J-S01020-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JASON RICHARD MORGAN :
:
Appellant : No. 837 MDA 2017
Appeal from the PCRA Order April 17, 2017
In the Court of Common Pleas of Lackawanna County Criminal Division at
No(s): CP-35-CR-0001629-2008
BEFORE: GANTMAN, P.J., MURRAY, J., and MUSMANNO, J.
MEMORANDUM BY MURRAY, J.: FILED FEBRUARY 21, 2018
Jason Richard Morgan (Appellant) appeals from the order dismissing
his petition filed pursuant to the Post Conviction Relief Act (PCRA), 42
Pa.C.S.A. §§ 9541-9546. We affirm.
This case arises from an April 25, 2008 home invasion in Taylor,
Lackawanna County, Pennsylvania, committed by Appellant. During the
home invasion, Appellant “held two individuals at gunpoint, caused various
physical injuries to both victims during the course of the theft, and
threatened further harm to the victims with the firearm.” PCRA Ct. Op.,
7/19/17, at 2.
The trial court summarized the subsequent procedural history as
follows:
On December [8], 2008, [Appellant] entered a
guilty plea to one (1) count of Burglary in violation of
18 Pa.C.S.A. § 3502(a), one (1) count of Robbery –
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Inflict Serious Bodily Injury in violation of Pa.C.S.A.
§ 3701(a)(1)(i), one (1) count of Aggravated Assault
in violation of 18 Pa.C.S.A. § 2702(a)(4), one (1)
count of Unlawful Restraint in violation of 18
Pa.C.S.A. § 2902(a)(1), and one (1) count of
Possession of an Instrument of a Crime with Intent
in violation of 18 Pa.C.S.A. § 907(a). Prior to
entering his guilty plea, [Appellant] executed a
lengthy written plea colloquy form in which [he]
indicated his awareness of the maximum penalties
he was facing, the elements of the crimes charged,
his satisfaction with counsel, and the terms of the
Plea agreement. Moreover, this [c]ourt also
conducted an on the record inquiry into whether
[Appellant] was entering a knowing, voluntary, and
intelligent plea. After receiving satisfactory
responses from [Appellant], this [c]ourt accepted the
guilty plea.
On February 2, 2009, [Appellant], while
represented by counsel, filed a pro se Motion to
Withdraw Guilty Plea, which this [c]ourt denied as
hybrid representation on February 18, 2009.
On March 23, 2009, this [c]ourt sentenced
[Appellant] to [78 to 160] months’ confinement on
the Burglary count, [42 to 100] months’ on the
Robbery count, and [33 to 70] months’ on the
Aggravated Assault charge, five (5) years’ of
probation on the Unlawful Restraint charge, and [16
to 32] months’ confinement on the Possession of an
Instrument of a Crime charge, consecutive, for an
aggregate term of [169 to 362] months’, or
approximately [14 to 30] years’ confinement,
followed by five (5) years’ probation.
On March 30, 2009, counsel for [Appellant] filed a
Motion for Reconsideration of Sentence, which this
[c]ourt denied on April 1, 2009.
[Appellant] filed a pro se Notice of Appeal to the
Pennsylvania Superior Court on June 8, 2009. After
a lengthy appellate procedural history, the Superior
Court ultimately affirmed this [c]ourt’s Judgment of
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Sentence on May 23, 2012. See [Commonwealth
v. Morgan], 1378 MDA 2009, Order (Filed May 23,
2012).
On March 28, 2013, [Appellant] filed a [pro se
PCRA petition] and present counsel was
subsequently appointed. On August 12, 2014, PCRA
counsel filed an Amended PCRA Petition limiting the
issue to whether [plea]/sentencing counsel [were]
ineffective for failing to file a Motion to Withdraw
Guilty Plea on [Appellant’s] behalf. A PCRA hearing
was held before this [c]ourt on October 9, 2014. On
May 15, 2015, [Appellant] filed a pro se Notice of
Appeal to the Pennsylvania Superior Court, which
was ultimately quashed. See [Commonwealth v.
Morgan], 871 MDA 2015, Order (Filed Aug[.] 28,
2015).
On April 17, 2017, this [c]ourt denied
[Appellant]’s Amended PCRA Petition and [he]
appealed on May 17, 2017.
Id. at 2-4.
On May 22, 2017, the trial court ordered Appellant to file a concise
statement of errors complained of on appeal pursuant to Rule 1925(b) of the
Pennsylvania Rules of Appellate Procedure. On June 12, 2017, Appellant
timely filed his Rule 1925(b) statement.
On appeal, Appellant raises the following issues for our review:
I. Whether [the] [l]ower [c]ourt erred in denying
the Appellant’s Amended Petition for Post Collateral
Relief?
II. Whether the [l]ower [court] erred in finding
that [plea counsel and sentencing counsel were] not
ineffective for failing to re-file Appellant’s Motion to
Withdraw Guilty Plea?
Appellant’s Brief at 7.
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Although Appellant presents two issues in the statement of questions
involved section of his appellate brief, he actually only raises one issue for
our review.1 Appellant argues that his plea counsel and sentencing counsel2
were ineffective because they did not file a pre-sentence motion to withdraw
Appellant’s guilty plea and therefore, the PCRA court erred in denying his
PCRA petition. Specifically, Appellant contends that plea counsel should
have filed the motion because after Appellant signed his written plea
colloquy, he claims that someone altered the provisions regarding his
potential sentence from “Defendant will receive” 6½ to 13 years of
incarceration to the “Commonwealth will not oppose” a sentence of 6½ to 13
years of incarceration. Id. at 17.
“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. Patterson, 143 A.3d 394, 397 (Pa.
Super. 2016) (quotations and citation omitted). “The PCRA court’s findings
will not be disturbed unless there is no support for the findings in the
____________________________________________
1 Appellant does not divide his argument into two parts “as there are
questions to be argued” as prescribed by Pa.R.A.P. 2119(a). Moreover,
Appellant’s his first issue is simply a general assertion of PCRA court error
that is subsumed in Appellant’s second issue.
2 Appellant was represented by the Lackawanna County Public Defender’s
Office. Appellant had different counsel at his guilty plea hearing and his
sentencing hearing because his plea counsel left employment with the Public
Defender’s Office prior to sentencing.
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certified record.” Commonwealth v. Garcia, 23 A.3d 1059, 1061 (Pa.
Super. 2011).
In deciding ineffective assistance of counsel claims, 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). To demonstrate prejudice in an ineffective assistance of counsel
claim, “the petitioner must show that there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding would
have been different.” Commonwealth v. King, 57 A.3d 607, 613 (Pa.
2012). If the petitioner fails to prove any of these prongs, the claim is
subject to dismissal. Bomar, 104 A.3d at 1188. Appellant must
demonstrate that there is a reasonable probability that but for counsel’s
ineffectiveness, Appellant would have filed a pre-sentence motion to
withdraw his guilty plea.
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With respect to pre-sentence motions to withdraw a guilty plea, our
Supreme Court, in Commonwealth v. Carrasquillo, 115 A.3d 1284 (Pa.
2015), explained:
[T]here is no absolute right to withdraw a guilty
plea; trial courts have discretion in determining
whether a withdrawal request will be granted; such
discretion is to be administered liberally in favor of
the accused; and any demonstration by a defendant
of a fair-and-just reason will suffice to support a
grant, unless withdrawal would work substantial
prejudice to the Commonwealth. The perfunctory
fashion in which these principles were applied … lent
the impression that this Court had required
acceptance of a bare assertion of innocence as a fair-
and-just reason.
Id. at 1291-92 (footnote and citations omitted). Therefore, the Court
stated:
[T]he proper inquiry on consideration of such a
withdrawal motion is whether the accused has made
some colorable demonstration, under the
circumstances, such that permitting withdrawal of
the plea would promote fairness and justice. The
policy of liberality remains extant but has its limits,
consistent with the affordance of a degree of
discretion to the common pleas courts.
Id. at 1292.
We conclude that the PCRA court did not abuse its discretion in
dismissing Appellant’s PCRA petition. First, Appellant has failed to make
even a bare assertion of innocence as the basis for withdrawing his guilty
plea. See id.
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Second, Appellant has likewise failed to make a “colorable
demonstration … that permitting withdrawal of the plea would promote
fairness and justice.” See id. With respect to the argument he raises on
appeal relating to his understanding of his potential sentence at the time he
pled guilty, the record reflects that during his guilty plea hearing, Appellant
specifically acknowledged that the trial court was under no obligation to
sentence him to 6½ to 13 years of incarceration and that it could indeed
sentence him beyond that term. N.T., 12/8/08, at 2-3, 9. Appellant also
conceded this point at his PCRA hearing. N.T., 10/9/14, at 7. Moreover,
plea counsel testified at Appellant’s PCRA hearing that the “Commonwealth
will not oppose” language in the written plea colloquy carried “legal
significance” and that “as a matter of course and habit, [he] would have told
[Appellant] that the [trial court] could go beyond” the 6½ to 13 years when
sentencing Appellant. Id. at 30. The PCRA court credited plea counsel’s
testimony in this respect. PCRA Ct. Op., 7/19/17, at 12. Such a
determination is binding on this Court. See Commonwealth v. Medina, 92
A.3d 1210, 1214 (Pa. Super. 2014) (“The PCRA court’s credibility
determinations, when supported by the record, are binding on this Court.”).
Finally, the PCRA hearing transcript further indicates that neither plea
counsel nor sentencing counsel were aware that Appellant desired to
withdraw his guilty plea, that Appellant believed grounds existed for filing
such a motion, or that he had filed a pro se pre-sentence motion to withdraw
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his guilty plea. N.T., 10/9/14, at, 32-37, 43-46. The PCRA court likewise
credited this testimony. PCRA Ct. Op., 7/19/17, at 12; see also Medina,
92 A.3d at 1214. This Court has held that counsel cannot be deemed
ineffective for failing to file a motion to withdraw a guilty plea unless the
appellant either requested counsel to do so or made counsel aware of
grounds to support such a motion. Commonwealth v. Gonzalez, 840 A.2d
326, 331 (Pa. Super. 2003) (en banc).
Therefore, even had plea counsel or sentencing counsel filed a pre-
sentence motion, such motion would have failed. Consequently, Appellant
was not prejudiced by either counsel’s failure to file a pre-sentence motion
to withdraw his guilty plea. Because Appellant failed to prove the third
prong of the test for ineffectiveness, the PCRA court did not err in denying
Appellant’s ineffective assistance of counsel claim. See Bomar, 104 A.3d at
1188.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/21/2018
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