Com. v. Gaines, B.

J-S44022-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
BENJAMIN GAINES :
:
Appellant : No. 3740 EDA 2016
Appeal from the PCRA Order November 4, 2016
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0003690-2012
BEFORE: LAZARUS, J., MURRAY, J., and MUSMANNO, J.
MEMORANDUM BY MURRAY, J.: FILED AUGUST 07, 2018
Benjamin Gaines (Appellant), pro se, appeals from the order dismissing
his petition filed pursuant to the Post Conviction Relief Act (PCRA), 42
Pa.C.S.A. §§ 9541-9546. We affirm.
The facts underlying this appeal stem from a February 9, 2012 incident
during which Appellant shot Amir Jones in the face, severely and permanently
injuring him. The victim subsequently identified Appellant as the shooter.
The PCRA court summarized the remainder of the procedural history as
follows:
On February 6, 2013, [Appellant] entered a negotiated plea on
the charges of [a]ttempted [m]urder and [possession of an
instrument of crime (PIC)]. He was immediately sentenced, in
accordance with the plea agreement, to a period of confinement
in a state correctional facility of 15 to 30 years on the [a]ttempted
[m]urder charge and a concurrent period of confinement of 2½ to
5 years on the PIC charge. [Appellant] did not file a direct appeal.
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On February 4, 2014, [Appellant] timely filed the instant pro se
PCRA [p]etition. On June 18, 2014, Coley O’Brien Reynolds[,]
Esq., was appointed to represent [Appellant] on his PCRA
[p]etition. On August 29, 2016, Mr. Reynolds filed a[] thorough
and exhaustive no-merit Finley Letter[1] with the [c]ourt
concluding that “[Appellant]’s claims are entirely lacking in merit
and there exist no other issues having arguable merit that could
be raised in an amended petition[.]” On September 16, 2015, the
[c]ourt, after a careful review of the record and PCRA [c]ounsel’s
Finley letter, issued its notice, pursuant to Rule 907 of the
Pennsylvania Rules of Criminal Procedure (Pa.R.Crim.P.), advising
[c]ounsel and [Appellant] that it intended to dismiss [Appellant]’s
petition within twenty days of the date of its notice. On
September 19, 2016, [Appellant] filed a “Motion for Leave to
Amend PCRA Petition.” On November 8, 2016, the [c]ourt issued
an [o]rder [permitting counsel to withdraw and] dismissing
[Appellant]’s PCRA [p]etition as being without merit.
On November 21, 2016, [Appellant] timely filed the instant
appeal to the Superior Court of Pennsylvania. On December 6,
2016, this [c]ourt filed and served on [Appellant] an [o]rder
pursuant to Rule 1925(b) of the Pennsylvania Rules of Appellate
Procedure, directing [Appellant] to file and serve a [s]tatement of
[e]rrors [c]omplained of on [a]ppeal, within twenty-one days of
the [c]ourt’s [o]rder.
On December 20, 2016, [Appellant] timely filed a [s]tatement
of [e]rrors [c]omplained of on [a]ppeal.
PCRA Court Opinion, 9/6/17, at 1-2.
Appellant presents the following issues for review:
1) Did the trial court err by dismissing the properly filed PCRA
petition given [that] Appellant had entered an involuntary and
unknowing guilty plea as a result of an ineffective assistance of
counsel, was a colorable, meritorious claim?
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1 See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988);
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988).
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2) Does the trial court’s dismissal of the properly filed PCRA
petition without an evidentiary hearing constitute a due process
violation?
3) Did the trial court err by failing to grant the motion to amend
the PCRA petition or acknowledging, on the record, the amended
PCRA petition?
Appellant’s Brief at 5.
“In reviewing the denial of PCRA relief, we examine whether the PCRA
court’s determination is supported by the record and free of legal error.”
Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014) (quotations and
citations omitted). “To be entitled to PCRA relief, [an] appellant must
establish, by a preponderance of the evidence, his conviction or sentence
resulted from one or more of the enumerated errors in 42 Pa.C.S.[A.] §
9543(a)(2)[.]” Id.
First, Appellant challenges plea counsel’s effectiveness as it relates to
his guilty plea. In deciding ineffective assistance of counsel claims, we begin
with the presumption that counsel rendered effective assistance.
Commonwealth v. Bomar, 104 A.3d 1179, 1188 (Pa. 2014). To overcome
that presumption, the petitioner must establish: “(1) the underlying claim has
arguable merit; (2) no reasonable basis existed for counsel’s action or failure
to act; and (3) the petitioner suffered prejudice as a result of counsel’s error,
with prejudice measured by whether there is a reasonable probability that the
result of the proceeding would have been different.” Id. (citation omitted).
To demonstrate prejudice in an ineffective assistance of counsel claim, “the
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petitioner must show that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different.” Commonwealth v. King, 57 A.3d 607, 613 (Pa. 2012). If the
petitioner fails to prove any of these prongs, the claim is subject to dismissal.
Bomar, 104 A.3d at 1188.
“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.” Commonwealth v.
Moser, 921 A.2d 526, 531 (Pa.Super.2007) (quotations and citation omitted).
“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.” Id.(quotations and citations omitted). “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.” Commonwealth v. Barndt, 74 A.3d 185, 192 (Pa. Super.
2013) (quotations and citations omitted). “The reasonable probability test is
not a stringent one; it merely refers to a probability sufficient to undermine
confidence in the outcome.” Id. (quotations and citations omitted).
With respect to valid guilty pleas, this Court has explained:
A valid guilty plea must be knowingly, voluntarily and intelligently
entered. 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
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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.
Commonwealth v. Kelley, 136 A.3d 1007, 1013 (Pa. Super. 2016) (citations
omitted).
Appellant argues that his guilty plea was not knowing, voluntary, and
intelligent due to plea counsel’s ineffectiveness. Appellant contends that he
had no choice but to plead guilty because plea counsel did not pursue or
investigate the defenses of diminished capacity2 and self-defense3 on his
behalf.
Based upon our review of the certified record, including the transcript of
Appellant’s guilty plea hearing and his written colloquy, we conclude that
Appellant’s guilty plea was knowing, voluntary, and intelligent. The record
reflects that the trial court informed Appellant of the nature of the charges to
which he pled guilty, the factual basis for the plea, his right to trial by jury,
____________________________________________
2 Appellant claims that he was under the influence of narcotics when he shot
the victim.
3 Appellant asserts that he shot the victim believing he was the leader of a
“group” who had “harassed and threatened to kill him.” Appellant’s Brief at
12-13.
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the presumption of innocence, the sentences, and that it was accepting the
negotiated sentence. N.T. 2/6/13, at 5-24; Written Guilty Plea Colloquy,
2/6/13, at 1-4.
Importantly, during the oral colloquy, Appellant indicated that he did not
need any additional time to discuss possible defenses with plea counsel, and
that he was satisfied with counsel’s representation. Id. at 13-14. Appellant
acknowledged that he had decided to exchange his rights, including the right
to raise defenses, in exchange for a favorable sentence of 15 to 30 years of
incarceration for an attempted murder charge where the victim unequivocally
identified Appellant as the perpetrator. Id. at 8-12, 23-24. Appellant stated
that he was understood the ramifications of pleading guilty and that he was
entering his plea on his own volition. Id. at 8-12. He cannot now contradict
these statements.
By arguing that plea counsel’s ineffectiveness forced him into pleading
guilty, Appellant essentially admits that his responses to the plea colloquies
were untruthful. A defendant who elects to plead guilty, however, “is bound
by the statements he makes in open court while under oath and he may not
later assert grounds for withdrawing the plea which contradict the statements
he made at his plea colloquy.” Commonwealth v. Turetsky, 925 A.2d 876,
881 (Pa. Super. 2007) (quotations and citations omitted). “A criminal
defendant who elects to plead guilty has a duty to answer questions
truthfully.” Id. Accordingly, because the record supports the PCRA court’s
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determination that Appellant’s guilty plea was knowing, voluntary, and
intelligent, we conclude that the trial court did err in determining that this
claim lacked arguable merit.4
Second, Appellant argues that the PCRA court erred in dismissing his
case without a hearing. This Court has explained:
[T]he right to an evidentiary hearing on a post-
conviction petition is not absolute. It is within the
PCRA court’s discretion to decline to hold a hearing if
the petitioner’s claim is patently frivolous and has no
support either in the record or other evidence. It is
the responsibility of the reviewing court on appeal to
examine each issue raised in the PCRA petition in light
of the record certified before it in order to determine
if the PCRA court erred in its determination that there
were no genuine issues of material fact in controversy
and in denying relief without conducting an
evidentiary hearing.
Commonwealth v. Walls, 993 A.2d 289, 295 (Pa. Super. 2010) (internal
citations and brackets omitted). If the PCRA court “can determine without an
evidentiary hearing that one of the prongs cannot be met, then no purpose
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4 Additionally, our case law is clear that the entry of a guilty plea constitutes
waiver of all defenses and defects except claims of lack of jurisdiction, invalid
guilty plea, and illegal sentence. See Commonwealth v. Roden, 730 A.2d
995, 997 n.2 (Pa. Super. 1999) (“Upon entry of a guilty plea, a defendant
generally waives all defects and defenses except those concerning the validity
of the plea, the jurisdiction of the trial court, and the legality of the sentence
imposed.”); see also Commonwealth v. Messmer, 863 A.2d 567, 571 (Pa.
Super. 2004) (“The entry of a guilty plea constitutes a waiver of all defenses
and defects except claims of lack of jurisdiction, invalid guilty plea, and illegal
sentence.”). Because the record reflects Appellant’s clear desire to plead
guilty, he cannot now challenge counsel’s failure to raise these defenses.
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would be advanced by holding an evidentiary hearing.” Commonwealth v.
Jones, 942 A.2d 903, 906 (Pa. Super. 2008).
Here, Appellant argues that an evidentiary hearing was necessary for
him to present evidence proving his claim that his guilty plea was not knowing,
voluntary, and intelligent. As discussed above, the evidence Appellant would
have presented in support of this claim would have been testimony that
directly contradicted the statements he made during his guilty plea colloquy.
This, however, is not an avenue for relief. Thus, there were no genuine issues
of material fact in controversy and no purpose would have been served by
holding a hearing. Accordingly, the PCRA court did not err in denying
Appellant’s petition without a hearing.
Finally, Appellant argues that the PCRA court erred in denying his motion
for leave to amend his PCRA petition. Appellant maintains that Rule 905 of
the Pennsylvania Rules of Appellant Procedure requires courts to “freely”
permit the filing of amended PCRA petitions.
Rule 905 states that a PCRA court “may grant leave to amend or
withdraw a petition for post-conviction collateral relief at any time.
Amendment shall be freely allowed to achieve substantial justice.”
Pa.R.Crim.P. 905(a) (emphasis added). As our Supreme Court has explained,
“[t]he statutory word ‘may’ as contrasted with ‘shall’ signals a discretionary
rather than a mandatory act.” Commonwealth v. Williams, 828 A.2d 981,
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988 (Pa. 2003). Thus, “[t]he [PCRA] court retains discretion whether or not
to grant a motion to withdraw or amend a post-conviction petition.” Id.The PCRA court explained its decision to deny Appellant’s motion as
follows:
In his motion, [Appellant] essentially reargued [plea] counsel’s
ineffectiveness in an attempt to circumvent Mr. Reynolds’
exhaustive discussion and conclusion contained in his Finley
Letter, which clearly address the issues before the Court.
Additionally, [Appellant], for the first time, without substantiation,
whimsically alleges that [plea] counsel was ineffective for failing
to suppress statements made by him “after ingesting potent pain
killers at the hospital immediately prior to waiving his right to
remain silent.” Not only is there no evidence in the record to
remotely suggest that [Appellant] received any sort of medical
treatment prior to giving his statement to the investigating
officers, the Commonwealth advised the [c]ourt that it would not
be introducing his statement at trial. (N.T., 2/6/2013 pg. 18).
Raising nothing of substance, it was proper for the [c]ourt to deny
[Appellant]’s motion to amend[.]
PCRA Court Opinion, 9/6/17, at 3.
We have reviewed the certified record on appeal, including Appellant’s
motion for leave to amend his PCRA petition and the guilty plea hearing
transcript wherein the Commonwealth indicated it would not introduce the
statement at issue at trial, and we determine that the PCRA court accurately
assessed the arguments in Appellant’s motion and the evidence before the
court that supported the denial of that motion. Because Appellant did not
provide the PCRA court with a legitimate reason to permit him to amend his
PCRA petition, we conclude that court did not abuse its discretion in denying
his motion.
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Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/7/18
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