J-S30029-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA


                       v.

SABRIEL R. RIVERA

                            Appellant                 No. 1938 MDA 2016


                Appeal from the PCRA Order November 2, 2016
               In the Court of Common Pleas of Dauphin County
              Criminal Division at No(s): CP-22-CR-0005350-2013


BEFORE: SHOGAN, J., RANSOM, J., and MUSMANNO, J.

MEMORANDUM BY RANSOM, J.:                               FILED JUNE 27, 2017

        Appellant, Sabriel R. Rivera, appeals from the order entered November

2, 2016, denying his petition for collateral relief filed under the Post

Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.

        We adopt the following statement of facts from the PCRA court’s

opinion, which in turn is supported by the record. See PCRA Court Opinion

(PCO), 11/2/16, at 1-2.          In July 2013, Appellant was charged with five

counts of possession with intent to deliver a controlled substance, one count

of conspiracy to deliver a controlled substance, and one count of corrupt

organizations.1       In October 2014, a federal district judge sentenced

Appellant to seventy months of incarceration for bank robbery.2 In January
____________________________________________


1
    See 35 P.S. § 780-113(a)(30), 18 Pa.C.S. §§ 903, 911(b)(3), respectively.
2
    18 U.S.C. § 2113(a).
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2015, Appellant entered a negotiated guilty plea in the instant matter and

was sentenced as follows:

      Counts 1-4: twenty four to forty-eight months of incarceration,
      to run concurrent with each other and consecutive to the federal
      sentence;

      Count 5: forty-eight to ninety-six months of incarceration,
      concurrent with counts six and seven and the federal sentence;

      Count 6: forty-eight to ninety-six months of incarceration,
      concurrent with counts five and seven and the federal sentence;

      County 7: thirty-six to ninety-six months of incarceration,
      concurrent with counts five and six and the federal sentence.

Appellant did not pursue a direct appeal. In October 2015, he timely filed a

motion seeking PCRA relief. Counsel was appointed and filed an amended

petition on Appellant’s behalf, averring that PCRA counsel was ineffective for

failure to inform Appellant of the consequences of his guilty plea and failure

to provide Appellant with discovery documents.           The court held an

evidentiary hearing at which both Appellant and trial counsel, Damian

DeStefano, testified.

      Appellant testified that he did not have the opportunity to review

discovery documents with counsel prior to the guilty plea.      See Notes of

Testimony (N.T.), 5/23/16, at 8. However, he admitted that counsel gave

him a CD containing discovery materials.     Id.   Appellant also claimed he

thought he would receive a six to twelve year sentence, and that his

attorney did not advise him of the possibility of parole revocation. Id. at 9,

12. Appellant never filed a motion to withdraw his guilty plea. Id. at 18.


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      Plea counsel Damian DeStefano testified that while he was aware of

the federal charges against Appellant, he was not aware that Appellant was

on state parole.   See N.T., 5/23/16, at 26-27.      He did not discuss state

parole with Appellant.   Id.   Due to the nature of the charges Appellant

faced, Mr. DeStefano was primarily concerned with obtaining sentence time

concurrent to Appellant’s federal sentence. Id. at 27. Mr. DeStefano was

unaware of any possibility of Appellant’s parole being revoked, was never in

contact with Appellant’s parole agent, and did not discuss parole revocation

with Appellant’s appointed federal defender. Id. at 29-31.

      On appeal, Appellant raises the following issues for our review:

      Did the PCRA court err in denying [Appellant’s] PCRA motion
      when: (1) counsel failed to inform [Appellant] of the possibility
      of a parole revocation following his guilty plea, and (2) counsel
      failed to provide [Appellant] with his discovery documents before
      entering his guilty plea?

Appellant’s Brief at 4 (unnecessary capitalization omitted).

      We review an order denying a petition under the PCRA to determine

whether the findings of the PCRA court are supported by the evidence of

record and free of legal error. Commonwealth v. Ragan, 923 A.2d 1169,

1170 (Pa. 2007). We afford the court’s findings deference unless there is no

support for them in the certified record.    Commonwealth v. Brown, 48

A.3d 1275, 1277 (Pa. Super. 2012) (citing Commonwealth v. Anderson,

995 A.2d 1184, 1189 (Pa. Super. 2010)).

      Appellant claims that counsel was ineffective in his representation at

the guilty plea stage. See Appellant’s Brief at 8. First, Appellant claims that

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he was not informed of the collateral consequences of his plea, and would

not have pleaded guilty had he known his state parole would have been

revoked.    Id. at 10-11.      Second, Appellant claims that counsel was

ineffective for failure to provide him with his discovery materials.

      We presume counsel is effective.      Commonwealth v. Washington,

927 A.2d 586, 594 (Pa. 2007). To overcome this presumption and establish

the ineffective assistance of counsel, a PCRA petitioner must prove, by a

preponderance of the evidence that: “(1) the underlying legal issue has

arguable merit; (2) counsel’s actions lacked an objective reasonable basis;

and (3) actual prejudice befell the petitioner from counsel’s act or omission.”

Commonwealth v. Johnson, 966 A.2d 523, 533 (Pa. 2009) (citations

omitted).   “A petitioner establishes prejudice when he demonstrates that

there is a reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different. Id. A claim

will be denied if the petitioner fails to meet any one of these requirements.

Commonwealth v. Springer, 961 A.2d 1262, 1267 (Pa. Super. 2008)

(citing Commonwealth v. Natividad, 938 A.2d 310, 322 (Pa. 2007));

Commonwealth v. Jones, 942 A.2d 903, 906 (Pa. Super. 2008).

      We review allegations of counsel’s ineffectiveness in connection with a

guilty plea as follows:

      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

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     whether counsel’s advice was within the range of competence
     demanded of attorneys in criminal cases.

     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 on going
     to trial. The reasonable probability test is not a stringent one; it
     merely refers to a probability sufficient to undermine confidence
     in the outcome.

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

and internal quotation marks omitted). In determining whether a plea was

entered knowingly and voluntarily, this Court considers the totality of the

circumstances surrounding the plea.     Commonwealth v. Flanagan, 854

A.2d 489, 513 (Pa. 2004).

     First, Appellant argues that counsel was ineffective for failure to advise

him of the collateral consequences of his plea, namely, that his parole could

be revoked following his guilty plea.   See Appellant’s Brief at 10-11.     He

avers that he would not have pleaded guilty had he known he would serve

additional time. Id. at 11-13. Accordingly, Appellant contends his plea was

not knowing, intelligent and voluntary. Id. at 12.

     Our Court has previously held that

     [o]nce a guilty plea has been entered and sentence imposed, the
     plea may be withdrawn only upon a showing of manifest
     injustice, which may be established if the plea was not
     voluntarily or knowingly entered. However, the appellate courts
     of the Commonwealth consistently have ruled that a defendant's
     lack of knowledge of collateral consequences to the entry of a
     guilty plea does not render a plea unknowing or involuntary.

     Probation revocation proceedings in an unrelated criminal action
     do not involve sentencing consequences of pleading guilty in the

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      action at issue. Thus, we hold that the possibility of probation
      revocation is a collateral consequence to a guilty plea, and the
      fact that a defendant was not informed that he faces such a
      possibility in an unrelated criminal case does not undermine the
      validity of the plea.

Commonwealth v. Brown, 680 A.2d 884, 887 (Pa. Super. 1996) (internal

citations and quotations omitted); see also Barndt, 74 A.3d at 196 (noting

that parole revocation is a collateral consequence, and that parole

recommitment     additional   to   a   new   sentence    is   also   a   collateral

consequence). Further, our Court has held that while counsel’s affirmative

misrepresentation may constitute ineffective assistance, the failure to advise

a client regarding collateral consequences does not. See Commonwealth

v. Abraham, 62 A.3d 343, 352-53 (Pa. 2012); see also Barndt, 74 A.3d at

196, 200-01 (noting that when dealing with collateral consequences of a

guilty plea, counsel’s sins of omission must be treated differently than his

sins of commission).

      Here, Appellant makes no argument that counsel gave him incorrect

advice regarding the collateral consequences of his plea.            Trial counsel

credibly testified that he did not have a conversation with Appellant about

parole revocation and was unaware Appellant was on state parole. Indeed,

Appellant’s admission that he never had a conversation with trial counsel

about the possibility of revocation corroborates this testimony. Accordingly,

as the failure to advise a client of the collateral consequences of a guilty plea

does not constitute ineffective assistance of counsel, the court did not err in


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dismissing Appellant’s petition. See Abraham, 62 A.3d at 352-53; Barndt,

74 A.3d at 196; Ragan, 923 A.2d at 1170.

     Finally, Appellant claims that counsel’s failure to provide him with

discovery materials resulted in the entry of a plea that was not knowing,

intelligent, and voluntary.     Although Appellant cites to testimony of the

record in support of his contentions, he offers absolutely no legal authority

to support his claims. Nor has Appellant identified the discovery that he was

not able to access.    Accordingly, he has waived this claim for purposes of

appeal. See Pa.R.A.P. 2119(a)-(c); see also Commonwealth v. Knox, 50

A.3d 732, 748 (Pa. Super. 2012) (“[T]he argument portion of an appellate

brief must be developed with a pertinent discussion of the point which

includes citations to the relevant authority.”)   Finally, even if not waived,

this contention is meritless.     Appellant received the discovery from trial

counsel. See N.T., 5/23/16, at 8, 26.

     Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/27/2017




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