Com. v. Meletiche, G.

J-S60045-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
GEORGE MELETICHE :
:
Appellant : No. 1049 MDA 2019
Appeal from the PCRA Order Entered June 11, 2019
In the Court of Common Pleas of Berks County Criminal Division at
No(s): CP-06-CR-0004403-2015
BEFORE: SHOGAN, J., STABILE, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: FILED NOVEMBER 26, 2019
George Meletiche (Meletiche) appeals pro se from the order entered in
the Court of Common Pleas of Berks County (PCRA court) dismissing his
petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§
9541-9546, without a hearing. We affirm.
I.
In 2015, Meletiche was charged with over 100 counts of various offenses
for his involvement in a multi-county drug trafficking conspiracy. Along with
multiple co-defendants, he proceeded to an October 2017 jury trial that ended
in a mistrial due to the Commonwealth failing to give notice of changes it
made to a PowerPoint presentation it had used throughout the trial. Meletiche
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* Retired Senior Judge assigned to the Superior Court.
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filed a motion to dismiss and bar retrial based on the mistrial, but the trial
court dismissed it for failing to state specific facts alleging misconduct.
Rather than proceed to a retrial, on February 1, 2018, Meletiche entered
into a negotiated plea agreement with the Commonwealth that dealt with six
counts of the 108 in the original information. The counts that he pled guilty
were to Corrupt Organizations, Persons Not to Possess Firearms, Possession
with Intent to Deliver (PWID) (three counts), and Conspiracy.1 Based on the
agreement, Meletiche was sentenced to five to ten years’ imprisonment
concurrently on each count. After sentencing, Meletiche did not file any post-
sentence motions or a direct appeal.
On October 23, 2018, Meletiche filed a pro se PCRA petition and was
appointed counsel who later filed a motion to withdraw with a Turner/Finley
no merit letter.2 The PCRA court granted the motion to withdraw and issued
notice of its intent to dismiss the PCRA petition without a hearing under
Pa.R.Crim.P. 907(a)(1). After Meletiche filed a response, the PCRA court
entered its order dismissing the petition. Meletiche timely appealed and listed
one issue in his Pa.R.A.P. 1925(b) statement that trial counsel was ineffective
for coercing him into accepting the guilty plea.
____________________________________________
118 Pa.C.S. § 911(b)(1), 18 Pa.C.S. § 6501(a)(1), 35 P.S. § 780-113(a)(30),
and 18 Pa.C.S. § 903(a). All remaining counts were dismissed.
2 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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II.
On appeal, Meletiche contends that he is entitled to withdraw his guilty
plea based on his claim of ineffective assistance of counsel as well as his actual
innocence. He also contends that the PCRA court erred in dismissing his
motion to dismiss based on double jeopardy because there was clear evidence
that the Commonwealth’s conduct in introducing evidence that it failed to
present to the defense during discovery was done in a malicious and
intentional manner.
A.
For his first issue, it is not entirely clear under what grounds Meletiche
is seeking collateral relief. His question presented states that he is entitled to
withdraw his plea based on ineffectiveness of counsel, and he specifically
argues in his brief that his claim is cognizable under 42 Pa.C.S. §
9543(a)(2)(ii). Meletiche’s Brief at 6. Regarding such claims, this Court has
observed, “all constitutionally cognizable ineffectiveness claims are cognizable
under the PCRA without regard to innocence, involving cases involving guilty
pleas.” Commonwealth v. Lynch, 820 A.2d 728, 732 (Pa. Super. 2003).
Despite this, Meletiche also asserts that he is innocent of the charges and that
the PCRA Court erred by not granting an evidentiary hearing to address this
claim. By so arguing, Meletiche appears to argue that he was unlawfully
induced to plead guilty by his counsel and that he is innocent, which would be
a cognizable claim under 42 Pa.C.S. § 9543(a)(2)(iii). Out of an abundance
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of caution, we will review Meletiche’s first issue under the standards for both
ineffectiveness of counsel under § 9543(a)(2)(ii) and unlawful inducement
under § 9543(a)(2)(iii).
To the extent Meletiche challenges the effectiveness of his plea counsel,
we review such claims under the following guidelines:
It is well-established that counsel is presumed effective, and to
rebut that presumption, the PCRA petitioner must demonstrate
that counsel’s performance was deficient and that such deficiency
prejudiced him. To prevail on an ineffectiveness claim, the
petitioner has the burden to prove that (1) the underlying
substantive claim has arguable merit; (2) counsel whose
effectiveness is being challenged did not have a reasonable basis
for his or her actions or failure to act; and (3) the petitioner
suffered prejudice as a result of counsel’s deficient performance.
The failure to satisfy any one of the prongs will cause the entire
claim to fail.
Commonwealth v. Benner, 147 A.3d 915, 920 (Pa. Super. 2016) (quotation
marks, quotations and citations omitted).
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.
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.
The reasonable probability test is not a stringent one; it merely
refers to a probability sufficient to undermine confidence in the
outcome.
Commonwealth v. Barndt, 74 A.3d 185, 192 (Pa. Super. 2013) (citations
and internal quotation marks omitted).
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In his brief, Meletiche claims he instructed counsel to prepare for retrial
but his counsel threatened to withdraw if he did not accept the plea. According
to Meletiche, if counsel had not threatened to withdraw, then he would have
never pleaded guilty. See Meletiche’s Brief at 7-8. However, this is not
grounds for ineffective assistance of counsel. If the trial court permitted
counsel to withdraw, Meletiche would have been entitled to new counsel,
either privately-retained or court-appointed, to represent him at the eventual
retrial. That his counsel was unwilling to do the retrial does not mean that
Meletiche was coerced into pleading guilty, and Meletiche cites to no case law
to support such a notion.
Moreover, Meletiche affirmatively stated at the guilty plea hearing that
he was choosing to plead and was satisfied with his attorney’s representation.
See N.T. Guilty Plea and Sentencing, 2/1/18, at 4. A criminal defendant “is
bound by [any] statements” made during a plea colloquy since they were
“made in open court while under oath,” and thus, a defendant cannot assert
“grounds for withdrawing the plea which contradict the statements” made at
the plea colloquy. Commonwealth v. Willis, 68 A.3d 997, 1009 (Pa. Super.
2013). While Meletiche may be displeased with the outcome of his decision
to enter into the plea agreement, he cannot obtain relief by claiming that he
felt coerced by counsel to plead guilty. See Commonwealth v. Brown, 48
A.3d 1275, 1278 (Pa. Super. 2012). Thus, to the extent he is claiming
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ineffectiveness of counsel in connection with his guilty plea, the PCRA Court
did not abuse its discretion in denying his claim without hearing.
Likewise, to the extent Meletiche raises a claim of unlawful inducement,
it also fails. Under the PCRA, the petitioner must plead and prove by a
preponderance of the evidence that his conviction or sentence resulted from
a guilty plea “unlawfully induced where the circumstances make it likely that
the inducement caused the petitioner to plead guilty and the petitioner is
innocent.” 42 Pa.C.S. § 9543(a)(2)(iii). “A valid plea must be knowingly,
intelligently, and voluntarily entered.” See Commonwealth v. Kelly, 136
A.3d 1007, 1013 (Pa. Super. 2016) (citation omitted).
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
the totality of the circumstances surrounding the entry of that
plea.
Id. (citations omitted); see also Pa.R.Crim.P. 590.
Based on our review, Meletiche’s guilty plea colloquy, both written and
oral, covered all of the requirements for a valid guilty plea as outlined above.
N.T. Guilty Plea and Sentencing, 2/1/18, at 2-6. This included the factual
basis for the charges in which Meletiche admitted to acting as the principal of
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the “Meletiche Guzman drug organization.” Id. at 5. As he concedes in his
brief, Meletiche did not voice any concerns at the hearing that he was being
coerced into pleading guilty or that he was innocent of the charges.
In addition, Meletiche fails to specify what, if any, unlawful inducement
his counsel made causing him to plead guilty despite his innocence. As
discussed, Meletiche merely claims that his privately-retained counsel would
have withdrawn if he insisted on going to trial again. Meletiche has not alleged
or identified any deficient performance or incorrect representations that were
made by counsel that caused him to enter an involuntary plea. We also note
that Meletiche’s innocence claim is confined to two sentences in which he
baldly claims that the charges against him were based on “conjecture and
speculation.” Meletiche’s Brief at 7. Besides this claim being contradicted by
his admission to guilt during the colloquy, it is insufficient to support a claim
under 42 Pa.C.S. § 9543(a)(2)(iii). Accordingly, the PCRA Court did not err
in dismissing Meletiche’s claim without hearing.
B.
Next, Meletiche argues the trial court erred in dismissing his motion to
dismiss following mistrial. However, as the Commonwealth points out in its
brief, Meletiche did not include this issue in his Pa.R.A.P. 1925(b) statement.
The issue is thus waived. See Pa.R.A.P. 1925(b)(4)(vii); Commonwealth v.
Hill, 16 A.3d 484, 494 (Pa. 2011) (“Any issues not raised in a Pa.R.A.P.
1925(b) statement will be deemed waived.”) (quotation omitted).
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Even if not waived and properly presented in an effectiveness of counsel
claim under 42 Pa.C.S. § 9543(a)(2)(ii), we would find the claim to be
meritless. While double jeopardy issues usually raise a question of
constitutional law with a de novo standard of review, we apply a more
deferential standard to the trial court’s factual findings to the extent they
impact its double jeopardy ruling:
Where issues of credibility and weight of the evidence are
concerned, it is not the function of the appellate court to substitute
its judgment based on a cold record for that of the trial court. The
weight to be accorded conflicting evidence is exclusively for the
fact finder, whose findings will not be disturbed on appeal if they
are supported by the record.
Commonwealth v. Wood, 803 A.2d 217, 220 (Pa. Super. 2002) (quotation
omitted). In this case, when the trial court determined that a mistrial was
appropriate, it also found that the Commonwealth had not caused it through
misconduct, stating that it was not “ascribing any bad motives to anyone.”
N.T. Jury Trial, Vol. III, at 885. Instead, the trial court determined mistrial
was warranted because it would be too confusing for the jury if it allowed the
Commonwealth to correct its mistake. Meletiche’s argument cites neither case
law nor any record evidence to support his argument that the Commonwealth
intentionally caused the mistrial. As a result, even if this issue were properly
presented and preserved, we would not substitute our judgment for the trial
court’s factual finding.
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Order affirmed.
Judge Shogan joins the memorandum
Judge Stabile concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/26/2019
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