J-S07004-16

*

 Former Justice specially assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

LEO DANIEL EDWARDS, JR.,

Appellant No. 550 MDA 2015

Appeal from the Order Entered February 20, 2015

In the Court of Common Pleas of Luzerne County

Criminal Division at No(s): CP-40-CR-0001004-2013

BEFORE: BOWES, OTT, AND FITZGERALD,* JJ.

MEMORANDUM BY BOWES, J.: FILED FEBRUARY 05, 2016

Leo Daniel Edwards, Jr., appeals from the February 20, 2015 order 

denying him PCRA relief. We affirm. 

This appeal involves four different criminal cases. At action number 

1004 of 2013, Appellant was charged with retail theft graded as a firstdegree misdemeanor after he was seen on November 14, 2012, leaving the 

Bed, Bath and Beyond in Arena Hub Place, Wilkes-Barre Township, with two 

Dyson vacuum cleaners worth $1,198 without paying for them. Case 

number 1020 of 2013 involves a first-degree misdemeanor retail theft 

offense that Appellant committed when he took a Dyson vacuum worth 

about $500 from a Wal-Mart Superstore in Wilkes-Barre Township on July 

24, 2012. This crime was captured on surveillance tape. At case number 
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1021 of 2013, at the Target Department Store located at 3400 Wilkes-Barre 

Township Commons in Wilkes-Barre Township, Appellant was observed 

stealing a Dyson vacuum cleaner worth about $600 on September 19, 2013. 

He was charged with retail theft graded as a first-degree misdemeanor. On 

February 14, 2013, at criminal action 1022 of 2013, Appellant was charged 

with retail theft graded as a third-degree felony. Between July 15, 2012, 

and July 28, 2012, videotape surveillance captured Appellant stealing 

$2,772.18 in merchandise, which consisted of thirty-two packages of men’s 

razor blades and three Dyson vacuum cleaners, from the same Target 

Department Store. 

On October 10, 2013, he tendered a guilty plea at all four cases,

where all four crimes were graded as first-degree misdemeanors. Appellant 

acknowledged at the proceeding that there was no agreement as to his 

sentence and acknowledged that the maximum sentence that could be 

imposed for each crime was five years in jail. A presentence report was 

prepared, and the matter proceeded to sentencing on November 18, 2013. 

The report revealed that Appellant had an extensive criminal history, 

revocations of probation, escapes from work-release programs and 

furloughs, and he had been released from prison “not long before 

committing these offenses.” N.T. Sentencing, 11/18/13, at 5. 

Based upon these factors, and since there were four offenses involved, 

the sentencing court concluded that a state sentence was appropriate. 
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Appellant was sentenced in the standard range to nine to twenty-four 

months, but two of the sentences were imposed consecutively, resulting in 

an aggregate term of imprisonment of one and one-half to four years. 

Appellant did not file a direct appeal but did request PCRA relief in a 

timely pro se petition filed on June 6, 2014. Counsel was appointed and 

averred that Appellant was entitled to withdraw his guilty plea because 

counsel told him that he would get a sentence of only six to twelve months 

“total on these cases.” Brief in Support of Pro Se PCRA Petition and 

Supplemental Counseled Petition, 2/5/15, at 2. 

The court conducted a hearing on February 11, 2015, where plea 

counsel, Joseph Yeager, Esquire, denied telling Appellant that he would 

receive an aggregate sentence of six to twelve months in jail in the four 

cases. N.T. Hearing, 2/11/15, at 24. Mr. Yeager explained to Appellant that 

“on each and every count, the standard range was 6 to 12 months” and that 

he could not predict what the aggregate sentence would be. Id. Mr. Yeager 

additionally told Appellant, as substantiated by the plea colloquy, that there 

was no agreement as to his sentence. Mr. Yeager testified that Appellant 

“was never promised that his sentence would be 6 to 12 months concurrent 

on each and every retail theft count.” Id. 

The PCRA court denied relief on February 20, 2015, and this appeal 

followed. Appellant presents one issue for our review: “Whether the trial 

court erred in not finding trial counsel ineffective.” Appellant’s brief at 1. 
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Appellant claims that he was promised that he would receive six to twelve 

months imprisonment, rendering his plea infirm since his sentence was in 

excess of that term. Additionally, Appellant avers that he was never advised 

about consecutive sentencing and that his aggregate maximum sentence 

could be more than the maximum sentence outlined as to each offense. 

Initially, we note that our “standard of review of the denial of a PCRA 

petition is limited to examining whether the evidence of record supports the 

court’s determination and whether its decision is free of legal error.” 

Commonwealth v. Smith, 121 A.3d 1049, 1052 (Pa.Super. 2015). 

Appellant avers that plea counsel was ineffective. “To plead and prove 

ineffective assistance of counsel a petitioner must establish: (1) that the 

underlying issue has arguable merit; (2) counsel's actions lacked an 

objective reasonable basis; and (3) actual prejudice resulted from counsel's 

act or failure to act.” Commonwealth v. Stewart, 84 A.3d 701, 706 

(Pa.Super. 2013) (en banc). The failure to meet any of these aspects of the 

ineffectiveness test results in the claim failing. Id. A determination as to 

whether the facts asserted present a claim of arguable merit is a legal one. 

Id. It is presumed that counsel renders effective representation. Id. 

Additionally, “[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. Moser, 921 A.2d 526, 531 (Pa.Super. 2007) (citation omitted).
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Herein, Appellant’s first position is that he was promised a total 

sentence of six to twelve months incarceration in connection with the plea 

entered at the four cases. However, the PCRA court specifically found “the 

testimony of trial counsel, Joseph J. Yeager, Esquire, credible, and further 

find that he never promised the Defendant that he would receive a particular 

sentence.” Trial Court Opinion, 7/15/15, at 6. “The PCRA court's credibility 

determinations, when supported by the record, are binding” for purposes of 

appellate review. Commonwealth v. Watkins, 108 A.3d 692, 701 (Pa. 

2014). The PCRA court’s credibility determination is supported by the 

transcript of the plea colloquy, where Appellant acknowledged that there was 

no sentencing agreement. Hence, we are bound by the determination that 

Appellant was not promised that he would receive six to twelve months 

incarceration, and his guilty plea cannot be withdrawn on this basis. 

Appellant’s second position is that he was never informed that his 

sentences might be imposed consecutively. Appellant relies upon 

Commonwealth v. Persinger, 615 A.2d 1305 (Pa. 1992). In that case, 

the defendant pled guilty to nine counts of bad checks and one count of theft 

by deception. Persinger was told that he faced a maximum sentence for the 

offense of bad checks of two years and a maximum sentence on the theft 

charge of five years. It was not communicated to the defendant that each 

sentence could be imposed consecutively, and he ultimately was sentenced 

to seven and one-half to fifteen years. Thus, while the defendant had been 
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instructed as to the maximum sentence for each crime, he had not been 

given information about the aggregate sentence that he faced if the 

sentences were consecutive. Moreover, Persinger actually received a 

maximum sentence that exceeded what had been stated as the maximum 

sentence imposed on any offense. In other words, he was told that the 

maximum sentence for the most serious offense was five years, yet he 

received fifteen years. Thus, the defendant's total sentence was far greater 

than the maximum he could have obtained on the highest graded offense. 

Since Persinger was unaware of the maximum sentence that he faced and 

that was imposed, our High Court permitted him to withdraw his guilty plea. 

In the present case, at the colloquy, Appellant was advised that each 

offense to which he was pleading guilty carried a maximum sentence of five 

years. N.T. Plea, 10/10/13, at 3, 4. The maximum aggregate sentence 

actually imposed on Appellant was four years imprisonment, which was less 

than what he was apprised that he risked as to each offense when he 

tendered his guilty plea. Accordingly, Appellant’s guilty plea is not infirm 

under Persinger. 

In Commonwealth v. Carter, 656 A.2d 463, 466 (Pa. 1995), the 

defendant invoked Persinger since he was not warned that each sentence 

could be imposed consecutively as to the multiple offenses to which he pled 

guilty. However, the maximum aggregate sentence that was imposed on 

Carter was less than the maximum sentence that he was notified that he 
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faced as to one of the offenses. Thus, the sentence actually imposed on 

Carter was less than the minimum/maximum sentence that he was told that 

he risked on one crime. 

The Carter court distinguished Persinger and refused to permit 

Carter to withdraw his guilty plea since he was aware that he could have 

received the sentence actually imposed. Herein, Appellant knew that he 

faced a term of five years incarceration as a maximum sentence and the 

maximum aggregate sentence imposed was less than that amount of time. 

Carter rather than Persinger applies in this case, and Appellant cannot 

withdraw his guilty plea even though he was not informed about consecutive 

sentencing. 

Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/5/2016