Com. v. Navedo, A.

• Court: Superior Court of Pennsylvania
• Decided: August 16, 2021
• Docket: 1370 MDA 2020
• Status: Unpublished

Opinion

J-S20004-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : ANGEL NAVEDO : : Appellant : No. 1370 MDA 2020

Appeal from the PCRA Order Entered September 25, 2020 In the Court of Common Pleas of Berks County Criminal Division at No(s): CP- 06-CR-0005206-2013

BEFORE: NICHOLS, J., KING, J., and MUSMANNO, J.

MEMORANDUM BY NICHOLS, J.: FILED: AUGUST 16, 2021

Appellant Angel Navedo appeals from the order denying his timely first

Post Conviction Relief Act1 (PCRA) petition. Appellant contends that plea

counsel’s ineffectiveness caused him to enter an involuntary and unknowing

guilty plea. We affirm.

The PCRA court summarized the facts and procedural history of this

matter as follows:

On April 21, 2016, [Appellant] pleaded guilty to delivery of a controlled substance, persons not to possess a firearm, and criminal conspiracy. [Appellant] was sentenced on the same day to a term of six to twelve years [of incarceration]. [Appellant] was represented by Daniel Nevins, Esq. [(plea counsel)] during his plea and sentencing. [At the time Appellant pleaded guilty, he was on parole for a prior conviction. The Pennsylvania Board of Probation and Parole subsequently revoked Appellant’s parole and recommitted him to two years’ backtime for the parole ____________________________________________

1 42 Pa.C.S. §§ 9541-9546. J-S20004-21

violation in his prior case. The sentence of six to twelve years’ incarceration in the instant case runs consecutively to the two years’ backtime for the parole revocation. See 61 Pa.C.S. § 6138(a)(5)(i).]

On May 17, 2017, [Appellant] filed a pro se PCRA petition. Shortly thereafter, this court appointed Osmer Deming, Esq. to represent [Appellant] in his PCRA petition. On March 12, 2018, Osmer Deming, Esq. filed a “no merit letter” pursuant to Finley and Turner requesting leave of court to withdraw as counsel. Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) [(en banc)]; Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988). This court allowed Attorney Deming to withdraw as counsel on March 13, 2018. On April 3, 2018, this court filed a “Notice of the Intention to Dismiss PCRA Petition (In Part)”. This notice stated that this court’s intention was to dismiss all of the issues in [Appellant’s] PCRA [petition] except the issue of the guilty plea colloquy as it related to whether [Appellant] entered a knowing and voluntary guilty plea. This court ordered that [Appellant’s] PCRA be dismissed in part on May 10, 2018. On June 19, 2018, this court appointed Lara Hoffert, Esq. to represent [Appellant] in his PCRA proceedings. On October 24, 2018, a hearing was held on the final issue of [Appellant’s] PCRA petition.

PCRA Ct. Op., 12/7/20, at 1-2 (footnotes omitted and formatting altered).

At the PCRA hearing, Appellant testified that plea counsel advised him

that if he pleaded guilty, he would receive a sentence of six to twelve years’

incarceration and would be eligible for parole after six years. N.T. PCRA

Hr’g, 10/24/18, at 9, 11-13. Appellant explained that based on advice from

plea counsel, he believed that he would be eligible for parole in six years

regardless of the back time he might serve if the parole in his other case

was revoked. Id. at 9-13. Appellant stated that it was his understanding

that the back time for his other case would run concurrently with the

sentence in the instant case. Id. at 10-11, 13. Appellant further testified

-2- J-S20004-21

that plea counsel did not specifically discuss the implications that the instant

guilty plea would have on his existing parole. Id. at 12-14.

Debbie Sysenh, Appellant’s paramour, testified that plea counsel

explained to her that Appellant would be eligible for parole after six years if

he pleaded guilty in the instant case. Id. at 15-16. According to Ms.

Sysenh, Appellant and plea counsel did not discuss the fact that Appellant

was currently on parole for another case during any of the meetings she

attended. Id. at 17-18.

Plea counsel testified that he advised Appellant that it was in his best

interest to accept a plea bargain. Id. at 22. Plea counsel explained that his

representations to Appellant that he would serve six to twelve years’

incarceration only referred to the sentence in the instant case. Id. at 25-27.

Plea counsel testified that he did not recall having a conversation with

Appellant about adverse consequences that his guilty plea might cause

concerning his concurrent parole in the other case. Id. at 24-25, 30-31.

The PCRA court dismissed Appellant’s PCRA petition on September 25,

2020.2 Appellant filed a timely notice of appeal. Appellant subsequently

filed a court-ordered Pa.R.A.P. 1925(b) statement. The PCRA court issued a

Rule 1925(a) opinion addressing Appellant’s claim.

____________________________________________

2 We have amended the caption of this appeal to reflect the date of entry of

the order. See Pa.R.A.P. 108(a)(1), (d)(1) (providing that the date of entry of an order is the date on which copies of the order are sent to the parties).

-3- J-S20004-21

Appellant raises a single issue for our review:

Whether the PCRA court erred in denying Appellant’s PCRA petition asserting that his guilty plea was not knowingly and voluntarily tendered and therefore illegal where Appellant was misinformed by counsel as to the duration of his sentence and the collateral consequences of entering the plea?

Appellants’ Brief at 5 (formatting altered).

Following our review of the record, the parties’ briefs, and the well-

reasoned conclusions of the PCRA court, we affirm on the basis of the PCRA

court’s opinion. See PCRA Ct. Op. at 2-6. Specifically, we find that the

record supports the PCRA court’s finding that plea counsel advised Appellant

that he would receive a sentence of six to twelve years’ imprisonment in this

case if he pleaded guilty. See id. at 4-5; see also Commonwealth v.

Diaz, 183 A.3d 417, 421 (Pa. Super. 2018) (stating this Court grants

“deference to the PCRA court’s findings that are supported in the record and

will not disturb them unless they have no support in the certified record”).

The record also supports the PCRA court’s factual finding that “[plea counsel]

did not tell [Appellant] that pleading guilty would have no adverse

consequences on his parole [in another case].” See PCRA Ct. Op. at 5; see

also Diaz, 183 A.3d at 421. The PCRA court correctly stated that counsel is

not required to advise a defendant of the collateral consequences of pleading

guilty, such as the revocation of probation or parole. See PCRA Ct. Op. at 3

(citing, inter alia, Commonwealth v. Barndt, 74 A.3d 185, 193 (Pa. Super.

2013)). The PCRA court explained that a plea counsel could be ineffective if

-4- J-S20004-21

counsel provided erroneous or misleading advice to a client about any of the

collateral consequences of a guilty plea. See id. at 3-4 (citing Barndt, 74

A.3d at 196). For these reasons, we affirm on the basis of the PCRA court

opinion which properly concluded that plea counsel did not advise Appellant

about any of the collateral consequences of his guilty plea; therefore, plea

counsel was not ineffective and Appellant has not shown that his guilty plea

was involuntary or unknowing. See id. at 4-5; cf. Barndt, 74 A.3d at 196,

201.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 08/16/2021

-5- Circulated 07/29/2021 01:42 PM