Com. v. Merk, R.

J-S38035-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ROBERT MERK :
:
Appellant : No. 40 EDA 2022
Appeal from the PCRA Order Entered November 15, 2021,
in the Court of Common Pleas of Philadelphia County,
Criminal Division at No(s): CP-51-CR-0003616-2019.
BEFORE: KUNSELMAN, J., MURRAY, J., and SULLIVAN, J.
MEMORANDUM BY KUNSELMAN, J.: FILED JANUARY 24, 2023
Robert Merk appeals from the order denying without a hearing his first
timely petition filed under the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A.
§§ 9541–9546. We affirm.
The PCRA court set forth the facts of this case as follows:
On Friday, December 28, 2018, [Merk] illegally entered a
house on the 2100 block of Lardner Street. There[, Merk] saw the
decedent, Robert Hicks, and stabbed him in the neck. Officers
responded to the scene around 11:00 P.M. and found decedent
suffering from a stab wound. Decedent was pronounced dead at
the scene by medical personnel. On December 29, 2018, [Merk]
was arrested and charged with [murder, criminal trespass, and
possessing instruments of crime.1]
On May 21, 2019, [Merk] waived his rights to a preliminary
hearing. On June 7, 2019[, Merk’s] case was assigned to The
Honorable Lillian Ransom. On December 18, 2019, [Merk]
entered a negotiated guilty plea [to murder of the third degree,
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1 18 Pa.C.S.A. §§ 2502, 3503(a)(1)(i), and 907(a), respectively.
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18 Pa.C.S.A. § 2502(c), and possessing instruments of crime, 18
Pa.C.S.A. § 907(a)]. A Pre-Sentence [Investigation] and Mental
Health report were ordered, and sentencing was deferred until
February 26, 2020.
On February 26, 2020, Judge Ransom[] imposed the
negotiated sentence[, an aggregate of 19 to 40 years of
imprisonment to run concurrently with the sentence at another
docket. Merk] filed a timely PCRA petition on February 4, 2021
and an amended petition on March 10, 2021. [Merk’s first] PCRA
attorney filed a Finley[2] letter on September 22, 2021. [The PCRA
court entered notices of intent to dismiss Merk’s petition without
a hearing on September 27 and October 12 and 14, 2021. See
Pa.R.Crim.P. 907.] The order dismissing the PCRA petition was
filed on November 15, 2021. [Merk] filed a Notice of Appeal to
the Superior Court on December 9, 2021. Gina A. Amoriello, Esq.
became [Merk’s] new PCRA attorney and filed a Statement Of
Matters Complained About On Appeal on June 11, 2021.
PCRA Court Opinion, 6/30/22, at 1–2.
Merk raises one issue for review3:
Did the [PCRA] court err in dismissing this timely PCRA petition
without a hearing when [Merk] established a prima facie case of
ineffective assistance of counsel by alleging the following:
(a) rendering a promise of a plea bargain carrying lesser time if
the preliminary hearing was waived;
(b) never providing discovery to [Merk];
(c) never visiting [Merk] in custody;
(d) blocking and/or not accepting [Merk’s] telephone calls,
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2 Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
3 The PCRA court opinion phrases Merk’s issue differently, omitting his claim
that the PCRA court erred by dismissing his petition without a hearing. PCRA
Court Opinion, 6/30/22, at 2–3. (Merk’s Rule 1925(b) statement and brief
both articulate his issue as reproduced in this memorandum. This discrepancy
has no impact on our review.
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all of which would render the guilty plea to be not knowingly,
intelligently nor voluntarily entered?
Merk’s Brief at 4 (capitalization omitted, formatting altered).
This Court’s standard of review for an order dismissing a PCRA petition
calls for us to “determine whether the ruling of the PCRA court is supported
by the evidence and free of legal error. The PCRA court’s factual findings will
not be disturbed unless there is no support for the findings in the certified
record.” Commonwealth v. Webb, 236 A.3d 1170, 1176 (Pa. Super. 2020)
(citing Commonwealth v. Barndt, 74 A.3d 185, 191–92 (Pa. Super. 2013)).
The PCRA court has discretion to dismiss a petition without
a hearing when the court is satisfied that there are no genuine
issues concerning any material fact, the defendant is not entitled
to post-conviction collateral relief, and no legitimate purpose
would be served by further proceedings. [See Pa.R.Crim.P.
909(B)(2).] To obtain reversal of a PCRA court’s decision to
dismiss a petition without a hearing, an appellant must show that
he raised a genuine issue of fact which, if resolved in his favor,
would have entitled him to relief, or that the court otherwise
abused its discretion in denying a hearing.
Commonwealth v. Blakeney, 108 A.3d 739, 750 (Pa. 2014) (citations
omitted). Regarding a claim that counsel was ineffective:
It is well-established that to succeed on a claim asserting
the ineffective assistance of counsel, the petitioner must plead and
prove, by a preponderance of the evidence, three elements: (1)
the underlying claim has arguable merit; (2) counsel had no
reasonable basis for his or her action or inaction; and (3) the
petitioner suffered prejudice as a result of counsel’s action or
inaction. Commonwealth v. Pierce, 527 A.2d 973, 975–76 (Pa.
1987). If a petitioner fails to satisfy any of the three prongs of
the ineffectiveness inquiry, his claim fails. Commonwealth v.
Brown, 196 A.3d 130, 150–51 (Pa. 2018).
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Commonwealth v. Parrish, 273 A.3d 989, 1003 n.11 (Pa. 2022) (citation
formatting altered).
With respect to claims that plea counsel was ineffective:
Ineffective assistance of counsel claims arising from the
plea-bargaining process are eligible for PCRA review. 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. 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.
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)[.]
Commonwealth v. Kelley, 136 A.3d 1007, 1012–13 (Pa. Super. 2016)
(some citations omitted). Notably, a PCRA petitioner cannot assert grounds
for withdrawing a guilty plea that contradict his statements made under oath
in a guilty plea colloquy. Commonwealth v. Willis, 68 A.3d 997, 1009 (Pa.
Super. 2013) (citing Commonwealth v. Turetsky, 925 A.2d 876 (Pa. Super.
2007)).
Here, Merk argues that his pro se amended petition established a prima
facie case that his plea counsel was ineffective. Merk’s Brief at 8–9.
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Therefore, he concludes the PCRA court should not have dismissed his petition
without an evidentiary hearing. Id. Merk suggests in one sentence that his
first PCRA counsel should have investigated and obtained documents in
support of Merk’s allegations rather than file a no-merit letter. Id. at 8.
The Commonwealth counters that because Merk has not made an offer
of proof as to how his plea counsel was ineffective, the PCRA court properly
denied his petition. Commonwealth’s Brief at 5–6. It reasons that Merk’s oral
and written statements when he pled guilty contradict his post-conviction
claims. Id. at 7–8. The Commonwealth adds that Merk’s claim about his first
PCRA counsel’s ineffectiveness is not sufficiently developed to warrant relief.
Id. at 9–11.
The PCRA court, in addressing Merk’s underlying ineffectiveness claims,
first concluded that Merk provided no evidence to support that his plea counsel
had promised any lesser sentence. PCRA Court Opinion, 6/30/22, at 4–5. It
further determined that Merk’s remaining claims were refuted by Merk’s
statement when he entered his guilty plea that he was satisfied with his
lawyer. Id. at 5.
We conclude that Merk’s pro se PCRA petitions did not raise any genuine
issues of material fact that, if established, would have entitled him to relief.
Therefore, the PCRA court did not err in denying Merk’s petitions without a
hearing.
Merk’s first allegation was that his plea counsel initially promised an
agreement for a 12½-to-25-year sentence if Merk waived his preliminary
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hearing, but after he waived it, counsel said the offer was 19 to 40 years. Pro
se petition, 2/4/21.4 Merk stated that he would not have waived his
preliminary hearing “if that deal was never on the table.” Id. He does not
provide how this alleged ineffectiveness prejudiced him. Even accepting that
Merk would not have waived his preliminary hearing if his prior counsel had
told him only about the longer offer, Merk does not state how this could have
resulted in a different outcome. When he entered his guilty plea, Merk
acknowledged the potential maximum sentence as well as the 19-to-40-year
agreement. Written Guilty Plea Colloquy, 12/18/19, at 1; N.T., 12/18/19, at
7,5 12. Because Merk understood the ultimate agreement, counsel’s prior
statements do not render his plea involuntary or unknowing. Kelley, supra;see Commonwealth v. McBride, 570 A.2d 539, 540–41 (Pa. Super. 1990)
(rejecting a claim of ineffectiveness for waiving a preliminary hearing because
the petitioner showed no prejudice). Therefore, there is no genuine issue of
material fact with respect to this claim.
Nor do Merk’s remaining claims raise a genuine issue of material fact.
Merk alleged in his amended petition that his prior counsel never provided
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4 Merk’s initial PCRA “petition” consists of a one-page hand-printed document
in which he states that, after waiving the preliminary hearing, the
Commonwealth’s offer was “20 to 40” years. It is clear from the record,
however, that Merk was referring to the actual negotiated sentence he
received of 19 to 40 years of incarceration.
5 After the plea court initially misstated that the agreement was “no more …
than 19, no more than 40 years,” N.T., 12/18/19, at 7, it later gave the correct
agreement, id. at 12. The written colloquy also provides the correct terms.
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discovery to him, never visited him in jail, and blocked all telephone contact
with him, see Pro se amended petition, 3/10/21, at 2.6 However, these
allegations contradict Merk’s statements during his guilty plea colloquy that
he fully discussed his case with his attorney and was satisfied with his
representation until then. N.T., 12/18/19, at 13; Written guilty plea colloquy,
12/18/19, at 3. Because Merk testified during his guilty plea that he had the
opportunity to discuss his case fully with his attorney, and was satisfied with
the job he did, he cannot now claim otherwise. Willis, supra. Because he
would not be able to withdraw his plea on these bases, Merk has not raised a
genuine issue of material fact to establish that plea counsel was ineffective.
Therefore, the PCRA court did not err in dismissing Merk’s petition without a
hearing
We also address Merk’s suggestion that his first PCRA counsel should
have investigated and obtained documents instead of filing a no-merit letter.
To enforce the right to effective PCRA counsel, our Supreme Court has
instructed that a PCRA petitioner may “raise claims of PCRA counsel’s
ineffectiveness at the first opportunity to do so, even if on appeal.”
Commonwealth v. Bradley, 261 A.3d 381, 401 (Pa. 2021). To warrant
relief on this claim, Merk “must provide more than mere boilerplate assertions
of PCRA counsel’s ineffectiveness. That is, he must establish that there are
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6 It is not clear where present counsel found that Merk complained that he did
not receive discovery. Regardless, as described above, a lack of discovery is
not a genuine issue of material fact because Merk has not stated how it would
render his plea involuntary or unknowing.
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issues of material facts concerning claims challenging counsel’s stewardship
and that relief may be available.” Parrish, 273 A.3d at 1006 (citing Bradley,
261 A.3d at 402). To prevail on a layered ineffectiveness claim, this means
establishing each prong—arguable merit, lack of reasonable basis, and
prejudice—for both his plea counsel and his first PCRA counsel. Id. at 1003
n.11 (citing Commonwealth v. McGill, 832 A.2d 1014, 1022–23 (Pa. 2003)).
Merk has failed to establish issues of material fact that would entitle him
to withdraw his plea if proven. As noted above, Merk is unable to show that
his plea counsel’s stewardship prejudiced him. Because Merk’s plea counsel
was not ineffective, there is no arguable merit to a challenge to the actions of
his first PCRA counsel. Id. at 1023 (“If the petitioner does not satisfy [that
his first counsel was ineffective], the layered ineffectiveness claim (as to
[PCRA counsel’s] ineffectiveness . . . necessarily fails, and relief must be
denied.”). Therefore, there is no need for us to remand for the PCRA court to
assess Merk’s first PCRA counsel’s stewardship.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/24/2023
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