J-S58021-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                 IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                          Appellee

                     v.

DARYL LAMAR SHUPP, JR.,

                          Appellant                No. 588 MDA 2015


                   Appeal from the Order of March 3, 2015
             In the Court of Common Pleas of Lancaster County
 Criminal Division at No(s): CP-36-CR-0000506-2011, CP-36-CR-0000616-
                       2012, CP-36-CR-0000740-2012


BEFORE: GANTMAN, P.J., OLSON AND PLATT,* JJ.

MEMORANDUM BY OLSON, J.:                      FILED DECEMBER 07, 2015

      Appellant, Daryl Lamar Shupp, Jr., appeals from an order entered on

March 3, 2015 in the Criminal Division of the Court of Common Pleas of

Lancaster County that denied his petition filed pursuant to the Post

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

      The PCRA court thoroughly summarized the facts and procedural

history in this case as follows:

      [Appellant was charged at docket number 506-2011 with
      fourteen counts of theft by deception (graded as third-degree
      felonies), seven counts of theft by deception (graded as
      first-degree misdemeanors), and one count of theft by deception
      (graded as a third-degree misdemeanor).        The charges at
      506-2011 are referred to as the “Credit Bureau charges” and
      arose out of Appellant’s thefts from his former employer, the
      Credit Bureau of Lancaster County, from January 1, 2005
      through October 1, 2009.        At docket number 616-2012,
      Appellant was charged with two counts of theft by deception
      (graded as second-degree misdemeanors). At docket number

* Retired Senior Judge assigned to the Superior Court
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     740-2012, Appellant was charged with four counts of theft by
     deception (graded as first-degree misdemeanors) and three
     counts of theft by deception (graded as second-degree
     misdemeanors). The charges at docket numbers 616-2012 and
     740-2012 are referred to as the “Laser Lab charges” and arose
     out of Appellant’s thefts from his next employer, Laser Lab, from
     February 1, 2011 to June 1, 2011. Appellant committed some of
     the offenses included as the Laser Lab charges after the
     Commonwealth filed information 506-2011 but before the
     preliminary hearing in that case.]

     [Appellant] entered an open guilty plea to all the charges on
     September 24, 2012. A pre-sentence investigation was ordered
     [and,] on December 7, 2012, [Appellant] was sentenced by the
     [trial c]ourt to an aggregate sentence of four to [12] years in a
     state correctional institution, followed by seven years
     consecutive probation. After [sentencing], [Appellant] filed a
     [n]otice of [a]ppeal to th[is Court and we] affirmed [Appellant’s
     judgment of sentence] on November 6, 2013.             [Appellant
     thereafter] filed a pro se PCRA petition on December 6, 2013
     and was appointed counsel. A counseled petition was filed on
     August 15, 2014, alleging trial counsel was ineffective for failing
     to clarify whether [Appellant’s] plea was open or negotiated and
     [for] failing to file a post-sentence motion challenging the
     validity of the guilty plea.

     An evidentiary hearing was held on October 30, 2014. At the
     hearing, [Appellant] presented three witnesses:         Attorney
     Steven Breit, who originally represented [Appellant] at the
     preliminary hearing for [the Credit Bureau] charges at docket
     506-2011; Attorney Richard B. MacDonald, who represented
     [Appellant] through sentencing on all three dockets following
     Attorney Breit’s withdrawal from the case; [and, Appellant]. The
     Commonwealth presented testimony from [Assistant District
     Attorney (“ADA”) Charles H. Rieck, IV]. [Appellant] and the
     Commonwealth stipulated to the testimony of Attorney Melissa
     R. Montgomery, who represented Petitioner at his preliminary
     hearing on [the Laser Lab charges at] docket numbers 616-2012
     and 740-2012.

     Attorney Breit testified that he represented [Appellant] at the
     preliminary hearing on February 3, 2011 for the [Credit Bureau]
     charges on docket 506-2011. Attorney Breit testified that prior
     to the hearing, he had discussions with ADA Rieck, the ADA

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     assigned to the case, in which Attorney Breit had worked out a
     potential plea agreement which called for concurrent sentences
     on the Credit Bureau charges, resulting in a county sentence.
     Attorney Breit also testified that he had written a
     memo[random] to himself memorializing the conversation, dated
     January 21, 2011[.] [T]he memo[random] indicated that ADA
     Rieck would agree to a county sentence if the preliminary
     hearing was waived as a sign of acceptance of responsibility.
     Attorney Breit testified that he informed [Appellant] of the
     exchange and, as a result, [Appellant] waived his preliminary
     hearing on February 3, 2011. ADA Rieck was not the attorney
     present at the preliminary hearing and there was no
     memorialized communication from ADA Rieck confirming this
     offer [at] docket 506-2011.       Attorney Breit testified that
     [Appellant’s] bail on 506-2011 was revoked when he was
     charged [at] dockets 616-2012 and 740-2012. Attorney Breit
     entered his appearance on those charges on April 1, 2011, but
     by January 16, 2012, the relationship between Attorney Breit
     and [Appellant] had been strained to such a degree that the
     [trial c]ourt granted Attorney Breit leave to withdraw his
     appearance as defense counsel.

     The stipulated testimony of Attorney Montgomery stated that
     she appear[ed] as [Appellant’s] counsel at his preliminary
     hearing on [the Laser Lab charges at dockets 616-2012 and 740-
     2012 on] February 3, 2012, which [Appellant] waived. The
     stipulation also stated that Attorney Montgomery never had any
     conversation with Attorney Breit about [Appellant’s] criminal
     charges.

     Attorney MacDonald testified that he entered his appearance on
     all three docket numbers on May 4, 2012. Attorney MacDonald
     testified that he could not recall having any discussion with
     Attorney Breit about [Appellant’s] criminal charges. He testified
     that he met with [Appellant] approximately once a month and
     [Appellant] referenced an agreement [Appellant] believed
     existed between Attorney Breit and ADA Rieck from the first
     preliminary hearing. Attorney MacDonald testified that there
     was no agreement between Attorney Breit and ADA Rieck. He
     testified that had there been an agreement, it would no longer
     be valid because of [Appellant’s] continuing criminal conduct and
     because ADA Rieck was making it very clear that there were no
     agreements.      Attorney MacDonald testified that he knew


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     [Appellant] waived his preliminary hearing on docket 506-2011,
     but that the waiver was not in return for anything specific.

     Attorney MacDonald testified that at the time of the guilty plea,
     it was clearly an open plea. He testified that ADA Rieck had
     indicated a large payment of restitution might be helpful in the
     view of the [trial c]ourt, but ADA Rieck would not be offering
     anything in return for it. Attorney MacDonald testified that at
     the time of the guilty plea, he indicated to the [trial c]ourt that
     [Appellant] believed ADA Rieck had offered concurrent time on
     the Laser Lab charges, concurrent with each other and the Credit
     Bureau charges[.] [H]e specifically testified that he was “trying
     to make something from nothing” and “inviting the Judge to
     consider what [Attorney MacDonald] had been told [ADA] Rieck
     was saying to other [defense] attorneys without it being an
     agreement…even though it wasn’t in writing.”              Attorney
     MacDonald testified that none of the ADAs present for the guilty
     plea or sentencing rejected his statement regarding concurrency
     of the Credit Bureau charges and Laser Lab charges. Attorney
     MacDonald testified that neither an agreement nor a
     recommendation had been offered to him, so he proceeded as
     though [Appellant was entering] an open guilty plea. [Attorney
     MacDonald] testified that he did not believe there was any
     agreement in this case, and, if there had been an agreement, “it
     was negated by continuing criminal conduct, which in [Attorney
     MacDonald’s] opinion is not accepting responsibility for your
     current criminal conduct in any reference. He testified that he
     discussed with [Appellant] the differences between [an] open
     plea, [a] negotiated plea, and a partially negotiated plea and
     that [Appellant] “understood that it was an open plea, there
     were no deals, [and] it would be up to Judge Knisely to
     determine the sentence.” Attorney MacDonald testified that he
     believed [Appellant’s] guilty plea was knowing, voluntary and
     intelligent.

     Attorney MacDonald testified that he indicated to [Appellant]
     that [he] was likely looking at a sentence of four to eight years.
     [Attorney MacDonald] testified that he told [Appellant] that he
     should not be surprised by a harsh sentence based on the victim
     impact statements, which Attorney MacDonald described as “two
     of the best victim impact statements I ever read and/or heard in
     the courtroom.” [Attorney MacDonald] testified that after the
     sentencing, he met with [Appellant] in the holding cell and
     [Appellant] made no objection to the sentence, felt it was

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     reasonable, and had no intention of filing any motions disputing
     the sentence. Attorney MacDonald testified that [Appellant] did
     not contact him while [Appellant] was in Lancaster County Prison
     and that he only learned [Appellant] wanted to appeal from the
     Public Defender’s office, at which time Attorney MacDonald filed
     a motion to modify sentence on behalf of [Appellant].

     [Appellant] testified that Attorney Breit indicated that if the
     preliminary hearing for the Credit Bureau charges at docket 506-
     2011 was waived, then the ADA would agree to a county
     sentence. [Appellant] testified that he went over sentencing
     guidelines with Attorney Breit during every visit. [Appellant]
     testified that after the preliminary hearing, during his meetings
     with Attorney Breit, Attorney Breit never indicated whether the
     “deal” was still on with the Commonwealth. [Appellant] testified
     that when he appeared for his second preliminary hearing on the
     Laser Lab charges at docket[s] 616-2012 and 740-2012 with
     Attorney Montgomery, he was told that he should waive the
     hearing because the Commonwealth would run the charges
     along with the Credit Bureau charges at docket 506-2011.
     [Appellant] testified that he never retained Attorney Montgomery
     at the Common Pleas level. [Appellant] testified that he told
     Attorney MacDonald about the offer made by ADA Rieck for
     concurrent sentences. He testified that he signed the guilty plea
     paperwork indicating there was no negotiated guilty plea
     because he just signed where his attorney told him to sign. On
     cross-examination, [Appellant] testified that he committed new
     crimes after he [was charged for the Credit Bureau offenses],
     but prior to his preliminary hearing [in that case]. He testified
     that at his guilty plea he never stopped the plea and told anyone
     that this was not the plea he had agreed to enter. He testified
     that at the guilty plea he told the Court it was his decision to
     plead guilty, that he had not been forced, threatened, or coerced
     to plead guilty, and that the Court explained to him that the
     sentence would be solely up to the Court to decide. Finally,
     [Appellant] testified that he did not recall telling Attorney
     MacDonald that he wanted to file any motions after the
     sentencing.

     The Commonwealth called former ADA [] Rieck as their sole
     witness. [ADA] Rieck testified that he was the ADA in charge of
     [Appellant’s] criminal case. He testified that he never provided a
     formal offer to Attorney Breit regarding [Appellant’s] case. He
     testified that he would not have made a specific plea offer

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        because [pleas involving theft from an employer required
        approval from either the District Attorney or the First Assistant
        District Attorney when the case exceeded a certain dollar
        amount and Appellant’s charges far exceeded that threshold].
        ADA Rieck testified that he had discussed with Attorney Breit
        how [Appellant] might show remorse to mitigate a sentence, but
        no specific deal was reached. He also testified that any leniency
        he was inclined to show would have disappeared upon learning
        of [Appellant’s] subsequent crimes and that he believed he
        communicated that position to Attorney Breit. He also testified
        that if there had been any formal offer or formal deal, he would
        have conveyed the deal in writing along with discovery to
        Attorney MacDonald when Attorney MacDonald entered his
        appearance.

Trial Court Opinion, 3/4/15, at 1-6.              After the PCRA hearing and the

submission of briefs by the parties, the court denied collateral relief by order

dated March 3, 2015. This appeal followed.1

        On    appeal,   Appellant     raises     the   following   question   for   our

consideration:

        WAS NOT [APPELLANT] ENTITLED TO RELIEF UNDER THE POST
        CONVICTION RELIEF ACT BECAUSE THE KNOWINGNESS AND
        VOLUNTARINESS OF [APPELLANT’S] GUILTY PLEA WAS
        VITIATED BY THE INEFFECTIVENESS OF GUILTY PLEA COUNSEL
        AND BECAUSE GUILTY PLEA COUNSEL WAS INEFFECTIVE IN
        FAILING TO FILE A POST SENTENCE MOTION IN THE NATURE OF
        A MOTION CHALLENGING THE VALIDITY OF THE GUILTY PLEA?

Appellant’s Brief at 4.

        Appellant challenges an order that denied collateral relief under the

PCRA.        “Under the applicable standard of review, we must determine

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


1
    The requirements of Pa.R.A.P. 1925 have been satisfied.



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of legal error.”   Commonwealth v. Spotz, 18 A.3d 244, 259 (Pa. 2011)

(citation omitted). In conducting this inquiry, “[t]he PCRA court's credibility

determinations, when supported by the record, are binding on this Court[;

h]owever, this Court applies a de novo standard of review to the PCRA

court's legal conclusions.” Id. (citations omitted).

      Appellant contends that guilty plea counsel’s ineffectiveness caused

him to enter an invalid plea. Specifically, Appellant summarizes his claim as

follows:

      Guilty plea counsel [(Attorney MacDonald)] should have been
      aware the [Appellant] prior to entering his guilty plea was
      harboring the subjective belief that the Commonwealth would
      fulfill the promises that it made in return for his waiving the
      preliminary hearings on both [the Credit Bureau and Laser Lab]
      charges. Counsel was ineffective in failing to engage in either
      one of the following two courses of action: (a) ensure that [the
      various assistant district attorneys] attending the court
      proceedings were aware of the promises made by lead ADA
      Reick regarding recommendations that the Commonwealth would
      make at sentencing; or (b) ascertain that any such promise was
      rescinded, and inform [Appellant] of that fact.

      Counsel’s ineffectiveness rendered [Appellant’s] guilty plea
      unknowing and involuntary. Counsel was also ineffective in
      failing to file a motion challenging the validity of the guilty plea
      by raising the claim that [Appellant’s] guilty plea was induced by
      his belief that the Commonwealth at sentencing promised to
      recommend concurrent sentences on the Credit Bureau charges.

Appellant’s Brief at 28. Appellant concludes that this Court should reverse

the order denying collateral relief and further vacate his guilty plea and

sentence. Id. at 39.




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      To prevail on a petition for PCRA relief, a petitioner must plead and

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

resulted from one or more of the circumstances enumerated in 42 Pa.C.S.A.

§ 9543(a)(2).         Spotz,   supra.       These      circumstances    include      the

ineffectiveness of counsel, which “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).

      Our analysis of an ineffectiveness claim begins with the presumption

that counsel is effective. Spotz, supra. To overcome this presumption and

prevail   on   such    a   claim,   Appellant   must    plead   and    prove,   by    a

preponderance of the evidence, three elements: (1) the underlying legal

claim has arguable merit; (2) counsel had no reasonable basis for his action

or inaction; and (3) Appellant suffered prejudice because of counsel's action

or inaction. Moreover,

      claims of counsel's ineffectiveness in connection with a guilty
      plea will provide a basis for relief only if the ineffectiveness
      caused an involuntary or unknowing plea. This is similar to the
      ‘manifest injustice’ standard applicable to all post-sentence
      attempts to withdraw a guilty plea. The law does not require
      that appellant be pleased with the outcome of his decision to
      enter a plea of guilty: All that is required is that [appellant's]
      decision to plead guilty be knowingly, voluntarily and intelligently
      made.

      Once a defendant has entered a plea of guilty, it is presumed
      that he was aware of what he was doing, and the burden of
      proving involuntariness is upon him.   Therefore, where the
      record clearly demonstrates that a guilty plea colloquy was
      conducted, during which it became evident that the defendant
      understood the nature of the charges against him, the

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      voluntariness of the plea is established. A defendant is bound by
      the statements he makes during his plea colloquy, and may not
      assert grounds for withdrawing the plea that contradict
      statements made when he pled.

      Determining whether a defendant understood the connotations
      of his plea and its consequences requires an examination of the
      totality of the circumstances surrounding the plea.

      [I]n order to determine the voluntariness of the plea and
      whether the defendant acted knowingly and intelligently, the
      trial court must, at a minimum, inquire into the following six
      areas:

        (1) Does the defendant understand the nature of the
        charges to which he is pleading guilty?

        (2) Is there a factual basis for the plea?

        (3) Does the defendant understand that he has a right to
        trial by jury?

        (4) Does the defendant understand that he is presumed
        innocent until he is found guilty?

        (5) Is the defendant aware of the permissible ranges of
        sentences and/or fines for the offenses charged?

        (6) Is the defendant aware that the judge is not bound by
        the terms of any plea agreement tendered unless the judge
        accepts such agreement?

Commonwealth v. McCauley, 797 A.2d 920, 922 (Pa. Super. 2001)

(internal citations omitted).

      We have carefully reviewed the certified record, the parties’ appellate

submissions, and the PCRA court’s opinion.           In its opinion, the court

reviewed the transcript of Appellant’s plea hearing and concluded that,

based upon the totality of circumstances, Appellant entered a knowing,


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voluntary, and intelligent plea.   Trial Court Opinion, 3/4/15, at 9.      In

addition, upon review of the PCRA hearing transcript, the court credited the

testimony of plea counsel and ADA Reick and rejected Appellant’s testimony.

Taken together, the testimony offered by plea counsel and ADA Reick

credibly established that there was no plea agreement offered in this case

and that Appellant was fully aware that he tendered an open plea to the

charges against him.    The PCRA court found Appellant’s testimony to be

“patently unreasonable” in view of his assertion that he believed he still had

an agreement for a county sentence despite his continuing course of criminal

conduct and the revocation of his bail on the Credit Bureau charges. See id.

Since Appellant acknowledged at sentencing that he was entering an open

guilty plea under which the court was free to fashion his sentence, the PCRA

court held that Appellant was bound by this acknowledgement and that he

could not offer a contrary, subjective understanding as the basis for

collateral relief. We hold that the PCRA court’s findings are fully supported

by the record and that its legal conclusions are free of error. Accordingly,

we affirm.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/7/2015




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