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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 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-48-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 fraud[.] 

[Appellant’s] location was unknown at the time. Consequently, 

about five (5) years passed before [Appellant] was arrested 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 

____________________________________________ 

1

 In exchange for this plea, the Commonwealth withdrew the charges 

against Appellant for theft by failure to make required disposition of funds 

received (18 Pa.C.S. § 3927), receiving stolen property (18 Pa.C.S. § 3925), 

(Footnote Continued Next Page) 
J-S33034-14

- 2 - 

[i]nvestigation report (“PSI”) indicated that [Appellant] had 

made a series of unverified representations to his Probation 

Officer, Bernard Mikulski, and his appointed counsel, Joseph 

Yannuzzi, Esquire. For example, the PSI indicated that 

[Appellant] claimed to have acquired a Bachelor of Arts degree 

from DeSales University and to have had a significant history of 

employment with income of approximately $60,000 to $80,000 

per year. 

[Appellant] reiterated these assertions to [the PCRA court] 

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 regarding 

[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 (18) to 

thirty-six (36) months in state prison, followed by forty-eight 

(48) months of probation. . . . 

Thereafter, [Appellant] filed a timely pro se PCRA petition 

alleging Attorney Yannuzzi’s ineffective assistance of counsel at 

his guilty plea and sentencing hearings. Specifically, [Appellant] 

asserted that Attorney Yannuzzi was ineffective for failing to 

assert a violation of his rights to a speedy trial pursuant 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 omitted). On December 19, 

2013, the PCRA court issued an opinion in accordance with Pa.R.A.P. 

1925(a), which rejected as meritless Appellant’s ineffectiveness of counsel 

claims.2

 With regard to the issue of ineffective assistance of counsel at the 

time of guilty plea, the PCRA court concluded: 

(Footnote Continued) _______________________ 

deceptive or fraudulent business practices (18 Pa.C.S. § 4107(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 court incorporated by 

reference its October 11, 2013 opinion. 
J-S33034-14

- 3 - 

[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 Commonwealth 

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 negotiated 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 voluntary 

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 the 

possibility of pursuing a Rule 600 violation with [Appellant] prior 

to the entry of his plea. Apparently, they decided to forgo this 

course of action in favor of a potential mitigated sentence based 

on [Appellant’s] payment of significant restitution. [Appellant] 

foreclosed this opportunity by failing to make any restitution 

payments. 

Id. 

 On appeal,4 Appellant repeats the arguments contained in his Rule 

1925(b) statement. He argues that the PCRA court erred in determining 

____________________________________________ 

3

 It is unclear whether the PCRA court refers to the guilty plea hearing 

transcript (oral colloquy) or the written colloquy contained in the original 

record here. 

4

 Our review of a PCRA court order dismissing a petition under the PCRA is 

subject to the following standard: 

We review an order dismissing a petition under the PCRA in the 

light most favorable to the prevailing party at the PCRA level. 

This review is limited to the findings of the PCRA court 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 grounds if 

the record supports it. We grant great deference to the 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

- 4 - 

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 demonstrate 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 element into 

two distinct components. 

Commonwealth v. Pierce, [] 527 A.2d 973, 975 ([Pa.] 1987). 

Accordingly, to prove trial counsel ineffective, the petitioner 

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 prejudiced 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 of 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, where the 

petitioner raises questions of law, our standard of review 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

- 5 - 

Philistin, 53 A.3d at 10. Also, as our Supreme Court has explained: 

With regard to the second, i.e., the “reasonable basis” prong, we 

will conclude that counsel's chosen strategy lacked a reasonable 

basis only if [a]ppellant proves that “an alternative not chosen 

offered a potential for success substantially greater than the 

course actually pursued.”[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 reasonable 

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 Appellant’s claim 

that his trial counsel was ineffective for failing to raise a Rule 600 objection 

to the complaint filed against him. Specifically, Appellant contends that 

1732 days had passed between the filing of the complaint against him 

(December 18, 2007) and his tendering of the guilty plea (September 13, 

2012), and that “the Commonwealth offered no evidence 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 provides that a 

defendant on bail is entitled to have trial commence no later than 365 days 

____________________________________________ 

5

“To sustain a claim of ineffectiveness, Appellant must prove that the 

strategy employed by trial counsel was so unreasonable that no competent 

lawyer would have chosen that course of conduct.” Commonwealth v. 

Chmiel, 889 A.2d 501, 540-41 (Pa. 2005). 
J-S33034-14

- 6 - 

after the complaint date. See Pa.R.Crim.P. 600(A)(3).6

 When computing 

the number of pretrial days attributable to the Commonwealth 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, and/or by 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 for 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 365 days, and even 

when those days appear to be attributable to the Commonwealth, a Rule 

600 motion shall nevertheless be denied if the Commonwealth proves that it 

acted with due diligence in attempting to try the defendant timely and that 

the circumstances occasioning the delay were beyond the Commonwealth’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 was in effect prior to 

July 13, 2013. 
J-S33034-14

- 7 - 

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-bycase 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 effort. See id. For 

example, due diligence requires the Commonwealth to employ 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, therefore, 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, 2007. 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 for a moment the 
J-S33034-14

- 8 - 

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 from 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 been meritorious. 

 Ordinarily, upon the proper and timely filing of a Rule 600 motion, it 

would be the Commonwealth’s burden to establish that due diligence was 

exercised in locating and apprehending Appellant during the time period 

potentially excludable under Rule 600. The procedural posture of this case, 

however, is such that Appellant, upon collateral review, is attempting to 

demonstrate trial counsel was ineffective for failing to file a Rule 600 motion, 

and thus, Appellant bears both the burdens of production and persuasion in 

demonstrating that he was prejudiced by the failure of 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 appellant bears 

the burden of pleading and proving each of the Pierce prongs on appeal). 

 In his brief to this Court, Appellant reasons that his trial counsel was 

ineffective “in failing to pursue a Rule 600 dismissal where 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

- 9 - 

Appellant’s Brief at 18. Additionally, Appellant argues that “the 

Commonwealth offered no evidence whatsoever that a Rule 600 challenge 

was meritless.” Id. As a result, Appellant argues that he was prejudiced by 

being “prosecuted and sentenced for a crime which would have been 

dismissed if his appointed public defender had been effective.” Id.

 As explained above, the burden of proof rests with an appellant when 

he/she challenges a Rule 600 violation as part of his/her ineffectiveness of 

counsel claim within a PCRA context. Here, Appellant does not develop an 

argument in his brief sufficient to suggest that the Commonwealth failed to 

exercise due diligence in locating and apprehending him. In fact, our review 

of the record, including the PCRA hearing transcript, indicates that Appellant 

failed to adduce evidence as to why the Commonwealth failed 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 failed to exercise due 

diligence in apprehending Appellant after the filing of the complaint. We, 

therefore, conclude that Appellant has failed to show the 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

- 10 - 

 Appellant next argues that the PCRA court erred in concluding that his 

trial counsel was not ineffective for advising him to plead guilty to theft.7

 

Specifically, Appellant argues only that his trial counsel “managed to 

convince [him] to plead guilty with an expected deal of time served [(90 

days’ imprisonment)] or, at the very least, explained to [Appellant] that 

litigating a meritorious constitutional violation would keep [Appellant] in jail 

longer than he would serve if [he] just pleaded guilty.” Appellant’s Brief at 

11. Consequently, Appellant argues, that his guilty plea was not valid and 

that he should be permitted to withdraw the same to have his pretrial and 

trial rights reinstated. 

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

counsel extends to the plea process, as well as during trial. 

However, allegations of ineffectiveness in connection with the 

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

____________________________________________ 

7

 To the extent Appellant argues that his trial counsel was ineffective for 

failing to move to withdraw the plea 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 argument as waived, 

because Appellant failed to raise it in his 1925(b) statement 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 to any authority in support 

of his argument, but also has failed develop any argument in his brief 

indicating that his guilty plea could have been withdrawn upon a fair and 

just reason and without substantial prejudice to the Commonwealth. 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

- 11 - 

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. The 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, 769-70 (Pa. Super. 2013) 

(internal citation and quotation marks omitted). 

We determine first whether Appellant meets the second prong 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 Appellant argues his trial 

counsel assured him a prison sentence of 90 days, we disagree. 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 possibility 

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 that 

money. . . . That was the course. [Appellant] was going 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 restitution. 

[Appellant] foreclosed this opportunity by failing to make any restitution 

payments.” PCRA Court Opinion, 1/11/13, at 1-3. Given these facts of 
J-S33034-14

- 12 - 

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 representations 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 conclude that it is devoid of 

any arguable merit. To be valid, a plea must be voluntary, 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 plea. It first requires that 

a guilty plea be offered in open court. The rule then 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 forfeited by pleading guilty. 

9

 We observe that Appellant does not assert any facts to establish that an 

alternative not chosen by his trial counsel offered a potential for success 

substantially greater than the course actually pursued. 
J-S33034-14

- 13 - 

entered. As the Comment to Rule 590 provides, at a minimum, the PCRA 

court should ask questions to elicit the following information: 

(1) Does the defendant understand the nature of the charges 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 the right 

to trial by jury? 

(4) Does the defendant understand that he or she is presumed 

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 bound 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 valid, the guilty 

plea colloquy must affirmatively show that the defendant 

understood what the plea connoted and its consequences. This 

determination is to be made by examining the totality of the 

circumstances surrounding the entry of the plea. Thus, even 

though there is an omission or defect in the guilty plea colloquy, 

a plea of guilty will not be deemed 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. 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 defendant 

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 statements he 

makes in open court while under oath and may not later assert 

____________________________________________ 

10 The Comment also includes a seventh question, which is applicable only 

when a defendant pleads guilty to murder generally. 
J-S33034-14

- 14 - 

grounds for withdrawing the plea which contradict the 

statements he made at his plea colloquy. . . . [A] defendant 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 colloquy does not 

reveal any grounds for challenging the validity of the 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 that 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 enter a plea 

of guilty to some or all of the charges which led to your arrest? 

Yes. 

14. Do you understand the nature of the charges to which your 

pleading guilty? Yes. 

15. Each crime has a number of elements or things that the 

Commonwealth would have to prove at trial. Has your 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 jury means you 

are able to participate in the selection of a jury with your 

attorney? Yes. 

 . . . . 

22. In a jury trial, the jury must presume that you are innocent 

until proven guilty. The Commonwealth must prove you are 

guilty of each element of the crime or crimes charged against 

you beyond a reasonable doubt before you can be found guilty. 

A reasonable doubt is a doubt that would cause an ordinary and 

reasonable person to hesitate before going through with 
J-S33034-14

- 15 - 

something important to him. Do you understand these things? 

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 which I am 

pleading guilty are as follows: [Theft 7 years maximum 

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 the terms of 

any plea agreement entered between you, your counsel and the 

attorney for the Commonwealth until the Court accepts such a 

plea agreement? Yes. 

 . . . . 

32. Do you understand that even after your guilty plea is 

accepted by the Court, you will have the right to file a motion to 

withdraw your guilty plea at any time prior to sentencing? Yes. 

 . . . . 

37. Has anybody forced you by any means to enter the 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 plea of 

guilty? No. 

41. Have any promises been made to you to enter a plea of 

guilty other than any plea agreement that been negotiated 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 not 

done? No. 

 . . . . 
J-S33034-14

- 16 - 

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 sentence to be 

imposed upon you? Yes. 

 . . . . 

53. Do you understand that the decision to enter a guilty 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 explained 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 proceeding here, 

this is a guilty plea proceeding. Do you understand? 

[Appellant]: Yes. 

[The trial court]: Okay. You’re effectively convicting yourself of 

theft, a felony of the third degree. Do you understand 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 jury to 

prove every one of these charges against you. Is that correct? 

[Appellant]: Yes. 

[The trial court]: Okay. Are you satisfied that [your trial 

counsel] has provided to you a management plan for this case 

which is proper and effective in your mind? 

[Appellant]: For the most part, yes. 

[The trial court]: Well, you do have a right, nobody 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 want to do 

that. I don’t want to go to trial on all of these charges, I want to 

negotiate so that I can accept responsibility, put this matter 

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 point in time, 
J-S33034-14

- 17 - 

because the standard range of sentence, it calls for incarceration 

up to and including a State incarceration profile. You’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 case. 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 matter. 

Return him to the Northampton County Prison. And I am going 

to direct you to contact his employer to determine whether or 

not they are willing to keep him employed at NSF at his present 

salary. And I’d like to have a report on that prior to the time of 

the sentencing or prior to the time that the Presentence 

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 maximum 

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, but we are 

going to order a Presentence Investigation 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 the 

restitution component of this case can be satisfied. That is, 

whether these citizens can recover the money that you took 

from them. Do you understand? 

[Appellant]: All? I mean, a payment plan, absolutely, 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 powers. But 

I’m being asked to put you back in New York to work in your job. 

[Your trial counsel] is saying, would I consider a mitigated-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 get paid. 

Do you understand that? 

[Appellant]: Ah-ha. 
J-S33034-14

- 18 - 

[The trial court]: Okay. 

N.T. Plea, 9/13/12, at 11-19 (emphasis added).11

 

Here, the record indicates that the written plea agreement and oral 

colloquy conformed to Rule 590 and that Appellant entered into the 

agreement voluntarily, knowingly and intelligently. Most important, the 

record also indicates Appellant was satisfied with his trial counsel’s legal 

representation at the time he pleaded guilty. Moreover, as the PCRA court 

found, the PSI revealed Appellant had made certain unverified 

representations, including his ability to compensate the victims of his theft, 

which in turn compelled the trial court to order the instant sentence of 18 to 

36 months’ imprisonment followed by 48 months of probation. PCRA Court 

Opinion, 1/11/13, at 1-3. As the transcript of the plea hearing indicates 

Appellant should have expected, at a minimum, this sentence. During the 

plea hearing, the trial court explicitly informed Appellant that it would 

consider only a mitigated sentence if the PSI confirmed Appellant’s ability to 

compensate his victims. Further, the trial court admonished Appellant that 

in the event he was unable to pay the victims, he would face a prison 

sentence and probation. Again, Appellant seemingly agreed to these terms. 

We, therefore, would conclude that his guilty plea was valid. 

____________________________________________ 

11 The plea transcript also indicates that Appellant agreed with the 

prosecution’s facts underlying felony theft charge. In particular, 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

- 19 - 

For the reasons set forth above, we conclude that the trial court did 

not err in denying Appellant PCRA relief on his ineffectiveness claims. 

 Order affirmed. 

 President Judge Emeritus Ford Elliott joins the memorandum. 

 Judge Olson concurs in the result. 

Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 9/22/2014