Com. v. Diluzio, R. ( 2023 )

J-S38036-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ROBERT DILUZIO :
:
Appellant : No. 2503 EDA 2022
Appeal from the PCRA Order Entered September 6, 2022
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0008130-2015
BEFORE: LAZARUS, J., KUNSELMAN, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: FILED OCTOBER 30, 2023
Robert Diluzio (Diluzio) appeals from the order entered in the Court of
Common Pleas of Philadelphia County (PCRA court) denying his petition filed
pursuant to the Post-Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546.
Diluzio raises claims of ineffective assistance of counsel 1 in connection with
entry of his negotiated guilty plea to third-degree murder and related
offenses. We affirm.
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 See 42 Pa.C.S. § 9543(a)(2)(ii) (listing ineffective assistance of counsel as
basis for PCRA relief).
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I.
A.
The relevant facts and procedural history of this case are as follows. On
July 2, 2015, at about 1:30 p.m., three men individually approached Diluzio’s
residence to confront him about the robbery of their friend, Daniel Santiago
(Santiago), the night before. The first man requested that Diluzio return
Santiago’s property, but Diluzio refused and slammed the door in his face.
About 25 minutes later, a second man approached Diluzio and asked for the
return of Santiago’s property. Diluzio again refused, this time displaying a
firearm to make his point. A third man approached Diluzio’s residence a short
time later and asked him to return Santiago’s property while Santiago stood
on the sidewalk. In response, Diluzio raised his gun and shot Santiago three
times, killing him.
Diluzio fled from the rear of the property and when confronted by police,
he reached for his gun in the waistband of his pants. Police officers tackled
him and recovered a 9-mm firearm, several rounds of ammunition and $4,167
in cash from his person. Diluzio told police that this was the first time he had
shot anyone. Neighborhood security cameras depicted the shooting in its
entirety. Diluzio was arrested and charged with murder, including murder of
the first-degree, for which he could be sentenced to life without parole, along
with several other charges.
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At the June 21, 2016 guilty plea hearing, Diluzio agreed that he
understood that he was “getting 25 to 50 years in jail” pursuant to the
negotiated deal reached with the Commonwealth. (N.T. Guilty Plea, 6/21/16,
at 3, 5). Diluzio’s written plea colloquy set forth the same period of 25-50
years’ incarceration and stated that all other charges would be dropped. In
the written colloquy, Diluzio affirmed that he was satisfied with the advice of
his attorney and averred that the decision to enter the plea was his alone.
(See Written Guilty Plea Colloquy, 6/21/16, at 3). Diluzio entered a guilty
plea to third-degree murder, robbery, criminal conspiracy, possession of an
instrument of a crime (PIC), firearms not to be carried without a license and
carrying a firearm in public in Philadelphia. The trial court sentenced Diluzio
to a term of 25 to 50 years of incarceration on the third-degree murder
conviction and concurrent terms of incarceration on the remaining offenses.
(See N.T. Guilty Plea, at 19). Diluzio did not file a direct appeal.
B.
Diluzio filed a pro se PCRA petition on March 21, 2017, raising claims of
ineffectiveness of counsel. Appointed counsel filed an amended petition, the
crux of which was that the sentence of 25 to 50 years for third-degree murder
was illegal because it exceeded the statutory maximum term of 40 years’
incarceration. The petition also asserted that Diluzio’s plea was involuntary
because he was not informed of the appropriate statutory maximum sentences
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that he faced. The PCRA court granted the petition as to the sentencing issue
only and scheduled a hearing.
At the outset of the October 10, 2017 hearing, the court agreed that it
had made an error in structuring the aggregate 25-to-50-year sentence
because of the third-degree murder maximum of 40 years. (See N.T. Hearing,
10/10/17, at 2). Counsel for Diluzio made an oral motion to withdraw his
guilty plea, which the court denied. It resentenced Diluzio to a term of 20 to
40 years of incarceration on the third-degree murder charge, followed by a
consecutive term of 2½ to 5 years of incarceration on the firearms not to be
carried without a license and PIC offenses, with the aggregate sentence
remaining at 25 to 50 years. Diluzio filed a post-sentence motion to withdraw
his guilty plea, which the court denied.
Diluzio filed a direct appeal from the judgment of sentence contending
that the trial court erred in denying his pre-sentence and post-sentence
motions to withdraw his guilty plea. This Court affirmed the judgment of
sentence and doing so we determined that Diluzio entered a voluntary plea.
We explained that:
We do not agree with Appellant that the court abused its
discretion by denying his motion to withdraw his plea, even under
the more liberal, pre-sentence standard for withdrawal. The
written plea colloquy makes clear that Appellant was informed
that the agreed-upon, aggregate sentence was 25 to 50 years’
incarceration. (See Written Guilty Plea Colloquy, 6/21/16, at 1).
At the oral plea colloquy, the court again stated that Appellant was
‘getting 25 to 50 years in jail’ in exchange for his plea. (N.T.
Plea/Sentencing, 6/21/16, at 5). Appellant voluntarily and
knowingly accepted this plea agreement, expressing no
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reservations about signing the written plea colloquy, and
exhibiting no hesitation at the oral plea proceeding.
While the court ultimately structured Appellant’s aggregate
sentence in an illegal fashion by imposing 25 to 50 years’
incarceration for his third-degree murder offense, Appellant still
received the agreed-upon aggregate term. Thus, the illegality
of Appellant’s third-degree murder sentence did not render
his negotiated plea agreement unknowing, unintelligent, or
involuntary. Accordingly, the court did not abuse its discretion
by finding there was no ‘fair and just’ reason to allow Appellant to
withdraw his plea. Additionally, Appellant’s sentence is now legal
and remains consistent with the terms of the plea agreement.
(Commonwealth v. Diluzio, 2019 WL 2372949, at *4 (Pa. Super. filed June
5, 2019)) (unpublished memorandum) (citation formatting provided;
emphasis added). Our Supreme Court denied Diluzio’s petition for allowance
of appeal on February 3, 2020.
C.
Diluzio, acting pro se, filed the instant PCRA petition on March 17, 2020.
Appointed counsel filed a Turner/Finley no merit letter2 and was permitted
to withdraw from representation. The PCRA court appointed current counsel,
who filed an amended PCRA petition challenging the effectiveness of counsel
in connection with entry of Diluzio’s guilty plea. The PCRA court issued notice
of its intent to dismiss the petition without a hearing on August 1, 2022. See
Pa.R.Crim.P. 907(1). It formally dismissed the petition on September 6, 2022.
____________________________________________
2 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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Diluzio timely appealed and he and the PCRA court complied with Rule 1925.
See Pa.R.A.P. 1925(a)-(b). It its opinion, the PCRA court stated that “the
plea colloquy, oral and written, conveyed all the required information for the
defendant to make a knowing, intelligent and voluntary decision and the
totality of the circumstances clearly shows Diluzio’s guilty plea met those
requirements.” (PCRA Court Opinion, 12/22/22, 8-9).3
II.
Diluzio contends that plea counsel was ineffective because he provided
erroneous information regarding the appropriate range of sentences on the
third-degree murder charge, rendering his plea invalid. (See Diluzio’s Brief,
at 9, 36-48).4 Diluzio maintains that counsel advised him to enter an
unenforceable contract for a sentence that was illegal and null and void on its
face. (See id. at 39). Diluzio additionally argues that counsel was ineffective
____________________________________________
3 “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. This Court grants great
deference to the findings of the PCRA court if the record contains any support
for those findings.” Commonwealth v. Postie, 200 A.3d 1015, 1022 (Pa.
Super. 2018) (en banc) (citations omitted).
Additionally, “[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. Epps, 240 A.3d 640, 645 (Pa. Super. 2020) (citation omitted). A PCRA
court’s decision to deny a request for an evidentiary hearing will not be
overturned absent an abuse of discretion. See id.4 We address Diluzio’s ineffectiveness claims together for ease of disposition.
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for failing to object to or take action to remedy the defective guilty plea
colloquy. (See id. at 9, 49-53).
“To be entitled to relief on an ineffectiveness claim, a PCRA petitioner
must establish that: (1) the underlying claim has arguable merit; (2) no
reasonable basis existed for counsel’s action or failure to act; and (3) he
suffered prejudice as a result of counsel’s error, with prejudice measured by
whether there is a reasonable probability the result of the proceeding would
have been different.” Epps, supra at 645 (citation omitted). We presume
that counsel has rendered effective assistance. See id. Additionally, counsel
cannot be found ineffective for failing to raise a baseless or meritless claim.
See id.
“[A] criminal defendant’s right to effective counsel extends to the plea
process, as well as during trial.” Commonwealth v. Brown, 235 A.3d 387,
391 (Pa. Super. 2020) (citation omitted). Under the PCRA, “[a]llegations of
ineffectiveness in connection with the entry of a guilty plea will serve as a
basis for relief only if the ineffectiveness caused [the petitioner] to enter an
involuntary or unknowing plea.” Id. (citation omitted). “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. (citations omitted).
Instantly, the record does not support Diluzio’s claims centered on the
invalidity of his plea and initial error concerning his sentence. As detailed
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above, this Court already addressed the merits of Diluzio’s substantive
challenge to the validity of his guilty plea in the context of reviewing his
judgment of sentence on direct appeal. We considered the written and oral
colloquies and found that Diluzio “voluntarily and knowingly accepted this plea
agreement, expressing no reservations about signing the written plea
colloquy, and exhibiting no hesitation at the oral plea proceeding.” (Diluzio,
supra at *4). Because Diluzio’s underlying claim that his plea was involuntary
lacks merit, plea counsel cannot be deemed ineffective based on his entry of
the plea. See Epps, supra at 645.
Further, the record demonstrates that counsel did not advise Diluzio to
enter an illegal plea agreement. Although the trial court did make a mistake
in structuring Diluzio’s sentence with respect to the third-degree murder
charge, the agreed-upon aggregate sentence of 25 to 50 years itself was not
illegal. The trial court’s error in formulating the sentence occurred after
Diluzio entered the plea and was later corrected once the court became aware
of its mistake. This Court then determined that his sentence “is now legal and
remains consistent with the terms of the plea agreement.” (Id.). Thus, no
relief is due.
Order affirmed.
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Date: 10/30/2023
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