Com. v. Garland, D. ( 2022 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
D'AMBROSSE KANE GARLAND :
:
Appellant : No. 514 WDA 2021
Appeal from the PCRA Order Entered March 4, 2021
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0015121-2018
BEFORE: PANELLA, P.J., OLSON, J., and SULLIVAN, J.
MEMORANDUM BY OLSON, J.: FILED: JUNE 27, 2022
Appellant, D’Ambrosse Kane Garland, appeals from the order entered
March 4, 2021, which denied his first petition filed pursuant to the
Post-Conviction Relief Act (“PCRA”).1 We affirm.
Appellant’s underlying convictions for murder in the third degree,
robbery – inflicting serious bodily injury, conspiracy to commit robbery –
inflicting serious bodily injury, firearms not to be carried, and persons not to
possess firearms,2 stem from an October 13, 2018 shooting death during the
robbery of a Dominos pizza delivery driver. The trial court appointed counsel
to represent Appellant. Appellant proceeded to a guilty plea hearing on
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1 42 Pa.C.S.A. §§ 9541-9546.
2 18 Pa.C.S.A. §§ 2502(c), 3701(a)(11), 903, 6106(a)(1), and 6105(c)(1),
respectively.
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October 2, 2019. Pursuant to a negotiated plea agreement, Appellant pled
guilty to the aforementioned charges in exchange for a sentence of 20 to 40
years’ incarceration with a 10-year period of probation to run consecutive to
his incarceration.
Through responses to both oral and written colloquies undertaken
during the plea hearing, Appellant acknowledged: his overall satisfaction with
representation by counsel; his comprehension of the elements of each offense
for which he entered a guilty plea; his understanding of the maximum penalty
for each offense to which he pled guilty; his understanding of the nature of
his plea and the rights he surrendered by entering a guilty plea, including his
right to trial by a jury of his peers and his right to a presumption of innocence
until found guilty beyond a reasonable doubt by a unanimous jury; his
understanding that the entry of a guilty plea waived the right to appeal certain
issues; confirmation that he received no promises or threats which caused him
to plead guilty; and, that his decision to plead guilty was made voluntarily.
See Guilty Plea Explanation of Defendant’s Rights, 10/2/19; see also N.T.
Guilty Plea, 10/2/19, at 5-15. After hearing Appellant’s testimony and
reviewing Appellant’s responses to the foregoing inquiries, the trial court
accepted Appellant’s guilty plea as knowing and voluntary and immediately
imposed the negotiated sentence. Id. at 15-16, 24. Appellant filed a timely
pro se post-sentence motion requesting reconsideration of his negotiated
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sentence, which was subsequently denied by operation of law. No appeals
were filed.
On June 5, 2020, Appellant filed a pro se PCRA petition, his first, alleging
that plea counsel’s ineffectiveness caused him to enter into an invalid guilty
plea. See PCRA Petition, 6/5/2020. The PCRA court appointed counsel, who
subsequently filed a Turner/Finley3 no-merit letter and motion to withdraw
as counsel on December 17, 2020. See Turner/Finley Letter, 12/17/20. The
PCRA court simultaneously granted counsel’s motion to withdraw and issued
a Rule 907 notice of intent to dismiss without evidentiary hearing on December
28, 2020. See Rule 907 Notice of Intent to Dismiss, 12/28/20. Appellant
failed to respond to the PCRA court’s notice. Accordingly, on March 4, 2021,
the PCRA court dismissed Appellant’s PCRA petition without an evidentiary
hearing. This appeal followed.4
Preliminarily, we must determine the timeliness of Appellant’s appeal,
as it implicates our jurisdiction. See Commonwealth v. Green, 862 A.2d
613, 615 (Pa. Super. 2004) (“Jurisdiction is vested in the Superior Court upon
the filing of a timely notice of appeal.”). A notice of appeal must be filed within
30 days of the entry of the order from which the appeal is taken. Pa.R.A.P.
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3Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v.
Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
4 After Appellant filed a pro se notice of appeal, the PCRA court appointed
counsel to represent him. Both Appellant and the PCRA court complied with
Pa.R.A.P. 1925.
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903. “In a criminal case, the date of entry of an order is the date the clerk of
courts enters the order on the docket, furnishes a copy of the order to the
parties, and records the time and manner of notice on the docket.”
Commonwealth v. Jerman, 762 A.2d 366, 368 (Pa. Super. 2000); see also
Pa.R.Crim.P. 108. Where a “review of the docket entries discloses no
indication that the clerk furnished a copy of the order to [the a]ppellant[;] …
we assume the period for taking an appeal was never triggered and the appeal
is considered timely.” Jerman, 762 A.2d at 268.
Instantly, the PCRA court’s order dismissing Appellant’s PCRA petition
was docketed on March 4, 2021; however, the docket does not indicate that
Appellant was served with a copy of this order. Rather, the docket reflects
that the order dismissing Appellant’s petition was forwarded to PCRA counsel,
even though the PCRA court allowed permitted counsel to withdraw over two
months prior. See Rule 907 Notice of Intent to Dismiss, 12/28/20 (granting
PCRA counsel’s motion to withdraw). Thus, we find Appellant’s notice of
appeal timely, as the running of the 30-day deadline within which to appeal
never began. See Commonwealth v. Bush, 197 A.3d 285, 287-288
(Pa. Super. 2018); see also Pa.R.Crim.P. 114(B)(1) (requiring a copy of any
order or court notice to promptly be served on a party if unrepresented).
Appellant raises the following issue for our review:
Did the [PCRA] court abuse its discretion in denying the PCRA
petition, as amended, without a hearing, and allowing PCRA
counsel to withdraw, insofar as there was a genuine issue
concerning material facts; specifically, that the guilty plea was not
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knowingly and voluntarily entered because trial counsel was
ineffective for failing to prepare for trial and consult with
[Appellant] regarding the Commonwealth’s evidence against him,
rather counsel informed him that [counsel] would not represent
[Appellant] if he did not accept the plea offer?
Appellant’s Brief at 4 (extraneous capitalization omitted).
Our review of a PCRA court’s decision is limited to examining
whether the PCRA court’s findings of fact are supported by the
record, and whether its conclusions of law are free from legal
error. We view the findings of the PCRA court and the evidence
of record in a light most favorable to the prevailing party. With
respect to the PCRA court’s decision to deny a request for an
evidentiary hearing, or to hold a limited evidentiary hearing, such
a decision is within the discretion of the PCRA court and will not
be overturned absent an abuse of discretion.
* * *
It is well settled that there is no absolute right to an evidentiary
hearing on a PCRA petition, and if the PCRA court can determine
from the record that no genuine issues of material fact exist, then
a hearing is not necessary. To obtain reversal of a PCRA court’s
decision to dismiss a petition without a hearing, an appellant must
show that he raised a genuine issue of fact which, if resolved in
his favor, would have entitled him to relief, or that the court
otherwise abused its discretion in denying a hearing.
Commonwealth v. Maddrey, 205 A.3d 323, 327-328 (Pa. Super. 2019)
(cleaned up; citations and quotation marks omitted).
In order to obtain relief based on an [ineffective assistance of
counsel] claim, a petitioner must establish: (1) the underlying
claim has arguable merit; (2) no reasonable basis existed for
counsel’s actions or failure to act; and (3) petitioner suffered
prejudice as a result of counsel’s error such that there is a
reasonable probability that the result of the proceeding would
have been different absent such error. Trial counsel is presumed
to be effective, and [an a]ppellant bears the burden of pleading
and proving each of the three factors by a preponderance of the
evidence.
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The right to constitutionally effective assistance of counsel
extends to counsel’s role in guiding his client with regard to the
consequences of entering into a 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. 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. Thus, to establish prejudice, the defendant must
show that there is a reasonable probability that, but for counsel’s
errors, he would not have pleaded guilty and would have insisted
on going to trial. The reasonable probability test is not a stringent
one; it merely refers to a probability sufficient to undermine
confidence in the outcome.
[Central] to the question of whether a defendant’s plea was
entered voluntarily and knowingly is the fact that the defendant
know[s] and understand[s] the nature of the offenses charged in
as plain a fashion as possible. A guilty plea is not a ceremony of
innocence, it is an occasion where one offers a confession of guilt.
Thus, a trial judge and, by extension, plea counsel is not required
to go to unnecessary lengths to discuss every nuance of the law
regarding a defendant’s waiver of his right to a jury trial in order
to render a guilty plea voluntary and knowing.
Commonwealth v. Barndt, 74 A.3d 185, 191- 193 (Pa. Super. 2013)
(cleaned up; quotation marks and citations omitted). Moreover,
[o]ur law presumes that a defendant who enters a guilty plea was
aware of what he was doing. He bears the burden of proving
otherwise.
* * *
The longstanding rule of Pennsylvania law is that a defendant may
not challenge his guilty plea by asserting that he lied while under
oath, even if he avers that counsel induced the lies. A person who
elects to plead guilty is bound by the statements he makes in open
court while under oath and may not later assert grounds for
withdrawing the plea which contradict the statements he made at
his plea colloquy.
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* * *
A defendant who elects to plead guilty has a duty to answer
questions truthfully. We cannot permit a defendant to postpone
the final disposition of his case by lying to the court and later
alleging that his lies were induced by the prompting of counsel.
Commonwealth v. Yeomans, 24 A.3d 1044, 1047 (Pa. Super. 2011)
(citations omitted). “The 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. Timchak, 69 A.3d 765, 770 (Pa. Super. 2013)
(internal citations and brackets omitted).
First, Appellant argues that plea counsel was ineffective for failing to
consult with him regarding evidence against him or any defenses or strategies.
See Appellant’s Brief at 12. Second, Appellant argues that plea counsel
“pressured him with the threat that he would withdraw if [Appellant] did not
plead guilty[.]” Id. at 13 Such arguments directly contradict Appellant’s
statements within his oral and written guilty plea colloquies attesting to his
thorough discussions with counsel, understanding of the charges and terms of
his plea agreement, admission to the factual and evidentiary basis for the
plea, satisfaction with counsel’s services, voluntary entrance of the guilty plea,
and denial that he was threatened, forced, or coerced to enter his guilty plea.5
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5 Moreover, we note that on April 15, 2019, the trial court prohibited plea
counsel from giving Appellant copies of certain evidence due to Appellant’s
(Footnote Continued Next Page)
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See Guilty Plea Explanation of Defendant’s Rights, 10/2/19, at 2, 5, 8, and
9-10; N.T. Guilty Plea and Sentencing, 10/2/19, at 6-7, 11, 15, and 16.
Appellant is bound by his prior statements, thus his contrary arguments must
fail. Yeomans, supra.Because Appellant is bound by his statements within his written and oral
colloquies, and because Appellant’s sole arguments before this Court
improperly seek only to contradict those statements made under oath, we
conclude that Appellant failed to raise any issue of material fact that would
warrant an evidentiary hearing. Maddrey, supra. Accordingly, the PCRA
court did not abuse its discretion in dismissing Appellant’s PCRA petition
without an evidentiary hearing.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/27/2022
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dissemination of that evidence over social media in his efforts to intimidate
the witnesses against him. See Trial Court Order, 4/15/19. Appellant cannot
now claim that plea counsel was ineffective for the consequence of his own
bad faith acts, i.e., that he never received copies of evidence prohibited from
his view by the trial court.
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