Com. v. Gibson, D. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
DERRICK W. GIBSON
Appellant No. 1152 WDA 2014
Appeal from the PCRA Order June 19, 2014
In the Court of Common Pleas of Erie County
Criminal Division at No(s): CP-25-CR-0001901-2012
BEFORE: BENDER, P.J.E., MUNDY, J., and STABILE, J.
MEMORANDUM BY MUNDY, J.: FILED APRIL 28, 2015
Appellant, Derrick W. Gibson, appeals from the June 19, 2014 order
denying his first petition for relief filed pursuant to the Post Conviction Relief
Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. After careful review, we affirm.
The certified record discloses the relevant facts and procedural history
of this case as follows. On February 20, 2012, Appellant went to his ex-
girlfriend’s house wherein he took his ex-girlfriend, the victim, into her
bedroom, locked the door, pointed a loaded gun at her, and instructed her to
undress so he could have sex with her and then kill her. N.T., 10/31/12, at
10-12. When the victim indicated she would comply, Appellant placed the
gun on the bed, and a struggle for control of the gun ensued. Eventually,
the victim’s brother kicked in the bedroom door, overpowered Appellant, and
secured the gun. The next day, an arrest warrant was issued, and Appellant
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was arrested on February 23, 2012. On August 1, 2012, the Commonwealth
filed an information charging Appellant with one count each of attempted
rape by threat of forcible compulsion, attempted homicide, persons not to
possess firearms, receiving stolen property, unlawful restraint, terroristic
threats, possession of an instrument of crime, recklessly endangering
another person, and simple assault.1 On October 31, 2012, Appellant
entered into an open guilty plea for attempted rape by forcible compulsion,
persons not to possess firearms, and unlawful restraint. Pursuant to the
plea agreement, the remaining charges were nolle prossed. Sentencing was
postponed to allow the completion of a pre-sentence investigation report and
a Megan’s Law assessment. On February 25, 2013, the trial court imposed
an aggregate judgment of sentence of 10½ to 21 years’ imprisonment. 2 On
March 7, 2013, Appellant filed a timely motion for modification of sentence,
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1
18 Pa.C.S.A. §§ 901(a) (to commit 3121(a)), 901(a) (to commit 2501(a)),
6105(a)(1), 3925(a), 2902(a)(2), 2706(a)(1), 907(a), 2705, and
2701(a)(3), respectively.
2
Specifically, the trial court sentenced Appellant to a term of imprisonment
of six and one-half to 13 years for attempted rape by threat of forcible
compulsion. On the conviction for persons not to possess firearms, the trial
court sentenced Appellant to a term of imprisonment of four to eight years
to run consecutive to the sentence for attempted rape. On the conviction for
unlawful restraint, the trial court sentenced Appellant to a term of
imprisonment of one to three years to run concurrent to the sentence for
persons not to possess firearms.
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which was denied by operation of law on July 5, 2013. Appellant did not file
a direct appeal with this Court.
On February 10, 2014, Appellant filed a timely pro se PCRA petition,
and the PCRA court appointed counsel. On April 28, 2014, PCRA counsel
filed a supplemental PCRA petition. On May 14, 2014, the PCRA court
entered an opinion and notice of its intent to dismiss Appellant’s PCRA
petition without a hearing pursuant to Pennsylvania Rule of Criminal
Procedure 907(1). Appellant did not file a response. The PCRA court
entered a final order denying Appellant’s PCRA petition without a hearing on
June 19, 2014. On July 15, 2014, Appellant filed a timely notice of appeal.3
On appeal, Appellant raises the following issue for our review.
[Whether] the PCRA [c]ourt erred in denying
[Appellant]’s PCRA petition where he argued that he
wished to withdraw his [guilty] plea but that his
attorney failed to motion the court to do so[?]
Appellant’s Brief at 1.
The following principles guide our review of an appeal from the denial
of PCRA relief.
On appeal from the denial of PCRA relief, our
standard and scope of review is limited to
determining whether the PCRA court’s findings are
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3
The PCRA court did not order Appellant to file a Rule 1925(b) statement,
and the PCRA court filed a Rule 1925(a) memorandum opinion directing this
Court to its May 15, 2014 opinion, which discusses its reasons for denying
PCRA relief to Appellant.
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supported by the record and without legal error.
[Our] scope of 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
PCRA court level. The PCRA court’s credibility
determinations, when supported by the record, are
binding on this Court. However, this Court applies a
de novo standard of review to the PCRA court’s legal
conclusions.
Commonwealth v. Medina, 92 A.3d 1210, 1214-1215 (Pa. Super. 2014)
(en banc) (internal quotation marks and citations omitted), appeal granted,
105 A.3d 658 (Pa. 2014). Further, in order to be eligible for PCRA relief, a
petitioner must plead and prove by a preponderance of the evidence that his
conviction or sentence arose from one or more of the errors listed at
Section 9543(a)(2) of the PCRA. 42 Pa.C.S.A. § 9543(a)(2). These errors
include ineffectiveness of counsel. Id. § 9543(a)(2)(ii). The issues raised in
a PCRA petition must be neither previously litigated nor waived. Id.
§ 9543(a)(3).
Our standard of review for the dismissal of a PCRA petition without
conducting a hearing is as follows.
[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. 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.
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Commonwealth v. Wah, 42 A.3d 335, 338 (Pa. Super. 2012) (internal
citations omitted), quoting Commonwealth v. Turetsky, 925 A.2d 876,
882 (Pa. Super. 2007), appeal denied, 940 A.2d 365 (Pa. 2007); see also
Pa.R.Crim.P. 907. “The controlling factor … is the status of the substantive
assertions in the petition. Thus, as to ineffectiveness claims in particular, if
the record reflects that the underlying issue is of no arguable merit or no
prejudice resulted, no evidentiary hearing is required.” Commonwealth v.
Baumhammers, 92 A.3d 708, 726-727 (Pa. 2014) (citations omitted).
We review a PCRA court’s decision to dismiss without a hearing for an abuse
of discretion. Wah, supra.In his PCRA petition, Appellant alleges ineffective assistance of trial
counsel. When reviewing a claim of ineffectiveness, we apply the following
test, first articulated by our Supreme Court in Commonwealth v. Pierce,
527 A.2d 973 (Pa. 1987).
[C]ourts presume that counsel was effective, and
place upon the appellant the burden of proving
otherwise. Counsel cannot be found ineffective for
failure to assert a baseless claim.
To succeed on a claim that counsel was
ineffective, Appellant must demonstrate that: (1) the
claim is of arguable merit; (2) counsel had no
reasonable strategic basis for his or her action or
inaction; and (3) counsel’s ineffectiveness prejudiced
him.
…
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[T]o demonstrate prejudice, appellant must
show there is a reasonable probability that, but for
counsel’s error, the outcome of the proceeding would
have been different.
Commonwealth v. Michaud, 70 A.3d 862, 867 (Pa. Super. 2013) (internal
quotation marks and citations omitted). “Failure to establish any prong of
the test will defeat an ineffectiveness claim.” Commonwealth v.
Birdsong, 24 A.3d 319, 329 (Pa. 2011).
Appellant’s specific claim is that his trial counsel was ineffective for
failing to file a motion to withdraw Appellant’s guilty plea.4 Appellant’s Brief
at 4. Appellant indicates that he asked his trial counsel to file said motion,
but does not specify how he made the request or whether he made it before
or after sentencing. Id.; see also Appellant’s Supplemental Motion for Post
Conviction Collateral Relief, 4/28/14, at 1-2 (unnumbered). He contends
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4
Appellant comes perilously close to waiving his issue on appeal because his
brief does not cite legal authorities or conduct any meaningful analysis of his
issue. See Pa.R.A.P. 2119(a)-(b) (requiring an appellant to cite and discuss
relevant legal authority); Commonwealth v. Reyes-Rodriguez, --- A.3d --
-, 2015 WL 1068995, at *3 (Pa. Super. 2015) (finding ineffective assistance
of counsel claim raised in PCRA petition waived because appellant “failed to
develop his argument or cite authority”). Although Appellant sets forth the
Pierce standard for ineffectiveness claims, his three sentences of legal
analysis do not apply the Pierce test to this case. Appellant’s Brief at 3-4;
see also Commonwealth v. Fears, 86 A.3d 795, 804 (Pa. 2014)
(concluding that the “failure to meaningfully discuss each of the three
ineffectiveness prongs” renders claim “waived for lack of development[]”).
Nevertheless, we decline to deem this issue waived, and we will review it
because we can discern Appellant’s general argument. Cf. Green v. Green,
69 A.3d 282, 286 n.2 (Pa. Super. 2013) (observing if an appellant’s
nonconformance Rule 2119 does not hinder review of the issues or prejudice
the parties, this Court will address the merits of the appeal).
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such a motion would have been meritorious because his plea was not
voluntary, based on Appellant’s uncertainty “at the time he entered his plea
whether he wished to do so or not.” Appellant’s Brief at 4.
We note that “a defendant has no absolute right to withdraw a guilty
plea; rather, the decision to grant such a motion lies within the sound
discretion of the trial court.” Commonwealth v. Muhammad, 794 A.2d
378, 382 (Pa. Super. 2002). The standard for deciding whether to grant a
motion to withdraw a guilty plea varies based on when said motion is filed.
Our Supreme Court has concluded that a request to withdraw a guilty plea
made before sentencing should be “liberally allowed,” and outlined the
following two-part test for a pre-sentence motion “(1) the defendant has
provided a ‘fair and just reason’ for withdrawal of his plea; and (2) the
Commonwealth will not be ‘substantially prejudiced in bringing the case to
trial.’” Id. at 383, quoting Commonwealth v. Forbes, 299 A.2d 268, 271
(Pa. 1973). On the other hand, the standard for a post-sentence motion to
withdraw a guilty plea is much higher. To obtain such relief, a defendant
must make a “showing of prejudice on the order of manifest injustice.”
Commonwealth v. Warren, 84 A.3d 1092, 1096 (Pa. Super 2014). “A
plea rises to the level of manifest injustice when it was entered into
involuntarily, unknowingly, or unintelligently.” Commonwealth v. Lincoln,
72 A.3d 606, 610 (Pa. Super. 2013), appeal denied, 87 A.3d 319 (Pa. 2014).
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We conclude Appellant’s claim of trial counsel’s ineffectiveness fails, as
Appellant has not demonstrated that his underlying claim was of arguable
merit. Appellant failed to specify whether he instructed his trial counsel to
file a motion to withdraw his guilty plea before or after sentencing. Without
specifying when he made this directive, we cannot determine his likelihood
of success. In his brief, Appellant did not apply either the pre- or the post-
sentence standard for guilty plea withdrawal to argue that the trial court
would have granted the motion. Accordingly, Appellant was not entitled to a
hearing on his PCRA petition because his claim was patently frivolous and
had no support in the record. See Wah, supra.Further, Appellant’s substantive claim is that he should have been
permitted to withdraw his guilty plea because he did not enter into the guilty
plea knowingly and voluntarily because he was “clearly not sure” he wanted
to enter a guilty plea. Appellant’s Brief at 4. The record belies Appellant’s
assertions. The guilty plea transcript reveals that Appellant pled guilty to
the counts of attempted rape and persons not to possess firearms, but he
hesitated and answered that he was not pleading guilty to unlawful restraint.
The trial court informed Appellant that he did not have to enter a guilty plea
and then confirmed Appellant’s intention to plead guilty to unlawful restraint
as follows.
THE [TRIAL] COURT: [W]hat they’re saying
here what you did is that in the course of the
attempted rape and with the use -- that you held her
so that she could not leave, against her will. That
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basically is what unlawful restraint is. So do you
admit that that’s what you did and plead guilty or
plead not guilty?
[APPELLANT]: Plead guilty.
N.T., 10/31/12, at 12. Appellant also executed a written guilty plea
colloquy, which demonstrated that he intended to plead guilty to all three
charges in exchange for the Commonwealth’s agreement to nolle prosse all
of the remaining charges. Appellant’s Statement of Understanding of Rights
Prior to Guilty Plea, 10/31/12. Accordingly, the record establishes that
Appellant entered into the guilty plea knowingly, voluntarily, and
intelligently. Therefore, Appellant has not demonstrated his claim was of
arguable merit, and counsel was not ineffective for failing to raise a
meritless claim. See Michaud, supra. As Appellant has failed to establish
one prong of the Pierce test for ineffectiveness, his claim fails. See
Birdsong, supra.
Based on the foregoing, we conclude that the PCRA court properly
denied Appellant’s supplemental petition without an evidentiary hearing as
the record reflects Appellant’s ineffectiveness claim is of no arguable merit.
See Medina, supra; Baumhammers, supra. Accordingly, the PCRA
court’s June 19, 2014 order is affirmed.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/28/2015
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