Com. v. Bidding (memorandum)
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J. S78004/12 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA v. ANTHONY BIDDING, Appellant : : : : : : : IN THE SUPERIOR COURT OF PENNSYLVANIA No. 32 MDA 2012 Appeal from the Order, November 28, 2011, in the Court of Common Pleas of Luzerne County Criminal Division at No. CP-40-CR-0002208-2008 BEFORE: FORD ELLIOTT, P.J.E., PANELLA AND ALLEN, JJ. MEMORANDUM BY FORD ELLIOTT, P.J.E.: Filed: March 12, 2013 Appellant, Anthony Bidding, comes before us challenging the denial of relief on his first petition filed pursuant to the Post Conviction Relief Act ( PCRA ), 42 Pa.C.S.A. ยง 9541 et seq. Finding no error, we affirm. A brief recitation of the facts and procedural history follow. On October 24, 2005, the police were summoned to 18 Vine Street in Edwardsville for a reported robbery and assault. The resident, Peter Lach, was found bound and beaten on his kitchen floor. Lach was taken to the hospital but died a few days later as a result of his injuries. Initially, the police made little progress on the investigation. However, two years later, one of the perpetrators was arrested on an unrelated matter and made a statement regarding the Lach homicide. The statement led the police to appellant, who admitted going to the Lach residence with two juvenile J. S78004/12 females. The group had planned to break into the home and steal money. However, when they broke in, Lach was present so they bound him with duct tape before taking his money and leaving. Appellant was charged with second and third degree murder and related charges. A plea agreement was reached; appellant would plead guilty to third degree murder and conspiracy to commit burglary and the Commonwealth would withdraw the remaining charges; there was no agreement regarding sentencing. A colloquy was conducted on May 19, 2010, and the court accepted appellant s plea. On July 9, 2010, appellant was sentenced to 240 to 480 months incarceration on the charge of third degree murder and a consecutive 16 to 32 month sentence for conspiracy. (Notes of testimony, 7/9/10 at 21.) On July 16, 2010, a post-sentence motion was filed challenging the discretionary aspects of the sentence; the motion was denied. Thereafter, trial counsel was permitted to withdraw and the court appointed new counsel for appellant. Appellant did not file a direct appeal. Rather, on August 1, 2011, a PCRA petition was filed challenging the voluntariness of appellant s plea and the effective assistance of counsel. (Docket #27.) A PCRA hearing was held; appellant and Michael T. Vough, Esq., the assistant district attorney assigned to appellant s case, testified. -2- J. S78004/12 Appellant averred that he was told if he pled guilty, the Commonwealth would not present any witnesses at sentencing, would not make any statement with regard to sentencing and would not object to any sentence imposed by the court. (Notes of testimony 11/16/11 at 10.) Appellant testified that he would not have pled guilty if not for such a promise. Appellant explained that the written plea agreement stated there was no agreement as to sentence, but acknowledged the agreement was silent regarding the type of things that [appellant] believed that [the prosecutor] agreed he would not be doing at sentencing. (Id. at 13-15.) Appellant, referencing the sentencing transcript, claimed the prosecutor violated the agreement by making statements to the court. (Id. at 14-15.) Additionally, appellant testified that he answered all of the court s questions under oath. (Id. at 20.) He agreed that he had told the sentencing court that he understood the terms of his plea agreement and that no threats or promises had been made to persuade appellant to plead guilty. (Id. at 19-20.) Attorney Vough testified that once a plea agreement had been reached, appellant s defense attorneys had concerns regarding how the Commonwealth would proceed at sentencing. He explained the defense attorneys had concerns about the Commonwealth calling co-defendants to the stand to testify against appellant. (Id. at 27.) They also had concerns -3- J. S78004/12 about the Commonwealth advocating for a maximum sentence on the third degree. (Id.) I, at that point, spoke to them and told them I had no intention of calling any witnesses at sentencing, and I had no intentions of advocating for a specific sentence. I never said I would remain quiet. Obviously at sentencing it is the Commonwealth s job to present some evidence or some argument, but my position with them was I would not call any witnesses at the sentencing, and I would not advocate for a specific sentence being a term of years, and that s the agreement that I had with [defense counsel] prior to [appellant] pleading guilty. Id. Attorney Vough testified that he did not call any witnesses at sentencing and did not advocate for a specific sentence; he did not ask for a minimum or a maximum sentence. (Id. at 28-29.) Attorney Vough explained that he asked the Court to issue a sentence that was commensurate with the crime. (Id. at 28.) On cross-examination, Attorney Vough continually testified that he presented facts to the court it needed to impose a sentence. (Id. at 29-35.) He denied that he had made a side-deal with appellant and again averred that it was an open plea to third degree murder and the defense had concerns that he addressed when telling appellant he would not call witnesses or advocate for a specific sentence. He again explained that it was not a part of the plea agreement. (Id. at 30-31.) Following a PCRA hearing, the court issued an order denying appellant s petitions on November 28, -4- 2011. (Docket #38.) On J. S78004/12 December 27, 2011, appellant filed a notice of appeal from the denial of PCRA relief. (Docket #39.) New counsel was appointed. Appellant complied with the trial court s order to file a concise statement of errors complained of on appeal within 21 days pursuant to Pa.R.A.P., Rule 1925(b), 42 Pa.C.S.A., and the trial court has filed an opinion. Herein, appellant presents the following issues: 1. Did the PCRA Court err as a matter of law and/or abuse its discretion in failing to grant relief in the nature of leave to withdraw Defendant s plea where the record established that the Commonwealth entered into a plea agreement with Defendant and/or made a promise or representation that induced the Defendant s plea and, thereafter, violated the terms of the plea agreement or promise/representation at the time of sentencing thereby causing the Defendant s plea to be involuntary? 2. Did PCRA Counsel render ineffective assistance where he failed to raise Trial Counsel s failure to place [the] promise or plea agreement that induced the Defendant to plea on the record at the time of his plea and Trial Counsel s failure to request that the Defendant be granted leave to withdraw his plea, either by objection at the time of sentencing or by filing a Post-Sentence Motion to Withdraw Plea, where the Commonwealth made a [sic] an agreement, promise or representation that induced the Defendant s plea and then violated that agreement, promise or representation at the time of sentencing thereby rendering the plea involuntary? Appellant s brief at i. Our standard of review of a PCRA court s denial of a petition for post-conviction relief is well settled. We must examine whether the record -5- J. S78004/12 supports the PCRA court s determination, and whether the PCRA court s decision is free of legal error. Commonwealth v. Hall, 867 A.2d 619, 628 (Pa.Super. 2005), appeal denied, 86 Pa. 756, 895 A.2d 549 (2006). The PCRA court s findings will not be disturbed unless there is no support for the findings in the certified record. Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa.Super. 2001). Our scope of review is limited by the parameters of the PCRA. Commonwealth v. Hellman, 867 A.2d 542, 544 (Pa.Super. 2005), appeal denied, 583 Pa. 669, 876 A.2d 393 (2005). The issue before the PCRA court was one of credibility. The PCRA clearly credited the district attorney s testimony that there was nothing in addition to the written plea agreement promised to appellant. court's credibility findings are to be accorded great A PCRA deference. Commonwealth v. Johnson, 600 Pa. 329, 356, 966 A.2d 523, 539 (2009) ( A PCRA court passes on witness credibility at PCRA hearings, and its credibility determinations should be provided great deference by reviewing courts. ). After a thorough review of the record of the guilty plea hearing, the sentencing hearing, the PCRA hearing, the briefs of the parties, the applicable law, and the well-reasoned opinion of the PCRA court, it is our determination that there is no merit to the questions raised. The PCRA court s opinion, filed on May 10, 2012, comprehensively discusses and properly disposes of the first issue presented as well as appellant s allegation in his second issue that guilty plea counsel was ineffective. Accordingly, we -6- J. S78004/12 adopt that opinion as our own and affirm the first issue presented on that basis.1 We now turn to appellant s claim that PCRA counsel rendered ineffective assistance. Recently, in Commonwealth v. Ford, 44 A.3d 1190 (Pa.Super. 2012), this court analyzed four Pennsylvania Supreme Court cases discussing issues of PCRA counsel ineffectiveness when not raised before the PCRA court below. The Ford panel concluded, 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. Id. at 1201. [I]ssues of PCRA counsel effectiveness must be raised in a serial PCRA petition or in response to a notice of dismissal before the PCRA court .... Therefore, we hold that, absent recognition of a constitutional right to effective collateral review counsel, 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. Id. at 1200. Thus, we may not address appellant s claim of PCRA counsel s ineffectiveness. Even if we were to reach the issue, we would conclude that the issue is meritless. Order affirmed. 1 Our review of the sentencing hearing indicates that Officer Hanlon, one of the prosecuting officers, responded to a question posed by the court at the time of sentencing and suggested the court impose the maximum sentence . He was not called as a witness for the Commonwealth; rather, he was present in court and the judge asked him for a sentencing recommendation. The district attorney did not advocate for a particular sentence at the hearing. -7-
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