Opinion
J. S35010/16 No. 2283 EDA 2015
04-25-2016
COMMONWEALTH OF PENNSYLVANIA v. JOEY ROBINSON, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order, June 23, 2015, in the Court of Common Pleas of Monroe County
Criminal Division at Nos. CP-45-CR-0001179-2012, CP-45-CR-0002450-2013 BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., AND MUSMANNO, J. MEMORANDUM BY FORD ELLIOTT, P.J.E.:
Joey Robinson appeals from the June 23, 2015 order entered in the Court of Common Pleas of Monroe County that dismissed his petition filed pursuant to the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546 ("PCRA"). We affirm.
The PCRA court set forth the following:
On October 1, 2012, in the case docketed to No. 1179 CR 2012, [appellant] pled guilty to Count II, Driving Under the Influence ("DUI"), High Rate of Alcohol, as a second offense. The plea was entered pursuant to a written guilty plea form that was signed by [appellant] and his attorney.
On December 14, 2012, [appellant] was permitted to withdraw his guilty plea as the DUI offense was determined to be a third rather than a second offense for sentencing purposes. On this same day, [appellant] pled guilty to DUI as a third
offense. The plea was accepted and [appellant] was sentenced to intermediate punishment for one year.
On April 14, 2013, in the case docketed at No. 2450 CR 2013, [appellant] was arrested for another DUI. As a result, he was removed from the intermediate punishment program in case No. 1179. Resentencing was continued pending resolution of the new DUI charge.
On December 4, 2013, [appellant] pled guilty to the new DUI in case No. 2450. The plea was entered on a written guilty plea form that was signed by [appellant] and his attorney and supplemented with an oral colloquy by the Court.
On February 25, 2014, [appellant] was committed under both cases to the Department of Corrections for an evaluation to determine whether he should be sentenced to the State Intermediate Punishment ("SIP") program. Unfortunately, on July 28, 2014, [appellant] was found to be ineligible for the SIP program.
On August 22, 2014, [appellant] was re-sentenced in case No. 1179 to incarceration of 90 days to 12 months. In case No. 2450, he was sentenced to incarceration of 15 to 30 months. The sentences were [to] run consecutively.
On February 26, [2015], [appellant] filed a pro se PCRA [petition] alleging ineffective assistance of counsel. Donald Leeth, Esq[.], was appointed to represent [appellant] and was granted leave to file an amended petition. An amended petition was filed on May 7, 2015. In that petition, [appellant] alleged that his plea was entered "unknowingly" and "involuntarily" because he "believes" that he was "unaware to what he was pleading guilty to and asserts that trial counsel was ineffective." ([Appellant's] Amended PCRA [Petition], filed May 7, 2015, ¶¶ 6 and 7).
On June 23, 2015, a PCRA hearing was convened. [Appellant], his probation officer, and the three Monroe County Public Defenders who had represented [appellant] during plea proceedings and at the sentencing hearing testified and several exhibits were admitted. At the conclusion of the hearing, we issued an order denying the PCRA petition. [Appellant] then filed this appeal.PCRA court opinion, 10/9/15 at 2-3.
Appellant raises the following issue for our review: "Whether [appellant's] pleas of guilty were knowing and voluntary?" (Appellant's brief at 4.)
In PCRA appeals, our scope of review "is limited to the findings of the PCRA court and the evidence on the record of the PCRA court's hearing, viewed in the light most favorable to the prevailing party." Commonwealth v. Sam , 952 A.2d 565, 573 (Pa. 2008) (internal quotation omitted). Because most PCRA appeals involve questions of fact and law, we employ a mixed standard of review. Commonwealth v. Pitts , 981 A.2d 875, 878 (Pa. 2009). We defer to the PCRA court's factual findings and credibility determinations supported by the record. Commonwealth v. Henkel , 90 A.3d 16, 20 (Pa.Super. 2014) ( en banc ). In contrast, we review the PCRA court's legal conclusions de novo. Id.
A review of appellant's brief reveals that his issue on appeal alleges ineffective assistance of plea counsel.
In evaluating claims of ineffective assistance of counsel, we presume that counsel is effective. Commonwealth v. Rollins , 558 Pa. 532, 738 A.2d
435, 441 (Pa. 1999). To overcome this presumption, Appellant must establish three factors. First, that the underlying claim has arguable merit. See Commonwealth v. Travaglia , 541 Pa. 108, 661 A.2d 352, 356 (Pa. 1995). Second, that counsel had no reasonable basis for his action or inaction. Id. In determining whether counsel's action was reasonable, we do not question whether there were other more logical courses of action which counsel could have pursued; rather, we must examine whether counsel's decisions had any reasonable basis. See Rollins , 738 A.2d at 441; Commonwealth v. (Charles) Pierce , 515 Pa. 153, 527 A.2d 973, 975 (Pa. 1987). Finally, "Appellant must establish that he has been prejudiced by counsel's ineffectiveness; in order to meet this burden, he must show that 'but for the act or omission in question, the outcome of the proceedings would have been different.'" See Rollins , 738 A.2d at 441 (quoting Travaglia , 661 A.2d at 357). A claim of ineffectiveness may be denied by a showing that the petitioner's evidence fails to meet any of these prongs. Commonwealth v. (Michael) Pierce , 567 Pa. 186, 786 A.2d 203, 221-22 (Pa. 2001); Commonwealth v. Basemore , 560 Pa. 258, 744 A.2d 717, 738 n.23 (Pa. 2000); Commonwealth v. Albrecht , 554 Pa. 31, 720 A.2d 693, 701 (Pa. 1998) ("If it is clear that Appellant has not demonstrated that counsel's act or omission adversely affected the outcome of the proceedings, the claim may be dismissed on that basis alone and the court need not first determine whether the first and second prongs have been met.").Commonwealth v. Washington , 927 A.2d 586, 594 (Pa. 2007).
Allegations of ineffective assistance of counsel in connection with a guilty plea do not warrant relief unless counsel's ineffectiveness caused an involuntary, unknowing, or unintelligent plea. Commonwealth v. Escobar , 70 A.3d 838, 841 (Pa.Super. 2013), appeal denied , 86 A.3d 232 (Pa. 2014) (citation omitted). Where the defendant enters a plea on counsel's advice, its voluntary and knowing nature turns on whether counsel's advice fell within the range of competence demanded of attorneys in criminal cases. Id. We will not disturb a PCRA court's order unless it is unsupported by the record or contains legal error. Id.
"[W]here an appellate brief fails to provide any discussion of a claim with citation to relevant authority or fails to develop the issue in any other meaningful fashion capable of review, that claim is waived." Commonwealth v. Johnson , 985 A.2d 915, 924 (Pa. 2009) (citations omitted).
Here, we conclude that appellant has waived his ineffective assistance of plea counsel claim. In the "argument" section of appellant's brief, appellant sets forth four rules of law regarding ineffective assistance of counsel in connection with a guilty plea. (Appellant's brief at 7.) We note that appellant, however, fails to include the three-factor test that he must satisfy to overcome the presumption of counsel's effectiveness. After his brief and incomplete recitation of law, appellant sets forth the following two-sentence "argument":
In the present case, Appellant was passed around between various public defenders -- unaware of the number of DUI offenses, the statutory maximums, or the mandatory minimums. Only after learning that he was ineligible for State Intermediate Punishment based on an inaccurate criminal history did he realize the nature and consequences of the plea.Appellant's brief at 7-8.
Appellant fails to provide any meaningful argument or explanation that could in any way, shape, or form support the conclusion that he overcame the presumption of counsel's effectiveness. Stated differently, appellant has entirely failed to demonstrate that his claim has merit, that plea counsel had no reasonable basis for his action or inaction, and that but for plea counsel's ineffectiveness, the outcome of the proceedings would have been different. As a result, appellant waives this issue on appeal.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 4/25/2016