J-S44017-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

RICHARD THOMAS TRUETT JR. 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 793 MDA 2022

Appeal from the PCRA Order Entered April 28, 2022

In the Court of Common Pleas of Adams County Criminal Division at 

No(s): CP-01-CR-0000435-2021

BEFORE: PANELLA, P.J., McLAUGHLIN, J., and PELLEGRINI, J.*

MEMORANDUM BY McLAUGHLIN, J.: FILED: APRIL 17, 2023

Richard Thomas Truett, Jr. appeals from the order denying his Post 

Conviction Relief Act (“PCRA”) petition. See 42 Pa.C.S.A. §§ 9541-9546. 

Truett maintains that he is entitled to relief due to ineffectiveness of counsel. 

We affirm.

The PCRA court summarized the facts as follows: 

On September 28, 2020, [Truett] was operating a motor vehicle 

on South Washington Street in Gettysburg Borough in Adams 

County, Pennsylvania. Gettysburg Police Officer Shannon Hilliard 

conducted a traffic stop of [Truett’s] vehicle based upon a 

suspected Motor Vehicle Code Violation. According to Officer 

Hilliard, [Truett] appeared to be under the influence of a controlled 

substance. [Truett] was transported to Gettysburg Hospital where 

a subsequent blood test showed that he had methamphetamine 

in his blood - a Schedule II controlled substance for which he did 

not have a prescription. Officer Hilliard’s affidavit of probable 

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* Retired Senior Judge assigned to the Superior Court.
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cause and the DL-26 form, [Truett’s] Exhibit 2 [(hereafter, 

“consent form”)], note that [Truett] consented to the blood draw.

PCRA Court Opinion, filed April 27, 2022, at 1.

Truett entered a negotiated guilty plea, on July 23, 2021, to driving 

under the influence of a controlled substance, second offense. He was 

sentenced to a term of incarceration of no less than one year to no more than 

five years.

On November 9, 2021, Truett filed a pro se motion to withdraw guilty

plea, which was denied. Approximately one month later, Truett filed the 

instant PCRA petition. The court appointed counsel and held an evidentiary 

hearing on April 19, 2022, after which it denied the petition. This appeal 

followed.1

Truett raises the following issue:

Whether the Post-Conviction Relief court erred by finding prior 

counsel acted within the range of competence demanded of 

attorneys for criminal cases even though Primary Defense Counsel 

failed to discover, raise, and advise Mr. Truett of any possible legal 

challenges, and Plea Counsel failed to advise Mr. Truett of the 

advantages and disadvantages of entering a plea, thus resulting 

in an unknowing plea[?]

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1 The trial court ordered Truett to file a statement of errors complained of on 

appeal pursuant to Pa.R.A.P. 1925(b). Truett’s counsel filed the statement 

late, but the trial court authored an opinion addressing the substance of 

Truett’s claims and urged this Court to excuse Truett’s lateness and consider 

the merits of Truett’s claims. See 1925(a) Opinion, filed 6/30/22, at 1. In

criminal cases, remand, not waiver, results from the late filing of a statement.

See Pa.R.A.P. 1925(c)(3). However, where, as here, the trial court addressed 

the issues raised in a late-filed statement, no remand is necessary, and this 

Court may address the merits of the issues. See Commonwealth v. 

Thompson, 39 A.3d 335, 340 (Pa.Super. 2012).
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Truett’s Br. at 4.

On appeal from the denial or grant of relief under the PCRA, our review 

is limited to determining “whether the PCRA court’s ruling is supported by the 

record and free of legal error.” Commonwealth v. Presley, 193 A.3d 436, 

442 (Pa.Super. 2018) (citation omitted).

Truett argues that he entered an unknowing plea on the advice of 

ineffective counsel. Truett’s Br. at 13. He claims that he did not sign the 

consent form for having his blood drawn, but verbally consented to the blood 

draw only after Officer Hilliard allegedly threatened him with imprisonment if 

he did not consent. Truett therefore argues that his plea counsel should have 

filed a motion to suppress the results of the blood draw and was ineffective 

for failing to do so. Id. at 14. According to Truett, because he relied on 

counsel’s advice when he entered his guilty plea, his plea was unknowing and 

should be withdrawn. Id. at 14-15.

“[C]ounsel is presumed to be effective and the burden of demonstrating 

ineffectiveness rests on appellant.” Commonwealth v. Rivera, 10 A.3d 

1276, 1279 (Pa.Super. 2010). To obtain relief based on a claim of 

ineffectiveness, a petitioner must establish: “(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). Prejudice in this context means that,

“absent counsel’s conduct, there is a reasonable probability the outcome of 

the proceedings would have been different.” Commonwealth v. Velazquez, 
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216 A.3d 1146, 1149 (Pa.Super. 2019) (citation omitted). A failure to meet 

any of these prongs bars a petitioner from obtaining relief. Commonwealth 

v. Sneed, 45 A.3d 1096, 1106 (Pa. 2012).

“[C]laims of counsel’s ineffectiveness in connection with a guilty plea 

will provide a basis for relief only if the ineffectiveness caused an involuntary 

or unknowing plea.” Commonwealth v. Yager, 685 A.2d 1000, 1004 

(Pa.Super. 1996) (en banc). The “voluntariness of [the] plea depends on 

whether counsel’s advice was within the range of competence demanded of 

attorneys in criminal cases.” Commonwealth v. Lynch, 820 A.2d 728, 733 

(Pa.Super. 2003) (quoting Commonwealth v. Hickman, 799 A.2d 136, 141 

(Pa.Super. 2002)). “The law does not require that appellant be pleased with 

the outcome of his decision to enter a plea of guilty[.]” Commonwealth v. 

Diaz, 913 A.2d 871, 873 (Pa.Super. 2006) (citation omitted). “All that is 

required is that [appellant’s] decision to plead guilty be knowingly, voluntarily 

and intelligently made.” Yager, 685 A.2d at 1004 (citation omitted) 

(alteration in original).

Before accepting a plea, the trial court must conduct an on-the-record 

inquiry to determine whether the plea is voluntarily and knowingly tendered. 

Commonwealth v. Hodges, 789 A.2d 764, 765 (Pa.Super. 2002) (citing 

Pa.R.Crim.P. 590(a)). The court must develop a record that affirmatively 

shows that the defendant understands: (1) the nature of the charges to which 

the defendant is pleading guilty; (2) the factual basis for the plea; (3) the 

right to a jury trial; (4) the presumption of innocence; (5) the permissible 
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ranges of potential sentences and fines; and (6) that the court is not bound 

by the terms of the agreement unless it accepts it. Commonwealth v. 

Kelley, 136 A.3d 1007, 1013 (Pa.Super. 2016).

In deciding whether a guilty plea was knowing, intelligent, and 

voluntary, a court should consider the totality of the circumstances 

surrounding the entry of the plea. Commonwealth v. Allen, 732 A.2d 582, 

588-89 (Pa. 1999). Further, a defendant who elects to plead guilty is required 

to answer all questions during the plea colloquy truthfully and may not later 

assert grounds for withdrawing the plea that contradict the defendant’s 

statements during the colloquy. Commonwealth v. Pollard, 832 A.2d 517, 

523 (Pa.Super. 2003).

At the PCRA hearing, Truett admitted that he verbally consented to a 

blood test. N.T., PCRA Hearing, 4/19/22, at 10. Truett testified that he and 

counsel discussed the consent form, but he did not inform counsel of Officer 

Hilliard’s alleged threats of imprisonment if he did not consent to the blood 

draw:

[Commonwealth:] Okay. Now, did you talk to your attorney about 

this?

[Truett:] You mean about -- Yeah.

[Commonwealth:] About the blood draw?

[Truett:] Yes.

[Commonwealth:] Did you talk to him about it?

[Truett:] Yes.

[Commonwealth:] And did you talk to him about -- did you talk to 

him about what Officer Hilliard had said to you?
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[Truett:] No, we didn't have a discussion about that. 

***

[Commonwealth:] So you did talk to him about the [consent] 

form?

[Truett:] Yes, briefly.

[Commonwealth:] But you never talked about Officer Hilliard 

telling you he was gonna [sic] take you to jail?

[Truett:] No.

Id. at 10-11. 

Truett’s counsel testified at the PCRA hearing that Truett raised three 

issues with him during their multiple discussions: the possible unlawful search

of his vehicle, his belief that Officer Hilliard was targeting him, and the initial 

reason for the traffic stop. Id. at 16. Counsel did not recall Truett ever

discussing issues surrounding the blood draw or about any threatened 

incarceration for refusal to consent. Id. at 16-17, 18-19. Counsel stated that 

he reviewed all discovery in the matter, including the consent form. Id. at 19.

He was aware that Truett had not signed it and that instead there was a 

notation made by Officer Hilliard below the signature line that read, “Stated

‘I’ll just do the test’” regarding Truett’s verbal consent. Id. Counsel pointed 

out that Officer Hilliard wrote in the affidavit of probable cause, as well as in 

a more detailed report, that Truett had consented to a blood draw, and that 

simply refusing to sign the consent form does not necessarily mean a refusal 

of a blood draw. Id.
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Truett’s ineffectiveness claim fails. Truett admitted at the PCRA hearing 

that he never raised the issue to his counsel that he verbally consented to the 

blood draw after he had been threatened with imprisonment. See N.T. at 10-

11. Indeed, evidence in the record would lead counsel to conclude that Truett 

did consent, namely Officer Hilliard’s notations in the affidavit of probable 

cause and on the consent form. In addition, the affidavit of probable cause 

stated, “[T]he Suspect/Defendant was not advised of any potential criminal 

charges for failure to submit to the drawing of blood in conjunction with this 

investigation.” Affidavit of Probable Cause, filed 1/19/21, at 2.

Counsel cannot be deemed ineffective for failing to file a suppression 

motion on an issue he was unaware of due to Truett’s failure to inform him

about it. Truett’s further argument on appeal that plea counsel ought to have 

identified other, unspecified “possible suppression challenges” or “possible 

defenses” similarly fails. Truett’s Br. at 14. Truett did not plead, much less 

prove, that counsel unreasonably took, or failed to take, a specific action, and 

as a result Truett sustained prejudice. The PCRA court properly denied the 

PCRA petition.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 04/17/2023
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