Com. v. Allen

• Decision Date: 25 May 1999
• Citation: 732 A.2d 582,557 Pa. 135
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Orville ALLEN, Appellant.
• Court: Pennsylvania Supreme Court

732 A.2d 582

557 Pa. 135

COMMONWEALTH of Pennsylvania, Appellee, v. Orville ALLEN, Appellant.

Supreme Court of Pennsylvania.

Submitted September 8, 1997.

Decided May 25, 1999.

Foster A. Stewart, for Orville Allen.

Robert Cilville, Claire C. Capristo, Michael W. Streily, for Commonwealth.

Before FLAHERTY, Jr., C.J., and ZAPPALA, CAPPY, CASTILLE, NIGRO, NEWMAN, and SAYLOR, JJ.

OPINION

CASTILLE, Justice.

The issue before this Court is whether a "miscarriage of justice" occurred which would warrant relief on a repetitive Post Conviction Relief Act¹ ("PCRA") petition, where the guilty plea colloquy failed to reflect on the record that the defendant was made aware of the possibility of imposition of consecutive sentences. We find that both the heavy burden of proof for an ineffective assistance of counsel claim in the context of a repetitive PCRA petition and the prevailing legal standard for withdrawing a guilty plea preclude the finding of a miscarriage of justice under such circumstances. The facts relevant to this appeal are as follows: In December of 1984, appellant was charged with eight counts of burglary and two counts of receiving stolen property for breaking into several private residences and stealing jewelry, stereos, and television sets. He pled guilty to all counts and was sentenced to eight consecutive 2½ to 10 year sentences, for an aggregate sentence of twenty to eighty years' imprisonment.²

Appellant filed a motion to modify sentence, which the trial court denied. Appellant obtained new counsel, the public defender's office, and appealed to the Superior Court, alleging that the trial court abused its discretion by imposing an excessive and unconstitutional sentence. The Superior Court affirmed the judgment of sentence.³

While his appeal was pending before the Superior Court, on August 7, 1985, appellant filed a pro se petition under the Post Conviction Hearing Act ("PCHA," now the Post Conviction Relief Act, or "PCRA")⁴ alleging ineffective assistance of trial counsel and that he was unlawfully induced to enter his guilty plea.⁵ The PCHA court took no action on this petition since appellant's direct appeal was still pending.

On February 23, 1987, appellant filed an amended pro se petition under the PCHA, alleging that trial counsel was ineffective for, inter alia, leading him to believe that he would "surely" receive a concurrent sentence of no more than three years for each burglary count and for informing him that if he went to trial, he would "surely" receive a sentence of 50 to 100 years' imprisonment. Counsel was appointed to represent appellant.⁶ The PCHA court held an evidentiary hearing on July 18, 1991, during which appellant was the only witness offered to testify.⁷ The PCHA court denied the petition and the Superior Court affirmed.

Appellant, represented by new PCRA counsel (his fourth attorney), filed a second PCRA petition on November 22, 1994, alleging that his guilty plea was unlawful because he was not advised during the colloquy that he could be subject to consecutive sentences. Appellant further alleged that all prior counsel were ineffective for failing to raise this claim. The PCRA court denied the petition following a hearing.⁸ The PCRA court noted that although the transcript of the guilty plea colloquy did not reflect on the record that appellant was advised that the sentences could be imposed consecutively, the transcript of the July 18, 1991 PCHA hearing reflected that appellant was, in fact, aware that he could have received consecutive sentences.⁹ The Superior Court affirmed.¹⁰

This Court has held that a second or subsequent petition for post-conviction relief will not be entertained unless a strong prima facie showing is offered to demonstrate that a miscarriage of justice may have occurred. Commonwealth v. Lawson, 519 Pa. 504, 513, 549 A.2d 107, 112 (1988). Appellant makes a prima facie showing of entitlement to relief only if he demonstrates either that the proceedings which resulted in his conviction were so unfair that a miscarriage of justice occurred which no civilized society could tolerate, or that he was innocent of the crimes for which he was charged. Commonwealth v. Szuchon, 534 Pa. 483, 487, 633 A.2d 1098, 1100 (1993). Here, appellant failed to argue that he was innocent of the crimes to which he pled guilty.¹¹ Rather, the Superior Court affirmed the PCRA court's denial of the petition on the basis of its finding that appellant failed to demonstrate a "miscarriage of justice which no civilized society can tolerate." Our standard of review for an order denying post-conviction relief is limited to whether the trial court's determination is supported by evidence of record and whether it is free of legal error. Commonwealth v. Jermyn, 551 Pa. 96, 709 A.2d 849, 856 (1998).

In order to be eligible for relief under any PCRA petition, an appellant must plead and prove by a preponderance of the evidence that his conviction or sentence arose from one or more of the factors enumerated at 42 Pa.C.S. § 9543(a)(2),¹² that the issues he raised have not been previously litigated,¹³ and that the claims have not been waived.¹⁴Commonwealth v. Travaglia, 541 Pa. 108, 117, 661 A.2d 352, 356, (1995)cert. denied, 516 U.S. 1121, 116 S.Ct. 931, 133 L.Ed.2d 858 (1996); 42 Pa.C.S. § 9543(a)(3).

Here, we note that appellant's claim under his second PCRA petition is technically waived for failure to raise it on direct appeal or in his first PCRA petition. However, waiver of a previously unlitigated issue is excused under 42 Pa.C.S. § 9543(a)(3)(iii) where the petitioner can demonstrate that his trial or appellate counsel was ineffective. Commonwealth v. Christy, 540 Pa. 192, 201-202, 656 A.2d 877 (1995), cert. denied, 516 U.S. 872, 116 S.Ct. 194, 133 L.Ed.2d 130 (1995). Although a claim of ineffectiveness must be raised at the earliest possible stage in which the allegedly ineffective counsel no longer represents the petitioner, Commonwealth v. Griffin, 537 Pa. 447, 454, 644 A.2d 1167, 1170 (1994), a claim of ineffectiveness will not be deemed waived where the petitioner has layered the claim by alleging the ineffectiveness of all prior counsel for failing to pursue the claim. Commonwealth v. Morales, 549 Pa. 400, 409, 701 A.2d 516, 520 (1997). Here, appellant properly layered his ineffectiveness claims in his second PCRA petition by alleging the ineffectiveness of all prior counsel.

In order to prevail on an ineffectiveness claim, appellant must demonstrate that: (1) his claims are of arguable merit, (2) counsel had no reasonable basis for his actions, and (3) counsel's actions prejudiced appellant. Commonwealth v. Pierce, 515 Pa. 153, 158, 527 A.2d 973, 975 (1987).¹⁵ Allegations of ineffectiveness in connection with the entry of a guilty plea will serve as a basis for relief only if the ineffectiveness caused appellant to enter an involuntary or unknowing plea. Commonwealth v. Frometa, 520 Pa. 552, 554, 555 A.2d 92, 93 (1989). In determining whether a guilty plea was entered knowingly and intelligently, a reviewing court must review all of the circumstances surrounding the entry of that plea. Commonwealth v. Schultz, 505 Pa. 188, 192, 477 A.2d 1328, 1330 (1984).

Here, appellant claims that trial counsel was ineffective under Commonwealth v. Persinger, 532 Pa. 317, 615 A.2d 1305 (1992) for failing to petition to withdraw his guilty plea after the trial court failed to inform appellant on the record during the guilty plea colloquy of the meaning and possibility of receiving consecutive sentences. He alleges that all prior counsel were, therefore, ineffective for failing to raise trial counsel's ineffectiveness. However, we find that appellant has failed to demonstrate under the PCRA that any of his counsel were ineffective for failing to pursue this claim or a petition to withdraw the guilty plea.

In Commonwealth v. Persinger, the defendant alleged that his counsel was ineffective for failing to file a motion to withdraw his guilty plea after he was not informed that his sentences could be imposed consecutively. This Court determined that the guilty plea colloquy was defective and that the plea was not knowingly and intelligently entered because the plea transcript failed to reflect that the defendant had been informed that consecutive sentences could be imposed for his multiple convictions. The record revealed that the defendant had been informed by the court only as to the permissible range of sentence for each offense, but not that the sentences could be imposed consecutively. Thus, this Court held that a defendant must be informed that consecutive sentences could be imposed in order for a plea to be deemed voluntarily, knowingly and intelligently entered.¹⁶

It is crucial to note that Persinger was decided on the defendant's direct appeal. Thus, unlike appellant herein, the appellant in Persinger was not subject to the strict burden of proof required for relief under a second PCRA petition. Here, because appellant's ineffectiveness claims are raised in the context of his second PCRA petition, appellant must make a strong prima facie showing which demonstrates that a miscarriage of justice has taken place which no civilized society could tolerate, in order to be entitled to relief. Lawson, 519 Pa. at 513, 549 A.2d at 112.

Appellant has failed to make any such showing. Rather, appellant asks this Court to create a per se rule which presumes that a miscarriage of justice has taken place whenever a plea colloquy does not contain a record of the trial court specifically informing a defendant about the possibility of consecutive sentences. For purposes of a second PCRA petition, we cannot assume that a miscarriage of justice occurs merely because the record does not indicate that the plea colloquy informed appellant of the possibility for consecutive sentences.

Persinger involved circumstances where neither defense counsel nor the trial court advised the...