Com. v. Davis, W.

• Court: Superior Court of Pennsylvania
• Decided: August 15, 2022
• Docket: 1332 WDA 2021
• Status: Unpublished

Opinion

J-S20014-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : WAYNE ANTHONY DAVIS : : Appellant : No. 1332 WDA 2021

Appeal from the PCRA Order Entered October 25, 2021 In the Court of Common Pleas of Blair County Criminal Division at No(s): CP-07-CR-0002029-2017

BEFORE: NICHOLS, J., MURRAY, J., and KING, J.

MEMORANDUM BY NICHOLS, J.: FILED: AUGUST 15, 2022

Appellant Wayne Anthony Davis appeals from the order denying his

timely first Post Conviction Relief Act (PCRA)1 petition. Appellant contends

that plea counsel’s ineffectiveness caused him to enter an involuntary and

unknowing guilty plea. Appellant’s PCRA counsel, Paul Puskar, Esq. (PCRA

counsel) has filed a petition to withdraw and a Turner/Finley2 brief. We

affirm the PCRA court’s order and grant PCRA counsel’s petition to withdraw.

The underlying facts of this matter are well known to the parties. See

PCRA Ct. Op., 10/25/21, at 1-2. Briefly, Appellant was charged with multiple

____________________________________________

1 42 Pa.C.S. §§ 9541-9546.

2Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). J-S20014-22

drug-related offenses3 based on a grand jury presentment that detailed his

involvement in a drug distribution organization. See id. Prior to trial,

Appellant filed a motion to sever and an omnibus pretrial motion seeking to

quash the grand jury presentment. See id. at 2. Following a hearing, the

trial court issued an order denying Appellant’s motion to sever. See id. After

concluding that it did not have jurisdiction to quash the grand jury

presentment, the trial court also denied Appellant’s motion to quash. See id.

Appellant subsequently filed another motion to quash the grand jury

presentment before the Supervising Judge of the Thirty-Ninth Statewide

Investigating Grand Jury, which he later withdrew.

The trial court conducted a plea hearing on November 15, 2018. At the

hearing, Appellant participated in an oral colloquy and also completed a

written plea colloquy. In his written plea colloquy, Appellant indicated that he

wished to plead guilty and understood the maximum sentences for each

offense. See Guilty Plea Colloquy Form, 11/16/18, at 3-5. Appellant indicated

that he understood the trial rights he was giving up by pleading guilty,

including the right to confront witnesses against him. See id. at 5-7. Further,

Appellant confirmed that he understood that he was waiving certain appellate

rights by pleading guilty. See id. at 8. Appellant also indicated that he was

entering his plea knowingly, intelligently, and voluntarily, and that he was

satisfied with his attorney’s representation. See id. at 8-11. ____________________________________________

3 35 P.S. §§ 780-101–780-144.

-2- J-S20014-22

During the oral guilty plea colloquy, Appellant acknowledged that by

pleading guilty, he would be giving up his right to litigate pretrial matters.

N.T. Plea Hr’g, 11/16/18, at 8. Appellant also stated on the record that he

was entering his plea knowingly, intelligently, and voluntarily. See id. at 6.

Following the colloquy, Appellant entered a negotiated guilty plea to

possession with intent to deliver (PWID), dealing in the proceeds of unlawful

activities, corrupt organizations, and two counts of criminal conspiracy.4 See

id. at 1-9. In exchange for Appellant’s plea, the Commonwealth withdrew the

remaining charges. See id. at 8. That same day, the trial court imposed the

agreed-upon sentence of twelve to twenty-four years of incarceration with

credit for time served. See id. at 7-8. Appellant did not file a post-sentence

motion.

Appellant filed a timely direct appeal in which he claimed that his plea

was not knowing, intelligent, or voluntary. See Commonwealth v. Davis,

1739 WDA 2018, 2019 WL 6652093 at *1 (Pa. Super. filed Dec. 6, 2019)

(unpublished mem). This Court concluded that Appellant had waived his issue

by failing to preserve it before the trial court during the plea colloquy, at

sentencing, or in a post-sentence motion. See id. at *1-2. Further, the Court

stated that, even if Appellant had preserved his claim, the totality of the

circumstances surrounding his plea demonstrated that it was knowing,

4 35 P.S. § 780-113(a)(30), 18 Pa.C.S. §§ 5111(a)(1), 911(h)(1), and 903, respectively.

-3- J-S20014-22

intelligent, and voluntary. See id. at *2 n.1. Appellant did not petition for

allowance of appeal to the Supreme Court of Pennsylvania.

On June 1, 2020, Appellant filed a timely pro se PCRA petition in which

he argued that plea counsel’s ineffectiveness caused him to enter an

unknowing and involuntary guilty plea.5 See Pro Se PCRA Pet., 6/1/20, at 2,

7. The PCRA court appointed PCRA counsel, who filed an amended petition

on Appellant’s behalf.6 See Amended PCRA Pet., 5/21/21, at 1.

On June 7, 2021, the PCRA court held an evidentiary hearing. Appellant

testified that although he did not want to plead guilty, plea counsel stated that

he would withdraw from representation if Appellant did not take the plea.7

N.T. PCRA Hr’g, 6/7/21, at 10-11. Appellant claimed that he was unaware

that another attorney would have been appointed on his behalf and stated

5 Specifically, Appellant argued that plea counsel forced him to enter a guilty plea by threatening to withdraw from representation and stating that Appellant would not get a fair trial. See Pro Se PCRA Pet., 6/1/20, at 28 (unpaginated). Appellant also claimed that plea counsel “misadvised [Appellant] to waive his pre-trial constitutional rights,” and failed to challenge the “false testimony/false evidence” in the grand jury presentment, which was used as the factual basis for Appellant’s plea. Id. at 10 (unpaginated).

6 In PCRA counsel’s amended petition, he argued that plea counsel was ineffective for withdrawing his motion to quash the grand jury presentment, failing to challenge alleged hearsay statements at the preliminary hearing, failing to obtain evidence which would have “exposed the misinformation presented to the grand jury,” and threatening to withdraw as counsel in order to pressure Appellant into entering a guilty plea. Amended PCRA Pet., 5/21/21, at 1. PCRA counsel also alleged that that Appellant’s plea was not voluntary. Id.

7 Plea counsel did not testify at the evidentiary hearing.

-4- J-S20014-22

that he would not have pled guilty if plea counsel had informed him of that

fact. See id. at 11. Appellant also asserted that plea counsel erred by

withdrawing the second motion to quash because the grand jury presentment

contained misrepresentations about the testimony given at the grand jury

hearing. See id. at 4-5.

On October 25, 2021, the PCRA court issued an opinion and order

denying Appellant’s PCRA petition. Therein, the PCRA court explained that

Appellant had failed to prove that the presentment alone would have

influenced his decision to plead guilty, and that there was no evidence

Appellant’s plea was not knowing, intelligent, or voluntary. See PCRA Ct. Op.

at 6-7. Appellant subsequently filed a timely notice of appeal. In lieu of a

court-ordered Pa.R.A.P. 1925(b) statement, PCRA counsel filed a Rule

1925(c)(4) statement indicating that there were no non-frivolous issues for

appeal and that he intended to file a petition to withdraw. See Statement of

Matters Complained of on Appeal, 11/29/21, at 1.

On December 13, 2021, Appellant filed a pro se Rule 1925(b) statement.

Therein, Appellant raised a litany of issues regarding ineffective assistance by

both plea counsel and PCRA counsel and argued that the PCRA court erred by

dismissing his petition without proper notice under Pa.R.Crim.P. 907. See Pro

Se Rule 1925(b) Statement, 12/13/21, at 1-5 (unpaginated).

-5- J-S20014-22

On January 19, 2022, PCRA counsel filed a Turner/Finley brief and a

petition to withdraw.8 However, before addressing the merits of Appellant’s

ineffective assistance claims, we must first consider whether PCRA counsel

met the technical requirements for withdrawing from representation.

Commonwealth v. Muzzy, 141 A.3d 509, 510 (Pa. Super. 2016). As we

have explained,

[c]ounsel petitioning to withdraw from PCRA representation must proceed. . . . under [Turner and Finley] and. . . . must review the case zealously. Turner/Finley counsel must then submit a “no-merit” letter to the trial court, or brief on appeal to this Court, detailing the nature and extent of counsel’s diligent review of the case, listing the issues which petitioner wants to have reviewed, explaining why and how those issues lack merit, and requesting permission to withdraw.

Counsel must also send to the petitioner: (1) a copy of the “no merit” letter/brief; (2) a copy of counsel’s petition to withdraw; and (3) a statement advising petitioner of the right to proceed pro se or by new counsel.

* * *

Where counsel submits a petition and no-merit letter that . . . satisfy the technical demands of Turner/Finley, the court—trial court or this Court—must then conduct its own review of the merits of the case. If the court agrees with counsel that the claims are without merit, the court will permit counsel to withdraw and deny relief.

Id. at 510-11 (citations omitted and formatting altered).

Here, PCRA counsel detailed his review of the case, evaluated the issues

identified by Appellant, and concluded that all of Appellant’s claims were

8 PCRA counsel filed his petition to withdraw on February 18, 2022.

-6- J-S20014-22

meritless. Turner/Finley Brief at 9. PCRA counsel also provided Appellant

with a copy of the Turner/Finley brief and petition to withdraw, as well as a

letter advising Appellant of his right to proceed pro se or with privately

retained counsel.9 Correspondence, 11/10/21, at 1-2 (unpaginated).

Therefore, we conclude that PCRA counsel has complied with the requirements

necessary to withdraw as counsel. See Muzzy, 141 A.3d at 510-11.

In the Turner/Finley brief, PCRA counsel identifies Appellant’s claims

that plea counsel’s ineffectiveness caused Appellant to enter an involuntary

and unknowing guilty plea. Turner/Finley Brief at 9.

In reviewing the denial of a PCRA petition, our standard of review

is limited to examining whether the PCRA court’s determination is supported by the evidence of record and whether it is free of legal error. The PCRA court’s credibility determinations, when supported by the record, are binding on this Court; however, we apply a de novo standard of review to the PCRA court’s legal conclusions.

Furthermore, to establish a claim of ineffective assistance of counsel, a defendant must show, by a preponderance of the ____________________________________________

9 PCRA counsel’s Turner/Finley brief fails to include a copy of the PCRA court’s opinion or a Rule 1925(b) statement of errors, as required under Pa.R.A.P. 2111(a)(10) and (11). Although we do not condone these defects, they do not prevent effective appellate review in this case. Therefore, we will address the issue as raised in the Turner/Finley brief. See, e.g., Commonwealth v. Sauers, 159 A.3d 1, 5 n.3 (Pa. Super. 2017).

Additionally, we note that Appellant filed an application to proceed pro se in which he averred that, despite his wishes, PCRA counsel refused to subpoena plea counsel. Application to Proceed Pro Se, 3/18/22, at 1. On March 29, 2022, this Court granted Appellant’s application and granted him thirty days – or until April 28, 2022 – to file a pro se response to the Turner/Finley brief. As of this date, Appellant has not filed a pro se response to the Turner/Finley brief.

-7- J-S20014-22

evidence, ineffective assistance of counsel which, in the circumstances of the particular case, so undermined the truth- determining process that no reliable adjudication of guilt or innocence could have taken place. The burden is on the defendant to prove all three of the following prongs: (1) the underlying claim is of arguable merit; (2) that counsel had no reasonable strategic basis for his or her action or inaction; and (3) but for the errors and omissions of counsel, there is a reasonable probability that the outcome of the proceedings would have been different.

Commonwealth v. Sandusky, 203 A.3d 1033, 1043 (Pa. Super. 2019)

(citations omitted and formatting altered). Further, it is well settled that

“counsel cannot be deemed ineffective for failing to raise a meritless claim.”

Commonwealth v. Fears, 86 A.3d 795, 804 (Pa. 2014) (citation omitted).

This Court has explained that “upon entering a guilty plea, [a defendant]

waive[s] his right to challenge on appeal all non-jurisdictional defects except

the legality of his sentence and the validity of his plea.” Commonwealth v.

Rush, 909 A.2d 805, 807 (Pa. Super. 2006) (citation omitted). Therefore,

when a defendant pleads guilty, “a claim of ineffectiveness may provide relief

only if the alleged ineffectiveness caused [the defendant to enter] an

involuntary or unknowing plea.” Commonwealth v. Orlando, 156 A.3d

1274, 1281 (Pa. Super. 2017) (citation omitted); see also Commonwealth

v. Johnson, 875 A.2d 328, 331 (Pa. Super. 2005) (explaining that when

asserting a claim of ineffectiveness of counsel in the context of a guilty plea,

a defendant must show that plea counsel’s ineffectiveness induced him to

enter the plea).

Our Supreme Court has held that when this Court finds an issue waived

on direct appeal but then concludes that the issue is meritless, the ruling on

-8- J-S20014-22

the merits is a valid holding that constitutes the law of the case with respect

to that issue. See Commonwealth v. Reed, 971 A.2d 1216, 1220 (Pa.

2009). Further, because the ruling on the merits of the issue is the law of the

case, it constrains this Court’s review of the same issue in subsequent

collateral proceedings, even if it is nested in an ineffective assistance of

counsel claim. See id. at 1220, 1227.

Here, Appellant claims that plea counsel’s ineffectiveness caused him to

enter an unknowing and involuntary plea. However, as noted previously, a

prior panel of this Court concluded that Appellant waived his challenge to the

validity of his guilty plea on direct appeal. See Davis, 2019 WL 6652093 at

*1-2. Additionally, the Court found that Appellant’s claim was meritless, as

“the totality of the circumstances surrounding Appellant’s plea demonstrate[d]

that it was knowing, voluntary, and intelligent.” Id. at *2 n.1 (citation

omitted). Because this Court’s prior ruling on the merits of Appellant’s claim

constitutes the law of the case, see Reed, 971 A.2d at 1220, Appellant cannot

establish that plea counsel’s ineffectiveness caused him to enter an

involuntary or unknowing plea. See Rush, 909 A.2d at 807; see also

Orlando, 156 A.3d 1274, 1281; Johnson, 875 A.2d at 331. Further, because

Appellant’s underlying claim is meritless, we conclude that neither direct

appeal counsel nor PCRA counsel were ineffective for failing to raise the issue

in subsequent proceedings. See Fears, 86 A.3d at 804. Accordingly,

Appellant’s ineffectiveness claims must fail. See Sandusky, 203 A.3d at

1043.

-9- J-S20014-22

For these reasons, we discern no error or abuse of discretion by the

PCRA court in denying Appellant’s petition.10 Additionally, our review of the

record has not revealed any other issues of merit.11 See Muzzy, 141 A.3d at

510-11. Therefore, we affirm the PCRA court’s order and grant PCRA counsel’s

petition to withdraw.

Order affirmed. Petition to withdraw granted.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8/15/2022

10 As noted previously, the PCRA court concluded that Appellant was not entitled to relief because he failed to prove that the grand jury presentment would have affected his decision to plead guilty, nor had he provided credible evidence that plea counsel had threatened to withdrawal from representation. See PCRA Ct. Op. at 6-7. Although we affirm the PCRA court’s ruling on a different basis, we note that it “is well settled that where the result is correct, an appellate court may affirm a lower court’s decision on any ground without regard to the ground relied upon by the lower court itself.” Commonwealth v. Lehman, 275 A.3d 513, 520 n.5 (Pa. Super. 2022) (citations omitted).

11 As part of our independent review of the record, we note that because the PCRA court conducted an evidentiary hearing, the court was not required to issue a Rule 907 notice of intent to dismiss Appellant’s PCRA petition. See Pa.R.Crim.P. 907(1) (stating that a Rule 907 notice is required when the PCRA court disposes of a petition without a hearing); see also Pa.R.Crim.P. 908(D)(1) (indicating that, where a PCRA court denies a PCRA petition after an evidentiary hearing, the court shall issue an order denying relief). Therefore, Appellant is not entitled to relief on that issue.

- 10 -