J-S14037-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellee

                    v.

BRENTON ALBERT DIEHL,

                         Appellant                   No. 1436 MDA 2015


                    Appeal from the Order July 24, 2015
               In the Court of Common Pleas of Berks County
            Criminal Division at No(s): CP-06-CR-0004728-2013

BEFORE: FORD ELLIOTT, P.J.E., PANELLA, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                  FILED FEBRUARY 17, 2016

      This is an appeal from the order entered in the Court of Common Pleas

of Berks County dismissing Appellant’s first petition filed under the Post

Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546.           Appellant

contends the PCRA court erred in denying his petition without an evidentiary

hearing. We affirm.

      The relevant facts and procedural history are as follows: On March 3,

2014, Appellant, who was represented by counsel, entered a negotiated

guilty plea to the charge of possession with the intent to deliver a controlled

substance (“PWID”) (marijuana) and the summary offense of purchase,




*Former Justice specially assigned to the Superior Court.
J-S14037-16


consumption, possession of liquor or malt or brewed beverages.1            At the

guilty plea colloquy, Appellant admitted that, on April 11, 2013, when he

was nineteen years old, the police stopped his vehicle and discovered therein

a malt or brewed beverage and marijuana, which Appellant possessed with

the intent to deliver. N.T. Guilty Plea, 3/3/14, at 5. In accordance with the

negotiated plea agreement, the trial court sentenced Appellant to three

years of probation for PWID and a $100.00 fine for the summary offense of

possession of a malt or brewed beverage. Thereafter, as a consequence of

his guilty plea, the Pennsylvania Department of Transportation suspended

Appellant’s driver’s license.

       Despite being provided with notice of his post-sentence and appellate

rights, Appellant filed neither post-sentence motions nor a direct appeal.

However, on February 26, 2015, Appellant filed a timely counseled PCRA

petition averring the ineffective assistance of guilty plea counsel resulting in

the entry of an involuntary guilty plea. Appellant specifically averred guilty

plea counsel was ineffective (1) in failing to discuss the possibility of filing a

pretrial motion; (2) in failing to file pretrial motions; (3) in failing to

communicate adequately with Appellant for purposes of discussing the

____________________________________________


1
  35 P.S. § 780-113(a)(3) and 18 Pa.C.S.A. § 6308(a), respectively. In
exchange for Appellant’s guilty plea, the Commonwealth withdrew charges of
possession of a controlled substance, 35 P.S. § 780-113(a)(31), possession
of drug paraphernalia, 35 P.S. § 780-113(a)(32), and exhaust systems,
mufflers, or noise controls, 75 Pa.C.S.A. § 4523(d).



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process of the case and the full range of options available to Appellant,

including but not limited to his right to testify and argue “personal use” of

the marijuana as opposed to “intent to deliver;” and (4) in failing to advise

Appellant that his driver’s license would be suspended as a result of his

entry of a guilty plea.     Appellant contended that, due to this alleged

ineffectiveness, he did not understand his options at the time of the guilty

plea colloquy and, as a result thereof, he entered an involuntary guilty plea

without the benefit of adequate consultation and advice.

      On May 29, 2015, the PCRA court provided Appellant with notice of its

intent to dismiss the petition without a hearing pursuant to Pennsylvania

Rule of Criminal Procedure 907. Appellant filed a counseled response to the

court’s Pa.R.Crim.P. 907 notice.    Specifically, Appellant alleged that guilty

plea counsel met with him on February 14, 2014, and advised him that a

plea offer might be made by the Commonwealth. Thereafter, on March 3,

2014, Appellant “briefly” met with guilty plea counsel, who advised Appellant

that the Commonwealth, in fact, made an offer of three years probation and

a $100.00 fine in exchange for Appellant pleading guilty to the two offenses

indicated supra. Appellant’s Response filed 6/23/15 at 3. Appellant averred

guilty plea counsel indicated there was “not much else he could do,” that if

Appellant went to trial it would be “his word against that of Officer Borz[,]”

and, if convicted, Appellant would face the likelihood of serving jail time. Id.

at 4. However, Appellant emphasized that “[a]t no time either prior to or


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during this short conversation did [guilty plea counsel] ever discuss the filing

of pretrial motions or whether there was any legal basis for doing so with

[Appellant].” Id. (underline omitted).

      Moreover, Appellant emphasized that “[a]lthough [he] was advised

that his license would be suspended, he was not made aware of that until

just immediately prior to the entry of the plea, with no time given for him to

consider the consequences thereof.” Id. at 4-5. Also, Appellant averred he

was not advised of the length of the suspension.        Appellant argued that

guilty plea counsel’s lack of communication, including failing to discuss the

possibility of filing pretrial motions, discussing the full range of options

available to Appellant if he proceeded to trial (including his right to testify

and argue the marijuana was possessed for personal use), failing to advise

him timely that his driver’s license would be suspended, and failing to advise

him of the length of the suspension, caused Appellant to enter an

involuntary guilty plea.

      By order entered on July 24, 2015, the PCRA court dismissed

Appellant’s PCRA petition without a hearing, and Appellant filed a timely

notice of appeal. All Pa.R.A.P. 1925 requirements have been met.

      Appellant presents the sole issue for this Court’s review:

      [Did] [t]he trial court err[ ] in dismissing the Appellant’s First
      Petition for Relief under the Post Conviction Relief Act without
      first holding an evidentiary hearing and making findings of fact
      and conclusions of law based upon the evidence adduced and a
      determination of the credibility of each witness to be
      presented[?]

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Appellant’s Brief at 9.

      Our standard of review for an order denying post-conviction relief is

whether the record supports the PCRA court’s determination and whether

the PCRA court’s determination is free from error.       Commonwealth v.

Franklin, 990 A.2d 795, 797 (Pa.Super. 2010). The PCRA court’s findings

will not be disturbed unless there is no support for the findings in the

certified record. Id.

      “[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 frivolous and has no support

either in the record or other evidence.”    Commonwealth v. Walls, 993

A.2d 289, 295 (Pa.Super. 2010) (citations omitted). In other words, a judge

may dismiss a PCRA petition without a hearing if the petition is patently

frivolous and without support in the record, or if the facts alleged therein

would not, even if proven, entitle the defendant to relief. Pa.R.Crim.P. 907;

Walls, supra.

      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.

Walls, 993 A.2d at 295 (citation and quotations omitted).




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      In the case sub judice, Appellant’s PCRA claims allege the ineffective

assistance of guilty plea counsel.

             To prevail on a claim alleging counsel's ineffectiveness
      under the PCRA, Appellant must demonstrate (1) that the
      underlying claim is of arguable merit; (2) that counsel's course
      of conduct was without a reasonable basis designed to effectuate
      his client's interest; and (3) that he was prejudiced by counsel's
      ineffectiveness, i.e. there is a reasonable probability that but for
      the act or omission in question the outcome of the proceedings
      would have been different.
             It is clear that a criminal defendant's right to effective
      counsel extends to the plea process, as well as during trial.
      However, [a]llegations of ineffectiveness in connection with the
      entry of a guilty plea will serve as a basis for relief only if the
      ineffectiveness caused the defendant to enter an involuntary or
      unknowing plea. Where the defendant enters his plea on the
      advice of counsel, the voluntariness of the plea depends on
      whether counsel's advice was within the range of competence
      demanded of attorneys in criminal cases.
             [T]he law does not require that [the defendant] be pleased
      with the outcome of his decision to enter a plea of guilty: All that
      is required is that [his] decision to plead guilty be knowingly,
      voluntarily, and intelligently made.

Commonwealth v. Willis, 68 A.3d 997, 1001-02 (Pa.Super. 2013)

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

(internal quotation and quotation marks omitted).

      In explaining the reasons it dismissed Appellant’s PCRA petition

without holding an evidentiary hearing, the PCRA court indicated, in relevant

part, the following:

           All of the claims raised by [Appellant] involve allegations
      concerning the effectiveness of plea counsel, and whether
      counsel’s alleged ineffectiveness caused [Appellant] to enter an
      unknowing, unintelligent, involuntary plea.
                                     ***


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              To be valid, a guilty plea must be knowingly, voluntarily,
       and intelligently entered. A court accepting [an appellant’s]
       guilty plea is required to conduct an on-the-record inquiry during
       the plea colloquy. The colloquy must inquire into the following
       areas:
              (1) Does the defendant understand the nature of
                    the charges to which he is pleading guilty?
              (2) Is there a factual basis for the plea?
              (3) Does the defendant understand that he has a
                    right to trial by jury?
              (4) Does the defendant understand that he is
                    presumed innocent until he is found guilty?
              (5) Is the defendant aware of the permissible
                    range of sentences and/or fines for the
                    offenses charged?
              (6) Is the defendant aware that the judge is not
                    bound by the terms of any plea agreement
                    tendered unless the judge accepts such
                    agreement?
       Moreover, Pennsylvania law presumes that [an appellant] who
       enters a guilty plea was aware of what he was doing. The
       [appellant] bears the burden of proving otherwise.
                                         ***
              Here, the record reflects that [Appellant] was advised of
       the nature of the charges to which he was pleading guilty, the
       factual basis for the plea, and his right to a jury trial.
       [Appellant] was also informed of the presumption of innocence
       and the maximum permissible penalties.[2] The record further
       reflects that [Appellant] stated that he was satisfied with the
       services of his attorney.        In addition, [Appellant] signed a
       Statement Accompanying Defendant’s Request to Enter a Guilty
       Plea, which was incorporated into the record. That document
       establishes that [Appellant] was advised that as a result of this
       conviction, his driver’s license would be suspended for six
       months.

PCRA Court Order and Opinion, filed 5/28/2015, at 4-5 (quotation marks,

quotations, and citations omitted) (footnote added).
____________________________________________


2
  During the guilty plea colloquy, Appellant was also informed that the trial
judge need not accept the plea agreement. N.T. Guilty Plea, 3/3/14, at 4.



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       Moreover, during the guilty plea colloquy, in reference to the signed

Statement Accompanying Defendant’s Request to Enter a Guilty Plea, which

contained notice that Appellant’s driver’s license would be suspended for six

months, the assistant district attorney asked Appellant whether, in light of

his answers contained therein, it was still his intent to plead guilty and be

sentenced in accordance with the plea agreement. N.T. Guilty Plea, 3/3/14,

at 5. Appellant answered affirmatively. Id.

       Additionally, as it relates to Appellant’s claim that counsel failed to

advise him as to the filing of potential pretrial motions, as well as his various

rights at trial, the record shows that Appellant was aware of these rights and

made a knowing and voluntary waiver thereof. Specifically, during the guilty

plea hearing, the following relevant exchange occurred between Appellant

and the assistant district attorney:

       [Assistant District Attorney]: Do you understand that you
       have the right to file various pretrial motions including a writ of
       habeas corpus and a motion to suppress evidence?
       [Appellant]: Yes.
       [Assistant District Attorney]: Do you understand that if you
       plead guilty, you give up your pretrial and trial rights?
       [Appellant]: Yes.

N.T. Guilty Plea, 3/3/14, at 3 (bold added).3

____________________________________________


3
  Moreover, the signed Statement Accompanying Defendant’s Request to
Enter a Guilty Plea contained the following sentence: “I understand that by
pleading guilty I am giving up my right to file pre-trial motions, including but
not limited to a motion for a writ of habeas corpus to dismiss the charges,
and a motion for suppression of evidence.” The document additionally listed
(Footnote Continued Next Page)


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         As the PCRA court noted in its opinion, “[t]he longstanding rule of

Pennsylvania law is that a[n appellant] may not challenge a guilty plea by

claiming that he lied under oath, even if he asserts that counsel induced the

lies.”     PCRA Court Order and Opinion, filed 5/28/2015, at 6 (citing

Commonwealth v. Pollard, 832 A.2d 517, 523 (Pa.Super. 2003)). Here,

the oral colloquy and signed written document demonstrate that Appellant

understood what the plea connoted and its consequences, and Appellant has

not established the plea was involuntary.                Appellant is bound by the

statements he made during his guilty plea proceedings, and he may not now

assert grounds for withdrawing the plea which contradict the statements.

Willis, 68 A.3d at 1009.

         For all of the foregoing reasons, based on the certified record, we

conclude     the   PCRA      court    did    not   err   in   determining   Appellant’s

ineffectiveness claims were meritless and there were no genuine issues of

material fact in controversy.           Thus, the PCRA court did not abuse its

discretion in dismissing Appellant’s PCRA petition without conducting an

evidentiary hearing.        Commonwealth v. Clemmons, 505 Pa. 356, 479

A.2d 955, 957 (1984) (“Where it is clear that allegations of ineffectiveness of

counsel are baseless or meritless[,] then an evidentiary hearing is

                       _______________________
(Footnote Continued)

various trial rights, which Appellant acknowledged he was “giving up” by
pleading guilty.



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unnecessary     and   the   unfounded   allegations   should   be   rejected   and

dismissed.”).

     Affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/17/2016




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