Com. v. Jacobs, J. ( 2022 )

J-S25042-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
JEREMY JOSEPH JACOBS :
:
Appellant : No. 73 WDA 2022
Appeal from the PCRA Order Entered December 17, 2021
In the Court of Common Pleas of Westmoreland County
Criminal Division at No(s): CP-65-CR-0004273-2017
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
JEREMY JOSEPH JACOBS :
:
Appellant : No. 74 WDA 2022
Appeal from the PCRA Order Entered December 17, 2021
In the Court of Common Pleas of Westmoreland County
Criminal Division at No(s): CP-65-CR-0004274-2017
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
JEREMY JOSEPH JACOBS :
:
Appellant : No. 75 WDA 2022
Appeal from the PCRA Order Entered December 17, 2021
In the Court of Common Pleas of Westmoreland County
Criminal Division at No(s): CP-65-CR-0004275-2017
J-S25042-22
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
JEREMY JOSEPH JACOBS :
:
Appellant : No. 76 WDA 2022
Appeal from the PCRA Order Entered December 17, 2021
In the Court of Common Pleas of Westmoreland County
Criminal Division at No(s): CP-65-CR-0004276-2017
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
JEREMY JOSEPH JACOBS :
:
Appellant : No. 77 WDA 2022
Appeal from the PCRA Order Entered December 17, 2021
In the Court of Common Pleas of Westmoreland County
Criminal Division at No(s): CP-65-CR-0004277-2017
BEFORE: BENDER, P.J.E., DUBOW, J., and KING, J.
MEMORANDUM BY KING, J.: FILED: OCTOBER 28, 2022
Appellant, Jeremy Joseph Jacobs, appeals from the order entered in the
Westmoreland County Court of Common Pleas, which denied his first petition
filed pursuant to the Post Conviction Relief Act (“PCRA”).1 We affirm.
The relevant facts and procedural history of this case are as follows. On
June 4, 2018, Appellant entered an open guilty plea at five underlying docket
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1 42 Pa.C.S.A. §§ 9541-9546.
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numbers to: theft by unlawful taking at No. 4273-2017; theft by unlawful
taking at No. 4274-2017; burglary and two counts of theft by unlawful taking
at No. 4275-2017; receiving stolen property and persons not to possess a
firearm at No. 4276-2017; and robbery, burglary, and aggravated assault at
No. 4277-2017. The court ordered a pre-sentence investigation (“PSI”) report
and deferred sentencing. On August 31, 2018, the court sentenced Appellant
at all docket numbers to an aggregate term of 11 to 22 years’ imprisonment.
Appellant did not file post-sentence motions or a direct appeal.
On September 3, 2019, Appellant timely filed a pro se PCRA petition.
The court appointed counsel, who filed an amended PCRA petition on May 11,
2020, alleging plea counsel’s ineffectiveness in connection with the guilty plea.
The court held a PCRA hearing on April 27, 2021, and it denied relief on
December 17, 2021. Appellant timely filed separate notices of appeal at each
underlying docket number on January 11, 2022.2 On January 14, 2022, the
court ordered Appellant to file a concise statement of errors complained of on
appeal per Pa.R.A.P. 1925(b). Appellant timely complied.
Our standard of review of the denial of a PCRA petition is limited to
examining whether the record evidence supports the court’s determination
and whether the court’s decision is free of legal error. Commonwealth v.
Ford, 947 A.2d 1251 (Pa.Super. 2008), appeal denied, 598 Pa. 779, 959 A.2d
____________________________________________2 Thereafter, this Court consolidated the appeals sua sponte.
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319 (2008). 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). If the record supports a post-conviction court’s credibility
determination, it is binding on the appellate court. Commonwealth v.
Dennis, 609 Pa. 442, 17 A.3d 297 (2011).
Appellant argues plea counsel told him that his prior record score was
3, when in fact Appellant’s prior record score was RFEL, which resulted in the
imposition of a higher sentence. Appellant asserts plea counsel informed
Appellant that he was facing no more than 4 to 8 years’ imprisonment.
Appellant claims plea counsel did not make him aware of the possibility of
consecutive sentences. Appellant maintains that after plea counsel realized
he had miscalculated Appellant’s prior record score, plea counsel decided to
“wait and see” what sentence the court imposed, instead of moving to
withdraw the plea. Appellant insists plea counsel mislead Appellant about the
consequences of his guilty plea. Appellant submits plea counsel induced him
to enter a guilty plea that was unknowing, unintelligent, and involuntary.
Appellant concludes plea counsel was ineffective in connection with Appellant’s
guilty plea, and this Court must grant relief. We disagree.
The law presumes counsel has rendered effective assistance.
Commonwealth v. Gonzalez, 858 A.2d 1219, 1222 (Pa.Super. 2004),
appeal denied, 582 Pa. 695, 871 A.2d 189 (2005). To prevail on a claim of
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ineffective assistance of counsel, a petitioner must show, by a preponderance
of the evidence, ineffective 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.
Commonwealth v. Turetsky, 925 A.2d 876 (Pa.Super. 2007), appeal
denied, 596 Pa. 707, 940 A.2d 365 (2007). The petitioner must demonstrate:
(1) the underlying claim has arguable merit; (2) counsel lacked a reasonable
strategic basis for his action or inaction; and (3) but for the errors and
omissions of counsel, there is a reasonable probability that the outcome of the
proceedings would have been different. Id. at 880. “The petitioner bears the
burden of proving all three prongs of the test.” Id.
“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.” Commonwealth v.
Moser, 921 A.2d 526, 531 (Pa.Super. 2007) (internal citation omitted).
“Where the defendant enters his plea on the advice of counsel, the
voluntariness of the plea depends on whether counsel’s advice was within the
range of competence demanded of attorneys in criminal cases.” Id.Pennsylvania law does not require the defendant to “be pleased with the
outcome of his decision to enter a plea of guilty[; a]ll that is required is that
his decision to plead guilty be knowingly, voluntarily and intelligently made.”
Id. at 528-29.
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A guilty plea will be deemed valid if the totality of the circumstances
surrounding the plea shows that the defendant had a full understanding of the
nature and consequences of his plea such that he knowingly and intelligently
entered the plea of his own accord. Commonwealth v. Fluharty, 632 A.2d
312 (Pa.Super. 1993). Pennsylvania law presumes the defendant is aware of
what he is doing when he enters a guilty plea, and the defendant bears the
burden to prove otherwise. Commonwealth v. Pollard, 832 A.2d 517, 523
(Pa.Super. 2003). Mere disappointment in the sentence does not constitute
the necessary “manifest injustice” to render the defendant’s guilty plea
involuntary. Id. at 522. Further, to establish prejudice based on counsel’s
ineffectiveness in connection with a guilty plea, the petitioner must show there
is a reasonable probability that, but for counsel’s errors, the petitioner would
not have pled guilty and would have insisted on going to trial.
Commonwealth v. Barndt, 74 A.3d 185, 192 (Pa.Super. 2013).
Further, we observe that in determining whether to grant a pre-sentence
motion to withdraw a guilty plea, the test to be applied by the court is one of
“fairness and justice.” Commonwealth v. Islas, 156 A.3d 1185, 1188
(Pa.Super. 2017). By contrast, post-sentence motions to withdraw a guilty
plea are subject to a higher scrutiny such that a defendant must demonstrate
that manifest injustice would result if the court were to deny the request. Id.Instantly, the PCRA court explained its reasoning for denying PCRA
relief, as follows:
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[Appellant] claims that ineffective representation by [plea]
counsel induced him to enter a plea of guilty in that counsel
advised him to enter a general plea based on counsel’s
estimation of the applicable sentencing guidelines which
reflected a prior record score of 3 rather than RFEL. There
has been no allegation that the petitioner missed out on an
opportunity to accept a negotiated plea recommendation to
a lower sentence3 nor has [Appellant] anywhere alleged that
he would have proceeded to trial in the absence of counsel’s
advice. [Appellant], therefore, has neither alleged nor
proven prejudice sufficient to support his claims of
ineffective assistance of counsel. PCRA relief can be denied
on this basis alone.
3 According to the credible testimony, the
Commonwealth did not extend a plea offer involving a
recommendation as to sentence. The only plea
negotiations were with regard to an agreement to
dismiss certain criminal charges which was presented
to the [c]ourt at the time of the plea.
Further, this [c]ourt concludes that [Appellant’s] plea was
voluntary, knowing, and intelligent such that counsel’s
advice to plead guilty was within the range of competence
demanded of attorneys in criminal cases. …
In [Appellant’s] case the in-court plea colloquy and the
written plea colloquy show that [Appellant] was advised of
the nature of the criminal charges, the possible sentencing
penalties, the consequences of entering a guilty plea and
the rights given up upon entry of a plea. In this regard,
[Appellant] argues that he was not informed of the
possibility of consecutive sentences. This suggestion is
disproved by a review of the “Guilty Plea Petition” which was
signed by [Appellant] and acknowledged before the [c]ourt.
Further, [Appellant] was 34 years old, completed college,
was of sound mind, and had no apparent difficulty
understanding the [c]ourt. [Appellant] was given an
opportunity to ask questions of this [c]ourt and stated that
he had none. When asked why he was pleading guilty,
[Appellant] responded, “I’m guilty, Your Honor.” Moreover,
at the time of sentencing, [Appellant’s] counsel stated that
[Appellant] pleaded guilty to save the victim from having to
testify and because [Appellant] was remorseful about his
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crimes. When given the chance to address the [c]ourt,
[Appellant] apologized for his actions and assured the
[c]ourt that he would not re-offend. Finally, at the
evidentiary hearing, [plea] counsel explained that it was
decided that it was not in [Appellant’s] interest to proceed
to trial and that [Appellant] “wanted to enter a guilty plea
after we discussed all the facts and circumstances of his
case…” After the sentence was imposed, [plea] counsel met
with [Appellant] who told him that he understood the
sentence and that he was accepting of it. There is no
indication that [Appellant’s] plea was unknowing,
involuntary, or unintelligent. More importantly, there has
been no testimony that [Appellant] would have proceeded
to trial but for counsel’s advice to plead guilty or that it was
not reasonable for counsel to recommend a plea instead of
a trial.
* * *
In sum, this [c]ourt finds that counsel’s recommendation to
[Appellant] that he enter a plea of guilty instead of
proceeding to trial had a reasonable basis designed to
effectuate the interests of [Appellant], despite counsel’s
erroneous estimate of the applicable sentencing guideline
range. After reviewing the evidence and securing an
agreement from the Commonwealth to dismiss several
serious criminal charges, counsel recommended that
[Appellant] avoid trial and enter a guilty plea. This
recommendation was within the range of competence
demanded of attorneys in criminal cases. This [c]ourt’s
observation of [Appellant] in court as well as its review of
the records of the guilty plea hearing, the sentencing
hearing, and the evidentiary hearing all lead to the
conclusion that [Appellant’s] plea was the result of a
deliberate and knowing choice and was not involuntary or
unknowing. Finally, there has been no claim by [Appellant]
which would support a finding that he suffered [prejudice]
nor can such an allegation be supported inasmuch as the
record and the credible testimony supports that [Appellant]
did not forgo a more favorable plea offer based on counsel’s
advice or that [Appellant] would have chosen to proceed to
trial but for counsel’s advice regarding a possible sentence.
* * *
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[Appellant’s] claim that he was not informed of the correct
prior record score before entering his plea, does not mean
that he would have been granted leave to withdraw his plea
under either a pre-sentence or post-sentence standard.
[Appellant] has not asserted that he is innocent of the
criminal charges such as would constitute a fair and just
reason for allowing a withdrawal of his plea prior to
sentencing. Indeed, [Appellant] admitted to the [c]ourt at
the time he entered his plea that he was in fact guilty.
Additionally, the colloquy conducted with [Appellant] by the
[c]ourt adequately informed him of the nature and
consequences of his plea. Further, the written colloquy
which was signed by [Appellant] and reviewed by the [c]ourt
prior to accepting the guilty plea supplemented the [c]ourt’s
explanation of rights. Inasmuch as [Appellant] cannot show
either a fair and just reason for withdrawing his plea pre-
sentence or manifest injustice which would support allowing
him to withdraw his plea post-sentence, it cannot be
concluded that counsel was ineffective for failing to file a
frivolous motion or appeal.
(PCRA Court Opinion, filed 12/17/21, at 10-13; 16-17) (internal citations and
some internal footnotes omitted). The record supports the PCRA court’s
analysis.
Here, Appellant executed a written guilty plea colloquy affirming that his
decision to plead guilty was knowing, intelligent, and voluntary. In the written
plea colloquy and during the oral plea colloquy, Appellant acknowledged the
maximum sentences the court could impose for each crime. As well, Appellant
expressed no reservations about his decision to plead guilty during the oral
plea colloquy and expressly confirmed his understanding that he was entering
a guilty plea open as to sentencing. In exchange for Appellant’s guilty plea,
the Commonwealth withdrew three additional charges at No. 4277-2017,
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which included a charge of attempted rape. Appellant stipulated to the factual
basis for his guilty plea. Nothing in Appellant’s guilty plea hearing proceeding
suggests Appellant’s plea was unknowing, unintelligent, or involuntary. See
Pollard, supra; Moser, supra. See also Commonwealth v. McClendon,
No. 1050 WDA 2020 (Pa.Super. filed May 17, 2021) (unpublished
memorandum)3 (rejecting appellant’s claim on direct appeal that guilty plea
was unknowing, unintelligent and involuntary where plea counsel led him to
believe his prior record score was “3” and that he would receive sentence in
42-to-54-month range, when his actual prior record score was “RFEL” and he
received higher sentence of 60 to 120 months’ imprisonment; appellant
executed written guilty plea colloquy acknowledging maximum sentences that
court could impose and fully communicating his decision to plead guilty and
likewise confirmed his decision to plead guilty during oral colloquy).
Plea counsel testified at the PCRA hearing that Appellant wanted to enter
a general plea after they discussed all the facts and the circumstances,
because it was a “difficult case and…there were four other cases.” (N.T. PCRA
Hearing, 4/27/21, at 6). Plea counsel further explained that he expected
Appellant’s prior record score to be lower but based on an out-of-state
conviction that factored into the calculation, the prior record score increased.
Plea counsel stated that at the time of the guilty plea “we knew it was at least
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3See Pa.R.A.P. 126(b) (stating we may rely on unpublished decisions of this
Court filed after May 1, 2019 for persuasive value).
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possible that [the prior record score] was going to go up. We discussed that.”
(Id.at 7). Plea counsel also indicated that he gave Appellant an estimation of
a sentence the court might impose with the revised prior record score, once
counsel realized the prior record score was higher. (Id. at 12). Plea counsel
and Appellant ultimately decided not to seek to withdraw the plea before
sentencing. (Id. at 11). The court credited plea counsel’s testimony at the
PCRA hearing, and we see no reason to disturb that determination. See
Dennis, supra. The totality of the circumstances demonstrates Appellant had
a full understanding of the nature and consequences of his guilty plea. See
Fluharty, supra. Significantly, Appellant has failed to show that he would
have opted for trial but for counsel’s alleged errors to establish prejudice on
his ineffectiveness claim. See Barndt, supra. Accordingly, we affirm the
order denying PCRA relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/28/2022
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