J-S50033-20
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
KEITH ROBERT SMITH, :
:
Appellant : No. 3249 EDA 2019
Appeal from the PCRA Order Entered October 2, 2019
in the Court of Common Pleas of Chester County
Criminal Division at No(s): CP-15-CR-0002332-2016
BEFORE: BENDER, P.J.E., SHOGAN, J. and STRASSBURGER, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED APRIL 20, 2021
Keith Robert Smith (Appellant) appeals from the October 2, 2019
order dismissing his petition filed pursuant to the Post Conviction Relief Act
(PCRA), 42 Pa.C.S. §§ 9541-9546. Upon review, we affirm.
Briefly, on May 2, 2016, Appellant was in the home he shared with his
girlfriend, Wesley Webb, and three minor children.1 On that night, the
children were upstairs while Appellant and Webb were downstairs arguing.
Webb began to audio-record the argument, at which time Appellant shot her
in the chest with a shotgun, killing her. Appellant “reloaded the shotgun,
pointed it towards his own head at an upward angle, and fired it without
having complete control over where the rifle would fire.” Notice of Intent to
1 Appellant was the father of one of the children; Webb was the mother of
the other two.
*Retired Senior Judge assigned to the Superior Court.
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Dismiss, 7/12/2019, at 3 n.1. Appellant shot himself partially in the face,
and “ammunition pellets discharged into the ceiling of the residence.” Id.
The children found Appellant and Webb downstairs and called 911. Webb
was non-responsive. Appellant eventually regained consciousness and
apologized to the children for killing Webb. The audio-recording from Webb’s
phone captured the shooting through the arrival of emergency personnel
into the home. As a result of the foregoing, Appellant was charged with first-
degree murder, third-degree murder, criminal homicide, possessing an
instrument of crime (PIC), and three counts each of endangering the welfare
of children (EWOC) and recklessly endangering another person (REAP).
On January 5, 2018, three days before the scheduled jury trial start
date, Appellant entered a negotiated guilty plea to one count each of third-
degree murder and PIC, and two counts each of EWOC and REAP.2 Although
the plea agreement included a negotiated sentence, the trial court delayed
the imposition of the agreed-upon sentence in order to allow Webb’s family
time to draft victim-impact statements and appear at the sentencing
proceeding. Thus, as part of the negotiated plea agreement, Appellant
agreed not to file a motion to withdraw his plea prior to sentencing. On
February 20, 2018, Appellant was sentenced to the agreed-upon aggregate
term of incarceration of 28 to 56 years, followed by one year of probation,
2 Appellant was represented by Michael P. Quinn, Esq., from pre-trial
through his sentencing proceeding. John J. Flannery, Jr., Esq., entered his
appearance as co-counsel in December 2017.
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and was ordered to pay restitution. Appellant did not file a post-sentence
motion or direct appeal.
On March 19, 2019, Appellant, represented by new counsel, timely
filed the instant PCRA petition. In the petition, Appellant raised the following
claims of ineffective assistance of counsel: (1) Attorney Quinn unlawfully
induced Appellant to plead guilty to the agreed-upon sentence because he
advised that Appellant “would only serve 14 years [of] incarceration” before
Attorney Quinn’s friend, “the Lieutenant Governor[,] would pardon him”; (2)
Attorney Flannery unlawfully induced Appellant to plead guilty by
threatening to withdraw if Appellant did not plead guilty, which would leave
Appellant “stuck” with Attorney Quinn as trial counsel; (3) Attorneys Quinn
and Flannery unlawfully induced Appellant to plead guilty by “failing to
advise [Appellant] of defenses of arguable merit”;3 and (4) Attorneys Quinn
and Flannery “failed to file a motion to withdraw [Appellant’s] guilty plea,
prior to sentencing, despite [Appellant’s] instructions to do so.” PCRA
Petition, 3/19/2019, at ¶ 4(a)-(d).
On July 12, 2019, the PCRA court issued notice of its intent to dismiss
Appellant’s PCRA petition without a hearing pursuant to Pa.R.Crim.P. 907.
On August 26, 2019, Appellant responded by filing an amended petition to
3Appellant does not challenge the PCRA court’s dismissal of this PCRA claim
on appeal.
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include witness verifications he had failed to include in his initial petition.4
On October 2, 2019, the PCRA court dismissed Appellant’s petition.
This timely-filed notice of appeal followed. On November 13, 2019, the
PCRA court ordered Appellant to file of record, and serve upon the PCRA
court, a concise statement pursuant to Pa.R.A.P. 1925(b) within 21 days of
the entry of the order. The order contained a warning that any issue not
timely filed and served pursuant to Pa.R.A.P. 1925(b) “shall be deemed
waived.” PCRA Court Order, 11/13/2019. On November 24, 2019, Appellant
timely filed a concise statement, but failed to serve it on the PCRA court. The
PCRA court “learned of [Appellant’s s]tatement only after being alerted to its
filing by the Clerk of Court’s Office.” PCRA Court Order, 2/21/2020, at 1. In
lieu of a Rule 1925(a) opinion, the PCRA court issued an order asking us to
find all issues waived due to Appellant’s non-compliance with the service
requirements of Rule 1925(b). Alternatively, the PCRA court referred us to
its July 12, 2019 and October 2, 2019 orders for the reasons relied on in
dismissing Appellant’s PCRA petition. See PCRA Court Order, 2/21/2020.
Before we reach the merits of the issue Appellant raises on appeal, we
must first determine whether he has waived it by failing to serve his concise
statement on the PCRA court.
4 Amended petitions may only be filed with leave of court. However, because
the PCRA court stated in its order dismissing Appellant’s petition that it had
reviewed Appellant’s submission, we conclude that the PCRA court implicitly
granted leave to amend. See Commonwealth v. Brown, 141 A.3d 491,
504 n.12 (Pa. Super. 2016) (citations omitted).
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Preliminarily, we observe that Rule 1925 was amended and became
effective shortly before the PCRA court ordered Appellant to file a concise
statement. As amended, Rule 1925(b)(1) requires that, when the PCRA
court orders an appellant to file a concise statement, “the appellant shall file
of record the [s]tatement and concurrently shall serve the judge.” Pa.R.A.P.
1925(b)(1). Within the order, the court “shall specify[, inter alia,] that the
Statement shall be served on the judge pursuant to paragraph (b)(1) and
both the place the appellant can serve the Statement in person and the
address to which the appellant can mail the Statement[,]” and “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)(iii), (iv).
In Commonwealth v. Schofield, 888 A.2d 771 (Pa. 2005), our
Supreme Court reasserted its holding “that failure to comply with the
minimal requirements of Pa.R.A.P. 1925(b) will result in automatic waiver of
the issues raised.” Id. at 774. In so holding, our Supreme Court expressly
required “strict compliance with Pa.R.A.P. 1925(b)” because it guarantees
the lower court’s “ability to focus on the issues raised by the appellant, and
thereby, allows for meaningful and effective appellate review. Moreover, a
bright-line rule eliminates the potential for [] inconsistent results[.]” Id.
Likewise, this Court has held that “strict application of the bright-line rule
[] necessitates strict interpretation of the rules regarding notice of Rule
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1925(b) orders.” Greater Erie Indus. Dev. Corp. v. Presque Isle Downs,
Inc., 88 A.3d 222, 226 (Pa. Super. 2014) (en banc) (quoting
In re L.M., 923 A.2d 505, 509-10 (Pa. Super. 2007)) (emphasis omitted).
Instantly, Appellant received notice of the PCRA court’s order directing
him to file a concise statement, and Appellant filed the concise statement as
ordered. However, he failed to serve the concise statement on the PCRA
court as ordered. This Court addressed the application of the bright-line rule
as it pertains to the service requirements of Rule 1925(b) in
Commonwealth v. Eldred, 207 A.3d 404 (Pa. Super. 2019), concluding as
follows:
Non-compliance with Rule 1925(b)(1), including lack of service,
shall result in automatic waiver of all appellate issues. See
Schofield, 888 A.2d at 774. Rule 1925(c) permits us to remand
an appeal in a criminal case if counsel failed to satisfy the filing
requirements of Rule 1925(b)(1). Here, however, remand would
be inappropriate because there is no procedural mechanism to
correct the defective service of a concise statement. See
Pa.R.A.P. 1925(c) (allowing remand to correct a filing defect
only).
Id. at 407 (citation format altered; emphasis in original).
Here, the PCRA court’s order provided the following, in pertinent part.
[Appellant] is hereby ORDERED to file of record and serve upon
the undersigned, a concise statement (“Statement”) of the
errors complained of on appeal in the above captioned matter.
The Statement must be filed of record. The Statement must be
served upon the undersigned pursuant to Pa.R.A.P. []
1925(b)(1). The Statement must be filed and served no later
than twenty-one (21) days from the date of the entry on the
docket of this Order. Any issue not properly included in the
Statement timely filed and served pursuant to Pa.R.A.P. []
1925(b) shall be deemed waived. Attention is directed to
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Pa.R.A.P. 1925(b)(4) which sets forth requirements for the
Statement.
PCRA Court Order, 11/13/2019.
Thus, the PCRA court’s order expressly required service on the PCRA
court, which Appellant failed to do. Therefore, under Eldred and Schofield,
ordinarily Appellant’s non-compliance would be fatal to his appeal.
Nonetheless, we note that the PCRA court did not comply with amended Rule
1925(b)(3)(iii)’s requirement that the order include “the place the appellant
can serve the Statement in person and the address to which the appellant
can mail the Statement.” Because Eldred applied the prior version of Rule
1925, which did not include this mandate, it did not consider whether failure
to include that specification in the order precludes waiver. Thus, we must
determine whether the PCRA court’s failure to include this specification
precludes a finding of waiver for Appellant’s non-compliance.
In Berg v. Nationwide Mutual Ins. Co., 6 A.3d 1002 (Pa. 2010)
(plurality),
our Supreme Court “consider[ed] whether an appellant’s failure
to personally serve on a trial judge a court-ordered [1925(b)
statement], in accordance with Pa.R.A.P. 1925, results in waiver
of all issues, where the court’s order itself does not comply with
Rule 1925.” Berg, 6 A.3d at 1003.
***
A plurality of our Pennsylvania Supreme Court held that, in
contravention of Rule 1925(b)(3), “the express language of [the
1925(b)] order did not instruct [the a]ppellants to serve a copy
of their 1925(b) Statement on the trial judge; rather, it directed
[them] to file copies ... with the court and with the trial
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judge.” Id. at 1004 n.4, 1008. Accordingly, it concluded, the
appellants substantially complied with the court’s order “by
attempting to provide the prothonotary with two time-stamped
copies of [their] 1925(b) statement, with one to be served on
the trial judge.” Id.
In re Estate of Boyle, 77 A.3d 674, 678 (Pa. Super. 2013) (footnotes
omitted).
Here, Appellant was on notice that he must serve a copy of the concise
statement on the PCRA court or risk waiver. In contrast to Berg, it cannot
be said that Appellant “substantially complied with the court’s order” where
he did not attempt to serve the PCRA court. Id. No published cases have yet
considered whether the failure to include the newly-enacted specifications of
place and address for service precludes a finding of waiver. Nevertheless,
another panel of this Court, in an unpublished memorandum,5 declined to
find waiver when considering a nearly identical concise statement order to
the one herein:
[T]he PCRA court’s December 20, 2019 order failed to specify
both the place and address where [the] appellant could serve his
Rule 1925(b) statement on the PCRA judge in person, as
required by Pa.R.A.P. 1925(b)(3)(iii). As the PCRA court’s Rule
1925(b) order failed to comply with Pa.R.A.P. 1925(b)(3)(iii), we
decline to find waiver. See Commonwealth v. Jones, 193 A.3d
957, 961 (Pa. Super. 2018) (declining to find waiver where Rule
1925(b) order is deficient).
5 See Pa.R.A.P. 126(b) (directing that unpublished, non-precedential
decisions of the Superior Court filed after May 1, 2019, may be cited for
persuasive value).
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Commonwealth v. Chapman, No. 175 & 176 EDA 2020, unpublished
memorandum at *3 (Pa. Super. filed Dec. 23, 2020). In the interest of
consistency, we decline to find waiver.
We now turn to the issue Appellant raises on appeal: “Did the [PCRA]
court err in dismissing [Appellant’s PCRA] petition, without a hearing, where
[Appellant] raised material issues of fact alleging ineffective assistance of
counsel[,]” based on Attorney Quinn’s advice about parole, Attorney
Flannery’s threat to withdraw, and Attorney Quinn’s and Attorney Flannery’s
failures to file a pre-sentence motion to withdraw Appellant’s plea as
requested. Appellant’s Brief at 4 (capitalization altered).
We consider Appellant’s claim, mindful that “[o]ur standard of review
of a [PCRA] court order granting or denying relief under the PCRA calls upon
us to determine whether the determination of the PCRA court is supported
by the evidence of record and is free of legal error.” Commonwealth v.
Pier, 182 A.3d 476, 478 (Pa. Super. 2018) (citation and quotation marks
omitted). “It is well-settled that [t]here is no absolute right to an evidentiary
hearing on a PCRA petition, and if the PCRA court can determine from the
record that no genuine issues of material fact exist, then a hearing is not
necessary.” Commonwealth v. Allison, 235 A.3d 359, 364 (Pa. Super.
2020) (citation and quotation marks omitted).
This Court grants great deference to the findings of the PCRA
court if the record contains any support for those findings. We
give no such deference, however, to the court’s legal
conclusions.
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The law presumes counsel has rendered effective assistance. An
evaluation of counsel’s performance is highly deferential, and the
reasonableness of counsel’s decisions cannot be based upon the
distorting effects of hindsight. When asserting a claim of
ineffective assistance of counsel, Appellant is required to make
the following showing: (1) that the underlying claim is of
arguable merit; (2) counsel had no reasonable strategic basis for
his action or inaction; and, (3) but for the errors and omissions
of counsel, there is a reasonable probability that the outcome of
the proceedings would have been different. The failure to satisfy
any prong of the test for ineffectiveness will cause the claim to
fail.
***
Ineffective assistance of counsel claims arising from the plea-
bargaining process are eligible for PCRA review. 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. Kelley, 136 A.3d 1007, 1012-13 (Pa. Super. 2016)
(citations and quotation marks omitted).
We also observe that a PCRA petitioner will be eligible to withdraw his
plea if he/she establishes that (1) ineffective assistance of counsel caused
the petitioner to enter an involuntary guilty plea; or (2) the guilty plea was
unlawfully induced and the petitioner is innocent. 42 Pa.C.S. §
9543(a)(2)(ii), (iii); Commonwealth v. Kersteter, 877 A.2d 466, 467 (Pa.
Super. 2005). Finally, “[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
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assert grounds for withdrawing the plea which contradict the statements he
made at his plea colloquy.” Pier, 182 A.3d at 480 (citation and quotation
marks omitted).
Appellant’s issue is divided into three arguments, concerning the PCRA
court’s dismissal of three of his PCRA issues. We address the denial of
Appellant’s first two PCRA claims together. Therein, Appellant contends that
Attorney Quinn unlawfully induced him to plead guilty on the grounds that
Appellant would be pardoned after 14 years, and that Attorney Flannery
compelled him to enter his plea by threatening to withdraw if Appellant did
not. In finding these claims to be without arguable merit, the PCRA court
noted that Appellant completed a thorough written and oral plea colloquy.
Additionally, the
record confirms that [Appellant] admitted that he was able to
work with his trial counsel, had sufficient time to discuss the
case with counsel, was satisfied with the representation of
counsel, and that the decision to plead guilty was [Appellant’s]
and not that of counsel. [Appellant] further acknowledged that
no one promised him anything or threatened him in any way to
get him to plead guilty. Based upon [Appellant’s] representation
to the [trial c]ourt, he may not now assert grounds for
withdrawing his guilty plea that contradict his sworn statements
made when he pled guilty.
Notice of Intent to Dismiss, 7/12/2019, at 6 n.1 (citations omitted).
On appeal, Appellant argues that the PCRA court erred in concluding
these claims contradicted statements made at his plea hearing. While
acknowledging that he testified he received no promises in exchange for his
guilty plea, Appellant argues on appeal that he did not interpret Attorney
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Quinn’s purported pardon statement as a promise, but as an explanation of
“the nature of parole[.]” Appellant’s Brief at 12. As to his second claim, while
Appellant acknowledges that he testified he received no threats to force him
to plead guilty, he argues Attorney “Flannery did not technically threaten
[Appellant] to plead guilty, rather he threatened to withdraw and leave
[Appellant] with ineffective counsel[,]” i.e., Attorney Quinn, if he did not
plead guilty. Id. at 15.
We are not persuaded by Appellant’s semantics argument. Appellant
completed, signed, and initialed a thorough written colloquy, which included
the details of the agreed-upon sentence and the minimum and maximum
times he was to serve. The trial court conducted a thorough oral colloquy
before accepting the plea agreement. During Appellant’s plea proceeding,
the trial court clarified on the record that Appellant’s aggregate sentence
would be 28 to 56 years in prison, plus one year of probation. N.T.,
1/5/2018, at 17. The Commonwealth and Attorney Flannery both agreed
with the court’s calculation. Following that pronouncement, Attorney
Flannery assured the court that he believed Appellant was cognizant of what
he was doing and entering the plea of his own free will, and Appellant
affirmed that he did not have anything additional to say. Id. at 17-18.
Appellant relies on Commonwealth v. Hickman, 799 A.2d 136 (Pa.
Super. 2002), in support of his claim that Attorney Quinn provided
ineffective assistance. Appellant’s Brief at 10-12. In Hickman,
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plea counsel gave [Hickman] reason to believe he could be
released from prison in two years and be eligible for parole six
months later, when, in fact, [Hickman] was statutorily ineligible
for release into the boot camp program and could not receive
parole until he had served four years imprisonment. Thus[,]
based on an ignorance of relevant sentencing law, counsel’s
advice was legally unsound and devoid of any reasonable basis
designed to effectuate [Hickman’s] interests.
799 A.2d at 141. Unlike in Hickman, Appellant does not contend that
Attorney Quinn told him that he would be eligible for any early-release
program to which he was statutorily ineligible. Rather, Appellant asserts that
Attorney Quinn told him that the lieutenant governor was Attorney Quinn’s
“good friend and that he would pardon [Appellant] if he pled guilty.” Brief in
Support of PCRA Petition, 3/19/2019, at 4. Despite Appellant’s alleged
unfamiliarity with how sentencing generally works, his plea agreement,
written colloquy, and oral colloquy unambiguously articulated that
Appellant’s sentence was a minimum of 28 years and a maximum of 56
years in prison, followed by one year of probation. He acknowledged his
understanding of that sentence, and testified that he was not promised
anything, such as an early pardon, in exchange for his plea. Because the
underlying claim lacks merit and is belied by the record, the PCRA court’s
determination is supported by the record and it did not err in dismissing this
claim without a hearing.
As to Appellant’s contention that Attorney Flannery rendered
ineffective assistance by threatening to withdraw, Appellant averred in his
PCRA petition that Attorney Flannery “had no reasonable basis to threaten
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[Appellant] with withdrawing, and it only served the purpose of inducing
[Appellant] to plead guilty.” Brief in Support of PCRA Petition, 3/19/2019, at
7. However, the record indicates that Attorney Flannery sought to withdraw
based upon issues with Attorney Quinn, which he subsequently resolved,
and Appellant acknowledged his understanding of that at the plea
proceeding. N.T., 1/5/2018, at 3-4, 16. Specifically, at the beginning of
Appellant’s plea proceeding, Attorney Flannery’s then-pending motion to
withdraw as counsel was discussed as follows:
[ATTORNEY] FLANNERY: I would withdraw that[ motion to
withdraw as counsel], Judge. [Attorney] Quinn and I have been
able to resolve our issue that we have.
And I’ve spoken with my client. I met with him on several
occasions, and he wishes me -- as I explained to him, I would
stay in for negotiation purposes and what have you. He was fine
with that. And he is fine with my being here today. And he is
also fine with [Attorney] Quinn, who is tied up somewhere else,
not being here.
I’ve discussed this with him. I’ve also discussed it with his
family as well. His mother is here present today in court. I’ve
discussed it with both his mother and his father and my client[.]
THE COURT: All right. [Appellant], did you hear what [Attorney]
Flannery said?
[APPELLANT]: Yes.
THE COURT: Is all of that accurate?
[APPELLANT]: Yes.
THE COURT: Do you wish to proceed with [Attorney] Flannery
with this negotiated plea agreement?
[APPELLANT]: Yes.
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N.T., 1/5/2018, at 3-4. Later in the proceeding, Appellant testified that he
was satisfied with the representation of Attorney Quinn and with the
representation of Attorney Flannery, and he did not receive any threats to
force him to plead guilty. Because the underlying claim is without merit, the
PCRA court’s determinations are supported by the record and it did not err in
dismissing this claim.
Finally, we address the PCRA court’s dismissal of Appellant’s PCRA
claim that Attorneys Quinn and Flannery were ineffective for failing to file a
pre-sentence motion to withdraw Appellant’s plea. Preliminarily, the PCRA
court concluded that Appellant had waived his right to withdraw his plea as
part of the negotiated plea agreement. Notice of Intent to Dismiss,
7/12/2019, at 9 n.1. Appellant contends this was error based on
Commonwealth v. Pardo, 35 A.3d 1222 (Pa. Super. 2011). Appellant’s
Brief at 19.
In Pardo, the defendant agreed to plead guilty to various counts
in exchange for other counts being dismissed. Before doing so,
he executed a written provision waiving his right to withdraw his
plea as long as the court accepted the plea agreement. There
was no sentencing agreement. The trial court later denied his
pre-sentence motion to withdraw his plea, citing, inter alia, the
waiver provision. This Court opined on appeal:
The fact that Pardo signed a waiver indicating that he
would not be permitted to withdraw his plea if the court
accepted the plea agreement does not change our decision
[to permit plea withdrawal] today. In fact, we find that
such waiver provision, which prevents a defendant from
the right to withdraw his plea prior to sentencing, flies in
the face of the intent behind Rule 591, our Supreme
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Court’s decision in Commonwealth v. Forbes, 299 A.2d
268 (Pa. 1973)[,] and the line of cases emphasizing the
liberal pre-sentence plea withdrawal standard.
Pardo, 35 A.3d at 1230.
We also stated:
Today we hold that it is an abuse of discretion by the
trial court to find that a defendant has waived his
right to withdraw a guilty plea prior to sentencing
where the defendant enters an open plea with regard
to sentence, asserts his innocence, and there is no
alleged prejudice to the Commonwealth if the plea
were withdrawn. We further hold that the trial court
may not curtail a defendant’s ability to withdraw his
guilty plea via a boilerplate statement of waiver in a
written guilty plea colloquy.
Id. at 1224.
Commonwealth v. Gordy, 73 A.3d 620, 624-25 (Pa. Super. 2013) (citation
format altered).
At Appellant’s plea hearing, which occurred three days before the
scheduled trial date, the following exchange occurred.
THE COURT: [B]ut for rulings on [pre-trial] motions, the
Commonwealth is otherwise ready and able to proceed.
***
Because, [Attorney] Flannery, there are agreed upon
sentences in the negotiated plea colloquy. And if there was not
some consequence to this plea, and what I mean by that is that
if your client does not waive his right to withdraw this plea
before sentencing, that this would really be nothing more than a
self-granted continuance.
[ATTORNEY] FLANNERY: I understand that, Judge. And I think if
you like, I can certainly colloquy him on that. I think I explained
it to him.
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I can tell you this, Your Honor, in speaking with my client[,] he
has no desire [to] withdraw[] his plea. He wants to enter his
plea today for a number of reasons, not the least of which is the
fact that, as the [c]ourt is fully aware, you had scheduled a
hearing on the children testifying and what have you, and he
does not wish them to have to go through any of this. And that
is one of the major impetuses.
Aside from the fact that he acknowledges what occurred,
he does not want to put anyone’s children, his own or [] Webb’s
children, through trial. And that’s the main purpose, one of the
main purposes of our plea today. So[,] I don’t think he is going
to withdraw that, Judge. I think he would be happy to do that.
Did you hear what I said?
[APPELLANT]: Yes. Yes, I’ll waive that.
***
THE COURT: We also discussed that since this matter is
scheduled for trial next Monday, in three days, and we would
rule on the pretrial motions that were scheduled for the 4th on
that date and then immediately thereafter commence with jury
selection and trial thereafter, you understand that the
Commonwealth is ready to proceed on Monday?
[APPELLANT]: Yes.
THE COURT: Is that accurate, [Attorney] Gosfield?[6]
[ATTORNEY] GOSFIELD: That is accurate, your Honor.
THE COURT: And that the proposal to me is that I accept the
guilty pleas but delay the imposition of sentence, so that the
family of the victim can be here for that sentencing and
participate in that sentencing proceeding; do you understand
that?
6 Attorney Gosfield represented the Commonwealth at Appellant’s plea
proceeding.
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[APPELLANT]: Yes.
THE COURT: And there are certain legal criteria for withdrawing
guilty pleas, either after sentencing and/or before sentencing,
and that the only grounds upon which I will accept this -- and I
assume this is what the Commonwealth’s offer is as well, that
they not be able to withdraw this?
[ATTORNEY] GOSFIELD: That is part of the terms as set forth in
[] Count 2, which would be the first count to which he is
pleading.
THE COURT: That if you were allowed to pursue withdrawal,
since the Commonwealth is ready to proceed on Monday for trial,
that this would, in essence, be nothing but a self-granted
continuance of the trial, which I would not otherwise be willing to
grant.
The Commonwealth is ready to proceed. And since victims
have the right to participate, the only basis I would allow
deferment of the imposition of sentence is that if you agree that
you waive your ability to seek withdrawal of this guilty plea prior
to the imposition of sentence.
Do you understand that?
[APPELLANT]: Yes.
THE COURT: I don’t think that the agreement would be that he
forfeits anything post[-]imposition of sentence, only that he not
be allowed to withdraw it prior to sentencing.
[ATTORNEY] GOSFIELD: That’s correct, your Honor.
[ATTORNEY] FLANNERY: I agree, Judge.
THE COURT: Okay.
You heard that stated by [Attorney] Flannery. You already
agreed that was your wish. But I’m asking you specifically now
on the record under oath, was that your understanding and do
we have your agreement to that?
[APPELLANT]: Yeah. Yes.
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THE COURT: Okay.
N.T., 1/5/2018, at 5-6, 11-13.
Unlike in Pardo, Appellant entered a negotiated guilty plea with an
agreed-upon sentence; the sentencing hearing was separated from the plea
proceeding only so Webb’s family could appear; and Appellant did not waive
his right to file a pre-sentence motion to withdraw his plea “via a boilerplate
statement of waiver in a written guilty plea colloquy.” Gordy, 73 A.3d at
625 (citation omitted). Based on the foregoing, we conclude that Pardo
does not control, the trial court was not prohibited from conditioning its
acceptance of the plea on Appellant’s waiving his right to file a pre-sentence
motion to withdraw his negotiated guilty plea, and the PCRA court did not
abuse its discretion in determining that Appellant had waived his right to file
a pre-sentence motion to withdraw his plea. Accordingly, the PCRA court did
not err in concluding that plea counsel was not ineffective for failing to file
such a motion.
Even if Pardo controlled and Appellant had not validly waived his right
to file a pre-sentence motion to withdraw his plea, Appellant is not entitled
to relief. Our Supreme Court clarified the standard of review for considering
a trial court’s decision regarding a defendant’s pre-sentence motion to
withdraw a guilty plea as follows:
To be clear, when a trial court is faced with a pre[-]sentence
motion to withdraw a guilty plea, the court’s discretion is not
unfettered. As this Court has often explained, “[t]he term
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‘discretion’ imports the exercise of judgment, wisdom and skill
so as to reach a dispassionate conclusion, within the framework
of the law, and is not exercised for the purpose of giving effect
to the will of the judge.” Commonwealth v. Widmer, 744 A.2d
745, 753 (Pa. 2000) (citation omitted). Thus, a court’s discretion
in ruling on a pre[-]sentence motion to withdraw a guilty plea
must be informed by the law, which, for example, requires
courts to grant these motions liberally, Commonwealth v.
Carrasquillo, 115 A.3d 1284 (Pa. 2015), and to make credibility
determinations that are supported by the record, see
Commonwealth v. Myers, 722 A.2d 649, 652 (Pa. 1998)
(explaining that, “when appellate review involves the trial court’s
findings of fact and credibility determinations, those findings are
binding on the reviewing court if they find support in the
record”). Moreover, while an appellate court should not
substitute its judgment for that of a trial court that ruled on a
pre[-]sentence motion to withdraw a guilty plea, the appellate
court is tasked with the important role of assessing the propriety
of the trial court’s exercise of its discretion. See Widmer, 744
A.2d at 753 (“The propriety of the exercise of discretion in such
an instance may be assessed by the appellate process when it is
apparent that there was an abuse of that discretion.”).
Commonwealth v. Norton, 201 A.3d 112, 121 (Pa. 2019) (citation format
altered).
[W]hen a defendant files a pre[-]sentence motion to withdraw a
guilty plea based upon a claim of innocence, the “innocence
claim must be at least plausible to demonstrate, in and of itself,
a fair and just reason for presentence withdrawal of a plea.”
Carrasquillo, 115 A.3d at 1292. Stated more broadly, “the
proper inquiry on consideration of such a withdrawal motion is
whether the accused has made some colorable demonstration,
under the circumstances, such that permitting withdrawal of the
plea would promote fairness and justice.” Id. While the
Carrasquillo Court acknowledged that the “policy of liberality
remains extant,” the Court explained that this policy “has its
limits, consistent with the affordance of a degree of discretion to
the common pleas courts.” Id.
Thus, the Carrasquillo Court clearly established that trial courts
have the discretion to assess the plausibility of claims of
innocence. Consistent with the well-established standards
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governing trial court discretion, it is important that appellate
courts honor trial courts’ discretion in these matters, as trial
courts are in the unique position to assess the credibility of
claims of innocence and measure, under the circumstances,
whether defendants have made sincere and colorable claims that
permitting withdrawal of their pleas would promote fairness and
justice.
Id. at 120-21 (some citations omitted).
On appeal, Appellant argues that Attorneys Quinn and Flannery failed
to file a motion to withdraw his plea as requested, and the Commonwealth
offered no reason it would be substantially prejudiced by the granting of a
withdrawal of his plea prior to sentencing. See Appellant’s Brief at 16-18.
The PCRA court determined, however, that even if the waiver could not be
enforced, a withdrawal would have resulted in substantial prejudice to the
Commonwealth, and the sentencing would have taken place the same day,
but for Webb’s family wanting to address the court. Notice of Intent to
Dismiss, 7/12/2019, at 9 n.1. Therefore, the PCRA court found counsel could
not be ineffective for failing to file a meritless motion where Appellant
offered no “fair and just reason for pre[-]sentence withdrawal of his guilty
plea[,] and has not claimed that he is actually innocent of murder or the
related offenses.” Id. at 9-10 n.1 (citation omitted).
Upon review, the PCRA court’s determinations are supported by the
record and free of legal error. The Commonwealth was ready to proceed to
trial when Appellant decided, three days beforehand, to accept the plea
agreement. The sentencing hearing was bifurcated from the plea proceeding
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only to allow Webb’s family the opportunity to appear and be heard. It was
within the PCRA court’s discretion to determine that, as the trial court, it
would not have accepted Appellant’s pre-sentence motion to withdraw his
plea, had counsel filed it. Therefore, counsel could not be found ineffective
for failing to file a meritless motion. Accordingly, the PCRA court did not err
in dismissing this claim without a hearing.
Order affirmed.
Judge Strassburger did not participate in the consideration or decision of this
case.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/20/2021
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