Com. v. Reeve, O.

J-S08012-15
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
OMAR REEVE, :
:
Appellant : No. 1401 EDA 2014
Appeal from the PCRA Order April 24, 2014,
Court of Common Pleas, Philadelphia County,
Criminal Division at No(s): CP-51-CR-0003260-2008
BEFORE: DONOHUE, WECHT and JENKINS, JJ.
MEMORANDUM BY DONOHUE, J.: FILED FEBRUARY 27, 2015
Appellant, Omar Reeve (“Reeve”), appeals from the order entered on
April 24, 2014 by the Court of Common Pleas, Philadelphia County,
dismissing his petition for relief pursuant to the Post-Conviction Relief Act
(“PCRA”).1 For the reasons set forth herein, we affirm the PCRA court’s
order.
The facts and procedural history are as follows:
On February 8th of 2008 at around 1:40 AM the
defendant, Omar Reeve, was operating a blue green
Buick LaSabre in the area of 1400 North Ithan
Street. Nafas Dekeyser [] was a passenger in the
car. Officers took note of the Buick because it fit the
flash for a vehicle taken twenty minutes prior in a
carjacking. [Reeve] pulled over the Buick in front of
1409 North Ithan Street. Both he and passenger
quickly exited the car. Officers saw [Reeve] throw a
black object into the yard area of 1409 North Ithan
1
42 Pa.C.S.A. §§ 9541-46.
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and heard it make a metal clanking sound when it hit
the concrete. Officers placed both [Reeve] and
Dekeyser into their vehicle. [Reeve] got out [of the
police vehicle] and began to run away. He was
eventually apprehended by another officer … and
was found to be wearing a bulletproof vest. Officer
Anderson then recovered a black semiautomatic
firearm thrown by [Reeve] in front of 1409 North
Ithan Street which the gun was found to be in stolen
status. A search warrant was then executed on the
Buick and officers recovered a black Ruger from
under the drive[r’s] seat. [Reeve] ha[d] prior
convictions which [made] him ineligible to possess a
firearm under [Pa.C.S.A. §] 6105. That particular CP
number of that case would be CP-51-CR-0511121 –
2001, a prior guilty plea to possession with intent to
deliver.
N.T., 7/8/11, at 12-13.
Reeve was charged with several offenses including a violation of the
Uniform Firearms Act – persons not to possess a firearm (“VUFA”), 18
Pa.C.S.A. § 6105(a)(1), and possession of an instrument of crime (“PIC”),
18 Pa.C.S.A. § 907(a).2 After posting bail, Reeve was arrested for a
separate incident (deemed by the trial court, the “Drug House Case”), and
was convicted of possession with intent to deliver (“PWID”), VUFA, PIC, and
criminal conspiracy.3
2
Reeve was also charged with escape, 18 Pa.C.S.A. § 5121(a), firearms not
to be carried without a license, 18 Pa.C.S.A. § 6106(a)(1), carrying firearms
on public streets or public property in Philadelphia, 18 Pa.C.S.A. § 6108, and
resisting arrest, 18 Pa.C.S.A. § 5104. The Commonwealth eventually nolle
prossed these additional charges. See N.T., 7/8/11, at 6.
3
While the specifics of the incident and the charges are not in the record,
the trial court provided the following description of the event and
subsequent trial:
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On July 8, 2011, Reeve appeared before the trial court on the charges
in the instant case and entered an open guilty plea to the VUFA and PIC
charges. Prior to sentencing, this case and the Drug House Case were
consolidated pursuant to Rule 701 of the Pennsylvania Rules of Criminal
Procedure, which “enable[s] the court to sentence the defendant on all
outstanding charges within the jurisdiction of the sentencing court at one
time.” Pa.R.Crim.P. 701, cmt.
On August 22, 2011, the trial court held a sentencing hearing on both
cases. The trial court sentenced Reeve to ten to twenty years of
incarceration on the PWID charge and related weapons offenses stemming
from the Drug House Case. With regard to the case presently before this
Court, the trial court sentenced Reeve to five to ten years on the VUFA
charge, to be served concurrently with the Drug House Case sentence. The
trial court, however, also imposed a consecutive two and one half to five
That case is docketed at CP-51-CR-0011166-2010
and was tried before a jury from February 1, 2011
through March 1, 2011. In that case, [Reeve] and
co-defendants were observed outside with a gun.
After seeing the police, [Reeve] and his co-
defendants fled into a nearby house, locked the
door, and turned off all of the lights. The police
pursued and arrested [Reeve] and co-defendants.
Following execution of a search warrant, police found
[Reeve’s] gun, a large amount of narcotics, drug
paraphernalia, seven firearms with ammunition, over
$2000, and mail in [Reeve’s] name.
Trial Court Opinion, 8/15/14, at 2 n.1.
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years sentence on the non-merging PIC offense because of Reeve’s
participation in the Drug House Case, which occurred while he was on bail
for the instant matter.
On June 28, 2012, Reeve filed a timely pro se PCRA petition alleging
that his trial counsel provided ineffective assistance by recommending that
he reject a negotiated plea bargain from the Commonwealth that would have
resulted in five to ten years of incarceration. Appointed PCRA counsel filed
an amended petition on October 16, 2013 but failed to provide any
supporting evidence. On February 12, 2014, the Commonwealth filed a
motion to dismiss the petition.
On March 24, 2014, the trial court sent Reeve a notice of intent to
dismiss the petition pursuant to Rule 907 of the Rules of Criminal Procedure.
The trial court subsequently dismissed Reeve’s petition without an
evidentiary hearing on April 24, 2014.
On May 6, 2014, Reeve filed a timely notice of appeal to this Court.
On appeal, Reeve raises one issue for our review:
1. Did the [PCRA] court err in denying [Reeve] an
evidentiary hearing when [he] alleged the ineffective
assistance of trial defense counsel?
Reeve’s Brief at 2.
Our standard of review of an order denying PCRA relief is whether the
record supports the PCRA court's findings of fact, and whether the PCRA
court's determination is free of legal error. Commonwealth v. Phillips,
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31 A.3d 317, 319 (Pa. Super. 2011) (citing Commonwealth v. Berry,
877 A.2d 479, 482 (Pa. Super. 2005), appeal denied, 42 A.3d 1059 (Pa.
2012)). A PCRA petitioner must establish the claim by a preponderance of
the evidence. Commonwealth v. Gibson, 925 A.2d 167, 169 (Pa. 2007).
In his brief, Reeve first argues that trial counsel provided ineffective
assistance by advising him to reject an offer by the Commonwealth to plead
guilty in return for a sentence of five to ten years of incarceration. Reeve’s
Brief at 6. Reeve asserts that counsel’s advice to turn down the
Commonwealth’s offer and instead enter an open guilty plea, resulted in a
more severe sentence of seven and one half to fifteen years in prison. Id.Reeve contends that he was prejudiced by counsel’s ineffectiveness because
it resulted in a more severe sentence. Id. at 6-7.
“Our longstanding test for ineffective assistance of counsel derives
from the standard set by the United States Supreme Court in Strickland v.
Washington, 466 U.S. 668 (1984).” Commonwealth v. Clark, 961 A.2d
80, 85 (Pa. 2008). The test for ineffective assistance of counsel requires the
petitioner to meet a three-prong test: (1) underlying the petitioner’s
allegation of ineffectiveness, there is a claim of arguable merit; (2)
petitioner’s counsel had no reasonable strategic basis for proceeding as he
did; and (3) the petitioner was prejudiced by counsel’s ineffectiveness. Id.Failure to meet any one of the three prongs is fatal to petitioner’s claim of
ineffectiveness. Id.-5-
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The trial court in this instance determined that Reeve failed to satisfy
all three prongs to establish ineffective assistance of counsel:
Here, [Reeve] cannot prove he was prejudiced by
the advice of his trial lawyer, as this [c]ourt affirms
the Section 701 consolidation achieved mitigation
where his 12 ½ to 25 year aggregate sentence was
well below available statutory maximums, and this
Court would not have accepted a completely
concurrent sentence on both cases, even if the
Commonwealth had agreed and for the reasons
explained above.
Trial Court Opinion, 8/15/14, at 4. After reviewing the record, we agree.
In Commonwealth v. Chazin, 873 A.2d 732 (Pa. Super. 2005), a
PCRA petitioner alleged that his trial counsel rendered ineffective assistance
by failing “to advise him adequately on an earlier plea offer that the
Commonwealth tendered[.]” Id. at 733. A panel of this Court determined
that the petitioner could not establish prejudice because he could not
demonstrate that the trial court would have accepted the plea bargain. Id.
at 737-38. In reaching this determination, we stated:
“The Pennsylvania Rules of Criminal Procedure grant
the trial court broad discretion in the acceptance and
rejection of plea agreements.” There is no absolute
right to have a guilty plea accepted. Accordingly,
our Courts have reaffirmed that “[w]hile the
Commonwealth and a criminal defendant are free to
enter into an agreement that the parties deem
fitting, the terms of a plea agreement are not
binding upon the court. Rather the court may reject
those terms if the court believes the terms do not
serve justice.” As these holdings make apparent,
the Commonwealth’s offer of plea, even if accepted
by the defendant unequivocally, does not dispose of
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a criminal prosecution; indeed, the plea bargain is of
no moment until accepted by the trial court.
Consequently, in the context of Chazin’s IAC claim,
prejudice, i.e., the “reasonable probability that, but
for the act or omission challenged, the outcome of
the proceeding would have been different,” cannot
be established.
Id. at 737 (internal citations omitted). The Chazin court concluded that
“[w]ithout evidence that the result of the plea bargain process would have
been different had he been able to accept the Commonwealth’s original
offer, [the petitioner] necessarily fails to satisfy the prejudice prong requisite
to a finding of [ineffective assistance of counsel].” Id. at 737-38.
In this case, similar to the petitioner in Chazin, Reeve failed to
establish that the trial court would have accepted the plea agreement of five
to ten years of incarceration. To the contrary, our review of the record
reveals that the trial court would not have accepted the plea agreement, as
the trial court specifically stated that
[Reeve’s] implied assumption that this [c]ourt would
have agreed to a concurrent sentence totally wiping
out punishment for the VUFA-PIC is optimistic and
misreads the gravity of his situation at sentencing.
As it happens, trial counsel’s advice to him was not
off the mark. By entering a Section 701
consolidation, [Reeve] achieved significant mitigation
considering what might have been[.]
Trial Court Opinion, 8/15/14, at 4.
We therefore conclude that Reeve failed to establish that the outcome
of the proceeding would have been different if he would have accepted the
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Commonwealth’s plea agreement. Accordingly, Reeve has not satisfied the
prejudice prong of the Strickland test, which is fatal to his claim of
ineffectiveness. See Clark, 961 A.2d at 85. Reeve’s ineffective assistance
of counsel claim is without merit.
We note that Reeve also argues that the trial court erred by denying
him an evidentiary hearing. It is well settled, however, that
[t]he right to an evidentiary hearing on a post-
conviction petition is not absolute. It is within the
PCRA court’s discretion to decline to hold a hearing if
the petitioner’s claim is patently frivolous and has no
support either in the record or other evidence. It is
the responsibility of the reviewing court on appeal to
examine each issue raised in the PCRA petition in
light of the record certified before it in order to
determine if the PCRA court erred in its
determination that there was no genuine issues of
material fact in controversy and in denying relief
without conducting an evidentiary hearing.
Commonwealth v. Miller, 102 A.3d 988, 992 (Pa. Super. 2014) (quoting
Commonwealth v. Wah, 42 A.3d 335, 338 (Pa. Super. 2012)).
Given our disposition of Reeve’s claim of ineffective assistance of
counsel, we conclude that there was no genuine issue of material fact in
controversy. Accordingly, the PCRA court did not err in denying an
evidentiary hearing.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/27/2015
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