Com. v. Gregory, R.

• Court: Superior Court of Pennsylvania
• Decided: August 27, 2020
• Docket: 2643 EDA 2019
• Status: Unpublished

Opinion

J-S24028-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

RONALD GREGORY

Appellant No. 2643 EDA 2019

Appeal from the PCRA Order Entered August 9, 2019 In the Court of Common Pleas of Philadelphia County Criminal Division at No: CP-51-CR-0011340-2012

BEFORE: BENDER, P.J.E., STABILE, J., and STRASSBURGER, J.*

MEMORANDUM BY STABILE, J.: Filed: August 27, 2020

Appellant, Ronald Gregory, who was convicted of raping a 78-year-old

female in her home and other crimes, appeals from an order dismissing his

amended petition for relief under the Post Conviction Relief Act (“PCRA”), 42

Pa.C.S.A. §§ 9541-9546. We affirm.

The following facts were adduced during Appellant’s guilty plea hearing.

On July 26, 2012, at approximately 11:00 pm, Appellant, without permission,

entered into the home of 78-year-old M.H., who was sleeping at the time.

Appellant, who did not know M.H., woke her up and brutally raped her,

penetrating her vaginally, anally, and orally. N.T. 12/02/13, pp. 9-10.

Appellant stole M.H.’s television and a fanny pack that contained her rent

money. Id. M.H. identified Appellant at the preliminary hearing and was

____________________________________________

* Retired Senior Judge assigned to the Superior Court. J-S24028-20

prepared to testify at trial. Id. at 13. Another witness observed Appellant

leaving M.H.’s home carrying a television and fanny pack, id. at 11, and

forensic analysis matched Appellant’s DNA to trace evidence of semen

recovered from M.H.’s face. Id. at 10-11.

On December 2, 2013, shortly before trial, Appellant entered an open

plea of no contest to rape, involuntary deviate sexual intercourse, burglary

and robbery.1 Prior to sentencing, Appellant filed a pro se motion to withdraw

his plea. Counsel continued the sentencing hearing several times to discuss

options with Appellant and his family. Ultimately, Appellant withdrew his pro

se motion, and the case proceeded to sentencing. The Commonwealth

recommended a sentence of 40-80 years’ imprisonment, but after hearing

testimony from Appellant, his family, and his girlfriend, the court imposed a

sentence of 18-47 years’ imprisonment.

Appellant filed a motion for reconsideration of sentence, which the court

denied, and a direct appeal, claiming that his sentence was excessively

lengthy. On February 9, 2016, this Court affirmed. Commonwealth v.

Gregory, 1571 EDA 2014, 2016 WL 545815 (Pa. Super., Feb. 9, 2016)

(unpublished memorandum). On July 26, 2016, the Pennsylvania Supreme

Court denied Appellant’s petition for allowance of appeal. Appellant did not

file a petition for certiorari in the United States Supreme Court. Accordingly,

1 18 Pa.C.S.A. §§ 3121(a)(1), 3123 (a)(1), 3701 (a)(1)(ii), and 3502(a)(1), respectively.

-2- J-S24028-20

his judgment of sentence became final on October 24, 2016, 90 days after the

denial of allocatur.

Subsequently, Appellant filed the PCRA petition presently under review.

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

raising claims of guilty plea counsel’s ineffective assistance.

There were two time stamps on Appellant’s original petition: one stating

that it was “filed” on August 14, 2017, and a second stating it was received

on August 14, 2018. The petition included several items of note:

(1) A proposed order for appointment of counsel dated August 6, 2018;

(2) Appellant’s handwritten note that he sent his PCRA petition to his

attorney on August 14, 2017; and

(3) A cash slip for postage dated August 14, 2017.

Based on the cash slip, the PCRA court determined that Appellant “filed, or

certainly attempted to file,” the original petition on August 14, 2017, which

explained why the PCRA clerk stamped the petition “filed” on that date. N.T.

7/1/19, at 4-5. Accordingly, the court found that the original petition was

timely filed.

On July 1, 2019, the PCRA court convened an evidentiary hearing on the

claims in Appellant’s amended PCRA petition. Guilty plea counsel and

Appellant both testified. On August 9, 2019, the PCRA court denied

Appellant’s amended petition. On September 6, 2019, Appellant filed a notice

of appeal to this Court. The PCRA court filed a Pa.R.A.P. 1925 opinion without

ordering Appellant to file a statement of matters complained of on appeal.

-3- J-S24028-20

Appellant raises the following issues in this appeal:

1. Whether the PCRA court erred by dismissing the PCRA petition when clear and convincing evidence [was] presented to establish that [A]ppellant was denied his constitutional right to effective assistance of counsel based on trial counsel’s erroneous advice during plea negotiations regarding the duration of the sentence the court would impose[?]

2. Whether the PCRA court erred by dismissing the PCRA petition when clear and convincing evidence presented to establish that [A]ppellant’s guilty plea was unlawfully induced based on trial counsel’s ineffectiveness[?]

Appellant’s Brief at 8.

Appellate review of a PCRA court’s dismissal of a PCRA petition is limited

to the examination of “whether the PCRA court’s determination is supported

by the record and free of legal error.” Commonwealth v. Maxwell, — A.3d

—, 2020 WL 2079168, *4 (Pa. Super. 2020). “The PCRA court’s findings will

not be disturbed unless there is no support for the findings in the certified

record.” Id. “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.” Id. In contrast, we review the PCRA court’s legal

conclusions de novo. Id.

Before we may address the merits of this appeal, we must determine

whether the PCRA court had jurisdiction to entertain the underlying PCRA

petition. The PCRA requires petitions to be filed “within one year of the date

the judgment becomes final.” 42 Pa.C.S.A. § 9545(b)(1). For purposes of

the PCRA, “a judgment becomes final at the conclusion of direct review,

-4- J-S24028-20

including discretionary review in the Supreme Court of the United States and

the Supreme Court of Pennsylvania, or at the expiration of time for seeking

the review.” 42 Pa.C.S.A. § 9545(b)(3). Section 9545’s timeliness provisions

are jurisdictional. Commonwealth v. Ali, 86 A.3d 173, 177 (Pa. 2014).

Additionally, “the PCRA confers no authority upon this Court to fashion ad hoc

equitable exceptions to the PCRA time-bar in addition to those exceptions

expressly delineated in the Act.” Commonwealth v. Robinson, 837 A.2d

1157, 1161 (Pa. 2003).

Here, Appellant’s judgment of sentence became final on October 24,

2016, so the time for filing a PCRA petition expired on October 24, 2017. The

PCRA court deduced from the cash slip for postage that Appellant mailed his

petition for filing on August 14, 2017. The Commonwealth contends that the

PCRA court is mistaken, pointing to Appellant’s handwritten note in his petition

as evidence that he mailed his petition on August 14, 2017, to his attorney,

not to the PCRA court. The Commonwealth also argues that the proposed

order in Appellant’s petition for appointment of counsel PCRA petition, dated

August 6, 2018, demonstrates that he submitted his petition to prison

authorities in August 2018 instead of August 2017.

Although the Commonwealth’s argument is plausible, the question of

when Appellant filed his original PCRA petition is purely factual. We cannot

override the PCRA court’s factual findings unless there is no support for these

findings in the record. Maxwell, 2020 WL at 2079168, *4. In this case, there

-5- J-S24028-20

were facts in the record that, at least when considered in isolation, indicate

that Appellant mailed this petition for filing on August 14, 2017—the August

14, 2017 postage slip and the August 14, 2017 timestamp on the original

petition. Thus, we accept August 14, 2017, as the filing date, which

demonstrates that Appellant timely filed his original petition within the one-

year statute of limitations. We therefore proceed to the issues raised by

Appellant in this appeal.

Appellant claims that counsel provided ineffective assistance, and that

his plea of no contest was coerced and involuntary, because counsel

“guarantee[d]” him a sentence of no more than of five to ten years’

imprisonment if he pleaded no contest. Appellant’s Brief at 12. No relief is

due.

To obtain relief on a claim of ineffective assistance of counsel, Appellant

must prove that: (1) the underlying claim has arguable merit; (2) counsel

lacked a reasonable basis for his actions or failure to act; and (3) the petitioner

was prejudiced by counsel’s deficient performance such that there is a

reasonable probability that the result of the proceeding would have been

different absent counsel’s error or omission. Commonwealth v. Pierce, 527

A.2d 973, 975 (Pa. 1987). Counsel is presumed to have rendered effective

assistance. Commonwealth v. Sepulveda, 55 A.3d 1108, 1117 (Pa. 2012).

To prevail on a claim alleging counsel’s ineffectiveness relating to a plea,

Appellant “must show that counsel’s deficient stewardship resulted in a

-6- J-S24028-20

manifest injustice, for example, by facilitating entry of an unknowing,

involuntary, or unintelligent plea.” Commonwealth v. Flanagan, 854 A.2d

489, 502 (Pa. 2004). “A plea of nolo contendere is treated in the same manner

as a guilty plea in terms of its effect upon a particular case.” Commonwealth

v. Williams, 660 A.2d 614, 619 n.1 (Pa. Super. 1995). Appellant “is bound

by [his] statements made during [his] plea colloquy, and may not successfully

assert claims that contradict such statements.” Commonwealth v.

Muhammad, 794 A.2d 378, 384 (Pa. Super. 2002). A written colloquy can

supplement the oral colloquy, Commonwealth v. Morrison, 878 A.2d 102,

108-09 (Pa. Super. 2005), and the written colloquy “must be accorded prima

facie validity,” Commonwealth v. Smith, 450 A.2d 973, 974 (Pa. 1982).

Here, during the oral plea colloquy, the court explained that Appellant

could be sentenced to a maximum of 80 years, which Appellant confirmed he

“understood.” N.T. 12/02/13, at 8. The court asked if Appellant understood

“that the decision as to what sentence you receive will be mine and mine

alone,” and Appellant responded, “Yes, ma’am.” Id. The court asked whether

“anyone has threatened you or forced you to enter into this plea,” to which

Appellant responded, “No, ma’am.” Id. at 8-9. Appellant confirmed that he

was satisfied with the services of his attorney, acknowledged that he had

signed a written no contest plea form, and testified that his lawyer explained

the form to him and he “underst[oo]d everything in the form.” Id. at 9. The

written no contest plea colloquy form stated, “I know I can go to jail for up to

-7- J-S24028-20

80 years and be fined $100,000 for the crimes I committed,” “[t]here is no

plea bargain or agreement of any kind,” and “[n]obody promised me anything

or threatened me or forced me to plead guilty. I, myself, have decided to

plead guilty. I know what I say today is final.” Written No Contest Colloquy

05/02/14, at 1.

Citing Flanagan, Appellant argues that his no contest plea was

defective. In Flanagan, “the plea court committed two errors” that fatally

undermined the defendant’s plea: the court’s plea colloquy “failed to adduce

the factual basis for [Flanagan’s] plea” and it “erroneously advised” Flanagan

about the scope of his possible accomplice liability. Id., 854 A.2d at 493.

Here, in contrast, Appellant identifies no defects at all in the plea colloquy,

pointing only to out-of-court promises counsel allegedly made to him that do

not appear in the colloquy or anywhere else in the record.

Appellant’s argument is undermined not only by his own plea colloquy,

but also by the PCRA court’s factual and credibility findings that are owed

deference on appeal. PCRA Opinion, 2/12/20, at 8; N.T. 07/01/19 at 60. In

particular, at the evidentiary hearing, plea counsel unequivocally denied

“tell[ing] [Appellant] that if he were to enter into an open nolo contendere

plea or no contest plea that he would get a sentence of five to ten years,” and

counsel testified that he “would never guarantee anybody a sentence.” N.T.

07/01/19, at 19. The PCRA court found plea counsel’s testimony “very

credible.” Id. at 60. Based on that testimony and the record as a whole, the

-8- J-S24028-20

PCRA court concluded, “There is no indication other than [Appellant] now

saying he was told he was getting a five-to ten-year sentence. There is

nothing to support that claim.” Id. The PCRA court’s factual determinations

are supported by the record, and we agree with the PCRA court that

Appellant’s claim of ineffective assistance lacks merit.

Next, Appellant argues that defense counsel was ineffective for “fail[ing]

to file and litigate pre-trial motions” and “investigate potential witnesses.”

Appellant’s Brief at 13. No relief is due. Appellant fails to identify what

motions counsel should have filed or what witnesses counsel should have

investigated. Thus, Appellant’s claim lacks arguable merit.

Finally, Appellant argues that defense counsel failed to file a post-

sentence motion to reconsider his sentence. While it is true that no post-

sentence motion is in the record, counsel testified that he did file a motion to

reconsider, N.T. 07/01/19, at 29, and the record includes an order by the trial

court denying this motion. Order 05/13/14, at 1. On direct appeal, this Court

found that Appellant preserved his objection to the length of his sentence “in

a post-sentence motion” for reconsideration, and we affirmed his sentence on

the merits. Gregory, No. 1571 EDA 2014, 2016 WL 545815, at *1 & n.3.

Appellant fails to identify any relevant sentencing factors overlooked by the

sentencing judge.

Appellant’s attempt to analogize this case to Commonwealth v.

Green, 957 A.2d 1238 (Pa. Super. 2008), vacated 981 A.2d 1283 (Pa. 2009),

-9- J-S24028-20

is unavailing. In Green, the trial court imposed “what [was] essentially a life

sentence” in a “garden variety drug dealing case,” but that issue was waived

on direct appeal because defense counsel failed to move for reconsideration.

Id., 957 A.2d at 1242-43. In contrast, the present case is not “garden

variety”: Appellant raped, burglarized and robbed a 78-year-old woman in an

offense that the trial court considered “one the most egregious that I have

ever heard.” N.T. 05/02/14, at 32. Moreover, unlike in Green, the record

herein shows that counsel filed a motion to reconsider sentence, thus

preserving Appellant’s objection to his sentence for appellate review.

For these reasons, we affirm the PCRA court’s order denying relief to

Appellant.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8/27/20

- 10 -