Com. v. McLaurin, D. ( 2020 )

J-S49008-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DAVON ANTONE MCLAURIN :
:
Appellant : No. 361 WDA 2020
Appeal from the PCRA Order Entered February 4, 2020
In the Court of Common Pleas of Erie County Criminal Division at No(s):
CP-25-CR-0002052-2017
BEFORE: OLSON, J., DUBOW, J., and STEVENS, P.J.E.*
MEMORANDUM BY OLSON, J.: FILED DECEMBER 17, 2020
Appellant, Davon Antone McLaurin, appeals from the order entered on
February 4, 2020, which denied his petition filed under the Post-Conviction
Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. We affirm.
In Appellant’s direct appeal, we summarized the underlying facts of this
case:
On April 30, 2017, at 1:43 a.m., Detective Michael Hertel of
the Erie Police Department was dispatched to the Kwik Fill
store, located on the 1100 block of East Lake Road, for
multiple 911 calls reporting shots fired in the area. Detective
Hertel investigated the incident, studying the scene
subsequent to the dispatch call and observing the physical
evidence of gun shell casings, blood, and finger/palm prints.
Detective Hertel also received a surveillance video from the
Kwik Fill store. . . . The video depicts a male, later identified
as Markcail Williams, approach a group of people, including
[Appellant], and fire a gun multiple times. [Appellant] then
____________________________________________
* Former Justice specially assigned to the Superior Court.
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fires back, “shooting at Markcail Williams, shooting at or
strik[ing] the Chevy Malibu in the parking lot with three
occupants, and also striking or shooting Dominique Selby’s
vehicle, the red GMC Terrain, while she was present inside
the vehicle,” and firing into an occupied home. N.T.
Preliminary Hearing, 7/3/17, at 27.
On October 3, 2017, [Appellant] entered an open guilty plea
to [recklessly endangering another person (“REAP”)] (Count
6), discharge of a firearm into occupied structure (Count 11),
and person not to possess firearms (Count 13). On November
20, 2017, [Appellant] was sentenced to 12-24 months’
incarceration for Count 6; 42-84 months’ incarceration for
Count 11, to run concurrently with Count 6; and 60-120
months’ incarceration for Count 13, to run consecutively to
Count 11 – for an aggregate sentence of 102-204 months’
incarceration.
Commonwealth v. McLaurin, 200 A.3d 533 (Pa. Super. 2018) (unpublished
memorandum) at 1-3 (footnotes omitted).
We affirmed Appellant’s judgment of sentence on October 3, 2018. Id.
at 1-7.
Appellant filed a timely, pro se PCRA petition on August 19, 2019.
Within the petition, Appellant claimed that his plea counsel provided him with
ineffective assistance and that counsel caused him to enter an involuntary and
unknowing guilty plea. Specifically, Appellant claimed that he pleaded guilty
because his plea counsel promised him that he would receive a sentence of
four to eight years in prison. Appellant’s Pro Se PCRA Petition, 8/19/19, at 3.
However, Appellant claimed, he did not receive the promised sentence of four
to eight years in prison; instead, the trial court sentenced Appellant to serve
a term of eight-and-one-half to 17 years in prison. Id. Appellant thus
requested that the PCRA court permit him to withdraw his plea. Id. at 3-6.
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The PCRA court appointed counsel to represent Appellant during the
proceedings and counsel filed an amended petition on Appellant’s behalf.
Within the amended petition, counsel restated the claim that Appellant raised
in his pro se petition. See Amended PCRA Petition, 9/18/19, at 1-3.
On January 8, 2020, the PCRA court provided Appellant with notice that
it intended to dismiss his petition in 20 days, without holding a hearing. PCRA
Court Order, 1/8/20, at 1-5; see also Pa.R.Crim.P. 907(1). The PCRA court
finally dismissed Appellant’s petition on February 4, 2020 and Appellant filed
a timely notice of appeal. Appellant raises one claim on appeal:
Whether [Appellant’s] guilty pleas were invalidated given the
ineffective assistance of counsel due to counsel’s conduct that
induced the entry of guilty pleas and misrepresentations as
to the sentencing exposure including assertions of a
guaranteed sentence in exchange for the entry of the guilty
pleas?
Appellant’s Brief at 2 (some capitalization omitted).
“We review a ruling by the PCRA court to determine whether it is
supported by the record and is free of legal error. Our standard of review of
a PCRA court's legal conclusions is de novo.” Commonwealth v. Cousar,
154 A.3d 287, 296 (Pa. 2017) (citations omitted).
To be eligible for relief under the PCRA, the petitioner must plead and
prove by a preponderance of the evidence that his conviction or sentence
resulted from “one or more” of the seven, specifically enumerated
circumstances listed in 42 Pa.C.S.A. § 9543(a)(2). One of these statutorily
enumerated circumstances is the “[i]neffective assistance of counsel which, in
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the circumstances of the particular case, so undermined the truth-determining
process that no reliable adjudication of guilt or innocence could have taken
place.” 42 Pa.C.S.A. § 9543(a)(2)(ii).
Counsel is presumed to be effective and “the burden of demonstrating
ineffectiveness rests on [A]ppellant.” Commonwealth v. Rivera, 10 A.3d
1276, 1279 (Pa. Super. 2010). To satisfy this burden, Appellant must plead
and prove by a preponderance of the evidence that:
(1) his underlying claim is of arguable merit; (2) the
particular course of conduct pursued by counsel did not have
some reasonable basis designed to effectuate his interests;
and, (3) but for counsel’s ineffectiveness, there is a
reasonable probability that the outcome of the challenged
proceedings would have been different.
Commonwealth v. Fulton, 830 A.2d 567, 572 (Pa. 2003). As this Court has
explained:
A claim has arguable merit where the factual averments, if
accurate, could establish cause for relief. See
Commonwealth v. Jones, 876 A.2d 380, 385 (Pa. 2005)
(“if a petitioner raises allegations, which, even if accepted as
true, do not establish the underlying claim . . . , he or she
will have failed to establish the arguable merit prong related
to the claim”). Whether the facts rise to the level of arguable
merit is a legal determination.
The test for deciding whether counsel had a reasonable basis
for his action or inaction is whether no competent counsel
would have chosen that action or inaction, or, the alternative,
not chosen, offered a significantly greater potential chance of
success. Counsel’s decisions will be considered reasonable if
they effectuated his client's interests. We do not employ a
hindsight analysis in comparing trial counsel's actions with
other efforts he may have taken.
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Prejudice is established if there is a reasonable probability
that, but for counsel’s errors, the result of the proceeding
would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the
outcome.
Commonwealth v. Stewart, 84 A.3d 701, 707 (Pa. Super. 2013) (some
quotations and citations omitted). “A failure to satisfy any prong of the test
for ineffectiveness will require rejection of the claim.” Id.“A criminal defendant has the right to effective counsel during a plea
process as well as during trial.” Commonwealth v. Hickman, 799 A.2d 136,
141 (Pa. Super. 2002). Yet, where the ineffectiveness of counsel is claimed
in connection with the entry of a guilty plea, a petitioner may only obtain relief
where “counsel’s deficient stewardship resulted in a manifest injustice, for
example, by facilitating [the] entry of an unknowing, involuntary, or
unintelligent plea.” Commonwealth v. Moser, 921 A.2d 526, 530 n.3 (Pa.
Super. 2007) (en banc) (citations and quotations omitted). As we have
explained:
once a defendant has entered a plea of guilty, it is presumed
that he was aware of what he was doing, and the burden of
proving involuntariness is upon him. Therefore, where the
record clearly demonstrates that a guilty plea colloquy was
conducted, during which it became evident that the
defendant understood the nature of the charges against him,
the voluntariness of the plea is established.
Commonwealth v. Stork, 737 A.2d 789, 791 (Pa. Super. 1999) (quotations,
citations, and corrections omitted), quoting Commonwealth v. Myers, 642
A.2d 1103, 1105 (Pa. Super. 1994). “To prove prejudice, [an] appellant must
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prove he would not have [pleaded] guilty and would have achieved a better
outcome at trial.” Commonwealth v. Fears, 86 A.3d 795, 807 (Pa. 2014)
(quotations and citations omitted).
Moreover, “[a] defendant is bound by the statements which he makes
during his plea colloquy.” Commonwealth v. Lewis, 708 A.2d 497, 502 (Pa.
Super. 1998) (citation omitted). “A defendant may not assert grounds for
withdrawing the plea that contradict statements made when he pled guilty.”
Id.Appellant claims that his plea counsel provided him with ineffective
assistance because counsel “guaranteed” Appellant that, if Appellant pleaded
guilty, Appellant would receive a sentence of four to eight years in prison.
Appellant’s Brief at 4. This claim fails.
Prior to entering his plea, Appellant signed a “statement of
understanding of rights.” Within this statement, Appellant acknowledged that
he understood the following:
 “I desire to plead guilty[] in this matter; [] my plea is made
voluntarily by me without any pressure or promise not reflected
on this paper, and [] I fully understand all of my rights in choosing
to plead guilty[;]”
 “that the maximum sentence for the crime[s] to which I am
pleading guilty . . . is Count 6: [] 2 years, Count 11: [] 7 years,
Count 13: [] 10 years. TOTAL: [] 19 YEARS;”
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 “that any plea bargain in my case is set forth here and that there
has been no other bargain and no other promise or threat of any
kind to induce me to plead guilty[]. The only plea bargain in my
case is [I] will plead guilty to Counts 6, 11, & 13. In
exchange, the Commonwealth will nolle pros remaining
counts, with costs on [Appellant];” and,
 “I understand that the Judge is not bound by the terms of any
plea bargain unless the judge chooses to accept it. The Judge will
announce his/her decision at the conclusion of the plea colloquy
which follows my signing this paper. If the Commonwealth agrees
to make a sentencing recommendation on my behalf, the Judge
will not be bound by this recommendation and I understand that
I will not be permitted to withdraw my guilty[] plea if this should
occur.”
Appellant’s Statement of Understanding of Rights Prior to Guilty/No Contest
Plea, 10/3/17, at 1 (emphasis in original).
Further, during the guilty plea hearing, Appellant testified that he
understood the terms of the plea agreement to be as follows: “[Appellant will]
plead guilty to Counts 11 and 13 [sic], and in exchange, the Commonwealth
will withdraw the remaining counts with costs on [Appellant].” N.T. Guilty
Plea Hearing, 10/3/17, at 8. During the hearing, Appellant also acknowledged
that he was entering an open plea and that, by pleading guilty, he was
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exposing himself to a “maximum possible sentence” of 19 years in prison. Id.
at 8-9. Finally, Appellant testified that no one “pressured [him] or forc[ed
him] or promis[ed him] anything to enter this plea” and that no one “promised
[him] any type of sentence in [his] case.” Id. at 12 and 13.
On appeal, Appellant essentially claims that he was lying during the
guilty plea hearing. Specifically, Appellant claims that – contrary to his
testimony at the guilty plea hearing, where he testified that no one “promised
[him] any type of sentence in [his] case” – his plea counsel, in fact, promised
him that, if he pleaded guilty, he would receive a sentence of four to eight
years in prison. Appellant’s Brief at 4; see also Appellant’s Pro Se PCRA
Petition, 8/19/19, at 3. However, under our case law, Appellant is bound by
the statements he made in open court, under oath, at the time he entered his
guilty plea, and he cannot assert later that he lied while under oath, even if
he avers that counsel induced the lies. Commonwealth v. Pollard, 832 A.2d
517, 523 (Pa. Super. 2003). Thus, Appellant’s claim on appeal necessarily
fails.
Order affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
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Date: 12/17/2020
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