Opinion
No. 1027 MDA 2021
04-05-2022
COMMONWEALTH of Pennsylvania v. Melissa Dawn PURNELL, Appellant
MEMORANDUM BY STABILE, J.:
Appellant, Melissa Dawn Purnell, appeals from the July 1, 2021 order entered in the Court of Common Pleas of the 39th Judicial District of Pennsylvania—Franklin County Branch, dismissing her petition for collateral relief filed pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. §§ 9541 - 9546. Appellant argues that trial counsel was ineffective for failing to seek enforcement of a plea deal. Following review, we affirm.
Appellant was arrested following a domestic altercation on January 26, 2019, during which she assaulted her husband while he was holding their two-year-old son. PCRA Court Opinion, 7/1/21, at 1. Appellant was charged with one count each of strangulation, endangering the welfare of children [("EWOC")], simple assault, and harassment. Id. As the PCRA court explained:
18 Pa.C.S.A. §§ 2718(a)(1), 4304(a), 2701(a)(1), and 2709(a)(1), respectively.
[Appellant] posted monetary bail and was released on January 27, 2019; one of the conditions of her release was that she have no contact with the victim by any means during the pendency of the case. On February 19, 2019, [Appellant] appeared in central court for her scheduled preliminary hearing; at that time, [Appellant] and the attorney for the Commonwealth reached an agreement where [Appellant] would plead guilty to one count of misdemeanor simple assault in exchange for withdrawal of the strangulation and [EWOC] charges. Also pursuant to the agreement, [Appellant] executed a waiver of preliminary hearing form.
An early disposition date was initially scheduled for February 27, 2019, but was subsequently continued until March 6, 2019. At the March 6 hearing, the Commonwealth withdrew its plea offer.[ ] Accordingly, counsel for both sides completed a request to move the case forward to a mandatory arraignment. As such, the court scheduled mandatory arraignment on March 27, 2019. On March 25, 2019, the Commonwealth filed separate informations re-charging [Appellant] with one count [each of strangulation, EWOC,] and simple assault. [Appellant] subsequently waived arraignment.
At the PCRA evidentiary hearing, counsel for the Commonwealth clarified that she informed Appellant's counsel on February 27 that "the victim was no longer in [ ] agreement with the plea and that [the Commonwealth] was going to withdraw that offer. The case was then continued for one week." N.T., PCRA Hearing, 6/2/21, at 21-22.
Id. at 1-2 (some capitalization omitted).
Appellant, who was represented by Attorney Bret Beynon, proceeded to a jury trial on December 12, 2019. The Commonwealth was represented by First Assistant District Attorney Laura Kerstetter. At the conclusion of trial, the jury returned a guilty verdict on the strangulation and simple assault charges but acquitted Appellant of EWOC. On March 11, 2020, the court sentenced Appellant to six to 23 months' county incarceration on the strangulation conviction and a consecutive 24 months' sentence of probation for simple assault. Appellant did not file a direct appeal.
Appellant filed a timely counseled PCRA petition and the Commonwealth filed a response. The PCRA court conducted an evidentiary hearing on June 2, 2021, at which both Appellant and Attorney Kerstetter testified. The transcript does not reflect either participation by or attendance of Attorney Beynon. On July 1, 2021, the court denied Appellant's petition. This timely appeal followed. Both Appellant and the trial court complied with Pa.R.A.P. 1925. ,
Attorney Shawn Stottlemyer filed the PCRA petition on Appellant's behalf and represented her at the evidentiary hearing. Attorney Ian Brink appeared at the hearing on behalf of the Commonwealth.
In its Rule 1925(a) opinion filed on September 3, 2021, the PCRA court stated, "Our review of the record reveals that the single issue raised by [Appellant] on appeal was fully addressed in our opinion and order of court filed July 1, 2021, and we are content to rely on our reasoning therein." PCRA Court Rule 1925(a) Opinion, 9/3/21, at 4 (some capitalization omitted).
We remind Appellant's counsel that a copy of the Rule 1925(b) statement is to be appended to an appellant's brief. See Pa.R.A.P. 2111(a)(11), (d).
Appellant asks this Court to consider one issue on appeal as follows:
[Whether] trial counsel was ineffective and ha[d] no reasonable basis for her inaction in seeking enforcement of plea agreement for [Appellant] to plead guilty to one count of simple assault graded as a second degree misdemeanor after both parties took substantial steps in executing the agreement when the Commonwealth withdrew the charges of strangulation and [EWOC] and [Appellant] subsequently waived her preliminary hearing and when specific performance of agreement was only remedy that satisfied due process?
Appellant's Brief at 4 (some capitalization omitted).
"[A]n appellate court reviews the PCRA court's findings of fact to determine whether they are supported by the record, and reviews its conclusions of law to determine whether they are free from legal error." Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014) (citation omitted). Where the record supports the PCRA court's findings of fact, they are binding on this Court. Commonwealth v. Watkins, 108 A.3d 692, 701 (Pa. 2014). We review the PCRA court's legal conclusions de novo. Id.
To prevail on a claim of ineffective assistance of counsel, a PCRA petitioner must plead and prove by a preponderance of the evidence each of the following: (1) that the underlying issue is of arguable merit; (2) that counsel had no strategic basis in support of the disputed action or inaction; and (3) that counsel's error was prejudicial, i.e., that there is a reasonable probability that the outcome of the proceeding would have been different but for counsel's error. Spotz, 84 A.3d at 311. "[A] finding that a chosen strategy lacked a reasonable basis is not warranted unless it can be concluded that an alternative not chosen offered a potential for success substantially greater than the course actually pursued." Id. at 311-12 (citation omitted). "To demonstrate prejudice, the petitioner must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different." Id. at 312 (citation omitted). For purposes of prejudice, "[a] reasonable probability is a probability that is sufficient to undermine confidence in the outcome of the proceeding." Id. (citation omitted). "A failure to satisfy any prong of the ineffectiveness test requires rejection of the claim of ineffectiveness." Commonwealth v. Daniels, 963 A.2d 409, 419 (Pa. 2009).
Initially, we note that, having reviewed the record, we find the record supports the PCRA court's findings of fact. Therefore, we are bound by them. We next consider whether the court's legal conclusions are free from legal error.
Again, Appellant asserts that trial counsel was ineffective for failing to seek enforcement of the plea deal. As the PCRA court observes, Appellant "contends that, since both parties took substantial steps in performing the agreement, [trial counsel] should have objected to the re-filing of the previously-withdrawn charges or sought specific performance of the plea agreement." PCRA Court Opinion, 7/1/21, at 4.
The court explained that the Attorney Kerstetter, who represented the Commonwealth at the plea-negotiation stage, testified during the PCRA proceedings that the victim—Appellant's husband—appeared to be in agreement with the proposed offer at the time it was extended to Appellant. However, after the offer was made, the victim expressed strong objection to the agreement. Id. Attorney Kerstetter testified that the typical practice of the District Attorney's office calls for the victim to consent to a plea agreement in a domestic violence case. Moreover, there were allegations that Appellant had violated the no-contact provisions included in both the proposed plea agreement and Appellant's bail condition, allegations that Appellant denied at the hearing. Id. See N.T., PCRA Hearing, 6/2/21, at 15-18, 22-24, 25-27.
In its opinion, the PCRA court conducted an analysis of the three prongs that a petitioner must establish to prevail on an ineffectiveness claim. Its thorough and well-reasoned analysis demonstrated that Appellant's claim lacked arguable merit, id., at 3-9, that Appellant failed to demonstrate that counsel lacked any reasonable basis for her inaction, id. at 9 n. 11, and that Appellant failed to demonstrate that she suffered actual prejudice as a result of counsel's failure to seek enforcement of the plea agreement. Id. at 10-12. We find no error of law in the PCRA court's conclusions of law. Therefore, we adopt the court's analysis and conclusions as our own and incorporate them herein.
In addition, we find it appropriate to address two additional matters regarding Appellant's brief, one with respect to Commonwealth v. Cosby, 252 A.3d 1092 (Pa. 2021), and one with respect to Commonwealth v. McElroy, 27 Pa. D.&C. 4th 258 (Warren Cty. 1994). First, we are constrained to note that Appellant's brief includes more than two full pages of what appears to be an analysis of Cosby. See Appellant's Brief at 10-12. However, what is ostensibly Appellant's analysis is actually nothing more than counsel's cutting-and-pasting of three full paragraphs, spanning more than 430 words, of the Supreme Court's opinion. See Cosby, 252 A.3d at 1133-34. At the end of each of the three paragraphs, counsel adds a citation to the opinion, but does not state or even suggest that the analysis is that of the Supreme Court or that the passage is a quoted portion of the opinion.
Regardless, Cosby is inapposite. In that case:
[District Attorney Bruce] Castor decided that the Commonwealth would decline to prosecute [William] Cosby for the incident involving [Andrea] Constand, thereby allowing Cosby to be forced to testify in a subsequent civil action, under penalty of perjury, without the benefit of his Fifth Amendment privilege against self-incrimination. Unable to invoke any right not to testify in the civil proceedings, Cosby relied upon the district attorney's declination and proceeded to provide four sworn depositions. During those depositions, Cosby made several incriminating statements.
D.A. Castor's successors did not feel bound by his decision, and decided to prosecute Cosby notwithstanding that prior undertaking. The fruits of Cosby's reliance upon D.A. Castor's decision—Cosby's sworn inculpatory testimony—were then used by D.A. Castor's successors against Cosby at Cosby's criminal trial.
Id. at 1099-1100. Our Supreme Court granted allowance of appeal in Cosby "to determine whether D.A. Castor's decision not to prosecute Cosby in exchange for his testimony must be enforced against the Commonwealth." Id. at 1100. The Court found that
the subsequent decision by successor D.A.s to prosecute Cosby violated Cosby's due process rights. No other conclusion comports with the principles of due process and fundamental fairness to which all aspects of our criminal justice system must adhere. Having identified a due process violation here, we must ascertain the remedy to which Cosby is entitled. We note at the outset that specific performance does not automatically apply in these circumstances. As a general rule, specific performance is reserved for remedying an injured party to a fully consummated agreement, such as an agreed-upon and executed plea bargain. Commonwealth v. Spence, 534 Pa. 233, 627 A.2d 1176, 1184 (1993).
...
Specific performance is awarded only when equity and fundamental fairness command it. See ... also Commonwealth v. Mebane, 58 A.3d 1243 (Pa. Super. 2012) (upholding trial court ruling that fundamental fairness required enforcement of the prosecution's plea offer that was later withdrawn, where the defendant detrimentally relied upon the offer)[.]
The PCRA court distinguished Mebane in its opinion. See PCRA Court Opinion, 7/1/21, at 7-8. We agree with the PCRA court's assessment that the circumstances present in Mebane "that warranted special treatment by the trial court are not present in this case." Id. at 8.
Cosby does not provide Appellant any basis for relief under the facts of the instant case. Nor does the Warren County case of McElroy, cited on page 9 of Appellant's brief. Clearly, we are not bound by a decision of a trial court, which Appellant cites for the proposition that "permit[ting] the prosecutor to renege attacks and deteriorates the very integrity of the judicial system and credibility of the commonwealth, which is intolerable." Appellant's Brief at 9. Much more importantly, the order of the common pleas court in McElroy was vacated in Commonwealth v. McElroy, 665 A.2d 813 (Pa. Super. 1995). In rejecting the trial court's decision to enforce a plea agreement, this Court explained that "[t]he plea offer was at no time entered of record or accepted by the trial court. Therefore, appellee is not entitled to receive the benefit of what is, at most, an executory bargain." Id. at 817 (citing Spence, supra , and Commonwealth v. Porreca , 595 A.2d 23 (Pa. 1991) ). The PCRA court included additional quotations from McElroy in its opinion, see PCRA Court Opinion, 7/1/21, at 6-7, and appropriately noted that McElroy bears "substantial similarity to the circumstances here." Id. at 9 n. 10.
For the reasons set forth in the PCRA court's July 1, 2021 opinion and those set forth above, we find that Appellant has failed to prove that her claim has arguable merit, that trial counsel lacked a strategic basis in support of her inaction, or that counsel's error was prejudicial. See Spotz, 84 A.3d at 311. Again, an ineffectiveness claim fails if the petitioner fails to satisfy any prong of the ineffectiveness test. Daniels, 963 A.2d at 419. Because Appellant has failed to satisfy the test for ineffectiveness, she is not entitled to relief.
In the event of further proceedings, the parties shall attach to their filings a copy of the PCRA court's July 1, 2021 opinion.
Order affirmed.
Attachment
IN THE COURT OF COMMON PLEAS OF THE 39TH JUDICIAL DISTRICT OF
PENNSYLVANIA - FRANKLIN COUNTY BRANCH
Commonwealth of Pennsylvania,
v.
Melissa Dawn Purnell, Defendant
Criminal Action, No. 305-2019
OPINION AND ORDER OF COURT
OPINION
Honorable Angela R. Krom, J.
Before the Court is a Petition for Post-Conviction Collateral Relief ("the Petition") filed by the above-captioned defendant on April 9, 2021. For the following reasons, we find that Defendant's claim merits no post-conviction relief.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant was charged with one count of strangulation, one count of endangering welfare of children, one count of simple assault, and one count of harassment by criminal complaint filed November 27, 2019. The charges stemmed from a domestic altercation at 13410 Mockingbird Lane, Letterkenny Township, Franklin County, on January 26, 2019, during which Defendant physically assaulted her husband, Matthew Purnell, while he was holding their two-year-old son.
Defendant posted monetary bail and was released on January 27, 2019; one of the conditions of her release was that she have no contact with the victim by any means during the pendency of the case. On February 19, 2019, Defendant appeared in central court for her scheduled preliminary hearing: at that time, Defendant and the attorney for the Commonwealth reached an agreement where Defendant would plead guilty to one count of misdemeanor simple assault in exchange for withdrawal of the strangulation and endangering welfare of children charges. Also pursuant to the agreement, Defendant executed a Waiver of Preliminary Hearing form.
An early disposition date was initially scheduled for February 27, 2019, but was subsequently continued until March 6, 2019. At the March 6 hearing, the Commonwealth withdrew its plea offer. Accordingly, counsel for both sides completed a request to move the case forward to mandatory arraignment. As such, the Court scheduled mandatory arraignment on March 27, 2019. On March 25, 2019, the Commonwealth filed separate informations re-charging Defendant with one count of strangulation, one count of endangering welfare of children, and one count of simple assault. Defendant subsequently waived arraignment.
After pre-trial conference held November 4. 2019, trial by jury was scheduled for December 12, 2019. Following trial, the jury returned a verdict of guilty on the charges of strangulation and simple assault and not guilty on the charge of endangering welfare of children. On March 11, 2020, this Court sentenced Defendant to a term of 6 to 23 months’ incarceration in the Franklin County Jail on the strangulation conviction; on the simple assault conviction, we sentenced Defendant to a term of 24 months’ probation, to run consecutive to her sentence for strangulation. Defendant was represented by Attorney Bret Beynon throughout these proceedings.
Defendant filed the instant Petition for Post-Conviction Collateral Relief on April 9, 2021, with the assistance of Attorney Shawn M. Stottlemyer. The Commonwealth submitted an Answer to Defendant's Petition for Post-Conviction Collateral Relief on May 12, 2021. On June 2, 2021, an evidentiary hearing was held on Defendant's Petition, at which time the Court heard testimony from Defendant and First Assistant District Attorney Laura Kerstetter.
This matter is now ready for decision.
DISCUSSION
The Post Conviction Relief Act (PCRA) provides an avenue to obtain collateral relief to those wrongly convicted of crimes or serving illegal sentences. 42 Pa.C.S. § 9542. To be eligible for relief, a petitioner must have been convicted of a crime under Pennsylvania law and must be serving or waiting to serve, at the time relief is requested, a sentence of imprisonment, probation, or parole for said crime. 42 Pa.C.S. § 9543(a)(1). Second, a petitioner must prove, by a preponderance of the evidence, that his conviction or sentence resulted from one or more of the enumerated grounds set forth in the statute. 42 Pa.C.S. § 9543(a)(2).
Preliminary, we note the Petition was filed within one year of the date Defendant's judgment of sentence became final. Thus, Defendant's Petition is timely, and we may address the merits. See 42 Pa.C.S. § 9545(b).
In her Petition, Defendant alleges the following enumerated ground for relief (1) "[i]neffective 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."
To succeed on a claim of ineffective assistance of counsel in Pennsylvania, a PCRA petitioner must show: (1) "the underlying claim has arguable merit;" (2) "counsel's actions lacked any reasonable basis;" and (3) "counsel's actions prejudiced the petitioner." Commonwealth v. Jones, 71 A.3d 1061, 1063 (Pa. Super. 2013) (citing Commonwealth v. Montalvo, 641 A.2d 1176, 1186-87 (Pa. Super. 1994) ). Each of the three prongs must be satisfied to merit relief. Commonwealth v. Bath, 907 A.2d 619, 622 (Pa. Super. 2006) (citing Commonwealth v. Bridges, 886 A.2d 1127, 1131 (Pa. 2005) ). Further, "counsel is presumed to be effective" and the burden lies with the petitioner to demonstrate otherwise. Bath, 907 A.2d at 622 (quoting Commonwealth v. Pond, 846 A.2d 699,708 (Pa. Super. 2004) ). We need not analyze each prong if we find Defendant failed to meet any one prong. Daniels, 963 A.2d at 427.
In die present case, Defendant claims counsel was ineffective for failing to seek enforcement of a plea agreement between Defendant and the Commonwealth. At the PCRA hearing, Defendant testified that, at the date and time set for her preliminary hearing, the attorney for the Commonwealth agreed to withdraw, and did in fact withdraw, Defendant's felony charges. Defendant, in exchange, agreed to plead guilty to simple assault at a scheduled early disposition date and waived her right to a preliminary hearing. Defendant testified that she believed she would be entering a plea on March 6, 2019, before the Court. However, she claims she was instead apprised at that time that the offer was withdrawn, and the felony charges were subsequently re-filed by the Commonwealth. Defendant contends that, since both parties took substantial steps in performing the agreement. Attorney Beynon should have objected to the re-filing of the previously-withdrawn charges or sought specific performance of the plea agreement.
In response, the Commonwealth offered the testimony of First Assistant District Attorney Laura Kerstetter, who represented the Commonwealth in the above-captioned matter at the plea negotiation stage. Attorney Kerstetter did not dispute that the offer in question was made to Defendant, or that the Commonwealth actually withdrew Defendant's felony charges shortly after entering into the agreement. According to Attorney Kerstetter, the victim, Defendant's husband, appeared to be in agreement with the proposed offer prior to Attorney Kerstetter communicating it to Defendant. However, after the offer was made, Attorney Kerstetter discussed it with the victim, who expressed strong objection to the proposed agreement. Attorney Kerstetter testified that, in accordance with the District Attorney's Office's typical practice of not entering into plea agreements in domestic violence cases without the victim's consent, she notified counsel for Defendant that the offer would be withdrawn. Attorney Kerstetter also explained that there was another reason behind the Commonwealth's withdrawal of the offer—there were allegations that Defendant had violated the no-contact provision contained both in the proposed plea agreement and in her bail conditions, subsequent to entering into the agreement.
The offer, in addition to providing for two years of probation, also included a no-contact provision with respect to the victim and a mandated anger management program for Defendant.
Attorney Kerstetter acknowledged that withdrawal at this stage was not typical, but testified that the Commonwealth agreed to do so here to keep felonies off of Defendant's record.
Defendant offered brief testimony in response, where she contended that she did not have unauthorized contact with the victim during plea negotiations; she claimed that she and her husband only communicated through their respective custody attorneys and only met to transfer the children back and forth.
In support, she testified that her custody rights were never terminated in her custody case, and she was never sanctioned by probation for having contact with the victim.
In light of the standards for post-conviction relief set forth above, we find that Defendant has not established a meritorious claim for ineffective assistance of counsel.
First, Defendant failed to prove her underlying claim has arguable merit. Pennsylvania Rule of Criminal Procedure 590, which governs pleas and plea agreements, provides, in relevant part:
(A) Generally
(1) Pleas shall be taken in open court.
(2) A defendant may plead not guilty, guilty, or, with the consent of the judge, nolo contendere. If the defendant refuses to plead, the judge shall enter a plea of not guilty on the defendant's behalf.
(3) The judge may refuse to accept a plea of guilty or nolo contendere, and shall not accept it unless the judge determines after inquiry of the defendant that the plea is voluntarily and understandingly tendered. Such inquiry shall appear on the record.
(B) Plea agreements.
(1) At any time prior to the verdict, when counsel for both sides have arrived at a plea agreement, they shall state on the record in open court, in the presence of the defendant, the terms of the agreement...
(2) The judge shall conduct a separate inquiry of the defendant on the record to determine whether the defendant understands and voluntarily accepts the terms of the plea agreement on which the guilty plea or plea of nolo contendere is based.
In her Petition, Defendant concedes that the Pennsylvania Supreme Court has interpreted Rule 590 to mean that, " ‘[w]here a plea agreement has been entered of record and has been accepted by the trial court, the [Commonwealth] is required to abide by the terms of the plea agreement.’ " Commonwealth v. McElroy, 665 A.2d 813, 816 (Pa. Super. 1995) (quoting Commonwealth v. Spence, 627 A.2d 1176 (Pa. 1993) )(emphasis in original). " ‘However, prior to the entry of a guilty plea, the defendant has no right to specific performance of an "executory" agreement.’ " Id. (emphasis in original). The Superior Court cited to the following language in Commonwealth v. Stafford, 416 A.2d 570 (Pa. Super. 1979) as relevant to the reasoning behind the rule:
The Commonwealth is never under any legal obligation to plea bargain with any defendant. Stated another way[,] a defendant has no constitutional right to a plea bargain arrangement... The decision as to whether to enter into plea negotiations is a function of prosecutorial discretion[,] and we will not review such decisions unless such decisions are based upon an invidious classification such as race, religion or national origin...
McElroy, 665 A.2d at 816. Put another way, " ‘[a] District Attorney has a general and widely recognized power to conduct criminal litigation and prosecutions on behalf of the Commonwealth, and to decide whether and when to prosecute, and whether and when to continue or discontinue a case.’ " Id. (quoting Commonwealth v. Stipetich, 652 A.2d 1294, 1295 (Pa. 1995) )(internal quotations omitted). "A district attorney may decide, as a function of her/his prosecutorial discretion, that a plea bargain agreement not yet entered of record and approved by the court is not in the best interests and/or for the general welfare of the citizens of this Commonwealth." McElroy, 665 A.2d at 817. "In that case, it makes little sense, and, indeed, it would violate the trust imposed in that office, to abdicate or to force abdication of prosecutorial discretion to a criminal defendant whose interests are adverse to those of the general citizenry of this Commonwealth." Id. The rule set forth in McElroy is consistent with language contained in a prior case. Commonwealth v. Porreca, which stated that "there is no plea agreement unless it is presented to the court." 595 A.2d 23, 27 n.2 (Pa. 1991).
While Defendant acknowledges the existence of the above case law, she points out that the language in Porreca suggesting that a plea agreement does not exist until presented to the court was merely dicta, was not dispositive of the issues in the case, and was not supported by citation to legal authority. Defendant cites to Commonwealth v. Mebane, 58 A.3d 1243 (Pa. Super. 2012), which was decided after both Porreca and McElroy, in support of her argument.
In Mebane, the Commonwealth made a plea offer to the defendant, which the defendant accepted. 58 A.3d at 1244. At the time of the agreement, neither party was aware that the trial court had issued a ruling on a pending suppression motion in the case. Id. After the defendant accepted the plea offer, but before the agreement was presented to the court, the attorney for the Commonwealth became aware that the court had denied the defendant's suppression motion, but did not inform the defendant of this news. Id. When the parties appeared for the defendant's guilty plea hearing, the Commonwealth, knowing that the trial court had declined to suppress incriminating evidence against the defendant, revoked its plea offer. Id. The Superior Court ultimately determined that enforcement of the Commonwealth's offer was in the interest of justice, finding that the Commonwealth acted inappropriately in withholding the result of the defendant's suppression motion. Id. at 1248-49.
However, we do not read Mebane as directly contradicting Porreca and McElroy. The Mebane Court appears to agree that a defendant whose plea offer has not yet been presented in court does not have a right to specific enforcement of the agreement. Id. at 1248. Instead, the court provides that this "does not necessarily deprive the trial court of the discretion to enforce the plea agreement in circumstances where enforcement is in the interest of justice." Id. In our opinion, this merely carves out a separate avenue for relief in the discretion of the trial court, but does not provide defendants with a right to enforce plea agreements not yet before the court. Significantly, the Mebane Court appeared to limit the applicability of its ruling to only a small number of situations, acknowledging that the "unique circumstances of th[e] case and fundamental fairness demanded a different result..." Id. at 1249.
The circumstances present in Mebane that warranted special treatment by the trial court are not present in this case. Here, the Commonwealth timely communicated the intention to withdraw the offer and tire reasons therefor with counsel for Defendant after the reasons necessitating withdrawal became apparent to the Commonwealth. The Commonwealth withdrew the plea offer in good faith for legitimate reasons, as testified to by Attorney Kerstetter, including: the victim's objection to the agreement and the concerns that Defendant had violated the no-contact provision—according to Attorney Kerstetter, typically, continued no-contact with the victim following bail conditions is a pre-requisite to an offer remaining open. Withdrawal in such cases was consistent with the practice of the District Attorney's Office. There has been no allegation that the Commonwealth's decision to withdraw the plea offer was based on invidious classifications such as race, religion, or national origin, or upon other factors unrelated to the protection of society. The trial court never reached the procedural stage necessary to conduct an inquiry into the validity of a guilty plea, as at no time before the offer was withdrawn was it entered of record or accepted by the court. No extraordinary circumstances existed here that would have permitted the trial court to exercise its discretion to enjoin the Commonwealth to honor a plea agreement that had not yet been effectuated by colloquy.
Although Defendant claims she believed she was going to be entering a plea at the March 6, 2019, hearing, the transcripts of the hearing reveal that counsel for Defendant was made aware of the revocation, and the reasons therefor, prior to that date. In fact, on March 6, defense counsel explained to the Court that the hearing had previously been continued from an early disposition date a week prior due to the victim's disagreement with the proposed offer. Similarly, Attorney Kerstetter testified that she advised defense counsel of the victim's disagreement on the previously-scheduled disposition date.
Accordingly, the regular rule applies here. Since the agreement was never presented to and accepted by the Court prior to the Commonwealth withdrawing the offer, Defendant is not entitled to enforcement of the agreement. See Commonwealth v. Martin, 5 A.3d 177, 196 (Pa. 2010) ("since the plea agreement was never presented to or accepted by the court, it never existed; it was at most an offer not accepted. Accordingly, the PCRA court properly held that [the defendant] is not entitled to specific performance of the alleged plea agreement, and that counsel cannot be deemed ineffective for failing to raise this meritless claim."); see also McElroy, 665 A.2d. 813. As such, Defendant has not satisfied the arguable merit prong of the test for ineffective assistance. See Commonwealth v. Davis, 459 A.2d 1267, 1271 (Pa. Super. 1983) (quoting Commonwealth v. Rice, 318 A.2d 705 (Pa. 1974) )( " ‘As we have often said, counsel will not be held ineffective for failing to perform a futile act.’ ").
The Facts in McElroy bear substantial similarity to the circumstances here. In that case, following the filing of formal charges, the district attorney proposed an agreement to counsel for the defendant wherein the defendant would plead nolo contendere to one count of reckless endangerment in exchange for node prossing counts one through four. 665 A.2d at 815. Two months later, the defendant sent a letter to the district attorney accepting the offer. Id. Subsequently, the district attorney met with members of the victim's family to discuss the proposed plea negotiations, at which time the victim's family strongly objected to the proposal. Id. Thereafter, the district attorney met with counsel for the defendant and informed him that the victim's family objected to the proposed plea and therefore, the offer would be withdrawn, id. Ultimately, the Superior Court held that "[t]he plea offer was at no time entered of record or accepted by the trial court. Therefore, [the d]efendant is not entitled to receive the benefit of what is, at most, an executory bargain." McElroy, 665 A.2d at 817.
Second, Defendant has not demonstrated that counsel lacked any reasonable basis for her action or inaction. "With regard to the second, reasonable basis prong, ‘[the courts] do not question whether there were other more logical courses of action which counsel could have pursued; rather, [the court] must examine whether counsel's decisions had any reasonable basis.’ " Commonwealth v. Paddy, 15 A.3d 431,442 (Pa. 2011) (quoting Commonwealth v. Washington, 927 A.2d 586, 594 (Pa. 2007) ). Instead, the court shall "conclude that counsel's chosen strategy lacked a reasonable basis only if [the defendant] proves that ‘an alternative not chosen offered a potential for success substantially greater than the course actually pursued.’ " Paddy, 15 A.3d at 442 (quoting Commonwealth v. Williams, 899 A.2d 1060, 1064 (Pa. 2006) ).
Defendant did not present testimony from trial counsel at the PCRA hearing regarding counsel's strategy and reasons for her action or inaction concerning the plea agreement. Defendant likewise has not offered an affidavit from counsel or any other evidence as to counsel's thought process behind her tactics in this matter. Instead, Defendant merely recites in her Petition the language contained in the standard, stating that "[c]ounsel had no reasonable basis for her inaction in seeking enforcement of the agreement." Petition, at ¶22." The Pennsylvania Supreme Court has "stress[ed] that boilerplate allegations and bald assertions of no reasonable basis... cannot satisfy a petitioner's burden to prove that counsel was ineffective." Paddy, 15 A.3d at 443. Similarly, " ‘[a]s a general rule, a lawyer should not be held ineffective without first having an opportunity to address the accusation in some fashion... The ultimate focus of an ineffectiveness inquiry is always upon counsel, and not upon an alleged deficiency in the abstract.’ " Commonwealth v. Koehler, 36 A.3d 121, 132 (Pa. 2012) (quoting Commonwealth v. Colavita, 993 A.2d 874, 895 (Pa. 2010) ). As Defendant has failed to proffer proper evidentiary support under this prong, we find that she has not overcome the presumption that counsel provided effective representation.
Even if Defendant's failure to sufficiently plead and prove this prong is not fatal to her claim, Defendant's lack of a right to enforce a plea offer that has not yet been accepted by the court precludes Defendant from satisfying this prong as well. See Commonwealth v. Evans, 451 A.2d 734, 736 (Pa. 1982) (quoting Commonwealth v. Ford, 421 A.2d 1040, 1044 (Pa. 1980) )(explaining that the Pennsylvania Supreme Court " ‘will find a "reasonable basis" for inaction if the thing not done had no likelihood of success.’ ").
Relatedly, Defendant has not demonstrated that she suffered actual prejudice as a result of counsel failing to seek enforcement of the plea agreement. This prong "means that, absent counsel's conduct, there is a reasonable probability the outcome of the proceedings would have been different." Jones, 71 A.3d at 1063 (citing Montalvo, 641 A.2d at 1187 ).
With respect to prejudice, Defendant argues that "[s]trict compliance with plea bargains is necessary in order to avoid the possibility that a defendant may be coerced or fraudulently induced to waive a number of significant constitutional rights by pleading guilty." Petition, at ¶17 (citing Commonwealth v. Landi, 421 A.2d 442 (Pa, Super. 1980) ). Defendant claims she waived an important constitutional right in this case: her right to a preliminary hearing, which she says she would not have done had the Commonwealth not agreed to withdraw her felony charges. Defendant acknowledges that in this Commonwealth, "the full panoply of trial rights do not apply at a preliminary hearing[;]" however, she emphasizes that "the [preliminary] hearing is nevertheless a critical stage of the proceedings and is intended under Rule 542 to be more than a mere formality." Petition, at ¶20 (citing Commonwealth v. McClelland, 233 A.3d 717, 736 (Pa. 2020) ). Defendant also alleges that she suffered prejudice "in that she served time in the Franklin County Jail and is now a convicted felon." Petition, at ¶23.
We do not dispute that Defendant suffered negative consequences as a result of proceeding to trial, and being convicted, on felony charges, rather than pleading guilty to lesser charges with a recommended sentence of probation. However, the appropriate inquiry is whether the outcome of the proceedings would have been different, had counsel acted properly. Like the other requirements, Defendant has the burden to plead and prove prejudice; she has not done so.
"While the Commonwealth and a criminal defendant are free to enter into an arrangement that the parties deem fitting, the terms of a plea agreement are not binding upon the court." Commonwealth v. White, 787 A.2d 1088, 1091 (Pa. Super. 2001). "Rather the court may reject those terms if the court believes the terms do not serve justice." Id.; see also Commonwealth v. Wissler, 469 A.2d 686, 687 (Pa. Super. 1983) ("Inherent in [a defendant's] negotiations with the District Attorney was the risk that the trial court would reject the District Attorney's recommendation regarding the sentence to be imposed. When rejection of the plea in fact occurred, [the defendant] was protected by the right to withdraw his guilty plea; he was not entitled to specific performance of his plea agreement.").
" ‘The Pennsylvania Rules of Criminal Procedure grant the trial court broad discretion in the acceptance and rejection of plea agreements. There is no absolute right to have a guilty plea accepted.’ " Commonwealth v. Chazin, 873 A.2d 732, 737 (Pa. Super. 2005) (quoting Commonwealth v. Hudson, 820 A.2d 720, 727-28 (Pa. Super. 2003) ).
As such, the fact remains that even had the Commonwealth not withdrawn the original offer, the extent to which the trial court would have accepted the resulting plea bargain remains at best uncertain. As our discussion of the law above makes apparent, "the Commonwealth's offer of plea, even if accepted by the defendant unequivocally, does not dispose of a criminal prosecution; indeed, the plea bargain is of no moment until accepted by the trial court." Chazin, 873 A.2d at 737. Consequently, in the context of Defendant's ineffective assistance claim, prejudice, i.e ., the reasonable probability that, but for the act or omission challenged, the outcome of the proceeding would have been different, cannot be established. See Chazin, 873 A.2d at 737.
Defendant presented no evidence at the PCRA hearing showing that had the Commonwealth not withdrawn its original offer, the trial court would have accepted the resulting plea bargain. In fact, based upon the stated reasoning by Attorney Kerstetter for withdrawing the offer, that the victim expressed opposition to the plea agreement, the Court likely would not have accepted the agreement. Attorney Kerstetter similarly testified that in her opinion, the Court would not have accepted the agreement if the victim was opposed.
Based upon the foregoing, it is clear that Defendant's claim has failed to satisfy the test for ineffective assistance of counsel.
CONCLUSION
For the reasons above, we find that the claim raised in Defendant's Petition does not warrant post-conviction relief. An Order follows.