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

[J-35A-2023 and J-35B-2023] [MO: Donohue, J.]
IN THE SUPREME COURT OF PENNSYLVANIA
WESTERN DISTRICT
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
DISSENTING OPINION
JUSTICE WECHT DECIDED: NOVEMBER 22, 2023
This is a strange case. The interesting question here was one of remedy—whether
counsel’s ineffectiveness in advising a criminal defendant to reject a plea offer requires
specific performance of that rejected plea offer, rather than merely a grant of a new trial.1
Because the Majority concludes that Jessica Rizor is entitled to no remedy at all for her
counsel’s deficient advice, the nature of that remedy is now immaterial. We are left with
an exercise in error correction of an intermediate court’s nonprecedential decision on a
unique and highly specific set of facts, which is not a matter that generally satisfies this
Court’s review standards under the Rules of Appellate Procedure.2 Fortunately, the
unusual facts of this case make it unlikely to be of much precedential value.
Setting aside prudential concerns, the Majority’s analysis is unconvincing. In broad
strokes, the facts of this case established a callous infanticide, of which the
Commonwealth’s evidence was strong. The extensive evidence demonstrating that Rizor
killed her newborn baby and disposed of the child in a garbage bag was not likely to win
her much sympathy among jurors, to say the least. The Commonwealth offered her an
objectively favorable plea deal, with a minimum sentence well below anything that she
could have hoped to receive pursuing her counsel’s questionable mental health theories.
Yet, she rejected this offer on her counsel’s advice, based upon his wildly unprofessional
guarantees that he would assure her acquittal and that she would “never set foot on state
[prison] grounds.”3
The Majority concludes that Rizor failed to demonstrate prejudice—that the result
would have been different but for her counsel’s ineffectiveness. This, according to the
1 The suggestion that the remedy for such ineffectiveness is acceptance of the
original, rejected plea offer derives from the Supreme Court of the United States’ decision
in Lafler v. Cooper, 566 U.S. 156 (2012), and our Superior Court’s decision in
Commonwealth v. Steckley, 128 A.3d 826 (Pa. Super. 2012). This is a question of first
impression in this Court. I note, however, that I authored the opinion in Steckley while
serving as a Judge on the Superior Court.
2 See Pa.R.A.P. 1114.
3 Notes of Testimony, PCRA Hearing, 6/8/2018 (“N.T. PCRA”), at 37.
[J-35A-2023 and J-35B-2023] [MO: Donohue, J.] - 2
Majority, is because Rizor purportedly did not testify that, but for her counsel’s
constitutionally deficient advice, she would have accepted the Commonwealth’s plea
offer. The Majority bases this conclusion upon a hyper-literal reading of several
conditional statements that Rizor made at the evidentiary hearing: that she told her
counsel that she wished to proceed to trial “if there was a chance” of winning, and that
she would have accepted the plea offer if she “had no chance” at trial. 4 The Majority
strips these statements of their context and concludes that Rizor’s testimony meant that
she would have accepted the plea offer only if there was literally a zero percent chance
of acquittal. But Rizor admitted on cross-examination that there “is always that chance”
of acquittal.5
Reading these isolated statements in their strictest sense leads to an absurdity.
The Majority concludes that Rizor’s testimony meant that “she would only take a plea offer
if there was no chance of acquittal,” even though there is always a chance of acquittal. 6
Translation: there was no circumstance in which Rizor would have accepted the plea.
Thus, her PCRA petition alleging that her counsel provided ineffective assistance with
regard to the plea offer was, seemingly, a pointless exercise.
Rizor presumably did not litigate this PCRA petition merely to amuse herself. One
would assume that she sought meaningful post-conviction relief, rather than merely
seeking to prove a point that her counsel was ineffective in the abstract, in a way that did
not matter to anything. But if the Majority’s reading of her testimony is correct, then one
is left to wonder why Rizor would even bother. The Majority seems to acknowledge the
absurdity of its reading, given that it states that it feels “constrained” to adopt it by the
4 Maj. Op. at 39; N.T. PCRA at 38, 42.
5 Maj. Op. at 39; N.T. PCRA at 54.
6 Maj. Op. at 39.
[J-35A-2023 and J-35B-2023] [MO: Donohue, J.] - 3
standard of review.7 But, from my perspective, viewing the evidence in the light most
favorable to the Commonwealth does not require us to read Rizor’s testimony as
nonsense when there is another, more sensible understanding of what she said.
In context, Rizor did not testify that she rejected the plea offer based upon her
independent assessment of her “chance” at trial. She testified that her counsel, Attorney
Robert Brady, advised her to reject the offer:
[Rizor’s Counsel]: Can you take us through what plea offers, if any, there
were, how long they were and what your discussions were with Mr. Brady
about them?
[Rizor]: The first plea offer, I believe, was seven to thirty years. Whenever
that was brought to me, Mr. Brady told me it was a ridiculous offer and I
should not take it. Later, there was a second plea offer of five and a half to
thirty and he told me that I would never set foot on state grounds. . . . That
he didn’t believe I should take that.8
Rizor was facing the significant possibility of a conviction for first-degree murder
and a sentence of life imprisonment without the possibility of parole (which is, of course,
what actually happened). Yet, Attorney Brady advised Rizor that an offer of seven to
thirty years was “ridiculous” and that she should reject the even more favorable offer of
five-and-one-half to thirty years based upon an unsupportable guarantee of acquittal, or
maybe a conviction of a lesser crime. As the Commonwealth asked her on cross-
examination:
[Commonwealth]: You wanted to take the chance on Mr. Brady’s skills at
trial to get that lesser sentence, to get no more than five and a half years
apparently; correct?
[Rizor]: Because he told me that that’s what he could do.
[Commonwealth]: He was convinced he could win it; correct?
7 Id.8 N.T. PCRA at 37.
[J-35A-2023 and J-35B-2023] [MO: Donohue, J.] - 4
[Rizor]: Yes.9
Attorney Brady’s confidence was grounded in a purported mental health defense.
He believed that he could establish that, at the time that Rizor killed her baby, she was
suffering from a mental condition that would support a diminished capacity defense, and
that perhaps could reduce murder to voluntary or involuntary manslaughter. Although the
trial court ultimately precluded Rizor’s mental health evidence because it failed to
establish the requisites of any viable defense, the trial court had not made this ruling at
the time that Rizor rejected the Commonwealth’s plea offer. The Majority makes much
of this fact. It asserts that “Rizor had a colorable defense” when she rejected the plea
offer, and the subsequent preclusion of that defense, thus, could not have impacted her
earlier decision.10 The Majority’s timeline is accurate, but it overlooks what the effect of
the defense would have been, even if the trial court had not precluded it and the jury
somehow accepted it.
As the Majority develops, even if Attorney Brady could have proven a diminished
capacity defense, this would only reduce first-degree murder to third-degree murder.11
Third-degree murder carries a maximum sentence of forty years’ imprisonment.12 It is
doubtful whether Attorney Brady fully understood the likely result of the defense that he
proffered. His explanations for why the trial court should admit his proposed mental health
evidence were scattershot:
The Court: What is the challenge to the murder charge? It’s not an insanity
defense.
9 N.T. PCRA at 55.
10 Maj. Op. at 39.
11 See id. at 4 n.7; Commonwealth v. Hutchinson, 25 A.3d 277, 312 (Pa. 2011).
12 18 Pa.C.S. § 1102(d).
[J-35A-2023 and J-35B-2023] [MO: Donohue, J.] - 5
Mr. Brady: Certainly there is an element of an insanity defense. When we
deal with diminished capacity we’re dealing with an insanity charge and
there is an element of it and you can’t forego it. However, [Rizor] claims
she’s not guilty by reason of insanity. We do not have that standard; we do
not have a medical doctor who made that statement. To negate diminished
capacity as a result of mental illness—I’m sure we’re going to argue and get
into that as far as how I’m going to defend this. I have a lot of ideas, Judge,
and I’m going to respond to the evidence as the evidence is submitted
through the government’s case in chief.13
Attorney Brady seemed to suggest that he was offering an insanity defense, yet
acknowledged that he had no evidence to support it. He further suggested diminished
capacity, but did not make clear how he planned to establish that defense either. He had
“a lot of ideas,” which he suggested he might flesh out “as the evidence is submitted
through the government’s case in chief”—i.e., he would figure it out as he went, during
the trial itself. The Commonwealth was quick to point out that the medical testimony that
Attorney Brady had proffered failed to establish an essential element of diminished
capacity—that Rizor’s alleged mental condition prevented her from forming a specific
intent to kill:
[Commonwealth]: I don’t know where we are at because we have never
received a written notice of an insanity defense. None of their reports meets
the M’Naghten standard.[14] None of their reports meet the standard of guilty
but mentally ill, which is only available when there is an insanity defense at
trial. A diminished capacity defense is an extremely limited defense. It does
not take third degree to voluntary manslaughter. It takes first degree murder
to third degree murder and it requires extensive psychiatric testimony
establishing a defendant suffered from one or more mental disorders which
prevented him or her from formulating the specific intent to kill. We do not
13 Notes of Testimony, Trial, 3/3/2008 (“N.T. Trial”), at 21-22.
14 The M’Naghten test is the classic common-law standard for establishing “insanity”
as a defense to criminal prosecution, and it is codified in Pennsylvania law. See 18
Pa.C.S. § 315(b) (“[T]he phrase ‘legally insane’ means that, at the time of the commission
of the offense, the actor was laboring under such a defect of reason, from disease of the
mind, as not to know the nature and quality of the act he was doing or, if the actor did
know the quality of the act, that he did not know that what he was doing was wrong.”).
[J-35A-2023 and J-35B-2023] [MO: Donohue, J.] - 6
have a single psychiatric report purporting to provide that opinion in this
case.15
Attorney Brady responded, again conceding that he could not satisfy the legal
definition of insanity, but suggesting that his purported diminished capacity defense could
possibly lead to a conviction of voluntary or involuntary manslaughter, rather than murder:
Mr. Brady: The Commonwealth is suggesting that we are not allowed as
the defense to introduce evidence of a mental infirmity which would impact
on [Rizor’s] ability to perceive events in a manner in which she can respond
to events because we do not have an expert who can reach or would state
that she reaches the standard under M’Naghten. I think the suggestion [the
Commonwealth] has just made [that] a diminished capacity defense or any
mental infirmity defense as to that person’s state of mind and ability to
perceive events and response in formulating a specific intent that would be
necessary for a conviction even under a voluntary manslaughter can only
be done in the event I have a doctor who is willing to come in and say that
they have not reached the M’Naghten Rule for insanity, but the jury decides
not to accept it. That, I disagree with.16
Attorney Brady further explained his belief that his purported diminished capacity defense
could support a manslaughter conviction:
Mr. Brady: It’s a state of mind that would compel one to be able to formulate
malice. It would be a state of mind that could negate a premeditation, which
the accusation is. It is a state of mind that would have to be given to the
jury for them to be able to appraise either a gross negligence or
recklessness standard in order to find or not find involuntary manslaughter
or voluntary manslaughter as a defense as well as under M’Naghten if we
have evidence to that effect. If I have evidence from a doctor stating that
she could not formulate an intent to kill because of her mental illness, if I
had the M’Naghten rule, I would certainly have it here.17
15 N.T. Trial at 23.
16 Id. at 24-25.
17 Id. at 28.
[J-35A-2023 and J-35B-2023] [MO: Donohue, J.] - 7
The trial court asked Attorney Brady to clarify his position, being unaware of any
precedent suggesting that a diminished capacity defense can reduce a murder charge to
manslaughter rather than third-degree murder:
The Court: Is there case law that says state of mind takes you to
manslaughter other than provocation or heat of passion?18
Attorney Brady cited no such case law, but instead reiterated his position that evidence
of Rizor’s mental health was relevant to establishing the mens rea for a manslaughter
conviction:
Mr. Brady: It is the provocation and heat of passion. I’m certainly not
suggesting that the baby provoked her into this. That standard is quite
separate. Just look at your charge. What you see right after that it’s talking
about provocation and then it’s going into heat of passion. In heat of
passion it’s the Defendant’s perception of the stimuli at the time of the event
and how she would respond. We are asking the jury to examine her mind,
not the reasonable mind standard. For that we can introduce our testimony
and our evidence from our physicians as to what her state of mind would or
could be based on this mental illness that she does in fact have.19
Attorney Brady’s theory was difficult to follow. What is clear is that he believed
that his proffered evidence would establish diminished capacity, and that could lead the
jury to find Rizor guilty of voluntary or involuntary manslaughter rather than first-degree
murder. But there were multiple problems with this theory from the beginning. As the
Commonwealth stressed, the reports that Attorney Brady produced from his proposed
medical experts did not even include an averment that Rizor’s alleged mental condition
precluded her from forming a specific intent to kill—an essential element of a diminished
capacity defense. Furthermore, and more importantly, Attorney Brady seemed either not
18 Id. at 29.
19 Id.
[J-35A-2023 and J-35B-2023] [MO: Donohue, J.] - 8
to understand—or he refused to concede—that a diminished capacity defense reduces
first-degree murder to third-degree murder, not manslaughter.
Attorney Brady’s mental health defense was flimsy from the outset. And even if
established, that defense would have put his client in prison for upwards of forty years. If
Attorney Brady had properly understood this, it would have been remarkably foolish to
advise Rizor to reject the highly favorable plea offer of five-and-one-half to thirty years’
imprisonment. One could argue that there was still an outside chance that the jury could
have returned a voluntary or involuntary manslaughter conviction, but Attorney Brady’s
asserted diminished capacity defense would not have achieved that result, and relying
upon the jury to reach that outcome anyway was a gamble on extremely long odds.
Regardless, involuntary and voluntary manslaughter convictions carry maximum prison
terms of ten and twenty years, respectively.20 Although the plea offer at issue had a
longer maximum term, it is hard to imagine that Rizor would have received a much more
favorable minimum term, even in the highly unlikely scenario that she was convicted of
manslaughter rather than murder. In any event, the sentences that those convictions
carry in no way warranted Attorney Brady’s assurances to Rizor that she would “never
set foot” in state prison or the like. It appears that Attorney Brady simply did not
understand the legal consequences of his position. Whatever merit that he saw in the
supposed diminished capacity defense, he should have known that, even if the jury
accepted it, his defense strategy was exceedingly unlikely to result in an acquittal, or even
20 See Maj. Op. at 4 n.8; 18 Pa.C.S. §§ 2503(c), 2504(b), 1103(1)-(2). Although
involuntary manslaughter is generally a first-degree misdemeanor, where, as here, the
victim is under twelve years old and in the care, custody, or control of the defendant, the
crime is classified as a second-degree felony. 18 Pa.C.S. § 2504(b).
[J-35A-2023 and J-35B-2023] [MO: Donohue, J.] - 9
conviction of any lesser charge that would result in a sentence more favorable than that
contained in the plea offer.21
We do not have testimony about what Attorney Brady was thinking, for another
reason that makes this case strange. At evidentiary hearings concerning counsel’s
ineffectiveness, the court ordinarily hears testimony from counsel, who explains his or her
rationale for the decisions that the petitioner is challenging. Attorney Brady was not
present for these proceedings. Evidently, Rizor’s was one of the last cases that he
accepted before retiring from the practice of law and leaving the country. Although he
21 For this reason, I do not share the Majority’s view that the PCRA court’s credibility
determination is fatal to Rizor’s claim. See Maj. Op. at 40-41. The PCRA court focused
upon the potential availability of Rizor’s mental health defenses at the time that she
rejected the plea, and thus “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.” PCRA Ct. Op., 6/29/2020, at 30. In my view, even if the defense
experts had been permitted to testify, Attorney Brady’s earlier advice to reject the plea
offer was still deficient due to his apparent misunderstanding of the legal effect of a
diminished capacity defense. Furthermore, I note that the PCRA court stressed that, once
it became clear that her “defense” would be unavailable, Rizor apparently “expressed no
desire to revisit the plea offer or to inquire whether the plea offer was still available.” Id.
at 31. In fact, Rizor testified on cross-examination:
[Commonwealth]: You’re telling us the only reason you went to trial was
because [Attorney Brady] told you he thought he could beat it.
[Rizor]: Yes.
[Commonwealth]: And then you learned at some point shortly thereafter,
according to you, that the mental health evidence wasn’t going to come in?
[Rizor]: Correct.
[Commonwealth]: And your thoughts were that that isn’t going to help your
case; correct?
[Rizor]: Right.
[Commonwealth]: At that point, did you try to negotiate a plea at all?
[Rizor]: Mr. Brady told me that wasn’t possible.
N.T. PCRA at 62 (emphasis added).
[J-35A-2023 and J-35B-2023] [MO: Donohue, J.] - 10
had spoken to one of Rizor’s post-conviction attorneys, and had allegedly conceded his
ineffectiveness in Rizor’s case, he ultimately told Rizor’s current counsel that he would
not testify at an evidentiary hearing and that he did not wish to communicate further about
the matter, citing his own mental health concerns.22 Rizor’s current counsel sought to
have Attorney Brady declared “unavailable” and thus to introduce hearsay evidence of
Attorney Brady’s statements about his deficient performance, but the PCRA court
declined the request. Thus, we are left to wonder how Attorney Brady could possibly
have believed that his advice to Rizor was prudent.
I cannot agree with the Majority that, at the time that Rizor rejected the
Commonwealth’s plea offer, she had a “colorable defense,” that she therefore reached a
reasoned conclusion that she had a sufficient “chance” of acquittal, and—because even
the slimmest chance apparently would do—that there was no circumstance in which she
would have accepted this fantastic plea offer.23 As I read her testimony, Rizor rejected
the plea offer because Attorney Brady told her to. And he advised her in this manner
22 Refusing to cooperate with the efforts of Rizor’s current counsel to procure his
testimony, Attorney Brady sent counsel a Facebook message stating:
I wish you good luck in your endeavors, unfortunately I doubt I will be able
to assist you. There is a reason that I retired. I am now totally and
permanently disabled. Mine is a mental disability. I have almost no short
term memory. When I retired I was afraid it was dementia. It’s not but
nonetheless I have very little recollection.
I am not willing to put myself in a position where my very competency to
testify would be at issue. I hope you understand. It is one of the main
reasons I moved away. Honestly Josh I don’t believe I can help you, I simply
don’t remember.
Good luck.
See Rizor’s Omnibus Pre-Hearing Motion, 10/19/2017, Exhibit A; Reproduced Record at
883a.
23 Maj. Op. at 39.
[J-35A-2023 and J-35B-2023] [MO: Donohue, J.] - 11
based upon bravado and an apparent misunderstanding of his own defense strategy and
its possible outcomes. Had Attorney Brady given Rizor competent advice based upon a
realistic assessment of the circumstances and the likely results, there is every reason to
believe that Rizor would have accepted the plea offer.24 There was no reason for her to
litigate this claim otherwise.
If Rizor’s claim must fail because she did not utter the magic words that would
allow her to cross the finish line, then it is likely that she was let down not only by Attorney
Brady, but also by her post-conviction counsel.25 Perhaps that is one lesson that gives
today’s decision some value. Counsel, take heed: this Court will read your client’s
testimony narrowly to the point of absurdity, so ensure that your demonstration of
prejudice is so unmistakable that no one could possibly read the transcript otherwise.
Jessica Rizor is in prison for the rest of her life when she could already be on
parole right now if her attorney had given her informed and competent advice. I cannot
agree that this is effective assistance of counsel.
I respectfully dissent.
24 The Majority denies Rizor relief because she purportedly presented “no specific
evidence that she would have taken the deal.” Maj. Op. at 42. Yet, it acknowledges that
the assessment of prejudice “does not necessarily require the testimony of a PCRA
petitioner, or any direct testimony,” and 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.” Id. Despite this caveat, it appears that the
Majority would require precisely the “direct testimony” that it says it not required.
25 Indeed, one of the instances in which Rizor explained her decision in terms of her
“chance” at trial—a word upon which the Majority places great weight—was simply her
repetition of the phrasing that her counsel used when asking her the question:
[Rizor’s Counsel]: Now, if Mr. Brady had told you, we have no chance of
winning, how would that have affected your decision?
[Rizor]: If I had no chance, I would have taken the plea offer.
N.T. PCRA at 42 (emphasis added).
[J-35A-2023 and J-35B-2023] [MO: Donohue, J.] - 12