Opinion
J-S17025-18 No. 3202 EDA 2016
04-16-2018
COMMONWEALTH OF PENNSYLVANIA v. NOEL NIEVES Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order August 30, 2016
In the Court of Common Pleas of Chester County Criminal Division at No(s): CP-15-CR-0000858-2015 BEFORE: BENDER, P.J.E., LAZARUS, J., and KUNSELMAN, J. MEMORANDUM BY LAZARUS, J.:
Noel Nieves appeals, pro se, from the order, entered in the Court of Common Pleas of Chester County, denying his petition filed pursuant to the Post Conviction Relief Act, ("PCRA"), 42 Pa.C.S.A. §§ 9541-45. After our review, we affirm based on the opinion authored by the Honorable Anthony A. Sarcione.
In October 2015, Nieves committed three gunpoint robberies in Chester County. On July 15, 2015, Nieves entered a negotiated guilty plea to one count of robbery, 18 Pa.C.S.A. § 3701(a)(1)(ii), graded as a felony of the first degree at docket number 15-CR-0003829-2014, and two counts of robbery, 18 Pa.C.S.A. § 3701(a)(1)(ii), also graded as felonies of the first degree, at docket number 15-CR-000858-2105.
In accordance with the terms of the plea bargain, the court sentenced Nieves on July 17, 2015 to ten to twenty years' imprisonment followed by ten years' probation. Nieves did not file post-sentence motions or a direct appeal.
On November 4, 2015, Nieves filed a timely PCRA petition. He alleged plea counsel was ineffective for failing to file a pretrial motion to suppress on various grounds, for "manipulating" him into entering a guilty plea, for failing to develop a strategy to support his claim of innocence, and for failing to file a post-sentence motion for modification. On November 6, 2015, the court appointed PCRA counsel for Nieves.
On January 27, 2016, PCRA counsel filed a petition to withdraw and a no-merit letter pursuant to Commonwealth v. Turner , 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley , 550 A.2d 213 (Pa. Super. 1988) (en banc). On March 8, 2016, the court issued a notice of intent to dismiss pursuant to Pa.R.Crim.P. 907(1). Nieves responded with a pro se letter to the court, claiming he had been diagnosed with ADHD and bipolar disorder as a child and, although he denied being on medication at the time of his plea, "the truth was" that he was on medication and could not "focus right" during the guilty plea colloquy. In response, the court conducted another independent review of the record and again determined there were no genuine issues concerning any material fact and that no relief was warranted. The court issued another Rule 907 notice of intent to dismiss.
On April 20, 2016, Nieves filed an "Emergency Motion for Enlargement of Time," seeking additional time to respond to the court's Rule 907 notice. The court granted Nieves' motion in part, allowing him 60 days to respond. Nieves filed his response on June 20, 2016, again challenging plea counsel's effectiveness in suggesting that if he were convicted, Nieves, as a repeat felon, would be sentenced to a mandatory 30 to 60 years in prison, and that as a once-convicted felon, he would not be entitled to the presumption of innocence.
Nieves wrote a second letter to the court on July 19, 2016, claiming he was "not right mentally" when he tendered his plea due to his medicated status, and counsel had suggested that he not admit to being medicated at the colloquy. On July 22, 2016, the court entered an order directing PCRA counsel to review Nieves's Rule 907(1) response and his July 19, 2016 pro se letter, and to advise the court whether Nieves was entitled to an evidentiary hearing on whether plea counsel was ineffective for: (1) misadvising Nieves of the applicable law; (2) failing to file a pretrial motion to suppress; and (3) for counseling Nieves to plead guilty.
PCRA counsel complied and filed a letter to the court. Thereafter, following another independent review of the record in light of Nieves' supplemental claims and PCRA counsel's response, the court issued a final order on August 30, 2016 dismissing Nieves' PCRA petition and granting counsel's petition to withdraw. This pro se appeal followed.
Nieves raises the following issue for our review:
Whether this pro se brief upon appeal from the PCRA court's August 30, 2016, final dismissal order merits redress is a question of exceptional circumstances and the law?Appellant's Brief, at 2.
Essentially, Nieves is challenging the PCRA court's order dismissing his petition without a hearing to determine if his guilty plea was invalid due to plea counsel's ineffectiveness. We review such a decision for an abuse of discretion. Commonwealth v. Wah , 42 A.3d 335, 338 (Pa. Super. 2012).
A petitioner's right to an evidentiary hearing on a post-conviction petition is not absolute. "It is within the PCRA court's discretion to decline to hold a hearing if the petitioner's claim is patently frivolous and has no support either in the record or other evidence." Id., quoting Commonwealth v. Turetsky , 925 A.2d 876, 882 (Pa. Super. 2007) (internal citations omitted); see also Pa.R.Crim.P. 907. "The controlling factor . . . is the status of the substantive assertions in the petition. Thus, as to ineffectiveness claims in particular, if the record reflects that the underlying issue is of no arguable merit or no prejudice resulted, no evidentiary hearing is required." Commonwealth v. Baumhammers , 92 A.3d 708, 726-27 (Pa. 2014) (citations omitted).
Nieves has set forth a comprehensive argument in his pro se brief, outlining his claims of ineffectiveness of both plea counsel and appointed PCRA counsel. Nieves argues this Court should remand for a hearing to determine whether sufficient evidence exists of his "medically impaired mental status at the time of the negotiated plea deal," and whether plea counsel advised him that he would not be entitled to the presumption of innocence and would be subject to a mandatory 30-60 year sentence. Appellant's Brief, at 11, 15-17.
After our review of the parties' briefs, the record, and the relevant law, we agree with the PCRA court's determination that there were no genuine issues of material fact with respect to Nieves' claims of ineffectiveness. The record of the verbal guilty plea colloquy and the written guilty plea colloquy belies Nieves' claims that he was manipulated and coerced into entering a guilty plea. Nieves stated that he was a high school graduate, was not under the influence of "any drugs, alcohol or medicine," and that he did not suffer from any mental illness "or anything else that would cause [him] not to understand[.]" See N.T. Guilty Plea Colloquy, 7/17/15, at 3. He also stated that he understood that he was "presumed to be innocent[.]" Id. at 4. At the colloquy, Nieves admitted to the three gunpoint robberies, id. at 5, 7, and stated that he was satisfied with plea counsel's services. Id. at 10. See also Written Plea Colloquy, 7/17/15, at 6; Pa.R.Crim.P. 590.
"Our law presumes that a defendant who enters a guilty plea was aware of what he was doing. He bears the burden of proving otherwise." Commonwealth v. Pollard , 832 A.2d 517, 522-23 (Pa. Super. 2003). The record clearly demonstrates that Nieves understood the nature of the charges against him, and therefore "the voluntariness of the plea is established." Commonwealth v. Rush , 909 A.2d 805, 808 (Pa. Super. 2006). "A person who elects to plead guilty is bound by the statements he makes in open court while under oath and may not later assert grounds for withdrawing the plea which contradict the statements he made at his plea colloquy." Commonwealth v. Yeomans , 24 A.3d 1044, 1047 (Pa. Super. 2011).
With respect to his claim that plea counsel advised him to lie when the court asked whether he was medicated, and was ineffective in telling him he would not be entitled to the presumption of innocence due to a prior felony conviction, Nieves essentially asks this Court to accept that he perjured himself at the colloquy. As illustrated above, Nieves acknowledged that he was presumed innocent at the colloquy, and this was also affirmed in the written colloquy, which stated: "I am presumed innocent, and if the Commonwealth cannot prove me guilty beyond a reasonable doubt I must be set free on these charges." Written Guilty Plea Colloquy, 717/15, at 7. Nieves initialed that line, and signed his name at the bottom of the page. Id. at 7.
We conclude, therefore, that the PCRA court did not abuse its discretion in dismissing the petition without a hearing. Wah , supra. See Commonwealth v. Bryant , 855 A.2d 726 (Pa. 2004) (PCRA court may deny petition without hearing if following review of petition it determines hearing would serve no purpose); see also Pa.R.Crim.P. 907(1). We affirm the PCRA court's order dismissing Nieves' petition without a hearing based on Judge Sarcione's opinion. The parties are directed to attach a copy of that opinion in the event of further proceedings.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 4/16/18
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