Zillhart v. Smith

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

DAVID ARLINGTON ZILLHART, :

Petitioner : CIVIL ACTION NO. 3:18-1034

v. : (JUDGE MANNION)

BARRY SMITH, :

Respondent :

MEMORANDUM

Petitioner, David Arlington Zillhart, an inmate confined in the State

Correctional Institution, Houtzdale, Pennsylvania, filed the instant petition for

writ of habeas corpus pursuant to 28 U.S.C. §2254. (Doc. 1). He challenges

his guilty plea entered in the Court of Common Pleas of Lebanon County. Id.

The petition is ripe for disposition. For the reasons outlined below, the

petition will be denied.

I. Factual and Procedural Background

The factual and procedural background is extracted from the

Pennsylvania Superior Court’s August 3, 2017 Memorandum Opinion

affirming the denial of Zillhart’s petition filed pursuant to the Post Conviction

Relief Act (PCRA), 42 Pa.C.S.A. §§9541-9546, and is as follows:

Appellant, David Arlington Zillhart, appeals from the order of

October 25, 2016, that denied, following a hearing, his first

petition brought under the Post Conviction Relief Act (PCRA), 42

Pa.C.S.A. §§9541-9546. On Appeal, Appellant claims he

received ineffective assistance of plea counsel. For the reasons

discussed below, we affirm the denial of the PCRA petition.

We take the underlying facts and procedural history in this matter

from our review of the certified record. On January 20, 2015,

Appellant entered a negotiated guilty plea to two counts of

involuntary deviate sexual intercourse, one count of statutory

sexual assault, one count of sexual assault, eight counts of

aggravated indecent assault, twelve counts of indecent assault,

and two counts of corruption of minors. The charges arose out of

Appellant’s sexual abuse of two of his granddaughters over an

approximately twelve-year period between August 1999 and

April 2012.1

There was an approximately four-month period between entry of

Appellant’s plea and sentencing because of the need for a

sexually violent predator (SVP) inquiry and an assessment by

the Sexual Offenders’ Assessment Board (SOAB). On May 26,

2015, following receipt of a pre-sentence investigation report and

a SOAB report, the trial court found Appellant to be a SVP and

sentenced him in accordance with the terms of the negotiated

guilty plea to a term of incarceration of not less than ten nor more

than forty years. Appellant did not seek to withdraw his guilty

plea, did not file a post-sentence motion, and did not file a direct

appeal.

1 A third granddaughter also disclosed that Appellant had sexually abused

her during the same period. However, because the victim did not want to

proceed and because Appellant elected to enter a guilty plea, the

Commonwealth did not file charges with respect to her allegations. (See N.T.

Sentencing, 5/26/15, at 6-8).

On January 28, 2016, Appellant, acting pro se, filed the instant,

timely PCRA petition alleging ineffective assistance of plea

counsel. That same day, the PCRA court appointed counsel, who

filed an amended PCRA petition on August 18, 2016. A PCRA

hearing took place on October 25, 2016. At the hearing,

Appellant raised, for the first time, a claim that plea counsel was

ineffective for failing to file a suppression motion. The PCRA

court denied Appellant’s PCRA petition from the bench, following

the hearing. The instant, timely appeal followed. Appellant filed a

timely concise statement of errors complained of on appeal on

December 2, 2016. See Pa.R.A.P. 1925(b). On January 20,

2017, the PCRA court filed an opinion. See Pa.R.A.P. 1925(a).

On appeal, Appellant raises the following questions for our

review:

1. Whether [p]lea [c]ounsel was ineffective for failing to partake

in any [p]re-[t]rial [i]nvestigation, where Appellant informed [p]lea

[c]ounsel that he could not be guilty of the crimes for which he

was charged as he was not present during the dates and times

of the alleged incidents, thereby causing Appellant to enter a

guilty plea where [p]lea [c]ounsel failed to [use] Appellant’s alibi

to aid in his defense?

2. Whether Appellant was unlawfully induced into entering a

guilty plea when [p]lea [c]ounsel failed to engage in any [p]re-

[t]rial investigation so as to show Appellant’s innocence, where

[p]lea [c]ounsel opted to rely solely upon the Commonwealth’s

[i]nformation and failed to file a [m]otion to [s]uppress Appellant’s

statement?

Commonwealth v. Carter, 21 A.3d 680, 682 (Pa. Super. 2011),

appeal denied, 72 A.3d 600 (Pa. 2013) (citations and quotation

marks omitted).

(Doc. 10-18 at 1-4, Pennsylvania Superior Court Memorandum Opinion).

On August 3, 2017, the Pennsylvania Superior Court affirmed the PCRA

court’s order denying Zillhart’s PCRA petition, finding that his issues lacked

arguable merit. Id.

On August 30, 2017, Zillhart filed a Petition for Allowance of Appeal to

the Pennsylvania Supreme Court. (Doc. 10-19 at 1). By Order dated

December 13, 2017, the Pennsylvania Supreme Court denied the Petition

for Allowance of Appeal. (Doc. 10-20 at 1).

On May 16, 2018, Petitioner filed the instant petition for writ of habeas

corpus, in which he raises the sole issue of ineffective assistance of plea

counsel for “failing to conduct any pretrial investigation, relying solely on

charging documents, and failing to:

(i) determine whether Petitioner was present during time period

of alleged offenses.

(ii) investigate the nature of Petitioner’s alibi defense.

(iii) show Petitioner’s innocence causing him to enter into an

unlawfully-induced guilty plea.

(iv) whether a pretrial suppression motion should have been filed

to suppress Petitioner’s statements to police.

(Doc. at 5).

II. Legal Standards of Review

A habeas corpus petition pursuant to 28 U.S.C. §2254 is the proper

mechanism for a prisoner to challenge the “fact or duration” of his

confinement. Preiser v. Rodriguez, 411 U.S. 475, 498-99 (1973). 28 U.S.C.

§2254, provides, in pertinent part:

(a) The Supreme Court, a Justice thereof, a circuit judge, or a

district court shall entertain an application for a writ of habeas

corpus in behalf of a person in custody pursuant to the judgment

of a State court only on the ground that he is in custody in

violation of the Constitution or laws or treaties of the United

States

....

(d) An application for a writ of habeas corpus on behalf of a

person in custody pursuant to the judgment of a State court shall

not be granted with respect to any claim that was adjudicated on

the merits in State court proceedings unless the adjudication of

the claim—

(1) resulted in a decision that was contrary to, or involved

an unreasonable application of, clearly established

Federal law, as determined by the Supreme Court of

the United States; or

(2) resulted in a decision that was based on an

unreasonable determination of the facts in light of the

evidence presented in the State court proceeding.

28 U.S.C. §2254. Section 2254 sets limits on the power of a federal court to

grant an application for a writ of habeas corpus on behalf of a state prisoner.

Cullen v. Pinholster, 563 U.S. 170, 181 (2011); Glenn v. Wynder, 743 F.3d

402, 406 (3d Cir. 2014). A federal court may consider a habeas petition filed

by a state prisoner only “on the ground that he is in custody in violation of

the Constitution or laws or treaties of the United States.” 28 U.S.C. §2254(a).

This limitation places a high threshold on the courts. Typically, habeas relief

will only be granted to state prisoners in those instances where the conduct

of state proceedings resulted in “a fundamental defect which inherently

results in a complete miscarriage of justice [or] an omission inconsistent with

the rudimentary demands of fair procedure.” Reed v. Farley, 512 U.S. 339,

348 (1994) (citations omitted).

Zillhart’s case is governed by the Antiterrorism and Effective Death

Penalty Act of 1996, Pub.L.No. 104-132, 110 Stat. 1214, April 24, 1996

(“AEDPA”).

III. Discussion

Under the AEDPA, federal courts reviewing a state prisoner’s

application for a writ of habeas corpus may not grant relief “with respect to

any claim that was adjudicated on the merits in State court proceedings”

unless the claim (1) “resulted in a decision that was contrary to, or involved

an unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States” or (2) “resulted in a

decision that was based on an unreasonable determination of the facts in

light of the evidence presented in the State court proceeding.” 28 U.S.C.

§2254(d).

“[B]ecause the purpose of AEDPA is to ensure that federal habeas

relief functions as a guard against extreme malfunctions in the state criminal

justice systems, and not as a means of error correction,” Greene v. Fisher,

565 U.S. 34, 38 (2011) (internal quotations and citations omitted), “[t]his is a

difficult to meet and highly deferential standard . . . which demands that state-

court decisions be given the benefit of the doubt.” Cullen, 563 U.S. at 181

(internal quotation marks and citation omitted). The burden is on petitioner

to prove entitlement to the writ. Id.

Under 28 U.S.C. §2254(d)(1), a decision is “contrary to” federal law if

“the state court applies a rule that contradicts the governing law set forth in

[Supreme Court] cases” or “if the state court confronts a set of facts that are

materially indistinguishable from a decision of [the Supreme] Court and

nevertheless arrives at a result different from [Supreme Court] precedent.”

Williams v. Taylor, 529 U.S. 362, 405-06 (2000). The test for §2254(d)(1)’s

“unreasonable application of” clause is as follows: “[a]n ‘unreasonable

application’ occurs when a state court ‘identifies the correct governing legal

principle from [the Supreme] Court’s decisions but unreasonably applies that

principle to the facts’ of petitioner’s case.” Rompilla v. Beard, 545 U.S. 374,

380 (2005) (quoting Wiggins v. Smith, 539 U.S. 510, 519, 520 (2003)). “It is

not enough that a federal habeas court, in its independent review of the legal

question, is left with a firm conviction that the state court was erroneous.”

Lockyer v. Andrade, 538 U.S. 63, 75 (2003) (internal quotations omitted).

“Under §2254(d)(1)’s ‘unreasonable application’ clause ... a federal habeas

court may not issue the writ simply because that court concludes in its

independent judgment that the relevant state-court decision applied clearly

established federal law erroneously or incorrectly.” Id. at 75–76 (quoting

Williams, 529 U.S. at 411). Rather, “[t]he state court’s application of clearly

established law must be objectively unreasonable” before a federal court

may grant the writ. Andrade, 538 U.S. at 75.

The test for §2254(d)(2)’s “unreasonable determination of facts” clause

is whether the petitioner has demonstrated by “clear and convincing

evidence,” §2254(e)(1), that the state court’s determination of the facts was

unreasonable in light of the record. See Rice v. Collins, 546 U.S. 333, 338–

339 (2006) (“State-court factual findings, moreover, are presumed correct;

the petitioner has the burden of rebutting the presumption by ‘clear and

convincing evidence.’ ”) (quoting §2254(e)(1)) (citing Miller–El v. Dretke, 545

U.S. 231, 240, (2005)). Importantly, the evidence against which a federal

court measures the reasonableness of the state court’s factual findings is the

record evidence at the time of the state court’s adjudication. Cullen, 563 U.S

at 185.

Finally, Section 2254(e) provides that “[i]n a proceeding instituted by

an application for a writ of habeas corpus by a person in custody pursuant to

the judgment of a State court, a determination of a factual issue shall be

presumed to be correct. The applicant shall have the burden of rebutting the

presumption of correctness by clear and convincing evidence.” 28 U.S.C.

§2254(e)(1).

Petitioner’s sole claim is based on plea counsel’s alleged

ineffectiveness and has been fully adjudicated on the merits during the state

court proceedings. In Strickland v. Washington, 466 U.S. 668 (1984), the

Supreme Court explained that there are two components to demonstrating a

violation of the right to effective assistance of counsel. First, the petitioner

must show that counsel’s performance was deficient. This requires showing

that “counsel’s representation fell below an objective standard of

reasonableness.” See id. at 688; see also Williams v. Taylor, 529 U.S. 362,

390-91 (2000). Second, under Strickland, the petitioner must show that he

was prejudiced by the deficient performance. “This requires showing that

counsel’s errors were so serious as to deprive the defendant of a fair trial, a

trial whose result is reliable.” Strickland, 466 U.S. at 687. To establish

prejudice, the defendant “must show that there is a reasonable probability

that, but for counsel’s unprofessional errors, the result of the proceeding

would have been different. A reasonable probability is a probability sufficient

to undermine confidence in the outcome.” See id. at 694. The Strickland test

is conjunctive and a habeas petitioner must establish both the deficiency in

the performance prong and the prejudice prong. See Strickland, 466 U.S. at

687; Dooley v. Petsock, 816 F.2d 885, 889 (3d Cir. 1987). As a result, if a

petitioner fails on either prong, he loses. See Holladay v. Haley, 209 F.3d

1243, 1248 (11th Cir. 2000) (“Because both parts of the test must be satisfied

in order to show a violation of the Sixth Amendment, the court need not

address the performance prong if the defendant cannot meet the prejudice

prong, or vice versa.”) (citation omitted); Foster v. Ward, 182 F.3d 1177,

1184 (10th Cir. 1999) (“This court may address the performance and

prejudice components in any order, but need not address both if Mr. Foster

fails to make a sufficient showing of one.”).

The two-pronged test established in Strickland “qualifies as ‘clearly

established Federal law’ ” for purposes of the AEDPA. See Rainey v. Varner,

603 F.3d 189, 197 (3d Cir. 2010) (quoting Williams v. Taylor, 529 U.S. 362,

391 (2000)). Therefore, under §2254(d)(1), the relevant inquiry in assessing

ineffectiveness claims that have been adjudicated on the merits is whether

the state court’s decision involved an unreasonable application of Strickland

or are based on an unreasonable determination of the facts. See Jacobs v.

Horn, 395 F.3d 92, 107 n.9 (3d Cir. 2005). Moreover, Pennsylvania’s three-

pronged test for ineffective assistance claims, see Commonwealth v Pierce,

515 Pa. 153, 527 A.2d 973, 975-77 (Pa. 1987), is not contrary to Strickland,

see Jacobs, 395 F.3d at 107 n.9.

Petitioner raises the sole issue of ineffective assistance of plea counsel

for “failing to conduct any pretrial investigation, relying solely on charging

documents, and failing to:

(i) determine whether Petitioner was present during time period

of alleged offenses.

(ii) investigate the nature of Petitioner’s alibi defense.

(iii) show Petitioner’s innocence causing him to enter into an

unlawfully-induced guilty plea.

(iv) whether a pretrial suppression motion should have been filed

to suppress Petitioner’s statements to police.

(Doc. 1 at 5). Specifically, Petitioner states that “[a]t the heart of Petitioner’s

claims are the fact that each attempt at relief in post-conviction state courts

were denied primarily on the assertion that Petitioner, ‘openly admitted and

continues to admit to committing these crimes.’” Id. at 6. He claims

“[h]owever, this overly-used and inaccurate statement is not a representation

of the truth” and “in fact, this statement has been taken completely out of

context.” Id. He contends that “when Petitioner was initially confronted by law

enforcement and confronted with charges, Petitioner knew of two separate

incidents involving two victims” and “it is also a fact that Petitioner took

responsibility for his acts but was never given the opportunity to have these

facts investigated so that any plea would be a fair representation of facts and

not overzealous prosecution, and a pretrial lawyer who relied solely on

charging documents in this case.” Id.

Where a criminal defendant enters a guilty plea upon the advice of

counsel, the voluntariness of that plea can depend on whether “counsel’s

advice ‘was within the range of competence demanded of attorneys in

criminal cases.’ ” Hill v. Lockhart, 474 U.S. 52, 56 (1985). The Strickland test

is to be applied to challenges to guilty pleas based on ineffective assistance

of counsel. Id. at 57. However, in the context of a challenge to a guilty plea,

to satisfy the Strickland prejudice requirement, a petitioner “must show that

there is a reasonable probability that, but for counsel’s errors, he would not

have pleaded guilty and would have insisted on going to trial.” Hill, 474 U.S.

at 59.

The Pennsylvania Superior Court affirmed the PCRA Court’s rejection

of Petitioner’s claims, finding the following:

In the instant matter, Appellant claims that he received ineffective

assistance of plea counsel.2 (See Appellant’s Brief, at 8-18). “A

criminal defendant has the right to effective counsel during a plea

2 While Appellant discusses his allegations as two distinct claims, they are

intertwined and, therefore, we will treat them together.

process as well as during trial.” Commonwealth v. Rathfon, 899

A.2d 365, 369 (Pa. Super. 2006) (citations omitted). Further,

“[a]llegations of ineffectiveness in connection with the entry of a

guilty plea will serve as a basis for relief only if the ineffectiveness

caused the defendant to enter an involuntary or unknowing plea.”

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

2002) (citation omitted). Also, “[w]here the defendant enters his

plea on the advice of counsel, the voluntariness of the plea

depends upon whether counsel’s advice was within the range of

competence demanded of attorneys in criminal cases.” Id.

(internal quotation marks and citations omitted).

We presume that counsel is effective, and Appellant bears the

burden to prove otherwise. See Commonwealth v. Benett, 57

A.3d 1185, 1195 (Pa. 2012). The test for ineffective assistance

of counsel is the same under both the Federal and Pennsylvania

Constitutions. See Strickland v. Washington, 466 U.S. 668,

687-88 (1984); Commonwealth v. Jones, 815 A.2d 598, 611

(Pa. 2002). Appellant must demonstrate that: (1) his underlying

claim is of arguable merit; (2) the particular course of conduct

pursued by counsel did not have some reasonable basis

designed to effectuate his interests; and (3) but for counsel’s

ineffectiveness, there is a reasonable probability that the

outcome of the proceedings would have been different. See

Commonwealth v. Pierce, 786 A.2d 203, 213 (Pa. 2001),

abrogated on other grounds, Commonwealth v. Grant, 813

A.2d 726 (Pa. 2002). A failure to satisfy any prong of the test for

ineffectiveness will require rejection of the claim. See Jones,

supra at 611. Where, as here, Appellant pleaded guilty, in order

to satisfy the prejudice requirement, he must show that “there is

a reasonable probability that, but for counsel’s errors, he would

not have pleaded guilty and would have insisted on going to trial.”

Rathfon, supra at 370 (citation omitted). Appellant has utterly

failed to do so.

Appellant first claims that plea counsel failed to investigate a

proposed alibi defense. (See Appellant’s Brief at 8-16). However,

Appellant’s argument on this issue is lacking in merit. In his brief,

after quoting several pages of testimony from the PCRA hearing,

Appellant perfunctorily states that he could not be guilty of the

crimes charged because he had an alibi. (See id. at 8-15).

Appellant then baldly states that plea counsel’s failure to

investigate this defense caused him to plead guilty rather than

using the alibi defense to aid him at trial. (See id. at 15).

Appellant next avers, without explanation, that this demonstrates

prejudice.

Initially, we note that Appellant’s arguments here in support of

this issue are not consistent with his testimony and argument at

the PCRA hearing. At no point that we can ascertain has

Appellant ever alleged that he had an alibi for the entire period

of abuse, making him actually innocent of the charged crimes.

(See N.T. PCRA hearing, 10/25/16, at 26-28). Rather, he claims

that he was not residing at the address mentioned in the affidavit

of probable cause during the initial periods of abuse between

1999 and January of 2002, and that between September of 2009

and June of 2011, the victims had moved out-of-state.3

Further, below, Appellant never claimed actual innocence,

instead he admitted at multiple points throughout the PCRA

hearing that he did sexually abuse his granddaughters. (see id.

at 17, 19, 26-28). Moreover, Appellant has never state that he

wished to go to trial; rather, he specifically testified at the PCRA

hearing that he believed that he would have no chance of

success at trial and was merely asking the court for “leniency.”

(Id. at 20). In addition, when pressed by the Commonwealth as

to how the failure to investigate the “alibi” defense affected him,

he was unable to articulate any specific impact. (See id. at 28-

29). While PCRA counsel did argue that counsel’s failure to

investigate his alibi defense prejudiced Appellant, she did not

claim that it caused Appellant to plead guilty but vaguely stated,

3 The affidavit of probable cause does not clearly state that the abuse

stopped when the family moved out-of-state but resumed when the family

returned and moved in with Appellant. (See Affidavit of Probable Cause,

10/06/14, at 1).

(footnote continued on next page)

that pursuing it might have put the defense in a position to

negotiate a more favorable sentence. (See id. at 35).4

Accordingly, we find that Appellant has failed to set forth the

ineffectiveness analysis required by Strickland. See Strickland,

supra at 687. Because Appellant has not established any of the

three prongs, we must deem counsel’s assistance

constitutionally effective. See Commonwealth v. Rolan, 964

A.2d 398, 406 (Pa. Super. 2008) (holding that where appellant

fails to prove any one of the three prongs of ineffectiveness test,

he does not meet his burden of proving ineffective assistance of

counsel, and counsel is deemed constitutionally effective). Thus,

there is no basis to upset the PCRA court’s finding that Appellant

was not entitled to PCRA relief on this issue.

Appellant next argues that plea counsel was ineffective for failing

to investigate his innocence5 by filing a motion to suppress his

statement to the police, which resulted in him entering an

unlawful guilty plea. (See Appellant’s Brief, at 16-18). However,

Appellant’s argument is undeveloped. Appellant fails to cite to

any particular case law other than boilerplate law on ineffective

assistance of counsel, and merely quotes portions of his

testimony at the PCRA hearing and then states, without

4 Moreover, at the PCRA hearing, plea counsel specifically testified that

Appellant never told him that the believed he had an alibi for the crimes but

instead admitted his guilt and gave a detailed recitation of the abuse of his

granddaughters. (See N.T. PCRA Hearing, 10/25/16, at 37-38). Counsel also

testified that this was not the type of case that lent itself to an alibi defense;

that the doubted “very strongly” that filing a partial alibi notice would have

induced the Commonwealth to make a more favorable plea offer. (Id. at 44).

In its bench ruling denying PCRA relief, the court specifically credited

defense counsel’s testimony that Appellant never raised the possibility of an

alibi defense. (See id. at 50). We accord great deference to a PCRA court’s

credibility findings. See Commonwealth v. Dennis, 17 A.3d 297, 305 (Pa.

2011). Further, where, as here, the record supports them; such

determinations are binding on a reviewing court. See id.

5 As discussed above, any claim of actual innocence in Appellant’s brief is

belied by his repeated iterations of guilt throughout the PCRA hearing.

(footnote continued on next page)

explanation that this shows that his claim has arguable merit.

(See id. at 17-18). He concludes that, but for counsel’s failure to

file a suppression motion, he would not have pleaded guilty.6

However, Appellant never discusses any law on duress or

coercion, and never explains the legal basis for his claim that he

had a meritorious suppression issue. (See id.).

“Claims of ineffective assistance of counsel are not self-

proving[.]” Commonwealth v. Spotz, 896 A.2d 1991, 1250 (Pa.

2006) (citation omitted). Our Supreme Court has repeatedly

refuse to consider bald allegations of ineffectiveness, such as

this one. See Commonwealth v. Thomas, 744 A.2d 713, 716

(Pa. 2000) (declining to find counsel ineffective “where appellant

fail[ed] to allege with specificity sufficient facts in support of his

claim.”). Thus, because Appellant has failed to argue his claim

with sufficient specificity, we find it waived. Therefore, there is no

basis to upset the PCRA court’s finding that Appellant was not

entitled to PCRA relief on this issue.

In any event, we have held that where the record clearly shows

that the court conducted a thorough guilty plea colloquy and that

the defendant understood his rights and the nature of the

charges against him, the plea is voluntary. See Commonwealth

v. McCauley, 797 A.2d 920, 922 (Pa. Super. 2001). In examining

whether the defendant understood the nature and consequences

of his plea, we look to the totality of the circumstances. See id.

At a minimum, the trial court must inquire into the following six

areas:

(1) Does the defendant understand the nature of the

charges to which he is pleading guilty?

(2) Is there a factual basis for the plea?

(3) Does the defendant understand that he has a right to

trial by jury?

6 Again, we note that the record from the PCRA hearing simply does not

support the contention made on appeal that Appellant wished to go to trial in

this matter.

(4) Does the defendant understand that he is presumed

innocent until he is found guilty?

(5) Is the defendant aware of the permissible ranges of

sentences and/or fines for the offenses charged?

(6) Is the defendant aware that the judge is not bound by

the terms of the plea agreement tendered unless the

judge accepts such agreement?

Id. (citation omitted); see also Pa.R.Crim.P. 590, Comment.

Defense counsel or the attorney for the Commonwealth, as

permitted by the court, may conduct this examination. See

Pa.R.Crim.P. 590, Comment. Moreover, the examination may

consist of both a written colloquy that the defendant read,

completed and signed, and made part of the record; and an on-

the-record oral examination. See id.

Here, Appellant signed a written plea colloquy and engaged in

an oral colloquy with the trial court. (See Written Guilty Plea,

1/20/15, at unnumbered page 8; N.T. Guilty Plea Hearing,

1/20/15, at 2-4). At the guilty plea hearing, Appellant testified that

he understood the charges against him, was pleading guilty

because he had committed the crimes charged, had signed the

written guilty plea colloquy, and understood the written colloquy.

(See N.T. Guilty Plea Hearing, at 2-3). Appellant agreed that he

had no questions for his counsel, the Commonwealth, or the trial

court; was satisfied with counsel’s representation; and wanted to

plead guilty. (See id. at 4).

In the written plea colloquy, Appellant agreed that he was guilty

of the charged crimes; he understood the maximum sentence he

could receive and that the sentences could run consecutively; he

was pleading guilty of his own free will; and he was satisfied with

counsel’s representation. (See Written Guilty Plea, supra at 3-

5). Appellant did not make any complaints or voice any

dissatisfaction with counsel’s representation during the plea

colloquy. (See N.T. Guilty Plea, at 2-4).7

The statements made during a plea colloquy bind a criminal

defendant. See Commonwealth v. Muhammad, 794 A.2d 378,

384 (Pa. Super. 2002). Thus, a defendant cannot assert grounds

for withdrawing the plea that contradict statements made at that

time. See Commonwealth v. Stork, 737 A.2d 789, 790-91 (Pa.

Super. 1999), appeal denied, 764 A.2d 1068 (Pa. 2000). Further,

“[t]he law does not require that appellant be pleased with the

outcome of this decision to enter a plea of guilty: ‘All that is

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

knowingly, voluntarily and intelligently made’.” Commonwealth

v. Yager, 685 A.2d 1000, 1004 (Pa. Super. 1996) (en banc),

appeal denied, 701 A.2d 577 (Pa. 1997) (citation omitted). Here,

Appellant has not shown that his decision to enter the guilty plea

was involuntary. He has therefore failed to prove prejudice. Thus,

his claim of ineffective assistance of plea counsel lacks merit.

(Doc. 10-18 at 4-11).

The court cannot find that this decision, when evaluated objectively

and on the merits, resulted in an outcome that cannot be reasonably justified.

See Matteo v. Superintendent, SCI Albion, 171 F.3d 877, 891 (3d Cir. 1999).

The law relied upon by the Superior Court in reaching its holding was in

accordance with Supreme Court precedent. There is nothing to suggest that

7 We note that during the four-month interval between the guilty plea and

sentencing Appellant did not seek to withdraw his guilty plea or make any

complaints regarding counsel’s stewardship. Further, Appellant did not raise

the issue at sentencing, instead again admitting his guilt. (See N.T.

Sentencing, 5/26/15, at 9; 2-28). Appellant did not file a post-sentence

motion or a direct appeal.

this law was applied unreasonably, or that the decision was based on an

unreasonable application of the facts.

It is apparent from the transcript, referenced in the Pennsylvania

Superior Court’s decision, that the oral colloquy addressed, among other

topics, Petitioner’s understanding of the written guilty plea colloquy, his

understanding of the terms of the plea agreement, the absence of coercion,

his wavier of rights, his understanding of the charges against him, and his

satisfaction with his plea counsel. The record shows that Petitioner’s plea of

guilty to the offense was made with full knowledge and understanding of the

nature of the offense and the full range of potential punishments the court

could impose. It further shows that he was not induced to enter the plea and

that he freely entered into the same.

The record in this case afforded an ample basis for the state court’s

conclusion that Petitioner’s plea was knowing and voluntary, and not the

product of ineffective assistance of counsel, and does not reflect an

unreasonable application of the Strickland test. Therefore, Petitioner’s

ineffective assistance of plea counsel claim is without merit and will be

denied.

IV. Certificate of Appealability

Pursuant to 28 U.S.C. §2253(c), unless a circuit justice or judge issues

a certificate of appealability (“COA”), an appeal may not be taken from a final

order in a proceeding under 28 U.S.C. §2254. A COA may issue only if the

applicant has made a substantial showing of the denial of a constitutional

right. 28 U.S.C. §2253(c)(2). “A petitioner satisfies this standard by

demonstrating that jurists of reason could disagree with the district court’s

resolution of his constitutional claims or that jurists could conclude the issues

presented are adequate to deserve encouragement to proceed further.”

Miller-El v. Cockrell, 537 U.S. 322 (2003). Petitioner fails to demonstrate that

a COA should issue.

The denial of a certificate of appealability does not prevent Zillhart from

appealing the order denying his petition so long as he seeks, and obtains, a

certificate of appealability from the Third Circuit Court of Appeals. See Fed.

R. App. P. 22(b)(1).

V. Conclusion

For the reasons set forth above, the petition for writ of habeas corpus

pursuant to 28 U.S.C. §2254 will be denied.

An appropriate order follows.

s/ Malachy E. Mannion

MALACHY E. MANNION

United States District Judge

DATE: January 26, 2021

18-1034-01