Com. v. Womack, M. ( 2022 )

J-S33007-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MARCUS WOMACK :
:
Appellant : No. 2090 EDA 2020
Appeal from the PCRA Order Entered October 13, 2020,
in the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0002836-2016
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MARCUS WOMACK :
:
Appellant : No. 2091 EDA 2020
Appeal from the PCRA Order Entered October 13, 2020,
in the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0002889-2015.
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MARCUS WOMACK :
:
Appellant : No. 2092 EDA 2020
J-S33007-22
Appeal from the PCRA Order Entered October 13, 2020,
in the Court of Common Pleas of Philadelphia County,
Criminal Division at No(s): CP-51-CR-0007878-2015.
BEFORE: KUNSELMAN, J., KING, J., and SULLIVAN, J.
MEMORANDUM BY KUNSELMAN, J.: FILED NOVEMBER 22, 2022
Marcus Womack appeals from the order denying his first petition for
relief pursuant to the Post Conviction Relief Act (“PCRA”). 42 Pa.C.S.A. §§
9541-46. We affirm.
The pertinent facts and procedural history are as follows. On June 28,
2017, Womack entered open guilty pleas at the above dockets to firearm and
related charges stemming from the straw purchase of guns.1 On October 19,
2017, the trial court imposed an aggregate term of five to ten years of
incarceration plus five years of probation. Womack did not file a post-
sentence motion and his pro se direct appeals were dismissed as untimely
filed.
On September 5, 2018, Womack filed a timely PCRA petition. The PCRA
court appointed counsel. On January 15, 2020, PCRA counsel filed an
amended petition in which Womack asserted that his plea counsel rendered
ineffective assistance by advising him to plead guilty. On March 13, 2020,
the Commonwealth filed a motion to dismiss. On August 11, 2020, the PCRA
court issued a Pa.R.Crim.P. 907 notice of its intent to dismiss Womack’s
____________________________________________
1 All charges in a third case were nolle prossed on November 20, 2017.
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petition. Womack did not file a timely response. By order entered October
13, 2020, the PCRA court denied Womack’s petition. Womack filed an appeal
at each docket, which this Court consolidated sua sponte on December 30,
2020. Both Womack and the PCRA court have complied with Pa.R.A.P. 1925.2
Womack raises the following two issues on appeal:
A. Should [this] Court quash [Womack’s] appeals as
untimely?
B. Did PCRA counsel render ineffective assistance by not
alleging plea counsel’s ineffectiveness for assuring
[Womack] that he would be sentenced to three to six
years of incarceration?
Womack’s Brief at 5.
We first note that the Commonwealth agrees with Womack that his
appeal should not be quashed as untimely. See Commonwealth’s Brief at 12-
13. Our review of this Court’s docket reveals that although timely filed from
the October 13, 2020, order dismissing his PCRA petition, Womack identified
the earlier Rule 907 notice as the final order. Nevertheless, as the appeal was
timely filed from the PCRA court’s final order dismissing Womack’s PCRA
petition, we need not remand. Instead, we have corrected the captions
accordingly. See Pa.R.A.P. 902 (providing that the “[f]ailure of an appellant
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2Substantial delay occurred before this appeal was ready to be listed for panel
consideration. Our prothonotary twice sent overdue notices regarding the
overdue record and its was not received in this Court until November 17, 2021.
Thereafter, both Womack and the Commonwealth requested multiple
extensions of time to file their brief. Ultimately, the Commonwealth filed its
brief on August 26, 2022, and the case was assigned to this panel.
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to take any step other than the timely filing of a notice of appeal does not
affect the validity of the appeal, but is subject to such action as the appellate
court deems appropriate which includes, but is not limited to remand of the
matter to the lower court so that the omitted procedural step may be taken”).
Thus, we address Womack’s second issue.
This Court’s standard of review for an order dismissing a PCRA petition
is to ascertain whether the order “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.” Commonwealth
v. Barndt, 74 A.3d 185, 191-92 (Pa. Super. 2013) (citations omitted).
The PCRA court has discretion to dismiss a petition without
a hearing when the court is satisfied that there are no
genuine issues concerning any material fact, the defendant
is not entitled to post-conviction collateral relief, and no
legitimate purpose would be served by further proceedings.
To obtain a reversal of a PCRA court’s decision to dismiss a
petition without a hearing, an appellant must show that he
raised a genuine issue of material fact which, if resolved in
his favor, would have entitled him to relief, or that the court
otherwise abused its discretion in denying a hearing.
Commonwealth v. Blakeney, 108 A.3d 739, 750 (Pa. 2014) (citations
omitted).
Womack’s claim alleges the ineffective assistance of PCRA counsel for
the first time on appeal pursuant to Commonwealth v. Bradley, 261 A.3d
381 (Pa. 2021). To obtain relief under the PCRA premised on a claim that
counsel was ineffective, a petitioner must establish, by a preponderance of
the evidence, that counsel's ineffectiveness so undermined the truth-
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determining process that no reliable adjudication of guilt or innocence could
have taken place. Commonwealth v. Johnson, 966 A.2d 523, 532 (Pa.
2009). “Generally, counsel’s performance is presumed to be constitutionally
adequate, and counsel will only be deemed ineffective upon a sufficient
showing by the petitioner.” Id. This requires the petitioner to demonstrate
that: (1) the underlying claim is of arguable merit; (2) counsel had no
reasonable strategic basis for his or her action or inaction; and (3) counsel’s
act or omission prejudiced the petitioner. Id. at 533.
Before considering the merits of Womack’s claim, we must first address
the Commonwealth’s assertion that he waived the issue because he did not
challenge initial PCRA counsel’s ineffectiveness in his Rule 1925(b) statement
of errors claimed of on appeal. See Commonwealth’s Brief at 13-14. A review
of Womack’s Rule 1925(b) statement reveals that his ineffectiveness claims
were only raised as to plea counsel; Womack did not present a claim of layered
ineffectiveness by including a claim regarding initial PCRA counsel. Thus, the
PCRA court did not have an opportunity to address Womack’s layered claim
that PCRA counsel was ineffective for not claiming plea counsel was ineffective
for allowing him to enter a guilty plea based on plea counsel’s promise of a
three to six-year sentence.
In Commonwealth v. Parrish, 273 A.3d 989 (Pa. 2022), our Supreme
Court was divided over whether, in light of Bradley, supra, Parrish preserved
a claim of initial PCRA counsel’s ineffectiveness in his Rule 1925(b) statement.
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At issue in Parrish was whether the petitioner’s new PCRA counsel adequately
preserved a layered claim that initial PCRA counsel was ineffective.
Specifically, in his brief Parrish argued that his first PCRA counsel was
ineffective for failing to adequately argue trial counsel failed to consult with
him about filing an appeal. However, in his Rule 1925(b) statement to his
PCRA appeal, his new PCRA counsel only faulted PCRA counsel for failing to
challenge trial counsel’s ineffectiveness in not filing a requested notice of
appeal.
Writing for the majority, Justice Donahue found that Parrish “adequately
raised and preserved his layered claim of the ineffective assistance of trial and
initial PCRA counsel by raising it at the first opportunity to do so, specifically
in his [Rule] 1925(b) Statement and in his brief filed with [the Supreme Court]
in this appeal.” Parrish, 273 A.3d at 1002. According to Justice Donahue,
Parrish preserved the failure to consult claim because “a failure to consult
argument, at base, must assert that counsel failed to file an appeal that would
have been requested.” Parrish, 273 A.3d at 1000, n.9. She further noted
that, according to the language of Rule 1925(b), each error identified in the
statement “will be deemed to include every subsidiary issue that raised in the
trial court[.]” Id. citing Pa.R.A.P. 1925(b)(4)(v). Justice Donahue then
concluded that “Parrish’s framing of the issue in paragraph seventeen [of his
Rule 1925(b) statement] adequately encompasses” the failure to consult
claim.
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In his dissent, Justice Dougherty, joined by two justices, stressed the
importance of strictly reading the Rule 1925(b) statement. After citing prior
cases, including Parrish’s prior appeal, Justice Dougherty found Parrish waived
his ineffectiveness claim because he failed to raise the specific claim of initial
PCRA counsel’s ineffectiveness in his Rule 1925(b) statement. According to
Justice Dougherty, the failure to consult with an appellant is a distinct issue
from failing to file a requested appeal. Because failure to consult claim was
not raised with specificity in Parrish’s Rule 1925(b) statement, it was waived.
See Parrish, 273 A.3d at 1007-1011.
Although our high court was divided over whether the specific claim of
initial PCRA counsel’s ineffectiveness raised by Parrish in his Rule 1925(b)
statement encompassed the claim of initial PCRA counsel’s ineffectiveness for
failing to consult, both decisions stress that a claim of PCRA counsel’s
ineffectiveness must be raised in the Rule 1925(b) statement. Here, by
contrast, Womack’s Rule 1925(b) statement does not reference PCRA counsel,
but rather speaks only to the ineffectiveness of plea counsel.
In Commonwealth v. Alston, 279 A.3d 1283, *7 (Pa. Super. 2022)
(non-precedential decision), this Court found waiver when the pro se PCRA
petitioner did not raise the claim of PCRA counsel’s ineffectiveness in the Rule
1925(b) statement. As in Alston, because new PCRA counsel did not raise
Womack’s layered claim of ineffectiveness in his Rule 1925(b) statement, we
agree with the Commonwealth that Womack’s second issue is waived.
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Even absent waiver, however, our review of the record refutes
Womack’s claim that his initial PCRA counsel was ineffective. See Bradley,
261 A.2d at 402 (explaining that an appellate court may address
straightforward claims of PCRA counsel’s ineffectiveness).
In making a layered claim of ineffectiveness, a PCRA petitioner “must
properly argue each prong of the three-prong ineffectiveness test for each
separate attorney.” Commonwealth v. Rykard, 55 A.3d 1177, 1190 (Pa.
Super. 2012). “In determining a layered claim of ineffectiveness, the critical
inquiry is whether the first attorney that the defendant asserts was ineffective
did, in fact, render ineffective assistance of counsel.” Commonwealth v.
Burkett, 5 A.3d 1260, 1270 (Pa. Super. 2010). “If that attorney was
effective, then subsequent counsel cannot be deemed ineffective for failing to
raise the underlying issue.” Id. Thus, we first consider whether plea counsel
was ineffective.
Regarding claims of ineffectiveness in relation to the entry of plea, we
note:
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 into 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.
The standard for post-sentence withdrawal of guilty pleas
dovetails with the arguable merit/prejudice requirements
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for relief based on a claim of ineffective assistance of plea
counsel, . . . under which the defendant must show that
counsel’s deficient stewardship resulted in a manifest
injustice, for example, by facilitating the entry of an
unknowing, involuntary, or unintelligent plea. This standard
is equivalent to the “manifest injustice” standard applicable
to all post-sentence motions to withdraw a guilty plea.
Commonwealth v. Kelley, 136 A.3d 1007, 1012-13 (Pa. Super. 2016)
(citations omitted).
Moreover, “[o]ur law presumes that a defendant who enters a guilty
plea was aware of what he was doing,” and “[h]e bears the burden of proving
otherwise.” Commonwealth v. Pollard, 832 A.2d 517, 523 (Pa. Super.
2003) (citations omitted).
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.
Id. On appeal, this Court evaluates the adequacy of the plea colloquy and
the voluntariness of the resulting plea by looking at the totality of the
circumstances. Commonwealth v. Yeomans, 24 A.3d 1044, 1047 (Pa.
Super. 2011).
With these standards in mind, we need only briefly address Womack’s
claim that plea counsel promised him a sentence of no more than three to six
years of imprisonment. This claim contradicts the answers Womack gave in
both his oral and written guilty plea colloquies. At his oral guilty plea colloquy,
Womack acknowledged that, due to a prior conviction, plea counsel had
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informed him that he was facing a mandatory five to ten years of
imprisonment. See N.T., 6/28/17, at 11-12. Additionally, Womack
acknowledged that no promises had been made in return for his guilty plea.
See id. at 17.
In sum, Womack waived his claim of initial PCRA counsel’s
ineffectiveness for failing to raise the claim in his Rule 1925(b) statement.
Even absent waiver, the record readily refutes Womack’s claim that he was
promised a lesser sentence in return for his guilty plea. We therefore affirm
the order denying Womack post-conviction relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/22/2022
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