Commonwealth, Aplt. v. Rizor, J. ( 2023 )

[J-35A-2023 and J-35B-2023]
IN THE SUPREME COURT OF PENNSYLVANIA
WESTERN DISTRICT
TODD, C.J., DONOHUE, DOUGHERTY, WECHT, MUNDY, BROBSON, JJ.
COMMONWEALTH OF PENNSYLVANIA, : No. 32 WAP 2022
:
Appellant : Appeal from the Order of the
: Superior Court entered October 8,
: 2021, at No. 348 WDA 2020,
v. : reversing the Order of the Court of
: Common Pleas of Washington
: County entered February 10, 2020,
JESSICA RIZOR, : at No. CP-63-CR-0002637-2004,
: vacating the Judgment of Sentence
Appellee : entered June 5, 2008, and
: remanding.
:
: SUBMITTED: April 4, 2023
COMMONWEALTH OF PENNSYLVANIA, : No. 33 WAP 2022
:
Appellee : Appeal from the Order of the
: Superior Court entered October 8,
: 2021, at No. 348 WDA 2020,
v. : reversing the Order of the Court of
: Common Pleas of Washington
: County entered February 10, 2020,
JESSICA RIZOR, : at No. CP-63-CR-0002637-2004,
: vacating the Judgment of Sentence
Appellant : entered June 8, 2008, and
: remanding.
:
: SUBMITTED: April 4, 2023
OPINION
JUSTICE DONOHUE DECIDED: NOVEMBER 22, 2023
This case arises out of a Post Conviction Relief Act1 petition filed by Jessica Rizor
(“Rizor”) in which she alleged that trial counsel provided inadequate advice with regard to
a plea offer. According to Rizor, her trial counsel’s inadequate advice led her to proceed
to a trial - where her life sentence was all but assured - in lieu of accepting a plea offer
that would have resulted in a five and a half to thirty-year sentence.2 The Superior Court
agreed and reversed the PCRA court order denying relief and remanded “for a new trial
or entry of a plea.”3 The Commonwealth insists that the PCRA court correctly denied
relief and that the Superior Court’s decision rested on a faulty foundation which assumed
that trial counsel provided ineffective assistance rather than presuming the opposite. The
Commonwealth further believes that the Superior Court improperly ignored the PCRA
court’s credibility determinations. This Court granted review to address whether the
Superior Court erred in reversing the PCRA court’s denial of relief and, if not, the
appropriateness of the remedy granted by the Superior Court.4 As set forth below, we
agree with the Commonwealth. We find that the Superior Court erred in reversing the
PCRA court order denying relief where Rizor has failed to establish a reasonable
probability that but for counsel’s alleged deficient advice, she would have accepted the
1 42 Pa.C.S. §§ 9541-9546 (“PCRA”).
2 Rizor raised six issues before the Superior Court. Rule 1925(b) Statement, 3/17/2020,
¶¶ 1-6; Rizor’s Superior Court Brief, at 6-7; Commonwealth v. Rizor, 266 A.3d 623, 2021
WL 4704669, *3 (Pa. Super. 2021) (non-precedential decision). In granting relief, the
Superior Court declined to address the admissibility of trial counsel’s out-of-court
statements admitting ineffectiveness to another attorney and the correctness of the legal
standard applied by the PCRA court given that resolving those issues would not have
changed its grant of relief. Id. at *5 n.8. These claims remain outstanding.
3 Rizor, 2021 WL 4704669, at *5.
4 According to Rizor, consistent with Commonwealth v. Steckley, 128 A.3d 826 (Pa.
Super. 2015) and Lafler v. Cooper, 566 U.S. 156 (2012), this Court should reverse the
relief granted by the Superior Court and instead remand for the PCRA court to accept
Rizor’s plea to the original plea offer and sentence her accordingly.
[J-35A-2023 and J-35B-2023]- 2
plea deal. We therefore vacate the Superior Court’s judgment and remand to that court
to address Rizor’s outstanding challenges.
We set forth the facts of the case pertinent to the appeal. In 2004, Rizor concealed
from family and co-workers the fact that she was pregnant. Even Rizor’s mother and
husband, with whom she lived, were kept in the dark about the pregnancy. Early in the
morning the day following Thanksgiving 2004, Rizor went to the bathroom of her home
and gave birth to a full-term baby girl. She then placed the baby in plastic bags where
the baby subsequently died. Rizor’s husband found the deceased baby after Rizor
insisted that he take the garbage out of the house. He alerted Rizor’s mother, who called
911 and an investigation ensued. The Medical Examiner performed an autopsy and
discovered that the baby was born alive before dying by asphyxiation. Rizor gave a
written statement to police, wherein she detailed the events surrounding the incident.
Rizor, 2021 WL 4704669, *1 (internal citations omitted). Rizor was charged with murder
and related crimes.
In the four years leading up to trial, Rizor was examined by multiple mental health
professionals at the behest of her trial counsel, Robert Brady, Esquire (“trial counsel”),5
and once pursuant to a request by the Commonwealth. Trial counsel’s defense strategy
was to present a mental health defense through the testimony of Dr. Michael Crabtree
and Dr. Laszlo Petras. Trial counsel indicated, albeit very imprecisely, that the expert
testimony of Dr. Crabtree and Dr. Petras would prove that Rizor neither premeditated the
killing of the baby nor acted with malice in bringing about the baby’s death.6 At points,
5 Rizor was represented by two attorneys at trial. However, for reasons unclear from this
record, she only raises the ineffectiveness of Attorney Brady.
6 See, e.g., N.T., 3/4/2008, at 22 (stating that he intended to present a diminished
capacity defense); id. at 56-57 (“The defense is her state of mind and with her illness she
is incapable of formulating the necessary requirements for a finding of either homicide,
third degree murder or voluntary manslaughter.”); id. (suggesting he was going to argue
(continued…)
[J-35A-2023 and J-35B-2023]- 3
trial counsel framed this as a diminished capacity defense, which, pursuant to the law,
would operate to reduce first degree murder to third degree murder.7 However, trial
counsel also maintained that presenting the testimony would support reducing the
homicide to involuntary manslaughter.8 According to counsel, expert testimony regarding
that she had a mental infirmity “that would put [her] in a position where [she] would
respond differently or may explain illogical responses to stimuli”); N.T., 3/10/2008, at 584-
85 (“[I]t is the defense’s position that this is an involuntary manslaughter case; that the
death of the child was a result of an accident or a lack of action or appropriate action or
misaction on the part of Jessica Rizor.”).
7 To establish a diminished capacity defense, a defendant must prove that her cognitive
abilities of deliberation and premeditation were so compromised, by mental defect or
voluntary intoxication, that she was so unable to formulate the specific intent to kill.
Commonwealth v. Hutchinson, 25 A.3d 277, 312 (Pa. 2011) (citing Commonwealth v.
Rainey, 928 A.2d 215, 237 (Pa. 2007)). “A defense of diminished capacity negates the
element of specific intent, and thus mitigates first-degree murder to third degree murder.”
Commonwealth v. Clemons, 200 A.3d 411, 465 (Pa. 2019) (internal citations omitted).
8 In subsequent argument, trial counsel relied on Commonwealth v. McCusker, 292 A.2d
286, 290-91 (Pa. 1972) to establish the principle that the mental health evidence was
relevant and admissible to establish manslaughter. In McCusker, this Court held that
“[a]pplying the established principles of relevancy to a murder prosecution where a
defendant asserts that he acted in the heat of passion, it seems clear that any evidence-
lay or psychiatric-pertinent to that defense should be admissible.” Id.The prosecution sought a conviction for murder of the first degree, an intentional killing,
“by means of poison, or by lying in wait, or by any other kind of willful, deliberate and
premeditated killing.” 18 Pa.C.S. § 2502(a), (d). It is punishable by “death or a term of
life imprisonment[.]” 18 Pa.C.S. § 1102(a). The prosecution also contemplated murder
of the third degree, a felony of the first degree subject to a sentence “fixed by the court at
not more than 40 years.” 18 Pa.C.S. § 1102(d).
Trial counsel was seeking to reduce the murder to manslaughter which is punishable by
not more than twenty years if voluntary, or not more than ten, if involuntary. 18 Pa.C.S.
§ 2503 (a), (c) (defining voluntary manslaughter as a felony of the first degree); 18 Pa.C.S.
§ 1103(1) (providing that a felony of the first degree is subject to “a term which shall be
fixed by the court at not more than 20 years”); 18 Pa.C.S. § 2504(a), (b) (defining
involuntary manslaughter as a felony of the second degree where the victim is under 12
years of age and in the care, custody or control of the person who caused the death); 18
Pa.C.S. § 1103 (2) (providing that a felony of the second degree is subject to a sentence
“fixed by the court at not more than ten years.”).
[J-35A-2023 and J-35B-2023]- 4
Rizor’s depersonalization disorder9 would explain that she did not lie when she said that
she was not pregnant, but that her disorder caused her to disbelieve that she was
pregnant.
The Commonwealth moved to preclude the expert mental health testimony on the
grounds that it was inadmissible and did not meet the requirements for a mental health
defense. The Commonwealth insisted that the defense failed to meet its burden of
presenting the requisite “extensive psychiatric testimony establishing the defendant
suffered from one or more mental disorders which prevented … her from formulating the
specific intent to kill.” N.T., 3/4/2008, at 23; see also id. at 38. Relying on Commonwealth
v. Cuevas, 832 A.2d 388, 393 (Pa. 2003), the Commonwealth explained that the defense
of diminished capacity is extremely limited, and if successful, reduces first degree murder
to third degree murder only. N.T., 3/4/2008, at 23. It stated that the defense did not have
a single psychiatric report purporting to provide an opinion about Rizor’s inability to
formulate the specific intent to kill, and thus there was no scientifically reliable evidence
to meet the standard. Id. at 23-24, 41. While that motion was pending, the
Commonwealth offered Rizor a five and a half to thirty-year sentence of imprisonment in
exchange for a plea of guilty but mentally ill to third degree murder.
At a pretrial hearing that occurred after the jury was seated, the court addressed
both the plea offer and the mental health evidence. First, the court began discussing the
mental health evidence in chambers when Rizor was not present, but it did not resolve
the issue during that discussion. N.T., 3/4/2008, at 8-47.10 The hearing progressed to
9 Trial counsel stated that this illness was important to explain why Rizor did not believe
or recognize that she was pregnant, and there is research indicating that women who do
not know they are pregnant experience dissociative or depersonalization disorder. N.T.,
3/10/2008, at 571.
10 The parties agree that the trial court did not preclude the evidence and that the
admissibility of the mental health evidence was still under consideration at that point in
(continued…)
[J-35A-2023 and J-35B-2023]- 5
the courtroom, and with Rizor present, the trial court conducted a colloquy regarding her
rejection of the plea. Id. at 48-53. During the colloquy, the court reviewed the charges
against Rizor as well as the possibility of a life sentence. Id. at 49. The plea offer was
recited on the record, and Rizor confirmed that she rejected the offer. Id. at 50. She also
confirmed that she had discussed the plea offer with her attorneys and her family. Id.
The trial court’s colloquy of Rizor included the following:
Q. Ms. Rizor, of course, we haven’t heard all of the
evidence in this case by any means, but I can say from what
I understand what will come in evidence in the next few days
that it is very much possible that the jury could find you guilty
of first degree murder. Do you understand that?
A. Yes sir.
Q. There may be a question of when you might be paroled
on a third degree charge, but there is no likelihood you would
be paroled if the jury comes back with that conviction. Do you
understand?
A. Yes sir.
Q. Are you willing to take that risk?
A. Yes sir.
Q. Are you sure you’re willing to take that risk?
A. Yes.
Q. I notice you’re crying. Are you conflicted about that?
A. No sir.
the proceedings. Rizor’s Brief at 7; Commonwealth’s Brief at 14. We observe that the
trial court signaled that it was inclined to preclude the mental health evidence, but it also
requested copies of the expert reports and case law to aid in its determination, thus
illustrating that the issue was under consideration. N.T., 3/4/2008, at 43-44.
[J-35A-2023 and J-35B-2023]- 6
Id. at 51-52. The trial court also confirmed with Rizor that she had adequate time to think
over the plea offer, that she discussed her defense with her attorneys, and, when asked,
she declined to raise any questions or bring anything to the court’s attention. Id. at 52-
53.
Thereafter, the trial court issued a preliminary ruling precluding the admission of
the mental health expert testimony. Id. at 60-61.11 It was after Rizor rejected the offer
that the trial court precluded the mental health evidence. Rizor proceeded to a jury trial
where trial counsel attempted to convince the jury that the baby was stillborn, and
therefore, that Rizor did not kill the newborn.12
Rizor was convicted of first degree murder, concealing the death of a child, and
abuse of a corpse.13 On June 5, 2008, she was sentenced to life imprisonment. On direct
appeal, the Superior Court affirmed the judgment of sentence, rejecting a claim that the
trial court erred in precluding the mental health evidence. This Court denied Rizor’s
Petition for Allowance of Appeal.
On September 26, 2011, Rizor timely filed an uncounseled PCRA petition which
she subsequently amended with the PCRA court’s permission and the aid of counsel.
PCRA Petition, 9/26/2011; First Amended PCRA Petition, 9/9/2013; Second Amended
PCRA Petition, 10/4/2014. In her second amended PCRA petition, she raised various
claims of ineffective assistance of counsel, two of which are the primary focus of this
11 For purposes of the ineffectiveness claims which are discussed below, the chronology
of events is relevant, though not dispositive of our resolution.
12 The parties emphasize that, after the Commonwealth rested, trial counsel again sought
to introduce psychiatric testimony as to Rizor’s state of mind, but the trial court maintained
its earlier ruling precluding the evidence. N.T., 3/10/2008, at 601. This fact does not
impact our analysis of trial counsel’s pretrial performance.
13 18 Pa.C.S. §§ 2502(a), 4303, 5510.
[J-35A-2023 and J-35B-2023]- 7
appeal.14 First, she alleged that trial counsel provided deficient advice with regard to the
plea offer, a claim which she entitled: “failure to communicate with defendant, prepare for
trial, review plea offer, and discuss sentencing guidelines[.]” Second Amended PCRA
Petition, 10/4/2014 ¶¶ 28-39 (capitalization removed).15 She observed that a claim that
counsel was ineffective in advising a defendant to reject a plea offer is cognizable under
the PCRA. Id. ¶ 39 (citing Commonwealth ex rel. Dadario v. Goldberg, 773 A.2d 126 (Pa.
2001)). In support of this claim, she averred that trial counsel did not fully discuss with
her “the requirements of the defense of diminished capacity, the applicable sentencing
guidelines and/or mandatory sentences for the crimes charged, and the terms of the
Commonwealth’s plea offer.” Id. ¶¶ 36, 38 (alleging that trial counsel’s file contains no
memorialization of any plea discussions with the Commonwealth or any letter to Rizor
regarding a plea). She also averred that trial counsel specifically advised her and her
parents that Rizor “would never set foot on state prison grounds[.]” Id. ¶ 37. She did not
specifically aver that she would have accepted the plea offer if not for trial counsel’s
advice. Id. ¶¶ 28-39.
Second, Rizor alleged that trial counsel was ineffective in failing to present a
cognizable defense. Id. ¶¶ 40-62 (entitling claim “failure to present a cognizable
14 Rizor was first represented by David DiCarlo, Esquire (“first PCRA counsel”) until he
withdrew from representation prior to the evidentiary hearing in June 2008. Rizor was
thereafter represented by Joshua Camson, Esquire (“PCRA counsel”).
15 Her first amended PCRA petition comprised 134 paragraphs without any delineation
of separate claims, thus leading to confusion about where one claim ends and the next
begins. First Amended PCRA Petition, 9/9/2013; see e.g., Commonwealth’s Answer to
First Amended PCRA Petition, 4/1/2014, ¶¶ 42-54 (addressing together the rejection of
the plea offer and the preclusion of the mental health evidence). For instance, she
asserted that trial counsel advised her to reject all plea offers, id. ¶¶ 37-38, and in the
next paragraph jumped to the preclusion of the mental health evidence, id. ¶¶ 39-42. With
permission of the court, she filed the second amended petition adding topic headings to
the body of the petition. See Motion to File Second Amended Petition, 9/30/2014, ¶ 6;
PCRA Court Order, 10/1/2014.
[J-35A-2023 and J-35B-2023]- 8
defense”). According to Rizor, the record shows that at trial, trial counsel aimed to show
that Rizor, due to a mental illness, did not know she was pregnant, and that she gave
birth to a stillborn baby and did not commit homicide. She complained that this defense
was inconsistent with trial counsel’s statements pretrial that there was no dispute that the
baby was born full term and was placed in a bag that was tied and placed in a garbage
can. Id. ¶¶ 41-43. Next, she described how the Commonwealth sought to preclude the
mental health evidence that trial counsel sought to introduce to support a diminished
capacity or manslaughter defense. Id. ¶¶ 44-46. She recounted that the trial court’s
subsequent preclusion of evidence of her diagnosis dramatically limited Rizor’s defense.
Id. ¶¶ 49-50. She complained that trial counsel never informed her of the preclusion of
the mental health testimony, id. ¶ 51, and instead continued to assure her that he would
pursue the diminished capacity defense, id. ¶ 52. She alleged that she proceeded to trial
in reliance upon trial counsel’s “representation that she ‘would never set foot in state
prison’ when the trial was over.” Id. ¶ 53.
She acknowledged that the law accords defense counsel broad discretion, but that
a decision is unreasonable when it is based on a misunderstanding of the applicable law.
Id. ¶ 55. She contended that trial counsel “repeatedly ignored the admissible evidence
tending to establish a defense to homicide because he did not understand the limited
defense of diminished capacity.” Id. ¶¶ 56-58 (recounting that a diminished capacity
defense requires concession of general criminal liability, and it only applies to reduce first
degree murder to third by disproving that the defendant premeditated the killing) (citing
Commonwealth v. Paolello, 665 A.2d 439, 445 (Pa. 1995); Commonwealth v. Bomar, 826
A.2d 831 (Pa. 2003)). Rizor argued that such a defense is not available merely because
a defendant lacked the ability to control her actions or acted impulsively. Id. ¶ 59 (citing
Commonwealth v. Travaglia, 661 A.2d 352 (Pa. 1995)). She complained that trial counsel
[J-35A-2023 and J-35B-2023]- 9
never explained to her that her assertion that the baby was stillborn would preclude a
diminished capacity defense and a manslaughter defense. Id. ¶¶ 60-61. She asserted
that trial counsel was ineffective in insisting on continuing to pursue “this defense[16] when
it was not available and [the trial court] had ruled before trial started that he could not
present it.” Id. ¶ 62.17 First PCRA counsel subsequently withdrew from representation
and was replaced by present PCRA counsel.
In its answer to Rizor’s PCRA petition,18 the Commonwealth insisted that Rizor
failed to meet her burden of establishing that counsel was ineffective in advising her to
reject the plea offer based on the trial record. It recalled the plea colloquy, where Rizor
rejected the plea offer, citing it as evidence that Rizor “was aware of the plea offer,
rejected it, and did so voluntarily, knowingly, intelligently, and with the effective assistance
of counsel.” Commonwealth’s Answer to First Amended PCRA Petition, 4/1/2014, ¶ 49.
The Commonwealth believed it relevant that during the plea colloquy Rizor did not bring
any ineffectiveness issues to the court’s attention. Id. ¶ 50. Further, the Commonwealth
recounted that during the colloquy, the trial court reminded Rizor “that the
16 It is not clear what “this defense” refers to, diminished capacity or manslaughter.
17 Rizor subsequently filed a witness certification of trial counsel regarding a conversation
between PCRA counsel and trial counsel in which trial counsel indicated that he was
willing to testify regarding his representation of Rizor. Witness Certification of David J.
DiCarlo (PCRA counsel) regarding trial counsel, 10/23/2014, at 1-2. He would testify,
inter alia, that he possessed no evidence to contest the Commonwealth’s theory that the
baby was born full term; that he believed that the mental health testimony would lead to
an acquittal or a manslaughter verdict, at worst; that he did not realize that his arguments
to the jury that the baby was stillborn meant that the jury would not be able to consider
manslaughter; and that he believes that if he had been better prepared and not committed
these (and other) errors, the result of the trial would have been different. Id.
18 The Commonwealth filed an answer to the first amended PCRA petition only. As noted
above, see supra note 14, the answer addresses together the factual allegations
supporting Rizor’s claim that trial counsel was ineffective in advising her to reject the plea
with the allegations supporting her assertion that trial counsel was ineffective in failing to
present a cognizable defense.
[J-35A-2023 and J-35B-2023]- 10
Commonwealth’s evidence had a high likelihood of conviction and the resulting sentences
that could be imposed upon conviction.” Id. ¶ 50; see N.T., 3/4/2008, at 48-53 (“Ms. Rizor,
of course, we haven’t heard all the evidence in this case by any means, but I can say
from what I understand what will come in evidence in the next few days that is very much
possible that the jury could find you guilty of first degree murder. Do you understand
that?”). The Commonwealth also argued that the record showed that Rizor knew of the
preclusion of the mental health evidence. Id. ¶ 51.
The PCRA court issued an opinion announcing its intention to dismiss Rizor’s
petition without an evidentiary hearing. PCRA Court Opinion, 7/16/2015. With regard to
Rizor’s first claim that trial counsel was ineffective for advising her to reject the plea offer,
the PCRA court found that Rizor was adequately advised of the plea deal and rejected it.
It observed that Rizor’s allegations in the PCRA petition were contradictory. It pointed
out that she claimed both that trial counsel did not review the plea offer with her and that
trial counsel advised her to reject the plea. Id. at 11. The PCRA court also relied on the
notes of the testimony from the plea colloquy as demonstrating that trial counsel
discussed with her the charges and the plea offer. Id. at 16. Also based on the plea
colloquy, the PCRA court found that Rizor acknowledged the possibility of receiving a life
sentence and that she was satisfied with trial counsel’s representation. Id. at 16.
In addressing this claim, the PCRA court recounted the discussion regarding the
admissibility of the mental health testimony culminating in the preclusion of the mental
health evidence. Id. at 15-16. The PCRA court stated that the Superior Court affirmed
its preclusion of this evidence on appeal.19 Id. at 16. The PCRA court did not explain
19 On direct appeal, trial counsel continued to argue that the trial court erred in precluding
the mental health evidence. Rizor’s Superior Court Brief, 5/28/2009, 2009 WL 6324866at *19-29. In fact, the Superior Court deemed the claim waived on appeal given that the
expert reports were not included in the certified record. Commonwealth v. Rizor, 1128
WDA 2008, at 13 (Pa. Super. Aug. 27, 2010) (non-precedential decision). The Superior
(continued…)
[J-35A-2023 and J-35B-2023]- 11
how that discussion was relevant to Rizor’s rejection of the plea offer which occurred
earlier in time. Id. at 15-16.
Next, the PCRA court addressed and rejected Rizor’s claim that trial counsel was
ineffective for failing to present a cognizable defense. Id. at 16. The court further
characterized this claim as
essentially a reiteration of the first allegation of
ineffectiveness, in which she claims that counsel did not
explain to her that her psychological and psychiatric reports
did not amount to an insanity defense or a diminished capacity
defense, and did not tell her that the trial court granted the
Commonwealth’s motion to preclude the admission of these
reports.
Id. at 17. According to the PCRA court, Rizor complained that trial counsel pursued
unavailable defenses while ignoring other admissible evidence that amounted to a
defense. Id. In addressing this claim, the PCRA court recounted the evidence
establishing that Rizor killed the baby then concealed the killing. Id. at 18. Then it stated
that “counsel cannot be deemed ineffective for failing to present a cognizable defense
where none existed.” Id. It reasoned that defense counsel’s duty “is to test the
prosecution’s evidence and to see that the defendant receives a fair trial, not to ‘cut a
defense out of whole cloth.’” Id.
Moreover, the PCRA court reasoned, to establish an ineffectiveness claim, the
petitioner must prove that “a different result would have occurred had the errors not been
committed.” Id. (citing Commonwealth v. Pierce, 527 A.2d 973, 975-76 (Pa. 1987);
Commonwealth v. Wallace, 724 A.2d 916 (Pa. 1999)). The PCRA court found that Rizor
failed to establish prejudice, concluding with the following reasoning:
Court stated that even if the expert reports were available, it would nonetheless conclude
that the trial court properly rejected the diminished capacity defense because Rizor did
not concede liability, a prerequisite to advancing such a defense. Id. at 13-15.
[J-35A-2023 and J-35B-2023]- 12
At no time did [Rizor] express a desire to accept a plea, to
admit guilt or to take responsibility for her actions. It was
clear, after the trial court’s colloquy of [Rizor], … that [she]
was not willing to admit that she had committed this terrible
act. Moreover, in her PCRA petition, although she claims that
she was not adequately informed by her trial counsel of the
plea offers and the likelihood of prevailing at trial, which the
record refutes, at no time does [Rizor] express that she would
have accepted a guilty plea, had she been properly advised.
Instead, [Rizor] argues the alternative, that had trial counsel
been more effective, she may have been acquitted.
Id. at 18.20
Rizor filed an objection, asserting that the PCRA court failed to properly analyze
“the effect of [trial counsel]’s advice and th[e PCRA c]ourt’s ruling concerning mental
infirmity evidence, and its effect on [Rizor]’s poorly counseled decision to reject the plea
offer.” Rizor’s Objection to Notice of Intent to Dismiss, 8/12/2015, ¶ 3(a). Rizor alleged
three issues of material fact that she claimed would entitle her to relief: (1) that trial
counsel never explained the effect of the preclusion of the mental health evidence and
the implications of her failure to concede the killing for a diminished capacity defense; (2)
that trial counsel failed to explore and present testimony regarding a possible diagnosis
of “denial of pregnancy[;]” and (3) that Rizor’s mother, if called to testify, would have
rebutted the Commonwealth’s assertion that Rizor prepared for the baby’s birth and
anticipated killing the baby. Id. ¶ 3(b)(i)-(iii). She did not respond to the court’s prejudice
finding or aver that she would have accepted a guilty plea.
The PCRA court issued an opinion and order dismissing the PCRA petition and
addressing Rizor’s objections. PCRA Court Order, 2/5/2016. It reiterated that Rizor’s
assertions that trial counsel did not explain the diminished capacity defense or its
20 Having rejected Rizor’s first two ineffectiveness claims ((1) failure to advise Rizor to
accept the plea and (2) failure to present a cognizable defense), the PCRA court then
analyzed and rejected Rizor’s remaining four claims, claims which she has since
abandoned. See PCRA Court Opinion, 1/16/2020, at 10 (indicating that on remand PCRA
counsel informed the court by letter that she is seeking relief only on these two issues).
[J-35A-2023 and J-35B-2023]- 13
implications are belied by the record of the plea colloquy, wherein Rizor acknowledged
that she and trial counsel had discussed her defense at trial. Id. at 2 (citing N.T., 3/4/2008,
at 48-53). Further, the court explained, such a defense requires a concession of liability,
but Rizor “has never expressed a willingness to concede liability.” Id. at 2-3. Such a
concession was inconsistent with the trial strategy of arguing that the baby was stillborn,
and according to the PCRA court, it could only achieve what Rizor was offered and
rejected. Id. at 3.
Rizor timely appealed, arguing that the PCRA court erred in dismissing her petition
without an evidentiary hearing given that there were genuine issues of material fact.
Commonwealth v. Rizor, 2017 WL 2482941, *1 (Pa. Super. 2017) (non-precedential
decision).21 The Superior Court agreed that an evidentiary hearing was necessary,
addressing together Rizor’s two claims that but for trial counsel’s deficient advice, she
would not have rejected the plea offer and that trial counsel did not have a cognizable
defense strategy. Id. at *1. The panel considered Rizor’s arguments that the evidence
against her was “insurmountable” and that “a competent attorney never would have
advised her to risk trial.” Id. Further, it noted Rizor’s assertion that trial counsel repeatedly
tried to present a diminished capacity defense despite the court’s pretrial determination
that evidence of Rizor’s mental health was inadmissible. Id.
The panel observed that the PCRA court had rejected Rizor’s argument on the
grounds that, during the colloquy, Rizor had indicated that she was not pressured to reject
the plea. However, according to the Superior Court, the issue was not whether Rizor was
pressured, but instead, whether counsel gave bad advice about his purported ability to
present a mental health defense. Id. at *2-3. The panel also observed that trial counsel's
21 The PCRA court issued a Pa.R.A.P. 1925(a) opinion which contains the same analysis
as its opinion issued in conjunction with its notice of intent to dismiss.
[J-35A-2023 and J-35B-2023]- 14
failure to present a cognizable defense is relevant to evaluating the reasonableness of
counsel’s advice to Rizor not to take the plea. More specifically, the court opined that
“[w]ithout the ability to present any exculpatory mental health testimony, and no other line
of defense evident from the transcripts, counsel would have no reasonable basis for
rejecting the plea.”22 Id. at *3. With respect to prejudice, the Superior Court stated that,
had counsel advised Rizor to accept the plea offer, and had she accepted the offer, she
would have received a sentence of five and a half to thirty years of incarceration rather
than the life without the possibility of parole sentence she is serving. Id. In concluding,
the panel recited the de novo standard of review for the PCRA court’s legal conclusions.
Id. at *3 (citing Commonwealth v. Hardcastle, 701 A.2d 541, 542-43 (Pa. 1997)). It
determined that Rizor “demonstrated a genuine issue of material fact based on the
pleadings” and that “[t]he PCRA court abused its discretion in failing to hold an evidentiary
hearing.” Id. Therefore, the Superior Court panel vacated the PCRA court’s order
dismissing the petition and remanded for an evidentiary hearing. Id. at *3.
Notably, the court conflated two distinct points in the record. As described above,
Rizor first rejected the plea, then the trial court issued its ruling precluding the mental
health evidence. However, the Superior Court panel’s analysis of the issue suggests that
trial counsel should have advised Rizor to accept the plea based on the preclusion of the
mental health evidence, a ruling which had not yet issued. The panel stated:
[Rizor] claims she believed trial counsel had a legally sound
defense when she rejected the plea. The court's evidentiary
22 The Superior Court also observed that the certified record contains a witness
certification from first PCRA counsel regarding his conversation with trial counsel in which
trial counsel admitted his ineffectiveness and expressed willingness to testify before the
PCRA court. Rizor, 2017 WL 2482941 at *3 (citing Amended Witness Certification of
Robert Brady, filed 10/23/14, at 2). The court found that Rizor’s averments alone were
sufficient to warrant remand for an evidentiary hearing, but it also found that the witness
certification “bears mentioning when evaluating the arguable merit of Appellant's
ineffective assistance claim.” Id.[J-35A-2023 and J-35B-2023]- 15
ruling prior to trial eviscerated counsel's ability to present this
defense. Without the ability to present any exculpatory mental
health testimony, and no other line of defense evident from
the transcripts, counsel would have no reasonable basis for
rejecting the plea.
Id. at *3. This mistake confuses the procedural events leading up to trial. If Rizor’s trial
counsel’s defense was entirely eviscerated and there was a plea deal on the table,
certainly trial counsel had a duty to explain that to Rizor and to advise her to take the
deal. However, that was not the reality. When the plea deal was addressed, the mental
health evidence was still in dispute and the trial court had not issued an order precluding
it.
Returning to the procedural history, on remand, the PCRA court scheduled an
evidentiary hearing which ultimately took place on June 8, 2018. Only Rizor testified.
Rizor testified regarding the plea discussions and her rejection of the plea. She explained
that trial counsel discussed the plea deal with her on the morning of jury selection. She
admitted that he advised her that the offer was for a sentence of five and a half to thirty
years of imprisonment. N.T., 6/8/2018, at 50-51. She also acknowledged that trial
counsel told her that she could be convicted of first or third degree murder, and she knew
of the possibility of a life sentence, though she stated that “he didn’t specify, you know,
specifics as far as third degree goes.” Id. at 47-48.
Rizor testified regarding the discussion she had with trial counsel regarding the
plea offer: “He told me I had one more chance [to take the plea], if I wanted to take it I
could.” N.T., 6/8/2018, at 37-38. “I asked him if he thought we had a good chance of
winning at trial. He said, absolutely. And I told him that if there was a chance, that I did
want to take it to trial.” Id. She admitted on cross-examination that trial counsel did not
tell her that there was a 100% chance of beating the charges. Id. at 53-54. PCRA counsel
asked her, “if [trial counsel] had told you, we have no chance of winning, how would that
have affected your decision?” and she answered: “If I had no chance, I would have taken
[J-35A-2023 and J-35B-2023]- 16
the plea offer.” Id. at 42. She testified that trial counsel never told her that she did not
have a chance, not even after the trial court precluded that the mental health evidence.
Id. On cross-examination, she acknowledged that “[t]here is always that chance” of being
found not guilty and she was hoping for that chance. Id. at 54. Rizor also testified that
she rejected the plea offer because trial counsel told her that she “would never set foot
on state grounds.” Id. at 40. She said that trial counsel “assured [her] that [she] would
get something less than” the time offered in the plea offer. Id. at 42.
With regard to the mental health reports, Rizor admitted that prior to trial, she knew
that expert mental health reports would not be introduced into evidence on her behalf.
N.T., 6/8/2018, at 38-39. Further, she testified that her understanding was that the
prosecution still could call those witnesses, and “if they did, then [trial counsel] would be
able to question them.” Id. at 39. She testified that trial counsel told her that the
prosecution probably would call the expert witnesses, id. at 39-40, but she also admitted
on cross-examination that there was nothing specific that made her think the
Commonwealth would introduce the mental health evidence, id. at 56-58. In response to
questioning by the PCRA court, she testified that by the end of trial, when she saw that
no mental health expert testified from either side, she did not attempt to restart
conversations with trial counsel about the plea deal. Id. at 69-70. She stated that she
questioned trial counsel about why certain witnesses were not called, but that he assured
her that “he had things under control.” Id. Finally, she testified that she was under the
impression that the plea offer was no longer available after she had rejected it on the
record. Id. at 70.
The PCRA court scheduled another hearing for November 26, 2018, and ordered
that trial counsel, who had since retired from the practice of law and left the jurisdiction,
make himself available for the hearing. Despite this, trial counsel did not comply with the
[J-35A-2023 and J-35B-2023]- 17
court’s order. Trial counsel was deemed unavailable, and so the PCRA court precluded
testimony regarding the conversation between trial counsel and first PCRA counsel during
which trial counsel purportedly admitted many of the allegations of his ineffective
assistance. See supra notes 17, 22.
The PCRA court issued an opinion and order, indicating its intention to dismiss the
PCRA petition. PCRA Court Opinion, 1/16/2020.23 First, the court addressed the claim
that counsel provided deficient advice with regard to the plea offer. It again found Rizor’s
allegations—that counsel failed to review the plea with her and also advised her to reject
the plea because she “would never set foot on state grounds”—contradictory. Id. at 11.
Further, the court reiterated its prior holding that the allegations are belied by the plea
colloquy and the discussions of the preclusion of the mental health evidence. Id. at 11-
16. The court explained,
[a]s the record reflects, [trial counsel] did discuss the charges
with [Rizor], as well as the plea bargain, which [Rizor]
acknowledged when asked by the trial court. [Rizor] further
acknowledged, while under oath, that she had discussed the
plea bargain with trial counsel, the ramifications of not
accepting the plea, including a sentence of life without parole,
and that she was satisfied with counsel’s representation.
Moreover, the trial court informed [Rizor] that if she accepted
a plea or was convicted, although she would receive credit for
time served, she would serve the balance of her sentence in
a state correctional facility, and parole, if eligible, would be
subject to the Pennsylvania Board of Probation and Parole.
During the PCRA hearing, [Rizor] admitted that she was being
honest during the colloquy with the trial court and everything
she told the trial court was true at that time.
Id. at 16 (internal citations to notes of testimony omitted). The PCRA court recounted
Rizor’s testimony from the evidentiary hearing, highlighting her admissions that she went
to trial hoping for a chance of acquittal, but “she was fully aware that she could be
23 The PCRA court styled this as a notice of intention to dismiss a PCRA petition without
a hearing pursuant to Pa.R.Crim.P. 907, although a hearing was held.
[J-35A-2023 and J-35B-2023]- 18
convicted and that the conviction could result in a life sentence[.]” Id. at 19. The PCRA
court also highlighted Rizor’s testimony that she was aware that the mental health experts
had been excluded from testifying in her defense. Id.
The PCRA then stated:
The court did not find credible [Rizor’s] claims that she was
uninformed at the time she rejected the plea offer, that she did
not know that her mental [health] experts would not be
permitted to testify, and that she would not have rejected the
Commonwealth’s plea offer had she known the defense
mental health experts would not be permitted to testify.
Id. at 22. It recalled that the trial court had, in open court in Rizor’s presence, explained
that it was precluding the defense mental health experts’ testimony because the reports
did not constitute a legal defense, and that the testimony which may have impacted her
behavior on the date of the incident was not admissible. Id. Further, the court observed,
“[Rizor] admitted that she knew that the mental health reports would not be introduced on
her behalf” before trial. Id. Additionally, even once it became clear that no expert mental
health testimony was being offered on her behalf, “she expressed no desire to revisit the
plea offer or inquire whether the plea offer was still available.” Id.
Finally, the PCRA court cited Rizor’s testimony from the PCRA evidentiary hearing
in which she “admitted that she was speaking honestly when she was engaged in the
colloquy with the trial court, just before trial.” Id. It called upon her testimony from the
colloquy in which she acknowledged that she had reviewed her defenses with trial
counsel, she stated she was satisfied with their representation, and she answered in the
negative when the trial court asked if there was anything else she wanted to bring to its
attention during the colloquy. Id.
The PCRA court then addressed Rizor’s claim that trial counsel failed to present a
cognizable defense. Id. It stated that this claim was essentially a reiteration of her first
claim, “in which [Rizor] claim[ed] that counsel did not explain to her that her psychological
[J-35A-2023 and J-35B-2023]- 19
and psychiatric reports did not amount to an insanity defense or a diminished capacity
defense, and did not tell her that the trial court” precluded the reports. Id. at 23-24. The
court concluded that this claim, too, was “refuted by the record.” Id. at 24. Not recognizing
that the mental health experts were precluded after the plea offer was rejected, it
reiterated that it did not find credible Rizor’s claims that she was uninformed at the time
she rejected the plea offer and that she did not know that the mental health evidence was
precluded. Id. The court pointed out that Rizor admitted that she knew of the preclusion
of the mental health evidence and that she had discussed her defenses with her attorneys
and stated during the colloquy that she was satisfied with their representation. Id.
Further, the PCRA court recapped the mental health evidence gathered and
presented to it, then reiterated its determination that “none of the experts expressed the
opinion that [Rizor] suffered from a condition which rendered her incapable of forming the
specific intent to kill[,]” as the law requires. Id. at 26-27. The court stated that, given its
preclusion of trial counsel’s statements to first PCRA counsel, there was no evidence that
trial counsel did not understand the diminished capacity defense. Id. Further, it read trial
counsel’s pretrial arguments about the purpose of the mental health testimony as
demonstrating that he was aware of the limitations of the diminished capacity defense.
Id. at 28 (citing N.T., 3/4/2018, at 58).
The PCRA court then stated that, even if it had accepted evidence that trial counsel
did not understand the law regarding the relevant defenses, Rizor failed to establish
prejudice given that “the mental health reports would not be admissible in any case.” Id.
at 28. The court stated that “[t]he failed efforts of trial counsel to introduce” these reports,
which were clearly inadmissible and irrelevant, “whether due to his misunderstanding or
otherwise, did not affect the outcome of the trial.” Id. at 29.
[J-35A-2023 and J-35B-2023]- 20
Reinforcing its rejection of prejudice, the PCRA court explained that trial counsel’s
failure to present a cognizable defense at trial is not attributable to trial counsel given the
incontrovertible facts of the case. “[C]ounsel cannot be deemed ineffective for failing to
present a cognizable defense where none existed.” Id. The court also rejected the notion
that Rizor suffered prejudice because, had she known about the lack of a cognizable
defense, she would have accepted a plea. The court explained: “At no time did [Rizor]
express a desire to accept a plea, to admit guilt or to take responsibility for her actions.
It was clear, after the trial court’s colloquy of [Rizor]… that [she] was not willing to admit
that she had committed this terrible act.” Id. at 30. The PCRA court explained “at no
time did [Rizor] express that she would have accepted a guilty plea, had she been
properly advised.” Id. (emphasis added). Therefore, the PCRA court indicated it
intended to deny and dismiss the PCRA petition.
Rizor filed a response, observing that it was not legally required to respond, but
nonetheless raising objections to what she characterized as the PCRA court’s legal
conclusions. Response to Notice of Intent to Dismiss, 1/30/2020, ¶¶ 5-6. In objecting to
the PCRA court’s rejection of the first claim, she alleged that she established each prong
of the ineffective assistance of counsel test. With regard to prejudice, she asserted
without citation to the record: “Had trial counsel properly informed [Rizor] of the
inevitability of a conviction, [Rizor] would have accepted a plea agreement and thus her
sentence would have been significantly shorter.” Id. ¶ 6(f)(iii).
On February 10, 2020, the PCRA dismissed Rizor’s PCRA petition. PCRA Court
Order, 2/10/2020. Rizor timely appealed and filed a concise statement of matters
complained of on appeal pursuant to Pa.R.A.P. 1925(b). Rule 1925(b) Statement,
[J-35A-2023 and J-35B-2023]- 21
3/17/2020, ¶¶ 1-6.24 She continued to advance her claim that trial counsel provided
deficient advice regarding the plea offer. Id. ¶ 3 (raising claim regarding whether the
PCRA court erred in rejecting her claim that “trial counsel was ineffective for failing to
properly counsel her about her chances of [sic] trial, thus ineffectively representing her in
the plea bargaining phase … and causing prejudice to her in the form of going to trial on
a case with no chance of success[]”). She also maintained her argument regarding
counsel’s failure to present a cognizable defense. Id. ¶ 5 (“Did the PCRA court err in
dismissing [Rizor’s PCRA p]etition where [Rizor] proved that trial counsel did not present
a cognizable defense, thus resulting in a conviction of murder and a sentence of life in
prison?”). She also raised a claim regarding whether the PCRA court erred “in dismissing
[Rizor’s PCRA petition] where [Rizor] proved that her trial counsel was ineffective for
failing to apprise her of the reduced likelihood of success of the defense strategy after the
trial court precluded her mental health evidence, and that she was prejudiced by this
ineffective counsel[.]” Id. ¶ 4.
The PCRA court issued an opinion pursuant to Pa.R.A.P. 1925(a). It combined its
analysis of Rizor’s claim regarding deficient plea advice with its analysis of Rizor’s claim
regarding trial counsel’s failure to advise her of the reduced likelihood of success of the
defense strategy after the mental health evidence was precluded. The advice after the
mental health evidence was precluded would have necessarily been different given (1)
that a mental health defense was no longer plausible and (2) the Commonwealth’s plea
offer was no longer available. Combining its analysis of the claims had the unfortunate
24 She raised two issues regarding the preclusion of prior PCRA counsel’s testimony
regarding his conversation with trial counsel. Rule 1925(b) Statement, 3/17/2020, ¶¶ 1-
2. She also raised an issue regarding the PCRA court’s application of the Pierce test. Id.
¶ 6. The PCRA court addressed all of these claims in its 1925(a) opinion. PCRA Court
Opinion, 1/16/2020.
[J-35A-2023 and J-35B-2023]- 22
result of conflating the facts. Nonetheless, the court’s core analysis holds true as to both
claims: Rizor failed to establish prejudice.
With respect to prejudice, the PCRA court’s determination largely turned on its
rejection as incredible Rizor’s claim that she would have accepted the plea offer, but for
counsel’s deficient advice. PCRA Court Opinion, 6/29/2020, at 30. It recalled that the
trial court had, in open court in Rizor’s presence, explained that it was granting the
Commonwealth’s motion in limine to exclude any of the defense mental health experts’
testimony because the reports did not constitute a legal defense, and that the testimony
which may have impacted her behavior on the date of the incident was not admissible.
Id. It also recalled Rizor’s acknowledgment during her colloquy that she was satisfied
with trial counsel’s representation and did not bring any issues to the trial court’s attention.
Id. at 31.
Further, the PCRA court observed that Rizor acknowledged in her testimony that
she knew that the mental health reports would not be introduced on her behalf. Id. at 30-
31. The PCRA court also found significant the fact that (according to Rizor’s testimony
at the PCRA hearing) Rizor did not express a desire to revisit her plea offer or inquire
whether the plea offer was still available. The PCRA court stated that Rizor “admitted
that she would have considered accepting the plea offer only if she had ‘no chance.’” Id.
at 31 (citing N.T., 6/8/2018, at 42). The PCRA court thus rejected the claim, finding that
there was no prejudice. Id. at 39.
The PCRA court also rejected Rizor’s claim regarding trial counsel’s alleged failure
to present a cognizable defense, rehashing its preceding opinion and order. Compare
PCRA Court Opinion, 6/29/2020, at 31-39, with PCRA Court Opinion, 1/16/2020, at 23-
31.
[J-35A-2023 and J-35B-2023]- 23
On appeal, with the benefit of the evidentiary record, the Superior Court again
disagreed with the PCRA court’s evaluation of the claims alleging that counsel provided
inadequate advice during plea-bargaining. The court observed that Rizor presented six
issues for review, which it reordered to facilitate its disposition:
[1.] Did the PCRA court err in dismissing [Rizor’s] Petition
where [she] proved that [trial counsel] was ineffective for
failing to properly counsel her about her chances of trial, thus
ineffectively representing her in the plea bargaining phase of
the case and causing prejudice to her in the form of going to
trial on a case with no chance of success?
[2.] Did the PCRA court err in dismissing [Rizor’s] Petition
where [she] proved that [trial counsel] was ineffective for
failing to apprise her of the reduced likelihood of success of
the defense strategy after the trial court precluded her mental
health evidence, and that she was prejudiced by this
ineffective counsel?
[3.] Did the PCRA court err in dismissing [Rizor’s] Petition
where [she] proved that [trial counsel] did not present a
cognizable defense, thus resulting in a conviction of murder
and a sentence of life in prison?
[4.] Did the PCRA court err in refusing to allow the testimony
of [prior PCRA counsel] concerning his earlier conversations
with [trial counsel] where [trial counsel] admitted he was
ineffective in this matter?
[5.] Did the PCRA court err in refusing to admit the statements
of [trial counsel] where those statements were proper
evidence for the PCRA court's consideration?
6. Did the PCRA court apply the wrong legal standard by
concluding that there were no genuine issues of material fact
rather than applying the Pierce test to [Rizor’s] properly pled
and proven Petition?
Rizor, 2021 WL 4704669, *3 (citing Rizor’s Superior Court Brief, at 6-7).25
25 The Superior Court granted relief because of the inadequacy of trial counsel’s advice
to Rizor regarding her plea offer and stated that it was not reaching the final three issues
as they were rendered irrelevant. Rizor, 2021 WL 4704669 at *5, n.8. Given the
(continued…)
[J-35A-2023 and J-35B-2023]- 24
The Superior Court addressed the second claim, concluding that the PCRA court
erred in dismissing Rizor’s PCRA petition where she proved that trial counsel was
ineffective for failing to apprise her of the reduced likelihood of success of the defense
strategy after the trial court precluded her mental health evidence. It recounted Rizor’s
testimony from the PCRA evidentiary hearing that, although she understood that trial
counsel would not introduce the mental health reports on her behalf during trial, she still
believed that trial counsel could question the mental health experts if and when they were
called by the Commonwealth. Id. at *4 (citing N.T., 6/8/2018, at 39-40, 56-58, 64-66).
Thus, and again conflating the timing of the rejection of the plea and the preclusion of the
expert testimony, the court explained that Rizor’s decision to reject the plea offer was
“predicated upon the mistaken belief that her attorney would be able to present a mental
health defense.” Id. On that basis, the court found that her claim had arguable merit. Id.The Superior Court then recalled that the PCRA court stated that counsel cannot
be deemed ineffective for failing to present a cognizable defense. Id. at *4 (citing PCRA
Court Opinion, 1/16/2020, at 21-31). However, the court explained, “trial counsel’s failure
to present a cognizable defense goes toward evaluating the reasonableness of counsel’s
advice not to take the plea.” Id. It recalled the previous panel’s opinion, prior to the
evidentiary hearing, which explained:
[Rizor] claims she believed trial counsel had a legally sound
defense when she rejected the plea. The court’s evidentiary
ruling prior to trial eviscerated counsel’s ability to present this
defense. Without the ability to present any exculpatory mental
health testimony, and no other line of defense evident from
the transcripts, counsel would have no reasonable basis for
rejecting the plea.
questions upon which we granted review, we limit our discussion to the issues addressed
by the Superior Court.
[J-35A-2023 and J-35B-2023]- 25
Id. at *4 (citing Rizor, 2017 WL 2482941 at *3). The lower court thus carried forward the
conflated chronology.
The Superior Court stated that the prejudice was self-evident. “Had counsel
advised [Rizor] to take the plea and [Rizor] thereby accepted the advice, she would have
received a sentence of [five and a half to thirty] years of incarceration—instead of the life
without the possibility of parole sentence that she is currently serving.” Id. at *5. The
court then concluded that Rizor established all three elements of a claim of ineffective
assistance of trial counsel. “Ergo, she has overcome the presumption of [sic] that counsel
was effective.” Id. Therefore, the court stated it was compelled to reverse the order of
the PCRA court, vacate the underlying judgment of sentence, and remand for a new trial
or entry of plea.26
The Commonwealth subsequently filed a petition for allowance of appeal, and
Rizor filed a cross-petition for allowance of appeal. The Court granted review of the
following issues raised by the Commonwealth:
Did the Superior Court err by creating an impracticable
standard with substantial implications for the adjudication of
claims under the PCRA?
Did the Superior Court so abuse its discretion as to call for the
exercise of this Honorable Court’s supervisory authority?
Commonwealth v. Rizor, 281 A.3d 1028 (Pa. 2022) (per curiam). We also granted review
of the issue raised by Rizor:
Should this Court grant allowance of appeal where the
Superior Court’s decision conflicts with the United States
Supreme Court’s decision in Lafler v. Cooper, 566 U.S. 15626 The court did not reach Rizor’s two challenges concerning the admissibility of out of
court statements at the PCRA evidentiary hearing, given that the record established that
she was entitled to relief based on the testimony presented. Finally, the court stated that
it was “irrelevant to our review whether the PCRA court used the correct legal standard
in considering [Rizor’s] ineffectiveness claims, as we have done so.” Rizor, 2017 WL
2482941 at *5 n.8.
[J-35A-2023 and J-35B-2023]- 26
(2012) and the Superior Court’s prior decision in
Commonwealth v. Steckley, 128 A.3d 826 (Pa. Super. 2015)?
Id.As we are addressing these questions on appeal from the PCRA court’s denial of
relief, we consider whether the factual findings are supported by the record and free of
legal error. Commonwealth v. Lopez, 249 A.3d 993, 998 (Pa. 2021). We review the legal
conclusions de novo, but the PCRA court’s credibility determinations, when supported by
the record, are binding. Id. Finally, the scope of review is limited to the findings of the
PCRA court and the evidence of record, viewed in the light most favorable to the
Commonwealth as the prevailing party before the PCRA court. Commonwealth v.
Koehler, 36 A.3d 121, 177-78 (Pa. 2012).
To be entitled to PCRA relief, Rizor must establish, by a preponderance of the
evidence, that she has been convicted of a crime under the laws of the Commonwealth
and is currently serving a sentence of imprisonment, 42 Pa.C.S. § 9543(a)(1), that her
conviction or sentence resulted from one or more of the enumerated errors in 42 Pa.C.S.
§ 9543(a)(2), that her claims have not been previously litigated or waived, and that the
failure to litigate the issues prior to or during trial was not the result of a rational, strategic
or tactical decision by counsel. 42 Pa.C.S. § 9543(a)(3), (4). Counsel is presumed
effective. Commonwealth v. Fears, 86 A.3d 795, 804 (Pa. 2014). To succeed on a claim
asserting the ineffective assistance of counsel, as is raised here, a petitioner must rebut
that presumption by pleading and proving, by a preponderance of the evidence, three
elements: (1) the underlying claim has arguable merit; (2) counsel had no reasonable
basis for his or her action or inaction; and (3) the petitioner suffered prejudice as a result
of counsel’s action or inaction. Commonwealth v. Pierce, 527 A.2d 973, 975-76 (Pa.
1987). If a petitioner fails to satisfy any one of the three elements, her claim fails.
Commonwealth v. Brown, 196 A.3d 130, 150-51 (Pa. 2018).
[J-35A-2023 and J-35B-2023]- 27
We address first the Commonwealth’s contentions – that the Superior Court
applied the wrong standard and abused its discretion in granting Rizor PCRA relief. The
resolution of either question in the Commonwealth’s favor obviates the need to address
Rizor’s claim regarding the form of relief granted. Because of the interrelatedness of the
Commonwealth’s two issues, we discuss their arguments together.
Parties’ Arguments
The Commonwealth asserts that the Superior Court erred in assuming that trial
counsel – unavailable to defend his actions – provided ineffective assistance based purely
on Rizor’s hindsight regret. Commonwealth’s Brief at 20. The Commonwealth also
insists that the Superior Court abused its discretion in ignoring the PCRA court’s credibility
determinations and misinterpreting the evidentiary hearing testimony. Id. at 20-24.
The Commonwealth attacks the Superior Court’s application of the ineffective
assistance of counsel test, insisting that Rizor failed to establish any of the three prongs.
It argues the claim lacks arguable merit given that Rizor had a clear understanding of the
applicable law. She admitted that she knew that the mental health expert testimony was
not being introduced in her defense but she still did not want to plead guilty. Id. at 14-15.
The Commonwealth contends that trial counsel, faced with Rizor’s refusal to consider a
plea, took the only reasonable course and presented the best defense available. Id. at 15-
18.
With regard to prejudice, the Commonwealth recounts the standard enunciated in
Lafler v. Cooper, 566 U.S. at 156, 164 (2012), and applied by the Superior Court in
Commonwealth v. Steckley, 128 A.3d 826, 832 (Pa. Super. 2015). That standard requires
a showing that there is a reasonable probability that the defendant would have accepted
the plea offer, that the prosecution would not have withdrawn it due to intervening
circumstances, and that the court would have accepted its terms, resulting in a less
[J-35A-2023 and J-35B-2023]- 28
severe sentence. The Commonwealth interprets Rizor’s testimony at the PCRA hearing
as meaning that she would have accepted a plea deal only if there was no chance of
winning at trial. Commonwealth’s Brief at 18-19 (citing N.T., 6/8/2018, at 42). Further,
the Commonwealth recounts that the PCRA court determined that Rizor’s testimony at
the PCRA hearing was not credible, and that finding is binding on reviewing courts. Id.
at 19-20. In that respect, the Commonwealth draws attention to facts which the Superior
Court acknowledged but never reconciled with its conclusion that Rizor suffered
prejudice: namely, the PCRA court found Rizor’s testimony to be incredible; Rizor never
admitted guilt nor otherwise took responsibility for her actions; and Rizor’s testimony,
even if credible, was only that she would have accepted a plea if there was “zero chance
at trial.” Id. at 22-23. According to the Commonwealth, the Superior Court “overlooked
the facts of record that Rizor candidly did not want to plead guilty.” Id. at 22-23.
By contrast, Rizor insists that the Superior Court correctly concluded that she
established each of the three elements for her ineffective assistance of counsel claim,
and in so doing, she rehashes its mistaken recitation of the facts. Rizor’s Brief at 20. She
recites the Superior Court’s conclusion that the claim has arguable merit because, when
Rizor rejected the plea, “that decision was predicated upon the mistaken belief that her
attorney would be able to present a mental health defense.” Id. (quoting Rizor, 2021 WL
4704669, *3). Rizor also contends that the record shows that she rejected the plea offer
without an adequate understanding of a diminished capacity defense which is extremely
limited and only reduces first degree murder to third degree murder. Rizor’s Brief at 21,
24. According to Rizor, without an explanation, she did not understand that trial counsel’s
defense strategy of diminished capacity, if successful, would still result in a significant
[J-35A-2023 and J-35B-2023]- 29
sentence of imprisonment. Rizor’s Brief at 24-26.27 She maintains that counsel should
have explained to her that her best-case scenario could very likely result in a sentence
longer than that offered by the prosecution, and that pursuant to trial counsel’s mental
health defense strategy, there was no chance of an acquittal.
Rizor also maintains that there was no reasonable basis for trial counsel’s failure
to properly counsel her regarding the circumstances and to advise her to accept the plea
offer. Id. at 24. Rizor highlights the discussion in chambers in which trial counsel
demonstrated a lack of understanding about the effect of a successful mental health
defense. Id. at 24-26. Rizor posits that it is obvious that trial counsel could not have
explained the ramifications of the defense strategy when he did not understand them.
Rizor then insists that the prejudice was self-evident as the Superior Court found.
She claims that the Commonwealth is seeking to require certainty that she would have
taken the deal, whereas Lafler requires only “a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been different.”
Id. at 28 (quoting Lafler, 566 U.S. at 163). Rizor states that the “standard is appropriate
because nobody can state definitively what would have happened with effective
representation during plea negotiations.” Id. Rizor maintains that the Superior Court
correctly reviewed the record and found that the PCRA court’s conclusions were not
supported. Id. at 29-30.
As to the PCRA court’s credibility assessments, Rizor insists that the PCRA court
found her testimony incredible on only three points: (1) that she was uninformed at the
time she rejected the plea offer; (2) that she did not know that her mental health experts
were precluded; (3) and that she would not have rejected the plea offer had she known
27 Setting aside the other charges, a successful diminished capacity defense would lead
to exposure to a sentence of up to forty years of imprisonment for third degree murder.
See 18 Pa.C.S. § 1102(d).
[J-35A-2023 and J-35B-2023]- 30
that the experts were precluded. Id. at 32 (citing PCRA Court Opinion 6/8/2018, at 30).
Rizor states that nothing in the Superior Court’s opinion contradicts these findings, and
she believes that the Superior Court did not alter the PCRA court’s credibility
determinations. Id. In the alternative, she contends that even without her testimony, the
record demonstrates that trial counsel failed to provide effective representation. Id. at 33.
Rizor ultimately disentangles the facts, asserting that counsel provided deficient
advice in two ways. First, trial counsel failed to advise her regarding the plea that was
offered and rejected. Second, after she rejected the plea on the record and once the
mental health expert testimony was formally precluded, trial counsel failed her again.
According to Rizor, trial counsel
should have asked for a recess to advise [her] of the
implications of the ruling, and he did not. He could have
requested that the trial court conduct another colloquy given
the significance of the ruling. He did not. And of course, he
could have approached the Commonwealth about a new plea
offer in light of the ruling, but did not.
Rizor’s Brief at 31.
Analysis
We begin our analysis by addressing the standard applicable to claims that
counsel provided ineffective assistance in advising a defendant to reject a plea offer. This
is our Court’s first consideration of these principles, as we have not previously addressed
the two cases implicated by this issue, Lafler from the High Court and Steckley from the
Superior Court.
In Lafler, a defendant (Cooper), facing multiple charges arising out of a shooting,
rejected a plea offer pursuant to which the government would have dismissed two of the
charges and recommended a reduced sentence on the remaining two charges. Lafler,
56 U.S. at 161. Cooper rejected the offer based on his counsel’s mistaken advice that
the prosecution would be unable to establish intent to murder because the victim was
[J-35A-2023 and J-35B-2023]- 31
shot below the waist. Id. at 166. Cooper was convicted and subsequently sentenced to
a term of imprisonment three and a half times more severe than the term in the rejected
plea.
The Supreme Court first recounted that defendants have a Sixth Amendment right
to counsel “that extends to the plea-bargaining process.” Id. at 162. The Court then
addressed the two-prong Strickland28 test for ineffective assistance of counsel. Given
that the parties conceded that counsel’s advice was deficient, the Court did not explore
the first prong. Instead, its focus, like ours, was on prejudice. In that respect, the Court
explained that to establish prejudice, a defendant 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 164 (citing Strickland, 466 U.S. at 694). In the context of a
plea offer rejected by a defendant, the defendant “must show the outcome of the plea
process would have been different with competent advice.” Id. It considered a prior case
where, in evaluating a claim that ineffective assistance of counsel led to the improvident
acceptance of a guilty plea, the Court required the petitioner to show “that there is a
reasonable probability that, but for counsel’s errors, [the defendant] would not have
pleaded guilty and would have insisted on going to trial.” Id. (citing Hill v. Lockhart, 474
U.S. 52 (1985)). Then it explained:
In contrast to Hill, here the ineffective advice led not to an
offer’s acceptance but to its rejection. Having to stand trial, not
28 Whereas we apply a three-prong test to evaluate ineffective assistance of counsel
claims, Pierce, 527 A.2d at 975-76, the Sixth Amendment’s test is two-prong. Pursuant
to Strickland v. Washington, 466 U.S. 668, 687 (1984), “a convicted defendant’s claim
that counsel’s assistance was so defective as to require reversal of a conviction or death
sentence has two components.” First, a defendant must show that counsel’s performance
was deficient, i.e., “that counsel made errors so serious that counsel was not functioning
as the ‘counsel’ guaranteed by the Sixth Amendment.” Second, a defendant must show
that counsel’s deficient performance resulted in prejudice, i.e., that “counsel’s errors were
so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Id.[J-35A-2023 and J-35B-2023]- 32
choosing to waive it, is the prejudice alleged. In these
circumstances a defendant must show that but for the
ineffective advice of counsel there is a reasonable probability
that the plea offer would have been presented to the court
(i.e., that the defendant would have accepted the plea and the
prosecution would not have withdrawn it in light of intervening
circumstances), that the court would have accepted its terms,
and that the conviction or sentence, or both, under the offer’s
terms would have been less severe than under the judgment
and sentence that in fact were imposed.
Id. at 163-64. The Court relied on the Sixth Circuit Court of Appeals’ analysis of prejudice
in those circumstances. Id. at 174 (citing Cooper v. Lafler, 376 Fed. Appx. 563, 571-72
(6th Cir. 2010), vacated by Lafler, 566 U.S. at 175 (vacating and remanding for further
proceedings consistent with the corrected remedy)).29 The court cited Cooper’s
uncontradicted testimony that, had he been properly advised, he would have accepted
the plea offer. Cooper, 376 Fed. Appx. at 571. The court viewed that evidence as
sufficient to establish prejudice. Id. Also, the court noted that counsel had confirmed that
Cooper was open to pleading guilty, and it found that the significant disparity between the
plea offer and exposure after trial lent credence to the claim. Id. at 571-72. The court
rejected the Government’s arguments that Cooper’s other conduct – he indicated that he
sought an even better plea deal, and at one point denied committing the crime – meant
that Cooper would not have accepted the plea. Id. at 572. This analysis by the Sixth
Circuit Court of Appeals was cited by the High Court as the basis for establishing that
Cooper proved prejudice and that Cooper satisfied the Strickland standard for ineffective
assistance.
Building on the principles established in Lafler, in Steckley, our Superior Court
recounted Lafler’s application of Strickland’s prejudice prong. The Steckley court
thoughtfully applied each aspect of the relevant prejudice standard. There, the defendant
29 Notably, the Sixth Circuit was tasked with a de novo review of prejudice given that the
lower courts had not addressed it. Cooper, 376 Fed. Appx. at 573 n.4
[J-35A-2023 and J-35B-2023]- 33
(Steckley) was presented with two plea offers—one in which the Commonwealth would
recommend three to six years of imprisonment, then another where it would recommend
two to six years of imprisonment—but declined both because, in his words, it “didn’t make
sense” to him. Steckley, 128 A.3d at 830. He proceeded to trial where he was found
guilty of two counts of possession of child pornography. Id. at 829. Prior to sentencing,
the Commonwealth provided Steckley notice of its intent to seek imposition of a
mandatory minimum sentence of twenty-five years of imprisonment, and Steckley was
subsequently sentenced to two concurrent sentences of twenty-five years of
imprisonment. Id. Steckley filed a PCRA petition alleging that his attorney was ineffective
in failing to inform him of the potential for the twenty-five year mandatory sentence. Id. at
830. At a PCRA hearing, Steckley’s trial counsel testified that she had been unaware of
the twenty-five year mandatory minimum sentence, that she did not apprise Steckley of
the sentence, and that she would have advised him differently had she realized. Steckley
testified that, had he known about the mandatory minimum sentence, he would have
accepted the Commonwealth’s plea offer. Id. The PCRA court entered an order granting
the PCRA petition, vacating Steckley’s convictions and relisting the cases for trial.
Faced with cross-appeals, the Superior Court identified the discrete issues before
it: first, whether the PCRA court erred in concluding that Steckley proved prejudice to
support his ineffective assistance of counsel claims; and second, whether the PCRA court
erred in determining that the proper remedy was to vacate the conviction and grant a new
trial. Id. at 831.
The Superior Court focused on prejudice given that was the only prong challenged
by the Commonwealth. The court then recited the test from Lafler. Steckley, 128 A.3d
at 832 (citing Lafler, 132 S.Ct. at 1385). The court applied the Lafler test to the
circumstances under review, first reciting facts that supported the PCRA court’s finding
[J-35A-2023 and J-35B-2023]- 34
that Steckley would have accepted the plea: Steckley’s own testimony at the PCRA
hearing supported such a finding, and even if it was “self-serving,” it was not automatically
treated as “inherently deficient as a matter of law.” Id. at 832. Further, trial counsel’s
testimony that she would have strenuously encouraged Steckley to accept the plea offer
corroborated Steckley’s testimony. Id.
The court distinguished the circumstances from Foster v. United States, 735 F.3d
561, 566 (7th Cir. 2013), where prejudice was rejected. In Foster, the petitioner’s
testimony was deemed incredible, and trial counsel testified that, even once the petitioner
was more fully apprised of the circumstances of his sentencing exposure, the petitioner
reiterated his refusal to accept a guilty plea and stated that he wanted to go to trial even
if it meant he might be sentenced to life imprisonment. In contrast, in Steckley, the PCRA
court deemed Steckley’s testimony that he would have accepted a plea credible.
Steckley, 128 A.3d at 834.30
Next, the Superior Court rejected the Commonwealth’s arguments that Steckley
failed to prove that the Commonwealth would have extended the same offer. The
Commonwealth contended that a more diligent prosecutor would have discovered the
mandatory minimum and withdrawn the plea offer. The court disagreed, explaining that
the relevant inquiry is whether a reasonable probability exists that the Commonwealth
would have discovered the mandatory minimum and withdrawn the plea, which was
unlikely given that the Commonwealth only discovered the mandatory minimum seven
months after Steckley rejected the plea offer and proceeded to trial. Id. at 834. The court
30 The Superior Court acknowledged that Steckley had, during trial, maintained his
innocence. Although this is “a factor that the PCRA court may consider,” the factor was
not determinative. It was especially an unconvincing factor given that innocent
defendants may plead guilty, and an assertion of innocence does not necessarily belie a
claim that he would have plead guilty. Id. at 834.
[J-35A-2023 and J-35B-2023]- 35
then stated that it was just as likely that the Commonwealth would have used the threat
of the mandatory minimum to convince Steckley to accept the plea. Id. at 835.
Finally, the Superior Court rejected the Commonwealth’s argument that Steckley
failed to establish that the trial court would have accepted the guilty plea. Id. at 835. The
court acknowledged that a court may reject terms of a plea deal where it believes the
terms do not serve justice. Id. (citing Commonwealth v. White, 787 A.2d 1088, 1091 (Pa.
Super. 2001)). However, the arrangement at issue would not have involved dismissal of
charges or a negotiated sentence that would bind the trial court. Further, statements that
the trial court made at sentencing that even without the mandatory minimum, it would
have imposed the same sentence were unmoving given the statutory constraints at issue
in that case. Id. at 835. Instead, the available sentence, even if the court declined to
follow the Commonwealth’s recommendation per the plea, would have been significantly
shorter than the twenty-five year mandatory term of imprisonment. Id.31
Having reviewed the record before it in the light most favorable to Steckley against
each of the requirements from Lafler, the Superior Court concluded that the PCRA court
did not err in concluding that Steckley demonstrated a reasonable probability that, but for
the ineffective advice of counsel, he would have received a less severe sentence than
the one he received following trial. Id.32
31 The court explained that “a sentence of twenty-five to fifty years[ of] imprisonment
based on Steckley’s convictions would have constituted an illegal sentence unless the
mandatory sentence applied[,]” given that he was charged with two third degree felonies,
both of which were subject to a statutory maximum sentence of not more than seven
years. Steckley, 128 A.3d at 835 & n.4 (citing 11 Pa.C.S. § 1103). Even if the trial court
imposed the statutory maximum for each count and imposed the sentences
consecutively, Steckley’s aggregate sentence, without the mandatory minimum, would
have been seven to fourteen years. Id. at 835, n.4.
32As noted above, after concluding that the PCRA court did not err in granting Steckley’s
PCRA petition, the Superior Court addressed whether the appropriate remedy was to
vacate Steckley’s conviction and to order a new trial. Steckley, 128 A.3d at 836.
[J-35A-2023 and J-35B-2023]- 36
Steckley exemplifies the usefulness of Lafler’s analytic framework when courts
evaluate a claim that counsel was ineffective for advising a client to reject a plea offer. In
a complicated area of legal analysis,33 Lafler sets a thoughtful and clear standard. The
High Court in Lafler recounted that its test was consistent with that “adopted and applied
by [the Sixth Circuit and] other appellate courts without demonstrated difficulties or
systemic disruptions.” Lafler, 566 U.S. at 164 (collecting cases). The Superior Court has
also repeatedly applied the test, in reliance of Steckley and Lafler. See, e.g.,
Commonwealth v. Kruge, 2021 WL 653086, *4-*5 (Pa. Super. 2021) (non-precedential
decision) (affirming PCRA court’s grant of relief where counsel failed to advise defendant
regarding a mandatory sentencing enhancement); Commonwealth v. Irvin, 2020 WL
1951688, *4 (Pa. Super. 2020) (non-precedential decision) (affirming PCRA court’s denial
of relief where PCRA court credited trial counsel’s testimony that he thoroughly advised
his client regarding the circumstances of the plea offer and likelihood of success at trial
and that client’s mind was “pretty made up as to trial”).
By contrast, the Superior Court in this case summarily concluded that prejudice
was “self-evident” because, had counsel provided advice to accept the plea, and had
Rizor accepted the plea, she would have received a significantly better sentence. Rizor,
2017 WL 2482941 at *5.34 However, this construction of prejudice lacks structure, and,
as illustrated in this case, it relieves a petitioner of her burden to prove that there is a
reasonable probability that the result would have been different. The Superior Court’s
opinion failed to adhere to these established legal principles. Its cursory consideration of
33 Missouri v. Frye, 566 U.S. 134, 154 (2012) (Scalia, J., dissenting) (criticizing the test
for requiring “retrospective crystal-ball gazing posing as legal analysis”).
34 Indeed, even the Commonwealth acknowledges that the circumstances – where the
mental health evidence was not coming in for the defense and where Rizor was offered
an objectively sweet plea deal – “undoubtedly beg the question why Rizor would proceed
to trial.” Commonwealth’s Brief at 16.
[J-35A-2023 and J-35B-2023]- 37
prejudice, though viscerally compelling, is not a legally sound analysis. Its error was
compounded by its conflation of the facts, as well as its failure to acknowledge and
consider the credibility findings of the PCRA court under the applicable standard.
In an attempt to disentangle the conflated facts, we address prejudice first with
regard to whether Rizor established that trial counsel provided faulty advice to reject the
plea, and second, with regard to whether Rizor established that trial counsel provided
inadequate advice regarding preclusion of the mental health evidence.
Although the parties acknowledge the standard for prejudice set out in Lafler,
neither analyzes its constituent parts. A step-by-step application of that standard leads
to the obvious conclusion that Rizor failed to prove prejudice. The first question is whether
Rizor established that, but for the advice of trial counsel, there is a reasonable probability
that she would have accepted the plea and that the prosecution would not have withdrawn
it in light of intervening circumstances. At the moment at which the plea offer was
presented to the trial court during the colloquy, the Commonwealth was clearly extending
and standing by its offer. Therefore, the second part of the inquiry, that the prosecution
would not have withdrawn the offer, is easily met.
However, the reasonable probability that Rizor would have accepted the plea deal
if she had been adequately advised is not established on this record. We observe that in
Rizor’s PCRA petition, she did not allege that absent counsel’s deficient advice, she
would have taken the plea offer; she did not state that she intended to testify to that effect
at an evidentiary hearing; and her proffered witness list attached to her PCRA petition
does not point to another witness to testify to that effect. On remand from the Superior
Court, given the opportunity to establish prejudice, Rizor testified regarding her decision
to reject the plea. In sum, her testimony gives the impression that she was inclined to go
to trial, not that in hindsight she would have accepted the plea offer. She recounted that
[J-35A-2023 and J-35B-2023]- 38
she asked trial counsel about their chances at trial and, as she testified, “I told him that if
there was a chance [of winning at trial], that I did want to take it to trial.” N.T., 6/8/2018,
at 37-38. On cross-examination, she acknowledged that “[t]here is always that chance”
of being found not guilty and she was hoping for that chance. Id. at 54. Rizor’s only
testimony suggesting that she was open to a plea deal was when she said, “If I had no
chance, I would have taken the plea offer.” Id. at 42. Rizor and the Commonwealth
dispute the meaning of that statement—it could be evidence that Rizor was open to a
plea deal or evidence that Rizor would take a plea deal only with zero chance of acquittal.
We are constrained by a standard which requires us to review the statement in the light
most favorable to the Commonwealth who prevailed in the PCRA court. Rizor thus
testified that she would only take a plea offer if there was no chance of acquittal.
We reiterate that trial counsel still was pursuing the mental health defense strategy
at the time Rizor rejected the plea deal. Though Rizor now focuses on the implications
of the precluded diminished capacity defense, the record shows that trial counsel was
also attempting to use the mental health evidence to prove manslaughter. N.T., 3/4/2008,
at 45-46. Rizor had a colorable defense at that time, and there existed a chance of
success at trial. Her decision to reject the plea deal and the Commonwealth’s decision
to offer it occurred when the defense strategy was not yet foreclosed. Therefore, her
decision was not, contrary to Rizor’s argument, “predicated upon the mistaken belief that
she would be able to present a mental health defense.” Rizor’s Brief at 20 (quoting Rizor,
2021 WL 4704779, at *3) (emphasis added). Plea deals are negotiated in the context of
unknown circumstances, and presumably calculated based on the Commonwealth’s risk
assessment, an assessment that would dramatically change upon the preclusion of the
main defense strategy.
[J-35A-2023 and J-35B-2023]- 39
Further, we recall that when reviewing a credibility determination by the PCRA
court, this Court is bound by the court’s credibility determinations, unless those
determinations are not supported by the record. Commonwealth v. Flor, 259 A.3d 891,
902 (Pa. 2021). The credibility determinations are to be provided “great deference[,]” and
indeed, they are “one of the primary reasons PCRA hearings are held in the first place[.]”
Id. at 910-911 (citing Commonwealth v. Johnson, 966 A.2d 523, 539 (Pa. 2009)).
Moreover, we must conduct our review in the light most favorable to the prevailing party,
in this instance, the Commonwealth. Commonwealth v. Mason, 130 A.3d 601, 617 (Pa.
2015). Given that the PCRA court, as fact-finder, has the opportunity to listen to
witnesses, to observe their demeanor and attitude, we have stated that “there is no
justification for an appellate court, relying solely upon a cold record, to review the fact-
finder’s first-hand credibility determinations.” Commonwealth v. White, 734 A.2d 374, 381
(Pa. 1999).
As described above, the PCRA court issued a contrary credibility determination. It
emphasized that Rizor’s allegations regarding counsel’s advice—that he failed to review
the plea with her but also advised her that she “would never set foot on state grounds”—
were contradictory. PCRA Court Opinion, 1/6/2020, at 11. The PCRA court also stated
that it “did not find credible [Rizor’s] claim[] … that she would not have rejected the
Commonwealth’s plea offer had she known the defense mental health experts would not
be permitted to testify.” Id. at 22. Stated in the context of the question here, the PCRA
court disbelieved Rizor that she would have accepted the plea offer even assuming that
the mental health defense was unavailable. Thus, even assuming that the mental health
defense was unavailable,35 the PCRA court did not find credible Rizor’s allegations that
35 The PCRA court noted other parts of the record that it viewed as corroborating its
conclusion. The PCRA court recounted Rizor’s testimony that once she was aware that
the mental health reports would not be introduced on her behalf, she did not express a
(continued…)
[J-35A-2023 and J-35B-2023]- 40
she would have accepted the plea deal. The PCRA court’s credibility determination is
binding.
Though Rizor asserts that the Superior Court’s reasoning does not contradict the
PCRA court’s findings, this is only true because the Superior Court did not apply the Lafler
standard or address Rizor’s testimony from the evidentiary hearing. In concluding that
prejudice was “self-evident,” the Superior Court and Rizor overlooked the burden of proof
required of a PCRA petitioner. The standard requires some degree of crystal ball gazing
and proof that there exists a reasonable probability that the petitioner would have
accepted a plea deal. However Rizor provides virtually no argument to demonstrate that
she proved that there is a reasonable probability that she would have accepted the plea
deal. In essence, her argument boils down to a reasonable person standard: “Given the
strengths of the Commonwealth’s case and trial counsel’s lack of any cognizable defense,
it is apparent from the record alone that if [Rizor] understood the enormity of her decision,
she probably would have made a different one.” Rizor’s Brief at 29. She ignores that
Lafler does not establish an entirely objective reasonable person standard. Instead,
reviewing courts are to look to the specific facts and circumstances of the defendant. 36
desire to revisit her plea or inquire whether the plea offer was still available. PCRA Court
Opinion, 1/6/2020, at 22-23 (citing N.T., 6/18/2020, at 69-70). The PCRA court
highlighted that Rizor’s only suggestion that she would have taken the plea offer was in
response to counsel’s question: “[I]f [trial counsel] had told you, we have no chance of
winning, how would that have affected your decision?” and Rizor stated, “If I had no
chance, I would have taken the plea offer.” Id. (citing N.T., 6/8/2018, at 42). The PCRA
court interpreted this as an admission that “she would have considered accepting the plea
offer only if she had ‘no chance.’” Id. (emphasis added). The PCRA court also referred
to the colloquy with the trial court in conjunction with the plea rejection in which Rizor
acknowledged that she had discussed her defenses with her attorney and stated that she
was satisfied with her representation. Id.
36 In Lafler, Cooper testified credibly that he would have accepted the deal, and trial
counsel testified that Cooper was open to pleading guilty. Lafler, 474 U.S. at 174 (citing
Cooper, 376 Fed. Appx. at 571-72). There was testimony that Steckley only rejected the
plea offers because the offers did not make sense to him; he testified credibly that he
(continued…)
[J-35A-2023 and J-35B-2023]- 41
See, e.g., Lafler, 474 U.S. at 164 (citing United States v. Gordon, 156 F.3d 376, 381 (2d
Cir. 1998) (reasoning that a disparity between the sentence received and the potential
sentence for a plea “provides sufficient objective evidence—when combined with a
petitioner’s statement concerning his intentions—to support a finding of prejudice”)).
Further, Rizor does not cite any authority where a petitioner establishes that there
exists a reasonable probability that she would have accepted a plea deal but for counsel’s
deficient advice absent credible testimony from the petitioner to that effect. Though we
do not doubt that this feat is possible, the PCRA court here also identified evidence
corroborating that there was not a reasonable probability that Rizor would have accepted
the plea offer such as that Rizor told counsel if there was a chance of winning at trial, she
wanted to go to trial. Aside from her single statement at the PCRA evidentiary hearing
that she would have accepted a plea offer if she had “no chance[,]” Rizor presented no
specific evidence that she would have taken the deal. We acknowledge that this standard
does not necessarily require the testimony of a PCRA petitioner, or any direct testimony.
It may be that circumstantial evidence proves that there is a reasonable probability that
the petitioner would have accepted the plea deal but for counsel’s deficient advice.
Nonetheless, on this record, viewed in the light most favorable to the Commonwealth, the
PCRA court did not err in concluding that Rizor failed to establish prejudice, and therefore,
it did not err in denying PCRA relief.37
would have accepted the deal if advised about the mandatory minimum. Steckley, 128
A.3d at 830.
37 The dissent would reach the opposite result, apparently based on Rizor’s decision to
litigate the PCRA petition and present this claim. Dissenting Op. at 3. Rather than
focusing on how Rizor established prejudice—the main issue in this case—the dissent
describes in detail the errors of trial counsel’s judgment and advice. We agree with many
of the dissent’s concerns that trial counsel’s strategy appears to have been scattershot
and flimsy. Id. at 5. However, those concerns do not speak to prejudice. Filing a PCRA
petition and presenting a claim has never been sufficient to establish prejudice and the
(continued…)
[J-35A-2023 and J-35B-2023]- 42
Finally, we address Rizor’s assertion that trial counsel provided ineffective
assistance when he failed to explain to her the significance of the trial court’s ruling
precluding the mental health evidence and when he failed to approach the
Commonwealth about a new plea offer. Rule 1925(b) Statement, 3/17/2020, ¶ 4. The
PCRA court purported to address this claim together with the claim regarding bad plea
advice, overlooking that the latter claim could not contemplate the preclusion of the
mental health evidence and the former claim could not contemplate the plea previously
offered and rejected. Ultimately, the PCRA court’s conclusion regarding prejudice is
correct as to either claim. Rizor does not articulate what prejudice she suffered as a result
of this alleged ineffective assistance. Given that the preclusion order virtually eviscerated
her defense, we will not assume that the prosecution would not have withdrawn its prior
plea offer as a result of that ruling. Indeed, Rizor’s argument is that trial counsel should
“have approached the Commonwealth about a new plea offer in light of the ruling, but did
not.” Rizor’s Brief at 31. Rizor has not cited any legal authority to establish that this
general averment of prejudice is adequate, nor has she cited any cases establishing
prejudice in analogous circumstances. In sum, she has not developed an argument in
this respect. Moreover, the trial court found incredible Rizor’s testimony that she would
have accepted the plea offer had she known about the preclusion of the mental health
evidence. For the reasons stated above, this Court is bound by the PCRA court’s
credibility determination. Again, we conclude that on this record, viewed in the light most
favorable to the Commonwealth, the PCRA court did not err in concluding that Rizor failed
to establish prejudice and therefore, it did not err in denying PCRA relief.
We therefore vacate the Superior Court’s judgment granting relief and remand for
that court to address the outstanding issues raised by Rizor in her Pa.R.A.P. 1925(b)
dissent does not identify any other evidence Rizor presented to demonstrate that she
would have taken the plea deal.
[J-35A-2023 and J-35B-2023]- 43
statement and Superior Court brief to the extent that they remain unresolved in light of
our decision.
Chief Justice Todd and Justices Dougherty, Mundy and Brobson join the opinion.
Justice Wecht files a dissenting opinion.
[J-35A-2023 and J-35B-2023]- 44