Com. v. Perry, T. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
THOR D. PERRY :
:
Appellant : No. 145 WDA 2020
Appeal from the PCRA Order Entered December 24, 2019
In the Court of Common Pleas of Erie County
Criminal Division at No(s): CP-25-CR-0000562-2017,
CP-25-CR-0000783-2017
BEFORE: OLSON, J., KING, J., and PELLEGRINI, J.*
MEMORANDUM BY KING, J.: FILED SEPTEMBER 15, 2020
Appellant, Thor D. Perry, appeals from the order entered in the Erie
County Court of Common Pleas, which denied his first petition filed pursuant
to the Post Conviction Relief Act (“PCRA”).1 We affirm.
The relevant facts and procedural history of this case are as follows. In
2017, the Commonwealth charged Appellant at docket No. CP-25-CR-000562-
2017 (“docket 562-2017”) with rape, aggravated assault, sexual assault,
terroristic threats, and related offenses. The charges stem from Appellant’s
attack on his then-girlfriend (“Victim”) after Appellant discovered that Victim
had been cheating on him. Subsequently, the Commonwealth charged
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* Retired Senior Judge assigned to the Superior Court.
1 42 Pa.C.S.A. §§ 9541-9546.
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Appellant at docket No. CP-25-CR-000783-2017 (“docket 783-2017”) with
burglary, flight to avoid apprehension, and intimidation of a victim or witness,
in connection with Appellant’s attempt to persuade Victim to drop the charges
against him. Appellant retained private counsel to defend against the charges.
On December 4, 2017, counsel filed a motion to withdraw at Appellant’s
request, stating the attorney/client relationship had deteriorated to the point
where counsel could no longer represent Appellant adequately. Following a
hearing on December 8, 2017, the court granted counsel’s motion to withdraw
and permitted Appellant to retain new private counsel, apply for appointed
counsel, or represent himself. Although Appellant attempted to retain new
private counsel, he was unsuccessful in those efforts. Subsequently, Appellant
rehired original counsel.
On June 1, 2018, Appellant entered an open plea of guilty at docket
562-2017 to aggravated assault and a plea of nolo contendere to sexual
assault. Appellant also entered an open guilty plea at docket 783-2017, to
criminal trespass, which the Commonwealth had added to the criminal
information with the court’s permission. In exchange for Appellant’s pleas,
the Commonwealth agreed to nolle prosse all remaining charges. Appellant
executed a written guilty plea colloquy confirming his pleas were knowing,
intelligent, and voluntary. As well, the court conducted an extensive oral plea
colloquy to confirm the validity of Appellant’s pleas. At the conclusion of the
plea hearing, the court accepted the pleas as knowing, intelligent, and
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voluntary.
On July 17, 2018, the court sentenced Appellant to an aggregate term
of 8 to 16 years’ imprisonment, plus 5 years’ probation. Appellant timely filed
post-sentence motions at docket 562-2017, which the court denied on July
30, 2018. Appellant did not file a direct appeal at either docket number.
Appellant timely filed a pro se PCRA petition at both dockets on July 19,
2019. The court appointed counsel on August 7, 2019, who subsequently filed
a petition to withdraw and Turner/Finley “no-merit” letter.2 On September
16, 2019, the court granted counsel’s petition to withdraw. The court issued
notice of its intent to dismiss the petition without a hearing per Pa.R.Crim.P.
907, on October 11, 2019. Appellant did not respond. The court denied PCRA
relief on December 24, 2019. Appellant timely filed a pro se notice of appeal.3
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2See Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988) and
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).
3 Appellant’s notice of appeal was not docketed until January 24, 2020.
Nevertheless, the notice of appeal is dated January 16, 2020, and the
certificate of service is dated January 17, 2020. Thus, we deem Appellant’s
notice of appeal timely under the prisoner mailbox rule. See Commonwealth
v. Wilson, 911 A.2d 942 (Pa.Super. 2006) (stating document is filed when
pro se prisoner hands it to authorities for mailing).
Additionally, we observe that Appellant filed only one notice of appeal listing
both underlying trial court docket numbers. Appellant’s filing of a single notice
of appeal appears to violate Commonwealth v. Walker, 646 Pa. 456, 185
A.3d 969 (2018), in which our Supreme Court held that an appellant must file
separate notices of appeal from orders which resolve issues arising at separate
trial court docket numbers. Nevertheless, this Court recently held that a
breakdown in the operations of the court occurs when the trial court suggests
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The PCRA court subsequently appointed appellate PCRA counsel. On January
27, 2020, the court ordered Appellant to file a concise statement of errors
complained of on appeal per Pa.R.A.P. 1925(b); Appellant timely complied.
Appellant raises two issues for our review:
Whether the plea proceeding in which…[A]ppellant entered
guilty pleas was rendered invalid in that [Appellant] was
heavily medicated on antipsychotic tranquilizers and he did
not enter the pleas in a sober mind and the [plea c]ourt
failed to engage in a sufficient and searching effort to
evaluate his competency to enter the guilty pleas?
Whether…[A]ppellant was induced into entering the guilty
pleas in that defense counsel failed to engage in a sufficient
and good faith effort to evaluate and present any defense
on his behalf including locating and interviewing certain
witnesses posed by…[A]ppellant?
(Appellant’s Brief at 2).
Our standard of review of the denial of a PCRA petition is limited to
examining whether the record evidence supports the court’s determination
and whether the court’s decision is free of legal error. Commonwealth v. H.
Ford, 947 A.2d 1251 (Pa.Super. 2008), appeal denied, 598 Pa. 779, 959 A.2d
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that a single notice of appeal from an order listing multiple docket numbers is
sufficient to perfect the appeal. See Commonwealth v. Larkin, ___ A.3d.
___, 2020 WL 3869710 (Pa.Super. filed July 9, 2020) (en banc). In those
circumstances, the appellate court can overlook an appellant’s noncompliance
with Walker and decline to quash the appeal. Id. Here, in the order denying
PCRA relief, the order lists both underlying trial court docket numbers, and
the PCRA court advised Appellant that he had 30 days to file “an appeal” to
the Superior Court of Pennsylvania. Under these circumstances, we decline
to quash Appellant’s appeal for any technical noncompliance with Walker.
See id.-4-
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319 (2008). This Court grants great deference to the findings of the PCRA
court if the record contains any support for those findings. Commonwealth
v. Boyd, 923 A.2d 513 (Pa.Super. 2007), appeal denied, 593 Pa. 754, 932
A.2d 74 (2007). We give no such deference, however, to the court’s legal
conclusions. Commonwealth v. J. Ford, 44 A.3d 1190 (Pa.Super. 2012).
Further, a petitioner is not entitled to a PCRA hearing as a matter of right; the
PCRA court can decline to hold a hearing if there is no genuine issue
concerning any material fact, the petitioner is not entitled to PCRA relief, and
no purpose would be served by any further proceedings. Commonwealth v.
Wah, 42 A.3d 335 (Pa.Super. 2012).
In his first issue, Appellant argues he was taking antipsychotic
medication at the time he entered his pleas. Appellant acknowledges that the
trial court asked Appellant if he was under the influence of any medication
that might affect his ability to understand the plea proceedings, but Appellant
suggests the court’s “minimal engagement” did not satisfy the court’s
obligation to confirm Appellant was competent and sober. Appellant asserts
he was heavily medicated when he entered the pleas and the medication
undermined his capacity to enter knowing, voluntary, and intelligent pleas.
Appellant maintains that a known side effect of the medication he took is a
“trance-like stupor.” Appellant insists the court was ostensibly aware of
Appellant’s significant mental health history, so the court’s passing inquiry into
Appellant’s competency was inadequate. Appellant submits his responses to
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the court’s colloquy should not be dispositive because Appellant gave the
answers while he was impaired. Appellant further suggests the court should
have retained an expert to evaluate Appellant’s competency. 4 Appellant
concludes the court failed to perform a “searching and meaningful”
examination of his competency to enter the pleas, and this Court must vacate
the order denying PCRA relief and allow Appellant to withdraw the pleas. We
disagree.
A guilty plea will be deemed valid if the record demonstrates the
defendant had a full understanding of the nature and consequences of his plea
such that he knowingly and intelligently entered the plea of his own accord.
Commonwealth v. Rush, 909 A.2d 805, 808 (Pa.Super. 2006). A defendant
is not required to “be pleased with the outcome of his decision to enter a plea
of guilty[; a]ll that is required is that his decision to plead guilty be knowingly,
voluntarily and intelligently made.” Commonwealth v. Moser, 921 A.2d
526, 528-29 (Pa.Super. 2007). A defendant is presumed to be aware of what
he is doing when he enters a guilty plea, and the defendant bears the burden
to prove otherwise. Commonwealth v. Pollard, 832 A.2d 517, 523
(Pa.Super. 2003). Mere disappointment in the sentence does not constitute
the necessary “manifest injustice” to render the defendant’s guilty plea
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4 Appellant raises this specific claim for the first time on appeal, so we deem
it waived. See Pa.R.A.P. 302(a) (explaining issues raised for first time on
appeal are waived).
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involuntary. Id. at 522. See also Commonwealth v. Kelly, 5 A.3d 370,
377 (Pa.Super. 2010), appeal denied, 613 Pa. 643, 32 A.3d 1276 (2011)
(reiterating principle that courts discourage entry of plea as sentence-testing
device).
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, 765 (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 judge is not bound by the terms
of the agreement unless he accepts the agreement. Commonwealth v.
Watson, 835 A.2d 786, 796-97 (Pa.Super. 2003). “Before accepting a plea
of guilty, the trial court must satisfy itself that there is a factual basis for the
plea. A factual basis for the plea is universally required.” Commonwealth
v. Stenhouse, 788 A.2d 383, 384 (Pa.Super. 2001), appeal denied, 569 Pa.
705, 805 A.2d 523 (2002) (internal citations and quotation marks omitted).
Additionally, “nothing in [Rule 590] would preclude the use of a written
colloquy that is read, completed, signed by the defendant, and made part of
the record of the plea proceedings. This written colloquy would have to be
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supplemented by some on-the-record oral examination.” Pa.R.Crim.P. 590
Comment. See also Rush, supra (holding defendant entered guilty plea
knowingly and voluntarily where he acknowledged in written colloquy that he
understood his rights to trial by jury and presumption of innocence, and he
confirmed during court’s oral examination that he signed written colloquy and
understood its contents).
Instantly, the PCRA court addressed Appellant’s first issue as follows:
A review of the transcript from [Appellant’s] Guilty Plea
Hearing reveals an extensive plea colloquy, on the record,
in addition to a signed Statement of Understanding of Rights
form reviewed by [Appellant] and counsel. Transcript,
Guilty Pleas, pp. 9-10. [Appellant] further denied the need
for explanation of his rights, and his waiver of these rights,
upon entering his guilty plea. Transcript, Guilty Pleas, p.
11. In addition, the court asked [Appellant], “for each of
these counts that you’re entering pleas here today, do you
feel like you’re being pressured or forced or coerced or is
anyone promising you anything to enter the plea?”
[Appellant] responded, “No.” Transcript, Guilty Pleas, p. 14.
[Appellant] stated that he was entering these pleas because
he was in fact guilty of the charges [except sexual assault,
to which he pleaded nolo contendere], that he had enough
time to consider the plea, and that he was satisfied with his
legal representation of the case. Transcript, Guilty Pleas,
pp. 13-14.
[Appellant] also argues that his plea was involuntary
because he was heavily medicated on antipsychotic
tranquilizers. PCRA Petition of July 19, 2019, p. 7. The
court specifically asked [Appellant] “this afternoon are you
under the influence of any form of substance, whether it’s
medication, alcohol, drugs, or anything that would affect
your ability to know what you’re doing?” [Appellant]
responded “I take medication but I’m sober.” The court
asked “what medication do you take, [Appellant]?”
[Appellant] responded “I think its Naproxen.” The court
then asked “are you taking that today?” [Appellant]
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responded “Yeah.” The court asked “does it affect your
ability to know what you’re doing here today?” [Appellant]
responded “No. No, Your Honor.” The court then reiterated
“so, you are entering these [pleas] because, in fact, you’re
guilty, other than Count Eight?” [Appellant] responded
“Yes, Your Honor.” Transcript, Guilty Pleas, pp. 14-15.
Neither [Appellant’s] PCRA [Petition], nor the guilty plea
transcript demonstrate that “manifest injustice” would
result or that the plea was “involuntary or given without
knowledge of the charge.” In fact, [Appellant] engaged in
an extensive colloquy, under oath, given by the court, where
[Appellant’s] answers were definitive. Additionally, a review
of the Sentencing Transcript showed no evidence that
[Appellant] wished to withdraw his plea. Therefore,
[Appellant’s] argument is without merit.
(Rule 907 Notice Opinion, filed 10/11/19, at 2-3) (some internal citations
omitted). The record supports the court’s analysis. See H. Ford, supra;
Boyd, supra.Here, Appellant executed a written plea colloquy confirming his pleas
were knowing, intelligent, and voluntary. See Rush, supra. As well, the
court engaged in an extensive oral plea colloquy, which set forth the factual
bases for Appellant’s pleas, and complied with the requirements of Rule 590.
See Pa.R.Crim.P. 590; Hodges, supra; Stenhouse, supra. Appellant stated
at the plea proceeding that he was taking the medication Naproxen.5
Appellant did not indicate at the plea proceeding that he was under the
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5 According to www.drugs.com, Naproxen is a nonsteroidal anti-inflammatory
drug used to treat pain or inflammation. See
https://www.drugs.com/naproxen.html (last visited 9/2/20). A “trance-like
stupor” is not listed as one of the known side effects. See id.-9-
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influence of any anti-psychotic medication, and he does not identify in his
PCRA petition or on appeal which anti-psychotic medication he was allegedly
taking at the time of his pleas. The totality of the circumstances demonstrates
that Appellant entered his pleas knowingly, intelligently, and voluntarily. See
Rush, supra. Therefore, Appellant’s first issue merits no relief.
In his second issue, Appellant asserts he was steadfast during all
communication with counsel that he was innocent of the crimes charged.
Appellant argues counsel “badgered” him to accept the plea agreement.
Appellant emphasizes the original deterioration of his relationship with
counsel. Appellant contends that after counsel withdrew, the court expected
Appellant to proceed pro se because he did not have new counsel. When
Appellant’s attempts to retain new counsel were unsuccessful due to his
incarceration, Appellant claims original counsel met with one of Appellant’s
family members and “talked his way back” into the case. Appellant insists
counsel coerced him to plead guilty to aggravated assault and nolo contendere
to sexual assault, notwithstanding Appellant’s prior assertions of innocence.
Appellant contends counsel failed to engage in “good faith” plea negotiations
with the Commonwealth. Given the medication that Appellant was taking, and
due to the fact that Appellant had already been incarcerated for 18 months at
the time of the plea proceeding, Appellant avers he reluctantly agreed to
accept the plea deal. Appellant insists counsel did not ever prepare for trial
or interview an eyewitness to the sexual assault. Instead, Appellant submits
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counsel was only interested in pursuing a plea deal. Appellant concludes
counsel unlawfully induced his guilty plea, and this Court must vacate the
order denying PCRA relief and allow Appellant to withdraw his pleas. We
disagree.
Pennsylvania law presumes counsel has rendered effective assistance.
Commonwealth v. Williams, 597 Pa. 109, 950 A.2d 294 (2008). When
asserting a claim of ineffective assistance of counsel, the petitioner is required
to demonstrate: (1) the underlying claim is of arguable merit; (2) counsel had
no reasonable strategic basis for his 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. Commonwealth v.
Kimball, 555 Pa. 299, 724 A.2d 326 (1999). The failure to satisfy any prong
of the test for ineffectiveness will cause the claim to fail. Williams, supra.“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.” Moser, supra at 531.
“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.” Id.Instantly, the PCRA court addressed this claim as follows:
[Appellant] has failed to prove counsel was ineffective by a
preponderance of the evidence, and this claim is also
without merit. A review of the docket reveals that counsel
filed Omnibus Pre-trial Motions at both dockets; a Post-
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Sentence Motion at docket 562 of 2017 was filed eight days
after [Appellant] was sentence[d], and [Appellant]
responded that he was satisfied with his representation
during his guilty plea colloquy. Transcript, Guilty Pleas, p.
14.
(Rule 907 Notice Opinion at 3). The record supports the court’s analysis. See
H. Ford, supra; Boyd, supra.Here, the record shows Appellant retained private counsel shortly after
the Commonwealth filed the charges against him. Counsel filed omnibus pre-
trial motions at both underlying trial court dockets, including a motion for
habeas corpus relief at docket 783-2017. Counsel also pursued DNA testing,
and filed several motions for continuances due to ongoing plea negotiations
with the Commonwealth and while the parties were awaiting the results of the
DNA testing. In December 2017, counsel moved to withdraw at Appellant’s
request, claiming the attorney/client relationship had deteriorated. The court
held a hearing on the motion, during which the topic of the ongoing plea
negotiations came up. Significantly, when the court asked Appellant if he
wanted to proceed to trial instead of entering a plea, Appellant stated: “I
mean, if they give me a good enough plea bargain, I’ll take the plea bargain,
but…” (N.T. Hearing, 12/8/17, at 3). Appellant clarified, however, that he
would not plead guilty to sexual assault because he was innocent of that crime.
(See id.). At the conclusion of the hearing, the court let counsel withdraw
and told Appellant he could retain new private counsel, apply for appointed
counsel, or proceed pro se.
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After Appellant was unsuccessful in his attempts to retain new private
counsel, Appellant rehired original counsel. On June 1, 2018, Appellant
entered an open plea of guilty at docket 562-2017 to aggravated assault and
a plea of nolo contendere to sexual assault. The court explained to Appellant
that by his nolo contendere plea, Appellant was not admitting his guilt to
sexual assault, but he was not contesting the weight of the Commonwealth’s
evidence against him. Appellant also entered an open guilty plea at docket
783-2017, to criminal trespass, which the Commonwealth had added to the
criminal information with the court’s permission. In exchange for Appellant’s
pleas, the Commonwealth agreed to nolle prosse all remaining charges.
Appellant confirmed during the plea hearing that no one had pressured or
coerced him into entering the pleas, and that he was satisfied with counsel’s
representation.
Nothing in the record supports Appellant’s claim that counsel unlawfully
induced him to enter the guilty/nolo contendere pleas. See Moser, supra.Further, the record belies Appellant’s contention that counsel took no action
to prepare for trial and sought only to pursue a plea deal. Although Appellant
claims counsel failed to interview an eyewitness to the sexual assault,
Appellant does not identify this individual by name, indicate if counsel was
aware of this person’s existence, state whether the person was available and
willing to testify in Appellant’s defense, or summarize the substance of this
person’s observations. For all of these reasons, Appellant’s ineffectiveness
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claim fails. See Williams, supra. Accordingly, we affirm the order denying
PCRA relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/15/2020
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