Com. v. Walston, L.

• Court: Superior Court of Pennsylvania
• Decided: May 13, 2021
• Docket: 1286 EDA 2020
• Status: Unpublished

Opinion

J-S13038-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : LANCE WALSTON : : Appellant : No. 1286 EDA 2020

Appeal from the PCRA Order Entered June 9, 2020 In the Court of Common Pleas of Chester County Criminal Division at No(s): CP-15-CR-0002118-2018

BEFORE: OLSON, J., KING, J., and PELLEGRINI, J.*

MEMORANDUM BY PELLEGRINI, J.: Filed: May 13, 2021

Lance Walston appeals the order of the Court of Common Pleas of

Chester County (“PCRA court”) denying his petition for post-conviction relief.

In 2019, Walston entered a negotiated plea as to two criminal cases at docket

numbers, CP-15-CR-2118-2018 (“case 2118”) and CP-15-CR-911-2019

(“case 911”). As to case 2118, he received a prison term of 2 to 4 years, and

as to case 911, he received a consecutive prison term of 1 to 2 years, followed

by 2 years of probation. Walston filed a petition pursuant to the Post-

Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546, claiming that part of

his sentence must be vacated because his plea counsel had assured him that

case 911 would be dismissed if he entered a plea as to case 2118. We affirm.

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* Retired Senior Judge assigned to the Superior Court. J-S13038-21

I.

In 2019, Walston entered a negotiated plea agreement as to two cases

involving the sale of narcotics. Case 911 concerned one count of possession

with intent to deliver,1 and case 2118 concerned that same offense, but on a

different date. The written global plea agreement clearly provided that

Walston would be entering a plea as to two separate counts, and that he would

be receiving consecutive sentences as to each case.

The terms outlined in the global plea agreement mirrored the two

sentences that Walston ultimately received. The agreement bears Walston’s

signature, and he initialed several specific items on the plea form indicating

that he understood the charges and the penalties that would be imposed.

Specifically, as to the voluntariness of the plea, Walston initialed the

lines stating that no one had made promises other than what was contained

in the written plea agreement forms. He also signed and initialed the page

stating that his plea counsel had fully discussed the plea with him and that

the decision to enter the plea was Walston’s alone. Walston then reaffirmed

orally that he was satisfied with plea counsel’s explanation about all plea

terms, allowing him to make a voluntary decision to enter the plea. See Plea

Hearing Transcript, 3/22/2019, at pp. 5-6.

1 35 Pa.C.S. § 780-113(a)(30).

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As to the imposition of penalties, the transcript of the plea hearing is

fully consistent with what the written plea forms reflects:

[Court]: On [case] 2118 . . . charging possession with intent to deliver, you’re sentenced to two to four years state incarceration. You’ll have credit for the time you have already served from May 22nd of 2018 until today’s date. You’re to pay a ten dollar fine, plus costs of prosecution. You’re to have a drug and alcohol evaluation and follow recommendations for treatment. Court costs will include the lab fee. And you owe restitution in the amount of two hundred dollars to the Chester County Municipal Drug Task Force. You are not eligible for the RRRI program.

On [case] 911 . . . charging possession with intent to deliver, you’re sentenced to one to two years state incarceration to run consecutively to term 2118 of 2018. So you’re serving an aggregate of three to six years.

[Walston]: Yes.

[Court]: You have to do the drug and alcohol treatment if it’s been recommended for you and pay a ten dollar fine, plus court costs. Again, you’re not RRRI eligible on that offense either. There is two years consecutive probation on that case.

****

[Court]: So you need to get away from where you have been using in the past. And you need to get away from the people. That’s really going to be your bottom line. Do you have any questions at all about the sentence?

[Walston]: No. I appreciate everything.

Id. at pp. 8-10 (emphasis added).

Walston timely filed a post-sentence motion to modify the terms of his

sentence, as well as a motion challenging the validity of his plea. Both of

those motions were denied. He did not file a direct appeal as to the judgment

of sentence. Rather, Walston filed a timely PCRA petition, pro se, on August

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2, 2019, and PCRA counsel was appointed days later. On December 26, 2019,

PCRA counsel filed a no-merit letter and a petition to withdraw pursuant to

the requirements of Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988),

and Commonwealth v. Finley, 550 A.2d 213 (Pa. 1988). Walston filed an

objection to counsel’s withdrawal, insisting that plea counsel’s misadvice had

caused him to enter his plea involuntarily.

The PCRA court denied Walston’s petition and granted PCRA counsel’s

application to withdraw from the case. In its 1925(a) opinion, the PCRA court

treated Walston’s claim of error as a challenge to the voluntariness of his plea

based on counsel’s misadvice. See 1925(a) Opinion, 9/29/2020, at 2-3.

Walston timely appealed, and in his pro se appellate brief, he raises

three related issues. He claims first that his plea counsel was ineffective by

misadvising that in exchange for his plea, another case would be dismissed,

rendering his plea involuntary. Next, he claims that plea counsel was

ineffective in not seeking to have the purported plea agreement enforced.

Lastly, Walston claims that the plea agreement must be enforced, resulting in

the sentence being vacated as to case 911.2

2 Walston appears to be making alternative claims that his plea should be found invalid, and that his valid plea should be enforced. In his PCRA petition, Walston similarly sought both a new trial and a correction of his sentence. See PCRA Petition, 8/2/2019, at p. 6. We construe the request to vacate the plea as a PCRA claim, and the request to enforce the plea as a request for specific performance as to a contract. While the latter claim falls outside of the ambit of the PCRA, this Court may still consider its merits. See generally Commonwealth v. Kerns, 220 A.3d 607, 611-12 (Pa. Super. 2019).

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II.

All three of Walston’s appellate claims hinge on the voluntariness of his

plea and whether the terms of his sentences correspond to his global plea

agreement. The first claim is that Walston’s plea counsel was ineffective in

failing to communicate the sentence he would be receiving in exchange for his

pleas in the two subject cases. The denial of PCRA relief will be upheld if the

ruling of the PCRA court is supported by the record and free of legal error.

Commonwealth v. Washington, 927 A.2d 586, 593–94 (Pa. 2007).

To prevail on an ineffectiveness claim, the petitioner must show: (1)

that the claim is of arguable merit; (2) that counsel had no reasonable

strategic basis for his or her action or inaction; and, (3) that but for the errors

and omissions of counsel, there is a reasonable probability that the outcome

of the proceedings would have been different. Commonwealth v. Pierce,

527 A.2d 973, 974 (Pa. 1987). If a petitioner fails to satisfy any prong of the

ineffectiveness test, then the claim must be rejected. See Commonwealth

v. Natividad, 938 A.2d 310, 322 (Pa. 2007).

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

process as well as during trial.” Commonwealth v. Hickman, 799 A.2d 136,

141 (Pa. Super. 2022). “A defendant is permitted to withdraw his guilty plea

under the PCRA if ineffective assistance of counsel caused the defendant to

enter an involuntary plea of guilty.” Commonwealth v. Kersteter, 877 A.2d

466, 468 (Pa. Super. 2005). In a PCRA claim of ineffective plea counsel, the

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prejudice prong requires a showing that there is a reasonable likelihood that

but for plea counsel’s deficient performance, he would have gone to trial. See

Commonwealth v. Rathfon, 899 A.2d 365, 370 (Pa. Super. 2006).

However, a PCRA petitioner is bound by the sworn statements made

during the plea colloquy; he may not contradict those statements when

seeking to withdraw the plea or asserting that plea counsel was ineffective.

See Commonwealth v. Brown, 48 A.3d 1275, 1277-78 (Pa. Super. 2012);

Commonwealth v. Yeomans, 24 A.3d 1044, 1047 (Pa. Super. 2011);

Commonwealth v. Baney, 860 A.2d 127, 132 (Pa. Super. 2004).

In this case, the record refutes Walston’s ineffectiveness claim because

in both the sworn plea colloquy and in his signed plea agreement, Walston

stated that he understood he would be entering a plea as to two separate

matters, cases 2118 and 911. He was then sentenced exactly as outlined in

the negotiated plea agreement. Walston is bound by the statements he made

during the plea colloquy, so the underlying claim that he was misadvised by

plea counsel has no merit. Thus, this first appellate claim was properly denied.

For the same reasons, no relief is due with respect to Walston’s second

appellate claim. Walston has argued that plea counsel was ineffective by not

objecting to the sentence on the ground that he had negotiated to have case

911 dismissed. This claim is unsubstantiated and, in fact, the record shows

that Walston’s sentence in the two cases matches the terms stated in the

negotiated plea agreement. Walston has not carried his burden of

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demonstrating that his plea was involuntary, and plea counsel cannot be found

ineffective for failing to assert a baseless objection to the sentence. Thus,

Walston’s second appellate claim has no merit.

Lastly, Walston has asserted in the third appellate ground that this Court

should enforce his plea agreement with the Commonwealth by vacating the

sentence as to case 911. While such claims fall outside the scope of the PCRA,

they may nevertheless be considered here under the contractual enforcement

theory of specific performance. See Commonwealth v. Snook, 230 A.3d

438, 446 (Pa. Super. 2020); Commonwealth v. Kerns, 220 A.3d 607, 611-

12 (Pa. Super. 2019).

However, regardless of whether this claim falls under the PCRA or

contract law, no relief would be due. As stated above, the record confirms

that Walston received the sentencing terms that he had negotiated, and he is

not entitled to alter them. Thus, for all the reasons outlined above, the PCRA

court did not err in denying Walston’s claims, and the order on review must

stand.

Order affirmed.

Judge Olson joins the memorandum.

Judge King did not participate in the consideration or decision of this

case.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 5/13/21

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