Opinion
J-S29023-15 No. 1388 WDA 2014
08-26-2015
COMMONWEALTH OF PENNSYLVANIA Appellee v. KRISTOPHER EUGENE GARNER Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order August 20, 2014
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0016150-2007
BEFORE: PANELLA, J., MUNDY, J., and STRASSBURGER, J. MEMORANDUM BY MUNDY, J.:
Retired Senior Judge assigned to the Superior Court.
Appellant, Kristopher Eugene Garner, appeals from the August 20, 2014 order dismissing his first petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. After careful review, we affirm.
The PCRA court has set forth the facts and procedural history of this case as follows.
This matter arises out of [Appellant]'s conviction after a jury trial on August 27, 2009 of [h]omicide in the [t]hird [d]egree and [c]riminal [c]onspiracy for which he was sentenced to 15 to 30 years for the murder conviction and a consecutive term of 2 ½ to 5 years for conspiracy. The homicide
occurred on September 12, 2003 and [Appellant] was arrested on October 17, 2007. [Appellant]'s conviction occurred after three prior trials which occurred on July 14, 2008, October 7, 2008 and May 12, 2009, respectively, all of which ended in mistrials. On appeal of his conviction, the Superior Court, in a memorandum opinion of October 25, 2011, remanded to the trial court for a hearing regarding the alleged recantation of a witness trial testimony, but otherwise affirmed the judgment of sentence. Commonwealth v. Garner , 37 A.2d 1244 (Pa. Super. 2011).
A hearing on the remand was held on March 5, 2012, and on March 9, 2012[,] an order was entered finding that the witness did not knowingly and voluntarily recant his testimony. [On March 13, 2013, Appellant] subsequently filed the instant [m]otion for [r]eduction of [s]entence, which was designated a PCRA [p]etition. In his [a]mended PCRA [p]etition, [Appellant] alleged that he was entitled to additional credit for time served and that trial counsel was ineffective in failing to adequately consult with him concerning accepting or rejecting plea offers made prior to his conviction.
[Appellant] claims that counsel was ineffective in failing to consult with him because in early April or May of 2009 counsel met with [Appellant] and informed him that the Commonwealth had offered to agree to a sentence of 20 to 40 years in exchange for a plea of guilty to [t]hird-[d]egree [m]urder and other charges. [Appellant] allege[s] that counsel informed him not to take the offer. [Appellant] then alleges that:
"During jury selection for the May 2009 trial, Attorney Seman discussed with [Appellant] [the] Commonwealth['s] offers involving agreement on a minimum sentence of 10, 12, and 15 years['] incarceration. Attorney Seman did not advise [Appellant] that an acquittal on all charges would be extremely difficult in light of [Appellant]'s statement that [Appellant] was
present at the scene at the time of the stabbing and in light of Marvin Harpool's testimony regarding [Appellant]'s participation in the assault of the victim. lf Attorney Seman advised [Appellant] of the difficulties in obtaining an acquittal, [Appellant] would have accepted any of the offers made during the jury selection process for the May 2009 trial." (Amended PCRA Petition, pp. 13-14)
[On August 7, 2014, a PCRA hearing was held.] At the PCRA hearing[,] trial counsel testified that he represented [Appellant] at each trial, three of which resulted in a mistrial, as well as the fourth trial which resulted in [Appellant]'s conviction. Counsel testified that throughout his representation of [Appellant], there were negotiations and discussions concerning potential plea agreements "almost on a weekly basis while we were going through this[.]" Counsel testified that despite repeated efforts to obtain an acceptable plea offer from the Commonwealth, the Commonwealth never made an offer that was "anywhere near something that [Appellant] was willing to accept and that the only offer actually made was 20 to 40 years." Counsel denied that there were offers made with minimum sentences of 10, 12 or 15 years and that if offers of 10 or 12 years had been made he would have advised [Appellant] to take any such offers. Counsel acknowledged that those numbers were discussed in the context of requesting such an offer, stating:
These are all numbers that Mr. Garner and I discussed, like could we possibly get it. Mr. Garner would say, "Is there any way we could get a 10 to 20. One time he asked me if there was any way he could get a 5 to 10. Just because a number is discussed, certainly, absolutely was not an offer made by the Commonwealth because you know, 10 to 20, I would have told Mr. Garner to consider, if not jump at it."Counsel reiterated that the only offer actually made was 20 to 40 years and that the Commonwealth already had a co-defendant who was willing to testify against the other two co-defendants, that [Appellant] did not wish to testify and that these factors hampered the ability to obtain an acceptable plea agreement.
[Appellant] testified at the PCRA hearing and acknowledged that various possible agreements were discussed prior to each of his trials. He testified that prior to his first trial the only plea was an "open plea" and that the length of the sentence would be at the discretion of the court. [Appellant] testified that after each of the trials different offers were discussed "until the fourth trial, we had a conversation down in the bullpen. He told me. 'Well, the DA offered a 10 to 20.'" [Appellant] testified that he informed counsel that such an offer "was still a lot" and that in response counsel stated, "I am going to try to get something lower" based on [Appellant]'s prior score of zero, [Appellant] said that he indicated "fine" and counsel left and ret[urned] twenty minutes later and informed [Appellant] that "the deal was off the table."
[Appellant] denied that there was ever an offer of 20 to 40 but that that sentence was discussed in the context of an open plea. He testified that subsequent offers were made of "15 to 30, 12 to 24 and a 10 to 20" and that "[e]ach deal was made before the start of the new trial."
[Appellant] also testified regarding the alleged plea offer of 12 to 24 that:
PCRA Court Opinion, 1/12/15, at 2-5 (some citations omitted, emphasis and italics in original). Accordingly, on August 20, 2014, the PCRA court denied Appellant's PCRA petition. On August 21, 2014, Appellant filed a timely notice of appeal."He said, "I'd think about it ," but at the same time, I'm like , there wasn't that much - there was nothing against me except a person saying, yeah, I seen him, and the person just happened to be a liar, so therefore, it was like his word against mine[.]" (emphasis added).[Appellant] then testified that there was an offer made of 10 to 20 and that counsel indicated that he thought he could get it to 4 to 8 with a boot camp recommendation. [Appellant] also testified that he even as to that sentence he said "Man, I'm not too sure," and he (counsel) said, "Why not?" [Appellant] then indicated that counsel told him that he could "get a 5 to 10 or 6 to 12 on your first offense." It was at that point that [Appellant] told counsel, referencing the 4 to 8, "Fine. If you can get it, then I'll do the time." [Appellant] contends that he would have taken the offer of 10 to 20 even if it included a condition to testify against his codefendant. After consideration of all of the testimony it was determined that [Appellant] failed to meet his burden of establishing that counsel was ineffective in failing to consult with him regarding the plea offer or the risks of proceeding to trial.
Although not ordered to do so, Appellant filed a concise statement of errors complained of on appeal in accordance with Pennsylvania Rule of Appellate Procedure 1925(b). On January 12, 2015, the trial court filed a Rule 1925(a) opinion.
On appeal, Appellant raises the following issue for our review.
Whether Attorney Seman was ineffective--in violation of Article I, Section 9 of the Pennsylvania Constitution and/or the Sixth and Fourteenth Amendments to the United States Constitution--in failing to adequately consult with defendant about accepting or rejecting the plea offer made prior to the October 7-9, 2008 jury trial in this matter proposing a sentence the minimum of which was 10,Appellant's Brief at 3.
12 or 15 years['] incarceration where it is reasonably likely defendant would have accepted that offer after adequate consultation?
The following principles guide our review of an appeal from the denial of PCRA relief.
On appeal from the denial of PCRA relief, our standard and scope of review is limited to determining whether the PCRA court's findings are supported by the record and without legal error. [Our] scope of review is limited to the findings of the PCRA court and the evidence of record, viewed in the light most favorable to the prevailing party at the PCRA court level. The PCRA court's credibility determinations, when supported by the record, are binding on this Court. However, this Court applies a de novo standard of review to the PCRA court's legal conclusions.Commonwealth v. Medina , 92 A.3d 1210, 1214-1215 (Pa. Super. 2014) (en banc) (internal quotation marks and citations omitted), appeal granted, 10 A.3d 658, (Pa. 2014). Further, in order to be eligible for PCRA relief, a petitioner must plead and prove by a preponderance of the evidence that his conviction or sentence arose from one or more of the errors listed at Section 9543(a)(2) of the PCRA. 42 Pa.C.S.A. § 9543(a)(2). These errors include ineffectiveness of counsel. Id. § 9543(a)(2)(ii). These issues must be neither previously litigated nor waived. Id. § 9543(a)(3).
In his sole issue on appeal, Appellant challenges that trial counsel was ineffective. When reviewing a claim of ineffective assistance, we apply the following test, first articulated by our Supreme Court in Commonwealth v. Pierce , 527 A.2d 973 (Pa. 1987).
When considering such a claim, courts presume that counsel was effective, and place upon the appellant the burden of proving otherwise. Counsel cannot be found ineffective for failure to assert a baseless claim.Commonwealth v. Michaud , 70 A.3d 862, 867 (Pa. Super. 2013) (internal quotation marks and citations omitted). "Failure to establish any prong of the test will defeat an ineffectiveness claim." Commonwealth v. Birdsong , 24 A.3d 319, 329 (Pa. 2011).
To succeed on a claim that counsel was ineffective, Appellant must demonstrate that: (1) the claim is of arguable merit; (2) counsel had no reasonable strategic basis for his or her action or inaction; and (3) counsel's ineffectiveness prejudiced him.
...
[T]o demonstrate prejudice, appellant must show there is a reasonable probability that, but for counsel's error, the outcome of the proceeding would have been different.
Herein, Appellant argues counsel was ineffective for failing to advise him to take plea offers he alleges the Commonwealth offered. Appellant's Brief at 18-21. Specifically, Appellant asserts the PCRA court erred in believing trial counsel that there were no offers of less than 20 to 40 years imprisonment made by the Commonwealth. Id. at 18. After careful review, we conclude Appellant's claim is meritless. See Michaud , supra. The PCRA court's Rule 1925(a) opinion thoroughly and accurately sets forth the reasons for its denial of Appellant's claim. A review of the August 7, 2014, PCRA hearing transcript reveals the PCRA court's credibility conclusions are supported by the record. See Medina , supra. Accordingly, we adopt the opinion of the Honorable Randal B. Todd as our own for purposes of our review. See PCRA Court Opinion, 1/12/15, at 5-8.
For the foregoing reasons, we conclude Appellant's issue is without merit. Therefore, discerning no error by the PCRA court, we affirm the August 20, 2014 order denying Appellant's PCRA petition.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/26/2015
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