Com. v. Jones, C. ( 2019 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CLIFFORD N. JONES :
:
Appellant : No. 3696 EDA 2017
Appeal from the PCRA Order February 28, 2017
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0008508-2008
BEFORE: OTT, J., KUNSELMAN, J., and COLINS*, J.
MEMORANDUM BY COLINS, J.: FILED AUGUST 29, 2019
Appellant, Clifford N. Jones, appeals from the order entered
February 28, 2017, dismissing his petition filed under the Post Conviction
Relief Act (“PCRA”)1 without a hearing. We affirm.
This Court previously set forth the relevant facts and procedural history
of this case in its decision for Appellant’s direct appeal “from [his] judgment
of sentence entered following his convictions of involuntary deviate sexual
intercourse, unlawful contact with a minor, endangering the welfare of
children, corruption of minors and assault. 18 Pa.C.S.A. §§ 3123, 6318, 4304,
6301 and 2701, respectively.” Commonwealth v. Jones, No. 1551 EDA
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1 42 Pa.C.S. §§ 9541–9546.
* Retired Senior Judge assigned to the Superior Court.
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2009, unpublished memorandum at 1 (Pa. Super. filed August 6, 2010) (some
formatting). For the convenience of the reader, we note:
On May 14, 2008, then ten year old Complainant, S.R., resided
with her mother, brother and sister and Jones, her mother’s
boyfriend, who Complainant called ‘Pop-Pop.’ On that date, upon
returning home from school, Complainant entered the bedroom
her mother shared with Jones when she saw Jones rubbing baby
oil on his penis. Jones grabbed Complainant by the arm, forced
her to bend over a computer chair, and he placed his penis inside
her rectum. When Complainant’s siblings yelled for her Jones
stopped his assault whereupon Complainant escaped and Jones
left the house. Complainants’ brother asked her what was wrong
at which time she reported him and revealed that Jones had anal
sex with her for three years. When Complainant’s mother
returned home the children reported the assault to her. A rectal
and vaginal swab was performed on Complainant and found
positive for the presence of semen. Complainant related that over
the three year period of Jones’s sexual assaults, he would threaten
to hit her if she reported the incidents but that he typically gave
her money. Complainant and her mother related that they
believed Jones to be HIV positive. Jones fled the jurisdiction and
was subsequently extradited from Baltimore, Maryland. A DNA
sample was taken from Jones and was compared to the samples
taken from Complainant and found to be a positive match. . . .
Prior to trial, Jones indicated that he wanted to plead guilty to the
above-listed crimes. On December 18, 2008, the trial court
engaged in a thorough oral colloquy about his desire to enter a
guilty plea.
Id. at 1-2 (citation and internal brackets omitted). The relevant portion of
that oral colloquy consisted of the following:
[THE COURT:] I understand you wish to plead guilty today
pursuant to what’s called an open guilty plea, meaning that other
than the charges to which you’re pleading guilty, there’s no
agreement for an agreed upon recommendation for sentencing.
Do you understand?
[APPELLANT]: Yes, ma’am. . . .
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THE COURT: Are you pleading guilty today of your own free
will?
[APPELLANT]: Yes, ma’am.
THE COURT: Has anyone forced you or threatened you to
plead guilty in any way?
[APPELLANT]: No, ma’am. . . .
THE COURT: Have you gone over this written guilty plea
colloquy form with your attorney?
[APPELLANT]: Yes, ma’am.
THE COURT: You agree this document states what your rights
are and the rights you’re giving up by pleading guilty today?
[APPELLANT]: Yes, ma’am.
THE COURT: Have you signed this document today in court
of your own free will?
[APPELLANT]: Yes, ma’am. . . .
THE COURT: Have you ever been treated for a mental illness?
[APPELLANT]: Yes, ma’am.
THE COURT: Are you currently receiving mental health
treatment?
[APPELLANT]: Yes, ma’am.
THE COURT: Are you currently taking psychiatric medication?
[APPELLANT]: Yes, ma’am.
THE COURT: Are you fully able today to understand why
you’re here to discuss this case with your attorney and to make
decisions about how to proceed?
[APPELLANT]: Yes, ma’am. . . .
THE COURT: Are you satisfied with your lawyer?
[APPELLANT]: Yes, ma’am.
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THE COURT: Has your lawyer explained to you the charges
you’re pleading guilty along with the elements of those offenses
and the maximum penalties that you face?
[APPELLANT]: Yes, ma’am.
THE COURT: Has he advised you that there’s a ten year
mandatory sentence with regard to the charge of involuntary
deviate sexual intercourse?
[APPELLANT]: Yes, ma’am.
THE COURT: And he also advised you of the maximum for
that charge can be up to 40 years?
[APPELLANT]: Yes, ma’am. . . .
THE COURT: Do you wish to speak any further with your
attorney privately before we proceed?
[APPELLANT]: No, ma’am.
N.T., 12/18/2018, at 4-8.
Jones also filled out a written colloquy regarding the entry of the
guilty plea. The trial court accepted Jones’s plea and postponed
sentencing so that evaluation regarding whether Jones is a
sexually violent predator (“SVP”) could be conducted.
Prior to sentencing, Jones filed a motion seeking to withdraw his
guilty plea. A hearing on this motion convened on April 3, 2009,
at the conclusion of which the trial court denied Jones’s motion.
Jones was subsequently found to be an SVP and the trial court
sentenced him to an aggregate term of 23½ to 47 years of
incarceration.
Jones, No. 1551 EDA 2009, at 2-3. On August 6, 2010, this Court affirmed
Appellant’s judgment of sentence. Id. at 1.
“Appellant’s first [PCRA p]etition was filed on March 10, 2011. On
May 3, 2012[,] the PCRA [p]etition was granted, and by agreement of the
Commonwealth Appellant’s right to file a Petition for Allocatur to the
Pennsylvania Supreme Court was reinstated.” PCRA Court Opinion, filed June
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25, 2018, at 1-2. On June 1, 2012, Appellant filed his petition for allowance
of appeal to the Supreme Court of Pennsylvania, which was denied on
March 1, 2013.
On November 25, 2013, Appellant filed a timely, pro se PCRA petition,
and, on June 20, 2016, PCRA counsel filed an amended petition, alleging that
Appellant’s guilty plea was unlawfully induced and that his trial counsel was
ineffective for failing to investigate his case and his “health status” and for
coercing him to accept a guilty plea when he had advised trial counsel that he
did not want to do so. Amended PCRA Petition, 6/20/2016, at 5-7
(unpaginated) §§ II.-III. On January 27, 2017, the Commonwealth filed a
motion to dismiss, and, on January 31, 2017, the PCRA court entered a notice
of intent to dismiss all claims without a hearing pursuant to Pa.R.Crim.P. 907
(“Rule 907 Notice”). On February 10, 2017, although he was still represented
by counsel, Appellant pro se filed objections to the Rule 907 Notice. On
February 28, 2017, the PCRA court dismissed Appellant’s petition.
On June 19, 2017[,] the [PCRA c]ourt received in chambers a
Notice of Appeal Nunc Pro Tunc dated June 13, 2017 from
Appellant claiming that PCRA counsel advised him that she was
going to file an appeal, but she failed to do this. Appellant’s notice
does not appear on the docket. PCRA counsel . . . followed with
an Amended Petition under Post Conviction Relief Act setting forth
her reasons for failing to file Appellant’s appeal from the
February 28, 2017 dismissal of the PCRA Petition. Reasons for
failure to file the appeal included counsel’s health issues and an
over-burdened work schedule. On October 24, 2017[,] the
Commonwealth agreed that Appellant’s appellate rights should be
reinstated nun pro tunc effective November 14, 2017. This timely
appeal followed on November 15, 2017.
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PCRA Court Opinion, filed June 25, 2018, at 2.2
Appellant presents the following issues for our review:
I. Whether the PCRA court erred in denying [Appellant]’s PCRA
[p]etition without an evidentiary hearing to determine whether
[Appellant] entered a lawful guilty plea.
II. Whether the [PCRA] court erred in denying without an
evidentiary hearing the PCRA petition alleging trial counsel was
ineffective.
Appellant’s Brief at 8 (trial court’s answers omitted).
“We review the denial of PCRA relief to decide whether the PCRA court’s
factual determinations are supported by the record and are free of legal error.”
Commonwealth v. Medina, 209 A.3d 992, 996 (Pa. Super. 2019) (quoting
Commonwealth v. Brown, 196 A.3d 130, 150 (Pa. 2018)).
Appellant contends that “[t]he PCRA [c]ourt erred in denying [his] PCRA
[p]etition without an evidentiary hearing . . . to determine whether
[Appellant]'s guilty plea was [unlawfully] induced and whether counsel was
ineffective[,] . . . because it caused [Appellant] to enter an involuntary or
unknowing guilty plea.” Appellant’s Brief at 18-19, 21. Appellant argues that
his trial counsel failed to investigate his case or his mental health issues,
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2 Appellant filed his statement of errors complained of on appeal on
December 23, 2017. The PCRA court entered its opinion on June 25, 2018.
The PCRA court appointed new PCRA counsel for Appellant on September 14,
2018, and permission was granted for new counsel to file a supplemental
concise statement of errors, which PCRA counsel did on December 12, 2018.
The PCRA court entered a supplemental opinion on December 21, 2018.
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coerced him into pleading guilty, and never explained to him the implications
of his guilty plea. Id. at 21. Appellant urges this Court to conclude that “there
is a clear showing of actual prejudice as a result of counsel’s ineffectiveness[,]”
because, “[h]ad [Appellant] been able to try the matter, a jury may have
returned a verdict of not guilty.” Id. at 22.3
To the extent that Appellant is arguing that his guilty plea was
involuntary, unknowingly entered, and unlawfully induced, this claim is
waived, because it could have been challenged as part of his direct appeal,
yet he failed to do so. See 42 Pa.C.S. § 9544(b) (“for purposes of [the PCRA],
an issue is waived if the petitioner could have raised it but failed to do so
before trial, at trial, during unitary review, on appeal or in a prior state
postconviction proceeding.”).
If, instead, Appellant’s issue is that his trial counsel was ineffective for
coercing him into pleading guilty, this challenge is belied by the record.
[C]ounsel is presumed to be effective.
To overcome this presumption, a PCRA petitioner must plead and
prove that: (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.
A failure to satisfy any of the three prongs of this test requires
rejection of a claim of ineffective assistance.
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3 Appellant does not elaborate in his brief as to why the jury would have
acquitted him nor does he state that there was a reasonable probability of this
different outcome. See Appellant’s Brief at 22.
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Medina, 209 A.3d at 1000 (internal brackets, citations, and quotation marks
omitted) (some formatting). The right to effective assistance of counsel
extends to the plea process. Commonwealth v. Wah, 42 A.3d 335, 338-39
(Pa. Super. 2012).
The longstanding rule of Pennsylvania law is 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.
A person who elects to plead guilty is bound by the statements he
makes in open court while under oath and may not later assert
grounds for withdrawing the plea which contradict the statements
he made at his plea colloquy.
Commonwealth v. Yeomans, 24 A.3d 1044, 1047 (Pa. Super. 2011)
(emphasis added) (citation omitted).
In the current action, Appellant stated in open court while under oath
that he was pleading guilty of his own free will and that no one – which would
include his trial counsel – had “forced” or “threatened” him “to plead guilty in
any way.” N.T., 12/18/2018, at 4-5.
Moreover, th[e trial c]ourt had Appellant go over the written guilty
plea colloquy form with his attorney, sign the document, and
questioned him to make sure he understood what w[as] contained
therein. Appellant responded in the affirmative and that he was
proceeding of his own free will. [N.T., 12/18/2018,] at 5-6. The
colloquy include[d] an explanation regarding the implications of
an “open guilty plea.” Id. at 4.
Appellant, who at the time of the plea was receiv[ing] mental
health treatment and taking psychiatric medication told the Court
he was able to discuss the matter with his attorney and make
decisions about how to proceed. Id. at 6. When asked if Appellant
was satisfied with his attorney, Appellant responded “Yes” and
acknowledged that his attorney discussed the charges, maximum
penalties and mandatories with him and no further discussion was
needed. Id. at 7-8.
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PCRA Court Opinion, filed June 25, 2018, at 5. 4 Appellant is bound by these
statements and cannot now assert the contradictory claims that his mental
health status was inadequately addressed, that his counsel forced him to plead
guilty, that he did not understand the implications of his plea, or that he was
otherwise dissatisfied with his counsel. See Appellant’s Brief at 21;
Yeomans, 24 A.3d at 1047. Consequently, Appellant’s argument that he
suffered prejudice is not supported by the record.
As Appellant cannot satisfy one prong of the ineffective assistance of
counsel test, his entire ineffectiveness claim fails. Medina, 209 A.3d at 1000.
Since Appellant is not entitled to PCRA relief and no purpose would be
served by any additional proceedings, he is likewise not entitled to an
evidentiary hearing. Commonwealth v. Postie, 200 A.3d 1015, 1022 (Pa.
Super. 2018) (en banc) (“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.”).
For the reasons given above, we conclude that Appellant’s issues raised
on appeal are meritless. Having discerned no error of law, we affirm the order
below. See Medina, 209 A.3d at 996.
Order affirmed.
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4 We further note that, pursuant to this Court’s previous review of this case,
it described the oral guilty plea colloquy as “thorough[.]” Jones, No. 1551
EDA 2009, at 2.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/29/19
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