Commonwealth v. Boyer

• Docket Number: 439 WDA 2021
• Decision Date: 24 May 2022
• Citation: 279 A.3d 1279 (Table)
• Parties: COMMONWEALTH of Pennsylvania v. Robert Frank BOYER, Appellant
• Court: Pennsylvania Superior Court

279 A.3d 1279 (Table)

COMMONWEALTH of Pennsylvania

v.Robert Frank BOYER, Appellant

No. 439 WDA 2021

Superior Court of Pennsylvania.

Filed: May 24, 2022

MEMORANDUM BY OLSON, J.:

Appellant, Robert Frank Boyer, appeals from the March 17, 2021 order denying his petition filed pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. §§ 9541 - 9546. We affirm.

The PCRA court summarized the factual and procedural history as follows:

On June 17[, 2017,] and [June] 19, 2017, the Pennsylvania Office of Attorney General's Bureau of Special Investigation ("BSI") received notifications from the National Center for Missing and Exploited Children that several images of child pornography had been uploaded to [an] email account belonging to [Appellant]. The BSI investigation revealed that the victims depicted in the images ranged from 3 [to] 15 years of age. When [Appellant] was questioned by BSI investigators, [Appellant] admitted that he was familiar with the images and that he attempted to disseminate the images to an unknown email address.

On July 20, 2017, [Appellant] was charged with six counts of [sexual abuse of children -]dissemination of [photographs, videotapes, computer depictions, and files, twenty] counts of [sexual abuse of children -]child pornography, and one count of criminal use of communication facility.^[1] Thereafter, [Appellant retained] Megan Will, [Esquire ("Attorney Will")], and [Attorney Will entered her appearance on August 14, 2017.

On February 20, 2018, [Appellant] entered a guilty plea to three counts of [sexual abuse of children - dissemination of photographs, videotapes, computer depictions, and files, ten] counts of [sexual abuse of children - child pornography], and one count of criminal use of [ ] communication facility. [Appellant] acknowledged in his written colloquy that he understood the trial [court] ultimately holds sole discretion in sentencing and is not bound by any plea agreement [unless] accepted by [the trial] court. [Appellant] stated on the record during his guilty plea hearing that he read, understood, and completed the written colloquy with the help and advice of [Attorney Will].

On August 30, 2018, [the trial] court sentenced [Appellant] to two to four years’ incarceration for each count of [sexual abuse of children - dissemination of photographs, videotapes, computer depictions, and files], and one to two years’ incarceration for each of four counts of [sexual abuse of children - child pornography], with each sentence to be served consecutively creating an aggregate sentence of 10 to 20 years of incarceration. [The trial] court imposed no further sentence for [the remaining six] counts [of sexual abuse of children - child pornography] and one count of criminal use of [ ] communication facility[. The trial court] determined that the seriousness of the offenses warranted this lengthy period of incarceration, and noted that [Appellant] was previously afforded probationary treatment and county incarceration as an adult, and, despite that, still committed these offenses.

[Appellant] filed a post-sentence motion on August 31, 2018, wherein [Appellant] argued that [Attorney Will] and the Commonwealth "agreed upon a sentence of 11½ to 23 months of incarceration at the county level with all counts to be served concurrently," and [Appellant] was therefore "entitled to the benefit of his bargain." [The trial] court denied [Appellant's] post-sentence motion on [January 2, 2019.]

Trial Court Memorandum and Order, 3/17/21, at 1-3 (record citations, original footnotes, and extraneous capitalization omitted).

On January 4, 2019, Appellant appealed his August 30, 2018 judgment of sentence. On October 11, 2019, this Court affirmed Appellant's judgment of sentence finding that he waived his challenges to the discretionary aspects of his sentence for failure to include a Pa.R.A.P. 2119(f) statement in his appellate brief.² Commonwealth v. Boyer , 2019 WL 5095647, at *2 (Pa. Super. Oct. 11, 2019) (unpublished memorandum). Appellant did not file a petition for allowance of appeal with our Supreme Court. Therefore, Appellant's judgment of sentence became final on November 12, 2019.³ See 42 Pa.C.S.A. § 9545(b)(3) (stating, "[a] judgment becomes final at the conclusion of direct review, including discretionary review in the Supreme Court of the United States and the Supreme Court of Pennsylvania, or at the expiration of the time for seeking the review"); see also Pa.R.A.P. 903(a) (requiring a notice of appeal to be filed within 30 days after entry of an order from which an appeal is taken).

On March 30, 2020, Appellant filed pro se a PCRA petition, his first. PCRA counsel was appointed, and counsel subsequently filed an amended PCRA petition on July 24, 2020. The PCRA court conducted an evidentiary hearing on November 5, 2020, and subsequently denied Appellant's petition on March 17, 2021. This appeal followed.⁴

Appellant raises the following issues for our review:

[1.] Whether the [PCRA] court erred in denying [Appellant's] amended [PCRA] petition [when it] determine[ed] that [Appellant] entered his guilty plea "knowingly and intelligently" [and that] upon entry of his plea and prior to sentencing, [Appellant] believed an agreement determined the length of his sentence and not that the [trial] court retained ultimate authority and discretion to issue a sentence?

[2.] Whether the [PCRA] court erred in denying [Appellant's] amended [PCRA] petition [alleging] a claim for ineffective assistance of counsel when trial counsel provided erroneous advice regarding [Appellant's] guilty plea which caused [Appellant] to enter an involuntary [and] unknowing plea?

[3.] Whether the [PCRA] court erred in denying [Appellant's] amended [PCRA] petition [alleging] a claim of ineffective assistance of counsel when trial counsel failed to present the alleged plea agreement to the trial court at the time of [Appellant's] guilty plea hearing which prejudiced [Appellant]?

[4.] Whether the [PCRA] court erred in denying [Appellant's] amended [PCRA] petition [alleging] a claim for ineffective assistance of counsel when trial counsel failed to file a motion to withdraw [Appellant's] guilty plea following sentencing?

Appellant's Brief at 4 (extraneous capitalization omitted).⁵

With respect to Appellant's first issue – that he did not enter his guilty plea knowingly and intelligently because he believed the length of his sentence had been agreed upon, as part of his guilty plea agreement, and that the trial court did not have the authority to alter the terms of the agreement – we find this issue waived. Pursuant to Section 9543 of the PCRA, a petitioner is eligible for collateral relief if, inter alia , "the allegation of error has not been previously litigated or waived." 42 Pa.C.S.A. § 9543(a)(3). An issue has been waived, for purposes of the PCRA, "if the petitioner could have raised it but failed to do so before trial, at trial, during unitary review, on appeal[,] or in a prior state postconviction proceeding." 42 Pa.C.S.A. § 9544(b). Here, Appellant failed to raise his claim regarding his guilty plea before the trial court, via a motion to withdraw his guilty plea or a post-sentence motion, or during direct appeal. As such, Appellant waived this issue, and no Pennsylvania court could address it in the context of collateral review. 42 Pa.C.S.A. §§ 9543(a)(3) and 9544(b).

Appellant's remaining three issues collectively raise a claim of ineffective assistance of trial counsel. Appellant's Brief at 9-13. In addressing Appellant's issues, we are mindful of our well-settled standard and scope of review of a PCRA court's dismissal of a PCRA petition. Proper appellate review of a PCRA court's dismissal of a petition is limited to the examination of "whether the PCRA court's determination is supported by the record and free of legal error." Commonwealth v. Miller , 102 A.3d 988, 992 (Pa. Super. 2014) (citation omitted). "The PCRA court's findings will not be disturbed unless there is no support for the findings in the certified record." Commonwealth v. Lawson , 90 A.3d 1, 4 (Pa. Super. 2014) (citations omitted). "This Court grants great deference to the findings of the PCRA court, and we will not disturb those findings merely because the record could support a contrary holding." Commonwealth v. Hickman , 799 A.2d 136, 140 (Pa. Super. 2002) (citation omitted). In contrast, we review the PCRA court's legal conclusions de novo. Commonwealth v. Henkel , 90 A.3d 16, 20 (Pa. Super. 2014) (en banc ), appeal denied , 101 A.3d 785 (Pa. 2014).

"It is well-established that counsel is presumed effective, and to rebut that presumption, the PCRA petitioner must demonstrate that counsel's performance was deficient and that such deficiency prejudiced him." Commonwealth v. Koehler , 36 A.3d 121, 132 (Pa. 2012), citing Strickland v. Washington , 466 U.S. 668, 687-691 (1984). In order to plead and prove a claim of ineffective assistance of counsel, "a petitioner must establish: (1) that the underlying issue has arguable merit; (2) counsel's actions lacked an objective reasonable basis; and (3) actual prejudice resulted from counsel's act or failure to act." Commonwealth v. Stewart , 84 A.3d 701, 706 (Pa. Super. 2013) (en banc ), appeal denied , 93 A.3d 463 (Pa. 2014). "A claim of ineffectiveness will be denied if the petitioner's evidence fails to meet any of these prongs." Commonwealth v. Martin , 5 A.3d 177, 183 (Pa. 2010).

Allegations 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. Where the defendant enters his plea on the advice of counsel, the voluntariness of the plea depends on whether counsel's advice was within the range of competence demanded of attorneys in criminal cases.

Commonwealth v. Barndt , 74 A.3d 185, 192 (Pa. Super. 2013). "Central to the question of whether [a] defendant's plea was entered...