Com. v. Washington, D.

J. S30025/16
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
DEMETRIOUS WASHINGTON, : No. 2291 EDA 2015
:
Appellant :
Appeal from the PCRA Order, June 29,2015,
in the Court of Common Pleas of Montgomery County
Criminal Division at No. CP-46-CR-0005675-2013
BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., AND JENKINS, J.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED MAY 11, 2016
Demetrious Washington appeals from the June 29, 2015 order of the
Court of Common Pleas of Montgomery County dismissing his first petition
filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A.
§§ 9541-9546, without a hearing. We affirm.
The PCRA court provided the following factual and procedural history:
[Appellant] pleaded guilty on January 28,
2014, to four counts of robbery,[1] graded as
felonies of the first degree. He admitted that
between May 28, 2013, and July 10, 2013, he
participated in four bank robberies in Montgomery
County using a fake gun that placed four bank
employees in fear of serious bodily injury. He
received an agreed-upon sentence of six-and-one-
half to seventeen years in prison on each count, set
to run concurrent to each other.
1
18 Pa.C.S.A. § 3701.
J. S30025/16
[Appellant] did not file a post-sentence motion
or a direct appeal. His judgment of sentence, thus,
became final on or about February 28, 2014.
On December 26, 2014, [appellant] filed a
pro se petition under the Post Conviction Relief Act.
He claimed that plea counsel[2] was ineffective for
allegedly leading him to believe that his concurrent
sentences in this case would be run concurrently to a
sentence in Lycoming County. No mention was
made at the guilty plea hearing of a Lycoming
County sentence and the aggregate sentence
imposed here was not run concurrently to any
out-of-county sentence.
This court appointed Francis M. Walsh,
Esquire[,] (“PCRA counsel”) to represent [appellant].
On April 22, 2015, PCRA counsel filed an amended
petition on behalf of [appellant], asserting that plea
counsel had been ineffective for failing to advise
[appellant] on the record at the guilty plea hearing of
the elements of the robbery offenses to which he
was pleading guilty and the maximum penalties
[appellant] faced. On May 13, 2015, the
Commonwealth filed an answer and motion to
dismiss the PCRA petition.
After reviewing the amended petition, the
Commonwealth’s response and the record, this court
issued a notice of intent to dismiss without a
hearing. [Appellant], through PCRA counsel,
responded to the notice. After reviewing the
arguments contained in [appellant’s] response, and
concluding they did not compel a different
conclusion, this court entered a final order of
dismissal. [Appellant], through PCRA counsel, filed a
notice of appeal and subsequently complied with this
court’s directive to produce a concise statement of
errors in accordance with Pennsylvania Rule of
Appellate Procedure 1925(b).
2
Assistant Public Defender Keith A. Harbison represented appellant at the
guilty plea and sentencing hearing.
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PCRA court opinion, 9/16/15 at 1-2 (footnote omitted).
Appellant raises the following issue for our review:
Did the trial court err in dismissing the amended
Post-Conviction Relief Act petition without a hearing
where appellant’s amended Post-Conviction Relief
Act petition established arguable merit that
appellant’s trial counsel was ineffective because the
appellant’s plea was unintelligible, and involuntary
since neither the elements of the offense of a felony
one robbery, nor the maximum penalties were
placed on the record during the oral colloquy nor
were they contained in the written colloquy that was
submitted at the time of the guilty plea?
Appellant’s brief at 3 (capitalization omitted).
PCRA petitions invoking ineffective assistance of counsel during guilty
plea proceedings are subject to the following standard of review:
“On appeal from the denial of PCRA relief, our
standard of review is whether the findings of the
PCRA court are supported by the record and free of
legal error.” Commonwealth v. Abu-Jamal, 574
Pa. 724, 731, 833 A.2d 719, 723 (2003). We review
allegations of counsel’s ineffectiveness in connection
with a guilty plea under the following standards:
The standard for post-sentence
withdrawal of guilty pleas dovetails with
the arguable merit/prejudice
requirements for relief based on a claim
of ineffective assistance of plea counsel,
see generally Commonwealth v.
Kimball, 555 Pa. 299, 312, 724 A.2d
326, 333 (1999), under which 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. See,
e.g., [Commonwealth v.] Allen, 557
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Pa. [135,] 144, 732 A.2d [582,] 587
[(1999)] (“Allegations 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. Flanagan, 578 Pa. 587, 608-
09, 854 A.2d 489, 502 (2004). This standard is
equivalent to the “manifest injustice” standard
applicable to all post-sentence motions to withdraw a
guilty plea. Commonwealth v. Watson, 835 A.2d
786 (Pa.Super. 2003). Furthermore,
[T]he constitutional ineffectiveness
standard requires the defendant to rebut
the presumption of professional
competence by demonstrating that:
(1) his underlying claim is of arguable
merit; (2) the particular course of
conduct pursued by counsel did not have
some reasonable basis designed to
effectuate his interests; and (3) but for
counsel’s ineffectiveness, there is a
reasonable probability that the outcome
of the proceedings would have been
different. Commonwealth v.
(Michael) Pierce, 567 Pa. 186, 786
A.2d 203, 213 (2001); Commonwealth
v. Kimball, 555 Pa. 299, 724 A.2d 326,
333 (1999). A failure to satisfy any
prong of the test for ineffectiveness will
require rejection of the claim.
Commonwealth v. Gribble, 580 Pa. 647, 657, 863
A.2d 455, 460 (2004).
Commonwealth v. Morrison, 878 A.2d 102, 104-105 (Pa.Super. 2005)
(en banc), appeal denied, 887 A.2d 1241 (Pa. 2005).
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Specifically, appellant avers that the written and oral colloquies did not
“describe the nature of the charge of robbery nor do they explain the
maximum sentences that [appellant] could have received for four (4)
robberies.” (Appellant’s brief at 11.) We first address whether appellant’s
claim has arguable merit pursuant to the first prong under Pierce. In order
to do so, we must determine whether appellant established that a manifest
injustice has taken place.
We find Commonwealth v. Barbosa, 819 A.2d 81 (Pa.Super. 2003),
to be instructive because the instant case, like Barbosa, involves a
negotiated plea agreement with regards to sentencing. (Notes of testimony,
1/28/14 at 12; appellant’s brief at 4.) The Barbosa court held,
that if a defendant who entered a negotiated guilty
plea was either misinformed or not informed as to
the maximum possible sentence he could receive if
he went to trial, and the misinformation or lack
of information was material to his decision to
accept the negotiated plea, then manifest
injustice is established and the plea may be
withdrawn.
Id. at 82 (emphasis added). The court also held that a failure to notify a
defendant of the possible maximum sentence in a negotiated plea
agreement case would only be considered grounds to withdraw the plea if
the defendant’s lack of knowledge as to the maximum sentence played a
material role in the defendant’s decision to accept the plea. Id. at 86.
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The record reflects appellant had knowledge of the maximum
sentences associated with each count, as demonstrated by the following
colloquy:
[BY THE COURT:]
Q: Okay. Has your attorney explained to you
each and every element of the crimes you are
pleading guilty to today, sir?
A: Yes.
Q: Okay. And I think you are pleading guilty, as I
understand, to Counts 9, 10, 11 and 12, is that
correct, of this Bill of Information?
[DEFENSE COUNSEL]: Yes.
THE COURT: Okay. And they are all robbery in fear
of serious bodily injury, each one?
[DEFENSE COUNSEL]: Correct.
THE DEFENDANT: Yes.
BY THE COURT:
Q: And they are all felonies of the first degree?
A: Yes.
Q: Did your counsel explain to you the maximum
period of incarceration and/or fines you are
exposed to on each one of those counts?
A: Yes.
Q: And did he explain to you each of the elements
that the Commonwealth would have to prove
beyond a reasonable doubt before you could
be convicted?
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A: Yes.
Q: Knowing that, do you still wish to plead guilty?
A: Yes.
Notes of testimony, 1/28/14 at 7-8.
We, therefore, find that the record belies appellant’s claim.
Additionally, appellant never avers that Attorney Harbison’s alleged
off-the-record recitation as to the maximum sentences appellant faced
played a material role in his decision to accept the guilty plea, nor does
appellant allege that Attorney Harbison’s alleged off-the-record recitation
was either incorrect or would have constituted an illegal sentence, therefore,
the claim lacks arguable merit.
We now turn to appellant’s averment that he was not properly advised
of the elements of robbery. (See appellant’s brief at 9.) In Morrison, we
stated:
Our Supreme Court has repeatedly stressed that
where the totality of the circumstances establishes
that a defendant was aware of the nature of the
charges, the plea court’s failure to delineate the
elements of the crimes at the oral colloquy, standing
alone, will not invalidate an otherwise knowing and
voluntary guilty plea. Commonwealth v. Schultz,
505 Pa. 188, 477 A.2d 1328 (1984);
Commonwealth v. Martinez, 499 Pa. 417, 453
A.2d 940 (1982); Commonwealth v. Shaffer, 498
Pa. 342, 446 A.2d 591 (1982). “Whether notice [of
the nature of the charges] has been adequately
imparted may be determined from the totality of the
circumstances attendant upon the plea[.]”
Martinez, supra at 420, 453 A.2d at 942.
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In Schultz, the Supreme Court refused to invalidate
a guilty plea to robbery and reckless endangerment
and concluded that the defendant was aware of the
nature of the charges, despite the fact that the
defendant was not told that theft was an element of
robbery and even though the defendant had not
successfully completed his armed robbery. The
defendant’s awareness was premised upon the
evidence against him outlined at the time of the oral
colloquy.
In Martinez, the defendant pled guilty to third
degree murder and robbery, and the record
established that “no recitation of the elements of the
crimes” or even the intent aspect of third degree
murder was made during the oral colloquy. Id. at
419, 453 A.2d at 942. Since the circumstances
surrounding the plea established that it was
voluntary and knowing and that the defendant was
aware of the nature of the charges based on the
extensive evidence of actual guilt presented at the
oral colloquy, our Supreme Court stated that it did
“not deem this oversight to be fatal . . . .” Id. It
held, “In a case where ample, competent evidence in
support of a guilty plea is made a matter of record,
allegations of manifest injustice arising from the
guilty plea must go beyond a mere claim of lack of
technical recitation of the legal elements of the
crimes.” Id. at 422, 453 A.2d at 943. Similarly, in
Shaffer, the Court charged the defendant with
knowledge of the nature of the offenses despite the
lack of review of the elements of the offenses to
which he pled guilty because the plea was tendered
after the Commonwealth had entered its evidence at
trial.
Morrison, 878 A.2d at 107-108.
Here, we likewise find that despite the failure to outline the elements
of robbery on the record, the record demonstrates that appellant knowingly,
intelligently, and voluntarily entered into the guilty plea agreement. In the
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written colloquy, appellant indicated that Attorney Harbison explained “all
the things that a person must have done to be guilty” of robbery. (Written
colloquy at 3.) Appellant also acknowledged on the record that
Attorney Harbison “explained to [him] each and every element of the
crimes” to which he pled guilty. (Notes of testimony, 1/28/14 at 7.)
Moreover, the Commonwealth conducted a recitation of the facts on the
record to which appellant admitted as part of his guilty plea. (See id. at
10-11.) We, therefore, find that based on a totality of the circumstances,
appellant entered into a knowing, intelligent, and voluntary guilty plea, and
his claim under the PCRA has no arguable merit.3
Order affirmed.
Judgment Entered.
JosephD.Seletyn,Esq.
Prothonotary
Date: 5/11/2016
3
We note that in his brief, appellant only attempts to satisfy the first Pierce
prong and then requests a hearing “to see if [he] can prove all three (3)
prongs of his ineffectiveness claim.” (Appellant’s brief at 11.) In order to be
granted relief for ineffective assistance of counsel pursuant to the PCRA,
appellant is required to satisfy all three prongs. Where a petitioner fails to
satisfy each prong, the claim will be rejected. See Gribble, supra at 460.
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