Com. v. Shupp, Jr., D.

J-S58021-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DARYL LAMAR SHUPP, JR.,
Appellant No. 588 MDA 2015
Appeal from the Order of March 3, 2015
In the Court of Common Pleas of Lancaster County
Criminal Division at No(s): CP-36-CR-0000506-2011, CP-36-CR-0000616-
2012, CP-36-CR-0000740-2012
BEFORE: GANTMAN, P.J., OLSON AND PLATT,* JJ.
MEMORANDUM BY OLSON, J.: FILED DECEMBER 07, 2015
Appellant, Daryl Lamar Shupp, Jr., appeals from an order entered on
March 3, 2015 in the Criminal Division of the Court of Common Pleas of
Lancaster County that denied his petition filed pursuant to the Post
Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.
The PCRA court thoroughly summarized the facts and procedural
history in this case as follows:
[Appellant was charged at docket number 506-2011 with
fourteen counts of theft by deception (graded as third-degree
felonies), seven counts of theft by deception (graded as
first-degree misdemeanors), and one count of theft by deception
(graded as a third-degree misdemeanor). The charges at
506-2011 are referred to as the “Credit Bureau charges” and
arose out of Appellant’s thefts from his former employer, the
Credit Bureau of Lancaster County, from January 1, 2005
through October 1, 2009. At docket number 616-2012,
Appellant was charged with two counts of theft by deception
(graded as second-degree misdemeanors). At docket number
* Retired Senior Judge assigned to the Superior Court
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740-2012, Appellant was charged with four counts of theft by
deception (graded as first-degree misdemeanors) and three
counts of theft by deception (graded as second-degree
misdemeanors). The charges at docket numbers 616-2012 and
740-2012 are referred to as the “Laser Lab charges” and arose
out of Appellant’s thefts from his next employer, Laser Lab, from
February 1, 2011 to June 1, 2011. Appellant committed some of
the offenses included as the Laser Lab charges after the
Commonwealth filed information 506-2011 but before the
preliminary hearing in that case.]
[Appellant] entered an open guilty plea to all the charges on
September 24, 2012. A pre-sentence investigation was ordered
[and,] on December 7, 2012, [Appellant] was sentenced by the
[trial c]ourt to an aggregate sentence of four to [12] years in a
state correctional institution, followed by seven years
consecutive probation. After [sentencing], [Appellant] filed a
[n]otice of [a]ppeal to th[is Court and we] affirmed [Appellant’s
judgment of sentence] on November 6, 2013. [Appellant
thereafter] filed a pro se PCRA petition on December 6, 2013
and was appointed counsel. A counseled petition was filed on
August 15, 2014, alleging trial counsel was ineffective for failing
to clarify whether [Appellant’s] plea was open or negotiated and
[for] failing to file a post-sentence motion challenging the
validity of the guilty plea.
An evidentiary hearing was held on October 30, 2014. At the
hearing, [Appellant] presented three witnesses: Attorney
Steven Breit, who originally represented [Appellant] at the
preliminary hearing for [the Credit Bureau] charges at docket
506-2011; Attorney Richard B. MacDonald, who represented
[Appellant] through sentencing on all three dockets following
Attorney Breit’s withdrawal from the case; [and, Appellant]. The
Commonwealth presented testimony from [Assistant District
Attorney (“ADA”) Charles H. Rieck, IV]. [Appellant] and the
Commonwealth stipulated to the testimony of Attorney Melissa
R. Montgomery, who represented Petitioner at his preliminary
hearing on [the Laser Lab charges at] docket numbers 616-2012
and 740-2012.
Attorney Breit testified that he represented [Appellant] at the
preliminary hearing on February 3, 2011 for the [Credit Bureau]
charges on docket 506-2011. Attorney Breit testified that prior
to the hearing, he had discussions with ADA Rieck, the ADA
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assigned to the case, in which Attorney Breit had worked out a
potential plea agreement which called for concurrent sentences
on the Credit Bureau charges, resulting in a county sentence.
Attorney Breit also testified that he had written a
memo[random] to himself memorializing the conversation, dated
January 21, 2011[.] [T]he memo[random] indicated that ADA
Rieck would agree to a county sentence if the preliminary
hearing was waived as a sign of acceptance of responsibility.
Attorney Breit testified that he informed [Appellant] of the
exchange and, as a result, [Appellant] waived his preliminary
hearing on February 3, 2011. ADA Rieck was not the attorney
present at the preliminary hearing and there was no
memorialized communication from ADA Rieck confirming this
offer [at] docket 506-2011. Attorney Breit testified that
[Appellant’s] bail on 506-2011 was revoked when he was
charged [at] dockets 616-2012 and 740-2012. Attorney Breit
entered his appearance on those charges on April 1, 2011, but
by January 16, 2012, the relationship between Attorney Breit
and [Appellant] had been strained to such a degree that the
[trial c]ourt granted Attorney Breit leave to withdraw his
appearance as defense counsel.
The stipulated testimony of Attorney Montgomery stated that
she appear[ed] as [Appellant’s] counsel at his preliminary
hearing on [the Laser Lab charges at dockets 616-2012 and 740-
2012 on] February 3, 2012, which [Appellant] waived. The
stipulation also stated that Attorney Montgomery never had any
conversation with Attorney Breit about [Appellant’s] criminal
charges.
Attorney MacDonald testified that he entered his appearance on
all three docket numbers on May 4, 2012. Attorney MacDonald
testified that he could not recall having any discussion with
Attorney Breit about [Appellant’s] criminal charges. He testified
that he met with [Appellant] approximately once a month and
[Appellant] referenced an agreement [Appellant] believed
existed between Attorney Breit and ADA Rieck from the first
preliminary hearing. Attorney MacDonald testified that there
was no agreement between Attorney Breit and ADA Rieck. He
testified that had there been an agreement, it would no longer
be valid because of [Appellant’s] continuing criminal conduct and
because ADA Rieck was making it very clear that there were no
agreements. Attorney MacDonald testified that he knew
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[Appellant] waived his preliminary hearing on docket 506-2011,
but that the waiver was not in return for anything specific.
Attorney MacDonald testified that at the time of the guilty plea,
it was clearly an open plea. He testified that ADA Rieck had
indicated a large payment of restitution might be helpful in the
view of the [trial c]ourt, but ADA Rieck would not be offering
anything in return for it. Attorney MacDonald testified that at
the time of the guilty plea, he indicated to the [trial c]ourt that
[Appellant] believed ADA Rieck had offered concurrent time on
the Laser Lab charges, concurrent with each other and the Credit
Bureau charges[.] [H]e specifically testified that he was “trying
to make something from nothing” and “inviting the Judge to
consider what [Attorney MacDonald] had been told [ADA] Rieck
was saying to other [defense] attorneys without it being an
agreement…even though it wasn’t in writing.” Attorney
MacDonald testified that none of the ADAs present for the guilty
plea or sentencing rejected his statement regarding concurrency
of the Credit Bureau charges and Laser Lab charges. Attorney
MacDonald testified that neither an agreement nor a
recommendation had been offered to him, so he proceeded as
though [Appellant was entering] an open guilty plea. [Attorney
MacDonald] testified that he did not believe there was any
agreement in this case, and, if there had been an agreement, “it
was negated by continuing criminal conduct, which in [Attorney
MacDonald’s] opinion is not accepting responsibility for your
current criminal conduct in any reference. He testified that he
discussed with [Appellant] the differences between [an] open
plea, [a] negotiated plea, and a partially negotiated plea and
that [Appellant] “understood that it was an open plea, there
were no deals, [and] it would be up to Judge Knisely to
determine the sentence.” Attorney MacDonald testified that he
believed [Appellant’s] guilty plea was knowing, voluntary and
intelligent.
Attorney MacDonald testified that he indicated to [Appellant]
that [he] was likely looking at a sentence of four to eight years.
[Attorney MacDonald] testified that he told [Appellant] that he
should not be surprised by a harsh sentence based on the victim
impact statements, which Attorney MacDonald described as “two
of the best victim impact statements I ever read and/or heard in
the courtroom.” [Attorney MacDonald] testified that after the
sentencing, he met with [Appellant] in the holding cell and
[Appellant] made no objection to the sentence, felt it was
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reasonable, and had no intention of filing any motions disputing
the sentence. Attorney MacDonald testified that [Appellant] did
not contact him while [Appellant] was in Lancaster County Prison
and that he only learned [Appellant] wanted to appeal from the
Public Defender’s office, at which time Attorney MacDonald filed
a motion to modify sentence on behalf of [Appellant].
[Appellant] testified that Attorney Breit indicated that if the
preliminary hearing for the Credit Bureau charges at docket 506-
2011 was waived, then the ADA would agree to a county
sentence. [Appellant] testified that he went over sentencing
guidelines with Attorney Breit during every visit. [Appellant]
testified that after the preliminary hearing, during his meetings
with Attorney Breit, Attorney Breit never indicated whether the
“deal” was still on with the Commonwealth. [Appellant] testified
that when he appeared for his second preliminary hearing on the
Laser Lab charges at docket[s] 616-2012 and 740-2012 with
Attorney Montgomery, he was told that he should waive the
hearing because the Commonwealth would run the charges
along with the Credit Bureau charges at docket 506-2011.
[Appellant] testified that he never retained Attorney Montgomery
at the Common Pleas level. [Appellant] testified that he told
Attorney MacDonald about the offer made by ADA Rieck for
concurrent sentences. He testified that he signed the guilty plea
paperwork indicating there was no negotiated guilty plea
because he just signed where his attorney told him to sign. On
cross-examination, [Appellant] testified that he committed new
crimes after he [was charged for the Credit Bureau offenses],
but prior to his preliminary hearing [in that case]. He testified
that at his guilty plea he never stopped the plea and told anyone
that this was not the plea he had agreed to enter. He testified
that at the guilty plea he told the Court it was his decision to
plead guilty, that he had not been forced, threatened, or coerced
to plead guilty, and that the Court explained to him that the
sentence would be solely up to the Court to decide. Finally,
[Appellant] testified that he did not recall telling Attorney
MacDonald that he wanted to file any motions after the
sentencing.
The Commonwealth called former ADA [] Rieck as their sole
witness. [ADA] Rieck testified that he was the ADA in charge of
[Appellant’s] criminal case. He testified that he never provided a
formal offer to Attorney Breit regarding [Appellant’s] case. He
testified that he would not have made a specific plea offer
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because [pleas involving theft from an employer required
approval from either the District Attorney or the First Assistant
District Attorney when the case exceeded a certain dollar
amount and Appellant’s charges far exceeded that threshold].
ADA Rieck testified that he had discussed with Attorney Breit
how [Appellant] might show remorse to mitigate a sentence, but
no specific deal was reached. He also testified that any leniency
he was inclined to show would have disappeared upon learning
of [Appellant’s] subsequent crimes and that he believed he
communicated that position to Attorney Breit. He also testified
that if there had been any formal offer or formal deal, he would
have conveyed the deal in writing along with discovery to
Attorney MacDonald when Attorney MacDonald entered his
appearance.
Trial Court Opinion, 3/4/15, at 1-6. After the PCRA hearing and the
submission of briefs by the parties, the court denied collateral relief by order
dated March 3, 2015. This appeal followed.1
On appeal, Appellant raises the following question for our
consideration:
WAS NOT [APPELLANT] ENTITLED TO RELIEF UNDER THE POST
CONVICTION RELIEF ACT BECAUSE THE KNOWINGNESS AND
VOLUNTARINESS OF [APPELLANT’S] GUILTY PLEA WAS
VITIATED BY THE INEFFECTIVENESS OF GUILTY PLEA COUNSEL
AND BECAUSE GUILTY PLEA COUNSEL WAS INEFFECTIVE IN
FAILING TO FILE A POST SENTENCE MOTION IN THE NATURE OF
A MOTION CHALLENGING THE VALIDITY OF THE GUILTY PLEA?
Appellant’s Brief at 4.
Appellant challenges an order that denied collateral relief under the
PCRA. “Under the applicable standard of review, we must determine
whether the ruling of the PCRA court is supported by the record and is free
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1
The requirements of Pa.R.A.P. 1925 have been satisfied.
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of legal error.” Commonwealth v. Spotz, 18 A.3d 244, 259 (Pa. 2011)
(citation omitted). In conducting this inquiry, “[t]he PCRA court's credibility
determinations, when supported by the record, are binding on this Court[;
h]owever, this Court applies a de novo standard of review to the PCRA
court's legal conclusions.” Id. (citations omitted).
Appellant contends that guilty plea counsel’s ineffectiveness caused
him to enter an invalid plea. Specifically, Appellant summarizes his claim as
follows:
Guilty plea counsel [(Attorney MacDonald)] should have been
aware the [Appellant] prior to entering his guilty plea was
harboring the subjective belief that the Commonwealth would
fulfill the promises that it made in return for his waiving the
preliminary hearings on both [the Credit Bureau and Laser Lab]
charges. Counsel was ineffective in failing to engage in either
one of the following two courses of action: (a) ensure that [the
various assistant district attorneys] attending the court
proceedings were aware of the promises made by lead ADA
Reick regarding recommendations that the Commonwealth would
make at sentencing; or (b) ascertain that any such promise was
rescinded, and inform [Appellant] of that fact.
Counsel’s ineffectiveness rendered [Appellant’s] guilty plea
unknowing and involuntary. Counsel was also ineffective in
failing to file a motion challenging the validity of the guilty plea
by raising the claim that [Appellant’s] guilty plea was induced by
his belief that the Commonwealth at sentencing promised to
recommend concurrent sentences on the Credit Bureau charges.
Appellant’s Brief at 28. Appellant concludes that this Court should reverse
the order denying collateral relief and further vacate his guilty plea and
sentence. Id. at 39.
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To prevail on a petition for PCRA relief, a petitioner must plead and
prove by a preponderance of the evidence that his conviction or sentence
resulted from one or more of the circumstances enumerated in 42 Pa.C.S.A.
§ 9543(a)(2). Spotz, supra. These circumstances include the
ineffectiveness of counsel, which “so undermined the truth-determining
process that no reliable adjudication of guilt or innocence could have taken
place.” 42 Pa.C.S.A. § 9543(a)(2)(ii).
Our analysis of an ineffectiveness claim begins with the presumption
that counsel is effective. Spotz, supra. To overcome this presumption and
prevail on such a claim, Appellant must plead and prove, by a
preponderance of the evidence, three elements: (1) the underlying legal
claim has arguable merit; (2) counsel had no reasonable basis for his action
or inaction; and (3) Appellant suffered prejudice because of counsel's action
or inaction. Moreover,
claims of counsel's ineffectiveness in connection with a guilty
plea will provide a basis for relief only if the ineffectiveness
caused an involuntary or unknowing plea. This is similar to the
‘manifest injustice’ standard applicable to all post-sentence
attempts to withdraw a guilty plea. The law does not require
that appellant be pleased with the outcome of his decision to
enter a plea of guilty: All that is required is that [appellant's]
decision to plead guilty be knowingly, voluntarily and intelligently
made.
Once a defendant has entered a plea of guilty, it is presumed
that he was aware of what he was doing, and the burden of
proving involuntariness is upon him. Therefore, where the
record clearly demonstrates that a guilty plea colloquy was
conducted, during which it became evident that the defendant
understood the nature of the charges against him, the
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voluntariness of the plea is established. A defendant is bound by
the statements he makes during his plea colloquy, and may not
assert grounds for withdrawing the plea that contradict
statements made when he pled.
Determining whether a defendant understood the connotations
of his plea and its consequences requires an examination of the
totality of the circumstances surrounding the plea.
[I]n order to determine the voluntariness of the plea and
whether the defendant acted knowingly and intelligently, the
trial court must, at a minimum, inquire into the following six
areas:
(1) Does the defendant understand the nature of the
charges to which he is pleading guilty?
(2) Is there a factual basis for the plea?
(3) Does the defendant understand that he has a right to
trial by jury?
(4) Does the defendant understand that he is presumed
innocent until he is found guilty?
(5) Is the defendant aware of the permissible ranges of
sentences and/or fines for the offenses charged?
(6) Is the defendant aware that the judge is not bound by
the terms of any plea agreement tendered unless the judge
accepts such agreement?
Commonwealth v. McCauley, 797 A.2d 920, 922 (Pa. Super. 2001)
(internal citations omitted).
We have carefully reviewed the certified record, the parties’ appellate
submissions, and the PCRA court’s opinion. In its opinion, the court
reviewed the transcript of Appellant’s plea hearing and concluded that,
based upon the totality of circumstances, Appellant entered a knowing,
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voluntary, and intelligent plea. Trial Court Opinion, 3/4/15, at 9. In
addition, upon review of the PCRA hearing transcript, the court credited the
testimony of plea counsel and ADA Reick and rejected Appellant’s testimony.
Taken together, the testimony offered by plea counsel and ADA Reick
credibly established that there was no plea agreement offered in this case
and that Appellant was fully aware that he tendered an open plea to the
charges against him. The PCRA court found Appellant’s testimony to be
“patently unreasonable” in view of his assertion that he believed he still had
an agreement for a county sentence despite his continuing course of criminal
conduct and the revocation of his bail on the Credit Bureau charges. See id.Since Appellant acknowledged at sentencing that he was entering an open
guilty plea under which the court was free to fashion his sentence, the PCRA
court held that Appellant was bound by this acknowledgement and that he
could not offer a contrary, subjective understanding as the basis for
collateral relief. We hold that the PCRA court’s findings are fully supported
by the record and that its legal conclusions are free of error. Accordingly,
we affirm.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/7/2015
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