Com. v. Newton, T. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TERRY LEE NEWTON, JR. :
:
Appellant : No. 721 WDA 2020
Appeal from the PCRA Order Entered June 22, 2020
In the Court of Common Pleas of Washington County Criminal Division at
No(s): CP-63-CR-0002405-2016
BEFORE: BENDER, P.J.E., LAZARUS, J., and McCAFFERY, J.
MEMORANDUM BY McCAFFERY, J.: FILED: APRIL 30, 2021
Terry Lee Newton, Jr. (Appellant) appeals from the order entered in the
Washington County Court of Common Pleas, denying his first petition filed
pursuant to the Post Conviction Relief Act (PCRA),1 seeking relief from his
guilty plea to the charges of aggravated assault and flight to avoid
apprehension.2 On appeal, Appellant contends the PCRA court erred when it
rejected his claim that plea counsel’s ineffectiveness caused him to enter an
involuntary guilty plea. We affirm.
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1 42 Pa.C.S. §§ 9541-9546.
2 18 Pa.C.S. §§ 2702(a)(1), 5126(a).
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We glean the facts of the underlying case from the affidavit of probable
cause (APC).3 On August 17, 2016, at approximately 2:53 a.m., Charleroi
Regional Police officers responded to a domestic disturbance at 1022
Fallowfield Avenue, Charleroi Borough. Police Criminal Complaint, APC,
8/17/16, at 1. Upon their arrival, police saw Krystal Randall (Eyewitness)
running from the above address, yelling, “[H]e is inside and he is killing her!”
Id. Officer Michael Leasure observed Appellant “running from the back door
of 1022 Fallowfield Avenue.” Id. Officer Leasure chased Appellant yelling,
“Police[,] stop.” Id. Appellant continued to run until Officer Leasure and
Officer McKean4 apprehended him on the 1000 block of Railroad Way. Id.
Officer Leasure then entered 1022 Fallowfield Avenue, where he observed
blood on the floor. The victim was found “lying on the floor unresponsive[ ]”
with blood covering her face and shirt, as well as a “puddle of blood [under
her] head and chest.” Id. The victim “had a faint pulse[,] shallow breathing[,]
had lost a lot of blood[,]” had a “large laceration [on her] head,” and the right
side of her face was “swollen.” Id. Officer Leasure followed a “blood trail”
into another room where he observed a “puddle of blood in the middle of the
room along with a white chest freezer and a dehumidifier” with blood on them.
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3 The trial court noted at the plea hearing it was relying upon the APC for the
factual predicate of this case. N.T. Plea H’rg, at 6. Neither the PCRA court
nor the trial court included a recitation of the facts in their opinions.
4 The record does not indicate Officer McKean’s first name.
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Id. Officer Leasure asked Eyewitness what happened, to which she
responded:
[Appellant] came over and . . .asked [the victim] for a cigarette
and [the victim] said no. [Appellant then] picked up the chest
freezer and struck [the victim] in the head with it. [Eyewintess]
tried to stop [Appellant], but he began to try to hurt [Eyewitness.
Eyewitness] ran out of the house and called 911.
Id. at 1-2.
Appellant was subsequently charged with attempted criminal homicide,
aggravated assault, simple assault, reckless endangerment of another person,
and flight to avoid apprehension.5 On September 11, 2017, Appellant entered
a negotiated guilty plea to aggravated assault and flight to avoid
apprehension. The same day, Appellant completed a written guilty plea
colloquy where he indicated he was not “satisfied with the legal advice and [
] representation of” plea counsel Gary Graminski, Esquire, did not have
“ample opportunity to consult with [Attorney Graminski] before entering [his]
plea,” and Attorney Graminski did not “go[ ] over the meaning of the terms
of this document[ ]” with him. Guilty Plea Colloquy, 9/11/17, at 7. Appellant
indicated in his written colloquy that no one forced him to accept a guilty plea,
he was entering the plea of his own free will, and no threats were made to
force him to plead guilty. Id.
The trial court then conducted an oral colloquy with Appellant, where he
indicated he “had enough time to talk about [his] case with [Attorney]
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5 18 Pa.C.S. §§ 901(a), 2701(a)(1), 2705.
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Graminski[,]” was “satisfied with [Attorney Graminski’s] representation[,]”
and his answers were “truthful and honest[.]” N.T. Plea H’rg, 9/11/17, at 9-
10. During the proceedings, Appellant stated he did not understand the term
“stipulating.” Id. at 6. After Attorney Graminski explained “stipulation” to
Appellant, he stipulated to the “facts set forth in the affidavit of probable
cause[.]” Id. As a result of the negotiated plea, the remaining charges were
nolle prossed. Appellant was sentenced on the same day to the agreed-upon
term of six to twelve years’ incarceration for aggravated assault and a
concurrent term of one to two years for flight to avoid apprehension.
On September 20, 2017, Appellant filed a pro se petition to withdraw
his guilty plea, alleging ineffective assistance of counsel. On November 2,
2017, the trial court allowed Attorney Graminski to withdraw from
representation and appointed new counsel. On December 18, 2017, the trial
court conducted a hearing on Appellant’s petition to withdraw his guilty plea
and denied it.
On January 23, 2018, Appellant filed a notice of appeal. The
Commonwealth filed a motion to quash the appeal for untimeliness, which this
Court granted on May 20, 2019. Commonwealth v. Newton, 136 WDA
2018 (order) (Pa. Super. May 20, 2019). Appellant did not seek allocator with
our Supreme Court.
Appellant filed pro se PCRA petitions on July 10, 2019, and July 24,
2019. The PCRA court ultimately appointed present counsel, Joseph Zupancic,
Esquire, who filed an amended PCRA petition, claiming Attorney Graminski
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provided ineffective assistance when he failed to “ensure an intelligent,
knowing, and voluntary plea” and abandoned Appellant. Amended Petition for
Post Conviction Relief, 10/6/19, at 7, 13. The PCRA court conducted an
evidentiary hearing on May 22, 2020. Attorney Graminski testified extensively
that he spoke with Appellant concerning: the scope of his representation, cost
of representation, case strategies and theories, Appellant’s charges, the facts
of the case and how the Commonwealth could prove the charges, Appellant’s
plea colloquy, and the details of the Commonwealth’s plea offers. N.T., PCRA
H’rg, 5/22/20, at 9-11, 13, 15, 20, 28. Appellant also testified, contradicting
Attorney Graminski’s testimony concerning what he did as counsel, discussed
infra. See id. at 38-41, 43, 46-47, 50.
Appellant filed a notice of appeal on July 16, 2020. He also timely
complied with the PCRA court’s order to file a concise statement of matters
complained of on appeal pursuant to Pa.R.A.P. 1925(b), which raised, inter
alia, the following claims:6
7. Arguing lack of validity, Appellant asserts the plea was not
knowing because [Attorney Graminski] did not inform him of the
offenses to which he was pleading.
8. Arguing the plea was not knowing, intelligent, and voluntary,
Appellant asserts [Attorney Graminski] was ineffective in his legal
assistance such that Appellant did not exercise free will, did not
have ample opportunity to consult with [Attorney Graminski], and
did not understand the impact of the plea including the sentence
imposed.
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6The Rule 1925(b) statement raised additional issues that Appellant has now
abandoned on appeal.
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Appellant’s Statement on Appeal, 3/2/18, at 2 (unpaginated).
Appellant raises the following issues on appeal:
1. Whether the trial court erred in finding that [Appellant’s] trial
counsel had not rendered ineffective assistance of counsel
which failed to ensure that [Appellant’s] guilty plea was
voluntarily, knowingly and intelligently entered.
2. Whether the trial court erred in finding that [Appellant’s] trial
counsel had not abandoned him at the time of trial and thus
caused [Appellant] to enter into a plea that was not voluntarily,
knowingly and intelligently entered.
Appellant’s Brief at 7.
Our review of an order denying a PCRA petition is well-settled: “[W]e
must determine whether the PCRA court’s order ‘is supported by the record
and free of legal error.’” Commonwealth v. Johnson, 139 A.3d 1257, 1272
(Pa. 2016) (citation omitted). Furthermore, “[t]he PCRA court’s factual
findings and credibility determinations, when supported by the record, are
binding upon this Court.” Commonwealth v. Small, 238 A.3d 1267, 1280
(Pa. 2020).
Where a petitioner’s claims raise allegations of prior counsel’s
ineffectiveness,
the petitioner must demonstrate: (1) that the underlying claim
has arguable merit; (2) that no reasonable basis existed for
counsel’s actions or failure to act; and (3) that the petitioner
suffered prejudice as a result of counsel’s error. . . . Counsel is
presumed to be effective; accordingly, to succeed on a claim of
ineffectiveness the petitioner must advance sufficient evidence to
overcome this presumption.
See Johnson, 139 A.3d at 1272 (citations omitted).
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Allegations of ineffectiveness in connection with the entry of a
guilty plea will serve as a basis for relief only if the ineffectiveness
caused [the] appellant to enter an involuntary or unknowing plea.
In determining whether a guilty plea was entered knowingly and
intelligently, a reviewing court must review all of the
circumstances surrounding the entry of that plea.
Commonwealth v. Fears, 86 A.3d 795, 806–07 (Pa. 2014) (citation
omitted).
In his first claim, Appellant argues Attorney Graminski provided
ineffective assistance, rendering his guilty plea not voluntary, knowing, or
intelligent. Appellant’s Brief at 11. Appellant maintains the PCRA court’s
findings, that he did not meet the three elements of the ineffectiveness test,
were “not supported by the record [or] f[r]ee from legal error. Id. at 12.
Appellant contends he has “at least” three different grounds with arguable
merit supported by the record, satisfying the first prong of the ineffectiveness
test. Id. First, Appellant argues “he did not have a sufficient understanding
of the factual predicate to the two [ ] counts to which he was pleading guilty[
]” because he “did not understand the nature of the specific charge to which
he was pleading guilty, [ ] it is unclear [ ] that he understood that he was
stipulating to the facts that formed the predicate for each charge[,]” and “he
never had a discussion with [Attorney] Graminski about how the facts could
be used to establish the charges against him.” Id. at 12, 14-15. Appellant
cites his plea hearing statement, where he asked Attorney Graminski what
“stipulating” means, and his PCRA hearing testimony that he “never had a
conversation about” how the facts of the case could prove the charges against
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him and that he “didn’t know [he] was pleading to [s]erious [b]odily [i]njury.”
Id. at 13-15.
Second, Appellant argues he “expressed in his written colloquy that he
was not satisfied [with Attorney] Graminski’s representation [and] did not
have sufficient time to prepare [for] trial.” Appellant’s Brief at 15. When
asked, at the PCRA hearing, why he stated in the oral colloquy that he was
satisfied with Attorney Graminski’s representation, Appellant testified:
“Because [Attorney] Graminski told me that I had to agree with what the
Judge was asking me or my plea wasn’t going to get accepted, and, to me,
six years is better than 30.” Id. at 17. Appellant contends that due to his
conflicting answers in the written and oral colloquies, “the [trial] court should
have inquired further into whether his oral answers accurately reflected his
appraisal of [Attorney] Graminski’s performance in order to establish
[Appellant’s] true intent on the record.” Id. Appellant maintains it was also
Attorney Graminski’s duty to “clear this matter up on the record [ ] especially
since [Attorney Graminski] was aware of the contradictory answers.” Id.
Third, Appellant argues Attorney Graminski “did not explain to him that
he would be receiving a state sentence for the crimes to which he was pleading
guilty[ ]” and Appellant only learned of this fact when “he heard it from the
[Commonwealth] at the time of the plea and sentencing proceeding.”
Appellant’s Brief at 18. Appellant acknowledges Attorney Graminski’s
testimony at the PCRA hearing that he did inform Appellant of the state prison
sentence, but nevertheless argues “if [ ] his counsel never advised him [that
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the] plea offer was for a state prison sentence, that would be an issue that
has arguable merit.” Id.
Appellant also maintains, regarding the second element of the
ineffectiveness test, Attorney Graminski “did not have a reasonable basis
designed to effectuate [Appellant’s] interests.” Appellant’s Brief at 18.
Appellant contends Attorney Graminski “should have requested and required
the Commonwealth to specifically state the factual basis for” Appellant’s
crimes on the record, instead of accepting a stipulation to the APC, in light of
Appellant’s “obvious confusion[.]” Id. at 19. Appellant maintains Attorney
Graminski should have inquired further into whether Appellant was satisfied
with his representation and explained Appellant would be receiving “state
time” in exchange for his plea. Id.
Regarding the third prong of the ineffectiveness test, Appellant contends
that “but for these factors and the ineffective assistance [of Attorney
Graminski, Appellant] would not have accepted the plea offer and would have
proceeded to trial.” Appellant’s Brief at 19. After careful review, we conclude
no relief is due.
We first consider Appellant’s first ground — that he did not understand
what he was pleading guilty to and did not discuss the facts of his case with
Attorney Graminski. Appellant ignores the PCRA court’s finding that Appellant
was not credible in this regard, and instead that Attorney Graminski was
credible. See PCRA Ct. Op., 6/22/20, at 8. At the PCRA hearing, Attorney
Graminski and Appellant presented conflicting accounts of their pre-plea
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discussions. Appellant stated he did not understand that he was pleading
guilty to “serious bodily injury” at the time of the plea hearing, but admitted
it was on the first page of the information he reviewed as part of his discovery.
N.T., PCRA H’rg, at 45, 51-52. Appellant also stated he did not understand
he was admitting to the facts through his stipulation. Id. at 46-47. At this
juncture, we note Attorney Graminski explained to Appellant on the record at
the plea hearing that stipulating to the facts meant he would be “[a]greeing
to them. Not arguing about them[,]” and Appellant then agreed to the
stipulation. N.T., Plea H’rg, at 6. Meanwhile, Attorney Graminski testified at
the PCRA hearing that he discussed with Appellant the facts of his case and
how they could prove the elements of each charge. N.T., PCRA H’rg, at 20.
Again, the PCRA court found Attorney Graminksi’s testimony credible. PCRA
Ct. Op. at 8. We conclude the court’s finding is supported by the record, and
thus, we are bound by this credibility determination. See Small, 238 A.3d at
1280. Accordingly, Appellant has failed to establish his underlying claim has
arguable merit. See Johnson, 139 A.3d at 1279.
Furthermore, with respect to Appellant’s second ground, that Attorney
Graminski had a duty to “clear up” the discrepancies between his written and
oral colloquies, we note that after the written colloquy, the trial court
conducted an oral colloquy to address Appellant’s satisfaction with Attorney
Graminski’s representation. Appellant responded he did have enough time to
speak with Attorney Graminski, and the trial court found his plea was knowing,
intelligent, and voluntary. N.T., Plea H’rg, at 9, 11. We cannot allow Appellant
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to withdraw his plea based on his contradictory written responses and oral
statements when the trial court clarified these discrepancies on the record.
See id; Commonwealth v. Pier, 182 A.3d 476, 480 (Pa. Super. 2018) (“[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.”) (citation omitted);
Commonwealth v. Pollard, 832 A.2d 517, 523 (Pa. Super. 2013) (“Our law
presumes that a defendant who enters a guilty plea was aware of what he was
doing. . . . A person who elects to plead guilty is bound by the statements he
makes in open court while under oath and he may not later assert grounds for
withdrawing the plea which contradict the statements he made at his plea
colloquy.”) (citations omitted). Additionally, the PCRA court’s finding that
Appellant entered a knowing, voluntary, and intelligent plea is supported by
the record and thus, is binding upon this Court. See Small, 238 A.3d 1267,
1280. Accordingly, Appellant’s claim, that Attorney Graminski had no
reasonable basis for his alleged failure to “clear up” Appellant’s inconsistent
responses at the plea hearing, is meritless. See Johnson, 139 A.3d at 1279.
We also reject Appellant’s third contention, that Attorney Graminski did
not explain that he would be receiving a state sentence in exchange for his
plea. At the PCRA hearing, Attorney Graminski testified that at the September
8, 2017, pre-trial conference, the trial court informed Appellant of each charge
and the maximum sentence. N.T., PCRA H’rg, at 13, 25-26. Attorney
Graminski also testified that before pleading guilty, he discussed with
Appellant on “numerous occasions” that the Commonwealth’s offer included a
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“state prison sentence.” Id. at 28. Appellant’s guilty plea colloquy confirms
that he “discussed with Attorney Graminski the permissible range of sentences
[and] the grading and maximum sentences for both charges.” See PCRA Ct.
Op. at 7; Guilty Plea Colloquy, at 8. The PCRA court made a factual finding
that the record reflects Appellant was aware the Commonwealth’s offer
included a state sentence; thus, Appellant’s claim is meritless. See PCRA Ct.
Op. at 7; Small, 238 A.3d at 1280; Johnson, 139 A.3d at 1279. For the
foregoing reasons, we agree with the PCRA court that Appellant failed to
establish any of the ineffectiveness prongs. Accordingly, no relief is due.
In his second claim on appeal, Appellant argues the PCRA court erred
when it found Attorney Graminski did not abandon Appellant and thus did not
cause him to enter an involuntary, unknowing, and unintelligent plea.
Appellant’s Brief at 21. Appellant cites his PCRA testimony that although his
family members paid Attorney Graminski attorneys’ fees, Attorney Graminski
informed Appellant he would not proceed to trial because Appellant had not
paid him for that. Id. at 22-23. Id. at 22. Appellant stated Attorney
Graminski did not tell him he had any other option than to plead guilty. Id.
at 23. Appellant claims this had an “obvious coercive effect upon [him],”
making him believe his only options were to take the plea “or proceed to jury
trial with an attorney that would not represent him at all, or who would not
zealously advocate for his interests because he had not been paid[.]” Id. at
24. Appellant argues he “had no choice but to accept a guilty plea offer so as
to avoid the risks of going to trial.” Id. Appellant contends the trial court
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relied only upon his testimony at his plea hearing and not the testimony at his
PCRA hearing when finding Attorney Graminski had not abandoned him. Id.
at 25.
We reiterate the PCRA court credited Attorney Graminski’s testimony
that he met with Appellant multiple times and discussed the scope of his
representation and that additional funds would be needed for trial. See PCRA
Ct. Op. at 8; N.T., PCRA H’rg, at 9. Attorney Graminski testified he completed
an “appropriate amount of preparation” and had “extensive conversations”
with both Appellant and the Commonwealth regarding the non-jury trial
scheduled for August 28, 2017. Id. at 14. Attorney Graminski also testified
at the hearing that on September 11, 2017, he was “ready, willing, and able
to zealously represent [Appellant] at trial[ ]” even if Appellant’s family had not
paid additional funds and “nothing was preventing [Appellant] from saying ‘I
don’t want to [plead guilty].’” Id. at 24. We cannot disturb the PCRA court’s
credibility determinations. Instead, we defer to its findings. See Small, 238
A.3d 1267, 1280.
Because Appellant has not raised any meritorious grounds for an
ineffective assistance claim, no relief is due. Appellant is essentially asking
this Court to supplant the PCRA court’s credibility determinations with our
own, which we decline to do. See Small, 238 A.3d at 1280. Given the PCRA
court’s credibility determination and factual findings, our review of the record
supports the PCRA court’s conclusion that relief is not warranted.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 04/30/2021
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