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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
BRIAN WATKINS :
:
Appellant : No. 2486 EDA 2019
Appeal from the Order Entered August 1, 2019
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0003589-2014
BEFORE: KUNSELMAN, J., KING, J., and COLINS, J.*
MEMORANDUM BY KING, J.: FILED SEPTEMBER 09, 2020
Appellant, Brian Watkins, appeals from the order entered in the
Philadelphia County Court of Common Pleas, which denied his first petition
filed under the Post Conviction Relief Act (“PCRA”) at 42 Pa.C.S.A. §§ 9541-
9546. For the following reasons, we vacate and remand for further
proceedings.
In its opinion, the PCRA court sets forth the relevant facts and
procedural history of this case as follows:
On February 14, 2014, Officers Ladarza and Tritz…were on
patrol in the area of 6200 Vine Street, located in the City
and County of Philadelphia, Pennsylvania. The officers
observed a blue Chevrolet Malibu traveling from 300 Horton
Street and turn westbound onto Vine Street without using
its turn signal, in violation of 75 Pa.C.S.A. § 3334(b). Officer
Tritz, while operating a full-marked police vehicle,
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* Retired Senior Judge assigned to the Superior Court.
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conducted a U-turn with the purpose of conducting a traffic
stop on the Chevrolet Malibu. After activating the patrol
vehicle’s overhead emergency lights, the Chevrolet Malibu
pulled over without incident in [the] 5700 block of West
Girard Avenue.
Upon stopping the Malibu, the officers exited their
vehicle…to make contact with the Malibu’s driver. Appellant
was identified as the Malibu’s driver and had two children in
the rear seats. As Officer Ladarza reached the Malibu’s
passenger window, he observed the rear sight and bottom
handle of a firearm in plain view under the passenger seat’s
floor mat. Officer Ladarza signaled to his partner there was
a firearm and Officer Tritz removed the driver. Appellant
was detained and, in a search incident to arrest, officers
located one bag of heroin. The officers recovered a black 9-
millimeter Stallared Arms firearm from under the
passenger’s side floor mat. Appellant was placed under
arrest and charged with VUFA violations and possession of
a controlled substance.
After a preliminary hearing, Appellant appeared before the
Honorable Rayford Means on July 29, 2014, at which the
Commonwealth offered a guilty plea of 4-8 years’
confinement. Appellant rejected the offer and instead
elected to proceed to trial. Appellant filed a counseled
Motion to Suppress, which was denied by the court on
February 23, 2015. After the Motion to Suppress was
denied, Appellant entered an open guilty plea [to possession
of a firearm prohibited, firearms not to be carried without a
license, carrying a firearm in public in Philadelphia, and
possession of a controlled substance] on that same date.
On May 29, 2015, Appellant was sentenced by this court to
an aggregate prison term of six to twelve years’
confinement. A timely post-sentence Motion for
Reconsideration of Sentence was filed that [was] ultimately
denied by operation of law on October 7, 2015. Appellant
did not file a direct appeal to the Superior Court.
(PCRA Court Opinion, filed November 6, 2019, at 1-2) (internal citations
omitted).
On March 21, 2016, Appellant timely filed pro se his first PCRA petition.
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The court subsequently appointed counsel, who filed an amended petition on
May 14, 2018. In the petitions, Appellant argued plea counsel was ineffective
for advising him to reject the Commonwealth’s initial plea offer of 4 to 8 years’
imprisonment and to file a suppression motion instead, the denial of which
ultimately resulted in a lengthier sentence for Appellant. Appellant attached
a letter from plea counsel, dated May 20, 2014, in support of his argument.
The letter reads as follows:
Dear Bree,
Please find enclosed a copy of your discovery. As you will
see, the pictures from your Instagram account are not
helpful at all. This essentially precludes us from taking the
case to trial under the theory that the gun isn’t yours and
that you had no knowledge of it previous to the stop by
police.
Obviously, going forward you need to be careful what you
post on social media. At this point I think it is best to
proceed with a suppression motion requiring [your
daughter,] Breeanna[,] to testify, as she will be the most
compelling witness. That is your best bet at this point. Your
next court date is June 12th, 2014. I will file the motion prior
to that date and ask that the motion be listed for a court
date.
The offer they have made on the new case is 4-8 years plus
a tail. Even if the suppression isn’t successful, I think you
would get a better sentence than that in front of Judge
Means after the motion is litigated. Alternatively, we could
combine everything in front of Judge Brinkley for your
violation and the new case and put on the mitigation
regarding the robbery, etc. Judge Brinkley has you listed
for a violation on the 12th as well. I am not sure how much
time she has to work with because I am pretty sure you are
close to maxing out. The Public Defender represents you on
that matter. I spoke with her in depth about a
comprehensive game plan so that we can get you home as
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soon as possible. If you have any information you would
like to share with me, please write me. I will discuss
everything more in depth with you when I see you at court.
Best,
[Plea Counsel]
(See PCRA Petition, 3/21/16, attachment 1; Amended PCRA Petition, 5/14/18,
Exhibit A). Appellant also attached a copy of the Commonwealth’s “SMART
room offer sheet” dated April 16, 2014, of 4 to 8 years’ imprisonment, plus 3
years’ probation, in exchange for Appellant’s guilty plea to possession of a
firearm prohibited and firearms not to be carried without a license. (See PCRA
Petition, 3/21/16, attachment 2; Amended PCRA Petition, 5/14/18, Exhibit B).
On May 2, 2019, the PCRA court issued notice of its intention to dismiss
Appellant’s petition without an evidentiary hearing, pursuant to Pa.R.Crim.P.
907. Appellant did not file a response, and the court dismissed the petition
on August 1, 2019. On August 22, 2019, Appellant timely filed a notice of
appeal. On September 5, 2019, 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 on September 26, 2019.
Appellant raises one issue on appeal:
Did the PCRA court incorrectly dismiss [A]ppellant’s PCRA
petition without conducting an evidentiary hearing into
[plea] counsel’s ineffective advice in rejecting an offer from
the Commonwealth to plead guilty for an offer of 4-8 years
of incarceration[?]
(Appellant’s Brief at 6).
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On appeal, Appellant argues plea counsel was ineffective for advising
Appellant to reject the Commonwealth’s initial plea offer of 4 to 8 years’
incarceration and to pursue a motion to suppress instead. Appellant contends
this advice caused Appellant to later plead guilty and receive a greater
sentence of 6 to 12 years’ imprisonment. Appellant maintains that, even if
the court believed counsel had a valid reason for giving Appellant that advice,
the proper approach should have been to conduct an evidentiary hearing to
determine whether counsel’s advice was reasonable prior to dismissing
Appellant’s petition. Appellant concludes this Court should vacate the PCRA
court’s dismissal of Appellant’s petition and remand for an evidentiary hearing.
We are inclined to agree.
Our standard of review of the denial of a PCRA petition is limited to
examining whether the evidence of record supports the court’s determination
and whether its decision is free of legal error. Commonwealth v. Conway,
14 A.3d 101 (Pa.Super. 2011), appeal denied, 612 Pa. 687, 29 A.3d 795
(2011). 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). We give no such deference, however, to the court’s legal conclusions.
Commonwealth v. Ford, 44 A.3d 1190 (Pa.Super. 2012).
Further, a petitioner is not entitled to a PCRA hearing as a matter of
right; the PCRA court can decline to hold a hearing if there is no genuine issue
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concerning any material fact, the petitioner is not entitled to relief, and no
purpose would be served by any further proceedings. Commonwealth v.
Wah, 42 A.3d 335 (Pa.Super. 2012). “A reviewing court on appeal must
examine each of the issues raised in the PCRA petition in light of the record in
order to determine whether the PCRA court erred in concluding that there
were no genuine issues of material fact and in denying relief without an
evidentiary hearing.” Commonwealth v. Smith, 121 A.3d 1049, 1052
(Pa.Super. 2015), appeal denied, 635 Pa. 763, 136 A.3d 981 (2016) (quoting
Commonwealth v. Derrickson, 923 A.2d 466, 468 (Pa.Super. 2007), appeal
denied, 594 Pa. 685, 934 A.2d 72 (2007)).
The law presumes counsel has rendered effective assistance.
Commonwealth v. Williams, 597 Pa. 109, 950 A.2d 294 (2008). When
asserting a claim of ineffective assistance of counsel, a petitioner is required
to make the following showing: (1) the underlying claim is of arguable merit;
(2) counsel had no 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.
Commonwealth v. Kimball, 555 Pa. 299, 312, 724 A.2d 326, 333 (1999).
The failure to satisfy any prong of the test for ineffectiveness of counsel will
cause the claim to fail. Williams, supra.
“The threshold inquiry in ineffectiveness claims is whether the
issue/argument/tactic which counsel has foregone and which forms the basis
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for the assertion of ineffectiveness is of arguable merit….” Commonwealth
v. Pierce, 537 Pa. 514, 524, 645 A.2d 189, 194 (1994). “Counsel cannot be
found ineffective for failing to pursue a baseless or meritless claim.”
Commonwealth v. Taylor, 933 A.2d 1035, 1042 (Pa.Super. 2007), appeal
denied, 597 Pa. 715, 951 A.2d 1163 (2008) (quoting Commonwealth v.
Poplawski, 852 A.2d 323, 327 (Pa.Super. 2004)).
Once this threshold is met we apply the “reasonable basis”
test to determine whether counsel’s chosen course was
designed to effectuate his client’s interests. If we conclude
that the particular course chosen by counsel had some
reasonable basis, our inquiry ceases and counsel’s
assistance is deemed effective.
Pierce, supra at 524, 645 A.2d at 194-95 (internal citations omitted).
Prejudice is established when [a defendant] demonstrates
that counsel’s chosen course of action had an adverse effect
on the outcome of the proceedings. The defendant must
show that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding
would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the
outcome. In [Kimball, supra], we held that a “criminal
defendant alleging prejudice must show that counsel’s
errors were so serious as to deprive the defendant of a fair
trial, a trial whose result is reliable.”
Commonwealth v. Chambers, 570 Pa. 3, 21-22, 807 A.2d 872, 883 (2002)
(some internal citations and quotation marks omitted).
“Generally, counsel has a duty to communicate plea bargains to his
client, as well as to explain the advantages and disadvantages of the offer.”
Commonwealth v. Marinez, 777 A.2d 1121, 1124 (Pa.Super. 2001), appeal
denied, 567 Pa. 739, 788 A.2d 374 (2001). “Failure to do so may be
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considered ineffectiveness…if the defendant is sentenced to a longer prison
term than the term he would have accepted under the plea bargain.” Id.
Furthermore, our United States Supreme Court has explained:
To show prejudice from ineffective assistance of counsel
where a plea offer has lapsed or been rejected because of
counsel’s deficient performance, defendants must
demonstrate a reasonable probability they would have
accepted the earlier plea offer had they been afforded
effective assistance of counsel. Defendants must also
demonstrate a reasonable probability the plea would have
been entered without the prosecution canceling it or the trial
court refusing to accept it, if they had the authority to
exercise that discretion under state law. To establish
prejudice in this instance, it is necessary to show a
reasonable probability that the end result of the criminal
process would have been more favorable by reason of a plea
to a lesser charge or a sentence of less prison time.
…In a case…where a defendant pleads guilty to less
favorable terms and claims that ineffective assistance of
counsel caused him to miss out on a more favorable earlier
plea offer, Strickland’s[1] inquiry into whether “the result of
the proceeding would have been different,” requires looking
not at whether the defendant would have proceeded to trial
absent ineffective assistance but whether he would have
accepted the offer to plead pursuant to the terms earlier
proposed.
Missouri v. Frye, 566 U.S. 134, 147-48, 132 S.Ct. 1399, 1409-10, 182
L.Ed.2d 379, ___ (2012) (internal citations omitted).
Instantly, we must initially address the PCRA court’s contention that
Appellant’s PCRA petition is deficient where Appellant failed to procure a
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1 Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674
(1984).
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witness certification from plea counsel. (See PCRA Court Opinion at 5-6). In
support of its assertion, the PCRA court cites Section 9545(d)(1) of the PCRA,
which provides, in pertinent part:
§ 9545. Jurisdiction and proceedings
* * *
(d) Evidentiary hearing.—
(1) The following apply:
(i) Where a petitioner requests an evidentiary
hearing, the petition shall include a signed certification
signed by each intended witness stating the witness’s name,
address, date of birth and substance of testimony and shall
include any documents material to that witness’s testimony.
(ii) If a petitioner is unable to obtain the signature of
a witness under subparagraph (i), the petitioner shall
include a certification, signed by the petitioner or counsel,
stating the witness’s name, address, date of birth and
substance of testimony. …
(iii) Failure to substantially comply with the
requirements of this paragraph shall render the proposed
witness’s testimony inadmissible.
42 Pa.C.S.A. § 9545(d)(1). See also Pa.R.Crim.P. 902(A)(15) (discussing
content of PCRA petition and request for evidentiary hearing).
It is within a PCRA court’s discretion to decline to hold an evidentiary
hearing where a petitioner fails to provide any certification regarding potential
witnesses. Commonwealth v. Brown, 767 A.2d 576, 583 (Pa.Super. 2001).
Significantly, however, “it is improper to affirm a PCRA court’s decision on the
sole basis of inadequate witness certifications where the PCRA court did not
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provide notice of the alleged defect.” Commonwealth v. Pander, 100 A.3d
626, 642 (Pa.Super. 2014) (en banc), appeal denied, 631 Pa. 712, 109 A.3d
679 (2015) (citing Pa.R.Crim.P. 905(B);2 Commonwealth v. Robinson, 596
Pa. 580, 947 A.2d 710 (2008) (per curiam order)).
Here, Appellant attached a “Certification of Intended Witnesses” to his
amended PCRA petition. This certification lists the names and addresses of
two potential witnesses: Appellant and plea counsel. Absent from the
certification, however, is any discussion of plea counsel’s proposed testimony.
Nevertheless, the record confirms the PCRA court failed to provide Appellant
with notice of any defect in his witness certification prior to the court’s entry
of Rule 907 notice and ultimate dismissal of the petition. Therefore, we decline
to deny PCRA relief on this basis. See Pa.R.Crim.P. 905 (B); Robinson,
supra; Pander, supra.
Turning to the merits of Appellant’s claim, the record demonstrates that
the Commonwealth offered Appellant a plea bargain on April 16, 2014, of 4 to
8 years’ incarceration, plus 3 years’ probation, in exchange for a plea to one
count each of possession of a firearm prohibited and firearms not to be carried
without a license. On May 20, 2014, plea counsel wrote Appellant the letter
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2 Rule 905(B) states: “When a petition for post-conviction collateral relief is
defective as originally filed, the judge shall order amendment of the petition,
indicate the nature of the defects, and specify the time within which an
amended petition shall be filed. If the order directing amendment is not
complied with, the petition may be dismissed without a hearing.” Pa.R.Crim.P.
905(B).
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advising him to reject the plea offer. Appellant rejected the Commonwealth’s
offer on July 29, 2014. In 2015, Appellant filed a suppression motion, which
the court denied. Appellant then pled guilty on February 23, 2015, to
possession of a firearm prohibited, firearms not to be carried without a license,
carrying a firearm in public in Philadelphia, and possession of a controlled
substance, and the court sentenced Appellant to 6 to 12 years’ incarceration.
In his timely PCRA petitions, Appellant submitted the letter from plea
counsel to show he pled guilty to greater charges and received a longer
sentence due to plea counsel’s advice to reject the initial plea offer and to
pursue an ultimately unsuccessful suppression motion. In its opinion denying
relief, the PCRA court explained that plea counsel’s letter to Appellant offered
reasonable advice and defense strategies. (See PCRA Court Opinion at 6-7).
Nevertheless, plea counsel’s letter does not articulate the legal basis for
why counsel believed the suppression motion would be successful, or explain
counsel’s reasons for believing Appellant would face a shorter sentence before
Judge Means, even if the suppression motion proved unsuccessful.
Additionally, although plea counsel communicated the advantages of rejecting
the plea offer (i.e., winning the suppression motion or being sentenced to a
lower sentence by Judge Means even if the suppression motion was denied),
counsel did not explain in the letter the possible disadvantages of rejecting
the offer (i.e., facing greater charges than the Commonwealth agreed to in
the initial plea offer and facing a potentially longer sentence). See Marinez,
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supra. Consequently, the court should have conducted an evidentiary
hearing on the reasonableness of counsel’s strategy. See Commonwealth
v. Cousar, 638 Pa. 171, 191-92, 154 A.3d 287, 299 (2017) (expressing
preference for evidentiary hearing on reasonableness of counsel’s actions or
inactions before deciding that counsel’s strategy was, in fact, reasonable).
The PCRA court also decided Appellant failed to satisfy the prejudice
prong of the ineffectiveness test, stating: “Appellant’s bald assertions alone
that plea counsel’s allegedly deficient performance through her instructions
cannot stand as proof that, but for counsel’s performance, the result of the
proceeding would have been different.” (PCRA Court Opinion at 6). We
disagree. Consistent with our Supreme Court’s dictates, the analysis of the
prejudice prong in this case “requires looking not at whether the defendant
would have proceeded to trial absent ineffective assistance but whether he
would have accepted the offer to plead pursuant to the terms earlier
proposed.” See Frye, supra. See also Marinez, supra. Here, Appellant
properly pled that had counsel advised him not to reject the initial plea offer,
he would have accepted it.3 To the extent plea counsel could rebut that claim,
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3 We observe that on the copy of the Commonwealth’s “SMART room offer
sheet” attached to Appellant’s PCRA petitions, Appellant checked off the line
to “accept” the offer and signed his name with a date of May 29, 2015—well
beyond the date Appellant entered the ultimate guilty plea in this case.
Although the PCRA court decided the inconsistencies in the dates diminished
the evidentiary value of the document, the Commonwealth does not dispute
the validity of the offer sheet. Rather, it appears Appellant either initially
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that issue should be decided at an evidentiary hearing where the PCRA court
has the opportunity to make necessary credibility determinations. See
Cousar, supra. Based upon the foregoing, we vacate the order dismissing
Appellant’s first PCRA petition and remand for an evidentiary hearing.
Order vacated. Case remanded for evidentiary hearing. Jurisdiction is
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/9/20
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accepted the offer on May 29, 2014 (and the date was a typographical error)
prior to rejecting the offer on July 29, 2014, or Appellant somehow attempted
to resurrect the initial plea offer long after it had expired by belatedly
“accepting” it. In any event, this inconsistency can be examined at an
evidentiary hearing.
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