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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
RAYMOND PENDLETON
Appellant No. 356 WDA 2015
Appeal from the PCRA Order January 30, 2015
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0003702-2012
CP-02-CR-0012738-2012
CP-02-CR-0015673-2013
BEFORE: GANTMAN, P.J., JENKINS, J., and PLATT, J.*
MEMORANDUM BY JENKINS, J.: FILED OCTOBER 30, 2015
Appellant Raymond Pendleton appeals from the order of the Allegheny
County Court of Common Pleas denying his petition filed pursuant to the
Post Conviction Relief Act, 42 Pa.C.S. § 9541, et seq. We affirm.
On September 20, 2012, at docket number CP-02-CR-0012738-2012
[hereinafter homicide docket], Appellant was charged by criminal complaint
with criminal homicide, robbery (inflict serious bodily injury), and criminal
conspiracy to commit robbery.1
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
18 Pa.C.S. §§ 2502, 3701(a)(1)(i), and 903, respectfully. A conspiracy to
commit homicide charge was dismissed at the preliminary hearing.
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On March 13, 2012, at docket number CP-02-CR-0003702-2012
[hereinafter firearm docket], Appellant was charged by criminal complaint
with persons not to possess firearm, firearms not to be carried without a
license, resisting arrest, and possession of a small amount of marijuana.2
On June 10, 2013, at docket number CP-02-CR-0015673-2013
[hereinafter sexual assault docket], Appellant was charged by criminal
complaint with involuntary deviate sexual intercourse with a child, criminal
attempt – involuntary deviate sexual intercourse with a child, indecent
assault (complainant less than 13 years of age), endangering welfare of a
child by parent or guardian, corruption of minors, and indecent exposure.3
On November 20, 2013, Appellant entered into a negotiated guilty plea
at the above-referenced docket numbers. At the time of the plea hearing,
Appellant had not been arraigned on the charges at the sexual assault
docket, but waived his right to an arraignment so that he could include the
charges at that docket number in his guilty plea. N.T., 11/20/2013, at 8.
At the homicide docket, Appellant pled guilty to homicide in the third
degree, robbery, and conspiracy to commit robbery in exchange for an
agreed upon aggregate sentence of 22½ to 50 years’ incarceration. N.T.,
____________________________________________
2
18 Pa.C.S. §§ 6105, 6106, 5104, and 35 P.S. § 780-113(a)(31),
respectively.
3
18 Pa.C.S. §§ 3123(b), 901, 3126(a)(7), 4304, 6301, 3127, respectfully.
The Commonwealth withdrew a rape of a child, 18 Pa.C.S. § 3121(c),
charge.
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11/20/2013, at 9-11. At the firearms docket, the Commonwealth withdrew
the persons not to possess a firearm count, and Appellant pled guilty to
carrying a firearm without a license, resisting arrest, and possession of a
small amount of marijuana. Id. Appellant and the Commonwealth agreed
that any sentence imposed at the firearm docket would run concurrent to
the sentence imposed at the homicide docket. Id. As to the sexual assault
docket, Appellant pled guilty to involuntary deviate sexual intercourse with a
child, criminal attempt – involuntary deviate sexual intercourse with a child,
indecent assault (complainant less than 13 years of age), endangering
welfare of a child by parent or guardian, corruption of minors, and indecent
exposure. Id. The Commonwealth and Appellant agreed Appellant would be
sentenced to the mandatory minimum of 10 to 20 years’ incarceration for
involuntary deviate sexual intercourse, which would run concurrent to the
sentence imposed for the homicide charges. Id. Appellant agreed with the
summary of the plea agreement provided by the Commonwealth. Id. at 11.
At the guilty plea hearing, the following exchange occurred:
THE COURT: Are you clear-headed today, sir?
[APPELLANT]: Yes.
THE COURT: Have you had enough time to speak to your
attorney about the elements of each crime to which you
are pleading guilty, the maximum penalties that can be
imposed individually and as an aggregate on each case
and all the cases together?
[APPELLANT]: Yes.
THE COURT: Are you satisfied with her representation?
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[APPELLANT]: Yes.
THE COURT: Other than what she negotiated on your
behalf, sir, what you heard just stated in open court, has
anybody threatened or promised you anything to plead
guilty?
[APPELLANT]: No.
THE COURT: I have in front of me a guilty plea colloquy
that bears your signature as well as your lawyer’s.
[APPELLANT]: Yes.
THE COURT: Did you answer each question honestly?
[APPELLANT]: Yes, sir.
THE COURT: Was your attorney available in the event that
you had any question about this document or any matter
related to the case?
[APPELLANT]: Yes.
THE COURT: [Counsel], based on your experience and
your contact with [Appellant], do you believe that he
understands the elements of each crime, the maximum
penalties allowed by law including the aggregate sentence
that could be imposed on all of the counts, and that he is
making a knowing, intelligent, and voluntary fully informed
decision to plead guilty?
[COUNSEL]: I do, Your Honor.
THE COURT: Would the pleas violate any probation or
parole existing?
[COUNSEL]: Yes, Your Honor, with you, actually.
THE COURT: Okay. Have you talked to him about that?
Is he aware that he could face an additional penalty?
[COUNSEL]: He is aware, Your Honor.
THE COURT: Is that accurate, [Appellant]?
[APPELLANT]: Yes.
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N.T., 11/20/2013, at 11-13. The Commonwealth then summarized the facts
for each docket number, and Appellant agreed with the factual summaries.
Id. at 13-21. Appellant also signed a written guilty plea colloquy, and
confirmed the truthfulness of the written responses at the guilty plea
hearing. Guilty Plea, Explanation of Defendant’s Rights at 1-11; N.T.,
11/20/2013, at 12.
On November 20, 2013, the trial court sentenced Appellant. At the
homicide docket, the court sentenced Appellant to 15 to 30 years’
incarceration for third-degree murder, 5 to 10 years’ incarceration for
robbery, and 2½ to 10 years’ incarceration for conspiracy, to run
consecutive to each other, for an aggregate sentence of 22½ to 50 years’
incarceration. N.T., 11/20/2013, at 23-24.
At the sexual assault docket, the court sentenced Appellant to 10 to 20
years’ incarceration for involuntary sexual intercourse with a child, to run
concurrent to the sentences imposed at the homicide docket. N.T.,
11/20/2013, 24. The court imposed no further penalty for the remaining
convictions. Id. At the firearms docket, the court sentenced Appellant to 3
to 6 years’ incarceration for the persons not to possess a firearm conviction,
which was to run concurrent to the sentences imposed at the other two
docket numbers. Id. The court imposed no further penalty for the other
convictions at the firearms docket. Id.
Appellant did not file post-sentence motions or a direct appeal. On
March 11, 2014, Appellant filed a pro se PCRA petition. On March 17, 2014,
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the PCRA court appointed counsel. On August 22, 2014, counsel filed an
amended PCRA petition. On November 21, 2014, the Commonwealth filed
an answer to the amended PCRA petition. On January 5, 2015, the PCRA
court issued a notice of intent to dismiss PCRA petition without a hearing
pursuant to Pennsylvania Rule of Criminal Procedure 907 and, on January
30, 2015, it denied the petition.
Appellant filed a timely notice of appeal. The PCRA court did not order
Appellant to file a concise statement of errors complained of on appeal
pursuant to Pennsylvania Rule of Appellate Procedure 1925(b), and he did
not do so. On March 19, 2015, the PCRA court issued an order incorporating
its January 5, 2015 notice of intent to dismiss as its Rule 1925(a) statement.
Appellant raises the following issues on appeal:
1. Was [Appellant’s] claim for relief properly cognizable
under the [PCRA]?
2. Did the [trial] court abuse its discretion in denying the
petition alleging counsel’s ineffectiveness without a
hearing, where [Appellant] established the merits of the
claim that [Appellant’s] guilty plea was not knowingly and
voluntarily entered, but was unlawfully induced due to the
ineffective assistance of trial counsel, insofar as counsel
did not have sufficient time to prepare his cases for trial,
failed to fully investigate and advise [Appellant] of possible
defenses, and threatened [Appellant] that he would get life
imprisonment if he did not enter a negotiated plea?
Appellant’s Brief at 4. We agree with Appellant that his ineffective
assistance of counsel claims are cognizable on PCRA review and that he
timely filed his PCRA petition, as he filed it on March 11, 2014, within one
year of the date Appellant’s conviction became final on December 20, 2013,
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thirty days after the trial court entered his judgment of sentence. The trial
court, however, did not find Appellant’s claim non-cognizable and did not
find the PCRA petition untimely, but rather denied the PCRA petition as
meritless. Thus we shall address Appellant’s next claim.
Appellant’s second issue maintains his plea was not knowingly and
voluntarily entered because his counsel was ineffective. We disagree.
Our standard of review from the denial of post-conviction relief “is
limited to examining whether the court’s determination is supported by the
evidence of record and whether it is free of legal error.” Commonwealth v.
Ousley, 21 A.3d 1238 (Pa.Super.2011) (citing Commonwealth v.
Morales, 701 A.2d 516, 520 (Pa.1997)). Further, “a petitioner is not
entitled to a PCRA hearing as a matter of right; the PCRA court can decline
to hold a hearing if there is no genuine issue concerning any material fact
and the petitioner is not entitled to post-conviction collateral relief, and no
purpose would be served by any further proceedings.” Commonwelth v.
Smith, --- A.3d ---, 2015 Pa.Super. 173, *1 (2015) (quoting
Commonwealth v. Taylor, 933 A.2d 1035, 1040 (Pa.Super.2007)).
For ineffective assistance of counsel claims, the petitioner must
establish: “(1) that the underlying claim has merit; (2) counsel had no
reasonable strategic basis for his or her action or inaction; and (3) but for
the errors or omissions of counsel, there is a reasonable probability that the
outcome of the proceedings would have been different.” Ousley, 21 A.3d at
1244 (quoting Commonwealth v. Rivera, 10 A.3d 1276, 1279
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(Pa.Super.2010)). “[C]ounsel is presumed to be effective and the burden of
demonstrating ineffectiveness rests on appellant.” Id. “The failure to prove
any one of the three [ineffectiveness] prongs results in the failure of
petitioner’s claim.” Id. (quoting Rivera, 10 A.3d at 1279).
“Allegations of ineffectiveness in connection with the entry of a guilty
plea will serve as a basis for relief only if the ineffectiveness caused the
defendant to enter an involuntary or unknowing plea.” Commonwealth v.
Hickman, 799 A.2d 136, 141 (Pa.Super.2002) (citing Commonwealth v.
Allen, 732 A.2d 582 (Pa.1999)). Whether a plea was voluntary “depends on
whether counsel’s advice was within the range of competence demanded of
attorneys in criminal cases.” Commonwealth v. Lynch, 820 A.2d 728, 733
(Pa.Super.2003) (quoting Hickman, 799 A.2d at 141).
“[T]he law does not require that [the defendant] be pleased with the
outcome of his decision to enter a plea of guilty: All that is required is that
[his] decision to plead guilty be knowingly, voluntarily, and intelligently
made.” Commonwealth v. Willis, 68 A.3d 997, 1001 (Pa.Super.2013)
(quoting Commonwealth v. Anderson, 995 A.2d 1184, 1192 (Pa.Super.
2010) (alterations in original)). A guilty plea colloquy must “affirmatively
demonstrate the defendant understood what the plea connoted and its
consequences.” Id. at 1002 (quoting Commonwealth v. Lewis, 708 A.2d
497, 501 (Pa.Super.1998)). After a defendant enters a guilty plea, “it is
presumed that he was aware of what he was doing, and the burden of
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proving involuntariness is upon him.” Id. (quoting Commonwealth v.
Bedell, 954 A.2d 1209, 1212 (Pa.Super.2008)).
Appellant maintains his guilty plea was not knowingly and voluntarily
entered because his counsel was ineffective. Appellant’s Brief at 13.
Appellant claims that his counsel was ineffective as to the homicide docket
because his counsel: (1) did not have adequate time to prepare because she
had been appointed six months prior to trial and requested a postponement
a week before jury selection, (2) failed to inform Appellant that he could
obtain a verdict for less than third-degree murder, (3) did not discuss the
filing of a motion to suppress his statement to the police, and (4)
“threatened him that if he went to trial on the homicide charge, he would
receive a sentence of life imprisonment.” Appellant’s Brief at 16-17.
Appellant claims his counsel was ineffective at the firearms docket
because counsel did not discuss the evidence with Appellant and did not
inform Appellant he could file a motion to suppress based on an alleged lack
of reasonable suspicion or probable cause. Appellant’s Brief at 17-19.
Appellant claims counsel was ineffective at the sexual assault docket
because the charges had been held for court following a November 13, 2013
preliminary hearing and Appellant waived the arraignment at the guilty plea
hearing. He claims counsel conducted no investigation, Appellant was not
provided discovery, and did not discuss the evidence with his counsel.
Appellant’s Brief at 19. Appellant further claims his counsel failed to discuss
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trial strategy with him, including a possible motion to dismiss for failure to
provide the dates of the alleged offenses. Id. at 20-21.
The record, however, belies these claims. On May 22, 2013, trial
counsel granted a motion to withdraw filed by Appellant’s previous counsel
and appointed new counsel. Appellant’s counsel entered her appearance on
May 30, 2013. On November 7, 2013, a week prior to the jury selection,
counsel requested a postponement of trial at the homicide docket because
she had not received, and therefore had not reviewed, the trial transcripts
for Appellant’s co-defendants, who had proceeded to trial on the homicide
charges. Formal Motion for Postponement and/or Motion to Withdraw as
Counsel, 11/7/2013. At a November 18, 2013 status conference, however,
counsel indicated she had reviewed the transcripts and was prepared for
trial. N.T., 11/18/2013, at 2-3.
In the written guilty plea colloquy, which includes charges for all three
dockets, Appellant stated his attorney reviewed with him the elements of
each charged offense, the factual basis for each charged offense, and the
maximum possible sentences. Appellant understood that if he went to trial
he would have had the right to challenge the evidence presented by the
Commonwealth and that he was abandoning the right to file any pretrial
motions or to assert any defenses. Guilty Plea, Explanation of Defendant’s
Rights, at 2, 4-5, 8. He further stated no one forced him to enter the plea,
he was pleading guilty of his own free will, and no one had made any threats
to coerce a plea or made any promises in exchange for the plea. Id. at 9.
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Appellant further stated he was satisfied with the legal advice and
representation of his attorney and had ample opportunity to consult with his
attorney prior to entering the plea, he was satisfied his attorney knew the
facts of the case, and was satisfied his attorney had enough time to check
any questions of fact or law. Id. at 10.
Further, at the guilty plea hearing, Appellant confirmed he had enough
time to speak with his attorney about the elements of the crimes and the
maximum penalties, was satisfied with counsel’s representation, and no one
threatened or promised him anything to obtain his plea. He also confirmed
he truthfully answered the questions in the written guilty plea colloquy and
that his counsel was available to answer any questions regarding the written
guilty plea colloquy. N.T., 11/20/2013, at 11-12.
Appellant is bound by the statements made during his guilty plea
proceedings, which he made and confirmed under oath, and he may not now
assert grounds for withdrawing the plea which contradict the statements.
Willis, 68 A.3d at 1009. The oral and written colloquies demonstrate
Appellant understood what the plea connoted and its consequences and
Appellant has not established the plea was involuntary. Further, because
there was no genuine issue of material fact and Appellant was not entitled to
PCRA relief, the PCRA court was not required to hold an evidentiary hearing.
See Smith, 2015 Pa.Super, at *1. Accordingly, the PCRA court did not err,
and will affirm the order denying Appellant’s PCRA petition without a
hearing.
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Order affirmed.
Judge Platt joins the memorandum.
President Judge Gantman concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/30/2015
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