Com. v. Gibbs, G. ( 2021 )

J-A02028-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
GREG ALAN GIBBS, SR. :
:
Appellant : No. 379 WDA 2020
Appeal from the PCRA Order Entered February 24, 2020
In the Court of Common Pleas of Bedford County Criminal Division at
No(s): CP-05-CR-0000008-2009
BEFORE: BOWES, J., NICHOLS, J., and McLAUGHLIN, J.
MEMORANDUM BY NICHOLS, J.: FILED: MARCH 16, 2021
Appellant, Greg Alan Gibbs, Sr., appeals from the order denying his
timely first Post Conviction Relief Act1 (PCRA) petition. Appellant asserts that
trial counsel was ineffective by not advising him of the possibility of entering
a guilty plea and by not seeking a plea offer from the Commonwealth. We
affirm.
A previous panel of this Court summarized the procedural history of this
case as follows:
In August of 2007, the Commonwealth arrested and charged
Appellant with [rape of a child and related offenses] for his illegal
sexual contact with his two biological children and his
stepdaughter. The Commonwealth subsequently filed a bill of
particulars setting forth three specific ranges of dates when the
contact occurred, covering a total of eight consecutive months
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1 42 Pa.C.S. §§ 9541-9546.
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from August 2004 through March 2005. After the jury returned a
guilty verdict on all charges:
the trial court imposed statutory maximum sentences on six
counts of rape, running them consecutively to form an
aggregate sentence of 120 to 240 years’ incarceration. In
addition, the court later determined that Appellant was a
Sexually Violent Predator under Megan’s Law, 42 Pa.C.S.[]
§§ 9791-9799.9. Post sentence motions were subsequently
denied, and Appellant filed [a] timely notice of appeal.
* * *
This Court affirmed in all respects addressed with the exception of
the discretionary aspects of sentencing because the trial court had
failed to demonstrate that it was knowingly departing from all
guidelines available to it.
* * *
Following remand, on January 11, 2012, the [trial] court re-
sentenced Appellant to an aggregate term of incarceration of not
less than 217 nor more than 467 years. . . .
Appellant filed post-sentence motions arguing merger of some of
the counts, improper mandatory sentencing, and abuse of
discretion. On May 23, 2012, the [trial] court granted the motion
to the extent that some of the counts merged for sentencing
purposes and amended the sentence to an aggregate term of no
less than 137 nor more than 307 years’ incarceration.
Commonwealth v. Gibbs, 959 WDA 2012, 2013 WL 11260383, at *1 (Pa.
Super. filed July 22, 2013) (unpublished mem.) (citations and footnotes
omitted, and some formatting altered), appeal denied, 86 A.3d 232 (Pa.
2014). This Court affirmed Appellant’s judgment of sentence on July 22,
2013, and our Supreme Court declined further review on February 28, 2014.
Id.Appellant filed a timely pro se PCRA petition on September 23, 2014.
The PCRA court appointed counsel for Appellant, and PCRA counsel filed
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several amended PCRA petitions. Appellant raised several claims of ineffective
assistance of trial counsel including: (1) failure to explain to Appellant that a
guilty plea would be limited to certain charges rather than all of the charges;
(2) failure to explain to Appellant the maximum possible sentence if all
sentences were imposed consecutively; and (3) failure to enter into plea
negotiations with the Commonwealth. Third Am. PCRA Pet., 6/25/19, at 3-4,
6-7 (unpaginated).
The PCRA court held evidentiary hearings on April 26, 2019, and July
17, 2019, at which trial counsel and Appellant testified. Trial counsel testified
that he met with Appellant numerous times before trial. N.T., 4/26/19, at 11.
When asked if he told Appellant that Appellant was facing the possibility of
spending the rest of his life in prison, trial counsel replied that he did not recall
putting it in those terms, he stated, “I know I would have gone over the
maximum[ sentences] and the ranges given his prior record . . . and that if
the judge ran [the sentences] consecutive[ly] he could be looking at in excess
of a hundred years.” Id. at 58. Trial counsel recalled Appellant “was pretty
adamant he didn’t do this. He was innocent.” Id. at 12.
Trial counsel testified that he did not recall, and his case notes did not
reflect, that the Commonwealth made any plea offers, written or oral. Id. at
13, 51. According to trial counsel, at the time of Appellant’s trial, it was the
standard practice of the Bedford County District Attorney’s Office to extend
plea offers by letter. Id. at 50-51. Trial counsel explained if he had received
a written plea offer, he would have made a copy for Appellant and discussed
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it with Appellant at one of their meetings. Id. at 29, 40-41, 51, 59. Further,
trial counsel stated that he did not request a plea offer from the
Commonwealth because Appellant insisted that he was innocent. Id. at 13-
14, 51, 58. For the same reason, trial counsel said he did not discuss what
charges Appellant might consider pleading guilty to as part of a plea bargain.
Id. at 44.
Appellant testified that trial counsel met with him between ten and
fifteen times before trial and that each of these meetings lasted between
ninety minutes and two hours. N.T., 7/17/19, at 24-25. Appellant stated that
trial counsel did not explain the concepts of consecutive sentences versus
concurrent sentences or the maximum possible sentence he could receive if
convicted. Id. at 14-15.
Appellant testified he did not receive an official plea offer from the
Commonwealth. Id. at 10. Appellant noted that he maintained his innocence
throughout trial, and he continued to profess his innocence at the PCRA
hearing. Id. at 11. Appellant admitted that he did not tell trial counsel that
he was interested in considering a potential plea offer and he did not instruct
trial counsel to pursue a plea offer. Id. at 11-13. However, Appellant testified
that if a plea offer was presented to him, he would “most likely” consider it,
but the offer would have had to drop some of the charges he was facing and
include a sentencing recommendation that would include the possibility of him
being paroled in his lifetime. Id. at 13-14. Appellant conceded that he did
not tell trial counsel that he would have accepted a plea offer that met these
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conditions. Id. Appellant did not call any other witness or present any other
evidence regarding what the Commonwealth would have included in a plea
offer if Appellant had requested one or if the Commonwealth would have
extended a plea offer at all.
On February 24, 2020, the PCRA court denied Appellant’s petition.
Appellant filed a timely notice of appeal on March 9, 2020. The PCRA court
did not order Appellant to comply with Pa.R.A.P. 1925(b), but filed a Pa.R.A.P.
1925(a) opinion on July 20, 2020.
Appellant raises the following issues on appeal:
1. Whether or not the [PCRA c]ourt erred or misapplied the law
when it found that trial counsel was not ineffective where trial
counsel did not discuss the plea and trial process with the
[Appellant], including important matters such as explaining the
difference between consecutive and concurrent sentences,
minimum and maximum sentences, open and closed pleas, and
reducing the number of charges?
2. Whether or not the [PCRA c]ourt erred when it found that trial
counsel is not or should not be obligated under Pennsylvania
law to request a plea offer from the Commonwealth so that the
[Appellant] can weigh all available options prior to proceeding
to trial?
Appellant’s Brief at 6 (some formatting altered).
We summarize Appellant’s arguments together as they are closely
related. Appellant argues that his trial counsel was ineffective because he (1)
did not discuss the possibility of a plea bargain with Appellant, (2) did not
discuss the maximum possible sentence Appellant was facing if he was found
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guilty at trial, and (3) did not request a plea offer from the Commonwealth.
Id. at 21-30, 35-38.
Initially, Appellant concedes that there is no constitutional right to be
offered a plea bargain. Id. at 37. However, Appellant contends that an
attorney can be ineffective by not explaining the plea process to a defendant,
especially where the defendant can expect leniency based on a plea. Id. at
23-24, 33 (citing United States v. Booth, 432 F.3d 542 (3rd Cir. 2005)).
Appellant further asserts that an attorney is ineffective when he fails to inform
his client of the correct maximum possible sentence if found guilty at trial.
Id. at 25-26, 34 (citing United States v. Day, 969 F.2d 39, 44 (3rd Cir.
1992)). Appellant claims that in the instant case, his trial counsel was
ineffective because he failed to explain to him that the trial court could impose
sentences concurrently or consecutively and that some of the charges against
him could be dismissed as part of plea agreement. Id. at 26-30. Appellant
requests that we “find that under Pennsylvania law defense counsel has an
obligation to request a plea offer from the Commonwealth and failure to do so
may constitute ineffective assistance of counsel.” Id. at 38.
As to prejudice, Appellant argues that trial counsel’s ineffectiveness
prevented him from making a knowing, intelligent, and voluntary decision
about whether to proceed to trial instead of entering a plea. Id. at 26-30, 34-
38. Appellant contends that he suffered prejudice because he was sentenced
to a term of 137 to 307 years’ incarceration, an effective life sentence,
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following trial, when a plea bargain could have included a sentence where he
would be paroled in his lifetime. Id. at 36-38.
The Commonwealth responds that Appellant has not established any of
the prongs of an ineffective assistance of counsel claim. Commonwealth’s
Brief at 16, 18. The Commonwealth contends because “there is no
constitutional requirement that defense counsel ask the prosecution to extend
a plea offer[,]” Appellant’s claim lacks arguable merit. Id. at 18. Further, the
Commonwealth asserts “[t]rial counsel is not required to seek a plea
agreement, especially where his client professes his innocence.” Id. at 17
(citing United States ex. rel. Tillman v. Alldredge, 350 F.Supp. 189, 195-
96 (E.D. Pa. 1972); Poindexter v. Rader, 2011 WL 1193022, at *9 (E.D. La.
filed Mar. 14, 2011); Lerma-Castillo v. United States, 2009 WL 2914235,
at *6 (W.D. Tex. filed Sept. 8, 2009)). The Commonwealth emphasizes that
it did not make a plea offer. Id. at 12-14. Lastly, the Commonwealth argues
that the PCRA court rejected Appellant’s testimony that trial counsel did not
explain the maximum possible sentence he faced as incredible. Id. at 14-15
(citing PCRA Ct. Op., 7/20/20, at 2).
The Commonwealth further contends that Appellant “has not established
how he was prejudiced by trial counsel’s thorough, diligent preparation for,
and performance at, [Appellant’s] trial, . . .” Id. at 16. The Commonwealth
argues that Appellant cannot establish prejudice as there is no evidence that
a plea offer would have been made nor that Appellant would have accepted it.
Id. at 18.
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Our standard of review from the denial of a PCRA petition “is limited to
examining whether the PCRA court’s determination is supported by the
evidence of record and whether it is free of legal error.” Commonwealth v.
Ousley, 21 A.3d 1238, 1242 (Pa. Super. 2011) (citation omitted). “The PCRA
court’s credibility determinations, when supported by the record, are binding
on this Court; however, we apply a de novo standard of review to the PCRA
court’s legal conclusions.” Commonwealth v. Mitchell, 105 A.3d 1257,
1265 (Pa. 2014) (citation omitted).
We presume that the petitioner’s trial counsel was effective.
Commonwealth v. Freeland, 106 A.3d 768, 775 (Pa. Super. 2014). To
establish a claim of 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, 880 (Pa.
Super. 2007) (citations omitted).
Generally, to be entitled to relief on a claim of ineffective assistance of
counsel a petitioner must establish (1) that the underlying claim has arguable
merit; (2) that counsel lacked a reasonable basis for his action or inaction;
and (3) but for the act or omission in question, the outcome of the proceedings
would have been different (i.e., petitioner was prejudiced). Commonwealth
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v. Washington, 927 A.2d 586, 594 (Pa. 2007).2 “A claim of ineffectiveness
may be denied by a showing that the petitioner’s evidence fails to meet any
of these prongs.” Id. (citations omitted).
“A criminal defendant has the right to effective counsel during a plea
process as well as during a trial.” Commonwealth v. Kehr, 180 A.3d 754,
760 (Pa. Super. 2018) (citation omitted); see also Lafler v. Cooper, 566
U.S. 156, 162 (2012) (stating “[d]efendants have a Sixth Amendment right
to counsel, a right that extends to the plea-bargaining process” (citations
omitted)).
However, “[t]he Commonwealth is never under any legal obligation to
plea bargain with any defendant. Stated another way[,] a defendant has no
constitutional right to a plea bargain arrangement. . . .” Commonwealth v.
McElroy, 665 A.2d 813, 816 (Pa. Super. 1995) (citation omitted); accord
Missouri v. Frye, 566 U.S. 134, 148-49 (2012) (“a defendant has no right to
be offered a plea, nor a federal right that the judge accept it” (citations
omitted)).
This Court has explained:
In Lafler, . . . the Supreme Court of the United States elucidated
the showing necessary to satisfy Strickland’s prejudice prong
(the third prong of the Pierce test) in cases where counsel’s
ineffectiveness causes a defendant to reject a plea offer.
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2 Pennsylvania’s three-part standard for assessing claims of counsel
ineffectiveness adopted in Commonwealth v. Pierce, 527 A.2d 973 (Pa.
1987) is materially identical to the two-part test set forth in Strickland v.
Washington, 466 U.S. 668 (1984). Washington, 927 A.2d at 594 n.8.
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* * *
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 the judgment and sentence
that in fact were imposed.
Commonwealth v. Steckley, 128 A.3d 826, 832 (Pa. Super. 2015) (quoting
Lafler, 566 U.S. at 164).
In Steckley, trial counsel failed to advise the defendant about an
applicable twenty-five year mandatory minimum sentence. Id. at 830. The
Commonwealth extended, and the defendant rejected, two plea offers: one
for three to six years’ imprisonment and the other for two to six years’
imprisonment. Id. at 829. The defendant was found guilty at trial, and was
sentenced to twenty-five to fifty years’ imprisonment. Id. At the PCRA
hearing, Steckley’s trial counsel testified that she was unaware of the potential
twenty-five year mandatory minimum sentence. Id. at 830. The PCRA court
granted relief, and this Court, in relevant part, affirmed the PCRA court’s
conclusion that but for trial counsel’s ineffectiveness, defendant would have
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accepted the Commonwealth’s plea offer of two to six years.3 Id. at 830,
834-36.
Here, the PCRA court noted that “[t]estimony demonstrated that
[Appellant] had had numerous meetings with his counsel to discuss the case,
possible witnesses and areas of questioning, as well as the charges and their
consequences.” PCRA Ct. Op. at 2. Accordingly, the PCRA court found that
Appellant’s testimony that trial counsel did not explain the consequences of
going to trial not credible. Id.
Further, the PCRA court explained:
Finally, we were satisfied that [Appellant] failed to demonstrate
that trial counsel was ineffective for not requesting or making a
guilty plea offer. We found that the District Attorney never
extended a plea offer to [Appellant]. Furthermore, there was no
evidence that one would have been made if trial counsel had
requested it. In addition, the evidence clearly established that
trial counsel did not request or make a plea offer because
[Appellant] adamantly maintained his innocence. We cannot find
that [trial c]ounsel is obligated to craft or seek out plea offers
under those circumstances unless affirmatively requested by the
client.[fn5]
We also note that [Appellant] never suggested to his
[fn5]
counsel that he would be interested in a plea offer. We
cannot find that the Sixth Amendment obligates counsel to
pursue plea negotiations under the facts of this case.
[Appellant] has not cited, nor did we find any controlling
authority on the issue. However, we did find persuasive
guidance in U.S. ex rel. Tillman v. Alldredge, 350 F.
Supp. 189, 195-96 (E.D. Pa. 1972).
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3 The Steckley Court reversed the PCRA court’s award of a new trial and
remanded for the Commonwealth “to reoffer the plea proposal” in order to
“neutralize the taint of the constitutional violation.” Steckley, 128 A.3d at
837-38 (citations and footnote omitted, and formatting altered).
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PCRA Ct. Op. at 4 (some footnotes omitted).
Having reviewed the record, the parties’ arguments, and the PCRA
court’s opinion, we conclude that no relief is due. As to the arguable merit
and reasonable basis elements of the Strickland/Pierce test, we cannot
locate, nor has Appellant cited, any controlling authority. Specifically, none
of the cases cited by Appellant hold that when the defendant maintains his
innocence, counsel is ineffective for failing to consult with a client about
initiating plea negotiations and requesting a plea offer from Commonwealth.4
To the contrary, both the Commonwealth and the PCRA court have cited
federal case law rejecting similar claims of ineffectiveness based on the failure
to establish counsel’s deficient performance under the Strickland standard.
See Tillman, 350 F. Supp. at 195-96; Poindexter, 2011 WL 1193022, at *9;
Lerma-Castillo, 2009 WL 2914235, at *6.5 We find these federal cases to
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4 We note the federal court decisions Appellant has cited are distinguishable
from this case on the facts as Booth involved deficient advice not to enter an
open guilty plea, which would have reduced the guideline sentencing range
under the U.S. Sentencing Guidelines, after the defendant rejected a plea offer
that required him to become a cooperating witness. See Booth, 432 F.3d at
544-50. Day involved deficient advice regarding the maximum possible
sentence, resulting in defendant rejecting a plea offer extended by the
government. See Day, 969 F.2d at 44, 47. Moreover, to the extent Appellant
cites Booth and Day to support his position that his awareness of the
consequences of proceeding to trial was relevant, the record here supports
the PCRA court’s factual findings that trial counsel advised Appellant of the
consequences of going to trial. See Mitchell, 105 A.3d at 1265.
5In Poindexter, the court held that “[g]iven Poindexter’s claims of innocence,
counsel’s decision to proceed to trial rather than encourage a guilty plea was
not advice below constitutional standards.” See Poindexter, 2011 WL
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be persuasive in circumstances where the defendant adamantly maintains his
innocence before trial, during trial, and through sentencing. See Arcelay,
190 A.3d at 615 n.12. Therefore, we agree with the PCRA court that Appellant
has not established his claim had arguable merit or that his counsel lacked a
reasonable basis for his actions under Strickland/Pierce standard.
As to prejudice, Appellant has failed to establish a reasonable probability
that a plea offer would have been offered by the Commonwealth, the trial
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. See Steckley, 128 A.3d
at 832. The record supports the PCRA court’s finding that the Commonwealth
did not make a plea offer in this case. See PCRA Ct. Op. at 4. Furthermore,
the record contains no evidence indicating that the Commonwealth would have
made a plea offer if trial counsel had requested one. See McElroy, 665 A.2d
at 816. Lastly, Appellant testified that he would have “most likely” considered
____________________________________________
1193022, at *9. In Lerma-Castillo, the court stated that it “cannot and does
not find [counsel’s] legal assistance deficient because he chose to try [the
defendant’s] case rather than force her to plead guilty, given her unwavering
claims of innocence.” See Lerma-Castillo, 2009 WL 2914235, at *6 (citation
omitted). In Tillman, the court declined to find an attorney “who fails to
explore the possibility of a plea bargain on behalf of a client who insists that
he is innocent[]” ineffective. See Tillman 350 F. Supp. at 195-96. The
decisions of the lower federal courts are not binding on this Court. See
Commonwealth v. Tedford, 960 A.2d 1, 15 (Pa. 2008). However, such
decisions “may be persuasive [authority].” Commonwealth v. Arcelay, 190
A.3d 609, 615 n.12 (Pa. Super. 2018) (citation omitted).
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a plea offer if one was presented to him, not that he definitely would have
accepted a plea offer from the Commonwealth. See N.T., 7/17/19, at 13-14.
Accordingly, Appellant has failed to establish a meritorious
ineffectiveness claim under the Strickland/Pierce standard. For these
reasons, we agree with the PCRA court that no relief is due and affirm the
PCRA court’s denial of Appellant’s PCRA petition. See Ousley, 21 A.3d at
1242.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 03/16/2021
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