Com. v. Edwards, R. ( 2018 )

J-S38039-18
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
:
ROBERT BENSON EDWARDS :
:
Appellant : No. 126 WDA 2018
Appeal from the PCRA Order December 11, 2017
in the Court of Common Pleas of Westmoreland County
Criminal Division at No(s): CP-65-CR-0001847-2016
BEFORE: BOWES, NICHOLS, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED AUGUST 27, 2018
Robert Benson Edwards (Appellant) appeals from the order entered
December 11, 2017, dismissing his petition filed under the Post Conviction
Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.
In 2016, Appellant robbed a jewelry store after threatening the owner
with intimations that he had a gun. He was charged with the following
crimes: (1) one count of first-degree felony robbery in violation of 18
Pa.C.S. § 3701(a)(1)(ii); (2) one count of third-degree felony theft in
violation of 18 Pa.C.S. § 3921(a); (3) two counts of third-degree felony
receiving stolen property in violation of 18 Pa.C.S. § 3925; and (4) one
count of second-degree misdemeanor simple assault in violation of 18
Pa.C.S. § 2701(a)(3). The maximum aggregate sentence a defendant can
receive for these crimes is 43 years.
* Retired Senior Judge assigned to the Superior Court.
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On August 2, 2016, Appellant and the Commonwealth entered into a
negotiated plea agreement. In exchange for Appellant’s guilty plea, the
Commonwealth agreed to nolle pros the simple assault and theft charges,
and to reduce the robbery charge to a second-degree felony. Appellant and
the Commonwealth agreed that Appellant would plead guilty to one count of
robbery pursuant to 18 Pa.C.S. § 3701(a)(1)(iv), for which Appellant would
receive a sentence of 4 to 20 years’ incarceration, and two counts of
receiving stolen property, for which Appellant would receive a sentence at
each count of 2 to 7 years’ incarceration to be served concurrently with the
sentence for robbery. Appellant pled guilty, and the trial court sentenced
Appellant in accordance with the plea agreement. Appellant did not file a
post-sentence motion or direct appeal.
By order entered August 15, 2016, which was within the timeframe
permitted by 42 Pa.C.S. § 5505 (regarding modification of orders within 30
days after its entry and prior to the filing of an appeal), the trial court
amended its sentencing order and reduced Appellant’s maximum sentence
for the robbery count from 20 to 10 years. The trial court explained in the
order that the amendment was “necessary because [the robbery count] is a
felony of the second degree, carrying a maximum legal sentence of [ten]
years.” Trial Court Order, 8/15/2016, at 1.
On June 28, 2017, Appellant timely filed a pro se PCRA petition, his
first, alleging, inter alia, that his negotiated sentence was illegal; his plea
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counsel rendered ineffective assistance of counsel by negotiating a plea with
an illegal sentence; and the trial court erred by modifying his sentence
without notice to Appellant or without Appellant being present.1 Statement
of Facts attached to PCRA Petition, 6/28/2017, at 1-2. Appellant averred
that the reduction in the sentence was the result of collusion between the
trial court, the Commonwealth’s attorney, and his plea counsel, and claims
he did not know about the modification until February 2017. Id. at 2.
Appellant requested that the PCRA court vacate his plea and sentence.
PCRA Petition, 6/28/2017, at 5.
The PCRA court appointed counsel to represent Appellant. Counsel
filed a petition to withdraw accompanied by a no-merit letter pursuant to
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
Appellant filed a response objecting to counsel’s petition to withdraw, which
he later supplemented with permission of the PCRA court. Appellant also
filed pro se a petition to amend his PCRA petition along with an amended
1 The August 15, 2016 sentencing order states that the court entered the
order modifying Appellant’s sentence “upon motion of the Commonwealth
and with the consent of the attorney for the defendant.” Id. No written
motion from the Commonwealth appears of record. It is possible the
Commonwealth made an oral motion, but the PCRA court referred to the
order as being entered sua sponte, further confusing matters. Amended
Rule 907 Notice, 11/13/2017, at 3-6.
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PCRA petition.2 In the amended PCRA petition, Appellant, inter alia, averred
that the plea colloquy was defective because it did not inform him of the
maximum sentence he was facing, causing him to enter an unknowing plea.
Amended PCRA Petition, 10/6/2017, at 1-2. He also averred that his plea
counsel did not inform him of the maximum sentence for a second-degree
felony, and this failure, in addition to plea counsel’s failure to object to the
plea colloquy, constituted ineffective assistance of counsel. Id.
The PCRA court issued an initial and then amended notice of intent to
dismiss the petition pursuant to Pa.R.Crim.P. 907, concluding that (1) the
plea colloquy satisfied the requirements of Pa.R.Crim.P. 590; (2) Appellant
was sentenced to an illegal sentence in excess of the statutory maximum,
but the trial court properly corrected the sentence within the timelines set
forth in 42 Pa.C.S. § 5505; (3) plea counsel was ineffective for allowing
Appellant to plead guilty to an illegal sentence, but Appellant is not entitled
to relief because his sentence ultimately was reduced; therefore, he has not
suffered any prejudice by counsel’s ineffective representation; and (4)
despite plea counsel’s ineffectiveness, Appellant entered a knowing and
2 Amendments to pending PCRA petitions are to be “freely allowed to
achieve substantial justice,” but must be made at the direction or by leave of
the PCRA court. Pa.R.Crim.P. 905(A); Commonwealth v. Porter, 35 A.3d
4, 12 (Pa. 2012). Here, the PCRA court never expressly provided leave to
amend the petition. Nevertheless, the PCRA court implicitly permitted
Appellant to amend his petition by addressing the new claims in its ruling.
See Commonwealth v. Brown, 141 A.3d 491, 503-04 (Pa. Super. 2016);
Amended 907 Notice, 11/13/2017, at 2.
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voluntary plea because the plea colloquy and guilty plea petition were
satisfactory. Amended Rule 907 Notice, 11/13/2017, at 3-6.
Appellant did not file a response to the Rule 907 notice, and on
December 11, 2017, the PCRA court dismissed Appellant’s petition without
an evidentiary hearing and granted counsel’s petition to withdraw. Appellant
timely filed a notice of appeal. The PCRA court did not order Appellant to file
a statement pursuant to Pa.R.A.P. 1925, and Appellant did not file one. In
lieu of filing an opinion pursuant to Pa.R.A.P. 1925(a), the PCRA court
directed us to its November 13, 2017 opinion accompanying its Rule 907
notice.
On appeal, Appellant raises four issues:
(1) Was [plea] counsel ineffective in negotiating a plea bargain
to an [illegal] sentence?
(2) [Was] the plea colloquy defective and [did it] fail to meet
the standards of law?
(3) Did [the] trial court [err] in arbitrarily altering Appellant[’]s
sentence?
(4) Did [the] trial court abuse its discretion in failing to vacate
Appellant[’]s guilty plea?
Appellant’s Brief at 3 (capitalization altered; trial court’s answers omitted;
reordered for ease of disposition).
“On review of orders denying PCRA relief, our standard is to determine
whether the PCRA court’s ruling is free of legal error and supported by the
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record.” Commonwealth v. Boyer, 962 A.2d 1213, 1215 (Pa. Super.
2008).
Appellant makes the following arguments on appeal: (1) that his plea
counsel gave him erroneous advice to enter into a plea agreement to avoid a
maximum sentence that the trial court never had the authority to impose;
(2) the plea colloquy at his plea hearing was deficient because it did not
inform him of the minimum and maximum sentences he faced; (3) the trial
court improperly modified his sentence outside of Appellant’s presence and
without the notice to Appellant required by 42 Pa.C.S. § 5505;3 and (4) upon
learning that the parties mutually agreed to an illegal sentence, the trial
court should have vacated Appellant’s plea and sentence instead of
modifying the sentence. Appellant’s Brief at 9-14. He also alleges derivative
claims that his plea counsel was ineffective for not addressing the trial
courts’ errors alleged in issues two through four, and his PCRA counsel was
ineffective by seeking to withdraw under Turner/Finley instead of litigating
the claims he raises on appeal. Id.
3 Section 5505 provides: “[e]xcept as otherwise provided or prescribed by
law, a court upon notice to the parties may modify or rescind any order
within 30 days after its entry, notwithstanding the prior termination of any
term of court, if no appeal from such order has been taken or allowed.” 42
Pa.C.S. § 5505.
In his third issue, Appellant simply argues he was entitled to notice for the
sake of receiving notice; he does not specify what the trial court should have
done in lieu of reducing his sentence. Presumably, he wishes to vacate his
plea, as he argues in his fourth issue.
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With respect to his arguments regarding the trial court’s alleged errors
in issues two through four, generally, claims of trial court error, other than
those enumerated in 42 Pa.C.S. § 9543(a)(2)(i-viii),4 are not cognizable
under the PCRA. Furthermore, Appellant could have raised these issues on
4 Subsection 9543(a)(2) provides that to be eligible for relief, the
petitioner must plead and prove that the conviction or sentence
resulted from one or more of the following:
(i) A violation of the Constitution of this Commonwealth or the
Constitution or laws of the United States which, in the
circumstances of the particular case, so undermined the truth-
determining process that no reliable adjudication of guilt or
innocence could have taken place.
(ii) Ineffective assistance of counsel which, in the circumstances
of the particular case, so undermined the truth-determining
process that no reliable adjudication of guilt or innocence could
have taken place.
(iii) A plea of guilty unlawfully induced where the circumstances
make it likely that the inducement caused the petitioner to plead
guilty and the petitioner is innocent.
(iv) The improper obstruction by government officials of the
petitioner’s right of appeal where a meritorious appealable issue
existed and was properly preserved in the trial court.
(v) Deleted.
(vi) The unavailability at the time of trial of exculpatory evidence
that has subsequently become available and would have
changed the outcome of the trial if it had been introduced.
(vii) The imposition of a sentence greater than the lawful
maximum.
(viii) A proceeding in a tribunal without jurisdiction.
42 Pa.C.S. § 9543(a)(2)(i)-(viii).
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direct appeal, but he failed to do so. See 42 Pa.C.S. § 9544(b) (“For
purposes of this subchapter, an issue is waived if the petitioner could have
raised it but failed to do so before trial, at trial, during unitary review, on
appeal or in a prior state postconviction proceeding.”); 42 Pa.C.S. §
9543(a)(3) (“To be eligible for relief under this subchapter, the petitioner
must plead and prove … [t]hat the allegation of error has not been
previously litigated or waived.”). Thus, Appellant’s claims of trial court error
are both not cognizable and waived. See Commonwealth v. Spotz, 18
A.3d 244, 270 (Pa. 2011).
We now turn to Appellant’s claims that his plea counsel was ineffective
for giving him flawed advice in the plea process, and his related claims that
plea counsel was ineffective for not addressing the trial court errors alleged
in issues two through four.5
“Allegations that counsel misadvised a criminal defendant in the plea
process are properly determined under the ineffectiveness of counsel
subsection of the PCRA [(42 Pa.C.S. § 9543(a)(2)(ii)),] not the [sub]section
5
Appellant has failed to develop as separate issues his claims regarding the
ineffectiveness of his PCRA counsel in not pursuing issues one through four
and the ineffectiveness of his plea counsel in not addressing the trial court
errors alleged in issues two through four. He also has failed to set forth a
fully developed analysis of these claims in his brief. We could find such
claims to be waived. See Pa.R.A.P. 2116(a); 2119(a). Notwithstanding
Appellant’s failure to comply with our rules of appellate procedure, we will
address such claims on the merits, as his noncompliance does not
substantially impede our appellate review.
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specifically governing guilty pleas [(42 Pa.C.S. § 9543(a)(2)(iii))].”
Commonwealth v. Lynch, 820 A.2d 728, 730 n.2 (Pa. Super. 2003).
It is well-established that counsel is presumed to have
provided effective representation unless the PCRA
petitioner pleads and proves all of the following: (1) the
underlying legal claim is of arguable merit; (2) counsel’s
action or inaction lacked any objectively reasonable basis
designed to effectuate his client’s interest; and (3)
prejudice, to the effect that there was a reasonable
probability of a different outcome if not for counsel’s error.
The PCRA court may deny an ineffectiveness claim if the
petitioner’s evidence fails to meet a single one of these prongs.
Moreover, a PCRA petitioner bears the burden of demonstrating
counsel’s ineffectiveness.
Commonwealth v. Franklin, 990 A.2d 795, 797 (Pa. Super. 2010)
(internal citations omitted).
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.
Thus, to establish prejudice, the defendant must show
that there is a reasonable probability that, but for
counsel’s errors, he would not have [pled] guilty and
would have insisted on going to trial. The reasonable
probability test is not a stringent one; it merely refers to a
probability sufficient to undermine confidence in the outcome.
Commonwealth v. Barndt, 74 A.3d 185, 192-93 (Pa. Super. 2013)
(citations and quotation marks omitted; emphasis added).
There is no question that plea counsel’s advice to enter into a plea
with an agreed-upon sentence that exceeded the statutory maximum “fell
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below the range of competence demanded of attorneys in criminal cases.”
Commonwealth v. Kelley, 136 A.3d 1007, 1014 (Pa. Super. 2016).
However, Appellant bore the burden of pleading and proving all three prongs
of the test for ineffectiveness. Thus, Appellant was required to plead and
prove prejudice by alleging that it was reasonably probable that, but for
counsel’s errors, he would not have pled guilty and would have gone to trial.
Because Appellant did not assert prejudice in the first instance before the
PCRA court, the claims he raises on appeal regarding the ineffective
assistance of his plea counsel during the plea process fail as a matter of law.
Further, even if he had properly pled his claims, Appellant would not
be able to prove that he was prejudiced by plea counsel’s actions. All of
Appellant’s issues stem from the same faulty premise: that notwithstanding
his eventual sentence reduction, his counsel rendered “unsound advice to
plead guilty under the threat of a sentence that the [t]rial [c]ourt had no
authority to impose[, which] influenced [Appellant] into making a grave and
erroneous decision to plead guilty.” Appellant’s Brief at 9. In other words, it
appears that Appellant is arguing that had he known that he was facing only
ten years versus twenty for the robbery charge, he would have negotiated
the plea agreement differently or taken his chances at trial. See id.
However, Appellant’s contention that he pled guilty to avoid a twenty-
year sentence that the trial court did not have authority to impose simply is
incorrect. The Commonwealth initially charged Appellant with first-degree
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felony robbery, which carried a twenty-year maximum sentence. See 18
Pa.C.S. § 3701(b) (specifying that a violation of subsection 3701(a)(1)(ii) is
a felony of the first degree); 18 Pa.C.S. § 1103(1) (providing for a 20 year
maximum sentence for first-degree felonies). Appellant’s 4 to 20 year
sentence was illegal only because the crime to which he actually pled guilty
was downgraded to a second-degree felony. See 18 Pa.C.S. § 3701(b)
(specifying that a violation of subsection 3701(a)(1)(iv) is a felony of the
second degree); 18 Pa.C.S. § 1103(2) (providing for a 10 year maximum for
second-degree felonies).
Thus, when plea counsel advised Appellant of his potential 20-year
exposure on the robbery charge prior to the plea, Appellant was in fact
facing a possible 20-year sentence on that charge. Accordingly, Appellant
was faced with a decision between going to trial on all five charges and the
potential of a maximum aggregate sentence of 43 years versus taking a plea
on two charges, including the reduced grading of the robbery count, and
receiving an aggregate maximum sentence of twenty years. Had plea
counsel recognized that the plea agreement included an illegal sentence,
Appellant still would have been facing the potential of 43 years. Appellant
ultimately received a sentence that was lower than the one he negotiated
when the trial court corrected its mistake. Thus, Appellant’s issues
regarding plea counsel’s representation of him in connection with his plea fail
due to lack of prejudice.
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Furthermore, there is no merit to Appellant’s assertion that the trial
court should have vacated his plea. Unlike the cases cited by Appellant,
there is no basis to withdraw Appellant’s guilty plea because the plea
negotiations were not tainted by misinformation about a maximum sentence.
See, e.g., Commonwealth v. Lenhoff, 796 A.2d 338 (Pa. Super. 2002)
(holding that when considering a motion to withdraw a plea, the court
should examine whether the defendant pled guilty to avoid a maximum
sentence which, by law, could not have been imposed). Thus, plea counsel
was not ineffective for failing to raise this meritless claim. Commonwealth
v. Spotz, 896 A.2d 1191, 1210 (Pa. 2006) (“Counsel will not be deemed
ineffective for failing to raise a meritless claim.”).
Because all of Appellant’s claims fail, it follows that PCRA counsel was
not ineffective for withdrawing pursuant to Turner/Finley instead of
pursuing these meritless claims.
Based on the foregoing, the PCRA court did not err by dismissing
Appellant’s PCRA petition. Therefore, we affirm the order of the PCRA court.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/27/2018
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