Com. v. Alejo, A ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
ABEL ALEJO :
:
Appellant :
:
: No. 2623 EDA 2022
Appeal from the PCRA Order Entered March 11, 2021
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0007118-2017
BEFORE: OLSON, J., STABILE, J., and McLAUGHLIN, J.
MEMORANDUM BY OLSON, J.: FILED OCTOBER 12, 2023
Appellant, Abel Alejo, appeals from the order entered on March 11,
2021, which dismissed his petition filed under the Post Conviction Relief Act
(PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.
On January 22, 2018, Appellant entered an open guilty plea to
attempted murder and possessing an instrument of crime. During the
colloquy, the Commonwealth summarized the factual basis for Appellant’s
plea:
On April [30, 2017,] after a verbal dispute with [A.P.
(hereinafter “the Victim”), who was Appellant’s wife,] inside
their [Philadelphia] residence[, Appellant] grabbed a knife
from the kitchen and started chasing the [Victim].
When he reached her, [Appellant] began the brutal assault
by stabbing her multiple times on her face and arms and
threatened her by stating, “I’m going to kill you, you bitch.
And if I get deported will kill your mom and dad too.”
[Appellant] and the [Victim’s] five minor children were
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present during the assault, and they begged [Appellant] to
end the assault.
[The Victim] was finally transported to Temple Hospital where
she required surgery as – after sustaining seven stab wounds
. . . : one to the right side of her face; two [to] the left side
of her face; two to her left arm; and two to her right arm.
N.T. Plea Hearing, 1/22/18, at 8-9.
Appellant agreed to the Commonwealth’s factual recitation and the trial
court accepted his plea. Id. at 10 and 12. On April 9, 2018, the trial court
sentenced Appellant to serve an aggregate term of 15 to 30 years in prison
for his convictions. N.T. Sentencing, 4/9/18, at 29. The trial court denied
Appellant’s timely post-sentence motion on May 23, 2018; Appellant did not
file a direct appeal to this Court. See N.T. Post-Sentence Motion Hearing,
5/23/18, at 11.
On March 25, 2019, Appellant filed a timely, pro se PCRA petition. The
PCRA court appointed counsel to represent Appellant during the proceedings
and counsel filed an amended petition on Appellant’s behalf. As is relevant to
the current appeal, within the amended petition, Appellant claimed that his
plea counsel was ineffective and that this ineffectiveness caused him to enter
an involuntary plea. Specifically, Appellant claimed that counsel failed to
inform him that his statutory maximum sentence for attempted murder was
40 years in prison, as the Commonwealth was claiming that Appellant inflicted
serious bodily injury on the Victim. Amended PCRA Petition, 9/6/20, at 2; see
also 18 Pa.C.S.A. § 1102(c) (“a person who has been convicted of [attempted
murder] . . . where serious bodily injury results may be sentenced to a term
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of imprisonment which shall be fixed by the court at not more than 40 years.
Where serious bodily injury does not result, the person may be sentenced to
a term of imprisonment which shall be fixed by the court at not more than 20
years”). According to Appellant, had he “known or been warned that he could
receive a maximum of 40 years [for attempted murder], he would not have
taken an open guilty plea.” Amended PCRA Petition, 9/6/20, at 3.
On January 25, 2021, the PCRA court provided Appellant with notice
that it intended to dismiss the petition in 20 days, without holding an
evidentiary hearing, as the claims raised in the petition were meritless. PCRA
Court Notice, 1/25/21, at 1; see also Pa.R.Crim.P. 907(1). The PCRA court
finally dismissed Appellant’s petition on March 11, 2021. PCRA Court Order,
3/11/21, at 1. Following the nunc pro tunc restoration of Appellant’s PCRA
appellate rights, Appellant filed a timely notice of appeal. Appellant raises two
claims on appeal:
1. Did the PCRA court err by dismissing [Appellant’s] petition
without an evidentiary hearing as there was a material issue
of fact as to whether or not Appellant’s guilty-plea counsel
properly advised [Appellant] of the possible sentences and
the ability to contest the finding of serious bodily injury
before his pleading guilty?
2. Should this case be remanded for Appellant’s counsel to
amend the PCRA petition for a claim asking for restoration of
direct appeal rights?
Appellant’s Brief at 2.
First, Appellant claims that the PCRA court erred when it dismissed his
ineffective assistance of counsel claim without holding an evidentiary hearing.
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“We review a ruling by the PCRA court to determine whether it is
supported by the record and is free of legal error. Our standard of review of
a PCRA court's legal conclusions is de novo.” Commonwealth v. Cousar,
154 A.3d 287, 296 (Pa. 2017) (citations omitted).
To be eligible for relief under the PCRA, the petitioner must plead and
prove by a preponderance of the evidence that his conviction or sentence
resulted from “one or more” of the seven, specifically enumerated
circumstances listed in 42 Pa.C.S.A. § 9543(a)(2). One of these statutorily
enumerated circumstances is the “[i]neffective assistance of counsel which, in
the circumstances of the particular case, so undermined the truth-determining
process that no reliable adjudication of guilt or innocence could have taken
place.” 42 Pa.C.S.A. § 9543(a)(2)(ii).
Counsel is presumed to be effective and “the burden of demonstrating
ineffectiveness rests on [A]ppellant.” Commonwealth v. Rivera, 10 A.3d
1276, 1279 (Pa. Super. 2010). To satisfy this burden, Appellant must plead
and prove by a preponderance of the evidence that:
(1) his underlying claim is of arguable merit; (2) the
particular course of conduct pursued by counsel did not have
some reasonable basis designed to effectuate his interests;
and, (3) but for counsel’s ineffectiveness, there is a
reasonable probability that the outcome of the challenged
proceedings would have been different.
Commonwealth v. Fulton, 830 A.2d 567, 572 (Pa. 2003). As this Court has
explained:
A claim has arguable merit where the factual averments, if
accurate, could establish cause for relief. See
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Commonwealth v. Jones, 876 A.2d 380, 385 (Pa. 2005)
(“if a petitioner raises allegations, which, even if accepted as
true, do not establish the underlying claim . . . , he or she
will have failed to establish the arguable merit prong related
to the claim”). Whether the facts rise to the level of arguable
merit is a legal determination.
The test for deciding whether counsel had a reasonable basis
for his action or inaction is whether no competent counsel
would have chosen that action or inaction, or, the alternative,
not chosen, offered a significantly greater potential chance of
success. Counsel’s decisions will be considered reasonable if
they effectuated his client's interests. We do not employ a
hindsight analysis in comparing trial counsel's actions with
other efforts he may have taken.
Prejudice is established if there is a reasonable probability
that, but for counsel’s errors, the result of the proceeding
would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the
outcome.
Commonwealth v. Stewart, 84 A.3d 701, 707 (Pa. Super. 2013) (some
quotations and citations omitted). “A failure to satisfy any prong of the test
for ineffectiveness will require rejection of the claim.” Id.“A criminal defendant has the right to effective counsel during a plea
process as well as during trial.” Commonwealth v. Hickman, 799 A.2d 136,
141 (Pa. Super. 2002). Yet, where the ineffectiveness of counsel is claimed
in connection with the entry of a guilty plea, a petitioner may only obtain relief
where “counsel’s deficient stewardship resulted in a manifest injustice, for
example, by facilitating [the] entry of an unknowing, involuntary, or
unintelligent plea.” Commonwealth v. Moser, 921 A.2d 526, 530 n.3 (Pa.
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Super. 2007) (en banc) (citations and quotations omitted). As we have
explained:
once a defendant has entered a plea of guilty, it is presumed
that he was aware of what he was doing, and the burden of
proving involuntariness is upon him. Therefore, where the
record clearly demonstrates that a guilty plea colloquy was
conducted, during which it became evident that the
defendant understood the nature of the charges against him,
the voluntariness of the plea is established.
Commonwealth v. Stork, 737 A.2d 789, 791 (Pa. Super. 1999) (quotations,
citations, and corrections omitted), quoting Commonwealth v. Myers, 642
A.2d 1103, 1105 (Pa. Super. 1994). “To prove prejudice, [an] appellant must
prove he would not have [pleaded] guilty and would have achieved a better
outcome at trial.” Commonwealth v. Fears, 86 A.3d 795, 807 (Pa. 2014)
(quotation marks and citations omitted).
Moreover, “[a] defendant is bound by the statements which he makes
during his plea colloquy.” Commonwealth v. Lewis, 708 A.2d 497, 502 (Pa.
Super. 1998) (citation omitted). “A defendant may not assert grounds for
withdrawing the plea that contradict statements made when he pled guilty.”
Id.Finally, a PCRA petitioner is not automatically entitled to an evidentiary
hearing on his petition. A PCRA petition may be dismissed without a hearing
if the PCRA court “is satisfied from [its review of the petition] that there are
no genuine issues concerning any material fact and that the [petitioner] is not
entitled to post-conviction collateral relief, and no purpose would be served
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by any further proceedings.” Pa.R.Crim.P. 907(1). However, when the PCRA
petition raises material issues of fact, the PCRA court “shall order a hearing.”
Pa.R.Crim.P. 908(A)(2). Thus, “[t]o obtain reversal of a PCRA court's decision
to dismiss a petition without a hearing, an appellant must show that he raised
a genuine issue of fact which, if resolved in his favor, would have entitled him
to relief, or that the court otherwise abused its discretion in denying a
hearing.” Commonwealth v. Paddy, 15 A.3d 431, 442 (Pa. 2011)
(quotation marks and citations omitted).
On appeal, Appellant essentially claims that he was unaware of the fact
that the statutory maximum sentence for his attempted murder conviction
was 40 years in prison – and Appellant claims that, “had [he] known or []
been warned that he could receive a maximum of 40 years [in prison for
attempted murder], he would not have taken an open guilty plea.” Amended
PCRA Petition, 9/6/20, at 3; Appellant’s Brief at 5-10. Appellant’s claim fails,
as it is belied by the record.
At the outset, Appellant signed and dated a written guilty plea form,
where Appellant acknowledged that he faced up to 40 years in prison for
attempted murder and an additional term of five years in prison for possessing
an instrument of crime. See Written Guilty Plea Form, 1/22/18, at 1. Within
the written guilty plea form, Appellant also declared:
I admit I committed the crime(s) of ATT Murder F1, PIC M1,
and I want to plead guilty. My lawyer told me what the
elements of the crime(s) are that the District Attorney must
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prove to convict me. I know I can go to jail for up to 45 years
and be fined $35,000.00 for the crimes I committed.
Id. at 2.
Further, the trial court held a comprehensive guilty plea hearing, where
the following exchange between the trial court and Appellant took place:
[Trial Court]: . . . you’re pleading guilty to attempted murder
as a felony of the first degree and possession of an
instrument of crime as a misdemeanor of the first degree.
Combined these could subject you to a period of incarceration
of up to 45 years and fines of up to $35,000. Do you
understand that?
[Appellant]: Yes.
N.T. Guilty Plea, 1/22/18, at 8.
As we have explained, “[a] defendant is bound by the statements which
he makes during his plea colloquy;” “[a] defendant may not assert grounds
for withdrawing the plea that contradict statements made when he pled
guilty.” Lewis, 708 A.2d at 502. Here, Appellant admitted that he knew he
faced a statutory maximum term of 40 years in prison for his attempted
murder conviction and a total sentencing exposure of 45 years in prison for
his open guilty plea. See Written Guilty Plea Form, 1/22/18, at 1-2; N.T.
Guilty Plea, 1/22/18, at 8. Appellant cannot collaterally attack his plea by
claiming that he was actually lying during his colloquy with the trial court.
See Lewis, 708 A.2d at 502. As such, Appellant’s claim on appeal necessarily
fails.
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Within Appellant’s brief to this Court, Appellant also requests that we
give him “the chance to possibly amend [his PCRA petition] to include a claim
for restoration of direct appeal rights.” Appellant’s Brief at 10. Appellant did
not include this claim in his PCRA petition and Appellant does not claim that
PCRA counsel was ineffective for failing to raise this claim in the amended
petition. Therefore, this claim on appeal is waived. Commonwealth v.
Jones, 912 A.2d 268, 278 (Pa. 2006) (“an issue is waived where it was not
presented in the original or amended PCRA petition below”).
Order affirmed. Jurisdiction relinquished.
Date: 10/12/2023
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