J-S38039-18

* Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

Appellee

v.

ROBERT BENSON EDWARDS 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 126 WDA 2018

Appeal from the PCRA Order December 11, 2017

in the Court of Common Pleas of Westmoreland County 

Criminal Division at No(s): CP-65-CR-0001847-2016

BEFORE: BOWES, NICHOLS, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.: FILED AUGUST 27, 2018

Robert Benson Edwards (Appellant) appeals from the order entered 

December 11, 2017, dismissing his petition filed under the Post Conviction 

Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.

In 2016, Appellant robbed a jewelry store after threatening the owner 

with intimations that he had a gun. He was charged with the following 

crimes: (1) one count of first-degree felony robbery in violation of 18 

Pa.C.S. § 3701(a)(1)(ii); (2) one count of third-degree felony theft in 

violation of 18 Pa.C.S. § 3921(a); (3) two counts of third-degree felony 

receiving stolen property in violation of 18 Pa.C.S. § 3925; and (4) one 

count of second-degree misdemeanor simple assault in violation of 18 

Pa.C.S. § 2701(a)(3). The maximum aggregate sentence a defendant can 

receive for these crimes is 43 years. 
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On August 2, 2016, Appellant and the Commonwealth entered into a 

negotiated plea agreement. In exchange for Appellant’s guilty plea, the 

Commonwealth agreed to nolle pros the simple assault and theft charges, 

and to reduce the robbery charge to a second-degree felony. Appellant and 

the Commonwealth agreed that Appellant would plead guilty to one count of 

robbery pursuant to 18 Pa.C.S. § 3701(a)(1)(iv), for which Appellant would 

receive a sentence of 4 to 20 years’ incarceration, and two counts of 

receiving stolen property, for which Appellant would receive a sentence at 

each count of 2 to 7 years’ incarceration to be served concurrently with the 

sentence for robbery. Appellant pled guilty, and the trial court sentenced 

Appellant in accordance with the plea agreement. Appellant did not file a 

post-sentence motion or direct appeal. 

By order entered August 15, 2016, which was within the timeframe 

permitted by 42 Pa.C.S. § 5505 (regarding modification of orders within 30 

days after its entry and prior to the filing of an appeal), the trial court 

amended its sentencing order and reduced Appellant’s maximum sentence 

for the robbery count from 20 to 10 years. The trial court explained in the 

order that the amendment was “necessary because [the robbery count] is a 

felony of the second degree, carrying a maximum legal sentence of [ten] 

years.” Trial Court Order, 8/15/2016, at 1. 

On June 28, 2017, Appellant timely filed a pro se PCRA petition, his 

first, alleging, inter alia, that his negotiated sentence was illegal; his plea 
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counsel rendered ineffective assistance of counsel by negotiating a plea with 

an illegal sentence; and the trial court erred by modifying his sentence 

without notice to Appellant or without Appellant being present.

1

 Statement 

of Facts attached to PCRA Petition, 6/28/2017, at 1-2. Appellant averred 

that the reduction in the sentence was the result of collusion between the 

trial court, the Commonwealth’s attorney, and his plea counsel, and claims

he did not know about the modification until February 2017. Id. at 2. 

Appellant requested that the PCRA court vacate his plea and sentence. 

PCRA Petition, 6/28/2017, at 5. 

The PCRA court appointed counsel to represent Appellant. Counsel 

filed a petition to withdraw accompanied by a no-merit letter pursuant to 

Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and 

Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). 

Appellant filed a response objecting to counsel’s petition to withdraw, which 

he later supplemented with permission of the PCRA court. Appellant also 

filed pro se a petition to amend his PCRA petition along with an amended 

 

1 The August 15, 2016 sentencing order states that the court entered the 

order modifying Appellant’s sentence “upon motion of the Commonwealth 

and with the consent of the attorney for the defendant.” Id. No written 

motion from the Commonwealth appears of record. It is possible the 

Commonwealth made an oral motion, but the PCRA court referred to the 

order as being entered sua sponte, further confusing matters. Amended 

Rule 907 Notice, 11/13/2017, at 3-6.

 
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PCRA petition.2 In the amended PCRA petition, Appellant, inter alia, averred 

that the plea colloquy was defective because it did not inform him of the 

maximum sentence he was facing, causing him to enter an unknowing plea. 

Amended PCRA Petition, 10/6/2017, at 1-2. He also averred that his plea 

counsel did not inform him of the maximum sentence for a second-degree 

felony, and this failure, in addition to plea counsel’s failure to object to the 

plea colloquy, constituted ineffective assistance of counsel. Id. 

The PCRA court issued an initial and then amended notice of intent to 

dismiss the petition pursuant to Pa.R.Crim.P. 907, concluding that (1) the 

plea colloquy satisfied the requirements of Pa.R.Crim.P. 590; (2) Appellant 

was sentenced to an illegal sentence in excess of the statutory maximum, 

but the trial court properly corrected the sentence within the timelines set 

forth in 42 Pa.C.S. § 5505; (3) plea counsel was ineffective for allowing 

Appellant to plead guilty to an illegal sentence, but Appellant is not entitled 

to relief because his sentence ultimately was reduced; therefore, he has not 

suffered any prejudice by counsel’s ineffective representation; and (4) 

despite plea counsel’s ineffectiveness, Appellant entered a knowing and 

 

2 Amendments to pending PCRA petitions are to be “freely allowed to 

achieve substantial justice,” but must be made at the direction or by leave of 

the PCRA court. Pa.R.Crim.P. 905(A); Commonwealth v. Porter, 35 A.3d 

4, 12 (Pa. 2012). Here, the PCRA court never expressly provided leave to 

amend the petition. Nevertheless, the PCRA court implicitly permitted 

Appellant to amend his petition by addressing the new claims in its ruling. 

See Commonwealth v. Brown, 141 A.3d 491, 503-04 (Pa. Super. 2016); 

Amended 907 Notice, 11/13/2017, at 2. 
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voluntary plea because the plea colloquy and guilty plea petition were 

satisfactory. Amended Rule 907 Notice, 11/13/2017, at 3-6. 

Appellant did not file a response to the Rule 907 notice, and on 

December 11, 2017, the PCRA court dismissed Appellant’s petition without 

an evidentiary hearing and granted counsel’s petition to withdraw. Appellant 

timely filed a notice of appeal. The PCRA court did not order Appellant to file 

a statement pursuant to Pa.R.A.P. 1925, and Appellant did not file one. In 

lieu of filing an opinion pursuant to Pa.R.A.P. 1925(a), the PCRA court 

directed us to its November 13, 2017 opinion accompanying its Rule 907 

notice. 

On appeal, Appellant raises four issues: 

(1) Was [plea] counsel ineffective in negotiating a plea bargain 

to an [illegal] sentence? 

(2) [Was] the plea colloquy defective and [did it] fail to meet 

the standards of law? 

(3) Did [the] trial court [err] in arbitrarily altering Appellant[’]s 

sentence? 

(4) Did [the] trial court abuse its discretion in failing to vacate 

Appellant[’]s guilty plea?

Appellant’s Brief at 3 (capitalization altered; trial court’s answers omitted; 

reordered for ease of disposition).

“On review of orders denying PCRA relief, our standard is to determine 

whether the PCRA court’s ruling is free of legal error and supported by the 
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record.” Commonwealth v. Boyer, 962 A.2d 1213, 1215 (Pa. Super. 

2008).

Appellant makes the following arguments on appeal: (1) that his plea 

counsel gave him erroneous advice to enter into a plea agreement to avoid a 

maximum sentence that the trial court never had the authority to impose; 

(2) the plea colloquy at his plea hearing was deficient because it did not 

inform him of the minimum and maximum sentences he faced; (3) the trial 

court improperly modified his sentence outside of Appellant’s presence and 

without the notice to Appellant required by 42 Pa.C.S. § 5505;

3 and (4) upon 

learning that the parties mutually agreed to an illegal sentence, the trial 

court should have vacated Appellant’s plea and sentence instead of 

modifying the sentence. Appellant’s Brief at 9-14. He also alleges derivative 

claims that his plea counsel was ineffective for not addressing the trial 

courts’ errors alleged in issues two through four, and his PCRA counsel was 

ineffective by seeking to withdraw under Turner/Finley instead of litigating 

the claims he raises on appeal. Id.

 

3 Section 5505 provides: “[e]xcept as otherwise provided or prescribed by 

law, a court upon notice to the parties may modify or rescind any order 

within 30 days after its entry, notwithstanding the prior termination of any 

term of court, if no appeal from such order has been taken or allowed.” 42 

Pa.C.S. § 5505. 

 In his third issue, Appellant simply argues he was entitled to notice for the 

sake of receiving notice; he does not specify what the trial court should have 

done in lieu of reducing his sentence. Presumably, he wishes to vacate his 

plea, as he argues in his fourth issue. 
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With respect to his arguments regarding the trial court’s alleged errors 

in issues two through four, generally, claims of trial court error, other than 

those enumerated in 42 Pa.C.S. § 9543(a)(2)(i-viii),4 are not cognizable 

under the PCRA. Furthermore, Appellant could have raised these issues on 

 

4 Subsection 9543(a)(2) provides that to be eligible for relief, the 

petitioner must plead and prove that the conviction or sentence 

resulted from one or more of the following:

(i) A violation of the Constitution of this Commonwealth or the 

Constitution or laws of the United States 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.

(ii) Ineffective 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 circumstances 

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 was properly preserved in the trial court.

(v) Deleted.

(vi) The unavailability at the time of trial of exculpatory evidence 

that has subsequently become available and would have 

changed the outcome of the trial if it had been introduced.

(vii) The imposition of a sentence greater than the lawful 

maximum.

(viii) A proceeding in a tribunal without jurisdiction.

42 Pa.C.S. § 9543(a)(2)(i)-(viii).
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direct appeal, but he failed to do so. See 42 Pa.C.S. § 9544(b) (“For 

purposes of this subchapter, an issue is waived if the petitioner could have 

raised it but failed to do so before trial, at trial, during unitary review, on 

appeal or in a prior state postconviction proceeding.”); 42 Pa.C.S. § 

9543(a)(3) (“To be eligible for relief under this subchapter, the petitioner 

must plead and prove ... [t]hat the allegation of error has not been 

previously litigated or waived.”). Thus, Appellant’s claims of trial court error 

are both not cognizable and waived. See Commonwealth v. Spotz, 18 

A.3d 244, 270 (Pa. 2011).

We now turn to Appellant’s claims that his plea counsel was ineffective 

for giving him flawed advice in the plea process, and his related claims that 

plea counsel was ineffective for not addressing the trial court errors alleged 

in issues two through four.5 

 “Allegations that counsel misadvised a criminal defendant in the plea 

process are properly determined under the ineffectiveness of counsel

subsection of the PCRA [(42 Pa.C.S. § 9543(a)(2)(ii)),] not the [sub]section 

 

5 Appellant has failed to develop as separate issues his claims regarding the 

ineffectiveness of his PCRA counsel in not pursuing issues one through four 

and the ineffectiveness of his plea counsel in not addressing the trial court 

errors alleged in issues two through four. He also has failed to set forth a 

fully developed analysis of these claims in his brief. We could find such 

claims to be waived. See Pa.R.A.P. 2116(a); 2119(a). Notwithstanding 

Appellant’s failure to comply with our rules of appellate procedure, we will 

address such claims on the merits, as his noncompliance does not 

substantially impede our appellate review. 
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specifically governing guilty pleas [(42 Pa.C.S. § 9543(a)(2)(iii))].” 

Commonwealth v. Lynch, 820 A.2d 728, 730 n.2 (Pa. Super. 2003).

It is well-established that counsel is presumed to have 

provided effective representation unless the PCRA 

petitioner pleads and proves all of the following: (1) the 

underlying legal claim is of arguable merit; (2) counsel’s 

action or inaction lacked any objectively reasonable basis 

designed to effectuate his client’s interest; and (3) 

prejudice, to the effect that there was a reasonable 

probability of a different outcome if not for counsel’s error. 

The PCRA court may deny an ineffectiveness claim if the 

petitioner’s evidence fails to meet a single one of these prongs. 

Moreover, a PCRA petitioner bears the burden of demonstrating 

counsel’s ineffectiveness.

Commonwealth v. Franklin, 990 A.2d 795, 797 (Pa. Super. 2010) 

(internal citations omitted).

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 [pled] guilty and 

would have insisted on going to trial. The reasonable 

probability test is not a stringent one; it merely refers to a 

probability sufficient to undermine confidence in the outcome. 

Commonwealth v. Barndt, 74 A.3d 185, 192-93 (Pa. Super. 2013) 

(citations and quotation marks omitted; emphasis added).

There is no question that plea counsel’s advice to enter into a plea 

with an agreed-upon sentence that exceeded the statutory maximum “fell 
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below the range of competence demanded of attorneys in criminal cases.” 

Commonwealth v. Kelley, 136 A.3d 1007, 1014 (Pa. Super. 2016). 

However, Appellant bore the burden of pleading and proving all three prongs 

of the test for ineffectiveness. Thus, Appellant was required to plead and 

prove prejudice by alleging that it was reasonably probable that, but for 

counsel’s errors, he would not have pled guilty and would have gone to trial. 

Because Appellant did not assert prejudice in the first instance before the 

PCRA court, the claims he raises on appeal regarding the ineffective 

assistance of his plea counsel during the plea process fail as a matter of law. 

Further, even if he had properly pled his claims, Appellant would not 

be able to prove that he was prejudiced by plea counsel’s actions. All of 

Appellant’s issues stem from the same faulty premise: that notwithstanding 

his eventual sentence reduction, his counsel rendered “unsound advice to 

plead guilty under the threat of a sentence that the [t]rial [c]ourt had no 

authority to impose[, which] influenced [Appellant] into making a grave and 

erroneous decision to plead guilty.” Appellant’s Brief at 9. In other words, it 

appears that Appellant is arguing that had he known that he was facing only 

ten years versus twenty for the robbery charge, he would have negotiated 

the plea agreement differently or taken his chances at trial. See id. 

However, Appellant’s contention that he pled guilty to avoid a twentyyear sentence that the trial court did not have authority to impose simply is 

incorrect. The Commonwealth initially charged Appellant with first-degree 
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felony robbery, which carried a twenty-year maximum sentence. See 18 

Pa.C.S. § 3701(b) (specifying that a violation of subsection 3701(a)(1)(ii) is 

a felony of the first degree); 18 Pa.C.S. § 1103(1) (providing for a 20 year 

maximum sentence for first-degree felonies). Appellant’s 4 to 20 year

sentence was illegal only because the crime to which he actually pled guilty 

was downgraded to a second-degree felony. See 18 Pa.C.S. § 3701(b) 

(specifying that a violation of subsection 3701(a)(1)(iv) is a felony of the 

second degree); 18 Pa.C.S. § 1103(2) (providing for a 10 year maximum for 

second-degree felonies). 

Thus, when plea counsel advised Appellant of his potential 20-year 

exposure on the robbery charge prior to the plea, Appellant was in fact 

facing a possible 20-year sentence on that charge. Accordingly, Appellant 

was faced with a decision between going to trial on all five charges and the 

potential of a maximum aggregate sentence of 43 years versus taking a plea 

on two charges, including the reduced grading of the robbery count, and 

receiving an aggregate maximum sentence of twenty years. Had plea

counsel recognized that the plea agreement included an illegal sentence, 

Appellant still would have been facing the potential of 43 years. Appellant 

ultimately received a sentence that was lower than the one he negotiated 

when the trial court corrected its mistake. Thus, Appellant’s issues

regarding plea counsel’s representation of him in connection with his plea fail 

due to lack of prejudice. 
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Furthermore, there is no merit to Appellant’s assertion that the trial 

court should have vacated his plea. Unlike the cases cited by Appellant, 

there is no basis to withdraw Appellant’s guilty plea because the plea 

negotiations were not tainted by misinformation about a maximum sentence. 

See, e.g., Commonwealth v. Lenhoff, 796 A.2d 338 (Pa. Super. 2002) 

(holding that when considering a motion to withdraw a plea, the court 

should examine whether the defendant pled guilty to avoid a maximum 

sentence which, by law, could not have been imposed). Thus, plea counsel 

was not ineffective for failing to raise this meritless claim. Commonwealth 

v. Spotz, 896 A.2d 1191, 1210 (Pa. 2006) (“Counsel will not be deemed 

ineffective for failing to raise a meritless claim.”). 

Because all of Appellant’s claims fail, it follows that PCRA counsel was 

not ineffective for withdrawing pursuant to Turner/Finley instead of 

pursuing these meritless claims.

Based on the foregoing, the PCRA court did not err by dismissing 

Appellant’s PCRA petition. Therefore, we affirm the order of the PCRA court.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/27/2018
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