Com. v. Lukehart, T. ( 2023 )

J-S33035-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TRISTIAN MICHAEL LUKEHART :
:
Appellant : No. 370 WDA 2023
Appeal from the PCRA Order Entered March 23, 2023
In the Court of Common Pleas of Fayette County Criminal Division at
No(s): CP-26-CR-0001642-2019
BEFORE: BENDER, P.J.E., McCAFFERY, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED: October 17, 2023
Appellant Tristian Michael Lukehart files this pro se appeal from the
order of the Court of Common Pleas of Fayette County denying his petition
pursuant to the Post-Conviction Relief Act (PCRA).1 We affirm.
The following factual background was set forth by the prosecution at
Appellant’s guilty plea hearing on twenty-six charges related to a fatal vehicle
accident that occurred on September 20, 2018 near the intersection of Route
51 and Smock Road in Fayette County. On that date, Appellant was driving
southbound on Route 51 in Chevrolet Cobalt with two passengers, Austin
Dudley and Brandon Smith. Notes of Testimony (N.T.), Guilty Plea Hearing,
4/5/21, at 5. Appellant had been smoking marijuana during the trip and was
excessively speeding. Id.
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* Former Justice specially assigned to the Superior Court.
1 42 Pa.C.S.A. §§ 9541-9546.
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After Appellant’s vehicle crested a hill before Smock Road, Appellant’s
vehicle collided with a Nissan Versa containing two individuals, Gerome and
Jacklyn Garbutt, who were traveling northbound and attempting to make a
left turn onto Smock Road. Id. at 6. Accident reconstruction reports revealed
that five seconds before the crash Appellant was driving 117 mph. Id. at 5,
15. Upon impact, Appellant was driving 94 mph. Id. The violent collision
caused the Garbutts’ vehicle to explode and burst into flames. Id. at 6.
Autopsy results revealed that the Garbutts sustained severe blunt force
trauma as a result of the forceful impact of the collision as well as thermal
injuries. Id. at 7-8. In addition to the loss of the Garbutts’ lives, the collision
resulted in serious injuries to Appellant’s passengers and required one of the
men to be lifeflighted away from the scene. Id. at 6. Blood testing confirmed
the presence of marijuana in Appellant’s system at the time of the crash. Id.
On April 5, 2021, the trial court held a hearing at which Appellant
admitted to the aforementioned factual basis for his guilty pleas. Thereafter,
Appellant entered a guilty plea to third-degree murder (two counts), homicide
by vehicle while DUI (two counts), aggravated assault while DUI (four counts),
homicide by vehicle (two counts), aggravated assault by vehicle (four counts),
DUI (two counts), involuntary manslaughter (two counts), recklessly
endangering another person (four counts), driving at unsafe speed, speeding,
careless driving, and reckless driving. In addition to the written plea colloquy
that Appellant signed, the trial court conducted an oral colloquy on the record.
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The trial court deferred sentencing for the preparation of a pre-sentence
investigation. On May 25, 2021, the trial court imposed the parties’ negotiated
sentence of two concurrent terms of eighteen (18) to thirty-six (36) years’
imprisonment on the third-degree murder charges. No further penalties were
imposed on the remaining charges. Appellant did not file a post-sentence
motion or a direct appeal.
On April 11, 2022, Appellant filed a pro se PCRA petition. The PCRA court
appointed counsel, who subsequently filed a Turner-Finley no-merit brief
along with a petition to withdraw,2 asserting that his review of the record in
this case did not reveal any legitimate grounds to argue that Appellant was
entitled to relief pursuant to the PCRA.
On October 24, 2022, the PCRA court filed an order granting counsel’s
petition to withdraw and notifying Appellant of its intent to dismiss the petition
without a hearing pursuant to Pa.R.Crim.P. 907. On November 2, 2022,
Appellant filed a notice of appeal which was docketed at 1310 EDA 2022.
However, on November 9, 2022, Appellant also filed a pro se filing entitled
“Reasons Why the Post Collateral Relief Should Not be Thrown Out.”
On January 17, 2023, this Court filed an order directing Appellant to
show cause as to why the appeal should not be quashed as it was not taken
from a final order. See McCutcheon v. Philadelphia Electric Co., 788 A.2d
345 (Pa. 2002); Pa.R.A.P. 341(b)(1) (defining a final order as an order
____________________________________________
2 See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1998);
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988).
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disposing of all claims and all parties). This Court noted that in a PCRA
proceeding, the final, appealable order is the grant or denial of relief.
Commonwealth v. Perry, 716 A.2d 1259 (Pa.Super. 1998). Thereafter, on
January 27, 2023, this Court discontinued the appeal at 1310 WDA 2022 upon
Appellant’s request.
On March 23, 2023, the PCRA court entered a final order dismissing
Appellant’s petition after indicating that it had considered Appellant’s initial
PCRA petition and his November 9, 2022 filing (“Reasons Why the Post
Collateral Relief Should Not be Thrown Out”).
Appellant filed this timely appeal and complied with the PCRA court’s
direction to file a concise statement of errors complained of on appeal
pursuant to Pa.R.A.P. 1925(b).
Appellant raises the following issues for our review A:
1. Was PCRA counsel ineffective for filing a Finley No-Merit Letter
without ever communicating with Appellant nor answering
written letters asking to fully discuss the undeveloped issues
that were boilerplate raised in the form PCRA Petition that
needed clarification and factual support especially when it
appeared to PCRA counsel that many of the claims were
unintelligible, illustrate a volume of mistakes,
misunderstandings that suggest Appellant may have
underlying mental health problems?
2. Was PCRA Counsel ineffective for failing to investigate and
amend the PCRA Petition with an issue of arguable merit as to
Plea Counsel permitting Appellant to plead guilty to offenses
that required proof that he was the driver of the vehicle when
evidence worthwhile of investigation and corroborative
testimony existed showing that Appellant was not driving the
vehicle at the time of the fatal car crash; and where other
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evidence existed that Appellant’s blood draw was performed
without a warrant or consent?
Appellant’s Brief, at 3.
Our standard of review is as follows:
When reviewing the denial of a PCRA petition, we must determine
whether the PCRA court's order is supported by the record and
free of legal error. Generally, we are bound by a PCRA court's
credibility determinations. However, with regard to a court's legal
conclusions, we apply a de novo standard.
Commonwealth v. Johnson, 139 A.3d 1257, 1272 (Pa. 2016) (quotation
marks and quotations omitted).
In addressing Appellant’s ineffectiveness claims, we are guided by the
following principles:
It is well-established that counsel is presumed to have
provided effective representation unless the PCRA petitioner
pleads and proves all of the following: (1) the underlying
legal claim is of arguable merit; (2) counsel's action or
inaction lacked any objectively reasonable basis designed to
effectuate his client's interest; and (3) prejudice, to the
effect that there was a reasonable probability of a different
outcome if not for counsel's error. See Commonwealth v.
Pierce, 515 Pa. 153, 527 A.2d 973, 975–76 (1987);
Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052,
80 L.Ed.2d 674 (1984). The PCRA court may deny an
ineffectiveness claim if “the petitioner's evidence fails to
meet a single one of these prongs.” Commonwealth v.
Basemore, 560 Pa. 258, 744 A.2d 717, 738 n.23 (2000)....
Because courts must presume that counsel was effective, it
is the petitioner's burden to prove otherwise. See Pierce,
supra; Commonwealth v. Holloway, 559 Pa. 258, 739
A.2d 1039, 1044 (1999).
[Commonwealth v. Natividad, 595 Pa. 188, 207–208, 938 A.2d
310, 321 (2007);] see also Commonwealth v. Hall, 582 Pa.
526, 537, 872 A.2d 1177, 1184 (2005) (stating an appellant's
failure to satisfy any prong of the Pierce ineffectiveness test
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results in a failure to establish the arguable merit prong of the
claim of ineffectiveness).
Commonwealth v. Johnson, 179 A.3d 1105, 1114 (Pa.Super. 2018).
“In the context of a plea, a claim of ineffectiveness may provide relief
only if the alleged ineffectiveness caused an involuntary or unknowing plea.”
Commonwealth v. Orlando, 156 A.3d 1274, 1281 (Pa.Super. 2017).
“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.”
Commonwealth v. Hickman, 799 A.2d 136, 141 (Pa.Super. 2002) (citations
omitted). As such, “to establish prejudice, the defendant 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.
Pier, 182 A.3d 476, 479 (Pa.Super. 2018).
Appellant’s ineffectiveness claims are closely intertwined. Appellant
argues that PCRA counsel was ineffective in failing to properly communicate
with him and fully investigate the claims that Appellant initially raised in his
pro se petition. While Appellant concedes that his pro se PCRA petition
contained numerous frivolous arguments, he asserts that counsel should have
raised two of the claims that had arguable merit and “cull[ed] the nonsensical
parts of the pro se PCRA petition from the parts that would have come together
to make sense.” Appellant’s Brief, at 22.
First, Appellant claims that PCRA counsel should have filed an amended
petition developing his argument that plea counsel was ineffective in failing to
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advise him that he could have raised an affirmative defense that he was not
the driver of the vehicle in question. However, Appellant fails to acknowledge
that in entering his plea, he explicitly admitted multiple times under oath that
he was driving at an excessive speed while smoking marijuana when he
collided with the victims’ vehicle, causing the fatal accident that killed two
individuals and seriously injured his two passengers.
Appellant’s argument conflicts with “[t]he longstanding rule of
Pennsylvania law ... that a defendant may not challenge his guilty plea by
asserting that he lied while under oath, even if he avers that counsel induced
the lies.” Commonwealth v. Pier, 182 A.3d 476, 480 (Pa.Super. 2018)
(quoting Commonwealth v. Turetsky, 925 A.2d 876, 881 (Pa.Super.
2007)).
In conducting the oral colloquy, the trial court explicitly reviewed all
twenty-six charges against Appellant, the facts underlying each charge, and
the penalties that Appellant faced for each charge. A portion of this colloquy
reads as follows:
[Trial Court:] Now you heard the District Attorney recite what
happened on September 20th, 2018, do you admit guilt to
everything that he said happened?
[Appellant:] Yes.
[Trial Court:] Those facts would all constitute the nature of the
charges. At Counts 1 and 2 you are charged with Homicide by
Vehicle under the influence by causing the death of Gerome A.
Garbutt and Jacklyn L. Garbutt. Are you admitting to that?
[Appellant:] Yes.
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[Trial Court:] That is a felony of the 2nd degree punishable by a
maximum term of imprisonment of up to 10 years and a maximum
fine of $25,000 each. Do you understand that?
[Appellant:] Yes.
[Trial Court:] At Counts 3, 4, 5, and 6, you are charged with
aggravated assault by vehicle while driving under the influence.
Are you admitting that you were under the influence of marijuana?
[Appellant:] Yes.
[Trial Court:] And that is negligently causing serious bodily injury
to Jacklyn Garbutt, causing serious bodily injury to Austin Dudley,
causing serious bodily injury to Brandon Smith and causing
serious bodily injury to Gerome Garbutt. Are you admitting to
those?
[Appellant:] Yes.
[Trial Court:] Those are felonies of the 2nd degree as well
punishable by a maximum term of imprisonment of up to 10 years
and $25,000 dollar fines each.
***
[Trial Court:] And lastly at Counts 25 and 26, Murder of The Third
Degree, intentionally, knowingly, recklessly, negligently, causing
the death and resulting in Third Degree Murder of Jacklyn Garbutt
and Gerome Garbutt by travelling 117 miles an hour
approximately 5 seconds prior to the crash impacting the Nissan
Versa at 94 miles an hours taking this action consciously,
knowingly, disregarding the most serious risk of creating and
demonstrating an extreme indifference to the value of human life.
Are you admitting to those 2 charges of Murder of the Third
Degree?
[Appellant:] Yes.
[Trial Court:] It carries with it a maximum term of imprisonment
of up to 40 years. Do you understand that?
[Appellant:] Yes.
[Trial Court:] Those facts all constitute the nature of the charges.
Are you satisfied with the representation that your attorney has
provided?
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[Appellant:] Yes.
[Trial Court:] Do you have any further questions of the Court?
[Appellant:] Not at this time, no.
N.T. at 12-15.
Given Appellant conceded under oath that he was the driver of the
vehicle that caused the fatal accident, he is now bound by those admissions
and cannot claim that counsel should have advised him to go to trial and to
present a theory contrary to his own statements. “A person who elects to
plead guilty is bound by the statements he makes in open court while under
oath and he may not later assert grounds for withdrawing the plea which
contradict the statements he made at his plea colloquy.” Pier, 182 A.3d at
480 (quoting Commonwealth v. Pollard, 832 A.2d 517, 523 (Pa.Super.
2003)). Thus, this ineffectiveness claim does not entitle Appellant to relief.
Second, Appellant contends that PCRA counsel should have argued that
plea counsel was ineffective in advising Appellant to plead guilty when he could
have sought to suppress Appellant’s blood testing results which Appellant
alleged were seized without a warrant.
Appellant makes no attempt in his petition or brief to assert that plea
counsel’s advice to accept the guilty plea was not within the range of
competence demanded of attorneys in criminal cases. Hickman, supra. This
Court has clarified that “a defendant need not be apprised of every possible
suppression motion as a predicate to a finding that the plea was voluntary,
because the decision to seek suppression is left to counsel as a matter of
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strategy in the event a plea bargain is not reached.” Commonwealth v.
Johnson, 179 A.3d 1153, 1160 (Pa.Super. 2018).
Further, although Appellant asserts in hindsight that he should have
chosen to file a motion to suppress his blood results if he had been advised
he could do so, Appellant does not recognize that the key inquiry was whether
he would have chosen to plead guilty or proceed to trial.
We reiterate that “to establish prejudice, the defendant 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. Pier, 182 A.3d 476, 479 (Pa.Super. 2018). “A defendant
who accepts a plea bargain on counsel's advice does not necessarily suffer
prejudice when his counsel fails to seek suppression of evidence, even if it
would be reversible error for the court to admit that evidence.”
Commonwealth v. Johnson, 179 A.3d 1153, 1161 (Pa.Super. 2018)
(quoting Premo v. Moore, 562 U.S. 115, 129, 131 S.Ct. 733, 178 L.Ed.2d
649 (2011) (emphasis added)).
Appellant does not assert that the potential to file a suppression motion
in any way influenced his decision to enter his negotiated guilty plea. Appellant
fails to address the fact that he faced twenty-six separate charges, the
majority of which did not depend on the results of his blood tests. Plea counsel
negotiated a guilty plea in which Appellant would receive two concurrent
sentences of eighteen to thirty-six years’ imprisonment on his two third-
degree murder charges (each of which carried a statutory maximum of forty
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years’ imprisonment). Plea counsel negotiated that Appellant would receive
no further penalty on the remaining twenty-four charges. Appellant has not
demonstrated why he would have rejected that plea agreement and proceeded
to trial on twenty-six charges, on which he could have been given separate
consecutive sentences if convicted at trial.
Accordingly, we conclude that the PCRA court did not err in concluding
that Appellant was not entitled to relief on either of these claims of
ineffectiveness of counsel.
Order affirmed.
10/17/2023
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