J-S71027-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
KEVIN W. TAYLOR,
Appellant No. 674 WDA 2015
Appeal from the PCRA Order April 6, 2015
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0008018-2012, CP-02-CR-0012644-
2012
BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, and OTT, JJ.
MEMORANDUM BY SHOGAN, J.: FILED DECEMBER 23, 2015
Kevin W. Taylor (“Appellant”) appeals from the order denying his
petition for collateral relief filed pursuant to the Post Conviction Relief Act
(“PCRA”), 42 Pa.C.S. §§ 9541-9546. We affirm.
After stealing three vehicles within a twelve-month period, Appellant
pled guilty on March 4, 2013, at Criminal Docket Numbers 12644-2012 and
08018-2012 to two counts of theft by unlawful taking, 18 Pa.C.S. § 3921.
In exchange for the guilty plea, the Commonwealth withdrew two counts of
receiving stolen property, 18 Pa.C.S. § 3925. The trial court revoked
Appellant’s bond but later reinstated it, and agreed to postpone sentencing
pending the preparation of a pre-sentence report.
J-S71027-15
Appellant failed to appear for sentencing. The trial court issued a
bench warrant, and Appellant was eventually apprehended. Appellant
appeared for sentencing on August 7, 2013. Appellant requested that
counsel inform the trial court that he wanted to withdraw his plea. Counsel
declined but advised Appellant that he could make such a motion. When
asked if he had anything to tell the trial court, Appellant responded that he
wanted to withdraw his plea. The trial court denied the motion and then
sentenced Appellant to incarceration for an aggregate term of six and one-
half to thirteen years, followed by a fifteen-year term of probation.
Appellant filed a counseled motion and amended motion to withdraw
his plea, and the Commonwealth filed a response. The motion to withdraw
was denied by operation of law on December 17, 2013. Appellant filed a
notice of appeal on January 16, 2014, but discontinued the appeal on April
4, 2014. Thereafter, Appellant filed a counseled PCRA petition on July 7,
2014, alleging plea counsel’s ineffectiveness. The Commonwealth filed a
response, raising the illegality of Appellant’s sentence. By order of court,
Appellant filed an amended PCRA petition. The PCRA court conducted an
evidentiary hearing on November 19, 2014, at which Appellant and plea
counsel testified. On April 6, 2015, the PCRA court denied Appellant’s
ineffectiveness claims but vacated and modified Appellant’s sentence,
imposing consecutive one-year probationary terms. This timely appeal
followed. Appellant and the PCRA court have complied with Pa.R.A.P. 1925.
-2-
J-S71027-15
On appeal, Appellant presents the following questions for our review,
which we reproduce here verbatim:
I That the trial court erred in dismissing Appellants PCRA
Petition by concluding that his earlier guilty plea was
knowingly and voluntarily made and as such that his trial
counsel was effective.
II That the trial court erred in dismissing Appellants PCRA
Petition by concluding that trial counsel was effective
despite failing to request that the Trial Court create a record
of his request to withdraw his plea of guilty.
Appellant’s Brief at iv.1
When reviewing the propriety of an order denying PCRA relief, this
Court is limited to determining whether the evidence of record supports the
conclusions of the PCRA court and whether the ruling is free of legal error.
Commonwealth v. Rykard, 55 A.3d 1177, 1183 (Pa. Super. 2012). We
grant great deference to the PCRA court’s findings that are supported in the
record and will not disturb them unless they have no support in the certified
record. Commonwealth v. Rigg, 84 A.3d 1080, 1084 (Pa. Super. 2014).
To obtain collateral relief, a PCRA petitioner must establish by a
preponderance of the evidence that his conviction or sentence resulted from
____________________________________________
1
We note that, in violation of Pa.R.A.P. 2119, Appellant purports to address
both issues in one argument. Appellant’s Brief at 6. In fact, however, his
argument focuses solely on the second issue, i.e., plea counsel’s
ineffectiveness in failing to create a record regarding Appellant’s request to
withdraw his guilty plea. Id. at 7–9. Thus, we conclude that Appellant has
abandoned his first issue.
-3-
J-S71027-15
one or more of the circumstances enumerated in 42 Pa.C.S. § 9543(a)(2).
Instantly, Appellant asserted in his PCRA petition ineffective assistance of
counsel (“IAC”) pursuant to 42 Pa.C.S. § 9543(a)(2)(ii).
The law presumes that counsel was effective. Commonwealth v.
Montalvo, 114 A.3d 401, 410 (Pa. 2015). Hence, it is the petitioner’s
burden to prove the contrary. Commonwealth v. Koehler, 36 A.3d 121,
132 (Pa. 2012). To plead and prove an IAC claim, a petitioner must
establish: (1) that the underlying issue has arguable merit; (2) counsel’s
actions lacked an objective reasonable basis; and (3) actual prejudice
resulted from counsel’s act or failure to act. Commonwealth v. Stewart,
84 A.3d 701, 706 (Pa. Super. 2013) (en banc). A claim of ineffectiveness
will be denied if the petitioner’s evidence fails to meet any one of these
prongs. Commonwealth v. Martin, 5 A.3d 177, 183 (Pa. 2010).
Moreover, the PCRA court’s credibility determinations, when supported by
the record, are binding on this Court. Commonwealth v. Spotz, 18 A.3d
244, 259 (Pa. 2011).
Appellant argues that plea counsel was ineffective in failing to request
withdrawal of the plea and create a record regarding that request.
Appellant’s Brief at 7. Applying the three-prong IAC test, Appellant contends
that (1) his underlying claim has merit, i.e., “he had a right under the law to
argue and develop the record on the issue of withdrawing his guilty plea
prior to sentencing;” (2) counsel lacked a reasonable basis for not “at least
-4-
J-S71027-15
advocat[ing] his client[’]s completely legitimate desire to withdraw a guilty
plea;” and (3) prejudice resulted because counsel’s ineffective assistance
“precluded [Appellant] from ever having claims of innocence heard on their
merits at the trial level and precluded him from perfecting a direct appeal
based on the denial of a motion to withdraw.” Id. at 7, 8, 9.
The PCRA court thrice rejected Appellant’s argument as disingenuous
and meritless:
During the time that I allowed for [a presentence report],
[Appellant] gets a hot urine for cocaine, I mean so I think that
he start[s] doing aggravating things during this window that I
allowed for a pre-sentence report. He gets high and does other
things which further contaminates the dynamic in this
relationship. Then after he gets –– we have to issue a warrant
for him to catch him, he comes to court, what appeared to me at
that point would be a last ditch effort to further prolong the
inevitable. And that I think was how I was understanding what
was happening.
[Plea counsel] has been practicing law here for thirty
years. He is a very –– he goes to great lengths to be an
advocate for his clients. If he tells me or I imagine his client
that that’s a dead horse, you can’t come in after the sequence of
events in this case and say I want to withdraw my plea, you
can’t say for what reason, the reason you withdraw your plea is
because I’m not guilty. But that wasn’t the issue, his guilt or
not, he just didn’t want to –– he just didn’t want to face that
that was the date that he was getting sentenced. And he, the
way I interpreted it, was just trying to make a last ditch end run
to get out of here.
N.T., 11/19/14, at 36–37.
On November 19, 2014, a hearing was held. The [c]ourt
heard from [Appellant] and [plea counsel]. [Appellant’s] version
of events failed to persuade. His PCRA testimony was at odds
with the sworn testimony he provided at the change of plea
proceeding. That difference rarely does favors for the credibility
-5-
J-S71027-15
of a PCRA petitioner. [Appellant] does not fall into the exception
camp. While recognizing that negative, the [c]ourt is also
influenced by the failure of [Appellant] to advance a fair and just
reason for allowing his withdraw[al] of the plea immediately
before sentencing. As said by his trial lawyer, the motion was
not going to be made by him because “there is no basis for” it.
Transcript, pg. 21. Undeterred by the advice of his lawyer,
[Appellant] then made a pro se request to withdraw the plea.
The [c]ourt denied it. Most importantly, at the PCRA hearing,
[Appellant] did not advance any reason why his plea should have
been allowed to be withdrawn. After some many months of
thinking about this matter, one would think that a fair and just
reason would have been advanced. Its absence is fatal to
[Appellant’s] guilty plea based PCRA claim.
PCRA Court Opinion, 4/6/15, at 1–2 (emphasis in original).
Trial counsel did not [render] ineffective assistance of counsel by
failing to make a motion to withdraw [the] plea. At the hearing,
trial counsel said the motion was not made because he did not
feel there was a legal or factual basis for it. The [c]ourt agrees
with that assessment. As such, there is no merit to the
underlying claim.
PCRA Court Opinion, 5/12/15, at 2.
Upon review, we find support in the record for the PCRA court’s factual
and credibility determinations, and we discern no error in its legal
conclusion. Notably, Appellant did not assert any grounds for the withdrawal
of his plea before the sentencing court. N.T. Sentencing, 8/7/13, at 4. In
his PCRA petition, Appellant baldly asserted that plea counsel’s
ineffectiveness caused Appellant to enter an involuntary and unknowing plea
and resulted in the lack of a record regarding Appellant’s request to
withdraw his plea. PCRA Petition, 8/27/14, at ¶ 15(A), (B). Of course,
Appellant’s first assertion belies the admissions made at his plea colloquy.
-6-
J-S71027-15
N.T. Guilty Plea, 3/4/13, at 3–7. Appellant is bound by those statements
and cannot now be heard to assert grounds for withdrawing the plea which
contradict them. See Commonwealth v. Pollard, 832 A.2d 517, 523 (Pa.
Super. 2003) (“A person who elects to plead guilty is bound by the
statements he makes in open court while under oath and he may not later
assert grounds for withdrawing the plea which contradict the statements he
made at his plea colloquy.”) (citation omitted).
As for Appellant’s second assertion, plea counsel explained why he did
not request withdrawal of the plea: “[T]here wasn’t any basis to withdraw it.
[Appellant] made a knowing, voluntary and intelligent decision to plead
guilty with my advice and my counsel, and I don’t file frivolous motions. It
just wasn’t there. I knew the Judge wasn’t happy with [Appellant], but that
really wasn’t my concern.” N.T., 11/9/14, at 22. The PCRA court agreed
with plea counsel’s assessment. PCRA Court Opinion, 5/12/15, at 2. Thus,
we conclude that plea counsel had a rational basis for refusing to request
withdrawal of the plea. Appellant’s contrary argument fails.
Because Appellant failed to establish by a preponderance of the
evidence that plea counsel was ineffective, Appellant was not entitled to
collateral relief. Accordingly, we affirm the PCRA court’s order dismissing
Appellant’s petition.
Order affirmed.
-7-
J-S71027-15
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/23/2015
-8-
Com. v. Taylor, K.
Combined Opinion