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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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. :
:
MICHAEL DAVON CRADDOCK, : No. 2001 MDA 2016
:
Appellant :
Appeal from the PCRA Order, November 22, 2016,
in the Court of Common Pleas of Dauphin County
Criminal Division at Nos. CP-22-CR-0000145-2013,
CP-22-CR-0003903-2013, CP-22-CR-0004206-2013,
CP-22-CR-0004814-2013, CP-22-CR-0005935-2012
BEFORE: OLSON, J., MOULTON, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED AUGUST 29, 2017
Michael Davon Craddock appeals from the November 22, 2016 order
that dismissed his petition filed pursuant to the Post Conviction Relief Act
(“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. After careful review, we affirm.
Appellant pled nolo contendere to charges at five docket numbers as
part of a negotiated plea. At CP-22-CR-0005935-2012, appellant was
charged with manufacturing, delivering, or possessing with intent to
manufacture or deliver drugs and was sentenced to a term of imprisonment
of two to four years.1 Additionally, he was charged with recklessly
endangering another person, using or possessing drug paraphernalia, driving
1
35 P.S. § 780-113(a)(30).
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while his operating privilege was suspended or revoked, turning movements
and required signals.2 He received no further penalty for these charges.
At CP-22-CR-0000145-2013, appellant was charged with three counts
of manufacturing, delivering, or possessing with intent to manufacture or
deliver drugs and was sentenced to a term of five to ten years’
imprisonment on each count to be served concurrently. He also was
charged with criminal use of a communication facility3 but received no
further penalty.
At CP-22-CR-0003903-2013, appellant was charged with two counts of
robbery, immediate threat of serious bodily injury; two counts of conspiracy;
possession of a firearm prohibited; firearms not to be carried without a
license; four counts of simple assault; recklessly endangering another
person; and making terroristic threats with the intent to terrorize another
person.4 He received three years’ concurrent probation for the robbery
charges and possession of a firearm prohibited and no further penalty on the
other charges.
At CP-22-CR-0004206-2013, appellant was charged with
manufacturing, delivering, or possessing with intent to manufacture or
2
18 Pa.C.S.A. § 2705, 35 P.S. § 780-113(a)(32), 75 Pa.C.S.A. § 1543(a),
and 75 Pa.C.S.A. § 3334(a), respectively.
3
18 Pa.C.S.A. § 7512(a).
4
18 Pa.C.S.A. §§ 3701(a)(1)(i), 903, 6105(a)(1), 6106(a)(1), 2701(a)(1),
2705, and 2706(a)(1), respectively.
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deliver drugs and received a sentence of three years’ probation concurrent
with his other probationary sentences. He was also charged with the use or
possession of drug paraphernalia, two counts of possession of a firearm
prohibited, and receiving stolen property, 18 Pa.C.S.A. § 3925(a). He
received no further penalty for these convictions.
At CP-22-CR-0004814-2013, appellant was charged with
manufacturing, delivering, or possessing with intent to manufacture or
deliver drugs and received a sentence of three years’ probation concurrent
with his other probationary sentences. He was also charged with conspiracy
and received no further penalty. In total, appellant received an aggregate
sentence of seven to fourteen years’ imprisonment to be followed by
three years’ probation. Appellant received his sentence on June 1, 2015.5
On February 24, 2016, appellant moved for relief pursuant to the
PCRA.6 His petition focused on his contention that his trial counsel,
Gary Kelley, Esq. (“Attorney Kelley”), was ineffective in that he did not file
any motions for suppression or other pre-trial motions and filed for
continuances without the knowledge or consent of appellant.
On March 23, 2016, Christopher F. Wilson, Esq. (“Attorney Wilson”),
was appointed to represent appellant. On July 13, 2016, appellant
5
Appellant also pled nolo contendere to summary traffic offenses. That
docket number is not at issue here.
6
Appellant did not file a direct appeal.
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requested an evidentiary hearing and stated that due to Attorney Kelley’s
ineffectiveness, appellant entered a plea that was not knowing, voluntary,
and intelligently made. Appellant specifically claimed that Attorney Kelley
did not adequately communicate with him prior to his plea date. Because
appellant did not believe that Attorney Kelley was ready to defend him,
appellant alleged that he entered the plea of nolo contendere. Appellant
also alleged that he was unaware of the guideline sentences for the charges
before he entered a plea.
The trial court conducted a hearing on November 21, 2016. The trial
court summarized the testimony presented at the hearing:
At the PCRA hearing, Chief Deputy District
Attorney Jennifer Gettle testified for the
Commonwealth. Attorney Gettle testified that
Attorney Gary Kelley asked her to sit down with him
and [appellant] to discuss plea negotiations. At such
meeting, Attorney Gettle recalled that [appellant]
had many family circumstances and spoke with
[Gettle] about what he had been doing to change his
ways while he was in prison. The meeting was
mostly [appellant] attempting to highlight mitigating
circumstances regarding his case. Attorney Gettle
also recalled that [appellant] had been represented
by both Attorney Kell[e]y and prior counsel,
Attorney Brian Perry, and [appellant] claimed the
case had been continued many times without
[appellant’s] blessing. Attorney Gettle confirmed
that [appellant] was ultimately offered a sentence of
7 to 14 years of imprisonment followed by 3 years of
probation; she testified that this would be much less
than what [appellant] could have received if found
guilty at trial. Specifically, Attorney Gettle noted
that one of his drug offenses was in the 42 to
60 month standard range, his robbery offense (just
on count 1) had a standard range of 30 to
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42 months, and another drug offense with a 24 to
50 month range. There was only so much
Attorney Gettle could do with the robbery, given the
circumstances.
Attorney Gary Kelley testified next. He stated
that it was his understanding that he had been
retained for the purpose of negotiating a plea, and
that he was seeking to reach a global resolution that
was acceptable to [appellant]. Attorney Kelley’s
recollection was that [appellant] was looking for a
plea, did not prefer to go to trial, and that is what
ultimately brought them to their meeting with
Attorney Gettle. Attorney Kelley specifically stated
that he could have tried any of the dockets had
[appellant] wanted to proceed, but his instructions
were to resolve this case via a negotiated plea. It
did not make sense to try the case if a negotiated
plea is directed and a meeting is set up [with] the
DA. Attorney Kelley also testified that he has
proposed jury instructions ready to go in all of his
cases. When this [c]ourt asked Attorney Kell[e]y if
there was any point in time where [appellant]
professed his innocence and wanted to take any of
the dockets [to] trial, the answer was no.
Attorney Kelley also had concerns about [appellant]
making incriminating statements. He testified that
[appellant] was a prolific writer and there were one
or two letters where statements were made against
his interest. Attorney Kelley encouraged him not to
write to the DA, but he continued to write and make
such statements. Attorney Kelley also testified that
he met with [appellant] regularly, numerous times
per month. Finally, Attorney Kelley attested that he
and [appellant] reviewed the sentencing guidelines
and he had concerns over the terrible facts of the
case, particularly the robbery. [Appellant] had been
picked out of a lineup, had forced a woman to strip,
and pistol-whipped another woman. These are facts
that Attorney Kelley did not want before a jury.
[Appellant] took the stand as the last witness
at the PCRA hearing. [Appellant] stated that his
meetings with Attorney Kelley were sporadic and
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inconsistent, claiming that he only met with him
three or four times. [Appellant] attested that he told
Attorney Kelley that he would plead [on] the
“4206” docket number, but did not wish to plead on
the remaining charges. He said that Attorney Kelley
was completely unprepared, with no defense
strategy, no witnesses, no pre-trial motions, or
motions to suppress. When asked if Attorney Kelley
went over the colloquy forms with him, [appellant]
answered “yes.”[Footnote 1] When asked why he
ended up pleading no contest to all dockets,
[appellant] claimed that he felt like he wasn’t guilty
of all the charges, but knew he would get convicted
because of the evidence.
[Footnote 1]: A review of the Nolo
Contendere Plea and Sentencing
Transcript reveals that [appellant]
understood the no-contest plea to all
six dockets for a sentencing term of 7 to
14 years followed by 3 years of
probation, that he understood the
charges, penalties, gave up his right to a
jury trial, and that his plea was knowing,
voluntary and intelligent.
Trial court opinion, 3/29/17 at 3-5 (citations to record omitted).
By order dated November 22, 2016, the trial court denied the PCRA
petition. The trial court determined:
A review of the record and testimony indicates
to this [c]ourt that [appellant] has not demonstrated
that counsel’s stewardship was deficient in that it
resulted in a manifest injustice. The record does not
support the claim that counsel facilitated the entry of
an unknowing, involuntary, or unintelligent plea.
While there were conflicts in testimony at the PCRA
hearing, Attorney Kelley reviewed the colloquy forms
with [appellant], met with [appellant] several times
regarding his case, facilitated a meeting with Chief
Deputy District Attorney Jennifer Gettle for purposes
of negotiating a plea, was aware of the sentencing
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guidelines, and was aware of the seriousness of the
facts and charges. [Appellant] has not successfully
rebutted the presumption of professional
competence. There is no clear evidence that his
ineffective assistance claims have merit. Moreover,
the conduct pursued by Attorney Kelley had a
reasonable basis designed to effectuate [appellant’s]
interests. A tactical decision was made to negotiate
a plea as opposed to risking a much greater
sentence in light of the facts, particularly
surrounding the robbery. This [c]ourt’s
pronouncement dismissing [appellant’s] PCRA
petition is supported by the record. Therefore, such
decision should be affirmed.
Id. at 5 (citations omitted).
Appellant raises the following issue on appeal: “Whether the PCRA
[c]ourt erred by concluding that the plea counsel was not ineffective, and in
the failure to find that the [a]ppellant’s nolle [sic] contendere pleas on the
multiple dockets were not voluntary.” (Appellant’s brief at 3.)
PCRA petitions are subject to the following standard of review:
“[A]s a general proposition, we review a denial of
PCRA relief to determine whether the findings of the
PCRA court are supported by the record and free of
legal error.” Commonwealth v. Dennis, 609 Pa.
442, 17 A.3d 297, 301 (Pa. 2011) (citation omitted).
A PCRA court’s credibility findings are to be accorded
great deference, and where supported by the record,
such determinations are binding on a reviewing
court. Id. at 305 (citations omitted). To obtain
PCRA relief, appellant must plead and prove by a
preponderance of the evidence: (1) his conviction or
sentence resulted from one or more of the errors
enumerated in 42 Pa.C.S. § 9543(a)(2); (2) his
claims have not been previously litigated or waived,
id. § 9543(a)(3); and (3) “the failure to litigate the
issue prior to or during trial . . . or on direct appeal
could not have been the result of any rational,
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strategic or tactical decision by counsel[.]” Id.
§ 9543(a)(4). An issue is previously litigated if “the
highest appellate court in which [appellant] could
have had review as a matter of right has ruled on
the merits of the issue[.]” Id. § 9544(a)(2). “[A]n
issue is waived if [appellant] could have raised it but
failed to so before trial, at trial, . . . on appeal or in a
prior state postconviction proceeding.” Id.
§ 9544(b).
Commonwealth v. Treiber, 121 A.3d 435, 444 (Pa. 2015).
Instantly, all of appellant’s claims challenge the effectiveness of
counsel. To prevail on a claim of ineffective assistance of counsel under the
PCRA, a petitioner must plead and prove by a preponderance of the evidence
that counsel’s ineffectiveness “so undermined the truth-determining process
that no reliable adjudication of guilt or innocence could have taken place.”
42 Pa.C.S.A. § 9543(a)(2)(ii). Specifically, a petitioner must establish that
“the underlying claim has arguable merit; second, that counsel had no
reasonable basis for his action or inaction; and third, that Appellant was
prejudiced.” Commonwealth v. Charleston, 94 A.3d 1012, 1020
(Pa.Super. 2014), appeal denied, 104 A.3d 523 (Pa. 2014) (citation
omitted). “[C]ounsel is presumed to be effective and the burden of
demonstrating ineffectiveness rests on appellant.” Commonwealth v.
Ousley, 21 A.3d 1238, 1242 (Pa.Super. 2011), appeal denied, 30 A.3d
487 (Pa. 2011) (citation omitted). Additionally, we note that “counsel
cannot be held ineffective for failing to pursue a meritless claim[.]”
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Commonwealth v. Hall, 867 A.2d 619, 632 (Pa.Super. 2005), appeal
denied, 895 A.2d 549 (Pa. 2006).
“On appeal from the denial of PCRA relief, our
standard of review is whether the findings of the
PCRA court are supported by the record and free of
legal error.” Commonwealth v. Abu-Jamal, 574
Pa. 724, 731, 833 A.2d 719, 723 (2003). We review
allegations of counsel’s ineffectiveness in connection
with a guilty plea under the following standards:
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,
see generally Commonwealth v.
Kimball, 555 Pa. 299, 312, 724 A.2d
326, 333 (1999), 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. See,
e.g., [Commonwealth v.] Allen, 557
Pa. [135,] 144, 732 A.2d [582,] 587
[(1999)] (“Allegations of ineffectiveness
in connection with the entry of a guilty
plea will serve as a basis for relief only if
the ineffectiveness caused appellant to
enter an involuntary or unknowing
plea.”). . . .
Commonwealth v. Flanagan, 578 Pa. 587,
608-09, 854 A.2d 489, 502 (2004). This standard is
equivalent to the “manifest injustice” standard
applicable to all post-sentence motions to withdraw a
guilty plea. Commonwealth v. Watson, 835 A.2d
786 (Pa.Super. 2003).
Commonwealth v. Morrison, 878 A.2d 102, 104-105 (Pa.Super. 2005),
appeal denied, 887 A.2d 1241 (Pa. 2005).
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“Preliminarily, we note that in terms of its effect upon a case, a plea of
nolo contendere is treated the same as a guilty plea.” Commonwealth v.
Leidig, 850 A.2d 743, 745 (Pa.Super. 2004), citing Commonwealth v.
Miller, 748 A.2d 733, 735 (Pa.Super. 2000). “In determining whether a
plea was voluntarily entered into, an examination of the totality of the
circumstances is warranted.” Commonwealth v. Allen, 732 A.2d 582,
588-589 (Pa. 1999).
We find Commonwealth v. Barbosa, 819 A.2d 81 (Pa.Super. 2003),
to be instructive because the instant case, like Barbosa, involves a
negotiated plea agreement with regards to sentencing. (Notes of testimony,
1/28/14 at 12; appellant’s brief at 4.) The Barbosa court held,
that if a defendant who entered a negotiated guilty
plea was either misinformed or not informed as to
the maximum possible sentence he could receive if
he went to trial, and the misinformation or lack
of information was material to his decision to
accept the negotiated plea, then manifest
injustice is established and the plea may be
withdrawn.
Barbosa, 819 A.2d at 82 (emphasis added). The court also held that a
failure to notify a defendant of the possible maximum sentence in a
negotiated plea agreement case would only be considered grounds to
withdraw the plea if the defendant’s lack of knowledge as to the maximum
sentence played a material role in the defendant’s decision to accept the
plea. Id. at 86.
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Initially, appellant contends that due to the ineffective assistance of
his counsel, he entered a plea for all the dockets that was not knowing or
voluntary. On June 1, 2015, appellant executed the guilty plea colloquy and
indicated “yes” when asked on the form whether he understood the nature
of the charges against him and the maximum penalties for those charges.
Appellant also indicated “yes” when asked whether he had discussed the
case and the elements of the crimes with his attorney and whether he was
satisfied with his attorney’s representation. (Guilty plea colloquy, 6/1/15
at 4, ¶¶ 9-11.) Similarly, at his plea hearing, appellant answered “yes”
when asked whether he understood the potential penalties for the crimes for
which he had been charged, that he understood everything in the plea
colloquy and reviewed them with his attorney. (Notes of testimony, 6/1/15
at 3.)
Appellant testified at the PCRA hearing that he discussed suppression
motions and potential witnesses to subpoena, but Attorney Kelley failed to
move in these directions. (Notes of testimony, 11/12/16 at 62-63.)
Appellant testified that Attorney Kelley was unprepared. Consequently,
appellant believed he would have lost had he gone to trial. He denied that
Attorney Kelley went over the plea colloquy forms with him before he signed
them. (Id. at 64-65.) On cross-examination, appellant had difficulty
identifying what issues and defenses that he wanted Attorney Kelley to raise.
(Id. at 75.)
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Attorney Kelley testified that appellant hired him for the purpose of
negotiating a plea, and Attorney Kelley sought a global resolution to the
various charges. (Id. at 24.) Attorney Kelley testified that he saw no need
for any motions in limine. (Id. at 28.) Attorney Kelley explained that he
did not subpoena any witnesses or discuss any trial strategy with appellant
because he and appellant were not planning to try any of the cases. (Id. at
43-45.) On cross-examination, Attorney Kelley stated that he met with
appellant at least every two weeks. He also testified that he reviewed the
sentencing guidelines with appellant for the charges he faced. (Id. at
50-51.) He also advised appellant that the robbery charge was potentially
devastating because he had been picked out of a lineup, had forced a
woman to strip, and had pistol whipped another woman. He advised
appellant that those were “terrible facts.” (Id. at 51.)
The trial court credited Attorney Kelley’s testimony that he reviewed
the colloquy forms with appellant, met with appellant several times
regarding the case, facilitated a meeting with the Chief Deputy District
Attorney to discuss a plea, was aware of the sentencing guidelines, and the
seriousness of the facts and charges.
“A PCRA court’s credibility findings are to be accorded great deference.
Indeed, where the record supports the PCRA court’s credibility
determinations, such determinations are binding on a reviewing court.”
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Commonwealth v. Dennis, 17 A.3d 297, 305 (Pa. 2011) (citations
omitted.)
Given these credibility determinations, this court agrees with the PCRA
court that the record does not support the claim that appellant’s plea was
not knowing, intelligent, or voluntary due to the ineffectiveness of counsel.
The colloquy as well as Attorney Kelley’s testimony establish that appellant
was aware of the potential penalties he faced. Further, Attorney Kelley
explained the tactical reasons why he did not subpoena witnesses and his
legal determination that pre-trial motions were unnecessary. Additionally,
Chief Deputy District Attorney Gettle explained that appellant could have
received a much harsher penalty had he gone to trial on the various cases.
Appellant failed to satisfy the first prong of Pierce: that his underlying
claim was of arguable merit.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/29/2017
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