Com. v. Morris, M. ( 2015 )

J-S34011-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MATTHEW MORRIS,
Appellant No. 1842 MDA 2014
Appeal from the PCRA Order October 7, 2014
In the Court of Common Pleas of Lancaster County
Criminal Division at No(s): CP-36-CR-0003254-2012
BEFORE: BOWES, OTT and STABILE, JJ.
MEMORANDUM BY BOWES, J.: FILED OCTOBER 14, 2015
Matthew Morris appeals from the October 7, 2014 order denying him
PCRA relief. We affirm.
Appellant was charged in two criminal informations, No. 3252-12 and
No. 3254-12, with four counts of robbery, conspiracy, and theft, stemming
from a weeklong spree of robberies of wine and spirit stores and individuals
who were accessing ATM machines.1 In several of the robberies, Appellant
or his accomplice displayed a knife.
On February 27, 2013, Appellant pled guilty to some of the charges
and was sentenced to eight to twenty years imprisonment pursuant to a
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1
Appellant was originally charged at No. 3252 with three counts of robbery,
all first-degree felonies. At the preliminary hearing, two of the robbery
counts were reduced to second and third degree felonies.
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negotiated plea agreement. At No. 3252, Appellant was sentenced to three
to six years incarceration on the first-degree felony robbery count; two to
four years incarceration on the second-degree felony robbery count; and one
to four years of incarceration on the third-degree felony robbery count. The
conspiracy charge was nolle prossed; the theft charge merged with the
robbery. All sentences ran concurrently to each other and to the sentences
imposed at No. 3254.
At No. 3254, Appellant pled to the first-degree felony robbery and was
sentenced to five to ten years incarceration. On the conspiracy to commit
robbery charge, he was sentenced to a consecutive three to ten year
imprisonment. Again, the theft charge merged with the robbery. All
sentences imposed at No. 3254 were to run concurrently with the sentences
imposed at No. 3252, resulting in an aggregate sentence of eight to twenty
years imprisonment.
Appellant did not pursue a direct appeal. On March 27, 2014, he filed
a counseled PCRA petition in which he alleged that plea counsel’s deficient
representation culminated in a plea that was not knowing and voluntary, but
was instead induced by counsel’s ineffectiveness in failing to explain the
difference between concurrent and consecutive sentences. He asked that he
be permitted to withdraw his guilty plea and stand trial on the charges.
The trial court held an evidentiary hearing on the petition on June 24,
2014, and the parties filed briefs. On October 7, 2014, the court denied
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relief. Appellant timely appealed and complied with the trial court’s order to
filed a Pa.R.A.P. 1925(b) concise statement of errors complained of on
appeal. He raises one question for our review:
I. Did the trial judge err in not finding trial counsel ineffective
for failing to properly communicate with Appellant and aid
his preparation of a defense and further for his failure to
explain the difference between concurrent and consecutive
as a sentencing option?
Appellant’s brief at 4.
In reviewing the PCRA court’s denial of post-conviction relief, we must
determine whether the court’s findings are supported by the record and free
of legal error. Commonwealth v. Treiber, 2015 Pa. LEXIS 1775, *9-10
(Pa. Aug. 17, 2015). In doing so, we accord great deference to the PCRA
court’s credibility determinations, and where supported by the record, they
are binding on this Court. Id.Appellant’s claim is one of counsel ineffectiveness. To be entitled to
relief on such a claim, a PCRA petitioner must establish all three prongs of
the ineffective assistance of counsel test enunciated in Commonwealth v.
Pierce, 527 A.2d 973, 975-76 (Pa. 1987). He must demonstrate: “(1) the
underlying claim has arguable merit; (2) no reasonable basis existed for
counsel's action or failure to act; and (3) he suffered prejudice as a result of
counsel's error, with prejudice measured by whether there is a reasonable
probability the result of the proceeding would have been different.”
Commonwealth v. Chmiel, 30 A.3d 1111, 1127 (Pa. 2011). We start from
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the presumption that counsel rendered effective assistance.
Commonwealth v. Ali, 10 A.3d 282, 291 (Pa. 2010).
Where, as here, the underlying ineffectiveness implicates a guilty plea,
such a claim will provide relief only “if the ineffectiveness caused an
involuntary or unknowing plea.” Commonwealth v. Diaz, 913 A.2d 871,
872 (Pa.Super. 2006). This Court held in Diaz that this test is analogous to
“the ‘manifest injustice’ standard applicable to all post-sentence attempts to
withdraw a guilty plea.” Id.Appellant first contends that appointed counsel “rarely came to see
him” while he was incarcerated, that he did not discuss his case or supply
him with discovery documents, or assist him in formulating his defense. He
maintains that he wanted to go to trial but that counsel refused.
Furthermore, he contends that he would not have pled guilty if counsel had
explained to him the difference between concurrent and consecutive
sentencing. Appellant now seeks to withdraw his guilty pleas.
At the evidentiary hearing, trial counsel testified as follows. He
exclusively practices criminal law, and was appointed to represent Appellant
prior to the preliminary hearing. He met with Appellant regularly for
purposes of discussing his defense and he conferred with Appellant’s
parents. Prison sign-in sheets confirmed that counsel saw Appellant at least
once per month, and more often in the month prior to the guilty plea.
Counsel and Appellant discussed the details of the case, all plea offers,
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reviewed the discovery, and counsel shared an email from the prosecutor
explaining Appellant’s options: to take the plea offer, take an open plea, or
go to trial. That email also stated that the offer extended to Appellant’s co-
defendant was four and one-half to ten years, based on a prior record score
of zero. Counsel testified that he explained to Appellant why the co-
defendant’s offer was more favorable, but Appellant was not happy with the
reasons.
Counsel reported that he discussed the difference between concurrent
and consecutive sentences in explaining the plea offer. Additionally, he
reviewed the applicable sentencing guidelines, explained the deadly weapons
enhancement, and apprised Appellant of the sentencing implications should
he be convicted. After Appellant decided to accept the plea offer, counsel
explained each question on the written guilty plea colloquy form.
Appellant presented a different picture. He professed to be unsure of
the charges against him because he had not seen the “affidavit” and he and
counsel “never sat down and talked about what was going on.” N.T. PCRA
Hearing, 6/24/14, at 33. He complained that counsel never gave him a
chance to explain what happened. Appellant maintained that counsel only
came to meet with him once a month and spent five minutes or less with
him, maybe ten minutes on a couple of occasions. Id. at 33-34. Appellant
testified that counsel only gave him ten minutes to review discovery; trial
strategy was never discussed. He allegedly fired counsel on one occasion
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because he was not helping him: the plea offer remained the same for the
year he was awaiting trial. Id. at 37. According to Appellant, he wanted to
ask counsel why his co-defendant was receiving an offer of a four to eight
year sentence while his offer was eight to twenty years. Appellant insisted
that he only took the plea because counsel represented that, otherwise, he
would get fifteen to thirty years imprisonment, and his parents were
pressuring him. He stated he would never have agreed to plead guilty if
counsel had explained the difference between a concurrent and consecutive
sentence. He acknowledged that he did not expect to be acquitted, but that
he “didn’t expect an eight to 20.” Id. at 40. His “intent was just to get
something . . . a little more fair, . . . . like what my co-defendant received.”
Id.
On cross-examination, Appellant agreed with the prosecutor who
suggested that, “[t]he bottom line is that you are not satisfied with your
sentence.” Id. at 41. He denied any recollection of the prosecutor outlining
the basis for the charges against him at the hearing on the guilty plea or of
counsel reviewing the written guilty plea colloquy with him. Although
Appellant insisted that he was not informed by counsel of the difference
between concurrent and consecutive sentences, he acknowledged that the
court advised him that his sentence would be eight to twenty years
imprisonment.
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The court credited counsel’s testimony concerning his representation
rather than Appellant’s perception of the attorney-client relationship. It
found, based on counsel’s testimony and the prison records, that counsel
met regularly with Appellant to discuss his case. In addition, the court
believed counsel’s statement that he explained the difference between
concurrent and consecutive sentences to Appellant, and found no merit in
Appellant’s claim that counsel was ineffective in his representation. In
concluding that Appellant knowingly and voluntarily chose to accept the plea
offer, the court relied upon Appellant’s written colloquy, as well as his
affirmative representation in open court that he reviewed and understood
the charges, the sentencing guidelines, and his affirmative answers to all of
the inquiries mandated by Pa.R.Crim.P. 590. The court concluded that
Appellant voluntarily and knowingly agreed to plead guilty in exchange for a
sentence of eight to twenty years imprisonment.
We find the trial court’s credibility determinations to be amply
supported by the record, and hence, we have no grounds to disturb them.
Largely as a result of those credibility determinations, Appellant’s claims of
counsel ineffectiveness lack a factual basis. Furthermore, we fail to
comprehend, and Appellant does not enlighten us, how knowledge of the
distinction between a consecutive or concurrent sentence would have had
any impact on Appellant’s decision whether to plead guilty. Appellant
conceded that he was informed, and he understood, that by accepting the
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negotiated plea, he was agreeing to an aggregate sentence of eight to
twenty years incarceration.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/14/2015
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