Com. v. Johnson, J.

J-S15037-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JANE JOHNSON :
:
Appellant : No. 1901 EDA 2021
Appeal from the PCRA Order Entered September 17, 2021
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0000701-2016
BEFORE: NICHOLS, J., MURRAY, J., and SULLIVAN, J.
MEMORANDUM BY SULLIVAN, J.: FILED SEPTEMBER 28, 2022
Jane Johnson (“Johnson”) appeals from the order dismissing her petition
filed pursuant to the Post Conviction Relief Act (“PCRA”).1 We affirm.
The PCRA court summarized the facts surrounding Johnson’s conviction
as follows:
On December 7, 2015, [Johnson] walked into the 26th
Police District [in Philadelphia] and reported that her boyfriend
and co-defendant, James Cheevers [(“Cheevers”)], had murdered
her long-time friend, Kathy (“the decedent”), in [the decedent’s]
house located on the 1300 block of Earl Street.
[Johnson] said that on Friday, December 4, 2015, she
received a phone call from [the decedent’s] cell phone. When she
answered, Cheevers was on the other end stating that he was at
[the decedent’s] house and had lost his cell phone in the
decedent’s house and that he needed [Johnson] to come over to
help find it. When [Johnson] arrived at the decedent’s house, [she
saw] Cheevers . . . covered in blood[,] and the decedent was lying
on the couch, dead and covered in blood. [Johnson] and Cheevers
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1 See 42 Pa.C.S.A. §§ 9541-9546.
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looked for the cell phone but could not find it. [Johnson] then left
to retrieve Cheevers’[s] car and waited out front until Cheevers
exited the home and entered the vehicle. The two went to
Cheevers’[s] apartment[,] [and] Cheevers did not allow [Johnson]
to leave the entire weekend.
On Monday, December 7, 2015, Cheevers permitted
[Johnson] to leave the apartment to go to work[, w]hereupon
[Johnson] went directly to the 26th Police District to report the
murder.
PCRA Court Opinion, 11/16/21, at 2-3.
Later that day, Johnson gave a video recorded statement to police and
admitted that she had told Cheevers that the decedent kept money at home,
that she knew Cheevers was planning to take the cash and kill the decedent,
and that she helped Cheevers prepare the murder weapon by either helping
him wrap a wrench in tape or providing him with the tape. Johnson further
stated that Cheevers had planned the murder two weeks in advance but that
she did not know how to stop him. Johnson also admitted that she and
Cheevers took over $20,000 from the decedent’s home and split it. Police
later discovered text messages between Cheevers and Johnson planning the
murder, as well as the recovery of large amounts of cash from Cheevers’s
garage and Johnson’s home.
The Commonwealth charged Johnson with homicide, conspiracy,
robbery, burglary, and related offenses. Johnson retained counsel (“plea
counsel”), who hired a clinical and forensic psychologist, Elliot L. Atkins, Ed.D.,
P.A. (“Dr. Atkins”), to examine Johnson. Dr. Atkins met with Johnson in
February and March 2017. See Attachment to Amended PCRA Petition,
1/6/21, at 1 (“Dr. Atkins’ report”). However, there was no indication that Dr.
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Atkins completed a written report before the scheduled discovery deadline or
the May 2017 trial date.
On May 5, 2017, Johnson rejected a plea offer from the Commonwealth,
and jury selection commenced that same day. See N.T., 5/5/17, at 33. On
May 16, 2017, the parties gave opening arguments, and the Commonwealth
called witnesses and played portions of Johnson’s video recorded statement
to police. The following day, Johnson pursued a negotiated guilty plea. See
N.T., 5/17/17, at 14-19. In exchange for her plea to third-degree murder,
conspiracy, and robbery, the Commonwealth agreed to an aggregate sentence
of twenty-five to fifty years in prison and the dismissal of the first- and second-
degree murder charges. Following an extensive colloquy on the record in
accordance with Pa.R.Crim.P. 590, the trial court accepted the plea agreement
and sentenced Johnson pursuant to the parties’ negotiations. See id. at 9-
34. Johnson did not file post-sentence motions or appeal her conviction.
Johnson timely filed a pro se PCRA petition in February 2018. The PCRA
court appointed present counsel,2 who filed an amended PCRA petition
asserting plea counsel’s ineffectiveness. Specifically, Johnson alleged that
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2 Before appointing present counsel, the PCRA court had appointed two
previous counsel who filed petitions to withdraw and no-merit letters. See
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v.
Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). The PCRA court did not
dismiss Johnson’s pro se petition based on the first no-merit letter, because it
was deficient, nor did the court dismiss the petition based on the second no-
merit letter in light of Johnson’s asserted illiteracy. See PCRA Court Opinion,
11/16/21, at 1-2, n.1. Johnson’s first two PCRA attorneys did not discuss Dr.
Atkins.
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plea counsel had hired Dr. Atkins, but failed to have him prepare a report of
his forensic psychological examination before advising Johnson that “Dr.
Atkins ‘could not help her’ and that she had no choice but to plead guilty to
avoid a life sentence.” See Amended PCRA Petition, 1/26/21, at 2-3
(unnumbered). Johnson attached to her amended petition a copy of Dr.
Atkins’s report, which the doctor prepared in December 2020 at present
counsel’s request. See Dr. Atkins’s Report at 1.3 Johnson asserted that Dr.
Atkins’s report clearly provided evidence of “mitigation.” See Amended PCRA
Petition, 1/26/21, at 4. The PCRA court issued a notice of intent to dismiss
the petition. See Pa.R.Crim.P. 907. Johnson did not respond, and the court
dismissed the petition. Johnson timely appealed, and both she and the PCRA
court complied with Pa.R.A.P. 1925.
Johnson raises the following issue for review:
Did the [PCRA] court err in denying post-conviction relief without
conducting an evidentiary hearing when trial counsel was
ineffective for failing to obtain from an expert forensic
psychologist, after initially retaining same, then telling [Johnson]
that this doctor “could not help her[,]” which induced her to enter
a guilty plea, rendering this plea unknowingly entered?
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3 Dr. Atkins’s report listed the following “diagnostic impressions”: (1) post-
traumatic stress disorder; (2) persistent depressive disorder; (3) cannabis use
disorder; and (4) dependent personality disorder. Dr. Atkins’s Report at 15.
The report also discussed “battered woman syndrome” and concluded that at
the time of the murder, “her personality had been broken down to the point
where she felt she had no choice but to cooperate with . . . Cheevers’[s]
demands.” See id. at 17-19, 21. Dr. Atkins noted that his report intended
to provide a court with information that would “contextualize, not excuse”
Johnson’s actions. See id. at 20.
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Johnson’s Brief at 4.
Our standard of review of an order denying PCRA relief is well settled:
Our review of a PCRA court’s decision is limited to examining
whether the PCRA court’s findings of fact are supported by the
record, and whether its conclusions of law are free from legal
error. We view the record in the light most favorable to the
prevailing party in the PCRA court. We are bound by any
credibility determinations made by the PCRA court where they are
supported by the record. However, we review the PCRA court’s
legal conclusions de novo.
Commonwealth v. Staton, 184 A.3d 949, 954 (Pa. 2018) (internal citations
and quotations omitted).
To obtain relief under the PCRA, based on an ineffective assistance of
counsel claim relating to the entry of a guilty plea, a petitioner must establish:
(1) the underlying claim has arguable merit; (2) no reasonable
basis existed for counsel’s actions or failure to act; and (3)
petitioner suffered prejudice as a result of counsel’s error such
that there is a reasonable probability that the result of the
proceeding would have been different absent such error. Trial
counsel is presumed to be effective, and [an a]ppellant bears the
burden of pleading and proving each of the three factors by a
preponderance of the evidence.
The right to constitutionally effective assistance of counsel
extends to counsel’s role in guiding his client with regard to the
consequences of entering into a guilty plea. 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. 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. Thus, to establish prejudice, the defendant must
show that there is a reasonable probability that, but for counsel’s
errors, he would not have pleaded guilty and would have insisted
on going to trial. The reasonable probability test is not a stringent
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one; it merely refers to a probability sufficient to undermine
confidence in the outcome.
Commonwealth v. Barndt, 74 A.3d 185, 192-93 (Pa. Super. 2013) (internal
quotations and citations omitted). Further, a PCRA petitioner has “no absolute
right to an evidentiary hearing on a . . . petition, and if the PCRA court can
determine from the record that no genuine issues of material fact exist, then
a hearing is not necessary.” Commonwealth v. Jones, 942 A.2d 903, 906
(Pa. Super. 2008) (internal citation omitted); see also Pa.R.Crim.P. 907(1).
Johnson asserts that Dr. Atkins’s report would have provided her with
mitigation evidence.
Johnson contends that if had she known that plea counsel had not
obtained a report from Dr. Atkins when he advised her that the doctor “could
not help her,” she would have rejected the Commonwealth’s plea offer of
twenty-five to fifty years of imprisonment. See Johnson’s Brief at 10-11.
The PCRA court addressed Johnson’s claims and explained that she
failed to establish that plea counsel misled her when she entered her plea.
See PCRA Court Opinion, 11/16/21, at 6. The court determined that because
Johnson had clearly admitted to a conspiracy to commit first- or second-
degree murder in her statements to police, the trial risked “the very real
possibility of a life sentence”, and “it [was] highly unlikely that [Johnson]
would have rejected the plea deal and continued with her trial had she known
that [Dr. Atkins’s report] was not completed.” See id. at 6-7. Further, the
court concluded that the Dr. Atkins’s report would not have given Johnson
additional “leverage to secure a lower sentence.” See id. at 7.
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Based on our review, we conclude that the record supports the PCRA
court’s findings. Johnson focuses on the fact that Dr. Atkins did not author
his report before the entry of her plea. However, aside from her assertion
that the Dr. Atkins’s report contained “mitigation” evidence, she points to no
portion of the report containing a fact or opinion that was unknown to the
parties or the trial court when she entered the negotiated guilty plea on the
second day of trial.
Moreover, Johnson’s issue appears to focus on the possibility that she
could have negotiated a better sentence. See Johnson’s Brief at 11 (noting
that the contents of Dr. Atkins’s report provided “mitigation”); accord Reply
to Commonwealth’s Motion to Dismiss, 4/17/21, at 1 (arguing that “had [Dr.
Aikens’s report] been completed and forwarded prior to an offer being
conveyed . . . the offer would very likely have been different). However, the
law does not require that a defendant be pleased with the outcome of her
decision to plead guilty. See Commonwealth v. Brown, 48 A.3d 1275, 1277
(Pa. Super. 2012) (noting that a defendant need not be pleased with the
results of the decision to enter a guilty plea; all that is required is that the
defendant’s decision to plead guilty be knowingly, voluntarily and intelligently
made). Here, the trial court conducted a thorough colloquy when accepting
Johnson’s plea, see N.T., 5/17/17, 9-34, and we conclude that Johnson’s
amended PCRA petition, as well as her arguments before this Court, have
failed to establish that there were genuine issues of material fact that plea
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counsel’s advice was deficient or that Johnson’s decision to plead guilty to
avoid a life sentence was unknowing, unintelligent, or involuntary.
In sum, finding no basis in the record or the law to disturb the PCRA
court’s determinations, we affirm the order dismissing Johnson’s petition
without a hearing. Accordingly, no relief is due.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/28/2022
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