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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA,               :        IN THE SUPERIOR COURT OF
                                            :             PENNSYLVANIA
                          Appellee          :
                                            :
                    v.                      :
                                            :
JAMES C. SAYLOR,                            :
                                            :
                          Appellant         :        No. 1323 EDA 2014


                  Appeal from the PCRA Order March 25, 2014
                In the Court of Common Pleas of Lehigh County
               Criminal Division No(s).: CP-39-CR-0004299-2010

BEFORE: BOWES, SHOGAN, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                            FILED APRIL 28, 2015

        Appellant, James C. Saylor, appeals the order of the Lehigh County

Court of Common Pleas that denied his first Post Conviction Relief Act 1

(“PRCA”) petition after an evidentiary hearing.              Appellant claims his

counsel’s    ineffectiveness   induced   him    to   plead   guilty   based   on   a

misunderstanding over his prior record score (“PRS”). We affirm.

        On July 20, 2011, Appellant, with the assistance of counsel from the

Office of the Public Defender (“plea counsel”), negotiated a plea agreement

to eighteen counts of, inter alia, burglary, theft, and access device fraud

listed in CR-4299-2010 and CR-2689-2011.             Under the agreement, nine

*
    Former Justice specially assigned to the Superior Court.
1
    42 Pa.C.S. §§ 9541-9546.
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counts from CR-4299-2010 were grouped for disposition (“Category I”).

N.T., 7/20/11, at 8.    Another eight counts from CR-4299-2010 and one

count from CR-2689-2011 constituted a separate group (“Category II”). Id.

The parties agreed the sentences within each Category should be concurrent

and within the standard range of the Sentencing Guidelines. Id. The trial

court retained the discretion to order the Category II sentence to run

consecutively to the Category I sentence. Id. The Commonwealth agreed

to withdraw numerous counts. Id.

      When summarizing the plea agreement, the Commonwealth expressed

its belief that Appellant’s PRS was two and the highest offense gravity score

for the charges in each Category was nine. Id. at 6. The Commonwealth

stated, “We’d be looking at [minimum sentences of] 2 to 3 years” on each

Category based on the Sentencing Guidelines.          Id.    The trial court

responded, “The standard range will be determined once we have a

presentence report [and after] the investigation has been fully made by the

investigator.”   Id. at 8. The court informed Appellant he had the right to

withdraw his plea if it did not accept the agreement. Id. at 8-9. The court

conducted a colloquy, after which Appellant entered his pleas of guilty. Id.

at 9-27.

      The parties and the trial court subsequently received copies of the

presentence investigation report, which indicated Appellant’s PRS was three.

Thus, the Sentencing Guidelines suggested a standard range minimum



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sentence of thirty to forty-two months’ imprisonment for each category, see

N.T., 9/19/11, at 4, not the twenty-four to thirty-six months’ referred to by

the Commonwealth at the guilty plea hearing.

        On September 19, 2011, the trial court imposed aggregate sentences

of forty-two months’ to fifteen years’ imprisonment on Category I and II,

respectively.    The court directed one of the Category II sentences run

consecutively to a Category I sentence. The result was a total sentence of

seven to thirty years’ imprisonment, with a RRRI2 minimum sentence of

seventy months. Id. at 45.

        Appellant,   through   plea   counsel,   filed   a   post-sentence   motion

challenging the discretionary aspects of the thirty-year total maximum

sentence imposed by the trial court.3 Appellant’s Mot. to Modify Sentence at

¶ 3.    The trial court denied the post-sentence motion on September 29,

2011.     One day later, the trial court received Appellant’s pro se post-

sentence motion seeking modification of his minimum sentence.                  See

Appellant’s Pro Se Mot. to Modify Sentence, 9/28/11.4           The pro se motion




2
  See 42 Pa.C.S. §§ 4501-4512 (relating to “Recidivism Risk Reduction
Incentive”).
3
  The counseled motion did not challenge the seven-year total minimum
sentence. Appellant’s Mot. to Modify Sentence, 9/26/11, at ¶ 2(f).
4
 Appellant’s pro se post-sentence motion included a postage stamp dated
September 28, 2011.




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was filed in the record, and the trial court took no further action on the

correspondence.5 See Pa.R.Crim.P. 576(A)(4).

      Appellant, with the assistance of new counsel from the Office of the

Public Defender, took an appeal to this Court in CR-4299-2010, but not in

CR-2689-2011.     He again challenged the discretionary aspect of the total

maximum sentence imposed.       On July 25, 2012, this Court affirmed the

judgment of sentence, holding Appellant’s sentencing claim did not raise a

substantial   question.   Commonwealth     v.   Saylor,   2721   EDA   2011

(unpublished memorandum at 3) (Pa. Super. July 25, 2012). Appellant did

not seek allowance of appeal with the Pennsylvania Supreme Court.

      On August 27, 2013, the PCRA court received Appellant’s pro se PCRA

petition, which gives rise to this appeal. The court appointed PCRA counsel,

who, in turn, sought to withdraw and filed a Turner/Finley6 letter asserting

Appellant’s pro se petition appeared timely, but failed to raise meritorious

claims. The court concluded Appellant’s petition was timely filed as to CR-

4299-2010 based on the “prisoner mailbox” rule.7    The court denied PCRA



5
   It is unclear whether plea counsel received a copy of Appellant’s pro se
filing.
6
  See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988);
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
7
  See Commonwealth v. Jones, 700 A.2d 423, 426 (Pa. 1997) (discussing
“prisoner mailbox rule”). The PCRA court, however, concluded Appellant’s
PCRA petition was not timely filed as to the conviction in CR-2689-2011,



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counsel’s request to withdraw and, on January 28, 2014, convened an

evidentiary hearing at which plea counsel and Appellant testified. Following

the hearing, the PCRA court denied relief on March 25, 2014.        Appellant

timely appealed and complied with the PCRA court’s order to file a Pa.R.A.P.

1295(b) statement.

      Appellant presents the following question for our review:     “Whether

the PCRA court erred in failing to find that guilty plea counsel’s deficient

stewardship resulted in a manifest injustice by facilitating entry of an

unknowing, involuntary or unintelligent plea?”       Appellant’s Brief at 6.

Appellant contends plea counsel led him to believe the trial court would

impose a total minimum sentence no greater than six years based on a PRS

of two. Id. at 12. No relief is due.

      The following principles govern our review:

             “Our standard in reviewing a PCRA court order is abuse
         of discretion. We determine only whether the court's order
         is supported by the record and free of legal error.” “This
         Court grants great deference to the findings of the PCRA
         court, and we will not disturb those findings merely
         because the record could support a contrary holding.” We
         will not disturb the PCRA court’s findings unless the record
         fails to support those findings.

            “A criminal defendant has the right to effective counsel
         during a plea process as well as during trial.” “A defendant
         is permitted to withdraw his guilty plea under the PCRA if
         ineffective assistance of counsel caused the defendant to
         enter an involuntary plea of guilty.”

because Appellant did not take a direct appeal under that docket number.
PCRA Ct. Order, 10/31/13, at 1-2.



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               We conduct our review of such a claim in
            accordance with the three-pronged ineffectiveness
            test under section 9543(a)(2)(ii) of the PCRA, 42
            Pa.C.S.A. § 9543(a)(2)(ii). “The voluntariness of the
            plea depends on whether counsel’s advice was within
            the range of competence demanded of attorneys in
            criminal cases.”

                In order for [the petitioner] 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. [The
            petitioner] 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.

            Moreover, trial counsel is presumed to be effective.

Commonwealth v. Rathfon, 899 A.2d 365, 368-69 (Pa. Super. 2006)

(citations omitted).

      “Allegations 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) (citation and quotation marks omitted); accord

Commonwealth v. Warren, 84 A.3d 1092, 1096 (Pa. Super. 2014)

(reiterating “if a defendant enters an open guilty plea and justifiably believes

that the maximum sentence is less than what he could receive by law, he


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may not be permitted to withdraw the plea unless he receives a sentence

greater than what he was told”).   “[T]he 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.”     Rathfon, 899

A.2d at 369-70 (citation and quotation marks omitted).

      Our review of the record reveals ample support for the PCRA court’s

findings that plea counsel apprised Appellant his PRS could be higher than

two and the standard range minimum sentence could increase.         See N.T.,

1/28/14, at 14, 17-18, 20, 26. The record also supports the PCRA court’s

determination Appellant was aware that the sentences would be in the

standard range, but further investigation was needed to determine his PRS

and the applicable standard range guideline. N.T., 7/20/11, at 6. Moreover,

there was no agreement upon a specific minimum sentence, and Appellant

conceded that no additional promises had been made to him by counsel.

See N.T., 1/28/14, at 20, 27.       Therefore, Appellant did not establish

arguable merit to his claim that plea counsel misrepresented his PRS or the

nature of the plea agreement. Cf. Rathfon, 899 A.2d at 368-69.

      Additionally, we have no basis to disturb the PCRA court’s conclusion

that Appellant did not establish prejudice. It is undisputed that plea counsel

informed Appellant his PRS was three before sentencing. N.T., 1/28/14, 32-

33. Appellant did not seek withdrawal of his plea before sentencing and only

sought modification of the sentence imposed by the trial court after



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sentencing. Id. at 33. Appellant denied being innocent of the charges. Id.

at 28. Under the totality of these circumstances, we agree with the PCRA

court that Appellant’s dissatisfaction with his sentence failed to evince the

entry of an involuntary or unknowing plea. See Warren, 84 A.3d at 1096-

97; Moser, 921 A.2d at 531. Moreover, we find no support for Appellant’s

averment that he would have proceeded to trial were it not for the alleged

misunderstanding over his PRS and the one-half year increase in the

standard range applicable to each Category. Cf. Rathfon, 899 A.2d at 369-

70. Thus, no relief is due.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/28/2015




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