J-S71015-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    LOANELL ELLINGTON                          :
                                               :
                       Appellant               :   No. 349 EDA 2018

                Appeal from the PCRA Order December 18, 2017
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0002611-2016,
                            CP-51-CR-0011170-2015


BEFORE: PANELLA, J., DUBOW, J., and NICHOLS, J.

MEMORANDUM BY PANELLA, J.:                                 FILED MAY 30, 2019

        Appellant, Loanell Ellington, challenges the order entered in the

Philadelphia County Court of Common Pleas, dismissing his first petition filed

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

9546. Ellington asserts three challenges of ineffective assistance of counsel,

including two layered ineffectiveness claims. We affirm.

        On September 24, 2015,1 Ellington was with Ricky Miller when they got

into an argument. While arguing, Miller struck Ellington in the back of the head

with a vacuum cleaner causing a laceration2. Ellington then retrieved a

butcher’s knife from his truck and returned to attack Miller, stabbing him

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1   This crime relates to docket number CP-51-CR-0011170-2015.

2 At some point, Miller also used a two by four to break out the windows of
Ellington’s truck. See N.T., Guilty Plea Hearing, 5/3/2017, at 14.
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approximately five times in the chest area. At least one of the stabs pierced

Miller’s heart.

        Officers responded and Miller was rushed to the hospital where he

underwent open-heart surgery twice. Ellington arrived at the hospital to

receive medical attention for his head injuries. Upon entering, two police

officers heard Ellington state “I stabbed him.” N.T., Guilty Plea Hearing,

5/3/2017, at 13. Ellington was arrested and subsequently admitted his

involvement3 in a statement given to Philadelphia detectives.

        On February 1, 2016,4 Miller was at his mother’s residence where he

resided, located at 1932 Haines Street in Philadelphia. Ellington and his son,

Loanell Ellington, Jr., arrived at the residence and both threatened to fight

Miller over the previous incident.

        On May 3, 2017, Ellington entered a negotiated guilty plea5 for both

cases. On docket number CP-51-CR-0011170-2015, he pled guilty to

aggravated assault and possession of an instrument of crime (PIC). On docket

number CP-51-CR-0002611-2016, he pled guilty to terroristic threats.



____________________________________________


3The incident, specifically the part where Ellington is attacking Miller with a
butcher knife, was also recorded on video. See N.T., Guilty Plea Hearing,
5/3/2017, at 13.

4   This crime relates to docket number CP-51-CR-0002611-2016.

5 A mental health report and a pre-sentence investigation report were waived
since this was a negotiated plea.



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        The parties agreed on an offense gravity score of 11 and a prior record

score of 5. With the deadly weapon enhancement, the guideline range was

ninety to one-hundred and eight months, plus or minus twelve.

        The trial court imposed the negotiated recommended sentence of ten to

twenty years’ incarceration6 broken down as follows; eight and one half to

seventeen years’ incarceration on the aggravated assault charge to run

concurrently with one to two years’ incarceration on the PIC charge, and one

and a half to three years’ incarceration on the terroristic threats charge, to

run consecutive to the sentence on the first bill.

        Ellington did not file post-sentence motions or a direct appeal. On

September 5, 2017, Ellington filed a timely pro se PCRA petition in which he

claimed ineffective assistance of counsel for failure to file a motion to

reconsider sentence; challenged the fact that his Guilty Plea Colloquy was not

signed and sealed by the court; claimed his guilty plea was not knowing,

intentional and voluntary because the trial counsel misled him; and asserted

his plea was invalid due to his claim of self-defense. Counsel was appointed,

but later filed a Finley7 “no-merit” letter and a motion to withdraw.

        On December 18, 2017, the PCRA court permitted counsel to withdraw

and dismissed the petition. This appeal followed.




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6   The trial court agreed to give Ellington credit for time served.

7   Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988).

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      Ellington’s three claims on appeal all assert ineffective assistance of

counsel. “Our standard of review for issues arising from the denial of PCRA

relief is well-settled. We must determine whether the PCRA court’s ruling is

supported by the record and free of legal error.” Commonwealth v. Presley,

193 A.3d 436, 442 (Pa. Super. 2018) (citation omitted).

      With respect to claims of ineffective assistance of counsel, we begin with

the presumption that counsel is effective. See Commonwealth v. Spotz, 18

A.3d 244, 260 (Pa. 2011). To prevail on an ineffectiveness claim, a petitioner

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) [the petitioner] suffered

prejudice because of counsel's action or inaction.” Id., at 260 (citations

omitted).

      In Ellington’s first issue, he argues trial counsel was ineffective for failing

to file a post-sentence motion to reconsider sentence. Our Supreme Court has

held that the failure to file post-sentence motions does not fall within the

limited ambit of situations where a defendant alleging ineffective assistance

of counsel need not prove prejudice to obtain relief. See Commonwealth v.

Reaves, 923 A.2d 1119 (Pa. 2007). Therefore, Ellington bears the burden of

pleading and proving that trial counsel's failure to file a post-sentence motion

prejudiced him. In other words, Ellington must show that if counsel had filed

a post-sentence motion, it would have been granted. See Commonwealth

v. Liston, 977 A.2d 1089, 1092 (Pa. 2009).

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      In addition, with respect to guilty pleas,

      [o]ur 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 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).

      In a memorandum opinion, the trial court explicitly stated that Ellington

could not have persuaded it to modify the sentence because it was a

negotiated sentence and Ellington entered into the negotiated guilty plea

knowingly, voluntarily and intelligently. See Trial Court Memorandum Opinion,

1/30/2018, at 4. Ellington concedes that he “understood” the nature of the

charges against him and the plea to which he was agreeing, and that he

voluntarily and intelligently entered his guilty plea. See Appellant’s Brief, at

11.




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      Ellington claims that he only plead guilty because his plea counsel

promised him he would only receive a sentence of seven and one half to fifteen

years. However, Ellington testified “No” at his guilty plea hearing in response

to being asked, “Has anyone made you any promises other than the

negotiated recommended sentence to get you to plead guilty in this case?”

N.T., Guilty Plea Hearing, 5/3/2017, at 11-12. He further testified that he was

satisfied with his plea counsel. See id., at 10. In addition, the written colloquy,

which Ellington signed, included a clear statement that “Nobody promised me

anything or threatened me or forced me to plead guilty. I, myself, have

decided to plead guilty. I know what I say today is final.” Written Guilty Plea

Colloquy, 5/3/2017, at 1.

      Ellington is bound by his testimony. See Commonwealth v. Willis, 68

A.3d 997, 1009 (Pa. Super. 2013); Pollard. He may not now argue that this

testimony was false in attempting to establish that his plea was involuntary.

Further, he has offered no evidence to show that he was promised a lower

sentence.

      We therefore agree with the trial court that Ellington has failed to prove

that he was prejudiced by trial counsel's failure to file a post-sentence motion.

Therefore, we agree that Ellington’s claim that counsel was ineffective for

failure to file post-sentence motions is meritless.

      In his second issue on appeal, Ellington argues trial counsel was

ineffective for failing to move to withdraw his guilty plea based on the trial


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court’s failure to sign the written guilty plea colloquy. He includes a layered

ineffectiveness claim as well, arguing PCRA counsel was ineffective for failing

to present trial counsel’s ineffectiveness on this matter.

       Ellington is not entitled to relief on this issue, as he did not preserve the

claim for our review. He did not raise this claim regarding trial counsel in his

PCRA petition. Further, he did not raise this claim regarding PCRA counsel

before the PCRA court. See Commonwealth v. Ford, 44 A.3d 1190, 1201

(Pa. Super. 2012) (“Claims of PCRA counsel ineffectiveness cannot be raised

for the first time after a notice of appeal has been taken from the underlying

PCRA matter.”) As a result, we find this layered ineffectiveness claim waived8.

       In his last issue on appeal, Ellington argues trial counsel was ineffective

for failing to raise a potential self-defense argument. Again, he includes a

layered ineffectiveness claim, arguing PCRA counsel was ineffective for failing

to present trial counsel’s ineffectiveness on this matter.

       It is well settled that when a defendant has entered a negotiated guilty

plea, his “plea ... amounts to a waiver of all defects and defenses except those

concerning the jurisdiction of the court, the legality of the sentence, and the

validity of the guilty plea.” Commonwealth v. Reichle, 589 A.2d 1140, 1141

(Pa. Super. 1991).


____________________________________________


8 We note that although we find this issue waived, we nonetheless would have
found it without merit, as there is no requirement that a written colloquy be
countersigned by the court.


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      Here, both Ellington’s written and oral colloquies demonstrate that his

guilty plea was entered knowingly, intelligently and voluntarily. See

Commonwealth v. Reid, 117 A.3d 777, 783 (entry of negotiated plea is

strong indicator of voluntariness of plea; law does not require that defendant

be pleased with outcome of decision to enter guilty plea, but just that decision

was knowingly, voluntarily and intelligently made). Ellington stated on the

record during his oral guilty plea colloquy that he understood the forms as he

went over them and had ample time to discuss his trial rights and appellate

rights with his attorney. See N.T., Guilty Plea Hearing, 5/3/2017, at 10. He

signed similar statements in the written guilty plea colloquy, which clearly

stated “I HAVE READ ALL OF THE ABOVE, OR MY LAWYER READ IT TO ME. I

UNDERSTAND IT. MY ANSWERS ARE ALL TRUE AND CORRECT.” Written Guilty

Plea Colloquy, 5/3/2017, at 3. The written colloquy also included a statement

that “If I plead guilty, I am giving up the right to defend my case. I cannot

come back to court later and say that I was not guilty. Once I plead guilty, I

can no longer complain that I was innocent and did not commit the crime.”

Id., at 3.

      We find Ellington’s final issue waived, as he knowingly, voluntarily, and

intelligently entered into the guilty plea, and thus the waiver of defenses was

binding. Trial counsel would not have had any basis upon which to raise the

issue of self-defense. As a result, PCRA counsel would have no basis upon

which to raise a claim of trial counsel’s ineffectiveness.


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      As we agree with the PCRA court that none of Ellington’s issues merit

relief, we affirm the PCRA court’s order dismissing his petition for relief.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/30/19




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