Com. v. Wilkerson, O. ( 2020 )

J-S27024-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
OTIS WILKERSON, :
:
Appellant : No. 1579 EDA 2019
Appeal from the PCRA Order Entered May 9, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0510891-2006
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
OTIS WILKERSON, :
:
Appellant : No. 1581 EDA 2019
Appeal from the PCRA Order Entered May 9, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0808421-2006
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
OTIS WILKERSON, :
:
Appellant : No. 1582 EDA 2019
Appeal from the PCRA Order Entered May 9, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0009610-2015
J-S27024-20
BEFORE: SHOGAN, J., McCAFFERY, J., and STEVENS, P.J.E.*
MEMORANDUM BY McCAFFERY, J.: FILED SEPTEMBER 14, 2020
In these consolidated cases,1 Otis Wilkerson (Appellant) appeals from
the orders entered in the Philadelphia County Court of Common Pleas, denying
his timely petitions filed pursuant to the Post Conviction Relief Act2 (PCRA),
seeking collateral relief from his guilty plea to charges of, inter alia, rape and
involuntary deviate sexual intercourse (IDSI)3 in three separate cases. On
appeal, Appellant contends the PCRA court erred in dismissing his petitions
without first conducting an evidentiary hearing on his claim that plea counsel
rendered ineffective assistance. We affirm.
The relevant factual and procedural history underlying these appeals is
as follows. On February 28, 2011, Appellant entered a guilty plea in three
separate cases — Docket Nos. 1891-2006, 8421-2006, and 873-2009 —
arising from “three separate occasions in which he took young women against
their will to remote locations, raped them and, in two instances, stole from
them.” Commonwealth v. Wilkerson, 1227 EDA 2016 (unpub. memo. at
1) (Pa. Super. 2018) (citation omitted) (direct appeal following remand). The
trial court sentenced him to an aggregate term of 40 to 80 years’
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* Former Justice specially assigned to the Superior Court.
1This Court consolidated these appeals sua sponte by order entered February
20, 2020. See Order, 2/20/20.
2 42 Pa.C.S. §§ 9541-9546.
3 18 Pa.C.S. §§ 3121(a)(1), 3123(a)(1).
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imprisonment. On direct appeal, this Court vacated the judgments of
sentence after concluding Appellant’s guilty plea was involuntarily entered
because he was not advised his sentences could be imposed to run
consecutively. Commonwealth v. Wilkerson, 3059 EDA 2011 (unpub.
memo. at 4) (Pa. Super. 2013). The Commonwealth’s petition for allowance
of appeal was denied by the Pennsylvania Supreme Court. Commonwealth
v. Wilkerson, 629 EAL 2013 (Pa. 2014).
Upon remand, the charges at Docket No. 873-2009 were nolle prossed
by the Commonwealth. See PCRA Ct. Op. 9/17/19 at 2 n.1. Appellant chose
to proceed to trial on the remaining charges. However, prior to trial, Appellant
was arrested and charged at Docket No. 9610-2015 with rape and related
offenses for his attack on another victim in 2005.4 That case was subsequently
“consolidated with the two remaining bills of information” at Docket Nos.
1891-2006 and 8421-2006. Id. at 2.
Although trial was originally scheduled for July 13, 2015, Appellant
requested a continuance so that he could secure private counsel. Wilkerson,
1227 EDA 2016 (unpub. memo. at 2). The following day, W. Fred Harrison,
Jr., Esquire, entered his appearance for Appellant, and the court continued
trial until November 17, 2015. Id.
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4 The trial court explained that Appellant was originally arrested for this
incident in January of 2006, but the charges were withdrawn several months
later when the victim failed to appear. PCRA Ct. Op. at 2 n.2. The
Commonwealth reinstated the charges on July 21, 2015. Id.
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On November 17, 2015, Appellant informed the trial court that he was
“ready to proceed with trial,” and a jury panel was sworn. N.T., 11/17/15, at
11. However, shortly thereafter, Appellant requested a short recess so that
he could talk with his sister. See id. at 12. When Appellant returned, Attorney
Harrison informed the court that Appellant decided to enter an open guilty
plea. Id. Because Appellant had filed a pretrial motion to dismiss the charges
based on a violation of the speedy trial rule, see Pa.R.Crim.P. 600, the
Commonwealth summarized the procedural history of the case prior to the
entry of the plea. See id. at 13-18. The court then denied the Rule 600
motion.
On that same day, Appellant proceeded to enter a guilty plea to the
following charges: (1) rape, IDSI, and robbery5 at Docket No. 1891-2006;
(2) rape, IDSI, and indecent assault6 at Docket No. 8421-2006; and (3), rape,
IDSI, robbery, aggravated assault,7 and unlawful contact with a minor8 at
Docket 9610-2015. The trial court sentenced Appellant to an aggregate term
of 35 to 70 years’ imprisonment.9 Specifically, at Docket No. 9610-2015, the
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5 18 Pa.C.S. § 3701(a)(1)(i).
6 18 Pa.C.S. § 3126(a)(1).
7 18 Pa.C.S. § 2702(a)(1).
8 18 Pa.C.S. § 6318(a)(1).
9We note that at the conclusion of the sentencing hearing, the Commonwealth
notified Appellant of his registration requirements as a sexual violent predator
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court imposed consecutive sentences of 10 to 20 years’ imprisonment for the
charges of rape, robbery and IDSI, and a consecutive term of five to 10 years’
imprisonment for unlawful contact with a minor. All of the other sentences
were imposed to run concurrently.10 This Court affirmed the judgment of
sentence on direct appeal. See Wilkerson, 1227 EDA 2016.
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(SVP) under the then-applicable registration act. See N.T., 11/17/15, at 43-
46. The Commonwealth stated that Appellant was determined to be an SVP
prior to his first sentencing hearing, and did not contest that conclusion. Id.
at 43. Moreover, on appeal, he does not challenge his status as an SVP or his
registration requirements under the now-applicable Sex Offender Registration
and Notification Act (SORNA II), 42 Pa.C.S. §§ 9799.10-9799.71. See
Commonwealth v. Butler, 226 A.3d 972, 976 (Pa. 2020) (holding the
registration, notification and counseling requirements of Pennsylvania’s sexual
offender notification and registration act “do not constitute criminal
punishment and therefore the procedure for designating individuals as
[sexually violent predators] under [42 Pa.C.S. §] 9799.24(e)(3) is . . .
constitutionally permissible”); Commonwealth v. Lacombe, ___ A.3d ___,
2020 WL 4150283 (Pa. 2020) (holding Subchapter I of SORNA II, which
applies to sexual offenders whose crimes occurred between April 1996 and
December 2012, “is nonpunitive and does not violate the constitutional
prohibition against ex post facto laws”).
10 At Docket No. 1891-2006, the court imposed consecutive sentences of 10
to 20 years’ imprisonment for each offense. Similarly, at Docket No. 9610-
2006, the court imposed consecutives sentences of 10 to 20 years’
imprisonment for rape and IDSI, and a consecutive term of two and one-half
to five years’ imprisonment for indecent assault. However, the aggregate
sentences at both of those dockets run concurrently to the aggregate 35 to
70 year term at Docket No. 9610-2015.
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On April 30, 2018, Appellant filed a timely, pro se PCRA petition,
asserting counsel’s ineffectiveness caused him to enter an involuntary plea.11
New counsel was appointed, and on September 18, 2019, filed an amended
petition12 and accompanying memorandum of law, claiming plea counsel was
ineffective for failing to adequately prepare for trial and incorrectly informing
Appellant he could appeal from the denial of his Rule 600 motion even if he
pled guilty. See Appellant’s Memorandum of Law, 9/18/18, at 7
(unpaginated). Counsel specifically requested an evidentiary hearing, and
attached to his amended petition certifications as to the proposed witnesses’
testimony. On March 19, 2019, the PCRA court issued notice of its intent to
dismiss the petition without first conducting an evidentiary hearing pursuant
to Pa.R.Crim.P. 907. Appellant filed a pro se response on April 11, 2019.
However, on May 9th, the PCRA court entered an order at each trial court
docket dismissing Appellant’s petition. These timely appeals follow.13
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11Appellant listed all three trial court docket numbers on his pro se petition,
which appears to have been simply photocopied and placed in each certified
record.
12We note that while counsel listed all three docket numbers on the amended
petition, the time stamp on each document indicates a separate document
was filed at each docket number.
13We note that Appellant complied with the requirements of Commonwealth
v. Walker, 185 A.3d 969 (Pa. 2018), and filed separate notices of appeal at
each trial docket number. Further, Appellant filed a timely statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b) in response to the
PCRA court’s order.
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Appellant’s sole claim raised on appeal is that the PCRA court erred in
dismissing his petition without first conducting an evidentiary hearing. See
Appellant’s Brief at 13. Appellant maintains:
[I]t was counsel’s ineffectiveness that induced [ ] Appellant’s plea.
It was a fact that trial counsel was not prepared for trial.
[Counsel] failed to discuss the case with his client prior to the start
of trial. Most significantly, counsel gave [ ] Appellant incorrect
information regarding whether he could appeal the Rule 600 issue.
Counsel failed to investigate, contact witnesses or obtain any
evidence that could have enabled [ ] Appellant to present a
defense.
Id. at 17. He insists the PCRA court was required to conduct a hearing to
determine the “material issues of fact” he raised in his petition. Id. at 18.
Our review of an order denying a PCRA petition is well-settled: “we
must determine whether the PCRA court’s order ‘is supported by the record
and free of legal error.’” Commonwealth v. Johnson, 139 A.3d 1257, 1272
(Pa. 2016) (citation omitted). Moreover, we emphasize:
“[A] petitioner is not entitled to a PCRA hearing as a matter of
right; the PCRA court can decline to hold a hearing if there is no
genuine issue concerning any material fact and the petitioner is
not entitled to post-conviction collateral relief, and no purpose
would be served by any further proceedings.” “A reviewing court
on appeal must examine each of the issues raised in the PCRA
petition in light of the record in order to determine whether the
PCRA court erred in concluding that there were no genuine issues
of material fact and in denying relief without an evidentiary
hearing.”
Commonwealth v. Smith, 121 A.3d 1049, 1052 (Pa. Super. 2015) (citations
omitted). The decision to deny a request for an evidentiary hearing is “within
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the discretion of the PCRA court and will not be overturned absent an abuse
of discretion.” Commonwealth v. Mason, 130 A.3d 601, 617 (Pa. 2015).
Where, as here, a petitioner’s claims raise allegations of prior counsel’s
ineffectiveness,
the petitioner must demonstrate: (1) that the underlying claim
has arguable merit; (2) that no reasonable basis existed for
counsel's actions or failure to act; and (3) that the petitioner
suffered prejudice as a result of counsel’s error. . . . Counsel is
presumed to be effective; accordingly, to succeed on a claim of
ineffectiveness the petitioner must advance sufficient evidence to
overcome this presumption.
Commonwealth v. Johnson, 139 A.3d 1257, 1272 (Pa. 2016) (citations
omitted). Furthermore, we note:
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.”
Commonwealth v. Pier, 182 A.3d 476, 478–79 (Pa. Super. 2018) (citations
omitted).
In the present case, Appellant insists the trial court abused its discretion
when it denied his request for an evidentiary hearing so that he could prove
the ineffectiveness of plea counsel, Attorney Harrison, caused him to enter an
involuntary plea. Attached to his amended petition were four witness
certifications by PCRA counsel, three of which included affidavits by proposed
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witnesses. See Commonwealth v. Pander, 100 A.3d 626, 642 (Pa. Super.
2014) (witness certification requirement of PCRA “can be met by an attorney
or pro se petitioner certifying what the witness will testify regarding[;]”
overruling Commonwealth v. McLaurin, 45 A.3d 1131 (Pa. Super 2012),
“insofar as it requires PCRA petitioner to file affidavits to be entitled to an
evidentiary hearing”).
PCRA counsel first included a certification concerning Appellant’s
proposed testimony and attached an affidavit from Appellant. PCRA counsel
certified that Appellant would testify Attorney Harrison was unprepared for
trial, assured Appellant he could raise a speedy trial claim on appeal, and
“strongly urged” Appellant to plead guilty. Appellant’s Amended Petition
Under Post Conviction Relief Act, 9/18/18, Certification regarding Appellant at
2 (unpaginated). Notably, however, Appellant’s attached affidavit, dated
August 7, 2018, made no mention of these claims. Rather, it focuses on
arguments concerning Appellant’s innocence of the charged offenses. In the
second certification, counsel simply asserted that he would call prior plea
counsel to testify “as to his trial preparation and the conversations, advice he
gave and other interactions with [Appellant].” Id., Certification regarding
Fred Harrison, Esquire.14 PCRA counsel also attached affidavits from
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14We note PCRA counsel did not certify that Attorney Harrison would confirm
Appellant’s allegations that (1) Attorney Harrison was unprepared for trial and
(2) Attorney Harrison incorrectly informed Appellant that he could appeal the
speedy trial issue following a guilty plea.
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Appellant’s sister, Yolanda Velazquez — who averred plea counsel was
unprepared for trial and advised Appellant he could raise his speedy trial claim
on appeal — and Appellant’s former fiancée, Ronetta McLean — who averred
that the apartment complex where they lived at the time of one of the offenses
had security cameras, which may have been helpful to his defense.15
What Appellant ignores, however, is “‘[t]he longstanding rule of
Pennsylvania law . . . 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.’” See Pier, 182 A.3d at 480 (citation omitted). Indeed, it is well-
settled that:
“A person who elects to plead guilty is bound by the statements
he makes in open court while under oath and he may not later
assert grounds for withdrawing the plea which contradict the
statements he made at his plea colloquy.” Commonwealth v.
Pollard, 832 A.2d 517, 523 (Pa. Super. 2003).
Id.Here, the record reveals that Appellant stated his intention to proceed
to trial on November 17, 2015. Indeed, the trial court asked him if he had “a
chance to discuss with [his] lawyer whether [he wanted] to plead or go to
trial[,]” to which Appellant responded, “Yes, I did” and stated, “I’m ready to
proceed with trial.” N.T., 11/17/15, at 11. At that time, the jury panel was
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15 Appellant’s Amended Petition Under Post Conviction Relief Act, 9/18/18,
Affidavit of Yolanda Velazquez, 7/25/18, at 2 (unpaginated); Affidavit of
Ronetta McLean, 7/21/18.
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sworn and the trial court delivered opening remarks. Id. Thereafter, the
following exchange occurred:
THE COURT: All right. I think you wanted to take a short
recess?
[Plea Counsel]: Yes, Your Honor.
THE COURT: We can do that now. Your client wanted to
talk to his sister. Does she need to go to the booth? . . .
All right. A short recess.
Id. at 12. After the brief recess, Appellant proceeded to enter an open guilty
plea.
Appellant signed a written guilty plea colloquy for each case which
included the following paragraph:
SATISFIED WITH MY LAWYER
I am satisfied with the advice and service I received from my
lawyer. My lawyer spent enough time on my case and I had
enough time to talk with my lawyer about the case. My lawyer
left the final decision to me and I decided myself to plead guilty.
Written Guilty Plea Colloquy, 11/17/15, at 3. 16 Furthermore, Attorney
Harrison signed a certification on each colloquy attesting that Appellant read
the colloquy in his presence and “appeared to fully understand it[,]” and that
counsel answered any questions Appellant may have had. Id. at 4.
Moreover, relevant to the specific claims raised herein, the following
exchange occurred during the oral colloquy:
____________________________________________
16Each written colloquy contained the same language and was signed by
Appellant and counsel.
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THE COURT: If you were to go to trial, . . . you could be
found not guilty and that would be the end of the case. Or, if you
were found guilty, you could appeal to the Superior Court. And
you know how the process works, you’ve been through that
before. In that appeal you could raise any issue you wanted to
raise.
However, when you plead guilty, you have a limited appeal
right. You can only complain about the jurisdiction of this court,
legality of my sentence, the voluntariness of your plea, and you
can always raise ineffective assistance of counsel.
Have you had a change to discuss that limited appeal right
with your lawyer?
[Appellant]: Yes. Yes, sir.
THE COURT: And have you had a chance to discuss with
him any possible defenses if you went to trial, factual defenses,
legal defenses?
[Appellant]: Yes.
THE COURT: And you still want to plead guilty?
[Appellant]: Um-hum. Yes.
N.T., 11/17/15, at 24-25. In addition, the written plea colloquies, reviewed
and signed by Appellant, also explicitly stated: “If I plead guilty, I also give
up my speedy trial rights and my right under Rule 600 to be tried within 180
days from the filing of the complaint.” Written Guilty Plea Colloquy, 11/17/15,
at 2. See also id. (“If I already had a hearing on pre-trial motions, when I
plead guilty I give up my right to appeal the decisions on those motions.”).
We conclude Appellant is entitled to no relief. Although Appellant now
claims Attorney Harrison was unprepared for trial, the record reveals his jury
trial had already begun when Appellant asked for a brief recess to speak with
his sister. See N.T., 11/17/15, at 12. Moreover, Appellant attested in his
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written colloquies that he was satisfied with counsel’s representation, and
affirmed in his oral colloquy that he had the opportunity to discuss all possible
defenses with counsel before choosing to enter his plea. See Written Guilty
Plea Colloquy, 11/17/15, at 3; N.T., 11/17/15, at 25. Similarly, the record
disputes Appellant’s claim that he entered his plea involuntarily because he
relied on counsel’s purported assertion that he could raise the Rule 600 issue
on appeal. Indeed, during the plea hearing, Appellant affirmatively
acknowledged that once he entered a guilty plea, his appeal rights were
limited to challenges to the jurisdiction of the court, the legality of his sentence
and the voluntariness of his plea. See N.T., 11/17/15, at 25. Further, the
written colloquies he reviewed and signed made clear that if he entered a
guilty plea, he would waive his speedy trial and Rule 600 rights. See Written
Guilty Plea Colloquy, 11/17/15, at 2. Because “‘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,’” we conclude Appellant is entitled to no
relief. See Pier, 182 A.3d at 480 (citation omitted).
Thus, finding no abuse of discretion on the part of the PCRA court in its
denial of an evidentiary hearing, we affirm the order dismissing Appellant’s
petition.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/14/20
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