Commonwealth v. Morrison

878 A.2d 102, 2005 Pa. Super. 222, 2005 Pa. Super. LEXIS 1502

• Court: Superior Court of Pennsylvania
• Decided: June 17, 2005
• Status: Published

Opinions

OPINION BY

BOWES, J.:

¶ 1 Jeremy Matthew Morrison appeals from the September 17, 2003 order denying him PCRA relief. We reject Appellant’s challenges to the validity of his guilty plea and affirm.

¶ 2 Appellant was arrested based on the following facts contained in the affidavit of probable cause in the arrest warrant. On September 26, 2001, Willard Scritchfield was working at Highway Oil, a gas station in Mountville, Pennsylvania, when he was robbed at gunpoint by a mustachioed white male in his mid-twenties who was approximately six feet tall. That male held a gun and was accompanied by a Hispanic male who was five feet eight inches tall and approximately the same age. Mr. Scritch-field gave his assailants an unidentified amount of money, and the two men fled in a Saab driven by an African-American male. Mr. Scritchfield obtained a partial license plate number for the car, and police were able to locate its owner. The owner told police that he had lent the car to Tilee James, an African-American male, on the night in question. Police obtained a photograph of James, and Mr. Scritchfield identified him as the driver of the getaway car. James was arrested, confessed, and named Appellant and Jamie Pizzaro Kilby as his two accomplices. Police obtained a photograph of Appellant, who was identified by Mr. Scritchfield “as the person who had used the handgun to rob him.” Affidavit of Probable Cause, 9/29/01, at 1.

¶ 3 Appellant was arrested and charged with conspiracy and armed robbery, graded as first degree felonies. The information charged Appellant with these crimes and alleged that Appellant:

Count 1-.

did agree with another person/persons that they or one or more of them would engage in conduct which constitutes such crime or an attempt or solicitation to commit such a crime, to wit: actor did agree with Jamie Pizzaro Kilby and Ti-lee Haseen Jámes to commit the crime of robbery and did in fact aid in the commission of this' robbery by holding a handgun to the neck of an employee from Highway Oil, 441 E. Main St., Mountville, Lancaster, County,

Count 2-

did, in the course, of 'committing a theft, threaten another with or intentionally put him in fear of immediate serious bodily injury, to wit; actor did enter Highway Oil, 441 E. Main St., Mount-ville, Lancaster County, and did hold a gun at the neck of clerk Scritchfield, demanding money, being in fear of immediate serious bodily injury,

Information, 12/10/01, at 1.

¶ 4 On March 6, 2002, Appellant pled guilty generally to the two charges; there was no plea agreement. The trial court imposed an aggregate sentence of five to ten years incarceration, the applicable mandatory minimum sentence. Appellant was advised of his post-sentencing rights but failed to appeal. On December 23, 2002, Appellant filed a timely petition for post-conviction relief. Counsel was appointed and filed an amended PCRA petition. This appeal followed denial of that petition without a hearing.

¶ 5 On appeal, Appellant raises this question for our review:

Whether the defendant was entitled to a hearing on his amended petition for post-conviction collateral relief when defendant alleged that counsel was ineffective by permitting defendant to plead guilty and not moving to withdraw the guilty plea when the colloquy was defective and defendant’s plea was otherwise unknowing and involuntary?

Appellant’s brief at 4.

¶ 6 “On appeal from the denial of PCRA relief, our standard of review is whether the findings of the PCRA court are supported by the record and free of legal error.” Commonwealth v. Abu-Jamal, 574 Pa. 724, 731, 833 A2d 719, 723 (2003). We review allegations of counsel’s ineffectiveness in connection with a guilty plea under the following standards:

The standard for post-sentence withdrawal of guilty pleas dovetails with the arguable merit/prejudice requirements for relief based on a claim of ineffective assistance of plea counsel, see generally Commonwealth v. Kimball, 555 Pa. 299, 312, 724 A.2d 326, 333 (1999), under which the defendant must show that counsel’s deficient stewardship resulted in a manifest injustice, for example, by facilitating entry of an unknowing, involuntary, or unintelligent plea. See, e.g., [Commonwealth v.] Allen, 557 Pa. [135,] 144, 732 A.2d [582,] 587 [ (1999) ] (“Allegations of ineffectiveness in connection with the entry of a guilty plea will serve as a basis for relief only if the ineffectiveness caused appellant to enter an involuntary or unknowing plea.”)....

Commonwealth v. Flanagan, 578 Pa. 587, 608-09, 854 A.2d 489, 502 (2004). This standard is equivalent to the “manifest injustice” standard applicable to all post-sentence motions to withdraw a guilty plea. Commonwealth v. Watson, 835 A.2d 786 (Pa.Super.2003). Furthermore,

[T]he constitutional ineffectiveness standard requires the defendant to rebut the presumption of professional competence by demonstrating that: (1) his underlying claim is of arguable merit; (2) the particular course of conduct pursued by counsel did not have some reasonable basis designed to effectuate his interests; and (3) but for counsel’s ineffectiveness, there is a reasonable probability that the outcome of the proceedings would have been different. Commonwealth v. (Michael) Pierce, 567 Pa. 186, 786 A.2d 203, 213 (2001); Commonwealth v. Kimball, 555 Pa. 299, 724 A.2d 326, 333 (1999). A failure to satisfy any prong of the test for ineffectiveness will require rejection of the claim.

Commonwealth v. Gribble, 580 Pa. 647, 657, 863 A.2d 455, 460 (2004).

¶ 7 In this case, Appellant alleges that counsel caused him to enter an unknowing and involuntary plea because the colloquy was defective in two respects. Appellant first challenges the sufficiency of the factual basis for the guilty plea. Second, he lays claim to a lack of understanding of the nature of the charges to which he pleaded guilty, suggesting that the record does not support a finding that he understood the subject of the proceedings.

¶ 8 The Commonwealth summarized the factual basis for the plea as follows: “On the 26th of September 2001, the defendant and two other actors went into Highway Oil, 441 East Main Street in Mountville, the defendant held a gun to the clerk and took approximately $99 in cash.” N.T. Guilty Plea/Sentencing, 3/6/02, at 2. Thus, the facts as recited by the Commonwealth establish that Appellant took money from the clerk at gunpoint and that he committed that armed robbery with the aid of two other actors. These facts sufficiently prove that a conspiracy and robbery occurred; we are at a loss as to any further elaboration that would have been necessary to establish that Appellant was guilty of the two charges in question. Indeed, Appellant does not even question that these facts, if admitted, were sufficient to establish that he committed the crimes of robbery and conspiracy. Instead, Appellant’s dissatisfaction with the factual basis for the guilty plea stems from the fact that “the Court never asked the Defendant what facts he was admitting” and argues that he never pleaded guilty to these facts. Appellant’s brief at 14.

¶ 9 We are puzzled by this argument. Appellant admitted that it was his “idea” to plead guilty. N.T. Guilty Plea and Sentencing, 3/6/02, at 4. He was told by the court that he was pleading guilty to robbery and conspiracy. The written colloquy indicates that those are the charges to which Appellant tendered a guilty plea. Appellant apparently is suggesting that he needed to separately admit, immediately following the delineation of the factual basis for the guilty plea, that he performed those acts. This position has no merit. Appellant pled guilty to these charges and by necessary implication, acknowledged that he performed the acts outlined in the factual basis for the plea. There simply is no legal requirement that a factual basis be separately admitted after its recitation for entry of a valid guilty plea. The guilty plea proceeding is the process by which the defendant admits that he committed the actions outlined in the factual basis for the plea. Appellant entered a guilty plea; ipso facto, he admitted to the details of the crimes outlined in the factual basis.

¶ 10 Appellant’s second contention is that the record contains no indication that he understood the nature of the charges to which he was pleading guilty because the trial court faded to set'forth at the plea colloquy the elements of robbery and conspiracy. Appellant’s brief at 13. After careful review, we cannot agree with Appellant’s asserted lack of awareness.

¶ 11 The record establishes that Appellant executed both a written guilty plea and a written guilty plea colloquy; at the oral colloquy, Appellant admitted reviewing those documents with his attorney and signing it:

THE COURT: Mr. Morrison, you signed the guilty plea and also the guilty plea colloquy?

THE DEFENDANT: Yes.

THE COURT: Your attorney went over the colloquy questions with you before you signed it?

THE DEFENDANT: Yes.

THE COURT: Explained your rights to you?

THE DEFENDANT: Yes.

N.T. Guilty Plea/Sentencing, 3/6/02, at 2 (emphasis added). That written guilty plea colloquy, which is extensive, is contained in the record.¹ Paragraph nineteen wherein Appellant admitted that he was “properly charged and before the Court on those offenses” to which he was pleading guilty is specifically relevant to the present inquiry. Written Guilty Plea Colloquy at ¶ 19. He acknowledged the charges to which he was pleading guilty as robbery, with a twenty-year maximum term of imprisonment, and criminal conspiracy with the same maximum term of confinement. Appellant was told that those sentences could be imposed consecutively and that he faced a forty-year term of incarceration. At the oral colloquy, before he entered his guilty plea, the court told Appellant that his “exposure” was “40 years” incarceration and that the minimum term of imprisonment that he would receive was five years, which was the sentence imposed by the court. N.T. Guilty Plea/Sentencing, 3/6/02, at 3, 4. He was further informed:

The Court: A jury would consist of 12 citizens in Lancaster County and you would participate in the selection of that jury. Do you understand that?

The Defendant: Yes.

The Court: Do you understand that in order to convict you the Commonwealth has the burden of proving each and every element of the crimes charged beyond a reasonable doubt—

The Defendant: Yes.

The Court:— to overcome your presumption of innocence. Has anyone made any threats or promises to enforce you to plead guilty today or induce you to plead guilty today?

The Defendant: (Witness shakes head.) The Court: You understand that a guilty plea has the same effect as if you were tried before a jury or judge sitting without a jury?

The Defendant: Yes.

Id. at 3-4.

¶ 12 The record also contains Appellant’s written guilty plea, which is particularly pertinent to our inquiry and reads:

I, defendant within named, in the presence of my counsel, do hereby enter my plea of guilty to the within information. Further, being advised of the offense charged in the information and of my rights, hereby (in open court) consent to proceed on the within information presented by the attorney for the Commonwealth.

Guilty Plea, 3/6/02, at 1 (emphasis added). The document was executed by Appellant and his counsel and not only referenced the criminal information, but contained a handwritten notation of the specific offenses — robbery and conspiracy graded as first degree felonies.

¶ 13 A valid plea colloquy must delve into six areas: 1) the nature of the charges, 2) the factual basis for the plea, 3) the right to a jury trial, 4) the presumption of innocence, 5) the sentencing ranges, and 6) the plea court’s power to deviate from any recommended sentence. Commonwealth v. Flanagan, supra; Comment to Pa.R.Crim.P. 590(A)(2).

¶ 14 In this case, the sixth subject is not implicated because there was no plea agreement. The second area, as discussed above, was covered, as were the third, fourth, and fifth areas, as established in the preceding quotation from the oral colloquy. While the plea court did not specifically delineate each element of the two crimes, the record simply belies Appellant’s contention that he was not aware of the nature of the charges.

¶ 15 Our Supreme Court has repeatedly stressed that where the totality of the circumstances establishes that a defendant was aware of the nature of the charges, the plea court’s failure to delineate the elements of the crimes at the oral colloquy, standing alone, will not invalidate an otherwise knowing and voluntary guilty plea. Commonwealth v. Schultz, 505 Pa. 188, 477 A.2d 1328 (1984); Commonwealth v. Martinez, 499 Pa. 417, 453 A.2d 940 (1982); Commonwealth v. Shaffer, 498 Pa. 342, 446 A.2d 591 (1982). “Whether notice [of the nature of the charges] has been adequately imparted may be determined from the totality of the circumstances attendant upon the plea[.]” Martinez, supra at 420, 453 A.2d at 942.

¶ 16 In Schultz, the Supreme Court refused to invalidate a guilty plea to robbery and reckless endangerment and concluded that the defendant was aware of the nature of the charges, despite the fact that the defendant was not told that theft was an element of robbery and even though the defendant had not successfully completed his armed robbery. The defendant’s awareness was premised upon the evidence against him outlined at the time of the oral colloquy.

¶ 17 In Martinez, the defendant pled guilty to third degree murder and robbery, and the record established that “no recitation of the elements of the crimes” or even the intent aspect of third degree murder was made during the oral colloquy. Id. at 419, 453 A.2d at 942. Since the circumstances surrounding the plea established that it was voluntary and knowing and that the defendant was aware of the nature of the charges based on the extensive evidence of actual guilt presented at the oral colloquy, our Supreme Court stated that it did “not deem this oversight to be fatal ...Id. It held, “In a case where ample, competent evidence in support of a guilty plea is made a matter of record, allegations of manifest injustice arising from the guilty plea must go beyond a mere claim of lack of technical recitation of the legal elements of the crimes.” Id. at 422, 453 A.2d at 943. Similarly, in Shaffer, the Court charged the defendant with knowledge of the nature of the offenses despite the lack of review of the elements of the offenses to which he pled guilty because the plea was tendered after the Commonwealth had entered its evidence at trial.

¶ 18 More recently, in Flanagan, supra, our Supreme Court reinforced the continued viability of the principles employed in Schultz and Martinez, stating:

[Wjhile the Court has admonished that a complete failure to inquire into any one of the six, mandatory subjects generally requires reversal, see, e.g., Commonwealth v. Chumley, 482 Pa. 626, 634, 394 A.2d 497, 501 (1978);.... see generally Commonwealth v. Ingram, 455 Pa. 198, 203-05, 316 A.2d 77, 80-81 (1974) (holding that the character of a guilty plea is tested according to the adequacy of the on-the-record colloquy), as both parties acknowledge, in determining the availability of a remedy in the event of a deficient colloquy, it has in more recent cases moved to a more general assessment of the knowing, voluntary, and intelligent character of the plea, considered on the totality of the circumstances

Id. at 606-07, 854 A.2d at 500-01. Further supporting these precepts is the following comment to Pa.R.Crim.P. 590:

It is advisable that the judge conduct the examination of the defendant. However, paragraph (A) does not prevent defense counsel or the attorney for the Commonwealth from conducting part or all of the examination of the defendant, as permitted by the judge. In addition, nothing in the rule would preclude the use of a written colloquy that is read, completed, signed by the defendant, and made part of the record of the plea proceedings. This written colloquy would have to be supplemented by some on-the-record oral examination. Its use would not, of course, change any other requirements of law, including these rules, regarding the prerequisites of a valid guilty plea or plea of nolo conten-dere.

To summarize, whether a defendant is aware of the nature of the offenses depends on the totality of the circumstances, and a plea will not be invalidated premised solely on the plea court’s failure to outline the elements of the crimes at the oral colloquy.

¶ 19 In this case, Appellant executed a document wherein he admitted that he was advised of the robbery and conspiracy offenses outlined in the information. The information clearly sets forth the elements of these crimes. In addition, the facts, as set forth at the oral colloquy, indicate that Appellant pointed a gun at the victim and took cash and was facilitated in his endeavor by two other actors. These facts undoubtedly support the conclusion that Appellant was guilty of robbery and conspiracy. Cf. Flanagan, supra. The written colloquy establishes that Appellant understood that by entering his plea, he admitted that he was properly charged with the offenses to which he was pleading guilty.

¶ 20 The extensive written colloquy also explained the rights Appellant was forfeiting, indicated that Appellant understood the proceedings and was satisfied with his counsel, and explored all of the sentencing and collateral consequences involved in the guilty plea. The plea court went over four of five mandated areas, and the sixth was not implicated. The single omission at the oral colloquy was the plea court’s failure to outline the elements of the crimes. However, this failure, standing alone, is not fatal to the plea. It is apparent that Appellant was aware of the nature of the offenses because he executed a document admitting that he was advised of the offenses outlined in the information, which detailed the elements of those offenses. Commonwealth v. Allen, 557 Pa. 135, 732 A.2d 582 (1999) (defendant could not claim ignorance that sentences could be imposed consecutively; despite oral colloquy’s omission regarding consecutive sentencing, record contained documents establishing defendant’s awareness).

¶ 21 Appellant herein faced forty years imprisonment and yet received only the mandatory minimum sentence applicable in this action, which he knew he had to receive because he was informed about its application. The victim of the crime was able to identify Appellant as the perpetrator. The totality of the circumstances establishes that Appellant entered a knowing and voluntary guilty plea and was aware of the nature of the crimes even though the elements of the crimes were not specifically delineated at the oral colloquy. Schultz, supra; Martinez, supra.

¶ 22 Finally, Appellant complains about the PCRA court’s failure to hold an evidentiary hearing. A PCRA hearing is not a matter of right, and the PCRA court may decline to hold a hearing if there is no genuine issue concerning any material fact and the defendant is not entitled to relief as a matter of law. Commonwealth v. Hardcastle, 549 Pa. 450, 701 A.2d 541 (1997); Pa.R.Crim.P. 907(2). In this case, the record belies Appellant’s claims that his guilty plea was invalid. The record supports the PCRA court’s factual finding that there was no manifest injustice that would mandate withdrawal of this guilty plea. Hence, an evidentiary hearing was not required.

¶ 23 Order affirmed.

¶ 24 Judge KLEIN files a Dissenting Opinion.

1 . When this matter was heard by the original panel, the written guilty plea colloquy was not contained in the record. Appellant’s motion to the trial court to supplement the record was granted, and the certified record now includes that colloquy.