J-S79020-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

MICHAEL BIVANS

Appellant No. 583 EDA 2016

Appeal from the PCRA Order January 29, 2016

In the Court of Common Pleas of Montgomery County

Criminal Division at No(s): CP-46-CR-2370-2013

BEFORE: GANTMAN, P.J., MOULTON, J., and MUSMANNO, J.

MEMORANDUM BY MOULTON, J.: FILED NOVEMBER 23, 2016

Michael Bivans appeals, pro se, from the January 29, 2016 order of the 

Court of Common Pleas of Montgomery County dismissing his petition filed 

pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-

9546. We affirm.

On September 24, 2014, Bivans entered an open guilty plea to three 

counts of robbery (threatening serious bodily injury), one count of burglary 

(home with person present), and one count of criminal conspiracy to commit 

robbery (threatening serious bodily injury).1 After conducting an oral 

colloquy of Bivans and incorporating his eight-page written colloquy into the 

record, the trial court accepted Bivans’ guilty plea. N.T., 9/24/14, at 3-9. 

____________________________________________

1 18 Pa.C.S. §§ 3701(a)(1)(ii), 3502(a)(1), and 903(a), respectively.
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On December 15, 2014, the trial court sentenced Bivans to concurrent terms 

of 8 to 20 years’ incarceration for each robbery conviction, 6 to 20 years’ 

incarceration for the burglary conviction, and 6 to 20 years’ incarceration for 

the conspiracy conviction. N.T., 12/15/14, at 26.

On January 13, 2015, Bivans filed a pro se motion to withdraw his 

guilty plea, asserting his innocence and alleging that the Commonwealth had 

agreed that he would be sentenced to 2 to 4 years’ incarceration on each 

robbery conviction in exchange for his guilty plea. After a hearing on 

February 4, 2015, the trial court denied this motion.2 Bivans did not file an 

appeal but filed a pro se PCRA petition on October 14, 2015, claiming that 

he entered his plea under duress and received ineffective assistance of 

counsel because his counsel failed to move to suppress incriminating 

evidence, confront witnesses, or object to the trial court’s “illegal mandatory 

minimum sentence” on the robbery convictions.

On November 9, 2015, the PCRA court appointed counsel, who filed a 

motion for leave to withdraw and a Turner/Finley3letter on December 29, 

2015. On January 5, 2016, based on PCRA counsel’s representations and 

the PCRA court’s independent review of the record, the PCRA court granted 

____________________________________________

2 Bivans also orally requested reconsideration of his sentence, which 

the trial court denied.

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

Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).
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counsel leave to withdraw. That same day, the PCRA court issued a notice 

of intent to dismiss Bivans’ PCRA petition pursuant to Pennsylvania Rule of 

Criminal Procedure 907, to which Bivans responded on January 26, 2016. 

The PCRA court dismissed the petition on January 29, 2016. On February 

12, 2016, Bivans timely appealed.

Bivans raises the following issues on appeal:

1. Being that [Bivans] filed on January 13, 2015, a motion to 

withdrawl [sic] guilty plea, Did the Honorable Court ERR in 

not granting motion to withdrawl [sic]?

2. Did the Trial Court ERR in using [Bivans’] Juvenile record. 

Being that [Bivans’] prior record score was in fact a record 

score of -0- Did the Trial Court give [Bivans] a mandatory 

minimum sentence of 8 years to 20 years?

3. Being that [Bivans] has newly discovered evidence, Did

Trial Court ERR in dismissing [Bivans’] PCRA?

Bivans’ Br. at 7.

“Our standard of review from the grant or denial of post-conviction 

relief 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). “We 

will not disturb findings that are supported by the record.” Commonwealth 

v. Yager, 685 A.2d 1000, 1003 (Pa.Super. 1996) (en banc). 
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Bivans advances two4allegations of ineffective assistance of counsel: 

(1) counsel failed to file a motion to suppress certain evidence, which caused 

him to enter a guilty plea under duress, and (2) counsel induced Bivans to 

enter a guilty plea, thus preventing Bivans from confronting witnesses. 

Before addressing Bivans’ issues, we must first address the Commonwealth’s 

contention that Bivans has waived his ineffective assistance of counsel 

claims because he pled guilty to his crimes, “thus obviating the need for a 

trial in the first place, and therefore waiving his right to raise these 

challenges.” Cmwlth.’s Br. at 6. According to the Commonwealth, after a 

defendant enters a guilty plea, “the only legally cognizable issues in a postconviction proceeding are those which affect either the voluntariness of the 

guilty plea or the legality of the sentence.” Id. (quoting Commonwealth v. 

Casner, 461 A.2d 324, 325 (Pa.Super. 1983)). The Commonwealth argues 

that because Bivans’ ineffective assistance of counsel claims do not 

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4

In his PCRA petition and appellate brief, Bivans attempts to raise an 

after-discovered evidence claim by way of an ineffective assistance of 

counsel claim, arguing that his counsel was ineffective for failing to call 

Bivans’ co-defendant to the stand. Bivans claims his co-defendant’s 

testimony would have allegedly “prove[d] [Bivans] had nothing to do with 

[the] alleged crime.” Bivans’ Br. at 11, 13. However, in his petition and 

brief, Bivans failed to allege any of the four elements required to establish 

an after-discovered evidence claim. See Commonwealth v. D’Amato, 856 

A.2d 806, 823 (Pa. 2004). Therefore, Bivans has waived this claim. See

Commonwealth v. Johnson, 985 A.2d 915, 924 (Pa. 2009) (“[W]here an 

appellate brief fails to provide any discussion of a claim with citation to 

relevant authority or fails to develop the issue in any other meaningful 

fashion capable of review, that claim is waived”).
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challenge the voluntariness of his guilty plea, he has waived these claims. 

Id.

Generally, a PCRA court may review guilty pleas only where the 

petitioner claims the plea was unlawfully induced. However, this Court has 

stated that “all constitutionally cognizable claims of ineffective assistance of 

counsel may be reviewed under the PCRA.” Commonwealth v. Lynch, 820 

A.2d 728, 731 (Pa.Super. 2003) (quoting Commonwealth ex rel. Dadario 

v. Goldberg, 773 A.2d 126, 130 (Pa. 2001)). Construing Bivans’ petition 

and brief liberally, we understand Bivans to argue that he entered a plea 

under duress because of counsel’s ineffective assistance, which is a claim 

cognizable under Section 9543(a)(2)(ii). Accordingly, we will address the 

merits of this claim.

“[T]o be entitled to relief on a claim of ineffective assistance of 

counsel, the PCRA petitioner must plead and prove by a preponderance of 

the evidence that (1) the underlying claim has arguable merit; (2) counsel 

whose effectiveness is at issue did not have a reasonable basis for his action 

or inaction; and (3) the PCRA petitioner suffered prejudice as a result of 

counsel's action or inaction.” Commonwealth v. Steele, 961 A.2d 786, 

796 (Pa. 2008). “Allegations of ineffectiveness in connection with the entry 

of a guilty plea will serve as a basis for relief only if the ineffectiveness 

caused appellant to enter an involuntary or unknowing plea.” 

Commonwealth v. Allen, 732 A.2d 582, 587 (Pa. 1999). “In determining 

whether a guilty plea was entered knowingly and intelligently, a reviewing 
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court must review all of the circumstances surrounding the entry of that 

plea.” Id.

Here, Bivans asserts that his counsel induced him to enter an 

involuntary plea. The PCRA court aptly analyzed the merits of Bivans’ 

involuntariness claim as follows:

In this case, the colloquies, both oral and written were 

extensive and covered all of the areas required by law. At 

the time of the colloquy, Bivans was 25 years of age and 

had obtained a GED. Bivans denied being under the 

influence of drugs or alcohol. He also denied that anyone 

had forced him to plead guilty. He affirmed that he was 

entering a guilty plea of his own free will. He also denied 

that anyone had made any threats that would cause him to 

plead guilty. Bivans acknowledged that he understood the 

maximum penalties for his crimes and that he was giving 

up his right to have a trial by jury. Further, Bivans agreed 

to the facts as set forth by the Commonwealth. Moreover, 

Bivans understood the nature of the charges he pleaded 

guilty to, that he is presumed innocent until proven guilty 

and of the permissible range of sentences and fines for the 

offenses charged.

Bivans’ assertion in his PCRA petition that he entered his 

guilty plea under duress, it is completely belied by both his

testimony in court and his affirmations in his written guilty 

plea colloquy. Bivans is bound by the statements he made 

at that time. Commonwealth v. Brown, 48 A.3d 1275, 

1277 (Pa.Super. 2012) (A defendant is bound by the 

statements made during the plea colloquy, and a 

defendant may not later offer reasons for withdrawing the 

plea that contradict statements made when he pled.).

Trial Court Opinion, 4/5/16, at 6-7 (“1925(a) Op.) (record citations omitted). 

The PCRA court’s determination is supported by the record and free of legal 

error.
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Independent of his ineffective assistance of counsel claims, Bivans also 

argues that the trial court erred in denying his motion to withdraw his guilty 

plea. To be eligible for PCRA relief, “a petitioner must plead and prove,” 

among other things, “that the allegation of error has not been previously 

litigated or waived.” 42 Pa.C.S. § 9543(a)(3). A petitioner waives an 

allegation of error where he “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.” Id. § 9544(b) (emphasis added). Bivans raised 

an issue regarding the validity of his guilty plea before the trial court, but 

failed to file a direct appeal. Because Bivans could have raised this issue on 

direct appeal from his judgment of sentence, see Commonwealth v. 

Whittaker, 436 A.2d 1207, 1208 (Pa.Super. 1981), he has waived his right 

to challenge it on collateral review.

Bivans next raises two sentencing issues. First, he argues that the 

trial court miscalculated his prior record score by inappropriately including 

Bivans’ juvenile adjudications of delinquency. In the argument section of his 

brief, Bivans frames this issue as an ineffective assistance of counsel claim, 

arguing that his counsel failed to object to the calculation of the prior record 

score. Bivans’ Br. at 11-12. The Commonwealth argues that Bivans’ claim 

is a discretionary aspect of sentencing claim, which is not cognizable under 

the PCRA. Cmwlth.’s Br. at 7. We agree with the Commonwealth.

It is well settled that a challenge “to the calculation of the Sentencing 

Guidelines raises a question of the discretionary aspects of a defendant’s 
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sentence.” Commonwealth v. O’Bidos, 849 A.2d 243, 253 (Pa.Super. 

2004) (quotation omitted). Further, “[c]hallenges to the discretionary 

aspects of sentencing are not cognizable under the PCRA.” Commonwealth 

v. Fowler, 930 A.2d 586, 593 (Pa.Super. 2007). Bivans’ claim of ineffective 

assistance of counsel for failing to object to his prior record score also fails. 

This Court recently upheld the use of juvenile adjudications in calculating an 

adult offender’s prior record score. Commonwealth v. Bonner, 135 A.3d 

592, 606 (Pa.Super.), app. denied, 145 A.3d 161 (Pa. 2016). Accordingly, 

this claim lacks merit.

Bivans also argues that the trial court imposed an illegal mandatory 

minimum sentence. According to Bivans, the trial court sentenced him 

pursuant to 42 Pa.C.S. § 9712, a now-unconstitutional statute5that 

mandated higher minimum sentences for persons who committed a crime of 

violence while visibly possessing a firearm that placed the victim in 

reasonable fear of death or serious bodily injury. Bivans’ Br. at 14. Because 

Section 9712 was declared unconstitutional in the wake of Alleyne v. 

United States, 133 S.Ct. 2151 (2013), Bivans argues that his sentence is 

illegal. Bivans’ Br. at 16, 19. We disagree.

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5 This Court declared Section 9712 unconstitutional in 

Commonwealth v. Valentine, 101 A.3d 801 (Pa.Super. 2014), app. 

denied, 124 A.3d 309 (Pa. 2015).
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The Commonwealth did not seek, and the trial court did not apply, a 

mandatory minimum sentence. See 1925(a) Op. at 7-8. Rather, the trial 

court sentenced Bivans in the aggravated range of the Sentencing 

Guidelines, and the Guidelines calculation sheets show possible consideration 

of the deadly weapon enhancement. Further, as the Commonwealth points 

out, the trial court applied a discretionary minimum sentence of eight years’ 

incarceration, well beyond the mandatory minimum sentence of five years’ 

incarceration in Section 9712. Because Bivans was not sentenced pursuant 

to Section 9712, or any other mandatory minimum sentencing statute, he is 

not entitled to relief. 

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/23/2016