J-S15025-24
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : TOLA ROSS : : Appellant : No. 52 EDA 2023
Appeal from the Judgment of Sentence Entered February 1, 2006 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0806531-2004
BEFORE: OLSON, J., NICHOLS, J., and COLINS, J. *
MEMORANDUM BY NICHOLS, J.: FILED OCTOBER 29, 2024
Appellant Tola Ross appeals nunc pro tunc from the judgment of
sentence imposed after he pled guilty to third-degree murder, arson, and
related charges. After review, we affirm.
Briefly, the trial court accepted Appellant’s plea and imposed an
aggregate sentence of twenty-seven-and-one-half to sixty years’
imprisonment on February 1, 2006. Appellant filed a timely post-sentence
motion to withdraw his guilty plea, which the trial court denied. Appellant did
not file a direct appeal. See Pa.R.A.P. 903.
Appellant subsequently filed three pro se Post Conviction Relief Act1
(PCRA) petitions, all of which were unsuccessful. In 2016, Appellant filed a ____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 42 Pa.C.S. §§ 9541-9546. J-S15025-24
petition for writ of habeas corpus in the United States District Court for the
Eastern District of Pennsylvania, which ultimately denied Appellant’s petition.
See Ross v. Bush, CV 17-73, 2019 WL 6008415 (E.D. Pa. filed Nov. 14,
2019) (unpublished order). Appellant then filed a timely appeal to the United
States Court of Appeals for the Third Circuit. The Third Circuit concluded that
Appellant’s trial counsel had been ineffective for failing to advise Appellant
about his right to appeal the trial court’s denial of Appellant’s motion to
withdraw his plea and reversed the district court’s order. See Ross v.
Superintendent Pine Grove SCI, 19-3947, 2022 WL 2816797, at *2 (3d
Cir. filed July 19, 2022) (unpublished mem.). Pursuant to the Third Circuit’s
decision, the district court conditionally granted Appellant a writ of habeas
corpus, directing that the trial court reinstate Appellant’s direct appeal rights.
The trial court reinstated Appellant’s direct appeal rights nunc pro tunc and
appointed Matthew F. Sullivan, Esq., (Attorney Sullivan) as appellate counsel
on November 23, 2022. Appellant then filed the instant timely notice of appeal
on December 13, 2022.
On June 6, 2023, Appellant filed a court-ordered Pa.R.A.P. 1925(b)
statement identifying the following substantive claim:
The trial court erred in denying [Appellant’s] motion to withdraw his guilty plea because the oral plea colloquy did not set forth an adequate factual basis for the plea as required by Pa.R.Crim.P. 590(B)(2) (comment). Our Supreme Court has explained, “The factual basis requisite is among six elements, which . . . are essential to a valid plea colloquy.”
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Appellant’s Rule 1925(b) Statement, 6/8/23, at 1 (citation omitted).
Thereafter, the trial court permitted Appellant to file a supplemental Rule
1925(b) statement. See Trial Ct. Order, 6/23/23. On June 26, 2023,
Appellant filed a supplemental Rule 1925(b) statement identifying the
following claim of ineffectiveness of trial counsel:
Trial counsel was ineffective for filing a post-sentence motion to withdraw guilty plea that did not include any reasons for the plea’s withdrawal. . . . Counsel’s ineffectiveness prejudiced [Appellant] because the motion, which was not supported with factual and legal authority, foreclosed [Appellant] from obtaining the requested relief.
Appellant’s Suppl. Rule 1925(b) Statement, 6/26/23, at 1 (some formatting
altered).
On June 28, 2023, the trial court issued a Rule 1925(a) opinion which
addressed the claim raised in Appellant’s first Rule 1925(b) statement, but did
not include any analysis as to Appellant’s supplemental claim concerning trial
counsel’s ineffectiveness. See Trial Ct. Op., 6/28/23, 1-8 (unpaginated).
On appeal, Appellant raises only the following issue:
Was trial counsel ineffective for filing a boilerplate post-sentence motion that offered no reason or justification why [Appellant] sought to withdraw his guilty plea?
Appellant’s Brief at 4.
Preservation of Claims
Before we address the merits of Appellant’s claims, we must determine
whether Appellant has preserved them for appeal. This Court may raise this
-3- J-S15025-24
issue of waiver sua sponte. See Commonwealth v. Wholaver, 903 A.2d
1178, 1184 (Pa. 2006). “[T]he applicability of waiver principles . . . is a
question of law, over which our standard of review is de novo and our scope
of review is plenary.” Commonwealth v. Barbour, 189 A.3d 944, 954 (Pa.
2018) (citations omitted).
Ineffective Assistance of Trial Counsel Claim
With regard to Appellant’s claim of ineffective assistance of trial counsel,
our Supreme Court has explained that “as a general rule, a petitioner should
wait to raise claims of ineffective assistance of trial counsel until collateral
review.” See Commonwealth v. Grant, 813 A.2d 726, 738 (Pa. 2002). Our
Supreme Court has recognized three exceptions to this general rule. See
Commonwealth v. Holmes, 79 A.3d 562, 577-80 (Pa. 2013);
Commonwealth v. Delgros, 183 A.3d 352, 361 (Pa. 2018). The first
exception applies to extraordinary circumstances, when a “trial court, in the
exercise of its discretion, determines that a claim [] of ineffectiveness is both
meritorious and apparent from the record so that immediate consideration
and relief is warranted.” Holmes, 79 A.3d at 577-78. The second exception
addresses “multiple and fairly common ineffectiveness claims,” which are
accompanied by the defendant’s “knowing, voluntary, and express waiver of
PCRA review.” Id. at 577-78, 580. The third exception requires “trial courts
to address claims challenging trial counsel’s performance where the defendant
is statutorily precluded from obtaining subsequent PCRA review.” See
Delgros, 183 A.3d at 361.
-4- J-S15025-24
To qualify for any of these exceptions an appellant must first raise his
ineffectiveness claims before the trial court, as the trial court must have an
opportunity to review such a claim and for the parties to fully develop the
record. See Delgros, 183 A.3d at 360-62; Holmes, 79 A.3d at 576; see
also Commonwealth v. Bomar, 826 A.2d 831, 853-55 (Pa. 2003)
(recognizing an exception allowing ineffective assistance of counsel claims to
be heard on direct appeal where “the claims have been raised and fully
developed at a hearing in the trial court,” and cautioning that lack of a trial
court opinion addressing such a claim “poses a ‘substantial impediment to
meaningful and effective appellate review’” and “oblige[s] the appellate courts
to consider matters not of record, a function that appellate courts normally do
not perform[,]” i.e., “to engage in fact-finding in the form of speculation
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J-S15025-24
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : TOLA ROSS : : Appellant : No. 52 EDA 2023
Appeal from the Judgment of Sentence Entered February 1, 2006 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0806531-2004
BEFORE: OLSON, J., NICHOLS, J., and COLINS, J. *
MEMORANDUM BY NICHOLS, J.: FILED OCTOBER 29, 2024
Appellant Tola Ross appeals nunc pro tunc from the judgment of
sentence imposed after he pled guilty to third-degree murder, arson, and
related charges. After review, we affirm.
Briefly, the trial court accepted Appellant’s plea and imposed an
aggregate sentence of twenty-seven-and-one-half to sixty years’
imprisonment on February 1, 2006. Appellant filed a timely post-sentence
motion to withdraw his guilty plea, which the trial court denied. Appellant did
not file a direct appeal. See Pa.R.A.P. 903.
Appellant subsequently filed three pro se Post Conviction Relief Act1
(PCRA) petitions, all of which were unsuccessful. In 2016, Appellant filed a ____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 42 Pa.C.S. §§ 9541-9546. J-S15025-24
petition for writ of habeas corpus in the United States District Court for the
Eastern District of Pennsylvania, which ultimately denied Appellant’s petition.
See Ross v. Bush, CV 17-73, 2019 WL 6008415 (E.D. Pa. filed Nov. 14,
2019) (unpublished order). Appellant then filed a timely appeal to the United
States Court of Appeals for the Third Circuit. The Third Circuit concluded that
Appellant’s trial counsel had been ineffective for failing to advise Appellant
about his right to appeal the trial court’s denial of Appellant’s motion to
withdraw his plea and reversed the district court’s order. See Ross v.
Superintendent Pine Grove SCI, 19-3947, 2022 WL 2816797, at *2 (3d
Cir. filed July 19, 2022) (unpublished mem.). Pursuant to the Third Circuit’s
decision, the district court conditionally granted Appellant a writ of habeas
corpus, directing that the trial court reinstate Appellant’s direct appeal rights.
The trial court reinstated Appellant’s direct appeal rights nunc pro tunc and
appointed Matthew F. Sullivan, Esq., (Attorney Sullivan) as appellate counsel
on November 23, 2022. Appellant then filed the instant timely notice of appeal
on December 13, 2022.
On June 6, 2023, Appellant filed a court-ordered Pa.R.A.P. 1925(b)
statement identifying the following substantive claim:
The trial court erred in denying [Appellant’s] motion to withdraw his guilty plea because the oral plea colloquy did not set forth an adequate factual basis for the plea as required by Pa.R.Crim.P. 590(B)(2) (comment). Our Supreme Court has explained, “The factual basis requisite is among six elements, which . . . are essential to a valid plea colloquy.”
-2- J-S15025-24
Appellant’s Rule 1925(b) Statement, 6/8/23, at 1 (citation omitted).
Thereafter, the trial court permitted Appellant to file a supplemental Rule
1925(b) statement. See Trial Ct. Order, 6/23/23. On June 26, 2023,
Appellant filed a supplemental Rule 1925(b) statement identifying the
following claim of ineffectiveness of trial counsel:
Trial counsel was ineffective for filing a post-sentence motion to withdraw guilty plea that did not include any reasons for the plea’s withdrawal. . . . Counsel’s ineffectiveness prejudiced [Appellant] because the motion, which was not supported with factual and legal authority, foreclosed [Appellant] from obtaining the requested relief.
Appellant’s Suppl. Rule 1925(b) Statement, 6/26/23, at 1 (some formatting
altered).
On June 28, 2023, the trial court issued a Rule 1925(a) opinion which
addressed the claim raised in Appellant’s first Rule 1925(b) statement, but did
not include any analysis as to Appellant’s supplemental claim concerning trial
counsel’s ineffectiveness. See Trial Ct. Op., 6/28/23, 1-8 (unpaginated).
On appeal, Appellant raises only the following issue:
Was trial counsel ineffective for filing a boilerplate post-sentence motion that offered no reason or justification why [Appellant] sought to withdraw his guilty plea?
Appellant’s Brief at 4.
Preservation of Claims
Before we address the merits of Appellant’s claims, we must determine
whether Appellant has preserved them for appeal. This Court may raise this
-3- J-S15025-24
issue of waiver sua sponte. See Commonwealth v. Wholaver, 903 A.2d
1178, 1184 (Pa. 2006). “[T]he applicability of waiver principles . . . is a
question of law, over which our standard of review is de novo and our scope
of review is plenary.” Commonwealth v. Barbour, 189 A.3d 944, 954 (Pa.
2018) (citations omitted).
Ineffective Assistance of Trial Counsel Claim
With regard to Appellant’s claim of ineffective assistance of trial counsel,
our Supreme Court has explained that “as a general rule, a petitioner should
wait to raise claims of ineffective assistance of trial counsel until collateral
review.” See Commonwealth v. Grant, 813 A.2d 726, 738 (Pa. 2002). Our
Supreme Court has recognized three exceptions to this general rule. See
Commonwealth v. Holmes, 79 A.3d 562, 577-80 (Pa. 2013);
Commonwealth v. Delgros, 183 A.3d 352, 361 (Pa. 2018). The first
exception applies to extraordinary circumstances, when a “trial court, in the
exercise of its discretion, determines that a claim [] of ineffectiveness is both
meritorious and apparent from the record so that immediate consideration
and relief is warranted.” Holmes, 79 A.3d at 577-78. The second exception
addresses “multiple and fairly common ineffectiveness claims,” which are
accompanied by the defendant’s “knowing, voluntary, and express waiver of
PCRA review.” Id. at 577-78, 580. The third exception requires “trial courts
to address claims challenging trial counsel’s performance where the defendant
is statutorily precluded from obtaining subsequent PCRA review.” See
Delgros, 183 A.3d at 361.
-4- J-S15025-24
To qualify for any of these exceptions an appellant must first raise his
ineffectiveness claims before the trial court, as the trial court must have an
opportunity to review such a claim and for the parties to fully develop the
record. See Delgros, 183 A.3d at 360-62; Holmes, 79 A.3d at 576; see
also Commonwealth v. Bomar, 826 A.2d 831, 853-55 (Pa. 2003)
(recognizing an exception allowing ineffective assistance of counsel claims to
be heard on direct appeal where “the claims have been raised and fully
developed at a hearing in the trial court,” and cautioning that lack of a trial
court opinion addressing such a claim “poses a ‘substantial impediment to
meaningful and effective appellate review’” and “oblige[s] the appellate courts
to consider matters not of record, a function that appellate courts normally do
not perform[,]” i.e., “to engage in fact-finding in the form of speculation
concerning the strategy counsel pursued a trial, a function that [appellate
courts] were ill-suited to assume” (citation omitted)).
Appellant argues that this case is “a unique situation” where trial
counsel’s ineffectiveness is “apparent from the record,” thereby warranting a
merits review on direct appeal. Appellant’s Brief at 8-9. However, Appellant
did not raise this ineffectiveness claim before the trial court until well after the
notice of appeal was filed, and the trial court has neither had an opportunity
to review this claim in the first instance 2 nor have the parties developed a full ____________________________________________
2 Appellant first raised this claim of ineffective assistance of trial counsel on
direct review in a supplemental Rule 1925(b) statement dated June 26, 2023, six months after he filed his notice of appeal. As noted above, the trial court did not address this ineffectiveness claim in its Rule 1925(a) opinion.
-5- J-S15025-24
record for our review. See Holmes, 79 A.3d at 577. The record does not
reflect that Appellant waived his right to subsequent PCRA review. See id. at
563-64. Nor are there factors indicating that Appellant is statutorily barred
from seeking PCRA relief. See Delgros, 183 A.3d at 361. For these reasons
we conclude that Appellant has failed to establish any of the recognized
exceptions to the general rule that claims of ineffective assistance of counsel
must be deferred for collateral review. See Grant, 813 A.2d at 738; see also
Delgros, 183 A.3d at 361; Holmes, 79 A.3d at 576. Therefore, we cannot
consider Appellant’s ineffectiveness claim in this direct appeal. Grant, 813
A.2d at 738; see also Delgros, 183 A.3d at 361; Holmes, 79 A.3d at 576.
Substantive Claim of Error
Further, Appellant’s brief fails to include any argument to support his
substantive challenge to the denial of his post-sentence motion to withdraw
his guilty plea, which requires the demonstration of manifest injustice.
“Manifest injustice may be established if the plea was not tendered knowingly,
intelligently, and voluntarily.” See Commonwealth v. Broaden, 980 A.2d
124, 129 (Pa. Super. 2009) (citations omitted). Whether a plea was knowing,
intelligent, and voluntary is determined by examining the totality of the
circumstances, namely: (1) the nature of the charge; (2) the factual basis of
the plea; (3) the right to trial by jury; (4) the presumption of innocence; (5)
the sentencing range; and (6) the trial court’s authority to depart from any
recommended sentence. Commonwealth v. Morrison, 878 A.2d 102, 107
(Pa. Super. 2005) (en banc); Pa.R.Crim.P. 590(A)(2), Comment. The law
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presumes that a guilty plea is valid and a defendant bears the burden of
proving otherwise. Commonwealth v. Reid, 117 A.3d 777, 783 (Pa. Super.
2015). A defendant is also bound by his statements made during the plea
colloquy. Commonwealth v. Pollard, 832 A.2d 517, 523 (Pa. Super. 2003).
Appellant asserts in his Pa.R.A.P. 1925(b) statement that the factual
basis for the oral colloquy of his guilty plea was inadequate but fails to argue
facts in his brief to support his bald assertion that manifest injustice resulted
when the trial court denied his motion to withdraw his plea. Accordingly, this
substantive claim of error is abandoned and no relief is due. For these
reasons, we affirm the judgment of sentence.
Judgment of sentence affirmed. Jurisdiction relinquished.
Date: 10/29/2024
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