Com. v. Jordan, D.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DAMAR LAMONT JORDAN,
Appellant No. 1462 WDA 2014
Appeal from the PCRA Order Entered September 2, 2014
In the Court of Common Pleas of Erie County
Criminal Division at No(s): CP-25-CR-0003348-2012
BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, and WECHT, JJ.
MEMORANDUM BY SHOGAN, J.: FILED MAY 22, 2015
Appellant, Damar Lamont Jordan, appeals from the order denying his
petition for relief filed pursuant to the Post Conviction Relief Act (“PCRA”),
42 Pa.C.S. §§ 9541-9546. In addition, counsel has filed an application
seeking to withdraw. We grant counsel’s application to withdraw and affirm
the order of the PCRA court.
A prior panel of this Court summarized the factual and procedural
history of this case as follows:
On September 30, 2012, in the 600 block of Wallace
Street, [Appellant] shot and killed Kendall Bryant and seriously
wounded Ramone Lemon. N.T., 4/25/13, at 7-8. Thereafter,
the Commonwealth charged [Appellant] with murder (18
Pa.C.S.A. § 2501(a)), attempted murder (18 Pa.C.S.A. §§ 901,
2501(a)), two counts of aggravated assault (18 Pa.C.S.A. §
2702(a) (1)), two counts of recklessly endangering another
person (18 Pa.C.S.A. § 2705), possessing an instrument of crime
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(18 Pa.C.S.A. § 907(a)) and firearms not to be carried without a
license (18 Pa.C.S.A. § 6106(a)(1)).
[Appellant] pled guilty pursuant to an open plea to third-
degree murder and aggravated assault. In exchange, the
Commonwealth withdrew all other charges. On June 20, 2013,
the trial court sentenced [Appellant] to serve 180 to 360 months
of imprisonment for his conviction of third-degree murder and 66
to 132 months of imprisonment for his conviction of aggravated
assault. The trial court imposed the term of imprisonment for
aggravated assault consecutively to the term of imprisonment
for third-degree murder.
On July 2, 2013, the trial court denied [Appellant’s] motion
to modify his sentence.1 Thereafter, [Appellant] filed a timely
notice of appeal followed by a court-ordered Pa.R.A.P. 1925(b)
statement. The trial court filed its Pa.R.A.P. 1925(a) opinion on
September 6, 2013.
1
Our thorough review of the certified record on
appeal reveals that [Appellant’s] counsel never filed
the motion to modify sentence of record.
Commonwealth v. Jordan, 1255 WDA 2013, 97 A.3d 102 (Pa. Super. filed
February 11, 2014) (unpublished memorandum at 1-2). This Court affirmed
Appellant’s judgment of sentence. Id. Appellant did not file a petition for
allowance of appeal to the Pennsylvania Supreme Court.
On June 16, 2014, Appellant filed a timely PCRA petition. Counsel was
appointed and filed a supplemental PCRA petition. Supplemental PCRA
Petition, 7/28/14. On July 31, 2014, the PCRA court issued an opinion and
notice of intent to dismiss the petition pursuant to Pa.R.Crim.P. 907(1).1 On
____________________________________________
1
In the opinion, the PCRA court amended its sentencing order as to
restitution. The initial restitution ordered for counts one and two was
(Footnote Continued Next Page)
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September 2, 2014, the PCRA court entered its final order denying collateral
relief. On September 5, 2014, Appellant filed a notice of appeal. The PCRA
court issued a Pa.R.A.P. 1925(a) opinion, relying on the analysis provided in
its notice of intent to dismiss.
On December 9, 2014, PCRA counsel filed a motion to withdraw as
counsel; she also filed with this Court a Turner/Finley2 document. When
counsel seeks to withdraw representation in a collateral appeal, the following
conditions must be met:
1) As part of an application to withdraw as counsel, PCRA
counsel must attach to the application a “no-merit” letter[;]
2) PCRA counsel must, in the “no-merit” letter, list each claim
the petitioner wishes to have reviewed, and detail the nature
and extent of counsel’s review of the merits of each of those
claims[;]
3) PCRA counsel must set forth in the “no-merit” letter an
explanation of why the petitioner’s issues are meritless[;]
4) PCRA counsel must contemporaneously forward to the
petitioner a copy of the application to withdraw, which must
include (i) a copy of both the “no-merit” letter, and (ii) a
statement advising the PCRA petitioner that, in the event the
trial court grants the application of counsel to withdraw, the
petitioner has the right to proceed pro se, or with the assistance
of privately retained counsel;
_______________________
(Footnote Continued)
combined and assigned to count one only. No restitution remained at Count
two.
2
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finely, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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5) The court must conduct its own independent review of the
record in light of the PCRA petition and the issues set forth
therein, as well as of the contents of the petition of PCRA
counsel to withdraw; and
6) The court must agree with counsel that the petition is
meritless.
Commonwealth v. Daniels, 947 A.2d 795, 798 (Pa. Super. 2008) (internal
punctuation marks omitted).
In the present case, counsel complied with the requirements for
withdrawal from a collateral appeal. In the motion filed with this Court,
counsel alleged that she has reviewed the case, evaluated the issues, and
concluded that, as expressed in the attached no-merit letter, the appeal
lacks merit. Counsel has also listed the issue relevant to this appeal, and
explained why, in her opinion, it is without merit. In addition, counsel
averred that she has sent Appellant a copy of the motion to withdraw and
the no-merit letter, which advises Appellant of his right to proceed pro se or
through privately retained counsel. Thus, we will allow counsel to withdraw
if, after our review, we conclude that the issue relevant to this appeal lacks
merit.
We have discerned the following issue, which was presented by PCRA
counsel on behalf of Appellant in the Pa.R.A.P. 1925(b) statement:
Did the PCRA Court err in denying Appellant’s PCRA Petition and
finding that Appellant’s plea was voluntarily and knowingly
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entered under oath and will [sic] full knowledge of the possible
consequences?
Appellant’s Brief at 5.3
Our standard of review of an order denying PCRA relief is whether the
record supports the PCRA court’s determination and whether the PCRA
court’s determination is free of legal error. Commonwealth v. Phillips, 31
A.3d 317, 319 (Pa. Super. 2011) (citing Commonwealth v. Berry, 877
A.2d 479, 482 (Pa. Super. 2005)). The PCRA court’s findings will not be
disturbed unless there is no support for the findings in the certified record.
Id. (citing Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super.
2001)).
To the extent that Appellant argues that his plea was not knowingly or
voluntarily entered, Appellant’s Brief at 14, 16-17, we find this issue waived.
Appellant could have raised this issue on direct appeal, but failed to do so.
See Commonwealth v. Lambert, 797 A.2d 232, 240 (Pa. 2001) (issues
that could have been raised on direct appeal but were not are waived under
the PCRA); 42 Pa.C.S. § 9544(b) (issue is waived if petitioner failed to raise
____________________________________________
3
Although this single issue is presented in the statement of questions
presented for review, Appellant’s counsel identifies and addresses an
additional claim throughout the brief. Specifically, Appellant also asserts
that trial counsel was ineffective for advising Appellant that his sentence
could not exceed fifteen years even though the crimes for which Appellant
entered his plea were crimes that exposed Appellant to an aggregate
sentence far exceeding fifteen years. Appellant’s Brief at 13, 14-15.
Accordingly, we shall address the two related issues in determining whether
either issue supports a grant for relief.
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it, and it could have been raised before trial, at trial, on appeal, in habeas
corpus proceeding, or in prior proceeding under PCRA).
Appellant also asserts that trial counsel was ineffective for providing
Appellant with erroneous advice regarding his sentence exposure.
Appellant’s Brief at 15. Appellant maintains that defense counsel told him
that his plea would result in an aggregate maximum sentence of no more
than fifteen years of incarceration. Id. Appellant further argues that
counsel’s statement that Appellant would receive no more than fifteen years,
when the potential sentence was much higher, was not reasonably designed
to effectuate Appellant’s interests. Id. Additionally, Appellant contends that
counsel’s unreasonable performance prejudiced Appellant because he relied
on this erroneous advice when accepting the plea offered by the
Commonwealth. Id. Appellant maintains that his plea was unlawfully
induced due to trial counsel’s erroneous statements pertaining to the
aggregate sentence. Id.
Ineffectiveness claims are cognizable under the PCRA. Lambert, 797
A.2d 232, 242; 42 Pa.C.S. § 9543(a)(2)(ii). When considering an allegation
of ineffective assistance of counsel, counsel is presumed to have provided
effective representation unless the PCRA petitioner pleads and proves that:
(1) the underlying claim is of arguable merit; (2) counsel had no reasonable
basis for his or her conduct; and (3) Appellant was prejudiced by counsel’s
action or omission. Commonwealth v. Pierce, 527 A.2d 973, 975-976
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(Pa. 1987). “In order to meet the prejudice prong of the ineffectiveness
standard, a defendant must show that there is a reasonable probability that
but for the act or omission in question the outcome of the proceeding would
have been different.” Commonwealth v. Wallace, 724 A.2d 916, 921 (Pa.
1999). A claim of ineffective assistance of counsel will fail if the petitioner
does not meet any of the three prongs. Commonwealth v. Williams, 863
A.2d 505, 513 (Pa. 2004).
“A criminal defendant has the right to effective counsel during a plea
process as well as during trial.” Commonwealth v. Hickman, 799 A.2d
136, 141 (Pa. Super. 2002). “The law does not require that appellant be
pleased with the outcome of his decision to enter a plea of guilty[.]”
Commonwealth v. Diaz, 913 A.2d 871, 873 (Pa. Super. 2006) (citation
omitted). Instead, “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.” Commonwealth
v. Morrison, 878 A.2d 102, 105 (Pa. Super. 2005). “The voluntariness of
[the] plea depends on whether counsel’s advice was within the range of
competence demanded of attorneys in criminal cases.” Commonwealth v.
Lynch, 820 A.2d 728, 733 (Pa. Super. 2003). Therefore, “[a]llegations of
ineffectiveness in connection with the entry of a guilty plea will serve as a
basis for relief only if the ineffectiveness caused appellant to enter an
involuntary or unknowing plea.” Commonwealth v. Boyd, 835 A.2d 812,
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815 (Pa. Super. 2003). If the ineffective assistance of counsel caused the
defendant to enter an involuntary or unknowing plea, the PCRA will afford
the defendant relief. Hickman, 799 A.2d at 141.
In order to ensure a voluntary, knowing, and intelligent plea, trial
courts are required to ask the following questions in the guilty plea colloquy:
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
a 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 ranges 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?
7) Does the defendant understand that the Commonwealth has a
right to have a jury decide the degree of guilt if defendant pleads
guilty to murder generally?
Pa.R.Crim.P. 590; Commonwealth v. Pollard, 832 A.2d 517, 522–523 (Pa.
Super. 2003). “The guilty plea colloquy must affirmatively demonstrate that
the defendant understood what the plea connoted and its consequences.”
Commonwealth v. Lewis, 708 A.2d 497, 501 (Pa. Super. 1998). “Once a
defendant has entered a plea of guilty, it is presumed that he was aware of
what he was doing, and the burden of proving involuntariness is upon him.”
Commonwealth v. Stork, 737 A.2d 789, 790 (Pa. Super. 1999) (citation
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and internal brackets omitted). “In determining whether a guilty plea was
entered knowingly and voluntarily, ... a court ‘is free to consider the totality
of the circumstances surrounding the plea.’” Commonwealth v. Flanagan,
854 A.2d 489, 513 (Pa. 2004) (citation and internal quotation marks
omitted).
In the case sub judice, during the plea hearing, Appellant was provided
with the relevant information and asked the necessary questions pursuant to
Pa.R.Crim.P. 590. N.T., 4/25/13, at 1-11. Specifically, the following
exchange regarding the potential sentence ranges took place:
[Commonwealth]: Pursuant to negotiations with your
attorney, you have agreed to come here today and enter pleas
of guilty to third degree murder and aggravated assault[,] and
whatever other charges were filed against you would be
withdrawn. Now, the judge has to accept that plea. And if he
accepts the plea, it’s final. If he doesn’t accept the plea, you
would still be presumed innocent, and we would head to trial.
The maximum penalty for third degree murder is 40 years
in prison and a $25,000 fine. In addition, there is a five-year
mandatory minimum penalty for that, which means that no
matter what your sentence is – and I don’t know what your
sentence will [be] – the judge has to at least give you five years
in prison because you used a gun. We’re not saying that 40
years is what you would get. We’re saying that’s the most the
judge could sentence you to. Okay?
[Appellant]: (Nods head affirmatively.)
[Commonwealth]: The other charge that you’re pleading
guilty to is aggravated assault for the second person involved.
The maximum penalty for that is 20 years in prison and a
$25,000 fine. Again, there is a five-year mandatory minimum
because a gun was used, so you would have to serve at least
five years on that. And it would be up to the judge whether he
ran the five years consecutive, which means it would be five plus
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five, or concurrent, which means it would just be the five
running together. Okay? That’s up to the judge.
[Appellant]: All right.
[Commonwealth]: So what that means in sum is, is that if
you were sentenced to the maximum penalty, you could face 60
years in prison and $50,000 in fines and up to ten years in
mandatory minimums. Okay?
[Appellant]: Okay.
[Commonwealth]: Understand that?
[Appellant]: Yeah, I do.
Id. at 3-4. During that hearing, Appellant executed a “Defendant’s
Statement of Understanding of Rights Prior to the Entry of a Guilty Plea.”
Id. at 7; Defendant’s Statement of Understanding of Rights prior to
Guilty/No Contest Plea, 4/25/13, at 1. In signing it and upon questioning,
Appellant did not indicate any questions or concerns regarding the oral
colloquy or the written guilty plea memorializing the oral colloquy. N.T.,
4/25/13, at 7. Trial counsel advised the court that after discussing the
matter with Appellant, counsel was satisfied that Appellant’s plea was
voluntarily and knowingly entered. Id. at 9. Appellant also stated that he
discussed the matter with his attorney and indicated that he had no
questions regarding the entry of his plea. Id. at 10. The trial court
concluded the hearing with the following statement:
[B]ased on the court’s observations, the plea colloquy of record,
Appellant’s Statement of Understanding of Rights, and the
Criminal Information, both of which have been signed by
[Appellant] and his attorney, the court finds the pleas to be
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voluntarily and knowingly entered, and accepts the pleas at this
time.
Id. at 11.
Thus, based on the testimony at the plea hearing, we conclude that
there is no merit to Appellant’s claim. The maximum penalties for each
charge were set forth for Appellant, and he indicated that he understood the
sentencing possibilities he was facing. Additionally, when questioned,
Appellant indicated that he understood the sentencing possibilities and that
he had no questions regarding the plea agreement.
Moreover, trial counsel executed an affidavit, and in it made the
following statements:
I was able to negotiate a plea offer for [Appellant] that included
a 3rd degree murder charge for the homicide of Kendall Bryant,
an aggravated assault charge for the shooting of Mr. Lemon, and
the remaining charges would be nolle prossed.
On the same day I received this plea offer [from the
Commonwealth], I had a consultation with [Appellant] at the
Erie County Jail. At that time I discussed the plea offer from the
Commonwealth as well as the standard range sentences for each
charge. [Appellant] was aware that with the deadly weapon
enhancement the 3rd degree murder charge carried a standard
range sentence of 90 months to the statutory limits.
Additionally, [Appellant] was aware that the standard range
sentence for the aggravated assault charge with the deadly
weapon enhancement was 54 to 72 months. [Appellant] was
presented with the sentencing matrix for these charges during
the consultation. Recent sentences in Erie County for 3rd Degree
murder, were also discussed with [Appellant]. Considering those
sentences, I explained that while the low end of the sentencing
guideline for 3rd degree murder was 7 ½ years, I expected his
sentence would be closer to 15 years for the 3rd degree murder
charge. It was also discussed that all sentences are
discretionary with the judge and that I could not guarantee what
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[Appellant] could receive as a sentence. In that same regard, I
did explain that within the judge’s discretion is the decision to
run sentences concurrently or consecutively, therefore, there
was a possibility that the judge could run the sentences for the
3rd degree murder charge and the aggravated assault charge
concurrently. However, because there were two victims the
judge would be well within his discretion to run the sentences
consecutively. At no point did I promise a specific sentence or
guarantee a specific sentence to [Appellant].
Furthermore, it was discussed with [Appellant] that he did
not have to accept the plea and we could proceed to trial. The
trial was currently scheduled for the May 2013 trial term.
Therefore, [Appellant’s] claim in his P.C.R.A. petition that the
Commonwealth’s plea offer was discussed with him
approximately two weeks prior to trial is accurate. However, the
negotiated plea was discussed with him as soon as it was offered
by the Commonwealth. Moreover, [Appellant] knowingly and
voluntarily entered a plea that mitigated his potential exposure
to a 1st degree murder conviction and an attempted 1st degree
murder conviction. Additionally, the Commonwealth agreed not
to discuss the severity of the injuries sustained by Ramone
Lemon, nor the current medical condition of Mr. Lemon, which as
reported to me included the limited mobility of Mr. Lemon and
the necessity of Mr. Lemon to wear a colostomy bag since the
incident. Moreover, the Commonwealth, while refusing to make
a sentencing recommendation, did agree not to oppose
concurrent sentences.
Supplemental PCRA petition, Exhibit F, at 3-4.
Thus, there is additional evidence that Appellant was advised of the
sentencing possibilities. Trial counsel asserted that he did not promise
Appellant that the sentences would run concurrently and not consecutively.
We find no merit to Appellant’s claim that counsel told Appellant that the
maximum aggregate sentence he could get would be fifteen years. We
therefore conclude there is no merit to Appellant’s claim that he did not
knowingly or voluntarily enter his plea based on counsel’s erroneous advice.
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Accordingly, there is no merit to the underlying claim that trial counsel
induced Appellant to enter his guilty plea based on erroneous advice. The
PCRA court properly denied Appellant’s PCRA petition.
In summary, it is our determination that Appellant failed to present an
issue warranting relief. Also, having determined after independent review of
the record that there are no other issues that support a grant of relief, we
allow counsel to withdraw.
Motion to withdraw granted. Order affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/22/2015
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