J-S29036-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
TODD WALKER :
:
Appellant :
: No. 1633 WDA 2015
Appeal from the PCRA Order September 14, 2015
in the Court of Common Pleas of Lawrence County Criminal Division
at No(s): CP-37-CR-0000786-2011
CP-37-CR-0001404-2011
CP-37-CR-0001408-2011
CP-37-CR-0001416-2011
BEFORE: BENDER, P.J.E., PANELLA, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED MAY 27, 2016
Appellant, Todd Walker, appeals from the order of the Lawrence
County Court of Common Pleas denying his timely first Post Conviction Relief
Act1 (“PCRA”) petition. Appellant claims that his prior counsel was
ineffective for failing to investigate his mental health issues before he
pleaded guilty to, inter alia, attempted murder.2 We affirm.
The PCRA court summarized the procedural history of this appeal as
follows:
*
Former Justice specially assigned to the Superior Court.
1
42 Pa.C.S. §§ 9541-9546.
2
18 Pa.C.S. §§ 901(a), 2502.
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At Case No. 786 of 2011 CR [Appellant] was charged
with Criminal Attempt to Commit Homicide (18 Pa.C.S.A.
§901(a)), Aggravated Assault Attempted Serious Bodily
Injury (18 Pa.C.S.A. §2702(a)(1)), Aggravated Assault
Bodily Injury with a Deadly Weapon (18 Pa.C.S.A.
§2702(a)(4)), and Persons Not to Possess Firearms (18
Pa.C.S.A. §6105(a)(1)), arising from the shooting of
Charles Zduniak in New Castle, Lawrence County,
Pennsylvania. [Appellant] proceeded to trial and jury
selection commenced on March 12, 2012. [Appellant]
subsequently entered a guilty plea before the trial began
on March 13, 2012, to the charge of Criminal Attempt to
Commit Homicide, a felony of the first degree. In return,
the Commonwealth recommended a sentence of not less
than 7 1/2 years nor more than 15 years in a state
correctional facility to be followed by 5 years of state
supervised probation. Additionally, at Case No. 1404 of
2011 CR., No. 1408 of 2011, CR. and No. 1416 of 2011,
CR. [Appellant] agreed to plead guilty to one count of
Possession With Intent to Deliver a Controlled Substance
(35 P[.S.] §780-113(a)(30)) at each case in exchange for
the Commonwealth recommending a sentence of not less
than 1 1/2 years nor more than 3 years in a state
correctional facility, which sentences were to run
concurrently with each other and concurrently with case
No. 486 of 2011, CR.
PCRA Ct. Op., 9/14/15, at 2. Appellant entered his pleas to the four cases
following an extensive colloquy on March 13, 2012, and the court imposed
the sentences agreed to by the parties. Thomas Leslie, Esq. (“prior
counsel”), who was the county solicitor at the time, represented Appellant
during the pretrial, plea, and sentencing proceedings. Appellant did not take
a direct appeal.
On December 31, 2012, Appellant filed a timely pro se PCRA petition
claiming prior counsel was ineffective for failing to investigate his mental
health issues. The PCRA court appointed counsel. In March of 2014,
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Appellant filed additional pro se materials, including a request for new
counsel. The court acceded to the request and appointed present counsel.
Appointed PCRA counsel did not amend Appellant’s petition, but appeared on
Appellant’s behalf at evidentiary hearings on March 11 and April 29, 2015, at
which Appellant, his mother, a records custodian, Appellant’s childhood
caseworker, and prior counsel testified. Following the submission of briefs,
the PCRA court denied Appellant’s PCRA petition on September 14, 2015.
Appellant timely filed a notice of appeal and complied with the court’s order
to submit a Pa.R.A.P. 1925(b) statement.
Appellant presents two questions on appeal.
Whether the [PCRA] court erred when it found that [prior]
counsel was not ineffective for failing to investigate
[Appellant’s] mental health history?
Whether the [PCRA] court erred when it found that [prior]
counsel was not ineffective for failing to adequately
represent [Appellant] during his trial, plea, and
sentencing?
Appellant’s Brief at 4.
We address Appellant’s two arguments jointly. He contends prior
counsel was ineffective for failing “to listen to or adequately communicate
with [him].” Id. at 11. Appellant emphasizes his mother’s PCRA hearing
testimony that she apprised prior counsel of his mental health history,
“wondered if his diagnoses had anything to do with his troubles[,]” and
informed him that Human Services “‘had a folder as thick as a New York City
phone book’” regarding Appellant. Id. at 17. He notes he established that
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records of treatment at Human Services when he was a juvenile and counsel
failed to request those records or contact his caseworker. Id. at 12, 19.
Appellant further asserts that prior counsel induced him to plead guilty
and failed to ensure his plea was knowing and voluntary. According to
Appellant, he entered into the plea because “he thought his attorney told
him he did not have a choice.” Id. at 27. Appellant relies on his PCRA
hearing testimony that prior counsel “led him to believe that he had already
been found guilty and that he was given seven to fifteen years.” Id. at 26.
He notes he initially asserted he “wasn’t trying to kill” the victim during the
oral plea colloquy, but then admitted to the factual allegations set forth by
the Commonwealth after an off-the-record discussion with prior counsel. Id.
at 22. Appellant again notes his history of mental health treatment and
observes that he gave inaccurate answers on the written guilty plea
colloquy, indicating “N/A” to the question regarding treatment for mental
illness and “not” to the question regarding a mental illness. Id. at 21. He
thus suggests his plea was involuntarily and unknowingly entered. For the
reasons that follow, we agree with the PCRA court that no relief is due.
The principles governing our review are as follows:
Our standard of review of the denial of a PCRA petition is
limited to examining whether the court’s determination is
supported by the evidence of record and free of legal error.
This Court grants great deference to the findings of the
PCRA court if the record contains any support for those
findings. Further, the PCRA court’s credibility
determinations are binding on this Court, where there is
record support for those determinations.
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To prevail on a claim alleging counsel’s ineffectiveness
under the PCRA, [a petitioner] must demonstrate (1) that
the underlying claim is of arguable merit; (2) that
counsel’s course of conduct was without a reasonable basis
designed to effectuate his client’s interest; and (3) that he
was prejudiced by counsel’s ineffectiveness, i.e. there is a
reasonable probability that but for the act or omission in
question the outcome of the proceedings would have been
different.
It is clear that a criminal defendant’s right to effective
counsel extends to the plea process, as well as during trial.
However, [a]llegations 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. 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.
Commonwealth v. Willis, 68 A.3d 997, 1001-02 (Pa. Super. 2013)
(citations omitted).
It is the duty of the lawyer to conduct a prompt
investigation of the circumstances of the case and explore
all avenues leading to facts relevant to guilt. This
duty to investigate exists even if counsel thinks that the
particular avenue in question offers little chance of leading
to a successful defense.
Commonwealth v. McCaskill, 468 A.2d 472, 478 (Pa. Super. 1983)
(citations and quotation marks omitted).
We have reviewed Appellant’s arguments, the record, and the relevant
law and discern no basis upon which to conclude that the PCRA court erred
or abused its discretion when denying Appellant’s claims of ineffective
assistance of counsel. As noted by the PCRA court, a diminished capacity
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defense based on Appellant’s mental health treatment history was
inconsistent with his insistence that he did not shoot at the victim. See
PCRA Ct. Op. at 7-8. Moreover, the PCRA court, which also presided over
the guilty plea and sentencing proceedings, had ample opportunity to
observe Appellant. Thus, we are bound by the court’s decision to credit prior
counsel’s testimony and finding that Appellant did not appear to be suffering
from a mental condition that would prevent him from understanding the plea
proceedings and voluntarily entering a plea. Id. at 11-12; Willis, 68 A.3d
at 997, 1001.
We further note that Appellant has not defined the precise mental
condition on which he bases his claims for relief. At the PCRA hearing,
Appellant’s mother testified Appellant received numerous services as a child
and was hospitalized at “Sharon Regional” when he was in sixth or seventh
grade. Id. She referred to his being prescribed Ritalin and then Adderall
during that time. N.T., 3/11/15, at 55. Appellant initially testified to being
treated for anxiety and depression and being prescribed “Wellbutrin” and a
medication with “a crazy name.” Id. at 90. He, however, later indicated he
was treated for “ADHD” and a learning disability. Id. at 91. When asked by
appointed PCRA counsel whether he was treated for “oppositional defiant
disorder,” Appellant replied, “I don’t even know what that means.” Id.
Appellant did not seek treatment after 2002. Significantly, Appellant
adduced no additional evidence in support of a claim that he was suffering
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from a mental illness at the time of the incident or plea that would have
precluded him from forming a specific intent to kill or entering a knowing,
voluntary, and intelligent plea. Thus, Appellant has not demonstrated that
an investigation into his mental health treatment history would have
produced evidence favorable to a trial defense or a collateral challenge to his
guilty plea.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/27/2016
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Com. v. Walker, T.
Combined Opinion