July 15, 2013
COMMONWEALTH OF PENNSYLVANIA Appellee
SAMUEL T. SMITH Appellant COMMONWEALTH OF PENNSYLVANIA Appellee
SAMUEL T. SMITH Appellant
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, and this appeal followed.
The principles that guide our review are well settled:
Our standard of review is limited to examining whether the PCRA court's findings of fact are supported by the record, and whether its conclusions of law are free from legal error.
Commonwealth v. Busanet, 54 A.3d 35, 45 (Pa. 2012) (citations omitted). Furthermore,
[w]hen an appellant argues that he was deprived of effective assistance of counsel, he must demonstrate, according to Commonwealth v. Pierce[, 527 A.2d 973 (Pa. 1987)], and its progeny: (1) that the underlying claim is of arguable merit; (2) that counsel's performance was unreasonable; and (3) that counsel's ineffectiveness prejudiced defendant.
Commonwealth v. Michael, 755 A.2d 1274, 1277 (Pa. 2000). "[C]ounsel cannot be considered ineffective for failing to assert a meritless claim." Id.
As stated above, Smith alleges counsel was ineffective in failing to challenge the trial court's denial of Smith's pre-sentence request to withdraw his second guilty plea on direct appeal. With regard to the merit of his underlying claim, Smith argues "pre-sentencing requests should be liberally granted, " and it is well established that "'the mere articulation of innocence is a 'fair and just' reason' for withdrawal of a guilty plea." Smith acknowledges this Court's decision in Commonwealth v. Iseley, 615 A.2d 408 (Pa. Super. 1992), appeal denied, 627 A.2d 730 (Pa. 1993), which held that "[a]bsent extraordinary circumstances, , a mere assertion of innocence may not be considered by a reviewing court to be alone a fair and just reason for withdrawal of any second or subsequent guilty plea." Iseley at 412. Smith argues that his pre-sentence request to withdraw his second guilty plea on the grounds he "would like to have an appeal of  suppression, " coupled with his assertion of innocence, demonstrated "extraordinary circumstances." See Smith's Brief at 13. Smith also claims that his statements to the court prior to sentencing served as actual notice to counsel that he wished to raise the trial court's denial of his request on direct appeal.
Applying Iseley, the PCRA Court rejected Smith's request for PCRA relief. The Honorable Douglas W. Herman reasoned:
Here, [Smith] entered a plea of guilty on February 15, 2008 which was accepted by the Court on that date following a colloquy. During that colloquy, [Smith] told the Court the specifics of how he conducted those robberies and admitted his guilt. (Tr. of Proceedings, Feb. 15, 2008, at 5-6). On April 2, 2008, the day on which he was to be sentenced, he requested and was permitted to withdraw that plea. On July 3, 2008, [Smith] appeared in court for his pretrial conference. On July 14, 2008, [Smith] again appeared in court and a jury was selected. The case was continued to the January 2009 term of court. One week prior to jury selection on January 5, 2009, [Smith] again entered a plea of guilty. The plea was again accepted by the Court on that date following a colloquy, and admissions of guilt. [Smith] appeared for sentencing on January 21, 2009. [Smith], through his counsel, informed the Court that he wished to withdraw his guilty plea.
According to the sentencing hearing transcript of January 21, 2009 and the PCRA hearing on [January 19, 2012], the first time the Court, the Commonwealth, and defense counsel became aware of [Smith's] intent to withdraw his plea was on the morning of sentencing. Further, this was also the first time any of the foregoing parties heard [Smith's] assertion of innocence. Indeed, [Smith's] defense counsel, James Reed, was not even aware of the assertion of innocence while he was addressing the Court regarding the withdrawal of the guilty plea, as evidenced in the sentencing transcript. Mr. Reed stated that Mr. Smith had indicated "the central reason why he wants to withdraw his plea is that he believes that the prosecution's case is based on a coerced confession during which he was intoxicated." (Sentencing Hr'g, Jan. 21, 2009 at 2). It was [Smith] who interjected and asserted that he was innocent and did not commit these crimes. (Id. at 3).
We note that pursuant to Iseley and without a showing that there are extraordinary circumstances, we find that [Smith] was not entitled to withdraw his guilty plea based on a bare assertion of innocence. This was his second guilty plea. During the entry of each plea he was counseled, advised of the ramifications of those pleas, and a colloquy was conducted by the Court during which [Smith] testified that he understood his plea and confessed to these crimes. Based upon the Iseley holding, the trial court did not err in rejecting [Smith's] request to withdraw his plea because this was his second guilty plea and he made no showing of "extraordinary circumstances."
By way of further discussion, even if a court were to allow withdrawal of a second guilty plea based upon an assertion of innocence, that assertion should contain some indicia of credibility. Here, Smith's claim that he was innocent was not credible.
We begin by noting that at no point prior to the morning of sentencing on January 21, 2009 did [Smith] assert his innocence — not to his attorney and not to the Court despite appearing before the Court on numerous occasions. His attorney, Mr. Reed, testified at the PCRA hearing that he had never been informed that [Smith] sought to assert his innocence. Mr. Reed testified at the PCRA hearing that prior to sentencing he learned about [Smith's] desire to withdraw his plea. Mr. Reed informed him that the only way he could do that is to assert his innocence. When Mr. Reed and Mr. Smith went before the Court for sentencing, Mr. Reed was still under the impression that. [Smith] sought to withdraw his plea based upon the suppression issue. Mr. Reed testified at the PCRA hearing that when [Smith] corrected him at Sentencing, this was the first time he heard the assertion of innocence. It is easily inferred that [Smith] changed his story after learning this in order to better his odds of withdrawing his plea. This is further supported by reviewing the transcript of the Sentencing Hearing. In pages 3 through 5 of the transcript, [Smith] indicates that he wrote a statement in order to tell the Court why he wants to withdraw his plea. When he tells the Court what he wrote, he speaks only of the issue of suppression and not innocence. Finally, at the PCRA hearing, [Smith] testified that he only asserted his innocence because he wanted to preserve the suppression issue. (See P.C.R.A. Hr'g, Jan. 19, 2012 at 28). Therefore, the issue of withdrawing the plea lacked merit.
This claim for ineffectiveness for failure to raise the plea issue on direct appeal fails because the claim lacked merit, which is a requirement for a claim of ineffectiveness. …
PCRA Opinion, supra, at 5–7. We agree with this analysis.
Smith made no showing of "extraordinary circumstances" by making an assertion of innocence and indicating his dissatisfaction with the court's January 4, 2008, suppression ruling. Further, Smith's statement that he wanted to appeal the denial of his suppression motion undermined his assertion of innocence. See Commonwealth v. Tennison, 969 A.2d 572, 573, 578 (Pa. Super. 2009), appeal denied, 982 A.2d 510 (Pa. 2009) ("[A]n assertion [of innocence] does not divest a judge of discretion to weigh its sincerity according to the totality of circumstances known to the judge[.]"). Accordingly, we adopt the rationale of the PCRA court as set forth above to affirm the court's decision denying Smith PCRA relief.