J. S54044/15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA,               :     IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                            Appellee        :
                                            :
                    v.                      :
                                            :
BARRY L. SOLDRIDGE, JR.,                    :
                                            :
                            Appellant       :     No. 1396 EDA 2015

                   Appeal from the PCRA Order April 17, 2015
             In the Court of Common Pleas of Northampton County
               Criminal Division No(s).: CP-48-CR-0003940-2010

BEFORE: BOWES, PANELLA, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                      FILED OCTOBER 15, 2015

        Appellant, Barry L. Soldridge, Jr., appeals from the order entered in

the Northampton County Court of Common Pleas, denying his first Post

Conviction Relief Act1 (“PCRA”) petition seeking reinstatement of all of his

appellate and PCRA rights.       Appellant contends his waiver of his appellate

and PCRA rights was not knowing, intelligent and voluntary. We affirm.

        Following a jury trial, Appellant was found guilty of two counts of first

degree capital murder.2 Prior to sentencing, the Commonwealth agreed not

to seek the death penalty and Appellant accepted a sentence of two



*
    Former Justice specially assigned to the Superior Court.
1
    42 Pa.C.S. §§ 9541-9546.
2
    18 Pa.C.S. § 2502(a).
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consecutive life terms in return for his waiver of all appellate and PCRA

rights. Appellant was sentenced on October 14, 2011.

      On October 3, 2012, Appellant filed a pro se PCRA petition. The court

denied the petition and Appellant appealed.    This Court vacated the order

denying PCRA relief and remanded to the PCRA court with directions to

appoint counsel to represent Appellant. Commonwealth v. Soldridge, Jr.,

19 EDA 2013 (unpublished memorandum at 2) (Pa. Super. July 24, 2013).

On August 26, 2013, counsel was appointed. Appellant filed a request for

alternate counsel on November 3, 2014.      On November 4, 2014, present

counsel was appointed. On February 5, 2015, counsel filed a PCRA petition

contending Appellant’s waiver of all of his appellate and PCRA rights was not

free and voluntary. On February 25, 2015, the PCRA court held a hearing on

the petition. On April 17, 2015, the petition was denied. This timely appeal

followed. Appellant filed a timely court-ordered Pa.R.A.P. 1925(b) statement

of errors complained of on appeal. The PCRA court filed a Pa.R.A.P. 1925(a)

statement relying upon the reasons set forth in the Opinion and Order dated

April 17, 2015.

      Appellant raises the following issue for our review: “Whether the trial

court committed legal error by denying Appellant’s PCRA claim?” Appellant’s

Brief at 4.   Appellant contends that his waiver of his appellate and PCRA

rights was not knowing and voluntary and therefore his appellate and PCRA

rights should be reinstated. Id. at 8. He claims neither the written nor oral



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colloquy discussed the nature of mitigating factors and PCRA rights.            Id.

Appellant argues that “[b]oth colloquies are merely both verbatim recitations

of   the   statutes   and   laws   governing   our   jurisprudence,   rather   than

conversations to explore the true meaning of the words being stated.” Id.

at 9.

        Our review is governed by the following principles: “On appeal from

the denial of PCRA relief, our standard of review calls for us to determine

whether the ruling of the PCRA court is supported by the record and free of

legal error. The PCRA court’s findings will not be disturbed unless there is

no support for the findings in the certified record.”        Commonwealth v.

Lewis, 63 A.3d 1274, 1278 (Pa. Super. 2013)

        We review Appellant’s waiver of his appellate rights as follows:

              For a waiver to be knowing, the defendant must be
           made aware of the “essential ingredients” of the right he
           or she is waiving to ensure there is an understanding of
           the significance of what he or she is giving up.

                                    *    *     *

               To be voluntary, the waiver must be “the free and
           unconstrained choice of its maker.”         This requires a
           showing that the defendant, after consultation with counsel
           (if any) and consideration of the right he or she is
           forfeiting, has decided to waive the right at issue.

               Finally, for there to be an express waiver of a right, the
           trial court must conduct a colloquy on the record to ensure
           the decision to waive the right is informed and voluntary.

Commonwealth v. Baker, 72 A.3d 652, 667-68 (Pa. Super. 2013)

(citations omitted), appeal denied, 86 A.3d. 231 (Pa. 2014).


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     Instantly, Appellant waived all of his appellate and PCRA rights in

exchange for the Commonwealth’s agreement not to pursue the death

penalty. The trial court opined:

        [Appellant] knowingly, voluntarily       and intelligently
        accepted a plea negotiation with the Commonwealth, in
        which he waived all of his appellate rights . . . . In
        exchange for [Appellant] giving up these various rights, he
        avoided the Commonwealth seeking the death penalty in
        the sentencing phase of his murder trial. Thereafter, this
        [c]ourt conducted a lengthy oral colloquy with [Appellant],
        wherein this [c]ourt ensured that [he] was not under the
        influence of any drugs, alcohol, or medication and that he
        was not being treated by a psychologist or psychiatrist at
        the time of the colloquy that would undermine his
        comprehension of his agreement with the Commonwealth.
        The [c]ourt also ensured that [Appellant] read and
        understood the English language and understood not only
        the agreement but the reasons for the agreement.

            The [c]ourt then engaged in dialogue with [Appellant]
        regarding the rights he was forgoing such as the right to
        present mitigating evidence which would enable him to tell
        the jury “virtually everything” about himself and about the
        circumstances surrounding the murders from his point of
        view. The [c]ourt then ensured that [Appellant] discussed
        with his counsel the ramifications of not presenting
        mitigating evidence to the jury . . . .

                                   *    *    *

        [Appellant] was aware of the content of the written
        colloquy and the oral colloquy that he understood the
        agreement with the Commonwealth. . . .


           The [c]ourt also ensured that [Appellant] was satisfied
        with the performance of his counsel and that his counsel
        spoke with him regarding the content of the agreement
        and that by waiving his post-sentence rights, he was
        waiving the ability to challenge the effectiveness of his
        counsel.


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                                   *    *    *

         [Appellant] understood that he waived his right to present
         mitigating evidence and he would not be able to present
         any evidence the jury could take into consideration in
         fashioning [his] sentence, including any evidence relating
         to mental impairments.            Furthermore, [Appellant]
         understood that he could not present any future
         arguments regarding ineffective assistance of his counsel
         due to their failure to raise the argument of [his] mental
         infirmities or any other types of mitigating evidence.

                                   *    *    *

         [T]his [c]ourt explained to [Appellant] his rights under the
         PCRA, . . . the implications of giving up those rights, as
         well as the avenue through the court system, both State
         and Federal, he was foregoing, and that after the day of
         his hearing no other court would review his case.

             Due to both the oral and written colloquy executed by
         [Appellant], it is apparent to this [c]ourt that [Appellant]
         fully  understood     what    his   agreement     with   the
         Commonwealth entailed in regards to his sentence and
         appellate rights.      Further, this [c]ourt finds that
         [Appellant’s] waiver of his appellate rights was informed,
         knowing, voluntary and intelligent, and that such waiver
         was not the product of coercion.

PCRA Ct. Op., 4/17/15, at 4-6, 8, 10 (citations to record omitted). We find

no relief is due.

      A review of the record belies Appellant’s claims. The court conducted

an oral colloquy, inter alia, as follows:

         Q: You understand that you are entitled to a penalty
         hearing to decide whether you are to be sentenced to life
         imprisonment without parole or death penalty on 2 counts
         of first degree murder?

         A: Yes.


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           Q: . . . I want you to explain to me in your own words.
           What do you understand that was supposed to happen
           today?

           A: We were supposed to go through with the penalty
           phase to weight [sic] the aggravating and mitigating
           circumstances of what happened.

                                   *      *   *

           Q: And you know that the Commonwealth has to prove the
           aggravating factors by beyond a reasonable doubt . . . .

           A: Yes.

           Q: And you understand that the aggravating circumstances
           are the killing of more than 1 person and putting others in
           danger at the time of the killing. And that would have
           been proved through the testimony of the damage to the
           trailer. . . .

           A: Yes.

           Q: And the mitigating factors, virtually everything about
           you, would have been able to come in before the jury for a
           mitigating factor. It is a very broad category. In fact, Mr.
           Shipman[3] told me he had 12 witnesses ready to go.

           Am I right, Mr. Shipman?

           Mr. Shipman: That’s correct.

           The Court: How many of those were expert witnesses?

           Mr. Shipman: Four, well 4 potential expert witnesses.

           . . . By the Court:




3
    Christopher Shipman was Appellant’s counsel.



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        Q: Now, you have discussed this with your counsel and
        you agree that you are not going to be presenting any
        mitigating evidence in open Court?

        A: Yes.

        Q: So you are never going to get your chance to tell this
        jury your side of the story. Do you understand that?

        A: Yes.

                                 *    *    *

        Q: And you are giving up your rights here that all 12 jurors
        must be convinced beyond a reasonable doubt as to the
        existence of any aggravating circumstances and that their
        decision must be unanimous. Understood?

        A: Yes.

        Q: I also note that any one juror alone can find a
        mitigating circumstance has been proven by a
        preponderance of the evidence and that this decision does
        not have to be unanimous. You understand?

        A: Yes.

        Q: And that every juror is free to decide for himself or
        herself whether or not any mitigating factors have been
        proven. . . .

        A: Yes.

N.T. Sentencing Hr’g, 10/14/11, at 7-10.       The court then referred to the

written colloquy and asked counsel whether he had reviewed it with

Appellant and explained it to him. Counsel answered in the affirmative. Id.

at 11. The court asked Appellant if he had any questions about the written

colloquy and he stated and repeated: “I understand it. It is clear.” Id.




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       [The Court]: . . . And you understand that all 12 jurors
       must agree to either a life imprisonment without parole of
       a death sentence. Do you understand that?

       A: Yes.

       Q: And you know that if for some reason all the jurors are
       unable to unanimously agree to a sentence I will dismiss
       the jury and I would have sentenced you to life in prison
       without parole. Do you know that?

       A: Yes.

       Q: You know that even if 1 juror finds that any mitigating
       circumstances    outweighs    [sic]    the    aggravating
       circumstance the sentence must be life in prison without
       parole?

       A: Yes.

       Q: Do you know that and do you understand that by
       entering this agreement you are waiving your right to have
       the jury decide your penalty to this offense?

       A: Yes.

       Q: . . . You understand that a life sentence actually means
       life in this state? Unlike some other places, life without
       parole means life without parole in Pennsylvania?

       A: Yes.

                               *    *    *

       Q: And in return for the DA’s decision not to seek the
       death penalty on a count of murder in the first degree, for
       which I found you guilty, I agree to accept the sentence of
       life in prison without parole on the count for first degree
       murder, correct?

       A: Yes.

       Q: I agree never to seek, file or have filed on my behalf
       any direct or collateral appeal of either my conviction or


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       sentence or this agreement to either the Pennsylvania
       Superior, Supreme or any Federal Court?

       A: Yes.

       Q: Do you understand you are giving up these rights now
       and forever?

       A: Yes.

       Q: You are giving up your Constitutional right to claim
       ineffective assistance of counsel?

       A: Yes.

       Q: Now, I have asked you if you are happy with their
       services throughout the trial and you said you were. And
       by entering this you cannot claim later that they weren’t
       adequately prepared, which obviously they were. Agreed?

       A: Yes.

       Q: You can’t dispute the defense strategy in the future?

       A: Yes.

       Q: You can’t later say I wanted to testify and they wouldn’t
       let me. . . .

       A: Yes.

       Q: [Y]ou can’t complain about the failure to file pretrial
       motions or post trial motions?

       A: Yes.

       Q: You can’t complain about anything I did during the trial
       either. Do you understand that?

       A: Yes.

       Q: Or the DA?

       A: Yes.


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       Q: . . . I agree to never seek or file, ever file on my behalf
       any claims of Trial Court error regarding any pretrial, trial
       or post trial rulings or any claim of prosecutorial
       misconduct, pretrial, trial or post trial. I know that I am
       giving up those rights forever, agreed?

       A: Yes.

       Q: I agree never to file or seek to have filed on my behalf
       any petition or allocatur in either the State or Federal court
       systems related to this case. I know I’m giving up these
       rights forever?

       A: Yes.

       Q: I agree to never seek or have filed on my behalf any
       State or Federal collateral appeal of my conviction or
       sentence on this agreement including but not limited to
       any relief under the Post Conviction Relief Act or any
       Federal habeas corpus petition. Do you understand?

       A: Yes.

                                *     *      *

       Q: Do you understand that if you file a petition under PCRA
       and the trial [c]ourt denied my petition I would have a
       right to appeal to the Pennsylvania Supreme Court on the
       denial of this petition. I knowingly am forever giving up
       that right. You understand?

       A: Yes.

       Q: I know that if the Pennsylvania Supreme Court affirmed
       . . . the denial of my PCRA petition I could ask the United
       States Supreme Court to review my case. I know that I
       am giving up that right forever.

       A: Yes.

       Q: I know that if the U.S. Supreme Court did not review
       my case I could go to a Federal Trial Judge, ask them to



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       evaluate my claims.    I know I am giving up that right
       forever?

       A: Yes.

       Q: I know that if the Federal Trial Judge does not grant me
       relief I could appeal that decision to the Federal Court of
       Appeals and ask them to review the decision of the Trial
       Court. I know I am giving up that right forever?

       A: Yes.

       Q: I know if the Federal Court of Appeals does not grant
       me relief I can appeal that decision to the United States
       Supreme Court and ask them to review the decision of the
       Trial Court. I know that I am giving up that right forever.

       A: Yes.

       Q: I agree that no other Court will review my case after
       today?

       A: Yes.

       Q: . . . You do know if a sentence of death was imposed,
       the Pennsylvania Supreme Court would automatically
       review your case. Do you understand that?. And you are
       giving up that right, too?

       A: Yes.

       Q: I agree never to seek, file or have filed on my behalf
       any petition for Pardon . . . . I know I’m giving up that
       right forever, agreed?

       A: Yes.

       Q: I agree never to have filed or seek to file or have filed
       on my behalf any appeal for commutation of any of my
       sentence to the Governor of this great Commonwealth.
       I’m giving up that right forever. Do you understand that?

       A: Yes.



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        Q: I agree never to ask or have filed on my behalf any
        petition for extraordinary relief or post sentence motion
        before any State or Federal Court relating to [your]
        convictions or sentences of this agreement. I know I am
        giving up that right forever. Agreed?

        A: Yes.

        Q: I agree that a copy of this written agreement and
        colloquy should become part of my prison record or file.
        Agreed?

        A: Yes.

        Q: In return for my decision to comply with all the terms
        and conditions of this agreement and to give up each and
        every one of the rights described, the District Attorney
        agrees not to seek the death penalty against me on the
        count of murder in the first degree of which I have been
        found guilty.

        A: Yes.

        Q: Other than the terms and conditions set forth in this
        agreement no one has promised me anything or forced me
        or threatened me to accept the terms and conditions of
        this agreement. I have decided to accept all the terms and
        conditions of this agreement. And I know what I do and
        say today is final?

        A: Correct.

                               *     *      *

        Q: . . . I have read this entire [written] agreement
        [colloquy] and discussed it with my counsel and I have no
        question regarding the terms and conditions of the
        agreement. I understand exactly what is written in it.
        Yes?

        A: Yes.

Id. at 13-22.



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      Instantly, the Commonwealth agreed not to seek the death penalty

and Appellant accepted a sentence of two consecutive life terms in return for

his waiver of all appellate and PCRA rights. A review of the record reveals

the trial court made Appellant aware of the rights he was giving up.

Therefore, his waiver was knowing. See Baker, 72 A.3d at 667. Appellant

testified he consulted with counsel and was not coerced to forfeit his right to

all appellate and PCRA review. Therefore, his waiver was voluntary. See id.

We find the PCRA court’s ruling to be supported by the record and free of

legal error. See Lewis, 63 A.3d at 1278.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/15/2015




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