Commonwealth v. Moore

JOHNSON, Judge:

Anthony Moore appeals from the order denying his petition for relief pursuant to the Post Conviction Relief Act (PCRA), 42 Pa. C.S. § 9541 et seq. We affirm.

On September 21, 1990, while Moore was on parole for an unrelated offense, he was charged with possession of cocaine with intent to deliver, and he was incarcerated. On October 25, 1991, Moore entered into a negotiated guilty plea to the possession charge. Pursuant to the negotiated agreement, Moore was sentenced to a minimum of three and one-half years’ imprisonment, with a retroactive commencement date of September 21, 1990. However, because the conviction for this new offense violated the conditions of Moore’s parole, the Pennsylvania Board of Probation and Parole (the Board) recommitted Moore to prison to serve the remainder of his earlier sentence through September 9, 1992. In so doing, the Board changed the effective date of the new sentence from September 21,1990, to September 9, 1992, to run consecutively to the recommitment.

Moore did not file a direct appeal or a petition to withdraw his guilty plea. Rather, Moore filed a PCRA petition seeking either modification of his sentence so that it would conform to the term imposed following his guilty plea or permission to withdraw his guilty plea. The trial court denied Moore’s petition, and this appeal followed.

On appeal, Moore argues that his counsel was ineffective for failing to advise him that the Board had the authority to require that his sentence for the cocaine offense run consecutively to the recommitment sentence. See Brief for Appellant at 5-6, 8. Further, Moore asserts that counsel’s ineffectiveness caused him to unknowingly enter into the guilty plea. Id. at 7. Therefore, Moore argues, his sentence should be modified in a manner that would afford him the benefit of his bargain, or he should be permitted to withdraw his guilty plea. Nowhere in his brief to this Court does Moore argue that he is entitled to post-conviction relief because of an unlawfully induced guilty plea pursuant to 42 Pa.C.S. § 9543(a)(2)(iii). Rather, he couches his claim solely as one of ineffective assistance of counsel. Id. at 5-8.

Initially, we must determine whether this claim is cognizable under the PCRA because the PCRA limits the types of claims that are cognizable. Commonwealth v. Grier, 410 Pa.Super. 284, 286-87, 599 A.2d 993, 994 (1991). For Moore’s ineffectiveness claim to' be cognizable under the PCRA Moore must plead and prove, by a preponderance of the evidence, that his sentence resulted from “[i]neffective assistance of counsel which, in the circumstances of the particular ease, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place.” 42 Pa.C.S. § 9543(a)(2)(h). That requirement “constitutes ‘a substantial restriction on the grounds for post-conviction collateral relief in Pennsylvania.’ ” Grier, supra, at 288, 599 A.2d at 9.95, quoting Commonwealth v. Thomas, 396 Pa.Super. 92, 98, 578 A.2d 422, 425 (1990) (comparing PCRA to its predecessor Post Conviction Hearing Act).

Generally, where a party has “entered a guilty plea, the truth-determining process is not implicated.” Commonwealth v. Shekerko, 432 Pa.Super. 610, 615, 639 A.2d 810, 813 (1994). This is particularly so where a PCRA challenge relates to an accused’s understanding of sentencing. In Grier, supra, an appellant who pleaded guilty to two counts of criminal trespass and one count of criminal mischief sought relief under the PCRA. He claimed that his counsel had been ineffective for failing to introduce evidence that might have affected his sentence and for failing to preserve sentencing issues by filing a motion to modify the sentence. The court determined that these claims were not cognizable under the PCRA, finding that Grier did “not explain how [counsel’s] failure undermined the truth-determining process, nor [did he] allege that it prevented a reliable determination as to his guilt or innocence.” Grier, supra, at 289-90, 599 A.2d at 998-99.

In the present case, Moore complains that he was not informed of the authority of the Board to require his sentence for possession to run consecutively to his recommitment for the parole violation. As in Grier, Moore has not alleged that this deficiency advei’sely affected the truth-determining process. See also Commonwealth v. Wolfe, 398 Pa.Super. 94, 580 A.2d 857 (1990) (claim that counsel was ineffective in formulating arguments relating to sentencing not cognizable under PCRA because claims not related to truth-determining process).

Moreover, “[w]e have interpreted [§ 9543(a)(2)(h) ] to mean that an ineffectiveness claim brought under the PCRA must raise a question of whether an ‘innocent individual’ has been convicted.” Commonwealth v. Tanner, 410 Pa.Super. 398, 406, 600 A.2d 201, 205 (1991), appeal denied, 530 Pa. 654, 608 A.2d 29 (1992). For example, in Commonwealth v. Harvey, 407 Pa.Super. 545, 595 A.2d 1280, appeal denied, 530 Pa. 652, 608 A.2d 28 (1991), the appellant argued that he was entitled to relief under the PCRA because counsel’s ineffectiveness had caused him to plead guilty. Specifically, he alleged that counsel was ineffective for failing to infoi’m him that the charges against him, based on several separate incidents, could be severed upon motion. The coui’t found that the claim ivas cognizable under the PCRA. It reasoned that “the argument that the jury could have been unduly prejudiced by the sheer number of charges pending before the court at once challenges the truth determining process.” Id. 407 Pa.Super. at 549 n. 2, 595 A.2d at 1283 n. 2. Thus, the ineffectiveness claim was cognizable under the PCRA because the ineffectiveness related to the factfinder’s ability to determine the guilt or innocence of the accused. See also Commonwealth v. Nelson, 393 Pa.Super. 611, 574 A.2d 1107 (1990) (counsel’s ineffectiveness for failing to challenge admissibility of incriminating evidence and then advising appellant to plead guilty undermined the ti’uth-determining process and entitled appellant to relief under the PCRA).

Here, Moore’s understanding of the Board’s sentencing authoi’ity could not have aided him in persuading a factfinder of his innocence or guilt. Further, Moore has not alleged that counsel’s failure to inform him of the Board’s sentencing authority related in any way to the truth-detei’mining process that would have occurred absent his plea. Cf. Tanner, supra (claim that counsel was ineffective for failing to advise Tanner of his i-ight to take appeal to the Pennsylvania Supreme Court was not cognizable under PCRA because Tanner did not explain how truth-determining process or reliability of determination of guilt was implicated). Accordingly, Moore has failed to plead and prove facts sufficient to support a claim that is cognizable under the PCRA.

Lastly, we note that, had Moore raised a cognizable claim, whether based on ineffective assistance of counsel or an unlawfully induced guilty plea, we would find it to be without merit. Moore contends that he was not informed that the effective date of the bai’gained-for sentence could be changed by the Board. However1, the record does not support this contention. During the guilty-plea colloquy, the following exchange occurred:

[Defense Attorney]: One specific point, Mr. Moore, it’s my understanding that you are on par-ole in two jurisdictions.

Do you understand that?

[Moore]: Yes, sir.

[Defense Attorney]: And you understand by pleading guilty here today you could be — very well would be in violation of those paroles and you could receive separate consideration and sentences pursuant to your plea today?

[Moore]: Yes, sir.

N.T., Guilty Plea, dated October 25, 1991, at 7. Furthermore, at the conclusion of the guilty plea hearing, the judge reminded Moore that, “more than likely you will be violated by [Pennsylvania] as well as ... New York. Id. at 24. Therefore, Moore’s contention that he did not know that he could receive separate consideration on sentencing for parole violations is without merit.

Based upon the foregoing, we affirm the denial of Moore’s PCRA petition.

Order affirmed.

POPOVICH, J., files a Dissenting Opinion.