“[a] defendant wishing to challenge the [validity] of a guilty plea on direct appeal must either object during the plea colloquy or file a motion to withdraw the plea within ten days of sentencing.”
How later courts described this case
- “[a] defendant wishing to challenge the [validity] of a guilty plea on direct appeal must either object during the plea colloquy or file a motion to withdraw the plea within ten days of sentencing.”
Written by the judges who cited it.
The opinion
J-S68042-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ASHLEY MARIE BARBER :
:
Appellant : No. 839 WDA 2018
Appeal from the PCRA Order May 7, 2018
In the Court of Common Pleas of Crawford County Criminal Division at
No(s): CP-20-CR-0000573-2012
BEFORE: SHOGAN, J., DUBOW, J., and STEVENS*, P.J.E.
MEMORANDUM BY STEVENS, P.J.E.: FILED DECEMBER 27, 2018
Appellant, Ashley Marie Barber, appeals from the order entered in the
Court of Common Pleas of Crawford County dismissing her first petition filed
pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. § 9541-
9546. We affirm.
The PCRA court aptly sets forth the pertinent facts and procedural
history, as follows:
Defendant/Petitioner [hereinafter “Appellant”] pled guilty, along
with her co-defendant Jade Olmstead, to the first-degree murder
of Brandy Stevens.
To put the matter in context, the following is a summary of the
facts Appellant admitted in her plea colloquy. Appellant admitted
that Olmstead and she had a plan to lure Stevens into the woods
to fight her. After the physical altercation began, the plan became
to kill her. The fight started with Appellant hitting Stevens in the
face and throat with her fists and hands. Stevens began fighting
back and screaming for help. Appellant held Stevens while
Olmstead struck her multiple times in the head with a shovel.
____________________________________
* Former Justice specially assigned to the Superior Court.
J-S68042-18
Petitioner beat Stevens’ forehead off a tree stump until she could
see visible blood and brain material. Appellant used a rope that
had been on the tree stump to first hold and then to strangle
Stevens. When Stevens stopped fighting back, Appellant stated
that her “anger wasn’t done” and it was frustrating to her that
Stevens was no longer fighting so Appellant dropped a boulder
from over her head onto Stevens’ face. Appellant then poured
water into Stevens’ mouth to drown her. Appellant and Olmstead
put Stevens in a shallow grave they dug in the ground and covered
her face and body with dirt.
Appellant was sentenced to a term of life imprisonment after her
guilty plea on November 14, 2013. Appellant filed a pro se Motion
for Post Conviction Collateral Relief on November 5, 2014.
Appellant was appointed PCRA counsel and counsel filed an
Amended Petition for PCRA relief on February 20, 2015. The court
heard argument on the Amended Petition on May 4, 2015 and an
evidentiary hearing was held on October 26, 2017. The court
ordered briefs to be filed within 45 days. Upon motion of the
Appellant, the court extended time for filing, and both the
Commonwealth’s and the Appellant’s briefs were timely submitted
by January 11, 2018.
Appellant assert[ed] essentially two reasons for relief under the
PCRA: 1) that her guilty plea was unlawfully induced and thus not
knowing, voluntary, and intelligent; and 2) ineffective assistance
of counsel [in inducing her to plead guilty when she was
incompetent to do so]. The two issues [as presented] dovetail[ed]
as Pennsylvania law sets forth that a criminal defendant has the
right to effective assistance of counsel during a plea process as
well as during trial. [After thorough review of both issues, the
PCRA court denied Appellant relief by order dated May 7, 2018].
PCRA Court Opinion, 5/7/18, at 1-2.
Appellant presents the following question for our consideration:
[Did] the PCRA court err[ ] in denying Appellant’s Amended
Petition for Post-Conviction Collateral Relief where the Appellant
contends (1) Appellant did not knowingly, voluntarily, and
intelligently enter her plea based upon a totality of circumstances;
(2) Appellant testified regarding the ineffective assistance of
counsel concerning the entry of [her] guilty plea; and (3) the PCRA
court failed to permit testimony from a psychiatrist regarding her
-2-
J-S68042-18
past mental health history and mental status at the time of entry
of Appellant’s guilty plea?
Appellant’s brief, at 3.
We begin with our standard of review governing PCRA appeals.
This Court analyzes PCRA appeals in the light most favorable to
the prevailing party at the PCRA level. Our review is limited to
the findings of the PCRA court and the evidence of record and we
do not disturb a PCRA court’s ruling if it is supported by evidence
of record and is free of legal error. Similarly, we grant great
deference to the factual findings of the PCRA court and will not
disturb those findings unless they have no support in the record.
However, we afford no such deference to its legal conclusions.
Where the petitioner raises questions of law, our standard of
review is de novo and our scope of review is plenary. Finally, we
may affirm a PCRA court’s decision on any grounds if the record
supports it.
Commonwealth v. Benner, 147 A.3d 915, 919 (Pa.Super. 2016) (quoting
Commonwealth v. Perry, 128 A.3d 1285, 1289 (Pa.Super. 2015)).
Appellant first raises a mental incompetence claim against her guilty
plea. As a prefatory matter, we note that an appellant generally waives a
challenge to the validity of his or her guilty plea if it is not first raised before
the trial court and in a direct appeal. Commonwealth v. Lincoln, 72 A.3d
606, 609–610 (Pa.Super. 2013) (“[a] defendant wishing to challenge the
[validity] of a guilty plea on direct appeal must either object during the plea
colloquy or file a motion to withdraw the plea within ten days of sentencing.”);
Pa.R.Crim.P. 720(A)(1), (B)(1)(a)(i). In the case sub judice, Appellant has
not previously raised this challenge, hence, the general rule would call for
waiver of this claim.
-3-
J-S68042-18
However, in Commonwealth v. Brown, 872 A.2d 1139 (Pa. 2005), the
Pennsylvania Supreme Court held that “the failure to raise on direct appeal a
claim that the appellant was incompetent at the time of trial does not
constitute a waiver of that claim for purposes of the PCRA.” Id. at 1155-56.
In so doing, the Court acknowledged it has ‘long held that ‘the mental
competence of an accused must be regarded as an absolute and basic
condition of a fair trial[,]’” such that “when the issue presented is whether a
person was competent to stand trial, the waiver rule is not applicable.” Id. at
1155 (citations omitted). Among the PCHA cases upon which the Court relied
in this regard was Commonwealth v. Giknis, 420 A.2d 419 (Pa. 1980),
where the Court declined to find waiver where appellant asserted for the first
time in his PCHA petition that he was incompetent to have entered a guilty
plea. Brown, 872 A.2d at 1155. Observing that the relevant provisions
defining waiver in both the PCHA and PCRA are nearly identical, the Brown
Court declined to find waiver under the PCRA. On this authority, therefore,
we determine Appellant has not waived her competence claim by failing to
raise it previously before the trial court or on direct appeal.
In addressing Appellant's issue related to his guilty plea, we first set
forth our well-settled standard of review.
“Our law is clear that, to be valid, a guilty plea must be knowingly,
voluntarily and intelligently entered.” Commonwealth v.
Pollard, 832 A.2d 517, 522 (Pa.Super. 2003). In
Commonwealth v. Fluharty, [632 A.2d 312 (Pa.Super. 1993)],
we set forth guidelines to determine the validity of a guilty plea:
-4-
J-S68042-18
In order for a guilty plea to be constitutionally valid,
the guilty plea colloquy must affirmatively show that
the defendant understood what the plea connoted and
its consequences. This determination is to be made
by examining the totality of the circumstances
surrounding the entry of the plea. [A] plea of guilty
will not be deemed invalid if the circumstances
surrounding the entry of the plea disclose that the
defendant had a full understanding of the nature and
consequences of his plea and that he knowingly and
voluntarily decided to enter the plea.
Id. at 314 (quotation marks and citations omitted).
Commonwealth v. Rush, 909 A.2d 805, 808 (Pa.Super. 2006).
“A person who elects to plead guilty is bound by the statements he
makes in open court while under oath and he may not later assert grounds for
withdrawing the plea which contradict the statements he made at his plea
colloquy.” Pollard, 832 A.2d at 523 (citation omitted). “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.” Commonwealth v. Yeomans,
24 A.3d 1044, 1047 (Pa.Super. 2011) (citing Pollard, supra).
“[W]here the record clearly demonstrates that a guilty plea colloquy
was conducted, during which it became evident that the defendant understood
the nature of the charges against him, the voluntariness of the plea is
established.” Commonwealth v. McCauley, 797 A.2d 920, 922 (Pa.Super.
2001).
Relatedly, the test for determining competence to enter a plea is
whether the defendant “had the opportunity at the appropriate time to consult
with counsel, understand counsel's advice and information and understand the
-5-
J-S68042-18
nature of the pending criminal proceedings against him.” Commonwealth
v. Smith, 469 A.2d 1104, 1107 (Pa.Super. 1983) (citing Commonwealth v.
Scott, 414 A.2d 388 (Pa.Super. 1979), and Commonwealth v. Marshall,
318 A.2d 724 (Pa. 1974)). Since the determination of competency is a matter
for the sound discretion of the lower court, we may not disturb that finding
absent a clear abuse of that discretion. Commonwealth v. Frey, 904 A.2d
866, 872 (Pa. 2006).
The 167-page Notes of Testimony of Appellant’s guilty plea colloquy
belie the portrayal of an incompetent defendant struggling to communicate
with counsel and understand the nature of criminal proceedings against her.
In fact, throughout the lengthy colloquy, Appellant responded clearly and
appropriately to the many questions put to her. While most of her responses
consisted of short answers either in the affirmative or in negative, she
provided them in a manner reflecting discernment and understanding of the
questions. For example:
THE COURT: [As to the written guilty plea colloquy] So it
looks like your printing and both you and Mr. Draudt [defense
counsel] signed it; is that true?
APPELLANT: Yes.
THE COURT: And did you sign it of your own free will?
APPELLANT: Yes.
THE COURT: Did anyone force you or threaten you to sign it?
APPELLANT: No.
-6-
J-S68042-18
THE COURT: Any questions for me about this form?
APPELLANT: No, sir.
...
THE COURT: You’ve had some mental health treatment
including you’ve been institutionalized for at least one occasion for
a short period of time; is that right?
APPELLANT: Yes.
THE COURT: And you’ve been on medication for a period of
time off and on; is that right?
APPELLANT: Yes.
THE COURT: And are you on medication right now?
APPELLANT: Yes.
THE COURT: Are you taking that in the dosage and manner
that the doctors and professionals have prescribed it to you in
[sic]?
APPELLANT: Yes.
THE COURT: …[Y]ou’re taking it when you’re given it?
APPELLANT: Yes.
THE COURT: You’re not cheeking it or not taking it or spitting
it out or anything?
APPELLANT: No.
THE COURT: And you have been taking that regularly
throughout your stay at the jail?
APPELLANT: Most of the time.
THE COURT: Okay. Over the last month or so, have you been
taking it regularly?
-7-
J-S68042-18
APPELLANT: Yes.
...
THE COURT: Is the medication helping you?
APPELLANT: Yes.
THE COURT: Okay. Is the medication affecting your ability to
understand me at all here today?
APPELLANT: No.
THE COURT: Are you currently under the influence of alcohol?
APPELLANT: No.
THE COURT: Drugs?
APPELLANT: No.
THE COURT: Controlled substances, other than the
medication we’ve talked about?
APPELLANT: No, sir.
THE COURT: [Is] anything that you’re aware of today having
an impact on your ability to understand me?
APPELLANT: No.
…
THE COURT: Do you believe you are competent?
APPELLANT: Yes.
THE COURT: You understand all of the things we’ve talked
about?
APPELLANT: Yes.
THE COURT: You understand your defenses, the rights you
have to proceed to trial; you understand Mr. Draudt’s role; you
-8-
J-S68042-18
understand Mr. Schultz’s role; you understand my role; the
various court staff’s roles. Do you understand all of those things?
APPELLANT: Yes.
THE COURT: And do you believe you have been able to assist
Mr. Draudt in his representation of you over the months that have
been leading up to today?
APPELLANT: Ninety percent of the time.
THE COURT: Okay. So there have been some tough days
maybe where you weren’t feeling your best or you were a little
down in the dumps or a lot down in the dumps, maybe or
medication wise or mental health wise or, maybe, it’s medically
wise, you weren’t able to give the information that you wanted.
But for the majority of that time, you have been able to provide
and assist in your own defense; is that true?
APPELLANT: Yes.
THE COURT: And especially, let’s say, the last 30 to 60 days,
have you been able to assist in your own defense?
APPELLANT: Yes.
THE COURT: … [Y]our [sic] decision to enter the plea today
has nothing to do with the fact that you’ve had some times where
you weren’t able to help. You’re decision to enter the plea today
is based upon the evidence and what you believe the evidence will
show; is that true?
APPELLANT: Yes.
...
THE COURT: The printing [on the written guilty plea colloquy]
is all yours. The part that’s filled in by Mr. Draudt is the
punishments and we’ll talk a lot about the punishment in a little
while, but you’ve signed that as well. You understood and read
what he filled in?
APPELLANT: Yes.
-9-
J-S68042-18
THE COURT: And he filled that in prior to you signing the
form?
APPELLANT: Yes, we talked about it, that’s why it is separate.
THE COURT: I bet you did. Okay. Any questions for me
about that form?
APPELLANT: No, sir.
THE COURT: Okay, [I have discussed with defense counsel a
recent Pennsylvania Supreme Court case of relevance] and
directed or indicated he should look at the case. I assume that
you’ve done that; is that true?
DEFENSE COUNSEL: Yes, sir.
THE COURT: And have you gone over that with Ms. Barber?
DEFENSE COUNSEL: Yes.
THE COURT: Okay. [It] is a complicated case. I’m not going
to go through it now and bore everybody –
APPELLANT: I’ve read it.
THE COURT: --with it, but you understand what it means?
APPELLANT: Yes.
...
THE COURT: The defendant is alleged, you’re the defendant
here, you’re alleged to have on or about May 24, 2012 with malice,
premeditation with specific intent to kill, kill Brandy Stevens. Do
you understand that?
APPELLANT: No, it was on May 17.
THE COURT: Okay. You’re right. It was on May 17.
N.T. at 10, 12-14, 16-17, 18-19, 113.
- 10 -
J-S68042-18
Appellant also answered the Commonwealth’s open-ended questions
pertaining to the facts underlying the charges against her. Again, Appellant
showed no sign of incompetence in this phase of the colloquy, as she clearly
described the nature of her relationship with the co-defendant and gave a
detailed account of relevant events occurring before, during, and after their
brutal murder of the victim. N.T. at 118-161.
At the conclusion of the colloquy, Appellant pleaded guilty to murder in
the first degree. N.T. at 162. She denied that either coercion or undisclosed
promises induced her plea. N.T. at 163. She expressed satisfaction with plea
counsel’s assistance and denied he had failed to keep her informed or to carry
out her requests. Id.
Appellant argues the PCRA court erroneously dismissed as incredible her
PCRA testimony that she was mentally incapable at her plea colloquy of
reliably claiming adherence to her medication regimen, comprehension of the
proceeding and its consequences, and satisfaction with plea counsel’s
assistance. Appellant’s brief, at 8-10; 11-14. Under governing standards
set forth above, however, it was Appellant’s burden to prove at the PCRA
hearing that she was not, in fact, competent during her plea colloquy despite
every appearance indicating otherwise. See Pollard, supra.
Appellant’s self-conflicting PCRA testimony failed to meet this burden,
as she claimed at one instance an incapacity to understand the plea
proceedings only to claim later that she repeatedly found it necessary during
the time leading up to her plea to apprise plea counsel on relevant decisional
- 11 -
J-S68042-18
law and procedures. N.T. 10/26/17, at 44. Viewing this contradictory PCRA
testimony in light of both Appellant’s plea colloquy—in which she presents as
alert, responsive, communicative, and consistent in her narrative—and plea
counsel’s PCRA testimony describing the process by which Appellant
voluntarily decided to plead guilty, the PCRA court rejected the notion that
mental incompetence tainted Appellant’s guilty plea. As we agree there is no
arguable merit to Appellant’s claim of incompetence, we discern no error or
abuse of discretion in the PCRA court’s decision.
Next, Appellant alleges plea counsel ineffectively induced her to enter
an unintelligent plea, as her mental incompetence caused by her refusal to
take prescribed psychiatric medications was abundantly clear. In order to
establish eligibility for PCRA relief, a petitioner must prove by a preponderance
of the evidence that the conviction resulted from “[i]neffective 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.” 42 Pa.C.S. § 9543(a)(2)(ii). “[C]ounsel is presumed
to be effective, and the petitioner bears the burden of proving to the contrary.”
Commonwealth v. Brown, __ A.3d __, 2018 WL 5046812, at *12 (Pa. filed
Oct. 17, 2018).
The PCRA will provide relief to an appellant if ineffective assistance of
counsel caused him or her to enter an involuntary plea of guilt.
Commonwealth v. Lynch, 820 A.2d 728 (Pa.Super. 2003). We conduct our
review of such a claim in accordance with 42 Pa.C.S. § 9543(a)(2)(ii). Lynch,
- 12 -
J-S68042-18
820 A.2d at 732. “The voluntariness of [the] plea depends on whether
counsel's advice was within the range of competence demanded of attorneys
in criminal cases.” Id. at 733 (quoting Commonwealth v. Hickman, 799
A.2d 136 (Pa.Super. 2002)).
It is well-established that counsel is presumed to have provided effective
representation unless the PCRA petitioner pleads and proves all of the
following: (1) the underlying legal claim is of arguable merit; (2) counsel’s
action or inaction lacked any objectively reasonable basis designed to
effectuate his client’s interest; and (3) prejudice, to the effect that there was
a reasonable probability of a different outcome if not for counsel’s error.
Commonwealth v. Johnson, 179 A.3d 1105, 1114 (Pa.Super. 2018)
(citations omitted). “A failure to satisfy any prong of the ineffectiveness test
requires rejection of the claim of ineffectiveness.” Commonwealth v.
Daniels, 963 A.2d 409, 419 (Pa. 2009).
Appellant’s charge of counsel’s ineffective inducement of her plea
centers on her claimed mental incompetence at the time. Because we have
rejected Appellant’s underlying claim of mental incompetence as meritless,
she many not prevail on her ineffectiveness claim.
In Appellant’s final issue, she contends the PCRA court erred in denying
her request to present the testimony of a psychiatrist regarding Appellant’s
mental status at the time she entered her guilty plea. The admissibility of
evidence is vested in the sound discretion of the hearing court and an
appellate court may reverse only where there is an abuse of that discretion.
- 13 -
J-S68042-18
Commonwealth v. Henry, 706 A.2d 313, 319 (Pa. 1997). An abuse of
discretion not found based on mere error of judgment, but rather where ruling
is manifestly unreasonable or result of partiality, prejudice, bias, or ill-will.
Commonwealth v. Treiber, 121 A.3d 435, 476 (Pa. 2015).
Here, the record shows Appellant mischaracterizes the PCRA court’s pre-
hearing order. The court did not preclude the possibility of considering the
psychiatrist’s opinion, it only declared it premature to permit the opinion on
Appellant’s competence at the time of her plea. In that vein, the court
“reserve[ed] the right after hearing from other witnesses and argument to
determine whether an additional hearing date is required to allow the
petitioner to present a psychiatrist.” Order, 11/30/15, at 1. The court then
placed the onus upon Appellant to resubmit her request for the admission of
such expert opinion:
Again the court does not hold that it will not permit the
psychiatrist to testify, but rather the reports that have been
authored and are in the file do not appear to provide an
appropriate foundation in light of the new information and,
therefore, the court directs that the psychiatrist may not testify at
the time of the original PCRA hearing and that in the event that
counsel for the petitioner believes thereafter that
psychiatric testimony is appropriate, that the reports upon
which he is relying to suggest that that testimony is
admissible be provided to the Commonwealth and the court
in advance so that appropriate determinations can be made
as to whether there are issues to be addressed on these
questions.
Id. at 2 (emphasis added).
- 14 -
J-S68042-18
It appears that Appellant never availed herself of the court’s invitation
to petition the court after the PCRA hearing if she still believed it appropriate
to admit the psychiatrist’s opinion testimony concerning her competence at
the plea hearing. Accordingly, we discern no factual basis to her claim that
the PCRA court precluded her from introducing the psychiatrist’s opinion.
For the foregoing reasons, as well as for the reasons expressed in the
cogent and comprehensive opinion of the Honorable Mark D. Stevens, see
PCRA Court Opinion, 5/7/18, at 1-11, 1 which we adopt as our own, we affirm
the PCRA order.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/27/2018
____________________________________________
1 The parties shall attach a copy of the PCRA court’s February 12, 2018,
opinion to this memorandum in the event of further proceedings.
- 15 -
Circulated 11/30/2018 03:01 PM
IN THE COURT OF COMMON' .L,_,`:' Poi._ ... Jr:I' '1
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CRIi\fiN.V... Di V1S fe,r
20 I t-1 4't J(:
COMMONWEALTH OF No, CR 573-2012
GLE.Iih Or CO
PENNSYLVANIA CRAWFORD COUNTY,URTS
PA
VS. I CERTIFY THIS TO FIE A TRUE COPY OF ORIGINAL
ON FILE IN THE CLERK OF COURTS OFFICE
ASHLEY MARIE BARBER /1
CLERK OF COURTS, CRAWFORD COUNTY, PA
Defendant.
MY COMMISSION EXPIRES
FIRST MONDAY JANUARY 2022
MEMORANDUM AND ORDER ri
Mark D. Stevens, J. May7, 2018
Before the Court is the Defendant's Amended Petition for Post Conviction Collateral
Relief. Defendant/Petitioner pled guilty, along with her co-defendant Jade Olmstead, to the first
degree murder of Brandy Stevens.
To put the matter in context, the following is a summary of the facts Petitioner admitted
in her plea colloquy. Petitioner admitted that Olmstead and Petitioner had a plan to lure Stevens
into the woods to fight her. (N.T. Plea Colloquy, p. 125.) After the physical altercation began,
the plan became to kill her. (N.T. Plea Colloquy, p. 127.) The fight started with Petitioner hitting
Stevens in the face and throat with her fists and hands. (N.T. Plea Colloquy, p. 129.) Stevens
began fighting back and screaming for help. (N.T. Plea Colloquy, p. 130.) Petitioner held
Stevens while Olmstead struck her multiple times in the head with a shovel. (N.T. Plea Colloquy,
p. 133.) Petitioner beat Stevens' forehead off a tree stump until she could see visible blood and
brain material. (N.T. Plea Colloquy, p. 133-134.) Petitioner used a rope that had been on the tree
stump to first hold and then to strangle Stevens. (N.T. Plea Colloquy, p. 137.) When Stevens
stopped fighting back, Petitioner stated that her "anger wasn't done" and it was frustrating to her
that Stevens was no longer fighting so Petitioner dropped a boulder from over her head onto
Stevens' face. (N,T. Plea Colloquy, p. 143-144.) Petitioner then poured water into Steven's
mouth to drown her. (N.T. Plea Colloquy, p. 146; 160.) Petitioner and Olmstead put Stevens in a
shallow grave they dug in the ground and covered her face and body with dirt. (N.T, Plea
Colloquy, p. 148.)
Petitioner was sentenced to a term of life imprisonment after her guilty plea on
November 14, 2013. Petitioner filed a pro se Motion for Post Conviction Collateral Relief on
November 5, 2014. Petitioner was appointed PCRA counsel and counsel filed an Amended
Petition for Post Conviction Collateral Relief on February 20, 2015. The Court heard argument
on the Amended Petition on May 4, 2015 aro: . - 26,
2017 The Court ordered briefs to be tiled .vv:tart 43 Upon nioncn ot Peutionw, the
Court extended the time for filing, and both the Commonwealth's and the Petitioner's briefs
were timely submitted oy January 11, 2018.
Petitioner asserts essentially two reasons for relief under the Post Conviction Collateral
Relief Act: 1) that her guilty plea was unlawfully induced and thus not knowing, voluntary, and
intelligent; and 2) ineffective assistance of trial counsel.
The two issues dovetail as Pennsylvania law sets forth that a criminal defendant has the
right to effective assistance of counsel during a plea process as well as during trial.
Commonwealth v. Hickman, 799 A.2d 136, 141 (Pa.Super.2002). Allegations of ineffectiveness
in connection with the entry of a guilty plea will serve as a basis for relief only if the
ineffectiveness caused appellant to enter an involuntary or unknowing plea. Commonwealth v.
Flood, 627 A.2d 1193 (Pa. Super. 1993). A guilty plea will be deemed valid if the totality of the
circumstances surrounding the plea shows that the defendant had a full understanding of the
nature and consequences of his plea such that he knowingly and intelligently entered the plea of
his own accord. Commonwealth v, Martinez, 453 A.2d 940 (Pa. 1982); Commonwealth v.
Fluharty, 632 A.2d 312, 314-15 (Pa.Super. 1993). Pennsylvania law does not require the
defendant to "be pleased with the outcome of his decision to enter a plea of guilty; all that is
required is that his decision to plead guilty be knowingly, voluntarily and intelligently made,"
Commonwealth v. Moser, 921 A.2d 526, 531 (Pa.Super. 2007). Pennsylvania law presumes the
defendant is aware of what he is doing when he enters a guilty plea, and the defendant bears the
burden to prove otherwise. Connnonwealth v. Pollard, 832 A.2d 517, 523 (Pa.Super. 2003).
To evaluate the issues raised in Petitioner Barber's PCRA, we undertake a totality
assessment of the knowing, voluntary, and intelligent character of the plea. Our totality
assessment examines the statements and the understanding of the Petitioner during the Court's
lengthy guilty plea colloquy held on November 14, 2013 wherein the Court engaged in an
extensive dialogue with meaningful participation by the Petitioner throughout.
To support her contention that her plea was not voluntary, Petitioner points to her past
mental health treatment and history of drug and alcohol abuse. Petitioner cites her testimony at
the PCRA hearing on October 26, 2017 wherein she testified that she refused medications and
had psychological difficulties at the Crawford County Correctional Facility immediately prior to
entering her guilty plea. (See Brief in Support of PCRA Petition, p. 4.) Petitioner's Brief
specifically cites PCRA testimony where she testified she was not taking her prescribed
medication leading up to the date of her guilty plea because she thought she did not need it
anymore. (N.T. PCRA Hearing p. 39-42.) She also cites that portion of her testimony reflecting
that her mental state in the few weeks leading up to the entry of her guilty plea "had been fine for
a long time" but that when her co-defendant, Jade Olmstead, came back to Crawford County
from somewhere else, it detrimentally affected her mental state and "everything fell apart again."
2
(N.T PCRA t r _ uc,. k.4-ipaLio c;
goir_g Cri :it th tunc. Jr plea and she it' no leg,'
t uncterstand
`.o
was going on in the two years preceding the plea. PCRA Hearing p. 44.) Petitioner
maintain she was misled by Robert Draudt, her trial counsel, because he led her to believe that
she should "give up" and that "no matter what I had done, no matter what way we went with the
case, either way, that was it." (N. T. PCRA Hearing p. 43; 45.) Although stopping short of
testifying that she communicated to her attorney that she would not or did not want to enter the
plea, Petitioner argues she indicated to her attorney that she wanted to "go other directions"
meaning "other defenses." (N. T. PCRA Hearing p.45.)
The Court was surprised by Petitioner's testimony at the PCRA Hearing because she so
drastically changed her testimony and directly contradicted the clear and unequivocal statements
she made at her guilty plea colloquy on November 14, 2013.
Petitioner's testimony at the guilty plea colloquy on November 14, 2013 evidenced her
clear understanding of the plea and of the process. Petitioner was questioned about her mental
health history and her current mental state and medications. She testified she was taking her
medication in the dosage and manner that the doctors prescribed it. (N. T. Plea Colloquy, p.I 2.)
The Court specifically asked her if she was cheeking or spitting out her medication and she
testified that she was not. (N. T. Plea Colloquy, p. 12.) She testified that she was regularly
taking her prescribed medication and it was helping her and not affecting her ability to
understand the Court. (N, T. Plea Colloquy, p.12-13.) She indicated she was not under the
influence of alcohol or controlled substances other than her prescribed medications and no
substances were impacting her ability to understand the Court. (N. T. Plea Colloquy, p. 13.)
She indicated that despite having had mental health treatment and taking medication to help her
with certain issues, she was comfortable going through the guilty plea proceeding from a mental
health perspective and she understood the conversations with her attorney and with the Court.
(N. T. Plea Colloquy, p.14.) When asked if she believed she was competent, she indicated that
she believed she was competent and she understood what the Court was explaining.. (N. T. Plea
Colloquy, p. 16.)
When the Court pressed her on this and asked her to further specify her understanding of
the process, her answers were as follows:
THE COURT; You understand all the things we've talked about?
MS. BARBER: Yes.
THE COURT: You understood your defenses, the rights you have to proceed at
trial; you understand Mr. Draudt's role; you understand Mr.
Schultz's role; you understand my role; the various staff's roles.
Do you understand all of those things?
3
MS. BARBER: Yes.
THE COURT: And do you believe you have been able to assist Mr. Draudt in
his representation of you over the nine months that have been
leading up to today?
MS. BARBER: Ninety percent of the time, yes.
(N. T. Plea Colloquy, p. 17.)
Petitioner's answer shows her ability to quantify and describe her level of understanding
when she entered her plea. The stated "ninety percent rate" of understanding and assistance is
not only evidence of the Petitioner's belief that she comprehended the legal process to a high
degree, but her language is also evidence of her ability to precisely and easily communicate her
state of mind to the Court on the day she entered her plea.
At another point in the colloquy, after the Court explained the different elements
necessary for the different types of murder and the defenses thereto, the Petitioner again
showed her close attention to the procedure and her detailed understanding as follows:
THE COURT: The defendant is alleged, you're the defendant here, you're
alleged to have on or about May 24, 2012 with malice,
premeditation with specific intent to kill, kill Brandy Stevens. Do
you understand that?
MS. BARBER: No, it was on May 17.
THE COURT: Okay. You're right. It was on May 17.
MR. SCHULTZ: The information says May -
THE COURT: The information says May - well, you know what, I have two
informations. It got corrected. It did. There was an amended
information. So I've got two of them. I grabbed the wrong one.
It's May 17. Thank you for that clarification. And that's the rule
of thumb. If that happens, I say something that's not true, just
like that, tell me it's wrong. We'll deal will (sic) it. We'll fix it,
Okay?
MS. BARBER: Yes.
(N.T. Plea Colloquy, p. 113.)
4
Then, even later in the colloquy, after being advised that !: loi44_, be able to
raise ine issues she raiseo in net Omnibus Pretlia( A/1mm or sii;tt blame 1:: other directions,
Petitioner responded that, "it was nobody else's fault," N.T. Plea Colloquy, p. 160.)
These are three specific examples of the conversational, detail-oriented statements made
by Petitioner that demonstrated she was paying close attention and participatory. She exhibited
both the ability and the desire to communicate her understanding to the Court. She was able to
correct the Court when necessary and demonstrated she was thinking critically during the
process. While Petitioner may have also given many "yes or no" answers during the colloquy,
reading the transcript of the colloquy in its entirety, it is evident that the Petitioner was
appropriately engaged, actively conversational, and sufficiently demonstrated she understood
what she was doing.
Petitioner's PCRA testimony also contradicts her trial counsel's testimony, who
testified at the PCRA hearing. Petitioner's trial counsel, Robert Draudt, testified that he
believed his client was competent to stand trial, believed she was capable of asking him
questions about her case, believed she was capable of giving him intelligent answers, and
believed she was capable of communicating with him during the process. (N.T. PRCA
Hearing, p. 22-23.) Regarding her mental health, Draudt observed that his client's mental
health was stabilized, but at the time of the plea he believed she was competent to enter the
guilty plea. (N.T. PCRA Hearing, p. 29; 31.)
Draudt further testified he never told Petitioner to "give up" but rather that he believed
co-defendant Jade Olmstead's plea actually helped Petitioner's case because Ms. Olmstead's
pleading guilty made it more difficult for Olmstead to blame everything on the Petitioner.
(N.T. PCRA Hearing, p. 14; 24-25; 28.) Rather than talking her into the plea, Draudt testified
that it was the Petitioner who first mentioned wanting to take a plea. (N.T. PCRA Hearing, p.
27.) Further, Draudt testified it was the Petitioner's position that she did not want to put her
family through a trial, and this sentiment did not come from him but rather from the Petitioner
herself. (N.T. PCRA Hearing, p. 27.)
Regarding whether Petitioner was taking her prescribed medication at the time she
entered her plea, Petitioner's PCRA testimony also contradicted the testimony of Dawn
Salsberry, the Health Service Administrator at the Crawford County Correctional Facility
where Petitioner was receiving her medications, Ms. Salsberry testified that she administered
medications to inmates and kept the records relating to inmate medication. Ms. Salsberry
testified that, except for two morning doses and one absence, she had record of Petitioner
consistently taking her medication during the time frame leading up to entry of Petitioner's
guilty plea. (N.T. PCRA Hearing, p. 72-74; 76-78.)
Part of the totality assessment is the observation of Petitioner's conversational
courtroom demeanor during the guilty plea colloquy, the non -pressured nature of the dialogue
Vet:ilJnr. r ilL;..tiv. .ir take breaks
between Petitioner and the Court, tar. ory,irtcv..itos
throughout the proce.t,, and the siosv purpubefully care Li.t explanations i.psen to i-etitiotr.::
(both by the Court and by coutisett prior to entry Dt tier
gurit; oica is4/tlimg about Pztitionei
stress or was having a hard time
demeanor at the colloquy indicated Petitioner was under undue
Petitioner banging her head on
coping with the proceeding. The Court has no recollection of
noted and placed of record.
counsel table and notes this is an action that the Court would have
To the contrary, throughout the colloquy, the Petitioner
appeared calm and the Court would
and level of comfort with
periodically check with the Petitioner to evaluate her understanding
the process. (See e.g. N.T. Plea Colloquy, p. 113.)
process and her plea
The Court notes Petitioner watched a video explaining the plea
facility. She then filled out a
rights in preparation for her plea while she was at the correctional
written plea colloquy and
written plea colloquy in her own handwriting and they went over that
Petitioner received three very
the PSI with her attorney. (N.T. PCRA Hearing 'p. 8-10.) Thus,
ways through the video, the
detailed explanations about the plea process in three different
written plea colloquy, and the extensive oral colloquy with the Court.
with the Court's
Petitioner's observable understanding of the process interrelates
from a mental health issue
finding that Petitioner was taking her medication and not suffering
at the time she entered her plea. Factually, based upon the
testimony of Attorney Draudt, the
testimony of jail representative Dawn Salsberry, and observations
of the Petitioner's demeanor
and was stable and competent.
and participation, we find Petitioner was taking her medication
mentally decompensated
There is nothing in the record to suggest that Petitioner suddenly
Draudt indicated to the
when her co-defendant returned to Crawford County. In fact, Attorney
was "stabilized." Thus, there
contrary when he credibly testified that Petitioner's mental health
her plea.
was simply no valid mental health issue at the time Petitioner entered
answers at the plea
Considering the totality of Petitioner's presumptively truthful
to her, and the testimony of
colloquy, her involvement in the process, the Court's explanations
lack of any valid mental health
her trial counsel and the jail representative, and the complete
voluntary, and intelligent is
issue, Petitioner's argument that her guilty plea was not knowing,
Petitioner's less -than -
undermined and the Court finds the Petitioner's plea was voluntary.
and the Court therefore
credible testimony at the PCRA hearing is insufficient to merit relief
denies relief based upon Petitioner's first PCRA claim.
who pleads guilty is
Although not part of our totality analysis, we note that a defendant
bound by the statements he makes while under oath, and
he may not later assert grounds for
made at his plea colloquy.
withdrawing the plea which contradict the statements he
It is a longstanding rule in
Commonwealth v. Pollard, 832 A.2d 517, 523 (Pa. Super. 2003).
by asserting that he lied while
Pennsylvania that a defendant may not challenge his guilty plea
832 A.2d at 523 (citing
under oath, even if he avers that counsel induced the lies. Pollard,
A person who elects to plead
Commonwealth v. Cappelli, 489 A.2d 813 (Pa. Super. 1985)).
6
ei.C'
to e statements he makes in rat
-./y el 0-11;j ;:j:d '.eta m11 WA ;1. -
MSC:: grouncis ior withdrawing tr.e plea cc:nuad-xi the sta,..ement3 Ile mace at his
1999;
colloquy. Id. (citing Commonwealth v.. Stork, 7 7 A.2d 789, 790-9i (7a Super
defense
Given this rule, the Court clarifies its position that further testimony from
hearing
expert Dr. Christine Marton was not necessary. In advance of the PCRA evidentiary
retained for
the Court made a determination that before it would permit an expert to be
evaluation purposes or be called as a witness on the question of Petitioner's
competency at the
time she entered her plea, it would be appropriate to hear testimony from the
Petitioner herself
what was
as well as counsel and other witnesses. Foundationally, the Court considered
health status at
necessary to determine whether there was a colorable issue regarding her mental
the relevant time surrounding her plea.
the
After hearing from the Defendant/Petitioner and counsel and after weighing
under oath
credibility of the various witnesses and reviewing in detail the Petitioner's answers
that, based upon the
at the colloquy and her interaction with the Court, the Court is satisfied
to the various
entire record, there is no colorable issue as to competency. Petitioner's answers
treatment, and,
questions about her competency, mental health medications, mental health
all lead
frankly, mental health defenses coupled with her answers on the written plea colloquy
entered her plea.
to the clear and inescapable conclusion that she was competent at the time she
time of the
Even if the analysis were based exclusively upon the Defendant's testimony at the
going on, she
PCRA Hearing where she was clearly competent and understood what was
at the
nonetheless still failed to provide a credible foundation to contradict the testimony
colloquy and the Court's own observations of her interactions at the time of
the plea, The
Hearing make
factual inconsistency between her own testimony at the colloquy and the PCRA
that she
is such that the Court is satisfied that the record supports unequivocally the conclusion
was competent and understood the nature of the plea she was entering.
Next we consider Petitioner's argument that her trial counsel was ineffective. Petitioner
experience and
argues that her trial counsel, Robert Draudt, did not have the appropriate
qualifications to counsel her in connection with her guilty plea.
is presumed
When considering an allegation of ineffective assistance of counsel, counsel
pleads and proves that: (1)
to have provided effective representation unless the PCRA petitioner
for his conduct;
the underlying claim is of arguable merit; (2) counsel had no reasonable basis
omission. Commonwealth v, Spotz, 84
and (3) petitioner was prejudiced by counsel's action or
standard, a
A.3d 294, 311 (Pa. 2014), "In order to meet the prejudice prong of the ineffectiveness
unprofessional
defendant must show that there is a 'reasonable probability that but for counsel's
v. Reed, 42
errors, the result of the proceeding would have been different.' "Commonwealth
with the appellant.
A.3d 314, 319 (Pa. Super. 2012). The burden of proving ineffectiveness rests
Commonwealth v. Rega, 933 A.2d 997, 1018 (Pa. 2007), Additionally, we note that counsel
v. Hall, 867
cannot be held ineffective for failing to pursue a meritless claim. Commonwealth
A.2d 619, 632 (Pa.Super. 2005), appeal denied, 895 A.2d 549 (Pa. 2006),
7
s gen,..--a1 he 16 31-
tia 3 te appropriate experience ai:tt cjaiiticauc.r-L- necessa7 I IC adequatCy counst,,.thr
Petitioner in connection with ner gu:!ty plea. narticulariy given the evidence of the Petitioner's
her
mental status:" (Amended PCRA Petition, p. 3. Paragraph 10(d).) Petitioner also argues
attorney failed to fully explain the nature and consequences of the Motion for Change of
Venue
or Venire (Amended PCRA Petition, p. 3. Paragraph 10(b)).
The Petitioner's brief cites to portions of her PCRA testimony wherein the Petitioner
described her knowledge of the law and her belief that she understood her own case better than
her trial counsel. (N.T. PCRA Hearing, p. 45-50.) She references looking through cases and
exploring defenses in the law books provided by Crawford County. She mentions consultations
with a friend of hers who is an attorney and complains that her attorney was not aware of or
qualified for her defense. (N.T. PCRA Hearing, p. 47.) Petitioner points to various other
perceived failures of her trial counsel, ranging from allegations of his alleged failure to provide
her with discovery to his showing her a paper that somehow led her to believe the death penalty
was still a possibility. (N.T. PCRA Hearing, p. 47-50.)
Once again, Petitioner's testimony is contradicted by both her own testimony at her plea
colloquy and the testimony of her trial counsel at the PCRA Hearing. We also note, before we
describe the contradictory parts of her testimony regarding her relationship with Mr. Draudt,
that Petitioner's two PCRA arguments are logically inconsistent. In her first PCRA argument,
Petitioner contends she was not of sound mind, did not understand the process, and was
suffering from a mental health condition that precluded her from understanding and entering a
knowing and voluntary plea. In her second argument, Petitioner portrays herself as a legal
strategist who knew more than her own attorney. She recounts that she researched the law and
consulted with an attorney friend to arrive at the best approach for her case. We note that she
even participated in legal discussion regarding case law when the Court cited a case that
Petitioner stated she had read and understood. (See N.T. Plea Colloquy, p. 19.)
Petitioner's inconsistent arguments further undermine her credibility at the PCRA
Hearing and bolster our confidence in Petitioner's competency. Petitioner entered not just
a
knowing and voluntary plea, but also an intelligent one. Our observation of her understanding
of the legal process, her communications regarding the case law, and her active and involved
her
participation in her defense made it clear that this Petitioner understood the process and
situation. She acted involved and capable in her communications to the Court and to her
her
attorney at the time she entered the plea. Looking at a totality of the circumstances,
attorney's effectiveness is not an issue.
At the guilty plea colloquy, Petitioner not only stated she was satisfied with her attorney
and his representation (N.T. Plea Colloquy, p. 163), she also visibly demonstrated her working
her
relationship with Attorney Draudt through her communications and breaks to consult with
she
attorney regarding parts of the colloquy. (See e.g. N.T. Plea Colloquy, p, 28.) Further,
8
she wanted him to
answered in the affirmative when asked /..riorne;- Draudt did everything
s
do, provided her with discovery, and was. availalia- to speak with
her whenever she wanted.
(N.`ls, ilea Colloquy, p. 163.)
we note that
Evaluating the record in our assessment of Attorney Draudt's performance,
in the following particulars:
Attorney Draudt evidenced his ability to represent the Petitioner
and effectively argued
a) he appeared on behalf of Petitioner at pretrial proceedings and filed
an Omnibus Pretrial Motion in an attempt to suppress her confession
and the initial stop of
of time (N,T. PCRA
Petitioner and also filed motions relating to discovery and extensions
in an attempt to move
Hearing p. 6; 21-23); b) he filed a Motion for Change of Venue/Venire
Hearing p. 13; 18);
the proceedings to a different county to avoid pretrial publicity (N.T. PCRA
c) he filed a competency motion and had his client evaluated by a
psychiatrist and reviewed the
at her competency
doctor's report with Petitioner before effectively representing Petitioner
and spoke with
hearing (N.T. PCRA Hearing p. 7-9); d) he provided his client with discovery
Hearing p. 20-21);
her regularly, even frequently, about the evidence against her (N.T. PCRA
e) he met with Petitioner numerous times at the Crawford
County Correctional Facility
p. 19); 0 he
[approximately 40 times] to discuss Petitioner's case (N.T. PCRA Hearing
an attorney friend of
conferred with other attorneys regarding Petitioner's case (including
with Petitioner's
Petitioner's at Petitioner's request) (N,T. PCRA Hearing p. 6); g) he met
the available
family to discuss the case (N.T. PCRA Hearing p. 21; 15); and f) he explained
(N.T, PCRA Hearing
defenses and/or trial strategies and their possible outcomes to Petitioner.
p. 12-13.)
Petitioner
Petitioner confirmed many of the above details. During the plea colloquy,
him in his
confirmed she was able to communicate with Attorney Draudt to assist
her case with her
representation and that he had been to the jail numerous times to discuss
(N,T, Plea Colloquy, p. 16; 20). She confirmed that they spent a lot of
time talking about her
case. (N.T. Plea Colloquy, p. 32.) She said she had a sufficient
amount of time to talk to
Draudt about giving
Draudt about her case. (N.T. Plea Colloquy, p. 114; 163). She spoke with
She confirmed that he
up her right to appeal the pretrial rulings, (N.T. Plea Colloquy, p. 163.)
written plea colloquy
explained all of her post sentence rights and thoroughly went over the
the relevant case
with her. (N.T. Plea Colloquy, p. 72-72; 9.) She explained how she discussed
was satisfied with his
law with Attorney Draudt. (N.T. Plea Colloquy, p. 20.) She said she
do. (N.T. Plea Colloquy,
representation and that he had done everything she had asked him to
p. 163.) She acknowledged that Draudt was available to speak with
her whenever she wanted,
that he answered her questions and provided her with discovery. (N.T.
Plea Colloquy, p. 163.)
discussed all of her
Also, at the PCRA Hearing, Petitioner confirmed that she had
PCRA Hearing, p. 36.)
mental health issues and their implications with Attorney Draudt (N.T.
and she confirmed that they also discussed details of her case
like the timing of sentencing
Hearing, p. 61), and the
(N.T. PCRA Hearing, p. 44), the Omnibus Pretrial Motion (N.T. PCRA
p. 61). Further, she
implications of being examined by Dr. Marton (N.T. PCRA Hearing,
9
speciricatly fIcitnEtkvi that she never complained about Attorney Draudt's representation. (N.T
?CR A heann2: p 6 .)
. 1.
Considering the above listing of Attorney Draudt's actions in his representation of
Petitioner and the confirmation of those actions by Petitioner, we find Attorney Draudt acted
with sufficient effort and experience throughout the pretrial stages and up through the time of
the plea colloquy to satisfy the Court that he effectively represented the Petitioner and had a
reasonable basis for the above -listed conduct in his representation of Petitioner.
The Court also notes, in light of Petitioner's testimony at the PCRA Hearing, that the
death penalty was never part of this case. We find Attorney Draudt's testimony credible (N.T.
PCRA Hearing p. 28) and further note that Attorney Draudt is not death qualified and would
not have been appointed by the Court to represent this Petitioner if the death penalty were in
any way at issue. Any implication by Petitioner that the issue of the death penalty somehow
impacted her representation or her ability to understand her plea is without merit and
inconsistent with all credible evidence of record.
The same can be said about Petitioner's complaint that she did not understand the
impact of being sentenced directly after entering her guilty plea, which we also find not
credible. The issue was clearly raised and carefully explained by the Court at the plea colloquy,
and Petitioner testified she understood the impact of the timing of sentencing (N.T. Guilty Plea
Colloquy, p. 1 64- 1 65 .)
With regard to Petitioner's statement at the PCRA Hearing that she wanted to pursue
"other defenses," to complete our PCRA analysis and meet the test for effectiveness set forth in
the case law, we next evaluate whether the legal decision to take the plea rather than moving
forward to trial on any available defense resulted in prejudice to Petitioner and whether a
different approach would have changed the result of the proceeding.
In Petitioner's Brief in Support of her PCRA Petition, she excerpts portions of her
PCRA testimony describing Petitioner's research in law books and how she would bring
defenses to her attorney's attention after talking with her attorney friend. According to
Petitioner, Attorney Draudt would not have known about these defenses if it were not for her.
Although we do not find this statement credible in light of the testimony of Attorney Draudt,
even assuming arguendo that Attorney Draudt only became aware of the need to find a
competency expert to examine the Defendant after communicating with his client, this would
not have changed the outcome. Competency was questioned. An expert was retained. Two
psychiatric reports were prepared and submitted to the Court. The Court held a hearing on
competency and found Petitioner to be competent. Then Petitioner made a knowing, voluntary,
and intelligent decision to enter a guilty plea after full consultation with her counsel.
The Court finds Attorney Draudt credible and finds that he did not encourage or compel
his client to enter a plea but rather felt that the case had improved. He was prepared or at least
10
nott;:-. prepare:: It
incticatet-4 a uesire to enter a plea and convoed same to counsel. Thosc issues were explored
detail throughout the colloquy.
Attorney Draudt had developed and was prepared to present any available applicable
defense at trial. From a trial, perspective, Attorney Draudt was glad that Petitioner's co-
defendant entered a guilty plea "because that removed any impetus for her to, you know, cast
blame on my client." (N.T. PCRA Hearing, p.. 11.) He also believed that Petitioner's co-
defendant's plea removed the possibility of the Commonwealth using Olmstead as a witness
and this was good for Petitioner's case. (N.T. PCRA Hearing, p. 24-25.) Then, despite
Attorney Draudt's efforts to move the case forward to trial, it was the Petitioner who brought
up her desire to enter a guilty plea and it was the Petitioner who decided that she did not want
to go trial because she did not want to put her family through a trial. (See N.T. PCRA Hearing,
p. 27.) Therefore, to the extent that Petitioner believed that any defenses had merit, for
Petitioner to suggest somehow that it was her counsel who encouraged her to abandon those
defenses is contrary to the facts.
To summarize, the suggestion that somehow her decision to enter the plea was based
upon counsel's unpreparedness or lack of understanding of the law is simply inconsistent with
the factual testimony at the time of the entry of the plea and sentencing and the credible
testimony from the PCRA Hearing. There are no credible facts of record that lead to the
conclusion that the Defendant was compelled to enter a plea. Rather, her decision was
knowingly, voluntarily, and intelligently made after consulting with counsel and her family
after thoroughly going over the case in detail and considering available defenses. The Court
combines this observation with the equally compelling fact that the details of the actual incident
conveyed by Petitioner meet the elements of first degree murder without presenting a viable
defense. To the extent that there would be other defenses that did not involve the actual
conduct but focus on the Petitioner's state of mind, once again, her answers at the time of the
colloquy and her exchanges with the Court under oath eliminate those issues from further
reasonable consideration.
The fact that now in retrospect Petitioner believes her choice to enter a plea was wrong
or not a good conclusion on her part does not lead to the conclusion that it was a result of
counsel's error, lack of explanation, or lack of preparedness or effectiveness. In contrast, the
credible testimony of Attorney Draudt points to the conclusion that counsel was not the moving
force behind the plea, nor was it his desire that the Defendant enter a plea, and a factual
foundation for first degree murder was well established at the time of the plea.
Because we find a totality of the circumstances shows Petitioner entered a knowing,
voluntary, and intelligent guilty plea that was not compelled, forced, or even minimally caused
by any action or inaction of Attorney Draudt whose representation was sufficiently effective,
Petitioner's PCRA is without merit.
11
ACCORDINGLY, we enter the following ORDER:
12
ORDER
Mark D. Stevens, J. Niev 2018
AND NOW, this day of May 2018, it is hereby ORDERED that Petitioner's
Amended Petition for Post. Conviction Collateral Relief is hereby DENIED.
BY THE COURT:
/(Y J.
13