Com. v. Pagan, J. ( 2018 )

J-S04012-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JULIO PAGAN :
:
Appellant : No. 1179 MDA 2017
Appeal from the PCRA Order June 26, 2017
In the Court of Common Pleas of Lebanon County Criminal Division at
No(s): CP-38-CR-0001182-2015
BEFORE: SHOGAN, J., DUBOW, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY SHOGAN, J.: FILED MAY 01, 2018
Julio Pagan (“Appellant”) appeals from the June 26, 2017 denial of his
petition for relief filed pursuant to the Post Conviction Relief Act (“PCRA”),
42 Pa.C.S. §§ 9541–9546. After careful review, we affirm.
The PCRA court set forth the following factual and procedural history:
On July 27, 2015, [Appellant] was charged in this matter
with eight (8) counts of Violation of the Controlled Substance,
Drug, Device and Cosmetic Act for possession of various
controlled substances, including the following: heroin, cocaine,
crack cocaine, suboxone, marijuana; plus, twenty-nine glassine
bags, six knotted sandwich bags, three suboxone films, a digital
scale, and a smoking pipe.
[Appellant] pled guilty to the crimes cited above pursuant
to a plea agreement, which called for him to serve two (2) to
five (5) years in a State Correctional Facility. On April 20, 2016,
[the trial court] sentenced [Appellant] in accordance with
[Appellant’s] plea agreement. In addition, [the trial court] also
declared [Appellant] to be RRRI eligible and designated his RRRI
minimum at eighteen (18) months.
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On May 5, 2016, [Appellant] filed a petition for relief under
the [PCRA]. The sole issue raised dealt with time credit in
[Appellant’s] first PCRA petition. On June 29, 2016, [the PCRA
court] [o]rdered [Appellant’s] court-appointed counsel to work
with the Commonwealth regarding the calculation of time credit.
Thereafter, on July 25, 2016, [Appellant] withdrew his Petition.
[Appellant] then filed a second PCRA Petition on
December 5, 2016, alleging the following:
1) His guilty plea was unknowing and involuntary;
2) His counsel was ineffective for failure to ensure
he had an opportunity to withdraw his guilty plea;
3) He was deprived of due process; and
4) His sentence did not include credit for the time
he spent incarcerated prior to his sentencing, which
he claims was part of [his] plea agreement.
On March 17, 2017, upon consideration of [Appellant’s]
second Petition, [the PCRA court] deemed [Appellant’s] time
credit issue to have been waived, given that the issue of time
credit was raised and addressed within [Appellant’s] initial PCRA
Petition, and given that said PCRA Petition was withdrawn.
However, as [Appellant’s] second PCRA Petition was timely and
raised claims which were not addressed in his first Petition, the
[PCRA court] held a hearing on June 22, 2017.
After the hearing, [the PCRA Court] issued the following
findings:
1) [Appellant] did spend time in prison prior to his
sentencing, but that time was triggered by another
docket unrelated to the one now before the Court.
2) The parties never reached a plea agreement
calling for [Appellant] to receive pretrial concurrent
time. The plea agreement was stated in open court
to be “two to five years in a State Correctional
facility.” Therefore, at the time of sentencing,
[Appellant] received a sentence of two to five years
as appropriate.
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3) The written guilty plea form executed by
[Appellant] also articulates . . . the plea agreement
at “two to five years” and similarly makes no
reference of pretrial concurrent time.
4) [Appellant] entered a plea of guilty in open
court on February 17, 2016. At the time of his plea,
[Appellant’s] plea agreement of “two to five years”
was articulated verbally on the record.
5) [The PCRA court] found [Appellant’s] guilty
plea counsel to be credible.
6) There were no credible allegations of
ineffectiveness presented by [Appellant].
In addition to the above findings, [the PCRA court] addressed
the waived time credit issue raised by [Appellant] and cited that
the State Bureau of Corrections calculated [Appellant’s] sentence
in accordance with the Court’s Sentencing Order directive, which
specifically stated: [Appellant] shall be entitled to time credit for
all the time he/she spent incarcerated solely as the result of this
offense. However, he/she shall not be entitled to credit for any
time spent in prison on any other matter.
PCRA Court Opinion, 8/17/17, 2–4 (footnotes omitted). Following the
hearing, the PCRA court denied Appellant’s PCRA petition. Order, 6/26/17,
at 3. Appellant filed his timely notice of appeal to this Court on July 20,
2017.1
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1 Although an error in the computation of sentence by the Bureau of
Corrections is properly redressed by an original action in the Commonwealth
Court, challenges to the legality of sentence and to the trial court’s failure to
award credit for time served as required by the law are cognizable under the
PCRA. See Commonwealth v. Wyatt, 115 A.3d 876, 879 (Pa. Super.
2015).
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Appellant sets forth a single question for our review:
1. Did the Court of Common Pleas of Lebanon County err or
abuse its [discretion] in denying [Appellant’s] Post
Conviction Relief Act Petition?
Appellant’s Brief at 7.2
Our standard of review of a denial of PCRA relief is well settled. “In
conducting review of a PCRA matter, we consider the record in the light most
favorable to the prevailing party at the PCRA level.” Commonwealth v.
Stultz, 114 A.3d 865, 872 (Pa. Super. 2015) (citations and internal
punctuation omitted). Our review is limited to the findings of the PCRA court
and the evidence of record. Commonwealth v. Rykard, 55 A.3d 1177,
1183 (Pa. Super. 2012). Further, “[w]e will not disturb a PCRA court’s ruling
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2 At the outset, we note with displeasure that Appellant’s counseled brief
fails to conform to a number of rules of appellate procedure. Specifically,
Appellant failed to append the trial court opinion to his brief as required by
Pa.R.A.P. 2111(b). He also failed to include an averment that the PCRA
court did not direct Appellant to file a Pa.R.A.P. 1925(b) statement of errors
complained of on appeal, as required by Pa.R.A.P. 2111(d). Further,
Appellant has failed to include a transcript of the June 22, 2017 PCRA
hearing in the record and has failed to account for its absence, as required
by Pa.R.A.P. 1923, Statement in Absence of Transcript. Additionally,
Appellant failed to append any of the documents listed in the appendix to his
brief, namely an undated “Letter from Lebanon County Deputy Clerk of
Courts” and an undated “Letter from Pennsylvania Department of
Corrections.” Finally, we note that one page appears to be missing from the
Argument section of Appellant’s brief. Appellant’s Brief at 11–13. We
obtained a copy of the missing page. Despite the significant defects in
Appellant’s brief, we will address Appellant’s arguments. See
Commonwealth v. Adams, 882 A.2d 496, 498 (Pa. Super. 2005)
(addressing Appellant’s issues despite the shortcomings in the appellate
brief).
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if it is supported by evidence of record and is free of legal error.” Id. This
Court may affirm the PCRA court on any basis. Id. “We grant great
deference to the factual findings of the PCRA court and will not disturb those
findings unless they have no support in the record.” Id. “Where the
petitioner raises questions of law, our standard of review is de novo and our
scope of review is plenary.” Commonwealth v. Henkel, 90 A.3d 16, 20
(Pa. Super. 2014).
Before we address the merits of Appellant’s claim, we must determine
the impact that his first, withdrawn PCRA petition has on the instant petition.
“Where an Appellant has voluntarily withdrawn a previous post-conviction
petition, and then files a subsequent post-conviction petition, the second will
be dismissed unless the withdrawal of the first petition was not intelligent.”
Commonwealth v. Shaffer, 569 A.2d 360, 362 (Pa. Super. 1990). See
also 42 Pa.C.S. § 9544(b) (“For purposes of this subchapter, an issue is
waived if the petitioner could have raised it but failed to do so before trial, at
trial, during unitary review, on appeal or in a prior state postconviction
proceeding.”).
In his first PCRA petition, which was filed pro se, Appellant alleged that
he was in custody on June 12, 2015, through April 16, 2016, and should
have received credit for that time served. PCRA Petition, 5/5/16, at 3. He
further alleged that his trial counsel was ineffective for failing to argue that
he was entitled to 313 days credit for time served. Id. On June 29, 2016,
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the PCRA court ordered counsel for Appellant and counsel for the
Commonwealth to reach a stipulation regarding the status of the 313 days to
which Appellant claimed he was entitled credit, and granted leave for each
party to brief the issue after the stipulation was prepared. Order, 6/29/16,
at 1–2. Despite the PCRA court’s order, there is nothing in the record or on
the docket evincing any stipulation regarding the credit Appellant was due
for the 313 days served.
Thereafter, on July 25, 2016, Appellant filed a counseled petition to
withdraw his first PCRA petition. Petition to Withdraw PCRA Petition,
7/25/16. Appellant’s petition to withdraw states that after thorough review
with counsel, Appellant “stated that he wanted to withdraw said petition.”
Id. at ¶ 3. Further, Appellant represented that he “understands the
consequences of withdrawal and consents to a withdrawal of his appeal.”
Id. at ¶ 4. Moreover, Appellant signed a verification in which he
acknowledged that the statements made in the petition to withdraw were
true and correct. Id., Exhibit A. The trial court granted Appellant’s petition
to withdraw his PCRA petition on July 27, 2016.
Appellant filed a second, timely, pro se PCRA petition on December 5,
2016. In that petition, he argued that the Department of Corrections erred
when it refused to award him credit for time served. PCRA petition,
12/2/16, at 3. He further alleged that “the Lebanon County prison, the clerk
of court, and the district attorney assured [him] that the time in question
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‘has been’ credited to the sentence imposed in this matter.” Id. at 4.
Appellant also alleged that his counsel was ineffective for “failing to ensure
[Appellant] had an opportunity to withdraw [his] guilty plea after sentencing
judge sentenced [him] outside of the negotiated plea agreement. . . .” Id.3
Appellant ultimately sought to have his sentence corrected. Id. at 6. The
PCRA court appointed counsel for Appellant and held a hearing on June 22,
2017. Following the hearing, the PCRA court denied Appellant’s petition.
In its opinion, the PCRA court found that, “upon consideration of
[Appellant’s] second Petition, we deemed [Appellant’s] time credit issue to
have been waived, given that the issue of time credit was raised and
addressed within the [Appellant’s] initial PCRA petition, and given that said
PCRA petition was withdrawn.” PCRA Court Opinion, 8/17/17, at 3.
We agree.
Indeed, although on appeal, Appellant baldly asserts that he withdrew
his petition because he incorrectly believed that proper credit would be or
had been applied to his sentence, it is uncontroverted that Appellant
voluntarily withdrew his PCRA petition after thorough review with his counsel
____________________________________________
3 There is no discussion or analysis of any alleged ineffectiveness of counsel
in his brief to this Court. Thus, we find Appellant has abandoned the
ineffective assistance of counsel argument contained in his second PCRA
Petition. Commonwealth v. Bullock, 948 A.2d 818, 823 (Pa. Super.
2008).
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and with knowledge of the attendant consequences.4 See infra. Thus, his
withdrawal was intelligent and Appellant has waived any argument relating
to the credit for time served. See Shaffer, 569 A.2d at 362.
Even if we were to reach the merits of Appellant’s appeal, we would
affirm the PCRA court’s order. The April 20, 2016 sentencing order in this
case contains the following unambiguous language: “The Defendant shall be
entitled to credit for all the time he/she spent incarcerated solely as a result
of this offense. However, he/she shall not be entitled to credit for any time
spent in prison on any other matter.” Sentencing Order, 4/20/16, at 5. The
time Appellant served prior to his guilty plea in this case was “triggered by
another docket unrelated to the one now before the [c]ourt].” PCRA Court
Opinion, 8/17/17, at 3. The PCRA court further noted that the plea
agreement entered into by the parties did not contain a provision calling for
Appellant to receive pretrial concurrent time. Id. Indeed, the plea
agreement occurred in open court and contained the following colloquy:
THE COURT: Is there a plea agreement?
[APPELLANT’S COUNSEL]: Two-to-five years in the state
correctional facility.
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4 In his brief, Appellant specifically alleges that he withdrew his first petition
“after being assured by his prior counsel that the 313 days were
appropriately applied” and that Appellant “was assured by prior counsel that
this credit would be applied to the sentence at issue in this matter.”
Appellant’s Brief at 13.
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THE COURT: Mr. Pagan, do you understand and
do you accept your plea
agreement?
APPELLANT: Yes, your honor.
Notes of Testimony (“N.T.”), Guilty Plea, 2/17/16, at 3. Similarly, the record
at Appellant’s sentencing is devoid of any discussion of credit for time served
in the plea agreement or otherwise. N.T., Sentencing, 4/20/16.
On appeal, Appellant’s entire argument is based upon his averments
alone. Indeed, he “avers that his negotiated plea agreement included credit
for the 313 days at issue in this matter.” Appellant’s Brief at 13. He “avers”
he was told by his plea counsel and the clerk of courts that he would receive
313 days credit for time served. Id. He “avers” he was told by prior PCRA
counsel that he would receive the credit and that is why he withdrew his
prior PCRA petition. Id. Appellant provides no evidence in support of these
allegations.5
Moreover, his claims are directly contradicted by the PCRA court in its
opinion. The court held a hearing on Appellant’s second PCRA petition and
issued findings which included the fact that the parties “never reached a plea
agreement for [Appellant] to receive pretrial concurrent time. The
____________________________________________
5 In the Statement of the Case portion of his brief, Appellant cites to two
letters, one from the Deputy Clerk of Courts and one from the Pennsylvania
Department of Corrections, in which he allegedly was informed that he was
entitled to credit for the 313 days served. Although Appellant claims to have
appended the letters as Exhibits B and C to his brief, there are no such
appendices.
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agreement was stated to be ‘two to five years in a state correctional facility.’
Therefore, at the time of sentencing, [Appellant] received a sentence of two
to five years as appropriate.” PCRA Court Opinion, 8/17/17, at 4. The PCRA
court further found Appellant’s plea counsel to be credible.6 Finally, the
PCRA court noted:
Here, [Appellant] was unable to establish any credible
evidence to support his bald allegation of ineffective assistance
of counsel during his guilty plea or sentencing, nor was there a
showing that [Appellant’s] guilty plea in open court was
involuntary. In addition, it is clear that [the sentencing court]
sentenced [Appellant] in accordance with his plea agreement.
Id. at 6. We will not disturb the PCRA court’s credibility determinations as
they relate to Appellant and his trial/PCRA counsel. Commonwealth v.
Spotz, 18 A.3d 244, 259 (Pa. 2011) (The PCRA Court’s credibility
determinations, when supported by the record, are binding. . . .”). To the
extent that the record is available to us, it wholly supports the PCRA court’s
determinations, and Appellant has failed to show any error on behalf of the
PCRA court in its denial of his PCRA petition.
Order affirmed.
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6 Although this Court attempted to obtain a copy of the video or transcript
of Appellant’s June 22, 2017 PCRA hearing we were unable to do so. Thus,
we are limited in our ability to determine error on the part of the PCRA
court. It is undisputed that “the ultimate responsibility of ensuring that the
transmitted record is complete rests squarely upon the appellant and not
upon the trial court.” Commonwealth v. Preston, 904 A.2d 1, 7 (Pa.
Super. 2006) (citing Pa.R.A.P. 1931).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 05/01/2018
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