Com. v. Dorsey-Griffin, H. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
HYKEIM DORSEY-GRIFFIN :
:
Appellant : No. 1718 EDA 2022
Appeal from the PCRA Order Entered June 28, 2022
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0002417-2017
BEFORE: MURRAY, J., KING, J., and PELLEGRINI, J.*
MEMORANDUM BY KING, J.: FILED MAY 31, 2023
Appellant, Hykeim Dorsey-Griffin, appeals from the order entered in the
Philadelphia County Court of Common Pleas, which dismissed his first petition
filed under the Post Conviction Relief Act (“PCRA”).1 We affirm.
A prior panel of this Court set forth the relevant facts of this appeal as
follows:
On October 12, 2016, around 7:30 p.m., [Decedent] and
[Appellant’s Brother] engaged in a verbal altercation
regarding the sale of narcotics near the corner of Bristol and
Franklin Streets in the Hunting Park section of Philadelphia.
The altercation, which included shoving, was captured on
video. Appellant and two other men, who subsequently
gave statements to Philadelphia Police Detectives, observed
the altercation. The argument ceased and all individuals left
the scene.
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 42 Pa.C.S.A. §§ 9541-9546.
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At approximately 9:40 p.m., video surveillance showed
Appellant and Joel Medina approach the area of 4248 North
Franklin Street, where Decedent and three individuals were
sitting on a front step. They engaged in “pleasant
conversation” and there was no argument or fighting. After
a few minutes, Appellant turned to Decedent “and said
something to the effect of, ‘This is for my brother,’ or, ‘You
can’t eff with—F-U-C-K—with my brother.’” Appellant, who
was within three feet of Decedent, revealed a firearm and
fired 12 shots at Decedent. Decedent was hit 11 times,
including in the head. Appellant and Medina then walked
away.
Medina, who initially approached the group with Appellant,
as well as one of the men on the front steps gave statements
to Philadelphia Police detectives and identified Appellant as
the shooter. After the shooting, Medina asked Appellant
why he shot Decedent, to which Appellant replied, “fuck
him.” The Philadelphia Medical Examiner’s Office
determined Decedent died from multiple gunshot wounds
and the manner of death was homicide. The Philadelphia
Firearms Identification Unit examined ballistic evidence
recovered from the crime scene and determined that all
twelve fired cartridge casings, as well as projectiles and
fragments taken from Decedent’s body, were fired from the
same gun.
On January 8, 2017, Appellant was charged with murder and
related offenses. On May 14, 2018, Appellant entered into
a negotiated guilty plea to third-degree murder and persons
not to possess firearms. During this guilty plea hearing,
Appellant and the trial court had the following exchange:
The Court: … Do you want to plead guilty?
[Appellant]: It doesn’t even matter.
The Court: No. It matters. It really does. If
you don’t want to plead guilty, I’m not going to take
your guilty plea obviously. All right?
[Appellant]: Yeah.
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The Court: What is the “yeah” about?
[Appellant]: It’s a yeah.
The Court: To which one?
[Appellant]: Pleading guilty.
The Court: Which question? Do you want to
plead guilty?
[Appellant]: Yeah.
The Court: Okay. Because you can go on with
your jury trial. Do you understand that?
[Appellant]: Yeah.
* * *
The Court: The agreed to sentence in this case
is a total of 25 to 50 years. And the way it’s going to
be split up is you will receive 20 to 40 years on the
third-degree murder conviction, then five to ten years
to run consecutively on the Violation of the Uniform
Firearms Act conviction. So “consecutively” means
that the five starts after the 20 ends, so that brings it
to a total of 25 to 50 years. Do you understand that?
[Appellant]: Yeah.
On June 7, 2018, the trial court conducted a sentencing
hearing. At the beginning of the hearing, Appellant stated
he “took the [plea] deal under duress.” When the court
asked what the duress was, Appellant stated, “It’s a couple
different things.” The trial court advised Appellant, “You
don’t have to plead guilty under duress,” and that he could
file a motion to withdraw his plea, which the court would
consider against any response by the Commonwealth. The
following exchange occurred:
The Court: Okay. I mean, do you want to file a
petition to withdraw your guilty plea?
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[Appellant]: We can move forward.
The Court: With your sentencing?
[Appellant]: Uh-huh. Yes.
The Court: Are you sure about that? Because
you really can have a jury trial. And it’s not a trick.
This is not a trick question.
[Appellant]: No. I know. I understand.
The Court: You can have a waiver trial, if they
agree. That means I hear the case. You can have a
jury trial. Your right is actually to have a jury trial.
You can just say, “No, Judge. I want my jury trial.”
And I don’t have a problem with that.
[Appellant]: We can move forward with
sentencing.
The trial court then imposed the negotiated sentence of 20
to 40 years’ incarceration for third-degree murder, and a
consecutive 5 to 10 years’ incarceration for the firearms
charge, for an aggregate term of 25 to 50 years’
incarceration. Appellant did not file any post-sentence
motions.
Commonwealth v. Dorsey-Griffin, No. 1871 EDA 2018, unpublished
memorandum at 1-5 (Pa.Super. filed July 7, 2020), appeal denied, 662 Pa.
495, 240 A.3d 112 (2020) (internal emphasis, footnote, and record citations
omitted). This Court affirmed the judgment of sentence, and our Supreme
Court denied Appellant’s petition for allowance of appeal on October 15, 2020.
Appellant timely filed a pro se PCRA petition on December 28, 2020.
The court appointed counsel, who filed an amended PCRA petition on October
29, 2021. In the amended petition, Appellant argued that plea counsel was
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ineffective for failing “to ensure that the plea was entirely voluntary and
knowing.” (Amended PCRA Petition, filed 10/29/21, at 8). The
Commonwealth filed a motion to dismiss the petition on March 14, 2022. On
May 25, 2022, the court issued Pa.R.Crim.P. 907 notice of its intent to dismiss
Appellant’s petition without a hearing. Appellant did not file a response to the
Rule 907 notice, and the court dismissed the petition on June 28, 2022.
Appellant timely filed a notice of appeal on July 1, 2022. On July 18,
2022, the court ordered Appellant to file a Pa.R.A.P. 1925(b) concise
statement of errors complained of on appeal. Appellant timely filed his Rule
1925(b) statement on July 24, 2022.
Appellant now raises one issue for this Court’s review:
Did the PCRA Court err in finding that Appellant’s rights
pursuant to the Sixth and Fourteenth Amendments of the
U.S. Constitution and Article 1, sec. 9 of the Pennsylvania
Constitution were not violated by counsel’s ineffective
failure to ensure that Appellant’s decision to take a plea was
entirely voluntary?
(Appellant’s Brief at 2).
“Our standard of review of [an] order granting or denying relief under
the PCRA calls upon us to determine whether the determination of the PCRA
court is supported by the evidence of record and is free of legal error.”
Commonwealth v. Parker, 249 A.3d 590, 594 (Pa.Super. 2021) (quoting
Commonwealth v. Barndt, 74 A.3d 185, 191-92 (Pa.Super. 2013)). “The
PCRA court’s factual findings are binding if the record supports them, and we
review the court’s legal conclusions de novo.” Commonwealth v. Prater,
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256 A.3d 1274, 1282 (Pa.Super. 2021), appeal denied, ___ Pa. ___, 268 A.3d
386 (2021).
On appeal, Appellant emphasizes that his relationship with plea counsel
“deteriorated to the point where there was little to no productive
communication between them.” (Appellant’s Brief at 13). Appellant contends
that he had one conversation with counsel prior to the guilty plea hearing. At
that time, Appellant asserts that counsel did not discuss the Commonwealth’s
evidence. Rather, “counsel simply told Appellant to take the plea” without
exploring the “pros and cons” of proceeding to a trial. (Id. at 15). Appellant
insists that “he only agreed to take the plea because he had been pressured
to do so.” (Id.) Under these circumstances, Appellant argues that counsel’s
ineffectiveness caused him to enter an involuntary and unknowing plea.
Appellant concludes that he is entitled to relief, and this Court must either
vacate his guilty plea or remand the matter for an evidentiary hearing on plea
counsel’s ineffectiveness. We disagree.
“Counsel is presumed to have rendered effective assistance.”
Commonwealth v. Hopkins, 231 A.3d 855, 871 (Pa.Super. 2020), appeal
denied, 663 Pa. 418, 242 A.3d 908 (2020).
[T]o establish a claim of ineffective assistance of counsel, a
defendant 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. The burden is on the defendant to
prove all three of the following prongs: (1) the underlying
claim is of arguable merit; (2) that counsel had no
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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.
Commonwealth v. Sandusky, 203 A.3d 1033, 1043 (Pa.Super. 2019),
appeal denied, 654 Pa. 568, 216 A.3d 1029 (2019) (internal citations and
quotation marks omitted). The failure to satisfy any prong of the test for
ineffectiveness will cause the claim to fail. Commonwealth v. Chmiel, 612
Pa. 333, 30 A.3d 1111 (2011).
“The threshold inquiry in ineffectiveness claims is whether the
issue/argument/tactic which counsel has foregone and which forms the basis
for the assertion of ineffectiveness is of arguable merit[.]” Commonwealth
v. Smith, 167 A.3d 782, 788 (Pa.Super. 2017), appeal denied, 645 Pa. 175,
179 A.3d 6 (2018) (quoting Commonwealth v. Pierce, 537 Pa. 514, 524,
645 A.2d 189, 194 (1994)). “Counsel cannot be found ineffective for failing
to pursue a baseless or meritless claim.” Commonwealth v. Poplawski,
852 A.2d 323, 327 (Pa.Super. 2004) (quoting Commonwealth v. Geathers,
847 A.2d 730, 733 (Pa.Super. 2004)).
“Once this threshold is met we apply the ‘reasonable basis’ test to
determine whether counsel’s chosen course was designed to effectuate his
client’s interests.” Commonwealth v. Kelley, 136 A.3d 1007, 1012
(Pa.Super. 2016) (quoting Pierce, supra at 524, 645 A.2d at 194-95).
The test for deciding whether counsel had a reasonable
basis for his action or inaction is whether no competent
counsel would have chosen that action or inaction, or, the
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alternative, not chosen, offered a significantly greater
potential chance of success. Counsel’s decisions will be
considered reasonable if they effectuated his client’s
interests. We do not employ a hindsight analysis in
comparing trial counsel’s actions with other efforts he may
have taken.
Commonwealth v. King, 259 A.3d 511, 520 (Pa.Super. 2021) (quoting
Sandusky, supra at 1043-44).
“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. [A] reasonable probability is a
probability that is sufficient to undermine confidence in the outcome of the
proceeding.” Commonwealth v. Spotz, 624 Pa. 4, 33-34, 84 A.3d 294, 312
(2014) (internal citations and quotation marks omitted). “[A] criminal
defendant alleging prejudice must show that counsel’s errors were so serious
as to deprive the defendant of a fair trial, a trial whose result is reliable.”
Hopkins, supra at 876 (quoting Commonwealth v. Chambers, 570 Pa. 3,
22, 807 A.2d 872, 883 (2002)).
“Allegations of ineffectiveness in connection with the entry of a guilty
plea will serve as a basis for relief only if the ineffectiveness caused the
defendant to enter an involuntary or unknowing plea.” Kelley, supra at 1013(quoting Commonwealth v. Moser, 921 A.2d 526, 531 (Pa.Super. 2007)).
“In order to make a knowing and intelligent waiver, the individual must be
aware of both the nature of the right and the risks and consequences of
forfeiting it.” Commonwealth v. Houtz, 856 A.2d 119, 122 (Pa.Super.
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2004) (quoting Commonwealth v. Payson, 723 A.2d 695, 700 (Pa.Super.
1999)).
“In determining whether a plea is valid, the court must examine the
totality of circumstances surrounding the plea.” Commonwealth v. Hart,
174 A.3d 660, 664-65 (Pa.Super. 2017). “A valid plea colloquy must delve
into six areas: 1) the nature of the charges, 2) the factual basis of the plea,
3) the right to a jury trial, 4) the presumption of innocence, 5) the sentencing
ranges, and 6) the plea court’s power to deviate from any recommended
sentence.” Commonwealth v. Reid, 117 A.3d 777, 782 (Pa.Super. 2015)
(quoting Commonwealth v. Morrison, 878 A.2d 102, 107 (Pa.Super.
2005)). “Furthermore, nothing in [Pa.R.Crim.P. 590] precludes the
supplementation of the oral colloquy by a written colloquy that is read,
completed and signed by the defendant and made a part of the plea
proceedings.” Commonwealth v. Bedell, 954 A.2d 1209, 1212-13
(Pa.Super. 2008), appeal denied, 600 Pa. 742, 964 A.2d 893 (2009). See
also Pa.R.Crim.P. 590, Comment.
“A person who elects to plead guilty is bound by the statements he
makes in open court while under oath and he may not later assert grounds for
withdrawing the plea which contradict the statements he made at his plea
colloquy.” Commonwealth v. Pier, 182 A.3d 476, 480 (Pa.Super. 2018)
(quoting Commonwealth v. Pollard, 832 A.2d 517, 523 (Pa.Super. 2003)).
“[T]he law does not require that a defendant be pleased with the outcome of
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his decision to plead guilty. The law requires only that a defendant’s decision
to plead guilty be made knowingly, voluntarily, and intelligently.”
Commonwealth v. Jabbie, 200 A.3d 500, 506 (Pa.Super. 2018). Further,
“[t]he entry of a negotiated plea is a ‘strong indicator’ of the voluntariness of
the plea.” Reid, supra at 783 (quoting Commonwealth v. Myers, 642 A.2d
1103, 1106 (Pa.Super. 1994)).
Instantly, the PCRA court reviewed the record and determined that
counsel did not pressure Appellant into entering the plea.
[T]he colloquy of [Appellant] fully complied with the
requirements cited above. The charges to which [Appellant]
pleaded guilty, as well as the factual basis for the plea, was
fully set out on the record. Additionally, [Appellant]’s right
to a jury trial, and what it entailed, were fully explained to
him during the guilty plea colloquy. [Appellant] was made
aware of the potential ranges of sentences and fines he
faced should he choose not [to] plead guilty, and the court
strongly emphasized that it was not required to accept
[Appellant’s] plea, especially if he was pleading under
duress. Importantly, when the court asked [Appellant]
during his colloquy if anyone threatened him or promised
him anything to force him to plead guilty, [Appellant]
answered, “No.” At the time of sentencing, when
[Appellant] announced that he pleaded guilty under duress,
the court asked him what duress he faced and [Appellant]
could not name anything specific, and simply stated, “It’s a
couple different things.” As such, the court did not find that
[Appellant] entered his guilty plea under duress.
(PCRA Court Opinion, filed 8/26/22, at 5) (record citations omitted). Our
review of both the written and oral colloquies confirms the court’s analysis.
Although Appellant now complains that plea counsel did not advise him
about the “pros and cons” of going to trial, the record suggests otherwise.
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Appellant first announced his dissatisfaction with counsel at the beginning of
the plea hearing, claiming “he don’t care what happens to me.” (N.T. Plea
Hearing, 5/14/18, at 5). The court asked for a response to Appellant’s
allegation, which counsel denied as follows:
What I try to do is I lay out the three options again: the
plea, the voluntary intoxication [defense,] and the claim of
innocence. And I tried to explain for, probably, the 50th time
that I can’t go—if he doesn’t want to plea, which to this
point, he hasn’t told me he is rejecting the
[Commonwealth’s offer of] 25 to 50. Assuming that is off
the table, what I tried to explain was that I can’t go
voluntary intoxication and innocence. The voluntary
intoxication is an affirmative defense.
(Id. at 6). Thereafter, the court provided counsel with one more opportunity
to speak to Appellant before Appellant decided on the entry of a plea. (See
id. at 8). Almost three hours later, Appellant returned to the courtroom and
entered the plea. (Id. at 9).
Thereafter, Appellant confirmed he understood that his execution of a
written colloquy demonstrated the voluntariness of his plea:
The Court: If you complain later on to the Superior Court
and you said to them, you know, my plea wasn’t voluntary,
they would take a look at this [written colloquy] form and
they would see that you signed it. People don’t usually sign
legal documents this important that they didn’t go through
with their lawyer and that they didn’t fully understand. So
by signing the form, that tends to show that your plea is
voluntary. That is one thing they would look at, in other
words, and say, “Well, you signed that legal document
voluntarily.” Do you understand that?
[Appellant]: Yeah.
(Id. at 20).
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While Appellant might not be pleased with the outcome of his decision
to plead guilty, the law requires only that he made a knowing, voluntary, and
intelligent decision to plead guilty. See Jabbie, supra. Appellant is now
bound by the statements made in the oral and written colloquies, which
indicate that he wanted to enter the plea. See Pier, supra. Under the totality
of these circumstances, we agree with the PCRA court’s conclusion that
Appellant’s ineffectiveness claim lacks arguable merit. See Smith, supra.Accordingly, we affirm the order dismissing Appellant’s PCRA petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/31/2023
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