Opinion
724 MDA 2022 J-S21041-23
07-05-2023
COMMONWEALTH OF PENNSYLVANIA v. PEDRO EWING Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
Appeal from the PCRA Order Entered March 24, 2022 In the Court of Common Pleas of Luzerne County Criminal Division at No(s): CP-40-CR-0004338-2015
BEFORE: BOWES, J., NICHOLS, J., and PELLEGRINI, J. [*]
MEMORANDUM
PELLEGRINI, J.
Pedro Ewing (Ewing) appeals pro se from the March 24, 2022 order of the Court of Common Pleas of Luzerne County (PCRA court) dismissing his petition filed pursuant to the Post-Conviction Relief Act (PCRA). We affirm.
Ewing was represented by counsel in the PCRA court but elected to proceed pro se on appeal. The PCRA court held a Grazier hearing on June 16, 2022, and determined that this decision was knowing, intelligent and voluntary. See Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
Ewing's notice of appeal was docketed in the PCRA court on May 12, 2022. Because the notice was patently untimely, this Court issued a rule to show cause why the appeal should not be quashed. Ewing responded by filing date-stamped prison cash slips verifying that he had delivered the notice of appeal to prison authorities on April 19, 2022. Additionally, the certificate of service attached to the notice was dated April 18, 2022. Based on this evidence, we conclude that Ewing's appeal was timely filed pursuant to the prisoner mailbox rule. See Pa. R.A.P. 121(f).
42 Pa. C.S. §§ 9541 et seq.
I.
We glean the following facts from the certified record. In September of 2015, when Ewing was 43-years-old, he met a 14-year-old autistic girl, brought her to his room, gave her drugs and attempted unsuccessfully to engage in vaginal intercourse with her. He then performed oral intercourse on the victim and had her perform oral intercourse on him. She immediately reported the incident and underwent a physical examination at a local hospital.
Ewing was arrested and initially charged with statutory sexual assault, two counts of involuntary deviate sexual intercourse (IDSI) and corruption of minors. At his preliminary hearing, he negotiated a plea to one count of unlawful contact with a minor in exchange for withdrawal of the other charges. He later entered the guilty plea but then sought to withdraw it prior to sentencing. The trial court granted his motion and the
Commonwealth subsequently amended the information to reinstate the previously-withdrawn charges along with the count of unlawful contact with a minor.
In 2018, Ewing entered a no contest plea to all charges in the amended information on the eve of trial. Prior to sentencing, Ewing again moved to withdraw his plea. The trial court denied the motion and sentenced Ewing to an aggregate of 18 to 36 years' incarceration. He appealed and this Court affirmed the judgment of sentence. See Commonwealth v. Ewing, 225 MDA 2019, at *4-5 (Pa. Super. Nov. 26, 2019) (unpublished memorandum). He did not seek further review.
Ewing timely filed a pro se PCRA petition. He raised an ineffective assistance of counsel (IAC) claim, pleading that trial counsel had not informed him that he could raise mistake-of-age as a defense to the charges. He also contended that the evidence was insufficient to support the unlawful contact with a minor charge because the victim had contacted him first. The PCRA court appointed counsel to represent Ewing in the proceedings. PCRA counsel filed a brief supplemental petition alleging that based on IAC, Ewing entered an unknowing and involuntary plea. He argued that the plea was involuntary and unknowing because trial counsel did not inform him that the unlawful contact with a minor charge had been added via the amended information and did not discuss possible defenses with Ewing prior to his plea.
The PCRA court held an evidentiary hearing on the matter on March 1, 2022. Ewing was the sole witness presented on his own behalf. He testified that his conversations with trial counsel were mostly focused on reaching a plea deal and that they did not speak about trial strategy. He said that trial counsel visited him twice in prison during the entire pendency of the case and that they never discussed raising a mistake-of-age defense. He only learned that mistake-of-age was a possible defense after he had been sentenced. He asserted that in her interview with the Children's Advocacy Center (CAC), the victim said that she did not tell Ewing her age until after the assault. He testified that he would have proceeded to trial if he had known the defense was available to him.
We recount only the testimony that is relevant to the issues Ewing has raised on appeal.
Finally, he said that trial counsel led him to believe that the trial court would impose concurrent or more lenient sentences if he entered a plea, and that by referencing his Sexually Violent Predator (SVP) evaluation at sentencing, trial counsel painted him in a negative light. The Commonwealth objected to Ewing's testimony on these last two points because they were not claims of error he had raised in his petition. The PCRA court sustained the objection, though Ewing responded that he had asked PCRA counsel to include those issues in a supplemental petition.
After Ewing testified, the defense rested and the Commonwealth called trial counsel as its sole witness. Trial counsel testified that the discovery in the case revealed Ewing's DNA on a vaginal swab taken from the victim. When she was appointed to the case, she knew that he had previously withdrawn a guilty plea and believed the case would proceed to trial. She could not recall how many times she met with Ewing while he was incarcerated, but said at their first meeting she spent 45 minutes to an hour reviewing the evidence with him, discussing his version of events and offering her advice. She also spoke to him about multiple plea offers prior to various court dates.
Trial counsel testified that she spoke to Ewing about a mistake-of-age defense at their first meeting because "that was really the only defense he had available to him." Id. at 23. She said, "[I]t's just embedded in my mind. He said to me, [s]he looks really young. I just never had a client be that honest with me before. So, he flat out told me mistake of age defense isn't going anywhere simply because she looked young." Id. Based on that conversation, she did not believe the defense would be successful. Ewing also told her that he was on the other side of town at the time the assault occurred, but she did not believe that defense was viable in light of the DNA evidence.
Trial counsel said that she negotiated an 18-to-36-month sentence for a plea to one count of statutory sexual assault and "begged" Ewing to accept it, but he declined. Id. at 24. She testified that she never stopped trying to negotiate for a plea deal because she felt it was the best outcome. On the day he entered the no contest plea, the parties were prepared to begin voir dire. At that point, the Commonwealth was unwilling to offer a plea to reduced charges and Ewing ultimately pled no contest to all the offenses. When asked whether Ewing had any questions about the plea during the colloquy, trial counsel said, "[n]o. He wasn't confused. He was just unhappy that he was pleading to it." Id. at 29.
When asked about her trial strategy on cross-examination, trial counsel said, "it was to see how great things went. There really wasn't one. The case wasn't good for us, which is why I told him to plead." Id. at 32-33. She explained that the victim was prepared to testify and had demonstrated a very strong memory for detail in her CAC interview and based on the police reports. She explained, "I've had dozens of cases like this, and I have yet to have a witness describe exactly what the location looked like, exactly what the Defendant looked like, exactly what happened to her as well as this victim did. She had a very good memory." Id. at 31. She said she would have attempted to raise a mistake-of-age defense, but that "[t]his girl [came] in looking like she's 10 years old." Id. at 33.
Trial counsel testified that when Ewing entered his no contest plea, she believed that he would benefit in sentencing from accepting responsibility and that the trial court may impose concurrent sentences. However, he sought to withdraw the no contest plea against her advice and she felt that it negatively affected his sentence.
Finally, Ewing testified again on rebuttal. He said that his first meeting with trial counsel lasted approximately 20 minutes and they did not discuss a mistake-of-age defense. They only discussed the possible defense that he was not present at the location of the crime.
Following the hearing, the PCRA court issued an order and opinion denying the petition as meritless. The PCRA court found that trial counsel testified credibly regarding her discussions with Ewing of his possible defenses and the details of the no contest plea. Ewing timely appealed and was granted leave to proceed pro se after asserting that he wished to challenge PCRA counsel's stewardship pursuant to Commonwealth v. Bradley, 261 A.3d 381 (Pa. 2021). After granting him leave to proceed pro se, the PCRA court did not order Ewing to file a concise statement pursuant to Pa. R.A.P. 1925(b), but filed an opinion addressing the claims raised in the petition pursuant to Pa. R.A.P. 1925(a).
In Bradley, our Supreme Court held that a PCRA petitioner may raise ineffectiveness of PCRA counsel "at the first opportunity to do so, even when on appeal." Commonwealth v. Bradley, 261 A.3d 381, 401 (Pa. 2021).
After his appeal was pending in this Court, Ewing sought to amend the certified record to include additional documents, such as letters to and from counsel, that were necessary to the disposition of issues he would raise on appeal. On remand from this Court, the PCRA court held a hearing to determine whether the documents should be entered into the certified record. The Commonwealth objected to the inclusion of any of the documents that had not previously been made part of the record. Because Ewing was seeking to admit the documents to present an IAC claim related to PCRA counsel under Bradley, the PCRA court granted his motion to include the documents over the Commonwealth's objection. We have reviewed those documents in our consideration of his IAC claims regarding PCRA counsel.
II.
On appeal, Ewing argues that the PCRA court erred in denying his petition as meritless and raises new claims of IAC related to PCRA counsel.He contends that trial counsel was ineffective in (1) advising him to plead guilty without informing him that mistake-of-age was a viable defense to the charges; (2) failing to challenge the sufficiency of the evidence to support the unlawful contact with a minor charge; (3) failing to object to the Commonwealth's references at sentencing to an SVP determination that had been rendered by the Sexual Offenders Assessment Board (SOAB) when the trial court had not yet held the SVP hearing; and (4) failing to challenge the incorrect calculation of the sentencing guidelines in the trial court or on appeal. To the extent that some of these claims are waived for failure to raise them in the PCRA court, Ewing layers them with claims of IAC of PCRA counsel.
"The standard of review of an order dismissing a PCRA petition is whether that determination is supported by the evidence of record and is free of legal error." Commonwealth v. Weimer, 167 A.3d 78, 81 (Pa. Super. 2017). "The PCRA court's findings will not be disturbed unless there is no support for the findings in the certified record." Id. (citation omitted). "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." Commonwealth v. Roney, 79 A.3d 595, 603 (Pa. 2013).
"To prove counsel ineffective, the petitioner must show that: (1) his underlying claim is of arguable merit; (2) counsel had no reasonable basis for his action or inaction; and (3) the petitioner suffered actual prejudice as a result." Commonwealth v. Sarvey, 199 A.3d 436, 452 (Pa. Super. 2018). "Prejudice, in this context, has been repeatedly stated as requiring proof that but for counsel's action or inaction, there was a reasonable probability that the proceeding would have had a different outcome." Commonwealth v. Diaz, 226 A.3d 995, 1007 (Pa. 2020). A petitioner must meaningfully discuss each of the three prongs of the ineffectiveness claim to prove he is entitled to relief. Commonwealth v. Reyes-Rodriguez, 111 A.3d 775, 780 (Pa. Super. 2015). Finally, counsel cannot be ineffective for failing to pursue a meritless claim. Commonwealth v. Rykard, 55 A.3d 1177, 1190 (Pa. Super. 2012).
A.
We begin with Ewing's argument that trial counsel was ineffective for failing to inform him of the mistake-of-age defense. He contends that trial counsel should not have relied on his "layman opinion" about the victim's appearance. Ewing's Brief at 16. He asserts that the record confirms that he was highly motivated to proceed to trial on the charges, but trial counsel was wholly unprepared to do so, prepared no trial strategy and, instead, urged him to enter a plea without considering the mistake-of-age defense. This issue is meritless. Trial counsel testified unequivocally that she informed Ewing of the mistake-of-age defense at their first meeting, as "that was really the only defense he had available to him." N.T., 3/1/122, at 23. She concluded that the defense was not available based on his assertion that the victim looked "really young." Id. Moreover, on the day the case was scheduled to go to trial, the victim was prepared to testify and trial counsel asserted that "[t]his girl [came] in looking like she's 10 years old." Id. at 33. As a result, the mistake-of-age defense would not have been viable. While Ewing disputes trial counsel's version of events, we are bound by the PCRA court's credibility determinations. Roney, supra. The record supports the trial court's determination that Ewing was well aware of the mistake-of-age defense prior to entering his no contest plea and knowingly and voluntarily elected to enter the plea rather than proceed to trial. No relief is due.
We observe that Ewing's argument that trial counsel should not have relied on his opinion directly contradicts his assertion that she never discussed the defense with him at all.
B.
Next, Ewing complains that trial counsel was ineffective for failing to seek an arrest of judgment on the charge of unlawful contact with a minor and that PCRA counsel was ineffective for failing to raise this claim. This claim is meritless. Ewing entered a no contest plea to the unlawful contact with a minor charge. "It is well established that any issue relating to sufficiency of the evidence is waived by entry of a guilty plea and is not subject to attack in a post conviction proceeding." Commonwealth v. Rounsley, 717 A.2d 537, 539 (Pa. Super. 1998). A no contest plea "is treated in the same manner as a guilty plea in terms of its effect upon a particular case." Commonwealth v. Williams, 660 A.2d 614, 619 n.1 (Pa. Super. 1995). After Ewing entered his no contest plea, there was no legal basis for trial counsel to challenge the sufficiency of the evidence to support the unlawful contact with a minor charge. As neither trial counsel nor PCRA counsel could be ineffective for failing to raise this meritless claim, no relief is due. Rykard, supra.
C.
Next, Ewing argues that trial counsel was ineffective when she failed to object to the Commonwealth's references to his SVP evaluation at sentencing. As this claim was not presented in his petition, he further asserts that PCRA counsel was ineffective for failing to raise it.
Based on his no contest plea to multiple sexual offenses, the trial court ordered that Ewing be assessed by the SOAB prior to sentencing. The record reveals that the SOAB recommended that Ewing be designated as an SVP, and the Commonwealth was prepared at sentencing to present testimony from an SOAB evaluator in support of the designation. Trial counsel asked for a continuance of the SVP hearing because she had only received the petition the day before and the trial court granted the request. Thereafter, trial counsel filed a motion to bar the SVP hearing based on this Court's decision in Commonwealth v. Butler, 173 A.3d 1212 (Pa. Super. 2017), rev'd, 226 A.3d 972 (Pa. 2020), which had held that the SVP hearing process was unconstitutional. The hearing was continued but never rescheduled, notwithstanding our Supreme Court's later reversal of our holding in Butler.
We conclude this claim is meritless. The only mention of the SVP evaluation at sentencing was the Commonwealth's assertion that it was prepared to present testimony from the SOAB evaluator regarding her conclusion that Ewing was an SVP. Though he contends that the mere mention of the SVP evaluation was error, Ewing does not identify anything in the record that supports his contention that he was prejudiced by the short discussion of the SVP evaluation at sentencing. The trial court did not review the SOAB report prior to the hearing. N.T., 1/4/19, at 6-7.
Moreover, it did not reference the evaluation in its findings of fact prior to imposing its sentence. Id. at 16-17. Finally, the sentence was within the standard range of the sentencing guidelines, and the trial court reviewed a presentence investigation report, received victim impact testimony and heard Ewing's allocution before crafting its sentence. See Commonwealth v. Hill, 210 A.3d 1104, 1117 (Pa. Super. 2019) (noting that a standard-range sentence imposed after consideration of a PSI, without more, cannot be considered unreasonable). The record does not support Ewing's assertion that he was prejudiced by the brief mention of the SOAB evaluation at sentencing. As this claim has no merit, trial counsel was not ineffective for failing to object at sentencing or raise the issue on direct appeal, and PCRA counsel was not ineffective for failing to plead it in the supplemental petition. Rykard, supra.
D.
Finally, Ewing argues that trial counsel was ineffective for failing to argue that the sentencing guideline range for unlawful contact with a minor was incorrect and for failing to pursue that claim on appeal. He contends that PCRA counsel was also ineffective for failing to raise this claim in his supplemental petition. As the record confirms that the guideline range was correctly calculated, this claim is meritless.
The grading of an unlawful contact with a minor charge is based on the grading of the most serious underlying sexual offense for which the defendant contacted the minor. 18 Pa.C.S. § 6318(b). Similarly, the offense gravity score (OGS) for the offense is the same as the underlying sexual offense, or OGS 6, whichever is greater, when the offense is graded as a third-degree felony or greater. 204 Pa. Code § 303.15. Though they are both graded as first-degree felonies, the OGS for statutory sexual assault is 9 and the OGS for IDSI is 12. Id. Because IDSI was the most serious offense underlying the unlawful contact with a minor charge, the trial court correctly applied the OGS of 12, resulting in a standard guideline range of 54 to 72 months based on Ewing's prior record score of 1. 204 Pa. Code § 303.16(a) (Basic Sentencing Matrix). Accordingly, any challenge to the sentencing guidelines had no merit, and trial and PCRA counsel were not ineffective for failing to raise this claim. Rykard, supra.
Order affirmed.
Judgment Entered.
[*] Retired Senior Judge assigned to the Superior Court.