J-A02028-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

GREG ALAN GIBBS, SR. 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 379 WDA 2020

Appeal from the PCRA Order Entered February 24, 2020

In the Court of Common Pleas of Bedford County Criminal Division at 

No(s): CP-05-CR-0000008-2009

BEFORE: BOWES, J., NICHOLS, J., and McLAUGHLIN, J.

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

Appellant, Greg Alan Gibbs, Sr., appeals from the order denying his 

timely first Post Conviction Relief Act1 (PCRA) petition. Appellant asserts that 

trial counsel was ineffective by not advising him of the possibility of entering 

a guilty plea and by not seeking a plea offer from the Commonwealth. We 

affirm. 

A previous panel of this Court summarized the procedural history of this 

case as follows:

In August of 2007, the Commonwealth arrested and charged 

Appellant with [rape of a child and related offenses] for his illegal 

sexual contact with his two biological children and his 

stepdaughter. The Commonwealth subsequently filed a bill of 

particulars setting forth three specific ranges of dates when the 

contact occurred, covering a total of eight consecutive months 

____________________________________________

1 42 Pa.C.S. §§ 9541-9546.
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from August 2004 through March 2005. After the jury returned a 

guilty verdict on all charges:

the trial court imposed statutory maximum sentences on six 

counts of rape, running them consecutively to form an 

aggregate sentence of 120 to 240 years’ incarceration. In 

addition, the court later determined that Appellant was a 

Sexually Violent Predator under Megan’s Law, 42 Pa.C.S.[]

§§ 9791-9799.9. Post sentence motions were subsequently 

denied, and Appellant filed [a] timely notice of appeal.

* * *

This Court affirmed in all respects addressed with the exception of 

the discretionary aspects of sentencing because the trial court had 

failed to demonstrate that it was knowingly departing from all 

guidelines available to it.

* * *

Following remand, on January 11, 2012, the [trial] court resentenced Appellant to an aggregate term of incarceration of not 

less than 217 nor more than 467 years. . . . 

Appellant filed post-sentence motions arguing merger of some of 

the counts, improper mandatory sentencing, and abuse of 

discretion. On May 23, 2012, the [trial] court granted the motion 

to the extent that some of the counts merged for sentencing 

purposes and amended the sentence to an aggregate term of no 

less than 137 nor more than 307 years’ incarceration.

Commonwealth v. Gibbs, 959 WDA 2012, 2013 WL 11260383, at *1 (Pa. 

Super. filed July 22, 2013) (unpublished mem.) (citations and footnotes 

omitted, and some formatting altered), appeal denied, 86 A.3d 232 (Pa. 

2014). This Court affirmed Appellant’s judgment of sentence on July 22, 

2013, and our Supreme Court declined further review on February 28, 2014. 

Id. 

Appellant filed a timely pro se PCRA petition on September 23, 2014. 

The PCRA court appointed counsel for Appellant, and PCRA counsel filed 
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several amended PCRA petitions. Appellant raised several claims of ineffective 

assistance of trial counsel including: (1) failure to explain to Appellant that a 

guilty plea would be limited to certain charges rather than all of the charges; 

(2) failure to explain to Appellant the maximum possible sentence if all 

sentences were imposed consecutively; and (3) failure to enter into plea 

negotiations with the Commonwealth. Third Am. PCRA Pet., 6/25/19, at 3-4, 

6-7 (unpaginated). 

The PCRA court held evidentiary hearings on April 26, 2019, and July 

17, 2019, at which trial counsel and Appellant testified. Trial counsel testified 

that he met with Appellant numerous times before trial. N.T., 4/26/19, at 11. 

When asked if he told Appellant that Appellant was facing the possibility of 

spending the rest of his life in prison, trial counsel replied that he did not recall 

putting it in those terms, he stated, “I know I would have gone over the 

maximum[ sentences] and the ranges given his prior record . . . and that if 

the judge ran [the sentences] consecutive[ly] he could be looking at in excess 

of a hundred years.” Id. at 58. Trial counsel recalled Appellant “was pretty 

adamant he didn’t do this. He was innocent.” Id. at 12. 

Trial counsel testified that he did not recall, and his case notes did not 

reflect, that the Commonwealth made any plea offers, written or oral. Id. at 

13, 51. According to trial counsel, at the time of Appellant’s trial, it was the 

standard practice of the Bedford County District Attorney’s Office to extend 

plea offers by letter. Id. at 50-51. Trial counsel explained if he had received 

a written plea offer, he would have made a copy for Appellant and discussed
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it with Appellant at one of their meetings. Id. at 29, 40-41, 51, 59. Further,

trial counsel stated that he did not request a plea offer from the 

Commonwealth because Appellant insisted that he was innocent. Id. at 13-

14, 51, 58. For the same reason, trial counsel said he did not discuss what 

charges Appellant might consider pleading guilty to as part of a plea bargain. 

Id. at 44. 

Appellant testified that trial counsel met with him between ten and 

fifteen times before trial and that each of these meetings lasted between 

ninety minutes and two hours. N.T., 7/17/19, at 24-25. Appellant stated that 

trial counsel did not explain the concepts of consecutive sentences versus 

concurrent sentences or the maximum possible sentence he could receive if 

convicted. Id. at 14-15. 

Appellant testified he did not receive an official plea offer from the 

Commonwealth. Id. at 10. Appellant noted that he maintained his innocence 

throughout trial, and he continued to profess his innocence at the PCRA 

hearing. Id. at 11. Appellant admitted that he did not tell trial counsel that 

he was interested in considering a potential plea offer and he did not instruct 

trial counsel to pursue a plea offer. Id. at 11-13. However, Appellant testified 

that if a plea offer was presented to him, he would “most likely” consider it, 

but the offer would have had to drop some of the charges he was facing and 

include a sentencing recommendation that would include the possibility of him 

being paroled in his lifetime. Id. at 13-14. Appellant conceded that he did 

not tell trial counsel that he would have accepted a plea offer that met these 
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conditions. Id. Appellant did not call any other witness or present any other 

evidence regarding what the Commonwealth would have included in a plea 

offer if Appellant had requested one or if the Commonwealth would have 

extended a plea offer at all. 

On February 24, 2020, the PCRA court denied Appellant’s petition. 

Appellant filed a timely notice of appeal on March 9, 2020. The PCRA court 

did not order Appellant to comply with Pa.R.A.P. 1925(b), but filed a Pa.R.A.P. 

1925(a) opinion on July 20, 2020. 

Appellant raises the following issues on appeal:

1. Whether or not the [PCRA c]ourt erred or misapplied the law 

when it found that trial counsel was not ineffective where trial 

counsel did not discuss the plea and trial process with the 

[Appellant], including important matters such as explaining the 

difference between consecutive and concurrent sentences, 

minimum and maximum sentences, open and closed pleas, and 

reducing the number of charges?

2. Whether or not the [PCRA c]ourt erred when it found that trial 

counsel is not or should not be obligated under Pennsylvania 

law to request a plea offer from the Commonwealth so that the 

[Appellant] can weigh all available options prior to proceeding 

to trial?

Appellant’s Brief at 6 (some formatting altered).

We summarize Appellant’s arguments together as they are closely 

related. Appellant argues that his trial counsel was ineffective because he (1)

did not discuss the possibility of a plea bargain with Appellant, (2) did not 

discuss the maximum possible sentence Appellant was facing if he was found 
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guilty at trial, and (3) did not request a plea offer from the Commonwealth. 

Id. at 21-30, 35-38. 

Initially, Appellant concedes that there is no constitutional right to be 

offered a plea bargain. Id. at 37. However, Appellant contends that an 

attorney can be ineffective by not explaining the plea process to a defendant, 

especially where the defendant can expect leniency based on a plea. Id. at 

23-24, 33 (citing United States v. Booth, 432 F.3d 542 (3rd Cir. 2005)). 

Appellant further asserts that an attorney is ineffective when he fails to inform 

his client of the correct maximum possible sentence if found guilty at trial. 

Id. at 25-26, 34 (citing United States v. Day, 969 F.2d 39, 44 (3rd Cir. 

1992)). Appellant claims that in the instant case, his trial counsel was 

ineffective because he failed to explain to him that the trial court could impose 

sentences concurrently or consecutively and that some of the charges against 

him could be dismissed as part of plea agreement. Id. at 26-30. Appellant 

requests that we “find that under Pennsylvania law defense counsel has an 

obligation to request a plea offer from the Commonwealth and failure to do so 

may constitute ineffective assistance of counsel.” Id. at 38. 

As to prejudice, Appellant argues that trial counsel’s ineffectiveness

prevented him from making a knowing, intelligent, and voluntary decision 

about whether to proceed to trial instead of entering a plea. Id. at 26-30, 34-

38. Appellant contends that he suffered prejudice because he was sentenced 

to a term of 137 to 307 years’ incarceration, an effective life sentence, 
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following trial, when a plea bargain could have included a sentence where he 

would be paroled in his lifetime. Id. at 36-38. 

The Commonwealth responds that Appellant has not established any of 

the prongs of an ineffective assistance of counsel claim. Commonwealth’s 

Brief at 16, 18. The Commonwealth contends because “there is no 

constitutional requirement that defense counsel ask the prosecution to extend 

a plea offer[,]” Appellant’s claim lacks arguable merit. Id. at 18. Further, the 

Commonwealth asserts “[t]rial counsel is not required to seek a plea 

agreement, especially where his client professes his innocence.” Id. at 17 

(citing United States ex. rel. Tillman v. Alldredge, 350 F.Supp. 189, 195-

96 (E.D. Pa. 1972); Poindexter v. Rader, 2011 WL 1193022, at *9 (E.D. La. 

filed Mar. 14, 2011); Lerma-Castillo v. United States, 2009 WL 2914235, 

at *6 (W.D. Tex. filed Sept. 8, 2009)). The Commonwealth emphasizes that 

it did not make a plea offer. Id. at 12-14. Lastly, the Commonwealth argues 

that the PCRA court rejected Appellant’s testimony that trial counsel did not 

explain the maximum possible sentence he faced as incredible. Id. at 14-15 

(citing PCRA Ct. Op., 7/20/20, at 2). 

The Commonwealth further contends that Appellant “has not established 

how he was prejudiced by trial counsel’s thorough, diligent preparation for, 

and performance at, [Appellant’s] trial, . . .” Id. at 16. The Commonwealth 

argues that Appellant cannot establish prejudice as there is no evidence that 

a plea offer would have been made nor that Appellant would have accepted it. 

Id. at 18. 
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Our standard of review from the denial of a PCRA petition “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) (citation omitted). “The PCRA 

court’s credibility determinations, when supported by the record, are binding 

on this Court; however, we apply a de novo standard of review to the PCRA 

court’s legal conclusions.” Commonwealth v. Mitchell, 105 A.3d 1257, 

1265 (Pa. 2014) (citation omitted). 

We presume that the petitioner’s trial counsel was effective. 

Commonwealth v. Freeland, 106 A.3d 768, 775 (Pa. Super. 2014). To 

establish a claim of ineffective assistance of counsel, a petitioner “must show, 

by a preponderance of the evidence, ineffective assistance of counsel which, 

in the circumstances of the particular case, so undermined the truthdetermining process that no reliable adjudication of guilt or innocence could 

have taken place.” Commonwealth v. Turetsky, 925 A.2d 876, 880 (Pa. 

Super. 2007) (citations omitted). 

Generally, to be entitled to relief on a claim of ineffective assistance of 

counsel a petitioner must establish (1) that the underlying claim has arguable 

merit; (2) that counsel lacked a reasonable basis for his action or inaction; 

and (3) but for the act or omission in question, the outcome of the proceedings 

would have been different (i.e., petitioner was prejudiced). Commonwealth 
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v. Washington, 927 A.2d 586, 594 (Pa. 2007).2 “A claim of ineffectiveness 

may be denied by a showing that the petitioner’s evidence fails to meet any 

of these prongs.” Id. (citations omitted). 

“A criminal defendant has the right to effective counsel during a plea 

process as well as during a trial.” Commonwealth v. Kehr, 180 A.3d 754, 

760 (Pa. Super. 2018) (citation omitted); see also Lafler v. Cooper, 566 

U.S. 156, 162 (2012) (stating “[d]efendants have a Sixth Amendment right 

to counsel, a right that extends to the plea-bargaining process” (citations 

omitted)). 

However, “[t]he Commonwealth is never under any legal obligation to 

plea bargain with any defendant. Stated another way[,] a defendant has no 

constitutional right to a plea bargain arrangement. . . .” Commonwealth v. 

McElroy, 665 A.2d 813, 816 (Pa. Super. 1995) (citation omitted); accord 

Missouri v. Frye, 566 U.S. 134, 148-49 (2012) (“a defendant has no right to 

be offered a plea, nor a federal right that the judge accept it” (citations 

omitted)). 

This Court has explained:

In Lafler, . . . the Supreme Court of the United States elucidated 

the showing necessary to satisfy Strickland’s prejudice prong 

(the third prong of the Pierce test) in cases where counsel’s 

ineffectiveness causes a defendant to reject a plea offer.

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2 Pennsylvania’s three-part standard for assessing claims of counsel 

ineffectiveness adopted in Commonwealth v. Pierce, 527 A.2d 973 (Pa. 

1987) is materially identical to the two-part test set forth in Strickland v. 

Washington, 466 U.S. 668 (1984). Washington, 927 A.2d at 594 n.8.
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* * *

The Supreme Court concluded that Cooper’s counsel had been 

ineffective, and explained that a post-conviction petitioner seeking 

relief on the basis that ineffective assistance of counsel caused 

him or her to reject a guilty plea must demonstrate the following 

circumstance:

[B]ut for the ineffective advice of counsel there is a 

reasonable probability that the plea offer would have been 

presented to the court (i.e., that the defendant would have 

accepted the plea and the prosecution would not have 

withdrawn it in light of intervening circumstances), that the 

court would have accepted its terms, and that the conviction 

or sentence, or both, under the offer’s terms would have 

been less severe than under the judgment and sentence 

that in fact were imposed.

Commonwealth v. Steckley, 128 A.3d 826, 832 (Pa. Super. 2015) (quoting 

Lafler, 566 U.S. at 164). 

In Steckley, trial counsel failed to advise the defendant about an 

applicable twenty-five year mandatory minimum sentence. Id. at 830. The 

Commonwealth extended, and the defendant rejected, two plea offers: one 

for three to six years’ imprisonment and the other for two to six years’ 

imprisonment. Id. at 829. The defendant was found guilty at trial, and was 

sentenced to twenty-five to fifty years’ imprisonment. Id. At the PCRA 

hearing, Steckley’s trial counsel testified that she was unaware of the potential 

twenty-five year mandatory minimum sentence. Id. at 830. The PCRA court 

granted relief, and this Court, in relevant part, affirmed the PCRA court’s

conclusion that but for trial counsel’s ineffectiveness, defendant would have
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accepted the Commonwealth’s plea offer of two to six years.

3

 Id. at 830, 

834-36. 

Here, the PCRA court noted that “[t]estimony demonstrated that 

[Appellant] had had numerous meetings with his counsel to discuss the case, 

possible witnesses and areas of questioning, as well as the charges and their 

consequences.” PCRA Ct. Op. at 2. Accordingly, the PCRA court found that 

Appellant’s testimony that trial counsel did not explain the consequences of 

going to trial not credible. Id. 

Further, the PCRA court explained:

Finally, we were satisfied that [Appellant] failed to demonstrate 

that trial counsel was ineffective for not requesting or making a 

guilty plea offer. We found that the District Attorney never 

extended a plea offer to [Appellant]. Furthermore, there was no 

evidence that one would have been made if trial counsel had 

requested it. In addition, the evidence clearly established that 

trial counsel did not request or make a plea offer because 

[Appellant] adamantly maintained his innocence. We cannot find 

that [trial c]ounsel is obligated to craft or seek out plea offers 

under those circumstances unless affirmatively requested by the 

client.[fn5]

[fn5] We also note that [Appellant] never suggested to his 

counsel that he would be interested in a plea offer. We 

cannot find that the Sixth Amendment obligates counsel to 

pursue plea negotiations under the facts of this case. 

[Appellant] has not cited, nor did we find any controlling 

authority on the issue. However, we did find persuasive 

guidance in U.S. ex rel. Tillman v. Alldredge, 350 F.

Supp. 189, 195-96 (E.D. Pa. 1972).

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3 The Steckley Court reversed the PCRA court’s award of a new trial and 

remanded for the Commonwealth “to reoffer the plea proposal” in order to 

“neutralize the taint of the constitutional violation.” Steckley, 128 A.3d at 

837-38 (citations and footnote omitted, and formatting altered). 
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PCRA Ct. Op. at 4 (some footnotes omitted).

Having reviewed the record, the parties’ arguments, and the PCRA 

court’s opinion, we conclude that no relief is due. As to the arguable merit 

and reasonable basis elements of the Strickland/Pierce test, we cannot 

locate, nor has Appellant cited, any controlling authority. Specifically, none 

of the cases cited by Appellant hold that when the defendant maintains his 

innocence, counsel is ineffective for failing to consult with a client about 

initiating plea negotiations and requesting a plea offer from Commonwealth.4 

To the contrary, both the Commonwealth and the PCRA court have cited 

federal case law rejecting similar claims of ineffectiveness based on the failure 

to establish counsel’s deficient performance under the Strickland standard. 

See Tillman, 350 F. Supp. at 195-96; Poindexter, 2011 WL 1193022, at *9;

Lerma-Castillo, 2009 WL 2914235, at *6.

5

 We find these federal cases to 

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4 We note the federal court decisions Appellant has cited are distinguishable 

from this case on the facts as Booth involved deficient advice not to enter an 

open guilty plea, which would have reduced the guideline sentencing range

under the U.S. Sentencing Guidelines, after the defendant rejected a plea offer 

that required him to become a cooperating witness. See Booth, 432 F.3d at 

544-50. Day involved deficient advice regarding the maximum possible 

sentence, resulting in defendant rejecting a plea offer extended by the 

government. See Day, 969 F.2d at 44, 47. Moreover, to the extent Appellant 

cites Booth and Day to support his position that his awareness of the 

consequences of proceeding to trial was relevant, the record here supports 

the PCRA court’s factual findings that trial counsel advised Appellant of the 

consequences of going to trial. See Mitchell, 105 A.3d at 1265.

5

In Poindexter, the court held that “[g]iven Poindexter’s claims of innocence, 

counsel’s decision to proceed to trial rather than encourage a guilty plea was 

not advice below constitutional standards.” See Poindexter, 2011 WL 
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be persuasive in circumstances where the defendant adamantly maintains his 

innocence before trial, during trial, and through sentencing. See Arcelay, 

190 A.3d at 615 n.12. Therefore, we agree with the PCRA court that Appellant 

has not established his claim had arguable merit or that his counsel lacked a 

reasonable basis for his actions under Strickland/Pierce standard. 

As to prejudice, Appellant has failed to establish a reasonable probability 

that a plea offer would have been offered by the Commonwealth, the trial 

court would have accepted its terms, and that the conviction or sentence, or 

both, under the offer’s terms would have been less severe than under the 

judgment and sentence that in fact were imposed. See Steckley, 128 A.3d 

at 832. The record supports the PCRA court’s finding that the Commonwealth 

did not make a plea offer in this case. See PCRA Ct. Op. at 4. Furthermore, 

the record contains no evidence indicating that the Commonwealth would have 

made a plea offer if trial counsel had requested one. See McElroy, 665 A.2d 

at 816. Lastly, Appellant testified that he would have “most likely” considered 

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1193022, at *9. In Lerma-Castillo, the court stated that it “cannot and does 

not find [counsel’s] legal assistance deficient because he chose to try [the 

defendant’s] case rather than force her to plead guilty, given her unwavering 

claims of innocence.” See Lerma-Castillo, 2009 WL 2914235, at *6 (citation 

omitted). In Tillman, the court declined to find an attorney “who fails to 

explore the possibility of a plea bargain on behalf of a client who insists that 

he is innocent[]” ineffective. See Tillman 350 F. Supp. at 195-96. The 

decisions of the lower federal courts are not binding on this Court. See 

Commonwealth v. Tedford, 960 A.2d 1, 15 (Pa. 2008). However, such 

decisions “may be persuasive [authority].” Commonwealth v. Arcelay, 190 

A.3d 609, 615 n.12 (Pa. Super. 2018) (citation omitted). 
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a plea offer if one was presented to him, not that he definitely would have 

accepted a plea offer from the Commonwealth. See N.T., 7/17/19, at 13-14. 

Accordingly, Appellant has failed to establish a meritorious 

ineffectiveness claim under the Strickland/Pierce standard. For these 

reasons, we agree with the PCRA court that no relief is due and affirm the 

PCRA court’s denial of Appellant’s PCRA petition. See Ousley, 21 A.3d at 

1242. 

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 03/16/2021