Com. v. Grant, N. ( 2022 )

J-S34031-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
NASIR ANTHONY MALIK GRANT :
:
Appellant : No. 625 MDA 2021
Appeal from the PCRA Order Entered April 22, 2021
In the Court of Common Pleas of Dauphin County Criminal Division at
No(s): CP-22-CR-0001705-2019
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
NASIR ANTHONY GRANT :
:
Appellant : No. 626 MDA 2021
Appeal from the PCRA Order Entered April 22, 2021
In the Court of Common Pleas of Dauphin County Criminal Division at
No(s): CP-22-CR-0001532-2019
BEFORE: DUBOW, J., McLAUGHLIN, J., and McCAFFERY, J.
MEMORANDUM BY DUBOW, J.: FILED: FEBRUARY 23, 2022
Appellant, Nasir Anthony Malik Grant, appeals from the orders entered
at two criminal dockets in the Dauphin County Court of Common Pleas denying
his first petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42
Pa.C.S. §§ 9541-46. After careful review, we affirm.
At a plea hearing held January 21, 2020, Appellant entered a negotiated
guilty plea to firearms and other offenses. Appellant admitted that on March
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13, 2019, he caused a hit-and-run collision while driving a stolen vehicle, then
fled from the police. Appellant reached speeds up to 125 miles-per-hour
before abandoning his vehicle and continuing to flee on foot. When police
eventually caught Appellant, he was in possession of a 9-millimeter handgun
and “a large amount of crack cocaine, heroin, and methamphetamine pills.
[Appellant] also has a prior conviction for a delivery of a controlled substance
making him a person[] not to possess [a firearm].”1 PCRA Ct. Op., 4/21/21,
at 1 n.1.
Pursuant to the negotiated plea, the court immediately sentenced
Appellant to an aggregate term of 4 to 10 years’ incarceration. Relevant to
the instant appeal, Appellant’s sentence did not include participation in boot
camp. Appellant did not file a direct appeal.
On June 5, 2020, Appellant pro se filed a timely PCRA petition, his first.
The PCRA court appointed counsel who, on July 30, 2020, filed an amended
petition alleging ineffective assistance of plea counsel (“IAC”) for, inter alia,
allegedly misleading Appellant into believing his plea deal included
participation in boot camp.
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1 The Commonwealth charged Appellant with three counts of Possession with
Intent to Deliver a Controlled Substance and one count each of Persons Not
to Possess Firearms, Firearms Not to be Carried Without a License, Recklessly
Endangering Another Person, Receiving Stolen Property, Flight to Avoid
Apprehension, Fleeing or Attempting to Elude Police Officer, Driving While
Operating Privilege Suspended or Revoked, Accidents Involving Damage to
Attended Vehicle or Property, and Duty to Give Information and Render Aid.
35 P.S. § 780-113(a)(30), 18 Pa.C.S. §§ 6105(a)(1), 6106(a)(1), 2705,
3925(a), 5126(a), 75 Pa.C.S. §§ 3733(a), 1543(a), 3743(a), 3744(a),
respectively. Appellant pleaded guilty to all charges.
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On December 18, 2020, the PCRA court held a hearing at which
Appellant and his plea counsel testified. On April 26, 2021, the court dismissed
Appellant’s petition. Appellant timely filed a Notice of Appeal and both he and
the PCRA court complied with Pa.R.A.P. 1925.
Appellant raises a single issue for our review:
Whether the trial court erred in dismissing [Appellant’s] PCRA
petitions when plea counsel was ineffective for advising Appellant
that he was eligible to participate in a boot-camp program while
incarcerated, where such advice was erroneous and material to
Appellant’s decision to accept the plea [deal]?
Appellant’s Br. at 8 (unpaginated).2
Appellant alleges that his plea counsel errantly advised him that his
negotiated sentence would include participation in boot camp. Id. at 14, 16-
19. Appellant avers that, but-for counsel’s reference to boot camp, he would
not have accepted the deal and would have, instead, gone to trial. Id. at 18.
In reviewing an appeal from the denial of PCRA relief, “this Court is
limited to ascertaining whether the evidence supports the determination of
the PCRA court and whether the ruling is free of legal error.” Commonwealth
v. Andrews, 158 A.3d 1260, 1263 (Pa. Super. 2017) (citation omitted). Our
scope of review is restricted to the findings of the PCRA court and the evidence
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2 Appellant also alleges that “counsel specifically and erroneously advised him
of an incorrect prior record score” based on a mistaken belief that Appellant
was born in 1995 rather than 1999. Appellant’s Br. at 17. Appellant did not
include this issue in his Statement of Questions Involved and it is not fairly
suggested thereby; thus, it is waived. See Pa.R.A.P. 2116 (“No question will
be considered unless it is stated in the statement of questions involved or is
fairly suggested thereby.”).
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of record and must view these in a light most favorable to the Commonwealth
as the prevailing party. Commonwealth v. Medina, 92 A.3d 1210, 1214 (Pa.
Super. 2014). Crucially, the PCRA court’s credibility determinations are
binding on this Court when supported by the record. Commonwealth v.
Spotz, 18 A.3d 244, 259 (Pa. Super. 2011).
Appellant alleges that his plea counsel was ineffective. We presume
counsel is effective. Commonwealth v. Cox, 983 A.2d 666, 678 (Pa. 2009).
To overcome this presumption, a petitioner must establish that: (1) the
underlying claim has arguable merit; (2) counsel lacked a reasonable basis for
his act or omission; and (3) petitioner suffered actual prejudice.
Commonwealth v. Treiber, 121 A.3d 435, 445 (Pa. 2015). To establish
prejudice for ineffective assistance of plea counsel, the petitioner must prove
a reasonable probability that but-for counsel’s error, the petitioner would have
insisted on going to trial. Commonwealth v. Pier, 182 A.3d 476, 479 (Pa.
Super. 2018). A claim will be denied if the petitioner fails to meet any one of
these prongs. Commonwealth v. Daniels, 963 A.2d 409, 419 (Pa. 2009).
In the instant case Appellant testified that he asked plea counsel if “boot
camp [was] an option” if he pleaded guilty. N.T. PCRA Hr’g, 12/18/20, at 5.
According to Appellant, plea counsel responded: “boot camp can be waived in
during the sentencing process.” Id. Appellant understood this response to
mean that his sentence would include boot camp, and it was the “only reason
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[he] stepped up and signed the [plea agreement.]”3 Id. Appellant’s testimony
was the sole evidence presented at his PCRA hearing that, but-for counsel’s
reference to boot camp, Appellant would have insisted on going to trial.
In its opinion, the PCRA court explained that it did not find Appellant’s
testimony that he would have gone to trial to be credible. PCRA Ct. Op.,
4/21/21, at 7. In support, the court cited (1) the 104-year maximum sentence
Appellant would have faced if convicted of all charges at trial; (2) the
“disturbing” facts of the case; and (3) that Appellant had a prior conviction for
delivery of a controlled substance, thus making him a person not to possess
a firearm. Id. at 1 n.1, 7.
Given its credibility finding and the lack of other relevant evidence, the
PCRA court found that Appellant failed to prove that plea counsel’s conduct
caused him to suffer prejudice. PCRA Ct. Op. at 7. As a result, it concluded
that Appellant’s ineffective assistance of counsel claim failed. Id. at 7-8.
The record supports the PCRA court’s credibility finding and, thus, we
defer to it. See N.T. Plea Hr’g, 1/21/20, at 3-6 (recounting on the record the
facts of underlying incident and Appellant’s criminal history); Written Plea
Colloquy, 1/21/20 (listing maximum aggregate sentence for all convictions).
Given the court’s credibility determination and the absence of other relevant
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3 Appellant also cites to a statement plea counsel made during sentencing,
after Appellant had entered his plea, that Appellant was “looking forward to
[quitting the use of illegal drugs] through boot camp[.]” N.T. Plea Hr’g,
1/21/20, at 7. There was no further mention of boot camp at Appellant’s plea
hearing.
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evidence, we agree with the PCRA court that Appellant failed to prove that
plea counsel’s stewardship caused him to suffer prejudice. As a result, we
affirm the court’s order dismissing Appellant’s PCRA petition.
Order affirmed.
Judge McLaughlin files a concurring statement in which Judge Dubow
joins.
Judge McCaffery files a dissenting memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 02/23/2022
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