Com. v. Seth-Murray, O. ( 2021 )

J-S06039-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
OSCAR SETH-MURRAY :
:
Appellant : No. 1332 EDA 2020
Appeal from the PCRA Order Entered May 27, 2020
In the Court of Common Pleas of Delaware County Criminal Division at
No(s): CP-23-CR-0004511-2018
BEFORE: PANELLA, P.J., NICHOLS, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: Filed: March 25, 2021
Oscar Seth-Murray (Seth-Murray) appeals the order of the Court of
Common Pleas of Delaware County (PCRA court) denying his petition for post-
conviction relief.1 He argues that the PCRA court erred in denying his petition
without a hearing because there remained factual questions as to whether,
prior to the entry of a guilty plea, his counsel had adequately advised him of
available defenses to the charge of aggravated assault with serious bodily
injury. We affirm.
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 Post–Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541–9546.
J-S06039-21
I.
Seth-Murray was charged with numerous felony counts arising from the
shooting of two victims who sustained serious gunshot wounds. With the aid
of counsel, Seth-Murray agreed to a negotiated guilty plea. As to Count 1
(attempted homicide), he was to receive a prison term of 15-40 years. As to
Count 3 (aggravated assault with serious bodily injury), he was to receive a
term of 7-15 years, concurrent to Count 1. As to Count 6 (possession of a
firearm prohibited), he was to receive a term of 5-10 years, again concurrent
to Count 1. The statutory definitions of all these offenses were enumerated
and cited in the charging document.2
At the sentencing hearing, plea counsel advised the trial court that she
had been working on Seth-Murray’s case “for quite some time,” often
conferring not only with her client, but also members of his family. Plea
counsel further stated that she and Seth-Murray had spoken at length about
his remorse and acceptance of responsibility for the charged criminal acts.
Seth-Murray was ultimately sentenced pursuant to the terms of the
negotiated plea agreement, receiving an aggregate term of 15-40 years. He
____________________________________________
2The criminal information listed each of the respective statutes and statutory
definitions for these counts. Of relevance to this appeal, the information
specified in Count 3 that the offense of aggravated assault, as defined in 18
Pa.C.S. § 2702(a)(1), requires proof that the defendant “attempts to cause
serious bodily injury to another, or causes such injury intentionally, knowingly
or recklessly under circumstances manifesting extreme indifference to the
value of human life.”
-2-
J-S06039-21
indicated that he understood the terms of the sentence, that he had no
questions about the terms, and that he had completed a post-sentence rights
form. See Sentencing Transcript, 6/20/2019, at pp. 10-12. He also
completed a guilty plea statement enumerating the rights he was waiving
pursuant to the plea, and confirming that plea counsel had explained all the
elements of the subject offenses. Seth-Murray did not file a direct appeal.
Within a year from the date that his judgment of sentence became final,
Seth-Murray timely filed his first PCRA petition, pro se. He claimed that his
guilty plea on the aggravated assault count was involuntary because his
counsel had failed to notify him of the intent element of the offense – that he
had “recklessly” attempted to cause “bodily injury or serious bodily injury.” 3
Seth-Murray asserted, with little factual detail or legal support, that he would
not have entered his plea had he known of those definitions because he was
innocent of the crime for lack of having the requisite intent.
PCRA counsel was duly appointed to represent him, and shortly
thereafter, counsel sought to withdraw from the case, filing a “no-merit letter”
containing the reasons why he could not proceed further.4 The PCRA court,
____________________________________________
3 Seth-Murray also claimed in his PCRA petition that his sentence was
excessive and that the court lacked jurisdiction to sentence him. Those claims
were abandoned in this appeal and need not be discussed further.
4 See Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988);
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988).
-3-
J-S06039-21
in turn, filed a notice of intent to dismiss the petition without a hearing, stating
in relevant part that the record conclusively established that Seth-Murray’s
guilty plea was knowing and voluntary.
Seth-Murray did not file a response to the PCRA court’s notice of intent
to dismiss. After the time for a response had elapsed, the PCRA court
permitted counsel to withdraw and summarily denied the petition. Seth-
Murray timely appealed,5 and both he and the PCRA court complied with
Pa.R.A.P. 1925.6
II.
A.
Seth-Murray contends that his claim of ineffectiveness was erroneously
denied without a hearing because there remained questions of fact as to
whether plea counsel’s failure to advise him of potential defenses rendered his
plea involuntary. The narrow claim posed in his PCRA petition only concerned
the aggravated assault count. He argued that he did not knowingly plead
guilty because he was never informed that the offense requires proof of a
conscious, deliberate or reckless attempt to cause injury to the victim.
____________________________________________
5 Seth-Murray submitted his notice of appeal to prison officials within 30 days
from the date that his petition was denied, making the notice timely filed by
operation of the prisoner mailbox rule. See Thomas v. Elash, 781 A.2d 170,
175 (Pa. Super. 2001).
6 The Commonwealth did not file an appellate brief in this case.
-4-
J-S06039-21
Such claims are cognizable under the PCRA. See 42 Pa.C.S.
§ 9543(a)(2)(ii); see also Commonwealth v. Lynch, 820 A.2d 728, 731–
32 (Pa. Super. 2003) (“If the ineffective assistance of counsel caused the
defendant to enter an involuntary or unknowing plea, the PCRA will afford the
defendant relief.”).7
If a PCRA petition is summarily denied, then we must “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.”
Commonwealth v. Burton, 121 A.3d 1063, 1067 (Pa. Super. 2015) (quoting
Commonwealth v. Springer, 961 A.2d 1262, 1264 (Pa. Super. 2008)); see
also Commonwealth v. Morris, 684 A.2d 1037, 1042 (Pa. 1996)
(evidentiary hearings are not required “when there are no disputed factual
issues”).
Generally, claims of ineffective counsel must satisfy a three-part test:
(1) the underlying claim has arguable merit; (2) no reasonable
basis existed for counsel’s actions or failure to act; and (3)
petitioner suffered prejudice as a result of counsel’s error such
that there is a reasonable probability that the result of the
proceeding would have been different absent such error. Counsel
is presumed to be effective, and [the petitioner] bears the burden
of pleading and proving each of the three factors by a
preponderance of the evidence.
____________________________________________
7 Our standard of review of orders denying PCRA relief is “whether the
determination of the PCRA court is supported by the evidence of record and is
free of legal error.” Commonwealth v. Garcia, 23 A.3d 1059, 1061 (Pa.
Super. 2011). The PCRA court’s legal conclusions are reviewed de novo. See
Commonwealth v. Hart, 199 A.3d 475, 481 (Pa. Super. 2018).
-5-
J-S06039-21
Commonwealth v. Tharp, 101 A.3d 736, 747 (Pa. 2014) (citations omitted).
The right to the effective assistance of counsel in criminal cases extends
to the plea stage of the proceedings. See Commonwealth v. Wah, 42 A.3d
335, 338-39 (Pa. Super. 2012). A claim of ineffectiveness as to the entry of
a guilty plea is grounds for PCRA relief only if counsel’s conduct rendered the
plea unknowing or involuntary. Id. Where a plea is entered on the advice of
counsel, the voluntariness to enter the plea necessarily hinges on whether
counsel performed within the range of competence demanded of attorneys in
criminal cases. See Commonwealth v. Yager, 685 A.2d 1000, 1003–04
(Pa. Super. 1996).
In this context, the petitioner must “show that there is a reasonable
probability that, but for counsel’s errors, he would not have pleaded guilty and
would have insisted on going to trial.” Commonwealth v. Rathfon, 899
A.2d 365, 369–70 (Pa. Super. 2006) (quoting Hill v. Lockhart, 474 U.S. 52,
59 (1985)). “The reasonable probability test is not a stringent one”; it merely
refers to “a probability sufficient to undermine confidence in the outcome.”
Id. at 370 (quoting Commonwealth v. Hickman, 799 A.2d 136, 141 (Pa.
Super. 2002)); see also Commonwealth v. Barndt, 74 A.3d 185, 191–92
(Pa. Super. 2013) (same).
B.
In the present case, there is no question of fact as to whether Seth-
Murray’s plea counsel misadvised him on the elements of or the available
-6-
J-S06039-21
defenses to the count of aggravated assault. Seth-Murray himself stated on
the record at sentencing that he was satisfied by the performance of plea
counsel. He told the sentencing court that he understood all the rights he
would be waiving as a condition of his plea, and he averred that counsel had
explained the available trial defenses. Moreover, in his signed guilty plea
statement, Seth-Murray initialed the paragraph stating that his lawyer had
explained to him “the elements of [the charged offenses] and the possible
penalties for them.” He also initialed the paragraph providing that counsel
had discussed with him all available defenses.
Seth-Murray is bound by these sworn statements, including his
assurances that he had been fully advised of all statutory elements and
defenses concerning the offenses he pleaded guilty to. See Commonwealth
v. Willis, 68 A.3d 997, 1009 (Pa. Super. 2013) (affirming denial of PCRA claim
that plea was involuntary for lack of capacity where petitioner swore to the
contrary at his colloquy: he was “bound by these statements, which he made
in open court while under oath, and he may not now assert grounds for
withdrawing the plea which contradict the statements.”).
Since Seth-Murray’s statements at sentencing directly contradict his
grounds for withdrawing his plea, there existed no genuine issue of material
fact as to plea counsel’s effectiveness. Accordingly, the PCRA court did not
err in denying Seth-Murray’s ineffectiveness claim without an evidentiary
hearing.
-7-
J-S06039-21
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/25/21
-8-