J-S53033-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

ROBERT C. MARTIN,

                            Appellant                 No. 351 WDA 2014


                 Appeal from the PCRA Order February 4, 2014
                in the Court of Common Pleas of Potter County
               Criminal Division at No.: CP-53-CR-0000237-2010



COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

ROBERT C. MARTIN,

                            Appellant                 No. 352 WDA 2014


                 Appeal from the PCRA Order February 4, 2014
                in the Court of Common Pleas of Potter County
               Criminal Division at No.: CP-53-CR-0000238-2010


BEFORE: DONOHUE, J., OLSON, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED SEPTEMBER 17, 2014

        Appellant, Robert C. Martin, appeals from the orders of February 4,

2014 in these consolidated cases, which denied his amended counseled
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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petitions filed pursuant to the Post Conviction Relief Act (PCRA), 42

Pa.C.S.A. §§ 9541-9546.1 We affirm.

        On July 13, 2011, Appellant entered a negotiated open guilty plea to

endangering the welfare of children, corruption of minors, and harassment

at Potter County Docket Number 237 of 2010.2        Appellant also entered a

negotiated open guilty plea to possession of a firearm by one prohibited;

conspiracy; possession of a firearm with altered manufacturing number;

manufacturing, delivery or possession with intent to manufacture or deliver

a controlled substance; use of, or possession with intent to use drug

paraphernalia; making repairs or selling of offensive weapons; and use or

possession of electric or electronic incapacitation device at Potter County

Docket Number 238 of 2010.3 In exchange, the Commonwealth agreed to

recommend that the sentences run concurrently.       The charges arose from

activities occurring between June 15, 2006 and September 20, 2010.

        On August 30, 2011, the sentencing court sentenced Appellant to an

aggregate term of incarceration of not less than 114 nor more than 228

months at Docket Number 238 of 2010, and a concurrent term of

____________________________________________


1
 This Court, on Appellant’s application, ordered the matters consolidated on
May 12, 2014.
2
    18 Pa.C.S.A. §§ 4304(a), 6301(a)(1), and 2709(a)(1), respectively.
3
 18 Pa.C.S.A. §§ 6105(a)(1), 903(a), 6110.2(a); 35 P.S. §§ 780-113(a)(30)
and (32); 18 Pa.C.S.A. §§ 908(a), and 908.1(c), respectively.



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incarceration of not less than twelve nor more than twenty-four months at

Docket Number 237 of 2010.            On September 9, 2011, Appellant filed

motions to modify sentences, claiming that he should not be subject to the

sentencing minimum because of mitigating factors.           On September 26,

2011, the court denied Appellant’s motions and instead issued an amended

sentencing order at Docket Number 238 of 2010 to reflect its intention and

correct a calculation error.     The court reduced and amended Appellant’s

aggregate sentence at Docket Number 238 to not less than eighty nor more

than 168 months.         Appellant’s sentence at Docket Number 237 of 2010

remained concurrent to the sentence at Docket Number 238 of 2010.

Attorney Jay D. Carr represented Appellant at trial and sentencing.

        Appellant timely filed direct appeals on October 3, 2011.       The court

granted Appellant in forma pauperis status and appointed a public defender,

Attorney Brent Petrosky, to represent him on his appeal.         On March 20,

2013,     this   Court    affirmed   the   judgments   of   sentence.       (See

Commonwealth v. Martin, 69 A.3d 1298 (Pa. Super. 2013) (unpublished

memorandum)). Appellant did not seek leave to appeal to the Pennsylvania

Supreme Court.

        On October 21, 2013, Appellant filed timely pro se PCRA petitions.

The PCRA court appointed Attorney Jarett R. Smith to represent Appellant.

On November 27, 2013, Appellant filed amended PCRA petitions. The court




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held a hearing and ultimately denied relief on February 4, 2014. Appellant

timely appealed on February 20, 2014.4

       Appellant raises three issues for our review:

       1.    [Whether] [t]he Appellant’s due process rights were
       violated when the court modified its original sentencing order of
       August 30, 2011 via an amended order of September 26, 2011
       without holding a hearing where the Appellant was neither
       present nor permitted to appear and offer allocution?

       2.    [Whether] [t]he Appellant’s discretionary sentence was
       inconsistent with the plea agreement tendered in that the court
       did not run all sentenced terms concurrent to each and every
       count such the Appellant did not receive an aggregate five (5) to
       ten (10) year sentence?

       3.     [Whether] [t]he Appellant’s trial counsel was ineffective in
       failing to inform the Appellant of the plea as to make a knowing
       and intelligent decision in tendering a plea; trial counsel failed to
       file timely pretrial motions; and failed to investigate and contact
       witnesses that would have supported a suppression motion or
       testified on the Appellant’s behalf in support of his defense?

(Appellant’s Brief, at 15).

       Our standard of review is well-settled:

              When reviewing the propriety of an order granting or
       denying PCRA relief, this Court is limited to determining whether
       the evidence of record supports the determination of the PCRA
       court and whether the ruling is free of legal error. Great
       deference is granted to the findings of the PCRA court, and these
       findings will not be disturbed unless they have no support in the
       certified record.


____________________________________________


4
   Pursuant to the PCRA court’s order, Appellant filed a Rule 1925(b)
statement on March 7, 2014. The court entered its Rule 1925(a) opinion on
March 14, 2014. See Pa.R.A.P. 1925.



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Commonwealth v. Rachak, 62 A.3d 389, 391 (Pa. Super. 2012), appeal

denied, 67 A.3d 796 (Pa. 2013) (citations omitted).

     A PCRA petitioner is eligible for relief if the claim is cognizable under

the PCRA.      See 42 Pa.C.S.A. § 9543.           Cognizable claims include

constitutional violations and ineffectiveness of counsel that undermine the

truth-determining process. See 42 Pa.C.S.A. § 9543(a)(2)(i) and (ii).

     In his first issue, Appellant claims that a violation of his due process

rights occurred when the trial court modified his original sentence without a

hearing on September 26, 2011.       (See Appellant’s Brief at 16-17).      We

disagree.

     It is well-settled that “[t]rial courts have the power to alter or modify a

criminal sentence within thirty days after entry, if no appeal is taken.”

Commonwealth v. Quinlan, 639 A.2d 1235, 1238 (Pa. Super. 1994)

(citation omitted) (noting that omissions from sentencing order would not

constitute basis to alter sua sponte). Furthermore, “[t]he power to modify a

sentence in order to amend records, to correct mistakes of court officers or

counsel’s inadvertencies, or to supply defects or omissions in the record is

inherent in our court system.” Id. (citation omitted).

     Here, the record reflects the trial court’s intention that Appellant serve

an aggregate sentence at Docket Number 238 of 2010 of not less than

eighty nor more than 168 months.           (See Sentencing Order in Docket

Number 238 of 2010, 8/30/11, at 1). Furthermore, the trial court amended

the August 30, 2011 sentencing order to correct count thirty’s sentence to

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reflect the court’s intention that the sentence be served concurrently with

the remaining counts, such that Appellant not serve an additional eighteen

to thirty-six months. (See N.T. PCRA Hearing, 1/27/14, at 8-9).

      Accordingly, because the trial court acted within its authority, the

PCRA court properly denied this claim. Appellant’s first issue lacks merit.

      In his second issue, Appellant claims that the discretionary aspect of

his sentence was inconsistent with his plea agreement.       (See Appellant’s

Brief at 16). We disagree.

      It is well-settled that appeals from the discretionary aspects of

sentences are not a matter of right, but rather are granted where there

exists a substantial question that the sentence imposed was inappropriate

and contrary to the Sentencing Code. See Commonwealth v. Gonzalez-

DeJesus, 994 A.2d 595, 599 (Pa. Super. 2010) (citations and footnotes

omitted) (noting that aggregate sentence of twenty to forty years’

imprisonment for appellant involved in two separate robberies would not

raise a substantial question); see also Commonwealth v. Dodge, 77 A.3d

1263 (Pa. Super. 2013), appeal denied, 91 A.3d 161 (Pa. 2014).

      Here, the record reflects that Appellant’s negotiated plea agreements

did not specify an aggregate sentence of any length. The plea agreement in

Docket Number 237 of 2010 stated that the Commonwealth would

recommend the “sentence run concurrent with Docket No. 238/2010.”.

(Plea Agreement in Docket Number 237 of 2010, 6/16/11, at 2). The plea

agreement in Docket Number 238 of 2010 stated that there was a five year

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mandatory minimum on count thirty-one, but gave no recommendations on

the remaining counts and specified that the court had discretion on running

the sentences concurrently. (See Plea Agreement in Docket Number 238 of

2010, 6/16/11, at 2).

      Furthermore, the PCRA court found Appellant’s trial counsel credible

when he testified that he never told Appellant that he would receive a

sentence of five to ten years, but did tell him that in his counsel’s opinion, a

sentence of more than five to ten years would be excessive.         (See PCRA

Court Opinion, 2/4/14, at 6; N.T. PCRA Hearing, 1/27/14, at 21, 36-38).

      Accordingly, because the trial court acted within its authority, we

conclude that the PCRA court properly found that Appellant failed to prove

that his sentence was inappropriate.      See Gonzalez-DeJesus, supra at

599. Appellant’s second issue lacks merit.

      In his third issue, Appellant claims that he received ineffective

assistance of counsel based on his failure to (1) inform Appellant of the plea

to make a knowing and intelligent decision in tendering the plea; (2) file

timely pretrial motions; and (3) investigate and contact witnesses that would

have supported a suppression motion or testified on Appellant’s behalf.

(See Appellant’s Brief at 16-17). We disagree.

      It is well-settled that “[a] criminal defendant has the right to effective

counsel during a plea process as well as during trial.” Commonwealth v.

Rathfon, 899 A.2d 365, 369 (Pa. Super. 2006) (citation omitted). Further,

“[a]llegations of ineffectiveness in connection with the entry of a guilty plea

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will serve as a basis for relief only if the ineffectiveness caused the

defendant to enter an involuntary or unknowing plea.” Commonwealth v.

Hickman, 799 A.2d 136, 141 (Pa. Super. 2002) (citation omitted).          Also,

“where the defendant enters his plea on the advice of counsel, the

voluntariness of the plea depends upon whether counsel’s advice was within

the range of competence demanded of attorneys in criminal cases.”          Id.

(internal quotation marks and citations omitted).

      Counsel is presumed effective, and an appellant bears the burden to

prove otherwise.   See Commonwealth v. Bennett, 57 A.3d 1185, 1195

(Pa. 2012). A PCRA petitioner must demonstrate that counsel’s performance

was deficient and that such deficiency prejudiced him. See Strickland v.

Washington, 466 U.S. 668, 687 (1984). Pennsylvania has further refined

the Strickland test into a three-prong inquiry.           An appellant must

demonstrate that: (1) his underlying claim is of arguable merit; (2) counsel

had no reasonable strategic basis for his action or inaction; and (3) the

appellant suffered actual prejudice as a result.    See Commonwealth v.

Pierce, 527 A.2d 973, 975 (Pa. 1987). A failure to satisfy any prong of the

ineffective assistance of counsel test will require rejection of the claim. See

Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014).                 Moreover,

deference is given to the PCRA court’s credibility determination if supported

by the record. See id. at 312-13.

      Where, as here, Appellant pleaded guilty, to satisfy the prejudice

requirement, Appellant must show that “there is a reasonable probability

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that, but for counsel’s errors, he would not have pleaded guilty and would

have insisted on going to trial.” Rathfon, supra at 370 (citation omitted).

Here, Appellant has utterly failed to do so.

       It is well-settled that, where the record shows that the trial court

conducted a thorough guilty plea colloquy and the defendant understood his

rights and the nature of the charges against him, the plea is voluntary.

(See    N.T.   Guilty   Plea   Hearing,   6/13/11,   at   1-17).   See    also

Commonwealth v. McCauley, 797 A.2d 920, 922 (Pa. Super. 2001)

(rejecting challenge to plea agreement where trial court conducted plea

colloquy and defendant understood charges). We look to the totality of the

circumstances to determine whether the defendant understood the nature

and consequences of his plea. See McCauley, supra at 922.

       A criminal defendant is bound by the statements he made during his

plea colloquy.   See Commonwealth v. Muhammad, 794 A.2d 378, 384

(Pa. Super. 2002).        Thus, a    defendant cannot assert grounds        for

withdrawing the plea that contradicts statements made at that time.       See

Commonwealth v. Stork, 737 A.2d 789, 790-91 (Pa. Super. 1999), appeal

denied, 764 A.2d 1068 (Pa. 2000). Further, “[t]he law does not require that

appellant be pleased with the outcome of his decision to enter a plea of

guilty: ‘All that is required is that [appellant’s] decision to plead guilty be

knowingly, voluntarily and intelligently made.’” Commonwealth v. Yager,

685 A.2d 1000, 1004 (Pa. Super. 1996) (en banc), appeal denied, 701 A.2d

577 (Pa. 1997) (citation omitted).

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         Here, Appellant signed a written plea colloquy and engaged in an oral

colloquy with the trial court. (See Written Guilty Plea, 6/16/11, at 3, 5; N.T.

Guilty Plea Hearing, 6/13/11, at 1-17).           Appellant understood the charges

against him, the nature of his pleas, his rights, and what rights he was

giving up.       (See Written Guilty Plea, 6/16/11, at 1-4; N.T. Guilty Plea

Hearing, 6/13/11, at 11). In particular, Appellant understood that he was

giving up all pre-trial, trial and post-trial rights, and that any appeal would

be limited to the court’s jurisdiction, the legality of the sentence, and the

voluntariness of the plea.         (See Written Guilty Plea, 6/16/11, at 2, 4).

Appellant further acknowledged that he was entering the pleas of his own

free     will,   had   consulted   counsel,   and   was   satisfied   with   counsel’s

representation.        (See N.T. Guilty Plea Hearing, 6/13/11, at 11-13).

Appellant understood the maximum possible sentences he was facing and

that the trial court had discretion on whether to sentence him to serve his

sentences at Docket Number 238 of 2010 consecutively to or concurrently

with his sentences at Docket Number 237 of 2010. (See Written Guilty Plea,

6/16/11, at 2, 4; Plea Agreement in Docket Number 238 of 2010, 6/16/11,

at 2).

         At the August 30, 2011 sentencing hearing, the Commonwealth

reiterated that it was recommending that the sentences at Docket Number

237 of 2010 run concurrently with the sentences at Docket Number 238 of

2010. (See N.T. Sentencing Hearing, 8/30/11, at 8). The Commonwealth

also pointed out that the trial court had discretion on sentencing Appellant to

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serve his sentences at Docket Number 238 of 2010 concurrently or

consecutively. (See id. at 9). Appellant did not dispute the terms of the

plea and did not inform the trial court that there had been a promise

regarding sentence.     (See id. at 4-5).      Appellant’s trial counsel promptly

filed post-sentence motions on September 13, 2011. The trial court denied

the motions; however, the trial court did issue an amended order on

September 26, 2011 at Docket Number 238 of 2010 in Appellant’s favor to

correct a calculation error in the initial sentence. (See N.T. PCRA Hearing,

1/27/14, at 8-9).

       Appellant further argues that trial counsel failed to investigate fully the

criminal charges and file appropriate pretrial motions.       Here, prior to the

issuance of a search warrant, local police had obtained information that

Appellant was involved in the buying, trading and/or selling of firearms

although he was a person prohibited from doing so under the law. As such,

the police, acting under the authority of the search warrant, discovered

various weapons and drugs at Appellant’s residence. (See N.T. Sentencing

Hearing, 8/30/11, at 13-17). Appellant claimed that his adolescent daughter

was willing to testify that the information contained in the search warrant

was inaccurate and he gave this information to trial counsel. Trial counsel

did not file a suppression motion. (See N.T. PCRA Hearing, 1/27/14, at 45-

46).

       At Appellant’s PCRA hearing, Appellant’s trial counsel testified that he

had reviewed over 800 pages of discovery documents that factored into his

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decision to advise Appellant to enter a plea agreement. (See id. at 16). He

further stated that he did not file a suppression motion after speaking at

length with Appellant about the search warrant and possible witnesses.

(See id. at 16-19). Trial counsel determined that Appellant had little to no

chance of sustaining any sort of defense to the charges he faced at trial.

(See id. at 18-19, 23-24).     Any reasonable basis for the course of action

selected proves effectiveness, not a hindsight evaluation to determine the

best strategic alternative.   See Commonwealth v. Charleston, 94 A.3d

1012, 1027 (Pa. Super. 2014).

      Therefore, we conclude that the PCRA court properly found that

Appellant failed to meet his burden of pleading and proving all three prongs

of the Pierce test for ineffective assistance of counsel and Appellant’s third

issue lacks merit.

      Accordingly, the PCRA court properly denied all of Appellant’s claims.

      Order affirmed.

      Donohue, J., joins the Memorandum.

      Olson, J., concurs in the result.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/17/2014




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