Opinion
J-S68042-18 No. 839 WDA 2018
12-27-2018
COMMONWEALTH OF PENNSYLVANIA v. ASHLEY MARIE BARBER Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order May 7, 2018
In the Court of Common Pleas of Crawford County Criminal Division at No(s): CP-20-CR-0000573-2012 BEFORE: SHOGAN, J., DUBOW, J., and STEVENS, P.J.E. MEMORANDUM BY STEVENS, P.J.E.:
Former Justice specially assigned to the Superior Court.
Appellant, Ashley Marie Barber, appeals from the order entered in the Court of Common Pleas of Crawford County dismissing her first petition filed pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. § 9541-9546. We affirm.
The PCRA court aptly sets forth the pertinent facts and procedural history, as follows:
Defendant/Petitioner [hereinafter "Appellant"] pled guilty, along with her co-defendant Jade Olmstead, to the first-degree murder of Brandy Stevens.
To put the matter in context, the following is a summary of the facts Appellant admitted in her plea colloquy. Appellant admitted that Olmstead and she had a plan to lure Stevens into the woods to fight her. After the physical altercation began, the plan became to kill her. The fight started with Appellant hitting Stevens in the face and throat with her fists and hands. Stevens began fighting back and screaming for help. Appellant held Stevens while Olmstead struck her multiple times in the head with a shovel.
Petitioner beat Stevens' forehead off a tree stump until she could see visible blood and brain material. Appellant used a rope that had been on the tree stump to first hold and then to strangle Stevens. When Stevens stopped fighting back, Appellant stated that her "anger wasn't done" and it was frustrating to her that Stevens was no longer fighting so Appellant dropped a boulder from over her head onto Stevens' face. Appellant then poured water into Stevens' mouth to drown her. Appellant and Olmstead put Stevens in a shallow grave they dug in the ground and covered her face and body with dirt.PCRA Court Opinion, 5/7/18, at 1-2.
Appellant was sentenced to a term of life imprisonment after her guilty plea on November 14, 2013. Appellant filed a pro se Motion for Post Conviction Collateral Relief on November 5, 2014. Appellant was appointed PCRA counsel and counsel filed an Amended Petition for PCRA relief on February 20, 2015. The court heard argument on the Amended Petition on May 4, 2015 and an evidentiary hearing was held on October 26, 2017. The court ordered briefs to be filed within 45 days. Upon motion of the Appellant, the court extended time for filing, and both the Commonwealth's and the Appellant's briefs were timely submitted by January 11, 2018.
Appellant assert[ed] essentially two reasons for relief under the PCRA: 1) that her guilty plea was unlawfully induced and thus not knowing, voluntary, and intelligent; and 2) ineffective assistance of counsel [in inducing her to plead guilty when she was incompetent to do so]. The two issues [as presented] dovetail[ed] as Pennsylvania law sets forth that a criminal defendant has the right to effective assistance of counsel during a plea process as well as during trial. [After thorough review of both issues, the PCRA court denied Appellant relief by order dated May 7, 2018].
Appellant presents the following question for our consideration:
[Did] the PCRA court err[ ] in denying Appellant's Amended Petition for Post-Conviction Collateral Relief where the Appellant contends (1) Appellant did not knowingly, voluntarily, and intelligently enter her plea based upon a totality of circumstances; (2) Appellant testified regarding the ineffective assistance of counsel concerning the entry of [her] guilty plea; and (3) the PCRA court failed to permit testimony from a psychiatrist regarding her
past mental health history and mental status at the time of entry of Appellant's guilty plea?Appellant's brief, at 3.
We begin with our standard of review governing PCRA appeals.
This Court analyzes PCRA appeals in the light most favorable to the prevailing party at the PCRA level. Our review is limited to the findings of the PCRA court and the evidence of record and we do not disturb a PCRA court's ruling if it is supported by evidence of record and is free of legal error. Similarly, we grant great deference to the factual findings of the PCRA court and will not disturb those findings unless they have no support in the record. However, we afford no such deference to its legal conclusions. Where the petitioner raises questions of law, our standard of review is de novo and our scope of review is plenary. Finally, we may affirm a PCRA court's decision on any grounds if the record supports it.Commonwealth v. Benner , 147 A.3d 915, 919 (Pa.Super. 2016) (quoting Commonwealth v. Perry , 128 A.3d 1285, 1289 (Pa.Super. 2015)).
Appellant first raises a mental incompetence claim against her guilty plea. As a prefatory matter, we note that an appellant generally waives a challenge to the validity of his or her guilty plea if it is not first raised before the trial court and in a direct appeal. Commonwealth v. Lincoln , 72 A.3d 606, 609-610 (Pa.Super. 2013) ("[a] defendant wishing to challenge the [validity] of a guilty plea on direct appeal must either object during the plea colloquy or file a motion to withdraw the plea within ten days of sentencing."); Pa.R.Crim.P. 720(A)(1), (B)(1)(a)(i). In the case sub judice, Appellant has not previously raised this challenge, hence, the general rule would call for waiver of this claim.
However, in Commonwealth v. Brown , 872 A.2d 1139 (Pa. 2005), the Pennsylvania Supreme Court held that "the failure to raise on direct appeal a claim that the appellant was incompetent at the time of trial does not constitute a waiver of that claim for purposes of the PCRA." Id. at 1155-56. In so doing, the Court acknowledged it has 'long held that 'the mental competence of an accused must be regarded as an absolute and basic condition of a fair trial[,]'" such that "when the issue presented is whether a person was competent to stand trial, the waiver rule is not applicable." Id. at 1155 (citations omitted). Among the PCHA cases upon which the Court relied in this regard was Commonwealth v. Giknis , 420 A.2d 419 (Pa. 1980), where the Court declined to find waiver where appellant asserted for the first time in his PCHA petition that he was incompetent to have entered a guilty plea. Brown , 872 A.2d at 1155. Observing that the relevant provisions defining waiver in both the PCHA and PCRA are nearly identical, the Brown Court declined to find waiver under the PCRA. On this authority, therefore, we determine Appellant has not waived her competence claim by failing to raise it previously before the trial court or on direct appeal.
In addressing Appellant's issue related to his guilty plea, we first set forth our well-settled standard of review.
"Our law is clear that, to be valid, a guilty plea must be knowingly, voluntarily and intelligently entered." Commonwealth v. Pollard , 832 A.2d 517, 522 (Pa.Super. 2003). In Commonwealth v. Fluharty , [632 A.2d 312 (Pa.Super. 1993)], we set forth guidelines to determine the validity of a guilty plea:
In order for a guilty plea to be constitutionally valid, the guilty plea colloquy must affirmatively show that the defendant understood what the plea connoted and its consequences. This determination is to be made by examining the totality of the circumstances surrounding the entry of the plea. [A] plea of guilty will not be deemed invalid if the circumstances surrounding the entry of the plea disclose that the defendant had a full understanding of the nature and consequences of his plea and that he knowingly and voluntarily decided to enter the plea.
Commonwealth v. Rush , 909 A.2d 805, 808 (Pa.Super. 2006).
Id. at 314 (quotation marks and citations omitted).
"A person who elects to plead guilty is bound by the statements he makes in open court while under oath and he may not later assert grounds for withdrawing the plea which contradict the statements he made at his plea colloquy." Pollard , 832 A.2d at 523 (citation omitted). "Our law presumes that a defendant who enters a guilty plea was aware of what he was doing. He bears the burden of proving otherwise." Commonwealth v. Yeomans , 24 A.3d 1044, 1047 (Pa.Super. 2011) (citing Pollard , supra ).
"[W]here the record clearly demonstrates that a guilty plea colloquy was conducted, during which it became evident that the defendant understood the nature of the charges against him, the voluntariness of the plea is established." Commonwealth v. McCauley , 797 A.2d 920, 922 (Pa.Super. 2001).
Relatedly, the test for determining competence to enter a plea is whether the defendant "had the opportunity at the appropriate time to consult with counsel, understand counsel's advice and information and understand the nature of the pending criminal proceedings against him." Commonwealth v. Smith , 469 A.2d 1104, 1107 (Pa.Super. 1983) (citing Commonwealth v. Scott , 414 A.2d 388 (Pa.Super. 1979), and Commonwealth v. Marshall , 318 A.2d 724 (Pa. 1974)). Since the determination of competency is a matter for the sound discretion of the lower court, we may not disturb that finding absent a clear abuse of that discretion. Commonwealth v. Frey , 904 A.2d 866, 872 (Pa. 2006).
The 167-page Notes of Testimony of Appellant's guilty plea colloquy belie the portrayal of an incompetent defendant struggling to communicate with counsel and understand the nature of criminal proceedings against her. In fact, throughout the lengthy colloquy, Appellant responded clearly and appropriately to the many questions put to her. While most of her responses consisted of short answers either in the affirmative or in negative, she provided them in a manner reflecting discernment and understanding of the questions. For example:
THE COURT: [As to the written guilty plea colloquy] So it looks like your printing and both you and Mr. Draudt [defense counsel] signed it; is that true?
APPELLANT: Yes.
THE COURT: And did you sign it of your own free will?
APPELLANT: Yes.
THE COURT: Did anyone force you or threaten you to sign it?
APPELLANT: No.
THE COURT: Any questions for me about this form?
APPELLANT: No, sir.
. . .
THE COURT: You've had some mental health treatment including you've been institutionalized for at least one occasion for a short period of time; is that right?
APPELLANT: Yes.
THE COURT: And you've been on medication for a period of time off and on; is that right?
APPELLANT: Yes.
THE COURT: And are you on medication right now?
APPELLANT: Yes.
THE COURT: Are you taking that in the dosage and manner that the doctors and professionals have prescribed it to you in [sic]?
APPELLANT: Yes.
THE COURT: ...[Y]ou're taking it when you're given it?
APPELLANT: Yes.
THE COURT: You're not cheeking it or not taking it or spitting it out or anything?
APPELLANT: No.
THE COURT: And you have been taking that regularly throughout your stay at the jail?
APPELLANT: Most of the time.
THE COURT: Okay. Over the last month or so, have you been taking it regularly?
APPELLANT: Yes.
. . .
THE COURT: Is the medication helping you?
APPELLANT: Yes.
THE COURT: Okay. Is the medication affecting your ability to understand me at all here today?
APPELLANT: No.
THE COURT: Are you currently under the influence of alcohol?
APPELLANT: No.
THE COURT: Drugs?
APPELLANT: No.
THE COURT: Controlled substances, other than the medication we've talked about?
APPELLANT: No, sir.
THE COURT: [Is] anything that you're aware of today having an impact on your ability to understand me?
APPELLANT: No.
...
THE COURT: Do you believe you are competent?
APPELLANT: Yes.
THE COURT: You understand all of the things we've talked about?
APPELLANT: Yes.
THE COURT: You understand your defenses, the rights you have to proceed to trial; you understand Mr. Draudt's role; you
understand Mr. Schultz's role; you understand my role; the various court staff's roles. Do you understand all of those things?
APPELLANT: Yes.
THE COURT: And do you believe you have been able to assist Mr. Draudt in his representation of you over the months that have been leading up to today?
APPELLANT: Ninety percent of the time.
THE COURT: Okay. So there have been some tough days maybe where you weren't feeling your best or you were a little down in the dumps or a lot down in the dumps, maybe or medication wise or mental health wise or, maybe, it's medically wise, you weren't able to give the information that you wanted. But for the majority of that time, you have been able to provide and assist in your own defense; is that true?
APPELLANT: Yes.
THE COURT: And especially, let's say, the last 30 to 60 days, have you been able to assist in your own defense?
APPELLANT: Yes.
THE COURT: ... [Y]our [sic] decision to enter the plea today has nothing to do with the fact that you've had some times where you weren't able to help. You're decision to enter the plea today is based upon the evidence and what you believe the evidence will show; is that true?
APPELLANT: Yes.
. . .
THE COURT: The printing [on the written guilty plea colloquy] is all yours. The part that's filled in by Mr. Draudt is the punishments and we'll talk a lot about the punishment in a little while, but you've signed that as well. You understood and read what he filled in?
APPELLANT: Yes.
THE COURT: And he filled that in prior to you signing the form?N.T. at 10, 12-14, 16-17, 18-19, 113.
APPELLANT: Yes, we talked about it, that's why it is separate.
THE COURT: I bet you did. Okay. Any questions for me about that form?
APPELLANT: No, sir.
THE COURT: Okay, [I have discussed with defense counsel a recent Pennsylvania Supreme Court case of relevance] and directed or indicated he should look at the case. I assume that you've done that; is that true?
DEFENSE COUNSEL: Yes, sir.
THE COURT: And have you gone over that with Ms. Barber?
DEFENSE COUNSEL: Yes.
THE COURT: Okay. [It] is a complicated case. I'm not going to go through it now and bore everybody -
APPELLANT: I've read it.
THE COURT: --with it, but you understand what it means?
APPELLANT: Yes.
. . .
THE COURT: The defendant is alleged, you're the defendant here, you're alleged to have on or about May 24, 2012 with malice, premeditation with specific intent to kill, kill Brandy Stevens. Do you understand that?
APPELLANT: No, it was on May 17.
THE COURT: Okay. You're right. It was on May 17.
Appellant also answered the Commonwealth's open-ended questions pertaining to the facts underlying the charges against her. Again, Appellant showed no sign of incompetence in this phase of the colloquy, as she clearly described the nature of her relationship with the co-defendant and gave a detailed account of relevant events occurring before, during, and after their brutal murder of the victim. N.T. at 118-161.
At the conclusion of the colloquy, Appellant pleaded guilty to murder in the first degree. N.T. at 162. She denied that either coercion or undisclosed promises induced her plea. N.T. at 163. She expressed satisfaction with plea counsel's assistance and denied he had failed to keep her informed or to carry out her requests. Id.
Appellant argues the PCRA court erroneously dismissed as incredible her PCRA testimony that she was mentally incapable at her plea colloquy of reliably claiming adherence to her medication regimen, comprehension of the proceeding and its consequences, and satisfaction with plea counsel's assistance. Appellant's brief, at 8-10; 11-14. Under governing standards set forth above, however, it was Appellant's burden to prove at the PCRA hearing that she was not, in fact, competent during her plea colloquy despite every appearance indicating otherwise. See Pollard , supra.
Appellant's self-conflicting PCRA testimony failed to meet this burden, as she claimed at one instance an incapacity to understand the plea proceedings only to claim later that she repeatedly found it necessary during the time leading up to her plea to apprise plea counsel on relevant decisional law and procedures. N.T. 10/26/17, at 44. Viewing this contradictory PCRA testimony in light of both Appellant's plea colloquy—in which she presents as alert, responsive, communicative, and consistent in her narrative—and plea counsel's PCRA testimony describing the process by which Appellant voluntarily decided to plead guilty, the PCRA court rejected the notion that mental incompetence tainted Appellant's guilty plea. As we agree there is no arguable merit to Appellant's claim of incompetence, we discern no error or abuse of discretion in the PCRA court's decision.
Next, Appellant alleges plea counsel ineffectively induced her to enter an unintelligent plea, as her mental incompetence caused by her refusal to take prescribed psychiatric medications was abundantly clear. In order to establish eligibility for PCRA relief, a petitioner must prove by a preponderance of the evidence that the conviction resulted from "[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." 42 Pa.C.S. § 9543(a)(2)(ii). "[C]ounsel is presumed to be effective, and the petitioner bears the burden of proving to the contrary." Commonwealth v. Brown , ___ A.3d ___, 2018 WL 5046812, at *12 (Pa. filed Oct. 17, 2018).
The PCRA will provide relief to an appellant if ineffective assistance of counsel caused him or her to enter an involuntary plea of guilt. Commonwealth v. Lynch , 820 A.2d 728 (Pa.Super. 2003). We conduct our review of such a claim in accordance with 42 Pa.C.S. § 9543(a)(2)(ii). Lynch , 820 A.2d at 732. "The voluntariness of [the] plea depends on whether counsel's advice was within the range of competence demanded of attorneys in criminal cases." Id. at 733 (quoting Commonwealth v. Hickman , 799 A.2d 136 (Pa.Super. 2002)).
It is well-established that counsel is presumed to have provided effective representation unless the PCRA petitioner pleads and proves all of the following: (1) the underlying legal claim is of arguable merit; (2) counsel's action or inaction lacked any objectively reasonable basis designed to effectuate his client's interest; and (3) prejudice, to the effect that there was a reasonable probability of a different outcome if not for counsel's error. Commonwealth v. Johnson , 179 A.3d 1105, 1114 (Pa.Super. 2018) (citations 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).
Appellant's charge of counsel's ineffective inducement of her plea centers on her claimed mental incompetence at the time. Because we have rejected Appellant's underlying claim of mental incompetence as meritless, she many not prevail on her ineffectiveness claim.
In Appellant's final issue, she contends the PCRA court erred in denying her request to present the testimony of a psychiatrist regarding Appellant's mental status at the time she entered her guilty plea. The admissibility of evidence is vested in the sound discretion of the hearing court and an appellate court may reverse only where there is an abuse of that discretion. Commonwealth v. Henry , 706 A.2d 313, 319 (Pa. 1997). An abuse of discretion not found based on mere error of judgment, but rather where ruling is manifestly unreasonable or result of partiality, prejudice, bias, or ill-will. Commonwealth v. Treiber , 121 A.3d 435, 476 (Pa. 2015).
Here, the record shows Appellant mischaracterizes the PCRA court's pre-hearing order. The court did not preclude the possibility of considering the psychiatrist's opinion, it only declared it premature to permit the opinion on Appellant's competence at the time of her plea. In that vein, the court "reserve[ed] the right after hearing from other witnesses and argument to determine whether an additional hearing date is required to allow the petitioner to present a psychiatrist." Order, 11/30/15, at 1. The court then placed the onus upon Appellant to resubmit her request for the admission of such expert opinion:
Again the court does not hold that it will not permit the psychiatrist to testify, but rather the reports that have been authored and are in the file do not appear to provide an appropriate foundation in light of the new information and, therefore, the court directs that the psychiatrist may not testify at the time of the original PCRA hearing and that in the event that counsel for the petitioner believes thereafter that psychiatric testimony is appropriate, that the reports upon which he is relying to suggest that that testimony is admissible be provided to the Commonwealth and the court in advance so that appropriate determinations can be made as to whether there are issues to be addressed on these questions.Id. at 2 (emphasis added).
It appears that Appellant never availed herself of the court's invitation to petition the court after the PCRA hearing if she still believed it appropriate to admit the psychiatrist's opinion testimony concerning her competence at the plea hearing. Accordingly, we discern no factual basis to her claim that the PCRA court precluded her from introducing the psychiatrist's opinion.
For the foregoing reasons, as well as for the reasons expressed in the cogent and comprehensive opinion of the Honorable Mark D. Stevens, see PCRA Court Opinion, 5/7/18, at 1-11, which we adopt as our own, we affirm the PCRA order.
The parties shall attach a copy of the PCRA court's February 12, 2018, opinion to this memorandum in the event of further proceedings.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 12/27/2018
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