J-S51009-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
RAYMOND HARRY MILEY
Appellant No. 2997 EDA 2015
Appeal from the PCRA Order September 3, 2015
In the Court of Common Pleas of Bucks County
Criminal Division at No(s): CP-09-CR-0007472-2009
BEFORE: GANTMAN, P.J., LAZARUS, J., and PLATT, J.*
MEMORANDUM BY GANTMAN, P.J.: FILED OCTOBER 03, 2016
Appellant, Raymond Harry Miley, appeals from the order entered in the
Bucks County Court of Common Pleas, which dismissed his petition filed
under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546.
We affirm.
The relevant facts and procedural history of this case are as follows.
Appellant engaged in sexual activity with his adopted daughter over a period
of several years, beginning in 2001 when she was under thirteen years old.
In 2009, the Commonwealth charged Appellant with multiple counts of rape
of a child, involuntary deviate sexual intercourse (“IDSI”), and related
offenses. The Commonwealth’s evidence included a consensual wiretap of a
telephone conversation between Appellant and the victim, in which Appellant
_____________________________
*Retired Senior Judge assigned to the Superior Court.
J-S51009-16
admitted having sex with the victim. On December 24, 2009, Appellant filed
a motion to suppress the audio recording of the conversation. Following a
hearing, the trial court denied the suppression motion on the morning of
March 10, 2010. After a lunch recess, Appellant returned to court that same
date and entered an open guilty plea to rape of a person less than 13 years
old, rape of a child,1 IDSI with a person less than 16 years of age, unlawful
contact with minor, incest, aggravated indecent assault of a person less than
16 years of age, endangering welfare of children, and corruption of minors.
The court held an initial sentencing hearing on June 25, 2010. The victim
gave an oral victim impact statement, and plea counsel cross-examined her
on that statement. After the victim’s testimony concluded, Appellant
requested a continuance to file a motion to withdraw his guilty plea. The
court granted the continuance. On July 9, 2010, Appellant filed a motion to
withdraw his guilty plea, which the court denied. The court sentenced
Appellant on October 15, 2010, to an aggregate term of fifteen (15) to thirty
(30) years’ incarceration. Appellant filed a motion for reconsideration of
sentence, which the court granted. On December 13, 2010, the court
reduced Appellant’s aggregate sentence to twelve and one-half (12½) to
twenty-five (25) years’ incarceration. The court subsequently modified
____________________________________________
1
In 2002, the offense of “rape of a person less than 13 years of age” was
renamed “rape of a child” and moved to a different subsection of the rape
statute.
-2-
J-S51009-16
Appellant’s sentence to reflect corrected mandatory minimum terms for rape
of a child and IDSI, pursuant to 42 Pa.C.S.A. § 9718.2 Appellant’s aggregate
sentence remained twelve and one-half (12½) to twenty-five (25) years’
incarceration. Appellant filed a pro se notice of appeal, which he
subsequently withdrew.
On July 15, 2011, Appellant filed a pro se PCRA petition. The court
appointed counsel, who filed multiple amended petitions. Appellant and the
Commonwealth ultimately stipulated to reinstatement of Appellant’s direct
appeal rights nunc pro tunc. Appellant filed a notice of appeal nunc pro
tunc, and this Court affirmed Appellant’s judgment of sentence on June 10,
2014. See Commonwealth v. Miley, No. 219 EDA 2013, unpublished
memorandum (Pa.Super. filed June 10, 2014). Appellant timely filed the
current counseled PCRA petition on August 8, 2014. Following a hearing,
the PCRA court denied the petition on September 3, 2015. On September
28, 2015, Appellant filed a timely notice of appeal. The court ordered
Appellant to file a concise statement of errors complained of on appeal
pursuant to Pa.R.A.P. 1925(b), and Appellant timely complied.
Appellant raises the following issues for our review:
____________________________________________
2
Appellant does not challenge his mandatory minimum sentences.
Moreover, we observe our Supreme Court’s recent decision in
Commonwealth v. Washington, ___ Pa. ___, 142 A.3d 810 (2016), which
held that Alleyne v. U.S., ___ U.S. ___, 133 S.Ct. 2151, 186 L.Ed.2d 314
(2013) does not apply retroactively for purposes of collateral attacks on
mandatory minimum sentences as illegal sentences.
-3-
J-S51009-16
WHETHER THE HONORABLE TRIAL COURT ERRED BY
FINDING APPELLANT’S GUILTY PLEA WAS KNOWING,
VOLUNTARY, AND INTELLIGENT BECAUSE [PLEA]
COUNSEL WAS INEFFECTIVE IN THAT HE FAILED TO FULLY
INFORM APPELLANT OF CRUCIAL EVIDENCE, TO WIT, A
REPORT FROM AN EXPERT INDICATING THE WIRETAP
TAPE MAY NOT HAVE BEEN ACCURATE?
WHETHER THE HONORABLE TRIAL COURT ERRED BY
FINDING APPELLANT’S GUILTY PLEA WAS KNOWING,
VOLUNTARY AND INTELLIGENT BECAUSE [PLEA] COUNSEL
WAS INEFFECTIVE IN THAT HE IMPROPERLY PROMISED
THAT APPELLANT WOULD ONLY RECEIVE A FIVE YEAR
SENTENCE AS OFFERED BY [PLEA] COUNSEL BY THE
HONORABLE TRIAL COURT AND APPELLANT RELIED UPON
THAT REPRESENTATION?
WHETHER [PLEA] COUNSEL WAS INEFFECTIVE BECAUSE
HE DID NOT CORRECTLY INFORM APPELLANT OF THE
ELEMENTS OF THE CRIMES TO WHICH HE [PLED] GUILTY
THEREBY RENDERING THE GUILTY PLEA UNKNOWING,
INVOLUNTARY, AND UNINTELLIGENT?
WHETHER THE HONORABLE TRIAL COURT ERRED BY
FINDING [PLEA] COUNSEL EFFECTIVE DESPITE THE FACT
THAT HE FAILED TO FILE A MOTION TO WITHDRAW
APPELLANT’S GUILTY PLEA AT AN EARLIER DATE AND/OR
FAILED TO PROVIDE SUFFICIENT BASES FOR THE
WITHDRAWAL?
(Appellant’s Brief at 4).
Our standard of review of the denial of a PCRA petition is limited to
examining whether the evidence of record supports the court’s
determination and whether its decision is free of legal error.
Commonwealth v. Conway, 14 A.3d 101, 108 (Pa.Super. 2011), appeal
denied, 612 Pa. 687, 29 A.3d 795 (2011). This Court grants great deference
to the findings of the PCRA court if the record contains any support for those
-4-
J-S51009-16
findings. Commonwealth v. Boyd, 923 A.2d 513, 515 (Pa.Super. 2007),
appeal denied, 593 Pa. 754, 932 A.2d 74 (2007). We owe no deference,
however, to the court’s legal conclusions. Commonwealth v. Ford, 44
A.3d 1190, 1194 (Pa.Super. 2012). If the record supports a post-conviction
court’s credibility determination, it is binding on the appellate court.
Commonwealth v. Knighten, 742 A.2d 679, 682 (Pa.Super. 1999), appeal
denied, 563 Pa. 659, 759 A.2d 383 (2000).
The law presumes counsel has rendered effective assistance.
Commonwealth v. Williams, 597 Pa. 109, 950 A.2d 294 (2008). When
asserting a claim of ineffective assistance of counsel, a petitioner is required
to make the following showing: (1) the underlying claim is of arguable merit;
(2) counsel had no reasonable strategic basis for his 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.
Commonwealth v. Kimball, 555 Pa. 299, 312, 724 A.2d 326, 333 (1999).
The failure to satisfy any prong of the test for ineffectiveness will cause the
claim to fail. Williams, supra.
“The threshold inquiry in ineffectiveness claims is whether the
issue/argument/tactic which counsel has foregone and which forms the basis
for the assertion of ineffectiveness is of arguable merit….” Commonwealth
v. Pierce, 537 Pa. 514, 524, 645 A.2d 189, 194 (1994). “Counsel cannot
be found ineffective for failing to pursue a baseless or meritless claim.”
-5-
J-S51009-16
Commonwealth v. Taylor, 933 A.2d 1035, 1042 (Pa.Super. 2007), appeal
denied, 597 Pa. 715, 951 A.2d 1163 (2008) (quoting Commonwealth v.
Poplawski, 852 A.2d 323, 327 (Pa.Super. 2004)).
Once this threshold is met we apply the “reasonable basis”
test to determine whether counsel’s chosen course was
designed to effectuate his client’s interests. If we conclude
that the particular course chosen by counsel had some
reasonable basis, our inquiry ceases and counsel’s
assistance is deemed effective.
Pierce, supra at 524, 645 A.2d at 194-95 (internal citations omitted).
Prejudice is established when [a defendant] demonstrates
that counsel’s chosen course of action had an adverse
effect on the outcome of the proceedings. The defendant
must show that there is a reasonable probability that, but
for counsel’s unprofessional errors, the result of the
proceeding would have been different. A reasonable
probability is a probability sufficient to undermine
confidence in the outcome. In [Kimball, supra], we held
that a “criminal defendant alleging prejudice must show
that counsel’s errors were so serious as to deprive the
defendant of a fair trial, a trial whose result is reliable.”
Commonwealth v. Chambers, 570 Pa. 3, 21-22, 807 A.2d 872, 883
(2002) (some internal citations and quotation marks omitted).
In issue one, Appellant argues plea counsel litigated the suppression
motion before he received important evidence, i.e., an expert report (“OWL
report”) regarding the authenticity of the copied recording of a telephone
conversation between Appellant and the victim. Appellant asserts counsel
should have requested a continuance to gain a better understanding of the
OWL report’s findings. Appellant contends his guilty plea was unknowing
and involuntary because he relied on counsel’s false representations that the
-6-
J-S51009-16
OWL report concluded the recording had no authenticity issues. Appellant
claims counsel did not read the report before Appellant entered his plea but
simply relied on a colleague’s recitation of parts of the report over the
phone. Appellant maintains the findings of the OWL report went to the
admissibility of the recording. Appellant concludes counsel was ineffective
for inducing him to plead guilty based on misinformation concerning the
OWL report. We disagree.
“To satisfy the requirement of authenticating or identifying an item of
evidence, the proponent must produce evidence sufficient to support a
finding that the item is what the proponent claims it is.” Pa.R.E. 901(a).
[T]he ultimate determination of authenticity is for the jury.
A proponent of a document need only present a prima
facie case of some evidence of genuineness in order to put
the issue of authenticity before the factfinders.
The court makes the preliminary determination of whether
or not a prima facie case exists to warrant its submission
to the finders of fact, but the jury itself considers the
evidence and weighs it against that offered by the
opposing party.
Commonwealth v. Brooks, 508 A.2d 316, 320 (Pa.Super. 1986) (internal
citations omitted) (emphasis in original).
Instantly, on September 30, 2009, law enforcement conducted a
wiretap of a telephone conversation between Appellant and the victim, with
the victim’s consent. During pretrial discovery, plea counsel obtained a CD
copy of the audio recording of the conversation. Appellant listened to it and
denied having made the incriminating statements on the recording.
-7-
J-S51009-16
Appellant told counsel he believed different parts of the recording had been
spliced together to make it sound like Appellant was admitting guilt.
Counsel then hired an expert from OWL Investigations, Inc. to analyze the
recording and determine if it had been manipulated in that manner, i.e., if
Appellant’s words had been shifted around. The expert’s report arrived at
plea counsel’s office on the day of the suppression hearing. Meanwhile,
counsel litigated the suppression motion on issues related to the
Commonwealth’s preservation of the audio recording and compliance with
the wiretap statute.
At the suppression hearing, the Commonwealth presented the
testimony of Officer Gorman, who was involved in the wiretap investigation.
Officer Gorman testified that he was present during the recorded phone call
between Appellant and the victim. The victim nodded to Officer Gorman to
indicate that Appellant was the person on the other end of the line. Officer
Gorman testified that the recording was downloaded from a chip in the
recorder to a county-owned computer. Officer Gorman then made a CD
copy of the recording and downloaded another copy into an archive system.
Following the close of the Commonwealth’s evidence, the court denied
Appellant’s motion to suppress, without prejudice to Appellant’s right to raise
issues related to the OWL report. During the ensuing lunch recess, plea
counsel received a message from his law office that the OWL report had
arrived. Over the phone, one of the attorneys at the office read portions of
-8-
J-S51009-16
the report to plea counsel regarding the expert’s methods and conclusions.
The report referenced “anomalies” in the audio recording but did not
conclude any “splicing” had occurred. Counsel also spoke to the expert
during the recess. At the PCRA hearing, counsel testified as follows:
I believe [the report] talked about anomalies. That’s the
main word that [the expert] Mr. Owen used. And I spoke
to him after that, and he could not tell me that—he could
not testify in court that there were things taken out
of context. He could only talk about hearing things in the
background and digital—some type of—not a time stamp
but something that indicates that it did not sound continual
to him.
(N.T. PCRA Hearing, 4/1/15, at 30-31) (emphasis added). Counsel
concluded the report would affect only the weight of the evidence, not its
admissibility, which was a reasonable conclusion in light of the expert’s
findings, and the authentication evidence the Commonwealth presented at
the suppression hearing. See Brooks, supra. Counsel testified that he had
shared the information he received about the report with Appellant during
the court recess. Based on that discussion and previous conversations with
counsel on the possibility of pleading guilty, Appellant decided to enter a
guilty plea. Additionally, Appellant testified that he received a copy of the
OWL report from counsel approximately five weeks after the plea had been
entered. Therefore, Appellant had ample time to review the report before
the sentencing hearing on June 25, 2010. Nevertheless, counsel testified
that Appellant made no request to withdraw his plea at any time before
sentencing. The PCRA court credited counsel’s testimony on this issue. See
-9-
J-S51009-16
Knighten, supra. Based on the foregoing, Appellant failed to establish
arguable merit to his claim that counsel misrepresented the OWL report.
Appellant also failed to establish prejudice, i.e., that he would not have pled
guilty if counsel had provided an accurate picture of the report’s content.
Thus, Appellant’s first challenge to counsel’s effectiveness merits no relief. 3
See Kimball, supra.
In issue two, Appellant argues plea counsel repeatedly told Appellant
he would receive a maximum five-year sentence if he pled guilty. Appellant
further contends counsel improperly involved the trial court in the plea
negotiations. Appellant claims he was induced to plead guilty by counsel’s
false assurances of a five-year sentence. Appellant concludes counsel’s
representations regarding sentencing constituted ineffective assistance. We
disagree.
“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.
Moser, 921 A.2d 526, 531 (Pa.Super. 2007) (quoting Commonwealth v.
____________________________________________
3
Appellant also suggests counsel was ineffective for failing to raise other
issues at Appellant’s suppression hearing. Appellant, however, failed to
develop his argument on those issues, including the merit of the underlying
claims. Therefore, those issues are waived. See Commonwealth v.
D’Amato, 579 Pa. 490, 500, 856 A.2d 806, 812 (2004) (stating that to
succeed on allegation of counsel’s ineffectiveness, PCRA petitioner must, at
minimum, present argumentation relative to each layer of ineffective
assistance, on all three prongs of the ineffectiveness standard).
- 10 -
J-S51009-16
Hickman, 799 A.2d 136, 141 (Pa.Super. 2002)). “Where the defendant
enters his plea on the advice of counsel, the voluntariness of the plea
depends on whether counsel’s advice was within the range of competence
demanded of attorneys in criminal cases.” Id.
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, …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. This
standard is equivalent to the “manifest injustice” standard
applicable to all post-sentence motions to withdraw a
guilty plea.
Commonwealth v. Morrison, 878 A.2d 102, 105 (Pa.Super. 2005) (en
banc), appeal denied, 585 Pa. 688, 887 A.2d 1241 (2005) (internal citations
omitted).
Further, a trial judge may not participate in the plea bargaining
process. Commonwealth v. Evans, 434 Pa. 52, 252 A.2d 689 (1969);
Commonwealth v. Johnson, 875 A.2d 328 (Pa.Super. 2005), appeal
denied, 586 Pa. 748, 892 A.2d 822 (2005).
“Participation”…denotes some active role in discussion or
negotiations relative to a plea. It is to be avoided as
undesirable and potentially unfair to a defendant…. The
mere presence of a trial judge at a conversation between
counsel at which the possibility of a plea bargain is
mentioned does not amount to participation by the trial
judge in the plea bargaining.
Commonwealth v. Sanutti, 454 Pa. 344, 348, 312 A.2d 42, 44 (1973).
Instantly, the PCRA court reasoned as follows:
- 11 -
J-S51009-16
We begin by noting that the testimony elicited at
Appellant’s PCRA Hearing contradicts the notion that this
[c]ourt engaged in any sentencing negotiations. [Plea
counsel] testified that during a conference prior to the
Suppression Hearing, both himself and the assistant
district attorney discussed potential sentences if Appellant
entered a guilty plea. [Plea counsel] explicitly testified
that this [c]ourt was not involved in the negotiations, but
rather simply confirmed that a mandatory minimum was
being invoked in the case. So the premise supporting
Appellant’s claim is erroneous.
Next, the testimony from Appellant’s PCRA Hearing further
establishes that no promises of any sentence were made
to Appellant. [Plea counsel] confirmed that he did not
promise Appellant that he would receive a five (5) year
sentence if he pled guilty, but rather estimated that the
sentence would be between the five (5) year mandatory
minimum sentence and the ten (10) year sentence that
the assistant district attorney represented that she would
seek. Moreover, despite Appellant[’s] and [his father’s]
testimony that [plea counsel] continually communicated
that Appellant should expect to receive a five (5) year
sentence, letters that they each wrote at the time reflect
that neither individual was expecting any particular
sentence.
* * *
Finally, Appellant confirmed when entering his guilty plea
that he was not promised any particular sentence. The
exchange between this [c]ourt and Appellant went as
follows:
The [c]ourt: Has anybody promised you about
what my sentence would be?
Appellant: No, your honor.
N.T. [Guilty Plea,] 3/10/10, [at] 15. When given the
opportunity to divulge any promises that were made by
[plea] counsel or any other person, Appellant confirmed
that no promises were made regarding any potential
sentence that could be imposed. Considering the fact that
- 12 -
J-S51009-16
the testimony and evidence produced at Appellant’s PCRA
Hearing, coupled with Appellant’s admissions under oath at
his Guilty Plea Hearing, contradict any suggestion that
Appellant was promised a particular sentence, there is no
value to the claim that Appellant’s guilty plea was not
knowing, intelligent, or voluntary due to that reason.
Therefore, Appellant’s [plea] counsel cannot be ineffective
when the underlying claim lacks merit.
(PCRA Court Opinion, filed January 7, 2016, at 11-12). The record supports
the PCRA court’s findings that: (1) the trial court did not improperly
participate in plea negotiations; and (2) counsel did not induce Appellant to
plead guilty with false assurances of a maximum five-year sentence.
Therefore, the claims underlying Appellant’s second ineffectiveness challenge
lack arguable merit. See Pierce, supra.
In issue three, Appellant argues the court misinformed him regarding
the elements of IDSI during the guilty plea colloquy. Appellant asserts the
court referred to “sexual intercourse” but the offense requires an act of
“deviate sexual intercourse.” Appellant contends this mistake rendered his
plea involuntary and counsel was ineffective for failing to correct the error.
We disagree.
The Pennsylvania Rules of Criminal Procedure mandate that pleas be
taken in open court, and require the court to conduct an on-the-record
colloquy to ascertain whether a defendant is aware of his rights and the
consequences of his plea. Commonwealth v. Hodges, 789 A.2d 764
(Pa.Super. 2002). Specifically, the court must affirmatively demonstrate the
defendant understands: (1) the nature of the charges to which he is
- 13 -
J-S51009-16
pleading guilty; (2) the factual basis for the plea; (3) his right to trial by
jury; (4) the presumption of innocence; (5) the permissible ranges of
sentences and fines possible; and (6) the judge is not bound by the terms of
the agreement unless he accepts the agreement. Pa.R.Crim.P. 590
Comment; Commonwealth v. Watson, 835 A.2d 786 (Pa.Super. 2003).
“The guilty plea colloquy must affirmatively demonstrate that the defendant
understood what the plea connoted and its consequences.”
Commonwealth v. Bedell, 954 A.2d 1209, 1212 (Pa.Super. 2008), appeal
denied, 600 Pa. 742, 964 A.2d 893 (2009). Defense counsel or the attorney
for the Commonwealth may conduct part or all of the examination of the
defendant, as permitted by the court. Pa.R.Crim.P. 590 Comment. A guilty
plea will be deemed valid if an examination of the totality of the
circumstances surrounding the plea shows that the defendant had a full
understanding of the nature and consequences of his plea such that he
knowingly and intelligently entered the plea of his own accord.
Commonwealth v. Rush, 909 A.2d 805 (Pa.Super. 2006). “[A] trial court
may consider a wide array of relevant evidence…to determine the validity of
a…plea agreement including, but not limited to, transcripts from other
proceedings, off-the-record communications with counsel, and written plea
agreements.” Commonwealth v. Allen, 557 Pa. 135, 147, 732 A.2d 582,
589 (1999).
Instantly, at Appellant’s guilty plea hearing, the trial court conducted a
- 14 -
J-S51009-16
lengthy colloquy in which it reviewed, inter alia, the elements of each
applicable offense. While reviewing the IDSI charge, the court stated:
THE COURT: What that means is that between the years
of 2003 and 2005 you engaged in sexual intercourse with
a child…who was less than 16 years of age while you were
more than four years older than she was, and that the two
of you were not married to each other. Do you understand
that?
[APPELLANT]: Yes.
(N.T. Guilty Plea at 19). The court did not specify “deviate” sexual
intercourse at that moment of the colloquy. Nevertheless, during the same
proceedings, the Commonwealth recited the factual basis underlying the
IDSI charge as follows: “[T]he alleged deviate sexual intercourse in this case
is using a sex toy on the victim’s vagina when she was 15 years of age, and
also [Appellant], in addition to placing the toy there, he also placed his
tongue on the victim’s vagina when she was younger than 16 years old.”
Id. at 30. The following exchange then took place between the court and
Appellant:
THE COURT: Do you understand what [the
Commonwealth] said?
APPELLANT: Yes.
THE COURT: You understand that those are the
facts that support the charge?
APPELLANT: Yes.
THE COURT: You’re admitting to that?
APPELLANT: Yes.
- 15 -
J-S51009-16
Id. at 30-31. Additionally, the criminal complaint and information correctly
set forth the elements of IDSI, and plea counsel testified at the PCRA
hearing that he had reviewed the charges with Appellant before the guilty
plea hearing. An examination of the totality of the circumstances
surrounding the plea reveals Appellant understood the nature of the IDSI
charge. Therefore, counsel was not ineffective for failing to inform Appellant
of the elements of IDSI.4 See Pierce, supra.
In issue four, Appellant argues he asked plea counsel to file a motion
to withdraw the guilty plea immediately upon receipt of the OWL report.
Appellant contends the trial court denied his motion to withdraw the plea,
and this Court affirmed that decision, because counsel waited to file the
motion until after the victim had testified at the June 25, 2010 sentencing
hearing. Appellant maintains counsel could have avoided prejudice to the
Commonwealth by filing the motion to withdraw earlier. Appellant further
asserts counsel failed to present and preserve meritorious grounds for
withdrawing the plea, other than Appellant’s assertion of innocence and a
change in defense strategy based on the victim’s impact testimony.
____________________________________________
4
To the extent Appellant directly challenges the validity of the guilty plea
based on a defective plea colloquy, that issue is waived because Appellant
failed to raise it in his motion to withdraw the guilty plea or on direct appeal.
See 42 Pa.C.S.A. § 9544(b) (stating: “[A]n issue is waived if the petitioner
could have raised it but failed to do so before trial, at trial, during unitary
review, on appeal or in a prior state postconviction proceeding”).
- 16 -
J-S51009-16
Appellant claims counsel should have argued Appellant’s plea was
involuntary in light of the OWL report and/or the trial court’s misstatement
of the elements of IDSI during the plea colloquy. Appellant concludes
counsel’s delay in filing a motion to withdraw the plea, and counsel’s failure
to argue meritorious grounds for withdrawal, constituted ineffective
assistance. We disagree.
The following legal principles apply to a pre-sentence motion to
withdraw a plea:
At any time before the imposition of sentence, the court
may, in its discretion, permit, upon motion of the
defendant, or direct sua sponte, the withdrawal of a plea of
guilty or nolo contendere and the substitution of a plea of
not guilty. Although there is no absolute right to withdraw
a guilty plea, properly received by the trial court, it is clear
that a request made [b]efore sentencing...should be
liberally allowed. Thus, in determining whether to grant a
pre-sentence motion for withdrawal of a guilty plea, the
test to be applied by the trial courts is fairness and justice.
If the trial court finds “any fair and just reason,”
withdrawal of the plea before sentence should be freely
permitted, unless the prosecution has been “substantially
prejudiced.” As a general rule, the mere articulation of
innocence [is] a “fair and just” reason for the pre-sentence
withdrawal of a guilty plea unless the Commonwealth has
demonstrated that it would be substantially prejudiced.
Commonwealth v. Prendes, 97 A.3d 337, 351–52 (Pa.Super. 2014),
appeal denied, 629 Pa. 635, 105 A.3d 736 (2014) (internal citations
omitted). See also Commonwealth v. Carrasquillo, ___ Pa. ___, 115
A.3d 1284 (2015) (holding there is no per se rule regarding pre-sentence
requests to withdraw pleas; court should consider plausibility, sincerity,
- 17 -
J-S51009-16
motivation, and timing of request; courts must also consider whether
allowing withdrawal of plea will prejudice Commonwealth).
Instantly, at the initial sentencing hearing on June 25, 2010, the victim
gave an oral victim impact statement. During cross-examination of the
victim regarding her impact statement, plea counsel elicited testimony that
he believed cast doubt on the victim’s memory of when the sexual abuse
started. Counsel requested a continuance and subsequently filed a motion
to withdraw Appellant’s guilty plea. The trial court denied the motion. On
appeal, this Court affirmed the trial court’s ruling on the ground that the
Commonwealth would be substantially prejudiced by Appellant’s withdrawal
of his guilty plea at that late stage in the proceedings.5
With respect to Appellant’s claim that counsel was ineffective for failing
to seek withdrawal of the plea at an earlier time, the PCRA court reasoned:
The “fair-and-just reason” cited by Appellant in his Motion
was the change in the victim’s statement that was
revealed when she testified at Appellant’s Sentencing
Hearing. [Plea counsel] testified that as soon as he
____________________________________________
5
This Court stated: “The averments represent an admission that [Appellant]
believed he had obtained an advantage from Victim’s oral impact statement
that could be used against her and to the Commonwealth’s detriment.
[Appellant] obtained testimony otherwise unavailable to him, to the
Commonwealth’s prejudice. [Appellant] was intending to use the
information to alter his trial strategy. Notwithstanding [Appellant’s]
subsequent assertion of innocence, [Appellant] was seeking to use
information only available through the sentencing process to his benefit.
This is a fundamentally unfair attempt to use the sentencing process to tip
the scales in his favor. We believe this represents the essence of substantial
prejudice to the Commonwealth.” Miley, supra at *10.
- 18 -
J-S51009-16
noticed a possible issue with her testimony, he
immediately halted the proceeding and discussed with
Appellant and [his father] the potential of withdrawing
Appellant’s guilty plea. [Plea counsel] verified that this
moment was the first time that the possibility of
withdrawing the plea was discussed, and [Appellant’s
father] further corroborated that fact in his testimony.
[Plea] counsel acted as soon as the potential fair and just
reason surfaced, so it cannot be said that he was
ineffective for failing to move for the withdrawal at an
earlier time.
Additionally, the evidence revealed at Appellant’s PCRA
Hearing further points to the fact that Appellant did not
ask [plea] counsel to withdraw his plea at an earlier date….
Despite Appellant’s testimony that he requested his [plea]
counsel to withdraw his plea at a prior point, his account is
belied by both [plea counsel’s] and [Appellant’s father’s]
recollection that the Sentencing Hearing was the first
instance where the subject of withdrawing Appellant’s
guilty plea was discussed. As such, [plea] counsel raised
the motion before the [c]ourt at the earliest opportunity,
and we therefore submit that the underlying claim is
meritless. Additionally, [plea] counsel possessed a
reasonable basis for raising the Motion at the given time.
(PCRA Court Opinion at 14-15). The record supports the court’s reasoning.
Plea counsel could not have filed the motion to withdraw the guilty plea on
the grounds asserted, at an earlier time. Further, the PCRA court was free
to reject Appellant’s testimony that he requested counsel to withdraw the
plea for other reasons prior to the June 25, 2010 sentencing hearing. See
Knighten, supra.
Additionally, Appellant’s claim that counsel should have sought to
withdraw Appellant’s plea based on the OWL report, even absent a request
from Appellant, is illogical given that counsel had explained the findings of
- 19 -
J-S51009-16
the OWL report to Appellant before Appellant decided to plead guilty. The
trial court’s single omission of the word “deviate” during the plea colloquy
provided no basis for withdrawal either, where the totality of the
circumstances showed Appellant understood the elements and factual basis
of the IDSI charge. Therefore, counsel’s timing on the motion to withdraw
the guilty plea was reasonable and did not constitute ineffective assistance.
See Kimball, supra. Based on the foregoing, none of Appellant’s
challenges to counsel’s effectiveness merit relief. Accordingly, we affirm.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/3/2016
- 20 -