J-S33034- 14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v. DANIEL FRANCIS Appellant No. 3135 EDA 2013

Appeal from the PCRA Order dated October 11 , 2013 In the Court of Common Pleas of Northampton County Criminal Division at No: CP

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- CR -0000245-2008
BEFORE: FORD ELLIOTT, P.J.E., OLSON, and STABILE, JJ. MEMORANDUM BY STABILE, J.: FILED SEPTEMBER 22, 2014 Appellant Daniel Francis appeals from an order of the Court of Common Pleas of Northampton County (PCRA court), which denied his request for relief under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-46. Upon review, we affirm. The facts underlying this appeal are undisputed. As the PCRA court recounted: On December 18, 2007, the Bethlehem Police Department charged [Appellant] with . . . felonious theft and fr aud[.] [Appellant’s] locati on was unknown at the time. Consequently, about five (5) years passed before [Appellant] was arr ested on these charges. . . . On September 13, 2012, [Appellant] entered a guilty plea . . . to one (1) count of theft as a F3. [ 1] The [p]resentence

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1 In exchange for this plea, the Commonwealth withdre w the charges against Appellant for theft by failure to make requ ired disposition of funds received (18 Pa.C.S. § 3927), receiving stolen propert y (18 Pa.C.S. § 3925), (Footnote Continued Next Page)J-S33034- 14

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[i]nvesti gation report (“PSI”) indicated that [Appellant] had made a series of unverified representations to his Proba tion Officer, Bernard Mikulski, and his appointed counsel, J oseph Yannuzzi, Esquire. For example, the PSI indicated t hat [Appellant] claimed to have acquired a Bachelor of Ar ts degree from DeSales University and to have had a significant h istory of employment with income of approximately $60,000 to $ 80,000 per year. [Appellant] reiterated these assertions to [the PCRA co urt] during his PCRA evidentiary hearing on July 12, 2013 . However, P.O. Mikulski testified that the Registrar at DeSales University had no record of [Appellant]. In addition, neither P.O. Mikulski nor Attorney Yannuzzi could verify the information r egarding [Appellant’s] employment history. The PSI also established that [Appellant] had an extensive criminal history of fraud , theft, and controlled substance charges spanning two decades and three states. The [trial court] sentenced [Appellant] to eighteen (1 8) to thirty-six (36) months in state prison, followed by for ty-eight (48) months of probation. . . . Thereafter, [Appellant] filed a timely pro se PCRA petition alleging Attorney Yannuzzi’s ineffective assistance of co unsel at his guilty plea and sentencing hearings. Specifically, [Appellant] asserted that Attorney Yannuzzi was ineffective for f ailing to assert a violation of his rights to a speedy trial pursu ant to Pa.R.Crim.P. 600. The [PCRA court] appointed Robert Sletvold, Esquire, to represent [Appellant] in this PCRA matter. PCRA Court Opinion, 10/11/13, at 1-3 (footnote omit ted). On December 19, 2013, the PCRA court issued an opinion in accordance w ith Pa.R.A.P. 1925(a), which rejected as meritless Appellant’s ineffecti veness of counsel claims. 2 With regard to the issue of ineffective assistance of cou nsel at the time of guilty plea, the PCRA court concluded:

(Footnote Continued) _______________________ deceptive or fraudulent business practices (18 Pa.C.S. § 4 107(a)(8)(iv)), and misapplication of entrusted property and property of government or financial institutions (18 Pa.C.S. § 4113(a)). 2 In its 1925(a) opinion titled “statement,” the PCRA cour t incorporated by reference its October 11, 2013 opinion.J-S33034- 14

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[T]he record establishes that the [trial court] engaged in an extensive colloquy [ 3] with [Appellant] during his guilty plea hearing. The [trial court] asked [Appellant] whether he understood that (a) this was a guilty plea proceeding; (b) he was essentially convicting himself; (c) he had negotiated a guilty plea on the felony theft charge in exchange for the Commo nwealth dropping other charges against him; (d) he was satisfied with Attorney Yannuzzi’s representation; (e) he was aware of his right to go to trial; and (f) he elected to accept the nego tiated plea instead of going to trial. [Appellant] answered each question affirmatively. [As a result,] the unequivocal nature of these responses conclusively establish[] the knowing and voluntar y nature of his guilty plea.
Id. at 3-4. Addressing the ineffectiveness claim relating to Rule 600, the PCRA court reasoned: [T]he record establishes that Attorney Yannuzzi discussed t he possibility of pursuing a Rule 600 violation with [App ellant] prior to the entry of his plea. Apparently, they decided t o forgo this course of action in favor of a potential mitigated sent ence based on [Appellant’s] payment of significant restitution. [Appellant] foreclosed this opportunity by failing to make any rest itution payments.
Id. On appeal, 4 Appellant repeats the arguments contained in his Rule 1925(b) statement. He argues that the PCRA court erre d in determining

____________________________________________ 3 It is unclear whether the PCRA court refers to the gu ilty plea hearing transcript (oral colloquy) or the written colloquy cont ained in the original record here.
4 Our review of a PCRA court order dismissing a petitio n under the PCRA is subject to the following standard: We review an order dismissing a petition under the PCR A in the light most favorable to the prevailing party at the PCRA level. This review is limited to the findings of the PCRA cou rt and the evidence of record. We will not disturb a PCRA court’s ruling if it is supported by evidence of record and is free of legal error. This Court may affirm a PCRA court’s decision on any gro unds if the record supports it. We grant great deference to th e factual findings of the PCRA court and will not disturb those findings unless they have no support in the record. However, we afford (Footnote Continued Next Page)J-S33034- 14

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that his trial counsel was not ineffective for failing to raise a Rule 600 objection and advising Appellant to plead guilty.
As we have long noted: It is well-settled that counsel is presumed effective, and to rebut that presumption, the PCRA petitioner must demonstrat e that counsel’s performance was deficient and that such deficiency prejudiced him. Strickland v. Washington , 466 U.S. 668, 687

– 91[] (1984). This Court has described the Strickland standard as tripartite by dividing the performance ele ment into two distinct components. Commonwealth v. Pierce , [] 527 A.2d 973, 975 ([Pa.] 1987). Accordingly, to prove trial counsel ineffective, the pet itioner must demonstrate that: (1) the underlying legal issue has arguable merit; (2) counsel’s actions lacked an objective reasonable basis; and (3) the petitioner was prejudice d by counsel's act or omission. Id

. Commonwealth v. Busanet , 54 A.3d 35, 45 (Pa. 2012); see also Commonwealth v. Philistin , 53 A.3d 1, 10 (Pa. 2012) (“[C]ounsel is presumed effective, and [appellant] bears the burden o f proving otherwise.”). Failure to prove any prong of [the Pierce ] test will defeat an ineffectiveness claim. Commonwealth v. Basemore , [] 744 A.2d 717, 738 n. 23 ([Pa.] 2000). Counsel cannot be deemed ineffective for failing to raise a meritless claim. Commonwealth v. Jones , [] 912 A.2d 268, 278 ([Pa.] 2006). Additionally, we only inquire whether counsel had any reasonable basis for his actions, not if counsel pursued the best available option. [ Commonwealth v. ] Steele , [961 A.2d 786,] 797 [(Pa. 2008)].

(Footnote Continued) _______________________ no such deference to its legal conclusions. Further, whe re the petitioner raises questions of law, our standard of rev iew is de novo and our scope of review is plenary. Commonwealth v. Rykard , 55 A.3d 1177, 1183 (Pa. Super. 2012) (quotation and internal citations omitted), appeal denied , 64 A.3d 631 (Pa. 2013).J-S33034- 14

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Philistin , 53 A.3d at 10. Also, as our Supreme Court has expla ined: With regard to the second, i.e., the “reasonable basis” prong, we will conclude that counsel's chosen strategy lacked a reason able basis only if [a]ppellant proves that “an alternative n ot chosen offered a potential for success substantially greater than the course actually purs ued.” [ 5] [ Commonwealth v. ] Cox , [983 A.2d 666,] 678 [(Pa. 2009)] (quoting Commonwealth v. Williams , [] 899 A.2d 1060, 1064 (2006)). To establish the third prong, Appellant must show that there is a reaso nable probability that the outcome of the proceedings would have been different but for counsel’s action or inaction. Commonwealth v. Dennis , [] 950 A.2d 945, 954 (2008).
Commonwealth v. Hutchinson , 25 A.3d 277, 285 (Pa. 2011). With the above principles in mind, we now evaluate Ap pellant’s claim that his trial counsel was ineffective for failing to ra ise a Rule 600 objection to the complaint filed against him. Specifically, App ellant contends that 1732 days had passed between the filing of the complain t against him (December 18, 2007) and his tendering of the guilty plea (September 13, 2012), and that “the Commonwealth offered no eviden ce whatsoever that a Rule 600 challenge was meritless.” Appellant’s Brief at 18. To begin our ineffectiveness of counsel analysis, we must determine whether Appellant meets the first prong of the Pierce test

— i.e. , arguable
merit

— by establishing a valid Rule 600 claim. Rule 600 pro vides that a defendant on bail is entitled to have trial commence no later than 365 days

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5 “To sustain a claim of ineffectiveness, Appellant must pr ove that the strategy employed by trial counsel was so unreasonable th at no competent lawyer would have chosen that course of conduct.” Commonwealth v. Chmiel , 889 A.2d 501, 540-41 (Pa. 2005).J-S33034- 14

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after the complaint date. See Pa.R.Crim.P. 600(A)(3). 6 When computing the number of pretrial days attributable to the Comm onwealth under this rule, certain delays are excluded, such as those occasioned by defense postponements, by express defense waivers of Rule 600, by the unavailability of the defendant or defense counsel, an d/or b y the fact that the defendant could not be located and apprehended

. See Pa.R.Crim.P. 600(C) (emphasis added). Rule 600(C) also excludes “the period of time between the filing of the written complaint and the defendant’s arrest , provided that the defendant could not be apprehended , because his or her whereabouts were unknown and could not be determined by due diligence[.]” Pa.R.Crim.P. 600(C)(1). At any time prior to trial, a defendant may move f or dismissal of the case if Rule 600 has been violated. See Pa.R.Crim.P. 600(G). However, even when the defendant has not been tried within 36 5 days, and even when those days appear to be attributable to the Comm onwealth, a Rule 600 motion shall nevertheless be denied if the Commonw ealth proves that it acted with due diligence in attempting to try the def endant timely and that the circumstances occasioning the delay were beyond the Co mmonwealth’s

____________________________________________ 6 We note that amendments to Rule 600 were adopted on October 1, 2012, and came into effect on July 13, 2013. This proceeding , however, is governed by the previous version of Rule 600, which wa s in effect prior to July 13, 2013.J-S33034- 14

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control. See Commonwealth v. Frye , 909 A.2d 853, 858 (Pa. Super. 2006); see also Pa.R.Crim.P. 600(G). Due diligence is a fact-specific concept to be determined on a case- by

case basis. See Commonwealth v. Ramos , 936 A.2d 1097, 1102 (Pa. Super. 2007). Although due diligence does not demand perfection, it does require the Commonwealth to put forth a reasonable e ffort. See id. For example, due diligence requires the Commonwealth to e mploy a recordkeeping system to keep track of its cases so that they are prosecuted within the time requirements of the law. See Commonwealth v. Browne , 584 A.2d 902, 906 (Pa. 1990). The failure to employ a diary or other recordkeeping system shows a lack of due diligence. Id. A meritorious Rule 600 motion would result in dismissal of the charges against Appellant. See Pa.R.Crim.P. 600(G). Accordingly, prejudice will be established upon a showing of a meritorious claim. See Commonwealth v. Lynn , 815 A.2d 1053, 1056 (Pa. Super. 2003). We, there fore, must assess if a Rule 600 motion would have been meritorious in order to determine if trial counsel was ineffective for failing to file such a motion. Our review of the docket reveals that the Bethlehem Police department filed a complaint against Appellant on December 18, 2 007. Appellant, however, was not arrested until August 25, 2012. N.T. , PRCA Hearing, 6/5/13, at 12-13. Appellant subsequently appeared at his arraignment where he pleaded guilty to theft by unlawful taking (18 Pa.C.S. § 3921(a)(1)) on September 13, 2012. Disregarding f or a moment theJ-S33034- 14

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reasons advanced by Appellant’s trial counsel for foregoing a Rule 600 objection, we note that if the time from the date of the complaint until Appellant’s arrest was excludable under Rule 600(C)(1 ), Appellant’s adjusted run date would be calculated as expiring on August 25, 2013, and Rule 600 would have been satisfied. If, however, the time fr om the complaint until Appellant’s arrest was not excludable under Rule 600( C)(1), then Rule 600 was not satisfied, and a Rule 600 motion may have bee n meritorious. Ordinarily, upon the proper and timely filing of a Rule 600 motion, it would be the Commonwealth’s burden to establish that d ue diligence was exercised in locating and apprehending Appellant durin g the time period potentially excludable under Rule 600. The procedur al posture of this case, ho wever, is such that Appellant, upon collateral review, is attempting to demonstrate trial counsel was ineffective for failing t o file a Rule 600 motion, and thus, Appellant bears both the burdens of producti on and persuasion in demonstrating that he was prejudiced by the failure o f trial counsel to file a Rule 600 motion. See Chmiel , 889 A.2d at 540 (“The burden of proving ineffectiveness rests with Appellant.”); see also Commonwealth v. Natividad , 938 A.2d 310, 321-22 (Pa. 2007) (noting that an a ppellant bears the burden of pleading and proving each of the Pierce prongs on appeal). In his brief to this Court, Appellant reasons that h is trial counsel was ineffective “in failing to pursue a Rule 600 dismissal wh ere time that elapsed from the date of the complaint being filed, December 18, 2007, through the tendering of the guilty plea, September 13, 2012, [was] 1732 days.”J-S33034- 14

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Appellant’s Brief at 18. Additionally, Appellant a rgues that “the Commonwealth offered no evidence whatsoever that a Ru le 600 challenge was meritless.” Id. As a result, Appellant argues that he was prejudiced by b eing “prosecuted and sentenced for a crime which would hav e been dismissed if his appointed public defender had been eff ective.” Id. As explained above, the burden of proof rests with an appellant when he/she challenges a Rule 600 violation as part of his/he r ineffectiveness of counsel claim within a PCRA context. Here, Appellant d oes not develop an argument in his brief sufficient to suggest that the C ommonwealth failed to exercise due diligence in locating and apprehending him . In fact, our review of the record, including the PCRA hearing transcript, i ndicates that Appellant failed to adduce evidence as to why the Commonwealth f ailed to try him within 365 of days of the filing of the complaint. Thus, we cannot conclude from the evidence of record that the Commonwealth fai led to exercise due diligence in apprehending Appellant after the filing of the complaint. We, therefore, conclude that Appellant has failed to show t he arguable-merit prong of his claim that his trial counsel was ineffective for failing to file a Rule 600 motion. See Philistin , 53 A.3d at 10 (Failure to prove any prong of [the Pierce ] test will defeat an ineffectiveness claim).J-S33034- 14

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Appellant next argues that the PCRA court erred in co ncluding that his trial counsel was not ineffective for advising him to pl ead guilty to theft. 7 Specifically, Appellant argues only that his trial counse l “managed to convince [him] to plead guilty with an expected deal o f time served [(90 days’ imprisonment)] or, at the very least, explained to [Appellant] that litigating a meritorious constitutional violation woul d keep [Appellant] in jail longer than he would serve if [he] just pleaded guilt y.” Appellant’s Brief at 11. Consequently, Appellant argues, that his guilty p lea was not valid and that he should be permitted to withdraw the same to h ave his pretrial and trial rights reinstated.

It is clear that a criminal defendant’s right to effecti ve counsel extends to the plea process, as well as during tria l. However, allegations of ineffectiveness in connection wit h the entry of a guilty plea will serve as a basis for relief only if the

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7 To the extent Appellant argues that his trial counsel was ineffective for failing to move to withdraw the ple a agreement prior to sentencing “when it became clear that the expected sentence was not that which would be imposed,” Appellant’s Brief at 11, we must reject this a rgument as waived, because Appellant failed to raise it in his 1925(b) sta tement or in the question presented section of his brief. See Pa.R.A.P. 1925(b)(4) and 2116(a). Nonetheless, even if the issue was not waived , we still would dismiss it as lacking merit. It is settled that a trial court should grant a presentence request to withdraw a plea of guilty for any “fair and just reason,” unless granting the motion would substantially prejudice the Commonwealth. Commonwealth v. Forbes , 299 A.2d 268, 271 (Pa. 1973). Here, Appellant has failed to not only cite t o any authority in support of his argument, but also has failed develop any argu ment in his brief indicating that his guilty plea could have been withdr awn upon a fair and just reason and without substantial prejudice to the Co mmonwealth. See Pa.R.A.P. 2119(a); Commonwealth v. Charleston , __ A.3d __, 2014 WL 25575752014, at *7 (Pa. Super. June 6, 2014).J-S33034- 14

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ineffectiveness caused the defendant to enter an involu ntary 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 competen ce demanded of attorneys in criminal cases. The law does not require that the defendant be pleased with the outcom e of his decision to enter a plea of guilty: All that is requi red is that [his] decision to plead guilty be knowingly, voluntarily, a nd intelligently made. Moreover, with regard to the p rejudice 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, 769-70 (Pa. Super. 2013) (internal citation and quotation marks omitted). We determine first whether Appellant meets the second p rong of the Pierce test, i.e. , whether his trial counsel had any reasonable basis for his actions. In this regard, we observe that insofar as App ellant argues his trial counsel assured him a prison sentence of 90 days, we disagr ee. At the PCRA hearing, his trial counsel specifically testified:

I would never say it’s a ninety day sentence. That is the low end of the standard range, there’s a very good p ossibility you’ll get that if you come up with this $14,000. . . . There was no question he was going to be able to come up with t hat money. . . . That was the course. [Appellant] was goin g to plead, come up with the money, we were going to come back for sentencing, and it was going be a done deal. However in the meantime, the PSI comes back with thirteen, fourteen convictions, a prior record score of five. Every piece of information [Appellant] gave me, from his education, his employment, was all contradicted in the PSI. N.T. PCRA, 6/5/13, at 51- 52. In the words of the PCRA court, “they decided to forgo [pursuing a Rule 600 violation] in favor of a potential mitigated sentence based on [Appellant’s] payment of significant re stitution. [Appellant] foreclosed this opportunity by failing to make any restitution payments.” PCRA Court Opinion, 1/11/13, at 1 -3. Given these facts ofJ-S33034- 14

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record, the trial court did not err in concluding that Appellant’s trial counsel rendered effective assistance because he had a reasonable basis for recommending the guilty plea with the possibility of a 90-day sentence based on Appellant’s rep resentations regarding his ability to pay restitution to his victims. 8 Accordingly, because Appellant fails to meet the second Pierce prong, we need not determine whether his underlying claim had any arguable merit. 9 Nonetheless, if we were to determine the substance of his claim, that is whether his plea of guilty was valid, we would conclu de that it is devoid of any arguable merit. To be valid, a plea must be vol untary , knowing, and intelligent. Commonwealth v. Persinger , 615 A.2d 1305, 1307 (Pa. 1992). To ensure these requirements are met, Rule 590 of the Pennsylvania Rules of Criminal Procedure requires that a trial court conduct a separate inquiry of the defendant before accepting a guilty p lea. It first requires that a guilty plea be offered in open court. The rule th en provides a procedure to determine whether the plea is voluntarily, knowingly , and intelligently

____________________________________________ 8 We reject as meritless Appellant’s bald contention that his trial counsel represented to him that pleading guilty would result in a shorter sentence than litigating constitutional issues. Tellingly, Appellant does not identify in his brief any constitutional issues he allegedly forfei ted by pleading guilty. 9 We observe that Appellant does not assert any facts to e stablish that an alternative not chosen by his trial counsel offered a p otential for success substantially greater than the course actually pursued.J-S33034- 14

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entered. As the Comment to Rule 590 provides, at a m inimum, the PCRA court should ask questions to elicit the following inform ation: (1) Does the defendant understand the nature of the ch arges to which he or she is pleading guilty or nolo contendere ? (2) Is there a factual basis for the plea? (3) Does the defendant understand that he or she has th e right to trial by jury? (4) Does the defendant understand that he or she is pre sumed innocent until found guilty? (5) Is the defendant aware of the permissible range or sentences and/or fines for the offenses charged? (6) Is the defendant aware that the judge is not boun d by the terms of any plea agreement tendered unless the judge accepts such agreement? Pa.R.Crim.P. 590, Comment. 10 In Yeomans , this Court explained: In order for a guilty plea to be constitutionally val id, the guilty plea colloquy must affirmatively show that the defend ant understood what the plea connoted and its consequences. Th is determination is to be made by examining the totalit y of the circumstances surrounding the entry of the plea. Thus, ev en though there is an omission or defect in the guilty ple a colloquy, a plea of guilty will not be deemed invalid if the circumstances surrounding the entry of the plea disclose that the def endant had a full understanding of the nature and consequences of h is plea and that he knowingly and voluntarily decided to ent er the plea.
Co mmonwealth. v. Yeomans , 24 A.3d 1044, 1047 (Pa. Super. 2011) (citing Commonwealth v. Fluharty , 632 A.2d 312, 314-15 (Pa. Super. 1993)). The longstanding rule of Pennsylvania law is that a de fendant may not challenge his guilty plea by asserting that he lied while under oath, even if he avers that counsel induced the lies. A person who elects to plead guilty is bound by the stat ements he makes in open court while under oath and may not late r assert

____________________________________________ 10 The Comment also includes a seventh question, which is a pplicable only when a defendant pleads guilty to murder generally.J-S33034- 14

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grounds for withdrawing the plea which contradict the statements he made at his plea colloquy. . . . [A] defe ndant who elects to plead guilty has a duty to answer questions truthfully

. Yeomans , 24 A.3d at 1047 (emphasis added). In this regard, our review of the written and oral co lloquy does not reveal any grounds for challenging the validity of th e guilty plea. The written plea colloquy provides in pertinent parts: 7. Are you now being treated for a mental illness? No.

. . . . 9. Have you ever had any physical or mental illness t hat would affect your ability to understand your rights or affect the voluntary nature of your plea? No. 10. Are you presently taking any medications or drugs which might affect your thinking or free will? No. 11. Have you had any narcotics or alcohol in the last forty-eight (48) hours? No. 12. Have you read the information? Yes. 13. Do you understand that you are here today to en ter a plea of guilty to some or all of the charges which led to y our arrest? Yes. 14. Do you understand the nature of the charges to wh ich your pleading guilty? Yes. 15. Each crime has a number of elements or things that the Commonwealth would have to prove at trial. Has you r attorney explained to you each element of the crimes or crimes to which you are pleading guilty? Yes.

. . . . 17. Do you understand that under the United States Constitution and the Constitution of the Commonwealth of Pennsylvania, you have an absolute right to trial by jury? Yes. 18. Do you understand that the right to trial by j ury means you are able to participate in the selection of a jury wi th your attorney? Yes.

. . . . 22. In a jury trial, the jury must presume that you are innocent until proven guilty. The Commonwealth must prove yo u are guilty of each element of the crime or crimes charged ag ainst you beyond a reasonable doubt before you can be found guilty. A reasonable doubt is a doubt that would cause an ordi nary and reasonable person to hesitate before going through wit hJ-S33034- 14

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something important to him. Do you understand these t hings? Yes.

. . . . 24. Do you understand that by pleading guilty, you give up your right to a trial, either by jury or before a judge? Yes.

. . . . 27. (a) I have been told the maximum range of the sentences and/or fines that can be imposed for each offense to whi ch I am pleading guilty are as follows: [Theft 7 years maxim um sentence and $10,000 fine]. (b) I have reviewed the Sentencing Guideline Form attached hereto. 28. Are you aware that the Court is not bound by th e terms of any plea agreement entered between you, your counsel and the attorney for the Commonwealth until the Court accept s such a plea agreement? Yes.

. . . . 32. Do you understand that even after your guilty p lea is accepted by the Court, you will have the right to fi le a motion to withdraw your guilty plea at any time prior to sent encing? Yes.

. . . . 37. Has anybody forced you by any means to enter th e plea of guilty? No. 38. Are you doing this of your own free will? Yes. 39. Are you pleading guilty only because you gave an oral or written statement to the police? No. 40. Have any threats been made to you to enter a pl ea of guilty? No. 41. Have any promises been made to you to enter a pl ea of guilty other than any plea agreement that been nego tiated for you by yourself or your attorney? No. 42. Are you satisfied with the representation of your attorney? Yes. 43. Have you had sufficient time to consult with your attorney before reading this statement and entering your plea of guilty? Yes. 44. Has your attorney reviewed with you the possible defenses to these charges and the witnesses you might call on your behalf? Yes. 45. Have you asked your attorney to do anything for you in connection with the charges or your defense that he has n ot done? No.

. . . .J-S33034- 14

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49. Do you understand that, if your plea is accepted, you have the right to have a Pre-Sentence Report prepared on your behalf to aid the Judge in determining the appropriate sent ence to be imposed upon you? Yes.

. . . . 53. Do you understand that the decision to enter a g uilty plea is yours and your alone; that you do not have to enter a plea of guilty and give up all your rights as previously expla ined to you; and that no one can force you to enter a guilty plea? Yes. Guilty Plea Statement, 9/13/12 (emphasis in original) . Additionally, the plea hearing transcript reveals: [The trial court]: Do you understand that this proceed ing here, this is a guilty plea proceeding. Do you understand? [Appellant]: Yes. [The trial court]: Okay. You’re effectiv ely convicting yourself of theft, a felony of the third degree. Do you underst and that? [Appellant]: Yes. [The trial court]: And you are negotiating, you’re negotiating on your own behalf through your lawyer here, because you do not want the Commonwealth to convene the Court or the ju ry to prove every one of these charges against you. Is that c orrect? [Appellant]: Yes. [The trial court]: Okay. Are you satisfied that [you r trial counsel] has provided to you a management plan for th is case which is proper and effective in your mind? [Appellant]: For the most part, yes. [The trial court]: Well, you do have a right, nobod y can force you to plead guilty. You do have a right to go to trial on this matter on all of these charges, and to compel a jury to convict you unanimously of committing these offenses. Do you understand that? [Appellant]: Yes. [The trial court]: All right. By offering a guilty plea and asking me to accept it, you are effectively saying, I don’t w ant to do that. I don’t want to g o to trial on all of these charges, I want to negotiate so that I can accept responsibility, put this m atter behind me. [Appellant]: Yes, Your Honor.

. . . . [The trial court]: Okay. Well, some things we can and cannot do. I’m willing to accept your guilty plea. I’ll accept your guilty plea. I’m considering what we ought to do at this poi nt in time,J-S33034- 14

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because the standard range of sentence, it calls for incar ceration up to and including a State incarceration profile. Yo u’re pleading at the earliest possible moment . . . and I will give you credit for that. . . . Here’s what we are going to do in this ca se. I am going to accept his guilty plea. And I am not going to sentence him at this point in time. He’s only been here a few days. . . . I am going to order a Presentence Investigation in this m atter. Return him to the Northampton County Prison. And I am going to direct you to contact his employer to determine whet her or not they are willing to keep him employed at NSF at his present s alary. And I’d like to have a report on that prior to the time of the sentencing or prior to the time that the Presenten ce Investigation is completed. But otherwise, I am going to fix sentencing in this matter for thirty days from now.

. . . . However, I have a sentencing guideline range that I am required to follow, which has a bottom of three months and a ma ximum of fourteen months.

. . . . I don’t know what your employer’s position is with you , but I can tell you very seriously right now, if you were in a position to pay this restitution to these victims, that would be very material to me in crafting a sentence which would permit you to go back to work; okay? Now I don’t know what your assets are, b ut we are going to order a Presentence Investigati on and you’re going to think about this, and [your trial counsel] is going to see me in the next few days and tell me about whether or not t he restitution component of this case can be satisfied. Tha t is, whether these citizens can recover the money that you to ok from them. Do you understand? [Appellant]: All? I mean, a payment plan, absolute ly, they can get it. [The trial court]: Payment plans I am not interested in. I am not interested in more promises. If I have to make a payment plan, it is going to be accompanied by a prison sentence and a long period of probation , during which you will make regular payments. And if you miss one, then I have other pow ers. But I’m being asked to put you back in New York to work i n your job. [Your trial counsel] is saying, would I consider a mitig ated-range sentence, which would mean that I would not incarcerate you. And I’m unwilling to do that, unless you stroke a check to pay these victims. Do you understand that? [Appellant]: Ah-ha. [The trial court]: I am not willing to take a chance on you. I am not willing to use the authority of the Court to mitigate a sentence unless I have a good reason to do so. And the reason to do so, as far as I am concerned, is that the victims g et paid

. Do you understand that? [Appellant]: Ah-ha.J-S33034- 14

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[The trial court]: Okay. N.T. Plea, 9/13/12, at 11-19 (emphasis added). 11 Here, the record indicates that the written plea agree ment and oral colloquy conformed to Rule 590 and that Appellant ent ered into the agreement voluntarily, knowingly and intelligently. Most important, the record also indicates Appellant was satisfied wi th his trial counsel’s legal representation at the time he pleaded guilty. More over, as the PCRA court found, the PSI revealed Appellant had made certain unverified representations , including his ability to compensate the victims of hi s theft, which in turn compelled the trial court to order the i nstant sentence of 18 to 36 months’ imprisonment followed by 48 months of proba tion. PCRA Court Opinion, 1/11/13, at 1-3. As the transcript of the pl ea hearing indicates Appellant should have expected, at a minimum, this sen tence. During the plea hearing, the trial court explicitly informed App ellant that it would consider only a mitigated sentence if the PSI confirmed Appellant’s ability to compensate his victims. Further, the trial court admon ished Appellant that in the event he was unable to pay the victims, he wou ld face a prison sentence and probation. Again, Appellant seemingly ag reed to these terms. We, therefore, would conclude that his guilty plea wa s valid.

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11 The plea transcript also indicates that Appellant agr eed with the prosecution’s facts underlying felony theft charge. In p articular, Appellant admitted to keeping money that his friends had given him to purchase real estate. See N.T. Plea, 9/13/12, at 3-5.J-S33034- 14

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For the reasons set forth above, we conclude that the trial court did not err in denying Appellant PCRA relief on his inef fectiveness claims. Order affirmed. President Judge Emeritus Ford Elliott joins the memor andum. Judge Olson concurs in the result. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9/22/2014