Com. v. Andrews, C.

J. S27006/15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
CHARLES ANDREWS, : No. 593 EDA 2013
:
Appellant :

Appeal from the PCRA Order, January 22, 2013,
in the Court of Common Pleas of Philadelphia County
Criminal Division at Nos. CP-51-CR-0002527-2010,
CP-51-CR-0007819-2009

BEFORE: FORD ELLIOTT, P.J.E., STABILE AND FITZGERALD,* JJ.

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED AUGUST 26, 2015

Charles Andrews appeals from the order of January 22, 2013,

dismissing his PCRA1 petition without a hearing. We affirm.

The history of this case was aptly summarized by the PCRA court as

follows:

On January 7, 2009, Police Officer Ryan
Waltman observed Defendant repeatedly banging on
the front door of a residence located at 3118 Gilham
Street, Philadelphia, PA. As Officer Waltman
approached the residence, Defendant picked up two
packages that were located between the storm door
and the front door. After he picked up the packages,
Defendant began to walk away from the residence.
Officer Waltman followed Defendant until he entered
the passenger side of a car. As the car started to

* Former Justice specially assigned to the Superior Court.
1
Post-Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546.
J. S27006/15

pull away, Officer Waltman drew his revolver and
ordered the driver to stop the car. In response, the
driver tried to stop the car, but Defendant told the
driver to continue driving and tried to push her leg
down on the accelerator. As the car bolted forward,
Officer Waltman had to jump in order to avoid being
hit by the car. Joseph Cataline, the owner of the
residence, did not know Defendant and did not give
him permission to open the storm door to the house,
bang on the front door, or remove any packages
located between the storm door and front door.

Attorney Barbara McDermott — now Judge
McDermott — represented Defendant at trial.
Following the denial of a motion to quash the
aggravated assault charge, Defendant pleaded guilty
to one count of aggravated assault and one count of
burglary. In addition to the written plea agreement
forms that were read and signed by Defendant,
Judge O'Grady conducted an oral colloquy where
Defendant stated under oath that: (1) he was
pleading guilty of his own free will, (2) he
understood that he was waiving most of his appellate
rights as a result of the plea, (3) he was satisfied
with the representation by his attorney, and (4) he
agreed with the statement of facts recited by the
Commonwealth that formed the basis of his guilty
plea. Defendant was then arraigned on — and
pleaded guilty to — the charges of aggravated
assault, graded as a felony of the second degree,
and burglary, graded as a felony of the first degree.

PCRA court opinion, 11/8/13 at 1-2 (citations omitted).2

Appellant did not file post-sentence motions or a direct appeal;

however, on December 27, 2010, appellant filed a timely pro se PCRA

petition. Counsel was appointed, and an amended petition was filed on

2
Judge John L. O’Grady, Jr., presided over appellant’s guilty plea and
sentencing; however, Judge O’Grady has since retired from the bench. The
Honorable Daniel J. Anders was assigned appellant’s PCRA petition.

-2-
J. S27006/15

appellant’s behalf. On December 6, 2012, the PCRA court issued Rule 907

notice3 of its intention to dismiss the petition without a hearing within

20 days. On January 22, 2013, appellant’s petition was dismissed.

Appellant filed a timely notice of appeal on February 15, 2013. On

February 20, 2013, appellant was ordered to file a concise statement of

errors complained of on appeal within 21 days pursuant to Pa.R.A.P.,

Rule 1925(b), 42 Pa.C.S.A.; appellant timely complied on March 13, 2013.

On November 8, 2013, the PCRA court filed a Rule 1925(a) opinion.

Appellant has raised the following issues for this court’s review:

1. Whether the PCRA Court committed error by
failing to hold an evidentiary hearing to
determine if trial counsel’s representation
amounted to a lack of counsel where: (a) trial
counsel[] advised [] him to enter a guilty plea
to the charge of Burglary F1; (b) trial counsel
failed to meet with Appellant prior to trial; and
(c) trial counsel failed to file a motion to
withdraw his guilty plea in violation of [the] 6 th
and 14th Amendments [to] the U.S.
Constitution, and in violation of the
Pennsylvania Constitution (PA.Const. art. I,
sec.9)?

2. Whether the PCRA Court committed error by
failing to hold an evidentiary hearing to
determine if trial counsel’s advice to him to
enter a guilty plea to the charge of Burglary F1
amounted to ineffective assistance of counsel
where the facts did not give rise to a first
degree burglary resulting in an illegal
sentence?

3
Pa.R.Crim.P., Rule 907, 42 Pa.C.S.A.

-3-
J. S27006/15

3. Whether the PCRA Court committed error by
failing to hold an evidentiary hearing to
determine if [appellant] was unlawfully induced
to enter a guilty plea by telling [appellant] that
he was entering guilty pleas to misdemeanor
charges, and [appellant] relied upon those
representation[s] in deciding to enter his guilty
pleas?

Appellant’s brief at 5.

We determine that Judge Anders’ Rule 1925(a) opinion ably and

comprehensively disposes of the matter, discussing each of the issues raised

on appeal with appropriate citation to relevant authority and without legal

error. Therein, Judge Anders explains why each of appellant’s claims is

patently without merit, with no support in the record or from other evidence,

and therefore, appellant was not entitled to an evidentiary hearing.

Appellant’s claims of ineffective assistance of counsel are baseless, and the

record indicates that appellant entered an intelligent and voluntary

negotiated guilty plea, following a thorough plea colloquy. We will affirm the

order dismissing appellant’s PCRA petition on the basis of Judge Anders’

November 8, 2013 opinion.

Order affirmed.

Stabile, J. joins the Memorandum.

Fitzgerald, J. concurs in the result.

-4-
J. S27006/15

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/26/2015

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 Circulated 07/29/2015 09:33 AM

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Defendant Charles Andrews pleaded guilty to aggravated assault and burglary. The

Honorable John O'Grady imposed a negotiated sentence or two to five years of incarceration on

each charge to be served concurrently, followed by four years of probation on the burglar}

charge.

Defendant did not file a direct appeal, but did file a timely petition pursuant to the Post

Conviction Relief Act ("PCRA''). 42 Pa.C.S. § 9541. The Honorable Daniel Anders' (herein the

PCRA court) dismissed Defendant's PCRA petition without an evidentiary hearing after

determining that the PCRA petition lacked merit. Defendant filed a timely Notice of Appeal of

the dismissal of his PCRA petition. For the reasons stated below, the appellate court should

affirm the PCRA court's dismissal of Defendant's petition without an evidentiary hearing.

FACTUAL BACKGROUND

On January 7. 2009, Police Officer Ryan Waltman observed Defendant repeatedly

banging on the front door of a residence located at 3118 Gilham Street. Philadelphia, PA. As

Officer Waltman approached the residence, Defendant picked up two packages that were located

between the storm door and the front door. After he picked up the packages, Defendant began co

walk away from the residence. Officer Waltman followed Defendant until he entered the

passenger side of a car. As the car started to pull away, Officer Wallman drew his revolver and
I
Following Judge O'Grady's retirement on December 31, 2011, this matter was assigned to Judge Anders for
disposition
 Circulated 07/29/2015 09:33 AM

ordered the driver to stop the car. In response, the driver tried to stop the car, but Defendant told

the dnver to continue driving and tried to push her leg down on the accelerator. As the car

bolted forward, Officer Waltman had to jump in order to avoid being hit by the car. Joseph

Cataline, the owner of the residence, did not know Defendant and did not give him permission to

open the storm door to the house. bang on the front door. or remove an) packages located

between the storm door and front door (N.T. 3/15/10 at 18-19)

Attorney Barbara McDermott - now Judge McDermott - represented Defendant at trial.

Following the denial of a motion to quash the aggravated assault charge, Defendant pleaded

guilt) to one count of aggravated assault and one count of burglary. In addition to the written

plea agreement forms lhat were read and signed by Defendant, Judge O'Grady conducted an oral

colloquy where Defendant stated under oath that: (1) he was pleading guilty of his own free will.

(2) be understood that he was waiving most of his appellate nghts as a result of the plea. (3) he

was satisfied with the representation by his attorney, and (4) he agreed with the statement of

facts recited b) the Commonwealth that formed the basis of his guilt) plea. Defendant was then

arraigned on - and pleaded guilty to - the charges of aggrav ated assault, graded as a felony of

the second degree. and burglar), graded as a felony of the first degree. id. at 15-20.

DISCUSSION

On appeal, Defendant asserts that the PCRA court erred by failing to hold an evidentiary

hearing to determine if: (1) trial counsel was ineffective for advising Defendant to enter a guilty

plea to the burglar) charge", (2) tria] counsel was ineffective for failing to tile a motion to

withdraw Defendant's guilty plea: (3) trial counsel was ineffective for foiling to meet with

Defendant prior to trial. and (4) Defendant was unlaw fully induced to enter a guilty plea since

1
Issues I, 4. and 6 from Defendant's I 925(b) are addressed together under heading l in this opinion for brevity.

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 Circulated 07/29/2015 09:33 AM

Defendant relied on trial counsel's representation that he was entering a guilty plea to

misdemeanor charges.

In Commonwealth v. Cox, 983 A.2d 666 (Pa. 2009), our Supreme Court set forth the

standards governing claims brought pursuant to the PCRA alleging ineffective assistance of

counsel:

Under the PCRA, collateral relief is afforded to individuals who
prove that they are innocent of the crimes of which they were
convicted, and those receiving illegal sentences. 42 Pa.C.S. § 9542.
"A petitioner is eligible for PCRA relief only when he proves by a
preponderance of the evidence that his conviction or sentence
resulted from one or more of the circumstances delineated in 42
Pa.C.S. § 9543(a)(2)." Commonwealthv. Natividad, 938 A.2d 310,
320 (Pa. 2007). One of the grounds enumerated in 42 Pa.C.S §
9542(a)(2) involves claims alleging ineffective assistance of
counsel. Tilus, the PCRA provides relief to those individuals
whose convictions or sentences "resulted from 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." 42
Pa.C.S. § 9542(a)(2)(ii). This Court has interpreted this to mean
that in order to obtain relief on a claim alleging ineffective
assistance of counsel, a petitioner must prove that: (1) the claim
underlying the ineffectiveness claim has arguable merit; (2)
counsel's actions lacked any reasonable basis; and (3) counsel s
actions resulted in prejudice to petitioner. Commonwealth v.
Collins, 957 A.2d 237 (Pa. 2008); Commonwealth v. Pierce, 527
A.2d 973 (Pa. 1987). A chosen strategy \\~11 not be found to have
lacked a reasonable basis unless it is proven 'that an alternative not
chosen offered a potential for success substantially greater than the
course actually pursued."? Commonwealth v. Williams, 899 A.2d
1060, 1064 (Pa. 2006) (quoting Commonwealth v. Howard, 719
A.2d 233, 237 (Pa. 1998)). "Prejudice in the context of ineffective
assistance of counsel means demonstrating that there is a
reasonable probability that, but for counsel's error, the outcome of
the proceeding would have been different." Commonwealth v.
Pierce, 786 A.2d 203, 213 (Pa. 2001 ); Strickland v. Washington,
466 U.S. 668, 694 (1984). Finally, the law presumes that counsel
was effective and the burden of proving that this presumption is
false rests with the petitioner. Commonwealth v. Basemore, 744
A.2d 717, 728 n.10 (Pa. 2000).

Cox, 983 A.2d at 678.

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 Circulated 07/29/2015 09:33 AM

The standard of review for an appeal from the denial of PCRA relief is "whether the

findings of the PCRA court are supported by the record and free of legal error." Commonwealth

v. Gwynn. 943 A.2d 940, 944 (Pa. 2008). «The level of deference accorded to the post-

conviction court may vary depending upon whether the decision involved matters of credibility

or matters of applying the governing law to the facts as so determined." Commonwealth v

Williams. 950 A.2d 294, 299 (Pa. 2008). "The PCRA court's factual determinations are entitled

to deference, but its legal conclusions are subject to plenary review." Commonwealth v. Gorby,

900 A.2d 346. 363 (Pa. 2006).

A judge may dismiss a PCRA petition without a hearing if: ( l) the petition is patently

frivolous and without support in the record; or (2) the facts alleged therein would not, even if

proven, entitle the defendant to relief. See Pa.RCrim.P. 907; Commonwealth v. Walls, 993 A.2d

289, 295 (Pa. Super. Ct. 2010) ( stating "It is within the PCRA court's discretion to decline to

hold a hearing if the petitioner's claim is patently frivolous and has no support either in the

record or other evidence."). "There is no absolute right to an evidentiary hearing on aPCRA

petition, and if the PCRA court can determine from the record that no genuine issues of material

fact exist, then a hearing is not necessary." Commonwealth v. Jones, 942 A.2d 903, 906 (Pa.

Super. Ct. 2008).

Here, Defendant's PCRA petition was dismissed without an evidentiary hearing because

his claims lacked merit and are without support in the record. For the reasons stated below, the

appelJate court should affirm the PCRA court's dismissal of Defendant's petition without an

evidcntiary hearing.

4
 Circulated 07/29/2015 09:33 AM

1. The PCRA court properly dismissed Defendant's claim that counsel was ineffective
in her advice to Defendant regarding entering a guilty plea to the burglary charge

a. Counsel's advice to defendant regarding entering a guilly plea was not ineffective

Defendant claims that trial counsel was ineffective for advising Defendant to enter a

guilty pica to the charge of burglary. To obtain post-conviction relief based upon ineffective

assistance of counsel relating to a guilty plea, a defendant must prove that the "plea was the

result of manifest injustice. To establish manifest injustice, [the defendant) must show that his

plea was involuntary or given without knowledge of the charge." Commonwealth v. Holbrook,

629 A.2d 154, 158 (Pa. Super. Ct. 2002).

Here, Defendant reviewed and signed a written guilty plea agreement that expressly

stated that he was pleading guilty to burglary (graded as a felony of the first degree) and

aggravated assault (graded as a felony of the second degree). See Written Guilty Plea Colloquy

Forms for CP-51-CR-0007819-2009 and CP-51-CR-0002527-2010. Additionally trial counsel

stated during the guilty plea that "my client will be entering a plea to aggravated assault as a

felony of the second degree ... That is going to be concurrent to h.is plea to burglary as a felony

of the first degree." Id. at 14. Defendant also agreed with the facts as recited by the

Commonwealth's attorney and which formed a sufficient basis for his guilty plea. Last,

following the oral colloquy conducted by Judge O''Grady, Defendant answered "Guilty" after

being arraigned on the charges of "aggravated assault, F2" and "burglary, F 1." Id. at 19-20.

Defendant is bound by the written guilty plea agreement, the oral colloquy, and the facts

to which he pleaded guilty. As a result, it was reasonable for the PCRA court to determine that

Defendant knowingly and voluntarily pleaded guilty. lhis presumption has been upheld in

Commonwealth v. lvlcCauley

Once a defendant enters a guilty plea, it is presumed that he was
aware of what he was doing. and the burden of proving
involuntariness is upon him. Therefore, where the record clearly
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demonstrates that a guilty plea colloquy was conducted, during
which it became evident that the defendant understood the nature of
the charges against him, the voluntariness of the plea is established.
A defendant is bound by the statements he makes during his plea
colloquy. and may not assert grounds for withdrawing the plea that
contradicts statements made when he pled.

Commonwealth v. McCauley, 797 A.2d 920, 922 (Pa. Super. Ct. 2001). l'hus, Defendant cannot

meet his burden of proof, and this claim is meritlcss.

b. The facts to which Defendant pleaded guilty support a
conviction for burglary graded as a felony of the first degree

Defendant also asserts that trial counsel was ineffective because the facts did not support

a conviction for burglary as a felony of the first degree. A person is guilty of burglary "if, with

the intent to commit a crime therein, the person enters a building or occupied structure, or

separately secured or occupied portion thereof that is adapted for overnight accommodations."

18 Pa.C.S. § 3502(a). A burglary committed pursuant to Section 3502(a) is graded as a felony of

the first degree. I 8 Pa.C.S. § 3502(c)(l). Here, Defendant pleaded guilty to opening a storm

door and removing two packages from inside the doorway to a residence that he was not

permitted to enter. Defendant's actions were sufficient to support a conviction for burglary

because - for purposes of the burglary statute - he entered the residence by opening the storm

door and removing the packages from this secured portion of the structure. See Commonwealth

v. Palagonia, 868 A.2d 1211 (Pa. Super. Ct. 2005) (stating the presence on a second story

balcony was sufficient for trespass). Commonwealth v. Jackson, 585 A.2d 533 (Pa. Super. Ct.

199 J) (stating the back porch attached to a residential dwelling is part of the structure for

purposes of the offense gravity score), and Commonwealth v. Rhodes, 416 A.2d l 031 (Pa. Super

Ct. 1979) (stating that an entry "is accomplished in the event that any part of the intruder' s body

enters the structure.").

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c. The trial court imposed a lawful sentence on the burglary conviction because
the facts to which Defendant pleaded gµilty adequately support the conviction

In a related claim: Defendant asserts the PCRA court imposed an unlawful sentence

because the facts did not support the burglary conviction. For the same reasons stated above,

supra at 5-6. this claim also fails.

") The PCRA court properly dismissed Defendant's claim that counsel was
ineffective for failing to file a motion to withdraw Defendant's guilty plea

Defendant alleges that trial counsel was ineffective for failing to file a motion to

withdraw Defendant's guilty plea. The claim is without merit because there is no evidence that

Defendant requested counsel to withdraw his guilty plea within 10 days after sentence was

imposed. See Pa.R.Crim.P. 720(A)(l). For this reason alone, Defendant's claim is meritless.

Moreover. in a letter to Defendant, trial counsel wrote that, "to the best of her

recollection, Petitioner's request to withdraw his guilty plea was made beyond his thirty day

appeal period." (Amended Petition at 6). In fact, immediately after the guilty plea, Defendant

fired trial counsel and instructed her not to do another thing. (Amended Petition, Exhibit A)

(Defendant "angrily shouted at [trial counsel] not to 'do another thing'" and "repeatedly made it

clear to [counsel] that [Defendant] was 'firing'" her). Trial counsel cannot be ineffective for

failing to file a motion to withdraw a guilty plea when Defendant "fired" her and instructed her

to "not do another thing."

Finally, Defendant's claim also has no merit because he cannot allege any prejudice as a

result of counsel's failure to file a motion to withdraw the guilty plea. It is well-settled that when

a defendant enters a guilty plea, he waives all challenges except those regarding jurisdiction, the

legality of the sentence, and the voluntariness of the plea. See Commonwealth v. Markowitz, 32

A.3d 706 (Pa. Super. Ct. 2011); Commonwealth v..Murray, 836 A.2d 956 (Pa. Super. Cl. 2003).

Defendant's petition does not allege that he sought to withdraw his plea based upon any of these

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three limited exceptions. Rather, he desired to withdraw the plea because he believed (I) be was

pleading guilty to misdemeanors. (2) the aggravated assault charge was not held for court at the

preliminary hearing, and (3) the burglary conviction was not supported by the evidence.

(Amended Petition at 7). As discussed supra at 7, Defendant's claims are meritless. Thus. if a

motion lo withdraw his plea would have been timely filed, the trial court would have dismissed it

as without merit. See Murray, 836 A.2d at 963 (stating that claims regarding the sufficiency of

evidence are not reviewable on appeal and are waived by entering a guilty plea). Since a post-

sentence motion to withdraw Defendant's guilty plea was meritless and would have been denied

by the trial court if timely filed, Defendant suffered no prejudice as a result of trial counsel's

failure to file the motion.

3. The PCRA court properly dismissed Defendant's claim that counsel
was ineffective for failing to meet with Defendant prior to trial

Defendant argues that trial counsel was ineffective for failing to meet with him prior to

trial. In order to prevail on this claim, Defendant must "allege any issues that his counsel should

have raised or any beneficial information that his counsel would have discovered bad further

pretrial consultations been held." Commonwealth 11. Harvey, 812 A.2d l 190, 1196-97 (Pa.

2002). Here, Defendant does not assert that trial counsel would have discovered any "beneficial

information" if further pretrial consultations were held. As a result, Defendant's claim is

meritless because he cannot sustain his burden under Harvey.

Additionallv. Defendant's petition makes only bald-faced allegations regarding trial

counsel's preparation for trial, which are wholly unsupported by the record. (Amended Petition,

at 4) ("counsel's representation was so lacking that it amounted to 'no legal' representation;"

"counsel's inaction, or failure to engage in meaningful discussions prior to trial made her

unprepared for trial;" counsel "did nothing to prepare for trial," and "[Defendant's] first contact

with trial counsel was on the day of the guilty plea."). Our Supreme Court has held that such
8
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unsubstantiated claims of ineffective assistance of counsel require dismissal of the PCRA

petition as a matter of Jaw. "In making assertions of ineffectiveness, we also require that an offer

of proof be made alleging sufficient facts upon which a reviewing court can conclude that trial

counsel may have, in fact, been ineffective. This is so because we frown upon considering

claims of ineffectiveness of counsel in a vacuum." Commonwealth v. Durst, 559 A2d 504, 505

(Pa. 1989). See also. Commonwealth v. Blystone, 617 A.2d 778 (Pa. Super. Ct. 1992) (stating

"we will not consider claims of ineffectiveness without some showing of a factual predicate.");

Commonwealth v. Gray, 608 A.2d 534, (Pa. Super. Ct. 1992) (holding that a defendant must

allege sufficient facts upon which a reviewing court can conclude trial counsel may have been

ineffective).

Last the amount of time an attorney spends with her client is not indicative of either the

extent nor adequacy of an attorney's pre-trial preparation. Harvey, 812 A.2d at I] 96-97;

Commonwealth v. Mason, 741 A.2d 708, 715-16 (Pa. 1999) (holding that counsel was not

ineffective for meeting with petitioner only two or three times prior to capital trial);

Commonweal ti, v, Bundy, 421 A.2d I 050, 1051 (Pa. 1980) (holding that counsel was not

ineffective for meeting with petitioner onJy once prior to trial). Since there is no evidence to

support his claim that trial counsel was unprepared, and because he alleges no additional

information that trial counsel could have ascertained from further consultation. Defendant's

claim is mcritless.

4. The PCRA court properly dismissed Defendant's claim that he was
unlawfully induced to enter a guilty plea because he relied on counsel's
representation that he was pleadiniz guilty to misdemeanors, not felonies

Finally, Defendant argues that he was unlawfully induced to enter a guilty plea because

he relied on trial counsel's representation that he was pleading guilty to misdemeanor charges,

not felonies. In order to prevail on this claim, a defendant must prove that there was a "causal

9
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nexus" between counsel's ineffectivness and the involuntary or unknowing guilt> plea.

Commonwealth v l. utz, 424 A.2d 1302. 1305 (Pa. 1981 ). A "causal nexus" can be established if

trial counsel fails to object to a guilty plea that docs not allow the defendant to make a knowing

and intelligent plea. Commonwealth v Jones, 640 A.2d 1330. 1335 (Pa. Super. Cl 1994).

As discussed supra at 5-6, Defendant's claim that trial counsel misrepresented the

gradation of the charges is contradicted b) the written guilt} plea agreement, counsel's

statements during the guilty pica hearing, and the oral colloquy, all of which indicate that

Defendant pleaded guilty to burglary as a felony of the first degree and aggravated assault as a

felony of the second degree. As a result, this claim is rneritless.

CONCUISION

Based on the foregoing. this court should affirm the post-conviction court 's dismissal of

elief under the PCRA.
<,

I i\ \

DANIEL J Af;.OERS, JUDGF
Dated: November 8, 2013

10