J-S69020-19 & J-S69021-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JAMES EDWARD SULLIVAN                      :
                                               :
                       Appellant               :   No. 1611 EDA 2019


               Appeal from the PCRA Order Entered May 1, 2019
                n the Court of Common Pleas of Wayne County,
             Criminal Division at No(s): CP-64-CR-0000307-2016,
                           CP-64-CR-0000314-2016.



    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JAMES EDWARD SULLIVAN                      :
                                               :
                       Appellant               :   No. 1613 EDA 2019


              Appeal from the PCRA Order Entered May 1, 2019,
                in the Court of Common Pleas of Wayne County,
             Criminal Division at No(s): CP-64-CR-0000307-2016,
                           CP-64-CR-0000314-2016.


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




____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
J-S69020-19 & J-S69021-19



MEMORANDUM BY KUNSELMAN, J.:                      FILED AUGUST 11, 2020

      James Edward Sullivan appeals pro se from the order denying his first

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

§§ 9541-9546. We affirm.

      The pertinent facts and procedural history are as follows. On October

13, 2016, Sullivan entered a guilty plea at two different dockets. At CP-64-

CR-0000307-2016, Sullivan pled guilty to one count each of possession with

intent to deliver, criminal trespass, possessing an instrument of crime, and

resisting arrest. At CP-64-CR-0000314-2016, Sullivan pled guilty to one count

of conspiracy to commit theft.      Pursuant to the plea agreement, the

Commonwealth withdrew all additional charges. On November 3, 2016, the

trial court sentenced Sullivan, at both dockets, to an aggregate term of 75 to

168 months of imprisonment. The trial court denied Sullivan’s timely filed

post-sentence motion to modify sentence. Sullivan filed a timely appeal to

this Court in which he challenged the discretionary aspects of his sentence.

In an unpublished memorandum filed on August 25, 2017, we rejected

Sullivan’s claim and affirmed his judgment of sentence. Commonwealth v.

Sullivan, 175 A.3d 1114 (Pa. Super. 2017). Sullivan did not file a petition

for allowance of appeal to our Supreme Court.

      On February 12, 2018, Sullivan filed a timely pro se PCRA petition. The

PCRA court appointed counsel, and PCRA counsel filed a motion to withdraw

and 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)

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(en banc). On April 1, 2019, the PCRA court issued a Pa.R.Crim.P. 907 notice

of its intent to dismiss Sullivan’s petition without a hearing, and granted PCRA

counsel’s motion to withdraw. Sullivan filed a response. By order entered

May 1, 2019, the PCRA court dismissed Sullivan’s PCRA petition. This pro se

appeal followed.1      Both Sullivan and the PCRA court have complied with

Pa.R.A.P. 1925.

       In his appeal, Sullivan contends that the PCRA court erred in dismissing

his PCRA petition. See Sullivan’s Brief at 2. Our scope and standard of review

is well settled:

          In PCRA appeals, our scope of review is limited to the
          findings of the PCRA court and the evidence on the record
          of the PCRA court's hearing, viewed in the light most
          favorable to the prevailing party. Because most PCRA
          appeals involve questions of fact and law, we employ a
          mixed standard of review. We defer to the PCRA court's
          factual findings and credibility determinations supported by
          the record. In contrast, we review the PCRA court's legal
          conclusions de novo.

       Commonwealth v. Reyes-Rodriguez, 111 A.3d 775, 779 (Pa. Super.

2015) (citations omitted).
____________________________________________


1 Although Sullivan included both trial court docket numbers on his separate
notices of appeal, this fact no longer requires quashal. See Commonwealth
v Johnson, ___ A.3d ___, ___ (Pa. Super. 2020) (en banc), Slip Opinion at
12 (partially overruling Commonwealth v. Creese, 216 A.3d 1142 (Pa.
Super. 2019), to the extent that Creese interpreted Commonwealth v.
Walker, 185 A.3d 969 (Pa. 2018), as requiring Superior Court to quash
appeals when appellant filed multiple notices of appeal and each notice lists
all of the appealed from docket numbers). See also Commonwealth v.
Larkin, ___ A.3d ___, ___ (Pa. Super. 2020), Slip Opinion at 3 (accord).



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       In support of his claim that the PCRA court erred in dismissing his

petition, Sullivan contends that the PCRA court erred “in finding that [his]

PCRA claim that [plea counsel] rendered ineffective assistance of counsel for

inducing [him] into entering a negotiated guilty plea based upon the false

promise of concurrent sentencing was without merit.”         Id.   In addition,

Sullivan argues that the PCRA court erred “in finding that [his] PCRA claim

that [plea counsel] rendered ineffective assistance of counsel for failing to

raise the issue of [his] negotiated plea colloquy not being honored on direct

[appeal was] without merit.” Id. at 6.2

       Sullivan’s claims allege the ineffective assistance of plea counsel. To

obtain relief under the PCRA premised on a claim that counsel was ineffective,

a petitioner must establish by a preponderance of the evidence that counsel’s

ineffectiveness so undermined the truth determining process that no reliable

adjudication of guilt or innocence could have taken place. Commonwealth

v. Johnson, 966 A.2d 523, 532 (Pa. 2009).                “Generally, counsel’s

performance is presumed to be constitutionally adequate, and counsel will

only be deemed ineffective upon a sufficient showing by the petitioner.” Id.

This requires the petitioner to demonstrate that: (1) the underlying claim is

of arguable merit; (2) counsel had no reasonable strategic basis for his or her

____________________________________________


2 Sullivan also claims that the PCRA court erred in concluding that PCRA
counsel’s “no-merit” letter met the criteria of Turner/Finley since counsel did
not address his second claim of ineffectiveness. Sullivan’s Brief at 5. As
explained infra, because Sullivan did not raise this issue in his PCRA petition,
PCRA counsel cannot be faulted for failing to address it.

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action or inaction; and (3) petitioner was prejudiced by counsel's act or

omission. Id. at 533. A finding of "prejudice" requires the petitioner to show

"that there is a reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different." Id.

      Initially, upon review of Sullivan’s pro se PCRA petition, we note that

Sullivan did not challenge plea counsel’s ineffectiveness for failing to appeal

the claim that his plea deal was not honored. Therefore, because Sullivan’s

claim inappropriately is being raised for the first time on appeal, it is waived.

See generally, Pa.R.A.P. 302(a). Thus, the only claim preserved for review

involves the PCRA court’s rejection of Sullivan’s claim that plea counsel was

ineffective for inducing him to enter an invalid plea.

      This Court has summarized the following regarding claims that the entry

of a guilty plea was the result of ineffective assistance of counsel:

         A criminal defendant has the right to effective counsel
         during a plea process as well as during trial. A defendant is
         permitted to withdraw his guilty plea under the PCRA if
         ineffective assistance caused the defendant to enter an
         involuntary plea[.]

         We conduct our review of such a claim in accordance with
         the three-pronged ineffectiveness test under section
         9543(a)(2)(ii) of the PCRA. 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. Orlando, 156 A.3d 1274, 1280 (Pa. Super. 2017)

(citations omitted).




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      In this case, the PCRA court reviewed Sullivan’s answers to questions

posed in the written guilty plea colloquy he signed, as well as his responses

during the oral colloquy with the court. As part of this review, the PCRA court

explained:

         Most importantly to the current matter at hand in
         [Sullivan’s] PCRA [petition], the District Attorney asked
         “You understand that it is up to the Judge as to whether or
         not he sentences you consecutively or non-consecutively?”
         to which [Sullivan] again answered “Yes”. [Sullivan] had
         ample opportunity to address this Court and at no point did
         he raise any issues or objections with his belief that the
         District Attorney was not honoring his negotiated plea
         agreement and that he wanted to withdraw it.

             Whether a defendant understood a plea of guilty and its
         consequences is to be determined by examining the totality
         of the circumstances. Commonwealth v. Mendoza, 730
         A.2d 503 (Pa. Super. 1999). This Court recognizes that the
         totality of the circumstances [in this case] reflects a clear
         and thorough understanding of the consequences and
         outcomes of [Sullivan’s] guilty plea.       [Sullivan] read,
         initialed, and signed an elven (11) page written guilty plea
         colloquy. Additionally, [Sullivan] engaged in an extensive
         oral colloquy of the agreement which was conducted by both
         the District Attorney and this Court. [Sullivan] understood
         the charges to which he was pleading guilty as well as the
         possible sentence for these charges. [Sullivan] understood
         that the plea was considered an open plea and that while
         the District Attorney was not specifically seeking a
         consecutive sentence, it was within this Court’s discretion
         whether to issue a concurrent or consecutive sentence.

PCRA Court Opinion, 4/1/19, at 6. Our review of the record supports the PCRA

court’s conclusions.

      As this Court has summarized:




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         Our law presumes that a defendant who enters a guilty plea
         was aware of what he was doing. He bears the burden of
         proving otherwise.

                                     ***

            The long standing 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.

                                     ***

         [A] defendant who elects to plead guilty has a duty to
         answer questions truthfully.     We [cannot] permit a
         defendant to postpone the final disposition of his case by
         lying to the court and later alleging that his lies were
         induced by the prompting of counsel.

Commonwealth v. Pollard, 832 A.2d 517, 523-24 (Pa. Super. 2003)

(citations omitted).

      Here, as noted by the PCRA court, Sullivan responded that he

understood that the trial court would decide whether to impose his sentences

either consecutively or concurrently.      See N.T., 10/13/16, at 9-10.    In

addition, within the written guilty plea signed by Sullivan, he acknowledged

that the only promise made to him in return for his guilty plea was that the

District Attorney would not seek consecutive sentences. Written Guilty Plea,

10/13/16, at unnumbered 3.

      The fact that there was no guarantee Sullivan would receive concurrent

sentences is further evidenced by the statements of the parties when the trial



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J-S69020-19 & J-S69021-19



court sentenced Sullivan. At that time, the District Attorney reminded the

court that “there was an agreement between [plea] counsel and myself that I

would not personally request consecutive sentences in this case. However,

that it would be under the discretion, full discretion of the Court, and I honored

that agreement.” N.T., 11/3/16, at 4. For his part, plea counsel informed the

court that he believed the probation department’s recommendation of wholly

consecutive sentence was excessive, and plea counsel therefore asked the

trial court “to consider making some of the sentences concurrent.”          N.T.,

11/3/16, at 7.    Thus, contrary to Sullivan’s current claim, there was no

agreement between the parties and the court that Sullivan’s sentences would

be imposed concurrently.

      In sum, because our review of the record supports the PCRA court’s

conclusion that Sullivan’s ineffectiveness claims lack arguable merit or are

waived, the court properly denied his PCRA petition.     We therefore affirm its

order denying Sullivan post-conviction relief.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/11/2020




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