Commonwealth v. Davis

245 A.3d 1108 (Table)

COMMONWEALTH of Pennsylvania v. Maurice A. DAVIS, Jr., Appellant

No. 172 WDA 2020

Superior Court of Pennsylvania.

Filed December 29, 2020

MEMORANDUM BY MURRAY, J.:

Maurice A. Davis, Jr. (Appellant) appeals from the order denying his first petition filed pursuant to the Post Conviction Relief Act (PCRA). See 42 Pa.C.S.A. §§ 9541 - 9546. Appellant contends that his trial counsel was constitutionally ineffective in connection with plea negotiations. Upon review, we disagree and affirm.

In January 2014, while Appellant was caring for a 1½ year-old child, the child suffered serious injuries that were consistent with assaultive trauma. ¹ Appellant claimed the child fell down the stairs. However, in April 2014, the Commonwealth charged Appellant with two counts each of aggravated assault (AA) and simple assault (SA), and one count of endangering the welfare of children (EWOC). See 18 Pa.C.S.A. §§ 2702(a)(1), 2701(a)(1), 4304(a)(1). ²

Pertinently, the Commonwealth and Appellant engaged in pre-trial plea bargain negotiations. Appellant was represented by Jerome Kaharick, Esquire (trial counsel). At a pre-trial conference on September 28, 2015, the prosecutor stated that Appellant had been offered a particular plea bargain, which would remain valid for one day. See N.T., 9/28/15, at 5-6. The prosecutor also explained that if Appellant did not accept the deal, the Commonwealth would seek imposition of the statutory maximum, aggregate sentence of 20 to 40 years in prison. See id. at 6-7. The trial court conducted an oral colloquy of Appellant to determine whether he understood the terms and conditions of the plea offer. Id. at 8-9. The court detailed, inter alia , the potential sentence Appellant could face. Id. at 8. Appellant did not accept the plea deal prior to its expiration.

The case proceeded to a jury trial on October 5, 2015. Prior to jury selection, the parties discussed a second plea offer from the Commonwealth; they also detailed the potential sentences Appellant could face if he did not accept the offer. See N.T., 10/5/15, at 6-7. Appellant again rejected the offer and trial began, at the close of which the jury found Appellant guilty of all counts.

On November 3, 2015, the trial court initially sentenced Appellant, but soon discovered there had been an error in calculating Appellant's offense gravity score (OGS). Six days later, the trial court resentenced Appellant, using the correct OGS, to an aggregate term of 225 to 450 months in prison. ³ This Court affirmed the judgment of sentence in January 2017, after which the Supreme Court of Pennsylvania denied allowance of appeal. See Davis I , 160 A.3d 264, appeal denied , 169 A.3d 1079 (Pa. 2017).

On October 26, 2018, Appellant timely filed a first, counseled PCRA petition, asserting trial counsel was ineffective in connection with the plea negotiations and failing to adequately counsel Appellant. The PCRA court conducted two PCRA evidentiary hearings on the petition, where trial counsel and Appellant were questioned by Appellant's PCRA counsel and the Commonwealth. By order entered January 2, 2020, the PCRA court denied Appellant's petition. Appellant timely filed a notice of appeal, followed by a court-ordered Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal, and the PCRA court issued an opinion.

Appellant presents three issues for our review:

1. Did the PCRA court erred [ sic ] by concluding that trial counsel did not render ineffective assistance[?]

2. Did the PCRA court err by concluding that trial counsel's concern regarding the discoverability of the report of a defense consultant who [was] not called to testify at trial was valid?

3. Did the PCRA court err by using the standard and analysis for a claim of ineffectiveness for failure to call an expert witness at trial[?]

Appellant's Brief at 6.

We are mindful of our standard of review:

Appellate review of a PCRA court's dismissal of a PCRA petition is limited to the examination of whether the PCRA court's determination is supported by the record and free of legal error. The PCRA court's findings will not be disturbed unless there is no support for the findings in the certified record. This Court grants great deference to the findings of the PCRA court, and we will not disturb those findings merely because the record could support a contrary holding. In contrast, we review the PCRA court's legal conclusions de novo .

Commonwealth v. Maxwell , 232 A.3d 739, 744 (Pa. Super. 2020) ( en banc ) (citations and quotation marks omitted). Further, a "PCRA court's credibility findings are to be accorded great deference, and where supported by the record, such determinations are binding on a reviewing court." Commonwealth v. Williams , 141 A.3d 440, 452 (Pa. 2016).

In order for a PCRA petitioner to be entitled to relief on an ineffectiveness claim, he must establish:

(1) the underlying claim has arguable merit; (2) no reasonable basis existed for counsel's action or failure to act; and (3) he suffered prejudice as a result of counsel's error, with prejudice measured by whether there is a reasonable probability the result of the proceeding would have been different. Commonwealth v. Chmiel , 612 Pa. 333, 30 A.3d 1111, 1127 (Pa. 2011) (employing ineffective assistance of counsel test from Commonwealth v. Pierce , 515 Pa. 153, 527 A.2d 973, 975-76 (Pa. 1987) ). Counsel is presumed to have rendered effective assistance. Additionally, counsel cannot be deemed ineffective for failing to raise a meritless claim. Finally, because a PCRA petitioner must establish all the Pierce prongs to be entitled to relief, we are not required to analyze the elements of an ineffectiveness claim in any specific order; thus, if a claim fails under any required element, we may dismiss the claim on that basis.

Commonwealth v. Treiber , 121 A.3d 435, 445 (Pa. 2015) (some internal citations omitted).

Here, Appellant alleges that trial counsel was ineffective in connection with advice given during plea negotiations. Our Supreme Court has explained:

Allegations of ineffectiveness in connection with the entry of a guilty plea will serve as a basis for relief only if the ineffectiveness caused [the defendant] to enter an involuntary or unknowing plea. In determining whether a guilty plea was entered knowingly and intelligently, a reviewing court must review all of the circumstances surrounding the entry of that plea.

Commonwealth v. Allen , 732 A.2d 582, 587 (Pa. 1999) (citations omitted). Further, a PCRA petitioner seeking relief on the basis that ineffective assistance of counsel caused him to reject a guilty plea must demonstrate:

[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 the judgment and sentence that in fact were imposed.

Commonwealth v. Steckley , 128 A.3d 826, 832 (Pa. Super. 2015) (quoting Lafler v. Cooper , 566 U.S. 156, 164 (2012) ).

In his first issue, Appellant argues that trial counsel rendered ineffective assistance by failing to apprise Appellant of the potential sentences he could face, and incorrectly advising him of the applicable sentencing guidelines ranges. See Appellant's Brief at 13-19. ⁴ Appellant contends:

Before he was sentenced, [he] was operating under the belief that he was facing 4.5 to 9 years of incarceration, at the bottom of the standard range, and a sentence of 6 to 12 years of incarceration at the top of the standard range. If [Appellant] had been represented by effective counsel, he would have been made aware of the fact that the standard range sentence he faced if convicted was 6 to 12 years at the bottom of the standard range and 7.5 to 15 years at the top of the standard range. [Appellant] proceeded to trial under the misinformed belief that the standard range sentence was 1.5 to 3 years shorter at the bottom, and 3 to 6 years shorter at the top of the standard range of the sentencing guidelines. [Appellant] testified that trial counsel told him the worst sentence he was likely to face if he was convicted at trial was 66-84 months.

Appellant's Brief at 16-17. Appellant argues it "cannot be said that [his] rejection of the plea offer was done intelligently if it was done under an incorrect understanding of the sentencing guidelines." Id. at 19.

The PCRA court detailed its determination that there was no merit to this claim of ineffectiveness:

[Appellant] testified [at the PCRA hearing], "when [the Commonwealth] called for a status conference and offered me 54 to 72 months with one day to accept. At that time trial counsel told me not to accept, because I was only a three [prior record score] on the scale, and I was only facing 66 to 84 months, which is that sentence aggregated. ... So I didn't accept it." N.T., 4/30/19, at 9.

Even if trial counsel did not inform [Appellant] about the potential sentence he would face prior to trial, the trial court did. At a status conference on September 28, 2015, the trial court engaged in a colloquy with [Appellant] regarding the plea offer and the potential consequences he could face if he went to trial:

Q. [THE COURT:] So [Appellant], the guidelines on the top count that [the Commonwealth has] offered are 54 to 72 months in the event your prior record score is a three, and 60 to 78 months in the event your prior record score is a four. In the event the Commonwealth goes to trial and they obtain a conviction on all of the counts against you, they will request consecutive sentences for the statutory maximum of 20 to 40 years on each of Counts 1 and 2, which is within the court's discretion, but that's what t

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