Com. v. Jones, W.

J-S31021-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
WALLACE JONES :
:
Appellant : No. 1721 EDA 2021
Appeal from the PCRA Order Entered August 11, 2021
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0003682-2009
BEFORE: BOWES, J., NICHOLS, J., and STEVENS, P.J.E.*
MEMORANDUM BY NICHOLS, J.: FILED OCTOBER 25, 2022
Appellant Wallace Jones appeals from the order dismissing his timely
first Post Conviction Relief Act1 (PCRA) petition. Appellant argues that his trial
counsel was ineffective for failing to conduct an adequate pre-trial
investigation and for failing to explain a plea offer to Appellant. Appellant also
argues that his appellate counsel was ineffective for failing to raise a
sentencing claim on direct appeal. We affirm.
A previous panel of this Court summarized the factual and procedural
history of this matter as follows:
During Appellant’s trial, Joseph Johnson testified that on the
evening of January 4, 2009, Appellant entered Johnson’s home
with another individual and struck Johnson’s head with a gun,
____________________________________________
* Former Justice specially assigned to the Superior Court.
1 42 Pa.C.S. §§ 9541-9546.
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stating: “I’ll leave you dead and stinking here.” Appellant then
shot Johnson in the face and fled. Johnson staggered outside in
search of assistance and collapsed near the corner of Green and
Berkley Streets. Rasheen Owens, a passerby, saw Johnson fall to
the ground between 9:30 p.m. and 10 p.m. Owens called the
police and stayed with Johnson until assistance arrived.
In his defense, Appellant presented three alibi witnesses, including
his nephew, Carl Honeyblue, and Appellant himself testified. The
thrust of Appellant’s defense was that (1) on the evening of the
shooting, he and other individuals attended a party at a location
about 1.4 miles from Johnson’s house; (2) he left the party at
10:00 p.m. to drive other partygoers home; and (3) he did not
enter Johnson’s house or shoot Johnson. Appellant admitted,
however, that he had hired Johnson to perform manual labor but
fired him one day before the shooting after they had an argument.
Appellant also admitted having prior convictions for theft and
criminal trespass.
The jury found Appellant guilty of attempted murder, aggravated
assault and related offenses. On December 10, 2010, the trial
court imposed an aggregate sentence of 20-40 years’
imprisonment. On April 20, 2011, the trial court denied
Appellant’s post-sentence motions by operation of law. Appellant
filed a timely direct appeal in this Court at No. 1163 EDA 2011.
The trial court ordered Appellant to file a concise statement of
errors complained of on appeal, but Appellant’s attorney[,
Jeremy-Evan Alva, Esquire (trial counsel),] failed to do so.
Appellant filed a brief at 1163 EDA 2011 arguing that he had
discovered photographs that confirmed he was at the
aforementioned party at the time of the break-in and shooting.
On June 12, 2012, pursuant to Pa.R.A.P. 1925(c)(3), this Court
entered a judgment order finding [trial counsel] ineffective for
failing to file a concise statement. We also observed that the case
was “complicated by a claim of newly discovered evidence in the
form of photographs to corroborate Appellant’s alibi defense.
Neither this Court nor the trial court has had occasion to review
that claim.” Commonwealth v. Jones, No. 1163 EDA 2011, at
2-3 [(Pa. Super. filed June 12, 2012) (Jones I) (unpublished
judgment order)]. Accordingly, we instructed the trial court to
appoint new counsel for Appellant and directed new counsel to
promptly review Appellant’s “newly discovered evidence”
claim of lately-recovered photographs and, in the interest of
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judicial economy, pursue that claim while the case is on
remand, in a motion for a new trial, because the trial court
is in the best position to decide if a new trial is necessary.
If the court denies Appellant a new trial, counsel shall timely
file a notice of appeal and prepare, file and serve the trial
court with a proper Rule 1925(b) statement, including any
issues to be raised on appeal.
Id. at 3.
[The trial court subsequently appointed Stephen Thomas
O’Hanlon, Esquire (appellate counsel) to represent Appellant.
Although the prior panel of this Court had remanded this matter
to the trial court to consider Appellant’s claim of newly discovered
evidence, o]n February 17, 2015, in lieu of a post-sentence motion
relating to the [same] photographs, Appellant filed a PCRA petition
raising a claim of after-discovered evidence under 42 Pa.C.S. §
9543(a)(2)(vi). On September 11, 2015 and May 10, 2016, the
[trial] court held evidentiary hearings relating to Appellant’s
petition.
During the first hearing, Appellant introduced four photographs
showing him with various other individuals between 9:09 p.m. and
9:24 p.m. on the evening of the shooting, January 4, 2009.
Honeyblue testified that he took the photographs with a digital
camera. He uploaded the photographs to his grandmother’s
computer but deleted them later. After trial, in 2011, Honeyblue
recovered the photographs using an unidentified recovery
software. He testified that his grandmother gave the computer to
another one of his uncles (an uncle other than Appellant), and that
he, Honeyblue, could have used the recovery software to obtain
the photographs prior to Appellant’s trial. When asked why he did
not mention the photographs during his testimony at trial,
Honeyblue stated: “I didn’t see the relevance.”
Appellant testified that he was aware of the photographs when he
was arrested but believed that Honeyblue had deleted them, and
he never asked his attorney to investigate whether they were
accessible. Conversely, [trial] counsel testified that Appellant told
him about the photographs prior to trial. [Trial c]ounsel then met
with Honeyblue, who told [trial] counsel that “he couldn’t get the
photographs, for some reason, off a computer, or something like
that.” Neither Appellant nor [trial] counsel testified to taking any
further steps.
* * *
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At the conclusion of the hearing on May 10, 2016, the court denied
the petition. Appellant timely appealed[.]
Commonwealth v. Jones, 1414 EDA 2016, 2018 WL 2295677 at *1-2 (Pa.
Super. 2018) (Jones II) (unpublished mem.) (some citations omitted),
appeal denied, 194 A.3d 123 (Pa. 2018) (Jones III).
On direct appeal, Appellant argued that the trial court erred in denying
his motion for a new trial based on after-discovered evidence. Jones II, 2018
WL 2295677 at *2. This Court agreed with the trial court that Appellant failed
to exercise reasonable diligence to determine if Honeyblue could recover the
photographs prior to trial. Id. at *3. Additionally, this Court stated that the
photographs were “cumulative of alibi evidence presented by multiple defense
witnesses during trial that Appellant was attending a party on the evening of
the shooting.” Id. at *4. Lastly, this Court concluded that the photographs
would not have resulted in a different verdict because “the Commonwealth
still would have been able to argue persuasively that Appellant left the party
after 9:24 p.m., traveled 1.4 miles to Johnson’s house and assaulted Johnson
close to 10:00 p.m.” Id. This Court affirmed the trial court’s order denying
Appellant’s motion for a new trial and our Supreme Court denied his petition
for allowance of appeal on September 18, 2018.
The PCRA court summarized the subsequent procedural history as
follows:
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Appellant filed the instant PCRA petition on December 19, 2018.[2]
On July 31, 2019, Peter Levin, Esquire, entered his appearance on
Appellant’s behalf and filed an amended PCRA petition on October
27, 2019. On January 30, 2020, the Commonwealth filed a motion
to dismiss. On February 26, 2020, Appellant filed a supplemental
amended PCRA petition focusing solely on the issue of the guilty
plea.[fn1]
[fn1]Appellant, in filing his supplemental amended PCRA
petition, did not abandon his other two issues, but rather
was supplementing his guilty plea issue. This court
reviewed all three of Appellant’s PCRA issues and
determined that only the guilty plea issue warranted an
evidentiary hearing.
* * *
On July 28, 2020, this court granted an evidentiary hearing
primarily to explore Appellant’s allegation regarding whether or
not the plea offer was properly explained to him. [Both Appellant
and trial counsel testified at the April 30, 2021 evidentiary
hearing.]
PCRA Ct. Op., 12/9/21, at 3 (formatting altered).
The PCRA court dismissed Appellant’s PCRA petition on August 11, 2021.
Appellant then filed a timely appeal. Both Appellant and the trial court
complied with Pa.R.A.P. 1925.
Appellant raises following issues for our review:
1. Whether the court erred in not granting relief on the PCRA
petition alleging trial counsel was ineffective for failing to
investigate and pursue the photographic evidence?
____________________________________________
2 This matter was tried before the Honorable Sandy L.V. Byrd, who also
presided over Appellant’s request for a new trial based on after-discovered
evidence. See Trial Ct. Op., 10/11/11, at 1; Trial Ct. Op., 6/27/17, at 1.
However, because of Judge Byrd’s pending retirement, this matter was
reassigned to the Honorable Tracy Brandeis-Roman on December 19, 2019.
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2. Whether the court erred in not granting relief on the PCRA
petition alleging trial counsel was ineffective for failing to
adequately explain the guilty plea offer?
3. Whether the court erred in not granting relief on the PCRA
petition alleging appellate counsel was ineffective for failing to
appeal the denial of the motion to reconsider sentence?
Appellant’s Brief at 7.
Jurisdiction
Before we address the merits of Appellant’s PCRA claims, we first
consider whether we have jurisdiction over this appeal. See Commonwealth
v. Callahan, 101 A.3d 118, 121 (Pa. Super. 2014) (reiterating that because
the timeliness of a PCRA petition implicates our jurisdiction, we may consider
the issue sua sponte). A PCRA petition, “including a second or subsequent
petition, shall be filed within one year of the date the judgment becomes
final[.]” 42 Pa.C.S. § 9545(b)(1). A judgment of sentence becomes final “at
the conclusion of direct review, including discretionary review in the Supreme
Court of the United States and the Supreme Court of Pennsylvania, or at the
expiration of time for seeking the review.” Id. at § 9545(b)(3).
“A PCRA petition may only be filed after an appellant has waived or
exhausted his direct appeal rights.” Commonwealth v Leslie, 757 A.2d 984,
985 (Pa. Super. 2000). A premature PCRA petition is a legal nullity. See
Commonwealth v. Smith, 244 A.3d 13, 17 (Pa. Super. 2020); see also
Commonwealth v. Kubis, 808 A.2d 196, 198 n.4 (Pa. Super. 2002) (stating
that a “premature petition does not constitute a first PCRA petition”).
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When an appellate court remands a case on direct appeal for the trial
court to consider a claim of after-discovered evidence, the judgment of
sentence is not final. See, e.g., Commonwealth v. Crumbley, 270 A.3d
1171, 1175 (Pa. Super. 2022), appeal denied, --- A.3d ---, 110 WAL 2022,
2022 WL 4091175 (Pa. filed Sept. 7, 2022). The judgment of sentence only
becomes final after the defendant exhausts his direct appeal rights following
the trial court’s denial of the request for a new trial. See id. at 1175 & n.4.
Here, after Appellant timely appealed from his December 10, 2010
judgment of sentence, this Court remanded the matter for the trial court to
conduct an evidentiary hearing on Appellant’s after-discovered evidence
claim. See Jones I, 1163 EDA 2011, at 3. Following remand, on February
17, 2015, Appellant filed a PCRA petition raising the same after-discovered
evidence claim included in this Court’s remand. However, because Appellant’s
judgment of sentence was not yet final, that PCRA petition was a legal nullity.
See Smith, 244 A.3d at 17.
After the trial court denied Appellant’s request for a new trial, Appellant
filed a timely notice of appeal. This Court affirmed on May 21, 2018. See
Jones II, 2018 WL 2295677, at *1. Our Supreme Court denied Appellant’s
petition for allowance of appeal on September 18, 2018. Jones III, 194 A.3d
at 123. Therefore, Appellant’s judgment of sentence became final on
December 17, 2018, the date on which the time to file a petition for a writ of
certiorari in the Supreme Court of the United States expired. See Crumbley,
270 A.3d at 1175 & n.4; 42 Pa.C.S. § 9545(b)(3); U.S. Sup. Ct. Rule 13.
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Appellant timely filed his first pro se PCRA petition on December 19,
2018. See 42 Pa.C.S. § 9545(b)(1); see also Kubis, 808 A.2d at 198 n.4
(stating that a “premature petition does not constitute a first PCRA petition”).
Because Appellant timely filed the instant PCRA petition, this Court has
jurisdiction to consider his claims and we proceed to the merits of Appellant’s
issues.
Trial Counsel’s Pre-Trial Investigation
In his first issue, Appellant argues that trial counsel was ineffective for
failing to investigate if the photographs of him at a party on the night of the
shooting could be recovered. Appellant’s Brief at 15-18. Appellant notes that
trial counsel testified during the 2015 evidentiary hearing that he met with
Honeyblue, who told trial counsel that he could not recover the photographs
from his computer. Id. at 16. Appellant claims that there was no reasonable
strategic basis for trial counsel’s failure to investigate software that could
recover deleted photographs. Id. at 16-17. Appellant contends that counsel’s
omission prejudiced him because the photographs were “evidence crucial to
Appellant’s alibi defense[.]” Id. at 17.
In reviewing the denial of a PCRA petition, our standard of review
is limited to examining whether the PCRA court’s determination is
supported by the evidence of record and whether it is free of legal
error. The PCRA court’s credibility determinations, when
supported by the record, are binding on this Court; however, we
apply a de novo standard of review to the PCRA court’s legal
conclusions.
Furthermore, to establish a claim of ineffective assistance of
counsel, a defendant must show, by a preponderance of the
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evidence, ineffective 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. The burden is on the defendant
to prove all three of the following prongs: (1) the underlying claim
is of arguable merit; (2) that counsel had no reasonable strategic
basis for his or her action or inaction; and (3) but for the errors
and omissions of counsel, there is a reasonable probability that
the outcome of the proceedings would have been different.
We have explained that a claim has arguable merit where the
factual averments, if accurate, could establish cause for relief.
Whether the facts rise to the level of arguable merit is a legal
determination.
The test for deciding whether counsel had a reasonable basis for
his action or inaction is whether no competent counsel would have
chosen that action or inaction, or, the alternative, not chosen,
offered a significantly greater potential chance of success.
Counsel’s decisions will be considered reasonable if they
effectuated his client’s interests. We do not employ a hindsight
analysis in comparing trial counsel’s actions with other efforts he
may have taken.
Prejudice is established if there is a reasonable probability that,
but for counsel’s errors, the result of the proceeding would have
been different. A reasonable probability is a probability sufficient
to undermine confidence in the outcome.
Boilerplate allegations and bald assertions of no reasonable basis
and/or ensuing prejudice cannot satisfy a petitioner’s burden to
prove that counsel was ineffective. Moreover, a failure to satisfy
any prong of the ineffectiveness test requires rejection of the
claim of ineffectiveness.
Commonwealth v. Sandusky, 203 A.3d 1033, 1043-44 (Pa. Super. 2019)
(citations omitted and formatting altered).
It is well settled that “[c]ounsel has a duty to undertake reasonable
investigations . . . .” Commonwealth v. Tedford, 960 A.2d 1, 39 (Pa. 2008)
(citation omitted and emphasis in original).
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When this Court addresses the merits of an issue on direct appeal, that
holding constitutes the law of the case with respect to that issue. See
Commonwealth v. Reed, 971 A.2d 1216, 1220 (Pa. 2009). Further, because
a ruling on the merits of the issue is the law of the case, it constrains this
Court’s review of the same issue in subsequent collateral proceedings, even if
it is nested in an ineffective assistance of counsel claim. See id. at 1220,
1227.
Here, the PCRA court explained:
This issue has been previously litigated in the Pennsylvania
Superior Court and it was determined that even if the
photographic evidence had been presented that it would not have
changed the outcome of Appellant’s trial. Appellant’s nephew,
Honeyblue, both told [trial counsel] that he could not recover the
allegedly deleted photographs and testified at a prior hearing on
September 11, 2015[,] that he did not mention the alibi
photographs during trial because he “didn’t see the relevance” of
the alibi photographs. Based on all relevant facts, it would appear
that Honeyblue was responsible for the lack of photographic
evidence at Appellant’s trial, and such evidence would not have
changed the outcome of Appellant’s trial.
PCRA Ct. Op. at 7.
Our review of the record confirms that a prior panel of this Court
previously addressed Appellant’s after-discovered evidence claim and
concluded that it was meritless. See Jones II, 2018 WL 2295677 at *4
(concluding that even if the photographs were presented at Appellant’s trial,
they would not have affected the outcome). Because this Court’s prior ruling
on the merits of Appellant’s claim constitutes the law of the case, Appellant
cannot establish that he was prejudiced by trial counsel’s failure to investigate
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the methods used to recover the photographs. See Reed, 971 A.2d at 1227
(affirming denial of PCRA claim that trial counsel was ineffective because this
Court previously held that the underlying issue was meritless on direct
appeal). Accordingly, Appellant is not entitled to relief on this claim.
Trial Counsel’s Plea Advice
Appellant next argues that trial counsel was ineffective for failing to
adequately advise him regarding the Commonwealth’s plea offer. Appellant’s
Brief at 18-22. Appellant contends that trial counsel informed him that the
Commonwealth had made a plea offer with a sentencing recommendation of
eight to twenty years’ incarceration, but trial counsel failed to advise Appellant
to accept it because he believed that Appellant wanted to go to trial. Id. at
20. Specifically, Appellant claims that trial counsel “failed to fully disclose the
particulars of the plea offer or explain the merits of the offer, as opposed to
standing trial.” Id. Appellant asserts that if counsel had explained the effect
that Appellant’s prior convictions would have on the sentencing guidelines,
Appellant would have accepted the Commonwealth’s plea offer. Id. at 21.
Appellant also argues that the PCRA court erred to the extent it considered
the delay in presenting this claim on collateral review. Id. at 18-19.
A PCRA petitioner seeking relief on the basis that ineffective assistance
of counsel caused him or her to reject a guilty plea must demonstrate that
but for the ineffective advice of counsel there is a reasonable
probability that the plea offer would have been presented to the
court (i.e., that the defendant would have accepted the plea and
the prosecution would not have withdrawn it in light of intervening
circumstances), that the court would have accepted its terms, and
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that the conviction or sentence, or both, under the offer’s terms
would have been less severe than under the judgment and
sentence that in fact were imposed.
Commonwealth v. Steckley, 128 A.3d 826, 832 (Pa. Super. 2015) (quoting
Lafler v. Cooper, 566 U.S. 156, 164 (2012)).
Here, the PCRA court explained:
At the evidentiary hearing held on April 30, 2021, Appellant
testified to the following:
Appellant: I had a meeting with [trial counsel] right before
trial. I’m not sure if I brought it up or if he just simply
informed me, because it was said so nonchalantly, just like
a passing thought. He just told me the DA offered the deal
and that was it. And [that] it was for 8 to 20 years. He
didn’t explain -- he said, Oh, but we’re going to trial, right?
And he didn’t explain anything else further than that to me.
The affirmative way that he asked me about, you know,
going to trial and, you know, the confidence that was all
displayed about going to trial, I took all of that as, you know,
advice and guidance. And then, um, it was other issues
which he had actually sat me down and talked to me about.
Like when he talked to me about the temperament of Judge
Byrd and how basically it was imperative that I take a jury
trial over a bench trial. You know, I had the time to sit and
think and talk to my family and relay this information and
to get their advice. I just wish that he had given me that
chance for this issue.
[N.T. PCRA Hr’g, 4/30/21, at 9-10].
At the same hearing, [trial counsel] testified about discussions he
had with Appellant regarding the plea offer.
[Trial Counsel]: My first meeting with [Appellant] was at
CFCF in the official visiting area. At that point, there was no
discussion of any plea offer. I was appointed counsel and it
is not a good way of meeting somebody who had a private
lawyer ahead of time and you’re court appointed to start
talking about plea offers. I informed [Appellant] who I was,
I work for nobody but him, I’m paying him out of my own
tax-paying dollars, this is who I am. You can ask around
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the prison who I am and such and we’ll go from there. I
informed him if I was his attorney, I would try to get him
the best [offer possible] and give him the best defense
possible. He informed me he wanted to hire Shaka Johnson,
I said he’s a fine lawyer, go ahead, do what you need to do.
I think [Appellant] told me at that initial meeting that he’s
not taking any offer, he has an alibi. I said, that’s fine, I
still have to convey any and all offers. Those were our
discussions.
[N.T. PCRA Hr’g, 4/30/21, at 37-38].
Although the testimony of Appellant conflicted with the testimony
of [trial counsel], this court did not determine that either Appellant
or [trial counsel] were not credible.[fn2] Although this made
determining the merit of this issue difficult, this court considered
two factors before determining this issue to be meritless. This
court first considered that this issue was not brought within one
year of when Appellant could have presented this claim.
[fn2]Appellant did not appear to be testifying untruthfully,
but rather that he appeared to be remembering events from
his trial differently than how they occurred due to the length
of Appellant’s matter.
* * *
It is clear that Appellant was aware of any potential sentencing
issues on December 10, 2010, when he was informed of his
sentence. Appellant did not raise any issues regarding this plea
offer until December 19, 2018, over eight years after being
sentenced, and instead focused solely on the alibi photograph
issue.
Additionally, this court was also unconvinced that Appellant would
have taken a plea offer regardless of how it was conveyed to him.
This is due to the procedural history of this case and to the fact
that Appellant consistently alleged that the photographic evidence
that supported his alibi defense would exonerate him. Despite
claiming that he believed [trial counsel] had not properly informed
him of the plea offer, Appellant waited eight years before filing
any claims regarding the sufficiency of [trial counsel’s]
explanation of the plea offer. As stated supra, Appellant testified
at the evidentiary hearing that he had been informed before trial
that there was a plea offer of eight to twenty years, and at the
very latest should have known by his sentencing that he felt [trial
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counsel’s] explanation of the plea offer was insufficient. If either
Appellant or [appellate counsel] believed that [trial counsel] failed
to provide a sufficient explanation of the plea offer, then this court
cannot comprehend why it was not raised by Appellant at any
earlier point.
Appellant first raised the issue of whether or not [trial counsel]
sufficiently explained the plea offer in his December 19, 2018
PCRA petition. In conjunction with the testimony from the
evidentiary hearing, Appellant’s decision to go [to] trial rather
than accept the plea offer does not appear to have been the result
of ineffective assistance of counsel on [trial counsel’s] behalf.
[The Commonwealth]: Your testimony is that at none of
your prior pleas, not one, was there ever a discussion about
prior record score or gravity score or sentencing range?
Appellant: No. I never had those types of decisions. They
were actually minor offenses. I don’t want to say they were
minor, but they weren’t offenses to this magnitude. My
thing was, What’s the deal? Give me the deal. What’s the
deal? I didn’t even worry or know about gravity scores or
points or anything like that. It was just like, okay, what’s
the deal? Give me the deal.
[N.T. PCRA Hr’g, 4/30/21, at 28].
[The Commonwealth]: [Appellant], did you understand that
all of the charges [that] you were facing in this trial, you
could have gone to prison for over 100 years, right?
Appellant: I never heard that until today, but I do know that
I was facing serious charges, which is why I said I was
confident in my alibi. I was confident in my alibi witnesses.
But, yet, at the same time, if [trial counsel] had sat down
and explained everything to me and explained the deal and
everything else outside of the deal to me, what I would be
facing in sentencing if found guilty, I would have chosen to
go ahead and take the deal. As you can see from my prior
record, you can call me the deal king. I have taken deals.
So there would be -- so that even proves more to the point
that if he had explained everything to me and this is my first
trial ever, that I would have taken the deal if he explained
all of that to me.
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[The Commonwealth]: Sir, you just said you would have
taken the deal because you’re the deal king, right?
Appellant: I said from my prior records, you can see that.
[The Commonwealth]: That’s what you just said, right?
Appellant: But they were minor offenses. They were
probation deals, right. I didn’t know about -- I didn’t know
-- I didn’t know that I would be facing a minimum of a 17-
and-a-half year sentence, you know, I mean, if I was found
guilty, you know what I mean, in this case?
[N.T. PCRA Hr’g, 4/30/21, at 30-31].
As can be seen from Appellant’s own testimony, Appellant not only
stated that he was confident in his own alibi witnesses but also
that the previous plea offers he accepted were plea offers of
probation, not plea offers of any term of incarceration. Further,
Appellant’s own testimony is contradictory. Appellant alleged that
[trial counsel] did not explain anything to Appellant. However,
Appellant had previously stated that [trial counsel] did in fact
explain other issues to him prior to trial. This discrepancy was
one that this court could not ignore as it directly affected
Appellant’s credibility.[fn4] What is clear is that Appellant had
taken plea offers on minor charges, that Appellant had alibi
witnesses and photographs that likely influenced Appellant to go
to trial rather than to plead guilty, that Appellant waited eight
years to raise the issue regarding [trial counsel’s] explanation of
the plea offer, aligning with the minimum sentence of the plea
offer, and that Appellant changed his repeated defense of actual
innocence to a defense that he would have accepted the plea offer,
which paints Appellant’s testimony as unreliable.
Again, this court does not believe that Appellant was
[fn4]
being dishonest, but rather it appears from his testimony
that Appellant may be misremembering the history of his
own case due to the length of his matter.
Therefore, Appellant’s [plea] issue is meritless.
PCRA Ct. Op. at 11-14 (some footnotes and citations omitted, and formatting
altered).
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Although we conclude that Appellant is not entitled to relief, we disagree
with the PCRA court’s finding that Appellant waited eight years to challenge
trial counsel’s ineffectiveness in connection with his guilty plea. As discussed
previously, Appellant’s judgment of sentence did not become final until
December 17, 2018, and generally a claim of ineffective assistance of trial
counsel must be deferred to collateral review under the PCRA. See
Crumbley, 270 A.3d at 1175 & n.4 (discussing when a judgment becomes
final for PCRA purposes); see also Commonwealth v. Grant, 813 A.2d 726,
738 (Pa. 2002) (holding that, as a general rule, claims of ineffective assistance
of counsel should be raised on collateral review), abrogated on other grounds,
Commonwealth v. Bradley, 261 A.3d 381, 405 (Pa. 2021) (holding that a
PCRA petitioner may raise claims of PCRA counsel’s ineffectiveness at the first
opportunity to do so, even on appeal from the denial of a PCRA petition).3
In any event, the PCRA court also concluded that Appellant could not
establish that it was trial counsel’s deficient advice that caused him to reject
the plea offer and proceed to trial. See PCRA Ct. Op. at 12-14. Specifically,
the PCRA court found that Appellant rejected the plea offer because he “was
confident in his own alibi witnesses.” Id. at 13; see also N.T. PCRA Hr’g,
4/30/21, at 30, 38. The PCRA court’s credibility determinations, when
supported by the record, are binding on this Court. See Sandusky, 203 A.3d
at 1043. Therefore, we agree with the PCRA court that Appellant has failed
____________________________________________
3 Bradley is not applicable to the instant case because Appellant has not
raised any claims of PCRA counsel’s ineffectiveness.
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to prove that, but for trial counsel’s advice, Appellant would have accepted
the plea offer. See Steckley, 128 A.3d at 832.
Appellate Counsel’s Failure to Raise Sentencing Issue
Lastly, Appellant argues that appellate counsel was ineffective for failing
to raise a challenge to the discretionary aspects of sentencing on direct appeal.
Appellant’s Brief at 22-23. Appellant contends that trial counsel preserved a
meritorious challenge to the discretionary aspects of his sentence in a post-
sentence motion. Id. Appellant claims that “there was no reasonable basis
for appellate counsel not to raise this issue.” Id. at 23. Appellant also asserts
that he “suffered actual prejudice as a result of appellate counsel’s failure to
raise this issue. As a result of appellate counsel’s failure, the issue could not
be argued on appeal.” Id.
In order to establish prejudice with respect to a claim of ineffective
assistance of appellate counsel, “the petitioner must show that there is a
reasonable probability that the outcome of the direct appeal proceeding would
have been different but for counsel’s deficient performance.”
Commonwealth v. Blakeney, 108 A.3d 739, 750 (Pa. 2014). Appellate
counsel may strategically decide to not pursue weaker claims “in favor of
pursuing claims that counsel believes offer a better chance of relief.”
Commonwealth v. Pou, 201 A.3d 735, 740-41 (Pa. Super. 2018) (citation
omitted).
In the instant case, Appellant presents only boilerplate assertions that
his claim has arguable merit, that appellate counsel lacked a reasonable basis
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for failing to raise his sentencing claim on appeal, and that he was prejudiced
as a result. Notably, Appellant fails to discuss why his underlying sentencing
claim has arguable merit. Boilerplate assertions are not sufficient to satisfy
Appellant’s burden to prove appellate counsel was ineffective. See
Sandusky, 203 A.3d at 1044. Therefore, Appellant is not entitled to relief on
this claim.
In any event, if Appellant had developed his claim of appellate counsel
ineffectiveness, we would affirm on the basis of the PCRA court’s opinion. See
PCRA Ct. Op. at 9-10 (concluding that appellate counsel was not ineffective
for focusing solely on the alibi claim on direct appeal).
For the reasons set forth herein, we conclude that there was no error of
law in the PCRA court dismissing Appellant’s PCRA petition. See Sandusky,
203 A.3d at 1043-44. Accordingly, we affirm the PCRA court’s order.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/25/2022
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