Com. v. Grande, R. ( 2014 )

J-S51011-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
RAFAEL ELIAS GRANDE,
Appellant No. 143 MDA 2014
Appeal from the PCRA Order December 16, 2013
In the Court of Common Pleas of Lebanon County
Criminal Division at No(s): CP-38-CR-0000256-2012
BEFORE: BOWES, OTT, and MUSMANNO, JJ.
MEMORANDUM BY BOWES, J.: FILED AUGUST 21, 2014
Rafael Elias Grande appeals from the December 16, 2013 order
denying his first PCRA petition. We affirm.
On June 27, 2012, Appellant pled guilty to persons not to possess
firearms. In exchange for his plea, the Commonwealth agreed to
recommend a minimum sentence of three and one-half years, a term that is
at the bottom of the standard range of the sentencing guidelines. The
parties agreed that the sentencing court would determine the maximum
term of imprisonment following review of the presentence investigation
report and a sentencing hearing.
The trial court iterated the factual basis of the guilty pleas as follows:
In the early morning hours of August 16, 2011, Patrolman
Fisher of the Lebanon City Police Department encountered
DEFENDANT in the 200 block of North 5th Street. In his police
report, Officer Fisher explained that DEFENDANT was holding an
J-S51011-14
object at his side. As he approached DEFENDANT, however, he
realized that the object was no longer in his hand. A screening of
the surrounding area revealed a [rifle] in the grass located near
DEFENDANT. Patrolman Fisher noted that while the grass around
the weapon was wet, the top side of the weapon was dry. At that
point, he believed that the item he saw in DEFENDANT's hand
moments earlier was the same weapon he located on the
ground.
A review of DEFENDANT'S criminal history by Detective
Verna of the Lebanon City Police Department indicated that
DEFENDANT had been convicted of a felony in another state
which would prohibit him from possessing a firearm in the
Commonwealth of Pennsylvania. Accordingly, DEFENDANT was
charged with Person Not To Possess, Use, Manufacture, Control,
Sell, or Transfer Firearms pursuant to 18 Pa.C.S. 6105(A)(1).
The crime for which DEFENDANT was charged carries a statutory
maximum of 10 years imprisonment.
Trial Court Opinion, 3/17/14, at 3.
The trial court accepted the guilty plea on June 27, 2012, and on
August 22, 2012, it imposed three and one-half to eight years imprisonment.
Appellant failed to file a direct appeal; however, on April 10, 2013, he timely
filed a pro se PCRA petition raising several issues, including: 1) his guilty
2) counsel failed to file a direct appeal on his behalf. See PCRA Petition,
4/10/13, at 2-3, 7.
Appointed counsel filed an amended petition, and following an
evidentiary hearing in which Appellant and plea counsel both testified, on
petition. This
timely appeal followed.
-2-
J-S51011-14
Appellant filed a concise statement of errors complained of on appeal
pursuant to Pa.R.A.P. 1925(b), and the PCRA court issued a Rule 1925(a)
opinion.1
was ineffective for unlawfully inducing [Appellant] to plead guilty where plea
This court has often stated,
from the grant or denial of PCRA relief requires us to determine whether the
ruling of the PCRA court is supported by the record and is free from legal
Commonwealth v. Lesko, 15 A.3d 345, 358 (Pa. 2011).
This review is limited to the findings of the PCRA court and the
evidence of record. Id. We will not disturb a PCRA court's
ruling if it is supported by evidence of record and is free of legal
error. Id. This Court may affirm a PCRA court's decision on any
grounds if the record supports it. Id. Further, we grant great
deference to the factual findings of the PCRA court and will not
disturb those findings unless they have no support in the record.
Commonwealth v. Carter, 21 A.3d 680, 682 (Pa.Super. 2011).
However, we afford no such deference to its legal conclusions.
Commonwealth v. Paddy, 609 Pa. 272, 15 A.3d 431, 442
____________________________________________
1
While Appellant asserted in his counseled PCRA petition and Rule 1925(b)
appeal, the record demonstrates that Appellant abandoned this claim during
the PCRA hearing. Specific
that counsel outline all of the issues that Appellant sought to pursue during
to pled guilty by his trial counsel because counsel refused to prepare for trial
See N.T.
PCRA Hearing, 12/16/13, at 4. Additionally, Appellant does not level this
claim in his brief. Thus, we do not address it.
-3-
J-S51011-14
(2011); Commonwealth v. Reaves, 592 Pa. 134, 923 A.2d
1119, 1124 (2007). Where the petitioner raises questions of
law, our standard of review is de novo and our scope of review
plenary. Commonwealth v. Colavita, 606 Pa. 1, 993 A.2d
874, 886 (2010).
Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa.Super. 2012).
Instantly, Appellant contends that his guilty plea was induced by
Commonwealth v. King, 57 A.3d 607, 613
(Pa. 2012), our Supreme Court reiterated the applicable legal principles
relating to the right to constitutionally effective counsel as follows:
Appellant may only obtain relief if [he] pleads and proves by a
preponderance of the evidence that [his] conviction resulted
from ineffective assistance of counsel that, under the
circumstances, so undermined the truth-determining process
that no reliable adjudication of guilt or innocence could have
taken place. See 42 Pa.C.S. § 9543(a)(2)(ii). The Pennsylvania
test for ineffectiveness is, in substance, the same as the two-
part performance-and-prejudice standard set forth by the United
States Supreme Court, see Strickland v. Washington, 466
U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984),
although this Court has divided the performance element into
two sub-parts dealing with arguable merit and reasonable
strategy. Thus, to succeed on an ineffectiveness claim, a
petitioner must establish that: the underlying legal claim has
arguable merit; counsel had no reasonable basis for her action
or inaction; and the petitioner suffered prejudice as a result.
See Commonwealth v. Pierce, 515 Pa. 153, 158 60, 527 A.2d
973, 975 76 (1987). To demonstrate prejudice, the petitioner
counsel's unprofessional errors, the result of the proceeding
Strickland, 466 U.S. at 694, 104
S.Ct. at 2068; accord Commonwealth v. Cox, 603 Pa. 223,
243, 983 A.2d 666, 678 (2009). A reasonable probability is a
probability sufficient to undermine confidence in the outcome of
the proceeding. See Commonwealth v. Ali, 608 Pa. 71, 86
87, 10 A.3d 282, 291 (2010). No relief is due, however, on any
claim that has been waived or previously litigated, as those
-4-
J-S51011-14
terms have been construed in the decisions of this Court. See
42 Pa.C.S. § 9543(a)(3).
Commonwealth v. King, 57 A.3d 607, 613 (Pa. 2012).
As it relates to the entry of
ineffectiveness will not form a basis for relief unless the alleged
ineffectiveness caused the defendant to enter the plea involuntarily or
unknowingly. See Commonwealth v. Anderson, 995 A.2d 1184, 1192
(Pa.Sup
advice was within the range of competence demanded of attorneys in
Id. (quoting Commonwealth v. Moser, 921 A.2d 526,
531 (Pa.Super. 2007)). In assessing a guilty plea, we review the totality of
during the PCRA hearing. Commonwealth v. Morrison, 878 A.2d 102, 107
(Pa.Super. 2005) (en banc).
ineffectiveness
in advising him to accept the three-and-one-half-year minimum sentence
caused him to enter the guilty plea unknowingly. Essentially, he argues that
directives to attempt to negotiate a better plea agreement were tantamount
to constitutionally ineffective assistance which induced him into accepting
is due.
-5-
J-S51011-14
During the PCRA hearing, trial counsel testified that he met with
Appellant on at least four occasions and discussed all aspects of the case
that Appellant wished to address. N.T. PCRA, 12/16/13, at 13-14. For
example, Appellant advised counsel of an unidentified criminal defendant in
an unrelated case that allegedly received an eleven-to-twenty-three-month
sentence for possessing four guns. However, when counsel inquired as to
positon, Appellant was unwilling to provide the pertinent details needed to
make his case. Id. at 15. Similarly, Appellant sought to assert a defense to
the firearm violation based upon the inoperability of the rifle. Id. at 17.
was not an element of the offense. Id. at 17-18. See Commonwealth v.
Thomas, 988 A.2d 669 (Pa. Super. 2010).
In addition, although Appellant admitted possessing the firearm, he
informed counsel that he had no idea how he acquired the rifle that Officer
Fisher believed he observed him wield. N.T. PCRA, 12/16/13, at 13-14.
Appellant sought to raise a defense that he had abandoned the gun before
the officer approached him. Id. at 14-15. Accordingly, prior to engaging in
plea negotiations, counsel started to formulate an argument for trial that the
was insufficient to establish that Appellant intended to exercise control over
-6-
J-S51011-14
it in violation of 18 Pa.C.S. 6105(A)(1). Id. at 19. However, trial counsel
also explained to Appellant that he lacked confidence that Appellant could
prevail on the abandonment issue. Id. at 8. As a result of his consultations
with counsel, Appellant concluded that it was in his best interest to enter a
plea agreement even though he did not want to. Id. To facilitate the
desired plea deal, a three-and-one-half-year minimum term of
imprisonment, which was not only near the bottom of the standard range of
the reduced agreement. Id at 11, 13-15, 16.
Thereafter, Appellant met with trial counsel to complete the written
guilty plea colloquy that was ultimately entered in this case. Id. at 16, 19.
Counsel confirmed that Appellant never indicated a change of heart or
advised him that he desired to go to trial. Id. at 16. Indeed, counsel
stressed that up until the accord was struck, he was prepared to proceed to
trial if Appellant could not get the deal that he desired. Id. at 17.
trial co
potential defense. Id. at 5, 8. He also confirmed that when he advised
counsel that he desired to go to trial, counsel fashioned an abandonment
argument. Id. at 6. However, after realizing the futility of that position and
-7-
J-S51011-14
the possibility of facing the maximum term of five to ten years
imprisonment, Appellant sought the underlying plea agreement. Id. at 6-8.
He conf
. . . [I] then thought that it was in [my] best interest to enter a plea even
Id. at 8. Appellant also testified that he
Id. at 9.2 He also acknowledged that he failed to assert a desire to
withdraw the plea during the subsequent sentencing hearing or declare his
dissatisfaction with the plea agreement that plea counsel negotiated on his
behalf. Id. at 9-10.
lea involuntarily
competence demanded of attorneys in criminal cases. Nothing in the
insufficient attention to his defense prior to the plea or that he refused to
____________________________________________
2
Appellant contended that he
representation. That assertion is inconsequential at this juncture. See
Commonwealth v. Pollard
defendant who elects to plead guilty has a duty to answer questions
truthfully. We cannot permit a defendant to postpone the final disposition of
his case by lying to the court and later alleging that his lies were induced by
-8-
J-S51011-14
take the case to trial
current dissatisfaction with his sentence is of no weight. Anderson, supra
at 1192, quoting Moser, supra
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
intelligent and voluntary.
ineffectiveness in order to withdraw his guilty plea is unavailing.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/21/2014
-9-