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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
MITCHELL SPENCER :
:
Appellant : No. 2585 EDA 2017
Appeal from the PCRA Order July 20, 2017
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0011075-2013
BEFORE: PANELLA, J., NICHOLS, J., and MUSMANNO, J.
MEMORANDUM BY PANELLA, J.: FILED JUNE 21, 2019
Mitchell Spencer appeals from the order entered in the Philadelphia
County Court of Common Pleas dismissing his petition under the Post-
Conviction Relief Act (“PCRA”), 42 PA.C.S.A. §§ 9541-46, without a hearing.
Spencer argues the PCRA court erred in declining to hold an evidentiary
hearing on his claim of ineffective assistance of counsel. We affirm.
On July 9, 2015, Spencer entered into an open guilty plea to robbery,
robbery of a motor vehicle, conspiracy, and possession of a firearm.1 The trial
court sentenced him to an aggregate sentence of five to ten years’
imprisonment. Spencer did not file a post-sentence motion or a direct appeal.
Instead, Spencer filed a timely PCRA petition alleging, in part,
ineffectiveness of guilty plea counsel. Counsel was appointed and filed an
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1 18 Pa.C.S.A. §§ 3701(a)(1)(ii), 3702(a), 903(c), and 6105(a)(1),
respectively.
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amended petition on Spencer’s behalf. Through his amended petition, Spencer
alleged guilty plea counsel was ineffective because he “did not fully explain
the plea offer and recommend[ed] that [Spencer] plead open.” Amended
Petition, 3/27/17, at ¶ 6. After the Commonwealth filed an answer to
Spencer’s petition, the PCRA court issued a Pa.R.Crim.P. 907 notice of its
intent to dismiss the petition without a hearing. Spencer did not file a
response, and the court issued an order dismissing Spencer’s petition. This
timely appeal follows.
On appeal, Spencer contends the PCRA court erred in dismissing his
petition without a hearing. Spencer claims guilty plea counsel erroneously
advised him against taking an earlier plea offer from the Commonwealth in
favor of a less favorable open plea agreement. Spencer alleges this claim
raises questions of fact that should have been resolved through an evidentiary
hearing. Conversely, the Commonwealth highlights Spencer’s failure to proffer
any evidence in support of his claim that a favorable guilty plea was offered
by the Commonwealth prior to Spencer’s open plea agreement.
“The standard of review for an order denying post-conviction relief is
limited to whether the record supports the PCRA court’s determination, and
whether that decision is free of legal error. The PCRA court’s findings will not
be disturbed unless there is no support for the findings in the certified record”
Commonwealth v. Walters, 135 A.3d 589, 591 (Pa. Super. 2016) (citation
omitted).
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Generally, “[t]he PCRA court may dismiss a petition without a hearing
when the court is satisfied that there are no genuine issues concerning any
material fact, the defendant is not entitled to post conviction relief, and no
legitimate purpose would be served by any further proceedings.”
Commonwealth v. Johnson, 139 A.3d 1257, 1273 (Pa. 2016) (citation and
internal quotation mark omitted). When the PCRA court denies a petition
without an evidentiary hearing, we “examine each issue raised in the PCRA
petition in light of the record certified before it in order to determine if the
PCRA court erred in its determination that there were no genuine issues of
material fact in controversy and in denying relief without conducting an
evidentiary hearing.” Commonwealth v. Khalifah, 852 A.2d 1238, 1240
(Pa. Super. 2004) (citation omitted).
Through his PCRA petition, Spencer asserted ineffective assistance of
counsel. “It is well-established that counsel is presumed effective, and a PCRA
petitioner bears the burden of proving ineffectiveness.” Commonwealth v.
Reyes-Rodriguez, 111 A.3d 775, 779-780 (Pa. Super. 2015) (brackets and
citations omitted). To obtain relief on an ineffectiveness claim, a petitioner
must plead and prove by a preponderance of the evidence “[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.A. § 9543(a)(2)(ii).
To prove ineffectiveness, a petitioner must establish his underlying
claim has arguable merit; no reasonable basis existed for counsel’s action or
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failure to act; and he suffered prejudice as a result of counsel’s error. See
Commonwealth v. VanDivner, 178 A.3d 108, 114 (Pa. 2018). A failure to
plead or prove any prong will defeat an ineffectiveness claim. See
Commonwealth v. Grove, 170 A.3d 1127, 1138 (Pa. Super. 2017).
To avoid such a result, counsel must set forth an offer to prove at
an appropriate hearing sufficient facts upon which a reviewing
court can conclude that trial counsel may have, in fact, been
ineffective, However, the controlling factor in determining whether
a petition may be dismissed without a hearing is the status of the
substantive assertions in the petition.
Commonwealth v. Stanley, 632 A.2d 871, 872 (Pa. 1993) (internal citations
and quotation marks omitted).
Instantly, Spencer’s petition provided no information as to the exact
nature of the guilty plea offer from the Commonwealth and made no offer to
prove its alleged favorable terms. In fact, the only reference to this plea
Spencer made in his petition was that guilty plea counsel did not fully explain
the terms of the plea.2 Spencer was required to set forth an offer of facts
supporting his claim in his petition, as an evidentiary hearing “is not meant to
function as a fishing expedition for any possible evidence that may support
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2 In his briefings, Spencer includes more information regarding this alleged
plea offer. Notably, he contends it contained a more favorable sentence than
the sentence he received from the trial court but that plea counsel advised
him against taking it. See Memorandum of Law, 3/27/17, at 2; Appellant’s
Brief, at 15-17 However, as Spencer failed to include any of these assertions
in his actual petition, his pleadings were insufficient. See Commonwealth v.
McBride, 957 A.2d 752, 757-758 (Pa. Super. 2008) (“It is of course
fundamental that matters attached to or contained in briefs are not evidence
and cannot be considered part of the record … on appeal.”)
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some speculative claim of ineffectiveness.” Commonwealth v. Jones, 811
A.2d 994, 1003 n. 8 (Pa. 2002)(citation omitted) (declining to remand for an
evidentiary hearing when appellant asserted counsel did not have a
reasonable basis for his lack of action but failed to make a proffer of evidence
as to counsel’s lack of action). As he failed to set forth this information in his
petition, the court had no basis from which to conclude Spencer’s claim had
arguable merit.
Accordingly, as Spencer is unable to establish his claim had arguable
merit, the PCRA court did not err in dismissing Spencer’s PCRA petition without
a hearing. See Commonwealth v. Williams, 782 A.2d 517, 526 (Pa. Super.
2001) (dismissal of claims appropriate where pleadings insufficient to state a
claim for post-conviction relief).
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/21/2019
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