J-S39039-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DERRICK FORD :
:
Appellant : No. 3216 EDA 2018
Appeal from the PCRA Order Entered October 17, 2018
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0005785-2013,
CP-51-CR-0005786-2013
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DERRICK FORD :
:
Appellant : No. 558 EDA 2020
Appeal from the PCRA Order Entered October 17, 2018
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0005785-2013,
CP-51-CR-0005786-2013
BEFORE: LAZARUS, J., OLSON, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: FILED SEPTEMBER 28, 2020
Derrick Ford (Ford) appeals from the order entered in the Court of
Common Pleas of Philadelphia County (PCRA court) dismissing his first petition
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* Retired Senior Judge assigned to the Superior Court.
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filed pursuant to the Post-Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-
9546. We affirm.
I.
In the early morning hours of April 14, 2013, Ford entered the bedroom
of his 13-year-old daughter and sexually assaulted her. When she began to
cry, Ford grabbed her neck. Ford’s wife entered the bedroom to see what was
happening. Ford charged at and punched her. As she tried to get away, Ford
retrieved a BB gun and hit her with it. As Ford did this, the daughter rushed
out of the apartment to get help. The police soon arrived and arrested Ford.
The daughter later revealed that Ford had molested her for over two years.
Ford was charged in two separate cases. In the case involving his
daughter, Ford was charged with rape, involuntary deviate sexual intercourse
(IDSI), aggravated indecent assault, unlawful restraint (serious bodily injury),
statutory sexual assault (8-11 years older), sexual assault, incest, false
imprisonment, endangering welfare of children, corruption of minors,
possessing an instrument of crime (PIC), indecent exposure, indecent assault,
simple assault and recklessly endangering another person.1 In the case
involving his wife, Ford was charged with aggravated assault, unlawful
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1 18 Pa.C.S. §§ 3121(a)(1), 3123(a)(1), 3125(a)(1), 2902(a)(1),
3122.1(a)(2), 3124.1, 4302(a), 2903(a), 4304(a)(1), 6301(a)(1)(i), 907(a),
3127(a), 3126(a)(1), 2701(a) and 2705, respectively.
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restraint, PIC, terroristic threats, simple assault, recklessly endangering
another person and false imprisonment.2
In September 2013, the Commonwealth offered Ford a plea agreement
on both cases with an agreed-upon sentence of 15 to 30 years’ imprisonment.
After Ford obtained new counsel in April 2014, the cases were continued for
over a year until trial was finally scheduled for October 2015. On October 8,
2015, however, Ford decided to enter an open guilty plea to all of the charges
except for statutory sexual assault and PIC in the daughter’s case. On
February 11, 2016, the trial court imposed an aggregate sentence of 15 to 30
years’ imprisonment followed by 5 years of probation. Ford did not appeal.
On October 5, 2016, Ford filed a pro se PCRA petition. Counsel was
appointed and filed an amended petition on March 13, 2017. Among other
claims, Ford alleged that plea counsel was ineffective “for providing incorrect
advice during the guilty plea stage which caused [Ford] to enter into the plea
unknowingly.” Ford averred that counsel promised him that he would be
sentenced to no more than 4 to 8 years’ imprisonment if he pled guilty. Based
on this promise, Ford alleged that he was induced into an unknowing guilty
plea and would have gone to trial if not for his counsel’s incompetent advice.
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218 Pa.C.S. §§ 2702(a), 2902(a)(1), 907(a), 2706(a)(1), 2701(a), 2705 and
2903(a), respectively.
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On August 30, 2017, the PCRA court held a status hearing. While not
granting an evidentiary hearing on his guilty plea claim, the PCRA court
granted one on whether counsel was ineffective for not filing a direct appeal.
After several delays, the evidentiary hearing was scheduled for October 17,
2018. At the hearing, however, PCRA counsel informed the court that Ford
wanted to withdraw his direct appeal claim and file an appeal on his guilty plea
claim. When Ford confirmed that was what he wanted, the PCRA court stated
it would dismiss the petition. After entry of the order, Ford filed notices of
appeal in both cases on November 5, 2018.3
On appeal, Ford challenges the PCRA court’s denial of his claim that plea
counsel was ineffective in advising him to enter an open guilty plea.4
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3 Ford filed two notices of appeal but listed both trial docket numbers in the
captions. After time-stamping each notice, the trial court sent only the notice
of appeal for trial court docket number CP-51-CR-0005786, which we
docketed at 3216 EDA 2018. On February 18, 2020, this Court docketed the
notice of appeal for trial court docket number CP-51-CR-0005785 at 558 EDA
2020. Both cases were consolidated on August 4, 2020. Additionally, we need
not quash this appeal because of both trial court docket numbers being listed
in the captions of each notice of appeal. See Commonwealth v. Johnson,
--- A.3d ---, 2020 WL 3869723, at *4-5 (Pa. Super. July 9, 2020) (en banc)
(holding that the appellant’s filing the correct number of notices of appeal to
match the number of trial court cases but listing all of the docket numbers on
each notice of appeal did not warrant quashing the appeal).
4 “Our standard of review of the denial of a PCRA petition is limited to
examining whether the record evidence supports the court’s determination
and whether the court’s decision is free of legal error.” Commonwealth v.
Postie, 200 A.3d 1015, 1022 (Pa. Super. 2018) (en banc) (citation omitted).
Further, “[a] petitioner is not entitled to a PCRA hearing as a matter of right;
the PCRA court can decline to hold a hearing if there is no genuine issue
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II.
To prevail on a claim alleging ineffectiveness of counsel, a PCRA
petitioner must demonstrate:
(1) that the underlying claim is of arguable merit; (2) that
counsel’s course of conduct was without a reasonable basis
designed to effectuate his client’s interest; and (3) that he was
prejudiced by counsel’s ineffectiveness, i.e.[,] there is a
reasonable probability that but for the act or omission in question
the outcome of the proceedings would have been different.
Commonwealth v. Grayson, 212 A.3d 1047, 1054 (Pa. Super. 2019)
(citation omitted).
With respect to ineffectiveness claims related to the entry of a guilty
plea, the following principles are applicable:
[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 (Pa. Super. 2012) (citations,
quotation and quotation marks omitted).
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concerning any material fact, the petitioner is not entitled to PCRA relief, and
no purpose would be served by any further proceedings.” Id. (citation
omitted).
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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. Commonwealth v.
Timchak, 69 A.3d 765, 769 (Pa. Super. 2013). The law does not require that
the defendant be pleased with the outcome of his decision to enter a plea of
guilty; instead, all that is required is that his decision to plead guilty be
knowingly, voluntarily and intelligently made. Commonwealth v.
Anderson, 995 A.2d 1184, 1192 (Pa. Super. 2010).
When addressing the voluntariness of a guilty plea, we have explained:
[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.
Commonwealth v. McCauley, 797 A.2d 920, 922 (Pa. Super. 2001) (citation
omitted).
To ensure that a guilty plea is being entered voluntary, knowing and
intelligently, trial courts must ask the following questions during their colloquy
with the defendant:
1) Does the defendant understand the nature of the charges to
which he or she is pleading guilty or nolo contendere?
2) Is there a factual basis for the plea?
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3) Does the defendant understand that he or she has the right to
a trial by jury?
4) Does the defendant understand that he or she is presumed
innocent until 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. Bedell, 954 A.2d 1209, 1212 (Pa. Super. 2008) (citation
omitted). “In determining whether a guilty plea was entered knowingly and
voluntarily, ... a court is free to consider the totality of the circumstances
surrounding the plea.” Commonwealth v. Flanagan, 854 A.2d 489, 513
(Pa. 2004) (citation and quotation marks omitted). Additionally, the oral
colloquy may be supplemented by a written colloquy that is read, completed
and signed by the defendant and then made a part of the plea proceedings.
Commonwealth v. Morrison, 878 A.2d 102, 108 (Pa. Super. 2005).
III.
Though he raises two issues, Ford essentially argues that his guilty plea
was involuntarily entered on the advice of plea counsel, and that the PCRA
court erred in finding there was no material issue of fact on this claim. 5 Ford
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5Ford’s first issue alleges there is a genuine issue of material fact as to why
he decided to enter an open guilty plea and that an evidentiary hearing should
be held to determine why he chose to enter the plea. See Ford’s Brief at 10-
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reasserts that he entered the plea only because his counsel promised him that
he would receive a sentence of 4 to 8 years’ imprisonment, despite the fact
that he was entering an open guilty plea with no agreed-upon sentence.6
Because such a lenient sentence was unlikely in light of the charges, Ford
argues that plea counsel’s advice was not within the range of competent
advice. Because he relied on this incompetent advice, Ford now argues that
he is entitled to withdraw his plea and pursue a jury trial.
Ford’s claim, however, is belied by his written and oral colloquies. In
particular, Ford’s oral colloquy with the trial court at the guilty plea hearing
dispelled any notions that he would receive a lenient sentence for pleading
guilty to sexually assaulting his daughter and then assaulting his wife when
she tried to stop him.
Significantly, early in the hearing, the trial court asked the
Commonwealth if there had been any plea offers:
THE COURT: [W]as there an offer for a negotiated plea in this
case?
[DA]: Yes, Your Honor. The offer was back in -- it was made and
conveyed and rejected in September of 2013. It was an offer for
ten to 20 years, I believe. Ten to 15 years. I mean, ten to 25
years -- 15 to 30. I’m sorry; it was 15 to 30, plus five years
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12. This issue, however, does not raise a cognizable claim of ineffectiveness
that would warrant an evidentiary hearing.
6 Ford asserts in his brief that he rejected the Commonwealth’s initial plea
offer based on plea counsel’s advice. See Ford’s Brief at 14, 25. Plea counsel,
however, did not enter his appearance until April 2014, which would have
been after the plea was rejected in 2013.
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reporting probation. That was the pre-trial offer, that was
rejected already.
THE COURT: Fifteen to 30 years was the offer. Mr. Ford, did you
know about that offer?
THE DEFENDANT: Yes, sir.
THE COURT: And you didn’t want that offer, you didn't want 15 to
30; right?
THE DEFENDANT: No, sir.
THE COURT: What you’re doing, is, you’re pleading guilty to a
ridiculous number of charges. I don’t know why the DA won’t
reduce the number of charges, but she’s insisting on all the counts
on both transcripts.
N.T., 10/8/15, at 7-8.
Following this, Ford confirmed that he wished to plead guilty and that
he understood that sentencing would be at the court’s discretion and that he
had not been promised anything; had not been threatened; had not been
coerced to enter his plea; and understood that he was waiving his right to trial
by entering the plea. Id. at 9-12.
The Commonwealth then gave a summary of the underlying facts of
Ford’s guilty plea. After describing Ford’s sexual assault of his daughter, the
trial court interrupted.
THE COURT: We can stop right there. You’d be much better off
taking the DA’s offer. I mean, 15 to 30 is really a gift, considering
the facts of this case.
[DA]: Your Honor, that offer’s off the table.
THE COURT: No, he can still plead guilty to that.
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[DA]: No, Your Honor, that was rejected over two years ago. The
Commonwealth has done preparation on the case, and that offer
is gone.
THE COURT: So if he pled guilty today, what would the offer be?
[DA]: There is no offer, he’s pleading open.
THE COURT: So the offer disappears and -- well, maybe you
should think about going to trial, because, if you plead open, I'm
going to give you -- I mean, I still have to listen to what both sides
have to present.
[DA]: I haven’t finished the facts yet.
THE COURT: It doesn’t matter. That age, what he did to her, and
he’s admitting that he did it, you really have to go to prison for a
very long time. So do we have a trial date?
Id. at 14-15.
However, when the trial court continued to explore whether Ford would
be better off going to trial than pleading guilty, plea counsel clarified that they
did not want to pursue a trial.
[PLEA COUNSEL]: Your Honor, my client still wants to plea open.
He doesn’t believe he would be able to win a trial. And I think it
would be a much higher sentence at that point.
THE COURT: All right. As long as he understands, I don't want
you to come in for sentencing and say you’re surprised. Like I
said, I’ll still keep an open mind. Your lawyer can present
whatever he wants. You can make whatever argument you want
to make, but 15 to 30 is not a bad number for what you’re pleading
to.
Id. at 16-17. After this exchange, the Commonwealth finished its summary
of the underlying facts. Ford admitted that he committed all of the acts
described, following which the trial court went through each offense with Ford
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and confirmed with him all of the offenses to which he wanted to plead guilty.
Id. at 27-32.
Additionally, in his written colloquies for both cases, Ford acknowledged
that he had not been promised anything or forced to plead guilty, and that he
was entering an open guilty plea with no agreement as to sentencing. Guilty
Plea Colloquy, 10/8/15, at 2-3. The written colloquy contains no indication
that Ford was pleading guilty under the expectation that he would receive a
sentence of no more than 4 to 8 years’ imprisonment.
Against this record, Ford argues that his averments in his written and
oral colloquies were not true, and that his guilty plea was involuntary because
plea counsel promised him a sentence that was not reflected in the colloquy.
As noted above, however, Ford is bound by the statements he made during
his guilty plea colloquy and cannot now argue that his statements under oath
were false. See McCauley, supra (“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.”).
Likewise, even if plea counsel misled Ford about what sentence he would
receive, the trial court dispelled any misapprehension he may have had about
what he could expect at sentencing. Significantly, upon hearing the facts of
the case, the trial court stopped the guilty plea to ensure that Ford still wanted
to plead guilty instead of going to trial. N.T., 10/8/15, at 14-16. Under these
circumstances, even if Ford had been told to expect a sentence of 4 to 8 years’
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imprisonment, the trial court made it clear that it considered 15 to 30 years’
imprisonment generous in light of the fact that Ford was admitting to raping
his 13-year-old daughter. Despite this, Ford never spoke up or told the trial
court that he was pleading guilty only because he was expecting a much more
lenient sentence than that offered in the plea agreement.
As shown by the record, Ford was well aware that not only was there
was no promise as to what he would receive at sentencing, but also that he
should expect a sentence equal to or greater than the 15 to 30 years’
imprisonment offered two years earlier. Even though the trial court made this
clear on the record, Ford still chose to enter the open plea. As noted above,
the law does not require that a criminal defendant be completely satisfied with
the outcome of his decision to plead guilty; the law requires only that the plea
be voluntary, knowing and intelligent. See Anderson, supra.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/28/20
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