Com. v. Baker, J. ( 2018 )

J-S46044-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JOHNNY BAKER :
:
Appellant : No. 3910 EDA 2017
Appeal from the PCRA Order, November 27, 2017,
in the Court of Common Pleas of Philadelphia County,
Criminal Division at No(s): CP-51-CR-0008814-2015.
BEFORE: BOWES, J., SHOGAN, J., and KUNSELMAN, J.
MEMORANDUM BY KUNSELMAN, J.: FILED NOVEMBER 13, 2018
Johnny Baker appeals from the order denying his first timely petition for
relief filed pursuant to the Post Conviction Relief Act. 42 Pa.C.S.A. §§ 9541-
46. We affirm.
Baker’s convictions arise from drug crimes that he perpetrated on
August 14, 2015, in Philadelphia County, Pennsylvania. The PCRA court
summarized the pertinent procedural history as follows:
On April 21, 2016, [Baker] entered into a non-negotiated
guilty plea for the charges of possession with intent to
deliver a controlled substance (“PWID”), conspiracy to
commit possession with intent to deliver a controlled
substance, and the knowing and intentional possession of a
controlled substance. On June 30, 2016, the Honorable Kai
Scott (herein PCRA court) imposed a sentence of two to four
years of incarceration followed by three years of probation
on the possession with intent to deliver charge, and the
same sentence for the conspiracy charge to run concurrent
with the PWID sentence. [Baker] did not pursue a direct
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appeal. On October 11, 2016, [Baker] timely filed his first
PCRA petition wherein he claimed that his trial counsel was
ineffective for failing to provide adequate legal advice
regarding the consequences of a guilty plea. [Baker] alleges
this error induced him to plead guilty to these charges.
PCRA counsel filed an amended PCRA petition on
February 27, 2017. On September 13, 2017, the
Commonwealth filed a letter brief and motion to dismiss the
amended PCRA petition. After receiving the
Commonwealth’s motion to dismiss, PCRA counsel filed a
response clarifying [Baker’s] claim of ineffective assistance
on September 21, 2017. The clarification stated that
[Baker] was not informed of the proper sentencing
guidelines and mistakenly believed the sentence would be
county sentence of eleven and a half to twenty three
months. The first hearing on the PCRA matter and the
related filings was held on November 27, 2017.
This court, after carefully reviewing the record, [Baker’s]
filings, PCRA counsel’s amended petition, the
Commonwealth’s letter in brief and motion to dismiss, and
PCRA counsel’s response, determined the issues raised by
PCRA counsel lacked merit and dismissed [Baker’s] PCRA
petition without an evidentiary hearing. The PCRA court
sent [Baker] a Pa.R.Crim.P. 907 notice of dismissal on
October 25, 2017. On November 27, 2017 this court issued
an order denying [Baker’s] post-conviction relief.
PCRA Court Opinion, 3/2/18, at 1-2 (footnote omitted)(unnecessary
capitalization omitted).
This timely appeal follows. Both Baker and the PCRA court have
complied with Pa.R.A.P. 1925.
Baker raises the following issue on appeal:
I. Did the [PCRA] court err in denying [Baker] an
evidentiary hearing when [Baker] raised a material
issue of fact that trial defense counsel was ineffective
in failing to properly inform [Baker] of the sentence
guidelines prior to [Baker’s] guilty plea being entered?
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Baker’s Brief at 2.
The Superior Court’s standard of review of the denial of a PCRA petition
is limited to examining whether the court’s rulings are supported by the
evidence of record and free of legal error. Commonwealth v. Volk, 138 A.3d
659, 661 (Pa. Super. 2016).
Baker claims that plea counsel was ineffective for advising Baker to
enter a guilty plea. To obtain relief under the PCRA premised on a claim that
counsel was ineffective, a petitioner must establish, by a preponderance of
the evidence, that counsel's ineffectiveness so undermined the truth-
determining process that no reliable adjudication of guilt or innocence could
have taken place. Commonwealth v. Johnson, 966 A.2d 523, 532 (Pa.
2009). “Generally, counsel’s performance is presumed to be constitutionally
adequate, and counsel will only be deemed ineffective upon a sufficient
showing by the petitioner.” Id. This requires the petitioner to demonstrate
that: (1) the underlying claim is of arguable merit; (2) counsel had no
reasonable strategic basis for his or her action or inaction; and (3) petitioner
was prejudiced by counsel's act or omission. Id. at 533. A finding of
"prejudice" requires the petitioner to show "that there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different." Id.In regard to claims of ineffective assistance of counsel during the plea
process, this court has recently stated that:
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Ineffective assistance of counsel claims arising from the
plea bargaining-process are eligible for PCRA review.
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 into 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.
The standard for post-sentence withdrawal of guilty pleas
dovetails with the arguable merit/prejudice requirements
for relief based on a claim of ineffective assistance of plea
counsel, . . . under which the defendant must show that
counsel’s deficient stewardship resulted in a manifest
injustice, for example, by facilitating the entry of an
unknowing, involuntary, or unintelligent plea. This standard
is equivalent to the “manifest injustice” standard applicable
to all post-sentence motions to withdraw a guilty plea.
Commonwealth v. Kelley, 136 A.3d 1007, 1012-13 (Pa. Super. 2016)
(citations omitted).
In support of his claim, Baker alleges that plea counsel misinformed him
as to the proper sentencing guidelines. Allegedly, prior to Baker entering his
guilty plea, trial counsel informed Baker that a county sentence, rather than
a state sentence, applied to his case. As such, Baker argues that his plea was
not knowing, intelligent, or voluntary because he believed that he was
subjecting himself to eleven and a half to twenty three months’ incarceration
instead of the longer state sentence of 24-48 months.
Baker points out that during his sentencing hearing, counsel asked the
court for a county sentence. Baker reasons that “trial defense counsel [would
not] request a county sentence unless he told [Baker] that [the county
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sentence] is what the sentencing guidelines indicated. Baker’s Brief at 6. We
do not find this theory persuasive.
The trial court recounted the plea colloquy and sentencing hearing, as
follows:
In this case, [Baker] reviewed and signed a written guilty
plea agreement that expressly stated that he was pleading
guilty to PWID heroin (graded as an ungraded felony),
conspiracy to commit possession of a controlled substance
(graded as an ungraded felony), and the knowing and
intentional possession of a controlled substance (graded as
an ungraded felony) and acknowledged the maximum
sentence and fine that the court could impose on him.
During [Baker’s] guilty plea, [Baker] was specifically
asked by PCRA court, “has any promise been made to you
to make you give up your right to trial in this matter?”
[Baker] was also asked, “has anybody forced or threatened
you in any way to make you give up your right to trial?” to
which [Baker] responded to both, “no.” PCRA court further
questioned [Baker], “are you pleading guilty of your own
free will?” to which [Baker] responded, “yes.” Although the
sentencing guidelines were not discussed during [Baker’s]
guilty plea, they were provided during [Baker’s] sentencing.
During sentencing, the guideline range was specifically
stated as 24-30 months, plus or minus 6 months. [Baker’s]
counsel made no objection to these guidelines and, in fact,
agrees with the sentencing guidelines of 24-30 months.
After his agreement, he merely requests that the court
sentence [Baker] to a county sentence of 11 and a half to
23 months, with a consecutive period of probation time.
However, [Baker’s] counsel did not claim that this length of
time is the proper sentencing guideline. [Baker] noted that
he understood his sentence of two to four years of
incarceration and three years of probation at the time of
sentencing.
Trial Court Opinion, 3/2/18, at 4-6.
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Additionally, the court reasoned that prior to its decision to dismiss the
PCRA petition without a hearing, it carefully examined the record, including
“Baker’s filings, PCRA counsel’s amended petition, the Commonwealth’s letter
in brief and motion to dismiss, and PCRA counsel’s response.” Id. at 2. After
its examination of the record, the PCRA court found the issue Baker raised
lacked merit.
The Commonwealth argues that “[e]ven assuming counsel misinformed
[Baker] about his guideline range sentence does not render his counsel’s
assistance ineffective because [Baker] was fully aware of the statutory
maximum.” Commonwealth’s Brief at 8. In support of this assertion, the
Commonwealth cites Commonwealth v. Burkholder, 719 A.2d 346, (Pa.
Super. 1998), where this Court ruled the appellant’s ineffective assistance of
counsel claim warranted no relief. In Burkholder, appellant’s counsel
mistakenly advised him of the statutory maximum, conveying to Burkholder
that the sentence was shorter than it was in actuality. Id. at 349. However,
appellant’s plea remained knowing and voluntarily entered because the trial
court advised him of the correct statutory maximum during the plea colloquy.
Id.Here, as in Burkholder, the trial court informed Baker of the maximum
sentences he could receive for the different charges against him. Even if Baker
could demonstrate at an evidentiary hearing that his plea counsel misinformed
him regarding the sentencing range, his claim is without merit because the
trial judge advised him of the permissible maximum sentence for each offense
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during the plea colloquy, thus making his plea both knowing and voluntary.
Additionally, Baker signed the written guilty plea colloquy, further
demonstrating that he understood his maximum possible sentence, and
indicated on the form and during the colloquy that there was no plea bargain
or agreement of any kind. See Commonwealth v. Pollard, 832 A.2d 517,
523 (Pa. Super. 2003)(reiterating that “a person who elects to plead guilty is
bound by the statements he makes in open court while under oath and he
may not later assert grounds for withdrawing the plea which contradict the
statements he made at his plea colloquy.”)
Thus, even if Baker’s trial counsel provided ineffective stewardship, this
claim warrants no relief because Baker entered his guilty plea with full
knowledge of the maximum sentences the court could impose. We conclude
that any ineffectiveness of counsel did not result in manifest injustice here,
and the PCRA court did not err when it dismissed Baker’s PCRA petition without
granting an evidentiary hearing.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/13/18
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