Com. v. Smith, D. ( 2022 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
DAVON LAMAR SMITH :
:
Appellant : No. 654 WDA 2021
Appeal from the PCRA Order Entered March 26, 2021
In the Court of Common Pleas of Blair County
Criminal Division at No(s): CP-07-CR-0002611-2013
BEFORE: PANELLA, P.J., OLSON, J., and SULLIVAN, J.
MEMORANDUM BY PANELLA, P.J.: FILED: June 6, 2022
Davon L. Smith appeals from the order entered in the Blair County Court
of Common Pleas on March 26, 2019, dismissing his petition filed pursuant to
the Post Conviction Relief Act (“PCRA”), 42 Pa. C.S.A. §§ 9541-9546. Smith
argues the PCRA court erred in dismissing his claims of ineffective assistance
of trial counsel for failing to seek enforcement of a plea agreement. After
careful review, we affirm.
In January 2014, Smith was charged with violations of the Uniform
Firearms Act1. Three months later, Smith appeared for his scheduled
preliminary hearing. At that time, Smith and the Commonwealth reached an
agreement where Smith would plead guilty to three separate cases, including
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1 18 Pa.C.S.A. §§ 6101-6127.
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the instant case, in exchange for a recommended aggregate sentence of three
and one-half to fifteen years’ incarceration for all three cases. Pursuant to the
agreement, Smith waived his rights to a preliminary hearing.
Two months after that, and prior to final disposition, the Commonwealth
withdrew the plea offer after Smith was charged in a fourth case. The
Commonwealth extended a revised plea offer for a global resolution of all four
pending cases. Plea negotiations continued back and forth, however neither
side was able to reach a new plea agreement. Accordingly, a jury trial was
scheduled.
On May 1, 2015, after a jury trial, Smith was convicted of possession of
a firearm by a prohibited person and carrying a firearm without a license. The
trial court later sentenced Smith to five and one-half to eleven years’
incarceration. Smith filed a post-sentence motion to reconsider the sentence,
which the trial court denied. We affirmed on direct appeal.
On August 10, 2017, Smith filed a timely pro se PCRA petition. Counsel
was appointed and filed an amended petition. After several continuances, an
evidentiary hearing was held on March 15, 2019. By agreement of both
parties, the PCRA court incorporated the record from a separate evidentiary
hearing held on March 1, 2019. After consideration, the PCRA court entered
an order denying and dismissing Smith’s PCRA petition.
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On November 20, 2020, Smith filed a pro se motion to reinstate
appellate rights nunc pro tunc. After a hearing, the PCRA court granted Smith’s
motion and accordingly reinstated Smith’s appeal rights.
New counsel was appointed and subsequently filed a timely nunc pro
tunc appeal from the PCRA court’s March 26, 2019 order which dismissed
Smith’s PCRA petition.
Smith raises a single issue on appeal as follows:
Whether [trial] counsel provided ineffective assistance in failing to
file a petition with the trial court seeking to enforce the plea
agreement made in exchange for a waiver of [Smith]’s
constitutional right to a preliminary hearing, asserting, in
substance, that [Smith] and the Commonwealth had exchanged
an offer and an acceptance, and that there had been both
consideration and detrimental reliance; and that the
Commonwealth was duty bound to fulfill its contractual obligation.
Appellant’s Brief, at 4.
“The standard of review for an order denying post-conviction relief is
limited to whether the record supports the PCRA court’s determination, and
whether that decision 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. Walters, 135 A.3d 589, 591 (Pa. Super. 2016) (citation
omitted).
Smith raises a claim of ineffective assistance of trial counsel. We
presume counsel is effective, and an appellant bears the burden to prove
otherwise. See Commonwealth v. Bennett, 57 A.3d 1185, 1195 (Pa. 2012).
The test for ineffective assistance of counsel is the same under both the
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Federal and Pennsylvania Constitutions. See Strickland v. Washington, 466
U.S. 668, 687-88 (1984); Commonwealth v. Kimball, 724 A.2d 326, 330-
332 (Pa. 1999). An appellant must demonstrate: (1) his underlying claim is of
arguable merit; (2) the particular course of conduct pursued by counsel did
not have some reasonable basis designed to effectuate his interests; and (3)
but for counsel’s ineffectiveness, there is a reasonable probability that the
outcome of the proceedings would have been different. See Commonwealth
v. Solano, 129 A.3d 1156, 1162-63 (Pa. 2015). A failure to satisfy any prong
of the test for ineffectiveness will require rejection of the claim. See id. at
1163.
Smith asserts trial counsel was ineffective for failing to seek
enforcement of the original plea deal. Specifically, Smith contends that since
he gave up his right to a preliminary hearing, trial counsel should have sought
specific performance of the plea agreement.
Pennsylvania Rule of Criminal Procedure 590, which governs pleas and
plea agreements, provides, in relevant part:
(A) Generally
(1) Pleas shall be taken in open court.
(2) A defendant may plead not guilty, guilty, or, with the
consent of the judge, nolo contendere. If the defendant
refuses to plead, the judge shall enter a plea of not guilty
on the defendant's behalf.
(3) The judge may refuse to accept a plea of guilty or nolo
contendere, and shall not accept it unless the judge
determines after inquiry of the defendant that the plea is
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voluntarily and understandingly tendered. Such inquiry shall
appear on the record.
(B) Plea agreements.
(1) At any time prior to the verdict, when counsel for both
sides have arrived at a plea agreement, they shall state on
the record in open court, in the presence of the defendant,
the terms of the agreement…
(2) The judge shall conduct a separate inquiry of the
defendant on the record to determine whether the
defendant understands and voluntarily accepts the terms of
the plea agreement on which the guilty plea or plea of nolo
contendere is based.
Pa.R.Crim.P. 590.
This Rule has been interpreted by our [S]upreme [C]ourt to mean
that no plea agreement exists unless and until it is presented to
the court. Our [S]upreme [C]ourt has also held that [w]here a
plea agreement has been entered of record and has been accepted
by the trial court, the [Commonwealth] is required to abide by the
terms of the plea agreement. … However, prior to the entry of a
guilty plea, the defendant has no right to specific performance of
an ‘executory’ agreement.
Commonwealth v. McElroy, 665 A.2d 813, 816 (Pa. Super. 1995) (citations
and internal quotation marks omitted; emphasis in original).
Here, the original plea agreement had neither been entered of record
nor accepted by the trial court prior to revocation and was, therefore, not
enforceable. Smith concedes the Commonwealth is able to “revoke an offer
prior to the Court accepting such an offer on the record”. Appellant’s Brief, at
21. However, Smith argues the Commonwealth is bound to enforcement of a
plea offer when the Commonwealth induces action of a defendant in reliance
on the offer, and the defendant acts on those actions. See id. In support of
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this claim, Smith only cites to cases in which our Court has enforced the terms
of a plea agreement after the plea agreement had been entered in the record
and accepted by the trial court.2 Neither entry nor acceptance occurred here.
We acknowledge that this Court has previously carved out a separate,
but narrow, avenue for specific enforcement of a plea offer where fundamental
fairness commands it. See Commonwealth v. Mebane, 58 A.3d 1243 (Pa.
Super. 2012). In Mebane, the Commonwealth extended a plea offer to
Mebane, who accepted it. At that time, neither party was aware of the trial
court's ruling on a pending suppression motion. At some point after Mebane
accepted the plea offer, but before the guilty plea hearing, the Commonwealth
learned that the trial court had denied Mebane's suppression motion. The
Commonwealth did not convey this information to Mebane.
On the day set for the guilty plea hearing, the Commonwealth, armed
with the knowledge that the trial court had not suppressed incriminating
evidence, withdrew its plea offer. Ultimately, this Court determined that the
Commonwealth acted inappropriately in not disclosing that the trial court had
denied Mebane's suppression motion and, therefore, found that enforcement
of the plea offer was in the interest of justice. See Mebane, 58 A.3d at 1249.
Specifically, we found that in light of the Commonwealth's bad faith in
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2 See Commonwealth v. Zuber, 353 A.2d 441 (Pa. 1976); see also
Commonwealth v. Kroh, 654 A.2d 1168 (Pa. Super. 1995).
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revoking the plea offer, Mebane was entitled to the benefit of the withdrawn
plea bargain.
The same circumstances do not exist in this case. There are simply no
special circumstances here that would warrant enforcement of a plea
agreement that had not yet been accepted by the trial court. Here, the
Commonwealth timely communicated its intention to withdraw the offer and
explained the reasoning for the withdrawal. The Commonwealth withdrew the
plea offer in good faith for legitimate reasons; specifically, the fact that Smith
was charged under a fourth case. Further, the Commonwealth continued plea
negotiations with Smith in order to try to come to a new agreement that would
incorporate the additional case. No extraordinary circumstances existed here
that would have permitted the trial court to exercise its discretion to direct the
Commonwealth to honor a plea agreement that had not yet been effectuated
by colloquy.
Accordingly, the standard rule applies. Since the agreement was never
presented to and accepted by the trial court prior to the Commonwealth
properly withdrawing the offer, Smith is not entitled to enforcement of the
agreement. See Commonwealth v. Martin, 5 A.3d 177, 196 (Pa. 2010). As
such, Smith has not satisfied the arguable merit prong of the test for
ineffective assistance. See Commonwealth v. Loner, 836 A.2d 125, 132
(Pa. Super. 2003) (en banc) (finding counsel cannot be deemed ineffective for
failing to pursue a meritless claim).
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To the extent Smith contends he detrimentally relied on the initial plea
agreement when he waived his preliminary hearing, we conclude he has failed
to establish his waiver was to his detriment. “The purpose of a preliminary
hearing is to avoid the incarceration or trial of a defendant unless there is
sufficient evidence to establish a crime was committed and the probability the
defendant could be connected with the crime.” Commonwealth v. Tyler, 587
A.2d 326, 328 (Pa. Super. 1991). Since Smith does not allege his innocence
of the crimes, but rather seeks the imposition of a different sentence for his
plea of guilt, he cannot establish that he suffered any harm for waiving his
preliminary hearing. He therefore is unable to establish arguable merit for this
reason as well.
Because Smith has failed to satisfy the test for ineffectiveness, he is not
entitled to relief.
Order affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/6/2022
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