Com. v. Lauer, U. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
URSULA L. LAUER
Appellant No. 1722 WDA 2015
Appeal from the PCRA Order October 20, 2015
In the Court of Common Pleas of Venango County
Criminal Division at No(s): CP-61-CR-0000002-2014
CP-61-CR-0000358-2014
CP-61-CR-0000391-2014
BEFORE: BENDER, P.J.E., OTT, J., and MUSMANNO, J.
MEMORANDUM BY OTT, J.: FILED AUGUST 19, 2016
Ursula L. Lauer appeals from the order entered October 20, 2015, in
the Venango County Court of Common Pleas, dismissing her first petition
filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§
9541-9545. On August 29, 2014, Lauer was sentenced to an aggregate
term of 39 to 80 months’ imprisonment following her guilty pleas, at three
separate dockets, to charges of retail theft and forgery (two counts).1 On
appeal, Lauer contends the PCRA court erred in dismissing her claim that
plea counsel was ineffective for forcing her to enter an unknowing and
involuntary guilty plea. For the reasons below, we affirm.
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1
18 Pa.C.S. §§ 3929(b)(iv) and 4101, respectively.
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The relevant facts and procedural history are as follows. On April 21,
2014, Lauer entered a guilty plea to one charge of retail theft at Docket C.R.
No. 2-2014, in exchange for which the Commonwealth agreed to a standard
range sentence. Thereafter, on August 14, 2014, she entered an open guilty
plea to two counts of forgery, one at Docket C.R. No. 358-2014, and the
other at Docket C.R. No. 391-2014. In exchange for those pleas, the
Commonwealth withdrew several additional charges.
On August 29, 2014, the trial court sentenced Lauer on all three
dockets. In each case, she received a standard range sentence, for an
aggregate term of 39 to 80 months’ imprisonment.2 No direct appeal was
filed. On February 12, 2015, Lauer filed a pro se PCRA petition, asserting
she was innocent of one count of forgery and that plea counsel misled her as
to the sentence she would receive. New counsel was appointed, and filed an
amended PCRA petition on July 21, 2015, asserting plea counsel’s
ineffectiveness caused her to enter an unknowing plea. The PCRA court
convened a hearing on July 22, 2015. Thereafter, on October 20, 2015, the
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2
At Docket C.R. No. 2-2012, Lauer was sentenced to a term of 11 to 24
months’ imprisonment for retail theft. At Docket C.R. Nos. 358-2014 and
391-2014, she received identical sentences of 14 to 28 months’
imprisonment on each count of forgery. The trial court directed that all of
the sentences be served consecutively to each other.
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court entered an order denying Lauer’s request for relief. This timely appeal
follows.3
Lauer’s sole claim on appeal is the PCRA court erred in dismissing her
claim that plea counsel was ineffective for forcing her to enter an unknowing
and involuntary plea. When reviewing an order dismissing a PCRA petition,
we must determine whether the PCRA court’s findings of fact are supported
by the record, and whether its legal conclusions are free from error.
Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014). “Great deference
is granted to the findings of the PCRA court, and these findings will not be
disturbed unless they have no support in the certified record.”
Commonwealth v. Carter, 21 A.3d 680, 682 (Pa. Super. 2011) (citation
omitted). Moreover, “[t]he PCRA court’s credibility determinations, when
supported by the record, are binding on this Court.” Commonwealth v.
Spotz, 18 A.3d 244, 259 (Pa. 2011).
Where, as here, the petitioner alleges the ineffectiveness of prior
counsel in conjunction with a guilty plea, our review is as follows:
To prevail on a claim alleging counsel’s ineffectiveness
under the PCRA, Appellant must demonstrate (1) that the
underlying claim is of arguable merit; (2) that counsel’s
course of conduct was without a reasonable basis designed
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3
On October 29, 2015, the PCRA court ordered Lauer to file a concise
statement of the errors complained of on appeal pursuant to Pa.R.A.P.
1925(b). Lauer complied with the court’s directive, and filed a concise
statement on November 9, 2015.
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to effectuate his client’s interest; and (3) that he was
prejudiced by counsel’s ineffectiveness, i.e. there is a
reasonable probability that but for the act or omission in
question the outcome of the proceedings would have been
different.
It is clear that a criminal defendant’s right to effective
counsel extends to the plea process, as well as during trial.
However, [a]llegations 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.
Commonwealth v. Wah, 42 A.3d 335, 338 (Pa. Super. 2012)
(citations, quotation, and quotation marks omitted). “[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.]
Anderson, 995 A.2d [1184,] 1192 [Pa. Super. 2010] (citations,
quotation, and quotation marks omitted).
Commonwealth v. Willis, 68 A.3d 997, 1001-1002 (Pa. Super. 2013).
In the present case, Lauer contends she did not understand the plea
agreement, and “felt forced by her counsel to enter into a plea of guilt on
one case even though she had conveyed to counsel that she wanted to go to
trial.” Lauer’s Brief at 10. Further, Lauer claims plea counsel never met with
her before the hearing, and she had insufficient time to ask questions or
“discuss … what her options were.” Id. at 10-11.
When considering the voluntariness of a defendant’s guilty plea,
[t]he longstanding rule of Pennsylvania law is that a defendant
may not challenge his guilty plea by asserting that [she] lied
while under oath, even if [she] avers that counsel induced the
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lies. A person who elects to plead guilty is bound by the
statements [she] makes in open court while under oath and
[she] may not later assert grounds for withdrawing the plea
which contradict the statements [she] made at [her] plea
colloquy.
Commonwealth v. Pollard, 832 A.2d 517, 524 (Pa. Super. 2003). See
also Commonwealth v. Yeomans, 24 A.3d 1044, 1047 (Pa. Super. 2011).
Our review of the record reveals the trial court conducted an extensive
oral colloquy before accepting each guilty plea. See N.T., 4/21/2014
(Docket C.R. No. 2-2014); N.T., 8/14/2014 (Docket C.R. Nos. 358-2014 and
391-2014). With respect to the particular claims raised herein, Lauer
acknowledged that: (1) she had a complete understanding of the plea
agreements; (2) no promises were made to her other than those outlined in
the agreements;4 (3) no one threatened or intimidated her to plead guilty;
and (4) she had enough time to discuss the cases with her attorney. See
N.T., 4/21/2014, at 18-19; N.T. 8/14/2014, at 34-35. In fact, at the end of
both colloquies, before accepting the pleas, the trial court provided Lauer
with one last opportunity to question either her attorney or the trial court.
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4
In exchange for Lauer’s guilty pleas, the Commonwealth agreed to the
following. At Docket C.R. No. 2-2014 (retail theft), the Commonwealth
recommended a standard range sentence. See N.T. 8/14/2014, at 25.
Further, at Docket C.R. Nos. 358-2014 and 391-2014 (forgery), the
Commonwealth agreed to nolle pros the remaining charges. See N.T.,
4/21/2014, at 12. Those charges included access device fraud and theft at
both dockets, and identity theft and receiving stolen property at Docket C.R.
No. 391-2014. See 18 Pa.C.S. §§ 4106(a)(1)(ii), 3921(a), 4120(a), and
3925, respectively.
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THE COURT: I have not yet accepted your plea of guilty.
You may, if you so desire, change your mind now, enter a plea
of not guilty and stand trial. Therefore, I ask you, is it still your
desire to enter a plea of guilty to the charge subject to the terms
of the plea agreement?
[LAUER]: Yes.
THE COURT: Do you do this of your own choice?
[LAUER]: Yes.
THE COURT: Do you have any questions that you desire to
ask about anything I have said to you or about anything at all?
[LAUER]: No.
THE COURT: Do you have any questions for your
attorney[?]
[LAUER]: No.
THE COURT: The court finds the plea is intelligently,
voluntarily tendered. The pleas are accepted.
N.T., 8/14/2014, at 37. See also N.T., 4/21/2014, at 21.
Lauer’s allegations on appeal contradict the statements she made
during her respective plea colloquies. Accordingly, her ineffectiveness claim
has no arguable merit, and she is entitled to no relief. See Pollard, supra.Moreover, we note Lauer’s principal complaint during the PCRA hearing
was that counsel purportedly promised she would receive a county sentence,
so that she was “pretty shocked” when she “got all the prison time.”5 N.T.,
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5
In fact, when questioned why she did not tell the court that there were
promises made to her other than those disclosed in the plea agreement,
Lauer responded: “I was all right with the county sentence. [Counsel]
promised me a county sentence, so I was all right with that.” N.T.,
10/1/2015, at 8.
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10/1/2015, at 17. However, she does not repeat that claim in her brief.
Accordingly, it is waived for our review. See Pa.R.A.P. 302(a).
Further, we note that even if we were to find Lauer’s claim had
arguable merit, we would conclude she failed to demonstrate counsel had no
reasonable basis for informing her she had to enter a guilty plea on both
forgery charges. Although Lauer alleges she was innocent of one of the
forgery charges and wanted to go to trial on that charge, she testified at the
PCRA hearing: “I was pleading guilty for both [forgery] charges because
that is what I was informed I had to do. I had to plead guilty to both
charges for them to drop the rest of them.” N.T., 10/1/2015, at 18. The
record does not reveal whether the Commonwealth would have offered
Lauer a plea deal on only one of the forgery charges, or, if as she states,
the Commonwealth insisted she “had to plead guilty to both charges for
them to drop the rest of [the charges].” Id. Significantly, Lauer did not call
plea counsel to testify. Therefore, she has failed to prove counsel had no
reasonable basis for informing her the plea agreement was part of a
“package deal” which included both dockets, when, in fact, that may have
been true.
Accordingly, because we find no error or abuse of discretion on the
part of the PCRA court in dismissing Lauer’s ineffectiveness claim, we affirm
the order on appeal.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/19/2016
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