J-S16012-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

KEITH A. HERBERT 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 224 MDA 2021

Appeal from the PCRA Order Entered January 13, 2021

In the Court of Common Pleas of Schuylkill County 

Criminal Division at No(s): CP-54-CR-0000411-2018

BEFORE: PANELLA, P.J., KUNSELMAN, J., and COLINS, J.*

MEMORANDUM BY PANELLA, P.J.: FILED AUGUST 08, 2022

Keith A. Herbert appeals, pro se, from the order dismissing his petition 

for relief filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. 

§§ 9541-9546. On appeal, Herbert challenges the validity of his guilty plea, 

various aspects of his sentence, and the effectiveness of his prior counsel.

After review, we affirm.

This Court previously summarized the factual history underlying the 

instant matter as follows:

In the early morning hours of February 26, 2018, [Herbert] broke 

into the Unity Café in Shenandoah and subsequently fled the 

scene in a vehicle. Officer[s] Stamets and Bowman were nearby 

in a patrol car when they received a radio report of the burglary. 

After observing [Herbert’s] vehicle traveling westbound on East 

Centre Street, Officer Stamets activated the patrol car’s 

emergency lights and attempted to block [Herbert’s] vehicle from 

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* Retired Senior Judge assigned to the Superior Court.
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fleeing the area. However, [Herbert’s] car collided with the police 

vehicle and [Herbert] ran from his vehicle. After a brief foot chase, 

Officer Stamets apprehended [Herbert].

Commonwealth v. Herbert, 222 A.3d 866, 591 MDA 2019 (Pa. Super. filed 

Oct. 23, 2019) (unpublished memorandum at 1-2).

In 2019, Herbert entered an open guilty plea to one count each of 

burglary, criminal mischief, flight to avoid apprehension, resisting arrest, 

recklessly endangering another person, fleeing or attempting to elude a police 

officer, and driving under the influence of a controlled substance with impaired 

ability to drive (“DUI”).

1

In exchange, the Commonwealth agreed to nolle 

prosse the remaining charges.

At the start of the sentencing hearing, Herbert unsuccessfully sought to 

withdraw his guilty plea. The trial court sentenced Herbert to an aggregate 

term of 11 to 22 years in prison, with credit for time served. The court also 

ordered Herbert to pay the costs of prosecution, a $1,000 fine for the DUI 

conviction, and restitution in the amount of $9,644.45 to Integrated Risk 

Management Insurance Company.

On direct appeal, counsel filed a petition to withdraw and a brief 

pursuant to Anders v. California, 386 U.S. 738 (1967). Herbert did not hire 

alternate counsel or raise any additional issues pro se. This Court permitted 

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1 See 18 Pa.C.S.A. §§ 3502(a)(4), 3305(a)(5), 5126, 5104, 2705; 75 

Pa.C.S.A. §§ 3733, 3802(d)(2).
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appellate counsel to withdraw and affirmed Herbert’s judgment of sentence. 

See Herbert, 591 MDA 2019 (unpublished memorandum).

On September 3, 2020, Herbert filed a timely, pro se PCRA petition. The 

PCRA court appointed Herbert counsel, who filed a motion to withdraw as 

counsel and a Turner/Finley2 no-merit letter. The PCRA court permitted 

counsel to withdraw and issued notice of its intent to dismiss Herbert’s PCRA 

petition without a hearing pursuant to Pa.R.Crim.P. 907. Herbert did not 

respond to the Rule 907 notice, and the PCRA court denied his petition on 

January 13, 2021. The instant appeal followed.3

Our appellate review of the denial of PCRA relief “is limited to examining 

whether the PCRA court’s findings of fact are supported by the record, and 

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

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

3 Herbert’s pro se notice of appeal is facially untimely. The thirtieth day 

following the entry of the order denying Herbert’s PCRA petition was Friday, 

February 12, 2021, and the following Monday was a holiday. See generally

1 Pa.C.S.A. § 1908 (providing that if the last day of a statutory time period 

falls on a weekend or legal holiday, that day shall be omitted from the 

computation of time). Herbert’s pro se notice of appeal was docketed on 

Tuesday, February 16, 2021. Under the prisoner mailbox rule, Herbert’s pro 

se notice of appeal is deemed filed on the date he delivers the filing to prison 

authorities for mailing. See Commonwealth v. Chambers, 35 A.3d 34, 38 

(Pa. Super. 2011). Herbert’s notice of appeal was entered on the docket on 

the first business day following February 12, 2021; it is therefore likely that 

Herbert mailed his notice of appeal before that date. We decline to quash 

Herbert’s appeal. See Commonwealth v. Patterson, 931 A.2d 710, 714 (Pa. 

Super. 2007) (declining to quash facially untimely pro se notice appeal despite 

lack of postmark, where it was apparent from the date of receipt that the pro 

se appellant timely mailed his notice of appeal).
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whether its conclusions of law are free from legal error.” Commonwealth v. 

Koehler, 36 A.3d 121, 131 (Pa. Super. 2012) (citation omitted).

On appeal, Herbert contends his sentence is illegal pursuant to 42 

Pa.C.S.A. § 9726(c). See Appellant’s Brief at 8. Section 9726(c)(2) provides 

that a sentencing court shall not impose a fine “unless it appears of record 

that ... the defendant is or will be able to pay the fine.” 42 Pa.C.S.A. § 

9726(c)(1). Accordingly, Herbert specifically challenges the court’s power to 

impose fines and restitution without conducting an ability to pay hearing. See 

id. at 8-9.4

A challenge to the legality of a sentence cannot be waived so long as 

the reviewing court has jurisdiction. See Commonwealth v. Finnecy, 249 

A.3d 903, 912 (Pa. Super. 2021) (“[S]entencing illegality claims are always 

subject to review under the PCRA when raised in a timely petition.”). In 

considering an illegal sentence claim, “our standard of review is plenary and 

is limited to determining whether the trial court committed an error of law.” 

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4

In this portion of his appellate brief, Herbert also argues the Commonwealth 

erroneously added text to the criminal information, beyond the scope of the 

statutory language, for the offenses of burglary and flight to avoid 

apprehension. See Appellant’s Brief at 10-11. This issue is not identified in his 

statement of questions involved, and Herbert fails to explain why the addition 

of words indicating the requisite mens rea in the criminal information resulted 

in an illegal sentence. See Pa.R.A.P. 2116(a) (“No question will be considered 

unless it is stated in the statement of questions involved or is fairly suggested 

thereby.”). Further, our review of the criminal information reveals no 

misstatements of the law for the challenged offenses.
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Commonwealth v. Hodges, 193 A.3d 428, 433 (Pa. Super. 2018) (citation 

omitted).

Here, Herbert pled guilty to DUI under 75 Pa.C.S.A. § 3802(d)(2). The 

penalties provision at Section 3804 mandates imposition of “a fine of not less 

than $1,000 nor more than $5,000” for a first-time conviction under Section 

3802(d). 75 Pa.C.S.A. § 3804(c)(1)(ii). This Court has specifically held that a 

fine of at least $1,000 is mandatory under Section 3804(c)(1)(ii). See 

Commonwealth v. May, 271 A.3d 475, 482 (Pa. Super. 2022). As a result, 

42 Pa.C.S.A. § 9726(c) is inapplicable to fines imposed under Section 

3802(d)(2) See id. Accordingly, the trial court was not required to conduct an 

ability to pay hearing for the mandatory DUI fine.

Turning to the issue of restitution, we first observe that the trial court 

ordered payment of restitution in this instance as a direct sentence, rather 

than as a condition of probation. See generally Commonwealth v. 

Whatley, 221 A.3d 651, 653-54 (Pa. Super. 2019) (explaining the respective 

purposes of direct restitution and restitution as a probation condition). “In 

criminal proceedings, an order of restitution is not simply an award of 

damages, but is, rather, a sentence.” Commonwealth v. McCabe, 230 A.3d 

1199, 1208 (Pa. Super. 2020). Direct restitution is governed by 18 Pa.C.S.A. 

§ 1106, which provides for mandatory restitution to provide a crime victim 

with compensation for losses resulting from the defendant’s criminal conduct.

See Commonwealth v. Lock, 233 A.3d 888, 891 (Pa. Super. 2020) 
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(explaining the requirement of a “causal nexus between the crime of which 

defendant was convicted and the loss or damage suffered by the victim.” 

(citation omitted)). Section 1106 directs the court to impose full restitution 

“[r]egardless of the current financial resources of the defendant, so as to 

provide the victim with the fullest compensation for the loss.” 18 Pa.C.S.A. § 

1106(c)(1)(i). Therefore, the trial court was not obligated to consider 

Herbert’s ability to pay when it ordered payment of restitution. Because the 

court was not required to consider Herbert’s ability to pay the mandatory fine 

or restitution, Herbert’s illegal sentence claim fails.

Herbert next challenges the 3- to 6-year sentence imposed pursuant to

his conviction for fleeing or attempting to elude a police officer. See

Appellant’s Brief at 12. According to Herbert, he pled guilty to the offense as 

a second-degree misdemeanor, and the trial court imposed an illegal sentence 

beyond the statutory maximum. See id. at 13.

A sentence which exceeds the statutory limits is illegal and is subject to 

correction. See Hodges, 193 A.3d at 433.

Here, Herbert pled guilty to fleeing or attempting to elude a police officer

pursuant to 75 Pa.C.S.A. § 3733(a); however, Herbert ignores his 

simultaneous guilty plea to DUI. The Vehicle Code provides that a Section 

3733 offense “constitutes a felony of the third degree if the driver while fleeing 

or attempting to elude a police officer ... commits a violation of section 3802

(relating to driving under influence of alcohol or controlled substance)[.]” 75 
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Pa.C.S.A. § 3733(a.2)(2)(i). For a third-degree felony, the Crimes Code 

provides for a maximum sentence of 7 years. See 18 Pa.C.S.A. § 1103(3).

Accordingly, Herbert’s sentence of 3 to 6 years for fleeing or attempting to 

elude a police officer is within the statutory limit, and he is not entitled to relief 

on this claim.

In his final claim, Herbert asserts that plea counsel, direct appeal 

counsel, and PCRA counsel were ineffective. See Appellant’s Brief at 13. 

Herbert claims plea counsel was ineffective for failing to (1) object to the 

defective plea colloquy; (2) challenge the absence of an ability to pay hearing; 

and (3) file a motion pursuant to Pa.R.Crim.P. 600. See id. at 13-14. Herbert 

also argues his direct appeal counsel was ineffective for withdrawing pursuant 

to Anders without raising these claims on appeal. See id. at 14. Finally, 

Herbert claims his PCRA counsel was ineffective for failing to raise each of the 

above claims. See id. at 15-16. We will address each of these arguments in 

turn.

Preliminarily, we presume that counsel is effective, and the appellant 

bears the burden of proving otherwise. See Commonwealth v. Bennett, 57 

A.3d 1185, 1195 (Pa. 2012). The appellant must demonstrate that: “(1) the 

underlying legal claim is of arguable merit; (2) counsel’s action or inaction 

lacked any objectively reasonable basis designed to effectuate his client’s 

interest; and (3) prejudice, to the effect that there was a reasonable 

probability of a different outcome if not for counsel’s error.” Commonwealth 
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v. Franklin, 990 A.2d 795, 797 (Pa. Super. 2010) (citation omitted). Failure 

to satisfy any prong of the ineffectiveness test requires rejection of the claim. 

See Commonwealth v. Roane, 142 A.3d 79, 88 (Pa. Super. 2016) (citation 

omitted).

We first consider Herbert’s assertion that counsel rendered ineffective 

assistance in connection with his guilty plea by failing to challenge the validity 

of the colloquy.

5 A criminal defendant is entitled to effective counsel during 

the guilty plea process. See Commonwealth v. Orlando, 156 A.3d 1274, 

1280 (Pa. Super. 2017). “A defendant is permitted to withdraw his guilty plea 

under the PCRA if ineffective assistance of counsel caused the defendant to 

enter an involuntary plea of guilty.” Id. (citation omitted); see also 

Commonwealth v. Morrison, 878 A.2d 102, 105 (Pa. Super. 2005) (en 

banc) (explaining that an appellant must show counsel’s ineffectiveness led to 

an unknowing, involuntary, or unintelligent 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.” Commonwealth v. Kelley, 136 A.3d 1007, 

1012-13 (Pa. Super. 2016) (citations and quotation marks omitted).

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5 Herbert also raises an independent challenge to the validity of his guilty plea. 

See Appellant’s Brief at 7-8. However, Herbert did not allege his guilty plea 

was unlawfully induced. See generally 42 Pa.C.S.A. § 9543(a)(2)(iii). We will 

address the validity of Herbert’s guilty plea as part of our analysis of his 

ineffectiveness claim.
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Pennsylvania Rule of Criminal Procedure 590 requires a trial court to ask 

the following questions to ensure a guilty plea is knowingly, intelligently, and 

voluntarily entered:

(1) Does the defendant understand the nature of the charges to 

which he or she is pleading guilty or nolo contendere?

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

(3) Does the defendant understand that he or she has the right to 

a trial by jury?

(4) Does the defendant understand that he or she is presumed 

innocent until found guilty?

(5) Is the defendant aware of the permissible range of sentencing 

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 agreements?

Pa.R.Crim.P. 590, Cmt. “Once a defendant has entered a plea of guilty, it is 

presumed that he was aware of what he was doing, and the burden of proving 

involuntariness is upon him.” Commonwealth v. Bedell, 954 A.2d 1209, 

1212 (Pa. Super. 2008) (citation omitted). A court may consider the totality 

of the circumstances surrounding the entry of a plea, including whether the 

record is supplemented with a completed written colloquy. See id. at 1212-

13.

Herbert claims that during his guilty plea colloquy, the trial court failed

to confirm that Herbert understood the right to a jury trial and the 

presumption of innocence. This assertion is belied by the record. Herbert 
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completed an extensive written guilty plea colloquy with his attorney. See 

Written Guilty Plea Colloquy, 1/31/19. The written colloquy included each of 

the requisite inquiries under Rule 590. See id. The trial court also conducted 

an oral colloquy on the record, during which Herbert affirmed he had discussed 

his rights with counsel and was satisfied that counsel had answered any 

questions. See N.T., Guilty Plea, 1/31/19, at 5. The court reviewed with 

Herbert the factual basis of the charges, as well as the maximum possible 

sentences and fines for each offense. See id. at 5-8. We conclude Herbert’s 

on-the-record guilty plea colloquy, as supplemented by the completed written 

guilty plea colloquy, establish that Herbert entered a knowing, intelligent, and 

voluntary plea. Because Herbert’s attack on the validity of his guilty plea lacks 

arguable merit, his ineffectiveness claim also fails.

Next, Herbert argues plea counsel should have objected to the court’s 

failure to conduct an ability to pay hearing before imposing a fine and 

restitution. See Appellant’s Brief at 14. As set forth supra, the trial court was 

not required to determine Herbert’s ability to pay under the circumstances of 

this case. Accordingly, the underlying claim lacks merit, Herbert is not entitled 

to relief on this issue. See Commonwealth v. Spotz, 896 A.2d 1191, 1222 

(Pa. 2006) (“[C]ounsel will not be deemed ineffective for failing to raise a 

meritless claim.”).

Herbert also asserts that counsel was ineffective for failing to file a Rule 

600 motion to dismiss because his plea hearing did not take place within 180 
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days of his preliminary hearing. See Appellant’s Brief at 14. However, Herbert 

fails to cite to the pertinent language of Rule 600 or provide adequate 

discussion of this claim. Because Herbert has failed to adequately develop this 

claim for our review, it is waived. See Pa.R.A.P. 2119(a) (providing that the 

argument shall include “such discussion and citation of authorities as are 

deemed pertinent.”); Commonwealth v. McMullen, 745 A.2d 683, 689 (Pa. 

Super. 2000) (stating that “[w]hen the appellant fails to adequately develop 

his argument, meaningful appellate review is not possible.” (citation 

omitted)).

6

Finally, Herbert contends that both his direct appeal and PCRA counsel 

were ineffective for failing to raise any of the above claims.7 See Appellant’s 

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6 Even if Herbert had developed this claim, we would conclude that he is not 

entitled to relief. Where, as here, an action is initiated by criminal complaint,

trial must commence within 365 days after the filing of the complaint. See

Pa.R.Crim.P. 600(A)(2)(a). The criminal complaint was filed February 26, 

2018, and Herbert pled guilty on January 31, 2019, within the 365 days 

required by Rule 600. Because the underlying claim lacks merit, counsel 

cannot be deemed ineffective on this basis.

7 During the pendency of this appeal, the Pennsylvania Supreme Court issued 

its decision in Commonwealth v. Bradley, 261 A.3d 381 (Pa. 2021). The 

Bradley Court held “a PCRA petitioner may, after a PCRA court denies relief, 

and after obtaining new counsel or acting pro se, raise claims of PCRA 

counsel’s ineffectiveness at the first opportunity to do so, even if on appeal.” 

Id. at 401. Instantly, Herbert challenged PCRA counsel’s effectiveness, pro 

se, at his first opportunity following the denial of PCRA relief. See generally 

Commonwealth v. Crumbley, 270 A.3d 1171 (Pa. Super. 2022) (following 

remand from the Supreme Court from reconsideration pursuant to Bradley, 

addressing the merits of appellant’s pre-Bradley challenge to PCRA counsel’s 

effectiveness).
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Brief at 14-16. As we have explained supra, none of Herbert’s claims entitle 

him to relief. Therefore, neither direct appeal nor PCRA counsel can be deemed 

ineffective for failing to raise these issues.

Based upon the foregoing, we affirm the order dismissing Herbert’s 

PCRA petition.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/8/2022