J-S26012-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
v.
NELSON HERNANDEZ RIVERA
Appellant No. 346 MDA 2021
Appeal from the PCRA Order entered March 2, 2021 In the Court of Common Pleas of Luzerne County Criminal Division at No.: CP-40-CR-0002098-2017
BEFORE: STABILE, J., MURRAY, J., and MUSMANNO, J.
MEMORANDUM BY STABILE, J.: FILED: JANUARY 21, 2022
Appellant, Nelson Hernandez Rivera, appeals pro se from the March 2,
2021 order entered in the Court of Common Pleas of Luzerne County
dismissing his first petition for collateral relief filed pursuant to the Post
Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. Upon review,
we affirm.
The PCRA court summarized the background of the instant appeal as
follows.
On October 29, 2018, [Appellant] pled guilty to criminal attempt to commit criminal homicide. [Appellant] caused life-threatening injuries to a woman by stabbing her multiple times in the chest. He discontinued his attack after being shot by a security guard.
Sentencing took place on January 4, 2019. A sentence of 216 to 480 months was imposed. This sentence was within the standard range of the sentencing guidelines and [Appellant] received credit for serving 645 days of incarceration prior to J-S26012-21
sentencing. [Appellant]’s post-sentence motion was denied by order dated May 2, 2019. A notice of appeal was filed twenty- seven days later. In an opinion filed on December 3, 2019, [our Court] affirmed [Appellant]’s judgment of sentence.
A pro se motion for post-conviction collateral relief was filed by [Appellant] on July 9, 2020. After receiving [Appellant]’s motion, an order was issued on November 16, 2020, which appointed conflict counsel to represent him. On January 13, 2021, appointed counsel submitted a no-merit letter and filed a motion to withdraw as counsel. In the letter and motion, appointed counsel indicated that he reviewed the file, communicated with [Appellant] and determined that [Appellant] had no PCRA claim and his petition had no merit.
Following a review of [Appellant]’s motion, appointed counsel’s no merit letter, motion to withdraw and an independent review of the record established in this case, an order was issued granting appointed counsel’s request to withdraw. A Notice of Intention to Dismiss Motion for Post Conviction Collateral Relief pursuant to Pa.R.Crim.P. 907 was filed on February 3, 2021.
Although [Appellant] was served with a copy of the Notice of Intention to Dismiss, he did not respond. Because [Appellant]’s PCRA [petition] had no merit, it was dismissed on March 2, 2021. On March 16, 2021, a Notice of Appeal[,] which was dated March 1, 2021, and appears to be signed by [Appellant], was filed. The notice of appeal does not include a statement that the order appealed from had been entered on the docket and no date is provided for the order resulting in the appeal.
A Rule 1925(a) opinion was filed on May 11, 2021. This opinion recommended that the appeal be quashed due to [Appellant]’s failure to comply with Pa.R.A.P. 301(a)(1) and Pa.R.A.P. 904(d). On October 22, 2021, [our Court] filed a non-precedential decision which remanded the case for the filing of a supplemental Rule 1925(a) opinion. In the decision, [we] determined that [Appellant] was appealing the order dated March 2, 2021 even though the notice of appeal filed by [Appellant] was dated March 1, 2021[,] which was prior to the existence of the March 2 order and several days before [Appellant] would have received the March 2 order by certified mail.
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The March 2, 2021 order dismissed the [petition] for post- conviction collateral relief filed by [Appellant] on July 9, 2020. In his July 9 [petition], Appellant raised two issues. [Appellant]’s first issue was based on the ineffective assistance of counsel for failing to challenge the legality of sentence where the sentence imposed is beyond the statutory maximum in violation of the Sixth and Fourteenth Amendments of the Federal Constitution and Article I Section 9 of the Pennsylvania Constitution.
....
The second claim made by [Appellant] in his [petition] for post- conviction collateral relief is that he suffered a miscarriage of justice due to the imposition of a sentence beyond the statutory maximum in violation of the Sixth and Fourteenth Amendments of the Federal Constitution and Article I Section 9 of the Pennsylvania Constitution. This allegation appears to be filed pursuant to 42 Pa.C.S.A. Section 9543(a)(2)(vii) in that the sentence imposed was greater than the lawful maximum.
Trial Court Supplemental Opinion, 11/18/21, at 1-2, 4.
“[A]n appellate court reviews the PCRA court’s findings of fact to
determine whether they are supported by the record, and reviews its
conclusions of law to determine whether they are free from legal error.”
Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014) (citation omitted).
In addressing ineffective assistance of counsel claims, we are guided
by the following authorities:
[A] PCRA petitioner will be granted relief [for ineffective assistance of counsel] only when he proves, by a preponderance of the evidence, that his conviction or sentence resulted from the “[i]neffective 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.” 42 Pa.C.S. § 9543(a)(2)(ii). “Counsel is presumed effective, and to rebut that presumption, the PCRA petitioner must demonstrate that counsel’s performance was
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deficient and that such deficiency prejudiced him.” Commonwealth v. Colavita, 993 A.2d 874, 886 (Pa. 2010) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). In Pennsylvania, we have refined the Strickland performance and prejudice test into a three-part inquiry. See Commonwealth v. Pierce, 786 A.2d 203, 213 (Pa. 2001). Thus, to prove counsel ineffective, the petitioner must show that: (1) his underlying claim is of arguable merit; (2) counsel had no reasonable basis for his action or inaction; and (3) the petitioner suffered actual prejudice as a result. Commonwealth v. Ali, 10 A.3d 282, 291 (Pa. 2010).
Spotz, 84 A.3d at 311-12 (citations modified).
A review of the record shows that the underlying claim (i.e., sentence
imposed is illegal because it is beyond the statutory maximum) is of no
merit. Appellant was convicted of attempted murder resulting in serious
bodily injury. The statutory maximum sentence for attempted homicide with
serious bodily injury is 40 years. See 18 Pa.C.S.A. § 1102(c). Appellant’s
sentence of 216 months to 480 months, therefore, does not exceed the
statutory maximum. See also PCRA Opinion, 11/18/21, at 4.
Because Appellant’s underlying claim has no arguable merit, we do not
need to address the other ineffective assistance prongs. See, e.g.,
Commonwealth v. Ly, 980 A.2d 61, 74 (2009) (“A failure to satisfy any of
the three prongs of the [Commonwealth v. Pierce, 527 A.2d 973 (1987)]
test requires rejection of a claim of ineffective assistance of trial counsel).
Accordingly, no relief is due to Appellant on his ineffective assistance of
counsel claim.
Appellant next raises the very same claim, i.e., sentence imposed is
illegal because it is beyond the statutory maximum, as a challenge under 42
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Pa.C.S.A. § 9543(a)(2)(vii), which permits a claim under the PCRA that “the
imposition of a sentence [was] greater than the lawful maximum.” As noted
above, however, the sentence imposed here was not greater than the lawful
maximum. Accordingly, the instant claim does not fare any better than the
previous one.
On appeal, Appellant raises additional claims of ineffective assistance
of counsel,1 which were raised on appeal for the first time.2 See PCRA Court
Opinion, 11/18/21, at 4-5. As such, they are waived. See Pa.R.A.P. 302(a).
To the extent these additional issues are not waived, the PCRA court
properly addressed them in its November 18, 2021 opinion. See PCRA
Court Opinion, 11/18/21, at 5-7. Briefly, the PCRA court found that none of
the additional claims had arguable merit, resulting, therefore, in Appellant’s
failure to meet the standard for proving ineffective assistance of counsel.
We agree with the PCRA court’s assessment of the additional ineffective
assistance of counsel claims. Accordingly, we direct that a copy of the PCRA
____________________________________________
1 We construe Appellant’s claims as arguing that trial counsel was ineffective for letting him plead guilty despite language issues, that direct appeal counsel was ineffective for not challenging the validity of his plea, and that PCRA counsel was ineffective for failing to challenge the effectiveness of trial counsel and direct appeal counsel. Appellant’s Brief at 3-8.
2 Compare Appellant’s PCRA Petition, 7/9/20, at 6, with Appellant’s concise statement of matters complained of on appeal, dated 5/27/21, but not filed in the trial court, and Appellant’s Brief at 3-8.
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court’s November 18, 2021 opinion be attached to any future filings in this
case.
Order affirmed.
This decision was reached prior to the retirement of Judge Musmanno.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 1/21/2022
-6- Circulated 12/30/2021 12:13 12-13 PM
COMMONWEALTH OF PENNSYLVANIA ::IN THE COURT OF COMMON PLEAS OF LUZERNE COUNTY
vs. VS. CRIMINAL CRIMINAL DIVISION DIVISION NELSON HERNANDEZ RIVERA N0: 2098 OF 2017 NO:
O"ER ORDER AND NOW, this 18 lWh day IT IS day of November, 2021, IT IS HEREBY HEREBY ORDERED that the
attached Supplemental Supplemental Opinion Opinion dated November 18,2021 18, 2021 i's is entered pursuant to Pa.R.A.P.
1925(a)(1). 1925(a)(1).
IT IS FURTHER ORDERED that the Luzerne County County Clerk of Courts is
ORDERED and DIRECTED to immediately transmit the above record to the Superior
Court of Pennsylvania.
The Clerk of Court shall promptly serve a a copy of this Order on each:party's each party's
attorney, or the party, if unrepresented, pursuant to attomey, to Pa.R.Crim.P.114. Pa.R.Crim.P. 114.
BY THE COURT:
ll7Uh V MICHAEL T. VOUGH, MICHAEL T. VOUGH, P.J P.J.
Copies To: Copies OF CARTS CLERK (F (ERK CC1URTS CRIMIJML CRIMINAL Lz WZ CNi YN0UIVIAMME (ii7ji018218+91f Luzerne Luzeme County District Attomey's Attorney's Office
Nelson Hernandez Hermandez Rivera (Inmate N: No: NS1530) NS 1530) SCI Forest Forest--PO Box 307 286 Woodland Drive Marienville, PA 16239
- ... /, ., COMMONWEALTH COMMON WEALTH OF PENNSYLVANIA IN THE :IN THE COURT OF COMMON PLEAS OF LUZERNE COUNTY OF
vs. VS. CRIMINAL DIVISION DIVISION
NELSON NELSON HERNANDEZ HERNANDEZ RIVERA NO: NO: 2098 OF OF 2017
SUPPLEMENTAL OPINION SUPPLEMENTAL. OPINION PURSUANT TO RULE 1925(a)(1) PURSUANT TO 1925/a)/1 CLERK OF L.ERK Or RTE COUR i -c CF; NIINA: GR2MN BY THE HONORABLE MICHAEL T T. VOUGH, UIZ CNTY LA2 KN118'21AH31 CNTW DUIS'2LB3:I On October 29,2018, 29, 2018, Defendant, Nelson Hernandez Rivera, pled guilty to criminal attempt
to commit criminal homicide. Defendant caused life-threatening injuries to a a woman by stabbing
her multiple multiple times in the chest. He discontinued his attack after being shot by aasecurity guard.
Sentencing took place Sentencing place on January January 4, 2019. A A sentence of 216 to to 480 months was imposed imposed.
This sentence was within the standard range range of the sentencing guidelines guidelines and Defendant received
credit for serving serving 645 days days of incarceration prior prior to sentencing. sentencing. Defendant's post-sentence motion
was denied by was by order dated May 2, 2019. dated May 2019. A A notice notice of of appeal appeal was liled twenty-seven was filed twenty-seven days later. later. In
an opinion opinion filed on December 3, 2019, the Superior Count Court of Pennsylvania affirmed the Defendant's
judgment judgment of sentence. of sentence
A pro se motion for post-conviction A pro post-conviction collateral relief was filed by Defendant on July 9, 2020.
Amer After receiving receiving Defendant's motion, an order was issued on November 16, 2020 which appointed
conflict counsel to represent represent him. him. On January 13, 2021, appointed counsel submitted aano-merit
letter and filed aamotion to withdraw as counsel. In the letter and motion, appointed counsel
indicated that that he he reviewed reviewed the file, communicated with with Defendant Defendant and determined that that Defendant
had no PCRA claim and his petition had no merit. merit
Following Following a a review of Defendant's motion, appointed appointed counsel's no merit letter, motion to
withdraw and an independent independent review of the record established in this case, an order was issued granting appointed counsel's request to to withdraw. A ANotice of Intention to Dismiss Motion for Post
Conviction Collateral Relief pursuant to Pa.R.Crim.P. Pa.R.Crim.P, 907 was filed on February February 3, 2021.
Although Defendant was served with aacopy of the the Notice of Intention to Dismiss, he did
not respond. not respond. Because Because Defendant's PCRA PCRA motion had no merit, merit, it was dismissed on March 2, 2021.
On March 16, 2021, aaNotice of Appeal which was dated March 1, 2021, and appears to be signed
by Defendant, was was,filed. The notice of appeal does not include a a statement that the the order appealed
from had been from had been entered entered on the docket on the docket and no date and no is provided date is provided for for the the order order resulting resulting in the appeal. in the appeal.
A A Rule Rule 1925(a) 1925(a) opinion opinion was was filed filed on May 11, I1, 2021. 2021. This This opinion opinion recommended that the the
appeal appeal be gnashed quashed due to Defendant's failure failure to comply with Pa.RA.P. 30l(a)(1) 301(a0l) and Pa.R.A.P.
October 22, 2021, The Superior Court of Pennsylvania 904(d). On October Pennsylvania filed aanon nonprecedential precedential decision
which remanded the case for the filing of a a supplemental supplemental Rule 1925(a) opinion. In the decision, the the
Superior Court determined that Defendant was was appealing the order dated March 2, 2021 2021 even
though though the notice of appeal filed by Defendant was dated March 1, 2021 which was prior to the 1,2021
existence of the March 22order and several days before Defendant would have received the March 22
order by by certified mail.
The March 2, 2021 order dismissed the the motion for post-conviction post-conviction collateral relief filed by
Defendant on July July 9, 2020. In his July 9 9motion, Defendant raised two issues. Defendant's first
issue was based on the ineffective assistance of counsel for failing to challenge the the legality of ' sentence where the sentence imposed is beyond the statutory maximum in violation of the the Sixth and
Fourteenth Amendments of the Federal Constitution and Article I I Section 99of the Pennsylvania
Constitution.
be eligible To be eligible for relief under Section 9543(a)02)ii) 9543(a)(2)(R) of the Post Conviction Relief Act, aa
Petitioner must plead plead and prove by aapreponderance of the evidence that "ineffective assistance of counsel which, in the circumstances of the particular case, cas', so undermined undermincd the truth-
determining process determining process that no reliable that no reliable adjudication adjudication of guilt or of guilt or'sinnocence could have innocence could have taken taken place." place."
Commonwealth v. y, Hickman, 799 A.2d 136, 136,140 140 n.2 (Pa.Super. (Pa.Super. 2002) quoting 42 Pa.C.S.A. PA.C.S.A.
9543(a)(2)(ii). There is aapresumption that counsel is effective. Commonwealth Section 9543(a)2ii). Commonwealth v.
Cross, 634 Cross, 634 A.2d A.24 173, 173, 175 (Pa, 1993) 175 (Pa. 1993) citing citing Commonwealth v. , Pierce, Pierce, 527 527 A.2d A.24 973, 975 (Pa. 973,975 (Pa.
1987). Defendant bears the burden of proving counsel's ineffectiveness and that burden does not
Cross, 634 A.2d at 175 citing Commonwealth v. shift. Cross, y, Jones, 471 A.2d A.24 879 (Pa. (Pa. 1984).
For aaDefendant to prevail prevail on an ineffectiveness claim, he must satisfy aathree-prong est test
and demonstrate demonstrate that; "(1) his that: "(I) his underlying underlying claim is of (2) the of arguable merit; (2) the particular course course of
conduct pursued pursued by by counsel did did not have reasonable basis designed have some reasonable designed to to effectuate effectuate his
interests; (3) but interests; and (3) but for counsel's ineffectiveness, there is aareasonability probability that the
outcome outcome of of the the proceedings proceedings would would have been different." Commonwealth v. v. Ali, 10 10 A.3d 282,
291 (Pa, (Pa. 2010) citing Commonwealth v. 2010) citing (Michael) Pierce, 786 A.2d 203, 213 (Pa. 2001); , (Michael Commonwealth Commonwealth v. Kimball, 724 AN A.2d 326, 333 (Pa. 1999). "A failure to satisfy any prong of the
ineffectiveness test requires rejection of the claim of ineffectiveness." Commonwealth v. requires rejection v Daniels, Daniels, 963 A.2d 409, 963 A.2 409, 419 (Pa. (Pa. 2009) citing Commonwealth v. citing Commonwealth • Sneed, Sneed, 899 A.2d A.24 1067,1076 1067, 1076
(Pa. 2006), (a. 2006). With regard regard to counsel not having aareasonable reasonable' basis for his action, his approach
must be "so unreasonable that no competent lawyer would have chosen it." Commonwealth v• must v,
Ervin, 766 A.2d 859, Ervin, 859, 862-63 (Pa (Pa.Super- Super. 2000) quoting Commonwealth y. v. Miller, 431 A.2d 233,
234 (Pa. (Pa. 1981). 1981). Finally, Finally, trial counsel cannot be deemed ineffective for •failing to pursue a a
meritless claim. Commonwealth v. , Loner. Loner, 836 A.2d 125, 132 (Pa.Super. 2003).
On appeal, Defendant On direct appeal, Defendant raised raised an an issue issue regarding regarding his sentence sentence which was was within within the
standard range the sentencing range of the sentencing guidelines. The Superior Court of Pennsylvania affirmed the
I judgment judgment of sentence in a a non-precedential decision filed fled on December 3, 2019. A A defendant
cannot obtain post post conviction review of aaclaim previously previously litigated on direct appeal.
Coron Commonwealth wealth v. v, Brown, 872 A.2d 1139,1144-45 (Pa. 2005). A 1139, 1144-45 (Pa. A defendant is also unable to
obtain post post conviction review review of claims previously previously litigated litigated on appeal appeal by presenting new new theories theories of of
relief to support support the previously previously lit litigated Id. at 1145 igated claims. [d. 1145 citing y, citing Commonwealth Commonwealth v.Stokes, Stokes, 839
A.2d 226, 229 (Pa. 2003). Defendant pled pled guilty to criminal attempt to to commit criminal homicide.
The statutory maximum sentence for attempted homicide with serious bodily injury is 40 years. 18
Pa.C.S.A. section 1102(c). Pa.C.s.A. 1102(¢). Defendant's Defendant's sentence of of 216 216 months months to to 480 480 months does does not exceed the the
statutory maximum.
The second claim made by by Defendant in his motion for post-conviction collateral relief is .
that he suffered aamiscarriage miscarriage ofjustice due to the impositions of a imposition-of a sentence beyond beyond the statutory • maximum in violation of the the Sixth and Fourteenth Amendments ,Amendments of the Federal Constitution and
Article IISection 99of the the Pennsylvania Pennsylvania Constitution. Constitution. This allegation allegation appears to to be be filed filed pursuant pursuant to to
42 Pa.C.S.A. 9543(a)(2)(vii) in that the sentence imposed was greater than the lawful Pa.CS.A. Section 9543(a)2(vii)
maximum.
previously indicated, the Defendant was sentenced to 216 months to 480 months. This As previously
sentence did not exceed the statutory maximum. Both issues raised by Defendant in his motion for
post-conviction post-conviction collateral relief had no merit whatsoever. The The March 2, 2021 order dismissing the
motion filed by Defendant on July 9, 9, 2020 should be be affirmed. affirmed. • As As noted by by the Superior Court in its the Superior its October 22, 2021 decision, Defendant raised several
issues in in his appellate appellate brief. These issues were the ineffectiveness of trial counsel for allowing him
plead guilty in spite of an alleged language barrier, that direct appeal counsel was ineffective for to plead
failing failing to challenge challenge the validity validity of his guilty plea, and that PCRA counsel was ineffective for failing to allege allege the ineffectiveness of trial and direct appeal counsel by not not challenging the validity of his
guilty guilty plea. plea. None None of these issues of these issues were ever raised were ever raised before before this Court. this Court. i
"Claims not raised in the trial court may not be raised for the first time on appeal."
Commonwealth Commonwealth v. Johnson, 33 A.3d 122,126 v, Johnson, 122, 126 (Pa.Super. 2011) 201 1) citing Commonwealth Commonwealth v. y. Rush, 959
945 7949 (a.Super. A.2d 945, (Pa.Super. 2008). "Issues not raised in the lower court are waived and cannot be
raised for the first time on appeal." appeal." Pa,R.A.P. 302(x). ' Pa.R.A.P. 302(a). In his motion for post conviction collateral
relief, relief, Defendant only only raised issues regarding regarding the statutory m,`Wmum maximum sentence. None of the issues
set forth set forth by by Defendant Defendant in in his appellate appellate brief were raised raised in in the the lower court. Defendant's Defendant's issues
regarding regarding the ineffectiveness of trial counsel and direct appeal counsel are waived. Defendant's
regarding the issue regarding the ineffectiveness of PCRA counsel was able to be raised on appeal. See to be
Commonwealth v, Commonwealth v. Bradley, .A.3d_,2021 A.3d ,2021 WL 4877232 (Pa. (Pa. 2021). Regardless of the waiver
issue, issue, all all issues raised raised by by Defendant on on appeal appeal will be be addressed in in accordance with.the with the Superior Superior
Court's directive. the time of Defendant's At the Defendant's guilty guilty plea plea and sentencingy sentencing he he was was represented by by private private
interpreter was used at counsel. An interpreter at both proceedings. proceedings. At no no'-time time did Defendant indicate that he
was was unable unable to to communicate with with counsel due to to aalanguage barrier. barrier. During During his his guilty guilty plea, plea,
Defendant Defendant testified testified that that he he understood understood the the terms and conditions of of the the plea plea agreement. agreement. N.T. N.T.
10/19/18 10/19/18 at 5., He at 5. also stated He also stated that that the the plea agreement had plea agreement been fully had been fully explained to him explained to and he him and had no he had no
questions regarding questions regarding what he was pleading pleading guilty to. Id. at 5-6. Defendant never gave this court court any
reason to believe reason to believe that he had any difficulty discussing any difficulty discussing the entry of of aaguilty plea plea with with counsel. counsel. In
fact, representation. M. faet, Defendant indicated that he was satisfied with his lawyer's representation: Id. at 8. Had
Defendant raised an ineffectiveness claim with this court regarding counsel allowing him to plead
guilty guilty despite despite an alleged language an alleged language barrier, it would would have been. denied. have been denied I •• i
A A valid guilty plea must be knowingly, voluntarily and intelligently entered.
Commonwealth v. y. v, Rush, 909 A.2d 805, 808 (Pa.Super. 2006) citing Commonwealth Commonwealth Pollard, v..Pollard,
832 AN A.2d 517, 522 (Pa.Super. 2003). An on-the-record colloquy must be conducted to ascertain
whether aadefendant is aware of his rights and and the consequences of his plea. Commonwealth v. v
Hodizes, Hodges, 789 A.2d A.24 764, 765 (Pa.Super. (Pa.Super. 2002). Pursuant to Pa.R.Crim.P. 590, a a court should
that a determine that adefendant understands:
(1) the nature of the charges toto which he is pleading •leading guilty; (2) the factual basis for the plea; (3) his right to trial by jury; (4) the presumption innocence;(5) of innocence; (5) the permissible ranges ofo£ sentences and fines possible; and (6) (6) that the court is not bound by the terms of the agreement unless the court accepts the agreement.
Commonwealth v, Commonwealth v. Kelley, Kelley, 136 A.3d 1007, 136 A.34 1007,.1013 1013 (Pa.Super. (Pa Super. 2016) citing Commonwealth_v.O, 2016) citing Commonwealth v. G.
Watson, 835 A.2d A.24 786 (Pa.Super. 2003).
"The The law law does not require require that the defendant be be pleased with the outcome of his decision
to enter aaplea of guilty: All that is required is that his decision to plead guilty be knowingly,
voluntarily, voluntarily, and intelligently intelligently made." Commonwealth v. v, Anderson, Anderon, 995 A.2d 1184, 1192 .
(Pa.Super. 2010). (Pa.Super. 2010). When aadefendant makes statements under oath at the guilty plea plea. colloquy, he I4 'is is bound by by those statements and may not assert grounds f6i for withdrawing the plea which y,v. Timchak, 69 A.3d contradict the statements. Commonwealth Commonwealth ' 765, 774 (Pa.Super. 2013) A.34765, 2013).
Prior to accepting accepting Defendant's guilty plea on October 29, 2018, this Court conducted an ' on-the-record colloquy colloquy to ascertain whether the plea was knowingly, voluntarily and intelligently
v. entered and if Defendant was aware of this rights and the consequences of his plea.
Commonwealth v.Hodges, Hodges, 789 A.2d 764, 765 (Pa.Super. 2002). A
made as to Defendant' Defendant'ssunderstanding of of- A determination was also
(1) (1) the nature of the charges to which he is pleading guilty; guilty; (2) the factual'basis factual basis for the plea; (3) (3) his right to to trial by jury; (4) the the presumption 4 $ of innocence; (5) the permissible ranges ranges of sentences and fines possible; possible; and (6) (6) that the court is not bound by by the terms of the agreement agreement unless the court accepts the agreement.
Commonwealth v. Kellev, 136 v. Kelley, A.3d 1007, 1013 (Pa.Super; 136 A.34 Commonwealth v. (Pa.Super!,2016) citing Commonwealth v.G, Car.
Watson, 835 A.2d A2d 786 (Pa.Super. 2003). See also Pa.R.Crim,P. 590. Defendant was made Pa.R.Crim.P. 590,
aware of and and understood understood the criteria criteria provided provided in in the the comment comment to Rule Rule 590 590 before entering entering his his
guilty plea. plea.
Defendant Defendant responded appropriately to to the the questions questions asked asked of of him him during his his guilty plea plea
colloquy. He exhibited no confusion and never requested colloquy. requested to to withdraw his plea. He admitted that
he committed the offense of criminal attempt to commit criminal criminal homicide. N.T. 10/29/18 at homicide. NT, at 6. 6.
Before Defendant's sentence was imposed, he took the opportunity to address this court. . : Defendant N.T. 1/4/19 at 14. He also apologized and Defendant admitted that he attacked the victim. NT,
expressed Td. expressed remorse. ,[d.
appeal counsel nor trial counsel had Neither direct appeal had.any any reason to challenge the validity of
Defendant's guilty guilty plea, plea. Counsel cannot be be deemed ineffective for failing to pursue aameritless
claim. claim. Loner, supra supra.
Defendant was sentenced within the standard range of the sentencing guidelines and his
sentence sentence did did not not exceed exceed the statutory statutory maximum. maximum. He was provided with He was with an an interpreter interpreter at at the time
of of his his guilty guilty plea plea and sentencing. sentencing. Defendant never exhibited any confusion in connection with with I the legal legal proceedings proceedings held before this court. He never indicated that he had any difficulty ' communicating guilty plea communicating with his counsel. His guilty plea was was knowingly, knowingly, voluntarily voluntarily and intelligently intelligently
entered after aathorough colloquy was completed. The March 2, thorough colloquy 2, 2021 order dismissing the
motion for post-conviction collateral relief should be affirmed. •
BY BY THE THE COURT: COURT:
DATE: November November 18, 2021 18, 2021 c4el, MICHAEL .VOUGII, P.J.