Com. v. Patterson, J.

J-S60010-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JAMES JERALD PATTERSON
Appellant No. 180 MDA 2014
Appeal from the PCRA Order June 27, 2013
In the Court of Common Pleas of York County
Criminal Division at No(s): CP-67-CR-0000319-2011
CP-67-CR-0007400-2010
CP-67-CR-0007454-2010
BEFORE: OTT, J., STABILE, J., and JENKINS, J.
MEMORANDUM BY OTT, J.: FILED FEBRUARY 13, 2015
James Jerald Patterson appeals from the order entered on June 27
2013, in the Court of Common Pleas of York County, denying his petition
filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. § 9541 et
seq. In 2012, a jury convicted Patterson of three counts of robbery and one
count of criminal conspiracy. The trial court sentenced Patterson to 23 to 46
years’ incarceration. Patterson’s direct appeal afforded him no relief. He
filed a timely PCRA petition which was denied after a hearing. In this timely
appeal, Patterson claims the PCRA court erred in: (1) not finding trial
counsel ineffective in representing him in plea negotiations, (2) not finding
trial counsel ineffective for failing to call witnesses at trial, (3) not finding
J-S60010-14
trial court ineffective for failing to have him evaluated to determine
competency for trial, and (4) not finding PCRA counsel ineffective for failing
to call witnesses to the PCRA hearing and for failing to obtain a competency
evaluation.1 Issues two and four are partially related in that the witnesses
would have purportedly supported Patterson’s claim of duress. After a
thorough review of the submissions by the parties, relevant law, and the
certified record, we affirm based on the sound reasoning and analysis of the
PCRA court.2
Because we are relying upon the PCRA court’s opinion, and the facts
and circumstances are known to the parties, we will not restate that which
the PCRA court has already related.
However, we note,
[o]ur standard of review of a trial court order granting or
denying relief under the PCRA calls upon us to determine
whether the determination of the PCRA court is supported by the
evidence of record and is free of legal error. The PCRA court's
findings will not be disturbed unless there is no support for the
findings in the certified record.
____________________________________________
1
We have reworded Patterson’s claims.
2
We note that there is no question that the instant PCRA petition was timely
under the statute. Therefore, we will not reiterate the statutory provisions
regarding the timely filing of a PCRA petition. Patterson’s judgment became
final on October 11, 2012 when time expired to seek Pennsylvania Supreme
Court review of his direct appeal. The instant PCRA petition was filed on
March 8, 2013, well within the one-year limit to file a PCRA petition.
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J-S60010-14
Commonwealth v. Heredia, 97 A.3d 392, 394 (Pa. Super. 2014) (citation
omitted).
Our comprehensive review of this matter leads us to the inescapable
conclusion that the PCRA court’s ruling is supported by the record and is free
of legal error.
We write additionally to address Patterson’s claim that PCRA counsel
was ineffective for failing to interview and present at the PCRA hearing, the
witnesses trial counsel failed to call. We note that Patterson never
complained to the PCRA court, during the hearing, that counsel had failed to
call the same witnesses trial counsel had failed to call. PCRA counsel’s
ineffectiveness was never raised before the PCRA court in a timely manner.
See Commonwealth v. Rigg, 84 A.3d 1080, 1085 (Pa. Super. 2014)
(petitioner cannot raise claim of PCRA counsel ineffectiveness for the first
time in a Pa.R.A.P. 1925(b) statement), citing Commonwealth v. Ford, 44
A.3d 1190 (Pa. Super. 2012). Therefore, the issue has been waived. 3
____________________________________________
3
However, we note that the claim of PCRA counsel’s ineffectiveness could
not succeed here where the PCRA court determined there was no prejudice
to Patterson for the failure to call those same witnesses at trial.
Additionally, to the extent Patterson’s claim regarding his competency
extends to the PCRA proceedings, he has failed to articulate any prejudice in
light of his active participation in the PCRA proceedings.
-3-
J-S60010-14
Order affirmed. Parties are directed to attach a copy of the PCRA
court’s Order and Opinion dated June 27, 20134 and Pa.R.A.P. 1925(a)
Opinion dated March 26, 2014.
Judge Stabile joins in this memorandum.
Judge Jenkins concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/13/2015
____________________________________________
4
The Order and Opinion of June 27, 2013, found at number 34 in the
certified record, is essentially the transcript of Judge Richard K. Renn’s order
from the bench following the PCRA hearing. See N.T. PCRA Hearing,
6/27/2013, at 43-50.
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<: '
IN THE COURT OF COMMON PLEAS OF YORK COUNTY,
PENNSYLVANIA
'CP-67-CR-0007400-2010'
-: '
'CP-67-CR-0007454-2010'
I.
1- . 'CP-67-CR-0000319-2011'
1- ,
COMMONWEALTH CP-67-CR-0007400-2010
VS 1) Robbery
JAMES JERALD PATTERSON CP-67-CR-0007454-2010
1) Robbery
I., '
CP-67-CR-0000319-2011
1) Robbery
( PCRA)
r--
York, Pa., Thursday, June 27, 2013
Before Honorable Richard K. Renn, Judge
,
-
APPEARANCES:
STEPHANIE LOMBARDO, Esquire
Assistqnt District Attorney
For the Commonwealth
WILLIAM H. GRAFF, JR., Esquire
For the Defendant
* * *
o R D E R
First of all, I would like to offer
three observations about an attorney working with the
client. An attorney is just the client's mouth piece
to pursue whatever the client wants to say to the Court
or the jury. The attorney is expected to use his
expertise and his good judgment in what to present to
the Court and, more importantly, what to present to the
jury.
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The mere fact that the attorney doesn't
just say everything that the client wants him to say or
present every piece of evidence or every witness that
the client wants, does not in itself mean the attorney
is ineffective.
( ,
Second, the amount of time that an
<. attorney spends with the client is not indicative of
I the quality of the representation. It could be some
cases require extraordinary time spent with the client
t. and other cases very little. So, the fact that an
....
1- "
attorney may not spend the time with the client, the
<:. • client was not indicative of the quality of
representation.
1-' ,
.; .
Finally, the failure to exhaust all
arguable remedies or take all actions or courses of
I., ' conduct that the client expects is not of and in itself
indicative of ineffective representation.
Our Courts have been very clear that a
I" ' person in order to have relief under the Post
(' Conviction Relief Act must prove by preponderance of
the evidence that a conviction resulted from
ineffective assistance of counsel. That the allegation
has not previously been litigated and has not been
waived.
The Appellate Courts presume that
counsel's assistance is constitutionally effective if
the particular course of action chosen by the counsel
was reasonably designed to effectuate his client's
interests.
In order to show ineffective assistance
of counsel, a criminal Defendant has to show that the
underlying planes of arguable merit that counsel's
performance had no reasonable basis and that his
ineffectiveness worked to the Defendant's prejudice.
The Defendant essentially raises four'
issues that might afford relief under the Post
Conviction Relief Act. First, he raises the issue that
he would have accepted a plea agreement as it was
presented to the Court. Initially, he would have
presented a plea agreement had he known there was a
plea proposal.
As the evidence unfolded, it is
abundantly clear that the Defendant knew of the plea
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,.
,. proposal. The plea proposal was, in fact, communicated
certainly if not verbally then in writing by Mr. Rader
prior to trial and that plea proposal was 10 to 30
years.
We note that a Defendant does not have a
constitutional right to a plea proposal. Does not have
a constitutional right to plea agreement.
:. .
Notwithstanding what the Supreme Court
I .
r .
seems to have said once the plea agreement is actually
1- ; proposed in this case and we would note that to the
extent that the testimony of the Defendant differs from
that of Mr. Rader presented by the Commonwealth, it
I·
resolved issues of credibility in favor of Mr. Rader.
Mr. Rader was clear the Defendant was offered a plea
agreement that he was not happy with.
~ .
The Defendant negotiated back and forth
\. . and managed to get the initial offer down 5 years. He
still was not happy with it and he decided to go to
trial.
We can see no ineffective assistance of
counsel in any of that process. Mr. Patterson was made
aware of the proposal. The fact that it was not in
accord with his initial expectations, does not make
counsel ineffective. It does not implicate the
constitutional issues raised in the Supreme Court case
that we cited to counsel.
In fact, the only credible evidence that
we have of the status of plea negotiations comes from
Mr. Rader, since Mr. Patterson's testimony as to why he
wanted to go to trial it was hopelessly contradictory
and ranged anywhere from not being told of the plea
agreement to wanting the Court to hear everything that
happened in the case.
Accordingly, we cannot conclude that he
has sustained his burden with regard to the issue of
the plea agreement.
The next issue he raises involves his
claim of duress. In that regard he raises two sub
issues. The first is that witnesses were not presented
on his behalf in order to advance the claim of duress.
Mr. Rader testified that he interviewed one witness who
would not have been helpful. Frankly, the Court has to
agree with that assessment based on what Mr. Rader told
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( ,
( . us. That it's even doubtful the testimony would be
permitted given that it was hearsay at least based on
hearsay testimony even if the witness had been offered.
The second witness, the Defendant's own
mother, that Mr. Rader attempted to contact her and \'ias
" ;
unsuccessful. Certainly presumably she was accessible
to the Defendant as well. She did not contact Mr.
<.
,. Rader.
I. We cannot conclude that he was
ineffective for not interviewing her under the
,, circumstances and not presenting her testimony to the
Court if he had in some way forced her to come to Court
). , to testify.
And finally, the probation officer whom
,. Mr. Rader indicated he did not interview would have
presented its own issues with regard to the nature of
the relationship between Mr. Patterson and the
probation officer, given Mr. Patterson's prior record.
Even if we accept for the sake of argument that the
probation officer could have testified to anything
advancing the duress defense and based on the
information that Mr. Rader had available, there is no
discussion that would have occurred if a decision was
made to place Mr. Niehenke on the stand.
Under the circumstances then, failure to
call the witnesses is not ineffective as counsel had a
reasonable basis for not doing so. That certainly if
not advance his client's cause, certainly did not hurt
his client's cause by attempting to present such
evidence.
The related claim which the Defendant
continually raises is that he was forced to testify
because there were no witnesses here. The Court, as we
were listening to Mr. Rader's testimony about his
assessment of presenting duress defense and in going
back and reviewing the trial dynamics, we find it
difficult to conclude how a duress defense would have
presented in context.of this trial without the
Defendant testifying. I can't imagine that any
evidence, there was certainly no evidence other than
the Defendant's own testimony, that would indicate any
kind of duress being used.
As we recall the testimony, the
Defendant was always alone in the stores. There was
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(t ,'
with the exception of perhaps one of the cases someone
may have come in at the,
the· conclusion of the robbery. It
was a codefendant with the Defendant, but we find it
difficult to conclude that a defense of duress could
have been presented by other than having the Defendant
<: testify.
There was no testimony by the Defendant
.:' ''
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or anyone else that he was forced, threatened, coerced
t, ,•
into testifying. Only that he had to testify because
I,
I . other witnesses weren't present. That is not
ineffective counsel.
,. '
Under the circumstances, it was probably
i; the only course of action available to Mr. Rader at the
time to present the defense.
I., '
And finally, with regard to the issue of
competency. There were tl'iO
two related issues. One,
whether the Defendant was criminally responsible for
his acts. The available evidence was that he was.
.
( ',
(
t ' . The other issue given the benefit to the
Defendant not directly dealt with in the evaluation was
whether he was competent to stand trial. Mr. Rader
certainly thought he was.
The Court recalls the Defendant was
actively involved in his case throughout the course of
the trial. He did not appear to be lacking competency
to understand what was going on. He testified on his
own behalf. He presented his defense. He was actively
involved in the plea negotiations.
There is no basis on which we would be
concerned that the Defendant was not competent to
testify or participate in his defense.
In short, we conclude that the evidence
does not sustain the Defendant's burden of ineffective
assistance of counselor any other counts grounds for
relief under the Post Conviction Relief Act, and,
accordingly, we will deny the petition.
We direct that a copy of this statement
sent to counsel for the parties, also to Mr. Patterson
at inmate number KM5625 SCI Albion 10745, Route 18,
Albion, PA 16475.
* * *
cmm 7-1-13
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IN THE
IN THE COURT
COURT OF
OF COMMON
COMMON PLEAS
PLEAS OF
OF YORK
YORK COUNTY,
COUNTY,
PENNSYLVANIA
PENNSYLVANIA
'CP-67-CR-0007400-2010'
·CP-67-CR·0007400-2010·
COMMONWEALTH
COMMONWEALTH CP-67-CR-0007400-2010
CP-67-CR-0007400-2010
II,,
VS
{-{- ,,
JAMES JERALD PATTERSON
II ,I
ii ,,
PROOF OF SERVICE
On Monday, July 1, 2013, I the undersigned
served the Order dated Thursday, June 27, 2013, in this
matter by personal service upon each of the following
II ,, offices:
Yor~ County Cler~ of Courts Office
a) Original
b) Copy for private defense counsel/pro se
defendant to be served by Clerk
York County District Attorney's Office
Judge Richard K. Renn
York County Adult Probation Office
Christine M. Myers,
Official Court Reporter
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