Com. v. Heuer, D.

• Court: Superior Court of Pennsylvania
• Decided: March 28, 2023
• Docket: 2423 EDA 2021
• Status: Unpublished

Opinion

J-S45025-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

DAVID A. HEUER

Appellant No. 2423 EDA 2021

Appeal from the PCRA Order Entered November 3, 2021 In the Court of Common Pleas of Chester County Criminal Division at No: CP-15-CR-0002480-2018

BEFORE: OLSON, J., STABILE, J., and MURRAY, J.

MEMORANDUM BY STABILE, J.: FILED MARCH 28, 2023

Appellant, David A. Heuer, who is serving a sentence of eight to

sixteen years’ imprisonment following a guilty plea for a series of burglaries,

appeals from an order denying relief under the Post Conviction Relief Act

(“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. Appellant contends that his guilty

plea was not knowing, voluntary or intelligent due to ineffective assistance

of guilty plea counsel. We affirm.

A criminal information charged Appellant with committing forty-three

offenses, many of them felonies, during a string of burglaries between March

10, 2018 and April 8, 2018. On March 11, 2019, Appellant entered an open

plea of guilty to ten counts of burglary, 18 Pa.C.S.A. § 3502(a)(4), graded

as felonies of the second degree, and one count of criminal conspiracy to

commit burglary (no home/no person present), 18 Pa.C.S.A. §§ 903,

3502(a)(4), also a felony of the second degree. J-S45025-22

At the beginning of the guilty plea hearing, the prosecutor stated on

the record in the presence of both parties that “this will be an open guilty

plea today to ten counts of burglary and one count of conspiracy.” N.T.,

3/11/19, at 2. The Commonwealth recited a lengthy factual predicate for

each of the ten burglaries. Id. at 2-11. The court colloquied Appellant to

determine whether his plea was knowing, intelligent and voluntary. The

court showed Appellant a document, each page of which he had signed

and/or initialed prior to the hearing (the “Guilty Plea Document”). Id. at 11-

12. Appellant admitted that he had signed the Guilty Plea Document

following thorough consultation with his counsel as to the meaning of every

line on the document. Id. at 12. The court asked, “You were present in

court and heard the lengthy facts as read into the record by the attorney for

the Commonwealth, and again, they appear on the addendum [to the Guilty

Plea Document] we just referenced. Do you agree to those facts?” Id. at

14. Appellant answered, “I do, your Honor.” Id. Appellant is a career

criminal with numerous prior convictions or adjudications for burglary, both

as an adult and as a juvenile, in Pennsylvania and Delaware. Id. at 15. The

court accepted Appellant’s guilty plea as knowing, intelligent and voluntary.

Id. at 14.

The first page of the Guilty Plea Document advised Appellant of the

offenses to which he was pleading guilty, including the identification of the

substantive crimes, the statutes where they were codified, the number of

offenses to which he was pleading, and the maximum sentences and fines

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for the offenses. Guilty Plea Document, 3/11/19, at 1. On the last page of

the document, Appellant acknowledged, by placing his initials to the right of

the statement and by signing his name at the bottom of the page, that he

was “aware: ...[o]f the maximum sentences and fines that can be imposed

for the offense with which I am charged; they are set forth on the cover

pages of this form.” Id. at 8. Appellant acknowledged that he was pleading

guilty to the charges set forth on the cover page and that he read and

understood the cover page. Id. at 5. He acknowledged that he was

entering an open plea of guilt. Id. at 3. He stated that (1) his lawyer had

explained to him the elements of the offenses to which he was tendering his

plea, (2) he committed these crimes, and (3) the facts set forth on page 2 of

the Guilty Plea Document (a short description of his crimes) indeed occurred.

Id. at 5. He said that he was 39 years old, had obtained a GED, and was

able to read, write and understand the English language. Id. at 5. He

represented that he had never been treated for a mental illness. Id. at 5-6.

He understood the charges against him and was able to work with his

attorney in responding to the charges. Id. at 5. He agreed that he had

adequate time with counsel for her to answer any questions that he might

have had about the rights he was giving up. Id. Appellant initialed each

paragraph of the addendum to the Guilty Plea Document, a detailed

description of the facts underlying the offenses to which he was pleading

guilty. Addendum to Guilty Plea Document, at 1-3. He also signed the

signature line at the conclusion of the addendum. Id. at 3.

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On October 3, 2019, following a pre-sentence investigation, the court

sentenced Appellant to consecutive sentences of two to four years’

imprisonment on four burglary counts and concurrent sentences on all other

counts, for an aggregate term of eight to sixteen years’ imprisonment.

Appellant did not file a direct appeal.

On October 1, 2020, Appellant filed a PCRA petition averring that

guilty plea counsel rendered ineffective assistance by giving him false

information about the Commonwealth’s plea offer. According to Appellant,

prior to his guilty plea, guilty plea counsel told him that the Commonwealth

offered to permit him to plead guilty to one count of burglary and one count

of conspiracy in consideration for dropping the remaining forty-one charges

against him. In reality, Appellant continued, the prosecutor told counsel that

Appellant had to plead guilty to ten counts of burglary and one count of

conspiracy. Appellant claimed that his guilty plea was not voluntary,

knowing, and intelligent because counsel mischaracterized the terms of the

plea offer.

On August 23, 2021, the PCRA court held an evidentiary hearing in

which guilty plea counsel and Appellant testified. Guilty plea counsel

testified that well in advance of the guilty plea hearing, the Commonwealth

offered to allow Appellant to plead guilty to just one count of conspiracy and

one count of burglary. N.T., 8/23/21, at 6-7. Counsel notified Appellant

about this offer. Id. About one month before the guilty plea hearing,

however, the Commonwealth notified counsel that the offer was for

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Appellant to plead guilty to one count of conspiracy and ten counts of

burglary. Id. at 8. Counsel discussed the revised offer with Appellant. Id.

at 9. Before the guilty plea hearing, counsel went over “every page and

every paragraph” of the Guilty Plea Document with Appellant. Id. at 9.

Counsel signed the end of the Guilty Plea Document, signifying her belief

that Appellant understood what he was pleading guilty to and what rights he

was giving up in his plea. Id. Before the guilty plea, she advised Appellant

that he faced the possibility that the court could impose consecutive

sentences if he entered an open plea of guilty. Id. at 11. In her belief,

Appellant entered a knowing, voluntary and intelligent plea, and at the time

of his guilty plea, he understood the maximum sentences he could face and

that the sentences could run consecutively to one another. Id. at 11.

Counsel added that between the time of Appellant’s guilty plea and

sentencing, Appellant did not ask counsel to file a motion to withdraw his

guilty plea. Id. at 12.

Appellant testified on his own behalf. According to Appellant, guilty

plea counsel led him to believe that he was pleading guilty to only two

charges, one count of burglary and one count of conspiracy. Counsel did not

advise before his plea that the Commonwealth had revised its offer to ten

counts of burglary and one count of conspiracy. Id. at 64-65, 70. On the

day of the guilty plea hearing, he “was basically just advised to sign” the

plea agreement, and he signed it because he “thought [he] was doing what

[he] was advised to do.” Id. at 68. He said, “You know, I breezed

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through—I didn’t read every word, but I breezed through the plea colloquy

and, you know, everything on here led to two felonies. Like everything that

she had said had lined up for two felonies.” Id. at 68, 78-79. He stated,

“The maximum time is the exact same time as the one conspiracy count.

Like I didn’t see the Counts 1 through 10 in here.” Id. at 69. He signed the

addendum detailing the ten burglaries because he believed this would allow

“the case [to] be closed, and I could also pay restitution . . .” Id. at 72-73.

Counsel did not tell him about the maximum penalties he faced, and had she

done so, he would have insisted on going to trial. Id. at 73-75. He never

asked counsel a question during the guilty plea hearing because he thought

that he understood everything “perfectly,” that is, he was “taking a plea to

two felonies and the most I could get was two to four for each charge less or

plus the aggregate.” Id. at 76. He did not ask counsel to file a motion to

withdraw his guilty plea between the plea hearing and sentencing because

he did not realize until sentencing that he had pleaded guilty to more than

two counts. Id. at 76-77. He knew at the time of his guilty plea hearing

that he faced possible consecutive sentences, but only for two charges (one

burglary and one conspiracy charge). Id. at 80.

On November 3, 2021, the PCRA court entered an order denying PCRA

relief. Appellant filed a timely appeal, and both Appellant and the PCRA

court complied with Pa.R.A.P. 1925. Appellant raises the following issues in

this appeal:

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I. Did the PCRA court err in not finding plea counsel ineffective for falsely advising Appellant that the Commonwealth was going to allow him to plead guilty to only two of the multiple felony counts he was charged with in exchange for his open guilty plea and then allowing him to enter an open guilty plea to ten felony burglary counts and one conspiracy count?

II. Did the PCRA court err in not finding that plea counsel was ineffective for failing to inform Appellant of the maximum potential sentence that he faced when he entered his guilty plea where the court also did not inform him of the maximum penalty he might receive such that his plea was not knowingly, intelligently, and voluntarily entered?

Appellant’s Brief at 4.

“On appeal from the denial of PCRA relief, our standard of review

requires us to determine whether the ruling of the PCRA court is supported

by the record and free of legal error.” Commonwealth v. Widgins, 29

A.3d 816, 819 (Pa. Super. 2011). As this Court has explained:

We review an order dismissing a petition under the PCRA in the light most favorable to the prevailing party at the PCRA level. This review is limited to the findings of the PCRA court and the evidence of record. We will not disturb a PCRA court’s ruling if it is supported by evidence of record and is free of legal error. This Court may affirm a PCRA court’s decision on any grounds if the record supports it. Further, we grant great deference to the factual findings of the PCRA court and will not disturb those findings unless they have no support in the record. However, we afford no such deference to its legal conclusions. Where the petitioner raises questions of law, our standard of review is de novo and our scope of review plenary.

Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012). Further,

“[a] PCRA court passes on witness credibility at PCRA hearings, and its

credibility determinations should be provided great deference by reviewing

courts.” Commonwealth v. Johnson, 966 A.2d 523, 539 (Pa. 2009).

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When issues of credibility are concerned, it is not the function of an

appellate court to substitute its judgment based on a cold record for that of

the court of common pleas. Commonwealth v. King, 271 A.3d 437, 443

(Pa. Super. 2021).

When a petitioner asserts an ineffectiveness claim, he is entitled to

relief if he pleads and proves that prior counsel rendered ineffective

assistance of counsel. 42 Pa.C.S.A. § 9543(a)(2)(ii). “To prevail on an

[ineffectiveness] claim, a PCRA petitioner must plead and prove by a

preponderance of the evidence that (1) the underlying legal claim has

arguable merit; (2) counsel had no reasonable basis for acting or failing to

act; and (3) the petitioner suffered resulting prejudice.” Commonwealth

v. Reyes-Rodriguez, 111 A.3d 775, 780 (Pa. Super. 2015) (en banc). “A

petitioner must prove all three factors of [this] test, or the claim fails.” Id.

“The burden of proving ineffectiveness rests with Appellant.”

Commonwealth v. Chmiel, 889 A.2d 501, 540 (Pa. 2005).

In his first claim of ineffective assistance, Appellant claims that his

plea was unknowing, involuntary or unintelligent because guilty plea counsel

falsely advised him that he was pleading guilty to only two charges but then

allowed him to plead guilty to ten burglaries and one conspiracy charge. The

PCRA court correctly denied this claim due to lack of arguable merit.

To be valid, a plea must be voluntary, knowing, and intelligent.

Commonwealth v. Persinger, 615 A.2d 1305, 1307 (Pa. 1992). In other

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words, “[t]he law does not require that [the defendant] be pleased with the

outcome of his decision to enter a plea of guilty: All that is required is that

[his] decision to plead guilty be knowingly, voluntarily and intelligently

made.” Commonwealth v. Yager, 685 A.2d 1000, 1004 (Pa. Super. 1996)

(en banc).

Pennsylvania Rule of Criminal Procedure 590 governs guilty pleas and

plea agreements. Under Rule 590, in order for a guilty plea to be voluntary

and knowing, the plea colloquy must, at a minimum, ascertain the following:

1. Does the defendant understand the nature of the charges to which he or she is pleading guilty or nolo contendere?

2. Is there a factual basis for the plea?

3. Does the defendant understand that he or she has the right to trial by jury?

4. Does the defendant understand that he or she is presumed innocent until found guilty?

5. Is the defendant aware of the permissible range of sentences and/or fines for the offenses charged?

6. Is the defendant aware that the judge is not bound by the terms of any plea agreement tendered unless the judge accepts such agreement?

Comment, Pa.R.Crim.P. 590.

The law presumes that a defendant who enters a guilty plea is aware

of what he is doing. Commonwealth v. Hart, 174 A.3d 660, 665 (Pa.

Super. 2017). The defendant is bound by the statements he makes during

his plea colloquy. Commonwealth v. Orlando, 156 A.3d 1274, 1281 (Pa.

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Super. 2017). A defendant who elects to plead guilty has a duty to answer

questions truthfully and is bound by statements he makes under oath.

Commonwealth v. Pollard, 832 A.2d 517, 523 (Pa. Super. 2003). He may

not assert grounds for withdrawing a guilty plea that contradict the

statements he made when he entered the plea. Id.

“[A] criminal defendant’s right to effective counsel extends to the plea

process, as well as during trial.” Commonwealth v. Wah, 42 A.3d 335,

338 (Pa. Super. 2012). Thus, “[i]n the context of a plea, a claim of

ineffectiveness may provide relief only if the alleged ineffectiveness caused

an involuntary or unknowing plea.” Orlando, 156 A.3d at 1281. “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.” Wah, 42 A.3d at

338-39; see also Commonwealth v. Johnson, 875 A.2d 328, 331 (Pa.

Super. 2005) (when asserting claim of ineffectiveness of counsel in

connection with guilty plea, defendant must show that plea counsel’s

ineffectiveness induced him to enter the plea).

Appellant argues that guilty plea counsel was ineffective for failing to

inform him that he was pleading guilty to ten burglary and one conspiracy

charge, not just one burglary and one conspiracy charge. The PCRA court

correctly rejected this argument because the record establishes that

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Appellant fully understood the nature of the charges at the time of his guilty

plea.

Appellant is a career criminal with numerous prior convictions or

adjudications for burglary, both as an adult and as a juvenile, in

Pennsylvania and Delaware. The record establishes that guilty plea counsel

advised Appellant that he was pleading guilty to ten burglaries and one

conspiracy charge, not merely one burglary and one conspiracy charge, as

Appellant alleges. The first page of the Guilty Plea Document sets forth the

elements of burglary and conspiracy. Appellant signed this page and signed

an acknowledgement on the final page of the Guilty Plea Document that he

read and understood the cover page and the charges against him. Appellant

initialed each paragraph of the addendum to the Guilty Plea Document that

detailed the facts underlying all ten charges. He also signed the signature

line at the conclusion of the addendum. Appellant also acknowledged in the

Guilty Plea Document that he had enough time to discuss his charges with

his lawyer, that he was satisfied with the advice that she gave him and with

her representation of him, that he had gone over the entire document with

his lawyer, and that she explained it to him and answered his questions.

Moreover, during the guilty plea hearing, in Appellant’s presence, the

prosecutor stated that Appellant was entering an open guilty plea to ten

counts of burglary and one count of conspiracy. The prosecutor read into

the record the summary of all charges in the addendum to the Guilty Plea

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Document. Appellant testified that he signed the Guilty Plea Document

following thorough consultation with his counsel as to the meaning of every

line on the document. He further testified that he heard the lengthy

recitation of facts by the Commonwealth and agreed to those facts.

During the PCRA hearing, guilty plea counsel testified that she had

numerous conversations with Appellant about the charges he faced and what

he could expect if he agreed to the Commonwealth’s offer. N.T., 8/23/21, at

8. Counsel told Appellant that the initial offer from the Commonwealth was

a guilty plea to one count of burglary and one count of conspiracy. Id. at 8.

Approximately one month before the guilty plea hearing, however, counsel

advised Appellant that the Commonwealth revised its offer to a guilty plea to

ten counts of burglary and one count of conspiracy. Id. at 9. Counsel

reviewed with Appellant “[e]very page and every paragraph” of his written

Guilty Plea Document. Id. at 9-10. The PCRA court credited counsel’s

testimony, PCRA Ct. Op., 5/17/22, at 58, and we accord great deference to

this credibility determination. Johnson, 966 A.2d at 539.

The PCRA court also found Appellant’s testimony incredible. Appellant

claimed during the PCRA hearing that he simply “breezed through” the Guilty

Plea Document and believed he was pleading guilty to only one charge of

burglary and the conspiracy charge. The PCRA court carefully explained why

it did not believe this testimony:

If [Appellant] did not pay attention to counsel as she went over each and every page with him and did not specifically attend to

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the terms of the agreement, [Appellant]’s alleged confusion, the notion of which we reject, would have been due to his own nonfeasance and no inadequacy in counsel’s stewardship. Additionally, [Appellant] did not raise any concerns about the alleged discrepancy in his peculiar understanding of the terms of the plea and the actual terms as set forth on the record either at the verbal guilty plea colloquy or at sentencing. To the contrary, [Appellant] affirmed that he understood the terms of the plea, that he had had enough time to go over the plea with counsel, that he was satisfied with her services, and that she had answered any questions he might have had.

PCRA Court Opinion, 5/17/22, at 65.

Appellant complains that “there is no record support for the court’s

decision to credit [guilty plea counsel’s] testimony over [A]ppellant’s.”

Appellant’s Brief at 21 n.2. As stated above, we cannot substitute our own

judgment on credibility issues for the PCRA court’s judgment. Credibility

determinations rest not only upon the substance of the witnesses’ testimony

but also on their demeanor. The PCRA court had the opportunity to observe

the witnesses’ demeanor during the evidentiary hearing. This Court does

not have that opportunity; all that we have is the cold record. Therefore, we

do not accept Appellant’s invitation to find him more credible than guilty plea

counsel.

Based on the Guilty Plea Document, Appellant’s testimony during the

guilty plea, and the evidence adduced during the PCRA evidentiary hearing,

the PCRA court had ample reason to conclude that Appellant’s claim of

ineffective assistance lacks arguable merit. The record supports the PCRA

court’s determination that Appellant understood that he was pleading guilty

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to ten burglaries and one count of conspiracy, and that his guilty plea was

knowing, voluntary and intelligent.

In his second and final argument, Appellant asserts that guilty plea

counsel was ineffective because she failed to make him aware that the court

could impose consecutive sentences. The PCRA court properly rejected this

argument.

The court imposed consecutive sentences on four of the eleven counts

to which Appellant pleaded guilty. Concededly, the Guilty Plea Document

stated the maximum possible sentence for burglary and conspiracy, it did

not state that the court could impose consecutive sentences. Nor was the

subject of consecutive sentences discussed during the guilty plea hearing.

Nevertheless, the record demonstrates that at the time of the guilty plea

hearing, Appellant was fully aware that the court could impose consecutive

sentences on all charges. Guilty plea counsel testified during the PCRA

hearing that prior to the guilty plea, she advised Appellant that by pleading

guilty to ten counts of burglary and a single count of conspiracy, he faced

consecutive sentences on these charges. The PCRA court found this

testimony credible. Furthermore, during the PCRA hearing, Appellant

admitted knowing at the time of his guilty plea that he faced possible

consecutive sentences. He claimed, however, that he believed he was

pleading guilty to only two offenses and therefore faced consecutive

sentences on only two charges. The PCRA court found guilty plea counsel’s

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testimony credible and Appellant’s testimony incredible, as it had the right to

do as the finder of fact. King, 271 A.3d at 443.

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

Appellant.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 3/28/2023

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