J-S61029-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

DANA STEWART 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 3820 EDA 2017

Appeal from the PCRA Order October 30, 2017

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

No(s): CP-51-CR-0005917-2015, 

CP-51-CR-0008885-2015, CP-51-CR-0011289-2013

BEFORE: BENDER, P.J.E., BOWES, J., and PANELLA, J.

MEMORANDUM BY BOWES, J.: FILED DECEMBER 27, 2018

Dana Stewart appeals from the October 30, 2017 order denying PCRA 

relief. After thorough review, we affirm. 

On December 17, 2015, Appellant pled guilty to multiple charges filed 

at three criminal docket numbers. The first offenses were committed on 

August 22, 2013. Appellant was sitting in the driver’s seat of a parked car 

that was obstructing traffic on 65th Street in Philadelphia. Police recognized 

him and approached because they knew he did not possess a driver’s license. 

They recovered controlled substances from the vehicle. Appellant was 

charged at CP-51-CR-0011289-2013 (“No. 11289-2013”) with possession 

with intent to deliver heroin (“PWID”), and knowing and intentional possession 

of a controlled substance by a person not registered. 
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On January 27, 2015, Appellant was stopped by police for driving a car 

without headlights at 10:55 p.m. on the 5700 block of Walnut Street. He 

admitted to police that he had smoked marijuana. He also tested positive for 

morphine, codeine, oxycodone, and other controlled substances. Appellant 

was charged with driving while under the influence (“DUI”).

1

 

On January 30, 2015, while he was on bond following his January 27, 

2015 arrest, Appellant fled to avoid apprehension by police for driving without 

a license. He ran a stop sign and a red light on Leeds Street in Philadelphia. 

Police halted their pursuit because Appellant was driving dangerously. Just 

moments later, however, police spotted him on foot. As police pursued him, 

he ran, discarding a glass bottle of liquid codeine from his pocket. Appellant 

was charged at CP-51-CR-0005917-2015 (“No. 5917-2015), with recklessly 

endangering another person (“REAP”), tampering with evidence, fleeing an 

officer, and driving with a suspended license. 

Appellant was pursued by police on August 17, 2015, after they 

observed him failing to stop his vehicle at a stop sign on Brockton Road. When 

the officers activated their lights and siren, Appellant, who was driving without 

a license, fled down Lansdowne Avenue and collided with two parked cars. 

Police recovered marijuana and oxycodone from his person. Appellant was 

arrested and charged at CP-51-CR-0008885-2015 (“No. 8885-2015”) with 

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1 Although Appellant subsequently pled guilty to this DUI offense when he was 

sentenced at the other three criminal docket numbers, this conviction is not 

implicated in the instant PCRA petition. 
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fleeing an officer, knowing and intentional possession, possession of 

marijuana, and driving with a suspended license.

The three cases at Nos. 11289-2013, 5917-2015, and 8885-2015 were 

consolidated for disposition. On December 17, 2015, Appellant pled guilty to 

two counts each of fleeing from an officer, knowingly or intentionally 

possessing a controlled substance, and driving with a suspended license; and 

one count each of PWID, tampering with evidence, and possession of 

marijuana. On March 10, 2016, the court sentenced Appellant at the three 

criminal docket numbers to an aggregate sentence of three and one-half to 

seven years imprisonment followed by three years probation. Appellant also 

pled guilty to the additional charge of driving while under the influence 

(“DUI”), flowing from his January 27, 2015 arrest, and the court sentenced 

him to ninety days to six months imprisonment to run concurrently with the 

prior sentence. 

Appellant filed a timely post-sentence motion seeking reconsideration of 

his sentence, which the court denied. He did not file a direct appeal. Appellant 

filed the instant PCRA petition, his first, on March 3, 2017, and counsel was 

appointed. Counsel filed an amended petition alleging that trial counsel was 

ineffective in failing to ensure that the written and oral colloquies were 

adequate to apprise Appellant of the maximum penalties, the nature of the 

offenses, the facts as they related to the offenses, the meaning of an open 

plea, and that the court made the written guilty plea colloquies part of the 

sentencing record. The Commonwealth moved to dismiss the petition. After 
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a hearing on the Amended Petition on October 30, 2017, the court dismissed 

the petition. 

Appellant presents two issues for our review:

1. Did the lower court err in denying [Appellant’s] Amended 

Petition for Relief under the Post-Conviction Relief Act, alleging 

the ineffectiveness of counsel where trial counsel failed to 

ensure that [Appellant’s] guilty plea was knowing, voluntary 

and intelligent, which, in the circumstances of the case, so 

undermined the truth-determining process that no reliable 

adjudication of guilt or innocence could have taken place? 

2. Did the lower court err in denying [Appellant’s] Amended 

Petition for Relief under the Post-Conviction Relief Act, where 

trial counsel’s errors caused an involuntary plea, constructively 

denying [Appellant] the representation of counsel in the 

proceedings?

Appellant’s brief at 2. 

In reviewing the denial of PCRA relief, we must decide whether the PCRA 

court’s factual determinations are supported by the record and free of legal 

error. Commonwealth v. Brown, 2018 Pa. LEXIS 5489, *32-33 (Pa. 2018) 

(citing Commonwealth v. Spotz, 18 A.3d 244, 259 (Pa. 2011)). In 

conducting our review, we view the PCRA court’s findings and the evidence of 

record in a light most favorable to the winner at the trial level, herein, the 

Commonwealth. Id. We apply a de novo standard of review to the PCRA 

court’s legal conclusions. Id. In sum, we will not disturb a PCRA court’s ruling 

if it is supported by evidence of record and is free of legal error. 

Commonwealth v. Rykard, 55 A.3d 1177, 1183 (Pa.Super. 2012). 
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Appellant’s claims challenge the effectiveness of plea counsel. The 

following principles inform our review. Counsel is presumed to have rendered 

effective assistance, and the appellant bears the burden of proving 

ineffectiveness. Commonwealth v. Rivera, 10 A.3d 1276, 1279 (Pa.Super. 

2010). To meet this burden, the appellant must plead and prove by a 

preponderance of the evidence that: “(1) his underlying claim is of arguable 

merit; (2) the particular course of conduct pursued by counsel did not have 

some reasonable basis designed to effectuate his interests; and (3) but for 

counsel’s ineffectiveness, there is a reasonable probability that the outcome 

of the challenged proceeding would have been different.” Commonwealth 

v. Johnson, 179 A.3d 1153, 1158 (quoting Commonwealth v. Fulton, 830 

A.2d 567, 572 (Pa. 2003)). Failure to satisfy any prong of the test will result 

in rejection of the appellant’s ineffective assistance of counsel claim. Id. 

Where, as here, a defendant enters a guilty plea, our law presumes that 

he was aware of what he was doing. Commonwealth v. Pollard, 832 A.2d 

517, 523 (Pa.Super. 2003) (internal citation omitted). The defendant “bears 

the burden of proving otherwise.” Id. Moreover, in order to prove prejudice 

for purposes of ineffectiveness, a defendant would have to show that, but for 

counsel’s alleged errors, he would not have pled guilty and would have 

proceeded to trial. Commonwealth v. Timchak, 69 A.3d 765, 770 

(Pa.Super. 2013) (“[W]ith regard to the prejudice prong, where an appellant 

has entered a guilty plea, the appellant must demonstrate it is reasonably 
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probable that, but for counsel’s errors, he would not have pleaded guilty and 

would have gone to trial.”). 

Preliminarily, we note that Appellant did not allege that his plea was 

unknowing or involuntary due to plea counsel’s ineffectiveness. Rather, he 

claimed that plea counsel “failed to ensure” that the guilty plea colloquy was 

adequate to inform him of the charges to which he was pleading guilty, their 

maximum penalties, the facts underlying the charges, the meaning of an open 

plea, and that the written colloquies were made part of the record. He points 

to perceived deficiencies in the oral and written colloquies. For instance, he 

avers that PWID carried a maximum sentence of fifteen years, not ten years, 

as represented in the written colloquy at No. 11289-13. The oral colloquy, 

Appellant contends, did not articulate the charges, the elements of the 

offenses, the sentencing ranges, nor the fact that the plea was not negotiated 

as to sentence. 

In the case at No. 5917-2015, although the written colloquy identified 

the charges and the maximum penalties, Appellant contends that there was 

no indication that there was a plea bargain except the handwritten word 

“Open.” He complains that the court did not articulate the charges, the 

sentencing ranges, or the fact that the sentence was not negotiated at the 

oral colloquy. 

In the case at No. 8885-2015, Appellant alleges that the written colloquy 

form denotes a plea to fleeing police and tampering, but mistakenly reflects a 
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maximum sentence of twenty-nine years rather than nine years. 

Furthermore, while it is noted on the written colloquy that the plea is “Open,” 

Appellant complains that the term was not defined. Finally, according to 

Appellant, the written colloquies were not referred to by the court or made 

part of the record. 

The PCRA court reasoned that “[t]he relevant inquiry in evaluation of 

[Appellant’s] PCRA claims is whether his plea was knowing, intelligent, and 

voluntary, not whether the colloquies given were technically defective.” Trial 

Court Opinion, 1/10/18, at 4 (citing Commonwealth v. Moore, 528 A.2d 

1364 (Pa.Super. 1987). The court noted further that Appellant did not allege 

that he was unaware of the elements of the crimes charged, the maximum 

penalties, or the open nature of his guilty pleas. Id. at 5. Thus, the court 

reasoned, Appellant could not establish that his underlying claims had 

arguable merit or that he was prejudiced by counsel’s actions. The court 

concluded that Appellant “failed to present any issues of merit in his PCRA 

petition, and . . . the issues he presented would not show prejudice to him if 

they were to have merit.” PCRA Court Opinion, 1/10/18, at 7. 

The record supports the PCRA court’s findings. “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.” Commonwealth v. Kelley, 136 A.3d 1007, 

1012-13 (Pa.Super. 2016) (quoting Commonwealth v. Moser, 921 A.2d 
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526, 531 (Pa.Super. 2007)). See also Commonwealth v. Morrison, 878 

A.2d 102, 105 (Pa.Super. 2005) (en banc) “The standard for post-sentence 

withdrawal of guilty pleas dovetails with the arguable merit/prejudice 

requirements for relief based on a claim of ineffective assistance of plea 

counsel, . . . under which the defendant must show that counsel’s deficient 

stewardship resulted in a manifest injustice, for example, by facilitating entry 

of an unknowing, involuntary, or unintelligent plea.”). 

Appellant devotes his argument on appeal to alleged defects in the guilty 

plea colloquies and contends that an insufficient guilty plea colloquy is per se

ineffectiveness. Appellant’s brief at 9. That is not the law, however. In order 

to be entitled to relief on ineffectiveness grounds, Appellant was required to 

plead and prove that counsel’s ineffectiveness caused an involuntary or 

unknowing plea. See e.g., Commonwealth v. Fowler, 893 A.2d 758, 765

(Pa.Super. 2006) (affirming denial of PCRA relief where appellant pled that his 

guilty plea was involuntary and unknowing because it was improperly induced 

by counsel’s promise and assurance that he would not receive the statutory 

maximum). 

Appellant does not allege that his plea was unknowing and involuntary,

let alone plead or prove that counsel’s ineffectiveness caused it. Moreover, 

Appellant does not aver that he was unaware of the elements of the crimes to 

which he pled guilty or the maximum penalties for those crimes. 

Conspicuously absent is any allegation that he was prejudiced by plea 
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counsel’s alleged failures, i.e., that but for counsel’s ineffectiveness he would 

not have entered the guilty pleas. Where, as here, a petitioner cannot meet 

the prejudice prong, the petition may be dismissed on that basis alone. 

Commonwealth v. Baker, 614 A.2d 663 (Pa. 1992). 

Nor do we find any arguable merit in Appellant’s claims. The written 

guilty plea colloquies he signed are part of the record. Written plea colloquies 

that are read, completed, signed by the defendant and made part of the record 

function as a plea colloquy when supplemented by an oral, on-the-record 

examination.2 See Morrison, supra at 108 (summarizing Comment to 

Pa.R.Crim.P. 590). Appellant acknowledged in the written colloquies that he 

had committed the crimes enumerated, that his “lawyer told [him] what the 

elements of the crime(s) are that the District Attorney must prove to 

convict[,]” the length of possible jail time for the offenses, and the highest 

permissible fine. The colloquies expressly state that there is no 

recommendation as to sentence, and the additional handwritten notation 

“Open” merely confirmed that fact. The written colloquies informed Appellant 

of his pretrial rights, his rights at trial, his right to a jury trial, and explained 

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2 The law is well settled that “[a] valid plea colloquy must delve into six areas: 

1) the nature of the charges, 2) the factual basis of the plea, 3) the right to a 

jury trial, 4) the presumption of innocence, 5) the sentencing ranges, and 6) 

the plea court's power to deviate from any recommended sentence.” 

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

banc); see also Comment to Pa.R.Crim. P. 590(A)(2). The sixth factor was 

not implicated herein as there was no agreement as to sentence. The oral 

and written plea colloquies addressed the five remaining areas. 
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what rights he was giving up by pleading guilty. Appellant acknowledged that 

he was satisfied with his lawyer, that the facts of his case had been read to 

him, that the crimes and elements had been explained to him, and that he 

committed the crimes. He signed the form acknowledging that he understood 

and that all of his answers were true and correct. Defense counsel, the District 

Attorney, and the judge certified that Appellant acknowledged his 

understanding of the guilty plea, and that he was entering it of his own free 

will. 

It has long been the law that omissions or defects in an oral guilty plea 

colloquy will not render the plea invalid, “if the circumstances surrounding the 

entry of the plea disclose that the defendant had a full understanding of the 

nature and consequences of his plea and that he knowingly and voluntarily 

decided to enter the plea”). Commonwealth v. Eichinger, 108 A.3d 821, 

832 (Pa. 2014) (quoting Commonwealth v. Yeomans, 24 A.3d 1044, 1047 

(Pa.Super. 2011)). The Commonwealth concedes that the written guilty plea 

colloquy for No. 11289-13 mistakenly stated that the maximum penalty for 

PWID was ten years instead of fifteen years imprisonment. However, as the 

plea court reasoned, and the Commonwealth asserts herein, Appellant cannot 

establish prejudice by proving that he pled guilty to avoid a sentence that was 
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five years less than the one he actually faced. Commonwealth’s brief at 12.3 

Furthermore, although the written colloquy on the fleeing police and 

tampering with evidence charges initially indicated a maximum sentence of 

“2” years, it was corrected to reflect a maximum of “9” years imprisonment. 

While complaining that the new number looked like “29” years, Appellant did 

not allege that he was misled by the correction. 

Finally, Appellant complains that the word “Open” appears on the 

written colloquy form, but the term is not explained therein. Nonetheless, 

Appellant does not contend that he did not understand its meaning, or that he 

entered his guilty plea believing there was a sentencing agreement. We note 

that the written colloquy forms also indicated that there were no agreements 

as to sentence. Furthermore, it is clear from the discussions both at the plea 

hearing and at sentencing that there was no agreement as to sentence. 

In addition to the written colloquies, the court conducted an oral 

colloquy on the record. After Appellant was placed under oath, he verified 

that he could understand English, that he was not under the influence of drugs 

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3 Nor can Appellant satisfy the arguable merit prong of the ineffectiveness test 

simply by pointing out a mistake that was immaterial. See Commonwealth 

v. Barbosa, 819 A.2d 81, 82 (Pa.Super. 2003) (holding that only if 

misinformation about the maximum possible sentence was material to 

defendant’s decision to enter a guilty the plea could the plea could be 

withdrawn); see also Commonwealth v. Warren, 84 A.3d 1092, 1096 

(Pa.Super. 2014) (suggesting that a guilty plea based on information that the 

potential maximum sentence is less than what the defendant could actually 

receive is not a material defect that would permit him to withdraw his plea 

unless he received a sentence greater than what he was told). 
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or alcohol, and that he did not suffer from any mental illness. The court 

advised Appellant that he could have a jury trial, and explained what that 

would entail. Appellant confirmed that no one had threatened him or promised 

him anything in return for the pleas. The Commonwealth’s attorney 

summarized the facts underlying the offenses and outlined the 

Commonwealth’s proof. The court asked Appellant how he pled to each 

offense, and in every instance, he stated “guilty.” The court accepted the 

pleas, and ordered both a presentence investigation and mental health 

evaluation prior to sentencing.

4

 

The amended PCRA petition simply contains no allegation that Appellant 

was in fact unaware of the elements of the crimes, the maximum penalties, 

or the fact that his sentence was not negotiated. He did not plead that he 

entered an unknowing and involuntary plea. Hence, it necessarily follows that 

Appellant failed to plead and prove that he entered an unknowing or 

unintelligent plea as a consequence of any ineffectiveness on the part of 

counsel. No relief is due.

Order affirmed. 

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4 At sentencing on March 10, 2016, the court questioned Appellant again 

regarding his ability to understand English, his mental health, and sobriety. 

In addition, the Commonwealth repeated the factual bases for the pleas, and 

again ascertained how Appellant wished to plead. Defense counsel discussed 

the applicable sentencing guidelines and urged the court to enter a belowmitigated-range county sentence with immediate parole. 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/27/18