J-S14001-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                 :     IN THE SUPERIOR COURT OF
                                                 :          PENNSYLVANIA
                      Appellee                   :
               v.                                :
                                                 :
    WALTER PAUL RAVEN                            :
                                                 :
                      Appellant                  :            No. 684 MDA 2016

                  Appeal from the PCRA Order August 4, 2015
                In the Court of Common Pleas of Luzerne County
              Criminal Division at No(s): CP-40-CR-0003629-2012


BEFORE:      GANTMAN, P.J., SHOGAN, J., and STRASSBURGER, J.*

MEMORANDUM BY GANTMAN, P.J.:                                   FILED APRIL 13, 2017

        Appellant, Walter Paul Raven, appeals nunc pro tunc from the order

entered in the Luzerne County Court of Common Pleas, which denied his

petition for collateral relief, per the Post Conviction Relief Act (“PCRA”). 1 We

affirm.

        The relevant facts and procedural history of this case are as follows.

Appellant sold morphine to an undercover confidential informant during a

controlled    buy   on    February     8,      2011.     On    August   16,   2012,   the

Commonwealth charged Appellant at No. 3629-2012 with various drug

offenses. On September 2, 2012, Appellant was involved in a hit-and-run

motor vehicle accident, during which his vehicle struck a motorcycle. Two
____________________________________________


1
    42 Pa.C.S.A. §§ 9541-9546.


_____________________________

*Retired Senior Judge assigned to the Superior Court.
J-S14001-17


individuals on the motorcycle died as a result of the impact. On September

18, 2012, the Commonwealth charged Appellant at No. 3415-2012 with

various motor vehicle offenses and tampering with physical evidence.

Appellant entered a guilty plea in both No. 3629-2012 and No. 3415-2012

on May 3, 2013, to one count each of: delivery of a controlled substance;

accidents involving death or personal injury; accidents involving death or

personal injury while not properly licensed; habitual offenders; tampering

with or fabricating physical evidence; driving while operating privilege is

suspended or revoked; and careless driving.

      At the plea hearing, the court conducted a full and extensive oral

colloquy.   (See N.T. Plea Hearing, 5/3/13, at 5-14.)   During the colloquy,

Appellant acknowledged the court: was not bound by any agreement

Appellant had with the Commonwealth regarding            sentencing; could

sentence Appellant to the statutory maximum on each charge; and could

impose consecutive sentences. (See id. at 8-9.) Appellant also stated that,

with the assistance of plea counsel, he completed and signed a written plea

colloquy, the terms of which he understood. (See id. at 12-13.) After the

oral colloquy, the court determined Appellant entered the plea knowingly,

voluntarily, and intelligently. (See id. at 14.)

      The court conducted a sentencing hearing on June 10, 2013. At the

conclusion of the hearing, the court sentenced Appellant to twenty-one (21)

to eighty-four (84) months’ imprisonment, plus costs and restitution, for

delivery of a controlled substance at No. 3629-2012. At No. 3415-2012, the
                                     -2-
J-S14001-17


court imposed the following terms: twenty-one (21) to eighty-four (84)

months’ imprisonment, plus costs and restitution, for accidents involving

death or personal injury, to run consecutive to the sentence at No. 3629-

2012; twenty-one (21) to eighty-four (84) months’ imprisonment for

accidents involving death or personal injury while not properly licensed, to

run consecutive to the sentence for accidents involving death or personal

injury; six (6) to twenty-four (24) months’ imprisonment for habitual

offenders, to run consecutive to the sentence for accidents involving death

or personal injury while not properly licensed; six (6) to twenty-four (24)

months’ imprisonment for tampering with or fabricating physical evidence, to

run consecutive to the sentence for habitual offenders; ninety (90) days’

imprisonment for driving while operating privilege is suspended or revoked,

to run consecutive to the sentence for tampering with or fabricating physical

evidence; and a fine for careless driving.     In total, the court sentenced

Appellant to an aggregate term of 78 to 300 months’ imprisonment.         This

Court affirmed the judgment of sentence on August 12, 2014, and our

Supreme Court denied allowance of appeal on December 23, 2014.            See

Commonwealth v. Raven, 97 A.3d 1244 (Pa.Super. 2014), appeal denied,

629 Pa. 636, 105 A.3d 736 (2014).

      Appellant timely filed his first PCRA petition on April 23, 2015, raising

claims under the rubric of ineffective assistance of counsel. During a hearing

on July 8, 2015, the PCRA court heard testimony from Appellant, his friend

Deborah Citsay, and Appellant’s plea counsel. Appellant testified that when
                                   -3-
J-S14001-17


he discussed the plea with plea counsel, counsel advised him the maximum

sentence he faced was thirty-six months’ imprisonment.        (See N.T. PCRA

Hearing, 7/8/15, at 8.)   Appellant stated plea counsel told Appellant the

counts of accidents involving death or personal injury and accidents

involving death or personal injury while not properly licensed would merge

for the purposes of sentencing. (See id. at 9.) Appellant also testified that

plea counsel explained the remaining charges were misdemeanors, the

sentences for which would run concurrent to the sentence Appellant received

for the accidents involving death or personal injury counts. (Id.) Ms. Citsay

testified plea counsel had also told her the maximum sentence Appellant

could receive if he entered the plea was thirty-six months’ imprisonment.

(See id. at 29.) Ms. Citsay also said she was not present at Appellant’s plea

hearing and did not know the maximum penalties for each of the offenses to

which Appellant pled guilty. (See id. at 34.) Plea counsel testified, in part,

as follows:

         [COMMONWEALTH]:         And you would agree with me
         that under the plea agreement, [it states], unless
         otherwise indicated there’s no agreement regarding
         sentence?

         [PLEA COUNSEL]:            Correct.

         [COMMONWEALTH]:             Was there ever an agreement to
         run any of those charges concurrent to each other with the
         District Attorney’s Office?

         [PLEA COUNSEL]:           There was no formal agreement
         to that fact. We would have enumerated that.

         [COMMONWEALTH]:            Okay.      Was   there   ever   an
                                    -4-
J-S14001-17


       agreement…with regard to whether or not they would run
       concurrently or consecutively?

       [PLEA COUNSEL]:        My understanding was the
       Commonwealth would not oppose a concurrent sentence.

       [COMMONWEALTH]:           And did you explain that to
       [Appellant] ultimately the sentence would be up to the
       [c]ourt?

       [PLEA COUNSEL]:              Correct.

       [COMMONWEALTH]:             And that the [j]udge       could
       reject any sort of negotiated plea in this case?

       [PLEA COUNSEL]:              What I told [Appellant]…is the
       discretion of the [c]ourt, if the [c]ourt does not accept the
       plea agreement, [Appellant] has the option to withdraw his
       plea.

       [COMMONWEALTH]:           And you would agree that in this
       case, there was no [other] written plea agreement…?

       [PLEA COUNSEL]:              Correct.

                                *     *    *

       [COMMONWEALTH]:           And at the time [Appellant] was
       sentenced, you made the argument that [the counts of
       accidents involving death or personal injury and accidents
       involving death or personal injury while not properly
       licensed] regarding [No. 3415-2012] should merge for
       purposes of sentencing?

       [PLEA COUNSEL]:              That is correct.

       [COMMONWEALTH]:            And      that  was      your
       understanding of what should have happened based on the
       doctrine of merger at the time, correct?

       [PLEA COUNSEL]:              Correct. Yes.

       [COMMONWEALTH]:           And you shared that opinion or
       sentiment with [Appellant]?

                                    -5-
J-S14001-17


       [PLEA COUNSEL]:             Yes.

                               *     *      *

       [COMMONWEALTH]:           And did you ever tell [Appellant]
       that he was going to get a sentence of 18 to 36 months on
       both cases?

       [PLEA COUNSEL]:          No. I would have told him what
       the sentencing ranges were on each count.

       [COMMONWEALTH]:           Did you, in fact, tell [Appellant]
       that the sentencing ranges for [the counts of accidents
       involving death or personal injury and accidents involving
       death or personal injury while not properly licensed] of the
       accident case, [No.] 3415-2012, were 15 to 21 months?

       [PLEA COUNSEL]:             I believe I did.

       [COMMONWEALTH]:           Okay. And did you ever make a
       statement to [Appellant] that all the misdemeanors, they
       should be run concurrent…?

       [PLEA COUNSEL]:            I wouldn’t have said that. What
       I more than likely would have asked or—I would have
       asked the [c]ourt to run the individual counts…concurrent.

       [COMMONWEALTH]:           Did you ever make a guarantee
       to [Appellant] that     the misdemeanors would run
       concurrent?

       [PLEA COUNSEL]:             No.

       [COMMONWEALTH]:             Or     that   they   have   to   run
       concurrent?

       [PLEA COUNSEL]:             Absolutely not.

       [COMMONWEALTH]:           Did you ever make a guarantee
       to [Appellant] that 36 months would be most that he
       would get in these cases?

       [PLEA COUNSEL]:             Absolutely not.

       [COMMONWEALTH]:             Did you ever make a guarantee
                                   -6-
J-S14001-17


         to [Ms.] Citsay that 36 months would be the most that
         [Appellant] would get in these cases.

         [PLEA COUNSEL]:            I did not.    I would not have
         done that.

(Id. at 38-39, 42-44.)

      The PCRA court denied Appellant’s petition on August 4, 2015.        On

December 31, 2015, this Court dismissed Appellant’s appeal from the PCRA

court’s order, for failure to comply with Pa.R.A.P. 3517.    On February 10,

2016, Appellant filed the current PCRA petition, in which he requested the

PCRA court to reinstate his appeal rights nunc pro tunc from the denial of his

first PCRA petition. Following a hearing, on March 24, 2016, the PCRA court

reinstated Appellant’s appeal rights nunc pro tunc. Appellant filed a timely

notice of appeal on April 21, 2016.       The PCRA court did not order a

statement of errors complained of on appeal, pursuant to Pa.R.A.P. 1925(b),

and Appellant filed none.

      Appellant raises the following issue for our review:

         WHETHER THE PCRA COURT ERRED IN DENYING
         [APPELLANT]’S INEFFECTIVE ASSISTANCE OF COUNSEL
         CLAIM WHERE PLEA COUNSEL PROVIDED IMPROPER
         ADVICE REGARDING THE MERGER OF CHARGES AND
         [APPELLANT] WAS NOT INFORMED OF THE TOTAL
         AGGREGATED SENTENCE WHICH COULD BE IMPOSED BY
         THE COURT?

(Appellant’s Brief at 4).

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

examining whether the record evidence supports the court’s determination

and whether the court’s decision is free of legal error. Commonwealth v.
                                    -7-
J-S14001-17


Ford, 947 A.2d 1251 (Pa.Super. 2008), appeal denied, 598 Pa. 779, 959

A.2d 319 (2008). This Court grants great deference to the findings of the

PCRA court if       the   record contains any support for             those   findings.

Commonwealth v. Boyd, 923 A.2d 513 (Pa.Super. 2007), appeal denied,

593 Pa. 754, 932 A.2d 74 (2007). If the record supports a post-conviction

court’s credibility determination, it is binding on the appellate court.

Commonwealth v. Dennis, 609 Pa. 442, 17 A.3d 297 (2011).

      Appellant argues plea counsel advised him the maximum sentence he

could receive under the terms of the plea was thirty-six months. Appellant

maintains plea counsel explained the charges of accidents involving death or

personal injury and accidents involving death or personal injury while driving

without a license would merge for purposes of sentencing. Appellant avers

plea counsel failed to inform Appellant that if he entered the guilty plea, the

court could impose consecutive sentences. Appellant submits plea counsel

also failed to apprise Appellant of the possible aggregate sentence Appellant

faced if he entered the guilty plea.        Appellant concludes he is entitled to

relief because plea counsel was ineffective, which caused Appellant to enter

an unknowing and involuntary guilty plea. We disagree.

      The     law   presumes     counsel    has   rendered     effective   assistance.

Commonwealth v. Gonzalez, 858 A.2d 1219, 1222 (Pa.Super. 2004),

appeal denied, 582 Pa. 695, 871 A.2d 189 (2005). To prevail on a claim of

ineffective   assistance    of   counsel,    a    petitioner   must    show,    by   a

preponderance of the evidence, ineffective assistance of counsel, which, in
                                  -8-
J-S14001-17


the circumstances of the particular case, so undermined the truth-

determining process that no reliable adjudication of guilt or innocence could

have taken place.     Commonwealth v. Turetsky, 925 A.2d 876, 880

(Pa.Super. 2007), appeal denied, 596 Pa. 707, 940 A.2d 365 (2007). The

petitioner must demonstrate: (1) the underlying claim has arguable merit;

(2) counsel lacked a reasonable strategic basis for his action or inaction; and

(3) but for counsel’s errors and omissions, there is a reasonable probability

the outcome of the proceedings would have been different.            Id.   “The

petitioner bears the burden of proving all three prongs of the test.”       Id.

“Where it is clear that a petitioner has failed to meet any of the three,

distinct prongs of the…test, the claim may be disposed of on that basis

alone, without a determination of whether the other two prongs have been

met.”    Commonwealth v. Steele, 599 Pa. 341, 360, 961 A.2d 786, 797

(2008).

        “To succeed on an allegation of…counsel’s ineffectiveness…a post-

conviction petitioner must, at a minimum, present argumentation relative to

each layer of ineffective assistance, on all three prongs of the ineffectiveness

standard….”    Commonwealth v. D’Amato, 579 Pa. 490, 500, 856 A.2d

806, 812 (2004) (internal citations omitted).        “[A] petitioner does not

preserve a…claim of ineffectiveness merely by focusing his attention on

whether…counsel was ineffective. Rather, the petitioner must also present

argument as to how the second and third prongs of the [ineffectiveness] test

are met with regard to the…claim.” Commonwealth v. Santiago, 579 Pa.
                                  -9-
J-S14001-17


46, 69, 855 A.2d 682, 696 (2004). “[A]n undeveloped argument, which fails

to meaningfully discuss and apply the standard governing the review of

ineffectiveness claims, simply does not satisfy [the petitioner’s] burden of

establishing that he is entitled to any relief.” Commonwealth v. Bracey,

568 Pa. 264, 273 n.4, 795 A.2d 935, 940 n.4 (2001).                    See also

Commonwealth v. Chmiel, 612 Pa. 333, 362, 30 A.3d 1111, 1128 (2011)

(explaining boilerplate allegations and bald assertions of no reasonable basis

and/or ensuing prejudice cannot satisfy petitioner’s burden of proving

ineffectiveness).

      “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.” Commonwealth v.

Moser, 921 A.2d 526, 531 (Pa.Super. 2007) (quoting Commonwealth v.

Hickman, 799 A.2d 136, 141 (Pa.Super. 2002)).            “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.” Moser, supra. Pennsylvania law

does not require the defendant to “be pleased with the outcome of his

decision to enter a plea of guilty[; a]ll that is required is that his decision to

plead guilty be knowingly, voluntarily and intelligently made.” Id. at 528-

29.   A guilty plea will be deemed valid if the totality of the circumstances

surrounding the plea shows that the defendant had a full understanding of

the nature and consequences of his plea such that he knowingly and
                              - 10 -
J-S14001-17


intelligently entered the plea of his own accord.            Commonwealth v.

Fluharty, 632 A.2d 312, 314-15 (Pa.Super. 1993).               Pennsylvania law

presumes the defendant is aware of what he is doing when he enters a guilty

plea,    and   the   defendant   bears   the   burden   to    prove   otherwise.

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

disappointment in the sentence does not constitute the necessary “manifest

injustice” to render the defendant’s guilty plea involuntary. Id. at 522. See

also Commonwealth v. Kelly, 5 A.3d 370, 377 (Pa.Super. 2010), appeal

denied, 613 Pa. 643, 32 A.3d 1276 (2011) (reiterating principle that courts

discourage entry of plea as sentence-testing device).

        The Pennsylvania Rules of Criminal Procedure mandate that pleas be

taken in open court, and require the court to conduct an on-the-record

colloquy to ascertain whether a defendant is aware of his rights and the

consequences of his plea. Commonwealth v. Hodges, 789 A.2d 764, 765

(Pa.Super. 2002) (citing Pa.R.C.P. 590).         Specifically, the court must

affirmatively demonstrate the defendant understands: (1) the nature of the

charges to which he is pleading guilty; (2) the factual basis for the plea; (3)

his right to trial by jury; (4) the presumption of innocence; (5) the

permissible ranges of sentences and fines possible; and (6) that the judge is

not bound by the terms of the agreement unless he accepts the agreement.

Commonwealth v. Watson, 835 A.2d 786, 796-97 (Pa.Super. 2003).

        Instantly, Appellant’s brief contains no discussion of two prongs of the

ineffectiveness test: that plea counsel lacked a reasonable basis for his
                                   - 11 -
J-S14001-17


conduct and that Appellant suffered prejudice as a result of counsel’s alleged

ineffectiveness.    Appellant fails to assert that plea counsel lacked a

reasonable basis for his actions and fails to explain how counsel’s alleged

deficiencies caused Appellant to enter an unknowing and involuntary plea.

Appellant also does not establish that but for counsel alleged ineffectiveness,

Appellant would not have entered the guilty plea. Absent more, the cursory

analysis set forth in Appellant’s brief does not adequately present his

ineffectiveness claims. See Santiago, supra; D’Amato, supra. Therefore,

Appellant fails to satisfy the ineffectiveness test.

      Moreover, even if Appellant had presented an adequate argument, no

relief would be due. Concerning Appellant’s ineffectiveness claims, the PCRA

court reasoned as follows:

         [Appellant] testified [at the PCRA hearing] that [plea]
         counsel…advised him of a plea offer made by the District
         Attorney.      Although his testimony was somewhat
         inconsistent, [Appellant] stated that [plea] counsel told
         him that his sentence would be no more than 36 months.
         He also testified that [plea] counsel had indicated that the
         accidents involving death or personal injury and accidents
         involving death or personal injury while not properly
         licensed charges would merge for sentencing.

         [Appellant] accepted the…plea offer and was sentenced….
         Although he received a sentence which exceeded the 36
         months he was allegedly promised, [Appellant] voiced no
         objection at the time of sentencing.

         On cross examination [during the PCRA hearing],
         [Appellant] admitted that he completed the Guilty Plea
         Questionnaire…. He did refer to the plea agreement in his
         answer to question 49 [of the Questionnaire] regarding
         any promises, deals or agreements which may have been
         made. The plea agreement…contained no agreement as to
                                  - 12 -
J-S14001-17


       sentencing. At the time of the plea, the assistant district
       attorney read into the record the maximum penalties for
       each crime to which [Appellant] was pleading guilty. In
       addition, the [c]ourt [colloquied Appellant] regarding the
       possibility of imposing the statutory maximum sentences
       associated with each crime as well as the possibility that
       the sentences would run consecutively.

       [Appellant] called a friend, Deborah Citsay, as a witness at
       the PCRA hearing. Ms. Citsay also testified that [plea]
       counsel told her that a sentence of 36 months was the
       maximum [Appellant] would receive.               On cross-
       examination, she admitted that she was not present when
       [Appellant] pled guilty and she had no idea as to the
       maximum possible sentences for the various crimes to
       which [Appellant] pled guilty.

       [Plea c]ounsel for Appellant testified [at the PCRA hearing]
       on behalf of the Commonwealth. He stated that a plea
       was negotiated with the Commonwealth which [Appellant]
       ultimately decided to accept. [Plea c]ounsel indicated that
       although the Commonwealth would not oppose concurrent
       sentences, there was no such agreement. [Plea c]ounsel
       assisted [Appellant] with completion of the Guilty Plea
       Questionnaire and answered any questions he had.

       … [Plea counsel] never promised [Appellant] that his
       maximum sentence would be no more than 36 months.
       [Plea c]ounsel never advised Ms. Citsay that [Appellant]’s
       maximum sentence would be no more than 36 months.
       With regard to the merger issue, [plea] counsel told
       [Appellant] he would argue that merger should apply to
       the accidents involving death or personal injury and the
       accidents involving death or personal injury while not
       properly licensed charges, but he did not guarantee that it
       would. [Plea c]ounsel also advised [Appellant] that the
       decision as to whether sentences run consecutive or
       concurrent to each other is decided by the [c]ourt.

       … Th[e plea c]ourt complied with all the requirements of
       Rule 590 at the time of [Appellant]’s plea….

       … Based upon the testimony and evidence presented at
       the PCRA hearing, [Appellant] has failed to satisfy [the
       ineffectiveness test.]
                               - 13 -
J-S14001-17



         [Appellant]’s plea of guilty was knowingly, voluntarily, and
         intelligently entered.    [Plea c]ounsel provided credible
         testimony at the PCRA hearing and we find that no
         promises or guarantees were made to [Appellant]
         regarding his sentence. As a result, we find [Appellant]’s
         ineffectiveness claim to be without merit.

(PCRA Court Opinion, filed August 4, 2015, at 3-6) (internal citations

omitted).   The record supports the PCRA court’s analysis, and we see no

reason to disturb it.      See Ford, supra; Boyd, supra.           Therefore,

Appellant’s ineffective assistance of counsel claims fail.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/13/2017




                                     - 14 -
