J-S29044-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    BIENVENIDO RODRIGUEZ, JR.                  :
                                               :
                      Appellant                :   No. 2137 EDA 2016

                   Appeal from the PCRA Order June 20, 2016
                 In the Court of Common Pleas of Lehigh County
              Criminal Division at No(s): CP-39-CR-0005468-2013,
               CP-39-CR-0005478-2013, CP-39-CR-0005480-2013


BEFORE:      LAZARUS, SOLANO, JJ., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                             FILED JUNE 23, 2017

        Appellant, Bienvenido Rodriguez, Jr., appeals from the June 20, 2016,

order entered in the Court of Common Pleas of Lehigh County denying his

first petition filed under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A.

§§ 9541-9546, following an evidentiary hearing. After a careful review, we

affirm.

        The relevant facts and procedural history are as follows:      Appellant

was arrested in connection with the robbery of several stores, and on April

28, 2014, represented by assistant public defender David D. Ritter, Esquire,

Appellant entered a negotiated guilty plea to six counts of robbery, one

count of possession of drug paraphernalia, and one count of criminal
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
J-S29044-17



conspiracy. The trial court ordered a pre-sentence investigation report and,

following a sentencing hearing, on July 10, 2014, the trial court imposed an

aggregate sentence of ten years to twenty-five years in prison.1 Appellant

filed a post-sentence motion for reconsideration of his sentence, which the

trial court denied.     Appellant filed a timely notice of appeal; however, on

March 23, 2015, Appellant filed a counseled praecipe for discontinuance of

the appeal, and accordingly, this Court marked the appeal discontinued on

that same date.

       On or about June 15, 2015, Appellant filed a timely pro se PCRA

petition, the court appointed new counsel, and on October 30, 2015, counsel

filed an amended PCRA petition. On January 6, 2016, the matter proceeded

to a PCRA evidentiary hearing at which guilty plea counsel and Appellant

testified.   By order entered on June 20, 2016, the PCRA court denied

Appellant’s PCRA petition, and this timely, counseled appeal followed. The

PCRA court directed Appellant to file a Pa.R.A.P. 1925(b) statement,

Appellant timely complied, and the PCRA court filed a Pa.R.A.P. 1925(a)

opinion.




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1
  In its opinion, the trial court indicated “[t]he 10 year minimum was per a
binding plea agreement reached by the parties.” Trial Court Opinion, filed
10/14/14, at 1.



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      On appeal, Appellant presents five issues alleging the ineffective

assistance of guilty plea counsel resulting in the entry of an unknowing and

involuntary guilty plea.

      Initially, we note:

            When reviewing the denial of a PCRA petition, we must
      determine whether the PCRA court’s order is supported by the
      record and free of legal error. Generally, we are bound by a
      PCRA court’s credibility determinations. However, with regard to
      a court’s legal conclusions, we apply a de novo standard.

Commonwealth v. Johnson, --- Pa. ---, ---, 139 A.3d 1257, 1272 (2016)

(quotation marks and quotations omitted).

      Furthermore,

            In order to be eligible for PCRA relief, the petitioner must
      prove by a preponderance of the evidence that his conviction or
      sentence resulted from one or more of the enumerated
      circumstances found in Section 9543(a)(2), which includes the
      ineffective assistance of counsel. 42 Pa.C.S.[A.] § 9543(a)(2)(i).
            It is well-established that counsel is presumed effective,
      and to rebut that presumption, the PCRA petitioner must
      demonstrate that counsel’s performance was deficient and that
      such deficiency prejudiced him. To prevail on an ineffectiveness
      claim, the petitioner has the burden to prove that (1) the
      underlying substantive claim has arguable merit; (2) counsel
      whose effectiveness is being challenged did not have a
      reasonable basis for his or her actions or failure to act; and (3)
      the petitioner suffered prejudice as a result of counsel’s deficient
      performance. The failure to satisfy any one of the prongs will
      cause the entire claim to fail.

Commonwealth v. Benner, 147 A.3d 915, 919–20 (Pa.Super. 2016)

(quotation marks, quotations, and citations omitted).

            A criminal defendant has the right to effective counsel
      during a plea process as well as during trial. The law does not

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       require that [he] be pleased with the outcome of his decision to
       enter a plea of guilty. Instead, [Appellant] 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
       [A]ppellant to enter an involuntary or unknowing plea.

Commonwealth v. Bedell, 954 A.2d 1209, 1212 (Pa.Super. 2008)

(citations, brackets, and quotation marks omitted).

       Appellant’s first claim is that guilty plea counsel was ineffective in

failing to comply with Appellant’s request for a pre-trial line-up, thus causing

Appellant to enter an involuntary guilty plea.

       At the PCRA hearing, Appellant testified that he had “a little visit” with

guilty plea counsel on the day of his preliminary hearing and, at this time,

he requested a line-up. N.T., PCRA hearing, 1/6/16.2 However, as the PCRA

court found, guilty plea counsel testified that he was not involved with

Appellant’s case at the time of the preliminary hearing and Appellant never

asked him for a line-up. See id.; PCRA Court Opinion, filed 1/20/16, at 3.

As was within its province, the PCRA court found guilty plea counsel’s

testimony to be credible. See Johnson, supra (holding appellate court is

bound by PCRA court’s credibility determinations). Thus, Appellant has failed

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2
  We note that the notes of testimony provided to us from the PCRA hearing
are not paginated.



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to demonstrate there is arguable merit to the underlying claim, and he is not

entitled to relief. Benner, supra.

      Appellant’s next claim is that guilty plea counsel was ineffective in

failing to provide and review all of the discovery with Appellant, thus causing

Appellant to enter an unknowing guilty plea.

      At the PCRA hearing, Appellant testified that, prior to the guilty plea

colloquy, counsel did not review with him the police reports or other items of

discovery.   N.T., PCRA hearing, 1/6/16.    Guilty plea counsel, on the other

hand, testified he “certainly reviewed all discovery, looked over everything

and saw if there were any potential issues that needed to be raised.”      Id.

He indicated that he discussed these items with Appellant. Id. He further

testified that, at a second meeting with Appellant, he and Appellant “talked

about any issues that may have been in the file.” Id. Further, guilty plea

counsel specifically testified that, some time after the second meeting, he

“went over the discovery with [Appellant].” Id.

      As to whether guilty plea counsel made a copy of the discovery and

gave it to Appellant, guilty plea counsel testified that he has no specific

recollection if that occurred in this case, but it is his normal practice to do

so. Id.

      Based on the aforementioned, finding guilty plea counsel’s testimony

to be credible, the PCRA court found no arguable merit to Appellant’s

underlying claim that guilty plea counsel did not provide and review the


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discovery documents with Appellant prior to the entry of a guilty plea. PCRA

Court Opinion, filed 1/20/16, at 3. We find the PCRA court’s determination

is supported by the record and free of legal error. See Johnson, supra.

        Appellant’s next claim is that guilty plea counsel was ineffective in

failing to file a motion seeking to suppress Appellant’s confession prior to the

guilty plea colloquy, thus causing Appellant to enter an involuntary guilty

plea.

        In reviewing this issue, we bear in mind that “with regard to the

prejudice prong, where an appellant has entered a guilty plea, the appellant

must demonstrate it is reasonably probable that, but for counsel’s error, he

would     not   have    pleaded   guilty   and   would   have   gone   to   trial.”

Commonwealth v. Timchak, 69 A.3d 765, 770 (Pa.Super. 2013).

        In this regard, in rejecting Appellant’s claim, the PCRA court found that

“[guilty plea counsel] stated [Appellant] never brought up any issues

regarding his statement to the police.       Rather, [Appellant] was concerned

with getting a better offer from the Commonwealth, and [he] was happy

when the offer was for a 10 year maximum.”           PCRA Court Opinion, filed

1/20/16, at 4.         Thus, Appellant did not prove that, but for counsel’s

omission, he would not have pleaded guilty.          We find the PCRA court’s

determination is supported by the record and free of legal error.            See

Johnson, supra.




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      For instance, at the PCRA hearing, guilty plea counsel confirmed that,

during his initial interview with Appellant, he discussed with him the then

current plea offer, which was a minimum sentence with a cap of fifteen years

in prison. N.T., PCRA hearing, 1/6/16. Appellant did not express that he

wished to file any pre-trial motions or proceed to trial; however, he

expressed displeasure with the plea offer of fifteen years. Id. Guilty plea

counsel testified that, in response to Appellant’s displeasure, he met with the

district attorney and “made a pitch” for a lesser minimum sentence.        Id.

Within thirty days, the Commonwealth “indicated [it] would make a final

offer for [Appellant] to resolve all of his cases with a new cap at 10 years.”

Id.

      Guilty plea counsel testified he informed Appellant of the new offer and

also informed Appellant that he could alternatively fight the case by filing

motions. Id.    Guilty plea counsel indicated Appellant was “actually elated”

with the new guilty plea offer and informed counsel that he wanted to “head

in that direction.” Id. Thereafter, Appellant signed the written guilty plea

colloquy, in which he acknowledged that, by pleading guilty, he was giving

up the right to challenge the evidence the Commonwealth would present

against him. Thus, we agree with the PCRA court that guilty plea counsel

cannot be deemed ineffective on this basis. See Benner, supra.

      Appellant’s next claim is that guilty plea counsel was ineffective in

permitting Appellant to enter an unknowing and involuntary guilty plea since


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(1) Appellant was unable to focus and concentrate at the hearing because he

was taking psychotropic medication, (2) counsel promised Appellant that he

would receive a minimum sentence of less than ten years, and (3) counsel

promised Appellant that he would serve his sentence at a psychiatric

hospital.

      In rejecting Appellant’s claim, the PCRA court indicated the following:

            The record is clear that [Appellant] understood what he
      was doing by pleading guilty. He completed both a written and
      oral colloquy, wherein he indicate[d] he understood the charges
      against him, the maximum sentences, and what he was doing by
      pleading guilty. [Guilty plea counsel] testified that he reviewed
      each of the charges with [Appellant] and that [Appellant] was
      coherent and appeared to understand everything that was going
      on. [The PCRA court judge, who was also the guilty plea hearing
      judge,] observed [Appellant] at his plea, and he appeared to be
      coherent and not under the influence of any medication.
      Additionally, [the PCRA court does] not find credible
      [Appellant’s] testimony that [guilty plea counsel] made any
      promises regarding the sentence he would receive.

PCRA Court Opinion, filed 1/20/16, at 4-5.           We find the PCRA court’s

determination is supported by the record and free of legal error.              See

Johnson, supra.

      We note that, during the guilty plea colloquy, the trial court questioned

Appellant   extensively   regarding   his   mental    awareness   and    use    of

medications. N.T., guilty plea hearing, 4/28/14, at 8-9.                Appellant

specifically denied that he had any physical or mental problems that affected

his ability to understand the proceedings. Id. at 8. Appellant indicated that

he took a prescribed medication, Seroquel, within twenty-four hours of the


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guilty plea hearing; however, he specifically denied that he was “under the

influence of any substance[.]”      Id. at 9.       Appellant admitted that he

understood    what   was   occurring   at    the   hearing.   Id.   at   8-9.   See

Commonwealth v. Yeomans, 24 A.3d 1044, 1047 (Pa.Super. 2011)

(holding that a person who elects to plead guilty is bound by the statements

he made during the plea colloquy and may not later assert grounds for

withdrawing the plea which contradict those statements).

      Moreover, with regard to his assertion that guilty plea counsel

promised him that he would receive a minimum sentence of less than ten

years in prison and/or that he would serve his sentence at a psychiatric

hospital, we note that, during the guilty plea colloquy, the Commonwealth

indicated that “the plea agreement in this case is a cap of 10 years.           We

have not made an agreement as to concurrency or consecutive, but [the

court] can fashion this in any manner that [it] would like.” N.T., guilty plea

hearing, 4/28/14, at 3.    The trial court specifically asked Appellant if he

understood that, if the trial court approved the plea agreement, Appellant

could receive a minimum sentence of ten years in prison, and Appellant

responded affirmatively. Id. at 4, 26. The trial court asked Appellant if he

had any other questions about the plea agreement, and Appellant responded

negatively. Id. Further, the written plea colloquy confirms that Appellant

affirmatively indicated that he understood that, if the trial court accepted the

plea bargain, Appellant would be sentenced in accordance therewith.             See


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Written Guilty Plea Colloquy, 4/28/14, at 7. At the oral colloquy, Appellant

confirmed that he understood and answered honestly all of the questions on

the written colloquy. Thus, guilty plea counsel cannot be deemed ineffective

on this basis. See Benner, supra.

      Appellant’s next claim is that guilty plea counsel was ineffective in

proceeding to sentencing absent a mental health evaluation.       In rejecting

Appellant’s claim, the PCRA court indicated the following:

            I find no merit to [Appellant’s] claim that [guilty plea
      counsel] failed to follow-up on a mental health evaluation for
      [Appellant] to aid in sentencing. The record is clear that [guilty
      plea counsel] requested a mental health evaluation at the time
      of the guilty plea. It was [the] court’s decision to leave a mental
      health evaluation up to the discretion of the adult probation
      department.
            Furthermore, [guilty plea counsel] requested a continuance
      in order to secure [Appellant’s] mental health records from [the]
      State Prison to aid in sentencing, and argued vigorously for a
      reduced sentence based on [Appellant’s] mental health issues.
      As such, [there is] no merit to [Appellant’s] underlying claim.

PCRA Court Opinion, filed 1/20/16, at 5.         We find the PCRA court’s

determination is supported by the record and free of legal error.           See

Johnson, supra.

      For all of the foregoing reasons, we affirm the PCRA court’s denial of

Appellant’s first PCRA petition.

      Affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/23/2017




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