Com. v. Peterson, G., II

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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. :
:
GILBERT E. PETERSON, II, : No. 2080 MDA 2016
:
Appellant :
Appeal from the PCRA Order, November 29, 2016,
in the Court of Common Pleas of York County
Criminal Division at Nos. CP-67-CR-0005763-2014,
CP-67-CR-0008774-2013, CP-67-CR-0008776-2013
BEFORE: OLSON, J., MOULTON, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED SEPTEMBER 21, 2017
Gilbert E. Peterson, II, appeals from the order of November 29, 2016,
denying his PCRA1 petition. Appointed counsel, John M. Hamme, Esq., has
filed a petition to withdraw and accompanying Turner/Finley “no merit”
brief.2 After careful review, we grant counsel’s petition to withdraw and
affirm the order denying PCRA relief.
The record reflects that on July 6, 2015, appellant entered an open
guilty plea to one count each of simple assault, criminal mischief, and
1
Post-Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546.
2
Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).
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escape.3 Appellant completed a written guilty plea colloquy as well as an
on-the-record oral plea colloquy. (Notes of testimony, 7/6/15 at 2-6.) The
charges of simple assault and criminal mischief related to separate incidents
involving Terry Laughman. On September 1, 2013, appellant was at Sheetz
and saw his fiancée, Danielle Eckert, sitting on the curb with Mr. Laughman.
(Id. at 4.) An argument ensued and when appellant exited the parking lot,
he purposely struck the front tire of Mr. Laughman’s motorcycle, knocking it
to the ground. (Id.) On December 5, 2013, appellant got into a fistfight
with Mr. Laughman at Ms. Eckert’s residence, causing Mr. Laughman to
suffer cuts and bruising. (Id. at 3-4.) Regarding the escape charge, on
August 8, 2014, appellant was in police custody at York Hospital on
unrelated charges when he absconded. (Id. at 5.)
Appellant asked to be released on supervised bail because his mother
recently had a stroke. (Id. at 6-7.) The Commonwealth requested that
appellant be remanded to the custody of York County Prison until sentencing
because of his status as a repeat felony offender and his prior failure to
appear, resulting in the issuance of a bench warrant. (Id. at 7-8.) The trial
court accepted appellant’s guilty plea but denied his request for supervised
bail pending sentencing. (Id. at 9-10.) Subsequently, however, the trial
court granted a written motion for supervised bail. (Notes of testimony,
11/29/16 at 20.)
3
18 Pa.C.S.A. §§ 2701(a)(1), 3304(a)(5), and 5121(a), respectively.
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Sentencing was scheduled for August 21, 2015; however, appellant
failed to appear. Appellant was picked up on a bench warrant on
December 29, 2015, and appeared before the Honorable Maria Musti Cook
the following day, December 30, 2015. The pre-sentence investigation
(“PSI”) report was unable to be completed by the adult probation office
because appellant left the jurisdiction; however, appellant indicated that he
wanted to proceed to immediate sentencing. (Notes of testimony, 12/30/15
at 2-4, 7-8.) Judge Cook imposed sentences of 3 to 6 months’ incarceration
for simple assault, 6 to 12 months for criminal mischief, and 12 to 24
months for escape, run consecutively for an aggregate sentence of 21
months to 42 months’ incarceration. (Id. at 8-9.) Each of appellant’s
sentences fell within the standard range of the sentencing guidelines. (Id.
at 8.) Appellant was also ordered to pay restitution to Mr. Laughman in the
amount of $250 and to Geico Indemnity Company in the amount of
$2,849.68, for the damage to Mr. Laughman’s motorcycle. (Id. at 10.)
Appellant filed an untimely post-sentence motion to withdraw his plea
on January 12, 2016, which was denied on January 20, 2016. Subsequently,
appellant filed a timely pro se PCRA petition on February 29, 2016. Counsel
was appointed, and an evidentiary hearing was held on November 29, 2016,
at which both appellant and plea counsel, T. Korey Leslie, Esq., testified.
Immediately following the hearing, appellant’s petition was denied. This
timely appeal followed. Appellant has complied with Pa.R.A.P. 1925(b), and
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the PCRA court filed a Rule 1925(a) opinion. Attorney Hamme has filed a
petition to withdraw and “no-merit” brief in accordance with Turner/Finley
practice.
Initially, we note our standard of review:
Our standard of review of a PCRA court’s dismissal of
a PCRA petition is limited to examining whether the
PCRA court’s determination is supported by the
evidence of record and free of legal error.
Commonwealth v. Ceo, 812 A.2d 1263, 1265
(Pa.Super.2002) (citation omitted). Great deference
is granted to the findings of the PCRA court, and
these findings will not be disturbed unless they have
no support in the certified record. Commonwealth
v. Carr, 768 A.2d 1164, 1166 (Pa.Super.2001)
(citation omitted).
Commonwealth v. Wilson, 824 A.2d 331, 333 (Pa.Super. 2003)
(en banc), appeal denied, 839 A.2d 352 (Pa. 2003).
Before addressing the merits of appellant’s appeal, we must determine
whether Attorney Hamme has complied with the procedural dictates for
PCRA counsel seeking to withdraw under Turner/Finley and their progeny.
We have explained that:
Counsel petitioning to withdraw from PCRA
representation must proceed ... under
[Commonwealth v.] Turner, [518 Pa. 491, 544
A.2d 927 (1988)], and [Commonwealth v.] Finley,
[379 Pa.Super. 390, 550 A.2d 213 (1988)] and . . .
must review the case zealously. Turner/Finley
counsel must then submit a “no-merit” letter to the
trial court, or brief on appeal to this Court, detailing
the nature and extent of counsel’s diligent review of
the case, listing the issues which petitioner wants to
have reviewed, explaining why and how those issues
lack merit, and requesting permission to withdraw.
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Counsel must also send to the petitioner:
(1) a copy of the “no merit” letter/brief;
(2) a copy of counsel’s petition to
withdraw; and (3) a statement advising
petitioner of the right to proceed pro se
or by new counsel.
***
Where counsel submits a petition and
no—merit letter that . . . satisfy the
technical demands of Turner/Finley, the
court—trial court or this Court—must
then conduct its own review of the merits
of the case. If the court agrees with
counsel that the claims are without
merit, the court will permit counsel to
withdraw and deny relief.
Commonwealth v. Doty, 48 A.3d 451, 454
(Pa.Super. 2012) (internal citations omitted)
(quoting Commonwealth v. Wrecks, 931 A.2d
717, 721 (Pa.Super. 2007)).
Commonwealth v. Muzzy, 141 A.3d 509, 510-511 (Pa.Super. 2016)
(brackets in Muzzy).
Instantly, Attorney Hamme has filed an application to withdraw,
asserting that he has thoroughly reviewed the trial court record and has
concluded that there are no meritorious issues present and that the appeal is
wholly frivolous; he has attached a “no-merit” letter, setting forth each issue
appellant wishes to have reviewed, and why each is meritless; and he has
forwarded to appellant both a copy of the application to withdraw and
“no-merit” letter, and has advised appellant that he has the right to proceed
pro se, retain new counsel, or raise any additional points he deems worthy
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of this court’s consideration.4 Therefore, we determine that
Attorney Hamme has complied with the requirements of Turner/Finley, and
we will proceed to an independent review of the record to decide whether
the PCRA petition is, in fact, meritless.
Appellant alleged that Attorney Leslie was ineffective for failing to file a
pre-sentence motion to withdraw his guilty plea; or in the alternative, for
failing to file a timely post-sentence motion to withdraw the plea. Appellant
testified that he specifically requested Attorney Leslie to file a pre-sentence
motion to withdraw the guilty plea immediately after the plea hearing.
(Notes of testimony, 11/29/16 at 11, 14.) Appellant testified that the basis
for withdrawal was actual innocence. (Id. at 15.)
Appellant also testified that Attorney Leslie promised him a sentence of
time-served. (Id. at 7.) Appellant testified that the only reason he agreed
to plead guilty was to get a time-served sentence with immediate parole.
(Id. at 7-8.) After appellant received a sentence of 21 to 42 months, he
4
Attorney Hamme’s April 12, 2017 letter to appellant informed him,
inter alia, that “[Y]ou have the right to retain new counsel to represent you
in your appeal and all matters arising therefrom. Also, you have the right to
file a brief on your own raising any additional points you deem worth [sic] of
the Court’s attention.” (Turner/Finley brief, Appendix D.)
Attorney Hamme also advised appellant that, “If you desire to file a brief on
your behalf, I would recommend that it be done so [sic] as soon as
possible.” (Id.) We conclude that this language fairly and accurately
informed appellant of his immediate right to proceed in the appeal pro se or
through privately retained counsel. Cf. Muzzy, 141 A.3d at 511-512 (PCRA
counsel’s letter to the petitioner improperly conveyed that he could not
proceed pro se or with private counsel unless, and until, this court granted
counsel’s withdrawal request, which was incorrect).
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asked Attorney Leslie to file a post-sentence motion to withdraw the guilty
plea. (Id. at 8-9.)
To prevail on a claim alleging counsel’s
ineffectiveness under the PCRA, Appellant must
demonstrate (1) that the underlying claim is of
arguable merit; (2) that counsel’s course of conduct
was without a reasonable basis designed to
effectuate his client’s interest; and (3) that he was
prejudiced by counsel’s ineffectiveness, i.e. there is
a reasonable probability that but for the act or
omission in question the outcome of the proceeding
would have been different. Commonwealth v.
Kimball, 555 Pa. 299, 724 A.2d 326, 333 (1999);
Commonwealth v. Douglas, 537 Pa. 588, 645
A.2d 226, 230 (1994).
Commonwealth v. Bracey, 795 A.2d 935, 942 (Pa. 2001).
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. Allen, 833 A.2d 800, 802 (Pa.Super. 2003), appeal
denied, 860 A.2d 488 (Pa. 2004), quoting Commonwealth v. Hickman,
799 A.2d 136, 141 (Pa.Super. 2002) (internal citations omitted).
Preliminarily, we recognize that at “any time before
the imposition of sentence, the court may, in its
discretion, permit, upon motion of the defendant, or
direct sua sponte, the withdrawal of a plea of guilty
or nolo contendere and the substitution of a plea of
not guilty.” Pa.R.Crim.P 591(A). The Supreme
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Court of Pennsylvania recently clarified the standard
of review for considering a trial court’s decision
regarding a defendant’s pre-sentence motion to
withdraw a guilty plea:
[T]rial courts have discretion in
determining whether a withdrawal
request will be granted; such discretion
is to be administered liberally in favor of
the accused; and any demonstration by a
defendant of a fair-and-just reason will
suffice to support a grant, unless
withdrawal would work substantial
prejudice to the Commonwealth.
Commonwealth v. Carrasquillo, 631 Pa. 692, 115
A.3d 1284, 1285, 1291-92 (2015) (holding there is
no per se rule regarding pre-sentence request to
withdraw a plea, and bare assertion of innocence is
not a sufficient reason to require a court to grant
such request). We will disturb a trial court’s decision
on a request to withdraw a guilty plea only if we
conclude that the trial court abused its discretion.
Commonwealth v. Gordy, 73 A.3d 620, 624
(Pa.Super. 2013).
Commonwealth v. Blango, 150 A.3d 45, 47 (Pa.Super. 2016), appeal
denied, A.3d , 2017 WL 1374163 (Pa. 2017) (footnote omitted).
In contrast, after the court has imposed a sentence,
a defendant can withdraw his guilty plea “only where
necessary to correct a manifest injustice.”
Commonwealth v. Starr, 450 Pa. 485, 301 A.2d
592, 595 (1973). “[P]ost-sentence motions for
withdrawal are subject to higher scrutiny since
courts strive to discourage the entry of guilty pleas
as sentencing-testing devices.” Commonwealth v.
Kelly, 5 A.3d 370, 377 (Pa.Super. 2010), appeal
denied, 613 Pa. 643, 32 A.3d 1276 (2011).
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To be valid [under the “manifest injustice” standard],
a guilty plea must be knowingly, voluntarily and
intelligently entered. Commonwealth v. Pollard,
832 A.2d 517, 522 (Pa.Super. 2003). “[A] manifest
injustice occurs when a plea is not tendered
knowingly, intelligently, voluntarily, and
understandingly.” Commonwealth v. Gunter, 565
Pa. 79, 771 A.2d 767, 771 (2001).
Commonwealth v. Kpou, 153 A.3d 1020, 1023 (Pa.Super. 2016), quoting
Commonwealth v. Prendes, 97 A.3d 337, 351-354 (Pa.Super. 2014)
(parallel citations omitted).
Regarding appellant’s allegation that he asked Attorney Leslie to file a
pre-sentence motion to withdraw his plea, Attorney Leslie testified that it
was not a formal request. (Notes of testimony, 11/29/16 at 20-21, 23.)
Attorney Leslie testified that immediately after pleading guilty on July 6,
2015, he and appellant had a conversation outside of the courtroom:
He said he wanted to withdraw his plea. I don’t -- I
wouldn’t say that he asked. I think his specific
phrase was, F this, I want to withdraw my plea and
go to trial. And I told him that was stupid, and then
the sheriffs took him back into custody.
Id. at 23. Attorney Leslie testified that, “[appellant] was upset because the
Court did not release him on supervised bail that day.” (Id. at 25.)
Attorney Leslie also noted that, “after he got out on bail, he didn’t make that
request anymore.” (Id. at 23.) Attorney Leslie’s testimony dovetails with
Judge Cook’s recollection that appellant was extremely upset about being
denied supervised bail:
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At the conclusion of the entry of the guilty plea, we
addressed a number of situations regarding
[appellant’s] ability to leave the courtroom of his
own volition that day. Attorney Leslie asked the
Court to release [appellant] on supervised bail. The
Court denied that request, and the Court, actually,
very clearly remembers how upset [appellant] was
that he was not going to be able to walk out the
front door.
Id. at 32. Appellant’s disappointment that his initial, oral motion for
supervised bail pending sentencing was denied was not a “fair and just
reason” for the pre-sentence withdrawal of his guilty plea. Indeed, as
Attorney Leslie observed, after his subsequent written motion for supervised
bail was granted, appellant did not repeat his request to withdraw his plea.
Attorney Leslie was not ineffective for failing to file a pre-sentence motion to
withdraw the guilty plea.
We now turn to appellant’s allegation that he asked Attorney Leslie to
file a post-sentence motion to withdraw his guilty plea, and that
Attorney Leslie was ineffective for failing to do so in a timely manner.
Appellant has arguably satisfied the first two prongs of the ineffectiveness
test where Attorney Leslie did file the requested post-sentence motion to
withdraw appellant’s guilty plea but did so in an untimely fashion, and it was
denied on the basis of untimeliness. However, we agree with Judge Cook
that appellant cannot prove prejudice. As set forth above, to withdraw a
guilty plea after sentencing, a defendant must demonstrate a “manifest
injustice.” Kpou, 153 A.3d at 1023. Moreover, it is well settled that
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disappointment in the sentence actually imposed does not represent a
manifest injustice. Commonwealth v. Muhammad, 794 A.2d 378, 383
(Pa.Super. 2002), citing Commonwealth v. Munson, 615 A.2d 343, 350
(Pa.Super. 1992).
Appellant testified that Attorney Leslie promised him a time-served
sentence. (Notes of testimony, 11/29/16 at 7-8.) Appellant testified that he
pled guilty “to get out of jail.” (Id. at 9, 13.) Appellant’s version of events
was contradicted by Attorney Leslie, who denied ever promising appellant
any particular sentence. (Id. at 21-22.) Attorney Leslie testified that while
he thought they had a good argument for a time-served sentence, he never
promised appellant anything and did not coerce appellant into taking a plea.
(Id.) After appellant did not receive a time-served sentence, he asked
Attorney Leslie to withdraw the guilty plea on the basis of coercion, which
Attorney Leslie specifically refuted. (Id. at 24-25.) In fact, Attorney Leslie
testified that appellant wanted to proceed to sentencing on December 30,
2015, without a completed PSI report against attorney advice. (Id. at
24-25.) Judge Cook did not find appellant’s testimony that he was coerced
into taking the plea to be credible. (PCRA court opinion, 1/24/17 at 3-4.)
To the contrary, the record indicates that appellant was simply dissatisfied
with his sentence. (Id. at 3.)
Furthermore, at the time he entered his guilty plea, appellant
acknowledged his guilt of the three charges and that there was no
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agreement as to sentencing. (Notes of testimony, 7/6/15 at 2.)
Attorney Leslie explained to appellant that the Commonwealth was free to
ask for any sentence it deemed appropriate. (Id.) See Pollard, 832 A.2d
at 523 (“A person who elects to plead guilty is bound by the statements he
makes in open court while under oath and he may not later assert grounds
for withdrawing the plea which contradict the statements he made at his
plea colloquy.” (citation omitted)).
Additionally, to the extent appellant now asserts his actual innocence
of the charges, he does not demonstrate a manifest injustice necessary to
secure a post-sentence withdrawal of the guilty plea. See Kpou, 153 A.3d
at 1024 (“Indeed, this Court has held that post-sentence claims of innocence
do not demonstrate manifest injustice, see Commonwealth v. Myers, 434
Pa.Super. 221, 642 A.2d 1103, 1108 (1994) (holding ‘[a] defendant’s
post-sentence recantation of guilt does not rise to the level of prejudice on
the order of manifest injustice sufficient to require that he be permitted to
withdraw his plea of guilty.’)”). The PCRA court determined that appellant’s
plea was entered voluntarily, knowingly, and intelligently, and that appellant
failed to assert a valid basis to withdraw his guilty plea. (PCRA court
opinion, 1/24/17 at 3-4.) Therefore, since appellant’s post-sentence motion
to withdraw his guilty plea would not have been granted, even if it was
timely filed, appellant cannot show how he was actually prejudiced by plea
counsel’s alleged ineffectiveness. (Id. at 4.)
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Finally, we address appellant’s pro se response to Attorney Hamme’s
petition to withdraw as PCRA counsel and Turner/Finley no-merit letter,
filed April 24, 2017. Appellant makes various allegations of
Attorney Hamme’s ineffectiveness and also asks for new counsel and an
extension of time to file a brief. However, it is well settled that issues of
PCRA counsel’s effectiveness cannot be raised for the first time on appeal.
Commonwealth v. Henkel, 90 A.3d 16, 30 (Pa.Super. 2014) (en banc),
appeal denied, 101 A.3d 785 (Pa. 2014). Appellant complains that
Attorney Hamme did not file an amended petition on his behalf, instead
seeking to withdraw under Turner/Finley.
Counsel’s duty under [Pa.R.Crim.P.] 904(a) to assist
the petitioner on his first PCRA petition does not
prevent him from seeking the court’s permission to
withdraw pursuant to Turner/Finley where the
issues on appeal lack merit. It is well accepted that
a petitioner is not deprived of his right to counsel in
situations where the court allows counsel to
withdraw in this fashion.
Commonwealth v. Johnson, 803 A.2d 1291, 1294 (Pa.Super. 2002),
citing Commonwealth v. Peterson, 756 A.2d 687, 689 (Pa.Super. 2000).
See also Commonwealth v. Cherry, 155 A.3d 1080, 1083 (Pa.Super.
2017) (“When appointed, counsel’s duty is to either (1) amend the
petitioner’s pro se Petition and present the petitioner’s claims in acceptable
legal terms, or (2) certify that the claims lack merit by complying with the
mandates of Turner/Finley.” (footnote omitted)).
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Furthermore, while appellant is entitled to counsel on a first PCRA, it is
axiomatic that appellant is not entitled to counsel of his choice.
Commonwealth v. Jette, 23 A.3d 1032, 1041 (Pa. 2011) (“[A]n indigent
criminal defendant does not enjoy the unbridled right to be represented by
counsel of his own choosing.” (citations and footnote omitted)). Appellant is
not entitled to substitute counsel. In addition, appellant has not identified
any issues that could be addressed in a pro se brief, and no purpose would
be served by further delay.
Order affirmed. Petition to withdraw granted. Appellant’s request for
an extension of time to file a comprehensive pro se brief is denied.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/21/2017
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