J-S61039-14

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,             :   IN THE SUPERIOR COURT OF
                                          :         PENNSYLVANIA
                Appellee                  :
                                          :
                   v.                     :
                                          :
RICHARD EUGENE TOKARCIK, JR.,             :
                                          :   No. 797 WDA 2014
                Appellant                 :

             Appeal from the PCRA Order Entered April 12, 2013,
              in the Court of Common Pleas of Jefferson County,
            Criminal Division, at No(s): CP-33-CR-0000081-2010,
            CP-33-CR-0000083-2010, CP-33-CR-0000217-2010,
            CP-33-CR-0000218-2010, CP-33-CR-0000219-2010,
                        and CP-33-CR-0000220-2010

BEFORE:     FORD ELLIOTT, P.J.E., WECHT, and STRASSBURGER, JJ.*

MEMORANDUM BY STRASSBURGER, J.:                   FILED OCTOBER 8, 2014

      Richard Eugene Tokarcik, Jr. (Appellant) appeals pro se from the April

12, 2013 order denying his petition filed pursuant to the Post Conviction

Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. Upon review, we affirm.

      The lengthy and tortuous history of this case was summarized as

follows by a prior panel of this Court:

      … Between December 21, 2009 and March 22, 2010, Appellant
      was charged in six different criminal complaints with multiple
      counts of burglary, access device fraud (ADF) and related
      offenses, stemming from incidents occurring at a number of
      locations from August 22, 2008 to November 26, 2009.
      Appellant was represented in each case by Thomas P. Morris,
      Esquire. On February 28, 2011, Appellant filed an omnibus
      pretrial motion. The trial court conducted a hearing on the
      omnibus pretrial motion on March 7, 2011. At the conclusion of
      the hearing, the trial court denied all of Appellant’s requested



*Retired Senior Judge assigned to the Superior Court.
J-S61039-14


     relief and granted the Commonwealth’s            oral   motion   to
     consolidate Appellant’s cases.

           Later that day Appellant and the Commonwealth appeared
     before the trial court for the purpose of entering a guilty plea
     pursuant to a negotiated written plea agreement, which included
     a recommended sentence. Appellant pled guilty to ten counts of
     burglary, each graded as a second-degree felony, and two
     counts of ADF, each graded as a third-degree felony. The trial
     court then indicated that it accepted the plea agreement,
     including the sentencing recommendation.        Next, Appellant
     waived the necessity of a presentence report and the trial court
     proceeded immediately to sentence Appellant.

           Purporting to follow the recommended sentence, the trial
     court sentenced Appellant to a term of incarceration of five to
     ten years on the first burglary count, subject to RRRI minimum
     of 50 months, to run concurrently with Appellant’s prior sentence
     from Clearfield County. For each of the other nine burglary
     counts, the trial court imposed a term of probation of ten years
     consecutive to the first count and “consecutive with one
     another.” For each of the ADF counts the trial court imposed a
     term of probation of one year consecutive to the burglary counts
     and concurrent with each other.         Accordingly, Appellant’s
     aggregate sentence was five to ten years’ incarceration, with
     RRRI eligible 50 months’ minimum, followed by 91 years’
     probation.

            On March 14, 2011, and March 18, 2011, Appellant filed
     pro se motions to withdraw his guilty plea. Therein Appellant
     alleged several instances of counsel’s ineffectiveness, including a
     failure “to explain the terms of the plea agreement.” The trial
     court denied both pro se motions on March 18, 2011. Appellant
     filed no counseled post-sentence motion or notice of appeal.

            On April 21, 2011, Appellant filed a pro se “Writ of Habeas
     Corpus,” which the trial court denied by order filed April 25,
     2011. On May 9, 2011 Appellant filed a pro se PCRA petition
     alleging, inter alia, that his guilty plea was not entered
     knowingly, intelligently and voluntarily, and that plea counsel
     was ineffective when advising him about the plea. The PCRA
     court appointed counsel on May 23, 2011. On September 1,



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      2011, PCRA counsel filed a petition to withdraw with
      accompanying no-merit letter pursuant to Commonwealth v.
      Turner, 544 A.2d 927 (Pa. 1988), Commonwealth v. Finley,
      550 A.2d 213 (Pa. Super. 1988) (en banc), and their progeny.
      That same day, citing PCRA counsel’s no-merit letter and its own
      independent review, the PCRA court issued a notice of intent to
      dismiss Appellant’s PCRA petition pursuant to Pa.R.Crim.P. 907.
      Appellant did not file a response to the PCRA court’s notice. The
      PCRA court dismissed Appellant’s PCRA petition on September
      21, 2011. The PCRA court did not rule on PCRA counsel’s
      petition to withdraw. Subsequently, PCRA counsel filed a motion
      to withdraw appearance, averring “[t]here is no appeal or other
      post-sentencing proceedings pending before the [PCRA court] …”
      The PCRA court granted PCRA counsel’s motion to withdraw the
      next day. On October 20, 2011, Appellant filed a timely pro se
      notice of appeal.

Commonwealth v. Tokarcik, 60 A.3d 571, (Pa. Super. 2012) (unpublished

memorandum at 1-6) (internal citations and footnotes omitted; emphasis in

original).

      On appeal, a panel of this Court concluded that “Appellant’s claim of

ineffective assistance of counsel resulting in the entry of an involuntary and

unknowing guilty plea is not frivolous.” Id. (unpublished memorandum at

18). Specifically, this Court was concerned about the 91-year probationary

tail based upon a handwritten note on Appellant’s written plea colloquy,

which stated as follows.

      In exchange for a plea of guilty to 10 counts of burglary
      [Appellant] will receive a sentence of 5-10 years on one count
      followed by 90 years probation on other 9 counts. Sentence to
      be concurrent. Together with fine & costs & restitution. ADF - 2
      counts - 1 year probation each consecutive to burglary but
      concurrent to one another. Sentences to run concurrent with
      Clearfield County sentence.



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Plea Agreement, 3/7/2011.         This Court concluded this paragraph is

“ambiguous” because “one reasonable interpretation is that the nine

probationary sentences for the remaining burglary counts would run

concurrently with one another.”     Tokarcik, (unpublished memorandum at

13). Moreover, upon review of the oral plea colloquy, this Court concluded

that “it is apparent that the trial court did not specifically ascertain whether

Appellant understood the terms of his plea agreement.” Id. (unpublished

memorandum at 16).       Thus, this Court vacated the September 21, 2011

order and remanded the case for a hearing, as well as new counsel to

represent Appellant on remand.

        On August 21, 2012, the PCRA court appointed Joseph D. Ryan,

Esquire to represent Appellant, and a PCRA hearing occurred on March 1,

2013.    On April 12, 2013, the PCRA court issued an opinion and order

denying Appellant’s PCRA petition. On May 8, 2013, Attorney Ryan filed a

petition for leave to withdraw as counsel and brief pursuant to Anders v.

California, 386 U.S. 738 (1967).1 On May 29, 2013, Appellant filed a letter

with the PCRA court indicating his desire to pursue an appeal, and also

requested that counsel be permitted to withdraw.




1
 We observe that the proper procedure for counsel to withdraw in a PCRA
proceeding is set forth in Turner/Finley.


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      On appeal, a panel of this Court quashed Appellant’s appeal because it

was not filed within 30 days of the April 12, 2013 order denying Appellant’s

PCRA petition. Commonwealth v. Tokarcik, 920 WDA 2013 (Pa. Super.

filed April 9, 2014) (unpublished memorandum). However, this Court also

observed that Appellant may qualify for reinstatement of his appeal nunc pro

tunc as PCRA counsel may have been ineffective in failing to preserve

Appellant’s   appellate   rights.    Specifically,   this   Court   cited   to

Commonwealth v. Bennett, 930 A.2d 1264 (Pa. 2007). In Bennett, our

Supreme Court held “that when a petitioner claims he was abandoned on

appeal by former counsel, he may successfully invoke section 9545(b)(1)(ii)

if he can establish that the facts upon which his claim is predicated were

unknown to him and could not have been discovered through the exercise of

due diligence.” Commonwealth v. Watts, 23 A.3d 980, 984 (Pa. 2011).

See Tokarcik, 920 WDA 2013 (Pa. Super. filed April 9, 2014) (unpublished

memorandum at fn. 5).

      On April 17, 2014, Appellant filed pro se a PCRA petition alleging the

ineffective assistance of counsel for abandoning him on appeal pursuant to

Bennett. On April 21, 2014, the PCRA court entered an order appointing

Attorney Fred Hummel on Appellant’s behalf and permitting an appeal to be

filed within 30 days. On May 5, 2014, Appellant timely filed a pro se appeal.

Counsel filed an amended notice of appeal on May 22, 2014.          The PCRA




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court ordered a concise statement, and Appellant filed a pro se concise

statement, as well as a motion for withdrawal of counsel and permission to

proceed pro se. On June 17, 2014, the PCRA court held a hearing pursuant

Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1986), and concluded that it

was Appellant’s wish to proceed pro se.         Thus, appointed counsel was

permitted to withdraw.

        On appeal, Appellant sets forth three questions for our review.

        1) Was [sic] the terms of the plea agreement, as written,
        ambiguous relative to it’s [sic] understanding, and in so shall be
        constued [sic] against the government?

        2) Was counsel ineffective during plea/sentencing proceedings,
        which caused [A]ppellant to be sentenced to a set of terms
        unrelated to the negotiated plea agreement?

        3) Was it judicial error when the [t]rial [c]ourt unilaterally
        altered the terms of the negotiated plea agreement, which it
        previously accepted? Terminally, did the [t]rial [t]ourt exceed
        it’s [sic] authority by failing to sentence [Appellant] in
        accordance with the terms of the negotiated plea agreement?

Appellant’s Brief at 5 (suggested answers omitted).2

               Our standard and scope of review for the denial of a PCRA
        petition is well-settled. [A]n appellate court reviews the PCRA
        court's findings of fact to determine whether they are supported
        by the record, and reviews its conclusions of law to determine
        whether they are free from legal error. The scope of review is
        limited to the findings of the PCRA court and the evidence of
        record, viewed in the light most favorable to the prevailing party
        at the trial level.




2
    The Commonwealth has not filed a brief in this appeal.


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Commonwealth v. Charleston, 94 A.3d 1012, 1018-19 (Pa. Super. 2014)

(internal quotation and citation omitted).

      Initially, we observe that, on remand, the prior panel of this Court

provided Appellant the opportunity “to prove his allegations at a hearing

where the PCRA court can consider the totality of the circumstances to

determine whether plea counsel provided effective assistance to Appellant in

the entry of his plea, whether the plea agreement was properly interpreted,

[and] whether Appellant understood the plea agreement[.]” Tokarcik, 60

A.3d 571, (Pa. Super. 2012) (unpublished memorandum at 18).

      On appeal, Appellant sets forth numerous arguments, many of which

re-argue the conclusions this Court already reached in Appellant’s prior

appeal: that the written colloquy was ambiguous (Appellant’s Brief at 16)

and that the oral colloquy was ambiguous (Appellant’s Brief at 19).

However, it was Appellant’s burden to prove that counsel misadvised

Appellant   or   that   Appellant’s   subjective   understanding   of   the   plea

agreement, as explained by counsel, was different from the sentence he

received. As such, we set forth our well-settled standards when reviewing

plea counsel’s effectiveness.

             To prevail on a claim of ineffective assistance of counsel, a
      petitioner must show, by a preponderance of the evidence,
      ineffective assistance of counsel which, in the circumstances of
      the particular case, so undermined the truth-determining
      process that no reliable adjudication of guilt or innocence could
      have taken place. The petitioner must demonstrate: (1) the



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      underlying claim is of arguable merit; (2) that counsel had no
      reasonable strategic basis for his or her action or inaction; and
      (3) but for the errors and omissions of counsel, there is a
      reasonable probability that the outcome of the proceedings
      would have been different. The petitioner bears the burden of
      proving all three prongs of the test.                 Allegations of
      ineffectiveness in connection with the entry of a guilty plea will
      serve as a basis for relief only if the ineffectiveness caused the
      defendant to enter an involuntary or unknowing plea. Where the
      defendant enters his plea on the advice of counsel, the
      voluntariness of the plea depends on whether counsel’s advice
      was within the range of competence demanded of attorneys in
      criminal cases. Moreover, [t]he law does not require that [the
      defendant] be pleased with the outcome of his decision to enter
      a plea of guilty: All that is required is that [his] decision to plead
      guilty be knowingly, voluntarily and intelligently made.

Commonwealth v. Anderson, 995 A.2d 1184, 1191-92 (Pa. Super. 2010)

(internal quotations and citations omitted).

      After considering the testimony presented at the hearing, the PCRA

court concluded the following.

              In order to rule in [Appellant’s] favor, the [PCRA court]
      would have to assume that [Appellant’s] failure to recall the
      events of March 7, 2011 equated with [Attorney] Morris’s failure
      to explain how the plea agreement had changed since the prior
      month,[3] because [Appellant’s] testimony was simply that he did
      not remember the substance of their conversations that day.
      Based on this testimony alone, therefore, the [PCRA court] could
      at best find it equally likely that [Attorney] Morris did and did not
      fulfill his duty to [Appellant]. [Appellant] had to prove, though,
      that he more likely did not. Having failed to do so, he would
      have failed to sustain his burden even had his testimony been
      the only evidence presented to the [PCRA court].

3
  On January 17, 2011, Attorney Morris wrote a letter to Appellant extending
the Commonwealth’s offer, which included 10 years’ probation. Appellant
ultimately rejected that offer in favor of having the trial court rule on pre-
trial motions.


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          The [PCRA court] had Attorney Morris’s testimony,
     however, and does not doubt that he followed his standard
     procedure on the date in question.

PCRA Court Opinion, 4/12/2013, at 5 (footnote added).

     The record supports the conclusions offered by the PCRA court.

Appellant testified that he did not remember his discussions with Attorney

Morris, and he does not remember having pled guilty. N.T., 3/1/2013, at 24.

Appellant also testified that he did not recall agreeing to the 91 year

probationary tail. Id. at 25-26.       In fact, in Appellant’s testimony, he

answered “I don’t recall” or “I don’t remember” to the majority of questions

posed.   However, he also testified that he remembered “not reading” the

plea agreement. Id. at 33. Furthermore, he did recall that he “received a

sentence that [he] felt [he] didn’t want.” Id. at 34.     He stated that his

“mental stress” prevented him from objecting to the sentence. Id.

     Attorney Morris also testified.    He stated that he remembered very

little about Appellant’s case.   With respect to discussing the 91-year

probationary tail, Attorney Morris indicated that he did not remember

discussing it, but he testified it was his custom to review plea agreements

with his clients, and would have objected at sentencing if anything was

amiss. See id., at 14-15.

     Based on this testimony, it is clear that Appellant failed to meet his

burden to show that counsel’s performance was deficient. “[C]ounsel is



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presumed effective, and [appellant] bears the burden of proving otherwise.”

Commonwealth v. Fears, 86 A.3d 795, 804 (Pa. 2014). Where, as here,

Attorney Morris testified that he followed his normal procedure in discussing

the terms of the plea agreement with Appellant, and Appellant has no

memory of the events in question, it was not an error of law or abuse of

discretion to find that Appellant has failed to meet his burden to establish

counsel’s ineffective assistance. Moreover, the written plea colloquy reflects

the 90-year term of probation that was imposed.       Accordingly, the PCRA

court did not err in denying Appellant relief, and we affirm the order of the

PCRA court.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary



Date: 10/8/2014




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