J-S19010-24
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : YASSIN MOHAMAD : : Appellant : No. 1436 MDA 2023
Appeal from the PCRA Order Entered October 6, 2023 In the Court of Common Pleas of Luzerne County Criminal Division at No(s): CP-40-CR-0000846-2020
BEFORE: DUBOW, J., BECK, J., and COLINS, J.*
MEMORANDUM BY DUBOW, J.: FILED: JULY 16, 2024
Appellant, Yassin Mohamad, appeals from the October 6, 2023 order
entered in the Luzerne County Court of Common Pleas dismissing his first
petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.
§§ 9541-46, as meritless. Counsel for Appellant has filed a Turner/Finley1
“no-merit” brief and a petition to withdraw as counsel. After review, we grant
counsel’s request to withdraw and affirm the order denying Appellant’s
petition.
The relevant facts and procedural history are as follows. On September
27, 2021, Appellant entered a counselled, open, no-contest plea to one count
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), Commonwealth v.
Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). J-S19010-24
of Aggravated Harassment by Prisoner2 after the Commonwealth charged him
with throwing a mixture of feces and urine at a corrections officer while
Appellant was incarcerated at SCI Dallas. Max Lubin, Esquire, represented
Appellant at the plea hearing. The court conducted an on-the-record guilty
plea colloquy in which Appellant acknowledged, inter alia, that he reviewed
the terms of his plea with Attorney Lubin, that he understood the statutory
maximum penalty he faced if he proceeded to trial,3 and that he was not forced
or promised anything to enter into the plea. That same day, the court
sentenced Appellant to a term of 27 to 54 months of incarceration, a sentence
at the low end of the standard range. The court ordered the sentence to run
concurrently with the sentence Appellant was already serving. There was no
discussion at the hearing regarding the award of any credit for time served.
Appellant did not file a post-sentence motion or direct appeal from his
judgment of sentence.
On January 7, 2023, Appellant pro se filed a PCRA petition asserting that
he was promised, but did not receive, credit for time served and that his plea
counsel was ineffective. Appellant attached to his petition an October 14,
2021 letter from John Donovan, Jr., Esquire, of the Luzerne County Office of
the Public Defender informing Appellant that Attorney Lubin no longer worked
for the Public Defender’s Office, but indicating that Attorney Donovan would ____________________________________________
2 18 Pa.C.S. § 2703.1.
3 The statutory maximum sentence for Aggravated Harassment by Prisoner,
graded as a third-degree felony, is 84 months of incarceration.
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investigate Appellant’s claim that he should have been given credit for time
served. Appellant also attached a January 10, 2022 letter from him to
Attorney Donovan following up on his time-credit issue.
The PCRA court appointed Leonard M. Gryskewicz, Jr., Esquire, to
represent Appellant. Attorney Gryskewicz filed a supplemental PCRA petition.
With respect to the facial untimeliness of Appellant’s petition, Appellant
averred that Attorney Donovan abandoned him by failing to respond to
Appellant’s inquiries and that Appellant exercised due diligence by writing
letters to Attorney Donovan asking for an update and then by filing the instant
petition.4
With respect to Appellant’s ineffective assistance of counsel claims,
Appellant asserted that Attorney Lubin was ineffective for advising Appellant
that the trial court would credit him with time-served from the date of his
arrest, which advice was “central to [Appellant] accepting the plea agreement
in this case.” Amended PCRA Pet., 3/20/23, at 5. Appellant argued that this
advice was incorrect because the court was required to credit any time
Appellant served between the time of his arrest and the time of sentencing to
the sentence Appellant was already serving at the time of his arrest. Appellant
claimed that that this issue has arguable merit because Appellant would not
have accepted the plea had Attorney Lubin not misinformed him regarding
4 The Commonwealth disputed Appellant’s characterization of Attorney Donovan’s conduct as abandonment and argued that Appellant’s petition was untimely.
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time credit. He also claimed that Attorney Lubin lacked a reasonable strategy
in advising Appellant that he would receive time credit and that Appellant
suffered prejudice as a result of Attorney Lubin’s ineffectiveness.
On October 6, 2023, the PCRA court held a hearing on Appellant’s
petition at which the Commonwealth presented the testimony of Attorney
Lubin.5 Attorney Lubin testified that he did not tell Appellant that “he would
have credit for the time period he was arrested until he was sentenced.” N.T.
PCRA Hr’g, 10/6/23, at 17, 19-21. He testified that he did tell Appellant that
he would receive a concurrent sentence, and that Appellant did, in fact, receive
a concurrent sentence. Id.
Following the presentation of evidence, Appellant argued that his plea
was involuntary because Attorney Lubin “misadvised [him] about what would
happen to the time credit of his plea,” which “was the reason he accepted the
guilty plea.” Id. at 27. The Commonwealth argued that Attorney Lubin’s
testimony that he did not tell Appellant that he would receive credit for time
served from the date of Appellant’s arrest speaks for itself. It also argued
that, even if the court did not believe Attorney Lubin’s testimony, Appellant
was not prejudiced by his guilty plea because he could have received a
consecutive sentence of up to 7 years if convicted at trial.
The PCRA court determined that Attorney Donovan had abandoned
Appellant and deemed Appellant’s PCRA petition timely but determined that ____________________________________________
5 Attorney Donovan also testified for the Commonwealth and Appellant testified on his own behalf.
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his claim that Attorney Lubin was ineffective lacked merit. Accordingly, the
PCRA court denied Appellant’s petition.
This timely appeal followed. Both Appellant and the PCRA court
complied with Pa.R.A.P. 1925. On October 12, 2023, Attorney Gryskewicz
filed a motion to appoint substitute counsel. The PCRA court granted the
motion and appointed current counsel, Matthew Kelly, Esquire, to represent
Appellant.
In this Court, Attorney Kelly filed a Turner/Finley brief raising the
following issue:
Whether [Attorney Lubin] was ineffective in permitting Appellant to enter his guilty plea[?]
Turner/Finley Brief at 1.
A.
Before we consider Appellant’s issue, we must review counsel’s request
to withdraw. Pursuant to Turner/Finley, “counsel must review the case
zealously.” Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa. Super.
2007). Counsel is then required to submit a “no merit” brief (1) detailing the
nature and extent of his review; (2) listing each issue the petitioner wishes to
have raised on review; and (3) explaining why the petitioner’s issues are
meritless. Id. The Court then conducts its own independent review of the
record to determine if the petition is meritless. Id. “Counsel must also send
to the petitioner: (1) a copy of the ‘no merit’ letter/brief; (2) a copy of
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counsel’s petition to withdraw; and (3) a statement advising petitioner of the
right to proceed pro se or by new counsel.” Id.
Our review of the record discloses that Appellant’s counsel has complied
with each of the above requirements. Counsel has presented a comprehensive
review of the issue Appellant seeks to raise on appeal and addressed the PCRA
court’s analysis where appropriate. Turner/Finley Brief at 3, 5-7. Based on
this analysis, counsel concludes that Appellant’s claim lacks merit. Id. at 8.
In addition, counsel sent Appellant copies of the Turner/Finley brief
and his petition to withdraw and advised Appellant of his rights in lieu of
representation. Letter from Counsel, 2/5/24; Application to Withdraw as
Counsel, 2/6/24. Because counsel has complied with the Turner/Finley
requirements, we will proceed with our analysis of Appellant’s claim and
independent review of the record.6
B.
We review the denial of a PCRA petition to determine whether the record
supports the PCRA court’s findings and whether its order is otherwise free of
legal error. Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014). This
Court grants great deference to the findings of the PCRA court if they are
supported by the record. Commonwealth v. Boyd, 923 A.2d 513, 515 (Pa.
Super. 2007). “We give no such deference, however, to the court’s legal
6 Appellant has not responded to the Turner/Finley brief filed in this Court.
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conclusions.” Commonwealth v. Smith, 167 A.3d 782, 787 (Pa. Super.
2017).
To prevail on a petition for PCRA relief, a petitioner must plead and
prove, by a preponderance of the evidence, that his conviction or sentence
resulted from one or more of the circumstances enumerated in 42 Pa.C.S. §
9543(a)(2). These circumstances include ineffective assistance of counsel,
which “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).
The law presumes counsel has rendered effective assistance.
Commonwealth v. Rivera, 10 A.3d 1276, 1279 (Pa. Super. 2010). “[T]he
burden of demonstrating ineffectiveness rests on [the] appellant.” Id. To
satisfy this burden, the appellant must plead and prove by a preponderance
of the evidence that: (1) the underlying claim has arguable merit; (2) no
reasonable basis existed for counsel’s actions or failure to act; and (3) “there
is a reasonable probability that the outcome of the challenged proceeding
would have been different” absent counsel’s error. Commonwealth v.
Fulton, 830 A.2d 567, 572 (Pa. 2003). Failure to satisfy any prong of the
test will result in rejection of the appellant’s claim. Id.
When a defendant pleads guilty, it is well-settled that that decision
results in the waiver of all defenses other than those challenging the
jurisdiction of the court, the legality of the sentence, or the validity of the plea.
Commonwealth v. Jones, 929 A.2d 205, 212 (Pa. 2007). In attempting to
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challenge a guilty plea, a defendant is “bound by the statements” he made
under oath during the plea colloquy and “may not later assert grounds for
withdrawing the plea which contradict [those] statements[.]”
Commonwealth v. Pier, 182 A.3d 476, 480 (Pa. Super. 2018) (citation
omitted).
Under the PCRA, a petitioner may obtain relief by proving that his guilty
plea was “unlawfully induced where the circumstances make it likely that the
inducement caused the petitioner to plead guilty and the petitioner is
innocent.” 42 Pa.C.S. § 9543(a)(2)(iii). When claiming ineffectiveness of
counsel “in connection with the entry of a guilty plea[,]” a defendant has the
burden of demonstrating that the alleged ineffectiveness “caused the
defendant to enter an involuntary or unknowing plea.” Pier, 182 A.3d at 478
(citation omitted).
Appellant asserts that trial counsel was ineffective “in allowing him to
enter his no contest plea without understanding all credit for time served
would run from the date of arrest, rather than the date of sentence.”
Turner/Finley Brief at 5.
The Honorable David W. Lupas has authored a well-reasoned analysis
addressing Appellant’s ineffective assistance of counsel claim. After a
thorough, independent review of the certified record, Appellant’s
Turner/Finley brief,7 the applicable law, and the PCRA court’s opinion, we
7 The Commonwealth did not file a brief as appellee.
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conclude that there is no merit to Appellant’s claim. Accordingly, we adopt
that opinion in part as our own and affirm the court’s denial of relief. See PCRA
Ct. Op., 12/15/23, at 7-8 (concluding the written plea agreement and the
record from the plea hearing indicate that no promise was made to Appellant
regarding credit for time served); 8 (concluding that, because Appellant was
already serving a state sentence when he was arrested for the instant offense,
he was not entitled to credit for time served from the date of his arrest); 8-9
(concluding that Attorney Lubin’s testimony that he did not advise Appellant
he would receive credit for time served from the date of his arrest was
credible).
C.
Based on the foregoing, we affirm the PCRA court’s denial of relief. The
parties are instructed to annex the PCRA court’s December 15, 2023 opinion
to any future filings.
Order affirmed.
Judgment Entered.
Benjamin D. Kohler, Esq. Prothonotary
Date: 7/16/2024
-9- Circulated 06/27/2024 10:21 AM
114 JUDICIAL DISTRICT OF PENNSYLVANIA 11TH JUDICIAL DISTRICT OF PENNSYLVANIA COMMONWEALTH OF PENNSYLVANIA IN THE COURT OF COMMON PLEAS COMMONWEALTH OF PENNSYLVANIA IN THE COURT OF COMMON PLEAS OF LUZERNE COUNTY OF LUZERNE COUNTY V. CRIMINAL DIVISION CRIMINAL DIVISION YASSINMOHAMAD YASSIN MOHAMAD Defendant / Appellant Defendant / Appellant : No. 846 0f 2020 : No. 846 of 2020
OPINION OPINION LUPAS,J. J. LUPAS,
I• I. FACTS PROCEDURAL HISTORY ANDPROCEDURAL HISTORY: FACTS AND
This matter comes before the Court pursuant to the Defendant's Appeal of our This matter comes before the Court pursuant to the Defendant's Appeal of our denial of his Motion for Post-Conviction Collateral Relief, hereinafter PCRA. denial of his Motion for Post-Conviction Collateral Relief, hereinafter PCRA.
Relevantly, Trooper Albert Oliveri of the Pennsylvania State Police filed a criminal Relevantly, Trooper Albert Oliveri of the Pennsylvania State Police filed acriminal complaint on November 30, 2020, which alleged, inter alia, that the Appellant was an complaint on November 30, 2020, which alleged, inter alia, that the Appellant was an inmate at the State Correctional Institute at Dallas, and that he sprayed a foul-smelling inmate at the State Correctional Institute at Dallas, and that he sprayed a foul-smelling liquid, believed to be a mixture of feces and urine, from his cell into the face of a deputy liquid, believed to be a mixture of feces and urine, from his cell into the face of adeputy corrections officer. (Criminal Complaint) On September 27, 2021, following the conduct corrections officer. ( Criminal Complaint) On September 27, 2021, following the conduct of a hearing, we accepted the Appellant's no contest plea to count one (1), aggravated of a hearing, we accepted the Appellant's no contest plea to count one ( 1), aggravated C.5A. G2703.1. The written plea agreement, which the harassment by a prisoner, 18 Pa. harassment by aprisoner, 18 Pa. C.S.A. § 2703.1. The written plea agreement, which the Appellant and his counsel signed in open court, represented "that the commonwealth Appellant and his counsel signed in open court, represented "that the commonwealth does not object to a sentence that is at the minimum and of the standard range." (Written does not object to asentence that is at the minimum end of the standard range." (Written plea agreement) The Commonwealth further represented that there was no objection to plea agreement) The Commonwealth further represented that there was "no objection to
[!] P] the sentence in this case being served concurrently to all other sentences." (Written plea the sentence in this case being served concurrently to all other sentences.'' (Written plea agreement) The Appellant waived a pre-sentence investigation and agreed to proceed to agreement) The Appellant waived apre-sentence investigation and agreed. to proceed to. sentencing, Following the conduct of a hearing on September 27, 2021, which included sentencing. Following the conduct of a hearing on September 27, 2021, which included a bizarre' allocution from the Appellant, we honored the plea agreement and sentenced a bizarre' allocution from the Appellant, we honored the plea agreement and sentenced him to a concurrent sentence within the standard range of the sentencing guidelines. No him to aconcurrent sentence within the standard range of the sentencing guidelines. No direct was filed. appealwas fled. direct appeal
On January 27, 2023, the Luzerne County Clerk of Court timestamped and On January 27 ; 2023, the Luzerne Count , ClerK, , t. of C,u•: timestGmpe-d and docketed a pro se post-conviction telief act petition fitad by the Appellant. On February 6, . docketed aPro n•, i . Ll v Appel, 1 4 i'• -. P se pest=co ; ctien relief aci p i?G.n,..=;; t. Or, • ti pe, a: , FebrUG•• • 6: r
2023, we entered an Order which, inter alia, appoints counsel to represent the Appellant to reprise ^_ tthe AppeH nt. 2023, we entered. an Order which, inter a!ia, apps Cite- co; ilsei - Court appointed PCRA counsel filed a helpful supp'eraentary PCRA petition which refined Court app ointed PCRA counsel pled ahe : e
ofulsuno;e ;;• rtG, r, jf RCPia.petit;o:n:wnicli.,efned and,a1pf[eg,the Appellant's arguments on March 20, 2023, and the Commonwealth filed and -amplified-the Appellant's ar • ments on Ma c[-,. 20, 2023, and the Commcnweaith iipd r
.. • a response Lgereto. On October 6, 2023, we presided over a hearing on the Appellant's a response thereto. On October 6, 2023, we presided. over a hearing on the Appellant's. petition. petition.
At thg.that hearing, as a threshold issue, we made the finding that the Appellant's ' 11 . ,At the hat hearing, as athreshold issue, we made the finding that the Appellant' s Motion for, Post-Conviction Collateral Relief was timejy. At. the _conclusion of the at the conclLjsjcn.._of t,`;,p Motion for, ;Post-.Conviction . Collateral ..► A►ief was,. t;,r :
evidentigry portion of the hearing, we determined #bat the Appellant's Petition,was :•ttn ? evidentiary portion of the • hearing;: ✓c;.d.etzr•:,,ined :: r ^•, ., I? tit{on.4"•!as
meritless and.we dismissed.it on .the record..(Order 10/6/2023).. The, Appellant meritless and ,..vie, - dismiss o . Tip.. re•ara. ;. (ulcer ?i;;ul'20'23 -„u• •,U :aRp llant subsequently filed a ,counseled and timely.Notice cf Appell.-hereafter, we granted subsequently filed a c; ur:,spled.apn tini.21-.: NoVice.cf .4- his ; we.g(anted :h cGft r is counsel's motion for substitute appellate counsel and directed .that appellate opupsel file counsel's- motion for substitute appellate counsel. and dirEcte-th.ai a.pnP ,I,ate..eoUns.el file
--,
The Appelt wgiven sun opportunity to ddress th courtprior to the imposition of seteic ved th die to The offer hi thk Appellant for having was given to addresscore th opportudyto an opporturutq to court to$e the courf'prior fecal tote that to'[he imposition'of hd pr reused se*iteriee: i thetlhecourtrooen [line to w. hihaving thanksoffor offer hiswt tie d al to. hit tothat the opportunity he to come courtcase wold problem the his presence at thatLerpe to sees females; note Ji if Couaty sot he_werewas soon - the courtsoor,: a waste trspored back of his time the Ste andtoalso. Correctional to,lhirt.that Filiry duetahe he woule.cause calls hose. prob:em (N.T. /27/2021 at.tha-L•uzerne pg W,7 C ' Jail 6-T - -if he•were not soon transported back to the State Correctional Facility that he 'calls home. (•.T. j•?7/2021 pgs. 6-7). 7" . w.. Le "! % 4e 4et 02J , 2] [ n v±, +
' .... , ; ·- 4
aa Concise Statement of Matters Complained of on Appeal. Appeal. Appellant's Appellant's counseled counseled Statement was filed on November 3, 3, 2023. 2023
For the reasons set forth below, we -believe trial counsel was. effective,and was effective, and the the Defendant's Motion for Post-Conviction Post- Conviction Collateral Collateral. Relief and the instant appeal the instant appeal are are
without without merit.
II. ll. LAW AND DISCUSSION: LAW AND DISCUSSION: `
The Appellant's first issue asks whether his PCRA Petition Petition is is timely. Generally, timely. Generally, post-conviction relief act petition must rust be filed within one year year after after judgment of sentence judgment of sentence
becomes final: becomes 42 Pa. C,SAGS final. 42Pa, C.S.A.§.9541(b)(1). statutory time limit of the 89541(b(1). The statutory the post-conviction post-conviction relief act relief act::is jurisdictional. Commonwealth is jurisdictional. Commonwealth v, v. Fahv, 737 A.2d Fahy, 737 A.2d 214, 214, . (Pa...1999) see also, (Pa. 1999) see also,
Commonwealth Commonwealth,v. Gamboa-Tavlor, 753 A.2d Gamboa-Taylor, 753 780 (Pa A.2d 780 (Pa 2000). The Appellant 2000). The Appellant was was sentenced on September 27, 2021, and accordingly accordingly his judgment judgment of of sentence sentence became became
final on on.,October 4October 27, 2022. See 42 Pa.C.S.A. Pa. C.S.A. S 9545(b)(3), The 9545(b)(3). The Appellant's Appellant's pro pro se PCRA se PCRA
'petition was petition Was time stamped January 27, 2023. Thus, Thus, his petition petition is is facially untimely. facially untimely. However, because the Appellant was incarcerated and acting acting pro pro se, se, the the prison. prison mailbox mailbox
rule, which deems deems . the document filed when the inmate inmate .places places the item in the item in the the prison prison mailbox, would be applicable . to him. Commonwealth Commonwealth v, V. Jones, Jones, .700 A.2d 423 700 A.2d 423.(Pa. (Pa. 1997). 1997). The Appellant mailed his pro se PCRA Petition on December December 6, 6, 2022. 2022. This This date date too too
renders the Appellant's pro se Petition facially facially untimely untimely leaving us to leaving us consider the to consider the
statutory exceptions which would grant a jurisdiction. to hear a a trial court jurisdiction facially untimely a facially untimely PCRA. See 42 PCRA. See 42 Pa. Pa. C.SANS C.S.A: 9545(b) 9545(b).
[3] (3 A trial court may have jurisdiction to consider a A afacially untimely PCRA facially untimely PCRA. petition petition in
cases where the petitioner pleads and proves one of the enumerated exceptions exceptions set forth
in 42 Pa. C.SA.G9545(b). 42_Pa, C.S.A.§ 9545(b). Pursuant to Section 9545(bi), 9545(b)(ii), a reviewing court may have a reviewing
jurisdiction to consider aa facially untimely PCRA petition if the petitioner petitioner pleads pleads and
petitioner and proves that facts upon which the claim is predicated were unknown to the petitioner
could not have been ascertained by tthe he exercise of due diligence. 42 Pa. C.S.A_ § diligence,_42_Pa,CSA,&
9545(b)(ii). Such claims have to be made within one year 9545(b)(ii), year of the date that the claim could
Pa. have been presented. 42 42 Pa. C.SA, C.S.A. G § 9545(b)(2). 9545(b)(2)
At the the PCRA hearing Appellant, through hearing on October 6, 2023, Appellant, counsel, entered through his counsel,
two two (2), exhibits which we admitted and made part of the record. The first document, (2).exhibits document,
Petitioner's #1, Petitioner's # 1, is a a letter from the Luzerne County County Public Defender dated October October 14, 14,
2021, which appears to be aaresponse to aaletter from the Appellant Appellant inquiring inquiring about credit credit
for time served. served. ((Petitioner's Petitioner's #1 # 1 10/6/2023.) The October 14, 2021, 2021, letter is not from the
attorney with that Appellant's public defender at the time of his plea but from another attorney
office who advised that he was assigned the case because plea counsel was no longer longer
with with the office. The the office. newly assigned The newly assigned public public defender defender represented represented that that he he would would investigate investigate
the issue and obtain aatranscript transcript of the plea plea and and sentence. sentence. ((Id.) Id.)
A second letter, admitted into A into evidence at the PCRA hearing #2, is hearing as Petitioner's #2, is
aa letter from the the Appellant to the public defender dated January January 10, 10, 2022. This letter
references the letter he received from the public defender2, and indicates that the public defender,
Appellant did not receive any response from the public defender's office after sending sending his
letter dated January 10, 2022. 2022. ((Petitioner's Petitioner's #2 #2 10/6/2023). 10/6/2023).
'- Admitted at the PCRA hearing Admitted hearing as Petitioner's # 1. Petitioner's 41,
[4] The Appellant remained incarcerated the entire time from the date of his sentence The Appellant remained incarcerated the entire time from the date of his sentence up to and including the date of the PCRA hearing. The letters that he and the attorney at up to and including the date of the PCRA hearing. The letters that he and the attorney at the Luzerne County Public Defenders exchanged indicate that he was seeking to raise a the Luzerne County Public Defenders exchanged indicate that he was seeking to raise a time credit issue since, at least, October of 2021. Thus, it was apparent to us that the time credit issue since, at least, October of 2021. Thus, it was apparent to us that the Appellant was taking steps to communicate with his counsel and advance his claims and o communicate with his counsel and advance his claims and Appellant was taking st eps t that counsel was not responding to him. The Appellant had no way of knowing that his that counsel was not responding to him. The Appellant had no way of knowing that his public defender was not investigating his claim. Indeed, the letter from the public defender public defender was not investigating his claim. Indeed, the letter from the public defender represented that his counsel was taking action. This type of abandonment has been represented that his counsel was taking action. This type of abandonment has been deemed to satisfy the Section 9545(b)(i) exception to the PCRA Act's jurisdictional time deemed to satisfy the Section 9545(b)(ii) exception to the PCRA Act's jurisdictional time limits. Commonwealth v Bennett, 930 A.2d 1264, (Pa. 2007). Accordingly, we determined limits. Commonwealth v. Bennett, 930 A.2d 1264, (Pa. 2007). Accordingly, we determined that we had jurisdiction to consider his claim which argued that his plea was not that we had jurisdiction to consider his claim which argued that his plea was not knowingly, voluntarily, or intelligently entered. After having considered the evidence and knowingly, voluntarily, or intelligently entered. After having considered the evidence and arguments presented at the PCRA hearing and a review of the record, we determined arguments presented at the PCRA hearing and a review of the record, we determined that the Appellant's challenge to his plea was wholly without merit. that the Appellant's challenge to his plea was wholly without merit. In his second allegation of error, the Appellant challenges this determination asking In his second allegation of error, the Appellant challenges this determination asking whether trial counsel was ineffective in advisinig the defendant that he would receive "whether trial counsel was ineffective in advising the defendant that he would receive credit for time served on the date of sentencing." We denied this claim for the reasons set credit for time served on the date of sentencing." We denied this claim for the reasons set forth forth below. below.
The ineffectiveness standard, known as the Strickland/Pierce test, requires that a The ineffectiveness standard, known as the Strickland/Pierce test, requires that a defendant plead and prove both that his counsel's performance was deficient and that the defendant plead and prove both that his counsel's performance was deficient and that the deficient performance prejudiced the defense. Strickland v, Washington, 466 U.S. 668 deficient performance prejudiced the defense. Strickland v. VVashington, 466 U.S. 668 (1984) and Commonwealth y, Pierce, 515 Pa. 153, 527 A.2d 973 (1987). It is well setted (1984) and Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 ( 1987). It is well settled in the Commonwealth of Pennsylvania, that a petitioner's claim of ineffective assistance in the Commonwealth of Pennsylvania, that a petitioner's claim of ineffective assistance
(s) [5] of counsel be analyzed by the court using a a three-prong three-prong test. test. Specifically, a Specifically, a petitioner petitioner
demonstrate: ((1) must demonstrate: 1) the underlyi underlying ng claim is of arguable arguable merit; merit; (2) (2) the particular course particular course of conduct pursued by trial counsel did not have aareasonable basis designed designed to effectuate effectuate
and (3) the client's interests; and ineffectiveness, there (3) but for counsel's error or ineffectiveness, is a there is a
proceedings would reasonable probability that the outcome of the proceedings have been would have been different different.
v. Yager, Pierce, supra.; Commonwealth , Yaqer, 454 Pa. Pa. Super. Super. 428 428 ((1996); 1996); Commonwealth_y Commonwealth v.
Hutchinson, 521 Pa. 482, A.2d 370 482, 556 A.2 370 ((1989); 1989); Commonwealth Commonwealth v. McNeil, 506 v, McNeil, Pa. 607, 506 Pa. 607,
802 ((1985). 487 A.2d. 802 1985). Moreover, it is the petitioner's obligation obligation to to plead plead and prove each and prove each prongs. of the Strickland/Pierce prongs
establish ' prejudice in the context of a "To establish a plea, plea, the defendant must must show show that that
there is a a reasonable probability that, but for counsel's errors, errors, he would not have would not have pleaded pleaded gpilty and guilty and would would have have insisted insisted on on going to ₹rial." going to Commonwealth v. trial." Commonwealth v, Barndt, Barndt, 74 A.3d 185, 74 A.3 185, 1;92 (Pa. 192 2023, the (Pa. Super 2013). At the PCRA hearing on October 6, 2023, Appellant did the Appellant did testify testify that he believed that he was innocent and would have gone gone to trial but but that he plead that he plead no no
contest because he wanted to get it over with. He testified that that plea plea counsel promised counsel promised
him time credit from the time of his arrest up to the time of his plea and sentence plea and on sentence on September 27, 2021.
hearing testimony To assess this claim we compared his PCRA hearing testimony to to the the record and record and
that it his responses to questions at the time of his plea and sentence. We note that it has has been been
long held that a a criminal defendant who elects to plead has aa duty duty to answer answer truthfully. truthfully.
v. Cappelli, 489 A.2 Commonwealth v, A.2d 813, 819 819 (Pa. 1895) Moreover, (Pa. Super. 1895) Moreover, an an enduring enduring
Pennsylvania rejects line of appellate cases in the Commonwealth of Pennsylvania rejects the necessity fee the necessity for a a
hearing for petitions which allege that counsel made promises promises which are are at at variance variance with with
[6] [6) plea. Commonwealth_y, his unequivocal responses at the time of his plea. Commonwealth v. Welch, Welch, 229 A.2d 229 A.2d
737 ((1967). 1967). Accord, Commonwealth ,Klinger, v. Klinger, 470 A.2d 540 540 ((Pa. Pa. Super Super 1983); 1983),
v. Vesay, 464 A.2d 1363 Commonwealth v, 1363 (Pa. Super 1983). (Pa. Super 1983). Commonwealth Commonwealth v, v. Young, Young, 369 A.2d 412 412 (Pa. (Pa. Super. 1976). Super. 1976)
When the Appellant appeared before the court in this case offering offering to plead plead no no
contest, he signed aawritten plea agreement which was made aapart part of the the record. record. This Thie
represented "that document represented "that the commonwealth does not object object to to a a sentence sentence that is at that is at
the minimum end of the standard range," range;" and that there was was "no objection to "no objection to the sentence the sentence
in this case being served concurrently to all other sentences." sentences." (Written plea agreement) (Written plea agreement)
The prosecutor summarized this agreement orally record, (N.T. orally on the record, (N.T. 9/27/2021 pg. 2). 9/27/2021 pg. 2) The The written plea agreement also noted the stipulation stipulation of the parties that the parties that the Appellant was Appellant was
RFEL:;,s•ffender pursuant to the sentencing an RFEL_offender sentencing guidelines. guidelines. (Written (Written plea plea agreement) agreement) We We
acceptedthe written plea colloquy signed by the Appellant accepted,the Appellant and offered by by the the parties parties before engaging in aacolloquy of the Appellant Appellant on the record.
During that colloquy we asked the Appellant whether he reviewed the the plea plea reluctantly,, that he had. agreement with his attorney and he responded, reluctantly, had. (N.T. 9/27/21 pg. (N.T. 9/27/21 pg.
3). He testified that he understood the elements of the offenses he was pleading no was pleading no
contest to and that he understood that he was waiving waiving his right right to a a trial. (Id. at p. (ld. at p. 4). We 4). We
directly ""is asked him directly is anyone forcing, threating you or promising promising you you anything anything to enter to enter
responded, ""No. this plea?" and the Appellant responded, No. I ,want up state. IIwant to want to go back up to make make
this clear. IIwant to go back up state- state. They got down: in this county. got me down county. IIdon't don't know know if if this this
way—Ijust want to go. That's all IIwant." is the way-l want." ((Id.) Id.) These These responses responses belie belie the the claims claims
made in the Appellant's PCRA and testimony which represent represent that he was promised promised credit credit
[7 [7] from the time of his arrest up to the time of his plea plea and sentence. The written sentence. The written plea plea agreement and record from the date of the plea indicate that no such such promise was made. promise was made
The law is clear that Section 9760 requires the sentencing to give sentencing court to give credit credit for for all time spent in custody as aaresult of the criminal charge charge for which which aasentence sentence of of prison prison Pa. G.SA.S is imposed. 42 Pa. C.S.A. 9760. 8760. Section 9760 provide credit 9760 does not provide credit for for time time served served
already been credited on unrelated offenses or when credit has already credited against against another another sentence. sentence.
589 (Pa. Barndt v. Pennsylvania Dept. of Corrections, 902 A.2d 589 Cmwlth. 2006), citing (Pa. Cmwth. 2006), citing Taqlienti v. Dept. Taglienti y, Dept,. of Corrections, 806 A.2 A.2d 988 988 ((Pa. Pa. Cmwith. Cmwlth. 2002). The Appellant 2002). The was Appelant was serving aa state sentence imposed from another unrelated case at at the the time of his time of his arrest arrest
up to and including the date of his plea and sentence. For that reason, reason, we did not we did not note note
any credit for time served when imposing imposing Appellant's Appellant's sentence. sentence.
At At..the the PCRA hearing, plea counsel testified that he reviewed the the plea plea agreement agreement
theAppellant and that he did not advise the Appellant with the:Appellant Appellant that he would would receive receive double double
credit. We credited his testimony, finding credit. - )/Ye finding that it was consistent consistent. with with the record. The the record. The
Appellant;sought Appellant sought immediate sentencing and waived aapre-sentence investigation. investigation. Thus, Thus, we are not privy to his entire criminal history, but given given that was serving that he was serving a a state state
stipulated that he sentence at the time of this offense and the parties stipulated he was was an an get RFEL
pursuant to the sentencing guidelines, it was apparent apparent to us that that this this was not his was not first his first
contact with the court or criminal justice system. We note this. this. because we find because we find itit telling telite that at critical times that times. during his plea colloquy, he presented a acavalier attitude attitude and and seemed seemed to what to rush through the colloquy. He offered answers which were not responsive were not to responsive t our questions. plea agreement questions. For example, when we asked is he reviewed the plea agreement with with his hie stated, ""I'll counsel he stated, I'll leave it it up to him." him." (N.T. pg. 3). (N.T. 9/27/2021 pg. We had 3). We had to press him, to press hi
181 [8] asking a second time whether he reviewed the agreement prior to offering his plea before asking asecond time whether he reviewed the agreement prior to offering his lea before e he agreed that hie had. (ld.). When we asked if he was forced to plead or promised he agreed that He had. '(Id.). When we asked if he was forced to plead or promised anything he said, "No before adding that all he wants is to go upstate. When we askeddif anything he said, "No "before adding that all he wants is to go upstate. When we asked if it was his decision to enter the plea, he said, I'm dying in prison man. I just want to go°." it was his decision to enter the plea, he said, "I'm dying in prison man. I just want to 03 " (Id. pg. 4-5). We discern this haste and evasiveness as an effort to vitiate his plea9.• at the (Id. pg. 4-5). We discern this haste and evasiveness as an effort to vitiate his lea at the time it was time it was bebeing i offered in the hope that he could later seek to withdraw it if it suited him. ng offered in the hope that he could later seek to wit p withdraw it if it For the reasons outlined above, the Defendant's PCRA claims and allegationssuited him. of For the reasons outlined above ,the Defendant's PCRA claims and allegations of error are without merit. Accordingly, our denial of the Defendant's claims for Post- error are without merit. Accordingly, our denial of the Defendant's claims for post_ Conviction Collateral Relief should be affirmed. Conviction Collateral Relief should be affirmed.
END OF OPINION END OF OPINION
sattorney,Aft. i4laa Lubin, Esq. sThe transcript erroneously attributed this comment to Appellant' (9) [9]