Com. v. Jones, E. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
ERIC T. JONES :
:
Appellant : No. 1826 EDA 2020
Appeal from the PCRA Order Entered August 26, 2020
In the Court of Common Pleas of Monroe County Criminal Division at
No(s): CP-45-CR-0001925-2017
BEFORE: BENDER, P.J.E., McLAUGHLIN, J., and STEVENS, P.J.E.*
MEMORANDUM BY BENDER, P.J.E.: FILED JULY 07, 2021
Appellant, Eric T. Jones, appeals from the post-conviction court’s August
26, 2020 order denying his petition filed under the Post Conviction Relief Act
(PCRA), 42 Pa.C.S. §§ 9541-9546. After careful review, we affirm.
The PCRA court summarized the pertinent facts and procedural history
of this case, as follows:
[Appellant] was charged with killing Morgan McGhee, who was his
girlfriend and the mother of his infant daughter, by shooting her
twice on July 10, 2017[,] at their residence in Tobyhanna,
Pennsylvania. [Appellant] entered a nolo contendere plea to
murder in the first degree on October 15, 2018[,] and was
sentenced on the same day to life in prison without parole.
[Appellant] did not file a direct appeal from the sentencing order.
[On June 17, 2019, Appellant filed a PCRA petition.] On June 19,
2019, this court appointed Brian Gaglione, Esq.[,] to represent
[Appellant,] and gave … [Appellant] leave to file an amended
PCRA petition. On August 6, 2019, this court gave defense
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* Former Justice specially assigned to the Superior Court.
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counsel an extension of time to file a brief. Attorney Gaglione did
not file an amended petition[] but[,] instead[,] on October 16,
2019, he requested a hearing to present evidence on [Appellant’s]
contention that his trial counsel was ineffective. Specifically,
[Appellant] claimed his trial lawyer misled him to believe that
pending legislation in Pennsylvania would result in his being
eligible for parole if he entered a nolo contendere plea to first[-]
degree murder. A hearing on the motion was scheduled for
December 19, 2019[,] and arrangements were made for
[Appellant] to appear by teleconference.
The hearing on December 19, 2019[,] was continued to January
24, 2020[,] due to technical difficulties in establishing a video
connection with [Appellant] in state prison that morning.
Attorney Gaglione filed a motion on January 6, 2020[,] advising
that he had ended his employment with the county as conflict
counsel and requesting that new counsel be appointed to
represent [Appellant]. The court appointed Robert A. Saurman,
Esq.[,] as new counsel for [Appellant] on January 9, 2020. On
January 24, 2020, a hearing was held on the PCRA motion and the
parties were directed to file briefs. On March 5, 2020, [Appellant]
filed his brief in support of his PCRA petition.
In his brief…, [Appellant] raised the issue of whether he was
competent to understand the nolo contendere plea at the time he
entered it. He attached to his post-hearing brief a
neuropsychological evaluation performed by a defense expert as
part of preparation for [Appellant’s] murder trial. The
Commonwealth expressed surprise, as it had not been put on
notice of this defense, and requested an additional hearing based
on the new claim. This motion was granted, and a hearing was
held on June 19, 2020[,] to give the Commonwealth an
opportunity to address the issue of [Appellant’s] competence at
the time of the nolo contendere plea.
PCRA Court Opinion (PCO), 8/26/20, at 1-2 (unnecessary capitalization
omitted).
On August 26, 2020, the court issued an order and opinion denying
Appellant’s PCRA petition. He filed a timely notice of appeal, and he complied
with the PCRA court’s order to file a Pa.R.A.P. 1925(b) concise statement of
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errors complained of on appeal. Herein, Appellant states two issues for our
review:
A. Did the PCRA court err and abuse its discretion by not finding
trial counsel ineffective for failing to propertly [sic] communicate
with [Appellant] … regarding the legal effect of his plea of guilty
both in terms of possisble [sic] sentence and in terms of the
potential effects o[f] future legislation?
B. Did the PCRA court err and abuse its discretion by not finding
trial counsel ineffective for failing to follow up on evaluations
suggesting that [Appellant] might suffer from severe cognative
[sic] disabilities?
Appellant’s Brief at 4.
To begin, we note that, “[t]his Court’s standard of review from the grant
or denial of post-conviction relief is limited to examining whether the lower
court’s determination is supported by the evidence of record and whether it is
free of legal error.” Commonwealth v. Morales, 701 A.2d 516, 520 (Pa.
1997) (citing Commonwealth v. Travaglia, 661 A.2d 352, 356 n.4 (Pa.
1995)). Where, as here, a petitioner claims that he received ineffective
assistance of counsel, our Supreme Court has stated that:
[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.” Generally, counsel’s
performance is presumed to be constitutionally adequate, and
counsel will only be deemed ineffective upon a sufficient showing
by the petitioner. To obtain relief, a petitioner must demonstrate
that counsel’s performance was deficient and that the deficiency
prejudiced the petitioner. A petitioner establishes prejudice when
he demonstrates “that there is a reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceeding
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would have been different.” … [A] properly pled claim of
ineffectiveness posits that: (1) the underlying legal issue has
arguable merit; (2) counsel’s actions lacked an objective
reasonable basis; and (3) actual prejudice befell the petitioner
from counsel’s act or omission.
Commonwealth v. Johnson, 966 A.2d 523, 532-33 (Pa. 2009) (citations
omitted).
In Appellant’s first issue, he claims that his trial counsel was ineffective
for failing to communicate to Appellant that he was entering a plea to first-
degree murder and would be sentenced to life imprisonment, without the
possibility of parole. According to Appellant, he “believed that he was entering
a plea to the charge of general homicide” and that the court would determine
at sentencing if he would receive a term of life imprisonment for first-degree
murder, or a lesser sentence consistent with third-degree murder. Appellant’s
Brief at 10.
Notably, Appellant acknowledges that, “[w]hen a defendant enters a
plea on [the] advice of counsel, the voluntariness of that plea depends on
whether counsel’s advice was within the range of competence demanded of
attorneys in criminal cases.” Id. at 11-12 (citing Commonwealth v. Moser,
921 A.2d 526, 531 (Pa. Super. 2007)). However, Appellant at no point
explains what advice his trial counsel provided him about the plea, or how that
advice was inadequate. Instead, Appellant only avers, in general terms, that
he and his trial counsel were “on different plains [sic] of understanding[,]”
which ultimately led him to enter a plea that was involuntary, unknowing, and
unintelligent. Id. at 12.
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Appellant’s argument is insufficient to establish that trial counsel acted
ineffectively. As the PCRA court pointed out in its opinion, counsel testified at
the PCRA hearing about his conversations with Appellant concerning the plea,
as follows:
[Trial Counsel:] We [counsel and co-counsel] met with [Appellant]
obviously more than the day before jury selection over the course
of the entire case. I met with [Appellant] multiple times…. During
each conversation when we would discuss a plea, I certainly
informed [Appellant] that [first-degree] murder … would be a life
sentence. No ifs, ands or buts, life means life. There is no
possibility of parole. You will serve a life sentence. And at that
time[,] there were significant differences between that and
receiving a death sentence.
PCO at 5 (quoting N.T. PCRA Hearing, 1/24/20, at 12).
Moreover, during the plea colloquy, Appellant repeatedly expressed his
understanding that he was pleading guilty to first-degree murder and would
receive a life sentence of incarceration, without the possibility of parole. See
id. at 6-8 (quoting N.T. Plea, 10/15/18, at 5-13). He also confirmed that he
had sufficiently discussed the plea with counsel, he was satisfied with
counsel’s advice, and that he had no questions for the court. Id. at 7.
Appellant’s trial counsel also stated during the colloquy that he had discussed
the plea with Appellant and his family on several occasions. Id. at 8. Thus,
the record demonstrates that trial counsel adequately communicated with
Appellant about the consequences of entering the plea, and that Appellant was
aware he was pleading nolo contendere to first-degree murder and would be
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sentenced to life imprisonment without parole.1 Because Appellant does not
claim that his trial counsel gave him specific advice or information that caused
him to misunderstand the implications of his nolo contendere plea, we
conclude that his first issue is meritless.
Next, Appellant claims his trial counsel acted ineffectively by not
“follow[ing] up on evaluations suggesting that [Appellant] []might suffer from
severe cognitive disabilities[.]” Appellant’s Brief at 16 (unnecessary
capitalization omitted). Appellant explains that, prior to trial, his counsel
obtained a “Neuropsychological Evaluation” of Appellant, revealing that
Appellant’s IQ is 74. Id. According to Appellant, this constitutes a “borderline
IQ” and counsel should have obtained further evaluations to discern if
Appellant could be deemed intellectually disabled, thereby precluding
imposition of the death penalty under Atkins v. Virginia, 536 U.S. 304, 321
(2002) (holding that the death penalty “is excessive and that the Constitution
places a substantive restriction on the State’s power to take the life of a
mentally retarded offender”) (internal quotation marks and citation omitted).
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1 We also point out that, if Appellant truly misunderstood that he would receive
a sentence of life imprisonment for his plea to first-degree murder, he
obviously discovered this fact when he was sentenced, and he could have at
that point filed a post-sentence motion to withdraw his plea for the reasons
he sets forth herein. His failure to do so waives for our review his argument
that his plea was involuntary, unknowing, and unintelligent. See 42 Pa.C.S.
§ 9543(a)(3) (stating that, to be eligible for PCRA relief, a petitioner must
prove “[t]hat the allegation of error has not been previously litigated or
waived”); 42 Pa.C.S. § 9544(b) (“For purposes of this subchapter, an 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 postconviction
proceeding.”).
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See also Commonwealth v. Sanchez, 36 A.3d 24, 63 (Pa. 2011)
(developing the procedure for deciding Atkins claims; holding that (1) it the
burden of the proponent of the Atkins claim to prove intellectual disability by
a preponderance of the evidence, (2) the finding of an intellectual disability,
for purposes of death-penalty ineligibility, must be unanimous, and (3) the
jury should decide the Atkins question before proceeding to the consideration
of the aggravating and mitigating factors). Appellant insists that, had his trial
counsel attempted to establish that Appellant could not be sentenced to death
because he is intellectually disabled, the plea
negotiation positions would have switched from the [d]eath
penalty down to [the first-degree m]urder … situation in which
[Appellant’s] plea was taken, to [first-degree m]urder to [third-
degree m]urder…. By not pursing the possible Atkins
disqualification for [Appellant] from the death penalty, the
defense put [Appellant] in a position where the plea to [first-
degree] murder … was what was offered by the Commonwealth[,]
rather than a potentially much better offer. Had this line of inquiry
been aggressively pursued, it is reasonable to determine that a
plea to [third-degree] murder … could have been [obtained].
Appellant’s Brief at 18.
Our Supreme Court has addressed how a PCRA petitioner may establish
that he or she has an intellectual disability that would preclude the death
penalty under Atkins. See Commonwealth v. Knight, 241 A.3d 620 (Pa.
2020); Commonwealth v. Miller, 888 A.2d 624 (Pa. 2005). In Knight, the
Court explained:
We considered in Miller the definition of intellectual disability
used by the American Association of Mental Retardation (“AAMR”),
now the American Association on Intellectual and Developmental
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Difficulties (“AAIDD”), and the American Psychiatric Association
(“APA”) standard set forth in the Diagnostic and Statistical Manual
of Mental Disorders (4th ed. 1992) (“DSM–IV”). The AAMR defines
intellectual disability as a “disability characterized by significant
limitations both in intellectual functioning and in adaptive behavior
as expressed in the conceptual, social, and practical adaptive
skills.” Miller, 888 A.2d at 629–30 (quoting Mental Retardation:
Definition, Classification, and Systems of Supports 1 (10th ed.
2002)). The APA’s definition, as set forth in the DSM–IV, defines
“mental retardation” as “significantly subaverage intellectual
functioning (an IQ of approximately 70 or below) with onset before
age 18 years and concurrent deficits or impairments in adaptive
functioning.” Miller, 888 A.2d at 630 (quoting DSM–IV at 37).
We noted in Miller that the above definitions share three
concepts: limited intellectual functioning, significant adaptive
limitations, and onset prior to age 18. Regarding the concept of
limited intellectual functioning, we explained:
Limited or subaverage intellectual capability is best
represented by IQ scores, which are approximately two
standard deviations (or 30 points) below the mean (100).
The concept should also take into consideration the standard
error of measurement (hereinafter “SEM”) for the specific
assessment instruments used. The SEM has been estimated
to be three to five points for well-standardized measures of
general intellectual functioning. Thus, for example, a
subaverage intellectual capability is commonly ascribed to
those who test below 65–75 on the Wechsler scales.
Id. at 630 (citations omitted).
Recognizing that, pursuant to both the AAMR and DSM–IV, a low
IQ score is not, in and of itself, sufficient to support a classification
of intellectually disabled, we considered the factors relevant to the
second prong – the existence of limitations in adaptive behavior:
Adaptive behavior is the collection of conceptual, social, and
practical skills that have been learned by people in order to
function in their everyday lives, and limitations on adaptive
behavior are reflected by difficulties adjusting to ordinary
demands made in daily life. The AAMR recommends that
such limitations should be established through the use of
standardized measures. “On these standardized measures,
significant limitations in adaptive behavior are operationally
defined as performance that is at least two standard
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deviations below the mean of either (a) one of the following
three types of adaptive behavior: conceptual, social, or
practical, or (b) an overall score on a standardized measure
of conceptual, social, and practical skills.”
Id. at 630–31 (citations and footnote omitted). Under the AAMR,
conceptual skills include, inter alia, language, reading, and writing
abilities, and the understanding of money, time, and number
concepts; social skills include, inter alia, interpersonal skills, social
responsibility, and the ability to follow rules; and practical skills
include, inter alia, personal care, travel and transportation, meal
preparation, and money management. Id. at 630 n.8.
This Court did not discuss at length in Miller the third concept —
age of onset — stating, “[w]e see no need to explore the concept
of age of onset further, since this requirement is self explanatory
and both the AAMR and the DSM–IV require that the age of onset
be before age 18.” Id. at 630 n.7.
In sum, we stated:
What is clear from the above is that [the AAMR and the
DSM–IV] definitions are very similar and diagnosis under
either system of classification takes into account like
considerations. Therefore, we hold that a PCRA petitioner
may establish his or her mental retardation under either
classification system and consistent with this holding,
assuming proper qualification, an expert presented by either
party may testify as to mental retardation under either
classification system. Moreover, consistent with both of
these classification systems, we do not adopt a cutoff IQ
score for determining mental retardation in Pennsylvania,
since it is the interaction between limited intellectual
functioning and deficiencies in adaptive skills that establish
mental retardation.
Id. at 631.
In … Sanchez, … this Court held that a “colorable Atkins issue”
should be submitted to the jury for a penalty phase decision.
[Sanchez, 36 A.3d] at 62. However, “an Atkins claim is not
properly for the factfinder unless there is competent evidence to
support the claim, under the standard announced
in Miller.” Id. at 62 n.19.
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Knight, 241 A.3d at 629-31.
Here, the PCRA court determined that Appellant’s counsel had
adequately explored the possibility of raising an Atkins claim, and it ultimately
concluded that Appellant would have been unable to prove that he is
intellectually disabled. The court explained:
[T]he burden of proof in these PCRA proceedings is on [Appellant],
who must prove by a preponderance of the evidence that counsel
was ineffective in failing to properly assert an Atkins defense.
Here, [Appellant] has presented no expert testimony on the
question of his mental retardation, and the death penalty was not
imposed in this case. [Appellant] argues that if the Atkins
defense was raised it would have given him greater bargaining
power and the ability to avoid a life without parole sentence.
[Appellant] attached [to his petition] the draft report of Carol L.
Armstrong, Ph.D., a mitigation specialist his trial counsel hired. In
her report, she found that [Appellant’s] IQ was 74.
At the hearing held on June 19, 2020, the Commonwealth called
Juandalynn Taylor, Ph.D., J.D. Dr. Taylor was retained by
[Appellant’s] trial counsel as a death penalty mitigation specialist.
She testified that when she [is] retained, “one of the things we do
immediately is to look for or investigate whether or not we have
enough information to put forth an Atkins claim.” [N.T. Hearing,
6/19/20, at 12.]. She investigated [Appellant’s] intellectual
functioning and his adaptive functioning. She [also] retained [Dr.]
Armstrong, a neuropsychologist, to administer a full-scale IQ
evaluation and intellectual function test. Id. [at] 13. Dr.
Armstrong found [Appellant’s] full-scale IQ to be 74. His adaptive
functioning rankings were consistent with his IQ. Id. [at] 15.
[Appellant’s] scores suggested a borderline IQ, but she also found
that he was a person who could function in society without
assistance. Id.
Dr. Taylor conducted an [Adaptive Behavior Assessment System
(“ABAS”)] test to determine how independently [Appellant] was
able to function. He was tested in three areas: communication,
practical[,] and social functioning. Dr. Taylor testified that if the
individual being tested does not need assistance in these three
areas, he does not have deficiencies in adaptive functioning. Id.
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The test results showed that [Appellant] was able to communicate
and perform tasks of daily living in his work, family[,] and social
affairs. Dr. Taylor advised [Appellant’s] trial counsel that
[Appellant] did not meet the threshold to advance an Atkins
argument at the penalty phase of the death penalty trial. Id. [at]
19.
[Appellant’s] … trial counsel[] testified that after receiving the
results of the investigation and testing done by Dr. Armstrong and
Dr. Taylor, and discussion with [Appellant], the defense team
decided that [Appellant] was not laboring under mental
retardation that would support an Atkins defense. [Id. at] 31.
[Appellant] has offered no testimony to refute Dr. Armstrong[’s]
and Dr. Taylor’s findings[,] and Dr. Taylor’s recommendations to
his counsel. [This court] found Dr. Taylor’s testimony to be
credible and supported by her findings and those of Dr.
Armstrong.
PCO at 13-14.
On appeal, Appellant challenges the PCRA court’s decision by claiming
that the ABAS test used by Dr. Taylor to determine if Appellant had a viable
Atkins claim was inadequate, as “this test is based on self-reported
capabilities rather than any external evaluations.” Appellant’s Brief at 18. He
further contends:
In [Appellant’s] case, the test was administered to [Appellant] and
his mother alone. Certainly[,] the assessments of an individual
and their [m]other can be very insightful, but they also have
significant potential for false impression reporting, exaggeration,
and minimalization of negative features to avoid embarrassment.
Anyone who has worked in the field of mitigation is aware that
individuals will often misrepresent truth to avoid embarrassment
even when such truth would be significant in life[-]saving
mitigation efforts. Therefore[,] to decide not to further pursue
Atkins issues based solely on self[-]reported functioning is not an
acceptable decision in a life and death situation. Counsel was
ineffective for fail[ing] to insure [sic] more complete testing and,
as a result, [Appellant] is entitled to the reversal of his plea of
guilty to allow this issue to be further explored.
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Id. at 18-19.
We are unconvinced. Appellant failed to present any evidence at the
PCRA hearing to challenge the accuracy of the ABAS test utilized by Dr. Taylor,
or to attack the validity of her conclusion that Appellant would not have a valid
Atkins defense. Thus, the record supports the PCRA court’s decision that
Appellant’s trial counsel acted effectively in investigating Appellant’s
intellectual abilities and relying on Dr. Taylor’s conclusions.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/7/2021
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