Opinion
J-S13023-18 No. 1112 WDA 2017
10-10-2018
COMMONWEALTH OF PENNSYLVANIA v. DONALD JOHN DIETRICH, JR. Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order July 18, 2017
In the Court of Common Pleas of Erie County Criminal Division at No(s): CP-25-CR-0000471-2015, CP-25-CR-0002396-1994 BEFORE: GANTMAN, P.J., SHOGAN, J., and MUSMANNO, J. MEMORANDUM BY SHOGAN, J.:
Donald John Dietrich, Jr. ("Appellant") appeals pro se from the order denying his petition for relief filed under the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S. §§ 9541-9546. We vacate and remand.
At docket number CR 2396 of 1994, Appellant entered a guilty plea on June 16, 1995, to charges of possession of a controlled substance; possession with intent to deliver; criminal conspiracy—delivery of a controlled substance; corrupt organizations; and delivery of a controlled substance. On July 24, 1995, the trial court imposed a sentence of incarceration for an aggregate term of four to ten years on counts I-III, V, VI, followed by ten years of probation at count IV-corrupt organizations ("Count IV"). Appellant filed a post-sentence motion, which the trial court denied. Although Appellant filed a direct appeal, he discontinued it on December 27, 1995.
35 P.S. §§ 780-113(a)(16), (a)(30), 18 Pa. C.S. §§ 903, 911(b)(3), 35 P.S. § 780-113(a)(3), respectively. The charges stemmed from Appellant's participation in a drug trafficking organization that was transporting large quantities of marijuana from Florida to Pennsylvania. Commonwealth v. Dietrich , 697 A.2d 274, 744 PGH 1996 (Pa. Super. filed December 17, 1996) (unpublished memorandum at 1, n.1).
Appellant then filed a pro se PCRA petition on January 17, 1996. Appointed counsel filed an amended petition on February 12, 1996. The PCRA court denied the petition on April 16, 1996, and Appellant appealed. We affirmed the denial of relief, and the Pennsylvania Supreme Court denied Appellant's petition for allowance of appeal. Commonwealth v. Dietrich , 697 A.2d 274, 744 PGH 1996 (Pa. Super. filed December 17, 1996) (unpublished memorandum), appeal denied, 703 A.2d 466, 65 W.D.ALLOC. 1997 (Pa. 1997). Thereafter, Appellant repeatedly violated his probation and was resentenced on June 15, 2010, and October 6, 2014.
At docket number CR 471 of 2015, Appellant pled guilty on March 22, 2016, to charges of driving under the dnfluence ("DUI"): highest rate of alcohol—third offense; habitual offenders; and accident involving damage to attended vehicle or property. Appellant's convictions at CR 471 of 2015 constituted a violation of Appellant's probation at CR 2396 of 1994. Consequently, the trial court conducted a revocation and sentencing hearing on May 6, 2016. After finding that Appellant violated his probation at CR 2396 of 1994, Count IV, the trial court resentenced Appellant to incarceration for eighteen months to three years, with 241 days of credit for time served. N.T., 5/6/16, at 13-14. The trial court then sentenced Appellant at CR 471 of 2015 as follows:
75 Pa.C.S. §§ 3802(c), 6503.1, and 3743(a), respectively. These charges stemmed from Appellant driving while intoxicated on December 3, 2014, crossing the center line and "striking the side of a vehicle driven by Angela Wood." N.T., 3/22/16, at 9.
We note a discrepancy between the revocation/sentencing notes of testimony, in which Appellant's probation officer requested credit for 268 days of time served, and the sentencing order, which includes a credit of 241 days of time served. N.T., 5/6/16, at 14; Sentencing Order, 5/6/16.
At Count 1 . . . 18 months to 3 years at the state institution consecutive to his incarceration sentence for his probation [at Count IV]. As to the habitual offenders offense, . . . six months to two years, consecutive to Count 1. And Count 3 is 6 months to 1 year, concurrent to Count 2.N.T., 5/6/16, at 14. Appellant did not file a direct appeal from either sentence. Rather, he filed the PCRA petition underlying this appeal on December 23, 2016.
The PCRA court appointed counsel, who filed a "no merit" letter and a petition for leave to withdraw on March 29, 2017. On May 9, 2017, the PCRA court sent notice of its intent to dismiss Appellant's petition and directed Appellant to file objections within twenty days. Following the grant of an extension of time until June 13, 2017, Appellant filed objections on June 16, 2017. The PCRA court denied Appellant's petition as failing to state grounds on which relief may be granted on July 18, 2017. This pro se appeal followed on July 28, 2017. Appellant and the PCRA court complied with Pa.R.A.P. 1925.
Preliminarily, we note that Appellant has failed to comply with our appellate rules in a significant way. "Appellate briefs must conform materially to the requirements of the Pennsylvania Rules of Appellate Procedure, and this Court may quash or dismiss an appeal if the defect in the brief is substantial." Commonwealth v. Tchirkow , 160 A.3d 798, 804 (Pa. Super. 2017); Pa.R.A.P. 2101. "Although this Court is willing to construe liberally materials filed by a pro se litigant, a pro se appellant enjoys no special benefit. Accordingly, pro se litigants must comply with the procedural rules set forth in the Pennsylvania Rules of the Court." Id.
Appellant's brief fails to comply with Pa.R.A.P. 2116(a). That rule requires a Statement of Questions Involved and, notably, demands that "[n]o question will be considered unless it is stated in the statement of questions involved or is fairly suggested thereby." Pa.R.A.P. 2116(a). Additionally, Appellant's brief fails to comply with Pa.R.A.P. 2119(a). That rule requires that "[t]he argument shall be divided into as many parts as there are questions to be argued; and shall have at the head of each part--in distinctive type or in type distinctively displayed--the particular point treated therein, followed by such discussion and citation of authorities as are deemed pertinent." Pa.R.A.P. 2119(a). Despite these admonitions, we have chosen to overlook the defects in Appellant's pro se brief and to consider the issues discernable from his argument section.
Appellant raised eight issues in his Pa.R.A.P. 1925(b) Statement of Errors Complained of on Appeal. The PCRA court consolidated Appellant's eight claims into four issues:
(1) whether [the PCRA court] properly dismissed Appellant's PCRA Petition after finding and concluding Appellant entered into his guilty plea voluntarily, knowingly and intelligently [formerly Appellant's first, second, third, fourth and sixth issues]; (2) whether the record supported the offense of Habitual [Offender], pursuant to 75 Pa. C.S. §6503.1 [formerly Appellant's fifth issue]; (3) whether [the PCRA court] properly calculated Appellant's credit for time served at docket no. CR 2396 of 1994 [formerly Appellant's seventh issue]; and (4) whether Appellant's Court-appointed PCRA counsel, William J. Hathaway, Esq., was effective in submitting his "No Merit Letter" and Petition for Leave to Withdraw as Counsel [formerly Appellant's eighth issue].PCRA Court Opinion, 9/25/17, at 1 (brackets in original). We note that Appellant has not raised any argument on appeal that PCRA counsel was ineffective in submitting a "no merit" letter and requesting leave to withdraw. We further note with disapproval that the Commonwealth provides a bare minimum response to Appellant's issues. Commonwealth's Brief at 1-3.
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. Mason , 130 A.3d 601, 617 (Pa. 2015); 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. Robinson , 139 A.3d 178, 185 (Pa. 2016). The PCRA court's findings will not be disturbed unless there is no support for them in the certified record. Commonwealth v. Lippert , 85 A.3d 1095, 1100 (Pa. Super. 2014).
Appellant first contends that the evidence did not support his designation as an habitual offender under 75 Pa.C.S. § 1542(a). Appellant's Brief at 5. A pure sufficiency claim is not cognizable under the PCRA. 42 Pa.C.S. § 9543(a)(2)(i-vii); see also Commonwealth v. Price , 876 A.2d 988, 995 (Pa. Super. 2005) (instructing that challenges to the sufficiency of the evidence are not cognizable under the PCRA). Therefore, we decline to address it.
Appellant's claim that his "license has never been revoked as [an] habitual offender," Appellant's Brief at 6, misconstrues the offense of Habitual Offender. The Department of Transportation "shall revoke the operating privilege of any person . . . whose driving record . . . shows that such person has accumulated [three convictions] for the separate and distinct offenses described and enumerated in subsection (b). . . ." 75 Pa.C.S. § 1542(a). The summary offense of driving with a suspended or revoked operating privilege is one of the enumerated offenses. Id. at (b)(1.2); 75 Pa.C.S. § 1543(a). However, when "[an] habitual offender under section 1542 . . . drives . . . while [their] operating privilege is suspended, revoked or canceled [he] commits a misdemeanor of the second degree." 75 Pa.C.S. § 6503.1.
Contrary to Appellant's understanding, his multiple convictions for offenses enumerated in 75 Pa.C.S. § 1542(b) rendered him an habitual offender. N.T., 5/6/16, at 7-8. See PCRA Court Opinion, 9/25/17, at 12-13 ("Appellant's criminal record supports the offense of Habitual Offender charged at docket no. CR 471 of 2015."). Thus, the combination of Appellant's status as an habitual offender and his driving with a revoked license supported the charge at count II of CR 471 of 2015, as a violation of 75 Pa.C.S. § 6503.1.
In contrast, Appellant's next claim, a challenge to the legality of the trial court's failure to award him credit for time served, is cognizable under the PCRA. Appellant's Brief at 14. See Commonwealth v. Beck , 848 A.2d 987, 989 (Pa. Super. 2004) ("An appellant's challenge to the trial court's failure to award credit for time spent in custody prior to sentencing involves the legality of sentence."). Thus, we shall review it.
Appellant complains that the trial court failed to give him credit for 184 days of time served on Count IV. Appellant's Brief at 14. According to Appellant, he "was incarcerated from April 21, 2010 to October 21, 2010 and did not receive this credit even though it was on the credit sheet at sentencing." Id. (citing PCRA Court Opinion, 9/25/17, at Exhibit 1).
With regard to awarding credit for time served, the Sentencing Code provides, in relevant part, as follows:
After reviewing the information submitted under [S]ection 9737 (relating to report of outstanding charges and sentences) the court shall give credit as follows:
42 Pa.C.S. § 9760(1).(1) Credit against the maximum term and any minimum term shall be given to the defendant for all time spent in custody as a result of the criminal charge for which a prison sentence is imposed or as a result of the conduct on which such a charge is based. Credit shall include credit for time spent in custody prior to trial, during trial, pending sentence, and pending the resolution of an appeal.
The PCRA court summarized the procedural backdrop of this issue as follows:
Due to violations of his probation, Appellant was confined to the Erie County Prison on April 21st, 2010 on a parole detainer issued by the Pennsylvania Board of Probation and Parole. A Gagnon II hearing was scheduled before [the trial court] on May 17th, 2010. Appellant, by and through his then-counsel, Elliot J. Segel, Esq., filed a Motion for Continuance of Gagnon II hearing on May 14th, 2010, which [the trial court] granted (continuing the Gagnon II hearing to June 15th, 2010). Attorney Segel filed a Petition for Leave to Withdraw as Counsel on June 4th, 2010, which [the trial court] granted. Following a Gagnon II hearing on June 15th, 2010, at which Stephen J. Lagner, III, Esq., made a verbal Entry of Appearance, [the trial court] sentenced Appellant as follows:
• Count Four (Corrupt Organizations): six (6) months to twenty-three and one-half (23 ½) months of county incarceration, with fifty-nine (59) days of credit for time served, followed by four (4) years of county probation.
PCRA Court Opinion, 9/25/17, at 3. Citing 42 Pa.C.S. § 9760, the PCRA court then rejected Appellant's claim with the following analysis:
Appellant, by and through Attorney Lagner, filed a Motion to Request Early Parole on August 24th, 2010, which [the trial court] granted on October 21st, 2010 (parole granted effective the same day).
At the time of sentencing on May 6, 2016 regarding docket no. CR 2396 of 1994, [the trial court] applied two hundred forty-one (241) days of credit for time served. Appellant was arrested at this docket on September 18, 2014 and began a separate MDJ [Magisterial District Judge] sentence on September 25th, 2014, which Appellant was not given credit for. Thus, Appellant received seven (7) days of credit for time served [9/18/14 ? 9/24/14]. Thereafter, following the conclusion of Appellant's MDJ sentence on October 3rd, 2014, Appellant was sentenced on October 4th, 2014 at docket no. CR 2396 of 1994 and was incarcerated until he was paroled on October 23rd, 2014. Thus, Appellant received twenty (20) days of credit for time served [10/4/14 ? 10/23/14]. Finally, Appellant was arrested at this docket on October 6th, 2015 and was incarcerated until his sentencing on May 6th, 2016. Thus, Appellant received two hundred fourteen (214) days of credit for time served [10/6/15 ? 5/6/16]. Therefore, the record clearly demonstrates [the trial court's] award of two hundred forty-one (241) days of credit for time served is supported by the calculations of the Erie County Office of Clerk of Courts and, therefore, is proper.PCRA Court Opinion, 9/25/17, at 13-14 (citation omitted).
We have explained that:
[w]hen a parolee or probationer is detained pending a revocation hearing, due process requires a determination at a pre-revocation hearing, a Gagnon I hearing, that probable cause exists to believe that a violation has been committed. Where a finding of probable cause is made, a second, more comprehensive hearing, a Gagnon II hearing, is required before a final revocation decision can be made.Commonwealth v. Sims , 770 A.2d 346, 349 (Pa. Super. 2001) (citations omitted); Gagnon v. Scarpelli , 411 U.S. 778 (1973).
Our review of the sentencing order confirms that the trial court granted Appellant credit totaling 241 days for time served during the period of September 18, 2014, to May 6, 2016. Sentencing Order, 5/6/16; PCRA Court Opinion, 9/25/17, at 13-14. However, for the conviction at Count IV, Appellant contends that he also served a term of incarceration of 184 days from April 21, 2010, to October 21, 2010. Specifically, on April 21, 2010, Appellant was placed in the Erie County jail on a detainer for technical violations of his probation at docket number CR 2396 of 1994. Following a Gagnon II hearing on June 15, 2010, Appellant was resentenced to incarceration for six to twenty-three and one-half months followed by four years of probation, with credit for fifty-nine days of time served. The trial court granted Appellant early parole, effective October 21, 2010.
The record is unclear as to whether Appellant received credit for the April-October 2010 period; neither the May 6, 2016 sentencing order nor the PCRA court's opinion includes credit for this period. Order, 5/6/16; PCRA Court Opinion, 9/25/17, at 13-14. Accordingly, we are compelled to vacate the judgment of sentence and remand for the trial court to recalculate the credit for time that Appellant has served on his conviction at Count IV. To that end, the trial court may conduct a hearing to obtain input from the Pennsylvania Board of Probation and Parole and Department of Corrections.
We note the PCRA court's reference to a credit sheet that refers to the challenged period. PCRA Court Opinion, 9/25/17, at Exhibit 1.
Lastly, Appellant simultaneously raises challenges to the validity of his guilty plea, counsel's representation, and the PCRA court's failure to conduct an evidentiary hearing. Appellant's Brief at 16-26. Upon review, we conclude that Appellant's myriad claims lack merit.
Appellant challenges the validity of his guilty plea in terms of counsel's ineffectiveness. Appellant's Brief at 17. According to Appellant, trial counsel "advised [Appellant] that his license had been suspended for [H]abitual [O]ffender for multiple violations of 75 Pa.C.S. 1543(a)," which was not true. Id. at 18 (emphasis omitted). Appellant asserts that, based on counsel's misrepresentation, his guilty plea was unknowing, involuntary, and unintelligent. Id. at 20. Additionally, Appellant argues that trial counsel failed to file pretrial and post-sentence motions, seeking discovery and withdrawal of the guilty plea, respectively. Id. at 21-22.
To be eligible for PCRA relief regarding the validity of a guilty plea, a defendant must plead and prove by a preponderance of the evidence that his guilty plea was unlawfully induced where the circumstances make it likely an alleged inducement caused him to plead guilty. 42 Pa.C.S. § 9543(a)(2)(iii). Further, we are mindful of the following:
Our law presumes that a defendant who enters a guilty plea was aware of what he was doing. He bears the burden of proving otherwise.Commonwealth v. Yeomans , 24 A.3d 1044, 1047 (Pa. Super. 2011) (citing Commonwealth v. Pollard , 832 A.2d 517 (Pa. Super. 2003)).
* * *
The longstanding rule of Pennsylvania law is that a defendant may not challenge his guilty plea by asserting that he lied while under oath, even if he avers that counsel induced the lies. A person who elects to plead guilty is bound by the statements he makes in open court while under oath and may not later assert grounds for withdrawing the plea which contradict the statements he made at his plea colloquy.
* * *
A defendant who elects to plead guilty has a duty to answer questions truthfully. We cannot permit a defendant to postpone the final disposition of his case by lying to the court and later alleging that his lies were induced by the prompting of counsel.
Alternatively, a defendant may challenge the validity of his guilty plea by proving ineffective assistance of counsel, which caused an involuntary or unknowing plea:
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.Commonwealth v. Pier , 182 A.2d 476, 478-479 (Pa. Super. 2018) (quoting Commonwealth v. Moser , 921 A.2d 526, 531 (Pa. Super. 2007) (internal quotations and citations omitted)).
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. 1999). Moreover, trial counsel cannot be deemed ineffective for failing to pursue a meritless claim. Commonwealth v. Loner , 836 A.2d 125, 132 (Pa. Super. 2003) (en banc).
With regard to the second prong, we have reiterated that trial counsel's approach must be "so unreasonable that no competent lawyer would have chosen it." Commonwealth v. Ervin , 766 A.2d 859, 862-863 (Pa. Super. 2000) (quoting Commonwealth v. Miller , 431 A.2d 233 (Pa. 1981)). Our Supreme Court has discussed "reasonableness" as follows:
Our inquiry ceases and counsel's assistance is deemed constitutionally effective once we are able to conclude that the particular course chosen by counsel had some reasonable basis designed to effectuate his client's interests. The test is not whether other alternatives were more reasonable, employing a hindsight evaluation of the record. Although weigh the alternatives we must, the balance tips in favor of a finding of effective assistance as soon as it is determined that trial counsel's decision had any reasonable basis.Commonwealth v. Pierce , 527 A.2d 973, 975 (Pa. 1987) (quoting Commonwealth ex rel. Washington v. Maroney , 235 A.2d 349 (Pa. 1967)) (emphasis in original).
In addition, we are mindful that prejudice requires proof that there is a reasonable probability that, but for counsel's error, the outcome of the proceeding would have been different. Pierce , 786 A.2d at 213. "A failure to satisfy any prong of the ineffectiveness test requires rejection of the claim of ineffectiveness." Commonwealth v. Daniels , 963 A.2d 409, 419 (Pa. 2009) (citing Commonwealth v. Sneed , 899 A.2d 1067 (Pa. 2006)). Thus, when it is clear that a petitioner has failed to meet the prejudice prong of an ineffective-assistance-of-counsel claim, the claim may be disposed of on that basis alone, without a determination of whether the first two prongs have been met. Commonwealth v. Baker , 880 A.2d 654, 656 (Pa. Super. 2005).
Applying the rubric of eligibility for collateral relief set forth in 42 Pa.C.S. § 9543, the PCRA court disposed of Appellant's guilty-plea and plea-based ineffectiveness claims with the following analysis:
Appellant argues that he should not have been charged [at CR 471 of 2015] as [an] "Habitual Offender" and his guilty plea was unlawfully induced due to ineffective assistance of his then-counsel, Kenneth A. Bickel, Esq., who Appellant alleges failed to file pre-trial and post-sentence motions. After review of the relevant statutory and case law, this Trial Court concludes Appellant has not proven [that his sentence was unlawfully induced] successfully. After a defendant has entered a plea of guilty, the only cognizable issues in a post-conviction proceeding are the validity of the plea of guilty and the legality of the sentence. Commonwealth v. Rounsley, 717 A.2d 537, 538 (Pa. Super. 1998). In the instant PCRA petition, Appellant does not challenge the legality of his sentences imposed at docket nos. CR 2396 of 1994 and CR 471 of 2015. Furthermore, review of the Guideline Sentencing Forms and the Sentencing Hearing transcript demonstrates these sentences are within the standard range. See Notes of Testimony, Revocation and Sentencing, May 6th , 2016, page 11, line 21 - page 12, line 8; page 15, lines 10-11.
The Pennsylvania Rules of Criminal Procedure mandate a guilty plea be offered in open court, and the trial court should inquire into at least six (6) areas in order to show the guilty plea was voluntarily, knowingly, and intelligently entered, which include:
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 the 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 range 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?
See [Commonwealth v.] Rachak, 62 A.3d [389,] 394 [Pa. Super. 2012)]. This examination may be conducted by defense counsel or the attorney for the Commonwealth, as permitted by the judge. Moreover, the examination does not have to be solely oral. Nothing precludes the use of a written colloquy that is read, completed, and signed by the defendant, made part of the record, and supplemented by some on-the-record oral examination.
At the time of Appellant's guilty plea hearing on March 22nd, 2016 before Judge Garhart, Appellant was provided the opportunity to read and review his "Statement of Understanding of Rights Prior to Guilty/No Contest Plea" form and signed said Statement, along with his counsel, Kenneth A. Bickel, Esq.; the attorney for the Commonwealth and Judge Garhart, who accepted the guilty plea. By Appellant signing the "Statement of Understanding of Rights Prior to Guilty/No Contest Plea," Appellant thereby acknowledged his guilty plea was made voluntarily with full understanding of his rights, including, but not limited to: (1) the nature of the crimes charged; (2) the right to be represented by an attorney; (3) the presumption of innocence; (4) the right to a trial by jury; (5) the maximum sentence for the crimes charged; (6) the nature of the plea agreement; and (7) the trial judge not being bound by the plea agreement. Moreover, at the time of Appellant's guilty plea, Assistant District Attorney Jeremy C. Lightner verbally notified all litigants, including Appellant, of their rights prior to entering a guilty plea. See Notes of Testimony, Plea, March 22nd , 2016, pages 3-5. Finally, as a review of the record clearly demonstrates[,] Appellant's guilty plea was entered into knowingly, voluntarily, and intelligently when Judge Garhart accepted Appellant's guilty plea as to Counts One, Two and Three, with Count Four [Driving While Operating Privilege is Suspended or Revoked] being nolle prossed, by the Commonwealth. See id, page 10.
Furthermore, the written Criminal Information and the written "Statement of Understanding of Rights Prior to Guilty/No Contest Plea," both of which Appellant signed on March 22nd, 2016, contained language that Appellant is entering his guilty plea voluntarily. Appellant acknowledged these rights after having an opportunity to review both the written Criminal Information and the written "Statement of Understanding of Rights Prior to Guilty/No Contest Plea," coupled with his being orally notified of these rights on the record, clearly demonstrates his guilty plea was entered into voluntarily, knowingly and intelligently.
Therefore, this Trial Court concludes Appellant's guilty plea was knowingly, voluntarily and intelligently entered into and, therefore, is valid.PCRA Court Opinion, 9/25/17, at 7-11 (emphasis in original; some citations and a footnote omitted).
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Appellant alleges Attorney Bickel was ineffective by failing to file Pre-Sentence Motions for Discovery and failed to file Post-Sentence Motions following imposition of sentence. However, Appellant has not proven successfully the first prong for finding ineffective assistance of counsel, i.e. whether [the] underlying contention possess arguable merit. Appellant's guilty plea entered on the record via "Statements of Understanding of Rights Prior to Guilty/No Contest Plea" on March 22nd, 2016 was made voluntarily, knowingly and intelligently on the record and, therefore is valid. A plea of guilty amounts to a waiver of all defects and defenses, except those issues concerning the jurisdiction of the court, the legality of the sentence and the validity of the guilty plea. Commonwealth v. Reichle, 589 A.2d 1140, 1141 (Pa. Super. 1991). By entering a guilty plea, Appellant effectively waived any issues and defenses available to him; therefore, no issues of arguable merit remain. Furthermore, as stated above, the sentences imposed by this Trial Court are within the standard range, which is considered the "norm" by Pennsylvania appellate courts, and, therefore, are legal. As Appellant has failed to prove successfully his underlying claim is of arguable merit, Appellant has failed to satisfy the test for a finding of ineffective assistance of counsel and cannot challenge the validity of his guilty plea on such a claim.
Upon review of the certified record, especially the notes of testimony from Appellant's CR 471 of 2015 guilty-plea hearing and the May 6, 2016 revocation/sentencing hearing, we conclude that the evidence supports the conclusions of the PCRA court and that its ruling is free of legal error. Robinson , 139 A.3d at 185. At the guilty-plea hearing, the Commonwealth put on the record Appellant's rights, the elements of the plea agreement, the possible maximum and mandatory minimum sentences, and the factual basis for count I (Driving Under the Influence-Highest rate), count II (Habitual Offender), and count III (Accident Involving Damage to Attended Vehicle or Property); the Commonwealth nol prossed count IV (Operating Privilege Suspended or Revoked). N.T., 3/22/16, at 3-10. Appellant orally pled guilty to driving under the influence of alcohol; being an habitual offender and driving with a suspended, revoked or cancelled license; and causing damage to another vehicle. Id. at 7, 8-10. Additionally, Appellant signed a written guilty-plea form, acknowledging that his plea was voluntary, knowing, and intelligent. Statements of Understanding of Rights Prior to Guilty/No Contest Plea, 3/22/16. Moreover, other than making bald assertions related to Appellant's misunderstanding of the offense of Habitual Offender, Appellant neither pleads nor proves that his guilty plea was unlawfully induced. 42 Pa.C.S. § 9543(a)(2)(iii). Even Appellant's claim that counsel induced him to plead guilty by misrepresenting the offense of Habitual Offender falls short of proof. Because Appellant's underlying guilty-plea challenge lacks arguable merit, counsel's representation cannot be deemed ineffective. Loner , 836 A.2d at 132. Consequently, Appellant is not entitled to relief on his guilty plea and plea-based ineffectiveness claims.
We reiterate that there is no absolute right to an evidentiary hearing. Commonwealth v. Springer , 961 A.2d 1262, 1264 (Pa. Super. 2008). "[T]he PCRA court has discretion to dismiss a petition without a hearing when the court is satisfied 'there are no genuine issues concerning any material fact, the defendant is not entitled to post-conviction collateral relief, and no legitimate purpose would be served by further proceedings.'" Commonwealth v. Cousar , 154 A.3d 287, 297 (Pa. 2017) (citing Commonwealth v. Roney , 79 A.3d 595, 604 (Pa. 2013)). "[S]uch a decision is within the discretion of the PCRA court and will not be overturned absent an abuse of discretion." Commonwealth v. Mason , 130 A.3d 601, 617 (Pa. 2015). On appeal, we examine the issues raised in light of the record "to determine whether the PCRA court erred in concluding that there were no genuine issues of material fact and denying relief without an evidentiary hearing." Springer , 961 A.2d at 1264.
There being no merit to Appellant's claims, no genuine issues of material fact existed. Accordingly, we conclude that the PCRA court did not abuse its discretion in denying relief without an evidentiary hearing. Mason , 130 A.3d at 617. Appellant's contrary claim fails.
PCRA Order vacated. Judgment of sentence vacated. Case remanded for further proceedings consistent with this memorandum. Jurisdiction relinquished.
Judge Musmanno joins the Memorandum.
P.J. Gantman concurs in the result. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 10/10/2018