Com. v. Driver, A.

• Court: Superior Court of Pennsylvania
• Decided: April 11, 2022
• Docket: 138 WDA 2021
• Status: Unpublished

Opinion

J-S38038-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : ANTHONY TYRONE DRIVER : : Appellant : No. 138 WDA 2021

Appeal from the PCRA Order Entered December 9, 2020 In the Court of Common Pleas of Westmoreland County Criminal Division at No(s): CP-65-CR-0001513-2018

BEFORE: BENDER, P.J.E., DUBOW, J., and COLINS, J.*

MEMORANDUM BY COLINS, J.: FILED: APRIL 11, 2022

Appellant, Anthony Tyrone Driver, appeals pro se from the order of the

Court of Common Pleas of Westmoreland County (trial court) that dismissed

his first petition filed under the Post Conviction Relief Act (“PCRA”).1 After

careful review, we affirm.

Appellant was stopped by a Pennsylvania State Police trooper while

driving on the Pennsylvania Turnpike on February 6, 2018, and a search of his

car was conducted in which the State Police found a stolen handgun, three

pounds of marijuana, and five clear bags of cocaine. Appellant was arrested

and charged with possession of a firearm by a person prohibited, carrying a

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* Retired Senior Judge assigned to the Superior Court. 1 42 Pa.C.S. §§ 9541–9546. J-S38038-21

firearm without a license, receiving stolen property, three counts of possession

of a controlled substance with intent to deliver (PWID), three counts of

possession of a controlled substance, and possession of drug paraphernalia.

Appellant filed a motion to suppress in which he asserted that the search of

his car violated his rights under the Fourth Amendment to the United States

Constitution and Article I, Section 8 of the Pennsylvania Constitution because

the State Police lacked probable cause or reasonable suspicion to stop and

detain him. On February 27, 2019, the trial court, following a hearing, denied

the suppression motion.

On March 11, 2019, Appellant, represented by counsel, entered a

negotiated guilty plea to possession of a firearm by a person prohibited,

carrying a firearm without a license, two counts of PWID, and two counts of

possession of a controlled substance. N.T. Guilty Plea and Sentencing at 6-9.

This plea agreement, which the trial court accepted, provided that Appellant

would receive an aggregate sentence of four to eight years’ incarceration and

that Commonwealth dismissed the receiving stolen property and possession

of drug paraphernalia charges and the remaining PWID and possession of a

controlled substance counts. Id. at 3-5, 10; Guilty Plea Petition ¶8. In

accordance with that plea agreement, the trial court sentenced Appellant to

an aggregate term of four to eight years’ incarceration, consisting of

concurrent sentences of four to eight years’ incarceration for possession of a

firearm by a person prohibited, one to three years’ incarceration for carrying

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a firearm without a license, and one to three years’ incarceration for the two

PWID counts, with the two possession of a controlled substance counts

merging with the PWID counts. N.T. Guilty Plea and Sentencing at 10-11;

Sentencing Order. Appellant did not file any post-sentence motion or direct

appeal.

On March 11, 2020, Appellant filed the instant timely first PCRA petition.

The trial court2 appointed counsel for Appellant. On June 29, 2020, Appellant’s

PCRA counsel filed a no-merit letter in which he concluded that Appellant had

no meritorious PCRA claims because the record showed that his guilty plea

was knowing and voluntary and requested that he be granted leave to

withdraw. No-Merit Letter at 2-3. On September 22, 2020, the trial court

issued a notice pursuant to Pa.R.Crim.P. 907 of its intent to dismiss Appellant’s

PCRA petition without a hearing on the ground that it was without merit.

Appellant filed a response to the Rule 907 notice.

On December 9, 2020, the trial court entered an order dismissing

Appellant’s PCRA petition and granting PCRA counsel’s request to withdraw.

Trial Court Opinion and Order, 12/9/20, at 4-5. Appellant filed the instant

appeal from this order. On January 28, 2021, the trial court entered an order

pursuant to Pa.R.A.P. 1925(b) directing Appellant to file and serve on the trial

2 The trial court judge to whom Appellant’s PCRA petition was assigned was a different judge from the trial court judge who adjudicated his suppression motion, accepted his plea and sentenced him.

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judge within 21 days a statement of errors complained of on appeal and

stating that any issue not included in a timely filed statement of errors

complained of on appeal “shall be deemed waived.” Trial Court Order,

1/28/21. Appellant did not file or serve any statement of errors complained

of on appeal within 21 days of this order or at any time thereafter. On March

1, 2021, the trial court filed a Rule 1925 opinion in which it noted Appellant’s

failure to file any statement of errors complained of on appeal as a ground for

affirmance, in addition to the reasons set forth in its Rule 907 Notice and its

December 9, 2020 Opinion and Order. Trial Court Memorandum in Lieu of

Rule 1925 Opinion.

In his brief, Appellant lists as issues that he seeks to raise in this appeal

various claims concerning an alleged denial of counsel at his formal

arraignment, the trial court’s denial of his suppression motion, and

ineffectiveness of trial counsel prior to and in connection with his guilty plea.

Appellant’s Brief at 1. Before addressing the merits of these issues, we must

consider whether Appellant failed to preserve any issues for review.

The law is clear that where the trial court has issued a Rule 1925(b)

order to the appellant, the appellant’s failure to file a statement of errors

complained of on appeal and serve it on the trial court waives all issues on

appeal. Commonwealth v. Parrish, 224 A.3d 682, 692-63, 700 (Pa. 2020);

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Commonwealth v. Butler, 812 A.2d 631, 633-34 (Pa. 2002).3 Here, the

trial court issued a Rule 1925(b) order and Appellant filed no statement of

errors complained of on appeal.

Appellant has asserted that he did not receive the trial court’s 1925(b)

order. Appellant’s 3/15/21 Letter Application for Relief. The record, however,

is clear that the trial court served its order on Appellant. The Rule 1925(b)

order sets forth that it was sent to Appellant and the address to which it was

sent. Trial Court Order, 1/28/21, at 2. That address is the address that

Appellant concedes is his correct address. See also 3/18/21 Order of this

Court (denying Appellant’s application for additional time to show that he did

not receive the Rule 1925(b) order on the grounds that “a review of the record

shows that a copy of the lower court's order … directing Appellant to file a

Concise Statement of Errors pursuant to Pa.R.A.P. 1925(b) was, in fact, served

on Appellant”). Because Appellant was served with the trial court’s Rule

1925(b) order and did not file any statement of errors complained of on

appeal, Appellant has waived all issues in this appeal.

3 Where the appellant is represented by counsel in a criminal case, such failure constitutes per se ineffective assistance of counsel and the remedy is remand for counsel to file a statement of errors complained of on appeal nunc pro tunc. Pa.R.A.P. 1925(c)(3); Parrish, 224 A.3d at 692, 702. That remedy, however, does not apply here, as Appellant was proceeding pro se when he filed this appeal and when the Rule 1925(b) order was issued and the failure to file a statement of errors therefore cannot constitute ineffective assistance of counsel.

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Even if Appellant were not barred by waiver, his appeal would fail on the

merits. Where, as here, the defendant pleads guilty pursuant to agreement

under which he receives a negotiated sentence, he gives up all claims and

defenses with respect to his conviction and sentence except for challenges

concerning the jurisdiction of the court, the validity of the plea, and the legality

of his sentence. Commonwealth v. Eisenberg, 98 A.3d 1268, 1275 (Pa.

2014); Commonwealth v. Jabbie, 200 A.3d 500, 505 (Pa. Super. 2018);

Commonwealth v. Reid, 117 A.3d 777, 786 n.22 (Pa. Super. 2015).

Ineffective assistance of counsel prior to or at the time of the plea can be a

basis for PCRA relief only if the ineffectiveness caused the defendant to enter

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

1274, 1281 (Pa. Super. 2017); Commonwealth v. Wah, 42 A.3d 335, 338

(Pa. Super. 2012); Commonwealth v. Allen, 833 A.2d 800, 802 (Pa. Super.

2003). Appellant asserts no claim that the trial court lacked jurisdiction or

that his sentence is an illegal sentence and the record in this case establishes

that Appellant’s guilty plea was voluntary and knowing.

To establish that a guilty plea is voluntary and knowing, the plea

colloquy must ascertain the factual basis for the plea and that the defendant

understands the nature of the charges to which he is pleading guilty, his right

to a jury trial, the presumption of innocence, the sentencing ranges for the

charges, and the plea court’s power to deviate from any recommended

sentence. Commonwealth v. Flanagan, 854 A.2d 489, 500 & n.8, 504 (Pa.

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2004); Jabbie, 200 A.3d at 506; Reid, 117 A.3d at 782; Commonwealth v.

Morrison, 878 A.2d 102, 107 (Pa. Super. 2005) (en banc); Comment to

Pa.R.Crim.P. 590(A)(2). These matters may also be shown by a written plea

colloquy read and signed by the defendant and made part of the record when

supplemented by an oral, on-the-record examination. Reid, 117 A.3d at 782;

Morrison, 878 A.2d at 108-09; Comment to Pa.R.Crim.P. 590(A)(2).

All of these requirements were satisfied here. Appellant was

represented by counsel in the plea negotiations and at the plea hearing. N.T.

Guilty Plea and Sentencing at 3, 5-6. At the plea hearing, the trial court

ascertained the factual basis for the charges to which Appellant was pleading

guilty and explained to Appellant the nature and sentencing ranges of those

charges and what facts the Commonwealth would have to prove. Id. at 5-8.

Appellant confirmed that he understood and that he wanted to plead guilty

because he was guilty. Id. at 8-9. The written plea colloquy signed by

Appellant explained his right to a jury trial, the presumption of innocence, the

sentencing ranges for the charges against him, and the trial court’s power to

deviate from any recommended sentence, and the trial court confirmed at the

hearing that Appellant understood this information. Guilty Plea Petition ¶¶4-

8; N.T. Guilty Plea and Sentencing at 6. In addition, Appellant agreed in the

written plea colloquy that he understood that by pleading guilty, he was giving

up all rights to challenge the trial court’s denial of his motion to suppress.

Guilty Plea Petition ¶¶18-19. Appellant unequivocally stated at the plea

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hearing that he was satisfied with his counsel’s representation. N.T. Guilty

Plea and Sentencing at 9.

The only deficiency that Appellant asserts with respect to his guilty plea

is a claim that it was induced by an alleged threat that he would receive a 10-

to-20-year sentence if he did not accept the Commonwealth’s plea offer.

Appellant’s Brief at 8-9, 16-17. That contention cannot make Appellant’s

guilty plea involuntary or unknowing because it is contrary to his sworn

representations when he entered the plea. At the plea hearing, Appellant

specifically denied under oath that anyone had threatened him or that anyone

had promised him anything other than the four-to-eight-year sentence that

was part of the plea bargain. N.T. Guilty Plea and Sentencing at 5, 9. A

defendant is bound by the statements which he makes during his plea colloquy

and cannot assert challenges to his plea that contradict his statements when

he entered the plea. Jabbie, 200 A.3d at 506; Orlando, 156 A.3d at 1281;

Commonwealth v. Muhammad, 794 A.2d 378, 384 (Pa. Super. 2002).

Because the record establishes that Appellant’s guilty plea was voluntary

and knowing, all of his PCRA claims are without merit. The trial court therefore

did not err in dismissing Appellant’s PCRA petition without a hearing.

For the foregoing reasons, we conclude that Appellant’s failure to file a

Rule 1925(b) statement waived all issues in this appeal and that even if there

were no waiver, the trial court did not err in dismissing Appellant’s PCRA

petition. Accordingly, we affirm the trial court.

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Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 04/11/2022

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