J-S77035-16
NON -PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, 1 IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
GREGORY MAURICE WYATT,
Appellant No. 1982 MDA 2015
Appeal from the PCRA Order October 13, 2015
in the Court of Common Pleas of Dauphin County
Criminal Division at No.: CP- 22 -CR- 0003361 -2013
BEFORE: PANELLA, J., OLSON, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED OCTOBER 24, 2016
Appellant, Gregory Maurice Wyatt, appeals, pro se, from the order of
October 13, 2015, which dismissed, without a hearing, his first counseled
petition brought under the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A.
§§ 9541 -9546. We affirm.
We take the underlying facts and procedural history in this matter
from the PCRA court's July 6, 2016 opinion and our independent review of
the certified record.
The facts underlying Appellant's conviction stem from his May 27,
2013 murder and robbery of an acquaintance. (See N.T. Guilty Plea
Hearing, 6/02/14, at 8 -9). On July 26, 2013, the Commonwealth filed a
* Retired Senior Judge assigned to the Superior Court.
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criminal information charging Appellant with murder, robbery, possession of
a firearm prohibited, and carrying a firearm without a license.' (See
Criminal Information, 7/26/13, at unnumbered page 1). On June 2, 2014,
Appellant entered a negotiated guilty plea to one count each of murder of
the third degree, robbery, possession of a firearm prohibited, and carrying a
firearm without a license. (See N.T. Guilty Plea Hearing, at 10). In
accordance with the terms of the plea, the trial court immediately sentenced
Appellant to an aggregate term of incarceration of not less than twenty -five
nor more than fifty years. (See id. at 14 -15).
On June 12, 2014, Appellant filed a motion to withdraw his guilty plea.
A hearing took place on July 11, 2014. At the hearing, Appellant indicated
that, when he filed the motion to withdraw his guilty plea to murder of the
third degree, he did not understand that the information had charged him
with murder generally, and that, if he withdrew his guilty plea, he would
expose himself to charges including murder of the first or second degree.
(See N.T. Motion Hearing, 7/11/14, at 6 -7). Based upon this information,
Appellant withdrew his motion to withdraw his guilty plea. (See id. at 7).
Appellant did not file a direct appeal.
On June 1, 2015, Appellant, acting pro se, filed a timely PCRA petition.
On June 29, 2015, the PCRA court appointed counsel to represent Appellant.
' See 18 Pa.C.S.A. §§ 2502, 3701(a)(1)(i) and (ii), 6105(a)(1), and
6106(a)(1), respectively.
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On July 21, 2015, PCRA counsel submitted a Turner/Finley2 letter. On
September 4, 2015, the PCRA court issued notice of its intent to dismiss the
petition and allow PCRA counsel to withdraw, pursuant to Pennsylvania Rule
of Criminal Procedure 907(1). Appellant did not file a response to the Rule
907 notice but did file a motion seeking appointment of new counsel, which
the PCRA court denied. On October 13, 2015, the PCRA court dismissed
Appellant's PCRA petition.3
The instant, timely appeal followed. On December 29, 2015, the PCRA
court ordered Appellant to file a concise statement of errors complained of
on appeal. See Pa.R.A.P. 1925(b). Appellant filed a timely Rule 1925(b)
statement on January 15, 2016. On July 6, 2016, the PCRA court issued an
opinion. See Pa.R.A.P. 1925(a)
On appeal, Appellant raises the following questions for our review.
2 Commonwealth v. Turner,
See 544 A.2d 927 (Pa. 1988);
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
3 In its October 13, 2015 order, the trial court did not address counsel's
petition to withdraw. (See Order, 10/13/15, at unnumbered page 1).
However, in its Rule 907 notice, the trial court specifically found that counsel
had complied with the dictates of Turner/Finley and announced its
intention to allow counsel to withdraw. (See Order, 9/04/15, at
unnumbered page 1). Given this, in the interest of judicial economy we will
regard as done what ought to have been done and deem the trial court's
September 4, 2015 order as granting counsel's petition to withdraw. See
Zitney v. Appalachian Timber Products, Inc., 72 A.3d 281, 285 (Pa.
Super. 2013).
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1. Whether the [PCRA] court erred for dismissing Appellant's
[PCRA petition] based on counsel's [Turner/Finley] letter,
when Appellant's claims had merit and the trial court failed to
make an independent review of the record[,] which violated
the mandates of [Turner/Finley]?
2. Whether the [PCRA] court erred for dismissing Appellant's
[PCRA petition] based on counsel's [Turner/Finley] letter,
when Appellant's claim not only had merit but the [PCRA]
court failed to conduct [an] evidentiary hearing to determine
if Appellant's [guilty] plea was invalid and undermined by
counsel's erroneous advice[ ?]
(Appellant's Brief, at 5) (unnecessary capitalization omitted).4
Appellant appeals from the denial of his first PCRA petition. We review
the denial of a post- conviction petition to determine whether the record
supports the PCRA court's findings and whether its order is otherwise free of
legal error. See Commonwealth v. Faulk, 21 A.3d 1196, 1199 (Pa. Super.
4 We direct Appellant's attention to Pa.R.A.P. 2119, which addresses the
requirements for the argument section of appellate briefs and provides, in
relevant part as follows:
Rule 2119. Argument
(a) General Rule. The argument shall be divided into
as many parts as there are questions to be argued[.]
Pa.R.A.P. 2119(a). "The Rules of Appellate Procedure state unequivocally
that each question an appellant raises is to be supported by discussion and
analysis of pertinent authority." Estate of Haiko v. McGinley, 799 A.2d
155, 161 (Pa. Super. 2002). Here, Appellant's "Statement of Matters" lists
two issues. (Appellant's Brief, at 5). However, the argument portion of his
brief combines the issues in violation of Rule 2119. (See id. at 14 -18).
Appellant's combination of issues presents a confusing format, but does not
hamper appellate review, and we shall proceed with our discussion.
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2011). To be eligible for relief pursuant to the PCRA, Appellant must
establish, inter a /ia, that his conviction or sentence resulted from one or
more of the enumerated errors or defects found in 42 Pa.C.S.A. §
9543(a)(2). See 42 Pa.C.S.A. § 9543(a)(2). He must also establish that
the issues raised in the PCRA petition have not been previously litigated or
waived. See 42 Pa.C.S.A. § 9543(a)(3). An allegation of error "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." 42 Pa.C.S.A. § 9544(b). Further,
. . . petitioner is not automatically entitled to an
a PCRA
evidentiary hearing. We review the PCRA court's decision
dismissing a petition without a hearing for an abuse of
discretion.
[T]he right to an evidentiary hearing on a post -
conviction petition is not absolute. 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. It is
the responsibility of the reviewing court on appeal to
examine each issue raised in the PCRA petition in
light of the record certified before it in order to
determine if the PCRA court erred in its
determination that there were no genuine issues of
material fact in controversy and in denying relief
without conducting an evidentiary hearing.
Commonwealth v. Miller, 102 A.3d 988, 992 (Pa. Super. 2014) (citations
omitted).
In the argument section of his brief, Appellant claims he received
ineffective assistance of plea counsel because counsel gave him erroneous
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advice that the trial court would only sentence him to a term of incarceration
of not less than fifteen nor more than thirty years. (See Appellant's Brief, at
17). Appellant also appears to contend that he was coerced into
withdrawing his motion to withdraw his guilty plea because the
Commonwealth threatened to charge him with murder of the first degree.
(See Appellant's Brief, at 17). However, Appellant has waived these claims.
Appellant did not include these claims in his statement of the questions
involved. (See Appellant's Brief, at 8). The Rules of Appellate Procedure
provide that issues to be resolved must be included in the statement of
questions involved or "fairly suggested" by it. Pa.R.A.P. 2116(a). These
issues are not included in the statement of questions involved, nor are they
"fairly suggested" by it. Thus, we hold that Appellant has waived these
claims. See Commonwealth v. Harris, 979 A.2d 387, 397 (Pa. Super.
2009) (holding claim waived when not included in statement of questions
involved). In any event, the claims lack merit
"A criminal defendant has the right to effective counsel during a plea
process as well as during trial." Commonwealth v. Rathfon, 899 A.2d
365, 369 (Pa. Super. 2006) (citation omitted). Further, "[a]llegations 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) (citation omitted). Also, "[w]here the defendant
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enters his plea on the advice of counsel, the voluntariness of the plea
depends upon whether counsel's advice was within the range of competence
demanded of attorneys in criminal cases." Id. (internal quotation marks and
citations omitted).
We presume that counsel is effective, and Appellant bears the burden
to prove otherwise. See Commonwealth v. Bennett, 57 A.3d 1185, 1195
(Pa. 2012). The test for ineffective assistance of counsel is the same under
both the Federal and Pennsylvania Constitutions. See Strickland v.
Washington, 466 U.S. 668, 687 -88 (1984); Commonwealth v. Jones,
815 A.2d 598, 611 (Pa. 2002). An appellant must demonstrate that: (1) his
underlying claim is of arguable merit; (2) the particular course of conduct
pursued by counsel did not have some reasonable basis designed to
effectuate his interests; and (3) but for counsel's ineffectiveness, there is a
reasonable probability that the outcome of the proceedings would have been
different. See Commonwealth v. Pierce, 786 A.2d 203, 213 (Pa. 2001),
abrogated on other grounds, Commonwealth v. Grant, 813 A.2d 726 (Pa.
2002). A failure to satisfy any prong of the test for ineffectiveness will
require rejection of the claim. See Jones, supra at 611. Where, as here,
Appellant pleaded guilty, in order to satisfy the prejudice requirement, he
must show that "there is a reasonable probability that, but for counsel's
errors, he would not have pleaded guilty and would have insisted on going to
trial." Rathfon, supra at 370 (citation omitted). Here, Appellant has not
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shown that there is arguable merit to his claim that he received erroneous
advice from counsel with respect to the prospective sentence.
We have held that where the record clearly shows that the court
conducted a thorough guilty plea colloquy and that the defendant
understood his rights and the nature of the charges against him, the plea is
voluntary. See Commonwealth v. McCauley, 797 A.2d 920, 922 (Pa.
Super. 2001). In examining whether the defendant understood the nature
and consequences of his plea, we look to the totality of the circumstances.
See id. At a minimum, the trial court must inquire into the following six
areas:
(1) Does the defendant understand the nature of the charges
to which he is pleading guilty?
(2) Is there a factual basis for the plea?
(3) Does the defendant understand that he has a right to trial
by jury?
(4) Does the defendant understand that he is presumed
innocent until he is found guilty?
(5) Is the defendant aware of the permissible ranges of
sentences and /or fines for the offense charged?
(6) Is the defendant aware that the judge is not bound by the
terms of any plea agreement tendered unless the judge
accepts such agreement?
Id. (citation omitted); see also Pa.R.Crim.P. 590, Comment.
Defense counsel or the attorney for the Commonwealth, as permitted
by the court, may conduct this examination. See Pa.R.Crim.P. 590,
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Comment. Moreover, the examination may consist of both a written
colloquy that the defendant read, completed, and signed, and made a part of
the record; and an on- the -record oral examination. See id.
Appellant contends that he received erroneous advice from counsel
that the trial court would sentence him to a term of incarceration of not less
than fifteen nor more than thirty years. (See Appellant's Brief, at 17).
However, the record does not support this assertion.
At the plea hearing, the Commonwealth informed Appellant of the
maximum possible for sentence for each offense, and Appellant agreed that
he understood them. (See N.T. Guilty Plea Hearing, at 3 -5). The
Commonwealth specifically stated that, under the negotiated plea
agreement, the trial court would sentence Appellant to an aggregate term of
incarceration of not less than twenty -five nor more than fifty years. (See
id. at 7). Appellant agreed that he understood that. (See id.). Following
sentencing, the trial court asked if the sentence was in accord with the
negotiated plea, defense counsel said it was, and Appellant did not object to
this statement. (See id. at 14 -15).
On July 11, 2014, the trial court held a hearing on Appellant's motion
to withdraw his guilty plea. At no point during that hearing did Appellant
object to his sentence or indicate that plea counsel had misled him with
respect to his sentence. (See N.T. Motion Hearing, at 2 -10). Further, there
is nothing in the record which demonstrates that the Commonwealth coerced
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Appellant into withdrawing his motion to withdraw his guilty plea. Rather,
the Commonwealth specifically stated that it had "no objection" to Appellant
withdrawing the guilty plea. (See id. at 2). Defense counsel then stated
that he had explained to Appellant that if he withdrew his guilty plea, the
Commonwealth would pursue a charge of murder of the first degree. (See
id. at 3). When questioned, Appellant affirmatively stated that he wished to
withdraw his motion because he had not previously understood that he could
be facing charges of murder of the first or second degree. (See id. at 7).
Thus, Appellant's claims that he received incorrect advice from counsel with
respect to his sentence and that he was threatened and /or coerced into
withdrawing his motion to withdraw his guilty plea lack merit.
Moreover, the record demonstrates that, in the totality of the
circumstances, Appellant's guilty plea was voluntary, knowing and
intelligent. Appellant, after being informed of all his rights, stated that he
wished to plead guilty. (See N.T. Guilty Plea Hearing, at 7). He
acknowledged at the plea colloquy that he understood that he was giving up
his right to trial by jury or by the court sitting as the finder of fact;
relinquishing his right to file pre -trial motions; and knew the sentencing
ranges. (See id. at 3 -7). He stated that no one forced or threatened him.
(See id. at 8). Appellant agreed that he understood that the trial court
could sentence him to consecutive sentences and that he would have limited
appellate rights. (See id. at 4 -7).
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The statements made during a plea colloquy bind a criminal defendant.
See Commonwealth v. Muhammad, 794 A.2d 378, 384 (Pa. Super.
2002). Thus, a defendant cannot assert grounds for withdrawing the plea
that contradict statements made at that time. See Commonwealth v.
Stork, 737 A.2d 789, 790 -91 (Pa. Super. 1999), appeal denied, 764 A.2d
1068 (Pa. 2000). Further, "[t]he law does not require that appellant be
pleased with the outcome of his decision to enter a plea of guilty: 'All that is
required is that [appellant's] decision to plead guilty be knowingly,
voluntarily and intelligently made. ' Commonwealth v. Yager, 685 A.2d
1000, 1004 (Pa. Super. 1996) (en banc), appeal denied, 701 A.2d 577 (Pa.
1997) (citation omitted). Here, there is nothing on the record to support
Appellant's contention that his plea was either coerced or invalid. See
McCauley, supra at 922. Thus, his claim that he received ineffective
assistance of plea counsel lacks merit. See Jones, supra at 611.
Appellant also argues that the PCRA court erred in dismissing his
petition without an evidentiary hearing. (See Appellant's Brief, at 5, 18).
The Pennsylvania Rules of Criminal Procedure provide the PCRA court with
the discretion to dismiss a PCRA petition without an evidentiary hearing if it
is patently without merit. See Pa.R.Crim.P. 907. Because Appellant's
ineffective assistance of counsel claims lack merit, the PCRA court properly
found that he was not entitled to an evidentiary hearing. See Miller, supra
at 992.
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Accordingly, for the reasons discussed above, we affirm the PCRA
court's dismissal of Appellant's PCRA petition without a hearing.
Order affirmed.
Judgment Entered.
/
J seph D. Seletyn,
Prothonotary
Date: 10/24/2016
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Com. v. Wyatt, G.
Combined Opinion