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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DARIUS FOXE,
Appellant No. 2670 EDA 2013
Appeal from the PCRA Order Entered August 9, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0001216-2010
BEFORE: BENDER, P.J.E., DONOHUE, J., and STRASSBURGER, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED DECEMBER 31, 2014
Appellant, Darius Foxe, appeals pro se from the post-conviction court’s
August 9, 2013 order denying his petition for relief filed pursuant to the Post
Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.
On July 14, 2011, Appellant entered a negotiated guilty plea to
attempted murder and carrying a firearm without a license. His convictions
stemmed from his shooting a victim three times, which caused the victim to
be paralyzed below the waist. On the same day he entered his plea, the
court imposed the agreed upon sentence of eight to eighteen years’
incarceration, followed by two years’ probation. Appellant filed a timely
notice of appeal, but later withdrew that appeal on September 28, 2011.
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
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On May 22, 2012, Appellant filed a timely, pro se PCRA petition. He
subsequently filed a pro se amended petition on August 10, 2012. PCRA
counsel was appointed, but on May 31, 2013, counsel filed a petition to
withdraw and “no-merit” letter pursuant to Commonwealth v. Turner, 544
A.2d 927 (Pa. 1998), and Commonwealth v. Finley, 550 A.2d 213 (Pa.
Super. 1988). On July 5, 2013, the PCRA court issued a Pa.R.Crim.P. 907
notice of its intent to dismiss Appellant’s petition. Appellant did not file a
response to counsel’s petition to withdraw or the court’s Rule 907 notice. On
August 9, 2013, the PCRA court issued an order dismissing Appellant’s
petition and granting counsel’s petition to withdraw. Appellant filed a timely
notice of appeal. The PCRA court did not direct Appellant to file a Pa.R.A.P
1925(b) statement, but the court did issue an opinion pursuant to Rule
1925(a).
Appellant’s pro se brief to this Court does not comport with the
Pennsylvania Rules of Appellate Procedure. Namely, he does not delineate
his brief into any of the following sections: Statement of the Questions
Involved (Pa.R.A.P. 2116), Statement of the Case (Pa.R.A.P. 2117),
Summary of the Argument (Pa.R.A.P. 2118), or Argument (Pa.R.A.P. 2119).
Nevertheless, from our review of his brief as a whole, it appears that
Appellant seeks to assert the following issues:
(I) PCRA counsel was ineffective for seeking to withdraw where
Appellant raised meritorious claims.
(II) Appellant’s plea was unlawfully induced by ineffective
assistance of counsel.
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(III) Appellant’s plea colloquy was defective.
Our standard of review regarding an order denying post-conviction
relief under the PCRA is whether the determination of the court is supported
by the evidence of record and is free of legal error. Commonwealth v.
Ragan, 923 A.2d 1169, 1170 (Pa. 2007). 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. Touw, 781 A.2d 1250, 1252 (Pa. Super. 2001). The
PCRA court’s findings will not be disturbed unless there is no support for the
findings in the certified record. Commonwealth v. Carr, 768 A.2d 1164,
1166 (Pa. Super. 2001).
Initially, Appellant contends that his PCRA counsel was ineffective for
seeking to withdraw where Appellant presented meritorious issues in his pro
se petition. We are constrained to conclude that Appellant has waived this
claim by not raising it in response to the court’s Rule 907 notice or counsel’s
petition to withdraw. See Commonwealth v. Ford, 44 A.3d 1190, 1201
(Pa. Super. 2012) (holding that “absent recognition of a constitutional right
to effective collateral review counsel, claims of PCRA counsel ineffectiveness
cannot be raised for the first time after a notice of appeal has been taken
from the underlying PCRA matter”); see also Commonwealth v. Henkel,
90 A.3d 16, 30 (Pa. Super. 2014) (en banc) (finding waived the appellant’s
claims of PCRA counsel’s ineffectiveness, which were raised for the first time
in his Rule 1925(b) statement filed after his notice of appeal).
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Nevertheless, for the reasons stated infra, we conclude that each of
Appellant’s issues is waived and/or meritless; consequently, we would not
deem PCRA counsel ineffective for seeking to withdraw. First, Appellant
argues that his plea counsel was ineffective in several regards.
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 proceedings would have been
different.
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.
[T]he law does not require that [the defendant] 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. Moreover, with regard to the
prejudice prong, where an appellant has entered a guilty plea,
the appellant must demonstrate it is reasonably probable that,
but for counsel's errors, he would not have pleaded guilty and
would have gone to trial.
Commonwealth v. Timchak, 69 A.3d 765, 769-770 (Pa. Super. 2013)
(internal citations and quotation marks omitted).
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Here, Appellant claims that counsel’s ineffectiveness caused him to
enter an involuntary and unknowing plea because (1) counsel advised him to
plead guilty even though there was an inadequate factual basis to support
the charges; (2) counsel failed to investigate a potential defense witness,
Alexis Bowman, whose testimony would have contradicted the victim’s
testimony and led to Appellant’s acquittal; and (3) “counsels [sic] advice to
take an open plea interfered with [Appellant’s] rights to a direct appeal.”
Appellant’s Brief at 5.
Appellant’s claim that there was an inadequate factual basis to support
the offenses to which he pled guilty is waived, as it was not raised in his pro
se PCRA petition or amendment thereto. See Pa.R.Crim.P. 902(B) (“Each
ground relied upon in support of the relief requested shall be stated in the
[PCRA] petition. Failure to state such a ground in the petition shall preclude
the defendant from raising that ground in any proceeding for post-conviction
collateral relief.”); see also Commonwealth v. Rainey, 928 A.2d 215, 226
(Pa. 2007) (noting that issues not raised in a PCRA petition are waived and
cannot be considered for the first time on appeal). Nevertheless, even had
Appellant preserved this claim, we would conclude that it is meritless. At
the guilty plea proceeding, the Commonwealth provided the following factual
summary underlying the charges against Appellant:
[The Commonwealth]: Your Honor, on November the 1st, 2009,
the complainant, Tyreek Lyles … was in Abbotsford Projects in
the 3200 block of McMichael Street. At the time there were
several people outside including [Appellant]. [Appellant]
approached Mr. Lyles and said, [“]Are you okay?[”] The
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complainant said, [“]Yes. I’m okay. You?[”] The complainant
found the conversation to be strange.
The next thing you know[,] [Appellant] was pointing a gun
which was concealed inside of the sleeve of the hoody that he
was wearing. [Appellant] then fired that gun … four times at the
complaining witness. The first shot hit the complaining witness
in the chest. The second shot in the hip area, right hip. And the
third shot struck him in the buttock. The fourth projectile was
found on the scene.
The complainant was immediately rushed to Albert Einstein
Medical Center where his life was saved. However, after
numerous procedures and surgeries, he was left paralyzed from
the waist down.
…
[Appellant] fled the scene [of the shooting] to 193 Luray
Street. A cab driver will testify that he picked up a black male
wearing a black hoody at 3218 McMichael Street. The black
male came out of a bush before entering the cab and the person
that was in the cab slumped down. That person was ultimately
dropped off at 193 Luray Street.
Police executed a search warrant there and found nothing.
However, during this time anonymous tips were being compiled
by detectives and [Appellant] was developed as a suspect. A
photo spread was shown to Mr. Lyles in the hospital,
approximately[] eight days after his shooting and he identified
[Appellant], Mr. Foxe, as being the person that shot him.
N.T. Plea Hearing, 7/14/11, at 25-26.
Appellant claims these facts were insufficient to prove him guilty of
robbery, as defined in 18 Pa.C.S. § 3701(a)(1)(i). However, Appellant did
not plead guilty to robbery; he pled guilty to attempted murder and carrying
a firearm without a license. Appellant presents no argument that the above-
stated facts were insufficient to support his convictions for either of these
two offenses. Consequently, he has failed to prove that counsel was
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ineffective for advising him to plead guilty to attempted murder and carrying
a firearm without a license.
Appellant has also failed to demonstrate that counsel acted
ineffectively by not investigating Alexis Bowman, and that counsel’s conduct
resulted in his guilty plea being unknowing and/or involuntary. Appellant did
not state in his petition, and he does not explain on appeal, what testimony
Ms. Bowman would have offered at trial, or how it would have resulted in his
acquittal. Moreover, Appellant asserts that he told plea counsel about Ms.
Bowman, thus evincing that he knew about this witness (and, presumably,
the details of her possible testimony) prior to entering his guilty plea. See
Appellant’s Brief at 3. Nevertheless, Appellant entered his plea without
expressing any concern over counsel’s purported failure to interview Ms.
Bowman. Consequently, Appellant has not demonstrated that counsel’s
alleged failure in this regard impacted the validity of his plea.
Appellant additionally avers that plea counsel acted ineffectively by
impeding his right to file a direct appeal. Again, this issue was not raised in
either of Appellant’s pro se petitions and, therefore, it is waived.
Pa.R.Crim.P. 902(B); Rainey, 928 A.2d at 226. In any event, we would
conclude it is meritless. Appellant provides only the following, verbatim
argument in support of this claim:
[Appellant] avers that trial counsels [sic] advice to take an open
plea interfered with his rights to a direct appeal. At the time of
appellants/petitioner knows at the time he had recognized the
errors and realized he could still have appealed.
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Appellant’s Brief at 5. Appellant’s confusing argument is insufficient to
convince us that plea counsel somehow impeded his right to file a direct
appeal.
Appellant next argues that the guilty plea colloquy was inadequate
because, “to the best of his recollection[,]” he was not “asked about the
factual basis for his plea or told that he was presumed innocent.”
Appellant’s Brief at 4. Appellant’s claim is waived for two reasons. First, he
did not assert this argument in either of his pro se petitions. Pa.R.Crim.P.
902(B); Rainey, 928 A.2d at 226. Moreover, Appellant does not explain
why this claim could not have been raised on direct appeal. Accordingly, it is
waived on this basis, as well. See 42 Pa.C.S. § 9543(a)(3) (directing that to
be eligible for relief, a PCRA petitioner must prove that his claim has not
been previously litigated or waived); 42 Pa.C.S. 9544(b) (stating “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 post[-]conviction
proceeding”).
However, even if preserved, we would conclude that Appellant’s
challenge to the plea colloquy is meritless. At the plea proceeding, the
Commonwealth stated the factual summary, quoted supra, after which the
court asked Appellant if that was “a fair account of what happened[.]” N.T.
Plea Hearing at 26. Appellant stated, “[y]es,” and also confirmed that those
were the facts to which he was pleading guilty.” Id. Consequently, the plea
colloquy was adequate in this regard.
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Likewise, the court also sufficiently informed Appellant that he would
be presumed innocent if he proceeded to trial. The court stated:
The Court: At trial, sir, you would be the defendant and as such
presumed innocent. Every defendant enjoys a presumption of
innocence and the presumption would attach to you and remain
throughout the trial and continue unless and until the
Commonwealth proved your guilt beyond a reasonable doubt.
Id. at 12. Appellant was asked if he understood this, and he replied,
“[y]es.” Id. Accordingly, Appellant’s claim that the plea was deficient is
meritless.
In sum, each of the issues presented by Appellant is either waived
and/or meritless. Accordingly, we ascertain no error in the PCRA court’s
decision to deny Appellant post-conviction relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/31/2014
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