Opinion
1168 WDA 2023 J-S29028-24
10-01-2024
COMMONWEALTH OF PENNSYLVANIA v. DENNIS L. PENHOLLOW JR. Appellant
Benjamin D. Kohler, Esq.
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
Appeal from the PCRA Order Entered September 7, 2023 In the Court of Common Pleas of Jefferson County Criminal Division at No(s): CP-33-CR-0000147-2021
Benjamin D. Kohler, Esq.
BEFORE: DUBOW, J., KING, J., and BENDER, P.J.E.
MEMORANDUM
KING, J.
Appellant, Dennis L. Penhollow Jr., appeals from the order entered in the Jefferson County Court of Common Pleas, which denied his first petition filed pursuant to the Post Conviction Relief Act ("PCRA"). We affirm.
This Court has previously set forth the relevant facts and some of the procedural history of this case as follows:
According to the affidavit of probable cause of Pennsylvania State Police Trooper Kyle Lowry (Trooper Lowry) dated January 25, 2021, Trooper Lowry was dispatched to the scene of an assault at 228 Main Street, Anita, Pennsylvania. Affidavit of Probable Cause, filed 2/8/21, at 1. Trooper Lowry explained:
At the residence, patrol members met with victims Megan Montini (Montini), George Slider (Slider), and Dennis Dinger (Dinger). Montini was observed covered in blood and with a laceration on her head
and a black eye from the assault[.] Montini was subsequently rushed to the Punxsutawney ER via ambulance.
When questioned on scene[,] Slider and Dinger related they arrived at the residence and observed a gray Hyundai Elantra with a New York registration parked in front of Slider's apartment. Both Slider and Dinger entered the residence and were confronted with two males brandishing knives. The two males subsequently chased Slider and Dinger out of the residence while ... brandishing the knives. Slider and Dinger then observed the two males entering the gray Hyundai Elantra and fleeing towards Punxsutawney. Slider related the only person he knew from New York was Blake Truver (Truver), who matched the description of one of the males.
The vehicle description was relayed to dispatch, who forwarded it to Patrol members. The vehicle was subsequently observed by a PSP Patrol member traveling north on State Route 37 toward Brookville, PA. A traffic stop was initiated; however the vehicle then fled north of SR 36 leading troopers on a pursuit that ended with the vehicle crashing. Truver was identified as the driver of the vehicle while Appellant was identified as the front seat passenger. ... Both Truver and Appellant were life flighted from the scene to Erie, PA.
The vehicle was towed back to PSP Punxsutawney[.] Inside the vehicle in plain view [were] guitars with an amplifier, knives matching the description provided by Slider and Dinger and a cellphone matching the description provided by Montini.Id. at 1-2.
At the hospital, Montini described the incident to Trooper Lowry, who included the following details in his affidavit of probable cause:
... Montini described the incident as at approximately 1000 hours, one male arrived at her house and
related, "surprise it's Mike". Not knowing who the male was Montini shut the door. Montini relayed approximately 15-20 minutes later, the same male arrived back at her residence. ... While communicating with the one male, she slightly opened the door [and was] struck in the top of the head with a tire iron. The actor then proceeded to strike her numerous times with a closed fist and held her down while the other actor stole seven firearms, guitars, a cell phone, car keys and her purse. ... Montini was treated at the Punxsutawney hospital for a laceration to the head requiring stiches and a CT scan to determine the extent of her injuries.
Montini was interviewed at the PSP Punxsutawney, during this interview Montini explained that while being held down by one actor (Truver), the other actor (Appellant) was yelling "just do it, just stab her. Spill her blood more."Id. at 2.
On January 25, 2021, the Commonwealth filed a criminal information charging Appellant with [burglary, conspiracy to commit burglary, robbery, aggravated assault, and multiple counts of theft. Criminal Information, 1/25/21. On April 27, 2021, the trial court entered an order stating: "[Appellant's] last day to enter into a negotiated plea agreement is June 2, 2021; jury selection is scheduled for June 9, 2021." Order, 4/27/21. On May 26, 2021, the trial court scheduled a plea hearing for June 2, 2021.
On June 2, 2021, Appellant completed a written guilty plea colloquy and entered an open guilty plea to [robbery, burglary, conspiracy to commit robbery, conspiracy to commit burglary, and six counts of theft; the Commonwealth nolle prossed the aggravated assault charge.] The trial court thereafter sentenced Appellant to an aggregate 18-50 years in prison. Appellant filed a post-
sentence motion seeking to withdraw his guilty plea and for modification of sentence. The trial court denied Appellant's request to withdraw his guilty plea, but corrected the sentence to properly reflect that Appellant's conspiracy convictions were for robbery and burglary (not two burglaries). See Order, 7/1/21, at 1-2 (unnumbered). The trial court otherwise denied relief. See id. …Commonwealth v. Penhollow, No. 906 WDA 2021, unpublished memorandum at 1-4 (Pa.Super. filed Oct. 17, 2022). This Court affirmed Appellant's judgment of sentence on October 17, 2022. See id. Appellant did not file a petition for allowance of appeal with the Pennsylvania Supreme Court.
Later, the parties stipulated to amending the criminal information to include a charge of conspiracy to commit robbery; the court approved the amendment to the criminal information.
On January 6, 2023, Appellant timely filed a pro se PCRA petition. The court subsequently appointed PCRA counsel, who filed an amended PCRA petition on May 3, 2023. The court held a PCRA hearing on August 7, 2023. On September 7, 2023, the court denied PCRA relief. Appellant filed a timely notice of appeal on September 28, 2023. On September 29, 2023, the court ordered Appellant to file a concise statement of errors complained of on appeal per Pa.R.A.P. 1925(b). On November 15, 2023, PCRA counsel initially filed a Pa.R.A.P. 1925(c)(4) statement of intent to file a "no-merit" brief on appeal.
On January 29, 2024, PCRA counsel filed an application for relief in this Court seeking to file an amended Rule 1925(b) statement, contending that counsel had discovered a non-frivolous issue concerning plea counsel's ineffectiveness. Appellant also sought an extension of time to file an appellate brief. On February 9, 2024, this Court denied Appellant's request to amend the concise statement without prejudice to Appellant's right to seek such relief in the PCRA court. This Court granted Appellant's request for an extension of time to file an appellate brief until April 22, 2024.
On February 16, 2024, Appellant filed a request in the PCRA court seeking to amend the Rule 1925(b) statement nunc pro tunc, which the court granted. Appellant filed an amended Rule 1925(b) statement on February 22, 2024.
Appellant raised the following issue in this statement:
Whether the PCRA [c]ourt erred by holding plea counsel was not ineffective by finding Appellant's plea was knowing, voluntary and intelligent, and without prejudice when Appellant was not fully informed of the nature of the charges, of the evidence and circumstances of the case against him and was not provided with sufficient time to know and understand the permissible enhancements and ranges of sentences.(Amended Rule 1925(b) Statement, filed 2/22/24, at 1).
On March 21, 2024, Appellant filed a request to supplement the record, alleging that while drafting the appellate brief, counsel discovered the need for additional evidence relevant to whether Appellant entered a knowing and voluntary plea. Specifically, Appellant sought to supplement the record by presenting additional testimony concerning whether plea counsel had informed Appellant about the possibility of receiving consecutive sentences prior to the entry of his plea; and, to play on-the-record the court's pre-plea video which Appellant had watched just prior to pleading guilty. The Commonwealth did not oppose the motion, and the PCRA court granted Appellant's request to supplement the record. Thereafter, Appellant filed another application for relief in this Court seeking an extension of time to file his appellate brief based on the PCRA court's grant of relief. This Court granted Appellant's request, extending Appellant's time to file an appellate brief until June 6, 2024.
The PCRA court held a supplemental hearing on April 1, 2024. On April 3, 2024, counsel filed an addendum to the amended Rule 1925(b) statement.On April 29, 2024, the PCRA court entered an order granting "the filing of the Addendum as a nunc pro tunc amendment of the 1925(b) Concise Statement of Matters Complained [o]f on Appeal and the Amended Concise Statement of Matters Complained [o]f on Appeal, previously filed by Appellant's Counsel." (Order, 4/29/24, at 1).
The addendum raised the following issue:
Whether the PCRA [c]ourt erred by holding plea counsel was not ineffective when testimony and evidence shows that [Appellant] was not informed sentences to multiple charges could be handed down to be served consecutively thereby making his pleas involuntary, not intelligent and unknowing when plea counsel 1) did not so inform [Appellant] prior to the plea hearing; 2) did not realize and object during the plea hearing when the Plea Court did not so inform [Appellant]; and 3) did not so inform [Appellant] after plea and did not move to withdraw the pleas in Post Sentence Motion based on such issue or argue such issue on direct appeal, all of which served to prejudice [Appellant].(Addendum to Rule 1925(b) Statement, filed 4/3/24, at 1).
Appellant raises one issue for our review:
Whether the PCRA [c]ourt erred by holding plea counsel was not ineffective by finding Appellant's plea was knowing, voluntary and intelligent, and without prejudice when Appellant was not fully informed of the full nature of the charges, of the evidence and circumstances of the case against him and was not provided with sufficient time to know and understand the permissible enhancements and ranges of sentences in that plea counsel did not inform Appellant sentences to multiple charges could be consecutive, did not object during the plea hearing when the [c]ourt did not so inform Appellant, and counsel did not inform Appellant after plea and did not move to withdraw the plea in Post Sentence Motion or argue such issue on direct appeal.(Appellant's Brief at 4).
Notwithstanding the single issue raised in Appellant's statement of questions presented, Appellant presents his argument in two parts in violation of our Rules of Appellate Procedure. See Pa.R.A.P. 2119(a) (stating argument shall be divided into as many parts as there are questions to be argued). Thus, we will address Appellant's issue in two parts.
"Our standard of review of [an] order granting or denying relief under the PCRA calls upon us to determine whether the determination of the PCRA court is supported by the evidence of record and is free of legal error." Commonwealth v. Parker, 249 A.3d 590, 594 (Pa.Super. 2021) (quoting Commonwealth v. Barndt, 74 A.3d 185, 191-92 (Pa.Super. 2013)). "The PCRA court's factual findings are binding if the record supports them, and we review the court's legal conclusions de novo." Commonwealth v. Prater, 256 A.3d 1274, 1282 (Pa.Super. 2021), appeal denied, __Pa.__ , 268 A.3d 386 (2021). Further, where the PCRA court makes credibility determinations, we are bound by them if they are supported by the record. Commonwealth v. Mojica, 242 A.3d 949 (Pa.Super. 2020), appeal denied, 666 Pa. 290, 252 A.3d 595 (2021).
In the first section of Appellant's argument, he argues that plea counsel did not inform him of the possibility that the court could impose consecutive sentences. Appellant asserts that he watched the Jefferson County Guilty Plea Video, which also did not inform him about the possibility of consecutive sentences. Likewise, Appellant contends the court did not inform him about the possibility of consecutive sentences during the plea colloquy. Appellant claims that plea counsel failed to object to the court's failure to inform Appellant about the possibility of consecutive sentences. Appellant emphasizes that he is from New York, had never been arrested in Pennsylvania before, and was unaware of how Pennsylvania law worked.
Appellant maintains that plea counsel merely told Appellant that "15" was a possible length of sentence, but plea counsel did not clarify whether that could be a minimum or maximum sentence. Appellant highlights that plea counsel testified that he could not recall whether he had discussed the possibility of consecutive sentences with Appellant. Appellant avers that plea counsel admitted at the PCRA hearing that the written plea colloquy does not address the potential for consecutive sentences. Appellant stresses that although counsel filed a post-sentence motion to withdraw the plea, counsel did not allege the court's failure to inform Appellant about the possibility of consecutive sentences as a ground for relief. Appellant suggests that "once it is determined the plea colloquy did not inform [Appellant] of the maximum punishment that might be imposed counsel is considered per se ineffective and the [traditional three-prong ineffectiveness test] no longer applies." (Appellant's Brief at 19). Appellant concludes plea counsel was ineffective on these grounds, and this Court must grant relief. We disagree. "Counsel is presumed to have rendered effective assistance." Commonwealth v. Hopkins, 231 A.3d 855, 871 (Pa.Super. 2020), appeal denied, 663 Pa. 418, 242 A.3d 908 (2020).
Although Appellant did not raise this issue in his pro se PCRA petition or counseled amended PCRA petition, Appellant raised and developed this claim at the supplemental PCRA hearing and in his addendum to the Rule 1925(b) statement, which the PCRA court accepted nunc pro tunc. Despite the procedural oddity in that Appellant did not raise this claim until after the PCRA court had already denied relief and the matter was pending on appeal, as this issue has been fully developed in the PCRA court and the court addressed it in a supplemental opinion, we will consider the merits of this claim.
[T]o establish a claim of ineffective assistance of counsel, a defendant must show, by a preponderance of the evidence, ineffective assistance of counsel which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place. The burden is on the defendant to prove all three of the following prongs: (1) the underlying claim is of arguable merit; (2) that counsel had no reasonable strategic basis for his or her action or inaction; and (3) but for the errors and omissions of counsel, there is a reasonable probability that the outcome of the proceedings would have been different.Commonwealth v. Sandusky, 203 A.3d 1033, 1043 (Pa.Super. 2019), appeal denied, 654 Pa. 568, 216 A.3d 1029 (2019) (internal citations and quotation marks omitted). The failure to satisfy any prong of the test for ineffectiveness will cause the claim to fail. Commonwealth v. Chmiel, 612 Pa. 333, 30 A.3d 1111 (2011).
This Court has explained:
In the context of a plea, a claim of ineffectiveness may provide relief only if the alleged ineffectiveness caused an involuntary or unknowing plea. A defendant is bound by the statements which he makes during his plea colloquy. As such, a defendant may not assert grounds for withdrawing the plea that contradict statements made when he entered the plea.Commonwealth v. Orlando, 156 A.3d 1274, 1281 (Pa.Super. 2017) (internal citations and quotation marks omitted). Further, in determining "a defendant's actual knowledge of the implications and rights associated with a … plea, a court is free to consider the totality of the circumstances surrounding the plea." Commonwealth v. Allen, 557 Pa. 135, 146, 732 A.2d 582, 588-89 (1999). The trial court may consider a wide array of relevant evidence under this standard including, but not limited to, transcripts from other proceedings, off-the-record communications with counsel, and written plea agreements. Id. at 147, 732 A.2d at 589.
Instantly, the PCRA court addressed Appellant's claim as follows:
[Appellant] has never filed anything [prior to the supplemental PCRA hearing] indicating he did not know sentences could run consecutive. That is because he was informed by his attorney the sentences could be run consecutive.
Appellant has, consistently, alleged that he and [plea counsel] "talked" about a sentence of 15 years. In other filings and hearings, Appellant has indicated he did not know whether this sentence was minimum or maximum…. In the two-page plea colloquy filed June 2, 2021[,] Appellant never said that he did not understand that in Pennsylvania, the maximum sentence, at a minimum has to be at least double the minimum sentence. In the ten counts he pled to, not one count has a 15-year maximum. The [c]ourt points to page two of the plea colloquy. In spite of [PCRA counsel] and Appellant indicating that Appellant did not believe the sentences could run consecutive[,] this page regarding the theft counts, lists the maximum sentence as ten each, times six, equals 60. It shows the multiplication on the colloquy in basic grade school math formula. Then, where the standard range for theft is listed as 27 to 33 months, there it also lists, times six, and correctly shows 162 to 198 months, consecutive. Accordingly, [Appellant] acknowledged by his signature and testimony that the sentences, just for the six counts of theft, had a standard range of a minimum of 13½ to 16½ years, in state prison, up to a maximum of 60 years in state prison if they were run consecutive.
Next, the totality of [plea counsel's] testimony clearly indicates he went over the presentence and discussed the same with his client. The presentence investigation report recommends a sentence of no less than 17½ to more than 35 years in a state correctional institution. Clearly, this is an issue wherein Appellant should have raised a question or objection if he did not understand. All he did was make statements about why he should be sentenced lightly. This was explained to him by this [c]ourt on Page 26 of his sentencing transcript, dated June 16, 2021, lines 5 through 8, "and I will acknowledge that's six months longer on the minimum and fifteen years longer on the maximum than the
presentence recommends." On Page 27, lines 7 to 8, this [c]ourt asked [Appellant] if he understood. On line 9, he indicated "Yes, sir. I do." He later acknowledged understanding his post-sentence appeal rights. For three years, Appellant has never raised any issue with the consecutive sentencing; and this is consistent with all of his actions up through and until his supplementation of the record and testimony April 1st, that he understood. Further, having been to a live hearing and allowing for the amendment of his 1925(b) Statement, this [c]ourt believes he informed [PCRA counsel] that he did not want a trial. If Appellant informed [PCRA counsel] then [PCRA counsel] would have asked at the actual PCRA hearing in August, 2023. Further, Appellant's answer on April 1, 2023, Page 6, Lines 6 and 7, that he would have [went] to trial was not responsive to the question asked by [PCRA counsel]. …
It should also be noted that on sentencing on June 16, 2021, [plea counsel] indicated, on Page 3, line 1 through 4 "I would ask the [c]ourt to consider something less than what's being recommended. Perhaps something like a ten to fifteen-year range minimum." This statement by [plea counsel] occurred within minutes of his last private consultation with [Appellant] and after his and Appellant's review of the presentence investigation report. Had [plea counsel] been talking fifteen-year maximum, he would have argued that they were looking for somewhere between a 2½ and 7½-year sentence to achieve that fifteen-year sentence as a maximum. Counsel did not[,] and to argue that in this case, and to do so with [Appellant's] guidelines and the charges would have been ludicrous.
At the hearing [on] April 1, 2024, [plea counsel] indicated he could not remember about the fifteen-year sentence or where it came from, but indicates he does remember talking about 15 years, Pages 30 through 32. On page 32, this [c]ourt questioned [plea counsel] and on line 16 and 17 indicated, "Well, it's 15 to 30. You weren't that far off." … It is clear from what [plea counsel] presented, at the time of sentence on June 16, 2021, his discussion was a fifteen-year minimum to a thirty-year maximum. As this [c]ourt indicated on April 1, 2024, that is not that far off from the final sentence and a fairly accurate, but yet non-binding guess by defense counsel.
This [c]ourt will, finally, note, that in this case, all of the sentences were either in the mitigated range or a departure or below the guidelines, based on [Appellant's] prior record score of 5. That is the reason why [Appellant] and counsel elected not to file a motion to withdraw his plea. It is also the reason this [c]ourt has, in previous Opinions, found [plea] counsel to be credible in his assertions that this was and is not a trial case. Simply put, with a completely mitigated sentence of almost the exact amount [plea] counsel predicated and argued to be imposed there was no reason to ask for plea withdrawal [on this ground].
There was no reason for plea withdrawal. [A]ppellant was not a victim of miscarriage of justice and, as such, the case should be affirmed. … [Appellant] was not prejudiced by the fact he entered a plea of guilty, which [plea counsel] conceded their strategy was a guilty plea; and, as such, with no miscarriage of justice and no demonstration that [Appellant] entered the plea, unknowingly[,] the Superior Court should affirm the sentence and deny the appeal.(PCRA Court Opinion, filed 4/24/24, at unnumbered pp. 3-4) (emphasis in original).
Although Appellant argues that anything detailed in the pre-sentence investigation report or subsequent to its filing is irrelevant to whether Appellant was aware of the potential for consecutive sentences when he entered his plea, we agree with the PCRA court that the discussions at sentencing provided context for what Appellant knew when he entered the plea.
At the outset, we reject Appellant's claim that plea counsel's alleged failure to inform Appellant about the possibility of consecutive sentences constitutes per se ineffectiveness, in which Appellant would not need to prove prejudice under the traditional three-prong ineffectiveness test. See generally Commonwealth v. Reaves, 592 Pa. 134, 923 A.2d 1119 (2007) (explaining that in some instances, prejudice may be presumed to arise from counsel's deficient conduct; where there has been complete denial of counsel or where circumstances are such that any competent attorney would be unable to provide effective assistance, defendant need not demonstrate that he was prejudiced by counsel's actions; in these scenarios, counsel is deemed per se ineffective; defining feature in these types of cases is that acts or omissions of counsel were type that are virtually certain to undermine confidence that defendant received fair trial or that outcome of proceedings is reliable).
In support of this assertion, Appellant cites Commonwealth v. Jones, 640 A.2d 1330 (Pa.Super. 1994). (See Appellant's Brief at 19). In Jones, this Court considered the appellant's claim that his guilty plea was invalid where, inter alia, he was not aware that his sentences could be imposed consecutively rather than concurrently. In analyzing the appellant's claim, this Court cited the three-prong ineffectiveness test. See Jones, supra at 1333. This Court further held that plea counsel was ineffective where counsel failed to apprise the appellant that his sentences could be imposed consecutively, there was no reasonable basis designed to effectuate the appellant's interests for failing to ensure that the colloquy was adequate nor for refusing to file a motion to withdraw the plea when specifically asked to do so by the appellant, and the appellant was prejudiced as a result. See id. at 1335. Thus, contrary to Appellant's assertion, Jones applies the traditional three-prong ineffectiveness test and does not stand for the proposition of law that counsel is per se ineffective for failing to advise a defendant about the possibility of consecutive sentences.
Further, the PCRA court reviewed the totality of the circumstances in this case to decide that Appellant was not actually unaware of the potential for consecutive sentences at the time he entered his plea. See Allen, supra. The record supports the court's factual findings in this respect. See Barndt, supra. On this record, we agree with the PCRA court that plea counsel's actions did not cause Appellant to enter an unknowing and involuntary plea. See Orlando, supra. Therefore, Appellant's first ineffectiveness claim fails.
Appellant relies on Commonwealth v. Persinger, 532 Pa. 317, 615 A.2d 1305 (1992) and its progeny to support his claim for relief. In Persinger, the Supreme Court held on direct appeal (at a time when ineffectiveness claims were reviewable on direct appeal), that plea counsel rendered ineffective assistance for failing to file a motion to withdraw the appellant's guilty plea where the appellant, though informed of the maximum sentence imposable for each charge, was not informed that the sentences could be run consecutively. Unlike Persinger and the other cases on which Appellant relies, however, the PCRA court here made factual findings that Appellant was aware of the potential for consecutive sentences when reviewing the totality of the circumstances. Thus, Persinger is not dispositive here. See also Allen, supra (explaining that one of threshold inquiries PCRA court had to make was whether appellant's testimony concerning his alleged lack of knowledge of possibility for imposition of consecutive sentences prior to entry of guilty plea was credible; PCRA court found that appellant was not credible; therefore, under totality of circumstances, PCRA relief was not warranted).
In the second section of Appellant's argument, Appellant argues that his last day to enter a plea was June 2, 2021. Appellant contends that plea counsel became aware of this when there was just seven days left for Appellant to decide to enter a plea or go to trial. Appellant claims plea counsel did not file a request for a continuance from the June 2nd date to give Appellant more time to consider his options. Appellant maintains he received only 19 pages of discovery from plea counsel, even though plea counsel had acknowledged receipt of a USB memory stick containing various video interviews. Appellant emphasizes that plea counsel could not specifically recall that during the interview of victim, she referred to co-defendant as having the knife and threatening her, and not Appellant. Appellant insists that plea counsel failed to obtain written statements from the witnesses who provided video interviews, "despite it being obvious state police provided such forms to the witnesses." (Appellant's Brief at 22). Because plea counsel did not share the video interviews with Appellant or request written interviews, Appellant avers that counsel's neglect caused Appellant to be unaware that victim had identified Appellant's co-defendant as the one with the knife.
Additionally, Appellant claims plea counsel met with him for less than one hour to discuss entering a plea. Appellant asserts that plea counsel spent ten minutes of that time completing the written plea colloquy. Appellant emphasizes that plea counsel admitted that if he "had to do it over again…[plea counsel] would've made an oral motion to continue" to give Appellant more time to think about his options. (See id. at 27). Appellant highlights plea counsel's testimony that Appellant had less than an hour to decide whether to enter the guilty plea on June 2nd. Appellant proclaims that he did not know and understand all charges in his case, the sentence possibilities, and was uninformed of facts and evidence in the case. Appellant concludes that plea counsel's actions caused him to enter an unknowing, involuntary, and unintelligent guilty plea, and this Court must grant relief. We disagree.
Instantly, the PCRA court initially evaluated Appellant's claim as follows:
[Appellant] first met with [plea counsel] on March 4, 2021, at which time he waived his preliminary hearing and received a copy of the case tracking form providing the dates he was to be present for arraignment (May 5), criminal conferences (May 29 & June 16), and jury selection (July 12). The [c]ourt altered that schedule on May 24, 2021, when it held a pretrial conference and orally advised counsel that June 2, 2021 would be [Appellant's] last day to enter a negotiated plea if he did not intend to pick a jury five days later.
[Plea counsel] knew as he sat in the pretrial conference that his client intended to plead guilty. [The] district attorney knew it, as well. The two had already met to discuss the case nineteen days earlier, and [plea counsel] had followed up with a letter indicating that [Appellant] was interested in cooperating against his co-defendant [Truver] in order to secure a more favorable plea deal. The attorneys had a second, impromptu conference on May 24, 2021 when this jurist briefly left the room to give them an opportunity to further discuss this case between themselves. Nevertheless, the district attorney did not make an offer that day.
[Plea counsel] also knew when he arrived for the pretrial conference that the Commonwealth had a relatively strong case against [Appellant]. He had already reviewed the bulk of discovery and shared with his client the substantive portions of the relevant police reports. That included the affidavit of probable cause [which detailed that Montini had identified Appellant's co-defendant as the actor who held her down, and Appellant as the other actor who was yelling, "just do it, just stab her. Spill her blood more."]
Whether or not he heard her say it in her taped interview or read it in a written statement he referenced multiple times but did not produce, therefore, [Appellant] knew well before his last day to enter a negotiated plea deal that Montini had identified Truver as the one who physically restrained her and held a knife to her throat. That
information did not induce him to reject the district attorney's plea offer in 2021, and it is wholly speculative to suppose he would have changed course had it also come to his attention that a second victim, George Slider, said that Montini suffered from mental health issues of an undisclosed nature. Though [Appellant] pleads that counsel's ineffectiveness denied him the opportunity "to become fully aware of all circumstances of the case against him," … he fails to identify any other significant information purportedly withheld and, consequently, how knowing it may have affected his decision to plead guilty.
Whether [plea counsel] would have proceeded differently is not something that requires speculation, though. He heard PCRA counsel represent the aforementioned disclosures about Montini and confidently stated that neither piece of information would have affected his decision not to file pretrial motions.1 He said, in fact, that nothing he learned at the PCRA hearing would have altered his strategy in that regard.
1 [Plea counsel] had a poor recollection of this case overall. "I don't recall," "I think that," "I would have," and "probably" punctuated much of his testimony. The [c]ourt found him to be credible nonetheless. A seasoned criminal practitioner, he could certainly recognize whether previously unknown facts would have altered the way he represented [Appellant] and was clearly not just trying to make himself look good. Like [Appellant], moreover, [plea counsel] would have read Montini's statements in the affidavit of probable cause, and though he apparently did not remember its contents more than two years later, he would have known in 2021 what she said about Truver and did not deem it to be fodder for pretrial motions-a fact that bolstered his credibility in this matter.
Speaking to events as they transpired on June 2, 2021, however, [plea counsel] said that if he could revisit that day, he would do one of two things: request a continuance or ask for more time that day to discuss matters with [Appellant]. Truver's decision to plead guilty "changed things a lot," he reflected, because it denied him the opportunity to testify against Truver. In terms of defense strategy, he did not
specify how it changed things, though; he did not indicate what he might have done differently with more time to ponder the ramifications of Truver pleading, and nor did he postulate that it would have changed [Appellant's] decision to accept the Commonwealth's offer.
Given carte blanche to testify on his own behalf, [Appellant] did not establish his claims any more effectively. He acknowledged receipt of the written discovery materials [plea counsel] provided and, as noted above, failed to identify any material information his attorney withheld that would have caused him to reject the plea deal of record.Meanwhile, most of what he asserted about counsel's representation was simply preposterous. He averred, for instance, that [plea counsel] spent only ten minutes with him on June 2, 2021; that the only paper the attorney showed him was the district attorney's email-a statement belied by his signature on the written plea colloquy; that he did not explain the added charges; and that this experienced criminal practitioner neglected to discuss minimum and maximum sentences while telling him that he would be receiving a fifteen-year sentence.
Something [plea counsel] neglected to do, however, was remind the district attorney at the plea hearing that part of its offer included a promise to "advise the [c]ourt that [Appellant] expressed his willingness to cooperate in the prosecution against Truver." It was, he testified, an oversight-one he proffered to support the motion to modify sentence he included in post-trial motions. Counsel's oversight, however, does not entitle [Appellant] to PCRA relief. The Commonwealth did not promise to go on the record about [Appellant's] willingness to cooperate…; it only promised to advise the [c]ourt, which it did. … Accordingly, the premise that [plea counsel's] oversight deprived the [c]ourt of information that would have equated to a lesser sentence lacks merit.
* * *
[Appellant] was the second and last witness to testify at the [August 7, 2023] PCRA hearing but was present by video for its duration. He thus heard [plea counsel's] many questions and factual representations. He then took an oath and talked about the many things his attorney purportedly did not discuss with him, including pre-trial motions, the evidence, and how that evidence could have been used at trial. What he did not say, though, was that he would have elected to go to trial had he been better informed. What he did not say, moreover, was that he would have rejected the Commonwealth's only offer had he not been forced to make what he claimed was a rushed and ill-informed decision. Rather, what he told the [c]ourt on August 7, 2023 was that [plea counsel's] failures denied him sufficient time to understand everything, including what it meant to enter an open plea. The necessary implication, rather than establishing a likelihood that the outcome of the proceedings would have been different, was that he may have done exactly what he did even had he known on June 2, 2021 what he knows today. Accordingly, he failed to prove by a preponderance of the evidence that he sustained prejudice as a result of anything [plea counsel] did or failed to do. He thus failed to prove that any of the issues he raised in his PCRA petition, together with its amendments, entitles him to relief.(PCRA Court Opinion, 9/7/23, at 2-5) (emphasis in original) (some citations and footnotes omitted).
We clarify that there was never a negotiated plea deal concerning sentencing in this case.
Following the supplemental PCRA hearing, the court acknowledged:
Appellant, for his part, from June 2, 2021, through April 1, 2024, never told anyone that this case was going to trial until he uttered those words on Page 6 of the Supplemental Testimony Hearing. Those words have absolutely no credibility. Despite [plea counsel's] vague testimony (especially vague, for an intelligent, well-seasoned and well-regarded attorney); [plea counsel] has indicated at every point, that this case was not a trial case. Further, he testified that [Appellant's] main issue was to point out the cooperation he was willing to offer against his co-defendant, Blake Truver, to get a "lighter sentence." It strains common sense that when a competent attorney (who is sought after
as a paid attorney) indicates the case was a plea case, takes a direct appeal, files documentation and is challenged by Appellant though a Grazier Hearing; that after almost three years; neither counsel [nor] Appellant ever file anything saying he was going to trial, or requested a trial. Suddenly on April 1, 2024, Appellant, for the first time, says "I want to go to trial." That is just not credible. …(PCRA Court Opinion, 4/24/24, at unnumbered pp. 2-3).
See Commonwealth v. Grazier, 552 Pa. 9, 713 A.2d 81 (1998). By way of background, Appellant had filed a pro se petition on December 6, 2021, requesting a Grazier hearing and claiming that plea counsel did not file a Rule 1925(b) statement despite the court's order to do so, prior to Appellant's direct appeal. Plea counsel ultimately filed the Rule 1925(b) statement, albeit belatedly, as counsel had been waiting for transcripts in the case. The court subsequently granted counsel's request to accept the Rule 1925(b) statement nunc pro tunc. Following the Grazier hearing, the court entered an order on March 11, 2022, stating that Appellant wanted to proceed with plea counsel for the direct appeal.
We agree with the PCRA court that Appellant has failed to establish prejudice. See Barndt, supra (explaining general rule that to establish prejudice, defendant must show there is reasonable probability that, but for counsel's errors, he would not have pled guilty and would have insisted on going to trial). As the PCRA court noted, Appellant did not make any assertion until the supplemental PCRA hearing that he would have gone to trial had he known then what he knows now. (See N.T. PCRA Hearing, 4/1/24, at 6). The PCRA court expressly rejected this testimony as incredible. (See PCRA Court Opinion, 4/24/24, at unnumbered p. 3). The record supports the court's credibility determination, and we are bound by it. See Mojica, supra. Therefore, Appellant's second ineffectiveness claim fails. Accordingly, we affirm the order denying PCRA relief.
Order affirmed.
Judgment Entered.