COM. v. SHEKERKO
432 Pa.Super. 610 (1994)
639 A.2d 810
COMMONWEALTH of Pennsylvania v. Harvey SHEKERKO, Appellant.
Superior Court of Pennsylvania.
Filed March 28, 1994.
David K. Fonner, Somerset, for appellant.
John W. McIlvaine, Asst. Dist. Atty., Washington, for Com., appellee.
Before CIRILLO, OLSZEWSKI and HESTER, JJ.
This is an appeal from an order of the Court of Common Pleas of Greene County denying appellant Harvey Shekerko's petition for post-conviction relief. We affirm.
Harvey Shekerko lived with his four young children in Waynesburg. He dated Linda Caldwell, who had two children of her own. Ms. Caldwell and her children would frequently spend the night at Shekerko's residence. On the evening of March 20, 1984, Shekerko and Caldwell went to a local tavern, leaving Shekerko's oldest child to watch the other children. Shekerko and Caldwell returned late that evening. As a result of an argument, Shekerko did not sleep in the bedroom with Caldwell that evening.
On March 21, Caldwell's son, age four, was found at the bottom of the basement steps. Shekerko alleged that he found the child at the bottom of the steps and saw that he was bleeding from his mouth. Fearing that he would be blamed for the child's injuries, Shekerko stated that he laid the child back down and returned upstairs to bed. Shekerko denied responsibility for the child's injuries, but admitted that he failed to act at a time when he could have obtained aid for the child.
After Shekerko's son found the child, Shekerko called an ambulance and the police. The victim was pronounced dead at the scene; his body exhibited multiple external injuries of various ages, including lacerations and burns on his buttocks and back, extensive internal injuries to the blood vessels and lungs, and a lacerated liver.
On March 30, 1984, Shekerko was arrested and charged with criminal homicide. He entered a plea of guilty to a charge of third-degree murder. 18 Pa.C.S. § 2502(c). The court sentenced Shekerko to a term of imprisonment of ten to twenty years. Shekerko filed a motion for reconsideration of sentence, which was denied. Shekerko subsequently filed a post-conviction relief petition, which was denied.
On appeal to this court, Shekerko's appellate rights were reinstated nunc pro tunc. Attorney Harry Cancelmi was
Two years later, on November 13, 1989, Shekerko filed another petition for post-conviction relief. Attorney Louis Dayich was appointed to represent Shekerko. Shekerko then filed a petition for appointment of new counsel, which was denied. In his petition for post-conviction relief, Shekerko alleged that his plea was not voluntarily and intelligently made since he was not made aware of the permissible range of sentences which the court could impose. Shekerko contended that he was informed that he faced a maximum sentence of ten years.
After a hearing, Shekerko's petition for post-conviction relief was denied. This appeal followed. New counsel, D. Kent Fonner, was appointed to represent Shekerko.
Shekerko raises the following issues for our review:
Since Shekerko's claims are related, we will discuss them together. Pursuant to the Post Conviction Relief Act, 42 Pa.C.S. § 9541 et seq., a petitioner is eligible for collateral relief if he or she pleads and proves by a preponderance of the evidence
42 Pa.C.S. § 9543(a)(2). Because Shekerko entered a guilty plea, the truth-determining process is not implicated. Thus, we confine our review to Shekerko's claim under section 9543(a)(2)(iii), concerning the lawfulness of his guilty plea.
One who pleads guilty consents to a waiver of treasured rights. See Commonwealth v. Flood, 426 Pa.Super. 555, 564, 627 A.2d 1193, 1198 (1993). In order to be valid, a guilty plea must be knowing, intelligent and voluntary. Pa. R.Crim.P. 319; Commonwealth v. Sauter, 389 Pa.Super. 484, 567 A.2d 707 (1989), appeal denied, 525 Pa. 598, 575 A.2d 564 (1990). A guilty plea colloquy must include an inquiry into whether: (1) the defendant understands the nature of the charge to which he is pleading guilty; (2) there is a factual basis for the plea; (3) the defendant understands that he has the right to a jury trial; (4) the defendant understands that he is presumed innocent until found guilty; (5) the defendant is aware of the permissible range of sentences; and (6) the defendant is aware that the court is not bound by the terms of any plea agreement unless it accepts the agreement. See Commonwealth v. Willis, 471 Pa. 50, 369 A.2d 1189 (1977).
The notes of testimony establish that Shekerko was aware that he was charged with criminal homicide, that he was
Shekerko also indicated that there had been no threats or promises made to encourage the entry of a guilty plea.
The point in the colloquy to which Shekerko refers in support of his argument that he was unaware of the permissible range of sentence is the following exchange during the colloquy, initiated by one of his attorneys, Mr. Paul Gettleman:
Shekerko contends that based upon this statement, he was of the belief that the maximum term of imprisonment to which he was subject was ten years, not twenty years as set forth in the statute. Our review of the transcript of the guilty plea colloquy reveals no statement with respect to the range of permissible sentences for third-degree murder.
Sentencing Transcript, March 25, 1985, p. 8.
Additionally, at no time, either before or after sentencing, did Shekerko file a petition to withdraw his guilty plea, nor was this claim raised in his first petition for post-conviction relief or on direct appeal. To avoid these procedural hurdles, Shekerko now raises this claim in the context of counsel's alleged ineffectiveness. Because "a plea of guilty effectively waives all non-jurisdictional defects and defenses," Commonwealth v. Gibson 385 Pa.Super. 571, 561 A.2d 1240 (1989), appeal denied, 525 Pa. 642, 581 A.2d 568 (1990), "after sentencing, allegations of ineffectiveness of counsel in this context provide a basis for withdrawal of the plea only where there is a causal nexus between counsel's ineffectiveness, if any, and an
Our standard of review when evaluating an ineffectiveness claim is well settled. We must first determine whether the underlying issue is of arguable merit. Commonwealth v. Johnson, 527 Pa. 118, 122, 588 A.2d 1303, 1305 (1991). If the claim is without merit, our inquiry ends because counsel will be not deemed ineffective for failing to raise a meritless claim. Id. If the underlying claim has merit, the appellant must establish that counsel's course of action had no reasonable basis designed to effectuate the client's interests and, finally, that the ineffectiveness prejudiced the client's right to a fair trial. Id.; Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987).
We now inquire into the merits of Shekerko's claim and whether Shekerko was "misled or misinformed" or acted under "misguided influence when entering the guilty plea." Flood, 426 Pa.Super. at 568, 627 A.2d at 1199. "[W]here a plea bargain has been entered into by an accused represented by counsel, the surrounding circumstances of the plea may sufficiently indicate that the appellant pleaded knowingly and voluntarily even though he was not apprised on the record of the possible range of sentence." Commonwealth v. Martin, 258 Pa.Super. 412, 415, 392 A.2d 860, 862 (1978). See also Commonwealth v. Owens, 321 Pa.Super. 122, 467 A.2d 1159 (1983). As this court stated in Martin:
Martin, 258 Pa.Super. at 415, 392 A.2d at 862 (emphasis added).
A careful review of the record and the circumstances in this case indicates that the holding in Martin is applicable here. Shekerko's attempt to withdraw his plea under the guise of an ineffectiveness claim at this late stage is not justified under these circumstances. There is nothing on the record which would indicate that Shekerko did not understand the nature and effect of his guilty plea; the fact that he was not informed of the maximum sentence during the colloquy, but rather just prior to sentencing, is not sufficient to invalidate the plea. Martin, 258 Pa.Super. at 415, 392 A.2d at 862. We conclude, therefore, that Shekerko's plea was knowingly and voluntarily entered and that counsel was not ineffective. Johnson, supra.
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