J-S82038-17


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF                         :    IN THE SUPERIOR COURT OF
PENNSYLVANIA,                           :          PENNSYLVANIA
                                        :
                Appellee                :
                                        :
          v.                            :
                                        :
ELIEZER PEREZ,                          :
                                        :
                Appellant               :     No. 989 WDA 2017

                 Appeal from the PCRA Order June 13, 2017
                in the Court of Common Pleas of Erie County
            Criminal Division at No(s): CP-25-CR-0001691-2015
                                        CP-25-CR-0001700-2015

BEFORE: BENDER, P.J.E., STEVENS, P.J.E.,* and STRASSBURGER, J.**

MEMORANDUM BY STRASSBURGER, J.:                      FILED MARCH 6, 2018

     Eliezer Perez (Appellant) appeals from the order entered June 13, 2017,

dismissing his petition filed under the Post-Conviction Relief Act (PCRA), 42

Pa.C.S. §§ 9541-9546. We affirm.

           On November 3, 2015, [Appellant] pled guilty to charges at
     two separate docket numbers for crimes stemming from his
     kidnapping, terrorizing, and sexually assaulting his [15-year-old
     step-daughter] in a stolen car. At docket number 1691 of 2015,
     [Appellant] pled guilty to involuntary indeviate sexual intercourse,
     unlawful restraint, indecent assault (2 counts)[,] and corruption
     of minors. In exchange, the Commonwealth nolle prossed counts
     of kidnapping, indecent exposure, simple assault, and indecent
     assault. At docket number 1700 of 2015, [Appellant] pled guilty
     to an amended charge of unauthorized use of a motor vehicle in
     exchange for the nolle pros of counts of receiving stolen property,
     driving a vehicle while license revoked or suspended[,] and theft
     by unlawful taking. [Appellant’s] maximum combined sentencing
     exposure under both dockets, pursuant to the plea agreement,
     was 46 years’ incarceration and an $85,000 fine. On February 10,

* Former Justice specially assigned to the Superior Court.
** Retired Senior Judge assigned to the Superior Court.
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        2016, [Appellant] was given an aggregate sentence at both
        dockets to [7 years and 8 months to 27 years of incarceration].
        No post-sentence motion was filed. No direct appeal was filed.

PCRA Court Opinion, 5/23/2017, at 1-2.

        On December 19, 2016, Appellant timely filed a counseled PCRA

petition.1 After conducting an evidentiary hearing, the PCRA court notified

Appellant that it intended to dismiss his petition.2 By order of June 13, 2017,

the PCRA court dismissed Appellant’s PCRA petition. Appellant timely filed a

notice of appeal. Both Appellant and the PCRA court complied with Pa.R.A.P.

1925.

        On appeal, Appellant alleges that plea counsel is responsible for his

entering an unknowing and involuntary plea. Specifically, Appellant contends

that plea counsel told him if he pled guilty, he would receive a sentence of two

to five years of incarceration, and counsel’s statement induced Appellant to

plead guilty where he would not have otherwise.      Appellant’s Brief at 2, 5.




1In its May 23, 2017, and June 13, 2017 orders, the PCRA court stated that
Appellant pro se filed his PCRA petition and counsel later filed a supplemental
petition. According to the docket, however, Appellant filed only one petition,
which was filed through counsel.

2 The PCRA court stated it was issuing the notice of intent to dismiss pursuant
to Pa.R.Crim.P. 907(1), but that rule applies only to dispositions of petitions
without a hearing. Rule 908, which applies to decisions following evidentiary
hearings, does not require the court to notify the petitioner of its intent to
dismiss the petition. Pa.R.Crim.R.P. 908(D)(1) (“If the judge dismisses the
petition, the judge promptly shall issue an order denying relief. The order shall
be filed and served as provided in Rule 114.”).
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       “On review of orders denying PCRA relief, our standard is to determine

whether the PCRA court’s ruling is free of legal error and supported by the

record.” Commonwealth v. Boyer, 962 A.2d 1213, 1215 (Pa. Super. 2008).

Because Appellant challenges the actions of plea counsel, we observe the

following.

      “Allegations that counsel misadvised a criminal defendant in the plea

process are properly determined under the ineffectiveness of counsel

subsection of the PCRA [42 Pa.C.S. § 9543(a)(2)(ii),] not the [sub]section

specifically   governing   guilty   pleas    [42   Pa.C.S.   §   9543(a)(2)(iii)].”

Commonwealth v. Lynch, 820 A.2d 728, 730 n.2 (Pa. Super. 2003).

         It is well-established that counsel is presumed to have
         provided effective representation unless the PCRA petitioner
         pleads and proves all of the following: (1) the underlying
         legal claim is of arguable merit; (2) counsel’s action or
         inaction lacked any objectively reasonable basis designed to
         effectuate his client’s interest; and (3) prejudice, to the
         effect that there was a reasonable probability of a different
         outcome if not for counsel’s error.

      The PCRA court may deny an ineffectiveness claim if the
      petitioner’s evidence fails to meet a single one of these prongs.
      Moreover, a PCRA petitioner bears the burden of demonstrating
      counsel’s ineffectiveness.

Commonwealth v. Franklin, 990 A.2d 795, 797 (Pa. Super. 2010) (internal

citations omitted).

      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.
      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.
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      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.
      The reasonable probability test is not a stringent one; it merely
      refers to a probability sufficient to undermine confidence in the
      outcome.

Commonwealth v. Barndt, 74 A.3d 185, 192-93 (Pa. Super. 2013)

(citations and quotation marks omitted).

      In the instant case, after an evidentiary hearing and review of the

record, the PCRA court determined that Appellant had entered his plea

knowingly and voluntarily. Specifically, the PCRA court rejected Appellant’s

testimony that his plea counsel, Anthony Rodriguez, Esquire, told him that he

would receive only two-to-five years of incarceration if he pled guilty; instead,

the PCRA court believed plea counsel’s testimony that he never made such a

promise or representation. Notice of Intent to Dismiss, 5/23/2017, at 3-6.

      Appellant argues that the PCRA court erred by finding Attorney

Rodriguez’s testimony to be more credible than the testimony of Appellant.

Appellant’s Brief at 9. Appellant notes that his testimony was consistent with

the testimony of his cousin, who hired Attorney Rodriguez on Appellant’s

behalf. Id. Appellant contends the PCRA court erred by rejecting Appellant’s

detailed testimony in favor of Attorney Rodriguez’s self-serving testimony. Id.

      Appellant’s argument fails. “The law is clear that we are bound by the

credibility determinations of the PCRA court, where such findings have support

in the record.” Commonwealth v. Clark, 961 A.2d 80, 87 (Pa. 2008). Here,


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Attorney Rodriguez testified that not only did he not specifically promise

Appellant that he would receive a two-to-five year sentence, he never even

suggested that such a sentence would be possible based upon the severity of

Appellant’s pending charges. N.T., 4/18/2017, at 51, 53-54, 60-61. The PCRA

court found this testimony to be credible compared to the testimony of

Appellant and his cousin, who both testified that Attorney Rodriguez told them

Appellant would receive a two-to-five year sentence if Appellant pled guilty,

notwithstanding Appellant’s maximum exposure to 46 years of incarceration.

Notice of Intent to Dismiss, 5/23/2017, at 3. The PCRA court also credited

Attorney Rodriguez’s testimony that neither Appellant nor his cousin contacted

Attorney Rodriguez to ask questions or to request that he file a post-sentence

motion or appeal, which the PCRA court found to be significant given the

disparity between the sentence Appellant received and the sentence Appellant

and his cousin allegedly were expecting. Id.; N.T., 4/18/2017, at 55-56.

      Moreover, a review of Appellant’s plea colloquy belies his claim that he

believed he would be receiving a two-to-five year sentence if he pled guilty.

During his oral plea colloquy, Appellant stated that he was not promised any

type of sentence in exchange for entering the plea; he was satisfied with his

legal representation; and he understood that he was facing the possibility of

going to jail for 46 years if he pled guilty. N.T., 11/3/2015, at 16-18.

      Thus, because the evidence in the record supports the PCRA court’s

finding that Attorney Rodriguez did not promise Appellant a specific sentence


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if he pled guilty, Appellant’s claim that Attorney Rodriguez rendered ineffective

assistance of counsel has no merit. Therefore, the PCRA court did not err by

dismissing Appellant’s PCRA petition due to Appellant’s failure to meet his

burden in demonstrating plea counsel’s ineffectiveness.        Accordingly, we

affirm the order of the PCRA court denying Appellant’s PCRA petition.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/6/2018




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