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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
HASAN GOODEN-REID :
:
Appellant : No. 1650 MDA 2017
Appeal from the PCRA Order September 22, 2017
In the Court of Common Pleas of Lycoming County Criminal Division at
No(s): CP-41-CR-0000590-2016
BEFORE: STABILE, J., MURRAY, J., and MUSMANNO, J.
MEMORANDUM BY MURRAY, J.: FILED AUGUST 14, 2018
Hasan Gooden-Reid (Appellant) appeals pro se from the order
dismissing his petition filed pursuant to the Post Conviction Relief Act (PCRA),
42 Pa.C.S.A. §§ 9541-9546. We affirm.
The facts presented at the guilty plea hearing established that Lycoming
County Housing Authority received complaints of a foul odor and flies
originating from Appellant’s apartment, and on July 27, 2015, the Housing
Authority asked Appellant to vacate the apartment so that it could be
fumigated. Once inside the apartment, Housing Authority workers noticed
that the odor was worse and that there was a “sludge like” material in the sink
and on the walls. The Housing Authority contacted the Williamsport Bureau
of Police after one of the workers, Dennis Ulsamer, discovered a human jaw
bone in the garbage outside of Appellant’s apartment. The police were also
informed that Appellant’s girlfriend, Kristina Pope (Victim), frequented the
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apartment, but had not be in contact with her caseworker or any other
individual in several weeks.
The police contacted Appellant who, after being Mirandized, admitted
that he was in a physical altercation with Victim. Appellant stated that Victim
had grabbed a knife to protect herself, but he ended up with the knife, and
stabbed the Victim in the back at least four times. Appellant placed the
Victim’s body in a closet in his apartment and disposed of all evidence of the
killing in the housing complex’s garbage collection area. After being advised
by the Housing Authority that the apartment would be fumigated, Appellant
placed the Victim’s body in the trash where it was later found.
On June 9, 2016, Appellant entered negotiated guilty pleas to third-
degree murder and other crimes and was sentenced to 30 to 60 years in
prison. He did not file a direct appeal.
On February 2, 2017, Appellant filed a timely pro se PCRA petition and
on February 14, 2017, the PCRA court appointed counsel to represent
Appellant. In his petition, Appellant asserted that plea counsel was ineffective
for failing to (1) argue self-defense; (2) show that Appellant’s mental illness
interfered with his ability to enter a guilty plea that was knowing, voluntary,
or intelligent; and (3) file a post-sentence motion or direct appeal. After
reviewing Appellant’s case file, the notes of testimony, and communicating
with Appellant, PCRA counsel determined that no meritorious issues existed
and filed a petition to withdraw pursuant to Turner/Finley. The PCRA court
granted PCRA counsel’s petition on September 1, 2017, and simultaneously
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issued its Rule 907 notice of intent to dismiss Appellant’s petition. Appellant
filed a response to the Rule 907 notice on September 20, 2017. On September
22, 2017, the PCRA issued a joint order dismissing Appellant’s PCRA petition
and memorandum addressing the merits of the claims raised. Appellant filed
this appeal on October 24, 2017.1
Appellant presents the following issues for review:
1. PLEA COUNSEL WAS INEFFECTIVE WHEN HIS
REPRESENTATION FELL BELOW PROFESSIONAL STANDARDS
THAT RESULTED IN PREJUDICE. SPECIFICALLY WHERE
COUNSEL:
A. FAILED TO SHOW THAT THE APPELLANT’S MENTAL
ILLNESS INTERFERRED WITH THE APPELLANT’S ABILITY
____________________________________________
1Following the denial of his petition on September 22, 2017, Appellant filed a
pro se notice of appeal docketed in the PCRA court on October 24, 2017 – one
day outside the expiration of the 30-day appeal period, October 23, 2017.
See Pa.R.A.P. 903(a).
A pro se filing submitted by a prisoner incarcerated in a
correctional facility is deemed filed as of the date it is delivered to
the prison authorities for purposes of mailing or placed in the
institutional mailbox, as evidenced by a properly executed
prisoner cash slip or other reasonably verifiable evidence of the
date that the prisoner deposited the pro se filing with the prison
authorities.
Pa.R.A.P. 121(a). In this case, Appellant’s notice of appeal was stamped as
received on October 23, 2017, within the 30-day appeal period, and docketed
with the PCRA only one day outside the appeal period. Under these
circumstances, we may infer that Appellant placed his notice of appeal into
the hands of prison officials before the appeal period expired. See
Commonwealth v. Patterson, 931 A.2d 710 (Pa. Super. 2007) (panel may
avoid quashal where the date of receipt indicates that appellant likely placed
a notice of appeal into the hands of prison authorities before expiration of
thirty days from the final order).
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TO APPRECIATE HIS POSITION IN REGARDS TO HIS
GUILTY PLEA.
B. PERMITTED THE APPELLANT TO UNINTELLIGENTLY
PLEAD GUILTY WHEN A VIABLE AFFIRMATIVE DEFENSE
EXISTED.
C. FAILED TO FILE A POST-SENTENCE MOTION TO MODIFY
SENTENCE/NOTICE OF APPEAL IN RELATION TO THE
TRIAL COURT’S ABUSE OF DISCRETION PERMITTNG THE
APPELLANT TO ENTER A GUILTY PLEA BASED ON HIS
COMPETENCY AS WELL AS THE COURT’S SEVERE
SENTENCING UNDER THE EXTRAORDINARY
CIRCUMSTANCES.
2. WAS PCRA COUNSEL INEFFECTIVE[NESS] DUE TO
ABANDONMENT WHEN MERITORIOUS ISSUES EXISTED?
Appellant’s Brief at 4 (PCRA court and suggested answers omitted).
“In reviewing the denial of PCRA relief, we examine whether the PCRA
court’s determination is supported by the record and free of legal error.”
Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014) (quotations and
citations omitted). “To be entitled to PCRA relief, [an] appellant must
establish, by a preponderance of the evidence, his conviction or sentence
resulted from one or more of the enumerated errors in 42 Pa.C.S.[A.] §
9543(a)(2)[.]” Id.
Appellant challenges plea counsel’s effectiveness. In deciding
ineffective assistance of counsel claims, we begin with the presumption that
counsel rendered effective assistance. Commonwealth v. Bomar, 104 A.3d
1179, 1188 (Pa. 2014). To overcome that presumption, the petitioner must
establish: “(1) the underlying claim has arguable merit; (2) no reasonable
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basis existed for counsel’s action or failure to act; and (3) the petitioner
suffered prejudice as a result of counsel’s error, with prejudice measured by
whether there is a reasonable probability that the result of the proceeding
would have been different.” Id. (citation omitted). To demonstrate prejudice
in an ineffective assistance of counsel claim, “the petitioner must show that
there is a reasonable probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different.” Commonwealth v.
King, 57 A.3d 607, 613 (Pa. 2012). If the petitioner fails to prove any of
these prongs, the claim is subject to dismissal. Bomar, 104 A.3d at 1188.
“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.” Commonwealth v.
Moser, 921 A.2d 526, 531 (Pa. Super. 2007) (quotations and citation
omitted). “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.” Id.
(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.” Commonwealth v. Barndt, 74 A.3d 185, 192 (Pa. Super.
2013) (quotations and citations omitted). “The reasonable probability test is
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not a stringent one; it merely refers to a probability sufficient to undermine
confidence in the outcome.” Id. (quotations and citations omitted).
With respect to valid guilty pleas, this Court has explained:
A valid guilty plea must be knowingly, voluntarily and intelligently
entered. The Pennsylvania Rules of Criminal Procedure mandate
that pleas be taken in open court, and require the court to conduct
an on-the-record colloquy to ascertain whether a defendant is
aware of his rights and the consequences of his plea. Specifically,
the court must affirmatively demonstrate the defendant
understands: (1) the nature of the charges to which he is pleading
guilty; (2) the factual basis for the plea; (3) his right to trial by
jury; (4) the presumption of innocence; (5) the permissible ranges
of sentences and fines possible; and (6) that the court is not
bound by the terms of the agreement unless the court accepts the
agreement. This Court will evaluate the adequacy of the plea
colloquy and the voluntariness of the resulting plea by examining
the totality of the circumstances surrounding the entry of that
plea.
Commonwealth v. Kelley, 136 A.3d 1007, 1013 (Pa. Super. 2016) (citations
omitted).
In his first issue, Appellant argues that plea counsel was ineffective for
failing to “show that Appellant’s mental illness interfered with the Appellant’s
ability to appreciate his position in regards to his guilty plea.” Appellant’s Brief
at 9. In essence, Appellant claims that his guilty plea was invalid because he
was mentally ill. Appellant asserts that his “unnatural, robotic answers to the
judge’s colloquy” demonstrate his lack of competency to fully appreciate the
consequences of his guilty plea. Id. at 11.
With regard to the voluntariness of a plea, a guilty plea colloquy must
“affirmatively demonstrate the defendant understood what the plea connoted
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and its consequences.” Commonwealth v. Lewis, 708 A.2d 497, 501 (Pa.
Super. 1998). Once the defendant has entered a guilty plea, “it is presumed
that he was aware of what he was doing, and the burden of proving
involuntariness is upon him.” Commonwealth v. Bedell, 954 A.2d 1209,
1212 (Pa. Super. 2008). Competence to plead guilty requires a finding that
the defendant comprehends the crime for which he stands accused, is able to
cooperate with his counsel in forming a rational defense, and has a rational
and factual understanding of the proceedings against him. Commonwealth
v. Turetsky, 925 A.2d 876 (Pa. Super. 2007).
Here, during the lengthy guilty plea colloquy, the following relevant
exchange occurred between the trial court and Appellant:
[Appellant]: I got mental problems. That’s what I got. I’m
mentally ill. I’ve been like this since I was 16.
[The Court]: But you understand that your attorneys have had
you tested to find out whether or not those mental problems would
not enable you to commit a crime?
[Appellant]: Even if – there’s people that can commit crimes that
have mental problems in today’s society.
[The Court]: I agree. I agree but –
[Appellant]: And they go to serve jail times, too.
[The Court]: But part of my accepting your guilty plea is – is partly
a determination as to whether or not you understand what we’re
talking about.
[Appellant]: I understand what you’re talking about.
[The Court]: And you do?
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[Appellant]: Yes ma’am. Yes, ma’am.
...
[The Court]: Okay. Now, while you’re at – while you’ve been at
the county prison have you been taking any medication?
[Appellant]: Yes. Yes, I have.
[The Court]: And then at some point you also – did you go to
Torrance State Hospital?
[Appellant]: Yes, ma’am.
[The Court]: And they gave you some medicine out there?
[Appellant]: Yes.
[The Court]: Do you think that medicine, whether it’s the kind that
you received at Torrance or the medicine that you receive at the
county prison, do you think that’s interfering with – making it
confusing for you to understand –
[Appellant]: No. It’s helping me out. It’s helping me. Calming
me down, making me back to being an ordinary person.
[The Court]: Okay.
[Appellant]: And not a weirdo or a person that likes to stay to
himself and doesn’t like to communicate with other people.
[The Court]: Okay. So you actually think that you can think more
clearly with it?
[Appellant]: Yes, I can. Yes, ma’am.
[The Court]: All right. And over the past – I guess it’s been almost
a year that you’ve been on that medication, have you felt pretty
consistently able to understand?
[Appellant]: Yes. Yes, I have.
[The Court]: And to think clearly?
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[Appellant]: Yes, ma’am.
[The Court]: Okay.
[Appellant]: Yes, I have.
N.T., 6/9/16, at 31, 37-38.
Based on the above testimony, the PCRA court concluded that Appellant
was not entitled to relief on his claim of ineffective assistance of plea counsel,
and we find no error in this regard. See Kelley, 136 A.3d at 1013.
Specifically, the PCRA court noted that the guilty plea hearing took more than
an hour where all of the charges filed against Appellant were reviewed and
Appellant had ample opportunity to consult with counsel. PCRA Court Opinion,
9/22/17, at 5. Moreover, Appellant completed a comprehensive written guilty
plea colloquy, indicating that he understood the charges against him. Id. at
6. Appellant is bound by the statements he made in open court while under
oath, and he may not now assert grounds for withdrawing the plea which
contradict the statements. Turetsky, 925 A.2d at 876.
In his second issue, Appellant argues that trial counsel was ineffective
for failing to raise a self-defense argument. Appellant’s Brief at 14. Appellant
asserts that trial counsel should have raised the affirmative defense of self-
defense to his third-degree murder charge because Victim was the initial
aggressor. Appellant argues that “[w]hile it is true that the record states
decedent was stabbed in the back, had counsel reviewed the circumstances
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of what occurred, there is a reasonable likelihood that rational triers-of-fact
would have agreed it was self-defense . . . .” Id. No relief is due.
Appellant’s testimony at the guilty plea hearing refutes his claim.
Appellant testified that the decision to plead guilty was his own, and agreed
that by pleading guilty, he forfeited his right to raise a claim of self-defense:
[Appellant’s plea counsel]: Do you understand that if you go
through this guilty plea you’re giving up your right to claim self[-
]defense?
[Appellant]: Yes
[Appellant’s plea counsel]: And under Pennsylvania Law self[-
]defense would be a defense to the charges – some of the charges
against you, do you understand you’re giving it up?
[Appellant]: Yes.
[Appellant’s plea counsel]: And what does that mean to you when
I tell you you’re giving it up?
[Appellant]: It means I can’t pursue that no more.
[Appellant’s plea counsel]: You’re willing to plead guilty and you
give up the right to claim self[-]defense?
[Appellant]: Yes.
N.T., 6/9/16, at 32.
Likewise, our case law is clear that the entry of a guilty plea constitutes
waiver of all defenses and defects except claims of lack of jurisdiction, invalid
guilty plea, and illegal sentence. See Commonwealth v. Roden, 730 A.2d
995, 997 n.2 (Pa. Super. 1999) (“Upon entry of a guilty plea, a defendant
generally waives all defects and defenses except those concerning the validity
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of the plea, the jurisdiction of the trial court, and the legality of the sentence
imposed.”); see also Commonwealth v. Messmer, 863 A.2d 567, 571 (Pa.
Super. 2004) (“The entry of a guilty plea constitutes a waiver of all defenses
and defects except claims of lack of jurisdiction, invalid guilty plea, and illegal
sentence.”). Thus, there is no support for Appellant’s claim that plea counsel
should have raised a self-defense claim.
In his third claim, Appellant asserts that plea counsel was ineffective for
failing to file a post-sentence motion or direct appeal. Although Appellant
acknowledges that he did not advise plea counsel of his wish to file an appeal
until after the appeal period had lapsed, Appellant asserts that due to his
mental illness, plea counsel should have anticipated his desire and filed an
appeal on his behalf. Appellant’s Brief at 17-18.
In rejecting his claim, the PCRA court opined:
Just prior to the end of the guilty plea colloquy, the Court advised
the [Appellant] of his post sentence rights.
COURT: Do you have any questions for me?
[Appellant]: No, I don’t. I’m grateful. I’m grateful. Thank
you so much.
COURT: You’re welcome. Now you understand –
[Appellant]: Yes, I understand.
COURT: that you would still have the right to file a motion
to modify this court’s sentence within 10 days or to take an
appeal from what’s happened here today within 30?
[Appellant]: Yes, I understand.
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COURT: [Your attorney] will continue to represent you
throughout that time frame.
[Appellant]: Yes ma’am.
COURT: They’re your post sentencing rights.
[Appellant]: Yes ma’am.
COURT: Do you have any questions about those rights from
me?
[Appellant]: No, I don’t.
COURT: Or from me?
[Appellant]: No I don’t.
[N.T., 6/9/16,] at 57.
PCRA Counsel also had the opportunity to review the file kept in
[Appellant’s] case by trial counsel confirming the discussion that
was held prior to [Appellant] being transported to state prison;
trial counsel had written documentation that [Appellant] wished
to waive his post sentence and appeal rights. However, when
[Appellant] did wish to take an appeal, his letter was received by
his attorney’s office past the deadline to file but that he was
advised to file a PCRA petition. The court is satisfied that
[Appellant] knew his post sentence rights and when he chose to
exercise them outside the time set by rule, it was at no fault of
his trial counsel.
PCRA Court Opinion, 9/22/17, at 8-9.
With respect to Appellant’s third issue, after careful review of the record,
the briefs, and the decision of the Honorable Nancy L. Butts, we affirm based
on the PCRA court’s decision.
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Accordingly, we conclude that Appellant’s ineffective assistance claims
with respect to his guilty plea counsel lack arguable merit, and the PCRA court
did not err in dismissing Appellant’s PCRA petition.
Finally, Appellant alleges that PCRA counsel was ineffective for failing to
raise the issues we disposed of above. Appellant’s Brief at 19. Before
discussing the merits of this claim, we must first determine if we may reach
them. In Commonwealth v. Pitts, 981 A.2d 875 (Pa. 2009), our Supreme
Court held:
[Petitioner’s] failure, prior to his PCRA appeal, to argue PCRA
counsel’s ineffectiveness . . . results in waiver of the issue of PCRA
counsel’s ineffectiveness. [Petitioner’s] attempt to obtain review,
on collateral appeal, of an issue not raised in the proceedings
below amounts to a serial PCRA petition on PCRA appeal.
Although [petitioner] asserts his PCRA appeal was the first
opportunity he had to challenge PCRA counsel’s stewardship
because he was no longer represented by PCRA counsel, he could
have challenged PCRA counsel’s stewardship after receiving
counsel’s withdrawal letter and notice of the PCRA court’s intent
to dismiss his petition pursuant to Pa.R.Crim.P. 907, yet he failed
to do so.
Id. at 880 n. 4; see also Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa.
Super. 2014 (en banc) (holding that “claims of PCRA counsel’s ineffectiveness
may not be raised for the first time on appeal.”).
Here, Appellant failed to challenge PCRA counsel’s withdrawal after he
received the no merit letter or after the PCRA court filed its notice of intent to
dismiss. More importantly, Appellant failed to raise his issue concerning PCRA
counsel in his Pa.R.A.P. 1925(b) statement of errors. As a result, the PCRA
court did not have the opportunity to address Appellant’s claim, and it is
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waived where, consistent with Pitts and Henkel, Appellant has failed to
preserve this issue for review.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/14/18
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