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[U] Commonwealth v. Bertolini

Superior Court of Pennsylvania

September 24, 2013



Appeal from the PCRA Order December 12, 2012 In the Court of Common Pleas of Wayne County Criminal Division at No(s): CP-64-CR-0000474-2007




Anthony Thomas Bertolini appeals pro se from the December 12, 2012 order denying his first PCRA petition. We affirm.

On January 28, 2008, Appellant entered guilty pleas to two counts of possession with intent to deliver ("PWID") (cocaine). The guilty pleas stem from Appellant's participation in a series of controlled drug transactions that occurred during July and August 2007 in Damascus Township, Pennsylvania. The Commonwealth outlined the factual basis of the guilty pleas as follows:

[O]n July 3rd, 2007 [and] July 8, 2007 . . . the Pennsylvania State Police using a confidential informant made [two] buys of cocaine from the Defendant. The first one was at his trailer. They paid a hundred dollars, they got 1.4 grams of cocaine. The second one on July 8, 2007, was again at his trailer. They paid a hundred dollars and they got cocaine — 1.2 grams. . . .

N.T., Guilty Plea, 1/28/06, at 2.[1] Following an oral guilty plea colloquy and confirmation of Appellant's execution of a written plea colloquy, the trial court accepted Appellant's guilty plea.

On March 12, 2008, the trial court imposed two concurrent terms of twenty-seven to sixty months imprisonment. While Appellant failed to file a direct appeal, on March 9, 2009, he timely filed a pro se PCRA petition wherein he asserted that his guilty plea was unlawfully induced, raised a nonspecific constitutional violation, and leveled several allegations of plea counsel's ineffective assistance. As it relates to the ineffective assistance of trial counsel, the PCRA petition alleged 1) counsel misrepresented facts and withheld information; 2) counsel lied to defendant to induce the guilty plea, 3) counsel failed to file pretrial motions, consolidate the charges with another proceeding, or file a motion for reconsideration, and 4) counsel willingly accepted the Commonwealth's version of the facts without performing an independent investigation. See PCRA Petition, 3/9/09, at 2-3. The PCRA court appointed Oressa Campbell, Esquire, to represent Appellant during the post-conviction proceedings. However, Attorney Campbell did not file an amended PCRA petition, and on August 2, 2010, Appellant filed a pro se motion to appoint substitute counsel based upon undisclosed irreconcilable differences between him and Attorney Campbell. Four days later, Attorney Campbell filed a thorough no-merit letter and petition to withdraw from representation pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc). On August 10, 2010, the PCRA court granted Attorney Campbell's' petition and permitted her to withdraw.[2]

There was no further activity on the PCRA petition until November 19, 2012, when the PCRA court issued an "opinion, order, and notice of intent to dismiss pursuant to Pa.R.Crim.P. 907." Within the opinion, the PCRA court outlined its independent review of the record and confirmed that it had allowed Attorney Campbell to withdraw from representation. Appellant did not file a response to the Rule 907 notice. Instead, on November 29, 2012, Appellant filed a purported pro se amended petition pursuant to Pa.R.Crim.P. 905(A), wherein he raised novel bases for PCRA relief including, inter alia, allegations that trial counsel lied to him in order to induce the guilty plea and that she failed to file a direct appeal or motion for reconsideration. Significantly, Appellant did not assert that Attorney Campbell provided ineffective assistance during the PCRA proceedings. Thereafter, on December 12, 2012, the PCRA court dismissed Appellant's PCRA petition. This pro se appeal followed. Appellant timely filed a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925 (b). He presents five issues for our review, which we restate for clarity as follows:

1. Did the PCRA court err in permitting Attorney Campbell to withdraw from representation before it addressed Appellant's motion for substitute counsel?
2. Did Attorney Campbell provide ineffective assistance in failing to communicate with Appellant when her actions prevented Appellant from articulating his claim that the guilty plea was induced by trial counsel's failure to explain all of the elements of PWID?
3. Did trial counsel induce Appellant to plead guilty by failing to inform him of the Commonwealth's burden of proof to establish the elements of PWID beyond a reasonable doubt?
4. Did the trial court err in accepting the guilty plea where the record was devoid of physical evidence to prove PWID beyond a reasonable doubt?
5. Did trial counsel provide ineffective assistance in failing to perform a proper investigation and preventing Appellant from raising a defense to the charges?

Appellant's brief at 4-5.

"Our standard of review in an appeal from the grant or denial of PCRA relief requires us to determine whether the ruling of the PCRA court is supported by the record and is free from legal error." Commonwealth v. Lesko, 15 A.3d 345, 358 (Pa. 2011).

This review is limited to the findings of the PCRA court and the evidence of record. Id. We will not disturb a PCRA court's ruling if it is supported by evidence of record and is free of legal error. Id. This Court may affirm a PCRA court's decision on any grounds if the record supports it. Id. Further, we grant great deference to the factual findings of the PCRA court and will not disturb those findings unless they have no support in the record. Commonwealth v. Carter, 21 A.3d 680, 682 (Pa.Super. 2011). However, we afford no such deference to its legal conclusions. Commonwealth v. Paddy, 609 Pa. 272, 15 A.3d 431, 442 (2011); Commonwealth v. Reaves, 592 Pa. 134, 923 A.2d 1119, 1124 (2007). Where the petitioner raises questions of law, our standard of review is de novo and our scope of review plenary. Commonwealth v. Colavita, 606 Pa. 1, 993 A.2d 874, 886 (2010).

Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa.Super. 2012).

At the outset, we observe that the second and fourth issues listed in Appellant's statement of questions involved are waived. First, as it relates to Attorney Campbell's stewardship during the PCRA proceedings, the complaint is waived due to Appellant's failure to raise the assertion in response to the PCRA court's Rule 907 notice. In Ford, id. at 1198, we explained, "when counsel files a Turner/Finley no-merit letter to the PCRA court, a petitioner must allege any claims of ineffectiveness of PCRA counsel in a response to the court's notice of intent to dismiss." See also Commonwealth v. Rykard, 55 A.3d 1177, 1186 (Pa.Super. 2012), ("Pursuant to [Commonwealth v. Pitts, 981 A.2d 875 (2009)], a petitioner waives issues of PCRA counsel's effectiveness regarding Turner/Finley requirements if he declines to respond to the PCRA court's notice of intent to dismiss."). Herein, Appellant not only failed to file a response to the PCRA Court's Rule 907 notice, but he also failed to include the assertion in his pro se amended PCRA petition filed after the court issued 907 notice. Hence, Appellant never leveled the allegations before the PCRA court. Accordingly, while we will review Appellant's contention that the PCRA court erred in permitting Attorney Campbell to withdraw pursuant to Turner and Finley, we cannot address Appellant's independent allegation of ineffective assistance.

Likewise, we do not confront the merits of Appellant's fourth issue because he failed to assert that issue in his PCRA petition. Simply stated, if an issue is not raised in the PCRA petition, it cannot be considered on appeal.[3] See Paddy, supra at 466 n.21 ("We cannot consider issues not raised in the PCRA court"); Commonwealth v. Wallace, 724 A.2d 916, 921 n.5 (1999); (Pa.R.A.P. 302).

Next, we address the first of the three claims that are properly before this Court. Appellant argues that the PCRA court erred in granting Attorney Campbell's request to withdraw pursuant to Turner and Finley before addressing the merits of his motion for substitute counsel. We disagree.

Initially, we note that, despite the manner that Appellant elected to phrase this argument, he does not challenge the procedural aspects of the trial court's actions in addressing counsel's subsequently filed motion rather than confronting his motion for substitute counsel. Instead, Appellant asserts the actual merits of his motion for substitute counsel and invokes Attorney Campbell's' effectiveness during the PCRA proceedings as the reason that he sought to request substitute counsel. However, as we previously discussed, since Appellant did not raise Attorney Campbell's effectiveness in response to the Rule 907 notice, we cannot address the merits of those claims herein.

Moreover, as we highlighted in footnote two, supra, the PCRA court's order permitting counsel to withdraw pursuant to Turner and Finley, effectively rendered his motion to appoint substitute counsel moot. The fact the PCRA court considered the dispositive motion out of sequence is not tantamount to legal error. In addition, to the extent that Appellant's brief can be interpreted as challenging the procedural aspects of the PCRA court's order permitting Attorney Campbell to withdraw, our review of the certified record sustains the propriety of that order.

In Pitts, supra at 876 n.1, our Supreme Court explained that the procedure for withdrawal of court-appointed counsel in collateral attacks on criminal convictions pursuant to Turner and Finley requires independent review of the record by competent counsel. According to the Supreme Court,

Such independent review requires proof of:

1. A "no-merit" letter by PCRA counsel detailing the nature and extent of his review;
2. The "no-merit" letter by PCRA counsel listing each issue the petitioner wished to have reviewed;
3. The PCRA counsel's "explanation", in the "no-merit" letter, of why the petitioner's issues were meritless;
4. The PCRA court conducting its own independent review of the record; and
5. The PCRA court agreeing with counsel that the petition was meritless.

Id. at n.1.

Herein, Attorney Campbell prepared a no-merit letter that 1) detailed the nature of her review; 2) delineated the issues Appellant sought to raise in his PCRA petition; and 3) explained why the issues are meritless. Moreover, Attorney Campbell mailed Appellant a copy of her no-merit letter and advised him of his right to proceed pro se or with privately retained counsel in the event the request to withdraw was granted. See Commonwealth v. Widgins, 29 A.3d 816, 818-819 (Pa.Super. 2011). Thus, Attorney Campbell has complied with the procedural dictates outlined in Turner and Finley. Thereafter, the PCRA court independently examined the merits of Appellant's issues and concluded that the petition was meritless.[4] As Attorney Campbell and the PCRA court substantially complied with the procedure our Supreme Court's outlined in Pitts, the order granting counsel's request for relief is sound procedurally.

Having found that Attorney Campbell's withdrawal from representation was procedurally proper, we address collectively Appellant's two assertions relating to plea counsel's alleged ineffective assistance. Appellant contends that his guilty plea was induced by counsel's ineffectiveness.

Our Supreme Court recently reiterated the applicable legal principles relating to the right to constitutionally effective counsel as follows:

Appellant may only obtain relief if [he] pleads and proves by a preponderance of the evidence that [his] conviction resulted from ineffective assistance of counsel that, under the circumstances, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place. See 42 Pa.C.S. § 9543(a)(2)(ii). The Pennsylvania test for ineffectiveness is, in substance, the same as the two-part performance-and-prejudice standard set forth by the United States Supreme Court, see Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984), although this Court has divided the performance element into two sub-parts dealing with arguable merit and reasonable strategy. Thus, to succeed on an ineffectiveness claim, a petitioner must establish that: the underlying legal claim has arguable merit; counsel had no reasonable basis for her action or inaction; and the petitioner suffered prejudice as a result. See Commonwealth v. Pierce, 515 Pa. 153, 158–60, 527 A.2d 973, 975–76 (1987). To demonstrate prejudice, the petitioner must show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694, 104 S.Ct. at 2068; accord Commonwealth v. Cox, 603 Pa. 223, 243, 983 A.2d 666, 678 (2009). A reasonable probability is a probability sufficient to undermine confidence in the outcome of the proceeding. See Commonwealth v. Ali, 608 Pa. 71, 86– 87, 10 A.3d 282, 291 (2010). No relief is due, however, on any claim that has been waived or previously litigated, as those terms have been construed in the decisions of this Court. See 42 Pa.C.S. § 9543(a)(3).

Commonwealth v. King, 57 A.3d 607, 613 (Pa. 2012).

As it relates to the entry of a guilty plea, allegations of plea counsel's ineffectiveness will not form a basis for relief unless the alleged ineffectiveness caused the defendant to enter the plea involuntarily or unknowingly. See Commonwealth v. Anderson, 995 A.2d 1184, 1192 (Pa.Super. 2010). Voluntariness is gauged in terms of "whether counsel's advice was within the range of competence demanded of attorneys in criminal cases." Id. (quoting Commonwealth v. Moser, 921 A.2d 526, 531 (Pa.Super. 2007)). In assessing the sufficiency of a guilty plea colloquy, we review the totality of the circumstances and the entire record, including plea counsel's testimony during the PCRA hearing. Commonwealth v. Morrison, 878 A.2d 102, 107 (Pa.Super. 2005) (en banc).

The crux of Appellant's complaints are that plea counsel's ineffectiveness in failing to inform him of the Commonwealth's burden of proof to establish the elements of PWID beyond a reasonable doubt and by failing to perform a proper investigation and raise a defense to the charges caused him to enter the guilty plea unknowingly. Appellant continues that counsel refused to confer with him and disregarded his confidentiality concerns. He also complains that counsel did not permit him to explain his account of the episodes. Thus, highlighting his belief that "counsel's loyalties were with the government case and not on his defense, " Appellant posits that due to counsel's actions and inactions, he did not believe an alternative existed other than accepting the guilty plea. Appellant's brief at 13.

Herein, the certified record belies Appellant's contention that his plea was induced by counsel's ineffectiveness. In contrast to all of Appellant's protestations, the record reveals that Appellant's plea was knowing, intelligent and voluntary.

In order to ensure a voluntary, knowing, and intelligent plea, the trial court is required to make the following inquiries:

1) Does the defendant understand the nature of the charges to which he or she is pleading guilty or nolo contendere?
2)Is there a factual basis for the plea?
3)Does the defendant understand that he or she has the right to a trial by jury?
4) Does the defendant understand that he or she is presumed innocent until found guilty?
5)Is the defendant aware of the permissible ranges of sentences and/or fines for the offenses charged?
6) Is the defendant aware that the judge is not bound by the terms of any plea agreement tendered unless the judge accepts such agreement?

Commonwealth v. Pollard, 832 A.2d 517, 522-523 (Pa.Super. 2003); Comment to Pa.R.Crim.P. 590(A)(2).

The following exchange occurred during the guilty plea colloquy:
Mr. Robinson: [Appellant], I now show you a document entitled Written Guilty Plea Colloquy. Are these your initials at the bottom of these ten pages?
[Appellant]: Yes, sir.
Mr. Robinson: And did you sign page number ten?
[Appellant]: Yes, sir.
Mr. Robinson: Did you go over this document with your lawyer?
[Appellant]: Yes, sir.
Mr. Robinson: Was she able to answer any questions that you had?
[Appellant]: Yes, sir.
Mr. Robinson: Are you satisfied with your lawyer?
[Appellant]: Yes, sir.
Mr. Robinson: Any threats or promises been made to you to get you to plead guilty?
[Appellant]: No, sir.
Mr. Robinson: Has your lawyer forced you to plead guilty?
[Appellant]: No, sir.
Mr. Robinson: You understand that you could have a jury trial here?
[Appellant]: Yes, sir.
Mr. Robinson: And you understand the burden of proof would be on the Commonwealth to prove you guilty beyond a reasonable doubt?
[Appellant]: Yes, sir.
Mr. Robinson: Are you under the influence of any drugs or alcohol here today?
[Appellant]: No, sir.
Mr. Robinson: You realize that by pleading guilty to Count number 4, which is Possession of Cocaine with Intent to Deliver, that's an ungraded felony. And a Judge could sentence you up to five years in jail and up to a $15, 000.00 fine?
[Appellant]: Yes, sir.
Mr. Robinson: And Count number 5, is also Possession of Cocaine with the Intent to Deliver; an ungraded felony. And the Judge could sentence you up to five years in jail and up to a $15, 000.00 fine?
[Appellant]: Yes, sir.
Mr. Robinson: And he could, if he wished to do so, add those together or run them consecutively and you could be sentenced up to ten years in jail and up to a $30, 000.00 fine? [Appellant]: Yes, sir.
Mr. Robinson: And that would be in addition to any other sentence you are now serving; do you understand that? [Appellant]: Yes. Yes, sir.
Mr. Robinson: No further questions, Your Honor.
The Court: Attorney Edwards, do you have any questions for your client concerning the colloquy or anything else about the plea?
Ms. Edwards: Very briefly. [Appellant], you and I discussed this morning the open plea agreement that the District Attorney just spoke about that there is no deal in regards to the sentence with the District Attorney; is that correct?
[Appellant]: Yes, ma'am.
Ms. Edwards: And you and I also reviewed your prior record score, the gravity score of these two charges, and the possible sentencing guideline range that the Judge may be inclined to impose sentencing on; is that correct?
[Appellant]: Yes, ma'am.
Ms. Edwards: Do you have any further questions for me?
[Appellant]: No.
Ms. Edwards: Nothing further, Your Honor.
The Court: Very well, then.
Mr. Robinson: I move for the admission of the colloquy. The Court: Thank you and we'll accept the plea. It's admitted.

N.T. 1/28/08, at 3-6.

Appellant is bound by his testimony during the guilty plea colloquy. Commonwealth v. Yeomans, 24 A.3d 1044, 1047 (Pa.Super. 2011). In Yeomans, we explained the relevant principle as follows:

The longstanding 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.

Id. (quoting Pollard, supra at 523–24).

Herein, Appellant testified that he 1) understood the nature of the two PWID offenses that underlie his guilty plea; 2) accepted the Commonwealth's recitation of the factual basis for the plea; 3) understood his right to a jury trial; 4) knew that the Commonwealth had to satisfy a beyond-a-reasonable doubt standard of proof to convict him; 5) was aware of his potential sentencing exposure for each of the two counts of PWID; 6) and understood that no agreement existed and that the judge could impose consecutive sentences if he desired. In addition, as it relates to the allegations herein, Appellant testified that he was satisfied with plea counsel's representation, that the pleas were not the result of any threats or promises, and that counsel was not forcing him to plead guilty. Appellant also confirmed that he read the written guilty plea colloquy, reviewed it with plea counsel, initialed each page and signed the final page certifying, inter alia, that he answered the questions truthfully, and admitted his guilt.

The written colloquy further verified Appellant's testimony regarding the pertinent aspects to ensure a voluntary, knowing, and intelligent plea. For instance, Appellant verified that counsel explained to him the elements of PWID, the concomitant rights he relinquished by forgoing a jury trial, and that his appellate rights would be significantly restricted following a guilty plea. See Written Plea Colloquy, 1/28/08, at 2-3, 4, 5.

As the certified record belies both Appellant's general assertion that plea counsel devoted insufficient attention to his defense prior to the plea and his contention that he entered the plea involuntary or unknowingly, Appellant's attempt to invoke allegations of plea counsel's ineffectiveness in order to withdraw his guilty plea is unavailing.

Order affirmed.

Judgment Entered.

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