J-S60002-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
VERNON JERMELLE VEREEN,
Appellant No. 1668 WDA 2016
Appeal from the PCRA Order October 25, 2016
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0013527-2014
BEFORE: OLSON, J., DUBOW, J., and STEVENS, P.J.E.*
JUDGMENT ORDER BY OLSON, J.: FILED NOVEMBER 14, 2017
Appellant, Vernon Jermelle Vereen, appeals from an order entered on
October 25, 2016 that denied his petition filed pursuant to the Post
Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.
On November 4, 2015, Appellant pled guilty to one count of
unauthorized use of a motor vehicle, 18 Pa.C.S.A. § 3928(a). On the same
day, the trial court sentenced him to a two-year period of probation and
ordered him to pay restitution and participate in drug and alcohol treatment.
The PCRA court provided the following summary of the ensuing
procedural facts.
On November 10, 2015, [Appellant] submitted a pro se motion
to withdraw his guilty plea. The court forwarded the pro se
pleading to [plea counsel]. On February 26, 2016, [plea
counsel] sought leave to withdraw from the case, and his
request was granted that same day. The Office of the Public
Defender was appointed to represent [Appellant] in any post-
*Former Justice specially assigned to the Superior Court.
J-S60002-17
conviction matters. On August 24, 2016, PCRA [c]ounsel filed
an[a]mended PCRA [p]etition claiming that [plea counsel]
provided ineffective assistance of counsel because he failed to
file a post-sentence motion seeking to withdraw [Appellant’s]
plea. The petition alternatively claimed that he provided
ineffective assistance by failing to withdraw from representation
earlier so that another attorney could file a timely post-sentence
motion. PCRA [c]ounsel additionally claimed that [plea counsel]
provided ineffective assistance of counsel because he caused
[Appellant] to enter into a plea that was not intelligently,
knowingly, or voluntarily made. On October 5, 2016, the
Commonwealth filed its [a]nswer to the PCRA [p]etition agreeing
that an evidentiary hearing was warranted based on the nature
of the claims. A PCRA Hearing was subsequently held on
October 26, 2016. After considering the testimony and
arguments presented at the hearing, as well as the evidence of
record, the [PCRA] court found no merit to [Appellant’s] claims,
and [] denied his PCRA [petition] that same day. This timely
appeal followed.
PCRA Court Opinion, 2/22/17, at 2.
Appellant raises the following issues, which he preserved in a timely
concise statement filed on November 28, 2016 pursuant to Pa.R.A.P.
1925(b).
Did the [PCRA] court err when it failed to find [plea counsel]
ineffective for not filing a post-sentence motion to withdraw
[Appellant’s] guilty plea or seeking to withdraw his
representation so another counsel could timely file said motion?
Did the [PCRA] court err and/or abuse its discretion when it
failed to find [plea counsel] ineffective because he was not
adequately prepared to take [Appellant’s] case to trial, which
caused [Appellant] to enter a guilty plea that was not
intelligently, knowingly, and voluntarily made?
Appellant’s Brief at 4.
We have carefully reviewed the certified record, the submissions of the
parties, and the opinion of the PCRA court. Based upon our review, we
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J-S60002-17
conclude that the court adequately and accurately addressed the issues
raised on appeal. See PCRA Court Opinion, 2/22/17, at 2-12. Accordingly,
we affirm for the reasons expressed by the PCRA court and adopt its opinion
as our own. The parties are instructed to include a copy of the PCRA court’s
opinion with all future filings relating to our disposition in this appeal.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/14/2017
-3-
Circulated 10/23/2017 01:31 PM
(N THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY,
PENNSYLVANIA
COMMONWEALTH OF PENNSYLVANIA,CRIMINAL DIVISION
vs, CC No, 2014-13527
VERNON JERMELL-E VEREEN,
Defendant.
OPINION
This is an appeal from an Order entered on October
26, 2016, denying the Defendant's Amended Petition under
the Post-Conviction Relief Act ("PCRA"), The Defendant
originally had been charged with Receiving Stolen Property
(18 Pa. C.S.A 53925), Registration and Certificate of
Titte Required (75 Pa. C.S.A. §1 301), Operation of
Vehicle without Official Certificate (75 Pa. C.S.A.
§4703(a)), and Failure to Obtain Emission Certification
(75 Pa. C.S.A„ §4706(c)(5)). On November 4, 2015, the
Defendant pled guillY to one (1) count of Unauthorized
IJs;c or a Motor Vehicle (18 Pa.
C.S,A. S3928(a)). Ali other charges were withdrawn. The
Defendant was sentenced that same day to a two (2) year
period ot probation, and he was ordered to pay restitution
in the amount of $2,095 to He;tz Vehicle. The Defendant
also was ordered to participate in drug and alcohol
treatment.
On November 10, 2015, the Defendant submitted a pro
se motion to withdraw his guilty plea. The f0Nvarded
the pro se pleading to his attorney, Patrick J.
Thomassey. On Februaty 26, 201 6, Attorney Thomassey
sought leave to withdraw from the case, and his request
was granted that same day. The Office of the Public
Defender was appointed to represent the Deféndànt in any
post-conviction matters. C)ñ
August 24, 20] 6, PCFRA Counsel tiled an Amended PCRA
Petition Claiming that
Allorney Thomassey provided ineffective assistance of counsel
because he failed to filo a post-sentence motion seeking to
withdraw the Defendant's plea. (Amended PCFRA Petition,
8/24/16i, p. 6) The petition alternatively claimed that he
provided ineffective assistance by failing to withdraw from
representation earlier so that another attorney could tiEe a
timely post-sentence motion. ('d.)i PCRA Counsel additionally
claimed that Attorney Thomassey provided ineffective assistance
of counsel because he caused the Defendant to enter into a plea
that was not intelligently, knowingly, or voluntarily made,
(Id.). On October 5, 2016, the Commonwealth filed its Answer to
the PCRA Petition agreeing that an evidentiary hearing was
warranted based on the nature of the claims. (Commonwealth's
Answer to PCRA Petition, 10/5/16, pp. 4-5). A PCRA Hearing was
subsequently held on October 26, 2016. After considering the
testimony and arguments presented at the hearing, as wall as
the evidence of record, the court found no merit to tho
Defendant's claims, and it denied his PCFRA that same day. This
timely appeal followed.
On November 28, 2016, the Defendant tiled a timely
Concise Statement of Errors
Complained of on Appeal ("Concise SfaÈement"), raising two
(2) issues for review:
a. The Trial Court erred and/or abused its discretion
when it failed to find Attorney Thomassey ineffective
for failing to file a post"sentence tnotion ta
withdraw Mr. Vereen's guilty plea or failing to seek
to withdraw.hig representation so another counsel
cauld file said motion before the time to do so
expired, These omissions deprived Mr. Vereeti the
assistance of counsel under the Sixth Amendment of the
United States Constitution and Article 1, Section 9 of
the Pennsylvania Constitution,
b, The Trial Court erred and/or abused its discretion
when it failed to find Attorney Thomassey ineffective
because he was not adequately prepared to take Mr.
Vereen's case to trial. Attorney Thomassey l s
inactions caused Mr. Verecn to enter a guilty plea
that was not intelligently, knowingly and voluntarily
made. Accordinglyt Mr. Vereen was deprived the
assistance of counsel under the Sixth Amendment {'f
the United States; Constitution and Article I ,
Section g of the Pennsylvanta Constitution.
(Concise Statement, pp. 2-3). The Defendants allegations
of error on appeal are without merit, Respectfully, this
courts October 26, 2016 Order denying the
Defendant's Amended PCRA petition should be upheld for the
reasons that follow.
). DISCUSSION
A. This court did not abuse its discretion by
refusing to find that Mr Thomassey provided
ineffective assistance of counsel by not filing
a post-sentence motion and/or by not seeking to
withdraw from the case earlier so that another
attorney could file a timely post-sentence
motion.
"[Tlho standard 01 review regarding an order denying a
petition under the PCIRA is whether the determination of the
PCRA COUlt is supported by [he evidence of record
and is free of legal error." Commonwealth v. Turetsky, 925
A.2d 876, 879 (Pa. Super 2007) (citing Commonweath v. 870
A.2d 795, 799 (Pa. 2005)). "The court's scope 01 review is
hrnitad to the findings al the PCIRA court and the evidence
on the
3
record of the PCRA court's hearing, viewed in the light
most favorable to the prevailing
party.": Commonwealth v. Duffy, gg9 A.2d 56, (Pa. 2005). "The
PCRA court's findings will not be disturbed unless there is
no support for the findings in the certified record."
TuretskY;, supra, at 879 (citing Commonwealth v. Carr, 768
A.2d 164, 1 166
(Pa. Super. 2001).
It is well-settled that, in order to "prevail on a
claim alleging counsel's ineffectiveness under the PCHA,
la defendant] must demonstrate (1 ) that the undertying
l
claim is of arguable merit; (2) that counsel s course of
conduct was without a reasonable basis designed to
effectuate his client's interest; and (3) that he was
prejudiced by counsel's ineffectiveness, i.e. there is a
reasonable probability that but for the act or omission in
question the outcome of the proceeding would have been
different.'
Commonwealth v. Bracey, 795 A.2d 935, 942 (Pa. 2001)
(internal citations omitted). "A reasonable, probability
is a probability that js sufficient to undermine
confidence in the outcome of the proceeding." Commonwealth
v. Spotz, 84 A.3d 294, 312 (Pa. 2014) (quoting
Çommonweafth v. Ali, 10 A.3d 282, 291 (Pa. 2010)). The
burden is on the defendant to prove atl three (3) prongs
01 tho test by a preponderance of the evidence. Turetskyj
sup/QQl at 880. "Where il is clear that a [defendantl has
failed to meet any of the three, distinct prongs of the
test, the claim may be disposed of on that basis 011e,
without a determination of whether the other two prongs
have been met."
al
Commonwealth v. Steele, 961 A.2d 786, 797 (Pa. 2008),
4
As noted, the Defendant first claims that this court
erred and/or abused its discretion when it failed to find that
Attorney Thomassey provided ineffective assistance "for
failing to file a post-sentence motion to withdraw" his plea
or for failing to withdraw from the case so that another
attorney could file a timely post sentence motion.
(Concise Statement, pp.2-3), The Defendant's first
allegation of error must fail because hÕ cannot prove that
he suffered actual prejudice from Attorney Thornasscy•Š
failure 10 file a post-sentence motion iri this case.
As an initial matter, the court notes that PCRA Counsel
attempted to argue at the
PCRA Hearing that Attorney Thomassey provided per se
ineffective assistance of counsel by failing to file a
post„sentence motion. (PCRA Hearing Transcript ("HT")
10/25/16i p, 26), However, the decision in Commonwealth v.
Reaves, 923 A.2d 1 i 19,
1 23 (Pa. 2007) forecloses the argument that the failure to
file a post-sentence motion constitutes per se ineffective
assistance of counsel. In Reaves, our Supreme Court explained
that a defendant c}aiming ineffective assistance of counsel on
the grounds that his counsel railed to file a post-sentence
motion must prove actual prejudice in accordance with
Strickland v, Washington, 466 U.S. 668 (1984) and Commonwealth
v. Pierce, 527 A.2d 973 (Pa. 1987). The Court explained that,
unlike a situation where counsel failed to preserv•e a
defendant's right to a direct appeal, the failure to lile al'
optional past-sentence motion does not comple\ely foreclose
appellate review, but rather "narrows the ambit" of the claims
that could be raised on direct appeal. Reaves, supãd, at 1
128-29. Therefore, the proper test for determining whether
counsel provided ineffective assistance in the context of
fai}ing to fi*e a post-sentence motion is the
traditional three-prong test outlined in Strickland v.
Washington, supra, and supra, which
requires a showing of actual prejudice. Id. at
1 1 29.
The Defendant cannot Show that he suffered actuat
prejudice from not having a counseled posfrsentenc,e motion
filed seeking to withdraw his guilty plea, The
Defendant's pro se motion to withdraw his submitted less
than a week after his plea hearing, was mainly based on a
claim of actual innocence for a crime to whith he
did not even plead guilty. (Prose Motion with Withdraw Guilty Plea, 11/10/15, i1i112,
14, 15), The Defendant was not challenging the
reasonableness of his sentence, nor was he challenging the
weight or sufficiency of evidence supporting his conviction
under 18 Pa. C.S.A. §3928.(a). The sole form of relief
requested was the withdrawal ot his plea based on a blanket
assertion of innocence, and this court is beyond confident
that any counseled motion seeking to withdraw his guilty
plea would have been denied without hesitation because the
Defendant would have been unable to show manifest
injustice. See Cornmanwoallh 24 A.3d 1044, 1046
(Pa. Super. 201 i ) ("IA] defendant who altempts to
withdraw a guilty plea after sentencing must demonstrate
prejudice on the order of manifest injustice before
withdrawal is justified. A showing of manifest injustice
may be established if the piea was entered into
involuntarily, unknowingly, or unintelligently.")
This court conducted a thorough plea coiJoquy with.
the Defendant at the time of his plea and sentencing,
and for the reasons set forth in Section of this
Opinion, the Defendant's decision to plead guilty was
intelligently, knowingly, and voluntarily made. Any
claim to the contrary is completely belied by the
evidence of record. Thus, even if Attorney Thomassey had
tiled a timely postsentence motion seeking to
Withdraw the Defendant'$ guilty plea, or even if he had
sought leave to withdraw so that another attorney could tile
a timely post- sentence motion, any postsentence motion
seeking to withdraw the Defendant's plea would have been
'coun.
denied by this
l
Accordingly, the Defendant s fir$t allegation of' error
is entirely without merit because the Defendant cannot
demonstrate that there existed "a reasonable probability
that but for the . omission in question the outcome of the
proceeding would have been different. Bracey, supra, at
,11
942. Based on the foregoing, it is clear that this court
did not abuse its discretion in denying PCRA reliëf on
l
this basis, and the Detendant s first allegatíon of
error should be rejected on appeal
B. This court did not abuse its discretion when it
failed to find that
9
Attorney Thomassey caused the Defendant to
enter into an unknowing, involuntary,
unintelligent plea.
In his second allegation of error, the Defendant
contends that Attorney
Thornassey was not "adequately prepared to take [the] casc
to trial" and that Attorney Thomasscy's "inactions" caused
the Defendant to "antar a guilty plea Ihat was not
intelligently, knowingly and voluntarily made. (Concise
Statement, p. 3). Again, this claim has no merit and is
directly contradicted by the record.
At the Defendant's plea hearing on November 4, 2015i
the Defendant confirmed that: (1) he was not under the
influence of any drugs, alcoholi or medication that would
impair his ability to understand the proceedings or
participate in them, (2) he was not suffering from any
mental illness or infirmity that would affect his decision
making abilities, (3) he was not threatened or coerced
into Pleading guilty, (4) he was not offered any promises
in exchange for his decision to plead guilty, (5) he tuny
and completely understood the naturo and the cqemeñts of
the charge to which he was pleading guilty, (6) he
completed the Guilty-Plea Explanation of Rights Form with
the advice, assiŠtance and supervision of Attorney
Thomassey, (7) he read and understood each question on the
10
form, (8) he answered all of the questions on the form
truthfully and honestly, and (9) he decided to plead
guilty to the unauthorized use charge because he was, in
fact, guilty of that crime. (Plea Hearing Transcript
("PH"), 1 1/4/15, pp. 4-7),
At the PCRA Hearing, Attorney Thomassey expounded on
the details of his representation and confirmed that the
Defendant's main goal was ta plead guilty to the
unauthorized use so that his detainer could be lifted on
another case, thereby allowing him to be released from
jail. (HT, pp. 5, 10)- Mr. Thomassey confirmed in his
lestitnony that he mat with the Detendant several times at
the jail prior to the hearing, and, in accordance with his
consistent practica over the last (40) years ot practicing
criminal raw, he reviewed the discovery and discussed the
case, as well as any possible defenses, with the
Defendant. (H T, pp. 6-7, 9-10). Attorney Thornassey did
not see any viable defenses to the charges, and the
Defendant never discussed any witnesses
or evidence that could exculpate him. (HT, p. 7). Based
on his experience, hi$ review of the case and his
discussions with his client, Attorney Thomassey advised
the Defendant that he believed that he could get the
11
detainer lifted if the Defendant pled guilty to the
unauthorized use Charge. (HT, pp. g, •t i ), The Defendant
indicated to Attorney Thomassey that he was in complete
agreement with that strategy. (HT, p. 8) Attorney
Thomassey indicated -that he was "very surprised 'i when
he later received the Defendant's pro se motion to
withdraw his guilty plea because the Defendant "got what
he wanted." (HT, p, I l ).
The Defendant also testified at the PCRA Hearing, (HT,
pp. 12-24). The
Defendant testified that Attorney Thomassey forced him to
enter the guilty plea, arid he claimed that he had defense
to the charge in that he "rented the car." (HT, p, 15) The
Defendant further stated that Attorney Thomassey never
discussed the pros and cons of going to trial and that he
never discussed the benefits of a jury trial versus a non-
jury trial. (HT, p. 16). When confronted with the
statements he made during his oral piea colloquy, as well
as the answers contained on the written Guilty Plea-
Explanation of Rights Form, the Defendant suddenJy had no
memory Of the many statements that he made in his oral and
written plea colloquies evincing understanding, and he
essentially claimed that he lied throughout the plea
proceedings. (H T, pp. 14-
15,18)
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Specifically, the Defendant testified that (I ) he did
not complete the written plea form, (2) it was not his
handwriting on the form, and (3) he did not recall being
asked during the plea hearing whether he had the advice,
assistance, and supervision of Attorney Thomassey while
filling out the form. (H T, pp. 18-19). The Defendant also
responded "yes" when thiŠ coun specifically asked whether
he had lied during the colloquy, and he further claimed
that he was promised that his detainer would be lifted it
he pled guilty, directly contradicting the statements he
had made under oath at the plea hearing. (HT, pp. 20). The
Defendant also confirmed that hie; "chief complaint" in
his motion was that he had evidence proving his innocence,
in that he "rented the car." (HT, p. 22). When asked about
the part of the plea form that explained he was giving up
the right to present any defenses by pleading guilty, the
Defendant again coufd not recall that question or his
answer thereto. (HT. p, 23).
In sum, the Defendants testimony during the PCRA
Hearing completely contradicted nearly every statement he
had made throughout the plea proceedings and on the
written colloquy form. The law is clear that "[a] person
who (êEects to plead guilty is bound by the statements ho
makes in open court while under oath and he may not later
assort grounds for withdrawing the plea which contradict
the statements he made at his plaa colloquy." Commonwealth
v. Pollard, 832 A.'2d 517, 523 (Pa. 2003).
Indeed, the "longstanding rule of Pennsylvania law is that
a defendant may not chal|enge his guilty plea hy asserting
that he lied while under oath, even it he avers that
counsel induced the lies," Yeomans, supra, at 1047. As our
appellate court has explained, "a defendant who elects to
plead guilty has a duty to answer questions truthfully. We
[cannot) permit a defendant to postpone the final
disposition of his case by lying to the court and later
alleging that his lies were induced by the prompting of
counsel." Pollard, supra,. at 523-24.
The Defendant testifièd at his plea hearing that he
was pleading guilty because he was, in fact, guilty, and
the evidence of record established that the Defendant
knowingly, voluntarily, and intelligentiy entered his
guilty plea. Mr. Thomassey discharged his duty of
providing competent representation, and none of his
actions or inactions caused an involuntary plea. To the
contrary, based on their conversations, the highly
seasoned and experienced attorney obtained exactly the
result that the
Defendant was seeking.
To grant PCRA relief in this case would require the
reviewing court to accept that the Defendant lied under
oath during both his written and oral plea colloquies, and
then reward him for doing so. Respectfúlly, the reviewing
court should refuse to allow the Defendant to lie his way
out of his conviction, This court would also note the
absolute hypocrisy of the Defendant's claim that Attorney
Thomassey did not adequately represent him at the above-
captioned case since he is currently allowing Attorney
Thomassey to represent him on another case, filed at CCH
2014-12770, which is exceedingly more complex. It makes no
sense to assume that the Defendant would continue to be
represented by an attorney as unskilled or ineffective as
he alleges Mr.
Thomassey tobe. Accordingly, for the reasons set forth
above, this second allegation
11
of error as raised in the Defendant's Concise Statement
should also be rejected on appeal
u. CONCLUSION
Based on the foregoing discus$ion, this court did not
err when it denied the Defendant's PCRA petition because
Attorney Thomassay did not provide ineffective assistance
of counsel, and this couffls October 26, 2016 Order denying
PCRA relief should be upheld.
BY THE COURT:
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