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[U] Commonwealth v. Lebrun-Williams

Superior Court of Pennsylvania

August 14, 2013



Appeal from the Order entered January 29, 2013, in the Court of Common Pleas of Monroe County, Criminal Division, at No(s): CP-45-CR-0000517-2010, CP-45-CR-0001902-2010.




In these consolidated appeals, Roger Lebrun-Williams ("Appellant") claims that the PCRA court erred by denying his first petition filed pursuant to the Post Conviction Relief Act ("PCRA"). 42 Pa.C.S.A. §§ 9541-46. We affirm.

The pertinent facts and procedural history are as follows: On January 10, 2011, Appellant pled guilty to one count of possession with intent to deliver (heroin) at two separate docket numbers. In return, the Commonwealth agreed to withdraw similar drug charges at three other criminal docket numbers, and to not object to the imposition of concurrent sentences. At docket number CP-45-CR-0001902-10, the plea agreement acknowledged that the Commonwealth would request a five-year mandatory sentence. During the guilty plea hearing, the Commonwealth also agreed to afford Appellant an opportunity to become eligible for the state intermediate punishment program ("SIP"). Sentencing was continued, and Appellant's bail was modified so that he could address outstanding charges in New Jersey.

On June 8, 2011, the Commonwealth filed a motion to revoke bail. Within this motion, the Commonwealth averred that, on May 6, 2011, New Jersey placed Appellant on a four-year period of probation that subsequently was transferred to Pennsylvania. When Appellant reported to Pennsylvania State Parole, he tested positive for opiates during the intake process, and later admitted to using opiates. Because this conduct constituted a bail violation, the Commonwealth sought to revoke Appellant's bail. After an evidentiary hearing at which Appellant admitted to using heroin, the trial court revoked his bail.

Appellant appeared for sentencing on July 19, 2011. At the conclusion of the sentencing hearing, the trial court imposed a sentence at docket CP-45-CR-0001902-10 of the mandatory minimum of five to ten years of imprisonment. At docket CP-0000517-10, the trial court imposed a consecutive sentence of two to four years of incarceration, for an aggregate term of seven to fourteen years of imprisonment. The trial court further noted that Appellant was deemed RRRI eligible. Appellant filed a timely motion to reconsider sentence, which the trial court denied. Appellant did not file a direct appeal.

On August 8, 2012, Appellant filed a pro se PCRA petition, in which he asserted that his trial counsel misrepresented the plea agreement, failed to object to the Commonwealth's breach of its terms, and failed to file a notice of appeal as requested. The PCRA court appointed counsel, and PCRA counsel filed an amended petition raising the same claims. The PCRA court held an evidentiary hearing on January 29, 2013. By order entered that same date, the PCRA court denied Appellant's petition. This timely appeal followed. Both Appellant and the PCRA court have complied with Pa.R.A.P. 1925.

Appellant raises the following issue:
Was it ineffective assistance of counsel to fail to inform Appellant that sentencing was in the discretion of the judge and there was no sentencing agreement?

Appellant's Brief at 4.

In reviewing the propriety of an order granting or denying PCRA relief, an appellate court is limited to ascertaining whether the record supports the determination of the PCRA court and whether the ruling is free of legal error. Commonwealth v. Johnson, 966 A.2d 523, 532 (Pa. 2009). We pay great deference to the findings of the PCRA court, "but its legal determinations are subject to our plenary review." Id. Furthermore, to be entitled to relief under the PCRA, the petitioner must plead and prove by a preponderance of the evidence that the conviction or sentence arose from one or more of the errors enumerated in section 9543(a)(2) of the PCRA. One such error involves the ineffectiveness of counsel.

To obtain relief under the PCRA premised on a claim that counsel was ineffective, a petitioner must establish by a preponderance of the evidence that counsel's ineffectiveness so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place. Id. "Generally, counsel's performance is presumed to be constitutionally adequate, and counsel will only be deemed ineffective upon a sufficient showing by the petitioner." Id. This requires the petitioner to demonstrate that: (1) the underlying claim is of arguable merit; (2) counsel had no reasonable strategic basis for his or her action or inaction; and (3) petitioner was prejudiced by counsel's act or omission. Id. at 533. A finding of "prejudice" requires the petitioner to show "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. Counsel cannot be deemed ineffective for failing to pursue a meritless claim. Commonwealth v. Loner, 836 A.2d 125, 132 (Pa. Super. 2003) (en banc), appeal denied, 852 A.2d 311 (Pa. 2004).

When asserting a claim of ineffectiveness of counsel in the context of a guilty plea, a defendant must show that plea counsel's ineffectiveness induced him to enter the plea. Commonwealth v. Johnson, 875 A.2d 328, 331 (Pa. Super. 2005). This Court has observed:

Because a plea of guilty effectively waives all non-jurisdictional defects and defenses, after sentencing, allegations of ineffectiveness of counsel in this context provide a basis for withdrawal of the plea only where there is a causal nexus between counsel's ineffectiveness, if any, and an unknowing or involuntary plea. The guilty plea hearing becomes the significant procedure under scrutiny. The focus of the inquiry is whether the accused was misled or misinformed and acted under that misguided influence when entering the guilty plea.

Commonwealth v. Flood, 627 A.2d 1193, 1199 (Pa. Super. 1993) (citations omitted).

We have further 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.

Commonwealth v. Pollard, 832 A.2d 517, 523-24 (Pa. Super. 2003) (citations omitted).

In support of his claim, Appellant asserts his guilty plea is invalid because trial counsel failed "to inform [him] that sentencing was at the discretion of the judge and that there was no sentencing agreement." Appellant's Brief at 7. Specifically, Appellant asserts that he was surprised he received consecutive sentences and did not receive an SIP sentence. According to Appellant, "[h]e pled with the understanding that a specific deal had been made, and trusted [trial counsel] that the deal was still good at the time of sentencing." Id. at 9.

Our review of Appellant's responses during the guilty plea colloquy refutes this claim. At the time of his plea, Appellant acknowledged his signature on the written plea colloquy forms, that he understood their contents, and that he had the opportunity to go over them with counsel. See N.T., 1/29/13, at 2-3. Additionally, Appellant acknowledged that no promises other than the plea agreement had been made to him. Id. at 6. When Appellant claimed he received a recommendation for SIP, the trial court responded, "I would have probation determine whether you are eligible for [SIP]. I'm not guaranteeing that you are going to qualify, but I'll have them look into whether you do." Id. at 7. The following exchange subsequently occurred:

THE COURT: Do you understand, although I'm going to have probation determine your eligibility for SIP, that does not guarantee you're going to get SIP, and that any conversations you've had with [trial counsel], or that [trial counsel] may have had with the attorney for the Commonwealth about what your sentence might be, those are not binding on me, I get to make the decision and there are no deals, do you understand that?

Id. at 8-9. Trial counsel then provided a factual basis for each docket, Appellant acknowledged his guilt, and the trial court accepted his plea. Appellant cannot seek post-conviction relief based upon a claim that contradicts these answers. Pollard, supra.

Moreover, at the evidentiary hearing, the PCRA court heard conflicting testimony about whether Appellant was promised a certain sentence in return for his plea. For her part, trial counsel testified that Appellant never told her before sentencing that he wished to withdraw his guilty plea, and did not recall Appellant asking her to file an appeal. See N.T., 1/29/13, at 35-37. According to trial counsel, she had no indication that Appellant wanted to withdraw his guilty plea until he received an unsatisfactory sentence. Id. When asked by the PCRA Court, trial counsel acknowledged that she neither promised Appellant that he would receive concurrent sentences nor ever guaranteed Appellant that he would receive an SIP sentence. Id. at 39.

After hearing this testimony, the PCRA court made the following comments:

I don't find [Appellant's] testimony here today credible, I believe [trial counsel]. [Appellant] was cagey when he sat here. I can tell you that if I had any doubt in my mind when I was colloquying [Appellant] as to whether he understood there was no deal, I would not have accepted his plea. But [Appellant] is a very experienced criminal defendant, he knows the system. And I believe [trial counsel] when she said that - - I think what she just indicated to the Court backs that up. [Appellant's] sophisticated in the ways of the criminal world and the criminal system.
I don't believe that he didn't - - I don't believe for a second when [Appellant] testified that he didn't understand that he could get consecutive sentences, I don't believe [Appellant] for a moment when he says that [trial counsel] never told him that. I don't believe that [Appellant] would not have asked if he had any question or doubt. If he would not have questioned [trial counsel] about that.
And I do find that [trial counsel's] testimony is credible. It's what I recall happening in this case, because this was an unusual case for me. This was the only time in three-plus years that I've been on the bench that I have let somebody out on bail to try to get into the [SIP] program.
I think the true facts to this is [Appellant] is not happy with the sentence that this Court imposed. But I don't think that he's established, for reasons that I've set out, that he wasn't aware of the plea, that he wasn't notified of his rights by [trial] counsel, and I don't think he's established that counsel was ineffective, so his PCRA [petition] is denied.

N.T., 1/29/13, at 41-42.

As a matter of credibility, the PCRA court believed trial counsel's version of the contested facts. We cannot disturb this determination. See Commonwealth v. Harmon, 738 A.2d 1023, 1025 (Pa. Super. 1999) (explaining that when a PCRA court's determination of credibility is supported by the record, it cannot be disturbed on appeal).

In sum, the record reveals that Appellant entered a valid plea; thus his claim of ineffective assistance of counsel with regard to the entry of the plea is devoid of merit. We therefore affirm the PCRA court's order denying Appellant's PCRA petition.

Order affirmed.

Judgment Entered.

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