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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JUSTIN MICHAEL HICKOX,
Appellant No. 1882 MDA 2016
Appeal from the PCRA Order November 1, 2016
In the Court of Common Pleas of Centre County
Criminal Division at No(s): CP-14-CR-0001270-2010
BEFORE: SHOGAN, RANSOM, and MUSMANNO, JJ.
MEMORANDUM BY SHOGAN, J.: FILED JULY 18, 2017
Appellant, Justin Michael Hickox, appeals pro se from the order
denying his petition for collateral relief filed pursuant to the Post Conviction
Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546. We affirm.
Appellant was charged with nine counts of indecent assault and one
count of corruption of minors.1 On March 2, 2011, Appellant entered a guilty
plea to four counts of indecent assault and was sentenced on June 28, 2012.
On direct appeal, this Court vacated Appellant’s judgment of sentence and
remanded the matter. Commonwealth v. Hickox, 91 A.3d 1291, 1357
MDA 2012 (Pa. Super. filed November 20, 2013) (unpublished
memorandum).
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1
18 Pa.C.S. §§ 3126(a)(7) and 6301(a)(1), respectively.
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On June 2, 2014, Appellant entered a guilty plea to the nine counts of
indecent assault and one count of corruption of minors. N.T., 6/2/14, at 2-
21. Appellant was sentenced on the same day to payment of costs, time
served and an aggregate term of fifteen years of probation. Id. at 8-13;
Written Guilty Plea Colloquy, 6/23/14 at 2.
Appellant filed a PCRA petition on December 17, 2014. Counsel was
appointed, but was later permitted to withdraw due to Appellant’s desire to
proceed pro se.2
By order entered July 27, 2015, Appellant was granted leave to file an
amended PCRA petition, and Appellant did so on the same day. The PCRA
court addressed Appellant’s PCRA petition filed December 17, 2014, and
Appellant’s first amended PCRA petition filed July 27, 2015, together and
issued its notice of intent to dismiss both on September 24, 2015. Appellant
filed a response. Both petitions were dismissed by order entered October 8,
2015.
Appellant timely appealed, and on June 9, 2016, this Court vacated
that order and remanded the matter due to the trial court’s failure to
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2
We note that in July of 2015, Appellant violated his probation and was
resentenced on July 17, 2015, to a prison term of five to ten years. The trial
court subsequently issued an amended order dated July 24, 2015, correcting
the sentence imposed on July 17, 2015, as to Count 2.
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conduct a Grazier3 hearing. Commonwealth v. Hickox, 153 A.3d 1104,
1897 MDA 2015 (Pa. Super. filed June 9, 2016) (unpublished
memorandum).4
On remand, the trial court conducted a Grazier hearing on June 21,
2016, granting Appellant’s request to proceed pro se and giving him sixty
days to amend his PCRA petition. Order, 7/5/16. Appellant filed his second
amended PCRA petition on that same day, June 21, 2016.
By order entered November 1, 2016, Appellant’s second amended
petition was dismissed. Appellant filed a timely appeal on November 14,
2016. Appellant and the trial court complied with Pa.R.A.P. 1925.
Appellant presents the following issues for our review:
1. Was appointed trial counsel ineffective during the guilty
plea process?
2. Was appointed trial counsel ineffective for failing to
prepare for trial?
Appellant’s Brief at 5.
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3
Commonwealth v. Grazier, 713 A.2d 81, 82 (Pa. 1998) (“When a waiver
of the right to counsel is sought at the post-conviction and appellate stages,
an on-the-record determination should be made that the waiver is a
knowing, intelligent, and voluntary one.”).
4
We note that Appellant filed a motion for sentence modification on January
22, 2016, and by order entered January 27, 2016, the trial court denied that
motion. Appellant timely appealed that determination, but the appeal at 223
MDA 2016 was discontinued on March 10, 2016.
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Our standard of review of an order denying PCRA relief is whether the
record supports the PCRA court’s determination and whether the PCRA
court’s determination is free of legal error. Commonwealth v. Phillips, 31
A.3d 317, 319 (Pa. Super. 2011) (citing Commonwealth v. Berry, 877
A.2d 479, 482 (Pa. Super. 2005)). The PCRA court’s findings will not be
disturbed unless there is no support for the findings in the certified record.
Id. (citing Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super.
2001)).
Appellant’s issues allege ineffective assistance of trial counsel (“IAC”).
When considering an allegation of IAC, counsel is presumed to have
provided effective representation unless the PCRA petitioner pleads and
proves that: (1) the underlying claim is of arguable merit; (2) counsel had
no reasonable basis for his or her conduct; and (3) appellant was prejudiced
by counsel’s action or omission. Commonwealth v. Spotz, 84 A.3d 294,
311 (Pa. 2014). “In order to meet the prejudice prong of the ineffectiveness
standard, a defendant must show that there is a ‘reasonable probability that
but for counsel’s unprofessional errors, the result of the proceeding would
have been different.’” Commonwealth v. Reed, 42 A.3d 314, 319 (Pa.
Super. 2012). A claim of ineffective assistance of counsel will fail if the
petitioner does not meet any one of the three prongs. Commonwealth v.
Simpson, 66 A.3d 253, 260 (Pa. 2013). “The burden of proving
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ineffectiveness rests with Appellant.” Commonwealth v. Rega, 933 A.2d
997, 1018 (Pa. 2007).
In his first issue, Appellant argues that trial counsel was ineffective
during the guilty plea process. Appellant’s Brief at 10. Appellant asserts
that on the day of jury selection, trial counsel, without the consent of
Appellant, approached the Commonwealth regarding a plea offer. Id. at 11.
Appellant maintains that he rejected the plea offer and told counsel that
under no circumstances was counsel permitted to discuss or accept any offer
from the Commonwealth. Id. Appellant contends that in the following
hours, counsel attempted to convince Appellant to take the plea in order to
avoid any risk of additional prison time. Id. Appellant also asserts that trial
counsel did not discuss trial strategy with him, and that Appellant discovered
on the day of jury selection that counsel was “wholly unprepared to proceed
to trial.” Id. As a result, Appellant argues that “based on the circumstances
surrounding the actions and inactions of trial counsel, the Appellant would
never have entered into a guilty plea and would have proceeded to trial as
was his intention all along.” Id. at 12. Appellant contends that the
ineffectiveness of trial counsel induced a guilty plea when Appellant is
actually innocent. Id. at 12.
“Claims of counsel’s ineffectiveness in connection with a guilty plea will
provide a basis for relief only if the ineffectiveness actually caused an
involuntary or unknowing plea.” Commonwealth v. Brown, 48 A.3d 1275,
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1278 (Pa. Super. 2012). “A defendant is bound by the statements made
during the plea colloquy, and a defendant may not later offer reasons for
withdrawing the plea that contradict statements made when he pled.” Id. at
1277. The law does not require that an appellant be pleased with the results
of the decision to enter a guilty plea; rather “[a]ll that is required is that
appellant’s decision to plead guilty be knowingly, voluntarily and intelligently
made.” Commonwealth v. Moser, 921 A.2d 526, 528–529 (Pa. Super.
2007).
In order to ensure a voluntary, knowing, and intelligent plea, trial
courts are required to ask the following questions in the guilty plea colloquy:
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?
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 range 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?
7) Does the defendant understand that the Commonwealth
has a right to have a jury decide the degree of guilt if defendant
pleads guilty to murder generally?
Pa.R.Crim.P. 590, cmt.; Commonwealth v. Pollard, 832 A.2d 517, 522–
523 (Pa. Super. 2003).
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This Court has explained:
In order for a guilty plea to be constitutionally valid, the guilty
plea colloquy must affirmatively show that the defendant
understood what the plea connoted and its consequences. This
determination is to be made by examining the totality of the
circumstances surrounding the entry of the plea. Thus, even
though there is an omission or defect in the guilty plea colloquy,
a plea of guilty will not be deemed invalid if the circumstances
surrounding the entry of the plea disclose that the defendant had
a full understanding of the nature and consequences of his plea
and that he knowingly and voluntarily decided to enter the plea.
Commonwealth v. Yeomans, 24 A.3d 1044, 1047 (Pa. Super. 2011).
Additionally, a written plea colloquy that is read, completed, and
signed by the defendant and made part of the record may serve as the
defendant’s plea colloquy when supplemented by an oral, on-the-record
examination. Commonwealth v. Morrison, 878 A.2d 102, 108-109 (Pa.
Super. 2005) (citing Pa.R.Crim.P. 590, cmt.). “Our law presumes that a
defendant who enters a guilty plea was aware of what he was doing. He
bears the burden of proving otherwise.” Pollard, 832 A.2d at 523 (internal
citation omitted).
Here, the trial court conducted an oral, on-the-record colloquy which
complied with the requirements set forth in Pa.R.Crim.P. 590. At the
hearing Appellant testified that he was voluntarily entering his plea, N.T.,
6/2/14, at 6, and that he was satisfied with this lawyer’s representation. Id.
at 7. Moreover, Appellant completed and signed a written guilty plea
colloquy that has been made part of the record. Written Guilty Plea
Colloquy, 6/23/14, at 1-5. In the written guilty plea colloquy, the plea
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agreement was set forth and specifically initialed by Appellant. Id. at 2.
The written guilty plea also indicates that Appellant voluntarily entered his
plea and that he was satisfied with his attorney’s representation. Id. at 5.
Appellant is bound by the statements made in his oral and written plea
colloquies, and he may not now offer contradictory reasons for asserting that
his plea was not voluntary. Brown, 48 A.3d at 1277. Appellant may not be
pleased with the results of entering a guilty plea, but he cannot now obtain
relief by claiming he felt pressured by counsel to plead guilty. Moser, 921
A.2d at 528-529. The evidence supports the conclusion that Appellant
voluntarily, knowingly, and intelligently entered his guilty plea, and
Appellant has failed to bear the burden of proving otherwise. Because the
underlying issue lacks merit, Appellant cannot succeed on his claim of
ineffective assistance of counsel. Spotz, 84 A.3d at 311. Accordingly,
Appellant’s first issue fails.
In his second issue, Appellant argues that trial counsel was ineffective
for failing to prepare for the jury trial and properly defend Appellant.
Appellant’s Brief at 12.5 Appellant contends that counsel failed to issue a
subpoena for crucial documents and witnesses that would exonerate him.
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5
We note that Appellant’s brief fails to comply with Pa.R.A.P. 2119, which
requires the argument to be divided into as many parts as there are
questions to be argued and shall have as a heading, the particular point
treated therein. Because this discrepancy does not substantially handicap
our review, we do not find waiver on this basis.
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Id. Appellant further asserts that because the Commonwealth’s plea offer
was only good for the day scheduled for trial, Appellant had “no choice” but
to enter an involuntary plea. Id. at 17-18.
We agree with the Commonwealth’s assertion that Appellant has
waived this claim because he failed to include supporting facts in his PCRA
petition pursuant to Pa.R.Crim.P. 902. Pa.R.Crim.P. 902(A)(12)(a) provides
that the PCRA petition shall include the facts supporting each ground for
relief that “appear in the record, and the place in the record where they
appear.” Additionally, Pa.R.Crim.P. 902(A)(12)(b) requires that the PCRA
petition contain the facts supporting each ground of relief that “do not
appear in the record, and an identification of any affidavits, documents, and
other evidence showing such facts.” Although Appellant claims in his second
amended PCRA petition that trial counsel failed to prepare for trial by failing
to interview witnesses or issuing subpoenas for various exculpatory
documents, Appellant failed to identify the witnesses and the alleged
documents to which he refers in his petition. Second-Amended Petition for
Post-Conviction Collateral Relief, 6/21/16, at 4. Appellant provided this
information for the first time in his appellate brief. Appellant’s Brief at 13-
16. “[I]t is long settled that issues not raised in a PCRA or amended PCRA
petition are waived on appeal.” Commonwealth v. Lauro, 819 A.2d 100,
103–104 (Pa. Super. 2003). Accordingly, Appellant’s claim is waived.
Furthermore, to the extent Appellant claims that counsel’s alleged lack of
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trial preparation resulted in an involuntary plea, we conclude this claim fails
for reasons previously discussed.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/18/2017
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