J-S14037-16

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

BRENTON ALBERT DIEHL,

Appellant No. 1436 MDA 2015

Appeal from the Order July 24, 2015

In the Court of Common Pleas of Berks County

Criminal Division at No(s): CP-06-CR-0004728-2013

BEFORE: FORD ELLIOTT, P.J.E., PANELLA, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.: FILED FEBRUARY 17, 2016

This is an appeal from the order entered in the Court of Common Pleas 

of Berks County dismissing Appellant’s first petition filed under the Post 

Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. Appellant 

contends the PCRA court erred in denying his petition without an evidentiary 

hearing. We affirm. 

The relevant facts and procedural history are as follows: On March 3, 

2014, Appellant, who was represented by counsel, entered a negotiated 

guilty plea to the charge of possession with the intent to deliver a controlled 

substance (“PWID”) (marijuana) and the summary offense of purchase, 
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consumption, possession of liquor or malt or brewed beverages.1 At the 

guilty plea colloquy, Appellant admitted that, on April 11, 2013, when he 

was nineteen years old, the police stopped his vehicle and discovered therein 

a malt or brewed beverage and marijuana, which Appellant possessed with 

the intent to deliver. N.T. Guilty Plea, 3/3/14, at 5. In accordance with the 

negotiated plea agreement, the trial court sentenced Appellant to three 

years of probation for PWID and a $100.00 fine for the summary offense of 

possession of a malt or brewed beverage. Thereafter, as a consequence of 

his guilty plea, the Pennsylvania Department of Transportation suspended 

Appellant’s driver’s license. 

Despite being provided with notice of his post-sentence and appellate 

rights, Appellant filed neither post-sentence motions nor a direct appeal. 

However, on February 26, 2015, Appellant filed a timely counseled PCRA 

petition averring the ineffective assistance of guilty plea counsel resulting in 

the entry of an involuntary guilty plea. Appellant specifically averred guilty 

plea counsel was ineffective (1) in failing to discuss the possibility of filing a 

pretrial motion; (2) in failing to file pretrial motions; (3) in failing to 

communicate adequately with Appellant for purposes of discussing the 

____________________________________________

1 35 P.S. § 780-113(a)(3) and 18 Pa.C.S.A. § 6308(a), respectively. In 

exchange for Appellant’s guilty plea, the Commonwealth withdrew charges of 

possession of a controlled substance, 35 P.S. § 780-113(a)(31), possession 

of drug paraphernalia, 35 P.S. § 780-113(a)(32), and exhaust systems, 

mufflers, or noise controls, 75 Pa.C.S.A. § 4523(d). 
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process of the case and the full range of options available to Appellant, 

including but not limited to his right to testify and argue “personal use” of 

the marijuana as opposed to “intent to deliver;” and (4) in failing to advise 

Appellant that his driver’s license would be suspended as a result of his 

entry of a guilty plea. Appellant contended that, due to this alleged 

ineffectiveness, he did not understand his options at the time of the guilty 

plea colloquy and, as a result thereof, he entered an involuntary guilty plea 

without the benefit of adequate consultation and advice.

On May 29, 2015, the PCRA court provided Appellant with notice of its 

intent to dismiss the petition without a hearing pursuant to Pennsylvania 

Rule of Criminal Procedure 907. Appellant filed a counseled response to the 

court’s Pa.R.Crim.P. 907 notice. Specifically, Appellant alleged that guilty 

plea counsel met with him on February 14, 2014, and advised him that a 

plea offer might be made by the Commonwealth. Thereafter, on March 3, 

2014, Appellant “briefly” met with guilty plea counsel, who advised Appellant 

that the Commonwealth, in fact, made an offer of three years probation and 

a $100.00 fine in exchange for Appellant pleading guilty to the two offenses 

indicated supra. Appellant’s Response filed 6/23/15 at 3. Appellant averred 

guilty plea counsel indicated there was “not much else he could do,” that if 

Appellant went to trial it would be “his word against that of Officer Borz[,]” 

and, if convicted, Appellant would face the likelihood of serving jail time. Id.

at 4. However, Appellant emphasized that “[a]t no time either prior to or 
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during this short conversation did [guilty plea counsel] ever discuss the filing 

of pretrial motions or whether there was any legal basis for doing so with 

[Appellant].” Id. (underline omitted).

Moreover, Appellant emphasized that “[a]lthough [he] was advised 

that his license would be suspended, he was not made aware of that until 

just immediately prior to the entry of the plea, with no time given for him to 

consider the consequences thereof.” Id. at 4-5. Also, Appellant averred he 

was not advised of the length of the suspension. Appellant argued that 

guilty plea counsel’s lack of communication, including failing to discuss the 

possibility of filing pretrial motions, discussing the full range of options 

available to Appellant if he proceeded to trial (including his right to testify 

and argue the marijuana was possessed for personal use), failing to advise 

him timely that his driver’s license would be suspended, and failing to advise 

him of the length of the suspension, caused Appellant to enter an 

involuntary guilty plea. 

By order entered on July 24, 2015, the PCRA court dismissed 

Appellant’s PCRA petition without a hearing, and Appellant filed a timely 

notice of appeal. All Pa.R.A.P. 1925 requirements have been met. 

Appellant presents the sole issue for this Court’s review:

[Did] [t]he trial court err[ ] in dismissing the Appellant’s First 

Petition for Relief under the Post Conviction Relief Act without 

first holding an evidentiary hearing and making findings of fact 

and conclusions of law based upon the evidence adduced and a 

determination of the credibility of each witness to be 

presented[?]
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Appellant’s Brief at 9. 

Our standard of review for an order denying post-conviction relief is 

whether the record supports the PCRA court’s determination and whether 

the PCRA court’s determination is free from error. Commonwealth v. 

Franklin, 990 A.2d 795, 797 (Pa.Super. 2010). The PCRA court’s findings 

will not be disturbed unless there is no support for the findings in the 

certified record. Id. 

“[T]he right to an evidentiary hearing on a post-conviction petition is 

not absolute. It is within the PCRA court's discretion to decline to hold a 

hearing if the petitioner's claim is patently frivolous and has no support 

either in the record or other evidence.” Commonwealth v. Walls, 993 

A.2d 289, 295 (Pa.Super. 2010) (citations omitted). In other words, a judge 

may dismiss a PCRA petition without a hearing if the petition is patently 

frivolous and without support in the record, or if the facts alleged therein 

would not, even if proven, entitle the defendant to relief. Pa.R.Crim.P. 907; 

Walls, supra.

It is the responsibility of the reviewing court on appeal to 

examine each issue raised in the PCRA petition in light of the 

record certified before it in order to determine if the PCRA court 

erred in its determination that there were no genuine issues of 

material fact in controversy and in denying relief without 

conducting an evidentiary hearing. 

Walls, 993 A.2d at 295 (citation and quotations omitted). 
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In the case sub judice, Appellant’s PCRA claims allege the ineffective 

assistance of guilty plea counsel. 

To prevail on a claim alleging counsel's ineffectiveness 

under the PCRA, Appellant must demonstrate (1) that the 

underlying claim is of arguable merit; (2) that counsel's course 

of conduct was without a reasonable basis designed to effectuate 

his client's interest; and (3) that he was prejudiced by counsel's 

ineffectiveness, i.e. there is a reasonable probability that but for 

the act or omission in question the outcome of the proceedings 

would have been different.

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

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

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. 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.

[T]he 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.

Commonwealth v. Willis, 68 A.3d 997, 1001-02 (Pa.Super. 2013) 

(quoting Commonwealth v. Wah, 42 A.3d 335, 338 (Pa.Super. 2012)) 

(internal quotation and quotation marks omitted). 

In explaining the reasons it dismissed Appellant’s PCRA petition 

without holding an evidentiary hearing, the PCRA court indicated, in relevant 

part, the following:

All of the claims raised by [Appellant] involve allegations 

concerning the effectiveness of plea counsel, and whether 

counsel’s alleged ineffectiveness caused [Appellant] to enter an 

unknowing, unintelligent, involuntary plea. 

***
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To be valid, a guilty plea must be knowingly, voluntarily, 

and intelligently entered. A court accepting [an appellant’s] 

guilty plea is required to conduct an on-the-record inquiry during 

the plea colloquy. The colloquy must inquire into the following 

areas:

(1) Does the defendant understand the nature of 

the charges to which he is pleading guilty?

(2) Is there a factual basis for the plea?

(3) Does the defendant understand that he has a 

right to trial by jury?

(4) Does the defendant understand that he is 

presumed innocent until he is found guilty?

(5) Is the defendant aware of the permissible 

range of 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?

Moreover, Pennsylvania law presumes that [an appellant] who 

enters a guilty plea was aware of what he was doing. The 

[appellant] bears the burden of proving otherwise. 

***

Here, the record reflects that [Appellant] was advised of 

the nature of the charges to which he was pleading guilty, the 

factual basis for the plea, and his right to a jury trial. 

[Appellant] was also informed of the presumption of innocence 

and the maximum permissible penalties.[2] The record further 

reflects that [Appellant] stated that he was satisfied with the 

services of his attorney. In addition, [Appellant] signed a 

Statement Accompanying Defendant’s Request to Enter a Guilty 

Plea, which was incorporated into the record. That document 

establishes that [Appellant] was advised that as a result of this 

conviction, his driver’s license would be suspended for six 

months. 

PCRA Court Order and Opinion, filed 5/28/2015, at 4-5 (quotation marks, 

quotations, and citations omitted) (footnote added). 

____________________________________________

2 During the guilty plea colloquy, Appellant was also informed that the trial 

judge need not accept the plea agreement. N.T. Guilty Plea, 3/3/14, at 4. 
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Moreover, during the guilty plea colloquy, in reference to the signed

Statement Accompanying Defendant’s Request to Enter a Guilty Plea, which 

contained notice that Appellant’s driver’s license would be suspended for six 

months, the assistant district attorney asked Appellant whether, in light of 

his answers contained therein, it was still his intent to plead guilty and be 

sentenced in accordance with the plea agreement. N.T. Guilty Plea, 3/3/14, 

at 5. Appellant answered affirmatively. Id.

Additionally, as it relates to Appellant’s claim that counsel failed to 

advise him as to the filing of potential pretrial motions, as well as his various 

rights at trial, the record shows that Appellant was aware of these rights and 

made a knowing and voluntary waiver thereof. Specifically, during the guilty 

plea hearing, the following relevant exchange occurred between Appellant 

and the assistant district attorney:

[Assistant District Attorney]: Do you understand that you 

have the right to file various pretrial motions including a writ of 

habeas corpus and a motion to suppress evidence?

[Appellant]: Yes.

[Assistant District Attorney]: Do you understand that if you 

plead guilty, you give up your pretrial and trial rights?

[Appellant]: Yes.

N.T. Guilty Plea, 3/3/14, at 3 (bold added).3 

____________________________________________

3 Moreover, the signed Statement Accompanying Defendant’s Request to 

Enter a Guilty Plea contained the following sentence: “I understand that by 

pleading guilty I am giving up my right to file pre-trial motions, including but 

not limited to a motion for a writ of habeas corpus to dismiss the charges, 

and a motion for suppression of evidence.” The document additionally listed 

(Footnote Continued Next Page)
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As the PCRA court noted in its opinion, “[t]he longstanding rule of 

Pennsylvania law is that a[n appellant] may not challenge a guilty plea by 

claiming that he lied under oath, even if he asserts that counsel induced the 

lies.” PCRA Court Order and Opinion, filed 5/28/2015, at 6 (citing 

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

the oral colloquy and signed written document demonstrate that Appellant 

understood what the plea connoted and its consequences, and Appellant has 

not established the plea was involuntary. Appellant is bound by the 

statements he made during his guilty plea proceedings, and he may not now 

assert grounds for withdrawing the plea which contradict the statements. 

Willis, 68 A.3d at 1009. 

For all of the foregoing reasons, based on the certified record, we 

conclude the PCRA court did not err in determining Appellant’s 

ineffectiveness claims were meritless and there were no genuine issues of 

material fact in controversy. Thus, the PCRA court did not abuse its 

discretion in dismissing Appellant’s PCRA petition without conducting an 

evidentiary hearing. Commonwealth v. Clemmons, 505 Pa. 356, 479 

A.2d 955, 957 (1984) (“Where it is clear that allegations of ineffectiveness of 

counsel are baseless or meritless[,] then an evidentiary hearing is 

(Footnote Continued) _______________________

various trial rights, which Appellant acknowledged he was “giving up” by 

pleading guilty. 
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unnecessary and the unfounded allegations should be rejected and 

dismissed.”).

Affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/17/2016