Com. v. Mohiuddin, M.

J-S04039-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MOHAMMED MOHIUDDIN :
:
Appellant : No. 1332 EDA 2021
Appeal from the PCRA Order Entered June 1, 2021
In the Court of Common Pleas of Bucks County Criminal Division at
No(s): CP-09-CR-0007430-2018
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MOHAMMED MOHIUDDIN :
:
Appellant : No. 1333 EDA 2021
Appeal from the PCRA Order Entered June 1, 2021
In the Court of Common Pleas of Bucks County Criminal Division at
No(s): CP-09-CR-0007432-2018
BEFORE: BENDER, P.J.E., MURRAY, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED FEBRUARY 14, 2022
Appellant Mohammed Mohiuddin appeals from the order of the Court of
Common Pleas of Bucks County dismissing Appellant’s first petition pursuant
to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. § 9541 et seq. After
careful review, we affirm.
____________________________________________
* Former Justice specially assigned to the Superior Court.
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The PCRA court aptly summarized the factual background and
procedural history of the case as follows:
On November 13, 2019, Appellant entered a negotiated nolo
contendere plea on two separate cases. On docket number CP-
09-CR-7430-2018, the Commonwealth withdrew a count of
Defiant Trespass (M3) and Appellant pled to Prohibited Offensive
Weapons (M1). On docket number CP-09-CR-7432-2018, the
Commonwealth withdrew two felony counts of Burglary (F1) and
Criminal Trespass (F2) and Appellant pled to Defiant Trespass
(M3). The Commonwealth and Appellant agreed to incorporate
the affidavits of probable cause to serve as a factual basis for the
plea and the following summaries of facts were also established
and agreed to by Appellant at his nolo contendere hearing:
On 7432-2018, on October 3, 2018, having been lawfully
evicted from the residence at 1220 Grenoble Road in
Northampton Township, Bucks County, Pennsylvania,
Appellant returned to the residence and did enter the
residence through a rear window. When ordered to leave
by the police[,] he failed to do so in a timely manner.
On 7430-2018, on October 29, 2018, Appellant again
arrived at 1220 Grenoble Road in Northampton Township,
Bucks County. On that date, he approached the mailbox of
that residence to obtain mail, and at the time was in
possession of a prohibited offensive weapon. That,
pursuant to the negotiation, would be a stun gun.
[Notes of Testimony (N.T.)], 11/13/19, 9.
On that same date, Appellant was sentenced pursuant to
the negotiation of the parties: 36 months’ probation and no
contact with Mohammed Fasih, his wife, their three children, as
well as the wife and three children of Mr. Fasih’s deceased brother,
Mohammed Mokmoud. Id. at pp. 15-16.
PCRA Court Opinion, 8/2/21, at 1-2.
On November 20, 2020, Appellant filed a pro se PCRA petition. The
PCRA court subsequently appointed Appellant counsel, who filed an amended
petition, alleging, inter alia, that trial counsel’s ineffectiveness caused
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Appellant to enter an involuntary and unknowing nolo contendere plea at both
trial court dockets as “there was no factual basis for the plea made of record
and that the record makes clear that he did not understand the nature and
consequences of his plea.” Amended Petition, 4/22/21, at 5 (unpaginated).
On May 11, 2021, the PCRA court entered an order issuing notice of its
intent to dismiss Appellant’s petition without a hearing pursuant to
Pa.R.Crim.P. 907. On May 19, 2021, Appellant filed a response. On June 1,
2021, the PCRA court entered an order dismissing Appellant’s petition. On
July 1, 2021, Appellant filed two notices of appeal to this Court.
Appellant raises the following issue for our review on appeal: “[d]id the
lower court err in denying Appellant’s Post-Conviction Relief Act petition
without a hearing where trial counsel rendered ineffective assistance of
counsel on allowing Appellant to plead nolo contendere without a valid
colloquy?” Appellant’s Brief, at 4.
Our standard of review is as follows:
Our review of a PCRA court's decision is limited to examining
whether the PCRA court's findings of fact are supported by the
record, and whether its conclusions of law are free from legal
error. We view the findings of the PCRA court and the evidence of
record in a light most favorable to the prevailing party. With
respect to the PCRA court's decision to deny a request for an
evidentiary hearing, or to hold a limited evidentiary hearing, such
a decision is within the discretion of the PCRA court and will not
be overturned absent an abuse of discretion.
Commonwealth v. Maddrey, 205 A.3d 323, 327 (Pa.Super. 2019) (quoting
Commonwealth v. Mason, 634 Pa. 359, 130 A.3d 601, 617 (2015) (internal
citations and quotation marks omitted)).
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In reviewing such a claim involving the ineffectiveness of counsel, we
are guided by the following principles:
[a]s originally established by the United States Supreme Court in
Strickland v. Washington, 466 U.S. 668, [104 S.Ct. 2052, 80
L.Ed.2d 674] (1984), and adopted by Pennsylvania appellate
courts, counsel is presumed to have provided effective
representation unless a 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 at trial if not for counsel's error.
Commonwealth v. Selenski, 228 A.3d 8, 15 (Pa.Super. 2020) (quoting
Commonwealth v. Wantz, 84 A.3d 324, 331 (Pa.Super. 2014) (citations
omitted)
It is well-settled that, “[i]n terms of its effect on a case, a plea of nolo
contendere is treated the same as a guilty plea.” Commonwealth v.
Potrzebrowski, 262 A.3d 541 (Pa.Super. 2021) (quoting Commonwealth
v. Lewis, 791 A.2d 1227, 1230 (Pa.Super. 2002)).
Ineffective assistance of counsel claims arising from the
plea-bargaining process are eligible for PCRA review.
Commonwealth ex rel. Dadario v. Goldberg, 565 Pa. 280, 773
A.2d 126 (2001) (holding all constitutionally recognized claims of
ineffective assistance are cognizable under PCRA). “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.”
Commonwealth v. Moser, 921 A.2d 526, 531 (Pa.Super.2007)
(quoting Commonwealth v. Hickman, 799 A.2d 136, 141
(Pa.Super. 2002)). “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.” Moser, supra.
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The standard for post-sentence withdrawal of guilty pleas
dovetails with the arguable merit/prejudice requirements
for relief based on a claim of ineffective assistance of plea
counsel, ... under which the defendant must show that
counsel's deficient stewardship resulted in a manifest
injustice, for example, by facilitating entry of an unknowing,
involuntary, or unintelligent plea. This standard is
equivalent to the “manifest injustice” standard applicable to
all post-sentence motions to withdraw a guilty plea.
Commonwealth v. Morrison, 878 A.2d 102, 105
(Pa.Super.2005) (en banc), appeal denied, 585 Pa. 688, 887 A.2d
1241 (2005) (internal citations omitted).
A valid guilty plea must be knowingly, voluntarily and
intelligently entered. Commonwealth v. Pollard, 832 A.2d 517,
522 (Pa.Super. 2003). The Pennsylvania Rules of Criminal
Procedure mandate 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. Commonwealth v. Hodges, 789 A.2d 764(Pa.Super.2002) (citing Pa.R.Crim.P. 590). 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. Commonwealth v. G. Watson, 835 A.2d 786(Pa.Super. 2003). 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. Muhammad, 794 A.2d 378,
383–84 (Pa.Super. 2002).
Commonwealth v. Kelley, 136 A.3d 1007, 1012–13 (Pa.Super. 2016). We
also note that in order to show prejudice, the defendant is required to show
that it is reasonably probable that, but for counsel’s error, he would not have
entered the plea, but would have chosen to go to trial. Hickman, 799 A.2d
at 141.
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On appeal, Appellant claims that trial counsel’s ineffectiveness caused
him to enter a plea which was not knowing or intelligently made as he alleges
that his plea colloquy was defective in several different ways. First, Appellant
claims that he did not have an adequate written plea colloquy as the parties
employed a written guilty plea colloquy form and simply substituted the term
“nolo contendere” throughout the document.
However, Appellant did not challenge his plea colloquy on these grounds
before the PCRA court, but raises this particular contention for the first time
on appeal. As a general rule, “issues not raised in a PCRA petition cannot be
considered on appeal.” Commonwealth v. Ousley, 21 A.3d 1238, 1242
(Pa.Super. 2011) (quotation and citations omitted); Pa.R.A.P. 302(a) (“Issues
not raised in the lower court are waived and cannot be raised for the first time
on appeal”).1
Appellant also argues that his nolo contendere plea was not knowingly,
voluntarily, or intelligently made, as he claims the written colloquy executed
“does not contain any explanation nor does it adequately serve to advise
Appellant of the consequences of a nolo contendere plea.” Appellant’s Brief,
at 14. Further, Appellant contends he was not aware of the factual basis for
____________________________________________
1 Our Supreme Court recently expanded the opportunities for a PCRA
petitioner to raise claims of PCRA counsel ineffectiveness for the first time on
collateral appeal. See Commonwealth v. Bradley, ––– A.3d ––––, 2021
WL 4877232 (Pa. 2021). However, since Appellant’s claim does not involve
circumstances where he is attempting to raise a claim of the ineffectiveness
of his PCRA counsel, the dictates of Bradley do not impact this case.
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the plea and never indicated he “was agreeing that the Commonwealth would
be able to establish the facts supporting the prohibitive offensive weapons
charge beyond a reasonable doubt.” Appellant’s Brief, at 16.
Although the written colloquy did not specifically define a nolo
contendere plea, the trial court reviewed with Appellant how his nolo
contendere plea differed from a guilty plea and the potential sentences he
faced on each of the charges:
[Trial Court:] Mr. Mohiuddin, you’re entering a nolo contendere
plea to prohibited offensive weapons, a misdemeanor of the first
degree, for which you could be sentenced up to five years in jail
and to pay a fine of up to $10,000. …
Do you understand that?
[Appellant:] Yes.
[Trial Court:] And, again, you’re not admitting to anything, but
you are agreeing that if the case went to trial, the factfinder,
whether it be a judge or a jury, if it believed the Commonwealth’s
evidence, that that evidence would be enough for you to be found
guilty beyond a reasonable doubt.
Do you understand that? You’re not admitting to anything. Do
you understand that? Yes?
[Appellant:] Yes. …
[Trial Court:] Prohibited offensive weapons means, in this case,
that you had in your possession or otherwise used or dealt in a
weapon that’s specifically prohibited, in particular, a stun gun. Do
you understand that? …
Appellant is given time to confer with his attorney off the record.]
[Appellant:] Yes.
[Trial Court:] On the other case, you’re entering a nolo contendere
plea to defiant trespass, a misdemeanor of the third degree, for
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which you could be sentenced to an additional 12 months in jail
and to pay a fine of up to $2,500. Do you understand that?
[Appellant:] Yes.
[Trial Court:] And again, you’re not admitting to it, but you’re
agreeing that if the case went to trial the evidence, if believed by
the factfinder, could be sufficient for you to be found guilty beyond
a reasonable doubt.
And that is that the Commonwealth would have to show that you
were not permitted to be at a certain location that you had
previously been given communication not to be there, and you
returned there in any event. Do you understand that?
[Appellant:] Yes.
Notes of Testimony (N.T.), 11/13/19, at 3-6.
Our review of the record shows that Appellant repeatedly acknowledged
in his written and oral colloquies that he understood the consequences of his
plea and the rights he was giving up in entering the plea. Appellant failed to
identify any consequence of the plea of which he was not properly advised or
suggest how trial counsel should have conducted the colloquies differently.
We disagree with Appellant’s contention that his plea was not knowing
or intelligent due to the alleged lack of a factual basis for the plea. At the plea
hearing, the parties agreed to incorporate the affidavits of probable cause for
the factual basis of the plea and the prosecutor additionally placed on the
record a brief summary of the facts related to each of the charges. Appellant
testified that “by agreement” that the prosecutor’s recitation of the facts was
the factual basis for the charges. N.T. at 11.
Appellant also confirmed that his decision to enter the nolo contendere
plea was his decision alone and that he had sufficient time to confer with his
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attorney, who adequately explained the plea agreement with him and
provided satisfactory representation. Appellant indicated that he fully
understood the written colloquy and would testify to the same answers under
oath. Further, Appellant did not assert that there was a reasonable possibility,
had trial counsel conducted the colloquy differently, that he would have
declined to enter the nolo contendere plea and chosen to go to trial.
Accordingly, we conclude that the PCRA court correctly found that
Appellant was not entitled to relief on his ineffectiveness claim.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/14/2022
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