J-S35030-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

CALVIN ROUSE

                            Appellant                  No. 3069 EDA 2014


                Appeal from the PCRA Order September 18, 2014
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0010141-2010


BEFORE: MUNDY, OLSON and PLATT,* JJ.

MEMORANDUM BY OLSON, J.:                                 FILED JUNE 16, 2015

        Appellant, Calvin Rouse, appeals from the order entered on September

18, 2014, dismissing his petition filed under the Post-Conviction Relief Act

(PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.

        The PCRA court has ably summarized the underlying facts and

procedural posture of this case. As the PCRA court explained:

          [Appellant] entered an open guilty plea before [the trial
          court] on March 31, 2011 to . . . the charge of persons not
          to possess firearms. . . .[1] On June 9, 2011, [the trial court
          sentenced Appellant to serve a term of] five to ten years [in
          prison]. . . . [Appellant] did not file a post-sentence motion
          or [a direct appeal from his judgment of sentence].

          On January 24, 2012, [Appellant] filed a pro se petition
          under the [PCRA]. Gary S. Server, Esq. was appointed to
____________________________________________


1
    18 Pa.C.S.A. § 6105.



*Retired Senior Judge assigned to the Superior Court.
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       represent [Appellant]. . . . On June 24, 2013, Mr. Server
       filed a “no merit” letter and a motion seeking permission to
       withdraw as counsel pursuant to [Commonwealth v.
       Turner, 544 A.2d 927 (Pa. 1988) and Commonwealth v.
       Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc)]. On
       July 3, 2013, [the PCRA c]ourt sent [Appellant] notice of its
       intent to dismiss his petition pursuant to Pa.R.Crim.P. 907.

       Following Mr. Server’s filing of the [no merit] letter,
       [Appellant] requested that Mr. Server be removed as
       counsel. That request was granted on October 28, 2013.
       On the same day, David S. Santee, Esq., was appointed to
       represent [Appellant]. On November 19, 2013, Mr. Santee
       filed a motion for leave to file an amended PCRA petition on
       behalf of his client. Mr. Santee filed an amended PCRA
       petition on February 18, 2014.

       [Within the amended petition, Appellant claimed that, “[a]t
       the time [Appellant] entered his plea of guilty, he believed
       that it was a negotiated plea and that the Commonwealth
       would recommend a sentence of 11½ to 23 months[’]
       incarceration.”    Appellant’s Amended PCRA Petition,
       2/18/14, at ¶ 6. Appellant also claimed that – even though
       he repeatedly acknowledged, prior to sentencing, that he
       was entering an open plea of guilty – he “felt pressure to
       [acknowledge the fact that it was an open plea, including by
       signing plea forms which declared that his plea was open], .
       . . believing that trial counsel would complete the forms
       consistent with the plea negotiation that [Appellant]
       believed was in place for a sentence of 11½ to 23 months[’]
       incarceration.” Id. at ¶ 16. Appellant thus claimed that
       trial counsel was ineffective for “inducing [Appellant] to
       plead guilty by representing that [Appellant] would receive
       a sentence of 11½ to 23 months of incarceration when no
       such agreement had been made by the Commonwealth.”
       Id. at ¶ 31(b)(i). Further, Appellant claimed that counsel
       was ineffective for “failing to advise [Appellant] at
       sentencing, when it became clear that the 11½ to 23
       month[s’] sentence he promised was unlikely, that
       [Appellant] could request to withdraw his guilty plea.” Id.
       at ¶ 31(b)(ii).]

       On September 18, 2014, [the PCRA court] held a hearing on
       [Appellant’s] PCRA petition.  [At the conclusion of the

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       hearing, the   PCRA    court    made   the   following   factual
       findings:]

                                      ...

       There is no factual basis to support [Appellant’s] claim that
       his guilty plea was unknowingly and involuntarily made. . . .
       At the PCRA hearing, [Appellant] did not deny that he
       entered an open guilty plea before [the trial court]. In
       addition, [Appellant] testified that he grasp[ed] the
       difference between an open guilty plea and a negotiated
       guilty plea. He even readily acknowledged that [the trial
       c]ourt never once made any reference to or mention of any
       such negotiated plea agreement in the instant case.
       Moreover, this was hardly [Appellant’s] first time in court
       and he had previously entered guilty pleas in the past.
       [Appellant] incredibly testified that he believed a negotiated
       guilty plea was in place at the time of sentencing, despite
       the fact that [the trial c]ourt made no reference to any such
       agreement and despite the fact that [the trial c]ourt
       explained to [Appellant] that he could face [ten] years of
       incarceration for his open guilty plea. [Appellant] failed to
       offer any rational or credible explanation as to why he did
       not speak up and protest when [the trial court] sentenced
       him to [five to ten] years of incarceration if he sincerely
       believed he had negotiated a plea deal for 11½ to 23
       months of incarceration. Being well-versed in the criminal
       system, [Appellant] is hardly someone who would
       misunderstand the difference between a negotiated and an
       open guilty plea. Simply put, [the PCRA c]ourt did not
       credit [Appellant’s] testimony at the PCRA hearing.

       Meanwhile, at that same hearing, [Appellant’s plea counsel,
       Lonnie Fish, Esq.], credibly testified that there was no
       negotiated plea deal in place for his client and that this was
       in fact an open guilty plea. Further, Mr. Fish credibly
       testified that he never received instructions from his client
       to file an appeal on [Appellant’s] behalf or withdraw
       [Appellant’s] guilty plea. Mr. Fish [also testified] that he
       “absolutely” would have notified the [trial court] if he had
       received any instructions from his client [to withdraw the
       guilty plea]. . . . Again, [the PCRA] court simply did not
       believe anything that [Appellant] self-servingly testified to
       at the PCRA hearing. . . .

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       Moreover, notwithstanding his self-serving testimony,
       [Appellant] manifestly failed to proffer any evidence that his
       plea counsel was ineffective under the circumstances. The
       record in the instant matter is totally void of any credible
       evidence that [Appellant’s] open guilty plea was anything
       but voluntary, intelligent, and knowing. It is abundantly
       clear from the record that [Appellant] knew what was going
       on in [the underlying] proceedings. On March 31, 2011,
       [the trial c]ourt conducted a thorough and careful plea
       colloquy:

          [Trial Court:] [Appellant,] good morning. I understand
          from your attorney that you’re going to plead guilty; is
          that correct, sir?

          [Appellant:] Yes.

          [Trial Court:] Before I can accept your waiver, I do have
          to ask you some questions to make sure you do
          understand what rights you’re giving up.

          [Appellant:] Yes.

          [Trial Court:] How old are you?

          [Appellant:] Fifty-three.

          [Trial Court:] How far did you go in school?

          [Appellant:] Tenth grade. I have my diploma.

          [Trial Court:] So you read, write, and understand the
          English language?

          [Appellant:] Pretty much, yes.

          [Trial Court:] Have you ever been treated for any
          mental illnesses?

          [Appellant:] No.




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          [Trial Court:] Are you under the influence of any drugs
          or alcohol or prescription medication that would prevent
          you from understanding what’s happening here today?

          [Appellant:] None.

          [Trial Court:] I’m showing you the colloquy form.

          [Appellant:] Yes.

          [Trial Court:] Did you go over this form with your
          attorney?

          [Appellant:] Yes.

          [Trial Court:] Did you understand that form?

          [Appellant:] Yes.

          [Trial Court:] Is this your signature at the bottom of the
          page?

          [Appellant:] Yes.

                                     ...

          [Trial Court:] Your own attorney has indicated that
          you’re pleading guilty to [18 Pa.C.S.A. § 6105], graded
          as an F2; is that correct?

          [Appellant:] Yes.

          [Trial Court:] Carries a maximum of ten years in prison
          with maximum fine of $25,000[.00]; do you understand
          that?

          [Appellant:] Yes.

                                     ...

          [Trial Court:] I understand from your attorney, you
          discussed this plea fully and he advised you of your
          rights?


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          [Appellant:] Yes.

          [Trial Court:] At the end of this question and answer
          portion, I will have accepted your plea, which means I
          have made a judicial finding that your plea is proper.
          That means it is unlikely it will be reversed or
          overturned; do you understand that?

          [Appellant:] Yes.

                                     ...

          [Trial Court:] Once I hear the facts, if you choose, you
          can withdraw your plea at the time; do you understand
          that?

          [Appellant:] Yes.

          [Trial Court:] Once I hear the facts, if I [choose] not to
          accept this plea at this point, you can withdraw it.

          [Appellant:] Yes.

          [Trial Court:] Were you promised anything in exchange
          for your plea of guilty today?

          [Appellant:] No, ma’am.

          [Trial Court:] Were you threatened or forced?

          [Appellant:] No.

          [Trial Court:] Are you satisfied with the advice of your
          attorney?

          [Appellant:] Yes.

          [Trial Court:] Do you have any question for your
          attorney or the district attorney [] ?

          [Appellant:] No, ma’am.

          [Trial Court:] I find that [Appellant’s] guilty plea is
          knowing, voluntary, and intentional and I accept it. . . .

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PCRA Court Opinion, 1-2 and 4-11 (internal citations omitted).

      On September 18, 2014, the PCRA court denied Appellant’s PCRA

petition and Appellant filed a timely notice of appeal to this Court. Now on

appeal, Appellant raises the following claim:

        The PCRA court erred in denying post-conviction relief
        because Appellant testified that he believed he would
        receive a sentence of 11½ to 23 months [of] incarceration,
        plea counsel acknowledged that he discussed that very
        sentence with Appellant, and plea counsel further
        acknowledged that he never communicated his later
        concerns to Appellant before the [trial] court imposed its
        sentence.

Appellant’s Brief at 14 (some internal capitalization omitted).

      As we have stated:

        [t]his Court’s standard of review regarding an order
        dismissing a petition under the PCRA is whether the
        determination of the PCRA court is supported by evidence of
        record and is free of legal error. In evaluating a PCRA
        court’s decision, our 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. We may affirm a PCRA court’s decision on
        any grounds if it is supported by the record.

Commonwealth v. Rivera, 10 A.3d 1276, 1279 (Pa. Super. 2010) (internal

citations omitted).

      To be eligible for relief under the PCRA, the petitioner must plead and

prove by a preponderance of the evidence that his conviction or sentence

resulted from “one or more” of the seven, specifically enumerated

circumstances listed in 42 Pa.C.S.A. § 9543(a)(2). One of these statutorily

enumerated circumstances is the “[i]neffectiveness of counsel which, in the


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circumstances of the particular case, so undermined the truth-determining

process that no reliable adjudication of guilt or innocence could have taken

place.” 42 Pa.C.S.A. § 9543(a)(2)(ii).

      Counsel is, however, presumed to be effective and “the burden of

demonstrating ineffectiveness rests on [A]ppellant.”       Commonwealth v.

Rivera, 10 A.3d 1276, 1279 (Pa. Super. 2010).          To satisfy this burden,

Appellant must plead and prove by a preponderance of the evidence that:

         (1) his underlying claim is of arguable merit; (2) the
         particular course of conduct pursued by counsel did not
         have some reasonable basis designed to effectuate his
         interests; and, (3) but for counsel’s ineffectiveness, there is
         a reasonable probability that the outcome of the challenged
         proceedings would have been different.

Commonwealth v. Fulton, 830 A.2d 567, 572 (Pa. 2003).              “A failure to

satisfy any prong of the test for ineffectiveness will require rejection of the

claim.” Id.

      At the outset, we note a subtle discrepancy between the claim raised

in Appellant’s PCRA petition and the claim argued in Appellant’s brief to this

Court.   As explained above, within Appellant’s PCRA petition, Appellant

claimed that “[a]t the time [Appellant] entered his plea of guilty, he believed

that it was a negotiated plea and that the Commonwealth would

recommend a sentence of 11½ to 23 months[’] incarceration.” Appellant’s

Amended PCRA Petition, 2/18/14, at ¶ 6 (emphasis added).             Within the

petition, Appellant claimed that trial counsel was ineffective for:          1)

“inducing [Appellant] to plead guilty by representing that [Appellant] would


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receive a sentence of 11½ to 23 months of incarceration when no such

agreement had been made by the Commonwealth” and 2) “failing to advise

[Appellant] at sentencing, when it became clear that the 11½ to 23 month

sentence he promised was unlikely, that [Appellant] could request to

withdraw his guilty plea.” Id. at ¶¶ 31(b)(i) and (ii).

      However, within Appellant’s brief to this Court, Appellant claims that,

prior to sentencing, his trial counsel had informed Appellant that “a sentence

of 11½ to 23 months[’] incarceration was a realistic possibility” and that

counsel would merely “ask for a sentence of 11½ to 23 months[’]

incarceration.”   Appellant’s Brief at 19-20 and 22.      According to the claim

argued in the appellate brief, when it became apparent that “a sentence of

11½ to 23 months was no longer realistic,” trial counsel had an obligation to

“communicate his concerns to Appellant before proceeding any further so

that Appellant could have decided whether to request permission to

withdraw his guilty plea before being sentenced.”           Id. at 21 (internal

emphasis omitted).

      In other words, the claim Appellant raises in his PCRA petition is

premised upon trial counsel’s alleged representation, to Appellant, that there

was a negotiated guilty plea in place, with which the Commonwealth was

required to abide – whereas the claim Appellant argues in his appellate brief

is premised upon the allegation that the guilty plea was open, but that trial

counsel informed Appellant that “a sentence of 11½ to 23 months[’]

incarceration was a realistic possibility.”

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         Clearly, since Appellant did not raise the latter claim in his PCRA

petition, the claim is waived. Pa.R.A.P. 302(a) (“[i]ssues not raised in the

lower court are waived and cannot be raised for the first time on appeal”).

Moreover, to the extent Appellant preserved the claim that trial counsel was

ineffective for representing to Appellant that he was entering a negotiated

guilty plea – where “the Commonwealth would recommend a sentence of

11½ to 23 months[’] incarceration” – the claim fails.       This is because the

PCRA court found, as a fact, that Appellant knew his guilty plea was open

and that trial counsel never represented to Appellant that the guilty plea was

negotiated. PCRA Court Opinion, 1/6/15, at 4-11. Since the PCRA court’s

factual findings are supported by the evidence of record, Appellant’s

underlying claim has no arguable merit.         Appellant’s claim on appeal thus

fails.

         Order affirmed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/16/2015




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