J-S03021-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MICHAEL BABISH
Appellant No. 1509 EDA 2014
Appeal from the PCRA Order April 9, 2014
In the Court of Common Pleas of Monroe County
Criminal Division at No(s): CP-45-CR-0000574-2011
CP-45-CR-0001440-2011
BEFORE: FORD ELLIOTT, P.J.E., PANELLA, J., and OTT, J.
MEMORANDUM BY PANELLA, J. FILED APRIL 07, 2015
Appellant, Michael Babish, appeals from the order dismissing his
petition pursuant to the Post Conviction Relief Act (“PCRA”). In his petition,
Babish alleged that his appointed counsel rendered ineffective assistance in
preparation for his guilty plea, rendering the plea unknowing and
involuntary. After careful review, we affirm.
Babish was arrested after multiple firearms were found in or near his
vehicle at the scene of an accident. While hospitalized, Babish admitted to
committing a series of burglaries. The Commonwealth subsequently charged
Babish with an assortment of crimes associated with five separate
burglaries.
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On March 7, 2012, Babish pled guilty pursuant to a negotiated plea
agreement to one count of burglary and two counts of criminal trespass.
Shortly thereafter, Babish withdrew his guilty plea indicating that he was
having a conflict with his appointed counsel, the Monroe County Public
Defender’s Office. Babish’s motion to appoint conflict counsel, filed by the
public defender, was denied.
On July 5, 2012, Babish appeared for trial in this matter, represented
by the public defender. After a colloquy, Babish again pled guilty to one
count of burglary and two counts of criminal trespass. The trial court
subsequently imposed a sentence of imprisonment of 117 months to 240
months.
On July 15, 2013, Babish filed a pro se PCRA petition. The PCRA court
appointed counsel to represent Babish, and an amended petition was filed
approximately a month later. After a hearing on the petition, the PCRA court
dismissed Babish’s amended PCRA petition on April 9, 2014. This timely
appeal followed.
On appeal, Babish argues that the PCRA court erred in concluding that
the public defender had rendered effective assistance of counsel to Babish in
preparation for his guilty plea. Our standard of review of a PCRA court’s
denial of a petition for post-conviction relief is well-settled. We must
examine whether the record supports the PCRA court’s determination and
whether the PCRA court’s determination is free of legal error. See
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Commonwealth v. Hall, 867 A.2d 619, 628 (Pa. Super. 2005). The PCRA
court’s findings will not be disturbed unless there is no support for the
findings in the certified record. See Commonwealth v. Carr, 768 A.2d
1164, 1166 (Pa. Super. 2001). Our scope of review is limited by the
parameters of the PCRA. See Commonwealth v. Heilman, 867 A.2d 542,
544 (Pa. Super. 2005).
To be eligible for relief under the PCRA, a petitioner must plead and
prove by a preponderance of the evidence that his conviction or sentence
resulted from one of the errors listed in 42 PA.CONS.STAT.ANN. §
9543(a)(2)(i)-(viii). See Commonwealth v. Albrecht, 720 A.2d 693, 698
(1998). Section 9543(a)(2) requires, inter alia,
(2) That the conviction or sentence resulted from one or
more of the following:
(i) A violation of the Constitution of this Commonwealth
or the Constitution or laws of the United States which, in
the circumstances of the particular case, so undermined
the truth-determining process that no reliable
adjudication of guilt or innocence could have taken place.
(ii) Ineffective assistance of counsel which, in the
circumstances of the particular case, so undermined the
truth-determining process that no reliable adjudication of
guilt or innocence could have taken place.
(iii) A plea of guilty unlawfully induced where the
circumstances make it likely that the inducement caused
the petitioner to plead guilty and the petitioner is
innocent.
(iv) The improper obstruction by government officials of
the petitioner's right of appeal where a meritorious
appealable issue existed and was properly preserved in
the trial court.
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(v) Deleted.
(vi) The unavailability at the time of trial of exculpatory
evidence that has subsequently become available and
would have changed the outcome of the trial if it had
been introduced.
(vii) The imposition of a sentence greater than the lawful
maximum.
(viii) A proceeding in a tribunal without jurisdiction.
42 PA.CONS.STAT.ANN. § 9543(a)(2)(i)-(viii).
As noted, Babish argues that the public defender was ineffective in
advising him to accept the negotiated plea agreement. In addressing
Babish’s claim of counsel’s ineffectiveness, we turn to the following principles
of law:
In order for Appellant to prevail on a claim of ineffective
assistance of counsel, he must show, by a preponderance of the
evidence, ineffective assistance of counsel which, in the
circumstances of the particular case, so undermined the truth-
determining process that no reliable adjudication of guilt or
innocence could have taken place … Appellant must
demonstrate: (1) the underlying claim is of arguable merit; (2)
that counsel had no reasonable strategic basis for his or her
action or inaction; and (3) but for the errors and omissions of
counsel, there is a reasonable probability that the outcome of
the proceedings would have been different.
Commonwealth v. Johnson, 868 A.2d 1278, 1281 (Pa. Super. 2005).
Moreover, “[w]e presume counsel is effective and place upon Appellant the
burden of proving otherwise.” Commonwealth v. Springer, 961 A.2d
1262, 1267-1268 (Pa. Super. 2008) (citation omitted). This Court will grant
relief only if Appellant satisfies each of the three prongs necessary to prove
counsel ineffective. See Commonwealth v. Natividad, 938 A.2d 310, 322
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(Pa. 2007). Thus, we may deny any ineffectiveness claim if “the evidence
fails to meet a single one of these prongs.” Id., at 321.
A claim of ineffectiveness in the context of a guilty plea may provide
relief only if the alleged ineffectiveness caused an involuntary or unknowing
plea. See Commonwealth v. Mendoza, 730 A.2d 503, 505 (Pa. Super.
1999). “[A] defendant is bound by the statements which he makes during
his plea colloquy.” Commonwealth v. Barnes, 687 A.2d 1163, 1167 (Pa.
1997) (citations omitted). As a result, a defendant “may not assert grounds
for withdrawing the plea that contradict statements made when he pled
guilty.” Id.; Commonwealth v. Yeomans, 24 A.3d 1044 (Pa. Super.
2011). “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. Moser, 921 A.2d 526, 531 (Pa. Super. 2007) (citation
and internal quotation marks omitted).
Babish contends that he wished to challenge the voluntariness of his
admission and the legality of the search and seizure of the firearms from his
vehicle. This was the basis of his initial withdrawal of his guilty plea. Thus,
Babish argues, the public defender’s failure to file such motions prior to the
guilty plea constituted ineffective assistance of counsel.
However, at the July 5 guilty plea, the trial court specifically addressed
this issue during the oral colloquy.
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THE COURT: I note Mr. Babish that you had previously
entered a guilty plea in this matter and you withdrew your plea
in front of another judge, Judge Williamson, prior to sentencing;
is that correct?
MR. BABISH: Yes.
THE COURT: And it’s my understanding in speaking with the
attorneys that part of the problem you had was a
communication issue or an issue you were having with your
attorney at that time, Mr. Sayer, from the Public Defender’s
Office.
MR. BABISH: Correct.
THE COURT: So here we are again today. And the concern
from the Commonwealth’s perspective, and I think from my
perspective as well, is that you are now – that issue has been
resolved and you’re satisfied with the representation that you
have from Mr. Labar. I want to make sure of that.
MR. BABISH: Yes.
THE COURT: He’s answered every question that you’ve had?
MR. BABISH: Yes, he has.
THE COURT: He has taken the time to talk to you?
MR. BABISH: Yes, he has.
THE COURT: Are you satisfied with his representation of you
in this matter?
MR. BABISH: Yes, I am.
N.T., Guilty Plea Hearing, 7/5/12, at 8-9.
Thus, Babish admitted, on the record, that the problem he had with his
initial guilty plea had been addressed. Furthermore, Babish admitted that
plea counsel had answered every question and that he was satisfied with
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counsel’s actions. Accordingly, he cannot now contend that his sworn
testimony was false on this issue. We therefore agree with the PCRA court
that Babish cannot establish that a conflict with the public defender’s office
rendered his guilty plea unknowing and involuntary.
Order affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/7/2015
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Com. v. Babish, M.
Combined Opinion