Com. v. Ford, B.

• Court: Superior Court of Pennsylvania
• Decided: March 25, 2021
• Docket: 549 EDA 2020
• Status: Unpublished

Opinion

J-S02008-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : BERNARD FORD : : Appellant : No. 549 EDA 2020

Appeal from the PCRA Order Entered January 14, 2020 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0002505-2014

BEFORE: BENDER, P.J.E., KUNSELMAN, J., and NICHOLS, J.

MEMORANDUM BY BENDER, P.J.E.: Filed: March 25, 2021

Appellant, Bernard Ford, appeals pro se from the post-conviction court’s

January 14, 2020 order denying his timely-filed petition under the Post

Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.

The PCRA court summarized the facts and procedural history of

Appellant’s case in its Pa.R.A.P. 1925(a) opinion, which we adopt herein. See

PCRA Court Opinion (PCO), 8/31/20, at 1-4. We only note that Appellant pled

guilty to third-degree murder and criminal conspiracy on November 3, 2015.

He was sentenced to an aggregate term of 25 to 50 years’ incarceration, and

we affirmed his judgment of sentence on direct appeal. See Commonwealth

v. Ford, 183 A.3d 1073 (Pa. Super. 2018) (unpublished memorandum).

On April 13, 2018, Appellant filed a timely, pro se PCRA petition.

Counsel was appointed, and filed a motion to withdraw and ‘no-merit’ letter

pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and J-S02008-21

Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). On

December 10, 2019, the court issued a Pa.R.Crim.P. 907 notice of its intent

to dismiss Appellant’s petition without a hearing. Appellant filed a pro se

response, but on January 14, 2020, the court issued an order dismissing his

petition and granting counsel’s motion to withdraw. Appellant filed a timely,

pro se notice of appeal. The court did not order him to file a Pa.R.A.P. 1925(b)

concise statement of errors complained of on appeal, but it issued a Rule

1925(a) opinion on August 21, 2020.

Appellant states one issue for our review: “Whether trial counsel was

ineffective by failing to investigate whether Appellant was competent to plead

[guilty]?” Appellant’s Brief at 3.

Our standard of review regarding an order denying post-conviction relief

under the PCRA is whether the determination of the court is supported by the

evidence of record and is free of legal error. Commonwealth v. Ragan, 923

A.2d 1169, 1170 (Pa. 2007). This Court grants great deference to the findings

of the PCRA court, and we will not disturb those findings merely because the

record could support a contrary holding. Commonwealth v. Touw, 781 A.2d

1250, 1252 (Pa. Super. 2001).

Here, Appellant claims that his counsel was ineffective for failing to

ensure that he was competent to enter his guilty plea. According to Appellant,

he admitted at the plea proceeding that he had not taken medications

prescribed for his various mental health conditions on the night before the

plea hearing, yet his attorney failed to investigate whether Appellant was

-2- J-S02008-21

competent to enter the plea. He insists that, had counsel conducted such an

investigation, he would have discovered that Appellant was not entering his

plea knowingly, intelligently, and/or voluntarily. Consequently, he claims that

counsel rendered ineffective representation.

In assessing Appellant’s argument, we have reviewed the certified

record, the briefs of the parties, and the applicable law. Additionally, we have

considered the thorough opinion of the Honorable Genece Brinkley of the Court

of Common Pleas of Philadelphia County. We conclude that Judge Brinkley’s

opinion accurately disposes of the issue presented by Appellant. See PCO at

4-8.1 Accordingly, we adopt her opinion as our own, and affirm the order

dismissing Appellant’s PCRA petition for the reasons set forth therein.2

Order affirmed.

____________________________________________

1 We note that Judge Brinkley addresses two additional claims in her opinion that Appellant has abandoned on appeal. See PCO at 8-10. We express no opinion on Judge Brinkley’s assessment of those claims.

2 We add that, on direct appeal, Appellant argued that his “plea was entered unknowingly and involuntarily due to the fact that Appellant was suffering from mental health illness at the time he entered his plea[,] and had not taken necessary medication the night before he entered his guilty plea[.]” Commonwealth v. Ford, No. 3692 EDA 2016, unpublished memorandum at 4 (Pa. Super. filed Jan. 19, 2018) (capitalization omitted). This Court adopted the trial court’s opinion, in which it concluded that Appellant’s plea was voluntary and knowing, and that he had failed to demonstrate that his mental health issues prevented him from understanding the consequences or terms of his guilty plea. Id. at 5 (citing Trial Court Opinion, 6/5/17, at 9-21). Given our prior conclusion that Appellant’s plea was voluntary, despite his mental health issues, his ineffectiveness claim lacks arguable merit.

-3- J-S02008-21

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 3/25/21

-4- Circulated 03/03/2021 01:30 ,PM

IN THE COURT OF COMMON PLEAS 11 (Jo .31 t JU•RST JUDCR IMINAL TRIAL DIV ISION YLVANIA ICIAL

COMMONWEALTH CP-51-CR-0002505-2014

VS.

SUPERIOR COURT BERNARD FORD 549 EDA 2020

OPINION I BRINKLEY, J. AUGUST 31, 2020

Defendant Bernard Ford filed his first petition for relief tinder the Past-Conviction Relief

Act (PCRA), 42 Pa.C.S.A. §9541 et sect. (eff. Jan. 16, 1996), claiming; ineffective assistance of

counsel, trial court errors, and an illegal sentence. After reviewing Defendant's pro se petition

and counsel's no-merit letter lpursuant to Commonwealth v. Finley, 550 A,2d 213 (1988), this

Cotu-tdismissed Defendant's petition based upon counsel's Finley letter. Defendant appealed this

dismissal to the Superior Court, This Court's dismissal should be affirmed.

Backizround

On July 14, 2013, Alfred McCrory died as aresult of multiple gunshot wounds to his

head and torso. On November 14, 2013, after alengthy police investigation, Defendant was

arrested and charged with murder and conspiracy. After he was arrested, Defendant told police

'Defendant originally was represented by James A. Lammendola, Esquire, who submitted aFinley letter on October 23, 2018 . Subsequently ,Stephen O'Hanion, Esquire represented Defendant. Mr, O'Hanlon submitted aFinley letter on September 30, 2019, and fully incorporated Mr. Lanvnendola's Finley letter by reference, that lie was present at the scene of the murder, that all of the men involved in the shooting knew

each other because they sold drugs together on that block, and that McCrory had been shot

because he collected "rent" from Defendant and his friends to sell drugs in the neighborhood but

subsequently brought in new people to the block to sell drugs and did not charge them anything.

On November 2, 2015, Defendant, with his counsel David Desiderio, Esquire, entered into a

Memorandum of Agreement to cooperate with the Commonwealth in which he agreed to testify

as aCommonwealth witness against his friends Terrence Johnson and Spencer Hutchins at their

joint juzy trial. He further agreed to plead guilty to third degree murder and conspiracy. In

exchange, the Commonwealth agreed to make asentencing recommendation commensurate with

Defendant's conduct and level of cooperation.

On November 3, 2015, Defendant appeared before this Court and pled guilty to third

degree murder and criminal conspiracy. This Court accepted Defendant's'guilty plea and

deferred sentencing to allow for apresentence investigation report (PSI) and mental health

evaluation.

On November 12, 2015, Defendant appeared before this Court as aCommonwealth

witness in Hutchins' and Johnson's jury trial. Instead of testifying consistent with his statement

to police, Defendant denied knowing McCrory, denied any knowledge of the murder, and denied

entering into any deal with the Commonwealth. He claimed that his attorney, Mr. Desiderio, had

forced him to plead guilty and that he had failed to take any of his medications on the day of his

guilty plea. (N.T. 11/12/15, p. 7-55).

On November 16, 2015, Defendant appeared before this court with new counsel, Perry

DeMarco, Jr. who argued that Defendant should be permitted to withdraw his guilty plea. After

hearing from several witnesses, listening to argument from both counsel, and reviewing the

2 transcript from the guilty plea colloquy, this Court denied Defendant's motion to withdraw his

guilty plea, finding that he knowingly, intelligently, and voluntarily pled guilty, that he was

satisfied with his lawyer's representation at the time of his plea, and that Defendant actively

participated and cooperated with the Commonwealth in preparing for Hutchins' and Johnson's

trial. (N.T. 11/16/15, p. 172-79).

On November 17, 2015, Hutchins' and Johnson's jury trial resumed. Subsequently, the

jury found Hutchins and Johnson not guilty on all charges. On May 3, 2016, newly appointed

defense counsel Jason Kadish, Esquire filed another Petition to Withdraw Guilty Plea. This

Court denied this petition on November 14, 2016.

On that same date, Defendant appeared before this Court for sentencing. This Court

sentenced him to an aggregate term of 25 to 50 years state incarceration. On December 5, 2016,

Defendant filed aNotice of Appeal to Superior Court, The Superior Court affirmed his judgment

of sentence on January 19, 2018.

On April 13, 2018, Defendant filed apro se PCRA petition. On July 27, 2018, James A.

Lammendola, Esquire was appointed as PCRA counsel. On October 23, 2018, he filed ano-merit

letter pursuant to Finley and amotion to withdraw as counsel. Mr. Lammendola was relieved as

counsel on April 23, 2019, On July 17, 2019, Matthew Sullivan, Esquire was appointed as new

counsel. He withdrew as counsel on September 12, 2019. On that same date, Stephen O'Hanlon,

Esquire was appointed as PCRA counsel. On September 30, 2019, Mr. O'Hanlon filed aFinley

letter. On December 10, 2019, this Court sent Defendant aNotice of Intent to Dismiss Pursuant

to Rule 907. On December 24, 2019, Defendant replied to the 907 notice. On January 15, 2020,

this Court dismissed Defendant's petition based upon counsel's Finley letter. On February 4,

2020, Defendant filed aNotice of Appeal to Superior Court.

3 Discussion

This Court properly dismissed Defendant's petition based upon counsel's Finley letter.

When reviewing the denial of PCRA relief, the appellate court's review is limited to determining

whether the PCRA court's findings are supported by the record and without legal error.

Commonwealth v. Edmiston, 65 A.3d 339, 619 Pa. 549, 558 (2013) (citing Commonwealth v.

Breakiron, 566 Pa. 323, 781 A.2d 94, 97 n. 4(2001)). The appellate court's scope of review is

limited to the findings of the PCRA court and the evidence on the record of the PCRA court's

hearing, viewed in light most favorable to the prevailing party. Commonwealth v. Fahy, 598 Pa.

584, 959 A.2d 312, 316 (2008) (citing Commonwealth v. Duffey, 585 Pa. 493, 889 A.2d 56, 61

(2005)). The burden is on the petitioner in the PCRA petition to demonstrate by apreponderance

of the evidence that he or she is eligible for PCRA relief. 42 Pa.C.S.A §9543.

First, Defendant claims that trial counsel was ineffective for allowing him to plead guilty

when he was not competent to do so. This claim is wholly without merit. To prevail on aclaim

alleging counsel's ineffectiveness under the PCRA, apetitioner must demonstrate (1) that the

underlying claim is of arguable merit; (2) that counsel's course of conduct was without a

reasonable basis; and (3) that he was prejudiced by counsel's ineffectiveness, i.e, there is a

reasonable probability that but for the acfior othission in question the outcome of the proceedings

would have been different. Commonwealth v. Timchak, 2013 PA Super 157, 69 A.3d 765, 769

(2013) (citing Commonwealth v. Wah, 42 A.3d 335, 338 (Pa. Super. 2012)). A petitioner will be

granted relief only when he proves, by apreponderance of the evidence, that his conviction or

sentence resulted from the 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. Id. (citing 42 Pa.C.S. §9543(a)(2)(ii)). Counsel's assistance

4 is deemed constitutionally effective once the court determines that the defendant has not

established any one of the prongs of the ineffectiveness test. Id. (citing Commonwealth V. Rolan,

964 A.2d 398, 406 (Pa.Super.2008)). To establish prejudice, the defendant must show that there

is areasonable probability that the outcome of the proceedings would have been different but for

counsel's action or inaction. Commonwealth v. Davido, 106 A.3d 611, 621 (Pa. 2014) (citing

Commonwealth v. Williams, 587 Pa. 304, 899 A.2d 1060, 1064 (2006)). When an appellant fails

to meaningfully discuss each of the three ineffectiveness prongs, "he is not entitled to relief, and

we are constrained to find such claims waived for lack of development." Commonwealth v.

Fears, 624 Pa. 446, 461, 86 A.3d 795, 805 (2014) (quoting Commonwealth v. Steele, 599 Pa.

341, 361, 961 A.2d 786, 797 (2008) ("[U]ndeveloped claims, based on boilerplate allegations,

cannot satisfy Appellant's burden of establishing ineffectiveness. ").

"[A]llegations of ineffectiveness in connection with aguilty plea will serve as abasis for

relief only if the ineffectiveness caused the defendant to enter an involuntary or unknowing plea.

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

of criminal cases." Commonwealth v. Willis, 68 A.3d 997, 1002 (Pa.Super,2013)(quoting

Commonwealth v. Wah, 42 A.3d 335, 338 (Pa.Super.2012)). With regard to the voluntariness of

aplea, aguilty plea colloquy must "affirmatively demonstrate the defendant understood what the

plea connoted and its consequences." Willis, 68 A.3d at 1002 (quoting Commonwealth v. Lewis,

708 A.2d 497, 501 (Pa. Super. 1998)), Once the defendant has entered aguilty plea, "it is

presumed that he was aware of what he was doing, and the burden of proving involuntariness is

upon him." Willis, 68 A.3d at 1002 (quoting Commonwealth v. Bedell, 954 A.2d 1209, 1212

(Pa.Super.2008)). "Competence to plead guilty requires afinding that the defendant

5 comprehends the crime for which he stands accused, is able to cooperate with his counsel in

forming arational defense, and has arational and factual understanding of the proceedings

against him." Willis, 68 A.3d at 1002, (citing Commonwealth v. Turetsky, 925 A.2d 876

(Pa.Super.2007)),

Defendant claims that his attorney, Mr. Desiderio, was ineffective because he allowed

Defendant plead guilty when he allegedly was not competent to do so. This claim is without

merit. The record shows that Defendant knowingly, intelligently, and voluntarily decided to

plead guilty after entering into aMemorandum of Agreement with the Commonwealth. At the

guilty plea hearing on November 3, 2015, Defendant reviewed the written guilty plea colloquy

with his attorney and signed it. This Court then conducted an extremely thorough and detailed

on-the-record colloquy that included specific questions regarding Defendant's mental health and

the medications he was taking. In the Opinion filed in connection with Defendant's direct appeal,

this Court extensively reviewed the record and found Defendant was competent to plead guilty:

THE COURT: Have you ever been apatient in amental institution or been treated for mental illness? DEFENDANT: Yes. THE COURT: And when was that? DEFENDANT: Idon't know. THE COURT: You don't know? DEFENDANT: Iwasn't in amental hospital but Igot mental health problems. THE COURT: Okay. What is the nature of your mental health problems? DEFENDANT: My mom said —my mom know better. MR. DESIDERIO: Iwas informed, by — THE COURT: Okay. Just one minute. The trial sheet -- the trial list says ADHD, schizophrenia, and depression with special considerations. So you reported this to someone else already, right? DEFENDANT: Yes. THE COURT: This is on your sheet. DEFENDANT: Yes. THE COURT: This is on your sheet. Everybody has it. DEFENDANT: Yes. THE COURT: So what's written on the sheet says other —special considerations, other, ADHD, schizophrenia, and depression.

6 DEFENDANT: Yes. THE COURT: Can you tell me, is it all three of these or -- DEFENDANT: All three. THE COURT: And when did you -- when were you first diagnosed with these conditions. DEFENDANT: I'm not sure. THE COURT: You're not sure. How old —you're 25 now. So how marry years have you had these conditions? DEFENDANT: Since Iwas 1I. THE COURT: Since you were 11. Are you taking medication? DEFENDANT: Yes. THE COURT: What medication are you taking? DEFENDNAT: Zyprexin and Benadryl. THE COURT: How often do you take it? DEFENDANT: Every night. THE COURT: Okay. So you took it last night? DEFENDANT: No, Iwas down in Homicide. THE COURT: Okay. So when's the last time you took your medication? DEFENDANT: The day before. THE COURT: The night before? DEFENDANT: Yeah. THE COURT: And when you take your medication, what does it do for you? DEFENDANT: Mellow, calm. THE COURT: Okay. Do you understand why you're here today? DEFNEDANT: Yes. THE COURT: Why are you here today? DEFENDANT: Enter aguilty plea. THE COURT: And to what charge? DEFENDANT: Third degree. THE COURT: All right, sir. And so, basically what you're saying is that right now you understand what you're doing? DEFENDANT: Yes. THE COURT: And you've had aconversation with your lawyer about it? DEFENDANT: Yes. THE COURT: And with your mental health issues you are —you still understand and your medications are working for you? DEFENDANT: Yes. THE COURT: So right now you understand everything that's been said and done so far today? DEFENDANT: Yes. THE COURT: And right now there are no mental health conditions that would prevent you from continuing with this plea? DEFENDANT: No. THE COURT: Okay. And are you satisfied with the representation of your lawyer up to this point? DEFENDANT: Yes.

7 (N.T. 11/3/15, p. 5-9) (emphasis added). Defendant has failed to meet his burden as proof as he has failed to provide any evidence that did not know what he was doing. The record is clear that Defendant understood the nature of the charges against him; therefore, the voluntariness of the plea has been established. There is nothing in the record that indicates that Defendant was confused, disoriented, incoherent or in any way disconnected from reality. To the contrary, Defendant appropriately engaged with the Court, answered questions in alucid, coherent manner, and informed the Court that he was present to plead guilty to third degree murder. As stated above, adefendant is bound by the statements he makes during his guilty plea colloquy and may not assert grounds for withdrawing the plea that contradict statements that he made. McCauley, supra. 2 There is no requirement that Defendant be pleased with the outcome of his decision to plead guilty, "[a]Il that is required is that [his] decision to plead guilty be knowingly, voluntarily and intelligently made." Reid, supra.'

(Trial Court Opinion, 6/5/17, p. 15-18). As stated above, "allegations of ineffectiveness in

connection with aguilty plea will serve as abasis for relief only if the ineffectiveness caused the

defendant to enter an involuntary or unknowing plea." Here, the record is clear that Defendant

voluntarily and knowingly entered into his guilty plea. Thus, counsel cannot be found ineffective

and no relief is due.

Next, Defendant claims that this Court erred when it did not permit him to withdraw his

guilty plea. This claim should be deemed previously litigated. For purposes of the PCRA, aclaim

has been previously litigated ifthe highest appellate court in which the petitioner could have had

review as amatter of right has ruled on the merits of the issue. 42 Pa.C.S. §9544(a)(2). On direct

appeal, Defendant raised the following issue: whether the trial court abused its discretion when it

denied Defendant's motion to withdraw his guilty plea. The Superior Court already reviewed this

issue and affirmed this Court's decision to deny Defendant's motion; Defendant did not seek

petition for review before the Pennsylvania Supreme Court. Since the highest appellate court in

zCominonwealth v. McCauley, 797 A.2d 910 (Pa.Super,200I). Coininonwealth v. Reid, 117 A.3d 777, 783 (2015).

8 which he could have had review has ruled on the merits of this issue already, this claim should

be deemed previously litigated.'

Last, Defendant claims that his sentence exceeded the statutory maximum. This claim is

meritless. This Court sentenced Defendant to 20 to 40 years state incarceration on the third

degree murder conviction and 5to 10 years state incarceration on the criminal conspiracy charge,

to run consecutively to one another. The statutory maximum sentence for third degree murder is

40 years state incarceration. See 18 Pa.C.S. §1102(d). The maximum sentence for criminal

conspiracy to commit murder is also 40 years state incarceration. See 18 Pa.C.S. §1102(c).

Neither of the sentences imposed by this Court exceeded the statutory maximum term of 40

years incarceration. Thus, no relief is due.

4He further claims that this Court lacked jurisdiction to preside over his case. This claim is without merit. See 18 Pa.C.S. §102(a)(1) ("Except as otherwise provided in this section, aperson may be convicted under the law of this Commonwealth of an offense committed by his own conduct or the conduct of another for which he is legally accountable if []: (1) the conduct which is an element of the offense or the result which is such an element occurs within this Commonwealth. ").

9 CONCLUSION

After reviewing the applicable case law, statutes, and testimony, this Court committed no

error. This Court properly dismissed Defendant's petition based upon counsel's Finley letter.

Accordingly, no relief is due.

BY THE COURT:

f J.