J-S64040-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

MIKAEL COLES

                        Appellant                   No. 3809 EDA 2015


              Appeal from the PCRA Order December 7, 2015
              In the Court of Common Pleas of Lehigh County
            Criminal Division at No(s): CP-39-CR-0003759-2012


BEFORE: STABILE, J., SOLANO, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                FILED SEPTEMBER 28, 2016

     Mikael Coles (“Appellant”) appeals from the order entered in the Court

of Common Pleas of Lehigh County denying his first petition for collateral

relief under the Post Conviction Relief Act (“PCRA”), 42 Pa.S.A. § 9541 et

seq. after an evidentiary hearing. As we discern no abuse of discretion with

the PCRA court’s rejection of Appellant’s ineffective assistance of plea

counsel claim, we affirm.

     The trial court aptly summarizes the case history as follows:

     On May 6, 2013, the appellant, Mikael Coles, Jr., enterd guilty
     pleas to Aggravated Assault, Robbery, Burglary, and Criminal
     Conspiracy. The appellant, with three (3) others, participated in
     the home invasion of the Herod residence. The family members
     were rounded-up and placed in an upstairs bathroom. One of
     the victims, Jermaine Herod, was assaulted and then shot
     multiple times.



*Former Justice specially assigned to the Superior Court.
J-S64040-16


     The terms of the plea agreement required the Robbery,
     Burglary, and Conspiracy to be imposed concurrently. [] The
     aggravated assault charge could be imposed either concurrently
     or consecutively.[]

     On August 14, 2013, after receipt and review of a presentence
     report, the appellant received a total sentence of not less than
     thirteen years nor more than twenty-six years in a state
     correctional institution. This sentence conformed to the plea
     agreement in that all the sentences were imposed consecutively.
     Each of the sentences were within the standard range of the
     Sentencing Guidelines, albeit the high end of the standard range.

     A "Motion For Reconsideration of Sentence" was filed on August
     21, 2013. The appellant in that motion conceded that the
     sentence was within the standard range of the Guidelines, but
     suggested that this Court failed to consider certain mitigating
     factors. On September 19, 2013, the motion was denied. A
     Notice of Appeal was filed, in which the appellant challenged the
     discretionary aspects of his sentence. On April 30, 2015, the
     judgment of sentence was affirmed. []

     On June 30, 2015, the appellant filed a "Petition For Post
     Conviction Relief." Counsel was appointed to represent the
     appellant and filed an "Amended PCRA Petition" on October 29,
     2015. It was alleged that the guilty plea was not "knowing,
     voluntary, or intelligent." [] A hearing on the petition was held
     on December 7, 2015, and at the completion of the hearing, the
     petition was denied. A Notice of Appeal was filed on December
     21, 2015. Pursuant to Pa.R.P. 1925(b), the appellant filed a
     "Concise Statement of Matters Complained of On Appeal" on
     January 7, 2016, raising the . . . claim [asserting that counsel
     was ineffective because his explanation of the plea agreement
     led appellant to believe his minimum term of incarceration would
     not be more than five years].

     Background

     The appellant and his masked confederates entered the Herod
     home through a basement window. They located six members
     of the family and herded them into an upstairs bathroom. A
     seventh family member hid in a closet [].




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      Prior to forcing Jermaine Herod, one of the family members, into
      the bathroom, they asked him for the location of his safe. In
      doing so, Jermaine Herod was kicked in the head. He was then
      placed in the bathroom, and the Commonwealth alleges that the
      appellant fired six shots through the door striking Jermaine
      Herod multiple times. [] The appellant denied that he fired the
      weapon. However, a co-defendant implicated him at that act. []
      The victim also believed the appellant was responsible for both
      striking and shooting him. This Court in imposing sentence,
      drew no conclusions regarding the shooter.

      Jermaine Herod's injuries necessitated his hospitalization for
      approximately one month. Bullets were still inside his body at
      the time of sentencing, and he was still experiencing pain and
      discomfort from his wounds. [] A victim impact statement was
      read by the Chief Deputy District Attorney at sentencing. []

      The motive behind the home invasion was a failed concert
      promotion. []      Specifically, Jermaine Herod introduced the
      appellant to a concert promoter, who was supposed to provide
      musicians. [ ] The appellant allegedly provided the promoter
      with a deposit of $6,000, but the musicians failed to appear.

      The appellant, according to Jermaine Herod, was the only
      invader known to him. During the invasion, Jermaine Herod's
      tuition money, approximately $2,100, was stolen with his wallet.
      The appellant indicated that he received $200 from the wallet,
      and the wallet indicated that the appellant discarded a firearm in
      a river. [ ]

Trial Court Opinion, filed Dec. 7, 2015, at 1-4.

      Appellant presents one question for our review:

      DID THE TRIAL COURT ERR IN FINDING THAT TRIAL
      COUNSEL PROVIDED EFFECTIVE ASSISTANCE FOR THE
      FOLLOWING     REASONS:   TRIAL    COUNSEL    WAS
      INEFFECTIVE FOR EXPLAINING TO PETITIONER THAT THE
      COMMONWEALTH WOULD NOT PURSUE THE FIVE YEAR
      MANDATORY IN SUCH A MANNER AS TO MAKE THE
      PETITIONER BELIEVE HE WOULD RECEIVE A MINIMUM
      SENTENCE OF NO MORE THAN FIVE YEARS AT MOST. THIS
      RESULTED IN AN UNKNOWING AND INVOLUNTARY PLEA.



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Appellant’s brief at 4.

      An appellant's claim for ineffective assistance of plea counsel is

cognizable under the PCRA pursuant to 42 Pa.C.S. § 9543(a)(2)(ii).          Our

standard of review applicable to such over such a claim is well-settled:

      Our standard of review of a trial court order granting or denying
      relief under the PCRA calls upon us to determine whether the
      determination of the PCRA court is supported by the evidence of
      record and is free of legal error. The PCRA court's findings will
      not be disturbed unless there is no support for the findings in the
      certified record.

      Pennsylvania has recast the two-factor inquiry regarding the
      effectiveness of counsel set forth by the United States Supreme
      Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct.
      2052, 80 L.Ed.2d 674 (1984), as the following three-factor
      inquiry:

            [I]n order to obtain relief based on [an ineffective
            assistance of counsel] claim, a petitioner must
            establish: (1) the underlying claim has arguable
            merit; (2) no reasonable basis existed for counsel's
            actions or failure to act; and (3) petitioner suffered
            prejudice as a result of counsel's error such that
            there is a reasonable probability that the result of
            the proceeding would have been different absent
            such error.

      Trial counsel is presumed to be effective, and Appellant bears
      the burden of pleading and proving each of the three factors by
      a preponderance of the evidence.             The right to the
      constitutionally effective assistance of counsel extends to
      counsel's role in guiding his client with regard to the
      consequences of entering into a guilty plea.

            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,


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           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 pleaded 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.

(citations, quotation marks, and footnote omitted).

Commonwealth       v.   Lippert,   85   A.3d   1095,   1100   (2014)   (quoting

Commonwealth v. Barndt, 74 A.3d 185, 191–92 (Pa.Super.2013)).

     Appellant's claim, entirely credibility-based, asserts he entered an

unknowing and involuntary guilty plea because plea counsel misinformed

him that he would receive no more than a ten-year minimum sentence if he

pled. At the PCRA hearing, Appellant pointed to a letter from the prosecutor

to plea counsel outlining the District Attorney agreement, as part of the

negotiated plea, not to seek four applicable five-year mandatory minimum

sentences that would, if applied guarantee at least a 20 year minimum

sentence if aggregated. The letter, however, said nothing about agreeing to

minimum sentence of less than ten years.

     Moreover, the record of Appellant's guilty plea colloquy further belies

his claim, as Appellant conveyed his understanding before the court that he

faced a potential minimum sentence of twenty years and a maximum

sentence of forty years. In so doing, furthermore, Appellant never indicated

that despite this potential, he had gained assurance from either plea counsel



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or his own reading of the prosecutor's letter that he would, in fact, be

subject to no more than a ten year minimum sentence.

      Finding Appellant's assertion to be incongruent with the sentencing

instructions he received during his open guilty plea colloquy, the court

deemed incredible his testimony that he entered an unknowing plea of

guilty.   Because the court's credibility determinations are substantiated by

the evidence, we are bound by them and may not reverse on this basis.

See Lippert, supra; Commonwealth v. Abu–Jamal, 720 A.2d 79, 93 (Pa.

1998).    Confronted with no other argument besides Appellant's unavailing

request that this Court reassess the PCRA court's evidence-based credibility

determination, we reject the present appeal as meritless.

     Order is Affirmed.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/28/2016




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