced into entering a plea of guilty to it.

            Based upon the above, the Court believes there is no question that the

     Defendant entered his plea knowingly, voluntarily and intelligently. The Defendant

     affirmed and reaffirmed his knowledge otthe terms of the plea agreement in oral and

     in written form. The Defendant even stated that he was satisfied with his legal

     representation. "The longstanding rule of Pennsylvania law is that a defendant may

     not challenge his guilty plea by asserting that he lied while under oath, even if he avers

     that counsel induced the lies. A person who elects to plead guilty is bound by the

     statements he makes in open court while under oath and may not later asiert grounds

    for withdrawing the plea which contradict the statements he made at his plea

     colloquy,' Comm. v. Yeomans, 24 A.3d 1044, 1045 (Pa.Super. 2011). IA] defendant

     who elects to plead guilty has a duty to answer questions truthfully. rrhe Court

     cannot] permit a defendant to postpone the final disposition of his case by lying to the

     court and later alleging that his lies were induced by the prompting of counsel."

     Comm. v. Pollard, 832 A.2d 617, 523-24(Pa. Super. 2003).

            The Court refers to Comm. v. Rathfon for guidance. 899 A.2d 366 (Pa. Super.

     2006). In Rathfon, the trial court found ineffective assistance of counsel with regard to

     a defendant's plea agreement and permitted the defendant to withdraw his guilty plea.
LVI'l   I .)ifM             1
                  LMORGNI,C .AWNIT   rKVIMUNUiliKY                     No. Mn    V.   14




 incarceration of nine (9) to eighteen (18) months in the county fadrity. At the time of

 the plea hearing, no one recognized that the defendant would not be able to serve his

 sentence in county jail because his prior convictions. The defendant's sentence would

  be aggregated consecutively wtth his state prison sentence. After the Department of

  Corrections aggregated his sentence with his prior sentence, the defendant filed a

 PCRA petition asserting ineffecfive assistance of his plea counsel.

         In the PCRA, the defendant argued that as a result of his plea counsel's

 ineffective assistance, the defendant entered his plea involuntarily and unknowing. At

 the plea hearing, the defendant asserted that his plea was conditioned upon his

 receiving a county sentence. The defendant argued that his plea agreement was

  bargained for and would not have entered a plea of guilty had he known that he would

 not be able to serve his sentence in county prison. After the hearing, the trial court

 permitted the defendant to withdraw his guilty plea, and the Commonwealth appealed.

         On appeal, the Superior Court of Pennsylvania found that the record supported

 the trial coures determination that there was a reasonable probability that the

 defendant would not have pleaded guilty had he known that he would not have been

 able to serve his sentence in a county facility. As a result, the Superior Court affirmed

 the trial court's order, which permitted the defendant to withdraw his guilty•plea. The

 Superior Court reasoned that the defendant had bargained for a county sentence and

  did not get what he bargained for. The Superior Court stated that the defendant was

  under "the continuing misapprehension that the sentence would be served in the
W   1.          LVJt
         1 L.          1 • J/ 1 HI   LMOREnC       MIMUNUIRKY                         No, 5665   P. 15



                        This Court finds the above case to be distinguishable from the instant case. In

                 Rathfon, the defendant entered into a plea agreement with terms that were impossible

                 to fulfill. The • defendant did not discover this impossibility until an action by the

                 Department of Corrections, eight months after he was. sentenced by the trial court.

                 The defendant in Rathfon did not get what he bargained for. In the instant case, the

                 Defendant stated under oath that he committed the crimes with which he was charged.

                 He stated that the factual basis for the crimes was accurate and he understood the

                 implications of his guilty plea and he was voluntarily entering the plea. The Defendant

                 could have stopped the proceedings at any point to state that he did not wish to enter

                .- a guilty plea to the charge of identity theft, but he did not He• did not .exhibit any

                 indication that he did not wish to plead guilty. Moreover, at the time of the Defendants

                 sentencing, the Court also gave the Defendant an opportunity to place any statement

                 on the record. The Defendant communicated his intent to serve his sentence then to

                 make better decisions in his life. When the Court asked him tf he had any questions,

                 the Defendant answered that he did not Here, the Defendant received exactly what

                 he bargained for.

                         Unlike in Rathfon, here, there is no indication that the Defendant was under a

                 continuing misapprehension of the terms of his agreement However, assuming, in

                 arguendo, that the Defendant did not agree to plead guilty to identity theft prior to the

                 plea hearing, the record indicates that he had a discussion with his counsel during the

                 hearing and stated that he did not wish to take a recess, that he wished to continue.
V U 11,        1 . J.1 1 RI   LritrALnivi. l,UVl l T   í AU! fllJilu 111:f    NO. DM      r.   rt




          knowingly and voluntarily pleading guilty to the charges listed above. The Defendant

          even stated that he was satisfied with his legal representation. The Defendant'cannot

          now recant his representations made under oath to the Court

                  Additionally, the Defendant is not able to prove that his prior counsers actions

          have prejudiced him. "To succeed in showing prejudice, the defendant must show that

          it is reasonably probable that, but for counsel's errors, he would not have pleaded

          guilty and would have gone to trial." Hickman, 799 A.2d at 141. "The reasonable

          probability test is not a stringent one; it merely refers to a 'probability sufficient to

          undermine confidence in the outcome." Comm. v. Berndt, 74 A.3d 185,192 (Pa.

          Super. 2013) (internal quotation marks and citations omitted). Because this Court

          finds that the Defendant entered his plea of guilty knowingly, voluntarily and

          intelligently, the Defendant is unable to show he has suffered prejudice. He cannot

          show that but for his counsel's actions, he would not have accepted the plea

          agreement. As stated in Pollard, "Our law does not require that a defendant be totally

          pleased with the outcome of his decision to plead guilty, only that his decision be

          voluntary, knowing and intelligent." 832 A.2d at 524. For the foregoing reasons, the

          Court agrees with the Commonwealth that the Defendant is bound by his statements

          and may not be permitted to withdraw his guilty plea or modify his sentence under.this

          theory.

                  Next, the Defendant argues that he received Ineffective assistance from his

          prior counsel because his prior counsel failed to file a post-sentence motion. During
L.   Lv                LnIRRENVC WWII;   rKUlhUNMAKY                         No. 5865   P. 17




     modification. The Defendant attached this letter to his PCRA. Upon review, the

      Defendant wrote that he believes his sentence is too harsh, 1-le stated that he did not

      wish to withdraw his plea. On August 10, 2012, the Defendants prior counsel •did file

      the Motion for Sentence Reduction/Modification, in which he asks the Cpurt to lessen

      his sentence. This Motion was denied by this Court Because the Defendants prior

      counsel performed exactly as the Defendant asked, the Defendant did not receive

      ineffective assistance for failing to file any further post-sentence motion.

             Lastly, the Defendant argues that he received ineffective assistance 'from .his

      prior counsel because he was not provided with the proper credit for time already

      served in prison. According to the Lawrence County Jail records, the Defendant was

      incarcerated prior to sentencing for purposes of the instant case frorn March 30, 2009

      to August 15, 2012, totaling one thousand two hundred thirty-five (1235) days.

      According to the Defendants sentencing order, the Defendant was credited with one

     thousand two hundred one (1201) days served. As a result, the Defendant is entitled

      to be credited with an additional thirty-four (34) days attributable to his current

      sentence.

             Based upon the foregoing, the Defendants Motion for Post-Conviction

      Collateral Relief is hereby granted in part ancl denied in part.
