Com. v. Harper, C.

• Court: Superior Court of Pennsylvania
• Decided: May 10, 2024
• Docket: 410 WDA 2023
• Status: Unpublished

Opinion

J-A06025-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : CURTIS MAURICE HARPER : : Appellant : No. 410 WDA 2023

Appeal from the PCRA Order Entered March 13, 2023 In the Court of Common Pleas of Cambria County Criminal Division at No(s): CP-11-CR-0000988-2016

BEFORE: LAZARUS, P.J., PANELLA, P.J.E., and BECK, J.

MEMORANDUM BY PANELLA, P.J.E.: FILED: May 10, 2024

Curtis Maurice Harper appeals from the order entered in the Cambria

County Court of Common Pleas on March 13, 2023, denying his petition filed

pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-

9546. For the reasons discussed below, we find the PCRA court properly

denied Harper relief and affirm.

On April 18, 2016, Harper was charged by criminal information with over

fifty offenses related to drug trafficking. The charges stemmed from a

statewide grand jury investigation.

On June 27, 2017, Harper entered a negotiated guilty plea to all charges.

On July 31, 2017, the trial court sentenced Harper in accordance with the plea

agreement to twenty-two to forty-four years’ incarceration. Harper did not file

any post-sentence motions or a direct appeal. J-A06025-24

On January 19, 2018, Harper filed a timely pro se PCRA petition. Counsel

was appointed and subsequently filed two amended PCRA petitions. The PCRA

court held seven evidentiary hearings between July 2021 and September

2022. At the direction of the PCRA court, both parties submitted legal briefs

for the court’s consideration.

Before the court could rule on the petition, it learned that Harper’s PCRA

counsel had passed away in January 2023. New counsel was appointed to

represent Harper and a status conference was held in March 2023. The PCRA

court subsequently issued an opinion and order denying Harper’s PCRA

petition. This timely appeal followed.

On appeal, Harper argues the PCRA court erred in ruling that plea

counsel was not ineffective for failing to pursue pretrial motions filed on

Harper’s behalf. Harper claims that his plea was not knowingly and intelligently

entered as a result of ineffectiveness of counsel.

Our review of an order dismissing a PCRA petition is limited to examining

whether the PCRA court’s determinations are supported by the record and the

court’s decision is free of legal error. See Commonwealth v. Shaw, 217

A.3d 265, 269 (Pa. Super. 2019). Although we give great deference to the

factual findings of the PCRA court and will not disturb those findings unless

they have no support in the record, we apply a de novo standard of review to

the PCRA court’s legal conclusions. See Commonwealth v. Benner, 147

A.3d 915, 919 (Pa. Super. 2016).

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“A plea of guilty effectively waives all nonjurisdictional defects and

defenses.” Commonwealth v. Gibson, 561 A.2d 1240, 1242 (Pa. Super.

1989) (citation omitted). Here, Harper failed to raise a challenge to his guilty

plea at any time before the trial court. Harper did not move to withdraw his

plea either. He also failed to pursue a direct appeal. Therefore, any challenge

to his guilty plea is undoubtedly waived. See 42 Pa.C.S.A. § 9544(b).

Seemingly recognizing this, Harper phrases his current challenge as a

claim counsel was ineffective for advising him to plead guilty instead of

pursuing pretrial motions.

“A criminal defendant has the right to effective counsel during a plea

process as well as during trial.” Commonwealth v. Rathfon, 899 A.2d 365,

369 (Pa. Super. 2006) (citation omitted). However, “[a]llegations of

ineffectiveness in connection with the entry of a guilty plea will serve as a

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

involuntary or unknowing plea.” Commonwealth v. Hickman, 799 A.2d 136,

141 (Pa. Super. 2002) (citation omitted). Also, “[w]here the defendant enters

his plea on the advice of counsel, the voluntariness of the plea depends upon

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

attorneys in criminal cases.” Id. (internal quotation marks and citations

omitted).

We presume counsel is effective, and an appellant bears the burden to

prove otherwise. See Commonwealth v. Bennett, 57 A.3d 1185, 1195 (Pa.

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2012). The test for ineffective assistance of counsel is the same under both

the Federal and Pennsylvania Constitutions. See Strickland v. Washington,

466 U.S. 668, 687-88 (1984); Commonwealth v. Kimball, 724 A.2d 326,

330-32 (Pa. 1999). An appellant must demonstrate: (1) his underlying claim

is of arguable merit; (2) the particular course of conduct pursued by counsel

did not have some reasonable basis designed to effectuate his interests; and

(3) but for counsel’s ineffectiveness, there is a reasonable probability that the

outcome of the proceedings would have been different. See Commonwealth

v. Solano, 129 A.3d 1156, 1162-63 (Pa. 2015). A failure to satisfy any prong

of the test for ineffectiveness will require rejection of the claim. See id. at

1163. Where, as here, the appellant entered a plea of guilty, in order to satisfy

the prejudice requirement, he 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.” Rathfon, 899 A.2d at 370 (citation

Extensive PCRA evidentiary hearings were held on Harper’s claims in the

instant PCRA petition. In its opinion, the PCRA court summarized its findings

of fact from the seven PCRA evidentiary hearings as follows:

1. On June 27, 2017, [Harper], being represented by counsel, negotiated and accepted a plea agreement in which [Harper] pled guilty to all 58 counts included in the Information; Commonwealth also agreed to nolle prosequi charges stemming from three other dockets.

2. [Harper] completed both a written and oral colloquy in connection with the guilty plea.

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3. [Harper] was sentenced on July 31, 2017, with Attorney Lovette present as counsel. The sentence was the same as the sentence anticipated in the plea agreement (22 – 44 years[’] incarceration).

4. [Harper] did not file a direct appeal.

5. [Harper]’s instant allegations of ineffective assistance of counsel pertain only to Attorney Kevin Sanders and Attorney John Lovette [Attorneys Sanders and Lovette collectively, “Counsel”]. Counsel represented [Harper] at the time he entered his guilty plea. Attorney Patricia Moore had previously represented [Harper].

6. During her representation, Attorney Moore filed an omnibus pre-trial motion; Counsel subsequently filed a second omnibus pre-trial motion.

7. The second omnibus pre-trial motion was scheduled for argument for June 27, 2017.

8. Commonwealth had offered [Harper] a plea bargain; Commonwealth indicated June 27, 2017, would be the last day the offer would be available.

9. Operating pursuant to [Harper]’s direction, Attorney Sanders spent the majority of the courthouse’s ordinary business hours on June 27, 2017, negotiating the plea agreement on [Harper]’s behalf and discussing the plea agreement (and [Harper]’s case) with [Harper].

10. Among the chief considerations [Harper] contemplated in electing to enter a guilty plea was the opportunity to eventually be released from prison and the substantial number of charges he was facing. In other words, [Harper] wanted to avoid the possibility of a de facto life sentence.

11. In the event a plea agreement was not reached, Attorney Sanders was willing, able, and prepared to litigate the second omnibus pretrial motion.

12. At all relevant times, [Harper] understood the nature, status, and happenings of his case, including but not limited to the matters contained within the second omnibus pretrial motion.

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13. The second omnibus pretrial motion was not litigated solely because [Harper] pled guilty.

14. All of the information that [Harper] alleges (in the Second Amended Petition) he needed to possess to enter a voluntary and knowing plea relate to matters that would have been litigated in the second omnibus pretrial motion but for [Harper]’s decision to plead guilty.

15. [Harper] never requested for Counsel to withdraw his guilty plea during their representation.

16. Before the [c]ourt, [Harper] did not request to withdraw his guilty plea at sentencing nor beforehand.

17. [Harper] has not alleged (in the Second Amended Petition) any defect of any kind or ineffectiveness of counsel relative to the written and oral plea colloquies.

PCRA Court Opinion, 3/13/2023, at 2-3 (footnote omitted). After careful

review of the record, we find the PCRA court’s findings of fact are supported

by the record. As such, we will not disturb them. See Benner, 147 A.3d at

919.

Based on the above findings, the PCRA court concluded that the only

reason the Second Omnibus Pretrial Motion was not litigated was because

Harper agreed to enter a guilty plea. See PCRA Court Opinion, 3/13/2023, at

5. Harper therefore waived the opportunity to litigate the motion by pleading

guilty. See id.

Harper completed a written and oral plea colloquy. We agree with the

PCRA court that Harper has not alleged any defect or ineffectiveness with the

colloquies themselves. See id.

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This Court has held where the record clearly shows the court conducted

a thorough plea colloquy and the defendant understood his rights and the

nature of the charges against him, the plea is voluntary. See Commonwealth

v. McCauley, 797 A.2d 920, 922 (Pa. Super. 2001). In examining whether

the defendant understood the nature and consequences of his plea, we look

to the totality of the circumstances. See id.

On June 27, 2017, at around 10:00 a.m., Harper appeared before the

trial court for a scheduled hearing on pre-trial motions. At the start of the

hearing, the Commonwealth put forth a plea offer on the record. See N.T.,

Plea Hearing, 6/27/17, at 2. The Commonwealth clarified that it was the last

day for Harper to accept the plea offer. See id. Harper requested more time

to speak with his counsel. See id. at 4-5. Harper spoke to Attorney Sanders

for most of the day. See id. at 6.

At about 3:35 p.m., the trial court reconvened the proceedings and

Harper indicated that he had an opportunity to speak with his counsel and that

it was his wish to enter a guilty plea. See id. Prior to reconvening the

proceedings, Harper had completed and signed a written guilty plea colloquy.

Harper acknowledged that he assisted Attorney Sanders in filling out the

colloquy, and that he signed the colloquy. See id. at 9. Relevantly, in the

written colloquy, Harper affirmed that by pleading guilty he was giving up the

right to pre-trial motions, including motions for suppression. See Written

Guilty Plea Colloquy, 6/27/17, at 5.

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During the oral guilty plea colloquy, Harper affirmed he was not under

the influence of any drugs or alcohol. See N.T., Plea Hearing, 6/27/17, at 8.

Harper acknowledged his understanding of the written plea colloquy, that he

had reviewed the whole document with counsel, and that he did not have any

questions about the form. See id. at 9. The court thoroughly set forth the

elements of the offenses Harper was pleading to and the maximum sentence

he could receive for each charge. See id. at 10-17. Harper acknowledged that

he understood everything that was explained by the court and still wished to

plead guilty. See id. at 17. The Commonwealth then set forth the factual basis

for the plea on the record. See id. at 17-20. Harper affirmed those facts to

be true. See id. at 20.

Harper affirmed that no one had forced or threatened him into pleading

guilty, and that no promises had been made to him other than the proposed

agreement with the Commonwealth. See id. at 22. Finally, Harper

acknowledged he was satisfied with his counsels’ representation. See id. In

accepting the plea, the court concluded the plea was knowingly and voluntarily

entered. See id. at 23.

The statements made during a plea colloquy bind a criminal defendant.

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

As a result, a defendant cannot assert grounds for withdrawing the plea that

contradict statements made at that time. See Commonwealth v. Stork, 737

A.2d 789, 790-91 (Pa. Super. 1999). Further, “[t]he law does not require that

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appellant be pleased with the outcome of his decision to enter a plea of guilty:

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

voluntarily and intelligently made.” Commonwealth v. Yager, 685 A.2d

1000, 1004 (Pa. Super. 1996) (en banc) (internal quotation marks and citation

omitted). Harper has not shown that his decision to enter his plea was

involuntary.

Harper did not challenge his guilty plea at either the guilty plea hearing

or two months later at sentencing. Further, Harper did not file a motion to

withdraw his guilty plea at any point or a direct appeal challenging his guilty

plea. While he briefly states he should be permitted to withdraw his guilty plea

in the summary of the argument and conclusion sections of his brief, see

Appellant’s Brief, at 10, 16, this simply is not enough to preserve the issue.

Finally, at no point, including during the instant PCRA proceedings, has Harper

claimed he was actually innocent of the charges or, but for Counsels’

inadequate representation, he would have elected to proceed to trial. Rather,

he argues that had he had more information related to the omnibus pre-trial

motions, he would have chosen to litigate the motions rather than plead guilty.

At the first hearing, Attorney Lovette testified that he did not recall

Harper wanting to withdraw his plea between the plea hearing and sentencing.

See N.T., PCRA Hearing, 7/8/21, at 21. Attorney Lovette stated it was his

practice to file a motion to withdraw a plea if a client asked him to do so. See

id. Accordingly, if Harper had asked him to file a motion to withdraw the plea,

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he would have. See id. Attorney Lovette further testified that Harper did not

say anything about wanting to withdraw his plea at the sentencing hearing.

See id. at 50.

Attorney Lovette testified that all pretrial motions that were filed on

Harper’s behalf were set to be litigated at the omnibus motion hearing which

was scheduled for June 27, 2017. See id. at 23. Attorney Lovette stated the

hearing was not held because Harper accepted a plea offer. See id. Attorney

Lovette testified that Counsel was prepared to litigate the pretrial motions at

the motions hearing scheduled for June 27, 2017, if Harper had decided not

to enter his guilty plea. See id. at 38-48.

Attorney Sanders testified at the evidentiary hearings held on August

24, 2021 and November 9, 2021. Attorney Sanders testified that Counsel had

discussed possible defenses with Harper “at length.” See N.T., PCRA Hearing,

11/9/21, at 14. Attorney Sanders clarified that defenses were not discussed

at length specifically on the day of the plea however, because a majority of

the day was spent going back and forth discussing the offer and trying to

negotiate a plea that was acceptable to Harper. See id. at 14-15. While parts

of the conversation that day dealt with defenses, a majority of the

conversation pertained to negotiations, by Harper’s own choosing. See id. at

16-17.

After speaking with Harper for multiple hours prior to the plea, Attorney

Sanders believed Harper was able to make a knowing, voluntary, and

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intelligent choice to enter a plea. See id. at 56. Attorney Sanders affirmed

that Harper did not have any difficulty understanding anything when they

completed the written colloquy form together, and that if Harper did not

understand something, Attorney Sanders would have informed the court. See

id. at 56-57. Attorney Sanders stated that “[t]here was never an indication

any time between the plea and whenever the sentencing occurred that

[Harper] wanted to withdraw that plea or that he did not understand the plea

bargain itself and voluntarily, knowingly pled it.” Id. at 57-58. Attorney

Sanders affirmed the same was true for after sentencing. See id. at 58.

Attorney Sanders was adamant that Harper understood the status of the

case, in that if Harper did not accept a plea that day, counsel would be

litigating the pretrial motions that same day. See id. at 59. Attorney Sanders

was confident that Harper understood that there was a possibility that he could

prevail on one or more of the omnibus pretrial motions if he chose to pursue

them. See id. It was a fair back and forth between Harper and Attorney

Sanders during the numerous hours they spent discussing the plea. See id.

Attorney Sanders clarified that Harper did not have any questions about the

provision in the written plea colloquy providing that he understood he was

giving up his ability to file pretrial motions. See id. at 62. Finally, Attorney

Sanders affirmed that to the best of his ability he tried to inform Harper of the

evidence against him, possible defenses, what status the case was at, up to

and including what counsel knew on June 27, 2017. See id. at 75.

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Harper testified on his own behalf at the next two evidentiary hearings,

held on November 23, 2021 and January 4, 2022. Harper admitted that prior

to sentencing, Attorney Lovette notified Harper that if there was anything he

wanted to change, that at that time Harper had the opportunity to withdraw

his plea. See N.T., PCRA Hearing, 11/23/21, at 35. Harper stated he believed

doing that “would have been ridiculous” and “wouldn’t have went nowhere.”

Id. Harper stated that Attorney Lovette asked “me was this – is this what I

wanted them to do” and he responded “yeah.” Id. at 36-37.

Harper testified that prior to his plea, Attorney Sanders discussed the

motion to suppress with him. See id. at 37-38. Harper stated that Attorney

Sanders told him he didn’t believe the motion would be successful, and Harper

believed him. See id. at 38.

On cross-examination, Harper affirmed that he spoke with Attorney

Sanders for approximately five hours before entering his guilty plea. See id.

at 52. Harper agreed that he had plenty of time during those five hours to ask

Attorney Sanders any questions he had about the case. See id. at 52-53.

While Harper had claimed Attorney Sanders never gave any reason or

explanation as to why he thought the suppression motion would not be

successful, Harper affirmed that he never asked for an explanation during the

five hours that they talked about the plea offer. See id. at 56.

The PCRA court specifically credited the testimony of Attorneys Lovette

and Sanders. See PCRA Court Opinion, 3/13/23, at 5. Along with the court’s

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factual determinations, these credibility determinations are binding on us. See

Commonwealth v. Reyes-Rodriguez, 111 A.3d 775, 779 (Pa. Super.

2015).

For the reasons set forth above, we conclude that Harper is entitled to

no relief. The record supports the PCRA court's determination. Moreover,

having conducted an independent review of the record in light of the PCRA

petition, we agree that the PCRA petition is meritless.

Accordingly, for the reasons discussed above, we affirm the PCRA court’s

dismissal of Harper’s PCRA petition.

Order affirmed.

DATE: 05/10/2024

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