Com. v. Hallett, J. ( 2014 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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. :
:
JASON ROBERT HALLETT, : No. 1287 EDA 2013
:
Appellant :
Appeal from the PCRA Order, April 24, 2013,
in the Court of Common Pleas of Bucks County
Criminal Division at No. CP-09-CR-0001117-2012
BEFORE: FORD ELLIOTT, P.J.E., BOWES AND SHOGAN, JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.:FILED DECEMBER 17, 2014
Appellant appeals from the order denying his first petition filed
pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541 to
9546. Finding no error, we affirm.
On May 14, 2012, appellant pleaded guilty to multiple counts of
possession of a controlled substance (heroin) with intent to deliver,
endangering the welfare of children, and corruption of a minor. The
endangerment/corruption convictions arose from the fact that appellant
actively employed his two minor daughters in his heroin business. At the
conclusion of the guilty plea hearing, the court sentenced appellant to an
aggregate term of 6 to 12 years’ imprisonment.
On May 16, 2012, trial counsel, John Fioravanti, Jr., Esq., filed a
motion for reconsideration of sentence. At a hearing on the motion on
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September 17, 2012, upon the advice of new counsel,
Keith McAndrews, Esq., appellant withdrew the motion. New counsel
advised appellant that since he actually wanted to challenge trial counsel’s
effectiveness, he should proceed pursuant to a PCRA petition.
On October 15, 2012, appellant timely filed a pro se PCRA petition.
On January 16, 2013, the court appointed Stuart Wilder, Esq., as counsel for
appellant. On March 14, 2013, appellant filed an amended, counseled PCRA
petition. A hearing was held on April 11, 2013, and on April 25, 2013, the
PCRA court denied appellant’s petition. This timely appeal followed.
On appeal, we note that PCRA counsel has filed a “no-merit” brief and
petition to withdraw pursuant to Turner-Finley practice. See
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v.
Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc). We must first review
whether counsel has met the requirements for permission to withdraw
pursuant to Turner-Finley. Those requirements are:
As set forth above, counsel has filed in this
Court an Application to withdraw and an appellate
brief. In Commonwealth v. Pitts, 603 Pa. 1, 981
A.2d 875 (2009), our Pennsylvania Supreme Court
stated that
[i]ndependent review of the record by
competent counsel is required before
withdrawal is permitted. Turner, at 928
(citing Pennsylvania v. Finley, 481
U.S. 551, 558, 107 S.Ct. 1990, 95
L.Ed.2d 539 (1987)). Such independent
review requires proof of:
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1) A “no-merit” letter by PC[R]A
counsel detailing the nature
and extent of his review;
2) The “no-merit” letter by
PC[R]A counsel listing each
issue the petitioner wished to
have reviewed;
3) The PC[R]A counsel's
“explanation”, in the
“no-merit” letter, of why the
petitioner's issues were
meritless;
4) The PC[R]A court conducting
its own independent review
of the record; and
5) The PC[R]A court agreeing
with counsel that the petition
was meritless.
Pitts, 981 A.2d at 876 n. 1 (quoting Finley, 550
A.2d at 215).
Commonwealth v. Widgins, 29 A.3d 816, 817-818 (Pa.Super. 2011).
Additionally, Widgins resurrected from Commonwealth v. Friend,
896 A.2d 607 (Pa.Super. 2006), the requirement that counsel must serve a
copy of the petition to withdraw and no-merit brief on the PCRA petitioner,
and inform the petitioner that if counsel is permitted to withdraw, the
petitioner has the right to proceed pro se or with privately retained counsel.
Widgins, 29 A.3d at 818. We have reviewed counsel’s motion to withdraw
and no-merit brief and have found that they comport with these
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requirements; thus, our only remaining task is to review appellant’s issues
to determine whether they have merit.
Appellant raises the following issues on appeal:
a. Counsel was ineffective under the Sixth and
Fourteenth Amendments to the United States
Constitution and Art. I, §9 of the Pennsylvania
Constitution for failing to adequately consult
with the Defendant following his sentencing
about his post-sentence and appellate rights,
and specifically about filing a motion to
withdraw his guilty plea when he did not
receive the sentence his lawyer promised him
he would receive, i.e., three to six years
incarceration, and the Court failed to advise
him of his potential aggregate sentence; and
b. Counsel was ineffective under the Sixth and
Fourteenth Amendments to the United States
Constitution and Art I, §9 of the Pennsylvania
Constitution for not filing a motion to withdraw
the Defendant's guilty plea when he did not
receive a sentence of three to six years, as
counsel promised him he would, and the Court
failed to advise him of his potential aggregate
sentence; and
c. Post-sentence counsel was ineffective under
the Sixth and Fourteenth Amendments to the
United States Constitution and Art I, §9 of the
Pennsylvania Constitution for advising the
Defendant to withdraw his motion to
reconsider or modify sentence, as Defendant
could have used that vehicle to press his claim
that the sentence imposed was unreasonable.
Turner-Finley brief at 2-3.1
1
The pages of the brief are unnumbered; this is by our count.
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Our standard of review for an order denying post-conviction 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.
Franklin, 990 A.2d 795, 797 (Pa.Super. 2010). The PCRA court’s findings
will not be disturbed unless there is no support for the findings in the
certified record. Id.Moreover, as appellant’s issues on appeal are stated in terms of
ineffective assistance of counsel, we also note that appellant is required to
make the following showing in order to succeed with such a claim: (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.
Rivera, 10 A.3d 1276, 1279 (Pa.Super. 2010). The failure to satisfy any
prong of this test will cause the entire claim to fail. Commonwealth v.
Daniels, 947 A.2d 795, 798 (Pa.Super. 2008). Finally, counsel is presumed
to be effective, and appellant has the burden of proving otherwise.
Commonwealth v. Pond, 846 A.2d 699, 708 (Pa.Super. 2003).
In his first claim, appellant contends that counsel failed to adequately
consult with him after sentencing regarding his appellate rights and about
withdrawing his guilty plea. However, Attorney Fioravanti testified at the
PCRA hearing that he met appellant in his holding cell on the morning of the
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guilty plea and discussed with him the possibility of a guilty plea as well as
appellant’s appellate rights. (Notes of testimony, 4/11/14 at 55-56.)
Attorney Fioravanti told appellant that following sentencing, it was very
difficult to withdraw a guilty plea. (Id.) Attorney Fioravanti also stated that
in the weeks prior to the plea, he discussed with appellant the possibility of
pleading guilty, and appellant ultimately said he wanted to plead because he
knew what the evidence was.2 (Id. at 55.) Attorney Fioravanti testified that
after the plea, appellant wrote him letters but never asked him to file a
motion to withdraw the plea. (Id. at 58.) After the plea hearing,
Attorney Fioravanti instead filed a motion to reconsider sentence upon
appellant’s request. (Id. at 57-58.)
At the PCRA hearing, appellant claimed that Attorney Fioravanti never
discussed a guilty plea with him, essentially tricked appellant into signing off
on the guilty plea, and that appellant was not even aware that he had
pleaded guilty until he arrived at the state prison. (Id. at 2-8; 27-28.) In
its opinion, the PCRA court specifically found appellant’s account in this
regard to be incredible. (PCRA court opinion, 11/19/13 at 13.) We note
that we are bound by the credibility determinations of the court where they
are supported by the record. Commonwealth v. Stewart, 84 A.3d 701,
2
The Commonwealth possessed a videotape which depicted appellant and
one of his minor daughters participating during one of the heroin sales.
(Notes of testimony, 5/14/12 at 20-21.)
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711 (Pa.Super. 2013), appeal denied, 93 A.3d 463 (Pa. 2014).
Consequently, we cannot accept appellant’s account.
Moreover, during the guilty plea colloquy, the court explained in detail
to appellant the impact of a guilty plea upon his appellate rights. (Notes of
testimony, 5/14/12 at 7-8.) Finally, after imposing appellant’s sentence, the
court explained appellant’s appellate rights to him. (Id. at 49.) Thus, even
if counsel failed to properly advise appellant, he cannot meet the prejudice
prong of the test for ineffectiveness because the trial court explained these
matters to him. We find that trial/plea counsel was not ineffective in this
regard.
Next, in the last part of his first issue and in his second issue,
appellant claims that trial counsel was ineffective in failing to file a motion to
withdraw his plea when appellant failed to receive the three to six-year
sentence that counsel promised him he would receive.
At the PCRA hearing, appellant admitted that neither
Attorney Fioravanti nor anybody else promised him what his sentence would
be. (Notes of testimony, 4/11/14 at 10.) Attorney Fioravanti also testified
that he did not promise appellant any sentence. (Id. at 56.)
Attorney Fioravanti explained that the Commonwealth had made a three to
six-year plea offer which appellant eventually rejected because he believed
he could do better at trial. (Id. at 50-54.) Thus, appellant’s underlying
issue is without merit because he was never promised any particular
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sentence, and there was, therefore, no reason to move to withdraw the plea
on this basis. There is no ineffectiveness here.
In his final issue, appellant complains that Attorney McAndrews was
ineffective in advising appellant to withdraw his motion for reconsideration of
his sentence. Attorney McAndrews explained at the PCRA hearing that when
he contacted appellant, appellant’s main complaint was that he had a plea
deal under which he was to receive a three to six-year sentence but had not
received that sentence. (Id. at 33-36.) Attorney McAndrews further related
that because the failure to receive a bargained sentence implicated
Attorney Fioravanti’s effectiveness, the PCRA was the proper vehicle to raise
this claim. (Id. at 39-41.) It is well settled that issues pertaining to
ineffective assistance of counsel should be raised on collateral review under
the PCRA. Commonwealth v. Grant, 813 A.2d 726 (Pa. 2002). We find
that Attorney McAndrews had a valid strategic reason in advising appellant
to withdraw the motion to reconsider sentence and instead pursue a PCRA
petition. Appellant cannot satisfy the second prong of the test for
ineffectiveness.
Finally, the PCRA court noted that at the time of sentencing the court
remarked that “anything less than a 6-year sentence diminishes the
seriousness of what happened.” (PCRA court opinion, 11/19/13 at 14,
quoting notes of testimony, 5/14/12 at 46.) Thus, the outcome of the
motion to reconsider sentence would likely not have changed the sentence.
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Appellant cannot meet the third prong of the test for ineffectiveness. There
is no merit to this issue.
Accordingly, having found no error in the issues raised on appeal, we
will affirm the order below.
Order affirmed. Counsel permitted to withdraw.
Shogan, J. joins the memorandum.
Bowes, J. concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/17/2014
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