Com. v. Rosa, A.

Opinion

J-S37029-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

ANGEL ROSA

Appellant No. 2080 MDA 2013

Appeal from the PCRA Order entered October 30, 2013 In the Court of Common Pleas of Lebanon County Criminal Division at No: CP-38-CR-0001564-2011

BEFORE: LAZARUS, STABILE, and MUSMANNO, JJ.

MEMORANDUM BY STABILE, J.: FILED AUGUST 20, 2014

Appellant, Angel Rosa, appeals from the October 30, 2013 order of the

Court of Common Pleas of Lebanon County dismissing his petition pursuant

to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-46.

Appellant argues the trial court erred in not finding plea counsel provided

ineffective assistance. We disagree. Accordingly, we affirm.

The trial court set forth the facts and the procedural history underlying

this appeal in its opinion, which we incorporate herein by reference. See

Trial Court Opinion, 10/30/13, at 1-8.

Appellant raises the following issues for our review:

1. [Appellant] was denied his constitutionally guaranteed right to effective representation when Plea Counsel unlawfully induced [Appellant] to plead guilty by advising him he would get a lesser sentence if he accepted the open plea proffered by the Commonwealth. J-S37029-14

2. Whether [Appellant] was denied his constitutionally guaranteed right to effective representation when Plea Counsel failed to investigate mitigating factors, such as the

mental illness?

In an appeal from a denial of post-conviction relief, our standard and

scope of review is as follows:

We review an order dismissing a petition under the PCRA in the light most favorable to the prevailing party at the PCRA level. This review is limited to the findings of the PCRA court and the if it is supported by evidence of record and is free of legal error.

the record supports it. Further, we grant great deference to the factual findings of the PCRA court and will not disturb those findings unless they have no support in the record. However, we afford no such deference to its legal conclusions. Where the petitioner raises questions of law, our standard of review is de novo and our scope of review plenary.

Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (internal

citations omitted).

The PCRA subsection governing relief from a guilty plea requires that

the defendant prove that he was unlawfully induced to plead guilty and that

he is innocent:

To be eligible for relief under this subchapter, the petitioner must plead and prove by a preponderance of the evidence all of the following: (2) That the conviction or sentence resulted from one or more of the following: (iii) A plea of guilty unlawfully induced where the circumstances make it likely that the inducement caused the petitioner to plead guilty and the petitioner is innocent.

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42 Pa.C.S.A. § 9543(a)(2)(iii).

counsel.

Counsel is presumed effective and will only be deemed

performance was deficient and he was prejudiced by that deficient performance. Prejudice is established if there is a result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.

To properly plead ineffective assistance of counsel, a petitioner must plead and prove: (1) that the underlying issue has

reasonable basis; and (3) actual prejudice resulted from

meet any elements of the above-cited test, his claim must fail.

Id. (quoting Commonwealth v. Burkett, 5 A.3d 1260, 1271-72 (Pa.

Super. 2010)); see also Commonwealth v. Lynch, 820 A.2d 728, 733

In his first issue, Appellant argues plea counsel was ineffective

because he led Appellant to believe he would get a lesser sentence if he

at 9.

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In its opinion

that plea counsel coerced him into accepting an open plea, discussed the

See Trial Court Opinion, 10/30/13, at 5-6, 10-11. As the trial court noted,

Appellant did not allege he is innocent. Id. at 10. Second, the court noted

this case, clearly indicates that [Appellant] was well aware of his options and

10/30/13, at 10, 11. The trial court finally noted that Appellant did not

rial court] did actually impose a sentence which

Id.

analysis and conclusions are correct, and we therefore affirm on this basis in 1

Next, Appellant argues plea counsel was ineffective because counsel

failed to properly investigate the case. Had he done so, counsel would have

discovered that he was under the influence at the time of the underlying

____________________________________________

1 To the extent Appellant now argues he wanted to proceed to trial, as opposed to taking a plea, Appellant provides no evidence in the record supporting this claim. Assuming it is not waived, the claim is nonetheless without merit because it is devoid of any support in the record.

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crimes and that he had a long history of mental illness

10.

The trial court noted that voluntary intoxication was not a defense

applicable in this matter. Trial Court Opinion, 10/30/13, at 12 (citing 18

Pa.C.S.A. § 308, relating to intoxication or drugged condition). The trial

court also noted Appellant himself, after hearing from his plea counsel what

was involved, decided he did not want to pursue the insanity defense. Id. at

12-13. The court also noted that the insanity defense would not have been

both his statements to his attorney and his

Id. at 13.2 Accordingly, the

trial court concluded plea counsel was not ineffective for failing to assert

Id. The trial cou

conclusions are correct, and we therefore affirm on this basis in rejecting

be attached to any future filings in this case.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary Date: 8/20/2014 ____________________________________________

2 See also 18 Pa.C.S.A. § 315 (relating to insanity).

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