J-S60038-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

RONALD DRAYTON 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 191 MDA 2019

Appeal from the PCRA Order Entered January 29, 2019

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

No(s): CP-40-CR-0004335-2015

BEFORE: SHOGAN, J., STABILE, J., and PELLEGRINI, J.*

DISSENTING MEMORANDUM BY SHOGAN, J.: FILED JANUARY 02, 2020

My learned colleagues in the Majority present a persuasive analysis in 

this matter. However, upon review of the certified record, I conclude that 

Appellant has failed to establish that trial counsel was ineffective with regard 

to the entry of Appellant’s guilty plea. Hence, I am compelled to respectfully 

register my dissent.

The issue presented to the Court, as rephrased by the majority, is: “Did 

counsel’s misadvi[c]e regarding the consequences of [Appellant’s] plea render 

the plea involuntary?” Majority Memorandum at 6 (citing Appellant’s Brief at 

3). In granting relief, the Majority states, “the meritorious basis of 

[Appellant’s] ineffectiveness claim concerns ... the unfulfilled promise that 

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* Retired Senior Judge assigned to the Superior Court.
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[Appellant] would never serve any portion of the state sentence in state 

custody or on state parole after the federal prison term had concluded.” 

Majority Memorandum at 9 (emphasis in original). Upon review of the 

relevant law and the certified record, I disagree with this conclusion.

When reviewing the propriety of an order denying PCRA relief, we 

consider the record “in the light most favorable to the prevailing party at the 

PCRA level.” Commonwealth v. Stultz, 114 A.3d 865, 872 (Pa. Super. 

2015) (quoting Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super. 2014) 

(en banc)). This Court is limited to determining whether the evidence of 

record supports the conclusions of the PCRA court and whether the ruling is 

free of legal error. Commonwealth v. Rykard, 55 A.3d 1177, 1183 (Pa. 

Super. 2012). We grant great deference to the PCRA court’s findings that are 

supported in the record and will not disturb them unless they have no support 

in the certified record. Commonwealth v. Rigg, 84 A.3d 1080, 1084 (Pa. 

Super. 2014).

Our Supreme Court has long stated that in order to succeed on a claim 

of ineffective assistance of counsel, an appellant must demonstrate that (1) 

the underlying claim is of arguable merit; (2) counsel’s performance lacked a 

reasonable basis; and (3) the ineffectiveness of counsel caused the appellant 

prejudice. Commonwealth v. Pierce, 786 A.2d 203, 213 (Pa. 2001). It is 

presumed that the petitioner’s counsel was effective, unless the petitioner 

proves otherwise. Commonwealth v. Williams, 732 A.2d 1167, 1177 (Pa. 
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1999). Furthermore, claims of ineffective assistance of counsel are not selfproving. Commonwealth v. Wharton, 811 A.2d 978, 986 (Pa. 2002).

It is clear that a criminal defendant’s right to effective counsel extends 

to the plea process, as well as during trial. Commonwealth v. Allen, 833 

A.2d 800, 802 (Pa. Super. 2003) (citing Commonwealth v. Hickman, 799 

A.2d 136, 141 (Pa. Super. 2002)). However:

allegations 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.’”

Id. (quoting Hickman). Our law does not require that a defendant be totally 

pleased with the outcome of his decision to plead guilty, only that his decision 

be voluntary, knowing, and intelligent. Commonwealth v. Baldwin, 760 

A.2d 883, 885 (Pa. Super. 2000).

In Commonwealth v. McCauley, 797 A.2d 920 (Pa. Super. 2001), we 

explained that

[o]nce 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. Therefore, where the record clearly 

demonstrates that a guilty plea colloquy was 

conducted, during which it became evident that the 

defendant understood the nature of the charges 

against him, the voluntariness of the plea is 

established. A defendant is bound by the statements 

he makes during his plea colloquy, and may not assert 

grounds for withdrawing the plea that contradict 

statements made when he pled.
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Commonwealth v. Stork, 737 A.2d 789, 790-791 (Pa. Super. 

1999), appeal denied, 564 Pa. 709, 764 A.2d 1068 (2000) 

(citations and quotations omitted). Determining whether a 

defendant understood the connotations of his plea and its 

consequences requires an examination of the totality of the 

circumstances surrounding the plea. [Commonwealth v. Yager, 

685 A.2d 1000 (Pa. Super. 1996)].

In order to determine the voluntariness of the plea 

and whether the defendant acted knowingly and 

intelligently, the trial court must, at a minimum, 

inquire into the following six 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 ranges 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?

Commonwealth v. Young, 695 A.2d 414, 417 (Pa. Super. 

1997).

McCauley, 797 A.2d at 922.

This Court has long stated that “even if there is an omission or defect in 

the guilty plea colloquy, the guilty plea will not be deemed invalid if the 
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circumstances surrounding the entry of the plea reveal that the defendant fully 

understood the nature and consequences of his ... plea and that he ... 

knowingly and voluntarily decided to plead guilty.” Commonwealth v. 

Blackwell, 647 A.2d 915, 921-922 (Pa. Super. 1994) (citing 

Commonwealth v. Fluharty, 632 A.2d 312 (Pa. Super. 1993)). A defendant 

may knowingly and voluntarily plead guilty as a matter of strategy or 

expedience even though he or she is unable or unwilling to admit guilt 

regarding the crime(s) charged. Id. at 922. Thus, the court’s inquiry should 

focus on whether the appellant understood what he was doing by specifically 

looking at the plea colloquy to determine whether he did or did not understand 

the plea. Id.

The PCRA court addressed Appellant’s claim of ineffective assistance of 

counsel with the following cogent analysis in its opinion filed pursuant to 

Pa.R.A.P. 1925(a):

A thorough review of the record in the instant matter 

supports the [PCRA c]ourt’s conclusion that [Appellant] failed to 

show that counsel’s stewardship resulted in an unknowing, 

involuntary or unintelligent plea. [Appellant] was extensively 

questioned at the May 5, 2017 guilty plea hearing to ensure the 

soundness of his decision. Further, the validity of his responses, 

as well as his review and comprehension of the signed written 

guilty plea colloquy, was confirmed at the January 29, 2019 PCRA 

hearing.

[Appellant] claims that based on counsel’s advice, he agreed 

to plead guilty and to request that his state sentence run 

concurrently to his federal sentence, so that he could serve the 

entirety of the state sentence in the federal facility. As the record 

clearly shows, however, prior to the [c]ourt’s acceptance of 

[Appellant’s] guilty plea, [Appellant] was fully informed that the 
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[c]ourt was not bound by any agreements reached by the parties 

regarding sentencing, but could instead impose any sentence it 

saw fit, and that the [c]ourt could not guarantee that [Appellant] 

would serve his state sentence entirely in a federal facility. N.T. 

5/5/17, at 6-8; N.T. 1/29/19 at 13-14. Guilty Plea Agreement and 

Colloquy of Defendant signed 5/5/17 at 2-3. Thus [Appellant] was 

clearly informed that whatever assumptions he and counsel had 

made regarding the sentence did not bind the [c]ourt, and would 

not necessarily come to pass. After being so informed and 

acknowledging receipt of that information, [Appellant] 

nevertheless chose to go forward with the plea process. As such, 

he cannot now claim that his counsel’s stewardship led to his entry 

into a guilty plea that was not knowing, voluntary and intelligent.

PCRA Court Opinion, 5/24/19, at 4-5. I agree.

My review of the record belies Appellant’s assertion that he was induced 

by ineffective defense counsel to enter his plea involuntarily. The following 

portion of the oral guilty plea colloquy informs my conclusion:

[THE COURT]: Has anyone promised you anything to plead guilty 

other than your plea agreement?

[APPELLANT]: Yes.

[THE COURT]: Okay. What other promises were made to you 

other than your plea agreement? Is somebody promising you 

something to get [you to] plead guilty today, or are you pleading 

of your own free will?

[APPELLANT]: Well, I was promised a certain sentence with 

respect to my plea, yes.

[THE COURT]: Okay.

THE COURT: What is the sentence --
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[ASSISTANT ATTORNEY GENERAL]: Judge, he may 

be referencing Subparagraph 4[B][1] of the guilty plea 

agreement in which the Commonwealth has agreed 

not to oppose [Appellant’s] request to serve any 

sentence imposed by this [c]ourt concurrently with 

the sentence he’s currently serving in Federal Court.

THE COURT: Okay. Is that what you’re referring to, 

a concurrent sentence?

[APPELLANT]: Yes. For the most part, yes.

THE COURT: Okay. You said for the most part. Are 

there any other promises that were made to get you 

to plead guilty today?

[APPELLANT]: Aside from the concurrent sentence, 

the fact that I wouldn’t serve any time in a state 

penitentiary.

THE COURT: I’m not sure that – is that agreed to?

[ASSISTANT ATTORNEY GENERAL]: Not by the 

Commonwealth, Your Honor.

N.T., 5/5/17, at 6-8 (emphasis added). This exchange between Appellant, 

the trial court, and the assistant attorney general establishes that Appellant 

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1 The written guilty plea agreement and colloquy contains the following term 

and condition at Subparagraph 4(B):

B. The Commonwealth will not oppose [Appellant’s] request to 

the sentencing court that any term of incarceration be served 

concurrently with the sentence of incarceration imposed upon 

[Appellant] by the United States District Court for the Middle 

District of Pennsylvania in the case of United States of America v. 

Ronald Drayton, 3:14-CR-00305-EMK-4.

Guilty Plea Agreement and Colloquy, 5/5/17, at 2, ¶4(B) (emphasis in 

original).
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was informed the Commonwealth was not agreeing with Appellant’s 

suggestion that he would not serve any time in a state prison. Accordingly, I 

conclude that, prior to entry of his plea, Appellant was aware that there was 

no promise that he would not serve a portion of his sentence in state prison.

Moreover, the written guilty plea colloquy contains the following 

acknowledgement, which further restrains Appellant’s argument that he 

entered his guilty plea in anticipation of any particular sentence:

8. THE SENTENCING COURT IS NOT BOUND BY ANY TERM AS TO 

SENTENCE CONTAINED IN THIS AGREEMENT. I acknowledge that 

any terms related to a sentence set forth in paragraph 4 above 

are not binding on the [c]ourt and I have not been guaranteed a 

specific sentence in exchange for this plea. The [c]ourt retains 

the power to decide my sentence.

Guilty Plea Agreement and Colloquy, 5/5/17, at 3, ¶8 (capitalization in 

original).

Hence, the certified record reflects Appellant was informed at the guilty 

plea hearing that the Commonwealth was not in agreement with Appellant’s 

belief that he would only serve his sentence in federal prison. In addition, the 

signed written colloquy acknowledges that Appellant was not guaranteed a 

specific sentence in exchange for his guilty plea. Consequently, there is no 

support for the assertion that Appellant’s guilty plea was based upon trial 

counsel’s promise of a particular sentence being served in a particular prison. 

Therefore, I conclude that there is no merit to the underlying claim that trial 

counsel was ineffective in advising Appellant to enter the guilty plea. The law 

does not require that Appellant be completely satisfied with the outcome of 
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his decision to plead guilty. Baldwin, 760 A.2d at 885. The law only requires 

that a plea be voluntary, knowing, and intelligent. Id. 

In conclusion, after examining the totality of circumstances surrounding 

the entry of the plea, I am satisfied that Appellant had a full understanding of 

the nature and consequences of his plea and that he knowingly and voluntarily 

decided to enter the plea. Accordingly, it is my determination that his claim 

of defense counsel ineffective assistance in this regard lacks merit, and I would 

affirm the decision of the PCRA court.