Com. v. Blair, Z. ( 2018 )

J-S58028-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ZACHARY BLAIR :
:
Appellant : No. 491 WDA 2018
Appeal from the PCRA Order April 2, 2018
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0015391-2013
BEFORE: OLSON, J., MURRAY, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY MURRAY, J.: FILED OCTOBER 16, 2018
Zachary Blair (Appellant) appeals from the order denying his petition
seeking relief under the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§
9541-9546. We affirm.
The PCRA court summarized the relevant factual and procedural history
of this case as follows:
On June 23, 2016, [Appellant] appeared before [the trial court] to
plead guilty pursuant to a negotiated plea agreement. [Appellant]
was originally charged in three separate cases and the negotiated
plea agreement resolved all three cases. Only two of the cases
are germane to this appeal. In one case, [Appellant] was charged
with criminal homicide. The Commonwealth was seeking a
conviction for first-degree murder and a sentence of death.
However, because [Appellant] had previously been convicted of
homicide, a conviction of third degree murder would have carried
a mandatory life sentence. The second case charged firearm
possession which was part of the events giving rise to the
homicide charge. The firearm charge was originally included in
the same information as the criminal homicide charge but was
later severed by [the trial court]. Under the terms of the plea
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agreement, [Appellant] agreed to plead guilty to one count of
conspiracy to commit third degree murder and the firearm
offense. The Commonwealth and [Appellant] both agreed that the
appropriate disposition of this case was a state prison sentence of
not less than 15 years nor more than 30 years relative to the
conspiracy charge. No further penalty was imposed at the
firearms count.
PCRA Opinion, 7/5/18, at 1-2.
Appellant did not file post-sentence motions or a direct appeal. On May
23, 2017, Appellant filed a pro se PCRA petition. Counsel was appointed and
filed an amended PCRA petition on September 15, 2017. On September 20,
2017, the PCRA court ordered the Commonwealth to file a written response
to Appellant’s amended PCRA petition. The Commonwealth filed its answer
on November 13, 2017. The PCRA court held a hearing on Appellant’s PCRA
petition on April 2, 2018 and denied Appellant’s petition that same day. On
April 6, 2018, Appellant filed this appeal. Both Appellant and the PCRA court
have complied with Pennsylvania Rule of Appellate Procedure 1925.
Appellant presents a single issue for our review:
1. DID THE TRIAL COURT ERR IN DENYING APPELLANT’S PCRA
PETITION SINCE TRIAL COUNSEL THOMAS FARRELL AND
PENALTY PHASE COUNSEL MICHAEL MACHEN WERE
INEFFECTIVE FOR CAUSING APPELLANT TO ENTER INTO AN
INVOLUNTARY, UNKNOWING AND UNINTELLIGENTLY
ENTERED GUILTY PLEA SINCE APPELLANT NEVER WANTED TO
PLEAD AND WANTED TO PROCEED TO TRIAL, BUT MR.
FARRELL TOLD APPELLANT THAT HE WASN’T ABLE TO
SUCCESSFULLY TRY THE CASE AND PROCEED TO TRIAL
BEFORE A JURY (AND THEREFORE APPELLANT WAS BETTER
OFF PLEADING GUILTY) SINCE APPELLANT WAS AFRICAN
AMERICAN AND THUGGISH LOOKING AND A CAUCASIAN [sic],
AND AN ALLEGHENY COUNTY JURY COULD NEVER BE
CONVINCED TO ACQUIT HIM OF THE INSTANT CHARGES,
BOTH ATTORNEYS TOLD HIM THAT HE COULD HAVE RECEIVED
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AT LEAST 20 YEARS IF HIS GUN CASE(S) WERE TRANSFERRED
TO FEDERAL COURT JURISDICTION, AND BOTH ATTORNEYS
TOLD HIM THAT IF HE PLED ON [JUNE 23, 2016,] THEY WOULD
ENSURE THAT THE PLEA AND SENTENCE WOULD BE QUICKLY
WITHDRAWN SINCE A MOTION TO WITHDRAW THE PLEA
WOULD BE FILED WITHIN 10 DAYS OF THE PLEA, AND IF THE
TRIAL COURT WASN’T AVAILABLE TO ENTERTAIN THE MOTION
DURING THAT 10 DAY PERIOD, AN APPEAL WOULD BE FILED
IN THE SUPERIOR COURT TO HAVE THE PLEA WITHDRAWN.
MOREOVER, TRIAL COUNSEL FARRELL FAILED TO ACT TO
WITHDRAW THE PLEA AFTER RECEIVING NOTICE, THE DAY
AFTER THE PLEA/SENTENCING, THAT APPELLANT WANTED
THE PLEA WITHDRAWN?
Appellant’s Brief at 3-4.
Preliminarily, we note that in reviewing the denial of PCRA relief, we
examine whether the PCRA court’s determination is supported by the record
and free of legal error. Commonwealth v. Fears, 86 A.3d 795, 803 (Pa.
2014) (quotations and citations omitted). “To be entitled to PCRA relief, [an]
appellant must establish, by a preponderance of the evidence, [that] his
conviction or sentence resulted from one or more of the enumerated errors in
42 Pa.C.S.[A.] § 9543(a)(2)[.]” Id.
Here, Appellant’s claim challenges plea counsel’s effectiveness as it
relates to his guilty plea. In deciding ineffective assistance of counsel claims,
we begin with the presumption that counsel rendered effective assistance.
Commonwealth v. Bomar, 104 A.3d 1179, 1188 (Pa. 2014). To overcome
that presumption, the petitioner must establish: “(1) the underlying claim has
arguable merit; (2) no reasonable basis existed for counsel’s action or failure
to act; and (3) the petitioner suffered prejudice as a result of counsel’s error,
with prejudice measured by whether there is a reasonable probability that the
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result of the proceeding would have been different.” Id. (citation omitted).
To demonstrate prejudice in an ineffective assistance of counsel claim, “the
petitioner must show that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different.” Commonwealth v. King, 57 A.3d 607, 613 (Pa. 2012). If the
petitioner fails to prove any of these prongs, the claim is subject to dismissal.
Bomar, 104 A.3d at 1188.
“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.” Commonwealth v.
Moser, 921 A.2d 526, 531 (Pa. Super. 2007) (quotations and citation
omitted). “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.” Id.(quotations and citations omitted). “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.” Commonwealth v. Barndt, 74 A.3d 185, 192 (Pa. Super.
2013) (quotations and citations omitted). “The reasonable probability test is
not a stringent one; it merely refers to a probability sufficient to undermine
confidence in the outcome.” Id. (quotations and citations omitted).
With respect to valid guilty pleas, this Court has explained:
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A valid guilty plea must be knowingly, voluntarily and intelligently
entered. The Pennsylvania Rules of Criminal Procedure mandate
that pleas be taken in open court, and require the court to conduct
an on-the-record colloquy to ascertain whether a defendant is
aware of his rights and the consequences of his plea. Specifically,
the court must affirmatively demonstrate the defendant
understands: (1) the nature of the charges to which he is pleading
guilty; (2) the factual basis for the plea; (3) his right to trial by
jury; (4) the presumption of innocence; (5) the permissible ranges
of sentences and fines possible; and (6) that the court is not
bound by the terms of the agreement unless the court accepts the
agreement. This Court will evaluate the adequacy of the plea
colloquy and the voluntariness of the resulting plea by examining
the totality of the circumstances surrounding the entry of that
plea.
Commonwealth v. Kelley, 136 A.3d 1007, 1013 (Pa. Super. 2016) (citations
omitted).
Appellant argues that his guilty plea was not knowing, voluntary, and
intelligent because plea counsel was ineffective. Specifically, Appellant
contends that “he wanted to proceed to a jury trial and never wanted to plead
guilty to any of the instant crimes, but that he was manipulated and coerced
into doing so by [t]rial [c]ounsel Thomas Farrell and [p]enalty [p]hase
[c]ounsel Michael Machen. . .” Appellant’s Brief at 14-15. Appellant asserts
that Attorney Farrell and Attorney Machen informed him that if he did not
plead guilty, the prosecutor would transfer Appellant’s firearm charge to
federal court where he would face an additional prison sentence of 25 to 30
years; Attorney Farrell told Appellant that he was not qualified to try the case
before a jury; both attorneys promised Appellant that they would withdraw
the guilty plea within 10 days; and Attorney Farrell warned Appellant that his
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“thuggish” appearance would cause a jury to find him guilty. Id. at 15-17.
The record does not support Appellant’s argument.
Based upon our review of the certified record, including Appellant’s
written colloquy and the transcripts of his guilty plea and PCRA hearing, we
conclude that Appellant’s guilty plea was knowing, voluntary, and intelligent.
The record reflects that the trial court informed Appellant of the nature of the
charges to which he pled guilty, the factual basis for the plea, his right to trial
by jury, the presumption of innocence, the sentences, and that the court was
accepting the negotiated sentence. N.T., 6/23/16, at 31-60; Explanation of
Defendant’s Rights, 6/23/16, at 1-11.
During the PCRA hearing, Attorney Farrell acknowledged that he
communicated to Appellant his concerns regarding Appellant’s appearance.
N.T., 4/2/18, at 45. However, Attorney Farrell explained that he wanted
Appellant to make a good impression during jury selection and discussed with
Appellant ways to soften his appearance for trial. Id. at 45, 57-61. Attorney
Farrell testified that the conversations relating to Appellant’s appearance were
part of trial strategy discussions and not about inducing Appellant to plead
guilty. Likewise, both Attorney Farrell and Attorney Machen testified that they
discussed the threat of federal prosecution with Appellant. Id. at 40-44, 52.
Both attorneys explained that these discussions were to ensure that Appellant
was fully informed of all the risks of proceeding to trial. Id. Both attorneys
denied promising Appellant that they would withdraw his guilty plea. Id. at
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38-39, 52-53. The PCRA court found Attorney Farrell and Attorney Machen’s
testimony credible. PCRA Court Opinion, 7/5/18, at 4.
Importantly, during the oral colloquy, Appellant indicated that he was
not forced into pleading guilty, and that he was satisfied with counsel’s
representation. Id. at 42-45. Appellant acknowledged that he decided to
exchange his rights, including the right to defend the charges brought against
him, for a favorable sentence of 15 to 30 years of incarceration, where, if
convicted following a jury trial, Appellant would have faced a life sentence or
possibly the death penalty. Id. at 33-36, 40-41. Appellant stated that he
understood the ramifications of pleading guilty and that he was entering his
plea on his own volition. Id. at 44.
By arguing that plea counsel’s ineffectiveness forced him to plead guilty,
Appellant implies that his responses to the plea colloquies were untruthful. A
defendant who elects to plead guilty “is bound by the statements he makes in
open court while under oath and he may not later assert grounds for
withdrawing the plea which contradict the statements he made at his plea
colloquy.” Commonwealth v. Turetsky, 925 A.2d 876, 881 (Pa. Super.
2007) (quotations and citations omitted). “A criminal defendant who elects
to plead guilty has a duty to answer questions truthfully.” Id. Likewise, in
cases where a PCRA court passes on witness credibility, its credibility
determinations should be provided great deference by reviewing courts. See,
e.g., Commonwealth v. (Damon) Jones, 912 A.2d 268, 293 (Pa. 2006);
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Commonwealth v. Santiago, 855 A.2d 682, 694 (Pa. 2004) (Opinion
Announcing the Judgment of the Court) (“[W]e are bound by the PCRA court’s
credibility determinations where there is record support for those
determinations.”); Commonwealth v. Abu-Jamal, 720 A.2d 79, 99 (Pa.
1998) (“Just as with any other credibility determination, where the record
supports the PCRA court’s credibility determinations, those determinations are
binding on this [C]ourt.”). For these reasons, we conclude that the PCRA court
did not err in denying Appellant’s petition seeking post-conviction relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/16/2018
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