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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
LOANELL ELLINGTON :
:
Appellant : No. 349 EDA 2018
Appeal from the PCRA Order December 18, 2017
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0002611-2016,
CP-51-CR-0011170-2015
BEFORE: PANELLA, J., DUBOW, J., and NICHOLS, J.
MEMORANDUM BY PANELLA, J.: FILED MAY 30, 2019
Appellant, Loanell Ellington, challenges the order entered in the
Philadelphia County Court of Common Pleas, dismissing his first petition filed
pursuant to the Post-Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-
9546. Ellington asserts three challenges of ineffective assistance of counsel,
including two layered ineffectiveness claims. We affirm.
On September 24, 2015,1 Ellington was with Ricky Miller when they got
into an argument. While arguing, Miller struck Ellington in the back of the head
with a vacuum cleaner causing a laceration2. Ellington then retrieved a
butcher’s knife from his truck and returned to attack Miller, stabbing him
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1 This crime relates to docket number CP-51-CR-0011170-2015.
2 At some point, Miller also used a two by four to break out the windows of
Ellington’s truck. See N.T., Guilty Plea Hearing, 5/3/2017, at 14.
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approximately five times in the chest area. At least one of the stabs pierced
Miller’s heart.
Officers responded and Miller was rushed to the hospital where he
underwent open-heart surgery twice. Ellington arrived at the hospital to
receive medical attention for his head injuries. Upon entering, two police
officers heard Ellington state “I stabbed him.” N.T., Guilty Plea Hearing,
5/3/2017, at 13. Ellington was arrested and subsequently admitted his
involvement3 in a statement given to Philadelphia detectives.
On February 1, 2016,4 Miller was at his mother’s residence where he
resided, located at 1932 Haines Street in Philadelphia. Ellington and his son,
Loanell Ellington, Jr., arrived at the residence and both threatened to fight
Miller over the previous incident.
On May 3, 2017, Ellington entered a negotiated guilty plea5 for both
cases. On docket number CP-51-CR-0011170-2015, he pled guilty to
aggravated assault and possession of an instrument of crime (PIC). On docket
number CP-51-CR-0002611-2016, he pled guilty to terroristic threats.
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3The incident, specifically the part where Ellington is attacking Miller with a
butcher knife, was also recorded on video. See N.T., Guilty Plea Hearing,
5/3/2017, at 13.
4 This crime relates to docket number CP-51-CR-0002611-2016.
5 A mental health report and a pre-sentence investigation report were waived
since this was a negotiated plea.
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The parties agreed on an offense gravity score of 11 and a prior record
score of 5. With the deadly weapon enhancement, the guideline range was
ninety to one-hundred and eight months, plus or minus twelve.
The trial court imposed the negotiated recommended sentence of ten to
twenty years’ incarceration6 broken down as follows; eight and one half to
seventeen years’ incarceration on the aggravated assault charge to run
concurrently with one to two years’ incarceration on the PIC charge, and one
and a half to three years’ incarceration on the terroristic threats charge, to
run consecutive to the sentence on the first bill.
Ellington did not file post-sentence motions or a direct appeal. On
September 5, 2017, Ellington filed a timely pro se PCRA petition in which he
claimed ineffective assistance of counsel for failure to file a motion to
reconsider sentence; challenged the fact that his Guilty Plea Colloquy was not
signed and sealed by the court; claimed his guilty plea was not knowing,
intentional and voluntary because the trial counsel misled him; and asserted
his plea was invalid due to his claim of self-defense. Counsel was appointed,
but later filed a Finley7 “no-merit” letter and a motion to withdraw.
On December 18, 2017, the PCRA court permitted counsel to withdraw
and dismissed the petition. This appeal followed.
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6 The trial court agreed to give Ellington credit for time served.
7 Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988).
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Ellington’s three claims on appeal all assert ineffective assistance of
counsel. “Our standard of review for issues arising from the denial of PCRA
relief is well-settled. We must determine whether the PCRA court’s ruling is
supported by the record and free of legal error.” Commonwealth v. Presley,
193 A.3d 436, 442 (Pa. Super. 2018) (citation omitted).
With respect to claims of ineffective assistance of counsel, we begin with
the presumption that counsel is effective. See Commonwealth v. Spotz, 18
A.3d 244, 260 (Pa. 2011). To prevail on an ineffectiveness claim, a petitioner
must plead and prove, by a preponderance of the evidence, three elements:
“(1) the underlying legal claim has arguable merit; (2) counsel had no
reasonable basis for his action or inaction; and (3) [the petitioner] suffered
prejudice because of counsel's action or inaction.” Id., at 260 (citations
omitted).
In Ellington’s first issue, he argues trial counsel was ineffective for failing
to file a post-sentence motion to reconsider sentence. Our Supreme Court has
held that the failure to file post-sentence motions does not fall within the
limited ambit of situations where a defendant alleging ineffective assistance
of counsel need not prove prejudice to obtain relief. See Commonwealth v.
Reaves, 923 A.2d 1119 (Pa. 2007). Therefore, Ellington bears the burden of
pleading and proving that trial counsel's failure to file a post-sentence motion
prejudiced him. In other words, Ellington must show that if counsel had filed
a post-sentence motion, it would have been granted. See Commonwealth
v. Liston, 977 A.2d 1089, 1092 (Pa. 2009).
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In addition, with respect to guilty pleas,
[o]ur 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 long standing 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 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. Pollard, 832 A.2d 517, 523-24 (Pa. Super. 2003)
(citations omitted).
In a memorandum opinion, the trial court explicitly stated that Ellington
could not have persuaded it to modify the sentence because it was a
negotiated sentence and Ellington entered into the negotiated guilty plea
knowingly, voluntarily and intelligently. See Trial Court Memorandum Opinion,
1/30/2018, at 4. Ellington concedes that he “understood” the nature of the
charges against him and the plea to which he was agreeing, and that he
voluntarily and intelligently entered his guilty plea. See Appellant’s Brief, at
11.
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Ellington claims that he only plead guilty because his plea counsel
promised him he would only receive a sentence of seven and one half to fifteen
years. However, Ellington testified “No” at his guilty plea hearing in response
to being asked, “Has anyone made you any promises other than the
negotiated recommended sentence to get you to plead guilty in this case?”
N.T., Guilty Plea Hearing, 5/3/2017, at 11-12. He further testified that he was
satisfied with his plea counsel. See id., at 10. In addition, the written colloquy,
which Ellington signed, included a clear statement that “Nobody promised me
anything or threatened me or forced me to plead guilty. I, myself, have
decided to plead guilty. I know what I say today is final.” Written Guilty Plea
Colloquy, 5/3/2017, at 1.
Ellington is bound by his testimony. See Commonwealth v. Willis, 68
A.3d 997, 1009 (Pa. Super. 2013); Pollard. He may not now argue that this
testimony was false in attempting to establish that his plea was involuntary.
Further, he has offered no evidence to show that he was promised a lower
sentence.
We therefore agree with the trial court that Ellington has failed to prove
that he was prejudiced by trial counsel's failure to file a post-sentence motion.
Therefore, we agree that Ellington’s claim that counsel was ineffective for
failure to file post-sentence motions is meritless.
In his second issue on appeal, Ellington argues trial counsel was
ineffective for failing to move to withdraw his guilty plea based on the trial
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court’s failure to sign the written guilty plea colloquy. He includes a layered
ineffectiveness claim as well, arguing PCRA counsel was ineffective for failing
to present trial counsel’s ineffectiveness on this matter.
Ellington is not entitled to relief on this issue, as he did not preserve the
claim for our review. He did not raise this claim regarding trial counsel in his
PCRA petition. Further, he did not raise this claim regarding PCRA counsel
before the PCRA court. See Commonwealth v. Ford, 44 A.3d 1190, 1201
(Pa. Super. 2012) (“Claims of PCRA counsel ineffectiveness cannot be raised
for the first time after a notice of appeal has been taken from the underlying
PCRA matter.”) As a result, we find this layered ineffectiveness claim waived8.
In his last issue on appeal, Ellington argues trial counsel was ineffective
for failing to raise a potential self-defense argument. Again, he includes a
layered ineffectiveness claim, arguing PCRA counsel was ineffective for failing
to present trial counsel’s ineffectiveness on this matter.
It is well settled that when a defendant has entered a negotiated guilty
plea, his “plea ... amounts to a waiver of all defects and defenses except those
concerning the jurisdiction of the court, the legality of the sentence, and the
validity of the guilty plea.” Commonwealth v. Reichle, 589 A.2d 1140, 1141
(Pa. Super. 1991).
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8 We note that although we find this issue waived, we nonetheless would have
found it without merit, as there is no requirement that a written colloquy be
countersigned by the court.
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Here, both Ellington’s written and oral colloquies demonstrate that his
guilty plea was entered knowingly, intelligently and voluntarily. See
Commonwealth v. Reid, 117 A.3d 777, 783 (entry of negotiated plea is
strong indicator of voluntariness of plea; law does not require that defendant
be pleased with outcome of decision to enter guilty plea, but just that decision
was knowingly, voluntarily and intelligently made). Ellington stated on the
record during his oral guilty plea colloquy that he understood the forms as he
went over them and had ample time to discuss his trial rights and appellate
rights with his attorney. See N.T., Guilty Plea Hearing, 5/3/2017, at 10. He
signed similar statements in the written guilty plea colloquy, which clearly
stated “I HAVE READ ALL OF THE ABOVE, OR MY LAWYER READ IT TO ME. I
UNDERSTAND IT. MY ANSWERS ARE ALL TRUE AND CORRECT.” Written Guilty
Plea Colloquy, 5/3/2017, at 3. The written colloquy also included a statement
that “If I plead guilty, I am giving up the right to defend my case. I cannot
come back to court later and say that I was not guilty. Once I plead guilty, I
can no longer complain that I was innocent and did not commit the crime.”
Id., at 3.
We find Ellington’s final issue waived, as he knowingly, voluntarily, and
intelligently entered into the guilty plea, and thus the waiver of defenses was
binding. Trial counsel would not have had any basis upon which to raise the
issue of self-defense. As a result, PCRA counsel would have no basis upon
which to raise a claim of trial counsel’s ineffectiveness.
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As we agree with the PCRA court that none of Ellington’s issues merit
relief, we affirm the PCRA court’s order dismissing his petition for relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/30/19
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