J-S51045-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,              :      IN THE SUPERIOR COURT OF
                                           :            PENNSYLVANIA
                   Appellee                :
                                           :
              v.                           :
                                           :
JOSE M. OQUENDO, JR.,                      :
                                           :
                   Appellant               :          No. 1468 MDA 2013

          Appeal from the PCRA Order entered on July 10, 2013
            in the Court of Common Pleas of Luzerne County,
               Criminal Division, No. CP-40-0003290-2011

BEFORE: BOWES, OTT and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                        FILED AUGUST 28, 2014



Petition for relief pursuant to the Post                                   See

42 Pa.C.S.A. §§ 9541-9546. We affirm.

        On February 1, 2012, Oquendo pled guilty to aggravated assault by

vehicle while driving under the influence, driving under the influence

highest rate of alcohol, second offense, driving with a suspended license and

simple assault.1 The trial court sentenced Oquendo to 24 to 48 months in

prison.

        The PCRA court set forth the subsequent procedural history of the case

as follows:

             At the time of his sentencing[, Oquendo] was incarcerated
        at S.C.I. Dallas as a result of his being recommitted on

1
    75 Pa.C.S.A. §§ 3735.1, 3802(c) and 1543; 18 Pa.C.S.A. § 2701(a)(1).
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        September 29, 2011[,] for a parole violation arising out of the
        same charges for which he was sentenced by [the trial] court.
        The sentences imposed by [the trial] court were each at the
        lowest end of the standard range[,] and were to run
        concurrent[ly] to each other and concurren[ly] from May 2,
        2012, to the back time [Oquendo] was serving as a result of his
        parole violation.

              The Department of Corrections determined that, pursuant
        to the Parole Act, 61 Pa.C.S.A. [§ 61382], the sentence imposed
        by [the trial] court could not run concurrent[ly] to the sentence
        [Oquendo] was serving as a result of his parole violation, but
        must be run consecutive[ly] to that sentence.

PCRA Court Opinion, 7/10/13, at 3-4 (footnote added).




2
    Section 6138 of the Parole Act states, in relevant part, as follows:

        § 6138. Violations of terms of parole

        (a) Convicted violators.

                                       ***

        (5) If a new sentence is imposed on the parolee, the service of
        the balance of the term originally imposed by a Pennsylvania
        court shall precede the commencement of the new term imposed
        in the following cases:

            (i) If a person is paroled from a State correctional
            institution and the new sentence imposed on the
            person is to be served in the State correctional
            institution.

61 Pa.C.S.A. § 6138(a)(5)(i); see also Commonwealth v. Dorian, 468
A.2d 1091, 1092 (Pa. 1983
violator convicted and sentenced to prison for another offense must serve

Commonwealth v. Zuber, 535 A.2d 441, 443 (Pa. 1976)).



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      Thereafter, on May 2, 2012, the trial court imposed the 24 to 48

month prison sentence consecutively to the sentence Oquendo was serving

as a result of his parole violation. Oquendo did not file a direct appeal. On

March 14, 2013, Oquendo filed a PCRA Petition. The PCRA court appointed

Oquendo counsel.     After a hearing, the PCRA court denied the Petition.

Oquendo filed a timely Notice of Appeal.



[PCRA] court erred in denying [his] claim of ineffective assistance of counsel,

specifically that plea counsel failed to properly advise [him] that the [trial

c]ourt could not order that [the new] sentence be served concurrently with



            We review an order [denying] 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

      ruling if it is supported by evidence of record and is free of legal
      error.

Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (citations

omitted).



to enter an involuntary and unknowing guilty plea because he was not

advised that his sentence could not be served concurrently to his parole

violation sentence. Brief for Appellant at 9. Oquendo argues that because

he was under the mistaken impression that his new sentence and his parole




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violation sentence could run concurrently to each other, he should now be

allowed to withdraw his plea. Id. at 10.

      To succeed on an ineffectiveness claim, Oquendo must demonstrate by

a preponderance of the evidence that

      (1) [the] 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

      that the outcome of the proceedings would have been different.

Commonwealth v. Ali, 10 A.3d 282, 291 (Pa. 2010). A failure to satisfy

any prong of the test for ineffectiveness will require rejection of the claim.

Commonwealth v. Martin, 5 A.3d 177, 183 (Pa. 2010).                Counsel is

presumed to be effective and the burden is on the appellant to prove

otherwise. Commonwealth v. Hanible, 30 A.3d 426, 439 (Pa. 2011).

            A criminal defendant has the right to effective counsel
      during a plea process as well as during trial. The law does not
      require that appellant be pleased with the outcome of his
      decision to enter a plea of guilty. Instead, the defendant must

      injustice, for example, by facilitating entry of an unknowing,
      involuntary, or unintelligent plea. The voluntariness of the plea
      depends on whether co
      competence demanded of attorneys in criminal cases.
      Therefore, 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.

            Our law is clear that, to be valid, a guilty plea must be
      knowingly, voluntarily and intelligently entered. There is no
      absolute right to withdraw a guilty plea, and the decision as to
      whether to allow a defendant to do so is a matter within the
      sound discretion of the trial court. To withdraw a plea after
      sentencing, a defendant must make a showing of prejudice


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      manifest injustice when it was entered into involuntarily,



Commonwealth v. Bedell, 954 A.2d 1209, 1212 (Pa. Super. 2008)

(citations, brackets, and quotation marks omitted).

      In order to ensure a voluntary, knowing, and intelligent plea, trial

courts are required to ask the following questions in the plea colloquy:

      1) Does the defendant understand the nature of the charges to
         which he or she is pleading guilty or nolo contendere?

      2) Is there a factual basis for the plea?

      3) Does the defendant understand that he or she has the right
         to a trial by jury?

      4) Does the defendant understand that he or she is presumed
         innocent until found guilty?

      5) Is the defendant aware of the permissible           ranges   of
         sentences and/or fines for the offenses charged?

      6) Is the defendant aware that the judge is not bound by the
         terms of any plea agreement tendered unless the judge
         accepts such agreement?

Id.; see also

affirmatively demonstrate that the defendant understood what the plea

                                   Commonwealth v. Lewis, 708 A.2d 497,

                              determining whether a guilty plea was entered



                                         Commonwealth v. Flanagan, 854

A.2d 489, 513 (Pa. 2004) (citation and internal quotation marks omitted).


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aware of what he was doing, and the burden of proving involuntariness is

              Commonwealth v. Stork, 737 A.2d 789, 790 (Pa. Super.

1999) (citation and internal brackets omitted).

      Based upon our review of the totality of the circumstances, we




and voluntarily entered the guilty plea.          At the plea colloquy, Oquendo

stated that he understood the English language, and that he was not under

the influence of alcohol or drugs. N.T., 2/1/12, at 3. Oquendo affirmed that

he understood all of the charges against him, and that he was admitting to

the facts that led to those charges.        Id.    Oquendo also stated that by

pleading guilty, he understood that he was foregoing certain rights,

including, inter alia, the presumption of innocence and the right to a jury

trial. Id. at 4. Further, the sentencing ranges available for each charge at

the plea proceedings were specified to Oquendo. Id. at 2-3. Moreover, the



entry of the guilty plea. Id. at 3.

      Based upon the foregoing, we conclude that counsel did not cause

Oquendo to involuntarily tender his guilty plea by failing to inform him that

his new sentence must run consecutively to his parole violation sentence.

Indeed, Oquendo accepted the factual basis of the charges and admitted



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that he committed the crimes in question. Moreover, as the parties did not

agree to a sentencing recommendation, Oquendo cannot establish that his

guilty plea was predicated on an understanding that his sentences would run

concurrently   rather    than   consecutively.   See    Commonwealth        v.

Velasquez

allegations that counsel induced a guilty plea by promising a lighter sentence

were not sufficient to prove ineffectiveness of counsel, where those claims

were not supported by the record); see also Commonwealth v. Brown,




ineffectiveness claim fails.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/28/2014




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