Com. v. Watts, J. ( 2015 )

J-S49025-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JOHN GEORGE WATTS
Appellant No. 3157 EDA 2013
Appeal from the Order October 18, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0009464-2007
CP-51-CR-0010470-2007
BEFORE: OLSON, J., OTT, J., and STABILE, J.
MEMORANDUM BY OTT, J.: FILED MARCH 04, 2015
John George Watts appeals, nunc pro tunc, from the order entered on
October 18, 2013, in the Court of Common Pleas of Philadelphia County,
denying him relief on his petition filed pursuant to the Post Conviction Relief
Act (PCRA), 42 Pa.C.S. § 9541 et seq. Watts raises three issues in this
appeal: (1) did the PCRA court display a fixed bias against Watts, thereby
precluding the possibility of a fair and non-prejudicial decision on the merits,
(2) did the PCRA err in finding Watts’ decision to reject a negotiated plea
was knowing, voluntary and intelligent when trial counsel failed to properly
inform Watts of his potential sentence, and (3) did the PCRA court err in
finding trial counsel was not ineffective for failing to inform Watts of his
potential sentence. After a thorough review of the submissions by the
parties, relevant law, and the certified record, we affirm.
J-S49025-14
Before we address the substance of this appeal, we make note of the
relevant procedural history of this matter. Watts was charged with robbery,
criminal conspiracy, terroristic threats, intimidation of a witness and criminal
use of a communication facility. The Commonwealth offered Watts a
negotiated plea that included a 7 - 20 year term of incarceration. Watts
rejected the offer and proceeded to a jury trial. He was convicted and
sentenced to 24½ to 50 years and two months’ incarceration. His direct
appeal afforded him no relief. See Commonwealth v. Watts, 998 A.2d
1017 (Pa. Super. 2010) (unpublished memorandum), appeal denied, 17
A.3d 1254 (Pa. 2011) (table). He filed the instant PCRA petition raising the
issues of trial counsel’s ineffectiveness regarding the alleged failure to inform
him of his potential sentence. A hearing was held on June 10, 2013. The
petition was denied at the end of the hearing. Watts informed the PCRA
court of his intention to appeal and on July 5, 2013 filed a timely pro se
notice of appeal.1 For unknown reasons, the notice of appeal, although
served on the PCRA court as well, was never docketed. Nonetheless, on
August 1, 2013, the PCRA court filed an opinion in support of its ruling.
Subsequently, Watts obtained counsel, though it is unclear if counsel
was appointed or privately hired. On August 29, 2013, counsel filed a PCRA
petition; however, said petition is not to be found in the certified record. It
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1
It appears that PCRA counsel was not retained through the filing of the
appeal.
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appears from subsequent docket entries that Watts sought the recusal of the
PCRA judge, the Honorable Chris R. Wogan, and reinstatement of Watts’
appellate rights. Judge Wogan denied the request for recusal on October 2,
2013, and granted Watts nunc pro tunc relief regarding his appellate rights.
Following the filing of a Pa.R.A.P. 1925(b) statement, the PCRA court filed a
second opinion on December 19, 2013.
Although the PCRA procedural history is tangled, we are able to
address the issues before us.
Initially, we note,
Our standard of review of a trial court order granting or denying
relief under the PCRA requires us to determine whether the
decision of the PCRA court is supported by the evidence of
record and is free of legal error. “The PCRA court's findings will
not be disturbed unless there is no support for the findings in the
certified record.” Commonwealth v. Lippert, 85 A.3d 1095,
1100 (Pa. Super. 2014).
Commonwealth v. Perez, 103 A.3d 344, 347 (Pa. Super. 2014).
Additionally,
To prevail on a claim of ineffective assistance of counsel, a PCRA
petitioner must satisfy the performance and prejudice test set
forth in Strickland v. Washington, 466 U.S. 668, 687, 104
S. Ct. 2052, 80 L. Ed. 2d 674 (1984). [Commonwealth v.]
Sepulveda, [618 Pa. 262,] 55 A.3d [1108] at 1117 [(2012)].
This Court has described the Strickland standard as tripartite by
dividing the performance element into two distinct components.
Commonwealth v. Busanet, 618 Pa. 1, 54 A.3d 35, 45
(2012); Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973,
975 (1987). Accordingly, to prove counsel ineffective, the
petitioner must demonstrate: (1) the underlying claim has
arguable merit; (2) no reasonable basis existed for counsel’s
actions or failure to act; and (3) the petitioner suffered prejudice
as a result of counsel’s error such that there is a reasonable
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probability that the result of the proceeding would have been
different absent such error. Sepulveda, 55 A.3d at 1117 (citing
Pierce, 527 A.2d at 975). Counsel is presumed to have rendered
effective assistance. Sepulveda, 55 A.3d at 1117.
A court is not required to analyze the elements of an
ineffectiveness claim in any particular order of priority; instead,
if a claim fails under any necessary element of the
ineffectiveness test, the court may proceed to that element first.
Id. at 1117-18; Commonwealth v. Albrecht, 554 Pa. 31, 720
A.2d 693, 701 (1998).
Commonwealth v. Tharp, 101 A.3d 736, 747 (Pa. 2014).
Regarding the denial of a motion to recuse,
[Our Supreme] Court presumes judges of this Commonwealth
are “honorable, fair and competent,” and, when confronted with
a recusal demand, have the ability to determine whether they
can rule impartially and without prejudice. Commonwealth v.
White, 557 Pa. 408, 734 A.2d 374, 384 (1999). The party who
asserts a trial judge must be disqualified bears the burden of
producing evidence establishing bias, prejudice, or unfairness
necessitating recusal, and the “decision by a judge against whom
a plea of prejudice is made will not be disturbed except for an
abuse of discretion.”
Commonwealth v. Kearney, 92 A.3d 51, 60 (Pa. Super. 2014 )(citations
omitted). Finally, “recusal motions must be timely filed.” Rizzo v. Haines,
555 A.2d 58, 70 (Pa. 1989) citing Reilly v. SEPTA, 489 A.2d 1291 (Pa.
1985). In addition, “In order to preserve an issue for appeal, a litigant must
make a timely, specific objection at trial”. Reilly, 489 A.2d at 1296.
Watts’ first claim is that Judge Wogan improperly failed to recuse
himself after demonstrating prejudice at the June 10, 2013 PCRA hearing.
At that hearing, Judge Wogan questioned Watts to see if he had any
knowledge regarding an ex parte communication with the judge on Watts’
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behalf, or to see if he knew anything about Watts’ file having been taken
from the judge’s chambers. Watts denied any knowledge of those events.
No objection was raised to the judge asking those questions, nor was any
objection raised at the end of the hearing when Judge Wogan issued his
order from the bench, denying the petition. The motion to recuse was not
docketed, but was apparently served on the trial court and the
Commonwealth by mail on September 27, 2013, more than three months
after the hearing and denial of the petition. Because there was no timely
objection raised at the time of the hearing, the motion to recuse was not
filed until three months after the hearing, and more than one month after
Judge Wogan filed his initial opinion, we conclude the motion was untimely
and the issue has been waived.
Watts’ remaining issues are related and will be addressed together.
Watts argues that his rejection of the Commonwealth’s plea offer was not
knowing, voluntary and intelligent because none of his lawyers ever
informed him of the potential sentence he faced if convicted on all charges.
Watts’ argument rests upon the
general rule, defense counsel has the duty to communicate
formal offers from the prosecution to accept a plea on terms and
conditions that may be favorable to the accused.” [Missouri v.
Frye, ___U.S.___, 132 S. Ct. 1399] at 1408 [(2012)]. In
determining whether counsel has satisfied this obligation, the
two-part test set forth in Strickland [v. Washington, 466 U.S.
668, 104 S. Ct. 2052 (1984)] applies.FN3 See id. at 1409. In
Lafler [v. Cooper, ___U.S.___, 132 S. Ct. 1376 (2102)], the
Court explained that to meet the prejudice prong of the
Strickland test where the alleged ineffectiveness of counsel
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involves the defendant's rejection of a plea offer, the defendant
must show,
FN3. That test requires that a defendant show that counsel
(1) had no reasonable basis for their actions or inactions,
and (2) the defendant suffered prejudice as a result of
counsel's conduct. In Pennsylvania, our Supreme Court
has added one additional component to the Strickland
test, requiring that a defendant also prove that the
underlying claim has arguable merit. See
Commonwealth v. Bennett, 57 A.3d 1185, 1195 (Pa.
2012).
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.
Lafler, 132 S. Ct. at 1385.
Commonwealth v. Feliciano, 69 A.3d 1270, 1276-77 (Pa. Super. 2013).
At the PCRA hearing, Watts testified that none of the attorneys who
represented him throughout the process2 ever informed him of the total
sentence he faced. Rather, he was only told of the 10-20 year mandatory
minimum sentence he was subject to as a second strike robbery offender.
N.T. PCRA Hearing, 6/10/2013, at 15-16. Watts further claimed that he was
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2
The record reflects two attorneys from the Defender Association met with
Watts prior to trial as well as appointed counsel, who represented Watts at
trial after the Defender Association withdrew because of conflict.
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told he would likely serve 16 years of his sentence. Id. at 10. Therefore, he
reasoned, the 7-20 year offer from the Commonwealth did not represent an
actual benefit and appointed counsel recommended he reject the offer. Id.
at 10.
The three lawyers who represented Watts also testified at the hearing.
Robert Jovanov, Esq., of the Defender Association testified he met with
Watts at Curran Fromhold Prison prior to the pretrial conference. Id. at 30.
He explained to Watts that, if convicted on the robbery charge, it would be
at least his second strike3 with a 10-20 year mandatory minimum sentence.
Id. at 31. He informed Watts of the Commonwealth’s offer. Id. at 30.
However, Watts told Jovanov that he was innocent and wanted to go to trial.
Id. at 32.
Vincent Corrigan, Esq., of the Defender Association, testified next. In
relevant part, he produced his handwritten notes from his April 2, 2008,
meeting with Watts. These notes detailed Corrigan’s explanation to Watts of
what he might expect regarding sentencing if he went to trial before Judge
Wogan and was convicted:
And I indicated that if he was convicted of robbery he would
have to get 10 to 20 because the case was a second strike; that
for conspiracy he would probably get about 4 to 10; for PIC I
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3
Watts’ criminal history was unclear, and there may have been two prior
robbery convictions. There was indication of two prior convictions before
Judge Maier.
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estimated about 14 months to 4 years; for reckless
endangerment I estimated 6 months to 2 years; for witness
intimidation I estimated 6½ to 15 years; and for use of a
communications facility I estimated 11 months to 5 years, for a
total of -- approximately 23½ to 54 years was my estimation of
the sentence he would receive from Judge Wogan if he went to
trial and lost.[4]
N.T. PCRA Hearing, 6/10/2013, at 52. Attorney Corrigan also testified Watts
told him he did not do it, and wanted house arrest. Id. at 51.
Finally, trial counsel, John Cotter, Esq., testified he told Watts about
the Commonwealth’s 7-20 year offer, but that Watts was not interested. Id.
at 65-66. On his own, Cotter made a counter proposal to the
Commonwealth of 7-14 years’, but the Commonwealth rejected those terms.
Id. at 66. He testified he reminded Watts of the 10-20 year mandatory
minimum sentence he faced and that, if convicted on all charges, Watts
likely would receive two to three times the mandatory sentence – meaning a
minimum sentence of between 20 to 30 years’ incarceration. Id. at 66-67.
Further, he testified he recommended Watts accept the offer in light of
Watts’ potential exposure. Id. at 67.
Additionally, Cotter was questioned about a discussion that took place
following the pretrial hearing on Watts’ Rule 600 “speedy trial” motion.
Watts was present during the discussion about the Commonwealth’s offer at
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4
Corrigan’s estimate proved to be a remarkably accurate prediction. Watts
received a sentence of 24½ to 50 years and two months’ incarceration.
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which time Judge Wogan stated, “There is an awful lot of exposure if the
defendant is found guilty. We won’t be talking about 7 or 10 years: that is
just a fraction of what will happen in here normally so, if there are crimes of
violence and there are convictions.” Id. at 67-68. Cotter testified that
following Judge Wogan’s statement, Watts never expressed surprise at the
prospect of a long sentence, did not express confusion and never asked to
plead guilty. Id. at 68-69. Finally, we note this exchange:
[ADA Mahler:] So does this case stand out in your mind at all, in
terms of your having a specific recollection?
[Cotter:] I do.
[ADA Mahler:] And tell me about that. Why do you remember
this case, just briefly?
[Cotter:] Because I wanted the defendant to take the deal and I
recommended it and … his response was, I want a jury trial. I
want to plead not guilty. I didn’t do it. That’s what he told me
whenever I tried to approach the subject, which is fine. I have
no problem with that.
Id., at 84.
Based upon the forgoing evidence, the trial court determined, “[t]he
three attorneys that testified, two of whom I’m pretty familiar with, all
testified in a credible fashion.” Id. at 98. Further, he determined Watts
“testified completely without credibility[.]” Id. at 99. Our review of the
certified record finds ample support for these determinations. The certified
record demonstrates Watts was told multiple times he faced a significant
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prison sentence if convicted. One of his lawyers even provided an accurate
prediction of the sentence he anticipated. Watts’ response to the plea offer
was a consistent refusal accompanied by an assertion of innocence.
Accordingly, counsel cannot be ineffective for failing to inform Watts of his
possible sentence and Watts’ rejection of the plea offer was knowing,
voluntary and intelligent.
Because the PCRA court’s ruling is supported by the record and is free
from legal error, we affirm.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/4/2015
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