J-S49017-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT
                                                              OF
                                                         PENNSYLVANIA
                             Appellee

                        v.

    DAVID MICHAEL HARWI

                             Appellant                 No. 418 MDA 2018


             Appeal from the PCRA Order Entered February 9, 2018
               In the Court of Common Pleas of Schuylkill County
                Criminal Division at No: CP-54-CR-0002084-2016


BEFORE: SHOGAN, STABILE, JJ., and STEVENS, P.J.E.*

MEMORANDUM BY STABILE, J.:                     FILED: DECEMBER 31, 2018

        Appellant, David Michael Harwi, appeals from the February 9, 2018

order dismissing his timely first petition under the Post Conviction Relief Act

(“PCRA”), 42 Pa.C.S.A. §§ 9541-46. We reverse and remand.

        The record reveals that on October 9, 2016, Appellant was charged with

31 sexual offenses, including rape, rape of a child, involuntary deviate sexual

intercourse with a person under age 13, involuntary deviate sexual intercourse

with a person under age 16, statutory sexual assault by a person 8 to 11 years

older than the victim, aggravated indecent assault of a victim less than 13

years old, aggravated indecent assault of a victim less than 16 years old,

incest of a minor under age 13, incest of a minor between ages 13 and 18,

____________________________________________


*   Former Justice specially assigned to the Superior Court.
J-S49017-18


endangering the welfare of a child by a parent, corruption of a minor, indecent

assault of a person less than 13 years of age, and indecent assault of a person

less than 16 years of age.1 The charges arise from Appellant’s repeated sexual

abuse of his daughter over the span of more than six years. Appellant faced

a maximum of 355 years in jail.

       On March 31, 2017, several days before his jury trial was scheduled to

begin, Appellant entered a negotiated guilty plea whereby the Commonwealth

would recommend 15 to 30 years of incarceration followed by 10 years of

probation and move to nolle pros various charges. The trial court conducted

a plea colloquy that day and concluded Appellant entered a knowing,

intelligent, and voluntary plea. Appellant waived a presentence investigation,

and the trial court immediately imposed sentence in accord with the parties’

agreement. On July 2, 2017, the trial court found Appellant to be a sexually

violent predator and imposed lifetime registration requirements pursuant to

the Sexual Offender Notification and Registration Act (“SORNA”), 42 Pa.C.S.A.

§ 9799.10, et seq.2


____________________________________________


1 18 Pa.C.S.A. §§ 3121(a)(2), 3121(c), 3123(a)(6) and (7), 3121.1(a)(2),
3125(a)(7) and (8), 4303(b)(1) and (2), 4304(a)(1), 6301(a)(1)(ii),
3126(a)(7) and (8), respectively.

2  Pursuant to this Court’s decision in Commonwealth v. Butler, 173 A3d
1212 (Pa. Super. 2017), appeal granted, 190 A.2d 581 (Pa. 2018), the facts
relevant to the SVP determination must be submitted to a fact finder and
determined beyond a reasonable doubt. Thus, § 9799.24(e)(3) of SORNA is
unconstitutional. We must sua sponte remand to the trial court to vacate the
SVP determination in this case pursuant to Butler.

                                           -2-
J-S49017-18


       Appellant did not file a direct appeal.   He filed this timely first PCRA

petition on September 28, 2017 alleging that his guilty plea was the result of

unlawful inducement and plea counsel’s ineffective assistance.       Appointed

counsel represented Appellant at a December 1, 2017 hearing.         The PCRA

court denied relief on February 9, 2018, and this timely appeal followed.

       On appeal, Appellant claims the PCRA court erred in rejecting his claims

of ineffective assistance of counsel and an unlawfully induced plea.3

Appellant’s Brief at 4.

              In PCRA appeals, our scope of review is limited to the
       findings of the PCRA court and the evidence on the record of the
       PCRA court’s hearing, viewed in the light most favorable to the
       prevailing party. Because most PCRA appeals involve questions
       of fact and law, we employ a mixed standard of review. We defer
       to the PCRA court’s factual findings and credibility determinations
       supported by the record. In contrast, we review the PCRA court's
       legal conclusions.

Com. v. Reyes-Rodriguez, 111 A.3d 775, 779 (Pa. Super. 2015), appeal

denied, 123 A.2d 331 (Pa. 2015) (internal citations and quotation marks

omitted). To establish that counsel was ineffective, a PCRA petitioner must

prove that (1) the issue underlying counsel’s act or omission is of arguable

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

omission; and (3) that the petition suffered prejudice.       Id. at 780.    To

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


____________________________________________


3  Appellant’s Brief treats ineffective assistance and unlawful inducement as a
single issue. As we explain in the main text, they are distinct. See
Commonwealth v. Barndt, 74 A.3d 185, 191 n.9 (Pa. Super. 2013).

                                           -3-
J-S49017-18


proceeded to trial but for counsel’s error. Barndt, 74 A.3d at 192. We must

presume that counsel rendered adequate assistance; the petitioner bears the

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

       Instantly, Appellant argues that he did not understand his plea, and that

he and plea counsel were arguing during the plea colloquy. The sentencing

transcript reflects that the trial court told Appellant he had the right to

interrupt the court any time and confer with his attorney. N.T. Guilty Plea and

Sentencing, 10/10/17, at 13. Appellant did not do so. To the contrary, he

testified that he understood the charges, the facts, and the ramifications of

his plea.   As explained above, counsel procured a plea agreement limiting

Appellant’s maximum sentence to 30 years when he was facing a de facto life

sentence. The record does not afford any basis for concluding that Appellant

would have proceeded to trial but for counsel’s ineffective assistance.

       Regarding an unlawfully induced plea, a petitioner may obtain relief

“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). Appellant claimed at one point that he was innocent of rape

of a child.4    The record reflects that Appellant admitted to having sexual

intercourse with his daughter, and he admitted to using his influence as her


____________________________________________


4 “A person commits the offense of rape of a child, a felony of the first degree,
when the person engages in sexual intercourse with a complainant who is less
than 13 years of age.” 18 Pa.C.S.A. § 3121(c).


                                           -4-
J-S49017-18


father to overwhelm her psychologically.    N.T. Guilty Plea and Sentencing,

10/10/17, at 9, 11.    He also admitted having sexual intercourse with her

before she reached age 13. Id. at 12. The PCRA court therefore concluded

that Appellant is not claiming innocence. Rather, he simply “cannot accept

the law.” PCRA Court Opinion, 2/9/18, at 12. “[Appellant] admits that he did

the acts he was accused of, but denies they are a crime.”       Id.   Appellant

therefore cannot obtain relief under § 9543(a)(2)(iii).

      We have reviewed the record, the parties’ briefs, the PCRA court opinion,

and the applicable law. We conclude that he PCRA court’s February 9, 2018

opinion thoroughly and accurately addresses Appellant’s contentions.       We

reject Appellant’s assertions of ineffective assistance of counsel argument for

reasons explained above and for those explained in the court’s opinion. We

direct that a copy of the opinion be filed along with this memorandum.

Nonetheless, we reverse the order and remand to the trial court for

resentencing in accord with Butler.

      Order reversed. Case remanded. Jurisdiction relinquished.

      Judge Shogan joins the memorandum.

      President Judge Emeritus Stevens concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/31/18

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                              COURT OF COMMON PLEAS OF SCHUYLKILL COUNTY
                                           CRIMINAL DIVISION

                    COMMONWEALTH OF PENNSYLVANIA                           No. CR-2084-2016

                                         vs.

                   DAVID HARWI,
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                           This matter is before the court on the Defendant David Harwi's ("Harwi's'')

                   Petition for Post Conviction Relief filed on September 28, 2017. Harwi states that

                   he is eligible for the following relief. First, he alleges that his guilty plea was

                   unlawfully induced, in that he is innocent and that the circumstances made it likely

                   that an inducement caused him to enter a plea of guilty. Second, he alleges that he

                   suffered from ineffective assistance of counsel which also caused that result.

                          On October 9, 2016, Harwi was charged with the following 31 counts: rape

                   with forcible threat of compulsion pursuant to 18 Pa. C.S. § 312l(a)(2) (six

                   counts)(felony of the first degree); rape of a child pursuant to 18 Pa. C.S. §

                   3 121 ( c ), involuntary deviate sexual intercourse with a person less than 13 years of

                   age pursuant to 18 Pa. C.S. § 3123(a)(6); involuntary deviate sexual intercourse

                   with a person less than 16 years of age pursuant to 18 Pa. C.S. § 3123(a)(7) (3

                   counts); statutory sexual assault by a person 8-1 l years older than the victim
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                   pursuant to I 8 Pa. C.S. § 3122. l (a)(2) (3 counts); aggravated indecent assault of a

                   victim less than 13 years old pursuant to 18 Pa. C.S. § 3125(a)(7); aggravated

                   indecent assault of a victim less than 16 years old pursuant to 18 Pa. C.S. §

                   3 I 25(a)(8) (3 counts); incest of a minor under the age of 13 years pursuant to 18

                   Pa. C.S. § 4302(b)(l ); incest of a minor between the ages of 13 and 18 years old

                   pursuant to 18 Pa. C.S. § 4302(b)(2) (6 counts); endangering the welfare of a child

                   by a parent pursuant to 18 Pa. C.S. § 4304(a)(l); corruption of a minor over the

                   age of 18 pursuant to 18 Pa. C.S. § 630l(a)(1 )(ii); indecent assault of a person less

                   than 13 years old pursuant to 18 Pa. C.S. § 3126(a)(7); and indecent assault of a

                   person less than 16 years old pursuant to 18 Pa. C.S. § 3126(a)(8) (3 counts).

                          Attorney Frederick J. Fanelli, Esquire entered his appearance on behalf of

                   Harwi and at the preliminary hearing, the hearing was waived and all charges were

                   bound over for court. Harwi waived his arraignment on November 30, 2016. On

                   January 26, 2017, Harwi through his private counsel asked for a continuance for

                   additional time to prepare for trial, which was granted by our President Judge, the

                   Honorable William Baldwin, on January 30, 2017, with a notation that no further

                   continuances would be granted and that the case would be placed on the next

                   criminal court trial term. Thereafter, P.J. Baldwin scheduled jury selection for

                   March 28, 30 and 31, 2017 and for a jury trial shortly thereafter.

                          On March 28, 2017, Harwi and his counsel were present for jury selection

                   and selected a jury. On the morning of March 31, 2017, a Friday, three days

                   before his trial was scheduled to start on Monday, April 3, 2017 at 9:00AM, Harwi


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                    through his counsel indicated to the Court that he wished to enter a guilty plea

                    based on a plea bargain with the Commonwealth, in which he would receive a

                    total prison sentence of 15-30 years in a state correctional facility followed by 10

                   years of probation, and would agree to have no contact with the victim. The plea

                   paperwork indicated that Harwi was facing a maximum of 355 years in jail and

                    fines of $580,000.00. Harwi signed the Memorandum of Plea Agreement, and we

                   scheduled a hearing for 4:00PM that day.

                          The guilty plea hearing was steno graphically recorded and transcribed. At

                   the hearing, Harwi stated the following. He had had ample time to discuss the

                   matter with his attorney, and he did not have any initial questions. He stated that

                   he was not under the influence of any drugs or alcohol, and that he understood he

                   had the right to a jury trial. He agreed to enter a plea and be sentenced the same

                   day. He stated that he had filled out the plea paperwork earlier the same day, that

                   he had read it, and that he had no questions either about pleading guilty or about

                   the plea agreement. His attorney, who is a very experienced private criminal

                   practitioner in our county, added that he had reviewed the plea paperwork with

                   Harwi in detail, and Harwi did not disagree.

                          After we read the collateral consequences colloquy to Harwi, Harwi stated

                   that he still intended to plead guilty. The Commonwealth then moved to nolle pros

                   Counts 12 and 22 through 26, which we granted. We then asked Harwi how he

                   pled to each of the charges, and he pled guilty to each. During the hearing, Harwi

                   asked a question of Attorney Fanelli, and we informed Harwi that at any time


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                    during the hearing, if he wanted to have a consultation with Attorney Fanelli, he

                    was free to do so, and that we would suspend the hearing to allow him that

                    opportunity. Harwi did not request any such consultation. The Commonwealth

                   agreed to nolle pros Count 17 at the Court's request.

                           We found that all of Harwi's pleas were made knowingly, intelligently and

                   understandingly. Harwi asked to be sentenced immediately, and waived his right

                   to ask for a presentence investigation report. Neither Harwi nor his attorney had

                   anything to say in the way of allocution, and we sentenced Harwi according to the

                   terms of his plea agreement. The Commonwealth stated that the victim and her

                   mother were in agreement with the plea. We ordered an SOAB evaluation. Harwi

                   had no complaints about his attorney and indicated after his appeal rights were

                   read that he had no questions. I Iarwi did not take a direct appeal of his guilty plea

                   and sentencing.

                          On July 26, 2017, we found Harwi to be a sexually violent predator and we

                   advised Harwi of his Megan's Law registration requirements.

                          On September 28, 2017, Harwi filed a timely Motion for Post Conviction

                   Collateral Relief ("PCRA") Petition, 42 Pa.C.S. § 9545. In it, he claims that

                   Attorney Fanelli manipulated him during the sentencing and that the terms of his

                   sentence were not entered according to what he was told by Attorney Fanelli. He

                   asks for a new trial and for a correction of sentence. He requested counsel and we

                   appointed Attorney Laura J. McDonald ("Attorney McDonald") to represent him.




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                   Although the Commonwealth opposed an evidentiary hearing, we held a hearing

                   on December 1, 2017.

                          At the PCRA hearing, Harwi testified under oath, and his testimony was

                   inherently conflicting. He testified that he never understood his plea agreement,

                   and that Attorney Fanelli did not explain it to him. He stated that Attorney Fanelli

                   pressured him into signing the plea paperwork. Harwi testified that he was told

                   that Count 1, raping a child, would be nolle pressed. Harwi stated that he was not

                   guilty of raping a child and that he was arguing with his counsel about that topic

                   while the Court was conducting the guilty plea colloquy. Harwi complained that

                   he did not have much time to review the plea deal that day, and also that his

                   attorney pressured him to sign it. Harwi explained that he did not want to go to

                   trial because it would be more punishment for his daughter. Also Harwi did not

                   have the funds to pay Attorney Fanelli for a trial. Then, Harwi argued that he was,

                   in fact, innocent of not only the rape charge, but of all the charges. Finally, Harwi

                   argued that his plea should be vacated because he was told that all of the sentences

                   would run concurrently.

                          On cross examination, Harwi said he was remorseful from the beginning

                   and did not want to require the victim to testify against him, but yet maintained his

                   innocence, particularly on the rape charge. Harwi admitted that he begged his

                   counsel to get a plea deal, and said that Attorney Fanelli told Harwi that he would

                   get a sentence of 5-10 years and that the rape charge would be dropped. Harwi did

                   not recall pleading guilty to rape during the guilty plea hearing and did not recall


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                    the Court asking him to plead guilty to rape. Harwi admitted to seeing

                    photographs of himself prior to the preliminary hearing and also making a

                    confession to the police. Harwi stated that Fanelli advised him that Harwi did not

                    have a good chance of success in front of a jury, and that Fanelli gave him a

                    threatening letter about accepting the plea offer, which Fanelli required Harwi to

                   sign and date. Finally, Harwi stated that he answered falsely to the Court about his

                   guilt because he was under pressure and upset at the time.

                          Harwi had no further witnesses or evidence in support of his PCRA

                   petition. The Commonwealth called Attorney Fanelli to testify. Fanelli testified in

                   great detail as to his frequent meetings and consultations with Harwi throughout

                   the case, from prior to the preliminary hearing until Harwi's sentencing, offering

                   that he spent more time with Harwi than he usually did with other clients because

                   Harwi was a "needy client." Fanelli reviewed the evidence against Harwi, which

                   included photographs which Harwi admitted to the police were of the victim, and

                   Harwi's verbal and written confessions.

                          Throughout the case, Fanelli advised Harwi that his best chance of not

                   spending his life in prison was to accept a plea bargain. Fanelli told Harwi that he

                   could get 40 to 80 years in prison, and that Harwi might be &S years old before he

                   was released. Fanelli told Harwi that jurors would be revolted by the photographs

                   and would never accept any defense to this aberrant behavior. Harwi had

                   corroborated everything the victim said in his statements. The only defense Harwi

                   had to the evidence was to accuse the victim of lying, or to somehow deny that it


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                    was she, neither of which defenses was acceptable or which would have a chance

                    of convincing a jury that Harwi was innocent. Fanelli believed it was in Harwi's

                    best interest to accept a plea bargain.

                           Throughout the case, no matter what the discussion, Harwi insisted to

                    Fanelli that Harwi was innocent of rape because the victim was a willing

                   participant. No matter how many times Attorney Fanelli explained the Jaw to

                   Harwi, that a person under 16 years of age cannot be said to consent, Harwi would

                   not accept it. Fanelli observed that Harwi treated the victim as if she was his

                   girlfriend.

                           Fanelli and Harwi reviewed the evidence and the chances of acquittal

                   versus conviction. Fanelli discussed filing a motion to suppress Harwi's written

                   confession to the police, in which Harwi admitted to the charges, but that such a

                   motion would be meritless because Harwi had been given his Miranda warnings

                   prior to giving the statement. Harwi had also given a verbal statement in which he

                   corroborated the victim.

                          Fanelli received a preliminary plea bargain offer from the Commonwealth

                   of a total of 15�40 years which he took to Harwi, but Harwi would not accept it

                   because he persisted in believing he had done nothing wrong ..

                          Fanelli wrote a letter to Harwi dated January 26, 2017, which was

                   introduced into evidence at the hearing as Commonwealth's Exhibit l. The letter

                   sets forth a second and final offer by the Commonwealth of 15-30 years followed

                   by ! 0 years of probation. Harwi likewise initially rejected this offer. Fanelli told


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                   Harwi that the Commonwealth had made an important concession in its second

                   and final offer, that it was a big move to reduce the maximum sentence by 10

                   years.

                            Fanelli was prepared to go to trial and selected the jury. At the time of jury

                   selection, Harwi indicated to Fanelli that Harwi did not want to make the victim

                   testify at a trial, and that he was finally ready to plead guilty. Harwi and Fanelli

                   did not know whether the Commonwealth's offer was still on the table. Fanelli

                   said he would try to get the same plea offer; Fanelli approached the

                   Commonwealth and told them that Harwi was finally ready to plead.

                            Fanelli was able to get the same bargain, and told Harwi that the

                   Commonwealth was agreeable and that was the best offer he was going to get.

                   Harwi continued to tell Fanelli that he was not guilty ofrape for the above-stated

                   reasons. Fanelli explained that if a court heard that, Harwi was going to get what

                   was effectively a life sentence for his lack of remorse, because he would not get

                   out of prison until he was age 85. Finally, Harwi agreed to plead guilty to that

                   charge as well as the other charges.

                            Fanelli went over the multi-page paperwork in detail with Harwi, and had

                   him initial and sign it. Harwi continued to take the position that he was not guilty

                   because he did not accept the law. Fanelli explained that if Harwi did not plead

                   guilty, they would go to trial. Harwi agreed to plead.

                            At the guilty plea colloquy before this Court, Fanelli believed that his client

                   understood what was going on. Every time Harwi kept going back to the issue of


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                    consent, Fanelli told him that they would have to go to trial if Harwi said that to

                    the Court. Harwi agreed to plead guilty rather than go to trial.

                           After Harwi was sentenced and the hearing concluded, Harwi never told

                    Fanelli that Harwi did not understand what had happened. Fanelli concluded his

                   testimony by reiterating that given the evidence, which Fanelli explored with the

                   police prior to the preliminary hearing, including Harwi's confessions, the

                   photographs, and the Commonwealth's and Harwi's wish to shield the victim from

                   further trauma, Harwi chose not to fight the charges and to enter a guilty plea.

                   Fanelli observed that throughout the case, Harwi was defiant of the charges and

                   outraged at the Commonwealth's offer, believing the prison time to be overly

                   harsh and long. Ultimately, it was up to Harwi to either choose to have a trial or to

                   plead guilty. Together they weighed the risks and consequences, and discussed the

                   odds and possibilities. Harwi knew the choices and he decided to accept the plea

                   offer, which was in Fanelli's mind a gift.

                          The parties filed briefs, which we have reviewed. We first address the

                   Defendant's allegation that trial counsel was ineffective. Ineffective assistance of

                   counsel may constitute grounds for post conviction relief if the ineffectiveness so

                   undermined the truth-determining process that no reliable adjudication of guilt or

                   innocence could have taken place. 42 Pa.C.S.A. §9543(a)(2)(ii). "In order to

                   establish a claim of ineffective assistance of counsel under the [Post Conviction

                   Relief Act], a defendant must plead and prove the following: (I) that the

                   underlying issue is of arguable merit; (2) that counsel had no reasonable basis


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                    designed to effectuate his client's interests for the act or omission in question; and

                    (3) prejudice; i.e., but for counsel's ineffectiveness, there is a reasonable

                    probability that the outcome of the proceedings would have been different."

                    Commonwealth v. Marshall, 812 A.2d 539, 545 (Pa. 2002), citing Commonwealth

                    v. Kimball, 555 Pa. 299, 724 A.2d 326, 333 (1999).

                           In his brief, Harwi argues that he did not understand the plea and that given

                    the short period of time he had to review the plea paperwork, that he was not fully

                    aware of what charges he was pleading guilty to until after he received the

                    sentencing order. We reject that argument. The second offer of 15-30 years

                    followed by 10 years of probation was first presented to Harwi in January of 2017.

                    He did not plead guilty until March 31, 2017. We found credible Attorney

                    Fanelli's testimony that he reviewed the plea offer with Harwi and recommended

                    that he accept it as his best possible option. It was not until the pressure of an

                    impending jury trial that Harwi finally decided to accept the offer. Our guilty plea

                    colloquy was detailed and Harwi had opportunity to ask questions and consult

                    with his attorney during the hearing. He had no questions either during the

                    colloquy or during the sentencing. He did not appear to be confused or unable to

                    comprehend the proceedings. We found that he entered his pleas knowingly,

                    voluntarily and understandingly.

                           If Harwi did not understand what he was doing, then he lied to this Court

                    under oath:

                                  The longstanding rule of Pennsylvania law is that a defendant


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                                      may not challenge his guilty plea by asserting that he lied under
                                      oath, even if he avers that counsel induced the lies. A person
                                      who elects to plead guilty is bound by the statements he makes
                                      in open court while under oath and he may not later assert
                                      grounds for withdrawing the plea which contradicts the
                                      statements he made at his plea colloquy.

                    Commonwealth v. Turetsky, 925 A.2d 876, 881 (Pa. Super. 2007) (further

                    quotations omitted). Further:

                                     A criminal 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 the prompting of counsel.

                    Id. (further quotation omitted). During the plea process,

                                     (the] criminal defendant's right to effective counsel
                                     extends to the plea process, as well as during trial.
                                     However, allegations of ineffectiveness in connection
                                     with the entry of a guilty plea will serve as basis for
                                     relief only if the ineffectiveness caused the defendant
                                     to enter an involuntary or unknowing plea.

                    Commonwealth v. Wah, 42 A.3d 335, 338 (Pa. Super. 2012) (quotation omitted).

                    "The prejudice required to prevail on a claim of counsel's ineffectiveness during

                    the plea process 'is similar to the "manifest injustice" standard applicable to all

                    post-sentence attempts to withdraw a guilty plea.'" Commonwealth v. Lee, 2017

                    WL 3142534 at 2 (Pa. Super. 2017) (unreported) (quoting Turetsky, 925 A.2d at

                    881).

                             The evidence from the hearing leads to the undeniable conclusion that

                    Harwi knew and understood the offer and the sentence, and chose to accept that

                    offer, and plead guilty, to all of the charges which were not dismissed, in order to


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                     avoid a jury trial. Harwi failed to present any evidence that he was offered some

                    other plea bargain with concurrent sentences, other than his own testimony which

                    conflicted with his testimony at the guilty plea colloquy. Moreover, all but two of

                    the sentences run concurrently, and all add up lo the term which Harwi was

                    promised, 15-30 years imprisonment with 10 years of probation. We see no

                    manifest injustice in Harwi' s sentence as compared to the promised plea bargain,

                    nor do we find any credible evidence that Attorney Fanelli communicated an

                    incorrect pica bargain to Harwi.

                           Harwi also failed to present any credible evidence that his attorney was

                    ineffective. The fact that Harwi cannot accept the law, a position which Harwi

                    continues to assert to this day (even with his PCRA attorney during an off-the-

                    record discussion during the PCRA hearing), is not a basis for granting his PCRA

                    request and vacating his sentence and returning his caseto the trial list. Therefore,

                    his claim that he entered a guilty plea when he was innocent is not a claim of

                    arguable merit. Harwi admits that he did the acts he was accused of, but denies

                    they are a crime. We find that Attorney Fanelli 's advice that Harwi accept the

                    second plea ofter, was made by Fanelli in Harwi's best interests, and that there

                    were no errors made by Attorney Fanelli that would have caused a different

                    outcome in the proceedings by a reasonable probability.

                           There is nothing in the guilty plea colloquy which tends to show that Harwi

                    was not in full agreement with his plea bargain. If we had discerned that he was

                    not in full agreement, we would not have accepted his guilty plea. Nor can we find


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                                     .e
                    any manifest injustice in declining to allow Harwi to withdraw his plea. Harwi

                    made a decision to accept the plea offer and plead guilty and to be sentenced

                    immediately in order to avoid a jury trial. It is an everyday occurrence for criminal

                    defendants to weigh the options and make a decision which is in what they believe

                    to be their best interests, with and upon the advice of counsel, on the eve of trial.

                    We agree that Harwi was indeed fortunate to receive such an offer, given the

                    charges and the evidence against him. We find no evidence that Attorney Fanelli

                    was ineffective.

                           Accordingly, we enter the following:




                                                               13
Page 1   of   1         Schuylkill County Government




                                      .9
                              COURT OF COMMON PLEAS OF SCHUYLKILL COUNTY
                                           CRIMINAL DIVISION


                   COMMONWEALTH OF PENNSYLVANIA,                              CP-54-CR-2084-2016
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                                                            ORDER OF COURT

                  DOLBIN, J.

                        AND NOW, this            , -,:t_.   day of February, 2018, it is hereby ORDERED and

                  DECREED that Defendant's Petition for Post Conviction Relief is DENIED and

                  DISMISSED.



                                                            BY THE COURT:

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