Com. v. Holmes, S. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
STEVEN HOLMES :
:
Appellant : No. 277 EDA 2020
Appeal from the PCRA Order Entered December 12, 2019
In the Court of Common Pleas of Montgomery County Criminal Division
at No(s): CP-46-CR-0006549-2017
BEFORE: BENDER, P.J.E., SHOGAN, J., and STRASSBURGER, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED: MARCH 8, 2021
Appellant, Steven Holmes, appeals from the post-conviction court’s
December 12, 2019 order denying his timely-filed petition under the Post
Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. Appellant argues that
his guilty plea was not knowing, intelligent, and voluntary, and that his plea
counsel was ineffective for not objecting to the defective plea colloquy. After
careful review, we affirm.
The PCRA court summarized the pertinent facts and procedural history
of Appellant’s case, as follows:
[Appellant] pleaded guilty on April 9, 2018, to a single count of
voluntary manslaughter3 and received a negotiated sentence of 10
to 20 years in prison. He admitted that on July 30, 2017, in
Pottstown, Montgomery County, he got into a fistfight with
Diamonde Stone. []N.T., … Plea[/Sentencing], 4/9/18, [at] 14[.]
At some point during the fight, or after the two had been
separated, [Appellant] stabbed Stone with a knife. Id.
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* Retired Senior Judge assigned to the Superior Court.
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[Appellant] further testified that he had no lawful justification for
stabbing Stone[,] and that[] he was aware Stone had died. Id.
at 15. When the Commonwealth asked [Appellant] if the stabbing
had resulted because he was caught up in the heat of an
argument, [Appellant] stated:
Um, not exactly…. I was being pinned down by him and two
other fellows and my girlfriend was being stomped. Carolyn
Ayala, she was being stomped. And[,] in order to get the
beating stopped, I stabbed him.
Id.
3 18 Pa.C.S. § 2503(a)(1) (“A person who kills an individual
without lawful justification commits voluntary manslaughter
if at the time of the killing he is acting under a sudden and
intense passion resulting from serious provocation by ... the
individual killed.”). [Appellant] had been charged with
first[-]degree murder, third[-]degree murder[,] and
possession of an instrument of crime (“PIC”). As part of the
negotiated plea agreement, the Commonwealth amended
the PIC charge to voluntary manslaughter and nol prossed
the remaining two charges.
Later in the plea proceeding, this court recited the elements of
voluntary manslaughter and [Appellant] admitted to doing all of
the things necessary to commit the offense. Id. at 17. He also
stated during the plea proceeding that the victim “didn’t deserve
that.” Id. at 26.
[Appellant] did not file a post-sentence motion or a direct appeal,
thereby making his judgment of sentence final on or about May 9,
2018. He filed a pro se PCRA petition on or about November 19,
2018.
Appointed PCRA counsel filed an amended petition[,] claiming the
guilty plea colloquy was defective because [Appellant] had made
a statement suggestive of a self-defense claim, without any
follow-up by the prosecutor, plea counsel[,] or the court. The
amended petition further asserted that plea counsel had been
ineffective in failing to object to the colloquy.
The Commonwealth filed an answer and motion to dismiss[,]
arguing, inter alia, that [Appellant] admitted during questioning
by this court that he had done all the things necessary to commit
the offense of voluntary manslaughter. This court issued a
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[Pa.R.Crim.P. 907] notice of intent to dismiss and PCRA counsel
filed a response. In an abundance of caution, this court held a
hearing on the amended petition, at which [Appellant] initially
intended to rely on the notes of testimony from the guilty plea
proceeding[,] but later also presented testimony from himself.
Following the hearing, PCRA counsel provided this court with a
copy of Commonwealth v. Flanagan, 854 A.2d 489 (Pa. 2004),
which [Appellant] relied on for the propositions that there could
be no conceivable basis for plea counsel to have acquiesced to a
patently defective plea colloquy[,] and that a manifest injustice
occurs when a defendant enters a plea without a basic
understanding of the legal principles giving rise to criminal
responsibility. [PCRA] counsel further indicated he also was
relying on the other cases4 cited in his response to the notice of
intent to dismiss.
4 Commonwealth v. Roundtree, 269 A.2d 709 (Pa.
1970), Commonwealth v. Blackman, 285 A.2d 521 (Pa.
1971), Commonwealth v. Thompson, 351 A.2d 280 (Pa.
1976), Commonwealth v. Buhl, 396 A.2d 704 (Pa. Super.
1978); Commonwealth v. Guyton, 480 A.2d 330 (Pa.
Super. 1984), Commonwealth v. Fluharty, 632 A.2d 312(Pa. Super. 1993), and Commonwealth v. Jones, 640
A.2d 1330 (Pa. Super. 1994). The Commonwealth relied on
Commonwealth v. Mallory, 941 A.2d 686 (Pa. 2008), and
Commonwealth v. Spotz, 18 A.3d 244 (Pa. 2011), for the
proposition that the instant case does not involve per se
ineffectiveness and, as a result, the claim must be analyzed
under the three-prong test of arguable merit, lack of
reasonable basis and prejudice.
Upon consideration of the evidence presented at the PCRA
hearing, the case law cited by the parties and an independent
review of the record, this court denied the amended petition.
[Appellant] appealed[,] and subsequently complied with this
court’s directive to produce a concise statement of errors in
accordance with Pennsylvania Rule of Appellate Procedure
1925(b).
PCRA Court Opinion (PCO), 3/5/20, at 1-4. The PCRA court filed its Rule
1925(a) opinion on March 5, 2020.
Herein, Appellant states three issues for our review:
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I. Whether … [Appellant’s] assertion, during his guilty plea, of
facts which, if believed, would establish a viable claim of self-
defense, vitiates the knowing, intelligent, and voluntary nature of
… [Appellant’s] plea in the absence of any subsequent on-the-
record inquiry by the [c]ourt or counsel as to … [Appellant’s]
understanding of the availability of an affirmative defense?
II. Whether counsel was ineffective for acquiescing in the patently
defective guilty plea colloquy?
III. Whether Appellant waived his challenge to the validity of his
plea resulting from ineffective assistance of counsel by not filing a
post-sentence motion or direct appeal?
Appellant’s Brief at 4.
Initially, we note that:
“In reviewing the propriety of an order granting or denying PCRA
relief, an appellate court is limited to ascertaining whether the
record supports the determination of the PCRA court and whether
the ruling is free of legal error.” Commonwealth v. Johnson, …
966 A.2d 523, 532 ([Pa.] 2009). We pay great deference to the
findings of the PCRA court, “but its legal determinations are
subject to our plenary review.” Id.Commonwealth v. Matias, 63 A.3d 807, 810 (Pa. Super. 2013).
In Appellant’s first issue, he contends that his guilty plea was
unknowing, unintelligent, and/or involuntary because, after he made
statements indicating that he had a self-defense claim, the court failed to
“advise [him] that the defense, if established, would entitle him to an
acquittal, [and] also that his act of entering a plea precluded any further
opportunity of asserting his defense.” Appellant’s Brief at 13 (quoting
Commonwealth v. Thompson, 351 A.2d 280, 283 (Pa. 1976)). He also
maintains that his plea colloquy was defective because it did not set forth a
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sufficient factual basis to establish that he possessed the mens rea necessary
to be guilty of voluntary manslaughter. Id. at 17.
We agree with the PCRA court that Appellant waived these challenges
to the validity of his plea. See PCO at 5. Appellant failed to file with the trial
court a motion to withdraw his plea based on these alleged defects in the plea
colloquy. To be eligible for post-conviction relief, the petitioner must
demonstrate “[t]hat the allegation of error has not been previously litigated
or waived.” 42 Pa.C.S. § 9543(a)(3). “[A]n issue is waived if the petitioner
could have raised it but failed to do so before trial, at trial, during unitary
review, on appeal or in a prior state post[-]conviction proceeding.” 42 Pa.C.S.
§ 9544(b). Because here, Appellant could have raised his challenge to the
allegedly defective colloquy at the time of his plea, or in a post-sentence
motion to withdraw his plea, his failure to do so waives this claim for our
review.
Appellant’s next two issues are interrelated and, thus, we will address
them together. He argues that his plea counsel was ineffective for failing to
object to the ostensibly defective plea colloquy on the basis that he expressed
a potential self-defense claim, yet the court failed to advise him that he could
potentially be acquitted if he asserted such a defense at trial. He claims that
he has “established that a manifest injustice occurred by the trial court’s
acceptance of [his] plea,” and that counsel could have had no reasonable basis
for not objecting. Appellant’s Brief at 18. Appellant further asserts that he
did not waive this ineffectiveness claim for our review.
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Initially, we agree with Appellant that his issue was preserved by his
filing of a timely PCRA petition. In Commonwealth v. Holmes, 79 A.3d 562(Pa. 2013), our Supreme Court reaffirmed its prior holding in
Commonwealth v. Grant, 813 A.2d 726 (Pa. 2002), that, absent certain
circumstances, claims of ineffective assistance of counsel should be deferred
until collateral review under the PCRA. Holmes, 79 A.3d at 576. The specific
circumstances under which ineffectiveness claims may be addressed on direct
appeal are not present in the instant case. See id. at 577-78 (holding that
the trial court may address claim(s) of ineffectiveness where they are “both
meritorious and apparent from the record so that immediate consideration
and relief is warranted,” or where the appellant’s request for review of “prolix”
ineffectiveness claims is “accompanied by a knowing, voluntary, and express
waiver of PCRA review”). Thus, Appellant did not waive his ineffectiveness
claim by not raising it in a post-sentence motion or on direct appeal.
In addressing the merits of Appellant’s ineffectiveness argument, we are
mindful that,
[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.
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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. [An a]ppellant
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.
Commonwealth v. Rathfon, 899 A.2d 365, 369 (Pa. Super. 2006) (cleaned
up).
In support of his ineffectiveness argument, Appellant relies solely on
Flanagan. There, Flanagan pled guilty to murder and robbery. He claimed,
on collateral review, that his plea counsel had been ineffective by failing to
object to the defective plea colloquy on the basis that the court had provided
a “materially erroneous statement of the controlling law” in advising Flanagan
that his status as an accomplice made him vicariously liable for any crimes
committed by the principle.1 Id. at 501. The colloquy also failed to provide
an adequate factual basis for the plea. Id. at 500. Based on the totality of
these circumstances, our Supreme Court agreed with Flanagan that “the
colloquy supporting [his] pleas was defective, by reason of both an absence
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1 This was erroneous because a person must act with the requisite mens rea
to be convicted as an accomplice. See Flanagan, 854 A.2d at 501; 18 Pa.C.S.
§ 306(d).
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of a contemporaneous record of the factual basis for the plea and the
erroneous accomplice liability instruction.” Id.
The Flanagan Court then stressed that,
[i]n terms of the other requirement for relief based on
ineffectiveness, lack of reasonable basis, there is no reason that
we can conceive of which would justify plea counsel’s
acquiescence in the patently defective colloquy under review in
this case. Moreover, the PC[R]A court made an express credibility
finding rejecting plea counsel’s proffered excuse for not insisting
on an adequate colloquy.
Indeed, it is difficult to hypothesize a more concrete example of a
facially defective colloquy, and correspondingly legally unknowing
plea, than a circumstance in which the plea court causes the
[Appellant] to affirm a materially erroneous understanding of the
substantive law establishing criminal liability on the offenses
charged. By supplying the wrong legal framework against which
to assess the facts, the plea court exacerbated the effect of the
substantial deficiency arising out of its failure to adduce the factual
basis and rendered the plea unknowing on the face of the record
presented.
Id. at 502 (internal citations omitted).
Appellant now claims that, as in Flanagan, he has “established that a
manifest injustice occurred by the trial court’s acceptance of [his] plea,” and
he “is entitled to relief under the [PCRA] permitting him to withdraw his plea.”
Appellant’s Brief at 18. In rejecting Appellant’s argument, the PCRA court
focused on the fact that Appellant did not demonstrate his plea counsel acted
unreasonably by not objecting to the allegedly defective colloquy. The court
noted that, unlike in Flanagan, plea counsel had not been called to testify at
Appellant’s PCRA hearing. See PCO at 5. The court pointed out that Appellant
had received a favorable plea deal, by which he
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pleaded guilty to an amended charge of voluntary manslaughter
in exchange for the Commonwealth[’s] agreeing not to proceed
with more serious charges of first- and third-degree murder. He
also avoided the potential for a sentence of life imprisonment, had
he been found guilty of first[-]degree murder. As such, plea
counsel may have had a reasonable basis for not addressing
[Appellant’s] statement at the plea hearing, and [Appellant] did
not carry his burden at the PCRA hearing of proving otherwise.
Id. at 8-9.
On appeal, Appellant argues that, under the rationale of Flanagan, he
did not need call his counsel to testify to establish the unreasonableness of
her failure to object. According to Appellant, Flanagan holds that “[t]here
can be no reasonable basis for counsel to fail to object to a patently defective
colloquy[,] which facilitates a defendant’s entry of an unknowing and
unintelligent plea.” Appellant’s Brief at 20 (citing Flanagan, 854 A.2d at 502).
Appellant further insists that “plea counsel’s testimony at the evidentiary
hearing in Flanagan played no role in the Court’s decision[,]” and that “the
Flanagan Court made clear that there was nothing that counsel could testify
to[] which would constitute a reasonable basis for failing to object to the
patently defective colloquy.” Id.
Appellant’s reading of Flanagan is incorrect. The Flanagan Court did
not hold that an attorney can never have a reasonable basis for failing to
object to a defective plea colloquy. Rather, the Court held that there was no
conceivable reason that “would justify plea counsel’s acquiescence in the
patently defective colloquy under review in this case.” Flanagan, 854
A.2d at 502 (emphasis added). Were the defects in Appellant’s plea colloquy
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the same as those in Flanagan, we would find more compelling his argument
that his plea counsel’s testimony was unnecessary to proving her
ineffectiveness. However, unlike in Flanagan, Appellant does not claim that
the court misstated the law during his colloquy, and there was also a sufficient
factual basis for his plea to voluntary manslaughter.
In the latter regard, we reject Appellant’s assertion that the facts failed
to establish the mens rea for voluntary manslaughter. “A person who kills an
individual without lawful justification commits voluntary manslaughter if[,] at
the time of the killing[,] he is acting under a sudden and intense passion
resulting from serious provocation by … the individual killed[.]” 18 Pa.C.S. §
2503(a)(1). At Appellant’s plea colloquy, the court and Appellant had the
following exchange:
[The Court:] [The criminal information] reads as follows: That you
did kill Diamonde Stone without lawful justification while acting
under a sudden and intense passion resulting from serious
provocation by Diamonde Stone. Is that correct?
[Appellant:] That’s correct, sir.
[The Court:] Those are the facts you are pleading guilty to?
[Appellant:] I am.
N.T. Plea/Sentencing, 4/9/18, at 17. The facts admitted by Appellant were
sufficient to establish that he committed voluntary manslaughter. Therefore,
the defects in his colloquy were not the same as those in Flanagan.
Moreover, the PCRA court discerned that counsel
may have had a reasonable, strategic basis for not following up
on [Appellant’s] statement [indicating that he may have acted in
self-defense]. [Appellant] received a favorable plea agreement
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that removed the possibility of a first-degree murder conviction
and life in prison in exchange for a sentence of 10 to 20 years.
Without plea counsel’s testimony, however, [Appellant] did not
carry his burden of proving the lack of a reasonable basis.
Notably, and while not raised by the parties at the PCRA hearing,
a review of the transcript from [Appellant’s] preliminary hearing,
which was filed of record in this case, demonstrates that plea
counsel knew of [Appellant’s] claim that his girlfriend was being
assaulted during the incident. []N.T., Preliminary Hearing,
9/29/17, p. 23[.] This is not a case, therefore, where plea
counsel failed to act after [Appellant] testified to new information
that was suggestive of a possible defense. Instead, plea counsel
was aware of the possible defense[,] and [Appellant] did not carry
his burden of proving plea counsel lacked a reasonable basis for
her challenged inaction.
PCO at 10-11 (footnotes omitted). The court also found that Appellant “did
not present credible evidence at the PCRA hearing that he and his plea counsel
did not discuss the potential for a self-defense claim prior to the guilty plea
hearing.” Id. at 9 (footnote omitted).
Based on this record, we discern no error or abuse of discretion in the
PCRA court’s rationale. Appellant did not call his plea counsel to the stand at
the evidentiary hearing so she could explain her reasons for not objecting to
the alleged defect in his colloquy. More recently than Flanagan, our Supreme
Court has declared that “a lawyer should not be held ineffective without first
having an opportunity to address the accusation in some fashion.”
Commonwealth v. Koehler, 36 A.3d 121, 132 (Pa. 2012) (quoting
Commonwealth v. Colavita, 993 A.2d 874, 895 (Pa. 2010)). While there
may be cases where the absence of a reasonable strategy is uncontested,
there is “a strong preference that counsel be heard from before being found
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ineffective.” Colavita, 993 A.2d at 895. “The ultimate focus of an
ineffectiveness inquiry is always upon counsel, and not upon an alleged
deficiency in the abstract.” Id. at 896. The Colavita Court also stressed that,
it is particularly problematic to render an appellate finding of per
se unreasonableness in a case where the PCRA judge, whose
decision was under review, discerned a reasonable strategy from
the trial record alone and, for good measure, the PCRA judge also
presided at trial. At a minimum, these circumstances should at
least have given the panel pause before rendering its per
se finding.
Id. at 895.
In this case, the PCRA court, who also presided over Appellant’s trial,
surmised that counsel may have reasonably decided not to object to the
purportedly defective plea colloquy because she had secured a good plea deal
for Appellant, which removed the possibility of a murder conviction carrying a
life sentence. Additionally, counsel was aware, based on Appellant’s
preliminary hearing testimony, that he claimed he was attacked by the victim,
and Appellant did not convince the PCRA court that counsel never discussed a
potential self-defense claim with him prior to the plea colloquy. Given the
presumption that counsel acts effectively, we discern no error in the court’s
belief that counsel likely discussed Appellant’s version of events with him prior
to his decision to plead guilty. From that discussion, counsel may have
decided that Appellant did not have a viable claim of self-defense, thus
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explaining her failure to object to the colloquy after Appellant’s at-issue
statement.2
Clearly, unlike in Flanagan, we can conceive of a reasonable basis for
counsel to have not objected to Appellant’s plea colloquy. Thus, the record
supports the PCRA court’s decision that, because Appellant failed to call plea
counsel to the stand at the evidentiary hearing, he did not meet his burden of
proving that counsel acted unreasonably by not objecting to the allegedly
deficient plea colloquy. Appellant is incorrect that Flanagan excused him
from this burden of proof, where the alleged defect in his plea colloquy is not
the same as the defects in Flanagan. Therefore, the court did not err in
denying his PCRA petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/8/21
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2 For instance, as the Commonwealth points out, Appellant “did not say that
he did not provoke the encounter; he did not say that he thought he would
die or sustain serious injuries; [and] he did not say he could not retreat.”
Commonwealth’s Brief at 23.
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