Opinion
949 MDA 2023 J-S45045-23
01-09-2024
COMMONWEALTH OF PENNSYLVANIA v. NATHANIEL GABRI ACEVEDO Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
Appeal from the PCRA Order Entered June 22, 2023 In the Court of Common Pleas of Dauphin County Criminal Division at No(s): CP-22-CR-0005773-2019
BEFORE: BOWES, J., LAZARUS, J., and STEVENS, P.J.E. [*]
MEMORANDUM
STEVENS, P.J.E.
Appellant, Nathaniel Gabri Acevedo, appeals pro se from the order entered in the Court of Common Pleas of Dauphin County dismissing his first petition filed pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. §§ 9541-9546. Specifically, he presents a layered ineffective assistance of counsel claim in which he maintains court-appointed PCRA counsel ineffectively failed to raise and develop a claim of plea counsel's ineffective stewardship. After careful review, we affirm.
On the morning of Thursday, September 5, 2019, officers from the Harrisburg Police Department responded to a report that a deceased man was found in a lower parking lot of the Civil War Museum in Reservoir Park. Affidavit of Probable Cause, 9/11/19, at 1. They observed two gunshot wounds to the head and face of a man later identified as Torin Dworchak. An autopsy confirmed that Mr. Dworchak's cause of death was homicide by gunshot wounds to the head. Id.
Detectives from the Harrisburg Police Criminal Investigation Division acted on a lead that a debit card issued to Mr. Dworchak was being used at local retail stores. Id. Viewing store video surveillance recordings, the detectives were able to identify Tyrese Randolph and Appellant as the two men depicted using Mr. Dworchak's debit card.
Police apprehended and interviewed Randolph, who confessed to how Appellant and he planned to commit an armed robbery of Dworchak at their arranged meeting with him, carried out the armed robbery with Appellant ordering Dworchak at gunpoint to get into the trunk of his own car, and drove to different location where Appellant opened the trunk and fired two gunshots fatally striking Dworchak in the head and face. Id. at 1-2.
According to Randolph, Appellant drove to a remote area where the two men abandoned the car with Dworchak's lifeless body in the trunk. Id. at 2. Randolph claimed that on the following day, Appellant told him he had returned to the car and drove to the Museum to unload Dworkin's body before driving to another location to abandon the vehicle. Id. at 2.
On October 9, 2019, a criminal information was filed charging Appellant with Murder of the First Degree, Murder of the Second Degree, Robbery- Threat of Immediate Serious Bodily Injury, Kidnapping to Facilitate a Felony,Conspiracy to Commit Robbery, and Conspiracy. Appellant entered into a counseled guilty plea agreement and, on September 27, 2021, pleaded guilty to Count 1, murder in the first-degree, Count 3, Robbery-Threat of Immediate Serious Bodily Injury, and Count 5, Conspiracy to Commit Robbery. The trial court sentenced Appellant to life in prison without the possibility of parole on Count 1 and to an aggregate term of ten to twenty years' incarceration on the remaining two counts. Sentencing Order, 9/27/21. No post-sentence motion or direct appeal was filed.
On August 19, 2022, Appellant filed a timely pro se PCRA petition, his first, in which he alleged ineffective assistance of plea counsel induced an unlawful plea of guilty by failing to explain adequately the guilty plea procedure. See infra. The PCRA court appointed PCRA counsel, who eventually filed a Petition to Withdraw and a "no-merit letter" pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988).but on October 18, 2022
Appellant raises two questions for this Court's consideration:
1. Whether Attorney Kristen Weisenberger, Esq., was ineffective for filing a "no-merit letter" to be withdrawn as counsel when Appellant preserved genuine issues of material facts that Appellant was under the influence of two sticks of K2 (synthetic cannabinoid)
and two Percocet pills when [he] pleaded guilty at court?
2. Whether fraud upon the court was committed when trial attorney knew Appellant was under the influence of two controlled substances and Attorney Miller, Esq., and her husband told me to be quite [sic] and not to tell the judge of D.A. or I would piss them off and get the death penalty instead of getting less than a life sentence?
Brief for Appellant, at 6 (unenumerated).
We review an order denying a petition for collateral relief to determine whether the PCRA court's decision is supported by the evidence of record and free of legal error. Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014). "This Court grants great deference to the findings of the PCRA court if the record contains any support for those findings." Commonwealth v. Anderson, 995 A.2d 1184, 1189 (Pa. Super. 2010).
To prevail on a petition for PCRA relief, a petitioner must plead and prove, by a preponderance of the evidence, that his conviction or sentence resulted from one or more of the circumstances enumerated in 42 Pa.C.S.A. § 9543(a)(2), which includes ineffectiveness of counsel. It is settled that "a PCRA petitioner may, after a PCRA court denies relief, . . . raise claims of PCRA counsel's ineffectiveness at the first opportunity to do so, even if on appeal." Commonwealth v. Bradley, 261 A.3d 381, 401 (Pa. 2021).
Here, Appellant first alleged the ineffectiveness of PCRA counsel in his June 7, 2023, pro se "Objection to the PCRA Court's Intention to Dismiss PCRA [Petition]", in which he asserted that PCRA counsel denied him effective assistance of counsel by filing a Turner/Finley petition to withdraw despite evidence of plea counsel's ineffective stewardship. The PCRA court denied Appellant's objection. Because the PCRA court did not order Appellant to file a Pa.R.A.P. 1925(b) concise statement of matters complained of on appeal, the next opportunity for Appellant to raise his layered ineffectiveness claim was in a timely pro se appellate brief. A review of Appellant's pro se brief confirms that he has preserved his layered claim for this Court's review.
To determine whether the PCRA court properly rejected Appellant's claim that PCRA counsel rendered ineffective assistance when she filed a petition to withdraw instead of challenging plea counsel's stewardship, we must first address whether plea counsel was ineffective. Accordingly, "the critical inquiry is whether the first attorney that the defendant asserts was ineffective did, in fact, render ineffective assistance of counsel. If that attorney was effective, then subsequent counsel cannot be deemed ineffective for failing to raise the underlying issue." Commonwealth v. Burkett, 5 A.3d 1260, 1270 (Pa. Super. 2010).
The law presumes counsel has rendered effective assistance. Commonwealth v. Rivera, 10 A.3d 1276, 1279 (Pa. Super. 2010). "[T]he burden of demonstrating ineffectiveness rests on [the] appellant." Id. To satisfy this burden, the appellant must plead and prove by a preponderance of the evidence that: (1) the underlying claim has arguable merit; (2) no reasonable basis existed for counsel's actions or failure to act; and (3) there is a reasonable probability that the outcome of the challenged proceeding would have been different absent counsel's error. Bradley, 261 A.3d at 390; Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014).
To establish the prejudice prong, the petitioner must prove a reasonable probability that the outcome of the relevant proceedings would have been different but for counsel's action or inaction. Commonwealth v. Busanet, 54 A.3d 35, 46 (Pa. 2012). Where a guilty plea was entered, prejudice is demonstrated by showing "it is reasonably probable that, but for counsel's errors, he would not have pleaded guilty and would have gone to trial." Commonwealth v. Rathfon, 899 A.2d 365, 370 (Pa. Super. 2006) (citation omitted). "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Commonwealth v. Sandusky, 203 A.3d 1033, 1044 (Pa. Super. 2019) (citation omitted). "[B]oilerplate allegations and bald assertions of ... ensuing prejudice cannot satisfy [an appellant's] burden to prove that counsel was ineffective." Commonwealth v. Paddy, 15 A.3d 431, 443 (Pa. 2011).
"Arguable merit exists when the factual statements are accurate and could establish cause for relief." Commonwealth v. Urwin, 219 A.3d 167, 172-73 (Pa. Super. 2019). "Whether the facts rise to the level of arguable merit is a legal determination[,]" see id. (citation omitted), and "counsel cannot be deemed ineffective for failing to raise a meritless claim." Commonwealth v. Fears, 86 A.3d 795, 804 (Pa. 2014). Finally, a failure to satisfy any prong of the test will result in rejection of the appellant's claim. Spotz, 84 A.3d at 311.
Appellant's underlying claim raised in his pro se brief is that plea counsel was ineffective for permitting him to plead guilty while knowing he was under the influence of an intoxicating agent, namely, "2 sticks of K2 (synthetic cannabinoid) and two Percocet pills." Pro Se Brief of Appellant, at 9 (unenumerated). According to Appellant, plea counsel told him to "shut up" and remain silent about being "high off drugs because it would piss the D.A. and Judge off and they would seek the 'Death Penalty' in [his] case." Id. Only by pleading guilty to first-degree murder, plea counsel allegedly told him, could he retain any chance of avoiding a mandatory life sentence. Pro se Brief, at 10. Appellant asserts that because plea counsel must have known this statement to be false, he rendered ineffective assistance and committed a fraud upon the court.
In the PCRA court's Memorandum Opinion and Order of May 22, 2023, opinion, however, it explains that Appellant's pro se PCRA petition was limited to the statement, "My lawyers at that time proved to be ineffective & did not break down the terms of the courtroom which made the whole procedure hard to understand. Also, [plea counsel] Deanna Muller's husband which wasn't counsel at all confused me with terms so I couldn't understand my lawyer." See Pro Se PCRA petition, 8/22/22, at 4. In the same petition, Appellant checked boxes alleging ineffective assistance of counsel and a plea of guilty unlawfully induced. Id. at 2.
The PCRA court opined that the transcript of Appellant's guilty plea hearing refutes Appellant's claim of a confusing proceeding that deprived him of a full and accurate advisement about the consequences of his guilty plea. Instead, the court continued, a counseled Appellant received a clear and easily understood description of the plea agreement, which called for him to plead guilty to a charge of murder in the first degree for which the only sentence available is a mandatory life sentence:
[DISTRICT ATTORNEY]: The defendant is present in court with his attorney, Ms. Muller. I believe he's going to be pleading guilty to three of the charges here today.
The plea agreement is that the defendant will plead guilty to Count 1, first-degree murder, Count 3, robbery, and Count 5 on the Criminal Information, criminal conspiracy to commit robbery.
The plea agreement is that obviously he'll receive a life sentence at Count 1 as it's a mandatory sentence. Count 2 and Count 3 will be run concurrent. That is essentially the plea agreement here. No agreement as to fines and costs or restitution.
Is that the agreement as you understand it, Mr. Acevedo?
[APPELLANT]: Yes.
. . .
[DISTRICT ATTORNEY]: Mr. Acevedo, you have in front of you what is known as a guilty plea colloquy form. There are three charges on this form.
The first charge is murder in the first degree, the second charge is robbery, and the third charge is criminal conspiracy to commit robbery.
The first thing is that the maximum punishments in this case, first of all, murder in the first degree, there's only one possible sentence. That's a mandatory life sentence.
Notes of Testimony, Guilty Plea and Sentencing, 9/27/21, at 2 (emphasis added).
We agree and note further that Appellant answered in the affirmative a series of questions asking whether he understood that he was to receive a life sentence plus 40 years plus $100,000 in fines, whether he was 22 years of age and able to read, write, and understand the English language, and whether plea counsel had counseled him in this case and that it was his own decision, free from influence or coercion, to plead guilty. N.T. at 7-9.
Afterward, each offense charged and the allegations supporting each were read to Appellant, and when he was asked, "How do you plead?", the transcript reveals he replied "Guilty" without indicating any need for clarification or assistance. N.T. at 10-12. Even when the trial court observed that Appellant's facial expressions at times suggested disagreement with some of the allegations described, Appellant acknowledged that he understood the trial court's explanation that as an accomplice and co-conspirator he became responsible for all the actions of the other criminal actor, and that his plea of guilt was based on those theories. N.T. at 12.
Finally, when the trial court asked Appellant, "Is there anything you want to say to the Court?", Appellant replied:
APPELLANT: That I apologize for what I did. I'm sorry for the people that I hurt. And again, I know there's nothing I can say to bring - to bring him back, but I am sorry.
THE COURT: Can you provide any insight that would cause someone to take the life of another person under those circumstances? Because I'm sure - I mean, as a judge I have that question in my mind. I would think the family would have a multitude of even more. Can you provide any sign of why such a senseless act?
APPELLANT: Honestly, I thought I was doing somebody I called my friend a favor, but I was terribly wrong and I - because he was insecure and confused about who he was.
THE COURT: You're talking about the co-defendant?
APPELLANT: Yes.
THE COURT: Okay.
APPELLANT: And that's - that's it. I thought I was doing something right. I was - I was completely wrong. I was all the way wrong.
THE COURT: Okay. Thank you.N.T. at 21.
This record is entirely consistent with the PCRA court's conclusion that Appellant knowingly and voluntarily pleaded guilty. Nowhere in the transcript does there arise a suggestion, let alone a reasonable probability, that Appellant's guilty plea was the product of either plea counsel's coercion or Appellant's use of intoxicating drugs. Contrary to Appellant's bald allegations of such undue influence and impairment, the transcript of the guilty plea hearing shows an attentive and responsive Appellant who provided voluntary, appropriate answers throughout the proceeding and appeared to understand the entire process, including the fact that he would serve a mandatory life sentence by pleading guilty to murder in the first degree.
Because the PCRA court reviewed Appellant's unsubstantiated claim against this record, we find that it did not abuse its discretion in dismissing his layered ineffective assistance of counsel claim, granting PCRA counsel's petition to withdraw, and dismissing Appellant's petition for collateral relief. Accordingly, we conclude Appellant is entitled to no relief on his present claim.
Order affirmed.
Judgment Entered.
[*] Former Justice specially assigned to the Superior Court.