Com. v. Yager

• Decision Date: 07 November 1996
• Citation: 685 A.2d 1000,454 Pa.Super. 428
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Edward Antjuan YAGER, Appellant.
• Court: Pennsylvania Superior Court

Page 1000

685 A.2d 1000

454 Pa.Super. 428

COMMONWEALTH of Pennsylvania, Appellee, v. Edward Antjuan YAGER, Appellant.

Superior Court of Pennsylvania.

Argued May 6, 1996.

Filed Nov. 7, 1996.

Kirk J. Henderson, Assistant Public Defender, Pittsburgh, for appellant.

Thomas N. Farrell, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.

Before McEWEN, President Judge, CAVANAUGH, President Judge Emeritus and CIRILLO, President Judge Emeritus, and DEL SOLE, BECK, POPOVICH, FORD ELLIOTT, SAYLOR and EAKIN, JJ.

EAKIN, Judge.

Edward Antjuan Yager appeals from the order of the Court of Common Pleas of Allegheny County (Dauer, J., presiding) denying his petition for relief under the Post-Conviction Relief Act (PCRA), 42 Pa.C.S. § 9541 et seq. ¹ We affirm.

On February 8, 1991 at 2:00 a.m., appellant and an accomplice burglarized a car dealership. When Pittsburgh Police Officers Joseph Renk and Frank Liftin responded to the dealership's silent alarm, appellant pulled a knife and plunged it seven inches into Officer Liftin's abdomen. Officer Renk heard the noise, came to investigate and struggled with appellant , finally subduing and handcuffing him. Appellant's accomplice escaped.

On July 15, 1991, appellant pled guilty to burglary, ² theft by unlawful taking, ³ receiving stolen property, ⁴ two counts of aggravated assault, ⁵ recklessly endangering another person, ⁶ resisting arrest, ⁷ possession of instruments of crime ⁸ and criminal conspiracy. ⁹ On August 21, 1991, appellant was sentenced to an aggregate term of imprisonment of ten (10) to forty-seven (47) years. ¹⁰ Appellant filed a timely motion to reconsider sentence on the grounds that he had admitted his guilt, had cooperated with police and had presented mitigating evidence of his good character. The trial court denied the motion to modify. At no time did appellant file a motion to withdraw his plea or a direct appeal from the judgment of sentence.

After apparent satisfaction with his sentence for almost two years to the day following his plea, appellant filed a pro se PCRA petition on July 14, 1993. Appointed counsel filed an amended PCRA petition that the trial court denied after a hearing.

Appellant raises the following issue:

Did the lower court improperly deny PCRA relief where plea counsel failed to correct a defective guilty plea colloquy or move for its withdrawal when it was not explained on the record to appellant that consecutive sentences could be imposed? ¹¹

Our review of a post-conviction court's grant or denial of relief is limited to determining whether the court's findings are supported by the record and the court's order is otherwise free of legal error. Commonwealth v. Legg, 447 Pa.Super. 362, 365, 669 A.2d 389, 391 (1995). We will not disturb findings that are supported by the record. Id.

To be eligible for post-conviction relief, appellant must establish by a preponderance of the evidence that his conviction or sentence resulted from "a plea of guilty unlawfully induced where the circumstances make it likely that the inducement caused an individual to plead guilty." 42 Pa.C.S. § 9543(a)(2)(iii). ¹² See also Commonwealth v. Shekerko, 432 Pa.Super. 610, 639 A.2d 810, alloc. denied, 539 Pa. 677, 652 A.2d 1322 (1994) (because Shekerko pled guilty, the truth- determining process is not implicated under 42 Pa.C.S. § 9543(a)(2)(ii); thus, his ineffectiveness claim in context of guilty plea fell under section 9543(a)(2)(iii), concerning the lawfulness of his plea). ¹³

Appellant claims, in effect, that his plea was unknowing because of counsel's ineffective stewardship, i.e., failing to correct a defective guilty plea colloquy during which appellant was not informed that the court could impose consecutive sentences. Appellant argues that because the on-the-record colloquy failed to satisfy the mandate of Commonwealth v. Persinger, 532 Pa. 317, 615 A.2d 1305 (1992), his plea is invalid and he is entitled to withdraw it. In Persinger, our Supreme Court determined that Persinger's plea was not intelligently and understandingly entered where he thought his sentences would run concurrently and he was never informed that consecutive sentences could be imposed upon his multiple convictions. Accordingly, Persinger demonstrated "prejudice on the order of manifest injustice" and was entitled to withdraw his plea. The Court further held that trial counsel's failure to file a motion to withdraw the plea amounted to ineffective assistance. In the instant case, however, the Commonwealth counters that Persinger is inapposite because appellant was advised by trial counsel that the sentences could (and likely would) be consecutive.

Our standard for reviewing an ineffectiveness claim is well settled:

The threshold inquiry in ineffectiveness of counsel claims is whether the issue/argument/tactic which counsel has foregone and which forms the basis for the assertion of ineffectiveness is of arguable merit; for counsel cannot be ineffective for failing to assert a meritless claim. Once this threshold is met[,] we apply the 'reasonable basis' test to determine whether counsel's chosen course was designed to effectuate his client's interests. If we conclude that the particular course chosen by counsel had some reasonable basis, our inquiry ceases and counsel's assistance is deemed effective. If we determine that there was no reasonable basis for counsel's chosen course[,] then the accused must demonstrate that counsel's ineffectiveness worked to his prejudice. The burden of establishing counsel's ineffectiveness is on the appellant because counsel's stewardship ... is presumptively effective.

Commonwealth v. Paolello, 542 Pa. 47, 75-76, 665 A.2d 439, 454 (1995) (citations omitted).

Moreover, claims of counsel's ineffectiveness in connection with a guilty plea will provide a basis for relief only if the ineffectiveness caused an involuntary or unknowing plea. Commonwealth v. Chumley, 482 Pa. 626, 394 A.2d 497 (1978), cert. denied, 440 U.S. 966, 99 S.Ct. 1515, 59 L.Ed.2d 781 (1979). This is similar to the "manifest injustice" standard applicable to all post-sentence attempts to withdraw a guilty plea. Commonwealth v. Fluharty, 429 Pa.Super. 213, 632 A.2d 312 (1993). The 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. Myers, 434 Pa.Super. 221, 225-26, 642 A.2d 1103, 1105 (1994).

To determine the voluntariness of a guilty plea and whether a defendant acted knowingly and intelligently, the Comment to Pa.R.Crim.P. 319 mandates that a trial court inquire into six particular areas, including "Is the defendant aware of the permissible range of sentences and/or fines for the offenses charged?" This includes the requirement that a defendant not only be advised of the maximum punishment that he might receive but also that consecutive sentences might be imposed. Persinger, 532 Pa. at 323, 615 A.2d at 1308.

In the instant case, with trial counsel's assistance, appellant completed an extensive written guilty plea form in which he acknowledged that he understood, and had discussed with counsel, the "permissible range of sentences and/or fines that could be imposed for the offenses charged." The trial court expressly informed appellant of the charges against him and the minimum and maximum sentences he could receive for each separate crime. (N.T. Guilty Plea Colloquy, 7/15/91, at 13-17). Appellant said he understood the charges against him and had discussed with counsel the charges and the possible penalties. (Id. at 17). Clearly, appellant was fully aware of the possible sentence he risked on each offense to which he pled guilty.

Nevertheless, appellant's guilty plea colloquy is deficient as it contains no reference to the possible imposition of consecutive sentences. Had the sentence imposed exceeded appellant's expectations of imprisonment so as to make his plea involuntary or unknowing, Persinger would mandate vacating the judgment of sentence, allowing appellant to withdraw his plea and remanding this case for trial. We do not impose this result because the record shows appellant's plea was voluntarily and knowingly entered.

Determining whether a defendant understood the connotations of his plea and its consequences requires an examination of the totality of the circumstances surrounding the plea. Commonwealth v. Blackwell, 436 Pa.Super. 294, 647 A.2d 915 (1994), alloc. denied, 540 Pa. 576, 655 A.2d 509 (1995). Even if there is an omission or defect in the guilty plea colloquy, the guilty plea will not be deemed invalid if the defendant fully understood the nature and consequences of his or her plea and then voluntarily and knowingly decided to plead guilty. Id. at 307-08, 647 A.2d at 921-22.

In reviewing a collateral attack on the stewardship of counsel, we presume that counsel is effective, and that "not every error by counsel can or will result in a constitutional violation of a defendant's Sixth Amendment right to counsel." Commonwealth v. Howard, 538 Pa. 86, 100, 645 A.2d 1300, 1307 (1994). Testimony by appellant and his counsel at the PCRA hearing may, if sufficiently specific, be considered in reviewing all the circumstances surrounding the plea. Commonwealth v. Schultz, 505 Pa. 188, 477 A.2d 1328 (1984) (Schultz's assertion that he did not have knowledge of burglary charge against him was belied by his testimony at hearing on motion to withdraw his guilty plea when he said he entered the grocery store with the "intention of securing money" and that at the time of the plea he knew he was accused of trying to hold up a grocery store); Commonwealth v. Gardner, 499 Pa. 263, 452 A.2d 1346 (1982) (defective guilty plea colloquy did not permit withdrawal of plea when supplemented by PCHA testimony of defense counsel that he did not object to...