J-S42035-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    CLIFFORD N. JONES                          :
                                               :
                       Appellant               :   No. 3696 EDA 2017

                 Appeal from the PCRA Order February 28, 2017
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-0008508-2008


BEFORE:      OTT, J., KUNSELMAN, J., and COLINS*, J.

MEMORANDUM BY COLINS, J.:                                FILED AUGUST 29, 2019

       Appellant,    Clifford   N.   Jones,    appeals   from   the   order   entered

February 28, 2017, dismissing his petition filed under the Post Conviction

Relief Act (“PCRA”)1 without a hearing. We affirm.

       This Court previously set forth the relevant facts and procedural history

of this case in its decision for Appellant’s direct appeal “from [his] judgment

of sentence entered following his convictions of involuntary deviate sexual

intercourse, unlawful contact with a minor, endangering the welfare of

children, corruption of minors and assault. 18 Pa.C.S.A. §§ 3123, 6318, 4304,

6301 and 2701, respectively.”          Commonwealth v. Jones, No. 1551 EDA




____________________________________________


1   42 Pa.C.S. §§ 9541–9546.


*    Retired Senior Judge assigned to the Superior Court.
J-S42035-19


2009, unpublished memorandum at 1 (Pa. Super. filed August 6, 2010) (some

formatting). For the convenience of the reader, we note:

      On May 14, 2008, then ten year old Complainant, S.R., resided
      with her mother, brother and sister and Jones, her mother’s
      boyfriend, who Complainant called ‘Pop-Pop.’ On that date, upon
      returning home from school, Complainant entered the bedroom
      her mother shared with Jones when she saw Jones rubbing baby
      oil on his penis. Jones grabbed Complainant by the arm, forced
      her to bend over a computer chair, and he placed his penis inside
      her rectum. When Complainant’s siblings yelled for her Jones
      stopped his assault whereupon Complainant escaped and Jones
      left the house. Complainants’ brother asked her what was wrong
      at which time she reported him and revealed that Jones had anal
      sex with her for three years. When Complainant’s mother
      returned home the children reported the assault to her. A rectal
      and vaginal swab was performed on Complainant and found
      positive for the presence of semen. Complainant related that over
      the three year period of Jones’s sexual assaults, he would threaten
      to hit her if she reported the incidents but that he typically gave
      her money. Complainant and her mother related that they
      believed Jones to be HIV positive. Jones fled the jurisdiction and
      was subsequently extradited from Baltimore, Maryland. A DNA
      sample was taken from Jones and was compared to the samples
      taken from Complainant and found to be a positive match. . . .

      Prior to trial, Jones indicated that he wanted to plead guilty to the
      above-listed crimes. On December 18, 2008, the trial court
      engaged in a thorough oral colloquy about his desire to enter a
      guilty plea.

Id. at 1-2 (citation and internal brackets omitted). The relevant portion of

that oral colloquy consisted of the following:

      [THE COURT:] I understand you wish to plead guilty today
      pursuant to what’s called an open guilty plea, meaning that other
      than the charges to which you’re pleading guilty, there’s no
      agreement for an agreed upon recommendation for sentencing.
      Do you understand?

      [APPELLANT]:      Yes, ma’am. . . .




                                      -2-
J-S42035-19


     THE COURT:       Are you pleading guilty today of your own free
     will?

     [APPELLANT]:     Yes, ma’am.

     THE COURT:         Has anyone forced you or threatened you to
     plead guilty in any way?

     [APPELLANT]:     No, ma’am. . . .

     THE COURT:        Have you gone over this written guilty plea
     colloquy form with your attorney?

     [APPELLANT]:     Yes, ma’am.

     THE COURT:        You agree this document states what your rights
     are and the rights you’re giving up by pleading guilty today?

     [APPELLANT]:     Yes, ma’am.

     THE COURT:       Have you signed this document today in court
     of your own free will?

     [APPELLANT]:     Yes, ma’am. . . .

     THE COURT:       Have you ever been treated for a mental illness?

     [APPELLANT]:     Yes, ma’am.

     THE COURT:       Are you currently receiving mental health
     treatment?

     [APPELLANT]:     Yes, ma’am.

     THE COURT:       Are you currently taking psychiatric medication?

     [APPELLANT]:     Yes, ma’am.

     THE COURT:        Are you fully able today to understand why
     you’re here to discuss this case with your attorney and to make
     decisions about how to proceed?

     [APPELLANT]:     Yes, ma’am. . . .

     THE COURT:       Are you satisfied with your lawyer?

     [APPELLANT]:     Yes, ma’am.




                                    -3-
J-S42035-19


     THE COURT:       Has your lawyer explained to you the charges
     you’re pleading guilty along with the elements of those offenses
     and the maximum penalties that you face?

     [APPELLANT]:      Yes, ma’am.

     THE COURT:        Has he advised you that there’s a ten year
     mandatory sentence with regard to the charge of involuntary
     deviate sexual intercourse?

     [APPELLANT]:      Yes, ma’am.

     THE COURT:       And he also advised you of the maximum for
     that charge can be up to 40 years?

     [APPELLANT]:      Yes, ma’am. . . .

     THE COURT:        Do you wish to speak any further with your
     attorney privately before we proceed?

     [APPELLANT]:      No, ma’am.

N.T., 12/18/2018, at 4-8.

     Jones also filled out a written colloquy regarding the entry of the
     guilty plea. The trial court accepted Jones’s plea and postponed
     sentencing so that evaluation regarding whether Jones is a
     sexually violent predator (“SVP”) could be conducted.

     Prior to sentencing, Jones filed a motion seeking to withdraw his
     guilty plea. A hearing on this motion convened on April 3, 2009,
     at the conclusion of which the trial court denied Jones’s motion.
     Jones was subsequently found to be an SVP and the trial court
     sentenced him to an aggregate term of 23½ to 47 years of
     incarceration.

Jones, No. 1551 EDA 2009, at 2-3. On August 6, 2010, this Court affirmed

Appellant’s judgment of sentence. Id. at 1.

     “Appellant’s first [PCRA p]etition was filed on March 10, 2011.       On

May 3, 2012[,] the PCRA [p]etition was granted, and by agreement of the

Commonwealth Appellant’s right to file a Petition for Allocatur to the

Pennsylvania Supreme Court was reinstated.” PCRA Court Opinion, filed June

                                     -4-
J-S42035-19


25, 2018, at 1-2. On June 1, 2012, Appellant filed his petition for allowance

of appeal to the Supreme Court of Pennsylvania, which was denied on

March 1, 2013.

      On November 25, 2013, Appellant filed a timely, pro se PCRA petition,

and, on June 20, 2016, PCRA counsel filed an amended petition, alleging that

Appellant’s guilty plea was unlawfully induced and that his trial counsel was

ineffective for failing to investigate his case and his “health status” and for

coercing him to accept a guilty plea when he had advised trial counsel that he

did not want to do so.         Amended PCRA Petition, 6/20/2016, at 5-7

(unpaginated) §§ II.-III. On January 27, 2017, the Commonwealth filed a

motion to dismiss, and, on January 31, 2017, the PCRA court entered a notice

of intent to dismiss all claims without a hearing pursuant to Pa.R.Crim.P. 907

(“Rule 907 Notice”). On February 10, 2017, although he was still represented

by counsel, Appellant pro se filed objections to the Rule 907 Notice.          On

February 28, 2017, the PCRA court dismissed Appellant’s petition.

      On June 19, 2017[,] the [PCRA c]ourt received in chambers a
      Notice of Appeal Nunc Pro Tunc dated June 13, 2017 from
      Appellant claiming that PCRA counsel advised him that she was
      going to file an appeal, but she failed to do this. Appellant’s notice
      does not appear on the docket. PCRA counsel . . . followed with
      an Amended Petition under Post Conviction Relief Act setting forth
      her reasons for failing to file Appellant’s appeal from the
      February 28, 2017 dismissal of the PCRA Petition. Reasons for
      failure to file the appeal included counsel’s health issues and an
      over-burdened work schedule. On October 24, 2017[,] the
      Commonwealth agreed that Appellant’s appellate rights should be
      reinstated nun pro tunc effective November 14, 2017. This timely
      appeal followed on November 15, 2017.


                                      -5-
J-S42035-19


PCRA Court Opinion, filed June 25, 2018, at 2.2

       Appellant presents the following issues for our review:

       I.     Whether the PCRA court erred in denying [Appellant]’s PCRA
       [p]etition without an evidentiary hearing to determine whether
       [Appellant] entered a lawful guilty plea.

       II.   Whether the [PCRA] court erred in denying without an
       evidentiary hearing the PCRA petition alleging trial counsel was
       ineffective.

Appellant’s Brief at 8 (trial court’s answers omitted).

       “We review the denial of PCRA relief to decide whether the PCRA court’s

factual determinations are supported by the record and are free of legal error.”

Commonwealth v. Medina, 209 A.3d 992, 996 (Pa. Super. 2019) (quoting

Commonwealth v. Brown, 196 A.3d 130, 150 (Pa. 2018)).

       Appellant contends that “[t]he PCRA [c]ourt erred in denying [his] PCRA

[p]etition without an evidentiary hearing . . . to determine whether

[Appellant]'s guilty plea was [unlawfully] induced and whether counsel was

ineffective[,] . . . because it caused [Appellant] to enter an involuntary or

unknowing guilty plea.” Appellant’s Brief at 18-19, 21. Appellant argues that

his trial counsel failed to investigate his case or his mental health issues,



____________________________________________


2 Appellant filed his statement of errors complained of on appeal on
December 23, 2017. The PCRA court entered its opinion on June 25, 2018.
The PCRA court appointed new PCRA counsel for Appellant on September 14,
2018, and permission was granted for new counsel to file a supplemental
concise statement of errors, which PCRA counsel did on December 12, 2018.
The PCRA court entered a supplemental opinion on December 21, 2018.



                                           -6-
J-S42035-19


coerced him into pleading guilty, and never explained to him the implications

of his guilty plea. Id. at 21. Appellant urges this Court to conclude that “there

is a clear showing of actual prejudice as a result of counsel’s ineffectiveness[,]”

because, “[h]ad [Appellant] been able to try the matter, a jury may have

returned a verdict of not guilty.” Id. at 22.3

       To the extent that Appellant is arguing that his guilty plea was

involuntary, unknowingly entered, and unlawfully induced, this claim is

waived, because it could have been challenged as part of his direct appeal,

yet he failed to do so. See 42 Pa.C.S. § 9544(b) (“for purposes of [the PCRA],

an issue is waived 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.”).

       If, instead, Appellant’s issue is that his trial counsel was ineffective for

coercing him into pleading guilty, this challenge is belied by the record.

       [C]ounsel is presumed to be effective.

       To overcome this presumption, a PCRA petitioner must plead and
       prove that: (1) the underlying legal claim is of arguable merit;
       (2) counsel’s action or inaction lacked any objectively reasonable
       basis designed to effectuate his client’s interest; and
       (3) prejudice, to the effect that there was a reasonable probability
       of a different outcome if not for counsel’s error.

       A failure to satisfy any of the three prongs of this test requires
       rejection of a claim of ineffective assistance.

____________________________________________


3 Appellant does not elaborate in his brief as to why the jury would have
acquitted him nor does he state that there was a reasonable probability of this
different outcome. See Appellant’s Brief at 22.

                                           -7-
J-S42035-19



Medina, 209 A.3d at 1000 (internal brackets, citations, and quotation marks

omitted) (some formatting).     The right to effective assistance of counsel

extends to the plea process. Commonwealth v. Wah, 42 A.3d 335, 338-39

(Pa. Super. 2012).

      The longstanding rule of Pennsylvania law is that a defendant may
      not challenge his guilty plea by asserting that he lied while under
      oath, even if he avers that counsel induced the lies.

      A person who elects to plead guilty is bound by the statements he
      makes in open court while under oath and may not later assert
      grounds for withdrawing the plea which contradict the statements
      he made at his plea colloquy.

Commonwealth v. Yeomans, 24 A.3d 1044, 1047 (Pa. Super. 2011)

(emphasis added) (citation omitted).

      In the current action, Appellant stated in open court while under oath

that he was pleading guilty of his own free will and that no one – which would

include his trial counsel – had “forced” or “threatened” him “to plead guilty in

any way.” N.T., 12/18/2018, at 4-5.

      Moreover, th[e trial c]ourt had Appellant go over the written guilty
      plea colloquy form with his attorney, sign the document, and
      questioned him to make sure he understood what w[as] contained
      therein. Appellant responded in the affirmative and that he was
      proceeding of his own free will. [N.T., 12/18/2018,] at 5-6. The
      colloquy include[d] an explanation regarding the implications of
      an “open guilty plea.” Id. at 4.

      Appellant, who at the time of the plea was receiv[ing] mental
      health treatment and taking psychiatric medication told the Court
      he was able to discuss the matter with his attorney and make
      decisions about how to proceed. Id. at 6. When asked if Appellant
      was satisfied with his attorney, Appellant responded “Yes” and
      acknowledged that his attorney discussed the charges, maximum
      penalties and mandatories with him and no further discussion was
      needed. Id. at 7-8.

                                     -8-
J-S42035-19



PCRA Court Opinion, filed June 25, 2018, at 5. 4 Appellant is bound by these

statements and cannot now assert the contradictory claims that his mental

health status was inadequately addressed, that his counsel forced him to plead

guilty, that he did not understand the implications of his plea, or that he was

otherwise dissatisfied with his counsel.         See Appellant’s Brief at 21;

Yeomans, 24 A.3d at 1047.            Consequently, Appellant’s argument that he

suffered prejudice is not supported by the record.

       As Appellant cannot satisfy one prong of the ineffective assistance of

counsel test, his entire ineffectiveness claim fails. Medina, 209 A.3d at 1000.

       Since Appellant is not entitled to PCRA relief and no purpose would be

served by any additional proceedings, he is likewise not entitled to an

evidentiary hearing. Commonwealth v. Postie, 200 A.3d 1015, 1022 (Pa.

Super. 2018) (en banc) (“A petitioner is not entitled to a PCRA hearing as a

matter of right; the PCRA court can decline to hold a hearing if there is no

genuine issue concerning any material fact, the petitioner is not entitled to

PCRA relief, and no purpose would be served by any further proceedings.”).

       For the reasons given above, we conclude that Appellant’s issues raised

on appeal are meritless. Having discerned no error of law, we affirm the order

below. See Medina, 209 A.3d at 996.

       Order affirmed.

____________________________________________


4 We further note that, pursuant to this Court’s previous review of this case,
it described the oral guilty plea colloquy as “thorough[.]” Jones, No. 1551
EDA 2009, at 2.

                                           -9-
J-S42035-19


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/29/19




                          - 10 -
