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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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. :
:
WILLIAM WHARTON, : No. 3887 EDA 2017
:
Appellant :
Appeal from the PCRA Order, October 31, 2017,
in the Court of Common Pleas of Philadelphia County
Criminal Division at No. CP-51-CR-0006122-2013
BEFORE: GANTMAN, P.J., McLAUGHLIN, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JANUARY 04, 2019
William Wharton appeals from the October 31, 2017 order denying his
petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A.
§§ 9541-9546. After careful review, we affirm.
The relevant facts and procedural history of this case, as gleaned from
the certified record, are as follows. On June 11, 2010, appellant shot and
killed the victim, William Mack, in Philadelphia following a dispute over an
iPod. (Notes of testimony, 6/5/14 at 21-25.) Appellant was subsequently
arrested and charged with third-degree murder and related offenses in
connection with this incident. On June 5, 2014, appellant entered into a
negotiated guilty plea to third-degree murder, criminal conspiracy, and
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robbery.1 That same day, the trial court sentenced appellant to an aggregate
term of 30 to 60 years’ imprisonment. At all relevant times during his guilty
plea and sentencing, appellant was represented by Todd Henry, Esq.
(“plea counsel”). Appellant did not file any post-sentence motions or a direct
appeal.
On June 22, 2015, appellant filed the instant pro se PCRA petition, and
David Rudenstein, Esq. (“PCRA counsel”), was appointed to represent him.
On April 7, 2017, PCRA counsel filed an amended PCRA petition on appellant’s
behalf, arguing that plea counsel was ineffective by inducing appellant to enter
an unknowing and involuntary guilty plea. (See amended PCRA petition,
4/7/17 at ¶¶ 10-11.) On May 24, 2017, the Commonwealth filed a motion to
dismiss appellant’s PCRA petition. Thereafter, on August 1, 2017, PCRA
counsel filed a supplemental, amended PCRA petition, arguing that plea
counsel was ineffective in failing to file a direct appeal. (See supplemental
amended PCRA petition, 8/1/17 at ¶ 3.) Following several continuances, the
PCRA court conducted an evidentiary hearing on appellant’s petition on
October 31, 2017. That same day, the PCRA court entered an order denying
appellant’s petition. This timely appeal followed on November 29, 2017. On
December 13, 2017, the trial court directed appellant to file a concise
statement of errors complained of on appeal, in accordance with
Pa.R.A.P. 1925(b), within 30 days. Appellant filed his Rule 1925(b) statement
1 18 Pa.C.S.A. §§ 2502(c), 903, and 3701(a)(1), respectively.
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on March 1, 2018, and the trial court filed its Rule 1925(a) opinion on
March 26, 2018.2
Appellant raises the following issue for our review:
Did the PCRA [c]ourt err when it failed to grant PCRA
relief after conducting a [guilty pleas h]earing and
learning that [appellant] was mentally challenged and
most clearly did not understand most of everything
that had occurred to him [at said hearing]?
2Appellant’s Rule 1925(b) statement, which was filed well past the 30-day
deadline imposed by the trial court, is untimely on its face. The trial court’s
Rule 1925 order reads as follows:
AND NOW, this 13th day of December, 2017, it is
hereby ORDERED and DECREED that [appellant]
shall file with the Clerk of Court, Court of Common
Pleas, Criminal Trial Division and concurrently serve
the Honorable Rose Marie DeFino-Nastasi with a
statement of matters complained of on appeal
pursuant to Pennsylvania Rule of Appellate Procedure
1925(b) by January 13, 2017.
Pa.R.A.P. 1925(b) order, 12/13/17.
Clearly, the order is not in compliance with Rule 1925(b)(3)(iv) in that
it does not “specify . . . that any issue not properly included in the Statement
timely filed and served pursuant to subdivision (b) shall be deemed waived.”
Pa.R.A.P. 1925(b)(3)(iv). Recent opinions from this court have declined to
find waiver if the trial court does not expressly comply with subsection
1925(b)(3)(iv). See Commonwealth v. Jones, 193 A.3d 957, 961-962
(Pa.Super. 2018); Commonwealth v. Bush, A.3d , 2018 WL
4782153 (Pa.Super. 2018). Although this writer has some concerns with
applying the Subsection 1925(b)(3)(iv) analysis to an untimely filed
Rule 1925(b) statement when the trial court specified the time for filing,
clearly pursuant to Subsection 1925(c)(3), this court may determine that
counsel was ineffective for the late filing and either decide the case on the
merits or remand for the filing of a new statement and/or trial court opinion.
Here, we find it unnecessary to remand and will address appellant’s issues on
the merits.
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Appellant’s brief at 3.
Proper appellate review of a PCRA court’s dismissal of a PCRA petition
is limited to the examination of “whether the PCRA court’s determination is
supported by the record and free of legal error.” Commonwealth v. Miller,
102 A.3d 988, 992 (Pa.Super. 2014) (citation omitted). “This Court grants
great deference to the findings of the PCRA court, and we will not disturb those
findings merely because the record could support a contrary holding.”
Commonwealth v. Patterson, 143 A.3d 394, 397 (Pa.Super. 2016) (citation
omitted). In order to be eligible for PCRA relief, a defendant must plead and
prove by a preponderance of the evidence that his conviction or sentence
arose from one or more of the errors listed at 42 Pa.C.S.A. § 9543(a)(2).
Further, these issues must be neither previously litigated nor waived.
42 Pa.C.S.A. § 9543(a)(3).
Here, the crux of appellant’s claim is that plea counsel’s ineffectiveness
induced him to enter an unknowing and involuntary guilty plea. (Appellant’s
brief at 5.) Appellant avers that plea counsel “failed to realize, or overlooked”
the fact that appellant was a “troubled” and “uneducated” man and “did not
fully comprehend the meaning and scope of his [g]uilty [p]lea” that would
subject him to a 30 to 60-year term of imprisonment. (Id. at 6.) The record
belies this claim.
In Commonwealth v. Lynch, 820 A.2d 728 (Pa.Super. 2003), appeal
denied, 835 A.2d 709 (Pa. 2003), we explained that the PCRA will provide
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relief to an appellant if ineffective assistance of counsel caused him to enter
an unknowing and involuntary guilty plea. We conduct our review of such a
claim in accordance with the three-pronged ineffectiveness test under
Section 9543(a)(2)(ii) of the PCRA. See Lynch, 820 A.2d at 732. To prevail
on a claim of ineffective assistance of counsel under the PCRA, a petitioner
must plead and prove by a preponderance of the evidence that counsel’s
ineffectiveness “so undermined the truth-determining process that no reliable
adjudication of guilt or innocence could have taken place.” 42 Pa.C.S.A.
§ 9543(a)(2)(ii). Specifically, a petitioner must establish the following three
factors: “first[,] the underlying claim has arguable merit; second, that counsel
had no reasonable basis for his action or inaction; and third, that Appellant
was prejudiced.” Commonwealth v. Charleston, 94 A.3d 1012, 1020
(Pa.Super. 2014) (citation omitted), appeal denied, 104 A.3d 523 (Pa.
2014). “A petitioner establishes prejudice when he demonstrates that there
is a reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” Commonwealth v.
Johnson, 966 A.2d 523, 533 (Pa. 2009) (citations and internal quotation
marks omitted).
“[C]ounsel is presumed to be effective and the burden of demonstrating
ineffectiveness rests on appellant.” Commonwealth v. Ousley, 21 A.3d
1238, 1242 (Pa.Super. 2011) (citation omitted), appeal denied, 30 A.3d 487
(Pa. 2011). Additionally, we note that counsel cannot be found ineffective for
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failing to raise a claim that is devoid of merit. See, e.g., Commonwealth v.
Ligons, 971 A.2d 1125, 1146 (Pa. 2009).
This court has long recognized that “[a] criminal defendant has the right
to effective counsel during a plea process as well as during trial.” Patterson,
143 A.3d at 397 (citation omitted). “The law does not require that appellant
be pleased with the outcome of his decision to enter a plea of guilty[; a]ll that
is required is that [appellant’s] decision to plead guilty be knowingly,
voluntarily, and intelligently made.” Commonwealth v. Diaz, 913 A.2d 871,
873 (Pa.Super. 2006) (citation and internal quotation marks omitted), appeal
denied, 931 A.2d 656 (Pa. 2007).
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. Barndt, 74 A.3d 185, 192 (Pa.Super. 2013) (citation
omitted).
In order to ensure a voluntary, knowing, and intelligent plea, trial courts
are required make the following inquires in the guilty plea colloquy:
(1) the nature of the charges to which he is pleading
guilty; (2) the factual basis for the plea; (3) he is
giving up his right to trial by jury; (4) and the
presumption of innocence; (5) he is aware of the
permissible ranges of sentences and fines possible;
and (6) the court is not bound by the terms of the
agreement unless the court accepts the plea.
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Commonwealth v. Kpou, 153 A.3d 1020, 1023 (Pa.Super. 2016) (citation
omitted); see also Pa.R.Crim.P. 590. “Pennsylvania law presumes a
defendant who entered a guilty plea was aware of what he was doing, and the
defendant bears the burden of proving otherwise.” Kpou, 153 A.3d at 1024
(citation omitted).
Lastly, we note that, when a defendant seeks to withdraw a plea after
sentencing, he must demonstrate “prejudice on the order of manifest injustice
before withdrawal is justified.” Commonwealth v. Yeomans, 24 A.3d 1044,
1046 (Pa.Super. 2011) (citation omitted). “A plea rises to the level of manifest
injustice when it was entered into involuntarily, unknowingly, or
unintelligently.” Commonwealth v. Stork, 737 A.2d 789, 790 (Pa.Super.
1999), appeal denied, 764 A.2d 1068 (Pa. 2000).
Here, appellant’s contention that plea counsel induced him to enter an
unknowing and involuntary guilty plea lacks arguable merit. The record
reflects that on June 5, 2014, appellant executed a written guilty plea colloquy
wherein he acknowledged that he understood he was pleading guilty to
third-degree murder, criminal conspiracy, and robbery, and that no other
promises or threats were made to him with regard to his guilty plea or
sentence. (Written guilty plea colloquy, 6/5/14 at 1.) Appellant further
acknowledged in the written guilty plea colloquy that, “[t]here is no plea
bargain or agreement of any kind, except that the District Attorney promised
to: [r]ecommend a sentence of not more than 30 to 60 [years] [months].”
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(Id.) Appellant also acknowledged, inter alia, that he had finished high
school, could read and write English, and that he did not have any mental
health problems. (Id.) Additionally, appellant indicated that he had enough
time to speak with plea counsel about his case and was satisfied with plea
counsel’s representation. (Id. at 3.)
Thereafter, on June 5, 2014, the trial court conducted an on-the-record
colloquy, as mandated by Rule 590. The transcript of the guilty plea colloquy
demonstrates that the trial court inquired at great length with regard to
appellant’s decision to plead guilty. Appellant indicated during this hearing
that he had graduated from high school, could read and write English, and
was not under the influence of drugs and alcohol. (Notes of testimony, 6/5/14
at 4.) Appellant also acknowledged that he has never been treated for mental
illness, understood all the questions in the written plea colloquy, and had
signed it voluntarily. (Id. at 4, 14-15.) Appellant reiterated that he reviewed
the written plea colloquy with plea counsel prior to signing it, did not have any
questions for counsel or the trial judge, and was satisfied with plea counsel’s
representation. (Id. at 14-16.) The record further reflects that the trial court
provided appellant with a lengthy explanation of his trial and appellate rights,
and appellant repeatedly indicated that he understood them. (See id. at
5-13.)
Our review of the guilty plea transcript further reveals that appellant
was given a factual basis for the plea and acknowledged that he understood
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the nature of the charges to which he is pleading guilty and the permissible
ranges of sentences and fines possible for each count. (See id. at 16-19,
21-25.) With respect to the imposition of sentence, appellant indicated that
he understood that the trial court could impose an aggregate sentence of
30 to 60 years’ imprisonment, pursuant to the terms of his negotiated plea
agreement, but that the court was not bound by the agreement unless it
accepted the plea. (Id. at 18-19.)
Specifically, the following exchange took place during the plea hearing:
THE COURT: The Commonwealth has agreed that in
exchange for your plea to third degree murder, they
will not proceed on first degree murder and you will
receive a sentence of 20 to 40 years on the third
degree murder charge, with a sentence of 10 to
20 years to run consecutively on the conspiracy
charge and no further penalty on the robbery charge,
making your total sentence 30 to 60 years.
Do you understand that?
[APPELLANT]: Yes.
Id. at 20. Thereafter, appellant informed the trial court that he was pleading
guilty of his own free will and that no one had promised him anything in
exchange for entering this plea. (Id.)
Upon review, we cannot conclude that appellant was induced by plea
counsel to enter an unknowing and unintelligent guilty plea. Rather, we find
the trial court made the requisite inquiries that satisfied that appellant’s plea
was entered into knowingly, intelligently, and voluntarily. Appellant willingly
availed himself of the benefits of the plea agreement and is bound by the
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statements he made during his written and oral guilty plea colloquies. See
Commonwealth v. Turetsky, 925 A.2d 876, 881 (Pa.Super. 2007) (stating,
“[a] person who elects to plead guilty is bound by the statements he makes
in open court while under oath and he may not later assert grounds for
withdrawing the plea which contradict the statements he made at his plea
colloquy.” (citation omitted)), appeal denied, 940 A.2d 365 (Pa. 2007).
Accordingly, for all the foregoing reasons, appellant’s ineffectiveness claim
must fail.
Based on the foregoing, we affirm the October 31, 2017 order of the
PCRA court denying appellant’s PCRA petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/4/19
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