Com. v. Rouse, C. ( 2015 )

J-S35030-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
CALVIN ROUSE
Appellant No. 3069 EDA 2014
Appeal from the PCRA Order September 18, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0010141-2010
BEFORE: MUNDY, OLSON and PLATT,* JJ.
MEMORANDUM BY OLSON, J.: FILED JUNE 16, 2015
Appellant, Calvin Rouse, appeals from the order entered on September
18, 2014, dismissing his petition filed under the Post-Conviction Relief Act
(PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.
The PCRA court has ably summarized the underlying facts and
procedural posture of this case. As the PCRA court explained:
[Appellant] entered an open guilty plea before [the trial
court] on March 31, 2011 to . . . the charge of persons not
to possess firearms. . . .[1] On June 9, 2011, [the trial court
sentenced Appellant to serve a term of] five to ten years [in
prison]. . . . [Appellant] did not file a post-sentence motion
or [a direct appeal from his judgment of sentence].
On January 24, 2012, [Appellant] filed a pro se petition
under the [PCRA]. Gary S. Server, Esq. was appointed to
____________________________________________
1
18 Pa.C.S.A. § 6105.
*Retired Senior Judge assigned to the Superior Court.
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represent [Appellant]. . . . On June 24, 2013, Mr. Server
filed a “no merit” letter and a motion seeking permission to
withdraw as counsel 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
July 3, 2013, [the PCRA c]ourt sent [Appellant] notice of its
intent to dismiss his petition pursuant to Pa.R.Crim.P. 907.
Following Mr. Server’s filing of the [no merit] letter,
[Appellant] requested that Mr. Server be removed as
counsel. That request was granted on October 28, 2013.
On the same day, David S. Santee, Esq., was appointed to
represent [Appellant]. On November 19, 2013, Mr. Santee
filed a motion for leave to file an amended PCRA petition on
behalf of his client. Mr. Santee filed an amended PCRA
petition on February 18, 2014.
[Within the amended petition, Appellant claimed that, “[a]t
the time [Appellant] entered his plea of guilty, he believed
that it was a negotiated plea and that the Commonwealth
would recommend a sentence of 11½ to 23 months[’]
incarceration.” Appellant’s Amended PCRA Petition,
2/18/14, at ¶ 6. Appellant also claimed that – even though
he repeatedly acknowledged, prior to sentencing, that he
was entering an open plea of guilty – he “felt pressure to
[acknowledge the fact that it was an open plea, including by
signing plea forms which declared that his plea was open], .
. . believing that trial counsel would complete the forms
consistent with the plea negotiation that [Appellant]
believed was in place for a sentence of 11½ to 23 months[’]
incarceration.” Id. at ¶ 16. Appellant thus claimed that
trial counsel was ineffective for “inducing [Appellant] to
plead guilty by representing that [Appellant] would receive
a sentence of 11½ to 23 months of incarceration when no
such agreement had been made by the Commonwealth.”
Id. at ¶ 31(b)(i). Further, Appellant claimed that counsel
was ineffective for “failing to advise [Appellant] at
sentencing, when it became clear that the 11½ to 23
month[s’] sentence he promised was unlikely, that
[Appellant] could request to withdraw his guilty plea.” Id.
at ¶ 31(b)(ii).]
On September 18, 2014, [the PCRA court] held a hearing on
[Appellant’s] PCRA petition. [At the conclusion of the
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hearing, the PCRA court made the following factual
findings:]
...
There is no factual basis to support [Appellant’s] claim that
his guilty plea was unknowingly and involuntarily made. . . .
At the PCRA hearing, [Appellant] did not deny that he
entered an open guilty plea before [the trial court]. In
addition, [Appellant] testified that he grasp[ed] the
difference between an open guilty plea and a negotiated
guilty plea. He even readily acknowledged that [the trial
c]ourt never once made any reference to or mention of any
such negotiated plea agreement in the instant case.
Moreover, this was hardly [Appellant’s] first time in court
and he had previously entered guilty pleas in the past.
[Appellant] incredibly testified that he believed a negotiated
guilty plea was in place at the time of sentencing, despite
the fact that [the trial c]ourt made no reference to any such
agreement and despite the fact that [the trial c]ourt
explained to [Appellant] that he could face [ten] years of
incarceration for his open guilty plea. [Appellant] failed to
offer any rational or credible explanation as to why he did
not speak up and protest when [the trial court] sentenced
him to [five to ten] years of incarceration if he sincerely
believed he had negotiated a plea deal for 11½ to 23
months of incarceration. Being well-versed in the criminal
system, [Appellant] is hardly someone who would
misunderstand the difference between a negotiated and an
open guilty plea. Simply put, [the PCRA c]ourt did not
credit [Appellant’s] testimony at the PCRA hearing.
Meanwhile, at that same hearing, [Appellant’s plea counsel,
Lonnie Fish, Esq.], credibly testified that there was no
negotiated plea deal in place for his client and that this was
in fact an open guilty plea. Further, Mr. Fish credibly
testified that he never received instructions from his client
to file an appeal on [Appellant’s] behalf or withdraw
[Appellant’s] guilty plea. Mr. Fish [also testified] that he
“absolutely” would have notified the [trial court] if he had
received any instructions from his client [to withdraw the
guilty plea]. . . . Again, [the PCRA] court simply did not
believe anything that [Appellant] self-servingly testified to
at the PCRA hearing. . . .
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Moreover, notwithstanding his self-serving testimony,
[Appellant] manifestly failed to proffer any evidence that his
plea counsel was ineffective under the circumstances. The
record in the instant matter is totally void of any credible
evidence that [Appellant’s] open guilty plea was anything
but voluntary, intelligent, and knowing. It is abundantly
clear from the record that [Appellant] knew what was going
on in [the underlying] proceedings. On March 31, 2011,
[the trial c]ourt conducted a thorough and careful plea
colloquy:
[Trial Court:] [Appellant,] good morning. I understand
from your attorney that you’re going to plead guilty; is
that correct, sir?
[Appellant:] Yes.
[Trial Court:] Before I can accept your waiver, I do have
to ask you some questions to make sure you do
understand what rights you’re giving up.
[Appellant:] Yes.
[Trial Court:] How old are you?
[Appellant:] Fifty-three.
[Trial Court:] How far did you go in school?
[Appellant:] Tenth grade. I have my diploma.
[Trial Court:] So you read, write, and understand the
English language?
[Appellant:] Pretty much, yes.
[Trial Court:] Have you ever been treated for any
mental illnesses?
[Appellant:] No.
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[Trial Court:] Are you under the influence of any drugs
or alcohol or prescription medication that would prevent
you from understanding what’s happening here today?
[Appellant:] None.
[Trial Court:] I’m showing you the colloquy form.
[Appellant:] Yes.
[Trial Court:] Did you go over this form with your
attorney?
[Appellant:] Yes.
[Trial Court:] Did you understand that form?
[Appellant:] Yes.
[Trial Court:] Is this your signature at the bottom of the
page?
[Appellant:] Yes.
...
[Trial Court:] Your own attorney has indicated that
you’re pleading guilty to [18 Pa.C.S.A. § 6105], graded
as an F2; is that correct?
[Appellant:] Yes.
[Trial Court:] Carries a maximum of ten years in prison
with maximum fine of $25,000[.00]; do you understand
that?
[Appellant:] Yes.
...
[Trial Court:] I understand from your attorney, you
discussed this plea fully and he advised you of your
rights?
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[Appellant:] Yes.
[Trial Court:] At the end of this question and answer
portion, I will have accepted your plea, which means I
have made a judicial finding that your plea is proper.
That means it is unlikely it will be reversed or
overturned; do you understand that?
[Appellant:] Yes.
...
[Trial Court:] Once I hear the facts, if you choose, you
can withdraw your plea at the time; do you understand
that?
[Appellant:] Yes.
[Trial Court:] Once I hear the facts, if I [choose] not to
accept this plea at this point, you can withdraw it.
[Appellant:] Yes.
[Trial Court:] Were you promised anything in exchange
for your plea of guilty today?
[Appellant:] No, ma’am.
[Trial Court:] Were you threatened or forced?
[Appellant:] No.
[Trial Court:] Are you satisfied with the advice of your
attorney?
[Appellant:] Yes.
[Trial Court:] Do you have any question for your
attorney or the district attorney [] ?
[Appellant:] No, ma’am.
[Trial Court:] I find that [Appellant’s] guilty plea is
knowing, voluntary, and intentional and I accept it. . . .
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PCRA Court Opinion, 1-2 and 4-11 (internal citations omitted).
On September 18, 2014, the PCRA court denied Appellant’s PCRA
petition and Appellant filed a timely notice of appeal to this Court. Now on
appeal, Appellant raises the following claim:
The PCRA court erred in denying post-conviction relief
because Appellant testified that he believed he would
receive a sentence of 11½ to 23 months [of] incarceration,
plea counsel acknowledged that he discussed that very
sentence with Appellant, and plea counsel further
acknowledged that he never communicated his later
concerns to Appellant before the [trial] court imposed its
sentence.
Appellant’s Brief at 14 (some internal capitalization omitted).
As we have stated:
[t]his Court’s standard of review regarding an order
dismissing a petition under the PCRA is whether the
determination of the PCRA court is supported by evidence of
record and is free of legal error. In evaluating a PCRA
court’s decision, our scope of review is limited to the
findings of the PCRA court and the evidence of record,
viewed in the light most favorable to the prevailing party at
the trial level. We may affirm a PCRA court’s decision on
any grounds if it is supported by the record.
Commonwealth v. Rivera, 10 A.3d 1276, 1279 (Pa. Super. 2010) (internal
citations omitted).
To be eligible for relief under the PCRA, the petitioner must plead and
prove by a preponderance of the evidence that his conviction or sentence
resulted from “one or more” of the seven, specifically enumerated
circumstances listed in 42 Pa.C.S.A. § 9543(a)(2). One of these statutorily
enumerated circumstances is the “[i]neffectiveness of counsel which, in the
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circumstances of the particular case, so undermined the truth-determining
process that no reliable adjudication of guilt or innocence could have taken
place.” 42 Pa.C.S.A. § 9543(a)(2)(ii).
Counsel is, however, presumed to be effective and “the burden of
demonstrating ineffectiveness rests on [A]ppellant.” Commonwealth v.
Rivera, 10 A.3d 1276, 1279 (Pa. Super. 2010). To satisfy this burden,
Appellant must plead and prove by a preponderance of the evidence that:
(1) his underlying claim is of arguable merit; (2) the
particular course of conduct pursued by counsel did not
have some reasonable basis designed to effectuate his
interests; and, (3) but for counsel’s ineffectiveness, there is
a reasonable probability that the outcome of the challenged
proceedings would have been different.
Commonwealth v. Fulton, 830 A.2d 567, 572 (Pa. 2003). “A failure to
satisfy any prong of the test for ineffectiveness will require rejection of the
claim.” Id.
At the outset, we note a subtle discrepancy between the claim raised
in Appellant’s PCRA petition and the claim argued in Appellant’s brief to this
Court. As explained above, within Appellant’s PCRA petition, Appellant
claimed that “[a]t the time [Appellant] entered his plea of guilty, he believed
that it was a negotiated plea and that the Commonwealth would
recommend a sentence of 11½ to 23 months[’] incarceration.” Appellant’s
Amended PCRA Petition, 2/18/14, at ¶ 6 (emphasis added). Within the
petition, Appellant claimed that trial counsel was ineffective for: 1)
“inducing [Appellant] to plead guilty by representing that [Appellant] would
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receive a sentence of 11½ to 23 months of incarceration when no such
agreement had been made by the Commonwealth” and 2) “failing to advise
[Appellant] at sentencing, when it became clear that the 11½ to 23 month
sentence he promised was unlikely, that [Appellant] could request to
withdraw his guilty plea.” Id. at ¶¶ 31(b)(i) and (ii).
However, within Appellant’s brief to this Court, Appellant claims that,
prior to sentencing, his trial counsel had informed Appellant that “a sentence
of 11½ to 23 months[’] incarceration was a realistic possibility” and that
counsel would merely “ask for a sentence of 11½ to 23 months[’]
incarceration.” Appellant’s Brief at 19-20 and 22. According to the claim
argued in the appellate brief, when it became apparent that “a sentence of
11½ to 23 months was no longer realistic,” trial counsel had an obligation to
“communicate his concerns to Appellant before proceeding any further so
that Appellant could have decided whether to request permission to
withdraw his guilty plea before being sentenced.” Id. at 21 (internal
emphasis omitted).
In other words, the claim Appellant raises in his PCRA petition is
premised upon trial counsel’s alleged representation, to Appellant, that there
was a negotiated guilty plea in place, with which the Commonwealth was
required to abide – whereas the claim Appellant argues in his appellate brief
is premised upon the allegation that the guilty plea was open, but that trial
counsel informed Appellant that “a sentence of 11½ to 23 months[’]
incarceration was a realistic possibility.”
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Clearly, since Appellant did not raise the latter claim in his PCRA
petition, the claim is waived. Pa.R.A.P. 302(a) (“[i]ssues not raised in the
lower court are waived and cannot be raised for the first time on appeal”).
Moreover, to the extent Appellant preserved the claim that trial counsel was
ineffective for representing to Appellant that he was entering a negotiated
guilty plea – where “the Commonwealth would recommend a sentence of
11½ to 23 months[’] incarceration” – the claim fails. This is because the
PCRA court found, as a fact, that Appellant knew his guilty plea was open
and that trial counsel never represented to Appellant that the guilty plea was
negotiated. PCRA Court Opinion, 1/6/15, at 4-11. Since the PCRA court’s
factual findings are supported by the evidence of record, Appellant’s
underlying claim has no arguable merit. Appellant’s claim on appeal thus
fails.
Order affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/16/2015
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