Opinion
Civil Action 23-71E
02-12-2024
RICHARD GROSSO, Petitioner, v. SUPERINTENDENT MICHAEL J. ZAKEN; THE DISTRICT ATTORNEY OF ERIE COUNTY, and THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA, Respondents.
Re: ECF No. 11
MAUREEN P. KELLY, MAGISTRATE JUDGE
REPORT AND RECOMMENDATION
SUSAN PARADISE BAXTER, DISTRICT JUDGE
I. RECOMMENDATION
For the reasons that follow, it is respectfully recommended that the Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody (the “Amended Petition”), ECF No. 11, be denied. It is further recommended that a certificate of appealability be denied.
II. REPORT
Richard Grosso (“Petitioner”) is a state prisoner currently incarcerated at the State Correctional Institution at Greene (“SCI-Greene”) in Waynesburg, Pennsylvania.
Petitioner initiated this action by submitting his initial Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody (the “Initial Petition”), which was received by this Court on March 16, 2023. ECF No. 1. The Initial Petition was accompanied by a supporting Memorandum of Law. ECF No. 1 -1. Petitioner paid the filing fee on March 21, 2023. ECF No. 3. The Initial Petition and Memorandum of Law were formally filed the same day. ECF Nos. 4 and 5.
On March 30, 2023, pursuant to this Court's Order, ECF No. 2, Petitioner submitted an Amended Petition on this Court's approved form. ECF No. 11. The Amended Petition explicitly incorporates his Memorandum of Law. Id. at 8.
Despite acknowledging this incorporation, and despite the fact that it was available on the public docket, Respondents did not see fit to respond to the Memorandum of Law in their Answer because it was not attached to the Amended Petition was it was served on them by the United States Marshal Service. ECF No. 19 at 6-7.
In the Amended Petition, Petitioner attacks convictions at Docket No. CP-25-CR-1568-2019 in the Court of Common Pleas of Erie County, Pennsylvania, for Escape, in violation of 18 Pa. C.S.A. § 5121, and Disorderly Conduct, in violation of 18 Pa. C.S.A. § 5503. ECF No. 11 at 1. See also Docket, Com, v. Grosso, No. CP-25-CR-1568-2019 (CCP Erie County) (available at https://ujsportal.pacourts.us/Report/CpDocketSheet7docketNumber-CP-25-CR-0001568-2019&dnh=Bt8eRfm%2BeVDm2koWWb4pkw%3D%3D (last visited Feb. 12, 2024)).
A. Factual History and Procedural Background
The following is a recitation of the relevant factual and procedural history by the Pennsylvania Superior Court in its opinion relative to Petitioner's appeal from the denial of post-conviction relief pursuant to the Pennsylvania Post Conviction Relief Act (“PCRA”), 42 Pa. C.S.A. § 9541 et seq.
On March 15, 2019, Appellant attempted to escape from SCI-Albion by scaling fences and moving between prison yards before guards apprehended him in an unauthorized area of the prison. On April 8, 2019, the Commonwealth filed a Criminal Complaint charging him with Criminal Attempt - Escape. Public defender Alan Natalie, Esq., entered his appearance on behalf of Appellant prior to the June 4, 2019 preliminary hearing. On July 24, 2019, the Commonwealth filed a Criminal Information charging Appellant with Escape, but not Attempted Escape, stating that Appellant “did attempt to escape from Albion State Correctional Institute ...; thereby [Appellant] did commit the crime of Escape[.]” The complaint and the information additionally charged Appellant with Disorderly Conduct because his
conduct forced the prison “to go into lock down causing disruption to the normal routine of the facility.”
On February 28, 2020, counsel filed a motion to withdraw, citing a breakdown in the attorney-client relationship based upon Appellant's numerous pro se filings, which included allegations of counsel ineffectiveness. The trial court granted counsel's request to withdraw on March 2, 2020, and Appellant waived his right to counsel on March 5, 2020.
On March 11, 2020, the court held a plea hearing at which the Assistant District Attorney (ADA) reviewed Appellant's waiver of his right to counsel and clarified, among other things, that “if any errors or rule violations occur and you don't object to them at the right time, you'll lose your right to object permanently.” Appellant reiterated that he voluntarily waived his right to counsel. The ADA then described the charges as set forth in the Criminal Information, stating that as a result of his “attempt to escape,” he committed “the crime of [E]scape.”
During the plea colloquy, the trial court asked Appellant if he understood the charges. When Appellant indicated that he was being charged with Attempted Escape, the court corrected him explaining that Escape “is the official term[.]” At the conclusion of the colloquy, the court accepted Appellant's plea to Escape and Disorderly Conduct, finding it “knowing and voluntary.”
Subsequently, the trial court reappointed Attorney Natalie upon Appellant's request for sentencing counsel. The court sentenced Appellant to 27 to 54 months of incarceration for Escape and one year of probation on the Disorderly Conduct charge, to be served consecutively. The court stated that the sentence imposed for Escape was “at the lowest end of the standard range.”
Attorney Natalie filed a notice of appeal in this Court on behalf of Appellant and a “Statement of Intent to File an Anders/McClendon Brief, pursuant to Pa.R.[A.]P. 1925(c)(4), in Lieu of a Statement of Matters Complained of on Appeal” (Anders Statement). Counsel indicated that Appellant maintained that he should have been prosecuted for Attempted Escape rather than Escape because he “did not achieve full removal” from the prison. Counsel additionally acknowledged that Appellant sought to challenge the consecutive aspect of his probationary sentence for Disorderly Conduct.
In its Pa.R.A.P. 1925(a) Opinion, the trial court opined that Appellant's allegations of error related to his guilty plea were “belied
by the record,” given that Appellant entered his plea “knowingly, voluntarily, and intelligently.” The trial court additionally rejected Appellant's challenge to the consecutive nature of his Disorderly Conduct sentence, which the court deemed to be within the discretion of the court. Thereafter, Appellant filed a document pro se seeking to discontinue his appeal, and this Court issued an order to that effect on October 7, 2020.
Within weeks, Appellant filed a pro se PCRA petition on October 19, 2020. Following his appointment as PCRA counsel, Attorney William Hathaway, Esq., filed a supplemental PCRA petition setting forth Appellant's challenge to the “integrity of the plea proceeding” due to the confusion regarding the charges. The Supplemental PCRA Petition additionally alleged that the ADA committed prosecutorial misconduct in allowing the charge of Escape to proceed when the facts supported only Attempted Escape and that Attorney Natalie provided ineffective assistance of counsel by failing to file a petition to withdraw Appellant's plea prior to sentencing. It also asserted a claim of ineffective assistance of counsel based upon counsel's alleged failure to challenge the discretionary aspects of Appellant's sentence for Disorderly Conduct.
In response to Appellant's supplemental petition, the Commonwealth conceded the arguable merit of Appellant s ineffectiveness claim related to his plea given Appellant's “facially valid concern for confusion and misunderstanding,” regarding the “precise crime to which he entered a guilty plea.” The Commonwealth emphasized, however, that Appellant could not demonstrate ineffective assistance of counsel because Appellant represented himself at the plea hearing. The Commonwealth further noted that Attorney Natalie was “not ineffective in failing to go against [Appellant's] own willful acts or failing to override [Appellant's] own missteps at his guilty plea,” and rejected claims of prejudice resulting from the plea given that Attempted Escape and Escape are both felonies of the third degree that resulted in the same offense gravity score for sentencing purposes. It additionally countered Appellant's challenge to his sentence for Disorderly Conduct by asserting that the sentence was within the discretion of the trial court.
Following an evidentiary hearing, the PCRA Court issued an opinion in support of denying PCRA relief on December 20, 2021, and Appellant filed a notice of appeal on January 9, 2022. The record does not indicate that the PCRA Court requested Appellant to file a Pa.R.A.P. 1925(b) Statement. On January 14, 2022, the PCRA Court entered an order indicating that it would not file an additional opinion, relying instead on its prior orders and opinions.Com, v. Grosso, 287 A.3d 860 (Table), No. 69 WDA 2022, 2022 WL 7297683, at * 1-3 (Pa. Super. Ct. Oct 13, 2022) (original footnotes omitted, additional footnote added), appeal denied, 293 A.3d 564 (Pa. 2023). See also Docket, Grosso, No. 69 WDA 2022 (available at https://ujsportal.pacourts.us/Report/PacDocketSheet?docketNumber=69%20WDA%202022&dn h=FxCiEZ3BaXqB9j 1 WPEMFzQ%3D%3D (last visited Feb. 12, 2024)).
There is no indication on the record that Petitioner sought leave to appeal from the Pennsylvania Superior Court, or filed a petition for writ of certiorari with the United States Supreme Court with respect to his direct appeal.
In his PCRA appeal, Petitioner raised the following issues:
A. Whether the appellant's entry of a guilty plea to escape was invalid in that the charging documents and all relevant notice afforded to the appellant referenced that he was charged with attempted escape?
B. Whether the guilty plea was rendered void due to the combined prosecutorial misconduct and ineffective assistance of counsel in permitting the appellant to enter a guilty plea to a criminal offense that he was not charged with and then failing to seek to withdraw that ill-gotten plea after reassuming legal representation?
C. Whether the appellant was afforded ineffective assistance of counsel in that the conduct of the appellant factually and legally supported an attempted escape or arguably a mere administrative violation of the institution given that he was detained within the confines of the institution in an unauthorized area without any substantial step undertaken toward escaping?
D. Whether the appellant was afforded ineffective assistance of counsel in that defense counsel failed to preserve and present a sentencing claim on his behalf that the conviction for disorderly conduct should have merged for purposes of sentencing?Grosso, 2022 WL 729768, at *3 (internal citation omitted). The Superior Court found all of these issues to have been waived, either due to Petitioner's pro se withdrawal of his direct appeal, or due to his failure to adequately brief the issue. Id. at *5-6. See also Pa. R.A.P. 2119(a) (requiring that each point in an argument be “followed by such discussion and citation of authorities as are deemed pertinent”). In a footnote, the Superior Court additionally indicated that the ineffective assistance of counsel portions of Issue B lacked merit, because Petitioner waived his right to counsel during his guilty plea, and because Petitioner had failed to show prejudice because the crimes of Attempted Escape and Escape both would subject him to the same offense gravity score at sentencing under state law. Id. at *5 n.21.
Petitioner timely sought leave to appeal from the Pennsylvania Supreme Court on October 27, 2022; however, allocatur was denied on March 2, 2023. Docket, Com. v. Grosso, No. 264 WAL 2022 (available at https://ujsportal.pacourts.us/Report/PacDocketSheet7docketNumber=264%20 WAL%202022&dnh=luOTritWLYfU 1 gZY3HymyQ%3D%3D (last visited Feb. 12, 2024)).
B. The Amended Federal Habeas Petition
Petitioner initiated this federal habeas action March 16, 2023, as stated above. In the pending Amended Petition, ECF No. 11, Petitioner asserts the following grounds for relief.
Ground One: Petitioner was wrongly charged with escape when he never broke custody from his jailers.
(a) Supporting facts []: Petitioner should have been charged, if at all, with “Criminal Attempt” 18 Pa C.S. § 901, not Escape 18 Pa. C.S. § 5121, since he never left the jail. When Petitioner agreed to plead guilty, the Court and prosecutor lead Petitioner into believing Petitioner was pleading guilty to criminal attempt it wasn't until he received a new “status sheet” at SCI-Greene that he learned he was convicted of escape. Trial Counsel should have had the escape charge dismissed and/or objected to said Escape charge during the sentencing phase. See Petitioner's Memorandum of Law.Id. at 5.
Ground Two: (a) Whether Petitioner should have been charged with escape, but instead was led to believe he was pleading guilty to criminal attempt (both offenses contain 2 different statutes);
(b) Whether escape and disorderly conduct offenses & sentences should have merged for sentencing purposes since the elements of each offense were directly related to each other;
(c) Whether Mr Natalie was ineffective in his assistance by failing to raise any timely objections to the escape charge since Petitioner never escaped, nor objected at the sentencing phase to the non-merger of consecutive sentences imposed and intending to file an Anders-McClendon brief on direct appeal.Id. at 7.
At “Ground Three,” Petitioner explicitly re-raises his prior grounds for relief, but does not assert any additional basis for relief. Id. at 9.
Respondents answered the Amended Petition on May 5, 2023. ECF No. 19. Petitioner submitted a Traverse on July 11, 2023. ECF No. 30.
The Amended Petition is ripe for consideration.
C. Procedural Issues
Before this Court addresses the merits of Petitioner's federal habeas claims, it will address whether the Amended Petition fulfills the applicable procedural requirements, as set forth in the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).
1. The AEDPA statute of limitations
The first consideration in reviewing a federal habeas corpus petition is whether the petition was timely filed within the applicable statute of limitations. In 1996, Congress enacted the AEDPA, which generally established a strict one-year statute of limitations for the filing habeas petitions pursuant to 28 U.S.C. § 2254. The applicable portion of the statute is as follows:
(d)(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the
judgment of a State court. The limitation period shall run from the latest of.
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.
(2) The time during which a properly filed application for State postconviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.
The United States Court of Appeals for the Third Circuit has held that the statute of limitations set out in Section 2244(d) must be applied on a claim-by-claim basis. Fielder v. Varner, 379 F.3d 113, 122 (3d Cir. 2004), cert, denied sub nom. Fielder v. Lavan, 543 U.S. 1067 (2005). Thus, in analyzing whether a petition for writ habeas corpus has been timely filed under the one-year limitations period, a federal court must undertake a three-part inquiry. First, the court must determine the “trigger” date for the individual claims raised in the petition. Typically, this is the date that the petitioner's direct review concluded and the judgment became “final” for purposes of triggering the one-year period under Section 2244(d)(1)(A). Second, the court must determine whether any “properly filed” applications for post-conviction or collateral relief were pending during the limitations period that would toll the statute pursuant to Section 2244(d)(2). Third, the court must determine whether any of the other statutory exceptions or equitable tolling should be applied on the facts presented. See, e.g., Munchinski v. Wilson, 807 F.Supp.2d 242, 263 (W.D. Pa. 2011), affd, 694 F.3d 308 (3d Cir. 2012) (citing Nara v. Frank, No 99-5, 2004 WL 825858, at *3 (W.D. Pa., Mar. 10, 2004)).
In the instant case, Respondents concede that Petitioner's claims are timely filed. ECF No. 19 at 4. A review of the record, as set forth above, supports this conclusion. Therefore, Petitioner's claims are timely.
2. Exhaustion and procedural default
The provisions of the federal habeas corpus statute at 28 U.S.C. § 2254(b) require a state prisoner to exhaust available state court remedies before seeking federal habeas corpus relief.
A federal court may be precluded from reviewing habeas claims under the procedural default doctrine.” Gray v. Netherland, 518 U.S. 152, 162 (1996); Coleman v. Thompson, 501 U.S. 722, 732 (1991); Doctor v. Walters, 96 F.3d 675, 678 (3d Cir. 1996) (abrogated on other grounds by Beard v. Kindler, 558 U.S. 53, 60-61 (2009)); Sistrunk v. Vaughn, 96 F.3d 666, 675 (3d Cir. 1996). This doctrine is applicable where, inter alia, a petitioner's claims are “deemed exhausted because of a state procedural bar[.]” Lines v. Larkin, 208 F.3d 153, 160 (3d Cir. 2000). Like the exhaustion requirement, the procedural default doctrine was developed to promote our dual judicial system and, in turn, it is based upon the “independent and adequate state law grounds doctrine, which dictates that federal courts will not review a state court decision involving a question of federal law if the state court decision is based on state law that is “independent” of the federal question and “adequate” to support the judgment. Coleman, 501 U.S. at 750. The PCRA s one-year statute of limitations has been held to be an “independent and adequate” state law ground for denying habeas relief. Whitney v. Horn, 280 F.3d 240, 251 (3d Cir. 2002). So too has the requirement under Pa. R.A.P. 2119(a) that a litigant adequately brief his claims. Ryan v. Adams, No. 19-CV-0542, 2021 WL 3272033, at *10 (W.D. Pa. June 3, 2021), report and recommendation adopted, 2021 WL 3269649 (W.D. Pa. July 30, 2021). But see Xavier v. Sup't Albion SCI, 689 F. App'x. 686, 688-90 (3d Cir. 2017) (recognizing that Pa. R.A.P. 2119 is an independent and adequate state law basis for default, but setting aside default where the petitioner substantially complied therewith.). Additionally, the PCRA's requirement under 42 Pa. C.S.A. § 9544(b) that a petitioner raise any claim “before trial, at trial, during unitary review, on appeal or in a prior state postconviction proceeding” if he is able to do so, has been held to bar federal habeas review. See, e.g., Patton v. Sup't Graterford SCI, No. 17-2142, 2017 WL 5624266, at *1 (3d Cir. Sept. 28, 2017) (denying certificate of appealability); Romero v. Stickman, 271 F.Supp.2d 644, 646 (E.D. Pa. 2003).
Despite recognizing in their Answer that the state courts found Petitioner's grounds to be waived, ECF No. 19 at 3, Respondents state that “it appears Petitioner has exhausted his state court remedies and such claims are not procedurally defaulted. Id. at 5.
This Court is not bound by Respondents' conclusion with respect to default. See, e.g,, Fortney v, Wainwright, No. 20-CV-339, 2022 WL 2790711, at *2 (W.D. Pa. July 15, 2022). The undersigned may consider Petitioner's default sua sponte pursuant to Rule 4 of the Rules Governing Section 2254 Petitions.
Of note, the Superior Court found that Petitioner's argument regarding the validity of his guilty plea and his assertion of prosecutorial misconduct were waived because they could have been raised on direct appeal - which Petitioner withdrew after his counsel filed notice of intent to submit an Anders brief. Grosso, 2022 WL 7297683, at *4-5. This encompasses Grounds One, and Two (a) of the instant Amended Petition. The Superior Court also found that Petitioner had waived his challenge to Disorderly Conduct sentence - Ground Two (b) in the Amended Petition - on the same basis. Id. at 6. It appears that the Superior Court further determined that Petitioner s remaining ineffective assistance of counsel claims regarding his counsel's failure to withdraw his guilty plea and object to his sentence for Disorderly Conduct at sentencing as waived under Pa. R.A.P. 2119(a) due to his failure to adequately brief it. Id. at *4-5.
But see Com, v. Southerland, No. 470 EDA 2023, 2023 WL 8665299, at *5 (Pa. Super. Ct Dec. 15, 2023) (objections to guilty plea must be raised before trial court during guilty plea colloquy, at sentencing, or in post-sentence motions filed within 10 days of sentencing). There is no indication from the record before this Court - including the transcript of the guilty plea colloquy dated March 11, 2020, the transcript of the sentencing hearing dated June 19, 2020, the trial court docket, and the multiple other documents in the paper record - that any such objections were made in Petitioner's state criminal case.
Rather than delving into the issue of procedural default, and out of an abundance of caution, the undersigned will assume, without deciding, that Petitioner may set aside any default, and will address the merits of each ground for relief, which this Court is authorized to do by statute. 28 U.S.C. § 2254(b)(3).
D. Application of the Merits Standard of Review
1. Standard of review
Where the state court has reviewed a federal issue presented to them and disposed of the issue on the merits, and that issue is also raised in a federal habeas petition, the AEDPA provides the applicable deferential standards by which the federal habeas court is to review the state court s disposition of that issue. See 28 U.S.C. § 2254(d) and (e). However, to the extent that a claim was fairly presented to the state courts but was not addressed on the merits, de novo review applies. Cone v. Bell, 556 U.S. 449, 472 (2009). The same review applies to a claim that resulted from a state court decision that was contrary to or an unreasonable application of United States Supreme Court precedent and/or an unreasonable determination of the facts. 28 U.S.C. § 2254(d)(1) and (2). In the instant case, the undersigned applies de novo review out of an abundance of caution, and for ease of analysis.
For the reasons stated below, even under the less deferential de novo standard, all of Petitioner's claims fail.
2. Petitioner's guilty plea was knowing and voluntary.
In Hill v. Lockhart, 474 U.S. 52, 56 (1984), the Supreme Court of the United States explained that “[t]he longstanding test for determining the validity of a guilty plea is whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant.” (internal quotations and citations omitted). In Boykin v Alabama, 395 U.S. 238 (1969), the Supreme Court recognized that:
[w]hat is at stake for an accused facing death or imprisonment demands the utmost solicitude of which courts are capable in canvassing the matter with the accused to make sure he has a full understanding of what the plea connotes and of its consequence. When the judge discharges that function, he leaves a record adequate for any review that may be later sought.Id. at 243-44. “Waivers of constitutional rights . . . must be knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences.” Brady v. United States, 397 U.S. 742, 748 (1970).
To determine whether a guilty plea represents a voluntary and intelligent choice, a reviewing court must examine the totality of the circumstances surrounding the plea. Id. at 749. To ensure that a plea is both knowing and voluntary, it cannot have been induced through misrepresentation or coercion, Id. at 750, the defendant must have notice of the nature of the charge(s) against him, Henderson v. Morgan, 426 U.S. 637, 645 (1976), the defendant must have an understanding of the law in relation to the specific facts at issue, McCarthy v. United States, 394 U.S. 459, 466 (1969), and the defendant must appreciate the consequences of the plea, he., he must understand the rights he is surrendering through his plea. IL
In Boykin, the Supreme Court identified three federal constitutional rights m particular that a criminal defendant waives as a result of pleading guilty: the right against compulsory self-incrimination under the Fifth Amendment; the right to trial by jury under the Sixth and Fourteenth Amendments; and the Sixth Amendment right to confront accusers. Boykin, 395 U.S. at 243. That said, even in Boykin and its progeny, “the Supreme Court did not specify a mandatory litany and the failure to advise a defendant of each right does not automatically invalidate the plea.” United States v. Stewart, 977 F.2d 81, 84 (3d Cir. 1992), cert, denied, 507 U.S. 979 (1993). See also Troutman v. Overmyer, No. 14-1592, 2015 WL 1808640, at *13 (E.D. Pa. Apr. 21, 2015). Moreover, “[t]he Due Process Clause does not require a factual basis supporting a guilty plea before the entry of the plea, and the failure of a state court to elicit a factual basis before accepting a guilty plea does not in itself provide a ground for habeas corpus relief under 28 U.S.C. § 2254.” Cosma v. Powell, -F.3d No. CV 21-579, 2023 WL 5731737, at *3 (D.N.J. July 20, 2023) (quoting Meyers v. Gillis, 93 F.3d 1147, 1151 (3d Cir. 1996); citing cases, internal quotation marks omitted). Instead, the voluntariness of a plea can only be determined by considering all of the relevant circumstances surrounding it. Brady, 397 U.S. at 749. It is a question of law. Marshall v. Lonberger, 459 U.S. 422, 431 (1983).
Once entered, a defendant does not have an absolute right to withdraw a guilty plea. United States v. Isaac, 141 F.3d 477, 485 (3d Cir. 1998). Rather, a plea of guilty entered by one fully aware of the direct consequences must stand unless induced by threats, misrepresentation, or improper promises. Mabry v. Johnson, 467 U.S. 504, 509 (1984). As the United States Supreme Court has further stated:
A plea of guilty and the ensuing conviction comprehend all of the factual and legal elements necessary to sustain a binding, final judgment of guilt and a lawful sentence. Accordingly, when the judgment of conviction upon a guilty plea has become final and the offender seeks to reopen the proceeding, the inquiry is ordinarily confined to whether the underlying plea was both counseled and voluntary. If the answer is in the affirmative then the conviction and the plea, as a general rule, foreclose the collateral attack.United States v. Broce, 488 U.S. 563, 569 (1989) (emphasis added). See also Lesko v. Lehman, 925 F.2d 1527, 1537 (3d Cir. 1991). Indeed, “[a] habeas petitioner challenging the voluntary nature of his or her guilty plea faces a heavy burden.” Zilich v. Reid, 36 F.3d 317, 320 (3d Cir. 1994).
Here, the record before this Court amply supports the conclusion that Petitioner's guilty plea was knowing, intelligent, and voluntary.
The vast majority of the state court record was submitted only in hard copy, and was not filed electronically on CM/ECF.
First, as the trial court and the Superior Court both recognized, Petitioner waived his right to counsel prior to pleading guilty. The written Right to Counsel Waiver form, dated March 11, 2020, and signed by Petitioner, shows check marks in the “Yes” column for the following questions, among others:
2. Do you know the nature and the elements of the charges against you?
3. Are you aware of the possible range of sentences, including fines and the maximum possible penalty that can be imposed, if you are found guilty or plead guilty?
5. Do you understand that an attorney will be more familiar with [the Rules of Criminal Procedure] than you?
6. Do you understand that there may be defenses to these charges which counsel would be aware of?
7. Do you understand that if these defenses or other rights are not raised at the right time, you will lose your right, they may be permanently lost?
8. Do you understand that if errors or rule violations occur and you don't object to them at the right time, you will lose your right to object permanently?
9. Are you voluntarily giving up your right to be represented by and attorney?
Right to Counsel Waiver, dated March 11, 2020, at 1.
Petitioner checked “No” for the following question:
10. Have you been forced of pressured in any way, or have promises been made to you, that have influenced your decision to waive your right to be represented by an attorney?Id.
Petitioner also signed a form entitled “Defendant's Statement of Understanding of Rights Prior to Guilty Plea/No Contest Plea,” dated March 11, 2020, which indicated that (a) his plea was voluntary; (b) he had received a copy of the information; (c) his attorney had reviewed the charges and elements thereof with him; (d) he understood that he (i) had a right to trial by jury, (ii) was presumed innocent; (iii) the prosecution had to prove his guilt beyond a reasonable doubt, (iv) he could participate in the selection of a jury, (v) the jury's verdict had to be unanimous, and (vi) by pleading guilty he was giving up his right to a jury trial; and (e) the only plea agreement m place was that Petitioner would plead guilty as charged. Defendant's Statement of Understanding of Rights Prior to Guilty Plea/No Contest Plea at 1. The form also indicated that Petitioner faced a maximum sentence of “$15,000/7years” at Count 1, and “$2,500/1 year” at Count 2, for a “TOTAL: $17,500/8 YEARS.” Petitioner's signature was entered just below a line stating, in all capital letters, “I HAVE SIGNED THIS PAPER ONLY AFTER FIRST READING AND REVIEWING IT.” Id. (emphasis in original).
Additionally, Petitioner was verbally colloquied regarding these rights again during his plea hearing.
[ADA] MASKERY: All right. Sir, I'm going to go over what's known as your right to counsel waiver. If you can answer yes or no as I go through this. All right.
MR. GROSSO: All right.
MR. MASKERY: First, you understand you have the right to be represented by an attorney and a right to a free attorney if you cannot afford one?
MR. GROSSO: Right.
MR. MASKERY: Is that a yes?
MR. GROSSO: Yes.
MR. MASKERY: Do you know the nature and the elements of the charges against you?
MR. GROSSO: Yes.
MR. MASKERY: Are you aware of the possible range of sentences, including fines, and the maximum possible penalty that can be imposed if you are found guilty or plead guilty?
MR. GROSSO: Yes.
MR. MASKERY: Do you understand that if you represent yourself you'll still be required to follow all of the rules of criminal procedure and evidence?
MR. GROSSO: Yes.
MR. MASKERY: Do you understand there may be defenses to these charges, which counsel would be aware of?
MR. GROSSO: Yes.
MR. MASKERY: Do you understand that if these defenses or other . rights are not raised at the right time, you'll lose your right and they may be permanently lost?
MR. GROSSO: Yes.
MR. MASKERY: Do you understand that if errors or rule violations occur and you don't object to them at the right time, you'll lose your right to object permanently?
MR. GROSSO: Yes.
MR. MASKERY: And are you voluntarily giving up your right to be represented by an attorney for your plea today?
MR. GROSSO: Yes.
MR. MASKERY: Have you been forced or pressured in any way or have promises been made to you that have influenced your decision to waive your right?
MR. GROSSO: No.
MR. MASKERY: All right. Sir, I am going to have you sign on the line marked defendant to acknowledge that.
MR. GROSSO: (Defendant complies.)
THE COURT: All right. Mr. Grosso, I think the Commonwealth is correct to go over this again. Do you have any questions for me about your fundamental right to counsel and the fact that you are knowingly and voluntarily giving up that right to proceed today?
MR. GROSSO: I'm good, judge.
Tr. of Plea Hr'g dated March 11, 2020, at 6-8.
At the guilty plea colloquy, Petitioner also was advised verbally of the maximum penalty that he faced for each charge individually, and both charges collectively, as well as the factual allegations providing the legal bases for those charges. IL at 9-11. With respect to the Escape charge, the transcript of the colloquy states:
[ADA] MASKREY: All right. Sir, I am going to go over the factual and legal basis of the charge with you as found in the criminal information. It does state at Count 1 that on or about March 15th of 2019 you did unlawfully remove yourself from official detention, or did fail to return to official detention, following temporary leave. In this case you did attempt to escape from Albion State Correctional Institute. And this occurred at 10745 Route 18, Conneaut Township in Erie County, thereby you did commit the crime of escape, and that's a felony of the third degree. How do you plead at Count 1?
MR. GROSSO: Guilty.Id. at 9-10.
This recitation tracks with the charge of Escape in the Information dated July 23, 2019, which states:
The District Attorney of Erie County by this Information charges that on or about the 15th day of March, 2019, in the said County of Erie and State of Pennsylvania, the said RICHARD EUGENE GROSSO did unlawfully remove himself from official detention or did fail to return to official detention following temporary leave granted for the specific purpose or limited period, to-wit: the said RICHARD EUGENE GROSSO did ATTEMPT TO ESCAPE FROM ALBION STATE CORRECTIONAL INSTITUTE occurring at 10745 ROUTE 18, CONNEAUT TOWNSHIP, ERIE COUNTY, PENNSYLVANIA; thereby the said RICHARD EUGENE GROSSO did commit the crime of ESCAPE, a Felony of the Third Degree.
Information at 1. The Information additionally indicates that the statute under which Petitioner was charged with Escape-“18 Pa. C.S. A.5121(a).” Id. at l. That statute reads:
“(a) Escape.--A person commits an offense if he unlawfully removes himself from official detention or fails to return to official detention following temporary leave granted for a specific purpose or limited period.”
For clarity, the undersigned notes that the text of 18 Pa. C.S.A. § 5121(a) was not reproduced on the Information.
Furthermore, the paper record includes a copy of a form entitled “Information,” (which is presumed to be a second page of the Information on its title and its proximity to the above Information in the paper record) which is signed by Petitioner, and dated March 11, 2020 - the date of his plea hearing. On that form, Petitioner indicated that he wished to plead guilty. Id. at 2. The form explicitly and conspicuously states
COUNT ONE:
18P.S. 5121(a)
ESCAPE
Felony of the Third DegreeId. (emphasis in original).
Moreover, during the guilty plea hearing, the state trial court questioned Petitioner regarding the voluntariness of his plea, and explicitly corrected Petitioner's misstatement that he was charged with attempted escape. Petitioner then was given an opportunity to ask questions, and indicated that he had none.
THE COURT: Do you understand what the charges, which were read to you by the Commonwealth, equal these offenses to which you're about to plead guilty?
MR. GROSSO: Yes, sir. Just being charged with attempted escape.
THE COURT: Right. Escape I think is the official term, plus the misdemeanor three. And you do understand you have the right to proceed to trial this week or next week on these charges in front of a jury?
MR. GROSSO: Yeah.
THE COURT: And you have the presumption of innocence, which you're giving by entering your plea?
MR. GROSSO: Right.
THE COURT: Do you have any questions for me about your rights or the rights you're giving up by entering your plea today?
MR. GROSSO: No, sir.
Tr. of Plea Hr'g dated March 11, 2020, at 12.
Petitioner was given a second opportunity to ask questions - and declined to do so - before the state court found his plea to be knowing and voluntary, and accepted it.
THE COURT: Any further questions for me?
MR. GROSSO: So I would just like to let you know what happened.
THE COURT: Well, we're not quite at that point yet. I still just want to make sure that your plea is knowing and voluntary, sir. Do you have any other questions for me?
MR. GROSSO: None.
THE COURT: All right. Then based upon your review of the plea sheet, the colloquy we're having and the fact I believe that you are informed and paying attention through these proceedings, I do believe your plea is knowing and voluntary. I think it s still appropriate to proceed without counsel, so I will accept it.Id. at 13-14 (emphasis added).
Moreover, despite Petitioner's assertion that the charging document indicated that he was charged with attempted escape, or that he was otherwise confused, the paper record provides additional indication that Petitioner was well aware that he was charged with Escape pursuant to 18 Pa. C.S.A. § 5121(a). In addition to the paper record cited above, which shows that Petitioner was provided the Information that clearly charged him with Escape under Section 5121(a), and The Defendant's Statement of Understanding of Rights Prior to Guilty/No Contest Plea, which was signed by Petitioner on the date of his plea, and which explicitly states that “[t]he only plea bargain in my case is the defendant will plead guilty as charged[,]” (emphasis as in original), the paper state court record includes multiple pro se filings and correspondence prior to his plea in which Petitioner acknowledges that he was, in fact, charged with Escape. These include:
Petitioner's issues raised in his PCRA appeal were that the relevant charging document indicated that he was charged with Attempted Escape, and that his trial counsel was him to plead to a crime - Escape - with which he was not charged. Grosso, 2022 WL 7297683, at *3‘ ECF No. 19-1 at 7. The record does not indicate that Petitioner's new argument that he was misled by the prosecution and the state trial court into believing that he was pleading to Attempted Escape, see ECF No. 11 at 2, was fairly presented to the state courts. This provides yet another reason to find that his attack on his guilty plea is procedurally defaulted. Doctor, 96 F.3d at 678.
• “Defendant's Motion for Dismissal of Counsel Pursuant to Pa.R.Cr.P Rule 121, filed pro se on November 21, 2019, in which Petitioner states “1. On 3-15-2019, Defendant was criminally charged with inter alia Escape from SCI-Albion where he was incarcerated. 2. Defendant never did actually break custody from SCI-Albion since he was located within the facility aforementioned.” Id. at 1.
• A letter to Petitioner's counsel, filed pro se with the trial court on February 7, 2020, entitled “Re: File a Motion for Dismissal of Charges Pursuant to Pa. R.C.P Rule 600 and/or Move for Dismissal of Counsel,” in which Petitioner wrote I
previously instructed you to move for dismissal of my Escape charge and/or to dismiss yourself as my attorney[.]” Id. at 1.
• Petitioner's pro se “Motion for Dismissal of Charges Pursuant to Pa R.Cr.P Rule 600,” filed on January 21, 2020, in which he states “Defendant was charged with inter alia Escape on 4-8-2019[.]” Id. at 1.
• Petitioner's pro se “Defendant's Motion to Compel Pennsylvania Department of Corrections (PA DOC) Secretary John E. Wetzel to Rescind Defendant s Restricted Release List (RRL) Decision and Return Defendant to the General Population,” filed on December 11, 2019, in which he states “1. On 3-15-19 Defendant attempted to escape from SCI -Albion[....] 5. On 4-29-19 Defendant was arraigned and charged with Escape, Implements of Escape and Disorderly Conduct.” Id. at 1.
• Petitioner's pro se “Defendant's pro se Motion for Dismissal of Escape Offense, filed on November 21, 2019, in which he states “5. On 4-18-2019, Defendant was criminally charged with 18 Pa. C.S. § 5121(a), Escape[,]” and in which he argues that he cannot be guilty of “Escape and/or Attempted Escape” because he did not break official detention. Id. at 2.
This is a reference to Commonwealth v. McCloskey, 341 A.2d 500 (Pa. Super. Ct. 1975), which Petitioner cites multiple times throughout his briefing. McCloskey is inapposite for two reasons. First it dealt with the former crime of prison breach, 18 Pa. C.S. A. § 4309, which was repealed in 1973. See Com, v. Meise, 312 A.2d 48, 49-50 and n.3 (Pa. Super. Ct. 1973). Second, it was decided before the enactment of the present Pennsylvania Attempt statute, 18 Pa. C.S.A. § 901, which supplanted the common law analysis for abandonment recited in McCloskgy and upon which Petitioner now relies. Com, v. Howard, 375 A.2d 79, 82-83 (Pa. Super. Ct. 1977). To be sure, 18 Pa. C.S.A. § 901(c) allows the defense of “renunciation” - an issue that Petitioner raises based on McCloskey - to the crime of attempt if it is “voluntary and complete[.]” But the statute further states that “(2) A renunciation is not ‘voluntary and complete' within the meaning of this subsection if it is motivated in whole or part by: (i) a belief that circumstances exist which increase the probability of detection or apprehension of the defendant or another participant m the criminal enterprise, or which render more difficult the accomplishment of the criminal purpose[.] Given that the record before this Court indicates that Petitioner's alleged renunciation was motivated by this very thing, see, e.g., ECF No. 5 at 4 (“The mobile unit did not move and petitioner who was counting on using the cover of the early morning darkness to successfully pull this off, realized the sun was coming up and as a result, he ruled out his escape altogether”), his argument that he is innocent even of criminal attempt is unpersuasive.
Here, there is ample evidence that Petitioner actually was aware of the nature and elements of the charges to which he was pleading guilty, knew the rights that he was giving up by pleading guilty - including that the prosecution would have to prove the charges against him beyond a reasonable doubt - and indeed knew that he allegedly did not break from official custody. There is absolutely nothing on the record to indicate that Petitioner was misled by the trial court or by the prosecution into pleading guilty. Thus, even under de novo review, federal habeas relief with respect to Petitioner's guilty plea to the charge of Escape should be denied.
3. Petitioner's counsel was not ineffective.
The Sixth Amendment right to counsel exists “in order to protect the fundamental right to a fair trial.” Lockhart v. Fretwell, 506 U.S. 364, 368 (1993) (quoting Strickland v. Washington, 466 U.S. 668, 684 (1984)). The Supreme Court has formulated a two-part test for determining whether counsel rendered constitutionally ineffective assistance: (1) counsel's performance was unreasonable; and (2) counsel's unreasonable performance actually prejudiced the defense. Strickland, 466 U.S. at 687. To determine whether counsel performed below the level expected from a reasonably competent attorney, it is necessary to judge counsel's challenged conduct on the facts of the particular case, viewed at the time of counsel's conduct. Id. at 690.
The first prong of the Strickland test requires a petitioner to establish that his or her attorney's representation fell below an objective standard of reasonableness by committing errors so serious that he or she was not functioning as the “counsel” guaranteed by the Sixth Amendment. Id. at 688. A court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the totality of the circumstances, the challenged action “might be considered sound trial strategy.” Id. at 689. The question is not whether the defense was free from errors of judgment, but whether counsel exercised the customary skill and knowledge that normally prevailed at the time and place. Id. Instead, Petitioner is required to show “that counsel made errors so serious that counsel was not functioning as the ‘counsel' guaranteed the defendant by the Sixth Amendment.” Harrington v. Richter, 562 U.S. 86, 104 (2001) (quoting Strickland, 466 U.S. at 687). “Where, as here, a defendant is represented by counsel during the plea process and enters his plea upon the advice of counsel, the voluntariness of the plea depends on whether counsel's advice was within the range of competence demanded of attorneys in criminal cases.” HiU, 474 U.S. at 56.
The second prong requires a petitioner to demonstrate that counsel's errors deprived him of a fair trial and the result was unfair or unreliable. Strickland, 466 U.S. at 689. To prove prejudice, a petitioner must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Id. at 694. A “reasonable probability” is one that is sufficient to undermine confidence in the outcome. Id.
a. Withdrawal of guilty plea
To the extent that Petitioner's assertion of ineffective assistance of counsel is predicated on counsel's failure to file a motion to withdraw the guilty plea, Petitioner's claim fails.
First, there is no indication on the record - including in Petitioner's initial PCRA petition effectively filed on October 19, 2020, his counseled supplement to his PCRA petition dated November 19, 2020, the transcript of Petitioner's PCRA hearing dated August 31, 2021, or the Supplemental Brief in Support of Petition for Post Conviction Collateral Relief, dated October 5, 2021, that Petitioner instructed his attorney to withdraw his plea prior to his sentencing on June 18, 2020. To the contrary, Petitioner asserts in his initial PCRA petition that his first post- plea instructions to counsel came on June 18, 2020, when Petitioner instructed counsel to appeal, inter alia, his consecutive probation sentence. Initial Motion for Post Conviction Collateral Relief, at Supplemental Page 4-E. Thus, while the record is unclear on the specific date that Petitioner instructed his trial counsel to attack the validity of his plea, the timeline asserted by Petitioner in his various filings indicates that such instructions were not relayed to counsel until after he was sentenced.
The Superior Court indicates that the initial pro se PCRA petition was filed on October 19, 2020 Grosso 2022 WL 7297683, at *2. However, a review of the paper state court record indicates that the prose PCRA petition first was submitted to the state trial court on or about September 25, 2020 - while Petitioner's direct appeal still was pending.
In light of Petitioner's knowing and voluntary plea, and in the absence of instructions to the contrary, counsel did not act unreasonably in not seeking to withdraw Petitioner s plea prior to sentencing. Dowthitt v. Johnson, 230 F.3d 733, 748 (5th Cir. 2000) (“Counsel will not be deemed ineffective for following their client's wishes, so long as the client made an informed decision.).
Because the record indicates that Petitioner did not instruct counsel to attack his plea until after sentencing at the earliest, the withdrawal of Petitioner's plea would have been subject to the manifest injustice standard. This may be established if Petitioner can show that his plea was not knowing, voluntary, or intelligent. Com, v. Broaden, 980 A.2d 124, 129 (Pa. Super. Ct. 2009). However, as painstakingly established above, Petitioner's plea was knowing, voluntary, and intelligent. This would have precluded relief on any such post-sentence motion.
It is well-established that counsel is not ineffective for failing to file a meritless motion. United States v, Sanders, 165 F.3d 248, 253 (3d Cir. 1999) (“There can be no Sixth Amendment deprivation of effective counsel based on an attorney's failure to raise a meritless argument.); Ross v, Dist. Attorney, 672 F.3d 198, 211 n.9 (3d Cir. 2012) (‘“counsel cannot be deemed ineffective for failing to raise a meritless claim'”) (quoting Werts v. Vaughn, 228 F.3d 178, 202 (3d Cir. 2000)). Courts within this Circuit have determined that where it would be fruitless to challenge a guilty plea, counsel is not ineffective in failing to file post-sentence motions raising such a meritless claim. See, e.g., Dunyan v. Ferguson, No. 16-5362, 2017 WL 9517561, at *6 (E.D. Pa. June 30, 2017), report and recommendation adopted, 2018 WL 2763334 (E.D. Pa. June 8, 2018); Sanchez v. Overmyer, No. 15-5303, 2016 WL 6836960, at *6-7 (E.D. Pa. Oct. 31, 2016), report and recommendation adopted, 2016 WL 6821898 (E.D. Pa. Nov. 18, 2016); Armstrong Winstead, No. 12-2367, 2012 WL 7170400, at *5-7 (E.D. Pa. Oct. 31, 2012), report and recommendation adopted, 2013 WL 638612 (E.D. Pa. Feb. 20, 2013); Lincoln v. Palakoyich, No. 07-1373, 2007 WL 9619686, at *4 (E.D. Pa., June 13, 2007). Because any post-sentence motion to withdraw Petitioner's knowing, voluntary, and intelligent plea of guilty to Escape would have been meritless, trial counsel did not act unreasonably for failing to file the same.
Accordingly, on de novo review, Petitioner's trial counsel was not ineffective in failing to challenge the validity of his guilty plea at sentencing or in a post-sentence motion.
b. Consecutive sentence
As for Petitioner's assertion that trial counsel was ineffective for failing to preserve his challenge that hrs convictions for Escape and Disorderly Conduct should have merged for sentencing, ECF No. 11 at 7, as the Superior Court recognized, his claim fails on the merits because the elements of Disorderly Conduct, pursuant to 18 Pa. C.S. § 5503(a)(4), are not included in the statutory elements of Escape, pursuant to 18 Pa. C.S.A. § 51221(a). Grosso, 2022 WL 7297683, at *6 n.22 (citing 42 Pa. C.S. § 9765). Petitioner has not shown deficient performance of his counsel on this issue, even on de novo review.
Petitioner's direct attack on the ack of merger of his crimes for sentencing, ECF No. 11 at 7, fails for this reason as well. Additionally, Petitioner's merger argument is an issue of state law and not cognizable in a federal habeas petition. Stephenson v. Oilmorg, No. 18-CV-1329 2021 WL 3667904, at *18 (W.D. Pa. Feb. 23, 2021), report and recommendation adopted, 2021 WL 2882441 (W.D. Pa. July 9, 2021). Petitioner further has not demonstrated that the lack of merger of his sentences violated the Double Jeopardy clause, because the Pennsylvania merger statute 42 Pa. C.S. § 9765, is an incorporation of the Supreme Court's test m Blockburger v. United States, 284 U.S. 299, 304 (1932). See Com, v. Wade, 33 A.3d 108, 116 (Pa. Super. Ct. 2011). Accordingly, because his argument is one that sounds in state law - and not a federal Constitutional right - it provides no basis for relief in this federal habeas proceeding.
E. Certificate of Appealability
A certificate of appealability should be denied, as jurists of reason would not debate that Petitioner has failed to show entitlement to relief. See Slack v. McDaniel, 529 U.S. 473, 484-85 (2000).
III. CONCLUSION
For the reasons that follow, it is respectfully recommended that the Amended Petition, ECF No. 11, be denied. It is further recommended that a certificate of appealability be denied.
In accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1), and Local Rule 72.D.2, the parties are permitted to file written objections in accordance with the schedule established in the docket entry reflecting the filing of this Report and Recommendation. Objections are to be submitted to the Clerk of Court, United States District Court, 700 Grant Street, Room 3110, Pittsburgh, PA 15219. Failure to timely file objections will waive the right to appeal. Brightwell v. Lehman, 637 F.3d 187, 193 n. 7 (3d Cir. 2011). Any party opposing objections may file their response to the objections within fourteen (14) days thereafter in accordance with Local Civil Rule 72.D.2.