Com. v. Gray, D.

J-S03016-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee

v.

DWIGHT L. GRAY, JR.

Appellant No. 579 WDA 2016

Appeal from the PCRA Order dated April 11, 2016
In the Court of Common Pleas of Blair County
Criminal Division at No(s): CP-07-CR-0002592-2011

BEFORE: OLSON, J., SOLANO, J., and STRASSBURGER, J.*

MEMORANDUM BY SOLANO, J.: FILED MARCH 29, 2017

Appellant, Dwight L. Gray, Jr., appeals from the order dismissing his

petition filed under the Post Conviction Relief Act (PCRA), 42 Pa.C.S.

§§ 9541-9546. We affirm.

“On August 24, 2012, appellant entered a [negotiated] plea of nolo

contendere to seventeen counts of possession with intent to deliver a

controlled substance (‘PWID’), one count of criminal use of communication

facility, one count of investment of racketeering proceeds in corrupt

____________________________________________

*
Retired Senior Judge assigned to the Superior Court.
J-S03016-17

organizations, and one count of criminal conspiracy.”1 PCRA Ct. Op.,

4/11/16, at 1.

On August 24, 2012, Appellant was sentenced to 5-10 years’

confinement for one count of PWID (Count 2 on the criminal information), a

consecutive 5-10 years’ confinement for another count of PWID (Count 3 on

the criminal information), a consecutive 3-10 years’ confinement for a third

count of PWID (Count 4 on the criminal information), and 1-2 years’

confinement for all remaining counts, to be served concurrently to each

other and to the three previously mentioned PWID counts. Sentencing

Order, 8/24/12, at 1-14; N.T., 8/24/12, at 4; Information, 6/13/12, at 1-2.2

Appellant’s aggregate sentence therefore was 13-30 years’ confinement.

Appellant did not file a direct appeal.

On April 4, 2013, the PCRA court docketed Appellant’s timely3 pro se

PCRA petition. In that petition, Appellant claimed that, due to the ineffective

____________________________________________

1
35 P.S. § 780-113(a)(30) and 18 Pa.C.S. §§ 7512(a), 911(b)(1), and 903,
respectively.
2
In the record, there are two orders dated August 24, 2012, executed by
the Honorable Jolene Grubb Kopriva, and stamped “2012 AUG 30 A 10:48”
by the Blair County Prothonotary/Clerk of Courts. We use “Sentencing
Order” to refer to the order that is 16 pages and not to the order of that
same date that is one page.
3
April 4, 2013, is the date that Appellant’s first PCRA petition was received
by the Blair County Prothonotary/Clerk of Courts; no other date appears on
the petition indicating when it was mailed. Appellant’s judgment of sentence
became final on September 24, 2012 (as September 23 was a Sunday),
(Footnote Continued Next Page)

-2-
J-S03016-17

assistance of his counsel, his guilty plea was not knowing, intelligent, and

voluntary, and he therefore should be permitted to withdraw it.

The Court conducted a hearing on December 2, 2015, with all parties

present. Appellant testified as follows during the hearing:

Q. . . . Who was your attorney at the time of your plea[] and
sentencing?

A. Attorney Mark Zearfaus.

Q. Okay. And, do you recall discussing with him your plea?

A. Certain aspects of it but, I mean, I discussed the plea but
there was other things that I wasn’t aware of, there were things
we discussed, you know, what I mean; like, there was other
things that I wasn't aware of. But as far as the thirteen and
thirty, we discussed it yeah.

Q. Okay. I know it is a bit odd to ask you to describe the
negative but what things are you talking about there when you
say, there were things that you did not discuss.

[A]. Well, I was under the impression, like I said with the
permissible ranges of the actual drugs that I was charged with.
I was under the impression that it was going to be one charge do
you understand what I saying? It was more because of the fact
then because the mandatory minimum I was under the
impression that that one charge it could be combined and it
would hold seven years. I did not know that I was going to be
charged with the same thing but it was just separated like they
charged me with the two separate ranges of the drugs but it was
only one total amount and it went over top of that. If that made
any sense or whatever.
_______________________
(Footnote Continued)

when the 30-day time period for filing a direct appeal to this Court expired.
See 1 Pa.C.S. § 1908; 42 Pa.C.S. § 9545(b)(3); Pa.R.A.P. 903. Because
April 4, 2013, was less than one year after Appellant’s judgment of sentence
became final, his PCRA petition was timely, and this Court therefore has
jurisdiction to consider this appeal. See 42 Pa.C.S. § 9545(b).

-3-
J-S03016-17

Q. Just to clarify, you are referring to the amounts listed in the
affidavit of probable cause that were originally charged you?

A. Exactly, I was under the impression because of the mandatory
minimums that I would be able to receive the amount of time
that I received the eight to twenty years combined for the
charges.

Q. Okay, so what did you end up, what is your understanding
of what happened with your sentence?

A. Well, now, after going over it, I realize that instead of the
one charge that I was supposed to get from the fifty to a
hundred grams, I got charged with fifty to hundred and ten to
fifty. And I got instead of the five to ten, I got a five to ten and
a three to ten for those, which it was one thing, it was one
continuous act however they separated it and charged me twice.

Q. Was it explained to you how this would come about that
you would receive a thirteen to thirty year sentence?

A. No, not the way that it actually, not the way that it would
happen wasn’t what was explained to me. It was explained to
me differently.

N.T., 12/2/15, at 2-4. Appellant asked the PCRA court to “reinstate a plea

offer . . . of ten to twenty years.” Id. at 12. In support of that request, he

introduced a letter to himself from plea counsel dated October 4, 2011,

which stated: “Right now, your best offer is 10-20 years if you enter a plea

and that will cover all your cases and anything that might not yet be filed

against you.” Appellant’s Ex. 1; N.T., 12/2/15, at 13 (exhibit introduced),

44 (exhibit admitted).

During Appellant’s cross-examination, the Commonwealth clarified

Appellant’s testimony:

-4-
J-S03016-17

Q. Would you agree that on the August 24, 2012, proceeding
where you entered your nolo contendere plea and were
sentenced it was explained to you that there was an agreement
for thirteen to thirty years that would be your sentence, were
you aware of that?

A. Yes.

N.T., 12/2/15, at 18.

Near the close of the cross-examination, the Commonwealth

introduced a handwritten letter, Commonwealth’s Exhibit 2, that was dated

“7/10/11” and purportedly was signed by Appellant and addressed to

Appellant’s brother, “Guy.” The letter discussed the need for witnesses and

plea negotiations and contained the statement that, “They offered me ten to

twenty years for my charges.” N.T., 12/2/15, at 28. Appellant objected to

the admission of Commonwealth’s Exhibit 2 on the basis that he denied

writing or recognizing the letter. Id. at 29. The PCRA court overruled the

objection. Id. at 30.

Appellant’s plea counsel, Mark Zearfaus, testified that the aim of his

plea negotiations was to reduce the length of Appellant’s sentence. N.T.,

12/2/15, at 45-46. He testified that in October 2011, he told Appellant that

the “best offer” from the Commonwealth was 10 to 20 years, but that

Appellant refused to accept that offer. Id. at 47. Less than a week before

Appellant entered his plea, Mr. Zearfaus sent a letter to Appellant stating

that Appellant’s sentence was going to be 13-30 years of incarceration. Id.

at 46, 50. Mr. Zearfaus’ testimony continued:

-5-
J-S03016-17

Q. . . . At any time prior to Judge Kopriva imposing a
negotiated sentence of thirteen to thirty years for the agreed
upon counts, did [Appellant] ever indicate to you that he
changed his mind or did not want to go through with the nolo
contendere plea?

A. No.

Id. at 56. Mr. Zearfaus also denied that Appellant or his family members

ever contacted him after entry of the plea to say that they wanted the plea

withdrawn. Id. at 46. Mr. Zearfaus testified that he was ready to go to trial

if that was Appellant’s wish. Id. at 47.

By an order entered April 11, 2016, the PCRA court dismissed

Appellant’s PCRA petition. The court explained:

We are constrained to find Defendant cannot show that he
was prejudiced by any ineffectiveness. Put simply, Defendant
claims that he thought he was entering a nolo contendere plea
which included multiple counts to a sentence totaling 13 to 30
years. He in fact did enter a nolo contendere plea on multiple
counts for a sentence of 13 to 30 years. The only difference
between what Defendant claims he understood to be the deal
and what he actually pled to and received as a sentence, is that
he claims one PWID charge was split into two distinct counts
while in his opinion it should have been one count. Defendant
claims that had he known this, he would have never entered the
nolo contendere plea and would have gone to trial.

It is clear from Attorney Zearfaus’s testimony and
Defendant’s own testimony that the strategy was to get
Defendant less total time in jail. Attorney Zearfaus was less
concerned as to which of the many PWID charges would be the
lead charge and more concerned with negotiating a plea for a
shorter sentence. The Court does not find Defendant’s
testimony credible that had he known the alleged error, he
would not have pled nolo contendere. Because Defendant
cannot show he was prejudiced since he received the 13-30 year
sentence he negotiated, he cannot prove by a preponderance of

-6-
J-S03016-17

the evidence that his sentence resulted from any ineffective
assistance of counsel.

PCRA Ct. Op., 4/11/16, at 5-6.

On April 19, 2016, Appellant filed a timely appeal with this Court.

Appellant presents three issues for review:

1. Whether the [PCRA] Court erred in admitting a
handwritten letter over [Appellant]’s objection?

2. Whether the [PCRA] Court accorded excessive and
inordinate weight to a handwritten letter where [Appellant]
denied writing said letter?

3. Whether the [PCRA] Court erred in concluding [Appellant]
failed to set forth evidence sufficient to show that he was
prejudiced by [plea] counsel’s ineffectiveness?

Appellant’s Brief at 4 (reordered to facilitate disposition).

This Court’s standard of review regarding an order dismissing a
petition under the PCRA is to determine whether the
determination of the PCRA court is supported by the evidence of
record and is free of legal error. The PCRA court’s findings will
not be disturbed unless there is no support for the findings in
the certified record.

Commonwealth v. Hill, 149 A.3d 362, 364–65 (Pa. Super. 2016) (citation

and quotation marks omitted).

In his brief to this Court, Appellant makes no argument about the two

evidentiary issues regarding the “handwritten letter,” beyond baldly listing

them in his statement of the questions involved pursuant to Pa.R.A.P. 2116.

See Appellant’s Brief at 4, 8-12. Since these claims are not explained,

developed, or supported by the record factually or legally, they are deemed

-7-
J-S03016-17

meritless and waived. See Commonwealth v. Spotz, 47 A.3d 63, 108

n.34 (Pa. 2012).4

We now turn to Appellant’s claim of ineffective assistance of counsel.

Appellant contends that due to the ineffective assistance of his plea counsel,

his plea was not knowing, intelligent, and voluntary. He explains that he

was confused about the basis of his plea agreement and believed his

negotiated sentence was “based on the combination of all of the drugs.”

Appellant’s Brief at 9.5 Appellant insists he did not understand the terms of

his plea agreement and therefore his plea was unknowing. Id. at 11. Thus,

____________________________________________

4
We add that Appellant has proffered no evidence that the PCRA court relied
in any way upon the Commonwealth’s Exhibit 2 and therefore is unable to
demonstrate that the admission of that exhibit prejudiced the outcome of
the PCRA hearing. See Commonwealth v. Poplawski, 130 A.3d 697, 716
(Pa. 2015) (an error will be deemed harmless if “the error did not prejudice
the [Appellant] or the prejudice was de minimis”), cert. denied, 137 S. Ct.
89 (2016).
5
In Appellant’s Brief, at 9-10, Appellant’s counsel endeavors to make sense
of this, though he admits to little success:

[Appellant] described how he was under the impression that his
plea was to be based on the combination of all of the drugs
allegedly involved, and that instead he was sentenced on one set
of drugs by weight to five (5) to ten (10) years, with a
consecutive three (3) to ten (10) years for another set of drugs
by weight. (N.T. 3-4).FN 1
____________
FN 1
This line of reasoning continues to confuse counsel, who has
extensive experience with these issues, arguably lending
credence to the idea that [Appellant], with no formal legal
training, was also confused by the structure of his sentencing
scheme.

-8-
J-S03016-17

he claims that his counsel was ineffective in not fully explaining the sentence

before he entered the plea.

To obtain relief under the PCRA premised on a claim that counsel was

ineffective, a petitioner must demonstrate that: (1) the underlying claim is

of arguable merit; (2) counsel had no reasonable strategic basis for his or

her action or inaction; and (3) petitioner was prejudiced by counsel’s act or

omission. See Commonwealth v. Pierce, 527 A.2d 973, 975 (Pa. 1987).

If a petitioner fails to prove by a preponderance of the evidence any of the

Pierce prongs, the court need not address the remaining prongs.

Commonwealth v. Fitzgerald, 979 A.2d 908, 911 (Pa. Super. 2009),

appeal denied, 990 A.2d 727 (Pa. 2010). The right to effective assistance

of counsel extends to the plea process. Commonwealth v. Wah, 42 A.3d

335, 338-39 (Pa. Super. 2012); see also Commonwealth v. Allen, 833

A.2d 800, 801-02 (Pa. Super. 2003) (right to effective counsel applicable to

nolo contendere pleas as well), appeal denied, 860 A.2d 488 (Pa. 2004).

The PCRA court held that Appellant failed to plead and prove the third

prong — prejudice resulting from counsel’s failure to explain how his

sentence was calculated. A finding of “prejudice” requires the petitioner to

show “there is a reasonable probability that, but for the error of counsel, the

outcome of the proceeding would have been different.” Commonwealth v.

Stevens, 739 A.2d 507, 512 (Pa. 1999). Here, as the trial court explained,

Appellant says that he thought he was entering a nolo contendere plea to

-9-
J-S03016-17

multiple counts and would receive an aggregate sentence of 13-30 years’

confinement, and, in fact, Appellant did enter a nolo contendere plea to

multiple counts and receive an aggregate sentence of 13-30 years’

confinement. PCRA Ct. Op., 4/11/16, at 5; see also N.T., 12/2/15, at 4,

18, 46, 50, 56. Thus, any lack of an explanation by counsel regarding the

calculation of the 13-30 years did not affect Appellant’s aggregate sentence.

In addition, the trial court did “not find Defendant’s testimony credible that

had he known the alleged error, he would not have pled nolo contendere.”

PCRA Ct. Op., 4/11/16, at 5-6.

Upon careful review of the record, we conclude that the PCRA court’s

findings are supported by the evidence of record and its legal conclusions

are correct. See Hill, 149 A.3d at 364–65. Because Appellant failed prove

prejudice, he did not establish ineffective assistance of counsel. Accordingly,

we affirm the PCRA court’s order denying Appellant post-conviction relief.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/29/2017

- 10 -
J-S03016-17

- 11 -