Com. v. Sullivan, J. ( 2020 )

J-S69020-19 & J-S69021-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JAMES EDWARD SULLIVAN :
:
Appellant : No. 1611 EDA 2019
Appeal from the PCRA Order Entered May 1, 2019
n the Court of Common Pleas of Wayne County,
Criminal Division at No(s): CP-64-CR-0000307-2016,
CP-64-CR-0000314-2016.
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JAMES EDWARD SULLIVAN :
:
Appellant : No. 1613 EDA 2019
Appeal from the PCRA Order Entered May 1, 2019,
in the Court of Common Pleas of Wayne County,
Criminal Division at No(s): CP-64-CR-0000307-2016,
CP-64-CR-0000314-2016.
BEFORE: SHOGAN, J., KUNSELMAN, J., and COLINS, J.*
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S69020-19 & J-S69021-19
MEMORANDUM BY KUNSELMAN, J.: FILED AUGUST 11, 2020
James Edward Sullivan appeals pro se from the order denying his first
petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A.
§§ 9541-9546. We affirm.
The pertinent facts and procedural history are as follows. On October
13, 2016, Sullivan entered a guilty plea at two different dockets. At CP-64-
CR-0000307-2016, Sullivan pled guilty to one count each of possession with
intent to deliver, criminal trespass, possessing an instrument of crime, and
resisting arrest. At CP-64-CR-0000314-2016, Sullivan pled guilty to one count
of conspiracy to commit theft. Pursuant to the plea agreement, the
Commonwealth withdrew all additional charges. On November 3, 2016, the
trial court sentenced Sullivan, at both dockets, to an aggregate term of 75 to
168 months of imprisonment. The trial court denied Sullivan’s timely filed
post-sentence motion to modify sentence. Sullivan filed a timely appeal to
this Court in which he challenged the discretionary aspects of his sentence.
In an unpublished memorandum filed on August 25, 2017, we rejected
Sullivan’s claim and affirmed his judgment of sentence. Commonwealth v.
Sullivan, 175 A.3d 1114 (Pa. Super. 2017). Sullivan did not file a petition
for allowance of appeal to our Supreme Court.
On February 12, 2018, Sullivan filed a timely pro se PCRA petition. The
PCRA court appointed counsel, and PCRA counsel filed a motion to withdraw
and a “no-merit” letter pursuant to Commonwealth v. Turner, 544 A.2d 927
(Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988)
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(en banc). On April 1, 2019, the PCRA court issued a Pa.R.Crim.P. 907 notice
of its intent to dismiss Sullivan’s petition without a hearing, and granted PCRA
counsel’s motion to withdraw. Sullivan filed a response. By order entered
May 1, 2019, the PCRA court dismissed Sullivan’s PCRA petition. This pro se
appeal followed.1 Both Sullivan and the PCRA court have complied with
Pa.R.A.P. 1925.
In his appeal, Sullivan contends that the PCRA court erred in dismissing
his PCRA petition. See Sullivan’s Brief at 2. Our scope and standard of review
is well settled:
In PCRA appeals, our scope of review is limited to the
findings of the PCRA court and the evidence on the record
of the PCRA court's hearing, viewed in the light most
favorable to the prevailing party. Because most PCRA
appeals involve questions of fact and law, we employ a
mixed standard of review. We defer to the PCRA court's
factual findings and credibility determinations supported by
the record. In contrast, we review the PCRA court's legal
conclusions de novo.
Commonwealth v. Reyes-Rodriguez, 111 A.3d 775, 779 (Pa. Super.
2015) (citations omitted).
____________________________________________
1 Although Sullivan included both trial court docket numbers on his separate
notices of appeal, this fact no longer requires quashal. See Commonwealth
v Johnson, ___ A.3d ___, ___ (Pa. Super. 2020) (en banc), Slip Opinion at
12 (partially overruling Commonwealth v. Creese, 216 A.3d 1142 (Pa.
Super. 2019), to the extent that Creese interpreted Commonwealth v.
Walker, 185 A.3d 969 (Pa. 2018), as requiring Superior Court to quash
appeals when appellant filed multiple notices of appeal and each notice lists
all of the appealed from docket numbers). See also Commonwealth v.
Larkin, ___ A.3d ___, ___ (Pa. Super. 2020), Slip Opinion at 3 (accord).
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In support of his claim that the PCRA court erred in dismissing his
petition, Sullivan contends that the PCRA court erred “in finding that [his]
PCRA claim that [plea counsel] rendered ineffective assistance of counsel for
inducing [him] into entering a negotiated guilty plea based upon the false
promise of concurrent sentencing was without merit.” Id. In addition,
Sullivan argues that the PCRA court erred “in finding that [his] PCRA claim
that [plea counsel] rendered ineffective assistance of counsel for failing to
raise the issue of [his] negotiated plea colloquy not being honored on direct
[appeal was] without merit.” Id. at 6.2
Sullivan’s claims allege the ineffective assistance of plea counsel. To
obtain relief under the PCRA premised on a claim that counsel was ineffective,
a petitioner must establish by a preponderance of the evidence that counsel’s
ineffectiveness so undermined the truth determining process that no reliable
adjudication of guilt or innocence could have taken place. Commonwealth
v. Johnson, 966 A.2d 523, 532 (Pa. 2009). “Generally, counsel’s
performance is presumed to be constitutionally adequate, and counsel will
only be deemed ineffective upon a sufficient showing by the petitioner.” Id.
This requires the petitioner to demonstrate that: (1) the underlying claim is
of arguable merit; (2) counsel had no reasonable strategic basis for his or her
____________________________________________
2 Sullivan also claims that the PCRA court erred in concluding that PCRA
counsel’s “no-merit” letter met the criteria of Turner/Finley since counsel did
not address his second claim of ineffectiveness. Sullivan’s Brief at 5. As
explained infra, because Sullivan did not raise this issue in his PCRA petition,
PCRA counsel cannot be faulted for failing to address it.
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action or inaction; and (3) petitioner was prejudiced by counsel's act or
omission. Id. at 533. A finding of "prejudice" requires the petitioner to show
"that there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different." Id.
Initially, upon review of Sullivan’s pro se PCRA petition, we note that
Sullivan did not challenge plea counsel’s ineffectiveness for failing to appeal
the claim that his plea deal was not honored. Therefore, because Sullivan’s
claim inappropriately is being raised for the first time on appeal, it is waived.
See generally, Pa.R.A.P. 302(a). Thus, the only claim preserved for review
involves the PCRA court’s rejection of Sullivan’s claim that plea counsel was
ineffective for inducing him to enter an invalid plea.
This Court has summarized the following regarding claims that the entry
of a guilty plea was the result of ineffective assistance of counsel:
A criminal defendant has the right to effective counsel
during a plea process as well as during trial. A defendant is
permitted to withdraw his guilty plea under the PCRA if
ineffective assistance caused the defendant to enter an
involuntary plea[.]
We conduct our review of such a claim in accordance with
the three-pronged ineffectiveness test under section
9543(a)(2)(ii) of the PCRA. The voluntariness of the plea
depends on whether counsel’s advice was within the range
of competence demanded of attorneys in criminal cases.
Commonwealth v. Orlando, 156 A.3d 1274, 1280 (Pa. Super. 2017)
(citations omitted).
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In this case, the PCRA court reviewed Sullivan’s answers to questions
posed in the written guilty plea colloquy he signed, as well as his responses
during the oral colloquy with the court. As part of this review, the PCRA court
explained:
Most importantly to the current matter at hand in
[Sullivan’s] PCRA [petition], the District Attorney asked
“You understand that it is up to the Judge as to whether or
not he sentences you consecutively or non-consecutively?”
to which [Sullivan] again answered “Yes”. [Sullivan] had
ample opportunity to address this Court and at no point did
he raise any issues or objections with his belief that the
District Attorney was not honoring his negotiated plea
agreement and that he wanted to withdraw it.
Whether a defendant understood a plea of guilty and its
consequences is to be determined by examining the totality
of the circumstances. Commonwealth v. Mendoza, 730
A.2d 503 (Pa. Super. 1999). This Court recognizes that the
totality of the circumstances [in this case] reflects a clear
and thorough understanding of the consequences and
outcomes of [Sullivan’s] guilty plea. [Sullivan] read,
initialed, and signed an elven (11) page written guilty plea
colloquy. Additionally, [Sullivan] engaged in an extensive
oral colloquy of the agreement which was conducted by both
the District Attorney and this Court. [Sullivan] understood
the charges to which he was pleading guilty as well as the
possible sentence for these charges. [Sullivan] understood
that the plea was considered an open plea and that while
the District Attorney was not specifically seeking a
consecutive sentence, it was within this Court’s discretion
whether to issue a concurrent or consecutive sentence.
PCRA Court Opinion, 4/1/19, at 6. Our review of the record supports the PCRA
court’s conclusions.
As this Court has summarized:
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Our 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 long standing 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.
***
[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. Pollard, 832 A.2d 517, 523-24 (Pa. Super. 2003)
(citations omitted).
Here, as noted by the PCRA court, Sullivan responded that he
understood that the trial court would decide whether to impose his sentences
either consecutively or concurrently. See N.T., 10/13/16, at 9-10. In
addition, within the written guilty plea signed by Sullivan, he acknowledged
that the only promise made to him in return for his guilty plea was that the
District Attorney would not seek consecutive sentences. Written Guilty Plea,
10/13/16, at unnumbered 3.
The fact that there was no guarantee Sullivan would receive concurrent
sentences is further evidenced by the statements of the parties when the trial
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court sentenced Sullivan. At that time, the District Attorney reminded the
court that “there was an agreement between [plea] counsel and myself that I
would not personally request consecutive sentences in this case. However,
that it would be under the discretion, full discretion of the Court, and I honored
that agreement.” N.T., 11/3/16, at 4. For his part, plea counsel informed the
court that he believed the probation department’s recommendation of wholly
consecutive sentence was excessive, and plea counsel therefore asked the
trial court “to consider making some of the sentences concurrent.” N.T.,
11/3/16, at 7. Thus, contrary to Sullivan’s current claim, there was no
agreement between the parties and the court that Sullivan’s sentences would
be imposed concurrently.
In sum, because our review of the record supports the PCRA court’s
conclusion that Sullivan’s ineffectiveness claims lack arguable merit or are
waived, the court properly denied his PCRA petition. We therefore affirm its
order denying Sullivan post-conviction relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/11/2020
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