Appeal from the Order of May 10, 2010, in the Court of Common Pleas of Dauphin County, Criminal Division, at No.: CP-22-CR-0005172-2007
The opinion of the court was delivered by: Bowes, J.:
BEFORE: BOWES, OLSON, and COLVILLE,*fn1 JJ.
Junius Maurice Ford appeals from the order entered May 10, 2010, in which the court denied his PCRA petition. After careful review, we affirm. A prior panel of this Court articulated the facts of this case as follows.
In November of 2007, Appellant was arrested and charged in connection with a robbery that occurred in the parking lot of Harrisburg Dairies. The record reflects that in the early morning hours of November 12, 2007, Brandon Clarke, a dairy employee arriving for work, discovered Appellant sitting in a company truck, eating Clarke's lunch. Clarke asked Appellant what he was doing sitting [in] his company truck, but Appellant did not reply. After a few moments, Appellant exited the truck and walked across the parking lot. Clarke testified that he watched as Appellant engaged another dairy employee, Dale Haldeman, in what appeared to be normal conversation.
Haldeman, the victim herein, testified that he had just arrived in the company parking lot and was standing next to the passenger door of his pick-up truck when Appellant approached and asked for a ride. Haldeman refused. Undeterred, Appellant repeated his request, and Haldeman again refused. Standing within one foot of Haldeman, Appellant, apparently intoxicated, then demanded that Haldeman empty his pockets. Now fearing that he was being mugged, Haldeman emptied his pockets, and gave Appellant his wallet, keys, and two cell phones. Appellant did not leave, however, and instead repeatedly warned Haldeman that if his wallet did not contain $50.00 he would kill him. Appellant then attempted to punch Haldeman, but the punch was deflected by the truck door and the victim. Appellant stumbled backward, but once again approached the victim in an aggressive manner. Haldeman pushed Appellant and told him to "get out of here."
At that time, another employee arrived in the lot. Haldeman told that employee to call 911. Haldeman followed Appellant for about one block and watched as Appellant dropped Haldeman's belongings in an alleyway between the employee and company truck parking lots.
About 30 minutes later, as Haldeman stood in that alleyway with a group of about six men, Appellant reappeared. Apparently not recognizing his victim, Appellant staggered in a drunken manner toward the group and asked another man for a ride. That man likewise refused and Appellant started to walk away.
At that moment, a police car responding to the 911 call arrived. Officer Russell Winder noted that Appellant matched the description of the assault/robbery suspect. Appellant identified himself to officers as Troy Ford, and explained that he was merely asking the men for a ride. The officer took Appellant into custody for public drunkenness. Appellant ultimately was charged with robbery, terroristic threats, simple assault, false identification to law enforcement authority, and public drunkenness.
Commonwealth v. Ford, 987 A.2d 813 (Pa.Super. 2009) (unpublished memorandum, at 1-4) (citations omitted). Thereafter, the Commonwealth offered Appellant a ten-to-twenty-year sentence in exchange for his guilty plea to robbery. The Commonwealth specifically informed Appellant's trial counsel, a Dauphin County public defender, that it would seek imposition of a twenty-five-year minimum sentence pursuant to 42 Pa.C.S. § 9714, based on Appellant's two prior convictions for crimes of violence. Counsel relayed this information to Appellant, who declined the offer. Both counsel and her supervisor subsequently met with Appellant and again advised him of the possible twenty-five-year minimum sentence. Appellant informed his attorney that he did not want to accept a plea.
Three days prior to Appellant's scheduled jury trial, he expressed reservations about proceeding before a jury. Appellant's attorney advised him that he could either request a bench trial or accept the plea offer instead of presenting his case to the jury. Appellant sought a bench trial and, during the jury trial waiver colloquy, the Commonwealth explained to Appellant that he faced a maximum sentence of twenty years incarceration, and not the possibility of a twenty-five-year minimum sentence under 42 Pa.C.S. § 9714(a)(2). Counsel chose not to correct the Commonwealth in this regard.
Following the bench trial, the court adjudicated Appellant guilty of the robbery charge.*fn2 The court was then made aware of the applicable three- strike statute and sentenced Appellant to twenty-five to fifty years imprisonment. Appellant did not file a direct appeal, but timely sought PCRA relief in the nature of reinstatement of his direct appeal rights nunc pro tunc. The PCRA court, prior to appointing counsel and with the agreement of the Commonwealth, reinstated Appellant's direct appeal rights. The court then appointed Appellant's trial counsel to represent him during his direct appeal and issued an order pursuant to Pa.R.A.P. 1925(b). Counsel filed a statement of intent to file an Anders/McClendon brief. On appeal, counsel filed a petition to withdraw and Anders brief. With one judge dissenting, this Court determined that Appellant's appeal was wholly frivolous and permitted counsel to withdraw. The dissent opined that there was "a legitimate question as to whether Appellant's actions warranted a first- degree felony robbery conviction, and therefore whether he should have been subject to a 'third strike' sentence." Commonwealth v. Ford, 987 A.2d 813 (Pa.Super. 2009) (unpublished dissenting memorandum at 1).
Appellant filed a timely PCRA petition, and the court appointed a new attorney. PCRA counsel initially sought to withdraw on the basis that Appellant had no meritorious issues. The PCRA court denied that motion and scheduled an evidentiary hearing on the issue of whether trial counsel was ineffective for failing to object to the mischaracterization of the maximum sentence Appellant could receive during his jury-trial waiver colloquy.
At the evidentiary hearing, trial counsel testified that Appellant was well aware that he could be sentenced to twenty-five to fifty years incarceration and that she chose not to inform the court during the jury trial waiver colloquy of the applicable sentencing provision after discussing the issue with the district attorney. Specifically, the district attorney believed that the trial court's judgment might be affected if the court was aware that Appellant was previously convicted of two prior crimes of violence. Trial counsel's supervisor also testified that he and Appellant's attorney informed Appellant of the applicable three-strike mandatory sentencing scheme. Appellant, however, testified that trial counsel never relayed any plea offer to him and denied that any attorney informed him that he would be subject to a twenty-five-year minimum sentence. The PCRA court deemed Appellant's testimony incredible and denied relief.
Subsequently, initial PCRA counsel filed a notice of appeal that was one day late. A panel of this Court quashed the appeal as untimely and Appellant filed a pro se petition for allowance of appeal asserting that PCRA counsel was ineffective in failing to file a timely appeal. PCRA counsel filed a motion to withdraw before the PCRA court based on the allegation of her ineffectiveness. The Supreme Court, under the impression that PCRA counsel was permitted to withdraw, remanded to the PCRA court "for a determination of representation." See Supreme Court Per Curiam Order, 81 MAL 2011, 3/15/2011. The High Court further instructed that Appellant could request nunc pro tunc relief from the May 10, 2010 order within thirty days of the PCRA court's determination regarding counsel's status. Id.
The PCRA court appointed current counsel who timely filed this nunc pro tunc PCRA appeal. Counsel also filed a Pa.R.A.P. 1925(b) concise statement and the PCRA court authored its Pa.R.A.P. 1925(a) opinion.
Appellant raises two issues on appeal.
1. Whether Appellant received ineffective assistance of trial counsel when said counsel failed to object to the Commonwealth's misrepresentation of the maximum sentence which Appellant could receive and thereby allowed Appellant to ...