Com. v. Glass, C.

J-S48029-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
CEDRIC ANTONIO GLASS,
Appellant No. 330 MDA 2014
Appeal from the PCRA Order January 15, 2014
in the Court of Common Pleas of Lackawanna County
Criminal Division at No.: CP-35-CR-0001866-2011
BEFORE: DONOHUE, J., JENKINS, J., and PLATT, J.*
DISSENTING MEMORANDUM BY PLATT, J.: FILED FEBRUARY 09, 2015
Because I conclude that Appellant has not shown that he is entitled to
an evidentiary hearing, I respectfully dissent. I would affirm the decision of
the trial court dismissing Appellant’s PCRA.
A PCRA court is only required to hold a hearing where the
petition, or the Commonwealth’s answer, raises an issue of
material fact. When there are no disputed factual issues, an
evidentiary hearing is not required. If a PCRA petitioner’s offer
of proof is insufficient to establish a prima facie case, or his
allegations are refuted by the existing record, an evidentiary
hearing is unwarranted.
Commonwealth v. Eichinger, --- A.3d ---, 2014 WL 7404546, at *23 (Pa.
Super. December 31, 2014) (citations omitted).
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
J-S48029-14
Here, while correctly finding three of Appellant’s four issues waived,
the learned Majority remands for an evidentiary hearing on the remaining
issue, claiming that the trial court should not have dismissed Appellant’s
PCRA petition without a hearing because “certain questions remain” about
counsel’s failure to request a PSI. (Majority, at 6; see also Majority, at 5).
For the reasons discussed below, I disagree that Appellant has demonstrated
that there are any issues of material fact with respect to his vague and bald
claim that plea counsel was ineffective for failing to request a Pre-Sentence
Investigation Report
In his pro se PCRA petition Appellant argued that plea counsel was
ineffective for not requesting a PSI because counsel: “fail[ed] to inform
[him] of severity of [his] guilty plea without having a pre-sentence
investigation conducted first.” (PCRA petition, 11/27/12, at 7). The record
belies this claim, because it shows that the trial court informed Appellant of
the maximum sentences and then sentenced him well below the statutory
maximums in the standard range. (See N.T. Plea Hearing, 1/27/12, at 4,
6).
Further, at the plea hearing, Appellant stated that he was satisfied
with counsel’s representation; made no objection to proceeding to
immediate sentencing; and requested that the sentencing court make him
eligible for either boot camp or RRRI, and the sentencing court granted that
request. (See id. at 3, 5-6). Following sentencing, Appellant asked the
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court to explain the sentence, which it did; Appellant then thanked the court.
(See id. at 6-7).
The statements made during a plea colloquy bind a criminal defendant.
See Commonwealth v. Muhammad, 794 A.2d 378, 384 (Pa. Super.
2002). A defendant cannot assert grounds for withdrawing the plea that
contradict statements made at that time. See Commonwealth v. Stork,
737 A.2d 789, 790-91 (Pa. Super. 1999), appeal denied, 764 A.2d 1068 (Pa.
2000). Thus, Appellant cannot now assert that counsel was ineffective for
failing to request a PSI. See Muhammad, supra at 384; Stork, supra at
790-91.
Further, to the extent it can be determined from Appellant’s vague
argument, he appears to claim that plea counsel was ineffective for failing to
insist on a PSI because: (1) “necessary information” was not presented to
the sentencing court; (2) and the sentencing court “sentenced [Appellant] to
a period of incarceration of more than one (1) year”. (Appellant’s Brief, at
15-16). Appellant never specifies what “necessary information” was lacking
or how that information would have caused the trial court to impose a lesser
sentence. See id.; see also Commonwealth v. Johnson, 517 A.2d 1311,
1317 (Pa. Super. 1986) (counsel only ineffective for failing to request PSI
where contents of report would have caused sentencing court to impose
lesser sentence).
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Moreover, I note that Appellant did not file a post-sentence motion or
direct appeal challenging the discretionary aspects of sentence. Neither
does Appellant contend that plea counsel was ineffective for failing to file a
direct appeal challenging the discretionary aspects of sentence.
It is settled that bald allegations of ineffective assistance of counsel do
not entitle an appellant to relief. See Commonwealth v. Timchak, 69
A.3d 765, 774 (Pa. Super. 2013). Here, because Appellant has offered
nothing but vague allegations that a PSI was necessary, I do not believe he
has met the threshold for holding an evidentiary hearing. See Timchak,
supra at 774; McLaurin, supra at 1135-36; Johnson, supra at 1317.
Therefore, I would affirm the decision of the trial court.
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