J. S25013/16
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
KAHLIL TAVARUS SHELTON, : No. 921 WDA 2015
:
Appellant :
Appeal from the PCRA Order, May 12, 2015,
in the Court of Common Pleas of Allegheny County
Criminal Division at Nos. CP-02-CR-0015251-2012,
CP-02-CR-0015499-2012
BEFORE: FORD ELLIOTT, P.J.E., MUNDY AND JENKINS, JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED APRIL 4, 2016
Kahlil Tavarus Shelton appeals from the order entered in the Court of
Common Pleas of Allegheny County that dismissed his petition filed pursuant
to the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546 (“PCRA”). We
affirm.
The PCRA court set forth the procedural history as follows:
. . . On June 4, 2014, pursuant to a negotiated plea
agreement, [appellant] pled guilty to two (2)
separate criminal cases. At the criminal information
filed at CC# 2012-15499, he pled guilty to all
charged counts, including (i) Firearms not to be
Carried Without a License (Count One – 18 Pa.C.S.A.
§ 6106(a)(1)); (ii) Carrying a Loaded Weapon
(Count Two – 18 Pa.C.S.A. § 6106.1(a));
(iii) Improper Sunscreening (Count Three –
75 Pa.C.S.A. § 4524(e)(1)); and (iv) Driving with a
Suspended License (Count Four – 75 Pa.C.S.A.
§ 1543(b)(1)).[Footnote 1] (See Plea Transcript
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(“P.T.”), 6/4/14, pp. 2-3). At the criminal
information filed at CC# 2012-15251, the
Commonwealth agreed to withdraw counts One (1),
Two (2), and Six (6) in exchange for [appellant’s]
agreement to plead guilty to the following offenses:
(i) Firearms not to be Carried Without a License
(Count Three - 18 Pa.C.S.A. § 6106(a)(1));
(ii) Firearms not to be Carried Without a License
(Count Four - 18 Pa.C.S.A. § 6106(a)(1));
(iii) Possession of a Firearm Prohibited (Count Five –
18 Pa.C.S.A. § 6105); (iv) Operating Vehicle with
Unsafe Equipment (Count Seven – 75 Pa.C.S.A.
§ 4107(b)(2)); (v) Driving with a Suspended License
(Count Eight – 75 Pa.C.S.A. § 1543(b));
(vi) Carrying a Loaded Weapon (Count Nine –
18 Pa.C.S.A. § 6106.1(a)); and (vii) Carrying a
Loaded Weapon (Count Ten – 18 Pa.C.S.A.
§ 6106.1(a)).[Footnote 2] See (P.T., pp. 2-3).
[Footnote 1] Count Five (5) of the
information was dismissed at the
preliminary hearing held on
November 26, 2012.
[Footnote 2] Counts Eleven (11) through
Thirteen (13) of the information were
dismissed at the preliminary hearing held
on November 14, 2012.
Sentencing was deferred for ninety (90) days
so that a Pre-sentence Investigation Report could be
prepared. On September 3, 2014, this court
conducted a sentencing hearing, at which time
[appellant] was sentenced at each case to a period
of incarceration of forty-two (42) to eighty-four (84)
months, to be served concurrently. [Appellant] was
given 347 days of time credit.[Footnote 3] At count
four (4) at CC# 2012-15251, [appellant] was also
ordered to serve a period of two (2) years of
probation to run consecutive to his period of
incarceration.
[Footnote 3] Specifically, at the
information filed at 2012-15499, the
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court imposed a sentence of 42 to
84 months of incarceration at Count One
(1); No Further Penalty at Counts Two
(2) and Three (3); and 60 to 90 days of
incarceration and a $500 fine at Count
Four (4). This sentence was ordered to
run concurrently with the sentence
imposed at 2012-15251, which consisted
of a 42 to 84 month term of
incarceration at Count Three (3); a
consecutive two (2) year term of
probation at Count Four (4); 60 days of
incarceration and a $500 fine at Count
Eight (8); and No Further Penalty at
Counts Five (5), Seven (7), Nine (9) and
Ten (10).
On September 17, 2014, this court granted
counsel’s motion to withdraw from the case, and the
Office of the Public Defender was appointed. On
September 24, 2015, [appellant] filed an
“Emergency Petition to Accept Post-Sentence Motion
Nunc Pro Tunc,” (“Emergency Petition”), arguing
that such relief was necessary so that he could seek
leave to “withdraw the guilty plea(s) and/or
challenge the discretionary aspects of sentencing.”
(Emergency Petition, p. 7). On September 25, 2014,
the court granted [appellant’s] request to file a
post-sentence motion nunc pro tunc, but no such
motion was ever filed. [Appellant] also did not file a
direct appeal from his judgment of sentence.
Accordingly, [appellant’s] conviction became final on
October 3, 2014, when the 30-day window for filing
a direct appeal had expired. See Commonwealth
v. Fowler, 930 A.2d 586, 593 (Pa.Super. 2007).
On March 20, 2015, [appellant] filed a
counseled PCRA Petition, alleging that he had
received ineffective assistance of counsel in
connection with his guilty plea. Specifically,
[appellant] sought to withdraw his guilty plea on the
grounds that his counsel, Patrick J. Thomassey, Esq.
(“Counsel”), provided ineffective assistance by:
(i) promising him a specific sentence of time served
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in exchange for his guilty plea; (ii) failing to
adequately consult with him regarding the case and
the suppression issues involved; and (iii) failing to
discuss his version of events and the possible
defenses that could have been raised. (PCRA
Petition, 3/20/15, pp. 7-12).
The Commonwealth filed its Answer to the
PCRA Petition on March 25, 2015. Given the nature
of the allegations involved, an evidentiary hearing on
the petition was held on April 17, 2015. Both
[appellant] and Counsel testified at the hearing.
After considering the testimony and arguments
presented, this court denied [appellant’s] request for
relief from the bench. See (PCRA Hearing Transcript
(“HT”), 4/17/15, pp. 32-33). On May 12, 2015, this
court issued a formal order denying the PCRA
petition.[Footnote 4]
[Footnote 4] The court notes that it
initially issued an order denying PCRA
relief on April 29, 2015. That order,
however, was facially defective as it
inadvertently failed to advise [appellant]
of his appellate rights. Accordingly, the
court issued a subsequent order on
May 12, 2015, advising [appellant] of his
appellate rights.
On June 11, 2015, [appellant] filed his Notice
of Appeal. [Appellant] subsequently filed a timely
“Concise Statement of Errors Complained of on
Appeal” . . . .
PCRA court opinion, 10/9/15 at 1-4.
Appellant raises the following issue for our review:
I. DID THE PCRA COURT ERR IN DENYING
[APPELLANT’S] PCRA PETITION WHEN TRIAL
COUNSEL IMPROPERLY INDUCED
[APPELLANT’S] GUILTY PLEA THROUGH AN
UNSUBSTANTIATED WARNING BY TRIAL
COUNSEL, FIRST GIVEN ON THE DAY OF
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TRIAL, OF PROBABLE FEDERAL PROSECUTION
ON THE SAME CHARGES IF [APPELLANT] DID
NOT PLEAD GUILTY?
Appellant’s brief at 4.
In PCRA appeals, our scope of review “is limited to the findings of the
PCRA court and the evidence on the record of the PCRA court’s hearing,
viewed in the light most favorable to the prevailing party.”
Commonwealth v. Sam, 952 A.2d 565, 573 (Pa. 2008) (internal quotation
omitted). Because most PCRA appeals involve questions of fact and law, we
employ a mixed standard of review. Commonwealth v. Pitts, 981 A.2d
875, 878 (Pa. 2009). We defer to the PCRA court’s factual findings and
credibility determinations supported by the record. Commonwealth v.
Henkel, 90 A.3d 16, 20 (Pa.Super. 2014) (en banc). In contrast, we
review the PCRA court’s legal conclusions de novo. Id.
Appellant’s issue asserts ineffective assistance of plea counsel.
In evaluating claims of ineffective assistance of
counsel, we presume that counsel is effective.
Commonwealth v. Rollins, 558 Pa. 532, 738 A.2d
435, 441 (Pa. 1999). To overcome this
presumption, Appellant must establish three factors.
First, that the underlying claim has arguable merit.
See Commonwealth v. Travaglia, 541 Pa. 108,
661 A.2d 352, 356 (Pa. 1995). Second, that counsel
had no reasonable basis for his action or inaction.
Id. In determining whether counsel’s action was
reasonable, we do not question whether there were
other more logical courses of action which counsel
could have pursued; rather, we must examine
whether counsel’s decisions had any reasonable
basis. See Rollins, 738 A.2d at 441;
Commonwealth v. (Charles) Pierce, 515 Pa. 153,
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527 A.2d 973, 975 (Pa. 1987). Finally, “Appellant
must establish that he has been prejudiced by
counsel’s ineffectiveness; in order to meet this
burden, he must show that ‘but for the act or
omission in question, the outcome of the proceedings
would have been different.’” See Rollins, 738 A.2d
at 441 (quoting Travaglia, 661 A.2d at 357). A
claim of ineffectiveness may be denied by a showing
that the petitioner’s evidence fails to meet any of
these prongs. Commonwealth v. (Michael)
Pierce, 567 Pa. 186, 786 A.2d 203, 221-22 (Pa.
2001); Commonwealth v. Basemore, 560 Pa. 258,
744 A.2d 717, 738 n.23 (Pa. 2000);
Commonwealth v. Albrecht, 554 Pa. 31, 720 A.2d
693, 701 (Pa. 1998).
Commonwealth v. Washington, 927 A.2d 586, 594 (Pa. 2007).
In the context of a guilty plea, a claim of ineffectiveness may provide
relief only if the alleged ineffectiveness caused an involuntary or unknowing
plea. See Commonwealth v. Mendoza, 730 A.2d 503, 505 (Pa.Super.
1999). “[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 such, a defendant “may not assert grounds for
withdrawing the plea that contradict statements made when he pled guilty.”
Id. (citation omitted). Where the defendant enters a plea on the advice of
counsel, the voluntariness of that plea depends on whether counsel’s advice
fell within the range of competence demanded of attorneys in criminal cases.
Commonwealth v. Moser, 921 A.2d 526, 531 (Pa.Super. 2007) (citation
omitted).
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Here, the record belies appellant’s claim that he pled guilty
involuntarily because Attorney Thomassey induced his plea. The record
reflects that Attorney Thomassey advised appellant to plead guilty in order
to avoid the risk of a substantially longer sentence in federal court.
The PCRA court summarized Attorney Thomassey’s testimony on this
issue as follows:
. . . Counsel explained that he was informed by law
enforcement officers that his client had been picked
up on a federal wiretap and that there was potential
for a federal indictment. [Notes of testimony,
6/4/14 at 7-8.] Counsel explained that he advised
[appellant] to plead guilty in state court because
[appellant] would most likely serve “significantly less
time” for a state court conviction, and that, in his 40
years of practicing law, he has never had a client
indicted in federal court if the client first pled guilty
in state court. [Id. at 12-13.] While Counsel
certainly recognized that a defendant may still be
subject to a federal indictment regardless of a state
court plea, he explained that “from a practitioner’s
point of view, if the Fed[s] are thinking about
indicting your client, you get them in here and get
rid of the case.” [Id. at 13.]
PCRA court opinion, 10/9/15 at 13-14.
Because it was well within the range of competence for counsel to
have advised appellant to plead guilty in state court in order to avoid the
likely risk of a substantially longer sentence in federal court, appellant’s
ineffectiveness claim necessarily fails.
Moreover, we note that the record demonstrates that appellant read,
completed, and signed an extensive written guilty plea form which is part of
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the record. (Docket #8; notes of testimony, 6/4/14 at 9.) On that form,
appellant affirmed, in writing, among other things, that (i) he fully
understood that his plea must be voluntary and his rights must be
voluntarily, knowingly, and intelligently waived; (ii) no one forced him to
enter the plea and that he did so of his own free will; (iii) no threats were
made to him to enter his plea; and (iv) no one, including his attorney,
promised him anything in exchange for the guilty plea other than the terms
of the plea bargain. (Docket #8.)
Finally, during an on-the-record oral examination at the time appellant
pled guilty, the following exchange occurred:
THE COURT: Sir, has anybody, forced, threatened or
coerced you in any way to make your guilty plea
here today?
[APPELLANT]: No, ma’am.
THE COURT: Has anyone promised you anything to
make this plea, sir, with the exception of the offer
extended by the Commonwealth?
[APPELLANT]: No, ma’am.
....
THE COURT: Sir, you completed for me the Guilty
Plea Explanation of Defendant’s Rights Form; is that
correct[?]
[APPELLANT]: Yes, ma’am.
THE COURT: Sir, did you complete that form with
the advice, assistance and supervision of your
attorney?
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[APPELLANT]: Yes, ma’am.
THE COURT: Did you, sir, answer all of the
questions in this form truthfully and honestly?
[APPELLANT]: Yes, ma’am.
Notes of testimony, 6/4/14 at 5, 8.
Appellant cannot recant the representations he made in court when he
entered his guilty plea. See Barnes, 687 A.2d at 1167. Additionally, the
law does not require that appellant be pleased with the outcome of his
decision to plead guilty. All that is required is that appellant's decision to
plead guilty be made knowingly, voluntarily and intelligently. See Moser,
921 A.2d at 528-529. Therefore, in viewing the evidence in the light most
favorable to the Commonwealth, we conclude that appellant has failed to
establish that plea counsel was ineffective because the record supports the
PCRA court’s conclusion that appellant made his plea voluntarily, knowingly,
and intelligently on the sound advice of counsel.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/4/2016
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