Opinion
J-S67033-17 No. 2422 EDA 2016
11-22-2017
COMMONWEALTH OF PENNSYLVANIA Appellee v. MELVIN MCLAUGHLIN Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order October 26, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0005840-2011, CP-51-CR-0005846-2011, CP-51-CR-0012910-2010 BEFORE: GANTMAN, P.J., MUSMANNO, J., and STEVENS, P.J.E. MEMORANDUM BY GANTMAN, P.J.:
Former Justice specially assigned to the Superior Court.
Appellant, Melvin McLaughlin, appeals nunc pro tunc from the order entered in the Philadelphia County Court of Common Pleas, which denied his first petition filed under the Post Conviction Relief Act ("PCRA"). We affirm.
In its opinion, the PCRA court fully and correctly sets forth the relevant facts and procedural history of his case. Therefore, we have no need to restate them. We add the court sentenced Appellant at Docket No. 12910-2010 to seventeen and one-half (17½) to thirty-five (35) years' incarceration for attempted murder and concurrent terms of two and one-half (2½) to five (5) years' incarceration for possession of a firearm prohibited and two and one-half (2½) to five (5) years' incarceration for carrying a firearm in public in Philadelphia. At Docket No. 5840-2011, the court sentenced Appellant to five (5) to ten (10) years' imprisonment for receiving stolen property concurrent to the attempted murder sentence. At Docket No. 5846-2011, the court sentenced Appellant to two and one-half (2½) to ten (10) years' incarceration for prohibited possession of a firearm consecutive to the attempted murder sentence. On the remaining charges at Docket No. 5846-2011, the court sentenced Appellant to three and one-half (3½) to seven (7) years' imprisonment for firearms not to be carried without a license and two and one-half (2½) to five (5) years' imprisonment for carrying firearms in public in Philadelphia concurrent to the attempted murder sentence. The court sentenced Appellant to an aggregate term of twenty (20) to forty-five (45) years' incarceration.
The PCRA court dismissed Appellant's PCRA petition on October 26, 2015. Appellant filed on November 20, 2015, a pro se application to: (i) appeal the dismissal of his PCRA petition; (ii) proceed in forma pauperis; and (iii) have appellate counsel appointed. On May 12, 2016, the PCRA court granted Appellant's petition and permitted him to file a notice of appeal within 30 days of court-appointed counsel's entry of appearance. Counsel entered his appearance on June 29, 2016, and Appellant timely filed a notice of appeal nunc pro tunc on July 26, 2016.
The record does not contain an order issuing appropriate notice per Pa.R.Crim.P. 907 prior to the court's dismissal of Appellant's PCRA petition. Appellant has not raised this issue on appeal, so he waived any defect in notice. See Commonwealth v. Taylor , 65 A.3d 462 (Pa.Super. 2013) (explaining appellant's failure to challenge lack of Rule 907 notice results in waiver of claim). --------
Appellant raises one issue for our review:
DID THE PCRA COURT ERR WHEN IT DISMISSED APPELLANT['S] POST CONVICTION RELIEF ACT PETITION AND DENIED HIM RELIEF REQUESTED IN THE FORM OF PERMISSION TO WITHDRAW HIS GUILTY PLEA, OR, IN THE ALTERNATIVE, AN EVIDENTIARY HEARING?(Appellant's Brief at 2).
Our standard of review of the denial of a PCRA petition is limited to examining whether the evidence of record supports the court's determination and whether its decision is free of legal error. Commonwealth v. Conway , 14 A.3d 101, 108 (Pa.Super. 2011), appeal denied, 612 Pa. 687, 29 A.3d 795 (2011). This Court grants great deference to the findings of the PCRA court if the record contains any support for those findings. Commonwealth v. Boyd , 923 A.2d 513, 515 (Pa.Super. 2007), appeal denied, 593 Pa. 754, 932 A.2d 74 (2007). We give no such deference, however, to the court's legal conclusions. Commonwealth v. Ford , 44 A.3d 1190, 1194 (Pa.Super. 2012). 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, the petitioner is not entitled to PCRA relief, and no purpose would be served by any further proceedings. Commonwealth v. Hardcastle , 549 Pa. 450, 454, 701 A.2d 541, 542-43 (1997).
Appellant argues plea counsel's ineffective assistance induced Appellant to enter an unknowing, unintelligent, and involuntary guilty plea. Appellant submits he entered his guilty plea based on plea counsel's belief the court would impose a maximum aggregate sentence of thirteen (13) years' imprisonment if Appellant pled guilty. Appellant avers the PCRA court erred when it failed to hold an evidentiary hearing. Appellant concludes this Court should permit Appellant to withdraw his guilty plea or, alternatively, remand for the PCRA court to conduct an evidentiary hearing. We disagree.
The law presumes counsel has rendered effective assistance. Commonwealth v. Gonzalez , 858 A.2d 1219 (Pa.Super. 2004), appeal denied, 582 Pa. 695, 871 A.2d 189 (2005). To prevail on a claim of ineffective assistance of counsel, a petitioner must show, by a preponderance of the evidence, 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. Commonwealth v. Turetsky , 925 A.2d 876 (Pa.Super. 2007), appeal denied, 596 Pa. 707, 940 A.2d 365 (2007). The petitioner must demonstrate: "(1) the underlying claim is of arguable merit; (2) ...counsel had no reasonable strategic basis for his...action or inaction; and (3) but for the errors and omissions of counsel, there is a reasonable probability that the outcome of the proceedings would have been different." Id. at 880. "The petitioner bears the burden of proving all three prongs of the test." Id. "If a petitioner fails to plead or meet any elements of the [ineffectiveness] test, his claim must fail." Commonwealth v. Burkett , 5 A.3d 1260, 1272 (Pa.Super. 2010). See also Commonwealth v. Chmiel , 612 Pa. 333, 362, 30 A.3d 1111, 1128 (2011) (explaining boilerplate allegations and bald assertions of no reasonable basis and/or ensuing prejudice cannot satisfy petitioner's burden of proving ineffectiveness).
"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." Commonwealth v. Moser , 921 A.2d 526, 531 (Pa.Super. 2007) (quoting Commonwealth v. Hickman , 799 A.2d 136, 141 (Pa.Super. 2002)). "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." Moser , supra. Pennsylvania law does not require the defendant to "be pleased with the outcome of his decision to enter a plea of guilty[; a]ll that is required is that his decision to plead guilty be knowingly, voluntarily and intelligently made." Id. at 528-29. Mere disappointment in the sentence does not constitute the necessary "manifest injustice" to render the defendant's guilty plea involuntary. Commonwealth v. Pollard , 832 A.2d 517, 522 (Pa.Super. 2003). See also Commonwealth v. Kelly , 5 A.3d 370, 377 (Pa.Super. 2010), appeal denied, 613 Pa. 643, 32 A.3d 1276 (2011) (reiterating principle that courts discourage entry of plea as sentence-testing device).
The Pennsylvania Rules of Criminal Procedure mandate that pleas be taken in open court, and require the court to conduct an on-the-record colloquy to ascertain whether a defendant is aware of his rights and the consequences of his plea. Commonwealth v. Hodges , 789 A.2d 764 (Pa.Super. 2002). Specifically, the court must confirm a defendant understands: (1) the nature of the charges to which he is pleading guilty; (2) the factual basis for the plea; (3) his right to trial by jury; (4) the presumption of innocence; (5) the permissible ranges of sentences and fines possible; and (6) that the judge is not bound by the terms of the agreement unless he accepts the agreement. Commonwealth v. Watson , 835 A.2d 786 (Pa.Super. 2003).
A guilty plea will be deemed valid if the totality of the circumstances surrounding the plea shows that the defendant had a full understanding of the nature and consequences of his plea such that he knowingly and intelligently entered the plea of his own accord. Commonwealth v. Fluharty , 632 A.2d 312, 314-15 (Pa.Super. 1993). Pennsylvania law presumes the defendant is aware of what he is doing when he enters a guilty plea, and the defendant bears the burden to prove otherwise. Pollard , supra at 523. A defendant who pleads guilty is bound by the statements he makes while under oath, "and he may not later assert grounds for withdrawing the plea which contradict the statements he made at his plea colloquy." Id.
After a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinion of the Honorable Ellen Ceisler, we conclude Appellant's issue merits no relief. The PCRA court opinion comprehensively discusses and properly disposes of the question presented. ( See PCRA Court Opinion, filed October 27, 2016, at 4-11) (finding: in his Rule 1925(b) statement, Appellant baldly asserted PCRA court error without reasons why PCRA court erred; therefore, Appellant waived his issue for appellate review; moreover, even if Appellant had properly preserved his issue, it would not merit relief; at trial, Appellant expressed desire to plead guilty after Victim took stand and identified Appellant as shooter; court conducted adequate guilty plea colloquy on record; during colloquy, court informed Appellant of gravity of decision to plead guilty and nature of his open plea, and Appellant did not hesitate; Appellant confirmed he understood consequences of choice to plead guilty; Appellant signed three separate written guilty plea colloquies, which expressly indicated plea was open; Appellant expressed no shock when court explained to Appellant his potential sentence; Appellant affirmed he understood his limited avenues of appeal from judgment of sentence after pleading guilty; court determined Appellant knew there was no plea bargain presented and made knowing, intelligent, and voluntary decision to plead guilty; court properly dismissed Appellant's PCRA petition without hearing). We accept the PCRA court's rationale.
Further, Appellant's claim amounts to an attempt to withdraw his guilty plea because he is dissatisfied with his sentence. Appellant's disappointment does not warrant relief. See Pollard , supra. If the court had exercised its discretion to impose each sentence consecutively, Appellant's aggregate sentence would have been thirty-six (36) to seventy-seven (77) years' incarceration. See Commonwealth v. Lloyd , 878 A.2d 867, 873 (Pa.Super. 2005), appeal denied, 585 Pa. 687, 887 A.2d 1240 (2005) (stating: "The imposition of consecutive rather than concurrent sentences lies within the sound discretion of the sentencing court"). Instead, the court imposed concurrent sentences to give Appellant an aggregate sentence of twenty (20) to forty-five (45) years' incarceration. For the foregoing reasons, the record demonstrates Appellant's ineffectiveness claim lacks arguable merit, and Appellant is not entitled to relief. See Burkett , supra ; Turetsky , supra. Accordingly, we affirm on the basis of the PCRA court's opinion.
Order affirmed. Judgment Entered. /s/ _________
Joseph D. Seletyn, Esq.
Prothonotary Date: 11/22/2017
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