J-S15016-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ALAN TROY HOUSER                           :
                                               :
                       Appellant               :   No. 1122 WDA 2019

               Appeal from the PCRA Order Entered July 3, 2019
    In the Court of Common Pleas of Westmoreland County Criminal Division
                      at No(s): CP-65-CR-0004317-2014


BEFORE:      BENDER, P.J.E., OLSON, J., and STEVENS, P.J.E.*

MEMORANDUM BY OLSON, J.:                                 FILED APRIL 28, 2020

        Appellant, Alan Troy Houser, appeals from the July 3, 2019 order

dismissing 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:

        The instant case arises out of an investigation of [Appellant] for
        attempting to coerce a witness not to testify during at least one
        three-way call with [Appellant] and another individual while he
        was incarcerated at the Westmoreland County Prison. As a result,
        [Appellant] was charged on September 1, 2014, with [criminal]
        conspiracy to hinder apprehension or prosecution by destroying
        evidence or tampering with a witness, in violation of 18 Pa.C.S.A.
        § 903[,] and hindering apprehension or prosecution by
        [concealing or] destroying evidence or tampering with a witness,
        in violation of 18 Pa.C.S.A. § 5105(a)(3). A preliminary hearing
        was scheduled before Magisterial District Judge Frank J. Pallone,
        Jr. on September 25, 2014, and all charges were waived for court.
____________________________________________


*   Former Justice specially assigned to the Superior Court.
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       On June 2, 2015, [Appellant], represented by []Emily Smarto,
       [Esq. (“Attorney Smarto”)] proceeded to a jury trial before [the
       trial] court. Prior to the trial beginning, [Appellant] entered a
       general guilty plea to the above-referenced charges, and
       sentencing was deferred pending a pre-sentence investigation
       [report]. On August 28, 2015, [Appellant] was sentenced as
       follows: At count one, [Appellant] was sentenced to 21 to 42
       months[’] incarceration. At count two, [Appellant] was sentenced
       to 21 to 42 months[’] incarceration consecutive to count one. This
       sentence was also to run consecutively to the sentence imposed
       at case number 3802 C 2013.[1]

       On []May 9, 2016, [Appellant] filed a timely (1) pro se [PCRA
       petition] via a form petition and (2) [pro se] petition to request
       an evidentiary hearing raising additional issues. []Brian Aston[,
       Esq. (“Attorney Aston”)] was appointed to represent [Appellant].
       On []July 28, 2016, Attorney Aston filed a no-merit letter pursuant
       to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and
       Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988)
       addressing the issue(s) raised in the [PCRA] petition. [On August
       31, 2016, Appellant filed pro se a response in opposition to
       Attorney Aston’s no-merit letter.] On April [17], 2017, [the PCRA]
       court ordered Attorney Aston to file a supplemental
       Turner-Finley no-merit letter addressing the additional issues
       that [Appellant] raised in his [pro se] petition to request an
       evidentiary hearing. On April 26, 2017, Attorney Aston filed a
       supplemental Turner-Finley no-merit letter. [On May 8, 2017,
       Appellant filed pro se a response to Attorney Aston’s supplemental
       no-merit letter.] The [PCRA] court issued a notice of intent to
       dismiss[, pursuant to Pa.R.Crim.P. 907,] on May 9, 2017[,]
       wherein [Appellant] was directed to file a written response to the
       defects enumerated in that notice.          On []May 18, 2017,
       [Appellant] filed a [pro se] response to the [PCRA] court's notice
       of intent to dismiss, and the [PCRA] court scheduled an
       evidentiary hearing to address [Appellant’s] response.          On
       []November 30, 2017, Attorney Aston was permitted to withdraw
       as PCRA counsel, and [Appellant] was informed that he could
       retain private counsel or proceed pro se. [Appellant] elected to
       proceed pro se. On September 20, 2018, an evidentiary hearing
       was conducted before [the PCRA] court. During the hearing,
____________________________________________


1The record indicates Appellant was sentenced to 11 to 22 years’ incarceration
after a jury convicted him of aggravated assault, 18 Pa.C.S.A. § 2702(a)(1),
at docket number 3802 C 2013.

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     Attorney Smarto, who is licensed to practice law in the
     Commonwealth of Pennsylvania, testified relative to her
     representation of [Appellant].

     When questioned by [Appellant] on direct-examination regarding
     the issue of [whether] a plea of guilty [was] unlawfully induced,
     Attorney Smarto testified to the following:

        I can tell you point blank that I have never told any
        defendant, and I can try to recollect our conversation at that
        time, but I can tell you as a course of practice over 28 years,
        I have never told a client to expect getting, a concurrent
        sentence on a general plea. That's clear. You can never tell
        a client what the judge is going to do.

     (N.T.[, 8/20/18,] at 54).

     Further, Attorney Smarto testified:

        ... I indicated to you [(Appellant)] that I believed the judge
        understood that you were taking this plea to benefit your
        sister in some way. But you were taking the plea knowing
        full well you were doing it knowing what was involved, what
        kind of time you were facing. You were fully advised of the
        parameters of the plea, and you accepted it, and you did a
        general plea.

     ([Id.] at 55).

     At the conclusion of the hearing, the [PCRA] court ordered the
     parties to submit briefs in support of their respective positions. In
     [Appellant’s pro se] brief in support of evidentiary hearing,
     [Appellant] alleges that Attorney Smarto was ineffective for the
     following reasons:

     1. Failing to investigate the Westmoreland County Prison's
     procedure for releasing inmate telephone records;

     2. Failing to investigate the chain of custody in obtaining the
     telephone records;

     3. Failing to investigate the lawful obtaining of the telephone
     records;

     4. Failing to file timely pre-trial motions;

     5. Failing to raise an issue [of] prosecutorial misconduct by
     Assistant District Attorney Peter Glenn Flanigan; and

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       6. Unlawful inducement during plea consideration.

PCRA Court Opinion, 7/3/19, at 1-2 (extraneous capitalization, footnote, and

some record citations omitted). The Commonwealth filed a response on June

11, 2019.     On July 3, 2019, the PCRA court dismissed Appellant’s PCRA

petition. This appeal followed.2

       Appellant raises fourteen issues in his pro se statement of questions

presented. Appellant’s Brief at 4-6. Appellant’s claims, when reduced to their

essence, center entirely upon claims of ineffective assistance of trial counsel,

ineffective assistance of plea counsel, and PCRA court error in denying his

PCRA petition, his petition for in forma pauperis status, and his motion for

disclosure of information.       See generally id. at 4-6 and 18-60.    We find

Appellant’s twelfth issue, which can be summarized as a claim of ineffective

assistance of plea counsel for unlawfully inducing Appellant to plead guilty, to

be dispositive of this case. Id. at 5 and 46-48; see also Commonwealth v.

Lynch, 820 A.2d 728, 731 (Pa. Super. 2003) (holding, claim of unlawfully

induced guilty plea will be reviewed as ineffective assistance of counsel claim),

appeal denied, 835 A.2d 709 (Pa. 2003).

       Proper appellate review of a PCRA court’s dismissal of a PCRA 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,
____________________________________________


2  On July 29, 2019, the PCRA court ordered Appellant to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b)
within 21 days. Appellant timely complied. The PCRA court subsequently filed
its Rule 1925(a) opinion.

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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).

      To be eligible for relief based on a claim of ineffective assistance
      of counsel, a PCRA petitioner must demonstrate, by a
      preponderance of the evidence, that (1) the underlying claim is of
      arguable merit; (2) no reasonable basis existed for counsel’s
      action or omission; and (3) there is a reasonable probability that
      the result of the proceeding would have been different absent such
      error. Commonwealth v. Steele, 961 A.2d 786, 796 (Pa. 2008).

Commonwealth v. Matias, 63 A.3d 807, 810 (Pa. Super. 2013), appeal

denied, 74 A.3d 1030 (Pa. 2013). “The failure to satisfy any one of the prongs

requires rejection of the petitioner's claim.” Commonwealth v. Williams,

141 A.3d 440, 454 (Pa. 2016) (citation omitted). “[T]he law presumes that

counsel was effective and the burden of proving that this presumption is false

rests with the petitioner.”   Commonwealth v. Cox, 983 A.3d 666, 678

(Pa. 2009) (citation omitted). “Whether prejudice resulted from the entry of

the guilty plea is not measured by the severity or leniency of the sentence



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imposed; prejudice inheres when an accused pleads guilty, thus convicting

himself of a criminal offense, without understanding the significance or

consequences of his action.” Commonwealth v. Zuber, 353 A.2d 441, 445

(Pa. 1976) (citation, original quotation marks, and emphasis omitted).

      “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.” Hickman, 799 A.2d

at 141 (citation omitted). “Once the defendant has entered a guilty plea, it is

presumed that he was aware of what he was doing, and the burden of proving

involuntariness is upon him.” Commonwealth v. Willis, 68 A.3d 997, 1002

(Pa. Super. 2013) (citation omitted).      The totality of the circumstances

surrounding a guilty plea must be examined to determine if the guilty plea

was entered voluntarily, knowingly, and intelligently.    Commonwealth v.

Allen, 732 A.2d 582, 589 (Pa. 1999).

      Here, Appellant argues that Attorney Smarto was ineffective for

misrepresenting, as part of his plea agreement, that he would receive

concurrent sentences if he pleaded guilty. Appellant’s Brief at 47. Appellant

contends that Attorney Smarto advised him “that the only way he would

receive a concurrent sentence was to put it in the judge[’]s hands” and plead

guilty. Id. Appellant avers that Attorney Smarto’s “proposal gave [him] the

‘reason to believe’ he would receive the demanded concurrent sentences” and,

but for receiving concurrent sentences, he would have gone to trial. Id. at

48.

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      After an evidentiary hearing, the PCRA court, finding Appellant’s claim

was without merit, stated,

      the [PCRA] court finds that [Attorney Smarto] completed and
      reviewed a guilty plea petition with [Appellant]. Through the
      guilty plea petition, [Appellant] indicated that he was not required
      to plead guilty to anything and had the absolute right to go to
      trial - and he was in fact in the process of picking a jury. [The
      sentencing] court also conducted a verbal colloquy on the record
      to ensure that [Appellant’s] general plea was entered knowingly,
      intelligently, and voluntarily.      Nothing in the record or in
      [Appellant’s] submission demonstrated anything to the contrary.

      During the guilty plea hearing, [Appellant] testified that he was
      pleading guilty and he explicitly acknowledged that there was no
      agreement in this matter and his sentence would be decided by
      the [sentencing] court. When asked whether any promises or
      threats were made in exchange for his guilty plea, [Appellant]
      responded negatively. When asked why he was pleading guilty,
      [Appellant] replied that he did so because it was in his best
      interest to do so. Further, [Appellant] indicated that he was
      satisfied by [Attorney Smarto’s] representation of him. During
      the September 20, 2018 evidentiary hearing, Attorney Smarto
      testified that she has never told a client to expect to get a
      concurrent sentence on a general plea. The [PCRA] court finds
      the testimony of Attorney Smarto at the September 20, 2018[]
      evidentiary hearing to be credible and consistent with prior
      testimony. As [Appellant] entered a knowing, intelligent, and
      voluntary general plea, it was within [the sentencing] court's
      discretion to render a [consecutive] sentence. [Appellant's] own
      testimony revealed that he was fully aware that by entering a
      general plea, the [sentencing] court had discretion to impose a
      [consecutive] sentence.

PCRA Court Opinion, 7/3/19, at 6-7 (extraneous capitalization and record

citations omitted).

      The record demonstrates that in signing his written guilty plea petition,

Appellant agreed the sentencing court would decide what sentence to impose



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and that his sentences could run consecutively.        Appellant’s Guilty Plea

Petition, 6/2/15, at 2-3. Appellant understood the plea agreement called for

Appellant to enter a general plea of guilty. Id. at 3. During plea discussions,

Attorney Smarto stated, “And just to be clear, [Appellant] entering his general

plea, he was very clear with me that he was concerned that his sister would

not be confined[.3]” N.T., 6/2/15, at 103. In announcing the plea agreement,

the Commonwealth stated, “the Commonwealth has agreed to recommend

that any sentence imposed against [Appellant’s sister] is a non-confinement

sentence, and that’s also a motivating factor in [Appellant’s] decision to plead

[guilty] as well, although there’s no other agreement in any other respects

relative to either party.” Id. at 108.

       During Appellant’s oral plea colloquy, Appellant agreed, “there [was] no

agreement that [his] attorney [was] able to reach with the Commonwealth

that [he was] willing to accept as far as sentencing.” Id. at 114. Appellant

understood the sentencing court would decide his sentence, and he answered

in the negative when asked if any threats or promises were made in exchange

for his guilty plea. Id. At the conclusion of the oral colloquy, when asked if

Appellant had any questions for the sentencing court or his attorney, Attorney




____________________________________________


3 Appellant’s sister, Bridget Houser, was charged with criminal conspiracy to
hinder apprehension or prosecution by destroying evidence or tampering with
a witness and hindering apprehension or prosecution by concealing or
destroying evidence or tampering with a witness at trial court docket number
4325 C 2014. 18 Pa.C.S.A. §§ 903 and 5105(a)(3), respectively.

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Smarto answered that the only question Appellant posed to her was a request

that he remain at the county correctional facility until sentencing. Id. at 115.

      Prior      to   sentencing,   the    Commonwealth,       in   providing    its

recommendation on sentencing, stated, “[t]he Commonwealth from day one

has always offered these charges consecutive[.]” N.T., 8/28/15, at 3 and 9.

Attorney Smarto, in requesting leniency in sentencing, asked that the

sentences be imposed concurrently. Id. at 11. Before the sentencing court

imposed its sentence, Appellant was asked if he had anything he wished to

say, to which he replied, “No.” Id.

      At   his    PCRA    evidentiary   hearing,   Appellant   asserted   that   his

understanding of the plea agreement, based upon alleged conversations with

Attorney Smarto prior to his pleading guilty, was that the sentencing court

was “going to most likely run [his] sentence[s] concurrent” because he was

pleading guilty to reduce his sister’s sentence.          N.T., 11/30/17, at 14

(emphasis added).        Appellant alleged that Attorney Smarto “[b]asically

guarantee[d]” that the sentences were going to run concurrently.                 Id.

Appellant later admitted that Attorney Smarto did not guarantee concurrent

sentences. N.T., 3/19/18, at 23. Attorney Smarto stated that in over 28 years

of practice she never promised a defendant that he would get a concurrent

sentence upon entering a general guilty plea. N.T., 9/20/18, at 54.

      While Appellant hoped the sentencing court would be lenient towards

him and would impose concurrent sentences because he was pleading guilty

in order to help reduce his sister’s sentence, Appellant acknowledged, and the

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record supports, that Attorney Smarto did not guarantee him concurrent

sentences. Appellant made no effort at the time he entered his guilty plea or

prior to sentencing to assert that Attorney Smarto promised him concurrent

sentences as an inducement to pleading guilty. Appellant is bound by the

statements he made in open court, under oath, at the time he entered his

guilty plea, and he cannot assert later that he lied under oath, even if he avers

that counsel induced the lies. Commonwealth v. Pollard, 832 A.2d 517,

523 (Pa. Super. 2003).

       Based upon the record before us, Appellant failed to demonstrate that

Attorney Smarto induced his guilty plea with false promises of a concurrent

sentence or that his guilty plea was not knowing, intelligent, and voluntary.

Therefore, we concur with the PCRA court that Appellant’s ineffectiveness

claim was without merit.

       “A plea of guilty constitutes a waiver of all nonjurisdictional defects and

defenses. When a defendant pleads guilty, he waives the right to challenge

anything but the legality of his sentence and the validity of his plea.”

Commonwealth           v.   Jones,     929     A.2d   205,   212   (Pa. 2007),   citing

Commonwealth v. Montgomery, 401 A.2d 319 (Pa. 1979). As a result of

Appellant entering a knowing, intelligent, and voluntary guilty plea, he waived

his remaining issues.4

____________________________________________


4 In his sixth issue, Appellant claims the PCRA court erred in failing to grant
his in forma pauperis petition and his motion to disclose. Appellant’s Brief at



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       Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/28/2020




____________________________________________


35-36. As noted by the PCRA court, it is unclear what motion to disclose
Appellant references, however, a review of Appellant’s Brief, handwritten with
exceptional penmanship, reveals that Appellant claims the PCRA court
allegedly failed to grant him in forma pauperis status, thereby, hindering his
ability to present claims at the PCRA evidentiary hearing. Id.; see also PCRA
Court Opinion, 8/28/19, at 2. Specifically, Appellant alleges that without in
forma pauperis status he was unable to subpoena parties to testify at the
PCRA evidentiary hearing. Appellant’s Brief at 35. A review of the record
demonstrates that the PCRA court ordered Attorney Smarto and Appellant’s
sister’s attorney, Patricia Elliot, Esq., the parties Appellant sought to
subpoena, to appear at the PCRA evidentiary hearing in order to avoid the
necessity to subpoena witnesses. PCRA Court Order, 3/19/18. Therefore, we
find Appellant’s issue to be moot.

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