J-S17025-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF : IN THE SUPERIOR COURT OF
PENNSYLVANIA : PENNSYLVANIA
:
:
v. :
:
:
NOEL NIEVES :
: No. 3202 EDA 2016
Appellant :
Appeal from the PCRA Order August 30, 2016
In the Court of Common Pleas of Chester County Criminal Division at
No(s): CP-15-CR-0000858-2015
BEFORE: BENDER, P.J.E., LAZARUS, J., and KUNSELMAN, J.
MEMORANDUM BY LAZARUS, J.: FILED APRIL 16, 2018
Noel Nieves appeals, pro se, from the order, entered in the Court of
Common Pleas of Chester County, denying his petition filed pursuant to the
Post Conviction Relief Act, (“PCRA”), 42 Pa.C.S.A. §§ 9541-45. After our
review, we affirm based on the opinion authored by the Honorable Anthony A.
Sarcione.
In October 2015, Nieves committed three gunpoint robberies in Chester
County. On July 15, 2015, Nieves entered a negotiated guilty plea to one
count of robbery, 18 Pa.C.S.A. § 3701(a)(1)(ii), graded as a felony of the first
degree at docket number 15-CR-0003829-2014, and two counts of robbery,
18 Pa.C.S.A. § 3701(a)(1)(ii), also graded as felonies of the first degree, at
docket number 15-CR-000858-2105.
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In accordance with the terms of the plea bargain, the court sentenced
Nieves on July 17, 2015 to ten to twenty years’ imprisonment followed by ten
years’ probation. Nieves did not file post-sentence motions or a direct appeal.
On November 4, 2015, Nieves filed a timely PCRA petition. He alleged
plea counsel was ineffective for failing to file a pretrial motion to suppress on
various grounds, for “manipulating” him into entering a guilty plea, for failing
to develop a strategy to support his claim of innocence, and for failing to file
a post-sentence motion for modification. On November 6, 2015, the court
appointed PCRA counsel for Nieves.
On January 27, 2016, PCRA counsel filed a petition to withdraw and a
no-merit letter pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa.
1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en
banc). On March 8, 2016, the court issued a notice of intent to dismiss
pursuant to Pa.R.Crim.P. 907(1). Nieves responded with a pro se letter to the
court, claiming he had been diagnosed with ADHD and bipolar disorder as a
child and, although he denied being on medication at the time of his plea, “the
truth was” that he was on medication and could not “focus right” during the
guilty plea colloquy. In response, the court conducted another independent
review of the record and again determined there were no genuine issues
concerning any material fact and that no relief was warranted. The court
issued another Rule 907 notice of intent to dismiss.
On April 20, 2016, Nieves filed an “Emergency Motion for Enlargement
of Time,” seeking additional time to respond to the court’s Rule 907 notice.
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The court granted Nieves’ motion in part, allowing him 60 days to respond.
Nieves filed his response on June 20, 2016, again challenging plea counsel’s
effectiveness in suggesting that if he were convicted, Nieves, as a repeat felon,
would be sentenced to a mandatory 30 to 60 years in prison, and that as a
once-convicted felon, he would not be entitled to the presumption of
innocence.
Nieves wrote a second letter to the court on July 19, 2016, claiming he
was “not right mentally” when he tendered his plea due to his medicated
status, and counsel had suggested that he not admit to being medicated at
the colloquy. On July 22, 2016, the court entered an order directing PCRA
counsel to review Nieves’s Rule 907(1) response and his July 19, 2016 pro se
letter, and to advise the court whether Nieves was entitled to an evidentiary
hearing on whether plea counsel was ineffective for: (1) misadvising Nieves
of the applicable law; (2) failing to file a pretrial motion to suppress; and (3)
for counseling Nieves to plead guilty.
PCRA counsel complied and filed a letter to the court. Thereafter,
following another independent review of the record in light of Nieves’
supplemental claims and PCRA counsel’s response, the court issued a final
order on August 30, 2016 dismissing Nieves’ PCRA petition and granting
counsel’s petition to withdraw. This pro se appeal followed.
Nieves raises the following issue for our review:
Whether this pro se brief upon appeal from the PCRA court’s
August 30, 2016, final dismissal order merits redress is a question
of exceptional circumstances and the law?
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Appellant’s Brief, at 2.
Essentially, Nieves is challenging the PCRA court’s order dismissing his
petition without a hearing to determine if his guilty plea was invalid due to
plea counsel’s ineffectiveness. We review such a decision for an abuse of
discretion. Commonwealth v. Wah, 42 A.3d 335, 338 (Pa. Super. 2012).
A petitioner’s 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.” Id., quoting Commonwealth v.
Turetsky, 925 A.2d 876, 882 (Pa. Super. 2007) (internal citations omitted);
see also Pa.R.Crim.P. 907. “The controlling factor . . . is the status of the
substantive assertions in the petition. Thus, as to ineffectiveness claims in
particular, if the record reflects that the underlying issue is of no arguable
merit or no prejudice resulted, no evidentiary hearing is required.”
Commonwealth v. Baumhammers, 92 A.3d 708, 726–27 (Pa. 2014)
(citations omitted).
Nieves has set forth a comprehensive argument in his pro se brief,
outlining his claims of ineffectiveness of both plea counsel and appointed PCRA
counsel. Nieves argues this Court should remand for a hearing to determine
whether sufficient evidence exists of his “medically impaired mental status at
the time of the negotiated plea deal,” and whether plea counsel advised him
that he would not be entitled to the presumption of innocence and would be
subject to a mandatory 30-60 year sentence. Appellant’s Brief, at 11, 15-17.
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After our review of the parties’ briefs, the record, and the relevant law,
we agree with the PCRA court’s determination that there were no genuine
issues of material fact with respect to Nieves’ claims of ineffectiveness. The
record of the verbal guilty plea colloquy and the written guilty plea colloquy
belies Nieves’ claims that he was manipulated and coerced into entering a
guilty plea. Nieves stated that he was a high school graduate, was not under
the influence of “any drugs, alcohol or medicine,” and that he did not suffer
from any mental illness “or anything else that would cause [him] not to
understand[.]” See N.T. Guilty Plea Colloquy, 7/17/15, at 3. He also stated
that he understood that he was “presumed to be innocent[.]” Id. at 4. At
the colloquy, Nieves admitted to the three gunpoint robberies, id. at 5, 7, and
stated that he was satisfied with plea counsel’s services. Id. at 10. See also
Written Plea Colloquy, 7/17/15, at 6; Pa.R.Crim.P. 590.
“Our law presumes that a defendant who enters a guilty plea was aware
of what he was doing. He bears the burden of proving otherwise.”
Commonwealth v. Pollard, 832 A.2d 517, 522–23 (Pa. Super. 2003). The
record clearly demonstrates that Nieves understood the nature of the charges
against him, and therefore “the voluntariness of the plea is established.”
Commonwealth v. Rush, 909 A.2d 805, 808 (Pa. Super. 2006). “A person
who elects to plead guilty is bound by the statements he makes in open court
while under oath and may not later assert grounds for withdrawing the plea
which contradict the statements he made at his plea colloquy.”
Commonwealth v. Yeomans, 24 A.3d 1044, 1047 (Pa. Super. 2011).
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With respect to his claim that plea counsel advised him to lie when the
court asked whether he was medicated, and was ineffective in telling him he
would not be entitled to the presumption of innocence due to a prior felony
conviction, Nieves essentially asks this Court to accept that he perjured
himself at the colloquy. As illustrated above, Nieves acknowledged that he
was presumed innocent at the colloquy, and this was also affirmed in the
written colloquy, which stated: “I am presumed innocent, and if the
Commonwealth cannot prove me guilty beyond a reasonable doubt I must be
set free on these charges.” Written Guilty Plea Colloquy, 717/15, at 7. Nieves
initialed that line, and signed his name at the bottom of the page. Id. at 7.
We conclude, therefore, that the PCRA court did not abuse its discretion
in dismissing the petition without a hearing. Wah, supra. See
Commonwealth v. Bryant, 855 A.2d 726 (Pa. 2004) (PCRA court may deny
petition without hearing if following review of petition it determines hearing
would serve no purpose); see also Pa.R.Crim.P. 907(1). We affirm the PCRA
court’s order dismissing Nieves’ petition without a hearing based on Judge
Sarcione’s opinion. The parties are directed to attach a copy of that opinion
in the event of further proceedings.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/16/18
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COMMONWEALTH OF PENNSYLVANIA : IN THE COURT OF COMMON PLEAS
vs. : CHESTER COUNTY, PENNSYLVANIA
NOEL NIEVES : NOS. 15-CR-0000858-2015;
15-CR-0003829-2014
: CRIMINAL ACTION-PCRA
Nicholas J. Casenta, Jr., Esquire, Chief Deputy District Attorney, for the
Commonwealth
Noel Nieves, Defendant, Pro Se
OPINION R RULE 1925
rr I
.)
Before the Court is Defendant Noel Nieves' timely*,0eaL.Vom nyr August
30, 2016 Order denying and dismissing his first PCRA
Petiti6C Delend4i filed hi
rz)
Notice of Appeal effective September 24, 2016, the date on which
te attests in th
Certificate of Service attached to his Notice that he placed his Notice of
Appeal in th
prison mail system, thereby satisfying the requirements of service under the
'Prisone
Mailbox Rule.' See Commonwealth v Little, 716 A.2d 1287 (Pa. Super.
1998)(discussin
Prisoner Mailbox Rule). Defendant's Notice of Appeal was thus timely filed
within th
thirty (30) day period following the entry of this Court's final Order
disposing of his PCR
Petition, as required by Pa. R.A.P. 903(a). See Pa. R.A.P.
903(a)("Except as otherwis
prescribed by this rule, the notice of appeal required by Rule 902 (manner of takin
appeal) shallte filed within 30 days after the entry of the order from which the appeal i
taken."). Because Defendant appended to his Notice of Appeal a list of the issues o
which he was complaining, we did not deem it necessary to order a
Concise Statement
pursuant to Pa. R.A.P. 1925(b). Having reviewed the issues Defendant has raised
appeal in light of the record and the relevant constitutional, statutory and
decisional law
J di LIU! iewneves Noel 1" PCRA
1925a.docx
a
we are now prepared to issue the
following recommendation with respect to the
merits of
Defendant's appeal pursuant to Pa. R.A.P. 1925(a).
I. FACTUAL AND PROCEDURAL HISTORY
On July 15, 2015 Defendant tendered
a counseled negotiated guilty plea
t'
one (1) count of Robbery, 18 Pa. C.S.A.
§ 3701(a)(1)(ii) (Count 1), graded
as a Felony o
the First Degree (F-1), at docket
number 15-CR-0003829-2014 and two (2) counts
f
Robbery, 18 Pa. C.S.A. § 3701(a)(1)(ii)
(Counts 22 and 21, respectively), graded a
Felonies of the First Degree (F-1's), at docket
number 15-CR-0000858-2015. The factu I
basis recited in the Verbal Guilty Plea
Colloquy set forth the following predicate for
plea.
With regard to term number 3829 of 2014, on
October 22nd
of 2014, at approximately 9:50 p.m., the
defendant went to the
Shell station at 101 East Chestnut
Street in Coatesville,
Chester County, Pennsylvania where he
made contact with
employees, Michael Brown and Claude Edwards,
C -L -A-U -D-
E.
_ The
defendant_approached wearing a mask, pointed_what _
appeared to be a gun at them and stated both of _
you get back
in the store. They walked back into
the store. He ordered
them to the ground and told Mr. Brown to
open the safe. Mr.
Brown told him he didn't have the key
and told the defendant
to take the money in the register and
leaVe. The defendant
told them to get on the ground again.
And once on the
ground, Mr. Brown said he was tased in the
forehead. And
then the defendant tased Mr. Edwards in the
side.
The defendant grabbed a drawer with
approximately four
hundred dollars in it and ran out the back of the
store.
On 858 of '15, on October 15th of 2014 the
defendant went
to the Hair Cuttery at 3927 Lincoln
Highway in Cain Township,
Chester County, Pennsylvania at
approximately 9:00 p.m.
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And the defendant approached Ms. Brittany Daily, B -R -I
-T -T-
A-N -Y D -A -I -L-Y and Alliah Lacy, A-L-L -I -A -H L -A
-C -Y, who
were employees of the Hair Cuttery, with what
appeared to be
a black semi -automatic handgun which he
pointed at them
and said where is the money bag? The defendant
punched
Ms, Daily on the left side of her face. And they
told him that
the money was with another employee still in the
store. The
defendant then fled the area.
Also on that date and around the same time, the
defendant
went to the Pizza Hut located at 1809 Lincoln Highway also
in
Caln Township, Chester County, Pennsylvania.
That is
located approximately one and a half miles from the
Hair
Cuttery. The defendant went there and made contact
with
employees Michael Hashem, H -A-S -H -E-M and Elizabeth
Cosella, C -O -S -E-L -L -A. Ms. Cosella was working at the cash
register when the defendant approached and pointed
what
appeared to be a gun in her face while wearing a
mask and a
gray hood ie.
The defendant told her to give him the money, give
him the
money and punched her in the face, yelled at her to
give him
the money again. She opened the register drawer and
the defendant all the cash inside of it, nine hundred
me - three hundred ninety-six dollars from the
-gave
excuse
delivery
register.
THE COURT: He didn't get anything at the. Hair
Cuttery,________
[THE PROSECUTOR]: Correct. The two
employees he
approached did not have the money. And he fled without
entering the store in that instance.
(Verbal Guilty Plea Colloquy and Sentencing
Hearing, 7/17/15, N.T. 4-7). Defenda
admitted to committing these acts as outlined by the
Commonwealth. (Verbal Guilty Ple
Colloquy and Sentencing Hearing, 7/17/15, N.T. 5, 7;
Written Guilty Plea Colloqu
7/17/15, at 2, 5). Importantly to the instant proceedings, the following exchang
occurred.
THE COURT: How did the police get to this fellow?
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[THE PROSECUTOR]: There was a video at one of
the stores, Judge, that showed, although the defendant's face
was covered, there was a general description that was able to
be provided. And he has a sleeve tattoo on his right arm that
was exposed in some of the video footage. It has distinct
patterning on it. The police, actually the county detectives ran
a search in the database, for someone who fit
the rough
description of the defendant, the description that was provided
at the scene, who lived in the Downingtown area and who had
a right arm tattoo and looked for a right arm
tattoo that
matched. And they found the defendant in the system. They
found his tattoo. And they took it to a tattoo artist in the area
who was able to confirm that based on the shading and
comparison between the photo of the defendant and his tattoo
and video footage, that was in fact the same tattoo.
[PLEA COUNSEL]: And then they got a warrant and
went to the house and found incriminating evidence.
[THE PROSECUTOR]: That was the back end of it.
That was how they originally -
CI
THE COURT: They found the taser, [M]r. Jurs?
e 01\ g
[PLEA COUNSEL]: No, a stun gun similar to that.
(Verbal Guilty Plea and Sentencing Hearing, 7/17/15, N.T. 8-9).
In accordance with the terms of Defendants negotiated plea agreement, w
sentenced Defendant on July 17, 2015 on Count 1, Robbery, at docket number 15-C
0003829-2014 to ierve a term of ten (10) to twenty (20) years' imprisonment in a Stat
Correctional Facility. This sentence did not represent a mandatory minimum. At ter
number 15-CR-0000858-2015, we sentenced Defendant on July 17, 2015 to serve a ter
of ten (10) to twenty (20) years' imprisonment in a State Correctional Facility for the
crim
of Robbery at Count 22, to run concurrently with the sentence imposed at docket
number
15-CR-0003829-2014. Again, this sentence did not represent a mandatory minimum.
On Count 21, again a Robbery conviction, we sentenced Defendant to serve a
term f
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ten (10) years' probation, to run consecutively to the sentence
imposed on Count .1 a
docket number 15-CR-0003829-2014. Thus, Defendant's
aggregate sentence is two (2
concurrent terms of ten (10) to twenty (20) years' imprisonment in a
State Correctional
Facility, followed by ten (10) years of consecutive probation.
We gave Defendant credit
for times served from October 23, 2014 to July 17, 2015. We
ordered Defendant to pa
the costs of prosecution and three (3) ten dollar ($10.00)
fines. We directed Defendant t
pay ten dollars ($10.00) in restitution to the Shell station and
three hundred ninety-six
dollars ($396.00) to the Pizza Hut. We directed that Defendant have no
contact with an
of the victims. Finally, we ordered him to provide a DNA sample and pay the
requisit
fee associated therewith and to submit to a drug and alcohol
evaluation and follow a I
recommended treatment. Defendant was advised of his post -sentence
rights, includin
his right to file a post -sentence motion within ten (10) days
of sentencing, both orally o
the record at the Verbal Guilty Plea and Sentencing Hearing
and in writing in his Written
Guilty Plea Colloquy. (Verbal Guilty Plea and Sentencing Hearing,
7/17/15, N.T. 19-21
Written Guilty Plea Colloquy, 7/17/15, at 8-9).
Defendant did not file a post-sentence motion or take a direct appeal..
Consequently; for PCRA purposes, Defendants Judgment of Sentence became
final on
August 16, 2015, thirty (30) days after the imposition of sentence without a
post-sentenc
motion or direct appeal being filed. See 42 Pa. C.S.A. § 9545(b)(3)("For
purposes of thi
subchapter, a judgment becomes final at the conclusion of direct review,
includin'
discretionary review in the Supreme Court of the United States and the
Supreme Court o
Pennsylvania, or at the expiration of the time for seeking the review."); Pa,
R.A.P.
903(a)("Except as otherwise prescribed by this rule, the notice of appeal required by
Rul
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902 (manner of taking appeal) shall be filed within 30
days after the entry of the ord
from which the appeal is taken.").
On November 4; 2015, Defendant filed a timely PCRA Petitio
Defendant's Petition referenced only docket number
15-CR-0003829-2014. In hi
Petition, Defendant claimed that his plea counsel was ineffective
for failing to file a pr
trial motion to suppress evidence on the grounds of racial
profiling, for failing to file a pr
trial motion to suppress challenging identification
evidence, that his plea agreement wa
the product of manipulation and coercion by plea
counsel, that plea counsel wa
ineffective for failing to develop a strategy to support Defendant's
alleged claim of actu I
innocence, that plea counsel failed to file a requested post
-sentence motion f
modification, that his plea agreement was "the result of unethical
behavior or activity" o
the part of plea counsel, whom he alleged was "partial to the
police" and "deliberate!
manipulated the [Defendant] into taking a Plea of Guilt[.]" Defendant attached to hi
Petition (1) a letter from plea counsel dated February 25,
2015 regarding variou
developments in Defendant's case, including plea counsel's filing- of a
--Motion f
Discovery, (2) a letter from plea counsel dated June 1, 2015, in
which plea couns
represents that he "will be filing suppression motion [sic] regarding the
search warrants i
which we will ask the Judge to suppress all items seized from your
residence and car[
and (3) a letter from First Assistant Public Defender Nathan M.
Schenker, Esquire date
August 17, 2015 indicating that Defendant's letter request for a motion for modificatio
was received by his office on August 13, 2015, well beyond the
period for filing a time!
post -sentence motion. Mr. Schenker advised Defendant in this letter that due to hi
having entered a negotiated guilty plea, and having completing the
lengthy and comple
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process which that requires, there was
essentially no basis for filing a motion for
modification and that the time period for seeking such
modification had already expired.
Mr. Schenker advised Defendant in this
letter that Defendant could proceed by filing
PCRA Petition within one (1) year of his date of
sentence.
On November 6, 2015 we issued an Order,
captioned only with docke
number 15-CR-0003829-2014, appointing PCRA
Counsel for Defendant. On January 2
2016, PCRA Counsel filed a Petition to Withdraw as
PCRA Counsel. On March 8, 2016,
after conducting an independent review of the record,
we determined that there were n
genuine issues concerning any material fact and that
PCRA relief was not warranted, an
issued a Notice of Intent to Dismiss PCRA Petition
Pursuant to Pa. R.Crim.P. 907(1).
On March 4, 2016 the Defendant wrote a pro se letter to the Court, whic
we received and filed with the Clerk of Courts on
March 11, 2016, directing that Office t
forward a copy of Defendant's March 4, 2016 to
counsel. In his March 4, 2016 lette
Defendant protested his actual innocence, challenged the
accuracy of the evidence use
to identify him, claimed that there was exculpatory
evidence that was not provided to th
Court in the form of a cigarette butt found at the scene of
the one of the Robberies whic
-did not contain -a match of his DNA, and stated that
his plea counsel told him that if he di
not plead he would be convicted and would face
thirty (30) to sixty (60) years in priso
and that he should just "take the deal" so that he
will still be able to see his son, at whic
point Defendant stated that "i [sic] got scared and
gave up on myself." (Deft,'s Lettei
3/4/16, at 1). Defendant also claimed that he was
diagnosed with ADHD and Bi-Pola
Disorder as a child and that, although he denied on the record at his guilty plea
colloqu
that he was on any medication, "the truth was" that
he was on medication at the time
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his plea and was under distress and could not "focus right" during his guilty plea colloqu
(Deft.'s Letter, 3/4/16, at 1). Defendant wrote both docket numbers 15-CR-0003829
2014 and 15-CR-0000858-2015 on his March 4, 2016 letter.
On March 11, 2016, based on Defendant's March 4, 2016 letter, we issue
an Order amending the caption of our November 4, 2015 Order to reflect both dock t
numbers and directing that Defendant's PCRA Petition shall be deemed to have been
filed to both dockets effective November 4, 2015. Our March 11, 2016 Order als
vacated our previous March 8, 2016 Rule 907(1) Notice, directed the Office of the Cler
of Courts of Chester County to forward a copy of Defendant's March 4, 2016 letter t
counsel, and directed that PCRA Counsel review Defendant's March 4, 2016 letter an
file, within forty-five (45) days of the Order, either an Amended PCRA Petition or
Petition for Leave to Withdraw as Counsel.
On March 17, 2016, PCRA Counsel filed a letter to the Court in which he
advised the Court that his review of Defendant's PCRA Petition prior to the filing of hi
January 27, 2016 Petition for Leave to Withdraw as PCRA Counsel had encompasse
both dockets already. Stating that he had addressed Petitioner's claims of actu
innocende in his prior Petition for Leave to Withdraw as PCRA Counsel, PCRA Couns
addressed the issue concerning Defendant's medication by noting that at the Verb
Guilty Plea Colloquy Defendant had advised the Court that he did not suffer from ment
illness and that he was not under the influence of any drugs or medications. (Verb
Guilty Plea Colloquy, 7/17/15, N.T. 3). PCRA Counsel requested that his January 2
2016 Petition for Leave to Withdraw as PCRA Counsel be reinstated, that Defendant'
first PCRA Petition be dismissed, and that he be allowed to withdraw from representatio
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On April 1, 2016, after conducting another independent review of the
record, we determined that there were no genuine issues concerning any material
faot
and that PCRA relief was not warranted, and issued a Notice of Intent to Dismiss PCR
Petition Pursuant to Pa. R.Crim.P. 907(1). In accordance with Pennsylvania Rule o
Criminal Procedure 907(1), we gave Defendant twenty (20) days in which to respond t
our Rule 907(1) Notice,
On April 20, 20161 Defendant filed an "Emergency Motion for Enlaregmen
[sic] of Time", seeking additional time in which to respond to our Rule 907(1) Notic
Specifically, Defendant requested one hundred and twenty (120) days in which t
respond to our Rule 907(1) Notice. In his "Emergency Motion", Defendant als
challenged the stewardship of PCRA Counsel. Defendant appended to his "Emergency
Motion" another copy of the February 25, 2015 letter written by plea counsel and a letter
by Defendant to PCRA Counsel dated April 6, 2016 in which Defendant claimed he wa
actually innocent of the crimes to which he pled, challenged the accuracy of th
identification evidence against him, challenged plea counsel's stewardship for failure t
call a particular witness by the name of "Charlie" in his favor, and raised allegations o
. ,
defeatS in the execution of the search warrant at the Defendant's residence. DefendanIt
also again claimed in this letter that a cigarette had been found at one of the crim
scenes and his DNA had been tested and it was determined that there was no matt
Defendant suggested that the negative results implied that he was excluded from th
scene of the crime, thereby exculpating him, and his incarceration is therefor
Defendant's Motion was received by the Clerk of Courts on April 25, 2016; however, the letter In which It was sent
bore a postmark of April 20, 2016. Accordingly, under the Prisoner Mailbox Rule, we deemed Defendant's letter to
have been filed on April 20, 2016. See Commonwealth v. Little, 716 A.2d 1287 (Pa. Super. 1998).
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unconstitutional. He claims his plea counsel was aware of the DNA test results. Finall
Defendant stated that he was heavily medicated for ADHD and tai -Polar Disorder at th
time he entered his plea and that, as a result, his plea could not have been knowin
voluntary or intelligent. He also attached to his Motion two (2) pictures, one of whic
according to his April 6, 2016 letter to PCRA Counsel, is a copy of surveillance video, an
the other of which, again according to Defendant's April 6, 2016 letter to PCRA Counse
is a picture of the Defendant's tattooed forearm. Defendant alleges that the Count
Detectives took the photograph on the day they executed the search warrant at hi
residence.
On May 10, 2016 we granted Defendant's .Motion in part and denied it in
part; We denied Defendant's request for one hundred and twenty (120) days in which t
respond to our Rule 907(1) Notice, but gave him sixty (60) days from the April 21, 201
expiration of his original twenty (20) day response period in which to file his Rule 907(1
response, making his response due on or before June 20, 2016.
On June 20, 2016, Defendant filed his Rule 907(1) Response. In his Rul
907(1) Response, Defendant again challenged the stewardship of PCRA Counsel, who
he claimed did not adequately investigate Defendant's issues, failed to remedy th
defects in Defendant's PCRA Petition, and failed to adequately meet or speak with th
Defendant to discuss the status of the Defendant's PCRA Petition. Defendant als
claimed that his plea counsel coerced his plea by advising him (a) that his chances of a
acquittal if he went to trial were "close to 0", (b) that Defendant, as a once convicte
Felon, would not be entitled to the presumption of innocence, and (c) that, if convicte
Defendant would be sentenced under the "Repeated Offender Act" [sic] to a mandato
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thirty (30) to sixty (60) years in prison. Defendant claimed that his plea counsel wa
ineffective for failing to file a motion to suppress the evidence obtained as a result of th
police execution of a search warrant at his residence on the grounds that the search wa
conducted in violation of the Fourth Amendment because the police only gav
Defendant's wife, who is not the homeowner, according to the Defendant, a "quick look
glance" at the warrant after ordering Defendant and his family to vacate the premises an
by conducting the search while Defendant, who claims to be the sole homeowner, wa
not present in the home. Defendant also claimed that his plea counsel induced him to lie,
by means of "subliminal suggestion", about his mental health and medication status a
the Verbal Guilty Plea Colloquy. Defendant claimed that his plea counsel, allegedly in
violation of Lefler v. Cooper, 132 S.Ct. 1376 (U.S. Mich. 2012) and Missouri v. Rye, 131
S.Ct. 1399 (U.S. Mo. 2012), cert. denied, 132 S.Ct, 1789 (U.S. Mo. 2012), insisted thalt
"[Defendant] and his family should not question or attempt to interfere with his method
for they know nothing of the legal ramifications at work and to simply rely upon his legal
expertise because he ((plea counsel]), must do what's necessary to apiese [sic] bot
[Defendant] and the Commonwealth." (Deft.'s Rule 907(1) Response, 6/20/16, at 3, par
"A"). Defendant claimed that his plea counsel failed to develop an informed opinio
about the course of action Defendant should pursue in this matter, as allegedly require
by Von Moltke v. Gillies, 68 S.Ct. 316 (U.S. Mich. 1948). Finally, Defendant claimed th
plea counsel failed to inform him of his basic sentencing liabilities and othe
considerations so as to enable Defendant to make an informed decision about whether t
accept or reject the Commonwealth's plea offer. Defendant requested that th
undersigned to allow further PCRA proceedings, appoint new PCRA Counsel, and vacat
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Defendant's conviction and sentence pending the resolution of whether Defendant's plea
was voluntary and "free from the influence of, powerful narcotics". (Deft.'s Rule 907(1)
Response, 6/20/16, at 5).
On July 18, 2016 Defendant wrote a pro se letter to the Court, which we
received and filed with the Clerk of Courts on July 22, 2016. In his pm se lette ,
Defendant claimed that he was "not right mentally" when he tendered his plea becaus
he was on medication and that his plea counsel knew he was on medication and told hi
not to admit it in order to "falsly [sic] convinc[e] [him] to perjur [sic]" himself. Defendarit
requested a copy of his prison medical records and other discovery in order to show that
his plea was not knowingly, voluntarily and intelligently entered. He attached to his lett r
a "Letter in Application" addressed to the "official court reporter/tourt stenographe '
seated For The Honorable Anthony A. Sarcione" in which he set forth under the titl
"Requisition" all of the items of discovery he wished to have provided to him.
On July 22, 2016, we issued two Orders. One Order was issued i
'response to Defendant's request in his July 18, 2016 pro se letter for free copies of hi
court records and transcripts. We denied Defendant's request, noting that so long as th
Defendant's attorney had access to the requested items, Defendant's right to free copies
of these items was satisfied. Sullivan v. Sokolski, 1994 WL 105526 (ED. Pa. 1994
aff'd, 40 F.3d 1241 (3rd Cir. Pa. 1994); Gay v. Watkins, 579 F. Supp. 1019 (E.D. P
1984). As Defendant indicated in his pro se letter that he was making this request in
order to demonstrate that his guilty plea could not have been knowingly, voluntarily an
intelligently entered due to the alleged medicated status at the time he entered his ple
we also added that Defendant's argument had no merit because of the long-standing rul
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in Pennsylvania that a defendant may not challenge his guilty plea by asserting that h
lied under oath, even if he avers that his counsel induced the lies. See Commonwealth
Yeomans, 24 A.3d 1044 (Pa. Super. 2011), reargument denied (August 18, 2011). W
then quoted from that portion of the Verbal Guilty Plea transcript which demonstrates tha
Defendant advised the Court during his Verbal Guilty Plea that he was not under th
influence of any drugs, alcohol or medicine. (See Guilty Plea and Sentencing Transcrip ,
7/17/15,'N.T. 3).
Our second Order dated July 22, 2016 directed PCRA Counsel to revie
Defendant's Rule 907(1) Response and his pro se July 18, 2016 letter and advise th
Court in writing within thirty (30) days of the date of the Order whether Defendant wa
entitled to an evidentiary hearing on the following issues: (a) whether plea counsel
misadvised the Defendant of the applicable law; (b) whether plea counsel was ineffectiv
for failing to file a pretrial suppression motion; and (c) whether plea counsel wa
ineffective for counseling Defendant to plead guilty.
On August 22, 2016 PCRA Counsel filed a letter to the Court addressing
the three (3) issues we directed him to review in our July 22, 2016 Order. PCRA Couns I
attached a letter frorn plea counSel in which plea counsel denied ever telling th
Defendant that he would not be entitled to the presumption of innocence, asserted tha
he reviewed the search warrant executed by the police on Defendant's property an
found no issues that would warrant relief by the Court, and explained his reasons for
advising Defendant to accept the Commonwealth's plea offer.
After conducting another independent review of the record in light of all of
the issues raised by the Defendant in his Petition and supplemental filings and all of th
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analyses by PCRA Counsel, including the letter from plea counsel
attached to his fin -I
recommendation, we issued a final Order dismissing the Defendant's first
PCRA Petitio
on August 30, 2016.
On September 24, 2016 the Defendant placed his Notice of
Appeal in th
prison mail system, thereby satisfying the requirements of Pa.
R.A.P. 903(a) pursuant t
the Prisoner Mailbox Rule. See Commonwealth v. Little, 716 A.2d 1287 (Pa. Supe .
1998)(regarding Prisoner Mailbox Rule). Attached to his Notice of Appeal, Defendarlt
appended a statement of the issues he wished to raise on appeal.
Because Defenda
filed this statement of his claims, we did not request a Concise
Statement of Error
Complained of on Appeal pursuant to Pa. R.A.P. 1925(b). 1;(
In his Statement, Defendant raised the following issues,
Defendant claime
that PCRA Counsel abandoned him and failed to conduct an
adequate investigatio
which he suggests would have had to include a personal meeting or
conference with th
Defendant, into Defendant's PCRA claims, including Defendant's claim that he wa
actually innocent of the crimes to which he pled and that his plea was not
knowing]
voluntarily or intelligently entered due to his alleged medicated status and
due to ple
counsel% -alleged maniPulatiVe and coercive' tactics'. Defendant claimed that ple
counsel violated Lefler v. Cooper, 132 S.Ct. 1376 (U.S. Mich. 2012) and
Missouri v. Frye,
132 S,Ct. 1399 (U.S. Mo. 2012), cert. denied, 132 S.Ct. 1789 (U.S.
Mo. 2012) by insistin
that Defendant and his family "not question or attempt to interfere
with his methods f
they know nothing of legal ramifications at work and to simply
rely upon his leg I
expertise because he ((plea counsel)), must do what's necessary
to apiese [sic] bot
[Defendant] and the Commonwelath." (Deft's Statement, 9/24/16, at 4, para.
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1925a.docx
Defendant claimed that he was deprived of
the effective assistance of counsel
during th
pretrial and plea bargaining phases of
his prosecution and that plea
counsel compelle
Defendant's plea without Defendant's
understanding and consent, in violation of the
Fift
Sixth and Fourteenth Amendments to
the United States Constitution and
Article I, §§
and 14 of the Pennsylvania
Constitution. Finally, Defendant claimed
that his ple
counsel violated Von Moltke v. Gillies, 68
S.Ct. 316 (U.S. Mich. 1948) by failing
"to get a
opinion with the specifity (sic] and
explicitness that the standards require, counsel
als
failed to educate [Defendant] about his
basic sentencing liabilities." (Deft.'s
Statemen
9/24/16, at 5). In essence, as near as
we can decipher, Defendant claim is
that ple
counsel did not offer him adequate
advice with respect to his options of
going to trial or
taking a plea and did not advise
Defendant about his sentencing
exposure under th
Statewide Sentencing Guidelines.
Having reviewed the record in light of the
relevant constitutional, statuto
and decisional law, we are now
prepared to issue the following
recommendations wit
regard to the merits of Defendant's PCRA
appeal.
II. DISCUSSION
A. Claims raised in November 4,
2011 PCRA Petition
We will begin our analysis with the
claims Defendant raised in his
November 4, 2011 PCRA Petition.
Concerning Defendant's claim that plea counsel
was ineffective for failing t
file a pre-trial motion to suppress, whether
on the grounds of racial profiling or
improperl
obtained evidence, including identification
evidence, Defendant waived his right to fil
pre-trial motions by tendering a negotiated
guilty plea. See Commonwealth v.
Reich!
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589 A.2d 1140 (Pa. Super.
1991)(generally, a plea of guilty amounts
to a waiver of a I
defects and defenses except those
concerning the jurisdiction of the
court, the legality
the sentence, and the validity
of the plea). In his Written Guilty
Plea Colloquy, Defendart
acknowledged that he was waiving his
right to file pre-trial motions
as a result if
tendering his plea. In paragraph
20 of Defendant's Written
Guilty Plea Colloqu
Defendant acknowledged the
following.
If I went to trial, I would have
the right to file motions
the Court for many different asking
kinds of relief. Some of these
would be motions to quash or
dismiss the charges against me
for lack of evidence or for
procedural defects; to suppress the
use of evidence against me
because it was obtained
unconstitutionally, as for instance by improper
an illegal search and questioning or
seizure; and to ask, that evidence
suppressed because it was be
improperly obtained, such as
identification testimony. There could be
If I file such pre-trial other motions, also.
applications, a Judge will have to rule on
them before the case could go to
trial. I am willing to give up
these rights.
(Written Guilty Plea Colloquy,
7/17/15, at 6, para. 20)(emphasis
added). Defendart
_signed his initials on the_line to the
bottom right of this paragraph and
signed his name on
the line at the bottom of the
page immediately below this
paragraph. (Written Guilty Ple
Colloquy, 7/17/15, N.T. 6).
Defendant ackpowledged and agreed to
the waiver of his rig
to file pre-trial motions in
exchange for the tender of his guilty
plea. There is n
substantive merit to Defendant's claim.
See Commonwealth v.
Williams, 899 A.2d 106
(Pa. 2006)(regarding three (3)
prong test for ineffective assistance
of counsel).
With respect to Defendant's claim
that counsel was ineffective for
coercin
and manipulating him into
accepting the Commonwealth's plea
offer, the Verbal an
Written Guilty Plea Colloquies belie
the veracity of his claim. At the
Verbal Guilty Ple
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\Nieves Noel e PCRA 1925a.docx
Colloquy, the Court asked the
Defendant, "Has anyone threatened or
forced you to pleao
guilty?", to which Defendant
responded, "No, sir." (Verbal Guilty
Plea Colloquy, 7/17/15,
N.T. 11). The Court then asked
the Defendant, "Other than the
promise contained in the
plea agreement, has anyone
promised you anything else to induce
you to plead guilty?"
to which the Defendant
responded, "No." (Verbal Guilty Plea
Colloquy, 7/17/15, N.T. 11).
In the Written Guilty Plea
Colloquy, Defendant signed his
initials2 on the line provided to
the right of the following
statements.
VOLUNTARINESS OF PLEA:
I agree that:
17. No one has used any force
me in order to get me to enter
or threats against
this plea of guilty. Vsi NN
18. No promises have been made
get me to enter this plea other to me in order to
than what is set forth in the
plea bargain agreement, if any,
on page 3 and 4 of this guilty
plea form.
Vs/I NN
_(Written Guilty Plea_Colloquy,
7/17/15,_at 6).__Defendant alsosignecl _his
name on_the lin
provided at the bottom of the page
containing these two paragraphs.
(Written Guilty Ple
Colloquy, 7/17/15, at 6). Further, in the
Verbal Guilty Plea Colloquy the
Court asked th
2
This Court asked Defendant on
the record at the Verbal Guilty Plea
colloquy?", to which Defendant Colloquy, "Did you sign and Initial the guilty
responded, "Yes, I have." (Verbal pie'
followed up by asking Defendant, Guilty Plea Colloquy, 7/17/15, N.T.
"Old you review It with Mr. Jurs 11). W
(Verbal Guilty Plea Colloquy, (plea counsel) before you signed
7/17/15, N.T. 11). Defendant again and Initialed it?'
7/17/15, N.T. 11). The end of the responded, "Yes." (Verbal Guilty Plea
Written Guilty Plea Colloquy also contains Colioqu
an attestation which reads:
AFFIRM THAT I HAVE RED THE
I
ABOVE DOCUMENT IN ITS
UNDERSTAND ITS FULL MEANING, AND ENTIRETY AND I
I AM STILL,
ENTER A PLEA OF GUILTY TO THE NEVERTHELESS, WILLING TO
OFEFNSES SPECIFIED. I FURTHER
MY SIGNATURE AND AFFIRM THAT
INITALS ON EACH PAGE OF THIS
DOCUMENT ARE TRUE AND
CORRECT.
(Written Guilty Plea Colloquy, 7/17/15, at
9). Defendant signed his
of this paragraph. (Written name on the line provided below
Guilty Plea Colloquy, 7/17/15, at 9). and to the righ
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Defendant, "Have you had time to
discuss your case and go over
things with Mr. Jur
[plea counsel]?". (Verbal
Guilty Plea Colloquy,
7/17/15, N.T. 10). Defendant replie
"Yes, I have." (Verbal Guilty
Plea Colloquy, 7/17/15, N.T.
10). The Court then aske
"Are you satisfied with his
services?", to which Defendant
replied, "Yes." (Verbal Guilt
Plea Colloquy, 7/17115, N.T.
10). Finally, in the Written
Guilty, Plea Colloquy, Defenda t
was asked, "Do you understand
the charges against you'?"
(Written Guilty Plea Colloqu
7/17/15, at 6, para. 15). Defendant
wrote on the line to the right of
this question, "Yes
and placed his initials on
the line immediately below his
response. (Written Guilty Ple
Colloquy, 7/17/15, at 6, para. 15).
The Written Guilty Plea
Colloquy then asked th
Defendant, "Are you able to work
with your lawyer in responding
to those charges?", t
which Defendant wrote "Yes" on
the line to the right of the
question and placed his initial
on the line immediately
below his response. (Written Guilty
Plea Colloquy, 7/17/15, N.
6, para. 16). At the end
of the Written Guilty Plea
Colloquy, the Written Guilty Ple
Colloquy contained the following
paragraphs.
TO MY LAWYER:
39. I have had enough time to
charges with my lawyer, and I am discuss these
that he has given me, and satisfied with the advice
with his representation of
before this Court. me
[Ist] NN
40. I have gone over this
attorney, and he has explained it document with my
to me and answered any
questions I have concerning it.
[/s/] NN
41. I further agree that, although I
assisted by my attorney, it is my have been
own decision to enter the
plea that I [am) making here
today. [/s/] NN
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(Written Guilty Plea Colloquy,
7/17/15, at 9, paras. 39-41).
Defendant signed his initial?
on the lines provided to the
right of each paragraph, and
signed the affirmation belo
acknowledging that
IAFFIRM THAT I HAVE READ THE
ITS ENTIRETY AND I
ABOVE DOCUMENT IN
UNDERSTAND ITS FULL MEANING,
AND I AM STILL,
NEVERTHELESS, WILLING TO ENTER A
PLEA OF GUILTY TO THE
OFFENSES SPECIFIED. I
FURTHER AFFIRM THAT MY
ON EACH PAGE OF THIS SIGNATURE AND INITIALS
DOCUMENT ARE TRUE AND
CORRECT.
(Written Guilty Plea Colloquy,
7117/15, at 9). Defendant's claim
that he was coerced an
manipulated into entering his plea is
contrary to his verbal and written
averments at th
Guilty Plea Colloquy. A defendant
may not challenge his guilty plea
by asserting that h
lied to the Court under oath.
Commonwealth v. Yeomans, 24 A.3d 1044
(Pa. Supe
2011), reargument denied (August
18, 2011). Defendant's claim
that his counsel coerce
and manipulated him into
pleading guilty has no substantive
merit.
With respect to Defendant's
claim that plea counsel was
ineffective for falling to develop a strategy
to support Defendant's
alleged claim of actu I
innocence, again we note that Defendant
pled guilty. Defendant admitted
on the record
in open court that he
committed the crimes that were the
subject of the plea bargai
(Verbal Guilty Plea Colloquy,
cig 7/17/15, N.T. 5,, 7-8). He
acknowledged in writing on th
Written Guilty Plea Colloquy that "I
admit committing the crimes to
which I am pleadin
guilty" and "I acknowledge that the
facts occurred as set forth on
page 2 of this form.
(Written Guilty Plea Colloquy,
7/17/15, at 5). He signed each and
every page of th
Written Guilty Plea Colloquy,
including the pages setting forth the
offenses and th
factual basis for the plea and placed
his initials next to every
numbered paragrap
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s:\admin \sarcione\Nieves Noel 1st PCRA 1925a.docx
(Written Guilty Plea Colloquy, 7/17/15, at 1-9; Guilty. Plea
and Sentencing Transcrip
7/17/15, N.T. 11). Never once did Defendant protest or even
suggest in any way that h
was innocent of the crimes to which he was pleading.
Further, as plea counsel noted in his letter to PCRA Counsel,
the evidence
against the Defendant was strong. There was video
surveillance footage of the crime
showing the perpetrator to have the same distinctive tattoo
that Defendant has on hi
right arm, eyewitness despLiptions from the victims, and, at
his home, according to th
Search Warrant Receipts/Inventories, Detectives found a cash
register drawer, a stu
gun, $427.00 in U.S. currency, various weapons and a pair
of size 9 Timberland shoe-.
Defendant has a prior conviction for. Robbery, for which he was
sentenced to four (4) t
eight (8) years in a State penitentiary and for which he was on
State Parole at the tim
these crimes were committed. Defense counsel did not
develop a strategy to suppo
Defendant's alleged claim of actual innocence because Defendant never
made such
claim. Defendant's post -sentence attempt to raise such a claim
now rings hollow in light
of his admissions during the negotiated guilty plea
colloquy, the strength of th
Commonwealth's case, and his prior record.
"A guilty plea is not a ceremony of innocence, it is an occasion where
one
offers a confession of guilt." Commonwealth v. Watson, 835 A.2d 786 (Pa.
Super. 2003
Further,
A defendant may plead guilty for any reason: to shield others,
avoid further exposure, to diminish the penalty, to be
done
with the matter, or any secret reason that appeals to his
needs. What is generally and most objectively accepted is
that a plea is offered to relieve conscience, to set the record
straight and, as earnest of error and repentance, to accept the
penalty.
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Commonwealth v, Watson, 835 A.2d 786 (Pa. Super. 2003).
Defendant's belate
attempt to suggest that he is actually
innocent of the crimes to which he pled afte
extensive record oral and written colloquy is
belied by the evidence. His attempt to cas
aspersions upon counsel for failing to "develop a
strategy" to support this spurious claim
is without merit.
Turning to Defendant's claim that plea
counsel was ineffective for failing to
file a post -sentence motion for
modification, we note, as did First Assistant Publi
Defender Nathan M. Schenker, Esquire in his
August 17, 2015 letter to the Defendan',
that Defendant's request was not received
by the Office of the Public Defender o
Chester County until August 13,2015, well after the
expiration of the ten (10) day perio
provided by the Rules of Criminal Procedure for
filing post -sentence motions. See P
R.Crim.P. 720(A)(1)("[A] written post-sentence
motion shall be filed no later than 10 day
after imposition of sentence."). (See also
Verbal Guilty Plea Colloquy, 7/17/15, N.T. 2
_["You also have the right to file with this. Court,
within ten days _of today in_writing, a post
sentence motion."]; Written Guilty Plea Colloquy,
7/17/15, at 8, para. 34 ["I have ten (1
days from the date I arn sentenced within
which to the optional motions with this Court fo
post -sentence relief[.]"]). Further, Defendant tendered a negotiated guilty
plea. Thi
Court is unable to modify the terms of a negotiated plea at the unilateral request of eithe
party. Commonwealth v. Coles, 530 A.2d 453 (Pa. Super.
1987), appeal denied, 55
A.2d 34 (Pa. 1989). Therefore, a post
-sentence motion for modification would have bee
frivolous. Counsel cannot be deemed ineffective for
failing to file a frivolous motion
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Commonwealth v. Vesay, 464 A.2d 1363 (Pa. Super. 1983).
Defendant's claim djf
ineffective assistance of counsel has no substantive merit.
With respect to Defendant's claim that his plea
agreement was "the result o
unethical behavior or activity" on the part of plea counsel,
whom he alleged was "part' I
to the police" and "deliberately manipulated the
[Defendant] into taking a Plea of Guil "
(see Deft.'s PCRA Petition, 11/4/15, at 12, para. 2),
we have already demonstrate
above, by Defendant's own admissions during the Verbal
Guilty Plea Colloquy and i
writing in the Written Guilty Plea Colloquy, that counsel did
not manipulate Defendant int
tendering a plea. Thus, Defendant's claim that his counsel's alleged
manipulation of
Defendant constitutes "unethical behavior or activity" on behalf
of an attorney who is
partisan of the police department has no substantive merit.
To the extent th
Defendant's allegations against plea counsel, a well -respected member of the Chester
County Public Defender's Office, of "unethical behavior or activity"
and/or "partial[ity] t
the police" relate to some other unidentified
.
conduct on the part of counsel, the
constitute undeveloped, generalized, boilerplate attacks
upon the integrity of couns I
without any factual substantiation. As such, they do not support a
claim for PCRA retie
Commonwealth v. Natividad, 938 A.2d 310 (Pa. 2007)(a petitioner under the PCRA mu t
exhibit a concerted effort to develop his ineffectiveness
claim and may not rely on
boilerplate allegations of ineffectiveness).
For all of the foregoing reasons, the issues Defendant
raised in hi
November 4, 2015 PCRA Petition have no merit and will not support
a claim for PCR
relief.
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1925a.docx
B. Claims raised in March 4, 2016 Letter
The first claim Defendant raised in his March
4, 2016 pro se letter to th
Court is that he is actually innocent of the crimes to
which he pled on July '17, 2015. W
have already addressed the merits of this
claim above. We would respectfull
incorporate herein by reference and refer this Honorable
reader to that portion of ou
Opinion above that explains the reasons why we
conclude that Defendant's assertion tha
he is actually innocent of these crimes has no
merit and does not warrant PCRA relief.
Defendant's second claim repeats his challenging to the
accuracy of th
identification evidence against him. Again, as we noted
above, Defendant waived hi
right to challenge the identification evidence against
him by tendering a negotiated plea.
See Commonwealth v. Reichle, 589 A.2d 1140 (Pa Super. 1991)(generally, a
plea o
guilty amounts to a waiver of all defects and
defenses except those concerning th
jurisdiction of the court, the legality of the sentence, and
the validity of the plea). (Se
also Written Guilty Plea Colloquy, 7/17/15, at 6,
para. 20). We would respectful)
incorporate herein by reference and refer this Honorable reader
to that portion of ou
Opinion above which addresses Defendant's waiver of
his right to file pre-trial motions.
We respectfully recommend for the reasons
aforestated that Defendant'S Claim has n
merit and does not warrant PCRA relief.
The third issue Defendant raised in his March 4,
2016 pro se letter to th
Court is that there is exculpatory evidence in this case
that was not presented to th
Court. This letter must be read in conjunction with the
allegations he raised in his April 6,
2016 letter to PCRA Counsel that was appended
to his April 20, 2016 motion for a
extension of time in which to file is Rule 907(1) Response. Therein, Defendant
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delineates the basis of his claim. He claims that a cigarette butt was recovered from th
scene of one of the crimes. He states that Detectives
swabbed his mouth for DNA an
tested the results. He states that the results came back
negative. Defendant claims that
this means he could not have been the perpetrator of
the robberies. Defendant claim
that his plea counsel knew the results of the DNA
test "after the Chester Count
Detectives retrieved a warrant for the DNA swab." (Deft.'s Emergency Motion for
Enlaregment [sic] of Time, 4/20/16, Attached Letter to PCRA
Counsel dated April
2016, at 2). Importantly, Defendant is not claiming that the Commonwealth
withhel
exculpatory evidence from him,
Defendant is mistaken about the exculpatory value of the
evidence h
describes. At best, the lack of a match between his DNA and
the DNA on the cigarett
butt means that he probably did not smoke that particular
cigarette. It does not mean h
did not commit any of the three (3) armed robberies to
which he pled. The factu I
predicate for these crimes do not include descriptions of
the perpetrator smoking
c.) cigarette. The evidence Defendant claims exonerates him is not
exculpatory. Had hi
DNA been found on the cigarette, that would have made the
Commonwealth's case eve
stronger, which is probably why his DNA was tested. However,
the fact that his DNA wa
not found on the cigarette butt does nothing to
exonerate him from the commission of
these crimes.
Further, as we already stated, Defendant tendered a negotiated guilty
plea.
A guilty plea is an acknowledgement by a defendant that he
participated in the commission of certain acts with a criminal
intent. He acknowledges the existence of the facts and the
intent. The facts that he acknowledges may or may not
be
within the powers of the Commonwealth to prove. However,
it
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the plea of guilt admits that the facts and intent
occurred; and
is a confession not only of what the
Commonwealth might
prove, but also as to what the defendant knows
to have
happened.
I
A guilty plea is not a ceremony of
innocence, it is an
occasion where one offers a confession of guilt.
If a
defendant voluntarily, knowingly, and intelligently wishes to
acknowledge facts that in themselves constitute an 'offense,
that acknowledgement is independent of the
procedures of
proving or refuting them. How they would be
proved, what
burdens accompany their proof, what privileges exist to
avoid
their proof, what safeguards exist to determine their
accuracy,
and under what rules they would be determined,
by whom and
how, are irrelevant. The defendant is before the
court to
acknowledge facts that he is instructed constitute a crime. He
is not there to gauge the likelihood of their
proof, nor to weigh
them in the light of the available procedures for their
proof.
He is there to voluntarily say what he
knows occurred,
whether the Commonwealth would prove them or not, and
that he will accept their legal meaning and
their legal
consequences.
Commonwealth v. Watson, 835 A.2d 786, 796-97 (Pa. Super. 2003)(emphasis
omitted).
Defendant admitted_that he committed_the crimes which
were_the_subject of the ple
colloquy. His plea was knowingly, voluntarily and
intelligently entered. Assuming fo
purposes of argument that the cigarette butt evidence was
exculpatory, Defendant neve
mentioned the existence of the cigarette butt, the DNA test, or
the lack of a match in th
results to the Court. He did not assert his innocence in any way.
Because the lack of a DNA match on the cigarette butt is not exculpato
and because Defendant tendered a knowing,
voluntary and intelligent plea,
respectfully submit that the third issue Defendant raised in his March
4, 2016 pro s
letter to the Court has no merit and does not warrant PCRA
relief.
s:\admin\sarcione\Nieves Noel 1st PCRA 1925a.docx
The fourth issue Defendant raised in his March 4, 2016 pro se letter to th
Court claims that counsel was ineffective for advising Defendant that if he did not plea
he would be convicted and face thirty (30) to sixty (60) years in prison and that he shoul
just "take the deal" so that he will still be able to see his son. Defendant claims that as
result of this advice, he "got scared" and "gave up" on himself and accepted the pie
because he felt like no one was "on [his] side" in spite of all of the evidence that h
alleged demonstrates his actual innocence. (Deft.'s Letter to the Court, 3/4/16, at 1
Defendant's claims have no merit.
Plea counsel was not ineffective for advising the Defendant that if he wen
to trial, it was likely that he would be convicted. The Commonwealth's case was stron
Plea counsel has a duty to advise Defendant of his options, including the likelihood of hi
success if he chooses to go to trial. Plea counsel was not ineffective for giving th
Defendant his professional opinion in this regard. His advice to Defendant was n
outside the parameters of that which is expected of attorneys practicing criminal la
See Commonwealth v. Wah, 42 A.3d 335 (Pa. Super. 2012)(where the defendant enter
his plea on the advice of counsel, the voluntariness of the plea depends on wheth
counsel's advice was within the range of competence demanded of attorneys in criminal
cases).
With respect to the amount of time plea counsel advised Defendant he
could face, plea counsel's advice was likewise accurate. Indeed, the Court advised th
Defendant on the record in the Verbal Guilty Plea Colloquy that the maximum sentenc
he could receive on each offense to which he was tendering his plea was twenty (2
years in prison. (Verbal Guilty Plea Colloquy, 7/17/15, N.T. 12). The Court stated, "If yo
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were maxed out, you could receive sixty years in prison and seventy-five thousand
dollars in fines." (Verbal Guilty Plea Colloquy, 7/17/15, N.T. 12). Defendant's Prio
Record Score is RVOC. (Verbal Guilty Plea Colloquy, 7/17/15, N.T. 13). Further, the firs,
and second pages of Defendant's Written Guilty Plea Colloquy set forth the maximun
penalties Defendant faced if he went to trial and was convicted on each of the crimes t
which he pled. (Written Guilty Plea Colloquy, 7/17/15, at 1-2). The Written Guilty Ple
correctly identified these maximum penalties as twenty (20) years' confinement pe
Robbery, with maximum fines of $25,000.00 each as well. See 18 Pa. C.S.A.
1103(1)(Sentence of imprisonment for Felony of the First Degree). The maximum
recited were only for the offenses to which Defendant tendered his plea. Defendant wa
charged in the Informations at both dockets with many, many more offenses than th
three (3) Robberies to which he pled. Plea counsel has a duty to advise Defendant of hi
exposure in the event he chooses to go to trial and is convicted. There was nothin
inaccurate, misleading, coercive or manipulative about plea counsel's advice to th
Defendant that if he were convicted on the three offenses to which he was being asked t
plead alone he would face thirty (30) to sixty (60) years in prison. It is a faci that on thos
three (3) Robberies alone, Defendant could have received that much time in prison. It i
certainly understandable that Defendant might become "scared" and decide tha
accepting the Commonwealth's plea offer for two concurrent terms of ten (10) years i
prison followed by a ten (10) year probationary tail would be preferable to spending thirt
(30) years in prison, particularly in light of the strength of the Commonwealth's case. It i
also understandable that a desire to see his son grow up might influence his decisio
concerning the advantages of taking the plea. See Commonwealth v. Watson, 835 A.2
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786 (Pa. Super. 2003)("A defendant may plead guilty for any reason: to shield other
avoid further exposure, to diminish the penalty, to be done with the matter, or any secret
reason that appeals to his needs."). However, that does not make counsel's performanc
deficient. Counsel was not ineffective in any way for advising Defendant that he face
thirty (30) to sixty (60) years in prison if he went to trial on the charges for which th
Commonwealth was seeking the plea, or for pointing out to Defendant, if indeed he di
so, that a sentence of ten (10) years in prison would be more beneficial to him in terms
his ability to parent his son than would a sentence of at least thirty (30) consecutiv
years' incarceration. Counsel has a duty to advise Defendant of the advantages an
disadvantages of his respective options. As Defendant acknowledged in his Writte
Guilty Plea Colloquy, "I further agree that, although I have been assisted by my attorney,
it is my own decision to enter the plea that I [am] making here today." (Written Guilt
Plea Colloquy, 7/17/15, at 9, para. 41). Defendant's fourth claim of ineffective assistanc
of counsel has no substantive merit and will not support a claim for PCRA relief.
Finally, in Defendant's March 4, 2016 pro se letter to the Court, Defendant claime
that his guilty plea was not knowingly, voluntarily or intelligently entered becaus
contrary to what he advised the Court on the record at the Verbal Guilty Plea Collo4
he was on medication that impaired his ability to understand what he was doing and t
make rational judgments. This contention has no merit. The record reflects that durin
the Verbal Guilty Plea Colloquy, the following exchange took place.
THE COURT: And are you presently under the influence of
any drugs, alcohol or medicine?
NOEL NIEVES: No.
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THE COURT: And do you suffer from any mental illness or
anything else that would cause you not to understand me?
NOEL NIEVES: No.
(Verbal Guilty Plea Colloquy, 7/17/15, N.T. 3). Defendant claims that he lied at th
Verbal Guilty Plea Colloquy at the instruction of plea counsel. As we pointed out in ou
July 22, 2016 Order issued in response to his July 18, 2016 letter requesting free copie
of his transcripts and court records, to prove that his plea was not voluntary due to hi
having been under the influence of mind -altering medication, "the longstanding rule o
Pennsylvania law is that a defendant may not challenge his guilty plea by asserting th It
he lied under oath, even if he avers that his counsel induced the lies." (Order, 7/22/16,
1)(Sarcione, J.)(citing Commonwealth v. Yeomans, 24 A.3d 1044 (Pa. Super. 2011),
reargument denied (August 18, 2011)). Further, this Court had the opportunity t
observe and speak with the Defendant on the record during the Guilty Plea Colloquy an
there was nothing about the. Defendants demeanor or responses that suggested to th
Court that his cognition was impaired in any way.__The final claim Defendant raised in hi
March 4, 2016 pro se letter to the Court has no merit and, like the others, will not suppo
P claim for PCRA relief.
C. Claims raised in April 20, 2016 "Emergency Motion for Enlareqment (sic] of Time"
The first claim Defendant raised in his Emergency Motion for Enlar[ge]ment of
Time, which he mailed to the Court on April 20; 2016, aside from his request for aril
extension of time in which to file his Rule 907(1) Response, which was granted, albeit
for the full amount of time that the Defendant requested, is that PCRA Counsel'
stewardship of his PCRA Petition was deficient in that PCRA Counsel failed t
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s: \admin \sarcione \ Nieves Noel 1't PCRA1925a.docx
adequately investigate Defendant's claims or to meet or speak personally
with th
Defendant "to discuss the status of Defendant's guilty plea colloquy." (Deft.'s
Emergenc
Motion, 4/20/16, at 1). As we have already demonstrated, none of the
issues Defenda
raised heretofore have any substantive merit. PCRA Counsel's conclusion
in his Janua
27, 2016 Petition for Leave to Withdraw, as supplemented by his
March 17, 2016 lette
that Defendant's PCRA claims have no merit is supported by the facts
of record an
relevant law and there is no basis upon which to impugn PCRA counsel's
stewardship a
of April 20, 2016,
The remainder of the issues raised in Defendant's April 20, 2016
"Emergenc
Motion for Enlar[ge]ment of Time" are found in the letter he wrote to
counsel dated Apr
6, 2016 which he appended to his Emergency Motion. Therein, Defendant reiterates
hi
claim of actual innocence, his challenge to the accuracy of the identification
evidenc
against him, repeated his challenge to the alleged defects in the execution of
the searc
warrants issued for his residence, renewed his claim concerning the
cigarette butt, an
again asserted that his plea was not knowingly, voluntarily or
intelligently entere
because he was heavily medicated at the time he was colloquized. We have
addresse
all of these issues above and would respectfully incorporate herein
by reference and refer
this Honorable reader to those portions of our present Opinion that
address these matter
above.
The only new claim Defendant raised was a challenge to the effectiveness of ple
counsel for plea counsel's alleged failure to call a witness Defendant only
identifies a
"Charlie" who, according to the Defendant, would have established an alibi for th
Defendant for the October 15, 2014 Robberies. Defendant attached to his Motion th
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letter written to him by plea counsel on February
25, 2015 indicating that plea counsil
spoke to "Charles" and that "Mt was a
favorable discussion, but I would prefer to tank
about it in person rather than by letter." (Letter
from Peter Jurs, Esq. to Defendant date
February 25, 2015, at 1). Plea counsel's letter does
not indicate that Charles/Charlie wa
consulted about an alibi nor does it state, as
Defendant suggests, that plea couns
represented to Defendant that he intended to call
Charles/Charlie to "prove [Defendant's
innocence" at trial. (See Deft.'s Letter to PCRA
Counsel dated April 6, 2016 at para. 2)
Indeed, in plea counsel's subsequent letter to
PCRA Counsel dated August 15, 201
plea counsel stated, "[Tjhere were no viable
defenses." (See PCRA Counsel's Letter t
Court dated August 16, 2016, attached Letter from
Plea Counsel dated August 15, 201
at 1). Notwithstanding plea counsel's apparent awareness of
"Charles/Charlie" or th
dubious relevance of this witness to Defendant's case
in light of plea counsel's Augus
15, 2016 letter, Defendant's argument
overlooks the fact that he elected to plead guilty
admitting to the facts of the crimes and the criminal
intent, and declining to advance any
alibi defense against the charges to which he
pled. As we stated earlier,
A defendant may plead guilty for any reason: to
shield others,
avoid_ further exposure, to diminish the penalty,
.to be done_
with the matter, or any secret reason that appeals
to his
needs. What is generally and most objectively
accepted is
that a plea is offered to relieve conscience, to set the
record
straight and, as earnest of error and repentance, to accept
the
penalty.
Commonwealth v. Watson, 835 A.2d 786 (Pa. Super. 2003). By
pleading guilty as part of
a negotiated agreement with the Commonwealth, Defendant opted to acceptI
responsibility for the crimes charged and obviated the need for
counsel to call witnesse
or advance an inconsistent alibi defense on his
behalf. See Commonwealth v. Casne
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sAadmin \sarcione \Nieves Noel PCRA 1925a.docx
461 A.2d 324 (Pa. Super. 1983)(no
ineffective assistance of counsel for failure t
investigate possible alibi witnesses where plea counsel
testifies that defendant never tol
him he was innocent but instead "virtually
admitted the crime and said he would plead.'
Here, plea counsel did take steps to investigate
the potential alibi, but as his letter t
PCRA Counsel dated August 15, 2016 indicates,
plea counsel ultimately determined th .t
no viable alibi defense existed. Moreover,
Defendant has not alleged, and none of hi
"exhibits" establish, that this proposed witness would
have been available or willing t
testify on his behalf at any trial. See Commonwealth v. Pander, 100 A.3d 626
(P
Super. 2014), appeal denied, 109 A.3d 679 (Pa.
2015)(elements of test for ineffectiv
assistance of counsel with respect to claim that counsel
failed to investigate or call
witness). For all of these reasons, we conclude that
Defendant's claim that plea counsel
was ineffective for failing to investigate or call an
alibi witness has no merit and will n
support a claim for PCRA relief.
Because none of the claims Defendant incorporated into
his "Emergency Motio
for Enlaregment [sic] of Time" have any merit,
Defendant is not entitled to PCRA relief.
D. Claims raised in June 20, 2016 Rule 907(1) Response
The first claim Defendant raised in his June 20, 2016 Rule
907(1) Response is th .t
PCRA Counsel's stewardship was deficient in that PCRA
Counsel failed to adequatel
investigate Defendant's issues, failed to remedy the defects in
Defendant's Petition, an
failed to adequately meet or speak with the
Defendant to discuss the status of th
Defendant's PCRA Petition. As we agreed with PCRA Counsel,
for all of the reasons s t
forth above, that none of Defendant's issues have any
substantive merit, a circumstanc
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Noel 151 PCRA 1925a.docx
that does not lend itself to remedy,
Defendant's claims of ineffective stewardship
on th
part of PCRA Counsel have no
merit and do not warrant PCRA relief.
The second claim Defendant
raised in his June 20, 2016 Rule 907(1)
Response i
that his plea counsel coerced his plea
by advising him (a) that his
chances of an acquitt I
if he went to trial were "close to
0", (b) that Defendant, as a
once convicted Felon, woul
not be entitled to the presumption
of innocence, and (c) that, if
convicted, Defendant
would be sentenced under the
"Repeated Offender Act" [sic) to a
mandatory thirty (30) t
sixty (60) years in prison. We
have already addressed the fact
that the recor
demonstrates that plea counsel did not coerce
Defendant into accepting a plea. We hay
also already addressed the fact that
plea counsel's alleged advice to
Defendant that, if h
went to trial, he would likely be
convicted or have a "close to 0" chance
of acquittal, i
light of the strength of the
Commonwealth's case and plea counsel's
conclusion, after
investigation, that Defendant had no viable
defenses, was within the range of
competence demanded of attorneys who
practice criminal law. See
Commonwealth i.
Wah, 42 A.3d 335 (Pa. Super.
2012)(where the defendant enters his plea on
the advic
of counsel, the voluntariness of
the plea depends on whether counsel's
advice was withi
the range` of competence-
demanded of attorneys in criminal cases).
We woul
respectfully incorporate herein by reference
and refer this Honorable reviewing
Court t
those portions of our present Opinion
which address these claims above
and submit, for
all of the reasons
aforestated, that these claims of counsel's
ineffectiveness have n
merit and do not warrant PCRA
relief.
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As for Defendant's claim that plea counsel was ineffective for
advising Defenda
that, as a convicted Felon, he would not be entitled to the
presumption of innocence,
Defendant's claim is belied by the record. At the. Verbal Guilty Plea Colloquy, this
Cou
asked Defendant if he reviewed the Written Guilty Plea Colloquy with his
plea couns
before he signed it. (Verbal Guilty Plea Colloquy, 7117/15, N.T. 11).
Defendant replie
"Yes." (Verbal Guilty Plea Colloquy, 7/17/15, N.T. 11). The Written Guilty Plea
signed b
the Defendant advises the Defendant at paragraph 25 that
In order to be convicted, I would have to be proven
guilty
beyond a "reasonable doubt." A reasonable doubt is a doubt
which would cause a person of reasonable prudence to
hesitate before acting in a matter of importance to him or
herself. I am presumecf innocent, and if the Commonwealth
cannot prove me guilty beyond a reasonable doubt, l must be
set free on these charges.
(Written Guilty Plea Colloquy, 7/17/15, at 7, para. 25). Defendant signed his initials in th
line provided to the right of this paragraph and signed his name to
the bottom of th
page. (Written Guilty Plea Colloquy, 7/17/15, at 7). Thus, there is no merit t
Defendant's contention that his plea counsel did not advise him of the
presumption
innocence or advised him that he would not be entitled to the presumption of
innocenc
33This Is the first claim we Identified in our July 22, 2016 Order directing PCRA
Counsel to review Defendant's Rule
907(1) Response and pro se letter dated July 18, 2016. We stated in our July 22,
2016 Order,
PCRA Counsel shall review both Defendant's Rule 907(1) Response and
Defendant's pro letter dated July 18, 2016 and advise the Court In writing
se
within thirty (30) days of the date of this Order as to whether Defendant Is
entitled to an evidentiary hearing on the following Issues: (a) whether plea
counsel misadvised Defendant of the applicable law (see Rule 907(1) Response,
6/20/16, at 2 ((Reason -1111.)"
(Order dated July 22, 2016, at 1).
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because of his prior conviction. Plea counsel, in his letter to PCRA Counsel
date
August 15, 2016, specifically states
In my discussions with Mr. Nieves, I never
told him that
because of prior convictions he lost the presumption
of
innocence under the law. Mr. Nieves, like any
defendant
charged in a criminal matter, had the presumption
of
innocence up until the point he plead guilty and if asked
stated
as such[.]
(PCRA Counsel's Letter to Court dated August 16,
2016, attached Letter from Ple
Counsel to PCRA Counsel dated August 15, 2016).
Furthermore, at the beginning of th
Verbal Guilty Plea Colloquy, this Court asked Defendant
on the record in open cou
"And do you understand, young man, that you're
presumed to be innocent, you have th
right to a jury or non -jury trial?" (Verbal Guilty Plea Colloquy, 7/17/15, N.T. 4).
Defendant replied, "Yes, sir." (Verbal Guilty Plea
Colloquy, 7/17/15, N.T. 4). Defendan
was advised in writing and orally that the
presumption of innocence applied to him an
his claim to the contrary is belied by the record
and, quite frankly, patently absurd.
Finally; with respect to Defendant's_claim that
plea_counsel advised him that if,h
was convicted at trial he would be sentenced to a
mandatory thirty (30) to sixty (60) year
under the "Repeated Offender Act" [sic], this Court asked
plea counsel on the record
open court, in front of the Defendant, whether there
were any mandatories applicable to
this case, to which plea counsel replied, "No,
there are none." (Verbal Guilty Ple
Colloquy, 7/17/15, N.T. 14). The prosecutor stated that even
if there were mandatorie
involved, "the mandatory would be the guideline range",
due, as the prosecute
explained, to Defendant's status as an RVOC, (Verbal Guilty Plea Colloquy, 7/17/1
N.T. 13-14). Plea counsel, stated on the
record that he went over this with the Defendant
- 35 -
s:\admin\ sarcione \ Nieves Noel 1" PCRA 1925a.docx
"[s]everal times." (Verbal Guilty Plea Colloquy, 7/17/15,
N.T, 14-15). Defendarit
acknowledged on the record, as we
discussed earlier, that no extrajudicial
threats Jr
promises were made to him to induce him
to plead guilty. (Verbal Guilty Plea
Colloqu
7/17/15, N.T. 11; Written Guilty Plea
Colloquy, 7/17/15, at 6, paras, 17, 18). For
all
these reasons, we conclude that
Defendant's claim that plea counsel advised
him that f
he went to trial and was convicted
he would receive a mandatory thirty
(30) to sixty (6
years under the "Repeated Offender
Act" [sic] is without merit and does
not warra
PCRA relief.
In his Rule 907(1) Response, Defendant again raised
the issues concerning th
execution of the search warrant at his
residence4 and his allegedly medicated statu
during the guilty plea colloquy. With
respect to the search warrant issue, we hay
already addressed our conclusion that
Defendant waived his right to contest th
execution of the search warrant by
tendering a negotiated guilty plea. Reichle, supr
To this reasoning we would only add
the following. Defendant claimed that
the executio
of the search warrant was defective
because the police only gave Defendant's
wife, wh
is not the homeowner, according to
the Defendant, a "quick look -glance" at
the warm t
after ordering Defendant and his family
to vacate the premises and because
th
Detectives conducted the search while
Defendant, who claims to be the sole homeowne
was not present in the home. The acts
of which Defendant complains, even if
they di
occur as he describes them; are not
violations of the Rules of Criminal Procedure, se
Pa. R.Crim.P. 207, 208, but even
if they were, technical violations
of the Rules
4
MIS is the second Issue we asked PCRA
Counsel to address In our July 22, 2016
from that paragraph of Defendant's Rule remand Order. Thls Issue derives
907(1) Response Identified by the
907(1) Response, 6/20/16, at 2 Defendant as "Reason -111". (See Rule
("Reason lin Order dated July 22, 2016).
sAadmin \sarcione\Nieves Noel lst PCRA 1925a.docx
P.
Criminal Procedure do not warrant application of the Exclusionary Rule. Se
Commonwealth v. Ruey, 892 A.2d 802 (Pa. 2006)(violations of the
Rules of Crimin
Procedure relating to the issuance and execution of
search warrants require Suppressio
only when the violations assume constitutional
dimensions and/or substantially prejudic
the accused). The defects alleged here are
neither of constitutional dimension nor di
they substantially prejudice the. Defendant.
As we indicated above, Defendant, in his Rule
907(1) Response, renewed hi
contention that his plea counsel induced him to lie
about his mental health an
medication status at the guilty plea colloquy by,
according to Defendant, instilling int
Defendanfs thought process "subliminal suggestion." (See Deft.'s Rule 907(1
Response, 6/20/16, at 2, para. IV). Again, a Defendant may
not lie under oath and the
claim that his lies entitle him to PCRA relief, even if he
asserts that his lies were induce
by counsel. Yeomans, supra. Defendant's averment that counsel induced his lie
through "subliminal suggestion" is, as his argument
regarding his Public Defender ple
counsel's alleged misrepresentation concerning the
applicability of the presumption o
innocence, plainly absurd. Further, this Court had the
opportunity to observe Defendant
and speak with him on the record and there was
nothing about Defendant's demeanor or
responses that suggested to the Court that his cognition was
impaired in any way.
Defendant next claimed in his Rule 9070) Response that his plea
counsel insiste
that "[Defendant] and his family should not question or
attempt to interfere with hi
methods for they know nothing of the legal ramifications at work and
to simply rely upo
his legal expertise because he ([plea counsel]), must
do what's necessary to apiese [si
both [Defendant] and the Commonwealth." (Deft.'s Rule
9070) Response, 6/20/16, at
(37-
sAadmin \sarcione\Nieves Noel let PCRA
1925a.docx
para. "A"). Defendant claims that counsel's
alleged refusal to brook dissension from hi
advice is a violation of Lefler v, Cooper, 132
S.Ct. 1376 (U.S. Mich. 2012) and Missouri
Frye, 132 S.Ct. 1399 (U.S. Mo. 2012), cert.
denied, 132 S.Ct. 1789 (U.S. Mo. 2012
(Deft.'s Rule 907(1) Response, 6/20/16, at 3,
para. "A"),
In Lefler, supra, the defendant lost a
plea offer based on counsel's advice to reject
the plea and go to trial. Lefler, supra. The United States Supreme
Court held that th
Defendant established ineffective assistance of
counsel with regard to counsel's advic
to go to trial and reject the plea
because counsel's advice was based on counsel'
incorrect understanding of a point of law. Id. The
United States Supreme Court held tha
a defendant's Sixth Amendment right to counsel extends to
the plea bargaining proces
and that during plea negotiations,
defendants are entitled to the effective assistance if
competent counsel.
In Missouri v. Frye, 132 S.Ct. 1399 (U.S. Mo. 2012), cert.
denied, 132 S.Ct. 178
(U.S. Mo. 2012), the defendant lost two
favorable plea offers because his counsel faile
to communicate them; he later pled open
and received a heavier sentence than what ha
previously been offered by the Commonwealth.
Missouri v. Frye, 132 S.Ct. 1399 (U.
Mo. 2012), cert. denied, 132 S,Ct, 1789 (U.S.
Mo. 2012). The United Slates Siiprem
Court held that defense counsel has a duty to
communicate formal offers from th
prosecution to accept a plea on terms and conditions
that may be favorable to th
accused. Id.
In the matter sub judice, there is no question that counsel
advised Defendant f
the Commonwealth's plea offer. Defendant accepted the plea offer. Nor is there an
question that counsel's advice to accept the plea
was a reasonable strategy designed t'
- 38 -
sAadmin \sarcione \Nieves Noel 15' PCRA 1925a.docx
effectuate Defendant's interests. The Commonwealth had a very strong case against th
Defendant, Defendant had no viable defenses, and Defendant faced considerabl
exposure to at least thirty (30) to sixty (60) years in prison if he went to trial only on th
offenses that were the subject of the plea agreement. Counsel's actions here do n
violate either Lefler, supra or Missouri v. Frye, supra.
Defendant appears to be relying on an argument that may be viewed as th
converse of Lefler, supra and Missouri v. Frye, supra, namely, that if counsel has a duty
to communicate plea offers and give competent advice about whether to accept
them,
counsel has a corollary duty to allow Defendant to question counsel's advice and to rejeot
the plea offer if that is the Defendant's wish. Defendant claims that it is this converse o
corollary duty that plea counsel here violated. However, at all times during his guilty ple
colloquy, Defendant advised the Court that he had no questions (Verbal Guilty Ple
Colloquy, 7/17/15, N.T. 11, 15) and he wished to enter a plea of guilty (Verbal Guilty Ple
Colloquy, 7/17/15, N.T. 5, 7-8, 10, 12; Written Guilty Plea Colloquy, 7/17/15, at 5, para
4, 5); he did in fact enter a plea of guilty (Verbal Guilty Plea Colloquy, 7/17/15,
N.T. 5, ;
Written Guilty Plea Colloquy, 7/17/15, at 5, paras. 4, 5) and advised the Court that h
understood that his plea meant that the Court would'freat him as having committed th
crimes that were the subject of the plea bargain. (Verbal Guilty Plea Colloquy, 7117/1
N.T. 7-8, 10). Defendant advised the Court both orally and in writing that he was able t
work with his counsel, that he was satisfied with counsel's services, and that n
extrajudicial threats or promises were made to him to induce him to plead guilty. (Verb .I
Guilty Plea Colloquy, 7/17/15, N.T. 10, 11; Written Guilty Plea Colloquy, 7/17/15, at ,
pares. 16-18, 39-41). He acknowledged that, while he had been assisted in his decisio
..-2----.
z:::-L 39 )-
1:
sAadmin\sarcione \Nieves Noel PCRA
1.5` 1925a.docx
by counsel, it was his own
decision to enter the plea that he
tendered on July 17, 201
(Written Guilty Plea Colloquy, 7/17/15,
at 6, para. 41). As we stated
before, Defendant
may not represent one position to the
Court during a guilty plea colloquy and
then try t
obtain PCRA relief by asserting that what
he represented to the Court at his
colloquy wa
a lie. Yeomans, supra. Defendant's Lauer v. Cooper, supra/Missouri v. Frye, sups
argument has no merit and does not warrant
PCRA relief.
Next, Defendant contends that his
plea counsel did not "'make an
independe t
examination of the facts, curcumstances [sic],
pleadings and laws involved and then offer
his/her informed opinion as to what plea
or defence [sic] should be
entered." (Deft.'
Rule 907(1) Response, 6/20/16, at
3, para. "D")(quoting Von
Moltke v. Gillies, 68 S.0
316 (U.S. Mich. 1948)). Defendant
cites Von Moltke v. Gillies, 68 S.Ct.
316 (U.S. Mic
1948) in support of his claim. Von Moltke,
supra is a somewhat unique case with
peculi r
facts. In Von Moltke, supra, a German
national living in the United States was
charge
with Conspiracy to violate the
Espionage Act of 1917 by allegedly agreeing
with twent
three (23) other people to collect and
deliver military secrets to the Germans
durin
World War 11. Von Moltke v. Gillies, 68
S.Ct. 316 (U.S. Mich. 1948). The
Defendant wa
not provided with counsel. Id. In
tendering her plea, she relied on legal
advice provide
to her by an F.B.I. lawyer
-agent, indisputably a representative
of the Feder .l
Government, the opposing party. Id. When she
later challenged the validity of her ple
,
the United States Supreme Court
held that "[a] challenge to a plea of
guilty made by a
indigent defendant, for whom no lawyer has
been provided, on the ground that the pie
was entered in reliance upon advice
given by a government lawyer-agent,
raises seriou
constitutional questions." Von Moltke v. Gillies,
68 S.Ct. 316 (U.S. Mich. 1948).
Th
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United States Supreme Court reversed and
remanded the matter for a determination o
whether the Defendant validly waived her right to
counsel. Id. The facts in Von Moltk
supra are entirely distinguishable from the
facts of the present case, wherein th
Defendant was provided with an attorney from
the Chester County Office of the Publi
Defender to represent him in connection with
his pre-trial and plea proceedings. W
would respectfully submit that the peculiar
factual distinctiveness of Von Moltke, supr
renders that case inapposite to the present
matter.
Nevertheless, the Von Moltke, supra case does
articulate the proposition for whic
Defendant cited it, but that does not mean that
the Defendant is entitled to relief. Unlik
the Von Moltke, supra case, Defendant was
appointed free counsel entirely devoted t
his cause who did investigate the
facts, circumstances, pleadings and law
and wh
formed a learned opinion as to what plea should
be entered in light of what he termed
"strong" case on the part of the
Commonwealth, no viable defenses on the part of th
Defendant, and Defendant's extensive exposure
to significant jail time if Defendant went
to trial and were convicted on even a
few of the charges set forth in the
Information
which he reasonably advised the Defendant
was a likely outcome based on the strengtl
of the Commonwealth's case and the
lack of any viable defenses available to thi
Defendant. Plea counsel satisfied the concerns
expressed in Von Moltke, supr
assuming for purposes of argument that Von
Moltke, supra has any application to th
matter sub judice. Defendant's claim to the
contrary is without merit.
Defendant also claimed in his Rule 907(1)
Response that his plea counsel did n t
inform him of his basic sentencing liabilities
and other considerations so as to enable hi
to make an informed decision about
whether to accept or reject the Commonwealth'
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plea offer. However, this Court asked plea
counsel whether he had reviewed
with
Defendant the Sentencing Guidelines
applicable to the crimes for which he
was tendering
the plea. (Verbal Guilty Plea
Colloquy, 7/17/15, N.T. 14).
Counsel advised the Court o
the record, in front of the
Defendant, that he had done so
"[s]everal times." (Verbal Guilt
Plea Colloquy, 7/17/15, N.T.
15). When the Court then
asked the Defendant, "Do yo
have any questions at all?",
Defendant replied, "No." (Verbal
Guilty Plea Colloqu
7/17/15, N.T. 15). Plea counsel also
advised the Court that he reviewed
with Defenda
the amount of time he could
expect as part of his State Parole
hit, as he committed thes
crimes while on State Parole, and
whether his back time would be
served first or las
(Verbal Guilty Plea Colloquy,
7/17/15, N.T. 12). When we
asked Defendant, "Do yo
understand?", Defendant replied, "Yes,
sir." (Verbal Guilty Plea
Colloquy, 7/17/15, N.
12). Further, even if counsel
had not reviewed with
Defendant his sentencing exposur
and VOP time, we reviewed
these items with Defendant on the
record in open court a
part of his Verbal Guilty Plea
Colloquy. (Verbal Guilty Plea
Colloquy, 7/17/15, N.T. 11-
15). Defendant's claim that
he was not advised of his
basic sentencing liabilities an
other considerations so as to
enable him to make an informed
decision about whether t
accept or reject the
Commonwealth's plea offer is without substantive
-merit and does not
warrant PCRA relief.
Finally, in his Rule 907(1)
Response, Defendant requested that
this Court allow
further PCRA proceedings, appoint
new PCRA Counsel, and
vacate his conviction an
sentence pending the resolution of
whether Defendant's plea was
voluntary and "fre
from the influence of powerful
narcotics." (Deft.'s Rule 907(1)
Response, 6/20/16, at 5
Based on our determination that
none of Defendant's issues have
any substantive meri
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we would respectfully submit
that Defendant's request for
further PCRA proceedings,
new counsel, and the vacating of his
sentence are not warranted.
Because none of the issues Defendant
raised in his June 20, 2016 Rule
907(1
Response have any merit, we would
respectfully submit that his appeal of
those issue
should be denied and dismissed.
E. Claim raised in
Defendant's July 18, 2016 Letter to the
Court
The only claim that Defendant
raised in his July 18, 2016 pro se
letter to the Cou
is that his plea was not
knowingly, voluntarily and intelligently
tendered because he wa
under the influence of psychotropic
medication(s) on the day of the colloquy. We
hav
already addressed this claim above
and determined that it is without
merit. We woul
respectfully incorporate herein by
reference and refer this Honorable
reader to thos
portions of our present Opinion which
explain our rationale for rejecting this
claim.
F. Whether plea counsel was ineffective for
advising Defendant to plead quilty
In our July 22, 2016
remand Order, we identified the issue as
to whether ple
counsel was ineffective for advising
Defendant to accept the plea bargain
offered by th
Commonwealth. To all that we have said on
this issue above, which we incorporat
herein by reference and to which we
respectfully refer this Honorable reader, 'we
woul
add that given the strengths of the
Commonwealth's case, the lack of viable defense
available to the Defendant, and the
significant exposure he risked upon
conviction at trial,
plea counsel's advice to accept the
Commonwealth's offer of two (2) concurrent ten (10
year terms followed by ten (10) years
of consecutive probation, in
essence, an offe
requiring only ten (10) years in prison, was
within the range of competence
demanded o
attorneys who practice in the field of
criminal law. Commonwealth v. Wah, 42
A.3d 33
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1925a.docx
(Pa. Super. 2012). Plea counsel was not
ineffective for advising Defendant to accept th
Commonwealth's offer.
G. Validity of Defendant's Plea
To be valid, a guilty plea must be knowingly,
voluntarily and intelligently entere
Commonwealth v. Rush, 909 A.2d 805 (Pa. Super. 2006),
reargument denied (November
20, 2006). In order for a guilty plea to be constitutionally valid,
the plea colloquy mu t
affirmatively show that the defendant understood
what the plea connoted and it
consequences. Commonwealth v. Yeomans, 24 A.3d 1044 (Pa. Super. 2011
reargument denied (August 18, 2011). A defendant who
attempts to withdraw a guilt
plea after sentencing must demonstrate prejudice
on the order of manifest injustic
before withdrawal is justified. Commonwealth v, Yeomans, 24 A.3d 1044 (Pa. Supe
2011), reargument denied (August 18, 2011). A showing of manifest injustice may b
established if the plea was entered into involuntarily,
unknowingly, or unintelligentl
Commonwealth v. Yeomans, 24 A.3d 1044 (Pa. Super. 2011),
reargument denie
(August 18, 2011).
As the Pennsylvania Superior Court has
summarized,
Pennsylvania has constructed its guilty plea procedures in
a
way designed to guarantee assurance that guilty
pleas are
voluntarily and understandingly tendered. The entry
of a
guilty plea is a protracted and comprehensive
proceeding
wherein the court is obliged to make a specific
determination
after extensive colloquy on the record that a
plea is voluntarily
and understandingly tendered.
Commonwealth v. Yeomans, 24 A.3d 1044, 1046 (Pa. Super. 2011),
reargument denie
(August 18, 2011)(quoting Commonwealth v. Fluharty, 632 A.2d 312, 314 (Pa. Supe
1993)(citation omitted)). Where the record clearly demonstrates that a
guilty pie
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colloquy was conducted, during which it became evident that the defendant
understoo
the nature of the charges against
him, the voluntariness of the plea
is established.
Commonwealth v. Rush, 909 A.2d 805 (Pa. Super. 2006),
reargument denied (Novembe
20, 2006).
Rule 590 of the Pennsylvania Rules of
Criminal Procedure requires that a guilt
plea be offered in open court, and
provides a procedure to determine whether the
plea
voluntarily, knowingly, and intelligently
entered. Commonwealth v. Yeomans, 24
A.3
1044 (Pa, Super. 2011),
reargument denied (August 18, 2011).
See ais
Commonwealth v. Rush, 909 A.2d 805 (Pa. Super.
2006), redrgument denied (Novembe
20, 2006)(a court accepting a
defendant's guilty plea is required to conduct an
on -the
record inquiry during the plea colloquy).
Rule 590 does not prohibit the use of a
writtei
colloquy that is read, completed, signed by the
defendant, and made part of the record
the plea proceedings. Pa. R.Crim.P.
590, Comment. This written colloquy
would have t
be supplemented by some on -the -record oral
examination. Pa. R.Crim.P. 59
Comment.
As noted in the Comment to Rule 590,
at a minimum the trial court should ask
questions to elicit the following information: (a)
whether the defendant understands th
nature of the charges to which he or
she is pleading guilty or nolo
contendere; (b
whether there is a factual basis for the plea; (c)
whether the defendant understands th t
he or she has the right to trial by jury; (d)
whether the defendant understands that he or
she is presumed innocent until found
guilty; (e) whether the defendant is aware
of th
permissible range of sentences and fines for the
offenses charged; and (6) whether th
defendant is aware that the judge is not bound by
the terms of any plea agreemer
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1925a.docx
tendered unless the judge accepts
such agreement. Pa. R.Crim.P. 590, Commend;
Commonwealth v. Yeomans, 24 A.3d 1044 (Pa. Super.
2011), reargument denie
(August 18, 2011); Commonwealth v. Rush, 909 A.2d 805 (Pa. Super. 2006),
reargume t
denied (November 20, 2006). The
Comment to Rule 590 includes a seventh
propose
question that is only applicable when a
defendant pleads guilty to Murder generall
Commonwealth v. Yeomans, 24 A.3d 1044, 1047 n. 2 (Pa.
Super. 2011), reargume t
denied (August 18, 2011).
Reiterating and expanding on what we stated
above,
[i]n order for a guilty plea to be
constitutionally valid, the guilty
plea colloquy must affirmatively
show that the defendant
understood what the plea connoted and its
This determination is to be made by consequences.
examining the totality of
the circumstances surrounding the
entry of the plea. Thus,
even though there (may be] an
omission or defect in the guilty
plea colloquy, a plea of guilty will not
be deemed invalid if the
circumstances surrounding the entry of the plea
the defendant had a full
disclose that
understanding of the nature and
consequences of his plea and that he
knowingly and
voluntarily decided to enter the plea.
Commonwealth v. Yeomans, 24 A.3d 1044, 1047 (Pa. Super.
2011), reargument denie
(August 18, 2011)(quoting Commonwealth v. Fluharty, 632 A.2d 312, 314-15 (Pa. Supe
1993)(citations omitted)).
Our law presumes that a defendant who
enters a guilty plea
was aware of what he was doing. He
bears the burden of
proving otherwise.
The longstanding rule of
Pennsylvania law is that a
defendant may not challenge his guilty plea by
he lied while under oath, even if
asserting that
he avers that counsel
induced the lies. A person who elects to
plead guilty is bound
by the statements he makes in
open court while under oath
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and may not later assert grounds for withdrawing the plea
which contradict the statements he made at his plea colloquy.
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.
Commonwealth v. Yeomans, 24 A.3d 1044, 1047 (Pa. Super. 2011), reargument dente
(August 18, 2011)(guoting Commonwealth v. Pollard, 832 A.2d 517, 523-24 (Pa. Supe
2010)(citations omitted)). The law does not require that a defendant be completely
satisfied with the outcome of his decision to plead guilty, only that the plea be voluntary,
knowing and intelligent. Commonwealth v. Rush, 909 A.2d 805 (Pa. Super. 2006),
reargumenf denied (November 20, 2006).
A review of the record sub judice reveals that Defendant's plea was voluntaril
knowingly, and intelligently entered. A Verbal Guilty Plea was conducted with
Defendant on the record in open court, (See Verbal Guilty Plea Colloquy and Sentencin
Transcript, 7/17/15, N.T. 1-23). In addition, Defendant executed a comprehensiv
Written Guilty Plea Colloquy. (See Written Guilty Plea Colloquy, 7/17/15, 1-10). Th
record demonstrates that each of the mandatory six (6) areas of inquiry were explore
with this Defendant.
With respect to the first area of inquiry, whether Defendant understands the natur
of the charges to which he is tendering his plea, we asked Defendant, "Are you aware o
what you have been charged with?" (Verbal Guilty Plea Colloquy, 7/17/15, N.T. 3
Defendant replied, "Yes." (Verbal Guilty Plea Colloquy, 7/17/15, N.T. 3). We reviewe
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with the Defendant the elements of each
offense. (Verbal Guilty Plea Colloquy, 7/17/1
N.T. 9-10). We asked Defendant whether
he understood the elements of these offense
(Verbal Guilty Plea Colloquy, 7/17/15, N.T. 10).
Defendant replied, "Yes." (Verbal Guilt
Plea Colloquy, 7/17/15, N.T. 10). We asked
Defendant whether he had any question
about the elements of these offenses. (Verbal
Guilty Plea Colloquy, 7/17/15, N.T. 10
Defendant replied, "No." (Verbal Guilty Plea
Colloquy, 7/17/15, N.T. 10). In addition t
this oral colloquy, Defendant signed a
Written Guilty Plea Colloquy that set forth th
nature and elements of the offenses to which he
was tendering his plea. (Written Guilt
Plea Colloquy, 7/17/15, at 1-2). The Written
Guilty Plea Colloquy contained the followin
items.
1. I hereby enter a plea of guilty to the charges set
forth
on the cover pages.
[Is/] NN
2. I have read and understand the cover pages.
Vs/1 NN
4. I admit committing the crimes to which I am pleading
guilty.
j/s/1 NN
5. I acknowledge that the facts occurred as set forth on
page 2 of this form.
NN
15. Do you understand the charges against you? Vs/1 NN
(Written Guilty Plea Colloquy, 7/17/15, at 5-6).
Defendant signed his initials after eac
paragraph and signed his name at the bottom of
each page. (Written Guilty PIe
Colloquy, 7/17/15, at 5-6). Thus the first area of
mandatory inquiry is satisfied.
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-With respect to the second area of
mandatory inquiry, whether there was a factu
basis for the plea, as we demonstrated
in the beginning of this
Opinion, a factual basi
was recited for the plea. (Verbal Guilty
Plea Colloquy, 7/17/15, N.T. 4-10;
Written Guilty
Plea Colloquy, 7/17/15, at 2). Thus, the
second area of mandatory inquiry is
satisfied.
With respect to the third area of
mandatory inquiry, whether the Defendant
understands that he has the right to trial by jury,
we asked the Defendant at the beginnin
of the Verbal Guilty Plea Colloquy,
"And do you understand, young
man, that you'r
presumed to be innocent, you have the
right to a jury or non -jury trial?" (Verbal
Guilt
Plea Colloquy, 7/17/15, N.T. 4).
Defendant replied, "Yes, sir." (Verbal Guilty Ple
Colloquy, 7/17/15, N.T. 4). In addition, the Written Guilty Plea Colloquy advised th
Defendant that he "need not enter a plea of guilty, but may plead not guilty
and go to
trial." (Written Guilty Plea Colloquy,
7/17/15, at 6, para. 19). Defendant wrote
his initial
in the line provided to the
right of this paragraph and signed his
name at the bottom of thr
page. (Written Guilty Plea Colloquy,
7/17/15, at 6). Thus, the third area of
mandato
inquiry is satisfied.
With respect to the fourth area of
mandatory inquiry, whether the Defenda
understands that he or she is presumed
innocent until found guilty, we have alread
discussed how both counsel and this Court
advised the Defendant that he did indee
enjoy the presumption of innocence in
these matters. We would incorporate herein
b
reference and respectfully refer this
Honorable reviewing Court to those portions of
th
present Opinion which address this issue above.
We reiterate that we advised Defendant
of the presumption of innocence at the
beginning of the Verbal Guilty Plea Colloquy
when
we asked, "And do you understand,
young man, that you're presumed to be
innocen
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you have the right to a jury or non -jury trial?" (Verbal Guilty Plea Colloquy, 7/17/15, N.
4). Defendant replied, "Yes, sir." (Verbal Guilty Plea Colloquy, 7/17/15, N.T. 4). Th
Written Guilty Plea Colloquy advised the Defendant that
[WI order to be convicted, would have to be proven guilty
I
beyond a "reasonable doubt". A reasonable doubt is a doubt
which would cause a person of reasonable prudence to
hesitate before acting in a matter of importance to him or
herself. I am presumed innocent, and if the Commonwealth
cannot prove me guilty beyond a reasonable doubt, I must be
set free on these charges. f/s/j NN
(Written Guilty Plea Colloquy, 7/17/15, at 7, para. 25). Defendant signed his initials o
the line provided to the right of this paragraph and signed his name at the bottom of th
page. (Written. Guilty Plea Colloquy, 7/17/15, at 7). (See also PCRA Counsel's Letter t
the Court dated August 16, 2016 with attached Letter from Plea Counsel at para. 1
Thus, the third area of mandatory inquiry is satisfied.
With respect to the fifth area of mandatory inquiry, whether the Defendant wa
aware of the permissible range of sentences and/or fines for the offenses charged, w
advised Defendant on the record in open court of the maximum sentences and fines that
were applicable to the crimes for which he was tendering his plea as well as what hi
Statewide Sentencing Guidelines exposure would be. (Verbal Guilty Plea Colloquy,
7/17/15, N.T. 12-15). Plea counsel advised the Court that he had gone over thes
matters with the Defendant Isleveral times," (Verbal Guilty Plea Colloquy, 7/17/15, N.
12, 15). Defendant assured the Court that he understood. (Verbal Guilty Plea Colloqu ,
7/17/15, N.T. 12, 15). In addition, the Written Guilty Plea Colloquy executed by th
Defendant set forth the maximum penalties and fines applicable to the crimes for whic.
Defendant was tendering his plea. (Written Guilty Plea Colloquy, 7/17/15, at 1-2
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Defendant signed his name at the bottom of these pages. Also, as we demonstrate
above, Defendant placed his initials beside the paragraph of the
Written Guilty Ple
Colloquy which averred, "I have read and understand the cover
pages." (Written Guilt
Plea Colloquy, 7/17/15,. at 5). He also signed his name at the bottom of that pag
(Written Guilty Plea Colloquy, 7/17/15, at 5). Thus, the fifth area of mandatory
inquiry
satisfied.
With respect to the sixth area of mandatory inquiry, namely, whether the
defendan
was aware that the judge is not bound by the terms of any plea agreement
tendere
unless the judge accepts such agreement, the undersigned advised
Defendant on th
record in open court that "I'm not bound by the terms of this plea agreement
unless I
accept it. If I reject it, you may step down and withdraw your plea." (Verbal Guilty Ple
Colloquy, 7/17/15, N.T. 11). In addition, the Written Guilty Plea Colloquy advised th
Defendant,
The Court is not bound by the terms of the plea agreement
that I have entered into with. the Commonwealth on pages 3
and 4 of this form, but if the Court rejects it, I may withdraw
my plea of guilty and enter a plea of not guilty. [/s/j NN
(Written Guilty Plea Colloquy, 7/17/15,. at 8, para. 31). Defendant placed, his initials
in th
line provided to the right of this paragraph and signed his name at the
bottom of th
page. (Written Guilty Plea Colloquy, 7/17/15, at 8). Thus, the sixth area of mandato
inquiry is satisfied.
In addition to all of the areas of mandatory inquiry, our record
colloquy, both or -I
and written, inquired about Defendant's age, educational status and his ability
to rea,
write and understand the English language. (Verbal Guilty Plea Colloquy, 7/17/15,
N.
-51,.,
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et,
2-3; Written Guilty Plea Colloquy,
7/17/15, at 5). We learned that Defendant
was, at th t
time of the plea, twenty-nine (29) years old
and a graduate of Coatesville Area
Senior
High School. (Verbal Guilty Plea Colloquy, 7/17/15, N.T.
2-3; Written Guilty Ple
Colloquy, 7/17/15, at 5). We also explored, as we discussed
earlier infra, the issue
Defendant later raised in his PCRA Petition
and with which he attempted to
impugn th
validity of his plea.
The record demonstrates that Defendant
tendered his plea voluntarily, knowing'
and intelligently, He understood the nature of the
charges against him, what the ple
connoted, and its consequences. The record is
devoid of evidence of manifest injustic
Defendant's plea is constitutionally valid.
H. Claims raised in de facto Rule
1925(b) Statement
The first few claims Defendant raised in
his de facto Statement of Matter
Complained of on Appeal, which was
attached to his Notice of Appeal, purport t
challenge the stewardship of PCRA Counsel
for PCRA Counsel's alleged failure t
adequately investigate Defendant's PCRA claims,
failure to remedy the defects i
Defendant's PCRA Petition and failure to meet or
personally speak to the Defendai t
about his PCRA. (See Deft.'s Statement,
at 2 paras. 1-4). As they all concern th
stewardship of PCRA Counsel, we will treat them
in the aggregate, for convenience'
sake, as one claim. The record, as we
have discussed above, amply demonstrates th
none of the issues Defendant raised in his
PCRA Petition and related documents hay
any substantive merit. The lack of
substantive merit in any of Defendant's contention
does not lend itself to correction by PCRA
Counsel. It is a fatal flaw in Defendant'
attempt to challenge the validity of his plea and
is inherent in the foundation of th
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theories he advances. There is no remedy for these defects. Because none o
Defendant's issues have any substantive merit, Defendant's various
challenges to th
stewardship of his plea counsel fail. Commonwealth v. Chmiel, 30 A.3d 1111 (Pa.
2011)(failure to meet any one of the three prongs of the test for
ineffectiveness defeat
the claim).. Because Defendant does not have a valid claim
of ineffective assistanc
against plea counsel, Defendant's claim of ineffective assistance of
PCRA Couns
likewise fails. Commonwealth v. Chmiel, 30 A.3d 1111 (Pa. 2011)(failure to satisfy test I1
for ineffectiveness against trial counsel defeats a layered
ineffectiveness claim against
subsequent counsel). Thus, Defendant's challenges to the stewardship of PCR
Counsel have no merit and should, respectfully, be denied and dismissed.
See als
Commonwealth v Maple, 559 A.2d 953 (Pa. Super. 1989)(defendant is not
entitled to th
appointment of new counsel after initial PCRA counsel has properly been allowed t
withdraw under the Turner/Finley procedures). Defendant's claims against PCR
Counsel have no merit and should, respectfully, be denied and dismissed.
The next issue Defendant raised in his statement of matters complained
of is
reiteration of his Lefler v. Cooper, supra and Missouri v. Rye, supra argument. W
would respectfully incorporate herein by reference and refer this
Honorable reader t
those portions of the present Opinion above which address this issue. We
respectfully
submit for all of the reasons aforestated that this issue has no merit and
should,
respectfully, be denied and dismissed.
The third issue Defendant raised in his statement of matters
complained of on
appeal is that plea counsel was ineffective for "compel[ling] the plea
agreement withou t
[Defendant's] understanding and consent." We respectfully submit, for all of the reason
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set forth in the body of this Opinion, that Defendant's
contention that his plea couns I
compelled his acceptance of the Commonwealth's offer or
compelled him to enter a ple
agreement without his consent is completely without foundation in
the record and witho t
merit, and should, respectfully, be denied, anddismissed.
The fourth and final issue Defendant raised in his de factor Rule 1925(
Statement reiterates his VonMoltke v. Gillies, supra claim. We would respectfully subm t
that we have already addressed this claim above. We
would respectfully incorporat
herein by reference and refer this Honorable reader to that
portion of our present Opinio
which addresses the merits of Defendant's claim. We
respectfully submit, for all of th
reasons aforestated, that Defendant's claim has no merit and
should, respectfully, b
denied and dismissed.
III. SUMMARY DISMISSAL
"'The right to an evidentiary hearing on a post -conviction petition is not absolute."
Commonwealth v. Wah, 42 A.3d 335, 338 (Pa. Super. 2012)(quoting Commonwealth
Turetsky, 925 A.2d 876, 882 (Pa. Super. 2007), appeal denied,
940 A.2d 365 (P
2007)). "'It is within the PCRA court's discretion to decline to hold a hearing if
th
petitioner's claim is patently frivolous and has no support in either
the record or oth r
evidence.' Id. "Where a PCRA petition does not raise a 'genuine issue[ ) of materi I
fact,' the reviewing court is not required to hold an evidentiary
hearing on the petition "
Commonwealth v. Simpson, 66 A.3d 253, 260 (Pa. 2013)(quoting Commonwealth
Clark, 961 A.2d 80, 85 (Pa. 2008), cert. denied, Clark v. Pennsylvania, 130 S.Ct. 81
(U.S. Pa. 2009)). "Thus, to entitle himself to a hearing, [the petitioner) must raise al
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sAadmin \sarcione \ Nieves Noel 1" PCRA 1925a.docx
issue of fact, which, if resolved in his favor, would justify relief." Commonwealth
Simpson, 66 A.3d 253, 260-61 (Pa. 2013).
It is the responsibility of the reviewing Court on appeal to examine each issu
raised in the PCRA Petition in light of the record certified before it in order to determine f
the PCRA court erred in its determination that there were no genuine issues of materi I
fact in controversy and in denying relief without conducting an evidentiary hearin
Commonwealth v, Wah, 42 A.3d 335, 338 (Pa. Super. 2012). In executing this task, th
appellate courts apply an abuse of discretion standard. Commonwealth v. Rush, 83
A.2d 651, 659 (Pa. 2003), application for extraordinary relief denied, 934 A.2d 1151 (P
2007). An abuse of discretion is not merely an error of judgment; rather, discretion
abused when the law is overridden or misapplied, or the judgment exercised is manifest!
unreasonable, or the result of partiality, prejudice, bias or ill will, as shown by th
evidence or the record. Commonwealth v. Antidormi, 84 A.3d 736 (Pa. Super. 2014,
appeal denied, 95 A.3d 275 (Pa. 2014).
To aid this Honorable reviewing Court in its duty, we have examined all of th
issues Defendant raised in his first PCRA Petition and related documents. As we hav
discussed herein, it is our position that none of the issues Defendant has raised have an
substantive merit. We would respectfully submit that the record as it stands at present i
more than adequate to support this conclusion. Accordingly, we would respectfull
submit that no hearing was necessary to address the merits of Defendant's first PCRd
Petition and that we did not abuse our discretion by dismissing Defendant's first PCR
Petition without holding a hearing..
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sAadmin \sarcione \ Nieves Noel 1't PCRA1925a.docx
IV. STANDARD OF REVIEW
As our appellate courts have established, in PCRA proceedings, an appellat
court's scope of review is limited by the PCRA's parameters; since most PCRA appeal
involve mixed questions of law and fact, the standard of review is whether the PCR
court's findings are supported by the record and free of legal error. Commonwealth
Pitts, 981 A.2d 875 (Pa. 2009), subsequent habeas corpus proceeding denied, Pitts v
Kerestes, 2013 WL 4718950 (E.D. Pa. 2013). The Pennsylvania Superior Court review
an Order dismissing a PCRA petition in the light most favorable to the prevailing party .t
the PCRA level. Commonwealth v, Oliver, 128 A.3d 1275 (Pa. Super. 2015). Tha
Superior Court's review of an Order dismissing a PCRA petition is limited to the finding
of the PCRA court and the evidence of record. Commonwealth v. Oliver, 128 A.3d 127
(Pa. Super. 2015). The Superior Court will not disturb a PCRA court's Order dismissing
PCRA petition if the Order is supported by the evidence of record and is free of leg -I
error. Commonwealth v. Oliver, 128 A.3d 1275 (Pa. Super. 2015). The Superior Cou
will grant great deferende to the factual findings of the PCRA court and will not distur
those findings unless they have no support in the record; however, the Superior Court
affords no such deference to a PCRA court's legal conclusions. Commonwealth
Oliver, 128 A.3d 1275 (Pa. Super. 2015). Where a PCRA petition raises questions
law, the Superior Court's standard of review is de novo and its scope of review is plenary
Commonwealth v. Oliver, 128 A.3d 1275 (Pa. Super. 2015). The Superior Court ma
affirm a PCRA court's dismissal of a PCRA petition on any grounds if the record support
it. Commonwealth v. Oliver, 128 A.3d 1275 (Pa. Super. 2015).
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v
sAadmin Varcione \Nieves Noel rt PCRA 1925a.docx
V. CONCLUSION
We would respectfully submit that our analysis of the merits
of the issues raised b
the Defendant in his first PCRA Petition and related
documents survives the threshold fo
appellate review. To that end, we would respectfully submit
that our factual findings ar
supported by the record and our conclusions of law are free
from error. Consistent wit
our analysis as set forth above, we would respectfully
submit that none of Defendant'
issues has any substantive merit. Accordingly, we would
respectfully recommend that
this Honorable reviewing Court deny and dismiss
Defendant's appeal and affirm ou
Order dated August 30, 2016 summarily dismissing his first
PCRA Petition.
BY THE COURT:
Date
h /7(e _ ir
7
. 431/4.4..,,,r....4..t.,.._.
Anton A/faone,
i (
Certified From The Record
This ay of 20/
Deputy. Cie of Corm ou Pleas Court -
h.
-57,.,