Opinion
1421 WDA 2023 J-S22013-24
08-26-2024
COMMONWEALTH OF PENNSYLVANIA v. RYAN NOEL Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
Appeal from the PCRA Order Entered November 20, 2023 In the Court of Common Pleas of Blair County Criminal Division at No(s): CP-07-CR-0000512-2021
BEFORE: PANELLA, P.J.E., LANE, J., and BENDER, P.J.E.
MEMORANDUM
PANELLA, P.J.E.
Ryan Noel appeals from the order entered in the Blair County Court of Common Pleas on November 20, 2023, dismissing Noel's petition filed pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa. C.S.A. §§ 9541-9546. Additionally, PCRA counsel has filed a petition to withdraw as counsel, along with a Finley no-merit letter in which she concludes there are no issues of merit to raise on appeal. For the reasons discussed below, we find the PCRA court properly denied Noel relief and affirm. We further grant counsel permission to withdraw.
When counsel seeks to withdraw from representation on collateral appeal, as here, Turner and Finley apply. See Commonwealth v. Widgins, 29 A.3d 816, 817 n.2 (Pa. Super. 2011) (citing Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc)).
In November 2020, Noel was charged with disarming a law enforcement officer, aggravated assault, and resisting arrest under the above docket. In March 2021, Noel appeared for his preliminary hearing. The Commonwealth subsequently extended a global plea offer under which Noel would plead guilty under three separate cases, including the instant case, in exchange for a recommended aggregate sentence of 7 to 10 years' incarceration for all three cases.
On April 18, 2022, Noel entered a guilty plea under the three separate dockets to several charges, including aggravated assault under the instant docket. The trial court accepted the plea following an oral guilty plea colloquy. The trial court sentenced Noel the same day to the agreed upon aggregate sentence of 7 to 10 years' incarceration. No post-sentence motions or a direct appeal were filed.
On November 10, 2022, Noel filed a timely pro se PCRA petition. Counsel was appointed and subsequently filed an amended PCRA petition. On October 19, 2023, the PCRA court held an evidentiary hearing during which Noel and his plea counsel testified. After consideration of the petition, the testimony from the PCRA hearing, and a review of the record, including testimony from Noel's guilty plea and sentencing, the PCRA court denied and dismissed Noel's PCRA petition. This timely appeal followed.
Before any substantive analysis, we must examine whether PCRA counsel has met the procedural requirements for withdrawing as counsel.
Counsel petitioning to withdraw from PCRA representation must proceed … under [Turner], and [Finley] … Turner/Finley counsel must review the case zealously. Turner/Finley counsel must then submit a "no-merit" letter to the trial court, or brief on appeal to this Court, detailing the nature and extent of counsel's diligent review of the case, listing the issues which the petitioner wants to have reviewed, explaining why and how those issues lack merit, and requesting permission to withdraw.
Counsel must also send to the petitioner: (1) a copy of the "no-merit" letter/brief; (2) a copy of counsel's petition to withdraw; and (3) a statement advising petitioner of the right to proceed pro se or by new counsel.
If counsel fails to satisfy the foregoing technical prerequisites of Turner/Finley, the court will not reach the merits of the underlying claims but, rather, will merely deny counsel's request to withdraw. Upon doing so, the court will then take appropriate steps, such as directing counsel to file a proper Turner/Finley request or an advocate's brief.
However, where counsel submits a petition and no-merit letter that do satisfy the technical demands of Turner/Finley, the court-trial court or this Court-must then conduct its own review of the merits of the case. If the court agrees with counsel that the claims are without merit, the court will permit counsel to withdraw and deny relief. By contrast, if the claims appear to have merit, the court will deny counsel's request and grant relief, or at least instruct counsel to file an advocate's brief.Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa. Super. 2007) (citations omitted)
We find counsel has filed a proper application to withdraw as counsel and substantially complied with the requirements of Turner/Finley. Noel has not filed a response. We therefore turn to our own independent review of the record to determine if we agree with counsel's conclusion that Noel's PCRA petition was meritless.
Counsel's petition and brief did not initially comply with the procedural and technical requirements of Turner/Finley. Specifically, counsel attached to their brief the notification of rights letter sent to Noel. However, in the February 29, 2024 letter, counsel stated: "Please be advised that if I am permitted to withdraw as counsel, you have the right to proceed pro se, meaning by yourself, or by new counsel." Counsel did not clearly inform Noel of his immediate ability to proceed pro se or to retain private counsel and appeared to improperly frame Noel's ability to respond to counsel's petition to withdraw and Turner/Finley brief as contingent on this Court's granting of counsel's petition. Accordingly, this Court issued an order directing counsel to file a new notification of rights letter addressed to Noel, advising him of his immediate right to proceed pro se or with privately retained counsel, and a proof of service on Noel. See Commonwealth v. Muzzy, 141 A.3d 509, 512 (Pa. Super. 2016) (clarifying counsel's letter to the client shall inform the appellant that upon the filing of the petition to withdraw, the client has the immediate right to proceed in the appeal pro se or through privately retained counsel). Counsel subsequently filed a revised notification of rights letter that stated in its entirety that Noel had "the immediate right to proceed pro se or with new privately retained counsel in [this] case." This second letter did not indicate any connection to the Turner brief or motion to withdraw. Although the letters individually would not be compliant, we find the two letters combined appear to be substantially compliant with the procedural and technical requirements of Turner/Finley. Noel has not filed a response to counsel's petition to withdraw. Counsel also did not attach copies of the Pa.R.A.P. 1925(a) trial court opinion or the Pa.R.A.P. 1925(b) concise statement to the brief. See Pa.R.A.P. 2111(d) (stating "there shall be appended to the brief of Appellant a copy of the statement of errors complained of on appeal, filed with the trial court pursuant to Pa.R.A.P. 1925(b)"); see also Pa.R.A.P. 2111(b) (stating "[t]here shall be appended to the brief a copy of any opinions delivered by any trial court . . . "). Due to the procedural posture here, we do not find this deficiency is fatal to our review. As this is counsel's second attempt at compliance, we caution counsel to be more careful in the future in complying fully with the Turner/Finley procedural and briefing requirements.
The crux of Noel's issues, as distilled from his pro se and amended petitions, as well as from the arguments raised at the PCRA hearing, is that his plea counsel was ineffective for advising him to plead guilty, and therefore his plea was not voluntarily entered. Specifically, Noel insists he wanted to go to trial on the aggravated assault charge because the Commonwealth could not meet its burden of proving him guilty of that offense, and therefore it was error for plea counsel to advise him to plead guilty to that offense.
Our review of an order dismissing a PCRA petition is limited to examining whether the PCRA court's determinations are supported by the record and the court's decision is free of legal error. See Commonwealth v. Shaw, 217 A.3d 265, 269 (Pa. Super. 2019). Although we give great deference to the factual findings of the PCRA court and will not disturb those findings unless they have no support in the record, we apply a de novo standard of review to the PCRA court's legal conclusions. See Commonwealth v. Benner, 147 A.3d 915, 919 (Pa. Super. 2016).
"A plea of guilty effectively waives all nonjurisdictional defects and defenses." Commonwealth v. Gibson, 561 A.2d 1240, 1242 (Pa. Super. 1989) (citation omitted). Here, Noel failed to raise a challenge to his guilty plea at any time before the trial court. Noel did not move to withdraw his plea either. He also failed to pursue a direct appeal. Therefore, any challenge to his guilty plea is undoubtedly waived. See 42 Pa.C.S.A. § 9544(b).
Seemingly recognizing this, Noel phrases his current challenge as a claim that counsel was ineffective for advising him to plead guilty. "A criminal defendant has the right to effective counsel during a plea process as well as during trial." Commonwealth v. Rathfon, 899 A.2d 365, 369 (Pa. Super. 2006) (citation omitted). 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." Commonwealth v. Hickman, 799 A.2d 136, 141 (Pa. Super. 2002) (citation omitted). Also, "[w]here the defendant enters his plea on the advice of counsel, the voluntariness of the plea depends upon whether counsel's advice was within the range of competence demanded of attorneys in criminal cases." Id. (internal quotation marks and citations omitted).
We presume counsel is effective, and an appellant bears the burden to prove otherwise. See Commonwealth v. Bennett, 57 A.3d 1185, 1195 (Pa. 2012). The test for ineffective assistance of counsel is the same under both the Federal and Pennsylvania Constitutions. See Strickland v. Washington, 466 U.S. 668, 687-88 (1984); Commonwealth v. Kimball, 724 A.2d 326, 330-32 (Pa. 1999). An appellant must demonstrate: (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. See Commonwealth v. Solano, 129 A.3d 1156, 1162-63 (Pa. 2015). A failure to satisfy any prong of the test for ineffectiveness will require rejection of the claim. See id. at 1163. Where, as here, the appellant entered a plea of guilty, in order to satisfy the prejudice requirement, he must show that "there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Rathfon, 899 A.2d at 370 (citation omitted).
In the amended PCRA petition, Noel raised multiple claims of ineffective assistance of plea counsel relating to his guilty plea. Both Noel and his plea counsel, Attorney Siford, testified at the PCRA evidentiary hearing. The PCRA court thoroughly summarized its findings on the record as follows:
In regards to this matter the court finds from review of the [PCRA] petition that [Noel] is alleging nine bases of ineffective assistance counsel on the part of Attorney Siford. However, based on the testimony before the court today and the court's review of the hearing on [Noel]'s guilty plea and sentencing, the transcript of that, the court finds that no credible testimony was presented in regards to the following claims. [Noel] believed and avers that counsel erroneously advised [Noel] that he believed the Commonwealth had enough evidence to obtain a guilty verdict for each offense. I am not finding that the record bears that out. [Noel] believes and avers that counsel acquiesced to the Commonwealth's offer and coerced [Noel] into pleading guilty to an offense that he believed the Commonwealth did not have enough evidence to prove his guilt on. Attorney Siford testified clearly and credibly-that he did not force [Noel] to plead guilty to any charge. [Noel] also avers that counsel advised [Noel] to plead guilty to an offense that he wanted to take to trial and believed that he was not guilty of. The totality of the record in particular
the transcript of the guilty plea proceeding contradicts that claim. [Noel] believes and avers that counsel again advised and coerced [Noel] into pleading guilty to an offense that he was not guilty of. The record does not indicate that. [Noel] avers that but for counsel not coercing [Noel] into pleading guilty, [Noel] would not have done so. The testimony of Attorney Siford and the transcript contradict that claim. [Noel] believes and avers that he could have gone to trial and obtained a not guilty verdict on the aggravated assault charge. The court finds that is not the issue. The issue is whether he had ineffective assistance of counsel such that the guilty plea that he rendered on the charge of aggravated assault was not knowing, intelligent or voluntary. [Noel] avers that he entered the plea based on counsel advice that he believed the Commonwealth had enough evidence to obtain guilty verdicts on all of the offenses. The record contradicts that and plus the court accepts [the Commonwealth]'s argument that it is possible based on the stipulated to facts that the jury could find that [Noel] acted physically against a police officer. Police officers are a protected class such that any simple assault on a police officer is automatically an aggravated assault. So the court finds on the record presented to it that it would be possible for the jury to return a verdict of aggravated assault. Again, [Noel] avers that he was coerced from counsel into pleading guilty to an offense that he wished to take to trial and believed that he was not guilty of. The testimony and record contradicts that. [Noel] believes and avers that counsel advised him to plead guilty to an offer of sentence that was above the aggravated range. That ignores the totality of the agreement for the three cases of seven to twenty years which in its totality was below the aggravated range.N.T., PCRA Hearing, 10/19/23, at 42-44 (unnecessary capitalization omitted). The court then thoroughly summarized the transcript of the guilty plea colloquy as follows:
The court is going to refer in this record to the transcript of the guilty plea sentencing, and the full discussion with [] Noel starts on Page 1 of that 14 page transcript where the court asked Attorney Donaldson is your client going to plead or is he going to trial or going to jury selection today because he is next on my list to pick juries for unless there's a deal. So from the outset [] Noel was aware this is jury selection day. You have the option of taking a plea agreement or you have the option of picking a jury. Robert
Donaldson, Esquire: [] Noel is going to plea. I talked to him last night. I talked to him again this morning. I confirmed that with him just a half an hour ago. So he is going to plead to all three cases. So we brought it forward. Nichole Smith, Esquire, from the Commonwealth clarified that [] Noel was not entering pleas to disarming a law enforcement officer and he was not entering a plea to resisting arrest, and that transcript comports with the testimony here today that there is discussion with [] Noel that exactly what are you pleading and what are you not pleading guilty to. Then there was a discussion of who represented [] Noel on what case. The court inquired Attorney Siford on what criminal action number do you represent [] Noel; 512 and 513 of 2021. Is the plea agreement recited by Attorney Smith your understanding of the plea agreement? John Siford, Esquire: It is, Your Honor. He is willing to plea to everything on the 513 case, and then on the 512 case he is only going to plead to the aggravated assault charge. [] Noel is listening to this whole proceeding. I ask about the criminal information, about that, and this was accelerated or pulled up ... the case was advanced to the court so that [] Noel could have the benefit of the global offer and that's evidenced by Attorney Donaldson saying on Page 3: Judge, just so you know, this last case he is not scheduled for preliminary conference until sometime in May, but we have a global offer.. I'm sure you're okay with that. That's in regards to bringing a case forward so that [Noel] can get the benefit of the entire seven to twenty on multiple different counts on multiple different cases. We have a discussion about how the sentence should be structured, and at the conclusion of that I say on Page 5 of the transcript, yeah, there's going to be a last paragraph that says the agreement of the parties is that the court is effecting with this plea the state correctional institution sentence of seven to twenty years. So that's what you're supposed to get and you're supposed to get credit for time served. Do you understand, sir? This is addressed to [] Noel and [Noel] said, yes, Your Honor. So then there was an agreement by [] Noel that Attorney Donaldson could step out and go to Judge Bernard's courtroom, and the court at the bottom of Page 5 begins asking [] Noel-[] Noel, I need to ask you questions to make sure if you are entering guilty pleas that they're being done knowingly, intelligently and voluntarily; do you understand why I am going to ask you the questions? By [Noel]: I do, Your Honor. I asked about the understanding. Are you under the influence of any substance, any mental condition or any medical condition that prevents you from understanding what's happening here today? No, Your Honor. Second is voluntariness. Are you
being forced against your will to enter these pleas? Which is directly bearing on the PCRA claims. [Noel]: No, Your Honor. Do you understand that by pleading guilty you're giving up your right to a trial by jury. This is jury selection day. At the trial you will be presumed innocent and could remain silent. Do you understand you're giving up those rights? Yes, Your Honor. I'm going to ask you about the individual crimes, and I'm going to ask whether you admit that there's a basis in fact for you to plead guilty to them. Do you understand what I'm doing now? Yes, Your Honor. So we'll start with case 512 of 2021 which is the pertinent case to the PCRA. You're pleading guilty to one count of aggravated assault as a felony of the second degree. Are you admitting that there is a basis in fact for you to plead guilty to aggravated assault? [Noel]: Yes, Your Honor. So then we go on to talk about the other cases, and at the end of that on Page 8 of the transcript I say I am finding the pleas to be knowing, intelligent and voluntary and will proceed to sentencing in accordance with the plea agreement. So the sentence was entered. Gave him credit for time served. Then they started talking about the detainer and clarified that the sentence was not related in any way to the detainer, and at some point Attorney Siford-it looks like it was at sidebar on Page 10-said I just wanted to bring it up so that you know the court is aware-strike that. On Page 10, Line 17, John Siford, Esquire: I do want to ask him a couple of questions because this morning when you told him-he said he wasn't going to plead to the aggravated assault. So I just want to make sure he knows it's on the record that he has had time to think about that, and he changed his mind and will plead to the aggravated assault. I said I don't know. Whatever you want to do. We got a good record of it. He said he plead to it. But that's up to you, Attorney Siford. So then Attorney Siford decides that he does want to conduct additional colloquy of [] Noel on that point, and on Page 13 of the transcript, Line 6, he says to [] Noel I note early this morning you had some questions about 512 which is the aggravated assault case. [Noel]: Right. At that time you indicated you weren't going to take a plea to that; right? [Noel]: Right, because I thought-I was under the impression that the seven to twenty was going to be on for the drug and gun case. That's why I was at the beginning-that's why-and then when you said [the Commonwealth] said it's for the whole thing, not just the one ... John Siford, Esquire: For all three cases? [Noel]: Yeah. John Siford: Okay. [Noel]: So that's why I was like, well, all right then. John Siford: So nobody forced or threatened you or made you enter into a plea; right? [Noel]: Right. So you came to the conclusion yourself that is the best, you
know, maybe not the best but an appropriate way to dispose of your cases? [Noel]: Yes. All right. That's all I have, Your Honor.Id. at 44-48 (unnecessary capitalization omitted). Notably, Noel has not alleged any defect or ineffectiveness with the colloquy itself.
Based on the above, the court then concluded:
So based on that record of transcript and the record created today by both [Noel] and the attorney, Attorney Siford, I am finding it not credible when [Noel] asserts that he did not understand this plea agreement, that he did not enter it knowingly, intelligently and voluntarily, and I am specifically finding that the order, this 19th day of October, 2023, is based on the totality of the record including the exhibits, the court finds that Attorney Siford did not render ineffective assistance of counsel such that the guilty plea entered by [] Noel was not knowing, intelligent or voluntary.Id. at 48 (unnecessary capitalization omitted).
The statements made during a plea colloquy bind a criminal defendant. See Commonwealth v. Muhammad, 794 A.2d 378, 384 (Pa. Super. 2002). As a result, a defendant cannot assert grounds for withdrawing the plea that contradict statements made at that time. See Commonwealth v. Stork, 737 A.2d 789, 791 (Pa. Super. 1999). Further, "[t]he law does not require that appellant be pleased with the outcome of his decision to enter a plea of guilty: All that is required is that [appellant's] decision to plead guilty be knowingly, voluntarily and intelligently made." Commonwealth v. Yager, 685 A.2d 1000, 1004 (Pa. Super. 1996) (en banc) (internal quotation marks and citation omitted). Noel has not shown that his decision to enter his plea was not knowingly, voluntarily and intelligently made.
The PCRA court specifically credited the testimony of Attorney Siford. See N.T., PCRA Hearing, 10/19/23, at 42. Conversely, the PCRA court specifically did not credit Noel's testimony. See id. at 42, 48. Along with the court's factual determinations, these credibility determinations are binding on us. See Commonwealth v. Reyes-Rodriguez, 111 A.3d 775, 779 (Pa. Super. 2015).
Noel argues his guilty plea was not knowing and voluntary because he is innocent of the crime of aggravated assault and his counsel advised him to plead guilty even though the Commonwealth could not meet their burden of proof for that crime. This contention does not provide a basis to conclude Noel's guilty plea was invalid. The guilty plea to aggravated assault was specifically discussed at the plea hearing. In fact, it is the reason why, even after a thorough plea colloquy from the court, plea counsel specifically performed an additional colloquy on Noel based on this exact contention. It is clear that Noel nevertheless chose to plead guilty to this offense in order to receive the benefit of the global plea deal. It appears Noel is now dissatisfied with that decision. However, "the law does not require that [a defendant] be pleased with the outcome of his decision to enter a plea of guilty ...." Commonwealth v. Willis, 68 A.3d 997, 1002 (Pa. Super. 2013) (citation omitted).
For the reasons set forth above, we conclude Noel is entitled to no relief. The record supports the PCRA court's determinations, and we agree with counsel that Noel's claims lack merit. Moreover, having conducted an independent review of the record in light of the petition to withdraw, we agree that the PCRA petition is meritless.
Accordingly we affirm the PCRA court's dismissal of Noel's PCRA petition and grant counsel's petition to withdraw.
Order affirmed. Petition to withdraw granted.
Judgment Entered.