J-S21029-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                           IN THE SUPERIOR COURT OF
                                                             PENNSYLVANIA
                            Appellee

                       v.

HERMAN OJEDA

                            Appellant                       No. 2355 EDA 2014


                    Appeal from the PCRA Order July 22, 2014
                 In the Court of Common Pleas of Lehigh County
               Criminal Division at No(s): CP-39-CR-0001163-2012
                                           CP-39-CR-0001297-2012


BEFORE: BOWES, J., JENKINS, J., and PLATT, J.*

MEMORANDUM BY JENKINS, J.:                                  FILED APRIL 28, 2015

        Appellant Herman Ojeda appeals from the order of the Lehigh County

Court of Common Pleas denying his petition filed pursuant to the Post

Conviction Relief Act (“PCRA”), 42 Pa.C.S. § 9541 et seq.         We affirm.

        On December 5, 2012, Appellant pled guilty to one count of burglary

at docket number CP-39-CR-0001163-2012 and 40 counts of burglary and

three counts of attempted burglary at docket number CP-39-CR-0001297-

2012.       N.T., 12/5/2012, at 54.            Pursuant to the plea agreement, the

Commonwealth agreed to cap the minimum sentence at 20 years’

imprisonment and to cap the maximum sentence at 40 years’ imprisonment.

Id. at 4.
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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       On January 7, 2013, the trial court sentenced Appellant to 20 to 40

years’ imprisonment.1         N.T., 3/4/2013, at 25-28.   On January 17, 2013,

Appellant filed a post sentence motion, which the trial court denied on

January 22, 2013. Appellant appealed and this Court affirmed on December

10, 2013.

       On April 23, 2014, Appellant filed this timely PCRA petition. The PCRA

court appointed counsel, who filed an amended petition on July 2, 2014. On

July 21, 2014, the PCRA court held an evidentiary hearing.         On July 23,

2014, the PCRA court denied the amended PCRA petition.          On August 13,

2014, Appellant filed a timely notice of appeal. Both Appellant and the PCRA

court complied with Pennsylvania Rule of Appellate Procedure 1925.

       The PCRA court made the following findings of fact following the July

21, 2014 evidentiary hearing:

          Amy Sonin, Esquire, an attorney in the Lehigh County
          Public Defender’s Office, represented [Appellant] in the
          above-captioned matters. During the course of her
          representation, [Appellant] met with Attorney Sonin
          numerous times and discussed the options of pursuing a
          trial or tendering a guilty plea to resolve the cases.
          Attorney Sonin spoke with the District Attorney at length
          regarding discovery. She received voluminous discovery1
          from the Commonwealth on July 16, 2012. Most of this
____________________________________________


1
 The trial court imposed a sentence of 10 to 20 years’ imprisonment for the
burglary conviction at docket no. CP-39-CR-0001163-2012. At docket no.
CP-39-CR-0001297-2012, the trial court imposed a sentence of 10 to 20
years’ imprisonment for each of the 43 convictions, which would run
concurrent to each other but consecutive to the sentence imposed at docket
no. CP-39-CR-0001163-2012.



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       discovery was reviewed with [Appellant] as well. Attorney
       Sonin related to [Appellant] that the District Attorney
       indicated that the best offer that would be extended to
       [Appellant] was capping his minimum sentence at twenty
       (20) years. [Appellant] was dissatisfied with the offer, as
       he desired at seven (7) to ten (10) year cap on his
       minimum sentence.
          1
            There was vast evidence implicating [Appellant] in
          the within matter, including, inter alia, GPS
          evidence, video from a neighbor’s camera, and a
          videotaped confession by [Appellant].

       Attorney Sonin met with [Appellant] again on September
       5, 2012 and reiterated the District Attorney’s plea offer.
       [Appellant] requested Attorney Sonin to negotiate more
       with the District Attorney and attempt to secure a cap on
       the minimum at ten (10) years. Attorney Sonin explained
       to [Appellant] that she would do her best, but that the
       District Attorney had expressed to her that he would not
       be extending a better offer to [Appellant]. On October 23,
       2012, the District Attorney provided Attorney Sonin with
       the three (3) hour long videotaped confession by
       [Appellant]. Attorney Sonin reviewed all three (3) hours of
       the confession prior to the status conference on October
       29, 2012. Attorney Sonin met with [Appellant] on October
       25, 2012, and discussed with him her twenty (20) pages of
       handwritten notes that she had taken while viewing the
       videotaped confession. At this time, Attorney Sonin was
       unable to play the video recording for [Appellant] because
       she was not able to acquire a laptop from the Public
       Defender’s Office at that time. At the status conference
       before this Court on October 29, 2012, [Appellant] was
       informed by the District Attorney that he had to make a
       choice with regard to accepting or rejecting the plea offer
       that had been extended to him.2 [Appellant] asked for
       more time to consider the plea offer and to speak with his
       family about it. He also wanted to view the videotaped
       confession. Consequently, the status conference was
       continued to November 1, 2012.
          2
            [Appellant] was informed at this time, by the
          District Attorney through Attorney Sonin, that the
          deal was going to be “pulled off the table” if
          [Appellant] did not accept same.

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        Attorney Sonin met with [Appellant] on October 31, 2012,
        so that [Appellant] could watch the videotaped confession.
        However, [Appellant] was uncooperative and refused to
        view it with her. [Appellant] wanted a seven (7) to ten
        (10) year minimum sentence that the District Attorney was
        unwilling to offer. Thereafter, at the status conference on
        November 1, 2012, [Appellant] requested new counsel,
        despite the fact that Attorney Sonin worked hard for
        [Appellant]    and negotiated a cap of the maximum
        sentence at forty (40) years. [Appellant] did not accept
        the offer on the table at that time, and a trial was
        scheduled for January 7, 2013. The District Attorney
        indicated that the offer that was extended was being
        withdrawn.

        Thereafter, [Appellant] corresponded with Attorney Sonin
        and apologized for his behavior. Attorney Sonin spoke
        with [Appellant] on November 16, 2012, and November
        21, 2012, at which time [Appellant] indicated that he
        wanted to accept the previously negotiated plea
        agreement. Attorney Sonin was successful in convincing
        the District Attorney to re-extend the offer to [Appellant].

        Then, on December 5, 2012, with the assistance of
        Attorney Sonin, [Appellant] executed a written guilty plea
        colloquy form. This Court conducted an extensive verbal
        colloquy with [Appellant] at the time of his guilty plea.
        During [Appellant’s] oral plea colloquy, [Appellant]
        acknowledged the terms of his plea agreement (N.T.
        12/5/12, pp. 2-8); denied having any drugs, alcohol or
        other medication that would affect his ability to know what
        he was doing (N.T. 12/5/12, p. 7); indicated that he read
        and understood the written plea colloquy (N.T. 12/5/12, p.
        8); stated that he understood that he did not have to give
        up his rights but could proceed to trial (N.T. 12/5/12, p.
        9); affirmed that it was his desire to enter the guilty plea
        (N.T. 12/5/12, p. 12); posed no questions to the judge
        (N.T. 12/5/12, p. 10); articulated that no one was forcing
        or threatening him to plead guilty (N.T. 12/5/12, p. 9);
        testified that no promises were made to him other than the
        plea agreement (N.T. 12/5/12, p. 9); and expressed
        satisfaction with his attorney (N.T. 12/5/12, pp. 9-10).

Trial Court Opinion, 7/23/2014, 2-4.


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      We further note that at the November 1, 2012 status conference, the

trial court informed Appellant he could retain private counsel and Appellant

stated he would search for an attorney. N.T., 11/1/2012, at 5, 8. The trial

court scheduled trial for January 7, 2013, indicating that if Appellant did not

retain new counsel, the public defender’s office would continue to represent

him. Id. at 13. Appellant did not retain new counsel and stated at his guilty

plea colloquy that he was satisfied with his appointed counsel.            N.T.,

12/5/2012, at 9-10.

      Appellant raises the following issues on appeal:

          Was [Appellant’s] guilty plea involuntary and unlawfully
          induced for the following reasons:

          A. Trial attorney was ineffective for failing to supply
             [Appellant] with discovery until 10 minutes before the
             hearing.

          B. The trial court erred in not allowing [Appellant] to get
             new counsel prior to the plea.

Appellant’s Brief at 4 (capitalization removed).

      Our standard of review from the denial of post-conviction relief “is

limited to examining whether the court’s determination is supported by the

evidence of record and whether it is free of legal error.” Commonwealth v.

Ousley,    21   A.3d   1238   (Pa.Super.2011)      (citing   Commonwealth     v.

Morales, 701 A.2d 516, 520 (Pa.1997)).

      Appellant first alleges trial counsel was ineffective for failing to supply

Appellant with discovery until 10 minutes before the guilty plea hearing.

This claim lacks merit.


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       For ineffective assistance of counsel claims, the petitioner must

establish:   “(1) that the underlying claim has merit; (2) counsel had no

reasonable strategic basis for his or her action or inaction; and (3) but for

the errors or omissions of counsel, there is a reasonable probability that the

outcome of the proceedings would have been different.” Ousley, 21 A.3d at

1244    (quoting   Commonwealth        v.   Rivera,   10    A.3d   1276,   1279

(Pa.Super.2010)). “[C]ounsel is presumed to be effective and the burden of

demonstrating ineffectiveness rests on appellant.” Id. “The failure to prove

any one of the three [ineffectiveness] prongs results in the failure of

petitioner’s claim.” Id. (quoting Rivera, 10 A.3d at 1279).

       “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.” Commonwealth v.

Hickman, 799 A.2d 136, 141 (Pa.Super.2002) (citing Commonwealth v.

Allen, 732 A.2d 582 (Pa.1999)). Whether a plea was voluntary “depends on

whether counsel’s advice was within the range of competence demanded of

attorneys in criminal cases.” Commonwealth v. Lynch, 820 A.2d 728, 733

(Pa.Super.2003) (quoting Hickman, 799 A.2d at 141).

       The PCRA court found Appellant’s claim that his counsel was ineffective

for failing to show him his videotaped confession prior to the guilty plea

lacked merit. Opinion, 7/23/2014, at 5. It reasoned counsel received the

videotaped confession on October 23, 2012.         Id.     Counsel watched the

three-hour confession and took 20 pages of handwritten notes. Id.           She

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met with Appellant on October 25, 2012.          Counsel was unable to show

Appellant the videotaped confession at that time because she could not

obtain a laptop, but she reviewed her comprehensive notes with Appellant.

Id. at 5-6. On October 31, 2012, counsel visited Appellant and attempted to

show him the videotaped confession. Id. at 6. Appellant refused to watch.

Id. The court found counsel was not ineffective because counsel reviewed

her notes of the interview with Appellant and attempted to show him the

videotape.     The record supports the PCRA court’s factual findings and we

agree that the claim lacks merit.

       Appellant next contends the trial court erred in not allowing Appellant

to obtain new counsel prior to the plea and this error caused him to enter an

involuntary and unlawful guilty plea.2 Although Appellant framed this issue

as trial court error, the PCRA court analyzed this claim as an ineffective

assistance of counsel claim. Opinion, 7/23/2014, at 6-7. The PCRA court,

however, accurately analyzed the underlying issue, i.e., whether Appellant’s

guilty plea was involuntary and unlawful.




____________________________________________


2
  This claim is arguably waived because Appellant failed to raise the claim on
direct appeal. We will address the merits, however, because Appellant
claims the trial court erred by not granting his request for new counsel, and
Appellant was represented by the Lehigh County Public Defender’s Office for
both his guilty plea and direct appeal. This is the first opportunity for
Appellant to raise this issue.




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      The PCRA provides relief following a guilty plea only if the guilty plea

was “unlawfully induced where the circumstances make it likely that the

inducement caused the petitioner to plead guilty and the petitioner is

innocent.”   42 Pa.C.S. § 9543(a)(2)(iii).    “[T]he law does not require that

[the 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 intelligently made.” Commonwealth v. Willis,

68    A.3d   997,    1001   (Pa.Super.2013)    (quoting   Commonwealth      v.

Anderson, 995 A.2d 1184, 1192 (Pa.Super.2010) (alterations in original)).

A guilty plea colloquy must “affirmatively demonstrate the defendant

understood what the plea connoted and its consequences.”          Id. at 1002

(quoting Commonwealth v. Lewis, 708 A.2d 497, 501 (Pa.Super.1998)).

After a defendant enters a guilty plea, “it is presumed that he was aware of

what he was doing, and the burden of proving involuntariness is upon him.”

Id.   (quoting      Commonwealth     v.   Bedell,   954   A.2d   1209,   1212

(Pa.Super.2008)).

      The trial court conducted an extensive colloquy of Appellant at the

December 5, 2012 guilty plea. N.T., 12/5/2012, at 6. The Commonwealth

set forth the terms of the agreement, which Appellant acknowledged.        Id.

Appellant stated he understood his rights and understood the rights he was

relinquishing by pleading guilty.   Id.   Appellant stated that no threats or




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promises were made, his plea was voluntary, and he had no questions. Id.

at 6-7. Appellant also stated that he was satisfied with counsel. Id.3 The

trial court found the written and verbal colloquy established Appellant’s plea

was voluntary, knowing, and intelligent, and he cannot now claim otherwise.

Id. at 7.    The colloquy establishes that neither the trial court nor counsel

induced Appellant to plead guilty. The trial court did not abuse its discretion

in finding Appellant entered a knowing, intelligent, and voluntary plea.

Because the plea was knowing, intelligent, and voluntary, Appellant’s claim

of trial court error fails.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/28/2015




____________________________________________


3
  Appellant is bound by the statements made at the time of the guilty plea.
See Commonwealth v. Willis, 68 A.3d 997, 1009 (Pa.Super.2013)
(appellant bound by statements made in open court under oath).



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