J-S38039-18


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                        :        PENNSYLVANIA
                   Appellee             :
                                        :
             v.                         :
                                        :
                                        :
ROBERT BENSON EDWARDS                   :
                                        :
                   Appellant            :   No. 126 WDA 2018


              Appeal from the PCRA Order December 11, 2017
          in the Court of Common Pleas of Westmoreland County
           Criminal Division at No(s): CP-65-CR-0001847-2016

BEFORE:    BOWES, NICHOLS, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:                  FILED AUGUST 27, 2018

      Robert Benson Edwards (Appellant) appeals from the order entered

December 11, 2017, dismissing his petition filed under the Post Conviction

Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.

      In 2016, Appellant robbed a jewelry store after threatening the owner

with intimations that he had a gun.     He was charged with the following

crimes: (1) one count of first-degree felony robbery in violation of 18

Pa.C.S. § 3701(a)(1)(ii); (2) one count of third-degree felony theft in

violation of 18 Pa.C.S. § 3921(a); (3) two counts of third-degree felony

receiving stolen property in violation of 18 Pa.C.S. § 3925; and (4) one

count of second-degree misdemeanor simple assault in violation of 18

Pa.C.S. § 2701(a)(3). The maximum aggregate sentence a defendant can

receive for these crimes is 43 years.


* Retired Senior Judge assigned to the Superior Court.
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      On August 2, 2016, Appellant and the Commonwealth entered into a

negotiated plea agreement.     In exchange for Appellant’s guilty plea, the

Commonwealth agreed to nolle pros the simple assault and theft charges,

and to reduce the robbery charge to a second-degree felony. Appellant and

the Commonwealth agreed that Appellant would plead guilty to one count of

robbery pursuant to 18 Pa.C.S. § 3701(a)(1)(iv), for which Appellant would

receive a sentence of 4 to 20 years’ incarceration, and two counts of

receiving stolen property, for which Appellant would receive a sentence at

each count of 2 to 7 years’ incarceration to be served concurrently with the

sentence for robbery.   Appellant pled guilty, and the trial court sentenced

Appellant in accordance with the plea agreement.      Appellant did not file a

post-sentence motion or direct appeal.

      By order entered August 15, 2016, which was within the timeframe

permitted by 42 Pa.C.S. § 5505 (regarding modification of orders within 30

days after its entry and prior to the filing of an appeal), the trial court

amended its sentencing order and reduced Appellant’s maximum sentence

for the robbery count from 20 to 10 years. The trial court explained in the

order that the amendment was “necessary because [the robbery count] is a

felony of the second degree, carrying a maximum legal sentence of [ten]

years.” Trial Court Order, 8/15/2016, at 1.

      On June 28, 2017, Appellant timely filed a pro se PCRA petition, his

first, alleging, inter alia, that his negotiated sentence was illegal; his plea


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counsel rendered ineffective assistance of counsel by negotiating a plea with

an illegal sentence; and the trial court erred by modifying his sentence

without notice to Appellant or without Appellant being present.1   Statement

of Facts attached to PCRA Petition, 6/28/2017, at 1-2.     Appellant averred

that the reduction in the sentence was the result of collusion between the

trial court, the Commonwealth’s attorney, and his plea counsel, and claims

he did not know about the modification until February 2017.        Id. at 2.

Appellant requested that the PCRA court vacate his plea and sentence.

PCRA Petition, 6/28/2017, at 5.

     The PCRA court appointed counsel to represent Appellant.        Counsel

filed a petition to withdraw accompanied by a no-merit letter pursuant to

Commonwealth        v.   Turner,    544   A.2d    927   (Pa.    1988),   and

Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).

Appellant filed a response objecting to counsel’s petition to withdraw, which

he later supplemented with permission of the PCRA court.       Appellant also

filed pro se a petition to amend his PCRA petition along with an amended




1 The August 15, 2016 sentencing order states that the court entered the
order modifying Appellant’s sentence “upon motion of the Commonwealth
and with the consent of the attorney for the defendant.” Id. No written
motion from the Commonwealth appears of record. It is possible the
Commonwealth made an oral motion, but the PCRA court referred to the
order as being entered sua sponte, further confusing matters. Amended
Rule 907 Notice, 11/13/2017, at 3-6.


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PCRA petition.2 In the amended PCRA petition, Appellant, inter alia, averred

that the plea colloquy was defective because it did not inform him of the

maximum sentence he was facing, causing him to enter an unknowing plea.

Amended PCRA Petition, 10/6/2017, at 1-2. He also averred that his plea

counsel did not inform him of the maximum sentence for a second-degree

felony, and this failure, in addition to plea counsel’s failure to object to the

plea colloquy, constituted ineffective assistance of counsel. Id.

      The PCRA court issued an initial and then amended notice of intent to

dismiss the petition pursuant to Pa.R.Crim.P. 907, concluding that (1) the

plea colloquy satisfied the requirements of Pa.R.Crim.P. 590; (2) Appellant

was sentenced to an illegal sentence in excess of the statutory maximum,

but the trial court properly corrected the sentence within the timelines set

forth in 42 Pa.C.S. § 5505; (3) plea counsel was ineffective for allowing

Appellant to plead guilty to an illegal sentence, but Appellant is not entitled

to relief because his sentence ultimately was reduced; therefore, he has not

suffered any prejudice by counsel’s ineffective representation; and (4)

despite plea counsel’s ineffectiveness, Appellant entered a knowing and




2 Amendments to pending PCRA petitions are to be “freely allowed to
achieve substantial justice,” but must be made at the direction or by leave of
the PCRA court. Pa.R.Crim.P. 905(A); Commonwealth v. Porter, 35 A.3d
4, 12 (Pa. 2012). Here, the PCRA court never expressly provided leave to
amend the petition. Nevertheless, the PCRA court implicitly permitted
Appellant to amend his petition by addressing the new claims in its ruling.
See Commonwealth v. Brown, 141 A.3d 491, 503-04 (Pa. Super. 2016);
Amended 907 Notice, 11/13/2017, at 2.
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voluntary plea because the plea colloquy and guilty plea petition were

satisfactory. Amended Rule 907 Notice, 11/13/2017, at 3-6.

      Appellant did not file a response to the Rule 907 notice, and on

December 11, 2017, the PCRA court dismissed Appellant’s petition without

an evidentiary hearing and granted counsel’s petition to withdraw. Appellant

timely filed a notice of appeal. The PCRA court did not order Appellant to file

a statement pursuant to Pa.R.A.P. 1925, and Appellant did not file one. In

lieu of filing an opinion pursuant to Pa.R.A.P. 1925(a), the PCRA court

directed us to its November 13, 2017 opinion accompanying its Rule 907

notice.

      On appeal, Appellant raises four issues:

      (1)   Was [plea] counsel ineffective in negotiating a plea bargain
            to an [illegal] sentence?

      (2)   [Was] the plea colloquy defective and [did it] fail to meet
            the standards of law?

      (3)   Did [the] trial court [err] in arbitrarily altering Appellant[’]s
            sentence?

      (4)   Did [the] trial court abuse its discretion in failing to vacate
            Appellant[’]s guilty plea?

Appellant’s Brief at 3 (capitalization altered; trial court’s answers omitted;

reordered for ease of disposition).

      “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




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

2008).

     Appellant makes the following arguments on appeal: (1) that his plea

counsel gave him erroneous advice to enter into a plea agreement to avoid a

maximum sentence that the trial court never had the authority to impose;

(2) the plea colloquy at his plea hearing was deficient because it did not

inform him of the minimum and maximum sentences he faced; (3) the trial

court improperly modified his sentence outside of Appellant’s presence and

without the notice to Appellant required by 42 Pa.C.S. § 5505;3 and (4) upon

learning that the parties mutually agreed to an illegal sentence, the trial

court should have vacated Appellant’s plea and sentence instead of

modifying the sentence. Appellant’s Brief at 9-14. He also alleges derivative

claims that his plea counsel was ineffective for not addressing the trial

courts’ errors alleged in issues two through four, and his PCRA counsel was

ineffective by seeking to withdraw under Turner/Finley instead of litigating

the claims he raises on appeal. Id.




3 Section 5505 provides: “[e]xcept as otherwise provided or prescribed by
law, a court upon notice to the parties may modify or rescind any order
within 30 days after its entry, notwithstanding the prior termination of any
term of court, if no appeal from such order has been taken or allowed.” 42
Pa.C.S. § 5505.

 In his third issue, Appellant simply argues he was entitled to notice for the
sake of receiving notice; he does not specify what the trial court should have
done in lieu of reducing his sentence. Presumably, he wishes to vacate his
plea, as he argues in his fourth issue.
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      With respect to his arguments regarding the trial court’s alleged errors

in issues two through four, generally, claims of trial court error, other than

those enumerated in 42 Pa.C.S. § 9543(a)(2)(i-viii),4 are not cognizable

under the PCRA. Furthermore, Appellant could have raised these issues on

4 Subsection 9543(a)(2) provides that to be eligible for relief, the
petitioner must plead and prove that the conviction or sentence
resulted from one or more of the following:

      (i) A violation of the Constitution of this Commonwealth or the
      Constitution or laws of the United States 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.

      (ii) 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.

      (iii) A plea of guilty unlawfully induced where the circumstances
      make it likely that the inducement caused the petitioner to plead
      guilty and the petitioner is innocent.

      (iv) The improper obstruction by government officials of the
      petitioner’s right of appeal where a meritorious appealable issue
      existed and was properly preserved in the trial court.

      (v) Deleted.

      (vi) The unavailability at the time of trial of exculpatory evidence
      that has subsequently become available and would have
      changed the outcome of the trial if it had been introduced.

      (vii) The imposition of a sentence greater than the lawful
      maximum.

      (viii) A proceeding in a tribunal without jurisdiction.

42 Pa.C.S. § 9543(a)(2)(i)-(viii).


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direct appeal, but he failed to do so.      See 42 Pa.C.S. § 9544(b) (“For

purposes of this subchapter, an issue is waived if the petitioner could have

raised it but failed to do so before trial, at trial, during unitary review, on

appeal or in a prior state postconviction proceeding.”); 42 Pa.C.S. §

9543(a)(3) (“To be eligible for relief under this subchapter, the petitioner

must plead and prove … [t]hat the allegation of error has not been

previously litigated or waived.”). Thus, Appellant’s claims of trial court error

are both not cognizable and waived.      See Commonwealth v. Spotz, 18

A.3d 244, 270 (Pa. 2011).

      We now turn to Appellant’s claims that his plea counsel was ineffective

for giving him flawed advice in the plea process, and his related claims that

plea counsel was ineffective for not addressing the trial court errors alleged

in issues two through four.5

       “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




5
  Appellant has failed to develop as separate issues his claims regarding the
ineffectiveness of his PCRA counsel in not pursuing issues one through four
and the ineffectiveness of his plea counsel in not addressing the trial court
errors alleged in issues two through four. He also has failed to set forth a
fully developed analysis of these claims in his brief. We could find such
claims to be waived. See Pa.R.A.P. 2116(a); 2119(a). Notwithstanding
Appellant’s failure to comply with our rules of appellate procedure, we will
address such claims on the merits, as his noncompliance does not
substantially impede our appellate review.
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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.

      Thus, to establish prejudice, the defendant must show
      that there is a reasonable probability that, but for
      counsel’s errors, he would not have [pled] 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; emphasis added).

      There is no question that plea counsel’s advice to enter into a plea

with an agreed-upon sentence that exceeded the statutory maximum “fell


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below the range of competence demanded of attorneys in criminal cases.”

Commonwealth v. Kelley, 136 A.3d 1007, 1014 (Pa. Super. 2016).

However, Appellant bore the burden of pleading and proving all three prongs

of the test for ineffectiveness. Thus, Appellant was required to plead and

prove prejudice by alleging that it was reasonably probable that, but for

counsel’s errors, he would not have pled guilty and would have gone to trial.

Because Appellant did not assert prejudice in the first instance before the

PCRA court, the claims he raises on appeal regarding the ineffective

assistance of his plea counsel during the plea process fail as a matter of law.

      Further, even if he had properly pled his claims, Appellant would not

be able to prove that he was prejudiced by plea counsel’s actions.       All of

Appellant’s issues stem from the same faulty premise: that notwithstanding

his eventual sentence reduction, his counsel rendered “unsound advice to

plead guilty under the threat of a sentence that the [t]rial [c]ourt had no

authority to impose[, which] influenced [Appellant] into making a grave and

erroneous decision to plead guilty.” Appellant’s Brief at 9. In other words, it

appears that Appellant is arguing that had he known that he was facing only

ten years versus twenty for the robbery charge, he would have negotiated

the plea agreement differently or taken his chances at trial. See id.

      However, Appellant’s contention that he pled guilty to avoid a twenty-

year sentence that the trial court did not have authority to impose simply is

incorrect.   The Commonwealth initially charged Appellant with first-degree


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felony robbery, which carried a twenty-year maximum sentence.          See 18

Pa.C.S. § 3701(b) (specifying that a violation of subsection 3701(a)(1)(ii) is

a felony of the first degree); 18 Pa.C.S. § 1103(1) (providing for a 20 year

maximum sentence for first-degree felonies).       Appellant’s 4 to 20 year

sentence was illegal only because the crime to which he actually pled guilty

was downgraded to a second-degree felony.         See 18 Pa.C.S. § 3701(b)

(specifying that a violation of subsection 3701(a)(1)(iv) is a felony of the

second degree); 18 Pa.C.S. § 1103(2) (providing for a 10 year maximum for

second-degree felonies).

      Thus, when plea counsel advised Appellant of his potential 20-year

exposure on the robbery charge prior to the plea, Appellant was in fact

facing a possible 20-year sentence on that charge.      Accordingly, Appellant

was faced with a decision between going to trial on all five charges and the

potential of a maximum aggregate sentence of 43 years versus taking a plea

on two charges, including the reduced grading of the robbery count, and

receiving an aggregate maximum sentence of twenty years.             Had plea

counsel recognized that the plea agreement included an illegal sentence,

Appellant still would have been facing the potential of 43 years. Appellant

ultimately received a sentence that was lower than the one he negotiated

when the trial court corrected its mistake.         Thus, Appellant’s issues

regarding plea counsel’s representation of him in connection with his plea fail

due to lack of prejudice.


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      Furthermore, there is no merit to Appellant’s assertion that the trial

court should have vacated his plea.        Unlike the cases cited by Appellant,

there is no basis to withdraw Appellant’s guilty plea because the plea

negotiations were not tainted by misinformation about a maximum sentence.

See, e.g., Commonwealth v. Lenhoff, 796 A.2d 338 (Pa. Super. 2002)

(holding that when considering a motion to withdraw a plea, the court

should examine whether the defendant pled guilty to avoid a maximum

sentence which, by law, could not have been imposed). Thus, plea counsel

was not ineffective for failing to raise this meritless claim. Commonwealth

v. Spotz, 896 A.2d 1191, 1210 (Pa. 2006) (“Counsel will not be deemed

ineffective for failing to raise a meritless claim.”).

      Because all of Appellant’s claims fail, it follows that PCRA counsel was

not ineffective for withdrawing pursuant to Turner/Finley instead of

pursuing these meritless claims.

      Based on the foregoing, the PCRA court did not err by dismissing

Appellant’s PCRA petition. Therefore, we affirm the order of the PCRA court.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/27/2018
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