J-S10024-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

MANUEL SANTIAGO

                            Appellant                No. 1549 EDA 2014


               Appeal from the PCRA Order entered May 15, 2014
                 In the Court of Common Pleas of Lehigh County
                Criminal Division at No: CP-39-CR-0001868-2013


BEFORE: GANTMAN, P.J., STABILE, and PLATT,* JJ.

MEMORANDUM BY STABILE, J.:                           FILED MARCH 17, 2015

        Appellant, Manuel Santiago, appeals from an order denying relief

under the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-46. We

affirm.

        On September 11, 2013, Appellant pled nolo contendere to aggravated

assault with a deadly weapon and simple assault.1          The charges stemmed

from an incident in the apartment of Appellant’s girlfriend.          Appellant

repeatedly punched his girlfriend and then incapacitated a responding

security guard with the guard’s Taser.         See N.T. Guilty [sic] Plea &

Sentencing, 9/11/13, at 14-16. The Commonwealth withdrew several other
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S.A. §§ 2702(a)(4) and 2701(a)(1), respectively.
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pending charges against Appellant, and he received a county jail sentence of

11½ to 23 months followed by 18 months of probation.

      On December 6, 2013, Appellant filed a timely first PCRA petition. In

the petition, he claimed his plea counsel induced him to plead nolo

contendere by promising something undeliverable—that Appellant could

withdraw his plea after sentencing. The PCRA court held a hearing at which

Appellant and his plea counsel testified. On April 16, 2014, the PCRA court

denied relief, and this appeal followed.

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

claim that plea counsel rendered constitutionally ineffective assistance.

      We review an order dismissing a petition under the PCRA in the
      light most favorable to the prevailing party at the PCRA level.
      This review is limited to the findings of the PCRA court and the
      evidence of record. We will not disturb a PCRA court’s ruling if it
      is supported by evidence of record and is free of legal error. . . .
      Further, we grant great deference to the factual findings of the
      PCRA court and will not disturb those findings unless they have
      no support in the record. However, we afford no such deference
      to its legal conclusions. Where the petitioner raises questions of
      law, our standard of review is de novo and our scope of review
      plenary.

Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (internal

citations omitted).

      To prevail, Appellant must show his plea counsel rendered ineffective

assistance of counsel.

      [A] PCRA petitioner will be granted relief only when he proves,
      by a preponderance of the evidence, that his conviction or
      sentence resulted from the ineffective assistance of counsel
      which, in the circumstances of the particular case, so


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       undermined the truth-determining process that no reliable
       adjudication of guilt or innocence could have taken place. 42
       Pa.C.S. § 9543(a)(2)(ii). 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. . . . [T]o prove counsel ineffective,
       the petitioner must show that: (1) his underlying claim is of
       arguable merit; (2) counsel had no reasonable basis for his
       action or inaction; and (3) the petitioner suffered actual
       prejudice as a result.

Commonwealth v. Charleston, 94 A.3d 1012, 1019 (Pa. Super. 2014)

(quoting Commonwealth v. Spotz, 84 A.3d 294, 311-12 (Pa. 2014)).

       To prove his claim, Appellant testified that plea counsel induced him to

plead nolo contendere by assuring him he could withdraw his plea post-

sentence. Appellant stated he wanted to review the transcripts of the 911

call and preliminary hearing, and plea counsel said he could withdraw his

plea after reviewing those materials. Appellant testified further that he was

not given his medication the day he pleaded nolo contendere, and he felt

dizzy.2 In contrast, plea counsel testified he never would have advised that

Appellant could easily withdraw his plea in the future. Plea counsel testified

that Appellant chiefly wanted to avoid a state-prison sentence. Finally, plea

counsel remembered that Appellant was not given his medication that day.

       Weighing the evidence, the PCRA court accepted plea counsel’s

testimony as more credible than Appellant’s.
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2
 The record shows that Appellant suffers from anxiety and that he takes an
unspecified medicine to treat it. See N.T. PCRA Hearing, 2/26/14, at 21-22,
37-38.



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     Simply put, there is no credible evidence of [plea counsel’s]
     making any assurances about withdrawing the pleas. I do not
     believe [plea counsel] said such a thing.           Furthermore,
     [Appellant’s] claim that his nolo contendere pleas were
     “unlawfully induced” is undercut by the record developed at the
     plea hearing conducted on September 11, 2013.            I asked
     [Appellant] if any promises were made to him other than the
     plea bargain in order to get him to enter the pleas. [Appellant]
     answered in the negative.

PCRA Court Opinion, 4/16/14, at 5-6.           The PCRA court also rejected

Appellant’s claim that the plea was involuntary because Appellant had not

taken his medication that morning and was feeling dizzy. Id. The record

supports the PCRA court’s finding that Appellant was thoroughly colloquied

prior to pleading nolo contendere, including on whether his medication

affected him:

     THE COURT: Do you have any drugs or alcohol in your system?

     [APPELLANT]: No. For mental mood disorders.

     THE COURT: So prescription medication that you have?

     [APPELLANT]: Yes, sir.

     THE COURT: And does that affect your thinking here at all?

     [APPELLANT]: No, it doesn’t, Your Honor.

N.T. Guilty [sic] Plea & Sentencing, 9/11/13, at 8.    The remainder of the

colloquy supports the PCRA court’s finding that it advised Appellant of his

rights and that Appellant entered his plea knowingly, voluntarily, and

intelligently. See id. at 8-14. Because the record supports the PCRA court’s

findings, they bind this Court. Ford, supra.

     We agree with the PCRA court that Appellant’s claim lacks merit. He

has not met his burden of showing that his plea was involuntary or

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unknowing.     Appellant therefore cannot show his plea counsel was

ineffective. The PCRA court did not err in denying relief.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/17/2015




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