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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KHAMAL FOOKS :
:
: No. 1815 WDA 2017
Appeal from the PCRA Order November 7, 2017
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0008254-2013
BEFORE: GANTMAN, P.J., PANELLA, J., and OTT, J.
MEMORANDUM BY OTT, J.: FILED AUGUST 06, 2018
Khamal Fooks appeals from the order entered November 7, 2017, that
dismissed, without a hearing, his first petition filed pursuant to the Post
Conviction Relief Act (PCRA), 42 Pa.C.S. § 9541 et seq. Fooks seeks relief
from the judgment of sentence of 20 to 40 years’ imprisonment, imposed after
he entered a negotiated guilty plea to murder of the third degree, conspiracy
and firearms not to be carried without a license.1 Fooks presents two
questions for this Court’s review: (1) Are petitioner’s claims for relief properly
cognizable under the PCRA, and (2) Did the PCRA court abuse its discretion in
denying the PCRA petition, insofar as the petitioner established the merits of
the claim that his guilty plea was not knowingly and voluntarily entered, but
unlawfully induced due to the ineffectiveness of trial counsel who advised and
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1 18 Pa.C.S. §§ 2502(c), 903(a)(1), and 6106(a)(1), respectively.
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assured him that if he pleaded guilty to third degree murder in exchange for
a 20-40 year sentence, he would only have to serve half of his minimum term;
and was counsel ineffective for not moving to withdraw the unknowing,
involuntary and unlawfully induced plea. See Fooks’ Brief at 4. Based on the
following, we affirm.
The facts of this case were succinctly summarized by this Court in Fooks’
direct appeal:
Fooks and Rayshon Shields intended to sell drugs to people
in a home. However, once inside, Fooks and Shields decided to
rob the people. Fooks shot and killed Roger Griffin ("Griffin") as
Griffin attempted to run out of the house. Fooks and Shields then
took money and cell phones from the home. Fooks was
subsequently arrested and charged with criminal homicide,
robbery, conspiracy, and firearms not to be carried without a
license.
Commonwealth v. Fooks, 156 A.3d 339 (Pa. Super. 2016) (unpublished
memorandum, at 1-2).
The PCRA court recounts the procedural history following Fooks’ arrest:
On October 5, 2015, [Fooks] entered into a negotiated guilty plea
to one count of Third Degree Murder and agreed to a sentence of
not less than 20 years nor more than 40 years. [Fooks] had
originally been charged with Second Degree Murder and was
facing a mandatory life sentence. In exchange for his agreement
to plead guilty to the terms described above, the Commonwealth
agreed to withdraw the charge of Second Degree Murder. The
terms of the plea agreement were placed on the record. This Court
engaged in a colloquy with [Fooks] to establish [Fooks’]
understanding of the nature of Third Degree Murder; to establish
a factual basis for the plea; to establish [Fooks’] understanding
that he had a right to trial by jury; to establish [Fooks’]
understanding that he was presumed innocent; to establish
[Fooks’] awareness of the permissible ranges of sentences and/or
fines for the offenses charged; and to establish that [Fooks] was
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aware that this Court was not bound by the terms of the plea
agreement. …. In this case, the colloquy was both oral and in
writing… The terms of the plea agreement were also placed on the
record.
[Fooks timely filed a PCRA petition requesting reinstatement
of his direct appeal rights from the post sentencing stage, which
the PCRA court granted, and Fooks] filed a direct appeal to the
Superior Court alleging that his sentence was manifestly
excessive. Commonwealth v. Fooks, 251 WDA 2016 (August
16, 2016) [156 A.3d 339 (Pa. Super. 2016) (unpublished
memorandum)]. The Superior Court ruled that the appeal was
frivolous because [Fooks’] sentence was imposed consistent with
the plea agreement that he acknowledged on the record. The
Superior Court terminated the appeal. [Fooks] then filed the
instant PCRA petition alleging that his guilty plea was not
knowingly and voluntarily entered because his trial counsel
unlawfully induced him into accepting the plea agreement by
misrepresenting to [Fooks] that he would only have to serve one-
half of the minimum term of the prison sentence, i.e. ten years.
As a result, he claims, counsel rendered ineffective assistance of
counsel for failing to move to withdraw his guilty plea. …
PCRA Court Opinion, 1/30/2018, at 1-2.
After Fooks filed this PCRA petition pro se on January 17, 2017, the
PCRA court appointed counsel and counsel filed an amended PCRA petition on
June 26, 2017. Thereafter, on September 12, 2017, the PCRA court issued
notice of intent to dismiss pursuant to Pa.R.Crim.P. 907, and ultimately
dismissed the petition on November 7, 2017. This appeal followed.2
Preliminarily, we state the principles that guide our review:
"Our standard of review of a [PCRA] court order granting or
denying relief under the PCRA calls upon us to determine 'whether
the determination of the PCRA court is supported by the evidence
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2Fooks timely complied with the order of the PCRA court to file a Pa.R.A.P.
1925(b) statement of errors complained of on appeal.
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of record and is free of legal error.'" Commonwealth v. Barndt,
2013 PA Super 206, 74 A.3d 185, 192 (Pa. Super. 2013) (quoting
Commonwealth v. Garcia, 2011 PA Super 124, 23 A.3d 1059,
1061 (Pa. Super. 2011)).
****
To the extent that Appellant is challenging the effectiveness of his
plea counsel, we bear in mind that counsel is presumed to be
effective. Commonwealth v. Simpson, 631 Pa. 423, 112 A.3d
1194, 1197 (Pa. 2015). To prevail on a claim of ineffective
assistance of counsel, a PCRA petitioner must prove each of the
following: "(1) the underlying legal claim was of arguable merit;
(2) counsel had no reasonable strategic basis for his action or
inaction; and (3) the petitioner was prejudiced—that is, but for
counsel's deficient stewardship, there is a reasonable likelihood
the outcome of the proceedings would have been different." Id.
Allegations of ineffectiveness in connection with the entry
of a guilty plea will serve as a basis for relief only if the
ineffectiveness caused the defendant to enter an
involuntary or unknowing plea. Where the defendant
enters his plea on the advice of counsel, the voluntariness
of the plea depends on whether counsel's advice was within
the range of competence demanded of attorneys in
criminal cases.
Commonwealth v. Moser, 2007 PA Super 93, 921 A.2d 526,
531 (Pa. Super. 2007) (internal quotations and citations omitted).
"Thus, to establish prejudice, the defendant must show that there
is a reasonable probability that, but for counsel's errors, he would
not have pleaded guilty and would have insisted on going to trial."
Barndt, 74 A.3d at 192 (citation and internal quotation marks
omitted).
Commonwealth v. Pier, 182 A.3d 476, 478-79 (Pa. Super. 2018).
Initially, with regard to the first issue raised by Fooks, Fooks maintains
he is eligible for relief under the PCRA since his PCRA petition was timely filed,
see 42 Pa.C.S. § 9545(b)(1), and the issues raised therein have not been
previously litigated or waived. See 42 Pa.C.S. § 9543(a)(3). We agree.
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Here, Fooks was sentenced on October 5, 2015. After filing a PCRA
petition, Fooks’ direct appeal rights were reinstated at the post-sentence stage
on January 12, 2016. A post-sentence motion was denied on January 19,
2016, and he appealed. This Court dismissed the appeal on August 16, 2016, 3
and his judgment of sentence became final 30 days later, on September 15,
2016, when the time for filing a petition for allowance of appeal in the
Pennsylvania Supreme Court expired. See 42 Pa.C.S. § 9545(b)(3)(“a
judgment becomes final at the conclusion of direct review, including
discretionary review in the Supreme Court of the United States and the
Supreme Court of Pennsylvania, or at the expiration of time for seeking the
review”). As Fooks filed the instant petition on January 17, 2017, his petition
is timely. See 42 Pa.C.S. § 9545(b)(1) (“Any petition under this subchapter,
including a second or subsequent petition, shall be filed within one year of the
date the judgment becomes final …”).
Furthermore, the record confirms the ineffectiveness issue raised in
Fooks’ petition has not been previously litigated or waived, see 42 Pa.C.S. §§
9543(b)(3), 9544, as these post-conviction proceedings are Fooks’ first
opportunity to raise such claim. See Commonwealth v. Holmes, 79 A.3d
562, 576 (Pa. 2013) (“claims of ineffective assistance of counsel are to be
deferred to PCRA review . . . and such claims should not be reviewed upon
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3Commonwealth v. Fooks, 156 A.3d 339 (Pa. Super. 2016) (unpublished
memorandum).
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direct appeal”) (reaffirming Commonwealth v. Grant, 813 A.2d 726 (Pa.
2002).
Finally, we recognize this Court has instructed that “[a]llegations that
counsel misadvised a criminal defendant in the plea process are properly
determined under the ineffectiveness of counsel subsection of the PCRA [42
Pa.C.S. § 9543(a)(2)(ii),] not the [sub]section specifically governing guilty
pleas [42 Pa.C.S. § 9543(a)(2)(iii)].” Commonwealth v. Lynch, 820 A.2d
728, 730 n.2 (Pa. Super. 2003). Therefore, Fooks’ claims are cognizable
under Section 9543(a)(2)(ii) of the PCRA. Accordingly, we turn to address
Fooks’ contention that his plea was involuntary because it was unlawfully
induced by plea counsel’s incorrect representation that Fooks would be eligible
for parole in ten years, after serving half of his minimum term.4
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4Fooks acknowledges in his brief that he will not be eligible for parole until he
has served his minimum term of imprisonment. Fooks points to 61 Pa.C.S. §
6137, which states, in part:
The power to parole granted under this section to the board may
not be exercised in the board’s discretion at any time before, but
only after, the expiration of the minimum term of imprisonment
fixed by the court in its sentence or by the Board of Pardons in a
sentence which has been reduced by commutation.
61 Pa.C.S. § 6137(a)(3). Fooks also cites 42 Pa.C.S. § 9756, which states, in
part: “The minimum sentence imposed under this section may not be reduced
through parole prior to the expiration of the minimum sentence unless
otherwise authorized by this section or other law.” 42 Pa.C.S. § 9756(b)(2).
See Fooks’ Brief at 15-16.
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The PCRA court, in support of its determination that Fooks’ petition
warranted dismissal, concluded:
On the record and in the written colloquy, Petitioner acknowledged
that no promises had been made to him outside the terms of the
plea agreement as an inducement to plead guilty. He also affirmed
that nobody, including his trial counsel, had promised him
anything in exchange for the guilty plea other than the terms of
the plea agreement that were placed on the record. Petitioner
stated that he had sufficient time to speak with his counsel and
he was satisfied with trial counsel's representation. It is clear from
the record that Petitioner understood the charges to which he was
pleading guilty, the constitutional rights he relinquished, the
sentence he was to receive and the benefit he was receiving by
accepting the plea agreement. There is no question that Petitioner
bargained for the plea agreement and he received the benefit of
that bargain.
Based on the foregoing, there was no need for a hearing in this
matter.
PCRA Court Opinion, 1/30/2018, at 6.
Based on our review, we find no basis upon which to disturb the
determination of the PCRA court. While Fooks contends trial counsel told him
he would be eligible for parole in ten years, Fooks testified at the guilty plea
hearing that he agreed he would serve a sentence of imprisonment of 20 to
40 years as a result of the negotiated plea.
Specifically, the following discussion occurred:
THE COURT [addressing the prosecutor]: Is there a plea
agreement, Mr. Broman?
MR. BROMAN: Yes, Your Honor. In return for The
Defendant’s plea to third degree [murder], The Commonwealth
has agreed for a 20 to 40 year sentence. The Commonwealth has
agreed to proceed on that [as to count one] and withdraw count
two [for] robbery.
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THE COURT: You’re withdrawing count two. You’re keeping
[count three for] conspiracy and [count four for] the firearm
charge?
MR. BROMAN: Correct, Your Honor.
THE COURT: The agreement is that The Defendant will
plead guilty to third degree [murder] and that he gets 20 to 40
years for the murder charge?
MR. BROMAN: That’s correct.
THE COURT: Is that your understanding?
MR. THOMASSEY [TRIAL COUNSEL]: It is, Your Honor.
THE COURT: Mr. Fooks, did you understand that The
Commonwealth has agreed to withdraw the [count one] murder
charge as it is in the document, but amend it, so to speak, by
qualifying it as murder in the third degree, taking away the murder
one or murder two possibility. Now it’s murder three making that
number 20 to 40 years, withdrawing the robbery, which takes it
out of the penalty of murder by virtue of that and agree to
conspiracy and the firearm [violation]. You would be pleading
guilty to those with no further penalty. Is that what you agreed
to do?
THE DEFENDANT: Yes, sir.
N.T., 10/5/2015, at 5-6.
In addition, Fooks confirmed (1) no one had forced him to plead guilty,
(2) no one had made him any promises outside of the terms of the plea
agreement, (3) he was giving up his right to trial of his own free will, (4) he
had enough time to talk to his attorney about whether to go to trial or plead
guilty, and (5) he was satisfied with his attorney’s overall handling of his case.
See id. at 9-10.
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Fooks also answered questions in a written guilty plea colloquy, as
follows:
56. Has anyone (including your attorney) promised you anything
in exchange for the guilty plea other than the terms of any plea
bargain? NO
57. Do you understand that if there is a plea bargain in this case,
the terms of the plea bargain will be stated on the record before
the judge and that you will be bound by the terms of the plea
bargain as they appear of record? YES
Written Guilty Plea Colloquy, 10/5/2015, at 9.
Following the guilty plea, Fooks waived a pre-sentence report and
proceeded immediately to sentencing. After the trial judge imposed sentence,
he questioned Fooks again regarding his understanding of the sentence, and
Fooks confirmed he understood his sentence.
THE COURT: CC 2013-08254 on count one, murder in the
third degree, you are sentenced to a period of incarceration not
less than 20 or more than 40 years per the agreement. You will
be given credit for all time served up until today…. No additional
penalty for count three or four, count two having been withdrawn.
The Defendant is not RRRI eligible by nature of the offense
and the facts surrounding it.
The Court will waive Court costs insasmuch as The
Defendant will be incarcerated for a minimum of 20 years.
Do you understand your sentence, sir?
THE DEFENDANT: Yes, sir.
Id. at 18-19 (emphasis added).
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Relevant to the verbal responses Fooks offered while under oath during
his plea of guilty colloquy and his written plea statement representations, we
emphasize:
Our law presumes that a defendant who enters a guilty plea was
aware of what he was doing. He bears the burden proving
otherwise.
****
The longstanding rule of Pennsylvania law is that a defendant may
not challenge his guilty plea by asserting that he lied while under
oath, even if 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 and may not later assert grounds for
withdrawing the plea which contradicts 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. Pollard, 832 A.2d 517, 523-24 (Pa. Super. 2003)
(citations omitted) (emphasis supplied).
Here, nothing in the record supports Fooks’ claim that plea counsel
represented to him he would be eligible for parole after serving half of his
minimum sentence. Fooks is bound by the statements he made in the oral
and written plea colloquies, and cannot now contradict those statements to
challenge the lawfulness of the plea. See Pollard, supra. Therefore, Fooks’
claim lacks arguable merit.
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We add that the certification PCRA counsel has attached to Fooks’
amended petition fails to advance Fooks’ claim that plea counsel advised him
he would only serve 10 years’ imprisonment. In the certification, counsel only
avers plea counsel would testify he would have had no reasonable basis for
failing to seek withdrawal of the plea “if he knew that Mr. Fooks
erroneously believed he would only have to serve half of his minimum
sentence, and that he would not have pleaded guilty if he knew he had to
serve all of his minimum sentence.” PCRA Certification at ¶4 (emphasis
added), attached to Amended PCRA Petition, 6/26/2017. In addition, the lack
of any challenge at the time of sentencing also undermines Fooks’ claim. In
this regard, it is important to note that the trial judge explicitly specified that
Fooks would be incarcerated for a minimum of 20 years, Fooks affirmatively
indicated his understanding of his sentence when questioned by the trial
judge, and neither Fooks nor plea counsel raised any question or objection.
See N.T., supra, at 19.
Consequently, in light of the foregoing, we conclude there is no arguable
merit to Fooks’ claim that counsel induced him to enter the negotiated guilty
plea by promising him he would only have to serve 10 years of his 20-year
minimum sentence. Accordingly, we affirm the PCRA court’s decision that
dismissed Fooks’ first PCRA petition without an evidentiary hearing.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/6/2018
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