J-S51011-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                        Appellee

                   v.

RAFAEL ELIAS GRANDE,

                        Appellant                     No. 143 MDA 2014


              Appeal from the PCRA Order December 16, 2013
             In the Court of Common Pleas of Lebanon County
            Criminal Division at No(s): CP-38-CR-0000256-2012


BEFORE: BOWES, OTT, and MUSMANNO, JJ.

MEMORANDUM BY BOWES, J.:                            FILED AUGUST 21, 2014

     Rafael Elias Grande appeals from the December 16, 2013 order

denying his first PCRA petition. We affirm.

     On June 27, 2012, Appellant pled guilty to persons not to possess

firearms.   In exchange for his plea, the Commonwealth agreed to

recommend a minimum sentence of three and one-half years, a term that is

at the bottom of the standard range of the sentencing guidelines.            The

parties agreed that the sentencing court would determine the maximum

term of imprisonment following review of the presentence investigation

report and a sentencing hearing.

     The trial court iterated the factual basis of the guilty pleas as follows:

           In the early morning hours of August 16, 2011, Patrolman
     Fisher of the Lebanon City Police Department encountered
     DEFENDANT in the 200 block of North 5th Street. In his police
     report, Officer Fisher explained that DEFENDANT was holding an
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      object at his side. As he approached DEFENDANT, however, he
      realized that the object was no longer in his hand. A screening of
      the surrounding area revealed a [rifle] in the grass located near
      DEFENDANT. Patrolman Fisher noted that while the grass around
      the weapon was wet, the top side of the weapon was dry. At that
      point, he believed that the item he saw in DEFENDANT's hand
      moments earlier was the same weapon he located on the
      ground.

            A review of DEFENDANT'S criminal history by Detective
      Verna of the Lebanon City Police Department indicated that
      DEFENDANT had been convicted of a felony in another state
      which would prohibit him from possessing a firearm in the
      Commonwealth of Pennsylvania. Accordingly, DEFENDANT was
      charged with Person Not To Possess, Use, Manufacture, Control,
      Sell, or Transfer Firearms pursuant to 18 Pa.C.S. 6105(A)(1).
      The crime for which DEFENDANT was charged carries a statutory
      maximum of 10 years imprisonment.

Trial Court Opinion, 3/17/14, at 3.

      The trial court accepted the guilty plea on June 27, 2012, and on

August 22, 2012, it imposed three and one-half to eight years imprisonment.

Appellant failed to file a direct appeal; however, on April 10, 2013, he timely

filed a pro se PCRA petition raising several issues, including: 1) his guilty



2) counsel failed to file a direct appeal on his behalf.   See PCRA Petition,

4/10/13, at 2-3, 7.

      Appointed counsel filed an amended petition, and following an

evidentiary hearing in which Appellant and plea counsel both testified, on

                                                                petition. This

timely appeal followed.




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        Appellant filed a concise statement of errors complained of on appeal

pursuant to Pa.R.A.P. 1925(b), and the PCRA court issued a Rule 1925(a)

opinion.1

was ineffective for unlawfully inducing [Appellant] to plead guilty where plea




        This court has often stated,

from the grant or denial of PCRA relief requires us to determine whether the

ruling of the PCRA court is supported by the record and is free from legal

          Commonwealth v. Lesko, 15 A.3d 345, 358 (Pa. 2011).

        This review is limited to the findings of the PCRA court and the
        evidence of record. Id. We will not disturb a PCRA court's
        ruling if it is supported by evidence of record and is free of legal
        error. Id. This Court may affirm a PCRA court's decision on any
        grounds if the record supports it. Id. Further, we grant great
        deference to the factual findings of the PCRA court and will not
        disturb those findings unless they have no support in the record.
        Commonwealth v. Carter, 21 A.3d 680, 682 (Pa.Super. 2011).
        However, we afford no such deference to its legal conclusions.
        Commonwealth v. Paddy, 609 Pa. 272, 15 A.3d 431, 442
____________________________________________


1
    While Appellant asserted in his counseled PCRA petition and Rule 1925(b)

appeal, the record demonstrates that Appellant abandoned this claim during
the PCRA hearing. Specific
that counsel outline all of the issues that Appellant sought to pursue during

to pled guilty by his trial counsel because counsel refused to prepare for trial
                                                                     See N.T.
PCRA Hearing, 12/16/13, at 4. Additionally, Appellant does not level this
claim in his brief. Thus, we do not address it.



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      (2011); Commonwealth v. Reaves, 592 Pa. 134, 923 A.2d
      1119, 1124 (2007). Where the petitioner raises questions of
      law, our standard of review is de novo and our scope of review
      plenary. Commonwealth v. Colavita, 606 Pa. 1, 993 A.2d
      874, 886 (2010).

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

      Instantly, Appellant contends that his guilty plea was induced by

                                Commonwealth v. King, 57 A.3d 607, 613

(Pa. 2012), our Supreme Court reiterated the applicable legal principles

relating to the right to constitutionally effective counsel as follows:

      Appellant may only obtain relief if [he] pleads and proves by a
      preponderance of the evidence that [his] conviction resulted
      from ineffective assistance of counsel that, under the
      circumstances, so undermined the truth-determining process
      that no reliable adjudication of guilt or innocence could have
      taken place. See 42 Pa.C.S. § 9543(a)(2)(ii). The Pennsylvania
      test for ineffectiveness is, in substance, the same as the two-
      part performance-and-prejudice standard set forth by the United
      States Supreme Court, see Strickland v. Washington, 466
      U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984),
      although this Court has divided the performance element into
      two sub-parts dealing with arguable merit and reasonable
      strategy.    Thus, to succeed on an ineffectiveness claim, a
      petitioner must establish that: the underlying legal claim has
      arguable merit; counsel had no reasonable basis for her action
      or inaction; and the petitioner suffered prejudice as a result.
      See Commonwealth v. Pierce, 515 Pa. 153, 158 60, 527 A.2d
      973, 975 76 (1987). To demonstrate prejudice, the petitioner

      counsel's unprofessional errors, the result of the proceeding
                                     Strickland, 466 U.S. at 694, 104
      S.Ct. at 2068; accord Commonwealth v. Cox, 603 Pa. 223,
      243, 983 A.2d 666, 678 (2009). A reasonable probability is a
      probability sufficient to undermine confidence in the outcome of
      the proceeding. See Commonwealth v. Ali, 608 Pa. 71, 86
      87, 10 A.3d 282, 291 (2010). No relief is due, however, on any
      claim that has been waived or previously litigated, as those


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      terms have been construed in the decisions of this Court. See
      42 Pa.C.S. § 9543(a)(3).

Commonwealth v. King, 57 A.3d 607, 613 (Pa. 2012).

      As it relates to the entry of

ineffectiveness    will   not   form   a   basis   for   relief   unless   the   alleged

ineffectiveness caused the defendant to enter the plea involuntarily or

unknowingly.      See Commonwealth v. Anderson, 995 A.2d 1184, 1192

(Pa.Sup

advice was within the range of competence demanded of attorneys in

                    Id. (quoting Commonwealth v. Moser, 921 A.2d 526,

531 (Pa.Super. 2007)). In assessing a guilty plea, we review the totality of



during the PCRA hearing. Commonwealth v. Morrison, 878 A.2d 102, 107

(Pa.Super. 2005) (en banc).

                                                                       ineffectiveness

in advising him to accept the three-and-one-half-year minimum sentence

caused him to enter the guilty plea unknowingly. Essentially, he argues that



directives to attempt to negotiate a better plea agreement were tantamount

to constitutionally ineffective assistance which induced him into accepting



is due.




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      During the PCRA hearing, trial counsel testified that he met with

Appellant on at least four occasions and discussed all aspects of the case

that Appellant wished to address.     N.T. PCRA, 12/16/13, at 13-14.      For

example, Appellant advised counsel of an unidentified criminal defendant in

an unrelated case that allegedly received an eleven-to-twenty-three-month

sentence for possessing four guns. However, when counsel inquired as to




positon, Appellant was unwilling to provide the pertinent details needed to

make his case. Id. at 15. Similarly, Appellant sought to assert a defense to

the firearm violation based upon the inoperability of the rifle.   Id. at 17.



was not an element of the offense. Id. at 17-18. See Commonwealth v.

Thomas, 988 A.2d 669 (Pa. Super. 2010).

      In addition, although Appellant admitted possessing the firearm, he

informed counsel that he had no idea how he acquired the rifle that Officer

Fisher believed he observed him wield.      N.T. PCRA, 12/16/13, at 13-14.

Appellant sought to raise a defense that he had abandoned the gun before

the officer approached him. Id. at 14-15. Accordingly, prior to engaging in

plea negotiations, counsel started to formulate an argument for trial that the



was insufficient to establish that Appellant intended to exercise control over


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it in violation of 18 Pa.C.S. 6105(A)(1). Id. at 19. However, trial counsel

also explained to Appellant that he lacked confidence that Appellant could

prevail on the abandonment issue. Id. at 8. As a result of his consultations

with counsel, Appellant concluded that it was in his best interest to enter a

plea agreement even though he did not want to.           Id.   To facilitate the

desired    plea   deal,   a   three-and-one-half-year     minimum       term   of

imprisonment, which was not only near the bottom of the standard range of




the reduced agreement. Id at 11, 13-15, 16.

      Thereafter, Appellant met with trial counsel to complete the written

guilty plea colloquy that was ultimately entered in this case. Id. at 16, 19.

Counsel confirmed that Appellant never indicated a change of heart or

advised him that he desired to go to trial.      Id. at 16.    Indeed, counsel

stressed that up until the accord was struck, he was prepared to proceed to

trial if Appellant could not get the deal that he desired. Id. at 17.



trial co



potential defense.   Id. at 5, 8.   He also confirmed that when he advised

counsel that he desired to go to trial, counsel fashioned an abandonment

argument. Id. at 6. However, after realizing the futility of that position and


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the   possibility   of   facing   the   maximum      term   of   five    to   ten   years

imprisonment, Appellant sought the underlying plea agreement. Id. at 6-8.

He conf

. . . [I] then thought that it was in [my] best interest to enter a plea even

                                           Id. at 8. Appellant also testified that he




Id. at 9.2      He also acknowledged that he failed to assert a desire to

withdraw the plea during the subsequent sentencing hearing or declare his

dissatisfaction with the plea agreement that plea counsel negotiated on his

behalf. Id. at 9-10.



                                                                        lea involuntarily



competence demanded of attorneys in criminal cases.                     Nothing in the



insufficient attention to his defense prior to the plea or that he refused to

____________________________________________


2
   Appellant contended that he
representation. That assertion is inconsequential at this juncture. See
Commonwealth v. Pollard
defendant who elects to plead guilty has a duty to answer questions
truthfully. We 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




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take the case to trial



current dissatisfaction with his sentence is of no weight. Anderson, supra

at 1192, quoting Moser, supra

defendant] be pleased with the outcome of his decision to enter a plea of

guilty: All that is required is that [his] decision to plead guilty be knowingly,

voluntarily   and



intelligent and voluntary.

ineffectiveness in order to withdraw his guilty plea is unavailing.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/21/2014




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