J-S40043-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                          Appellee

                     v.

LAMONT CRANSTON GORHAM

                          Appellant                  No. 205 MDA 2014


               Appeal from the PCRA Order January 27, 2014
             In the Court of Common Pleas of Lancaster County
            Criminal Division at No(s): CP-36-CR-0002412-2010
                                        CP-36-CR-0003360-2010
                                        CP-36-CR-0003520-2010


BEFORE: BENDER, P.J.E., BOWES, J., and PANELLA, J.

MEMORANDUM BY PANELLA, J.                          FILED AUGUST 28, 2014

      Appellant, Lamont Cranston Gorham, appeals from the order denying

post-conviction relief pursuant to the Post Conviction Relief Act (PCRA), 42

Pa.C.S.A. §§ 9541-954, entered January 27, 2014, by the Honorable Dennis

E. Reinaker, Court of Common Pleas of Lancaster County. After careful

review, we affirm.

      As we write exclusively for the parties, who are familiar with the

factual context and legal history of this case, we set forth only so much of

the procedural history as is necessary to our analysis.

      Gorham was charged with several theft and robbery related counts.

On March 9, 2011, Gorham pled guilty to all charges pursuant to a

negotiated plea agreement. Pursuant to the plea agreement, Gorham was to
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serve    a   total   sentence   of   13   to    26   years   of   incarceration.   The

Commonwealth submitted to the trial court various documents associated

with the guilty plea, including the written guilty-plea colloquy signed by

Gorham. Finally, the trial court informed Gorham that he faced a potential

aggregate sentence of 117 years of incarceration.

        During the sentencing hearing, which took place on May 18, 2011,

Gorham articulated for the first time his belief that the plea agreement

represented merely an upper limit for his sentence, and not a final

agreement of the length of the sentence. Thereafter, the trial court

explained to Gorham why he was incorrect and noted that Gorham had, in

fact, indicated in the written guilty-plea colloquy that he understood what his

maximum exposure was. Gorham lodged no further objection and he never

moved to withdraw his plea before sentencing. The trial court then

sentenced Gorham pursuant to the plea agreement.

        Gorham then filed a timely notice of appeal to this Court, which

affirmed the judgment of sentence. See Commonwealth v. Gorham, 1335

MDA 2011 (Pa. Super., March 16, 2012) (unpublished memorandum)

(Panella, J). Gorham did not file a petition for allocator in our Supreme

Court. Thereafter, Gorham filed a pro se PCRA petition. The PCRA court

appointed counsel who subsequently filed an amended PCRA petition. An




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evidentiary hearing occurred1 and the PCRA court denied relief on January

27, 2014. This timely appeal follows.



counsel was ineffective when he failed to competently advise the defendant

concerning the plea agreement of 13 to 26 years and failed to advise the




acknowledged his understanding of the maximum sentence, we cannot find

counsel ineffective.

       Our standard of review regarding a PCRA court's denial of a petition for

post-conviction relief is well settled. We examine whether the determination

of the PCRA court is supported by the evidence of record and is free of legal

error. See Commonwealth v. Smith, 995 A.2d 1143, 1149 (Pa. 2010).

The PCRA court's findings will not be disturbed unless there is no support for

the findings in the certified record. See id. Our scope of review is limited to

the   findings   of   the   PCRA     court     and   the   evidence   of   record.   See

Commonwealth v. Burkett, 5 A.3d 1260, 1267 (Pa. Super. 2010).
____________________________________________


1
 Gorham failed to request a transcript for the PCRA evidentiary hearing that
occurred on November 15, 2013. As such, we may not consider it in making
our decision. See Commonwealth v. Preston, 904 A.2d 1, 6 (Pa. Super.

materials in the certified record when resolving an issue. ... [U]nder the
Pennsylvania Rules of Appellate Procedure, any document which is not part
of the officially certified record is deemed non-
omitted).



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for not competently advising him about the sentencing parameters of his

guilty plea and for failing to notify him that his sentencing date had been

moved up by one day. This single claim is in reality, two separate claims of

ineffective assistance of counsel. The first concerning advice about the guilty

plea and the second on the failure to notify Gorham that his trial date had

been moved up.

      We presume that counsel is effective and Gorham bears the burden of

proving otherwise. See Commonwealth v. Steele, 961 A.2d 786, 796

(2008). To prevail on this claim, Gorham must plead and prove the following

three factors:

      (1) That the underlying claim is of arguable merit; (2) that


      preju
      probability that but for the act or omission in question the
      outcome of the proceeding would have been different

Commonwealth v. Lauro, 819 A.2d 100, 105-6 (Pa. Super. 2003) (citing

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

                                      -established that claims of ineffective

assistance of counsel in relation to a plea of guilt will provide a basis for

relief only if the appellant can prove that the ineffectiveness caused an

                                                                         , 805

A.2d 1244, 1246-47 (Pa. Super. 2002) (citations omitted). In this regard,




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and a defendant may not later offer reasons for withdrawing the plea that

                                                Commonwealth v. Brown, 48

A.3d 1275, 1277-78 (Pa. Super. 2012) (citations omitted).

        In the instant case, it cannot be said that the ineffectiveness of

                                             ilty plea involuntary or unknowing.

Initially, we note that most of the evidence Gorham cites in support of his

claim is contained in the PCRA transcript, which, as noted, is not contained

                                                                         adequate

certified record, there is no support for an appellant's arguments and, thus,

                                                      Preston, 904 A.2d at 7.

        Regardless of these deficiencies in the certified record, there is

adequate evidence in the record to establish that Gorham knowingly and

voluntarily agreed to his plea bargain. First, during his guilty plea hearing

the following exchange occurred:

        The Court: I believe the maximum sentences then would be up
        to 117 years in prison and maximum fines of up to $180,000. Do
        you understand that?

        The Defendant: Yes, Sir.

N.T.,   Guilty   Plea   Hearing,   03/09/2011   at   15-16   (emphasis    added).

Moreover, Gorham also acknowledged his understanding of the maximum

sentence in the written guilty plea colloquy when answered in the affirmative



sentence that you could receive for your plea today if you were sentenced to


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the maximum and all sentences where consecutive would be 117 years and

$180,00

in the affirmative that he had sufficient time to review this information

contained within the plea and the attorney. See Guilty Plea Colloquy at 7.

Importantly, Gorham also answered the fo

did not understand any part of this form, has your attorney explained it to

                                        Id. Finally, during the sentencing



agreement with Gorham several times, as they attempted to negotiate the

individual numbers. See N.T., Sentencing, 05/18/2011, at 6-7.

      In sum, there is a plethora of evidence on the record to demonstrate

that counsel for Gorham was effective in his assistance of Gorham in relation

to his guilty plea   and that Gorham knowingly and voluntarily entered the

plea. Therefore, Gorham fails to establish that his underlying claim has

arguable merit.



ineffective when he did not inform him that his sentencing date had been

moved up by one day. However, even if it could be said that there was

arguable merit to the underlying claim, we find no prejudice has occurred.

While it is true that the sentencing hearing was moved up by one day

unbeknownst to Gorham, the Court accepted the plea deal and sentenced




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Gorham according to the agreement

as it would have been had the sentencing occurred on the following day.

                           s claim on appeal does not merit relief from this



     Order affirmed. Jurisdiction relinquished.

     Bowes, J., concurs in the result.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/28/2014




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