Com. v. Nieves, N.
This text of Com. v. Nieves, N. (Com. v. Nieves, N.) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
J-S17025-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF : IN THE SUPERIOR COURT OF PENNSYLVANIA : PENNSYLVANIA : : v. : : : NOEL NIEVES : : No. 3202 EDA 2016 Appellant :
Appeal from the PCRA Order August 30, 2016 In the Court of Common Pleas of Chester County Criminal Division at No(s): CP-15-CR-0000858-2015
BEFORE: BENDER, P.J.E., LAZARUS, J., and KUNSELMAN, J.
MEMORANDUM BY LAZARUS, J.: FILED APRIL 16, 2018
Noel Nieves appeals, pro se, from the order, entered in the Court of
Common Pleas of Chester County, denying his petition filed pursuant to the
Post Conviction Relief Act, (“PCRA”), 42 Pa.C.S.A. §§ 9541-45. After our
review, we affirm based on the opinion authored by the Honorable Anthony A.
Sarcione.
In October 2015, Nieves committed three gunpoint robberies in Chester
County. On July 15, 2015, Nieves entered a negotiated guilty plea to one
count of robbery, 18 Pa.C.S.A. § 3701(a)(1)(ii), graded as a felony of the first
degree at docket number 15-CR-0003829-2014, and two counts of robbery,
18 Pa.C.S.A. § 3701(a)(1)(ii), also graded as felonies of the first degree, at
docket number 15-CR-000858-2105. J-S17025-18
In accordance with the terms of the plea bargain, the court sentenced
Nieves on July 17, 2015 to ten to twenty years’ imprisonment followed by ten
years’ probation. Nieves did not file post-sentence motions or a direct appeal.
On November 4, 2015, Nieves filed a timely PCRA petition. He alleged
plea counsel was ineffective for failing to file a pretrial motion to suppress on
various grounds, for “manipulating” him into entering a guilty plea, for failing
to develop a strategy to support his claim of innocence, and for failing to file
a post-sentence motion for modification. On November 6, 2015, the court
appointed PCRA counsel for Nieves.
On January 27, 2016, PCRA counsel filed a petition to withdraw and a
no-merit letter pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa.
1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en
banc). On March 8, 2016, the court issued a notice of intent to dismiss
pursuant to Pa.R.Crim.P. 907(1). Nieves responded with a pro se letter to the
court, claiming he had been diagnosed with ADHD and bipolar disorder as a
child and, although he denied being on medication at the time of his plea, “the
truth was” that he was on medication and could not “focus right” during the
guilty plea colloquy. In response, the court conducted another independent
review of the record and again determined there were no genuine issues
concerning any material fact and that no relief was warranted. The court
issued another Rule 907 notice of intent to dismiss.
On April 20, 2016, Nieves filed an “Emergency Motion for Enlargement
of Time,” seeking additional time to respond to the court’s Rule 907 notice.
-2- J-S17025-18
The court granted Nieves’ motion in part, allowing him 60 days to respond.
Nieves filed his response on June 20, 2016, again challenging plea counsel’s
effectiveness in suggesting that if he were convicted, Nieves, as a repeat felon,
would be sentenced to a mandatory 30 to 60 years in prison, and that as a
once-convicted felon, he would not be entitled to the presumption of
innocence.
Nieves wrote a second letter to the court on July 19, 2016, claiming he
was “not right mentally” when he tendered his plea due to his medicated
status, and counsel had suggested that he not admit to being medicated at
the colloquy. On July 22, 2016, the court entered an order directing PCRA
counsel to review Nieves’s Rule 907(1) response and his July 19, 2016 pro se
letter, and to advise the court whether Nieves was entitled to an evidentiary
hearing on whether plea counsel was ineffective for: (1) misadvising Nieves
of the applicable law; (2) failing to file a pretrial motion to suppress; and (3)
for counseling Nieves to plead guilty.
PCRA counsel complied and filed a letter to the court. Thereafter,
following another independent review of the record in light of Nieves’
supplemental claims and PCRA counsel’s response, the court issued a final
order on August 30, 2016 dismissing Nieves’ PCRA petition and granting
counsel’s petition to withdraw. This pro se appeal followed.
Nieves raises the following issue for our review:
Whether this pro se brief upon appeal from the PCRA court’s August 30, 2016, final dismissal order merits redress is a question of exceptional circumstances and the law?
-3- J-S17025-18
Appellant’s Brief, at 2.
Essentially, Nieves is challenging the PCRA court’s order dismissing his
petition without a hearing to determine if his guilty plea was invalid due to
plea counsel’s ineffectiveness. We review such a decision for an abuse of
discretion. Commonwealth v. Wah, 42 A.3d 335, 338 (Pa. Super. 2012).
A petitioner’s right to an evidentiary hearing on a post-conviction
petition is not absolute. “It is within the PCRA court’s discretion to decline to
hold a hearing if the petitioner’s claim is patently frivolous and has no support
either in the record or other evidence.” Id., quoting Commonwealth v.
Turetsky, 925 A.2d 876, 882 (Pa. Super. 2007) (internal citations omitted);
see also Pa.R.Crim.P. 907. “The controlling factor . . . is the status of the
substantive assertions in the petition. Thus, as to ineffectiveness claims in
particular, if the record reflects that the underlying issue is of no arguable
merit or no prejudice resulted, no evidentiary hearing is required.”
Commonwealth v. Baumhammers, 92 A.3d 708, 726–27 (Pa. 2014)
(citations omitted).
Nieves has set forth a comprehensive argument in his pro se brief,
outlining his claims of ineffectiveness of both plea counsel and appointed PCRA
counsel. Nieves argues this Court should remand for a hearing to determine
whether sufficient evidence exists of his “medically impaired mental status at
the time of the negotiated plea deal,” and whether plea counsel advised him
that he would not be entitled to the presumption of innocence and would be
subject to a mandatory 30-60 year sentence. Appellant’s Brief, at 11, 15-17.
-4- J-S17025-18
After our review of the parties’ briefs, the record, and the relevant law,
we agree with the PCRA court’s determination that there were no genuine
issues of material fact with respect to Nieves’ claims of ineffectiveness. The
record of the verbal guilty plea colloquy and the written guilty plea colloquy
belies Nieves’ claims that he was manipulated and coerced into entering a
guilty plea. Nieves stated that he was a high school graduate, was not under
the influence of “any drugs, alcohol or medicine,” and that he did not suffer
from any mental illness “or anything else that would cause [him] not to
understand[.]” See N.T. Guilty Plea Colloquy, 7/17/15, at 3. He also stated
that he understood that he was “presumed to be innocent[.]” Id. at 4. At
the colloquy, Nieves admitted to the three gunpoint robberies, id. at 5, 7, and
stated that he was satisfied with plea counsel’s services. Id. at 10. See also
Written Plea Colloquy, 7/17/15, at 6; Pa.R.Crim.P. 590.
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J-S17025-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF : IN THE SUPERIOR COURT OF PENNSYLVANIA : PENNSYLVANIA : : v. : : : NOEL NIEVES : : No. 3202 EDA 2016 Appellant :
Appeal from the PCRA Order August 30, 2016 In the Court of Common Pleas of Chester County Criminal Division at No(s): CP-15-CR-0000858-2015
BEFORE: BENDER, P.J.E., LAZARUS, J., and KUNSELMAN, J.
MEMORANDUM BY LAZARUS, J.: FILED APRIL 16, 2018
Noel Nieves appeals, pro se, from the order, entered in the Court of
Common Pleas of Chester County, denying his petition filed pursuant to the
Post Conviction Relief Act, (“PCRA”), 42 Pa.C.S.A. §§ 9541-45. After our
review, we affirm based on the opinion authored by the Honorable Anthony A.
Sarcione.
In October 2015, Nieves committed three gunpoint robberies in Chester
County. On July 15, 2015, Nieves entered a negotiated guilty plea to one
count of robbery, 18 Pa.C.S.A. § 3701(a)(1)(ii), graded as a felony of the first
degree at docket number 15-CR-0003829-2014, and two counts of robbery,
18 Pa.C.S.A. § 3701(a)(1)(ii), also graded as felonies of the first degree, at
docket number 15-CR-000858-2105. J-S17025-18
In accordance with the terms of the plea bargain, the court sentenced
Nieves on July 17, 2015 to ten to twenty years’ imprisonment followed by ten
years’ probation. Nieves did not file post-sentence motions or a direct appeal.
On November 4, 2015, Nieves filed a timely PCRA petition. He alleged
plea counsel was ineffective for failing to file a pretrial motion to suppress on
various grounds, for “manipulating” him into entering a guilty plea, for failing
to develop a strategy to support his claim of innocence, and for failing to file
a post-sentence motion for modification. On November 6, 2015, the court
appointed PCRA counsel for Nieves.
On January 27, 2016, PCRA counsel filed a petition to withdraw and a
no-merit letter pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa.
1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en
banc). On March 8, 2016, the court issued a notice of intent to dismiss
pursuant to Pa.R.Crim.P. 907(1). Nieves responded with a pro se letter to the
court, claiming he had been diagnosed with ADHD and bipolar disorder as a
child and, although he denied being on medication at the time of his plea, “the
truth was” that he was on medication and could not “focus right” during the
guilty plea colloquy. In response, the court conducted another independent
review of the record and again determined there were no genuine issues
concerning any material fact and that no relief was warranted. The court
issued another Rule 907 notice of intent to dismiss.
On April 20, 2016, Nieves filed an “Emergency Motion for Enlargement
of Time,” seeking additional time to respond to the court’s Rule 907 notice.
-2- J-S17025-18
The court granted Nieves’ motion in part, allowing him 60 days to respond.
Nieves filed his response on June 20, 2016, again challenging plea counsel’s
effectiveness in suggesting that if he were convicted, Nieves, as a repeat felon,
would be sentenced to a mandatory 30 to 60 years in prison, and that as a
once-convicted felon, he would not be entitled to the presumption of
innocence.
Nieves wrote a second letter to the court on July 19, 2016, claiming he
was “not right mentally” when he tendered his plea due to his medicated
status, and counsel had suggested that he not admit to being medicated at
the colloquy. On July 22, 2016, the court entered an order directing PCRA
counsel to review Nieves’s Rule 907(1) response and his July 19, 2016 pro se
letter, and to advise the court whether Nieves was entitled to an evidentiary
hearing on whether plea counsel was ineffective for: (1) misadvising Nieves
of the applicable law; (2) failing to file a pretrial motion to suppress; and (3)
for counseling Nieves to plead guilty.
PCRA counsel complied and filed a letter to the court. Thereafter,
following another independent review of the record in light of Nieves’
supplemental claims and PCRA counsel’s response, the court issued a final
order on August 30, 2016 dismissing Nieves’ PCRA petition and granting
counsel’s petition to withdraw. This pro se appeal followed.
Nieves raises the following issue for our review:
Whether this pro se brief upon appeal from the PCRA court’s August 30, 2016, final dismissal order merits redress is a question of exceptional circumstances and the law?
-3- J-S17025-18
Appellant’s Brief, at 2.
Essentially, Nieves is challenging the PCRA court’s order dismissing his
petition without a hearing to determine if his guilty plea was invalid due to
plea counsel’s ineffectiveness. We review such a decision for an abuse of
discretion. Commonwealth v. Wah, 42 A.3d 335, 338 (Pa. Super. 2012).
A petitioner’s right to an evidentiary hearing on a post-conviction
petition is not absolute. “It is within the PCRA court’s discretion to decline to
hold a hearing if the petitioner’s claim is patently frivolous and has no support
either in the record or other evidence.” Id., quoting Commonwealth v.
Turetsky, 925 A.2d 876, 882 (Pa. Super. 2007) (internal citations omitted);
see also Pa.R.Crim.P. 907. “The controlling factor . . . is the status of the
substantive assertions in the petition. Thus, as to ineffectiveness claims in
particular, if the record reflects that the underlying issue is of no arguable
merit or no prejudice resulted, no evidentiary hearing is required.”
Commonwealth v. Baumhammers, 92 A.3d 708, 726–27 (Pa. 2014)
(citations omitted).
Nieves has set forth a comprehensive argument in his pro se brief,
outlining his claims of ineffectiveness of both plea counsel and appointed PCRA
counsel. Nieves argues this Court should remand for a hearing to determine
whether sufficient evidence exists of his “medically impaired mental status at
the time of the negotiated plea deal,” and whether plea counsel advised him
that he would not be entitled to the presumption of innocence and would be
subject to a mandatory 30-60 year sentence. Appellant’s Brief, at 11, 15-17.
-4- J-S17025-18
After our review of the parties’ briefs, the record, and the relevant law,
we agree with the PCRA court’s determination that there were no genuine
issues of material fact with respect to Nieves’ claims of ineffectiveness. The
record of the verbal guilty plea colloquy and the written guilty plea colloquy
belies Nieves’ claims that he was manipulated and coerced into entering a
guilty plea. Nieves stated that he was a high school graduate, was not under
the influence of “any drugs, alcohol or medicine,” and that he did not suffer
from any mental illness “or anything else that would cause [him] not to
understand[.]” See N.T. Guilty Plea Colloquy, 7/17/15, at 3. He also stated
that he understood that he was “presumed to be innocent[.]” Id. at 4. At
the colloquy, Nieves admitted to the three gunpoint robberies, id. at 5, 7, and
stated that he was satisfied with plea counsel’s services. Id. at 10. See also
Written Plea Colloquy, 7/17/15, at 6; Pa.R.Crim.P. 590.
“Our law presumes that a defendant who enters a guilty plea was aware
of what he was doing. He bears the burden of proving otherwise.”
Commonwealth v. Pollard, 832 A.2d 517, 522–23 (Pa. Super. 2003). The
record clearly demonstrates that Nieves understood the nature of the charges
against him, and therefore “the voluntariness of the plea is established.”
Commonwealth v. Rush, 909 A.2d 805, 808 (Pa. Super. 2006). “A person
who elects to plead guilty is bound by the statements he makes in open court
while under oath and may not later assert grounds for withdrawing the plea
which contradict the statements he made at his plea colloquy.”
Commonwealth v. Yeomans, 24 A.3d 1044, 1047 (Pa. Super. 2011).
-5- J-S17025-18
With respect to his claim that plea counsel advised him to lie when the
court asked whether he was medicated, and was ineffective in telling him he
would not be entitled to the presumption of innocence due to a prior felony
conviction, Nieves essentially asks this Court to accept that he perjured
himself at the colloquy. As illustrated above, Nieves acknowledged that he
was presumed innocent at the colloquy, and this was also affirmed in the
written colloquy, which stated: “I am presumed innocent, and if the
Commonwealth cannot prove me guilty beyond a reasonable doubt I must be
set free on these charges.” Written Guilty Plea Colloquy, 717/15, at 7. Nieves
initialed that line, and signed his name at the bottom of the page. Id. at 7.
We conclude, therefore, that the PCRA court did not abuse its discretion
in dismissing the petition without a hearing. Wah, supra. See
Commonwealth v. Bryant, 855 A.2d 726 (Pa. 2004) (PCRA court may deny
petition without hearing if following review of petition it determines hearing
would serve no purpose); see also Pa.R.Crim.P. 907(1). We affirm the PCRA
court’s order dismissing Nieves’ petition without a hearing based on Judge
Sarcione’s opinion. The parties are directed to attach a copy of that opinion
in the event of further proceedings.
Order affirmed.
-6- J-S17025-18
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 4/16/18
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COMMONWEALTH OF PENNSYLVANIA : IN THE COURT OF COMMON PLEAS
vs. : CHESTER COUNTY, PENNSYLVANIA NOEL NIEVES : NOS. 15-CR-0000858-2015; 15-CR-0003829-2014
: CRIMINAL ACTION-PCRA Nicholas J. Casenta, Jr., Esquire, Chief Deputy District Attorney, for the Commonwealth Noel Nieves, Defendant, Pro Se
OPINION R RULE 1925 rr I
.) Before the Court is Defendant Noel Nieves' timely*,0eaL.Vom nyr August 30, 2016 Order denying and dismissing his first PCRA Petiti6C Delend4i filed hi rz) Notice of Appeal effective September 24, 2016, the date on which te attests in th Certificate of Service attached to his Notice that he placed his Notice of Appeal in th prison mail system, thereby satisfying the requirements of service under the 'Prisone Mailbox Rule.' See Commonwealth v Little, 716 A.2d 1287 (Pa. Super. 1998)(discussin Prisoner Mailbox Rule). Defendant's Notice of Appeal was thus timely filed within th thirty (30) day period following the entry of this Court's final Order disposing of his PCR Petition, as required by Pa. R.A.P. 903(a). See Pa. R.A.P. 903(a)("Except as otherwis prescribed by this rule, the notice of appeal required by Rule 902 (manner of takin
appeal) shallte filed within 30 days after the entry of the order from which the appeal i
taken."). Because Defendant appended to his Notice of Appeal a list of the issues o
which he was complaining, we did not deem it necessary to order a Concise Statement pursuant to Pa. R.A.P. 1925(b). Having reviewed the issues Defendant has raised
appeal in light of the record and the relevant constitutional, statutory and decisional law J di LIU! iewneves Noel 1" PCRA 1925a.docx a
we are now prepared to issue the following recommendation with respect to the merits of Defendant's appeal pursuant to Pa. R.A.P. 1925(a).
I. FACTUAL AND PROCEDURAL HISTORY
On July 15, 2015 Defendant tendered a counseled negotiated guilty plea t' one (1) count of Robbery, 18 Pa. C.S.A. § 3701(a)(1)(ii) (Count 1), graded as a Felony o the First Degree (F-1), at docket number 15-CR-0003829-2014 and two (2) counts f Robbery, 18 Pa. C.S.A. § 3701(a)(1)(ii) (Counts 22 and 21, respectively), graded a
Felonies of the First Degree (F-1's), at docket number 15-CR-0000858-2015. The factu I
basis recited in the Verbal Guilty Plea Colloquy set forth the following predicate for plea.
With regard to term number 3829 of 2014, on October 22nd of 2014, at approximately 9:50 p.m., the defendant went to the Shell station at 101 East Chestnut Street in Coatesville, Chester County, Pennsylvania where he made contact with employees, Michael Brown and Claude Edwards, C -L -A-U -D- E.
_ The defendant_approached wearing a mask, pointed_what _ appeared to be a gun at them and stated both of _
you get back in the store. They walked back into the store. He ordered them to the ground and told Mr. Brown to open the safe. Mr. Brown told him he didn't have the key and told the defendant to take the money in the register and leaVe. The defendant told them to get on the ground again. And once on the ground, Mr. Brown said he was tased in the forehead. And then the defendant tased Mr. Edwards in the side. The defendant grabbed a drawer with approximately four hundred dollars in it and ran out the back of the store.
On 858 of '15, on October 15th of 2014 the defendant went to the Hair Cuttery at 3927 Lincoln Highway in Cain Township, Chester County, Pennsylvania at approximately 9:00 p.m.
-2- s: \unto \sarcione \Nieves Noel 1" PCRA 1925a.docx
And the defendant approached Ms. Brittany Daily, B -R -I -T -T- A-N -Y D -A -I -L-Y and Alliah Lacy, A-L-L -I -A -H L -A -C -Y, who were employees of the Hair Cuttery, with what appeared to be a black semi -automatic handgun which he pointed at them and said where is the money bag? The defendant punched Ms, Daily on the left side of her face. And they told him that the money was with another employee still in the store. The defendant then fled the area.
Also on that date and around the same time, the defendant went to the Pizza Hut located at 1809 Lincoln Highway also in Caln Township, Chester County, Pennsylvania. That is located approximately one and a half miles from the Hair Cuttery. The defendant went there and made contact with employees Michael Hashem, H -A-S -H -E-M and Elizabeth Cosella, C -O -S -E-L -L -A. Ms. Cosella was working at the cash register when the defendant approached and pointed what appeared to be a gun in her face while wearing a mask and a gray hood ie.
The defendant told her to give him the money, give him the money and punched her in the face, yelled at her to give him the money again. She opened the register drawer and the defendant all the cash inside of it, nine hundred me - three hundred ninety-six dollars from the -gave excuse delivery register.
THE COURT: He didn't get anything at the. Hair Cuttery,________
[THE PROSECUTOR]: Correct. The two employees he approached did not have the money. And he fled without entering the store in that instance.
(Verbal Guilty Plea Colloquy and Sentencing Hearing, 7/17/15, N.T. 4-7). Defenda admitted to committing these acts as outlined by the Commonwealth. (Verbal Guilty Ple Colloquy and Sentencing Hearing, 7/17/15, N.T. 5, 7; Written Guilty Plea Colloqu 7/17/15, at 2, 5). Importantly to the instant proceedings, the following exchang
occurred.
THE COURT: How did the police get to this fellow?
3 s:\admin\sarcione\Nieves Noel 161 PCRA 1925a.docx
[THE PROSECUTOR]: There was a video at one of the stores, Judge, that showed, although the defendant's face was covered, there was a general description that was able to be provided. And he has a sleeve tattoo on his right arm that was exposed in some of the video footage. It has distinct patterning on it. The police, actually the county detectives ran a search in the database, for someone who fit the rough description of the defendant, the description that was provided at the scene, who lived in the Downingtown area and who had a right arm tattoo and looked for a right arm tattoo that matched. And they found the defendant in the system. They found his tattoo. And they took it to a tattoo artist in the area who was able to confirm that based on the shading and comparison between the photo of the defendant and his tattoo and video footage, that was in fact the same tattoo.
[PLEA COUNSEL]: And then they got a warrant and went to the house and found incriminating evidence.
[THE PROSECUTOR]: That was the back end of it. That was how they originally - CI THE COURT: They found the taser, [M]r. Jurs? e 01\ g
[PLEA COUNSEL]: No, a stun gun similar to that.
(Verbal Guilty Plea and Sentencing Hearing, 7/17/15, N.T. 8-9).
In accordance with the terms of Defendants negotiated plea agreement, w
sentenced Defendant on July 17, 2015 on Count 1, Robbery, at docket number 15-C
0003829-2014 to ierve a term of ten (10) to twenty (20) years' imprisonment in a Stat
Correctional Facility. This sentence did not represent a mandatory minimum. At ter
number 15-CR-0000858-2015, we sentenced Defendant on July 17, 2015 to serve a ter
of ten (10) to twenty (20) years' imprisonment in a State Correctional Facility for the crim
of Robbery at Count 22, to run concurrently with the sentence imposed at docket number
15-CR-0003829-2014. Again, this sentence did not represent a mandatory minimum.
On Count 21, again a Robbery conviction, we sentenced Defendant to serve a term f
-4- s:wornin \sarcione \ Nieves Noel 15' PCRA 1925a.docx
ten (10) years' probation, to run consecutively to the sentence imposed on Count .1 a
docket number 15-CR-0003829-2014. Thus, Defendant's aggregate sentence is two (2 concurrent terms of ten (10) to twenty (20) years' imprisonment in a State Correctional Facility, followed by ten (10) years of consecutive probation. We gave Defendant credit for times served from October 23, 2014 to July 17, 2015. We ordered Defendant to pa the costs of prosecution and three (3) ten dollar ($10.00) fines. We directed Defendant t pay ten dollars ($10.00) in restitution to the Shell station and three hundred ninety-six dollars ($396.00) to the Pizza Hut. We directed that Defendant have no contact with an of the victims. Finally, we ordered him to provide a DNA sample and pay the requisit fee associated therewith and to submit to a drug and alcohol evaluation and follow a I
recommended treatment. Defendant was advised of his post -sentence rights, includin his right to file a post -sentence motion within ten (10) days of sentencing, both orally o the record at the Verbal Guilty Plea and Sentencing Hearing and in writing in his Written Guilty Plea Colloquy. (Verbal Guilty Plea and Sentencing Hearing, 7/17/15, N.T. 19-21 Written Guilty Plea Colloquy, 7/17/15, at 8-9).
Defendant did not file a post-sentence motion or take a direct appeal..
Consequently; for PCRA purposes, Defendants Judgment of Sentence became final on August 16, 2015, thirty (30) days after the imposition of sentence without a post-sentenc motion or direct appeal being filed. See 42 Pa. C.S.A. § 9545(b)(3)("For purposes of thi subchapter, a judgment becomes final at the conclusion of direct review, includin' discretionary review in the Supreme Court of the United States and the Supreme Court o Pennsylvania, or at the expiration of the time for seeking the review."); Pa, R.A.P. 903(a)("Except as otherwise prescribed by this rule, the notice of appeal required by Rul
-5- s:\admin \sarcione \ Nieves Noel lst PCRA 1925a.docx
902 (manner of taking appeal) shall be filed within 30 days after the entry of the ord from which the appeal is taken.").
On November 4; 2015, Defendant filed a timely PCRA Petitio Defendant's Petition referenced only docket number 15-CR-0003829-2014. In hi
Petition, Defendant claimed that his plea counsel was ineffective for failing to file a pr trial motion to suppress evidence on the grounds of racial profiling, for failing to file a pr trial motion to suppress challenging identification evidence, that his plea agreement wa the product of manipulation and coercion by plea counsel, that plea counsel wa ineffective for failing to develop a strategy to support Defendant's alleged claim of actu I
innocence, that plea counsel failed to file a requested post -sentence motion f modification, that his plea agreement was "the result of unethical behavior or activity" o the part of plea counsel, whom he alleged was "partial to the police" and "deliberate! manipulated the [Defendant] into taking a Plea of Guilt[.]" Defendant attached to hi Petition (1) a letter from plea counsel dated February 25, 2015 regarding variou
developments in Defendant's case, including plea counsel's filing- of a --Motion f Discovery, (2) a letter from plea counsel dated June 1, 2015, in which plea couns represents that he "will be filing suppression motion [sic] regarding the search warrants i
which we will ask the Judge to suppress all items seized from your residence and car[ and (3) a letter from First Assistant Public Defender Nathan M. Schenker, Esquire date August 17, 2015 indicating that Defendant's letter request for a motion for modificatio was received by his office on August 13, 2015, well beyond the period for filing a time! post -sentence motion. Mr. Schenker advised Defendant in this letter that due to hi
having entered a negotiated guilty plea, and having completing the lengthy and comple
-6- s: wammsarcione \Nieves Noel 1" PCRA 1925a.docx
process which that requires, there was essentially no basis for filing a motion for modification and that the time period for seeking such modification had already expired. Mr. Schenker advised Defendant in this letter that Defendant could proceed by filing
PCRA Petition within one (1) year of his date of sentence.
On November 6, 2015 we issued an Order, captioned only with docke number 15-CR-0003829-2014, appointing PCRA Counsel for Defendant. On January 2 2016, PCRA Counsel filed a Petition to Withdraw as PCRA Counsel. On March 8, 2016, after conducting an independent review of the record, we determined that there were n
genuine issues concerning any material fact and that PCRA relief was not warranted, an issued a Notice of Intent to Dismiss PCRA Petition Pursuant to Pa. R.Crim.P. 907(1). On March 4, 2016 the Defendant wrote a pro se letter to the Court, whic we received and filed with the Clerk of Courts on March 11, 2016, directing that Office t
forward a copy of Defendant's March 4, 2016 to counsel. In his March 4, 2016 lette
Defendant protested his actual innocence, challenged the accuracy of the evidence use to identify him, claimed that there was exculpatory evidence that was not provided to th Court in the form of a cigarette butt found at the scene of the one of the Robberies whic -did not contain -a match of his DNA, and stated that his plea counsel told him that if he di
not plead he would be convicted and would face thirty (30) to sixty (60) years in priso and that he should just "take the deal" so that he will still be able to see his son, at whic
point Defendant stated that "i [sic] got scared and gave up on myself." (Deft,'s Lettei 3/4/16, at 1). Defendant also claimed that he was diagnosed with ADHD and Bi-Pola Disorder as a child and that, although he denied on the record at his guilty plea colloqu that he was on any medication, "the truth was" that he was on medication at the time
-'7 s:\admin\sarcione\Nieves Noel PCRA 1925a.docx
his plea and was under distress and could not "focus right" during his guilty plea colloqu
(Deft.'s Letter, 3/4/16, at 1). Defendant wrote both docket numbers 15-CR-0003829
2014 and 15-CR-0000858-2015 on his March 4, 2016 letter.
On March 11, 2016, based on Defendant's March 4, 2016 letter, we issue
an Order amending the caption of our November 4, 2015 Order to reflect both dock t
numbers and directing that Defendant's PCRA Petition shall be deemed to have been
filed to both dockets effective November 4, 2015. Our March 11, 2016 Order als
vacated our previous March 8, 2016 Rule 907(1) Notice, directed the Office of the Cler
of Courts of Chester County to forward a copy of Defendant's March 4, 2016 letter t
counsel, and directed that PCRA Counsel review Defendant's March 4, 2016 letter an
file, within forty-five (45) days of the Order, either an Amended PCRA Petition or
Petition for Leave to Withdraw as Counsel.
On March 17, 2016, PCRA Counsel filed a letter to the Court in which he
advised the Court that his review of Defendant's PCRA Petition prior to the filing of hi
January 27, 2016 Petition for Leave to Withdraw as PCRA Counsel had encompasse
both dockets already. Stating that he had addressed Petitioner's claims of actu
innocende in his prior Petition for Leave to Withdraw as PCRA Counsel, PCRA Couns
addressed the issue concerning Defendant's medication by noting that at the Verb
Guilty Plea Colloquy Defendant had advised the Court that he did not suffer from ment
illness and that he was not under the influence of any drugs or medications. (Verb
Guilty Plea Colloquy, 7/17/15, N.T. 3). PCRA Counsel requested that his January 2
2016 Petition for Leave to Withdraw as PCRA Counsel be reinstated, that Defendant'
first PCRA Petition be dismissed, and that he be allowed to withdraw from representatio
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On April 1, 2016, after conducting another independent review of the
record, we determined that there were no genuine issues concerning any material faot
and that PCRA relief was not warranted, and issued a Notice of Intent to Dismiss PCR
Petition Pursuant to Pa. R.Crim.P. 907(1). In accordance with Pennsylvania Rule o
Criminal Procedure 907(1), we gave Defendant twenty (20) days in which to respond t
our Rule 907(1) Notice,
On April 20, 20161 Defendant filed an "Emergency Motion for Enlaregmen
[sic] of Time", seeking additional time in which to respond to our Rule 907(1) Notic
Specifically, Defendant requested one hundred and twenty (120) days in which t
respond to our Rule 907(1) Notice. In his "Emergency Motion", Defendant als
challenged the stewardship of PCRA Counsel. Defendant appended to his "Emergency
Motion" another copy of the February 25, 2015 letter written by plea counsel and a letter
by Defendant to PCRA Counsel dated April 6, 2016 in which Defendant claimed he wa
actually innocent of the crimes to which he pled, challenged the accuracy of th
identification evidence against him, challenged plea counsel's stewardship for failure t
call a particular witness by the name of "Charlie" in his favor, and raised allegations o . , defeatS in the execution of the search warrant at the Defendant's residence. DefendanIt
also again claimed in this letter that a cigarette had been found at one of the crim
scenes and his DNA had been tested and it was determined that there was no matt
Defendant suggested that the negative results implied that he was excluded from th
scene of the crime, thereby exculpating him, and his incarceration is therefor
Defendant's Motion was received by the Clerk of Courts on April 25, 2016; however, the letter In which It was sent bore a postmark of April 20, 2016. Accordingly, under the Prisoner Mailbox Rule, we deemed Defendant's letter to have been filed on April 20, 2016. See Commonwealth v. Little, 716 A.2d 1287 (Pa. Super. 1998).
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unconstitutional. He claims his plea counsel was aware of the DNA test results. Finall
Defendant stated that he was heavily medicated for ADHD and tai -Polar Disorder at th time he entered his plea and that, as a result, his plea could not have been knowin
voluntary or intelligent. He also attached to his Motion two (2) pictures, one of whic
according to his April 6, 2016 letter to PCRA Counsel, is a copy of surveillance video, an
the other of which, again according to Defendant's April 6, 2016 letter to PCRA Counse
is a picture of the Defendant's tattooed forearm. Defendant alleges that the Count
Detectives took the photograph on the day they executed the search warrant at hi
residence.
On May 10, 2016 we granted Defendant's .Motion in part and denied it in
part; We denied Defendant's request for one hundred and twenty (120) days in which t
respond to our Rule 907(1) Notice, but gave him sixty (60) days from the April 21, 201
expiration of his original twenty (20) day response period in which to file his Rule 907(1
response, making his response due on or before June 20, 2016.
On June 20, 2016, Defendant filed his Rule 907(1) Response. In his Rul
907(1) Response, Defendant again challenged the stewardship of PCRA Counsel, who
he claimed did not adequately investigate Defendant's issues, failed to remedy th
defects in Defendant's PCRA Petition, and failed to adequately meet or speak with th
Defendant to discuss the status of the Defendant's PCRA Petition. Defendant als
claimed that his plea counsel coerced his plea by advising him (a) that his chances of a
acquittal if he went to trial were "close to 0", (b) that Defendant, as a once convicte
Felon, would not be entitled to the presumption of innocence, and (c) that, if convicte
Defendant would be sentenced under the "Repeated Offender Act" [sic] to a mandato
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thirty (30) to sixty (60) years in prison. Defendant claimed that his plea counsel wa
ineffective for failing to file a motion to suppress the evidence obtained as a result of th
police execution of a search warrant at his residence on the grounds that the search wa
conducted in violation of the Fourth Amendment because the police only gav
Defendant's wife, who is not the homeowner, according to the Defendant, a "quick look
glance" at the warrant after ordering Defendant and his family to vacate the premises an
by conducting the search while Defendant, who claims to be the sole homeowner, wa
not present in the home. Defendant also claimed that his plea counsel induced him to lie,
by means of "subliminal suggestion", about his mental health and medication status a
the Verbal Guilty Plea Colloquy. Defendant claimed that his plea counsel, allegedly in
violation of Lefler v. Cooper, 132 S.Ct. 1376 (U.S. Mich. 2012) and Missouri v. Rye, 131
S.Ct. 1399 (U.S. Mo. 2012), cert. denied, 132 S.Ct, 1789 (U.S. Mo. 2012), insisted thalt
"[Defendant] and his family should not question or attempt to interfere with his method
for they know nothing of the legal ramifications at work and to simply rely upon his legal
expertise because he ((plea counsel]), must do what's necessary to apiese [sic] bot
[Defendant] and the Commonwealth." (Deft.'s Rule 907(1) Response, 6/20/16, at 3, par
"A"). Defendant claimed that his plea counsel failed to develop an informed opinio
about the course of action Defendant should pursue in this matter, as allegedly require
by Von Moltke v. Gillies, 68 S.Ct. 316 (U.S. Mich. 1948). Finally, Defendant claimed th
plea counsel failed to inform him of his basic sentencing liabilities and othe
considerations so as to enable Defendant to make an informed decision about whether t
accept or reject the Commonwealth's plea offer. Defendant requested that th
undersigned to allow further PCRA proceedings, appoint new PCRA Counsel, and vacat
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Defendant's conviction and sentence pending the resolution of whether Defendant's plea
was voluntary and "free from the influence of, powerful narcotics". (Deft.'s Rule 907(1)
Response, 6/20/16, at 5).
On July 18, 2016 Defendant wrote a pro se letter to the Court, which we
received and filed with the Clerk of Courts on July 22, 2016. In his pm se lette ,
Defendant claimed that he was "not right mentally" when he tendered his plea becaus
he was on medication and that his plea counsel knew he was on medication and told hi
not to admit it in order to "falsly [sic] convinc[e] [him] to perjur [sic]" himself. Defendarit
requested a copy of his prison medical records and other discovery in order to show that
his plea was not knowingly, voluntarily and intelligently entered. He attached to his lett r
a "Letter in Application" addressed to the "official court reporter/tourt stenographe '
seated For The Honorable Anthony A. Sarcione" in which he set forth under the titl
"Requisition" all of the items of discovery he wished to have provided to him.
On July 22, 2016, we issued two Orders. One Order was issued i
'response to Defendant's request in his July 18, 2016 pro se letter for free copies of hi
court records and transcripts. We denied Defendant's request, noting that so long as th
Defendant's attorney had access to the requested items, Defendant's right to free copies
of these items was satisfied. Sullivan v. Sokolski, 1994 WL 105526 (ED. Pa. 1994
aff'd, 40 F.3d 1241 (3rd Cir. Pa. 1994); Gay v. Watkins, 579 F. Supp. 1019 (E.D. P
1984). As Defendant indicated in his pro se letter that he was making this request in
order to demonstrate that his guilty plea could not have been knowingly, voluntarily an
intelligently entered due to the alleged medicated status at the time he entered his ple
we also added that Defendant's argument had no merit because of the long-standing rul
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in Pennsylvania that a defendant may not challenge his guilty plea by asserting that h
lied under oath, even if he avers that his counsel induced the lies. See Commonwealth
Yeomans, 24 A.3d 1044 (Pa. Super. 2011), reargument denied (August 18, 2011). W
then quoted from that portion of the Verbal Guilty Plea transcript which demonstrates tha
Defendant advised the Court during his Verbal Guilty Plea that he was not under th
influence of any drugs, alcohol or medicine. (See Guilty Plea and Sentencing Transcrip ,
7/17/15,'N.T. 3).
Our second Order dated July 22, 2016 directed PCRA Counsel to revie
Defendant's Rule 907(1) Response and his pro se July 18, 2016 letter and advise th
Court in writing within thirty (30) days of the date of the Order whether Defendant wa
entitled to an evidentiary hearing on the following issues: (a) whether plea counsel
misadvised the Defendant of the applicable law; (b) whether plea counsel was ineffectiv
for failing to file a pretrial suppression motion; and (c) whether plea counsel wa
ineffective for counseling Defendant to plead guilty.
On August 22, 2016 PCRA Counsel filed a letter to the Court addressing
the three (3) issues we directed him to review in our July 22, 2016 Order. PCRA Couns I
attached a letter frorn plea counSel in which plea counsel denied ever telling th
Defendant that he would not be entitled to the presumption of innocence, asserted tha
he reviewed the search warrant executed by the police on Defendant's property an
found no issues that would warrant relief by the Court, and explained his reasons for
advising Defendant to accept the Commonwealth's plea offer.
After conducting another independent review of the record in light of all of
the issues raised by the Defendant in his Petition and supplemental filings and all of th
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analyses by PCRA Counsel, including the letter from plea counsel attached to his fin -I recommendation, we issued a final Order dismissing the Defendant's first PCRA Petitio on August 30, 2016.
On September 24, 2016 the Defendant placed his Notice of Appeal in th prison mail system, thereby satisfying the requirements of Pa. R.A.P. 903(a) pursuant t
the Prisoner Mailbox Rule. See Commonwealth v. Little, 716 A.2d 1287 (Pa. Supe .
1998)(regarding Prisoner Mailbox Rule). Attached to his Notice of Appeal, Defendarlt
appended a statement of the issues he wished to raise on appeal. Because Defenda filed this statement of his claims, we did not request a Concise Statement of Error Complained of on Appeal pursuant to Pa. R.A.P. 1925(b). 1;(
In his Statement, Defendant raised the following issues, Defendant claime that PCRA Counsel abandoned him and failed to conduct an adequate investigatio which he suggests would have had to include a personal meeting or conference with th Defendant, into Defendant's PCRA claims, including Defendant's claim that he wa
actually innocent of the crimes to which he pled and that his plea was not knowing] voluntarily or intelligently entered due to his alleged medicated status and due to ple counsel% -alleged maniPulatiVe and coercive' tactics'. Defendant claimed that ple counsel violated Lefler v. Cooper, 132 S.Ct. 1376 (U.S. Mich. 2012) and Missouri v. Frye, 132 S,Ct. 1399 (U.S. Mo. 2012), cert. denied, 132 S.Ct. 1789 (U.S. Mo. 2012) by insistin
that Defendant and his family "not question or attempt to interfere with his methods f they know nothing of legal ramifications at work and to simply rely upon his leg I
expertise because he ((plea counsel)), must do what's necessary to apiese [sic] bot [Defendant] and the Commonwelath." (Deft's Statement, 9/24/16, at 4, para.
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Defendant claimed that he was deprived of the effective assistance of counsel during th pretrial and plea bargaining phases of his prosecution and that plea counsel compelle Defendant's plea without Defendant's understanding and consent, in violation of the Fift Sixth and Fourteenth Amendments to the United States Constitution and Article I, §§ and 14 of the Pennsylvania Constitution. Finally, Defendant claimed that his ple counsel violated Von Moltke v. Gillies, 68 S.Ct. 316 (U.S. Mich. 1948) by failing "to get a opinion with the specifity (sic] and explicitness that the standards require, counsel als failed to educate [Defendant] about his basic sentencing liabilities." (Deft.'s Statemen 9/24/16, at 5). In essence, as near as we can decipher, Defendant claim is that ple counsel did not offer him adequate advice with respect to his options of going to trial or taking a plea and did not advise Defendant about his sentencing exposure under th Statewide Sentencing Guidelines.
Having reviewed the record in light of the relevant constitutional, statuto and decisional law, we are now prepared to issue the following recommendations wit regard to the merits of Defendant's PCRA appeal.
II. DISCUSSION
A. Claims raised in November 4, 2011 PCRA Petition
We will begin our analysis with the claims Defendant raised in his November 4, 2011 PCRA Petition.
Concerning Defendant's claim that plea counsel was ineffective for failing t file a pre-trial motion to suppress, whether on the grounds of racial profiling or improperl obtained evidence, including identification evidence, Defendant waived his right to fil pre-trial motions by tendering a negotiated guilty plea. See Commonwealth v. Reich! - 15 - s:\admin\sarcione\Nieves Noel 1.5` PCRA 1925a.docx
589 A.2d 1140 (Pa. Super. 1991)(generally, a plea of guilty amounts to a waiver of a I defects and defenses except those concerning the jurisdiction of the court, the legality the sentence, and the validity of the plea). In his Written Guilty Plea Colloquy, Defendart acknowledged that he was waiving his right to file pre-trial motions as a result if tendering his plea. In paragraph 20 of Defendant's Written Guilty Plea Colloqu Defendant acknowledged the following.
If I went to trial, I would have the right to file motions the Court for many different asking kinds of relief. Some of these would be motions to quash or dismiss the charges against me for lack of evidence or for procedural defects; to suppress the use of evidence against me because it was obtained unconstitutionally, as for instance by improper an illegal search and questioning or seizure; and to ask, that evidence suppressed because it was be improperly obtained, such as identification testimony. There could be If I file such pre-trial other motions, also. applications, a Judge will have to rule on them before the case could go to trial. I am willing to give up these rights.
(Written Guilty Plea Colloquy, 7/17/15, at 6, para. 20)(emphasis added). Defendart _signed his initials on the_line to the bottom right of this paragraph and signed his name on the line at the bottom of the page immediately below this paragraph. (Written Guilty Ple Colloquy, 7/17/15, N.T. 6). Defendant ackpowledged and agreed to the waiver of his rig to file pre-trial motions in exchange for the tender of his guilty plea. There is n substantive merit to Defendant's claim. See Commonwealth v. Williams, 899 A.2d 106 (Pa. 2006)(regarding three (3) prong test for ineffective assistance of counsel). With respect to Defendant's claim that counsel was ineffective for coercin and manipulating him into accepting the Commonwealth's plea offer, the Verbal an Written Guilty Plea Colloquies belie the veracity of his claim. At the Verbal Guilty Ple
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Colloquy, the Court asked the Defendant, "Has anyone threatened or forced you to pleao guilty?", to which Defendant responded, "No, sir." (Verbal Guilty Plea Colloquy, 7/17/15, N.T. 11). The Court then asked the Defendant, "Other than the promise contained in the plea agreement, has anyone promised you anything else to induce you to plead guilty?" to which the Defendant responded, "No." (Verbal Guilty Plea Colloquy, 7/17/15, N.T. 11). In the Written Guilty Plea Colloquy, Defendant signed his initials2 on the line provided to the right of the following statements.
VOLUNTARINESS OF PLEA:
I agree that:
17. No one has used any force me in order to get me to enter or threats against this plea of guilty. Vsi NN 18. No promises have been made get me to enter this plea other to me in order to than what is set forth in the plea bargain agreement, if any, on page 3 and 4 of this guilty plea form. Vs/I NN
_(Written Guilty Plea_Colloquy, 7/17/15,_at 6).__Defendant alsosignecl _his name on_the lin provided at the bottom of the page containing these two paragraphs. (Written Guilty Ple Colloquy, 7/17/15, at 6). Further, in the Verbal Guilty Plea Colloquy the Court asked th 2 This Court asked Defendant on the record at the Verbal Guilty Plea colloquy?", to which Defendant Colloquy, "Did you sign and Initial the guilty responded, "Yes, I have." (Verbal pie' followed up by asking Defendant, Guilty Plea Colloquy, 7/17/15, N.T. "Old you review It with Mr. Jurs 11). W (Verbal Guilty Plea Colloquy, (plea counsel) before you signed 7/17/15, N.T. 11). Defendant again and Initialed it?' 7/17/15, N.T. 11). The end of the responded, "Yes." (Verbal Guilty Plea Written Guilty Plea Colloquy also contains Colioqu an attestation which reads:
AFFIRM THAT I HAVE RED THE I ABOVE DOCUMENT IN ITS UNDERSTAND ITS FULL MEANING, AND ENTIRETY AND I I AM STILL, ENTER A PLEA OF GUILTY TO THE NEVERTHELESS, WILLING TO OFEFNSES SPECIFIED. I FURTHER MY SIGNATURE AND AFFIRM THAT INITALS ON EACH PAGE OF THIS DOCUMENT ARE TRUE AND CORRECT.
(Written Guilty Plea Colloquy, 7/17/15, at 9). Defendant signed his of this paragraph. (Written name on the line provided below Guilty Plea Colloquy, 7/17/15, at 9). and to the righ
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Defendant, "Have you had time to discuss your case and go over things with Mr. Jur [plea counsel]?". (Verbal Guilty Plea Colloquy, 7/17/15, N.T. 10). Defendant replie "Yes, I have." (Verbal Guilty Plea Colloquy, 7/17/15, N.T. 10). The Court then aske "Are you satisfied with his services?", to which Defendant replied, "Yes." (Verbal Guilt Plea Colloquy, 7/17115, N.T. 10). Finally, in the Written Guilty, Plea Colloquy, Defenda t was asked, "Do you understand the charges against you'?" (Written Guilty Plea Colloqu 7/17/15, at 6, para. 15). Defendant wrote on the line to the right of this question, "Yes and placed his initials on the line immediately below his response. (Written Guilty Ple Colloquy, 7/17/15, at 6, para. 15). The Written Guilty Plea Colloquy then asked th Defendant, "Are you able to work with your lawyer in responding to those charges?", t which Defendant wrote "Yes" on the line to the right of the question and placed his initial on the line immediately below his response. (Written Guilty Plea Colloquy, 7/17/15, N. 6, para. 16). At the end of the Written Guilty Plea Colloquy, the Written Guilty Ple Colloquy contained the following paragraphs. TO MY LAWYER:
39. I have had enough time to charges with my lawyer, and I am discuss these that he has given me, and satisfied with the advice with his representation of before this Court. me [Ist] NN 40. I have gone over this attorney, and he has explained it document with my to me and answered any questions I have concerning it. [/s/] NN 41. I further agree that, although I assisted by my attorney, it is my have been own decision to enter the plea that I [am) making here today. [/s/] NN
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(Written Guilty Plea Colloquy, 7/17/15, at 9, paras. 39-41). Defendant signed his initial? on the lines provided to the right of each paragraph, and signed the affirmation belo acknowledging that
IAFFIRM THAT I HAVE READ THE ITS ENTIRETY AND I ABOVE DOCUMENT IN UNDERSTAND ITS FULL MEANING, AND I AM STILL, NEVERTHELESS, WILLING TO ENTER A PLEA OF GUILTY TO THE OFFENSES SPECIFIED. I FURTHER AFFIRM THAT MY ON EACH PAGE OF THIS SIGNATURE AND INITIALS DOCUMENT ARE TRUE AND CORRECT.
(Written Guilty Plea Colloquy, 7117/15, at 9). Defendant's claim that he was coerced an manipulated into entering his plea is contrary to his verbal and written averments at th Guilty Plea Colloquy. A defendant may not challenge his guilty plea by asserting that h lied to the Court under oath. Commonwealth v. Yeomans, 24 A.3d 1044 (Pa. Supe 2011), reargument denied (August 18, 2011). Defendant's claim that his counsel coerce and manipulated him into pleading guilty has no substantive merit. With respect to Defendant's claim that plea counsel was ineffective for falling to develop a strategy to support Defendant's alleged claim of actu I innocence, again we note that Defendant pled guilty. Defendant admitted on the record in open court that he committed the crimes that were the subject of the plea bargai (Verbal Guilty Plea Colloquy, cig 7/17/15, N.T. 5,, 7-8). He acknowledged in writing on th Written Guilty Plea Colloquy that "I admit committing the crimes to which I am pleadin guilty" and "I acknowledge that the facts occurred as set forth on page 2 of this form. (Written Guilty Plea Colloquy, 7/17/15, at 5). He signed each and every page of th Written Guilty Plea Colloquy, including the pages setting forth the offenses and th factual basis for the plea and placed his initials next to every numbered paragrap R729 '7-, s:\admin \sarcione\Nieves Noel 1st PCRA 1925a.docx
(Written Guilty Plea Colloquy, 7/17/15, at 1-9; Guilty. Plea and Sentencing Transcrip
7/17/15, N.T. 11). Never once did Defendant protest or even suggest in any way that h
was innocent of the crimes to which he was pleading.
Further, as plea counsel noted in his letter to PCRA Counsel, the evidence against the Defendant was strong. There was video surveillance footage of the crime showing the perpetrator to have the same distinctive tattoo that Defendant has on hi right arm, eyewitness despLiptions from the victims, and, at his home, according to th
Search Warrant Receipts/Inventories, Detectives found a cash register drawer, a stu gun, $427.00 in U.S. currency, various weapons and a pair of size 9 Timberland shoe-. Defendant has a prior conviction for. Robbery, for which he was sentenced to four (4) t eight (8) years in a State penitentiary and for which he was on State Parole at the tim
these crimes were committed. Defense counsel did not develop a strategy to suppo Defendant's alleged claim of actual innocence because Defendant never made such claim. Defendant's post -sentence attempt to raise such a claim now rings hollow in light
of his admissions during the negotiated guilty plea colloquy, the strength of th
Commonwealth's case, and his prior record.
"A guilty plea is not a ceremony of innocence, it is an occasion where one offers a confession of guilt." Commonwealth v. Watson, 835 A.2d 786 (Pa. Super. 2003 Further,
A defendant may plead guilty for any reason: to shield others, avoid further exposure, to diminish the penalty, to be done with the matter, or any secret reason that appeals to his needs. What is generally and most objectively accepted is that a plea is offered to relieve conscience, to set the record straight and, as earnest of error and repentance, to accept the penalty.
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Commonwealth v, Watson, 835 A.2d 786 (Pa. Super. 2003). Defendant's belate attempt to suggest that he is actually innocent of the crimes to which he pled afte extensive record oral and written colloquy is belied by the evidence. His attempt to cas aspersions upon counsel for failing to "develop a strategy" to support this spurious claim is without merit.
Turning to Defendant's claim that plea counsel was ineffective for failing to file a post -sentence motion for modification, we note, as did First Assistant Publi
Defender Nathan M. Schenker, Esquire in his August 17, 2015 letter to the Defendan', that Defendant's request was not received by the Office of the Public Defender o Chester County until August 13,2015, well after the expiration of the ten (10) day perio provided by the Rules of Criminal Procedure for filing post -sentence motions. See P
R.Crim.P. 720(A)(1)("[A] written post-sentence motion shall be filed no later than 10 day after imposition of sentence."). (See also Verbal Guilty Plea Colloquy, 7/17/15, N.T. 2
_["You also have the right to file with this. Court, within ten days _of today in_writing, a post sentence motion."]; Written Guilty Plea Colloquy, 7/17/15, at 8, para. 34 ["I have ten (1
days from the date I arn sentenced within which to the optional motions with this Court fo post -sentence relief[.]"]). Further, Defendant tendered a negotiated guilty plea. Thi Court is unable to modify the terms of a negotiated plea at the unilateral request of eithe party. Commonwealth v. Coles, 530 A.2d 453 (Pa. Super. 1987), appeal denied, 55 A.2d 34 (Pa. 1989). Therefore, a post -sentence motion for modification would have bee
frivolous. Counsel cannot be deemed ineffective for failing to file a frivolous motion
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Commonwealth v. Vesay, 464 A.2d 1363 (Pa. Super. 1983). Defendant's claim djf
ineffective assistance of counsel has no substantive merit.
With respect to Defendant's claim that his plea agreement was "the result o unethical behavior or activity" on the part of plea counsel, whom he alleged was "part' I
to the police" and "deliberately manipulated the [Defendant] into taking a Plea of Guil "
(see Deft.'s PCRA Petition, 11/4/15, at 12, para. 2), we have already demonstrate
above, by Defendant's own admissions during the Verbal Guilty Plea Colloquy and i
writing in the Written Guilty Plea Colloquy, that counsel did not manipulate Defendant int
tendering a plea. Thus, Defendant's claim that his counsel's alleged manipulation of Defendant constitutes "unethical behavior or activity" on behalf of an attorney who is partisan of the police department has no substantive merit. To the extent th Defendant's allegations against plea counsel, a well -respected member of the Chester
County Public Defender's Office, of "unethical behavior or activity" and/or "partial[ity] t
the police" relate to some other unidentified . conduct on the part of counsel, the constitute undeveloped, generalized, boilerplate attacks upon the integrity of couns I
without any factual substantiation. As such, they do not support a claim for PCRA retie Commonwealth v. Natividad, 938 A.2d 310 (Pa. 2007)(a petitioner under the PCRA mu t
exhibit a concerted effort to develop his ineffectiveness claim and may not rely on boilerplate allegations of ineffectiveness).
For all of the foregoing reasons, the issues Defendant raised in hi November 4, 2015 PCRA Petition have no merit and will not support a claim for PCR
relief.
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B. Claims raised in March 4, 2016 Letter
The first claim Defendant raised in his March 4, 2016 pro se letter to th
Court is that he is actually innocent of the crimes to which he pled on July '17, 2015. W have already addressed the merits of this claim above. We would respectfull incorporate herein by reference and refer this Honorable reader to that portion of ou Opinion above that explains the reasons why we conclude that Defendant's assertion tha he is actually innocent of these crimes has no merit and does not warrant PCRA relief.
Defendant's second claim repeats his challenging to the accuracy of th identification evidence against him. Again, as we noted above, Defendant waived hi right to challenge the identification evidence against him by tendering a negotiated plea. See Commonwealth v. Reichle, 589 A.2d 1140 (Pa Super. 1991)(generally, a plea o guilty amounts to a waiver of all defects and defenses except those concerning th jurisdiction of the court, the legality of the sentence, and the validity of the plea). (Se also Written Guilty Plea Colloquy, 7/17/15, at 6, para. 20). We would respectful) incorporate herein by reference and refer this Honorable reader to that portion of ou Opinion above which addresses Defendant's waiver of his right to file pre-trial motions. We respectfully recommend for the reasons aforestated that Defendant'S Claim has n
merit and does not warrant PCRA relief.
The third issue Defendant raised in his March 4, 2016 pro se letter to th Court is that there is exculpatory evidence in this case that was not presented to th Court. This letter must be read in conjunction with the allegations he raised in his April 6, 2016 letter to PCRA Counsel that was appended to his April 20, 2016 motion for a extension of time in which to file is Rule 907(1) Response. Therein, Defendant
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delineates the basis of his claim. He claims that a cigarette butt was recovered from th scene of one of the crimes. He states that Detectives swabbed his mouth for DNA an tested the results. He states that the results came back negative. Defendant claims that this means he could not have been the perpetrator of the robberies. Defendant claim that his plea counsel knew the results of the DNA test "after the Chester Count Detectives retrieved a warrant for the DNA swab." (Deft.'s Emergency Motion for
Enlaregment [sic] of Time, 4/20/16, Attached Letter to PCRA Counsel dated April 2016, at 2). Importantly, Defendant is not claiming that the Commonwealth withhel exculpatory evidence from him,
Defendant is mistaken about the exculpatory value of the evidence h
describes. At best, the lack of a match between his DNA and the DNA on the cigarett butt means that he probably did not smoke that particular cigarette. It does not mean h
did not commit any of the three (3) armed robberies to which he pled. The factu I
predicate for these crimes do not include descriptions of the perpetrator smoking
c.) cigarette. The evidence Defendant claims exonerates him is not exculpatory. Had hi DNA been found on the cigarette, that would have made the Commonwealth's case eve stronger, which is probably why his DNA was tested. However, the fact that his DNA wa not found on the cigarette butt does nothing to exonerate him from the commission of these crimes.
Further, as we already stated, Defendant tendered a negotiated guilty plea. A guilty plea is an acknowledgement by a defendant that he participated in the commission of certain acts with a criminal intent. He acknowledges the existence of the facts and the intent. The facts that he acknowledges may or may not be within the powers of the Commonwealth to prove. However,
it -24-, s:\admin \sarcione \Nieves Noel ft PCRA 1925a.docx
the plea of guilt admits that the facts and intent occurred; and is a confession not only of what the Commonwealth might prove, but also as to what the defendant knows to have happened.
I
A guilty plea is not a ceremony of innocence, it is an occasion where one offers a confession of guilt. If a defendant voluntarily, knowingly, and intelligently wishes to acknowledge facts that in themselves constitute an 'offense, that acknowledgement is independent of the procedures of proving or refuting them. How they would be proved, what burdens accompany their proof, what privileges exist to avoid their proof, what safeguards exist to determine their accuracy, and under what rules they would be determined, by whom and how, are irrelevant. The defendant is before the court to acknowledge facts that he is instructed constitute a crime. He is not there to gauge the likelihood of their proof, nor to weigh them in the light of the available procedures for their proof. He is there to voluntarily say what he knows occurred, whether the Commonwealth would prove them or not, and that he will accept their legal meaning and their legal consequences.
Commonwealth v. Watson, 835 A.2d 786, 796-97 (Pa. Super. 2003)(emphasis omitted). Defendant admitted_that he committed_the crimes which were_the_subject of the ple colloquy. His plea was knowingly, voluntarily and intelligently entered. Assuming fo purposes of argument that the cigarette butt evidence was exculpatory, Defendant neve mentioned the existence of the cigarette butt, the DNA test, or the lack of a match in th
results to the Court. He did not assert his innocence in any way.
Because the lack of a DNA match on the cigarette butt is not exculpato
and because Defendant tendered a knowing, voluntary and intelligent plea, respectfully submit that the third issue Defendant raised in his March 4, 2016 pro s
letter to the Court has no merit and does not warrant PCRA relief. s:\admin\sarcione\Nieves Noel 1st PCRA 1925a.docx
The fourth issue Defendant raised in his March 4, 2016 pro se letter to th
Court claims that counsel was ineffective for advising Defendant that if he did not plea
he would be convicted and face thirty (30) to sixty (60) years in prison and that he shoul
just "take the deal" so that he will still be able to see his son. Defendant claims that as
result of this advice, he "got scared" and "gave up" on himself and accepted the pie
because he felt like no one was "on [his] side" in spite of all of the evidence that h
alleged demonstrates his actual innocence. (Deft.'s Letter to the Court, 3/4/16, at 1
Defendant's claims have no merit.
Plea counsel was not ineffective for advising the Defendant that if he wen
to trial, it was likely that he would be convicted. The Commonwealth's case was stron
Plea counsel has a duty to advise Defendant of his options, including the likelihood of hi
success if he chooses to go to trial. Plea counsel was not ineffective for giving th
Defendant his professional opinion in this regard. His advice to Defendant was n
outside the parameters of that which is expected of attorneys practicing criminal la
See Commonwealth v. Wah, 42 A.3d 335 (Pa. Super. 2012)(where the defendant enter
his plea on the advice of counsel, the voluntariness of the plea depends on wheth
counsel's advice was within the range of competence demanded of attorneys in criminal
cases).
With respect to the amount of time plea counsel advised Defendant he
could face, plea counsel's advice was likewise accurate. Indeed, the Court advised th
Defendant on the record in the Verbal Guilty Plea Colloquy that the maximum sentenc
he could receive on each offense to which he was tendering his plea was twenty (2
years in prison. (Verbal Guilty Plea Colloquy, 7/17/15, N.T. 12). The Court stated, "If yo
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were maxed out, you could receive sixty years in prison and seventy-five thousand
dollars in fines." (Verbal Guilty Plea Colloquy, 7/17/15, N.T. 12). Defendant's Prio
Record Score is RVOC. (Verbal Guilty Plea Colloquy, 7/17/15, N.T. 13). Further, the firs,
and second pages of Defendant's Written Guilty Plea Colloquy set forth the maximun
penalties Defendant faced if he went to trial and was convicted on each of the crimes t
which he pled. (Written Guilty Plea Colloquy, 7/17/15, at 1-2). The Written Guilty Ple
correctly identified these maximum penalties as twenty (20) years' confinement pe
Robbery, with maximum fines of $25,000.00 each as well. See 18 Pa. C.S.A.
1103(1)(Sentence of imprisonment for Felony of the First Degree). The maximum
recited were only for the offenses to which Defendant tendered his plea. Defendant wa
charged in the Informations at both dockets with many, many more offenses than th
three (3) Robberies to which he pled. Plea counsel has a duty to advise Defendant of hi
exposure in the event he chooses to go to trial and is convicted. There was nothin
inaccurate, misleading, coercive or manipulative about plea counsel's advice to th
Defendant that if he were convicted on the three offenses to which he was being asked t
plead alone he would face thirty (30) to sixty (60) years in prison. It is a faci that on thos
three (3) Robberies alone, Defendant could have received that much time in prison. It i
certainly understandable that Defendant might become "scared" and decide tha
accepting the Commonwealth's plea offer for two concurrent terms of ten (10) years i
prison followed by a ten (10) year probationary tail would be preferable to spending thirt
(30) years in prison, particularly in light of the strength of the Commonwealth's case. It i
also understandable that a desire to see his son grow up might influence his decisio
concerning the advantages of taking the plea. See Commonwealth v. Watson, 835 A.2
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786 (Pa. Super. 2003)("A defendant may plead guilty for any reason: to shield other
avoid further exposure, to diminish the penalty, to be done with the matter, or any secret
reason that appeals to his needs."). However, that does not make counsel's performanc
deficient. Counsel was not ineffective in any way for advising Defendant that he face
thirty (30) to sixty (60) years in prison if he went to trial on the charges for which th
Commonwealth was seeking the plea, or for pointing out to Defendant, if indeed he di
so, that a sentence of ten (10) years in prison would be more beneficial to him in terms
his ability to parent his son than would a sentence of at least thirty (30) consecutiv
years' incarceration. Counsel has a duty to advise Defendant of the advantages an
disadvantages of his respective options. As Defendant acknowledged in his Writte
Guilty Plea Colloquy, "I further agree that, although I have been assisted by my attorney,
it is my own decision to enter the plea that I [am] making here today." (Written Guilt
Plea Colloquy, 7/17/15, at 9, para. 41). Defendant's fourth claim of ineffective assistanc
of counsel has no substantive merit and will not support a claim for PCRA relief.
Finally, in Defendant's March 4, 2016 pro se letter to the Court, Defendant claime
that his guilty plea was not knowingly, voluntarily or intelligently entered becaus
contrary to what he advised the Court on the record at the Verbal Guilty Plea Collo4
he was on medication that impaired his ability to understand what he was doing and t
make rational judgments. This contention has no merit. The record reflects that durin
the Verbal Guilty Plea Colloquy, the following exchange took place.
THE COURT: And are you presently under the influence of any drugs, alcohol or medicine?
NOEL NIEVES: No.
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THE COURT: And do you suffer from any mental illness or anything else that would cause you not to understand me?
(Verbal Guilty Plea Colloquy, 7/17/15, N.T. 3). Defendant claims that he lied at th
Verbal Guilty Plea Colloquy at the instruction of plea counsel. As we pointed out in ou
July 22, 2016 Order issued in response to his July 18, 2016 letter requesting free copie
of his transcripts and court records, to prove that his plea was not voluntary due to hi
having been under the influence of mind -altering medication, "the longstanding rule o
Pennsylvania law is that a defendant may not challenge his guilty plea by asserting th It
he lied under oath, even if he avers that his counsel induced the lies." (Order, 7/22/16,
1)(Sarcione, J.)(citing Commonwealth v. Yeomans, 24 A.3d 1044 (Pa. Super. 2011),
reargument denied (August 18, 2011)). Further, this Court had the opportunity t
observe and speak with the Defendant on the record during the Guilty Plea Colloquy an
there was nothing about the. Defendants demeanor or responses that suggested to th
Court that his cognition was impaired in any way.__The final claim Defendant raised in hi
March 4, 2016 pro se letter to the Court has no merit and, like the others, will not suppo
P claim for PCRA relief.
C. Claims raised in April 20, 2016 "Emergency Motion for Enlareqment (sic] of Time"
The first claim Defendant raised in his Emergency Motion for Enlar[ge]ment of
Time, which he mailed to the Court on April 20; 2016, aside from his request for aril
extension of time in which to file his Rule 907(1) Response, which was granted, albeit
for the full amount of time that the Defendant requested, is that PCRA Counsel'
stewardship of his PCRA Petition was deficient in that PCRA Counsel failed t
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adequately investigate Defendant's claims or to meet or speak personally with th
Defendant "to discuss the status of Defendant's guilty plea colloquy." (Deft.'s Emergenc
Motion, 4/20/16, at 1). As we have already demonstrated, none of the issues Defenda raised heretofore have any substantive merit. PCRA Counsel's conclusion in his Janua
27, 2016 Petition for Leave to Withdraw, as supplemented by his March 17, 2016 lette
that Defendant's PCRA claims have no merit is supported by the facts of record an relevant law and there is no basis upon which to impugn PCRA counsel's stewardship a of April 20, 2016,
The remainder of the issues raised in Defendant's April 20, 2016 "Emergenc Motion for Enlar[ge]ment of Time" are found in the letter he wrote to counsel dated Apr 6, 2016 which he appended to his Emergency Motion. Therein, Defendant reiterates hi
claim of actual innocence, his challenge to the accuracy of the identification evidenc against him, repeated his challenge to the alleged defects in the execution of the searc
warrants issued for his residence, renewed his claim concerning the cigarette butt, an again asserted that his plea was not knowingly, voluntarily or intelligently entere because he was heavily medicated at the time he was colloquized. We have addresse
all of these issues above and would respectfully incorporate herein by reference and refer
this Honorable reader to those portions of our present Opinion that address these matter
above.
The only new claim Defendant raised was a challenge to the effectiveness of ple
counsel for plea counsel's alleged failure to call a witness Defendant only identifies a
"Charlie" who, according to the Defendant, would have established an alibi for th
Defendant for the October 15, 2014 Robberies. Defendant attached to his Motion th
30 - s:\admin\sarcione\Nieves Noel PCRA 1925a.docx
letter written to him by plea counsel on February 25, 2015 indicating that plea counsil
spoke to "Charles" and that "Mt was a favorable discussion, but I would prefer to tank about it in person rather than by letter." (Letter from Peter Jurs, Esq. to Defendant date
February 25, 2015, at 1). Plea counsel's letter does not indicate that Charles/Charlie wa consulted about an alibi nor does it state, as Defendant suggests, that plea couns represented to Defendant that he intended to call Charles/Charlie to "prove [Defendant's innocence" at trial. (See Deft.'s Letter to PCRA Counsel dated April 6, 2016 at para. 2) Indeed, in plea counsel's subsequent letter to PCRA Counsel dated August 15, 201 plea counsel stated, "[Tjhere were no viable defenses." (See PCRA Counsel's Letter t Court dated August 16, 2016, attached Letter from Plea Counsel dated August 15, 201 at 1). Notwithstanding plea counsel's apparent awareness of "Charles/Charlie" or th dubious relevance of this witness to Defendant's case in light of plea counsel's Augus
15, 2016 letter, Defendant's argument overlooks the fact that he elected to plead guilty admitting to the facts of the crimes and the criminal intent, and declining to advance any alibi defense against the charges to which he pled. As we stated earlier,
A defendant may plead guilty for any reason: to shield others, avoid_ further exposure, to diminish the penalty, .to be done_ with the matter, or any secret reason that appeals to his needs. What is generally and most objectively accepted is that a plea is offered to relieve conscience, to set the record straight and, as earnest of error and repentance, to accept the penalty.
Commonwealth v. Watson, 835 A.2d 786 (Pa. Super. 2003). By pleading guilty as part of a negotiated agreement with the Commonwealth, Defendant opted to acceptI responsibility for the crimes charged and obviated the need for counsel to call witnesse or advance an inconsistent alibi defense on his behalf. See Commonwealth v. Casne -31- sAadmin \sarcione \Nieves Noel PCRA 1925a.docx
461 A.2d 324 (Pa. Super. 1983)(no ineffective assistance of counsel for failure t investigate possible alibi witnesses where plea counsel testifies that defendant never tol him he was innocent but instead "virtually admitted the crime and said he would plead.' Here, plea counsel did take steps to investigate the potential alibi, but as his letter t
PCRA Counsel dated August 15, 2016 indicates, plea counsel ultimately determined th .t no viable alibi defense existed. Moreover, Defendant has not alleged, and none of hi "exhibits" establish, that this proposed witness would have been available or willing t testify on his behalf at any trial. See Commonwealth v. Pander, 100 A.3d 626 (P Super. 2014), appeal denied, 109 A.3d 679 (Pa. 2015)(elements of test for ineffectiv assistance of counsel with respect to claim that counsel failed to investigate or call witness). For all of these reasons, we conclude that Defendant's claim that plea counsel was ineffective for failing to investigate or call an alibi witness has no merit and will n
support a claim for PCRA relief.
Because none of the claims Defendant incorporated into his "Emergency Motio for Enlaregment [sic] of Time" have any merit, Defendant is not entitled to PCRA relief.
D. Claims raised in June 20, 2016 Rule 907(1) Response
The first claim Defendant raised in his June 20, 2016 Rule 907(1) Response is th .t PCRA Counsel's stewardship was deficient in that PCRA Counsel failed to adequatel investigate Defendant's issues, failed to remedy the defects in Defendant's Petition, an failed to adequately meet or speak with the Defendant to discuss the status of th
Defendant's PCRA Petition. As we agreed with PCRA Counsel, for all of the reasons s t
forth above, that none of Defendant's issues have any substantive merit, a circumstanc
-32- s: \adminVarcione \Nieves Noel 151 PCRA 1925a.docx
that does not lend itself to remedy, Defendant's claims of ineffective stewardship on th part of PCRA Counsel have no merit and do not warrant PCRA relief.
The second claim Defendant raised in his June 20, 2016 Rule 907(1) Response i that his plea counsel coerced his plea by advising him (a) that his chances of an acquitt I if he went to trial were "close to 0", (b) that Defendant, as a once convicted Felon, woul not be entitled to the presumption of innocence, and (c) that, if convicted, Defendant would be sentenced under the "Repeated Offender Act" [sic) to a mandatory thirty (30) t sixty (60) years in prison. We have already addressed the fact that the recor demonstrates that plea counsel did not coerce Defendant into accepting a plea. We hay also already addressed the fact that plea counsel's alleged advice to Defendant that, if h went to trial, he would likely be convicted or have a "close to 0" chance of acquittal, i light of the strength of the Commonwealth's case and plea counsel's conclusion, after investigation, that Defendant had no viable defenses, was within the range of competence demanded of attorneys who practice criminal law. See Commonwealth i. Wah, 42 A.3d 335 (Pa. Super. 2012)(where the defendant enters his plea on the advic of counsel, the voluntariness of the plea depends on whether counsel's advice was withi the range` of competence- demanded of attorneys in criminal cases). We woul respectfully incorporate herein by reference and refer this Honorable reviewing Court t those portions of our present Opinion which address these claims above and submit, for all of the reasons aforestated, that these claims of counsel's ineffectiveness have n merit and do not warrant PCRA relief.
- 33 - sAadmin sarcione \ Nieves Noel 1'1 PCRA1925a.docx
As for Defendant's claim that plea counsel was ineffective for advising Defenda that, as a convicted Felon, he would not be entitled to the presumption of innocence, Defendant's claim is belied by the record. At the. Verbal Guilty Plea Colloquy, this Cou asked Defendant if he reviewed the Written Guilty Plea Colloquy with his plea couns before he signed it. (Verbal Guilty Plea Colloquy, 7117/15, N.T. 11). Defendant replie "Yes." (Verbal Guilty Plea Colloquy, 7/17/15, N.T. 11). The Written Guilty Plea signed b
the Defendant advises the Defendant at paragraph 25 that
In order to be convicted, I would have to be proven guilty beyond a "reasonable doubt." A reasonable doubt is a doubt which would cause a person of reasonable prudence to hesitate before acting in a matter of importance to him or herself. I am presumecf innocent, and if the Commonwealth cannot prove me guilty beyond a reasonable doubt, l must be set free on these charges.
(Written Guilty Plea Colloquy, 7/17/15, at 7, para. 25). Defendant signed his initials in th
line provided to the right of this paragraph and signed his name to the bottom of th page. (Written Guilty Plea Colloquy, 7/17/15, at 7). Thus, there is no merit t
Defendant's contention that his plea counsel did not advise him of the presumption innocence or advised him that he would not be entitled to the presumption of innocenc
33This Is the first claim we Identified in our July 22, 2016 Order directing PCRA Counsel to review Defendant's Rule 907(1) Response and pro se letter dated July 18, 2016. We stated in our July 22, 2016 Order,
PCRA Counsel shall review both Defendant's Rule 907(1) Response and Defendant's pro letter dated July 18, 2016 and advise the Court In writing se within thirty (30) days of the date of this Order as to whether Defendant Is entitled to an evidentiary hearing on the following Issues: (a) whether plea counsel misadvised Defendant of the applicable law (see Rule 907(1) Response, 6/20/16, at 2 ((Reason -1111.)"
(Order dated July 22, 2016, at 1).
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because of his prior conviction. Plea counsel, in his letter to PCRA Counsel date August 15, 2016, specifically states
In my discussions with Mr. Nieves, I never told him that because of prior convictions he lost the presumption of innocence under the law. Mr. Nieves, like any defendant charged in a criminal matter, had the presumption of innocence up until the point he plead guilty and if asked stated as such[.]
(PCRA Counsel's Letter to Court dated August 16, 2016, attached Letter from Ple
Counsel to PCRA Counsel dated August 15, 2016). Furthermore, at the beginning of th Verbal Guilty Plea Colloquy, this Court asked Defendant on the record in open cou
"And do you understand, young man, that you're presumed to be innocent, you have th right to a jury or non -jury trial?" (Verbal Guilty Plea Colloquy, 7/17/15, N.T. 4).
Defendant replied, "Yes, sir." (Verbal Guilty Plea Colloquy, 7/17/15, N.T. 4). Defendan was advised in writing and orally that the presumption of innocence applied to him an his claim to the contrary is belied by the record and, quite frankly, patently absurd.
Finally; with respect to Defendant's_claim that plea_counsel advised him that if,h was convicted at trial he would be sentenced to a mandatory thirty (30) to sixty (60) year under the "Repeated Offender Act" [sic], this Court asked plea counsel on the record open court, in front of the Defendant, whether there were any mandatories applicable to this case, to which plea counsel replied, "No, there are none." (Verbal Guilty Ple Colloquy, 7/17/15, N.T. 14). The prosecutor stated that even if there were mandatorie
involved, "the mandatory would be the guideline range", due, as the prosecute
explained, to Defendant's status as an RVOC, (Verbal Guilty Plea Colloquy, 7/17/1
N.T. 13-14). Plea counsel, stated on the record that he went over this with the Defendant
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"[s]everal times." (Verbal Guilty Plea Colloquy, 7/17/15, N.T, 14-15). Defendarit acknowledged on the record, as we discussed earlier, that no extrajudicial threats Jr promises were made to him to induce him to plead guilty. (Verbal Guilty Plea Colloqu 7/17/15, N.T. 11; Written Guilty Plea Colloquy, 7/17/15, at 6, paras, 17, 18). For all these reasons, we conclude that Defendant's claim that plea counsel advised him that f he went to trial and was convicted he would receive a mandatory thirty (30) to sixty (6 years under the "Repeated Offender Act" [sic] is without merit and does not warra PCRA relief.
In his Rule 907(1) Response, Defendant again raised the issues concerning th execution of the search warrant at his residence4 and his allegedly medicated statu during the guilty plea colloquy. With respect to the search warrant issue, we hay already addressed our conclusion that Defendant waived his right to contest th execution of the search warrant by tendering a negotiated guilty plea. Reichle, supr To this reasoning we would only add the following. Defendant claimed that the executio of the search warrant was defective because the police only gave Defendant's wife, wh is not the homeowner, according to the Defendant, a "quick look -glance" at the warm t after ordering Defendant and his family to vacate the premises and because th Detectives conducted the search while Defendant, who claims to be the sole homeowne was not present in the home. The acts of which Defendant complains, even if they di occur as he describes them; are not violations of the Rules of Criminal Procedure, se Pa. R.Crim.P. 207, 208, but even if they were, technical violations of the Rules 4 MIS is the second Issue we asked PCRA Counsel to address In our July 22, 2016 from that paragraph of Defendant's Rule remand Order. Thls Issue derives 907(1) Response Identified by the 907(1) Response, 6/20/16, at 2 Defendant as "Reason -111". (See Rule ("Reason lin Order dated July 22, 2016). sAadmin \sarcione\Nieves Noel lst PCRA 1925a.docx P.
Criminal Procedure do not warrant application of the Exclusionary Rule. Se Commonwealth v. Ruey, 892 A.2d 802 (Pa. 2006)(violations of the Rules of Crimin Procedure relating to the issuance and execution of search warrants require Suppressio only when the violations assume constitutional dimensions and/or substantially prejudic the accused). The defects alleged here are neither of constitutional dimension nor di they substantially prejudice the. Defendant.
As we indicated above, Defendant, in his Rule 907(1) Response, renewed hi contention that his plea counsel induced him to lie about his mental health an medication status at the guilty plea colloquy by, according to Defendant, instilling int Defendanfs thought process "subliminal suggestion." (See Deft.'s Rule 907(1 Response, 6/20/16, at 2, para. IV). Again, a Defendant may not lie under oath and the claim that his lies entitle him to PCRA relief, even if he asserts that his lies were induce by counsel. Yeomans, supra. Defendant's averment that counsel induced his lie
through "subliminal suggestion" is, as his argument regarding his Public Defender ple counsel's alleged misrepresentation concerning the applicability of the presumption o innocence, plainly absurd. Further, this Court had the opportunity to observe Defendant and speak with him on the record and there was nothing about Defendant's demeanor or responses that suggested to the Court that his cognition was impaired in any way. Defendant next claimed in his Rule 9070) Response that his plea counsel insiste that "[Defendant] and his family should not question or attempt to interfere with hi methods for they know nothing of the legal ramifications at work and to simply rely upo his legal expertise because he ([plea counsel]), must do what's necessary to apiese [si both [Defendant] and the Commonwealth." (Deft.'s Rule 9070) Response, 6/20/16, at
(37- sAadmin \sarcione\Nieves Noel let PCRA 1925a.docx
para. "A"). Defendant claims that counsel's alleged refusal to brook dissension from hi advice is a violation of Lefler v, Cooper, 132 S.Ct. 1376 (U.S. Mich. 2012) and Missouri Frye, 132 S.Ct. 1399 (U.S. Mo. 2012), cert. denied, 132 S.Ct. 1789 (U.S. Mo. 2012 (Deft.'s Rule 907(1) Response, 6/20/16, at 3, para. "A"),
In Lefler, supra, the defendant lost a plea offer based on counsel's advice to reject the plea and go to trial. Lefler, supra. The United States Supreme Court held that th Defendant established ineffective assistance of counsel with regard to counsel's advic to go to trial and reject the plea because counsel's advice was based on counsel'
incorrect understanding of a point of law. Id. The United States Supreme Court held tha a defendant's Sixth Amendment right to counsel extends to the plea bargaining proces and that during plea negotiations, defendants are entitled to the effective assistance if competent counsel.
In Missouri v. Frye, 132 S.Ct. 1399 (U.S. Mo. 2012), cert. denied, 132 S.Ct. 178 (U.S. Mo. 2012), the defendant lost two favorable plea offers because his counsel faile to communicate them; he later pled open and received a heavier sentence than what ha
previously been offered by the Commonwealth. Missouri v. Frye, 132 S.Ct. 1399 (U. Mo. 2012), cert. denied, 132 S,Ct, 1789 (U.S. Mo. 2012). The United Slates Siiprem
Court held that defense counsel has a duty to communicate formal offers from th prosecution to accept a plea on terms and conditions that may be favorable to th accused. Id.
In the matter sub judice, there is no question that counsel advised Defendant f the Commonwealth's plea offer. Defendant accepted the plea offer. Nor is there an question that counsel's advice to accept the plea was a reasonable strategy designed t'
- 38 - sAadmin \sarcione \Nieves Noel 15' PCRA 1925a.docx
effectuate Defendant's interests. The Commonwealth had a very strong case against th
Defendant, Defendant had no viable defenses, and Defendant faced considerabl
exposure to at least thirty (30) to sixty (60) years in prison if he went to trial only on th
offenses that were the subject of the plea agreement. Counsel's actions here do n
violate either Lefler, supra or Missouri v. Frye, supra.
Defendant appears to be relying on an argument that may be viewed as th
converse of Lefler, supra and Missouri v. Frye, supra, namely, that if counsel has a duty
to communicate plea offers and give competent advice about whether to accept them,
counsel has a corollary duty to allow Defendant to question counsel's advice and to rejeot
the plea offer if that is the Defendant's wish. Defendant claims that it is this converse o
corollary duty that plea counsel here violated. However, at all times during his guilty ple
colloquy, Defendant advised the Court that he had no questions (Verbal Guilty Ple
Colloquy, 7/17/15, N.T. 11, 15) and he wished to enter a plea of guilty (Verbal Guilty Ple
Colloquy, 7/17/15, N.T. 5, 7-8, 10, 12; Written Guilty Plea Colloquy, 7/17/15, at 5, para
4, 5); he did in fact enter a plea of guilty (Verbal Guilty Plea Colloquy, 7/17/15, N.T. 5, ;
Written Guilty Plea Colloquy, 7/17/15, at 5, paras. 4, 5) and advised the Court that h
understood that his plea meant that the Court would'freat him as having committed th
crimes that were the subject of the plea bargain. (Verbal Guilty Plea Colloquy, 7117/1
N.T. 7-8, 10). Defendant advised the Court both orally and in writing that he was able t
work with his counsel, that he was satisfied with counsel's services, and that n
extrajudicial threats or promises were made to him to induce him to plead guilty. (Verb .I
Guilty Plea Colloquy, 7/17/15, N.T. 10, 11; Written Guilty Plea Colloquy, 7/17/15, at ,
pares. 16-18, 39-41). He acknowledged that, while he had been assisted in his decisio ..-2----. z:::-L 39 )-
1: sAadmin\sarcione \Nieves Noel PCRA 1.5` 1925a.docx
by counsel, it was his own decision to enter the plea that he tendered on July 17, 201 (Written Guilty Plea Colloquy, 7/17/15, at 6, para. 41). As we stated before, Defendant may not represent one position to the Court during a guilty plea colloquy and then try t obtain PCRA relief by asserting that what he represented to the Court at his colloquy wa a lie. Yeomans, supra. Defendant's Lauer v. Cooper, supra/Missouri v. Frye, sups argument has no merit and does not warrant PCRA relief. Next, Defendant contends that his plea counsel did not "'make an independe t examination of the facts, curcumstances [sic], pleadings and laws involved and then offer his/her informed opinion as to what plea or defence [sic] should be entered." (Deft.' Rule 907(1) Response, 6/20/16, at 3, para. "D")(quoting Von Moltke v. Gillies, 68 S.0 316 (U.S. Mich. 1948)). Defendant cites Von Moltke v. Gillies, 68 S.Ct. 316 (U.S. Mic 1948) in support of his claim. Von Moltke, supra is a somewhat unique case with peculi r facts. In Von Moltke, supra, a German national living in the United States was charge with Conspiracy to violate the Espionage Act of 1917 by allegedly agreeing with twent three (23) other people to collect and deliver military secrets to the Germans durin World War 11. Von Moltke v. Gillies, 68 S.Ct. 316 (U.S. Mich. 1948). The Defendant wa not provided with counsel. Id. In tendering her plea, she relied on legal advice provide to her by an F.B.I. lawyer -agent, indisputably a representative of the Feder .l Government, the opposing party. Id. When she later challenged the validity of her ple ,
the United States Supreme Court held that "[a] challenge to a plea of guilty made by a indigent defendant, for whom no lawyer has been provided, on the ground that the pie was entered in reliance upon advice given by a government lawyer-agent, raises seriou constitutional questions." Von Moltke v. Gillies, 68 S.Ct. 316 (U.S. Mich. 1948). Th - 40 - sAadmin\sarcione \Nieves Noel 3.'t PCRA 1925a.docx
United States Supreme Court reversed and remanded the matter for a determination o whether the Defendant validly waived her right to counsel. Id. The facts in Von Moltk supra are entirely distinguishable from the facts of the present case, wherein th Defendant was provided with an attorney from the Chester County Office of the Publi Defender to represent him in connection with his pre-trial and plea proceedings. W would respectfully submit that the peculiar factual distinctiveness of Von Moltke, supr renders that case inapposite to the present matter.
Nevertheless, the Von Moltke, supra case does articulate the proposition for whic Defendant cited it, but that does not mean that the Defendant is entitled to relief. Unlik the Von Moltke, supra case, Defendant was appointed free counsel entirely devoted t his cause who did investigate the facts, circumstances, pleadings and law and wh formed a learned opinion as to what plea should be entered in light of what he termed "strong" case on the part of the Commonwealth, no viable defenses on the part of th Defendant, and Defendant's extensive exposure to significant jail time if Defendant went to trial and were convicted on even a few of the charges set forth in the Information which he reasonably advised the Defendant was a likely outcome based on the strengtl of the Commonwealth's case and the lack of any viable defenses available to thi
Defendant. Plea counsel satisfied the concerns expressed in Von Moltke, supr assuming for purposes of argument that Von Moltke, supra has any application to th matter sub judice. Defendant's claim to the contrary is without merit.
Defendant also claimed in his Rule 907(1) Response that his plea counsel did n t inform him of his basic sentencing liabilities and other considerations so as to enable hi
to make an informed decision about whether to accept or reject the Commonwealth'
- 41 - s. warm \sarcsone \Nieves Noel 1" PCRA 1925a.docx
plea offer. However, this Court asked plea counsel whether he had reviewed with Defendant the Sentencing Guidelines applicable to the crimes for which he was tendering the plea. (Verbal Guilty Plea Colloquy, 7/17/15, N.T. 14). Counsel advised the Court o the record, in front of the Defendant, that he had done so "[s]everal times." (Verbal Guilt Plea Colloquy, 7/17/15, N.T. 15). When the Court then asked the Defendant, "Do yo have any questions at all?", Defendant replied, "No." (Verbal Guilty Plea Colloqu 7/17/15, N.T. 15). Plea counsel also advised the Court that he reviewed with Defenda the amount of time he could expect as part of his State Parole hit, as he committed thes crimes while on State Parole, and whether his back time would be served first or las (Verbal Guilty Plea Colloquy, 7/17/15, N.T. 12). When we asked Defendant, "Do yo understand?", Defendant replied, "Yes, sir." (Verbal Guilty Plea Colloquy, 7/17/15, N. 12). Further, even if counsel had not reviewed with Defendant his sentencing exposur and VOP time, we reviewed these items with Defendant on the record in open court a part of his Verbal Guilty Plea Colloquy. (Verbal Guilty Plea Colloquy, 7/17/15, N.T. 11- 15). Defendant's claim that he was not advised of his basic sentencing liabilities an other considerations so as to enable him to make an informed decision about whether t accept or reject the Commonwealth's plea offer is without substantive -merit and does not warrant PCRA relief.
Finally, in his Rule 907(1) Response, Defendant requested that this Court allow further PCRA proceedings, appoint new PCRA Counsel, and vacate his conviction an sentence pending the resolution of whether Defendant's plea was voluntary and "fre from the influence of powerful narcotics." (Deft.'s Rule 907(1) Response, 6/20/16, at 5 Based on our determination that none of Defendant's issues have any substantive meri - 42 - tr. s: \admin \sarcione \ Nieves Noel ft PCRA 1925a.docx
we would respectfully submit that Defendant's request for further PCRA proceedings, new counsel, and the vacating of his sentence are not warranted. Because none of the issues Defendant raised in his June 20, 2016 Rule 907(1 Response have any merit, we would respectfully submit that his appeal of those issue should be denied and dismissed.
E. Claim raised in Defendant's July 18, 2016 Letter to the Court The only claim that Defendant raised in his July 18, 2016 pro se letter to the Cou is that his plea was not knowingly, voluntarily and intelligently tendered because he wa under the influence of psychotropic medication(s) on the day of the colloquy. We hav already addressed this claim above and determined that it is without merit. We woul respectfully incorporate herein by reference and refer this Honorable reader to thos portions of our present Opinion which explain our rationale for rejecting this claim. F. Whether plea counsel was ineffective for advising Defendant to plead quilty In our July 22, 2016 remand Order, we identified the issue as to whether ple counsel was ineffective for advising Defendant to accept the plea bargain offered by th Commonwealth. To all that we have said on this issue above, which we incorporat herein by reference and to which we respectfully refer this Honorable reader, 'we woul add that given the strengths of the Commonwealth's case, the lack of viable defense available to the Defendant, and the significant exposure he risked upon conviction at trial, plea counsel's advice to accept the Commonwealth's offer of two (2) concurrent ten (10 year terms followed by ten (10) years of consecutive probation, in essence, an offe requiring only ten (10) years in prison, was within the range of competence demanded o attorneys who practice in the field of criminal law. Commonwealth v. Wah, 42 A.3d 33 - 43 - sn,aamtn \sarcione \Nieves Noel 1" PCRA 1925a.docx
(Pa. Super. 2012). Plea counsel was not ineffective for advising Defendant to accept th
Commonwealth's offer.
G. Validity of Defendant's Plea
To be valid, a guilty plea must be knowingly, voluntarily and intelligently entere Commonwealth v. Rush, 909 A.2d 805 (Pa. Super. 2006), reargument denied (November 20, 2006). In order for a guilty plea to be constitutionally valid, the plea colloquy mu t affirmatively show that the defendant understood what the plea connoted and it consequences. Commonwealth v. Yeomans, 24 A.3d 1044 (Pa. Super. 2011 reargument denied (August 18, 2011). A defendant who attempts to withdraw a guilt plea after sentencing must demonstrate prejudice on the order of manifest injustic
before withdrawal is justified. Commonwealth v, Yeomans, 24 A.3d 1044 (Pa. Supe
2011), reargument denied (August 18, 2011). A showing of manifest injustice may b established if the plea was entered into involuntarily, unknowingly, or unintelligentl Commonwealth v. Yeomans, 24 A.3d 1044 (Pa. Super. 2011), reargument denie (August 18, 2011).
As the Pennsylvania Superior Court has summarized,
Pennsylvania has constructed its guilty plea procedures in a way designed to guarantee assurance that guilty pleas are voluntarily and understandingly tendered. The entry of a guilty plea is a protracted and comprehensive proceeding wherein the court is obliged to make a specific determination after extensive colloquy on the record that a plea is voluntarily and understandingly tendered.
Commonwealth v. Yeomans, 24 A.3d 1044, 1046 (Pa. Super. 2011), reargument denie (August 18, 2011)(quoting Commonwealth v. Fluharty, 632 A.2d 312, 314 (Pa. Supe
1993)(citation omitted)). Where the record clearly demonstrates that a guilty pie - 44 - s: aamai \sarcione\ Nieves Noel 3." PCRA 1925a.docx
colloquy was conducted, during which it became evident that the defendant understoo the nature of the charges against him, the voluntariness of the plea is established.
Commonwealth v. Rush, 909 A.2d 805 (Pa. Super. 2006), reargument denied (Novembe 20, 2006).
Rule 590 of the Pennsylvania Rules of Criminal Procedure requires that a guilt plea be offered in open court, and provides a procedure to determine whether the plea voluntarily, knowingly, and intelligently entered. Commonwealth v. Yeomans, 24 A.3 1044 (Pa, Super. 2011), reargument denied (August 18, 2011). See ais Commonwealth v. Rush, 909 A.2d 805 (Pa. Super. 2006), redrgument denied (Novembe 20, 2006)(a court accepting a defendant's guilty plea is required to conduct an on -the record inquiry during the plea colloquy). Rule 590 does not prohibit the use of a writtei colloquy that is read, completed, signed by the defendant, and made part of the record the plea proceedings. Pa. R.Crim.P. 590, Comment. This written colloquy would have t be supplemented by some on -the -record oral examination. Pa. R.Crim.P. 59 Comment.
As noted in the Comment to Rule 590, at a minimum the trial court should ask
questions to elicit the following information: (a) whether the defendant understands th nature of the charges to which he or she is pleading guilty or nolo contendere; (b whether there is a factual basis for the plea; (c) whether the defendant understands th t he or she has the right to trial by jury; (d) whether the defendant understands that he or she is presumed innocent until found guilty; (e) whether the defendant is aware of th permissible range of sentences and fines for the offenses charged; and (6) whether th defendant is aware that the judge is not bound by the terms of any plea agreemer
- 45 - sRadmin \sarcione \ Nieves Noel 1:`PCRA 1925a.docx
tendered unless the judge accepts such agreement. Pa. R.Crim.P. 590, Commend;
Commonwealth v. Yeomans, 24 A.3d 1044 (Pa. Super. 2011), reargument denie (August 18, 2011); Commonwealth v. Rush, 909 A.2d 805 (Pa. Super. 2006), reargume t denied (November 20, 2006). The Comment to Rule 590 includes a seventh propose question that is only applicable when a defendant pleads guilty to Murder generall Commonwealth v. Yeomans, 24 A.3d 1044, 1047 n. 2 (Pa. Super. 2011), reargume t denied (August 18, 2011).
Reiterating and expanding on what we stated above, [i]n order for a guilty plea to be constitutionally valid, the guilty plea colloquy must affirmatively show that the defendant understood what the plea connoted and its This determination is to be made by consequences. examining the totality of the circumstances surrounding the entry of the plea. Thus, even though there (may be] an omission or defect in the guilty plea colloquy, a plea of guilty will not be deemed invalid if the circumstances surrounding the entry of the plea the defendant had a full disclose that understanding of the nature and consequences of his plea and that he knowingly and voluntarily decided to enter the plea.
Commonwealth v. Yeomans, 24 A.3d 1044, 1047 (Pa. Super. 2011), reargument denie (August 18, 2011)(quoting Commonwealth v. Fluharty, 632 A.2d 312, 314-15 (Pa. Supe 1993)(citations omitted)).
Our law presumes that a defendant who enters a guilty plea was aware of what he was doing. He bears the burden of proving otherwise.
The longstanding rule of Pennsylvania law is that a defendant may not challenge his guilty plea by he lied while under oath, even if asserting that he avers that counsel induced the lies. A person who elects to plead guilty is bound by the statements he makes in open court while under oath
- 46 - sAadmin \sarcione\ Nieves Noel PCRA 1925a.docx
and may not later assert grounds for withdrawing the plea which contradict the statements he made at his plea colloquy.
A defendant who elects to plead guilty has a duty to answer questions truthfully. We [cannot] permit a defendant to postpone the final disposition of his case by lying to the court and later alleging that his lies were induced by the prompting of counsel.
Commonwealth v. Yeomans, 24 A.3d 1044, 1047 (Pa. Super. 2011), reargument dente
(August 18, 2011)(guoting Commonwealth v. Pollard, 832 A.2d 517, 523-24 (Pa. Supe
2010)(citations omitted)). The law does not require that a defendant be completely
satisfied with the outcome of his decision to plead guilty, only that the plea be voluntary,
knowing and intelligent. Commonwealth v. Rush, 909 A.2d 805 (Pa. Super. 2006),
reargumenf denied (November 20, 2006).
A review of the record sub judice reveals that Defendant's plea was voluntaril
knowingly, and intelligently entered. A Verbal Guilty Plea was conducted with
Defendant on the record in open court, (See Verbal Guilty Plea Colloquy and Sentencin
Transcript, 7/17/15, N.T. 1-23). In addition, Defendant executed a comprehensiv
Written Guilty Plea Colloquy. (See Written Guilty Plea Colloquy, 7/17/15, 1-10). Th
record demonstrates that each of the mandatory six (6) areas of inquiry were explore
with this Defendant.
With respect to the first area of inquiry, whether Defendant understands the natur
of the charges to which he is tendering his plea, we asked Defendant, "Are you aware o
what you have been charged with?" (Verbal Guilty Plea Colloquy, 7/17/15, N.T. 3
Defendant replied, "Yes." (Verbal Guilty Plea Colloquy, 7/17/15, N.T. 3). We reviewe
- 47 - sAadmin \sarcione\Nieves Noel 1st PCRA 1925a.docx
with the Defendant the elements of each offense. (Verbal Guilty Plea Colloquy, 7/17/1 N.T. 9-10). We asked Defendant whether he understood the elements of these offense
(Verbal Guilty Plea Colloquy, 7/17/15, N.T. 10). Defendant replied, "Yes." (Verbal Guilt Plea Colloquy, 7/17/15, N.T. 10). We asked Defendant whether he had any question about the elements of these offenses. (Verbal Guilty Plea Colloquy, 7/17/15, N.T. 10 Defendant replied, "No." (Verbal Guilty Plea Colloquy, 7/17/15, N.T. 10). In addition t this oral colloquy, Defendant signed a Written Guilty Plea Colloquy that set forth th nature and elements of the offenses to which he was tendering his plea. (Written Guilt Plea Colloquy, 7/17/15, at 1-2). The Written Guilty Plea Colloquy contained the followin items.
1. I hereby enter a plea of guilty to the charges set forth on the cover pages. [Is/] NN 2. I have read and understand the cover pages. Vs/1 NN
4. I admit committing the crimes to which I am pleading guilty. j/s/1 NN
5. I acknowledge that the facts occurred as set forth on page 2 of this form. NN
15. Do you understand the charges against you? Vs/1 NN
(Written Guilty Plea Colloquy, 7/17/15, at 5-6). Defendant signed his initials after eac paragraph and signed his name at the bottom of each page. (Written Guilty PIe Colloquy, 7/17/15, at 5-6). Thus the first area of mandatory inquiry is satisfied.
- 48 - 3 s:\admin\sarcione\Nieves Noel 1" PCRA 1925a.docx
-With respect to the second area of mandatory inquiry, whether there was a factu basis for the plea, as we demonstrated in the beginning of this Opinion, a factual basi was recited for the plea. (Verbal Guilty Plea Colloquy, 7/17/15, N.T. 4-10; Written Guilty Plea Colloquy, 7/17/15, at 2). Thus, the second area of mandatory inquiry is satisfied. With respect to the third area of mandatory inquiry, whether the Defendant understands that he has the right to trial by jury, we asked the Defendant at the beginnin of the Verbal Guilty Plea Colloquy, "And do you understand, young man, that you'r presumed to be innocent, you have the right to a jury or non -jury trial?" (Verbal Guilt Plea Colloquy, 7/17/15, N.T. 4). Defendant replied, "Yes, sir." (Verbal Guilty Ple Colloquy, 7/17/15, N.T. 4). In addition, the Written Guilty Plea Colloquy advised th Defendant that he "need not enter a plea of guilty, but may plead not guilty and go to trial." (Written Guilty Plea Colloquy, 7/17/15, at 6, para. 19). Defendant wrote his initial in the line provided to the right of this paragraph and signed his name at the bottom of thr page. (Written Guilty Plea Colloquy, 7/17/15, at 6). Thus, the third area of mandato inquiry is satisfied.
With respect to the fourth area of mandatory inquiry, whether the Defenda understands that he or she is presumed innocent until found guilty, we have alread discussed how both counsel and this Court advised the Defendant that he did indee enjoy the presumption of innocence in these matters. We would incorporate herein b reference and respectfully refer this Honorable reviewing Court to those portions of th present Opinion which address this issue above. We reiterate that we advised Defendant of the presumption of innocence at the beginning of the Verbal Guilty Plea Colloquy when we asked, "And do you understand, young man, that you're presumed to be innocen - 49 - sAadmin Varcione \Nieves Noel PCRA 1925a.docx
you have the right to a jury or non -jury trial?" (Verbal Guilty Plea Colloquy, 7/17/15, N.
4). Defendant replied, "Yes, sir." (Verbal Guilty Plea Colloquy, 7/17/15, N.T. 4). Th
Written Guilty Plea Colloquy advised the Defendant that
[WI order to be convicted, would have to be proven guilty I
beyond a "reasonable doubt". A reasonable doubt is a doubt which would cause a person of reasonable prudence to hesitate before acting in a matter of importance to him or herself. I am presumed innocent, and if the Commonwealth cannot prove me guilty beyond a reasonable doubt, I must be set free on these charges. f/s/j NN
(Written Guilty Plea Colloquy, 7/17/15, at 7, para. 25). Defendant signed his initials o
the line provided to the right of this paragraph and signed his name at the bottom of th
page. (Written. Guilty Plea Colloquy, 7/17/15, at 7). (See also PCRA Counsel's Letter t
the Court dated August 16, 2016 with attached Letter from Plea Counsel at para. 1
Thus, the third area of mandatory inquiry is satisfied.
With respect to the fifth area of mandatory inquiry, whether the Defendant wa
aware of the permissible range of sentences and/or fines for the offenses charged, w
advised Defendant on the record in open court of the maximum sentences and fines that
were applicable to the crimes for which he was tendering his plea as well as what hi
Statewide Sentencing Guidelines exposure would be. (Verbal Guilty Plea Colloquy,
7/17/15, N.T. 12-15). Plea counsel advised the Court that he had gone over thes
matters with the Defendant Isleveral times," (Verbal Guilty Plea Colloquy, 7/17/15, N.
12, 15). Defendant assured the Court that he understood. (Verbal Guilty Plea Colloqu ,
7/17/15, N.T. 12, 15). In addition, the Written Guilty Plea Colloquy executed by th
Defendant set forth the maximum penalties and fines applicable to the crimes for whic.
Defendant was tendering his plea. (Written Guilty Plea Colloquy, 7/17/15, at 1-2
- 50 - sAadmin \sarcione \Nieves Noel 1s` PCRA 1925a.docx
Defendant signed his name at the bottom of these pages. Also, as we demonstrate
above, Defendant placed his initials beside the paragraph of the Written Guilty Ple Colloquy which averred, "I have read and understand the cover pages." (Written Guilt Plea Colloquy, 7/17/15,. at 5). He also signed his name at the bottom of that pag (Written Guilty Plea Colloquy, 7/17/15, at 5). Thus, the fifth area of mandatory inquiry satisfied.
With respect to the sixth area of mandatory inquiry, namely, whether the defendan was aware that the judge is not bound by the terms of any plea agreement tendere unless the judge accepts such agreement, the undersigned advised Defendant on th record in open court that "I'm not bound by the terms of this plea agreement unless I
accept it. If I reject it, you may step down and withdraw your plea." (Verbal Guilty Ple
Colloquy, 7/17/15, N.T. 11). In addition, the Written Guilty Plea Colloquy advised th
Defendant,
The Court is not bound by the terms of the plea agreement that I have entered into with. the Commonwealth on pages 3 and 4 of this form, but if the Court rejects it, I may withdraw my plea of guilty and enter a plea of not guilty. [/s/j NN
(Written Guilty Plea Colloquy, 7/17/15,. at 8, para. 31). Defendant placed, his initials in th
line provided to the right of this paragraph and signed his name at the bottom of th page. (Written Guilty Plea Colloquy, 7/17/15, at 8). Thus, the sixth area of mandato
inquiry is satisfied.
In addition to all of the areas of mandatory inquiry, our record colloquy, both or -I and written, inquired about Defendant's age, educational status and his ability to rea, write and understand the English language. (Verbal Guilty Plea Colloquy, 7/17/15, N.
-51,., s:\admin \sarcione\ Nieves Noel 1" PCRA 1925a.docx et,
2-3; Written Guilty Plea Colloquy, 7/17/15, at 5). We learned that Defendant was, at th t time of the plea, twenty-nine (29) years old and a graduate of Coatesville Area Senior High School. (Verbal Guilty Plea Colloquy, 7/17/15, N.T. 2-3; Written Guilty Ple Colloquy, 7/17/15, at 5). We also explored, as we discussed earlier infra, the issue Defendant later raised in his PCRA Petition and with which he attempted to impugn th validity of his plea.
The record demonstrates that Defendant tendered his plea voluntarily, knowing' and intelligently, He understood the nature of the charges against him, what the ple connoted, and its consequences. The record is devoid of evidence of manifest injustic Defendant's plea is constitutionally valid.
H. Claims raised in de facto Rule 1925(b) Statement The first few claims Defendant raised in his de facto Statement of Matter Complained of on Appeal, which was attached to his Notice of Appeal, purport t challenge the stewardship of PCRA Counsel for PCRA Counsel's alleged failure t adequately investigate Defendant's PCRA claims, failure to remedy the defects i
Defendant's PCRA Petition and failure to meet or personally speak to the Defendai t about his PCRA. (See Deft.'s Statement, at 2 paras. 1-4). As they all concern th
stewardship of PCRA Counsel, we will treat them in the aggregate, for convenience'
sake, as one claim. The record, as we have discussed above, amply demonstrates th none of the issues Defendant raised in his PCRA Petition and related documents hay any substantive merit. The lack of substantive merit in any of Defendant's contention does not lend itself to correction by PCRA Counsel. It is a fatal flaw in Defendant'
attempt to challenge the validity of his plea and is inherent in the foundation of th
- 52 - ' s:\admin \sarcione \ Nieves Noel 1" PCRA 1925a.docx
theories he advances. There is no remedy for these defects. Because none o Defendant's issues have any substantive merit, Defendant's various challenges to th stewardship of his plea counsel fail. Commonwealth v. Chmiel, 30 A.3d 1111 (Pa.
2011)(failure to meet any one of the three prongs of the test for ineffectiveness defeat the claim).. Because Defendant does not have a valid claim of ineffective assistanc against plea counsel, Defendant's claim of ineffective assistance of PCRA Couns likewise fails. Commonwealth v. Chmiel, 30 A.3d 1111 (Pa. 2011)(failure to satisfy test I1
for ineffectiveness against trial counsel defeats a layered ineffectiveness claim against subsequent counsel). Thus, Defendant's challenges to the stewardship of PCR
Counsel have no merit and should, respectfully, be denied and dismissed. See als Commonwealth v Maple, 559 A.2d 953 (Pa. Super. 1989)(defendant is not entitled to th appointment of new counsel after initial PCRA counsel has properly been allowed t
withdraw under the Turner/Finley procedures). Defendant's claims against PCR
Counsel have no merit and should, respectfully, be denied and dismissed.
The next issue Defendant raised in his statement of matters complained of is reiteration of his Lefler v. Cooper, supra and Missouri v. Rye, supra argument. W would respectfully incorporate herein by reference and refer this Honorable reader t those portions of the present Opinion above which address this issue. We respectfully submit for all of the reasons aforestated that this issue has no merit and should, respectfully, be denied and dismissed.
The third issue Defendant raised in his statement of matters complained of on appeal is that plea counsel was ineffective for "compel[ling] the plea agreement withou t [Defendant's] understanding and consent." We respectfully submit, for all of the reason
- 53 - sAadmin \sarcione \ Nieves Noel PCRA 1925a.docx
set forth in the body of this Opinion, that Defendant's contention that his plea couns I
compelled his acceptance of the Commonwealth's offer or compelled him to enter a ple agreement without his consent is completely without foundation in the record and witho t
merit, and should, respectfully, be denied, anddismissed.
The fourth and final issue Defendant raised in his de factor Rule 1925( Statement reiterates his VonMoltke v. Gillies, supra claim. We would respectfully subm t
that we have already addressed this claim above. We would respectfully incorporat herein by reference and refer this Honorable reader to that portion of our present Opinio which addresses the merits of Defendant's claim. We respectfully submit, for all of th reasons aforestated, that Defendant's claim has no merit and should, respectfully, b denied and dismissed.
III. SUMMARY DISMISSAL
"'The right to an evidentiary hearing on a post -conviction petition is not absolute." Commonwealth v. Wah, 42 A.3d 335, 338 (Pa. Super. 2012)(quoting Commonwealth
Turetsky, 925 A.2d 876, 882 (Pa. Super. 2007), appeal denied, 940 A.2d 365 (P 2007)). "'It is within the PCRA court's discretion to decline to hold a hearing if th
petitioner's claim is patently frivolous and has no support in either the record or oth r
evidence.' Id. "Where a PCRA petition does not raise a 'genuine issue[ ) of materi I
fact,' the reviewing court is not required to hold an evidentiary hearing on the petition "
Commonwealth v. Simpson, 66 A.3d 253, 260 (Pa. 2013)(quoting Commonwealth
Clark, 961 A.2d 80, 85 (Pa. 2008), cert. denied, Clark v. Pennsylvania, 130 S.Ct. 81
(U.S. Pa. 2009)). "Thus, to entitle himself to a hearing, [the petitioner) must raise al
- 54 - sAadmin \sarcione \ Nieves Noel 1" PCRA 1925a.docx
issue of fact, which, if resolved in his favor, would justify relief." Commonwealth
Simpson, 66 A.3d 253, 260-61 (Pa. 2013).
It is the responsibility of the reviewing Court on appeal to examine each issu
raised in the PCRA Petition in light of the record certified before it in order to determine f
the PCRA court erred in its determination that there were no genuine issues of materi I
fact in controversy and in denying relief without conducting an evidentiary hearin
Commonwealth v, Wah, 42 A.3d 335, 338 (Pa. Super. 2012). In executing this task, th
appellate courts apply an abuse of discretion standard. Commonwealth v. Rush, 83
A.2d 651, 659 (Pa. 2003), application for extraordinary relief denied, 934 A.2d 1151 (P
2007). An abuse of discretion is not merely an error of judgment; rather, discretion
abused when the law is overridden or misapplied, or the judgment exercised is manifest!
unreasonable, or the result of partiality, prejudice, bias or ill will, as shown by th
evidence or the record. Commonwealth v. Antidormi, 84 A.3d 736 (Pa. Super. 2014,
appeal denied, 95 A.3d 275 (Pa. 2014).
To aid this Honorable reviewing Court in its duty, we have examined all of th
issues Defendant raised in his first PCRA Petition and related documents. As we hav
discussed herein, it is our position that none of the issues Defendant has raised have an
substantive merit. We would respectfully submit that the record as it stands at present i
more than adequate to support this conclusion. Accordingly, we would respectfull
submit that no hearing was necessary to address the merits of Defendant's first PCRd
Petition and that we did not abuse our discretion by dismissing Defendant's first PCR
Petition without holding a hearing..
- SS sAadmin \sarcione \ Nieves Noel 1't PCRA1925a.docx
IV. STANDARD OF REVIEW
As our appellate courts have established, in PCRA proceedings, an appellat
court's scope of review is limited by the PCRA's parameters; since most PCRA appeal
involve mixed questions of law and fact, the standard of review is whether the PCR
court's findings are supported by the record and free of legal error. Commonwealth
Pitts, 981 A.2d 875 (Pa. 2009), subsequent habeas corpus proceeding denied, Pitts v
Kerestes, 2013 WL 4718950 (E.D. Pa. 2013). The Pennsylvania Superior Court review
an Order dismissing a PCRA petition in the light most favorable to the prevailing party .t the PCRA level. Commonwealth v, Oliver, 128 A.3d 1275 (Pa. Super. 2015). Tha
Superior Court's review of an Order dismissing a PCRA petition is limited to the finding
of the PCRA court and the evidence of record. Commonwealth v. Oliver, 128 A.3d 127
(Pa. Super. 2015). The Superior Court will not disturb a PCRA court's Order dismissing
PCRA petition if the Order is supported by the evidence of record and is free of leg -I
error. Commonwealth v. Oliver, 128 A.3d 1275 (Pa. Super. 2015). The Superior Cou
will grant great deferende to the factual findings of the PCRA court and will not distur
those findings unless they have no support in the record; however, the Superior Court
affords no such deference to a PCRA court's legal conclusions. Commonwealth
Oliver, 128 A.3d 1275 (Pa. Super. 2015). Where a PCRA petition raises questions
law, the Superior Court's standard of review is de novo and its scope of review is plenary
Commonwealth v. Oliver, 128 A.3d 1275 (Pa. Super. 2015). The Superior Court ma
affirm a PCRA court's dismissal of a PCRA petition on any grounds if the record support
it. Commonwealth v. Oliver, 128 A.3d 1275 (Pa. Super. 2015).
-56- v sAadmin Varcione \Nieves Noel rt PCRA 1925a.docx
V. CONCLUSION
We would respectfully submit that our analysis of the merits of the issues raised b the Defendant in his first PCRA Petition and related documents survives the threshold fo appellate review. To that end, we would respectfully submit that our factual findings ar supported by the record and our conclusions of law are free from error. Consistent wit our analysis as set forth above, we would respectfully submit that none of Defendant' issues has any substantive merit. Accordingly, we would respectfully recommend that this Honorable reviewing Court deny and dismiss Defendant's appeal and affirm ou Order dated August 30, 2016 summarily dismissing his first PCRA Petition.
BY THE COURT:
Date h /7(e _ ir 7 . 431/4.4..,,,r....4..t.,.._. Anton A/faone, i (
Certified From The Record This ay of 20/ Deputy. Cie of Corm ou Pleas Court -
h.
-57,.,
Related
Cite This Page — Counsel Stack
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