Com. v. Byard (unpublished)
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J-S04029-13 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. THEODORE BYARD Appellant No. 1612 EDA 2012 Appeal from the PCRA Order May 4, 2012 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-1300286-2006; CP-51-CR-1300494-2006 BEFORE: STEVENS, P.J., GANTMAN, J., and LAZARUS, J. MEMORANDUM BY GANTMAN, J.: Filed: January 25, 2013 Appellant, Theodore Byard, appeals from the order entered in the Philadelphia County Court of Common Pleas, denying his first petition brought pursuant to the Post Conviction Relief Act ( PCRA ).1 We affirm. The PCRA court opinion set forth the relevant facts and procedural history as follows: PROCEDURAL HISTORY On January 4, 2008, after the start of a bench trial before the Honorable Renee Cardwell Hughes, [Appellant] entered into a negotiated guilty plea to two counts of first-degree murder (H-1), burglary (F-1), and firearms not to be carried without a license (F-3). That same day, [Appellant] was sentenced on each first-degree murder ____________________________________________ 1 42 Pa.C.S.A. ยงยง 9541-9546. J-S04029-13 charge to the mandatory term of life imprisonment, to be served concurrently. [Appellant] did not file post sentence motions or a notice of appeal. On November 12, 2008, [Appellant] filed a pro se petition pursuant to the [PCRA]. PCRA counsel was appointed and, on June 30, 2009, filed an amended petition on [Appellant] s behalf. The Commonwealth agreed to an evidentiary hearing as to [Appellant] s claim that his right to a direct appeal should be reinstated nunc pro tunc but did not agree as to his request to reinstate his right to file post-sentence motions nunc pro tunc. After a number of continuances, a supplemental amended PCRA petition was filed on March 3, 2011. On January 6, 2012, this Court held an evidentiary hearing on both of [Appellant] s nunc pro tunc claims, and [Appellant] and trial counsel testified. On January 11, 2012, a second supplemental amended PCRA petition was filed. A third supplemental amended petition was filed on February 3, 2012, and the Commonwealth filed a response on March 15, 2012. * * * FACTS On January 4, 2008, after the luncheon recess on the first day of the bench-trial before Judge Hughes, the [c]ourt was informed that [Appellant] desired to enter into a negotiated guilty plea rather than continue with the trial. Notes of Testimony (N.T.) 1/4/08 at 21. An extensive colloquy was conducted by the [c]ourt with [Appellant] where he indicated to the [c]ourt that he was pleading guilty because he was guilty. Id. at 23. He informed the [c]ourt that he discussed his decision with his trial counsel and that he understood the rights he was giving up. Id. at 26. Judge Hughes explained to [Appellant] that this was an extremely serious decision and he could appeal the decision but that he would lose and would spend the rest of his life in prison. Id. at 27. Judge Hughes told [Appellant] that there were limited issues he could raise in an appeal and [Appellant] responded that if he could be placed on death row and have an immediate death he would, but if not he would take life and that he knew what he was saying. Id. at 30. [Appellant] was also asked whether he was on any medicine or if he had taken any -2- J-S04029-13 drugs, illegal drugs, or alcohol in the last two days, to which he responded that he had not. Id. at 33. After the prosecutor relayed the facts of the case and the testimony that would have been presented had [Appellant] continued with the bench trial, [Appellant] informed the [c]ourt that the prosecutor s recitation of the facts was substantially accurate. Id. at 55-56. [Appellant] explained to the [c]ourt that the events surrounding the case occurred because he was going through a lot and began using street drugs, which made him paranoid. Id. at 75. As far as his decision not to go forward with the trial, [Appellant] stated that he did not want it to drag on and did not want him or his family to see the pictures nor did he want anyone thinking that he was trying to beat the case. Id. at 76. [Appellant] stated that this decision was his decision. Id. at 78-79. EVIDENTIARY HEARING On January 6, 2012, an evidentiary hearing was held before this Court as to [Appellant] s claim that he was entitled to have his direct appeal and post-sentence motions rights reinstated nunc pro tunc. [Appellant] testified that he entered into a guilty plea because trial counsel told him that the events that had taken place were too fresh in people s minds and that he (counsel) would file an appeal and get him back in court at a later time. N.T. 1/6/12 at 13, 51. [Appellant] also stated that he was unable to recall what had taken place on the day he entered into a guilty plea because he was on medication and illegal drugs, including PCP, Xanax, Remeron, and Percocet, and that he had lied to Judge Hughes about his drug use. Id. at 14, 67, 108. [Appellant] also asserted that he was innocent of the charges that were brought against him because he shot the two individuals in selfdefense. Id. at 27-28, 29, 34. The prosecutor introduced a letter [Appellant] had written to Judge Hughes, dated February 26, 2008, regarding trial counsel. Id. at 85. In the letter, [Appellant] indicated to Judge Hughes that he had wanted to file a motion for reconsideration but had been hindered in doing so because he did not have access to the law library. In that letter, he also stated that he was told by trial counsel that his appeal -3- J-S04029-13 had already been filed, however, [Appellant] had not heard anything about it. The prosecutor also introduced a letter from trial counsel to [Appellant], dated March 20, 2008, stating that [Appellant] had never requested that a motion for reconsideration be filed and that he never told [Appellant] that an appeal had been filed. Id. at 89. Trial counsel also testified at the evidentiary hearing. Trial counsel stated that he never informed [Appellant] that if he pled guilty he would file some paperwork and get him back into court. Id. at 124-25. Trial counsel indicated that, had [Appellant] requested that he file a motion to withdraw his guilty plea, he would have filed the motion. Id. at 125-26. Trial counsel did not have any knowledge of any communications [Appellant] claimed to have had with him, or his office, requesting that he file an appeal. Id. at 126. This [c]ourt credited trial counsel s testimony and found preposterous [Appellant] s claim that trial counsel, after the sentencing, agreed to file an appeal to get a trial scheduled for a later time. (PCRA Court Opinion, filed July 16, 2012, at 1-4) (footnotes omitted). Based on its review, the PCRA court found Appellant s claims were meritless and dismissed the petition on May 4, 2012. appeal on Monday, June 4, 2012. Appellant timely filed a notice of The court ordered Appellant to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b); Appellant timely complied. Appellant presents one issue for our review: DID THE HONORABLE PCRA COURT ERR WHEN IT DENIED [APPELLANT] RELIEF PURSUANT TO HIS AMENDED PCRA PETITION AND SUPPLEMENTAL PETITIONS AND WHERE THE RECORD REFLECTS THAT [APPELLANT] WAS ENTITLED TO RELIEF AS HE REQUESTED THAT HIS ATTORNEY FILE A MOTION TO WITHDRAW PLEA AND NECESSARY APPEAL BUT ALL WHERE DEFENSE COUNSEL FAILED AND REFUSED TO DO SO? -4- J-S04029-13 (Appellant s Brief at 3). After a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinion of the Honorable M. Teresa Sarmina, we conclude Appellant s issue merits no relief. opinion properly disposes of the question presented. The PCRA court (See PCRA Court Opinion at 5-7) (finding: Appellant failed to show he had asked counsel to file motion to withdraw guilty plea; assertion that Appellant never wanted to plead guilty is unavailing and contradicted by Appellant s own statements at plea colloquy, where he unequivocally expressed desire to plead guilty; Appellant cannot establish he requested counsel to file direct appeal on his behalf, and Appellant s testimony on this subject was not credible). record supports the court s conclusions. The We add that the record from the guilty plea hearings contains no indication Appellant wanted to appeal or communicated his desire to counsel. Based on the events at the guilty plea hearing, including Appellant s confession of guilt and his willingness to accept a life sentence, Appellant cannot show he reasonably demonstrated to counsel that he was interested in appealing. See Roe v. Flores- Ortega, 528 U.S. 470, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000); Commonwealth v. Touw, 781 A.2d 1250 (Pa.Super. 2001). The PCRA court rejected as incredible Appellant s self-serving PCRA testimony that counsel convinced Appellant to plead guilty only because counsel promised to get Appellant back into court at some later date. Appellant s subsequent -5- J-S04029-13 change of heart regarding an appeal occurred nearly two months after sentencing and does not render trial counsel ineffective. affirm on the basis of the PCRA court opinion. Order affirmed. -6- Accordingly, we
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