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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JAMES JENKINS, :
:
Appellant : No. 191 EDA 2016
Appeal from the PCRA Order December 18, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0005938-2011
BEFORE: BENDER, P.J.E., DUBOW, J., and SOLANO, J.
MEMORANDUM BY DUBOW, J.: FILED MARCH 06, 2017
Appellant, James Jenkins, appeals from the December 18, 2015 Order
denying his first Petition for relief filed pursuant to the Post Conviction Relief
Act (“PCRA”), 42 Pa.C.S. §§ 9541-46, without an evidentiary hearing. After
careful review, we affirm.
On August 10, 2011, following a hearing,1 Appellant entered a plea of
nolo contendere to Aggravated Assault and Possession of an Instrument of
Crime (“PIC”).2 At the time of the guilty plea, Appellant disclosed that, while
in custody, he was diagnosed with schizophrenia. Appellant and his counsel
1
Edwin Hernandez entered a guilty plea during the same hearing on
separate and unrelated charges of Possession with Intent to Deliver—
Cocaine at docket number CP-51-CR-0005391-2011.
2
18 Pa.C.S. § 2702(a) and 18 Pa.C.S. § 907(a).
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both stated on the record at the plea hearing that neither Appellant’s
schizophrenia, nor the medication he was taking to control it, affected
Appellant’s ability to plead competently. Appellant testified that he was
pleading no contest of his own free will.
On the same day, the trial court sentenced Appellant to a negotiated
sentence of six to twenty years’ incarceration for the Aggravated Assault
charge, and a concurrent term of two to five years’ incarceration for the PIC
charge. Appellant did not file a direct appeal from his Judgment of
Sentence.
On April 11, 2012, Appellant filed a timely pro se PCRA Petition. On
August 22, 2012, Appellant filed an Amended pro se Petition. The PCRA
court appointed counsel who filed an amended PCRA Petition on November
9, 2014. In his Petition and Amended Petition, Appellant alleged that his
trial counsel was ineffective for failing to formulate a defense strategy and
investigate witnesses, for coercing Appellant into entering an unknowing and
involuntary guilty plea, and for failing to file a Motion to Withdraw the guilty
plea as requested by Appellant. Appellant also claimed that the trial court
sentenced him to an excessive sentence, failed to respond to his letter to
withdraw his guilty plea, and prevented him from accessing discovery
materials.
On November 9, 2015, the PCRA court notified Appellant of its intent
to dismiss Appellant’s Petition without a hearing pursuant to Pa.R.Crim.P.
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907. The court dismissed Appellant’s Petition on December 18, 2015. This
appeal followed.3 On May 5, 2016, the trial court filed an Opinion in support
of its Order dismissing Appellant’s Petition.
Appellant raises the following two issues on appeal, which we have
reordered for ease of disposition:
1. Whether the court erred in not granting relief on the
PCRA [P]etition alleging counsel was ineffective[?]
2. Whether the court erred in denying the Appellant’s
PCRA [P]etition without an evidentiary hearing on the
issues raised in the amended PCRA [P]etition regarding
trial counsel’s ineffectiveness?
Appellant’s Brief at 9.
In Appellant’s first issue, he avers that the PCRA court erred in
concluding he did not receive ineffective assistance of counsel. Id. at 18-23.
We disagree.
Initially,
“Our standard in reviewing a PCRA court order is abuse of
discretion. We determine only whether the court's order is
supported by the record and free of legal error.”
Commonwealth v. Battle, 883 A.2d 641, 647 (Pa.
Super. 2005). “This Court grants great deference to the
findings of the PCRA court, and we will not disturb those
findings merely because the record could support a
contrary holding.” Commonwealth v. Hickman, 799
A.2d 136, 140 (Pa. Super. 2002). We will not disturb the
PCRA court's findings unless the record fails to support
those findings. Id.
3
The PCRA court did not order Appellant to file a Pa.R.A.P. 1925(b)
Statement.
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“A criminal defendant has the right to effective counsel
during a plea process as well as during trial.” Id. at 141.
“A defendant is permitted to withdraw his guilty plea under
the PCRA if ineffective assistance of counsel caused the
defendant to enter an involuntary plea of guilty.”
Commonwealth v. Kersteter, 877 A.2d 466, 468 (Pa.
Super. 2005).
We conduct our review of such a claim in accordance with
the three-pronged ineffectiveness test under section
9543(a)(2)(ii) of the PCRA. See [Commonwealth v.]
Lynch [, 820 A.2d 728, 732 (Pa. Super. 2003)]. “The
voluntariness of the plea depends on whether counsel's
advice was within the range of competence demanded of
attorneys in criminal cases.” Id. at 733 (quoting
Commonwealth v. Hickman, 2002 PA Super 152, 799
A.2d 136, 141 (Pa. Super. 2002)).
In order for Appellant to prevail on a claim of ineffective
assistance of counsel, he must show, by a preponderance
of the evidence, ineffective assistance of counsel which, in
the circumstances of the particular case, so undermined
the truth-determining process that no reliable adjudication
of guilt or innocence could have taken place.
Commonwealth v. Kimball, 555 Pa. 299, 724 A.2d 326,
333 (Pa. 1999). Appellant must demonstrate: (1) the
underlying claim is of arguable merit; (2) that counsel had
no reasonable strategic basis for his or her 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. Id. The
petitioner bears the burden of proving all three prongs of
the test. Commonwealth v. Meadows, 567 Pa. 344,
787 A.2d 312, 319-20 (2001). Commonwealth v.
Johnson, 868 A.2d 1278, 1281 (Pa. Super. 2005).
Kersteter, 877 A.2d at 469-69 [sic]. Moreover, trial
counsel is presumed to be effective. Commonwealth v.
Carter, 540 Pa. 135, 656 A.2d 463, 465 (1995).
Commonwealth v. Rathfon, 899 A.2d 365, 368-69 (Pa.
Super. 2006).
Additionally,
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With regard to prejudice, in Hickman, we noted that “[t]o
succeed in showing prejudice, the defendant must show
that it is reasonably probable that, but for counsel's errors,
he would not have pleaded guilty and would have gone to
trial. The ‘reasonable probability’ test is not a stringent
one.” Hickman, 799 A.2d at 141 (citations omitted;
emphasis added). The Court in Hickman derived this
standard from Nix v. Whiteside, 475 U.S. 157, 175 106
S.Ct. 988, 89 L.Ed.2d 123 (1986), which held that “[a]
reasonable probability is a probability sufficient to
undermine confidence in the outcome.”
Commonwealth v. Patterson, 143 A.3d 394, 397-98 (Pa. Super. 2016).
With respect to the voluntariness of a plea, “where the record clearly
demonstrates that a guilty plea colloquy was conducted, during which it
became evident that the defendant understood the nature of the charges
against him, the voluntariness of the plea is established. A defendant is
bound by the statements he makes during his plea colloquy’ and may not
assert grounds for withdrawing the plea that contradict statements made
when he pled.” Commonwealth v. Stork, 737 A.2d 789, 790-91 (Pa.
Super. 1999) (citations omitted).
In his Brief, Appellant first claims that trial counsel provided ineffective
assistance because he induced Appellant to enter an unknowing and
involuntary guilty plea. Appellant’s Brief at 18-21. Specifically, Appellant
claims his counsel was ineffective because he coerced Appellant into
entering a guilty plea, failed to file motions requested by Appellant, and
failed to request a psychiatric evaluation of Appellant’s competency to enter
a plea despite Appellant being diagnosed as schizophrenic. Id. at 19.
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The PCRA judge, who also presided over Appellant’s plea hearing,
reviewed Appellant’s Amended PCRA Petition and the record, after which she
denied Appellant relief. The court stated in its Opinion in support of
dismissal:
In this case, Appellant completed a four-page colloquy on
August 10, 2011. Moreover, the court’s colloquy with
Appellant established that he was made aware of all
required aspects in regard to pleading no contest and
understood the same.
In hindsight, Appellant now contends that his plea was
involuntary or induced because he was diagnosed with
schizophrenia and couldn’t understand his actions. He also
claims that he was unduly pressured by his counsel to
accept the plea.
***
In the instant case, Appellant disclosed his [schizophrenia]
diagnosis in both the written and oral colloquy, and
subsequently testified that neither his mental illness nor
medication interfered with his understanding or his
decision to plead nolo contendere. Furthermore,
Appellant’s counsel, having “had extensive conversations
about the nolo contendere plea,” testified to his belief in
Appellant’s competence.
Furthermore, the Supreme Court of Pennsylvania has held
that the diagnosis of schizophrenia combined with the
claim of undue pressure from counsel is not grounds for
relief. In Commonwealth v. Fernandez, 487 Pa. 493
(1980), the Supreme Court upheld the lower court’s
finding that a schizophrenic prisoner was competent during
his colloquy. Additionally, Fernandez’s psychiatric report
showed “that he might act impulsively under stress,” which
could lead him to buckle under his counsel’s allegedly
undue pressure to plead guilty. However, Fernandez’s
appeal was denied because no evidence was presented
“showing that his trial attorney created unusual pressure
to plead guilty, nor did Fernandez’s conduct at the plea
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proceeding indicate that he was acting impulsively or
without understanding. Id. at 499.
Lastly, Appellant contends that he was confused during the
proceeding because two defendants were being questioned
at the same time. A cursory review of the record shows
that each defendant was questioned in turn and addressed
by name when answering each question. Neither
defendant answered out of turn at any point during the
proceeding or expressed any confusion about which
defendant was being addressed.
Trial Ct. Op., 5/5/16, at 6-7 (citation to Notes of Testimony omitted).
Our review of the certified record, including the Notes of Testimony,
confirms the PCRA court’s assessment that Appellant’s “hindsight refutation
of competence is insufficient to overcome his testimony” at the guilty plea
hearing. Id. at 7. Accordingly, Appellant is not entitled to relief on this
issue.
Appellant also claims that the PCRA court erred in concluding that
Appellant received effective assistance of counsel because counsel failed to
withdraw Appellant’s guilty plea after Appellant requested that he do so.
Appellant’s Brief at 22-23. In his Brief, Appellant does not point to any
evidence of record in support of his claim that he asked his trial counsel to
withdraw his guilty plea.
With respect to this issue, the PCRA court opined as follows:
Appellant’s argument stems from a letter dated April 13,
2012, seven months after sentencing, stating “I sent [t]rial
[c]ounsel a letter several days after sentencing advising I
want to withdraw my guilty plea and go to trial.” Should
such a bald claim contained in a single letter, months after
a guilty plea, be permitted to grant relief under the
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[PCRA], Pennsylvania prisons would stand empty. Without
any corroborating evidence or supporting documentation of
a request to withdraw his guilty plea, Appellant’s claim
must fail.
Trial Ct. Op. at 7-8.
We agree with the PCRA court that Appellant’s bald assertion, made
seven months after sentencing, that he asked his trial counsel to withdraw
his plea is insufficient to support Appellant’s claim that his counsel was
ineffective. Appellant is not, therefore, entitled to relief.
In his next issue, Appellant claims that the PCRA court erred in
dismissing his Amended PCRA Petition without a hearing. Appellant’s Brief
tat 16-17. We disagree.
There is no absolute right to an evidentiary hearing, and a PCRA court
has discretion to deny a PCRA Petition without a hearing “if the PCRA court
determines that the petitioner’s claim is patently frivolous and is without a
trace of support in either the record or from other evidence.”
Commonwealth v. Hart, 911 A.2d 939, 941 (Pa. Super. 2006) (citation
omitted). When the PCRA court denies a Petition without an evidentiary
hearing, we “examine each issue raised in the PCRA [P]etition 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. Khalifah, 852 A.2d 1238, 1240 (Pa. Super.
2004).
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As discussed supra, the PCRA court properly concluded that
Appellant’s claims of ineffective assistance of trial counsel lacked merit.
Moreover, in his Brief, Appellant has not referred this Court to any genuine
issues of material fact in controversy with respect to the claims raised.
Therefore, since Appellant’s claims were frivolous, and without any support
in the record or from other evidence, we conclude that the trial court did not
err in denying relief without conducting an evidentiary hearing. See Hart,
911 A.2d at 941.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/6/2017
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