Com. v. Scott, T. ( 2023 )

J-S31009-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TYREESE SCOTT :
:
Appellant : No. 308 EDA 2022
Appeal from the PCRA Order Entered November 9, 2021
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0004603-2014
BEFORE: OLSON, J., STABILE, J., and McLAUGHLIN, J.
MEMORANDUM BY OLSON, J.: FILED OCTOBER 12, 2023
Appellant, Tyreese Scott, appeals from the order entered on November
9, 2021, which denied him relief on his petition filed under the Post Conviction
Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.
The trial court ably summarized the facts underlying Appellant’s
convictions:
On February 17, 2014, at approximately 11:15 p.m., Police
Officers Anthony Santulli, Brian Nolan, Sergeant Waddell, and
Sergeant Jose Medina were conducting a pedestrian stop at
the intersection of Tenth and Cumberland Streets in the city
and county of Philadelphia, when they heard gunshots
coming from the location of Thirteenth and Cambria Streets.
En route to that location via a police vehicle, Officers Santulli
and Nolan observed a 2004 Silver Pontiac Grand Prix ignore
a stoplight and cross the intersection at Twelfth and Somerset
Streets. Co-defendant Gregory Nash drove the Pontiac, with
co-defendant Vincent McClenny in the front passenger seat,
and [Appellant] in the rear passenger seat.
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Officers Santulli and Nolan turned left on Somerset, where
they followed the Pontiac westbound and shined a spotlight
into its rear windshield. As the light shone, Officer Nolan
observed [Appellant] holding a silver barreled handgun,
which he attempted to conceal in the light housing inside the
roof of the car. Upon seeing the gun, the officers activated
their lights, and a chase ensued.
[Appellant’s] vehicle turned southbound towards Lehigh
Avenue, where it turned eastbound towards Ninth Street, a
northbound one-way street. With Officers Santulli, Nolan,
Waddell, and Medina now in pursuit, the Pontiac turned
southbound on Ninth Street, and traveled the wrong way
before making a sudden left turn on Norris Street. There,
[Appellant], Nash, and McClenny exited the vehicle and
attempted to evade the police by foot. After a brief chase,
Sergeant Medina apprehended [Appellant], while Officers
Santulli and Nolan apprehended Nash and McClenny,
respectively.
After arresting McClenny, Officer Nolan returned to the
Pontiac and looked into the light housing in the rear of the
vehicle, where he observed three pistols hidden inside.
Detective Richard Bova, the assigned detective in this matter,
received a search warrant for the Pontiac and recovered a
loaded black Glock 26 40-caliber, a Ruger P-89
9[-millimeter], and a Ruger P-95 9[-millimeter] handgun,
along with [13] small plastic baggies of marijuana. Officer
Lawrence Flager of the Firearms Investigative Unit examined
each pistol and determined that they were operable.
At trial, the Commonwealth presented a Certificate of
Non-Licensure indicating that [Appellant] did not have a valid
license to possess a firearm at the time of the incident, and
the parties stipulated that [Appellant] had a prior
enumerated felony conviction for the purposes of [18
Pa.C.S.A. § 6105 (persons not to possess firearms)].
[Appellant] elected to take the stand and testified that he
owned the 2004 Pontiac Grand Prix used in the chase, that
he drove the vehicle, that he knew that his co-defendants
were armed, but that he did not carry a firearm that night.
Trial Court Opinion, 12/18/17, at 2-3 (citations omitted).
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Following a bench trial, Appellant was found guilty of criminal
conspiracy, persons not to possess firearms, carrying a firearm without a
license, carrying a firearm on the public streets of Philadelphia, and possessing
a small amount of marijuana.1 On December 12, 2016, the trial court
sentenced Appellant to serve an aggregate term of six to 12 years in prison,
followed by five years of probation, for his convictions. We affirmed
Appellant’s judgment of sentence on November 2, 2018 and the Pennsylvania
Supreme Court denied Appellant’s petition for allowance of appeal on April 23,
2019. Commonwealth v. Scott, 201 A.3d 812 (Pa. Super. 2018)
(unpublished memorandum) at 1-12, appeal denied, 207 A.3d 288 (Pa. 2019).
On October 25, 2019, Appellant filed a timely, pro se PCRA petition. The
PCRA court appointed counsel to represent Appellant during the proceedings
and counsel filed an amended petition on Appellant’s behalf. Within the
amended petition, Appellant claimed that his “plea-stage counsel [(hereinafter
“Plea Counsel”)] was ineffective for failing to convey a plea offer prior to the
commencement of trial.” See Amended PCRA Petition, 6/2/21, at 4.
On August 30, 2021, the PCRA court held a hearing on Appellant’s
claim.2 As the PCRA court thoroughly explained:
____________________________________________
1 18 Pa.C.S.A. §§ 903, 6105(a)(1), 6106(a)(1), and 6108 and 35 P.S.
§ 780-113(a)(31), respectively.
2 We note that Plea Counsel passed away prior to Appellant’s PCRA hearing.
PCRA Court Opinion, 4/6/22, at 2 n.1.
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Appellant asserts in his petition that the Commonwealth
offered a plea deal of [18 to 36] months' incarceration, but
that due to [Plea Counsel’s] inadequate representation, he
could not properly evaluate the Commonwealth's offer.
Appellant claimed that [Plea Counsel] incorrectly advised him
by letter that he faced a mandatory minimum sentence of
three [] years' incarceration, that he had a prior record score
of zero [], and that the sentencing guidelines ranged from
[22 to 36] months' incarceration. Appellant attached [Plea
Counsel’s] June 19, 2014 letter to his petition. The letter
states in pertinent part as follows:
Dear [Appellant],
Please find the letter of May 29, 2014 that I sent you
regarding the offer in the above case which was returned
to my office. Can you also explain why you are at
Graterford? My criminal record printout does not show
any convictions that explain your placement there.
I understand that the case is a mandatory minimum of 3
years. Secondly, the [Violation of the Uniform Firearms
Act (“VUFA”) § 6105 has an offense gravity score of 10,
and with a prior record score of 0 (I am unaware of your
juvenile record if one exists), the recommendations per
the guidelines is 22-36 months incarceration, plus or
minus 12 months. As you can see 18-36 months is less
than what you would receive for that one charge alone
and your plea would be to Conspiracy and VUFA § 6106.
I have also enclosed your discovery for your review.
Please return the offer form within 2 days. I will see you
at the [Criminal Justice Center (“CJC”)] on 6/26/14.
(See Letter dated June 19, 2014, attached to Appellant's
amended PCRA Petition).
Appellant testified at his PCRA hearing that after receiving
[Plea Counsel’s] letter, he next spoke to her at the scheduling
conference at the [CJC] on June 26, 2014. Appellant claimed
he had questions for [Plea Counsel] regarding the letter, but
that he met with her for only a few minutes and "she told
[him] to just take or leave the deal." Appellant testified that
he specifically sought to ask [Plea Counsel] about her
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reference to the mandatory minimum sentence of 3 years'
incarceration, which Appellant purportedly believed meant
that the maximum sentence he could receive was 3 years'
incarceration.
Appellant testified that [Plea Counsel] asked him why he was
incarcerated and that he advised her he had prior convictions
for aggravated assault, firearm possession, and marijuana
possession. According to Appellant, after [Plea Counsel]
learned of Appellant's prior record, she still did not recalculate
his prior record score or recommended sentencing guidelines.
Appellant testified that he rejected the Commonwealth's plea
offer of [18 to 36 months’] incarceration, and opted to go to
trial, because he believed the maximum sentence he could
receive was 3 years' incarceration.
Appellant testified that he obtained new counsel after
rejecting the Commonwealth's offer, but that he still did not
learn until after trial that the sentencing guidelines ranged
from 72 to 84 months' incarceration (plus or minus 12
months). Furthermore, although Appellant knew he had a
criminal record as both an adult and a juvenile, he testified
he was unaware that he had a prior record score higher than
zero. Appellant testified that if [Plea Counsel] informed him
that his prior record score and pending charges warranted a
sentencing guideline of 72 to 84 months' incarceration (plus
or minus 12 months), he would have accepted the
Commonwealth's plea offer of 18 to 36 months' incarceration.
As the remedy for [Plea Counsel’s] ineffectiveness, Appellant
requested the court to grant his PCRA petition, to compel the
Commonwealth to "re-offer" the [previous] deal of 18 to 36
months' incarceration, and to have [the PCRA court] "do what
the court would normally do when deciding whether or not to
accept a negotiated plea."
In response to Appellant's argument, the Commonwealth
noted that its [prior] offer was based on the Commonwealth's
inaccurate calculation of the sentencing guidelines and
[Appellant’s] prior record score. Had the Commonwealth
known at the time that Appellant's prior record score was in
the "Repeat Felony 1 and Felony 2 Offender" (RFEL) category,
it would not have made the lenient offer. The Assistant
District Attorney, Cydney Pope, explained:
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Ms. Pope: He was a 5. Technically he's a re-fel. Just in
looking here, he's a re-fel. He had been charged with an
aggravated assault that night, and he would have been a
re-fel.
The Court: Why at that time would [an] offer for
[Appellant] be [18 to 36 months], and his co-defendant
was four to 10 [years], and his co-defendant's prior
record score was a 2.
Ms. Pope: I will tell you that the reason why is because
the Commonwealth, the DA who had the case at the time
that the offer was made, and at that time, because I have
the central file from the time, at that time, and I know
this personally, every single offer was approved by the
Chief or Assistant Chief of central at that time, and that
offer was approved, and it was approved based on a prior
record score that was inaccurately a zero.
By the time it came to trial and . . . pre-trial, the motion
to suppress, that prior record score had been determined
to be incorrect.
...
I don't know how it is in this case that it happened, but
clearly the prior DA who had the case at the time of the
[prior offer] miscalculated, and by miscalculated, when
they pulled the record, this was the only open case.
[N.T. PCRA Hearing, 8/30/21, at 35-36].
Ms. Pope emphasized that the offer "was made entirely due
to a mistake of the DA." In that regard, [the PCRA] court
itself noted that Appellant's charge of illegally possessing a
firearm under 18 Pa.C.S. § 6105 meant that "he had to have
been convicted of a prior offense." Even PCRA counsel
agreed that it is reasonable to conclude that the offer was
erroneously extended based on Appellant's inaccurate prior
record score. In counsel's words: "It's more egregious
because Ms. Pope is right, the offer was, I guess, made in
error. I can't answer that. Certainly she could have contacted
the DA that made the offer, but I think that's a reasonable
assessment."
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PCRA Court Opinion, 4/6/22, at 2-5 (some citations and capitalization
omitted).
The PCRA court denied Appellant’s petition on November 9, 2021 and
Appellant filed a notice of appeal on December 21, 2021.3 Appellant raises
one extant claim on appeal:
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3 As noted, the PCRA court denied Appellant’s petition on November 9, 2021
and Appellant filed a notice of appeal on December 21, 2021. Thus,
Appellant’s notice of appeal is facially untimely. See, e.g., Pa.R.A.P. 903(a).
Nevertheless, the clerk of courts failed to note, on the docket, the date upon
which the November 9, 2021 order was served upon Appellant's attorney.
This constitutes a breakdown in the operation of the courts and renders
Appellant's December 21, 2021 notice of appeal timely. To be sure,
Pennsylvania Rule of Criminal Procedure 114(B)(1) requires the clerk of courts
to serve promptly a copy of any trial court order or notice on each party's
attorney-of-record or the party if unrepresented. Pa.R.Crim.P. 114(B)(1). To
memorialize that proper service of a trial court order or notice was provided,
Rule 114(C)(2)(c) requires the clerk of courts to note, via a docket entry, the
date of service of such trial court order or notice. Pa.R.Crim.P. 114(C)(2)(c).
It is well-settled that the appeal period only begins to run on the date the
clerk of courts mails or delivers a copy of the trial court order or notice to the
parties. Pa.R.A.P. 108(a)(1), (d), and Note (stating, the purpose of this rule
is to fix that date from which the time for appeal shall be computed); see
also Commonwealth v. Carter, 122 A.3d 388, 391 (Pa. Super. 2015)
(stating that, the “appeal period only begins running on the date the [clerk of
courts] mails or delivers copies of the orders to the parties” (original quotation
marks omitted)), Commonwealth v. Jerman, 762 A.2d 366, 368 (Pa. Super.
2000).
Because the PCRA court docket does not contain the entry information
prescribed by Rule 114, we are unable to discern the date upon which the
clerk of courts served Appellant with a copy of the November 9, 2021 dismissal
order. A breakdown in the judicial system occurs if the clerk of courts fails to
note on the docket the date upon which a trial court order or notice has been
served upon a party. Jerman, 762 A.2d at 368 (finding a breakdown in the
judicial system and deeming the appeal timely when the clerk of courts failed
to serve a copy of an order on the party). As a result of this breakdown, the
(Footnote Continued Next Page)
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[1.] Did the PCRA court err in dismissing the PCRA petition
as [Plea Counsel] was ineffective for failing to accurately and
effectively advise [Appellant] and participate in meaningful
pre-trial negotiations with the Commonwealth, there was no
reasonable basis for this failure and but-for this failure, there
is a reasonable probability that after meaningful and effective
negotiations with the Commonwealth there would have been
an offer made that [Appellant] would have taken.
[Plea Counsel] ill-advised [Appellant] based on inaccurate
prior record score and guideline range and a non-existent
mandatory minimum, which made [Appellant] unaware of his
true sentencing exposure and he was therefore unable to
intelligently evaluate any offer. The PCRA court erred in
ruling [Appellant] was not prejudiced, as [Appellant] rejected
an offer he would have otherwise accepted, was subsequently
convicted and sentenced to a substantial state sentence, and
due to ineffective [Plea Counsel], any meaningful pre-trial
negotiations were frustrated and denied. Due to this
ineffectiveness [Appellant] was never afforded the
opportunity of any true offer based on accurate prior record
score?
Appellant’s Brief at 5-6.4
“We review a ruling by the PCRA court to determine whether it is
supported by the record and is free of legal error. Our standard of review of
a PCRA court's legal conclusions is de novo.” Commonwealth v. Cousar,
154 A.3d 287, 296 (Pa. 2017) (citations omitted). However, we afford “great
deference” to the PCRA court’s credibility determinations. Commonwealth
____________________________________________
period in which Appellant may file a notice of appeal has not begun to run.
Therefore, we deem Appellant's notice of appeal to be timely filed on
December 21, 2021.
4 On appeal, Appellant also raises a claim concerning the timeliness of his
notice of appeal. See Appellant’s Brief at 5. Since we have already concluded
that Appellant filed a timely notice of appeal, we will not restate this issue.
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v. Flor, 259 A.3d 891, 910-911 (Pa. 2021). As our Supreme Court has
explained:
We will not disturb the findings of the PCRA court if they are
supported by the record, even where the record could
support a contrary holding. [An appellate court’s] scope of
review is limited to the findings of the PCRA court and the
evidence on the record of the PCRA court's hearing, viewed
in the light most favorable to the prevailing party.
Id. (quotation marks and citations omitted).
To be eligible for relief under the PCRA, the petitioner must plead and
prove by a preponderance of the evidence that his conviction or sentence
resulted from “one or more” of the seven, specifically enumerated
circumstances listed in 42 Pa.C.S.A. § 9543(a)(2). One of these statutorily
enumerated circumstances is 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.A. § 9543(a)(2)(ii).
Counsel is presumed to be effective and “the burden of demonstrating
ineffectiveness rests on [A]ppellant.” Commonwealth v. Rivera, 10 A.3d
1276, 1279 (Pa. Super. 2010). To satisfy this burden, Appellant must plead
and prove by a preponderance of the evidence that:
(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 challenged
proceedings would have been different.
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Commonwealth v. Fulton, 830 A.2d 567, 572 (Pa. 2003). As this Court has
explained:
A claim has arguable merit where the factual averments, if
accurate, could establish cause for relief. See
Commonwealth v. Jones, 876 A.2d 380, 385 (Pa. 2005)
(“if a petitioner raises allegations, which, even if accepted as
true, do not establish the underlying claim . . . , he or she
will have failed to establish the arguable merit prong related
to the claim”). Whether the facts rise to the level of arguable
merit is a legal determination.
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 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.
Prejudice is established if there is a reasonable probability
that, but for counsel’s errors, the result of the proceeding
would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the
outcome.
Commonwealth v. Stewart, 84 A.3d 701, 707 (Pa. Super. 2013) (some
quotations and citations omitted). “A failure to satisfy any prong of the test
for ineffectiveness will require rejection of the claim.” Id.On appeal, Appellant claims that Plea Counsel was ineffective for failing
to “properly advise [Appellant] of the correct guideline range and the actual
substantial [sentencing] exposure [Appellant] faced.” Appellant’s Brief at 25.
According to Appellant, Plea Counsel’s improper advice caused him to reject
the Commonwealth’s offer of 18 to 36 months in prison – and, eventually,
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caused him to be sentenced to serve an aggregate term of six to 12 years in
prison, followed by five years of probation, for his convictions. See id. at
25-29. As a remedy for counsel’s allegedly deficient performance, Appellant
requests that we “allow [him] to accept the Commonwealth’s original offer of
18 months to 36 months of incarceration.” Id. at 30. This claim fails.
As we have explained:
a post-conviction petitioner seeking relief on the basis that
ineffective assistance of counsel caused him or her to reject
a guilty plea must demonstrate [that] . . . [but] for the
ineffective advice of counsel there is a reasonable probability
that the plea offer would have been presented to the court
(i.e., that the defendant would have accepted the plea and
the prosecution would not have withdrawn it in light of
intervening circumstances), that the court would have
accepted its terms, and that the conviction or sentence, or
both, under the offer's terms would have been less severe
than under the judgment and sentence that in fact were
imposed.
Commonwealth v. Steckley, 128 A.3d 826, 832 (Pa. Super. 2015) (quoting
Lafler v. Cooper, 566 U.S. 156 (2012)); see also Commonwealth v.
Hudson, 820 A.2d 720, 727-728 (Pa. Super. 2003) (“The Pennsylvania Rules
of Criminal Procedure grant the trial court broad discretion in the acceptance
and rejection of plea agreements. There is no absolute right to have a guilty
plea accepted”) (quotation marks and citations omitted); Commonwealth v.
White, 787 A.2d 1088, 1091 (Pa. Super. 2001) (“[w]hile the Commonwealth
and a criminal defendant are free to enter into an arrangement that the parties
deem fitting, the terms of a plea agreement are not binding upon the [trial]
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court. Rather the court may reject those terms if the court believes the terms
do not serve justice”).
The PCRA court judge in this case was also Appellant’s trial court judge.
And, as the PCRA court explained, Appellant cannot establish that he was
prejudiced by Plea Counsel’s alleged ineffectiveness because, even if Appellant
agreed to the Commonwealth’s offer of 18 to 36 months, the trial court would
not have accepted the agreement, as the agreement was based upon an
incorrect prior record score. The PCRA court explained:
Here, the record reflects that Appellant's now-deceased [Plea
Counsel] initially relayed the Commonwealth's plea offer to
Appellant in a letter dated June 19, 2014. The offer was
based on the Commonwealth's mistaken belief that Appellant
had a prior record score of zero and faced a guideline
sentence of 22 to 36 months' incarceration (plus or minus 12
months), when in fact he was a RFEL with numerous prior
offenses and faced a guideline sentence of 72 to 84 months'
incarceration (plus or minus 12). Since Appellant's charges
included illegally possessing a firearm under 18 Pa.C.S.
§ 6105 — i.e., an offense that requires Appellant to already
have a criminal record — it should have been obvious to both
the Commonwealth and defense counsel that something was
amiss. The incongruity would have been more obvious at the
scheduling conference on June 26, 2014, when Appellant
advised [Plea Counsel] that he was currently incarcerated for
prior offenses of aggravated assault, firearm possession, and
marijuana possession.
. . . Given the record in this case, it is implausible to conclude
that both the Commonwealth and the [trial] court would have
failed to recognize that the lenient plea offer was predicated
on Appellant's inaccurate prior record score of zero. Rather,
it is highly probable that if there had there been a guilty plea
hearing, the Commonwealth and the [trial] court (and
defense counsel) would have known — by that time — that
the offer was premised on an erroneous prior record score.
The Commonwealth and [the trial] court (and defense
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counsel) would have known that Appellant had a violent
criminal record that elevated his prior record score to the
category of a RFEL. Consequently, the parties would have
known that the plea offer was based on inaccurate
information that was integral to formulating the deal.
Ultimately the plea offer was never “entered of record or
accepted by [the trial] court.” Commonwealth v. McElroy,
665 A.2d 813, 817 (Pa. Super. 1995). Appellant therefore
was “not entitled to receive the benefit of what [was], at
most, an executory bargain,” and [the trial] court either
would have refused to approve the deal because the offer was
tendered based on inaccurate information, or it would have
allowed the Commonwealth to rescind its offer. Id. (“A
district attorney may decide, as a function of her/his
prosecutorial discretion, that a plea bargain agreement not
yet entered of record and approved by the court is not in the
best interests and/or for the general welfare of the citizens of
this Commonwealth. In that case, it makes little sense, and,
indeed, it would violate the trust imposed in that office, to
abdicate or to force abdication of prosecutorial discretion to
a criminal defendant whose interests are adverse to those of
the general citizenry of this Commonwealth.”). In either
situation, [the trial] court does not believe it would serve
justice to approve/enforce a plea deal that was offered based
on inaccurate information that was central to devising the
terms of the agreement.
Although Appellant plausibly establishe[d] that [Plea
Counsel] failed to competently advise him when she
presented the Commonwealth's plea offer, it is highly
improbable that [the trial] court would ultimately have
approved the offer. Therefore, Appellant failed to establish
prejudice from his now-deceased counsel’s allegedly deficient
performance.
PCRA Court Opinion, 4/6/22, at 9-11 (some citations and capitalization
omitted).
Here, the PCRA court found, as a fact, that, even if Appellant agreed to
the Commonwealth’s offer of 18 to 36 months, the trial court would not have
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accepted the agreement, as the agreement was based upon an incorrect prior
record score. The PCRA court’s factual findings are supported by the record
and, thus, are binding on this Court. Flor, 259 A.3d at 910-911. Therefore,
Appellant’s claim on appeal fails, as he failed to prove that, “[but] for the
ineffective advice of counsel[,] there [was] a reasonable probability that . . .
the court would have accepted [the] terms” of the plea. Steckley, 128 A.3d
at 832 (quotation marks and citations omitted).
Order affirmed. Jurisdiction relinquished.
Date: 10/12/2023
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