J-S72024-17

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* Former Justice specially assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

RICHARD LOPEZ,

Appellant

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 3287 EDA 2016

Appeal from the PCRA Order September 15, 2016

in the Court of Common Pleas of Philadelphia County 

Criminal Division at No(s): CP-51-CR-0014722-2007

BEFORE: BENDER, P.J.E., MUSMANNO, J., and STEVENS*, P.J.E.

MEMORANDUM BY MUSMANNO, J.: FILED DECEMBER 29, 2017

Richard Lopez (“Lopez”) appeals from the Order dismissing his first 

Petition for relief filed pursuant to the Post Conviction Relief Act (“PCRA”).1 

We affirm.

On August 22, 2008, Lopez pled nolo contendere to the crimes of 

aggravated assault and criminal conspiracy.2 See 18 Pa.C.S.A. §§ 2702, 

903. On June 10, 2009, the trial court sentenced Lopez to concurrent prison 

terms of six to fifteen years. On direct appeal, this Court affirmed Lopez’s 

judgment of sentence, after which the Pennsylvania Supreme Court denied 

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1 See 42 Pa.C.S.A. §§ 9541-9546.

2

It is well established that a plea of nolo contendere is treated as a guilty 

plea in terms of its effect upon a given case.” Commonwealth v. V.G., 9 

A.3d 222, 226 (Pa. Super. 2010).
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allowance of appeal. See Commonwealth v. Lopez, 4 A.3d 672 (Pa. 

Super. 2010), appeal denied, 13 A.3d 476 (Pa. 2010). 

Lopez timely filed the instant PCRA Petition on August 20, 2011. 

Appointed counsel filed an Amended PCRA Petition on October 19, 2015. 

After appropriate Notice pursuant to Pa.R.Crim.P. 907, the PCRA court 

dismissed Lopez’s PCRA Petition without an evidentiary hearing. Thereafter, 

Lopez filed the instant, timely appeal, followed by a court-ordered Pa.R.A.P. 

1925(b) Concise Statement of matters complained of on appeal.

Lopez presents the following claim for our review: “Did the PCRA 

[c]ourt err when it dismissed [Lopez’s] PCRA Petition without a hearing, and 

[] where [Lopez] had pled that he had been deceived by prior counsel as to 

sentencing[,] and where said issue could not be resolved until and unless an 

evidentiary hearing was held?” Brief for Appellant at 3.

Lopez argues that his plea counsel rendered ineffective assistance by 

inducing him to plead nolo contendere with a promise that the trial court 

would sentence him to three to six years in prison. Id. at 8. Lopez 

contends that an evidentiary hearing is necessary to determine whether 

counsel improperly induced him to plead guilty. Id. at 8-9. 

“In reviewing the denial of PCRA relief, we examine whether the PCRA 

court’s determination is supported by the record and free of legal error.” 

Commonwealth v. Montalvo, 114 A.3d 401, 409 (Pa. 2015) (citation and 

internal quotation marks omitted). 
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To establish ineffective assistance of counsel warranting relief under 

the PCRA, a petitioner must establish, by a preponderance of the evidence,

that counsel’s ineffectiveness so undermined the truth-determining process 

that no reliable adjudication of guilt or innocence could have taken place. 

Commonwealth v. Johnson, 966 A.2d 523, 532 (Pa. 2009). “Generally, 

counsel’s performance is presumed to be constitutionally adequate, and 

counsel will only be deemed ineffective upon a sufficient showing by the 

petitioner.” Id. This requires the petitioner to demonstrate that (1) the 

underlying claim is of arguable merit; (2) counsel had no reasonable 

strategic basis for his or her action or inaction; and (3) petitioner was 

prejudiced by counsel’s act or omission. Id. at 533. A finding of “prejudice”

requires the petitioner to show “that there is a reasonable probability that, 

but for counsel’s unprofessional errors, the result of the proceeding would 

have been different.” Id. Counsel cannot be deemed ineffective for failing 

to pursue a claim that lacks merit. Commonwealth v. Loner, 836 A.2d 

125, 132 (Pa. Super. 2003) (en banc).

When asserting a claim of ineffectivene assistance of counsel in the 

context of a guilty plea, a defendant must show that plea counsel’s 

ineffectiveness induced him to enter the plea. Commonwealth v. 

Johnson, 875 A.2d 328, 331 (Pa. Super. 2005). 

Because a plea of guilty effectively waives all non-jurisdictional 

defects and defenses, after sentencing, allegations of 

ineffectiveness of counsel in this context provide a basis for 

withdrawal of the plea only where there is a causal nexus 
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between counsel’s ineffectiveness, if any, and an unknowing or 

involuntary plea. The guilty plea hearing becomes the significant 

procedure under scrutiny. The focus of the inquiry is whether 

the accused was misled or misinformed and acted under that 

misguided influence when entering the guilty plea.

Commonwealth v. Flood, 627 A.2d 1193, 1199 (Pa. Super. 1993) 

(citations and emphasis omitted).

As this Court has explained, 

[o]ur law presumes that a defendant who enters a guilty plea 

was aware of what he was doing. He bears the burden of 

proving otherwise.

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The long standing 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 

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. We [cannot] permit a defendant to 

postpone the final disposition of his case by lying to the court 

and later alleging that his lies were induced by the prompting of 

counsel.

Commonwealth v. Pollard, 832 A.2d 517, 523-24 (Pa. Super. 2003). 

Our review of the record discloses that during his plea colloquy, the 

trial court explained to Lopez that he was entering a plea of no contest to 

two first-degree felonies, and the court could impose consecutive sentences 

for a prison term of up to 20 to 40 years. N.T., 8/22/08, at 6. In addition, 
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the trial court reiterated that it had the authority to sentence Lopez to ten to 

twenty years in prison for each charge, ten to twenty months, or even ten to 

twenty days, and that it was entirely up to the trial court as to the sentenced 

imposed. Id. Lopez acknowledged that he understood the trial court’s 

explanation of potential sentences. Id. at 7-8. Further, Lopez 

acknowledged that he had discussed his no-contest plea with plea counsel; 

he understood the rights that he was giving up by tendering his plea; he was 

satisfied with counsel’s representation; and that no one had made any 

promises to him regarding his sentence. Id. at 8-16. 

Thus, our review of the record discloses that, by his own admission, 

Lopez knew of his potential sentences at the time of sentencing, and that 

counsel had made no promises for a lower sentence. Because Lopez failed 

to establish that his counsel rendered ineffective assistance, we affirm the 

Order of the PCRA court, which dismissed Lopez’s Petition without a hearing. 

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/29/2017