Com. v. Grayson, R. ( 2020 )

J. A17039/20
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
RASHEEN GRAYSON, : No. 3320 EDA 2019
:
Appellant :
Appeal from the Order Entered October 30, 2019,
in the Court of Common Pleas of Delaware County
Criminal Division at No. CP-23-CR-0002674-2014
BEFORE: BOWES, J., McCAFFERY, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: Filed: August 25, 2020
Rasheen Grayson appeals from the October 30, 2019 order, entered in
the Court of Common Pleas of Delaware County, dismissing his first petition
filed pursuant to the Post Conviction Relief Act (“PCRA”).1 We affirm.
Following a jury trial, appellant was convicted of possession with intent
to deliver a controlled substance.2 Appellant was sentenced to 6-12 years’
imprisonment. Appellant filed a direct appeal challenging the sufficiency of
the evidence, after rejecting a plea bargain which would have granted him a
sentence of 2½-5 years’ imprisonment. This court affirmed the judgment of
1 42 Pa.C.S.A. §§ 9541-9546.
2 35 Pa.C.S.A. § 780–113(a)(30).
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sentence. See Commonwealth v. Grayson, 2016 WL 417400 (Pa.Super.
Feb. 2, 2016), appeal denied, 140 A.3d 11 (Pa. 2016).
On November 23, 2016, appellant filed pro se the instant PCRA petition.
PCRA counsel was appointed. The PCRA court sent notice of its intent to
dismiss appellant’s petition without a hearing on April 24, 2018. Appellant
filed an objection. Appellant’s PCRA petition was dismissed on July 9, 2018.
Appellant filed a timely notice of appeal and a Rule 1925(b) statement,
alleging that the PCRA court erred in dismissing his petition without an
evidentiary hearing. On appeal, this court remanded with instructions to hold
a limited evidentiary hearing, at which appellant’s trial counsel could testify
about the circumstances surrounding appellant’s rejection of the
Commonwealth’s plea deal. See Commonwealth v. Grayson, 213 A.3d
1047 (Pa.Super. 2019).3
The PCRA court held an evidentiary hearing on October 10, 2019,
wherein appellant’s trial counsel testified as to her representation of
appellant.4 As found by the PCRA court:
. . . [trial counsel] testified that she has been an
attorney for a total of nineteen years, eighteen of
which she has spent employed as an Assistant Public
Defender at the Delaware County Office of the Public
Defender. [She] testified that her entire area of
practice is criminal law. In her time as a Public
Defender, [she] has negotiated hundreds of pleas on
3 This court affirmed the legality of the sentence.
4 Appellant also testified.
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behalf of criminal defendants and has conducted
approximately 100 trials, bench and jury combined.
In regard to appellant, [trial counsel] testified that she
received an offer from the Commonwealth at the
pre-trial conference of 30-to-60 months in exchange
for [a]ppellant pleading guilty to the PWID charge. In
conjunction with her standard practice, [trial counsel]
testified that she went downstairs to the holding cells
and communicated that offer to [a]ppellant. In
addition, she explained the concept of sentencing
guidelines, including what the mitigated, standard,
and aggravated range meant as well as the difference
between misdemeanor and felony charges and their
degrees.
As she tells all of her clients, [trial counsel] told
[a]ppellant that it was his decision if he wanted to
proceed to trial or to accept the offer. However, she
did advise [a]ppellant that she had not received full
discovery yet and that it would be a good idea to wait
until that was complete before making that decision.
Appellant agreed that he wanted time for [trial
counsel] to receive full discovery. Pursuant to her
usual course of practice, [trial counsel] advised the
ADA that [a]ppellant would not be accepting the offer
that day; however, asked that the offer remain open
and requested that a trial date be selected. The case
was listed . . . for April 12, 2014.
At [that time, trial counsel] informed th[e PCRA c]ourt
that she had extensive conversations with [a]ppellant
in regard to his options to accept the plea or go to
trial. [Trial counsel] testified that she specifically
remembers going out to the prison to visit [a]ppellant
and review the guidelines; most particularly that the
mandatory minimums that would have been
applicable to [a]ppellant were most likely going to be
deemed unconstitutional. [Trial counsel] testified that
she explained to [a]ppellant the difference between a
mandatory minimum and a maximum sentence using
the physical sentencing guideline sheet specific to
[a]ppellant[] and the charges he was facing. In
addition, [trial counsel] pointed out the difference
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between a mitigated sentence, standard range
sentence, and an aggravated range sentence, which
was 42 months here. [She] also was aware that
[a]ppellant had an extensive criminal history, one of
the longer criminal histories she had ever seen.
When asked if she told [a]ppellant to reject the plea
and go to trial because, at most, he would only be
facing three years, [trial counsel] testified that she
does not recall ever telling [a]ppellant that, and, that
it would be out of her habit and routine practice to so
do. In her years of practice, [she] has been asked by
numerous clients if they should take the plea or go to
trial, and her answer is always that the decision is
theirs to make, and that trials can be 50/50, there is
no magic eight ball to use to predict the outcome. A
conversation [trial counsel] would have, and also did
have with [a]ppellant, was what potential trial
strategies would be, if there were any witnesses they
could call, and what the possible arguments would be
from the prosecution.
On cross, [trial counsel] agreed that she personally
did not put the statutory minimum and maximums on
the record but recalls speaking to [a]ppellant about
them.
PCRA court opinion, 12/11/19 at unnumbered 7-9 (citations to notes of
testimony omitted).
The PCRA court denied appellant’s PCRA petition on October 30, 2019.
Appellant timely appealed. On November 14, 2019, the PCRA court ordered
appellant to file a concise statement of matters complained of on appeal,
pursuant to Pa.R.A.P. 1925(b), and appellant timely complied. Thereafter,
the PCRA court filed its Rule 1925(a) opinion.
Appellant raises the following issue:
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Whether the PCRA Court erred in denying
[a]ppellant’s [a]mended [p]etition where the record
clearly showed that trial counsel was ineffective in
advising [a]ppellant regarding the plea offer of 2½ to
5 years (30 to 60 months) where trial counsel failed
to properly advise [a]ppellant regarding his maximum
sentence exposure of 20 years (240 months) if found
guilty, such that [a]ppellant believed, based on trial
counsel’s ineffective advice, that if found guilty he
could only be sentenced to 3 to 6 years (36 to
72 months), and based on that incorrect advice,
[a]ppellant rejected the plea offer of 2½ to 5 years
(30 to 60 months), which [a]ppellant would have
accepted if he had been effectively advised regarding
his maximum sentence exposure such that [a]ppellant
was prejudiced by counsel’s ineffectiveness in
violation of Lafler v. Cooper, 132 S.Ct. 1376 (2012)?
Appellant’s brief at 4 (bolding and italics added).
When reviewing the propriety of an order denying PCRA relief, this court
is limited to determining whether the evidence of record supports the
conclusions of the PCRA court and whether the ruling is free of legal error.
The PCRA court’s findings will not be disturbed unless there is no support for
them in the certified record. Commonwealth v. Lippert, 85 A.3d 1095,
1100 (Pa.Super. 2014), appeal denied, 95 A.3d 277 (Pa. 2014). If appellant
raises a question of law, our standard of review is de novo and our scope of
review is plenary. This court “may affirm a PCRA court’s decision on any
grounds if the record supports it.” See Commonwealth v. Rigg, 84 A.3d
1080 (Pa.Super. 2014) (citation omitted).
Regarding the effectiveness of counsel,
[I]n order to obtain relief based on [an ineffective
assistance of counsel] claim, a petitioner must
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establish: (1) the 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. Steckley, 128 A.3d 826, 831 (Pa.Super. 2015), citing
Commonwealth v. Reed, 971 A.2d 1216, 1221 (Pa. 2009). Further, “[t]rial
counsel is presumed to be effective, and a PCRA petitioner bears the burden
of pleading and proving each of the three factors by a preponderance of the
evidence.” Commonwealth v. Perry, 128 A.3d 1285, 1289 (Pa.Super.
2015) (citation omitted), appeal denied, 141 A.3d 479 (Pa. 2016).
Here, appellant acknowledges there was a plea offer of 2½ to 5 years’
incarceration which was relayed to him by trial counsel. However, appellant
argues that
trial counsel failed to properly advise him regarding
his maximum exposure at sentencing such that
[a]ppellant believed that if he were found guilty he
would only receive a sentence of 3 to 6 years’ . . . As
a result of trial counsel’s failure to properly advise him
of his maximum exposure, [a]ppellant [maintains he]
rejected the plea offer, which he would have taken if
he had been properly advise[d]. Appellant [claims he]
was prejudiced by trial counsel’s failure when he was
sentenced to . . . 6 to 12 year[’s incarceration]
followed by 3 years of probation.
Appellant’s brief at 13.
After reviewing the testimony of appellant and trial counsel, the PCRA
court made the following findings:
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Based upon the evidence presented at the hearing,
[the PCRA c]ourt does not find that [a]ppellant has
proved, by a preponderance of the evidence, that
(1) the claim has arguable merit, (2) counsel’s action
or inaction was not based upon a reasonable trial
strategy and (3) [a]ppellant suffered prejudice
because of counsel’s act or omission. [The PCRA
c]ourt finds the testimony of [trial counsel] to be
credible. [Trial counsel] has spent the last nineteen
years practicing criminal law, specifically at the trial
level, working with sentence guidelines on a regular
basis. It is her common practice and routine to lay
out the options for a defendant but never to advise
them as to whether or not they should accept a plea
offer or go to trial. Furthermore, the maximum
sentence and minimum sentences are clearly written
on the sentencing guideline form, which by
[a]ppellant’s own admission, [trial counsel] reviewed
with him. In addition, [the PCRA c]ourt finds it
incredible that [a]ppellant was so “shocked” by his
sentence yet the claim was never raised prior.
Appellant has been committing criminal offenses for
the better part of twenty years yet professes to have
never heard about a maximum sentence,[5] entirely
implausible to this Court. In addition, [trial counsel]
explained that she told [a]ppellant on the pretrial
conference date that she did not have all of the
discovery yet, so it would be best to wait and made
an educated decision, which matches the record, yet
[a]ppellant’s rendition was that [trial counsel] came
down and told him right away to go to trial and that
she would of [sic] back upstairs and get a date to
select a jury.
PCRA court opinion, 12/11/19 at unnumbered 12.6
5Appellant’s actual words were that he had never heard of a “statutory limit.”
(Notes of testimony, 10/10/19 at 18.)
6 We note that the PCRA court’s order stated that after review, it found “that
counsel’s representation of [p]etitioner was not ineffective. Counsel took
careful time with [p]etitioner to explain his options and the pros and cons of
either decision.” (PCRA court order, 10/30/19 at n.2.)
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After a review of the certified record and the testimony given at the
PCRA hearing, we find the aforementioned findings and conclusions of the
PCRA court were supported by the record.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/25/20
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