Com. v. Chisom, D. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DONDRE M. CHISOM :
:
Appellant : No. 915 MDA 2020
Appeal from the PCRA Order Entered June 11, 2020
In the Court of Common Pleas of Dauphin County Criminal Division at
No(s): CP-22-CR-0005714-2015
BEFORE: LAZARUS, J., McCAFFERY, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED: FEBRUARY 22, 2021
Appellant, Dondre M. Chisom, files this pro se appeal from the order of
the Court of Common Pleas of Dauphin County, which dismissed as meritless
his timely, first petition under the Post Conviction Relief Act (PCRA), 42
Pa.C.S.A. §§ 9541-9546, without a hearing and granted counsel’s
Turner/Finley1 motion to withdraw. Appellant contends dismissal without a
hearing was erroneous where he had alleged counsel failed to file a requested
post-sentence motion and direct appeal. We affirm.
On the night of July 2, 2015, a verbal altercation between Appellant and
34 year-old Christopher Williams, who allegedly cut to the front of a
convenience store checkout line, culminated with Appellant shooting Williams
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* Former Justice specially assigned to the Superior Court.
1Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v.
Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).
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to death in claimed self-defense. Charged with criminal homicide, persons not
to possess firearms, and related offenses, Appellant entered a counseled
negotiated guilty plea to third-degree murder and persons not to possess
firearms in exchange for an agreed-upon sentence of 25 to 50 years’
incarceration and payment of fines totaling $75,000.00. On June 19, 2017,
the trial court imposed an aggregate sentence in accordance with the plea
agreement. Appellant filed no post-sentence motion or direct appeal.
The certified record substantiates that in the interim between sentencing
and the filing of Appellant’s timely pro se PCRA petition, both Appellant and
plea counsel each filed several pertinent motions or correspondences with the
trial court, as well as with one another. On October 19, 2017, counsel
requested transcripts of Appellant’s guilty plea colloquy and sentencing. On
October 25, 2017, Appellant filed a handwritten letter with the trial court
alleging that “[plea counsel] has not filed or conveyed to the Defendant that
she has filed Defendant’s appeals like the Defendant had requested at
plea/sentencing.” Appellant’s Pro Se Correspondence to Trial Court,
10/25/17.
On November 1, 2017, Appellant wrote to counsel expressing, inter alia,
his confusion as to why she did not file his requested post-sentence motions
and his opinion that it was her duty to do so “[a]lthough I attend [sic] on filing
Ineffectiveness of Counsel on you. . . .” Appellant subsequently filed with the
trial court his December 14, 2017 pro se Motion to Modify and Reduce
Sentence, in which he alleged ineffective assistance of plea counsel for failing
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to file both pre-sentence and post-sentence motions and asserted his plea had
been coerced.
On December 18, 2017, plea counsel filed with the court her Petition to
Withdraw as Counsel, citing as grounds Appellant’s allegations of her
ineffective assistance and requesting the court to appoint new counsel. The
court granted plea counsel’s petition to withdraw on February 5, 2018, after
having received Appellant’s pro se PCRA petition and in preparation of
appointing PCRA counsel, as discussed infra.
On December 28, 2017, Appellant filed a timely PCRA petition, his first,
in which he alleged ineffective assistance of plea counsel, the unlawful
inducement of his plea, and newly discovered exculpatory facts. Regarding
counsel’s representation, the petition alleges, “[plea counsel] didn’t file any
post-conviction motions on my behalf in a timely manner when I advise [sic]
her to. I ask the Courts to reinstate my appeal rights to proceed.” Pro Se
PCRA petition, 12/28/18, at 4.
The court appointed counsel and, upon counsel’s motion, granted
counsel 90 days in which to file an amended PCRA petition. Starting on
November 6, 2018, the court granted counsel a series of motions to extend
the deadline for an amended petition to allow for a court-appointed
investigator to locate, subpoena, and interview witnesses for purposes of
preparing an amended petition.
On January 30, 2019, the PCRA court appointed new counsel to replace
outgoing appointed counsel, who had accepted new employment with the
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State of Pennsylvania. Counsel filed a motion for extension of time to prepare
an amended petition, and the court entered an order granting the motion and
setting a petition deadline of June 4, 2019.
The court extended that deadline after counsel indicated he was
awaiting new information from the investigator and had just recently obtained
relevant documentation. On August 8, 2019, Appellant filed with the court a
copy of a letter he addressed to appointed counsel asking why counsel had
yet to contact him since his appointment to the case eight months earlier.
On January 23, 2020, appointed counsel filed his Motion to Withdraw
from Representation and accompanying “no-merit” letter, in which he
addressed each of the claims raised in Appellant’s pro se PCRA petition and
deemed them meritless. Counsel framed his discussion by noting challenges
to a guilty plea are limited to claims implicating the legality of the sentence,2
the validity of the plea, and the jurisdiction of the court.
In light of this recognized group of viable claims, PCRA counsel rejected
Appellant’s first claim, which counsel identified as an allegation that plea
counsel ineffectively failed to file a requested post-sentence motion.3 Because
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2 While a challenge to the discretionary aspects of one’s sentence also
represents a viable claim after a court exercises sentencing discretion in an
open plea, the present matter involves a closed plea which precluded such
discretion.
3 See infra, where we consider whether Appellant’s pro se claim directed at
plea counsel’s failure to file “post conviction motions” was sufficiently broad
to include the failure to file a direct appeal.
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the negotiated plea comprised a prescribed, agreed-upon sentence of 25 to
50 years’ incarceration, which was within lawful maximums, counsel
concluded that the sentence was susceptible to neither a discretionary aspects
of sentence challenge4 nor a legality of sentence challenge under the
incontrovertible facts.
With respect to the validity of Appellant’s plea, PCRA counsel pointed
to both Appellant’s written plea colloquy, where Appellant confirmed in writing
his entry of a voluntary and knowing plea to a sentence of “25 to 50 years,”
and his plea hearing, where he openly contemplated going to trial, was
permitted consultation with his family members and counsel, and thereafter
verified with the court that after full and free reflection on his options he was
accepting the Commonwealth’s closed plea deal. Given this record, counsel
posited, Appellant could not plead and prove sufficient facts to undermine the
validity of his plea.
Finally, counsel deemed unfounded Appellant’s newly-discovered
evidence claim that an exculpatory and consequential videotape unavailable
at the time of his plea was now available for the first time. On this point,
counsel observed that the notes of testimony from Appellant’s guilty plea
hearing explicitly noted the availability of the video at that time, see N.T.,
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4 To the extent Appellant’s pro se petition cited the court’s failure to consider
the mitigating circumstances associated with the brain surgery he received
three weeks prior to the homicide, PCRA counsel noted that the court’s
acceptance of the closed plea agreement on sentencing precluded the exercise
of sentencing discretion to consider mitigating circumstances.
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6/19/17, at 16, and nothing in either Appellant’s PCRA petition or the record
suggested otherwise. Counsel, therefore, concluded Appellant’s claim was
belied by clear facts of record.
Based on its review of counsel’s “no-merit” letter and the record as a
whole, the PCRA court concurred with PCRA counsel. Accordingly, the court
granted counsel’s motion to withdraw, and it issued notice under Pa.R.Crim.P.
907 of its intent to dismiss Appellant’s PCRA petition without a hearing. Court’s
Notice Pursuant to Rule 907, 4/22/20, at 1-6.
On June 8, 2020, Appellant filed a response claiming he had not been
apprised that the sentences of 20 to 40 years for third degree murder and 5
to 10 years for persons not to possess could be run consecutively to form a
25 to 50 year sentence. The PCRA court found this claim baseless and entered
an order dismissing Appellant’s PCRA petition. This timely appeal followed.
Appellant raises the following two issues for our review (verbatim):
1. Whether trial court error [sic] in decision [sic] asserting trial
counsel was not ineffective?
2. Whether the state and Federal Courts[’] actions in similar cases
have created a precedent that the State Courts should follow
in ineffective assistance of counsel claims?
Appellant’s brief, at 3.
We review an order denying collateral relief under the PCRA to
determine whether evidence of record supports the findings of the PCRA court
and whether its legal conclusions are free from error. Commonwealth v.
Mitchell, 105 A.3d 1257, 1265 (Pa. 2014). “The PCRA court's credibility
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determinations, when supported by the record, are binding on this Court;
however, we apply a de novo standard of review to the PCRA court's legal
conclusions.” Id., quoting Commonwealth v. Roney, 79 A.3d 595, 603 (Pa.
2013).
In this case, the PCRA court dismissed Appellant's petition without a
hearing. There is no absolute right to an evidentiary hearing. See
Commonwealth v. Springer, 961 A.2d 1262, 1264 (Pa. Super. 2008). On
appeal, we examine the issues raised in light of the record “to determine
whether the PCRA court erred in concluding that there were no genuine issues
of material fact and in denying relief without an evidentiary hearing.” Id.Appellant's pro se petition essentially requested nunc pro tunc
reinstatement of his right to file post-sentence motions, which, if necessary,
would have the effect of preserving his right to file a direct appeal challenging
a denial of said motions. Specifically, the petition alleged, inter alia, that plea
counsel was ineffective for failing to file requested “post-conviction motions”
in a timely manner. The PCRA court, the Commonwealth, and appointed PCRA
counsel all construed Appellant’s claim to confine itself solely to counsel’s
failure to file a requested post-sentence motion.
Because we discern from the record that Appellant’s claim is so
confined,5 we agree with their consensus that Appellant failed in his obligation
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5 Our review of the record satisfies us that Appellant’s pro se petition’s
reference to counsel’s failure to file requested “post-conviction motions”
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to demonstrate his petition raised a genuine issue of material fact that
required an evidentiary hearing. That is to say, unlike the instance where
counsel fails to file a direct appeal when requested to do so by a client, which
constitutes per se ineffectiveness, see Commonwealth v. Lantzy, 736 A.2d
564, 572 (Pa. 1999), counsel's failure to file a post-sentence motion, even if
requested to do so, is not per se ineffectiveness. See Commonwealth v.
Reaves, 923 A.2d at 1119, 1129-1131 (Pa. 2007) (post-conviction petitioner
required to establish actual prejudice where counsel's alleged deficiency
stemmed from failure to move for reconsideration of sentence);
Commonwealth v. Liston, 977 A.2d 1089, 1092 (Pa. 2009) (clarifying
Reaves holding that failure to file post-sentence motions “does not fall within
the limited ambit of situations where a defendant alleging ineffective
assistance of counsel need not prove prejudice to obtain relief”).
Instead, a PCRA petitioner alleging trial counsel's ineffectiveness for
failure to file a post-sentence motion must satisfy the three-pronged test for
ineffectiveness. Reaves, supra. A petitioner, therefore, bears the burden of
pleading and proving that trial counsel's failure to file a post-sentence motion
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pertained only to desired post-sentence motions and not to a failure to file a
direct appeal as well. In reaching this conclusion, we find dispositive the
language used in Appellant’s pro se petition itself, which conspicuously fails to
assert plainly and simply that counsel failed to file a direct appeal as
requested. We note additionally, however, that Appellant’s November 1, 2017
letter to plea counsel asks why counsel failed to file post-sentence motions as
requested, and does not mention the failure to file a direct appeal. Therefore,
Appellant is entitled to no relief on his claim, raised for the first time on appeal,
that plea counsel ineffectively failed to file a direct appeal.
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prejudiced him; namely, that had counsel filed the post-sentence motions, the
sentencing court would have granted them. See Liston, supra. Appellant
did not meet that burden, nor did he raise a genuine issue on this claim.
Here, Appellant's claims before the PCRA court did not address why the
trial court would have granted a motion to reconsider Appellant's sentence.
Although Appellant expressed displeasure with the consecutive nature of his
sentences in his objections to the PCRA court's Rule 907 notice, he offered no
reason why the trial court would have granted relief on this basis where the
aggregate sentence amounted to the very 25 to 50 year sentence to which
Appellant had specifically agreed in the closed plea deal.
Moreover, the consecutive nature of a sentencing scheme is seldom the
basis for finding a substantial question that the trial court acted outside
sentencing norms or contrary to the Sentencing Code. See Commonwealth
v. Moury, 992 A.2d 162, 171-172 (Pa. Super. 2010) (sentencing court has
discretion to impose sentences consecutively or concurrently, and challenges
to this exercise of discretion do not raise a substantial question except in
extreme circumstances). As Appellant offered no explanation as to how his
consecutive sentences supported reconsideration of his punishment, he
deserves no relief on this argument.
Appellant also was unable to demonstrate below that counsel induced
him to plead guilty where he verified both in his written and oral plea
colloquies that his plea was not the product of undue influence or coercion but
was, instead, entered into knowingly, intelligently, and freely. Appellant is
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bound by the statements he made under oath during his plea. See
Commonwealth v. Pollard, 832 A.2d 519 (Pa.Super. 2003) (holding
statements under oath confirming desire to plead guilty are binding).
Likewise, for the same reasons expressed by the PCRA court below, we
find Appellant’s ineffectiveness claims based on allegedly after-discovered
evidence in the form of a videotape and on counsel’s failure to raise mitigating
factors at sentencing have no basis in relevant facts. With regard to the video,
the notes of testimony from Appellant’s guilty plea hearing, as referenced
supra, established that the video was known and available to Appellant during
the hearing. For that matter, he altogether fails to argue specifically how the
video would have benefitted him even if counsel had secured it for the court’s
review. In much the same way, Appellant develops no meaningful argument
demonstrating how mitigating sentencing factors were at all relevant where
he had entered a closed plea foreclosing the court’s exercise of sentencing
discretion.
For the foregoing reasons, we discern no error with the PCRA court’s
order granting PCRA counsel’s motion to withdraw from representation and
dismissing Appellant’s petition as devoid of merit.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 02/22/2021
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