Opinion
625 MDA 2021 626 MDA 2021 J-S34031-21
02-23-2022
COMMONWEALTH OF PENNSYLVANIA v. NASIR ANTHONY MALIK GRANT Appellant COMMONWEALTH OF PENNSYLVANIA v. NASIR ANTHONY GRANT Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order Entered April 22, 2021 In the Court of Common Pleas of Dauphin County Criminal Division at No(s): CP-22-CR-0001705-2019, CP-22-CR-0001532-2019
BEFORE: DUBOW, J., McLAUGHLIN, J., and McCAFFERY, J.
MEMORANDUM
DUBOW, J.
Appellant, Nasir Anthony Malik Grant, appeals from the orders entered at two criminal dockets in the Dauphin County Court of Common Pleas denying his first petition filed pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S. §§ 9541-46. After careful review, we affirm.
At a plea hearing held January 21, 2020, Appellant entered a negotiated guilty plea to firearms and other offenses. Appellant admitted that on March 1 13, 2019, he caused a hit-and-run collision while driving a stolen vehicle, then fled from the police. Appellant reached speeds up to 125 miles-per-hour before abandoning his vehicle and continuing to flee on foot. When police eventually caught Appellant, he was in possession of a 9-millimeter handgun and "a large amount of crack cocaine, heroin, and methamphetamine pills. [Appellant] also has a prior conviction for a delivery of a controlled substance making him a person[] not to possess [a firearm]." PCRA Ct. Op., 4/21/21, at 1 n.1.
The Commonwealth charged Appellant with three counts of Possession with Intent to Deliver a Controlled Substance and one count each of Persons Not to Possess Firearms, Firearms Not to be Carried Without a License, Recklessly Endangering Another Person, Receiving Stolen Property, Flight to Avoid Apprehension, Fleeing or Attempting to Elude Police Officer, Driving While Operating Privilege Suspended or Revoked, Accidents Involving Damage to Attended Vehicle or Property, and Duty to Give Information and Render Aid. 35 P.S. § 780-113(a)(30), 18 Pa.C.S. §§ 6105(a)(1), 6106(a)(1), 2705, 3925(a), 5126(a), 75 Pa.C.S. §§ 3733(a), 1543(a), 3743(a), 3744(a), respectively. Appellant pleaded guilty to all charges.
Pursuant to the negotiated plea, the court immediately sentenced Appellant to an aggregate term of 4 to 10 years' incarceration. Relevant to the instant appeal, Appellant's sentence did not include participation in boot camp. Appellant did not file a direct appeal.
On June 5, 2020, Appellant pro se filed a timely PCRA petition, his first. The PCRA court appointed counsel who, on July 30, 2020, filed an amended petition alleging ineffective assistance of plea counsel ("IAC") for, inter alia, allegedly misleading Appellant into believing his plea deal included participation in boot camp. 2
On December 18, 2020, the PCRA court held a hearing at which Appellant and his plea counsel testified. On April 26, 2021, the court dismissed Appellant's petition. Appellant timely filed a Notice of Appeal and both he and the PCRA court complied with Pa.R.A.P. 1925.
Appellant raises a single issue for our review:
Whether the trial court erred in dismissing [Appellant's] PCRA petitions when plea counsel was ineffective for advising Appellant that he was eligible to participate in a boot-camp program while incarcerated, where such advice was erroneous and material to Appellant's decision to accept the plea [deal]?Appellant's Br. at 8 (unpaginated).
Appellant also alleges that "counsel specifically and erroneously advised him of an incorrect prior record score" based on a mistaken belief that Appellant was born in 1995 rather than 1999. Appellant's Br. at 17. Appellant did not include this issue in his Statement of Questions Involved and it is not fairly suggested thereby; thus, it is waived. See Pa.R.A.P. 2116 ("No question will be considered unless it is stated in the statement of questions involved or is fairly suggested thereby.").
Appellant alleges that his plea counsel errantly advised him that his negotiated sentence would include participation in boot camp. Id. at 14, 16-19. Appellant avers that, but-for counsel's reference to boot camp, he would not have accepted the deal and would have, instead, gone to trial. Id. at 18.
In reviewing an appeal from the denial of PCRA relief, "this Court is limited to ascertaining whether the evidence supports the determination of the PCRA court and whether the ruling is free of legal error." Commonwealth v. Andrews, 158 A.3d 1260, 1263 (Pa. Super. 2017) (citation omitted). Our scope of review is restricted to the findings of the PCRA court and the evidence 3 of record and must view these in a light most favorable to the Commonwealth as the prevailing party. Commonwealth v. Medina, 92 A.3d 1210, 1214 (Pa. Super. 2014). Crucially, the PCRA court's credibility determinations are binding on this Court when supported by the record. Commonwealth v. Spotz, 18 A.3d 244, 259 (Pa. Super. 2011).
Appellant alleges that his plea counsel was ineffective. We presume counsel is effective. Commonwealth v. Cox, 983 A.2d 666, 678 (Pa. 2009). To overcome this presumption, a petitioner must establish that: (1) the underlying claim has arguable merit; (2) counsel lacked a reasonable basis for his act or omission; and (3) petitioner suffered actual prejudice. Commonwealth v. Treiber, 121 A.3d 435, 445 (Pa. 2015). To establish prejudice for ineffective assistance of plea counsel, the petitioner must prove a reasonable probability that but-for counsel's error, the petitioner would have insisted on going to trial. Commonwealth v. Pier, 182 A.3d 476, 479 (Pa. Super. 2018). A claim will be denied if the petitioner fails to meet any one of these prongs. Commonwealth v. Daniels, 963 A.2d 409, 419 (Pa. 2009).
In the instant case Appellant testified that he asked plea counsel if "boot camp [was] an option" if he pleaded guilty. N.T. PCRA Hr'g, 12/18/20, at 5. According to Appellant, plea counsel responded: "boot camp can be waived in during the sentencing process." Id. Appellant understood this response to mean that his sentence would include boot camp, and it was the "only reason 4 [he] stepped up and signed the [plea agreement.]" Id. Appellant's testimony was the sole evidence presented at his PCRA hearing that, but-for counsel's reference to boot camp, Appellant would have insisted on going to trial.
Appellant also cites to a statement plea counsel made during sentencing, after Appellant had entered his plea, that Appellant was "looking forward to [quitting the use of illegal drugs] through boot camp[.]" N.T. Plea Hr'g, 1/21/20, at 7. There was no further mention of boot camp at Appellant's plea hearing.
In its opinion, the PCRA court explained that it did not find Appellant's testimony that he would have gone to trial to be credible. PCRA Ct. Op., 4/21/21, at 7. In support, the court cited (1) the 104-year maximum sentence Appellant would have faced if convicted of all charges at trial; (2) the "disturbing" facts of the case; and (3) that Appellant had a prior conviction for delivery of a controlled substance, thus making him a person not to possess a firearm. Id. at 1 n.1, 7.
Given its credibility finding and the lack of other relevant evidence, the PCRA court found that Appellant failed to prove that plea counsel's conduct caused him to suffer prejudice. PCRA Ct. Op. at 7. As a result, it concluded that Appellant's ineffective assistance of counsel claim failed. Id. at 7-8.
The record supports the PCRA court's credibility finding and, thus, we defer to it. See N.T. Plea Hr'g, 1/21/20, at 3-6 (recounting on the record the facts of underlying incident and Appellant's criminal history); Written Plea Colloquy, 1/21/20 (listing maximum aggregate sentence for all convictions). Given the court's credibility determination and the absence of other relevant 5 evidence, we agree with the PCRA court that Appellant failed to prove that plea counsel's stewardship caused him to suffer prejudice. As a result, we affirm the court's order dismissing Appellant's PCRA petition.
Order affirmed.
Judge McLaughlin files a concurring statement in which Judge Dubow joins.
Judge McCaffery files a dissenting memorandum.
Judgment Entered. 6
CONCURRING STATEMENT
McLAUGHLIN, J.
I join the majority in full. As the dissent points out, defense counsel made a statement on the record during the plea hearing suggesting that Grant was eligible for boot camp. Counsel said that Grant was "looking forward to" making a change "through boot camp." N.T., 1/21/20, at 7. That statement lends some support to Grant's testimony that his attorney told him the Commonwealth could waive Grant's ineligibility for boot camp. The PCRA court 1 unfortunately did not make an explicit finding of fact one way or the other as to whether counsel ever gave Grant such advice.
Nonetheless, as the majority explains, the PCRA court did find as a fact that Grant would have pleaded guilty even if counsel had not allegedly misinformed him about his eligibility for bootcamp. In view of that finding, I agree that Grant failed to carry his burden to prove prejudice.
Judge Dubow joins the concurring statement. 2
DISSENTING MEMORANDUM
McCAFFERY, J.
As I would reverse the orders of the PCRA court denying Appellant's PCRA petition, I respectfully dissent.
The Majority aptly summarizes the factual allegations underlying Appellant's multiple charges. The Majority also properly sets forth the relevant law. See Majority Memo. at 1-4. I consider, however, in detail statements 1 made at the January 21, 2020, combined plea and sentencing hearing, as well as the testimony at the December 18, 2020, PCRA hearing. The same judge presided over both the plea and PCRA proceedings.
Appellant entered a negotiated guilty plea to multiple counts across two trial dockets, with the parties agreeing to an aggregate sentence of four to 10 years' incarceration. In his oral colloquy, Appellant acknowledged he understood the negotiated sentence was four to 10 years' imprisonment, and stated he had no further questions about the sentence. N.T., 1/21/20, at 6.
Relevant to this appeal, Appellant's attorney, William Shreve, Esquire (Plea Counsel), referred to boot camp in argument to the trial court:
[Appellant] is 20 years old. He is very forthright in explaining that . . . this conduct is directly related to his use of illegal drugs. He's looking forward to making that change. Obviously, it is going to be through the assistance of the state correctional system, but he is looking forward to that change through boot camp. . . .N.T., 1/21/20, at 7 (emphasis added). There was no further mention of boot camp, by Plea Counsel, the Commonwealth, or the trial court, nor was there any reference to boot camp in Appellant's written plea colloquy.
Subsequently, Appellant's July 30, 2020, timely, counseled amended PCRA petition alleged Plea Counsel provided ineffective assistance by: (1) mistakenly advising Appellant he was eligible for the prison boot camp program, where his plea to a firearms offense precluded his eligibility, unless the Commonwealth agreed to his eligibility; and (2) "erroneously advis[ing 2 him] of an incorrect prior record score." Appellant's Amended PCRA Petition at 5, 7, 9.
The PCRA court conducted an evidentiary hearing on December 18, 2020. Appellant appeared by video and testified to the following. On the day of the plea hearing, Plea Counsel informed him the Commonwealth was offering a plea deal, under which Appellant would plead to all charges and receive an aggregate four-to-10 year sentence. N.T., 12/18/20, at 5. Appellant asked whether boot camp was "an option," and Plea Counsel replied, "[B]oot camp can be waived in during the sentencing process." Id. Appellant believed boot camp was a part of the plea deal and it was "the only reason" he accepted it. Id. Had he known he was not eligible for boot camp, he would not have agreed to the plea deal. Id. at 6. Appellant first learned he was not, in fact, boot camp-eligible when Plea Counsel subsequently sent him a letter, advising him he was not eligible "based upon the length of the sentence[.]" Id. at 11.
Plea Counsel testified by telephone to the following. Prior to the plea hearing, he was aware that Appellant wished to participate in boot camp. N.T., 12/18/20, at 18. Plea Counsel asked the assistant district attorney (ADA) if they "would waive his ineligibility for boot camp." Id. at 19. The ADA responded, however, that "the Commonwealth would not waive his ineligibility," and in any event, "it was her understanding the Department of Corrections really didn't care if the Commonwealth did waive someone's 3 ineligibility for boot camp . . . he wouldn't be able to do that anyway." Id. at 19.
Plea Counsel further testified to the following. The Commonwealth offered the plea deal on the day of the plea hearing, January 21, 2020, and stated the offer would expire that same day. N.T., 12/18/20, at 17. Counsel could not recall specifically what he and Appellant discussed that day regarding the plea offer. Id. When asked whether Appellant "asked . . . specifically about his eligibility for boot camp," Plea Counsel responded, "I don't specifically recall that." Id. Plea Counsel further testified that when Appellant's present counsel informed him that he did advise Appellant he was boot camp-eligible, Plea Counsel stated, "[T]hat's ridiculous because he had a gun and that would have . . . made him ineligible." Id. Nevertheless, Plea Counsel acknowledged that he referred to boot camp at the plea hearing in argument to the trial court. Id. at 18.
On appeal, Appellant avers Plea Counsel was ineffective for mis-advising him he was eligible for the prison boot camp program, and this erroneous advice "was material to [his] decision to accept the plea bargain." Appellant's Brief at 15, 16. In support, Appellant cites Plea Counsel's statement, at the plea hearing, that Appellant was "looking forward to . . . change through boot camp." Id. at 16 (citation omitted). Appellant also refers to Plea Counsel's testimony, at the PCRA hearing, "that he [discussed] boot camp with both Appellant and the Deputy District Attorney[, ] but never requested, at the time 4 of sentencing, that Appellant be made boot camp eligible." Id. at 17. Appellant contends "he was prejudiced by his counsel's advice and may have elected to go to trial had he known that he was not eligible for boot camp." Id. at 16. Appellant relies on Commonwealth v. Hickman, 799 A.2d 136 (Pa. Super. 2002), which held the defendant was "prejudiced by his plea counsel's advice to plead guilty on the mistaken belief [the defendant] would be eligible for boot camp and" thus the guilty plea was invalid. Id. at 16. Appellant requests relief in the form of withdrawal of his guilty plea, resentencing, and/or eligibility for boot camp. Id. I would conclude that he is entitled to relief.
In considering Appellant's claim, the PCRA court acknowledged Plea Counsel's "passing reference," at the plea hearing, that Appellant "was looking forward to a change through the boot camp program." Memorandum Order at 6. Nevertheless, the court observed there was no other mention of boot camp, and specifically, the "[t]he Commonwealth did not indicate, on the record, that it would waive [Appellant's] ineligibility into boot camp." Id. The court concluded:
There is no evidence to suggest that [Appellant] would have gone to trial and that the outcome of the proceeding would have been different.[FN Appellant] did testify at [the] PCRA hearing that *but for' the boot camp eligibility, [he] would have elected to proceed to trial. This Court simply does not find that testimony credible. The charges that were set forth and the maximum punishment that [Appellant] was facing indicate the contrary. [Appellant] did not present any witnesses at the PCRA hearing that would have contradicted the testimony presented by the Commonwealth at the time of the guilty plea. There was also5
no mention of a possible trial strategy or mention by [Appellant] that he was indeed innocent of the crimes charged.
[FN] To the contrary, had [Appellant] proceeded to trial and been· found guilty of all charges, he would have faced a significant prison sentence.Id. at 7 & n.3 (emphasis added).
We note the victim in this matter - the other driver - reported the license plate of Appellant's car to police. N.T., 1/21/20, at 3. Police officers observed Appellant flee on foot from the car, subsequently apprehended him, and recovered a gun, crack cocaine, heroin, and methamphetamine pills from his person. Id. at 5.
Finally, the PCRA court found unpersuasive Appellant's reliance on Hickman:
In Hickman, our Superior Court held that counsel's incorrect advice that defendant would be eligible for boot camp program constituted ineffective assistance. However, in Hickman, the Commonwealth agreed that if he were otherwise eligible, it would have no objection to him participating in the boot camp program. It was even mentioned that the understanding of the agreement was for a four to eight year sentence with boot camp eligibility. [Hickman, 799 A.2d at 139.] The trial judge's sentencing order further indicated that the [defendant be deemed boot camp eligible as soon as the State determines he has served enough time. Id.
In the case at hand, the written guilty plea colloquy form which contained the terms of the plea agreement is void of any mention of boot camp eligibility. Additionally, at the time of the guilty plea and sentencing, no mention was made by the Commonwealth or the defense that boot camp eligibility was part of the agreement. Here, plea counsel merely mentioned in his closing remarks to the court that [Appellant] was looking forward to making a change through the boot camp program. This Court does not find that counsel's assistance falls below the "wide range of professionally competent assistance" demanded by the Sixth Amendment.6 Memorandum Order at 5 (some citations omitted).
I agree with the PCRA court that the facts presented in the case sub judice are distinguishable from those in Hickman. Nevertheless, I am persuaded by Appellant's arguments that he is entitled to relief. Plea Counsel was not merely aware of Appellant's desire to participate in boot camp; Plea Counsel contacted the ADA and requested boot-camp eligibility, but the ADA did not agree to it. N.T., 12/18/20, at 18-19. Appellant testified that on the day of the plea hearing, Plea Counsel told him the Commonwealth would "waive" his ineligibility - while Plea Counsel could not recall if they discussed boot camp that day. Id. at 5, 11, 17.
Under the circumstances presented, I disagree with the PCRA court's characterization of Plea Counsel's plea-hearing reference to boot camp as a "passing reference" that carried little or no significance. See Memorandum Order at 6. Plea Counsel specifically argued Appellant was "looking forward" to rehabilitation through boot camp. N.T., 1/21/20, at 7. There was no objection by the Commonwealth, nor any attempt by the trial court, the Commonwealth, or Plea Counsel to correct or question this misstatement. Appellant, a layperson, would only understand - as he testified - that his sentence would include boot camp. See N.T., 12/18/20, at 5 (indicating he thought boot camp "was part of the deal").
For the foregoing reasons, I would conclude the PCRA court erred in denying relief on Appellant's boot camp-claim. Under the particular facts 7 presented, Appellant has established that counsel's conduct caused him "to enter an involuntary or unknowing plea." See Wah, 42 A.3d at 338-39. Thus, I would reverse the order denying his PCRA petition, and remand for the PCRA court to conduct a hearing to determine whether Appellant wishes to withdraw his guilty pleas at both dockets. I would further direct the Commonwealth to advise the court and Appellant as to whether it will agree to boot-camp eligibility.
I offer no opinion as to whether Appellant should be deemed eligible for boot camp.
At this juncture, I note the Majority has deemed waived Appellant's additional claim - that the Commonwealth misstated his birth year and thus his prior record score was calculated incorrectly. In light of my above discussion, I would not reach this issue, but note that if this case ultimately proceeds to re-sentencing, the parties and trial court may revisit any issues concerning Appellant's prior record score and/or sentencing guidelines.
For the foregoing reasons, I respectfully dissent. 8