J-S01025-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    SINARD ALEX BALLARD                        :
                                               :
                      Appellant                :   No. 443 MDA 2017

                    Appeal from the PCRA Order May 3, 2016
      In the Court of Common Pleas of Luzerne County Criminal Division at
                        No(s): CP-40-CR-0003474-2008


BEFORE: GANTMAN, P.J., MURRAY, J., and MUSMANNO, J.

MEMORANDUM BY MURRAY, J.:                            FILED FEBRUARY 16, 2018

        Sinard Alex Ballard (Appellant) appeals from the order denying his

petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A.

§ 9541 et seq. After review, we affirm.

        The pertinent facts and procedural history are as follows:    On July 12,

2010, Appellant entered an open plea of guilty to one count of third-degree

murder and two counts of robbery.1 On September 28, 2010, the trial court

sentenced Appellant to a term of imprisonment of 20 to 40 years for murder,

and a concurrent five to ten years on the first count of robbery, with the

second robbery count merging with the first for sentencing purposes.




____________________________________________


1   18 Pa.C.S.A. §§ 2502(c) and 3701(a)(1)(i).
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       Appellant filed a motion for reconsideration, followed by a direct

appeal on September 29, 2010.              In both filings, he challenged only the

discretionary aspects of his sentence. On July 27, 2011, this Court denied

Appellant’s appeal.2       Commonwealth v. Ballard, 1734 MDA 2010 (Pa.

Super. 2011). Appellant filed a pro se PCRA petition on September 5, 2012,

and on October 5, 2012, the court appointed counsel to represent Appellant.

Following a hearing on May 16, 2013, the court concluded that the PCRA

petition was inappropriate because Appellant had not yet exhausted his

direct appeal rights.       The court therefore reinstated Appellant’s right to

appeal to the Pennsylvania Supreme Court from this Court’s July 27, 2011

order denying his appeal. Appellant filed a petition for allowance of appeal

with the Pennsylvania Supreme Court on June 6, 2013; the Supreme Court

denied the petition on October 10, 2013.

       On June 6, 2014, Appellant filed a timely pro se PCRA petition.3 The

court appointed counsel who filed an amended petition, and the PCRA court
____________________________________________


2  Because Appellant challenged only the discretionary aspects of his
sentence, this Court treated his direct appeal as a petition for of allowance of
appeal, which this Court then denied. See Commonwealth v. Sauers, 159
A.3d 1, 15 (Pa. Super. 2017) (“where an appellant challenges
the discretionary aspects of a sentence, the appeal should be considered
a petition for allowance of appeal”), appeal denied, 170 A.3d 1057 (Pa.
2017).

3 Pursuant to 42 Pa.C.S.A. § 9545(b)(1), a PCRA petition must be filed
within one year of the date the judgment becomes final. In this case,
Appellant’s judgment of sentence became final on or about January 8, 2014,
ninety days after the Pennsylvania Supreme Court denied the petition for
(Footnote Continued Next Page)


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conducted evidentiary hearings on June 23, 2015 and July 9, 2015. On May

3, 2016, the PCRA court denied and dismissed the PCRA petition.            PCRA

Court Order, 5/3/16.       Appellant filed a notice of appeal on May 19, 2016,

which this Court dismissed on July 15, 2016 for failure of Appellant to file a

docketing statement.       Order, 851 MDA 2016, 7/15/16.        On February 28,

2017, the PCRA court reinstated Appellant’s appellate rights nunc pro tunc

and appointed new counsel who filed a notice of appeal on March 6, 2017.

Both Appellant and the trial court have complied with Pa.R.A.P. 1925.

      Appellant raises a single issue for our review:

      1. Whether trial counsel was ineffective in guaranteeing that the
         Appellant would receive a certain sentence which the
         Appellant relied upon, thus making his guilty plea involuntary.

Appellant’s Brief at 1.

      Appellant argues that trial counsel was ineffective for guaranteeing

Appellant a sentence that he did not receive.           Appellant’s Brief at 6-7.

Specifically, Appellant claims that he pled guilty as a direct result of trial

counsel’s guarantee that he would receive a total prison term of nine to 18

years. Id. at 6. Therefore, Appellant asserts that he should be given the

opportunity to withdraw his plea and proceed to trial.



(Footnote Continued) _______________________

allowance of appeal and time expired for Appellant to seek certiorari in the
United States Supreme Court. 42 Pa.C.S.A. § 9545(b)(3); U.S. S.Ct. Rule
13. Appellant’s PCRA petition filed on June 6, 2014 is therefore timely.



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        “To be eligible for relief under [the PCRA], the petitioner must plead

and prove by a preponderance of the evidence . . . [t]hat the allegation of

error has not been previously litigated or waived.”               42 Pa.C.S.A. §

9543(a)(3). “[A]n 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.”      42     Pa.C.S.A.    §    9544(b);

Commonwealth v. Rachak, 62 A.3d 389, 391 (Pa. Super. 2012) (“While

[the a]ppellant focuses on the voluntariness of his guilty plea, that issue

should have been raised on direct appeal; it was not. Therefore the issue is

waived.”)     (footnote   omitted)), appeal      denied,    67   A.3d       796   (Pa.

2013). Here, Appellant could have raised his claim challenging the validity

of his guilty plea in a post-sentence motion and on direct appeal to this

Court, but failed to do so. Therefore, we could find this claim waived.

        To the extent that Appellant argues that trial counsel was ineffective

for unlawfully inducing Appellant’s plea, this claim is unsupported by the

record. At the guilty plea hearing on July 12, 2010, the trial court conducted

a thorough colloquy and Appellant stated that he understood he could

receive a maximum sentence of 40 years of imprisonment on the charge of

third-degree murder, and maximum sentences of 20 years of imprisonment

on the robbery charges. N.T., 7/12/10, at 6-7, 14-16. The record reads:

        Assistant District Attorney:   The maximum sentences on the
                                       three counts . . . murder of the
                                       third degree is a maximum of 40
                                       years . . . Robbery in count two . .

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                              . is . . . 20 years . . . maximum.
                              And robbery count three . . . is . . .
                              20 years . . . maximum.

     Trial Court:             Do you understand that, sir?

     Appellant:               This is what the statute hold[s] or
                              this is what the Commonwealth is
                              seeking?

     Trial Court:             No, that’s the statute.

     Counsel for Appellant:   That’s the  definition       of   the
                              maximum penalty.

                               ...

     Trial Court:             The next and most important part
                              of all this I think in my point of
                              view in dealing with you today, sir,
                              is you must assure me so that I
                              understand completely, sir, that
                              this is a completely voluntary thing
                              on your part. I must be assured,
                              sir, that no one has promised you
                              any special consideration, that no
                              one has promised you anything
                              concerning my participation in this
                              case. Because I assure you, sir, I
                              made no commitment to anyone;
                              not any lawyer, not any detective,
                              not any defense counsel, not any
                              prosecutor about what a sentence
                              would be. And quite frankly, at
                              this juncture, sir, I’m not quite
                              sure what the sentence is going to
                              be until I get a presentence
                              investigation on you and I learn
                              more about you and give you an
                              opportunity    and     along     with
                              everybody else in this case at
                              sentencing to articulate, to tell me
                              what is important at sentencing,
                              sir.

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                                    I will listen to whatever you want
                                    to present at that point in time. I
                                    will   listen   to    whatever    the
                                    Commonwealth wants to present.
                                    And that will be all important to me
                                    in my determination of what your
                                    sentence is going to be, but I
                                    assure you at this time I have
                                    nothing set in my mind about what
                                    your sentence is going to be. If
                                    someone has told you that I have
                                    made a commitment, that’s not
                                    true. Do you understand that, sir?

            Appellant:              Yes, I do, sir.

            Trial Court:            All right. Based upon that, do you
                                    still want to proceed with this plea?

            Appellant:              Yes, I do.


N.T., 7/12/10, at 13-16.

      As indicated above, the record does not reflect that Appellant entered

his guilty plea based on the guarantee of counsel that he would receive a

predetermined sentence.     Rather, the record indicates that Appellant was

advised of the statutory maximums he faced, with the judge stating

unequivocally that he would sentence Appellant prospectively, and only after

the judge reviewed a presentence investigation report and heard from both

parties.

      Appellant fails to expand on or otherwise detail his assertion that trial

counsel guaranteed him a sentence of nine to 18 years. Appellant’s Brief at




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6-7. At the PCRA hearing, he simply claimed that he did not pay attention

during the guilty plea hearing. The Trial court explained:

             [Appellant’s] bald assertion that trial counsel promised or
      guaranteed [Appellant] a particular sentence . . . is roundly
      rebutted by [Appellant’s] own statements and the overwhelming
      weight of credible testimony adduced [at] the guilty plea hearing
      [,] the sentencing hearing [and] the [PCRA] hearings.
                                        ...

             At the June 23, 2015 [PCRA] hearing, [Appellant]
      repeatedly asserted that he “just signed the paper” and “didn’t
      read the document” with regard to the guilty plea. [Appellant]
      repeatedly asserted that he “was vaguely answering” and that
      with regard to the detailed and probing colloquy, “I just blew it
      off, ya know.”
                                       ...

            [The trial c]ourt specifically discredited this testimony as
      against the record and the extensive colloquy [where Appellant]
      credibly answered detailed questions that convinced [the trial
      court] that [the] plea was knowing, intelligent, and voluntary.
                                          ...

            [The trial c]ourt specifically did not find [Appellant’s]
      testimony concerning [his counsel’s] promise to be credible.
                                       ...

       While [Appellant] may have possessed a hope or anticipation
      that his sentence would be 9 to 18 years, based upon this
      Court’s credibility determination during the PCRA hearings,
      [Appellant] has failed to establish [that trial counsel] guaranteed
      the sentence.

Trial Court Opinion, 10/3/17, at 7-9, 12 (citations to notes of testimony

omitted).

      Based on the foregoing, we find no merit to Appellant’s claim for

postconviction relief.

      Order affirmed.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/16/2018




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