J-S23004-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

JARVAY DAVIS,

                        Appellant                   No. 1628 EDA 2015


             Appeal from the PCRA Order entered May 1, 2015
           in the Court of Common Pleas of Philadelphia County
           Criminal Division, at No(s): CP-51-CR-0012420-2009
                                        CP-51-CR-0012421-2009


BEFORE: PANELLA, J., OTT, J., and FITZGERALD, J.

MEMORANDUM BY PANELLA, J.                              FILED MAY 03, 2016

     Jarvay Davis (“Appellant”) appeals from the order dismissing his

petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A.

§§ 9541-9546. We affirm.

     Appellant entered a negotiated guilty plea to burglary and related

charges at two separate dockets. In exchange, the Commonwealth withdrew

multiple other charges and agreed to recommend a de-mandatorized

aggregate sentence of nine to eighteen years of imprisonment. On July 19,

2012, the trial court sentenced Appellant in accordance with the plea

agreement. Appellant filed neither a post-sentence motion nor a direct

appeal.

     Appellant filed a timely pro se PCRA petition, the PCRA court appointed

counsel, and PCRA counsel filed an amended petition. Within this petition,
J-S23004-16



Appellant asserted his plea counsel misinformed him that “the two burglaries

he was charged with . . . would have been his second and third strikes under

Pennsylvania’s Three Strikes Law and that the mandatory sentences upon

conviction would have been 10 to 20 years on one and an additional 25 to

50 years on the other.” PCRA Petition, 7/31/14, at 2. According to Appellant,

he “pled guilty to avoid this possibility” and because the “information

[provided by plea counsel] was incorrect . . . [his] plea was not knowing and

voluntary.” Id.

       The Commonwealth moved to dismiss the PCRA petition. The PCRA

court issued Pa.R.Crim.P. 907 notice of intent to dismiss Appellant’s PCRA

petition without a hearing. Appellant filed a pro se response, but the PCRA

court dismissed the petition. This appeal follows.

      Appellant now claims that the PCRA court erred in failing to hold an

evidentiary hearing in this case because “substantial issues of disputed fact

were raised in the PCRA petition.” Appellant’s Brief at 8. He asserts that plea

counsel failed to properly advise him of the potential penalties that he faced

if he pled guilty, thereby rendering his guilty plea “not knowing or

voluntary.” Id. at 10. According to Appellant, “[t]hese issues of disputed fact

could only be determined by holding an evidentiary hearing and to fail to do

so was error.” Id.

      This Court’s standard of review regarding an order dismissing a

petition under the PCRA is whether the determination of the PCRA court is

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

                                     -2-
J-S23004-16



Commonwealth v. Halley, 870 A.2d 795, 799 n.2 (Pa. 2005). The PCRA

court’s findings will not be disturbed unless there is no support for the

findings in the certified record. See Commonwealth v. Carr, 768 A.2d

1164, 1166 (Pa. Super. 2001). Moreover, a PCRA court may decline to hold

a hearing on the petition if the PCRA court determines that the petitioner’s

claim is patently frivolous and is without a trace of support either in the

record or from other evidence. See Commonwealth v. Jordan, 772 A.2d

1011, 1014 (Pa. Super. 2001).

      Because Appellant’s claims challenge the stewardship of prior counsel,

we apply the following principles. Counsel is presumed to be effective, and

Appellant has the burden of proving otherwise. See Commonwealth v.

Pond, 846 A.2d 699, 708 (Pa. Super. 2004).

      In order for Appellant to prevail on a claim of ineffective
      assistance of counsel, he must show, by a preponderance of the
      evidence, 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. Appellant must demonstrate:
      (1) the underlying claim is of arguable merit; (2) that counsel
      had no reasonable strategic basis for his or her action or
      inaction; and (3) but for the errors and omissions of counsel,
      there is a reasonable probability that the outcome of the
      proceedings would have been different. The petitioner bears the
      burden of proving all three prongs of the test.

Commonwealth v. Johnson, 868 A.2d 1278, 1281 (Pa. Super. 2005)

(citations omitted). In assessing a claim of ineffectiveness, when it is clear

that appellant has failed to meet the prejudice prong, the court may dispose

of the claim on that basis alone, without a determination of whether the first

                                    -3-
J-S23004-16


two prongs have been met. See Commonwealth v. Travaglia, 661 A.2d

352, 357 (Pa. 1995). Counsel cannot be deemed ineffective for failing to

pursue a meritless claim. See Commonwealth v. Loner, 836 A.2d 125,

132 (Pa. Super. 2003) (en banc).

      “A criminal defendant has the right to effective counsel during a plea

process….” Commonwealth v. Hickman, 799 A. 2d 136, 141 (Pa. Super.

2002). A claim challenging the effectiveness of plea counsel is cognizable

under the PCRA. See 42 Pa.C.S.A. § 9543(a)(2)(ii); Commonwealth v.

Lee, 820 A.2d 1285, 1287 (Pa. Super. 2003). We review allegations of

counsel’s ineffectiveness in connection with a guilty plea as follows.

      The standard for post-sentence withdrawal of guilty pleas
      dovetails with the arguable merit/prejudice requirements for
      relief based on a claim of ineffective assistance of plea counsel
      under which 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.

Commonwealth v. Morrison, 878 A.2d 102, 105 (Pa. Super. 2005) Id., at

105 (citations omitted). “This standard is equivalent to the ‘manifest

injustice’ standard applicable to all post-sentence motions to withdraw a

guilty plea.” Id. (citation omitted). “To succeed in showing prejudice, the

defendant must show that it is reasonably probable that, but for counsel’s

errors, he would not have pleaded guilty and would have gone to trial.”

Commonwealth v. Hickman, 799 A. 2d 136, 141 (Pa. Super. 2002).

      In addition, with respect to guilty pleas,


                                      -4-
J-S23004-16


      [o]ur law presumes that a defendant who enters a guilty plea
      was aware of what he was doing. He bears the burden of proving
      otherwise.

                          *      *         *

      The long standing rule of Pennsylvania law is that a defendant
      may not challenge his guilty plea by asserting that he lied while
      under oath, even if he avers that counsel induced the lies. A
      person who elects to plead guilty is bound by the statements he
      makes in open court while under oath and may not later assert
      grounds for withdrawing the plea which contradict the
      statements he made at his plea colloquy.

                          *      *         *

      [A] defendant who elects to plead guilty has a duty to answer
      questions truthfully. We [cannot] permit a defendant to
      postpone the final disposition of his case by lying to the court
      and later alleging that his lies were induced by the prompting of
      counsel.

Commonwealth v. Pollard, 832 A.2d 517, 523-24 (Pa. Super. 2003)

(citations omitted).

      Our review of the record supports the PCRA court’s conclusion that

Appellant’s current claim is refuted by his responses in both the oral and

written plea colloquies. As PCRA court explained:

      Even if [Appellant’s] allegations that his attorney misinformed
      him of the maximum sentences he faced were true, this error
      would not negate the knowing and voluntary nature of [his] plea.
      The plea colloquy forms explicitly stated the maximum sentences
      that [Appellant] faced. By signing those forms, [Appellant]
      represented that he read and understood them.

      During the oral colloquy, [Appellant] again confirmed that he
      had reviewed the written guilty plea colloquy forms with his
      attorney and understood the maximum sentences he faced. He
      was given multiple opportunities to ask questions or to request
      additional time to speak with his attorney. He stated that he did


                                     -5-
J-S23004-16


      not have any questions and did not need to confer with his
      attorney.

      Finally, the Assistant District Attorney explained to [Appellant]
      that his conviction for the burglary, attempted burglary, and
      conspiracy charges constituted his second strike. She explained
      that if he were convicted of a crime of violence in the future, he
      would face a mandatory sentence of 25 years to life
      imprisonment. [Appellant] said that he understood and, again,
      that he did not have any questions for his attorney or the court.

      As the record reflects, [Appellant] had numerous chances to
      address his attorney and/or the court regarding his sentencing
      exposure and any conflicting information he may have received.
      His failure to avail himself of these opportunities is evidence of
      the voluntary and knowing nature of his plea. Moreover,
      [Appellant’s] sentencing hearing was deferred for three weeks
      following his conviction. Despite having this time to reflect on
      the plea colloquies, [Appellant] still raised no questions or
      concerns, thereby proving that his plea was voluntarily and
      knowingly tendered. Because the record clearly demonstrated
      that [Appellant’s] guilty plea was knowingly and voluntarily
      made, [Appellant] was not prejudiced by counsel’s alleged
      ineffectiveness. Therefore, the court did not err in denying relief
      without holding a hearing.

PCRA Court Opinion, 9/21/15, at 10-11 (citation omitted). Thus, Appellant’s

answers to the court’s questions during the oral plea colloquy, as well as

those provided in the written colloquy, contradict Appellant’s present claim.

      Finally, Appellant avoided mandatory sentencing by entering his

negotiated plea and, for two separate incidents, received a concurrent

sentence of nine to eighteen years of imprisonment. Appellant cannot now

claim that his plea was involuntary simply because he is unsatisfied with the

sentence to which he previously agreed. Cf. Commonwealth v. Flick, 802

A.2d 620, 623 (Pa. Super. 2002) (explaining that post-sentence motions to




                                     -6-
J-S23004-16


withdraw guilty pleas “are subject to higher scrutiny since courts strive to

discourage entry of guilty pleas as sentencing-testing devices”).

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/3/2016




                                    -7-
