Com. v. Forbes, I. ( 2017 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
IMANUEL FORBES :
:
Appellant : No. 3671 EDA 2015
Appeal from the PCRA Order November 4, 2015
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0006926-2013
BEFORE: PANELLA, J., RANSOM, J., and MUSMANNO, J.
MEMORANDUM BY RANSOM, J.: FILED JANUARY 10, 2017
Appellant Imanuel Forbes appeals from the order denying his first
petition pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§
9541-9546. We affirm.
The relevant facts and procedural history are as follows. In August
2013, Appellant got into the car of his cousin Daniel Taylor (“Taylor”) to
smoke marijuana, and they picked up a third man, Tereek Irving (“Irving”).
See Notes of Testimony (“N.T.”), 4/30/2014, at 117, 124-125, 128. Taylor
climbed onto the roof of a residence and broke in through a second floor
window to look for marijuana inside the house. N.T., 4/30/2014, at 64, 76-
77. A thirteen year-old boy (“Boy”) was home alone at the time playing
videogames. N.T., 4/29/14, at 45-46. Taylor put a gun to Boy’s head and
led him downstairs to open the front door and let a second man in, but the
alarm went off, sending a signal to the police. See id. at 48, 68-70.
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Boy testified that Appellant told him to turn the alarm off and to sit in
the kitchen. See id. at 49. The other men handed Boy’s PlayStation 3 to
Appellant. See id. Appellant waited with Boy as Taylor and Irving brought
a bucket of marijuana downstairs. N.T., 4/30/2014, at 129-30. When they
opened the front door and saw the police were outside, two of the men ran
back into the house. See PCRA Ct. Op., 2/3/2016, at 4. Appellant brought
Boy into the basement to show him another way out. N.T., 4/29/14, at 50-
51. When Boy opened basement walkout door, he ran out to the cops. See
id. at 52. A police dog found Appellant in an upstairs bedroom closet where
he was hiding. See N.T., 4/30/2014, at 22-21, 24, 133. Five feet from
Appellant’s hiding spot, the police found a loaded firearm in a dresser
drawer. See id. at 24. Appellant was arrested and charged with, inter alia,
conspiracy to commit robbery and burglary.
At a pre-trial conference on January 27, 2014, the Commonwealth
conveyed an offer to Appellant: that if he would plead guilty to the charges
in this case and another unrelated PWID case, the Commonwealth would
recommend three- to six-year terms of incarceration to run consecutively for
each case. See N.T., 1/27/2014, at 4-5. Trial counsel discussed the plea
with Appellant at the pre-trial conference and when visiting him in prison.
See, N.T., 9/25/2015, at 5, 31, 39.
Before trial on April 29, 2015, the Commonwealth gave Appellant a
negotiated plea offer: that if Appellant would plead guilty to the charges in
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both cases, the Commonwealth would recommend an aggregate sentence of
three to six years plus five years of consecutive probation in each case to
run concurrently. See N.T., 4/29/2015, at 3. Appellant rejected the
proposed negotiated plea for concurrent time in both cases. See id. at 4.
Following a jury trial, Appellant was found guilty of burglary, robbery,
conspiracy to commit robbery, and conspiracy to commit burglary.1 On June
25, 2014, Appellant was sentenced to five to ten years’ incarceration on
each of the burglary and robbery charges, and three to six years for criminal
conspiracy, for an aggregate of thirteen to twenty-six years’ incarceration
followed by five years’ probation. See N.T., 6/25/2014, at 10.
Appellant retained new counsel and timely filed a direct appeal. On
October 21, 2014, Appellant made the counseled decision to withdraw his
direct appeal in order to pursue a petition for collateral relief. This Court
granted Appellant’s motion to withdraw his direct appeal. See
Commonwealth v. Forbes, 2150 EDA 2014, Super. Ct. Order, 10/21/2014.
Thereafter, Appellant timely filed a counseled PCRA petition asserting
an ineffective assistance of trial counsel in failing to advise him to accept a
plea before trial. See PCRA Petition, 4/2/2015. In his underlying PCRA
petition, Appellant argued that he was entitled to reinstatement of the
Commonwealth’s plea deal offered on April 29, 2013. See, generally,
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1
Respectively, 18 Pa.C.S. § 3502(A)(1), § 3701(A)(1)(ii), § 903.
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Memorandum of Law in Support of PCRA Petition, 4/2/2015.
The PCRA court held an evidentiary hearing on September 24, 2015.
Appellant testified that counsel informed him of the January 2014 offer of
three to six years to run consecutively with a three to six year deal in his
PWID case. See, N.T., 9/24/2015, at 4-5. He understood trial counsel’s
advice to mean that the plea offer was not a good deal, but that counsel
would try to negotiate a better deal, and counsel did in fact get him a better
deal. See id. at 6, 16.
Trial counsel testified that he conveyed the plea on multiple occasions;
however, Appellant maintained his innocence. See id. at 25-26, 28, 39-40.
Counsel discussed how he believed the Commonwealth would go for a
concurrent time deal. See id. at 32. Counsel reviewed the evidence with
Appellant as well as the strengths and weaknesses of his case on multiple
occasions. See id. at 29, 26-27, 30, 32-33, 39.2 According to trial counsel,
the only thing he could have done differently to get Appellant to accept the
plea would have been to scream at him, because Appellant asserted he was
innocent and wanted to testify. See id. at 30.
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2
In particular, counsel “ran through the options,” he explained that the
likelihood of a non-guilty verdict would depend on the little boy’s testimony,
and his ability to identify Appellant as one of the people in the house. Id. at
26, 28. They also discussed how the evidence in the PWID case came down
to credibility of his and another witness’s testimony. See id. at 32.
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Following the hearing, the PCRA court denied Appellant’s petition. See
Order, 11/4/2015. Appellant timely filed an appeal and a court-ordered Pa.
R.A.P. 1925(b) statement. See Appellant’s Rule 1925 Statement, 1/4/2016.
The PCRA Court issued a responsive opinion. See PCRA Ct. Op., 2/4/2016.
On appeal, Appellant presents one issue:
1. Did the PCRA court err by holding that Defendant's trial
counsel was not ineffective for failing to offer advice about a
plea offer where the record does not support the conclusion
that Defendant was advised about the specific offer that was
made to him minutes before his trial commenced?
Appellant’s Br. at 4.
Appellant contends that trial counsel was ineffective in failing to
convey the concurrent time offer before it was offered in court on April 29,
2014. See Appellant’s Br. at 15; N.T., 9/24/2015, at 6-7. He maintains
that there was “no evidence of record to support the inference that
[Appellant] was ever advised of the pros and cons” of that deal. Id. at 15,
19. Appellant contends that “[w]ithout any advice from his lawyer, [he]
foolishly elected to proceed to trial, and the plea offer was withdrawn.” Id.
at 13 (citing N.T., 4/29/2014, at 4). Thus, Appellant contends the PCRA
court erred in denying Appellant relief.
Our standard of review is well settled.
This Court analyzes PCRA appeals in the light most favorable to
the prevailing party at the PCRA level. Our review is limited to
the findings of the PCRA court and the evidence of record and we
do not disturb a PCRA court’s ruling if it is supported by evidence
of record and is free of legal error. Similarly, [w]e grant great
deference to the factual findings of the PCRA court and will not
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disturb those findings unless they have no support in the record.
However, we afford no such deference to its legal conclusions.
[W]here the petitioner raises questions of law, our standard of
review is de novo and our scope of review is plenary. Finally, we
may affirm a PCRA court’s decision on any grounds if the record
supports it.
Commonwealth v. Steckley, 128 A.3d 826, 831 (Pa. Super. 2015), alloc.
denied, 140 A.3d 13 (Pa. 2016); Commonwealth v. Rigg, 84 A.3d 1080,
1084 (Pa. Super. 2014); Commonwealth v. Rykard, 55 A.3d 1177, 1183
(Pa. Super. 2012), alloc. denied, 55 A.3d 1177 (Pa. 2013) (internal
quotation marks and citations omitted).
To overcome the presumption of counsel’s effectiveness, a petitioner
must show:
(1) [T]he underlying claim has arguable merit; (2) no reasonable
basis existed for counsel’s actions or failure to act; and (3)
petitioner suffered prejudice as a result of counsel’s error such
that there is a reasonable probability that the result of the
proceeding would have been different absent such error.
Commonwealth v. Reed, 971 A.2d 1216, 1221 (Pa. 2009) (citing
Commonwealth v. Pierce, 527 A.2d 973, 975 (Pa. 1987)). “[A] PCRA
petitioner bears the burden of pleading and proving each of the three factors
by a preponderance of the evidence.” Steckley, 128 A.3d at 831.
“Defense counsel has a duty to communicate to his client, not only the
terms of a plea bargain offer, but also the relative merits of the offer
compared to the defendant's chances at trial.” Commonwealth v. Napper,
385 A.2d 521, 524 (Pa. Super. 1978). To establish ineffectiveness in this
context, a petitioner must establish that “(1) an offer for a plea was made;
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(2) trial counsel failed to inform him of such offer; (3) trial counsel had no
reasonable basis for failing to inform him of the plea offer; and (4) he was
prejudiced thereby.” Commonwealth v. Chazin, 873 A.2d 732, 735 (Pa.
Super. 2005); see also Commonwealth v. Copeland, 445 A.2d 54, 60-61
(Pa. Super. 1988) (holding that counsel failed to offer appropriate and timely
professional advice concerning a plea). To find prejudice, there must be a
“reasonable probability” that but for counsel's errors, the petitioner would
have accepted the plea. Steckley, 128 A.3d at 832; Lafler v. Cooper, 132
S.Ct. 1376, 1389 (2012).
After considering the evidence, the PCRA court deemed trial counsel’s
testimony as more credible than Appellant’s and dismissed the petition. See
PCRA Ct. Op., 2/4/2016, at 3, 8, 12 (referencing N.T., 9/24/2015, at 29-30).
Here, the PCRA court found counsel’s actions “were reasonable under the
circumstances” and that Appellant “failed to prove that in any case he would
have accepted the Commonwealth’s offer.” PCRA Ct. Op. at 12-13.
Moreover, the court found “[b]oth offers were reviewed in court with
[Appellant], trial counsel and the assistant district attorney present.” Id. at
8. Thus, the PCRA court determined that Appellant failed to establish that
his claim had arguable merit. See id. at 12.
The PCRA court’s findings are supported by the record. In this case,
counsel explained the strengths and weaknesses of Appellant’s case with
him two or three times. Counsel testified credibly that he explained the
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possibility of a concurrent time deal to Appellant. Appellant acknowledged
that he told counsel that he would accept a nice deal if it was on the table.
On the day of trial, Appellant knew that co-defendant Taylor pled guilty the
day before and had signed a statement implicating Appellant as a co-
conspirator. Yet, when the Commonwealth put the offer on the table,
Appellant failed to take the deal despite the evidence against him.
Appellant’s claim that counsel did not “give [him] the right counseling
that [he] needed at that moment in time” is not sufficient to warrant relief.
N.T., 9/24/2015, at 19. A mere hindsight observation that the negotiated
plea offered before trial was a good deal, which Appellant failed to accept, is
insufficient to establish that counsel “failed to provide defendant with any
significant advice concerning the Commonwealth’s initial offer.” Chazin,
873 A.2d at 735; Copeland, 445 A.2d at 60.
At the evidentiary hearing, Appellant failed to establish credibly that
counsel failed to communicate the plea offer. See Steckley, 128 A.2d at
832-33. Thus, Appellant’s PCRA petition necessarily fails to surpass the
threshold inquiry to establish that his claim has arguable merit. See
Chazin, 873 A.2d at 735. We discern no abuse of discretion. Accordingly,
the PCRA court’s order is affirmed.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/10/2017
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