J-S06027-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                         Appellee

                    v.

ANTHONY MICHAEL BISAZZA

                         Appellant                    No. 1284 MDA 2015


                Appeal from the Order Entered July 15, 2015
             In the Court of Common Pleas of Lancaster County
            Criminal Division at No(s): CP-36-CR-0001046-2013

BEFORE: PANELLA, J., MUNDY, J., and STEVENS, P.J.E.*

MEMORANDUM BY MUNDY, J.:                         FILED FEBRUARY 17, 2016

      Appellant, Anthony Michael Bisazza, appeals from the July 15, 2015

order denying his first petition for relief filed pursuant to the Post Conviction

Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546.         After careful review, we

affirm.

      The PCRA court summarized the procedural history of this case as

follows.

                  On March 15, 2013, the Commonwealth filed
            Criminal Information No. 1046-2013, which charged
            [Appellant] with four counts: Count 1, Burglary (F1);
            Count 2, Criminal Conspiracy (Burglary) (F1); Count
            3, Theft by Unlawful Taking (F2); and Count 4,
            Person Not to Possess a Firearm (F2).1 [At the time
            of his arrest in this case, Appellant was on parole in
            an unrelated case. As a result, the Pennsylvania
            Board of Probation and Parole lodged a detainer
            against Appellant based on the new charges.]



*Former Justice specially assigned to the Superior Court.
J-S06027-16


                On November 6, 2013, [Appellant] appeared
          before the Honorable Judge Louis J. Farina and
          entered a guilty plea to all four counts. Pursuant to
          a negotiated plea agreement, [Appellant] received a
          sentence of three to six years[’] incarceration in the
          State Correctional Institution on Count 1 (Burglary),
          three to six years[’] incarceration on Count 2
          (Criminal Conspiracy – Burglary) to run concurrently
          with Count 1, four to eight years[’] incarceration on
          Count 3 (Theft by Unlawful Taking) to run
          consecutive to Counts 1 and 2, and five to ten
          years[’] incarceration on Count 4 (Person Not to
          Possess a Firearm) to run concurrently with all other
          counts. The aggregate sentence was 7 to 14 years
          of incarceration.

                On December 1, 2014, [Appellant] filed a pro
          se PCRA Motion. Thereafter, on December 2, 2014,
          [the PCRA] [c]ourt appointed Vincent J. Quinn,
          Esquire, as counsel to represent [Appellant] in his
          PCRA Motion. Counsel was granted 60 days to file
          an amended petition.

                On February 27, 2015, PCRA counsel filed an
          Amended PCRA Motion, requesting a hearing to
          address allegations that trial counsel rendered
          ineffective assistance of counsel such that no reliable
          adjudication of guilt or innocence could have taken
          place. More specifically, the Amended Motion alleged
          that trial counsel incorrectly advised [Appellant] the
          sentence on docket number 1046-2013 would run
          concurrently with any re-commitment [Appellant]
          would receive on his state parole violation setback,
          and [Appellant] pleaded guilty based on said
          representation.

                On May 13, 2015, the [PCRA] [c]ourt
          conducted an evidentiary hearing to address
          [Appellant’s] Amended PCRA Motion. … Thereafter,
          on July 15, 2015, the [PCRA] [c]ourt issued an
          opinion and order dismissing [Appellant’s] Amended
          PCRA Motion, finding that [Appellant] failed to meet
          his burden of proving that counsel was ineffective, or


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              that the alleged ineffectiveness caused him to enter
              into an unknowing or involuntary guilty plea.


              1
                 18 Pa. C.S.A. § 3502(a)(2); 18 Pa. C.S.A.
              § 903(a); 18 Pa. C.S.A. § 3921(a); and 18 Pa.
              C.S.A. § 6105(a)(1), respectively.

PCRA Court Opinion, 8/19/15, at 1-3 (citations and footnote omitted). On

July 24, 2015, Appellant filed a timely notice of appeal with this Court. 1

       On appeal, Appellant presents the following issue for our review.

              Whether the [PCRA] court erred in denying the
              [Appellant’s] amended PCRA [petition] when
              [Appellant] was denied his right to the effective
              assistance of counsel when his counsel failed to
              advise him that by operation of law his state parole
              recommitment      was   required   to   be    served
              consecutively to his aggregate sentence of seven to
              fourteen years[?]

Appellant’s Brief at 4.

       We review an appeal from the denial of PCRA relief according to the

following principles.

              Our standard of review of the denial of a PCRA
              petition is limited to examining whether the court’s
              rulings are supported by the evidence of record and
              free of legal error. This Court treats the findings of
              the PCRA court with deference if the record supports
              those findings. It is an appellant’s burden to
              persuade this Court that the PCRA court erred and
              that relief is due.


____________________________________________


1
  Appellant and the PCRA court have complied with Pennsylvania Rule of
Appellate Procedure 1925.



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Commonwealth v. Feliciano, 69 A.3d 1270, 1274-1275 (Pa. Super. 2013)

(citation omitted).

            [Our] scope of review is limited to the findings of the
            PCRA court and the evidence of record, viewed in the
            light most favorable to the prevailing party at the
            PCRA court level.      The PCRA court’s credibility
            determinations, when supported by the record, are
            binding on this Court. However, this Court applies a
            de novo standard of review to the PCRA court’s legal
            conclusions.

Commonwealth v. Medina, 92 A.3d 1210, 1214-1215 (Pa. Super. 2014)

(en banc) (internal quotation marks and citations omitted), appeal granted,

105 A.3d 658 (Pa. 2014). Further, in order to be eligible for PCRA relief, a

petitioner must plead and prove by a preponderance of the evidence that his

conviction or sentence arose from one or more of the errors listed at

Section 9543(a)(2) of the PCRA. 42 Pa.C.S.A. § 9543(a)(2). These errors

include ineffectiveness of counsel. Id. § 9543(a)(2)(ii). The issues raised in

a PCRA petition must be neither previously litigated nor waived.          Id.

§ 9543(a)(3).

      In his PCRA petition, Appellant alleges ineffective assistance of trial

counsel in his guilty plea proceeding.         When reviewing a claim of

ineffectiveness, we apply the following test, first articulated by our Supreme

Court in Commonwealth v. Pierce, 527 A.2d 973 (Pa. 1987).

            [C]ourts presume that counsel was effective, and
            place upon the appellant the burden of proving
            otherwise. Counsel cannot be found ineffective for
            failure to assert a baseless claim.


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                  To succeed on a claim that counsel was
           ineffective, Appellant must demonstrate that: (1) the
           claim is of arguable merit; (2) counsel had no
           reasonable strategic basis for his or her action or
           inaction; and (3) counsel’s ineffectiveness prejudiced
           him.

                                     …

                [T]o demonstrate prejudice, appellant must
           show there is a reasonable probability that, but for
           counsel’s error, the outcome of the proceeding would
           have been different.

Commonwealth v. Michaud, 70 A.3d 862, 867 (Pa. Super. 2013)

(citations and internal quotation marks omitted). “Failure to establish any

prong of the test will defeat an ineffectiveness claim.” Commonwealth v.

Birdsong, 24 A.3d 319, 329 (Pa. 2011).

                 The right to the constitutionally effective
           assistance of counsel extends to counsel’s role in
           guiding his client with regard to the consequences of
           entering into a guilty plea.

                 Allegations 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.

                  Thus, to establish prejudice, the defendant
           must show that there is a reasonable probability
           that, but for counsel's errors, he would not have
           pleaded guilty and would have insisted on going to
           trial. The reasonable probability test is not a


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              stringent one; it merely refers to a probability
              sufficient to undermine confidence in the outcome.

Commonwealth v. Barndt, 74 A.3d 185, 192 (Pa. Super. 2013) (citations

and internal quotation marks omitted).           “In determining whether a guilty

plea was entered knowingly and intelligently, a reviewing court must review

all   of   the    circumstances       surrounding   the   entry   of   that   plea.”

Commonwealth v. Allen, 732 A.2d 582, 587 (Pa. 1999).

       Here, Appellant claims that his counsel was ineffective for failing to

advise him that his sentence in this case would be consecutive to his state

parole violation recommitment.2 Appellant’s Brief at 12-13. Appellant does

not assert that trial counsel affirmatively advised him that his parole

recommitment and new sentence would be concurrent or that trial counsel

“promised a specific recommitment[ on the parole violation.]”           Id. at 13.

Nonetheless, Appellant contends that trial counsel’s silence as to whether

the parole recommitment and the new sentence would be concurrent,

combined with counsel’s request that Appellant receive credit for time served

from the date of Appellant’s arraignment in this case, February 11, 2013,

caused Appellant to “reasonably believe[] that the sentences would run

____________________________________________


2
  The Parole Board was statutorily required to run Appellant’s parole
revocation sentence consecutively to his sentence on the new charges. 61
Pa.C.S.A. § 6138; see also Walker v. Pa. Bd. of Prob. and Parole, 729
A.2d 634, 638 (Pa. Commw. Ct. 1999) (recognizing “the [Parole] Board may
not impose a parole violation sentence to run concurrently with a new
sentence for an offense committed while on parole[]”) (citation omitted).



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concurrently.”     Id.    Appellant argues that his plea was not knowing and

voluntary because he entered into it with the belief that the parole

recommitment would run concurrently with his new sentence. Id.

         This Court has held that the possibility of parole revocation in an

unrelated criminal case is a collateral consequence of a guilty plea. Barndt,

supra at 195 (citation omitted).        Because parole revocation is a collateral

consequence, it follows that the length of the resulting parole recommitment

and whether it runs consecutively to any new sentence are also collateral

consequences.       See id. at 198-199 (treating the length of the appellant’s

parole setback as a collateral consequence); see also 61 Pa.C.S.A. § 6138

(providing the Parole Board with the discretion to revoke parole and impose

recommitment). Accordingly, trial counsel’s failure to advise a defendant

of   a     collateral    consequence    of   his   plea   is   not   ineffectiveness.

Commonwealth v. Abraham, 62 A.3d 343, 353 (Pa. 2012); see also

Barndt, supra at 196, 201.             In contrast, trial counsel will be deemed

ineffective when he provides an erroneous affirmative representation of

either a direct or a collateral consequence of a plea. See Barndt, supra at

196.

         Here, Appellant’s claim fails to meet the first prong of the Pierce test

because it lacks arguable merit.        The PCRA court found that “trial counsel

was credible when testifying at the PCRA Hearing that he did not advise

[Appellant] the sentence [in this case] would run concurrently with his state


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parole violation setback.”    PCRA Court Opinion, 8/19/15, at 8.       The PCRA

court explained as follows.

            [T]here was absolutely no testimony or evidence
            presented at the PCRA [h]earing to establish that
            trial  counsel    affirmatively   misled  [Appellant]
            regarding a collateral consequence of his guilty plea,
            or that trial counsel informed [Appellant] any
            sentence he received on the new charges [] would
            run concurrently with the state parole violation
            setback.    Rather, trial counsel specifically denied
            ever making such a representation. Moreover, when
            asked whether trial counsel gave him such advice,
            [Appellant] replied “[h]e didn’t.” [Appellant] simply
            stated “I assumed…[.]”

Id. (citations omitted). Further, the PCRA court also found Appellant’s claim

that trial counsel affirmatively gave him misleading advice was not credible

for the following reasons.

            [T]he [PCRA] [c]ourt cannot accept [Appellant’s]
            assertion that trial counsel’s request for credit on the
            new charges from the date of arraignment led to the
            understanding or promise that the issue of
            concurrency between a parole re-commitment and
            the new sentence was ‘taken care of.” At no point
            did trial counsel request, nor did the [trial] [c]ourt
            reference time credit as it would relate to
            [Appellant’s] potential state parole violation setback.
            [Appellant’s] erroneous assumption cannot be
            transmuted to constitute faulty legal advice by trial
            counsel.




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Id.   The record supports the PCRA court’s credibility determinations, and

they are binding on this Court.3 See Medina, supra.

       Further, Appellant’s argument on appeal admits that trial counsel did

not make any affirmative representation that his parole violation sentence

would be concurrent.          Appellant’s Brief at 12-13.         Instead, Appellant

contends that trial counsel’s failure to advise him that the parole

recommitment would be consecutive, combined with counsel’s request for

time served, led him to believe that the parole recommitment would be

concurrent. Id. at 13. This is an argument that trial counsel did not advise

Appellant of a collateral consequence of his plea. However, trial counsel had

no obligation to advise Appellant of any collateral consequence of his plea,

and such an omission cannot form the basis of an ineffectiveness claim. See

Abraham, supra; Barndt, supra.                 Therefore, Appellant’s ineffectiveness

claim does not warrant relief because it lacks arguable merit. See Michaud,

supra; Birdsong, supra.
____________________________________________


3
  We note that during the oral guilty plea colloquy, Appellant indicated that
no promises outside of the sentence in the negotiated plea agreement in the
current case were made to him to induce his plea. N.T., 7/15/15, at 9.
Moreover, on the written guilty plea colloquy form, Appellant acknowledged
that any sentence in this case could be consecutive to any other sentence he
was serving. Guilty Plea Colloquy and Post-Sentence Rights, 11/6/13, at 5,
¶ 47. Appellant also recognized that if the guilty plea resulted in a violation
of any probation or parole, it could be revoked, and he could be subject to a
new sentence for the violation. Id. at 5, ¶ 48. Further, at the PCRA
hearing, Appellant testified that trial counsel did not make any statements
that his parole recommitment would run concurrently with his sentence in
this case. N.T., 5/13/15, at 6.



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     Based on the foregoing, we conclude that the PCRA court’s denial of

Appellant’s PCRA petition is supported by the record and free of legal error.

See Medina, supra; Feliciano, supra. Accordingly, the PCRA court’s July

15, 2015 order is affirmed.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/17/2016




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