DocketNumber： 173 Capital Appeal Docket
Judges： Flaherty, Zappala, Cappy, Castille, Nigro, Newman, Saylor
Filed Date： 7/20/2000
Status： Precedential
Modified Date： 10/19/2024
This is an appeal from the denial of post-conviction relief in a capital case. The background of the case was described fully in the opinion of the court on Michael’s direct appeal from his death sentence, Commonwealth v. Michael, 544 Pa. 105, 674 A.2d 1044. (1996), and will be summarized briefly here.
On July 12, 1993, Michael offered to drive sixteen-year-old Trista Eng to her job at Hardee’s Restaurant. After she was in his car, he threatened her with a .44 magnum, then drove her to a remote wooded area, shot her three times with the high-powered handgun, and hid her body in the undergrowth. While appellant was incarcerated on an unrelated charge, his brother, Boyd Michael, visited him in prison. Appellant described the details of the kidnapping and murder to his brother who, based on the information in appellant’s confession, located the as yet undiscovered body of the victim, and reported it to the Pennsylvania state police.
Following appellant’s arrest, Bruce Blocher, a criminal law attorney with fifteen years of experience as a public defender, was appointed to represent appellant.
Hubert Michael was sentenced to death following his guilty-plea conviction of kidnapping and murdering the young woman in cold blood. On March 24, 1995, during the pendency of his direct appeal, Michael, through counsel and by affidavit, expressed his desire to have his death sentence affirmed. Id,., 544 Pa. at 109-10 n. 6, 674 A.2d at 1046-47 n. 6. The judgment of sentence was affirmed by this court on April 17, 1996. Id.
Due to Michael’s request for affirmance, the court did not consider any issues raised by appellant in his direct appeal, but limited its review to the sufficiency of the evidence, the possibility of arbitrariness in imposition of the sentence, evidence of at least one aggravating circumstance, and proportionality of the sentence to sentences in similar cases. Id., 544
Represented by new counsel from the Center for Legal Education, Advocacy & Defense Assistance, appellant filed a collateral petition under the PCRA. The trial court held a hearing, and subsequently denied relief. This is his appeal from the denial of his PCRA petition.
While this PCRA appeal was pending, Michael again , expressed his unwillingness to contest his death sentence. He filed an affidavit, this time stating that he wanted to withdraw this PCRA appeal. Michael’s counsel petitioned the court to deny his request, questioning his mental competence to make such a decision. Inasmuch as Michael’s direct appeal had been truncated due to his request that the death sentence be affirmed, we remanded for a determination by the trial court whether Michael was competent to make the decision to discontinue this PCRA appeal.
On August 27, 1998 and February 23, 1999 the Court of Common Pleas of York County held hearings on Michael’s mental competence, including psychiatric testimony on whether Michael’s decision not to contest his death sentence might have been the product of an underlying mental illness. The court found that no mental illness had been established on the record, and the court certified the record to this court with a finding that, based on psychiatric and other evidence, Michael was competent to withdraw his PCRA appeal, despite his definite awareness that to discontinue the appeal would most likely lead to his execution.
Michael raises nine issues in his appeal from denial of PCRA relief.
First, we will review the issues based on allegations of ineffectiveness of counsel. With respect to these issues, appellant must meet the standard set forth in Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987) and consistently reiterated and applied in subsequent cases. We have stated:
When an appellant argues that he was deprived of effective assistance of counsel, he must demonstrate, according to Commonwealth v. Pierce and its progeny: (1) that the*362 underlying claim is of arguable merit; (2) that counsel’s performance was unreasonable; and (3) that counsel’s ineffectiveness prejudiced defendant. Also, post-conviction review of claims previously litigated on appeal cannot be obtained by alleging ineffectiveness of prior counsel and by presenting new theories of relief to support previously litigated claims. Further, counsel cannot be considered ineffective for failing to assert a meritless claim.
Appellant is required by 42 Pa.C.S. § 9543 to demonstrate eligibility for relief under the PCRA. Section 9543(a) mandates that appellant’s allegation of error has not been previously litigated and that other conditions have been met. According to 42 Pa.C.S. § 9544(a)(2), an issue has been previously litigated when “the highest appellate court in which the petitioner could have had review as a matter of right has ruled on the merits of the issue.... ”
Commonwealth v. Peterkin, 538 Pa. 455, 460-61, 649 A.2d 121, 123 (1994), cert. denied, 515 U.S. 1137, 115 S.Ct. 2569, 132 L.Ed.2d 821 (1995) (citations omitted). A PCRA petitioner must also plead and prove that the allegation of error has not been waived. According to 42 Pa.C.S. § 9544(b), “an issue is waived if the petitioner could have raised it but failed to do so before trial, at trial, ... on appeal or in a prior state postconviction proceeding.” An additional requirement, relevant to one of Michael’s claims, is that a petitioner claiming that his guilty plea was unlawfully induced must also plead and prove that the circumstances make it likely that he is innocent. 42 Pa.C.S. § 9543(a)(2)(iii).
The first issue based on ineffectiveness is whether it was error for the trial court to deny Michael’s request to withdraw his guilty plea prior to trial, and whether trial counsel provided ineffective assistance with respect to this issue. Michael argues that the trial judge, in refusing the request, violated the holding in Commonwealth v. Forbes, 450 Pa. 185, 299 A.2d 268 (1973), that a petition to withdraw a guilty plea should be granted liberally, and must be granted if there is any fair and just reason therefore and if it will not substantially prejudice the prosecution. Michael claims that the trial court erred in
Two omissions require rejection of appellant’s argument. First, it ignores the dual requirements of Forbes— there must first be an allegation of a fair and just reason for the withdrawal of the guilty plea before the question of prejudice arises. At the time of Michael’s request to withdraw his plea, he alleged nothing that would justify withdrawal. His petition was based only on allegations that he was incompetent at the time of entering the guilty plea and that he was experiencing an inability to communicate with trial counsel. These claims are belied by the record and have been litigated adversely to Michael. It was not error to deny a petition which failed to allege any good ground for withdrawal of the plea. Second, appellant argues ineffectiveness in a vacuum. He suggests nothing that trial counsel should have done to obtain permission for appellant to withdraw his guilty plea. There are no allegations with respect to this issue which would satisfy the requirements of Commonwealth v. Peterkin, supra, that counsel’s act or omission was substandard, that there was no reasonable basis for it, and that appellant was prejudiced, i.e., the outcome of trial would likely have been different were it not for the questionable act or omission. Failure to allege what course counsel should have pursued in order to provide effective assistance precludes review by an appellate court. Commonwealth v. Pettus, 492 Pa. 558, 563, 424 A.2d 1332, 1335 (1981) (“Assertions of ineffectiveness in a vacuum cannot be ineffectiveness.”). We hold that Michael has not established ineffectiveness of counsel with respect to withdrawal of his guilty plea.
Again, Michael fails to specify what course his counsel could or should have pursued which would have constituted effective assistance. This omission cannot support a finding of ineffectiveness as it fails to fulfill the prefatory, foundational need to demonstrate that counsel’s course of conduct was actually substandard or questionable. This constitutes a violation of Pettus, supra, as it provides the court with no basis to evaluate counsel’s performance and destroys che argument of ineffectiveness. Without ineffectiveness, the issue has been waived for failure to raise the issue on direct appeal. 42 Pa.C.S. § 9544(b).
Michael’s next contention is that his guilty plea was the product of ineffective assistance of counsel. The gist of the argument is that, after he had confessed that he committed the murder and had provided corroborating evidence, when he decided a year later to change his story and claim he had nothing to do with the crime counsel was somehow remiss in refusing to assist him in presenting the new story at trial and thereby unlawfully inducing Michael’s guilty plea, which was rendered involuntary by counsel’s ineffectiveness. The crux of counsel’s alleged ineffectiveness was in concluding, without any investigation, that the exculpatory story was a complete fabrication.
We stated in Commonwealth v. Fahy, 549 Pa. 159, 164-65, 700 A.2d 1256, 1259 (1997):
The defendant in Michael waived his right to a trial and pleaded guilty to first degree murder and kidnaping [sic]. Before accepting the guilty plea, the trial court conducted an extensive colloquy to determine if the waiver was knowing and voluntary. The court questioned the defendant in order to determine:
That he had discussed the matter carefully with his attorney, that he understood the charges against him including the charge of first degree murder, his right to a*365 jury trial or bench trial, the presumption of innocence, the Commonwealth’s burden of proof, the right to confront the Commonwealth’s witnesses, his waiver of those rights, his limited rights upon pleading guilty, the voluntariness of his plea, the elements of first degree murder, that the penalty for first degree murder is either life imprisonment or death which would be determined at a separate hearing, that his rights at the sentencing hearing includ[e] the right to present any mitigating circumstances, and that he was satisfied with counsel.
Id., [544 Pa.] at 108 n. 2, 674 A.2d at 1045 n. 2.
At the sentencing phase, the defendant in Michael stipulated to the aggravating circumstances and waived his right to present any mitigating circumstances. The trial court again conducted an extensive colloquy to determine whether petitioner understood that, if he entered into the stipulation and waived his right to present mitigation evidence, the death penalty would be imposed. The court asked if he understood that he had a right to have a jury impose sentence and that a jury might sentence him to life imprisonment. This court held that under the facts in Michael the trial court appropriately accepted the defendant’s waivers.
The Fahy synopsis and the opinion in Michael itself clearly establish that this issue was previously litigated. Title 42 Pa.C.S. § 9544(a)(2) precludes revisitation of the issue.
The next issue is whether Michael’s counsel was ineffective for failing to investigate and present significant indicia of his incompetency to stand trial. Appellant argues that to subject a defendant to trial when he is incompetent is a violation of due process. Cooper v. Oklahoma, 517 U.S. 348, 116 S.Ct. 1373, 134 L.Ed.2d 498 (1996). He argues that counsel was or should have been aware that Michael had been a failure in school, had “learning problems,” had “attempted suicide” and “suffered depression,” was “very emotional,” “cried,” was “withdrawn,” “moody,” “isolated,” “defensive,” and “upset,” experienced “major mood swings,” and “suffered an abusive and neglectful childhood.” The argument is that
The issue of Michael’s competency has been litigated numerous times in numerous contexts during the prosecution of this case. He has failed to establish incompetency at any stage of this litigation, and has thus failed to meet his burden of proof under Commonwealth v. Kennedy, 451 Pa. 483, 487, 305 A.2d 890, 892 (1973) (“[T]he person asserting mental incompetence to stand trial has the burden of proving incompetency by a preponderance of the evidence.”). To couch' the competency question in terms of ineffectiveness of counsel is merely to restate the issue in a new guise; the issue has been finally litigated, however, and appellant is entitled to no relief. We stated in Commonwealth v. Henry, 550 Pa. 346, 367, 706 A.2d 313, 323 (1997), that “a defendant cannot obtain post-conviction review of previously litigated claims by alleging ineffective assistance of counsel and presenting new theories of relief,” citing Commonwealth v. Peterkin, supra.
Michael’s next argument is that trial counsel’s ineffectiveness at capital sentencing rendered the death sentence constitutionally infirm. The basis of this claim is that the stipulation of two aggravating circumstances — a significant history of prior felony convictions and killing during the perpetration of a felony — proves ineffectiveness of counsel because both aggravating factors were debatable. Moreover, counsel’s stipulation that there were no mitigating factors was a knowingly false representation which violated the rules of ethical conduct, according to Michael. Finally, he argues that counsel was obligated to investigate and present indicia of Michael’s mental shortcomings and psychological burdens known to counsel, and was ineffective in failing to do so.
Rule 1.2 of the Pennsylvania Rules of Professional Conduct provides in pertinent part:
*367 (a) A lawyer shall abide by a client’s decisions concerning the objectives of representation ... and shall consult with the client as to the means by which they are to be pursued .... In a criminal case, the lawyer shall abide by the client’s decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testify.
Counsel was ethically obligated to abide by Michael’s decision with regard to his guilty plea as well as his refusal to present evidence of mitigation. There is therefore no ground for alleging ineffectiveness in these aspects of trial counsel’s representation. In addition, as Michael presents this claim as a constitutional deprivation, he must plead and prove that the violation so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place. 42 Pa.C.S. § 9543(a)(2)(I). (See discussion of the statute infra.) This Michael has absolutely failed to do, and is therefore entitled to no relief on this claim.
The remaining arguments are not presented in terms of ineffectiveness of counsel, but allege trial court error or constitutional deprivations. The standards applicable to these issues are as follows. When alleging that the conviction or sentence resulted from a violation of the state constitution or the constitution or laws of the United States, the petitioner must plead and prove by a preponderance of the evidence that the violation, “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. § 9543(a)(2)(1). We have held that the same standard applies in penalty-phase proceedings, though, arguably, the question of guilt or innocence is, at that stage, no longer at issue. Commonwealth v. Chester, 557 Pa. 358, 374, 733 A.2d 1242, 1250 (1999).
The first of these claims is that Michael’s “stipulated-to” death penalty is constitutionally unreliable. He stipulated that there were two aggravating circumstances and no mitigating circumstances, requiring a death sentence. Michael cites Lockett v. Ohio, 438 U.S. 586, 602, 98 S.Ct. 2954, 57
Contrary to Michael’s characterization of the decision, however, a plurality in Lockett concluded that “the Eighth and Fourteenth Amendments require that the sentencer, in all but the rarest kind of capital case, not be precluded from considering as a mitigating factor, any aspect of a defendant’s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.” Id. at 604, 98 S.Ct. at 2964-65, 57 L.Ed.2d at 990 (emphasis in original). The Lockett plurality prohibits statutes which preclude the sentencer from considering evidence of mitigation “that the defendant proffers. ...” Id. (emphasis added). Contrary to appellant’s representation, the decision does not ’require a defendant to present mitigating evidence..
The next issue is whether the trial court erred in permitting Michael to plead guilty to first-degree murder and in failing to hold a degree-of-guilt hearing. Michael alleges that such a procedure is not permitted under this court’s precedents nor under Pa.R.Crim.P. 353, and, furthermore, violated his right against self-incrimination guaranteed by the federal and state constitutions.
We cannot review this allegation again, as it has been previously litigated and has been waived. On direct appeal, this court conducted an independent review of the record to determine whether there was sufficient evidence to support Michael’s plea to first-degree murder and imposition of the death sentence. Michael’s plea and judgment of sentence were affirmed. Michael, supra. Regarding the validity of the guilty plea and waiver here, see Fahy, supra, 549 Pa. at 164-65, 700 A.2d at 1259. Thus, the validity of the plea proceeding was previously litigated and is not cognizable under the PCRA. Commonwealth v. Henry, supra; 42 Pa.C.S. §§ 9543(a)(3) and 9544(b). In addition, Michael could have challenged the legality of the guilty plea proceeding on direct
The penultimate issue is whether Michael is entitled to relief from his kidnapping conviction. Michael notes the crucial nature of this conviction, as it constituted a ground for one of the aggravating circumstances supporting his death penalty. He alleges that there was no evidence of the specific intent required for the crime of kidnapping. This issue, however, was also litigated on direct appeal, Michael, supra, 544 Pa. at 112, 674 A.2d at 1048, and is therefore not subject to review in this collateral proceeding. 42 Pa.C.S. §§ 9543(a)(3) and 9544(b).
Finally, Michael argues that “the cumulative effect of counsel’s serious failures, and of other constitutional errors, so undermined the fairness of the proceedings that [his] conviction and sentence must be vacated.”
Appellant has not established any instance of counsel’s ineffectiveness nor any other constitutional deprivation. There can be no cumulative effect of prejudice when there was no harm in the first instance. Commonwealth v. McGill, 545 Pa. 180, 189, 680 A.2d 1131, 1136 (1996).
Having reviewed all of the claims raised by appellant in this appeal and found them to be without merit, we will affirm the trial court’s denial of PCRA relief.
Judgment affirmed.
. As presented in Michael's brief, they are:
1. Whether appellant was denied effective assistance of counsel in relation to the trial court’s improper denial of his requests to withdraw his guilty plea;
2. whether appellant was denied effective assistance of counsel in relation to the trial court’s improper denial of his requests for different counsel;
3. whether appellant’s guilty plea was entered as a result of ineffective assistance of counsel;
4. whether appellant’s counsel was ineffective for failing to investigate and present significant indicia of his incompetency;
5. whether the stipulated-to death penalty is constitutionally unreliable;
6. whether ineffective assistance of counsel at capital sentencing rendered the death sentence constitutionally infirm;
7. whether it was error to permit appellant to plead guilty to first-degree murder without holding a degree-of-guilt hearing;
8. whether appellant is entitled to relief from his kidnapping conviction; and
9. whether appellant is entitled to relief due to cumulative error.