Com. v. Martin, A. ( 2021 )

J-A29015-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ANDREW JAMES MARTIN :
:
Appellant : No. 512 WDA 2021
Appeal from the PCRA Order Entered March 22, 2021
In the Court of Common Pleas of Clearfield County Criminal Division at
No(s): CP-17-CR-0000557-2018
BEFORE: BENDER, P.J.E., BOWES, J., and PELLEGRINI, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED: DECEMBER 30, 2021
Appellant, Andrew James Martin, appeals from the post-conviction
court’s March 22, 2021 order dismissing his first, timely petition under the
Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. Appellant
presents two claims of ineffective assistance of counsel (IAC). After careful
review, we affirm.
The PCRA court summarized the facts and procedural history of this
case, as follows:
On May 29, 2018, [Appellant] … was found trespassing on Joyce
McClelland’s property. After being told to leave by Pennsylvania
State Police (hereinafter “PSP”), [Appellant] returned to the
property. Upon his return, Dwayne Delattre, McClelland’s brother,
ordered [Appellant] to leave the property. Ultimately, [Appellant]
kicked in McClelland’s door, entered the residence, and physically
assaulted Delattre. At that point, McClelland retrieved her
firearm, pointed it at [Appellant], and told him to leave.
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* Retired Senior Judge assigned to the Superior Court.
J-A29015-21
[Appellant] left the residence and was apprehended by a neighbor
until PSP returned. Based on this incident, [Appellant] was
charged with burglary, criminal trespass, possession of
paraphernalia, simple assault, criminal mischief, defiant trespass,
and harassment.
The Clearfield County Public Defender’s Office, specifically
Matthew Swisher, Esq., entered [his] appearance on behalf of
[Appellant]. After a jury trial on September 21, 2018, [Appellant]
was convicted of all charges. On November 5, 2018, this [c]ourt
sentenced [Appellant] to a term of incarceration of six to twelve
years. Attorney Swisher filed a Motion for Withdrawal of Counsel
on November 20, 2018. In the Motion, Attorney Swisher aver[red
that Appellant] had indicated to Attorney Swisher that he was
filing a … []PCRA [p]etition[] for [IAC] against the Public
Defender’s Office. Subsequently, [Appellant] filed a pro se PCRA
[p]etition for [IAC] on November 27, 2018. This [c]ourt permitted
the Public Defender’s Office to withdraw from representation of
[Appellant], so long as a timely Notice of Appeal [from Appellant’s
judgment of sentence] was filed to protect the record and the
rights of [Appellant]. Following the [c]ourt’s Order, Attorney
Swisher filed a Notice of Appeal [from Appellant’s November 5,
2018 judgment of sentence] on behalf of [Appellant].
Heather Bozovich, Esq.[,] was appointed to represent [Appellant]
and ordered to determine whether [Appellant] would proceed with
his direct appeal or his PCRA [p]etition. Thereafter, [Appellant]
was permitted to withdraw his PCRA [p]etition without prejudice
and proceed with his direct appeal to the Superior Court.
However, on April 10, 2019, the Superior Court issued an Order
to Discontinue the Appeal. On June 17, 2019, [Appellant]
submitted a second PCRA Petition [alleging IAC.1] Attorney
Bozovich was … reappointed [to] represent [Appellant] for the
purpose of his PCRA [p]etition.
On October 24, 2019, Attorney Bozovich filed an [a]mended PCRA
[p]etition on behalf of [Appellant].
PCO at 1-2 (footnotes omitted).
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1The court properly treated this filing as Appellant’s first PCRA petition. See
PCRA Court Opinion (PCO), 3/22/21, at 2 n.2.
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In Appellant’s amended petition, he raised multiple IAC claims against
Attorney Swisher. On January 14, 2021, the court conducted a PCRA hearing.
On March 22, 2021, the PCRA court issued an order and opinion dismissing
Appellant’s petition. Appellant filed a timely notice of appeal, and he also
timely complied with the PCRA court’s order to file a Pa.R.A.P. 1925(b) concise
statement of errors complained of on appeal. The court thereafter notified
this Court that it would not be filing another opinion in the matter. Thus, we
consider the rationale set forth in the PCRA court’s March 22, 2021 opinion in
addressing the following three issues for our review:
[I.] Whether Appellant’s constitutional rights under the Sixth
Amendment were violated by counsel’s ineffective determination
of his sentencing guidelines[,] thereby depriving Appellant of the
ability to intelligently pursue a plea agreement[?]
[II.] Whether counsel was constitutionally ineffective under the
Sixth Amendment for pursuing and arguing self-defense when
there was no evidence supporting [that] Appellant was acting in
self-defense and over Appellant’s objection to this trial strategy?
[III.] Whether … [A]ppellant’s rights under the constitution were
violated based upon the cumulative impact of the above errors?
Appellant’s Brief at 5 (unnecessary capitalization omitted; some formatting
changed).
“This Court’s standard of review from the grant or denial of post-
conviction relief is limited to examining whether the lower court’s
determination is supported by the evidence of record and whether it is free of
legal error.” Commonwealth v. Morales, 701 A.2d 516, 520 (Pa. 1997)
(citing Commonwealth v. Travaglia, 661 A.2d 352, 356 n.4 (Pa. 1995)).
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Where, as here, a petitioner claims that he or she received ineffective
assistance of counsel, our Supreme Court has directed that the following
standards apply:
[A] PCRA petitioner will be granted relief only when he proves, by
a preponderance of the evidence, that his conviction or sentence
resulted from the “[i]neffective 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.” 42 Pa.C.S. § 9543(a)(2)(ii).
“Counsel is presumed effective, and to rebut that presumption,
the PCRA petitioner must demonstrate that counsel’s performance
was deficient and that such deficiency prejudiced him.”
[Commonwealth v.] Colavita, … 993 A.2d [874,] 886 [(Pa.
2010)] (citing Strickland [v. Washington, 466 U.S. 668 ...
(1984)]). In Pennsylvania, we have refined the Strickland
performance and prejudice test into a three-part inquiry. See
[Commonwealth v.] Pierce, [527 A.2d 973 (Pa. 1987)]. Thus,
to prove counsel ineffective, the petitioner must show that: (1)
his underlying claim is of arguable merit; (2) counsel had no
reasonable basis for his action or inaction; and (3) the petitioner
suffered actual prejudice as a result. Commonwealth v. Ali, …
10 A.3d 282, 291 (Pa. 2010). “If a petitioner fails to prove any of
these prongs, his claim fails.” Commonwealth v. Simpson, …
66 A.3d 253, 260 ([Pa.] 2013) (citation omitted). Generally,
counsel’s assistance is deemed constitutionally effective if he
chose a particular course of conduct that had some reasonable
basis designed to effectuate his client’s interests. See Ali, supra.
Where matters of strategy and tactics are concerned, “a finding
that a chosen strategy lacked a reasonable basis is not warranted
unless it can be concluded that an alternative not chosen offered
a potential for success substantially greater than the course
actually pursued.” Colavita, … 993 A.2d at 887 (quotation and
quotation marks omitted). To demonstrate prejudice, the
petitioner must show that “there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of the
proceedings would have been different.” Commonwealth v.
King, … 57 A.3d 607, 613 ([Pa.] 2012) (quotation, quotation
marks, and citation omitted). “‘[A] reasonable probability is a
probability that is sufficient to undermine confidence in the
outcome of the proceeding.’” Ali, … 10 A.3d at 291 (quoting
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Commonwealth v. Collins, … 957 A.2d 237, 244 ([Pa.] 2008)
(citing Strickland, 466 U.S. at 694…)).
Commonwealth v. Spotz, 84 A.3d 294, 311-12 (Pa. 2014).
In Appellant’s first issue, he contends that Attorney Swisher acted
ineffectively by “relying on incorrect information” when advising Appellant on
whether to plead guilty or proceed to trial. Specifically, Appellant explains
that,
leading to trial, Attorney Swisher indicated a conviction would
result in a 4-year sentence. Two separate sentencing data sheets
were entered into evidence. The first, dated October 23, 2018,
contained a guideline range indicating an offense gravity score
[OGS] of 9 and a prior record score [PRS] of 5. Based on this,
[Appellant’s] standard range [sentence] would be 48 months to
60 months[’] incarceration, which is consistent with
[Appellant’s] recollection of a 4[-]year minimum.
However, on the second sentencing data sheet dated November
2, 2018, the OGS was changed to 10. This change resulted in
a new standard range of 60 … to 72 months[’] incarceration.
Appellant’s Brief at 10-11.
Appellant argues that Attorney Swisher’s failure to recognize and correct
the error in Appellant’s OGS, and accurately advise Appellant about the
sentence he faced, “deprived [Appellant] of his ability to enter a plea as
opposed to [facing] the risk of trial.” Id. at 12. While Appellant acknowledges
that “the standard ranges of the sentencing guidelines do not change with a
plea,” he insists that because he went to trial, he received a lengthier sentence
because the judge heard the evidence against him and necessarily took into
account that a jury convicted Appellant. Id. at 11.
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Initially, Appellant does not explain why he would not have taken the
“risk” of proceeding to trial had he known his OGS was a ten, rather than a
nine. Indeed, the record indicates that Appellant would have still decided to
go to trial. For instance, at the PCRA hearing, Attorney Swisher testified that
“there were plea negotiations” and Appellant was “concern[ed] about an open
plea offer.” N.T. Hearing, 1/14/21, at 75. He recalled that Appellant “was
adamant about avoiding state time. Any plea that involved state time was
not acceptable to him.” Id. However, “[g]iven [Appellant’s] prior record score
and the nature of the charges, … the district attorney on the case[] was
absolutely against anything other than state time.” Id.
From this record, the PCRA court observed that
the Commonwealth had not presented any plea offer that
[Appellant] would [have] accept[ed] based on an OGS of nine, so
it is not reasonable to believe that the plea offers based on an
OGS of ten would have been acceptable to [Appellant]. Hence,
[Appellant] would have been left to pursue an open plea, but it
was testified to that [Appellant] did not wish to go that route.
Even assuming [Appellant] had taken an open plea based on an
OGS of nine and later learned the OGS was a ten, he would have
been sentenced based on the correct guidelines, or he would have
been permitted to withdraw his plea and go forward with a trial.
Therefore, [Appellant] ha[s] not established that the outcome of
[his] case, and sentencing specifically[,] would have changed had
the OGS been correctly determined at an earlier date.
PCO at 9. We discern no abuse of discretion or error of law in the court’s
decision. Therefore, Appellant’s first ineffectiveness claim is meritless.
In Appellant’s next issue, he contends that Attorney Swisher acted
ineffectively when he “pursued and argued a self-defense strategy with no
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reasonable basis and over the objection of [Appellant].” Appellant’s Brief at
14. Appellant insists that counsel had no grounds for pursuing a self-defense
claim, as counsel “had absolutely no evidence to present and the concept itself
was clearly misplaced.” Id.
In rejecting this IAC claim, the PCRA court reviewed the trial transcripts
and determined that
Attorney Swisher did not argue self-defense to the jury, nor was
a self-defense instruction provided to them. This [c]ourt found
evidence of self-defense had not been presented prior to closing
arguments, so an argument of self-defense could not and would
not be made to the jury. Since there is no evidence of a self-
defense strategy being presented to the jur[y], this claim has no
merit.
PCO at 5-6. Appellant has failed to prove that the court erred in this decision.
Aside from citing discussions between the court and Attorney Swisher,
Appellant does not point to anywhere in the record that counsel made a self-
defense argument to the jury. Thus, he has not demonstrated that counsel
ineffectively pursued a self-defense strategy.2
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2 We note that within this issue, Appellant also confusingly argues that counsel
erred by not advising him that, in order to prove a self-defense claim, he
would have to testify at trial. According to Appellant, “[d]espite Attorney
Swisher[’s] knowing evidence needed to be presented regarding the self-
defense [claim], he failed to produce any evidence of the same during his case
without [Appellant’s] testifying and clearly advised [Appellant] not to testify[,]
knowing he needed to present some type of evidence to warrant a self-defense
charge.” Appellant’s Brief at 18. Appellant cannot claim that counsel was
ineffective for pursuing a self-defense claim over his objection, and in the next
breath argue that counsel was ineffective for not presenting adequate
(Footnote Continued Next Page)
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In sum, we conclude that both of Appellant’s ineffectiveness claims are
meritless. Consequently, no relief is due on his third issue, in which he alleges
that the cumulative effect of counsel’s ostensible errors entitles him to a new
trial. Accordingly, the court properly dismissed Appellant’s PCRA petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/30/2021
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evidence to support an assertion of self-defense. Thus, this argument is
meritless.
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