J-S18018-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
CARLOS ALCIDES SANCHEZ,
Appellant No. 1150 EDA 2014
Appeal from the PCRA Order entered March 21, 2014,
in the Court of Common Pleas of Philadelphia County,
Criminal Division, at No(s): CP-51-CR-0010979-2010
BEFORE: BENDER, P.J.E., ALLEN, and MUNDY, JJ.
MEMORANDUM BY ALLEN, J.: FILED MARCH 23, 2015
Carlos Alcides Sanchez (“Appellant”) appeals pro se from the order
denying his petition for relief under the Post Conviction Relief Act (“PCRA”),
42 Pa.C.S.A. sections 9541-46. We affirm.
The PCRA court summarized the pertinent facts as follows:
On September 21, 2009, at 7:48 p.m., Jose Rivera[]
was shot in the area of 417 West Norris Street, which is in
the intersection of Cadwallader and Norris Streets. Prior to
this shooting, [Appellant] had been searching for Jose
Rivera, the decedent, to collect a debt. During his search,
[Appellant] observed Rivera in the area of Lawrence and
Norris Streets. [Appellant] exited his Ford pickup truck
and began to argue with Rivera about the debt. When
Rivera said: “I don’t owe you any money,” [Appellant]
pulled out a silver gun from his waistband and fired at
least three gunshots at Rivera. Although Rivera turned
and began to run away, [Appellant] continued firing his
gun until Rivera fell to the ground. After the gunshots
were fired, [Appellant] entered his pickup truck and a
second male, Javier Zayas, entered the passenger side of
the pickup truck. [Appellant] then drove away from the
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scene with Zayas. Zayas left [Appellant] after they were a
few blocks away from the scene.
When police arrived, they transported Rivera to Temple
Hospital, where he was pronounced dead at 8:25 p.m. Dr.
Blanchard, from the Office of the Medical Examiner,
conducted an autopsy of Rivera’s body. Rivera suffered
one gunshot wound to the lower back, one gunshot wound
to the groin, and one gunshot wound to the right thigh.
Dr. Blanchard concluded to a reasonable degree of medical
certainty that the cause of death was multiple gunshot
wounds. Dr. Blanchard further concluded to a reasonable
degree of medical certainty that the manner of death was
homicide.
When Officer Rahill responded to the crime scene, he
recovered three .40 caliber fired cartridge casings. He
later submitted these fired cartridge casings to the
Firearms Identification Unit for examination. Officer Stott
examined three .40 caliber fired cartridge casings from the
crime scene. After examining the fired cartridge casings,
Officer Stott determined to a reasonable degree of
scientific certainty that they were fired from the same
firearm. He further concluded that it was probable that
the fired cartridge casings were ejected from a semi-
automatic handgun.
Two eyewitnesses, Mike Seloski and George Adorno,
observed the argument and subsequent shooting while
they were on a basketball court in the area of Lawrence
and Norris Streets. They later provided written statements
to police and identified [Appellant] as the shooter after
viewing a photographic array. Seloski further informed
police that Zayas did not have a weapon and did not fire
any gunshots at the decedent. Zayas also provided a
statement to police, and he later testified at a preliminary
hearing about this shooting.
PCRA Court Opinion, 8/4/14, at 2-3. Police subsequently arrested Appellant.
On April 24, 2012, Appellant entered a negotiated guilty plea to third
degree murder and related charges. That same day, the trial court
sentenced him to a negotiated aggregate term of twenty to forty years of
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imprisonment. Appellant filed neither a post-sentence motion, nor a direct
appeal.
On August 28, 2012, Appellant filed a pro se PCRA petition, as well as
a pro se amended petition. The PCRA court appointed counsel, and on
November 24, 2013, PCRA counsel filed a “no-merit” letter and petition to
withdraw pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988),
and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
After reviewing PCRA counsel’s “no-merit” letter, and independently
determining that Appellant’s claims were meritless, the PCRA court issued
Pa.R.Crim.P. 907 notice of intent to dismiss the petition on February 20,
2014. Appellant filed a response on March 10, 2014. By order entered
March 21, 2014, the PCRA court dismissed Appellant’s PCRA petition and
permitted PCRA counsel to withdraw. This timely pro se appeal followed.
The PCRA court did not require Pa.R.A.P. 1925 compliance.
In his pro se brief, Appellant claims that the PCRA court erred as a
matter of law and/or abused its discretion in “denying or otherwise
dismissing without a hearing” his claims that prior counsel was ineffective for
failing to: 1) move to dismiss the charges filed against him based upon the
prejudicial delay in holding his preliminary hearing; 2) move for dismissal of
the charges based upon a violation of his Pa.R.Crim.P. 600 right to a speedy
trial; and 3) file a requested post-sentence motion for reconsideration
and/or withdraw of his guilty plea. See Appellant’s Brief at 4.
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In reviewing the propriety of an order granting or denying PCRA relief,
an appellate court is limited to ascertaining whether the record supports the
determination of the PCRA court and whether the ruling is free of legal error.
Commonwealth v. Johnson, 966 A.2d 523, 532 (Pa. 2009). We pay great
deference to the findings of the PCRA court, “but its legal determinations are
subject to our plenary review.” Id. Moreover, a PCRA court may decline to
hold a hearing on the petition if the PCRA court determines that petitioner’s
claim is patently frivolous and is without a trace of support in either the
record or from other evidence. Commonwealth v. Jordan, 772 A.2d 1011,
1014 (Pa. Super. 2001). Finally, to be entitled to relief under the PCRA, the
petitioner must plead and prove by a preponderance of the evidence that the
conviction or sentence arose from one or more of the errors enumerated in
section 9543(a)(2) of the PCRA. One such error involves the ineffectiveness
of counsel.
To obtain relief under the PCRA premised on a claim that counsel was
ineffective, a petitioner must establish 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.
Johnson, 966 A.2d at 532. “Generally, counsel’s performance is presumed
to be constitutionally adequate, and counsel will only be deemed ineffective
upon a sufficient showing by the petitioner.” Id. This requires the petitioner
to demonstrate that: (1) the underlying claim is of arguable merit; (2)
counsel had no reasonable strategic basis for his or her action or inaction;
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and (3) petitioner was prejudiced by counsel's act or omission. Id. at 533.
A finding of "prejudice" requires the petitioner to show "that there is a
reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different." Id.
Counsel will not be deemed ineffective if any reasonable basis exists
for counsel's actions. Commonwealth v. Douglas, 645 A.2d 226, 231 (Pa.
1994). Even if counsel had no reasonable basis for the course of conduct
pursued, however, an appellant is not entitled to relief if he fails to
demonstrate the requisite prejudice which is necessary under Pennsylvania's
ineffectiveness standard. Douglas, 645 A.2d at 232. In assessing a claim
of ineffectiveness, when it is clear that appellant has failed to meet the
prejudice prong, the court may dispose of the claim on that basis alone,
without a determination of whether the first two prongs have been met.
Commonwealth v. Travaglia, 661 A.2d 352, 357 (Pa. 1995). Counsel
cannot be deemed ineffective for failing to pursue a meritless claim.
Commonwealth v. Loner, 836 A.2d 125, 132 (Pa. Super. 2003).
As correctly recognized by the PCRA court in this case, Appellant’s first
two ineffectiveness claims would have arguable merit only if trial counsel
was ineffective in relation to Appellant’s entry of a guilty plea. See PCRA
Court Opinion, 8/4/14, at 8. Thus, we first address the validity of
Appellant’s guilty plea.
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“[A] defendant who attempts to withdraw a guilty plea after
sentencing must demonstrate prejudice on the order of manifest injustice
before withdrawal is justified.” Commonwealth v. Pantalion, 957 A.2d
1267, 1271 (Pa. Super. 2008) (citation omitted). A showing of manifest
injustice may be established if the plea was entered into involuntarily,
unknowingly, or unintelligently. Id. As this Court has summarized:
Pennsylvania has constructed its guilty plea procedures
in a way designed to guarantee assurance that guilty
pleas are voluntarily and understandingly tendered. The
entry of a guilty plea is a protracted and comprehensive
proceeding wherein the court is obliged to make a specific
determination after extensive colloquy on the record that
a plea is voluntarily and understandingly tendered.
Commonwealth v. Fluharty, 632 A.2d 312, 314 (Pa. Super. 1993)
(citation omitted).
Rule 590 of the Pennsylvania Rules of Criminal Procedure requires that
a guilty plea be offered in open court, and provides a procedure to
determine whether the plea is voluntarily, knowingly, and intelligently
entered. As noted in the Comment to Rule 590, at a minimum, the trial
court should ask questions to elicit the following information:
(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 trial by jury?
(4) Does the defendant understand that he or
she is presumed innocent until found
guilty?
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(5) Is the defendant aware of the permissible
range 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?
Pa.R.Crim.P. 590, Comment.1
This Court has further summarized:
In order for a guilty plea to be constitutionally valid, the
guilty plea colloquy must affirmatively show that the
defendant understood what the plea connoted and its
consequences. This determination is to be made by
examining the totality of the circumstances surrounding
the entry of the plea. Thus, even though there is an
omission or defect in the guilty plea colloquy, a plea of
guilty will not be deemed invalid if the circumstances
surrounding the entry of the plea disclose that the
defendant had a full understanding of the nature and
consequences of his plea and that he knowingly and
voluntarily decided to enter the plea.
Commonwealth v. Yeomans, 24 A.3d 1044, 1047 (Pa. Super. 2011)
(quoting Fluharty, 632 A.2d at 314-15)).
Finally, when addressing an appellate challenge to the validity of a
guilty plea:
Our law presumes that a defendant who enters a guilty plea was
aware of what he was doing. He bears the burden of proving
otherwise.
____________________________________________
1
The Comment to Rule 590 includes a seventh proposed question that is
only applicable when a defendant pleads guilty to murder generally.
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* * *
The longstanding rule of Pennsylvania law is that a
defendant may not challenge his guilty plea by asserting
that he lied while under oath, even if he avers that counsel
induced the lies. A person who elects to plead guilty is
bound by the statements he makes in open court while
under oath and may not later assert grounds for
withdrawing the plea which contradict the statements he
made at his plea colloquy.
* * *
[A] defendant who elects to plead guilty has a duty to
answer questions truthfully. We [cannot] permit a
defendant to postpone the final disposition of his case by
lying to the court and later alleging that his lies were
induced by the prompting of counsel.
Commonwealth v. Yeomans, 24 A.3d at 1047 (quoting Commonwealth
v. Pollard, 832 A.2d 517, 523-24 (Pa. Super. 2003)).
In concluding Appellant entered a valid guilty plea, the PCRA court
explained:
The record clearly demonstrates that [Appellant’s]
guilty plea was entered knowingly, voluntarily and
intelligently. Before accepting [Appellant’s] guilty plea,
this court conducted an extensive colloquy to ensure that
[Appellant] had “actual knowledge of the implications and
rights associated with a guilty plea.” [Commonwealth v.
Allen, 732 A.2d 582, 588 (Pa. 1999)]. [Appellant]
confirmed that he understood the nature of the charges
filed against him after this court carefully explained the
elements of third-degree murder [and related charges].
The record also shows that there was a factual basis for his
guilty plea. After this court informed [Appellant] of the
elements of the aforementioned offenses, the assistant
district attorney gave a summary of the facts that were the
basis of this guilty plea. [Appellant] agreed that he was
pleading guilty to those facts.
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During this colloquy, [Appellant] was informed of his
rights and the consequences of entering a guilty plea to
the charges against him. In response to a series of
inquiries, [Appellant] responded that he understood those
rights and consequences. Specifically, [Appellant]
confirmed that he understood his right to a jury trial and
the consequences of electing to plead guilty. He also
stated that he understood that he is presumed innocent
until proven guilty beyond a reasonable doubt in a jury
trial. [Appellant] further indicated his awareness of the
permissible range of sentences and fines for the charges
filed against him. He was further aware that his
negotiated sentence was less than the statutory maximum
sentence that could have been imposed. Throughout this
colloquy, this court informed [Appellant] that it was not
bound by the terms of the plea agreement unless it was
accepted after a finding that it was entered into
voluntarily, knowingly, and intelligently. [Appellant]
completed and signed a Written Guilty Plea Colloquy form
and indicated that he understood each page of the form.
[Appellant] also stated that he had consulted with defense
counsel before entering his guilty plea, that he was
satisfied with his attorney’s services, and that no threats
or promises had been made to him. There was no point
during the colloquy where [Appellant] informed this court
that his guilty plea was unlawfully induced by counsel.
***
Based on the totality of the circumstances, this court
accepted [Appellant’s] guilty plea after being satisfied that
it was entered voluntarily, knowingly, and intelligently.
PCRA Court Opinion, 8/4/14, at 6-8 (footnote and citations omitted).
Our review of Appellant’s colloquy with the trial court prior to the entry
of his guilty plea amply supports the PCRA court’s conclusion that Appellant
knowingly, voluntarily, and intelligently entered his plea. See N.T., 4/24/12,
at 7-43. Thus, because any post-sentence motion filed by trial counsel to
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withdraw the guilty plea would have been meritless, Appellant’s claim of
ineffectiveness fails. Loner, supra.
Given its determination regarding Appellant’s plea, the PCRA court
further determined that Appellant’s claims of ineffective assistance by prior
counsel prior to the entry of his guilty plea was devoid of merit. The PCRA
court explained:
First, [Appellant] cannot prevail on the claim that
preliminary hearing counsel was ineffective for failing to
file a motion to dismiss his charges due to an alleged
violation of his right to a preliminary hearing within a
specific timeframe. Neither can [Appellant] be afforded
relief on the basis that trial counsel was ineffective for
failing to file a motion to dismiss his charges due to an
alleged violation of his right to a speedy trial. The alleged
inaction of counsel to file these pre-trial motions did not
prejudice the outcome of this case. The record clearly
shows that [Appellant] had full knowledge of the effect
that his guilty plea would have on his pre-trial rights.
Through the court’s oral and written colloquy, [Appellant]
was informed that his pre-trial rights would be waived
upon entry of his guilty plea. Thus, [Appellant] fully
understood the consequences of his guilty plea. Because
[Appellant’s] guilty plea was an informed choice, counsel’s
alleged ineffectiveness in failing to file these pre-trial
motions could not have adversely affected the outcome of
the proceedings before this court.
PCRA Court Opinion, 8/4/14, at 8-9 (footnote and citations omitted).
Once again, our review of the record supports the PCRA court’s
conclusions. See N.T., 4/24/12, at 21 (Appellant acknowledges that his
entry of a guilty plea would render him unable to pursue pre-trial motions);
see also Commonwealth v. Murray, 836 A.2d 956, 962-63 (Pa. Super.
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2003) (providing that the entry of a guilty plea constitutes a waiver of all
defects and defenses except lack of jurisdiction, invalidity of the plea, and
illegality of the sentence).
In his remaining claim, Appellant asserts that trial counsel was
ineffective for failing to file a post-sentence motion for sentence
reconsideration. According to Appellant, “while [he] may have had no
particular right to receive a reduced sentence . . . it cannot be reasonably
disputed that he did have the right to have such a request considered.”
Appellant’s Brief at 19-20. Appellant further asserts that trial counsel’s
failure to file a post-sentence motion for sentence reconsideration
“prevented [him] from seeking appellate review of the discretionary aspects
of his sentence[.]” Id. at 20.
This claim of ineffectiveness is baseless. The PCRA court cogently
observed:
[Appellant] is not entitled to post-conviction relief on
the claim that trial counsel was ineffective for failing to file
a post-sentence motion for reconsideration of his sentence.
There is no relief available because [Appellant] is not
entitled to a different sentence than the one he negotiated.
In Commonwealth v. Dalberto, 648 A.2d 16, 21 (Pa.
Super 1994), [the Superior Court] opined that “in a
‘negotiated’ plea agreement, where a sentence of specific
duration has been made part of the plea bargain, it would
clearly make a sham of the negotiated plea process for
courts to allow defendants to later challenge their
sentence.” Here, [Appellant’s] sentence was lawful and as
it was within statutory limits. Consequently, this
ineffectiveness claim does not warrant relief because it has
no merit.
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PCRA Court Opinion, 8/4/14, at 10-11 (footnote omitted). We agree.
In sum, our review of the record supports the PCRA court’s
determination that each ineffectiveness claim raised by Appellant lacks
merit. We therefore affirm its order denying post-conviction relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/23/2015
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Com. v. Sanchez, C.
Combined Opinion