Com. v. Wright, B., Sr. ( 2018 )

J-S45045-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
BOBBY JACOB WRIGHT, SR. :
:
Appellant : No. 501 MDA 2018
Appeal from the PCRA Order February 28, 2018
in the Court of Common Pleas of Lancaster County
Criminal Division at No.: CP-36-CR-0004537-2016
BEFORE: PANELLA, J., OTT, J., and PLATT*, J.
MEMORANDUM BY PLATT, J.: FILED SEPTEMBER 25, 2018
Appellant, Bobby Jacob Wright, Sr., appeals pro se from the order
dismissing his first petition filed pursuant to the Post Conviction Relief Act
(PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.
The PCRA court aptly summarized the background of this case as
follows:
On March 27, 2017, [Appellant] pled guilty to a felony
charge of possession with intent to deliver cocaine, a
misdemeanor charge of possession of heroin, driving under the
influence of alcohol, false identification to law enforcement,
driving while operating privilege is suspended and violation of
traffic control devices. [The] facts underlying the charges are that
on August 20, 2016, [Appellant] was stopped by police after
running a red light. During the traffic stop, the officer could smell
the odor of alcohol coming from [Appellant’s] breath and person
and observed [Appellant] to have bloodshot, watery eyes and to
be slurring his speech. [Appellant] admitted that his driving
privileges were suspended and gave a false name to the officer.
During the search incident to arrest, six (6) bags of cocaine and
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* Retired Senior Judge assigned to the Superior Court.
J-S45045-18
three hundred sixty-five dollars ($365.00) in cash was found on
[Appellant’s] person. During a subsequent search of [Appellant’s]
vehicle, a bundle of heroin and an additional eight hundred thirty-
five dollars ($835.00) was discovered. During the proceedings,
[Appellant] acknowledged that he committed the offenses and
confirmed that by pleading guilty he was admitt[ing] to the
underlying facts as alleged by the Commonwealth.
Pursuant to the terms of the negotiated plea agreement,
[Appellant] was sentenced to an aggregate term of twenty-seven
(27) months to fifty-four (54) months of incarceration.
[Appellant] did not file any post sentence motion or a direct
appeal. On August 23, 2017, [Appellant] filed a timely pro se
PCRA petition. MaryJean Glick, Esquire was appointed as counsel
for [Appellant], but filed a Turner/Finley[1] letter and motion to
withdraw on October 30, 2017. Following a response from
[Appellant], appointed counsel filed an amended Turner/Finley
letter and motion to withdraw on December 1, 2017.
(Notice issued pursuant to Pennsylvania Rule of Criminal Procedure 907(1),
1/11/18, at 1-2) (footnotes omitted); see Pa.R.Crim.P. 907(1).
On January 11, 2018, the PCRA court issued Rule 907 notice of its intent
to dismiss the petition without a hearing, and granted counsel’s motion to
withdraw. Following Appellant’s submission of a response, the court entered
its order dismissing the PCRA petition on February 28, 2018. This timely
appeal followed.2
Appellant raises the following overlapping issues for our review:
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1Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v.
Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
2 Appellant timely filed a court-ordered concise statement of errors complained
of on appeal on March 29, 2018. The court entered an opinion on April 19,
2018, in which it referred this Court to its Rule 907 notice for the reasons for
its decision. See Pa.R.A.P. 1925.
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I. Whether Appellant is entitled to post-conviction relief as a
result of trial counsel’s ineffectiveness in neglecting to
investigate when there is a real possibility that crucial evidence
was mishandled and/or tampered with, by the prosecution, and
therefore tainted[?]
II. Whether Appellant is entitled to post-conviction relief as a
result of trial counsel advising Appellant to plead guilty but
refusing to submit a motion to suppress evidence when
Appellant requested that he do so because of the discrepancies
in the evidence[?]
III. Whether Appellant is entitled to post-conviction relief as a
result of trial counsel withholding discovery material[s] which
prevented Appellant from knowing the extent of the
prosecution’s case so that Appellant could make an intelligent
decision in regards to the guilty plea[?]
IV. (Separate Matter) Whether PCRA counsel was ineffective
for abandoning two of the issues raised with this [C]ourt as well
as the PCRA court erring by failing to adjudicate those same
issues[?]
(Appellant’s Brief, at 4).3
We begin by noting, “[w]hen reviewing the denial of a PCRA petition,
our standard of review is limited to examining whether the PCRA court’s
determination is supported by evidence of record and whether it is free of legal
error.” Commonwealth v. Jordan, 182 A.3d 1046, 1049 (Pa. Super. 2018)
(citation omitted).
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3 We note at the outset that Appellant’s fourth issue, claiming ineffective
assistance of PCRA counsel, is waived for his failure to raise it in his Rule
1925(b) statement. (See Rule 1925(b) Statement, 3/29/18); see also
Pa.R.A.P. 1925(b)(4)(vii).
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Instantly, Appellant purports to raise three issues challenging the
assistance of plea counsel, which we collectively interpret as a claim that
counsel’s ineffectiveness caused him to enter an involuntary and unknowing
plea. (See Appellant’s Brief, at 7-12).4 In support, he argues that counsel
failed to investigate the prosecution’s mishandling or tampering with evidence
of the drugs recovered from his person and/or vehicle, pointing to
discrepancies regarding the total weight of cocaine and number of bags of
heroin. (See id. at 7, 9-10). Appellant’s arguments merit no relief.
A criminal defendant has the right to effective
counsel during a plea process as well as during trial.
A defendant is permitted to withdraw his guilty plea
under the PCRA if ineffective assistance of counsel
caused the defendant to enter an involuntary plea of
guilty.
We conduct our review of such a claim in
accordance with the three-pronged ineffectiveness
test under section 9543(a)(2)(ii) of the PCRA, 42
Pa.C.S.A. § 9543(a)(2)(ii). The voluntariness of the
plea depends on whether counsel’s advice was within
the range of competence demanded of attorneys in
criminal cases.
In order for Appellant to prevail on a claim of
ineffective assistance of counsel, he must show, by a
preponderance of the evidence, ineffective assistance
of counsel which, in the circumstances of the
particular case, so undermined the truth-determining
process that no reliable adjudication of guilt or
innocence could have taken place. Appellant must
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4 Appellant’s pro se brief is rambling and difficult to follow. We nonetheless
address his claims as we interpret them, keeping in mind that we construe
liberally filings by pro se litigants. See Commonwealth v. Lyons, 833 A.2d
245, 251-52 (Pa. Super. 2003), appeal denied, 879 A.2d 782 (Pa. 2005).
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demonstrate: (1) the underlying claim is of arguable
merit; (2) that counsel had no reasonable strategic
basis for his or her action or inaction; and (3) but for
the errors and omissions of counsel, there is a
reasonable probability that the outcome of the
proceedings would have been different. The petitioner
bears the burden of proving all three prongs of the
test.
Moreover, trial counsel is presumed to be effective.
In the context of a plea, a claim of ineffectiveness may
provide relief only if the alleged ineffectiveness caused an
involuntary or unknowing plea. [A] defendant is bound by the
statements which he makes during his plea colloquy. As such, a
defendant may not assert grounds for withdrawing the plea that
contradict statements made when he entered the plea.
Commonwealth v. Orlando, 156 A.3d 1274, 1280–81 (Pa. Super. 2017)
(case citations and quotation marks omitted).
Here, the PCRA court addressed Appellant’s claims as follows:
. . . [Appellant], with the assistance of counsel, signed a
written guilty plea colloquy form and plea agreement indicating he
knew and understood the charges to which he was pleading guilty
and the sentence that he would receive. [Appellant] confirmed on
the record that he understood the charges to which he was
pleading guilty, the terms and conditions of the plea agreement
and the sentence that he would receive. [Appellant] confirmed
that he understood the nature of the charges to which he was
pleading guilty, including the elements which the Commonwealth
would have to prove for each. [Appellant] also confirmed that the
facts underlying the charges were the facts to which he was
pleading guilty and that he was pleading guilty because he did, in
fact, commit those offenses. The Court reviewed with [Appellant]
and confirmed [Appellant’s] understanding of his right to a jury
trial and the Commonwealth’s duty to prove the elements of each
offense beyond a reasonable doubt. [Appellant] confirmed that
he understood the permissible sentencing range for each offense,
which were reviewed with [Appellant] on the record. Additionally,
[Appellant] stated that it was his decision to plead guilty and that
he was not forced, threatened or coerced in any way to plead
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guilty. Based on all of the above, [Appellant’s] plea was found to
be voluntary, knowing and intelligent and [Appellant] was
sentenced pursuant to the negotiated agreement. [Appellant’s]
post-sentence rights were also reviewed with him in a colloquy on
the record. The record clearly demonstrates that [Appellant’s]
guilty plea was knowing, voluntary, and intelligent.
[Appellant] has also failed to establish that any act or
omission by his counsel caused him to enter an unknowing,
unintelligent or involuntary plea. [Appellant] acknowledges that
he was aware of the discrepancies in discovery prior to pleading
guilty and that he raised the issue with his trial counsel prior to
pleading guilty. Despite being aware of these issues, [Appellant]
chose to plead guilty. Furthermore, it appears that the issue was
discussed in detail with [Appellant] by his trial counsel, who
explained to [Appellant] that the discrepancies could be an issue
for cross-examination at trial. [Appellant] still chose to plead
guilty. Any advice by counsel to do so was clearly reasonable
given the evidence against [Appellant] and the lack of a
reasonable basis to seek suppression of the evidence despite the
discrepancies in the discovery. There is no question that multiple
bags of heroin and cocaine were discovered on [Appellant’s]
person and in his vehicle and [Appellant] does not deny this fact
anywhere in his filings. The amount of the heroin and cocaine had
no effect on the charges against [Appellant] or his sentence. The
negotiated plea agreement provided for an aggregate sentence at
the bottom of the standard guideline range for all charges and a
maximum sentence only twice the minimum sentence.
[Appellant] has clearly failed to meet his burden of establishing
that his underlying claims have arguable merit, that any action or
omission by his trial counsel lacked an objective reasonable basis
and that any such action or omission caused [Appellant] to enter
an invalid plea.
(Rule 907 Notice, at 5-7) (footnotes and case citation omitted).
Upon review of the record, we find that it fully supports the PCRA court’s
assessment of Appellant’s ineffective assistance of counsel claims, and we
conclude that counsel’s alleged ineffectiveness did not cause Appellant’s entry
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of an involuntary or unknowing plea. See Jordan, supra at 1049; Orlando,
supra at 1281. Accordingly, we affirm the order of the PCRA court.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/25/2018
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