Opinion
1561 MDA 2022 J-S32012-23
10-02-2023
COMMONWEALTH OF PENNSYLVANIA v. MARK JANTE Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
Appeal from the PCRA Order Entered June 28, 2021 In the Court of Common Pleas of Cumberland County Criminal Division at No(s): CP-21-CR-0001173-2017
BEFORE: DUBOW, J., KUNSELMAN, J., and NICHOLS, J.
MEMORANDUM
DUBOW, J.
Appellant, Mark Jante, appeals from the June 28, 2021 order dismissing his first petition filed pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S. §§ 9541-46, as meritless.
The relevant facts and procedural history are as follows. On July 9, 2018, Appellant, entered an open nolo contendere plea to Aggravated Assault and Involuntary Manslaughter. , At the plea hearing, the trial court conducted a thorough on-the-record colloquy during which Appellant confirmed, inter alia, that he understood the maximum penalties he faced and the rights he was giving up, that he had reviewed the written guilty plea colloquy with counsel, and that he did not have any questions. The court concluded that Appellant's plea was knowing, intelligent, and voluntary, and accepted it.
The Commonwealth had initially charged Appellant with First- and Third-Degree Murder following Appellant's "drunken killing of a friend with a sword." PCRA Ct. Op., 2/23/23, at 1.
Michael Halkias, Esquire, and Catharine Law, Esquire represented Appellant pre-trial and at his plea hearing.
Appellant had also reviewed with counsel and completed a written guilty plea colloquy form.
On September 4, 2018, the court sentenced Appellant to a term of 7½ to 20 years of incarceration for his Aggravated Assault conviction and a consecutive term of 2½ to 5 years of imprisonment for his Involuntary Manslaughter conviction.
On September 14, 2018, Appellant filed a post-sentence motion for reconsideration of sentence in which he requested that the court resentence him to concurrent terms of incarceration based on his belief that "statements made by the District Attorney referencing domestic violence in its argument to the [c]ourt concerning [Appellant's] sentence [were] inflammatory and out of context with the circumstances surrounding this tragic event." Motion, 9/14/18, at ¶ 2. Following a hearing, the trial court denied this motion on November 15, 2018.
In his post-sentence motion, Appellant also sought to withdraw his guilty plea. He subsequently withdrew this request. See Order, 11/15/18; N.T. PCRA H'rg, 6/28/21, at 9, 11-12, 20-21.
Appellant did not file a timely notice of appeal from his judgment of sentence.
On November 18, 2019, Appellant pro se filed a timely first PCRA petition alleging that his plea counsel had been ineffective. The PCRA court appointed Katie J. Maxwell, Esquire, to represent Appellant. It does not appear that Attorney Maxwell filed an amended PCRA petition on Appellant's behalf.
On June 11, 2021, while still represented by Attorney Maxwell, Appellant pro se filed a "Supplement to Petition for Post Conviction Collateral Relief." Accordingly, this pro se filing was a legal nullity. See Commonwealth v. Williams, 151 A.3d 621, 623 (Pa. Super. 2016) (explaining that generally hybrid representation is not permitted in Pennsylvania and pro se motions filed when a petition is represented by counsel are legal nullities). Nevertheless, during their examination of Appellant at the PCRA hearing, both the PCRA court and Attorney Maxwell refer to the averments set forth in the Supplemental Petition as forming the basis of Appellant's request for relief.
Following numerous delays caused by the COVID-19 pandemic, on June 28, 2021, the PCRA court held a hearing on Appellant's petition. Appellant testified at the hearing. In particular, Appellant testified that Attorneys Halkias and Law coerced him into entering the nolo contendere plea: (1) through their "misleading and manipulative representation" that the Commonwealth had offered a negotiated "plea of seven and a half," which meant Appellant "would have been out in six and a half years;" and (2) by failing to explain the elements of the crimes to which he was pleading guilty. N.T. PCRA Hr'g, 6/28/21, at 7-8, 10, 13. Appellant affirmed that he believed the Commonwealth and his counsel had negotiated an aggregate term of 7½ years of incarceration for both his Aggravated Assault and Involuntary Manslaughter convictions. Id. at 11. He testified that he accepted the plea because Attorney Halkias had represented that, because Appellant had already served a year in prison, Appellant would be released after only 6½ additional years. Id. Appellant also testified that his counsel had been ineffective in failing to conduct pre-plea witness interviews. Id. at 13. Last, Appellant testified that he believed the court failed to conduct a proper plea colloquy before accepting Appellant's plea because the court did not inquire as to whether Appellant understood that the sentencing court "is not bound by the terms of any plea agreement unless the [j]udge accepts such agreement[.]" Id. at 15-16.
Appellant claimed that he would not have pleaded guilty to the Aggravated Assault charge if he had known that that offense requires "intent and malice" because his conduct constituted an accident. N.T. PCRA Hr'g, 6/28/21, at 4, 14. Appellant later conceded that he might have discussed the distinct elements of the crimes prior to entering his plea. Id. at 14.
Attorneys Halkias and Law also testified at the PCRA hearing. Attorney Halkias testified that he discussed the elements of the charges with Appellant and explained to him that the plea would be open, which would permit the parties to argue for greater or lesser penalties outside the standard ranges. Id. at 25-28. He explained to the court that he wrote out the possible sentencing scenarios for Appellant to show him what mitigated, standard, and aggravated sentencing ranges would look like, and illustrated the difference between concurrent and consecutive sentences. Id. He also testified that his office prepared a sentencing memorandum for the court and presented family members at the sentencing hearing to support Appellant's case for leniency. Attorney Law's testimony corroborated Attorney Halkias's testimony.
Following the hearing, the PCRA court denied Appellant's petition. This appeal followed. ,
Appellant's first effort to appeal from the PCRA court's order resulted in quashal of the appeal owing to appellate counsel's failure to comply with the Rules of Appellate Procedure. Appellant subsequently sought, and the court granted, reinstatement of Appellant's right to appeal from the dismissal of his PCRA petition. The PCRA court appointed current counsel, William Braught, Esquire, to represent Appellant for purposes of this appeal and ordered Attorney Braught to "file an appeal nunc pro tunc within 30 days[.]" Order, 10/26/22. Attorney Braught complied by filing a notice of appeal on November 9, 2022.
The PCRA court did not order Appellant to file a Rule 1925(b) Statement.
Appellant raises the following issue on appeal:
Whether [Appellant's] plea of [nolo c]ontendere was knowing, intelligent[,] and voluntary when it was based upon trial counsel telling [Appellant] that he would receive [] seven and one-half years as the minimum portion of his sentence[?]
Appellant's Brief at 4.
A.
We review the denial of a PCRA petition to determine whether the record supports the PCRA court's findings and whether its order is otherwise free of legal error. Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014). This Court grants great deference to the findings of the PCRA court if they are supported by the record. Commonwealth v. Boyd, 923 A.2d 513, 515 (Pa. Super. 2007). "We give no such deference, however, to the court's legal conclusions." Commonwealth v. Smith, 167 A.3d 782, 787 (Pa. Super. 2017).
A petitioner may obtain PCRA relief by pleading and proving by a preponderance of evidence "[t]hat the conviction or sentence resulted from . . . [i]neffective 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." 42 Pa.C.S. § 9543(a)(2)(ii). Counsel is presumed effective, and a petitioner has the burden to overcome that presumption by establishing that "(1) his underlying claim is of arguable merit; (2) counsel had no reasonable basis for his action or inaction; and (3) the petitioner suffered actual prejudice as a result." Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014). "To demonstrate prejudice, the petitioner must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different." Id. at 312 (citation and internal quotation marks omitted).
When a defendant pleads guilty, it is well-settled that that decision results in the waiver of all defenses other than those challenging the jurisdiction of the court, the legality of the sentence, or the validity of the plea. Commonwealth v. Jones, 929 A.2d 205, 212 (Pa. 2007). In attempting to challenge a guilty plea, a defendant is "bound by the statements" he made under oath during the plea colloquy and "may not later assert grounds for withdrawing the plea which contradict [those] statements[.]" Commonwealth v. Pier, 182 A.3d 476, 480 (Pa. Super. 2018) (citation omitted).
Under the PCRA, a petitioner may obtain relief by proving that his guilty plea was "unlawfully induced where the circumstances make it likely that the inducement caused the petitioner to plead guilty and the petitioner is innocent." 42 Pa.C.S. § 9543(a)(2)(iii). When claiming ineffectiveness of counsel "in connection with the entry of a guilty plea[,]" a defendant has the burden of demonstrating that the alleged ineffectiveness "caused the defendant to enter an involuntary or unknowing plea." Pier, 182 A.3d at 478 (citation omitted).
B.
Appellant claims that the PCRA court erred in dismissing his petition because his counsel provided ineffective assistance by erroneously informing him that the trial court would impose a minimum sentence of 7½ years of incarceration, and not the 10-year minimum term actually imposed by the court. Appellant's Brief at 8-9. He asserts that he would not have entered his nolo contendere plea had he known that his plea was open and there was no agreement for a 7½ year sentence. Id. at 9.
In its Rule 1925(a) Opinion, the PCRA court explained its decision to deny Appellant relief as follows:
[W]e credited plea counsel's testimony in response to [Appellant's] claims. We found that plea counsel discussed the elements of the charges with [Appellant]. [Counsel] also explained to [Appellant] that the plea was "open" and that the court had discretion on the sentences it might impose. Counsel further explained the potential sentences in the mitigated, standard[,] and aggravated ranges and what those sentences would look like if they were to run consecutively as opposed to concurrently. Moreover, the written and signed plea agreement
did not include any language to suggest that there was a negotiated sentence. Also of significance is the fact that the plea agreement significantly reduced [Appellant's] potential sentence of life imprisonment to a comparatively short term of years.PCRA Ct. Op., 2/22/23, at 5-6. The court, thus, concluded that Appellant "understood the enormity of the benefit he was receiving and the risk he was avoiding by entering his nolo contendere plea." Id. at 6. Accordingly, the court found that Appellant did not meet his burden of proving that his plea was not knowing, intelligent, and voluntary or that counsel had rendered ineffective assistance of counsel in any way.
Following our review of the record, including the notes of testimony from the PCRA hearing, we agree. The record supports the PCRA court's findings that counsel thoroughly explained the terms of Appellant's plea, including that counsel and the Commonwealth had not agreed to a minimum term of incarceration. The PCRA court's legal conclusions are likewise free of error. We, therefore, affirm the court's denial of PCRA relief.
On August 17, 2023, Appellant pro se filed an "Application for Remand pursuant to Comm. v. Bradley to raise PCRA counsel ineffectiveness" in which he requested that this Court remand this matter to the PCRA court for the appointment of substitute counsel. Appellant asserted in the Application that his current counsel, Attorney Braught, has been unresponsive to Appellant's entreaties that counsel file an amended PCRA petition on Appellant's behalf. This claim lacks merit as the PCRA court appointed Attorney Braught to represent Appellant for the limited purpose of this appeal. Moreover, there is no petition pending before the PCRA court. Therefore, Attorney Brought could not have filed an amended PCRA petition as Appellant suggests. In the application, Appellant also asserted that the appellate brief filed by Attorney Braught was "incomplete" and "deficient due to several claims not presented nor properly developed." Application, 8/17/23, at 3. Appellant has, however, not informed this court which claims he believes counsel should have included in the Brief which counsel has failed to properly develop. We, thus, deny Appellant's application for relief.
Judgment Entered.