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[U] Commonwealth v. Reeves

Superior Court of Pennsylvania

February 20, 2014

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
SHANE M. REEVES, Appellant

NON-PRECEDENTIAL DECISION

Appeal from the PCRA Order Entered March 18, 2013, In the Court of Common Pleas of Chester County, Criminal Division, at No. CP-15-CR-0004400-2011.

BEFORE: GANTMAN, SHOGAN and MUSMANNO, JJ.

MEMORANDUM

SHOGAN, J.

Appellant, Shane M. Reeves, appeals pro se from the order denying his petition for collateral relief filed pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. §§ 9541–9546. We affirm.

Pursuant to a negotiated plea agreement, Appellant pled guilty to two counts of possession of a controlled substance with intent to deliver based on the following facts:

[O]n August 18th, 2010 at 6:49 p.m. in Kennett Square Borough, Chester County, Pennsylvania, [Appellant] sold 5.3 grams of cocaine to a confidential informant for $300.
On September 7, 2010 at 7:25 p.m. at Kennett Square Borough, Chester County, Pennsylvania, [Appellant] sold 15.7 grams of cocaine to a confidential informant for $500.

N.T. (Guilty Plea), 5/4/12, at 2.

Appellant completed and signed a written guilty plea colloquy, indicating that his plea was voluntary, knowing, and intelligent. Certified Record No. 9. After conducting an oral colloquy, the trial court accepted Appellant's plea. In compliance with the negotiated agreement, the trial court sentenced Appellant at Count 2 to incarceration for a mandatory term of five to ten years, as well as a mandatory fine of $30, 000.00, and at Count 1, to incarceration for a concurrent term of one to two years. N.T. (Guilty Plea), 5/4/12, at 11–12.

Appellant did not file post-sentence motions or a direct appeal. Rather, he filed pro se the instant petition for collateral relief on August 20, 2012, raising allegations of plea counsel's ineffectiveness and challenging the validity of his plea. Certified Record No. 13. The PCRA court appointed counsel, who filed a petition for leave to withdraw on October 17, 2012, pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988). Certified Record No. 16. On February 6, 2013, the PCRA court gave notice of its intent to dismiss Appellant's PCRA petition pursuant to Pa.R.Crim.P. 907. Appellant filed a response on March 15, 2013, again raising claims of plea counsel's ineffectiveness and challenging his plea. Certified Record No. 21. The PCRA court dismissed Appellant's petition without a hearing on March 18, 2013, and permitted counsel to withdraw. This timely appeal followed.

Appellant presents three questions for our consideration:
A. The PCRA court erred as a matter of law in denying Appellant's PCRA petition filed August 20, 2012.
B. PCRA counsel filed deficient Turner?Finley [sic] letter and denied Appellant meaningful participation in the PCRA process by failing to file an amended PCRA petition and his performance was deficient.
C. Appellant's guilty plea was unlawfully induced as a matter of law and trial counsel was ineffective for inducing the plea by the lack of trial preparation and misrepresenting Appellant's potential sentence.

Appellant's Brief at 2 (full capitalization omitted).

This Court analyzes PCRA appeals "in the light most favorable to the prevailing party at the PCRA level." Commonwealth v. Rykard, 55 A.3d 1177, 1183 (Pa. Super. 2012), appeal denied, 64 A.3d 631 (Pa. 2013). Our standard of review of an order denying PCRA relief is whether the record supports the PCRA court's determination and whether the PCRA court's determination is free of legal error. Commonwealth v. Phillips, 31 A.3d 317, 319 (Pa. Super. 2011) (citing Commonwealth v. Berry, 877 A.2d 479, 482 (Pa. Super. 2005)). The PCRA court's findings will not be disturbed unless there is no support for the findings in the certified record. Id. (citing Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super. 2001)).

Appellant first complains that the PCRA court erred in denying his petition. Appellant's Brief at 6. We discern two arguments embedded in this issue. First, Appellant argues the PCRA court denied him due process because it permitted counsel to withdraw. Id. Second, Appellant argues that the PCRA court and PCRA counsel erred in determining that his issues were waived. Id. at 7. Neither argument entitles Appellant to relief.

"[W]hile not capable of an exact definition, basic elements of procedural due process are adequate notice, the opportunity to be heard, and the chance to defend oneself before a fair and impartial tribunal having jurisdiction over the case." Commonwealth v. Wright, 961 A.2d 119, 132 (Pa. 2008). Here, the record indicates that Appellant received due process through the filing of his PCRA petition, the appointment of counsel who reviewed the petition but found no meritorious claims, the PCRA court's review of Appellant's petition and counsel's assessment, the PCRA court's notice of intent to dismiss, and Appellant's response to the PCRA court's notice. In light of these filings, Appellant's due process argument lacks merit.

Appellant also maintains that his issues were "not waived[;] they were raised under trial counsel's ineffectiveness and trial counsel's ineffectiveness can only be raised during post-conviction proceedings." Appellant's Brief at 7 (citation omitted). Upon review, we conclude that Appellant's argument stems from a misunderstanding of the law.

"[W]hen a defendant enters a guilty plea, he or she waives all defects and defenses except those concerning the validity of the plea, the jurisdiction of the trial court, and the legality of the sentence imposed." Commonwealth v. Stradley, 50 A.3d 769, 771 (Pa. Super. 2012) (citation omitted). Moreover, "allegations of ineffective assistance of counsel in connection with entry of the guilty plea will serve as a basis for relief only if the ineffectiveness caused appellant to enter an involuntary or unknowing plea." Commonwealth v. Williams, 437 A.2d 1144, 1146 (Pa. 1981).

In his PCRA petition, Appellant claimed ineffective assistance of trial counsel in preparing for trial, investigating the underlying facts of the case, filing a suppression motion, and insisting that Appellant cooperate with the Commonwealth as a confidential informant. Appellant's Brief at 9.[1]Appellant relinquished his ability to raise such defects and defenses when he entered the negotiated plea agreement, executed the written plea colloquy, and affirmed the knowing, intelligent, and voluntary nature of his plea during the trial court's oral plea colloquy. N.T., 5/4/12, at 4–10; Stradley, 50 A.3d at 771. Moreover, as the Commonwealth points out, Appellant does not discuss the merits of his claims or how trial counsel's alleged deficiencies would have changed the outcome of his case. Commonwealth Brief at 24. In sum, Appellant's first issue lacks merit.

Appellant's second and third issues challenge the effectiveness of his PCRA counsel and his plea counsel. We reiterate that counsel's representation is presumed to have been effective, unless the petitioner proves otherwise. Commonwealth v. Williams, 732 A.2d 1167, 1177 (Pa. 1999). In order to succeed on an ineffective assistance of counsel ("IAC") claim, an appellant must demonstrate (1) that the underlying claim is of arguable merit; (2) that counsel's performance lacked a reasonable basis; and (3) that the ineffectiveness of counsel caused the appellant prejudice. Commonwealth v. Pierce, 786 A.2d 203, 213 (Pa. 2001). We have explained that trial 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).

With regard to the second IAC prong, we have reiterated that trial counsel's approach must be "so unreasonable that no competent lawyer would have chosen it." Commonwealth v. Ervin, 766 A.2d 859, 862–863 (Pa. Super. 2000) (quoting Commonwealth v. Miller, 431 A.2d 233 (Pa. 1981)). Our Supreme Court has long defined "reasonableness" as follows:

Our inquiry ceases and counsel's assistance is deemed constitutionally effective once we are able to conclude that the particular course chosen by counsel had some reasonable basis designed to effectuate his client's interests. The test is not whether other alternatives were more reasonable, employing a hindsight evaluation of the record. Although weigh the alternatives we must, the balance tips in favor of a finding of effective assistance as soon as it is determined that trial counsel's decision had any reasonable basis.

Commonwealth v. Pierce, 527 A.2d 973, 975 (Pa. 1987) (quoting Washington v. Maroney, 235 A.2d 349 (Pa. 1967)) (emphasis in original).

In addition, we are mindful that prejudice requires proof that there is a reasonable probability that, but for counsel's error, the outcome of the proceeding would have been different. Pierce, 786 A.2d at 213. "A failure to satisfy any prong of the ineffectiveness test requires rejection of the claim of ineffectiveness." Commonwealth v. Daniels, 963 A.2d 409, 419 (Pa. 2009) (citing Commonwealth v. Sneed, 899 A.2d 1067 (Pa. 2006)). Thus, when it is clear that an appellant has failed to meet the prejudice prong of an ineffective assistance of counsel claim, the claim may be disposed of on that basis alone, without a determination of whether the first two prongs have been met. Commonwealth v. Baker, 880 A.2d 654, 656 (Pa. Super. 2005).

Furthermore, claims of ineffective assistance of counsel are not self-proving. Commonwealth v. Wharton, 811 A.2d 978, 986 (Pa. 2002). Therefore, "a post-conviction petitioner must, at a minimum, present argumentation relative to each layer of ineffective assistance, on all three prongs of the ineffectiveness standard." Commonwealth v. D'Amato, 856 A.2d 806, 812 (Pa. 2004).

In his second issue, Appellant complains that he did not receive his rule-based right to effective PCRA counsel because appointed counsel failed to file an amended petition and his performance was deficient. Appellant's Brief at 8 (citing Pa.R.Crim.P. 904). Notwithstanding Appellant's fervent argument, the record indicates that Appellant did receive effective PCRA counsel. Following the filing of Appellant's pro se petition, the PCRA court appointed Robert Brendza, Esq. as PCRA counsel. Attorney Brendza reviewed Appellant's petition and the record. He determined that the petition contained no meritorious claims and properly requested leave to withdraw pursuant to Turner and Finley. The PCRA court agreed and granted him leave. Thus, the record belies Appellant's complaint.

Appellant's third issue challenges plea counsel's representation. Specifically, Appellant complains that plea counsel "guaranteed [Appellant] and his family that his sentence would be no greater than 3 years" then "initiated the upward sentence rather [than] protect his client." Appellant's Brief at 11. According to Appellant, "the record below indicates a negotiated plea for a three year sentence as the defendant read and initial[ed]." Id. at 13. Appellant argues that plea counsel had no reasonable basis to misinform Appellant about his sentence and use a "bait switch technique" to increase the sentence. Id. at 14. Additionally, Appellant contends he "suffered prejudice as a result of his [plea] counsel's . . . erroneous advice on a potential sentence, " which unlawfully induced him to plead guilty. Id.

In the context at hand, to be eligible for collateral relief, the petitioner must plead and prove by a preponderance of the evidence that his conviction or sentence resulted from "[a] plea of guilty unlawfully induced where the circumstances make it likely that the inducement caused the petitioner to plead guilty and the petitioner is innocent." 42 Pa.C.S.A. § 9543(a)(2)(iii). Upon review of Appellant's assertions, we conclude that he is not entitled to relief on this issue for several reasons. First, nowhere does Appellant support his claim of an unlawfully induced plea with a profession of his innocence. 42 Pa.C.S.A. § 9543(a)(2)(iii).

Second, our reading of the plea transcript reveals that Appellant has mischaracterized the negotiated sentence. At the plea hearing, the trial court specifically asked counsel to explain paragraph thirty-two of the written colloquy form, which indicated a minimum sentence of three years for Count 2. Plea counsel explained as follows:

Yes, Your Honor. I believe that IS the mandatory minimum of three years. However, if there has been a prior possession with intent to distribute charge that the client is pleading to which is the same charge which is included in this, the mandatory minimum jumps to five years pursuant to the count. We can certainly amend it to read five years.

N.T., 5/4/12, at 3–4. Given Appellant's prior possession - charged at Count 1 - the mandatory minimum on Count 2 increased to five years.

Following a discussion off the record, plea counsel "made the change to five years and . . . had [Appellant] initial the change." Id. at 4. Consequently, the written plea colloquy reveals a negotiated plea for a five-year minimum sentence on Count 2, which term Appellant read and initialed. Certified Record No. 9 at 1, 3, 4, and 8.

Third, Appellant acknowledges that "the [trial c]ourt went into details at both the guilty plea and sentencing regarding the crimes charged, his rights and possible sentences." Response to Notice of Intent to Dismiss, 3/15/13, at ¶ 20. Thus, we conclude Appellant's assertions that counsel guaranteed a three-year sentence, failed to protect his client, and caused him to enter an involuntary plea are meritless.

Lastly, Appellant "posits that his PCRA attorney . . . was ineffective for failing to raise the ineffectiveness of [plea] counsel." Appellant's Brief at 14. We have opined that Appellant is not entitled to relief on his claim of plea counsel's ineffectiveness. Thus, Appellant is not entitled to relief with regard to his claim that PCRA counsel was ineffective. Accord Commonwealth v. Busanet, 54 A.3d 35, 46 (Pa. 2012), cert. denied, 134 S.Ct. 178 (2013) ("If the petitioner cannot prove the underlying claim of trial counsel ineffectiveness, petitioner's derivative claim of appellate counsel ineffectiveness fails.") (citation omitted)).

Order affirmed.

Judgment Entered.


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