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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
RONALD DRAYTON :
:
Appellant : No. 191 MDA 2019
Appeal from the PCRA Order Entered January 29, 2019
In the Court of Common Pleas of Luzerne County Criminal Division at
No(s): CP-40-CR-0004335-2015
BEFORE: SHOGAN, J., STABILE, J., and PELLEGRINI, J.*
DISSENTING MEMORANDUM BY SHOGAN, J.: FILED JANUARY 02, 2020
My learned colleagues in the Majority present a persuasive analysis in
this matter. However, upon review of the certified record, I conclude that
Appellant has failed to establish that trial counsel was ineffective with regard
to the entry of Appellant’s guilty plea. Hence, I am compelled to respectfully
register my dissent.
The issue presented to the Court, as rephrased by the majority, is: “Did
counsel’s misadvi[c]e regarding the consequences of [Appellant’s] plea render
the plea involuntary?” Majority Memorandum at 6 (citing Appellant’s Brief at
3). In granting relief, the Majority states, “the meritorious basis of
[Appellant’s] ineffectiveness claim concerns … the unfulfilled promise that
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* Retired Senior Judge assigned to the Superior Court.
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[Appellant] would never serve any portion of the state sentence in state
custody or on state parole after the federal prison term had concluded.”
Majority Memorandum at 9 (emphasis in original). Upon review of the
relevant law and the certified record, I disagree with this conclusion.
When reviewing the propriety of an order denying PCRA relief, we
consider the record “in the light most favorable to the prevailing party at the
PCRA level.” Commonwealth v. Stultz, 114 A.3d 865, 872 (Pa. Super.
2015) (quoting Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super. 2014)
(en banc)). This Court is limited to determining whether the evidence of
record supports the conclusions of the PCRA court and whether the ruling is
free of legal error. Commonwealth v. Rykard, 55 A.3d 1177, 1183 (Pa.
Super. 2012). We grant great deference to the PCRA court’s findings that are
supported in the record and will not disturb them unless they have no support
in the certified record. Commonwealth v. Rigg, 84 A.3d 1080, 1084 (Pa.
Super. 2014).
Our Supreme Court has long stated that in order to succeed on a claim
of ineffective assistance of counsel, an appellant must demonstrate that (1)
the underlying claim is of arguable merit; (2) counsel’s performance lacked a
reasonable basis; and (3) the ineffectiveness of counsel caused the appellant
prejudice. Commonwealth v. Pierce, 786 A.2d 203, 213 (Pa. 2001). It is
presumed that the petitioner’s counsel was effective, unless the petitioner
proves otherwise. Commonwealth v. Williams, 732 A.2d 1167, 1177 (Pa.
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1999). Furthermore, claims of ineffective assistance of counsel are not self-
proving. Commonwealth v. Wharton, 811 A.2d 978, 986 (Pa. 2002).
It is clear that a criminal defendant’s right to effective counsel extends
to the plea process, as well as during trial. Commonwealth v. Allen, 833
A.2d 800, 802 (Pa. Super. 2003) (citing Commonwealth v. Hickman, 799
A.2d 136, 141 (Pa. Super. 2002)). However:
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.’”
Id. (quoting Hickman). Our law does not require that a defendant be totally
pleased with the outcome of his decision to plead guilty, only that his decision
be voluntary, knowing, and intelligent. Commonwealth v. Baldwin, 760
A.2d 883, 885 (Pa. Super. 2000).
In Commonwealth v. McCauley, 797 A.2d 920 (Pa. Super. 2001), we
explained that
[o]nce a defendant has entered a plea of guilty, it is
presumed that he was aware of what he was doing,
and the burden of proving involuntariness is upon
him. Therefore, where the record clearly
demonstrates that a guilty plea colloquy was
conducted, during which it became evident that the
defendant understood the nature of the charges
against him, the voluntariness of the plea is
established. A defendant is bound by the statements
he makes during his plea colloquy, and may not assert
grounds for withdrawing the plea that contradict
statements made when he pled.
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Commonwealth v. Stork, 737 A.2d 789, 790-791 (Pa. Super.
1999), appeal denied, 564 Pa. 709, 764 A.2d 1068 (2000)
(citations and quotations omitted). Determining whether a
defendant understood the connotations of his plea and its
consequences requires an examination of the totality of the
circumstances surrounding the plea. [Commonwealth v. Yager,
685 A.2d 1000 (Pa. Super. 1996)].
In order to determine the voluntariness of the plea
and whether the defendant acted knowingly and
intelligently, the trial court must, at a minimum,
inquire into the following six areas:
(1) Does the defendant understand the
nature of the charges to which he is
pleading guilty?
(2) Is there a factual basis for the plea?
(3) Does the defendant understand that
he has a right to trial by jury?
(4) Does the defendant understand that
he is presumed innocent until he is found
guilty?
(5) Is the defendant aware of the
permissible ranges of sentences and/or
fines for the offenses charged?
(6) Is the defendant aware that the judge
is not bound by the terms of any plea
agreement tendered unless the judge
accepts such agreement?
Commonwealth v. Young, 695 A.2d 414, 417 (Pa. Super.
1997).
McCauley, 797 A.2d at 922.
This Court has long stated that “even if there is an omission or defect in
the guilty plea colloquy, the guilty plea will not be deemed invalid if the
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circumstances surrounding the entry of the plea reveal that the defendant fully
understood the nature and consequences of his ... plea and that he ...
knowingly and voluntarily decided to plead guilty.” Commonwealth v.
Blackwell, 647 A.2d 915, 921-922 (Pa. Super. 1994) (citing
Commonwealth v. Fluharty, 632 A.2d 312 (Pa. Super. 1993)). A defendant
may knowingly and voluntarily plead guilty as a matter of strategy or
expedience even though he or she is unable or unwilling to admit guilt
regarding the crime(s) charged. Id. at 922. Thus, the court’s inquiry should
focus on whether the appellant understood what he was doing by specifically
looking at the plea colloquy to determine whether he did or did not understand
the plea. Id.
The PCRA court addressed Appellant’s claim of ineffective assistance of
counsel with the following cogent analysis in its opinion filed pursuant to
Pa.R.A.P. 1925(a):
A thorough review of the record in the instant matter
supports the [PCRA c]ourt’s conclusion that [Appellant] failed to
show that counsel’s stewardship resulted in an unknowing,
involuntary or unintelligent plea. [Appellant] was extensively
questioned at the May 5, 2017 guilty plea hearing to ensure the
soundness of his decision. Further, the validity of his responses,
as well as his review and comprehension of the signed written
guilty plea colloquy, was confirmed at the January 29, 2019 PCRA
hearing.
[Appellant] claims that based on counsel’s advice, he agreed
to plead guilty and to request that his state sentence run
concurrently to his federal sentence, so that he could serve the
entirety of the state sentence in the federal facility. As the record
clearly shows, however, prior to the [c]ourt’s acceptance of
[Appellant’s] guilty plea, [Appellant] was fully informed that the
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[c]ourt was not bound by any agreements reached by the parties
regarding sentencing, but could instead impose any sentence it
saw fit, and that the [c]ourt could not guarantee that [Appellant]
would serve his state sentence entirely in a federal facility. N.T.
5/5/17, at 6-8; N.T. 1/29/19 at 13-14. Guilty Plea Agreement and
Colloquy of Defendant signed 5/5/17 at 2-3. Thus [Appellant] was
clearly informed that whatever assumptions he and counsel had
made regarding the sentence did not bind the [c]ourt, and would
not necessarily come to pass. After being so informed and
acknowledging receipt of that information, [Appellant]
nevertheless chose to go forward with the plea process. As such,
he cannot now claim that his counsel’s stewardship led to his entry
into a guilty plea that was not knowing, voluntary and intelligent.
PCRA Court Opinion, 5/24/19, at 4-5. I agree.
My review of the record belies Appellant’s assertion that he was induced
by ineffective defense counsel to enter his plea involuntarily. The following
portion of the oral guilty plea colloquy informs my conclusion:
[THE COURT]: Has anyone promised you anything to plead guilty
other than your plea agreement?
[APPELLANT]: Yes.
[THE COURT]: Okay. What other promises were made to you
other than your plea agreement? Is somebody promising you
something to get [you to] plead guilty today, or are you pleading
of your own free will?
[APPELLANT]: Well, I was promised a certain sentence with
respect to my plea, yes.
[THE COURT]: Okay.
THE COURT: What is the sentence --
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[ASSISTANT ATTORNEY GENERAL]: Judge, he may
be referencing Subparagraph 4[B][1] of the guilty plea
agreement in which the Commonwealth has agreed
not to oppose [Appellant’s] request to serve any
sentence imposed by this [c]ourt concurrently with
the sentence he’s currently serving in Federal Court.
THE COURT: Okay. Is that what you’re referring to,
a concurrent sentence?
[APPELLANT]: Yes. For the most part, yes.
THE COURT: Okay. You said for the most part. Are
there any other promises that were made to get you
to plead guilty today?
[APPELLANT]: Aside from the concurrent sentence,
the fact that I wouldn’t serve any time in a state
penitentiary.
THE COURT: I’m not sure that – is that agreed to?
[ASSISTANT ATTORNEY GENERAL]: Not by the
Commonwealth, Your Honor.
N.T., 5/5/17, at 6-8 (emphasis added). This exchange between Appellant,
the trial court, and the assistant attorney general establishes that Appellant
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1 The written guilty plea agreement and colloquy contains the following term
and condition at Subparagraph 4(B):
B. The Commonwealth will not oppose [Appellant’s] request to
the sentencing court that any term of incarceration be served
concurrently with the sentence of incarceration imposed upon
[Appellant] by the United States District Court for the Middle
District of Pennsylvania in the case of United States of America v.
Ronald Drayton, 3:14-CR-00305-EMK-4.
Guilty Plea Agreement and Colloquy, 5/5/17, at 2, ¶4(B) (emphasis in
original).
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was informed the Commonwealth was not agreeing with Appellant’s
suggestion that he would not serve any time in a state prison. Accordingly, I
conclude that, prior to entry of his plea, Appellant was aware that there was
no promise that he would not serve a portion of his sentence in state prison.
Moreover, the written guilty plea colloquy contains the following
acknowledgement, which further restrains Appellant’s argument that he
entered his guilty plea in anticipation of any particular sentence:
8. THE SENTENCING COURT IS NOT BOUND BY ANY TERM AS TO
SENTENCE CONTAINED IN THIS AGREEMENT. I acknowledge that
any terms related to a sentence set forth in paragraph 4 above
are not binding on the [c]ourt and I have not been guaranteed a
specific sentence in exchange for this plea. The [c]ourt retains
the power to decide my sentence.
Guilty Plea Agreement and Colloquy, 5/5/17, at 3, ¶8 (capitalization in
original).
Hence, the certified record reflects Appellant was informed at the guilty
plea hearing that the Commonwealth was not in agreement with Appellant’s
belief that he would only serve his sentence in federal prison. In addition, the
signed written colloquy acknowledges that Appellant was not guaranteed a
specific sentence in exchange for his guilty plea. Consequently, there is no
support for the assertion that Appellant’s guilty plea was based upon trial
counsel’s promise of a particular sentence being served in a particular prison.
Therefore, I conclude that there is no merit to the underlying claim that trial
counsel was ineffective in advising Appellant to enter the guilty plea. The law
does not require that Appellant be completely satisfied with the outcome of
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his decision to plead guilty. Baldwin, 760 A.2d at 885. The law only requires
that a plea be voluntary, knowing, and intelligent. Id.
In conclusion, after examining the totality of circumstances surrounding
the entry of the plea, I am satisfied that Appellant had a full understanding of
the nature and consequences of his plea and that he knowingly and voluntarily
decided to enter the plea. Accordingly, it is my determination that his claim
of defense counsel ineffective assistance in this regard lacks merit, and I would
affirm the decision of the PCRA court.
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