J-S61022-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF : IN THE SUPERIOR COURT OF
PENNSYLVANIA : PENNSYLVANIA
:
:
v. :
:
:
ISIAH A. ALLEN :
: No. 218 EDA 2017
Appellant
Appeal from the PCRA Order December 15, 2016
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0009990-2014,
CP-51-CR-0011255-2014, CP-51-CR-0011256-2014,
CP-51-CR-0011257-2014, CP-51-CR-0011263-2014,
CP-51-CR-0011264-2014
BEFORE: LAZARUS, RANSOM, and PLATT,* JJ.
MEMORANDUM BY RANSOM, J.: FILED NOVEMBER 13, 2017
Appellant, Isiah A. Allen, appeals from the order entered December 15,
2016, denying his petition for collateral relief filed under the Post Conviction
Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.
Appellant was charged with various offenses arising from the theft of
cellular phones and tablets, which he removed from the displays of various
Verizon and AT&T stores between January 8, 2014, and February 6, 2014.
Notes of Testimony (N.T.), 5/11/2015, at 10-11. On May 11, 2015, Appellant
entered into a non-negotiated guilty plea in six consolidated cases to three
counts each of misdemeanor retail theft and misdemeanor conspiracy in the
first degree, two counts each of felony retail theft in the third degree and
felony conspiracy in the third degree, and one count of misdemeanor
____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S61022-17
possession of an instrument of crime.1
On August 13, 2015, Appellant was sentenced to one and one-half to
five years of incarceration on each of the charges to run concurrently with
each other, with credit for time served and without RRRI eligibility. Appellant
did not file a post-sentence motion or direct appeal from the judgment of
sentence.
On December 11, 2015, Appellant pro se filed a PCRA petition. Counsel
was appointed and filed an amended petition on May 6, 2016, asserting
ineffective assistance of plea counsel. On November 15, 2016, the PCRA court
served Appellant with notice of intent to dismiss pursuant to Pa.R.Crim.P. 907.
Thereafter, the PCRA court denied Appellant’s petition without an evidentiary
hearing. See Order, 12/15/2016.
Appellant timely filed a notice of appeal and court-ordered 1925(b)
statement, asserting two issues: (1) the court erred in denying relief on his
substantive claim and (2) the court erred in failing to holding an evidentiary
hearing. See Appellant’s 1925(b) Statement, 2/13/2017, at 1. The PCRA
court issued a responsive opinion.
On appeal, Appellant pursues only one issue:
1. Did the [l]ower [c]ourt err in failing to hold an evidentiary
hearing to determine substantial issues of material fact alleged
in Appellant’s PCRA petition?
Appellant’s Br. at 9.
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1 18 Pa.C.S. §§ 3929(a)(1), 903, 907(a), respectively.
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Appellant challenges an order denying his petition for collateral relief in
which he asserted ineffective assistance of plea counsel. Generally, the
following standards apply.
We review an order denying a petition under the PCRA to determine
whether the findings of the PCRA court are supported by the evidence of
record and free of legal error. Commonwealth v. Ragan, 923 A.2d 1169,
1170 (Pa. 2007). We afford the court’s findings deference unless there is no
support for them in the certified record. Commonwealth v. Brown, 48 A.3d
1275, 1277 (Pa. Super. 2012) (citing Commonwealth v. Anderson, 995
A.2d 1184, 1189 (Pa. Super. 2010)).
We presume counsel is effective. Commonwealth v. Washington,
927 A.2d 586, 594 (Pa. 2007). To overcome this presumption and establish
the ineffective assistance of counsel, a PCRA petitioner must prove, by a
preponderance of the evidence that: “(1) the underlying legal issue has
arguable merit; (2) counsel’s actions lacked an objective reasonable basis;
and (3) actual prejudice befell the petitioner from counsel’s act or omission.”
Commonwealth v. Johnson, 966 A.2d 523, 533 (Pa. 2009) (citations
omitted). “A petitioner establishes prejudice when he demonstrates ‘that
there is a reasonable probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different.’” Id. (quoting
Strickland v. Washington, 466 U.S. 668, 694 (1984)). A claim will be
denied if the petitioner fails to meet any one of these requirements.
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Commonwealth v. Springer, 961 A.2d 1262, 1267 (Pa. Super. 2008) (citing
Commonwealth v. Natividad, 938 A.2d 310, 322 (Pa. 2007));
Commonwealth v. Jones, 942 A.2d 903, 906 (Pa. Super. 2008).
We review allegations of counsel’s ineffectiveness in connection with a
guilty plea as follows:
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.
Thus, to establish prejudice, the defendant must show that there
is a reasonable probability that, but for counsel’s errors, he would
not have pleaded guilty and would have insisted on going to trial.
The reasonable probability test is not a stringent one; it merely
refers to a probability sufficient to undermine confidence in the
outcome.
Commonwealth v. Barndt, 74 A.3d 185, 192 (Pa. Super. 2013) (citations
and internal quotation marks omitted). In determining whether a plea was
entered knowingly and voluntarily, this Court considers the totality of the
circumstances surrounding the plea. Commonwealth v. Flanagan, 854
A.2d 489, 513 (Pa. 2004).
In the issue he pursues on appeal, Appellant asserts that an evidentiary
hearing is required to determine whether counsel was ineffective. Appellant's
Br. at 13. Appellant avers that he alleged facts in his PCRA petition which, if
true, established that counsel’s advice caused him to enter an unknowing plea.
See Appellant's Br. at 15 (suggesting he could have withdrawn his plea).
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Specifically, according to Appellant, he relied on representations by plea
counsel regarding the credit he would receive for time served, and such
representations turned out to be incorrect. See Appellant's Br. at 13.
Appellant suggests that these allegations raise factual issues regarding
counsel’s effectiveness. Id. at 13. Thus, Appellant requests that this Court
remand for an evidentiary hearing. Id. at 19.
Notably, Appellant concedes that there is no evidence in the record to
establish plea counsel’s ineffectiveness. See Appellant's Br. at 13. Thus,
Appellant has abandoned the substantive claim that he preserved in his
1925(b) statement. Id. at 19. See Pa.R.A.P. 2116 (“No question will be
considered unless it is stated in the statement of questions involved or is fairly
suggested thereby.”). Accordingly, we limit our analysis to Appellant’s request
for remand for a hearing and apply the following standard.
The right to an evidentiary hearing on a post-conviction petition
is not absolute. A PCRA court may decline to hold a hearing if the
petitioner's claim is patently frivolous and is without a trace of
support in either the record or from other evidence. A reviewing
court on appeal must examine each of the issues raised in the
PCRA petition in light of the record in order to determine whether
the PCRA court erred in concluding that there were no genuine
issues of material fact and denying relief without an evidentiary
hearing. The controlling factor in determining whether a petition
may be dismissed without a hearing is the status of the
substantive assertions in the petition.
Commonwealth v. Payne, 794 A.2d 902, 906 (Pa. Super. 2002) (internal
citations omitted). Where factual proffer, even if believed, fails to establish
substantive claim, no evidentiary hearing is required. Commonwealth v.
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Ligons, 971 A.2d 1125, 1146 (Pa. 2009).
Appellant’s allegations are not supported by the record established at
his plea and sentencing hearings. “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 assert grounds for withdrawing the plea which contradict the
statements he made at his plea colloquy.” Commonwealth v. Pollard, 832
A.2d 517, 523 (Pa. Super. 2003); see also Commonwealth v. Muhammad,
794 A.2d 378, 384 (Pa. Super. 2002) (“one is bound by one’s statements
made during a plea colloquy, and may not successfully assert claims that
contradict such statements”).
The PCRA court found that the record of oral and written guilty plea
colloquies demonstrate that Appellant entered his plea voluntarily, knowingly,
and intelligently. See PCRA Ct. Op., 4/5/2017, at 3. At the guilty plea
hearing, Appellant denied that any promises had been made to him. See
Notes of Testimony (N.T.), 5/11/2015, at 9. Appellant was informed of the
potential range of sentences that could be imposed on each count. See id. at
12-14. On each of his written plea colloquies Appellant certified that no
promises were made to him. See PCRA Ct. Op., at 3. Further, “the question
of his time credit was specifically discussed at sentencing by [Appellant’s]
counsel.” Id. at 4. Plea counsel specifically said: “I don’t think he has any
time credit.” Id. (quoting N.T., 8/13/2015, at 11). Plea counsel informed the
court on the record that any credit for time served for Appellant’s Philadelphia
convictions would be limited because he was also serving time in connection
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with convictions in Montgomery and in Delaware County, as described in
Appellant’s Pre-Sentence Investigation Report (PSI). N.T., 8/13/2015, at 11.
Appellant’s sentence specified that credit for time served would be determined
by the Department of Corrections (DOC). Id. at 19; see also Sentencing
Order, 8/13/2015. “At no point did Appellant question those statements or
assert that he had been made specific time credit promises.” PCRA Ct. Op.,
at 4.
Appellant is bound by his statements and they cannot be contradicted.
See Pollard, supra. Based on the evidence from the guilty plea, PSI, and
plea counsel’s statements at sentencing, there exist no genuine substantive
issues of material fact raised by Appellant’s petition. See Pa.R.Crim.P.
907(2); see Ligons, supra. Accordingly, the PCRA court did not err in
dismissing Appellant’s petition without an evidentiary hearing. See Payne,
794 A.2d at 906-907 (affirming PCRA court order dismissal of petition without
a hearing where record revealed no genuine issues of material fact).2
Order affirmed. Jurisdiction relinquished.
Judge Lazarus joins the memorandum.
Judge Platt concurs in the result.
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2 Should Appellant dispute the DOC’s calculation, then he would still have
redress in a proceeding in an original action in the Commonwealth Court
challenging DOC’s computation. “A challenge to DOC's computation or
construction of a sentence is not a cognizable claim under the PCRA. Rather,
if the alleged error is the result of DOC's erroneous computation, then the
appropriate mechanism for redress is an original action in [the
Commonwealth] Court challenging DOC's computation.” Allen v.
Commonwealth, 103 A.3d 365, 373 (Pa. Cmwlth. 2014).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/13/2017
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Com. v. Allen, I.
Combined Opinion