Com. v. Dillard, T.

J-S41034-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
TROY DILLARD, :
:
Appellant : No. 24 EDA 2018
Appeal from the PCRA Order November 30, 2017
In the Court of Common Pleas of Bucks County
Criminal Division at No(s): CP-09-CR-0003340-2010
BEFORE: GANTMAN, P.J., OLSON, J., and STEVENS*, P.J.E.
MEMORANDUM BY GANTMAN, P.J.: FILED AUGUST 21, 2018
Appellant, Troy Dillard, appeals from the order entered in the Bucks
County Court of Common Pleas, which denied his first petition filed pursuant
to the Post Conviction Relief Act (“PCRA”).1 We affirm.
In its opinion, the PCRA court fully and correctly sets forth the relevant
facts and procedural history of this case. Therefore, we have no need to
restate them.
Appellant raises the following issues for our review:
DID THE PCRA COURT ERR IN NOT FINDING PLEA COUNSEL
INEFFECTIVE FOR FAILING TO OBJECT TO AN INADEQUATE
NOLO CONTENDERE PLEA COLLOQUY?
DID THE PCRA COURT ERR IN NOT FINDING PLEA COUNSEL
INEFFECTIVE FOR FAILING TO FILE AN APPEAL ON THE
INADEQUATE NOLO CONTENDERE PLEA COLLOQUY?
____________________________________________
1 42 Pa.C.S.A. §§ 9541-9546.
____________________________________
* Former Justice specially assigned to the Superior Court.
J-S41034-18
DID THE PCRA COURT ERR IN NOT FINDING FIRST PCRA
COUNSEL INEFFECTIVE FOR NOT RAISING THE
INADEQUATE NOLO CONTENDERE PLEA COLLOQUY IN THE
INITIAL PCRA PETITION[?]
(Appellant’s Brief at 4).
Our standard of review of the denial of a PCRA petition is limited to
examining whether the evidence of record supports the court’s determination
and whether its decision is free of legal error. Commonwealth v. Conway,
14 A.3d 101, 109 (Pa.Super. 2011), appeal denied, 612 Pa. 687, 29 A.3d 795(2011). This Court grants great deference to the findings of the PCRA court if
the record contains any support for those findings. Commonwealth v. Boyd,
923 A.2d 513, 515 (Pa.Super. 2007), appeal denied, 593 Pa. 754, 932 A.2d
74 (2007). We give no such deference, however, to the court’s legal
conclusions. Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa.Super.
2012).
After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinion of the Honorable Rea B. Boylan,
we conclude Appellant’s issues merit no relief. The PCRA court’s opinion
comprehensively discusses and properly disposes of the questions presented.
(See PCRA Court Opinion, filed February 12, 2018, at 7-13) (finding: Appellant
was well aware of nature and consequences of entering nolo contendere plea,
and entered his plea knowingly, voluntarily, and intelligently; plea counsel’s
actions did not induce invalid plea; and prior counsel’s failure to challenge plea
-2-
J-S41034-18
colloquy on appeal does not constitute ineffectiveness of counsel; plea court
conducted separate colloquy explaining no contest plea; in response to all
questions posed, Appellant stated he understood, and explained he was not
under the influence of any substances; Appellant affirmed he understood plea
court’s explanation of charges, permissible ranges of sentences, and
Appellant’s rights; Appellant acknowledged he and plea counsel had discussed
meaning of nolo contendere plea at “great length”; Appellant thrice affirmed
he was satisfied with plea counsel’s familiarity with case, and he understood
nature and consequences of no contest plea; Appellant actively participated
in plea proceedings; Appellant’s plea was valid). The record supports the
PCRA court’s reasoning. See Conway, supra. Accordingly, we affirm on the
basis of the PCRA court opinion.
Order affirmed.
President Judge Emeritus Stevens joins this memorandum.
Judge Olson concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/21/18
-3-
Circulated 08/02/2018 02:49 PM
l1fTHE COURT OF COMMON PLEAS OF BUCKS COUNTY, PENNSYLVANIA
CRIMINAL DIVISION
COMMONWEALTH OF PENNSYLVANIA
v. CP-09-CR-0003340-2010
TROY DILLARD
OPINION
Petitioner Troy Dillard ("Appellant") appeals from this Court's dismissal of his petition
pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S. § 9541 et seq, on November
30, 2017. We file this Opinion pursuant to Pennsylvania Rule of Appellate Procedure 1925(a).
I. FACTUAL BACKGROUND
The following is a summary of the relevant facts as set forth in our opinion filed on June
�.. 2014:
On March 29, 2010, at approximately 6:25 a.m., Claire Forte was preparing to leave work
from her home in Newtown Borough, Bucks County. Ms. Forte entered her attached
garage from inside the home and opened the exterior garage dnor to leave for work. Ms.
Forte was opening the trunk of her car, a 2007 550 class Mercedes sedan valued at over
$65,000, when she was attacked from behind by Jerry Laventure, Akim Pierre, and
Appellant. All three were all dressed in dark clothing and wearing gloves, and two were
wearing dark skull caps.
After grabbing Ms. Forte, the three individuals attempted to shove her into the open trunk
of hef.Mercedes. Ms. Forte resisted, and was thrown to the ground by her attackers, she
as
t: screamed she was held on the ground and Mr. Pierre punched her in the mouth and
shoved his fist down her throat as one of the other attackers grabbed her and held her
1egs.--A.s Ms. Forte attempted to scream again one of the men placed his hands tightly
around her neck causing her to believe she was about to die. During this attack one of the
assailants opened the door to her home and set off the door sensor alarm. The men
dragged Ms. Forte across the garage and out from behind the Mercedes. One of the men
grabbed the keys from her hand as she was being pulled outside the garage. Appellant
drove the Mercedes out of the garage and away from lier residence. The two other men
ran from the garage and across the street and drove away in a silver Range Rover.
A Lower Makefield police officer heard a call over his radio and observed a Range Rover
matching the description. The officer pursued the car into Ewing Township, New Jersey.
Local police assisted and eventually arrested Mr. Laventure and Mr. Pierre, the two
occupants of the Range Rover. The Range Rover had been stolen from Hamilton
1
'Township, New Jersey, in December 2009. Inside the Range Rover, police found a
realistic-looking, 9-millimeter-type BB gun. Appellant later confessed to another inmate
in prison that the gun belonged to him. Police recovered rope, a bungee cord and a screw
driver from the center console of the Range Rover. In the back seat, police found tools
commonly used to enter and steal cars. They also recovered a parking permit for the
Princeton Junction, West Windsor train station parking lot, which is the same parking lot
where Ms. Forte parked her Mercedes every day before talcing the train to her office in
New York. The permit had been stolen from another car in that same lot on March 12,
2010. Police also found keys from numerous other vehicles inside the stolen Range
Rover and a leather bound owner's manual case for a 550 class Mercedes, although the
manual itself was removed. Investigation revealed that an owner's manual had been
stolen from a similar Mercedes in the West Windsor parking lot on March 16, 2010.
Police also recovered a pair of white/tan gloves and the right glove had blood on the
fingers and palm area. DNA testing by National Medical Services Laboratory revealed
that the blood on the outside of the right glove belonged to Ms. Forte. The lab also found
DNA from all three co-defendants, including Appellant, on that same glove.
At approximately 9:00 p.m. on March 29, 2010, law enforcement officers in New Jersey
and the U.S. Marshall's Warrant Service Team observed Appellant exit the stolen
Mercedes. Police attempted to stop Appellant as he entered a green vehicle, but he fled
and led the police on a high-speed chase exceeding 90 miles per hour. Police called off
the pursuit as Appellant drove on the opposite side of a busy road and placed other
motorists at risk. On April 6, 2010, police located Appellant in Chambersburg, PA.
Appellant fled on foot and resisted, requiring police to taser him in order to take him into
custody. Police found the keys to Ms. Forte's Mercedes under the mattress of the bed
where Appellant was staying. In recorded conversations from a prison phone the
Appellant can be heard asking whether police had found the keys.
Ms. Forte recalled seeing the Range Rover parked on the street in front of her house
about a week before she was attacked. She also saw it following her on 1-95 on the way
home from the West Windsor parking lot. Mr. Laventure stated that he planned the
robbery in advance with Appellant and Mr. Pierre. They had planned to steal the car two
or three different times before March 29, 2010. Approximately three weeks earlier,
Appellant had pointed to the Mercedes at the Princeton Junction Train Station and stated,
"I am going to take that car." On that date Appellant smashed out a window of a similar
Mercedes, stealing an I-Pod and the owner's manual. A few days later Mr. Pierre, Mr.
Laventure and Appellant waited for Ms. Forte to return to her car at the train station so
they could follow her home to determine where she lived.
Mr. Laventure described to police how the three had attempted to steal the Mercedes
previously. On one occasion, the three men stole two vans and planned on boxing Ms.
Forte in her car on her street to carjack the vehicle. That plan fell through when one of
the vans would not start. On the date of the robbery, Appellant gave Mr. Laventure his
BB gWI so that he could "handle the lady." Mr. Laventure stated that he carried the BB
gun with him during the assault. He described seeing Mr. Pierre's hand in Ms. Forte's
2
'mouth while she was on the ground. After Appellant drove off in the stolen Mercedes,
Mr. Laventure and Mr. Pierre got in the Range Rover to flee the scene. When Mr. Pierre
got into the SUV he told Mr. Laventure that he stuffed his whole hand "down that bitch's
throat."
Before police apprehended Mr. Pierre and Mr. Laventure, Appellant called Mr. Pierre's
cell phone several times to find out where they were. Police identified Appellant's
fingerprints on the license plate attached to the stolen Range Rover. Appellant's DNA
profile was identified on the steering wheel of the Mercedes, on a black knit hat
recovered from the Mercedes, and on the glove in the Range Rover along with Ms.
Forte's blood. N.T. 10/18/10, pp. 17-25.
Trial Ct. Op., June 823 A.2d 917,
920-21 (Pa. Super. Ct. 2003)] in detail with Appellant during the colloquy. Appellant
acknowledged that he was presumed innocent and that he had a right to a trial by jury.
N.T. 10/18/10, pp. 2-3. The Court advised the Appellant that he would have no
obligation to testify at trial but had the option of testifying and presenting his case, and he
would have the choice between a jury trial and a bench trial. Id, pp. 3-4. The Court
further informed the Appellant that he would be forfeiting the right to raise pretrial
issues, and that he would be limiting the issues he could raise on appeal. Id., p. 5. The
Court also advised Appellant regarding the availability of a presentence investigation.
Id., p. 7. Furthermore, the court advised Appellant of the manifest injustice standard for
1
18 Pa.C.S. § 370i(a)(l)(ii) and (iv).
2
18 Pa.C.S. § 3702.
3
18 Pa.C.S. § 3921.
4
18 Pa.C.S. § 3925.
5
18 Pa.C.S. § 2903.
6
18 Pa.C.S. § 2701.
7
18 Pa.C.S. § 3502.
8
18 Pa.C.S. § 903.
918 Pa.C.S. § 901; 18 Pa.C.S. 290l(a).
3
'withdrawing a guilty plea. Id., p. 8. The Appellant confirmed that he was not forced to
plead guilty and received no promises regarding the sentence. Id., pp. 5-6.
The Court informed Appellant that, in general, the charges on the information involved a
robbery in the course of a theft of a 2007 Mercedes Benz in which he threatened Ms.
Forte by intentionally placing her in fear of immediate serious bodily injury. N.T.
10/18/10, p. 9. Appellant acknowledged that he understood the charges. Id. The Court
reviewed each charge on the information with Appellant, and informed him of the largest
maximum and minimum to which he could be sentenced. Id., pp. 9-15. Appellant
acknowledged that the largest aggregate maximum sentence he could ·receive was 80
years. Id., p. 14. In addition, the Court made clear to Appellant the counts on which it
would not sentence him separately. Id., pp. 9-15. Appellant substantially agreed with the
facts provided by the Commonwealth. Id., pp. 17-27.
Trial Ct. Op., June 'f, 2014. In addition to the above oral colloquy, we separately discussed
Appellant's nolo contendere plea to two counts of Attempted Kidnapping, as demonstrated by
the following exchange:
MR. JAMES: Your Honor, the defendant's pleading no contest to Counts 3 or 4.
THE COURT: So you're pleading no contest to that offense; is that correct?
THE DEFENDANT: Yes.
THE COURT: You understand that by pleading no contest you will stand convicted of
these crimes just as if you've gone to trial and been convicted by them. Do you
understand that?
THE DEFENDANT: Yes.
N.T. 10/18/10, p. 10. Further, plea counsel conducted an additional colloquy with the Appellant
regarding his nolo contendere plea:
BY MR. ABAZA:
Q: First of all, Mr. Dillard, you heard the facts as recited by Mr. James, correct?
A: Yes.
Q: Do you substantially agree with those facts?
A:Yes.
4
· Q: And the Commonwealth agreed to allow you to plead no contest to the robbery and
the attempted kidnapping?
A: Yes.
Q: And we went over at great length that no contest means that you're not admitting to
the charge but you're not contesting the evidence that the Commonwealth has. That is,
the DNA evidence and the fingerprints and the testimony of the co-defendants?
A:Yes.
THE COURT: Are you satisfied that your lawyer is familiar with all of the
evidence and the issues in the case?
THE DEFENDANT: Yes.
MR. JAMES: Just want to correct one thing, Your Honor. Commonwealth's not
agreeing to the no contest. Commonwealth has no legal basis to object to no
contest.
MR. ABAZA: Thank you for the correction.
N.T. 10/18/10, pp. 32-33. Finally, in a third exchange with the District Attorney, Appellant
again confirmed his knowing and voluntary nolo contendere plea:
BY MR. JAMES:
Q: Mr. Dillard, you heard the facts as I read them into the record?
A:Yes.
Q: And you substantially agree with the facts as I read them into the record today?
A: Yes.
Q: And you agree you are guilty of robbery, burglary. You're pleading no contest to
attempted kidnapping and that you agree that you are guilty, in fact, of conspiracy to
commit the robbery of Claire Forte's vehicle?
A: Yes.
N.T. 10/18/10, pp. 39-40. On that same date, we sentenced Appellant to.an aggregated 16 to 32
years' confinement.
5
Appellant did not file post sentence motions or a direct appeal. On September 6, 2011,
Appellant filed his first PCRA petition, which raised issues of ineffective assistance for plea
counsel's failure to preserve Appellant's post sentence motion and direct appellate rights. After
a hearing, we granted Appellant's petition, in part, and ordered that his post-sentence motion
rights and direct appeal rights be reinstated nunc pro tune. On July 30, 2013, Appellant filed a
Motion for Reconsideration of Sentence. On August 2, 2013, Appellant filed a supplemental
post-sentence motion. Following a hearing on December 18, 2013, this Court denied Appellant's
post-sentence motions. Appellant filed a timely Notice of Appeal to the Superior Court on
January 17, 2014. On February 19, 2014, Appellant filed a Statement pursuant to Pennsylvania
Rule of Appellate Procedure l 925(b ), which raised additional ineffective assistance claims. On
March 31, 2015, the Superior Court affirmed Appellant's sentence and held that his ineffective
assistance claims were not ripe for direct appellate review pursuant to Commonwealth v.
Holmes, 79 AJd 562 (Pa. 2013). See Commonwealth v. Dillard, No. 202 EDA 2014 (Pa. Super
Ct. 2015). The Superior Court dismissed his ineffective assistance claims without prejudice to
pursue them on collateral review. Id.
On March 7, 2016, Appellant filed his second PCRA petition. This Court appointed
counsel, and Appellant subsequently filed an Amended PCRA petition on.Aujii.st 10, 2017. In
his Amended Petition, Appellant raised ineffective assistance issues related to plea counsel's
failure to investigate certain exculpatory evidence, and plea counsel's failure to object or
otherwise appeal this Court's nolo contendere colloquy. On October 24, 2017, this Court held a
hearing, and Appellant withdrew all claims on the record except those associated with this
Court's nolo contendere colloquy. This Court ordered the parties to submit letter briefs on the
nolo contendere colloquy claims and took the matter under advisement. On November 30, 2017,
6
after review of the parties' submissions, we denied and dismissed Appellant's Amended Petition.
On December 15, 2017, Appellant filed a timely Notice of Appeal to the Superior Court.
III. MATTERS COMPLAINED OF ON APPEAL
On January 11, 2018, this Court issued an order pursuant to Pennsylvania Rule of
Appellate Procedure 1925(b) directing Appellant to file a Concise Statement of Matters
Complained of on Appeal. On January 31, 2018, Appellant filed such a statement, which raised
the following issues, verbatim:
1. Plea counsel was ineffective for failing to object to the inadequate colloquy given by the
Court as the basis for the entry of the nolo contendere plea. The colloquy on the nolo
contendere did not fully explain to the Defendant what it meant to enter a plea of nolo
contendere and the judge only stated that "you understand that by pleading no contest you
will stand convicted of these crimes just as if you have gone to trial and have been
convicted by them, do you understand that?" There is no further colloquy on effects of
the nolo plea and what it meant as far as an admission of guilt.
2. Plea counsel was ineffective for failing to file an appeal on the inadequate colloquy for
the nolo contendere plea to the kidnapping charges.
3. First PCRA counsel was ineffective for not raising the inadequate nolo contendere plea
colloquy during the initial PCRA petition.
IV. ANALYSIS
Appellant argues that plea counsel was ineffective for failing to object to this Court's
colloquy regarding his nolo contendere plea. Appellant further argues that plea counsel was
ineffective for failing to raise the issue of the allegedly inadequate colloquy on direct appeal, and
that Appellant's initial PCRA counsel was ineffective for failing to raise the same issue in the
first PCRA petition. We find that this Court's colloquy was adequate, that Appellant fully
understood the nature and consequences of pleading nolo contendere, and that Appellant did so
knowingly, voluntarily and intelligently. As a result, neither plea counsel nor initial PCRA
counsel was ineffective for failing to challenge or otherwise appeal this Court's nolo contendere
colloquy.
7
A claim that plea counsel's ineffectiveness caused an involuntary plea must be examined
under the PCRA' s ineffective assistance provision rather than the unlawfully induced plea
provision. Commonwealth v. Hickman 799 A.2d 136 (Pa. Super. Ct. 2002). The Pennsylvania
Supreme Court in Commonwealth v. Pierce established a three-part test for ineffective assistance
claims: (1) the claim must have arguable merit; (2) counsel must have lacked any reasonable
basis for his/her action or omission; and (3) the defendant must have been prejudiced by
counsel's conduct. 527 A.2d 973, 976-77 (Pa. 1987). The test does not employ a hindsight
evaluation of the record and does not consider whether other alternative courses of action were
more reasonable. Commonwealth v. McNeil, 487 A.2d 802, 805 (Pa. 1985) (citations omitted).
Where trial counsel's decisions had a reasonable basis, the balance tips in favor of finding
effective assistance. Id. at 805-06.
A defendant must prove that counsel's ineffectiveness caused him to enter the plea, and
that the resulting plea "question[s] the reliability of the manner in which [Petitioner's] guilt was
determined." Commonwealth v. Lutz, 424 A.2d 1302 (Pa. 1981); Commonwealth v.
Laszczynski, 715 A.2d 1185, 1187 (Pa. Super. Ct. 1998). Ineffective assistance may rise to the
level of unlawful inducement if a defendant establishes a "causal nexus between counsel's
ineffectiveness and the allegedly invalid plea." Commonwealth v. Flood, 627 A.2d 1193, 1199
(Pa. Super. Ct. 1993). Counsel's failure to object to an inadequate guilty plea may constitute a
"causal nexus" under certain circumstances. Commonwealth v. Jones, 640 A.2d 1330, 1335 (Pa.
Super. Ct. 1994 ). In Jones, the Pennsylvania Superior Court held that plea counsel was
ineffective, and the defendant's plea was involuntary, where the trial court failed to apprise the
defendant of the possibility that his sentences could be imposed consecutively, and where plea
8
counsel failed to object to the inadequate colloquy. Id. (citing Commonwealth v. Persinger, 615
A.2d 1305, 1308 (Pa. 1992)).
A valid plea must be knowingly, voluntarily, and intelligently entered. Commonwealth
v. Pollard, 832 A.2d 517, 522 (Pa. Super. Ct. 2003) (citation omitted). "In terms of its effect
upon a case, a plea of a nolo contendere is treated the same as a guilty plea." Commonwealth v.
Lewis, 791, A.2d 1227, 1231 (Pa. Super Ct. 2002) (citations omitted). For a plea to be valid, a
trial court must, at a minimum, conduct an on-the-record colloquy that includes the following
mqumes:
(1) Does the defendant understand the nature of the charges to which he or she is
pleading guilty or nolo contendere?
(2) Is there a factual basis for the plea?
(3) Does the defendant understand that he or she has the right to trial by jury?
(4) Does the defendant understand that he or she is presumed innocent until found guilty?
(5) Is the defendant aware of the permissible range 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?
Ingold, 823 A.2d at 920-21; Pa.R.Crim.P. 590. Tue Court determines whether the plea was
voluntary, knowing, and intelligent based on an examination of the totality of the circumstances.
Commonwealth v. Broadwater, 479 A.2d 526, 532 (Pa. 1984). Even an omission or defect in a
colloquy will not render a guilty or nolo contendere plea invalid if the ''circumstances
surrounding the entry of the plea disclose that the defendant had a full understanding of the
nature and consequences of his plea and that he knowingly and voluntarily decided to enter the
plea." Commonwealth v. Fluharty, 632 A.2d 312, 315 (Pa. Super. Ct. 1993).
9
To withdraw a plea after sentencing, a defendant must make a showing of prejudice
amounting to "manifest injustice." Commonwealth v. Carpenter, 725 A.2d 154, 164 (Pa. 1999).
"A plea rises to the level of manifest injustice when it was entered into involuntarily,
unknowingly, or unintelligently." Ingold, 823 A.2d at 920.
Here, we note initially that Appellant does not claim that the entirety ofthis Court's
colloquy, or at least the portion regarding Appellant's entrance of guilty pleas, was inadequate;
nor does Appellant claim that the entirety of his plea, or his guilty plea alone, was unknowing or
involuntary. We also note that Appellant neither claims his innocence of any of the charges nor
asserts any other prejudice amounting to manifest injustice that would allow him to withdraw his
nolo contendere plea. Rather, Appellant only argues that this Court did not adequately explain
the nature and consequences of his nolo contendere plea to two counts of Attempted Kidnapping.
Consequently, Appellant essentially argues that his nolo contendere plea was unlawfully induced
because plea counsel was ineffective for failing to object to this Court's allegedly defective
colloquy, and that plea counsel's error was the "causal nexus" for the allegedly invalid plea.
Nevertheless, under a totality of the circumstances, Appellant was well aware of the nature and
consequences of entering a nolo contendere plea, and did so knowingly, voluntarily and
intelligently. To that end, plea counsel's actions could not have unlawfully induced an invalid
nolo contendere plea, and prior counsel's failure to appeal this Court's colloquy did not
constitute ineffective assistance of counsel.
In support of his argument that this Court's colloquy as to that plea was inadequate,
-
Appellant relies on the Pennsylvania Supreme Court's ruling in Commonwealth v. Gunter, 771
A.2d 767 (Pa. 2001). See Letter Brief in Support of Petitioner's Amended Post Conviction
Relief Act Petition. However, Appellant's reliance on Gunter is misplaced. In that case, the
10
Court found a defendant's nolo contendere plea involuntary and unknowing where the trial court
administered no oral colloquy. Id. at 769. Instead, the defendant merely answered a written
colloquy form that made no mention of a no contest plea, and contained numerous errors and
altered answers that belied the reliability and validity of the defendant's plea. Id. at 770-71.
Here, unlike the trial court in Gunter, this Court administered a full and thorough
colloquy that addressed all but the final Ingold requirement, as there was no plea agreement.
N.T. 10/18/10, pp. 2, 3, 9-11, 17-27. Additionally, we conducted a separate colloquy that
explained the nature and circumstances of a no contest plea. Id. at 10. In response to all
questions posed to him, Appellant stated that he understood what was being explained to him,
that he was not taking any medications, and that he was not otherwise under the influence of any
drugs or alcohol. Id. at 6. Additionally, Appellant specifically affirmed that he understood this
Court's explanation of the charges, the permissible ranges of sentence, and the various rights he
would relinquish upon entering a plea. Id. at 2-5, 7-15. Appellant further affirmed that he
substantially agreed with the Commonwealth's presentation of the factual basis for the plea. Id.
at 17-27, 39-40. In response to three separate inquiries by this Court, Appellant repeatedly
affirmed that he was satisfied with plea counsel's familiarity with his case. Id. at 6, 31, 32.
Finally, Appellant also affirmed his understanding of the possibility that his sentences as to each
count could be imposed consecutively. Id. at 14.
Specifically regarding the nolo contendere plea, Appellant affirmed that he fully
understood the nature and consequences of a no contest plea in three separate exchanges with the
Court, plea counsel, and the District Attorney. N.T. 10/18/10, pp. 10, 32-33, 39-40.
Specifically, Appellant acknowledged that he and plea counsel discussed the meaning of a nolo
contendere plea at "great length," and that he was satisfied with counsel's familiarity with the
11
issues ·in his case. Id. at 32. Appellant had ample opportunity throughout the proceedings to ask
additional questions, contest the factual basis for the plea, or withdraw the plea entirely. Indeed,
Appellant asked this Court for additional clarification regarding his right of allocution, as
demonstrated by the following exchange:
THE COURT: You exercise your right of allocution. That is, you wish to make a
statement regarding post sentence?
THE DEFENDANT: I don't understand the question.
THE COURT: Do you want to say something before I impose sentence? This is your
chance to say something you wish to say before I impose sentence.
Id. at 40. Further, when the District Attorney discussed Appellant's prior record, the Appellant
specifically contested the Commonwealth's allegation that he was a gang member:
THE COURT: I noticed that your client sort of responded in a negative way to the
allegation that he was a gang member.
MR. ABAZA: That's correct.
THE COURT: Does he deny that?
MR. ABAZA: Yes.
THE COURT: Then I will disregard the comment.
Id. at 27, 30-31. The above exchanges indicate that Appellant was an active participant in the
proceedings such that he could have asked additional questions, corrected erroneous statements,
or moved to withdraw his plea if necessary. Consequently, Appellant had numerous
opportunities to ask additional questions regarding the nature and consequences of a nolo
contendere plea and correct any confusion that remained after this Court's initial colloquy.
Contrary to Appellant's assertions, this Court's succinct statement regarding the
consequences of a nolo contendere plea cannot, standing alone, invalidate Appellant's plea.
Appellant has presented no legal authority, nor is this Court aware of any, to support the claim
12
that this Court's statement regarding that plea was either incorrect or insufficient. Rather, the
totality of the circumstances surrounding the plea, which includes this Court's nolo contendere
colloquy, our complete and thorough guilty plea colloquy, and the numerous exchanges
described above, reveal that Appellant "had a full understanding of the nature and consequences
of his plea and that he knowingly and voluntarily decided to enter the plea." Fluharty, 632 A.2d
at 315. Accordingly, this Court conducted an adequate colloquy that apprised Appellant of the
nature and consequences of entering a nolo contendere plea, and we properly accepted that plea
as knowingly and intelligently entered. Thus, because this Court's colloquy was more than
adequate, Appellant's ineffectiveness claims must fail, as neither plea counsel nor initial PCRA
counsel was ineffective for failing to challenge or otherwise appeal our colloquy. As a result,
Appellant cannot establish a causal nexus between counsel's actions and his resulting nolo
contendere plea such that it rises to the level of unlawful inducement.
V. CONCLUSION
For the foregoing reasons, we respectfully submit that Appellant's argument is without
merit.
BY THE COURT:
13