J-S59024-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA 

Appellant

v.

ROBERTO ANTONIO VALENTIN

:

:

:

:

:

:

:

:

:

 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 497 EDA 2019

Appeal from the PCRA Order Entered January 16, 2019

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

No(s): CP-09-CR-0008356-2013

BEFORE: LAZARUS, J., NICHOLS, J., and McLAUGHLIN, J.

MEMORANDUM BY NICHOLS, J.: FILED MAY 22, 2020

The Commonwealth appeals from the order granting in part and denying 

in part the first Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546,

petition filed by Appellee Roberto Antonio Valentin. The Commonwealth 

argues that Appellee failed to establish that but for plea counsel’s 

ineffectiveness, he would not have entered his guilty plea. In relevant part, 

the PCRA court’s order stated that Appellee “shall be permitted to withdraw 

his guilty plea and proceed to trial as he was not advised the sentence could 

be imposed consecutively.” Order, 1/16/19. We affirm.

We state the facts and procedural history as set forth by the PCRA court:

On April 30, 2014, Appellee[, represented by Carla Risoldi, Esq.,]

pled guilty to fourteen (14) counts of acquisition by fraud and 

fourteen (14) counts of forgery. Additionally, Appellee pled nolo 

contendere to one (1) count of attempt of acquisition by fraud, 

one (1) count of criminal use of a communication facility, six (6) 

counts of acquisition by fraud, twenty-nine (29) counts of forgery, 
J-S59024-19

- 2 -

two (2) counts of conspiracy to commit acquisition by fraud, and 

two (2) counts of conspiracy to commit forgery.

[At the plea hearing, the trial court advised Appellee of the 

maximum sentences he could receive, which included (1) up to 

fifteen years’ imprisonment for acquisition by fraud, attempted 

acquisition by fraud, and conspiracy; and (2) up to five years’

imprisonment for forgery. N.T. Guilty Plea Hr’g, 4/30/14, at 9-12. 

The trial court did not advise Appellee that it could impose 

consecutive sentences.]

On June 3, 2014, [the trial court] sentenced Appellee to undergo 

imprisonment for not less than five (5) years to no more than ten 

(10) years to be served consecutively with another term of 

imprisonment for not less than five (5) years to no more than ten 

(10) years. Appellee was placed on probation for ten (10) years 

to be served concurrently with his imprisonment [for an aggregate 

sentence of ten to twenty years’ imprisonment].

On June 9, 2014, Appellee filed a post-sentence motion asking 

[the trial court] to reconsider Appellee’s sentence. On June 27, 

2014, [the trial court] denied Appellee’s post-sentence motion.

PCRA Ct. Op., 6/17/19, at 1-2 (citations omitted).

Appellee did not file a motion to withdraw his guilty plea, either before 

or after he was sentenced. Appellee also did not file a direct appeal 

challenging the voluntariness of his guilty plea. 

On March 31, 2015, Appellee filed a pro se Post-Conviction Relief 

Act (PCRA) petition. . . . [The PCRA court appointed PCRA 

counsel]. 

On December 15, 2017, Appellee filed a counseled [amended] 

PCRA petition alleging many issues but most importantly alleging 

(1) that counsel was ineffective for not advising Appellee of 

potential consecutive sentences and (2) that counsel was 

ineffective for failing to object to [the trial court’s] defective 

colloquy which did not advise Appellee of the possibility of 

consecutive sentences. . . .

PCRA Ct. Op. at 2; see also Am. PCRA Pet. at ¶ 6(b).
J-S59024-19

- 3 -

On May 1, 2018, the PCRA court held a hearing, at which Appellee 

testified that the Commonwealth offered a six to twelve year sentence of 

imprisonment in exchange for pleading guilty. N.T. PCRA Hr’g, 5/1/18, at 36. 

According to Appellee, in deciding whether to take the plea offer, Attorney 

Risoldi led him to believe that he could receive a lighter sentence if he entered 

an open guilty plea. Id. at 36, 44-45.

Ultimately, Appellee decided to enter an open plea, regarding which 

Appellee testified:

[PCRA Counsel]: And [at Appellee’s guilty plea hearing, the trial 

court] didn’t say these [sentences] could be run consecutively, 

and there’s no guarantee that they’re concurrent, did he?

[Appellee]: No, he didn’t.

[PCRA Counsel]: Did [Attorney Risoldi] tell you that?

[Appellee]: No.

Id. at 37. Appellee also testified that when the trial court subsequently 

imposed consecutive sentences, he was “in shock” and asked Attorney Risoldi,

“What’s going on?” Id. at 50. 

The PCRA court held a second hearing on May 22, 2018, at which 

Attorney Risoldi testified. PCRA Ct. Op. at 2. In relevant part, Attorney Risoldi 

testified that she advised Appellee to accept the Commonwealth’s plea bargain 

for a six to twelve year sentence:

[Commonwealth]: . . . You said that -- you testified [when 

questioned by Appellee’s PCRA counsel] that you indicated that 

[Appellee] was warned over and over again to take the deal.
J-S59024-19

- 4 -

[Attorney Risoldi]: That’s correct.

[Commonwealth]: And you’re referencing that six to [twelve]?

[Attorney Risoldi]: Yes.

[Commonwealth]: And who was he warned by?

[Attorney Risoldi]: By me.

[Commonwealth]: Why did you warn him?

[Attorney Risoldi]: Because each one of these drug charges, even 

before they added the new one, he was looking at 15 years and 

$250,000. And I always said, the judge could have a bad morning 

and fight with his wife, and then he’ll sentence you consecutively.

N.T. PCRA Hr’g, 5/22/18, at 55-56. 

“On January 17, 2019, [the PCRA court] granted Appellee’s PCRA 

petition in part and denied it in part. [The PCRA court] permitted Appellee to 

withdraw his guilty plea and proceed to trial because Appellee was not advised 

that his sentence could be imposed consecutively.” PCRA Ct. Op. at 2 

(citations omitted). In relevant part, the PCRA court concluded that “but for 

counsel failing to ensure that Appellee was aware of the potential full range of 

his sentence, Appellee would not have entered into an open guilty plea.” Id.

at 7. The Commonwealth timely appealed and timely filed a court-ordered 

Pa.R.A.P. 1925(b) statement.

The Commonwealth raises one issue:

Did the PCRA court err in granting Appellee post-conviction relief, 

in permitting Appellee to withdraw his plea and proceed to trial, 

on his claim that plea counsel was ineffective for failing to object 

to the plea court’s failure to advise that he could receive 

consecutive sentences and/or for counsel failing [to] advise 
J-S59024-19

- 5 -

Appellee of same where Appellee failed to meet his burden in 

establishing all three prongs of the ineffectiveness test and that 

plea counsel, in fact, caused an involuntary plea?

Commonwealth’s Brief at 4.

The standard of review for an order granting a PCRA petition is wellsettled:

When reviewing an order granting PCRA relief, we must determine 

whether the decision of the PCRA court is supported by the 

evidence of record and is free of legal error. Moreover, we will 

not disturb the findings of the PCRA court unless those findings 

have no support in the certified record.

Commonwealth v. Rivera, 154 A.3d 370, 377 (Pa. Super. 2017) (en banc) 

(citations omitted and formatting altered). “The scope of review is limited to 

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.” Commonwealth v. 

Spotz, 84 A.3d 294, 311 (Pa. 2014).

The Commonwealth asserts that the PCRA court should not have 

granted relief because Appellee failed to establish the three prongs of 

ineffectiveness. Commonwealth’s Brief at 23. The Commonwealth begins by 

arguing that Appellee did not establish “that his underlying claim was of 

merit,” and “the required prejudice.” Id. The Commonwealth points out that 

“Appellee never testified or argued to the PCRA court that had he been advised 

by the court or counsel that the sentences could run consecutively, he would 

not have entered his plea and would have proceeded to trial.” Id. at 23-24. 

Further, according to the Commonwealth, Appellee “never testified that he did 
J-S59024-19

- 6 -

not, in fact, know that the sentences could run consecutively or that he 

believed the sentences would run concurrently . . . .” Id. at 24.

1

With respect to prejudice, the Commonwealth argues that “Appellee was 

required to demonstrate . . . that it was reasonable probably that, but for 

counsel’s errors, he would not have pleaded guilty and would have gone to 

trial.” Id. at 26 (citation omitted and formatting altered). The Commonwealth 

maintains that Appellee failed to “establish this prejudice” and altered the 

burden of proof. Id.2

With respect to credibility, we quote from the Commonwealth’s 

appellate brief:

Of important note, the Commonwealth is not challenging the 

credibility findings of the PCRA court. However, it is unclear what 

credibility findings the PCRA court actually made as the court did 

not specifically identify same. From its Order, which denies all of 

Appellee’s claims but one, the PCRA court apparently rejected a 

portion of Appellee’s testimony. Nevertheless, by granting relief 

____________________________________________

1 The Commonwealth contends that Appellee waived any “direct challenge to 

the voluntariness” of his guilty plea. Commonwealth’s Brief at 24. The 

Commonwealth also contends that Appellee is not appealing the PCRA court’s 

denial of relief for his claim that plea counsel was ineffective “for failing to file 

a direct appeal and/or adequately consult with Appellee regarding a direct 

appeal . . . .” Id. Appellee, however, has consistently couched his claim as 

an ineffective assistance of counsel claim. See PCRA Ct. Op. at 1-2; Am. 

PCRA Pet., 12/15/17, at ¶ 6b. The Commonwealth acknowledges this: 

“Appellee’s challenge to his plea . . . could only be addressed[] in the context 

of ineffective assistance of counsel.” Commonwealth’s Brief at 25.

2 Specifically, the Commonwealth cites Appellee’s memorandum of law filed in 

the PCRA court, which according to the Commonwealth, argued “that the 

prejudice prong was met because PCRA counsel” was unable to establish, on 

the record, that she advised Appellee of the possibility of, essentially, 

consecutive sentences. Commonwealth’s Brief at 26-27.
J-S59024-19

- 7 -

on the sole claim now at issue, the PCRA court presumably 

rejected the testimony of plea counsel wherein she testified that 

she had, in fact, advised [Appellee], prior to his plea, of the 

possibility in an open guilty plea that the sentences could run 

consecutively. The PCRA court apparently accepted Appellee’s 

testimony that counsel did not advise him of same.[fn1]

[fn1] Further, had the PCRA court accepted plea counsel’s testimony 

that she had advised Appellee, in out-of-court discussions, of the 

possibility and risk of consecutive sentences, the court, 

presumably, would have denied relief on the instant claim. . . .

Commonwealth’s Brief at 27 & 27 n.1 (citations omitted).

Notwithstanding its credibility assertions, the Commonwealth contends 

the PCRA court’s “legal conclusions and findings” “are unsupported by the 

record, ignored the proper standard of determining an[] ineffective claim . . . 

and ignored Appellee’s burden of proof.” Id. at 28. The Commonwealth 

presents five reasons why the record, even viewed in Appellee’s favor, do not 

support the PCRA court’s findings. Id.3 

First, the Commonwealth contends that the PCRA court found that 

“Appellee believed he would get less time in an open plea” than the plea 

____________________________________________

3 The Commonwealth notes that after it filed its Rule 1925(b) statement, the 

PCRA court “added and/or expanded” its explanation for its ruling. 

Commonwealth’s Brief at 29 (quoting from pages 6-7 of the PCRA court’s 

opinion); see also id. at 30 (stating, “Respectfully, the PCRA court’s post hoc

assessment in relying on the merits of an allegation it already rejected, 

presumably in an attempt to address the need to find the required prejudice 

prong and its lack thereof after the Commonwealth filed its appeal, is 

improper” (emphasis in original)). To the extent the Commonwealth appears 

to reproach the PCRA court, we note that Rule 1925(a) specifically instructs 

the court to prepare an “opinion of the reasons for the order” at issue in 

response to the filings of the parties. Pa.R.A.P. 1925(a)(1).
J-S59024-19

- 8 -

“offered by the Commonwealth, was already rejected by the . . . PCRA court.” 

Id. at 30 (quoting from the order on appeal). “Second, in a PCRA action, 

neither a defective colloquy nor counsel’s failure to object to same, alone, 

warrants withdrawal of the guilty plea.” Id. at 31. Third, the Commonwealth 

contends that “the PCRA court’s conclusion that ‘but for counsel failing to 

ensure that Appellee was aware of the potential full range of his sentence, 

Appellee would not have entered into an open guilty plea,’ has no support of 

record and Appellee never testified or offered evidence of same.” Id. Fourth, 

the Commonwealth asserts that “the record reflects that Appellee was, at the 

very least, aware of the possibility of consecutive sentences.” Id. at 31-32. 

The Commonwealth refers this Court to two recorded prison phone calls, which 

the Commonwealth argues established Appellee’s awareness of this 

possibility. Id. at 32.4, 5 Fifth and last, the Commonwealth argues Appellee 

is not entitled to relief under Commonwealth v. Persinger, 615 A.2d 1305 

(Pa. 1992), which the PCRA court relied on to grant relief.

6

 Id. at 34-35.

____________________________________________

4 The Commonwealth, however, did not ensure that the exhibit containing the 

recordings of the phone calls at issue was transmitted as part of the certified 

record. Therefore, we may not consider the calls.

5 To the extent the Commonwealth contends Appellee never objected, filed a 

post-sentence motion to withdraw his plea, or sought a direct appeal, see 

Commonwealth’s Brief at 32, the Commonwealth acknowledges that Appellee

is challenging counsel’s ineffectiveness. See, e.g., id. at 26.

6 We expand on the Commonwealth’s fifth claim below.
J-S59024-19

- 9 -

Appellee counters that the PCRA court correctly held that he suffered 

prejudice because of Attorney Risoldi’s “failure to advise him that he could 

receive consecutive sentences as a result of” entering his open plea of guilty. 

Appellee’s Brief at 16. Appellee further asserts that Attorney Risoldi was 

ineffective by not objecting to the trial court’s colloquy, which did not raise 

the possibility of consecutive sentences. Id. “No reasonable basis,” Appellee 

concludes, “could have existed for” Attorney Risoldi’s failures. Id. at 16-17. 

After summarizing well-settled law, Appellee discusses the facts and holding 

of Persinger, id. at 20-21, and explains why Persinger is on point with the 

instant case. Id. at 22-23. Appellee explains that the record established that 

neither the trial court nor Attorney Risoldi advised Appellee that he could 

receive consecutive sentences. Id. at 22-23. 

Appellee also argued he established prejudice because had he known he 

could have received consecutive sentences, he would have accepted the 

Commonwealth’s plea offer for six to twelve years in prison. Id. at 24. 

Appellee contends that because he “did not fully understand the permissible 

ranges of sentences,” his decision to enter a plea was “not voluntarily, 

knowingly, and intelligently entered,” and therefore, he suffered prejudice. 

Id. at 25.7

____________________________________________

7 Appellee also disagrees with the Commonwealth’s interpretation of his prison 

phone calls. Appellee’s Brief at 25-27.
J-S59024-19

- 10 -

It is well-settled that “the PCRA provides the sole means for obtaining . 

. . collateral relief.” Commonwealth v. Yarris, 731 A.2d 581, 586 (Pa. 1999)

(citations omitted). “Where . . . a defendant’s post-conviction claims are 

cognizable under the PCRA, the common law and statutory remedies now 

subsumed by the PCRA are not separately available to the defendant.” Id.

(citation omitted); accord Commonwealth v. Judge, 916 A.2d 511, 520 

(Pa. 2007) (noting, “the PCRA subsumes all forms of collateral relief, including 

habeas corpus, to the extent that a remedy is available under such enactment”

(citation omitted)); Commonwealth v. Fears, 86 A.3d 795, 806 (Pa. 2014) 

(addressing ineffectiveness claim regarding defendant’s guilty plea). 

“While we recognize that the PCRA court’s factual findings and credibility 

determinations are entitled to great deference if they are supported by the 

record, a PCRA court may not base its decision on speculation derived from 

testimony it finds credible.” Commonwealth v. Hackett, 99 A.3d 11, 31

(Pa. 2014) (citation omitted); see also Commonwealth v. Sandusky, 203 

A.3d 1033, 1043 (Pa. Super. 2019) (same). 

To prevail on a claim alleging counsel’s ineffectiveness under the 

PCRA, [the petitioner] must demonstrate (1) that the underlying 

claim is of arguable merit; (2) that counsel’s course of conduct 

was without a reasonable basis designed to effectuate his client’s 

interest; and (3) that he was prejudiced by counsel’s 

ineffectiveness, i.e.[,] there is a reasonable probability that but 

for the act or omission in question the outcome of the proceeding 

would have been different.

Commonwealth v. Grayson, 212 A.3d 1047, 1054 (Pa. Super. 2019)

(citation omitted).
J-S59024-19

- 11 -

In Commonwealth v. Allen, 732 A.2d 582 (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 [the defendant] 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.

Allen, 732 A.2d at 587 (footnote and citations omitted). 

More recently, in Commonwealth v. Steckley, 128 A.3d 826 (Pa. 

Super. 2015), this Court discussed Lafler v. Cooper, 566 U.S. 156 (2012), 

which

explained that a post-conviction petitioner seeking relief on the 

basis that ineffective assistance of counsel caused him or her to 

reject a guilty plea must demonstrate the following circumstance:

[B]ut for the ineffective advice of counsel there is a 

reasonable probability that the plea offer would have been 

presented to the court (i.e., that the defendant would have 

accepted the plea and the prosecution would not have 

withdrawn it in light of intervening circumstances), that the 

court would have accepted its terms, and that the conviction 

or sentence, or both, under the offer’s terms would have 

been less severe than under the judgment and sentence 

that in fact were imposed.

Steckley, 128 A.3d at 832 (citation omitted).8

In Persinger, our Supreme Court addressed “whether the lower courts 

erred in holding that trial counsel was not ineffective for failing to file a motion 

____________________________________________

8 As we note below, the Commonwealth does not raise a challenge under the 

Steckley factors.
J-S59024-19

- 12 -

to withdraw the guilty plea because [the defendant], although informed as to 

the maximum sentence imposable for each count, was not informed that the 

sentences could be imposed consecutively.” Persinger, 615 A.2d at 1306. 

Our Supreme Court also addressed the defendant’s claim that his plea counsel 

was ineffective on direct appeal. Id. When Persinger was decided, 

ineffectiveness claims could be resolved on direct appeal.

The Persinger Court held that plea counsel was ineffective:

[The Persinger] Court determined that the guilty plea colloquy 

was defective and that the plea was not knowingly and 

intelligently entered because the plea transcript failed to reflect 

that the defendant had been informed that consecutive sentences 

could be imposed for his multiple convictions. The record revealed 

that the defendant had been informed by the court only as to the 

permissible range of sentence for each offense, but not that the 

sentences could be imposed consecutively. Thus, this Court held 

that a defendant must be informed that consecutive sentences 

could be imposed in order for a plea to be deemed voluntarily, 

knowingly and intelligently entered.

Commonwealth v. Allen, 732 A.2d 582, 588 (Pa. 1999) (summarizing 

Persinger).

Subsequently, in Commonwealth v. Carter, 656 A.2d 463 (Pa. 1995), 

our Supreme Court addressed on direct appeal whether the defendant’s trial 

counsel was ineffective by failing to object to a defective nolo contendere plea 

because the defendant “was not informed that his sentences could be 

consecutive.” Carter, 656 A.2d at 465. In Carter, the trial court sentenced 

defendant to two consecutive sentences of three to six years’ imprisonment 

for multiple counts of burglary. Id. at 464. The record established that the 
J-S59024-19

- 13 -

defendant was advised of the maximum sentence he could receive for each 

individual crime, which was twenty years’ imprisonment. Id. at 466. The 

Carter Court concluded that although the defendant was not “informed that 

each of the separate sentences could be imposed consecutively,” the 

defendant failed to establish “prejudice on the order of manifest injustice.” 

Id. In denying relief, our Supreme Court reasoned as follows:

[O]ne of the key inquiries to be made is whether [the defendant]

suffered any prejudice from his trial counsel’s alleged inaction. 

Unquestionably, under these circumstances where the aggregate 

sentence falls within the minimum and maximum sentence that 

can be imposed on a single count of the crimes charged, [the 

defendant] was not prejudiced for not being informed of the 

maximum total sentence he risked by pleading nolo contendere. 

He was advised that he risked being sentenced up to twenty years 

on each of his burglary counts. Instead, he received only a total 

of six to twelve years’ incarceration. Accordingly, his trial counsel 

cannot be deemed ineffective for failing to object to the plea 

colloquy.

Id. at 466 (some formatting altered).

Following Carter, our Supreme Court in Allen discussed whether the 

holdings of Persinger and Carter applied in the context of a serial PCRA 

petition. Allen, 732 A.2d at 584. Specifically, the Allen Court addressed the 

defendant’s claim that “his guilty plea was unlawful because he was not 

advised during the colloquy that he could be subject to consecutive 

sentences.” Allen, 732 A.2d at 585. The guilty plea colloquy in question did 

not reflect that the defendant “was advised that the sentences could be 

imposed consecutively,” but that at a subsequent collateral hearing, the 
J-S59024-19

- 14 -

defendant “was aware that he could have received consecutive sentences.”9 

Id. at 585-86. In resolving the issue, the Allen Court initially stated as 

follows: 

It is crucial to note that Persinger was decided on the defendant’s 

direct appeal. Thus, unlike [the defendant] herein, the 

[defendant] in Persinger was not subject to the strict burden of 

proof required for relief under a second PCRA petition. Here, 

because [the defendant]’s ineffectiveness claims are raised in the 

context of his second PCRA petition, [the defendant] must make 

a strong prima facie showing which demonstrates that a 

miscarriage of justice has taken place which no civilized society 

could tolerate, in order to be entitled to relief.

[The defendant] has failed to make any such showing. Rather, 

[the defendant] asks this Court to create a per se rule which 

presumes that a miscarriage of justice has taken place whenever 

a plea colloquy does not contain a record of the trial court 

specifically informing a defendant about the possibility of 

consecutive sentences. For purposes of a second PCRA petition, 

we cannot assume that a miscarriage of justice occurs merely 

because the record does not indicate that the plea colloquy 

informed [the defendant] of the possibility for consecutive 

sentences.

Persinger involved circumstances where neither defense counsel 

nor the trial court advised the [defendant] of the possibility of 

consecutive sentences before the [defendant] entered his plea.

Allen, 732 A.2d at 588 (citation, emphasis, and footnote omitted). 

____________________________________________

9 At the collateral hearing, the defendant “acknowledged an understanding of 

what concurrent sentences were.” Allen, 732 A.2d at 586 n.9. “From this, 

the PCRA court concluded that petitioner must have necessarily understood 

the meaning of consecutive sentencing since he understood the meaning of 

concurrent sentencing.” Id.
J-S59024-19

- 15 -

The Allen Court reviewed the record and held the defendant was not 

entitled to PCRA relief:

Here, [the defendant] offered portions of the record which 

demonstrated that the trial court failed to advise him during the 

guilty plea colloquy that his sentences could be consecutive in 

addition to his own testimony. Thus, one of the threshold inquiries 

the PCRA court had to make was whether [the defendant]’s 

testimony concerning his alleged lack of knowledge of the 

possibility for the imposition of consecutive sentences prior to the 

entry of the guilty plea was credible. The PCRA court found 

that [the defendant] was not credible.

Id. at 590 (emphasis added). The Allen Court affirmed the denial of PCRA 

relief, holding 

that a trial court’s failure to inform a defendant of the possibility 

of consecutive sentences during a plea colloquy does not 

automatically amount to a miscarriage of justice which no civilized 

society could tolerate for purposes of a second PCRA petition. 

Rather, a court shall look at the totality of the circumstances 

surrounding the plea to determine whether relief is warranted 

under the PCRA.

Id. (formatting altered). Importantly, although the trial court in Allen erred, 

the Allen PCRA court found the Allen defendant’s testimony not credible 

regarding his ignorance that he could be sentenced consecutively. Id.

More recently, in Commonwealth v. Diehl, 61 A.3d 265 (Pa. Super. 

2013), the Court found the defendant’s plea counsel was ineffective and 

reversed the PCRA court’s denial of the defendant’s first PCRA petition. Diehl, 

61 A.3d at 266. In Diehl, the defendant entered an open guilty plea to 

multiple offenses:

During the hearing, the court advised [the defendant] of the 

maximum sentence he could receive for each charge. The longest 
J-S59024-19

- 16 -

maximum term about which [the defendant] was advised for any 

individual charge was twenty years. At no time during the plea 

hearing did the court, the Commonwealth or [the defendant’s] 

counsel advise him of the possibility of consecutive sentences. 

The record contains no written colloquy or other document 

through which [the defendant] was advised of that possibility. At 

a later sentencing hearing, the court sentenced [the defendant] 

to consecutive penalties aggregating to not less than twenty and 

not more than forty years’ incarceration.

Id.

The defendant in Diehl filed a PCRA petition claiming plea counsel was 

ineffective by 

not informing [the defendant that] he could receive consecutive 

sentences for not objecting to the plea court’s failure to advise 

[the defendant] of that possibility and for not moving to withdraw 

[the defendant’s] guilty plea on the basis that the plea was invalid 

because [the defendant] was unaware of the potential for 

consecutive sentences when he pled guilty.

Id. at 267. 

At the PCRA evidentiary hearing, plea counsel testified that “he did not 

recognize the plea court failed to tell [the defendant] about the consecutivepenalty potential” and therefore “the court’s failure could serve as a basis to 

withdraw the plea.” Id. The defendant’s testimony “was largely consistent 

with that of his [plea] counsel.” Id. at 268. The PCRA court denied relief, 

and the defendant appealed to this Court. Id.

Applying the holdings of both Persinger and Carter, the Diehl Court 

held that the record established that the defendant “was not told by the court, 

the Commonwealth or his counsel about the potential maximum penalty he 

faced by virtue of possible consecutive sentences.” Id. at 269. The Diehl
J-S59024-19

- 17 -

Court noted that the defendant was sentenced to twenty to forty years’

incarceration despite the plea court advising the defendant that twenty years’

incarceration “was the longest possible maximum term.” Id. The Diehl Court 

continued:

[The defendant’s] lack of knowledge about his maximum 

sentencing exposure together with the fact that he was sentenced 

above the maximum exposure about which he was aware 

rendered his plea unknowing, involuntary and unintelligent. His 

plea constituted a manifest injustice. Therefore, there were 

meritorious grounds upon which plea/sentencing counsel should 

have moved to withdraw the plea. Because there were 

meritorious grounds for the motion, there is a reasonable 

probability that, had counsel filed that motion, the outcome of this 

case would have been different—i.e., the motion would have been 

granted, and the plea would have been withdrawn instead of 

remaining as it has until now. [The defendant] was prejudiced by 

counsel’s inaction. In this way, this case is like Persinger where 

the court held the [defendant] was prejudiced when counsel failed 

to move for post-sentence plea withdrawal and there were 

meritorious grounds to do so—specifically, the same grounds that 

exist here.

Id. at 271 (citation omitted). For these reasons, because the defendant’s 

“plea constituted a manifest injustice,” id., the Diehl Court vacated the PCRA 

court’s order denying relief and remanded with instructions to have the PCRA 

court enter an order finding plea counsel was ineffective and withdrawing the 

defendant’s guilty plea. Id. at 272. 

We address the Commonwealth’s primary argument that Appellee failed 

to establish his underlying claim had merit and prejudice. Commonwealth’s 

Brief at 23. We begin by acknowledging the Commonwealth’s credibility 

argument. Id. at 27 & 27 n.1. We agree with the Commonwealth’s 
J-S59024-19

- 18 -

observation that by granting relief on Appellee’s “sole claim now at issue, the 

PCRA court presumably rejected the testimony of” Attorney Risoldi and 

“apparently accepted Appellee’s testimony that counsel did not advise him” of 

the possibility of consecutive sentences. Id. We also agree with the 

Commonwealth’s observation that “had the PCRA court accepted [Attorney 

Risoldi’s] testimony that she had advised Appellee . . . of the possibility and 

risk of consecutive sentences, the [PCRA] court, presumably, would have 

denied relief on the instant claim.” Id. Although the PCRA court did not make 

any explicit credibility determinations, by granting Appellee relief on his claim, 

the PCRA court must have presumably rejected Attorney Risoldi’s testimony

that she advised Appellee of the possibility of consecutive sentences. See id.; 

see N.T. PCRA Hr’g, 5/22/18, at 55-56; Hackett, 99 A.3d at 31 (recognizing 

that the PCRA court’s credibility determinations are entitled to great 

deference); Sandusky, 203 A.3d at 1043. 

Initially, the Commonwealth argues that “Appellee never testified or 

argued . . . that [he had] been advised by the court or counsel” of the 

possibility of consecutive sentences. Commonwealth’s Brief at 23-24. The 

Commonwealth also contends that Appellee never testified that he did not 

know his sentences could run consecutively. Id. at 24. The record, however, 

establishes that Appellee testified that he was not informed by the trial court 

or plea counsel that he could have been sentenced to consecutive sentences. 

N.T. PCRA Hr’g, 5/1/18, at 37 (testifying that neither the trial court nor 
J-S59024-19

- 19 -

Attorney Risoldi told him that the sentences “could be run consecutively, and 

there’s no guarantee that they’re concurrent”). Appellee asserted that he was 

shocked by the consecutive nature of his sentence, id. at 50, and, indeed, 

raised this claim in his PCRA petition. See Am. PCRA Pet. at ¶ 6b. Although 

Appellee never explicitly “testified that he was unaware that the sentences 

could be consecutive or . . . would run concurrently,” Commonwealth’s Brief 

at 34, Appellee stated he believed that he would receive a maximum of twelve 

years’ imprisonment. See N.T. PCRA Hr’g, 5/1/18, at 44-45. 

As noted above, the Commonwealth contended that Appellee failed to 

establish prejudice, i.e., failed to demonstrate a reasonable probability that 

but for counsel’s errors, Appellee “would not have pleaded guilty and would 

have gone to trial.” Commonwealth’s Brief at 26.10 In support, the 

Commonwealth lists five reasons, which we summarized above. See id. at 

30-35. With respect to the Commonwealth’s first reason—the PCRA court 

rejected Appellee’s belief that he would get less time in an open plea—it is not 

entirely clear what the Commonwealth is suggesting. The question is not 

whether Appellee believed he would receive less time if he accepted an open 

plea. The question is whether Appellee established ineffective assistance of 

____________________________________________

10 As noted above, the Commonwealth did not raise a challenge under the 

Steckley factors and therefore waived such a challenge on appeal. 
J-S59024-19

- 20 -

counsel as a result of not being informed of the possibility of consecutive 

sentences. See Persinger, 615 A.2d at 1306. 

We also disagree with the Commonwealth’s second assertion that 

“neither a defective colloquy nor counsel’s failure to object to same, alone, 

warrants withdrawal of the guilty plea.” See Commonwealth’s Brief at 31. In 

Diehl, the Court stated that the defendant’s “lack of knowledge about his 

maximum sentencing exposure together with the fact that he was sentenced 

above the maximum exposure about which he was aware rendered his plea 

unknowing, involuntary and unintelligent. His plea constituted a manifest 

injustice.” See Diehl, 61 A.3d at 271. The Diehl Court held that the 

defendant “was prejudiced by counsel’s inaction.” Id.

The Commonwealth’s third contention, that Appellee never testified or 

offered evidence that he would not have entered an open guilty plea had he 

known of the potential full range of his sentence is also unsupported by the 

record. At the PCRA hearing, Appellee testified that he believed he would 

have received a lower sentence by entering an open guilty plea than if he 

accepted the Commonwealth’s plea offer. See N.T. PCRA Hr’g, 5/1/18, at 36, 

44-45. Appellee testified at the PCRA hearing that he was never informed of 

the possibility of consecutive sentences by entering an open guilty plea. See 

id. at 37.

With respect to the Commonwealth’s fourth contention challenging 

Appellee’s awareness of the possibility of consecutive sentences, as noted 
J-S59024-19

- 21 -

above, the Commonwealth did not transmit the exhibit it cited to this Court 

as part of the certified record, and it was not included in the reproduced 

record. Therefore, we may not consider the two prison calls. See Pa.R.A.P. 

1921.

We turn to the Commonwealth’s fifth and last argument, which attempts

to distinguish Persinger. Commonwealth’s Brief at 34-35. First, the 

Commonwealth asserts that Appellee “never testified that he was unaware 

that the sentences could be consecutive or that he actually believed the 

sentences would run concurrently.”11 Id. at 34; see N.T. PCRA Hr’g, 5/1/18, 

at 44-45. Second, the Commonwealth points out that Persinger was decided 

when the law permitted courts to resolve claims of counsel’s ineffectiveness 

on direct appeal. Id. at 35. 

Initially, it is well settled that the holdings of Persinger and Carter

apply in the PCRA context, including a first or subsequent PCRA petition. See 

Diehl, 61 A.3d at 266; see also Allen, 732 A.2d at 584. We therefore 

examine whether the facts of this case are more akin to Carter and Allen, in 

which no manifest injustice was found under the particular facts of those 

cases, or Diehl, in which this Court held the defendant established manifest 

injustice and that plea counsel was ineffective. 

____________________________________________

11 We resolved this assertion above when we noted Appellee testified as to his 

belief that he would receive a maximum sentence of twelve years in prison. 

See N.T. PCRA Hr’g, 5/1/18, at 36.
J-S59024-19

- 22 -

As in Diehl, Appellee was unaware that his maximum sentencing 

exposure could be aggregated. See Diehl, 61 A.3d at 271. Similar to Diehl, 

the instant trial court sentenced Appellee to an aggregate sentence (ten to 

twenty years’ imprisonment), which exceeded the fifteen years’ 

imprisonment, which was the maximum exposure recited at this guilty plea 

hearing. See N.T. Guilty Plea Hr’g at 9-12; Diehl, 61 A.3d at 271. To 

paraphrase the Diehl Court, Appellee was not informed by the 

Commonwealth, counsel, or the trial court “about the potential maximum 

penalty he faced by virtue of possible consecutive sentences.” See Diehl, 61 

A.3d at 269. As the Diehl Court concluded, there are meritorious grounds 

upon which Attorney Risoldi should have moved to withdraw the plea. See 

id. at 271 (citing Persinger, 615 A.2d at 1308). 

Further, the facts of this case are unlike the facts of Allen or Carter. 

Unlike the defendant in Allen, Appellee never testified that he was aware he 

could have received consecutive sentences. See Allen, 732 A.2d at 585-86. 

Similarly, Appellee, unlike the defendant in Carter, received an aggregate 

sentence (ten to twenty years’ imprisonment) that exceeded the maximum 

single-count sentence (fifteen years’ imprisonment). Here, the record 

establishes that Appellee was aware of the statutory maximum imprisonment 

for each charge, but was unaware of the possibility of consecutive sentencing. 

See Diehl, 61 A.3d at 269 (discussing Carter, 656 A.2d at 466). Therefore, 

to the extent the Commonwealth has argued Persinger should not apply 
J-S59024-19

- 23 -

because Appellee is pursuing collateral relief, our Courts have disagreed. See, 

e.g., Allen, 732 A.2d at 588; Diehl, 61 A.3d at 271. Accordingly, because 

the PCRA court’s order is supported by the record and free from legal error, 

we affirm.12 See Rivera, 154 A.3d at 377; Grayson, 212 A.3d at 1051.

Order affirmed. Commonwealth’s application to amend brief granted.13

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/22/20

____________________________________________

12 As quoted above, we are aware of the Steckley Court’s discussion of Lafler. 

The Commonwealth did not cite, let alone discuss, Steckley or the prejudice 

that a defendant is required to establish in regards to accepting a plea offer. 

The Commonwealth’s appellate argument is narrowly focused on whether 

Appellee established that “but for counsel’s errors, he would not have pleaded 

guilty and would have gone to trial.” Commonwealth’s Brief at 35 (citation 

omitted and emphasis added). The Commonwealth did not argue any of the 

factors discussed by the Steckley Court. The Commonwealth limited its 

argument, as resolved above, to whether Appellee was aware or should have 

been aware that his sentences could be imposed consecutively. 

13 The Commonwealth filed its appellate brief with an incorrect cover page. 

We grant the Commonwealth’s application to amend its brief to include a 

corrected cover page.