Com. v. Jordan, C. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
CHARLES JORDAN, III :
:
Appellant : No. 1396 WDA 2019
Appeal from the PCRA Order Entered August 13, 2019
In the Court of Common Pleas of Erie County Criminal Division at No(s):
CP-25-CR-0003263-2016
BEFORE: BENDER, P.J.E., OLSON, J., and STEVENS, P.J.E.*
MEMORANDUM BY OLSON, J.: FILED APRIL 14, 2020
Appellant, Charles Jordan, III, appeals from the August 13, 2019 order1
denying his petition filed pursuant to the Post Conviction Relief Act (“PCRA”),
42 Pa.C.S.A. §§ 9541-9546. We affirm.
The PCRA court summarized the procedural history as follows:
On February 27, 2017, [Appellant] entered negotiated guilty pleas
to one count each of manufacture, delivery, or possession with
intent to manufacture or deliver a controlled substance [“PWID”],
illegal possession by a person not to possess firearms, and
receiving stolen property.[2]
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* Former Justice specially assigned to the Superior Court.
1 The order was executed on August 12, 2019, but not entered on the docket
until August 13, 2019. The caption has been corrected to reflect the date the
order was entered.
2 35 P.S. § 780-113(a)(30) and 18 Pa.C.S.A. §§ 6105(a)(1) and 3925(a),
respectively.
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[Appellant] was sentenced on April 13, 2017[,] to an aggregate
period of 8 to 16 years of incarceration. [On April 17, 2017,
Appellant filed a motion for post-sentence relief that the trial court
subsequently denied on May 5, 2017. Appellant] filed [pro se] a
notice of appeal on [June 2, 20173], and on March 27, 2018, the
Pennsylvania Superior Court affirmed the [judgment] of
sentence.[4] [Commonwealth v. Jordan, 2018 WL 1476720
(Pa. Super. March 27, 2018) (unpublished memorandum).]
Among the issues [Appellant] raised on direct appeal was whether
[Appellant] had entered a knowing, voluntary and intelligent guilty
plea. The Superior Court determined [Appellant] had waived the
issue, and absent waiver, the issue was meritless based upon
review of [Appellant’s] written and oral plea colloquies.[]
[Appellant] also raised on direct appeal the issues of the legality
of sentence and the discretionary aspects of sentence for
imposition of consecutive rather than concurrent sentences for
[PWID] and persons not to possess firearms.[5] After careful
review, the Superior Court determined [Appellant’s] sentence was
legal, the challenges to the discretionary aspects of [Appellant’s]
sentence were meritless, and it affirmed the [judgment] of
sentence.[]
Petitioner filed a pro se [PCRA petition] on April 1, 2019.
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3 The record demonstrates Appellant’s pro se notice of appeal was not
docketed until June 8, 2017. However, a review of this notice of appeal reveals
it was dated June 2, 2017, and Appellant certified he deposited the same with
prison authorities on June 2, 2017. Therefore, we deem Appellant’s notice of
appeal filed on June 2, 2017, pursuant to the prisoner mailbox rule.
Commonwealth v. Jones, 700 A.2d 423, 426 (Pa. 1997) (stating, “we are
inclined to accept any reasonably verifiable evidence of the date that the
prisoner deposits the appeal with the prison authorities”).
4We note that Nicole D. Sloane, Esq. represented Appellant at the time he
entered his guilty plea and at his subsequent sentencing. On direct appeal,
Appellant was represented by Jessica A. Fiscus, Esq.
5 For purposes of sentencing, Appellant’s sentence for receiving stolen
property, 18 to 36 months’ incarceration with 6 days credit for time served,
was concurrent to the sentence imposed for PWID.
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PCRA counsel was appointed. By correspondence on April 24,
2019, PCRA counsel noted that [Appellant], in the pro se PCRA
[petition], had requested stand-by counsel. A Grazier[6] hearing
was held on May 29, 2019[,] to clarify [Appellant’s] intentions. At
the hearing, [Appellant] declared he wanted PCRA counsel to
continue to represent his interests.
On June 27, 2019[,] PCRA counsel filed a supplemental PCRA
[petition].
PCRA Court Notice to Dismiss, 7/11/19, at 1-2 (original footnotes and
extraneous capitalization omitted).
On July 11, 2019, the PCRA court provided notice, pursuant to
Pa.R.Crim.P. 907, of its intent to dismiss Appellant’s PCRA petition without a
hearing for failure to state a claim upon which relief may be granted.
Appellant did not file a response. On August 13, 2019, the PCRA court denied
Appellant’s PCRA petition. This appeal followed.7
Appellant raises the following issue for our review:
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6 Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
7 The record demonstrates that counsel for Appellant filed a timely notice of
appeal on September 10, 2019, perfecting Appellant’s appellate rights.
Pursuant to the prisoner mailbox rule, Appellant filed a pro se notice of appeal
on September 11, 2019. The pro se notice of appeal was timestamped and
entered on the docket on September 13, 2019, and forwarded to counsel
pursuant to Pa.R.Crim.P. 576(A)(4). As Appellant’s appeal was already
perfected, no further action was taken or necessary with regard to Appellant’s
pro se notice of appeal.
On September 17, 2019, the PCRA court directed Appellant to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b)
within 21 days. Appellant timely complied. The PCRA court subsequently filed
its Rule 1925(a) opinion relying on the rationale set forth in its notice of intent
to dismiss Appellant’s PCRA petition.
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Whether the [PCRA c]ourt committed legal error and abused its
discretion in failing to grant PCRA relief in the nature of the
provision of leave to withdraw the guilty pleas predicated on
instances of ineffective assistance of counsel relating to
misinformation about the terms of the plea agreement; the
modification of the terms of the plea agreement departing from
the terms as understood by [Appellant]; and the sentencing
exposure and other consequences of the pleas as constituted?
Appellant’s Brief at 2.
Proper appellate review of a PCRA court’s dismissal of a PCRA petition
is limited to the examination of “whether the PCRA court’s determination is
supported by the record and free of legal error.” Commonwealth v. Miller,
102 A.3d 988, 992 (Pa. Super. 2014) (citation omitted). “The PCRA court’s
findings will not be disturbed unless there is no support for the findings in the
certified record.” Commonwealth v. Lawson, 90 A.3d 1, 4 (Pa. Super.
2014) (citations omitted). “This Court grants great deference to the findings
of the PCRA court, and we will not disturb those findings merely because the
record could support a contrary holding.” Commonwealth v. Hickman, 799
A.2d 136, 140 (Pa. Super. 2002) (citation omitted). In contrast, we review
the PCRA court’s legal conclusions de novo. Commonwealth v. Henkel, 90
A.3d 16, 20 (Pa. Super. 2014) (en banc), appeal denied, 101 A.3d 785
(Pa. 2014).
To be eligible for relief based on a claim of ineffective assistance
of counsel, a PCRA petitioner must demonstrate, by a
preponderance of the evidence, that (1) the underlying claim is of
arguable merit; (2) no reasonable basis existed for counsel’s
action or omission; and (3) there is a reasonable probability that
the result of the proceeding would have been different absent such
error. Commonwealth v. Steele, 961 A.2d 786, 796 (Pa. 2008).
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Commonwealth v. Matias, 63 A.3d 807, 810 (Pa. Super. 2013), appeal
denied, 74 A.3d 1030 (Pa. 2013). “The failure to satisfy any one of the prongs
requires rejection of the petitioner's claim.” Commonwealth v. Williams,
141 A.3d 440, 454 (Pa. 2016) (citation omitted). “[T]he law presumes that
counsel was effective and the burden of proving that this presumption is false
rests with the petitioner.” Commonwealth v. Cox, 983 A.3d 666, 678
(Pa. 2009) (citation omitted). “Whether prejudice resulted from the entry of
the guilty plea is not measured by the severity or leniency of the sentence
imposed; prejudice inheres when an accused pleads guilty, thus convicting
himself of a criminal offense, without understanding the significance or
consequences of his action.” Commonwealth v. Zuber, 353 A.2d 441, 445
(Pa. 1976) (citation, original quotation marks, and emphasis omitted).
“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.” Hickman, 799 A.2d
at 141 (citation omitted). “Once the defendant has entered a guilty plea, it is
presumed that he was aware of what he was doing, and the burden of proving
involuntariness is upon him.” Commonwealth v. Willis, 68 A.3d 997, 1002
(Pa. Super. 2013) (citation omitted). The totality of the circumstances
surrounding a guilty plea must be examined to determine if the guilty plea
was entered voluntarily, knowingly, and intelligently. Commonwealth v.
Allen, 732 A.2d 582, 589 (Pa. 1999).
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Here, Appellant argues that plea counsel was ineffective for
misrepresenting the plea agreement to him and for providing erroneous advice
regarding the impact Appellant’s guilty plea to illegal possession of firearms
would have on his sentence. Appellant’s Brief at 5-12. Specifically, Appellant
alleges plea counsel misled him to believe that the plea agreement required
him to plead guilty to only PWID. Id. at 6-7. Appellant contends that at the
plea hearing, he was “blindsided” by the Commonwealth’s statement that
pursuant to the plea agreement Appellant would plead guilty not only to PWID
but also to the illegal possession of firearms and receiving stolen property
charges, as well as forfeit monies seized and a bulletproof vest. Id. at 7.
Appellant avers that when he asked plea counsel at the plea hearing about
the Commonwealth’s description of the plea agreement, he was told, “the
forfeitures and inclusion of the firearms charge were mere formalities for
[Appellant] to plead guilty and would not have any impact [on his sentence.]”
Id. Appellant alleges that, but for plea counsel’s misrepresentation of the plea
agreement and erroneous advice as to the impact the charges would have on
the imposition of consecutive sentences, he would not have accepted the plea
agreement. Id. at 9.
The PCRA court, in dismissing Appellant’s petition without a hearing,
held that Appellant’s claim was previously litigated and, as a result, Appellant
was not eligible for relief under the PCRA. PCRA Court Notice to Dismiss,
7/11/19, at 2. The PCRA court held, “[the Superior Court] previously
addressed the issues of the voluntary, intelligent and knowing nature of
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[Appellant’s] plea and determined the claims surrounding the pleas were
meritless.” Id. at 3.
In order to be eligible for relief under the PCRA, Section 9543 requires
Appellant to plead and prove by a preponderance of the evidence, inter alia,
that his sentence resulted from “[i]neffective assistance of counsel which, in
the circumstances of the particular case, so undermined the truth-determining
process that no reliable adjudication of guilt or innocence could have taken
place” and that the allegation of error had not been previously litigated or
waived. 42 Pa.C.S.A. § 9543(a), (a)(2)(ii), and (a)(3). An issue has been
previously litigated, for purposes of Section 9543, if, inter alia, “the highest
appellate court in which the petitioner could have had review as a matter of
right has ruled on the merits of the issue[.]” Id. at § 9544(a)(2).
Here, a prior panel of this Court held that Appellant waived the claim
that his guilty plea was not knowing, voluntary, and intelligent because he
“failed to challenge the validity of his plea before the trial court in open court
or in a post-sentence motion.” Jordan, 2018 WL 1476720, at *2. The prior
panel of this Court held, in the alternative, that absent waiver, a review of
Appellant’s written and oral plea colloquies refuted his claim of an unknowing,
involuntary, and unintelligent plea. Id.
In the instant petition and appeal, Appellant raises a claim of ineffective
assistance of plea counsel, albeit a claim arguing that plea counsel’s
ineffectiveness induced the underlying claim that Appellant’s guilty plea was
unknowing, involuntary, and unintelligent. While the prior panel of this Court
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did address Appellant’s underlying claim of an unknowing, involuntary, and
unintelligent plea, the Court did not, nor could it, address a claim of ineffective
assistance of plea counsel. Commonwealth v. Holmes, 79 A.3d 562, 566
(Pa. 2013) (stating, “claims of ineffective assistance of counsel will not be
entertained on direct appeal”). Therefore, this claim has not been previously
litigated as defined by Section 9544(a)(2). Commonwealth v. Tedford, 960
A.2d 1, 14 (Pa. 2008) (stating, “while an ineffectiveness claim may fail for the
same reasons that the underlying claim faltered on direct review, the Sixth
Amendment basis for ineffectiveness claims technically creates a separate
issue for review under the PCRA” (citation and original quotation marks
omitted)).
A claim of ineffective assistance of plea counsel succeeds only where a
PCRA petitioner raises an underlying substantive claim of arguable merit.
Commonwealth v. Watson, 835 A.2d 786, 795 (Pa. Super. 2003)
(requiring, inter alia, underlying claim to be of arguable merit to overcome
presumption of competence). “Counsel will not be deemed ineffective for
failing to raise a meritless claim.” Commonwealth v. Spotz, 896 A.2d 1191,
1210 (Pa. 2006). Because it is obvious based upon a review of Appellant’s
PCRA petition and the record that his ineffectiveness claim is without arguable
merit, we do not need to remand the instant case for further analysis by the
PCRA court. Tedford, 960 A.2d at 14 (holding remand for further analysis by
PCRA court unnecessary when claim is obviously deficient).
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In his PCRA petition, Appellant alleges that plea counsel “coerced and
induced him to sign the plea agreement as offered at the plea hearing.”
Appellant’s Supplemental PCRA Petition, 6/27/19, at 2. A review of the plea
hearing transcript belies this allegation. At the plea hearing, Appellant
understood, inter alia, that the trial court was not bound to accept the terms
of any plea bargain and that Appellant had ten days from the date of
sentencing to file a post-sentence motion challenging his guilty plea. N.T.,
2/27/17, at 4-7. Appellant understood the charges to which he was pleading
guilty, including the charge of illegal possession of a firearm. Id. at 7, 10.
Appellant also understood the potential maximum sentence that could be
imposed on each charge was ten years’ incarceration, and the total aggregate
maximum sentence that could be imposed if all sentences were to run
consecutively was thirty year’s incarceration. Id. at 8. When asked how
Appellant pleaded with regard to the illegal possession of firearms charge,
appellant responded, “Guilty.” Id. at 10. Appellant reviewed the plea
agreement in writing, including the fact that he was pleading guilty to illegal
possession of firearms, and signed the written colloquy to indicate that he
understood and agreed with his guilty plea. Id. at 11-12. In signing the
written colloquy, Appellant agreed that he was entering his guilty plea without
any pressure or promise that was not reflected in the written colloquy.
Defendant’s Statement of Understanding of Rights prior to Guilty/No Contest
Plea, 2/27/17. At no time during the plea hearing did Appellant raise an issue
challenging the terms of the plea agreement, as stated by the Commonwealth
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in open court or as documented in his written colloquy, as being different from
what he understood the terms to be based upon information provided by plea
counsel.8 N.T., 2/27/17, at 5-12. Appellant failed to cite any record evidence
demonstrating that plea counsel made any false statements to Appellant at
the plea hearing, that his understanding of the plea agreement was any
different than the offer stated on the record by the Commonwealth or
documented in his written colloquy and to which Appellant agreed, or that the
plea agreement called for the sentences to run concurrently. Id. at 6-12. In
fact, the only substantive statement plea counsel made with regard to the plea
agreement on the record was, “Just for the record, Your Honor, [the attorney
for the Commonwealth] was the prosecutor in this case and he was kind
enough to reduce the amount of cocaine, and that’s why the offense gravity
score has been reduced from an offense gravity score of eleven to ten. This
was part of a generous plea bargain that [the Commonwealth] negotiated.”
Id. at 8.
At the time of sentencing, Appellant was again informed, inter alia, that
he had the right to file a post-sentence motion challenging his guilty plea
within ten days of sentencing and he signed a written statement that he
understood those rights. N.T., 4/13/17, at 2, 4. A review of the record
demonstrates that Appellant failed to raise, by way of his post-sentence
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8 In his pro se PCRA petition, Appellant states, “[t]his not being [Appellant’s]
first guilty plea hearing[,] he is somewhat familiar with his participation and
its proceedings.” Appellant’s Pro Se PCRA Petition, 4/1/19, at 3.
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motion, the claim that his guilty plea was unknowing, involuntary, and
unintelligent because of plea counsel’s misrepresentation or erroneous
advice.9 See Appellant’s Motion for Post-Sentence Relief, 4/17/17, at
unnumbered pages 1-2.
A review of Appellant’s pro se PCRA petition and counseled supplemental
PCRA petition reveals that while Appellant may have harbored a different
subjective impression of the terms of the plea agreement, he made no effort
at the time he entered his plea, prior to sentencing, or in a post-sentence
motion to assert that the plea agreement differed from what was placed on
the record at the plea hearing. 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).
As such, Appellant’s PCRA petition failed to raise a genuine issue of material
fact, and the PCRA court was not required to hold an evidentiary hearing.
Pa.R.Crim.P. 907(2). Based upon the record before us, we hold that
Appellant’s claim of ineffective assistance of plea counsel failed to assert an
underlying claim of arguable merit. Consequently, the PCRA court did not err
in denying Appellant’s petition.
Order affirmed.
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9 Although the post-sentence motion was filed by plea counsel, a review of the
record demonstrates that Appellant is well-versed in filing his own pro se
documents setting forth his issues.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/14/2020
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