Com. v. Hodges, T. ( 2021 )

J-A03030-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TRACY LEE HODGES :
:
Appellant : No. 604 MDA 2020
Appeal from the PCRA Order Entered January 16, 2019,
in the Court of Common Pleas of Lancaster County,
Criminal Division at No(s): CP-36-CR-0003261-2017.
BEFORE: LAZARUS, J., KUNSELMAN, J., and MURRAY, J.
MEMORANDUM BY KUNSELMAN, J.: FILED: JUNE 7, 2021
Tracy Lee Hodges appeals, nunc pro tunc, from the order denying his
timely petition for relief filed pursuant to the Post Conviction Relief Act
(“PCRA”). 42 Pa.C.S.A. §§ 9541-46. Additionally, Hodges’ court appointed
PCRA counsel has filed a motion for leave to withdraw.1 We grant counsel’s
____________________________________________
1 In lieu of an advocate’s brief, PCRA counsel has filed brief pursuant to
Anders v. California, 386 U.S. 738 (1967). Anders applies to counsel who
seeks to withdraw from representation on direct appeal. Anders imposes
stricter requirements than those imposed when counsel seeks to withdraw
during the post-conviction process pursuant to the dictates of
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). See Commonwealth
v. Fusselman, 866 A.2d 1109, 1111 n.3 (Pa. Super. 2004). Thus, we will
assess counsel’s assertion that the issues Appellant wishes to raise have no
merit under a Turner/Finley analysis.
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motion to withdraw and affirm the PCRA court’s order denying post-conviction
relief.
The PCRA court summarized the pertinent facts and procedural history
as follows:
On May 26, 2017, Hodges cut a first floor window screen to
gain access to the interior of an occupied residence on East
Lemon Street in the City of Lancaster. The resident heard
noises on the first floor and discovered the intruder in his
kitchen. When the resident called the police, the suspect
fled through the rear yard. The police later located clothing
and a photo identification of a male with the name of
[Hodges] under overturned trash cans in the back yard. The
resident identified the suspect from the recovered photo
identification.
Hodges was arrested on May 27, 2017, and admitted that
he burglarized the residence on East Lemon Street. As a
result, Hodges was charged with burglary and criminal
mischief. Hodges tendered a negotiated guilty plea to the
charge of burglary on September 29, 2017. [In accordance
with the plea agreement, the trial court immediately
sentenced Hodges to] 6 to 12 years’ incarceration, plus fine
and costs.
PCRA Court Opinion, 1/16/19, at 1-2 (footnotes omitted).
On May 16, 2018, Hodges, acting pro se, filed an untimely motion for
reconsideration. In this pleading, he also challenged the effective assistance
of his trial counsel. Treating the filing as a timely PCRA petition, the PCRA
court appointed counsel. PCRA counsel filed an amended petition on June 28,
2018. In this petition, Hodges claimed that trial counsel’s incorrect advice
coerced him into entering his guilty plea. The Commonwealth filed a
response.
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On December 12, 2018, the PCRA court held an evidentiary hearing at
which trial counsel and Hodges testified. By order entered January 16, 2019,
the PCRA court denied Hodges’ PCRA petition. Although Hodges did not file a
timely appeal, his appellate rights were reinstated nunc pro tunc. The PCRA
court directed Hodges to file a Pa.R.A.P. 1925(b) statement. Thereafter, PCRA
counsel filed an intent to file an Anders/Santiago brief in lieu of a concise
statement.
We first address PCRA counsel’s motion to withdraw. Pursuant to
Turner/Finley, supra, before seeking leave to withdraw, a criminal
defendant’s counsel must review the record to determine if any meritorious
issue exists. See Commonwealth v. Pitts, 981 A.2d 875, 876 n.1 (Pa.
2009). In Pitts, our Supreme Court explained that such review by counsel
requires proof of:
1. A “no-merit” letter by PC[R]A counsel detailing the nature
and extent of his review;
2. The “no-merit” letter by PC[R]A counsel listing each issue
the petitioner wished to have reviewed;
3. The PC[R]A counsel’s “explanation,” in the “no-merit” letter,
of why the petitioner’s issues were meritless;
4. The PC[R]A court conducting its own independent review of
the record; and
5. The PC[R]A court agreeing with counsel that the petition
was meritless.
Id. (citation and brackets omitted). Further, PCRA counsel seeking to
withdraw from representation in this Court must contemporaneously forward
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to the petitioner a copy of the petition to withdraw that includes (1) a copy of
both the “no-merit” letter, and (2) a statement advising the PCRA petitioner
that, upon the filing of counsel’s petition to withdraw, the petitioner has the
immediate right to proceed pro se, or with the assistance of privately retained
counsel. Commonwealth v. Muzzy, 141 A.3d 509, 511-12 (Pa. Super.
2016).
Upon review, we conclude that PCRA counsel has substantially complied
with the Turner/Finley requirements as set forth above. See
Commonwealth v. Karanicolas, 836 A.2d 940, 947 (Pa. Super. 2003)
(holding that substantial compliance with requirements to withdraw as counsel
will satisfy the Turner/Finley criteria). We now independently review
Hodges’ ineffectiveness claim to ascertain whether it entitles him to relief.
Our scope and standard of review is well settled:
In PCRA appeals, our 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. Because most PCRA
appeals involve questions of fact and law, we employ a
mixed standard of review. We defer to the PCRA court's
factual findings and credibility determinations supported by
the record. In contrast, we review the PCRA court's legal
conclusions de novo.
Commonwealth v. Reyes-Rodriguez, 111 A.3d 775, 779 (Pa. Super. 2015)
(citations omitted).
Hodges’ claim alleges that trial counsel was ineffective because he
coerced him to enter a guilty plea. To obtain relief under the PCRA premised
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on a claim that counsel was ineffective, a petitioner must establish by a
preponderance of the evidence that counsel’s ineffectiveness so undermined
the truth determining process that no reliable adjudication of guilt or
innocence could have taken place. Commonwealth v. Johnson, 966 A.2d
523, 532 (Pa. 2009). “Generally, counsel’s performance is presumed to be
constitutionally adequate, and counsel will only be deemed ineffective upon a
sufficient showing by the petitioner.” Id. This requires the petitioner to
demonstrate that: (1) the underlying claim is of arguable merit; (2) counsel
had no reasonable strategic basis for his or her action or inaction; and (3)
petitioner was prejudiced by counsel's act or omission. Id. at 533. A finding
of "prejudice" requires the petitioner to show "that there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different." Id. A failure to satisfy any prong of
the test for ineffectiveness will require rejection of the claim.
Commonwealth v. Martin, 5 A.3d 177, 183 (Pa. 2010).
This Court has summarized the following regarding claims that the entry
of a guilty plea was the result of ineffective assistance of counsel:
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 [or her] guilty plea under the
PCRA if ineffective assistance caused the defendant to enter
an involuntary plea[.]
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. The voluntariness of the plea
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depends on whether counsel’s advice was within the range
of competence demanded of attorneys in criminal cases.
Commonwealth v. Orlando, 156 A.3d 1274, 1280 (Pa. Super. 2017)
(citations omitted).
Here, the PCRA court concluded Hodges’ claim that trial counsel was
ineffective by coercing him to enter a guilty plea did not provide a basis for
post-conviction relief. Before reaching this conclusion, the court considered
the testimony from both trial counsel and Hodges at the PCRA hearing. The
PCRA court summarized their testimony as follows:
Hodges claimed [trial] counsel unlawfully induced him to
enter a plea. In support of this argument, Hodges averred
that [trial counsel] coerced him to plead guilty by advising
him that if he refused the Commonwealth’s plea offer and
chose to exercise his right to trial he faced the possibility of
25 years in prison.
[Trial counsel] testified first at the evidentiary hearing.
[He] stated that he did not initially represent Hodges at the
preliminary hearing. However, after being assigned the
case, he met with Hodges at the prison at least three times
prior to his guilty plea. At those meetings, [trial counsel]
talked to Hodges about the evidence against him, his prior
record, his history of bipolar disorder, possible defenses,
and his options regarding going to trial or entering a plea.
It was at the preliminary hearing when Hodges was
informed, by the prior public defender representing him at
the time, that the Commonwealth was not making any kind
of offer and that Hodges was facing a third strike, which
meant a sentence of 25 years to life in prison. [Trial
counsel] later told Hodges that he would try to negotiate
with the Commonwealth to get rid of the strikes altogether
or at least knock the strikes down from three to two.
Ultimately, [trial counsel] negotiated a deal with the
Commonwealth in which Hodges would plead guilty to the
felony charge of burglary, the criminal mischief would be
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nolle prossed, and Hodges would serve a sentence of
incarceration of 6 to 12 years. When [trial counsel]
presented the deal to Hodges, he cautioned Hodges that if
he did not accept the Commonwealth’s offer and chose to
exercise his constitutional right to a jury trial, the
Commonwealth would invoke the strikes. If a second strike
was invoked, Hodges was looking at 10 to 20 years’
incarceration. If a third strike was invoked and
substantiated, he was facing a sentence of 25 years to life.
However, [trial counsel] denied ever telling Hodges that he
had to take the offer or get 25 years to life in prison.
Hodges took the stand next and candidly told the PCRA
court that even were the information given by [trial counsel]
wrong as to the number of years he was facing as a prior
felon with two or three strikes, he would not have exercised
his constitutional right to a jury trial and would have
accepted the Commonwealth’s offer of 6 to 12 years’
incarceration because the offer was within the Sentencing
Guidelines and did not include any strike offenses.
PCRA Court Opinion, 1/16/19, at 4-6 (emphasis in original; citations to record
omitted).
Given the above, the PCRA court concluded that Hodges did not rely on
trial counsel’s advice when entering his guilty plea. Thus, because he was
unable to prove prejudice, his claim of ineffectiveness related to the entry of
his plea failed. Id. at 6. Our review of the certified record, including Hodges’
written and oral plea colloquies, as well as the PCRA hearing testimony,
supports this conclusion. See Commonwealth v. Medina, 92 A.3d 1210,
1214-15 (Pa. Super. 2014) (explaining that, when supported by the record,
the PCRA court’s credibility determinations are binding on this Court).
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In sum, because Hodges’ claim of ineffectiveness regarding the entry of
his guilty plea is refuted by the record and otherwise meritless, we affirm the
PCRA court’s order denying him post-conviction relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 06/07/2021
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