Com. v. Roundtree, D. ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
DONNIEL ROUNDTREE, :
:
Appellant : No. 556 EDA 2017
Appeal from the PCRA Order January 5, 2017
in the Court of Common Pleas of Lehigh County,
Criminal Division at No(s): CP-39-CR-0001605-2014
BEFORE: BENDER, P.J.E., MUSMANNO, J., and STEVENS*, P.J.E.
MEMORANDUM BY MUSMANNO, J.: FILED JANUARY 18, 2018
Donniel Roundtree (“Roundtree”), pro se, appeals from the Order
dismissing his first Petition filed pursuant to the Post Conviction Relief Act
(“PCRA”). See 42 Pa.C.S.A. §§ 9541-9546. We affirm.
At the guilty plea hearing, Roundtree agreed to the following factual
summary presented by the Commonwealth:
[O]n April 8, 2014, at approximately 1:25 p.m., Pennsylvania
State Police were monitoring westbound traffic on Interstate 78.
At that time[,] they observed a tan 2013 Chevrolet Tahoe
traveling 63 miles per hour in a 55 mile per hour speed zone.
…
Trooper [Thomas] Fleisher conducted a vehicle stop in the area
of mile marker 60.1, which is Exit 57, which is Upper Saucon
Township, Lehigh County. At that time[,] [] Roundtree was in
the front [passenger seat] in the Chevy Tahoe. After some
questioning by the troopers, they eventually made a search of []
Roundtree and they found that he was concealing in his anus
two plastic bags[, which contained heroin]. They were recovered
by Trooper Jonathan Gerken and submitted to the Pennsylvania
____________________________________
* Former Justice specially assigned to the Superior Court.
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State Police. One bag came back weighing 30.37 grams. The
second bag was 30.16 grams, for a total of 60.53 grams of
heroin, and [Roundtree] possessed that with the intent to
deliver. Also recovered from the Chevy Tahoe was one []
cardboard box[] with the small glassine packages that are
commonly used to package heroin.
N.T., 1/5/15, at 9-10 (paragraph breaks omitted).
Roundtree was charged with three counts of possession of a controlled
substance and one count each of possession with intent to deliver a
controlled substance (heroin), possession of a small amount of marijuana,
and possession of drug paraphernalia. On June 10, 2014, Roundtree filed a
Motion to Suppress physical evidence, on the basis that the evidence was
seized as a result of an illegal stop, detention, and search. Following a
hearing, the trial court denied Roundtree’s Motion to Suppress.
On January 5, 2015, Roundtree entered a negotiated guilty plea to
possession with intent to deliver, with the agreement that his minimum
sentence would not exceed 5 years. The trial court accepted Roundtree’s
guilty plea, and sentenced him to a term of 5 to 10 years in prison.
Roundtree did not file post-sentence motions or a direct appeal.
On January 27, 2016, Roundtree, pro se, filed the instant PCRA
Petition. The PCRA court appointed Roundtree counsel, who filed an
Amended Petition on Roundtree’s behalf. PCRA counsel subsequently filed a
Petition for permission to withdraw from representation, and a “no-merit”
letter pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988),
and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
The PCRA court granted PCRA counsel permission to withdraw. On
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November 16, 2016, the PCRA court issued a Notice of its intention to
dismiss Roundtree’s Petition without a hearing, pursuant to Pa.R.Crim.P.
907. After receiving an extension of time to respond to the Rule 907 Notice,
Roundtree filed a Response. The PCRA court dismissed Roundtree’s Petition
on January 5, 2017. Roundtree filed a timely Notice of Appeal and a court-
ordered Pa.R.A.P. 1925(b) Concise Statement of errors complained of on
appeal.
On appeal, Roundtree raises the following questions for our review:
1. Whether trial counsel provided ineffective assistance of
counsel when advising [Roundtree] to tak[e] a guilty plea, that
was a direct result of an illegal search and seizure, arising from
an unlawful traffic stop and search/pat[-]down?
2. Whether trial counsel provided ineffective assistance of
counsel when advising [Roundtree] to tak[e] a guilty plea of an
illegal sentence, that was a direct result of an illegal search and
seizure, arising from an unlawful traffic stop/pat[-]down?
3. Whether PCRA counsel was ineffective for failing to appeal
trial counsel’s failure in advising [Roundtree] to tak[e] a guilty
plea, that was a direct result of an illegal search and seizure,
arising from an unlawful traffic stop and search/pat[-]down?
4. Whether PCRA counsel was ineffective for failing to appeal
trial counsel’s failure of effective assistance of counsel when
advising [Roundtree] to tak[e] a guilty plea of an illegal
sentence, that was a direct result of an illegal search and
seizure, arising from an unlawful traffic stop and
search/pat[-]down?
5. Whether trial counsel … provided ineffective assistance of
counsel when he failed to suppress the illegal search and
seizure, arising from the unlawful traffic stop and
search/pat[-]down?
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6. Whether the PCRA court abused its discretion by finding no
fault in trial counsel’s ineffectiveness during the suppression
hearing of the unlawful traffic stop, that was a direct result of an
illegal traffic stop, search/pat[-]down and seizure of the unlawful
items?
7. Whether the PCRA court abused its discretion in upholding the
trial court’s illegal sentence of [Roundtree]?
8. Whether PCRA counsel … was ineffective for failing to appeal
trial counsel’s failure to suppress the illegal search and seizure,
arising from the unlawful traffic stop and search/pat[-]down?
9. Whether trial counsel failed to provide [Roundtree] with the
requested notes of testimony and discovery?
10. Whether PCRA counsel was ineffective for failing to provide
[Roundtree] the requested notes of testimony and discovery?
11. Whether the PCRA court abused its discretion by dismissing
the PCRA Petition without order[ing] notes of testimony and
discovery for the indigent [Roundtree]?
Brief for Appellant at 4-5 (issues renumbered).
Our standard of review of a PCRA court’s [dismissal] of a
petition for post[-]conviction relief is well-settled: We must
examine whether the record supports the PCRA court’s
determination, and whether the PCRA court’s determination is
free of legal error. The PCRA court’s findings will not be
disturbed unless there is no support for the findings in the
certified record.
Commonwealth v. Franklin, 990 A.2d 795, 797 (Pa. Super. 2010)
(citation omitted).
We will consider Roundtree’s first and second claims together. In both
claims, Roundtree contends that trial counsel was ineffective for advising
him to plead guilty. Brief for Appellant at 14-16. Roundtree argues that the
recovered evidence was the product of an illegal stop and search, and claims
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that he pled guilty based on trial counsel’s opinion that the evidence was
legally obtained. Id.
It is well-settled that counsel is presumed to have provided
effective representation unless the PCRA petitioner pleads and
proves all of the following: (1) the underlying legal claim is of
arguable merit; (2) counsel’s action or inaction lacked any
objectively reasonable basis designed to effectuate his client’s
interest; and (3) prejudice, to the effect that there was a
reasonable probability of a different outcome if not for counsel’s
error.
Franklin, 990 A.2d at 797 (citations omitted). “A claim of ineffectiveness
will be denied if the petitioner’s evidence fails to satisfy any one of these
prongs.” Commonwealth v. Roane, 142 A.3d 79, 88 (Pa. Super. 2016)
(citation omitted).
Ineffective assistance of counsel claims arising from the
plea-bargaining process are eligible for PCRA review. 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.
Commonwealth v. Kelley, 136 A.3d 1007, 1012-13 (Pa. Super. 2016)
(citations and quotation marks omitted); see also Commonwealth v.
Morrison, 878 A.2d 102, 105 (Pa. Super. 2005) (stating that “the defendant
must show that counsel’s deficient stewardship resulted in a manifest
injustice … by facilitating entry of an unknowing, involuntary, or unintelligent
plea.” (citations omitted)).
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As this Court has explained,
[o]ur law presumes that a defendant who enters a guilty plea
was aware of what he was doing. He bears the burden of
proving otherwise.
***
The longstanding rule of Pennsylvania law is that a defendant
may not challenge his guilty plea by asserting that he lied while
under oath, even if he avers that counsel induced the lies. A
person who elects to plead guilty is bound by the statements he
makes in open court while under oath and may not later assert
grounds for withdrawing the plea which contradict the
statements he made at his plea colloquy.
***
[A] defendant who elects to plead guilty has a duty to answer
questions truthfully. We [cannot] permit a defendant to
postpone the final disposition of his case by lying to the court
and later alleging that his lies were induced by the prompting of
counsel.
Commonwealth v. Pollard, 832 A.2d 517, 523-24 (Pa. Super. 2003)
(citations omitted).
Here, the trial court conducted an oral colloquy on the record during
the January 5, 2015 guilty plea and sentencing hearing, during which
Roundtree acknowledged that he completed a Written Guilty Plea Colloquy
form and reviewed the form with his attorney. See N.T., 1/5/15, at 4.
Additionally, the trial court advised Roundtree regarding his right to a jury
trial and the presumption of innocence, and informed him that the judge is
not bound by the terms of the plea agreement. See id. at 3. Roundtree
also acknowledged that he understood the nature of the charge to which he
was pleading guilty; he understood the maximum sentence he could receive
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for the charge; he agreed to the facts underlying the charge; and he
admitted to possessing heroin for the purpose of delivery. See id. at 9-11;
see also Commonwealth v. Reid, 117 A.3d 777, 783 (Pa. Super. 2015)
(stating that “a plea of guilty will not be deemed invalid if the circumstances
surrounding the entry of the plea disclose that the defendant had a full
understanding of the nature and consequences of his plea and that he
knowingly and voluntarily decided to enter the plea.” (citation omitted)).
Further, in pleading guilty, Roundtree acknowledged that he waived all
claims except for the jurisdiction of the court accepting his plea, the validity
of the plea, and the legality of his sentence. See N.T., 1/5/15, at 8. Based
upon the foregoing, we conclude that Roundtree entered into his negotiated
plea knowingly, intelligently, and voluntarily, and our review of the record
reveals no way in which Roundtree was misled or misinformed. See
Pollard, supra; see also id. at 524 (stating that “[t]he desire of an
accused to benefit from a plea bargain is a strong indicator of the
voluntariness of his plea.”). Accordingly, Roundtree is not entitled to relief
on these claims.
Similarly, in his third and fourth claims, Roundtree argues that his
PCRA counsel was ineffective for failing to challenge trial counsel’s
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effectiveness in advising Roundtree to enter a guilty plea. 1 Brief for
Appellant at 20-22. Because we have concluded that Roundtree’s challenges
to the effectiveness of trial counsel are without merit, Roundtree is not
entitled to relief on the basis that PCRA counsel was ineffective for failing to
raise such a claim. See Commonwealth v. Williams, 900 A.2d 906, 910
(Pa. Super. 2006) (stating that “[i]f trial counsel was not ineffective …, then
no subsequent counsel could be held ineffective for failing to raise that
claim.”); see also Commonwealth v. Rivera, 816 A.2d 282, 292 (Pa.
Super. 2003) (stating that “post-trial counsel will not be deemed ineffective
for failing to raise and preserve meritless challenges to the effectiveness of
trial counsel.” (citation and brackets omitted)).
We will consider Roundtree’s fifth, sixth, and seventh claims together.
In his fifth claim, Roundtree argues that trial counsel was ineffective for
failing “to suppress the illegal search and seizure.” Brief for Appellant at 12.
Roundtree claims that trial counsel failed to present an argument that the
traffic stop and subsequent search were unsupported by reasonable
suspicion. Id. at 12-14. In his sixth claim, Roundtree contends that “the
PCRA court abused its discretion by finding no fault in trial counsel’s
effectiveness during the suppression hearing ….” Id. at 24; see also id. at
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1 Roundtree preserved his challenge to PCRA counsel’s effectiveness for our
review because he raised the claim in response to the PCRA court’s Rule 907
Notice. See Commonwealth v. Ford, 44 A.3d 1190, 1198 (Pa. Super.
2012).
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24-26. In his seventh claim, Roundtree asserts that the PCRA court abused
its discretion in upholding his “illegal” sentence, because the evidence
supporting his conviction was the result of an illegal stop. Id. at 26-27.
Contrary to Roundtree’s assertions, trial counsel did, in fact, challenge
the legality of the traffic stop, detention, and subsequent search in a Motion
to Suppress physical evidence, which the trial court denied. Accordingly, we
cannot conclude that trial counsel was ineffective on this basis. See
Commonwealth v. Eichinger, 108 A.3d 821, 834 (Pa. 2014) (concluding
that trial counsel was not ineffective for failing to raise a claim that
appellant’s statements to the police were unlawfully obtained, where trial
counsel did, in fact, raise such a claim); see also Commonwealth v.
Busanet, 54 A.3d 35, 61 (Pa. 2012) (concluding that trial counsel could not
be deemed ineffective for failing to object to a specific line of questioning
where counsel did, in fact, object).2
____________________________________________
2 Moreover, to the extent that Roundtree attempts to pursue his underlying
claim that the recovered evidence should have been suppressed, we note
that Roundtree waived his suppression challenge by entering a guilty plea.
See Commonwealth v. Eisenberg, 98 A.3d 1268, 1275 (Pa. 2014)
(stating that “upon entry of a guilty plea, a defendant waives all claims and
defenses other than those sounding in the jurisdiction of the court, the
validity of the plea, and what has been termed the ‘legality’ of the sentence
imposed”); see also N.T., 1/5/15, at 8 (wherein, during his oral plea
colloquy, Roundtree acknowledged his understanding that in pleading guilty,
he waived all claims except for the jurisdiction of the court accepting his
plea, the validity of the plea, and the legality of his sentence).
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Similarly, in his eighth claim, Roundtree argues that PCRA counsel was
ineffective for failing to challenge trial counsel’s effectiveness in failing to
raise a suppression claim. Brief for Appellant at 18-19. Because we have
concluded that Roundtree’s challenges to the effectiveness of trial counsel
regarding the suppression claim are without merit, Roundtree is not entitled
to relief on the basis that PCRA counsel was ineffective for failing to raise
such claims. See Williams, supra; see also Rivera, supra.
In his ninth claim, Roundtree asserts that trial counsel was ineffective
for failing to obtain dashboard camera footage of the traffic stop in support
of his claim that the stop was illegal. Brief for Appellant at 17-18.
Contrary to Roundtree’s assertions, we note that the relevant
dashboard camera footage was available for the suppression court’s review
at the suppression hearing. See Trial Court Opinion, 11/26/14, at 3
(wherein the trial court noted that Trooper Gerken can be heard on the
dashboard camera); see also Turner/Finley Letter, 10/31/16, at 2
(wherein PCRA counsel indicated that he had reviewed, inter alia, “the DVD
containing the audio and video of the traffic stop that led eventually to the
petitioner’s arrest and charges”). Thus, we cannot conclude that trial
counsel was ineffective on this basis. See Eichinger, supra; see also
Busanet, supra.
In his tenth claim, Roundtree again argues that trial counsel “made no
attempts to seek discovery of the dash[board camera] footage in question,”
and asserts that PCRA counsel failed to raise this claim on his behalf. Brief
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for Appellant at 23-24. Because we have concluded that Roundtree’s
challenge to the effectiveness of trial counsel regarding discovery are
without merit, Roundtree is not entitled to relief on the basis that PCRA
counsel failed to raise such a claim. See Williams, supra; see also
Rivera, supra. Additionally, to the extent that Roundtree claims that PCRA
counsel did not review the dashboard camera footage, we note that, in his
Turner/Finley Letter, PCRA counsel specifically stated that he reviewed the
relevant footage. See Turner/Finley Letter, 10/31/16, at 2.
In his eleventh claim, Roundtree argues that the PCRA court abused its
discretion in dismissing his Petition without ordering the requested notes of
testimony and discovery.3 Brief for Appellant at 27-28. Roundtree avers
that these materials are necessary to establish his claims. Id. at 17, 23, 28.
Roundtree seeks dashboard camera footage obtained during the traffic stop,
which he believes will establish that the stop was illegal and that trial
counsel was therefore ineffective for failing to obtain such evidence. Id.
Regarding Roundtree’s requests for transcripts, we observe that both
of his pro se requests were filed more than a month after the PCRA court
had dismissed Roundtree’s Petition, and Roundtree had filed a Notice of
Appeal. Therefore, even if Roundtree had obtained the transcripts he
____________________________________________
3On March 1, 2017, Roundtree filed a pro se Motion for Notes of Testimony
and Discovery. Subsequently, on March 17, 2017, Roundtree filed a pro se
Request for Transcripts. The PCRA court denied both the Motion and the
Request in an Order dated March 29, 2017.
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sought, the PCRA court no longer had jurisdiction to consider new or
amended claims at that time. See generally Commonwealth v. Crider,
735 A.2d 730, 733 (Pa. Super. 1999) (stating that “a court is not required to
comply with a defendant’s request for transcripts in order to pursue relief in
a PCRA proceeding where no such action is pending.”).
Regarding Roundtree’s request for discovery of dashboard camera
footage, we observe that, pursuant to Pa.R.Crim.P. 902(E)(1), “no discovery
shall be permitted at any stage of [PCRA] proceedings, except upon leave of
court after a showing of exceptional circumstances.” Because the PCRA and
the criminal rules do not define the term “exceptional circumstances,” “it is
for the trial court, in its discretion, to determine whether a case is
exceptional and discovery is therefore warranted. We will not disturb a
court’s determination regarding the existence of exceptional circumstances
unless the court abused its discretion.” Commonwealth v. Frey, 41 A.3d
605, 611 (Pa. Super. 2012). Here, the trial court determined that Roundtree
failed to establish “exceptional circumstances” warranting discovery, see
Trial Court Order, 3/29/17, at 1 n.1, and we discern no abuse of discretion in
this determination. Based upon the foregoing, Roundtree is not entitled to
relief on these claims.4
____________________________________________
4 Moreover, we observe that Roundtree requested these materials in support
of his underlying suppression claim, which he waived by entering a guilty
plea. See Eisenberg, 98 A.3d at 1275.
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Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/18/18
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