Commonwealth v. Blackman

COMMONWEALTH OF PENNSYLVANIA v. SETH R. BLACKMAN, JR. Appellant COMMONWEALTH OF PENNSYLVANIA v. SETH R. BLACKMAN, JR. Appellant

Nos. 1308 WDA 2021, 1309 WDA 2021

No. J-S34022-22

Superior Court of Pennsylvania

December 7, 2022

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the PCRA Order Entered October 4, 2021 In the Court of Common Pleas of Allegheny County Criminal Division at CP-02-CR-0002933-2019, CP-02-CR-0003386-2019

BEFORE: DUBOW, J., MURRAY, J., and PELLEGRINI, J. ^[*]

MEMORANDUM

MURRAY, J.

Seth R Blackman, Jr. (Appellant), appeals from the order dismissing his first petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. After careful review, we affirm.^[1]

The PCRA court summarized the procedural history as follows:

On July 2[9], 2020, Appellant … entered a general plea of guilty at two petitions. At CP-02-CR-03386-2019, Appellant pled guilty to one count each of Possession of Firearm Prohibited, Receiving Stolen Property, Possessing a Firearm without a License, Resisting Arrest, Escape, and Possession of Marijuana.^[FN1] At CP-02-CR-02933-2019 Appellant pled [guilty] to one count each of Possession of a Firearm Prohibited, Possessing a Firearm Without a License; two counts of Possession of a Controlled Substance, and one count each of Resisting Arrest, False Identification to Law Enforcement Officer, and Possession of Marijuana.^[FN2] [The trial c]ourt sentenced Appellant to 6-12 years' incarceration in the aggregate on these charges and further sentenced him to a consecutive 3-6 years for a probation violation. Appellant did not file a direct appeal.^[2]

^[FN1] 18 Pa.C.S. §§ 6105(a)(1), 3925(a), 6106(a) (1), 5104, 5121(a), and 35 [P.S.] § 780-113(a)(31), respectively.

^[FN2] 18 Pa.C.S. §§ 6105(a)(1), 6106(a)(1), 35 [P.S.] § 780-113(a)(16), 18 Pa.C.S.[A.] § 5104, 18 Pa.C.S. §§ 4914, 5121(a), and 35 [P.S.] § 780-113(a)(31), respectively.

Instead, Appellant filed a pro se "APPEAL: INEFFECTIVE ASSISTANCE OF COUNSEL," on October [7], 2020. [The PCRA c]ourt appointed counsel, who filed an amended PCRA Petition on March 26, 2021. [The PCRA c]ourt held a hearing on the Petition on September 27, 2021, and on October 4, 2021, dismissed the Petition. Appellant filed a Notice of Appeal on November 3, 2021, and a Concise Statement of Errors Complained of on Appeal on November 23, 2021.

PCRA Court Opinion, 12/14/21, at 2 (two footnotes in original, one footnote added).

Appellant's counsel failed to file an appellate brief. Consequently, this Court issued an order remanding the case for the PCRA court to determine whether

counsel has abandoned Appellant and to take further action as required to protect Appellant's right to appeal. The [PCRA] court shall notify this Court, in writing, within the 30-day period, of all findings and actions taken thereon. JURISDICTION IS RETAINED.

Order, 3/21/22, at 1 (emphasis in original).

On March 28, 2022, while this appeal was pending, PCRA counsel filed a second PCRA petition entitled "POST CONVICTION RELIEF ACT PETITION TO REINSTATE APPEAL NUNC PRO TUNC." That same day, the PCRA court entered an order granting the petition and reinstating Appellant's appeal rights nunc pro tunc.^[3] Appellant did not file a new notice of appeal. By correspondence dated April 13, 2022, the PCRA court advised this Court that PCRA counsel had not abandoned Appellant. Letter, 4/13/22, at 1. On July 11, 2022, Appellant's counsel filed an appellate brief. The Commonwealth thereafter responded.

On appeal, Appellant raises the following issues:

I. Did the [trial c]ourt fail to explain each of the elements of the crimes to which [Appellant] pled guilty?

II. Specifically, did the [trial c]ourt fail to explain to [Appellant] that the Escape charge (18 Pa.C.S. § 5121(a)) required that [Appellant] removed himself or fail [sic] to return from official detention, which he was never subject to before he was arrested for, inter alia, Escape?

III. Was the Guilty Plea Colloquy completed by counsel outside of [Appellant's] presence?

IV. Did [Appellant] enter a guilty plea without an understanding of the nature of the charges to which he was pleading, his plea was entered unintelligently, involuntarily and unknowingly in violation [of the] Due Process Clauses of the Pennsylvania and U.S. Constitutions?

V. Was [Appellant] never specifically informed that part of the offered plea deal included dropping certain charges; instead, [Appellant] was merely informed of the period of incarceration offered by the prosecutor?

Appellant's Brief at 5 (emphasis in original).

Prior to addressing the merits of Appellant's issues, we examine whether the issues are properly before us. Appellant timely filed his pro se PCRA petition alleging ineffective assistance of plea counsel, which did not seek reinstatement of his direct appeal rights. Pro Se PCRA Petition, 10/7/20, at 1-2 (unnumbered).^[4] In his counseled, amended PCRA petition, Appellant expanded on his pro se claims of ineffective assistance of plea counsel, but did not seek reinstatement of his direct appeal rights. Amended PCRA Petition, 3/26/21, at 4-20.^[5] After counsel failed to file an appellate brief, this Court remanded to the PCRA court and retained jurisdiction. We remanded solely for the PCRA court to determine whether counsel had abandoned Appellant. Order, 3/21/22. Despite this Court expressly stating that it was retaining jurisdiction, counsel filed a second PCRA petition. See PCRA Petition, 3/28/22, at 2-6. Appellant titled this petition: "Post-Conviction Relief Act Petition to Reinstate Appeal Rights Nunc Pro Tunc." Id. (caption).

The Pennsylvania Supreme Court has held that a second or subsequent PCRA petition cannot be filed until "the resolution of review of the pending PCRA petition by the highest state court in which review is sought, or upon the expiration of the time for seeking such review." Commonwealth v. Lark, 746 A.2d 585, 588 (Pa. 2000), overruled on other grounds, Commonwealth v. Small, 238 A.3d 1267 (Pa. 2020); but see Commonwealth v. Porter, 35 A.3d 4 (Pa. 2012) (PCRA court may consider second or subsequent PCRA petition where first petition has been held in abeyance at request of petitioner and case is not on appeal). Thus, Appellant's second PCRA petition was improper, as the PCRA court had dismissed Appellant's first PCRA petition, and the appeal therefrom presently is before this Court. See Second PCRA Petition, 3/28/22, ¶¶ 7-8 (recognizing, "By Order dated October 4, 2021, the [first] Petition was denied and dismissed. … [Appellant] timely filed [a] notice of appeal on November 3, 2021." (emphasis added)).

In addition, the PCRA court exceeded the scope of remand by entering its March 28, 2022, order purportedly granting Appellant's petition to reinstate his appeal, nunc pro tunc. It is well settled that following remand, a lower court must strictly comply with this Court's mandate. See Commonwealth v. Null, 186 A.3d 424, 429 (Pa. Super. 2018); see also Gocek v. Gocek, 612 A.2d 1004, 1009 n.7 (Pa. Super. 1992) ("on remand, the scope of inquiry should not exceed the perimeters set forth herein"). Appellant's appeal of the denial of relief on his first PCRA petition remains before us for review. Nevertheless, we may only consider issues raised by Appellant in his pro se and amended PCRA petitions, namely claims of ineffective assistance of counsel.

We note Appellant waived any direct challenge to the validity of his guilty plea because he did not object during the plea colloquy or file a motion to withdraw his plea within 10 days of sentencing. See N.T., 7/29/20, at 2-41; Motion to Reconsider Sentence, 8/7/20, at 2-4. See also Commonwealth v. Lincoln, 72 A.3d 606, 609-10 (Pa. Super. 2013) ("A defendant wishing to challenge the voluntariness of a guilty plea … must either object during the plea colloquy or file a motion to withdraw the plea within ten days of sentencing. Failure to employ either measure results in waiver." (citations omitted)); Pa.R.Crim.P. 720(B)(1)(a)(i). Further, Appellant's first three and one-half issues are also subject to waiver because Appellant could have raised them on direct appeal but did not. See 42 Pa.C.S.A. § 9544(b) ("For purposes of this subchapter, an issue is waived if the petitioner could have raised it but failed to do so before trial, at trial, during unitary review, on appeal or in a prior state postconviction [sic] proceeding."). Thus, we are precluded from considering Appellant's first three issues and part of his fourth issue.

In his fourth and his fifth issues, Appellant argues that plea counsel was ineffective. Appellant's Brief at 25-33. We disagree.

Appellate review of a PCRA court's dismissal of a PCRA petition is limited to the examination of whether the PCRA court's determination is supported by the record and free of legal error. The PCRA court's findings will not be disturbed unless there is no support for the findings in the certified record. This Court grants great deference to the findings of the PCRA court, and we will not disturb those findings merely because the record could support a contrary holding. In contrast, we review the PCRA court's legal conclusions de novo.

Commonwealth v. Maxwell, 232 A.3d 739, 744 (Pa. Super. 2020) (en banc) (citations and quotation marks omitted). A "PCRA court's credibility findings are to be accorded great deference, and where supported by the record, such determinations are binding on a reviewing court." Commonwealth v. Williams, 141 A.3d 440, 452 (Pa. 2016).

For a PCRA petitioner to obtain relief on an ineffectiveness claim, he must establish:

(1) the underlying claim has arguable merit; (2) no reasonable basis existed for counsel's action or failure to act; and (3) he

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