Com. v. Andrus, C. ( 2021 )

J-S13039-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CRAIG ANDRUS :
:
Appellant : No. 1250 EDA 2020
Appeal from the PCRA Order Entered May 18, 2020
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0005092-2017
BEFORE: OLSON, J., KING, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: Filed: June 10, 2021
Craig Andrus (Andrus) appeals pro se from the order of the Court of
Common Pleas of Philadelphia County (PCRA court) dismissing his petition filed
under the Post-Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. After
review, we affirm.
I.
On June 4, 2018, Andrus entered a guilty plea to third-degree murder
and persons not to possess firearms.1 The Commonwealth summarized the
facts supporting the plea as follows:
[O]n April the 16th of 2017, [Andrus] was armed with a
firearm on the 3200 Block of F Street in Philadelphia at
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S. §§ 2502(a) and 6105.
J-S13039-21
approximately 1:19 a.m. [H]e has [a] prior conviction for
possession with intent to deliver that makes him ineligible to
possess that firearm and he also does not have a license to carry
a firearm.
While he was on 3200 F Street he encountered the victim,
Nizare Davis … [A]t the time he encountered her, she was in
possession of a 22-caliber revolver with a 2-inch barrel. [T]here
was an exchange of words between the victim and [Andrus] and
[Andrus shot] the victim twice. He fired three shots. Three 32-
caliber fired cartridge casings were recovered from the crime
scene. Two struck [the victim].
***
[Multiple witnesses would testify] that there was a prior
dispute about a half hour before the shooting at a Kellis Bar at the
intersection of Kensington and Allegheny at which time the
victim’s girlfriend, Shamecca Franklin was arguing with [another
woman] and that [Andrus] broke up the argument, essentially.
[D]uring the course of that, [Andrus] put his hands on
Shamecca Franklin to separate her from the other woman. And
Miss Franklin and another witness stated that he put his hands
around her neck and choked her.
[T]hat information got back to [the victim], who was dating
Miss Franklin, and she was angry and upset about that, and
confronted [Andrus] when she saw him at the 3200 Block of F
Street. And that precipitated in the exchange of words that [the
victim told Andrus] she was going to shoot him. She never fired
her gun. But after she said that, he fired at her.
N.T., 6/4/18, at 34-39.
Andrus was offered a closed plea deal to 11½ to 23 years’ imprisonment.
At first, Andrus did not want to plead because he believed he had a defense
that the victim threatened him with a gun before he shot her. Aware of the
plea offer, the trial court reminded Andrus that a justification defense at trial
would require admitting that he illegally possessed a firearm. Additionally, as
-2-
J-S13039-21
part of pleading guilty, the trial court agreed that it take on two pending parole
violations that Andrus was facing with another judge. After a short recess in
which he conferred with a family member, Andrus pled guilty and was
sentenced that same day to 11½ to 23 years’ imprisonment, with the trial
court giving him a consecutive 6 to 23 months for one of the parole violations.
Despite still having counsel, Andrus filed a pro se notice of appeal stating
that he wanted to withdraw his plea. We remanded for the trial court to
determine whether trial counsel had abandoned Andrus. After appointing new
counsel, the trial court directed her to file a Pa.R.A.P. 1925(b) statement.
Rather than do that, however, counsel applied for a remand to withdraw
Andrus’s guilty plea. When asked to show cause why we should not remand,
the trial court responded that remand was unnecessary because it would deny
any motion to withdraw because Andrus’s plea was knowing, voluntary and
intelligent. We, thus, declined to remand and affirmed the judgment of
sentence because Andrus’s sole issue—plea counsel’s effectiveness for not
moving to withdraw the plea—was not cognizable on direct appeal. See
Commonwealth v. Andrus, 1868 EDA 2018 (Pa. Super. 2019) (unpublished
memorandum).
On December 26, 2019, Andrus filed a pro se PCRA petition, asserting
that plea counsel coerced him to plead guilty. Counsel was appointed and
-3-
J-S13039-21
moved to withdraw by filing a Turner/Finley no-merit letter.2 The PCRA
court agreed and issued notice of intent to dismiss under Pa.R.Crim.P. 907.
After Andrus responded, the PCRA court issued an opinion and order
dismissing the PCRA petition and granting counsel’s motion to withdraw.
Andrus then filed this appeal and raises the following two issues:
1. [Did the PCRA court err] by failing to address [Andrus’s] pro
se objections to the Finley letter and the [PCRA court’s] 907
intent to dismiss notice, which deprived [Andrus] of due process
and equal protection of the law?
2. [Did the PCRA court err] by failing to conduct an evidentiary
hearing to ascertain the allegations that trial counsel was
prejudicially ineffective, which undermined the guilty plea?
Andrus’s Brief at 3.3
____________________________________________
2 See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1998);
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1998).
3 “Our standard of review of a [PCRA] court order granting or denying relief
under the PCRA calls upon us to determine whether the determination of the
PCRA court is supported by the evidence of record and is free of legal error.”
Commonwealth v. Pier, 182 A.3d 476, 478 (Pa. Super. 2018) (citation and
quotation marks omitted). “It is well-settled that [t]here is no absolute right
to an evidentiary hearing on a PCRA petition, and if the PCRA court can
determine from the record that no genuine issues of material fact exist, then
a hearing is not necessary.” Commonwealth v. Allison, 235 A.3d 359, 364
(Pa. Super. 2020) (citation and quotation marks omitted). A PCRA court’s
decision to deny a request for an evidentiary hearing will not be overturned
absent an abuse of discretion. Commonwealth v. Mason, 130 A.3d 601,
617 (Pa. 2015).
-4-
J-S13039-21
II.
As Andrus is essentially reasserting that plea counsel was ineffective for
coercing him into pleading guilty rather than investigating and pursuing a
theory of self-defense at trial, we will address the two issues together.
Because his claim involves the effectiveness of counsel, we are guided
by the following principles. We presume counsel is effective and a petitioner
bears the burden to prove otherwise. Commonwealth v. Bennett, 57 A.3d
1185, 1195 (Pa. 2012). To overcome this presumption, a petitioner must
establish that: (1) the underlying claim has arguable merit; (2) counsel lacked
a reasonable basis for his act or omission; and (3) petitioner suffered actual
prejudice. Commonwealth v. Treiber, 121 A.3d 435, 445 (Pa. 2015). To
establish prejudice, a petitioner must demonstrate “that there is a reasonable
probability that, but for counsel’s error or omission, the result of the
proceeding would have been different.” Commonwealth v. Koehler, 36
A.3d 121, 132 (Pa. 2012) (citation omitted). A claim will be denied if the
petitioner fails to meet any one of these prongs. See Commonwealth v.
Jarosz, 152 A.3d 344, 350 (Pa. Super. 2016) (citation omitted).
A criminal defendant has the right to effective counsel during a
plea process as well as during a trial. Allegations of
ineffectiveness in connection with the entry of a guilty plea will
serve as a basis for relief only if the ineffectiveness caused the
defendant to enter an involuntary or unknowing plea. 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.
-5-
J-S13039-21
Commonwealth v. Hickman, 799 A.2d 136, 141 (Pa. Super. 2002)
(citations and quotation marks omitted).
Additionally,
A valid guilty plea must be knowingly, voluntarily and
intelligently entered. [Pennsylvania Rule of Criminal Procedure
590 mandates] that pleas be taken in open court, and require the
court to conduct an on-the-record colloquy to ascertain whether a
defendant is aware of his rights and the consequences of his plea.
Specifically, the court must affirmatively demonstrate the
defendant understands: (1) the nature of the charges to which
he is pleading guilty; (2) the factual basis for the plea; (3) his
right to trial by jury; (4) the presumption of innocence; (5) the
permissible ranges of sentences and fines possible; and (6) that
the court is not bound by the terms of the agreement unless the
court accepts the agreement. This Court will evaluate the
adequacy of the plea colloquy and the voluntariness of the
resulting plea by examining the totality of the circumstances
surrounding the entry of that plea.
Commonwealth v. Kelley, 136 A.3d 1007, 1013 (Pa. Super. 2016) (citations
omitted). Where the record clearly shows the court conducted a thorough
plea colloquy and the defendant understood his rights and the nature of the
charges against him, the plea is voluntary. Commonwealth v. McCauley,
797 A.2d 920, 922 (Pa. Super. 2001).
In this case, the trial court found that plea counsel did not coerce Andrus
into foregoing his self-defense theory and pleading guilty.
[T]he record clearly demonstrates that [Andrus] entered
into a knowing, intelligent, and voluntary plea. [Andrus] reviewed
and signed a Written Guilty Plea Colloquy Form, which covered the
enumerated elements of each of [his] charges, including First -
and Third - Degree Murder, the maximum penalties associated
with each, his absolute right to a jury trial, the presumption of his
innocence, the permissible ranges of sentences and fines, and that
-6-
J-S13039-21
by entering into a plea, he was subject to very limited appellate
rights.
This Court supplemented the Written Guilty Plea Colloquy
Form with an extensive oral colloquy, wherein this Court advised
[Andrus] of the presumption of his innocence, his absolute right
to a jury trial, and the Commonwealth’s burden of proof, and the
permissible range of sentences. N.T. 6/4/2018 at 8-18, 28-32.
This Court further explained that [Andrus] could face
additional jail time for violation of his parole in an unrelated
matter. Id. at 18. The Court also explained that, at trial, he faced
maximum penalties of life imprisonment for First - Degree Murder,
five to ten years of imprisonment for [persons not to possess
firearms], three to seven years of imprisonment for [firearm not
to be carried without a license], and two and one-half to five years
of imprisonment for both [carrying firearms in Philadelphia] and
Possession of an Instrument of Crime (“PIC”). Id. at 5-6. With a
prior record score of three, the standard range of sentences for
[persons not to possess firearms] began at forty-two to fifty-four
months of imprisonment, thirty to forty-two months of
imprisonment for [firearm not to be carried without a license], and
six to sixteen months of imprisonment for [carrying firearms in
Philadelphia] and PIC. Id. at 6-7.
[Andrus] confirmed that he could read, write, and
understand English. Id. at 25. [Andrus] stated that he was
previously diagnosed with [ADHD] and depression and, while in
prison for the previous eleven and one-half months, he had been
prescribed Celexa and Zyprexa, which did not interfere with his
ability to understand the nature of his plea. Id. at 26-27. At the
conclusion of the colloquy, [Andrus] confirmed that he was
prepared to accept responsibility and enter his plea, that he was
pleading guilty because he was in fact guilty, that he was giving
up almost all of his rights to an appeal, that the instant plea
counted as a violation of probation on two unrelated matters, and
that he was giving up his right to a jury trial where the
Commonwealth would have to prove his guilt beyond a reasonable
doubt. Id. at 30-33. Though [Andrus] attests that he killed the
decedent in an act of self-defense, such that a jury would acquit
him if he were permitted to present witnesses and other various
defenses, [Andrus] knowingly gave up his right to present those
defenses upon entering his plea. Id. at 42-43. Ultimately, this
-7-
J-S13039-21
Court imposed the [11 ½ to 23] year sentence that [Andrus]
negotiated, and his claim therefore fails.
PCRA Court Order and Opinion, 5/18/20, at 5-6.
We agree with the PCRA court that a hearing was not required because
the PCRA petition does not raise a genuine issue of material fact. First, as the
PCRA court recognized, Andrus signed a written plea colloquy in which he
acknowledged that he understood the nature of the charges, the permissible
range of sentences for the offenses for which he was charged, and that he
was entering the plea “knowingly, voluntarily, and intelligently.” See Written
Guilty Plea Colloquy, 6/4/18. Andrus affirmed that he was pleading guilty of
his own free will, understood the rights that he was giving up, that he was
satisfied with counsel’s representation and understood the defenses he was
giving up. Id.
Andrus reaffirmed that he was voluntarily pleading guilty on the record
during his colloquy with the trial court, as the trial court reviewed all the
requirements for a valid guilty plea under Pa.R.Crim.P. 590. First, the trial
court reviewed the nature of third-degree murder and persons not to possess
firearms. See N.T., 6/4/18, at 41-42. Second, the trial court reviewed the
factual basis for the charges with Andrus. Id. at 34-39. Third, the trial court
explained to Andrus his right to trial by jury and that he was giving up that
right by pleading guilty. Id. at 31-32. Fourth, the trial court confirmed that
Andrus understood and was giving up his presumption of innocence. Id. at
32-33. Fifth, the trial court reviewed the range of permissible sentences for
-8-
J-S13039-21
the offenses to which he was pleading guilty, even though he was entering a
closed plea with an agreed sentence. Id. at 28-30.
Despite his colloquy, Andrus now claims that his plea was unvoluntary
because his trial counsel did not properly investigate his case and coerced him
into pleading guilty, even though he had a viable theory of self-defense.
However, statements made during a plea colloquy bind a criminal defendant.
See Commonwealth v. Muhammad, 794 A.2d 378, 384 (Pa. Super. 2002).
Consequently, Andrus cannot assert grounds for withdrawing the plea that
contradict statements made at that time. See Commonwealth v. Stork,
737 A.2d 789, 790-91 (Pa. Super. 1999).
Based on our review of the colloquies, Andrus simply decided to avail
himself of the benefit of the closed guilty plea and limit his exposure to
additional incarceration for the pending parole violations with a different
judge. As the PCRA court explained, Andrus’s theory of self-defense
necessitated him in admitting that he possessed a firearm, effectively
conceding his guilt to several firearm offenses. This being the case, Andrus
decided to take the deal rather than risk being convicted of first-degree
murder. For these reasons, Andrus is not entitled to relief and the PCRA court
did not abuse its discretion in dismissing his petition without hearing.
Order affirmed.
-9-
J-S13039-21
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/10/21
- 10 -