J

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NON

- PRECEDENTIAL DECISION

- SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

STEVEN HOLMES

Appellant :

:

:

:

:

:

:

:

: IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 277 EDA 2020

Appeal from the PCRA Order Entered December 12, 2019

In the Court of Common Pleas of Montgomery County Criminal Division

at No(s): CP

- 46

- CR

- 0006549

- 2017

BEFORE: BENDER, P.J.E., SHOGAN, J., and STRASSBURGER, J. *

MEMORANDUM BY BENDER, P.J.E.: FILED : MARCH 8, 2021

Appellant, Steven Holmes, appeals from the post

- conviction court’s

December 12, 2019 order denying his timely

- filed petition under the Post

Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541

- 9546. Appellant argues that

his gui lty plea was not knowing, intelligent, and voluntary, and that his plea

counsel was ineffective for not objecting to the defective plea colloquy. After

careful review, we affirm.

The PCRA court summarized the pertinent facts and procedural history

of App ellant’s case, as follows:

[Appellant] pleaded guilty on April 9, 2018, to a single count of

voluntary manslaughter 3 and received a negotiated sentence of 10

to 20 years in prison. He admitted that on July 30, 2017, in

Pottstown, Montgomery County, he got into a fistfight with

Diamonde Stone. [] N.T., ... Plea [/Sentencing] , 4/9/18, [at] 14[.]

At some point during the fight, or after the two had been

separated, [Appellant] stabbed Stone with a knife. Id.

_________________ __________ ______ ____ _______

* Retired Senior Judge assigned to the Superior Court.J

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[Appellant] further testified that he had no lawful justification for

stabbing Stone[,] and that[] he was aware Stone had died. Id.

at 15. When the Commonwealth asked [Appellant] if the stabbing

had resulted because he was caught up i n the heat of an

argument, [Appellant] stated:

Um, not exactly...

. I was being pinned down by him and two

other fellows and my girlfriend was being stomped. Carolyn

Ayala, she was being stomped. And[,] in order to get the

beating stopped, I stabbed him.

Id.

3 18 Pa.C.S. § 2503(a)(1) (“A person who kills an individual

without lawful justification commits voluntary manslaughter

if at the time of the killing he is acting under a sudden and

intense passion resulting from serious provocation by ... the

individual killed.”). [Appellant] had been charged with

first[

- ]degree murder, third[

- ]degree murder[,] and

possession of an instrument of crime (“PIC”). As part of the

negotiated plea agreement, the Commonwealth amended

the PIC charge to voluntary manslaughter and nol prossed

the remaining two charges.

Later in the plea proceeding, this court recited the elements of

voluntary manslaughter and [Appellant] admitted to doing all of

the things necessary to commit the offense. Id. at 17. He also

stated during the plea proceeding that the victim “didn’t deserve

that.” Id. at 26.

[Appellant] did not file a post

- sentence motion or a direct appeal,

thereby making his judgment of sentence final on or about May 9,

2018. He filed a pro se PCRA petition on or about November 19,

2018.

Appointed PCRA counsel filed an amended petition [,] claiming the

guilty plea colloquy was defective because [Appellant] had made

a statement suggestive of a self

- defense claim, without any

follow

- up by the pros ecutor, plea counsel [,] or the court. The

amended petition further asserted that plea counsel had been

ineffective in failing to object to the colloquy.

The Commonwealth filed an answer and motion to dismiss [,]

arguing, inter alia , that [Appellant] admitte d during questioning

by this court that he had done all the things necessary to commit

the offense of voluntary manslaughter. This court issued aJ

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[Pa.R.Crim.P. 907] notice of intent to dismiss and PCRA counsel

filed a response. In an abundance of caution, this court held a

hearing on the amended petition, at which [Appellant] initially

intended to rely on the notes of testimony from the guilty plea

proceeding [,] but later also presented testimony from himself.

Following the hearing, PCRA counsel provided t his court with a

copy of Commonwealth v. Flanagan , 854 A.2d 489 (Pa. 2004),

which [Appellant] relied on for the propositions that there could

be no conceivable basis for plea counsel to have acquiesced to a

patently defective plea colloquy [,] and that a ma nifest injustice

occurs when a defendant enters a plea without a basic

understanding of the legal principles giving rise to criminal

responsibility. [PCRA] counsel further indicated he also was

relying on the other cases 4 cited in his response to the notice of

intent to dismiss.

4 Commonwealth v. Roundtree , 269 A.2d 709 (Pa.

1970), Commonwealth v. Blackman , 285 A.2d 521 (Pa.

1971), Commonwealth v. Thompson , 351 A.2d 280 (Pa.

1976), Commonwealth v. Buhl , 396 A.2d 704 (Pa. Super.

1978); Commonwealth v. G uyton , 480 A.2d 330 (Pa.

Super. 1984), Commonwealth v. Fluharty , 632 A.2d 312

(Pa. Super. 1993), and Commonwealth v. Jones , 640

A.2d 1330 (Pa. Super. 1994). The Commonwealth relied on

Commonwealth v. Mallory , 941 A.2d 686 (Pa. 2008), and

Commonwealth v. S potz , 18 A.3d 244 (Pa. 2011), for the

proposition that the instant case does not involve per se

ineffectiveness and, as a result, the claim must be analyzed

under the three

- prong test of arguable merit, lack of

reasonable basis and prejudice.

Upon consider ation of the evidence presented at the PCRA

hearing, the case law cited by the parties and an independent

review of the record, this court denied the amended petition.

[Appellant] appealed [,] and subsequently complied with this

court’s directive to produce a concise statement of errors in

accordance with Pennsylvania Rule of Appellate Procedure

1925(b).

PCRA Court Opinion (PCO) , 3/5/20, at 1

- 4. The PCRA court filed its Rule

1925(a) opinion on March 5, 2020.

Herein, Appellant states three issues for our re view:J

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I. Whether ... [Appellant ’s ] assertion, during his guilty plea, of

facts which, if believed, would establish a viable claim of self

defense, vitiates the knowing, intelligent, and voluntary nature of

... [Appellant ’s ] plea in the absence of any subsequent on

- the

record inquiry by the [c]ourt or counsel as to

... [Appellant ’s ]

understanding of the availability of an affirmative defense?

II. Whether counsel was ineffective for acquiescing in the patently

defective guilty p lea colloquy?

III. Whether Appellant waived his challenge to the validity of his

plea resulting from ineffective assistance of counsel by not filing a

post

- sentence motion or direct appeal?

Appellant’s Brief at 4.

Initially, we note that:

“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.

Commonwealth v. Matias , 63 A.3d 807, 810 (Pa. Super. 2013).

In Appellant’s first issue, he contends that his guilty plea was

unknowing, unintelligent, and/or involuntary because, after he made

statements indicating that he had a self

- defense claim, the court failed to

“advise [him] that the defense, if established, would entitle him to an

acquittal, [and] also that his act of entering a plea precluded any further

opportunity of asserting his defense.” Appellant’s Brief at 13 (quoting

Commonwealth v. Thompson

, 351 A.2d 280, 283 (Pa. 1976)). He also

maintains that h is plea colloquy was defective because it did not set forth aJ

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sufficient factual basis to establish that he possessed the mens rea necessary

to be guilty of voluntary manslaughter. Id. at 17.

We agree with the PCRA court th at Appellant waived these challenges

to the validity of his plea

. See PCO at 5. Appellant failed to file with the trial

court a motion to withdraw his plea based on th ese alleged defect s in the plea

colloquy. To be eligible for post

- conviction relief, the petitioner must

demonst rate “[t] hat the allegation of error has not been previously litigated

or waived.” 42 Pa.C.S. § 9543(a)(3). “[A]n 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 post[

- ]conviction proceeding.” 42 Pa.C.S.

§ 9544(b). Because here, Appellant could have raised his challenge to the

allegedly defective colloquy at the time of his plea, or in a post

- sentence

motion to withdraw his plea, his failure to do so waives this claim for our

review.

Appellant’s next two issues are interrelated and, thus, we will address

them together. He argues that his plea counsel was ineffective for failing to

object to the ostensibly defective plea colloquy on the basis that he expressed

a potential self

- defense claim, yet the court failed to advise him that he could

potentially be acquitted if he asserted such a defense at trial. He claims that

he has “established that a manifest injustice occurred by the trial court’s

acceptan ce of [his] plea,” and that counsel could have had no reasonable basis

for not objecting. Appellant’s Brief at 18. Appellant further asserts that he

did not waive this ineffectiveness claim for our review.J

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Initially, we agree with Appellant that his issue was preserved by his

filing of a timely PCRA petition. In Commonwealth v. Holmes , 79 A.3d 562

(Pa. 2013), our Supreme Court reaffirmed its prior holding in

Commonwealth v. Grant , 813 A.2d 726 (Pa. 2002), that, absent certain

circumstances, claims of ineffective assistance of counsel should be deferred

until collateral review under the PCRA. Holmes , 79 A.3d at 576. The specific

circumstances under which ineffectiveness claims may be addressed on direct

appeal are not present in the instant case. Se e id. at 577

- 78 (holding that

the trial court may address claim(s) of ineffectiveness where they are “both

meritorious and apparent from the record so that immediate consideration

and relief is warranted,” or where the appellant’s request for review of “pr olix”

ineffectiveness claims is “accompanied by a knowing, voluntary, and express

waiver of PCRA review”). Thus, Appellant did not waive his ineffectiveness

claim by not raising it in a post

- sentence motion or on direct appeal.

In addressing the merits o f Appellant’s ineffectiveness argument, we are

mindful that

,

[a] criminal defendant has the right to effective counsel during a

plea process as well as during trial. A defendant is permitted to

withdraw his guilty plea under the PCRA if ineffective assist ance

of counsel caused the defendant to enter an involuntary plea of

guilty

.

We conduct our review of such a claim in accordance with

the three

- pronged ineffectiveness test under section

9543(a)(2)(ii) of the PCRA, 42 Pa.C.S.[] § 9543(a)(2)(ii).

The voluntariness of the plea depends on whether counsel’ s

advice was within the range of competence demanded of

attorneys in criminal cases.J

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- In order for [an a] ppellant to prevail on a claim of ineffective

assistance of counsel

, he must show, by a preponderance of

the evidence, ineffective assistance of counsel which, in the

circumstances of the particular case, so undermined the

truth

- determining process that no reliable adjudication of

guilt or innocence could have taken place. [An a] ppellant

must demonstrate: (1) the underlying claim is of arguable

merit; (2) that counsel had no reasonable strategic basis for

his or her action or inaction; and (3) but for the errors and

omissions of counsel, there is a reasonable probability that

the outcome of the proceedings would have been different.

The petitioner bears the burden of proving all three prongs

of the test.

Moreover, trial counsel is presumed to be effective.

Commonwealth v. Rathfon

, 899 A.2d 365, 369 ( Pa. Super. 2006) (cleaned

up).

In support of his ineffectiveness argument, Appellant relies solely on

Flanagan

. There, Flanagan pled guilty to murder and robbery. He claimed

,

on collateral review, that his plea counsel had been ineffective by failing to

object to the defective plea colloquy on the basis that the court had provided

a “materially erroneous statement of the controlling law” in advising Flanagan

that his status as an accomplice made him vicariously liable for any crimes

committed by the principle. 1 Id. at 501. The colloquy also failed to provide

an adequate factual basis for the plea. Id. at 500. Based on the totality of

these circumstances, our Supreme Court agreed with Flanagan that “the

colloquy supporting [his] pleas was defective, by reason of both an absence

_________________ __________ ______ ____ _______

1 This was erroneous because a person must act with the requisite mens rea

to be convicted as an accomplice. See Flanagan , 854 A.2d at 501; 18 Pa.C.S.

§ 306(d).J

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of a contemporaneous record of the factual basis for the plea and the

erroneous accomplice liability instruction.” Id.

The Flanagan Court then stressed that,

[i]n terms of the other requirement for relief based on

ineffectiveness, lack of reasonable ba sis, there is no reason that

we can conceive of which would justify plea counsel’s

acquiescence in the patently defective colloquy under review in

this case. Moreover, the PC[R]A court made an express credibility

finding rejecting plea counsel’s proffered excuse for not insisting

on an adequate colloquy.

Indeed, it is difficult to hypothesize a more concrete example of a

facially defective colloquy, and correspondingly legally unknowing

plea, than a circumstance in which the plea court causes the

[Appellant] to affirm a materially erroneous understanding of the

substantive law establishing criminal liability on the offenses

charged. By supplying the wrong legal framework against which

to assess the facts, the plea court exacerbated the effect of the

substantial deficiency arising out of its failure to adduce the factual

basis and rendered the plea unknowing on the face of the record

presented.

Id. at 502 (internal citations omitted).

Appellant now claims that, as in Flanagan

, he has “established that a

manifest injustice occurred by the trial court’s acceptance of [his] plea,” and

he “is entitled to relief under the [PCRA] permitting him to withdraw his plea.”

Appellant’s Brief at 18. In rejecting Appellant’s argument

, the PCRA court

focused on the fact that Appellant did not demonstrate his plea counsel acted

unreasonably by not objecting to the allegedly defective colloquy. The court

noted that

, unlike in Flanagan

, plea counsel had not been called to testify at

Appellant’s PCR A hearing. See PCO at 5

. The court pointed out that Appellant

had received a favorable plea deal, by which heJ

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pleaded guilty to an amended charge of voluntary manslaughter

in exchange for the Commonwealth[’s] agreeing not to proceed

with more serious charges of first

- and third

- degree murder. He

also avoided the potential for a sentence of life imprisonment, had

he been found guilty of first[

- ]degree murder. As such, plea

counsel may have had a reasonable basis for not addressing

[Appellant’s] statement at the plea hearing, and [Appellant] did

not carry his burden at the PCRA hearing of proving otherwise.

Id. at 8

- 9.

On appeal, Appellant argues that

, under the rationale of Flanagan , he

did not need call his counsel to testify to establish the unreasonableness of

her failure to object

. According to Appellant, Flanagan holds that “[t]here

can be no reasonable basis for counsel to fail to object to a patently defective

colloquy [,] which facilitates a defendant’s entry of an unkn owing and

unintelligent plea.” Appellant’s Brief at 20 (citing Flanagan

, 854 A.2d at 502).

Appellant further insists that “plea counsel’s testimony at the evidentiary

hearing in Flanagan played no role in the Court’s decision [,]” and that “the

Flanagan Court made clear that there was nothing that counsel could testify

to[] which would constitute a reasonable basis for failing to object to the

patently defective colloquy.” Id.

Appellant ’s reading of Flanagan is incorrect

. The Flanagan Court did

not hold that an attorney can never have a reasonable basis for failing to

object to a defective plea colloquy. Rather, the Court held that there was no

conceivable reason that “would justify plea counsel’s acquiescence in the

patently defective coll oquy under review in this case .” Flanagan , 854

A.2d at 502 (emphasis added)

. Were the defects in Appellant’s plea colloquyJ

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the same as those in Flanagan

, we would find more compelling his argument

that his plea counsel’s testimony was unnecessary to pro ving her

ineffectiveness

. However, unlike in Flanagan

, Appellant does not claim that

the court misstated the law during his colloquy

, and there was also a sufficient

factual basis for his plea to voluntary manslaughter.

In the latter regard, we reject Appellant’s assertion that the facts failed

to establish the mens rea for voluntary manslaughter

. “A person who kills an

individual without lawful justification commits voluntary manslaughter if[,] at

the time of the killing[,] he is acting under a sudden and intense passion

resulting from serious provocation by

... the individual killed[.]” 18 Pa.C.S. §

2503(a)(1). At Appellant’s plea colloquy

, the court and Appellant had the

following exchange:

[The Court:] [The criminal information] reads as follows: That you

did kill Diamonde Stone without lawful justification while acting

under a sudden and intense passion resulting from serious

provocation by Diamonde Stone. Is that correct?

[Appellant:] That’s correct, sir.

[The Court:] Those are the facts you are pleading guilty to?

[Appellant:] I am.

N.T. Plea/Sentencing, 4/9/18, at 17. The facts admitted by Appellant were

sufficient to establish that he committed voluntary manslaughter. Therefore,

the defects in his colloquy were not the same as those in Flanagan

.

Moreover, the PCRA court discerned that counsel

may have had a reasonable, strategic basis for not following up

on [Appellant’s] statement [indicating that he may have acted in

self

- defense]

. [Appellant] received a favorable plea agreementJ

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that removed the possib ility of a first

- degree murder conviction

and life in prison in exchange fo r a sentence of 10 to 20 years.

Without plea counsel’ s testimony, however, [Appellant] did not

carry his burden of proving the lack of a reasonable basis.

Notably, and while not raised by the parties at the PCRA hearing,

a review of the transcript from [Appellant ’s ] preliminary hearing,

which was filed of record in this case, demonstrates that plea

counsel knew of [Appellant ’s] claim that his girlfriend was being

assaulted during the incident. [] N.T., Prel iminary Hearing,

9/29/17, p. 23[.] This is not a case, therefore, where plea

counsel failed to act after [Appellant] testified to new information

that was suggestive of a possible defense. Instead, plea counsel

was aware of the possible defense [,] and [Appellant] did not carry

his burden of proving plea counsel lacked a reasonable basis for

her challenged inaction.

PCO at 10

- 11 ( footnotes omitted)

. The court also found that Appellant “did

not present credible evidence at the PCRA hearing that he and his plea counsel

did not discuss the potential for a self

- defense claim prior to the guilty plea

hearing.” Id. at 9 (footnote omitted).

Based on th is record, we discern no error or abuse of discretion in the

PCRA court’s rationale. Appellant did not call his plea counsel to the stand at

the evidentiary hearing so she could explain her reasons for not objecting to

the alleged defect in his colloquy. M ore recently than Flanagan , o ur Supreme

Court has declared that “a lawyer should not be held ineffective without first

having an opportunity to address the accusation in some fashion.”

Commonwealth v. Koehler , 36 A.3d 121, 132 (Pa. 2012) (quoting

Commonwe alth v. Colavita , 993 A.2d 874, 895 (Pa. 2010) ) . While there

may be cases where the absence of a reasonable strategy is uncontested,

there is “a strong preference that counsel be heard from before being foundJ

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ineffective.” Colavita , 993 A.2d at 895. “The ultimate focus of an

ineffectiveness inquiry is always upon counsel, and not upon an alleged

deficiency in the abstract.” Id. at 896. The Colavita Court also stressed that,

it is particularly problematic to render an appellate finding of p er

se unreasonableness in a case where the PCRA judge, whose

decision was under review, discerned a reasonable strategy from

the trial record alone and, for good measure, the PCRA judge also

presided at trial. At a minimum, these circumstances should at

l east have given the panel pause before rendering its per

se finding.

Id. at 895.

In this case, the PCRA court , who also presided over Appellant’s trial,

surmised that counsel may have reasonably decided not to object to the

purportedly defective plea coll oquy because she had secured a good plea deal

for Appellant, which removed the possibility of a murder conviction carrying a

life sentence. Additionally, c ounsel was aware, based on Appellant’s

preliminary hearing testimony, that he claimed he was attacke d by the victim

,

and Appellant did not convince the PCRA court that counsel never discussed a

potential self

- defense claim with him prior to the plea colloquy . Given the

presumption that counsel acts effectively, we discern no error in the court’s

belief that counsel likely discussed Appellant’s version of events w ith him prior

to his decision to plead guilty . From that discussion, counsel may have

decided that Appellant did not have a viable claim of self

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explaining her failure to object to the colloquy after Appellant’s at

- issue

statement

. 2

Clearly, unlike in Flanagan , we can conceive of a reasonable basis for

counsel to have not object ed to Appellant’s plea colloquy. Thus, the record

supports the PCRA court’ s decision that, because Appellant failed to call plea

counsel to the stand at the evidentiary hearing , he did not meet his burden of

proving that counsel acted unreasonably by not objecting to the allegedly

deficient plea colloquy. Appellant is incorrect that Flanagan excused hi m

from t his burden of proof , where the alleged defect in his plea colloquy is not

the same as the defects in Flanagan . Therefore, the court did not err in

denying his PCRA petition.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/8/21

_________________ __________ ______ ____ _______

2 For instance, as the Commonwealth points out, Appellant “did not say that

he did not provoke the encounter; he did not say that he thought he would

die or sustain serious injuries; [and] he did not say he could not retreat.”

Commonwealth’s Brief at 23.J

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