J-S03035-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

SANJAY PATEL

Appellant No. 1993 EDA 2014

Appeal from the PCRA Order June 10, 2014

In the Court of Common Pleas of Montgomery County

Criminal Division at No(s): CP-46-CR-0006368-2011

BEFORE: FORD ELLIOTT, P.J.E., PANELLA, J., and OTT, J.

MEMORANDUM BY OTT, J.: FILED APRIL 06, 2015

Sanjay Patel appeals from the order entered June 10, 2014, in the 

Court of Common Pleas of Montgomery County, dismissing his petition 

seeking collateral relief pursuant to the Post Conviction Relief Act (“PCRA”), 

42 Pa.C.S. §§ 9541–9546. Patel claims trial counsel was ineffective in failing 

to advise him the drug possession charge at the criminal docket number 

underlying this appeal was subject to a three-year maximum sentence, and 

not a one-year maximum sentence as he was advised at his guilty plea 

hearing. See Patel’s Brief at 3. Based upon the following, we affirm.

The PCRA court has summarized the background of this case as 

follows:
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On November 16, 2012, [Patel] entered an open guilty plea on 

file 6368-2011, to possession of heroin; on file 7172-2012, to 

possession of heroin and on file 3840-2012, to retail theft.[1] 

During the colloquy and pertinent to this appeal, [Patel] was 

incorrectly advised by the Commonwealth that the possession 

charge at file 6368-11 carried a one-year maximum. (Guilty Plea

11/16/12 pp. 10 -11). [Patel] was also advised by this Court that 

the second possession charge had a maximum sentence of three 

years, and that the retail theft charge carried a two-year 

maximum. Id.

Sentencing was held on February 21, 2013.[2][Patel] was 

sentenced on each of the possession convictions to a term of 6 

to 23 months’ imprisonment, to run concurrent to each other[, 

followed by a one year term of probation, to run concurrent with 

each other]. On the retail theft charge, [Patel] was sentenced to 

a two year probationary term, consecutive to the previous 

sentences. In aggregate, [Patel] was sentenced to 6 to 23 

months’ imprisonment, followed by [three] years’ probation. No 

appeal was taken. 

On February 20, 2014, [Patel] filed a [counseled] PCRA petition, 

to which the Commonwealth filed an Answer and Motion to 

Dismiss. Thereafter, [Patel] filed an Amended PCRA petition on 

June 4, 2014. The following day, the Commonwealth again filed 

an Answer and Motion to Dismiss. Argument on the petition was 

held on June 10, 2014. Following argument this Court issued the 

Final Order of Dismissal dated June 10, 2014, which is the 

subject of this appeal.

____________________________________________

1

In exchange for Patel’s agreement to enter the open guilty plea, the 

Commonwealth withdrew six felony counts, and allowed Patel to plead guilty 

to three misdemeanors. See N.T., 2/21/2013 (Sentencing), at 17.

2

Prior to imposing sentence, the trial court noted the presentence report 

indicated that both of Patel’s drug possession charges were subject to a 

three-year maximum sentence, and determined that “the prior possession 

with intent would make these [drug possession charges] both three years.” 

Id. at 9.
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PCRA Court Opinion, 8/11/2014, at 1-2.3

At the outset, we state the principles that guide our review:

When reviewing the propriety of an order granting or denying 

PCRA relief, this Court is limited to determining whether the 

evidence of record supports the determination of the PCRA court 

and whether the ruling is free of legal error. Great deference is 

granted to the findings of the PCRA court, and these findings will 

not be disturbed unless they have no support in the certified 

record. 

Commonwealth v. Rachak, 62 A.3d 389, 391 (Pa. Super. 2012) (citations 

omitted), appeal denied, 67 A.3d 796 (Pa. 2013). 

Counsel is presumed effective and will only be deemed 

ineffective if the petitioner demonstrates that counsel’s 

performance was deficient and he was prejudiced by that 

deficient performance. Prejudice is established if there is a 

reasonable probability that, but for counsel’s errors, the result of 

the proceeding would have been different. A reasonable 

probability is a probability sufficient to undermine confidence in 

the outcome.

To properly plead ineffective assistance of counsel, a petitioner 

must plead and prove: (1) that the underlying issue has 

arguable merit; (2) counsel’s actions lacked an objective 

reasonable basis; and (3) actual prejudice resulted from 

counsel’s act or failure to act. If a petitioner fails to plead or 

meet any elements of the above-cited test, his claim must fail.

Commonwealth v. Ford, 44 A.3d 1190, 1194–1195 (Pa. Super. 2012) 

(citation omitted), appeal denied, 54 A.3d 347 (Pa. 2012). 

It is clear that a criminal defendant’s right to effective 

counsel extends to the plea process, as well as during 

____________________________________________

3 We note that Patel timely complied with the PCRA court’s order to file a 

concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 

1925(b).
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trial. However, [a]llegations 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.

“[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.” Moreover, with regard to 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, 769–770 (Pa. Super. 2013) 

(citations omitted).

It is well established that when a defendant seeks to withdraw a 

guilty plea after sentencing, “a showing of prejudice on the order 

of manifest injustice is required before withdrawal is properly 

justified.” In certain circumstances, the failure to inform a 

defendant of the maximum possible sentence he or she could 

receive has been found to be a manifest injustice. For instance, 

this is the case when the defendant receives a sentence in 

excess of what he was informed the maximum sentence could 

be. However, “if a defendant enters an open guilty plea and 

justifiably believes that the maximum sentence is less than what 

he could receive by law, he may not be permitted to withdraw 

the plea unless he receives a sentence greater than what he was 

told.”

Commonwealth v. Warren, 84 A.3d 1092, 1096 (Pa. 2014) (citation 

omitted). See also Commonwealth v. Carter, 656 A.2d 463, 466 (Pa. 

1995) (where defendant’s aggregate penalty did not exceed the maximum 

single-count sentence of which he was aware when he pled nolo contendere, 
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he was not prejudiced by the lack of accurate advice regarding his potential 

maximum sentence).

The record reflects that while Patel was advised at the guilty plea 

hearing that the drug possession charge at this docket carried a maximum 

sentence of one year, rather than three years,4 he was correctly informed 

that the drug possession charge at criminal docket number 3840-12 carried 

a three-year maximum sentence, and that the retail theft charge carried a 

two year maximum sentence. In addition, Patel acknowledged in the written 

guilty plea colloquy that the sentences could be imposed consecutively. 

Therefore, Patel was aware that he was facing an aggregate maximum 

sentence of six years, even though the lawful maximum sentence was eight 

years’ imprisonment. 

Here, Patel was sentenced to less than five years. As stated above, on 

the drug charges at the separate dockets, the trial court imposed two 

concurrent sentences of 6 to 23 months’ imprisonment, followed by 

concurrent one-year terms of probation, and on the retail theft charge, 

imposed a consecutive two year probationary term. As such, the sentence 

imposed was less than the six-year maximum sentence communicated to 

____________________________________________

4 As noted earlier in this memorandum, at sentencing the court discussed 

the fact that the drug charge at this docket carried a three-year maximum 

sentence. See N.T., 2/21/2013 (Sentencing), at 8–9.
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Patel. Accordingly, applying Warren, supra, and Carter, supra, no relief is 

due.5

Order affirmed.

____________________________________________

5

Patel attempts to distinguish Warren, cited by the PCRA court in its 

opinion, and, Commonwealth v. Carter, 656 A.2d 463 (Pa. 1995), relied 

upon by the Commonwealth in its brief, on the basis that in these cases, 

“the defendants were not sentenced above the individual maximum sentence 

that they were advised for the crimes charged.” Patel’s Brief, at 9. We are 

not persuaded by this argument. In Warren, only one charge, possession 

with intent to deliver, was at issue. Furthermore, in Carter, where the 

defendant pled nolo contendere to four counts of burglary and was not told 

the sentences would be run consecutively, the Pennsylvania Supreme Court 

determined the appellant suffered no prejudice where he was sentenced to 

less than he could have received on one burglary count. Both Warren and 

Carter turned on the question of whether the defendant suffered manifest 

injustice by receiving a higher sentence than what he was aware he could 

receive. See Carter, 656 A.2d at 466; Warren, 84 A.3d at 1096–1097.

Patel also claims that he is prejudiced by the possibility that if he were 

to violate probation, he could end up a serving a sentence one month 

greater than the six-year sentence advised at the time of his guilty plea. 

See Patel’s Brief at 10. However, this theory of prejudice is speculative and, 

therefore, unavailing. Moreover, in claiming prejudice, Patel completely 

ignores the fact that as a result of plea negotiations, the Commonwealth 

withdrew six felony counts, and allowed Patel to plead guilty to three 

misdemeanors. See N.T., 2/21/2013 (Sentencing), at 17. In sum, Patel 

has not proven “it is reasonably probable that, but for counsel’s errors, he 

would not have pled guilty and would have gone to trial.” Timchak, supra.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/6/2015