Com. v. Gillespie, O.

• Court: Superior Court of Pennsylvania
• Decided: November 2, 2023
• Docket: 2729 EDA 2022
• Status: Unpublished

Opinion

J-S26035-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : OMAR A. GILLESPIE : : Appellant : No. 2729 EDA 2022

Appeal from the PCRA Order Entered October 20, 2022 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0007507-2017

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : OMAR A. GILLESPIE : : Appellant : No. 2730 EDA 2022

Appeal from the PCRA Order Entered October 20, 2022 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0007532-2017

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : OMAR A. GILLESPIE : : Appellant : No. 2731 EDA 2022

Appeal from the PCRA Order Entered October 20, 2022 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0007533-2017

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA J-S26035-23

: v. : : : OMAR A. GILLESPIE : : Appellant : No. 2732 EDA 2022

Appeal from the PCRA Order Entered October 20, 2022 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0007537-2017

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : OMAR A. GILLESPIE : : Appellant : No. 2733 EDA 2022

Appeal from the PCRA Order Entered October 20, 2022 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0007535-2017

BEFORE: STABILE, J., KUNSELMAN, J., and McLAUGHLIN, J.

MEMORANDUM BY McLAUGHLIN, J.: FILED NOVEMBER 02, 2023

Omar A. Gillespie appeals from the order denying his Post Conviction

Relief Act (“PCRA”) petition. See 42 Pa.C.S.A. §§ 9541-9546. Gillespie

maintains that he is entitled to relief due to ineffectiveness of counsel. We

affirm.

In October 2019, Gillespie entered a negotiated guilty plea to possession

of a firearm prohibited, criminal conspiracy, and sale or transfer of firearms.1

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1 18 Pa.C.S.A. §§ 6105, 903, and 6111, respectively.

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The court sentenced Gillespie to five to 15 years’ incarceration followed by 10

years of probation. Gillespie did not file a direct appeal.

Gillespie filed a timely pro se PCRA petition on October 19, 2020. The

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

issued a Rule 907 notice of intent to dismiss the petition without a hearing.

See Pa.R.Crim.P. 907(1). The PCRA court subsequently dismissed Gillespie’s

petition on October 20, 2022. This appeal followed.

Gillespie raises the following issues:

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

A. Whether [t]rial [c]ounsel’s assistance was ineffective for causing [Gillespie] to enter an involuntary or unknowing guilty plea.

2. Whether the court erred in denying [Gillespie’s] PCRA petition without an evidentiary hearing on the issues raised in the amended PCRA regarding trial counsel’s ineffectiveness.

Gillespie’s Br. at 7.

On appeal from the denial or grant of relief under the PCRA, our review

is limited to determining “whether the PCRA court’s ruling is supported by the

record and free of legal error.” Commonwealth v. Presley, 193 A.3d 436,

442 (Pa.Super. 2018) (citation omitted).

Gillespie argues that his trial counsel was ineffective for causing him to

enter an unknowing plea. Gillespie’s Br. at 13. He maintains that counsel

misled him into believing that as a condition of pleading guilty, his sentence

would run concurrently to a parole violation that he was serving from an

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alternate disposition. Id. Gillespie contends that counsel should have informed

him that his sentence would instead run consecutively to his parole violation

pursuant to 61 Pa.C.S.A. § 6138.2 Id. at 14. He claims that “his counsel g[a]ve

him erroneous advice, directly or by omission, and promised that if [he] pled

guilty, [the sentencing court] would run his parole violation concurrent to any

new sentence imposed.” Id. According to Gillespie, he would not have chosen

to accept the negotiated plea deal had he known this information. Id. at 15.

“[C]ounsel is presumed to be effective and the burden of demonstrating

ineffectiveness rests on appellant.” Commonwealth v. Rivera, 10 A.3d

1276, 1279 (Pa.Super. 2010). To obtain relief based on a claim of

ineffectiveness, a petitioner must establish: “(1) his underlying claim is of

arguable merit; (2) counsel had no reasonable basis for his action or inaction;

and (3) the petitioner suffered actual prejudice as a result.” Commonwealth

v. Spotz, 84 A.3d 294, 311 (Pa. 2014). Prejudice in this context means that, ____________________________________________

2 Section 6138 provides, in relevant part:

If a new sentence is imposed on the offender, the service of the balance of the term originally imposed by a Pennsylvania court shall precede the commencement of the new term imposed in the following cases:

(i) If a person is paroled from a State correctional institution and the new sentence imposed on the person is to be served in the State correctional institution.

61 Pa.C.S.A. § 6138(a)(5)(i); see also Commonwealth v. Kelly, 136 A.3d 1007, 1013 (Pa.Super. 2016) (explaining that under section 6138(a)(5)(i), “where a state parolee gets a new state sentence, he must serve his backtime first before commencement of the new state sentence”).

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“absent counsel’s conduct, there is a reasonable probability the outcome of

the proceedings would have been different.” Commonwealth v. Velazquez,

216 A.3d 1146, 1149 (Pa.Super. 2019) (citation omitted). A failure to meet

any of these prongs bars a petitioner from obtaining relief. Commonwealth

v. Sneed, 45 A.3d 1096, 1106 (Pa. 2012).

“[C]laims of counsel’s ineffectiveness in connection with a guilty plea

will provide a basis for relief only if the ineffectiveness caused an involuntary

or unknowing plea.” Commonwealth v. Yager, 685 A.2d 1000, 1004

(Pa.Super. 1996) (en banc). The “voluntariness of [the] plea depends on

whether counsel’s advice was within the range of competence demanded of

attorneys in criminal cases.” Commonwealth v. Lynch, 820 A.2d 728, 733

(Pa.Super. 2003) (quoting Commonwealth v. Hickman, 799 A.2d 136, 141

(Pa.Super. 2002)). “The law does not require that appellant be pleased with

the outcome of his decision to enter a plea of guilty[.]” Commonwealth v.

Diaz, 913 A.2d 871, 873 (Pa.Super. 2006) (citation omitted). “All that is

required is that [appellant’s] decision to plead guilty be knowingly, voluntarily

and intelligently made.” Yager, 685 A.2d at 1004 (citation omitted)

(alteration in Yager). Further, a defendant who elects to plead guilty is

required to answer all questions during the plea colloquy truthfully and may

not later assert grounds for withdrawing the plea that contradict the

defendant’s statements during the colloquy. Commonwealth v. Pollard, 832

A.2d 517, 523 (Pa.Super. 2003).

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At the conclusion of Gillespie’s plea hearing, the following exchange

occurred:

[DEFENSE COUNSEL]: Your Honor, may I request upon this court that if the court sees appropriate this sentence run concurrent to any parole violation he may have?

THE COURT: Parole violation?

[DEFENSE COUNSEL]: Correct.

THE COURT: I don’t have jurisdiction over that.

[DEFENSE COUNSEL]: That’s what I explained but [Gillespie] asked me to request of this court if it is at all in your power to --

THE COURT: It’s not.

[DEFENSE COUNSEL]: Thank you.

N.T., 10/22/19, at 22. Counsel then restated the court’s sentence to Gillespie,

and Gillespie indicated that he understood the sentence. Id. at 22-23.

The record belies Gillespie’s claim that he was unaware that his sentence

would not run concurrently to his parole violation. The sentencing court

informed Gillespie at his plea hearing that it did not have jurisdiction over his

parole violation and did not have the power to make his instant sentence

concurrent with his parole violation sentence. Moreover, Gillespie’s counsel

explicitly stated on the record that he had already informed Gillespie that his

new sentence could not be served concurrently with his parole violation.

Gillespie indicated that he was satisfied with his counsel3 and voiced no

objection or misunderstanding as to his sentence. Further, Gillespie willingly ____________________________________________

3 See N.T. at 7.

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signed the written guilty plea colloquy,4 which plainly states: “The sentence

on this guilty plea may not run concurrent to (at the same time as) a state

(back time) sentence for a parole violation.” Written Guilty Plea Colloquy,

10/22/19, at 3. Thus, since the record indicates that Gillespie’s guilty plea was

made knowingly, his ineffectiveness claim lacks arguable merit.

Gillespie next argues that the PCRA court erred in failing to hold an

evidentiary hearing. Gillespie’s Br. at 16. He contends that he raised a genuine

issue of material fact that he was told that his sentence would be concurrent

to his parole violation. Id.

We review the denial of a request for an evidentiary hearing for abuse

of discretion. Commonwealth v. Mason, 130 A.3d 601, 617 (Pa. 2015). A

PCRA hearing is not a matter of right, and the PCRA court may decline to hold

a hearing if there is no genuine issue of any material fact and the petitioner is

not entitled to relief as a matter of law. See Pa.R.Crim.P. 907(2);

Commonwealth v. Morrison, 878 A.2d 102, 109 (Pa.Super. 2005) (en

banc).

Here, the record supports the PCRA court’s findings that there were no

genuine issues of material fact, and that no post-conviction relief was due to

Gillespie. Therefore, we discern no abuse of discretion in the PCRA court’s

decision to deny Gillespie’s petition without an evidentiary hearing.

Order affirmed.

4 See N.T. at 3-4.

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Date: 11/2/2023

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