II. PROCEDURAL HISTORY
On October 18, 2010, Appellant pled guilty to charges of Robbery, 1 Robbery of a Motor
Vehicle,2 Theft by Unlawful Taking of Movable Property.' Receiving Stolen Property,4 False
Imprisonment,5 Simple Assault,6 Burglary," and Conspiracy.8 Additionally, Appellant pied nolo
contendere to two counts of Attempted Kidnapping. 9 The following is a summary of the
colloquy this Court conducted on the record in the course of Appellant's plea as set forth in our
June 'f, 2014, opinion:
The Court covered the six factors discussed in [Commonwealth v. Ingold, 823 A.2d 917, 920-21 (Pa. Super. Ct. 2003)] in detail with Appellant during the colloquy. Appellant acknowledged that he was presumed innocent and that he had a right to a trial by jury. N.T. 10/18/10, pp. 2-3. The Court advised the Appellant that he would have no obligation to testify at trial but had the option of testifying and presenting his case, and he would have the choice between a jury trial and a bench trial. Id, pp. 3-4. The Court further informed the Appellant that he would be forfeiting the right to raise pretrial issues, and that he would be limiting the issues he could raise on appeal. Id., p. 5. The Court also advised Appellant regarding the availability of a presentence investigation. Id., p. 7. Furthermore, the court advised Appellant of the manifest injustice standard for
1 18 Pa.C.S. § 370i(a)(l)(ii) and (iv). 2 18 Pa.C.S. § 3702. 3 18 Pa.C.S. § 3921. 4 18 Pa.C.S. § 3925. 5 18 Pa.C.S. § 2903. 6 18 Pa.C.S. § 2701. 7 18 Pa.C.S. § 3502. 8 18 Pa.C.S. § 903. 918 Pa.C.S. § 901; 18 Pa.C.S. 290l(a).
3 'withdrawing a guilty plea. Id., p. 8. The Appellant confirmed that he was not forced to plead guilty and received no promises regarding the sentence. Id., pp. 5-6.
The Court informed Appellant that, in general, the charges on the information involved a robbery in the course of a theft of a 2007 Mercedes Benz in which he threatened Ms. Forte by intentionally placing her in fear of immediate serious bodily injury. N.T. 10/18/10, p. 9. Appellant acknowledged that he understood the charges. Id. The Court reviewed each charge on the information with Appellant, and informed him of the largest maximum and minimum to which he could be sentenced. Id., pp. 9-15. Appellant acknowledged that the largest aggregate maximum sentence he could ·receive was 80 years. Id., p. 14. In addition, the Court made clear to Appellant the counts on which it would not sentence him separately. Id., pp. 9-15. Appellant substantially agreed with the facts provided by the Commonwealth. Id., pp. 17-27.
Trial Ct. Op., June 'f, 2014. In addition to the above oral colloquy, we separately discussed
Appellant's nolo contendere plea to two counts of Attempted Kidnapping, as demonstrated by
the following exchange:
MR. JAMES: Your Honor, the defendant's pleading no contest to Counts 3 or 4.
THE COURT: So you're pleading no contest to that offense; is that correct?
THE DEFENDANT: Yes.
THE COURT: You understand that by pleading no contest you will stand convicted of these crimes just as if you've gone to trial and been convicted by them. Do you understand that?
N.T. 10/18/10, p. 10. Further, plea counsel conducted an additional colloquy with the Appellant
regarding his nolo contendere plea:
BY MR. ABAZA:
Q: First of all, Mr. Dillard, you heard the facts as recited by Mr. James, correct?
A: Yes.
Q: Do you substantially agree with those facts?
A:Yes.
4 · Q: And the Commonwealth agreed to allow you to plead no contest to the robbery and the attempted kidnapping?
Q: And we went over at great length that no contest means that you're not admitting to the charge but you're not contesting the evidence that the Commonwealth has. That is, the DNA evidence and the fingerprints and the testimony of the co-defendants?
THE COURT: Are you satisfied that your lawyer is familiar with all of the evidence and the issues in the case?
MR. JAMES: Just want to correct one thing, Your Honor. Commonwealth's not agreeing to the no contest. Commonwealth has no legal basis to object to no contest.
MR. ABAZA: Thank you for the correction.
N.T. 10/18/10, pp. 32-33. Finally, in a third exchange with the District Attorney, Appellant
again confirmed his knowing and voluntary nolo contendere plea:
BY MR. JAMES:
Q: Mr. Dillard, you heard the facts as I read them into the record?
Q: And you substantially agree with the facts as I read them into the record today?
Q: And you agree you are guilty of robbery, burglary. You're pleading no contest to attempted kidnapping and that you agree that you are guilty, in fact, of conspiracy to commit the robbery of Claire Forte's vehicle?
N.T. 10/18/10, pp. 39-40. On that same date, we sentenced Appellant to.an aggregated 16 to 32
years' confinement.
5 Appellant did not file post sentence motions or a direct appeal. On September 6, 2011,
Appellant filed his first PCRA petition, which raised issues of ineffective assistance for plea
counsel's failure to preserve Appellant's post sentence motion and direct appellate rights. After
a hearing, we granted Appellant's petition, in part, and ordered that his post-sentence motion
rights and direct appeal rights be reinstated nunc pro tune. On July 30, 2013, Appellant filed a
Motion for Reconsideration of Sentence. On August 2, 2013, Appellant filed a supplemental
post-sentence motion. Following a hearing on December 18, 2013, this Court denied Appellant's
post-sentence motions. Appellant filed a timely Notice of Appeal to the Superior Court on
January 17, 2014. On February 19, 2014, Appellant filed a Statement pursuant to Pennsylvania
Rule of Appellate Procedure l 925(b ), which raised additional ineffective assistance claims. On
March 31, 2015, the Superior Court affirmed Appellant's sentence and held that his ineffective
assistance claims were not ripe for direct appellate review pursuant to Commonwealth v.
Holmes, 79 AJd 562 (Pa. 2013). See Commonwealth v. Dillard, No. 202 EDA 2014 (Pa. Super
Ct. 2015). The Superior Court dismissed his ineffective assistance claims without prejudice to
pursue them on collateral review. Id.
On March 7, 2016, Appellant filed his second PCRA petition. This Court appointed
counsel, and Appellant subsequently filed an Amended PCRA petition on.Aujii.st 10, 2017. In
his Amended Petition, Appellant raised ineffective assistance issues related to plea counsel's
failure to investigate certain exculpatory evidence, and plea counsel's failure to object or
otherwise appeal this Court's nolo contendere colloquy. On October 24, 2017, this Court held a
hearing, and Appellant withdrew all claims on the record except those associated with this
Court's nolo contendere colloquy. This Court ordered the parties to submit letter briefs on the
nolo contendere colloquy claims and took the matter under advisement. On November 30, 2017,
6 after review of the parties' submissions, we denied and dismissed Appellant's Amended Petition.
On December 15, 2017, Appellant filed a timely Notice of Appeal to the Superior Court.
III. MATTERS COMPLAINED OF ON APPEAL
On January 11, 2018, this Court issued an order pursuant to Pennsylvania Rule of
Appellate Procedure 1925(b) directing Appellant to file a Concise Statement of Matters
Complained of on Appeal. On January 31, 2018, Appellant filed such a statement, which raised
the following issues, verbatim:
1. Plea counsel was ineffective for failing to object to the inadequate colloquy given by the Court as the basis for the entry of the nolo contendere plea. The colloquy on the nolo contendere did not fully explain to the Defendant what it meant to enter a plea of nolo contendere and the judge only stated that "you understand that by pleading no contest you will stand convicted of these crimes just as if you have gone to trial and have been convicted by them, do you understand that?" There is no further colloquy on effects of the nolo plea and what it meant as far as an admission of guilt.
2. Plea counsel was ineffective for failing to file an appeal on the inadequate colloquy for the nolo contendere plea to the kidnapping charges.
3. First PCRA counsel was ineffective for not raising the inadequate nolo contendere plea colloquy during the initial PCRA petition.
IV. ANALYSIS
Appellant argues that plea counsel was ineffective for failing to object to this Court's
colloquy regarding his nolo contendere plea. Appellant further argues that plea counsel was
ineffective for failing to raise the issue of the allegedly inadequate colloquy on direct appeal, and
that Appellant's initial PCRA counsel was ineffective for failing to raise the same issue in the
first PCRA petition. We find that this Court's colloquy was adequate, that Appellant fully
understood the nature and consequences of pleading nolo contendere, and that Appellant did so
knowingly, voluntarily and intelligently. As a result, neither plea counsel nor initial PCRA
counsel was ineffective for failing to challenge or otherwise appeal this Court's nolo contendere
colloquy.
7 A claim that plea counsel's ineffectiveness caused an involuntary plea must be examined
under the PCRA' s ineffective assistance provision rather than the unlawfully induced plea
provision. Commonwealth v. Hickman 799 A.2d 136 (Pa. Super. Ct. 2002). The Pennsylvania
Supreme Court in Commonwealth v. Pierce established a three-part test for ineffective assistance
claims: (1) the claim must have arguable merit; (2) counsel must have lacked any reasonable
basis for his/her action or omission; and (3) the defendant must have been prejudiced by
counsel's conduct. 527 A.2d 973, 976-77 (Pa. 1987). The test does not employ a hindsight
evaluation of the record and does not consider whether other alternative courses of action were
more reasonable. Commonwealth v. McNeil, 487 A.2d 802, 805 (Pa. 1985) (citations omitted).
Where trial counsel's decisions had a reasonable basis, the balance tips in favor of finding
effective assistance. Id. at 805-06.
A defendant must prove that counsel's ineffectiveness caused him to enter the plea, and
that the resulting plea "question[s] the reliability of the manner in which [Petitioner's] guilt was
determined." Commonwealth v. Lutz, 424 A.2d 1302 (Pa. 1981); Commonwealth v.
Laszczynski, 715 A.2d 1185, 1187 (Pa. Super. Ct. 1998). Ineffective assistance may rise to the
level of unlawful inducement if a defendant establishes a "causal nexus between counsel's
ineffectiveness and the allegedly invalid plea." Commonwealth v. Flood, 627 A.2d 1193, 1199
(Pa. Super. Ct. 1993). Counsel's failure to object to an inadequate guilty plea may constitute a
"causal nexus" under certain circumstances. Commonwealth v. Jones, 640 A.2d 1330, 1335 (Pa.
Super. Ct. 1994 ). In Jones, the Pennsylvania Superior Court held that plea counsel was
ineffective, and the defendant's plea was involuntary, where the trial court failed to apprise the
defendant of the possibility that his sentences could be imposed consecutively, and where plea
8 counsel failed to object to the inadequate colloquy. Id. (citing Commonwealth v. Persinger, 615
A.2d 1305, 1308 (Pa. 1992)).
A valid plea must be knowingly, voluntarily, and intelligently entered. Commonwealth
v. Pollard, 832 A.2d 517, 522 (Pa. Super. Ct. 2003) (citation omitted). "In terms of its effect
upon a case, a plea of a nolo contendere is treated the same as a guilty plea." Commonwealth v.
Lewis, 791, A.2d 1227, 1231 (Pa. Super Ct. 2002) (citations omitted). For a plea to be valid, a
trial court must, at a minimum, conduct an on-the-record colloquy that includes the following
mqumes:
(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 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?
Ingold, 823 A.2d at 920-21; Pa.R.Crim.P. 590. Tue Court determines whether the plea was
voluntary, knowing, and intelligent based on an examination of the totality of the circumstances.
Commonwealth v. Broadwater, 479 A.2d 526, 532 (Pa. 1984). Even an omission or defect in a
colloquy will not render a guilty or nolo contendere plea 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. Fluharty, 632 A.2d 312, 315 (Pa. Super. Ct. 1993).
9 To withdraw a plea after sentencing, a defendant must make a showing of prejudice
amounting to "manifest injustice." Commonwealth v. Carpenter, 725 A.2d 154, 164 (Pa. 1999).
"A plea rises to the level of manifest injustice when it was entered into involuntarily,
unknowingly, or unintelligently." Ingold, 823 A.2d at 920.
Here, we note initially that Appellant does not claim that the entirety ofthis Court's
colloquy, or at least the portion regarding Appellant's entrance of guilty pleas, was inadequate;
nor does Appellant claim that the entirety of his plea, or his guilty plea alone, was unknowing or
involuntary. We also note that Appellant neither claims his innocence of any of the charges nor
asserts any other prejudice amounting to manifest injustice that would allow him to withdraw his
nolo contendere plea. Rather, Appellant only argues that this Court did not adequately explain
the nature and consequences of his nolo contendere plea to two counts of Attempted Kidnapping.
Consequently, Appellant essentially argues that his nolo contendere plea was unlawfully induced
because plea counsel was ineffective for failing to object to this Court's allegedly defective
colloquy, and that plea counsel's error was the "causal nexus" for the allegedly invalid plea.
Nevertheless, under a totality of the circumstances, Appellant was well aware of the nature and
consequences of entering a nolo contendere plea, and did so knowingly, voluntarily and
intelligently. To that end, plea counsel's actions could not have unlawfully induced an invalid
nolo contendere plea, and prior counsel's failure to appeal this Court's colloquy did not
constitute ineffective assistance of counsel.
In support of his argument that this Court's colloquy as to that plea was inadequate, - Appellant relies on the Pennsylvania Supreme Court's ruling in Commonwealth v. Gunter, 771
A.2d 767 (Pa. 2001). See Letter Brief in Support of Petitioner's Amended Post Conviction
Relief Act Petition. However, Appellant's reliance on Gunter is misplaced. In that case, the
10 Court found a defendant's nolo contendere plea involuntary and unknowing where the trial court
administered no oral colloquy. Id. at 769. Instead, the defendant merely answered a written
colloquy form that made no mention of a no contest plea, and contained numerous errors and
altered answers that belied the reliability and validity of the defendant's plea. Id. at 770-71.
Here, unlike the trial court in Gunter, this Court administered a full and thorough
colloquy that addressed all but the final Ingold requirement, as there was no plea agreement.
N.T. 10/18/10, pp. 2, 3, 9-11, 17-27. Additionally, we conducted a separate colloquy that
explained the nature and circumstances of a no contest plea. Id. at 10. In response to all
questions posed to him, Appellant stated that he understood what was being explained to him,
that he was not taking any medications, and that he was not otherwise under the influence of any
drugs or alcohol. Id. at 6. Additionally, Appellant specifically affirmed that he understood this
Court's explanation of the charges, the permissible ranges of sentence, and the various rights he
would relinquish upon entering a plea. Id. at 2-5, 7-15. Appellant further affirmed that he
substantially agreed with the Commonwealth's presentation of the factual basis for the plea. Id.
at 17-27, 39-40. In response to three separate inquiries by this Court, Appellant repeatedly
affirmed that he was satisfied with plea counsel's familiarity with his case. Id. at 6, 31, 32.
Finally, Appellant also affirmed his understanding of the possibility that his sentences as to each
count could be imposed consecutively. Id. at 14.
Specifically regarding the nolo contendere plea, Appellant affirmed that he fully
understood the nature and consequences of a no contest plea in three separate exchanges with the
Court, plea counsel, and the District Attorney. N.T. 10/18/10, pp. 10, 32-33, 39-40.
Specifically, Appellant acknowledged that he and plea counsel discussed the meaning of a nolo
contendere plea at "great length," and that he was satisfied with counsel's familiarity with the
11 issues ·in his case. Id. at 32. Appellant had ample opportunity throughout the proceedings to ask
additional questions, contest the factual basis for the plea, or withdraw the plea entirely. Indeed,
Appellant asked this Court for additional clarification regarding his right of allocution, as
demonstrated by the following exchange:
THE COURT: You exercise your right of allocution. That is, you wish to make a statement regarding post sentence?
THE DEFENDANT: I don't understand the question.
THE COURT: Do you want to say something before I impose sentence? This is your chance to say something you wish to say before I impose sentence.
Id. at 40. Further, when the District Attorney discussed Appellant's prior record, the Appellant
specifically contested the Commonwealth's allegation that he was a gang member:
THE COURT: I noticed that your client sort of responded in a negative way to the allegation that he was a gang member.
MR. ABAZA: That's correct.
THE COURT: Does he deny that?
MR. ABAZA: Yes.
THE COURT: Then I will disregard the comment.
Id. at 27, 30-31. The above exchanges indicate that Appellant was an active participant in the
proceedings such that he could have asked additional questions, corrected erroneous statements,
or moved to withdraw his plea if necessary. Consequently, Appellant had numerous
opportunities to ask additional questions regarding the nature and consequences of a nolo
contendere plea and correct any confusion that remained after this Court's initial colloquy.
Contrary to Appellant's assertions, this Court's succinct statement regarding the
consequences of a nolo contendere plea cannot, standing alone, invalidate Appellant's plea.
Appellant has presented no legal authority, nor is this Court aware of any, to support the claim
12 that this Court's statement regarding that plea was either incorrect or insufficient. Rather, the
totality of the circumstances surrounding the plea, which includes this Court's nolo contendere
colloquy, our complete and thorough guilty plea colloquy, and the numerous exchanges
described above, reveal that Appellant "had a full understanding of the nature and consequences
of his plea and that he knowingly and voluntarily decided to enter the plea." Fluharty, 632 A.2d
at 315. Accordingly, this Court conducted an adequate colloquy that apprised Appellant of the
nature and consequences of entering a nolo contendere plea, and we properly accepted that plea
as knowingly and intelligently entered. Thus, because this Court's colloquy was more than
adequate, Appellant's ineffectiveness claims must fail, as neither plea counsel nor initial PCRA
counsel was ineffective for failing to challenge or otherwise appeal our colloquy. As a result,
Appellant cannot establish a causal nexus between counsel's actions and his resulting nolo
contendere plea such that it rises to the level of unlawful inducement.
V. CONCLUSION
For the foregoing reasons, we respectfully submit that Appellant's argument is without
merit.
BY THE COURT: