Com. v. Wallace, P. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
PERRY LAMONT WALLACE
Appellant No. 68 EDA 2015
Appeal from the PCRA Order September 20, 2013
In the Court of Common Pleas of Montgomery County
Criminal Division at No(s): CP-46-CR-0008880-2004
BEFORE: BENDER, P.J.E., LAZARUS, J., and OTT, J.
MEMORANDUM BY LAZARUS, J.: FILED NOVEMBER 23, 2015
Perry Lamont Wallace appeals from the order, entered in the Court of
Common Pleas of Montgomery County, which dismissed his petition filed
pursuant to the Post Conviction Relief Act (PCRA).1 After our review, we
affirm.
On May 11, 2005, after a non-jury trial, Wallace was convicted of
rape,2 statutory sexual assault,3 indecent assault,4 terroristic threats,5
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1
42 Pa.C.S. §§ 9541-9546.
2
18 Pa.C.S. § 3121.
3
18 Pa.C.S. § 3122.1.
4
18 Pa.C.S. § 3126.
5
18 Pa.C.S. § 2706.
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possession of an instrument of crime,6 and corruption of minors.7 Wallace
was sentenced to serve three to six years’ imprisonment followed by ten
years of probation. On September 27, 2010, Wallace was released from
prison. The next day, Wallace was arrested for violating his probation
because his urine tested positive and he admitted to using cocaine. On
September 9, 2011, Wallace was sentenced to four to eight years’
imprisonment followed by ten years of probation based upon his violation of
probation.
Wallace filed a timely direct appeal, which resulted in this Court
affirming his judgment of sentence on May 9, 2012. See Commonwealth
v. Wallace, 50 A.3d 238 (Pa. Super. 2012) (unpublished memorandum).
Thereafter, on August 17, 2012, Wallace filed a timely pro se petition
pursuant to the PCRA. Wallace indicated that he wished to proceed pro se
even though he was entitled to court-appointed counsel. See Pa.R.Crim.P.
904(C). In accordance with Commonwealth v. Grazier, 713 A.2d 81 (Pa.
1998), the PCRA court held a hearing and determined that Wallace’s waiver
of counsel was knowing, intelligent and voluntary. The PCRA court filed a
notice of intent to dismiss the PCRA petition on August 27, 2013, and issued
____________________________________________
6
18 Pa.C.S. § 907.
7
18 Pa.C.S. § 6301.
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a final order dismissing the petition on September 20, 2013. Wallace did not
appeal.
On October 31, 2013, Wallace filed a second pro se PCRA petition.
The PCRA court issued a notice of intent to dismiss, to which Wallace
responded, asserting that he never received notice of dismissal of his first
PCRA petition. The PCRA court dismissed Wallace’s second PCRA petition on
January 14, 2014. After a timely appeal, this Court remanded for the PCRA
court to conduct further proceedings since Wallace did not receive the final
order of dismissal of his first PCRA petition until well after the deadline to file
a notice of appeal. See Commonwealth v. Wallace, 108 A.3d 113 (Pa.
Super. 2014) (unpublished memorandum).
The PCRA court issued an order directing Wallace to file his notice of
appeal from the dismissal of the first PCRA petition by January 11, 2015.
Acting pro se, Wallace timely filed his notice of appeal and court-ordered
concise statement of errors complained of on appeal pursuant to Pa.R.A.P.
1925(b). Wallace thereafter invoked his right to representation, and the
PCRA court appointed counsel.
On appeal, Wallace raises the following issues:
1. Is a stipulation to a violation of probation knowing, intelligent
and voluntary where there is no explanation of the maximum
penalty to the defendant?
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2. Should counsel be found to be ineffective where he fails to
explain the maximum penalty to a defendant at a Gagnon
II8 hearing?
Brief for Appellant, at 2.
Our standard and scope of review regarding the denial of a PCRA
petition is well-settled. We review the PCRA court’s findings of fact to
determine whether they are supported by the record, and review its
conclusions of law to determine whether they are free from legal error.
Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014). The scope of our
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. Id.A court may dismiss a PCRA petition without a hearing, and after
proper notice is given to the parties, when:
[T]he judge is satisfied from this review [of the petition] that
there are no genuine issues concerning any material fact
and that the defendant is not entitled to post-conviction
collateral relief, and no purpose would be served by any
further proceedings.
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8
See Gagnon v. Scarpelli, 411 U.S. 778 (1973) (when parolee or
probationer is detained pending revocation hearing, due process requires a
determination that probable cause exists to believe that violation has been
committed (Gagnon I hearing); where finding of probable cause has been
made, second, more comprehensive hearing is required before final
revocation decision can be made (Gagnon II hearing)).
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Pa.R.Crim.P. 907(1) (emphasis added). In particular, with respect to claims
of ineffective assistance of counsel, we begin with the presumption that
counsel is effective. Spotz, 84 A.3d at 315. To prevail on an
ineffectiveness claim, a petitioner must plead and prove, by a
preponderance of the evidence, three elements: (1) the underlying legal
claim has arguable merit; (2) counsel had no reasonable basis for his or her
action or inaction; and (3) the petitioner suffered prejudice because of
counsel’s action or inaction. Id. at 311. An ineffectiveness claim fails if the
petitioner’s evidence does not satisfy any one of the three prongs.
Commonwealth v. Busanet, 54 A.3d 35, 45 (Pa. 2012).
Wallace asserts that his stipulation to a violation of probation was not
knowing, intelligent, and voluntary because he was not informed of the
maximum sentence he could receive and that counsel was ineffective for
failing to so inform him. We note that
[w]e have never equated a probation revocation hearing with a
criminal trial. We have stated many times that the revocation
hearing is not a highly formal procedure in which traditional rules
of evidence and strict rules of procedure must be complied with.
However, recognizing that [a defendant] in agreeing not to
contest the alleged violations [gives] up important rights, . . .
some on the record showing must be made to determine
whether a waiver is voluntary.
Commonwealth v. Bell, 410 A.2d 843, 844 (Pa. Super. 1979).
The record indicates that during Wallace’s combined Gagnon I and II
hearing, a colloquy was conducted and Wallace was aware that he was
giving up certain rights. He acknowledged that the Commonwealth
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ordinarily would have to show probable cause in a Gagnon I hearing and
would have the burden to prove by a preponderance of the evidence that he
violated the terms of his supervision in a Gagnon II hearing. Wallace
indicated that no one had coerced him into stipulating that he violated his
probation or promised him anything in exchange.
However, Wallace argues that counsel “erroneously advised [him] that
the worst case [scenario was that he would] be paroled in 5 months because
the prosecution [was] requesting 1 to 2 years . . . [w]hen in fact a violation
of probation would expose him to a sentence of 7 to 14 years.” Amended
PCRA Petition, at 3. Indeed, Wallace’s colloquy includes nothing regarding
the maximum penalty he faced. In the analogous guilty plea context, trial
courts are required to ensure that defendants are aware of the permissible
range of sentences. Commonwealth v. Bedell, 954 A.2d 1209, 1212 (Pa.
Super. 2008). Thus, we find that Wallace’s ineffectiveness claim has
arguable merit.
Next, we note that
[w]ith regard to the reasonable basis prong, we will conclude
that counsel’s chosen strategy lacked a reasonable basis only if
the petitioner proves that the alternative strategy not selected
offered a potential for success substantially greater than the
course actually pursued. To establish the prejudice prong, the
petitioner must demonstrate that there is a reasonable
probability that the outcome of the proceedings would have been
different but for counsel’s ineffectiveness.
Busanet, 54 A.3d at 46. Though the record has not been developed
regarding counsel’s advice and rationale for the advice, Wallace is unable to
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establish that he was prejudiced in agreeing to stipulate to violating his
probation. The Commonwealth had evidence that Wallace confessed to
using cocaine and had urinalysis results to prove that he had done so. Thus,
no reasonable probability existed that the Commonwealth would not have
been able to show that Wallace had violated his probation. Busanet,
supra. Therefore, Wallace is entitled to no relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/23/2015
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