J-S24025-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

VICTOR BALLARD,

Appellant No. 2715 EDA 2014

Appeal from the PCRA Order entered August 14, 2014,

in the Court of Common Pleas of Bucks County,

Criminal Division, at No(s): CP-09-CR-0001328-2012

BEFORE: GANTMAN, P.J., ALLEN, and MUSMANNO, JJ.

MEMORANDUM BY ALLEN, J.: FILED APRIL 13, 2015

Victor Ballard (“Appellant”) appeals from the order denying his petition 

for relief under the Post-Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. 

sections 9541-46. We affirm.

The PCRA court summarized the pertinent facts as follows:

In December 2010, the Thirty-Second Statewide 

Investigating Grand Jury began hearing evidence 

concerning a large scale heroin distribution ring operating 

in six counties within the Commonwealth—Philadelphia, 

Chester, Delaware, Montgomery, Perry, and Bucks. The 

Grand Jury issued three Presentments: Presentment No. 

2, issued March 23, 2011; Presentment No. 8, issued June 

21, 2011; and Presentment No. 18, issued October 13, 

2011. Those Presentments collectively recommended that 

the Attorney General arrest and prosecute thirty-one 

individuals, including [Appellant], identified as belonging to 

the “Black Widow” heroin distribution ring, for violations of 

the Controlled Substance, Drug, Device, and Cosmetic Act, 

the Corrupt Organizations statute, and other offenses 

under the Crimes Code as a result of the widespread 
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dissemination of heroin stamped “Black Widow” in 

southeast Pennsylvania. During this investigation, 

[Appellant], a.k.a. “VI,” was electronically intercepted on 

numerous occasions ordering large amounts of heroin and 

was observed by police meeting his supplier at a 

prearranged location to make a purchase. The cellphone 

used to arrange these transactions was later found in 

[Appellant’s] possession.

PCRA Court Opinion, 11/12/14, at 1-2 (footnotes omitted).

Appellant’s case was called for trial on March 16, 2012. During jury 

selection, Appellant notified counsel that he wished to accept a plea 

agreement offered by the Commonwealth. Thereafter, Appellant entered 

guilty pleas to multiple drug and drug-related offenses. In return, the 

Commonwealth waived all applicable mandatory sentences and 

recommended an aggregate sentence of 71⁄2 to 15 years of imprisonment. 

That same day, the trial court sentenced Appellant in accordance with the 

plea agreement.

On September 7, 2012, Appellant filed a pro se PCRA petition, as well 

as a supplemental petition on December 17, 2012. On February 22, 2013, 

the PCRA court appointed counsel, and on September 9, 2013, PCRA counsel 

filed an amended PCRA petition. As his sole basis for relief, Appellant 

asserted that he entered an invalid plea because trial counsel coerced him to 

do so, and that he was actually innocent of all charges. On April 14, 2014, 

the PCRA court held an evidentiary hearing, at which both Appellant and trial 

counsel testified. By order entered August 14, 2014, the PCRA court denied 

Appellant’s request for post-conviction relief. The PCRA court subsequently 
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permitted PCRA counsel to withdraw, and the appointed present counsel. 

This timely appeal followed. The PCRA court did not require Pa.R.A.P. 1925 

compliance.

Within his brief, Appellant raises the following issues:

A. Whether the PCRA [court] erred by not finding 

Appellant’s trial [counsel] ineffective for telling Appellant 

that he will get “a hundred years” for a sentence, well 

above [] Appellant’s guidelines.

B. Whether the PCRA [court] erred by not finding 

Appellant’s trial [counsel] ineffective for coercing Appellant 

to plead guilty by repeatedly urging [him] to plead guilty, 

thus creating a “brain washed” effect.

Appellant’s Brief at 4.

In reviewing the propriety of an order granting or denying PCRA relief, 

an appellate court is limited to ascertaining whether the record supports the 

determination of the PCRA court and whether the ruling is free of legal error. 

Commonwealth v. Johnson, 966 A.2d 523, 532 (Pa. 2009). We pay great 

deference to the findings of the PCRA court, “but its legal determinations are 

subject to our plenary review.” Id. Moreover, to be entitled to relief under 

the PCRA, the petitioner must plead and prove by a preponderance of the 

evidence that the conviction or sentence arose from one or more of the 

errors enumerated in section 9543(a)(2) of the PCRA. One such error 

involves the ineffectiveness of counsel.

To obtain relief under the PCRA premised on a claim that counsel was 

ineffective, a petitioner must establish by a preponderance of the evidence 
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that counsel's ineffectiveness so undermined the truth-determining process 

that no reliable adjudication of guilt or innocence could have taken place. 

Johnson, 966 A.2d at 532. “Generally, counsel’s performance is presumed 

to be constitutionally adequate, and counsel will only be deemed ineffective 

upon a sufficient showing by the petitioner.” Id. This requires the petitioner 

to demonstrate that: (1) the underlying claim is of arguable merit; (2) 

counsel had no reasonable strategic basis for his or her action or inaction; 

and (3) petitioner was prejudiced by counsel's act or omission. Id. at 533. 

A finding of “prejudice” requires the petitioner to show “that there is a 

reasonable probability that, but for counsel’s unprofessional errors, the 

result of the proceeding would have been different.” Id. Counsel cannot be 

deemed ineffective for failing to pursue a meritless claim. Commonwealth 

v. Loner, 836 A.2d 125, 132 (Pa. Super. 2003) (en banc).

In both of his issues, Appellant argues that trial counsel’s 

ineffectiveness led him to enter an invalid plea. Appellant claims that, 

“[d]espite Appellant’s statements during his guilty plea colloquy, his ability 

to recognize that he was coerced, involuntary, and unknowing [sic] did not 

arise until proper reflection over time.” Appellant’s Brief at 8. Appellant 

further asserts that, “[u]pon proper reflection, [he] believes that the 

improper suggestions by trial counsel that Appellant would get a significant 

prison sentence combined with consistent representation that [he] should 

plead guilty gives rise to an unknowing plea that is caused by ineffective 
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counsel.” Id. According to Appellant, “[g]iven this tragic combination, the 

[PCRA court’s] decision denying relief should be reversed.” Id. We 

disagree.

When asserting a claim of ineffectiveness of counsel in the context of a 

guilty plea, a defendant must show that plea counsel’s ineffectiveness 

induced him to enter the plea. Commonwealth v. Johnson, 875 A.2d 328, 

331 (Pa. Super. 2005). This Court stated:

Because a plea of guilty effectively waives all nonjurisdictional defects and defenses, after sentencing, 

allegations of ineffectiveness of counsel in this context 

provide a basis for withdrawal of the plea only where there 

is a causal nexus between counsel’s ineffectiveness, if any, 

and an unknowing or involuntary plea. The guilty plea 

hearing becomes the significant procedure under scrutiny. 

The focus of the inquiry is whether the accused was misled 

or misinformed and acted under that misguided influence 

when entering the guilty plea.

Commonwealth v. Flood, 627 A.2d 1193, 1199 (Pa. Super. 1993) 

(citations omitted).

Further, this Court summarized: 

Our 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 
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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).

The PCRA court explained why his exchange with Appellant during the 

guilty plea colloquy established the validity of Appellant’s guilty plea. See

PCRA Court Opinion, 11/12/14, at 4-6, citing notes of testimony from the 

3/16/12 plea hearing. Our review of the guilty plea transcript supports the 

PCRA court’s conclusions that Appellant testified that no one forced him to 

enter his guilty plea, no one promised him anything in exchange for his plea 

other than the recommended sentence, and that he had sufficient time to 

speak with trial counsel about the case.1 In addition, Appellant agreed to 

the factual basis for his plea. See N.T., 3/16/12, 29-40.

____________________________________________

1 According to Appellant, trial counsel “admitted at the time of the plea that 

there were portions of the plea that had not been covered in his 

representation.” Appellant’s Brief at 11. To support this contention, 

Appellant takes a singular “No” answer out of context. See N.T., 3/16/12, 

at 301. Nevertheless, Appellant informed the trial court that he had 

sufficient time to discuss these aspects of his case with trial counsel and that 

he was satisfied with the quality of trial counsel’s representation. See id., 

at 31.

(Footnote Continued Next Page)
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Appellant’s answers to the trial court’s inquiry during the guilty plea 

colloquy contradict Appellant’s claims in his amended PCRA petition. The 

fact that at the PCRA hearing Appellant admitted that he lied to the court, 

see N.T., 4/14/14, at 42, does not provide a basis for post-conviction relief. 

Pollard, supra.

The PCRA court summarized the conflicting testimony presented by 

Appellant and his trial counsel at the PCRA hearing as follows:

During the PCRA hearing, [Appellant] testified that he is 

innocent of the charges to which he pled guilty. He 

asserted that he was coerced into pleading guilty, and that 

[trial counsel] “basically like brainwashed me to plead 

guilty” by repeatedly advising him to “plead guilty because 

you are not going to win.” [Appellant] also testified that 

counsel told him, “If you go to trial, you will get 100 years 

- - I don’t recall, but he said a lot of time.”

***

Trial counsel testified that he recommended to 

[Appellant] that he plead guilty based on the strength of 

the Commonwealth’s evidence, including the audio 

recordings and visual surveillance. He testified that 

although [Appellant] was initially strongly opposed to 

pleading guilty because he believed that there was 

insufficient evidence to establish that he possessed any 

drugs, his stance began to change following receipt of 

supplemental discovery that placed [Appellant] in 

possession of the telephone used during the drug 

transactions. Trial counsel testified that, following the 

receipt of supplemental discovery, [Appellant] then wanted 

counsel to negotiate a plea agreement. After negotiations 

and immediately before jury selection, the Commonwealth 

made a final offer to recommend a lesser sentence than 

(Footnote Continued) _______________________
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had previously been offered. Trial counsel testified that he 

was prepared for trial and, in fact, had begun jury 

selection. He testified that, in the middle of jury selection, 

[Appellant] passed him a note that stated, “I will take the 

deal.” 

PCRA Court Opinion, 11/12/14, at 3-4; 6-7 (footnotes omitted).

The PCRA court then addressed Appellant’s specific claim regarding his 

possible sentence:

It is important to note that this Court also found the 

testimony of [Appellant’s trial counsel] to be credible as 

opposed to that of [Appellant].

***

[Appellant] asserts on appeal that this Court “erred by 

not finding [trial counsel] ineffective for telling [him] that 

he will get ‘a hundred years’ for a sentence, well above 

[Appellant’s] guidelines.” This argument is not supported 

by the record. [Appellant] testified that trial counsel told 

him, “If you go to trial, you will get 100 years – I don’t 

recall but he said a lot of time.” It is therefore not at all 

clear what, if anything, counsel allegedly said to 

[Appellant] regarding sentencing. What is clear is that 

[Appellant] was, in fact, facing “a lot of time.” 

[Appellant’s] maximum exposure, if convicted of all 

charges, was 120 to 240 years. [N.T., 4/14/14, at 3.] 

Trial counsel cannot be deemed ineffective for advising 

[Appellant] of the applicable maximum sentence.

***

Given the nature of the drug organization involved, the 

degree of [Appellant’s] involvement in the organization 

and his substantial criminal history, which included

convictions for both crimes of violence and drug 

distribution, it would be more than appropriate for trial 

counsel to advise [Appellant] to expect a lengthy sentence 

if convicted. Trial counsel cannot be found to be 

ineffective for giving accurate and indispensable 

information to [Appellant] in making an informed decision 
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as to whether to accept or reject the offered plea 

agreement.

PCRA Court Opinion, 11/12/14, at 6; 7; 8 (footnotes omitted).

Once again, our review of the record supports the PCRA court’s 

conclusions. The PCRA court credited the testimony of counsel over the 

testimony and allegations made by Appellant at the PCRA hearing. We 

cannot disturb this determination. See Commonwealth v. Battle, 883 

A.2d 641, 648 (Pa. Super. 2005) (explaining that credibility determinations 

are solely within the province of the PCRA court). 

Additionally, within his brief, Appellant refers to secondary sources, 

such as law review and other articles, to support his claim that “his assertion 

that his plea was not voluntary and was unknowing is supported by 

academia and his own trial counsel.” Appellant’s Brief at 12. As noted 

supra at n.1, the record refutes Appellant’s characterization of trial 

counsel’s testimony. To the extent Appellant cites to “academia” sources, 

this claim was not presented to the PCRA court and is therefore waived on 

appeal. See generally, Pa.R.A.P. 302(a).

Based on the foregoing, we affirm the PCRA court’s order denying 

Appellant post-conviction relief.

Order affirmed.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/13/2015