J-S59045-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
IDRIS PHELPS :
:
Appellant : No. 3537 EDA 2016
Appeal from the PCRA Order October 4, 2016
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0013478-2012
BEFORE: BENDER, P.J.E., OTT, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED SEPTEMBER 29, 2017
Appellant, Idris Phelps, appeals pro se from the order entered in the
Philadelphia County Court of Common Pleas denying his first Post Conviction
Relief Act1 (“PCRA”) petition. Appellant contends PCRA counsel was
ineffective for failing to argue that trial counsel was ineffective for coercing
him into taking a guilty plea. We affirm.
The facts are unnecessary for our disposition. The PCRA court
summarized the procedural posture of this case as follows:
On August 31, 2012, [Appellant] was arrested and
charged with murder, attempted murder, aggravated
assault, violations of the Uniform Firearms Act, recklessly
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* Former Justice specially assigned to the Superior Court.
1
42 Pa.C.S. §§ 9541-9546.
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endangering another person and possessing an instrument
of crime. . . . On September 22, 2014, [Appellant]
entered into a negotiated guilty plea to the charges of
murder of the third degree and attempted murder in return
for an aggregate sentence of twenty-five to fifty years’
incarceration. [Appellant] was sentenced in accordance
with the agreement on the same day as the plea and no
motion to withdraw that plea has ever been filed.
Likewise, there was no direct appeal taken.
[Appellant] filed his [PCRA] petition on September 17,
2015. New counsel was appointed who filed a Finley1
letter and motion to withdraw as counsel on August 25,
2016. Errantly, this court failed to serve [Appellant] a
Notice of Intent to Dismiss in accord with Pennsylvania
Rules of Criminal Procedure 907, but nevertheless,
dismissed [Appellant’s] PCRA petition on October 4, 2016.
[Appellant] filed a timely notice of appeal and served a pro
se statement of Matters Complained of on Appeal on the
court on November 16, 2016.
1
Commonwealth v. Finley, [ ] 550 A.2d 213 ([Pa.
Super.] 1998).
PCRA Ct. Op., 12/12/16, at 1-2.
Appellant raises the following issue for our review: “Whether PCRA
counsel was ineffective for failing to argue trial counsel’s ineffectiveness
since trial counsel was ineffective for coercing Appellant [ ] into taking a
guilty plea?” Appellant’s Brief at 4.
As a prefatory matter, we consider whether Appellant has waived the
issue of PCRA counsel’s ineffectiveness for failing to raise it prior to the
instant appeal. In Commonwealth v. Henkel, 90 A.3d 16 (Pa. Super.
2014) (en banc), this Court opined:
[The a]ppellant’s first three issues all involve claims
pertaining to PCRA counsel’s representation. Neither party
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has cited the Pennsylvania Supreme Court’s modern
treatment of this issue in numerous cases.
Commonwealth v. Jette, [ ] 23 A.3d 1032, 1044 n. 14
([Pa.] 2011); Commonwealth v. Hill, 16 A.3d 484, 497
n. 17 ([Pa.] 2011); Commonwealth v. Colavita, [ ] 993
A.2d 874, 893 n. 12 ([Pa.] 2010);[2] Commonwealth v.
Pitts, 981 A.2d 875 ([Pa.] 2009); Commonwealth v.
Ligons, [ ] 971 A.2d 1125 ([Pa.] 2009) (plurality);
Commonwealth v. Potter, [ ] 58 A.3d 752 ([Pa.] 2012)
(per curiam order). Nor have the parties addressed this
Court’s most comprehensive discussion of Pennsylvania
Supreme Court precedent on this matter, Commonwealth
v. Ford, 44 A.3d 1190 (Pa. Super. 2012) (collecting
cases). Those decisions all clarify that claims of
PCRA counsel's ineffectiveness may not be raised for
the first time on appeal.
Id. at 20 (emphasis added). In Ford, this Court opined:
We acknowledge that [the a]ppellant did raise the
ineffectiveness of PCRA counsel issue in his Pa.R.A.P.
1925(b) statement after the Supreme Court remanded the
matter and new counsel was appointed for purposes of
advancing his appeal nunc pro tunc, i.e., at the first
opportunity. Additionally, the PCRA court addressed the
issue in its Pa.R.A.P. 1925(a) opinion. [The a]ppellant’s
question also pertains to matters of record and does not
require this Court to engage in any factual findings. Thus,
several of the concerns expressed for not addressing such
a claim are not present. Nonetheless, a majority of the
Supreme Court agrees that issues of PCRA counsel
effectiveness must be raised in a serial PCRA petition or in
response to a notice of dismissal before the PCRA court.
In addition, the Supreme Court’s remand order in the
instant case allowed for the appointment of counsel, not
for the collateral review process to begin anew. Therefore,
we hold that, absent recognition of a constitutional right to
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2
The Pennsylvania Supreme Court stated: “claims of PCRA counsel
ineffectiveness may not be raised for the first time at the direct appeal level,
much less at the discretionary appeal level.” Id.
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effective collateral review counsel, claims of PCRA counsel
ineffectiveness cannot be raised for the first time after a
notice of appeal has been taken from the underlying PCRA
matter.
Ford, 44 A.3d at 1200-01. Furthermore,
As noted, in Jette, as in [Commonwealth v.] Burkett,
[5 A.3d 1260 (Pa. Super. 2010)], the PCRA court did not
file a notice of intent to dismiss because it held a hearing.
However, the Jette Court did not distinguish Pitts on that
ground and signaled that Colavita was binding precedent
on the issue of whether a claim of PCRA counsel
ineffectiveness could be raised for the first time on appeal.
Consequently, the Supreme Court concluded after the
Burkett decision that a PCRA petitioner cannot assert
claims of PCRA counsel ineffectiveness for the first
time on appeal, regardless of whether a Rule 907[3]
or 909 notice is involved.
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3
Rule 907 provides, in pertinent part, as follows:
Except as provided in Rule 909 for death penalty cases,
(1) the judge shall promptly review the petition, any
answer by the attorney for the Commonwealth, and other
matters of record relating to the defendant’s claim(s). If
the judge is satisfied from this review that there are no
genuine issues concerning any material fact and that the
defendant is not entitled to post-conviction collateral relief,
and no purpose would be served by any further
proceedings, the judge shall give notice to the parties of
the intention to dismiss the petition and shall state in the
notice the reasons for the dismissal. The defendant may
respond to the proposed dismissal within 20 days of the
date of the notice. The judge thereafter shall order the
petition dismissed, grant leave to file an amended petition,
or direct that the proceedings continue.
Pa. R. Crim. P. 907(1).
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Henkel, 90 A.3d at 28 (emphasis added).
In the case sub judice, Appellant asserted claims of PCRA counsel’s
ineffectiveness for the first time on appeal. Therefore, we find the issue
waived. See Henkel, 90 A.3d at 28; Ford, 44 A.3d at 1200-01.
Even assuming, arguendo, that the claim was not waived, Appellant
would not be entitled to relief.4 Appellant avers PCRA counsel was
ineffective for failing to raise trial counsel’s ineffectiveness for coercing him
into pleading guilty. He claims
1. Appellant’s Trial/Plea-hearing counsel gave Appellant no
objective evidence that he was prepared to defend
Appellant at trial; 2. Appellant’s [counsel] advised him that
a death sentence or life in prison was guaranteed to be his
outcome if he did not accept the plea offered; 3. although
Appellant notified the trial Court that every paragraph in
the plea colloquy had been read to him, he did not
understand what was read to him . . .; 4. the recollection
of facts as recounted in Appellant’s Affidavit . . . is
objectively different than the prosecutor’s representation
of fact that was introduced during the Plea colloquy . . . .
Id. at 9-10. Appellant contends that “the facts as represented by the
Prosecutor (i.e., facts introduced during Appellant’s plea colloquy), could not
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4
We note that the certified record transmitted on appeal did not initially
include the notes of testimony from the September 22, 2014, guilty plea
hearing. Upon informal inquiry by this Court, the trial court provided the
transcript. The appellant that he bears the burden of “ensur[ing] the record
certified on appeal is complete in the sense that it contains all of the
materials necessary for the reviewing court to perform its duty.”
Commonwealth v. B.D.G., 959 A.2d 362, 372 (Pa. Super. 2008) (en banc)
(citations omitted).
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be proven beyond a reasonable doubt as they are a factually incorrect
representation pursuant to Appellant’s recollection of his encounter with the
victims.” Id. at 11.
“On appeal from the denial of PCRA relief, our standard and scope of
review is limited to determining whether the PCRA court’s findings are
supported by the record and without legal error.” Commonwealth v. Abu-
Jamal, 941 A.2d 1263, 1267 (Pa. 2008). “Furthermore, we note that we
are bound by the PCRA court’s credibility determinations where there is
record support for those determinations.” Commonwealth v. Santiago,
855 A.2d 682, 694 (Pa. 2004).
With respect to claims of counsel’s ineffectiveness,
[C]ounsel 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.[5] To demonstrate prejudice, an appellant must
prove that a reasonable probability of acquittal existed but
for the action or omission of trial counsel. A claim of
ineffective assistance of counsel will fail if the petitioner
does not meet any of the three prongs. Further, a PCRA
petitioner must exhibit a concerted effort to develop his
ineffectiveness claim and may not rely on boilerplate
allegations of ineffectiveness.
Commonwealth v. Perry, 959 A.2d 932, 936 (Pa. Super. 2008) (citations
and quotation marks omitted).
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5
This three part test was enunciated in Commonwealth v. Pierce, 527
A.2d 973, 975 (Pa. 1987).
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“In determining whether counsel’s action was reasonable, we do not
question whether there were other more logical courses of action which
counsel could have pursued; rather, we must examine whether counsel’s
decisions had any reasonable basis.” Commonwealth v. Washington, 927
A.2d 586, 594 (Pa. 2007). Conversely, to merit relief, counsel’s action,
given all the other available alternatives, must be “so unreasonable that no
competent lawyer would have chosen it.” Commonwealth v. Miller, 431
A.2d 233, 234 (Pa. 1981) (citation omitted). “The burden of proving
ineffectiveness rests with [the a]ppellant.” Commonwealth v. Rega, 933
A.2d 997, 1018 (Pa. 2007).
Appellant presents a layered claim of PCRA counsel’s ineffectiveness.
Layered claims of ineffectiveness “are not wholly distinct
from the underlying claims[,]” because “proof of the
underlying claim is an essential element of the derivative
ineffectiveness claim[.]” “In determining a layered claim
of ineffectiveness, the critical inquiry is whether the first
attorney that the defendant asserts was ineffective did, in
fact, render ineffective assistance of counsel. If that
attorney was effective, then subsequent counsel
cannot be deemed ineffective for failing to raise the
underlying issue.”
Commonwealth v. Rykard, 55 A.3d 1177, 1190 (Pa. Super. 2012)
(citations omitted and emphasis added).
Furthermore,
[A] petitioner must plead in his PCRA petition that his prior
counsel, whose alleged ineffectiveness is at issue, was
ineffective for failing to raise the claim that counsel who
preceded him was ineffective in taking or omitting some
action. In addition, a petitioner must present argument . .
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. on the three prongs of the Pierce test as to each
relevant layer of representation.
Commonwealth v. Reaves, 923 A.2d 1119, 1128 (Pa. 2007) (citations
omitted).
In Commonwealth v. Rathfon, 899 A.2d 365 (Pa. Super. 2006), this
Court opined:
A criminal defendant has the right to effective counsel
during a plea process as well as during trial. A defendant
is permitted to withdraw his guilty plea under the PCRA if
ineffective assistance of counsel caused the defendant to
enter an involuntary plea of guilty.
We conduct our review of such a claim in accordance
with the three-pronged ineffectiveness test under
section 9543(a)(2)(ii) of the PCRA, 42 Pa.C.S.A. §
9543(a)(2)(ii). The voluntariness of the plea
depends on whether counsel’s advice was within the
range of competence demanded of attorneys in
criminal cases.
* * *
[T]he 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.
Id. at 369-70 (some citations and quotation marks omitted).
Because a plea of guilty effectively waives all non-
jurisdictional defects and defenses, after sentencing,
allegations of ineffectiveness of counsel in this context
provide a basis for withdrawal of the plea only where there
is a causal nexus between counsel’s ineffectiveness, if any,
and an unknowing or involuntary plea. The guilty plea
hearing becomes the significant procedure under scrutiny.
The focus of the inquiry is whether the accused was misled
or misinformed and acted under that misguided influence
when entering the guilty plea.
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Commonwealth v. Flood, 627 A.2d 1193, 1199 (Pa. Super. 1993)
(citations and quotation marks omitted).
Furthermore,
[t]he longstanding rule of Pennsylvania law is that a
defendant may not challenge his guilty plea by asserting
that he lied while under oath, even if he avers that counsel
induced the lies. 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) (citations
omitted).
In the case sub judice, the PCRA court opined:
[Appellant] entered into a written negotiated plea on
September 22, 2014, calling for an aggregate term of
twenty-five to fifty years’ incarceration in return for his
plea to third degree murder and attempted murder. The
first page of the written colloquy twice affirms the terms of
the negotiated sentence. The third page of the colloquy is
signed by [Appellant] below the declaration “I have read
all of the above, or my lawyer read it to me. I understand
it. My answers are all true and correct.” This certification
was witnessed and attested to by the [sic] both
[Appellant’s] attorney and the prosecutor, as well as the
trial court. The court asked [Appellant], prior to admitting
the plea, if he wished to enter the plea, if he had read the
colloquy and understood everything in the colloquy, and if
it was his signature on the third page. [Appellant] further
confirmed that the sentence to which he agreed was
twenty-five to fifty years’ incarceration, and twice that he
was satisfied with his lawyer. When the facts were read to
him [Appellant] acknowledged that those were the facts to
which he was pleading guilty. Prior to entering the plea,
[Appellant] asked for time to speak with his lawyer as well
as his family. Arrangements were made so that he could
speak with both. The plea colloquy, oral and written,
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conveyed all the required information for [Appellant] to
make a knowing, intelligent and voluntary decision and the
totality of the circumstances clearly shows [Appellant’s]
guilty plea met those requirements.
PCRA Ct. Op. at 6-7 (citations to the record omitted). We agree no relief is
due.
Appellant is bound by the statement he made in open court. See
Pollard, 832 A.2d at 253. The PCRA court found that Appellant entered a
knowing, intelligent and voluntary decision to enter a guilty plea, relying
upon the written guilty plea colloquy and oral colloquy. See id.; see also
Santiago, 855 A.2d at 694. Appellant has not shown that but for counsel’s
errors he would not have pleaded guilty. See Moser, 921 A.2d at 531;
Rathfon, 899 A.2d at 370. Our review of the guilty plea hearing belies
Appellant’s assertion of counsel’s ineffective assistance resulting in an
unknowing or involuntary plea. See Flood, 627 A.2d at 1199.
Consequently, PCRA counsel cannot be deemed ineffective for failing to raise
the underlying issue of trial counsel’s ineffectiveness. See Rykard, 55 A.3d
at 1190; Reaves, 923 A.2d at 1128.
For all of the foregoing reasons, we affirm the order denying
Appellant’s PCRA petition.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/29/2017
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