Com. v. Smith, F. ( 2019 )

J-S13010-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellee
v.
FREDERICK SMITH,
Appellant No. 552 WDA 2018
Appeal from the PCRA Order Entered March 22, 2018
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s):
CP-02-CR-0002180-2013
CP-02-CR-0002182-2013
BEFORE: BENDER, P.J.E., OTT, J., and STRASSBURGER, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED MAY 10, 2019
Appellant, Frederick Smith, appeals from the post-conviction court’s
March 22, 2018 order denying his petition under the Post Conviction Relief Act
(PCRA), 42 Pa.C.S. §§ 9541-9546. Appellant claims that the PCRA court erred
by denying his claim that his trial counsel acted ineffectively by permitting him
to plead guilty to the offense of conspiracy to commit intimidation of a witness,
where the Commonwealth’s factual summary was inadequate to support that
charge. After careful review, we affirm.
On April 28, 2014, Appellant entered a negotiated guilty plea (in two
separate, but related, cases) to one count of statutory sexual assault, 18
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* Retired Senior Judge assigned to the Superior Court.
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Pa.C.S. § 3122.1(a)(2) (defendant eight years older but less than 11 years
older than the complainant), and one count of conspiracy to commit
intimidation of a witness (hereinafter, “conspiracy to intimidate”), 18 Pa.C.S.
§§ 903 and 4952. That same day, Appellant was sentenced to two, concurrent
terms of 18 to 36 months’ incarceration, a consecutive period of 4 years’
probation, and a 25-year registration requirement under the Sex Offender
Registration and Notification Act (SORNA), 42 Pa.C.S. §§ 9799.10-9799.41.
Appellant did not file a direct appeal from his judgment of sentence.
On June 23, 2014, Appellant filed a timely, pro se PCRA petition and
counsel was appointed. Counsel filed an amended petition on Appellant’s
behalf in December of 2014. After the Commonwealth filed an answer to
Appellant’s petition, the PCRA court issued a Pa.R.Crim.P. 907 notice of its
intent to dismiss the petition without a hearing. Appellant did not file a
response, and the court issued an order on April 14, 2015, dismissing his
petition.
Appellant filed a timely notice of appeal, raising three claims alleging
plea counsel’s ineffectiveness. After rejecting the first two issues as meritless,
this Court issued a memorandum decision concluding that Appellant’s third
ineffectiveness claim warranted an evidentiary hearing. Commonwealth v.
Smith, No. 729 WDA 2015, unpublished memorandum at 15-16 (Pa. Super.
filed May 24, 2016) (hereinafter, “Smith I”). More specifically, the Smith I
panel agreed with Appellant that there was arguable merit to his claim that
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the following factual basis, offered by the Commonwealth at Appellant’s plea
proceeding, was insufficient to support the charge of conspiracy to intimidate:
[The Commonwealth:] With regard to CC 201302180, the
testimony would have been substantially that [Appellant,] while in
the intake at the Allegheny County jail, placed a call to a witness
the Commonwealth would have presented to testify by the name
of Sabrina Malloy.
She would testify that she received that call and we would
put those recordings into evidence but that [Appellant]
substantially asked her to head up to the Spring Street area giving
her the address, make contact with the victim’s mother and ask
[the mother] if they would drop the charges saying that
[Appellant] was -- and asked [Malloy] to relay that [the victim]
told [Appellant] that she was older than 1[8]. That would be the
sum of the Commonwealth’s testimony, Your Honor.
N.T. Plea Hearing, 4/28/14, at 36-37.
In Smith I, we accepted Appellant’s position that “the elements of the
offense [of intimidation of a witness] require a person to intimidate or attempt
to intimidate a person.” Smith I, No. 729 WDA 2015, unpublished
memorandum at 15 (quoting Appellant’s Brief in Smith I at 17; citing
Commonwealth v. Doughty, 126 A.3d 951, 957 (Pa. 2015)). We then
explained:
The factual summary provided by the Commonwealth in this
case established that Appellant called Ms. Malloy and asked her to
go to the victim’s house to request that the victim’s mother ‘drop
the charges,’ and explain to the victim’s mother that the victim
told Appellant she was older than 18. Nothing on the face of [the
above-quoted] factual summary demonstrates that Appellant
intended that Ms. Malloy intimidate the victim’s mother when
making these requests. Moreover, the victim’s mother clearly was
not intimidated by Ms. Malloy, as she assaulted Ms. Malloy on her
doorstep. Accordingly, we find arguable merit in Appellant’s
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contention that the factual summary was inadequate to prove the
intimidation element of the crime of conspiracy to intimidate.
We recognize that at the plea proceeding, defense counsel
remarked that he “believe[d] … the intimidation could be that a
jury could find … that merely sending someone to the house is
truly intimidation.” N.T. Plea Hearing at 19. However, we can
find no case law addressing the question of whether ‘sending
someone’ to a witness’ home would alone be sufficient to prove
intimidation. Moreover, because the PCRA court did not conduct
a hearing, we do not have any explanation for counsel’s belief, nor
the ability to assess the reasonableness thereof.4 We also point
out that in its opinion, the PCRA court did not address Appellant’s
claim that the Commonwealth’s factual summary failed to
establish intimidation, despite that Appellant raised that argument
in his [Pa.R.A.P.] 1925(b) statement. For these reasons, we
cannot assess the reasonable basis or prejudice prongs of
Appellant’s ineffectiveness claim on the record as it currently
stands.
4 For
instance, counsel may have reviewed the discovery and
had knowledge of facts bolstering a conclusion that
Appellant intended to intimidate the victim’s mother by
sending Ms. Malloy to her home.
Smith I, No. 729 WDA 2015, unpublished memorandum at 15-16.
The Smith I panel thus vacated the PCRA court’s order denying
Appellant’s petition and remanded for the court to conduct an evidentiary
hearing, which the court convened on March 2, 2018. At that proceeding,
both plea counsel and Appellant testified. On March 22, 2018, the PCRA court
issued an order denying Appellant relief on this ineffectiveness claim for the
second time. Appellant filed a timely notice of appeal, and he also timely
complied with the PCRA court’s order to file a Rule 1925(b) concise statement
of errors complained of on appeal. Herein, Appellant states one issue for our
review:
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1. Did the PCRA [c]ourt err in concluding that [p]lea [c]ounsel
was not ineffective in permitting Appellant to enter a guilty plea
to an offense where the factual basis offered at the time of the
plea was inadequate to support the charge?
Appellant’s Brief at 3.
Initially, we recognize the following:
Our standard in reviewing a PCRA court order is abuse of
discretion. We determine only whether the court’s order is
supported by the record and free of legal error. This Court grants
great deference to the findings of the PCRA court, and we will not
disturb those findings merely because the record could support a
contrary holding. We will not disturb the PCRA court’s findings
unless the record fails to support those findings.
A criminal defendant has the right to effective counsel during a
plea process as well as during trial. A defendant is permitted to
withdraw his guilty plea under the PCRA if ineffective assistance
of counsel caused the defendant to enter an involuntary plea of
guilty.
We conduct our review of such a claim in accordance with the
three-pronged ineffectiveness test under section 9543(a)(2)(ii) of
the PCRA, 42 Pa.C.S.[] § 9543(a)(2)(ii). The voluntariness of the
plea depends on whether counsel’s advice was within the range of
competence demanded of attorneys in criminal cases.
In order for [an] [a]ppellant to prevail on a claim of ineffective
assistance of counsel, he must show, by a preponderance of the
evidence, ineffective assistance of counsel[,] which, in the
circumstances of the particular case, so undermined the truth-
determining process that no reliable adjudication of guilt or
innocence could have taken place. Appellant must demonstrate:
(1) the underlying claim is of arguable merit; (2) that counsel had
no reasonable strategic basis for his or her action or inaction; and
(3) but for the errors and omissions of counsel, there is a
reasonable probability that the outcome of the proceedings would
have been different. The petitioner bears the burden of proving
all three prongs of the test.
Moreover, trial counsel is presumed to be effective.
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Commonwealth v. Rathfon, 899 A.2d 365, 368–69 (Pa. Super. 2006)
(internal citations, quotation marks, and certain formatting omitted).
In the case sub judice, the PCRA court rejected Appellant’s
ineffectiveness claim, first concluding that his underlying issue lacked
arguable merit because the Commonwealth’s factual summary - set forth
supra - was sufficient, if believed by the fact-finder, to prove the charge of
conspiracy to intimidate. See PCO at 5. In this regard, we agree with
Appellant that the court erred. In Smith I, we explicitly stated that there was
“arguable merit in Appellant’s contention that the factual summary was
inadequate to prove the intimidation element of the crime of conspiracy to
intimidate.” Smith I at 15. No evidence produced at the hearing on remand
altered our decision in this regard.
However, the PCRA court alternatively concluded that plea counsel had
a reasonable basis for allowing Appellant to plead guilty. Id. at 5-6. We
agree. At the evidentiary hearing, plea counsel testified that he believed the
plea deal offered to Appellant was good because the Commonwealth was
agreeing to withdraw six serious charges in exchange for Appellant’s pleading
guilty to two offenses, and the sentences offered by the Commonwealth were
in the low-end of the standard guideline range for Appellant’s statutory sexual
assault crime, and one year below the mitigated guideline range for his
conspiracy to intimidate charge. See N.T. Hearing, 3/2/18, at 12-15. Counsel
testified that he communicated to Appellant that this was “a good deal[,]”
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even though the Commonwealth’s case was weak on the conspiracy to
intimidate charge. When asked to elaborate, counsel explained:
[Plea Counsel:] … [W]ell, regarding the case which held all the
sexual charges, as I informed [Appellant], it would largely boil
down to his word against hers, and so, whether or not his defense
was successful could depend largely upon whether or not a jury
would believe him. And for the charge of conspiracy to intimidate
a witness, I told him I thought it was not the strongest intimidation
case I’d ever seen in my life, but my gut instinct was that most
Judges in the Courthouse would probably find him guilty based on
the facts that were alleged in the Complaint, and if those facts
came out at trial, I think they would find him guilty.
As far as a jury goes, I said he might have more luck in
alleging that he didn’t actually attempt to intimidate or threaten a
witness, but I could still find it conceivable that they could convict
him.
Id. at 16-17. The Commonwealth then asked whether it was counsel’s
understanding, after giving Appellant this advice, that “he still wanted to plead
guilty even knowing that he might have a defense to [the] charge [of
conspiracy to intimidate,]” to which counsel replied, “Yes.” Id. at 17.
The PCRA court found this testimony by counsel credible, and
determined that counsel had expressed a reasonable basis for his decision to
advise Appellant to plead guilty. See PCO at 6. In reaching this conclusion,
the court was guided by the following portion of Commonwealth v.
Fluharty, 632 A.2d 312 (Pa. Super. 1993):
Where counsel is able to negotiate a favorable plea bargain,
and where the defendant understands the bargain and is satisfied
with and accepts it rather than go to trial, the decision by counsel
not to object to a defective guilty plea colloquy will be deemed a
reasonable one. Under such circumstances, counsel will not be
found to have been ineffective. See[] Commonwealth v.
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Johnson, 355 Pa. Super. 123, 137-139, 512 A.2d 1242, 1249-
1250 (1986); Commonwealth v. Burno, 310 Pa. Super. 564,
456 A.2d 1080 (1983); Commonwealth v. Weiss, 289 Pa.
Super. 1, 432 A.2d 1020 (1981). See also[] Commonwealth v.
Newell, 486 Pa. 474, 406 A.2d 733 (1979).
Instantly, in exchange for pleas of guilty to charges of
aggravated assault and carrying a firearm without a license, it was
agreed that [the] appellant would receive concurrent sentences
for his crimes.4 It was also agreed that the Commonwealth would
nolle pros additional charges of recklessly endangering another
person, making terroristic threats, possessing an instrument of
crime, former convict not to own a firearm, resisting arrest and
criminal conspiracy. Had [the] appellant elected to go to trial
under these circumstances, he faced a substantially longer term
of imprisonment, if convicted, than he received as a result of the
guilty pleas which he entered. Indeed, even [the] appellant
conceded at the [PCRA] hearing that his principal reason for
pleading guilty was because he was worried about receiving a
longer sentence if he went to trial and was found guilty. The
record of the guilty plea colloquy establishes that [the] appellant
fully understood the bargain which counsel negotiated with the
Commonwealth and that he was satisfied to accept it. Under these
circumstances, we agree with the [PCRA] court that counsel was
not ineffective for advising [the] appellant to enter the guilty plea.
[The a]ppellant received the benefit of a favorable plea bargain
negotiated by counsel and knowingly and voluntarily decided to
accept that bargain.
4 In fact, the sentences received by [the] appellant were at
the low end of the mitigated range of the Sentencing
Guidelines.
Id. at 318-19.
Here, as in Fluharty, Appellant clearly received the benefit of a
favorable plea bargain. Had he elected to go to trial, he would have been
exposed to a much lengthier term of incarceration. Plea counsel recognized -
and communicated to Appellant - that the facts supporting the conspiracy to
intimidate charge were weak, but that, in counsel’s opinion, Appellant could
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still be convicted of that offense if he proceeded to trial. Counsel advised
Appellant that the Commonwealth’s plea offer was good, and that Appellant
should accept it, despite his potential defense to the conspiracy to intimidate
charge. Counsel believed that Appellant understood all of this in deciding to
plead guilty.
We also note that, on appeal, Appellant admits that “there is no doubt
that plea counsel believed he had secured a good plea deal for Appellant and
that it was in Appellant’s best interests to take the plea.” Appellant’s
Brief at 10 (emphasis added). Appellant further acknowledges that “an
individual is permitted to make an informed decision to accept a guilty plea,
even when one believes he is innocent, rather than accept the risk of an
adverse jury verdict and that entering a plea under those circumstances does
not render the plea unknowing.” Id. (citing Fluharty, 632 A.2d at 315). He
insists, however, that he “made clear” in his testimony at the PCRA hearing
“that he did not enter a plea even though he believed he was innocent because
the deal was too good to pass up[,] and his efforts to void the plea bear this
out.” Id. at 11. In other words, Appellant seemingly contends that he did
not have a strategic reason for pleading guilty to conspiracy to intimidate,
despite the inadequacy of the Commonwealth’s factual summary, and,
therefore, counsel should not have permitted him to do so.
Appellant’s argument is unconvincing. While he did testify at the PCRA
hearing that he did not “feel motivated to take this plea because it was such
a great deal[,]” he also stated on cross-examination that he pled guilty to
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resolve the case, and because it “appeal[ed] to [him] that the Commonwealth
had offered [him] a minimum sentence of 18 months based on all the time
that [he] previously had in jail[.]” N.T. Hearing at 45, 47. Thus, Appellant
did state strategic reasons for pleading guilty to the at-issue offense.
In sum, in light of the testimony admitted at the PCRA hearing, we
conclude that the record supports the PCRA court’s determination that counsel
had a reasonable basis for advising Appellant to plead guilty to conspiracy to
intimidate, as doing so was in Appellant’s best interest. Further, Appellant
understood his potential defenses to that charge, and entered a knowing and
voluntary plea. Therefore, the court did not err in denying his petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/10/2019
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