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[U] Commonwealth v. Kindrew

Superior Court of Pennsylvania

February 20, 2014



Appeal from the PCRA Order on April 10, 2013 In the Court of Common Pleas of Northampton County Criminal Division at No.: CP-48-CR-0002217-2011




Kenneth Kindrew ("Kindrew") appeals from the April 10, 2013 order denying his petition for relief pursuant to the Post-Conviction Relief Act ("PCRA"), 42 Pa.C.S. §§ 9541-46. We affirm.

The PCRA court set forth the procedural history of this case as follows:

On October 24, 2011, [Kindrew] entered a no-contest plea to aggravated indecent assault and corruption of minors.[1] On February 3, 2012, [Kindrew] waived his hearing and agreed to accept his designation as a sexually violent predator. On February 8, 2012, the [trial court] sentenced [Kindrew] to a period of [five to ten] years in a state correctional institution on the charge of aggravated indecent assault, with a fine of $1, 500.00. [Kindrew] was also sentenced to a consecutive [sentence of two and one-half to five years['] imprisonment] on the charge of corruption of minors, with a fine of $750.00.
[Kindrew] also received a consecutive [five-year sentence] of state probation. . . .
On September 18, 2012, [Kindrew] filed a motion for reconsideration of sentence nunc pro tunc, asserting that he had inadequate counsel and misunderstood the plea. This court treated [Kindrew's] motion as a [petition under the] PCRA and appointed Brian Monahan, Esquire, to represent him.
A PCRA hearing was held . . . on January 30, 2013, during which [Kindrew] asserted that [plea counsel] was ineffective and that [Kindrew's] plea was not knowingly, voluntarily and intelligently entered. [Kindrew] also asserted that his sentence was excessive. On February 14, 2013, PCRA counsel filed a no-merit letter, asserting that there was no factual basis to support the issues raised by [Kindrew.[2]

PCRA Court Opinion ("P.C.O."), 4/10/2013, at 1-2 (some capitalization modified).

On April 10, 2013, the PCRA court issued an opinion and order denying relief. On April 18, 2013, Kindrew filed a notice of appeal. On April 23, 2013, the PCRA court ordered Kindrew to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Kindrew timely complied.

Kindrew raises the following issues for our review:

1. Whether trial counsel was ineffective for failing to [e]nsure that the guilty plea and sentencing proceedings were in accordance with law and in accordance with the plea agreement?
2. Whether [Kindrew's] plea was not entered knowingly, voluntarily, and intelligently?

Brief for Kindrew at 3 (capitalization modified).

Before reviewing the merits of Kindrew's claim, we first must determine whether this appeal is timely. A PCRA petition must be filed within one year of when the judgment of sentence becomes final. See 42 Pa.C.S. § 9545(b)(1). In the case sub judice, the trial court originally sentenced Kindrew on February 8, 2012. Kindrew did not file a direct appeal. Therefore, Kindrew's judgment of sentence became final thirty days after it was entered. See 42 Pa.C.S. § 9545(b)(3). Thus, Kindrew had until March, 9 2013, to file a timely PCRA petition. Kindrew's motion for reconsideration of sentence, which the court treated as a PCRA petition, was filed on September 18, 2012. Accordingly, Kindrew's PCRA petition was timely filed.

"The standard of review for an order denying post-conviction relief is limited to whether the trial court's determination is supported by evidence of record and whether it is free of legal error." Commonwealth v. Allen, 732 A.2d 582, 586 (Pa. 1999). "The PCRA court's findings will not be disturbed unless there is no support for the findings in the certified record." Commonwealth v. Johnson, 945 A.2d 185, 188 (Pa. Super. 2008).

For ease of disposition, we will consider Kindrew's claims in reverse order. Turning to Kindrew's second issue, we find it to be waived. Under the PCRA, an appellant waives any issue that could have been raised before trial, at trial, during unitary review, on appeal, or in a prior state postconviction proceeding. 42 Pa.C.S. § 9544(b). Our review of the record in this case reveals that Kindrew did not file a post-sentence motion to withdraw his nolo contendere plea. Also, as noted supra, Kindrew did not pursue a direct appeal before this Court. Accordingly, we find this issue to be waived, and we will address the merits of Kindrew's ineffectiveness of counsel claim only.

To be entitled to relief on a claim of ineffective assistance of counsel:
"Appellant must demonstrate (1) that the underlying claim is of arguable merit; (2) that counsel's course of conduct was without a reasonable basis designed to effectuate his client's interest; and (3) that he was prejudiced by counsel's ineffectiveness." Commonwealth v. Wallace, 724 A.2d 916, 921 (Pa. 1999), citing Commonwealth v. Howard, 645 A.2d 1300, 1304 (Pa. 1994) (other citation omitted). In order to meet the prejudice prong of the ineffectiveness standard, a defendant must show that there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Commonwealth v. Kimball, 724 A.2d 326, 331 (Pa. 1999), quoting Strickland v. Washington, 466 U.S. 668, 694 (1984).

Commonwealth v. Jones, 811 A.2d 1057, 1060 (Pa. Super. 2002) (citations modified). The petitioner bears the burden of proving all three of these elements. Commonwealth v. Meadows, 787 A.2d 312, 320 (Pa. 2001).

"The law does not require that appellant be pleased with the outcome of his decision to enter a plea of guilty: All that is required is that appellant's decision to plead guilty be knowingly, voluntarily and intelligently made." Commonwealth v. Yager, 685 A.2d 1000, 1004 (Pa. Super. 1996) (citation omitted). When an appellant enters a plea, it is presumed voluntary and the burden of proof is on the appellant to prove otherwise. Commonwealth v. Stork, 737 A.2d 789, 790 (Pa. Super. 1999). Instantly, Kindrew's claim of ineffective assistance of counsel must fail because he has not demonstrated that the underlying claim has arguable merit. Specifically, Kindrew alleges that his plea counsel was ineffective for failing to ensure that Kindrew's plea properly was entered. Brief for Kindrew at 3. However, Kindrew has failed to establish that his plea was involuntary or unknowing. See Commonwealth v. Chumley, 394 A.2d 497, 504 (Pa. 1978), cert. denied, 440 U.S. 966 (1979) ("[A]llegations 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.")[3]

In determining whether a plea is entered voluntarily, the court must examine the totality of circumstances surrounding the plea. Commonwealth v. Flanagan, 854 A.2d 489 (Pa. 2004). Further, when accepting a defendant's plea, the court is required to conduct an on-the-record inquiry to determine voluntariness. Commonwealth v. Ingold, 823

A.2d 917, 920-21 (Pa. Super. 2003) disapproved of on other grounds, Commonwealth. v. O'Berg, 880 A.2d 597 (Pa. 2005). At minimum, the colloquy must inquire into the following areas:

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 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 range 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?

Pa.R.Crim.P. 590, Cmt.

Kindrew contends that trial counsel failed to provide him with a full explanation of his nolo contendere plea. Brief for Kindrew at 10-11. Kindrew further argues that his confusion, as evidenced by his testimony at the PCRA hearing, warrants a finding that his plea was involuntary. Id. Specifically, Kindrew cites his own testimony, presented at the PCRA hearing, wherein he stated that he "[D]idn't know what the plea meant." Id. at 12.

Our review of the record and the plea proceeding reveals that the trial court properly determined Kindrew's plea was knowing, intelligent, and voluntary. Kindrew's plea colloquy met all of the above-stated Rule 590 requirements. The court informed Kindrew that the Commonwealth had the burden to prove his guilt beyond a reasonable doubt. N.T., 10/24/11, at 9. Kindrew testified that he understood that he was presumed innocent until proven guilty, and that he had the right to trial by a jury. Id. The trial court reviewed the maximum possible sentences for each of Kindrew's charges. Id. at 2. The record also reflects that, during the plea colloquy, the court informed Kindrew that the sentences on each count could be imposed consecutively to each other. Id. at 3. Kindrew testified that he had reviewed the plea statement, which outlined his rights and protections, with his attorney. Id. at 4. The factual basis for the plea was read into the record. Id. at 10-13. Kindrew also testified that he was satisfied with counsel's performance. Id. at 10. Kindrew attested that he entered his plea voluntarily. Id. at 13.

"The desire of an accused to benefit from a plea bargain is a strong indicator of the voluntariness of his plea." Commonwealth v. Pollard, 832 A.2d 517, 524 (Pa. Super. 2003). In exchange for Kindrew's plea, the Commonwealth withdrew three related charges against him, including one count of felony indecent assault upon a person fewer than thirteen years of age.[4] Kindrew testified at the PCRA hearing that he considered this benefit before entering the plea. N.T., 1/30/13, at 12-13. Similarly, Kindrew's trial counsel testified that Kindrew had expressed a desire to circumvent the need the victim in this case to testify at trial. Id. at 16.

Based upon the totality of the circumstances, we find that Kindrew had a full understanding of the nature and consequences of his plea, and that he knowingly and voluntarily entered it. Accordingly, Kindrew has failed to demonstrate that his underlying ineffective assistance of counsel claim is of arguable merit.

Order affirmed.

Judgment Entered.

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