Com. v. Smith, R.

J-S48018-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RODNEY SMITH :
:
Appellant : No. 699 EDA 2017
Appeal from the PCRA Order January 26, 2017
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0008634-2013
BEFORE: DUBOW, J., MURRAY, J., and PLATT*, J.
MEMORANDUM BY MURRAY, J.: FILED AUGUST 28, 2018
Rodney Smith (Appellant) appeals from the order dismissing his petition
filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-
9546. We affirm.
The underlying convictions in this case stem from a March 12, 2013
home invasion during which Appellant and another individual forced the victim
to play “Russian Roulette” in front of her children. On January 15, 2014,
Appellant entered an open guilty plea to the charges of aggravated assault,
robbery, burglary, conspiracy, possession of an instrument of crime, and two
violations of the Uniform Firearms Act. In exchange for Appellant’s guilty plea,
the Commonwealth dropped the charge of attempted murder. The remaining
charges were nolle prossed.
During the guilty plea colloquy the trial court informed Appellant, inter
alia, that he was facing up to 152 years of incarceration if he did not plead
____________________________________
* Retired Senior Judge assigned to the Superior Court.
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guilty and was convicted of all crimes with which he was charged; that his
prior record score was two; that the guideline sentence was 54 to 66 months
if he did plead guilty and had several of his charges nolle prossed; and that,
ultimately, the court could not make any guarantees as to his sentence
because it would depend on his full pre-sentence investigation (PSI) report.
As it turns out, Appellant’s actual prior record score was four (not two) making
the guideline sentence 66 to 78 months (not 54 to 66 months) if he pled guilty.
Plea counsel did not correct these mistakes prior to Appellant’s plea.
On March 18, 2014, with the benefit of a PSI report, the trial court
sentenced Appellant to an aggregate term of nine to eighteen years of
incarceration. Appellant did not file any post-sentence motions or a direct
appeal.
On December 11, 2014, Appellant filed a timely pro se PCRA petition.
On July 17, 2015, the PCRA court appointed counsel, who filed an amended
petition on Appellant’s behalf on December 20, 2015. Appellant asserted that
plea counsel was ineffective for failing to ensure that the trial court properly
informed him of his prior record score and guideline sentence, and
consequently, his guilty plea was not knowing, voluntary, or intelligent. On
November 18, 2016, the Commonwealth filed a motion to dismiss Appellant’s
PCRA petition, which the PCRA court granted on January 26, 2017.
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On February 18, 2017, Appellant timely appealed to this Court. Both
the PCRA court and Appellant have complied with Rule 1925 of the
Pennsylvania Rules of Appellate Procedure.
On appeal, Appellant raises the following issue for review: “Did the
PCRA Court err when it dismissed [Appellant]’s [a]mended [p]etition without
holding an [e]videntiary [h]earing?” Appellant’s Brief at 3. More specifically,
Appellant argues that the PCRA court erred in dismissing his ineffective
assistance of counsel claim as it relates to his guilty plea.
In deciding ineffective assistance of counsel claims, we begin with the
presumption that counsel rendered effective assistance. Commonwealth v.
Bomar, 104 A.3d 1179, 1188 (Pa. 2014). To overcome that presumption,
the petitioner must establish: “(1) the underlying claim has arguable merit;
(2) no reasonable basis existed for counsel’s action or failure to act; and (3)
the petitioner suffered prejudice as a result of counsel’s error, with prejudice
measured by whether there is a reasonable probability that the result of the
proceeding would have been different.” Id. (citation omitted). To
demonstrate prejudice in an ineffective assistance of counsel claim, “the
petitioner must show that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different.” Commonwealth v. King, 57 A.3d 607, 613 (Pa. 2012). If the
petitioner fails to prove any of these prongs, the claim is subject to dismissal.
Bomar, 104 A.3d at 1188.
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“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) (quotations and citation
omitted). “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.” Id.
(quotations and citations omitted). “Thus, to establish prejudice, the
defendant 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) (quotations and citations omitted). “The reasonable probability test is
not a stringent one; it merely refers to a probability sufficient to undermine
confidence in the outcome.” Id. (quotations and citations omitted).
With respect to valid guilty pleas, this Court has explained:
A valid guilty plea must be knowingly, voluntarily and intelligently
entered. 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. 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. This Court will evaluate the adequacy of the plea
colloquy and the voluntariness of the resulting plea by examining
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the totality of the circumstances surrounding the entry of that
plea.
Commonwealth v. Kelley, 136 A.3d 1007, 1013 (Pa. Super. 2016) (citations
omitted); see also Pa.R.Crim.P. 590.
Appellant contends that his guilty plea was invalid because during the
colloquy, the trial court informed him of the wrong prior record score and
guideline sentence and plea counsel did not correct these mistakes. Appellant
asserts that, consequently, his guilty plea was not knowing, voluntary, and
intelligent.
The record reflects that during his guilty plea colloquy, the trial court
specifically addressed with Appellant the subjects required by Rule 590 of the
Pennsylvania Rules of Criminal Procedure, including that Appellant understood
the nature of the charges to which he pled guilty, the factual basis for the
plea, that he had the right to trial by jury, that he is presumed innocent until
found guilty, and that the trial court was not bound by the terms of the plea
agreement. N.T., 1/15/14, at 14-22; Written Plea Colloquy, 1/15/14.
With respect to Appellant’s sentence, the trial court concedes that it
incorrectly informed him of his prior record score (two instead of four), and as
a result, that it also informed him of the incorrect guideline sentence
associated with the charges to which he intended to plead guilty (54 to 66
months instead of 66 to 78 months). See Trial Court Opinion, 12/12/17, at
4-7; N.T., 1/15/14, at 5-9. Nevertheless, there is no dispute that prior to his
guilty plea, the trial court correctly informed Appellant that he was facing up
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to 152 years of incarceration if he did not plead guilty. Id. at 5. Furthermore,
the trial court explicitly informed Appellant that by entering an open guilty
plea, ultimately, the court would have to base the sentence on the PSI report.
Id. at 7.
Based on the totality of the circumstances, we conclude that Appellant’s
guilty plea was knowing, voluntary, and intelligent, and that plea counsel’s
failure to ensure the trial court informed Appellant of the correct prior record
score and sentencing guidelines did not invalidate the plea. While the trial
court incorrectly informed Appellant of his prior record score and the guideline
sentence prior to his guilty plea, the court did so with the caveat that
ultimately, the court would determine his sentence based on the PSI report.
Appellant makes no claim that had the trial court told him the proper prior
record score and sentencing guidelines, he would not have pled guilty.
Moreover, our Supreme Court has explained:
[T]he decision to plead guilty to a charge could not be accepted
as being knowingly and intelligently entered without an assurance
that the accused fully comprehended the maximum punishment
that might be imposed for his conduct. This information is
obviously an integral part of the knowledge that should be
possessed by one who is called upon to make the difficult decision
whether to surrender his right to trial and to place himself at the
mercy of the sentencing court.
Commonwealth v. Kulp, 382 A.2d 1209, 1211 (Pa. 1978). As discussed
above, there is no dispute that the trial court correctly informed Appellant of
his maximum possible sentence. N.T., 1/15/14, at 5.
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In sum, the error by the trial court of informing Appellant of the incorrect
prior record score and guideline sentence does not rise to a level of manifest
injustice that would permit Appellant to withdraw his guilty plea. See
Commonwealth v. Kehr, 180 A.3d 754, 756 (2018) (explaining that a
defendant must demonstrate a “manifest injustice” in order to withdraw a
guilty plea post-sentence); Commonwealth v. Broaden, 980 A.2d 124, 129
(Pa. Super. 2009) (“Manifest injustice may be established if the plea was not
tendered knowingly, intelligently, and voluntarily.” . . . A plea deficient in one
respect “does not per se establish prejudice on the order of manifest
injustice.”). Because the record supports the PCRA court’s determination that
Appellant’s guilty plea was knowing, voluntary, and intelligent, we conclude
that the trial court did not err in determining that Appellant’s PCRA petition
lacked merit.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/28/18
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