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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

ANTHONY THOMAS

                            Appellant               No. 2838 EDA 2015


                Appeal from the PCRA Order September 4, 2015
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0011749-2009
                                          CP-51-CR-0013548-2009


BEFORE: FORD ELLIOTT, P.J.E., OLSON, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                            FILED JULY 06, 2016

        Appellant Anthony Thomas appeals from the order of the Court of

Common Pleas of Philadelphia County dismissing his petition filed pursuant

to the Post Conviction Relief Act, 42 Pa.C.S. §§ 9541-9546. We affirm.

        On December 22, 2009, Appellant pled guilty to two counts of robbery1

and two counts of burglary2 in connection with two separate attacks on

guests at a Marriott Hotel in Philadelphia. On September 8, 2010, the trial

court sentenced Appellant to four consecutive sentences of ten to twenty

years’ imprisonment, for an aggregate sentence of forty to eighty years’


____________________________________________


1
    18 Pa.C.S § 3701(a)(1)(ii).
2
    18 Pa.C.S § 3502(a)(1).
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imprisonment. This Court affirmed the judgment of sentence on August 2,

2012.

        On October 23, 2012, Appellant filed a timely pro se PCRA petition.

The PCRA court appointed counsel, who filed an amended petition on

February 7, 2014. On February 13, 2015, the Commonwealth filed a motion

to dismiss the PCRA petition. On August 7, 2015, the PCRA court issued

notice of its intent to dismiss the PCRA petition without a hearing pursuant

to Pennsylvania Rule of Criminal Procedure 907. On September 4, 2015, the

court dismissed the petition.

        On September 15, 2015, Appellant filed a timely notice of appeal.

Both Appellant and the trial court complied with Pennsylvania Rule of

Appellate Procedure 1925.

        Appellant raises the following question on appeal:

          I. Should [A]ppellant be allowed to withdraw his guilty plea
          in this case because the trial court failed to conduct the
          necessary colloquy to determine that [A]ppellant’s guilty
          plea was knowing intelligent, and voluntary because the
          trial court did not explain to [A]ppellant the elements of
          the crimes to which [A]ppellant was pleading guilty, did
          not inform [A]ppellant of the maximum punishments
          allowable, did not ask [A]ppellant if he was promised
          anything or threatened in any way to plead guilty,
          [A]ppellant was not asked about his medical or mental
          state at the time of the plea and was not asked by the trial
          court if he, [A]ppellant signed, read or understood the
          written guilty plea colloquy and because [Appellant] was
          completely denied counsel at the guilty plea hearing?

Appellant’s Brief at 2.




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      Our standard of review from the denial of post-conviction relief “is

limited to examining whether the PCRA court’s determination is supported by

the   evidence   of   record   and   whether   it    is   free   of   legal   error.”

Commonwealth v. Ousley, 21 A.3d 1238, 1242 (Pa.Super.2011) (citing

Commonwealth v. Morales, 701 A.2d 516, 520 (Pa.1997)).

      Appellant alleges the trial court erred because it failed to conduct a

proper colloquy prior to accepting Appellant’s guilty plea and alleges plea

counsel provided ineffective assistance of counsel at the guilty plea hearing.

      To be eligible for PCRA relief, a “petitioner must plead and prove by a

preponderance of the evidence” that the claims of error have not been

previously litigated or waived. 42 Pa.C.S. § 9543(a)(3); Commonwealth v.

Spotz, 18 A.3d 244, 259 (Pa.2011). An issue has been waived “if the

petitioner could have raised it but failed to do so before trial, at trial, on

appeal or in a prior state post[-]conviction proceeding.”             42 Pa.C.S. §

9544(b).   Appellant could have raised a claim that his guilty plea was

unknowing and involuntary, and that the trial court erred in connection with

the guilty plea, on direct appeal. Appellant, therefore, waived his trial court

error claim.

      Appellant also alleges an ineffective assistance of counsel claim in

connection with the guilty plea. This claim fails.

      For ineffective assistance of counsel claims, the petitioner must

establish: “(1) his underlying claim is of arguable merit; (2) counsel had no

reasonable basis for his action or inaction; and (3) the petitioner suffered

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actual    prejudice    as   a   result.”      Spotz, 84 A.3d   at   311    (quoting

Commonwealth v. Ali, 10 A.3d 282, 291 (Pa.2010)).                   To establish the

prejudice prong where an appellant has entered a guilty plea, “the appellant

must demonstrate ‘it is reasonably probable that, but for counsel’s errors, he

would     not   have    pleaded     guilty    and   would   have   gone       to   trial.’”

Commonwealth v. Timchak, 69 A.3d 765, 770 (Pa.Super.2013) (quoting

Commonwealth v. Rathfon, 899 A.2d 365, 370 (Pa.Super.2006)).

“[C]ounsel is presumed to be effective and the burden of demonstrating

ineffectiveness rests on appellant.”           Ousley, 21 A.3d at 1244 (quoting

Commonwealth v. Rivera, 10 A.3d 1276, 1279 (Pa.Super.2010)).                        “The

failure to prove any one of the three [ineffectiveness] prongs results in the

failure of petitioner’s claim.” Id. (quoting Rivera, 10 A.3d at 1279).

        Here, the PCRA court found the underlying claim lacked merit and

found Appellant failed to establish he suffered prejudice due to any alleged

ineffectiveness.

        “[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 (Pa.Super.2013)

(quoting Commonwealth v. Anderson, 995 A.2d 1184, 1192 (Pa.Super.

2010) (alterations in original)).          A guilty plea colloquy must “affirmatively

demonstrate the defendant understood what the plea connoted and its

consequences.” Id. at 1002 (quoting Commonwealth v. Lewis, 708 A.2d

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497, 501 (Pa.Super.1998)). After a defendant enters a guilty plea, “it is

presumed that he was aware of what he was doing, and the burden of

proving involuntariness is upon him.”       Id. (quoting Commonwealth v.

Bedell, 954 A.2d 1209, 1212 (Pa.Super.2008)). Under Pennsylvania Rule of

Criminal Procedure 590, the court should confirm, inter alia, that a

defendant understands: (1) the nature of the charges to which he is

pleading guilty; (2) the factual basis for the plea; (3) he is giving up his

right to trial by jury; (4) he is giving up his right to the presumption of

innocence; (5) the permissible ranges of sentences and fines possible; and

(6) the court is not bound by the terms of the agreement unless the court

accepts the plea.        Commonwealth v. Prendes, 97 A.3d 337, 352

(Pa.Super.2014) (citing     Commonwealth v. Watson, 835 A.2d 786

(Pa.Super.2003)).   “The reviewing Court will evaluate the adequacy of the

plea colloquy and the voluntariness of the resulting plea by examining the

totality of the circumstances surrounding the entry of that plea.” Id. (citing

Commonwealth        v.    Muhammad,      794 A.2d 378   (Pa.Super.2002)).

Further, “where the totality of the circumstances establishes that a

defendant was aware of the nature of the charges, the plea court’s failure to

delineate the elements of the crimes at the oral colloquy, standing alone, will

not   invalidate   an    otherwise   knowing   and    voluntary   guilty   plea.”

Commonwealth v. Morrison, 878 A.2d 102, 107 (Pa.Super.2005) (citing

Commonwealth v. Schultz, 477 A.2d 1328 (Pa.1984)).




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     As to the underlying claim that Appellant did not enter a knowing and

voluntary guilty plea, the PCRA court found:

        Contrary to [Appellant’s] claims, a written guilty plea
        colloquy describing all of the necessary factors was
        executed and signed by [Appellant] and [t]rial [c]ounsel on
        12/22/09. This written colloquy has various checks and
        circles that imply it was reviewed with [Appellant] at some
        point. [The trial] court also asked [Appellant] whether he
        had discussed the case with his attorney, whether
        [Appellant] was satisfied with his attorney, and if
        [Appellant] had resolved any questions for his attorney.
        N.T. 12/22/09, 4. [Appellant] responded affirmatively to
        each of these questions. [The trial c]ourt therefore had
        good reason to rely on the written colloquy. Additionally,
        [the trial c]ourt, in an abundance of caution, did ask a
        range of questions designed to gauge competence and the
        presence or absence of coercion. N.T. 12/22/09, 4-5. The
        Assistant District Attorney (“ADA”) then laid out the
        allegations in the Affidavits of Probable Cause, separating
        facts into the appropriate elements for each charge, and
        pausing to allow [Appellant] to plead guilty to each charge
        after the relevant factual background in those affidavits
        were read. The Affidavit of Probable Cause has been
        deemed a valid factual basis for accepting a guilty plea in
        Pennsylvania. [Commonwealth] v. Nelson, [317 A.2d
228, 229 (Pa.1974)].

        Having been informed that this conduct was the basis of
        the charges against him, [Appellant] tendered a guilty plea
        and thereby admitted that he had in fact committed the
        offense. [Commonwealth] v. Schultz, [477 A.2d 1328,
        1331 (Pa.1984)]. Standing alone, the written colloquy and
        on record colloquy each provide the quantum of
        information required for [Appellant] to understand the
        charges against him and their basis in both law and fact.
        [Appellant] has also [pled] guilty to [r]obbery in the past,
        so he must have had some pre-existing knowledge of the
        nature of the charges. While the on-record colloquy does
        not directly address statutory maximums (rather, it
        confirms that [t]rial [c]ounsel reviewed the information
        with the [Appellant]), “it is fatuous for appellant to suggest
        now that he was unaware of the nature of the charges

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           brought against him merely because the trial court failed
           to fully re-explain each and every element of the charges
           during his second colloquy. . . . Under the totality of the
           circumstances, it is clear that appellant was well aware of
           the nature of the charges to which he plead guilty.”
           [Commonwealth] v. Iseley, [615 A.2d 408, 416
           (Pa.Super.1992)].

1925(a) Opinion, 12/9/2015, at 5-6. The trial court’s determination that the

underlying claim lacked merit is supported by the record and free of legal

error.

         The trial court further found that Appellant failed to establish he

suffered prejudice due to any alleged ineffectiveness.       1925(a) Opinion,

12/9/2015, at 4.      This finding also is supported by the record and free of

legal error, as Appellant makes no showing that he would have pled not

guilty and proceeded to trial. See Commonwealth v. Timchak, 69 A.3d
765, 770 (Pa.Super.2013).3

         Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/6/2016
____________________________________________


3
  The PCRA court also found Appellant failed to establish counsel did not
have a reasonable basis for his failure to challenge the plea because counsel
was not expected to preserve a meritless claim.             1925(a) Opinion,
12/9/2015, at 6.



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