Com. v. Drake, F. ( 2018 )


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  • J-S81009-17
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
    :        PENNSYLVANIA
    :
    v.                          :
    :
    :
    FREDERICK JAMES DRAKE                    :
    :
    Appellant             :   No. 1156 MDA 2017
    Appeal from the PCRA Order June 27, 2017
    In the Court of Common Pleas of York County
    Criminal Division at No(s): CP-67-CR-0007565-2014
    CP-67-CR-0007566-2014
    BEFORE:    PANELLA, J., STABILE, J., and PLATT*, J.
    JUDGMENT ORDER BY PANELLA, J.                          FILED MAY 01, 2018
    Appellant elected to plead guilty to two counts of robbery in two cases.
    In the written colloquy, he answered “yes” to the question of whether he and
    his attorney agreed with the prosecutor “concerning … the length of the
    sentence that will be imposed on these charges in return for pleading guilty?”
    In the space provided underneath, he wrote, among other things, “3 to 6
    years.” However, he crossed that out, as well as the other things he had
    written there. Underneath all he had crossed out, he wrote, “open plea.”
    The matter proceeded to a guilty plea hearing. At the hearing, the
    prosecutor stated, “the Defendant has elected to enter open pleas.” In his
    next sentence, the prosecutor again reiterated that “in both cases” Appellant
    “will enter an open plea….” During the oral colloquy, the court asked Appellant
    if “anyone has promised you anything in exchange for your plea of guilty?”
    ____________________________________
    * Retired Senior Judge assigned to the Superior Court.
    J-S81009-17
    And Appellant answered, “No, ma‘am.” Later in the hearing, the court
    repeated that Appellant “has elected to enter open pleas in each case.”
    Ultimately, Appellant pleaded nolo contendere in one case and guilty in the
    other. The court later imposed a sentence of incarceration.
    Appellant timely filed a pro se petition under the Post Conviction Relief
    Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546, and the PCRA court appointed
    counsel. Ultimately, the PCRA court permitted appointed counsel to withdraw
    and denied Appellant relief. This timely appeal follows.
    In this pro se collateral appeal, Appellant argues that plea counsel
    rendered ineffective assistance as he provided “false representation” as to the
    length of time the trial court would impose pursuant to the open plea.
    Appellant is not entitled to relief.
    This Court’s standard of review regarding an order dismissing a petition
    under the PCRA is whether the determination of the PCRA court is supported
    by the evidence of record and is free of legal error. See Commonwealth v.
    Halley, 
    870 A.2d 795
    , 799 n.2 (Pa. 2005).
    “Claims challenging the effectiveness of [plea] counsel’s stewardship
    during a guilty plea are cognizable under 42 Pa.C.S.A. § 9543(a)(2)(ii).”
    Commonwealth v. Lee, 
    820 A.2d 1285
    , 1287 (Pa. 2003) (citation omitted).
    We review allegations of counsel's ineffectiveness in connection with a guilty
    plea as follows:
    The standard for post-sentence withdrawal of guilty pleas
    dovetails with the arguable merit/prejudice requirements for relief
    -2-
    J-S81009-17
    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 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. Morrison, 
    878 A.2d 102
    , 105 (Pa. Super. 2005) (en
    banc) (citations omitted).
    A defendant challenging his plea counsel’s stewardship “is bound by the
    statements which he makes during his plea colloquy.” Commonwealth v.
    Barnes, 
    687 A.2d 1163
    , 1167 (Pa. Super. 1997) (citation omitted). As a
    result, “[a] defendant may not assert grounds for withdrawing the plea that
    contradict statements made when he pled guilty.” 
    Id. (citation omitted).
    Here, Appellant acknowledged in his written guilty plea colloquy that he
    would enter an open plea. An “open plea,” as the name suggests, is a plea
    agreement “in which there is no negotiated sentence.” Commonwealth v.
    Tirado, 
    870 A.2d 362
    , 363 n.1 (Pa. Super. 2005) (citation omitted). That he
    was entering an open plea was stated three times at the guilty plea hearing.
    And at that hearing, Appellant confirmed that no one “promised” him
    “anything in exchange for” his “plea of guilty[.]”
    Appellant is bound by his answers. His present assertions to the contrary
    are simply unsupported by the record. Thus, this claim lacks arguable merit
    and Appellant cannot succeed in proving counsel’s ineffectiveness. See, e.g.,
    Commonwealth v. Williams, 
    141 A.3d 440
    , 454 (Pa. 2016).
    -3-
    J-S81009-17
    We affirm the PCRA court’s order denying Appellant relief.1
    Order affirmed. Motion denied.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 05/01/2018
    ____________________________________________
    1 Appellant filed a motion for oral argument in this case. See Pa.R.A.P.
    2311(b) Post conviction relief cases. We deny the motion.
    -4-
    

Document Info

Docket Number: 1156 MDA 2017

Filed Date: 5/1/2018

Precedential Status: Precedential

Modified Date: 5/1/2018