Com. v. Boyd, J. ( 2017 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
JOHN JERMAINE BOYD
Appellant No. 3479 EDA 2015
Appeal from the PCRA Order October 27, 2015
in the Court of Common Pleas of Lehigh County Criminal Division
at No(s): CP-39-CR-0000773-2012
BEFORE: SHOGAN, MOULTON, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED MAY 18, 2017
Appellant, John Jermaine Boyd, appeals from the order dismissing his
petition for relief under the Post Conviction Relief Act 1 (“PCRA”) without a
hearing. Appellant challenges (1) the effectiveness of his previously
appointed PCRA counsel; (2) prior counsel’s failure to file a direct appeal;
and (3) the validity of his guilty plea to two counts of third degree murder.2
We affirm.
The procedural history of this appeal is as follows. On January 15,
2014, Appellant pleaded guilty to two counts of third degree murder. Guilty
*
Former Justice specially assigned to the Superior Court.
1
42 Pa.C.S. §§ 9541-9546.
2
18 Pa.C.S. § 2502(c).
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Plea Hr’g, 1/15/14, at 3. At the guilty plea hearing, the trial court conducted
a thorough colloquy.3
On March 4, 2014, the trial court sentenced Appellant to the
negotiated two consecutive terms of twenty to forty years’ imprisonment.
Appellant did not file post-sentence motions or a direct appeal from the
judgment of sentence.
On December 16, 2014, Appellant timely filed a pro se PCRA petition
challenging, inter alia, the discretionary aspects and legality of his sentence
and the effectiveness of plea counsel. The court appointed counsel to
represent Appellant.4 On July 15, 2015, PCRA counsel filed a petition to
3
Appellant stated that he reviewed the guilty plea colloquy form with plea
counsel, initialed each page of the form, signed the form at the end
voluntarily, and understood all of the rights he was giving up by pleading
guilty. Guilty Plea Hr’g at 3-4. The court reviewed the elements of third
degree murder, and Appellant indicated that he understood them. Id. at 9-
12. Appellant stated that he understood the Commonwealth’s summary of
the evidence and admitted doing what the Commonwealth said with regard
to each victim. Id. at 14-23. Finally, Appellant admitted that he was
pleading guilty of his own free will, fully understood what he was doing by
pleading guilty, was not pleading guilty due to any threat or force, and was
satisfied with the services of his attorney. Id. at 24-25.
4
The PCRA court initially appointed first PCRA counsel but appointed
substitute PCRA counsel after granting first PCRA counsel leave to withdraw
due to a conflict of interest. Substitute counsel (“PCRA counsel”) requested
an extension of time to file a petition due to the unavailability of the
transcripts of the guilty plea and sentencing hearings. On June 25, 2016,
the PCRA court denied the request, indicating that it previously granted
PCRA counsel leave to file an amended petition within sixty days of his
receipt of the transcripts.
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withdraw with an attached “no-merit” Finley5 letter stating that the issues
raised by Appellant were without merit.
On July 27, 2015, the court issued a Pa.R.Crim.P. 907 notice of intent
to dismiss the PCRA petition without a hearing and granted substitute
counsel’s motion to withdraw. On August 24, 2015, Appellant filed a pro se
response in which he claimed, for the first time, that plea counsel
disregarded his request to file a direct appeal. Appellant did not, however,
allege PCRA counsel’s ineffectiveness. On October 28, 2015, the court
dismissed Appellant’s PCRA petition.
Appellant timely appealed to this Court. On December 11, 2015, the
court issued an order directing Appellant to file a Pa.R.A.P. 1925(b)
statement (“Rule 1925 statement”). On December 27, 2015, Appellant
mailed a Rule 1925 statement to the Clerk of Courts and the PCRA judge. 6
Pa.R.A.P. 1925(b) statement, Certificate of Service. Appellant’s Rule 1925
statement did not raise guilty plea counsel’s alleged failure to honor
Appellant’s request to file a direct appeal. On January 20, 2016, the PCRA
court filed a Pa.R.A.P. 1925(a) opinion.
5
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988).
6
The trial court docket does not contain an entry for the Pa.R.A.P. 1925(b)
statement. Nevertheless, based on the certificate of service appended to
Appellant’s Rule 1925 statement, we deem Appellant to have timely filed this
statement on December 27, 2015 pursuant to the “prisoner mailbox rule.”
See Commonwealth v. Wilson, 911 A.2d 942, 944 n.2 (Pa. Super. 2006)
(“a document is deemed filed when placed in the hands of prison authorities
for mailing”).
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Appellant raises five issues in this appeal, which we re-order for
purposes of disposition:
1. Whether the Court did abuse its discretion or commit
an error of law by denying PCRA relief when [Appellant]’s
guilty plea was rendered involuntary, unknowing and
unintelligent by the ineffective assistance of counsel’s
investigation, failure to follow up with requested discovery,
case preparation and plea negotiations?
2. Whether the Court did abuse its discretion or commit an
error of law by denying PCRA relief when [Appellant]’s
PCRA process was rendered fundamentally unfair and in
violation of [Appellant]’s Constitutional Rights by PCRA
counsel’s ineffectiveness and by the prosecutorial
misconduct of the Philadelphia District Attorney’s Office?
3. Whether the Court did abuse its discretion or commit an
error of law by denying PCRA relief when [Appellant]’s
guilty plea was involuntary, unknowing and unintelligent
by the prosecutorial misconduct of the Philadelphia District
Attorney’s Office’s evidence tampering, withholding of
evidence, threats and improper tactics used during plea
negotiations?
4. Whether the Court did abuse its discretion or commit an
error of law by denying PCRA relief when [Appellant]’s
guilty plea was rendered involuntary, unknowing and
unintelligent by a defective guilty plea colloquy and
insufficiency of evidence?
5. Whether the Court did abuse its discretion or commit an
abuse of discretion by denying PCRA relief when
[Appellant]’s guilty plea was rendered involuntary,
unknowing and unintelligent by the availability of
affirmative defenses unknown to the [Appellant] at the
time of the plea?
Appellant’s Brief at 4-5.
In his first issue on appeal, Appellant contends that plea counsel was
ineffective for failing to seek a post-sentence withdrawal of his guilty plea
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and disregarding his request for a direct appeal. Id. at 23. Second,
Appellant argues that plea counsel failed to review discovery with him and
induced his plea with a video of his children “begging and crying for him not
to go to trial.” Id. No relief is due.
Preliminarily, we must consider whether these claims have been
preserved for appeal. With regard to Appellant’s claim that guilty plea
counsel “failed to review requested discovery and failed to review with
[Appellant] the paucity of discovery he did receive,” Appellant’s brief
completely fails to identify the discovery that guilty plea counsel allegedly
failed to review or demonstrate how counsel’s omission prejudiced him.7
Therefore, he has waived this issue. See Pa.R.A.P. 2119(a);
Commonwealth v. Freeman, 128 A.3d 1231, 1249 (Pa. Super. 2015)
(murder defendant failed to adequately brief his argument of unlawful jury
7
Other than reciting the PCRA statute and several basic tests for
determining ineffective assistance, Appellant limits his entire substantive
argument to the following:
Direct Appeal counsel failed to file a requested direct
appeal.
Plea counsel failed to file a motion to withdraw the plea
prior to sentencing, or within [ten] days thereafter.
Trial counsel failed to review requested discovery and
failed to review with [Appellant] the paucity of discovery
he did receive, prior to counsel inducing [Appellant] to plea
with a video of [Appellant’s] minor children begging and
crying for him not to go to trial.
Appellant’s Brief at 23.
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tampering by prosecution, and thus waived argument on appeal, where he
made no effort to discuss applicable law, apply the law to the facts or
develop coherent legal argument in support of his claim). Further, Appellant
failed to state in his Rule 1925 statement that (1) direct appeal counsel
failed to file a requested appeal, or (2) guilty plea counsel failed to move to
withdraw his guilty plea prior to sentencing or within ten days thereafter.
Thus, Appellant has waived these arguments. See Commonwealth v.
Kingston, 143 A.3d 917, 922 n.4 (Pa. 2016) (PCRA petitioner waived claim
that his convictions for three counts of soliciting perjury should have merged
with convictions for three counts of soliciting to hinder apprehension or
prosecution where, among other waivers, he failed to raise this issue in his
Rule 1925 statement); Commonwealth v. Bond, 985 A.2d 810, 823 (Pa.
2009) (capital defendant waived claim that he was entitled to a new penalty
phase hearing because trial court required him to be shackled during original
hearing, where defendant failed to include that claim in his Rule 1925
statement).
In his second issue, Appellant accuses PCRA counsel of ineffective
assistance during PCRA proceedings. Appellant waived this argument by
failing to assert it in his Rule 1925 statement. See Commonwealth v.
Henkel, 90 A.3d 16, 29 (Pa. Super. 2014) (en banc) (claims of ineffective
assistance of PCRA counsel may not be raised for the first time on appeal;
such claims must be raised in response to Pa.R.Crim.P. 907 notice of
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dismissal or in serial PCRA petition). In any event, having reviewed the
record, we conclude that PCRA counsel’s Finley letter was comprehensive
and correct, and therefore Appellant’s claim of ineffectiveness is devoid of
merit.
In his remaining claims on appeal, Appellant appears to assert
misconduct by the district attorney, defects in the guilty plea colloquy,
inadequate factual bases for his plea and the existence of affirmative
defenses to the charges. He fails, however, to support these assertions with
meaningful discussion of the law or facts of this case. Therefore, these
claims are waived. See Pa.R.A.P. 2119(a); Freeman, 128 A.3d at 1249.
For these reasons, we affirm the dismissal of Appellant’s PCRA petition
without a hearing.
Order affirmed.
Judge Moulton joins the Memorandum.
Judge Shogan Concurs in the Result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/18/2017
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