J-S41015-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DAVID ARLINGTON ZILLHART,
Appellant No. 1905 MDA 2016
Appeal from the Order Entered October 25, 2016
in the Court of Common Pleas of Lebanon County
Criminal Division at No.: CP-38-CR-0001834-2014
BEFORE: GANTMAN, P.J., LAZARUS, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED AUGUST 03, 2017
Appellant, David Arlington Zillhart, appeals from the order of October
25, 2016, that denied, following a hearing, his first petition brought under
the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. On
appeal, Appellant claims he received ineffective assistance of plea counsel.
For the reasons discussed below, we affirm the denial of the PCRA petition.
We take the underlying facts and procedural history in this matter
from our review of the certified record. On January 20, 2015, Appellant
entered a negotiated guilty plea to two counts of involuntary deviate sexual
intercourse, one count of statutory sexual assault, one count of sexual
assault, eight counts of aggravated indecent assault, twelve counts of
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*
Retired Senior Judge assigned to the Superior Court.
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indecent assault, and two counts of corruption of minors. The charges arose
out of Appellant’s sexual abuse of two of his granddaughters over an
approximately twelve-year period between August 1999 and April 2012.1
There was an approximately four-month period between entry of
Appellant’s plea and sentencing because of the need for a sexually violent
predator (SVP) inquiry and an assessment by the Sexual Offenders’
Assessment Board (SOAB). On May 26, 2015, following receipt of a pre-
sentence investigation report and a SOAB report, the trial court found
Appellant to be a SVP and sentenced him in accordance with the terms of
the negotiated guilty plea to a term of incarceration of not less than ten nor
more than forty years. Appellant did not seek to withdraw his guilty plea,
did not file a post-sentence motion, and did not file a direct appeal.
On January 28, 2016, Appellant, acting pro se, filed the instant, timely
PCRA petition alleging ineffective assistance of plea counsel. That same day,
the PCRA court appointed counsel, who filed an amended PCRA petition on
August 18, 2016. A PCRA hearing took place on October 25, 2016. At the
hearing, Appellant raised, for the first time, a claim that plea counsel was
ineffective for failing to file a suppression motion. The PCRA court denied
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1
A third granddaughter also disclosed that Appellant had sexually abused
her during the same period. However, because the victim did not want to
proceed and because Appellant elected to enter a guilty plea, the
Commonwealth did not file charges with respect to her allegations. (See
N.T. Sentencing, 5/26/15, at 6-8).
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Appellant’s PCRA petition from the bench, following the hearing. The
instant, timely appeal followed. Appellant filed a timely concise statement of
errors complained of on appeal on December 2, 2016. See Pa.R.A.P.
1925(b). On January 20, 2017, the PCRA court filed an opinion. See
Pa.R.A.P. 1925(a).
On appeal, Appellant raises the following questions for our review:
1. Whether [p]lea [c]ounsel was ineffective for failing to partake
in any [p]re-[t]rial [i]nvestigation, where Appellant informed
[p]lea [c]ounsel that he could not be guilty of the crimes for
which he was charged as he was not present during the dates
and times of the alleged incidents, thereby causing Appellant
to enter a guilty plea where [p]lea [c]ounsel failed to [use]
Appellant’s alibi to aid in his defense?
2. Whether Appellant was unlawfully induced into entering a
guilty plea when [p]lea [c]ounsel failed to engage in any
[p]re-[t]rial investigation so as to show Appellant’s innocence,
where [p]lea [c]ounsel opted to rely solely upon the
Commonwealth’s [i]nformation and failed to file a [m]otion to
[s]uppress Appellant’s statement?
(Appellant’s Brief, at 4).
Our standard of review for an order denying PCRA relief is well settled:
This Court’s standard of review regarding a PCRA court’s
order is whether the determination of the PCRA court is
supported by the evidence of record and is free of legal error.
Great deference is granted to the findings of the PCRA court, and
these findings will not be disturbed unless they have no support
in the certified record.
Commonwealth v. Carter, 21 A.3d 680, 682 (Pa. Super. 2011), appeal
denied, 72 A.3d 600 (Pa. 2013) (citations and quotation marks omitted).
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In the instant matter, Appellant claims that he received ineffective
assistance of plea counsel.2 (See Appellant’s Brief, at 8-18). “A criminal
defendant has the right to effective counsel during a plea process as well as
during trial.” Commonwealth v. Rathfon, 899 A.2d 365, 369 (Pa. Super.
2006) (citation omitted). Further, “[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.” Commonwealth v. Hickman, 799 A.2d 136, 141 (Pa.
Super. 2002) (citation omitted). Also, “[w]here the defendant enters his
plea on the advice of counsel, the voluntariness of the plea depends upon
whether counsel’s advice was within the range of competence demanded of
attorneys in criminal cases.” Id. (internal quotation marks and citations
omitted).
We presume that counsel is effective, and Appellant bears the burden
to prove otherwise. See Commonwealth v. Bennett, 57 A.3d 1185, 1195
(Pa. 2012). The test for ineffective assistance of counsel is the same under
both the Federal and Pennsylvania Constitutions. See Strickland v.
Washington, 466 U.S. 668, 687-88 (1984); Commonwealth v. Jones,
815 A.2d 598, 611 (Pa. 2002). Appellant must demonstrate that: (1) his
underlying claim is of arguable merit; (2) the particular course of conduct
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2
While Appellant discusses his allegations as two distinct claims, they are
intertwined and, therefore, we will treat them together.
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pursued by counsel did not have some reasonable basis designed to
effectuate his interests; and (3) but for counsel’s ineffectiveness, there is a
reasonable probability that the outcome of the proceedings would have been
different. See Commonwealth v. Pierce, 786 A.2d 203, 213 (Pa. 2001),
abrogated on other grounds, Commonwealth v. Grant, 813 A.2d 726 (Pa.
2002). A failure to satisfy any prong of the test for ineffectiveness will
require rejection of the claim. See Jones, supra at 611. Where, as here,
Appellant pleaded guilty, in order to satisfy the prejudice requirement, he
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.” Rathfon, supra at 370 (citation omitted). Appellant has utterly
failed to do so.
Appellant first claims that plea counsel failed to investigate a proposed
alibi defense. (See Appellant’s Brief at 8-16). However, Appellant’s
argument on this issue is lacking in merit. In his brief, after quoting several
pages of testimony from the PCRA hearing, Appellant perfunctorily states
that he could not be guilty of the crimes charged because he had an alibi.
(See id. at 8-15). Appellant then baldly states that plea counsel’s failure to
investigate this defense caused him to plead guilty rather than using the
alibi defense to aid him at trial. (See id. at 15). Appellant next avers,
without explanation, that this demonstrates prejudice.
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Initially, we note that Appellant’s arguments here in support of this
issue are not consistent with his testimony and argument at the PCRA
hearing. At no point that we can ascertain has Appellant ever alleged that
he had an alibi for the entire period of abuse, making him actually innocent
of the charged crimes. (See N.T. PCRA hearing, 10/25/16, at 26-28).
Rather, he claims that he was not residing at the address mentioned in the
affidavit of probable cause during the initial periods of abuse between 1999
and January of 2002, and that between September of 2009 and June of
2011, the victims had moved out-of-state.3 (See id. at 5-6, 27-28).
Further, below, Appellant never claimed actual innocence, instead he
admitted at multiple points throughout the PCRA hearing that he did sexually
abuse his granddaughters. (See id. at 17, 19, 26-28). Moreover, Appellant
has never stated that he wished to go to trial; rather, he specifically testified
at the PCRA hearing that he believed that he would have no chance of
success at trial and was merely asking the court for “leniency.” (Id. at 20).
In addition, when pressed by the Commonwealth as to how the failure to
investigate the “alibi” defense affected him, he was unable to articulate any
specific impact. (See id. at 28-29). While PCRA counsel did argue that
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3
The affidavit of probable cause does clearly state that the abuse stopped
when the family moved out-of-state but resumed when the family returned
and moved in with Appellant. (See Affidavit of Probable Cause, 10/06/14, at
1).
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counsel’s failure to investigate his alibi defense prejudiced Appellant, she did
not claim that it caused Appellant to plead guilty but vaguely stated, that
pursuing it might have put the defense in a position to negotiate a more
favorable sentence. (See id. at 35).4
Accordingly, we find that Appellant has failed to set forth the
ineffectiveness analysis required by Strickland. See Strickland, supra at
687. Because Appellant has not established any of the three prongs, we
must deem counsel’s assistance constitutionally effective. See
Commonwealth v. Rolan, 964 A.2d 398, 406 (Pa. Super. 2008) (holding
that where appellant fails to prove any one of three prongs of ineffectiveness
test, he does not meet his burden of proving ineffective assistance of
counsel, and counsel is deemed constitutionally effective). Thus, there is no
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4
Moreover, at the PCRA hearing, plea counsel specifically testified that
Appellant never told him that he believed he had an alibi for the crimes but
instead admitted his guilt and gave a detailed recitation of the abuse of his
granddaughters. (See N.T. PCRA Hearing, 10/25/16, at 37-38). Counsel
also testified that this was not the type of case that lent itself to an alibi
defense; that he doubted “very strongly” that filing a partial alibi notice
would have induced the Commonwealth to make a more favorable plea
offer. (Id. at 44). In its bench ruling denying PCRA relief, the court
specifically credited defense counsel’s testimony that Appellant never raised
the possibility of an alibi defense. (See id. at 50). We accord great
deference to a PCRA court’s credibility findings. See Commonwealth v.
Dennis, 17 A.3d 297, 305 (Pa. 2011). Further, where, as here, the record
supports them; such determinations are binding on a reviewing court. See
id.
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basis to upset the PCRA court’s finding that Appellant was not entitled to
PCRA relief on this issue.
Appellant next argues that plea counsel was ineffective for failing to
investigate his innocence5 by filing a motion to suppress his statement to the
police, which resulted in him entering an unlawful guilty plea. (See
Appellant’s Brief, at 16-18). However, Appellant’s argument is undeveloped.
Appellant fails to cite to any pertinent case law other than boilerplate law on
ineffective assistance of counsel, and merely quotes portions of his
testimony at the PCRA hearing and then states, without explanation that this
shows that his claim has arguable merit. (See id. at 17-18). He concludes
that, but for counsel’s failure to file a suppression motion, he would not have
pleaded guilty.6 However, Appellant never discusses any law on duress or
coercion, and never explains the legal basis for his claim that he had a
meritorious suppression issue. (See id.).
“Claims of ineffective assistance of counsel are not self-proving[.]”
Commonwealth v. Spotz, 896 A.2d 1191, 1250 (Pa. 2006) (citation
omitted). Our Supreme Court has repeatedly refused to consider bald
allegations of ineffectiveness, such as this one. See Commonwealth v.
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5
As discussed above, any claim of actual innocence in Appellant’s brief is
belied by his repeated iterations of guilt throughout the PCRA hearing.
6
Again, we note that the record from the PCRA hearing simply does not
support the contention made on appeal that Appellant wished to go to trial in
this matter.
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Thomas, 744 A.2d 713, 716 (Pa. 2000) (declining to find counsel ineffective
“where appellant fail[ed] to allege with specificity sufficient facts in support
of his claim.”). Thus, because Appellant has failed to argue his claim with
sufficient specificity, we find it waived. Therefore, there is no basis to upset
the PCRA court’s finding that Appellant was not entitled to PCRA relief on this
issue.
In any event, we have held that where the record clearly shows that
the court conducted a thorough guilty plea colloquy and that the defendant
understood his rights and the nature of the charges against him, the plea is
voluntary. See Commonwealth v. McCauley, 797 A.2d 920, 922 (Pa.
Super. 2001). In examining whether the defendant understood the nature
and consequences of his plea, we look to the totality of the circumstances.
See id. At a minimum, the trial court must inquire into the following six
areas:
(1) Does the defendant understand the nature of the charges
to which he is pleading guilty?
(2) Is there a factual basis for the plea?
(3) Does the defendant understand that he has a right to trial
by jury?
(4) Does the defendant understand that he is presumed
innocent until he is found guilty?
(5) Is the defendant aware of the permissible ranges of
sentences and/or fines for the offenses charged?
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(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?
Id. (citation omitted); see also Pa.R.Crim.P. 590, Comment.
Defense counsel or the attorney for the Commonwealth, as permitted
by the court, may conduct this examination. See Pa.R.Crim.P. 590,
Comment. Moreover, the examination may consist of both a written
colloquy that the defendant read, completed, and signed, and made a part of
the record; and an on-the-record oral examination. See id.
Here, Appellant signed a written plea colloquy and engaged in an oral
colloquy with the trial court. (See Written Guilty Plea, 1/20/15, at
unnumbered page 8; N.T. Guilty Plea Hearing, 1/20/15, at 2-4). At the
guilty plea hearing, Appellant testified that he understood the charges
against him, was pleading guilty because he had committed the crimes
charged, had signed the written guilty plea colloquy, and understood the
written colloquy. (See N.T. Guilty Plea Hearing, at 2-3). Appellant agreed
that he had no questions for his counsel, the Commonwealth, or the trial
court; was satisfied with counsel’s representation; and wanted to plead
guilty. (See id. at 4).
In the written plea colloquy, Appellant agreed that he was guilty of the
charged crimes; he understood the maximum sentence he could receive and
that the sentences could run consecutively; he was pleading guilty of his
own free will; and he was satisfied with counsel’s representation. (See
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Written Guilty Plea, supra at 3-5). Appellant did not make any complaints
or voice any dissatisfaction with counsel’s representation during the plea
colloquy. (See N.T. Guilty Plea, at 2-4).7
The statements made during a plea colloquy bind a criminal defendant.
See Commonwealth v. Muhammad, 794 A.2d 378, 384 (Pa. Super.
2002). Thus, a defendant cannot assert grounds for withdrawing the plea
that contradict statements made at that time. See Commonwealth v.
Stork, 737 A.2d 789, 790-91 (Pa. Super. 1999), appeal denied, 764 A.2d
1068 (Pa. 2000). Further, “[t]he law does not require that appellant be
pleased with the outcome of his decision to enter a plea of guilty: ‘All that is
required is that [appellant’s] decision to plead guilty be knowingly,
voluntarily and intelligently made.’” Commonwealth v. Yager, 685 A.2d
1000, 1004 (Pa. Super. 1996) (en banc), appeal denied, 701 A.2d 577 (Pa.
1997) (citation omitted). Here, Appellant has not shown that his decision to
enter the guilty plea was involuntary. He has therefore failed to prove
prejudice. Thus, his claim of ineffective assistance of plea counsel lacks
merit.
Accordingly, we affirm the denial of Appellant’s PCRA petition.
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7
We note that during the four-month interval between the guilty plea and
sentencing Appellant did not seek to withdraw his guilty plea or make any
complaints regarding counsel’s stewardship. Further, Appellant did not raise
the issue at sentencing, instead again admitting his guilt. (See N.T.
Sentencing, 5/26/15, at 9; 2-28). Appellant did not file a post-sentence
motion or a direct appeal.
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Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/3/2017
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Com. v. Zillhart, D.
Combined Opinion