Com. v. Gregory, R. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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
Appellee
v.
RONALD GREGORY
Appellant No. 2643 EDA 2019
Appeal from the PCRA Order Entered August 9, 2019
In the Court of Common Pleas of Philadelphia County
Criminal Division at No: CP-51-CR-0011340-2012
BEFORE: BENDER, P.J.E., STABILE, J., and STRASSBURGER, J.*
MEMORANDUM BY STABILE, J.: Filed: August 27, 2020
Appellant, Ronald Gregory, who was convicted of raping a 78-year-old
female in her home and other crimes, appeals from an order dismissing his
amended petition for relief under the Post Conviction Relief Act (“PCRA”), 42
Pa.C.S.A. §§ 9541-9546. We affirm.
The following facts were adduced during Appellant’s guilty plea hearing.
On July 26, 2012, at approximately 11:00 pm, Appellant, without permission,
entered into the home of 78-year-old M.H., who was sleeping at the time.
Appellant, who did not know M.H., woke her up and brutally raped her,
penetrating her vaginally, anally, and orally. N.T. 12/02/13, pp. 9-10.
Appellant stole M.H.’s television and a fanny pack that contained her rent
money. Id. M.H. identified Appellant at the preliminary hearing and was
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* Retired Senior Judge assigned to the Superior Court.
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prepared to testify at trial. Id. at 13. Another witness observed Appellant
leaving M.H.’s home carrying a television and fanny pack, id. at 11, and
forensic analysis matched Appellant’s DNA to trace evidence of semen
recovered from M.H.’s face. Id. at 10-11.
On December 2, 2013, shortly before trial, Appellant entered an open
plea of no contest to rape, involuntary deviate sexual intercourse, burglary
and robbery.1 Prior to sentencing, Appellant filed a pro se motion to withdraw
his plea. Counsel continued the sentencing hearing several times to discuss
options with Appellant and his family. Ultimately, Appellant withdrew his pro
se motion, and the case proceeded to sentencing. The Commonwealth
recommended a sentence of 40-80 years’ imprisonment, but after hearing
testimony from Appellant, his family, and his girlfriend, the court imposed a
sentence of 18-47 years’ imprisonment.
Appellant filed a motion for reconsideration of sentence, which the court
denied, and a direct appeal, claiming that his sentence was excessively
lengthy. On February 9, 2016, this Court affirmed. Commonwealth v.
Gregory, 1571 EDA 2014, 2016 WL 545815 (Pa. Super., Feb. 9, 2016)
(unpublished memorandum). On July 26, 2016, the Pennsylvania Supreme
Court denied Appellant’s petition for allowance of appeal. Appellant did not
file a petition for certiorari in the United States Supreme Court. Accordingly,
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1 18 Pa.C.S.A. §§ 3121(a)(1), 3123 (a)(1), 3701 (a)(1)(ii), and 3502(a)(1),
respectively.
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his judgment of sentence became final on October 24, 2016, 90 days after the
denial of allocatur.
Subsequently, Appellant filed the PCRA petition presently under review.
The PCRA court appointed counsel, who filed an amended PCRA petition
raising claims of guilty plea counsel’s ineffective assistance.
There were two time stamps on Appellant’s original petition: one stating
that it was “filed” on August 14, 2017, and a second stating it was received
on August 14, 2018. The petition included several items of note:
(1) A proposed order for appointment of counsel dated August 6, 2018;
(2) Appellant’s handwritten note that he sent his PCRA petition to his
attorney on August 14, 2017; and
(3) A cash slip for postage dated August 14, 2017.
Based on the cash slip, the PCRA court determined that Appellant “filed, or
certainly attempted to file,” the original petition on August 14, 2017, which
explained why the PCRA clerk stamped the petition “filed” on that date. N.T.
7/1/19, at 4-5. Accordingly, the court found that the original petition was
timely filed.
On July 1, 2019, the PCRA court convened an evidentiary hearing on the
claims in Appellant’s amended PCRA petition. Guilty plea counsel and
Appellant both testified. On August 9, 2019, the PCRA court denied
Appellant’s amended petition. On September 6, 2019, Appellant filed a notice
of appeal to this Court. The PCRA court filed a Pa.R.A.P. 1925 opinion without
ordering Appellant to file a statement of matters complained of on appeal.
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Appellant raises the following issues in this appeal:
1. Whether the PCRA court erred by dismissing the PCRA petition
when clear and convincing evidence [was] presented to establish
that [A]ppellant was denied his constitutional right to effective
assistance of counsel based on trial counsel’s erroneous advice
during plea negotiations regarding the duration of the sentence
the court would impose[?]
2. Whether the PCRA court erred by dismissing the PCRA petition
when clear and convincing evidence presented to establish that
[A]ppellant’s guilty plea was unlawfully induced based on trial
counsel’s ineffectiveness[?]
Appellant’s Brief at 8.
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. Maxwell, — A.3d
—, 2020 WL 2079168, *4 (Pa. Super. 2020). “The PCRA court’s findings will
not be disturbed unless there is no support for the findings in the certified
record.” Id. “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.” Id. In contrast, we review the PCRA court’s legal
conclusions de novo. Id.Before we may address the merits of this appeal, we must determine
whether the PCRA court had jurisdiction to entertain the underlying PCRA
petition. The PCRA requires petitions to be filed “within one year of the date
the judgment becomes final.” 42 Pa.C.S.A. § 9545(b)(1). For purposes of
the PCRA, “a judgment becomes final at the conclusion of direct review,
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including discretionary review in the Supreme Court of the United States and
the Supreme Court of Pennsylvania, or at the expiration of time for seeking
the review.” 42 Pa.C.S.A. § 9545(b)(3). Section 9545’s timeliness provisions
are jurisdictional. Commonwealth v. Ali, 86 A.3d 173, 177 (Pa. 2014).
Additionally, “the PCRA confers no authority upon this Court to fashion ad hoc
equitable exceptions to the PCRA time-bar in addition to those exceptions
expressly delineated in the Act.” Commonwealth v. Robinson, 837 A.2d
1157, 1161 (Pa. 2003).
Here, Appellant’s judgment of sentence became final on October 24,
2016, so the time for filing a PCRA petition expired on October 24, 2017. The
PCRA court deduced from the cash slip for postage that Appellant mailed his
petition for filing on August 14, 2017. The Commonwealth contends that the
PCRA court is mistaken, pointing to Appellant’s handwritten note in his petition
as evidence that he mailed his petition on August 14, 2017, to his attorney,
not to the PCRA court. The Commonwealth also argues that the proposed
order in Appellant’s petition for appointment of counsel PCRA petition, dated
August 6, 2018, demonstrates that he submitted his petition to prison
authorities in August 2018 instead of August 2017.
Although the Commonwealth’s argument is plausible, the question of
when Appellant filed his original PCRA petition is purely factual. We cannot
override the PCRA court’s factual findings unless there is no support for these
findings in the record. Maxwell, 2020 WL at 2079168, *4. In this case, there
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were facts in the record that, at least when considered in isolation, indicate
that Appellant mailed this petition for filing on August 14, 2017—the August
14, 2017 postage slip and the August 14, 2017 timestamp on the original
petition. Thus, we accept August 14, 2017, as the filing date, which
demonstrates that Appellant timely filed his original petition within the one-
year statute of limitations. We therefore proceed to the issues raised by
Appellant in this appeal.
Appellant claims that counsel provided ineffective assistance, and that
his plea of no contest was coerced and involuntary, because counsel
“guarantee[d]” him a sentence of no more than of five to ten years’
imprisonment if he pleaded no contest. Appellant’s Brief at 12. No relief is
due.
To obtain relief on a claim of ineffective assistance of counsel, Appellant
must prove that: (1) the underlying claim has arguable merit; (2) counsel
lacked a reasonable basis for his actions or failure to act; and (3) the petitioner
was prejudiced by counsel’s deficient performance such that there is a
reasonable probability that the result of the proceeding would have been
different absent counsel’s error or omission. Commonwealth v. Pierce, 527
A.2d 973, 975 (Pa. 1987). Counsel is presumed to have rendered effective
assistance. Commonwealth v. Sepulveda, 55 A.3d 1108, 1117 (Pa. 2012).
To prevail on a claim alleging counsel’s ineffectiveness relating to a plea,
Appellant “must show that counsel’s deficient stewardship resulted in a
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manifest injustice, for example, by facilitating entry of an unknowing,
involuntary, or unintelligent plea.” Commonwealth v. Flanagan, 854 A.2d
489, 502 (Pa. 2004). “A plea of nolo contendere is treated in the same manner
as a guilty plea in terms of its effect upon a particular case.” Commonwealth
v. Williams, 660 A.2d 614, 619 n.1 (Pa. Super. 1995). Appellant “is bound
by [his] statements made during [his] plea colloquy, and may not successfully
assert claims that contradict such statements.” Commonwealth v.
Muhammad, 794 A.2d 378, 384 (Pa. Super. 2002). A written colloquy can
supplement the oral colloquy, Commonwealth v. Morrison, 878 A.2d 102,
108-09 (Pa. Super. 2005), and the written colloquy “must be accorded prima
facie validity,” Commonwealth v. Smith, 450 A.2d 973, 974 (Pa. 1982).
Here, during the oral plea colloquy, the court explained that Appellant
could be sentenced to a maximum of 80 years, which Appellant confirmed he
“understood.” N.T. 12/02/13, at 8. The court asked if Appellant understood
“that the decision as to what sentence you receive will be mine and mine
alone,” and Appellant responded, “Yes, ma’am.” Id. The court asked whether
“anyone has threatened you or forced you to enter into this plea,” to which
Appellant responded, “No, ma’am.” Id. at 8-9. Appellant confirmed that he
was satisfied with the services of his attorney, acknowledged that he had
signed a written no contest plea form, and testified that his lawyer explained
the form to him and he “underst[oo]d everything in the form.” Id. at 9. The
written no contest plea colloquy form stated, “I know I can go to jail for up to
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80 years and be fined $100,000 for the crimes I committed,” “[t]here is no
plea bargain or agreement of any kind,” and “[n]obody promised me anything
or threatened me or forced me to plead guilty. I, myself, have decided to
plead guilty. I know what I say today is final.” Written No Contest Colloquy
05/02/14, at 1.
Citing Flanagan, Appellant argues that his no contest plea was
defective. In Flanagan, “the plea court committed two errors” that fatally
undermined the defendant’s plea: the court’s plea colloquy “failed to adduce
the factual basis for [Flanagan’s] plea” and it “erroneously advised” Flanagan
about the scope of his possible accomplice liability. Id., 854 A.2d at 493.
Here, in contrast, Appellant identifies no defects at all in the plea colloquy,
pointing only to out-of-court promises counsel allegedly made to him that do
not appear in the colloquy or anywhere else in the record.
Appellant’s argument is undermined not only by his own plea colloquy,
but also by the PCRA court’s factual and credibility findings that are owed
deference on appeal. PCRA Opinion, 2/12/20, at 8; N.T. 07/01/19 at 60. In
particular, at the evidentiary hearing, plea counsel unequivocally denied
“tell[ing] [Appellant] that if he were to enter into an open nolo contendere
plea or no contest plea that he would get a sentence of five to ten years,” and
counsel testified that he “would never guarantee anybody a sentence.” N.T.
07/01/19, at 19. The PCRA court found plea counsel’s testimony “very
credible.” Id. at 60. Based on that testimony and the record as a whole, the
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PCRA court concluded, “There is no indication other than [Appellant] now
saying he was told he was getting a five-to ten-year sentence. There is
nothing to support that claim.” Id. The PCRA court’s factual determinations
are supported by the record, and we agree with the PCRA court that
Appellant’s claim of ineffective assistance lacks merit.
Next, Appellant argues that defense counsel was ineffective for “fail[ing]
to file and litigate pre-trial motions” and “investigate potential witnesses.”
Appellant’s Brief at 13. No relief is due. Appellant fails to identify what
motions counsel should have filed or what witnesses counsel should have
investigated. Thus, Appellant’s claim lacks arguable merit.
Finally, Appellant argues that defense counsel failed to file a post-
sentence motion to reconsider his sentence. While it is true that no post-
sentence motion is in the record, counsel testified that he did file a motion to
reconsider, N.T. 07/01/19, at 29, and the record includes an order by the trial
court denying this motion. Order 05/13/14, at 1. On direct appeal, this Court
found that Appellant preserved his objection to the length of his sentence “in
a post-sentence motion” for reconsideration, and we affirmed his sentence on
the merits. Gregory, No. 1571 EDA 2014, 2016 WL 545815, at *1 & n.3.
Appellant fails to identify any relevant sentencing factors overlooked by the
sentencing judge.
Appellant’s attempt to analogize this case to Commonwealth v.
Green, 957 A.2d 1238 (Pa. Super. 2008), vacated 981 A.2d 1283 (Pa. 2009),
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is unavailing. In Green, the trial court imposed “what [was] essentially a life
sentence” in a “garden variety drug dealing case,” but that issue was waived
on direct appeal because defense counsel failed to move for reconsideration.
Id., 957 A.2d at 1242-43. In contrast, the present case is not “garden
variety”: Appellant raped, burglarized and robbed a 78-year-old woman in an
offense that the trial court considered “one the most egregious that I have
ever heard.” N.T. 05/02/14, at 32. Moreover, unlike in Green, the record
herein shows that counsel filed a motion to reconsider sentence, thus
preserving Appellant’s objection to his sentence for appellate review.
For these reasons, we affirm the PCRA court’s order denying relief to
Appellant.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/27/20
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