Com. v. Dean, N.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
NIZIERE JAQUI DEAN :
:
Appellant : No. 606 MDA 2020
Appeal from the PCRA Order Entered March 12, 2020
In the Court of Common Pleas of Lancaster County Criminal Division at
No(s): CP-36-CR-0006551-2017
BEFORE: BENDER, P.J.E., NICHOLS, J., and McCAFFERY, J.
MEMORANDUM BY BENDER, P.J.E.: FILED OCTOBER 23, 2020
Appellant, Niziere Jaqui Dean, appeals from the order denying his
timely-filed petition under the Post Conviction Relief Act (PCRA), 42 Pa.C.S.
§§ 9541-9546. Appellant alleges that his trial counsel acted ineffectively by
not objecting to Appellant’s entering what he claims was an involuntary guilty
plea. After careful review, we affirm.
The PCRA court summarized the facts and procedural history of
Appellant’s case, as follows:
On September 7, 2015, at 2:46 a.m., police officers were
dispatched to South Marshall Street in Lancaster City for a report
of shots fired, at which time they located Edward Cameron
suffering from multiple gunshot wounds. See Affidavit of Probable
Cause. Cameron was later pronounced deceased. Id. Through
investigation[,] it was determined that Rahdir Maxton, Kyaire
Thompson-Brown (“Thompson-Brown”), and Appellant opened
fire on Cameron at close range, resulting in the victim’s death.
Id. On October 10, 2017, charges of criminal homicide and
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conspiracy to commit homicide were filed against Appellant.1 See
Police Criminal Complaint.
1 18 Pa.C.S.[] § 2501 and 18 Pa.C.S.[] §903 respectively.
On February 22, 2019, Appellant and co-defendant
Thompson-Brown appeared before the court to plead guilty
pursuant to negotiated agreements. [N.T.] Guilty Plea[, 2/22/19,]
at 2-3…. In exchange for the Commonwealth[’s] not seeking first-
degree murder convictions and life imprisonment, Appellant and
Thompson-Brown each pled guilty to third-degree murder and
conspiracy to commit third-degree murder, at which time they
received concurrent sentences of 15-30 years[’] incarceration on
each count. Id. The sentences imposed were within the standard
range of the sentencing guidelines, and for Appellant, the
sentence was made concurrent to the state prison sentence he
was serving on unrelated charges. Id. at 21-23, 37-38. Appellant
did not file a post-sentence motion or a direct appeal.
On May 28, 2019, Appellant mailed a letter to the clerk of
courts stating he wished to withdraw his guilty plea, in part
because his pleading guilty was the only way Thompson-Brown
could get an offer and Appellant did not want to force Thompson-
Brown into a trial. See Letter, 5/28/19. Because the court no
longer had jurisdiction, the filing was treated as a pro se PCRA
[petition].
On June 6, 2019, the court appointed Vincent J. Quinn,
Esquire, as PCRA counsel. On September 16, 2019, PCRA counsel
filed an amended PCRA [petition] alleging that Appellant’s guilty
plea was induced by trial counsel’s ineffective assistance for: (1)
inaccurately advising Appellant he would receive credit for all time
served from September 20, 2015[,] if he pled guilty; (2)
inaccurately informing Appellant the minimum sentence he could
receive was 15 years[’] incarceration without telling him the
guidelines called for a sentence of 96 months to 20 years; and (3)
advising Appellant his guilty plea was the only way Thompson-
Brown could receive a negotiated guilty plea and Appellant felt
coerced into pleading guilty because of the advice of counsel. See
Amended [Petition] for [PCRA] Relief.
An evidentiary hearing was held on November 25, 2019.
[N.T.] PCRA Hearing[, 11/25/19]…. On March 12, 2020, the PCRA
court entered a [Pa.R.Crim.P.] 908 Order and Opinion denying the
amended PCRA [petition] after concluding the [petition] was
frivolous and wholly lacking in merit.
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On March 30, 2020, Appellant filed a Notice of Appeal to the
Superior Court. On April 7, 2020, Appellant filed a [Pa.R.A.P.
1925(b) concise] [s]tatement of [e]rrors [c]omplained of on
[a]ppeal, claiming that trial counsel was ineffective for failing to
object to the Commonwealth’s conditioning of the co-defendant’s
plea agreement upon Appellant’s acceptance of the same plea
agreement. … Appellant did not pursue his earlier claims that trial
counsel was ineffective for inaccurately advising him on time
credit, the minimum sentence, and the sentencing guidelines.
PCRA Court Opinion (PCO), 5/11/20, at 1-3 (footnotes, parenthesis, and some
citations to the record omitted). On May 11, 2020, the PCRA court filed its
Rule 1925(a) opinion.
Herein, Appellant states one issue for our review:
Whether the lower court erred in denying [Appellant’s] amended
PCRA [petition] when counsel was ineffective by failing to object
to the Commonwealth[’s] conditioning a co-defendant’s plea
agreement upon [Appellant’s] acceptance of the same plea
agreement[,] when such packaged plea agreement was coercive
and resulted in [Appellant’s] entering an involuntary plea?
Appellant’s Brief at 4 (unnecessary capitalization omitted).
To begin, we recognize that “[t]his Court’s standard of review from the
grant or denial of post-conviction relief is limited to examining whether the
lower court’s determination is supported by the evidence of record and
whether it is free of legal error.” Commonwealth v. Morales, 701 A.2d 516,
520 (Pa. 1997) (citing Commonwealth v. Travaglia, 661 A.2d 352, 356 n.4
(Pa. 1995)). Where, as here, a petitioner claims that he received ineffective
assistance of counsel, our Supreme Court has stated that:
[A] PCRA petitioner will be granted relief only when he proves, by
a preponderance of the evidence, that his conviction or sentence
resulted from the “[i]neffective assistance of counsel which, in the
circumstances of the particular case, so undermined the truth-
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determining process that no reliable adjudication of guilt or
innocence could have taken place.” Generally, counsel’s
performance is presumed to be constitutionally adequate, and
counsel will only be deemed ineffective upon a sufficient showing
by the petitioner. To obtain relief, a petitioner must demonstrate
that counsel’s performance was deficient and that the deficiency
prejudiced the petitioner. A petitioner establishes prejudice when
he demonstrates “that there is a reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceeding
would have been different.” … [A] properly pled claim of
ineffectiveness posits that: (1) the underlying legal issue has
arguable merit; (2) counsel’s actions lacked an objective
reasonable basis; and (3) actual prejudice befell the petitioner
from counsel’s act or omission.
Commonwealth v. Johnson, 966 A.2d 523, 532-33 (Pa. 2009) (citations
omitted).
Additionally, this Court has explained:
A criminal defendant has the right to effective counsel during a
plea process as well as during a trial. Hill v. Lockhart, 474 U.S.
52 … (1985). 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. Commonwealth v. Allen, … 732 A.2d 582([Pa.] 1999). 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.’” Hill, 474 U.S. at 56, … (quoting
McMann v. Richardson, 397 U.S. 759, 771 … (1970)); [s]ee
also Tollett v. Henderson, 411 U.S. 258, 267 … (1973) (holding
that a defendant who pleads guilty upon the advice of counsel
“may only attack the voluntary and intelligent character of the
guilty plea by showing that the advice he received from counsel
was not within the standards set forth in McMann[]”).
Commonwealth v. Hickman, 799 A.2d 136, 141 (Pa. Super. 2002).
Presently, Appellant contends that his trial counsel, Christopher Sarno,
Esq., acted ineffectively by not objecting to the Commonwealth’s offering
Appellant a ‘package plea agreement,’ by which his co-defendant, Thompson-
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Brown, would only receive a plea agreement of 15 to 30 years’ incarceration
if Appellant also agreed to accept this same deal. See Appellant’s Brief at 13.
Appellant avers that his guilty plea was involuntary because he “was placed
in the unenviable position of realizing that [Thompson-Brown’s] fate was tied
into his acceptance of the plea agreement.” Id. at 15. Indeed, he claims that
Thompson-Brown’s attorney told him “that if he would not take the deal of 15
to 30, he was being selfish.” Id. at 13; see also N.T. PCRA Hearing at 25
(Attorney Sarno’s acknowledging that Thompson-Brown’s attorney said
“[s]omething along [the] lines” of a comment that Appellant was being selfish
by wanting to proceed to trial).
Based on these facts, Appellant insists that his decision to plead guilty
was involuntary, and premised only on his concern for Thompson-Brown. He
concedes that, during his guilty plea colloquy, he “told the [c]ourt that he did
not feel coerced at the time of the plea.” Appellant’s Brief at 16. However,
he insists that he “credibly explained” his colloquy responses at the PCRA
hearing, id., where he testified:
[Appellant]: I was just trying to get through the hearing. I wanted
to get it over with. I didn’t really want to take the deal to begin
with. I wanted to go to trial. I expressed that to my attorney on
plenty of occasions.
N.T. PCRA Hearing at 42.
Appellant also argues that his colloquy answers are not indicative of the
voluntariness of his plea because the court did not ask any questions about
“the package nature of []his plea agreement.” Appellant’s Brief at 17. He
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points out that “[t]he [f]ederal [c]ourts in the Third Circuit require that the
colloquies made with packaged plea participants be conducted with special
care.” Id. at 19 (citing U.S. v. Hall, 515 F.3d 186, 194 (3d Cir. 2008)).
According to Appellant, “[t]he [c]ourts in Pennsylvania should follow the Third
Circuit’s reasoning” and, because the trial court in his case did not, “the
colloquy was defective.” Id.Initially, Appellant has waived his argument that his plea was
involuntary because the trial court did not specifically colloquy him in
accordance with the federal standard in Hall. Appellant could have attacked
the validity of his guilty plea on this basis in an appeal from his judgment of
sentence, but he failed to do so. See 42 Pa.C.S. § 9544(b) (“For purposes of
this subchapter, an issue is waived if the petitioner could have raised it but
failed to do so before trial, at trial, during unitary review, on appeal or in a
prior state post[-]conviction proceeding.”). Appellant does not frame this
claim as a challenge to Attorney Sarno’s effectiveness.
Even if he had, this Court recently rejected, in an unpublished decision
that we find persuasive, a similar claim that counsel should have objected to
an allegedly inadequate plea colloquy involving a “package deal” plea. See
Commonwealth v. Sullivan, 985 WDA 2018, unpublished memorandum at
*3 (Pa. Super. filed June 11, 2019); see also Pa.R.A.P. 126(b) (stating that
unpublished, non-precedential decisions of the Superior Court filed after May
1, 2019, may be cited for their persuasive value). Citing Hall, the Sullivan
panel acknowledged that “federal courts in the Third Circuit ‘require that (1)
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package plea deals be disclosed to the court and (2) colloquies with package
plea participants be conducted with special care.’” Sullivan, 985 WDA 2018,
unpublished memorandum at *3. However, we stressed in Sullivan that
“there is no analogous rule in Pennsylvania.” Id. We also observed that
Sullivan had been subjected to an extensive colloquy at the time of his plea,
which, along with his lengthy consultations with his counsel, demonstrated
that he “knowingly, voluntarily, and willingly” chose to waive his right to a
trial. Id. Moreover, we stressed that the evidence against Sullivan was
“damning” and the record did not support his insistence that “saving” his co-
conspirator was his “primary consideration when he accepted [the] plea offer.”
Id. at *4.
As in Sullivan, here, Appellant was put through an extensive colloquy
to discern whether his decision not to plead guilty was voluntary, knowing,
and intelligent. The PCRA court summarized the information provided by
Appellant during the colloquy, as follows:
In the present case, Appellant stated during the guilty plea
hearing that he graduated from high school, he could read, write,
and understand the English language, he has never been
diagnosed with mental illness, he was not taking any prescribed
medications, and he had a full understanding of the proceedings.
N.T. [Guilty Plea] at 6-7. After the prosecutor recited the terms
of the plea agreement, Appellant confirmed it was his intent to
plead guilty to third-degree murder and conspiracy to commit
third-degree murder. Id. at 2-3, 26. The following occurred:
THE COURT: You understand that if we proceed to trial a
week from Monday, the Commonwealth would be pursuing
a first-degree murder conviction?
[Appellant]: Yes, sir.
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THE COURT: And do you understand if the jury came back
[with a verdict of] first[-]degree [murder], you would be
sentenced to life imprisonment without parole?
[Appellant]: Yes, sir.
THE COURT: Is that why you are accepting this deal today,
to avoid that possibility?
[Appellant]: Yes, sir.
[Id.] at 26.
The court reviewed the documents[,] which listed the terms,
conditions, and nature of the plea agreement. [Id.] at 22.
Appellant acknowledged his signature appeared on the plea
agreement form, he understood the terms of the guilty plea, he
was agreeing to the terms of the plea agreement, and no other
promises had been made to him as to the sentence he would
receive. Id. at 22-23.5 Appellant further admitted it was his
signature on a seven-page Guilty Plea Colloquy and Post[-]
Sentence Rights form, he [had] reviewed all of the rights
contained therein with trial counsel before the guilty plea, and he
understood those rights. Id. at 4-5.6
5 Trial counsel and the Commonwealth noted that while it
was not on the plea agreement form, the sentence would be
concurrent to the sentence Appellant was already serving in
state prison on an unrelated charge, and Appellant would
receive credit for time served from the date bail was set.
[Id.] at 23. Appellant stated he understood this was part
of the agreement. Id.
6 In the written colloquy form, Appellant acknowledged he
understood he did not have to plead guilty, he had the right
to a jury trial, the Commonwealth would be required to
prove his guilt beyond a reasonable doubt, he would be
presumed to be innocent, he reviewed the sentencing
guidelines and maximum sentences with his attorney, he
was giving up his right to trial by pleading guilty, he was
entering a negotiated plea agreement with the district
attorney, he understood the terms of the plea agreement, it
was his decision to plead guilty, he was not threatened or
forced to plead guilty, he was making this decision of his
own free will, he had sufficient time to review all information
with his attorney, and he understood his guilty plea would
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have the same effect as a conviction by judge or jury. See
Guilty Plea Colloquy and Post-Sentence Rights Form.
Additionally, the court conducted a thorough oral colloquy
with Appellant about all of his legal rights. [Id.] at 7-9.7 After
reviewing these rights, Appellant acknowledged he was giving up
his right to trial by pleading guilty. Id. at 10. Later, the following
exchange occurred:
THE COURT: And [Appellant], whose decision is it for you to
plead guilty?
[Appellant]: Mine, sir.
THE COURT: Have you made this decision of your own free
will?
[Appellant]: Yes, sir.
THE COURT: Has anyone forced, threatened or coerced you
to get you to plead guilty?
[Appellant]: No, sir.
[Id.] at 29.
7Trial counsel stated he reviewed all of the rights contained
on the guilty plea colloquy and post-sentence rights form
with Appellant, counsel was satisfied Appellant understood
all of his rights, and this was a knowing, intelligent,
voluntary guilty plea on the part of Appellant. [Id.] at 10.
The court reviewed the four possible verdicts the jury could
reach in this case, including not guilty or guilty of first-degree
murder, third-degree murder, or manslaughter. [Id.] at 13. The
court defined malice, distinguished between first and third-degree
murder, and explained the Commonwealth’s burden of disproving
self-defense beyond a reasonable doubt if such a defense was
raised by Appellant. Id. at 13-16. Appellant acknowledged he
discussed the possibility of self-defense, manslaughter, and a not
guilty verdict with his attorney. Id. at 15.
The court then reviewed the elements of third-degree
murder and conspiracy to commit third-degree murder, and
Appellant stated he understood the nature of the charges for
which he was pleading guilty. [Id.] at 16-19. Furthermore,
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Appellant agreed that by pleading guilty he was admitting he
committed the crimes. Id. at 19-20.
Appellant understood he could go to jail for up to 40 years
on each count and up to 80 years if the sentences were imposed
consecutive to one another. [Id.] at 20. Appellant also
acknowledged reviewing the sentencing guidelines worksheet with
his attorney, which listed a recommended minimum sentence of
between 96 months[’] and 20 years[’] incarceration for third-
degree murder. Id. at 21. Appellant understood the minimum
sentence the court was being asked to impose was within the
standard range of the sentencing guidelines. Id. at 21-22.
Of relevance to Appellant’s claim of ineffective assistance of
trial counsel, the court specifically questioned Appellant about his
legal representation, whether he reviewed all discovery in the
case, and whether he was satisfied with trial counsel:
THE COURT: Did you also review the police reports in this
case?
[Appellant]: Yes, sir.
THE COURT: And you discussed different options with your
attorney, including going to trial?
[Appellant]: Yes, sir.
THE COURT: Are you satisfied with the representation of
your attorney?
[Appellant]: Yes, sir.
[Id.] at 29-30.
The court informed Appellant that he would have very
limited appeal rights if the court accepted the guilty plea. [Id.]
at 30. One such challenge could be that Appellant’s guilty plea
was not knowing, intelligent, or voluntary. Id. at 30-31. In
response, Appellant confirmed his guilty plea was knowing,
intelligent, and voluntary. Id. at 31.8
8 Trial counsel confirmed that he met with Appellant many
times to discuss the case, Appellant was a very intelligent
person, and Appellant’s decision to plead guilty was knowing
and voluntary.
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The prosecutor recited the facts of the case, stating that
Appellant and his co-defendants all displayed firearms and utilized
those firearms to shoot and kill the victim. [Id.] at 31-32. The
victim sustained at least 13 gunshot wounds. Id. at 32. When
asked whether he committed these crimes, Appellant responded
by stating, “[y]es, sir.” Id. Appellant then stated he did not have
any questions, he did not have anything else to say, and he
accepted the sentence. Id. at 33, 38-39. The court accepted the
guilty plea and imposed a sentence pursuant to the plea
agreement after finding Appellant made a knowing, intelligent,
and voluntary decision to waive his right to a jury trial and plead
guilty. Id. at 35, 37.
PCO at 8-11 (parenthesis omitted).
Notably, the PCRA court did not find credible Appellant’s testimony at
the PCRA hearing in which he disclaimed the truth of his colloquy statements.
The court explained:
At the PCRA hearing, Appellant testified that he did not want
to plead guilty but felt pressured into doing so for the benefit of
his co-defendant. N.T. [PCRA Hearing] at 30-31. However,
Appellant acknowledged his testimony contradicted what he said
at the time of the guilty plea, and the court did not find his
testimony credible. Id. at 38-42. Appellant also stated he lied to
the court during his guilty plea because he was just trying to get
through the hearing. Id. at 42-44. However, Appellant failed to
explain why he was more concerned about his co-defendant than
in asserting his right to a trial, and the court did not find this
explanation credible. Id. at 44.
Appellant is bound by the statements he made at the guilty
plea, where he admitted he was guilty, he was accepting the deal
to avoid the possibility of life imprisonment if convicted of first-
degree murder, he was satisfied with trial counsel, his plea was
voluntary, it was his decision to plead guilty, and he was not
forced, threatened or coerced into pleading guilty. Appellant may
not assert grounds for withdrawing his plea that contradict those
statements.
PCO at 11-12 (footnote and parenthesis omitted).
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In addition, the PCRA court rejected Appellant’s assertion that he pled
guilty only out of concern for Thompson-Brown’s fate. The court relied on the
fact that, at the PCRA hearing, Attorney Sarno testified
that Appellant wanted to take the plea of his own volition. N.T.
[PCRA Hearing] at 12. According to counsel, the Commonwealth
initially offered a sentence of 25-50 years[’] incarceration. Id.
Appellant wanted an offer of 10-20 years, but counsel believed
Appellant would be willing to take a deal of 12-24 years. Id.
Counsel stated that as the parties continued negotiating,
Appellant agreed to a sentence of 15-30 years[’] incarceration
because this was as low as the Commonwealth would go. Id.
PCO at 12 (parenthesis omitted). Ultimately, the PCRA court concluded that,
“[a]s in Sullivan, Appellant tendered a knowing, voluntary, and intelligent
guilty plea pursuant to the requirements of Pa.R.Crim.P 590, and there is no
support in the record for Appellant’s claim that his primary consideration when
he accepted the plea offer was saving his co-conspirator.” Id.
Finally, the PCRA court discerned that Attorney Sarno had acted
reasonably by not objecting to Appellant’s entering a guilty plea. The court
explained:
Appellant has failed to establish that the particular course of
conduct pursued by counsel lacked a reasonable basis designed to
effectuate Appellant’s interests. Trial counsel negotiated a guilty
plea where the potential for life imprisonment on a first-degree
murder conviction was removed, the minimum sentence of 15
years[’] incarceration for third-degree murder was five years
below the top end of the standard range of the sentencing
guidelines, the sentences were concurrent with each other, and
this sentence was made concurrent to the state prison sentence
Appellant was currently serving on an unrelated charge. Counsel’s
advice in this case was well within the range of competence
demanded of attorneys in criminal cases.
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Id. at 14.
Given the record before us, we conclude that the PCRA court’s credibility
determinations are amply supported by Appellant’s statements during his plea
colloquy, and the testimony admitted at the PCRA hearing. Additionally, we
discern no legal error in court’s finding that Appellant failed to prove that
Attorney Sarno rendered ineffective assistance. Accordingly, we affirm the
order denying Appellant’s PCRA petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/23/2020
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