Com. v. Coles, M. ( 2016 )


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  • J-S64040-16
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
    PENNSYLVANIA
    Appellee
    v.
    MIKAEL COLES
    Appellant                   No. 3809 EDA 2015
    Appeal from the PCRA Order December 7, 2015
    In the Court of Common Pleas of Lehigh County
    Criminal Division at No(s): CP-39-CR-0003759-2012
    BEFORE: STABILE, J., SOLANO, J., and STEVENS, P.J.E.*
    MEMORANDUM BY STEVENS, P.J.E.:                FILED SEPTEMBER 28, 2016
    Mikael Coles (“Appellant”) appeals from the order entered in the Court
    of Common Pleas of Lehigh County denying his first petition for collateral
    relief under the Post Conviction Relief Act (“PCRA”), 42 Pa.S.A. § 9541 et
    seq. after an evidentiary hearing. As we discern no abuse of discretion with
    the PCRA court’s rejection of Appellant’s ineffective assistance of plea
    counsel claim, we affirm.
    The trial court aptly summarizes the case history as follows:
    On May 6, 2013, the appellant, Mikael Coles, Jr., enterd guilty
    pleas to Aggravated Assault, Robbery, Burglary, and Criminal
    Conspiracy. The appellant, with three (3) others, participated in
    the home invasion of the Herod residence. The family members
    were rounded-up and placed in an upstairs bathroom. One of
    the victims, Jermaine Herod, was assaulted and then shot
    multiple times.
    *Former Justice specially assigned to the Superior Court.
    J-S64040-16
    The terms of the plea agreement required the Robbery,
    Burglary, and Conspiracy to be imposed concurrently. [] The
    aggravated assault charge could be imposed either concurrently
    or consecutively.[]
    On August 14, 2013, after receipt and review of a presentence
    report, the appellant received a total sentence of not less than
    thirteen years nor more than twenty-six years in a state
    correctional institution. This sentence conformed to the plea
    agreement in that all the sentences were imposed consecutively.
    Each of the sentences were within the standard range of the
    Sentencing Guidelines, albeit the high end of the standard range.
    A "Motion For Reconsideration of Sentence" was filed on August
    21, 2013. The appellant in that motion conceded that the
    sentence was within the standard range of the Guidelines, but
    suggested that this Court failed to consider certain mitigating
    factors. On September 19, 2013, the motion was denied. A
    Notice of Appeal was filed, in which the appellant challenged the
    discretionary aspects of his sentence. On April 30, 2015, the
    judgment of sentence was affirmed. []
    On June 30, 2015, the appellant filed a "Petition For Post
    Conviction Relief." Counsel was appointed to represent the
    appellant and filed an "Amended PCRA Petition" on October 29,
    2015. It was alleged that the guilty plea was not "knowing,
    voluntary, or intelligent." [] A hearing on the petition was held
    on December 7, 2015, and at the completion of the hearing, the
    petition was denied. A Notice of Appeal was filed on December
    21, 2015. Pursuant to Pa.R.P. 1925(b), the appellant filed a
    "Concise Statement of Matters Complained of On Appeal" on
    January 7, 2016, raising the . . . claim [asserting that counsel
    was ineffective because his explanation of the plea agreement
    led appellant to believe his minimum term of incarceration would
    not be more than five years].
    Background
    The appellant and his masked confederates entered the Herod
    home through a basement window. They located six members
    of the family and herded them into an upstairs bathroom. A
    seventh family member hid in a closet [].
    -2-
    J-S64040-16
    Prior to forcing Jermaine Herod, one of the family members, into
    the bathroom, they asked him for the location of his safe. In
    doing so, Jermaine Herod was kicked in the head. He was then
    placed in the bathroom, and the Commonwealth alleges that the
    appellant fired six shots through the door striking Jermaine
    Herod multiple times. [] The appellant denied that he fired the
    weapon. However, a co-defendant implicated him at that act. []
    The victim also believed the appellant was responsible for both
    striking and shooting him. This Court in imposing sentence,
    drew no conclusions regarding the shooter.
    Jermaine Herod's injuries necessitated his hospitalization for
    approximately one month. Bullets were still inside his body at
    the time of sentencing, and he was still experiencing pain and
    discomfort from his wounds. [] A victim impact statement was
    read by the Chief Deputy District Attorney at sentencing. []
    The motive behind the home invasion was a failed concert
    promotion. []      Specifically, Jermaine Herod introduced the
    appellant to a concert promoter, who was supposed to provide
    musicians. [ ] The appellant allegedly provided the promoter
    with a deposit of $6,000, but the musicians failed to appear.
    The appellant, according to Jermaine Herod, was the only
    invader known to him. During the invasion, Jermaine Herod's
    tuition money, approximately $2,100, was stolen with his wallet.
    The appellant indicated that he received $200 from the wallet,
    and the wallet indicated that the appellant discarded a firearm in
    a river. [ ]
    Trial Court Opinion, filed Dec. 7, 2015, at 1-4.
    Appellant presents one question for our review:
    DID THE TRIAL COURT ERR IN FINDING THAT TRIAL
    COUNSEL PROVIDED EFFECTIVE ASSISTANCE FOR THE
    FOLLOWING     REASONS:   TRIAL    COUNSEL    WAS
    INEFFECTIVE FOR EXPLAINING TO PETITIONER THAT THE
    COMMONWEALTH WOULD NOT PURSUE THE FIVE YEAR
    MANDATORY IN SUCH A MANNER AS TO MAKE THE
    PETITIONER BELIEVE HE WOULD RECEIVE A MINIMUM
    SENTENCE OF NO MORE THAN FIVE YEARS AT MOST. THIS
    RESULTED IN AN UNKNOWING AND INVOLUNTARY PLEA.
    -3-
    J-S64040-16
    Appellant’s brief at 4.
    An appellant's claim for ineffective assistance of plea counsel is
    cognizable under the PCRA pursuant to 42 Pa.C.S. § 9543(a)(2)(ii).          Our
    standard of review applicable to such over such a claim is well-settled:
    Our standard of review of a trial 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. The PCRA court's findings will
    not be disturbed unless there is no support for the findings in the
    certified record.
    Pennsylvania has recast the two-factor inquiry regarding the
    effectiveness of counsel set forth by the United States Supreme
    Court in Strickland v. Washington, 
    466 U.S. 668
    , 
    104 S.Ct. 2052
    , 
    80 L.Ed.2d 674
     (1984), as the following three-factor
    inquiry:
    [I]n order to obtain relief based on [an ineffective
    assistance of counsel] claim, a petitioner must
    establish: (1) the underlying claim has arguable
    merit; (2) no reasonable basis existed for counsel's
    actions or failure to act; and (3) petitioner suffered
    prejudice as a result of counsel's error such that
    there is a reasonable probability that the result of
    the proceeding would have been different absent
    such error.
    Trial counsel is presumed to be effective, and Appellant bears
    the burden of pleading and proving each of the three factors by
    a preponderance of the evidence.             The right to the
    constitutionally effective assistance of counsel extends to
    counsel's role in guiding his client with regard to the
    consequences of entering into a guilty plea.
    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,
    -4-
    J-S64040-16
    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
    would not have pleaded guilty and would have insisted on going
    to trial. The reasonable probability test is not a stringent one; it
    merely refers to a probability sufficient to undermine confidence
    in the outcome.
    (citations, quotation marks, and footnote omitted).
    Commonwealth       v.   Lippert,   
    85 A.3d 1095
    ,   1100   (2014)   (quoting
    Commonwealth v. Barndt, 
    74 A.3d 185
    , 191–92 (Pa.Super.2013)).
    Appellant's claim, entirely credibility-based, asserts he entered an
    unknowing and involuntary guilty plea because plea counsel misinformed
    him that he would receive no more than a ten-year minimum sentence if he
    pled. At the PCRA hearing, Appellant pointed to a letter from the prosecutor
    to plea counsel outlining the District Attorney agreement, as part of the
    negotiated plea, not to seek four applicable five-year mandatory minimum
    sentences that would, if applied guarantee at least a 20 year minimum
    sentence if aggregated. The letter, however, said nothing about agreeing to
    minimum sentence of less than ten years.
    Moreover, the record of Appellant's guilty plea colloquy further belies
    his claim, as Appellant conveyed his understanding before the court that he
    faced a potential minimum sentence of twenty years and a maximum
    sentence of forty years. In so doing, furthermore, Appellant never indicated
    that despite this potential, he had gained assurance from either plea counsel
    -5-
    J-S64040-16
    or his own reading of the prosecutor's letter that he would, in fact, be
    subject to no more than a ten year minimum sentence.
    Finding Appellant's assertion to be incongruent with the sentencing
    instructions he received during his open guilty plea colloquy, the court
    deemed incredible his testimony that he entered an unknowing plea of
    guilty.   Because the court's credibility determinations are substantiated by
    the evidence, we are bound by them and may not reverse on this basis.
    See Lippert, 
    supra;
     Commonwealth v. Abu–Jamal, 
    720 A.2d 79
    , 93 (Pa.
    1998).    Confronted with no other argument besides Appellant's unavailing
    request that this Court reassess the PCRA court's evidence-based credibility
    determination, we reject the present appeal as meritless.
    Order is Affirmed.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 9/28/2016
    -6-
    

Document Info

Docket Number: 3809 EDA 2015

Filed Date: 9/28/2016

Precedential Status: Precedential

Modified Date: 9/29/2016