Com. v. Diehl, B. ( 2016 )

J-S14037-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
BRENTON ALBERT DIEHL,
Appellant No. 1436 MDA 2015
Appeal from the Order July 24, 2015
In the Court of Common Pleas of Berks County
Criminal Division at No(s): CP-06-CR-0004728-2013
BEFORE: FORD ELLIOTT, P.J.E., PANELLA, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED FEBRUARY 17, 2016
This is an appeal from the order entered in the Court of Common Pleas
of Berks County dismissing Appellant’s first petition filed under the Post
Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. Appellant
contends the PCRA court erred in denying his petition without an evidentiary
hearing. We affirm.
The relevant facts and procedural history are as follows: On March 3,
2014, Appellant, who was represented by counsel, entered a negotiated
guilty plea to the charge of possession with the intent to deliver a controlled
substance (“PWID”) (marijuana) and the summary offense of purchase,
*Former Justice specially assigned to the Superior Court.
J-S14037-16
consumption, possession of liquor or malt or brewed beverages.1 At the
guilty plea colloquy, Appellant admitted that, on April 11, 2013, when he
was nineteen years old, the police stopped his vehicle and discovered therein
a malt or brewed beverage and marijuana, which Appellant possessed with
the intent to deliver. N.T. Guilty Plea, 3/3/14, at 5. In accordance with the
negotiated plea agreement, the trial court sentenced Appellant to three
years of probation for PWID and a $100.00 fine for the summary offense of
possession of a malt or brewed beverage. Thereafter, as a consequence of
his guilty plea, the Pennsylvania Department of Transportation suspended
Appellant’s driver’s license.
Despite being provided with notice of his post-sentence and appellate
rights, Appellant filed neither post-sentence motions nor a direct appeal.
However, on February 26, 2015, Appellant filed a timely counseled PCRA
petition averring the ineffective assistance of guilty plea counsel resulting in
the entry of an involuntary guilty plea. Appellant specifically averred guilty
plea counsel was ineffective (1) in failing to discuss the possibility of filing a
pretrial motion; (2) in failing to file pretrial motions; (3) in failing to
communicate adequately with Appellant for purposes of discussing the
____________________________________________
1
35 P.S. § 780-113(a)(3) and 18 Pa.C.S.A. § 6308(a), respectively. In
exchange for Appellant’s guilty plea, the Commonwealth withdrew charges of
possession of a controlled substance, 35 P.S. § 780-113(a)(31), possession
of drug paraphernalia, 35 P.S. § 780-113(a)(32), and exhaust systems,
mufflers, or noise controls, 75 Pa.C.S.A. § 4523(d).
-2-
J-S14037-16
process of the case and the full range of options available to Appellant,
including but not limited to his right to testify and argue “personal use” of
the marijuana as opposed to “intent to deliver;” and (4) in failing to advise
Appellant that his driver’s license would be suspended as a result of his
entry of a guilty plea. Appellant contended that, due to this alleged
ineffectiveness, he did not understand his options at the time of the guilty
plea colloquy and, as a result thereof, he entered an involuntary guilty plea
without the benefit of adequate consultation and advice.
On May 29, 2015, the PCRA court provided Appellant with notice of its
intent to dismiss the petition without a hearing pursuant to Pennsylvania
Rule of Criminal Procedure 907. Appellant filed a counseled response to the
court’s Pa.R.Crim.P. 907 notice. Specifically, Appellant alleged that guilty
plea counsel met with him on February 14, 2014, and advised him that a
plea offer might be made by the Commonwealth. Thereafter, on March 3,
2014, Appellant “briefly” met with guilty plea counsel, who advised Appellant
that the Commonwealth, in fact, made an offer of three years probation and
a $100.00 fine in exchange for Appellant pleading guilty to the two offenses
indicated supra. Appellant’s Response filed 6/23/15 at 3. Appellant averred
guilty plea counsel indicated there was “not much else he could do,” that if
Appellant went to trial it would be “his word against that of Officer Borz[,]”
and, if convicted, Appellant would face the likelihood of serving jail time. Id.
at 4. However, Appellant emphasized that “[a]t no time either prior to or
-3-
J-S14037-16
during this short conversation did [guilty plea counsel] ever discuss the filing
of pretrial motions or whether there was any legal basis for doing so with
[Appellant].” Id. (underline omitted).
Moreover, Appellant emphasized that “[a]lthough [he] was advised
that his license would be suspended, he was not made aware of that until
just immediately prior to the entry of the plea, with no time given for him to
consider the consequences thereof.” Id. at 4-5. Also, Appellant averred he
was not advised of the length of the suspension. Appellant argued that
guilty plea counsel’s lack of communication, including failing to discuss the
possibility of filing pretrial motions, discussing the full range of options
available to Appellant if he proceeded to trial (including his right to testify
and argue the marijuana was possessed for personal use), failing to advise
him timely that his driver’s license would be suspended, and failing to advise
him of the length of the suspension, caused Appellant to enter an
involuntary guilty plea.
By order entered on July 24, 2015, the PCRA court dismissed
Appellant’s PCRA petition without a hearing, and Appellant filed a timely
notice of appeal. All Pa.R.A.P. 1925 requirements have been met.
Appellant presents the sole issue for this Court’s review:
[Did] [t]he trial court err[ ] in dismissing the Appellant’s First
Petition for Relief under the Post Conviction Relief Act without
first holding an evidentiary hearing and making findings of fact
and conclusions of law based upon the evidence adduced and a
determination of the credibility of each witness to be
presented[?]
-4-
J-S14037-16
Appellant’s Brief at 9.
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 from 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.“[T]he right to an evidentiary hearing on a post-conviction petition is
not absolute. It is within the PCRA court's discretion to decline to hold a
hearing if the petitioner's claim is patently frivolous and has no support
either in the record or other evidence.” Commonwealth v. Walls, 993
A.2d 289, 295 (Pa.Super. 2010) (citations omitted). In other words, a judge
may dismiss a PCRA petition without a hearing if the petition is patently
frivolous and without support in the record, or if the facts alleged therein
would not, even if proven, entitle the defendant to relief. Pa.R.Crim.P. 907;
Walls, supra.
It is the responsibility of the reviewing court on appeal to
examine each issue raised in the PCRA petition in light of the
record certified before it in order to determine if the PCRA court
erred in its determination that there were no genuine issues of
material fact in controversy and in denying relief without
conducting an evidentiary hearing.
Walls, 993 A.2d at 295 (citation and quotations omitted).
-5-
J-S14037-16
In the case sub judice, Appellant’s PCRA claims allege the ineffective
assistance of guilty plea counsel.
To prevail on a claim alleging counsel's ineffectiveness
under the PCRA, Appellant must demonstrate (1) that the
underlying claim is of arguable merit; (2) that counsel's course
of conduct was without a reasonable basis designed to effectuate
his client's interest; and (3) that he was prejudiced by counsel's
ineffectiveness, i.e. there is a reasonable probability that but for
the act or omission in question the outcome of the proceedings
would have been different.
It is clear that a criminal defendant's right to effective
counsel extends to the plea process, as well as during trial.
However, [a]llegations 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.
[T]he law does not require that [the defendant] be pleased
with the outcome of his decision to enter a plea of guilty: All that
is required is that [his] decision to plead guilty be knowingly,
voluntarily, and intelligently made.
Commonwealth v. Willis, 68 A.3d 997, 1001-02 (Pa.Super. 2013)
(quoting Commonwealth v. Wah, 42 A.3d 335, 338 (Pa.Super. 2012))
(internal quotation and quotation marks omitted).
In explaining the reasons it dismissed Appellant’s PCRA petition
without holding an evidentiary hearing, the PCRA court indicated, in relevant
part, the following:
All of the claims raised by [Appellant] involve allegations
concerning the effectiveness of plea counsel, and whether
counsel’s alleged ineffectiveness caused [Appellant] to enter an
unknowing, unintelligent, involuntary plea.
***
-6-
J-S14037-16
To be valid, a guilty plea must be knowingly, voluntarily,
and intelligently entered. A court accepting [an appellant’s]
guilty plea is required to conduct an on-the-record inquiry during
the plea colloquy. The colloquy must inquire into the following
areas:
(1) Does the defendant understand the nature of
the charges to which he is pleading guilty?
(2) Is there a factual basis for the plea?
(3) Does the defendant understand that he has a
right to trial by jury?
(4) Does the defendant understand that he is
presumed innocent until he is found guilty?
(5) Is the defendant aware of the permissible
range of sentences and/or fines for the
offenses charged?
(6) Is the defendant aware that the judge is not
bound by the terms of any plea agreement
tendered unless the judge accepts such
agreement?
Moreover, Pennsylvania law presumes that [an appellant] who
enters a guilty plea was aware of what he was doing. The
[appellant] bears the burden of proving otherwise.
***
Here, the record reflects that [Appellant] was advised of
the nature of the charges to which he was pleading guilty, the
factual basis for the plea, and his right to a jury trial.
[Appellant] was also informed of the presumption of innocence
and the maximum permissible penalties.[2] The record further
reflects that [Appellant] stated that he was satisfied with the
services of his attorney. In addition, [Appellant] signed a
Statement Accompanying Defendant’s Request to Enter a Guilty
Plea, which was incorporated into the record. That document
establishes that [Appellant] was advised that as a result of this
conviction, his driver’s license would be suspended for six
months.
PCRA Court Order and Opinion, filed 5/28/2015, at 4-5 (quotation marks,
quotations, and citations omitted) (footnote added).
____________________________________________
2
During the guilty plea colloquy, Appellant was also informed that the trial
judge need not accept the plea agreement. N.T. Guilty Plea, 3/3/14, at 4.
-7-
J-S14037-16
Moreover, during the guilty plea colloquy, in reference to the signed
Statement Accompanying Defendant’s Request to Enter a Guilty Plea, which
contained notice that Appellant’s driver’s license would be suspended for six
months, the assistant district attorney asked Appellant whether, in light of
his answers contained therein, it was still his intent to plead guilty and be
sentenced in accordance with the plea agreement. N.T. Guilty Plea, 3/3/14,
at 5. Appellant answered affirmatively. Id.Additionally, as it relates to Appellant’s claim that counsel failed to
advise him as to the filing of potential pretrial motions, as well as his various
rights at trial, the record shows that Appellant was aware of these rights and
made a knowing and voluntary waiver thereof. Specifically, during the guilty
plea hearing, the following relevant exchange occurred between Appellant
and the assistant district attorney:
[Assistant District Attorney]: Do you understand that you
have the right to file various pretrial motions including a writ of
habeas corpus and a motion to suppress evidence?
[Appellant]: Yes.
[Assistant District Attorney]: Do you understand that if you
plead guilty, you give up your pretrial and trial rights?
[Appellant]: Yes.
N.T. Guilty Plea, 3/3/14, at 3 (bold added).3
____________________________________________
3
Moreover, the signed Statement Accompanying Defendant’s Request to
Enter a Guilty Plea contained the following sentence: “I understand that by
pleading guilty I am giving up my right to file pre-trial motions, including but
not limited to a motion for a writ of habeas corpus to dismiss the charges,
and a motion for suppression of evidence.” The document additionally listed
(Footnote Continued Next Page)
-8-
J-S14037-16
As the PCRA court noted in its opinion, “[t]he longstanding rule of
Pennsylvania law is that a[n appellant] may not challenge a guilty plea by
claiming that he lied under oath, even if he asserts that counsel induced the
lies.” PCRA Court Order and Opinion, filed 5/28/2015, at 6 (citing
Commonwealth v. Pollard, 832 A.2d 517, 523 (Pa.Super. 2003)). Here,
the oral colloquy and signed written document demonstrate that Appellant
understood what the plea connoted and its consequences, and Appellant has
not established the plea was involuntary. Appellant is bound by the
statements he made during his guilty plea proceedings, and he may not now
assert grounds for withdrawing the plea which contradict the statements.
Willis, 68 A.3d at 1009.
For all of the foregoing reasons, based on the certified record, we
conclude the PCRA court did not err in determining Appellant’s
ineffectiveness claims were meritless and there were no genuine issues of
material fact in controversy. Thus, the PCRA court did not abuse its
discretion in dismissing Appellant’s PCRA petition without conducting an
evidentiary hearing. Commonwealth v. Clemmons, 505 Pa. 356, 479
A.2d 955, 957 (1984) (“Where it is clear that allegations of ineffectiveness of
counsel are baseless or meritless[,] then an evidentiary hearing is
_______________________
(Footnote Continued)
various trial rights, which Appellant acknowledged he was “giving up” by
pleading guilty.
-9-
J-S14037-16
unnecessary and the unfounded allegations should be rejected and
dismissed.”).
Affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/17/2016
- 10 -