J-S21025-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

JAVIER HUMBERTO TORO

Appellant No. 752 EDA 2015

Appeal from the PCRA Order February 17, 2015

In the Court of Common Pleas of Lehigh County

Criminal Division at No(s): CP-39-CR-0001159-2013,

CP-39-CR-0004647-2012, CP-39-CR-0004650-2012,

CP-39-CR-0004656-2012

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

MEMORANDUM BY LAZARUS, J.: FILED FEBRUARY 26, 2016

Javier Humberto Toro1appeals from the order of the Court of Common 

Pleas of Lehigh County dismissing his petition filed pursuant to the Post 

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

review, we affirm.

On September 19, 2013, Toro entered an open plea of guilty to two 

separate counts of robbery (F1), and one count each of theft by unlawful 

taking, simple assault, disorderly conduct, and driving under suspension. 

____________________________________________

*

Former Justice specially assigned to the Superior Court.

1

Portions of the trial court record refer to the appellant as “Javier Toro 

Delgado.” Our docket reflects his name as “Javier Humberto Toro” and that 

is the name used herein.
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The Commonwealth agreed that Toro’s sentences would run concurrently to 

one another. On November 4, 2013, the trial court sentenced Toro to 

concurrent terms of ten to twenty years’ imprisonment on the robbery 

convictions, as well as concurrent terms of 1 to 2 years for theft by unlawful 

taking, 1 to 2 years for simple assault, and 90 days on the summary count 

of disorderly conduct. Toro filed a motion for reconsideration of sentence, 

which was denied on November 14, 2013. Toro did not file a direct appeal.

On October 31, 2014, Toro filed a pro se PCRA petition. The court 

appointed counsel, who filed an amended petition on December 24, 2014. 

Toro claimed that plea counsel’s ineffectiveness caused him to enter an 

involuntary guilty plea. A hearing was held on February 6, 2015, at which 

Toro and his plea counsel, Steven Mills, Esquire, testified. By order dated 

February 17, 2015, the court dismissed Toro’s PCRA petition. This timely 

appealed followed, in which Toro raises the following issue for our review:

Whether the trial court erred in denying [Toro’s] petition for 

post-conviction relief when credible testimony was presented 

indicating that [plea counsel] unlawfully induced [Toro] to plead 

guilty by promising him a five and one-half to eleven year 

sentence?

Brief of Appellant, at 4.

Our standard and scope of review for the denial of a PCRA petition is 

well-settled. We review the PCRA court’s findings of fact to determine 

whether they are supported by the record, and review its conclusions of law 

to determine whether they are free from legal error. Commonwealth v. 

Spotz, 84 A.3d 294, 311 (Pa. 2014). The scope of our review is limited to 
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the findings of the PCRA court and the evidence of record, viewed in the light 

most favorable to the prevailing party at the trial level. Id.

Toro’s claim raises the ineffectiveness of counsel. To establish 

counsel’s ineffectiveness, a petitioner must demonstrate: (1) the underlying 

claim has arguable merit; (2) counsel had no reasonable basis for the course 

of action or inaction chosen; and (3) counsel’s action or inaction prejudiced 

the petitioner. Commonwealth v. Burno, 94 A.3d 956, 964 n.5 (Pa. 

2014); Strickland v. Washington, 466 U.S. 668 (1984). 

A failure to satisfy any prong of the ineffectiveness test requires 

rejection of the claim. The burden of proving ineffectiveness 

rests with the Appellant. To sustain a claim of ineffectiveness, 

Appellant must prove that the strategy employed by trial counsel 

was so unreasonable that no competent lawyer would have 

chosen that course of conduct. Trial counsel will not be deemed 

ineffective for failing to pursue a meritless claim. 

Commonwealth v. Rega, 933 A.2d 997, 1019 (Pa. 2007).

Toro asserts that he entered an involuntary plea. In order to 

determine whether a defendant entered a plea knowingly, intentionally, and 

voluntarily, we must examine the plea colloquy. At a minimum, a plea 

colloquy must inform a defendant of: (1) the nature of the charges; (2) the 

factual basis for the plea; (3) the right to be tried by a jury; (4) the 

presumption of innocence; (5) the permissible range of sentences; and (6) 

the fact that the judge is not bound by the terms of any plea agreement. 

Commonwealth v. Bedell, 954 A.2d 1209, 1212 (Pa. Super. 2008). The 

adequacy of the plea colloquy and the voluntariness of the resulting plea 

must be ascertained based on the totality of the circumstances surrounding 
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the entry of the plea. Commonwealth v. Muhammad, 794 A.2d 378, 383-

84 (Pa. Super. 2002). During the course of a plea colloquy, a defendant has 

a duty to answer questions truthfully and cannot later assert that he lied 

under oath. Commonwealth v. Turetsky, 925 A.2d 876 (Pa. Super. 

2007). 

Here, Toro claims that counsel was ineffective for coercing him to 

plead guilty based upon counsel’s assurance that Toro would receive a 

sentence of five and a half to eleven years’ incarceration. At the PCRA 

hearing, both Toro and his mother testified that counsel made this promise 

to them both on multiple occasions. Upon review of the record, Toro’s claim 

is meritless. 

At the PCRA hearing, Attorney Mills testified he informed Toro that the 

Commonwealth would request a sentence of seven years of incarceration 

and that the only agreement reached with the Commonwealth was that all 

sentences imposed would run concurrently. Attorney Mills also testified that 

he advised Toro as to the possible maximum sentence he could receive. 

Lastly, Attorney Mills stated that he did not discuss possible sentences with 

any of Toro’s family members. The PCRA court credited Attorney Mills’ 

testimony.

 Moreover, our review of the sentencing proceedings indicates that 

Toro knowingly, intelligently, and voluntarily pled guilty. The court 

explained to Toro that there was no agreement as to the length of his 

sentence, other than they would run concurrently. Toro confirmed his 
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understanding of this. Toro also responded in the affirmative when asked if 

he was satisfied with Attorney Mills’ work. The court recited the rights Toro 

would be giving up by entering a guilty plea and Toro indicated that he 

understood. He responded in the negative when asked if there were any 

promises made to him to coerce him to plead guilty. After listening to the 

facts as the district attorney stated them, Toro admitted committing each 

offense and agreed that the facts as stated by the assistant district attorney 

were accurate. Toro acknowledged the maximum penalties for the offenses 

to which he was pleading guilty. Lastly, Toro read and signed a written plea 

colloquy and acknowledged to the court that he understood the document. 

The court concluded that Toro’s guilty plea was knowingly, intelligently, and 

voluntarily made. Id. at 23-24. 

In sum, Toro’s claim that he entered an involuntary plea is clearly 

belied by the testimony of plea counsel, Toro’s own statements under oath, 

and the trial court’s thorough and comprehensive written and oral plea 

colloquies. Toro cannot prevail on an ineffectiveness claim simply because 

he did not receive the sentence he had hoped to receive. Accordingly, the 

PCRA court properly denied relief.

Order affirmed. 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/26/2016