Com. v. Zerby, J., III

J-S80030-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JAMES WALTER ZERBY, III
Appellant No. 283 MDA 2016
Appeal from the PCRA Order entered January 19, 2016
In the Court of Common Pleas of Luzerne County
Criminal Division at No: CP-40-CR-0003196-2012
BEFORE: LAZARUS, STABILE, and RANSOM, JJ.
MEMORANDUM BY STABILE, J.: FILED FEBRUARY 27, 2017
Appellant, James Walter Zerby, III, appeals from the January 19, 2016
order entered in the Court of Common Pleas of Luzerne County, denying his
petition for collateral relief pursuant to the Post Conviction Relief Act (PCRA),
42 Pa.C.S.A. §§ 9541-9546. Upon review, we affirm.
Following an investigation, Appellant was charged with unlawful
contact with a minor, involuntary deviate sexual intercourse, aggravated
indecent assault, and corruption of minors. On January 3, 2013, Appellant
pled guilty to unlawful contact with a minor. In exchange, the
Commonwealth withdrew all other charges against Appellant. At the time of
the plea, Appellant was represented by the Luzerne County Public Defender’s
Office. Prior to sentencing, Appellant retained private counsel, Tony Moses,
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Esquire. On June 13, 2013, the trial court granted Appellant’s motion to
withdraw his guilty plea.
On September 25, 2013, Appellant entered a no contest plea to the
unlawful contact with minors charge. On the same day, based on an
agreement between the parties, the trial court sentenced Appellant to three
years to ten years’ incarceration.
On March 10, 2014, the trial court held a Sexual Violent Predator
(SVP) hearing. On April 22, 2014, before the record of the SVP hearing was
closed, the trial court removed Attorney Moses from the case in light of his
suspension from the practice of law. The trial court reappointed the Luzerne
County Public Defender’s Office to represent Appellant. After granting
several continuance requests, on October 15, 2014, the trial court
adjudicated Appellant an SVP.
Appellant filed a direct appeal with this Court, challenging his SVP
adjudication. See Commonwealth v. Zerby, No. 68 MDA 2015,
unpublished memorandum at 2 (Pa. Super. filed September 9, 2015). Upon
review, we affirmed the judgment of sentence. Id.
Appellant timely filed a PCRA petition, challenging his no contest plea
counsel’s effectiveness. After holding a hearing, the PCRA court denied
Appellant’s PCRA petition. This appeal followed.
On appeal, Appellant argues his no contest plea was the result of
counsel’s ineffectiveness. Specifically, Appellant argues he was compelled to
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enter a no contest plea because his plea counsel was not prepared for trial.
Additionally, Appellant argues counsel did not adequately discuss with him
his trial strategy and/or defenses. Finally, Appellant argues counsel’s
appearance and demeanor also affected his decision to take the plea. Upon
review, we conclude no relief is due.
This Court recently reiterated the standard of review from the denial of
PCRA relief as follows:
“On appeal from the denial of PCRA relief, our standard and
scope of review is limited to determining whether the PCRA
court’s findings are supported by the record and without legal
error.” Commonwealth v. Edmiston, 65 A.3d 339, 345 (Pa.
2013) (citation omitted). “[Our] scope of review is limited to the
findings of the PCRA court and the evidence of record, viewed in
the light most favorable to the prevailing party at the PCRA court
level.” Commonwealth v. Koehler, 614 Pa. 159, 36 A.3d 121,
131 (2012) (citation omitted). “The PCRA court’s credibility
determinations, when supported by the record, are binding on
this Court.” Commonwealth v. Spotz, 610 Pa. 17, 18 A.3d
244, 259 (2011) (citation omitted). “However, this Court applies
a de novo standard of review to the PCRA court’s legal
conclusions.” Id.
Commonwealth v. Medina, 92 A.3d 1210, 1214-15 (Pa. Super. 2014) (en
banc).
This Court also recently summarized the three-pronged test applied
when determining ineffectiveness of counsel.
As originally established by the United States Supreme Court in
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80
L. Ed. 2d 674 (1984), and adopted by Pennsylvania appellate
courts, counsel is presumed to have provided effective
representation unless a PCRA petitioner pleads and proves all of
the following: (1) the underlying legal claim is of arguable merit;
(2) counsel’s action or inaction lacked any objectively reasonable
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basis designed to effectuate his client’s interest; and (3)
prejudice, to the effect that there was a reasonable probability of
a different outcome . . . if not for counsel’s error.
Commonwealth v. Wantz, 84 A.3d 324, 331 (Pa. Super. 2014) (citations
omitted).
The record belies Appellant’s claim of ineffective assistance of counsel.
“The longstanding rule of Pennsylvania law is that a defendant may not
challenge his guilty plea by asserting that he lied while under oath, even if
he avers that counsel induced the lies.” Commonwealth v. Pollard, 832
A.2d 517, 523 (Pa. Super. 2003) (citation omitted). If a person elects to
plead guilty, “he is bound by the statements he makes in open court while
under oath and he may not later assert grounds for [challenging the validity
of plea] which contradict the statements he made at his plea colloquy.” Id.
(citation omitted). Here, at the time of plea, Appellant voiced no concerns
regarding plea counsel’s preparation, fitness, or demeanor. Indeed,
Appellant stated that he had not been forced to plea and that he was
satisfied with his counsel. See PCRA Court Opinion, 1/19/16, at 7. Thus,
Appellant’s claim that counsel’s actions or inactions induced him into
entering the no contest plea lacks arguable merit.
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Appellant also failed to show he suffered prejudice from counsel’s
conduct. Concerning the prejudice prong of the Strickland test,1 this Court
has stated:
To succeed in showing prejudice, the defendant must show that
it is reasonably probable that, but for counsel’s errors, he would
not have pleaded guilty and would have gone to trial. Hill [v.
Lockhart, 474 U.S. 52, 59 (1985)]. The “reasonable
probability” test is not a stringent one. See Nix v. Whiteside,
475 U.S. 157, 175, 106 S. Ct. 988, 89 L. Ed. 2d 123 (1986)
(reasonable probability standard less demanding than
preponderance standard).
Commonwealth v. Hickman, 799 A.2d 136, 141 (Pa. Super. 2002).
Appellant failed to produce any evidence at the hearing addressing the
prejudice prong of the standard. Indeed, the PCRA court noted that:
Although [Appellant] testified about [plea counsel]’s failure to
adequately consult with him prior to the scheduled trial, he
never testified about any effect his counsel’s failure to contact
him had. For example, there was no testimony that, had there
been a trial, the outcome would have been different. Nor did
[Appellant] testify regarding evidence which may have supported
his innocence that [plea counsel] failed to investigate. Indeed,
[Appellant] failed to show that, had [plea counsel] acted
differently, he would not have entered the plea of nolo
contendere and would have proceeded with the trial. Instead,
the record reflects that [Appellant] chose to accept the plea
agreement in exchange for the Commonwealth dropping the
other charges pending against him.
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1
We need not address all prongs of the Strickland standard. As long as
one the three prongs has not been met, there cannot be a finding of
ineffective assistance of counsel. See, e.g., Commonwealth v. Thomas,
44 A.3d 12, 17 (Pa. 2012) (stating that a failure to satisfy any of the three
prongs of the ineffectiveness test requires rejection of an ineffective
assistance of trial counsel claim).
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PCRA Court Opinion, 1/19/16, at 7. Upon review of the record, we agree
with the PCRA court’s analysis and conclusions.
Similarly, in his brief to this Court, Appellant does not specifically
discuss the prejudice he suffered from plea counsel’s alleged
ineffectiveness.2 Indeed, nowhere did Appellant explain what strategy
counsel failed to employ, or what defense counsel failed to raise or pursue.
Additionally, nowhere did Appellant state he would have faced a trial on the
original charges of involuntary deviate sexual intercourse, aggravated
indecent assault, indecent assault, and corruption of minors, rather than
take a no contest plea to unlawful contact with a minor but for counsel’s
fitness, demeanor, appearance, or preparation. In the end, Appellant
merely offers a bald, unsubstantiated, and unarticulated claim of
ineffectiveness, for which no relief is due.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/27/2017
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2
More precisely, in his brief, Appellant did not specifically mention or
analyze any prong of the ineffectiveness standard.
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