Com. v. Williams, J. ( 2022 )

J-S31045-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JOSHUA WILLIAMS :
:
Appellant : No. 1960 EDA 2021
Appeal from the PCRA Order Entered September 17, 2021
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0008410-2014
BEFORE: BOWES, J., NICHOLS, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED NOVEMBER 15, 2022
Appellant, Joshua Williams, appeals from the order entered in the Court
of Common Pleas of Philadelphia County dismissing his first petition filed
pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. 9541-9546,
after the court determined that Appellant failed to establish that plea counsel
caused him to enter an invalid guilty plea by failing to correct the trial court’s
misstatement of the potential sentence he faced on the charge of first-degree
murder. After careful review, we affirm.
At Appellant’s October 5, 2015, guilty plea hearing, the factual basis for
Appellant’s counseled plea was read into the record by the Commonwealth, as
follows:
On January 1, 2013, at 2:35 a.m., police responded to a
radio call of a shooting at 1650 Pratt Street in the city and county
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* Former Justice specially assigned to the Superior Court.
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of Philadelphia. Upon arrival, they discovered Tyjuan Shields
suffering from a gunshot wound to the head. Shields was
pronounced dead by medics on scene.
The shooting resulted from an altercation between males
who were attending a house party at 1650 Pratt Street, and the
Appellant’s group, who were walking past the party after leaving
a party located at a residence one block away. Earlier that
evening, there was an altercation between the two groups at a
corner bar located near both parties. At that time, Abdal Ala Real
shot a gun. Real was associated with the group attending the
party at 1650 Pratt Street. No one was injured and incident
ended.
A short time later, an altercation occurred between two
women outside the Pratt Street party. People came out of 1650
Pratt to watch just as the Appellant and his friends were walking
by. Someone in the crowd yelled, “He has a gun”, and everyone
ran for cover. Three eyewitnesses, Timothy Scarborough, Rafie
Cooper, and Fred Preston were with Appellant. They observed
Appellant pull out a gun, run up the front steps to 1650 Pratt
Street, and fire three shots into the house that was filled with
people. The decedent was attempting to move some children to
safety when he was struck in the head with a bullet. Three fired
cartridge casings, two (2) bullets, and one (1) bullet jacket were
recovered from the scene. All ballistics evidence came from the
same weapon. No weapon was recovered.
N.T., 10/05/15, at 27-32.
At the hearing, Appellant entered a negotiated guilty plea to Third
Degree Murder, 18 Pa.C.S. § 2502(c), a felony of the first degree, and
Possession of an Instrument of Crime (PIC), 18 Pa.C.S. § 907, a misdemeanor
of the first degree. On the same day, the trial court imposed a sentence of
20 to 40 years’ incarceration.
Through newly retained counsel, Appellant filed a timely “Motion to
Withdraw Guilty Plea” in which he claimed plea counsel had pressured him to
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enter an allegedly involuntary plea as part of a dispute over accumulating
attorney fees. On January 15, 2016, the trial court entered an order denying
Appellant’s motion.
Having filed no direct appeal, Appellant sought reinstatement of his
direct appeal rights nunc pro tunc through a timely PCRA petition prepared
and filed by new privately retained counsel, Appellant’s third counsel in the
relevant timeline.1 On February 6, 2018, the PCRA court, with the agreement
of the Commonwealth, granted the requested relief.
On direct appeal nunc pro tunc, Appellant claimed generally that both
the trial court and plea counsel unduly influenced him to enter an involuntary
guilty plea. In a concise, unpublished memorandum decision, a three-judge
panel of this Court affirmed judgment of sentence, finding, inter alia, Appellant
clearly had waived his particular challenge to the voluntariness of his plea
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1 Notably, as discussed infra, counsel’s PCRA petition did not include an
ineffectiveness claim alleging that plea counsel had contributed to Appellant’s
unintelligent and involuntary plea by failing to advise him at any point during
his representation that his first-degree murder sentencing exposure consisted
of a 35-year mandatory minimum and not, as the trial court misstated in its
oral colloquy, a mandatory life sentence. Such an IAC claim was both ripe for
consideration at this initial PCRA stage and presented what would have
appeared to be Appellant’s best opportunity for achieving withdrawal of his
guilty plea.
Instead, it was not until nearly three years later, at the evidentiary hearing
on this, Appellant’s second PCRA petition (deemed his first, as it followed his
unsuccessful direct appeal nunc pro tunc), that Appellant first alleged that plea
counsel ineffectively failed to advise him accurately about the applicable
mandatory minimum for first-degree murder.
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because he had failed to raise it first with the trial court. Regarding Appellant’s
IAC claim, moreover, the panel held such a claim must await collateral attack
through a PCRA petition. See Commonwealth v. Williams, 761 EDA 2018,
unpublished memorandum, at *1 (Pa. Super. filed July 23, 2019).
On October 8, 2020, Appellant filed a timely PCRA petition raising
several claims of ineffective assistance of plea counsel, and counsel was
appointed. At the PCRA evidentiary hearing of August 17, 2021, Appellant
asserted a new claim not raised in either his petition or at any time previously,
namely, that plea counsel rendered ineffective assistance by failing to correct
the trial court when it twice advised Appellant during the oral colloquy that if
he elected to stand trial and the jury convicted him of first degree murder he
would receive a mandatory sentence of life imprisonment. In fact, because
Appellant was 17 years old at the time of the fatal shooting, the mandatory
minimum sentence of imprisonment for a first degree murder conviction would
have been 35 years, such that he would have been sentenced to 35 years to
life imprisonment. See 18 Pa.C.S. § 1102.1.
Plea counsel testified that he and Appellant discussed several times prior
to the guilty plea hearing that due to Appellant’s juvenile status at the time of
the crime he was subject to a reduced mandatory minimum sentence of 35
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years to a maximum of life for first degree murder. N.T., 8/17/21, at 10.2 It
was counsel’s testimony that Appellant thus understood the possible penalties,
both the minimums and maximums, associated with going to trial, N.T. at 19,
20-21, and he affirmed that they revisited this topic each of the three times
the Commonwealth presented a plea offer over the course of many months.
N.T. at 21.
Plea counsel maintained he informed Appellant that each of the three
plea offers was less than the mandatory minimum that would be imposed
should Appellant be sentenced on a first degree murder conviction. N.T. at
22. Nevertheless, Appellant rejected plea offers of 25 to 50 years and 22 ½
to 50 years in the months leading up to the guilty plea hearing. N.T. at 11.
When plea counsel had conveyed the Commonwealth’s most recent offer of
20 to 40 years made about ten days before the hearing, Appellant, though
still reluctant to plead, accepted the offer. N.T. at 12. It was plea counsel’s
belief that Appellant viewed this offer as a sufficient downward departure from
the previous two offers, which counsel described as simply placing too much
time on Appellant. N.T. at 11.
For his part, plea counsel had considered the Commonwealth’s evidence
against Appellant to be “overwhelming,” N.T. at 11, so much so that he
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2 The judge who presided over both the plea hearing and the PCRA evidentiary
hearing acknowledged that she was not aware during the plea that Appellant
was a juvenile at the time of the shooting because he was 20 years old when
the plea hearing took place. N.T. at 19.
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believed a trial “win” for the defense would have been a guilty verdict on the
charge of third degree murder as opposed to first degree murder. N.T. at 14.
Therefore, plea counsel regarded the negotiated plea offer of third degree
murder carrying a 20 to 40 year sentence to align with what he foresaw as
the best possible outcome of a trial. N.T. at 14.
When confronted with the notes of testimony from Appellant’s guilty
plea hearing, plea counsel admitted he had “no reason” for failing to interject
when the trial court twice misstated Appellant’s sentencing exposure for first
degree murder as a mandatory minimum of life imprisonment. N.T. at 15.
Yet, plea counsel also reiterated on cross-examination that he previously
explained to Appellant in their prior discussions that a 35-year minimum
sentence would apply in his case, although he also conveyed to Appellant that
serving out a life sentence was a possible outcome of receiving a 35 year to
life sentence. N.T. at 17. He likewise denied ever telling Appellant’s family
that Appellant faced mandatory life without parole by choosing to go to trial.
N.T. at 24.
Appellant took the stand and testified that he had met with plea counsel
only two or three times before he pleaded guilty. N.T. at 27. He denied that
plea counsel ever advised him of a 35 to life sentencing exposure for
committing first degree murder as a juvenile, N.T. at 27, and testified, instead
that plea counsel told him only that he faced life without parole if he went to
trial and was found guilty of first-degree murder. N.T. at 28.
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He testified that he knew nothing about a juvenile sentencing exposure
at the time of his plea, and insisted that had he been properly advised, he
would have opted against a plea in favor of trying his case, N.T. at 27,
notwithstanding that his negotiated plea minimum sentence of 20 years was
15 years less than the 35-year mandatory minimum for first degree murder.
N.T. at 35-36.
On cross-examination, Appellant admitted that plea counsel and he
discussed his status as a juvenile at the time of the shooting and that plea
counsel knew he was 17 at the relevant time. N.T. at 29. The Commonwealth
also asked Appellant why he had not raised this ineffectiveness claim three
years earlier in either his post-sentence motion or his first counseled PCRA
petition. N.T. at 38. When Appellant offered a vague answer, the
Commonwealth asked if it was because he knew the claim lacked merit
because plea counsel had informed him of the 35-year minimum, and he
therefore knew of such a minimum but still decided to take the 20 to 40-year
plea offer because it represented the best alternative available to him. N.T.
at 38. On redirect, Appellant answered that first PCRA counsel, alone, decided
what issues to raise. N.T. at 40.
The trial court then addressed Appellant, first questioning him about his
testimony that neither of the two veteran criminal defense lawyers who
represented him during his guilty plea and post-sentence motion to withdraw
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the plea, respectively, informed him that foregoing the negotiated plea would
increase his minimum sentencing exposure from 20 years to 35 years:
Trial Court: So, you are saying that [Plea Counsel] didn’t tell
you that first degree murder was 35 years to
life. He didn’t tell you that?
[Appellant]: No, he didn’t tell me that.
Trial Court: [Post-Sentence Motion Counsel], that lawyer,
when you went to withdraw your guilty plea,
[he] didn’t tell you that the sentence would be
35 years to life – if the judge let you withdraw
your plea, that you would be looking at 35
years, up to life? Thirty-five is the least you can
get. You can get 40, 50, 60, up to life. [Post-
Sentence Motion Counsel] didn’t say to you,
[‘]You know what, if you win this motion, the
least you are going to get is 35 years[’]? [Post-
Sentence Motion Counsel] didn’t tell you that?
[Appellant]: No, we never had a conversation like that, no,
no. He didn’t tell me that.
Trial Court: So you paid him money to file a petition to
withdraw your motion and he never discussed
what the outcome could be if the judge actually
granted your motion? He never told you that?
[Appellant]: No.
N.T. at 46-47.
At the conclusion of oral argument, the PCRA court addressed what it
viewed as Appellant’s lack of credible testimony that it was not until three
years after his guilty plea that he first learned that a 35 year mandatory
minimum for first degree murder applied to his case. Bearing on this
determination was the PCRA court’s skepticism about Appellant’s testimony
that neither plea counsel nor post-sentence motion counsel, both veteran
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attorneys highly specialized in criminal law, advised him of the 35-year to life
sentence he would face if he went to trial. N.T. at 58-59.
Furthermore, the PCRA court found credible plea counsel’s testimony
that he had discussed with Appellant the potential of a 35-year to life sentence
on a guilty verdict for first degree murder should he elect to try his case.
Bolstering this finding, the PCRA court expanded, was Appellant’s own
testimony that plea counsel had told him that he was considered a juvenile at
the time he committed the shooting. Accordingly, by its Order of September
17, 2021, the PCRA court denied Appellant’s petition for relief. This appeal
followed.
Our review of an order denying a PCRA petition is well-settled: “We
must determine whether the PCRA court's ruling is supported by the record
and free of legal error.” Commonwealth v. Johnson, 179 A.3d 1153, 1156
(Pa. 2018) (citation omitted). Furthermore, “[t]he PCRA court's factual
findings and credibility determinations, when supported by the record, are
binding upon this Court. Commonwealth v. Small, 238 A.3d 1267, 1280
(Pa. 2020) (citation omitted).
Where a petitioner's claims raise allegations of prior
counsel's ineffectiveness,
Appellant must plead and prove by a preponderance of the
evidence that: (1) his underlying claim is of arguable merit; (2)
the particular course of conduct pursued by counsel did not have
some reasonable basis designed to effectuate his interests; and,
(3) but for counsel's ineffectiveness, there is a reasonable
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probability that the outcome of the challenged proceeding would
have been different. Failure to satisfy any prong of the test will
result in rejection of the appellant's ineffective assistance of
counsel claim.
Johnson, 179 A.3d at 1158 (citations and quotation marks omitted).
In addition, this Court has provided that:
“The threshold inquiry in ineffectiveness claims is whether
the issue/argument/tactic which counsel has foregone and which
forms the basis for the assertion of ineffectiveness is of arguable
merit....” Commonwealth v. Pierce, 537 Pa. 514, 524, 645 A.2d
189, 194 (1994). “Counsel cannot be found ineffective for failing
to pursue a baseless or meritless claim.” Commonwealth v.
Poplawski, 852 A.2d 323, 327 (Pa. Super. 2004).
Once this threshold is met we apply the “reasonable basis”
test to determine whether counsel's chosen course was designed
to effectuate his client's interests. If we conclude that the
particular course chosen by counsel had some reasonable basis,
our inquiry ceases and counsel's assistance is deemed effective.
If we determine that there was no reasonable basis for counsel's
chosen course then the accused must demonstrate that
counsel's ineffectiveness worked to his prejudice.
Commonwealth v. Barbosa, 819 A.2d81, 83 (Pa. Super. 2003).
To the extent that Appellant claims that counsel's failure to interject
when the trial court misstated his sentencing exposure for first degree murder
constituted ineffective assistance that caused him to render an unknowing and
invalid guilty plea, we note the following:
“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) (quoting Commonwealth v. Hickman,
799 A.2d 136, 141 (Pa. Super. 2002)). “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
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range of competence demanded of attorneys in criminal cases.”
Moser, supra.The standard for post-sentence withdrawal of
guilty pleas dovetails with the arguable
merit/prejudice requirements 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 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. Morrison, 878 A.2d 102, 105 (Pa. Super.
2005) (en banc), appeal denied, 585 Pa. 688, 887 A.2d 1241(2005) (internal citations omitted).
A valid guilty plea must be knowingly, voluntarily and intelligently
entered. Commonwealth v. Pollard, 832 A.2d 517, 522 (Pa.
Super. 2003). 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. Commonwealth v. Hodges, 789 A.2d 764 (Pa. Super.
2002) (citing Pa.R.Crim.P. 590). 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. Commonwealth v. G. Watson, 835 A.2d 786 (Pa.
Super. 2003). 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. Muhammad, 794 A.2d 378,
383–84 (Pa. Super. 2002).
Commonwealth v. Kelley, 136 A.3d 1010, 1012–13 (Pa. Super 2016).
Our courts have required the withdrawal of guilty pleas under
circumstances where a defendant was understandably unaware of, or misled
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about, what maximum sentence could apply should the defendant elect to
stand trial and be found guilty:
In Commonwealth v. Hodges, 789 A.2d 764 (Pa.Super. 2002),
a 16-year-old defendant was permitted to withdraw a negotiated
plea where he pled guilty to avoid the death penalty but was in
fact ineligible for the death penalty because of his age. Similarly,
in Commonwealth v. Lenhoff, 796 A.2d 338 (Pa.Super. 2002),
the defendant was permitted to withdraw a negotiated plea where,
although his sentence was in accord with the plea bargain, he was
told that he faced a 10-year maximum when it was actually less.
At the same time, we do not believe that every mistake in
computing the possible maximum or advising the defendant of the
possible maximum will amount to manifest injustice justifying the
withdrawal of a guilty plea; the mistake must be material to the
defendant's decision to plead guilty. This determination must be
fact- and case-specific. Certainly, if a defendant were to plead
guilty to avoid a death sentence when there is no possibility of a
death sentence, then this mistake would clearly be material. On
the other hand, suppose there were a robbery of five people
together with conspiracy and weapons charges, and the defendant
were told that he faced a maximum sentence of 70 to 140 years
rather than 65 to 130 years. If the plea negotiations resulted in
a sentence of 5 to 10 years, then this mistake would not be
material.
Barbosa, 819 A.2d at 83.
Appellant argues that guilty plea counsel rendered ineffective assistance
by failing to advise him during his oral plea colloquy that the trial court on two
occasions had incorrectly instructed him that he faced mandatory minimum
sentence of life imprisonment if he elected to go to trial and the jury returned
a verdict of guilty on the count of first degree murder. In fact, because
Appellant was 17 years old at the time of the shooting, the mandatory
minimum sentence for first degree murder applicable to him was 35 years’
imprisonment.
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Prior to giving the advisements in question, the trial court had halted its
oral colloquy to address Appellant’s apparent distress over, and disagreement
with, plea counsel’s advice that he accept the Commonwealth’s negotiated
offer of 20 to 40 years’ incarceration in exchange for his plea of guilty to one
count of third degree murder:
Trial Court: The last ground on which you can file an appeal
is if you said later that your attorney was
ineffective in representing you. Are you
satisfied with the advice of your attorney?
[Appellant]: No.
Trial Court: Okay. So we have a problem. What’s going on?
Do you want to talk to him some more? Do you
want to –-
Let me be clear with you, Mr. Williams. You
have an excellent attorney. He’s going to give
you his advice. In the end, you have to decide
whether you take it or not. Do you understand
that?
[Appellant]: Yes.
Trial Court: So you might not be happy with what you’re
hearing him say, but I know he’s an excellent
attorney because he’s been around for years.
So I know that he’s ready. He’s prepared to do
your case. So, I mean, nobody can force you
into pleading guilty. You do what you want. We
have a jury panel next door. I’ll do a jury. It
doesn’t matter to me in the sense that this is
my job. I do it. Nobody’s trying to pressure you
into anything. You have to make the decision in
the end.
So if you want more time to speak to your
attorney, that’s fine. If you want me to put the
jury panel in here, that’s fine too. You have that
right. Do you understand that?
N.T., 10/5/15, at 14-15.
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At this time, plea counsel reiterated that he had offered his
recommendation in favor of pleading after “reviewing everything there is to
see in the case[,]” and he maintained that Appellant made his decision to
plead after listening to both him and, “more importantly, I think, his brother
and his mother that that’s probably the best way to go.” N.T. at 16. Plea
counsel also assured the trial court that were Appellant to decide to go to trial,
he was prepared for that as well. N.T. at 16.
The trial court asked again if Appellant was satisfied that plea counsel
was prepared, ready to defend him at trial, and giving him good advice.
Appellant reiterated his earlier dissatisfaction, saying, “I said no.” N.T. at 17.
Nevertheless, prior to receiving any misstatement from the trial court about
the mandatory minimum sentence he would face for first-degree murder if he
elected a jury trial, he affirmed that he wished to continue with his guilty plea:
Trial Court: All right. What do you want to do? Do you want
to plead guilty?
[Appellant]: I’m [sic] plead guilty.
Trial Court: I can’t hear you.
[Appellant]: I said, yes, I’m going to plead guilty.
N.T. at 17 (emphasis added).
The trial court, however, explained that it needed to develop a record
clarifying why Appellant was not satisfied with plea counsel, so it cleared the
courtroom of everyone except Appellant, defense counsel, Appellant’s family,
and court staff and asked Appellant to specify his complaint about plea
counsel. Appellant answered,
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[Appellant]: I’m unhappy that I was never told – I was told
today that I had to make a decision like this, to
take this plea deal. I was never told that I had
no chance of winning this case or I would have
a strong chance of losing or anything. I had to
make this decision, like, today.
N.T. at 18.
The trial court verified with Appellant that plea counsel had visited him
at prison to discuss his case and consider all offers, which began several
months earlier with an offer of 25 to 50 years’, then 22 ½ to 50, until,
eventually, the present offer of 20 to 40 years. Ten days prior to trial, plea
counsel visited Appellant at the Detention Center, where, he explained to the
court, they discussed the latest offer and Appellant’s chances for prevailing at
trial.
Plea Counsel: And I continued to communicate those
offers to my client and his family. A few
times when I was up at the prison, most
recently, when I got the number down to
20 to 40, I spoke to my client September
25th at the Detention Center where we
talked about the new offer and the
evidence and the difficulty with the case.
And when my client [asks] that there is no
chance to win the case, I told him that my
opinion was that he would not win the
case based on everything that I know
about the case and having tried several
hundred of these cases over the years. So
that’s how we left it on the 25th then. I
told him to continue to think about it.
I’ve been in touch with his family
throughout the last two weeks about this
issue, and then this morning we all spoke
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in the booth again at length. Again, he’s
not thrilled with this decision.
The Court: Right.
Plea Counsel: But that’s where we are, from my
perspective on it.
N.T. at 18-19.
It was at this point in the colloquy that the trial court first issued
erroneous instructions advising Appellant he would receive a mandatory
sentence of life imprisonment if he elected to stand trial and a jury found him
guilty of first degree murder:
The Court: I mean, I think what you need to
understand here, you’re 20, that the
Commonwealth is probably going to go in
on first-degree murder.
Plea Counsel: Yes.
The Court: Is that what the issue is?
Plea Counsel: Yes. Yes.
The Court: I know it’s a shooting. I know somebody
was shot in the head.
Plea Counsel: Yes.
The Court: I mean, this is how much I know. New
Year’s Eve, you know, free for all.
[Appellant] shoots at person running into
house. Innocent person is hit in the head.
It’s called transferred intent. That’s what
I know. Nothing. I get the basics because
I don’t want to know anything before the
trial.
But what I do know from that is that the
Commonwealth will probably ask me to
charge on first-degree murder and then I
always charge on third-degree murder.
That’s what you’re pleading to, if you are,
and this is – if I kept on, if I continued
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with your colloquy, what I’d be telling
you is that if you were to be found
guilty of first-degree murder the
sentence is life without parole. I
cannot change that. The judge has no
authority to change that.
The only person in the room who can get
you out from under first-degree murder, I
mean, aside from if the jury were to find
you not guilty of it, is the government.
The Commonwealth is the only
person in the room who is allowed to
make an agreement with you to plead
to a lesser offense and not serve life.
So that’s what you need to understand.
I’ve seen a lot of 20 year olds sit in that
seat, you know. I’m not telling you what
to do, because I’m in the middle. I am
not on either side. My job as a judge is to
be in the middle. I’m not for you. I’m not
against you. I’m not for or against them.
I know everybody thinks, like, the judge
works for the prosecutor. No. Not in
here.
But you’ve go to understand that I don’t –
I’m not pushy either. You do what you
want in my courtroom. I’m not one of
those telling you you’ve got to plea or
whatever. I’m here. You’re 20 years old.
I’ve seen 20 year olds saying,[‘]no,
I’m going to trial[’], get first-degree
murder, get life, then it’s done and
then they’re crying, walking out the
door.
Your attorney is really experienced. He
knows, but you’ve got to make your
choice.
So you know everything now. It’s not like
you didn’t know there was an offer at all,
because I knew.
N.T. at 20-22 (emphasis added)
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The trial court reviewed with Appellant the ten-month long, court-
supervised, pretrial plea negotiations between plea counsel and the
Commonwealth, and it reminded Appellant that “your attorney was talking to
the DA, and he got them to lower the number. That is the best number you’re
going to get.” N.T. at 22. Plea counsel and the trial court also explained that
the Commonwealth indicated it would oppose defense counsel’s request for a
bench trial and, in so doing, had exercised its right to a jury trial. N.T. at 23.
With that, the trial court asked one last time if Appellant would prefer a
jury trial, and Appellant opted to plead guilty:
Trial Court: You can also have your right to a jury trial.
Do you want that?
[Appellant]: No.
Trial Court: Do you want to continue with the plea?
[Appellant]: Yeah.
Trial Court: Okay. I think we have a record.
N.T., 10/5/15, at 20-22, 23.
While this record shows that the trial court twice misstated that
Appellant faced a mandatory minimum sentence of life imprison if he went to
trial and were convicted of first degree murder, it also substantiates that prior
to receiving this erroneous information from the trial court, Appellant had
already indicated to the court that despite his displeasure with plea counsel
he was staying with his decision to plead guilty. Accordingly, Appellant has
failed to establish that a reasonable probability exists that but for plea
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counsel’s failure to correct the trial court’s subsequent misstatements, he
would not have pleaded guilty.
Moreover, at the PCRA hearing, the PCRA court found credible plea
counsel’s assertion that he had told Appellant on multiple occasions when
discussing the Commonwealth’s several plea offers that a 35-year mandatory
minimum for juveniles would apply in his case. This finding was supported to
some degree by Appellant’s admission at the PCRA hearing that Appellant had
informed him during their discussions that he was a juvenile at the time of the
crime.
In contrast, the PCRA court deemed incredible Appellant’s contention
that he had never once been advised by either of the two highly experienced
criminal defense attorneys who represented him during the guilty plea phase
and post-trial motion phase, respectively, that he faced a 35-year mandatory
minimum rather than a life sentence. Instead, the trial court was of the
opinion that Appellant had made the sound and informed decision to take the
20 to 40-year plea sentence rather than face a mandatory minimum sentence
of 35 years to life associated with a guilty verdict.
We see no reason to disturb the credibility determinations of the court
in this instance where record evidence exists to support it. See Small, supra
(emphasizing we may not undo credibility determinations supported by
evidence). In arriving at this conclusion, we take guidance from this Court’s
decision in Barbosa, supra, in which this Court acknowledged the potential
for manifest injustice whenever there occurs during a plea court’s oral colloquy
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J-S31045-22
a notable exaggeration of a defendant’s sentencing exposure. The chosen
remedy for such a misstatement in Barbosa, however, was to remand for a
PCRA evidentiary hearing, where a record could be developed from which the
PCRA court could then determine whether, inter alia, the defendant was
actually prejudiced by the misstatement. Id.
Here, unlike in Barbosa, we have the benefit of the PCRA evidentiary
hearing record, and from this record we conclude that Appellant has failed to
establish the prejudice prong of the ineffectiveness rubric. Accordingly, we
deem his appeal devoid of merit, and we affirm the order denying PCRA relief.
Order affirmed.
Judge Bowes joins the memorandum.
Judge Nichols concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/15/2022
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