HomeMy WebLinkAboutCP-21-CR-0000871-2010
COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
:
: CP-21-CR-0871-2010
:
: CHARGE: 1. FALSE IDENTIFICATION TO LAW
: ENFORCEMENT AUTHORITITES
: 4. HARASSMENT
V. :
: AFFIANT: OFF. THOMAS DOLAN
:
: CP-21-CR-1040-2010
:
: CHARGE: 3. THEFT BY DECEPTION
:
OSCAR TIMOTHY ROBINSON, II : AFFIANT: CPL. BRENT GRIEST
IN RE: OPINION PURSUANT TO Pa. R.A.P. 1925(a)
Ebert, J., September 26, 2012 –
PROCEDURAL HISTORY
At CP-21-CR-0001040-2010, the Defendant was charged with Forgery, 18 Pa.C.S.A.
§4101 (a)(3), a felony of the third degree; Unlawful Use of a Computer, 18 Pa.C.S.A. §7611
(a)(1), a felony of the third degree; and Theft by Deception, 18 Pa.C.S.A. §3922(a)(1), a
misdemeanor of the first degree. On September 16, 2010, the Defendant entered a guilty plea to
Count 3, Theft by Deception, in full satisfaction of all charges. On January 14, 2011, prior to
being sentenced, the Court allowed the Defendant to withdraw the guilty plea.
At CP-21-CR-0000871-2010, the Defendant was charged with a number of offenses;
however, at the conclusion of the preliminary hearing the following charges were bound over to
the Court of Common Pleas: Terroristic Threats, 18 Pa.C.S.A. §2706(a)(1), a misdemeanor of
the first degree; Simple Assault, 18 Pa.C.S.A. §2701(a)(1), a misdemeanor of the second degree;
False Identification to Law Enforcement, 18 Pa.C.S.A. §4914(a), a misdemeanor of the third
degree; and Harassment, 18 Pa.C.S.A. §2709(a)(1), a summary offense. On September 16, 2010,
the Defendant entered a guilty plea to Count 3, False Identification, and Count 4, Harassment, in
full satisfaction of all charges at this docket number. The Defendant completed a written guilty
1
plea colloquy at each docket. On January 14, 2011, prior to being sentenced, the Court allowed
the Defendant to withdraw his plea.
On April 25, 2011, the Defendant entered a guilty plea at CP-21-CR-1040-2010 and CP-
21-CR-0871-2010 to Theft by Deception and False Identification to Law Enforcement and
2
Harassment, respectively. The Defendant completed one guilty plea colloquy for both dockets.
The pleas were accepted in full satisfaction of all charges at both dockets. Pursuant to a
negotiated plea, the Defendant was sentenced immediately. On the charge of False Identification
to Law Enforcement, the Defendant was ordered to pay the costs of prosecution, a fine of $50.00,
and undergo incarceration in a State Correctional Institute for a period of not less than 1 month
nor more than 12 months. Credit was ordered for 31 days previously served. On the charge of
Harassment, the Defendant was ordered to pay the costs of prosecution. On the charge of Theft
by Deception, the Defendant was ordered to pay the costs of prosecution, a fine of $100.00, a
total restitution amount of $250.00, and undergo incarceration in a State Correction Institute for a
period of not less than 3 months nor more than 12 months. The Court noted that the sentence
was in the mitigated range pursuant to a negotiated plea between the parties. Additionally, the
3
Court allowed the Defendant to commit on August 2, 2011, at 1:30 p.m.
1
Guilty Plea Colloquy, CP-21-CR-0000871-2010, filed September 16, 2010 and Guilty Plea Colloquy, CP-21-CR-
0001040-2010, filed September 16, 2010
2
Guilty Plea Colloquy, CP-21-CR-0000871-2010 and CP-21-CR-0001040-2010, filed April 25, 2011
3
Commonwealth v. Robinson, CP-21-CR-1040-2010, CP-21-CR-0871-2010, In Re: Sentencing, J. Ebert, Jr., April 25,
2011
2
On July 28, 2011, on behalf of the Defendant, plea counsel requested and was granted
permission for the Defendant to report for commitment on his sentence on October 7, 2011, at
45
9:00 a.m. A subsequent motion to extend the date of incarceration was denied. The Defendant
6
failed to report for commitment of sentence, and a bench warrant was issued. The bench
7
warrant was executed, and the Defendant began his sentence on October 24, 2011.
On November 3, 2011, the sentencing order was amended to provide that the sentence at
8
docket CP-21-CR-1040-2010 run consecutive to the sentence at CP-21-CR-0871-2010. On
November 3, 2011, the Defendant, through his plea counsel, filed a motion to correct sentencing.
The motion requested that the Court order the Defendant to serve his sentence in the Cumberland
9
County Prison instead of a State Correctional Facility. The motion was denied on November 4,
2011.
On February 3, 2012, the Defendant, through his plea counsel, Sheri Coover, filed a
10
motion to withdraw guilty plea nunc pro tunc. On February 8, 2012, this Court denied the
11
motion.
On March 20, 2012, the Defendant filed a pro se P.C.R.A. petition. In the petition he
12
alleged ineffective assistance of counsel and that his guilty plea was unlawfully induced. Dirk
Berry, Esquire, was appointed as P.C.R.A. counsel. The Defendant filed a pro se supplement to
4
Order, J. Ebert, Jr., July 28, 2011
5
In Re: Defendant’s Motion to Extend Date of Incarceration, Order of Court, J. Ebert, Jr. , October 7, 2011
6
In Re: Bench Warrant, Order of Court, J. Ebert, Jr., October 7, 2011
7
In Re: Defendant Stands Committed, Order of Court, J. Ebert, Jr., October 25, 2011
8
Amended Order of Court, J. Ebert, Jr., November 3, 2011
9
Motion to Correct Sentencing, filed November 3, 2011
10
Defendant’s Motion to Withdraw Guilty Plea Nunc Pro Tunc, filed February 3, 2012
11
Order of Court, filed February 9, 2012
12
Motion for Post Conviction Collateral Relief, filed March 20, 2012
3
13
his original petition. On or about June 6, 2012, P.C.R.A. counsel filed a “no-merit” letter and
an amended letter on June 13, 2012, requesting leave to withdraw as court-appointed counsel.
14
This Court granted P.C.R.A. counsel’s motion. Subsequently, on July 12, 2012, this Court held
a P.C.R.A. hearing regarding the Defendant’s allegations that his plea counsel was ineffective.
FACTUAL HISTORY
In addition to completing a written guilty plea colloquy prior to accepting the April 25,
2012, guilty plea, this Court conducted a colloquy on the record.
THE COURT: I have this form before me. I call it a rights form. Did you sign
this from [sic]?
THE WITNESS [sic]: Yes.
THE COURT: Did you go over these rights with your counsel?
THE WITNESS [sic]: Yes.
THE COURT: Do you have any question about your rights at all?
THE DEFENDANT: No, sir.
THE COURT: Did anybody in any way force you or threaten you to enter this
plea?
THE DEFENDANT: No.
THE COURT: You have an agreement with the Commonwealth. Obviously,
you’re pleading guilty to 3 charges in full satisfaction of all other charges pending
against you and that they are in fact recommending a time served sentence on the
charge docketed to 871 of 2010 and a mitigated range sentence beginning at 3
months on the charge docketed to 1040 of 2010. Have there been any other
agreements or promises made with you to get you to plead guilty that I have not
been made aware of?
THE DEFENDANT: No, sir.
13
Supplement to Original Petition for Post Conviction Relief, filed June 4, 2012
14
Commonwealth v. Robinson, II, CP-21-CR-1040-2010, CP-21-CR-0871-2010, Order of Court J., Ebert, Jr., June 13,
2012.
4
THE COURT: Mr. Robinson, do you think that the pleas to these charges at this
time are in your best interest?
15
THE DEFENDANT: Yes.
THE COURT: … Sir, is there anything else you would like to say before
sentencing?
THE DEFENDANT: No, sir.
…
MR. SODUS: I just reiterate our recommendation for time served at 0871 of
2010 and 3-month sentence at 1040 of 2010.
THE COURT: What’s the status of your State parole?
THE DEFENDANT: I’m actually off parole right now, but taking these guilty
16
pleas will put me back on parole and give me a violation.
Prior to sentencing, the Court reviewed the Pre-Sentence Investigative report
(PSI). At CP-21-CR-1040-2010, Count 3, Theft by Deception, probation recommended
that the sentence be served in a state correctional institution as the Defendant was on state
parole at the time this offense was committed. Probation further justified this
recommendation by averring that county supervision was completely inappropriate for
the Defendant. Moreover, this recommendation was in larger and bolder font than the
rest of the PSI and was part of the Theft by Deception sentencing structure. It was not
hidden among the multiple pages of the PSI.
17
In the fact portion of Defendant’s P.C.R.A. petition he avers:
The Defendant contends that he entered into a plea-agreement with the
commonwealth [sic] with the understanding that the terms of that agreement were
15
Transcript of Proceedings, In Re: Guilty Plea & Sentencing, J. Ebert, Jr., April 25, 2011, (hereinafter “G.P. 6”) G.P.
6 – 7.
16
G.P. 9
17
Motion for Post Conviction Collateral Relief, filed March 20, 2012
5
that the Defendant would ple-guilty [sic] to M1 Theft by Deception, M3 False
Identification to Authorites [sic], and summary Harassment with the
understanding that all parties agreed upon a total sentence of 3 months on the
Theft by Deception followed by time served on the False identification to
Authorites [sic] and with regards to the summary Harassment the Defendant
would pay cost of prosecution, with all time to be served at the Cumberland
County prison.
The Defendant contends that the ple-agreement [sic] was accepted and
recorded by the court and clearly stated several times by all parties on the record
only to be sentenced outside the agreed upon terms of the ple-agreement [sic].
The Defendant contends that he was mislead [sic] by the Commonwealth, his
attorney, and the court and now seeks relief.
18
In Defendant’s supplemental PCRA petition, he further avers:
8. The Court erred in ordering Petitioner’s incarceration served in a State
Correctional Institute, and not the “County Facility,” as was discussed “off the
record.”
9. The Petitioner additionally submits, MS. COOVER rendered ineffective
assistance in failing to identify and enter a timely objection to the Court’s
sentencing error(s), rather, MS. COOVER pursued strategically flawed means of
correcting the Court’s error, in that she submitted a “motion to withdraw guilty
plea nunc pro tunc,” dated February 8, 2012, …
10. Moreover, the Court erred in correcting/amending the Petitioner’s sentence
November 3, 2011, where, as previously stated, the Court no longer retained
jurisdiction over the matter. Pa.R.Crim.P. Rule: 704(A).
11. The Court erred by not indicating on the record, and before the Petitioner
whether the sentence(s) were to run “concurrently or consecutively,” pursuant to
Pa.R.Crim.P. Rule: 705 …
18
Supplement to Original Petition for Post Conviction Relief, filed June 4, 2012
6
12. Additionally the Court’s April 25, 2011, “Plea Colloquy” was Constitutionally
defective, where, in addition to failing to signify whether the sentence(s) were to
run concurrent or consecutive, the Court, pursuant to Pa.R.Crim.P. Rule 590(A),
is required to establish on the record whether there was a “factual basis for the
plea; whether the Petitioner understood he was presumed innocent until proven
guilty, and that the Court is not bound by the terms of any plea agreement,”
unless, as here, the Court accepts such agreement. …
In Defendant’s concise statement of matters complained of on appeal, he raises the
following issues:
1.The trial judge erred by not sentencing the petitioner in accordance with the
“time served” (31 days) sentences and (90 days) sentence that was entered
into a plea agreement with the commonwealth [sic] and after accepting the
pleas in open court, therefore breaking the plea agreement.
42 Pa.C.S.A. §5505
2.The trial judge erred in accordance to rule: , by amending
his order/sentence after 30 days (7 months) and ordering that the sentence(s)
are to be served consecutively in the amendment, when it was not stated at
sentencing in open court or on the record.
3.The trial judge erred by dismissing the petitioner’s P.C.R.A. motion stating
that it had “no merit”, instead of correcting the sentence(s) and errors clearly
made during the sentencing proceedings.
4.The trial court erred in appointing counsel to the petitioner in which the
counsel appointed for the P.C.R.A. matters worked with the original court
appointed counsel in which the ineffective counsel claim was filed against,
constituting a conflict of interest and an un-fair [sic] chance of representation
and or relief.
5.The trial judge erred in ordering the petitioner to serve the sentence(s) in a
state correctional institution instead of a county prison as was discussed and
agreed upon in the plea agreement off the record by both the defendaent [sic]
and the commonwealth[sic], and the sentence is a county sentence which was
7
agreed upon in the plea agreement with the commonwealth [sic] before the
signing of the agreement.
6.The judge erred by not stating or indicating on the record and before the
petitioner whether the sentence(s) were to run “concurrently or
Pa.R.Crim.P. rule: 705
consecutively”, pursuant to , which states “if it is not
stated on the record in open court whether the sentence(s) are to be concurrent
or consecutive, the sentence is deemed to be concurrent”.
Some of the Defendant’s errors complained of on appeal are consolidated in the
discussion below.
DISCUSSION
When examining a post-conviction court's denial of relief, the appellate court's scope of
review is limited to a determination of whether the P.C.R.A. court's findings are supported by the
record and are otherwise free of legal error. Commonwealth v. Patterson, 690 A.2d 250, 252 (Pa.
Super. 1997) See, e.g., Commonwealth v. Kimball, 683 A.2d 666, 670 (Pa. Super. 1996);
Commonwealth v. Legg, 669 A.2d 389, 391 (Pa. Super. 1995). The findings of the post-
conviction court will not be disturbed unless they have no support in the record. Id. 690 A.2d at
252.
First, in order to seek relief under the Post Conviction Relief Act, the Defendant must
plead and prove by a preponderance of the evidence:
(1) That the petitioner has been convicted of a crime under the laws of this
Commonwealth and is at the time relief is granted:
(i) currently serving a sentence of imprisonment, probation, or parole for
the crime;
(2) That the conviction or sentence resulted from one or more of the following:
8
(ii) Ineffective assistance of counsel which, in the circumstances of the
particular case, so undermined the truth-determining process that no reliable
adjudication of guilt or innocence could have taken place.
(iii) A plea of guilty unlawfully induced where the circumstances make it
likely that the inducement caused the petitioner to plead guilty and the petitioner
is innocent.
(3) That the allegation of error has not been previously litigated or waived.
42 Pa.C.S.A. § 9543 .
An allegation that plea counsel’s ineffectiveness induced him to plea is an allegation that
has not been waived under 42 Pa.C.S.A. §9543(1)(3). Commonwealth v. Johnson, 875 A.2d 328
(Pa. Super. 2005). In the present case, the Defendant is currently serving a sentence of
imprisonment or is on parole for the convictions at CP-21-CR-0871-2010 and CP-21-CR-1040-
2010. In essence, the Defendant argues that plea counsel promised him that he would receive a
time-served sentence and a 90-day sentence, and the service of this sentence would be in the
county. This promise induced him to plead guilty against his will, thus rendering the plea
involuntary. Since his argument that his counsel’s ineffectiveness induced him to plea, this issue
is properly before this Court under the Post Conviction Relief Act.
I.The trial court followed the law in appointing P.C.R.A. counsel, conducting a hearing
on the merits, and subsequently finding the P.C.R.A. petition meritless.
When a Defendant files a timely first P.C.R.A. petition, the Court shall appoint P.C.R.A.
counsel and order counsel to file an amended petition if necessary. Pa.R.Crim.P. 904(c). If
P.C.R.A. counsel finds no merit in Defendant’s petition for relief, counsel is instructed to file a
Turner/Finley letter. The trial court is instructed to conduct its own review to determine whether
P.C.R.A. counsel has correctly assessed the petition. Commonwealth v. Finley, 550 A.2d 213
(Pa. Super. 1988). If, after conducting an independent review, the trial court believes the petition
9
lacks merit, the Court may dismiss the petition without a hearing and shall notify the Defendant
and advise the Defendant of his appellate rights. Pa.R.Crim.P. 907(4).
In the present case, this Court followed the proper procedure. The Court timely
appointed P.C.R.A. counsel and gave counsel thirty (30) days to file an amended petition. In lieu
of a petition, counsel filed a Turner/Finley letter alleging that the Defendant’s petition was
meritless. This Court conducted a hearing on the Defendant’s original and supplemental
petitions. Following the hearing, this Court denied the Defendant’s petition and advised him that
19
he had thirty (30) days to file an appeal to the Superior Court.
Wherefore, this Court followed proper procedure in denying the Defendant’s petition for
relief. As such, Defendant’s allegation of error that the Court should have corrected the sentence
instead of dismissing his petition is without merit.
Additionally, the Defendant argues that there is a conflict of interest between court
appointed P.C.R.A. counsel and plea counsel. At the P.C.R.A. hearing, the Defendant testified
that P.C.R.A. counsel and plea counsel both work at 44 South Hanover Street, “which I believe
would be a conflict of interest if they work out of the same office, which I don’t understand why
20
he (P.C.R.A. counsel) would be appointed to me in the first place.” The mere fact that plea
counsel and P.C.R.A. counsel have private offices located in the same commercial office
building such that their street addresses are the same does not establish a conflict. The record is
completely void of any facts that suggest a conflict of interest. Therefore, this Court committed
no error in appointing P.C.R.A. counsel.
19
Commonwealth v. Robinson II, CP-21-CR-0871-2010 and CP-21-CR-1040-2010, In Re: PCRA Petition, J., Ebert, Jr.,
July 12, 2012 (hereinafter PCRA hearing ___) PCRA hearing 27
20
PCRA hearing 24
10
II.The trial court properly denied the Defendant P.C.R.A. relief and found that plea
counsel was not ineffective where the Defendant was sentenced pursuant to the
Commonwealth’s recommendation.
In order to succeed on an ineffective assistance of counsel claim, the petitioner must
show, by a preponderance of the evidence: (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. Anderson, 995 A.2d 1184, 1191 (Pa. Super.
2010); Commonwealth v. Johnson, 868 A.2d 1278 (Pa. Super, 2005). All three prongs must be
proven. Id. In the context of a guilty plea, an appellant must show that plea counsel's
ineffectiveness induced him to plea. If the appellant makes such a showing, we deem his plea
involuntarily made and will permit its withdrawal. Commonwealth v. Hickman, 799 A.2d 136
(Pa. Super. 2002).
a.The claim is of arguable merit
In essence, the Defendant is arguing that the P.C.R.A. court erred in determining that
Defendant’s guilty plea was not unlawfully induced upon the understanding of the plea
agreement as explained by plea counsel, agreed up by the Commonwealth, but not implemented
by the Court.
In Commonwealth v. Anderson, 995 A.2d 1184 (Pa. Super. 2010), the appellant filed a
petition for post-conviction relief, arguing that he would not have pleaded guilty but for the
agreement that the Commonwealth would remain silent at sentencing. Id. at 1189. At the
P.C.R.A. hearing, appellant testified that he told plea counsel that the Commonwealth’s silence
11
at sentencing was an integral part of the plea because he believed he could more effectively
argue for a lesser sentence without the Commonwealth’s comments. Id. He further testified that
plea counsel told him the Commonwealth would remain silent. Plea counsel testified that while
he cannot remember the specific details, his notes indicate that there was an understanding that
the Commonwealth would remain silent and that this silence was a vital part of the plea. Id.
The Superior Court reviewed the plea colloquy where the terms of the plea agreement
were stated on the record. Summarily, the agreement was that the Defendant would enter a plea
to five charges and the Commonwealth would seek a nol pros on the remaining charges. Further,
the plea was open and the issue of consecutive and concurrent sentences was left to the discretion
of the court. Furthermore, the Commonwealth stated that it would make no recommendation at
the time of sentencing. Id. at 1192.
The following facts supported the P.C.R.A. court’s denial of relief. First, at the pretrial
conference, the agreement was that the Commonwealth would remain silent on the limited issue
of whether the sentences should run consecutively or concurrently. Id. at 1193. Second, the
terms of the plea were on the record and at no time did plea counsel or appellant correct the
Commonwealth that it agreed to remain silent. Third, they did not challenge the rendition of the
terms of the plea. To the contrary, the appellant indicated that he understood the terms of the
agreement. Id. He was given the opportunity to state his understanding of the agreement on the
record, but he chose not to. Id. at 1194. Fourth, appellant had ample time between the plea
hearing until the time of sentencing to change the terms of his plea or withdraw the plea.
Immediately following sentencing he did not seek to withdraw his plea. Id. at 1193. Fifth, the
Court noted that the appellant was a veteran of the criminal justice system, in which all charges
resulted in guilty pleas; therefore, appellant knew what was involved in the plea bargaining
12
process and what was expected of him in terms of confirming the terms of the plea agreements.
Id. Finally, the record is void of any agreement to stand silent.
The Superior Court ultimately affirmed the P.C.R.A. court’s denial of relief finding
“[w]ith respect to Appellant’s related ineffective assistance of counsel claim, Appellant’s failure
to show the Commonwealth’s silence at sentencing was part of the terms of the plea agreement
causes this ineffectiveness claim to fail for lack of arguable merit.” Id. at 1195.
In the present case, the Defendant failed to show that the location where the Defendant
was to serve his sentence was part of the terms of the plea agreement. First, the Defendant
pleaded guilty pursuant to the same plea offer previously on September 10, 2010. He withdrew
that plea prior to being sentenced. The reason was because pleading guilty was a violation of his
21
parole, and he was committed to a state correctional facility based on this state parole violation.
His plea was not withdrawn based on the Commonwealth and the Court failing to abide by an
agreement. Second, he had completed 2 written guilty plea colloquies on September 10, 2010,
th
and another written colloquy on April 25, 2011. Furthermore, on April 25, the Court conducted
an on-the-record colloquy where the Defendant confirmed the plea agreement. Third, neither the
Defendant nor his counsel challenged the Commonwealth’s rendition of the plea agreement.
Fourth, neither the Defendant nor his counsel informed the Court of their understanding that the
plea agreement entailed commitment in a county facility when the Court gave them an
opportunity to do so. Fifth, the Defendant told the Court that by taking these guilty pleas, he will
be back on parole and receiving a violation. This would place him in the very same situation he
found himself back on September 10, 2010. Sixth, immediately following the Court’s order that
the sentence was to be served in a state correctional facility, the Defendant did not question the
21
PCRA hearing 20
13
order. To the contrary, when the Court asked if the Defendant if he understood what he has to
do, the Defendant responded in the affirmative. Seventh, the record is void of any evidence that
there was an agreement that the Defendant serve his sentence in a county facility as opposed to a
state facility.
Finally, the Defendant produced no evidence that he told his attorney to file a motion to
withdraw his plea or post-sentence motion based on the fact that he was ordered to serve his
sentence in a state correctional facility. The most important concern of the Defendant was that
he delay the service of his sentence. He was successful is delaying the service of his sentence
from April 25, 2011, until October 7, 2011. No motions were ever filed regarding the location
until he was picked up on a bench warrant for failure to report for commitment.
The Defendant’s failure to show that the service of the sentence was part of the terms of
the plea agreement causes this ineffectiveness claim to fail for lack of arguable merit.
b.Counsel had no reasonable basis for her actions or inactions
In Anderson, appellant argued that plea counsel had no reasonable basis for failing to
clarify the terms of the plea agreement at sentencing; failed to seek withdrawal of plea; failed to
file a post-sentence motion raising the failed agreement. Id. at 1190. In the present case, the
Defendant makes no clear argument.
In the present case, with regard to whether counsel had a reasonable basis for failing to
file a motion to withdraw the plea or a post-sentence motion, plea counsel did file an untimely
22
motion to withdraw plea. However, the record is void of any fact that the Defendant requested
plea counsel to file a timely motion to withdraw his guilty plea. The record is void of any fact
22
This Court noted the motion was over 283 days late
14
that the Defendant requested plea counsel to file a timely post-sentence motion. Therefore, the
Defendant has failed to sustain his burden that plea counsel was ineffective in that she had no
reasonable basis to not file a motion to withdraw the guilty plea or a post-sentence motion.
With regard to whether plea counsel had a reasonable basis for failing to clarify the terms
of the plea agreement at sentencing, the only clarification that could have been made pertained to
the agreement as to the minimum sentence the Defendant would receive. In his concise matters
complained of on appeal, Defendant argues that the plea agreement was for time-served and 90
days. On the record, the Commonwealth stated the “recommended” minimum sentences and
nothing was said as to the maximum sentences. However, in the Commonwealth’s rendition of
23
the facts, the Commonwealth told the Defendant the maximum sentences at each count, and the
24
Court asked the Defendant if he heard what the maximum sentences could be. More
significantly, as relied upon by the Court in Anderson, the Defendant in the present case was a
veteran of the criminal justice system. With a prior record score of 5, the Defendant was well
aware that a sentence requires both a minimum and maximum. The Defendant received the
benefit of his bargain as to the minimum sentences.
Therefore, the Defendant has failed to sustain his burden in proving that plea counsel was
ineffective for having no reasonable basis to not clarify the plea agreement as it pertained to the
sentences the Defendant was to receive.
23
G.P. 2, 3
24
G.P. 3
15
c.But for the errors and omissions of counsel, there is a reasonable probability that the
outcome of the proceedings would have been different
Since the Defendant pleaded guilty and was immediately sentenced, the only avenue
open to the Defendant or his counsel was to file a post-sentence motion requesting to withdraw
his guilty plea based on the premise that he did not receive the benefit of the bargain. See
Pa.R.Crim.P. 720. Therefore, the analysis is if plea counsel would have filed a post-sentence
motion requesting the withdrawal of the Defendant’s plea, would this trial court have granted the
Defendant’s request.
(1) Generally.
(a) The Defendant in a court case shall have the right to make a post-sentence
motion. All requests for relief from the trial court shall be stated with specificity
and particularity, and shall be consolidated in the post-sentence motion, which
may include:
(i) a motion challenging the validity of a plea of guilty or nolo contendere, or the
denial of a motion to withdraw a plea of guilty or nolo contendere;
(v) a motion to modify sentence.
Pa. R. Crim. P 720.
“[P]ost-sentence motions for withdrawal are subject to higher scrutiny since courts strive
to discourage entry of guilty pleas as sentence-testing devices.” Commonwealth v. Broaden, 980
A.2d 124, 129 (Pa. Super. 2009) quoting Commonwealth v. Flick, 802 A.2d 620, 623 (Pa. Super.
2002). A Defendant must demonstrate that manifest injustice would result if the court were to
deny his post-sentence motion to withdraw a guilty plea. Id. citing Commonwealth v. Gunter,
771 A.2d 767 (Pa. 2001). “Manifest injustice may be established if the plea was not tendered
knowingly, intelligently, and voluntarily.” Commonwealth v. Hodges, 789 A.2d 764, 765 (Pa.
Super. 2002), citing Commonwealth v. Persinger, 615 A.2d 1305 (Pa. 1992). In determining
16
whether a plea is valid, the court must examine the totality of circumstances surrounding the
plea. Commonwealth v. Flanagan, 854 A.2d 489, 500 (Pa. 2004).
To determine whether the guilty plea was voluntary a guilty plea colloquy must include
inquiry as to whether (1) the Defendant understood the nature of the charge to which he is
pleading guilty; (2) there is a factual basis for the plea; (3) the Defendant understands that he has
the right to a jury trial; (4) the Defendant understands that he is presumed innocent until he is
found guilty; (5) the Defendant is aware as to the permissible range of sentences; and (6) the
Defendant is aware that the judge is not bound by the terms of any plea agreement unless he
accepts such agreement. Commonwealth v. Muhammad, 794 A.2d 378, 385 (Pa. Super. 2002);
Commonwealth v. Munson, 615 A.2d 343, 349 (Pa. Super. 1992). Inquiry into these six areas is
mandatory in every guilty plea colloquy. Munson, supra.
Significant to this case is the proposition that “…a disappointed expectation regarding a
sentence does not constitute grounds for withdrawing a guilty plea.” Commonwealth v. Munson,
supra. quoting Commonwealth v. Owens, 467 A.2d 1159, 1163 (Pa. Super. 1983). See also
Commonwealth v. Muntz, 630 A.2d 51, 54 (Pa. Super. 1993) (Appellant delayed petitioning to
withdraw his guilty plea despite his extended opportunity to do so during the three months
between his plea and the initial sentencing. His delay in presenting his request until after
sentence was imposed suggests that appellant was testing the sentencing process).
In Commonwealth v. Munson, supra. appellant argued that his guilty plea counsel was
ineffective for failing to file a motion to withdraw the plea on grounds that appellant did not
voluntarily enter the plea. His guilty plea was not voluntarily entered, appellant contends,
because he was not specifically informed of the possibility that he might receive a minimum
17
sentence which exceeded that recommended by the sentencing guidelines. Commonwealth v.
Munson, 615 A.2d 343 at 348 (Pa. Super. 1992). A full and complete guilty plea colloquy was
conducted which established conclusively that appellant's plea of guilty was entered knowingly,
intelligently and voluntarily. As part of the colloquy, appellant was specifically informed, and
indicated that he understood, that he faced a possible sentence of up to twenty years
imprisonment. Id. at 349. Therefore, appellant cannot now credibly contend that he was
unaware of the permissible range of the sentence which he faced. Id. at 349-50.
Moreover, his disappointment with the length of the sentence which he actually received
is not an adequate basis on which to file a motion to withdraw a guilty plea. Accordingly, guilty
plea counsel cannot be deemed ineffective for failing to file an obviously meritless motion. Id.
In Commonwealth v. Muhammad, 794 A.2d 378 (Pa.Super. 2002), the appellant entered
a guilty plea to brutally beating a woman. Sentencing was postponed until the court received a
PSI. Id. at 380. On the date of sentencing, appellant informed the court he wanted to withdraw
his guilty plea. Id. at 381. The court was later informed that appellant wanted to proceed with
sentencing. A sentencing hearing was scheduled a week later. Id. At that time, appellant
informed the court he wanted to withdraw his guilty plea. The appellant professed his innocence
and the court allowed him to withdraw his plea and proceed to trial. Id. at 380. The proceeding
continued with the Commonwealth calling the victim to testify as to events that happened on the
same date the sentencing was originally scheduled. Id. at 380-81. The appellant then apologized
to the victim. When the court tried to clarify if appellant wanted to again withdraw his plea, the
appellant answered “no”. Id. at 381. Subsequently, he entered a nolo plea on a drug offense and
the court issued its sentence. For beating the victim, appellant received a 10-20 year sentence
and a 2 1/2 – 5 year sentence on the drug charge. Id.
18
Following sentencing, the appellant told the judge that he basically should have taken a
jury trial and motioned to withdraw his plea. Id. The trial court denied appellant’s motion. Id.
at 382. The Superior Court affirmed the decision, finding that appellant's attempt to withdraw
his guilty plea at this juncture is nothing more than a manipulation of court proceedings to
further delay his sentencing. Id. at 385.
In the present case, the facts establish that the Defendant, like the Defendants in
Muhammad and Munson, was testing the system and ultimately was disappointed with his
sentence. At the P.C.R.A. hearing it was determined that following the September 2010 guilty
plea, but prior to the sentence, the Defendant was incarcerated in state prison because he was on
25
state parole. The facts that supported the guilty plea violated a condition of his parole. At the
time of the September 2010 guilty plea, there were no discussions as to where the Defendant
26
would serve his sentence. However, both parties agreed on the minimum sentences at each
27
count. In April 2011, the same plea offer was offered to the Defendant. Again, the parties
agreed upon the minimum sentence at each count, but there were no agreements as to where the
28
Defendant would serve his sentence. In fact, plea counsel testified that there were never any
29
discussions as to where the Defendant would serve his sentence.
Prior to the Defendant entering a guilty plea and being sentenced, trial counsel reviewed
30
the PSI with the Defendant. The PSI acknowledged the negotiated plea but recommended that
the Defendant serve his sentence in a state facility. Plea counsel testified that at the time of the
25
PCRA hearing 7
26
PCRA hearing 5-6
27
PCRA hearing 6
28
PCRA hearing 8
29
PCRA hearing 8
30
PCRA hearing 9
19
31
plea and sentence, the Defendant was concerned about the commitment date. Furthermore, in
reviewing the written guilty plea colloquy with the Defendant, plea counsel made him aware that
32
ultimately the sentence was up to the judge.
Furthermore, the record is silent as to whether the Defendant asked trial counsel to file a
motion to withdraw his plea within 30 days of the sentence. The Defendant testified at the
P.C.R.A. hearing but failed to testify that he instructed counsel to file a timely motion. Based on
the motions counsel did file, one can reasonably conclude that the Defendant was most interested
in delaying his commitment date. This Court further noted that the Defendant failed to appear
for commitment on October 7th. If the Defendant believed he received a county sentence, he
would have committed to the Cumberland County Prison. When confronted on why he failed to
33
commit to the county prison, he replied “[c]ause I didn’t show up. I just didn’t show up.”
Nothing in the record indicates there was an agreement that the Defendant would serve
his sentence in a county facility. The record is void of an agreement as to where the Defendant
would serve his sentence. The PSI indicated in large, bold letters that the probation department
recommended service in a state facility. This Court does not believe the Defendant when he
testified that both the assistant district attorney and trial counsel told him the sentence would be
34
served in the county prison. Prior to sentencing the Defendant, the Court asked about the status
of the Defendant’s parole, to which the Defendant responded that by pleading guilty he would
35
have a parole violation.
31
PCRA hearing 10
32
PCRA hearing 11, 16
33
PCRA hearing 22
34
PCRA hearing 21
35
G.P. 9
20
Prior to accepting the guilty plea, the judge confirmed that the Defendant reviewed the
36
guilty plea colloquy with counsel and that the Defendant understood his rights. The court
37
further colloquied the Defendant:
THE COURT: You have an agreement with the Commonwealth. Obviously,
you’re pleading guilty to 2 charges in full satisfaction of all other charges pending against you
and that they are in fact recommending a time served sentence on the charge docketed to 871 of
2010 and a mitigated range sentence beginning at 3 months on the charge docketed to 1040 of
2010. Have there been any other agreements or promises made with you to get you to plead
guilty that I have not been made aware of?
THE DEFENDANT: No, sir.
The mere fact that the Defendant had already entered a guilty plea then withdrew his plea
presumes he knows the importance of such negotiated plea. Following the imposition of the
sentence and ordering the Defendant to report for commitment, the Court asked the Defendant if
38
he understood what he must do and the Defendant answered “yes, sir”. There was no objection
to him serving the sentence in the state. Arguably, with the Defendant’s testimony that the most
important consideration for him was to serve the sentence in the county, and with the PSI boldly
indicating service in the state, the Defendant was on high alert as to where his sentence would be
served.
Since the record is void of evidence that the Defendant’s plea was involuntary, a post-
sentence motion seeking withdrawal of the guilty plea would have been denied. Therefore, the
36
G.P. 6-7
37
G.P. 7
38
G.P. 11
21
Defendant has not satisfied the third prong of the ineffectiveness analysis that but for plea
counsel’s error or omission, the outcome would have been different. As such, the Defendant’s
appeal is without merit.
III.The trial court properly amended the original sentencing order to make the sentence
consistent with the latter provision that the sentences are to be served in a state
correctional facility.
Pursuant to 42 Pa.C.S.A. §5505, a court may modify or rescind any order within 30 days
after its entry. However, where there is a clear clerical error or an obvious and patent mistake,
the trial court may amend the order after the 30 days has expired. Commonwealth v. Borrin 12
A.3d 466 (Pa. Super. 2011) appeal granted, 22 A.3d 1020 (Pa. 2011) (whether the Superior Court
erred in reversing the trial court's order correcting a clerical error and clarifying the court's
judgment of sentence).
In Borrin, the Superior Court held that the trial court lacked jurisdiction to modify a
sentencing order where the clerical error was not obvious or where it was ambiguous. In the
sentencing order, the court ordered that the relevant counts subsequent to Count 1 were to run
“consecutive” without any further elaboration. Id. at 475. The court intended to impose the
counts following Count 1 consecutive to each other and all prior counts. Id. However, the trial
judge's intentions in this regard were not clearly and unequivocally expressed at sentencing, and
on the face of the sentencing transcript, the trial judge's use of the word “consecutive” was
ambiguous. Since there is no clear clerical error, the court was without jurisdiction to amend the
39
sentencing order beyond the 30 days.
39
Pa Supreme Court granted allocator on this issue.
22
In Commonwealth v. Holmes, 933 A.2d 57 (Pa. 2007), the Supreme Court allowed the
trial court to amend its sentencing order beyond the 30 days where there was a patent mistake,
discoverable only by review of the docket. Id. at 66. However, the court cautioned that the
modification cannot be made in considering the imposition of a harsher sentence. Id.
Furthermore, in Commonwealth v. Cole, 263 A.2d 339 (Pa. 1970), the Supreme Court allowed
the trial court to modify or amend a sentencing order three and one half months late where the
order was patently erroneous. The order granted a new trial and a motion in arrest of judgment.
The error was discoverable on the face of the order without further review.
In the present case, the modification involved a clear error in the imposition of the
sentence where the order was incompatible with the law. The relevant statute is 42 Pa.C.S.A.
§9762(a)(3).
(a) Sentences or terms of incarceration imposed before a certain date.--For
the three-year period beginning on the effective date of this subsection, all
persons sentenced to total or partial confinement for the following terms shall be
committed as follows:
(1) Maximum terms of five or more years shall be committed to the
Department of Corrections for confinement.
(2) Maximum terms of two years or more but less than five years may be
committed to the Department of Corrections for confinement or may be
committed to a county prison within the jurisdiction of the court.
(3) Maximum terms of less than two years shall be committed to a county
prison within the jurisdiction of the court.
42 Pa.C.S.A. §9762.
23
In this Court’s sentencing order, the Court was clear in that the Defendant was to serve
his sentence in a state correctional facility. In the order the Court stated that the Defendant
“undergo incarceration in a State Correctional Institute”. Furthermore, the PSI indicated that the
Defendant be ordered to serve his sentence in the state and that county supervision was not
appropriate. If the Defendant were to receive a concurrent sentence of time served to 12 months
and 3 months to 12 months, his maximum sentence would be 12 months. Therefore, pursuant to
9762(a)(3), the Defendant shall be committed to a county prison.
The Court was not considering the imposition of a harsher sentence. The sentence was
within the parties’ agreement of the minimum sentences to be imposed. There was no agreement
as to the maximum sentence or the service of the sentence. In correcting the absence of
language: concurrent or consecutive, the Court was fixing a patent error. If the sentences were to
be served concurrently, the order was incompatible with Section 9762(a)(3). If the sentences
were to be served consecutively, the order was consistent with the Court’s clear intention of
sending the Defendant to the state to serve his sentence; therefore, consistent with Section 9762.
A maximum sentence of 24 months allows the Defendant to serve his sentence in the state as
opposed to a 12 month sentence. The modification rectifies the patent mistake. Therefore, the
Court did not err in modifying the sentencing order.
On a final practical note, it was the Defendant who told the Court that as a result of his
pleas and sentence, he would receive a parole violation of his previous state sentence. The pre-
sentence investigation indicated that the Defendant had been previously convicted of Burglary
and Aggravated Assault and sentenced to an aggregate sentence of 2 – 4 years. Since the current
crimes occurred during the period of parole, it was obvious to the Court that the Defendant
would receive a parole violation and would be serving additional state time. The Defendant
24
admitted as much during his plea colloquy. The Court asked the Defendant “what’s the status of
your state parole?” The Defendant answered “I’m actually off parole right now but taking these
guilty pleas will put me back on parole and give me a violation.” Additionally, the Defendant
stated at his PCRA hearing on July 12, 2012, that he “withdrew my plea originally for the simple
40
fact that I went back to state prison on a parole violation.” There would have been no reason
whatsoever for this Court to have made Defendant’s sentence a county sentence knowing that the
Defendant had to serve an additional lengthy period of time in a state correctional institute as a
result of his state parole violation.
By the Court,
M. L. Ebert, Jr., J.
Matthew P. Smith
District Attorney’s Office
Oscar T. Robinson, II
Pro Se
40
PCRA hearing, 20.
25