Com. v. Lewis, W.

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
WILLIAM J. LEWIS, : No. 670 WDA 2019
:
Appellant :
Appeal from the PCRA Order Entered March 29, 2019,
in the Court of Common Pleas of Warren County
Criminal Division at Nos. CP-62-CR-0000066-2017,
CP-62-CR-0000067-2017, CP-62-CR-0000068-2017,
CP-62-CR-0000069-2017, CP-62-CR-0000070-2017
BEFORE: PANELLA, P.J., KUNSELMAN, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED DECEMBER 03, 2020
William J. Lewis appeals from the March 29, 2019 order dismissing his
petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A.
§§ 9541-9546. After careful review, we affirm.
The relevant facts and procedural history of this case, as gleaned from
the PCRA court opinion, are as follows:
This case arose following appellant’s confession to
police on November 2, 2015, that [he] and his son had
committed a series of robberies in Sugar Grove,
Pennsylvania over the past several weeks. Appellant
was subsequently charged with five (5) counts of
burglary, five (5) counts of criminal conspiracy to
commit burglary, five (5) counts of criminal trespass,
five (5) counts of theft by unlawful taking, five (5)
counts of receiving stolen property, along with
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three (3) counts of criminal mischief.[1] Following
plea negotiations, appellant pled guilty to five (5)
counts of criminal conspiracy and five (5) counts of
theft by unlawful taking. The rest of the charges were
nolle prossed. On October 6, 2017, [the trial] court
sentenced appellant on each count to run consecutive
for a total aggregate sentence of a minimum [of]
120 months to a maximum of 240 months, with credit
for time served. Appellant’s motion for
reconsideration of sentence was denied on
November 3, 2017.
On October 15, 2018, appellant filed his first [pro se]
PCRA [petition] regarding docket number[s] 66, 67,
and 68. Subsequently, [the PCRA] court appointed
PCRA counsel on October 19, 2018, and permitted
counsel to file an amended petition. On November 30,
2018, PCRA counsel filed a motion to extend time for
filing an amended petition for PCRA, which the [PCRA]
court granted. On January 28, 2019, PCRA counsel
filed the amended petition for PCRA.
PCRA court opinion, 5/24/19 at 1-2 (bolding and italics added; extraneous
capitalization omitted).
On March 29, 2019, the PCRA court denied appellant’s amended petition
following an evidentiary hearing. On April 26, 2019, PCRA counsel2 filed
separate, identical timely notices of appeal on appellant’s behalf at CP-62-CR-
0000066-2017, CP-62-CR-0000067-2017, CP-62-CR-0000068-2017,
CP-62-CR-0000069-2017, and CP-62-CR-0000070-2017, listing all five
docket numbers on each. On May 1, 2019, the PCRA court ordered appellant
1 18 Pa.C.S.A. §§ 3502(a), 903(a), 3503(a), 3921(a), 3925(a), and 3304(a),
respectively.
2 Alan M. Conn, Esq.
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to file a concise statement of errors complained of on appeal, in accordance
with Pa.R.A.P. 1925(b), within 21 days. Appellant failed to comply. On
May 24, 2019, the PCRA court filed its Rule 1925(a) opinion, noting that
appellant had failed to comply with its Rule 1925(b) order but nonetheless
electing to address the ineffectiveness claims raised in his amended PCRA
petition. (See PCRA court opinion, 5/24/19 at 3-4.)3
On May 21, 2019, this court issued an order directing appellant to show
cause why his appeal should not be quashed pursuant to our supreme court’s
holding in Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018). Appellant
filed a response, averring that Walker is not applicable because “the cases
were heard by the same court and regards a plea that was entered on the
same date.” (Appellant’s response to rule to show cause, 6/6/19.) This court
discharged the rule to show cause, referring the issue to the merits panel.
Thereafter, on January 28, 2020, the disposition of this case was stayed,
pending the resolution of a number of en banc cases in this court concerning
the proper application of Walker and Commonwealth v. Creese, 216 A.3d
1142 (Pa.Super. 2019).
Prior to consideration of the merits of this appeal, we must first address
whether appellant’s notices of appeal complied with the requirements set forth
in the Pennsylvania Rules of Appellate Procedure and Walker. In Walker,
3The record reflects that appellant ultimately filed a Rule 1925(b) statement
on July 3, 2019, well past the 21-day deadline.
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our supreme court provided a bright-line mandate requiring that “where a
single order resolves issues arising on more than one docket, separate notices
of appeal must be filed for each case,” or the appeal will be quashed. Id. at
971, 976-977. The Walker court applied its holding prospectively to any
notices of appeal filed after June 1, 2018. In the instant case, appellant filed
separate notices of appeal at each docket number in April 2019, and therefore,
the Walker mandate applies. Appellant’s appeals were of a single order
resolving issues arising on all five docket numbers. A review of the record
further demonstrates that the notices of appeal referenced all five docket
numbers in their respective captions. A recent en banc panel of this court
held that such a practice does not invalidate appellant’s separate notices of
appeal. Commonwealth v. Johnson, 236 A.3d 1141, 1148 (Pa.Super.
2020) (en banc) (overruling the pronouncement in Creese, 216 A.3d at
1144, that “a notice of appeal may contain only one docket number”).
Accordingly, we shall consider appellant’s claim on appeal.
Appellant raises the following issue for our review:
Was appellant’s [plea] counsel[4] ineffective in
representing him as he advised [appellant] to enter a
plea to multiple counts of conspiracy – burglary and
theft by unlawful taking, knowing that the charges did
not merge, and failing to make a counter-offer
involving charges of burglary to which the charges
would merge?
4Appellant was represented during his guilty plea hearing by John Parroccini,
Esq. (hereinafter, “plea counsel”).
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Appellant’s brief at 4 (extraneous capitalization omitted).
Preliminarily, we must address the timeliness of appellant’s
Rule 1925(b) statement, which was filed long after the expiration of the
21-day filing period. Generally, “a complete failure to file, or failure to timely
file, a Rule 1925(b) statement results in waiver of the issues.”
Commonwealth v. Thompson, 39 A.3d 335, 341 (Pa.Super. 2012) (citation
omitted); see also Pa.R.A.P. 1925(b)(4)(vii). As noted, the PCRA court
ordered appellant to file a Rule 1925(b) concise statement within 21 days of
the date of its May 1, 2019 order, or by May 22, 2019. Appellant, in turn,
filed his Rule 1925(b) on July 3, 2019, raising the following infectiveness
claims:
5. At the [PCRA] hearing, [appellant] testified that
he only spoke with [plea counsel] briefly before
entering a plea and lacked full knowledge of the
consequences of the plea.
....
8. [Plea counsel] did not notify [a]ppellant that the
charges did not merge.
9. [Plea counsel] did not make a counter-offer to
attempt to have [appellant] plea[] to burglary
rather than conspiracy – burglary.
10. [Plea counsel] was therefore ineffective in
representing [appellant].
Rule 1925(b) statement, 7/3/19 at ¶¶ 5, 8-10 (citations and extraneous
capitalization omitted).
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The record contains no indication that appellant sought, or that the PCRA
court granted, an extension of time for filing. However, the PCRA court’s
Rule 1925(a) opinion addresses the sum and substance of appellant’s
ineffectiveness claims as raised in his amended PCRA petition and at the
March 29, 2019 evidentiary hearing. (See PCRA court opinion, 5/24/19 at
4-6.) Accordingly, we may consider the merit of appellant’s appeal. See
Commonwealth v. Burton, 973 A.2d 428, 432-434 (Pa.Super. 2009)
(holding that, while the failure to file a timely court-ordered Rule 1925(b)
statement is per se ineffectiveness of counsel, remand is not necessary and
we can address the merits of the appeal where the court prepared a
Rule 1925(a) opinion addressing the issues raised).
Our standard of review of an order dismissing a petition under the PCRA
is “whether the PCRA court’s determination is supported by the record and
free of legal error.” Commonwealth v. Miller, 102 A.3d 988, 992 (Pa.Super.
2014) (citation omitted). “The PCRA court’s findings will not be disturbed
unless there is no support for the findings in the certified record.”
Commonwealth v. Lawson, 90 A.3d 1, 4 (Pa.Super. 2014) (citations
omitted). “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.” Commonwealth v. Hickman, 799 A.2d 136, 140
(Pa.Super. 2002) (citation omitted).
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The crux of appellant’s claim is that plea counsel was ineffective for
advising him to plead guilty to five counts each of criminal conspiracy and
theft by unlawful taking, which did not merge for sentencing purposes, and
that this advice induced him to enter an unknowing and involuntary plea.
(Rule 1925(b) statement, 7/3/19 at ¶ 5; see also amended PCRA petition,
1/28/19.) Appellant avers that plea counsel should have made a counter-offer
to the Commonwealth for burglary and theft by unlawful taking, as these
charges – unlike criminal conspiracy and theft by unlawful taking – would have
merged for sentencing purposes. (Appellant’s brief 8-9.) For the following
reasons, we disagree.
To prevail on a claim of ineffective assistance of counsel under the PCRA,
a petitioner must plead and prove by a preponderance of the evidence that
counsel’s ineffectiveness “so undermined the truth-determining process that
no reliable adjudication of guilt or innocence could have taken place.”
42 Pa.C.S.A. § 9543(a)(2)(ii). We apply a three-pronged test for determining
whether trial counsel was ineffective, derived from the test articulated by the
United States Supreme Court in Strickland v. Washington, 466 U.S. 668,
687 (1984), and as applied in Commonwealth v. Pierce, 527 A.2d 973 (Pa.
1987). Commonwealth v. Simpson, 66 A.3d 253, 260 (Pa. 2013).
The Pierce test requires a PCRA petitioner to prove:
(1) the underlying legal claim was of arguable merit;
(2) counsel had no reasonable strategic basis for his
action or inaction; and (3) the petitioner was
prejudiced—that is, but for counsel’s deficient
stewardship, there is a reasonable likelihood the
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outcome of the proceedings would have been
different.
Id., citing Pierce, 527 A.2d at 975.
This court has explained that a petitioner “must meet all three prongs
of the test for ineffectiveness[.]” Commonwealth v. Charleston, 94 A.3d
1012, 1020 (Pa.Super. 2014) (citation and internal quotation marks omitted),
appeal denied, 104 A.3d 523 (Pa. 2014). “[C]ounsel is presumed to be
effective and the burden of demonstrating ineffectiveness rests on appellant.”
Commonwealth v. Ousley, 21 A.3d 1238, 1244 (Pa.Super. 2011) (citation
omitted), appeal denied, 30 A.3d 487 (Pa. 2011). Additionally, we note that
counsel cannot be found ineffective for failing to raise a claim that is devoid
of merit. See Commonwealth v. Ligons, 971 A.2d 1125, 1146 (Pa. 2009).
Upon review, we find that appellant’s ineffectiveness claim fails because
he failed to satisfy the first prong of the Pierce test; namely, that the
underlying legal claim was of arguable merit. See Simpson, 66 A.3d at 260.
It is well settled that 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. Orlando, 156 A.3d 1274, 1281 (Pa.Super. 2017).
This court has explained that in order to ensure a voluntary, knowing, and
intelligent plea, the trial court, at a minimum, must ask the following questions
during the guilty plea colloquy:
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1) Does the defendant understand the nature of
the charges to which he or she is pleading guilty
or nolo contendere?
2) Is there a factual basis for the plea?
3) Does the defendant understand that he or she
has the right to a trial by jury?
4) Does the defendant understand that he or she
is presumed innocent until found guilty?
5) Is the defendant aware of the permissible
ranges of sentences and/or fines for the
offenses charged?
6) Is the defendant aware that the judge is not
bound by the terms of any plea agreement
tendered unless the judge accepts such
agreement?
Commonwealth v. Zeigler, 112 A.3d 656, 660 (Pa.Super. 2015) (citation
omitted). “A defendant is bound by the statements which he makes during
his plea colloquy. As such, a defendant may not assert grounds for
withdrawing the plea that contradict statements made when he entered the
plea.” Orlando, 156 A.3d at 1281 (citations and internal quotation marks
omitted).
Instantly, appellant’s claim that he was induced to plead guilty because
of plea counsel’s purported ineffectiveness is belied by the record. On
September 7, 2017, the trial court conducted an extensive guilty plea
colloquy, wherein appellant indicated that he understood his right to a jury
trial and the fact that he is presumed innocent until found guilty. (Notes of
testimony, 9/7/17 at 4-8.) Appellant also indicated that he could read and
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write English proficiently, was not under the influence of drugs or alcohol, and
was not undergoing treatment for mental illness. (Id. at 10-11.) Appellant
was also provided a factual basis for his guilty plea and was informed of the
elements of the offenses to which he was pleading guilty, as well as the
permissible ranges of sentences for each charge. (Id. at 13-25.) Appellant
acknowledged that he understood the nature of the charges to which he was
pleading guilty. (Id.) Appellant further indicated that was entering a guilty
plea of his own free will and understood that the trial court was not bound by
the terms of the plea agreement unless it decided to accept such agreement.
(Id. at 11-2, 27.) Additionally, appellant testified that he discussed his case
with plea counsel, that no one had threatened, forced, or induced him to plead
guilty, and that he was satisfied with plea counsel’s representation. (Id. at
12-13.) Based on the foregoing, we conclude that appellant’s claim that plea
counsel’s advice induced him to enter an unknowing and involuntary plea is
devoid of arguable merit, and his ineffectiveness claim must fail. See Ligons,
971 A.2d at 1146.
Furthermore, we agree with the PCRA court’s rationale that, contrary to
appellant’s contention, plea counsel had no reasonable strategic basis to make
a counter-offer to the Commonwealth. See Simpson, 66 A.3d at 260. As
the PCRA explained in its opinion:
Testimony presented at the PCRA hearing was
uncontradicted that no such alternative plea offer was
made by the Commonwealth but only the offer to the
five (5) conspiracy to commit burglary [counts] and
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five (5) theft counts were offered. [The Assistant
District Attorney (“ADA”)] stated in his testimony that
the only plea offer made to [plea counsel] was to
conspiracy. Specifically, [the ADA] wanted
[a]ppellant to plea to conspiracy due to the pending
charges against his co-defendant. [Plea counsel] also
affirmed this was the only offer during his testimony.
Additionally, [plea counsel] noted the Commonwealth
would not have offered anything else in this case.
Furthermore, [plea counsel] acknowledged that he
fully advised [a]ppellant of the plea, along with the
maximums and sentencing guidelines. No evidence
was presented at the hearing that any other offers
were provided.
....
[Plea c]ounsel cannot be found to be ineffective for
failure to inform [a]ppellant of a plea that was never
offered or presented to him. Furthermore, [plea
c]ounsel cannot be held ineffective for failing to
negotiate offers further when the Commonwealth
made clear the plea was a “take it or leave it.”
PCRA court opinion, 5/24/19 at 5-6 (extraneous capitalization omitted).
This court has long recognized that “[t]he law does not require that
[appellant] 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[,]” as was the case here. Commonwealth
v. Anderson, 995 A.2d 1184, 1192 (Pa.Super. 2010) (citation omitted),
appeal denied, 9 A.3d 626 (Pa. 2010). Accordingly, we affirm the PCRA
court’s March 29, 2019 order dismissing appellant’s PCRA petition.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/3/2020
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