submitted: May 18, 1983.
COMMONWEALTH OF PENNSYLVANIA
CHARLES E. MOORE, APPELLANT
No. 2447 PHILADELPHIA, 1981, Appeal from the PCHA Order in the Court of Common Pleas, Criminal Division, of Philadelphia County, Nos. 1755-1759 June Term, 1976, Nos. 1746-1747 July Term, 1976.
Margaret M. Boyce, Philadelphia, for appellant.
Jane Cutler Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Hester, Brosky and Beck, JJ.
[ 321 Pa. Super. Page 446]
Before us is an appeal from an Order of the Court of Common Pleas, Philadelphia County, dated August 20, 1981, denying appellant's petition for relief under the Post Conviction Hearing Act (PCHA). 42 Pa.C.S.A. § 9541 et seq.
On October 7, 1976, appellant entered a guilty plea on two Bills of Indictment charging him with possession, manufacture or delivery of controlled substances, heroin and methamphetamines. Imposition of sentence was deferred with appellant's consent and sentencing was set for January 31, 1977. A condition of the plea agreement required appellant to cooperate with several named narcotics officers in the apprehension and prosecution of other drug suppliers. In exchange for such cooperation, appellant was to receive a recommended sentence of probation. Appellant was advised,
[ 321 Pa. Super. Page 447]
in the event that his cooperation was placed in issue by the Commonwealth, that he could withdraw his plea if the trial judge determined that he had cooperated as promised. Appellant was further advised, however, that if it was determined that he failed to cooperate, imposition of maximum sentence could result. Shortly following the entry of the plea, an issue with respect to appellant's cooperation did arise. At a hearing on June 22, 1977, the court determined that appellant had failed to comply with the terms of the plea agreement. On August 25, 1977, the court imposed sentences of six to twelve years on each bill.
Appellant, while represented by trial counsel, did not file a petition to withdraw the guilty plea either prior or subsequent to sentencing. Appellant did, however, while represented by trial counsel, take a direct appeal to this Court. We affirmed judgment of sentence in our per curiam order. Commonwealth v. Moore, 266 Pa. Super. 631, 405 A.2d 550 (1979). We noted in our memorandum in support of our order that appellant's sole basis on direct appeal was the alleged unknowing and involuntary aspects of the plea. We found that appellant's failure to challenge the voluntariness of his guilty plea by means of a petition to withdraw the plea in the trial court prior to taking the direct appeal resulted in a waiver of the alleged defects.
In the case before us, appellant once again seeks our review of the alleged unknowing and involuntary aspects of his plea through an allegation of ineffectiveness of trial counsel.
In his amended PCHA Petition filed by counsel other than original trial counsel, appellant asserted a myriad of contentions which included a general allegation of ineffectiveness of trial counsel, a claim that the guilty plea was involuntary and unlawfully induced, a claim that the lower court failed to advise appellant of his right to withdraw his plea, a claim that after-discovered evidence entitled appellant to a new trial, and a claim that the sentencing judge failed to comply with Rule 1405 Pa.R.Cr.P. Relief requested
[ 321 Pa. Super. Page 448]
by appellant was a granting of a new trial or a reconsideration of his sentence.
At the PCHA hearing, Judge Edward J. Blake conducted a full evidentiary hearing which included testimony by appellant and trial counsel. Among the evidence considered by the PCHA court was the extensive and methodically conducted guilty plea colloquy. At the conclusion of the hearing, the PCHA court found that the guilty plea was valid and knowingly and voluntarily entered, that appellant was not deprived of competent counsel, that no after discovered evidence was shown justifying the withdrawal of the plea and that the sentencing judge had fully complied with Pa.R.Cr.P. 1405. Thus, the PCHA court denied appellant's request to withdraw his plea and permit a new trial since it concluded that appellant had failed to meet his burden of showing prejudice in the order of manifest injustice. Commonwealth v. Starr, 450 Pa. 485, 301 A.2d 592 (1973).
Appellant contends in this appeal from the denial of his amended PCHA petition that (1) his trial counsel was ineffective; (2) he did not enter a knowing and voluntary plea; (3) the trial court failed to advise him of his right to withdraw his guilty plea; and (4) the trial court failed to provide him with sufficient notice of the June 22, 1977 hearing. We find appellant's contentions meritless.
In considering a claim of ineffectiveness, we must first determine whether the underlying issue is of arguable merit. Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977). If the issue is of arguable merit, we must then consider whether the course chosen by counsel had some reasonable basis designed to effectuate his client's interest. Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967).
Appellant argues that trial counsel was ineffective for failing to argue a motion to suppress which he had filed prior to the guilty plea colloquy.*fn1
[ 321 Pa. Super. Page 449]
From the record before us, we are not certain that arguing the motion would have been fruitless since the record does not contain the search warrant, affidavit of probable cuase or the complete testimony relating to the circumstances surrounding the search.*fn2 However, even if we assume that there was arguable merit to the motion, we are convinced that trial counsel was not ineffective for failing to pursue it. At the PCHA hearing, trial counsel testified that the likelihood of success on the motion was not good. (PCHA Hearing 7/1/80, N.T. 37-38). He also testified that though the motion may have had some merit, he believed that the terms of the plea bargain were quite favorable. (PCHA Hearing 7/1/80, N.T. 37-38).
Since counsel sought to avoid the incarceration of appellant and a violation by appellant of a drug probation in an unrelated case; and, appellant in fact received a favorable plea bargain, trial counsel's choice clearly had some reasonable basis designed to effectuate appellant's interests. Commonwealth ex rel. Washington v. Maroney, supra.*fn3
[ 321 Pa. Super. Page 450]
Appellant contends that trial counsel was ineffective for not filing a motion to withdraw the plea prior or subsequent to sentencing.
At the PCHA hearing, trial counsel admitted that he did not file a petition to withdraw the plea following the June 22, 1977 hearing (and prior to sentencing on August 25, 1977). Accordingly to counsel,
"I [wrote] to Mr. Moore on July 1, 1977. I believe that letter is already in evidence. I said: 'Dear Mr. Moore: I've received a portion of the Notes from your guilty plea hearing and it is apparent that you did reserve your right to withdraw the guilty plea and go to trial if you were found uncooperative. Please advise me whether or not you wish to go to trial.'
Q. Did you ever hear from Mr. Moore?
A. Apparently not. I don't believe that I did because I wrote him another letter on August 11, 1977 and indicating: "On July 1, 1977, I wrote to you and requested to know whether or not it was your desire to proceed to trial in your case before Judge Marutani since the Commonwealth had indicated that you had failed to cooperate with your undercover operation. At the time of the hearing on your alleged failure to cooperate you indicated it was your desire to go to trial. The matter is now pending waiting your decision. Please contact my office as soon as possible so that we may proceed with the case." (PCHA Hearing 7/1/80, N.T. 46-47).
Appellant testified that he received the letters and responded to them by telephone calls placed from the law library in Holmesberg prison. (PCHA Hearing 7/1/80, N.T. 22-23). The PCHA court, after evaluating the testimony, resolved the credibility issue in favor of trial counsel, It is well-settled that the credibility of witnesses in PCHA proceedings
[ 321 Pa. Super. Page 451]
is exclusively within the province of the hearing court. Commonwealth v. Riddick, 492 Pa. 430, 424 A.2d 1266 (1981); Commonwealth v. Alston, 473 Pa. 40, 373 A.2d 741 (1977). Moreover, in reviewing the PCHA court's determination, we are constrained from engaging in a de novo evaluation of testimony. Commonwealth v. Clayton, 496 Pa. 492, 437 A.2d 1147 (1981). The record before us supports the PCHA court determination. According, we do not find trial counsel ineffective for failing to file a motion to withdraw the plea prior to sentencing.
With respect to trial counsel's failure to file a post-sentence petition to withdraw the plea, we preliminarily note that there is "no requirement in our law that every attorney who has represented a criminally accused during a guilty plea proceeding file after its acceptance a petition to withdraw the plea." Commonwealth v. Ford, 491 Pa. 586, 593, 421 A.2d 1040, 1043 (1980). If a post-sentence petition to withdraw the guilty plea "can be said to have been a fruitless act, trial counsel will not be held ineffective for failing to file such a petition." Id., 491 Pa. at 594, 421 A.2d at 1044.
It is firmly established that the standard for granting a post-sentence petition to withdraw a guilty plea requires a showing in the order of "manifest injustice." Commonwealth v. Shaffer, 498 Pa. 342, 446 A.2d 591 (1982); Commonwealth v. Starr, 450 Pa. 485, 301 A.2d 592 (1973). A showing of "manifest injustice" would occur when the criminally accused demonstrates that the plea was not voluntary. Commonwealth v. Shaffer, supra; Commonwealth v. Starr, supra. Thus, in determining whether trial counsel's failure to file a post-sentence petition constitutes ineffectiveness we must address whether appellant's plea was tendered involuntarily.*fn4
[ 321 Pa. Super. Page 452]
In analyzing this question we are aided by an extensive record, which includes the PCHA hearing testimony of appellant and trial counsel, the PCHA court opinion, the transcript of the guilty plea colloquy, the transcript of the June 22, 1977 hearing, and the opinion of the trial and sentencing judge. At the PCHA hearing, appellant was given the opportunity to present reasons to justify the withdrawal of his plea. The PCHA court found that appellant tendered his plea voluntarily as a matter of fact and concluded as a matter of law that the plea was valid. We concur with the PCHA court finding.
The guilty plea colloquy conducted by the trial court was adequate and extensive. Appellant was advised that he would receive a sentence of probation provided he cooperated with the named drug officers (Guilty Plea Colloquy 10/7/76, N.T. 7-9). He understood that imposition of his sentence was to be deferred (Guilty Plea Colloquy 10/7/76, N.T. 11). Appellant was fully advised that his failure to cooperate could merit imposition of a maximum sentence (Guilty Plea Hearing 10/7/76, N.T. 9-10). Appellant understood he could withdraw his plea in the event that the Commonwealth believed that he was not cooperative and the trial judge determined that he was. (Guilty Plea Colloquy 10/7/76, N.T. 10-11). At the hearing of June 22, 1977, the trial judge found that appellant had utterly failed to
[ 321 Pa. Super. Page 453]
cooperate and proceeded to impose sentence.*fn5
From the foregoing, we are convinced the plea was tendered voluntarily and consequently, agree with the PCHA court's determination that appellant failed to evidence a showing to correct a "manifest injustice." See, Commonwealth v. Shaffer, supra; Commonwealth v. Starr, supra. As such, we find that trial counsel was not ineffective for having failed to file a motion to withdraw which would have been fruitless.*fn6 Commonwealth v. Ford, supra.
[ 321 Pa. Super. Page 454]
Appellant next asserts that trial counsel was ineffective for failing to raise all possible issues in the prior direct appeal to this Court. Appellant did not raise this issue either in his amended PCHA petition or at the PCHA proceeding and it is therefore waived. Commonwealth v. Zillgitt, supra. Even if this issue had not been waived, all contentions alleged therein lack merit.
Appellant contends that trial counsel failed to argue in his direct appeal an issue with respect to the sufficiency of the evidence, failed to raise the issue of whether the trial court advised him of his right to withdraw his guilty plea and failed to attack his own ineffectiveness on direct appeal. With respect to the first claim, trial counsel cannot be deemed ineffective since, from a guilty plea, an accused may challenge only the voluntariness of the plea, the legality of the sentence imposed and the competency of counsel. Commonwealth v. Czapla, 287 Pa. Super. 335, 430 A.2d 313 (1981). With respect to the second claim, the trial court did properly advise appellant of his right to withdraw his plea. With respect to the third claim, it is a frivolous argument since trial counsel was not ineffective or in the alternate, cannot be expected to raise his own ineffectiveness. Commonwealth v. Dancer, 460 Pa. 95, 100, 331 A.2d 435, 438 (1975). Since counsel cannot be deemed ineffective for failing to raise a meritless claim, Commonwealth v. Roach, 479 Pa. 528, 388 A.2d 1056 (1978), this ground for establishing a claim of ineffectiveness must fail.
Lastly, appellant contends the trial court failed to advise him of his right to withdraw his plea at the June 22, 1977 hearing, when it determined that he failed to cooperate.
[ 321 Pa. Super. Page 455]
It was admitted by appellant at the October 7, 1976 guilty plea colloquy, that he was apprised of his right to withdraw his plea as a matter of right within seven days. (Guilty Plea Colloquy Hearing 10/7/76, N.T. 47, Appellant's brief, p. 30). It is also clear that appellant was given the right to withdraw the guilty plea in the event the Commonwealth believed he was not cooperative and the trial judge determined that he was. (Guilty Plea Colloquy Hearing 10/7/76, N.T. 10-11). Appellant claims the trial court was again required to advise him of the right to withdraw his plea at the June 22nd hearing. Appellant's claim is premised on a mischaracterization of the June hearing as being a continuance of the guilty plea colloquy and, in effect, is a rephrasing of his contention that his plea was tendered involuntarily. Further, appellant mischaracterizes the role played by the trial court in the entering of the plea.
At the guilty plea colloquy, it was made patently clear, with appellant's consent, that he would receive a recommended sentence of probation in exchange for his plea provided he cooperate with the named narcotics officers. Appellant was advised that his failure to cooperate with the officers could result in imposition of the maximum sentence. Imposition of sentence at the guilty plea colloquy was deferred until January 31, 1977, in order to determine whether appellant, in fact, would cooperate as promised.*fn7 (Guilty Plea Hearing 9/7/76, N.T. 46). At the hearing of June 22, 1977, the trial court determined that appellant had failed to abide by the plea agreement.*fn8 Pre-sentence reports were ordered and the date for sentencing was then set for August 25, 1977. At the sentencing hearing, appellant was apprised of his right to appeal the judgment of sentence.*fn9
[ 321 Pa. Super. Page 456]
(Sentencing Hearing 8/25/77, N.T. 134).
It is obvious to this Court that the trial court at the June 22nd hearing was not required to apprise appellant of his right to withdraw his plea either as a matter of right or under the terms of the plea agreement. The June 22nd hearing was not a continuance of the guilty plea colloquy. Appellant had been given the opportunity to withdraw the guilty plea within seven days after the colloquy but failed to do so. And by failing to cooperate, appellant did not have the right under the terms of the plea agreement to withdraw the plea.
The trial court had accepted the plea agreement and at all times abided by its terms. After the trial court's determination that appellant had not cooperated, the trial judge refused to permit the withdrawal of the plea. It was at this time that the trial court was not bound by the conditional term of probation and was then permitted to impose sentence.*fn10