Com. v. Weedon, G. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
GREGORY WEEDON, :
:
Appellant : No. 2430 EDA 2014
Appeal from the PCRA Order March 20, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division No(s).: CP-51-CR-0004036-2009
CP-51-CR-0004037-2009
CP-51-CR-0013881-2010
CP-51-CR-0004033-2009
BEFORE: FORD ELLIOTT, P.J.E., STABILE, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED JULY 21, 2015
Appellant, Gregory Weedon, appeals from the order entered in the
Philadelphia County Court of Common Pleas dismissing for lack of merit his
petition for relief filed pursuant to the Post Conviction Relief Act 1 (“PCRA”).
Appellant argues his plea counsel was ineffective for inducing his involuntary
guilty plea and the PCRA court erred in not holding an evidentiary hearing.
We affirm.
On December 13, 2010, Appellant appeared before the trial court on
*
Former Justice specially assigned to the Superior Court.
1
42 Pa.C.S. §§ 9541-9546.
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four cases, entered a negotiated guilty plea, and immediately received
sentence. At docket CP-51-CR-0004033-2009 (“4033-2009”), Appellant
pleaded guilty to attempted murder2 and persons not to possess firearms.3
N.T., 12/13/10, at 22. The charges arose on September 2, 2008. As
Anthony Reed ran from the sound of gunshots, a bullet struck him in the
back. While Reed did not see his assailant, the police obtained two casings
from the scene and submitted them to the police crime lab for analysis.
PCRA Ct. Op., 9/22/14, at 1. Appellant received a sentence of ten to twenty
years’ imprisonment for attempted murder and a consecutive ten years’
probation for the firearm charge. N.T. at 28.
At dockets CP-51-CR-0004034 (“4034-2009”), CP-51-CR-0004035
(“4035-2009”), and CP-51-CR-0004036-2009 (“4036-2009”), Appellant
pleaded guilty to one charge of persons not to possess a firearm and four
counts of simple assault.4 N.T. at 23. Appellant’s brother was in an
argument with three neighbors outside a row home on October 1, 2008.
Appellant arrived and threatened the neighbors while waving a black
handgun. The neighbors retreated to their home and called the police,
reporting Appellant; they knew Appellant “by face from the neighborhood.”
PCRA Ct. Op. at 1-2. Appellant received ten years’ probation for the firearm
2
18 Pa.C.S. §§ 901(a), 2502.
3
18 Pa.C.S. § 6105(a)(1).
4
18 Pa.C.S. § 2701(a).
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charge, to be served concurrently with the above probationary sentence.5
N.T. at 29.
At docket CP-51-CR-0004037-2009, Appellant pleaded guilty to
persons not to possess a firearm and two counts of aggravated assault. 6 Id.
at 23. Two police officers bearing an arrest warrant went to a bar searching
for Appellant on October 9, 2008. When the officers asked him to step
outside, Appellant attempted to rush past the officers, striking one in the
chest. During the confrontation, Appellant pulled out a black, loaded .40
caliber handgun from his own waistband. The officers knocked the weapon
from Appellant’s hand, but he grabbed it once more before he was subdued.
One of the officers suffered a strained meniscus and a fractured bone in his
right wrist and missed three months of work. The police crime lab later
matched the casings found on September 2 with the gun taken from
Appellant. Id. at 2. Appellant received ten to twenty years’ imprisonment
and ten years’ probation, both to be served concurrently with the sentences
at 4033-2009. N.T. at 29-30.
At docket CP-51-CR-0013881-2010 (“13881-2010”), Appellant pleaded
guilty to aggravated assault. N.T. at 23-24. Incarcerated and awaiting trial,
Appellant had intervened in a fight between two other inmates on August
21, 2010. As a corrections officer was attempting to place one of the
5
There was no penalty on the simple assault charges.
6
18 Pa.C.S. § 2702(a).
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original instigators in a holding cell, Appellant pushed the officer to the
ground from behind. Appellant and the two other inmates then fell on top of
her, causing the officer back pain and a swollen knee. Id. at 2-3. Appellant
was sentenced to ten to twenty years’ incarceration, to be served
concurrently with his first incarceration sentence. Court Commitment,
12/13/10.
At the plea hearing, the Commonwealth stated that it “would have
contended” the “shooting of Anthony Reed” and “the aggravated assault
charges on the police officers” were “second strike case[s 7] based upon the
adjudication for aggravated assault, F-1, that [Appellant] already has.”8
N.T. at 24. The Commonwealth further contended Appellant “wanted to take
a package deal[.]” Id. at 24-25. No direct appeal was filed.9
7
At various points of the plea hearing, the Commonwealth stated that
Appellant had “a prior record score of four,” “an aggravated assault . . . and
possession of an instrument of crime adjudication as a juvenile,” as well as a
“prior record conviction [that] made [him] ineligible to have a firearm.” N.T.
at 4, 16, 19. However, the certified record does not provide any more
information about a prior adjudication or conviction.
8
42 Pa.C.S. § 9714(a)(1) (“Any person who is convicted . . . of a crime of
violence shall, if at the time of the commission of the current offense the
person had previously been convicted of a crime of violence, be sentenced to
a minimum sentence of at least ten years of total confinement . . . .”).
9
There is reference within the trial court opinion, Appellant’s brief, and the
trial court criminal docket that Appellant filed a motion for reconsideration of
sentence in docket 4033-2009. However, there is no such motion within the
certified record.
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Appellant filed a timely pro se PCRA petition on May 17, 2011. Current
counsel was appointed on January 1, 2012, and submitted an amended
PCRA petition on November 14, 2012. The Commonwealth filed a motion to
dismiss the PCRA petition on May 8, 2013.10 On February 20, 2014, the
PCRA court issued a twenty-day notice of intent to dismiss without a hearing
pursuant to Pa.R.Crim.P. 907. One month later, on March 20th, the court
formally dismissed the amended PCRA petition. Appellant filed a timely
notice of appeal on April 4th and a timely court-ordered Pa.R.A.P. 1925(b)
statement11 on June 11th.
Appellant raises the following issues for our review, reproduced
verbatim:
I. Whether the Judge was in error in denying the
Appellant’s PCRA petition without an evidentiary hearing
on the issues raised in the amended PCRA petition
regarding trial counsel’s ineffectiveness.
II. Whether the Judge was in error in not granting relief on
the PCRA petition alleging counsel was ineffective.
Appellant’s Brief at 8.
Appellant contends that he maintained his innocence to his plea
counsel. Id. at 18. He avers, “However, due to the inducing acts and
10
“During the pending of the PCRA court proceedings, Judge [Thomas]
Dempsey passed and the case was” assigned to Judge Ramy Djerassi. PCRA
Ct. Op. at 3.
11
We note the PCRA court states the 1925(b) statement was ordered on
June 2, 2014. However, the filing stamp on the order reflects it was issued
on May 21, 2014.
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coercive acts of counsel upon . . . Appellant, he was unlawfully induced to
plead guilty to a charge based upon facts to which he did not consent.” Id.
at 18-19. Appellant alleges counsel had no reasonable basis to coerce him
to plead guilty “especially when there was an excellent defense available.”
Id. at 20-21. Appellant further
contends he was promised by his attorney that on Bill CP-
51-CR[-]0013881-2010, aggravated assault, felony of the
second degree, that the sentence would be [two to four]
years to run concurrently with his other cases he was
pleading guilty to. He later found out from the prison that
the sentence was running consecutively and thus his guilty
plea was not valid.
Id. at 17. Appellant also asserts the PCRA court erred in not conducting “an
evidentiary hearing to provide the forum to demonstrate such manifest
injustice.” Id. at 16. We find no relief is due.
Under [the Pennsylvania Supreme Court’s] standard of
review for an appeal from the denial of PCRA relief, we
must determine whether the ruling of the PCRA court is
supported by the record and is free of legal error. The
PCRA court’s credibility determinations are binding on [the
Supreme Court] when they are supported by the record.
However, this Court applies a de novo standard of review
to the PCRA court’s legal conclusions.
Commonwealth v. Chmiel, 30 A.3d 1111, 1127 (Pa. 2011) (citations
omitted).
To succeed on an ineffectiveness of counsel claim, a petitioner must
show: “(1) the underlying legal claim has arguable merit; (2) counsel had no
reasonable basis for his . . . action or inaction; and (3) the petitioner
suffered prejudice because of counsel’s ineffectiveness.” Id. A failure to
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satisfy one or all of the requirements will result in the rejection of his
ineffectiveness of counsel claim. Id. at 1128. There is a presumption that
counsel is effective and the burden is upon the petitioner to show otherwise.
Id. at 1127.
The PCRA provides relief when “[a] plea of guilty [is] unlawfully
induced [and] where the circumstances make it likely that the inducement
caused the petitioner to plead guilty and the petitioner is innocent.” 42
Pa.C.S. § 9543(a)(2)(iii). “[A]llegations 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 and unknowing
plea.” Commonwealth v. Anderson, 995 A.2d 1184, 1192 (Pa. Super.
2010) (citation omitted). A petitioner is bound by statements he made
under oath in a plea colloquy, and may not “assert grounds for withdrawing
the plea which contradict the statements.” Commonwealth v. Willis, 68
A.3d 997, 1009 (Pa. Super. 2013). “Once the defendant has entered a
guilty plea, ‘it is presumed that he was aware of what he was doing, and the
burden of proving involuntariness is upon him.’” Id. at 1002.
There is no absolute right to an evidentiary hearing on a PCRA
petition. Commonwealth v. Barbosa, 819 A.2d 81, 85 (Pa. Super. 2003);
see also Pa.R.Crim.P 907(1). A court may not summarily dismiss a petition
“when the facts alleged in the petition, if proven, would entitle the petitioner
to relief.” Barbosa, 819 A.2d at 85. “The PCRA court has the discretion to
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dismiss a petition without a hearing when the court is satisfied ‘that there
are no genuine issues concerning any material fact.’” Commonwealth v.
Roney, 79 A.3d 595, 604 (Pa. 2013), cert. denied, 135 S. Ct. 56 (2014).
Instantly, the PCRA court found no merit to Appellant’s claim that plea
counsel caused him to enter a guilty plea based on wrong advice. PCRA Ct.
Op. at 4-5. The court stated, “At the plea hearing, both the Commonwealth
attorney and the Court were clear that the negotiated guilty plea was a
‘package deal’ involving ten to twenty years of incarceration followed by ten
years of probation for each charge, and each sentence would run
concurrently.” Id. at 5. We agree.
First, we find no merit to Appellant’s claim that plea counsel promised
a sentence of two to four years at docket 13881-2010. See Appellant’s Brief
at 17. At the plea hearing, the Commonwealth first stated it had
offered in what in layman’s terms could be called a
package deal. In exchange for [Appellant’s] acceptance or
responsibility to all of these cases, we would recommend
that the Court impose a sentence of ten to 20 years’
incarceration with a consecutive ten years’ probation[.]
N.T. at 4. The court addressed Appellant:
THE COURT: [Appellant], as I think [the
Commonwealth] has stated, the terms of the incarceration
is going to be ten to 20 years and that I understand would
be followed by ten years’ probation?
[The Commonwealth:] That’s correct.
Id. The court then advised Appellant, and Appellant responded, as follows:
THE COURT: In terms of the voluntariness, we know
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what the basic terms are of your negotiated plea, the ten
to 20 years followed by ten years’ probation. Other than
that, have any force or any promises been made to you to
get you to give up your right to a jury trial and to plead
guilty today?
[Appellant:] No.
Id. at 8. The foregoing establish that Appellant acknowledged the ten-to-
twenty-year sentence and stated no other promises were made to him.
Appellant is bound to these statements and cannot now aver there was
another promise made by plea counsel. See Willis, 74 A.3d at 202.
Furthermore, the PCRA reasoned, “[Appellant’s] claim is nonsense; he
was promised a concurrent sentence incorporating all of his consolidated
cases, and this is exactly what [the court] delivered.” PCRA Ct. Op. at 4.
We agree. Appellant’s claim that prison officials informed him “that the
sentence was running consecutively” is meritless. See Appellant’s Brief at
17.
We further reject Appellant’s claim that plea counsel was ineffective by
inducing him to enter an involuntary guilty plea despite his claims of
innocence. In his colloquy at the plea hearing, Appellant averred the
Commonwealth “went over the guilty plea forms with” him, he spoke with
his plea counsel, and that he understood he was entitled to a jury trial,
twelve jurors would have to be unanimous in finding guilt or no guilt, and
that in pleading guilty, any direct appeal issues would be limited. N.T. at 5-
7. The Commonwealth then stated on the record the alleged facts of each
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case, and Appellant pleaded guilty. Id. at 9-24. Appellant has failed to
show plea counsel unlawfully induced his plea. See Anderson, 995 A.2d at
1192.
Finally, the PCRA court found, “[B]ecause there are no genuine issues
of material fact [and] there was no need for an evidentiary hearing.” PCRA
Ct. Op. at 4. We find no error, as Appellant has not alleged any question of
material fact and no relief is due. See Roney, 79 A.3d at 604.
Accordingly, we affirm the order dismissing the PCRA petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/21/2015
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