Com. v. Thomas, T.

• Court: Superior Court of Pennsylvania
• Decided: September 28, 2015
• Docket: 483 WDA 2015
• Status: Unpublished

Opinion

J-S55033-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : TYRONE THOMAS, : : Appellant : No. 483 WDA 2015

Appeal from the PCRA Order Entered February 23, 2015 in the Court of Common Pleas of Allegheny County, Criminal Division, at No(s): CP-02-CR-0002359-2011 and CP-02-CR-0004968-2010

BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E, and STRASSBURGER,* J.

MEMORANDUM BY STRASSBURGER, J.: FILED SEPTEMBER 28, 2015

Tyrone Thomas (Appellant) appeals pro se from the order which

denied his petition filed pursuant to the Post Conviction Relief Act (PCRA), 42

Pa.C.S. §§ 9541-9546. We affirm.

This Court previously summarized the history of this case as follows:

Following his arrest in connection with the March 14, 2010 shooting death of a retired firefighter, Mark Barry, Appellant was charged in the adult division of the trial court with criminal homicide, robbery, carrying a firearm without a license, and criminal conspiracy. Additionally, following his arrest in connection with the March 21, 2010 shooting into the occupied residence of Portia Smithson, Appellant was charged in the adult division of the trial court with two counts of aggravated assault, four counts of recklessly endangering another person, one count of conspiracy, one count of discharging a firearm into an occupied structure, and one count of possessing a firearm by a minor. Upon notice by the Commonwealth, the cases were joined, and on July 2, 2010, Appellant filed a counseled motion

*Retired Senior Judge assigned to the Superior Court. J-S55033-15

seeking to decertify the criminal proceedings and transfer the cases to the juvenile division.

Following a hearing on the matter, the trial court denied Appellant’s motion to decertify the criminal proceedings, and on May 2, 2011, Appellant proceeded to a guilty plea hearing….

Commonwealth v. Thomas, 67 A.3d 838, 838-39 (Pa. Super. 2013)

(footnotes omitted). The Commonwealth, per the plea agreement,

recommended an aggregate sentence of 40 to 80 years of imprisonment.

The trial court accepted the plea and imposed the negotiated sentence. On

direct appeal, this Court affirmed the trial court’s denial of his decertification

motion. Id.

Appellant pro se filed a PCRA petition on October 15, 2013, but was

subsequently granted leave by our Supreme Court to file a petition for

allowance of appeal nunc pro tunc. The trial court initially appointed PCRA

counsel, but later entered an order staying the PCRA action during the

pendency of Appellant’s direct appeal. Our Supreme Court denied

Appellant’s petition for allowance of appeal on April 4, 2014.

Commonwealth v. Thomas, 89 A.3d 661 (Pa. 2014). Appellant filed

another PCRA petition on May 6, 2014, stating substantially the same claims

as in his original petition.

On September 2, 2014, PCRA counsel filed a motion to withdraw as

counsel and a letter brief pursuant to Commonwealth v. Turner, 544 A.2d

927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super.

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1988) (en banc). On September 25, 2014, the PCRA court granted counsel

leave to withdraw and issued a notice of intent to dismiss the petition

without a hearing pursuant to Pa.R.Crim.P. 907. On February 25, 2015, the

PCRA court entered an order denying the petition.

Appellant timely filed a notice of appeal. The PCRA court did not order

Appellant to file a statement of errors complained of on appeal, and none

was filed. In lieu of filing an opinion pursuant to Pa.R.A.P. 1925(a), the

PCRA court pointed to its notice of intent to dismiss for its reasons for

denying Appellant’s petition. On appeal, Appellant presents this Court with

several arguments that his guilty plea was induced by the ineffective

assistance of plea counsel. Appellant’s Brief at 2.

“Our standard of review of a trial court order granting or denying relief

under the PCRA calls upon us to determine ‘whether the determination of the

PCRA court is supported by the evidence of record and is free of legal error.’”

Commonwealth v. Barndt, 74 A.3d 185, 192 (Pa. Super. 2013) (quoting

Commonwealth v. Garcia, 23 A.3d 1059, 1061 (Pa. Super. 2011)).

We begin by noting that counsel is presumed to be effective.

Commonwealth v. Simpson, 112 A.3d 1194, 1197 (Pa. 2015). To prevail

on a claim of ineffective assistance of counsel, a PCRA petitioner must prove

each of the following: “(1) the underlying legal claim was of arguable merit;

(2) counsel had no reasonable strategic basis for his action or inaction; and

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(3) the petitioner was prejudiced—that is, but for counsel’s deficient

stewardship, there is a reasonable likelihood the outcome of the proceedings

would have been different.” Id.

Allegations of ineffectiveness in connection with the entry of a guilty plea will serve as a basis for relief only if the ineffectiveness caused the defendant to enter an involuntary or unknowing plea. Where the defendant enters his plea on the advice of counsel, the voluntariness of the plea depends on whether counsel’s advice was within the range of competence demanded of attorneys in criminal cases.

Commonwealth v. Moser, 921 A.2d 526, 531 (Pa. Super. 2007) (internal

quotations and citations omitted). “Thus, to establish prejudice, the

defendant must show that there is a reasonable probability that, but for

counsel’s errors, he would not have pleaded guilty and would have insisted

on going to trial.” Commonwealth v. Barndt, 74 A.3d 185, 192 (Pa.

Super. 2013) (citation and internal quotation marks omitted).

In his brief, Appellant offers the following claims of plea counsel’s

ineffectiveness: (1) ignoring inconsistent statements and other evidence that

called the credibility of witnesses into question, Appellant’s Brief at 8-9; (2)

coaching Appellant through the plea colloquy although he was aware that

Appellant was under the influence of drugs at the time, id. at 8-11; and (3)

failing to use “vital information” from Appellant’s mother that “could make

the entire interrogation illegal,” id. at 8.

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Appellant’s claims regarding information known by his mother and his

being under the influence of drugs at the time of the plea are not stated in

either his 2013 or 2014 PCRA petition. Accordingly, they are waived. See,

e.g., Commonwealth v. Camps, 772 A.2d 70, 74 (Pa. Super. 2001) (“[A]

review of Appellant’s PCRA petition … reveals that he failed to raise the

above claims in his petition. As such, these claims are waived.”).

Appellant’s remaining claim is that his plea was not knowing and

voluntary because plea counsel ignored the fact that Appellant’s co-

defendant, his co-defendant’s nephew, and his co-defendant’s girlfriend gave

inconsistent statements to detectives, Appellant’s Brief at 7-9; and counsel

did not consult with him after Appellant wrote to him, immediately after the

plea, to say he “was unhappy with the plea and … wanted to withdraw the

plea.” PCRA Petition, 5/6/2014, at ¶ 8.

Appellant fails to address separately each of the three prongs

necessary to establish ineffective assistance of counsel, and we could on that

basis alone deny him relief. See, e.g., Commonwealth v. Steele, 961

A.2d 786, 797 (Pa. 2008) (“[W]here Appellant has failed to set forth all

three prongs of the ineffectiveness test and meaningfully discuss them, he is

not entitled to relief, and we are constrained to find such claims waived for

lack of development.”).

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However, it is clear from the record that Appellant’s claim warrants no

relief. We find instructive the case of Commonwealth v. Brown, 48 A.3d

1275 (Pa. Super. 2012). In that case, Brown made the argument “that he

was essentially forced into pleading guilty because counsel did not

adequately prepare for trial and did not adequately consult with” him. Id. at

1277. This Court rejected Brown’s claim that he was entitled to PCRA relief

as follows:

The law does not require that an appellant be pleased with the results of the decision to enter a guilty plea; rather [a]ll that is required is that [the appellant’s] decision to plead guilty be knowingly, voluntarily and intelligently made.

A defendant is bound by the statements made during the plea colloquy, and a defendant may not later offer reasons for withdrawing the plea that contradict statements made when he pled. Claims of counsel’s ineffectiveness in connection with a guilty plea will provide a basis for relief only if the ineffectiveness actually caused an involuntary or unknowing plea.

[Brown’s] position is that, because of all the foregoing points, he felt coerced, at the time of his plea hearing, to enter a guilty plea. However, at that hearing, [Brown] testified that it was his decision to plead guilty, and that he was satisfied with the representation provided by counsel. [Brown] is bound by the statements made during the plea colloquy, and he may not now offer contradictory reasons for withdrawing his plea. [Brown] may not be pleased with the results of entering a guilty plea, but he cannot now obtain relief by claiming he felt pressured by counsel to plead guilty.

Id. at 1277-78 (internal citations and quotation marks omitted).

Similarly, in the instant case, Appellant indicated at his plea hearing,

under oath, that he had fully discussed his case with counsel and was

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satisfied with his attorney’s assistance. N.T., 5/2/2011, at 5. He stated that

he had not consumed any drugs or alcohol in the last 24 hours, and was not

on any medication. Id. at 16. Appellant testified that he understood that he

was giving up his right to affect his case favorably and to proceed to trial at

which the Commonwealth would have to prove his guilt beyond a reasonable

doubt. Id. at 14-15. Appellant acknowledged, both before and after the

recitation of the factual basis of the plea, that he did the things the

Commonwealth alleged. Id. at 18, 24. He testified that he understood the

terms of the plea and was not pleading guilty because of any promises,

threats, or other representations made to him to cause him to give up his

right to a trial. Id. at 17.

Appellant is bound by his statements and cannot now claim that they

were untrue. Commonwealth v. Pollard, 832 A.2d 517, 523 (Pa. Super.

2003) (“The longstanding rule of Pennsylvania law is that a defendant may

not challenge his guilty plea by asserting that he lied while under oath, even

if he avers that counsel induced the lies.”). The fact that he is unhappy with

his decision to plead guilty does not warrant PCRA relief.

Order affirmed.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9/28/2015

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