J-S31010-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

AMILCAR RIVAS-RIVERA,

Appellant No. 1926 MDA 2014

Appeal from the PCRA Order October 31, 2014

In the Court of Common Pleas of Lancaster County

Criminal Division at No(s): 

CP-36-CR-0000099-2012

CP-36-CR-0000100-2012

CP-36-CR-0000101-2012

CP-36-CR-0000102-2012

CP-36-CR-0000108-2012

CP-36-CR-0000120-2012

BEFORE: BENDER, P.J.E., ALLEN, J., and WECHT, J.

MEMORANDUM BY BENDER, P.J.E.: FILED JUNE 19, 2015

Appellant, Amilcar Rivas-Rivera, appeals from the October 31, 2014 

order denying his petition for relief filed under the Post Conviction Relief Act 

(PCRA), 42 Pa.C.S. §§ 9541-9546. Appellant raises one claim of ineffective 

assistance of counsel. After careful review, we affirm. 

The PCRA court summarized the factual and procedural history of this 

case as follows:

On February 12, 2013[, Appellant], Amilcar Rivas-Rivera, 

entered an open plea of guilty before this [c]ourt on 54 felony 

charges spread over five criminal informations. [Appellant’s] 

plea stems from a spree of burglaries taking place during the 

months of September and October 2011 throughout Lancaster 
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County. By the conclusion of the investigation[, Appellant] and 

his co-conspirators were linked to 30 separate burglaries over a 

period of just 44 nights. Attorney Elizabeth Low represented 

[Appellant] at all times leading up to and including the date of 

his proffered plea. While [Appellant’s] [g]uilty [p]lea was nonnegotiated as to the exact sentence, an agreement was made 

between the [p]arties limiting [Appellant’s] overall exposure 

under the guidelines. With the proposed agreement in mind, 

[Appellant] was sentenced to a period of incarceration [of] not 

less than 15 years, nor more than 30 years. 

...

On February 6, 2014[, Appellant] filed a [p]ro-[s]e PCRA 

petition with this Court. Counsel was appointed and an 

evidentiary hearing was held on the matter. Prior to the 

hearing, discrepancies evolved as to the ultimate thrust of 

[Appellant’s] argument. Through a subsequent [a]mended 

[p]etition, and [Appellant’s] own testimony, it was concluded 

that [Appellant’s] claim rests on allegations of ineffective 

assistance of counsel resulting in an involuntary and unknowing 

plea pursuant [to] 42 Pa.C.S. § 9543(a)(2)(ii). 

PCRA Court Opinion (PCO), 10/31/14, at 1-2 (footnotes and citations to the 

record omitted). Specifically, Appellant alleged in his amended petition, and 

at the PCRA hearing, that his plea was involuntary and unknowing because it 

was premised on Attorney Low’s inaccurate claim that if he pled guilty, the 

Commonwealth would withdraw several of the charges pending against him. 

However, those “counts were not withdrawn and [Appellant] pled guilty and 

was sentenced thereon.” Amended Petition, 4/7/14, at 1 (unnumbered).

On October 31, 2014, the PCRA court issued an order and opinion 

denying Appellant’s petition. He filed a timely notice of appeal, as well as a 

timely Pa.R.A.P. 1925(b) concise statement of errors complained of on 

appeal. Herein, Appellant raises one issue for our review: “Whether guilty 
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plea counsel was ineffective in: a) inducing her client to plead guilty on an 

unrealized promise that certain charges would be withdrawn; or, b) failing to 

ensure that the Commonwealth performed the promise made to her client.” 

Appellant’s Brief at 4.

In assessing Appellant’s claim, we begin by noting that, 

[o]ur review of a PCRA court's decision is limited to examining 

whether the PCRA court's findings of fact are supported by the 

record, and whether its conclusions of law are free from legal 

error. [Our] scope of review is limited to the findings of the PCRA 

court and the evidence of record, viewed in the light most 

favorable to the prevailing party at the PCRA court level. The 

PCRA court's credibility determinations, when supported by the 

record, are binding on this Court. However, this Court applies a 

de novo standard of review to the PCRA court's legal 

conclusions.

Commonwealth v. Johnson, 51 A.3d 237, 242-243 (Pa. Super. 2012) 

(internal citations and quotation marks omitted).

Additionally, 

[a] criminal defendant has the right to effective counsel during a 

plea process as well as during trial. A defendant is permitted to 

withdraw his guilty plea under the PCRA if ineffective assistance 

of counsel caused the defendant to enter an involuntary plea of 

guilty.

We conduct our review of such a claim in accordance 

with the three-pronged ineffectiveness test under section 

9543(a)(2)(ii) of the PCRA, 42 Pa.C.S.A. § 9543(a)(2)(ii). 

The voluntariness of the plea depends on whether 

counsel's advice was within the range of competence 

demanded of attorneys in criminal cases.

Commonwealth v. Rathfon, 899 A.2d 365, 369 (Pa. Super. 2006) 

(internal citations and quotation marks omitted).
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Here, Appellant contends that his plea counsel, Attorney Low, acted 

ineffectively by incorrectly advising him that if he pled guilty, the 

Commonwealth would withdraw several of the charges pending against him. 

However, at the PCRA hearing, Attorney Low testified that prior to 

Appellant’s plea, she discussed “nolle prossessing certain counts” with the 

Commonwealth, but “was told each time that was not a possibility.” N.T. 

PCRA Hearing, 7/11/14, at 6. Attorney Low was then asked if she told 

Appellant that certain charges would be “nolle prossed” or “removed” in 

some manner if he entered a guilty plea, to which Attorney Low replied, “I 

don’t believe so.” Id. at 7. Based on this testimony, the PCRA court 

concluded that Attorney Low “never informed [Appellant] that [certain 

charges] would be dropped” if he pled guilty. PCO at 5 (citation to the 

record omitted). Because the record supports the PCRA court’s 

determination, it is binding on this Court. Johnson, 51 A.3d at 242-243. 

We also point out that Attorney Low testified that she explained to 

Appellant each count to which he was pleading guilty. N.T. PCRA Hearing at 

9. Each of those charges was listed in the written guilty plea colloquy, and 

Appellant signed at the bottom of the list. Id. Attorney Low stated that she 

did not recall Appellant having any questions about the written plea 

colloquy. Id. at 10. At the oral plea proceeding, all of the charges to which 

Appellant was pleading guilty were once again stated to him, and Appellant 

indicated that he understood them. N.T. Guilty Plea, 2/12/13, at 3-4, 6-11. 
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Based on this record, the PCRA court concluded that Appellant failed to 

prove that Attorney Low’s conduct caused him to enter an involuntary plea. 

See PCO at 6-7. We ascertain no abuse of discretion in the court’s 

determination. 

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/19/2015