Opinion
1778 EDA 2021
04-05-2022
COMMONWEALTH OF PENNSYLVANIA v. WILLIAM LEWIS Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order Entered August 10, 2021 In the Court of Common Pleas of Chester County Criminal Division at No(s): CP-15-CR-0001072-2000
BEFORE: OLSON, J., KING, J., and McCAFFERY, J.
MEMORANDUM
McCAFFERY, J.
William Lewis (Appellant) appeals from the order entered on August 10, 2021, in the Court of Common Pleas of Chester County, denying his petition for collateral relief filed under the Post-Conviction Relief Act (PCRA).Appellant seeks relief from the judgment of sentence of 28 1/2 to 70 years' incarceration, imposed on January 20, 2016, after a jury convicted him of 12 counts of robbery and related crimes. On appeal, Appellant contends the PCRA court erred and abused its discretion in finding trial counsel was not ineffective for failing to properly advise Appellant on the impact of his prior record score (PRS) at sentencing, the applicable sentencing guidelines, and the statutory maximum sentences during plea negotiations. For the reasons below, we affirm.
The facts underlying Appellant's convictions are as follows. On January 9, 2000, Appellant and four co-conspirators committed an armed robbery of a Genuardi's Supermarket in East Goshen Township, Chester County, Pennsylvania. At 10:37 p.m., four of the men, including Appellant, entered the store dressed like "terrorists." PCRA Ct. Op., 10/14/21, at 5. The fifth co-conspirator was an employee of that supermarket and was working that night. Id. "During the commission of the robbery, multiple victims were taken at gunpoint, bound, gagged, and threatened with death." Id. at 5 n.3. Appellant personally held a gun to the store manager's head to force her to open the office safe. See Order, 8/10/21, at 2 n.2. The gunmen then absconded with $28, 146.20 from the office safe. See PCRA Op. Ct. at 5. During the robbery, three victims were injured, one of whom was hospitalized for head trauma. Id.
Thereafter, Appellant fled to North Carolina, where he lived under a false identity for 14 years. Id. On July 24, 2014, Appellant was arrested and then extradited to Chester County.
The matter proceeded to jury trial. On October 5, 2015, the jury convicted Appellant of 12 counts each of robbery (threaten or intentionally put in fear of serious bodily injury), robbery (inflict or intentionally put in fear of serious bodily injury), simple assault (physical menace), terroristic threats, unlawful restraint (risk of injury), unlawful restraint (involuntary servitude); two counts of simple assault (causing or attempting to cause bodily injury); and one count each of conspiracy to commit both above types of robbery, theft by unlawful taking, and receiving stolen property. PCRA Ct. Op. at 1-2. Appellant was also acquitted of one count of carrying a firearm without a license and one count of possessing an instrument of crime. Id.
Samuel C. Stretton, Esq., represented Appellant at trial and sentencing. Id.
See 18 Pa.C.S. §§ 3701(a)(1)(ii), 3701 (a)(1)(iv), 2701(a)(3), 2706(a), 2902(1), 2902(2), 2701(a)(1), 903, 3921(a), and 2925(a), respectively.
On January 20, 2016, the court sentenced Appellant to an aggregate term of 29 1/2 to 75 years' imprisonment. See PCRA Ct. Op at 2.
On January 29, 2016, Appellant timely filed a post sentence motion, which was granted in part and denied in part on October 12, 2016. The trial court agreed with Appellant that one of the theft offenses should have merged with one of the robbery counts for sentencing purposes. Consequently, on November 10, 2016, the court vacated the one-to-five-year sentence related to the theft crime. All other terms and conditions of the original sentence remained unchanged. As such, Appellant's aggregate sentence was now 28 1/2 to 70 years' incarceration.
Appellant thereafter filed a direct appeal on December 8, 2016. This Court affirmed the judgment of sentence on December 19, 2017. See Commonwealth v. Lewis, 256 A.3d 38, *10 (unpub. memo) (Pa. Super. May 18, 2021). Appellant did not file a petition for allowance of appeal with the Supreme Court of Pennsylvania.
On August 6, 2018, Appellant timely filed a pro se PCRA petition. C. Curtis Norcini, Esq., was originally appointed to represent him. Due to a conflict of interest, Joshua H. Camson, Esq., replaced Attorney Norcini by court order on October 19, 2018. Attorney Camson both filed an amended PCRA petition on April 29, 2019, and a petition to withdraw as counsel, which was subsequently granted. Joseph C. Flanagan Jr., Esq., was then appointed. The Commonwealth filed an answer to the amended PCRA petition on August 8, 2019. Attorney Flanagan subsequently filed a motion to withdraw, which was granted. He was replaced by Phillip A. Simon, Esq., via court appointment on October 2, 2019.
Following multiple filing extensions, on May 19, 2020, Attorney Simon adopted the amended PCRA petition as previously filed by Attorney Camson. On July 20, 2020, the PCRA issued a Pa.R.Crim.P. 907 notice, stating that Appellant's issues lacked merit. Appellant did not file a response. The PCRA court then dismissed the petition without a hearing on August 25, 2020. Appellant filed a timely, counseled appeal to this Court.
On May 18, 2021, a panel of this Court affirmed in part and vacated in part the PCRA court's August 25 order. The panel remanded the matter for an evidentiary hearing to address the question of whether trial counsel was ineffective for "failing to advise [Appellant] on the impact of his prior record score at sentencing, the applicable sentencing guidelines, and the statutory maximum sentences." See Commonwealth v. Lewis, 1724 EDA 2020 (unpub. memo) (Pa. Super. May 18, 2021). The PCRA court held an evidentiary hearing on July 23, 2021.
The PCRA court summarized the testimony from that hearing as follows:
[Appellant] testified that he was offered a plea bargain by the Commonwealth on the first day of trial of an aggregated sentence of 13 to 30 years, and on the second day of trial, a modified plea bargain of an aggregated sentence of 15 to 35 years. Trial counsel, Sam Stretton, confirmed that he forwarded to [Appellant] Commonwealth's Exhibits C1-C2 and C3, being copies of email correspondence between counsel for the Commonwealth and [Appellant's] trial attorney. Mr. Stretton testified that it is his practice that he received these plea offers from the Commonwealth and would have forwarded them to his client prior to trial. [The Commonwealth also offered an initial plea prior to trial, which] was for an aggregated 111/2 to 23 years plus [three] years of consecutive probation. [Appellant] confirmed that he was aware of the plea agreement pending before he initially met with Mr. Stretton and requested that Mr. Stretton attempt to get the plea offer down to 10 years. [Appellant] also confirmed that despite not going over [Appellant's] prior record score or the offense gravity score for the 12 felony robbery charges as well as conspiracy to commit robbery and the application of a deadly weapon enhancement, Mr. Stretton told him that he would receive "a lot of time", just as his co-defendant, Kevin Smith, received after being convicted after trial. Mr. Stretton testified he told [Appellant] that Kevin Smith received a minimum of 22 or 23 years and that he told [Appellant] that if he were to go to trial, and was convicted, he would not get less
than that amount. The sentence that co-defendant Kevin Smith received is contained in Exhibit C-1. Mr. Stretton testified, and [Appellant] confirmed, that [Appellant] protested his innocence, that he did not commit these crimes and provided alibi witnesses. Mr. Stretton testified that if a client affirms his innocence that he does not push a client to take a plea.PCRA Order, 8/10/21, at 4-5 n.2. On August 10, 2021, the PCRA court entered an order, denying Appellant relief because it found counsel was not ineffective. This appeal followed.
On September 21, 2021, Appellant timely complied with the PCRA court's directive to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). The court issued a Pa.R.A.P. 1925(a) opinion on October 14, 2021.
Appellant's sole issue on appeal is as follows:
The PCRA court erred and abused its discretion in holding trial counsel was not ineffective for failing to advise [Appellant] on the impact of his PRS at sentencing, the applicable sentencing guidelines, and the statutory maximum sentences.Appellant's Brief at 4.
Appellant asserts the PCRA court abused its discretion by denying his claim that "trial counsel was ineffective for failing to advise [him] of his exposure related penalties." Appellant's Brief at 12. Specifically, he contends that "counsel failed to advise him on the impact of his PRS at sentencing, the applicable sentencing guidelines, and the statutory minimum and maximums applicable to the case." Id. at 13. He states that "the Commonwealth made two different pleas offers, and [he] would have accepted the initial offer but for trial counsel's ineffectiveness." Id.
Our standard of review concerning the denial of PCRA petitions is well established:
Our standard of review in a PCRA appeal requires us to determine whether the PCRA court's findings of fact are supported by the record, and whether its conclusions of law are free from legal error. The scope of our review is limited to the findings of the PCRA court and the evidence of record, which we view in the light most favorable to the party who prevailed before that court. [] The PCRA court's factual findings and credibility determinations, when supported by the record, are binding upon this Court. However, we review the PCRA court's legal conclusions de novo.Commonwealth v. Small, 238 A.3d 1267, 1280 (Pa. 2020) (citations omitted).
To succeed on appeal based on a claim of ineffective assistance of counsel, an appellant must show by a preponderance of the evidence that "in the circumstances of the particular case, [counsel's actions or omissions] so undermined the truth-determining process that no reasonable adjudication of guilt or innocence could have taken place." 42 Pa.C.S. § 9543(a)(2)(ii). Counsel is presumed to have been effective, and the burden to disprove that presumption is on the petitioner. Commonwealth v. Cooper, 941 A.2d 655, 664 (Pa. 2007). The petitioner must prove the following three factors:
(1) the underlying substantive claim has arguable merit; (2) counsel did not have a reasonable basis for his or her act or omission; and (3) the petitioner suffered prejudice as a result of counsel's deficient performance, "that is, a reasonable probability that but for counsel's act or omission, the outcome of the proceeding would have been different."Commonwealth v. Wholaver, 177 A.3d 136, 144 (Pa. 2018) (citation omitted). Failing to satisfy any of the prongs is fatal to a petitioner's claim. Cooper, 941 A.2d at 664. Further, a petitioner must prove that an unchosen course of action offered a substantially greater probability of success than the course counsel did pursue. Commonwealth v. Johnson, 139 A.3d 1257, 1272 (Pa. 2016).
Additionally, because Appellant is challenging trial counsel's purported ineffectiveness, which resulted in his rejection of the guilty plea offers, we also apply the general principal that "counsel has a duty to communicate plea bargains to his client as well as to explain the advantages and disadvantages of the offer." Commonwealth v. Marinez, 777 A.2d 1121, 1124 (Pa. Super. 2011). In other words, counsel has a duty to explain to the defendant "the relative merits of the offer compared to the defendant's chances at trial." Commonwealth v. Napper, 385 A.2d 521, 524 (Pa. Super. 1978). "Failure to do so may be considered ineffective assistance of counsel if the defendant is sentenced to a longer prison term than the term he would have accepted under the plea bargain." Marinez, 777 A.2d at 1124.
Moreover,
[i]n Lafler [v. Cooper, 566 U.S. 156 (2012)], . . . the Supreme Court of the United States elucidated the showing necessary to satisfy [the] prejudice prong . . . in cases where counsel's ineffectiveness causes a defendant to reject a plea offer. The Supreme Court concluded that Cooper's counsel had been ineffective, and explained that a post-conviction petitioner seeking relief on the basis that ineffective assistance of counsel caused him or her to reject a guilty plea must demonstrate the following circumstance:
* * *
[B]ut for the ineffective advice of counsel there is a reasonable probability that the plea offer would have been presented to the court (i.e. that the defendant would have accepted the plea and the prosecution would not have withdrawn it in light of intervening circumstances), that the court would have accepted its terms, and that the conviction or sentence, or both, under the offer's terms would have been less severe than under judgment and sentence that in fact were imposed.Commonwealth v. Steckley, 128 A.3d 826, 832 (Pa. Super. 2015) (some citations omitted).
Here, Appellant alleges there was "no reasonable basis for trial counsel to [have] failed to explain Appellant's sentencing exposure, especially given the serious nature of the charges and the total number of non-merging felony counts involved in the case." Appellant's Brief at 21. Because counsel purportedly omitted these sentencing nuances during plea negotiations, Appellant avers he was incapable of knowingly, voluntarily, and intelligently refusing the plea offers. Id. at 17-18. Appellant asserts that trial counsel's ineffective advice was the only reason he maintained his insistence of innocence. Id. at 17. To support his assertions, Appellant states that he and trial counsel only communicated "one or two times prior to trial." Id. at 18. With respect to those communications, Appellant asserts trial counsel only ever told him that could get a "lot of time" and called Appellant's defense "strong." Id. at 17. Appellant also contends that trial counsel never informed him of the first of two plea offers, and Appellant only learned of it when the judge asked for his decision on the first day of trial. Id. at 19.
Addressing the factors set forth in Steckley, supra, Appellant contends the PCRA court improperly found trial counsel to have been effective based on the following:
First[, ] there is a reasonable probability that [] Appellant would have accepted the plea offer having known his exposure and penalty. Second[, ] that the court would have accepted its terms. Third, that the conviction or sentence, or both, under the offer's terms would have been less severe than under the judgment and sentence that in fact were imposed.Id. at 21. Lastly, Appellant argues he "was prejudiced due to trial counsel's failure to properly advise resulting in the sentence of 29.5-75 years' incarceration." Id. at 22.
A review of the record reveals the following. At the evidentiary hearing Appellant and trial counsel gave contradictory recitations of their plea discussions. Appellant testified that he received a letter from trial counsel containing an available plea offer before they had met in person. See N.T. at 12. Appellant also stated that when he met with counsel prior to trial, counsel never discussed the plea offer, or proffered any advice or details about that plea offer, sentencing guidelines, or Appellant's potential exposure pursuant to an offense gravity score or prior record score. See id. at 12-19. Appellant then testified that he first learned about the subsequent plea offers from the trial court on the first two days of trial, not from his counsel. See id. at 20-21. He stated counsel never discussed these offers. See id. at 21-23.
When asked about the fact that he testified at trial that he was innocent, Appellant replied in the affirmative and said that he was testifying truthfully. See id. at 24. Nevertheless, Appellant stated that he would have been willing "to come into court" and say that he had committed the crimes because at the time, he did not know he "could receive so much time." Id. at 25-26. However, Appellant also acknowledged that before his own trial began, his trial counsel had told him that the same trial court had sentenced his co-defendant, Kevin Smith, to 23 years' imprisonment. See id. at 26.
Conversely, trial counsel testified that he discussed the strength of Appellant's case and the advantages and disadvantages of the plea offers to Appellant. N.T. at 36-39. Counsel specifically explained that he had "strongly recommended [Appellant] consider" the 13-year plea offer because if convicted, he would receive a sentence similar to co-defendant Smith's, if not longer. Id. at 36, 39. Moreover, counsel also described the trial court's inclination to consider whether a person has accepted responsibility as a favorable sentencing factor. Id. at 36. Counsel testified he "left [the plea offers] to [Appellant's] judgment," that Appellant had "absolutely" maintained his innocence and "was adamant" about proceeding to trial. Id. at 38-39. Counsel also testified that if a client asserts his innocence, he will not tell the client to plead guilty. See id. at 39. Lastly, counsel could not recall if he specifically discussed "guideline ranges and things of that nature," but that he "probably just discussed where it would end up based on the other sentences." Id.
See also N.T. at 48-49 (counsel further testifying: "I always told him when those offers were made, and we would talk often when we were sitting next to each other. . . . And we would discuss the offers and where it's gone. I said you have a chance of winning, but you're playing for big odds, because remember the codefendant, 20 or 23 years, whatever it was.").
In addressing Appellant's claim, the PCRA court opined:
The Court credits Mr. Stretton's testimony and although he did not discuss the specifics of [Appellant's] prior record score or the offense gravity score and resulting sentencing guidelines for the multitude of felony 1 charges, he did tell [Appellant] that he would not receive a sentence of less than 23 years (as received by co-defendant Kevin Smith) and that the outstanding offer of a minimum of 13 years was a "good deal." [Appellant] never testified that he would have accepted the plea offers because, as he has steadfastly maintained, he was innocent of all charges.In addition, [Appellant] has not established that the Court would have accepted the terms of any plea bargain because the evidence at trial showed that [Appellant] was the individual who placed a handgun to the head of the store manager and forced her to open the safe. The sentence of co-Defendant Kevin Smith was imposed without that Defendant's similar terrifying use of a handgun. Mr. Stretton's advice to [Appellant] was indeed accurate. [Appellant] ultimately was sentenced to an aggregated sentence of 28 1/2 to 70 years imprisonment.PCRA Order at 2 n.2.
The court stated that Appellant never testified that he would have accepted the plea offers. Our review reveals that at the evidentiary hearing, Appellant did testify that he would have pleaded guilty. See N.T. at 25-26. Nevertheless, this misstatement regarding one fact does not affect the outcome of the appeal.
Based on the PCRA court's analysis, it is evident the court credited trial counsel's strategy and advice as reasonable. When "the PCRA court's determination of credibility is supported by the record, we will not disturb it on appeal." Marinez, 777 A.2d at 1124 (citation omitted). Here, it is clear the record supports the PCRA court's determinations. While counsel did not recall going into specifics, he did provide Appellant with a general idea of the aggregate sentence, which was not far off from what he received. Moreover, Appellant presents no case law to support his contention that when a defendant proclaims his innocence, counsel is ineffective for failing to advise him to take a plea offer and admit guilt. Because we discern no abuse as to the PCRA court's determination that counsel did have a reasonable basis for his actions, no relief is due. See Wholaver, supra.
Additionally, we note Appellant baldly asserts here that the "[PCRA] court would have accepted [the plea offer] terms." Appellant's Brief at 21. As the PCRA court acknowledged, Appellant did not demonstrate the second prong of the Steckley test because he did not explain why the court would have accepted the terms of either plea bargain in light of the fact that it was Appellant who had placed a handgun to the head of the store manager and forced her to open the safe. See PCRA Order at 2 n.2. Therefore, Appellant has not met the burden of establishing the prejudice prong of the ineffectiveness test. See Steckley, 128 A.3d at 832.
Our review of the PCRA hearing testimony supports the court's conclusions that trial counsel's advice to Appellant was adequate. Accordingly, Appellant's sole issue on appeal fails, and we affirm the PCRA court's order denying Appellant relief.
Order affirmed.
Judgment Entered.