Com. v. Truett, R., Jr. ( 2023 )

J-S44017-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RICHARD THOMAS TRUETT JR. :
:
Appellant : No. 793 MDA 2022
Appeal from the PCRA Order Entered April 28, 2022
In the Court of Common Pleas of Adams County Criminal Division at
No(s): CP-01-CR-0000435-2021
BEFORE: PANELLA, P.J., McLAUGHLIN, J., and PELLEGRINI, J.*
MEMORANDUM BY McLAUGHLIN, J.: FILED: APRIL 17, 2023
Richard Thomas Truett, Jr. appeals from the order denying his Post
Conviction Relief Act (“PCRA”) petition. See 42 Pa.C.S.A. §§ 9541-9546.
Truett maintains that he is entitled to relief due to ineffectiveness of counsel.
We affirm.
The PCRA court summarized the facts as follows:
On September 28, 2020, [Truett] was operating a motor vehicle
on South Washington Street in Gettysburg Borough in Adams
County, Pennsylvania. Gettysburg Police Officer Shannon Hilliard
conducted a traffic stop of [Truett’s] vehicle based upon a
suspected Motor Vehicle Code Violation. According to Officer
Hilliard, [Truett] appeared to be under the influence of a controlled
substance. [Truett] was transported to Gettysburg Hospital where
a subsequent blood test showed that he had methamphetamine
in his blood - a Schedule II controlled substance for which he did
not have a prescription. Officer Hilliard’s affidavit of probable
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* Retired Senior Judge assigned to the Superior Court.
J-S44017-22
cause and the DL-26 form, [Truett’s] Exhibit 2 [(hereafter,
“consent form”)], note that [Truett] consented to the blood draw.
PCRA Court Opinion, filed April 27, 2022, at 1.
Truett entered a negotiated guilty plea, on July 23, 2021, to driving
under the influence of a controlled substance, second offense. He was
sentenced to a term of incarceration of no less than one year to no more than
five years.
On November 9, 2021, Truett filed a pro se motion to withdraw guilty
plea, which was denied. Approximately one month later, Truett filed the
instant PCRA petition. The court appointed counsel and held an evidentiary
hearing on April 19, 2022, after which it denied the petition. This appeal
followed.1
Truett raises the following issue:
Whether the Post-Conviction Relief court erred by finding prior
counsel acted within the range of competence demanded of
attorneys for criminal cases even though Primary Defense Counsel
failed to discover, raise, and advise Mr. Truett of any possible legal
challenges, and Plea Counsel failed to advise Mr. Truett of the
advantages and disadvantages of entering a plea, thus resulting
in an unknowing plea[?]
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1 The trial court ordered Truett to file a statement of errors complained of on
appeal pursuant to Pa.R.A.P. 1925(b). Truett’s counsel filed the statement
late, but the trial court authored an opinion addressing the substance of
Truett’s claims and urged this Court to excuse Truett’s lateness and consider
the merits of Truett’s claims. See 1925(a) Opinion, filed 6/30/22, at 1. In
criminal cases, remand, not waiver, results from the late filing of a statement.
See Pa.R.A.P. 1925(c)(3). However, where, as here, the trial court addressed
the issues raised in a late-filed statement, no remand is necessary, and this
Court may address the merits of the issues. See Commonwealth v.
Thompson, 39 A.3d 335, 340 (Pa.Super. 2012).
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Truett’s Br. at 4.
On appeal from the denial or grant of relief under the PCRA, our review
is limited to determining “whether the PCRA court’s ruling is supported by the
record and free of legal error.” Commonwealth v. Presley, 193 A.3d 436,
442 (Pa.Super. 2018) (citation omitted).
Truett argues that he entered an unknowing plea on the advice of
ineffective counsel. Truett’s Br. at 13. He claims that he did not sign the
consent form for having his blood drawn, but verbally consented to the blood
draw only after Officer Hilliard allegedly threatened him with imprisonment if
he did not consent. Truett therefore argues that his plea counsel should have
filed a motion to suppress the results of the blood draw and was ineffective
for failing to do so. Id. at 14. According to Truett, because he relied on
counsel’s advice when he entered his guilty plea, his plea was unknowing and
should be withdrawn. Id. at 14-15.
“[C]ounsel is presumed to be effective and the burden of demonstrating
ineffectiveness rests on appellant.” Commonwealth v. Rivera, 10 A.3d
1276, 1279 (Pa.Super. 2010). To obtain relief based on a claim of
ineffectiveness, a petitioner must establish: “(1) his underlying claim is of
arguable merit; (2) counsel had no reasonable basis for his action or inaction;
and (3) the petitioner suffered actual prejudice as a result.” Commonwealth
v. Spotz, 84 A.3d 294, 311 (Pa. 2014). Prejudice in this context means that,
“absent counsel’s conduct, there is a reasonable probability the outcome of
the proceedings would have been different.” Commonwealth v. Velazquez,
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216 A.3d 1146, 1149 (Pa.Super. 2019) (citation omitted). A failure to meet
any of these prongs bars a petitioner from obtaining relief. Commonwealth
v. Sneed, 45 A.3d 1096, 1106 (Pa. 2012).
“[C]laims of counsel’s ineffectiveness in connection with a guilty plea
will provide a basis for relief only if the ineffectiveness caused an involuntary
or unknowing plea.” Commonwealth v. Yager, 685 A.2d 1000, 1004
(Pa.Super. 1996) (en banc). The “voluntariness of [the] plea depends on
whether counsel’s advice was within the range of competence demanded of
attorneys in criminal cases.” Commonwealth v. Lynch, 820 A.2d 728, 733
(Pa.Super. 2003) (quoting Commonwealth v. Hickman, 799 A.2d 136, 141
(Pa.Super. 2002)). “The law does not require that appellant be pleased with
the outcome of his decision to enter a plea of guilty[.]” Commonwealth v.
Diaz, 913 A.2d 871, 873 (Pa.Super. 2006) (citation omitted). “All that is
required is that [appellant’s] decision to plead guilty be knowingly, voluntarily
and intelligently made.” Yager, 685 A.2d at 1004 (citation omitted)
(alteration in original).
Before accepting a plea, the trial court must conduct an on-the-record
inquiry to determine whether the plea is voluntarily and knowingly tendered.
Commonwealth v. Hodges, 789 A.2d 764, 765 (Pa.Super. 2002) (citing
Pa.R.Crim.P. 590(a)). The court must develop a record that affirmatively
shows that the defendant understands: (1) the nature of the charges to which
the defendant is pleading guilty; (2) the factual basis for the plea; (3) the
right to a jury trial; (4) the presumption of innocence; (5) the permissible
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ranges of potential sentences and fines; and (6) that the court is not bound
by the terms of the agreement unless it accepts it. Commonwealth v.
Kelley, 136 A.3d 1007, 1013 (Pa.Super. 2016).
In deciding whether a guilty plea was knowing, intelligent, and
voluntary, a court should consider the totality of the circumstances
surrounding the entry of the plea. Commonwealth v. Allen, 732 A.2d 582,
588-89 (Pa. 1999). Further, a defendant who elects to plead guilty is required
to answer all questions during the plea colloquy truthfully and may not later
assert grounds for withdrawing the plea that contradict the defendant’s
statements during the colloquy. Commonwealth v. Pollard, 832 A.2d 517,
523 (Pa.Super. 2003).
At the PCRA hearing, Truett admitted that he verbally consented to a
blood test. N.T., PCRA Hearing, 4/19/22, at 10. Truett testified that he and
counsel discussed the consent form, but he did not inform counsel of Officer
Hilliard’s alleged threats of imprisonment if he did not consent to the blood
draw:
[Commonwealth:] Okay. Now, did you talk to your attorney about
this?
[Truett:] You mean about -- Yeah.
[Commonwealth:] About the blood draw?
[Truett:] Yes.
[Commonwealth:] Did you talk to him about it?
[Truett:] Yes.
[Commonwealth:] And did you talk to him about -- did you talk to
him about what Officer Hilliard had said to you?
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[Truett:] No, we didn't have a discussion about that.
***
[Commonwealth:] So you did talk to him about the [consent]
form?
[Truett:] Yes, briefly.
[Commonwealth:] But you never talked about Officer Hilliard
telling you he was gonna [sic] take you to jail?
[Truett:] No.
Id. at 10-11.
Truett’s counsel testified at the PCRA hearing that Truett raised three
issues with him during their multiple discussions: the possible unlawful search
of his vehicle, his belief that Officer Hilliard was targeting him, and the initial
reason for the traffic stop. Id. at 16. Counsel did not recall Truett ever
discussing issues surrounding the blood draw or about any threatened
incarceration for refusal to consent. Id. at 16-17, 18-19. Counsel stated that
he reviewed all discovery in the matter, including the consent form. Id. at 19.
He was aware that Truett had not signed it and that instead there was a
notation made by Officer Hilliard below the signature line that read, “Stated
‘I’ll just do the test’” regarding Truett’s verbal consent. Id. Counsel pointed
out that Officer Hilliard wrote in the affidavit of probable cause, as well as in
a more detailed report, that Truett had consented to a blood draw, and that
simply refusing to sign the consent form does not necessarily mean a refusal
of a blood draw. Id.
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Truett’s ineffectiveness claim fails. Truett admitted at the PCRA hearing
that he never raised the issue to his counsel that he verbally consented to the
blood draw after he had been threatened with imprisonment. See N.T. at 10-
11. Indeed, evidence in the record would lead counsel to conclude that Truett
did consent, namely Officer Hilliard’s notations in the affidavit of probable
cause and on the consent form. In addition, the affidavit of probable cause
stated, “[T]he Suspect/Defendant was not advised of any potential criminal
charges for failure to submit to the drawing of blood in conjunction with this
investigation.” Affidavit of Probable Cause, filed 1/19/21, at 2.
Counsel cannot be deemed ineffective for failing to file a suppression
motion on an issue he was unaware of due to Truett’s failure to inform him
about it. Truett’s further argument on appeal that plea counsel ought to have
identified other, unspecified “possible suppression challenges” or “possible
defenses” similarly fails. Truett’s Br. at 14. Truett did not plead, much less
prove, that counsel unreasonably took, or failed to take, a specific action, and
as a result Truett sustained prejudice. The PCRA court properly denied the
PCRA petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 04/17/2023
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