J-S32040-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                      v.

PRINCE DAVIS

                           Appellant                   No. 636 EDA 2016


                 Appeal from the PCRA Order February 5, 2016
     in the Court of Common Pleas of Philadelphia County Criminal Division
                       at No(s):CP-51-CR-0000430-2010

BEFORE: GANTMAN, P.J., STABILE, and FITZGERALD* JJ.

MEMORANDUM BY FITZGERALD, J.:                           FILED JUNE 07, 2017

        Appellant, Prince Davis, appeals from an order denying his first Post

Conviction Relief Act1 (“PCRA”) petition. Appellant claims guilty plea counsel

was ineffective for allowing him to enter his guilty plea without explaining

the elements of the offenses and nature of the charges against him.          We

affirm.

        At approximately 11:30 p.m. on June 28, 2009, Appellant shot Mr.

Wilson on the 2600 block of South Muhlfield Street in Philadelphia.       When

police responded to the scene, they found Mr. Wilson with a gunshot wound

to the head. He died shortly thereafter. N.T. Guilty Plea Hr’g, 3/4/13, at

16-17. On July 15, 2009, SEPTA police arrested Appellant for jumping over


*
    Former Justice specially assigned to the Superior Court.
1
    42 Pa.C.S. §§ 9541-9546.
J-S32040-17


the turnstile at a subway station. An officer searched Appellant and found a

.380 caliber semiautomatic firearm.       Forensic testing demonstrated that

Appellant’s firearm fired the bullet recovered from Wilson’s body.            In

addition, two witnesses, Addo Tilmond and Austin Sneh, stated that

Appellant told them he shot and killed Wilson. Thereafter, Appellant signed a

confession. Id. at 18-19.

        On March 4, 2013, following his completion of two written guilty plea

colloquy forms and an oral colloquy by his counsel, Appellant entered a

negotiated    plea   agreement   to   third-degree   murder,2   a   charge    the

Commonwealth reduced from first-degree murder, and firearms violations.3

The trial court accepted Appellant’s plea and sentenced him to the

negotiated sentence of twenty to forty years’ imprisonment for third-degree

murder and consecutive one-and-one-half to five year sentences for both

firearms convictions. Id. at 26-32. Appellant did not file a direct appeal.

        On February 24, 2014, Appellant filed a pro se PCRA petition.         On

March 16, 2015, through counsel, Appellant filed an amended PCRA petition

claiming that prior counsel was ineffective for failing to object during his

guilty plea hearing to the trial court’s failure to state the elements of the

charges and the range of sentence for each offense on the record.



2
    18 Pa.C.S. § 2502(c).
3
    18 Pa.C.S. §§ 6106, 6108.



                                      -2-
J-S32040-17


        On January 7, 2016, the court issued a Pa.R.Crim.P. 907 notice of

intent to dismiss the amended PCRA petition without a hearing in twenty

days.    On February 5, 2016, the court entered an order dismissing the

amended PCRA petition. Appellant timely appealed, and both Appellant and

the PCRA court complied with Pa.R.A.P. 1925.

        Appellant raises one issue in this appeal:

           Whether the PCRA court violated [Pa.R.Crim.P. 907(1)] by
           summarily dismissing [A]ppellant’s PCRA petition without
           [an] evidentiary hearing, where there was a genuine issue
           of material fact as to whether [A]ppellant was informed by
           his guilty plea hearing attorney of the elements and nature
           of the charges against him and the permissible ranges of
           sentences and/or fines for the offenses charged, in light of
           their omission on the record, so as to preclude [Appellant]
           from having made a knowing, intelligent and voluntary
           plea?

Appellant’s Brief at 5.

        “On appeal from the denial of PCRA relief, our standard and scope of

review is limited to determining whether the PCRA court’s findings are

supported by the record and without legal error.” Commonwealth v. Abu-

Jamal, 941 A.2d 1263, 1267 (Pa. 2008) (citation omitted). When a PCRA

petitioner alleges ineffective assistance of counsel, counsel is presumed to

have provided effective representation unless the petitioner pleads and

proves that: (1) the underlying claim is of arguable merit; (2) counsel had

no reasonable basis for his or her conduct; and (3) the petitioner was

prejudiced by counsel’s action or omission. Commonwealth v. Spotz, 84

A.3d 294, 311 (Pa. 2014). A claim of ineffective assistance of counsel will


                                       -3-
J-S32040-17


fail   if   the   petitioner   does   not   meet   any   of   the   three   prongs.

Commonwealth v. Simpson, 66 A.3d 253, 260 (Pa. 2013). “The burden

of proving ineffectiveness rests with [a]ppellant.”           Commonwealth v.

Rega, 933 A.2d 997, 1018 (Pa. 2007) (citation omitted).

        To prove ineffective assistance of defense counsel during guilty plea

proceedings,

            the defendant must show that counsel’s deficient
            stewardship resulted in a manifest injustice, for example,
            by facilitating entry of an unknowing, involuntary, or
            unintelligent plea. See, e.g., [Commonwealth v. Allen,
            732 A.2d 582, 587 (Pa. 1999)] (“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. Flanagan, 854 A.2d 489, 502 (Pa. 2004) (some

citations omitted).     This standard is equivalent to the “manifest injustice”

standard applicable to all post-sentence motions to withdraw a guilty plea.

Id.

        Appellant contends that guilty plea counsel was ineffective for failing to

object to the trial court’s failure to define the elements of Appellant’s crimes

on the record or the permissible range of sentences for each offense. A valid

guilty plea colloquy must delve into six areas: (1) the nature of the charges,

(2) the factual basis for the plea, (3) the right to a jury trial, (4) the

presumption of innocence, (5) the maximum sentencing ranges, and (6) the

plea court’s power to deviate from any recommended sentence.                   See



                                        -4-
J-S32040-17


Comment, Pa.R.Crim.P. 590(A)(2); Flanagan, 854 A.2d at 500.             A guilty

plea must be knowing, voluntary and intelligent in order to be constitutional.

See Henderson v. Morgan, 426 U.S. 637, 644-45 (1976).

      The failure to mention an element of the charged offense during a

guilty plea colloquy does not automatically invalidate the plea. The United

States Supreme Court has instructed that

         [i]nstead of testing the voluntariness of a plea by
         determining whether a ritualistic litany of the formal legal
         elements of an offense was read to the defendant, . . . the
         court should examine the totality of the circumstances and
         determine whether the substance of the charge, as
         opposed to its technical elements, was conveyed to the
         accused.

Id., 426 U.S. at 644.

      Pennsylvania courts have repeatedly followed the same principle.       In

Commonwealth v. Shaffer, 446 A.2d 591 (Pa. 1982), our Supreme Court

cited Henderson’s presumption and observed: “So also may we presume

that, absent an assertion that appellant did not understand the nature of the

crimes, counsel explained the nature of the offense in sufficient detail to give

him notice of that which he admits by entering a plea of guilty.” Shaffer,

446 A.2d at 595. Shaffer noted with approval Henderson’s directive that

“the validity of a plea may be determined from the ‘totality of the

circumstances’ attendant upon the entry of the plea.”               Id. (citing

Henderson, 426 U.S. at 644). Justice McDermott concurred, commenting

that attacks on guilty plea colloquies are “all too often . . . used to disguise



                                     -5-
J-S32040-17


with legalistic formalism, what is, in essence, an attempt to obtain a new

trial as relief from the sting of a jail sentence.” Shaffer, 446 A.2d at 598

n.1.

       In Commonwealth v. Gardner, 452 A.2d 1346 (Pa. 1982), a PCHA

decision entered shortly after Shaffer, the defendant contended that

counsel was ineffective for permitting him to enter a guilty plea when the

trial court neglected to inform him of his right to participate in jury selection.

Gardner, 452 A.2d at 1346-47. Our Supreme Court examined not only the

oral and written plea colloquy, but also the off-the-record communications

between the defendant and counsel, to determine whether the defendant

was informed of this right prior to his guilty plea.        Id. at 1347.      The

defendant had not been so informed on the record, but at the evidentiary

hearing on the PCHA petition, trial counsel explained that he had not

objected to the guilty plea colloquy because, prior to the colloquy, he had

twice informed the defendant of the right not mentioned by the trial court on

the record.   Id.   Based on this record, the Supreme Court held that trial

counsel did not provide ineffective assistance and affirmed the denial of

PCHA relief. Id. Gardner makes clear that evidence other than the record

of the actual plea colloquy, such as off-the-record communications between




                                      -6-
J-S32040-17


attorney and client, can be relevant to the question of whether the

defendant voluntarily, knowingly, and intelligently entered his guilty plea.4

      It also is crucial to observe that the defendant “has a duty to answer

questions truthfully” when pleading guilty. Commonwealth v. Blackwell,

647 A.2d 915, 924 n.15 (Pa. Super. 1994), abrogation on other grounds

recognized, Commonwealth v. Taylor, 65 A.3d 462, 467 n.4 (Pa. Super.

2013). The defendant is bound by his statements during a plea colloquy and

cannot seek to withdraw the plea on grounds that contradict his statements

during the plea.   See Commonwealth v. McCauley, 797 A.2d 920, 922

(Pa. Super. 2001) (citation omitted). Omissions in the oral colloquy may be

4
  See also Commonwealth v. Fears, 836 A.2d 52, 64 (Pa. 2003) (citation
omitted) (to determine voluntariness of guilty plea, “trial court may consider
a wide array of relevant evidence under this standard including, but not
limited   to,    transcripts   from    other   proceedings,      off-the-record
communications      with    counsel,   and    written    plea    agreements”);
Commonwealth v. Schultz, 477 A.2d 1328, 1329-30 (Pa. 1984)
(defendant could not withdraw guilty plea for robbery despite trial court’s
failure to inform him during his guilty plea colloquy that theft was an
element of robbery, where defendant was aware of the nature of the charges
based on “overwhelming” evidence outlined during guilty plea colloquy as
well as fact that he had three prior robbery convictions); Commonwealth
v. Martinez, 453 A.2d 940, 942-43 (Pa. 1982) (where defendant pled guilty
to third degree murder and robbery, but there was “no recitation of the
elements of the crimes” during the guilty plea colloquy, plea was voluntary
and knowing because defendant was aware of nature of charges based on
extensive evidence of guilt presented during the plea colloquy);
Commonwealth v. Yager, 685 A.2d 1000, 1004-05 (Pa. Super. 1996)
(although guilty plea colloquy did not inform defendant of possibility of
consecutive sentences, totality of circumstances surrounding the plea
demonstrated that defendant fully understood nature and consequences of
his plea; defendant signed written guilty plea acknowledging that he
discussed possible range of sentences with counsel, and counsel testified
that he advised defendant of likelihood of consecutive sentences).



                                     -7-
J-S32040-17


obviated by a written one signed by the defendant that states his awareness

of the requirements.   See Commonwealth v. Anthony, 475 A.2d 1303,

1306-07 (Pa. 1984).

      Here, the record belies Appellant’s accusations that guilty plea counsel

failed to inform him about the elements of his crimes or the permissible

range of each sentence. Appellant signed two written colloquy forms which

confirmed that he was informed about the elements of each offense and

possible range of sentences. The first form stated that his attorney informed

him of the elements of the crimes as well as his maximum sentence of fifty-

two years and penalties.      In the second form, Appellant affirmed that he

“underst[oo]d the natures of the charges to which [he was] pleading guilty”

and “[was] aware of the permissible range of sentences and/or fines for the

offense(s) with which [he was] charged.”     Appellant also affirmed that he

“knowingly, voluntarily, and intelligently ma[d]e this plea of Guilty.”

Appellant is bound by his statements in the written colloquies, see

McCauley, 797 A.2d at 922, and they obviate the omission of this

information from Appellant’s oral guilty plea colloquy. In short, the “totality

of the circumstances” establishes that guilty plea counsel informed Appellant

of the elements of the offenses and permissible range of each sentence.

Shaffer, 446 A.2d at 595.

      For these reasons, the PCRA court correctly denied Appellant’s PCRA

petition without a hearing.



                                     -8-
J-S32040-17


     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/7/2017




                          -9-
