Com. v. Shelley, D. ( 2018 )


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  • J-S57018-18
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
    :        PENNSYLVANIA
    Appellee             :
    :
    v.                         :
    :
    DANIEL SHELLEY                          :
    :
    Appellant             :       No. 794 EDA 2018
    Appeal from the PCRA Order August 3, 2017
    in the Court of Common Pleas of Philadelphia County
    Criminal Division at No.: CP-51-CR-0001363-2012
    BEFORE:    PANELLA, J., PLATT*, J., and STRASSBURGER*, J.
    MEMORANDUM BY PLATT, J.:                       FILED NOVEMBER 09, 2018
    Appellant, Daniel Shelley, appeals nunc pro tunc from the dismissal of
    his first petition filed pursuant to the Post Conviction Relief Act (PCRA), 42
    Pa.C.S.A. §§ 9541-9546. We affirm.
    We take the procedural and factual background of this matter from our
    independent review of the certified record and the PCRA court’s May 18, 2018
    opinion.   On October 11, 2011, police arrested Appellant for murder and
    related charges. The charges arose from an incident in which Appellant fatally
    shot an innocent bystander when he opened fire on his intended target and
    missed. Appellant entered a negotiated guilty plea to third degree murder on
    April 3, 2013. In return, the Commonwealth withdrew a first-degree murder
    charge and its recommendation of a life sentence. The court sentenced him
    ____________________________________
    * Retired Senior Judge assigned to the Superior Court.
    J-S57018-18
    to the agreed upon aggregate term of not less than twenty-two and one-half
    nor more than forty-five years of incarceration.
    On April 17, 2013, the trial court denied Appellant’s motion to withdraw
    his guilty plea, and this Court affirmed the judgment of sentence on January
    12, 2016. (See Commonwealth v. Shelley, 
    2016 WL 128545
    , at *1 (Pa.
    Super. filed Jan. 12, 2016) (unpublished memorandum)). Appellant filed a
    PCRA petition on January 27, 2017 with the assistance of counsel. On June
    29, 2017, the PCRA court provided notice of its intent to dismiss the petition
    without a hearing.      See Pa.R.Crim.P. 907(1).    The PCRA court denied the
    petition on August 3, 2017, and a panel of this Court dismissed his appeal for
    the failure to file a docketing statement. On March 15, 2018, the PCRA court
    granted Appellant’s petition to reinstate his appeal rights nunc pro tunc. He
    now timely appeals nunc pro tunc.1
    Appellant raises two questions for this Court’s review:
    1.    Was plea counsel ineffective and did Appellant suffer
    prejudice because Appellant’s guilty plea was not voluntary due to
    the fact that he was not orally advised of the presumption of
    innocence or the elements of the charges, there was no inquiry as
    to the right to a jury trial as well as associated rights, and there
    was no inquiry as to whether Appellant understood the written
    colloquy in English and whether the written colloquy was fully
    discussed with plea counsel?
    2.    Did the PCRA court err in failing to conduct an evidentiary
    hearing in relation to plea counsel’s failure to interview and
    ____________________________________________
    1 Pursuant to the PCRA court’s order, Appellant filed a timely statement of
    errors complained of on appeal on April 4, 2018. The court filed an opinion
    on May 18, 2018. See Pa.R.A.P. 1925.
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    J-S57018-18
    investigate eyewitnesses, Briana Shelly and Tiffany Wright, as well
    as alibi witness, Anna Lewis, because only an evidentiary hearing
    could assess plea counsel’s role in inducing fourth-grade educated
    Appellant to enter a plea due to plea counsel’s lack of
    preparedness for trial?
    (Appellant’s Brief, at 4).
    “Our standard of review of a [PCRA] court order granting or denying
    relief under the PCRA calls upon us to determine whether the determination
    of the PCRA court is supported by the evidence of record and is free of legal
    error.”   Commonwealth v. Pier, 
    182 A.3d 476
    , 478 (Pa. Super. 2018)
    (citation omitted).
    In his first issue, Appellant maintains that plea counsel was ineffective
    for conducting a defective guilty plea colloquy, resulting in an involuntary plea.
    (See Appellant’s Brief, at 8-13). This issue does not merit relief.
    . . . To prevail on a claim of ineffective assistance of counsel,
    a PCRA petitioner must prove each of the following: (1) the
    underlying legal claim was of arguable merit; (2) counsel had no
    reasonable strategic basis for his action or inaction; and (3) the
    petitioner was prejudiced—that is, but for counsel’s deficient
    stewardship, there is a reasonable likelihood the outcome of the
    proceedings would have been different.
    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 defendant to
    enter an involuntary or unknowing plea. Where the
    defendant enters his plea on the advice of counsel, the
    voluntariness of the plea depends on whether
    counsel’s advice was within the range of competence
    demanded of attorneys in criminal cases.
    Thus, to establish prejudice, the defendant must show that
    there is a reasonable probability that, but for counsel’s errors, he
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    would not have pleaded guilty and would have insisted on going
    to trial.
    Pier, supra at 478-79 (citations, quotation marks, and footnote omitted).
    “The law does not require that appellant be pleased with the outcome of his
    decision to enter a plea of guilty[.]” Commonwealth v. Bedall, 
    954 A.2d 1209
    , 1212 (Pa. Super. 2008), appeal denied, 
    964 A.2d 893
    (Pa. 2009)
    (citation omitted).
    The guilty plea colloquy must affirmatively demonstrate that
    the defendant understood what the plea connoted and its
    consequences. Once a defendant has entered a plea of guilty, it
    is presumed that he was aware of what he was doing, and the
    burden of proving involuntariness is upon him. In determining
    whether a guilty plea was entered knowingly and voluntarily, . . .
    a court is free to consider the totality of the circumstances
    surrounding the plea. Furthermore, nothing in the rule precludes
    the supplementation of the oral colloquy by a written colloquy that
    is read, completed, and signed by the defendant and made a part
    of the plea proceedings.
    
    Id. at 1212-13
    (citations and quotation marks omitted).
    In the present case, Appellant completed a written colloquy in which he
    confirmed that he knew the charges to which he was pleading guilty, the
    elements the Commonwealth was required to prove, and the potential
    sentences that could be imposed. (See Written Guilty Plea Colloquy, 4/03/13,
    at 1-2).   He certified that he understood: his right to a jury trial, the
    presumption of innocence, that he was giving up pre-trial rights, and his
    limited grounds for appeal.     (See 
    id. at 1-3).
         He also expressed his
    satisfaction with counsel, that the facts of the case had been explained to him,
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    and he was pleading guilty because he committed the charged crimes. (See
    
    id. at 1,
    3).
    At the oral guilty plea, Appellant confirmed that counsel had discussed
    the evidence against him, and the possible outcomes.        (See N.T. Hearing,
    4/03/13, at 9, 16).       He affirmed that he understood the Commonwealth’s
    burden of proof, his trial rights, and that the fact-finder would determine the
    trial outcome. (See 
    id. at 9-12).
    He provided accurate testimony about his
    date of birth and age, and ably answered the questions of both the court and
    counsel. (See 
    id. at 6-19,
    37-40).
    Based on the foregoing, we conclude that the record supports the PCRA
    court’s denial of Appellant’s claim, that counsel was ineffective for providing a
    deficient plea colloquy that resulted in a unknowing and involuntary plea.2,    3
    See Pier, supra at 478; Bedall, supra at 1212-13. Appellant’s first issue
    does not merit relief.
    ____________________________________________
    2 The PCRA court also noted counsel’s advice to plead guilty was reasonable
    where Appellant faced a potential life sentence if he went to trial, and counsel
    negotiated a term of years in exchange for the Commonwealth withdrawing
    the first-degree murder charge. (See PCRA Court Opinion, 5/18/18, at 5).
    3 Moreover, Appellant’s claim that he only reads at a fourth grade level and
    therefore he could not understand the colloquy lacks merit where he provides
    nothing to support this allegation, the record reflects that he attended school
    until the twelfth grade, and he affirmed that he understood the consequences
    of pleading guilty. See Brown, infra. at 1277; (see also N.T. Hearing, at 6-
    19, 37-40; Written Guilty Plea Colloquy, at 1).
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    In his second issue, Appellant complains that the court erred in not
    holding a hearing on his claim that counsel was ineffective for failing to
    interview and investigate witnesses. (See Appellant’s Brief, at 14-16). This
    claim does not merit relief.
    It is well-settled that:
    [A] petitioner is not entitled to a PCRA hearing as a matter of
    right; the PCRA court can decline to hold a hearing if there is no
    genuine issue concerning any material fact and the petitioner is
    not entitled to post-conviction collateral relief, and no purpose
    would be served by any further proceedings. A reviewing court
    on appeal must examine each of the issues raised in the PCRA
    petition in light of the record in order to determine whether the
    PCRA court erred in concluding that there were no genuine issues
    of material fact and in denying relief without an evidentiary
    hearing.
    Commonwealth v. Smith, 
    121 A.3d 1049
    , 1052 (Pa. Super. 2015), appeal
    denied, 
    136 A.3d 981
    (Pa. 2016) (citations and quotation marks omitted);
    see also Pa.R.Crim.P. 907.
    To prove prejudice for counsel’s failure to call a witness, a petitioner
    must establish that the witness existed and was available and willing to testify;
    and that counsel knew of, or should have known of the witness.              See
    Commonwealth v. Pander, 
    100 A.3d 626
    , 639 (Pa. Super. 2014), appeal
    denied, 
    109 A.3d 679
    (Pa. 2015).       Also, in the context of a guilty plea, a
    defendant must prove “that there is a reasonable probability that, but for
    counsel’s errors, he would not have pleaded guilty and would have insisted on
    going to trial.” Pier, supra at 479 (citation omitted).
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    Here, Appellant claims that, if counsel had interviewed his proposed
    witnesses, they would have rebutted the Commonwealth’s identification and
    flight theories, and provided him with an alibi. (See Appellant’s Brief, at 14-
    15).    However, Appellant admitted his guilt, and he is bound by that
    admission. See Commonwealth v. Brown, 
    48 A.3d 1275
    , 1277 (Pa. Super.
    2012), appeal denied, 
    63 A.3d 773
    (Pa. 2013) (“A defendant is bound by the
    statements made during the plea colloquy, and a defendant may not later
    offer reasons for withdrawing the plea that contradict statements made when
    he pled.”) (citation omitted).   As additionally observed by the PCRA court,
    Appellant was aware of, and informed counsel about, the alleged alibi witness
    before trial, but he elected to plead guilty, and take the negotiated sentence,
    instead. (See PCRA Ct. Op., at 7).
    Based on the foregoing, and our independent review of the certified
    record, we conclude that it supports the PCRA court’s finding that Appellant
    failed to create a genuine issue of material fact on his claim of counsel’s
    ineffectiveness for failure to investigate potential witnesses. See Pander,
    supra at 639.     Appellant’s second issue lacks merit and the PCRA court
    properly denied his petition without a hearing. See Smith, supra at 1052.
    Order affirmed.
    -7-
    J-S57018-18
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 11/9/18
    -8-
    

Document Info

Docket Number: 794 EDA 2018

Filed Date: 11/9/2018

Precedential Status: Precedential

Modified Date: 11/9/2018