Appeal from the PCRA Order April 23, 2012 In the Court of Common Pleas of Franklin County Criminal Division at No(s): CP-28-CR-0001269-2007, CP-28-CR-0001265-2007
BEFORE: SHOGAN, J., OTT, J., and COLVILLE, J. [*]
Samuel T. Smith brings this consolidated appeal from the orders entered on April 23, 2012, in the Court of Common Pleas of Franklin County, that denied, following an evidentiary hearing, his petitions filed pursuant to the Pennsylvania Post Conviction Relief Act (PCRA), §§ 9541–9545. Smith contends plea/appellate counsel was ineffective for failing to assert that the trial court erred in denying Smith's pre-sentence request to withdraw his second guilty plea on direct appeal. Based upon the following, we affirm.
The PCRA Court has aptly summarized the facts and procedural history underlying this appeal, as follows:
Samuel T. Smith was charged in criminal actions 1265 and 1269 of 2007, each action containing one count of robbery, conspiracy to commit robbery, simple assault, and theft by unlawful taking.
[Smith] filed an omnibus pretrial motion containing a motion to suppress a confession he made to police. A hearing on the motion to suppress was held on January 4, 2008. [Smith] testified that his confession was given while he was extremely intoxicated after drinking vodka and that he could not recall even being at the state police barracks. The interviewing trooper testified that [Smith] exhibited no signs of intoxication and seemed completely coherent. The Court denied the motion to suppress finding the trooper's testimony credible.
On February 15, 2008, [Smith] entered a plea of guilty [in each case]. On April 2, 2008, the day of sentencing, he requested to withdraw his plea, and the Court granted that request. [On April 29, 2008, the trial court granted the Commonwealth's motion to consolidate the cases for trial.] On July 3, 2008, [Smith] appeared for a pre-trial conference. On July 14, 2008, a jury was selected. Due to a late notice of intent to present an alibi witness, the matter was rescheduled for the January 2009 trial term.
[On July 30, 2008, upon Smith's request for appointment of new counsel, the trial court determined there was a breakdown in communications between the Public Defender's office and Smith, and appointed James Reed, Esquire to represent Smith. See Order, 7/30/2008.]
On January 5, 2009, one week before trial, [Smith], again, entered a plea of guilty. On January 21, 2009, the day of sentencing, [Smith] informed his attorney that he wished to withdraw his plea. His attorney, James Reed, informed him that he could only withdraw the plea if he was asserting innocence. When called before the Court for sentencing, Mr. Reed informed the Court that [Smith] wished to withdraw his plea because he believed the prosecution's case was based upon a coerced confession. [Smith] then interjected and said that he wished to withdraw his plea because he was innocent. The Court listened to a prepared statement by [Smith]. [Smith] discussed how intoxicated he was the day he spoke to police and that he did not recall being interviewed. He also mentioned that he was under the effects of a hallucinogen called "hydro" — he did not mention vodka as he previously testified at the suppression hearing. He also did not mention his innocence. The court rejected [Smith's] request to withdraw his plea and continued with the sentencing.
Mr. Reed filed an appeal to the Superior Court. The only issue on appeal was the ineffectiveness of [Smith's] prior attorney who represented him at the suppression hearing. The Superior Court did not address the merits of the appeal because a proper hearing was not held on the issue and because [Smith] waived his rights to challenge the suppression issue when he entered his plea. The Superior Court affirmed the trial court's ruling. [Commonwealth v. Smith, 990 A.2d 54 (Pa. Super. 2009) (unpublished memorandum)].
On July 20, 2010, [Smith] filed a petition for relief under the Post Conviction Relief Act (PCRA). The Court appointed counsel who filed an Amended Post Conviction Relief Act Petition on May 25, 2010. Counsel withdrew that petition and filed another Amended Petition on September 29, 2010. The Commonwealth filed an answer on December 1, 2010. A hearing on the matter was held on January 19, 2012. …
PCRA Court Opinion, 4/23/2012, at 1–2. Following the evidentiary hearing, the court denied PCRA relief, ...