Com. v. Elrod, E.

• Court: Superior Court of Pennsylvania
• Decided: November 29, 2021
• Docket: 1949 EDA 2020
• Status: Unpublished

Opinion

J-S33006-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : ERIC ELROD : : Appellant : No. 1949 EDA 2020

Appeal from the PCRA Order Entered October 2, 2020 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0000057-2011

BEFORE: BOWES, J., NICHOLS, J., and McLAUGHLIN, J.

MEMORANDUM BY BOWES, J.: FILED NOVEMBER 29, 2021

Eric Elrod challenges the order dismissing his petition filed pursuant to

the Post Conviction Relief Act (“PCRA”). We affirm.

The underlying factual and procedural history of this case was aptly

summarized by a prior panel of this Court in an unpublished memorandum

adjudicating Appellant’s direct appeal. See Commonwealth v. Elrod, 121

A.3d 1122 (Pa.Super. 2015) (unpublished memorandum at 1-2). On February

12, 2014, Appellant entered a negotiated nolo contendere plea to one count

each of indecent assault of a person less than 13 years of age and corruption

of minors in exchange for a sentence of one and one-half to three years of

incarceration for corruption of minors. After a hearing, Appellant was found

to be a sexually violent predator, requiring him to register for his lifetime

under the Sex Offender Registration and Notification Act (“SORNA”). The

court then sentenced Appellant to a consecutive term of seven years of J-S33006-21

probation for indecent assault. On appeal, this Court affirmed Appellant’s

judgment of sentence.

Appellant timely filed pro se a PCRA petition alleging ineffective

assistance of plea counsel. While that petition was pending, Appellant’s

probation was revoked following a violation of probation (“VOP”) hearing, and

he was resentenced to seven years of probation for indecent assault, followed

by six to twenty-three months of incarceration for corruption of minors.

Thereafter, Appellant filed a subsequent PCRA petition alleging ineffective

assistance of VOP counsel for failing to file an appeal challenging the legality

of his new corruption of minors sentence since he had already completed

serving that sentence at the time of the VOP hearing. The PCRA court

appointed counsel to represent Appellant in his PCRA proceedings. PCRA

counsel filed an amended PCRA petition, alleging ineffective assistance of plea

counsel and VOP counsel, and challenging the legality of Appellant’s SORNA

registration. The Commonwealth filed a motion to dismiss in response, but

did not oppose a hearing on Appellant’s ineffective assistance of VOP counsel

claim.

On October 2, 2020, the PCRA court heard the arguments of counsel

and granted in part and dismissed in part Appellant’s PCRA petition. Since the

PCRA court found VOP counsel ineffective for failing to file a requested appeal,

the court vacated Appellant’s VOP sentence and resentenced him to seven

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years of probation for indecent assault.1 The PCRA court dismissed Appellant’s

ineffective assistance of plea counsel and SORNA claims. This timely appeal

followed. Both Appellant and the PCRA court complied with Pa.R.A.P. 1925.

Appellant presents the following question for our review:

1. Whether the court erred in not granting relief on the PCRA petition alleging counsel was ineffective.

a. Whether the court erred in denying the Appellant’s PCRA petition without an evidentiary hearing on the issues raised in the amended PCRA petition regarding trial counsel’s ineffectiveness.

b. Whether Trial Counsel’s assistance was ineffective for causing the Appellant to enter an involuntary or unknowing guilty plea.

Appellant’s brief at 7 (PCRA court answers omitted).

Stated plainly, Appellant challenges the PCRA court’s dismissal of his

ineffective assistance of plea counsel claim without a hearing. We begin with

a review of the pertinent legal principles. “An appellant’s claim

for ineffective assistance of counsel in connection with advice rendered

regarding whether to plead guilty is cognizable under the PCRA pursuant to 42

Pa.C.S. § 9543(a)(2)(ii).” Commonwealth v. Lippert, 85 A.3d 1095, 1100

(Pa.Super. 2014) (cleaned up).2 “The standard of review of an order

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1 Since Appellant had already completed serving his corruption of minors sentence at the time of the VOP hearing, the PCRA court did not impose a new sentence on that conviction. 2 “In terms of its effect upon a case, a plea of nolo contendere is treated the

same as a guilty plea.” Commonwealth v. Lewis, 791 A.2d 1227, 1230 (Pa.Super. 2002) (citation omitted).

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dismissing a PCRA petition is whether that determination is supported by the

evidence of record and is free of legal error.” Commonwealth v. Cruz, 223

A.3d 274, 277 (Pa.Super. 2019) (cleaned up). “[A] PCRA court has discretion

to dismiss a PCRA petition without a hearing if the court is satisfied that there

are no genuine issues concerning any material fact; that the defendant is not

entitled to post-conviction collateral relief; and that no legitimate purpose

would be served by further proceedings.” Id. (internal quotation marks

omitted). Additionally, “[i]t is an appellant’s burden to persuade us that

the PCRA court erred and that relief is due.” Commonwealth v. Stansbury,

219 A.3d 157, 161 (Pa.Super. 2019) (internal quotation marks omitted).

Appellant’s claim challenges the performance of plea counsel.

Accordingly, we observe that counsel is presumed to be effective, and

a PCRA petitioner bears the burden of proving otherwise. Commonwealth

v. Becker, 192 A.3d 106, 112 (Pa.Super. 2018). To do so, the petitioner

must plead and prove: “(1) the underlying legal claim is of arguable merit;

(2) counsel’s action or inaction lacked any objectively reasonable basis

designed to effectuate his client’s interest; and (3) prejudice, to the effect that

there was a reasonable probability of a different outcome at trial if not for

counsel’s error.” Commonwealth v. Selenski, 228 A.3d 8, 15 (Pa.Super.

2020) (internal quotation marks omitted). “A failure to satisfy any prong of

the ineffectiveness test requires rejection of the claim of ineffectiveness.” Id.

(cleaned up). “In the context of a plea, a claim of ineffectiveness may provide

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relief only if the alleged ineffectiveness caused an involuntary or unknowing

plea.” Commonwealth v. Orlando, 156 A.3d 1274, 1281 (Pa.Super. 2017).

Where the defendant enters his plea on the advice of counsel, the voluntariness of the plea depends on whether counsel’s advice was within the range of competence demanded of attorneys in criminal cases.

Thus, to establish prejudice, the 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. The reasonable probability test is not a stringent one; it merely refers to a probability sufficient to undermine confidence in the outcome.

Lippert, supra at 1100 (cleaned up).

In his amended PCRA petition, Appellant asserts three bases for plea

counsel’s ineffectiveness, which caused an involuntary plea: (1) plea counsel

led Appellant to believe that she had a defense until jury selection, when she

suddenly told him that she did not; (2) plea counsel had a conflict of interest

because she had previously represented an officer involved in Appellant’s

case; and (3) plea counsel was in possession of Appellant’s polygraph test

results. Amended PCRA Petition, 3/7/18, at 12. Appellant then baldly claimed

that these “coercive actions played a large role in the unlawful inducement of

[Appellant’s] plea[,]” lacked any “reasonable basis to justify any type of

inducement or coercive nature on the part of [plea] counsel[,]” and evinced

“a clear showing of actual prejudice as a result of the counsel’s

ineffectiveness.” Id. at 12-13. Appellant raises the same arguments on

appeal, and further argues that the PCRA court erred in dismissing this claim

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without a hearing because “Appellant raised a genuine issue of material fact

that he was coerced into entering a guilty plea.” Appellant’s brief at 16.

In dismissing this claim without a hearing, the PCRA court noted that

Appellant signed a written plea colloquy and engaged in an extensive oral

colloquy, wherein he acknowledged that it was his decision to plea nolo

contendere and that he was satisfied with plea counsel’s representation. PCRA

Court Opinion, 3/23/21, at 4. Contrary to Appellant’s assertion in his PCRA

petition that his plea was based on counsel’s coercion, the PCRA court noted

that at the time of his sentencing, Appellant indicated that he based his

decision to plead, at least in part, on his mother’s health. Id. at 5. As to the

conflict of interest, the PCRA court observed that Appellant raised this issue

at his sentencing hearing and counsel explained that no conflict existed from

having previously represented the son of one of the detectives involved in

Appellant’s case. Id. at 5-6. Finally, the PCRA court found Appellant’s

argument regarding his polygraph test results without merit because any such

evidence would have been inadmissible at trial. Id. at 6-7.

It is a general principle of law in this Commonwealth that, when a

defendant makes statements at a plea colloquy, the defendant is bound by

those statements. Commonwealth v. Timchak, 69 A.3d 765, 774

(Pa.Super. 2013). At his plea hearing, Appellant represented that he

completed the written colloquy, understood the proceedings and the

consequences of pleading nolo contendere, was satisfied with plea counsel’s

representation, and was not promised anything or forced or threatened to

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enter the plea. At his sentencing hearing, Appellant provided the following

argument, essentially alleging the same bases for ineffective assistance of

plea counsel that he raised in his PCRA petition.

[T]he first reason for my plea of [nolo contendere] is my mother is sick, which my lawyer. . . seemed not to take into consideration. The second is I am no fool, Your Honor. And [plea counsel] was not in my corner. She intentionally -- she initially interviewed me, telling me what her defense would be and it seemed sound. As time passed, she kept talking to me about taking deals. Then the day of trial, she said her defense was faulty and asked did I have one. I told her all I can do is tell the truth. She replied to take the deal or I would be found guilty.

When I told her no, she tried to get herself recused from this case stating . . . she had represented the very police officer that took my initial statement’s son on the case.

N.T., 5/16/14, at 5-6. Appellant also argued that counsel “hung [him] out to

dry” because when the court initially stated that it would impose a jail

sentence of eleven and one-half to twenty-three months at Appellant’s plea,

counsel corrected the court, clarifying that the agreement had been to one

and one-half to three years. Id. at 7. Appellant informed the court that plea

counsel and the Commonwealth were in possession of Appellant’s polygraph

test results. Id. at 7. Finally, Appellant stated that “without [his] sick mother

in this equation, [he] would have rather taken that chance[ of a higher

sentence], you know, actually going to court, going to trial instead of falling

for something that is unjust.” Id. at 8-9.

The court responded that counsel was obligated to correct the court

when it inadvertently misstated the negotiated sentence and that failure to do

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so would have been a fraud on the court and inappropriate behavior for an

attorney. Id. at 10. As to the conflict of interest, plea counsel explained that

she learned during jury selection that she had previously represented the child

of one of the detectives involved in Appellant’s case. She stated that she

never sought to recuse herself and that this prior representation had no effect

on her representation of Appellant in this case. Id.

We concur with the PCRA court that, after a review of the record, there

is no genuine issue of material fact that Appellant’s plea counsel rendered

ineffective assistance and induced Appellant’s nolo plea. Notably, Appellant

fails to allege what advice plea counsel purportedly gave that induced him to

plead, or on what defense she misled Appellant. Moreover, as the PCRA court

correctly observed, any defense based on Appellant’s polygraph test results

would have been inadmissible at trial and therefore could not have formed the

basis of any trial defense. See Commonwealth v. Watkins, 750 A.2d 308,

315 (Pa.Super. 2000) (cleaned up) (“Due to the unreliable nature of polygraph

tests, the results of such tests that raise inferences of guilt or innocence are

inadmissible at trial. Moreover, any reference to a polygraph test which raises

an inference concerning the guilt or innocence of a defendant is

inadmissible.”). Additionally, Appellant has not presented an issue of material

fact as to whether the purported conflict of interest induced Appellant to plead.

Instead, and rather tellingly, the record evidence establishes that Appellant

represented to the court that he was entering the plea voluntarily, and when

offered the opportunity to do so at his sentencing, Appellant argued that the

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reason he did not go to trial was because of his mother’s health, not because

of any action or inaction on counsel’s part.

As the record supports the PCRA court’s conclusion that there is no

genuine issue of material fact as to the knowing or voluntary nature of

Appellant’s nolo contendere plea, we affirm its denial of that portion of

the PCRA petition without a hearing.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 11/29/2021

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