Com. v. Beal, J.

• Court: Superior Court of Pennsylvania
• Decided: September 19, 2019
• Docket: 2474 EDA 2018
• Status: Unpublished

Opinion

J-S35029-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

JAMES P. BEAL

Appellant No. 2474 EDA 2018

Appeal from the Order Entered July 17, 2018 In the Court of Common Pleas of Bucks County Criminal Division at No.: CP-09-CR-0007286-2007

BEFORE: OLSON, STABILE, and STRASSBURGER,* JJ.

MEMORANDUM BY STABILE, J.: FILED SEPTEMBER 19, 2019

Appellant James P. Beal pro se appeals from the July 17, 2018 order

entered in the Court of Common Pleas of Bucks County (“PCRA court”), which

denied his request for collateral relief under the Post Conviction Relief Act (the

“PCRA”), 42 Pa.C.S.A. §§ 9541-46. Upon review, we affirm.

The facts and procedural history of this case are undisputed. 1 Briefly,

on February 29, 2008, Appellant pleaded guilty to a plethora of drug offenses,2 ____________________________________________

* Retired Senior Judge assigned to the Superior Court. 1Unless otherwise specified, these facts come from the PCRA court’s August 15, 2018 opinion filed pursuant to Pa.R.A.P. 1925(a). 2 Between docket numbers 7274-2007 and 7286-2007, Appellant pleaded guilty to hundreds of counts of manufacture/deliver/possession with intent to manufacture/deliver a controlled substance (35 P.S. § 780-113(a)(30)), criminal use of a communication facility (18 Pa.C.S.A. § 7512(a)), use/possession of drug paraphernalia (35 P.S. § 780-113(a)(32)), criminal attempt – manufacture/deliver/possession with intent to manufacture or J-S35029-19

and was originally sentenced by the trial court to an aggregate period of

incarceration of not less than 20 nor more than 41 years’ incarceration and a

fine in excess of $2.8 million. Appellant filed a direct appeal, challenging the

validity of his guilty pleas and the imposition of his sentence “without

reference” to the sentencing guidelines. On January 19, 2011, we determined

that Appellant had waived all issues pertaining to his guilty pleas, but vacated

the sentence and remanded the case “so that the trial court can consider the

applicable sentencing guidelines and impose a punishment that is consistent

with the Sentencing Code.” Commonwealth v. Beal, No. 1123 EDA 2008

and No. 1263 EDA 2008, unpublished memorandum at 8 (Pa. Super. filed

January 19, 2011).

On December 22, 2011, the trial court convened a hearing, after which

it re-sentenced Appellant to not less than 18 nor more than 40 years’

incarceration plus costs. It re-imposed the fine exceeding $2.8 million.

Appellant filed a motion for reconsideration, which the trial court denied.

Appellant appealed to this Court. A panel of this Court affirmed Appellant’s

judgment of sentence. See Commonwealth v. Beal, No. 1300 EDA 2012,

unpublished memorandum at 7-8 (Pa. Super. filed April 1, 2013). On

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deliver (18 Pa.C.S.A. § 901(a)), dealing in unlawful proceeds of unlawful activity (18 Pa.C.S.A. § 5111(a)(1)), and criminal conspiracy with respect to manufactur/deliver/possession with intent to manufacture or deliver (18 Pa.C.S.A. § 903(a)(1)). However, this appeal is limited to only docket number 7286-2007.

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December 11, 2014, our Supreme Court denied Appellant’s petition for

allowance of appeal. See Commonwealth v. Beal, 105 A.3d 660 (Pa. 2014).

Following the October 6, 2014 denial of his writ of certiorari by the

United States Supreme Court, Appellant pro se filed the instant PCRA petition

on September 28, 2015. In his petition, Appellant raised, among other things,

mandatory minimum sentencing claims under Alleyne3 as well as claims for

ineffective assistance of counsel. The PCRA court appointed counsel, who filed

amended petitions. On May 8, 2017, Appellant pro se filed a motion

requesting the appointment of new counsel. On January 24, 2018, the PCRA

court granted the motion and appointed a new counsel, who subsequently

filed a no-merit letter under Turner/Finley4 on April 24, 2018. On May 17,

2018, the PCRA court issued a Pa.R.Crim.P. 907 notice of its intent to dismiss

Appellant’s PCRA petition without a hearing. On May 25, 2018, Appellant filed

his response to the no-merit letter. On June 7, 2018, the PCRA court issued

an order, granting in part and denying in part Appellant’s post-conviction relief

petition. Specifically, the PCRA court granted the petition to the extent it

challenged Appellant’s sentence under Alleyne. In this regard, the PCRA

court granted him a new sentencing hearing without the application of the

mandatory minimum sentencing provisions of 18 Pa.C.S.A. § 7508, relating ____________________________________________

3 Alleyne v. United States, 133 S. Ct. 2151, 2161-63 (2013) (holding that any fact other than a prior conviction that triggers a mandatory minimum sentence must be found by the fact-finder beyond a reasonable doubt). 4Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).

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to drug trafficking sentencing and penalties. The PCRA court, however, denied

Appellant relief on his ineffectiveness claim with respect to the voluntariness

of his guilty pleas.

On June 26, 2018, Appellant pro se filed a notice of appeal docketed at

1870 EDA 2018, which he ultimately discontinued on September 18, 2018.

On June 27, 2018, Appellant pro se filed a timely motion for reconsideration,

asserting that he never received the PCRA court’s Rule 907 notice and seeking

an opportunity to respond to the same. On June 29, 2018, the PCRA court

granted reconsideration, directing Appellant to file a response to the Rule 907

notice by July 27, 2018. On July 9, 2018, Appellant’s PCRA counsel filed a

petition to withdraw as counsel. On July 16, 2018, Appellant filed a pro se

response to the Rule 907 notice. On July 17, 2018, the PCRA court issued an

order affirming its June 7, 2018 order, granting in part and denying in part

the PCRA petition and granting counsel’s petition to withdraw. On August 13,

2018, Appellant pro se timely appealed to this Court. The PCRA court directed

Appellant to file a Pa.R.A.P. 1925(b) statement of errors complained of on

appeal. Appellant complied, raising two assertions of error.

[I.] Trial Counsel was ineffective by failing to ensure that the petitioner understood his rights, the nature of the charges against him and the overall aggregated consequences of his guilty plea, including the weights and amounts of controlled substances that he was being accused of delivering, the permissible ranges of sentences and fines for all of the offenses he was pleading guilty to as well as the cumulated total of the permissible ranges of sentences and fines and the nature of any mandatory sentences being sought by the Commonwealth. This failure resulted in a manifest injustice by facilitating the entry of an unknowing, involuntary, and unintelligent plea.

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[II.] The petitioner’s guilty plea was unknowing, involuntary and unintelligent due to the petitioner not being advised of all the charges against him, the overall consequences of him pleading guilty to over three -hundred (300) felonies including the total aggregate sentence and fines, the correct weights and amounts of the controlled substances that he was being accused of delivering, the permissible ranges of sentences and fines for each of the possession with intent to deliver charges as well as the permissible ranges of sentences and fines for the multitude of other offenses that he was pleading guilty to and the nature of any mandatory sentences being sought by the Commonwealth and trial counsel was ineffective for not filing a motion to withdraw the guilty plea.

Rule 1925(b) Statement, 8/28/18, at ¶ 2(a), (b) (unnecessary capitalization

omitted). In response, the PCRA court issued a Pa.R.A.P. 1925(a) opinion,

concluding that Appellant’s appeal lacked merit.

On appeal,5 Appellant repeats the same issues for our review, which

implicate an ineffective assistance of counsel claim. At the core, Appellant

argues only that his guilty plea was not knowing, voluntary and intelligent

because of his counsel’s ineffectiveness. Specifically, he argues that his

counsel was ineffective for allowing him to plead guilty without informing him

of the sentencing consequences under the plea and failing to file a motion to

withdraw the guilty plea. Appellant’s Brief at 9. As a result, and without

reference to any legal authority, Appellant contends that his counsel was per

se ineffective. Id. This contention with respect to per se ineffectiveness,

5“In reviewing the denial of PCRA relief, we examine whether the PCRA court’s determination ‘is supported by the record and free of legal error.’” Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014) (quoting Commonwealth v. Rainey, 928 A.2d 215, 223 (Pa. 2007)).

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however, is not anchored in the law.6 See generally Commonwealth v.

Timchak, 69 A.3d 765, 776 (Pa. Super. 2013) (concluding that counsel was

not ineffective for failing to inform Timchak that he could seek to withdraw his

guilty plea because plea counsel had a reasonable basis for not doing so).

On the contrary, to be entitled to relief on ineffectiveness grounds,

Appellant was required to plead and prove that counsel’s ineffectiveness

caused an involuntary or unknowing plea. See Commonwealth v. Fowler,

893 A.2d 758, 765 (Pa. Super. 2006) (affirming denial of PCRA relief where

appellant pled that his guilty plea was involuntary and unknowing because it

was improperly induced by counsel’s promise and assurance that he would not

receive the statutory maximum); see also 42 Pa.C.S.A. § 9543(a)(2)(ii).

Indeed, “[i]t is well-established that counsel is presumed effective, and to

rebut that presumption, the PCRA petitioner must demonstrate that counsel’s

performance was deficient and that such deficiency prejudiced him.” ____________________________________________

6 In Pennsylvania, per se ineffectiveness has been recognized only in limited circumstances “where there was an actual or constructive denial of counsel, the state interfered with counsel’s assistance, or counsel had an actual conflict of interest.” Commonwealth v. Reaves, 923 A.2d 1119, 1128 (2007). For instance, in Commonwealth v. Halley, 870 A.2d 795 (Pa. 2005), our Supreme Court concluded that counsel who fails to file a Rule 1925(b) statement for purposes of a first as-of-right direct appeal is per se ineffective. Compare Commonwealth v. Hill, 16 A.3d 484 (Pa. 2011) (failure to file a 1925(b) statement for purposes of capital PCRA review resulted in waiver). Similarly, in Commonwealth v. Burton, 973 A.2d 428 (Pa. Super. 2009), this Court determined that counsel’s filing of an untimely Rule 1925(b) statement was per se ineffective. The limited application of per se ineffectiveness, however, has not been extended to general ineffectiveness claims under the PCRA.

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Commonwealth v. Koehler, 36 A.3d 121, 132 (Pa. 2012) (citation omitted).

“To prevail on an [ineffectiveness] claim, a PCRA petitioner must plead and

prove by a preponderance of the evidence that (1) the underlying legal claim

has arguable merit; (2) counsel had no reasonable basis for acting or failing

to act; and (3) the petitioner suffered resulting prejudice.” Commonwealth

v. Reyes-Rodriguez, 111 A.3d 775, 780 (Pa. Super. 2015) (en banc). “A

petitioner must prove all three factors of the “Pierce[7] test,” or the claim

fails.” Id. Put differently, “[t]he burden of proving ineffectiveness rests with

Appellant.” Commonwealth v. Chmiel, 889 A.2d 501, 540 (Pa. 2005).

Instantly, Appellant is not entitled to relief. Despite his argument that

his ineffectiveness claims meet the arguable merit prong of the Pierce test,

his brief is bereft of any discussion or argument with respect to the reasonable

basis and prejudice prongs. As we recently emphasized, “[a] petitioner must

prove all three factors of the Pierce test, or the [ineffectiveness] claim fails.

In addition, on appeal, a petitioner must adequately discuss all three

factors of the Pierce test, or the appellate court will reject the claim.”

Reyes-Rodriguez, 111 A.3d at 780 (emphasis added) (citing Fears, 86 A.3d

at 804)). Thus, given Appellant’s failure to discuss the reasonable basis and

prejudice prongs on appeal, we must reject his ineffectiveness claims.

Nonetheless, even if we were to review the merits of his ineffectiveness

claim, we would conclude that he still is not entitled to relief. Our review of

7 Commonwealth v. Pierce, 527 A.2d 973 (Pa. 1987).

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the oral guilty plea colloquy does not reveal any grounds for challenging the

validity of Appellant’s plea agreement. Specifically, the guilty plea colloquy

reveals that Appellant was advised of the maximum sentence that the trial

court could impose and that such sentences could be consecutive. N.T. Guilty

Plea, 2/29/08, at 8-10. As the trial court observed, “[Appellant]

acknowledged that he knew he was going to receive a substantial sentence

that he was ‘going to get hit.’” Trial Court Opinion, 8/15/18, at 9. Additionally,

Appellant agreed to the Commonwealth’s facts supporting the listed charges

and affirmed that he was pleading guilty on his own volition and that he

understood the terms and consequences of doing so. Appellant also agreed

that he understood the consequences of relinquishing his right to a trial by a

judge or a jury. Appellant agreed that by pleading guilty he also was giving

up his pretrial rights. Appellant further stated that no one promised or

threatened him to plead guilty. Although Appellant claimed that he was taking

medication for panic attacks, he stated that the medication did not affect his

ability to understand.

Thus, based upon our review of the record, Appellant’s claim that his

guilty plea was involuntary, unintelligent, or unknowing because he was not

apprised of the sentencing consequences lacks merit and is belied by his oral

colloquy. Appellant is bound by the statements he made at the time of his

guilty plea. Commonwealth v. Brown, 48 A.3d 1275, 1277 (Pa. Super.

2012) (A defendant is bound by the statements made during the plea colloquy,

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and a defendant may not later offer reasons for withdrawing the plea that

contradict statements made when he pleaded guilty).

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9/19/19

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