J-S20016-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA          :   IN THE SUPERIOR COURT OF
                                       :        PENNSYLVANIA
                                       :
              v.                       :
                                       :
                                       :
 JOSHUA JAMES STEELE                   :
                                       :
                   Appellant           :   No. 994 WDA 2018

           Appeal from the PCRA Order Entered June 11, 2018
   In the Court of Common Pleas of Fayette County Criminal Division at
                     No(s): CP-26-CR-0001673-2016,
           CP-26-CR-0001674-2016, CP-26-CR-0001675-2016,
           CP-26-CR-0001676-2016, CP-26-CR-0001677-2016

 COMMONWEALTH OF PENNSYLVANIA          :   IN THE SUPERIOR COURT OF
                                       :        PENNSYLVANIA
                                       :
              v.                       :
                                       :
                                       :
 JOSHUA JAMES STEELE                   :
                                       :
                   Appellant           :   No. 1001 WDA 2018

           Appeal from the PCRA Order Entered June 11, 2018
   In the Court of Common Pleas of Fayette County Criminal Division at
                     No(s): CP-26-CR-0001673-2016,
           CP-26-CR-0001674-2016, CP-26-CR-0001675-2016,
           CP-26-CR-0001676-2016, CP-26-CR-0001677-2016

 COMMONWEALTH OF PENNSYLVANIA          :   IN THE SUPERIOR COURT OF
                                       :        PENNSYLVANIA
                                       :
              v.                       :
                                       :
                                       :
 JOSHUA JAMES STEELE                   :
                                       :
                   Appellant           :   No. 1005 WDA 2018

           Appeal from the PCRA Order Entered June 11, 2018
J-S20016-19



   In the Court of Common Pleas of Fayette County Criminal Division at
                     No(s): CP-26-CR-0001673-2016,
           CP-26-CR-0001674-2016, CP-26-CR-0001675-2016,
           CP-26-CR-0001676-2016, CP-26-CR-0001677-2016

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 JOSHUA JAMES STEELE                     :
                                         :
                   Appellant             :   No. 1006 WDA 2018

           Appeal from the PCRA Order Entered June 11, 2018
   In the Court of Common Pleas of Fayette County Criminal Division at
                     No(s): CP-26-CR-0001673-2016,
           CP-26-CR-0001674-2016, CP-26-CR-0001675-2016,
           CP-26-CR-0001676-2016, CP-26-CR-0001677-2016

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 JOSHUA JAMES STEELE                     :
                                         :
                   Appellant             :   No. 1007 WDA 2018

           Appeal from the PCRA Order Entered June 11, 2018
   In the Court of Common Pleas of Fayette County Criminal Division at
                     No(s): CP-26-CR-0001673-2016,
           CP-26-CR-0001674-2016, CP-26-CR-0001675-2016,
           CP-26-CR-0001676-2016, CP-26-CR-0001677-2016


BEFORE: GANTMAN, P.J.E., McLAUGHLIN, J., and MUSMANNO, J.

MEMORANDUM BY McLAUGHLIN, J.:                        FILED JUNE 04, 2019

     Joshua James Steele appeals from the order dismissing his petition filed

under the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546. Steele


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claims the PCRA court erred in denying his trial counsel ineffectiveness claims.

We affirm.

       Steele was charged at five different docket numbers with burglary and

related offenses.1 In September 2016, Steele appeared for his guilty plea

hearing. Counsel2 stated that Steele had completed a guilty plea colloquy,

wanted to enter a guilty plea, and wanted to accept the Commonwealth’s

offer. N.T., 9/21/2016, at 2. Counsel stated that she had informed Steele that

he could proceed to trial or enter a general guilty plea. Id. She further stated

that Steele had inquired about “good time and things of that nature” and that

counsel had explained those matters “were up to the [Department of

Corrections] and the Parole Board,” and that he would receive credit for time

served for the charges to which he was pleading guilty. Id.



____________________________________________


1 At docket CP-26-CR-0001673-2016, Steele was charged with burglary, 18
Pa.C.S.A. § 3502(a), criminal trespass, 18 Pa.C.S.A. § 3503(a)(1), and
criminal mischief, 18 Pa.C.S.A. § 3304(a)(5). At docket CP-26-CR-0001674-
2016, Steele was charged with burglary, criminal trespass, resisting arrest,
18 Pa.C.S.A. § 5104, theft, 18 Pa.C.S.A. § 3921(a), receiving stolen property,
18 Pa.C.S.A. § 3925(a), and criminal mischief. At docket CP-26-CR-0001675-
2016, Steele was charged with burglary, possession of a firearm prohibited,
18 Pa.C.S.A. §6105(a), criminal trespass, receiving stolen property, and theft.
At docket CP-26-CR-0001676-2016, Steele was charged with burglary,
possession of firearm prohibited, criminal trespass, theft, and receiving stolen
property. At docket CP-26-CR-1677-2016, Steele was charged with burglary,
receiving stolen property, firearms not to be carried without a license, 18
Pa.C.S.A. § 6106(a)(1), and altering mark of identification, 18 Pa.C.S.A. §
6117(a).

2 Steele was represented by two attorneys, but only one attended the guilty
plea hearing.

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      The Commonwealth stated that it had offered a negotiated sentence of

11 to 22 years’ incarceration plus restitution. Id. at 3. Steele agreed that he

had reviewed the guilty plea with his attorneys; he understood everything

contained in the agreement; he had signed it of his own free will; he was

waiving his rights; he understood the charges against him; and no one

promised him anything, threatened him, or used force against him to cause

him to plead guilty. Id. at 4-5. He did not have any questions regarding the

rights set forth in the agreement. Id. at 4.

      The Commonwealth reviewed the facts underlying the charges at the

five docket numbers, and Steele agreed to the facts. Id. at 6-11. Steele

agreed that he had spoken with his attorneys and had decided to plead guilty.

Id. at 11-12. He also agreed that he was satisfied with his counsel and had

no additional information to bring to the court’s attention. Id. at 12.

      The court accepted Steele’s guilty plea and sentenced Steel to an

aggregate sentence of 11 to 22 years’ imprisonment. Id. at 12-19. Steele did

not file a direct appeal.

      In September 2017, Steele filed a timely PCRA petition, alleging his trial

counsel was ineffective. The PCRA court held a hearing, at which Steele and

his two trial counsel testified. The PCRA court found the testimony of Steele’s

two trial counsel credible and found the testimony of Steele not credible. Trial

Court Opinion, filed June 11, 2018, at Findings of Fact ¶¶ 26-27 (“1925(a)

Op.”).




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      The testimony and evidence presented at the evidentiary hearing, and

which the PCRA court credited, established the following. Steele was

represented by two attorneys, whom he met for the first time on the day of

his preliminary hearing. N.T., 12/5/2017, at 49, 62. His counsel had reviewed

the criminal complaints prior to arrival and arrived 45 minutes to an hour

before the hearing so that they could meet with Steele. Id. at 50, 63-64. The

Commonwealth offered a plea deal, which included a sentence of 12 to 24

years’ incarceration. Id. at 66. Steele directed his counsel, “[T]ell them ten to

twenty, I will take it.” Id. Steele’s counsel informed the Commonwealth of the

counter-offer, and the Commonwealth then offered 11 to 22 years’

incarceration. Id. at 66-67. Counsel informed Steele of the offer and told

Steele that if he wanted a preliminary hearing, the “offer was off the table.”

Id. at 67. Steele and counsel discussed the plea offer, and Steele decided to

accept it. Id. at 68. The court scheduled a plea hearing for a later date.

      At some point before the plea hearing, counsel received a phone call

from Steele’s wife, who informed counsel that Steele did not want to agree to

the guilty plea. Id. at 69. In a letter dated September 14, 2016, counsel set

forth what counsel then believed to be the applicable sentencing guideline

ranges and maximum sentences for the charges filed against Steele. Id. at

69-72. Counsel hand-delivered the letter when he met with Steele. Id. at 70.

This letter stated Steele’s prior record score was a Repeat Felony Offender

(“RFEL”). Counsel reviewed the dockets with Steele and Steele stated he

wanted to plead guilty, under the terms of the agreement. Id. at 73.

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J-S20016-19



      In a second letter dated September 19, 2016, and hand-delivered to

Steele, counsel advised Steele that Steele had a prior record score of five, and

he was not a RFEL. Id. at 73-74. In the letter, counsel stated the

Commonwealth’s offer had been based on a prior record score of five and

again went over the guideline ranges and maximum sentences. Id. at 74.

Counsel also informed Steele that he could reject the offer and proceed to a

trial, or enter a general guilty plea and allow the trial court to determine the

sentence. Id. at 56. At the end of the meeting, counsel believed Steele was

going to accept the negotiated guilty plea. Id. at 76.

      The court denied Steele’s PCRA petition. Steele filed a timely Notice of

Appeal.

      Steele raises the following issues on appeal:

          I. Did the PCRA court err in denying [Steele’s] petition for
          post-conviction relief when plea counsel misinformed
          [Steele] of the possible maximum sentences and [Steele]
          relied on this misrepresentation in entering a plea of guilty?

          II. Did the PCRA court err in denying [Steele’s] petition for
          post-conviction relief when plea counsel affirmatively misled
          [Steele] regarding the possibility of “good time” and
          [Steele] relied on this misrepresentation in entering a plea
          of guilty?

Steele’s Br. at 4.

      Our standard of review from the denial of a PCRA petition “is limited to

examining whether the PCRA court's determination is supported by the

evidence of record and whether it is free of legal error.” Commonwealth v.

Ousley, 21 A.3d 1238, 1242 (Pa.Super. 2011).


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      To prevail on an ineffective assistance of counsel claim, the petitioner

must establish: “(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. Spotz, 84 A.3d 294, 311

(Pa. 2014). To establish the prejudice prong where an appellant has entered

a guilty plea, “the appellant must demonstrate ‘it is reasonably probable that,

but for counsel’s errors, he would not have pleaded guilty and would have

gone to trial.’” Commonwealth v. Timchak, 69 A.3d 765, 770 (Pa.Super.

2013) (quoting Commonwealth v. Rathfon, 899 A.2d 365, 370 (Pa.Super.

2006)). “[C]ounsel is presumed to be effective and the burden of

demonstrating ineffectiveness rests on appellant.” Ousley, 21 A.3d at 1244

(quoting Commonwealth v. Rivera, 10 A.3d 1276, 1279 (Pa.Super. 2010)).

“The failure to prove any one of the three [ineffectiveness] prongs results in

the failure of petitioner’s claim.” Id. (quoting Rivera, 10 A.3d at 1279).

      Steele first claims that his counsel failed to inform him of the proper

maximum penalty for the offenses. He claims counsel only briefly met with

him regarding the deal before the preliminary hearing, and he had only a half

hour to decide. He notes he expressed his doubts to counsel, and his counsel

responded with two letters allegedly containing inaccurate information. He

claims both the letter stating Steele was a RFEL and the letter correcting that

statement listed inaccurate guideline information and inaccurate maximum

sentences. However, he does not state what he believes was inaccurate about




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J-S20016-19



the maximum sentences or inaccurate about the guidelines listed in the

second letter.

      He further claims counsel did not tell him that the burglary and theft

charges would merge for sentencing purposes and that the court could choose

to impose sentences concurrent to, rather than consecutive to, sentences

imposed on other convictions. He claims he was rushed into accepting the

plea, that he expressed doubts about the guilty plea, that counsel’s

misrepresentations induced him to enter the guilty plea, and that he would

not have pled guilty absent the misrepresentations.

      The PCRA court found that the maximums for the crimes charged and

the guidelines listed by counsel were not erroneous. 1925(a) Op. at 7.

Although the first letter stated Steele was a RFEL, the second letter corrected

the prior record score. Id. at 8. Further, counsel explained to Steele that the

guilty plea negotiations had been based on the correct guidelines and that he

could reject the deal. Id.

      The court further addressed Steele’s claim that counsel was ineffective

by not informing him that the sentences could run concurrent to each other

and that some convictions would merge for sentencing purposes. Id. at 8-9.

The PCRA court noted that counsel went over the guidelines with Steel, and

advised him of the maximum sentences he could receive. Id. at 80. It stated

that “[c]onsidering that [Steele] had a prior record, was facing charges in

another jurisdiction, and was facing five separate burglary charges, some of

which involved firearms, trial counsel was providing effective assistance by

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J-S20016-19



advising [Steele] of the guideline ranges applicable to him.” Id. at 8-9.

Further, it stated that “advising [Steele] that sentences can run concurrently

where there is no plea agreement is akin to trial counsel asking [Steele] to

roll the dice and hope for the best. Such advice is contrary to providing

effective assistance of counsel.” Id. at 9.

      We agree and conclude the PCRA court findings of fact are supported by

the record and it did not err in finding counsel was not ineffective.

      Steele also argues his plea was unknowing because he believed he

would receive “good time.” Steele’s Br. at 17. Based on prior incarceration in

a county facility, Steele believed he would receive a “good time” credit against

his sentence of five days for every month in which he behaved well. Id. at 17,

19. He claims that although state facilities did not award “good time,” counsel

told him that whether he received “good time” would be up to the Department

of Corrections. Id.

      The PCRA court did not address this claim. Steele presented evidence to

support this claim at the PCRA evidentiary hearing, but did not raise it in his

amended PCRA petition and did not seek an opportunity to supplement the

amended petition. At the hearing, after the Commonwealth argued that he

had waived the claim, the PCRA court stated that following the hearing it would

“ask the parties to submit to the Court[] suggested Findings of Fact and

Conclusions of Law” where the parties could address the waiver issue, but “for

purposes of the record, [it was] allowing counsel leeway.” N.T., 12/5/17, at

58. It does not appear that the PCRA court addressed whether this claim was

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waived, and did not address the merits of the claim. Regardless of waiver,

however, the claim lacks merit.

      At the plea hearing, Steele’s counsel stated:

         [M]y client did inquire about good time and things of that
         nature, and I explained to him that that is up to the
         [Department of Corrections] and the Parole Board, and I
         believe that Your Honor had explained to him that he would
         receive credit for time served if it is to be given to him on
         these cases so long as no other county is taking that time.

N.T., 9/21/2016, at 2-3. During the colloquy, Steele stated he was satisfied

with his attorney and had no questions regarding the plea. Id. at 4, 12. At the

PCRA hearing, counsel testified that she told Steele that she was “unaware of

good time but he was adamant that there was good time. And I said anything

that involves credit or time is up to the [Department of Corrections]. That

wouldn’t be up to the [c]ourt.” N.T., 12/5/2017, at 60. The PCRA court

credited this testimony. 1925(a) Op. at 5.

      Therefore, Steele’s counsel informed him that she was unaware of “good

time,” and Steele stated he had no additional questions at the time of the

guilty plea. His claim now that he pled guilty because he believed he would be

entitled to 5 days of “good time” for every month of incarceration lacks merit.

Because the underlying claim lacks merit, his trial counsel ineffectiveness

claim also is meritless.

      Order affirmed.




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J-S20016-19


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/4/2019




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