Com. v. Billinger, A.

J-A25011-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ANTHONY L. BILLINGER :
:
Appellant : No. 18 WDA 2021
Appeal from the PCRA Order Entered December 23, 2020,
in the Court of Common Pleas of Erie County Criminal
Division at No(s): CP-25-CR-0000463-2017.
BEFORE: KUNSELMAN, J., KING, J., and COLINS, J.*
MEMORANDUM BY KUNSELMAN, J.: FILED: NOVEMBER 29, 2021
Anthony L. Billinger appeals from the order denying his first petition for
relief pursuant to the Post Conviction Relief Act (“PCRA”). 42 Pa.C.S.A. §§
9541-46. We affirm.
The pertinent facts and procedural history are as follows: Police officers
executed a search warrant at Billinger’s residence in Erie, Pennsylvania, at
1:30 p.m. on January 3, 2017. During the search, the officers recovered
significant quantities of cocaine, heroin, marijuana, and a loaded semi-
automatic handgun. Billinger was arrested and multiple charges were filed
against him. On June 5, 2017, Billinger entered a guilty plea to possession
with an intent to deliver a controlled substance (“PWID”) and possession of a
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* Retired Senior Judge assigned to the Superior Court.
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firearm prohibited. On July 17, 2017, the trial court sentenced him to an
aggregate term of 87 to 174 months of imprisonment, consecutive to any
other sentence he was then serving. Billinger filed a counseled motion for
reconsideration of sentence, which the trial court denied.1
Although he did not file a timely appeal, Billinger’s appellate rights were
reinstated on July 12, 2018, via a PCRA petition. Thereafter, new counsel filed
an appeal on Billinger’s behalf along with a petition to withdraw pursuant to
Anders v. California, 386 U.S. 738 (1967). In a non-precedential decision
filed on May 24, 2019, we rejected Billinger’s challenge to the discretionary
aspects of his sentence and permitted counsel to withdraw. Billinger did not
seek further review.
On May 14, 2020, Billinger filed a pro se PCRA petition. The PCRA court
appointed counsel, who then filed a supplement to the pro se petition. On
November 12, 2020, the PCRA court issued a Pa.R.Crim.P. 907 notice of its
intent to dismiss Billinger’s PCRA petition without a hearing. Billinger did not
file a response. By order entered December 23, 2020, the PCRA court denied
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1 Billinger also filed a pro se motion for reconsideration in which he asserted,
inter alia, that he was sentenced to an unconstitutional mandatory minimum
sentence. Important to the present appeal, Billinger did not contend that
counsel assured him he would receive a lesser sentence. In accordance with
Pa.R.Crim.P. 576(A)(4), the prothonotary forwarded the pro se filing to plea
counsel.
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Billinger’s PCRA petition. This timely appeal followed. Both Billinger and the
PCRA court have complied with Pa.R.A.P. 1925.
Billinger raises the following issue on appeal:
A. Whether the guilty plea of [Billinger] was invalid in that
[plea] counsel erroneously advised him that he [was]
subject to a mandatory minimum sentence and the
counts would merge and his sentencing exposure would
be limited to a term of incarceration of 5 to 10 years?
Billinger’s Brief at 2 (excess capitalization omitted).
Our scope and standard of review is well settled:
In PCRA appeals, our scope of review is limited to the
findings of the PCRA court and the evidence on the record of the
PCRA court's hearing, viewed in the light most favorable to the
prevailing party. Because most PCRA appeals involve questions
of fact and law, we employ a mixed standard of review. We defer
to the PCRA court's factual findings and credibility determinations
supported by the record. In contrast, we review the PCRA court's
legal conclusions de novo.
Commonwealth v. Reyes-Rodriguez, 111 A.3d 775, 779 (Pa. Super. 2015)
(citations omitted).
Moreover,
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.
To obtain a 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 material 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.
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Commonwealth v. Blakeney, 108 A.3d 739, 750 (Pa. 2014) (citations
omitted).
Billinger’s issue alleges the ineffective assistance of plea counsel for
advising him to enter his guilty plea based upon counsel’s erroneous advice.
To obtain relief under the PCRA premised on a claim that counsel was
ineffective, a petitioner must establish, by a preponderance of the evidence,
that counsel's ineffectiveness so undermined the truth-determining process
that no reliable adjudication of guilt or innocence could have taken place.
Commonwealth v. Johnson, 966 A.2d 523, 532 (Pa. 2009). “Generally,
counsel’s performance is presumed to be constitutionally adequate, and
counsel will only be deemed ineffective upon a sufficient showing by the
petitioner.” Id. This requires the petitioner to demonstrate that: (1) the
underlying claim is of arguable merit; (2) counsel had no reasonable strategic
basis for his or her action or inaction; and (3) counsel’s act or omission
prejudiced the petitioner. Id. at 533.
With regard to claims of ineffectiveness in relation to the entry of plea,
we further note:
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 into 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.
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The standard for post-sentence withdraw 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 the 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. Kelley, 136 A.3d 1007, 1012-13 (Pa. Super. 2016)
(citations omitted).
Moreover, “[o]ur law presumes that a defendant who enters a guilty
plea was aware of what he was doing,” and “[h]e bears the burden of proving
otherwise.” Commonwealth v. Pollard, 832 A.2d 517, 523 (Pa. Super.
2003) (citations omitted).
The longstanding rule of Pennsylvania law is that a
defendant may not challenge his guilty plea by asserting that
he lied while under oath, even if he avers that counsel
induced the lies. A person who elects to plead guilty is bound
by the statements he makes in open court while under oath
and may not later assert grounds for withdrawing the plea
which contradict the statements he made at his plea colloquy.
Id. On appeal, this Court evaluates the adequacy of the plea colloquy and
the voluntariness of the resulting plea by looking at the totality of the
circumstances. Commonwealth v. Yeomans, 24 A.3d 1044, 1047 (Pa.
Super. 2011).
With these standards in mind, we address the merits of Billinger’s sole
issue on appeal. As noted above, he asserts his plea counsel “provided
erroneous legal advice upon which he relied thereby rendering his [plea] as
unknowing and involuntary.” Billinger’s Brief at 4. He further explained:
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Billinger alleges that [plea] counsel advocated for him to
accept the plea agreement from the Commonwealth to
plead to one count of PWID and one count of possession of
a firearm due to the fact that he was subject to a mandatory
minimum sentence. [Plea] counsel further based her
advocacy on the representation that given the applicability
of a mandatory minimum sentence, the [trial court] would
then merge the two criminal counts together for purposes
of sentencing and that his sentencing exposure would be
limited to the 5 to 10 year term. However, upon the [trial
court] accepting the [plea] and then proceeding to
sentencing, Billinger became aware that contrary to
counsel’s representations he was not subject to a
mandatory minimum and instead the [trial court] imposed
a consecutive sentencing scheme resulting in an aggregate
sentence of 87 months to 174 months. This was a
significant departure from his understanding and
expectations relating to what counsel had apprised him in
an effort to secure his acceptance of the plea offer.
[Billinger] would not have accepted the plea agreement if
he was cognizant of the ensuing sentence in contravention
of the statements of [plea] counsel.
Id. According to Billinger, he “was wholly persuaded to take the guilty [plea]
given counsel’s pronouncement of the applicability of a mandatory minimum
sentence and that his sentencing exposure would be constrained by the
parameters suggested by [plea] counsel.” Id. at 5.
The PCRA court found that Billinger’s “claims with regard to the integrity
of the guilty plea are belied by the record and do not afford him relief.” Rule
907 Notice, 11/12/20, at 3. The court then cited the oral and written plea
colloquies and concluded:
Thus, the record amply demonstrates [Billinger] was
aware of, and acknowledged, the charges to which he was
pleading guilty and the potential maximum sentences he
faced. “A person who elects to plead guilty is bound by the
statements he makes in open court while under oath and
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may not later assert grounds for withdrawing the plea which
contradict the statements he made at his plea colloquy.”
Commonwealth v. Yeomans, 24 A.3d 1044, 1047 (Pa.
Super. 2011). No patent defect exists with regard to the
plea colloquy. [Billinger] fails to point to performance of
counsel which questions the reliability of the manner in
which guilt was determined. No showing of prejudice on the
order of manifest injustice can be established. Based upon
the totality of the circumstances, [Billinger’s] claim he
entered into a defect plea due to ineffectiveness of counsel
is wholly without merit.
Rule 907 Notice, 11/12/21, at 5.
Our review of the record supports the PCRA court’s conclusions. At the
guilty plea hearing, Billinger and his counsel signed a “DEFENDANT’S
STATEMENT OF UNDERSTANDING OF RIGHTS PRIOR TO GUILTY/NO CONTEST
PLEA.” This document, which is essentially a written plea colloquy, informed
Billinger of the maximum sentences for the crimes to which he would be
entering a guilty plea. The form further provided:
5. I understand that any plea bargain in my case is set forth
here and there has been no other bargain and no other
promise or threat of any kind to induce me to plead
guilty/no contest.
Statement of Understanding, 6/5/17, at 1 (emphasis added). Finally, this
form emphasized that the only plea bargain in Billinger’s case was that he
would plead guilty to two counts in exchange for the Commonwealth’s
withdrawal of all remaining counts. Id.As noted by the PCRA court, this plea colloquy was reviewed with
Billinger and his counsel as part of Billinger’s oral colloquy, and Billinger
confirmed his understanding of its contents. See N.T., 6/5/17, at 7-8. Thus,
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Billinger is bound by these statements and cannot contradict them by claiming
he was induced by plea counsel’s representations. Pollard, supra.Moreover, Billinger proffered no evidence to support his claim regarding
plea counsel’s alleged representations regarding Billinger’s sentence
exposure. While he asserted in his pro se PCRA petition that plea counsel,
following sentencing, conceded her mistake regarding a mandatory minimum,
he attached no supporting evidence.2 Indeed, the record contains no
certification from plea counsel. See generally, Pa.R.Crim.P. 902(a)(12).
In sum, because our review of the record supports the PCRA court’s
conclusion that Billinger entered a valid plea, we affirm the PCRA court’s order
denying him post-conviction relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/29/2021
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2 In his brief, Billinger asserts that he appended a copy of correspondence he
received from plea counsel to his pro se PCRA petition “in which she conceded
that she had apprised him that he was subject to a mandatory minimum and
that [she] was mistaken.” Billinger’s Brief at 6. There is no attachment to
Billinger’s pro se petition in the certified record.
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