J-S30038-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ANDREW MARK SVENTEK                        :
                                               :
                       Appellant               :   No. 80 WDA 2020

            Appeal from the PCRA Order Entered December 17, 2019
    In the Court of Common Pleas of Erie County Criminal Division at No(s):
                           CP-25-CR-0000185-2018

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ANDREW M. SVENTEK                          :
                                               :
                                               :   No. 81 WDA 2020

            Appeal from the PCRA Order Entered December 17, 2019
    In the Court of Common Pleas of Erie County Criminal Division at No(s):
                           CP-25-CR-0000186-2018


BEFORE:      MURRAY, J., McLAUGHLIN, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                            FILED JULY 24, 2020

        Appellant Andrew M. Sventek appeals from the Order entered in the

Court of Common Pleas of Erie County on December 17, 2019, denying his




____________________________________________


*   Former Justice specially assigned to the Superior Court.
J-S30038-20



first petition filed pursuant to the Post Conviction Relief Act (PCRA).1    We

affirm.2

        On August 7, 2018, Appellant pled guilty to Count Two at Docket

Number 185-2018, Persons not to Possess, Use Manufacture Control, Sell or

Transfer Firearms, and Count Three, Terroristic Threats.3 The charges arose

following Appellant’s acts of pointing a loaded, semi-automatic handgun at

Ryan Burlew’s head and threatening to shoot him on December 11, 2017.

Also on August 7, 2018, Appellant entered a guilty plea in an unrelated matter

to Count Two at Docket Number 186 2018, Access Device Fraud. 4 This charge

followed Appellant’s using an access device to obtain fifteen hundred

($1,500.00) dollars from Tina Sventek’s bank account on November 24, 2017.



____________________________________________


1   42 Pa.C.S.A. §§ 9541-9546.

2 Appellant properly filed counselled, separate notices of appeal at each of the
two lower court dockets: No. 185 of 2018 and 186 of 2018, on January 16,
2020. See Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018);
Commonwealth v. Nichols, 208 A.3d 1087, 1089 (Pa.Super. 2019)
(explaining that the Pennsylvania Supreme Court in Walker held that “where
a single order resolves issues arising on more than one docket, separate
notices of appeal must be filed for each case. The Supreme Court observed
that the Official Note to Rule 341 of the Pennsylvania Rules of Appellate
Procedure provides a bright-line mandatory instruction to practitioners to file
separate notices of appeal, and accordingly, determined that the failure to do
so requires the appellate court to quash the appeal.”) (internal citations and
quotation marks omitted; emphasis removed).
3   18 Pa.C.S.A. §§ 6105(a)(1) and 2706(a)(1), respectively.

4   18 Pa.C.S.A. § 4106(a)(1)(ii).



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The Commonwealth agreed to nolle pros the remaining charges at both

dockets in exchange for Appellant’s guilty pleas.

       On September 28, 2018, Appellant received an aggregate sentence of

six (6) years to twelve (12) years in prison. 5 Appellant did not file either a

post sentence motion or a direct appeal following his judgment of sentence.

       On June 7, 2019, Appellant filed a timely PCRA petition pro se. Counsel

was appointed and filed a Supplement to Motion for Post Conviction Collateral

Relief on October 30, 2019. Therein, Appellant challenged the validity of his

guilty pleas and asserted that they had been entered involuntarily due to trial

counsel’s ineffectiveness. On November 19, 2019, the PCRA court filed its

Notice of Intent to Dismiss PCRA Pursuant to Pa.R.Crim.P. 907(1), and in its

Order entered on December 17, 2019, the PCRA court dismissed Appellant’s

PCRA petition.

       Appellant filed timely notices of appeal, and upon receipt thereof, the

PCRA court entered an Order on January 10, 2020, directing Appellant to file

a concise statement of the matters complained of on appeal pursuant to

Pa.R.A.P. 1925(b).6 Appellant filed his Concise Statement of Matters
____________________________________________


5 Specifically, Appellant received sixty (60) months to one hundred twenty
(120) months in prison on the firearms charge and twenty-four (24) months
to forty-eight (48) months on the Terroristic Threats charge, to run
concurrently with the firearms charge. Appellant received an additional twelve
(12) months to twenty-four (24) months of incarceration on the Access Device
Fraud charge which was to run consecutively to the firearms charge.

6 The PCRA court thereafter entered a Corrected Order wherein he added
docket number 185-2018 to the caption.


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Complained of on Appeal on January 29, 2020, and on February 24, 2020, the

PCRA court filed its Rule 1925(a) Opinion. Therein, the court indicated that

its rationale for dismissing Appellant’s PCRA petition had been set forth in its

Notice of Intent to Dismiss entered on November 21, 2019, and in the Final

Order entered on December 17, 2019; therefore, no further Opinion would be

forthcoming. On May 5, 2020, Appellant filed an application for consolidation

of the appeals with this Court, and on May 11, 2020, this Court granted the

motion in a Per Curiam Order.

        In his brief, Appellant presents the following two questions for our

consideration:

        A. WHETHER THE APPELLANT'S GUILTY PLEAS WERE
        INVALIDATED GIVEN THE INEFFECTIVE ASSISTANCE OF
        COUNSEL DUE TO COUNSEL'S CONDUCT THAT INDUCED THE
        ENTRY   OF   GUILTY  PLEAS    IN   THE    NATURE   OF
        MISREPRESENTATIONS AND INACTION AS TO THE FORMULATION
        OF A DEFENSE OF THE APPELANT [SIC] WAS AN INNOCENT
        PARTY?

        B. WHETHER THE APPELLANT WAS AFFORDED INEFFECTIVE
        ASSISTANCE OF COUNSEL IN FAILING TO ABIDE BY THE
        APPELLANT'S DIRECTIVE TO SEEK TO WITHDRAW THE GUILTY
        PLEAS?

Brief for Appellant at 2.7
____________________________________________


7   The substance of the Commonwealth’s brief consists of the following:

            The Trial Court's Opinion, filed February 24, 2020, which
        incorporates its Notice of Intent to Dismiss PCRA that was filed on
        November 21, 2019, along with its Final Order that was filed on
        December 17, 2019, accurately and appropriately address the
        issues raised by Appellant in Appellant's Concise Statement of



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____________________________________________


       Matters Complained of on Appeal. The Commonwealth would join
       the Trial Court in its reasoning, whereby it concludes the issues
       raised in Appellant's Concise Statement of Matters Complained of
       on Appeal are without merit based on a review of the record as
       well as relevant statutory and case law. Therefore, enclosed for
       incorporation into the Commonwealth's argument is the Trial
       Court's Opinion, attached as Commonwealth's Exhibit A, its Notice
       of Intent to Dismiss PCRA Pursuant to Pa.R.Crim.P. 907(1),
       attached as Commonwealth's Exhibit B, and its Final Order,
       attached as Commonwealth's Exhibit C.

Commonwealth’s Brief at 1.

      We remind the Commonwealth of the Pennsylvania Supreme Court’s
recent pronouncement pertaining to a party’s attempt to incorporate prior
arguments in an appellate brief:

       [o]ur rules of appellate procedure specifically require a party to
       set forth in his or her brief, in relation to the points of his argument
       or arguments, “discussion and citation of authorities as are
       deemed pertinent,” as well as citations to statutes and opinions of
       appellate courts and “the principle for which they are cited.”
       Pa.R.A.P. 2119(a), (b). Therefore our appellate rules do not allow
       incorporation by reference of arguments contained in briefs filed
       with other tribunals, or briefs attached as appendices, as a
       substitute for the proper presentation of arguments in the body of
       the appellate brief. Were we to countenance such incorporation
       by reference as an acceptable manner for a litigant to present an
       argument to an appellate court of this Commonwealth, this would
       enable wholesale circumvention of our appellate rules which set
       forth the fundamental requirements every appellate brief must
       meet. See, e.g., Pa.R.A.P. 2135(a)(1) (establishing length of
       principal brief at no greater than 70 pages); Commonwealth v.
       (James) Lambert, 568 Pa. 346, 356 n.4, 797 A.2d 232, 237 n.4
       (2001) (Opinion Announcing Judgment of the Court) (refusing to
       consider claims not argued in the brief but incorporated by
       reference from motions made at trial and observing that “[t]o
       permit appellant to incorporate by reference his previous motions
       would effectively allow him to more than double the original
       briefing limit.”). The briefing requirements scrupulously
       delineated in our appellate rules are not mere trifling matters of



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       Initially, we note that in reviewing the propriety of the PCRA court's

dismissal of Appellant's petition, we are limited to determining whether the

court's findings are supported by the record, and whether the order is free of

legal error. Commonwealth v. Allen, 557 Pa. 135, 732 A.2d 582 (1999).

       In his first issue, Appellant contends his guilty pleas were unknowing

and involuntary because trial counsel had provided him with erroneous legal

advice that induced him to plead guilty, despite the fact that he is “absolutely

innocent of all criminal charges in these cases.” Brief for Appellant at 5, 8-9.

Appellant maintains his desire to take his case to trial was “impacted and

undermined” by counsel’s “consistent conduct” in failing to reply to Appellant’s

letters and provide him with discovery and in his expressing disgust with

Appellant’s wish to proceed to trial. Id.        Appellant further contends counsel

pressured him to plead guilty:

       by telling him the Commonwealth would disclose[] his entire
       criminal record to the jury at trial and that he would be subject to
       the maximum sentence possible if convicted. Counsel further
       represented that [Appellant] would be out of jail sooner if he took
____________________________________________


       stylistic preference; rather, they represent a studied
       determination by our Court and its rules committee of the most
       efficacious manner by which appellate review may be conducted
       so that a litigant's right to judicial review as guaranteed by Article
       V, Section 9 of our Commonwealth's Constitution may be properly
       exercised. Thus, we reiterate that compliance with these rules by
       appellate advocates who have any business before our Court is
       mandatory.

Commonwealth v. Housman, 226 A.3d 1249, 1264 (Pa. 2020) (citation
omitted).


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      the plea agreement than if he went to trial and won. After being
      confronted with all of these representations from counsel,
      [Appellant] relented and agreed to enter the guilty pleas and
      accept the terms of the plea agreement.

Id.

      Appellant also posits that counsel exceeded the bounds of credible

advocacy and acted in contravention of his interests in “deceiving him” to

accept the guilty pleas for crimes he did not commit. Id. at 7. Although he

recognizes the written and oral plea colloquies evince the contrary, Appellant

concludes that his sentence of five to ten years’ incarceration on the firearms

charge, “was a wholesale departure from what counsel had represented to

[Appellant] in an effort to intimidate and induce him into maintaining his guilty

pleas.” Id. at 7-11.

      Preliminarily, we note that a petitioner may obtain relief on his allegation

that he had been unlawfully induced to plead guilty where the circumstances

make it likely that the inducement caused the petitioner to plead guilty and

the petitioner is innocent. 42 Pa.C.S.A. § 9543(a)(2)(iii). As the PCRA court

relevantly indicated herein, there is no merit to Appellant's claim. Specifically,

the PCRA court indicated:

             After a defendant has entered a guilty plea, the only
      cognizable issues under the PCRA are the validity of the plea
      proceedings and the legality of sentence. Commonwealth v.
      Rounsley, 717 A.2d 537 (Pa.Super. 1998). Allegations of
      ineffective assistance of counsel in connection with entry of the
      guilty plea will serve as a basis for relief only if the ineffectiveness
      caused appellant to enter an involuntary or unknowing plea.
      Commonwealth v. Williams, 437 A.2d 1144, 1146 (Pa. 1981).
      Counsel is presumed effective. Commonwealth v. Carter, 540

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     Pa. 135, 656 A.2d 463, 465 (1995). Erroneous advice of counsel
     must prejudice the defendant to the extent that it enticed the
     defendant to plead guilty when they would have otherwise not
     have done so. Commonwealth v. Rathfon, 899 A. 2d 365, 370
     (Pa.Super. 2006). The law presumes a defendant who entered a
     guilty plea was aware of what he was doing, and thereafter, he
     bears the burden of proving otherwise. Commonwealth v.
     Stork, 737 A.2d 789, 790 (Pa.Super. 1999). Petitioner's claims
     are belied by the record.

     Voluntariness of Guilty Pleas

           At the plea hearing, [Appellant] and his counsel signed a
     Statement of Understanding of Rights under oath which was
     reviewed with him in full at the hearing. The Statement of
     Understanding of Rights set forth:

           Paragraph 4: I understand that the maximum sentence for
     the crime(s) to which I am pleading guilty/no contest is at Docket
     No. 185 of 2018 - Count 2: $25,000/10 years, Count 3: $10,000/5
     years; At Docket No. 186 of 2018 - Count 2: $5,000/2 years.

           Total: $40,000/17 years

           Paragraph 5: ... In exchange, the Commonwealth will nolle
     pros all remaining counts at both dockets, with costs on the
     defendant. The Commonwealth has no objection to the sentence
     at Docket No. 186 of 2018 running concurrent to the sentence at
     Docket No. 185 of 2018.

            Paragraph 6: I understand that the Judge is not bound by
     the terms of any plea bargain unless the judge chooses to accept
     it. The Judge will announce his/her decision at the conclusion of
     the plea colloquy which follows my signing this paper. If the
     Commonwealth agrees to make a sentencing recommendation on
     my behalf, the Judge will not be bound by this recommendation
     and I understand that I will not be permitted to withdraw my
     guilty/no contest plea if this should occur.

     See Statement of Understanding of Rights. [Appellant] and his
     counsel signed the statement, indicating their understanding of
     the maximum sentences Petitioner faced; the Judge was not
     bound by any plea agreement between [Appellant] and the
     Commonwealth; and if the Judge chose not to accept the terms of

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      any plea bargain, this would not be a basis for withdrawal of
      [Appellant’s] guilty plea. See Statement of Understanding of
      Rights.
             Moreover, the plea colloquy demonstrates the plea was
      knowing, voluntary and intelligent. In open court and under oath,
      [Appellant] acknowledged the weapon at Counts Two and Three
      of No. 185 of 2018 was a semiautomatic handgun, not a BB gun,
      and was loaded. Tr. Plea, pp. 9-11. After the legal and factual
      basis of the charges and maximum penalties he faced were read
      out loud to him, [Appellant] unequivocally pled guilty to Counts
      Two and Three of No. 185 of 2018 and Count Two of No. 186 of
      2018. Tr. Plea pp. 9-13. [Appellant] further indicated he
      understood the Judge was not bound by the terms of any plea
      bargain and/or Commonwealth sentencing recommendation. Tr.
      Plea, pp. 5, 8.
             Also, at the plea hearing [Appellant] and his counsel signed
      the reverse side of the Criminal Information, further confirming
      Petitioner understood the grading of the offenses and the nature
      and extent of the plea agreement. See Criminal Informations; Tr.
      Plea, pp. 11-12.
             Thus, the record amply demonstrates Petitioner was aware
      of, and acknowledged, the charges to which he was pleading guilty
      and the potential maximum sentences he faced. "A person who
      elects to plead guilty is bound by the statements he makes in
      open court while under oath and may not later assert grounds for
      withdrawing the plea which contradict the statements he made at
      his plea colloquy." Commonwealth v. Yeomans, 24 A.3d 1044,
      1047 (Pa. Super. 2011). No patent defect exists with regard to the
      plea colloquy. [Appellant] fails to point to performance of counsel
      which questions the reliability of the manner in which guilt was
      determined. No showing of prejudice on the order of manifest
      injustice can be established. Based upon the totality of
      circumstances, [Appellant’s] claim he entered into a defective
      plea due to ineffectiveness of counsel is wholly without merit.

Notice of Intent to Dismiss PCRA Pursuant to Pa.R.Crim. P. 907(1), filed

11/21/19, at 3-5.

      Additionally, at the guilty plea hearing, as well as in the written guilty

plea statement, Appellant specifically was informed of the rights he was giving



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up by entering the pleas and indicated that he understood all of those rights.

N.T., 8/7/18, at 4-8; Guilty Plea Statement, dated 8/7/18. Appellant stated

he understood that he would face “maximum penalties at Docket 185, Count

2, is a $25,000 and 10 years; and Count 3 is $10,000 and 5 years; and at

Docket 186, Count 2, has a maximum penalty of $5,000 and 2 years, This

totals $40,000 and 17 years.” N.T., 8/7/18, at 9. He also was informed of

the legal and factual basis of these charges and specifically pled “guilty”

thereto. Id. at 10-12. In the presence of the trial court, Appellant affixed his

signature to the Guilty Plea Statement at each docket. Id. at 11-12. The trial

court granted the Commonwealth’s request to nolle pros the remaining

counts. Id. at 11-12. Thereafter, the only request Appellant made through

his counsel was “whether the [c]ourt would consider sentencing him [at that

time].” Id. at 12. Indicating that it would need a PSI in light of the serious

nature of the crimes, the trial court declined to sentence Appellant

immediately.   Id. at 12.   Accordingly, we agree with the PCRA court that

Appellant is not entitled to relief on his inducement by counsel claim.

      However, this does not end our inquiry as Appellant additionally alleges

that trial counsel was ineffective in failing to seek to withdraw Appellant's

guilty plea prior to sentencing. Appellant avers he sought to have trial counsel

withdraw his guilty pleas, despite the favorable outcome he had received and

admission he failed to make his intentions known to the trial court at the

sentencing hearing, because he “came to the realization that he wanted to


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withdraw his guilty pleas prior to sentencing as he discovered he had been

played by defense counsel.” Appellant’s Brief at 11-12.

      We note that pre-sentence withdrawal of a guilty plea is governed by

Pennsylvania Rule of Criminal Procedure 591(A), which provides:

      (A) At any time before the imposition of sentence, the court may,
      in its discretion, permit, upon motion of the defendant, or direct,
      sua sponte, the withdrawal of a plea of guilty or nolo contendere
      and the substitution of a plea of not guilty.

Pa.R.Crim.P. 591(A). The official comment to Rule 591 provides: “After the

attorney for the Commonwealth has had an opportunity to respond, a request

to withdraw a plea made before sentencing should be liberally allowed.” Id.

cmt. However, a defendant does not have an absolute right to such relief. In

Commonwealth v. Carrasquillo, 115 A.3d 1284 (Pa. 2015), our Supreme

Court clarified that “a bare assertion of innocence is not, in and of itself, a

sufficient reason to require a court to grant” a pre-sentence motion to

withdraw. Id. at 1285. Rather, the Court concluded that:

      a defendant’s innocence claim must be at least plausible to
      demonstrate, in and of itself, a fair and just reason for
      presentence withdrawal of a plea. More broadly, the proper inquiry
      on consideration of such a withdrawal motion is whether the
      accused has made some colorable demonstration, under the
      circumstances, such that permitting withdrawal of the plea would
      promote fairness and justice. The policy of liberality remains
      extant but has its limits, consistent with the affordance of a degree
      of discretion to the common pleas courts.

Id. at 1292. Thus, the Carrasquillo Court established that trial courts possess

discretion to assess the plausibility of a defendant’s claim of innocence. In

doing so, “both the timing and the nature of the innocence claim, along with

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the relationship of that claim to the strength of the government’s evidence,

are relevant.” Commonwealth v. Norton, 201 A.3d 112, 121 (Pa. 2019)

(citation omitted). At the same time, a defendant may not directly contradict

statements he has made under oath at the time of the guilty plea, such as

that he is entering into the plea voluntarily. See, e.g., Commonwealth v.

Pier, 182 A.3d 476, 480 (Pa.Super. 2018).

     Furthermore, to establish counsel was ineffective, a PCRA petitioner

must prove that (1) the issue underlying counsel's act or omission is of

arguable merit; (2) counsel had no reasonable strategic basis for the act or

omission; and (3) the petitioner suffered prejudice. Commonwealth v.

Reyes-Rodriguez, 111 A.3d 775, 780 (Pa.Super. 2015) (en banc). To

establish prejudice in this case, Appellant must prove he would have

proceeded to trial but for counsel's error. Commonwealth v. Barndt, 74

A.3d 185, 192 (Pa.Super. 2013).       We must presume counsel rendered

adequate assistance, and the petitioner bears the burden of proving

otherwise. Reyes-Rodriguez, 111 A.3d at 780.

     Here, prior to sentencing, Appellant was apprised of his post-sentencing

and appellate rights. N.T. 9/28/18, at 4-7. When asked whether he had any

questions concerning those rights, Appellant stated he did not. Importantly,

he did not at this juncture express his now asserted innocence and desire to

withdraw his prior guilty pleas. To the contrary, when the trial court asked




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Appellant what he would like to tell the court, the following exchange

occurred:

           Appellant: I’d like to say that I take full responsibility for
      everything that happened on both dockets. What was going on
      was my in-law’s family wouldn’t allow me to see my daughter,
      because I was –I was on drugs. And—

            THE COURT: That’s not a bad reason.

            Appellant: Right. Exactly. And I –I overacted. I dumped
      my mother-in-law’s house to see if my ex and my daughter were
      there. And they weren’t. My brother-in-law was there.
            And I had a BB Gun, and I told him I needed to see my
      daughter, you know, or else shit was going to hit the fan. And
      they weren’t there, umm, so I left and went back to my spot where
      I was staying.
            And I take—I Just—I—I’m a totally different person when
      I’m on drugs. I tend to act more violent-- . . . .

N.T. 9/28/18, at 9-10.

      The conversation pertaining to Appellant’s efforts to rehabilitate himself

continued until Appellant indicated that the BB Gun was not loaded. The trial

court asked for clarification regarding the charge to which Appellant had pled

guilty, noting that this was a “very big deal.” Id. at 11-12. Upon further

examination of the police report, the trial court stated that the weapon was a

“.177 Caliber air pistol, black and chrome. Obviously made to look like a

regular handgun.” Appellant agreed with this description. Id. at 13.

      In light of the foregoing, the record clearly demonstrates that both prior

to entering his plea and prior to sentencing, Appellant admitted to committing

the acts forming the factual basis for the plea and acknowledged that he knew

and understood the factual basis for the plea, the nature of the evidence

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proffered by the Commonwealth, and the elements of the crimes charged,

which were outlined by both the Commonwealth and the trial court.        This

record evidence, and Appellant’s acknowledgement that the pleas resulted in

a favorable outcome for him, belie his current claim that his counsel had been

ineffective by duping him to plead guilty and for failing to file a motion to

withdraw those pleas. Therefore, we discern no legal error by the trial court

in dismissing his PCRA petition.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/24/2020




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