Com. v. Wilkerson, O.

• Court: Superior Court of Pennsylvania
• Decided: September 14, 2020
• Docket: 1579 EDA 2019
• Status: Unpublished

Opinion

J-S27024-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : OTIS WILKERSON, : : Appellant : No. 1579 EDA 2019

Appeal from the PCRA Order Entered May 9, 2019 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0510891-2006

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : OTIS WILKERSON, : : Appellant : No. 1581 EDA 2019

Appeal from the PCRA Order Entered May 9, 2019 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0808421-2006

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : OTIS WILKERSON, : : Appellant : No. 1582 EDA 2019

Appeal from the PCRA Order Entered May 9, 2019 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0009610-2015 J-S27024-20

BEFORE: SHOGAN, J., McCAFFERY, J., and STEVENS, P.J.E.*

MEMORANDUM BY McCAFFERY, J.: FILED SEPTEMBER 14, 2020

In these consolidated cases,1 Otis Wilkerson (Appellant) appeals from

the orders entered in the Philadelphia County Court of Common Pleas, denying

his timely petitions filed pursuant to the Post Conviction Relief Act2 (PCRA),

seeking collateral relief from his guilty plea to charges of, inter alia, rape and

involuntary deviate sexual intercourse (IDSI)3 in three separate cases. On

appeal, Appellant contends the PCRA court erred in dismissing his petitions

without first conducting an evidentiary hearing on his claim that plea counsel

rendered ineffective assistance. We affirm.

The relevant factual and procedural history underlying these appeals is

as follows. On February 28, 2011, Appellant entered a guilty plea in three

separate cases — Docket Nos. 1891-2006, 8421-2006, and 873-2009 —

arising from “three separate occasions in which he took young women against

their will to remote locations, raped them and, in two instances, stole from

them.” Commonwealth v. Wilkerson, 1227 EDA 2016 (unpub. memo. at

1) (Pa. Super. 2018) (citation omitted) (direct appeal following remand). The

trial court sentenced him to an aggregate term of 40 to 80 years’ ____________________________________________

* Former Justice specially assigned to the Superior Court.

1This Court consolidated these appeals sua sponte by order entered February 20, 2020. See Order, 2/20/20.

2 42 Pa.C.S. §§ 9541-9546.

3 18 Pa.C.S. §§ 3121(a)(1), 3123(a)(1).

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imprisonment. On direct appeal, this Court vacated the judgments of

sentence after concluding Appellant’s guilty plea was involuntarily entered

because he was not advised his sentences could be imposed to run

consecutively. Commonwealth v. Wilkerson, 3059 EDA 2011 (unpub.

memo. at 4) (Pa. Super. 2013). The Commonwealth’s petition for allowance

of appeal was denied by the Pennsylvania Supreme Court. Commonwealth

v. Wilkerson, 629 EAL 2013 (Pa. 2014).

Upon remand, the charges at Docket No. 873-2009 were nolle prossed

by the Commonwealth. See PCRA Ct. Op. 9/17/19 at 2 n.1. Appellant chose

to proceed to trial on the remaining charges. However, prior to trial, Appellant

was arrested and charged at Docket No. 9610-2015 with rape and related

offenses for his attack on another victim in 2005.4 That case was subsequently

“consolidated with the two remaining bills of information” at Docket Nos.

1891-2006 and 8421-2006. Id. at 2.

Although trial was originally scheduled for July 13, 2015, Appellant

requested a continuance so that he could secure private counsel. Wilkerson,

1227 EDA 2016 (unpub. memo. at 2). The following day, W. Fred Harrison,

Jr., Esquire, entered his appearance for Appellant, and the court continued

trial until November 17, 2015. Id.

____________________________________________

4 The trial court explained that Appellant was originally arrested for this incident in January of 2006, but the charges were withdrawn several months later when the victim failed to appear. PCRA Ct. Op. at 2 n.2. The Commonwealth reinstated the charges on July 21, 2015. Id.

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On November 17, 2015, Appellant informed the trial court that he was

“ready to proceed with trial,” and a jury panel was sworn. N.T., 11/17/15, at

11. However, shortly thereafter, Appellant requested a short recess so that

he could talk with his sister. See id. at 12. When Appellant returned, Attorney

Harrison informed the court that Appellant decided to enter an open guilty

plea. Id. Because Appellant had filed a pretrial motion to dismiss the charges

based on a violation of the speedy trial rule, see Pa.R.Crim.P. 600, the

Commonwealth summarized the procedural history of the case prior to the

entry of the plea. See id. at 13-18. The court then denied the Rule 600

motion.

On that same day, Appellant proceeded to enter a guilty plea to the

following charges: (1) rape, IDSI, and robbery5 at Docket No. 1891-2006;

(2) rape, IDSI, and indecent assault6 at Docket No. 8421-2006; and (3), rape,

IDSI, robbery, aggravated assault,7 and unlawful contact with a minor8 at

Docket 9610-2015. The trial court sentenced Appellant to an aggregate term

of 35 to 70 years’ imprisonment.9 Specifically, at Docket No. 9610-2015, the ____________________________________________

5 18 Pa.C.S. § 3701(a)(1)(i).

6 18 Pa.C.S. § 3126(a)(1).

7 18 Pa.C.S. § 2702(a)(1).

8 18 Pa.C.S. § 6318(a)(1).

9We note that at the conclusion of the sentencing hearing, the Commonwealth notified Appellant of his registration requirements as a sexual violent predator

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court imposed consecutive sentences of 10 to 20 years’ imprisonment for the

charges of rape, robbery and IDSI, and a consecutive term of five to 10 years’

imprisonment for unlawful contact with a minor. All of the other sentences

were imposed to run concurrently.10 This Court affirmed the judgment of

sentence on direct appeal. See Wilkerson, 1227 EDA 2016.

(SVP) under the then-applicable registration act. See N.T., 11/17/15, at 43- 46. The Commonwealth stated that Appellant was determined to be an SVP prior to his first sentencing hearing, and did not contest that conclusion. Id. at 43. Moreover, on appeal, he does not challenge his status as an SVP or his registration requirements under the now-applicable Sex Offender Registration and Notification Act (SORNA II), 42 Pa.C.S. §§ 9799.10-9799.71. See Commonwealth v. Butler, 226 A.3d 972, 976 (Pa. 2020) (holding the registration, notification and counseling requirements of Pennsylvania’s sexual offender notification and registration act “do not constitute criminal punishment and therefore the procedure for designating individuals as [sexually violent predators] under [42 Pa.C.S. §] 9799.24(e)(3) is . . . constitutionally permissible”); Commonwealth v. Lacombe, ___ A.3d ___, 2020 WL 4150283 (Pa. 2020) (holding Subchapter I of SORNA II, which applies to sexual offenders whose crimes occurred between April 1996 and December 2012, “is nonpunitive and does not violate the constitutional prohibition against ex post facto laws”).

10 At Docket No. 1891-2006, the court imposed consecutive sentences of 10 to 20 years’ imprisonment for each offense. Similarly, at Docket No. 9610- 2006, the court imposed consecutives sentences of 10 to 20 years’ imprisonment for rape and IDSI, and a consecutive term of two and one-half to five years’ imprisonment for indecent assault. However, the aggregate sentences at both of those dockets run concurrently to the aggregate 35 to 70 year term at Docket No. 9610-2015.

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On April 30, 2018, Appellant filed a timely, pro se PCRA petition,

asserting counsel’s ineffectiveness caused him to enter an involuntary plea.11

New counsel was appointed, and on September 18, 2019, filed an amended

petition12 and accompanying memorandum of law, claiming plea counsel was

ineffective for failing to adequately prepare for trial and incorrectly informing

Appellant he could appeal from the denial of his Rule 600 motion even if he

pled guilty. See Appellant’s Memorandum of Law, 9/18/18, at 7

(unpaginated). Counsel specifically requested an evidentiary hearing, and

attached to his amended petition certifications as to the proposed witnesses’

testimony. On March 19, 2019, the PCRA court issued notice of its intent to

dismiss the petition without first conducting an evidentiary hearing pursuant

to Pa.R.Crim.P. 907. Appellant filed a pro se response on April 11, 2019.

However, on May 9th, the PCRA court entered an order at each trial court

docket dismissing Appellant’s petition. These timely appeals follow.13

11Appellant listed all three trial court docket numbers on his pro se petition, which appears to have been simply photocopied and placed in each certified record.

12We note that while counsel listed all three docket numbers on the amended petition, the time stamp on each document indicates a separate document was filed at each docket number.

13We note that Appellant complied with the requirements of Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018), and filed separate notices of appeal at each trial docket number. Further, Appellant filed a timely statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b) in response to the PCRA court’s order.

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Appellant’s sole claim raised on appeal is that the PCRA court erred in

dismissing his petition without first conducting an evidentiary hearing. See

Appellant’s Brief at 13. Appellant maintains:

[I]t was counsel’s ineffectiveness that induced [ ] Appellant’s plea. It was a fact that trial counsel was not prepared for trial. [Counsel] failed to discuss the case with his client prior to the start of trial. Most significantly, counsel gave [ ] Appellant incorrect information regarding whether he could appeal the Rule 600 issue. Counsel failed to investigate, contact witnesses or obtain any evidence that could have enabled [ ] Appellant to present a defense.

Id. at 17. He insists the PCRA court was required to conduct a hearing to

determine the “material issues of fact” he raised in his petition. Id. at 18.

Our review of an order denying a PCRA petition is well-settled: “we

must determine whether the PCRA court’s order ‘is supported by the record

and free of legal error.’” Commonwealth v. Johnson, 139 A.3d 1257, 1272

(Pa. 2016) (citation omitted). Moreover, we emphasize:

“[A] petitioner is not entitled to a PCRA hearing as a matter of right; the PCRA court can decline to hold a hearing if there is no genuine issue concerning any material fact and the petitioner is not entitled to post-conviction collateral relief, and no purpose would be served by any further proceedings.” “A reviewing court on appeal must examine each of the issues raised in the PCRA petition in light of the record in order to determine whether the PCRA court erred in concluding that there were no genuine issues of material fact and in denying relief without an evidentiary hearing.”

Commonwealth v. Smith, 121 A.3d 1049, 1052 (Pa. Super. 2015) (citations

omitted). The decision to deny a request for an evidentiary hearing is “within

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the discretion of the PCRA court and will not be overturned absent an abuse

of discretion.” Commonwealth v. Mason, 130 A.3d 601, 617 (Pa. 2015).

Where, as here, a petitioner’s claims raise allegations of prior counsel’s

ineffectiveness,

the petitioner must demonstrate: (1) that the underlying claim has arguable merit; (2) that no reasonable basis existed for counsel's actions or failure to act; and (3) that the petitioner suffered prejudice as a result of counsel’s error. . . . Counsel is presumed to be effective; accordingly, to succeed on a claim of ineffectiveness the petitioner must advance sufficient evidence to overcome this presumption.

Commonwealth v. Johnson, 139 A.3d 1257, 1272 (Pa. 2016) (citations

omitted). Furthermore, we note:

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.

“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. Pier, 182 A.3d 476, 478–79 (Pa. Super. 2018) (citations

omitted).

In the present case, Appellant insists the trial court abused its discretion

when it denied his request for an evidentiary hearing so that he could prove

the ineffectiveness of plea counsel, Attorney Harrison, caused him to enter an

involuntary plea. Attached to his amended petition were four witness

certifications by PCRA counsel, three of which included affidavits by proposed

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witnesses. See Commonwealth v. Pander, 100 A.3d 626, 642 (Pa. Super.

2014) (witness certification requirement of PCRA “can be met by an attorney

or pro se petitioner certifying what the witness will testify regarding[;]”

overruling Commonwealth v. McLaurin, 45 A.3d 1131 (Pa. Super 2012),

“insofar as it requires PCRA petitioner to file affidavits to be entitled to an

evidentiary hearing”).

PCRA counsel first included a certification concerning Appellant’s

proposed testimony and attached an affidavit from Appellant. PCRA counsel

certified that Appellant would testify Attorney Harrison was unprepared for

trial, assured Appellant he could raise a speedy trial claim on appeal, and

“strongly urged” Appellant to plead guilty. Appellant’s Amended Petition

Under Post Conviction Relief Act, 9/18/18, Certification regarding Appellant at

2 (unpaginated). Notably, however, Appellant’s attached affidavit, dated

August 7, 2018, made no mention of these claims. Rather, it focuses on

arguments concerning Appellant’s innocence of the charged offenses. In the

second certification, counsel simply asserted that he would call prior plea

counsel to testify “as to his trial preparation and the conversations, advice he

gave and other interactions with [Appellant].” Id., Certification regarding

Fred Harrison, Esquire.14 PCRA counsel also attached affidavits from

14We note PCRA counsel did not certify that Attorney Harrison would confirm Appellant’s allegations that (1) Attorney Harrison was unprepared for trial and (2) Attorney Harrison incorrectly informed Appellant that he could appeal the speedy trial issue following a guilty plea.

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Appellant’s sister, Yolanda Velazquez — who averred plea counsel was

unprepared for trial and advised Appellant he could raise his speedy trial claim

on appeal — and Appellant’s former fiancée, Ronetta McLean — who averred

that the apartment complex where they lived at the time of one of the offenses

had security cameras, which may have been helpful to his defense.15

What Appellant ignores, however, is “‘[t]he longstanding rule of

Pennsylvania law . . . 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.’” See Pier, 182 A.3d at 480 (citation omitted). Indeed, it is well-

settled that:

“A person who elects to plead guilty is bound by the statements he makes in open court while under oath and he may not later assert grounds for withdrawing the plea which contradict the statements he made at his plea colloquy.” Commonwealth v. Pollard, 832 A.2d 517, 523 (Pa. Super. 2003).

Id.

Here, the record reveals that Appellant stated his intention to proceed

to trial on November 17, 2015. Indeed, the trial court asked him if he had “a

chance to discuss with [his] lawyer whether [he wanted] to plead or go to

trial[,]” to which Appellant responded, “Yes, I did” and stated, “I’m ready to

proceed with trial.” N.T., 11/17/15, at 11. At that time, the jury panel was

15 Appellant’s Amended Petition Under Post Conviction Relief Act, 9/18/18, Affidavit of Yolanda Velazquez, 7/25/18, at 2 (unpaginated); Affidavit of Ronetta McLean, 7/21/18.

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sworn and the trial court delivered opening remarks. Id. Thereafter, the

following exchange occurred:

THE COURT: All right. I think you wanted to take a short recess?

[Plea Counsel]: Yes, Your Honor.

THE COURT: We can do that now. Your client wanted to talk to his sister. Does she need to go to the booth? . . .

All right. A short recess.

Id. at 12. After the brief recess, Appellant proceeded to enter an open guilty

plea.

Appellant signed a written guilty plea colloquy for each case which

included the following paragraph:

SATISFIED WITH MY LAWYER

I am satisfied with the advice and service I received from my lawyer. My lawyer spent enough time on my case and I had enough time to talk with my lawyer about the case. My lawyer left the final decision to me and I decided myself to plead guilty.

Written Guilty Plea Colloquy, 11/17/15, at 3. 16 Furthermore, Attorney

Harrison signed a certification on each colloquy attesting that Appellant read

the colloquy in his presence and “appeared to fully understand it[,]” and that

counsel answered any questions Appellant may have had. Id. at 4.

Moreover, relevant to the specific claims raised herein, the following

exchange occurred during the oral colloquy:

16Each written colloquy contained the same language and was signed by Appellant and counsel.

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THE COURT: If you were to go to trial, . . . you could be found not guilty and that would be the end of the case. Or, if you were found guilty, you could appeal to the Superior Court. And you know how the process works, you’ve been through that before. In that appeal you could raise any issue you wanted to raise.

However, when you plead guilty, you have a limited appeal right. You can only complain about the jurisdiction of this court, legality of my sentence, the voluntariness of your plea, and you can always raise ineffective assistance of counsel.

Have you had a change to discuss that limited appeal right with your lawyer?

[Appellant]: Yes. Yes, sir.

THE COURT: And have you had a chance to discuss with him any possible defenses if you went to trial, factual defenses, legal defenses?

[Appellant]: Yes.

THE COURT: And you still want to plead guilty?

[Appellant]: Um-hum. Yes.

N.T., 11/17/15, at 24-25. In addition, the written plea colloquies, reviewed

and signed by Appellant, also explicitly stated: “If I plead guilty, I also give

up my speedy trial rights and my right under Rule 600 to be tried within 180

days from the filing of the complaint.” Written Guilty Plea Colloquy, 11/17/15,

at 2. See also id. (“If I already had a hearing on pre-trial motions, when I

plead guilty I give up my right to appeal the decisions on those motions.”).

We conclude Appellant is entitled to no relief. Although Appellant now

claims Attorney Harrison was unprepared for trial, the record reveals his jury

trial had already begun when Appellant asked for a brief recess to speak with

his sister. See N.T., 11/17/15, at 12. Moreover, Appellant attested in his

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written colloquies that he was satisfied with counsel’s representation, and

affirmed in his oral colloquy that he had the opportunity to discuss all possible

defenses with counsel before choosing to enter his plea. See Written Guilty

Plea Colloquy, 11/17/15, at 3; N.T., 11/17/15, at 25. Similarly, the record

disputes Appellant’s claim that he entered his plea involuntarily because he

relied on counsel’s purported assertion that he could raise the Rule 600 issue

on appeal. Indeed, during the plea hearing, Appellant affirmatively

acknowledged that once he entered a guilty plea, his appeal rights were

limited to challenges to the jurisdiction of the court, the legality of his sentence

and the voluntariness of his plea. See N.T., 11/17/15, at 25. Further, the

written colloquies he reviewed and signed made clear that if he entered a

guilty plea, he would waive his speedy trial and Rule 600 rights. See Written

Guilty Plea Colloquy, 11/17/15, at 2. Because “‘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,’” we conclude Appellant is entitled to no

relief. See Pier, 182 A.3d at 480 (citation omitted).

Thus, finding no abuse of discretion on the part of the PCRA court in its

denial of an evidentiary hearing, we affirm the order dismissing Appellant’s

petition.

Order affirmed.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9/14/20

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