J-S46016-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

ALBERTO RODRIGUEZ

                            Appellant                No. 2457 EDA 2015


                   Appeal from the PCRA Order August 5, 2015
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0004156-2012


BEFORE: BENDER, P.J.E., OTT, J., and STRASSBURGER, J.*

MEMORANDUM BY OTT, J.:                              FILED AUGUST 19, 2016

        Alberto Rodriguez appeals from the order entered August 5, 2015, in

the Court of Common Pleas of Philadelphia County, denying his petition filed

pursuant to the Pennsylvania Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.

§§ 9541-9546. Rodriguez seeks relief from the judgment of sentence of an

aggregate term of 7½ to 15 years’ imprisonment imposed on September 19,

2012, following his open guilty plea to charges of aggravated assault,

robbery, criminal conspiracy, and carrying a firearm without a license.1 On

appeal, Rodriguez argues the PCRA court erred in denying his petition

without first conducting an evidentiary hearing on his claim that plea counsel

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    See 18 Pa.C.S. §§ 2702, 3701, 903, and 6106, respectively.
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rendered ineffective assistance by failing to challenge his guilty plea

colloquy. Based upon the following, we affirm.

      The PCRA court summarized the facts underlying this appeal as

follows:

            At approximately 5:40 p.m. on January 7, 2012,
      [Rodriguez] and an unidentified male entered The Fish Tank
      Guy, a store located at 3049 North 5th Street in Philadelphia, PA.
      [Rodriguez] was armed with a .32 caliber revolver and wore a
      handkerchief across his face.          Upon entering the store,
      [Rodriguez] held that .32 caliber revolver to Hector Berrios’s
      head and demanded money from [Berrios].              [Berrios] then
      delivered $100 cash from the store’s cash register. After the
      unidentified male collected the $100 cash, he and [Rodriguez]
      proceeded to exit the Store. However, before exiting the Store,
      [Rodriguez] fired two shots at [Berrios], one of which struck
      [Berrios]’s leg causing serious injuries that required an extensive
      hospital stay and multiple surgeries. [Berrios] unsuccessfully
      returned fire with his lawful firearm.        [Rodriguez] and the
      unidentified male fled the store unscathed. The .32 revolver was
      recovered on an adjacent sidewalk with two spent rounds in the
      chamber.      Roughly one month after the January 7, 2012
      incident, [Rodriguez] went to church and confessed his
      involvement in the criminal activity to a pastor. [Rodriguez]
      gave law enforcement a comprehensive statement and was fully
      cooperative with the detectives.

PCRA Court Opinion, 10/7/2015 at 2-3 (record citations omitted).

      Rodriguez was subsequently charged with several offenses, and on

August 1, 2012, entered an open guilty plea to one count each of

aggravated assault, robbery, conspiracy, and firearms not to be carried

without a license.   He was sentenced, on September 19, 2012, to two




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concurrent mandatory minimum terms of five to 10 years’ imprisonment2 on

the charges of aggravated assault and robbery, and a consecutive term of

two and one-half to five years’ imprisonment on the charge of conspiracy.

No further punishment was imposed for the firearms charge. Rodriguez did

not file a direct appeal.

        Subsequently, on May 17, 2013, Rodriguez filed a timely, pro se PCRA

petition. Counsel was appointed, and filed an amended petition on July 28,

2014, asserting plea counsel’s ineffectiveness in failing to object to a

deficient colloquy caused Rodriguez to enter an unknowing and involuntary

plea. Specifically, counsel averred the trial court failed to inform Rodriguez

“of the elements and nature of the charges against him and the permissible

range of sentences and/or fines for the offenses charged[.]” Amended Post

Conviction Petition for Relief Pursuant to 42 Pa.C.S. § 9543, 7/28/2014, at

4. The Commonwealth filed a motion to dismiss the petition on March 13,

2015.     Thereafter, the PCRA court provided Rodriguez with notice of its

intent to dismiss his petition, pursuant to Pa.R.Crim.P. 907, without first

conducting an evidentiary hearing. On June 30, 2013, Rodriguez filed a pro

se supplemental petition, asserting the mandatory minimum sentences

imposed are illegal pursuant to the decision in Alleyne v. United States,


____________________________________________


2
   See 42 Pa.C.S. § 9712 (mandatory minimum five year sentence for
offenses committed with a firearm).




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133 S.Ct. 2151 (U.S. 2013).3             Nevertheless, the PCRA court dismissed

Rodriguez’s petition on August 5, 2015,4 and this timely appeal followed.5
____________________________________________


3
  In Alleyne, the United States Supreme Court held “[a]ny fact that, by law,
increases the penalty for a crime is an ‘element’ that must be submitted to
the jury and found beyond a reasonable doubt.” Alleyne, supra, 133 S. Ct.
at 2155. In interpreting that decision, the courts of this Commonwealth
have determined that our mandatory minimum sentencing statutes,
including Section 9712, are unconstitutional where the language of those
statutes “permits the trial court, as opposed to the jury, to increase the
defendant’s minimum sentence based upon a preponderance of the
evidence” standard. Commonwealth v. Newman, 99 A.3d 86, 98 (Pa.
Super. 2014) (en banc), appeal denied, 121 A.3d 247 (Pa. 2015);
Commonwealth v. Valentine, 101 A.3d 801 (Pa. Super. 2014)
(invalidating 42 Pa.C.S. § 9712), appeal denied, 124 A.3d 309 (Pa. 2015).

       Although Rodriguez’s counsel did not include this claim in the amended
petition, or the court-ordered concise statement, we acknowledge that we
may raise a legality of sentencing issue sua sponte, so long as there is “a
basis for our jurisdiction to engage such review.” Commonwealth v.
Miller, 102 A.3d 988, 995 (Pa. Super. 2014) (holding appellate court had no
jurisdiction to consider Alleyne claim raised in untimely petition).
Nevertheless, Rodriguez is not entitled to relief on this claim. Recently, in
Commonwealth v. Washington, ___ A.3d ___, ___, 2016 WL 3909088, at
*8 (Pa. July 19, 2016), the Pennsylvania Supreme Court definitively held
that “Alleyne does not apply retroactively to cases pending on collateral
review.” The Court found Alleyne did not meet either criteria for the
retroactive application of a new constitutional law outlined in Teague v.
Lane, 489 U.S. 288 (1989) (plurality), in that it was neither “substantive in
character, [nor a] watershed rule[] of criminal procedure.” Washington,
supra, ___ A.3d at ___, 2016 WL 3909088, at *2 (citations and internal
punctuation omitted). Moreover, the Court also declined to “recognize an
independent state-level retroactivity jurisprudence grounded on fairness
considerations.” Id. at ___, 2016 WL 3909088, at *7.

       In the present case, Rodriguez’s judgment of sentence was final and
his case was pending on collateral review at the time Alleyne was decided
in June of 2013. Therefore, pursuant to Washington, supra, he is not
entitled to relief from his mandatory minimum sentences.




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      Rodriguez’s sole issue on appeal asserts the PCRA court erred in

summarily dismissing his petition without first conducting an evidentiary

hearing on his claim that counsel provided ineffective assistance at the time

of his guilty plea.

      Our standard of review is well settled:     “In reviewing the denial of

PCRA relief, we examine whether the PCRA court’s determination is

supported by the record and free of legal error.”        Commonwealth v.

Taylor, 67 A.3d 1245, 1248 (Pa. 2014) (quotations and citation omitted),

cert. denied, 134 S.Ct. 2695 (U.S. 2014). “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.” Commonwealth v. Carter,

21 A.3d 680, 682 (Pa. Super. 2011) (citation omitted). Moreover,

      [T]he right to an evidentiary hearing on a post-conviction
      petition is not absolute. It is within the PCRA court’s discretion
      to decline to hold a hearing if the petitioner’s claim is patently
                       _______________________
(Footnote Continued)
4
  We note the PCRA court initially dismissed the petition on July 17, 2015,
stating that the issues raised were without merit “pursuant to
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 2008).” Order,
7/16/2015. Rodriguez filed a pro se notice of appeal from that order.
However, on August 5, 2015, the court issued a replacement order
dismissing Rodriguez’s petition, and explaining that the prior order was
“inadvertently filed as dismissal under Finley.” Order, 8/5/2015. Counsel
then filed a timely notice of appeal from the August 5th order.
5
  On August 5, 2015, the PCRA court ordered Rodriguez to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Rodriguez complied with the trial court’s directive, and filed a concise
statement on August 17, 2015.




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      frivolous and has no support either in the record or other
      evidence. It is the responsibility of the reviewing court on
      appeal to examine each issue raised in the PCRA petition in light
      of the record certified before it in order to determine if the PCRA
      court erred in its determination that there were no genuine
      issues of material fact in controversy and in denying relief
      without conducting an evidentiary hearing.

Commonwealth v. Wah, 42 A.3d 335, 338 (Pa. Super. 2012) (citations

and internal citations omitted).

      Where, as here, the petitioner’s claim asserts the ineffective assistance

of counsel caused him to enter an involuntary plea, we must also bear in

mind the following:

      “To plead and prove ineffective assistance of counsel a petitioner
      must establish: (1) that the underlying issue has arguable merit;
      (2) counsel’s actions lacked an objective reasonable basis; and
      (3) actual prejudice resulted from counsel’s act or failure to act.”
      Where the petitioner fails to meet any aspect of this test, his
      claim fails.

Commonwealth v. Henkel, 90 A.3d 16, 30 (Pa. Super. 2014) (en banc),

appeal denied, 101 A.3d 785 (Pa. 2014) (internal citations omitted). In the

context of a guilty plea, the prejudice prong requires the petitioner to

demonstrate “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.”

Commonwealth v. Rathfon, 899 A.2d 365, 370 (Pa. Super. 2006), quoting

Hill v. Lockhart, 474 U.S. 52, 59 (1985).

      Here, Rodriguez’s ineffectiveness claim focuses on the content of his

plea colloquy.    Specifically, he claims “[he] was never asked if he

understood, nor was it explained to him on the record, the elements and



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nature of the charges against him and the permissible ranges of sentences

and/or fines for the offenses charged.”    Rodriguez’s Brief at 12.     Further,

Rodriguez asserts counsel had no reasonable basis for failing to challenge

the plea deficiency, and, had he known the elements of the crimes and the

permissible range of sentences, “it is highly []likely he would not have

entered a guilty plea.” Id. at 18.

      In considering the validity of a guilty plea colloquy, we note “[t]he

Pennsylvania Rules of Criminal Procedure mandate 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. Prendes, 97 A.3d 337, 352 (Pa. Super. 2014)

(citations omitted), appeal denied, 105 A.3d 736 (Pa. 2014).        Pursuant to

Rule 590, the court should inquire whether the defendant understands, inter

alia, “the nature of the charges to which he or she is pleading guilty[,]” and

“the permissible ranges of sentences and fines possible.” Pa.R.Crim.P. 590,

Comment. However, “nothing in the rule precludes the supplementation of

the oral colloquy by a written colloquy that is read, completed, and signed

by   the   defendant   and   made    a    part   of   the   plea   proceedings.”

Commonwealth v. Bedell, 954 A.2d 1209, 1212–1213 (Pa. Super. 2008)

(citation omitted), appeal denied, 964 A.2d 893 (Pa. 2009).

      Thereafter,

      [t]he reviewing Court will evaluate the adequacy of the plea
      colloquy and the voluntariness of the resulting plea by examining
      the totality of the circumstances surrounding the entry of that

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     plea. Pennsylvania law presumes a defendant who entered a
     guilty plea was aware of what he was doing, and the defendant
     bears the burden of proving otherwise.

Prendes, supra, 97 A.3d at 352 (citations omitted).     Accordingly, even if

there is an omission in the oral plea colloquy, “a plea of guilty will not be

deemed invalid if the circumstances surrounding the entry of the plea

disclose that the defendant had a full understanding of the nature and

consequences of his plea and that he knowingly and voluntarily decided to

enter the plea.”   Commonwealth v. Yeomans, 24 A.3d 1044, 1047 (Pa.

Super. 2011) (citation omitted).

     In the present case, the PCRA court found Rodruigez’s ineffectiveness

claim had no arguable merit. The court opined:

     [T]he plea court’s failure to delineate the elements of the crimes
     and to discuss exact sentences and/or fines for the crimes
     charged is not detrimental.         Prior to the plea colloquy,
     [Rodriguez] executed a Written Guilty Plea Colloquy with his
     attorney. See Written Guilty Plea Colloquy, p. 1-4. Among
     other things, this 4-page document explains [Rodriguez’s] rights
     and [Rodriguez’s] sentence and fine ranges. Id. at 1-3. On two
     separate pages, this written plea colloquy stated that
     [Rodriguez’s] attorney explained to [him] the elements of the
     crimes charged.1 Moreover, the written colloquy form contained
     handwritten notations in various sections. In particular, directly
     below the line stating that [Rodriguez’s] lawyer made him aware
     of the elements of the crimes, [Rodriguez] wrote in that he could
     go to jail for “67” years and could be fined “$90,000.00” for the
     crimes he committed. Id. at 1. [Rodriguez] acknowledged that
     he was made aware of these elements and that he was satisfied
     with his attorney’s explanation of them to him. Id. at 4.

     __________
        1
          The written colloquy states the following: “My lawyer
        told me what the elements of the crime(s) are that the
        District Attorney must prove to convict me.” Id. at 1.


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         “The crimes and elements of the crime(s) have been
         explained to me.” Id. at 3.

      __________

             In addition, on numerous occasions during the oral plea
      colloquy, the plea court assured that [Rodriguez] had adequate
      time to review the written guilty plea colloquy form with his
      attorney.      (N.T. 08/01/15 at 2, 3, 6, 7).            Specifically,
      [Rodriguez] stated that he was “satisfied that [his attorney]
      explained … all of the tenets that go with th[e] form about [his]
      right to trial, [his] parole rights, [his] risk of deportation, [and]
      all of the things that go with [the written guilty plea colloquy
      form] ….”       (Id. at 8).     On the record, the court made
      [Rodriguez] aware of the grades and degrees of the crimes that
      he was pleading guilty to. (Id. at 15-16). Moreover, the plea
      court explained [Rodriguez’s] presumption of innocence, the
      Commonwealth’s burden of proof, his right to ether a jury or
      bench trial, his right to challenge evidence presented by the
      Commonwealth, and the requirement of a unanimous jury
      verdict to convict him of the charges. (Id. at 3-5). In addition,
      the Commonwealth summarized the facts of the case on the
      record. [Rodriguez] confirmed to the plea court that those were
      the facts that he was pleading guilty to. (Id. at 15). Under the
      totality of the circumstances, there were no detrimental
      inadequacies in the plea court’s oral colloquy that would suggest
      that [Rodriguez’s] guilty plea was unknowing and involuntary
      because he was not informed of the elements of the crimes
      against him or the possible sentences and/or fines for these
      crimes.

PCRA Court Opinion, 10/7/2015, at 7-8.

      Our review of both the written and the oral plea colloquies reveal the

PCRA court’s findings are supported by the record.        Taylor, supra. First,

the written colloquy specifically set forth the maximum sentence the trial

court could have imposed for Rodriguez’s crimes.        See Written Guilty Plea

Colloquy, 8/1/2012, at 1. Therefore, Rodriguez’s claim that he was unaware

of the permissible range of sentences is belied by the record.



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      Further, while we concede the specific elements of the crimes to which

Rodriguez entered a guilty plea were not delineated in either the written or

oral colloquy, we agree with the PCRA court’s conclusion that, under the

totality of the circumstances, Rodriquez is entitled to no relief. Indeed,

      [o]ur Supreme Court has repeatedly stressed that where the
      totality of the circumstances establishes that a defendant was
      aware of the nature of the charges, the plea court’s failure to
      delineate the elements of the crimes at the oral colloquy,
      standing alone, will not invalidate an otherwise knowing and
      voluntary guilty plea. Commonwealth v. Schultz, 505 Pa.
      188, 477 A.2d 1328 (1984); Commonwealth v. Martinez, 499
      Pa. 417, 453 A.2d 940 (1982); Commonwealth v. Shaffer,
      498 Pa. 342, 446 A.2d 591 (1982).

Commonwealth v. Morrison, 878 A.2d 102, 107 (Pa. Super. 2005), appeal

denied, 887 A.2d 1241 (Pa. 2005).

      As the PCRA court explained, Rodriguez acknowledged twice in the

written colloquy that his attorney explained to him the elements of the

crimes charged.     See Written Guilty Plea Colloquy, 8/1/2012, at 1, 3.

Furthermore, during the oral colloquy, Rodriguez admitted: (1) he reviewed

the entire written colloquy thoroughly with his attorney; (2) he was satisfied

his attorney explained “all of the things that go with [the] form;” and (3) he

signed the form.    N.T. 8/1/2012, at 6-8.     At one point, when Rodriguez

stated he needed more time to talk to his attorney, the trial court stopped

the proceedings so that Rodriguez could consult with counsel. Id. at 7. It is

well-established that “[a] person who elects to plead guilty is bound by the

statements he makes in open court while under oath and may not later



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assert grounds for withdrawing the plea which contradict the statements he

made at his plea colloquy.” Yeomans, supra, 24 A.3d at 1047.

      Moreover, the recitation of the facts by the Commonwealth during the

oral colloquy, with which Rodriguez stated he agreed, were more than

sufficient to support the crimes of aggravated assault, robbery, conspiracy

and carrying a firearm without a license.     See N.T., 8/1/2012, at 12-15.

The Supreme Court has explained:        “In a case where ample, competent

evidence in support of a guilty plea is made a matter of record, allegations of

manifest injustice arising from the guilty plea must go beyond a mere claim

of lack of technical recitation of the legal elements of the crimes.”

Commonwealth v. Martinez, 453 A.2d 940, 943 (Pa. 1982).

      Therefore, while we certainly agree the better practice is to outline the

elements of the crimes in open court, we find that under the totality of the

circumstances in the present case, Rodriguez’s contention that counsel

should have objected to the court’s colloquy has no arguable merit.

Furthermore, even if we did determine counsel should have objected, we

have no hesitation in concluding Rodriguez failed to demonstrate prejudice,

i.e., there was no “reasonable probability that [he] would have opted to go

to trial rather than plead guilty” had he been specifically informed of the

elements of the crimes charged. Commonwealth v. Barndt, 74 A.3d 185,

199–200 (Pa. Super. 2013).

      Here, Rodriguez’s claim of prejudice consists solely of a bald allegation

in his brief that, had he known the elements of the crimes charged, “it is

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highly unlikely he would [] have entered a guilty plea.” Rodriguez’s Brief at

18. However, this statement stands in sharp contrast to the comments of

defense counsel at the sentencing hearing that Rodriquez was “adamant

about pleading guilty” even before the preliminary hearing, when a charge of

attempted murder was still pending against him.       N.T., 9/19/2012, at 9.

Counsel further stated Rodriquez decided to plead guilty “long ago,” and that

was the reason he waived his preliminary hearing. Id. at 22.        Therefore,

Rodriguez did not demonstrate he was prejudiced by counsel’s purported

omission.6

       Accordingly, because we find Rodriguez’s ineffectiveness claim has no

arguable merit, and Rodriguez failed to demonstrate prejudice, we conclude

the PCRA court did not abuse its discretion in failing to conduct an

evidentiary hearing.

       Order affirmed.




____________________________________________


6
  We note the Commonwealth emphasizes in its brief that when Rodriguez
provided the police with an “unsolicited confession” that “accurately reflected
the victim’s account of the incident,” Rodriguez was “not even under
investigation” for the crime. Commonwealth’s Brief at 10. Therefore, it
asserts “[t]here is no reasonable probability that defendant would have
made the perilous choice to challenge his confession at trial.” Id.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/19/2016




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