J-S01027-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

RYAN WILLIAM BLACK

                            Appellant                 No. 588 WDA 2014


                  Appeal from the PCRA Order March 31, 2014
              In the Court of Common Pleas of Allegheny County
             Criminal Division at No(s): CP-02-CR-0005582-2011,
                            CP-02-CR-0007250-2011


BEFORE: GANTMAN, P.J., JENKINS, J., and MUSMANNO, J.

MEMORANDUM BY JENKINS, J.:                        FILED JANUARY 27, 2015

        Ryan Black (“Appellant”) appeals from the order dismissing his petition

filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§

9541-9546. After careful review, we affirm.

        On October 6, 2011, Appellant entered a negotiated guilty plea to one

count of robbery1 at Docket No. CP-02-CR-0007250-2001, and seven counts

of forgery,2 two counts of theft by deception,3 and one count of receiving

stolen property4 at Docket No. CP-02-CR-0005582-2011.           The trial court
____________________________________________


1
    18 Pa.C.S. § 3701.
2
    18 Pa.C.S. § 4101.
3
    18 Pa.C.S. § 3922.
4
    18 Pa.C.S. § 3925.
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sentenced Appellant the same day to three (3) to six (6) years’ incarceration

and five (5) years’ probation on the robbery conviction, and a concurrent

sentence of one (1) to two (2) years of incarceration and two (2) years’

probation on one of the forgery convictions.5    Appellant did not file post-

sentence motions or a direct appeal.

       On October 4, 2012, Appellant filed a timely pro se PCRA petition.6

The PCRA court appointed counsel, who filed an amended PCRA petition on

April 19, 2013.       The amended PCRA petition raised multiple claims all

stemming from the notion that Appellant did not knowingly enter his guilty

plea because trial counsel did not inform him that the trial court could

impose the probationary portion of the sentence consecutive to the term of

incarceration.     See generally Amended PCRA Petition.     The PCRA court

conducted a hearing on December 4, 2013. After the hearing, on February

14, 2014, Appellant, through counsel, filed a “Motion for Leave to Amend

Defendant’s PCRA Petition to Raise Claim of Ineffectiveness of Counsel for

Failing to Pursue [Justice Relative Services] “(JRS”)] Mitigation Strategy”.
____________________________________________


5
  The court imposed no further penalty on the remaining six forgery
convictions, the theft by deception convictions, or the receiving stolen
property conviction.
6
  Appellant’s pro se PCRA petition alleged trial counsel provided ineffective
assistance of counsel by not objecting to the consecutive nature of the
probationary sentence imposed for his robbery conviction. See Pro Se PCRA
Petition, p. 1. Appellant alleged that the sentence, by including a term of
incarceration and a term of probation, represented two different sentences
for the same crime, and was therefore illegal. See id. at 1-2.



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The PCRA court denied the petition on March 31, 2014.          Appellant timely

appealed on April 11, 2014.         Both Appellant and the PCRA court complied

with Pa.R.A.P. 1925.7

       On appeal, Appellant presents the following issues for our review:

       I. Whether [Appellant’s] guilty plea was lawfully induced due to
       ineffective assistance of trial counsel where: (A) counsel failed to
       inform Appellant that he could receive a consecutive sentence of
       probation; and, (B) counsel failed to pursue a mitigation strategy
       through JRS.

       II. Whether [Appellant] was denied due process and effective
       assistance of counsel where the court failed to order a pre-
       sentence investigation report and failed to place on the record
       the reasons for dispensing with the pre-sentence investigation
       report in violation of P[a].R.C[rim].P. 702?

Appellant’s Brief, p. 3.

       Our well-settled standard of review for orders denying PCRA relief is

“to determine whether the determination of the PCRA court is supported by

the evidence of record and is free of legal error. The PCRA court’s findings

will not be disturbed unless there is no support for the findings in the

certified record.”      Commonwealth v. Barndt, 74 A.3d 185, 191-192

(Pa.Super.2013) (internal quotations and citations omitted).



____________________________________________


7
  The PCRA court’s July 28 2014 Pa.R.A.P. 1925(a) opinion incorporated the
court’s March 31, 2014 Opinion and Order denying Appellant’s petition in
addition to including analysis of certain errors complained of in Appellant’s
1925(b) statement.




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       Pennsylvania courts apply the Pierce8 test to review PCRA claims of

ineffective assistance of counsel:

       When a petitioner alleges trial counsel’s ineffectiveness in a
       PCRA petition, he must prove by a preponderance of the
       evidence that his conviction or sentence resulted from ineffective
       assistance of counsel which, in the circumstances of the
       particular case, so undermined the truth-determining process
       that no reliable adjudication of guilt or innocence could have
       taken place. We have interpreted this provision in the PCRA to
       mean that the petitioner must show: (1) that his claim of
       counsel’s ineffectiveness has merit; (2) that counsel had no
       reasonable strategic basis for his action or inaction; and (3) that
       the error of counsel prejudiced the petitioner-i.e., that there is a
       reasonable probability that, but for the error of counsel, the
       outcome of the proceeding would have been different. We
       presume that counsel is effective, and it is the burden of
       Appellant to show otherwise.

Commonwealth v. duPont, 860 A.2d 525, 531 (Pa.Super.2004) (internal

citations and quotations omitted).             The petitioner bears the burden of

proving all three prongs of this test.         Commonwealth v. Meadows, 787

A.2d 312, 319-320 (Pa.2001).               “If an appellant fails to prove by a

preponderance of the evidence any of the Pierce prongs, the Court need not

address the remaining prongs of the test.” Commonwealth v. Fitzgerald,

979 A.2d 908, 911 (Pa.2010) (citation omitted).

       Regarding claims of ineffective assistance of counsel during the plea

process, this Court has stated:



____________________________________________


8
    Commonwealth v. Pierce, 527 A.2d 973 (Pa.1987).



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        A criminal defendant has the right to effective counsel during a
        plea process as well as during trial. The law does not require
        that appellant be pleased with the outcome of his decision to
        enter a plea of guilty. Instead, 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. 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
        appellant to enter an involuntary or unknowing plea.

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

citations, quotations, and brackets omitted).

        “A valid plea colloquy must delve into six areas: 1) the nature of the

charges, 2) the factual basis of the plea, 3) the right to a jury trial, 4) the

presumption of innocence, 5) the sentencing ranges, and 6) the plea court’s

power to deviate from any recommended sentence.”             Commonwealth v.

Morrison,      878   A.2d   102,   107    (Pa.Super.2005);   Pa.R.Crim.P.     590,

Comment. Additionally, a written plea colloquy that is read, completed and

signed by the defendant and made part of the record may serve as the

defendant’s plea colloquy when supplemented by an oral, on-the-record

examination. Morrison, 878 A.2d at 108 (citing Comment to Pa.R.Crim.P.

590).    “[A] plea of guilty will not be deemed invalid if the circumstances

surrounding the entry of the plea disclose that the defendant had a full

understanding of the nature and consequences of his plea and that he

knowingly and voluntarily decided to enter the plea.”        Commonwealth v.

Fluharty, 632 A.2d 312, 315 (Pa.Super.1993). “Our law presumes that a


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defendant who enters a guilty plea was aware of what he was doing.           He

bears the burden of proving otherwise.” Commonwealth v. Pollard, 832

A.2d 517, 523 (Pa.Super.2003) (internal citation omitted). The entry of a

negotiated plea is a “strong indicator” of the voluntariness of the plea.

Commonwealth v. Myers, 642 A.2d 1103, 1106 (Pa.Super.1994).

      Appellant’s first claim alleges that his plea counsel provided ineffective

assistance that resulted in a guilty plea that was not knowing, voluntary, and

intelligent.   See Appellant’s Brief at 7-9.    Appellant claims trial counsel’s

ineffectiveness induced him to enter an unknowing and unintelligent guilty

plea because counsel failed to inform him that any probationary sentence

imposed would run consecutive to his sentence of incarceration.         See id.

We disagree.

      The record reveals Appellant understood the nature of the charges

against him and the plea to which he was agreeing, and that he voluntarily

and intelligently entered his guilty plea.     At the outset of the guilty plea

hearing, the prosecutor placed the terms of the agreement on the record as

follows:

            [Prosecutor]:    We have a plea agreement.        The plea
      agreement is as follows: On 201107250, on the robbery charge,
      [Appellant] will be pleading guilty and sentenced to 3 to 6 years
      in state prison. On 201105582, seven forgery counts. A couple
      theft by deception, receiving stolen property counts.

            [Appellant] will be pleading guilty to the information there
      and sentenced to 1 to 2 years in state prison concurrent with the
      3- to 6-year sentence and a period of probation set by the
      [c]ourt. There is $2,448 restitution at First Commonwealth


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       Bank and $300 restitution to a Saul Franklin on the robbery
       case.

N.T. 10/6/2011, pp. 2-3 (emphasis provided).9          Thereafter, Appellant fully

participated in his guilty plea colloquy, in which he indicated to the court

that he understood the charges, the plea, and the proceedings and was

satisfied with the representation of his counsel.      See id. at 3-9; see also

Commonwealth v. McCauley, 797 A.2d 920, 922 (Pa.Super.2001)

(defendant is bound by statements he makes during plea colloquy, and may

not assert grounds for withdrawing plea that contradict statements made

when he pleaded guilty).         Counsel also expressed his belief that Appellant

understood what he was doing in executing the guilty pleas. Id. at 4.

       Additionally, counsel and Appellant reviewed and completed a nine-

page, 68-question written guilty plea colloquy in which Appellant confirmed

____________________________________________


9
   To the extent the quoted portion of the transcript contains ambiguity
regarding whether the “period of probation set by the [c]ourt” referred to
Appellant’s robbery conviction for which he was to receive 3 to 6 years’
incarceration or his other convictions, the trial court expressly stated in
imposing sentence that Appellant was sentenced to 5 years of probation on
the robbery conviction. See N.T. 10/6/2011, p. 9. Further, the written
sentencing order, which controls if it differs from the sentence imposed in
open court, dispelled any lingering ambiguity as to whether the 5 years of
probation were to be served consecutively to the period of incarceration by
expressly stating as such. See Commonwealth v. Quinlan, 639 A.2d
1235, 1240 (Pa.Super.1994) (noting that trial courts do not have power to
retroactively alter a written sentencing order once time for modification of
sentence has expired). In any event, Appellant does not challenge that the
trial court sentenced him to 5 years of consecutive probation on the robbery
conviction, only that counsel did not inform him that such a sentence was a
possibility.



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that he understood all his rights, including that the court could impose

consecutive sentences and that he would be bound by the terms of the plea

bargain stated on the record before the judge. See Guilty Plea Explanation

of Defendant’s Rights, ¶¶ 5, 49, 57, 68. Appellant further acknowledged in

the written guilty plea colloquy that he was entering the plea knowingly,

voluntarily, and intelligently, that he had ample opportunity to consult with

counsel, and that he was satisfied with counsel’s representation. See id. at

¶¶ 52-56, 60-63.    He is further bound by these written statements.       See

McCauley, supra.

      At the PCRA hearing, trial counsel testified that, although he had no

specific recollection of Appellant’s guilty plea hearing, his normal practice is

not to promise defendants anything regarding the terms of probation where

an agreement called for the trial court to set the probationary period. See

N.T. 12/4/2013, pp. 8-9. Appellant, on the other hand, testified trial counsel

indicated Appellant was pleading guilty to 3 to 6 years’ incarceration and

that any probationary period would be served concurrently. See id. at 22-

23.   The PCRA court found trial counsel credible and Appellant incredible.

See PCRA Court Opinion and Order, March 31, 2014, p. 2.             We see no

reason to disturb this credibility determination. Commonwealth v. Spotz,

84 A.3d 294, 319 (Pa. 2014) (noting Superior Court must defer to credibility




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determinations of PCRA court that has personally observed demeanor of

witnesses). Accordingly, we find Appellant’s claim lacks merit.10

       Next, Appellant claims that he did not knowingly waive his right to a

pre-sentence report. See Appellant’s Brief, pp. 11-12. This claim also fails.

       The PCRA court explained its denial of this claim as follows:

       [Appellant] claims he did not knowingly, intelligently or
       voluntarily waive his right to a pre-sentence report. What is lost
       on [Appellant] is that the time to accept the deal was when it
       was offered and he did so. Part of the deal was that sentence
       would be imposed immediately following the change of plea
       proceeding. The [c]ourt recognizes the right to a pre-sentence
       report in cases such as this. However, his right to a PSR springs
       from a rule of criminal procedure which generates its influence
       from the [D]ue [P]rocess [C]lause. Considering one has the
       ability to waive constitutional rights, the [c]ourt has no
       hesitation in concluding that [Appellant] can waive his right to a
       PSR within the confines of a guilty plea.

PCRA Court Opinion and Order, March 31, 2014, p. 2. We find this analysis

supported by the evidence of record and free of legal error.      See Barndt,

supra; see also Commonwealth v. Stockard, 499 A.2d 598, 600

(Pa.Super.1985) (noting allegation that trial court undertook sentencing




____________________________________________


10
   To the extent Appellant attempts to incorporate the claim that trial
counsel was further ineffective for “failing to pursue a sentencing mitigation
strategy through Allegheny County’s [JRS][,]” we find such a claim
unconvincing. See Appellant’s Brief, pp. 9-10. For the reasons stated
supra, Appellant knowingly and voluntarily entered into the October 6, 2011
plea agreement, even though it contained no JRS-based “mitigation.”




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without a presentence report does not go to the legality of the sentence

imposed and can therefore be waived).

       Order affirmed. Appellant’s Motion for Extension of Time to File Reply

Brief denied.11



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/27/2015




____________________________________________


11
  Appellant bases his Motion for Extension of Time to File Reply Brief on yet-
to-be-received JRS documents he claims “could make or break Appellant’s
case on appeal.” See Motion for Extension of Time to File Reply Brief, p. 1.
Because Appellant could not use any documents received pursuant to his
JRS document release request to supplement the certified record and/or
otherwise support claims in the instant appeal, we deny this motion. See
Motion In Opposition to Motion for Extension of Time to File Reply Brief, p. 2;
see also Ruspi v. Glatz, 69 A.3d 680, 690-91 (Pa.Super.2013) (noting that
materials not in the certified record do not exist for purposes of appellate
review.).



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