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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
DAVID BELTON
Appellant No. 1147 WDA 2014
Appeal from the PCRA Order June 18, 2014
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0008378-2012
BEFORE: PANELLA, J., LAZARUS, J., and STRASSBURGER, J.*
MEMORANDUM BY PANELLA, J. FILED JUNE 15, 2015
Appellant, David Belton, appeals from the order that dismissed his
petition pursuant to the Post Conviction Relief Act (“PCRA”) without a
hearing. We affirm.
In the underlying criminal action, Belton was charged with one count
of simple assault arising from an incident outside a nightclub in which he
struck his ex-girlfriend with a closed fist. On November 28, 2012, he
appeared in court with privately retained counsel, intending to plead guilty
to the charge pursuant to a plea agreement with the Commonwealth.
However, the trial court observed that Belton had a significant prior record
score and had recently been released from prison on an unrelated assault
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
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charge. As a result, the trial court indicated that it was reluctant to agree to
be bound by the sentencing terms of the plea agreement.
Belton responded by expressing remorse for the incident and claiming
that he was attempting to reform. Of particular relevance to Belton’s
subsequent PCRA petition, the trial court responded to Belton’s request for
leniency by observing that there was nothing to think about, as the crime
had been caught on videotape. After consulting with his attorney, Belton
indicated that in the absence of the agreement on sentencing, he would
proceed to trial. His privately retained counsel immediately withdrew from
the case.
Nearly two months later, Belton returned to the trial court, this time
with appointed counsel. Appointed counsel stated that she had just been
assigned to Belton, but that she had spoken to Belton at the prison, and that
he wanted to plead guilty. Appointed counsel further indicated on the record
that she was not prepared to proceed to trial, as she had received no
discovery from the Commonwealth or Belton’s prior counsel. Furthermore,
appointed counsel informed the court that the probation department had no
objections to the negotiated plea agreement’s sentencing terms.
The trial court once again stated that it was not willing to be bound by
the terms of the negotiated agreement. In response, appointed counsel
indicated that Belton wished to proceed despite the absence of the
negotiated sentencing terms. The trial court advised Belton that it desired
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to review a pre-sentence report before sentencing him, as it might work in
Belton’s favor. However, appointed counsel stated that Belton did not want
to wait for the preparation of a pre-sentence report; he wanted to proceed
with sentencing immediately.
The trial court proceeded with the guilty plea colloquy and sentenced
Belton to a term of imprisonment of one to two years. No direct appeal was
filed. On November 12, 2013, Belton filed a timely pro se PCRA petition.
The PCRA court appointed counsel to Belton, who then filed an amended
PCRA petition.
Prior to filing the amended PCRA petition, counsel filed a request for
special discovery from the Commonwealth. At issue was the alleged
videotape of the crime. Despite the fact that the PCRA court denied the
request, the Commonwealth engaged in an investigation to locate the
videotape. After several inquiries by the Commonwealth, the assistant
district attorney indicated that the tape no longer existed, and that it was
unlikely to ever have been in the Commonwealth’s possession. In the
amended petition, Belton argued that appointed counsel had been ineffective
by failing to learn of the absence of the videotape before allowing Belton to
plead guilty. After notice of its intent to dismiss, the PCRA court dismissed
Belton’s amended petition on June 18, 2014. This timely appeal followed.
On appeal, Belton argues that the PCRA court erred in dismissing his
petition without a hearing. While split into two sub-arguments, this
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argument ultimately resolves into an allegation that appointed counsel was
not appropriately prepared to advise Belton on the guilty plea. Thus, the
argument raises an ineffective assistance of counsel claim.
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 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.C.S.A. § 9543(a)(2)(i)-(viii).
See Commonwealth v. Albrecht, 720 A.2d 693, 698 (Pa. 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.
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(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.
(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.C.S.A. § 9543(a)(2)(i)-(viii).
Belton argues that trial counsel was ineffective in advising him with
respect to the guilty plea. In addressing Belton’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.
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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). 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 (Pa.
2007). Thus, we may deny any ineffectiveness claim if “the evidence fails to
meet a single one of these prongs.” Id., at 321 (citation omitted).
“A criminal defendant has the right to effective counsel during a plea
process….” Commonwealth v. Hickman, 799 A. 2d 136, 141 (Pa. Super.
2002). “Claims challenging the effectiveness of plea counsel’s stewardship
during a guilty plea are cognizable under 42 [Pa.C.S.A.] § 9543(a)(2)(ii).”
Commonwealth v. Lee, 820 A.2d 1285, 1287 (Pa. Super. 2003) (citation
omitted). In Commonwealth v. Morrison, 878 A.2d 102 (Pa. Super.
2005), the panel explained that we review allegations of counsel’s
ineffectiveness in connection with a guilty plea as follows:
The standard for post-sentence withdrawal of guilty pleas
dovetails with the arguable merit/prejudice requirements for
relief based on a claim of ineffective assistance of plea counsel,
see generally Commonwealth v. Kimball, 555 Pa. 299, 312,
724 A.2d 326, 333 (1999), under which the defendant must
show that counsel’s deficient stewardship resulted in a manifest
injustice, for example, by facilitating entry of an unknowing,
involuntary, or unintelligent plea. See, e.g., [Commonwealth
v.] Allen, 557 Pa. [135,] 144, 732 A.2d [582,] 587 [(1999)]
(“Allegations of ineffectiveness in connection with the entry of a
guilty plea will serve as a basis for relief only if the
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ineffectiveness caused appellant to enter an involuntary or
unknowing plea.”)….
Id., at 105 (quoting Commonwealth v. Flanagan, 578 Pa. 587, 608-609,
854 A.2d 489, 502 (2004)) (brackets in original). “This standard is
equivalent to the ‘manifest injustice’ standard applicable to all post-sentence
motions to withdraw a guilty plea.” Id. (citation omitted). “To succeed in
showing prejudice, the defendant must show that it is reasonably probable
that, but for counsel’s errors, he would not have pleaded guilty and would
have gone to trial.” Commonwealth v. Hickman, 799 A. 2d 136, 141 (Pa.
Super. 2002).
“[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).
Here, the record indicates that Belton was aware that appointed
counsel did not have the opportunity to review the strength of the
Commonwealth’s case against him. See N.T., Guilty Plea, 1/22/13, at 5 (“I
know I certainly am not [ready to go forward today], considering I have
absolutely no discovery other than the affidavit in the file.”) Furthermore,
appointed counsel repeatedly indicated that Belton desired to resolve this
case and plead guilty immediately. See id., at 3; 6; 8. Appointed counsel
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also stated that Belton desired to waive the pre-sentence report, as “he just
wants to get it over with today, your Honor.” Id., at 8.
Belton never objected to these statements made by appointed counsel.
More importantly, Belton does not allege in his PCRA petition that appointed
counsel misrepresented his desires at the guilty plea, or that counsel even
advised him to accept the guilty plea. This Court has consistently recognized
that “[t]he decision whether to plead guilty or contest a criminal charge is
probably the most important single decision in any criminal case. This
decision must finally be left to the client’s wishes; counsel cannot plead a
man guilty, or not guilty, against his will.” Commonwealth v. Chazin, 873
A.2d 732, 735 (Pa. Super. 2005) (citation omitted). The transcript from the
guilty plea hearing establishes that Belton desired to plead guilty despite
knowing that appointed counsel had not yet received any discovery. As
Belton did not plead in his petition that appointed counsel misled him,
misrepresented his desires, or otherwise misspoke at the guilty plea hearing,
he cannot establish that appointed counsel was ineffective for acceding to
his evident desire to plead guilty. Thus, neither of Belton’s arguments on
appeal merit relief.
Order affirmed. Jurisdiction relinquished.
Judgment Entered.
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Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/15/2015
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