Com. v. Harvey, N. ( 2021 )

J-A12023-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
NORMAN HARVEY :
:
Appellant : No. 1015 MDA 2020
Appeal from the PCRA Order Entered July 10, 2020
In the Court of Common Pleas of Dauphin County Criminal Division at
No(s): CP-22-CR-0005198-2015
BEFORE: LAZARUS, J., STABILE, J., and MUSMANNO, J.
MEMORANDUM BY LAZARUS, J.: FILED: OCTOBER 22, 2021
Norman Harvey appeals, pro se, from the order, entered in the Court of
Common Pleas of Dauphin County, denying his petition filed pursuant to the
Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546.1 Upon
careful review, we affirm.
This Court previously set forth the factual and procedural history of this
matter as follows:
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1 Harvey’s pro se notice of appeal states that the appeal is “from the July 10,
2020, Order . . . denying the Defendant Post-Conviction Relief, from the
sentencing Order and Judgment of sentence imposed thereon, dated April 19,
2016 . . ., and the Order denying the Defendant’s Post Sentence Motion[.]”
Notice of Appeal, 8/5/20. While Harvey purports to appeal from the judgment
of sentence and the order denying his post-sentence motions, as well as from
the July 10, 2020 order dismissing his PCRA petition, the appeal properly lies
from the PCRA court’s July 10, 2020 order dismissing the PCRA petition. See
Commonwealth v. Shamberger, 788 A.2d 408, 410 n.2 (Pa. Super. 2001)
(en banc) (correcting caption when appellant misstates order from which
appeal lies).
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In June 2015, Frederick McCarty was arrested after presenting a
forged prescription to a pharmacy. While he was in custody,
McCarty informed store security that his friend “Q” (later identified
as [Harvey]) and another person named Steven Smith were
outside in a vehicle with a glove box full of cocaine, heroin, and
prescriptions. Police were called, and they located the vehicle with
[Harvey] and Smith inside. The vehicle contained a forged
prescription for Oxycodone in Smith’s name, thirteen vials of
cocaine, four bundles of heroin, two Oxycodone tablets, four
Suboxone films, four cell phones, a paper cutter, and sixteen
sheets of white paper with two counterfeit prescriptions on each
page.
[Harvey] was charged with various crimes in connection with this
incident. On April 19, 2016, [Harvey] entered a negotiated guilty
plea to one count of criminal attempt to acquire a controlled
substance by fraud; four counts of conspiracy to acquire a
controlled substance by fraud; three counts of manufacture,
delivery, or possession with intent to manufacture or deliver a
controlled substance; and one count of unlawful possession of
instruments of a crime. The trial court sentenced him on the same
date to an aggregate term of 10 to 23 months in prison in
accordance with the plea agreement. [Harvey] did not file a post-
sentence motion or appeal.
On October 13, 2016, [Harvey] timely filed a petition pursuant to
the [PCRA], alleging, inter alia, that his plea counsel was
ineffective for failing to file a post-sentence motion to withdraw
his guilty plea. Following appointment of counsel and a hearing,
the PCRA court reinstated [Harvey’s] post-sentence and appellate
rights[,] nunc pro tunc[,] and provided [Harvey] with twenty days
from the date of its order in which to file a post-sentence motion.
[Harvey] complied, filing his November 6, 2017 post-sentence
motion to withdraw his guilty plea within 20 days of the October
16, 2017 order authorizing the same. Within the motion, [Harvey]
made a bare assertion of his innocence and contended that he did
not enter into the plea knowingly, intelligently, and voluntarily.
The Commonwealth filed a response, and the trial court denied
[Harvey’s] motion without a hearing on February 13, 2018.
Commonwealth v. Harvey, 439 MDA 2018, at 1-4 (Pa. Super. filed Nov. 9,
2018) (unpublished memorandum decision). Harvey appealed, and this Court
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affirmed his judgment of sentence on November 9, 2018. The Pennsylvania
Supreme Court denied allowance of appeal on May 7, 2019.
On March 27, 2020, Harvey filed a timely pro se PCRA petition; the court
appointed counsel, who filed a motion to withdraw pursuant to
Turner/Finley.2 The PCRA court issued its Pa.R.Crim.P. 907 notice of intent
to dismiss and granted counsel’s motion to withdraw on June 15, 2020. The
court dismissed Harvey’s petition on July 10, 2020. Harvey filed a timely pro
se notice of appeal, followed by a court-ordered Pa.R.A.P. 1925(b) concise
statement of errors complained of on appeal.
In his brief, Harvey raises seventeen issues involving the validity of his
guilty plea, couched in terms of layered claims of ineffectiveness of counsel in
relation to the entry of his guilty plea, his subsequent efforts to withdraw the
plea, and his appeal of the trial court’s denial of his motion to withdraw his
guilty plea. He is entitled to no relief.
In reviewing the denial of PCRA relief, “we examine whether the PCRA
court’s determination is supported by the record and free of legal error.”
Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014) (quotations and
citations omitted).
To establish a claim of counsel’s ineffectiveness, a petitioner must
overcome the presumption that counsel was effective by proving “(1) that the
underlying claim has merit; (2) counsel had no reasonable strategic basis for
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2 See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988);
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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his or her action or inaction; and (3) but for the errors or omissions of counsel,
there is a reasonable probability that the outcome of the proceedings would
have been different.” Commonwealth v. Ousley, 21 A.3d 1238, 1244 (Pa.
Super. 2011) (citation omitted). “The failure to prove any one of the three
prongs results in the failure of petitioner’s claim.” Id.It is well settled that:
a criminal defendant’s right to effective counsel extends to the
plea process, as well as during trial. However, [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
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.
“[T]he law does not require that [the defendant] be pleased
with the outcome of his decision to enter a plea of guilty[;
a]ll that is required is that [his] decision to plead guilty be
knowingly, voluntarily, and intelligently made.”
With regard to an attorney’s duty to investigate, the Supreme
Court has noted that the reasonableness of a particular
investigation depends upon evidence known to counsel, as well as
evidence that would cause a reasonable attorney to conduct a
further investigation. With regard to the voluntariness of a plea,
a guilty plea colloquy must “affirmatively demonstrate the
defendant understood what the plea connoted and its
consequences.” Once the defendant has entered a guilty plea, “it
is presumed that he was aware of what he was doing, and the
burden of proving involuntariness is upon him.” Competence to
plead guilty requires a finding that the defendant comprehends
the crime for which he stands accused, is able to cooperate with
his counsel in forming a rational defense, and has a rational and
factual understanding of the proceedings against him.
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Commonwealth v. Willis, 68 A.3d 997, 1001-02 (Pa. Super. 2013) (citations
omitted). As to prejudice, the petitioner “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. Barndt, 74 A.3d
185, 192 (Pa. Super. 2013) (citation and quotation marks omitted).
Layered claims of ineffectiveness are not wholly distinct from the
underlying claims, because proof of the underlying claim is an
essential element of the derivative ineffectiveness claim. In
determining a layered claim of ineffectiveness, the critical inquiry
is whether the first attorney that the defendant asserts was
ineffective did, in fact, render ineffective assistance of counsel. If
that attorney was effective, then subsequent counsel cannot be
deemed ineffective for failing to raise the underlying issue.
Commonwealth v. Rykard, 55 A.3d 1177, 1190 (Pa. Super. 2012) (internal
citations, quotation marks, and brackets omitted).
Moreover, our case law is clear that the entry of a guilty plea constitutes
waiver of all defenses and defects except claims of lack of jurisdiction, invalid
guilty plea, and illegal sentence. See Commonwealth v. Roden, 730 A.2d
995, 997 n.2 (Pa. Super. 1999) (“Upon entry of a guilty plea, a defendant
generally waives all defects and defenses except those concerning the validity
of the plea, the jurisdiction of the trial court, and the legality of the sentence
imposed.”); see also Commonwealth v. Messmer, 863 A.2d 567, 571 (Pa.
Super. 2004) (“The entry of a guilty plea constitutes a waiver of all defenses
and defects except claims of lack of jurisdiction, invalid guilty plea, and illegal
sentence.”).
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Finally, to be eligible for relief under the PCRA, the petitioner must plead
and prove by a preponderance of the evidence that the allegation of error has
not been previously litigated or waived. 42 Pa.C.S.A. § 9543(a)(3). An issue
has been previously litigated if “the highest appellate court in which the
petitioner could have had review as a matter of right has ruled on the merits
of the issue[.]” 42 Pa.C.S.A. § 9544(a)(2).
Here, all of Harvey’s ineffectiveness claims relate to the validity of his
guilty plea. This Court has previously concluded that Harvey’s plea was
knowingly, intelligently, and voluntarily entered:
[W]e discern no abuse of discretion in the trial court’s conclusion
that [Harvey] entered into the plea knowingly, intelligently, and
voluntarily, and thus he cannot demonstrate the occurrence of a
manifest injustice. The trial court reasoned that the
Commonwealth’s attorney conducted a complete colloquy, which
demonstrated [Harvey’s] understanding of the terms of the plea
agreement, the correctness of the charges, the agreed-upon
sentence, and the constitutional rights he was giving up by
pleading guilty. Trial Court Opinion, 6/21/2018, at 4 (citing N.T.
[Guilty Plea Colloquy], 4/19/2016, at 2). [Harvey] stated that he
and his attorney went over the guilty plea form together. Id. at
5 (citing N.T. [Guilty Plea Colloquy], 4/19/2016, at 3). [Harvey]
further stated that he did not have any questions about any of the
charges, he understood the written colloquy form he signed, and
he did not have any questions about “anything.” Id. (citing N.T.
[Guilty Plea Colloquy], 4/19/2016, at 3-5). The factual basis and
nature of all of the charges to which [Harvey] pleaded guilty were
explained to [him] on the record. Id. (citing N.T. [Guilty Plea
Colloquy], 4/19/2016, at 3-5).
[Harvey] stated under oath that he understood the plea
agreement and the charges to which he was pleading guilty. N.T.,
4/19/2016, at 3-5. He cannot now assert that he did not
understand the plea agreement process, the nature of the
charges, or the factual basis for the charges. See
Commonwealth v. Pollard, 832 A.2d 517, 523 (Pa. Super.
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2003) (“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.”). We agree with
the trial court that [Harvey] has not demonstrated the manifest
injustice necessary to permit him to withdraw the plea after
sentence was imposed. The guilty plea colloquy in this case 4
establishes that [Harvey] willingly and voluntarily agreed to plead
guilty, after negotiating a favorable plea bargain, with full
understanding of the consequences of his decision and of the
rights he would be giving up by pleading guilty.
4 [Harvey] also acknowledged in the written colloquy that
he was satisfied with his attorney’s representation of him,
and his attorney had explained to him all of the charges, the
legal elements of each charge, and the maximum penalties
for each charge. Guilty Plea Colloquy, 4/18/2016, at 2
([pagination] supplied).
Harvey, supra at 6-8. Because counsel cannot be deemed ineffective where
a defendant’s plea was entered knowingly, intelligently, and voluntarily,
Willis, supra, Harvey is entitled to no relief.3
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3 To the extent that Harvey claims that plea counsel was ineffective for failing
to advise him that he would be in violation of his probation if he entered a
guilty plea, this assertion is belied by the record. The guilty plea/sentencing
transcript demonstrates Harvey’s understanding of the fact that a detainer
had been lodged against him in Philadelphia County and that he would be
immediately paroled to that jurisdiction:
[ASSISTANT DISTRICT ATTORNEY ROZMAN]: The defendant will
plead guilty to the listed charges and receive a sentence of 10 to
23 months in Dauphin County Prison. And he’s already served 10
months, so —
THE COURT: Okay. Tell me again because I was —
MR. ROZMAN: 10 to 23 months. An aggregate of 10 to 23 months
with immediate parole to his Philadelphia detainer.
(Footnote Continued Next Page)
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Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/22/2021
____________________________________________
...
MR. ROZMAN: Now, you heard me outline the plea agreement
that you’re going to plead guilty to these charges and receive a
sentence of 10 to 23 months and get immediate parole to this
Philadelphia detainer that is on you right now.
THE DEFENDANT: Yes.
MR. ROZMAN: Do you understand that?
THE DEFENDANT: Yes.
MR. ROZMAN: Are you in agreement with that?
THE DEFENDANT: Yes.
N.T. Guilty Plea/Sentencing, 4/19/16, at 2, 3-4.
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