J-S07038-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ROOSEVELT WARDEN
Appellant No. 1019 MDA 2014
Appeal from the PCRA Order June 2, 2014
In the Court of Common Pleas of Schuylkill County
Criminal Division at No(s): CP-54-CR-0001670-2012
BEFORE: BENDER, P.J.E., OLSON, J., and OTT, J.
MEMORANDUM BY OTT, J.: FILED APRIL 10, 2015
Roosevelt Warden appeals from the order entered June 2, 2014, in the
Schuylkill County Court of Common Pleas, dismissing his first petition filed
pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. § 9541 et seq.
Warden seeks relief from the judgment of sentence imposed September 25,
2013, following his guilty plea to one count of robbery. 1 On appeal, Warden
seeks to withdraw his negotiated guilty plea and proceed to trial. For the
reasons set forth below, we affirm.
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1
18 Pa.C.S. § 3701(a)(1).
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The facts underlying this appeal are as follows.2 On October 12, 2012,
at approximately 11:00 p.m., Warden approached the victim, who was
talking on a cell phone outside of a bar, pressed a knife to the back of the
his neck, and robbed him of his wallet and cell phone. An employee and a
patron of the bar witnessed the robbery. The employee recognized Warden
because he had been previously banned from the bar. Warden fled the
scene, and was later apprehended by police. The bar employee identified
Warden from a photo lineup.
Warden was subsequently charged with robbery (three counts),
unlawful restraint, recklessly endangering another person, simple assault,
theft, and receiving stolen property.3 On January 11, 2013, he filed a
pretrial motion seeking to suppress his photo lineup identification, as well as
a statement he made to police. Following a hearing, the trial court denied
the motion on May 20, 2013. On August 6, 2013, Warden signed a written
negotiated plea agreement in which he agreed to enter a guilty plea to one
count of robbery in exchange for a sentence of three to six years’
imprisonment, followed by four years’ probation. Additionally, the
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2
These facts were gleaned from the probable cause affidavit attached to
Warden’s criminal complaint. See Criminal Complaint, 10/15/2012, Affidavit
of Probable Cause, at 1-2.
3
18 Pa.C.S. §§ 3701(a)(1), 2902(a)(1), 2705, 2701(a)(3), 3921(a), and
3925(a), respectively.
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Commonwealth agreed to nolle pros the remaining charges. At a hearing on
September 25, 2013, the trial court accepted Warden’s guilty plea and
imposed the negotiated sentence. No direct appeal was filed.
On April 4, 2014, Warden filed a pro se PCRA petition, arguing, inter
alia, he was coerced into entering a guilty plea. Jeffrey M. Markosky, Esq.
was appointed on April 16, 2014, to assist Warden in the litigation of his
petition. However, less than one month later, on May 12, 2014, the trial
court provided Warden with notice, pursuant to Pa.R.Crim.P. 907, of its
intent to dismiss the petition without conducting an evidentiary hearing.
Markosky filed an objection to the court’s Rule 907 notice, asserting (1)
Warden was “coerced by his attorney” to enter a guilty plea when he
intended to assert his innocence, and (2) “the Tamaqua police officers were
applying pressure to Mr. Warden’s girlfriend and threatening to remove her
children from her custody” if he declined to accept the plea. Warden’s
Objection to Dismissal of Post-Conviction Relief Act Petition, 5/30/2014, at
¶¶ 1-2. Markosky also requested the court schedule an evidentiary hearing.
Nevertheless, on June 2, 2014, the PCRA court denied the petition without a
hearing, finding that Warden “ha[d] not listed any witnesses nor testimony
he wishe[d] to present which could in any way contradict the assertions he
made under oath during his guilty plea hearing on September 25, 2013.”
Order, 6/2/2014.
Although still represented by PCRA counsel, Warden filed a timely, pro
se notice of appeal, followed by a pro se concise statement of errors
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complained of on appeal pursuant to Pa.R.A.P. 1925(b),4 in which he
challenged, inter alia, the trial court’s denial of his PCRA petition without first
providing appointed counsel the opportunity to supplement the petition.
See Statement of Reasons for Appeal, 7/28/2014. On July 30, 2014, the
PCRA court issued an order stating that it would no longer consider any pro
se filings because Warden was represented by counsel.5 See Order,
7/30/2014.
Thereafter, on August 22, 2014, Warden filed another pro se motion in
the PCRA court in which he claimed (1) the PCRA court failed to file an
opinion, and (2) former counsel “abdicat[ed] any and all of his lawfully
mandated responsibilities[.]” Motion for the Immediate Correction of an
Inavertence, (sic) that Requires Provision of a Judicial Opinion[] Where
Former Counsel Caused Such Inadvertence of Legal Fact, 8/22/2014. On
September 2, 2014, the PCRA court issued an order noting that it was
without jurisdiction to act on the motion since Warden had filed an appeal to
this Court, but that, in any event, it had filed a Pa.R.A.P. 1925(a) opinion on
June 2, 2014. See Order, 9/2/2014. Warden subsequently filed a “Motion
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4
We note that the PCRA court did not order Warden to file the concise
statement.
5
The order was sent to both Warden and Markosky.
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for Withdrawal of Appointed Counsel,” which the PCRA court promptly
denied.
On October 14, 2014, after appointed counsel failed to file an appellate
brief, this Court remanded the appeal to the PCRA court “for a determination
as to whether counsel ha[d] abandoned [Warden] and to take further action
as required to protect [Warden’s] right to appeal.” Order, 10/14/2014.
Upon remand, the PCRA court conducted a hearing on October 29, 2014.
That same day, it issued an order finding (1) Markosky had prepared and
mailed briefs to all parties, but that the briefs never arrived, and (2)
Markosky had not abandoned Warden. See Order, 10/29/2014, at 1. The
PCRA court also noted Warden “agreed to [the] same but had believed that
Attorney Markosky had abandoned him when he did not receive a copy of
the Brief.” Id. at 2. Further, the PCRA court directed Markosky to re-mail
the briefs to the appropriate parties before October 31, 2014. Markosky
complied with the PCRA court’s directive, and the appeal is now before us for
disposition.
On appeal, Warden challenges the ineffectiveness of plea counsel in
coercing him to enter a guilty plea, and further claims he was “coerced into
accepting his negotiated guilty plea” because the arresting officers
threatened to remove his girlfriend’s children from her care if he did not
enter a plea. Warden’s Brief at 7.
When reviewing an order dismissing a PCRA petition, we must
determine whether the ruling of the PCRA court is supported by record
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evidence and is free of legal error. Commonwealth v. Burkett, 5 A.3d
1260, 1267 (Pa. Super. 2010). “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. Carter, 21 A.3d
680, 682 (Pa. Super. 2011) (citation omitted).
As a preliminary consideration, we note that in order to obtain relief
under the PCRA, a petitioner must plead and prove that his claim has not
been previously litigated or waived. See 42 Pa.C.S. § 9543(a)(3). Warden’s
contention that he was coerced into entering a guilty plea because of threats
made by police officers could have been raised on direct appeal. Therefore,
Warden’s decision to forego a direct appeal waives this claim for our review.6
See 42 Pa.C.S. § 9544(c) (“[A]n 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 postconviction proceeding.”).
Warden also contends, however, that plea counsel coerced him into
entering a guilty plea, which is cognizable under the PCRA, and has not been
previously litigated or waived. See 42 Pa.C.S. § 9543(a)(2)(ii).
Our review of an ineffectiveness claim is well-settled:
We begin our analysis of ineffectiveness claims with the
presumption that counsel is effective. To prevail on his
ineffectiveness claims, Appellant must plead and prove, by a
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6
We note that Warden does not claim that he requested plea counsel to file
a direct appeal, and counsel ignored his request.
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preponderance of the evidence, three elements: (1) the
underlying legal claim has arguable merit; (2) counsel had no
reasonable basis for his action or inaction; and (3) Appellant
suffered prejudice because of counsel’s action or inaction. With
regard to the second, i.e., the “reasonable basis” prong, we will
conclude that counsel’s chosen strategy lacked a reasonable
basis only if Appellant proves that “an alternative not chosen
offered a potential for success substantially greater than the
course actually pursued.” To establish the third, i.e., the
prejudice prong, Appellant must show that there is a reasonable
probability that the outcome of the proceedings would have been
different but for counsel’s action or inaction.
Commonwealth v. Spotz, 18 A.3d 244, 259-260 (Pa. 2011) (internal
citations omitted). A petitioner must demonstrate each prong of the
ineffectiveness test in order to obtain relief. Commonwealth v. Steele,
961 A.2d 786, 800 (Pa. 2008).
Here, Warden’s argument fails to address any of the ineffectiveness
prongs. See Warden’s Brief at 7-8. Moreover, he neglects to explain how
plea counsel “coerced” him into entering a guilty plea. “Claims of ineffective
assistance of counsel are not self-proving[,]”7 and our Supreme Court has
repeatedly refused to consider bald allegations of ineffectiveness.
Commonwealth v. Thomas, 744 A.2d 713, 716 (Pa. 2000) (declining to
find counsel ineffective “where appellant fail[ed] to allege with specificity
sufficient facts in support of his claim.”). Accordingly, Warden’s challenge to
plea counsel’s ineffectiveness is also waived.
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7
Commonwealth v. Spotz, 896 A.2d 1191, 1250 (Pa. 2006) (citation
omitted).
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Nevertheless, even if we were to consider this claim, we note that “[a]
defendant is bound by the statements made during the plea colloquy, and …
may not later offer reasons for withdrawing the plea that contradict
statements made when he pled.” Commonwealth v. Brown, 48 A.3d
1275, 1277 (Pa. Super. 2012) (citation omitted), appeal denied, 63 A.3d
773 (Pa. 2013). Although we recognize the oral plea colloquy in this case
was brief,8 prior to the guilty plea hearing, Warden completed an extensive
written plea agreement. See Memorandum of Plea Agreement, 8/6/2013,
and Written Guilty Plea, 8/6/2013. In the written agreement, Warden
acknowledged that it was his decision to plead guilty and he did so because
“I’m guilty of said crimes & want to move on with my life[.]” Written Guilty
Plea, 8/6/2013, at 4. Furthermore, he responded that he was satisfied with
“the representation and advice” of his attorney, that his plea was “given
freely and voluntarily without any force, threats, pressure or intimidation[,]”
and that no one had said anything “that would induce [him] or put pressure
on [him] to plead guilty[.]” Id. During the subsequent oral colloquy, the
trial court asked Warden “whether all of the answers to the questions that
[he had] provided in the [written] colloquy [were] true and accurate and
correct in every respect?” to which Warden answered, “Yes.” N.T.,
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8
The trial court consolidated the plea hearings for a number of defendants
who had negotiated plea agreements with the Commonwealth. See
generally N.T., 9/25/2013.
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9/25/2013, at 6. Moreover, he affirmatively stated that he wanted to “plead
guilty.” Id. at 7. Therefore, even if the ineffectiveness claim was not
waived, Warden would be entitled to no relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/10/2015
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