J-S42006-20

J-S42007-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

CHRISTOPHER JOHNSON 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 2225 EDA 2019

Appeal from the PCRA Order Entered June 17, 2019

In the Court of Common Pleas of Philadelphia County 

Criminal Division at No(s): CP-51-CR-0003935-2011

COMMONWEALTH OF PENNSYLVANIA

v.

CHRISTOPHER JOHNSON 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 2226 EDA 2019

Appeal from the PCRA Order Entered June 17, 2019

In the Court of Common Pleas of Philadelphia County 

Criminal Division at No(s): CP-51-CR-0003936-2011

BEFORE: PANELLA, P.J., OLSON, J., and MUSMANNO, J.

MEMORANDUM BY PANELLA, P.J.: FILED DECEMBER 14, 2020

Christopher Johnson appeals from the order entered in the Philadelphia 

County Court of Common Pleas on June 17, 2019, dismissing, without a

hearing, his petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 

42 Pa. C.S.A. §§ 9541-9546. Johnson raises claims of ineffective assistance 
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of plea counsel related to entry of no-contest and guilty pleas under both of 

the above dockets.1 We affirm.

On September 15, 2015, Johnson entered a no-contest plea to two 

counts of assault of a law enforcement officer, and a guilty plea to two counts 

each of simple assault and recklessly endangering another person, and one 

count each of carrying firearms on public streets of Philadelphia and 

possession of an instrument of crime. In exchange for his plea, the 

Commonwealth agreed not to pursue the mandatory minimum sentence of 

twenty years’ incarceration on each count of assault of a law enforcement 

officer. See N.T., 9/15/2015, at 6, 13. In all other respects, Johnson’s pleas 

remained open, with the sentence to be determined by the trial court. 

After a pre-sentence investigation and mental health evaluation was 

completed, the trial court sentenced Johnson at both dockets to an aggregate 

twelve to twenty-four years’ incarceration, followed by five years’ probation.

After the court denied his post-sentence motion, Johnson filed a timely 

appeal to this Court. In an unpublished memorandum, we rejected Johnson’s 

claims and affirmed his judgment of sentence. See Commonwealth v. 

Johnson, 549 EDA 2016 (Pa. Super. filed December 5, 2016) (unpublished 

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1 We have consolidated Johnson’s two appeals sua sponte as they raise 

identical challenges to the PCRA court’s order.
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memorandum). The Pennsylvania Supreme Court denied Johnson’s petition 

for allowance of appeal. 

On May 3, 2018, Johnson filed a pro se PCRA petition. The PCRA court 

appointed counsel, who later filed a Finley2 no-merit letter and a motion to 

withdraw as counsel. Johnson filed a motion for permission to file an amended 

petition with the assistance of newly retained private counsel, which the PCRA 

court granted. New counsel filed an amended petition, contending plea counsel 

was ineffective and that Johnson’s plea was entered unknowingly and 

unintelligently. On June 17, 2019, the court entered an order dismissing 

Johnson’s PCRA petition. Subsequently, on July 11, 2019, Johnson filed 

separate notices of appeal from the order dismissing his petition under both 

of the above dockets, pursuant to, and in compliance with, Commonwealth 

v. Walker, 185 A.3d 969 (Pa. 2018) (requiring a separate notice of appeal 

for each trial court docket number appealed from). 

We note that it is undisputed that Johnson did not receive the proper 

notice of the court’s dismissal of his amended PCRA petition. Pa.R.Crim.P. 

907(4) provides that when the court dismisses a PCRA petition without a 

hearing, it must advise the defendant of the right to appeal and the time for 

initiating an appeal “by certified mail, return receipt requested.” 

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2 Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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Here, the PCRA court admits that Johnson never received the initial Rule 

907 notice, issued on May 20, 2019, as evidenced by the notice being returned 

to the court as undeliverable. Therefore, there is no indication in the record of 

when, or if, Johnson received proper notice of his right to file an appeal or the 

time within which to do so.3

Since the PCRA court entered its order denying Johnson’s PCRA petition 

on June 17, 2019, Johnson’s notice of appeal was due on or before July 17, 

2019. See Pa.R.A.P. 903(a) (notice of appeal shall be filed within 30 days 

after the entry of the order from which the appeal is taken). Johnson’s notice 

of appeal under both dockets was filed on July 11, 2019. Therefore, it would 

appear that Johnson nevertheless received actual notice of the dismissal and 

subsequently timely filed his appeal.

Under these circumstances, we do not find a remand necessary in order 

for the PCRA court to correct its failure to follow the directives of Rule 907. 

Johnson has not raised the issue himself on appeal, and in fact explicitly 

waived any defect in notice in his response to our rule to show cause. See 

Response to Rule to Show Cause, 9/23/2019, at 2; see also Commonwealth 

v. Zeigler, 148 A.3d 849, 851 n.2 (Pa. Super. 2016) (finding that an 

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3 Since the court had already formally dismissed the PCRA petition before the 

May 20, 2019 order was returned to the court, it attempted to correct the 

discrepancy by issuing a second Rule 907 notice on June 28, 2019. 
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appellant’s failure to raise on appeal the PCRA court’s failure to provide Rule 

907 notice results in waiver of the claim). Therefore, we will proceed to 

address the merits of Johnson’s claims appeal. 

“Our standard of review for issues arising from the denial of PCRA relief 

is well-settled. We must determine whether the PCRA court’s ruling is 

supported by the record and free of legal error.” Commonwealth v. Presley, 

193 A.3d 436, 442 (Pa. Super. 2018) (citation omitted). A PCRA court may 

dismiss a petition without a hearing if it concludes the petition raises no 

genuine issues of material fact and does not otherwise arguably justify 

collateral relief. See Commonwealth v. Cruz, 223 A.3d 274, 277 (Pa. Super. 

2019).

In each of his contentions, Johnson argues that his pleas were 

unknowingly given because he received ineffective assistance of plea counsel. 

“A criminal defendant has the right to effective counsel during a plea process 

as well as during trial.” Commonwealth v. Rathfon, 899 A.2d 365, 369 (Pa. 

Super. 2006). However, “[a]llegations of ineffectiveness in connection with 

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

ineffectiveness caused the defendant to enter an involuntary or unknowing 

plea.” Commonwealth v. Hickman, 799 A.2d 136, 141 (Pa. Super. 2002) 

(citation omitted). Also, “[w]here the defendant enters his plea on the advice 

of counsel, the voluntariness of the plea depends upon whether counsel’s 
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advice was within the range of competence demanded of attorneys in criminal 

cases.” Id. (internal quotation marks and citations omitted).

We presume counsel is effective, and an appellant bears the burden to 

prove otherwise. See Commonwealth v. Bennett, 57 A.3d 1185, 1195 (Pa. 

2012). The test for ineffective assistance of counsel is the same under both 

the Federal and Pennsylvania Constitutions. See Strickland v. Washington, 

466 U.S. 668, 687-88 (1984); Commonwealth v. Kimball, 724 A.2d 326, 

330-332 (Pa. 1999). An appellant must demonstrate: (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 proceedings would have been different. See Commonwealth 

v. Solano, 129 A.3d 1156, 1162-63 (Pa. 2015). A failure to satisfy any prong 

of the test for ineffectiveness will require rejection of the claim. See id. at 

1163. Where, as here, the appellant pleaded guilty, in order to satisfy the 

prejudice requirement, he must show that “there is a reasonable probability 

that, but for counsel’s errors, he would not have pleaded guilty and would 

have insisted on going to trial.” Rathfon, at 370 (citation omitted). 

Assuming, arguendo, there is arguable merit to Johnson’s contentions 

regarding plea counsel, we conclude Johnson has failed to demonstrate he 

suffered prejudice due to plea counsel's alleged failures. Specifically, Johnson 
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has failed to demonstrate, let alone allege, that but for counsel's inaction, he 

would not have pled guilty and would have gone to trial. See id. 

First, Johnson claims plea counsel’s advice was ineffective because he 

claims the factual basis of the plea was insufficient to establish his guilt for 

shooting at law enforcement. Specifically, he claims the facts show that he did 

not know that he was shooting at law enforcement and that he did not intend 

to shoot at the officers. However, plea counsel specifically pointed this out in 

his response to the factual basis set forth by the Commonwealth. See N.T., 

9/15/2015, at 19-20. Further, plea counsel stated that Johnson was pleading 

no-contest to the two aggravated assault of law enforcement charges

“because of the sentencing,” which the Commonwealth then explained as its 

waiver of the mandatory sentence. See id. at 12-13. Therefore, the record 

shows that plea counsel made it clear that Johnson was surrendering his right 

to litigate this very issue in exchange for the Commonwealth waiving the 

mandatory minimum. 

Johnson claims he has established prejudice on this claim because 

[t]he record reflects that [Johnson] came to court wanting to 

proceed to trial with a jury. However, after a brief, off the record, 

discussion with counsel, [Johnson] instead pled. Were it not for 

his counsel’s advice during that brief off the record meeting, 

[Johnson] would not have pled as he did. 

Appellant’s Brief, at 37 (re-paginated for clarity). Notably, Johnson never 

specifies the actual advice with which he takes issue. 
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Here, the record indicates Johnson was provided with accurate 

information regarding the possible maximum sentences he could receive at 

trial, and that he had bargained for the Commonwealth’s agreement to waive 

the mandatory minimum for the charges of assault of a law enforcement 

officer. Therefore, Johnson has failed to establish prejudice on his first claim. 

Second, Johnson contends his plea was unknowingly entered because 

counsel did not adequately investigate his mental health history and should 

have known that Johnson did not fully understand the decisions he was 

making. His argument appears to be centered on his contention that he did 

not understand that he would receive the sentence that he did, and that he 

had allegedly been told by counsel that he would be sentenced to seven to 

fifteen years. See Appellant’s Brief, at 42, 45 (re-paginated for clarity). 

After a review of the record, we find Johnson has failed to allege - let 

alone prove - prejudice regarding his second claim. See Rathfon, 899 A.2d 

at 369-70. As set forth above, the record demonstrates that Johnson was 

aware of the possibility of mandatory minimum sentences, and after 

consulting his attorney and his mother, chose to avoid that risk by entering 

the plea agreement. Even if we assume that he was suffering from significant 

cognitive deficits when he pled, he has provided no basis for concluding he 

would have chosen to forgo the benefit of the plea bargain. By failing to satisfy 

one of the prongs of the ineffective assistance test, Johnson’s entire claim 

fails. Commonwealth v. Medina, 209 A.3d 992, 1000 (Pa. Super. 2019). 
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Further, the statements made during a plea colloquy bind a criminal 

defendant. See Commonwealth v. Muhammad, 794 A.2d 378, 384 (Pa. 

Super. 2002). As a result, a defendant cannot assert grounds for withdrawing 

the plea that contradict statements made at that time. See Commonwealth 

v. Stork, 737 A.2d 789, 790-91 (Pa. Super. 1999). Johnson specifically 

represented in both his written and oral plea colloquies that no promises had 

been made to him. See Colloquy for Plea of Guilty / Nolo Contendere, 

9/15/2015; see also Written Plea Colloquy, 9/15/2015, at 1-4; see also N.T., 

9/15/2015, at 10-15. Further, it was clear from both colloquies that he was 

entering an open plea, and therefore no promises of a particular sentence or 

any plea bargains had been made, other than the Commonwealth forgoing its 

right to demand a mandatory minimum sentence. Finally, and most 

importantly, Johnson represented in both colloquies that he did not suffer from 

any mental health issues that would impact his decision. 

For the reasons set forth above, we conclude Johnson is not entitled to 

relief. The record supports the PCRA court's credibility determinations. 

Moreover, having conducted an independent review of the record in light of 

the PCRA petition, we agree that the PCRA petition is meritless. 

Accordingly, for the reasons discussed above, we affirm the PCRA court’s 

dismissal of Johnson’s PCRA petition without a hearing. 

 Order affirmed.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/14/20