Opinion
J-S54019-16 No. 1745 WDA 2015
09-19-2016
COMMONWEALTH OF PENNSYLVANIA Appellee v. DANIEL ANTHONY KLOSS Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order October 13, 2015
In the Court of Common Pleas of McKean County
Criminal Division at No(s): CP-42-CR-0000322-2014 BEFORE: BENDER, P.J.E., OTT, J., and MUSMANNO, J. MEMORANDUM BY OTT, J.:
Daniel Anthony Kloss appeals from the order entered October 13, 2015, denying his first petition for collateral relief filed pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S. §§ 9541-9545. Kloss seeks relief from the judgment of sentence of a term of 42 months to nine years' imprisonment, imposed following his guilty plea to one count of possession with intent to deliver controlled substances ("PWID"). See 35 P.S. § 780-113(a)(30). On appeal, he challenges the ineffective assistance of plea counsel. For the reasons below, we affirm.
The facts and procedural history underlying this appeal are as follows. On January 22, 2014, the McKean County Drug Task Force, working with a confidential informant, set up a controlled purchase of Dilaudid and morphine tablets from Kloss in exchange for $1,550.00. See Guilty Plea Agreement, 6/27/2014, at 3. Following the exchange, Kloss was arrested and charged with PWID, possession of controlled substances, and criminal use of a communication facility. Thereafter, on June 27, 2014, Kloss entered a guilty plea to one count of PWID. In exchange for the plea, the Commonwealth agreed that Kloss's sentence would be "no more than" a term of 42 months' to nine years' imprisonment. Guilty Plea Agreement, 6/27/2014, at 1. On September 22, 2014, the trial court imposed a standard range sentence of 42 months' to 9 years' imprisonment, and indicated Kloss was RRRI eligible after serving 31½ months' imprisonment. No direct appeal was filed. Thereafter, on November 13, 2014, the trial court amended its prior sentencing order to reflect that Kloss was not RRRI eligible until he served 35 months' imprisonment.
See 35 P.S. §§ 780-113(a)(30) and (a)(16), and 18 Pa.C.S. § 7512(a), respectively.
Recidivism Risk Reduction Incentive, 61 Pa.C.S. §§ 4501-4512.
Although Kloss challenged the belated modification of his sentence in his PCRA petition, he has not repeated that challenge on appeal. Nevertheless, we note the original sentence contained a clerical error. See N.T., 10/12/2015, at 72; 61 Pa.C.S. § 4505(c)(2) (mandating that, to be eligible for RRRI, a defendant must serve five-sixths of his minimum sentence when that sentence is greater than three years). Therefore, the court had the authority to correct the sentence outside of the usual 30-day time limitation. See 42 Pa.C.S. § 5505; Commonwealth v. Walters , 814 A.2d 253, 256 (Pa. Super. 2002) (noting trial court has the power to correct "patent and obvious" mistakes after 30-day appeal period), appeal denied, 831 A.2d 599 (Pa. 2003).
On December 5, 2014, Kloss filed a timely pro se PCRA petition. Although the PCRA court appointed counsel, Kloss later retained Robert E. Draudt, Esq., to litigate his PCRA claims. On September 8, 2015, counsel filed an amended petition, asserting the ineffectiveness of plea counsel. At the conclusion of an evidentiary hearing on October 12, 2015, the PCRA court denied Kloss's petition. This timely appeal followed.
On November 10, 2015, the PCRA court directed Kloss to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). After recieving an extension of time, Kloss complied with the court's directive and filed a concise statement on January 6, 2016.
On appeal, Kloss argues the PCRA court erred when it denied his request for relief based upon plea counsel's ineffectiveness. Specifically, Kloss contends plea counsel failed to: (1) file a pretrial motion to suppress both a statement he gave to police and evidence retrieved during a search of his car; (2) contact potential witnesses; (3) meet with Kloss and adequately prepare for trial; and (4) inform Kloss of his post-sentence rights. Kloss also asserts counsel induced him to enter an unknowing plea based on counsel's assurance that he would be sentenced to a term of home confinement. See Kloss's Brief at 6.
When reviewing an order dismissing a PCRA petition, we must determine whether the PCRA court's findings of fact are supported by the record, and whether its legal conclusions are free from error. Commonwealth v. Spotz , 84 A.3d 294, 311 (Pa. 2014). "Great deference is granted to the findings of the PCRA court, and these findings will not be disturbed unless they have no support in the certified record." Commonwealth v. Carter , 21 A.3d 680, 682 (Pa. Super. 2011) (citation omitted). Moreover, "[t]he PCRA court's credibility determinations, when supported by the record, are binding on this Court." Commonwealth v. Spotz , 18 A.3d 244, 259 (Pa. 2011).
Where, as here, the petitioner alleges the ineffectiveness of prior counsel in conjunction with a guilty plea, our review is as follows:
To prevail on a claim alleging counsel's ineffectiveness under the PCRA, Appellant must demonstrate (1) that the underlying claim is of arguable merit; (2) that counsel's course of conduct was without a reasonable basis designed to effectuate his client's interest; and (3) that he was prejudiced by counsel's ineffectiveness, i.e. there is a reasonable probability that but for the act or omission in question the outcome of the proceedings would have been different.
It is clear that a criminal defendant's right to effective counsel extends to the plea process, as well as during trial. However, [a]llegations of ineffectiveness in connection with the entry of a guilty plea will serve as a basis for relief only if the ineffectiveness caused the defendant to enter an involuntary or unknowing plea. Where the defendant enters his plea on the advice of counsel, the voluntariness of the plea depends on whether counsel's advice was within the range of competence demanded of attorneys in criminal cases.
Commonwealth v. Wah , 42 A.3d 335, 338 (Pa. Super. 2012) (citations, quotation, and quotation marks omitted). "[T]he law does not require that [the defendant] be pleased with the outcome of his decision to enter a plea of guilty: All that is required is that [his] decision to plead guilty be knowingly,
voluntarily, and intelligently made." [ Commonwealth v.] Anderson , 995 A.2d [1184,] 1192 [Pa. Super. 2010] (citations, quotation, and quotation marks omitted).Commonwealth v. Willis , 68 A.3d 997, 1001-1002 (Pa. Super. 2013).
When considering the voluntariness of a defendant's guilty plea,
[t]he longstanding rule of Pennsylvania law is that a defendant may not challenge his guilty plea by asserting that [she] lied while under oath, even if [she] avers that counsel induced the lies. A person who elects to plead guilty is bound by the statements [she] makes in open court while under oath and [she] may not later assert grounds for withdrawing the plea which contradict the statements [she] made at [her] plea colloquy.Commonwealth v. Pollard , 832 A.2d 517, 523 (Pa. Super. 2003). See also Commonwealth v. Yeomans , 24 A.3d 1044, 1047 (Pa. Super. 2011).
Upon our review of the certified record, the PCRA hearing transcript, the parties' briefs, and the applicable case law, we find the PCRA court thoroughly addressed and properly disposed of Kloss's claims on appeal in its opinion. See PCRA Court Opinion, 2/8/2016, at 2-9 (finding (1) plea counsel credibly explained that she did not file a pretrial suppression motion because Kloss signed both a Miranda waiver and a consent to search his vehicle, and Kloss's claim that the forms were signed after the police questioned him and searched his car "just doesn't make sense[;]" (2) Kloss failed to demonstrate how the absent witnesses' testimony would have been beneficial to his defense; (3) counsel had a sufficient number of contacts with Kloss, based on counsel's credible testimony "that she had met several times with [Kloss] in person and had exchanged emails, letters and telephone calls with [him];" (4) Kloss's written and oral plea colloquies demonstrated his plea was knowingly and voluntarily entered; and (5) the court informed Kloss of his post-sentence rights during the sentencing hearing). Accordingly, we adopt the PCRA court's opinion as dispositive.
Miranda v. Arizona , 384 U.S. 436 (1966).
Because Kloss has failed to demonstrate that plea counsel was ineffective, or that he is otherwise entitled to post-conviction relief, we affirm the order of the PCRA court.
We note the certified record does not include the transcripts from either Kloss's guilty plea hearing or his sentencing hearing. Moreover, upon our inquiry regarding the missing testimony, we were informed by the trial court that PCRA counsel ordered only the transcription of the PCRA hearing testimony. Therefore, to the extent any of Kloss's claims are dependent upon the other transcripts, they are waived. It is well-established that it is the appellant's obligation to "identify and order" those transcripts necessary to prosecute his appeal. Commonwealth v. Lesko , 15 A.3d 345, 410 (Pa. 2011).
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary DATE: 9/19/2016
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