J-S31010-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                         Appellee

                    v.

AMILCAR RIVAS-RIVERA,

                         Appellant                   No. 1926 MDA 2014


                Appeal from the PCRA Order October 31, 2014
              In the Court of Common Pleas of Lancaster County
                          Criminal Division at No(s):
                           CP-36-CR-0000099-2012
                           CP-36-CR-0000100-2012
                           CP-36-CR-0000101-2012
                           CP-36-CR-0000102-2012
                           CP-36-CR-0000108-2012
                           CP-36-CR-0000120-2012


BEFORE: BENDER, P.J.E., ALLEN, J., and WECHT, J.

MEMORANDUM BY BENDER, P.J.E.:                          FILED JUNE 19, 2015

      Appellant, Amilcar Rivas-Rivera, appeals from the October 31, 2014

order denying his petition for relief filed under the Post Conviction Relief Act

(PCRA), 42 Pa.C.S. §§ 9541-9546. Appellant raises one claim of ineffective

assistance of counsel. After careful review, we affirm.

      The PCRA court summarized the factual and procedural history of this

case as follows:

            On February 12, 2013[, Appellant], Amilcar Rivas-Rivera,
      entered an open plea of guilty before this [c]ourt on 54 felony
      charges spread over five criminal informations. [Appellant’s]
      plea stems from a spree of burglaries taking place during the
      months of September and October 2011 throughout Lancaster
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      County. By the conclusion of the investigation[, Appellant] and
      his co-conspirators were linked to 30 separate burglaries over a
      period of just 44 nights. Attorney Elizabeth Low represented
      [Appellant] at all times leading up to and including the date of
      his proffered plea. While [Appellant’s] [g]uilty [p]lea was non-
      negotiated as to the exact sentence, an agreement was made
      between the [p]arties limiting [Appellant’s] overall exposure
      under the guidelines. With the proposed agreement in mind,
      [Appellant] was sentenced to a period of incarceration [of] not
      less than 15 years, nor more than 30 years.

      …

             On February 6, 2014[, Appellant] filed a [p]ro-[s]e PCRA
      petition with this Court.      Counsel was appointed and an
      evidentiary hearing was held on the matter.         Prior to the
      hearing, discrepancies evolved as to the ultimate thrust of
      [Appellant’s] argument.      Through a subsequent [a]mended
      [p]etition, and [Appellant’s] own testimony, it was concluded
      that [Appellant’s] claim rests on allegations of ineffective
      assistance of counsel resulting in an involuntary and unknowing
      plea pursuant [to] 42 Pa.C.S. § 9543(a)(2)(ii).

PCRA Court Opinion (PCO), 10/31/14, at 1-2 (footnotes and citations to the

record omitted). Specifically, Appellant alleged in his amended petition, and

at the PCRA hearing, that his plea was involuntary and unknowing because it

was premised on Attorney Low’s inaccurate claim that if he pled guilty, the

Commonwealth would withdraw several of the charges pending against him.

However, those “counts were not withdrawn and [Appellant] pled guilty and

was sentenced thereon.” Amended Petition, 4/7/14, at 1 (unnumbered).

      On October 31, 2014, the PCRA court issued an order and opinion

denying Appellant’s petition. He filed a timely notice of appeal, as well as a

timely Pa.R.A.P. 1925(b) concise statement of errors complained of on

appeal. Herein, Appellant raises one issue for our review: “Whether guilty


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plea counsel was ineffective in: a) inducing her client to plead guilty on an

unrealized promise that certain charges would be withdrawn; or, b) failing to

ensure that the Commonwealth performed the promise made to her client.”

Appellant’s Brief at 4.

      In assessing Appellant’s claim, we begin by noting that,

      [o]ur review of a PCRA court's decision is limited to examining
      whether the PCRA court's findings of fact are supported by the
      record, and whether its conclusions of law are free from legal
      error. [Our] scope of review is limited to the findings of the PCRA
      court and the evidence of record, viewed in the light most
      favorable to the prevailing party at the PCRA court level. The
      PCRA court's credibility determinations, when supported by the
      record, are binding on this Court. However, this Court applies a
      de novo standard of review to the PCRA court's legal
      conclusions.

Commonwealth v. Johnson, 51 A.3d 237, 242-243 (Pa. Super. 2012)

(internal citations and quotation marks omitted).

      Additionally,

      [a] criminal defendant has the right to effective counsel during a
      plea process as well as during trial. A defendant is permitted to
      withdraw his guilty plea under the PCRA if ineffective assistance
      of counsel caused the defendant to enter an involuntary plea of
      guilty.

            We conduct our review of such a claim in accordance
         with the three-pronged ineffectiveness test under section
         9543(a)(2)(ii) of the PCRA, 42 Pa.C.S.A. § 9543(a)(2)(ii).
         The voluntariness of the plea depends on whether
         counsel's advice was within the range of competence
         demanded of attorneys in criminal cases.

Commonwealth v. Rathfon, 899 A.2d 365, 369 (Pa. Super. 2006)

(internal citations and quotation marks omitted).



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     Here, Appellant contends that his plea counsel, Attorney Low, acted

ineffectively by incorrectly advising him that if he pled guilty, the

Commonwealth would withdraw several of the charges pending against him.

However, at the PCRA hearing, Attorney Low testified that prior to

Appellant’s plea, she discussed “nolle prossessing certain counts” with the

Commonwealth, but “was told each time that was not a possibility.”          N.T.

PCRA Hearing, 7/11/14, at 6.      Attorney Low was then asked if she told

Appellant that certain charges would be “nolle prossed” or “removed” in

some manner if he entered a guilty plea, to which Attorney Low replied, “I

don’t believe so.”    Id. at 7.   Based on this testimony, the PCRA court

concluded that Attorney Low “never informed [Appellant] that [certain

charges] would be dropped” if he pled guilty.        PCO at 5 (citation to the

record    omitted).    Because    the    record   supports   the   PCRA   court’s

determination, it is binding on this Court. Johnson, 51 A.3d at 242-243.

         We also point out that Attorney Low testified that she explained to

Appellant each count to which he was pleading guilty. N.T. PCRA Hearing at

9. Each of those charges was listed in the written guilty plea colloquy, and

Appellant signed at the bottom of the list. Id. Attorney Low stated that she

did not recall Appellant having any questions about the written plea

colloquy. Id. at 10. At the oral plea proceeding, all of the charges to which

Appellant was pleading guilty were once again stated to him, and Appellant

indicated that he understood them. N.T. Guilty Plea, 2/12/13, at 3-4, 6-11.


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Based on this record, the PCRA court concluded that Appellant failed to

prove that Attorney Low’s conduct caused him to enter an involuntary plea.

See PCO at 6-7.        We ascertain no abuse of discretion in the court’s

determination.

     Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/19/2015




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