Com. v. Turner, S. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
SHAWN TURNER :
:
Appellant : No. 3230 EDA 2019
Appeal from the PCRA Order Entered August 30, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0001329-2015,
CP-51-CR-0001336-2015, CP-51-CR-0001354-2015,
CP-51-CR-0001370-2015, CP-51-CR-0001371-2015,
CP-51-CR-0008881-2014
BEFORE: SHOGAN, J., KING, J., and COLINS, J.*
MEMORANDUM BY SHOGAN, J.: FILED JANUARY 26, 2021
Appellant, Shawn Turner, appeals pro se from the order denying his
petition for relief filed pursuant to the Post Conviction Relief Act (“PCRA”), 42
Pa.C.S. §§ 9541–9546. We affirm.
The PCRA court summarized the procedural history of this case as
follows:
On March 22, 2016, Appellant . . . entered non-negotiated
guilty pleas on seven (7) cases, as follows:
CP-51-CR-0008881-2014 -- Fleeing or attempting to elude
police (F-3);
CP-51-CR-0001329-2015 – Robbery (F-1), Conspiracy to
Commit Robbery (F-1), Possession of an Instrument of a Crime
(M-1) and Terroristic Threats (M-1);
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* Retired Senior Judge assigned to the Superior Court.
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CP-51-CR-0001336-2015 – Robbery (F-1), Conspiracy to
Commit Robbery (F-1), Possession of an Instrument of a Crime
(M-1), Terroristic Threats (M-1) and Simple Assault (M-2);
CP-51-CR-0001354-2015 – Robbery (F-1) and Possession of
an Instrument of a Crime (M-1);
CP-51-CR-0001370-2015 – Robbery (F-1) and Conspiracy
to Commit Robbery (F-1);
CP-51-CR-0001371-2015 – Robbery (F-1), Conspiracy to
Commit Robbery (F-1) and Possession of an Instrument of a Crime
(M-1); and
CP-51-CR-0001372-2015 – Robbery (F-1), Conspiracy to
Commit Robbery (F-1) and Possession of an Instrument of a Crime
(M-1).1
1 Appellant only listed six (6) cases in his PCRA
petition, omitting CP-51-CR-0001372-2015.
Although that case is not part of this appeal, it is
included herein for completeness.
On August 3, 2016, [Appellant] was sentenced to an
aggregate of 17 1/2 to 35 years incarceration.
On August 11, 2016, a timely Motion for Reconsideration of
Sentence was filed by [Appellant].
On August 25, 2016, the [c]ourt denied the motion for
reconsideration of sentence.
A timely Notice of Appeal was filed on September 19, 2016.
The sentences were affirmed by the Superior Court on
November 15, 2017.
On November 7, 2018, Appellant filed a timely pro se
petition pursuant to the Post Conviction Relief Act (PCRA).
On July 16, 2019, appointed counsel submitted a no-merit
letter and motion to withdraw, pursuant to Commonwealth v.
Finley, [550 A.2d 213] (Pa. Super. 1988).
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On August 6, 2019, the [c]ourt issued a Notice of Intent to
Dismiss the petition, pursuant Pa.R.Crim. P. 907.
On August 30, 2019, the [c]ourt dismissed the PCRA
petition, granted counsel’s motion to withdraw, and sent Appellant
notice of the dismissal, pursuant to Pa.R.Crim.P. 907(4).
On September 30, 2019, Appellant mailed a pro se notice of
appeal to the [c]ourt, addressed to chambers.2 The [c]ourt
forwarded that notice to the clerk for filing.
2 Appellant’s Notice of Appeal and Certificate of
Service are dated September 30, 2019. The postmark
on the envelope from SCI-Forest is dated October 1,
2019.[1]
* * *
Prior to pleading guilty, [Appellant] executed a written guilty
plea colloquy on each case and an oral colloquy was conducted.
PCRA Court Opinion, 11/12/19, at 1-2 (internal citation omitted).
Before we can entertain the merits of the instant appeal, we must
address the fact that Appellant filed a single pro se notice of appeal identifying
six different docket numbers. “The Official Note to Rule 341 was amended in
2013 to provide clarification regarding proper compliance with [Pa.R.A.P]
341(a)[.]” Commonwealth v. Walker, 185 A.3d 969, 976 (Pa. 2018). For
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1 “[T]he prisoner mailbox rule provides that a pro se prisoner’s document is
deemed filed on the date he delivers it to prison authorities for mailing.”
Commonwealth v. Chambers, 35 A.3d 34, 38 (Pa. Super. 2011).
Appellant’s notice of appeal and certificate of service are dated September 30,
2019. The docket indicates that the notice of appeal was filed on October 1,
2019. The PCRA court further noted that on September 30, 2019, Appellant
mailed a pro se notice of appeal to the court, addressed to chambers, which
the PCRA court forward to the clerk for filing. PCRA Court Opinion, 11/12/19,
at 2. Thus, it appears that Appellant attempted to mail the notice of appeal
on September 30, 2019. As such, we conclude that the filing of this appeal is
timely pursuant to the prisoner-mailbox rule.
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cases filed after June 1, 2018, Walker requires that when a single order
resolves issues arising on more than one lower court docket, separate notices
of appeal must be filed. Failure to do so results in quashal of the appeal. Id.
at 977.
In the case sub judice, Appellant filed his pro se notice of appeal on
September 30, 2019. On January 6, 2020, we issued a rule to show cause
why the instant appeal should not be quashed under Walker. In his response,
Appellant claims that he was initially unaware of the Walker rule, but upon
learning of it, he filed a motion to file appeals nunc pro tunc with the clerk for
the Common Pleas Court of Philadelphia. Appellant’s Response to the Issued
Order, Dated January 6, 2020, to Show Cause, 1/21/20, at 1-2. Despite
Appellant’s assertions, however, the court of common pleas docket does not
reflect the filing of such motion. The show-cause order was discharged on
January 21, 2020, and the matter was referred to this merits panel.
Walker’s mandate is clear. Appellant was required to file six separate
notices of appeal in this matter. Appellant failed to do so. Thus, at first blush,
this appears to be a clear violation of Walker, requiring quashal of this appeal.
However, we conclude that quashal is unnecessary in light of this Court’s
recent decision in Commonwealth v. Larkin, 235 A.3d 350 (Pa. Super.
2020).
In Larkin, the PCRA court entered an order dismissing the
defendant’s PCRA petition, in which the defendant had sought
PCRA relief relating to more than one docket. The PCRA court’s
dismissal order informed the defendant that he had thirty days
from the date of the order “to file an appeal.” (emphasis in
original). The defendant timely filed a notice of appeal listing both
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of his criminal docket numbers. We declined to quash the appeal
on the ground that the order’s reference to “an appeal” misled the
defendant into filing a single notice of appeal, thus constituting a
breakdown in the court’s operation. [Larkin, 235 A.3d at 353-
354] (citing Commonwealth v. Stansbury, 219 A.3d 157, 159-
60 (Pa. Super. 2019) (noting that “we have many times declined
to quash a [defective] appeal when the defect resulted from an
appellant’s acting in accordance with misinformation relayed to
him by the trial court” and holding that this Court can overlook
such defects because the purveyance of misinformation by the
court constitutes a breakdown in the court’s operations)).
Commonwealth v. Floyd, ___ A.3d ___, ___ , 2020 Pa. Super. 287, *3 (Pa.
Super. filed December 16, 2020) (some internal citations omitted).
Instantly, the PCRA court’s certification of dismissal, which lists all six
docket numbers, notified Appellant that he may file “a” notice of appeal.
Notice of Dismissal of PCRA Petition and Right to Appeal Pursuant to
Pennsylvania Rule of Criminal Procedure 907(4), 8/30/19, at 1. As this Court
concluded in Larkin, a breakdown occurred in the court system and Appellant
was misinformed or misled regarding his appellate rights; thus, we may
overlook the requirements of Walker. Larkin, 235 A.3d at 354. Accordingly,
pursuant to the holding in Larkin, we decline to quash Appellant’s appeal.
We now turn to the merits of this appeal. Appellant presents the
following issues for our review, which we present verbatim:
1. Whether Giovanni O. Campbell, Trial Judge (hereafter Judge
Campbell) improperly dismissed the Motion For Post-Conviction
Collateral Relief that appellant, pro se, filed with the Clerk for
Court of Common Pleas of Philadelphia County (Common Pleas-
Philadelphia)?
2. Whether Giovanni O. Campbell, Trial Judge (hereafter Judge
Campbell) improperly granted the Motion to Withdraw that
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Matthew P. Sedacca, Esq., Post-Conviction counsel (hereafter
attorney Sedacca) filed with the Clerk for Court of Common Pleas
of Philadelphia County (Common Pleas -Philadelphia)?
3. Whether Evan Hughes, Esq., Trial counsel (hereafter attorney
Hughes) made to appellant an improper promise relative (to
appellant receiving a pre-determined sentence term of seven and
a half (71/2) years to fifteen (15) years imprisonment in exchange
for appellant being agreeable to tender a plea of guilty (guilty
plea) relative to eight (8) counts of the criminal offense (offense)
Robbery, five (5) counts of the offense Criminal Conspiracy
(Conspiracy), one (1) count of the offense Simple Assault, six (6)
counts of the offense Possessing Instrument of Crime (PIC), two
(2) counts of the offense Terroristic Threats, and one (1) count of
the offense Fleeing or Attempting to Elude a Police Officer
(Fleeing) prior to appellant having tendered, and Giovanni O.
Campbell, Trial Judge (hereafter Judge Campbell) having accepted
a guilty plea relative to said count(s) of the said offense(s) at the
conclusion of a guilty plea hearing that Judge Campbell conducted
on appellant’s behalf?
4. Whether Giovanni O. Campbell, Trial Judge (hereafter Judge
Campbell) failed to ensure appellant was aware of each essential
element that comprised the individual criminal offense
(offense)(s) filed against appellant, via an on-record plea of guilty
(guilty plea) colloquy, during a guilty plea hearing that he
conducted on appellant’s behalf?
5. Whether Giovanni O. Campbell, Trial Judge (hereafter Judge
Campbell) failed to ensure appellant was aware of the possibility
that any sentence(s) imposed against appellant could be found to
be served consecutively, via an on-record plea of guilty (guilty
plea) colloquy, during a guilty plea hearing that he conducted on
appellant’s behalf?
6. Whether Giovanni O. Campbell, Trial Judge (hereafter Judge
Campbell) improperly accepted from appellant several plea of
guilty (guilty plea)(s) that were not knowingly, intelligently, or
voluntarily tendered at the conclusion of a guilty plea hearing that
he conducted on appellant’s behalf?
Appellant’s Brief at 4-5.
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Our standard of review of an order denying PCRA relief is whether the
record supports the PCRA court’s determination, and whether the PCRA court’s
determination is free of legal error. Commonwealth v. Phillips, 31 A.3d
317, 319 (Pa. Super. 2011). The PCRA court’s findings will not be disturbed
unless there is no support for the findings in the certified record. Id.We first note that although Appellant identified six issues in his
Statement of Questions Involved, the Argument section of his brief addresses
and presents arguments in support of only three issues. Thus, the remaining
issues raised in his Statement of Questions Involved are waived. See
Commonwealth v. Phillips, 141 A.3d 512, 522 (Pa. Super. 2016) (“[I]ssues
raised in a Brief’s Statement of Questions Involved but not developed in the
Brief’s argument section will be deemed waived.”).
In his first issue addressed in the Argument section of his brief,
Appellant asserts the following, which we have set forth herein verbatim:
I. Appellant would not have tendered a plea of guilty (guilty plea)
relative to eight (8) counts of the criminal offense (offense)
robbery, five (5) counts of the offense criminal conspiracy
(conspiracy), one (1) count of the offense simple assault, six (6)
counts of the offense possessing instrument of crime (pic), two
(2) counts of the offense terroristic threats, and one (1) count of
the offense fleeing or attempting to elude a Police officer (fleeing)
at the conclusion of a guilty plea hearing that Giovanni O.
Campbell, trial judge (hereafter Judge Campbell) conducted on his
behalf, if not for Evan Hughes, Esq., Trial Counsel, (hereafter
Attorney Hughes) having made to him a promise relative to him
receiving a pre-determined sentence term of seven and a half (7
1/2) years to fifteen (15) years imprisonment in exchange for him
being agreeable to tender a guilty plea relative to said count(s) of
said offense(s) prior to said guilt, plea hearing[.]
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Appellant’s Brief at 18 (full capitalization omitted).
The record reflects that Appellant did not raise this issue in his pro se
PCRA petition. PCRA Petition, 11/7/18, at 4. Appointed counsel did not file
an amended PCRA petition. “It is well-settled that issues not raised in a PCRA
petition cannot be considered on appeal.” Commonwealth v. Ousley, 21
A.3d 1238, 1242 (Pa. 2011) (quotation and citations omitted); see also
Pa.R.A.P. 302(a) (“Issues not raised in the lower court are waived and cannot
be raised for the first time on appeal.”). Appointed counsel, however, filed a
Turner/Finley2 letter in support of his motion to withdraw, and therein
addressed Appellant’s potential claims. In the Turner/Finley letter, counsel
identifies claims of trial counsel’s ineffectiveness for permitting Appellant to
enter an open guilty plea and for trial counsel being ineffective “where a guilty
plea was unlawfully induced.” Turner/Finley Letter, 7/11/19, at unnumbered
5. As such, we decline to find this issue waived.
When considering an allegation of ineffective assistance of counsel
(“IAC”), counsel is presumed to have provided effective representation unless
the PCRA petitioner pleads and proves that: (1) the underlying claim is of
arguable merit; (2) counsel had no reasonable basis for his or her conduct;
and (3) petitioner was prejudiced by counsel’s action or omission.
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2 See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc),
(setting forth the requirements for counsel seeking to withdraw in collateral
proceedings).
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Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014). “In order to meet
the prejudice prong of the ineffectiveness standard, a defendant must show
that there is a ‘reasonable probability that but for counsel’s unprofessional
errors, the result of the proceeding would have been different.’”
Commonwealth v. Reed, 42 A.3d 314, 319 (Pa. Super. 2012). A claim of
ineffective assistance of counsel will fail if the petitioner does not meet any
one of the three prongs. Commonwealth v. Simpson, 66 A.3d 253, 260
(Pa. 2013). “The burden of proving ineffectiveness rests with Appellant.”
Commonwealth v. Rega, 933 A.2d 997, 1018 (Pa. 2007).
With regard to entry of an allegedly involuntary plea, this Court has
explained:
In order for a guilty plea to be constitutionally valid, the guilty
plea colloquy must affirmatively show that the defendant
understood what the plea connoted and its consequences. This
determination is to be made by examining the totality of the
circumstances surrounding the entry of the plea. Thus, even
though there is an omission or defect in the guilty plea colloquy,
a plea of guilty will not be deemed invalid if the circumstances
surrounding the entry of the plea disclose that the defendant had
a full understanding of the nature and consequences of his plea
and that he knowingly and voluntarily decided to enter the plea.
Commonwealth v. Yeomans, 24 A.3d 1044, 1047 (Pa. Super. 2011).
Additionally, a written plea colloquy that is read, completed, signed by the
defendant, and made part of the record, may serve as the defendant’s plea
colloquy when supplemented by an oral, on-the-record examination.
Commonwealth v. Morrison, 878 A.2d 102, 108-109 (Pa. Super. 2005)
(citing Pa.R.Crim.P. 590, cmt.). “Our law presumes that a defendant who
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enters a guilty plea was aware of what he was doing. He bears the burden of
proving otherwise.” Commonwealth v. Pollard, 832 A.2d 517, 523 (Pa.
Super. 2003) (internal citation omitted).
In addressing this issue, the PCRA court explained:
Appellant’s claim that counsel was ineffective in permitting
Appellant to enter open guilty pleas is without merit.
The record demonstrates that the Commonwealth offered
Appellant a global plea offer of 15-30 years, which Appellant
declined after consultation with counsel. Instead, Appellant
elected to enter guilty pleas and permit the [c]ourt to determine
sentence. Appellant was advised and agreed in writing and orally
under oath that he was entering open pleas. Appellant also
understood that he was giving up the right to go to trial, whether
before the [c]ourt or jury. The guilty pleas were entered into
knowingly, intelligently and voluntarily, and were not induced by
promises or threats.
The Superior Court has explained:
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.
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Commonwealth v. Pollard, 832 A.2d 517, 523-24 (Pa. Super.
2003) (citations omitted).
Here, the record upon which we must rely consists of
Defendant’s written and oral colloquy acknowledging in detail all
the rights he was giving up, including his right to trial, that he
understood those rights and the decision he was making, and that
his decisions were not the result of coercion or promises.
Accordingly, there is no basis for finding that counsel was
ineffective in relation to Appellant’s knowing and voluntary
decision to reject the Commonwealth’s offer, give up the right to
trial, and instead enter open guilty pleas.
* * *
As discussed above, Appellant is bound by his sworn written
and oral answers to questions regarding the voluntariness of his
guilty plea. In these cases Appellant was specifically colloquized:
THE COURT: And has anyone forced you or coerced to plead
guilty in this case today?
THE DEFENDANT: No.
THE COURT: Anyone made you any promises to get you to
plead guilty in this case?
THE DEFENDANT: No.
Appellant also stated in the written colloquies, which he
acknowledged and signed, that: “Nobody promised me anything
or threatened me or forced me to plead guilty. I, myself, have
decided to plead guilty.”
Accordingly, there is no merit to the claim that the guilty
pleas were unlawfully induced.
PCRA Court Opinion, 11/12/19, at 4-5.
We agree with the PCRA court’s conclusion. In accepting Appellant’s
plea, the trial court conducted an on-the-record guilty plea colloquy. N.T.,
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3/22/16, at 6-19. Appellant also executed a written guilty plea colloquy. The
totality of circumstances surrounding the pleas supports the conclusion that
Appellant knowingly, voluntarily, and intelligently entered his guilty pleas and
that the pleas were not induced by promises of a particular sentence.
Moreover, Appellant has failed to carry the burden of proving otherwise.
Pollard, 832 A.2d at 523. Accordingly, Appellant has failed to establish that
trial counsel was ineffective and induced his guilty plea. Appellant is entitled
to no relief on this claim.
In Appellant’s next claim presented in the Argument section of his brief,
he argues that:
Appellant would not have tendered a plea of guilty (guilty
plea) relative to eight (8) counts of the criminal offense (offense)
robbery, five (5) counts of the offense criminal conspiracy
(conspiracy), one (1) count of the offense simple assault, six (6)
counts of the offense possessing instrument of crime (pic), two
(2) counts of the offense terroristic threats, and one (3) count of
the offense fleeing or attempting to elude police officer (fleeing)
at the conclusion of a guilty plea hearing that Giovanni O.
Campbell, trial judge (hereafter Judge Campbell) conducted on his
behalf, if not for Judge Campbell having failed to ensure he was
aware of each essential element that comprised said individual
offense(s), via an on-record guilty plea colloquy, during said guilty
plea hearing.
Appellant’s Brief at 21 (verbatim).
As noted supra, the trial court conducted an oral colloquy when taking
Appellant’s open pleas. Moreover, Appellant executed written colloquies as
well. As the PCRA court observed: “Appellant acknowledged in the written
and oral colloquies that the elements of the crimes to which he was pleading
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guilty had been explained to him. Written Colloquies, p.4; NT 3/22/16, 16-
17. Appellant cannot now repudiate his signed and sworn statements.” PCRA
Court Opinion, 11/12/19, at 5.
We agree with the PCRA court’s conclusion. We further note that during
the guilty plea hearing, the trial court addressed each case and read the facts
of each case into the record. Appellant confirmed the facts and entered a
guilty plea. N.T., 3/22/16, at 19-32. Thus, Appellant is entitled to no relief
on this claim.
In his final claim addressed in the Argument section of his Brief,
Appellant argues:
III. Appellant would not have tendered a plea of guilty (guilty
plea) relative to eight (8) counts of the criminal offense (offense)
robbery, five (5) counts of the offense criminal conspiracy
(conspiracy), one (1) count of the offense simple assault, six (6)
counts of the offense possessing instrument of crime (pic), two
(2) counts of the offense terroristic threats, and one (1) count of
the offense fleeing or attempting to elude a police officer (fleeing)
at the conclusion of a guilty plea hearing that Giovanni O.
Campbell, trial judge (hereafter Judge Campbell) conducted on his
behalf, if not for Judge Campbell having failed to ensure he was
aware of the possibility that any sentence(s) imposed against him
could be found to be served consecutively, via an on-record guilty
plea colloquy, during said guilty plea hearing[.]
Appellant’s Brief at 26 (verbatim).
We first note that Appellant has failed to preserve this issue by raising
it in his pro se PCRA petition. Moreover, it was not raised in appointed-
counsel’s Turner/Finley letter. As such, this issue is waived. See Ousley,
21 A.3d at 1242 (“It is well-settled that issues not raised in a PCRA petition
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cannot be considered on appeal.”) (quotation and citations omitted); see also
Pa.R.A.P. 302(a) (“Issues not raised in the lower court are waived and cannot
be raised for the first time on appeal.”). Because Appellant did not raise these
issues before the PCRA court, he has waived them on appeal.
Moreover, even if this issue had not been waived, we would find no merit
to Appellant’s claims. During the guilty plea colloquy, the trial court explained
to Appellant the potential sentences for each conviction. N.T., 3/22/16, at 13-
14. The trial court also advised Appellant: “If you were to be sentenced or
receive the maximum sentences on each one of those counts, the aggregate
would be 279 years $1,700,000 fine.” Id. at 14. Appellant stated that he
understood that explanation. Id. As such, Appellant was made aware that
he could be sentenced to serving consecutive sentences. Appellant is entitled
to no relief on this claim.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/26/2021
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