J   -S94024-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA                    1     IN THE SUPERIOR COURT OF
                                                            PENNSYLVANIA


                      v.

DONTE JOHNSON

                           Appellant                       No. 1005 MDA 2016


                   Appeal from the PCRA Order May 26, 2016
               In the Court of Common Pleas of Lancaster County
              Criminal Division at No(s): CP-36-CR-0000616-2014


BEFORE:     LAZARUS, J., RANSOM, J., and FITZGERALD, J.*

MEMORANDUM BY RANSOM, J.:                                 FILED MARCH 20, 2017

        Appellant, Donte Johnson, appeals from the May 26, 2016 order

denying his petition filed under the Post Conviction Relief Act, 42 Pa.C.S. §§

9541-9546. We affirm.

        Appellant was arrested and charged with aggravated assault, three

counts of possession with intent to deliver controlled substances, one count

of criminal conspiracy, one count of possession of drug paraphernalia, one

count of fleeing or attempting to elude     a       police officer, and one count of

driving    while operating    privileges were suspended or revoked.'              On

December 1, 2014, following an extensive colloquy, Appellant entered an




' 18 Pa.C.S. § 2702(a)(2); 35 P.S. §     780-113(a)(30); 18 Pa.C.S.       §   903; 35
P.S. § 780-113(a)(32); 75 Pa.C.S. §§     3733(a), 1543(a).


*   Former Justice specially assigned to the Superior Court.
J -S94024-16




open guilty plea to all offenses. See Notes of Testimony (N. T.), 12/1/14, at

2-38.

        On February 26, 2015, Appellant was sentenced on the                 instant docket,

as well as for probation violations at docket numbers CP-36-CR-0000029-

2007 and CP-36-CR-0002789-2008.                   At sentencing, the Commonwealth

noted that Appellant's prior record score had been miscalculated, and it

offered   a   corrected score and appropriate guidelines. N. T., 2/26/15, at 6-7.

Appellant       complained    bitterly       about    plea   counsel's       representation,

specifically with reference to the prior record score.             Id. at 11-22.         As a

result of those issues, the court offered Appellant the option to withdraw his

plea, advising Appellant that it would be difficult to pursue            a   post -conviction

petition based on the above.        Id. at 20-25. Ultimately, Appellant               declined

the opportunity to withdraw his plea after consulting with his family.                  Id.   at

23-25. Appellant received an aggregate sentence on all dockets of six and

one-half to twenty years of incarceration and five years of consecutive

probation.

        Appellant did not pursue         a   direct appeal but pro se filed       a   petition

seeking PCRA relief. Counsel was appointed and filed two amended petitions

on his behalf.       The PCRA court held          a   hearing on the second amended




                                             -2
J   -S94024-16



petition on March 21, 2016.2         The court dismissed Appellant's petition on

May 27, 2016.

        Appellant timely appealed and filed     a   court -ordered Pa.R.A.P. 1925(b)

statement of errors complained of on appeal. The court issued              a   statement

adopting its order and opinion of May 27, 2016.

        Herein, Appellant presents   a   single question for our review.

        Whether the [c]ourt erred in denying post -conviction relief where
        the failure of defense counsel to correct the miscalculation of the
        standard range sentencing guideline resulted in a less attractive
        plea offer from the Commonwealth and a longer prison sentence,
        and Appellant was prejudiced thereby?

Appellant's Brief at 4.

        We review an order denying a petition under the PCRA to determine

whether the findings of the PCRA court are supported by the evidence of

record and free of legal error. Commonwealth v. Ragan, 923 A.2d 1169,

1170 (Pa. 2007). We afford the court's findings deference unless there is no

support for them in the certified record.           Commonwealth v. Brown, 48
A.3d 1275, 1277 (Pa. Super. 2012) (citing Commonwealth v. Anderson,

995 A.2d 1184, 1189 (Pa. Super. 2010)).

        Appellant argues that counsel was ineffective for allegedly failing to

correct the miscalculation of Appellant's prior record score, which he claims


2 The PCRA court's May 27, 2016 opinion and order indicates the notes of
testimony at the PCRA hearing were not transcribed. Its 1925(a) statement
references notes of testimony. Notes of testimony of the March 21, 2016
PCRA hearing do not appear in the certified record.



                                          -3
J   -S94024-16



resulted in       a   less -attractive plea offer and a longer prison sentence.     See

Appellant's Brief at 4.

        We presume counsel is effective.           Commonwealth v. Washington,
927 A.2d 586, 594 (Pa. 2007). To overcome this presumption and establish

the ineffective assistance of counsel,           a PCRA   petitioner must prove, by    a

preponderance of the evidence that: "(1) the underlying legal issue has

arguable merit; (2) counsel's actions lacked an objective reasonable basis;

and (3) actual prejudice befell the petitioner from counsel's act or omission."

Commonwealth v. Johnson, 966 A.2d 523, 533                       (Pa. 2009) (citations

omitted).         "A petitioner establishes prejudice when he demonstrates that

there    is   a    reasonable probability that, but for counsel's unprofessional

errors, the result of the proceeding would have been different."           Id.   A claim

will be denied if the petitioner fails to meet any one of these requirements.

Commonwealth v. Springer, 961 A.2d 1262, 1267                       (Pa. Super. 2008)

(citing Commonwealth v. Natividad, 938 A.2d 310, 322 (Pa. 2007));

Commonwealth v. Jones, 942 A.2d 903, 906                  (Pa. Super. 2008).

        We review allegations of counsel's ineffectiveness in connection with a

guilty plea as follows:

        The    standard for post -sentence withdrawal of guilty pleas
        dovetails with the arguable merit/prejudice requirements for
        relief based on a claim of ineffective assistance of counsel under
        which 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. Allegations of ineffectiveness in connection with the entry
        of a guilty plea will serve as a basis for relief only if the

                                            -4
J   -S94024-16


        ineffectiveness caused appellant to enter an involuntary or
        unknowing plea.

        The standard is equivalent to the "manifest injustice" standard
        applicable to all post -sentence motions to withdraw a guilty plea.

Commonwealth v. Morrison, 878 A.2d 102, 105                                     (Pa.   Super. 2005)

(internal citations and some quotations omitted). Where                         a   defendant enters

a    plea on the advice of counsel, the voluntariness of the plea depends on

whether the advice was within the range of competence demanded of

attorneys in criminal cases.           Commonwealth v. Timchak, 69 A.3d 765,
769 (Pa. Super. 2013).             In determining whether                  a    plea was entered

knowingly and       voluntarily,       this   Court        considers       the      totality of the

circumstances surrounding the plea.                Commonwealth v. Flanagan, 854
A.2d 489, 513 (Pa. 2004).

        The record reflects that Appellant knowingly and voluntarily entered

into an open guilty plea. He signed           a   guilty plea colloquy, indicating that he

was aware of the charges, the maximum sentence for the offense, and the

circumstances surrounding the charges.                N.   T., 12/1/14, at 2-38; see also

Written Guilty Plea Colloquy, 12/1/14, at 1-7.                  He   admitted to committing

the crimes and acknowledged that plea counsel adequately explained the

charges to him.     Id.   He understood the rights he was foregoing with his

plea and stated that no one had coerced him into pleading guilty.                          Id.; see
also Commonwealth v. Tareila, 895 A.2d 1266, 1267                                (Pa. Super. 2006)

(stating that "[t]he entry of      a   guilty plea constitutes         a       waiver of all defects


                                              -5
J   -S94024-16


and defenses except lack of jurisdiction, invalidity of the plea, and illegality

of the sentence.").

        Here, Appellant does not challenge the legality of the sentence or the

validity of the plea, but essentially, the discretionary aspects of his sentence.

He speculates    that had his prior record score been properly calculated prior

to the plea hearing, the Commonwealth would have offered him                     a   more

attractive deal.       However, such     a   claim   is   not cognizable under the PCRA.

See Tareila, 895 A.2d at 1267.3

        Accordingly, we discern no error in the PCRA court's decision to

dismiss Appellant's petition. Ragan, 923 A.2d at 1170. His claim is without

merit, and he    is   not entitled to relief.

        Order affirmed.


Judgment Entered.




J    seph D. Seletyn,
Prothonotary


Date: 3/20/2017


3
  Further, the incorrect prior record score was corrected prior to sentencing.
See N. T., 2/26/15, at 6-7. New guidelines in conformity with that prior
record score were read onto the record at that time.              Id. at 6-8.
Accordingly, as Appellant entered into an open guilty plea and his sentencing
guidelines were correct at the time of sentencing, he cannot show prejudice.
See Johnson, 966 A.2d at 533.


                                             -6
