Com. v. Blackman, S.

J-S34022-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SETH R. BLACKMAN, JR. :
:
Appellant : No. 1308 WDA 2021
Appeal from the PCRA Order Entered October 4, 2021
In the Court of Common Pleas of Allegheny County
Criminal Division at CP-02-CR-0002933-2019
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SETH R. BLACKMAN, JR. :
:
Appellant : No. 1309 WDA 2021
Appeal from the PCRA Order Entered October 4, 2021
In the Court of Common Pleas of Allegheny County
Criminal Division at CP-02-CR-0003386-2019
BEFORE: DUBOW, J., MURRAY, J., and PELLEGRINI, J.*
MEMORANDUM BY MURRAY, J.: FILED: DECEMBER 7, 2022
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S34022-22
Seth R. Blackman, Jr. (Appellant), appeals from the order dismissing his
first petition filed pursuant to the Post Conviction Relief Act (PCRA), 42
Pa.C.S.A. §§ 9541-9546. After careful review, we affirm.1
The PCRA court summarized the procedural history as follows:
On July 2[9], 2020, Appellant … entered a general plea of guilty
at two petitions. At CP-02-CR-03386-2019, Appellant pled guilty
to one count each of Possession of Firearm Prohibited, Receiving
Stolen Property, Possessing a Firearm without a License, Resisting
Arrest, Escape, and Possession of Marijuana.[FN1] At CP-02-CR-
02933-2019, Appellant pled [guilty] to one count each of
Possession of a Firearm Prohibited, Possessing a Firearm Without
a License; two counts of Possession of a Controlled Substance,
and one count each of Resisting Arrest, False Identification to Law
Enforcement Officer, and Possession of Marijuana.[FN2] [The trial
c]ourt sentenced Appellant to 6-12 years’ incarceration in the
aggregate on these charges and further sentenced him to a
consecutive 3-6 years for a probation violation. Appellant did not
file a direct appeal.[2]
[FN1]
18 Pa.C.S. §§ 6105(a)(1), 3925(a), 6106(a) (1),
5104, 5121(a), and 35 [P.S.] § 780-113(a)(31),
respectively.
18 Pa.C.S. §§ 6105(a)(1), 6106(a)(1), 35 [P.S.]
[FN2]
§ 780-113(a)(16), 18 Pa.C.S.[A.] § 5104, 18 Pa.C.S.
____________________________________________
1 Appellant complied with the Pennsylvania Supreme Court’s directive in
Commonwealth v. Walker, 185 A.3d 969, 971 (Pa. 2018) (holding that
“where a single order resolves issues arising on more than one docket,
separate notices of appeal must be filed for each case.”). On December 23,
2021, this Court consolidated the appeals sua sponte.
2The record indicates that on August 7, 2020, Appellant obtained new counsel,
who filed a motion to reconsider sentence. There is no order disposing of the
motion on the docket or in the record, although new counsel at the PCRA
hearing stated that the trial court “did eliminate a consecutive three-year
[sentence of] probation, but the court would not change the incarceration.”
N.T., 9/27/21, at 4-5. The record also reflects that the PCRA court responded
to a claim in Appellant’s amended PCRA petition and issued an order awarding
Appellant credit for time served. Order, 11/3/21, at 1 (unnumbered).
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§§ 4914, 5121(a), and 35 [P.S.] § 780-113(a)(31),
respectively.
Instead, Appellant filed a pro se “APPEAL: INEFFECTIVE
ASSISTANCE OF COUNSEL,” on October [7], 2020. [The PCRA
c]ourt appointed counsel, who filed an amended PCRA Petition on
March 26, 2021. [The PCRA c]ourt held a hearing on the Petition
on September 27, 2021, and on October 4, 2021, dismissed the
Petition. Appellant filed a Notice of Appeal on November 3, 2021,
and a Concise Statement of Errors Complained of on Appeal on
November 23, 2021.
PCRA Court Opinion, 12/14/21, at 2 (two footnotes in original, one footnote
added).
Appellant’s counsel failed to file an appellate brief. Consequently, this
Court issued an order remanding the case for the PCRA court to determine
whether
counsel has abandoned Appellant and to take further action as
required to protect Appellant’s right to appeal. The [PCRA] court
shall notify this Court, in writing, within the 30-day period, of all
findings and actions taken thereon. JURISDICTION IS
RETAINED.
Order, 3/21/22, at 1 (emphasis in original).
On March 28, 2022, while this appeal was pending, PCRA counsel filed
a second PCRA petition entitled “POST CONVICTION RELIEF ACT PETITION TO
REINSTATE APPEAL NUNC PRO TUNC.” That same day, the PCRA court
entered an order granting the petition and reinstating Appellant’s appeal
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rights nunc pro tunc.3 Appellant did not file a new notice of appeal. By
correspondence dated April 13, 2022, the PCRA court advised this Court that
PCRA counsel had not abandoned Appellant. Letter, 4/13/22, at 1. On July
11, 2022, Appellant’s counsel filed an appellate brief. The Commonwealth
thereafter responded.
On appeal, Appellant raises the following issues:
I. Did the [trial c]ourt fail to explain each of the elements of
the crimes to which [Appellant] pled guilty?
II. Specifically, did the [trial c]ourt fail to explain to [Appellant]
that the Escape charge (18 Pa.C.S. § 5121(a)) required that
[Appellant] removed himself or fail [sic] to return from
official detention, which he was never subject to before
he was arrested for, inter alia, Escape?
III. Was the Guilty Plea Colloquy completed by counsel outside
of [Appellant’s] presence?
IV. Did [Appellant] enter a guilty plea without an understanding
of the nature of the charges to which he was pleading, his
plea was entered unintelligently, involuntarily and
unknowingly in violation [of the] Due Process Clauses of the
Pennsylvania and U.S. Constitutions?
V. Was [Appellant] never specifically informed that part of the
offered plea deal included dropping certain charges;
instead, [Appellant] was merely informed of the period of
incarceration offered by the prosecutor?
____________________________________________
3 In the petition, PCRA counsel argues Appellant “should not be deprived of
his appellate rights because of what amounts to a clerical error made by his
counsel that led to an admittedly greater error.” PCRA Petition, 3/28/22, at
6. However, this Court did not dismiss the appeal of Appellant’s amended
PCRA petition. We remanded for clarification of counsel’s status. The PCRA
court, nevertheless, entered an order reinstating Appellant’s appeal rights,
nunc pro tunc.
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Appellant’s Brief at 5 (emphasis in original).
Prior to addressing the merits of Appellant’s issues, we examine whether
the issues are properly before us. Appellant timely filed his pro se PCRA
petition alleging ineffective assistance of plea counsel, which did not seek
reinstatement of his direct appeal rights. Pro Se PCRA Petition, 10/7/20, at
1-2 (unnumbered).4 In his counseled, amended PCRA petition, Appellant
expanded on his pro se claims of ineffective assistance of plea counsel, but
did not seek reinstatement of his direct appeal rights. Amended PCRA Petition,
3/26/21, at 4-20.5
____________________________________________
4 Appellant raised eight issues in his pro se petition, which he entitled “Appeal:
Ineffective Assistance of Counsel.” Pro Se PCRA Petition, 10/7/20, at 1-2
(unnumbered). He claimed the ineffective assistance of counsel. Id. In part,
Appellant asserted, “[t]he Appellant was not properly represented by
counsel[.]” Id. at 1 ¶ 1. He further claims, “[A]ppellant took his plea not
voluntarily, intelligently, and knowingly[;] …. [A]ppellant was under the
impression his was going to be release[d] to JRS[;] … he was promised this
by his counsel[.]” Id. at 1 ¶ 2. He also claims he did not “fill[] out” the plea
paperwork but received it completed by counsel. Id. at ¶ 3. “[A]ppellant had
information withheld from him by his counsel[.]” Id. at 2 ¶ 5. “[Counsel]
seemed to be under the influence of a drug substance of some sort” during
Appellant’s plea proceedings. Id. at 2 ¶ 7. Lastly, Appellant claimed he was
“not properly represented … [because counsel] committed legal malpractice
against [A]ppellant[.]” Id. at 2 ¶ 8.
5 In his amended PCRA petition, Appellant again raised claims of ineffective
assistance of trial/plea counsel. Amended PCRA Petition, 3/26/21, at 4-20.
He contended, “[t]rial counsel was ineffective for failing to ensure petitioner
received credit for time served.” Id. at 4. He also maintained, “Trial counsel
was ineffective for failing to correct a defective guilty plea colloquy.” Id. at
6. The first three issues raised in the instant appeal are presented in the
amended PCRA petition as subheadings demonstrating the bases for his
ineffectiveness claims, and as examples of counsel’s alleged ineffectiveness.
See id. at 6-17.
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J-S34022-22
After counsel failed to file an appellate brief, this Court remanded to the
PCRA court and retained jurisdiction. We remanded solely for the PCRA court
to determine whether counsel had abandoned Appellant. Order, 3/21/22.
Despite this Court expressly stating that it was retaining jurisdiction, counsel
filed a second PCRA petition. See PCRA Petition, 3/28/22, at 2-6. Appellant
titled this petition: “Post-Conviction Relief Act Petition to Reinstate Appeal
Rights Nunc Pro Tunc.” Id. (caption).
The Pennsylvania Supreme Court has held that a second or subsequent
PCRA petition cannot be filed until “the resolution of review of the pending
PCRA petition by the highest state court in which review is sought, or upon
the expiration of the time for seeking such review.” Commonwealth v. Lark,
746 A.2d 585, 588 (Pa. 2000), overruled on other grounds,
Commonwealth v. Small, 238 A.3d 1267 (Pa. 2020); but see
Commonwealth v. Porter, 35 A.3d 4 (Pa. 2012) (PCRA court may consider
second or subsequent PCRA petition where first petition has been held in
abeyance at request of petitioner and case is not on appeal). Thus, Appellant’s
second PCRA petition was improper, as the PCRA court had dismissed
Appellant’s first PCRA petition, and the appeal therefrom presently is before
this Court. See Second PCRA Petition, 3/28/22, ¶¶ 7-8 (recognizing, “By
Order dated October 4, 2021, the [first] Petition was denied and dismissed.
… [Appellant] timely filed [a] notice of appeal on November 3, 2021.”
(emphasis added)).
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In addition, the PCRA court exceeded the scope of remand by entering
its March 28, 2022, order purportedly granting Appellant’s petition to reinstate
his appeal, nunc pro tunc. It is well settled that following remand, a lower
court must strictly comply with this Court’s mandate. See Commonwealth
v. Null, 186 A.3d 424, 429 (Pa. Super. 2018); see also Gocek v. Gocek,
612 A.2d 1004, 1009 n.7 (Pa. Super. 1992) (“on remand, the scope of inquiry
should not exceed the perimeters set forth herein”). Appellant’s appeal of the
denial of relief on his first PCRA petition remains before us for review.
Nevertheless, we may only consider issues raised by Appellant in his pro se
and amended PCRA petitions, namely claims of ineffective assistance of
counsel.
We note Appellant waived any direct challenge to the validity of his
guilty plea because he did not object during the plea colloquy or file a motion
to withdraw his plea within 10 days of sentencing. See N.T., 7/29/20, at 2-
41; Motion to Reconsider Sentence, 8/7/20, at 2-4. See also
Commonwealth v. Lincoln, 72 A.3d 606, 609-10 (Pa. Super. 2013) (“A
defendant wishing to challenge the voluntariness of a guilty plea … must either
object during the plea colloquy or file a motion to withdraw the plea within ten
days of sentencing. Failure to employ either measure results in waiver.”
(citations omitted)); Pa.R.Crim.P. 720(B)(1)(a)(i). Further, Appellant’s first
three and one-half issues are also subject to waiver because Appellant could
have raised them on direct appeal but did not. See 42 Pa.C.S.A. § 9544(b)
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(“For purposes of this subchapter, 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 [sic] proceeding.”). Thus, we are
precluded from considering Appellant’s first three issues and part of his fourth
issue.
In his fourth and his fifth issues, Appellant argues that plea counsel was
ineffective. Appellant’s Brief at 25-33. We disagree.
Appellate review of a PCRA court’s dismissal of a PCRA petition is
limited to the examination of whether the PCRA court’s
determination is supported by the record and free of legal error.
The PCRA court’s findings will not be disturbed unless there is no
support for the findings in the certified record. This Court grants
great deference to the findings of the PCRA court, and we will not
disturb those findings merely because the record could support a
contrary holding. In contrast, we review the PCRA court’s legal
conclusions de novo.
Commonwealth v. Maxwell, 232 A.3d 739, 744 (Pa. Super. 2020) (en banc)
(citations and quotation marks omitted). A “PCRA court’s credibility findings
are to be accorded great deference, and where supported by the record, such
determinations are binding on a reviewing court.” Commonwealth v.
Williams, 141 A.3d 440, 452 (Pa. 2016).
For a PCRA petitioner to obtain relief on an ineffectiveness claim, he
must establish:
(1) the underlying claim has arguable merit; (2) no reasonable
basis existed for counsel’s action or failure to act; and (3) he
suffered prejudice as a result of counsel’s error, with prejudice
measured by whether there is a reasonable probability the result
of the proceeding would have been different. Commonwealth v.
Chmiel, 612 Pa. 333, 30 A.3d 1111, 1127 (Pa. 2011) (employing
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ineffective assistance of counsel test from Commonwealth v.
Pierce, 515 Pa. 153, 527 A.2d 973, 975-76 (Pa. 1987)). Counsel
is presumed to have rendered effective assistance. Additionally,
counsel cannot be deemed ineffective for failing to raise a
meritless claim. Finally, because a PCRA petitioner must establish
all the Pierce prongs to be entitled to relief, we are not required
to analyze the elements of an ineffectiveness claim in any specific
order; thus, if a claim fails under any required element, we may
dismiss the claim on that basis.
Commonwealth v. Treiber, 121 A.3d 435, 445 (Pa. 2015).
Appellant alleges plea counsel was ineffective for not objecting to the
trial court’s failure to explain the elements of each offense during Appellant’s
oral plea colloquy. Appellant’s Brief at 26. He also claims plea counsel
rendered ineffective assistance by failing to inform him that the
Commonwealth’s negotiated plea offer included the dropping of charges and
a prescribed sentence. Id. at 27.
The Pennsylvania Supreme Court has explained:
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.
In determining whether a guilty plea was entered knowingly and
intelligently, a reviewing court must review all of the
circumstances surrounding the entry of that plea.
Commonwealth v. Allen, 732 A.2d 582, 587 (Pa. 1999) (citations omitted).
A valid plea colloquy must delve into six areas: 1) the nature of
the charges, 2) the factual basis for the plea, 3) the right to a jury
trial, 4) the presumption of innocence, 5) the sentencing ranges,
and 6) the plea court’s power to deviate from any recommended
sentence.
***
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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. 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.
***
Further supporting these precepts is the following comment to
Pa.R.Crim.P. 590:
It is advisable that the judge conduct the examination
of the defendant. However, paragraph (A) does not
prevent defense counsel or the attorney for the
Commonwealth from conducting part or all of the
examination of the defendant, as permitted by the
judge. In addition, nothing in the rule would preclude
the use of a written colloquy that is read, completed,
signed by the defendant, and made part of the record
of the plea proceedings. This written colloquy would
have to be supplemented by some on-the-record oral
examination. Its use would not, of course, change
any other requirements of law, including these rules,
regarding the prerequisites of a valid guilty plea or
plea of nolo contendere.
To summarize, whether a defendant is aware of the nature of the
offenses depends on the totality of the circumstances, and a plea
will not be invalidated premised solely on the plea court’s failure
to outline the elements of the crimes at the oral colloquy.
Commonwealth v. Morrison, 878 A.2d 102, 107–09 (Pa. Super. 2005)
(citations omitted).
The record reflects that during the oral guilty plea colloquy, the trial
court asked Appellant whether plea counsel had explained the nature of the
charges and the elements of the offenses; Appellant answered “yes.” N.T.,
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7/29/20, at 19. Appellant also completed a written plea colloquy in which he
agreed that plea counsel “discussed … the elements of each offense” and “the
factual basis of each charged offense.” Written Guilty Plea Colloquy, 7/29/20,
at 2. At the PCRA hearing, plea counsel testified that he discussed the
elements of each offense with Appellant, and the PCRA court credited this
testimony. N.T. 9/27/21, at 15, 112. Furthermore, Appellant is bound by the
affirmations he made under oath at the guilty plea hearing. See
Commonwealth v. Willis, 68 A.3d 997, 1009 (Pa. Super. 2013) (“Appellant
is bound by these statements, which he made in open court while under oath,
and he may not now assert grounds for withdrawing the plea which contradict
the statements.”). Finally, the record contains the criminal informations which
define and describe the elements of each offense. Appellant conceded at the
PCRA hearing that he received this information prior to entering his guilty plea.
N.T., 9/27/21, at 93. If Appellant did not understand the elements of the
offenses, he could have inquired at the plea hearing, but did not. In sum,
plea counsel was not ineffective for failing to raise a meritless objection at the
plea hearing.
Appellant’s claim that plea counsel was ineffective for failing to explain
that the Commonwealth’s plea offer of 6 - 12 years in prison included the
dropping of charges, specifically the escape charge, is equally unavailing. See
Appellant’s Brief at 27-33. Assuming, arguendo, that counsel did not
communicate this information, Appellant has not shown that counsel’s alleged
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failure caused him to reject the offer. At the PCRA hearing, both plea counsel
and Appellant testified that Appellant was unwilling to accept any plea offer
that included state prison time. N.T., 9/27/21, at 12-16, 20-22, 63, 69. The
record also reflects that the trial court did not sentence Appellant on the
escape charge; indeed, the trial court imposed the same sentence originally
offered by the Commonwealth. See N.T., 7/29/20, at 38-40; N.T., 9/27/21,
at 48, 74, 111.
Appellant contends he was prejudiced by counsel’s ineffectiveness
because he pled guilty to escape, which resulted in a higher prisoner
classification. See N.T., 9/27/21, at 73-78; Appellant’s Brief at 30-33.
Appellant provides no factual support or legal authority in support of his claim.
See id. The Supreme Court has held: “[A] defendant’s lack of knowledge of
collateral consequences of the entry of a guilty plea does not undermine the
validity of the plea, and counsel is therefore not constitutionally ineffective for
failure to advise a defendant of the collateral consequences of a guilty plea.”
Commonwealth v. Abraham, 62 A.3d 343, 350 (Pa. 2012) (citation
omitted).
Here, the record reveals that Appellant chose to enter a general guilty
plea. N.T., 9/27/21, at 20. Appellant did so because he believed he “could
get a county sentence [from the trial] court.” Id. at 22; see also id. at 63,
69, 91. He was mistaken. The PCRA court determined that Appellant’s guilty
plea was knowing and voluntary. See PCRA Court Opinion, 12/14/21, at 3-5.
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Upon review, the PCRA court’s dismissal of Appellant’s PCRA petition is
supported by the record and free of legal error.
Order affirmed.
Judge Dubow joins the memorandum.
Judge Pellegrini files a concurring memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/07/2022
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