Com. v. Harding, R.

J-S18045-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RYAN HARDING :
:
Appellant : No. 1593 MDA 2018
Appeal from the PCRA Order Entered August 28, 2018
In the Court of Common Pleas of Lackawanna County Criminal Division at
No(s): CP-35-CR-0001885-2013
BEFORE: BOWES, J., NICHOLS, J., and STEVENS*, P.J.E.
MEMORANDUM BY STEVENS, P.J.E.: FILED MAY 28, 2019
Appellant Ryan Harding files this pro se appeal from the order of the
Court of Common Pleas of Lackawanna County denying his petition filed under
the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. After
careful review, we affirm.
On July 28, 2014, Appellant pled guilty to third-degree murder (18
Pa.C.S.A. § 2502(c)) and firearms not to be carried without a license (18
Pa.C.S.A. § 6106) in connection with the May 5, 2013 shooting death of
Rashan Crowder. On November 5, 2014, the trial court sentenced Appellant
to 20 to 40 years’ imprisonment for the murder conviction and 3½ to 7 years’
imprisonment for the firearms conviction. As the sentences were run
consecutively, Appellant received an aggregate sentence of 23½ to 47 years’
incarceration. On February 1, 2016, this Court affirmed the judgment of
____________________________________
* Former Justice specially assigned to the Superior Court.
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sentence, and on July 6, 2016, the Supreme Court denied Appellant’s petition
for allowance of appeal.
On June 13, 2017, Appellant filed a PCRA petition. The PCRA court
appointed Appellant counsel, who subsequently sought to withdraw his
representation pursuant to Commonwealth v. Turner, 518 Pa. 491, 544
A.2d 927 (1988) and Commonwealth v. Finley, 550 A.2d 213 (Pa.Super.
1988). On September 22, 2017, Appellant submitted a pro se filing seeking
to amend his claims. On January 22, 2018, Appellant filed a Petition for Leave
to file Post-Submission to Amend to raise additional claims for collateral relief.
On July 19, 2018, the PCRA court filed an order, giving notice of its
intent to dismiss Appellant’s petition without a hearing, setting forth its
determination that the petition was devoid of merit, and granting PCRA
counsel permission to withdraw his representation. Appellant did not respond
to the Rule 907 notice. In an order entered August 28, 2018, the PCRA court
dismissed Appellant’s petition. This timely pro se appeal followed.
Appellant raises the following issues for our review, verbatim:
A. Appellant contends plea agreement was induced involuntarily,
unintelligently, unknowingly based upon trial counsel’s misled
Appellant into belief counsel negotiated plea agreement that if
accepted Appellant would receive a sentence of 15 yrs to 30
yrs.
B. Appellant contends he was abandoned by PCRA counsel.
C. Trial Counsel was ineffective for failure to object to and/or raise
preserve illegal consecutive sentence, manifestly excessive in
violation of double jeopardy clause.
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D. Appellant contends trial counsel was ineffective for failure to
object to and/or raise/preserve sentence enhancement/gravity
score (five) based upon prior juvenile adjudications.
Appellant’s Brief, at 4.
Our standard of review is as follows:
When reviewing the denial of a PCRA petition, we must determine
whether the PCRA court's order is supported by the record and
free of legal error. Generally, we are bound by a PCRA court's
credibility determinations. However, with regard to a court's legal
conclusions, we apply a de novo standard.
Commonwealth v. Johnson, 635 Pa. 665, 690, 139 A.3d 1257, 1272 (2016)
(quotation marks and quotations omitted).
Appellant’s claims involve allegations of the ineffectiveness of his
counsel. In reviewing a claim of the ineffectiveness of counsel, we are guided
by the following principles:
It is well-established that counsel is presumed to have provided
effective representation unless the PCRA petitioner pleads and
proves all of the following: (1) the underlying legal claim is of
arguable merit; (2) counsel's action or inaction lacked any
objectively reasonable basis designed to effectuate his client's
interest; and (3) prejudice, to the effect that there was a
reasonable probability of a different outcome if not for counsel's
error. See Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d
973, 975–76 (1987); Strickland v. Washington, 466 U.S. 668,
104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The PCRA court may
deny an ineffectiveness claim if “the petitioner's evidence fails to
meet a single one of these prongs.” Commonwealth v.
Basemore, 560 Pa. 258, 744 A.2d 717, 738 n.23 (2000)....
Because courts must presume that counsel was effective, it is the
petitioner's burden to prove otherwise. See Pierce, supra;Commonwealth v. Holloway, 559 Pa. 258, 739 A.2d 1039,
1044 (1999).
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Commonwealth v. Johnson, 179 A.3d 1105, 1114 (Pa.Super. 2018)
(quoting Commonwealth v. Natividad, 595 Pa. 188, 207–208, 938 A.2d
310, 321 (2007)).
With respect to ineffectiveness claims related to the entry of a guilty
plea, the following principles are applicable:
It is clear that a criminal defendant's right to effective
counsel extends to the plea process, as well as during trial.
However, [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 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.
Commonwealth v. Wah, 42 A.3d 335, 338 (Pa.Super. 2012)
(citations, quotation, and quotation marks omitted). “[T]he law
does not require that [the defendant] be pleased with the outcome
of his decision to enter a plea of guilty: All that is required is that
[his] decision to plead guilty be knowingly, voluntarily, and
intelligently made.” [Commonwealth v.] Anderson, 995 A.2d
[1184, 1192 (Pa.Super. 2010)] (citations, quotation, and
quotation marks omitted). Moreover, with regard to the prejudice
prong, where an appellant has entered a guilty plea, the appellant
must demonstrate “it is reasonably probable that, but for
counsel's errors, he would not have pleaded guilty and would have
gone to trial.” Commonwealth v. Rathfon, 899 A.2d 365, 370
(Pa.Super. 2006) (quotation and quotation marks omitted).
Commonwealth v. Timchak, 69 A.3d 765, 769–70 (Pa.Super. 2013).
First, Appellant argues that trial counsel unlawfully induced him into
entering an unknowing and involuntary guilty plea by allegedly promising
Appellant that he would receive a 15 to 30 year prison sentence in exchange
for pleading guilty.
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In this case, the trial court conducted an extensive colloquy to ensure
that Appellant understood the terms, effects, conditions, and legal
consequences of his guilty plea agreement. The Court emphasized several
times the potential sentences Appellant could receive; Appellant specifically
stated he understood that the murder charge carried a maximum of forty
years’ imprisonment and the weapons charge carried a maximum of seven
years’ imprisonment. Plea Hearing, 7/28/14, at 10.
In contradiction to Appellant’s instant claim that counsel had promised
him a lenient sentence, Appellant expressly agreed at his plea hearing that he
was entering an “open plea” as “no promises had been made to him with
regard to any sentences.” Id. at 9. Appellant subsequently denied that
anyone had “promised [him] anything, other than the open plea.” Id. at 28.
Appellant confirmed that the entry of his plea was a free and voluntary act
and indicated that he was satisfied with the representation of plea counsel.
Upon reviewing the record of Appellant’s oral plea colloquy, we find that
there is ample evidence to show Appellant understood that there was no
agreement as to the particular sentence that he would receive, his open plea
left his sentence to the discretion of the trial court, and that he had not been
promised any particular sentence in exchange for entering an open plea. In
similar cases, this Court has held:
Our law presumes that a defendant who enters a guilty plea was
aware of what he was doing. He bears the burden of proving
otherwise.
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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.
[A] defendant who elects to plead guilty has a duty to answer
questions truthfully. We [cannot] permit a defendant to postpone
the final disposition of his case by lying to the court and later
alleging that his lies were induced by the prompting of counsel.
Commonwealth v. Yeomans, 24 A.3d 1044, 1047 (Pa.Super. 2011)
(quoting Commonwealth v. Pollard, 832 A.2d 517, 523-24 (Pa.Super.
2003)). As such, Appellant is bound by the statements he made at his plea
colloquy. Thus, Appellant’s ineffectiveness claim based on his argument that
plea counsel promised him a lenient sentence fails.
Second, Appellant argues that PCRA counsel abandoned him by filing a
petition to withdraw and a Turner-Finley no-merit letter. However, Appellant
did not challenge the trial court’s decision to allow counsel to withdraw in its
Rule 907 notice, but instead raises this claim on collateral appeal. PCRA
counsel's ineffectiveness may not be raised for the first time on appeal.
Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa.Super. 2014) (citing
Commonwealth v. Ford, 44 A.3d 1190 (Pa.Super. 2012)).
In Appellant’s third and fourth claims, Appellant argues that trial counsel
was ineffective for failing to raise challenges to the legality and discretionary
aspects of his sentence, claiming his sentence was manifestly excessive in
violation of double jeopardy principles. However, as Appellant attempts to
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raise these claims for the first time on appeal and did not present these
arguments in the lower court, these issues are waived. 42 Pa.C.S.A. § 9544
(providing that “an issue is waived if the petitioner could have raised it but
failed to do so before trial, at trial, during unitary review, on appeal or in a
prior state postconviction proceeding”).1
For the foregoing reasons, we affirm the PCRA court’s decision to dismiss
Appellant’s petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/28/2019
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1 Appellant did argue in his PCRA petition that the trial court erred in
considering his juvenile adjudications to enhance his adult gravity score. The
PCRA court pointed out that this issue was waived as Appellant could have
raised this claim on direct appeal. Appellant cannot now characterize this
claim on collateral appeal as an ineffectiveness claim as he did not do so in
his petition before the PCRA court. 42 Pa.C.S.A. § 9544.
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