Opinion
J-S17002-16 No. 1756 WDA 2014
04-04-2016
COMMONWEALTH OF PENNSYLVANIA Appellee v. GEORGE F. ELY, JR. Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order July 17, 2007
In the Court of Common Pleas of Washington County
Criminal Division at No(s): CP-63-CR-0002786-1996 BEFORE: GANTMAN, P.J., SHOGAN, J., and FITZGERALD, J. MEMORANDUM BY GANTMAN, P.J.:
Former Justice specially assigned to the Superior Court.
Appellant, George F. Ely, Jr., appeals nunc pro tunc from the order entered in the Washington County Court of Common Pleas, dismissing his first petition under the Post Conviction Relief Act ("PCRA"). We affirm.
The PCRA court's opinion fully sets forth the relevant facts and procedural history of this appeal. Therefore, we will only briefly summarize them here. Appellant was involved in a contract killing in 1985, where the victim sustained a single gunshot to the head. After an eleven-year investigation, state police arrested Appellant, who was then serving a sentence in federal prison.
On September 26, 1997, [Appellant] entered an open general plea to criminal homicide and criminal conspiracy to commit homicide for his participation in a 1985 contract killing. In exchange for his full cooperation concerning his and other conspirators' involvement, the Commonwealth agreed not to seek the death penalty. The court conducted a full and extensive oral colloquy, after which the court found a factual basis for the plea and that [Appellant] knowingly, intelligently and voluntarily entered said plea.2 [Appellant] also waived his right under Pa.R.Crim.P. 704(A)(1) to be sentenced within ninety days so that he could comply with his plea agreement and offer testimony against his known co-conspirator, John Dino Martin. Martin's case did not conclude until July 29, 2003, at which time Martin was sentenced to 5-10 years' imprisonment for criminal conspiracy to commit homicide on a negotiated plea bargain. On August 1, 2003, the court issued an order scheduling [Appellant's] degree of guilt hearing for September 10-11, 2003.
2 The record included the notes of testimony from the guilty plea colloquy, but no written guilty plea colloquy form.
On August 28, 2003, [Appellant] filed a motion to withdraw his guilty plea and a motion to dismiss the charges for violation of Rule 704. On September 10, 2003, both motions were considered and denied. At the degree of guilt hearing on September 11, 2003, [Appellant] was found guilty of murder in the first degree and criminal conspiracy to commit homicide, and sentenced to life in prison.3 A timely post-sentence motion was filed and denied....
Commonwealth v. Ely , No. 718 WDA 2004, unpublished memorandum at 1-2 (Pa.Super. filed July 28, 2005). On July 28, 2005, this Court affirmed the judgment of sentence; our Supreme Court denied Appellant's petition for allowance of appeal on March 8, 2006. See Commonwealth v. Ely , 587 Pa. 683, 897 A.2d 451 (2006).3 This includes a sentence of 5-10 years' imprisonment for criminal conspiracy to commit homicide, to run concurrently.
On June 30, 2006, Appellant timely filed a pro se PCRA petition. The court appointed counsel, who filed an amended petition on November 27, 2006, raising multiple claims of plea counsel's ineffectiveness. On June 15, 2007, the PCRA court issued notice of its intent to dismiss the petition without a hearing, pursuant to Pa.R.Crim.P. 907. Appellant did not respond to the Rule 907 notice, and the court denied PCRA relief on July 17, 2007. Counsel filed a praecipe to withdraw as counsel on September 14, 2007.
On November 24, 2010, Appellant filed a "motion for re-sentencing nunc pro tunc." Over one year later, the court appointed counsel who filed a second PCRA petition on December 14, 2012, requesting reinstatement of Appellant's appellate rights related to his first PCRA petition. On October 3, 2014, the court reinstated Appellant's right to appeal nunc pro tunc the denial of his first PCRA petition. The court also appointed appellate counsel. Appellant timely filed a notice of appeal on October 22, 2014. On October 27, 2014, the court ordered Appellant to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant timely complied on November 3, 2014.
Appellant raises five issues for our review:
WHETHER THE [PCRA] COURT ERRED AND ABUSED ITS DISCRETION IN DENYING APPELLANT'S CLAIM THAT [PLEA] COUNSEL WAS INEFFECTIVE FOR FAILURE TO
INVESTIGATE AND PRESERVE EVIDENCE IN THE CASE AGAINST APPELLANT?(Appellant's Brief at 4).
WHETHER THE [PCRA] COURT ERRED AND ABUSED ITS DISCRETION IN DENYING APPELLANT'S CLAIM THAT [PLEA] COUNSEL WAS INEFFECTIVE FOR FAILING TO REQUEST AND OBTAIN DISCOVERY MATERIAL?
WHETHER THE [PCRA] COURT ERRED AND ABUSED ITS DISCRETION IN DENYING APPELLANT'S CLAIM THAT [PLEA] COUNSEL WAS INEFFECTIVE FOR FAILING TO OBJECT TO THE ELEVEN YEAR LAPSE OF TIME BETWEEN THE DATE OF THE CRIME AND APPELLANT'S ARREST?
WHETHER THE [PCRA] COURT ERRED AND ABUSED ITS DISCRETION IN DENYING APPELLANT'S CLAIM THAT [PLEA] COUNSEL WAS INEFFECTIVE BECAUSE HE PROVIDED ERRONEOUS ADVICE AS TO THE DURATION OF THE SENTENCE AND THAT APPELLANT'S PLEA OF GUILTY WAS UNLAWFULLY INDUCED?
WHETHER THE [PCRA] COURT ERRED AND ABUSED ITS DISCRETION IN DENYING APPELLANT'S CLAIM THAT EXCULPATORY EVIDENCE EXISTED WHICH WAS UNAVAILABLE AT THE TIME OF THE PLEA AND/OR SENTENCING AND HAS SUBSEQUENTLY BECOME AVAILABLE AND WOULD HAVE CHANGED THE OUTCOME?
Our standard of review of the denial of a PCRA petition is limited to examining whether the evidence of record supports the court's determination and whether its decision is free of legal error. Commonwealth v. Lane , 81 A.3d 974 (Pa.Super. 2013), appeal denied, 625 Pa. 658, 92 A.3d 811 (2014). This Court grants great deference to the findings of the PCRA court if the record contains any support for those findings. Commonwealth v. Boyd , 923 A.2d 513 (Pa.Super. 2007), appeal denied, 593 Pa. 754, 932 A.2d 74 (2007). A petitioner is not entitled to a PCRA hearing as a matter of right; the PCRA court can decline to hold a hearing if there is no genuine issue concerning any material fact, the petitioner is not entitled to PCRA relief, and no purpose would be served by any further proceedings. See Commonwealth v. Wah , 42 A.3d 335, 338 (Pa.Super. 2012) (citing Commonwealth v. Hardcastle , 549 Pa. 450, 701 A.2d 541, 543 (1997)); Pa.R.Crim.P. 907.
"The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the [proceeding] cannot be relied on having produced a just result." Strickland v. Washington , 466 U.S. 668, 686, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, ___ (1984). When asserting a claim of ineffective assistance of counsel, the petitioner is required to demonstrate that: (1) the underlying claim is of arguable merit; (2) counsel had no reasonable strategic basis for his action or inaction; and (3) but for the errors or omissions of counsel, there is a reasonable probability that the outcome of the proceedings would have been different. Commonwealth v. Kimball , 555 Pa. 299, 724 A.2d 326 (1999). Counsel is presumed effective, and the petitioner's failure to satisfy any prong of the ineffectiveness test will cause the claim to fail. Commonwealth v. Williams , 597 Pa. 109, 950 A.2d 294 (2008).
"The threshold inquiry in ineffectiveness claims is whether the issue/argument/tactic which counsel has foregone and which forms the basis for the assertion of ineffectiveness is of arguable merit...." Commonwealth v. Pierce , 537 Pa. 514, 524, 645 A.2d 189, 194 (1994). "Once this threshold is met we apply the 'reasonable basis' test to determine whether counsel's chosen course was designed to effectuate his client's interests." Id. at 524, 645 A.2d at 194-95. If there is no reasonable basis for counsel's action, we must move to the final point of analysis under Strickland/Pierce —prejudice. Kimball , supra. A petitioner raising an ineffectiveness claim is required to show counsel's ineffectiveness was of such magnitude that it "could have reasonably had an adverse effect on the outcome of the proceedings." Pierce , supra at 162, 527 A.2d at 977. In other words, there must be a reasonable probability that, but for counsel's error, the outcome of the proceedings would have been different. Commonwealth v. Cox , 581, Pa. 107, 125, 863 A.2d 536, 546 (2004). "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Commonwealth v. Chambers , 570 Pa. 3, 21-22, 807 A.2d 872, 883 (2002).
"A criminal defendant has the right to effective counsel during a plea process as well as during trial." Commonwealth v. Bedell , 954 A.2d 1209, 1212 (Pa.Super. 2008), appeal denied, 600 Pa. 742, 964 A.2d 893 (2009). To obtain relief on allegations of ineffectiveness in connection with a guilty plea, the defendant must show counsel's deficient performance caused the defendant to enter an unknowing, involuntary, or unintelligent plea. Commonwealth v. Allen , 557 Pa. 135, 144, 732 A.2d 582, 587 (1999). "A plea is knowing, intelligent and voluntary...if the defendant had an understanding of the nature of the charges against him, his right to a jury trial and the consequences of his plea." Commonwealth v. Flannigan , 578 Pa. 587, 625, 854 A.2d 489, 512 (2004). A reviewing court should consider the totality of the circumstances when assessing the voluntariness of the plea. Id. at 626, 854 A.2d at 513.
Significantly, however, claims of ineffective assistance of counsel are not self-proving. Commonwealth v. Jones , 571 Pa. 112, 127-28, 811 A.2d 994, 1003 (2002). Ineffective assistance of counsel claims must be pled with specificity, i.e., with enough facts to support the allegations; courts will not consider ineffectiveness of counsel claims in a vacuum. Commonwealth v. Thomas , 560 Pa. 249, 256, 744 A.2d 713, 716 (2000). A petitioner must identify facts and, if they do not appear of record, provide evidence proving the alleged facts to support an averment of counsel's ineffectiveness for failing to file an appeal (or in this case failing to withdraw a guilty plea); otherwise the claim lacks arguable merit. Commonwealth v. Collins , 546 Pa. 616, 622, 687 A.2d 1112, 1115 (1996). A PCRA evidentiary hearing is not meant to be a fishing expedition for any possible evidence that might support some bare assertion of ineffectiveness of counsel. Jones , supra at 128 n.8, 811 A.2d at 1003 n.8.
After a thorough review of the record, Appellant's brief, the applicable law, and the well-reasoned opinion of the Honorable Katherine B. Emery, we conclude Appellant's issues merit no relief. The PCRA court's opinion fully discusses and properly disposes of Appellant's issues on appeal. ( See PCRA Court Opinion, filed December 29, 2014, at 7-14) (finding: (1) Appellant's claim lacks particularity with regard to whom or what his counsel failed to investigate; Appellant's claim fails as undeveloped; moreover, Appellant cannot show how counsel's failure, if true, prejudiced Appellant; overwhelming evidence against Appellant includes his signed confession and subsequent 73-page guilty plea colloquy, as well as eyewitness testimony that linked Appellant to vehicle seen leaving crime scene, and testimony at preliminary hearing which indicated Appellant had knowledge of and admitted involvement in homicide; Appellant's claim that plea counsel failed to preserve evidence does not state what evidence counsel allegedly failed to preserve or how Appellant suffered prejudice; (2) Commonwealth provided discovery to plea counsel; Appellant failed to offer proof that Commonwealth withheld any evidence; Appellant's claim that counsel failed to request and obtain discovery material is undeveloped; (3) even if Appellant was prejudiced by lapse of time from crime to his arrest, Appellant's claim still fails because he failed to provide evidence to indicate misconduct by prosecution; at worst, eleven-year delay between commission of offense and Appellant's arrest is attributable to prosecutorial or investigative negligence, which is insufficient to establish claim of due process violation due to pre-arrest delay; underlying claim lacks merit, so Appellant's ineffective assistance claim also fails; (4) Appellant has offered no evidence to suggest plea counsel failed to inform Appellant that he could be sentenced to life imprisonment; Appellant's plea colloquy belies Appellant's claim, as court explicitly informed Appellant he could be sentenced to life imprisonment if convicted of first degree murder; Appellant's plea transcript refutes Appellant's claim that his plea was involuntary, unknowing, or unintelligent; Appellant advances only bald, unsupported allegations that his plea was unlawfully induced; Appellant's dissatisfaction with cohort's sentence is not fair and just reason to allow withdrawal of Appellant's guilty plea; (5) Appellant's "newly discovered exculpatory evidence" consists of preliminary hearing witness' guilty plea to charges of theft and tampering with records; witness' guilty plea occurred several years before she testified against Appellant; Appellant's evidence is neither new nor exculpatory, but merely impeachment evidence that was available to Appellant at time of his guilty plea). The record supports the PCRA court's decision; therefore, we see no reason to disturb it. Accordingly, we affirm on the basis of the PCRA court's opinion.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 4/4/2016
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