J - S02020 - 16

NON - PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENN SYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. TERRENCE VERNELL BROWN Appellant No. 1074 EDA 2015 Appeal from the PCRA Order April 1 , 2015 In the Court of Common Pleas of Delaware County Criminal Division at No(s): CP - 23 - CR - 0001238 - 2011 BEFORE: SHOGAN, J., LAZARUS, J., and STABILE, J. MEMORANDUM BY LAZARUS, J.: FILED FEBRUARY 17, 2016 Terrence Brown appeals pro se from the order entered in the Court of Common Pleas of Delaware County denying his petition filed under the Post Conviction Relief Act, (PCRA), 42 Pa.C.S.A. §§ 9541 - 9546.. Aft er our review, we affirm. The trial court set forth the facts of this case as follows: On January 2, 2011 officers from the City of Chester Police Department were dispatched to a residence on Edgemont Avenue after a report of a burglary in progress. Upon their arrival the officers heard screaming coming from inside the residence. The officers covered both entrances to the home and then entered. The Petitioner was apprehended in a second - floor bedroom. He was wearing a ski mask and a dark gray sweat suit . After a brief struggle he was taken into custody. His co defendant Fareem Nelson was found hiding under the bed in the same room. He was also arrested after a struggle and at that time he had a black ski mask in his pocket. The [v]ictim reported that he arrived at his home after basketball practice that evening and that as he put his key in theJ - S02020 - 16

- 2 -

front door lock three males armed with handguns and wearing dark clothes and ski masks forced him into his residence and demanded money and guns. They tied the [v]ictim up and threatened to kill him and took $500.00. He was assaulted and suffered head and facial injuries that were treated later at Crozer Chester Medical Center. Two Smith & Wesson handguns with obliterated serial numbers, rubber gloves and rest raints made of wire ties were recovered from the residence following the arrests. Trial Court Opinion, 5/28/15, at 2. Brown entered a negotiated guilty plea to charges of robbery, conspiracy to commit robbery and possessing an instrument of crime. 1 Purs uant to the plea agreement, various other charges were nol prossed and the Honorable James P. Bradley sentenced Brown to ten to twenty years’ imprisonment followed by five years of probation. On direct appeal, Brown challenged the validity of his guilty p lea. Brown claimed his attorney did not explain the ramifications with respect to other cases for which he was on probation or parole; he also claimed he was not colloquied by the court with respect to these ramifications. This Court affirmed, noting tha t the written guilty plea colloquy, which Brown acknowledged reviewing, specifically stated that pleading guilty to the crimes at issue could result in jail time for

____________________________________________ 1 The Commonwealth’s brief erroneously states that the “[i]ssues of voluntariness of colloquy and guilty plea to first degree murder and conspiracy were previously litigated on direct appeal, so as to preclude relief under [the PCRA]. 42 Pa.C.S.A. § 9543(a)(2,3) (emphasis ours). See Appellee’s Brief, at 7.J - S02020 - 16

- 3 -

any crimes for which Brown was on probation or parole. 2 Commonwealth v. Brown , 1564 EDA 2 012 (Pa. Super. filed December 4, 2013) (unpublished memorandum). The panel concluded that Brown was informed of the consequences of pleading guilty as it related to cases for which he was already under supervision, and thus his claim was devoid of merit. Brown filed a petition for allowance of appeal, which the Pennsylvania Supreme Court denied. Commonwealth v. Brown , 9 MAL 2014 (Pa. June 18, 2014). On July 14, 2014, Brown filed a PCRA petition, which was denied on April 2, 2015. This appeal followed. Brown raises the following issues for our review:

1. Whether the trial court erred in participating in the plea negotiation held January 23, 2012 before the Honorable James P. Bradley, and trial counsel was ineffective for his failure to object to the trial c ourt’s participation in the

____________________________________________ 2 Paragraph 20 of Brown’s written guilty plea colloquy st ates the following: If I was on probation or parole at the time the crimes to which I am pleading guilty or nolo contender were committed, my pleas in this case mean that I have violated my probation or parole and I can be sentenced to jail for that viola tion in addition to any sentences which I may receive as a result of these pleas. Guilty Plea Statement, 1/24/12, at ¶ 20. Brown’s initials appear on the line next to that paragraph and both he and his counsel signed and dated the written colloquy. The transcript of his oral colloquy reflects that Brown acknowledged reading and understanding the content of the written six page, 29 - paragraph guilty plea statement. N.T., Guilty Plea Colloquy, 1/24/12, at 21, 23 - 24.J - S02020 - 16

- 4 - guilty plea negotiation that he (petitioner) had previously rejected thus making the plea coerced, involuntary, and unknowingly entered? 2. Whether the trial court erred in its failure to make an on the - record determination concern ing the mandatory sentencing statute, 42 Pa.C.S.A. § 9714, if it was applicable, along with the court’s failure to establish written and oral notice to seek the mandatory sentence, and trial counsel’s ineffectiveness during the plea process and sentence ph ase? 3. Whether trial counsel was ineffective for failure to explain the advantages and disadvantages of accepting a plea of guilt, giving misinformation regarding the permissible range the petitioner was/is subjected to, abandoning his client all through th e post - sentence stage, and trial counsel failed to amend petitioner’s PCRA petition which resulted in trial court’s dismissal and ultimately deprived petitioner of his chance at relief? It is well - settled that “our review of a post - conviction court’s gran t or denial of relief is limited to determining whether the court’s findings are supported by the record and the court's order is otherwise free of legal error.” Commonwealth v. Gadsden , 832 A.2d 1082, 1085 (Pa. Super. 2003) ( citing Commonwealth v. Yager, 685 A.2d 1000, 1003 (Pa. Super. 1996) (en banc); Commonwealth v. Wilson , 824 A.2d 331, 333 (Pa. Super. 2003). To prevail on a petition for PCRA relief, a petitioner must plead and prove by a preponderance of the evidence that his conviction or sentence r esulted from one or more of the circumstances enumerated in 42J - S02020 - 16

- 5 -

Pa.C.S.A. § 9543(a)(2). 3 See Commonwealth v. Spotz , 18 A.3d 244, 259 (Pa. 2011). These circumstances include the ineffectiveness of counsel, which “so undermined the truth - determining process that no reliable adjudication of guilt or innocence could have taken place.” 42 Pa.C.S.A. § 9543(a)(2)(ii). Once a defend ant has entered a plea of guilty, it is presumed that he was aware of what he was doing, and the burden of proving involuntariness is upon him. Therefore, where the record clearly demonstrates that a guilty plea colloquy was conducted, during which it beca me evident that the defendant understood the nature of the charges against him, the voluntariness of the plea is established. See Commonwealth v. Pollard , 832 A.2d 517, 523 (Pa. Super. 2003) (“A person who elects to plead guilty is

____________________________________________ 3 (i) A violation of the Constitution o f this Commonwealth or the Constitution or laws of the United States which, in the circumstances of the particular case, so undermined the truth - determining process that no reliable adjudication of guilt or innocence could have taken place. (ii) Ineffect ive assistance of counsel which, in the circumstances of the particular case, so undermined the truth - determining process that no reliable adjudication of guilt or innocence could have taken place. (iii) A plea of guilty unlawfully induced where the circu mstances make it likely that the inducement caused the petitioner to plead guilty and the petitioner is innocent. (iv) The improper obstruction by government officials of the petitioner's right of appeal where a meritorious appealable issue existed and wa s properly preserved in the trial court. 42 Pa.C.S.A. § 9543(a)(2)(i - iv).J - S02020 - 16

- 6 -

bound by the statement s he makes in open court while under oath and he may not later assert grounds for withdrawing the plea which contradict the statements he made at his plea colloquy.”). Here, the oral and written guilty plea colloquies belie Brown’s claims. After our review of the parties’ briefs, the record, and the relevant law, we conclude that the trial court’s opinion properly disposes of Brown’s issues on appeal. See Trial Court O pinion, 5/28/15, at 5 - 11. 4 We rely upon Judge Bradley’s opinion to affirm the order denying PCRA relief, and we direct the parties to attach a copy of the opinion in the event of further proceedings. Order affirmed.

____________________________________________ 4 We note that this challenge to a negotiated guilty plea comes particularly close to a recasting of the theory of error on direct appeal and adding on an allegation of ineffectiveness. A PCRA petitioner cannot obtain review of claims that were previously litigated by presenting new theories of relief, including allegations of ineffectiveness, to relitigate previously litigated claims. See Commonwealth v. Bond , 819 A.2d 33, 39 (Pa. 2002); Commonwealth v. McCall , 786 A.2d 191, 195 - 96 (Pa. 2001); Commonwealt

h v. Copenhefer, 719 A.2d 242, 253 (Pa. 1998). See also Commonwealth v. Berry, 760 A.2d 1164 (Pa. Super. 2000) (petitioner cannot obtain review of claims previously litigated on direct appeal by alleging ineffective assistance of prior counsel and present ing new theories in support of these claims).J - S02020 - 16

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Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 2/17/20161 In addition to robbery, crimlnal conspiracy to commit robbery and possessing an instrument of crime the

petitioner was charged with inter a/Ja, aggravated assault (18 Pa.C.S.A. §2702), possessing a firearm without a license (18 Pa.C.S.A. § 6106t possessing a firea r m with altered manufacture's numbers (18 Pa.C.S:A. § 6110.2), burglary (18 Pa.C.S.A. § 3502), false imprisonment (18 Pa.C.S.A. § 2903), prohibited offensive weapons (18 Pa.C.S,A. § 908) and resisting arrest (18. P.S. § 5104). 1 

### sentenced in accordance with the terms of the identical negotiated plea. The facts that entered a negotiated guilty plea to the same terms on the same day and he was also sentence does not include a mandatory minimum. Petitioner's co-defendant Fareed Nelson twenty years of incarceration to be followed by five years of probation was imposed. This commit robbery and possessing an instrument of crime. Pursuant to a negotiated plea agreement the remaining charges were 

### no/le prossed 1 

### and an aggregate sentence of ten to On January 24, 2012 Petitioner, Terrence Brown, pied guilty to robbery, conspiracy to FILED: Bradley, J. 

### OPINION A. Sheldon Kovach, Esquire, on behalf of the Commonwealth Terrence Brown, prose

TERRENCE BROWN 

### vs . . CP-23-CR-1238-2011 COMMONWEALTH OF PENNSYLVANIA IN THE COURT OF COMMON PLEAS OF DELAWARE COUNTY, PENNSYLVANIA CRIMINAL DIVISION Circulated 01/21/2016 11:14 AM2



### found to be in violation of his state parole as a result of his plea in the matter that is before information regarding backtime that he would face on an earlier unrelated case if 

### he was negotiated guilty plea was entered involuntarily because the Trial Court failed to tnclude Petitioner pursued his right to a direct appeal. On appeal he claimed that his restraints made of wire ties were recovered from the residence following the arrests. Center. Two Smith & 

### Wesson handguns with obliterated serial numbers, rubber g l oves and and suffered head and facial injuries that were treated later at Crozer Chester Medical guns. They tied the Victim up and threatened to kill him and took $500.00. He was assaulted wearing dark clothes and ski masks forced him into his residence and demanded money and and that as he put his key in the front door lock three males armed with handguns and The Victim reported that he arrived at his home after basketball practice that evening black ski mask in his pocket. the bed in the same room. He was also arrested after a struggle and at that time he had a struggle he was taken into custody. His co-defendant Fareem Nelson was found hiding under second-floor bedroom; He was wearing a ski mask and a dark gray sweat suit. After a brief covered both entrances to the home and then entered. The Petitioner was apprehended in a their arrival the officers heard screaming coming from inside the residence. The officers dispatched to a residence on Edgemont Avenue after a report of a burglary ln 

### progress. Upon On January 2, 2011 officers from the City of Chester Police Department were attached to the Criminal Complaint, follow. ' 

### formed the factual basis for the plea, as stated in the Affidavit of probable Cause that is3

2 P e t it i o n e r re qu es t e d a n e xte n sio n of. ti m e In whi c h to fil e a res pon s e and t hat requ es t wa s gra n t e d a ll ow in g P e tit i oner tw e n ty d ays from t h e dat e o f th e M a rc h 9, 20 1 5 Ord er l n w h i c h to re s po n d
. 3 On Ap r il 2, 2 01 5 P et i ti one r ' s "Supp l e m e n ta l O bj e cti o n s to J u dg e's O rde r of I n t ent t o D i s m iss P C RA P e ti t i on Without a H ea r ing, " was fi l e d
. 

### m o ti o n 

### . to di s mi ss p u rs u a nt to Rul e 6 00. P et iti o n e r als o cl a imed th at t ri a l co un se l p rovi de d in eff e ct ive a s s i st a nce by f a iling t o file a wh e th e r P e ti t ion e r was a "se co nd st ri ke " offe nd e r p urs uant t o 4 2 Pa .CS .A. 9 71 4( d )
. f a ilure to make a n o n-th e -record d e t e r m i nati o n at t h e tim e o f se n t encing. rega rdin g that t r i a l couns e l provi d e d ine ffectiv e a s s i sta nc e for f a iling t o obj ect to th e Tri a l Court' s yea rs or m o re in s t ead o f th e 10 b e in g off e red " if h e we nt t o tri a l. Additi o n a lly, it was all ege d In s up p ort o f th is claim P e titi o n er a ll e ge d that tri a l cou nse l told him th at h e w ould ge t "4 0 him int o pl ea ding g uilty a nd th e refore, th e pl ea wa s n o t k n owi ng, int e ll i g e nt a nd vo lunt ary. 

## . In hi s p ro se 

### p etit ion P et ition e r all e ged th at b ot h t ri al co un se l and the Court " coerc ed " App ea l wa s fil e d, n ecessi t atin g t his O pinion. Petiti o n er's res p o n se t o thi s n o t ice was fil e d on Marc h 2 3 , 2 01 5
. On A pr il 1 , 2 0 15 a n Order di s mi ss ing th e p e t i tion wa s 

### entered ' a nd o n A pr il 20 , 2 0 1 5 a t i me l y prose 

### N oti c e of th e P CRA p e t i tion w i thout a h ea ring a n d all o w e d the P e tit io n er a n opp ort uni ty t o res pond - within twenty days 2 

### a s p e r P e nnsylva nia R ul e of Proc e dure 90 7
. · Febru a ry 11, 2 01 5 and at th at t ime th e Court gave th e pa rt i es no t ic e of i ts int e nt t o dis m iss along with a " no-m e nt" l e tter. Appoint e d co uns e l wa s granted le ave t o withdraw o n was a p point e d. On Febru a ry 3, 2015, app o inted coun s el fli e d an application t o withdraw On · July 14, 2014 Petiti o ner filed th e PCRA petition that is b e fore the C o urt. C oun se l D e cember 4, 201 3. - the Court. The Superior Court reje ct e d thi s clai m and judgm e nt o f s ent e nce was affirmed on -. ,4 I n hi s co n d 

### 5 7 } ;i1 ''s-i ' "'" 1¥i ;;, ·•· 8 f M att e rs comp tat n e c o f o n App e a l P u rs u a nt to Pa
. R .C
. P
. 19 2 5(b) " ( si c) Pe ti t ion e r

ra i s es a cl a i rt1 n. s~I wa s like wi se i n e ff e cti ve for f a il i n g t o ra i se thi s i ss u e . C l ai m s ' o f PC RA co un se l' s i n e ff e cti ve n es s ~ . 1 se d for t he fi rs t t ime o n a p pe a l. S ee Co mm o nw e a l t h v . Co l avi ta, 9 9 3 A. 2 d 874 , · 893 n , 1 2 (Pel '. 0 w ea l t h v . P i tt , 9 8 1 A. 2 d 875 (P a. 2 00 9 ); C o mm o n wea l th v . H e n ke l , 9 0 A . 3d 4 

### m er it. 4 

### Ti
. ~ I co un se l wa s i ne ff ect i ve in hi s re prese nt ati o n has no arguabl e Co mm o nw ea lth 

### v. Johnson , 87 5 A .2 d 328 , 33 1 (P a . Sup er . a n app e llant r;nμ~ f ~ how t h at p l ea co uns e l' s i n e ff ective n ess i nd uce d h i m t o p lea
. I f th e :::· :·;·: : :, ·. 7:.: : ·· :· · :. · ·: ::'.'
_... . :/ _. ..::-. - , . · , : · · · : 

### d e f e nd a nt 

# rr1 ~R ~ 0

## ; § μ , c h a sh owing, his p l ea will b e d ee m e d i nvolunt a ri l y m a d e an d he wi ll b e

. . · , ~ : ) ::;,(: :::::_ 

### Co mmonwealth v. Thom as , 783 A .2 d 328 (Pa. Sup e r. 2 001 ). In th e context o f a g u il ty plea, co u nsel p rovid e d in e ffective as s i sta n ce a p e t i tion e r 's cl a im i s with o u t m e r i t. S ee of the ca se and the a ppellant ' s int e ra ction s with his lawy e r ." Id. Coun
. s e l will not be found in e ff e ctive in a vacuum. Wh e re t h e re is no fa ctu a l pre di cat e su p p ort in g th e a ll e g at io n t h at Section 9543 of the PCRA provides 

### inte r alia that to b e e ligible for relief a petitioner must plead a nd prove by a pre ponde ranc e of th e evid e nce that h is con v iction result e d from o ne or more of th e e num e rat e d errors or d e fe ct s set forth in the Act. S e e ~· Commonwe a lth v. C ar p e nt e r, 7 2 5 A.2d 154 (Pa. 1999)
. 11 

### [T]o s u c ceed o n an ineffective a s sistan c e of coun se l claim, th e petitioner must sh ow: (1) that th e clai m i s of arguable m e rit ; (2) that coun s el had no reasonable strategic basi s for his o r h e r action o r inaction; a n d (3) that, but for th e errors and omis s ions of counsel, there is a reas on a ble probability th at the outcom e of the pro c eeding s would have b ee n diff e rent. Where in e ffective assistance of c ounsel is alle g ed the "circumst a nce s of the particular case" includ e the totality of th e evidenc e that was introduced at trial, and may al s o include fa cts co ncerning th e pro s ecution 

## ' I. . • :. : . ·:



### 5 1 6 , 2 0 (P a. S u per . 2 01 4). A r ul e- b ase d ri ght to co un s e l e x i s t s t h rough o u t P C RA proce ed i ng s a nd P e nnsy lva nia c ourt s hav e rec og niz e d that t h is include s a right to e ff e cti ve rep re se nt at i on. S e e id. Se e al s o Pa
. R
. Cri m. P
. · 9 0 4 ( F) ( 2)
. Wh e re P C RA c oun se l h as be e n gran te d l eav e to w i thdraw from PC RA p ro c eed in gs t hrou gh t h e • pro ce d ure es tabli s hed in Co m mon we al t h v . Turn e r, 544 A.2d 927 (P a. 198 8 ) a nd C o mm on we a lth v. Fi nl e y , 5 50 A.2d 213 (Pa
. Su per . 1 98 8 ) , a n d a N otic e of Int e n t t o D i s m i s s h as b ee n e ntere d - by t h e c ourt , a p e t i t io n e r i s requ i re d to rais e any cl a i m s of P C RA c ou n s el 's i neff e ct iv e re pre s en tation within th e 2 0-d ay re s pon s e p eri o d. S e e~ · Com m onw ea lth v . Pi tts, 98 1 A .2 d 875 (Pa
. 20 0 9)
. Cl a im s th at are n o t p re s e rv e d in t h i s m a n n e r a re waive d
. See a l so C o m monwea lth v . Ry ka rd, 55 A. 3 d 1177 (P a. S up e r. 20 12 ) (a lle gat ion s o f P C RA coun se l' s ineff ect iv e ass l s t en c e ma de i n res p o n s e t o a n o t ice o f i nt en t to d is mi ss th at i ssued fo llowing ap po i n t e d coun s e l ' s subm i ss lo n of a " no m e ri t" l e tt e r " i s not a s econd o r s e rial p e tition , nor i s it a n am e nded p e t iti o n . Rath e r, t he claim i s m o re pro pe rly v i e w e d as an objection t o di s m iss al. " Id
. at 11 8 7
. To a dd n ew n o n-PCRA c oun s e l ine ff e ct i veness clai m s l eav e t o a m e nd mus t b e gra nt e d by t he P CRA c o u rt . ) required
. Additionally, any cla i m that the C om monwealth's agree ment to fore g o a mandatory minimum sentenc e and therefore a record d e terminat i on of Petition e r's eli g ibility was not of the n e goti ations the Commonw e alth agreed to forego the imposition of a mandatory failure to comply with the provisions of 42 Pa.C.S
. A. 

### § 9714 is p atently frivolous
. As a re sult P e t i t i on e r's cl a im that trial couns e l was ineffective for fai l ing to object to the Court 's days of ex cludable tim e. In light of the fore going Petition er ' s gu i lty pl e a wa s ent e re d well within the adjusted run date. 2011 , M ay 16, 2011 and Dec e mber 12 , 2 011 d e fen s e reques t s for continuanc e s yi e lded 105 "E x cluda b le time , " that rend e rs thi s claim m er itle ss is a ppare nt from the re co rd. On April 2 5, rundate was January 3, 2012. Petiti o n e r en te red his n eg oti ated plea on J an uary 2 4 , 2012
. The Criminal Complaint wa s filed on January 3, 2011. Th e refore th e "mechanical" Pa.R.Crim.P.

600((). attorney ." Se e Commonwealth v
. Jones, 886 A.2d 689, 700-01 (Pa. Super
. 2005). See al s o -c alculation is ''any continuan c e g rant e d at the reques t of th e defendant or the def e ndant's I' · - 365 days from the date on which the co mplaint is fil e d." E x cluded from th e 

### 365 day court ca se in which a written complaint is filed against th e defendant shall commence within ·. : · : -:. J .. . , : . : .... · . ~ ~J I Rule
. 600'o f th e P e nnsylvania Rule s of Crimin a l Pro ce dur e pro v ;d e s that " [t)rl al\n ' a 

# . . 

# J6

trial counsel failed to advise him of the favorable terms of the deal that was offered. There is the record, this effort was made to eliminate any future claim that Petitioner might raise that the Court did in fact ensure that the Petitioner was fully informed of the terms of the plea on offers as evidence of this claim demonstrates that this plea was voluntarily entered. While Commonwealth v. Sanutti, 312 A.2d 42, 44 (Pa. 1973). The record colloquy, which Petitioner there used, denotes some active role in discussion or negotiation relative to a plea." 2005) citing Commonwealth v. Evans, 252 A.2d 689 (Pa. 1969). "Partklpatlon', in the sense be considered voluntary. Commonwealth v. Johnson, 875 A.2d 328, 331-32 (Pa. Super. plea entered on the basis of a sentencing agreement in which the judge participates cannot 

### . participation in plea negotiations resulting in an involuntary plea has no arguable merit. \'[A] Similarly the claim that trail was ineffective for failing to object to the trial court's twenty years of incarceration for this robbery. and by entering this negotiated plea he avoided a mandatory sentence of at least ten to Pa.C.S.A. §9714, Sentences for second and subsequent offenses but for the negotiated plea demonstrates therefore that the Petitioner would in fact be subject to the provisions of 42 offered no proof which demonstrates that these convictions did not exist. The existing record convictions for robbery. Petitioner bears the burden of proof in these proceedings and he has Sentencing Guidelines assign Petitioner a Prior Record Score of \\8" based on two prior offer any evidence to support this claim and in fact, the record refutesthis suggestion. The crime of violence rendering Section 9714 inapplicable is meritless. Petitioner has failed to · minimum sentence was illusory because Petitioner's prior criminal record did not include a

# . Tw e lve pag es of th e h e arin g tran sc r i pt do c um e nt th e co urt' s pers i st e nt a dvi se m e nt s , which included th e f o ll o wing: th at t h e Common w ealth' s fun ction was to pro tect App e ll an t' s b es t i nt e rest ; th at th e off e r on th e tabl e was a mong th e b est h e h a d eve r witn essed a s a j uri st; t hat A ppe ll a n t w ould b e " ext re m e l y fo rtun at e" i f hi s o th e r a p p e a l g arn e red a n ew tri a l, J e t al o n e arres t of judgm e nt , a nd th at th e n e w t r i a l w oul d li kel y end in a noth e r con v i ct i o n wi t h th e p ossi bili ty o f consec uti ve se nt e nc es in s t ea d o f the pres e nt o ff e r' s gu a ra n tee o f a co ncur re nt se nt e n ce; th at App e ll a nt was " fortun ate t o h ave s u c h a coo perative D.A., h e ha s t ake n into co n s id erat i o n th at se n te n ce in D e l aware C ou n ty " ; an d t hat App e ll a nt wo ul d o nl y b e fi fty - e ight yea rs old wh e n h e compl e t es hi s thirty yea r se n te n ce, and l i f e wo uld " qo o n ." Th e co u rt als o cri t i cized



### . · A pp ell a nt fo r "sq u a bbl i ng ove r two more y ears w hich h as n o i m pact wh at soeve r in w hat ' s go ing t o go o n i n you r li fe b e ca u se o f th e s e nt e n ce in D e l aware C ou n ty ." Wh e n A ppe ll a nt agreed t o pl ead g ui lty , t h e co urt ' to obj ect: p e rsuad e d t he def e ndant t o ac c ept the pl ea and t h at tri a l co unse l was ineff ect ive f or fa ili n g

7 The Superior C ourt co nclud e d, ba se d on th e foll o w i ng, t h at th e t ri al co urt a ctive ly C ommonwe a lth's final offer were p u t on the record and it wa s reject e d by th e def e ndant. requ es t and at the time of t rial th e d e f e ndant appeare d re ady t o pro cee d. Th e t e rm s of th e stat e d th at " h e had no int e n t i o n o f ple a ding ." N ew co un se l was a pp o i nt ed at the d e f e ndant's month robbery spree. He a pp e are d before th e C o urt for a sc h e dule d pl e a but t h e defe nd a nt v iolations of t he Uniform F i re arm s Act an d crimin a l conspiracy in conn e ction w ith a thre eIn Joh n son, s up ra, t h e def e ndant was ch a rged w ith tw e l ve co unt s of ro bb e ry , Commonweal t h v. J ohn s on, 875 A. 2 d 3 2 8 , 3 3 1 - 32 (Pa. Sup er. 2 005) ; no eviden ce t h at th e Court act ive ly p articipated i n pl e a n e go t i atio ns . C om p a re

### 8

s The C ourt h as revi ewe d the 1/2 3 / 15 no tes o f te stimo ny an d c o mpare d the tran s crip t with the audio from the hearin g provide d by the D el aw are C ounty Office o f Ele c tronic Rec ording . The Court foun d th at D i az Data Servi c es erro ne ou s ly fail e d to in clu de the word " not " in it s tran s cripti o n. An Order ha s been entere d this d ate amending the note s o f testimony and cop i e s of the au dio CD, whic h h as b een made p art o f the rec ord h ave b e en provi de d to the p arti es . 

### you shouldn't go to t ri al. You should t a ke the offer. Th at ' s up to you be cause i t ' s your li f e, - · not m i n e , butw e 're tal ki n g abou t s ome heavy, h e avy time here . An d th ere can b e no n e w . I 

### min im u m of forty
.years at wh i ch ti m e th e de f endants' wo uld be " a l o t older than I am now . " Id
. at 5 , 9
. T h e Cou rt 's comments w e re br i ef and to th e point. \\All I 'm going to do is t e ll y o u what your ri s k is. It ' s up t o - if you want to ta ke th at r is k, you know, I'm 

## no t' going to tell I 

### s i g nifican t ly more favorabl e than th e d e f e ndant s' ex po s ure whi ch could pu t th e m i n ja i l fo r a de cision alone to ma ke. Id. at 9- 10
. The Court note d that the t e rms of th e p le a w e re h i ms e lf when he fa c ed a sentenc e of pos s ibly f orty yea rs but further indicat e d that it was his C o mmo n w e alth 's offe r and p le a d gu i lty
. Th e Co urt advi s e d M r . N e ls o n against re pre sen t i ng eve nts would occu r: tr ia l would comm e nce or the d e fend an ts w ould
. accept the Nelson that a new attorney would not be a ppo i nted on th e eve of tri a l and that one of tw o he was "not c omfortabl e " with th e attorney that was rep res e nting him. T he Court advi sed could i m pact each defendan t 's d ec isi o n to tes tify at t r ial. Id
. at 6
. Nelson told th e C o urt that the Court a nd the def en dants that e a ch d e f e ndant had prior conviction s for cr im i n fa/ s i s that See N
. T. 1/23/12
. The prosecutor st ated the t er ms of the offe r for the re cord and he a dv ise d In this ca se the d e f e ndants appeare d before th e Court on th e dat e scheduled for tri a l. 875 A.2d at 3 3 0. . . 

### impose d a s e nt e nc e of t e n to twen ty years ' imp r i s onmen t to run con c urren t l y to h i s D e lawa re County se n ten c e . d e clare d \\I t hin k you made a w ise deci s ion , sir
.... " The court t hen . ·• ,9

2 3 . 

### th e C om mo n wea l t h P e titi o n e r a gree d a nd co ntin ue d on w ith t h e pl ea off er. I d
. at



### . ' 

### O rd e r. I d. at 2 0- 21. Aft er c oun se l e x pl a in e d th at res tituti o n was am ong t he t e rm s off ere d by
. · i ns tru me nt s o f c r im e a nd a sking wh e t her re stitut io n co uld b e e limin ate d from th e se n t en ci ng Pe tition e r p art i c i pate d in th e coll o qu y , m a ki ng in q ui ries re ga rd ing th e f act th at wire ti es w ere g iving up h i s ri g ht to a jury t ri a l an d a ll o f t h e right s that are associated. Id
. at 1 4 -1 8
. . di sc u ss e d hi s cas e w i t h c o u n se l, a n d h e und e rstoo d hi s ri g ht s a nd und e rst ood th at h e w as co u nse l o n seve ra l occas i o n s a nd h e was sati sfie d w ith hi s re pres e n tati o n. H e had a d e qu at e l y a G ED, he ca n re ad , writ e a nd und e rs t a nd En g li s h. H e ack nowl e dg e d th at he met w i th t ri a l In th e course o f th e pl ea colloqu y P e ti t ion e r stat e d th at h e was thirty y e ars ol d , h e has t h e n e g o t iati o n s . Id. at p p . 5- 2 6
. of eac h d e fendant th e pl e a s w e re a cc e pt e d and th e Cou rt imposed senten c es i n a ccord w i th the n e g o ti ated pl e as we re offere d. N.T
. 1/24/ 1 2 p . 3. Aft e r a th o rough a nd compl e t e colloquy Th e n ext day, Janu a ry 24 , 2012 t h e d efe ndants again app e ared b e fore t h e C o urt a nd gentlemen ." Id. at 10
. Court conclud e d i ts re m a rks, "Okay
. All ri g ht. W e 'll see yo u to m orrow morning. Good lu ck , W e' ll start at 10:00 a nd w e' ll b e re a d y to go ." Both d e fendants rej ected th e plea and the s ame t i m e . S o you wa l k o ut o f this room 

### we 1 

### II se e you tomorrow m o rn i ng with th e j u ry t r ial. \\Sir ; did yo u h e a r eve rything ? Th e sa m e thing a ppli e s t o yo u be cau se you're loo k ing at the now. That 's basi cally the bottom line. " Id ; at 10. Turning to Pet i tioner, th e Court co nt i nu e d, att o rn ey . Th e re' s going to be a tri a l t o mo r row m o rning o r th e re's going to be a d e al r igh t1 1 :~-r ':i -~~ .~ABY THE COURT: 

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### be rejected because it 

### has no arguable m e rit. claim that trial counsel's ineffective representation induced an involuntary guilty plea should • •• 4