J-S53037-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,            :      IN THE SUPERIOR COURT OF
                                         :            PENNSYLVANIA
                  Appellee               :
                                         :
           v.                            :
                                         :
MOSES C. HENRIQUES,                      :
                                         :
                  Appellant              :           No. 739 MDA 2015

                Appeal from the Order entered on April 20, 2015
              in the Court of Common Pleas of Lancaster County,
                Criminal Division, No. CP-36-CR-0004500-2009

BEFORE: DONOHUE, OTT and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                   FILED NOVEMBER 13, 2015

      Moses C. Henriques (“Henriques”) appeals from the Order denying his

first Petition for relief filed pursuant to the Post Conviction Relief Act

(“PCRA”). See 42 Pa.C.S.A. §§ 9541-9546. We affirm.

      The PCRA court set forth the relevant underlying procedural history as

follows:

      On July 11, 2009, the Commonwealth filed a [Criminal]
      Complaint against [Henriques], charging him with possession of
      cocaine with intent to deliver.     [Henriques was found in
      possession of approximately 125 grams of cocaine.] On July 28,
      2009, attorney Barry Goldman (“Goldman”) was appointed to
      represent [Henriques]. A preliminary hearing was set to occur
      on October 1, 2009[;] however, [Henriques] chose to waive the
      preliminary hearing in order to explore the possibility of
      cooperating with law enforcement in exchange for reduced
      charges.    Goldman filed two continuances on [Henriques’s]
      behalf, dated January 19, 2010[,] and April 13, 2010,
      respectively, pending the Commonwealth’s decision with regard
      to [Henriques’s] cooperation.     On September 30, 2010,
      [Henriques] requested a new attorney, raised a [Pennsylvania
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     Rule of Criminal Procedure] 600 issue, and signed a continuance
     form in order to allow him the opportunity to obtain new
     counsel.    On that same date, Goldman was permitted to
     withdraw as counsel.

     The [trial c]ourt appointed attorney Andrew Cooper (“Cooper”)
     as [Henriques’s] new counsel on October 22, 2010.              On
     November 8, 2010, Cooper submitted a continuance form in
     order to more adequately prepare for trial, since the trial term
     was scheduled approximately two weeks after the matter had
     been assigned to him. Cooper filed a second continuance form
     on February 15, 2011[,] in order to allow [Henriques] the
     opportunity to continue cooperating with the [Drug Enforcement
     Agency]. Subsequently, during trial preparation in July 2011,
     Cooper discovered a conflict in his representation of [Henriques],
     and was permitted to withdraw as counsel.

     [Henriques] was appointed his third and final counsel, attorney
     Janice Longer (“Longer”)[,] in September 2011. Around that
     same time, [Henriques] had been released from prison and
     Longer was unable to locate him. Accordingly, Longer attended
     hearings on behalf of [Henriques] and submitted a total of three
     continuance forms, dated September 9, 2011, October 31, 2011,
     and December 22, 2011, respectively, in the hopes that she
     would be able to contact [Henriques] prior to the issuance of a
     bench warrant. When [Henriques] failed to appear for his trial
     on March 8, 2012, a bench warrant was issued[,] and he was
     arrested on May 2, 2012. Ultimately, [Henriques] pled guilty to
     the possession with intent to deliver charge on July 6, 2012[,]
     under negotiated terms.

PCRA Court Opinion, 4/20/15, at 1-2 (footnote omitted).

     Following the entry of the plea, sentencing was deferred to allow

Longer to determine whether there was a viable Rule 600 claim. Thereafter,

Longer filed a Motion to Withdraw Henriques’s guilty plea and a Motion to

Withdraw as Counsel.     The trial court granted the Motion to Withdraw

Henriques’s guilty plea but denied the Motion to Withdraw as Counsel. On

December 14, 2012, a Rule 600 Motion was filed.


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      On January 8, 2013, the parties were prepared to argue the Rule 600

Motion, and thereafter proceed to trial. Following a discussion with Longer,

Henriques decided to again plead guilty to the previously negotiated offer.

Following oral and written colloquies, the trial court accepted the negotiated

plea and sentenced Henriques to three and one-half to seven years in

prison, with credit for time served. Henriques did not file a direct appeal.

      On February 20, 2013, Henriques filed a pro se Motion, raising various

claims.     The PCRA court treated this Motion as Henriques’s first PCRA

Petition.    The PCRA court appointed Henriques counsel, who filed an

amended PCRA Petition.       Following a hearing, the PCRA court denied

Henriques’s PCRA Petition. Henriques filed a timely Notice of Appeal.

      On appeal, Henriques raises the following question for our review:

      Whether the [PCRA] court erred in denying [Henriques’s]
      amended PCRA [Petition] when [Henriques] was entitled to the
      withdrawal of his guilty plea and the dismissal of the criminal
      charges since [all of his] previous counsel were ineffective by
      failing to preserve his rights to a speedy trial under Pa.R.Crim.P.
      600?

Brief for Appellant at 4.

             [T]his Court’s standard of review regarding an order
      denying a petition under the PCRA is whether the determination
      of the PCRA court is supported by the evidence of record and is
      free of legal error.    The PCRA court’s findings will not be
      disturbed unless there is no support for the findings in the
      certified record.

Commonwealth v. Cintora, 69 A.3d 759, 762 (Pa. Super. 2013) (citation

omitted).



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      Henriques contends that all of his prior counsel were ineffective for

failing to guarantee his right to a speedy trial under Rule 600, causing the

entry of an involuntary guilty plea.     Brief for Appellant at 14, 16, 23.

Henriques argues that his speedy trial rights were violated because the

Commonwealth filed its Criminal Complaint on July 11, 2009, but the case

was not resolved until January 8, 2013.      Id. at 17; see also id. at 22

(wherein Henriques argues that due to some continuances, he should have

been brought to trial by December 1, 2011). Henriques further argues that

the PCRA court’s finding that his trial commenced on July 6, 2012, the date

of his initial guilty plea, was erroneous because the court told him that he

could withdraw his plea at a later date. Id. at 23. Henriques claims that he

only signed one continuance form, and that his prior counsel all signed the

various continuances without discussing the matter with him. Id. at 18-20,

21-23.   Henriques asserts that the actions of his prior counsel in delaying

trial, because they believed it was in his best interest to cooperate with the

police and ultimately plead guilty, demonstrated ineffectiveness. Id. at 17-

20, 21, 23-24.

      To succeed on an ineffectiveness claim, Henriques must demonstrate

by the 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
      for counsel’s ineffectiveness, there is a reasonable probability
      that the outcome of the proceedings would have been different.



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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
      show that counsel’s deficient stewardship resulted in a manifest
      injustice, for example, by facilitating entry of an unknowing,
      involuntary, or unintelligent plea. The voluntariness of the plea
      depends on whether counsel’s advice was within the range of
      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
      amounting to “manifest injustice.” A plea rises to the level of
      manifest injustice when it was entered into involuntarily,
      unknowingly, or unintelligently. A defendant’s disappointment in
      the sentence imposed does not constitute “manifest injustice.”

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:




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     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 Pa.R.Crim.P. 590, cmt.

            The guilty plea colloquy must affirmatively demonstrate
     that the defendant understood what the plea connoted and its
     consequences. Once a defendant has entered a plea of guilty, it
     is presumed that he was aware of what he was doing, and the
     burden of proving involuntariness is upon him. In determining
     whether a guilty plea was entered knowingly and voluntarily, ...
     a court is free to consider the totality of the circumstances
     surrounding the plea. Furthermore, nothing in the rule precludes
     the supplementation of the oral colloquy by a written colloquy
     that is read, completed, and signed by the defendant and made
     a part of the plea proceedings.

Bedell, 954 A.2d at 1212-13 (citations and quotation marks omitted).

     Here, prior to the entry of the plea, the trial court discussed with

Henriques hisRule 600 Motion. N.T., 1/8/13, at 2-11. However, before the

trial court ruled on the Motion, Henriques decided to forego his Motion and

plead guilty. Id. at 11-13; see also Written Plea Colloquy, 1/8/13, at 1-7.

During the plea colloquy, Henriques stated that he understood the English



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language,   and   that   while   he    was   taking   prescribed    medication   for

depression, the medication did not affect his ability to understand the

colloquy.   See Written Plea Colloquy, 1/8/13, at 1.               Henriques stated

affirmatively that he understood the nature of charges to which he was

pleading guilty; he committed the crime to which he was pleading guilty; he

understood that he had an absolute right to trial by a jury; he understood

that he is presumed innocent until proven guilty; he was informed of the

maximum range of sentences and/or fines that could be imposed; and that

the trial court is not bound by the terms of the plea agreement until the

court accepts such plea agreement. See id. at 1-4. Henriques also affirmed

that by pleading guilty, he was giving up his right to file any pre-trial

motions. See Written Plea Colloquy, 1/8/13, at 2; see also N.T., 1/8/13, at

10-11 (wherein Henriques acknowledged that he would waive his Rule 600

issue if he pled guilty); Written Plea Colloquy, 1/8/13, at 5-6 (wherein

Henriques stated that by pleading guilty, his only appealable issues pertain

to jurisdiction, the voluntariness of his plea, and sentencing claims).

Henriques additionally indicated that no one had forced or threatened him to

plead guilty, and that he willingly entered the plea.          See Written Plea

Colloquy, 1/8/13, at 5, 7; see also N.T., 1/8/13, at 12-13, 14-15 (wherein

Henriques confirmed the statements he made in the written plea colloquy).

Thereafter, the trial court accepted the plea bargain and imposed the

agreed-upon sentence. N.T., 1/8/13, at 15-17.



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      Considering the totality of the circumstances, the record reflects that

Henriques voluntarily, knowingly, and intelligently tendered his guilty plea.

See Commonwealth v. Stork, 737 A.2d 789, 790-91 (Pa. Super. 1999)

(stating that “[a] defendant is bound by the statements he makes during his

plea colloquy, and may not assert grounds for withdrawing the plea that

contradict statements made when he pled.”) (citation omitted).            Indeed,

Henriques explicitly understood that he was giving up his right to file any

pre-trial motions by pleading guilty. See Written Plea Colloquy, 1/8/13, at

2; see also N.T., 1/8/13, at 10-11.     Thus, Henriques tendered his guilty

plea under his own volition, despite the Rule 600 issue,1 and has not

demonstrated    prejudice   amounting    to   manifest   injustice   to    justify

withdrawing his guilty plea.   Based upon the foregoing, we conclude that

Henriques’s ineffectiveness claim is without arguable merit.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/13/2015




1
  In its Opinion, the trial court addressed Henriques’s underlying Rule 600
claim and determined that it is without merit. See Trial Court Opinion,
4/20/15, at 3-5. Specifically, the trial court found that Henriques had
requested numerous continuances that delayed the proceedings. See id.


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