J-S50026- 14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, Appellee

v. JEAN C. PAGAN-ROSARIO, Appellant : IN THE SUPERIOR COURT OF : PENNSYLVANIA : : : : : : : No. 220 WDA 2014

Appeal from the PCRA Order Entered November 13, 201 3, In the Court of Common Pleas of Erie County, Criminal Division, at No. CP- 25

- CR -0003329-2011.

BEFORE: FORD ELLIOTT, P.J.E., SHOGAN and ALLEN, JJ

. MEMORANDUM BY SHOGAN, J.: FILED OCTOBER 06, 2014 Appellant, Jean C. Pagan-Rosario, appeals from the o rder denying his second timely petition for relief filed pursuant to th e Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541 -9546. We affirm. Appellant was charged with various drug-related offen ses, including felony possession with intent to deliver a controlled su bstance (“PWID”) and

th ree misdemeanors. Pursuant to a plea agreement, the m isdemeanor charges were dropped and Appellant pled guilty to PWI D (heroin). Appellant was sentenced on November 20, 2012 to a mandatory mini mum term ofJ-S50026- 14

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sixty to one-hundred-twenty months of imprisonmen t. 1 No post-sentence motions were filed and no direct appeal followed. An untimely motion for modification of sentence, nunc pro tunc , was filed by Appellant, pro se , on January 17, 2013. 2 The trial court treated the motion as a PCRA petition and appointed the office of the public defender to represent Appellant. In that PCRA petition, Appell ant alleged that 1) trial counsel was ineffective for failing to file a post-senten ce motion or direct appeal despite Appellant’s request and 2) Appellant’s sente nce, of a mandatory minimum of five years of incarceration and a $30,000.00 maximum fine, was improper as he was subject only to a t hree-year mandatory minimum and a $15,000.00 fine. On April 22, 2013, appointed PCRA counsel filed a Turner/Finley 3

“no -m erit” letter, complied with the additional requiremen ts of Turner/Finley

and filed a petition to withdraw as counsel. In addr essing

1 See 42 Pa.C.S. § 9712.1 (“Sentences for certain drug offense s committed with firearms”).

2 Pursuant to the prisoner mailbox rule, Appellant’s pro se PCRA petition is deemed filed on January 17, 2013, the date it was pl aced in the hands of prison authorities for mailing. See Commonwealth v. Crawford , 17 A.3d 1279, 1281 (Pa. Super. 2011) (“Under the prisoner mai lbox rule, we deem a pro se document filed on the date it is placed in the hands of prison authorities for mailing.”).

3 Commonwealth v. Turner , 544 A.2d 927 (Pa. 1988); Commonwealth v. Finley , 550 A.2d 213 (Pa. Super. 1988) ( en banc ).J-S50026- 14

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Appellant’s PCRA issues, the PCRA court determined ther e was no merit to Appellant’s claims that counsel was ineffective fo r failure to file postsentence motions or a direct appeal or that counsel was in effective for failing to explain to Appellant why he faced a five-year ma ndatory minimum sentence. Furthermore, the court concluded that Appella nt’s sentence was not illegal. Appointed PCRA counsel’s petition to withdraw was also g ranted. On May 3, 2013, the PCRA court filed an opinion and notice of its intent to dismiss the petition, and on May 28, 2013, issued a fina l order denying the Appellant PCRA relief. No appeal was filed. On Oct ober 15, 2013, Appellant,

pro se , filed his second PCRA petition which is the basis of t his appeal. 4

The PCRA court issued a notice of intent to dismiss the PCRA petition on October 16, 2013. On October 23, 2013, Appellant filed an amended PCRA petition, prepared by privately-retained counsel . On November 13, 2013, the PCRA court denied Appellant’s pro se and amended petitions. Appellant filed his appeal on December 12, 2013. Appellant raises the following issues on appeal, which we reproduce, verbatim, as follows:

4 Appellant’s judgment of sentence became final on Decemb er 20, 2012, when his time for filing a direct appeal had expired. 42 Pa.C.S. § 9545(b)(3); Pa.R.A.P. 903(a). As such, Appellant h ad until December 20, 2013, to file any PCRA petition, including a second o r subsequent petition. 42 Pa.C.S. § 9545(b)(1). Therefore, Appellant’s pe tition filed on October 15, 2013 was timely.J-S50026- 14

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(a) Whether the Trial Court committed reversible erro r when it denied the Petitioner’s (Defendant’s/Appellant’s) pro se petition and the Amended Petition of October 15, 2013. (b) Whether the Defendant’s guilty plea was kno wingly, voluntarily and intelligently given; if not, whethe r this is a basis to set aside the guilty plea. (c) Whether Attorney E. Hackwelder’s representation of Defendant was ineffective for failing to conduct the ty pe of discovery which Brady v. Maryland 373 U.S. 83 (1963) r equires as to the disclosure of exculpatory and impeachment evid ence; the failure of Attorney Hackwelder to motion to supp ress evidence within thirty (30) days after arraignment; t he failure of defense counsel to challenge the manner in which he was t aken into custody and narcotics and contraband was seized by l aw enforcement without compliance with the Miranda warnin gs; and the failure by defense counsel to challenge the circumstan ces by which it was determined that he was in the possession o f a handgun, as well as failing to challenge a purported co nfession and for failing to file a motion challenging the wei ght of the evidence. (d) Whether the plea colloquy conducted by the trial co urt met the requisite standards required for a knowing, volunt ary and intelligent plea. (e) Whether the Petitioner’s constitutional rights were violated in that he was denied a fair trial and was prejudiced. Appellant’s Brief at 2 -3. When reviewing the propriety of an order granting o r denying PCRA relief, this Court is limited to determining whether the evidence of record supports the determination of the PCRA court and wheth er the ruling is free of legal error. Commonwealth v. Boyd , 923 A.2d 513, 515 (Pa. Super. 2007). Great deference is granted to the findings of the PCRA court, andJ-S50026- 14

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these findings will not be disturbed unless they have no support in the

certified record. Commonwealth v. Wilson , 824 A.2d 331, 333 (Pa. Super. 2003). Because this is a serial petition for post-conviction relie f, Appellant must meet a more stringent standard. In Commonwealth v. Lawson , 549 A.2d 107, 112 (Pa. 1988), our Supreme Court held th at serial postconviction petitions, such as the present one, are also sub ject to a miscarriage- of -justice standard. Lawson , 549 A.2d at 112. A second or any subsequent post-conviction request for rel ief “will not be entertained unless a strong prima facie showing is offered to demonstrate that a miscarriage of justice ma y have occurred.” Commonwealth v. Carpenter , 555 Pa. 434, 725 A.2d 154, 160 (1999) (quoting Commonwealth v. Lawson , 519 Pa. 504, 549 A.2d 107, 112 (1988)). “A petition er makes a prima facie showing if he ‘demonstrates that either the proceedings which resulted in his conviction were so unf air that a miscarriage of justice occurred which no civilized society cou ld tolerate, or that he was innocent of the crimes for whi ch he was charged.’” Id. (quoting Commonwealth v. Morales , 549 Pa. 400, 701 A.2d 516, 520-21 (1997)); see also Commonwealth v. Palmer , 814 A.2d 700, 709 (Pa. Super. 2002).

Commonwealth v. Burkhardt , 833 A.2d 233, 236 (Pa. Super. 2003). 5 With this standard in mind, we examine Appellant’s ma ny allegations. On appeal, Appellant asserts that trial counsel was inef fective: for failing to conduct the type of discovery which Brady v. Maryland 373 U.S. 83 (1963) requires as to the disclosu re of

5 In Commonwealth v. Beasley , 967 A.2d 376, 393-394 (Pa. 2009), our Supreme Court restated Lawson and declined to change it.J-S50026- 14

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exculpatory and impeachment evidence; the failure of Attorney Hackwelder to motion to suppress evidence within thirty (30) days after arraignment; the failure of defense counsel to challenge the manner in which [Appellant] was taken in to custody and narcotics and contraband [were] seized by law enforcement without compliance with the Miranda warnin gs; and the failure by defense counsel to challenge the circumstan ces by which it was determined that he was in the possession of a handgun, as well as failing to challenge a purported co nfession and for failing to file a motion challenging the wei ght of the evidence. Appellant’s Brief at 2. Appellant further maintains that his guilty plea was not knowing, voluntary and intelligent and that the on-the-record colloquy

was insufficient. Id. at 7- 8. 6 Appellant’s eligibility for relief is governed by secti on 9543 of the PCRA, which lists four factors that must be met before s uch relief may be granted. The third factor is stated as follows: § 9543. Eligibility for relief (a) General rule.

-- To be eligible for relief under this subchapter, the petitioner must plead and prove by a preponderance of the evidence all of the following:

* * * (3) That the allegation of error has not been previously litigated or waived.

6 We note that, although Appellant presents five issues in his statement of questions involved, the argument portion of his brief is divided into four sections and the argument sections do not correspond to the issues as designated.J-S50026- 14

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42 Pa.C.S. § 9543(a)(3). The PCRA defines an allega tion of error previously litigated or waived as follows: § 9544. Previous litigation and waiver (a) Previous litigation.

-- For purposes of this subchapter, an issue has been previously litigated if:

* * * (2) the highest appellate court in which the petitioner could have had review as a matter of right has ruled on the merits of the issue; or (3) it has been raised and decided in a proceeding collaterally attacking the conviction or sentence.

* * * (b) Issues waived.

-- For purposes of this subchapter, an issue is waived if the petitioner could have raised it but f ailed to do so before trial, at trial, . . . , on appeal or in a p rior state postconviction proceeding. 42 Pa.C.S. § 9544.

In the case sub judice , Appellant could have raised all of the issues presented herein in his prior PCRA petition. 42 Pa. C.S. § 9544(b). Accordingly, the issues have been waived unless Appellant can establish one of the exceptions under Lawson

. As previously noted, in a second or subsequent post-convict ion proceeding, all issues are waived except those which imp licate a defendant’s innocence or which raise the possibility that the proceed ings resulting in conviction were so unfair that a miscarriage of justice w hich no civilizedJ-S50026- 14

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society can tolerate occurred. Lawson , 549 A.2d at 112. A third exception to the waiver provisions exists: issues involving the leg ality of a sentence, since those types of issues never may be waived. Commonwealth v.

Williams , 660 A.2d 614, 618 (Pa. Super. 1995). All but one of Appellant’s claims, that his guilty pl ea was not knowing, voluntary and intelligent, which will be discussed subseq uently, fail to meet these standards. These allegations neither relate to Ap pellant’s innocence nor do they raise the possibility that the proceedings w ere so unfair that his conviction resulted from a miscarriage of justice which no civilized society

could tolerate. 7 Additionally, Appellant does not raise an allegation of illegality of sentence. 8 Therefore, these claims will not be entertained

herein.

7 In Commonwealth v. Dukeman , 605 A.2d 418, 421 (Pa. Super. 1992), this Court concluded that appellant’s cl aim that his rights pursuant to Miranda v. Arizona , 384 U.S. 436, (1966), were violated was not an issu e relating to his innocence; thus, it was waived. Additi onally, a “miscarriage of justice” will not be found where an appellant asser ts general due proc ess and ineffective assistance of counsel claims. See Commonwealth v. Laskaris , 595 A.2d 1229, 1231-1232 (Pa. Super. 1991) (PCRA court found no miscarriage of justice entitling appellant to PCRA r elief in a due process claim.); Commonwealth v. Szuchon , 633 A.2d 1098, 1099-1100 (Pa. 1993) (no miscarriage of justice found entitling appell ant to PCRA relief where appellant made claims of ineffective assistance of counsel).

8 As noted above, we recognize that we may nonetheless a ddress a legality of sentence issue in a timely PCRA petition. In this regard, we are mindful of the holding of the United States Supreme Court in Alleyne v. United States , 133 S.Ct. 2151 (U.S. 2013), that “[a]ny fact that, by law, increases the penalty for a crime is an ‘element’ tha t must be submitted to the juryJ-S50026- 14

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However, Appellant’s allegation that his plea was not knowingly, voluntarily and intelligently entered, does raise a colorable issue relating to

his innocence and will be entertained on the merits. N onetheless, we conclude that it is refuted by the record. “A valid plea colloquy must delve into six areas: 1) th e nature of the charges, 2) the factual basis of the plea, 3) the right to a jury trial, 4) the presumption of innocence, 5) the sentencing ranges, and 6 ) the plea court’s power to deviate from any recommended sentence.” Commonwealth v.

Morrison , 878 A.2d 102, 107 (Pa. Super. 2005); Pa.R.Crim.P. 590, Comment. Additionally, a written plea colloquy that is read, completed and signed by the defendant and made part of the record m ay serve as the defendant’s plea colloquy when supplemented by an oral , on -the-record

examination. Morrison , 878 A.2d at 108 (citing Comment to Pa.R.Crim.P.

and found beyond a reasonable doubt.” Alleyne , 133 S.Ct. at 2155. This Court has invalidated mandatory minimum sentences impose d pursuant to 42 Pa.C.S. § 9712.1 based upon Alleyne’s mandate. See Commonwealth v. Watley , 81 A.3d 108 (Pa. Super. 2013) ( en banc ); Commonwealth v. Munday , 78 A.3d 661 (Pa. Super. 2013). Nevertheless, we fi nd that the holding in Alleyne does not affect the sentence in the present case because Appellant entered a guilty plea and the sentence impo sed was negotiated as part of the plea agreement. Therefore, Appellant’s sentence does not violate the dictates of Alleyne

. See Commonwealth v. Tobin , 89 A.3d 663, 665 n.1 (Pa. Super. 2014) (stating that because defendant pled guilty to possession with intent to deliver marijuana, and admitt ed to possessing twenty marijuana plants, mandatory minimum sentence i mposed pursuant to 18 Pa.C.S. § 7508 did not violate dictates of Alleyne ). Moreover, Alleyne was decided on June 17, 2013, almost six months after A ppellant’s sentence became final.J-S50026- 14

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590). “[A] plea of guilty will not be deemed invali d if the circumstances surrounding the entry of the plea disclose that the de fendant had a full understanding of the nature and consequences of his plea and that he

k nowingly and voluntarily decided to enter the plea.” Commonwealth v.

Yeomans , 24 A.3d 1044, 1047 (Pa. Super. 2011) (quoting Commonwealth v. Fluharty , 632 A.2d 312, 315 (Pa. Super. 1993)). “Our law presumes that a defendant who enters a guilty plea was aware of what he was doing. He bears the burden of proving otherwi se.” Commonwealth

v. Pollard , 832 A.2d 517, 523 (Pa. Super. 2003) (internal cita tion omitted). The entry of a negotiated plea is a “strong indicator” of the voluntariness of the plea. Commonwealth v. Lewis , 791 A.2d 1227, 1235 (Pa. Super. 2002). In this case, both a written plea colloquy and an ora l on-the-record colloquy took place. Both colloquies complied with the requirements outlined above. Moreover, Appellant has not carried the burden of proving that his plea was not knowingly, intelligently and vo luntarily entered. Indeed, the fact that Appellant entered his plea in response to a negotiated plea agreement strongly indicates that the plea was vol untary. Lewis , 791 A.2d at 1235. As such, we conclude that this claim lack s merit.J-S50026- 14

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The PCRA court’s determinations are supported by the re cord. Thus, we conclude that the PCRA court did not err in denying Appellant’s petition

for relief. Order affirmed. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary Date: 10/6/2014