J-S37023-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 DAVID SPERRY,                           :
                                         :
                   Appellant.            :   No. 1096 EDA 2018


               Appeal from the PCRA Order, March 23, 2018,
            in the Court of Common Pleas of Delaware County,
           Criminal Division at No(s): CP-23-CR-0005208-2013.


BEFORE: BOWES, J., KUNSELMAN, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY KUNSELMAN, J.:                    FILED OCTOBER 16, 2019

     David Sperry appeals from the order denying his first petition for relief

pursuant to the Post Conviction Relief Act (“PCRA”). 42 Pa.C.S.A. §§ 9541-

9546. We affirm.

     The pertinent facts and procedural history are as follows:           The

Commonwealth originally charged Sperry at three separate dockets with over

forty-four counts of various sexual offenses committed against several male

minors. On December 30, 2013, he entered a negotiated plea at No. CP-23-

CR-0005208-2013, to one count of involuntary deviate sexual intercourse, two

counts of unlawful contact with a minor, and four counts of corruption of

minors.   By agreement of the parties, the Commonwealth amended the

criminal information at No. CP-23-CR-0005208-2013 to reflect the names of

the victims, and the Commonwealth withdrew all of the charges at the other
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two dockets.   On March 31, 2014, the trial court imposed the negotiated

aggregate sentence of twelve to twenty-four years of imprisonment and a

consecutive ten-year probationary term.

      Sperry did not file a post-sentence motion or a direct appeal. On May

29, 2015, Sperry filed a timely, counseled PCRA petition. The Commonwealth

filed an answer, and Sperry filed an amended petition. The PCRA court held

an evidentiary hearing on November 17, 2015, at which both Sperry and trial

counsel testified.   The PCRA court granted the parties time to file briefs

supporting their positions. By order entered March 23, 2018, the PCRA court

denied Sperry’s amended PCRA petition. This timely appeal followed. Both

Sperry and the PCRA court have complied with Pa.R.A.P. 1925.

      Sperry raises the following issues:

         I.    Whether the [PCRA court] erred by denying [Sperry’s
               PCRA petition]:

               A. Where trial counsel failed to inform [Sperry] of the
                  applicability of Alleyne v. United States, 570
                  U.S. 99, 133 S.Ct. 2151, 186 L.Ed.2d 314 (June
                  17, 2013) to his [case] prior to counseling a
                  negotiated plea?

               B. Where the guilty plea was deficient because there
                  was no factual basis adduced of record to
                  substantiate [Sperry’s] knowing, intelligent, and
                  voluntary plea pursuant to Pa.R.Crim.P. 590?

Sperry’s Brief at 9 (bullet points omitted).

      Our scope and standard of review is well settled:

            In PCRA appeals, our scope of review is limited to the
      findings of the PCRA court and the evidence on the record of the


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       PCRA court's hearing, viewed in the light most favorable to the
       prevailing party. Because most PCRA appeals involve questions
       of fact and law, we employ a mixed standard of review. We defer
       to the PCRA court's factual findings and credibility determinations
       supported by the record. In contrast, we review the PCRA court's
       legal conclusions de novo.

Commonwealth v. Reyes-Rodriguez, 111 A.3d 775, 779 (Pa. Super. 2015)

(citations omitted).

              When the PCRA court has dismissed a petitioner’s PCRA
       petition without an evidentiary hearing, we review the PCRA
       court’s decision for an abuse of discretion. Commonwealth v.
       Roney, 79 A.2d 595, 604 (Pa. 2013). The PCRA court has
       discretion to dismiss a petition without a hearing when the court
       is satisfied that there are no genuine issues concerning any
       material fact, the defendant is not entitled to post-conviction
       collateral relief, and no legitimate purpose would be served by
       further proceedings. Id. To obtain a reversal of a PCRA court’s
       decision to dismiss a petition without a hearing, an appellant must
       show that he raised a genuine issue of material fact which, if
       resolved in his favor, would have entitled him to relief, or that the
       court otherwise abused its discretion in denying a hearing.

Commonwealth v. Blakeney, 108 A.3d 739, 750 (Pa. 2014).

       Both of Sperry’s claims allege the ineffective assistance of trial counsel.1

To obtain relief under the PCRA premised on a claim that counsel was

ineffective, a petitioner must establish, by a preponderance of the evidence,

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

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

____________________________________________


1 Although Sperry phrased his second issue as a direct challenge to an alleged
deficiency in his guilty plea, Sperry’s supporting argument of this issue
involves the alleged ineffective assistance of counsel. Thus, we will consider
this claim accordingly.


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Commonwealth v. Johnson, 966 A.2d 523, 532 (Pa. 2009). “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) counsel’s act or omission

prejudiced the petitioner. Id. at 533.

       As to the first prong, “[a] claim has arguable merit where the factual

averments, if accurate, could establish cause for relief.” Commonwealth v.

Stewart, 84 A.3d 701, 707 (Pa. Super. 2013) (en banc). “Whether the facts

rise to the level of arguable merit is a legal determination.’”      Id. (citing

Commonwealth v. Saranchak, 866 A.2d 292, 304 n.14 (Pa. 2005).

       As to the second prong of this test, trial counsel's strategic decisions

cannot be the subject of a finding of ineffectiveness if the decision to follow a

particular course of action was reasonably based and was not the result of

sloth or ignorance of available alternatives. Commonwealth v. Collins, 545

A.2d 882, 886 (Pa. 1988).       Counsel's approach must be "so unreasonable

that no competent lawyer would have chosen it." Commonwealth v. Ervin,

766 A.2d 859, 862-63 (Pa. Super. 2000) (citation omitted).

       As to the third prong of the test for ineffectiveness, “[p]rejudice is

established if there is a reasonable probability that, but for counsel’s errors,

the result of the proceeding would have been different." Stewart, 84 A.3d at

707.    “A reasonable probability ‘is a probability sufficient to undermine

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confidence in the outcome.’” Id. (quoting Commonwealth v. Rathfon, 899

A.2d 365, 370 (Pa. Super. 2006).

      Finally, when considering an ineffective assistance of counsel claim, the

PCRA court “is not required to analyze these [prongs] in any particular order

of priority; instead if a claim fails under any necessary [prong] of the

ineffectiveness   test,   the   court   may   proceed   to   that   [prong]   first.”

Commonwealth v. Tharp, 101 A.3d 736, 747 (Pa. 2014) (citations omitted).

In particular, when it is clear that the petitioner has failed to meet the

prejudice prong, the court may dispose of the claim on that basis alone,

without a determination of whether the first two prongs have been met.

Commonwealth v. Travaglia, 661 A.2d 352, 357 (Pa. 1995).

      Sperry inappropriately raises his initial issue for the first time on appeal.

See Pa.R.A.P. 302(a).       Sperry did not raise the applicability of Alleyne

regarding trial counsel’s advice to plead guilty in his amended PCRA petition.

Moreover, trial counsel was not asked about Alleyne during the evidentiary

hearing on that petition. Rather, Sperry raised this claim for the first time in

his amended Rule 1925(b) statement after he appealed the PCRA court’s

dismissal of his petition.       Thus, Sperry’s first issue is waived.         See

Commonwealth v. Watson, 835 A.2d 786, 791 (Pa. Super. 2003) (citation

omitted) (explaining, “[a] party cannot rectify the failure to preserve an issue

by proffering it in response to a Pa.R.Crim.P. 1925(b) order”).




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      In his second claim, Sperry asserts that trial counsel was ineffective for

failing to ensure that the Commonwealth provided a factual basis for his guilty

plea. According to Sperry, “[a]lthough [he] agreed during the [oral] colloquy

that he understood the elements of the crimes charged, the record is clear

that he did not understand which underlying facts which were being applied

to each count of [sic] conviction.”    Sperry’s Brief at 16.    Sperry further

contends he “did not know which crimes applied to which victim under which

circumstances.” Id.

      With regard to the procedure followed regarding the entry of a guilty

plea, this Court has stated:

             Pennsylvania has constructed its guilty plea procedures
          in a way designed to guarantee assurance that guilty pleas
          are voluntarily and understandingly tendered. The entry of
          a guilty plea is a protracted and comprehensive proceeding
          wherein the court is obliged to make a specific
          determination after extensive colloquy on the record that a
          plea is voluntarily and understandingly entered.

Commonwealth v. Yeomans, 24 A.3d 1044, 1046 (Pa. Super. 2011)

(quoting Commonwealth v. Fluharty, 632 A.2d 312, 314 (Pa. Super.

1993)).

      Rule 590(A)(1) of the Pennsylvania Rules of Criminal Procedure requires

that a guilty plea be taken in open court. Regarding plea agreements, Rule

590(B) requires the trial court to “conduct a separate inquiry of the defendant

on the record to determine whether the defendant understands and voluntarily

accepts the terms of the plea agreement on which the guilty plea or plea of



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nolo contendere is based.” Pa.R.Crim.P. 590(B)(2). As noted in the Comment

to Rule 590, at a minimum the trial court should ask questions to elicit the

following information:

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

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

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

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

         (5)   Is the defendant aware of the permissible range 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?

Pa.R.Crim.P. 590, Comment.

      On appeal, this Court evaluates the adequacy of the plea colloquy and

the voluntariness of the resulting plea by looking at the totality of the

circumstances. Yeomans, 24 A.3d at 1047 (citation omitted). “Thus, even

though there is an omission or defect in the guilty plea colloquy, a plea of

guilty will not be deemed invalid if the circumstances surrounding the plea

disclose that the defendant had a full understanding of the nature and

consequences of his plea and that he knowingly and voluntarily decided to

enter the plea.” Id. Under Pennsylvania law, a reviewing court is free to

consider a wide array of relevant evidence in addition to the transcript of the

actual plea colloquy, under the totality-of-the-circumstances standard, to


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determine the validity of a claim and plea agreement, including, but not

limited to transcripts from other proceedings, off-the-record communications

with counsel, and written plea agreements. Commonwealth v. Allen, 732

A.2d 582, 589 (Pa. 1999).

      As noted above, Sperry asserts that his trial counsel was ineffective for

failing to ensure that his oral colloquy included a factual basis for his plea.

The PCRA court found no merit to this claim. In its Rule 1925(a) opinion, the

court discussed in detail the statements made or endorsed by Sperry in the

oral and written colloquies. See PCRA Court Opinion, 10/25/18, at 7-13. The

court then concluded:

            Under the totality of the circumstances herein present
         [Sperry] cannot credibly contend that he was unaware of
         either the charges or factual basis upon which the charges
         for which he was convicted were based.

            The record including the various colloquies that [Sperry]
         signed and initialed repeatedly reference the “charges” and
         “facts” of the case. Additionally, the crimes are specifically
         identified along with their maximum penalties in those
         documents and on the record. The plea demonstrates
         unequivocally that the circumstances surrounding the entry
         of the plea disclose that [Sperry] had a full understanding
         of the nature and consequences of his plea and that he
         knowingly and voluntarily decided to enter the plea.

            Importantly, this was a negotiated plea where [Sperry]
         specifically agreed to plead guilty to certain crimes in
         exchange for a specific sentence which he was given as well
         as the dismissal of multiple other charges and cases. Again,
         this Court cannot accept [] the proposition that [Sperry] was
         unaware of the factual basis of the criminal charges against
         him in multiple cases involving the sexual molestation and
         assault and corruption of minors in circumstances where he
         participated in identifying the charges that he would plead


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         guilty to and the sentence that would be imposed
         (negotiated guilty plea).

PCRA Court Opinion, 10/25/18, at 13-14 (citations omitted).

      Our review of the record supports the PCRA court’s conclusions. After

trial counsel conducted the colloquy of Sperry regarding the crimes to which

he was pleading guilty, the Commonwealth informed the court “the factual

basis of the plea would be the combined affidavits in all three cases.” N.T.,

12/30/13, at 18. Sperry did not object to this statement.         “Although [our

Supreme] Court has stressed its preference for a dialogue in colloquies with

meaningful participation by the defendant throughout, there is no set manner,

and no fixed terms, by which [a] factual basis must be adduced.”

Commonwealth v. Flanagan, 854 A.2d 489, 500 (Pa. 2004). See Fluharty,

632 A.2d at 316 (allowing reference to the affidavit of probable cause as a

substitute for a formal recitation of the factual basis for the plea).

      Moreover, during his testimony at the evidentiary hearing, trial counsel

testified on several occasions that he discussed with Sperry the facts for which

he was entering guilty plea. See N.T., 11/17/15, at 88-99. Indeed, on cross-

examination, trial counsel testified that “the day [Sperry] pled, I went over

the fact to which he was pleading.” Id. at 132. As a matter of credibility, the

PCRA court believed trial counsel’s version of the contested facts. We cannot

disturb this determination.    See Commonwealth v. Harmon, 738 A.2d

1023, 1025 (Pa. Super. 1999) (explaining that when a PCRA court’s




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determination of credibility is supported by the record, it cannot be disturbed

on appeal).

      Finally, Sperry’s reliance upon Flanagan, supra, is misplaced, as the

circumstances in that case are easily distinguishable.     In Flanagan, our

Supreme Court determined that, under the totality of the circumstances,

Flanagan’s guilty plea was invalid “by reason of both an absence of a

contemporaneous record of the factual basis for the plea and the erroneous

accomplice liability instruction.”   Flanagan, 854 A.2d at 500.      Here, the

Commonwealth referenced the affidavits as providing the factual basis for the

guilty plea—facts to which Sperry stipulated. See N.T., 11/17/15 at 99-100;

Fluharty, supra. In addition, while Sperry alleges that he was relying on a

misstatement of law when entering his plea,” Sperry’s Brief at 21, he does not

specifically identify the misstatement.   Thus, the errors recognized by our

Supreme Court in Flanagan, are not present in this case.

      In sum, because Sperry’s claims of ineffectiveness are waived or

otherwise without merit, we affirm the PCRA court’s order denying him post-

conviction relief.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/16/19




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