Com. v. Dennis, J. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JEFFREY DENNIS :
:
Appellant : No. 819 EDA 2020
Appeal from the PCRA Order Entered February 11, 2020
In the Court of Common Pleas of Montgomery County Criminal Division
at No(s): CP-46-CR-0003150-2016
BEFORE: BENDER, P.J.E., SHOGAN, J., and STRASSBURGER, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED: MARCH 1, 2021
Appellant, Jeffrey Dennis, appeals from the post-conviction court’s
February 10, 2020 order denying his timely-filed petition under the Post
Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. After careful review,
we affirm.
The PCRA court briefly summarized the facts and procedural history of
this case, as follows:
[Appellant] was convicted by a jury of possession [with
intent] to deliver cocaine, possession of cocaine, two counts of
firearms not to be carried without a license, receiving stolen
property[,] and two counts of [possession of] drug paraphernalia.
On January 25, 2018, [Appellant] was sentenced to an aggregate
term of 11½ to 32 years’ imprisonment. A timely post-sentence
motion was filed. It was denied on February 2, 2018. A timely
notice of appeal followed. On April 2, 2019, the Pennsylvania
Superior Court affirmed the judgment of sentence.
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* Retired Senior Judge assigned to the Superior Court.
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Commonwealth v. Dennis, [216 A.3d 339 (Pa. Super. 2019)]
([unpublished] memorandum). No further appeal was taken.
Subsequently, on July 25, 2019, [Appellant] filed a pro se
PCRA petition. Counsel was appointed. PCRA counsel filed a
Turner/Finley1 no[-]merit letter. On January 7, 2020, a … notice
of intent was issued in accordance with Pa.R.Crim.P. 907 (“Rule
907 Order”), notifying [Appellant] of this [c]ourt’s intention to
dismiss his petition without a hearing and of his right to respond
to the notice. The Rule 907 Order permitted counsel to withdraw.
After further review, on January 21, 2020, this [c]ourt vacated the
Rule 907 Order, and scheduled an evidentiary hearing on the sole
issue as to whether trial counsel’s alleged ineffectiveness caused
[Appellant] to reject a plea offer. The order also directed PCRA
counsel to re-enter his appearance. On January 27, 2020, this
[c]ourt appointed new PCRA counsel and excused previous
counsel from re-entering his appearance.
1Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988);
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super.
1988) (en banc).
PCRA Court Opinion (PCO), 6/4/20, at 1-2.
On February 7, 2020, the court conducted a PCRA hearing. On February
11, 2020, the court entered an order dismissing his petition. Appellant filed
a timely notice of appeal, and he also timely complied with the PCRA court’s
order to file a Pa.R.A.P. 1925(b) concise statement of errors complained of on
appeal. The court thereafter filed its Rule 1925(a) opinion.
Herein, Appellant states two issues for our review:
1. The [PCRA c]ourt committed an error of law and abuse of
discretion in determining that Appellant failed to prove that trial
counsel’s ineffectiveness caused Appellant to reject a plea offer.
2. The [PCRA c]ourt committed an error of law and abuse of
discretion in not allowing … Appellant to admit into evidence trial
counsel’s disciplinary board opinion and findings suspending trial
counsel from the practice of law[, a]s the findings directly
impacted credibility issues made by the [c]ourt, especially as it
relates to Appellant’s testimony.
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Appellant’s Brief at 3.1
“This Court’s standard of review from the grant or denial of post-
conviction relief is limited to examining whether the lower court’s
determination is supported by the evidence of record and whether it is free of
legal error.” Commonwealth v. Morales, 701 A.2d 516, 520 (Pa. 1997)
(citing Commonwealth v. Travaglia, 661 A.2d 352, 356 n.4 (Pa. 1995)).
Where, as here, a petitioner claims that he or she received ineffective
assistance of counsel, our Supreme Court has directed that the following
standards apply:
[A] PCRA petitioner will be granted relief only when he proves, by
a preponderance of the evidence, that his conviction or sentence
resulted from the “[i]neffective 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.” 42 Pa.C.S. § 9543(a)(2)(ii).
“Counsel is presumed effective, and to rebut that presumption,
the PCRA petitioner must demonstrate that counsel’s performance
was deficient and that such deficiency prejudiced him.”
[Commonwealth v.] Colavita, … 993 A.2d [874,] 886 [(Pa.
2010)] (citing Strickland [v. Washington, 466 U.S. 668 ...
(1984)]). In Pennsylvania, we have refined the Strickland
performance and prejudice test into a three-part inquiry. See
[Commonwealth v.] Pierce, [527 A.2d 973 (Pa. 1987)]. Thus,
to prove counsel ineffective, the petitioner must show that: (1)
his underlying claim is of arguable merit; (2) counsel had no
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1 We chastise Appellant for presenting two issues in his Statement of
Questions Involved, but only one, undivided discussion in the Argument
portion of his brief. See Pa.R.A.P. 2119(a) (“The argument shall be divided
into as many parts as there are questions to be argued; and shall have at the
head of each part—in distinctive type or in type distinctively displayed—the
particular point treated therein….”).
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reasonable basis for his action or inaction; and (3) the petitioner
suffered actual prejudice as a result. Commonwealth v. Ali, …
10 A.3d 282, 291 (Pa. 2010). “If a petitioner fails to prove any of
these prongs, his claim fails.” Commonwealth v. Simpson, …
66 A.3d 253, 260 ([Pa.] 2013) (citation omitted). Generally,
counsel’s assistance is deemed constitutionally effective if he
chose a particular course of conduct that had some reasonable
basis designed to effectuate his client’s interests. See Ali, supra.
Where matters of strategy and tactics are concerned, “a finding
that a chosen strategy lacked a reasonable basis is not warranted
unless it can be concluded that an alternative not chosen offered
a potential for success substantially greater than the course
actually pursued.” Colavita, … 993 A.2d at 887 (quotation and
quotation marks omitted). To demonstrate prejudice, the
petitioner must show that “there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of the
proceedings would have been different.” Commonwealth v.
King, … 57 A.3d 607, 613 ([Pa.] 2012) (quotation, quotation
marks, and citation omitted). “‘[A] reasonable probability is a
probability that is sufficient to undermine confidence in the
outcome of the proceeding.’” Ali, … 10 A.3d at 291 (quoting
Commonwealth v. Collins, … 957 A.2d 237, 244 ([Pa.] 2008)
(citing Strickland, 466 U.S. at 694….)).
Commonwealth v. Spotz, 84 A.3d 294, 311-12 (Pa. 2014).
Appellant first contends that his trial counsel acted ineffectively by
“grossly misinforming him about the consequences of [a] plea offer[,] and not
fully explaining the terms and conditions” thereof. Appellant’s Brief at 9.
According to Appellant, counsel’s failures in this regard caused him to reject
the offer to his detriment. Id. More specifically, he claims that the
Commonwealth offered him a sentence of 5 to 10 years’ incarceration if he
pled guilty to persons not to possess a firearm and possession with intent to
deliver. Appellant claims that he rejected this offer because his counsel
erroneously told him the offered sentence was “the max he could receive[,]”
and counsel did not explain “all the ramifications of rejecting this plea offer….”
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Id. at 10. Appellant maintains that he was prejudiced because he rejected
the offer, proceeded to trial, and was ultimately convicted of more offenses
and sentenced to an aggregate term of 11½ to 32 years’ incarceration.
The PCRA court summarized the evidence presented at the hearing on
Appellant’s ineffectiveness claim, as follows:
[Appellant] testified that his trial attorney was Mr. Kevin Wray,
who[,] in preparation for trial[,] he met with regularly and
frequently at the Montgomery County prison. (PCRA Hearing[,]
2/7/20[, at] … 3-4). [Appellant] stated that he had a brief
conversation with Mr. Wray regarding the Commonwealth’s plea
offer. Id. at 5, 6. Mr. Wray had provided [Appellant] with a copy
of a guilty plea offer form containing the Commonwealth’s offer.
Id. at 7. The guilty plea offer form lists two separate counts,
person not to possess and [possession] with intent to deliver, and
an aggregate sentence of 5 to 10 years. See[] Exhibit D-1.2 He
estimated that Mr. Wray gave him this form about six months
before his trial. Id. at 8. [Appellant] maintained that at the time
he spoke to Mr. Wray about the plea offer[,] he did not know how
many counts he was facing. Id. at 10. [Appellant] also
maintained that he was not aware when the plea offer was
conveyed that the other 15 to 20 counts would be nol[] prossed,
if he accepted the plea offer. Id. [Appellant] told this [c]ourt that
if he [had been] made aware of that, he might not have gone to
trial. Id. at 11. [Appellant] told this [c]ourt that he thought a 5
to 10 year offer was a good deal because he thought his initial
offer was going to be 10 to 20 years. Id. According to
[Appellant,] Mr. Wray brushed the plea offer off and told him that
the Commonwealth was offering him “the max[.]”[] Id. at 13. It
was [Appellant’s] impression from that conversation that he was
being offered the max in the plea agreement. Id. at 15. He stated
he had no clue how many [offenses] he was charged with[,] and
Mr. Wray never explained to him what his maximum exposure
would be if he went to trial. Id. at 15-16. Additionally,
[Appellant] denied that Mr. Wray ever had any discussions with
him about his prior record score or offense gravity score. Id. at
17. It was [Appellant’s] testimony that after that initial
conversation about the plea offer[,] Mr. Wray never spoke about
it with him again. Id. at 11-12.
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2 There are some handwritten notes in the margin of the
form, wherein it reads, “Not guidelines, is max, is not F2, is
a[n] M1.” These are [Appellant’s] own notes that he added
at two separate times, once during his initial conversation
with Mr. Wray and then much later after this initial
conversation. [Id. at] 5-6, 13-14[].
[Appellant] further testified that at the time the plea was
conveyed, the guilty plea offer form showed that a person not to
possess was graded as a second[-]degree felony. Id. at 13. It
was not until after conviction that anyone explained this was an
error because the charge should have been graded as a first[-
]degree misdemeanor. Id. at 13-14.
The Commonwealth cross-examined [Appellant] as to his direct
testimony that he was not aware[,] when the plea offer was
conveyed[,] that the other 15 to 20 counts would be nol[] prossed
if he accepted the plea offer. Id. at 20. [Appellant] admitted that
he knew that there were more than two charges against him, i.e.,
more than the two listed on the guilty plea offer form, but he just
didn’t know how many charges there were. Id. at 21. Further,
[Appellant] testified that he told Mr. Wray that he wanted to plead
guilty and that he wanted to accept the offer because he thought
it was a good offer. Id. at 24. [Appellant] unequivocally told this
[c]ourt that he told Mr. Wray he wanted to plead guilty. Id.
On behalf of the Commonwealth, Kathleen McLaughlin testified.
Ms. McLaughlin is an Assistant District Attorney in the Montgomery
County District Attorney’s Office. Id. at 27-28. During the
relevant time period, Ms. McLaughlin was the captain of the drug
unit, and in the course of that position, she became involved in
[Appellant’s] case. Id. at 28. She was the prosecutor assigned
to handle the matter, which in part entailed reviewing the case file
to get a complete understanding of the case. Id. at 29. After Ms.
McLaughlin’s complete and full understanding of the case, she
conveyed a guilty plea offer of an aggregate of 5 to 10 years’
imprisonment. Id. at 31. She considered the charges and the
amounts of things that were there, such as the drugs and guns,
taking into account guidelines, [and] prior history. Id. After the
offer was conveyed, she did not have specific conversations with
Mr. Wray about the offer; however, throughout the process, it was
[Appellant’s] contention that he was innocent, [and] that he would
be vindicated at trial. Id. at 33-34. [Appellant] wanted to have
a [Pa.R.Crim.P.] 600 hearing, a full habeas hearing, [and] a
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motion to compel the confidential informant hearing, [all of] which
was done. Id.
As to the [incorrect] grading of the person not to possess
charge, Ms. McLaughlin testified that it would not have ultimately
affected the plea offer she made of 5 to 10 years. Id. at 35-36.
PCO at 2-5.
In rejecting Appellant’s ineffectiveness claim, the PCRA court “found
[Appellant’s] testimony that Mr. Wray dismissed the plea offer as ‘the max’
and brushed it aside without further conversation as not credible.” Id. at 9.
The court explained that,
[Appellant’s] testimony was contradictory. On the one hand[,] he
stated that Mr. Wray did not discuss the plea deal with him simply
dismissing it as “the max[,”] but on the other hand[, Appellant]
testified that he knew it was a good deal and that he told Mr. Wray
he wanted to plead guilty and take the deal.
Id. Based on Appellant’s incredible testimony, the court found that his
underlying claim lacked arguable merit. Id. Appellant’s testimony, as
described by the PCRA court, supports its credibility determination, thus
binding this Court to accept it.2 See Commonwealth v. Abu–Jamal, 720
A.2d 79, 99 (Pa. 1998) (“Just as with any other credibility determination,
where the record supports the PCRA court’s credibility determinations, those
determinations are binding on this [C]ourt.”). Accordingly, his underlying
ineffectiveness claim lacks arguable merit.
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2 Although the record contains an order by the PCRA court directing the court
reporter to produce a transcript of the PCRA hearing, and the court cites to a
transcript of that proceeding, it is not included in the certified record
transmitted to this Court. Our efforts to locate the transcript were fruitless.
Thus, we accept the PCRA court’s recitation of the testimony offered at that
proceeding, which Appellant does not refute.
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Nevertheless, we also agree with the PCRA court’s conclusion that
Appellant failed to establish that Mr. Wray had no reasonable basis for
purportedly advising him not to accept the plea offer. Notably, Appellant did
not call Mr. Wray to the stand at the PCRA hearing. Concluding that this failure
was detrimental to his ineffectiveness claim, the PCRA court reasoned:
When an evidentiary hearing on a claim of ineffectiveness is
granted, the burdens of production and persuasion are on the
petitioner. Commonwealth v. Jones, 596 A.2d 885, 888 (Pa.
Super. 1991). … [A] petitioner must establish that each prong of
the test for ineffectiveness was met. In this case, [Appellant] has
not met his burden because he failed to establish that Mr. Wray
lacked a reasonable basis for his acts or alleged omissions;
therefore, the claim fails.
At the evidentiary hearing, [Appellant] offered only his testimony
to establish that Mr. Wray acted ineffectively. Generally, “a lawyer
should not be held ineffective without first having an opportunity
to address the accusation in some fashion.” Commonwealth v.
Koehler, 36 A.3d 121, 132 (Pa. 2012); Commonwealth v.
Colavita, 993 A.2d 874, 895 (Pa. 2010). While there may be
cases where the absence of a reasonable strategy is uncontested,
there is “a strong preference that counsel be heard from before
being found ineffective.” Id. at 895. “The ultimate focus of an
ineffectiveness inquiry is always upon counsel, and not upon an
alleged deficiency in the abstract.” Id. at 896; see also
Commonwealth v. Johnson, 139 A.3d [1257, 1276] (Pa. 2016)
(holding that [a bald assertion of unreasonableness is insufficient]
to sustain [a petitioner’s] burden [of proving] that counsel’s
actions were unreasonable[]); Commonwealth v. Duffey, 855
A.2d 764, 775 (Pa. 2004) (finding that in the absence of testimony
from counsel, the court “should refrain from gleaning whether...a
reasonable basis exists[]”). Thus, in order to establish that Mr.
Wray lacked a reasonable basis for his alleged inactions,
[Appellant] should have offered his testimony at the evidentiary
hearing. This [c]ourt did not hear from Mr. Wray as to why the
case ultimately went to trial. Perhaps [Appellant] insisted on his
innocence and [counsel] had no choice but to go to trial, and that
was a reasonable strategy. The fact is [that,] without Mr. Wray’s
testimony[,] this [c]ourt is only left to surmise what happened.
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PCO at 7-8.
In response to the court’s rationale, Appellant contends that counsel’s
testimony was unnecessary to proving his ineffectiveness claim because he
“is not challenging trial strategy or [the] basis for how trial counsel conducted
his trial.” Appellant’s Brief at 11. Appellant explains that, instead, he “is
specifically making a claim pursuant to Missouri v. Frye, [566 U.S. 1399]
(2012)[,] and Lafler v. Cooper, [566 U.S. 156] (2012), that he did not
receive effective [assistance of] counsel due to the fact that trial counsel never
properly advised him of the plea offer in this case and[,] as a result of trial
counsel’s lack of explanation, he rejected the plea offer and went to trial.” Id.It seems that Appellant is suggesting that, because he is alleging that
counsel failed to explain the plea offer, we must presume that counsel acted
unreasonably. Neither of the two cases on which he relies — Lafler and Frye
— supports this position. For instance, in Lafler, the parties agreed that “the
performance of respondent’s counsel was deficient when he advised
respondent to reject [a favorable] plea offer on the grounds he could not be
convicted at trial.” Lafler, 566 U.S. at 163. While this concession made it
unnecessary for the Court to explore the reasonableness of counsel’s conduct,
id., the Lafler Court recognized that the “Strickland ... test applies to
challenges to guilty pleas based on ineffective assistance of counsel[,]” and
that “[t]he performance prong of Strickland requires a defendant to show
that counsel’s representation fell below an objective standard of
reasonableness,” id. at 162-63 (emphasis added).
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In Frye, the Supreme Court held “that, as a general rule, defense
counsel has the duty to communicate formal offers from the prosecution to
accept a plea on terms and conditions that may be favorable to the accused.”
Frye, 566 U.S. at 145. As in Lafler, the Court made clear “that claims of
ineffective assistance of counsel in the plea bargain context are governed by
the … test set forth in Strickland,” which includes a reasonableness inquiry.
Id. at 140 (citing Hill v. Lockhart, 474 U.S. 52, 57 (1985) (stating that the
Strickland test for ineffectiveness applies to the plea process; therefore,
“[w]hen a convicted defendant complains of the ineffectiveness of counsel’s
assistance, the defendant must show[, inter alia,] that counsel’s
representation fell below an objective standard of reasonableness”) (quoting
Strickland, 466 U.S. at 687–88)). Because in Frye, it was undisputed that
defense counsel had allowed a formal offer with a fixed expiration date to
expire without communicating it to his client, the Court found that “defense
counsel did not render the effective assistance the Constitution requires.” Id.
at 145. It then moved on to the question of whether the defendant was
prejudiced by counsel’s deficient representation. Id. at 147 (“Here defense
counsel did not communicate the formal offers to the defendant. As a result
of that deficient performance, the offers lapsed. Under Strickland, the
question then becomes what, if any, prejudice resulted from the breach of
duty.”).
It is apparent that under Strickland, Lafler, and Frye, Appellant bore
the burden of proving that Mr. Wray acted unreasonably in failing to
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adequately explain the Commonwealth’s plea offer.3 He failed to do so. Unlike
in Lafler and Frye, there was no consensus on what advice or information
counsel did, or did not, give to Appellant about the Commonwealth’s plea
offer. Appellant testified about what he recalled Mr. Wray telling him, but the
court found his testimony contradictory and incredible. Problematically,
Appellant failed to call Mr. Wray to testify, thus precluding the court from
hearing counsel’s version of the events surrounding Appellant’s rejection of
the plea offer. Based on this record, we discern no error in the court’s
conclusion that Appellant failed to prove that Mr. Wray acted unreasonably.
Thus, Appellant’s ineffectiveness claim fails.
In Appellant’s second issue, he contends that the PCRA court erred by
preventing him from presenting evidence regarding Mr. Wray’s “disciplinary
board opinion and findings suspending trial counsel from the practice of law….”
Appellant’s Brief at 12-13. Appellant argues that this evidence would have
been relevant to the court’s assessment of the credibility of Appellant’s
testimony that Mr. Wray acted deficiently in advising him about the
Commonwealth’s plea offer. Id. at 13.
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3 This Court has also applied the three-pronged test for ineffectiveness —
including the reasonable-basis prong — to a claim that counsel acted
ineffectively by failing to fully or properly advise a defendant about a plea offer
from the Commonwealth. See Commonwealth v. Chazin, 875 A.2d 732,
734-35 (Pa. Super. 2005) (applying the three-pronged ineffectiveness test to
a claim that counsel failed to fully advise the defendant about a plea offer).
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We agree with the Commonwealth that Appellant’s claim is waived for
lack of development. See Commonwealth’s Brief at 29. As the
Commonwealth correctly points out, “It is not for this Court to develop an
appellant’s arguments.” Id. (quoting Commonwealth v. Rush, 959 A.2d
945, 950 (Pa. Super. 2008) (citations omitted)). Here, Appellant presents a
mere three sentences in support of his second issue, tacked onto the end of
his ineffectiveness claim. While he mentions Pa.R.E. 401 and 402, he fails to
discuss how those rules apply to the court’s ruling in this case. Appellant also
provides no citation to any other legal authority. In view of Appellant’s
undeveloped and legally unsupported argument, we deem his second claim
waived. See Rush, 959 A.2d at 950-51 (“[I]t is the appellant’s obligation to
present developed arguments and, in so doing, apply the relevant law to the
facts of the case, persuade us there were errors, and convince us relief is due
because of those errors. If an appellant fails to do so, we may find the
argument waived.”) (citation omitted).4
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4 In any event, we would conclude that Appellant is not entitled to relief on
this claim. The PCRA court noted that “the trial in this case was scheduled
around the fact that Mr. Wray was going to be suspended….” Id. at 11 n.3.
Thus, the PCRA court was obviously aware that Mr. Wray committed
disciplinary infractions significant enough to result in his suspension, and it
presumably factored that information into its assessment of the credibility of
Appellant’s testimony about Mr. Wray’s representation. For this reason, we
fail to see — and Appellant does not explain — how he was prejudiced by the
court’s decision to preclude the evidence regarding specific misconduct by Mr.
Wray in cases other than Appellant’s. Consequently, we would agree with the
Commonwealth that any error in the court’s preclusion of this evidence was
harmless. See Commonwealth’s Brief at 34 n.4; Commonwealth v. Fewell,
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Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/1/21
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654 A.2d 1109, 1115 (Pa. Super. 1995) (“An error in the admission
or exclusion of evidence requires reversal unless the Commonwealth
establishes that the error was harmless beyond a reasonable doubt.”).
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