Com. v. Truver, B. ( 2023 )

J-S41044-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
BLAKE T. TRUVER :
:
Appellant : No. 716 WDA 2023
Appeal from the PCRA Order Entered June 1, 2023
In the Court of Common Pleas of Jefferson County Criminal Division at
No(s): CP-33-CR-0000092-2021
BEFORE: PANELLA, P.J., OLSON, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED: December 5, 2023
Blake T. Truver appeals from the June 1, 2023 order dismissing his
petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A.
§§ 9541-9546. After careful review, we affirm.1
This matter stems from Appellant’s aggregate judgment of sentence of
19 to 58 years’ imprisonment imposed following his open guilty plea to five
counts of recklessly endangering another person, burglary, criminal
conspiracy, robbery, simple assault, six counts of theft by unlawful taking,
aggravated assault by vehicle, fleeing or attempting to elude an officer, two
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* Former Justice specially assigned to the Superior Court.
1 The Commonwealth has indicated it will not be filing a brief in this matter
and relies on the reasoning set forth in the PCRA court’s June 1, 2023 opinion.
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counts of possession of a controlled substance, and use or possession of drug
paraphernalia.2
The underlying facts of this case were summarized by a prior panel of
this Court as follows:
On January 25, 2021, Appellant and another individual
pushed their way into a home, beat the resident who
was present at the time, and stole firearms, guitars,
and amplifiers. The second resident arrived home
during the incident and recognized Appellant as a
childhood friend. Appellant and the other assailant,
brandishing knives, chased the second resident from
the home before jumping in Appellant’s car and
driving away. A high-speed, seventeen-mile chase
with police officers ensued. The chase ended when
Appellant lost control of the vehicle which caused it to
rollover several times. Appellant and his co-
conspirator were airlifted to a hospital. Police officers
observed stolen property, drugs and drug
paraphernalia, and cash strewn inside and outside the
crashed vehicle.
Commonwealth v. Truver, 285 A.3d 953 (Pa.Super. 2022) (unpublished
memorandum at *1).
The PCRA court summarized the relevant procedural history of this case
as follows:
At a pretrial conference held April 26, 2021, the Court
established June 2, 2021 as [Appellant’s] last day to
enter a negotiated plea and, commensurate with his
case tracking sheet, June 9, 2021 as his jury selection
date. There was no plea offer on the table at the time,
and when [District Attorney Jeffrey D. Burkett (“D.A.
____________________________________________
2 18 Pa.C.S.A. §§ 2705, 3502(a)(1)(i), 903, 3701(a)(1)(i), 2701(a)(3), and
3921(a); 75 Pa.C.S.A. §§ 3732.1 and 3733(a); and 35 P.S. §§ 780-113(a)(16)
and (a)(32), respectively.
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Burkett”)] and [John M. Ingros, Esq. (hereinafter
“plea counsel”)] met for a second criminal conference
on May 19, 2021, the former again deferred, saying
that he wanted more time to think about it. [Plea
counsel] did not rejoin with his own proposal.
Subsequently, with little time remaining before
[Appellant] would have to decide whether to accept a
plea offer or go to trial, [plea counsel] received an e-
mail from the district attorney saying that he was
willing to nolle prosse some of [Appellant’s] charges
if he entered open pleas of guilty to the rest.
As he sat in a cell at the Jefferson County Courthouse
the morning of June 2, [Appellant] did not know where
his case stood and was surprised when [plea counsel]
said he only had two options: plead guilty that day or
go to trial. An open plea, he explained, would leave
sentencing at the Court’s discretion but would limit
[Appellant’s] exposure since the charges would be
fewer in number, whereas a jury trial would
encompass all the charges and would likely feature his
codefendant as a witness for the Commonwealth.
Having been advised that the Court could exercise its
discretion to run his individual sentences consecutive
to one another, and told specifically what the
aggregated maximum could be, he ultimately decided
to plead guilty [on June 2, 2021].
When it sentenced [Appellant] two weeks later, the
Court had in its a possession a [pre-sentence
investigation report (“PSI”)] that employed the wrong
OGS for Count 4, criminal conspiracy/burglary. As a
result, it errantly identified the applicable standard
range as “42-54,” when it should have been “24-36.”
The attendant mitigated ranged was “-12” in either
case, and the Court, after noting that it would be
imposing a mix of standard[] and mitigated-range
sentences, imposed “a consecutive mitigated
sentence of no less than two and a half nor more than
ten years” relative to Count 4. One year longer than
his co-defendant’s, the aggregated sentence was 19-
58 years, which the Court deemed to be “the
appropriate sentence” under the circumstances.
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[Plea counsel] did not realize at the time of sentencing
that the PSI recited the wrong OGS and guideline
ranges for criminal conspiracy/burglary. They were,
after all, the same numbers he had ascribed on the
plea colloquy two weeks earlier. He thus did not raise
contemporaneous objection at the hearing or plead
the error in post-sentence motions. Less than
confident that a timely objection would have altered
[Appellant’s] sentence, however, “one could always
hope” was the best he was willing to offer when PCRA
counsel asked whether he thought the Court would
have imposed a lower minimum had he recognized
and brought the error to its attention.
Although the OGS error was not among his
arguments, [plea counsel] appealed the judgment of
sentence on the basis that the Court had abused its
sentencing discretion. [This panel of Court ultimately
affirmed Appellant’s judgment of sentence on
September 27, 2022, and Appellant did not seek
allowance of appeal with our Supreme Court. See
Commonwealth v. Truver, 285 A.3d 953 (Pa.Super.
2022).] He later explained the nature of his argument
in a letter to [Appellant] and gave his honest
assessment that it would likely fail. Thence offering
his client hope, however, he proceeded to suggest a
post-appeal PCRA petition, outlining both the issue he
thought [Appellant] should explore and the testimony
he could provide to support it. His testimony on March
14, 2023 was consistent with that correspondence.
In [plea counsel’s] estimation, [Appellant’s] case was
rushed for two reasons: the Commonwealth wanted
to resolve his and his co-defendant's charges
simultaneously if both were going to plead guilty,
while the Court, on account of substantial medical and
transport costs accruing to the county, wanted to get
his co-defendant sentenced and out of the Jail as soon
as possible. He believed that [D.A.] Burkett, if given
more time, would have made an offer that
encompassed fewer charges and/or a lesser sentence
than the Court imposed, though. He was likewise
confident that the district attorney would have
“jumped at” a proposal from [Appellant] that entailed
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a 15-year minimum and may have even assented to
a 7½ or 10-year minimum. [Plea counsel’s]
confidence was misplaced.
As he credibly testified, the district attorney never
intended to make a term-of-years offer in this case.
Backed by what he believed were an egregious set of
facts and a strong case to present to a jury, he was
certain he could prove the charges beyond a
reasonable doubt. He also expected that the
acceptable minimum sentence in his head would
garner an immediate rejection. Thus, a charge-based,
open plea was all he was ever going to offer.
Notwithstanding his conviction that a delay would
have benefited his client, [plea counsel] did not
request a continuance. None was yet due for Rule 600
purposes, he knew, and having gotten the impression
that the Court would not sanction a delay under the
circumstances, he did not consider asking it to
continue [Appellant’s] last day to plea. He thus did not
test the accuracy of his impression or preserve for
appeal the sustainability of an adverse ruling.
PCRA court opinion, 6/1/23 at 2-3 (citations omitted).
On November 18, 2022, Appellant filed a timely pro se PCRA petition.
George L. Daghir, Esq. (“PCRA counsel”) was appointed to represent Appellant
and filed an amended PCRA petition on his behalf on January 9, 2023. The
PCRA court conducted an evidentiary hearing on this matter on March 14,
2023. Following this hearing, the PCRA court entered an order and opinion
denying Appellant’s PCRA petition on June 1, 2023. On June 21, 2023,
Appellant filed a timely notice of appeal.3
____________________________________________
3 Appellant and the PCRA court have complied with Pa.R.A.P. 1925.
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Appellant raises the following issues for our review:
1. Was [plea] counsel ineffective in failing to object
to the improper minimum sentencing guideline
range being listed on the [PSI] that was utilized
by the sentencing court at time of sentencing,
leading to an illegal sentence being entered,
when the correct standard minimum sentencing
guideline range for Count 4 (criminal conspiracy
to commit burglary) was “24-36” months and
not the standard range listed in the PSI as “42-
54” months[?]
2. Was [plea] counsel ineffective in failing,
between February 9, 2021 (date preliminary
hearing waived) and June 2, 2021 (date guilty
pleas entered), to engage with the
Commonwealth in entering a more favorable
plea agreement and/or filing a motion
requesting a continuance of the June 2, 2021,
plea date in order to give [plea] counsel
sufficient time to negotiate a more favorable
plea agreement with the Commonwealth[?]
Appellant’s brief at 2.
Proper appellate review of a PCRA court’s dismissal of a PCRA petition
is limited to the examination of “whether the PCRA court’s determination is
supported by the record and free of legal error.” Commonwealth v. Miller,
102 A.3d 988, 992 (Pa.Super. 2014) (citation omitted). “The PCRA court’s
findings will not be disturbed unless there is no support for the findings in the
certified record.” Commonwealth v. Lawson, 90 A.3d 1, 4 (Pa.Super. 2014)
(citations omitted). “This Court grants great deference to the findings of the
PCRA court, and we will not disturb those findings merely because the record
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could support a contrary holding.” Commonwealth v. Hickman, 799 A.2d
136, 140 (Pa.Super. 2002) (citation omitted).
Both of Appellant’s claims concern the purported ineffectiveness of his
plea counsel. Specifically, Appellant first argues that his plea counsel was
ineffective for failing to object to the incorrect offense gravity score (“OGS”)
for criminal conspiracy to commit burglary that was listed in the PSI.
Appellant’s brief at 9-12. For the following reasons, we disagree.
To prevail on a claim of ineffective assistance of counsel under the PCRA,
a petitioner must establish the following three factors: “first[,] the underlying
claim has arguable merit; second, that counsel had no reasonable basis for
his action or inaction; and third, that Appellant was prejudiced.”
Commonwealth v. Charleston, 94 A.3d 1012, 1020 (Pa.Super. 2014)
(citation omitted), appeal denied, 104 A.3d 523 (Pa. 2014).
[A] PCRA petitioner will be granted relief only when he
proves, by a preponderance of the evidence, that his
conviction or sentence resulted from 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.
Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014) (internal quotation
marks omitted; some brackets in original), citing 42 Pa.C.S.A.
§ 9543(a)(2)(ii).
“[C]ounsel is presumed to be effective and the burden of demonstrating
ineffectiveness rests on appellant.” Commonwealth v. Ousley, 21 A.3d
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1238, 1242 (Pa.Super. 2011) (citation omitted), appeal denied, 30 A.3d 487(Pa. 2011). “If a petitioner fails to prove any of these prongs, his claim fails.”
Commonwealth v. Simpson, 66 A.3d 253, 260 (Pa. 2013).
Upon review, we find that Appellant’s ineffectiveness claim fails because
he failed to satisfy the third prong of the aforementioned test; namely, that
he suffered actual prejudice as a result of plea counsel’s inaction.
Here, as recognized by the PCRA court, Appellant presented “no credible
evidence that [the sentencing court] would have imposed a lesser minimum
[sentence] had [plea counsel] objected to the OGS error at Count 4. See
PCRA court opinion, 6/1/23 at 4. The record reflects that the sentencing court
explicitly noted during Appellant’s sentencing hearing that it considered all of
his charges separate from that of his co-defendant and combined his individual
sentences to result in an aggregate term of 19 to 58 years’ imprisonment.
Notes of testimony, 6/16/21 at 7-8, 16. The court deemed this aggregate
sentence “appropriate” given the serious nature of his crimes. Id. The record
further reflects that regardless of the incorrect OGS, Appellant was still
sentenced to 2½ to 10 years’ imprisonment for the crime criminal conspiracy
to commit burglary (Count 4), which was well within the standard range of
the Sentencing Guidelines, and a fact that Appellant acknowledges in his brief.
See id. at 12; see also Appellant’s brief at 12-13
“In order to meet the prejudice prong of the ineffectiveness standard, a
defendant must show that there is a reasonable probability that but for
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counsel’s unprofessional errors, the result of the proceeding would have been
different.” Commonwealth v. Reed, 42 A.3d 314, 319 (Pa.Super. 2012)
(citations omitted), appeal denied, 114 A.3d 416 (Pa. 2015). Appellant has
failed to demonstrate that he would have received a lesser sentence from the
court, but for plea counsel’s inaction. Accordingly, we find no error in the
PCRA court’s disposition of this claim.
Appellant next argues that plea counsel was ineffective for failing to
engage with the Commonwealth to negotiate a more favorable plea deal and
for not filing a motion for continuance in order to give himself more time to
negotiate. Appellant’s brief at 13-18.
Upon review, we find that Appellant’s ineffectiveness claim fails because
he failed to establish that plea counsel had no reasonable basis for his decision
to forgo further plea negotiations. The record reveals that Jefferson County
D.A. Burkett testified at great length at the March 14, 2023 PCRA hearing,
noting his reluctance to make an “exact time offer” or reduce the charges to
the extent that Appellant’s sentence would have been less than the aggregate
19 to 58 year term-of-imprisonment imposed:
Q. Do you recall speaking with [plea counsel]
regarding this particular case?
A. I remember the case really well and I remember
[plea counsel] represented [Appellant] But
there was never going to be an exact time offer
made on the case from my perspective and I
can explain why.
Q. Okay.
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A. In cases where I think somebody deserve a
really harsh sentence, a lot of times what I
would do it I know that the numbers will shock
them and that they would most likely not take
the offer. I’d make a charge bargain. I’ve done
that – I’ve done that a lot of times over the
years.
I’ll make a charge bargain and say I want pleas
to this set of charges. And the reason I do that
is, you know it gives them hope that [they] have
something that they could talk about at
sentencing and possibility after [the] Judge be
more lenient on them that I would have been on
an offer.
But when I did that I generally thin[k] that the
charges and the allegations really justify a really
harsh offer.
....
And the same thing happened here in this case.
I thought we had a really good case. This was
a really serious crime. It was a big city crime
in my view. And you know, I thought it was
probably drug motivated probably but that it
was a really violent robbery, home invasion.
You know where they – they really caused some
pretty good injuries to the victim and then they
took off on a really, really high speed car
c[h]ase. . . . I thought we had a really good
case so I made the charge bargain offer.
Thinking slightly that the Court would see it the
way we did and impose a pretty harsh sentence.
But I was committed to doing it that way instead
of making an exact offer for time.
Q. So, there was never going to be any other
opportunity for [plea counsel] to negotiate or
renegotiate? Is that correct?
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A. Yeah. There was no – I’ve used that as a charge
bargain from the get go….
Notes of testimony, 3/14/23 at 35-38.
Plea counsel, it turn, testified during the hearing that he elected not to
request a continuance to continue plea negotiations with the Commonwealth
“[b]because it was made clear to me – I felt that we were picking [a] jury or
we were pleading that day[,]” and that any effort to the contrary would have
been fruitless. Id. at 12.
Based on the foregoing, we conclude that Appellant's claim fails on the
reasonable basis prong, as it is clear plea counsel made a strategic decision
to forgo further plea negotiations. Accordingly, we find no error in the PCRA
court’s disposition of this claim.
For all of the foregoing reasons, we conclude that the PCRA court
properly dismissed Appellant’s PCRA petition and affirm its June 1, 2023 order.
Order affirmed.
DATE: 12/5/2023
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