J-S38028-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
HAGGON A. WAITE,
Appellant No. 1721 EDA 2016
Appeal from the PCRA Order May 26, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0016396-2008
BEFORE: GANTMAN, P.J., SHOGAN and FITZGERALD,* JJ.
MEMORANDUM BY SHOGAN, J.: FILED JULY 18, 2017
Haggon A. Waite (“Appellant”) appeals from the May 26, 2016 order
denying his petition for collateral relief filed pursuant to the Post Conviction
Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541–9546. We affirm.
The PCRA court set forth the background of this case in its opinion to
this Court.
On June 19, 2008, [Appellant] was arrested and charged
with inter alia[:] 1) Possession of an Instrument of Crime; 2)
Carrying a Firearm without a License; and, 3) Carrying a Firearm
in Public in Philadelphia.1 On August 14, 2012, [Appellant]
entered a negotiated plea of guilty to those charges.[1] The [trial
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*
Former Justice specially assigned to the Superior Court.
1
In exchange for Appellant’s guilty plea, the Commonwealth nol prossed
four charges: criminal use of a communication facility, criminal conspiracy,
(Footnote Continued Next Page)
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c]ourt proceeded to sentence [Appellant] that day in accordance
with his negotiated guilty plea agreement, to one and [one] half
years to six years confinement in a State Correctional Facility.
[Appellant did not file a direct appeal.]
1
18 Pa.C.S.A. 907(a); 18 Pa.C.S.A. 6106(a)(1); 18
Pa.C.S.A. 6108
On January 22, 2013, [Appellant] filed a pro se PCRA
petition pursuant to 42 Pa.C.S.A. §9541 et. seq. On December
4, 2013, Peter Alan Levin, Esq. was appointed as PCRA counsel.
On January 7, 2015, PCRA counsel filed an amended petition
which mirrored [Appellant’s] initial complaints. On February 11,
2016, the Commonwealth filed a Motion to Dismiss [Appellant’s]
amended PCRA petition. On April 14, 2016, this Court gave
notice of its intention to dismiss [Appellant’s] amended PCRA
petition, pursuant to Pennsylvania Rule of Criminal Procedure
907. On May 26, 2016, [Appellant’s] amended PCRA petition
was dismissed by the [c]ourt.
PCRA Court Opinion, 9/28/16, at 1–2. This appeal followed. Appellant and
the trial court complied with Pa.R.A.P. 1925.
On appeal, Appellant presents the following questions for our review:
I. Whether the court erred in not granting relief on the PCRA
petition alleging counsel was ineffective.
II. Whether the court erred in denying the Appellant’s PCRA
petition without an evidentiary hearing on the issues raised
in the amended PCRA petition regarding trial counsel’s
ineffectiveness.
Appellant’s Brief at 8 (reordered for ease of disposition).
When reviewing the propriety of an order denying PCRA relief,
this Court is limited to determining whether the evidence of record supports
_______________________
(Footnote Continued)
possession with intent to deliver marijuana, and possession of a controlled
substance. Commonwealth’s Motion to Dismiss, 2/11/16, at 1.
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the conclusions of the PCRA court and whether the ruling is free of
legal error. Commonwealth v. Robinson, 139 A.3d 178, 185 (Pa. 2016).
The PCRA court’s findings will not be disturbed unless there is no support for
them in the certified record. Commonwealth v. Lippert, 85 A.3d 1095,
1100 (Pa. Super. 2014).
Appellant claims he received ineffective assistance of counsel (“IAC”).
In resolving questions of counsel’s effectiveness, we begin with the
presumption that counsel rendered effective assistance. Commonwealth
v. Bomar, 104 A.3d 1179, 1188 (Pa. 2014). To overcome that
presumption, the petitioner must establish: “(1) the underlying claim has
arguable merit; (2) no reasonable basis existed for counsel’s action or failure
to act; and (3) the petitioner suffered prejudice as a result of counsel’s
error, with prejudice measured by whether there is a reasonable probability
that the result of the proceeding would have been different.” Id. (citation
omitted). If the petitioner fails to prove any of these prongs, the
claim is subject to dismissal. Id.
Appellant asserts:2
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2
To the extent Appellant directly challenges the denial of his pretrial
motions and the adequacy of the trial court’s plea colloquy, we decline to
review his arguments because they are outside the scope of the IAC claim
raised in Appellant’s PCRA petition. Appellant’s Brief at 15–19; 42 Pa.C.S. §
9543(a)(2)(i–viii).
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[T]rial counsel’s ineffectiveness and coercive actions played a
large role in the unlawful inducement of the Appellant’s guilty
plea. Counsel never insured that Appellant was given a proper
colloquy prior to entering the plea concerning not being able to
appeal the suppression motion or to bring up the violation of the
speedy trial rule.
Appellant’s Brief at 20.3 Appellant further claims, “[T]here was no
reasonable basis to justify any type of inducement or coercive nature on the
part of trial counsel to insist that the Appellant plead guilty where the
pretrial rulings could have been successfully appealed.” Id. Lastly,
Appellant contends, “[T]here is a clear showing of actual prejudice. . . . Had
the Appellant been able to try the matter before the jury, a decision of
innocence may have been arguably been [sic] found[.]” Id.
After reviewing the relevant law, the PCRA court disposed of
Appellant’s IAC claim as follows:
[Appellant] essentially argues that his guilty pleas were
unlawfully induced because trial counsel was ineffective in
apprising him of certain appellate rights he was waiving in
pleading guilty. The crux of [Appellant’s] argument regarding
this claim is that his counsel failed to properly advise him that he
would lose the right to appeal pre-trial rulings, and as such acted
to unlawfully induce [Appellant’s] guilty pleas. This claim is
without merit as these rights were made clear to [Appellant]
during the colloquy process.
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3
We note that Appellant’s suppression-based argument was not raised in
his pro se or counseled PCRA petitions. Therefore, it is waived. See
Commonwealth v. Reid, 99 A.3d 470, 494 (Pa. 2014) (citing
Commonwealth v. Santiago, 855 A.2d 682, 691 (Pa. 2004) (claim not
raised in PCRA petition cannot be raised for the first time on appeal, and is
“indisputably waived”)).
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[Appellant’s] Written Guilty Plea Colloquy clearly states “If
I already had a hearing on pre-trial motions, when I plead guilty,
I give up my right to appeal the decisions on those motions.” At
the bottom of the written colloquy, it reads “I have read all of
the above, or my lawyer read it to me. I understand it. My
answers are all true and correct.” [Appellant] had ample
opportunity to review the document with counsel before signing
it, and did, in fact, sign it after such a review. (N.T., 8/14/2012
pg. 3–4). The [c]ourt also afforded [Appellant] sufficient
opportunity to ask any questions, either to the [c]ourt or to his
counsel, if any areas of his negotiated guilty plea were unclear or
not understood. (N.T., 8/14/2012 pg. 11–12)
. . . [R]eviewing courts analyze the validity of a guilty plea
by the totality of its circumstances. In using this standard, it is
clear that [Appellant’s] negotiated guilty plea was entered into
knowingly, intelligently, and voluntarily. Prior to accepting his
pleas, the [c]ourt explained [Appellant’s] remaining appellate
rights, stating that he would “lose some, but not all” of his
appellate rights.
* * *
Indeed, all of the elements required during the colloquy process
were present at [Appellant’s] Negotiated Guilty Plea Hearing.
(N.T., 8/14/2012 pg. 4, 13, 17) Prior to accepting his negotiated
pleas, the [c]ourt asked [Appellant] if there was anything
explained to him which he did not understand, or if he had any
questions for the [c]ourt, to which [Appellant] replied “No, Your
Honor.” The [c]ourt asked [Appellant] if he had any questions
for defense counsel, to which [Appellant] replied, “Nothing, Your
Honor.” The [c]ourt concluded that [Appellant] had “made
knowing, intelligent, voluntary pleas of guilty.” (N.T., 8/14/2012
pg. 11–12) [Appellant] was not threatened or convinced to
enter his guilty plea, and he did so with a full understanding of
its consequences. (N.T., 8/14/2012 pg. 4, 8–9) Thus,
[Appellant] knowingly, intelligently, and voluntarily entered into
his negotiated guilty pleas.
Trial Court Opinion, 9/28/16, at 5–7.
Our review of the certified record reveals that it includes Appellant’s
written guilty plea colloquy in which he affirmed that, by pleading guilty, he
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was giving up his speedy trial right. Written Guilty Plea Colloquy, 8/14/12,
at 2. However, the certified record does not include the notes of testimony
from Appellant’s guilty plea hearing. It is the responsibility of Appellant to
ensure all necessary transcripts are included in the certified record. See
Pa.R.A.P. 1911(a) (“The appellant shall request any transcript required
under this chapter . . .”). Without those notes, we are unable to review
whether the trial court provided Appellant with an adequate colloquy
regarding the waiver of his rights. See Commonwealth v. Houck, 102
A.3d 443, 456–457 (Pa. Super. 2014) (instructing where appellant has not
made transcript of proceedings at issue part of certified record, any claims
that cannot be resolved in absence of necessary transcript must be deemed
waived). Thus, we agree with the PCRA court that Appellant’s underlying
argument—that trial counsel was ineffective for failing to advise Appellant
regarding the waiver of his rights—lacks merit.
Additionally, Appellant challenges the denial of his request for an
evidentiary hearing. We repeat:
[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.
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Commonwealth v. Miller, 102 A.3d 988, 992 (Pa. Super. 2014) (citation
omitted).
The sole claim Appellant raised in his pro se and amended PCRA
petitions was trial counsel’s ineffectiveness in failing to advise Appellant that,
by pleading guilty, he waived his right to challenge the speedy trial rule.
Motion for Post Conviction Collateral Relief, 1/22/13, at ¶¶ 4, 5; Amended
Petition, 1/7/16, at ¶¶ 8–9. Upon review of the record, we agree with the
PCRA court that Appellant’s claim has no support either in the record or
other evidence; therefore, there are no genuine issues of material fact in
controversy. Miller, 102 A.3d at 992. Consequently, we discern no abuse
of the PCRA court’s discretion in denying Appellant relief without conducting
an evidentiary hearing.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/18/2017
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