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[U] Commonwealth v. Bivens

Superior Court of Pennsylvania

March 6, 2014

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
BRAHEEM KAMEIL BIVENS, Appellant

NON-PRECEDENTIAL DECISION

Appeal from the PCRA Order July 29, 2013 in the Court of Common Pleas of Delaware County Criminal Division at No. CP-23-CR-0006525-2011

BEFORE: GANTMAN, J., OLSON, J., and PLATT, J. [*]

MEMORANDUM

PLATT, J.

Appellant, Braheem Kameil Bivens, appeals from the denial of his first petition filed pursuant to the Post-Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546, without a hearing. We affirm.

The PCRA court aptly set forth the background of this case in its September 18, 2013 opinion:

Appellant was arrested on March 28, 2011, and charged with two counts of possession with intent to deliver, possession of a controlled substance, possession of drug paraphernalia, [1] and two traffic offenses.
On or about December 11, 2011, [plea counsel] entered his appearance on behalf of Appellant. On January 5, 2012, Appellant filed a motion to suppress, challenging the admissibility of evidence due to an unlawful stop and search. [The court] held a suppression hearing on January 31, 2012, and on February 27, 2012, granted the motion in reference to the contraband found on Appellant's person and denied the motion in reference to the contraband discovered within Appellant's vehicle. Pursuant to [the court's] granting of suppression, the Commonwealth filed a timely motion for reconsideration. After hearing argument from both parties on March 5, 2012, [the court] reversed itself and ruled that the contraband found on Appellant's person was admissible pursuant to the applicability of the inevitable discovery doctrine.
On March 6, 2012, Appellant entered into a [negotiated] guilty plea to one count of possession with intent to deliver, an ungraded felony. . . . Appellant was sentenced to seven to fourteen years of incarceration. Appellant did not file a direct appeal.
On February 28, 2013, Appellant, through his new [PCRA counsel] filed a [PCRA petition]. . . . Appellant's [c]ounsel filed an [a]mended [PCRA petition] on May 22, 2013. . . .
On June 26, 2013, both parties appeared before [the court]. The Commonwealth argued two motions: (1) challenging the procedural defects in Appellant's petition and (2) challenging any testimony for failure to conform with 42 Pa.C.S.A. [§] 9545(d)(1). After hearing argument, [the court] granted both of the Commonwealth's motions and also stated on the record that Appellant's claims were without merit.
On June 27, 2013, [the PCRA court] filed a notice of intent to dismiss without a hearing giving Appellant twenty days to respond.[2] [Appellant failed to respond and the PCRA court] dismissed Appellant's petition on July 29, 2013.
On August 22, 2013, Appellant filed a timely notice of appeal to the Superior Court. Pursuant to that notice, [the PCRA court] issued a [Rule] 1925(b) [o]rder.[3]

(PCRA Court Opinion, 9/18/13, at 1-3 (footnotes omitted)).

Appellant raises one issue for our review:

I. [Did the PCRA court err in denying his PCRA petition where he] is . . . entitled to withdraw his guilty plea when he was not made aware by his trial counsel, that by pleading guilty, he is giving up his rights to later appeal the denial of his meritorious motion to suppress?

(Appellant's Brief, at 3).[4]

Our standard of review for an order denying PCRA relief is well-settled:

This Court's standard of review regarding a PCRA court's order is whether the determination of the PCRA court is supported by the evidence of record and is free of legal error. Great deference is granted to the findings of the PCRA court, and these findings will not be disturbed unless they have no support in the certified record. Moreover, a PCRA court may decline to hold a hearing on the petition if the PCRA court determines that a petitioner's claim is patently frivolous and is without a trace of support in either the record or from other evidence.

Commonwealth v. Carter, 21 A.3d 680, 682 (Pa.Super. 2011) (citations and quotation marks omitted).

To obtain relief on a claim for ineffective assistance of counsel, Appellant must establish: "(1) that the [underlying] claim is of arguable merit; (2) that counsel had no reasonable strategic basis for his or her action or inaction; and, (3) that, but for the errors and omissions of counsel, there is a reasonable probability that the outcome of the proceedings would have been different." Commonwealth v. Kimball, 724 A.2d 326, 333 (Pa. 1999) (citing Commonwealth v. Pierce, 527 A.2d 973, 975-76 (Pa. 1987)). Failure to prove any of the three prongs prevents an appellant from succeeding on the claim. Commonwealth v. Robinson, 877 A.2d 433, 439 (Pa. 2005) (citation omitted).

Here, although Appellant's issue is, in effect, premised on allegations of counsel's ineffectiveness, he has failed to provide meaningful discussion regarding any of the three required factors. (See Appellant's Brief, at 10-13). Although the brief lists the criteria that must be established, (see id. at 10-11), it abandons any express argument about them and their applicability to this case. (See id. at 14-18). Accordingly, Appellant's issue is waived. See Commonwealth v. Rolan, 964 A.2d 398, 406 (Pa.Super. 2008) (finding ineffective assistance of counsel claim waived where appellant failed to discuss the three factors of the test); see also Robinson, supra at 439. Moreover, it would not merit relief.

Appellant argues that he would not have pleaded guilty if counsel had "fully informed [him] about the loss of his right to challenge the evidence that was obtained during the traffic stop." (Appellant's Brief, at 12).

A guilty plea must be entered into knowingly, voluntarily and intelligently. Our courts have stated that:

"[a] plea of guilty is unlawfully induced where the circumstances make it likely that the inducement caused the petitioner to plead guilty and the petitioner is innocent." Commonwealth v. Rachak, 62 A.3d 389, 394 (Pa.Super. 2012), appeal denied, 67 A.3d 796 (Pa. 2013) (citing 42 Pa.C.S.A. § 9543(a)(iii)). Further,
[i]n order for a guilty plea to be constitutionally valid, the guilty plea colloquy must affirmatively show that the defendant understood what the plea connoted and its consequences. This determination is to be made by examining the totality of the circumstances surrounding the entry of the plea. [A] plea of guilty will not be deemed invalid if the circumstances surrounding the entry of the plea disclose that the defendant had a full understanding of the nature and consequences of his plea and that he knowingly and voluntarily decided to enter the plea.
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. [Commonwealth v.] Pollard, 832 A.2d [517, ] 523 [(Pa.Super. 2003)] (citations omitted). "[W]here the record clearly demonstrates that a guilty plea colloquy was conducted, during which it became evident that the defendant understood the nature of the charges against him, the voluntariness of the plea is established." Commonwealth v. McCauley, 797 A.2d 920, 922 (Pa.Super. 2001) [(citation omitted)].

Commonwealth v. Rush, 909 A.2d 805, 808 (Pa.Super. 2006). Therefore, "[a] defendant is bound by the statements he makes during his plea colloquy, and may not assert grounds for withdrawing the plea that contradict statements made when he pled." McCauley, supra at 922 (citation omitted).

In this case, during the guilty plea and sentencing hearing, Appellant testified that he was not suffering from the effects of anything that would render him unable to understand the proceedings. (See N.T. Guilty Plea and Sentencing Hearing, 3/06/12, at 7). He testified that he and his attorney reviewed the charges against him, possible defenses, and the motions to suppress that had been filed in the case. (See id.). He admitted that he was guilty of the felony charges to which he was pleading and the factual basis of the guilty plea contained in the affidavit of probable cause. (See id. at 8, 11-12; Affidavit of Probable Cause, 3/29/11, at 1-2 (describing observation of Appellant's suspect behavior and the related seizure of money and narcotics from his person and vehicle)). Appellant testified that he was satisfied with counsel's representation. (See id. at 7-8, 13). He repeatedly stated that he did not have "any questions whatsoever with respect to the plea [he was] entering into . . . and the consequences of that plea" including "limited post-sentence rights." (Id. at 9, 11; see id. at 10, 14). Appellant also completed a written guilty plea statement and statement of post- sentence rights. (See id. at 9-10, 10-11, 13-14, 23). Appellant testified that he answered the questions truthfully; that he reads, writes and understands the English language; and that he went over the written statements with his defense counsel. (See id. at 6, 9, 13).

Importantly, Appellant agreed to the following language in the guilty plea statement:

[i]f the judge granted any motions filed by the Commonwealth or denied any motions filed by me, by pleading guilty . . . I give up or lose my rights to appeal the judge's decision to a higher court and I can never again raise any of the issues stated in these motions before any court.

(Guilty Plea Statement, 3/26/12, at 3 ¶ 18).

Therefore, based on the record, Appellant's argument that he did not understand he was giving up his appellate rights by pleading guilty because of his counsel's ineffective representation is belied by his statements during the guilty plea hearing and in the written guilty plea statement. See Rush, supra at 808; McCauley, supra at 922. Additionally, there is no evidence that an "inducement caused the petitioner to plead guilty and the petitioner is innocent." Rachak, supra at 394. Accordingly, the PCRA court's findings were supported by the record and it did not err in concluding that "there is no legal or factual basis for Appellant to be allowed to withdraw his guilty plea[.]" (PCRA Ct. Op., at 8); see also Carter, supra at 682. Hence, even if Appellant's issue were not waived, it does not merit relief.

Order affirmed.

Judgment Entered.


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