Com. v. Thomas, A. ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ANTHONY THOMAS
Appellant No. 2838 EDA 2015
Appeal from the PCRA Order September 4, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0011749-2009
CP-51-CR-0013548-2009
BEFORE: FORD ELLIOTT, P.J.E., OLSON, J., and JENKINS, J.
MEMORANDUM BY JENKINS, J.: FILED JULY 06, 2016
Appellant Anthony Thomas appeals from the order of the Court of
Common Pleas of Philadelphia County dismissing his petition filed pursuant
to the Post Conviction Relief Act, 42 Pa.C.S. §§ 9541-9546. We affirm.
On December 22, 2009, Appellant pled guilty to two counts of robbery1
and two counts of burglary2 in connection with two separate attacks on
guests at a Marriott Hotel in Philadelphia. On September 8, 2010, the trial
court sentenced Appellant to four consecutive sentences of ten to twenty
years’ imprisonment, for an aggregate sentence of forty to eighty years’
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1
18 Pa.C.S § 3701(a)(1)(ii).
2
18 Pa.C.S § 3502(a)(1).
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imprisonment. This Court affirmed the judgment of sentence on August 2,
2012.
On October 23, 2012, Appellant filed a timely pro se PCRA petition.
The PCRA court appointed counsel, who filed an amended petition on
February 7, 2014. On February 13, 2015, the Commonwealth filed a motion
to dismiss the PCRA petition. On August 7, 2015, the PCRA court issued
notice of its intent to dismiss the PCRA petition without a hearing pursuant
to Pennsylvania Rule of Criminal Procedure 907. On September 4, 2015, the
court dismissed the petition.
On September 15, 2015, Appellant filed a timely notice of appeal.
Both Appellant and the trial court complied with Pennsylvania Rule of
Appellate Procedure 1925.
Appellant raises the following question on appeal:
I. Should [A]ppellant be allowed to withdraw his guilty plea
in this case because the trial court failed to conduct the
necessary colloquy to determine that [A]ppellant’s guilty
plea was knowing intelligent, and voluntary because the
trial court did not explain to [A]ppellant the elements of
the crimes to which [A]ppellant was pleading guilty, did
not inform [A]ppellant of the maximum punishments
allowable, did not ask [A]ppellant if he was promised
anything or threatened in any way to plead guilty,
[A]ppellant was not asked about his medical or mental
state at the time of the plea and was not asked by the trial
court if he, [A]ppellant signed, read or understood the
written guilty plea colloquy and because [Appellant] was
completely denied counsel at the guilty plea hearing?
Appellant’s Brief at 2.
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Our standard of review from the denial of post-conviction relief “is
limited to examining whether the PCRA court’s determination is supported by
the evidence of record and whether it is free of legal error.”
Commonwealth v. Ousley, 21 A.3d 1238, 1242 (Pa.Super.2011) (citing
Commonwealth v. Morales, 701 A.2d 516, 520 (Pa.1997)).
Appellant alleges the trial court erred because it failed to conduct a
proper colloquy prior to accepting Appellant’s guilty plea and alleges plea
counsel provided ineffective assistance of counsel at the guilty plea hearing.
To be eligible for PCRA relief, a “petitioner must plead and prove by a
preponderance of the evidence” that the claims of error have not been
previously litigated or waived. 42 Pa.C.S. § 9543(a)(3); Commonwealth v.
Spotz, 18 A.3d 244, 259 (Pa.2011). An issue has been waived “if the
petitioner could have raised it but failed to do so before trial, at trial, on
appeal or in a prior state post[-]conviction proceeding.” 42 Pa.C.S. §
9544(b). Appellant could have raised a claim that his guilty plea was
unknowing and involuntary, and that the trial court erred in connection with
the guilty plea, on direct appeal. Appellant, therefore, waived his trial court
error claim.
Appellant also alleges an ineffective assistance of counsel claim in
connection with the guilty plea. This claim fails.
For ineffective assistance of counsel claims, the petitioner must
establish: “(1) his underlying claim is of arguable merit; (2) counsel had no
reasonable basis for his action or inaction; and (3) the petitioner suffered
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actual prejudice as a result.” Spotz, 84 A.3d at 311 (quoting
Commonwealth v. Ali, 10 A.3d 282, 291 (Pa.2010)). To establish the
prejudice prong where an appellant has entered a guilty plea, “the appellant
must demonstrate ‘it is reasonably probable that, but for counsel’s errors, he
would not have pleaded guilty and would have gone to trial.’”
Commonwealth v. Timchak, 69 A.3d 765, 770 (Pa.Super.2013) (quoting
Commonwealth v. Rathfon, 899 A.2d 365, 370 (Pa.Super.2006)).
“[C]ounsel is presumed to be effective and the burden of demonstrating
ineffectiveness rests on appellant.” Ousley, 21 A.3d at 1244 (quoting
Commonwealth v. Rivera, 10 A.3d 1276, 1279 (Pa.Super.2010)). “The
failure to prove any one of the three [ineffectiveness] prongs results in the
failure of petitioner’s claim.” Id. (quoting Rivera, 10 A.3d at 1279).
Here, the PCRA court found the underlying claim lacked merit and
found Appellant failed to establish he suffered prejudice due to any alleged
ineffectiveness.
“[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
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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)). Under Pennsylvania Rule of
Criminal Procedure 590, the court should confirm, inter alia, that a
defendant understands: (1) the nature of the charges to which he is
pleading guilty; (2) the factual basis for the plea; (3) he is giving up his
right to trial by jury; (4) he is giving up his right to the presumption of
innocence; (5) the permissible ranges of sentences and fines possible; and
(6) the court is not bound by the terms of the agreement unless the court
accepts the plea. Commonwealth v. Prendes, 97 A.3d 337, 352
(Pa.Super.2014) (citing Commonwealth v. Watson, 835 A.2d 786
(Pa.Super.2003)). “The reviewing Court will evaluate the adequacy of the
plea colloquy and the voluntariness of the resulting plea by examining the
totality of the circumstances surrounding the entry of that plea.” Id. (citing
Commonwealth v. Muhammad, 794 A.2d 378 (Pa.Super.2002)).
Further, “where the totality of the circumstances establishes that a
defendant was aware of the nature of the charges, the plea court’s failure to
delineate the elements of the crimes at the oral colloquy, standing alone, will
not invalidate an otherwise knowing and voluntary guilty plea.”
Commonwealth v. Morrison, 878 A.2d 102, 107 (Pa.Super.2005) (citing
Commonwealth v. Schultz, 477 A.2d 1328 (Pa.1984)).
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As to the underlying claim that Appellant did not enter a knowing and
voluntary guilty plea, the PCRA court found:
Contrary to [Appellant’s] claims, a written guilty plea
colloquy describing all of the necessary factors was
executed and signed by [Appellant] and [t]rial [c]ounsel on
12/22/09. This written colloquy has various checks and
circles that imply it was reviewed with [Appellant] at some
point. [The trial] court also asked [Appellant] whether he
had discussed the case with his attorney, whether
[Appellant] was satisfied with his attorney, and if
[Appellant] had resolved any questions for his attorney.
N.T. 12/22/09, 4. [Appellant] responded affirmatively to
each of these questions. [The trial c]ourt therefore had
good reason to rely on the written colloquy. Additionally,
[the trial c]ourt, in an abundance of caution, did ask a
range of questions designed to gauge competence and the
presence or absence of coercion. N.T. 12/22/09, 4-5. The
Assistant District Attorney (“ADA”) then laid out the
allegations in the Affidavits of Probable Cause, separating
facts into the appropriate elements for each charge, and
pausing to allow [Appellant] to plead guilty to each charge
after the relevant factual background in those affidavits
were read. The Affidavit of Probable Cause has been
deemed a valid factual basis for accepting a guilty plea in
Pennsylvania. [Commonwealth] v. Nelson, [317 A.2d
228, 229 (Pa.1974)].
Having been informed that this conduct was the basis of
the charges against him, [Appellant] tendered a guilty plea
and thereby admitted that he had in fact committed the
offense. [Commonwealth] v. Schultz, [477 A.2d 1328,
1331 (Pa.1984)]. Standing alone, the written colloquy and
on record colloquy each provide the quantum of
information required for [Appellant] to understand the
charges against him and their basis in both law and fact.
[Appellant] has also [pled] guilty to [r]obbery in the past,
so he must have had some pre-existing knowledge of the
nature of the charges. While the on-record colloquy does
not directly address statutory maximums (rather, it
confirms that [t]rial [c]ounsel reviewed the information
with the [Appellant]), “it is fatuous for appellant to suggest
now that he was unaware of the nature of the charges
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brought against him merely because the trial court failed
to fully re-explain each and every element of the charges
during his second colloquy. . . . Under the totality of the
circumstances, it is clear that appellant was well aware of
the nature of the charges to which he plead guilty.”
[Commonwealth] v. Iseley, [615 A.2d 408, 416
(Pa.Super.1992)].
1925(a) Opinion, 12/9/2015, at 5-6. The trial court’s determination that the
underlying claim lacked merit is supported by the record and free of legal
error.
The trial court further found that Appellant failed to establish he
suffered prejudice due to any alleged ineffectiveness. 1925(a) Opinion,
12/9/2015, at 4. This finding also is supported by the record and free of
legal error, as Appellant makes no showing that he would have pled not
guilty and proceeded to trial. See Commonwealth v. Timchak, 69 A.3d
765, 770 (Pa.Super.2013).3
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/6/2016
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3
The PCRA court also found Appellant failed to establish counsel did not
have a reasonable basis for his failure to challenge the plea because counsel
was not expected to preserve a meritless claim. 1925(a) Opinion,
12/9/2015, at 6.
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