J-S39023-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    WYMAN A. ALLEN                             :
                                               :
                       Appellant               :   No. 52 MDA 2018

               Appeal from the PCRA Order December 7, 2017
     In the Court of Common Pleas of Luzerne County Criminal Division at
                       No(s): CP-40-CR-0000993-2014,
             CP-40-CR-0002649-2015, CP-40-CR-0004204-2014

BEFORE: STABILE, J., MURRAY, J., and MUSMANNO, J.

MEMORANDUM BY MURRAY, J.:                              FILED AUGUST 07, 2018

       Wyman A. Allen (Appellant) appeals from the order dismissing his

petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A.

§§ 9541-9546. We affirm.

       We summarize the relevant facts and procedural history of this case as

follows. Appellant was charged with numerous drug trafficking offenses and

violations of the Motor Vehicle Code at docket numbers CP-40-CR-993-2014

(993-2014), CP-40-CR-4204-2014 (4204-2014), and CP-40-CR-2649-2015

(2649-2015). On October 19, 2015, Appellant pled guilty at docket number

4204-2014 to one count of possession with the intent to deliver a controlled

substance.1 On January 4, 2016, Appellant pled guilty at docket number 993-


____________________________________________


1   35 P.S. § 780-113(a)(30).
J-S39023-18


2014 to one count of possession with the intent to deliver a controlled

substance, one count of driving under the influence of alcohol (DUI) – general

impairment, and one count of driving while operating privilege suspended or

revoked.2 The same day, Appellant also pled guilty at docket number 2649-

2015 to one count of DUI – general impairment and one count of resisting

arrest.3

       At Appellant’s January 4, 2016 guilty plea hearing, plea counsel4

informed the trial court that Appellant desired a state intermediate

punishment (SIP) sentence. Plea counsel explained that he had contacted the

Sentencing Commission on Appellant’s behalf so that Appellant could undergo

an evaluation to determine if he qualified for an SIP sentence, but was unsure

at that time whether Appellant would indeed qualify. Ultimately, Appellant did

not qualify for an SIP sentence.

       On May 9, 2016, the trial court sentenced Appellant at all three docket

numbers to an aggregate term of 48 to 96 months of incarceration. Appellant

filed a post-sentence motion to modify his sentence, which the trial court




____________________________________________


2   35 P.S. § 780-113(a)(30); 75 Pa.C.S.A. §§ 3802(a)(1), 1543(b)(1).

3   75 Pa.C.S.A. §§ 3802(a)(1); 18 Pa.C.S.A. § 5104.

4 Plea counsel only represented Appellant for his January 4, 2016 guilty plea
and at sentencing. Plea counsel did not represent Appellant at his October
19, 2015 guilty plea.

                                           -2-
J-S39023-18


denied on June 21, 2016. Appellant filed a direct appeal to this Court, which,

for reasons that are not clear from the record, he subsequently discontinued.

      On December 29, 2016, Appellant filed a pro se PCRA petition and on

February 8, 2017, the PCRA court appointed counsel to represent Appellant.

Appellant asserted that plea counsel was ineffective for assuring him that he

was eligible for an SIP sentence when he was not in fact eligible for such a

sentence. Consequently, Appellant argued that plea counsel’s ineffectiveness

caused him to enter a guilty plea that was not knowing, voluntary, or

intelligent.   On December 5, 2017, the PCRA court held a hearing on

Appellant’s PCRA petition. The PCRA court denied the petition on December

7, 2017. On January 2, 2018, Appellant timely appealed to this Court.

      Appellant presents the following issue for review:

      Whether trial counsel was ineffective in assuring Appellant that he
      was eligible for the [SIP] [p]rogram when in fact, he was not[,]
      thus making his plea involuntary.

Appellant’s Brief at 1.

      “In reviewing the denial of PCRA relief, we examine whether the PCRA

court’s determination is supported by the record and free of legal error.”

Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014) (quotations and

citations omitted).       “To be entitled to PCRA relief, [an] appellant must

establish, by a preponderance of the evidence, his conviction or sentence

resulted from one or more of the enumerated errors in 42 Pa.C.S.[A.] §

9543(a)(2)[.]” Id.


                                       -3-
J-S39023-18


      Appellant challenges plea counsel’s effectiveness as it pertains to his

guilty plea. In deciding ineffective assistance of counsel claims, we begin with

the presumption that counsel rendered effective assistance. Commonwealth

v. Bomar, 104 A.3d 1179, 1188 (Pa. 2014). To overcome that presumption,

the petitioner must establish: “(1) the underlying claim has arguable merit;

(2) no reasonable basis existed for counsel’s action or failure to act; and (3)

the petitioner suffered prejudice as a result of counsel’s error, with prejudice

measured by whether there is a reasonable probability that the result of the

proceeding would have been different.”           Id. (citation omitted).      To

demonstrate prejudice in an ineffective assistance of counsel claim, “the

petitioner must show that there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been

different.” Commonwealth v. King, 57 A.3d 607, 613 (Pa. 2012). If the

petitioner fails to prove any of these prongs, the claim is subject to dismissal.

Bomar, 104 A.3d at 1188.

      “Allegations of ineffectiveness in connection with the entry of a guilty

plea will serve as a basis for relief only if the ineffectiveness caused the

defendant to enter an involuntary or unknowing plea.” Commonwealth v.

Moser, 921 A.2d 526, 531 (Pa.Super.2007) (quotations and citation omitted).

“Where the defendant enters his plea on the advice of counsel, the

voluntariness of the plea depends on whether counsel’s advice was within the

range of competence demanded of attorneys in criminal cases.”                Id.


                                      -4-
J-S39023-18


(quotations and citations omitted).       “Thus, to establish prejudice, the

defendant must show that there is a reasonable probability that, but for

counsel’s errors, he would not have pleaded guilty and would have insisted on

going to trial.” Commonwealth v. Barndt, 74 A.3d 185, 192 (Pa. Super.

2013) (quotations and citations omitted). “The reasonable probability test is

not a stringent one; it merely refers to a probability sufficient to undermine

confidence in the outcome.” Id. (quotations and citations omitted).

      With respect to valid guilty pleas, this Court has explained:

      A valid guilty plea must be knowingly, voluntarily and intelligently
      entered. The Pennsylvania Rules of Criminal Procedure mandate
      that pleas be taken in open court, and require the court to conduct
      an on-the-record colloquy to ascertain whether a defendant is
      aware of his rights and the consequences of his plea. Specifically,
      the court must affirmatively demonstrate the defendant
      understands: (1) the nature of the charges to which he is pleading
      guilty; (2) the factual basis for the plea; (3) his right to trial by
      jury; (4) the presumption of innocence; (5) the permissible ranges
      of sentences and fines possible; and (6) that the court is not
      bound by the terms of the agreement unless the court accepts the
      agreement. This Court will evaluate the adequacy of the plea
      colloquy and the voluntariness of the resulting plea by examining
      the totality of the circumstances surrounding the entry of that
      plea.

Commonwealth v. Kelley, 136 A.3d 1007, 1013 (Pa. Super. 2016) (citations

omitted).

      Appellant argues that plea counsel was ineffective because plea counsel

guaranteed him, prior to his guilty plea, that he would receive an SIP

sentence.   Appellant contends that because he did not receive an SIP




                                      -5-
J-S39023-18


sentence, plea counsel’s guarantee was improper and his guilty plea was not

knowing, voluntary, and intelligent.

      We conclude that Appellant’s claim lacks arguable merit. The record

provides no support, other than the self-serving statements Appellant made

at the PCRA hearing, for the assertion that plea counsel guaranteed Appellant

that he would receive an SIP sentence. Instead, the record amply supports

the PCRA court’s determination that plea counsel made no such guarantee.

      Plea counsel specifically testified that he “absolutely positively” did not

tell Appellant that he was guaranteed SIP. N.T., 12/5/17, at 15. The notes

of testimony from Appellant’s guilty plea hearing corroborate plea counsel’s

testimony. At the guilty plea hearing, plea counsel explained the following

regarding Appellant’s eligibility for an SIP sentence:

      [Plea Counsel]: Now we’ve had some discussions with the
      District Attorney’s office about -- and we checked with the state,
      if the [c]ourt were inclined, to allow him to go to the state for an
      evaluation on the SIP program. Obviously[,] he has a serious
      addiction issue which involves all of his crimes.

             I did call the Sentencing Commission and spoke with them,
      and it seems that he might qualify for at least their evaluation
      process, and then they will make the ultimate determination if
      they feel [sic]. Now, he does have some armed robberies in
      Florida, but they were in the early 80’s. Looking at the SIP
      statute, it has to be within the past ten years, so he’s outside of
      that time period. So we’re not sure if he’ll qualify, but that’s
      what we’re asking the opportunity for.

N.T., 1/4/16, at 2-3 (emphasis added). Thus, plea counsel made clear prior

to Appellant at the guilty plea hearing that an SIP sentence was a possibility,

not a guarantee.

                                       -6-
J-S39023-18


      Moreover, as the PCRA court explained, there is no evidence of record

that Appellant’s guilty plea was anything other than knowing, voluntary, and

intelligent:

      [T]he hearing record of the guilty plea colloquy clearly establishes
      that [Appellant] heard the content of the plea agreements, read
      the agreements, acknowledged he understood the plea
      agreements, and signed the plea agreements. [N.T., 1/4/16, at
      10]. [Appellant] testified he had both the opportunity to ask
      questions of his attorneys and he was satisfied with their
      representation. Id. at [] 13, 15. [Appellant] acknowledged no
      other promises were made to induce his guilty plea. Id. at [] 16-
      17. Perhaps most importantly, the record establishes [Appellant]
      was aware that sentencing was at the discretion of the court. Id.
      at [] 6.

PCRA Court Opinion, 2/28/18, at 6-7 (footnotes omitted).

      Based upon our review of the certified record, including the transcripts

from both the guilty plea and PCRA hearings, we agree with the PCRA court’s

determination that that Appellant’s guilty plea was knowing, voluntary, and

intelligent.   There is no support for Appellant’s claim that plea counsel

improperly induced him into pleading guilty by promising him an SIP sentence.

Accordingly, we conclude that Appellant’s ineffective of assistance of counsel

claim lacks arguable merit and that the PCRA court did not err in dismissing

his PCRA petition.




                                     -7-
J-S39023-18




     Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/7/2018




                          -8-
