Com. v. Posey, A. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
AJANI LEE POSEY :
:
Appellant : No. 946 MDA 2019
Appeal from the PCRA Order Entered May 22, 2019
In the Court of Common Pleas of Dauphin County
Criminal Division at No(s): CP-22-CR-0000322-2017
BEFORE: PANELLA, P.J., STABILE, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY PANELLA, P.J.: FILED: APRIL 14, 2020
Ajani L. Posey appeals, pro se, from the order of May 20, 2019, which
dismissed, without a hearing, his first petition brought under the Post
Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. On appeal,
Appellant claims he received ineffective assistance of plea counsel. 1 For the
reasons discussed below, we affirm.2
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1 On appeal, Appellant also appears to assert PCRA counsel was ineffective for
failing to raise the claim plea counsel was ineffective for not filing a motion to
suppress. However, Appellant did not include this claim in his Rule 1925(b)
Statement. See Appellant[‘s] Pro Se 1925(b) Statement, 7/01/19, at
unnumbered pages 1-4. Therefore, he waived the claim. See Pa.R.A.P.
1925(b)(4)(vii); see also Commonwealth v. Lord, 719 A.2d 306, 308 (Pa.
1998), superseded by rule on other grounds as stated in Commonwealth v.
Burton, 973 A.2d 428, 431 (Pa. Super. 2009).
2 The Commonwealth did not file a brief in this matter.
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On August 30, 2017, the Commonwealth filed a criminal information
charging Appellant with one count each of criminal attempt — homicide,
robbery, aggravated assault, and burglary.3 The charges arose out of a
December 19, 2016 home invasion.
Appellant, who was involved in a dispute with the victim’s stepson,
kicked open the door of the victim’s residence, while brandishing a knife. He
then demanded the victim’s money. When the victim tried to flee into a
bedroom, Appellant kicked the bedroom door open and held the knife to the
victim’s throat. The victim grabbed the knife and, during the ensuing struggle,
the knife cut the victim’s hands. Appellant then fled the scene.
On September 6, 2017, Appellant entered an open guilty plea to one
count each of aggravated assault, robbery, and burglary.4 In return, the
Commonwealth dropped the most serious charge, attempted homicide. On
October 11, 2017, the trial court sentenced Appellant to an aggregate term of
5½ to 20 years’ imprisonment. Appellant did not file any post-sentence
motions or a direct appeal.
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3 18 Pa.C.S.A. §§ 901(a), 3701(a)(1)(ii), 2702(a)(1), and 3502(a)(1),
respectively.
4 The Commonwealth had offered a negotiated guilty plea, which Appellant
rejected.
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On July 16, 2018, Appellant, acting pro se, filed the instant, timely PCRA
petition. The PCRA court subsequently appointed counsel. On November 17,
2018, counsel filed a petition to withdraw and a Turner/Finley5 “no merit”
letter. On March 6, 2019, the PCRA court granted counsel’s motion to
withdraw and issued notice of its intent to dismiss the petition pursuant to
Pennsylvania Rule of Criminal Procedure 907(1). Appellant, after being
granted an extension of time, filed a response on May 6, 2019. The court
denied Appellant’s PCRA petition.
Appellant subsequently filed the instant, timely appeal. In response,
the PCRA court directed Appellant to file a concise statement of errors
complained of on appeal. See Pa.R.A.P. 1925(b). Appellant filed a timely
Rule 1925(b) statement on July 1, 2019. See id. Ultimately, the court issued
a statement adopting its Rule 907 notice as its opinion. See Pa.R.A.P.
1925(a).
Our standard of review for an order denying PCRA relief is well settled:
[t]his Court’s standard of review regarding a PCRA court’s order
is whether the determination of the PCRA court is supported by
the evidence of record and is free of legal error. 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.
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5 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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Commonwealth v. Carter, 21 A.3d 680, 682 (Pa. Super. 2011) (citations
and quotation marks omitted).
Here, Appellant claims he received ineffective assistance of plea counsel.
While it is somewhat difficult to parse the specifics of his claim because of
Appellant’s wholly inadequate two-page brief, this contention appears rooted
in his belief that the evidence was insufficient to sustain a conviction for
aggravated assault. Appellant bases this theory on the testimony at the
preliminary hearing that he claims failed to prove serious bodily injury, the
fact the Commonwealth never recovered the knife used in the robbery, and
that the Commonwealth did not submit any medical records into evidence at
the preliminary hearing. Therefore, he believes counsel wrongly advised him
to plead guilty to aggravated assault. He also claims counsel refused his
repeated requests to provide him with a copy of the preliminary hearing
transcript before he entered into the guilty plea.6
“A criminal defendant has the right to effective counsel during a plea
process as well as during trial.” Commonwealth v. Rathfon, 899 A.2d 365,
369 (Pa. Super. 2006) (citation omitted). Further, “[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.” Commonwealth v. Hickman, 799 A.2d
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6Appellant does not challenge counsel’s stewardship with respect to his guilty
plea to the charges of robbery and burglary.
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136, 141 (Pa. Super. 2002) (citation omitted). Also, “[w]here the defendant
enters his plea on the advice of counsel, the voluntariness of the plea depends
upon whether counsel’s advice was within the range of competence demanded
of attorneys in criminal cases.” Id. (internal quotation marks and citations
omitted).
We presume counsel is effective, and Appellant bears the burden to
prove otherwise. See Commonwealth v. Bennett, 57 A.3d 1185, 1195 (Pa.
2012). The test for ineffective assistance of counsel is the same under both
the Federal and Pennsylvania Constitutions. See Strickland v. Washington,
466 U.S. 668, 687-88 (1984); Commonwealth v. Jones, 815 A.2d 598, 611
(Pa. 2002). Appellant must demonstrate: (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 proceedings would have been different. See Commonwealth
v. Solano, 129 A.3d 1156, 1162-63 (Pa. 2015). A failure to satisfy any prong
of the test for ineffectiveness will require rejection of the claim. See Jones,
815 A.2d at 611. Where, as here, Appellant pleaded guilty, in order to satisfy
the prejudice requirement, he 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.” Rathfon, 899 A.2d at 370 (citation
omitted).
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This Court has held where the record clearly shows the court conducted
a thorough plea colloquy and the defendant understood his rights and the
nature of the charges against him, the plea is voluntary. See
Commonwealth v. McCauley, 797 A.2d 920, 922 (Pa. Super. 2001). In
examining whether the defendant understood the nature and consequences
of his plea, we look to the totality of the circumstances. See id. At a
minimum, the trial court must inquire into the following six areas:
(1) Does the defendant understand the nature of the charges to
which he is pleading [nolo contendere]?
(2) Is there a factual basis for the plea?
(3) Does the defendant understand that he has a right to trial
by jury?
(4) Does the defendant understand that he is presumed
innocent until he is found guilty?
(5) Is the defendant aware of the permissible ranges of
sentences and/or fines for the offenses charged?
(6) Is the defendant aware that the judge is not bound by the
terms of any plea agreement tendered unless the judge
accepts such agreement?
Id. (citation omitted); see also Pa.R.Crim.P. 590, Comment.
Defense counsel or the attorney for the Commonwealth, as permitted
by the court, may conduct this examination. See Pa.R.Crim.P. 590,
Comment. Moreover, the examination may consist of both a written colloquy
the defendant read, completed, and signed, and made a part of the record;
and an on-the-record oral examination. See id.
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Here, Appellant signed a written plea colloquy and engaged in an oral
colloquy. See Written Guilty Plea Colloquy, 9/06/17, at unnumbered page 3;
N.T. Plea Hearing, 9/06/17, at 1-7. We note Appellant did not contest any of
the underlying facts as enunciated by the assistant district attorney, including
the facts he threatened the victim with the knife, slashed at the victim, and
the victim sustained injury while attempting to protect himself from the knife-
wielding Appellant. See N.T. Plea Hearing, at 4-5. Appellant specifically
stated he understood this evidence was sufficient to constitute the crime of
aggravated assault. Id. at 6.
In the written plea colloquy, Appellant acknowledged he had read the
charges against him, understood what he was pleading guilty to, and had fully
discussed the case with counsel. Written Guilty Plea Colloquy, at unnumbered
page 2. He averred he was pleading guilty of his own free will and was
satisfied with counsel’s representation. See id.
During the plea hearing, Appellant never claimed he had asked for the
notes of testimony from the preliminary hearing and counsel refused to
provide them. He also never stated he believed the evidence was insufficient
to sustain the aggravated assault charge.
Sentencing took place over one month after the entry of the guilty plea.
At no point prior to or during sentencing did Appellant express any
dissatisfaction with counsel or indicate any wish to withdraw his plea.
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Appellant did not file a direct appeal. It was not until approximately
nine months later that Appellant expressed dissatisfaction with part of his
guilty plea. He still has not stated he wishes to withdraw his plea, but instead
seeks either a reduction in sentence or the withdrawal of the aggravated
assault charge. Appellant’s Brief, at unnumbered page 2. Further, at no point,
including during the instant PCRA proceedings, has Appellant claimed he was
actually innocent of the charges or, but for counsel’s inadequate
representation, he would have elected to proceed to trial.
The statements made during a plea colloquy bind a criminal defendant.
See Commonwealth v. Muhammad, 794 A.2d 378, 384 (Pa. Super. 2002).
As a result, a defendant cannot assert grounds for withdrawing the plea that
contradict statements made at that time. See Commonwealth v. Stork,
737 A.2d 789, 790-91 (Pa. Super. 1999). Further, “[t]he law does not require
that appellant be pleased with the outcome of his decision to enter a plea of
guilty: ‘All that is required is that [appellant’s] decision to plead guilty be
knowingly, voluntarily and intelligently made.’” Commonwealth v. Yager,
685 A.2d 1000, 1004 (Pa. Super. 1996) (en banc) (citation omitted). Here,
Appellant has not shown that his decision to enter the plea to aggravated
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assault was involuntary.7 He has therefore failed to prove prejudice. Thus,
his claims of ineffective assistance of plea counsel lack merit.
Accordingly, for the reasons discussed above, we affirm the PCRA court’s
dismissal of Appellant’s PCRA petition without a hearing.
Order affirmed.
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7 This Court has reviewed the record in this matter, including the notes of
testimony from the preliminary hearing. Appellant’s claim of insufficiency
seems to be based in its entirety on a mistaken belief that the Commonwealth
was required to produce all of the evidence it would have entered at trial at
the preliminary hearing. He also misapprehends the nature of the charge of
aggravated assault, believing the Commonwealth had to prove actual serious
physical injury rather than an attempt to cause serious physical injury. See
18 Pa.C.S.A. § 2702(a)(1). Moreover, the testimony at the preliminary
hearing clearly established Appellant brandished a knife at the victim and held
the knife to his throat so tightly the victim believed it had cut his throat. The
victim also testified the cuts to his hand were severe enough that, at the time
of the preliminary hearing, approximately one month after the incident, he
was still undergoing physical therapy and it was not clear he would regain full
use of one hand. See generally, N.T. Preliminary Hearing, 1/19/17, at 7-37.
Had the victim testified consistently with his preliminary hearing testimony at
trial, the evidence would have been sufficient to sustain a conviction for
aggravated assault. See Commonwealth v. Walls, 950 A.2d 1028, 1032
(Pa. Super. 2009) (holding evidence defendant stabbed victim causing cuts,
scratches, and lacerations sufficient to sustain conviction for aggravated
assault), appeal denied, 991 A.2d 313 (Pa. 2010); Commonwealth v.
Matthews, 870 A.2d 924, 933 (Pa. Super. 2005) (en banc) (concluding act
of placing weapon to victim’s throat and making threats to kill him, sufficient
to sustain conviction for aggravated assault even though victim was not
actually injured). Therefore, because the evidence would have been sufficient
to sustain a conviction for aggravated assault counsel was not ineffective in
advising Appellant to plead guilty to the charge.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 04/14/2020
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