J-S24025-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                        Appellee

                   v.

VICTOR BALLARD,

                        Appellant                    No. 2715 EDA 2014


          Appeal from the PCRA Order entered August 14, 2014,
              in the Court of Common Pleas of Bucks County,
           Criminal Division, at No(s): CP-09-CR-0001328-2012


BEFORE: GANTMAN, P.J., ALLEN, and MUSMANNO, JJ.

MEMORANDUM BY ALLEN, J.:                             FILED APRIL 13, 2015

     Victor Ballard (“Appellant”) appeals from the order denying his petition

for relief under the Post-Conviction Relief Act (“PCRA”), 42 Pa.C.S.A.

sections 9541-46. We affirm.

     The PCRA court summarized the pertinent facts as follows:

           In December 2010, the Thirty-Second Statewide
        Investigating Grand Jury began hearing evidence
        concerning a large scale heroin distribution ring operating
        in six counties within the Commonwealth—Philadelphia,
        Chester, Delaware, Montgomery, Perry, and Bucks. The
        Grand Jury issued three Presentments: Presentment No.
        2, issued March 23, 2011; Presentment No. 8, issued June
        21, 2011; and Presentment No. 18, issued October 13,
        2011. Those Presentments collectively recommended that
        the Attorney General arrest and prosecute thirty-one
        individuals, including [Appellant], identified as belonging to
        the “Black Widow” heroin distribution ring, for violations of
        the Controlled Substance, Drug, Device, and Cosmetic Act,
        the Corrupt Organizations statute, and other offenses
        under the Crimes Code as a result of the widespread
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        dissemination of heroin stamped “Black Widow” in
        southeast Pennsylvania.       During this investigation,
        [Appellant], a.k.a. “VI,” was electronically intercepted on
        numerous occasions ordering large amounts of heroin and
        was observed by police meeting his supplier at a
        prearranged location to make a purchase. The cellphone
        used to arrange these transactions was later found in
        [Appellant’s] possession.

PCRA Court Opinion, 11/12/14, at 1-2 (footnotes omitted).

     Appellant’s case was called for trial on March 16, 2012. During jury

selection, Appellant notified counsel that he wished to accept a plea

agreement offered by the Commonwealth.         Thereafter, Appellant entered

guilty pleas to multiple drug and drug-related offenses.      In return, the

Commonwealth      waived    all   applicable   mandatory    sentences    and

recommended an aggregate sentence of 7½ to 15 years of imprisonment.

That same day, the trial court sentenced Appellant in accordance with the

plea agreement.

     On September 7, 2012, Appellant filed a pro se PCRA petition, as well

as a supplemental petition on December 17, 2012. On February 22, 2013,

the PCRA court appointed counsel, and on September 9, 2013, PCRA counsel

filed an amended PCRA petition.      As his sole basis for relief, Appellant

asserted that he entered an invalid plea because trial counsel coerced him to

do so, and that he was actually innocent of all charges. On April 14, 2014,

the PCRA court held an evidentiary hearing, at which both Appellant and trial

counsel testified. By order entered August 14, 2014, the PCRA court denied

Appellant’s request for post-conviction relief. The PCRA court subsequently


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permitted PCRA counsel to withdraw, and the appointed present counsel.

This timely appeal followed. The PCRA court did not require Pa.R.A.P. 1925

compliance.

      Within his brief, Appellant raises the following issues:

         A. Whether the PCRA [court] erred by not finding
         Appellant’s trial [counsel] ineffective for telling Appellant
         that he will get “a hundred years” for a sentence, well
         above [] Appellant’s guidelines.

         B. Whether the PCRA [court] erred by not finding
         Appellant’s trial [counsel] ineffective for coercing Appellant
         to plead guilty by repeatedly urging [him] to plead guilty,
         thus creating a “brain washed” effect.

Appellant’s Brief at 4.

      In reviewing the propriety of an order granting or denying PCRA relief,

an appellate court is limited to ascertaining whether the record supports the

determination of the PCRA court and whether the ruling is free of legal error.

Commonwealth v. Johnson, 966 A.2d 523, 532 (Pa. 2009). We pay great

deference to the findings of the PCRA court, “but its legal determinations are

subject to our plenary review.” Id. Moreover, to be entitled to relief under

the PCRA, the petitioner must plead and prove by a preponderance of the

evidence that the conviction or sentence arose from one or more of the

errors enumerated in section 9543(a)(2) of the PCRA.             One such error

involves the ineffectiveness of 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



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that counsel's ineffectiveness so undermined the truth-determining process

that no reliable adjudication of guilt or innocence could have taken place.

Johnson, 966 A.2d at 532. “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 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. Counsel cannot be

deemed ineffective for failing to pursue a meritless claim. Commonwealth

v. Loner, 836 A.2d 125, 132 (Pa. Super. 2003) (en banc).

      In   both   of   his    issues,   Appellant   argues    that   trial   counsel’s

ineffectiveness led him to enter an invalid plea.            Appellant claims that,

“[d]espite Appellant’s statements during his guilty plea colloquy, his ability

to recognize that he was coerced, involuntary, and unknowing [sic] did not

arise until proper reflection over time.”      Appellant’s Brief at 8.       Appellant

further asserts that, “[u]pon proper reflection, [he] believes that the

improper suggestions by trial counsel that Appellant would get a significant

prison sentence combined with consistent representation that [he] should

plead guilty gives rise to an unknowing plea that is caused by ineffective


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counsel.” Id. According to Appellant, “[g]iven this tragic combination, the

[PCRA court’s] decision denying relief should be reversed.”         Id.   We

disagree.

      When asserting a claim of ineffectiveness of counsel in the context of a

guilty plea, a defendant must show that plea counsel’s ineffectiveness

induced him to enter the plea. Commonwealth v. Johnson, 875 A.2d 328,

331 (Pa. Super. 2005). This Court stated:


            Because a plea of guilty effectively waives all non-
        jurisdictional defects and defenses, after sentencing,
        allegations of ineffectiveness of counsel in this context
        provide a basis for withdrawal of the plea only where there
        is a causal nexus between counsel’s ineffectiveness, if any,
        and an unknowing or involuntary plea. The guilty plea
        hearing becomes the significant procedure under scrutiny.
        The focus of the inquiry is whether the accused was misled
        or misinformed and acted under that misguided influence
        when entering the guilty plea.

Commonwealth v. Flood, 627 A.2d 1193, 1199 (Pa. Super. 1993)

(citations omitted).

      Further, this Court summarized:

        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

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         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).

       The PCRA court explained why his exchange with Appellant during the

guilty plea colloquy established the validity of Appellant’s guilty plea.    See

PCRA Court Opinion, 11/12/14, at 4-6, citing notes of testimony from the

3/16/12 plea hearing. Our review of the guilty plea transcript supports the

PCRA court’s conclusions that Appellant testified that no one forced him to

enter his guilty plea, no one promised him anything in exchange for his plea

other than the recommended sentence, and that he had sufficient time to

speak with trial counsel about the case.1        In addition, Appellant agreed to

the factual basis for his plea. See N.T., 3/16/12, 29-40.

____________________________________________


1
  According to Appellant, trial counsel “admitted at the time of the plea that
there were portions of the plea that had not been covered in his
representation.”     Appellant’s Brief at 11.     To support this contention,
Appellant takes a singular “No” answer out of context. See N.T., 3/16/12,
at 301.      Nevertheless, Appellant informed the trial court that he had
sufficient time to discuss these aspects of his case with trial counsel and that
he was satisfied with the quality of trial counsel’s representation. See id.,
at 31.
(Footnote Continued Next Page)


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      Appellant’s answers to the trial court’s inquiry during the guilty plea

colloquy contradict Appellant’s claims in his amended PCRA petition.      The

fact that at the PCRA hearing Appellant admitted that he lied to the court,

see N.T., 4/14/14, at 42, does not provide a basis for post-conviction relief.

Pollard, supra.

      The PCRA court summarized the conflicting testimony presented by

Appellant and his trial counsel at the PCRA hearing as follows:


              During the PCRA hearing, [Appellant] testified that he is
          innocent of the charges to which he pled guilty. He
          asserted that he was coerced into pleading guilty, and that
          [trial counsel] “basically like brainwashed me to plead
          guilty” by repeatedly advising him to “plead guilty because
          you are not going to win.” [Appellant] also testified that
          counsel told him, “If you go to trial, you will get 100 years
          - - I don’t recall, but he said a lot of time.”

                                           ***

             Trial counsel testified that he recommended to
          [Appellant] that he plead guilty based on the strength of
          the Commonwealth’s evidence, including the audio
          recordings and visual surveillance.     He testified that
          although [Appellant] was initially strongly opposed to
          pleading guilty because he believed that there was
          insufficient evidence to establish that he possessed any
          drugs, his stance began to change following receipt of
          supplemental discovery that placed [Appellant] in
          possession of the telephone used during the drug
          transactions. Trial counsel testified that, following the
          receipt of supplemental discovery, [Appellant] then wanted
          counsel to negotiate a plea agreement. After negotiations
          and immediately before jury selection, the Commonwealth
          made a final offer to recommend a lesser sentence than
                       _______________________
(Footnote Continued)




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        had previously been offered. Trial counsel testified that he
        was prepared for trial and, in fact, had begun jury
        selection. He testified that, in the middle of jury selection,
        [Appellant] passed him a note that stated, “I will take the
        deal.”

PCRA Court Opinion, 11/12/14, at 3-4; 6-7 (footnotes omitted).

     The PCRA court then addressed Appellant’s specific claim regarding his

possible sentence:

           It is important to note that this Court also found the
        testimony of [Appellant’s trial counsel] to be credible as
        opposed to that of [Appellant].

                                   ***

           [Appellant] asserts on appeal that this Court “erred by
        not finding [trial counsel] ineffective for telling [him] that
        he will get ‘a hundred years’ for a sentence, well above
        [Appellant’s] guidelines.” This argument is not supported
        by the record. [Appellant] testified that trial counsel told
        him, “If you go to trial, you will get 100 years – I don’t
        recall but he said a lot of time.” It is therefore not at all
        clear what, if anything, counsel allegedly said to
        [Appellant] regarding sentencing. What is clear is that
        [Appellant] was, in fact, facing “a lot of time.”
        [Appellant’s] maximum exposure, if convicted of all
        charges, was 120 to 240 years. [N.T., 4/14/14, at 3.]
        Trial counsel cannot be deemed ineffective for advising
        [Appellant] of the applicable maximum sentence.

                                   ***

           Given the nature of the drug organization involved, the
        degree of [Appellant’s] involvement in the organization
        and his substantial criminal history, which included
        convictions for both crimes of violence and drug
        distribution, it would be more than appropriate for trial
        counsel to advise [Appellant] to expect a lengthy sentence
        if convicted.     Trial counsel cannot be found to be
        ineffective   for   giving accurate    and indispensable
        information to [Appellant] in making an informed decision


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         as to whether to accept or reject the offered plea
         agreement.

PCRA Court Opinion, 11/12/14, at 6; 7; 8 (footnotes omitted).

      Once again, our review of the record supports the PCRA court’s

conclusions.   The PCRA court credited the testimony of counsel over the

testimony and allegations made by Appellant at the PCRA hearing.           We

cannot disturb this determination.    See Commonwealth v. Battle, 883

A.2d 641, 648 (Pa. Super. 2005) (explaining that credibility determinations

are solely within the province of the PCRA court).

      Additionally, within his brief, Appellant refers to secondary sources,

such as law review and other articles, to support his claim that “his assertion

that his plea was not voluntary and was unknowing is supported by

academia and his own trial counsel.”       Appellant’s Brief at 12.   As noted

supra at n.1, the record refutes Appellant’s characterization of trial

counsel’s testimony.    To the extent Appellant cites to “academia” sources,

this claim was not presented to the PCRA court and is therefore waived on

appeal. See generally, Pa.R.A.P. 302(a).

      Based on the foregoing, we affirm the PCRA court’s order denying

Appellant post-conviction relief.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/13/2015




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