J-S41006-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ANTHONY R. SKELTON :
:
Appellant : No. 316 EDA 2018
Appeal from the PCRA Order December 26, 2017
In the Court of Common Pleas of Chester County Criminal Division at
No(s): CP-15-CR-0001508-2015
BEFORE: GANTMAN, P.J., OLSON, J., and STEVENS*, P.J.E.
MEMORANDUM BY STEVENS, P.J.E.: FILED AUGUST 28, 2018
Appellant Anthony R. Skelton appeals from the order of the Court of
Common Pleas of Chester County dismissing his petition pursuant to the Post
Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. PCRA counsel
has filed a petition to withdraw and a no-merit brief pursuant to
Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988) and
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988). We affirm the
PCRA court’s order and grant counsel’s petition to withdraw.
On March 11, 2016, Appellant entered an open guilty plea to three
counts of Possession With Intent to Deliver a Controlled Substance (PWID)
and one count of Persons Not to Possess Firearms. On November 17, 2016,
the trial court sentenced Appellant to an aggregate sentence of 10¾ to 27½
years’ incarceration. On November 28, 2016, Appellant filed a timely
counseled motion for the reconsideration of his sentence. On December 5,
____________________________________
* Former Justice specially assigned to the Superior Court.
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2016, Appellant filed a pro se motion for reconsideration. After a hearing, the
lower court denied Appellant’s petition on December 6, 2016.
Thereafter, on December 15, 2016, Appellant filed a pro se “Motion for
Ineffectiveness of Counsel,” which the lower court considered to be a PCRA
petition given that the filing raised claims of ineffectiveness of counsel. On
December 19, 2016, Appellant filed a pro se Motion to Withdraw Guilty Plea,
which the lower court subsequently denied as untimely filed on January 5,
2017. See Pa.R.Crim.P. 720(A)(1) (post-sentence motions must be filed no
later than ten days after sentencing).
The lower court recognized that the Appellant’s December 15, 2016
PCRA petition was premature as Appellant had time remaining to file a direct
appeal from the judgment of sentence. After the direct appeal period expired,
the lower court appointed Appellant counsel to represent him on collateral
review. On May 5, 2017, appointed counsel filed an amended PCRA petition.
After holding an evidentiary hearing, the PCRA court denied Appellant’s
petition on December 26, 2017.
After Appellant filed a timely appeal, PCRA counsel filed a petition to
withdraw and a Turner/Finley no-merit brief. On May 17, 2018, Appellant
filed a pro se response, in which he did not challenge PCRA counsel’s request
to withdraw but alleged that his guilty plea was defective due to trial counsel’s
ineffectiveness.
As an initial matter, we must evaluate counsel’s petition to withdraw his
representation:
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Counsel petitioning to withdraw from PCRA representation must
proceed ... under Turner, supra and Finley, supra and ... must
review the case zealously. Turner/Finley counsel must then
submit a “no-merit” letter to the trial court, or brief on appeal to
this Court, detailing the nature and extent of counsel's diligent
review of the case, listing the issues which petitioner wants to
have reviewed, explaining why and how those issues lack merit,
and requesting permission to withdraw.
Counsel must also send to the petitioner: (1) a copy of the “no
merit” letter/brief; (2) a copy of counsel's petition to withdraw;
and (3) a statement advising petitioner of the right to proceed pro
se or by new counsel.
Where counsel submits a petition and no-merit letter that ...
satisfy the technical demands of Turner/Finley, the court — trial
court or this Court — must then conduct its own review of the
merits of the case. If the court agrees with counsel that the claims
are without merit, the court will permit counsel to withdraw and
deny relief.
Commonwealth v. Doty, 48 A.3d 451, 454 (Pa.Super. 2012) (quoting
Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa.Super. 2007)) (brackets
omitted).
After reviewing the record and counsel’s petition to withdraw, we find
that PCRA counsel has complied with the technical requirements of Turner
and Finley, supra. In her no-merit brief, PCRA counsel detailed the nature
and extent of her review, listed an issue of arguable merit, and explained why
she believed the claim was frivolous. Moreover, counsel demonstrated that
her no-merit brief was sent to Appellant and showed that she notified
Appellant of his right to raise additional points for consideration by proceeding
pro se or with the assistance of privately retained counsel. Therefore, we
must proceed with an independent review of this case. Doty, supra.
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PCRA counsel presents the issue of whether Appellant entered a knowing
and intelligent guilty plea in light of alleged misrepresentations by trial
counsel. In reviewing the lower court’s decision to deny Appellant’s PCRA
petition, we examine whether the PCRA court's determination “is supported
by the record and free of legal error.” Commonwealth v. Mitchell, 636 Pa.
233, 244, 141 A.3d 1277, 1283–84 (2016) (citations omitted). In order to be
eligible for PCRA relief, the petitioner must prove by a preponderance of the
evidence that his conviction or sentence resulted from one or more of the
enumerated circumstances found in 42 Pa.C.S.A. § 9543(a)(2), which includes
the ineffective assistance of counsel.
“It is well-established that counsel is presumed effective, and to rebut
that presumption, the PCRA petitioner must demonstrate that counsel's
performance was deficient and that such deficiency prejudiced him.”
Commonwealth v. Koehler, 614 Pa. 159, 36 A.3d 121, 132 (2012) (citing
Strickland v. Washington, 466 U.S. 688, 687-91 (1984)). To prevail on an
ineffectiveness claim, the petitioner has the burden to prove that “(1) the
underlying substantive claim has arguable merit; (2) counsel whose
effectiveness is being challenged did not have a reasonable basis for his or
her actions or failure to act; and (3) the petitioner suffered prejudice as a
result of counsel's deficient performance.” Commonwealth v. Sneed, 616
Pa. 1, 17, 45 A.3d 1096, 1106 (2012) (quoting Commonwealth v. Pierce,
567 Pa. 186, 786 A.2d 203, 213 (2001)). “A petitioner establishes prejudice
when he demonstrates “that there is a reasonable probability that, but for
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counsel's unprofessional errors, the result of the proceeding would have been
different.” Commonwealth v. Johnson, 600 Pa. 329, 345–46, 966 A.2d
523, 532–33 (2009) (quoting Strickland, 466 U.S. at 694). The failure to
satisfy any one of the three prongs will cause the entire claim to fail. Sneed,
616 Pa. at 18, 45 A.3d at 1106 (citation omitted).
In the amended petition, Appellant claimed he did not knowingly,
intelligently, or voluntarily enter his guilty plea due to alleged
misrepresentations by trial counsel as to the plea agreement offered by the
Commonwealth. Specifically, Appellant contends that trial counsel told him
that the Commonwealth had agreed Appellant would receive an aggregate
sentence of five to ten years’ imprisonment for the three counts of PWID and
the one count of Persons Not to Possess.
This Court has previously held that:
It is clear that a criminal defendant's right to effective
counsel extends to the plea process, as well as during trial.
However, [a]llegations 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. Wah, 42 A.3d 335, 338–39 (Pa.Super. 2012) (citations
and quotation marks omitted).
Despite Appellant’s claim that plea counsel misrepresented that
Appellant would receive a sentence of five to ten years’ imprisonment,
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Appellant signed a written guilty plea colloquy, which clearly indicated that
Appellant was entering an “OPEN PLEA OF GUILTY” to three counts of PWID
and one count of Persons Not to Possess; the written colloquy also states that
“[t]here is no plea bargain or other agreement relating to the plea to those
crimes except as stated below.” Guilty Plea Colloquy, at 2. There were no
remarks or information in the section below to lead Appellant to believe there
was any plea agreement in place. Appellant signed the colloquy and
specifically added his initials to indicate, inter alia, that (1) he had read and
understood the colloquy, (2) that he discussed the colloquy with his attorney
and had no questions about it, and (3) he had not been made any promises
in connection with the entry of his plea.
At the plea hearing, the prosecutor placed the relevant facts on the
record relevant to each charge. The factual basis for Appellant’s three PWID
charges was that he sold heroin on three separate occasions to a confidential
informant; in total, Appellant delivered 347 bags of heroin in all, each
containing one or more grams. Thereafter, a search warrant executed on
Appellant’s home revealed that he was in possession of two loaded firearms
despite the fact that he was not permitted to possess firearms due to his prior
convictions.
The prosecution also outlined the sentencing guideline ranges and the
statutory maximums for each of Appellant’s charges and emphasized that
Appellant’s extensive criminal record rendered him a repeat felon for the
purposes of his prior record score.
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When the trial court questioned Appellant about his decision to sign the
written colloquy, he reaffirmed that he had read the colloquy with the
assistance of his counsel and had no questions about it. Appellant again
confirmed that he had not been made any promises in connection with the
entry of his guilty plea. Notes of Testimony (N.T.), 3/11/16, at 5-6.
After accepting Appellant’s guilty plea, the trial court made the following
remarks to Appellant:
[The Court:] All right then, [Appellant], we’ll have you back here
for sentencing after your attorney has submitted his memo for me
to consider and after there’s a presentence investigation report
prepared. It essentially gives me a little bit of background as far
as your prior record and work history and that sort of thing. And
when I have you back here for sentencing, I will give you the
opportunity to speak to me and tell me anything you think I should
consider in deciding what a fair and just sentence will be.
All right. Any questions?
[Appellant:] No, ma’am.
N.T., 3/11/18, at 7-8 (emphasis added). After this exchange, Appellant did
not question the trial court’s assertion that it would decide Appellant’s
sentence or inform the court that the parties had agreed to a negotiated
sentence.
At sentencing on November 17, 2016, Appellant made the following plea
to the judge:
Your honor, I would truly – it would truly be a blessing to receive
the likes of a two-to-four year sentence with some probation, or
a two-and-a-half to five-year sentence with probation, or even the
likes of a three-to-six-year sentence running concurrent with my
parole sentence so I can humbly get on with my life, with my
lovely beautiful wife and children.
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N.T., 11/17/16, at 23 (emphasis added). In addition, Appellant asked the
court to sentence him within “the mitigated ranges of sentencing.” N.T.
11/17/16, at 22.
In addition, at the hearing on Appellant’s motion for reconsideration of
sentence, Appellant actually admitted that he knew there was no plea
agreement in place, but still asserted that he was under the impression that
he would receive a five to ten year sentence:
[The Court:] All right. [Appellant,] I’m going to interrupt you. And
the reason is in your motion, you said there’s something new that
I wasn’t aware of that you wanted me to consider, and I think all
of that was already told to me. So is there something new you
want to say?
[Appellant:] Yes, that I was under the fact – I was under the
impression that I was going to get a five to ten year deal.
[The Court:] All right. You pled open. There was no agreement.
You knew that, right?
[Appellant:] Yeah. Well, since I don’t have too much knowledge
of the law, when he gave me the agreement, I’m quite sure he
said a five-to-ten year deal.
N.T., 12/6/18, at 4 (emphasis added).
During that hearing, the trial court asked plea counsel about the alleged
agreement:
The Court: All right. Counsel, did you tell your client that he was
going to get five to ten years?
[Counsel:] … From the defense perspective, the Commonwealth’s
offer was 17 years. I believe that was the Commonwealth’s offer.
By way of plea bargaining, they reduced the number of counts.
One of the gun charges was dismissed and things of that nature,
and then my client and I discussed an open guilty plea. Prior to
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him pleading guilty, we went over the statutory maximums, the
guidelines, the possibility that you could run things consecutive,
things of this nature. So there was absolutely no indication
that there was an agreement of five years.
N.T., 12/6/18, at 5 (emphasis added). Based on the aforementioned
testimony, the PCRA court found Appellant was not credible in claiming that
he believed the parties had agreed to a five to ten year sentence. We agree
with the trial court’s finding that it is clear that Appellant understood that no
sentence had been negotiated and that the trial court had the discretion to
determine his sentence.
Upon review, we conclude that the record supports the PCRA court’s
determination that Appellant did not enter an unknowing or involuntary plea
as there was no merit for Appellant’s claim that he had been misled into
believing that he would be sentenced to five to ten years’ imprisonment. As
a result, we affirm the order dismissing Appellant’s petition and grant
counsel’s petition to withdraw.
Order affirmed. Petition to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/28/18
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