Com. v. Page, C. ( 2015 )

J-S26044-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
CHAZ PAGE
Appellant No. 1443 MDA 2014
Appeal from the PCRA Order July 14, 2014
In the Court of Common Pleas of Dauphin County
Criminal Division at No(s): CP-22-CR-0001047-2012
CP-22-CR-0001623-2012
BEFORE: OTT, J., WECHT, J., and JENKINS, J.
MEMORANDUM BY JENKINS, J.: FILED APRIL 24, 2015
Chaz Page appeals from an order dismissing his petition for relief
under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. § 9541 et seq. We
affirm.
The charges against Page stem from two incidents. In 1623 CR 2012,
on January 29, 2012, Page shot Rikita Easter several times with a handgun,
requiring her to be hospitalized. Page was 17 years old at the time of the
incident and had a prior criminal history which prohibited him from legally
possessing firearms. In 1047 CR 2012, on July 26, 2011, officers searched
Page’s mother’s house and discovered several guns and drug paraphernalia.
Page was under 18 at the time and had a prior criminal history which
prohibited him from possessing firearms.
J-S26044-15
On June 18, 2013, Page pled guilty at 1263 CR 2012 to attempted
homicide, persons not to possess firearms and possession of a firearm by a
minor.1 At 1047 CR 2012, he pled guilty to persons not to possess firearms,
possession of a firearm with altered manufacturer’s number, possession of a
firearm by a minor, and unlawful possession of drug paraphernalia. 2 On
August 26, 2013, the court sentenced Page to an aggregate term of 10-20
years’ imprisonment at 1263 CR 2012 and a concurrent term of 2-4 years’
imprisonment at 1047 CR 2012.
Page did not file a direct appeal, opting instead to file a timely PCRA
petition on April 23, 2014. The court appointed PCRA counsel, who filed a
motion to withdraw pursuant to Commonwealth v. Turner, 544 A.2d 927
(Pa.1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa.Super.1988).
On June 16, 2014, the court granted counsel’s petition and issued a
Pa.R.Crim.P. 907 notice of intent to dismiss the PCRA petition without a
hearing. On July 3, 2014, Page filed a pro se response to the Rule 907
notice. On July 14, 2014, the court dismissed Page’s PCRA petition without
a hearing. On August 8, 2014, Page filed a timely notice of appeal. Both
Page and the PCRA court complied with Pa.R.A.P. 1925.
Page raises two issues in this appeal:
____________________________________________
1
18 Pa.C.S. §§ 901, 6105, and 6110.1, respectively.
2
18 Pa.C.S. §§ 6105, 6110.2, 6110.1, and 35 P.S. § 780-113(a)(32),
respectively.
-2-
J-S26044-15
Counsel was very ineffective for not filing motions
that were relevant to [Page]’s case, a motion to
dismiss the information and motion for bail
reduction, under Rule 576(A)(4).
[Page] was coerced by counsel into pleading open,
under the belief that he was receiving a 5 to 10 year
sentence, which is what counsel led him to believe,
[because] counsel did not have a defense strategy
for trial. The ineffectiveness of counsel led [Page] to
get more time than counsel led him to believe.
Brief for Appellant, p. 2.
Our standard and scope of review are well-settled:
We review an order dismissing a petition under the
PCRA in the light most favorable to the prevailing
party at the PCRA level. This review is limited to the
findings of the PCRA court and the evidence of
record. We will not disturb a PCRA court’s ruling if it
is supported by evidence of record and is free of
legal error. This Court may affirm a PCRA court’s
decision on any grounds if the record supports it. We
grant great deference to the factual findings of the
PCRA court and will not disturb those findings unless
they have no support in the record. However, we
afford no such deference to its legal conclusions.
Further, where the petitioner raises questions of law,
our standard of review is de novo and our scope of
review is plenary.
***
The Turner/Finley decisions provide the manner for
postconviction counsel to withdraw from
representation. The holdings of those cases mandate
an independent review of the record by competent
counsel before a PCRA court or appellate court can
authorize an attorney’s withdrawal. The necessary
independent review requires counsel to file a “no-
merit” letter detailing the nature and extent of his
review and list each issue the petitioner wishes to
have examined, explaining why those issues are
meritless. The PCRA court, or an appellate court if
-3-
J-S26044-15
the no-merit letter is filed before it, see Turner,
supra, then must conduct its own independent
evaluation of the record and agree with counsel that
the petition is without merit....
[T]his Court [has] imposed additional requirements
on counsel that closely track the procedure for
withdrawing on direct appeal.... [C]ounsel is required
to contemporaneously serve upon his [or her] client
his [or her] no-merit letter and application to
withdraw along with a statement that if the court
granted counsel’s withdrawal request, the client may
proceed pro se or with a privately retained
attorney....
Commonwealth v. Rykard, 55 A.3d 1177, 1183–84 (Pa.Super.2012)
(some citations and footnote omitted).
Our review of the record confirms that PCRA counsel substantially
complied with the Turner/Finley procedural requirements to withdraw.
Specifically, counsel filed a detailed 10-page motion explaining why she
believed Page’s claims lacked merit. She sent this motion to Page along
with a letter informing him of his right to retain private counsel, proceed pro
se or elect not to proceed further. Accordingly, we will proceed with our
independent review of the questions presented to determine if counsel
correctly concluded that the issues raised had no merit.
When a petitioner alleges ineffective assistance of counsel,
he must prove by a preponderance of the evidence
that his conviction or sentence resulted from
ineffective assistance of counsel which, in the
circumstances of the particular case, so undermined
the truth-determining process that no reliable
-4-
J-S26044-15
adjudication of guilt or innocence could have taken
place. We have interpreted this provision in the PCRA
to mean that the petitioner must show: (1) that his
claim of counsel’s ineffectiveness has merit; (2) that
counsel had no reasonable strategic basis for his
action or inaction; and (3) that the error of counsel
prejudiced the petitioner - i.e., that there is a
reasonable probability that, but for the error of
counsel, the outcome of the proceeding would have
been different. We presume that counsel is effective,
and it is the burden of Appellant to show otherwise.
Commonwealth v. DuPont, 860 A.2d 525, 531 (Pa.Super.2004), appeal
denied, 889 A.2d 87 (Pa.2005), cert. denied, 547 U.S. 1129, 126 S.Ct 2029,
164 L. Ed. 2d 782 (2006) (internal citations and quotations omitted). The
petitioner bears the burden of proving all three prongs of this test.
Commonwealth v. Meadows, 787 A.2d 312, 319-320 (Pa.2001). “If an
appellant fails to prove by a preponderance of the evidence any of the[se]
prongs, the Court need not address the remaining prongs of the test.”
Commonwealth v. Fitzgerald, 979 A.2d 908, 911 (Pa.Super.2009), appeal
denied, 990 A.2d 727 (2010) (citation omitted).
In his first argument, Page contends that counsel was ineffective for
failing to file pretrial motions to dismiss the information and to reduce bail.
Page has waived this claim for several reasons. First, he failed to raise this
argument in his Pa.R.A.P. 1925(b) statement. Commonwealth v.
Matteson, 82 A.3d 386, 393 (Pa.2014) (capital murder defendant waived
on direct appeal challenges to sufficiency of evidence to support his burglary
and robbery convictions, where he failed to include these challenges in his
-5-
J-S26044-15
statement of matters complained of on appeal). Second, Page failed to
develop any argument on this point in his appellate brief. Commonwealth
v. Plante, 914 A.2d 916, 924 (Pa.Super.2006) (“we have repeatedly held
that failure to develop an argument with citation to, and analysis of, relevant
authority waives the issue on review”). Third, as the PCRA court correctly
observed, Page’s guilty plea operates as a waiver of all possible pretrial
defenses, such as a challenge to bail or the content of his criminal
information. Commonwealth v. Eisenberg, 98 A.3d 1268, 1275
(Pa.2014) (“upon entry of a guilty plea, a defendant waives all claims and
defenses other than those sounding in the jurisdiction of the court, the
validity of the plea, and what has been termed the ‘legality’ of the sentence
imposed”).
In his second issue on appeal, Page claims that that trial counsel’s
ineffectiveness caused him to enter an involuntary guilty 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.” Commonwealth v. Hickman, 799 A.2d
136, 141 (Pa.Super.2002) (citing Commonwealth v. Allen, 557 Pa. 135,
732 A.2d 582 (1999)). Whether a plea is voluntary “depends on whether
counsel’s advice was within the range of competence demanded of attorneys
in criminal cases.” Commonwealth v. Lynch, 820 A.2d 728, 733
(Pa.Super.2003), appeal denied, 835 A.2d 709 (Pa.2003) (quoting
-6-
J-S26044-15
Hickman, 799 A.2d at 141). “[T]he law does not require that [the
defendant] be pleased with the outcome of his decision to enter a plea of
guilty: All that is required is that [his] decision to plead guilty be knowingly,
voluntarily, and intelligently made.” Commonwealth v. Willis, 68 A.3d
997, 1001 (Pa.Super.2013) (quoting Commonwealth v. Anderson, 995
A.2d 1184, 1192 (Pa.Super.2010) (alterations in original)). A guilty plea
colloquy must “affirmatively demonstrate the defendant understood what the
plea connoted and its consequences.” Id. at 1002 (quoting Commonwealth
v. Lewis, 708 A.2d 497, 501 (Pa.Super.1998)). After a defendant enters a
guilty plea, “it is presumed that he was aware of what he was doing, and the
burden of proving involuntariness is upon him.” Id. (quoting
Commonwealth v. Bedell, 954 A.2d 1209, 1212 (Pa.Super.2008)).
Based on our review of the record, we agree with the PCRA court that
Page’s claim lacks arguable merit. The PCRA court reasoned:
The Commonwealth reviewed the guilty plea colloquy
with [Page]. [N.T., Sentencing 6/18/13,] p. 3.
Further, the plea was an open plea, and the
Commonwealth confirmed with both [Page] and [his]
counsel that the open plea was agreed upon. N.T.,
p. 2. The Commonwealth confirmed that [Page]
understood the maximum sentences and asked if he
had any question, to which [he] responded “no”.
N.T., p. 5. The Commonwealth asked several times
if [Page] had any questions and also asked if [he]
was forced to sign the plea; again, [Page] responded
“no”. N.T., p. 6. The Commonwealth explained that
since it was an open plea, [Page] could face the
maximum sentence in jail and the maximum fines.
N.T., p. 5. [Page] indicated that he understood this.
N.T., p. 5.
-7-
J-S26044-15
The Commonwealth reviewed all the charges with
[Page] and specifically the criminal attempt[ed]
murder charge, and [Page] pled guilty to that
charge. N.T., p. 9. The Honorable Judge Lewis
handled the guilty plea and addressed [Page] to
confirm that he understood all of the questions asked
by the Commonwealth. N.T., p. 12. Judge Lewis
then confirmed that [Page] understood what an open
plea was and asked if he had any questions for the
Court, his attorney or the Commonwealth. N.T., p.
13. [Page] indicated he had no questions. The
Court then asked: “Are you pleading guilty
knowingly, voluntarily of your own free choice?”
[Page] responded “yes”. N.T., p. 13.
It is apparent from the record that a thorough
colloquy was done and [Page] was given multiple
opportunities to raise his concerns. He specifically
pled guilty to the criminal attempt[ed] murder
charge which was explained to him thoroughly by the
Commonwealth. He indicated he understood the
possible sentence he faced and failed to indicate at
the guilty plea that this was not what he had
discussed with his attorney, despite multiple
opportunities to do so.
Trial Court Memorandum Opinion, pp. 5-6. We fully agree with the trial
court’s analysis.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/24/2015
-8-