J-S29023-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

KRISTOPHER EUGENE GARNER

                            Appellant                No. 1388 WDA 2014


                  Appeal from the PCRA Order August 20, 2014
               In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0016150-2007


BEFORE: PANELLA, J., MUNDY, J., and STRASSBURGER, J.*

MEMORANDUM BY MUNDY, J.:                            FILED AUGUST 26, 2015

        Appellant, Kristopher Eugene Garner, appeals from the August 20,

2014 order dismissing his first petition filed pursuant to the Post Conviction

Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546.        After careful review, we

affirm.

        The PCRA court has set forth the facts and procedural history of this

case as follows.

                    This matter arises out of [Appellant]’s
              conviction after a jury trial on August 27, 2009 of
              [h]omicide in the [t]hird [d]egree and [c]riminal
              [c]onspiracy for which he was sentenced to 15 to 30
              years for the murder conviction and a consecutive
              term of 2 ½ to 5 years for conspiracy. The homicide
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
J-S29023-15


          occurred on September 12, 2003 and [Appellant]
          was arrested on October 17, 2007. [Appellant]’s
          conviction occurred after three prior trials which
          occurred on July 14, 2008, October 7, 2008 and May
          12, 2009, respectively, all of which ended in
          mistrials. On appeal of his conviction, the Superior
          Court, in a memorandum opinion of October 25,
          2011, remanded to the trial court for a hearing
          regarding the alleged recantation of a witness trial
          testimony, but otherwise affirmed the judgment of
          sentence.   Commonwealth v. Garner, 37 A.2d
          1244 (Pa. Super. 2011).

                 A hearing on the remand was held on March 5,
          2012, and on March 9, 2012[,] an order was entered
          finding that the witness did not knowingly and
          voluntarily recant his testimony. [On March 13,
          2013, Appellant] subsequently filed the instant
          [m]otion for [r]eduction of [s]entence, which was
          designated a PCRA [p]etition. In his [a]mended
          PCRA [p]etition, [Appellant] alleged that he was
          entitled to additional credit for time served and that
          trial counsel was ineffective in failing to adequately
          consult with him concerning accepting or rejecting
          plea offers made prior to his conviction.

                  [Appellant] claims that counsel was ineffective
          in failing to consult with him because in early April or
          May of 2009 counsel met with [Appellant] and
          informed him that the Commonwealth had offered to
          agree to a sentence of 20 to 40 years in exchange
          for a plea of guilty to [t]hird-[d]egree [m]urder and
          other charges. [Appellant] allege[s] that counsel
          informed him not to take the offer. [Appellant] then
          alleges that:

                “During jury selection for the May 2009 trial,
                Attorney Seman discussed with [Appellant]
                [the]    Commonwealth[’s]     offers   involving
                agreement on a minimum sentence of 10, 12,
                and 15 years[’] incarceration. Attorney Seman
                did not advise [Appellant] that an acquittal on
                all charges would be extremely difficult in light
                of [Appellant]’s statement that [Appellant] was

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J-S29023-15


                present at the scene at the time of the
                stabbing and in light of Marvin Harpool’s
                testimony regarding [Appellant]’s participation
                in the assault of the victim. lf Attorney Seman
                advised [Appellant] of the difficulties in
                obtaining an acquittal, [Appellant] would have
                accepted any of the offers made during the
                jury selection process for the May 2009 trial.”
                (Amended PCRA Petition, pp. 13-14)

                 [On August 7, 2014, a PCRA hearing was
          held.] At the PCRA hearing[,] trial counsel testified
          that he represented [Appellant] at each trial, three of
          which resulted in a mistrial, as well as the fourth trial
          which resulted in [Appellant]’s conviction. Counsel
          testified that throughout his representation of
          [Appellant], there were negotiations and discussions
          concerning potential plea agreements “almost on a
          weekly basis while we were going through this[.]”
          Counsel testified that despite repeated efforts to
          obtain an acceptable plea offer from the
          Commonwealth, the Commonwealth never made an
          offer that was “anywhere near something that
          [Appellant] was willing to accept and that the only
          offer actually made was 20 to 40 years.” Counsel
          denied that there were offers made with minimum
          sentences of 10, 12 or 15 years and that if offers of
          10 or 12 years had been made he would have
          advised [Appellant] to take any such offers. Counsel
          acknowledged that those numbers were discussed in
          the context of requesting such an offer, stating:

                These are all numbers that Mr. Garner and I
                discussed, like could we possibly get it. Mr.
                Garner would say, “Is there any way we could
                get a 10 to 20. One time he asked me if there
                was any way he could get a 5 to 10. Just
                because a number is discussed, certainly,
                absolutely was not an offer made by the
                Commonwealth because you know, 10 to 20, I
                would have told Mr. Garner to consider, if not
                jump at it.”




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J-S29023-15


                 Counsel reiterated that the only offer actually
          made was 20 to 40 years and that the
          Commonwealth already had a co-defendant who was
          willing to testify against the other two co-
          defendants, that [Appellant] did not wish to testify
          and that these factors hampered the ability to obtain
          an acceptable plea agreement.

                 [Appellant] testified at the PCRA hearing and
          acknowledged that various possible agreements were
          discussed prior to each of his trials. He testified that
          prior to his first trial the only plea was an “open
          plea” and that the length of the sentence would be at
          the discretion of the court. [Appellant] testified that
          after each of the trials different offers were discussed
          “until the fourth trial, we had a conversation down in
          the bullpen. He told me. ‘Well, the DA offered a 10
          to 20.’”     [Appellant] testified that he informed
          counsel that such an offer “was still a lot” and that in
          response counsel stated, “I am going to try to get
          something lower” based on [Appellant]’s prior score
          of zero, [Appellant] said that he indicated “fine” and
          counsel left and ret[urned] twenty minutes later and
          informed [Appellant] that “the deal was off the
          table.”

                [Appellant] denied that there was ever an offer
          of 20 to 40 but that that sentence was discussed in
          the context of an open plea.        He testified that
          subsequent offers were made of “15 to 30, 12 to 24
          and a 10 to 20” and that “[e]ach deal was made
          before the start of the new trial.”

                [Appellant] also testified regarding the alleged
          plea offer of 12 to 24 that:

                “He said, “I’d think about it,” but at the
                same time, I’m like, there wasn’t that
                much - there was nothing against me
                except a person saying, yeah, I seen him,
                and the person just happened to be a liar, so
                therefore, it was like his word against
                mine[.]” (emphasis added).


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J-S29023-15


              [Appellant] then testified that there was an offer
              made of 10 to 20 and that counsel indicated that he
              thought he could get it to 4 to 8 with a boot camp
              recommendation. [Appellant] also testified that he
              even as to that sentence he said “Man, I’m not too
              sure,” and he (counsel) said, “Why not?”
              [Appellant] then indicated that counsel told him that
              he could “get a 5 to 10 or 6 to 12 on your first
              offense.” It was at that point that [Appellant] told
              counsel, referencing the 4 to 8, “Fine. If you can get
              it, then I’ll do the time.” [Appellant] contends that
              he would have taken the offer of 10 to 20 even if it
              included a condition to testify against his
              codefendant.       After consideration of all of the
              testimony it was determined that [Appellant] failed
              to meet his burden of establishing that counsel was
              ineffective in failing to consult with him regarding the
              plea offer or the risks of proceeding to trial.

PCRA Court Opinion, 1/12/15, at 2-5 (some citations omitted, emphasis and

italics in original). Accordingly, on August 20, 2014, the PCRA court denied

Appellant’s PCRA petition.        On August 21, 2014, Appellant filed a timely

notice of appeal.1

       On appeal, Appellant raises the following issue for our review.

              Whether     Attorney Seman was ineffective--in
              violation of Article I, Section 9 of the Pennsylvania
              Constitution and/or the Sixth and Fourteenth
              Amendments to the United States Constitution--in
              failing to adequately consult with defendant about
              accepting or rejecting the plea offer made prior to
              the October 7-9, 2008 jury trial in this matter
              proposing a sentence the minimum of which was 10,
____________________________________________


1
 Although not ordered to do so, Appellant filed a concise statement of errors
complained of on appeal in accordance with Pennsylvania Rule of Appellate
Procedure 1925(b). On January 12, 2015, the trial court filed a Rule
1925(a) opinion.



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J-S29023-15


            12 or 15 years[’] incarceration where it is reasonably
            likely defendant would have accepted that offer after
            adequate consultation?

Appellant’s Brief at 3.

      The following principles guide our review of an appeal from the denial

of PCRA relief.

            On appeal from the denial of PCRA relief, our
            standard and scope of review is limited to
            determining whether the PCRA court’s findings are
            supported by the record and without legal error.
            [Our] scope of review is limited to the findings of the
            PCRA court and the evidence of record, viewed in the
            light most favorable to the prevailing party at the
            PCRA court level.      The PCRA court’s credibility
            determinations, when supported by the record, are
            binding on this Court. However, this Court applies a
            de novo standard of review to the PCRA court’s legal
            conclusions.

Commonwealth v. Medina, 92 A.3d 1210, 1214-1215 (Pa. Super. 2014)

(en banc) (internal quotation marks and citations omitted), appeal granted,

10 A.3d 658, (Pa. 2014). Further, in order to be eligible for PCRA relief, a

petitioner must plead and prove by a preponderance of the evidence that his

conviction or sentence arose from one or more of the errors listed at

Section 9543(a)(2) of the PCRA. 42 Pa.C.S.A. § 9543(a)(2). These errors

include ineffectiveness of counsel. Id. § 9543(a)(2)(ii). These issues must

be neither previously litigated nor waived. Id. § 9543(a)(3).

      In his sole issue on appeal, Appellant challenges that trial counsel was

ineffective. When reviewing a claim of ineffective assistance, we apply the




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J-S29023-15


following test, first articulated by our Supreme Court in Commonwealth v.

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


                 When considering such a claim, courts
           presume that counsel was effective, and place upon
           the appellant the burden of proving otherwise.
           Counsel cannot be found ineffective for failure to
           assert a baseless claim.

                  To succeed on a claim that counsel was
           ineffective, Appellant must demonstrate that: (1) the
           claim is of arguable merit; (2) counsel had no
           reasonable strategic basis for his or her action or
           inaction; and (3) counsel’s ineffectiveness prejudiced
           him.

                                     …

                [T]o demonstrate prejudice, appellant must
           show there is a reasonable probability that, but for
           counsel’s error, the outcome of the proceeding would
           have been different.

Commonwealth v. Michaud, 70 A.3d 862, 867 (Pa. Super. 2013) (internal

quotation marks and citations omitted). “Failure to establish any prong of

the test will defeat an ineffectiveness claim.”        Commonwealth v.

Birdsong, 24 A.3d 319, 329 (Pa. 2011).

     Herein, Appellant argues counsel was ineffective for failing to advise

him to take plea offers he alleges the Commonwealth offered. Appellant’s

Brief at 18-21.   Specifically, Appellant asserts the PCRA court erred in

believing trial counsel that there were no offers of less than 20 to 40 years

imprisonment made by the Commonwealth. Id. at 18. After careful review,

we conclude Appellant’s claim is meritless.   See Michaud, supra.        The

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J-S29023-15


PCRA court’s Rule 1925(a) opinion thoroughly and accurately sets forth the

reasons for its denial of Appellant’s claim. A review of the August 7, 2014,

PCRA hearing transcript reveals the PCRA court’s credibility conclusions are

supported by the record. See Medina, supra. Accordingly, we adopt the

opinion of the Honorable Randal B. Todd as our own for purposes of our

review. See PCRA Court Opinion, 1/12/15, at 5-8.

     For the foregoing reasons, we conclude Appellant’s issue is without

merit.   Therefore, discerning no error by the PCRA court, we affirm the

August 20, 2014 order denying Appellant’s PCRA petition.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/26/2015




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      IN THE COURT OF COMMON PLEAS OF ALLEGHENY                  COUNTY. PENNSYLVANIA


COMMONWEALTH OF                                )             CRIMINAL DCVlSION
PENNSYLVANIA,                                  )
                                               )             NO;     CC2007-16150
 v.                                            )
                                               )
KRISTOPHER GARNER,                             )
                                               )
               Defendant.                      )


January 12, 2015


TODD,J.


                                           OPINION

        This is an appeal by Petitioner from an order entered on August 20, 2014 denying his

PCRA Petitioner after a hearing held on August 7. 2014. Petitioner filed a Motion for Sentence

Reduction on March 13, 2013, On April 3, 2013 an order was entered designating the Motion as

a PCRA Petition and appointing counsel. On April 24, June 25 and August 5. 2013 orders were

entered granting Petitioner's Motions for Extension of Time to File an Amended PCRA Petition.

On August 29, 2013 an Amended PCRA Petition was filed and on September 30, 2013 the

Commonwealth filed an Answer to the Amended Petition. On November 19, 2013 an order was

entered for a hearing on January 8, 2014. On   February 11., 2014 an order was entered granting

Petitioner's Motion to Correct First Claim in Amended PCRA Petition. On March 14, 2014 an

order was entered granting Petitioner additional time credit applicable to his sentence. On

August 7, 2014 a hearing was held on Petitioner's claim of ineffectiveness of counsel related to

consulting on the plea offer and on August 20, 2014 an order was entered dismissing the

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                                                                                      EXHIBIT B
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 Petition.   On August 21, 2014 Petitioner filed a Notice of Appeal to the Superior Court and

 Concise Statement of Matters Complained On Appeal which set forth the following:

         ..Whether Attorney Seman was ineffective - in violation of Article I, Section 9 of
         the Pennsylvania Constitution and/or the Sixth and Fourteenth Amendments to the
         United States Constitution-in failing to adequately consult with Defendant about
         accepting or rejecting the plea offer made prior to the October 7-9 jury trial in this
         matter proposing a sentence the minimum of which was 10. t 2 or 15 years
         incarceration where it is reasonable likely Defendant would have accepted that
         offer after adequate consultation?"


 BACKGROUND;

        This matter arises out of Petitioner's conviction after a jury trial on August 27, 2009 of

Homicide in the Third Degree and Criminal Conspiracy for which he was sentenced to 1.5 to 30

years for the murder conviction and a consecutive term of     2 !Ii to 5 years for conspiracy. The

homicide occurred on September 12, 2003 and Petitioner was arrested on October 17, 2007.

Defendant' s conviction occurred after three prior trials which occurred on July 14, 2008. October

7, 2008 and May 12, 2009, respectively, all of which ended in mistrials.     On appeal of his

conviction, the Superior Court, in a memorandum opinion of October 25, 2011, remanded to the

trial court for a hearing regarding the alleged recantation of a witness' trial testimony, but

otherwise affirmed the judgment of sentence. Commonwealth v. Gamer, 31 A.2d 1244 (Pa.

Super. 2011)

        A hearing on the remand was held on March 5, 2012, and on March 9, 2012 an order was

entered finding that the witness did not knowingly and voluntarily recant his testimony.

Petitioner subsequently filed the instant Motion for Reduction of Sentence, which was

designated   a PCRA Petition. In his Amended PCRA Petition, Petitioner alleged that he was

entitled to additional credit for time served and that trial counsel was ineffective in failing to




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 adequately consult    with him concerning accepting or rejecting plea offers made prior to his
 conviction.

           Petitioner claims that counsel was ineffective in failing to consult with him because In

 early April or May of 2009 counsel met with Petitioner and informed him that the

 Commonwealth had offered to agree to a sentence of20 to 40 years in exchange for a plea of

 guilty to Third-Degree Murder and other charges. Petitioner alleged that counsel informed him

 not to take the offer. Petitioner then alleges that:

           "During jury selection for the May 2009 trial, Attorney Seman discussed with
          Defendant Corrunonwealth offers involving agreement on a minimum sentence of
          10, 12, and 15 years incarceration. Attorney Seman did not advise Defendant that
          an acquittal on all charges would be extremely difficult in light of Defendant's
          statement that Defendant was present at the scene at the time of che stabbing and
          in light of Marvin Harpools testimony regarding Defendant's participation in the
          assault of the victim. If Attorney Seman advised Defendant of the difficulties in
          obtaining an acquittal, Defendant would have accepted any of the offers made
          during the jury selection process for the May 2009 trial." (Amended PCRA
          Petition, pp. 13-14)


          At the PCRA hearing trial counsel testified that he represented Petitioner at each trial.
three of which resulted in a mistrial. as well as the fourth trial which resulted in Petitioner' s

conviction. Counsel testified    that throughout his representation of Petitioner, there were

negotiations and discussions     concerning potential plea agreements "almost on a weekly basis

while we were going through this." (T., p. 4) Counsel testified that despite repeated efforts to

obtain an acceptable plea offer from the Commonwealth, the Commonwealth           never made an

offer   that was "anywhere near something" that Petitioner was willing to accept and that the only

offer actually made was 20 to 40 years. (T., p. 4) Counsel denied that there were offers made

with minimum sentences of 10. 12 or 15 years and that if offers of 10 or 12 years had been made
                                                                                                      .


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 he would have advised Petitioner to take any such offers. (T., p.5) Counsel acknowledged                 that

 those numbers were discussed in the context of requesting such an off er. stating:

         "These are all numbers that Mr. Garner and I discussed. like could we possibly
         get it. Mr. Gardner would say, "Is there any way we could get a to to 20?" One
         time he asked me if there was any way he could a 5 to 10. Just because a number
         is discussed, certainly, absolutely was not an offer made by the Commonwealth
         because you know. 10 to 20, I would have told Mr. Gamer to consider, if not
         Jump at it." (T., p. 6)

         Counsel reiterated that the only offer actually made was 20 to 40 years and that the

Commonwealth           already had a co-defendant who was willing to testify against the other two co-
defendants, that Defendant did not wish to testify and that these factors hampered the ability to

obtain an acceptable plea agreement.           (T., pp.6- 8)

         Petitioner testified at the PCRA hearing and acknowledged that various possible

agreements     were discussed. prior to each of his trials. He testified that prior to his first trial the

only   plea was an "open. plea" and that the length of the sentence would be at the discretion of the

court, (T.,   p. 10)     Petitioner   testified that after each of the trials different offers were discussed

"until the fourth trial, we had a conversation down in the bullpen. He told me, 'Well, the DA

offered a 10 to 20.'" (T., p.10) Petitioner testified that he informed counsel that such an offer

"was still a lot" and that in response counsel stated, «1 am going to try to get something lower"

based on Defendant's prior score of zero. (T., p. 10) Defendant said that he indicated "fine" and

counsel left and returned      twenty minutes later and inf ormed Defendant that "the deal was off the

table." (T., p. 11)

        Defendant denied that there was ever an offer of 20 to 40 but that that sentence was

discussed in the context of an open plea. He testified that subsequent offers were made of ''15 to

30, 12 to 24 and a 10 to 20" and that "Each deal was made before the start of the new trial." (T.,

pp. 11-12)

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           Petitioner also testified regarding   the alleged plea offer of 12 to 24 that;

           "Ile said, "I'd think about iJ," but at the same time, rm like, there wasn't that
           much -there was nothing against me except a person saying, yeah, I seen
           him, and the person just happened to be a liar, so therefore, it was like his word
           against mind; his credibility against PUDe" (T., pp. 12-13) (Emphasis added)

 Defendant then testified that there was an offer made of 10 to 20 and that counsel indicated that

 he thought he could get it to 4 to 8 with a boot camp recommendation.           Petitioner also testified

 that he eve,,   as to that sentence he said "Man, Pm not too sure," and he (counsel) said, "Why

 not?" (T., p. 13) Petitioner then indicated that counsel told him that he could "get a 5 to 10 or 6

 to 12 on your first offense."    (T., p. 13) It was at that point that Defendant told counsel ,

 referencing the 4 to 8, "Fine. If you can get it, then I'll do the time," (T., p. 13) Defendant

 contends that he would have taken the offer of 10 to 20 even if it included a condition to testify

 against his codefendant, (T., p. 17) After consideration of all of the testimony it was determined

that Petitioner failed   to meet his   burden of establishing that counsel was ineffective in failing to

consult with him regarding the plea offer or the risks of proceeding to trial.


DISCUSSION

           In order to prevail in his claim of ineffective assistance of counsel in failing to consult

regarding accepting or rejecting a plea offer, Petitioner must prove that counsel either failed to

advise him of the offer or failed to discuss counsel's professional assessments of the risks.

hazards, or prospects of proceeding to trial.      In Commonwealth v. Copeland, 554 A.2d 54 (Pa.

Super. 1988), appeal denied, 565 A.2d 1165 (1989) the Court discussed the requirements for trial

counsel in advising a client regarding potential plea agreements versus proceeding to trial as

follows:

       "The prevailing view among courts which have considered this issue is that
       counsel has a duty to inform his client of tendered plea agreements and may be
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         found ineffective for failing to do so. ( citations omitted) This precise issue has not
         been before the appellate courts of Pennsylvania. However. in Commonwealth v.
        Napper, 254 Pa.Super, 54, 385 A.2d 521, 10 A.L.R.4th 1 (1978). the Superior
        Court determined that defense counsel had been ineffective for failing to advise
        his client regarding the merits of accepting a tendered plea bargain vis-a-vis the
        dangers of trial. In Napper, counsel had informed the defendant that a plea offer
        had been made, but counsel had failed to give his client professionai advice
        regarding the advantages of accepting the offer and the dangers inherent in
        rejecting it. Finding this to constitute ineffective assistance of counsel, the Napper
        Court reasoned:

        Defense counsel has a duty, to communicate to his client, not only the terms of a
        plea bargain off er, but also the relative merits of the offer compared to the
        defendant's chances at trial. See, e.g., A.B.A. Project on Standards for Criminal
        Justice: Standards Relating to The Prosecution Function and The Defense
        Function, (Approved Draft, 1971):

        Advising the defendant: (a) After informing himself fully    on the facts and the Jaw.
        the lawyer should advise the accused with complete candor concerning alt aspects
        of the case. including his candid estimate of the probable outcome. (b) It is
        unprofessional conduct for a lawyer intentionally to understate or overstate the
        risks, hazards or prospects of the case to exert undue influence on the accused's
        decision as to his plea. Id., The Defense Function§ 5.1 (emphasis added).

        See also I Amsterdam, Segal and Miller, Trial Manual for the Defense of
        Criminal Cases (1967):

       The decision whether to plead guilty or contest a criminal charge is probably the
       most important single decision in any criminal case. This decision must finally be
       left to the client's wishes; counsel cannot plead a man guilty, or not guilty, against
       his will. But counsel may and must give the client the benefit of his professional
       advice on this crucial decision, and often he can protect the client adequately only
       by using a considerable amount of persuasion to convince the client that one
       course or the other is in the client's best interest Such persuasion is wost often
       needed to convince the client to plead guilty in a case where a not guilty plea
       would be totally destructive. Id. at '.2-143". Commonwealth v. Copeland, 554
       A.2d 54, 60 (1988)


       Considering the proof necessary to establish trial counsel's ineffectiveness in failing to

consult with him concerning accepting or rejecting a plea offer, it is clear that Petitioner has

failed to meet his burden. Trial counsel credibly testified that despite that fact that there were

numerous discussions throughout his representation concerning the plea negotiations, which

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 included the possibility of minimum terms of 4, 10, 12 and 15 years, these discussions did not

 constitute specific offers which Petitioner was given the option by the Commonwealth         to accept

 or reject. It is clear from the testimony that counsel and Petitioner discussed, repeatedly and at

 length, the range of possible sentences, Petitioner's prior record score and the evidence with

 which he would be confronted at trial. lt Is also incredible for Petitioner to assert that by the time

 of the fourth trial he was unaware of the trial process, the evidence that would be presented

 against htm, and the risks or hazards with proceeding co     trial ln fact, Petitioner's own testimony

 indicates that when an offer of 12 to 24 was allegedly discussed. which counsel told him be

 "should think about," that Petitioner evaluated the evidence and felt that there was "not that

 much" against him, that is, only one   witness against him and that it was a question of his

 credibility versus the credibility of the witness. Therefore. contrary to the allegation that counsel

 failed to advise Petitioner that an acquittal on all charges would be difficult in light of his

admission that he was present at the scene and the witness statement that he participated in the

assault, Petitioner's own testimony establishes that he weighed and considered that testimony.

        It is clear that Petitioner was fully advised and aware of all of the risks. hazards and

potential outcomes of proceeding to trial and elected to do so. Petitioner has not alleged or

established that there was   any new evidence, witnesses, facts or circumstances that arose before

his fourth trial chat he was unaware of or that counsel failed to discuss with him. There is no

evidence that a specific plea offer was made that counsel failed to inform him of. In addition,

there is nothing in the record that indicates   that Petitioner actually instructed counsel to accept a

plea offer and counsel refused to do so, contrary to his instructions.

        Petitioner's testimony is also contradictory. While he testified that he would have

accepted an offer of 10 to 20 years, be also testified that when that alleged offer was discussed,



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he told counsel, "Man. I am not to sure" and it was only when counsel said that he would try to

get 4 to 8 years with a boot camp recommendation that he indicated that he "would do the time,"

however such an offer was never made by the Commonwealth. The evidence establishes that

Petitioner knowingly. intelligently and voluntarily elected to proceed to trial and that counsel

was not ineffective in failing to consult with him regarding accepting or rejecting any plea offer

or the risks. bazards or potential outcomes associated with proceeding to trial. Therefore,

Petitioner's PCllA Petition was appropriately dismissed.




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