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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
FLOYD NOEL :
:
Appellant : No. 686 WDA 2018
Appeal from the PCRA Order April 10, 2018
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0008001-2015
BEFORE: SHOGAN, J., OLSON, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY SHOGAN, J.: FILED MAY 22, 2020
Appellant, Floyd Noel, appeals from the order dismissing his petition
filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa. C.S. §§ 9541-
9546. After careful review, we affirm.
On direct appeal, this Court provided the following factual and
procedural history:
On May 30, 2015, at approximately 2:00 a.m., officers of the
Mckeesport Police Department observed Appellant fail to stop at a
stop sign and then turn into a shopping center without signaling.
Police instituted a traffic stop, activating their emergency lights
and sirens. The officer possessed personal knowledge that
Appellant had prior arrests for firearms and observed Appellant
lowering his left shoulder towards the floor of the vehicle. The
officer told Appellant the reason for the traffic stop, obtained
Appellant’s license and a rental agreement for the vehicle, and
asked Appellant if he had weapons on him. When Appellant
queried why the officer inquired about the weapons, the officer
asked Appellant to step out of the vehicle. Appellant sped off at
a high rate of speed, leaving his credentials with the police. The
original police officers, as well as a back-up unit, engaged in the
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pursuit of Appellant through the streets of McKeesport. Officers
estimated that Appellant reached speeds of 90 miles per hour. At
one point, Appellant almost collided head-on with one of the police
vehicles. Appellant eventually outran the police and they called
off the chase. Appellant turned himself over to authorities shortly
thereafter.
On October 22, 2015, the trial court held a bench trial and
found Appellant guilty of the aforementioned charges.[1] On
January 12, 2016, the trial court, with the benefit of a pre-
sentence investigation report, sentenced Appellant to an
aggregate term of 51 to 102 months of imprisonment. More
specifically, the trial court sentenced Appellant to consecutive
standard-range sentences for escape, fleeing or attempting to
elude police officers, and the three counts of [recklessly
endangering another person], with no further penalties on the
remaining offenses. Appellant filed a timely post-sentence motion
on January 14, 2015, arguing that his sentence was excessive.
Following a hearing on Appellant’s post-sentence motion, the trial
court denied relief by order entered on March 17, 2016. This
timely appeal followed.
Commonwealth v. Noel, 168 A.3d 322, 459 WDA 2016 (Pa. Super., filed
3/17/17). We affirmed. Id.
Appellant did not appeal from the decision of the Superior Court, and on
July 10, 2017, Appellant filed his timely PCRA petition.2 PCRA Petition,
7/10/17. The PCRA court appointed counsel for Appellant on October 2, 2017,
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1Appellant was convicted of one count of escape (18 Pa.C.S. § 5121); fleeing
or attempting to elude police officers (75 Pa.C.S. § 3733); obstructing
administration of law (18 Pa.C.S. § 5101); resisting arrest (18 Pa.C.S. §
5104); three counts or recklessly endangering another person (18 Pa.C.S. §
2705); and thirteen summary traffic offenses.
2 Pursuant to 42 Pa.C.S. § 9454(b)(1), a first PCRA petition must be filed
within one year from the date judgment becomes final. “[A] judgment
becomes final at the conclusion of direct review.” This Court filed its opinion
on March 17, 2017, as noted. Appellant did not appeal from this Court’s
decision. Appellant filed his pro se PCRA petition on July 10, 2017, within the
one-year prescribed period.
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and counsel filed an amended PCRA petition on March 6, 2018. Amended
PCRA Petition, 3/6/18. The PCRA court held a hearing on April 10, 2018, and
denied Appellant’s petition on April 11, 2018. Order, 4/11/18. Appellant filed
the instant appeal; both Appellant and the PCRA court complied with Pa.R.A.P.
1925.
Appellant presents the following question for our review:
I. Did the lower court abuse its discretion in denying the PCRA
petition insofar as [Appellant] established the merits of the
claim that his decision to proceed to trial rather than enter a
guilty plea was unknowing, unintelligent and involuntary due
to the ineffective assistance of trial counsel?
Appellant’s Brief at 4.
When reviewing the propriety of an order denying PCRA relief, 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. Robinson, 139 A.3d 178, 185 (Pa. 2016). We will
review PCRA appeals “in the light most favorable to the prevailing party at the
PCRA level.” Commonwealth v. Steckley, 128 A.3d 826, 831 (Pa. Super.
2015). The PCRA court’s findings will not be disturbed unless there is no
support for them in the certified record. Commonwealth v. Lippert, 85 A.3d
1095, 1100 (Pa. Super. 2014). Finally, we note that the “PCRA court’s
credibility determinations, when supported by the record, are binding on this
Court.” Commonwealth v. Medina, 92 A.3d 1210, 1215 (Pa. Super. 2014).
Generally, in this Commonwealth:
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[c]ounsel 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. In
Pennsylvania, we have refined the Strickland [v. Washington,
466 U.S. 668 (1984)] performance and prejudice test into a three-
part inquiry. Thus, to prove counsel ineffective, the petitioner
must show that: (1) his underlying claim is of arguable merit; (2)
counsel had no reasonable basis for his action or inaction; and (3)
the petitioner suffered actual prejudice as a result. See
[Commonwealth v.] Pierce[, 527 A.2d 973 (Pa. 1987) ]. If a
petitioner fails to prove any of these prongs, his claim fails.
Generally, counsel’s assistance is deemed constitutionally
effective if he chose a particular course of conduct that had some
reasonable basis designed to effectuate his client’s interests.
Where matters of strategy and tactics are concerned, a finding
that a chosen strategy lacked a reasonable basis is not warranted
unless it can be concluded that an alternative not chosen offered
a potential for success substantially greater than the course
actually pursued. To demonstrate prejudice, the petitioner must
show that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceedings would have
been different. A reasonable probability is a probability that is
sufficient to undermine confidence in the outcome of the
proceeding.
Commonwealth v. Charleston, 94 A.3d 1012, 1019 (Pa. Super. 2016)
(quoting Commonwealth v. Spotz, 84 A.3d 294, 311-312 (Pa. 2014) (some
internal citations omitted)). Moreover, “[a] court is not required to analyze
the elements of an ineffectiveness claim in any particular order of priority;
instead, if a claim fails under any necessary element of the ineffectiveness
test, the court may proceed to that element first.” Commonwealth v. Tharp,
101 A.3d 736, 747 (Pa. 2014).
In support of his appeal, Appellant argues that his counsel failed to
advise him of all of the plea offers that the prosecution related to counsel and
avers that counsel failed to “fully and accurately explain to [Appellant] the
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pros and cons of accepting a plea offer.” Appellant’s Brief at 9. Appellant
avers that if he had been fully apprised of all of the offers made to him – along
with the facts that if convicted he could be facing a sentence longer than
fifteen months of imprisonment and that he could receive consecutive
sentences - he would have taken the plea offer of fifteen months or less of
incarceration.3 Appellant’s Brief at 10. Appellant highlights a statement made
by the prosecutor during Appellant’s sentencing, which referenced an offer of
county time, as evidence of his trial counsel’s ineffectiveness.4 Id. at
11. Appellant also claims that his trial counsel never informed him of a plea
offer that involved a county sentence. Id. Appellant points to the testimony
he gave at the PCRA hearing as establishing that his counsel was ineffective
for giving him incorrect information regarding the plea offers, that counsel
lacked a reasonable basis for that failure, and that Appellant was prejudiced
by that failure. Id. 12-14.
In its brief, the Commonwealth avers that prior to trial, Appellant stated
on the record that (1) he was aware of the charges pending against him, (2)
he understood the maximum penalties he faced, and (3) he was satisfied with
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3 We note that after reviewing the PCRA transcript, it is unclear whether
Appellant ever received a plea offer of fifteen months of incarceration. The
plea deal discussed during the PCRA hearing, that Appellant rejected, was for
six to twenty-three months of incarceration.
4Specifically, during Appellant’s sentencing, the Commonwealth stated, “Yes,
Your Honor. I have nothing to add or change to the presentence report. But,
Your Honor, before we proceed to the non-jury [trial] [Appellant] was offered
many plea offers, including county time… .” Appellant’s Brief at 11 (citing N.T.
(Sentencing), 1/12/16, at 5).
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his legal representation. Commonwealth’s Brief at 9 (citing N.T. (Trial),
10/22/15, at 2-5). Moreover, the Commonwealth points out that Appellant
admitted that no one promised him any particular outcome. Id. The
Commonwealth also highlights the testimony of Appellant’s trial counsel given
during the PCRA hearing. Id. (citing N.T.(PCRA), 4/10/18, at 6). Counsel
testified that prior to trial, he informed Appellant of the offer of six to twenty-
three months of incarceration, which constitutes a county sentence. Id.
Counsel also testified that he encouraged Appellant to accept the offer given
the weakness of Appellant’s case. Id. Finally, the Commonwealth notes that
the PCRA court heard the testimony of Appellant, Appellant’s girlfriend, and
Appellant’s trial counsel and the PCRA court determined that trial counsel’s
testimony was credible. Commonwealth’s Brief at 12-13 (citing PCRA Court
Opinion, 5/13/19, at 5).
Generally, a PCRA petitioner seeking relief on the basis that ineffective
assistance of counsel caused him to reject a guilty plea must demonstrate the
following circumstance:
[B]ut for the ineffective advice of counsel there is a reasonable
probability that the plea offer would have been presented to the
court (i.e., that the defendant would have accepted the plea and
the prosecution would not have withdrawn it in light of intervening
circumstances), that the court would have accepted its terms, and
that the conviction or sentence, or both, under the offer’s terms
would have been less severe than under the judgment and
sentence that in fact were imposed.
Steckley, 128 A.2d at 832 (quoting Lafler v. Cooper, 132 S.Ct. 1376, 1385
(2012)). Further, we note that where a PCRA court’s credibility determination
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is supported by the record, we are bound by those credibility determinations
and will not disturb them on appeal. Commonwealth v. Marinez, 777 A.2d
1121, 1124 (Pa. Super. 2001). In Marinez, this Court opined that the
appellant’s claim that his counsel was ineffective for failing to convey a plea
offer was of no merit where the PCRA court held a hearing and found that the
petitioner’s trial counsel was credible when he testified that he informed
petitioner of a plea offer. Marinez, 777 A.2d at 1124-1125. Further, the
court stated that it specifically disbelieved petitioner’s testimony that his trial
counsel failed to inform him of the plea offer. Id. Indeed, “A PCRA court
passes on witness credibility at PCRA hearings, and its credibility
determinations should be provided great deference by reviewing
courts.” Commonwealth v. Johnson, 966 A.2d 523, 539 (Pa. 2009). In its
opinion, the PCRA court stated it reviewed the testimony given at the hearing
and found, “It is clear that [Appellant] was offered a plea agreement, and
clearly rejected it.” PCRA Court Opinion, 5/13/19, at 5. Further, the court
found, “In the instant case, [trial counsel] urged [Appellant] to accept a plea,
which [Appellant] rejected. Further, the PCRA [c]ourt did not find [trial
counsel] to be ineffective in his representation. The PCRA [c]ourt did not find
[Appellant’s] testimony to be credible or persuasive.” Id.
We conclude that the record supports the PCRA court’s credibility
determinations. Accordingly, Appellant is due no relief and we affirm the order
denying PCRA relief.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/22/2020
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