Com. v. McMillen, K.

J-S25012-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KEENAN MCMILLEN :
:
Appellant : No. 151 WDA 2022
Appeal from the PCRA Order Entered January 6, 2022
In the Court of Common Pleas of Elk County Criminal Division at No(s):
CP-24-CR-0000635-2019
BEFORE: BENDER, P.J.E., DUBOW, J., and KING, J.
MEMORANDUM BY BENDER, P.J.E.: FILED: September 12, 2022
Appellant, Keenan McMillen, appeals from the post-conviction court’s
January 6, 2022 order denying his timely-filed petition under the Post
Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. Appellant contends
that his trial counsel was ineffective for advising him to enter a guilty plea,
resulting in Appellant’s entering an unintelligent, unknowing, and/or
involuntary plea. After careful review, we agree with Appellant. Thus, we
reverse the PCRA court’s order, vacate his judgment of sentence, and remand
for further proceedings.
J-S25012-22
The facts underlying Appellant’s convictions are not pertinent to our
disposition of his present appeal. Appellant summarizes the procedural history
of his case, as follows:1
Appellant was charged with Aggravated Assault (F1) and related
charges on November 27, 2019. Appellant asserted his innocence
and intended to challenge his charges. Appellant made no
admissions or confessions in this matter. Appellant was
represented by Elk County Public Defender Gary Knaresboro,
Esquire[,] at his preliminary hearing held December 4, 2019.
Appellant elected to have a hearing to test the Commonwealth’s
case.
At the preliminary hearing, the Commonwealth presented only
hearsay testimony from the arresting officer without objection
from Appellant’s counsel. The [o]fficer merely repeated what the
victim allegedly told him about the incident. Appellant’s charges
were held [for] court. Appellant was unhappy with his attorney
and hired … Christopher Martini[, Esquire,] to challenge his case.
While his case was pending, our Supreme Court announced
Commonwealth v. McClelland, 233 A.3d 717 (Pa. 2020).
McClelland held that the Commonwealth’s use of hearsay
evidence alone to establish [a] prima facie case at [a] preliminary
hearing and to bind over [a] defendant[’s charges] for trial
violates due process and the right to confront witnesses under the
state and federal constitution. Id. [(citing] Pa.R.Crim.P. 542[)].
After this important decision, upon his counsel’s advice, Appellant
entered a [guilty] plea to Simple Assault (M2) and Recklessly
Endangering [Another Person] (M2), which resulted in [a] 2-4 year
sentence and a serious parole revocation. Appellant and his
counsel were both unaware of the McClelland case at the time.
After his sentencing, while incarcerated, Appellant was made
aware of McClelland, supra, by a newspaper article. Appellant
recognized the issue applied to his case and attempted to contact
____________________________________________
1We note that the Commonwealth elected not to file an appellee’s brief in this
case, instead filing a letter stating that it is relying on the PCRA court’s order
and opinion filed on January 6, 2022. The court did not set forth a procedural
history in its opinion and, thus, we rely on Appellant’s recitation herein.
-2-
J-S25012-22
Attorney Martini. Because he did not get assistance from Attorney
Martini in this regard, on February 17, 2021, Appellant filed a
pro[]se Petition for PCRA [r]elief[,] raising this singular[,
McClelland] issue [and] seeking withdrawal of his plea.
Undersigned counsel was appointed. An [a]mended PCRA
[petition] was filed raising this singular issue. After a hearing on
his PCRA [petition], the [c]ourt denied relief.
Appellant’s Brief at 5-6.
Appellant filed a timely notice of appeal from the order denying his
petition, and he also timely complied with the PCRA court’s subsequent order
to file a Pa.R.A.P. 1925(b) concise statement of errors complained of on
appeal. Herein, Appellant states one issue (with two sub-parts) for our
review:
I. Did the [PCRA c]ourt err by failing to find that trial counsel’s
failure to provide Appellant with his constitutionally
guaranteed right to confrontation was ineffective
[assistance] under both the Strickland[2] standard and the
per se prejudice standard as follows:
A. By failing to find that trial counsel’s failure to file a
Petition for Writ of Habeas Corpus deprived Appellant of
his constitutionally guaranteed right to confrontation by
permitting charges to be bound in through
unconstitutional means at his preliminary hearing.
B. By failing to find that Appellant’s plea was involuntary
because trial counsel incompetently advised him to enter
a plea to charges which were bound in through
unconstitutional means at his preliminary hearing.
Id. at 4.
“This Court’s standard of review from the grant or denial of post-
conviction relief is limited to examining whether the lower court’s
____________________________________________
2 Strickland v. Washington, 466 U.S. 668 (1984).
-3-
J-S25012-22
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 or she received ineffective
assistance of counsel, our Supreme Court has directed that the following
standards apply:
[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.” 42 Pa.C.S. § 9543(a)(2)(ii).
“Counsel is presumed effective, and to rebut that presumption,
the PCRA petitioner must demonstrate that counsel’s performance
was deficient and that such deficiency prejudiced him.”
[Commonwealth v.] Colavita, … 993 A.2d [874,] 886 [(Pa.
2010)] (citing Strickland, supra). In Pennsylvania, we have
refined the Strickland performance and prejudice test into a
three-part inquiry. See [Commonwealth v.] Pierce, [527 A.2d
973 (Pa. 1987)]. Thus, to prove counsel ineffective, the petitioner
must show that: (1) his underlying claim is of arguable merit; (2)
counsel had no reasonable basis for his action or inaction; and (3)
the petitioner suffered actual prejudice as a result.
Commonwealth v. Ali, … 10 A.3d 282, 291 (Pa. 2010). “If a
petitioner fails to prove any of these prongs, his claim fails.”
Commonwealth v. Simpson, … 66 A.3d 253, 260 ([Pa.] 2013)
(citation omitted). Generally, counsel’s assistance is deemed
constitutionally effective if he chose a particular course of conduct
that had some reasonable basis designed to effectuate his client’s
interests. See Ali, supra. Where matters of strategy and tactics
are concerned, “a finding that a chosen strategy lacked a
reasonable basis is not warranted unless it can be concluded that
an alternative not chosen offered a potential for success
substantially greater than the course actually pursued.” Colavita,
… 993 A.2d at 887 (quotation and quotation marks omitted). To
demonstrate prejudice, the petitioner must show that “there is a
reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceedings would have been different.”
-4-
J-S25012-22
Commonwealth v. King, … 57 A.3d 607, 613 ([Pa.] 2012)
(quotation, quotation marks, and citation omitted). “‘[A]
reasonable probability is a probability that is sufficient to
undermine confidence in the outcome of the proceeding.’” Ali, …
10 A.3d at 291 (quoting Commonwealth v. Collins, … 957 A.2d
237, 244 ([Pa.] 2008) (citing Strickland, 466 U.S. at 694….)).
Commonwealth v. Spotz, 84 A.3d 294, 311-12 (Pa. 2014).
Here, Appellant contends that his trial counsel, Attorney Martini, acted
ineffectively by not advising Appellant that, in addition to pleading guilty or
proceeding to trial, he had a third option of filing a petition for writ of habeas
corpus based on McClelland’s holding that hearsay evidence alone cannot
establish a prima facie case at a preliminary hearing. See McClelland, 233
A.3d at 734 (citing Pa.R.Crim.P. 542(E)) (disapproving of Commonwealth v.
Ricker, 120 A.3d 349, 357 (Pa. Super. 2015) (concluding that under Rule
542(E), hearsay evidence alone is sufficient to establish a prima facie case at
the preliminary hearing)). Appellant contends that had he known about this
third option of challenging his preliminary hearing under McClelland, he
would have opted to file a petition for writ of habeas corpus rather than
pleading guilty. However, because Attorney Martini was unaware of
McClelland, he ineffectively advised Appellant to enter a guilty plea to
“charges that were illegally bound over with incompetent evidence.”
Appellant’s Brief at 8. Appellant insists that, due to his counsel’s
ineffectiveness, his plea was not knowing, intelligent, and/or voluntary.
Initially, we conclude that Appellant’s underlying claim has arguable
merit. The following facts are undisputed: (1) McClelland changed the law
regarding the use of only hearsay evidence to prove a prima facie case at a
-5-
J-S25012-22
preliminary hearing; (2) the Commonwealth relied solely on the hearsay
testimony of Trooper Palmer to establish a prima facie case and bind
Appellant’s charges for trial; (3) Attorney Martini did not discuss the
applicability of McClelland with Appellant, or advise him of the option of filing
a petition for writ of habeas corpus to challenge the sufficiency of the
Commonwealth’s evidence at the preliminary hearing under the rationale of
McClelland. Thus, we discern arguable merit to Appellant’s claim that he
entered an unknowing and/or involuntary plea because he was unaware of the
McClelland decision and possible implications thereof.
In regard to the reasonable-basis prong of the test for proving
ineffectiveness, the PCRA court concluded that even had Attorney Martini
known about McClelland, he “offered detailed and convincing testimony to
establish the ‘reasonable strategic basis’ for his advice to [Appellant] to enter
a guilty plea.” Id. at 2 (unnumbered). The court could “find no short-coming
in the effectiveness of [Attorney] Martini as it relates to the advice to enter
into a guilty plea, considering the substantial risks involved in trial and the
plea offer made by the Commonwealth.” Id.
The court is correct that, at the PCRA hearing, Attorney Martini offered
several reasons why he would not have filed a petition for writ of habeas
corpus, even had he discovered McClelland. See PCRA Hearing, 9/29/21, at
31-32. However, counsel never discussed these reasons with Appellant, as
counsel was unaware of the McClelland decision. Ultimately, the problem is
that Appellant was unaware of McClelland and his option of filing a petition
-6-
J-S25012-22
for writ of habeas corpus rather than pleading guilty. Attorney Martini offered
no explanation for his failure to discover McClelland. Thus, we cannot agree
with the court that counsel had a reasonable basis for not knowing about that
applicable decision and advising Appellant accordingly.
Concerning the prejudice prong of the ineffectiveness test, Appellant
initially avers that we should apply a per se prejudice standard to his claim,
in “that the deprivation of [his] right to confrontation acknowledged in
McClelland[] is in and of itself sufficient prejudice requiring no further proof
before reinstatement of this lost right is warranted.” Id. Appellant
acknowledges that “the recognized instances of per se ineffectiveness entitling
a defendant to automatic relief are extremely narrow.” Id. at 27. He also
quotes our Supreme Court’s pronouncement that “[i]t is well established that
the decision whether to presume prejudice or to require an appellant to
demonstrate actual prejudice ‘turns on the magnitude of the deprivation of
the right to effective assistance of counsel.’” Id. (quoting Commonwealth
v. Rosado, 150 A.3d 425, 431 (Pa. 2016) (citation omitted)).
Here, Appellant has not demonstrated that the magnitude of the
deprivation he alleges warrants a presumption of prejudice. Notably,
Appellant fails to cite any case applying a presumption of prejudice to a claim
that counsel’s ineffectiveness deprived the defendant of his right to confront
witnesses against him. Indeed, our Supreme Court has applied the traditional
prejudice standard to such claims. See, e.g., Commonwealth v. Hanible,
30 A.3d 426, 439, 443 (Pa. 2011) (articulating the three-prong Strickland
-7-
J-S25012-22
test for proving counsel’s ineffectiveness before assessing Hanible’s claims
“that he was denied the right of confrontation” due to the alleged
ineffectiveness of his counsel). Accordingly, we reject Appellant’s argument
that we must apply a per se prejudice standard to his claim of ineffectiveness.
However, Appellant alternatively claims he can meet his burden of
proving prejudice because “Attorney Martini’s ignorance of the criminal law
resulted in erroneous advice and [caused] an unknowing and unintelligent
decision by Appellant” to plead guilty. Id. at 8. Appellant insists that, had he
“been fully informed as to his constitutional rights” as outlined in McClelland,
he would not have pled guilty or elected to proceed to trial, but instead would
have chosen “to file a Petition for Writ of Habeas Corpus to test his charges at
a prima facie level.” Id. Accordingly, Appellant claims that Attorney Martini
acted ineffectively and he should be permitted to withdraw his plea and file a
petition for writ of habeas corpus.
In rejecting Appellant’s ineffectiveness claim, the PCRA court first noted
that the representation of Appellant’s preliminary hearing counsel, Gary
Knaresboro, Esq., was terminated prior to McClelland’s being decided and,
thus, Attorney Knaresboro could not be deemed ineffective for not predicting
the change in the law from Ricker to McClelland. See PCRA Court Opinion,
1/3/22, at 1 (unnumbered). We agree.
Next, the PCRA court concluded that Attorney Martini did not act
ineffectively by permitting Appellant to plead guilty. The court stressed that
the preliminary hearing “was not defective when held.” Id. It then evaluated
-8-
J-S25012-22
“whether [Attorney] Martini’s representation fell short when he in fact failed
to discover McClelland prior to the guilty plea and advise his client in that
regard[,]” and whether Appellant had proven that ‘but for counsel’s conduct,
there is a reasonable probability that the outcome of the proceedings would
have been different[.]’” Id. (quoting Strickland, supra). Notably, the court
examined whether the result of the preliminary hearing would have been
different, had counsel filed a petition for writ of habeas corpus and a new
preliminary hearing been held. The court explained:
[Appellant] relies on the suggestion that the witness, Christopher
Yetzer, would not have appeared at any subsequent [preliminary
hearing] or trial, and that with the protections of the developing
law from McClelland, the “outcome of the proceedings would
have been different.” This simply is an unfounded leap of logic
that this [c]ourt is not willing to make. The facts simply do not
support it.
The sole evidence on the subject demonstrates that the
Commonwealth sought to bring Yetzer to the original [preliminary
hearing], and attempted to subpoena him to that [h]earing. The
subpoena could not be served and Yetzer failed to appear. That
is the extent of the record. Any speculation or argument beyond
that cannot be the foundation of a successful [p]etition [for writ
of habeas corpus], without more. No evidence was presented of
Yetzer’s unavailability for the trial or for a subsequent [preliminary
hearing]. If the testimony of Trooper Palmer is any indication, the
testimony of Yetzer would have been sufficient to bind the case
over after a McClelland-required [preliminary hearing], if one
had been sought, and may have been sufficient to convict at trial
if believed by the trier of fact. To simply suggest that failure of
Yetzer to be served prior to the original [preliminary hearing]
(when there was no real procedural need for him at that stage of
the law before McClelland) would have meant his unavailability
throughout, is simply not supported by the record.
Accordingly, this Court, upon review of the [PCRA p]etition, and
the evidence on the record, finds that [Attorney] Martini had a
-9-
J-S25012-22
“reasonable strategic basis” for encouraging the plea, and that
had he discovered McClelland and advised his client to seek a
new [preliminary hearing], there is no evidence that “there is a
reasonable probability that the outcome of the proceedings would
have been different.”
Id. at 2-3 (unnumbered).
The court’s analysis of Appellant’s ineffectiveness claim is misplaced.
“Allegations of ineffectiveness in connection with the entry of
a guilty plea will serve as a basis for relief only if the
ineffectiveness caused the defendant to enter an involuntary or
unknowing plea.” Commonwealth v. Moser, 921 A.2d 526, 531
(Pa. Super. 2007) (quoting Commonwealth v. Hickman, 799
A.2d 136, 141 (Pa. Super. 2002)). “Where the defendant enters
his plea on the advice of counsel, the voluntariness of the plea
depends on whether counsel’s advice was within the range of
competence demanded of attorneys in criminal cases.” Moser,
supra.Commonwealth v. Kelley, 136 A.3d 1007, 1012-13 (Pa. Super. 2016)
(citations omitted).
Here, Appellant testified at the PCRA hearing that Attorney Martini gave
him two choices: proceed to trial and potentially get a sentence of 10 to 20
years’ incarceration, or plead guilty and receive a sentence of 2 to 4 years’
incarceration, consecutive to any sentence he would receive for the parole
violation that his pleading guilty would cause. See N.T. Hearing, 9/29/21 at
58-59. Appellant testified that he did not like the plea deal and wanted to
“challenge the charges[,]” but he feared receiving a lengthier sentence if he
went to trial. Id. at 58, 59. According to Appellant, he asked Attorney Martini
to find out if the victim was refusing to cooperate or still “sticking by his
story[,]” but Attorney Martini refused, claiming “it was a conflict of interest”
- 10 -
J-S25012-22
for him to contact the victim. Id. at 59, 60. After multiple conversations,
Appellant decided to plead guilty. Id. at 60. When asked if he would have
pled guilty had he “known that there was actually a third option, which would
be to get back to the preliminary hearing [stage] and force the [victim] to
testify under oath so [his] attorney could confront him and the case,”
Appellant answered, “That’s what I would have chosen to do absolutely.” Id.
at 61. In response to the question of whether he felt he entered his plea
knowingly, Appellant stated: “I don’t feel like I had all the information at the
time. … I know now that there were other options. At the time, … everything
that [counsel] told me [indicated that] the only choice I had was to take the
plea or lose at trial.” Id. at 61-62.
We conclude that Attorney Martini’s failure to discover McClelland and
advise Appellant about his option to file a petition for writ of habeas corpus
challenging the adequacy of the hearsay evidence offered at his preliminary
hearing was not “within the range of competence demanded of attorneys in
criminal cases.” Moser, 921 A.2d at 531. The fact that Appellant was forced
to decide whether to enter a guilty plea without this pertinent information
rendered his plea unknowing and/or involuntary. Appellant’s testimony
demonstrated that, but for counsel’s failure to advise him about McClelland,
he would not have pled guilty. Accordingly, he has established that he was
prejudiced by Attorney Martini’s deficient representation. Therefore, we
reverse the PCRA court’s order denying his petition, and vacate his judgment
of sentence. We remand for the court to appoint Appellant new counsel who
- 11 -
J-S25012-22
shall advise him about McClelland and permit Appellant to decide if he wishes
to file a petition for writ of habeas corpus challenging the sufficiency of the
evidence presented at his preliminary hearing.
Order reversed. Judgment of sentence vacated. Case remanded for
further proceedings. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 09/12/2022
- 12 -