J-S69026-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

JUAN CARLOS GONZALEZ 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 133 MDA 2018

Appeal from the PCRA Order December 21, 2017

In the Court of Common Pleas of Lancaster County Criminal Division at 

No(s): CP-36-CR-0002032-2012, 

CP-36-CR-0002033-2012

BEFORE: BENDER, P.J.E., LAZARUS, J., and MURRAY, J.

MEMORANDUM BY LAZARUS, J.: FILED NOVEMBER 16, 2018

Juan Carlos Gonzalez appeals, pro se, from the order, entered in the 

Court of Common Pleas of Lancaster County, denying his petition filed 

pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-

9546. Upon careful review, we affirm.

Gonzalez’s convictions stem from multiple robberies he committed in 

late 2011 and early 2012. He entered pleas of guilty to a total of four counts 

of robbery and one count of conspiracy to commit robbery at two separate 

bills and was sentenced to an aggregate term of imprisonment of 17 to 34 

years. This Court affirmed his judgment of sentence on September 27, 2013. 

Gonzalez filed his first PCRA petition in 2014, raising claims invoking

Alleyne v. United States, 570 U.S. 99 (2013), and Commonwealth v. 
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Newman, 99 A.3d 86 (Pa. Super. 2014) (en banc).1 The court determined 

that he was entitled to relief and, after a new sentencing hearing, resentenced 

him to 17 to 34 years’ imprisonment on November 16, 2015. Gonzalez 

appealed his new sentence and court-appointed counsel filed a motion to 

withdraw pursuant to Anders/Santiago.

2

 On August 31, 2016, this Court 

affirmed Gonzalez’s judgment of sentence and granted counsel’s motion to 

withdraw.

On April 12, 2017, Gonzalez filed a timely PCRA petition and the court 

appointed counsel. On August 23, 2017, counsel filed a Turner/Finley3 “nomerit” letter and motion to withdraw as counsel. On October 23, 2017, the 

PCRA court issued a notice of intent to dismiss pursuant to Pa.R.Crim.P 907. 

Gonzalez did not respond and, by order dated December 21, 2017, the PCRA 

court dismissed his petition.

This timely appeal follows, in which Gonzalez raises the following issues 

for our review:4

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1

In Alleyne, the U.S. Supreme Court held that any fact that increases the 

penalty for a crime beyond the prescribed statutory minimum sentence must 

be submitted to a jury. In Newman, this Court held that Alleyne would apply 

retroactively to case pending on direct appeal when Alleyne was issued.

2 See Anders v. California, 386 U.S. 738 (1967); Commonwealth v. 

Santiago, 978 A.2d 349, 361 (Pa. 2009).

3 See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); 

Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).

4 We have rephrased and consolidated Gonzalez’s claims for ease of 

disposition.
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1. Gonzalez’s plea was not entered knowingly and intelligently 

because plea counsel misled him as to his possible sentence.

2. Counsel was ineffective for failing to present mitigating factors 

at sentencing.

Brief of Appellant, at 4.

We begin by noting our scope and standard of review in this matter:

We review an order dismissing a petition under the PCRA in the 

light most favorable to the prevailing party at the PCRA level.

Commonwealth v. Burkett, 5 A.3d 1260, 1267 (Pa. Super.

2010). This review is limited to the findings of the PCRA court and 

the evidence of record. Id. We will not disturb a PCRA court’s 

ruling if it is supported by evidence of record and is free of legal 

error. Id. This Court may affirm a PCRA court’s decision on any 

grounds if the record supports it. Id. Further, we grant great 

deference to the factual findings of the PCRA court and will not 

disturb those findings unless they have no support in the record. 

Commonwealth v. Carter, 21 A.3d 680, 682 (Pa. Super. 2011). 

However, we afford no such deference to its legal conclusions. 

Commonwealth v. Paddy, [] 15 A.3d 431, 442 ([Pa.] 2011); 

Commonwealth v. Reaves, [] 923 A.2d 1119, 1124 ([Pa.] 

2007). Where the petitioner raises questions of law, our standard 

of review is de novo and our scope of review plenary. 

Commonwealth v. Colavita, [] 993 A.2d 874, 886 ([Pa.] 2010).

Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012).

Both of Gonzalez’s claims assert the ineffectiveness of counsel. 

Counsel is presumed effective and will only be deemed ineffective 

if the petitioner demonstrates that counsel’s performance was 

deficient and he was prejudiced by that deficient performance. 

Prejudice is established if there is a reasonable probability that, 

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

been different. A reasonable probability is a probability sufficient 

to undermine confidence in the outcome.

To [prevail on a claim of] ineffective assistance of counsel, a 

petitioner must plead and prove: (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 
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act or failure to act. If a petitioner fails to plead or meet any 

elements of the above-cited test, his claim must fail.

Id. 

Gonzalez first asserts that his guilty plea was not knowing or intelligent 

because counsel incorrectly advised him that he would receive a sentence of 

61⁄2 to 15 years. Gonzalez is entitled to no relief.5

“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) (citation omitted). Where a defendant enters a 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.” Commonwealth v. Hickman, 799 A.2d 136, 141 (Pa. 

Super. 2002) (citations and internal quotation marks omitted).

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5 While the PCRA court and the Commonwealth both assert that the 

voluntariness of Gonzalez’s sentence has been previously litigated, we 

disagree. In our August 31, 2016 memorandum decision disposing of 

Gonzalez’s appeal after resentencing, we stated the following: “Appellant has 

not challenged the validity of his guilty plea, and we agree with counsel that 

the oral colloquy conducted by the trial court at the time of Appellant’s plea 

was sufficient to assure that the plea was properly made.” Commonwealth 

v. Gonzalez, 2072 MDA 2015 (Pa. Super. filed 8/31/16) (unpublished 

memorandum). However, as we noted, Gonzalez had not challenged the 

validity of his guilty plea in that appeal and, thus, our statement was mere 

dicta. Dicta is “an opinion by a court on a question that is directly involved, 

briefed, and argued by counsel, and even passed on by the court, but that is 

not essential to the decision. Dicta has no precedential value.” Castellani v. 

Scranton Times, L.P., 124 A.3d 1229, 1246 (Pa. 2015), quoting Valley 

Twp. v. City of Coatesville, 894 A.2d 885, 889 (Pa. Cmwlth. 2006). 

Accordingly, the validity of Gonzalez’s plea has not been previously litigated. 
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In Commonwealth v. Allen, 732 A.2d 582, 587 (Pa. 1999), our 

Supreme Court stated:

Allegations of ineffectiveness in connection with the entry of a 

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

caused appellant to enter an involuntary or unknowing plea. In 

determining whether a guilty plea was entered knowingly and 

intelligently, a reviewing court must review all of the 

circumstances surrounding the entry of that plea.

Id. (citations omitted). To establish prejudice, a petitioner must plead and 

prove that there is a reasonable probability that, but for counsel’s errors, he 

would not have pled guilty and would have insisted on going to trial. 

Commonwealth v. Barndt, 74 A.3d 185, 192 (Pa. Super. 2013) (quotation 

marks and citations omitted).

A valid guilty plea colloquy must delve into six areas: (1) the nature of 

the charges; (2) the factual basis for the plea; (3) the right to a jury trial; (4) 

the presumption of innocence; (5) the maximum sentencing ranges; and (6) 

the plea court’s power to deviate from any recommended sentence. See 

Commonwealth v. Flanagan, 854 A.2d 489, 500 n.8 (Pa. 2004); 

Pa.R.Crim.P. 590 cmt. In determining whether a guilty plea was entered 

knowingly and voluntarily, a court is free to consider the totality of the 

circumstances surrounding the plea. Commonwealth v. Bedell, 954 A.2d 

1209, 1212 (Pa. Super. 2008) (citations omitted). Furthermore, nothing in 

Rule 590 precludes the supplementation of the oral colloquy by a written 

colloquy that is read, completed, and signed by the defendant and made a 

part of the plea proceedings. Id. at 1212-13; see also Pa.R.Crim.P. 590,
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cmt. Finally, a defendant “who elects to plead guilty is bound by the 

statements he makes in open court while under oath and he may not later 

assert grounds for withdrawing the plea which contradict the statements he 

made at his plea colloquy.” Commonwealth v. Pollard, 832 A.2d 517, 523 

(Pa. Super. 2003) (citation omitted).

Here, Gonzalez claims that “any counsel[,] along with the common pleas 

court[,] could have and should have almost immediately detected [his] 

limitations” with regard to his ability to read, write and understand English. 

Brief of Appellant, at 7. Gonzalez further argues that “the record does not 

reflect that [he] was made aware . . . that [he] faced such time to which he 

was sentence[d].” Id. Gonzalez is entitled to no relief. 

At the guilty plea hearing in this matter, the court engaged in a lengthy 

colloquy with Gonzalez, who communicated with the court in English 

throughout the process. During the colloquy, the court advised Gonzalez of 

the maximum possible sentence for each charge, as well as the aggregate 

maximum that he faced. See N.T. Guilty Plea, 10/10/12, at 3-5. The court 

further advised him of the nature of the charges against him; the factual bases 

for the plea; the right to a jury trial; and the presumption of innocence. Id.

at 3-4, 6. Additionally, the following exchange occurred between the court 

and Gonzalez:

THE COURT: Whose decision is it to plead guilty here?

THE DEFENDANT: Mine.
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THE COURT: Has anyone made any representation to you as to 

what my sentence is going to be in return for your guilty plea?

THE DEFENDANT: (No audible response.)

THE COURT: No?

THE DEFENDANT: No. 

THE COURT: Has anyone made any threats against you in return 

for your plea?

THE DEFENDANT: No. 

THE COURT: Are you satisfied with Mr. Cooper’s representation?

THE DEFENDANT: Yep. 

Id. at 7. Gonzalez also admitted to the crimes, stating that he was “sorry for 

what I did. I didn’t mean to do it, you know. I apologize.” Id. at 11. Finally, 

Gonzalez completed a written plea colloquy, which he reviewed with his 

counsel. See id. at 5. 

In sum, Gonzalez’s claim that “there was no basis for him to plead 

guilty,” Brief of Appellant, at 7, and that he was unaware of the possible 

sentence that he faced is belied by the record. Because the record 

demonstrates that Gonzalez’s plea was entered knowingly, voluntarily and 

intelligently, he cannot demonstrate that plea counsel was ineffective. Allen, 

supra. 

Gonzalez next asserts that counsel was ineffective for failing to present 

mitigating factors at sentencing. Specifically, Gonzalez claims that counsel 

should have emphasized that, in committing the robberies, he used a BB gun 

which was never pointed at anyone and that he was addicted to heroin at the 
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time he committed his crimes. Because Gonzalez’s claim has been previously 

litigated, he is entitled to no relief. See 42 Pa.C.S.A. § 9543(a)(3).

In his initial direct appeal to this Court, Gonzalez claimed, inter alia, 

that the court did not adequately consider mitigating factors. As this Court 

has repeatedly held that a claim of inadequate consideration of mitigating 

factors does not raise a substantial question for our review, see 

Commonwealth v. Downing, 990 A.2d 788, 794 (Pa. Super. 2010), we 

concluded that his claim did not raise a substantial question. Accordingly, “the 

highest appellate court in which [Gonzalez] could have had review as a matter 

of right has ruled on the merits of the issue[.]” 42 Pa.C.S.A. § 9544(a)(2).6 

Although Gonzalez was subsequently resentenced to correct an Alleyne

violation, Gonzalez’s original sentence – which had already been upheld by 

this court – was reimposed. Because previously-litigated claims may not form 

____________________________________________

6 Although we concluded Gonzalez did not raise a substantial question, we 

went on to address the merits of the claim and found that:

the court’s statements demonstrate that it considered 

[Gonzalez’s] personal characteristics, history, and other 

mitigating factors. However, the court chose not to weigh those 

factors as heavily as [Gonzalez’s] prior criminal history, his failure 

to rehabilitate himself, and the threat he poses to society. This 

does not amount to an abuse of the court’s discretion, especially 

where the court had the benefit of a presentence report and 

imposed standard range sentences. 

Gonzalez, supra at 7. 

Moreover, Gonzalez’s original sentencing transcript reveals that counsel did, 

in fact, raise the issue of his heroin addiction, as well as the fact that he used 

a BB gun and did not point it at anyone during the robberies. See N.T. Guilty 

Plea/Sentencing, 10/10/12, at 9-10.
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a basis for PCRA relief, see 42 Pa.C.S.A. § 9543(a)(3), Gonzalez’s claim is 

meritless.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/16/2018