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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
WALTER DONALD BRADSHAW :
:
Appellant : No. 561 WDA 2020
Appeal from the PCRA Order Entered July 12, 2019
In the Court of Common Pleas of Bedford County Criminal Division at
No(s): CP-05-CR-0000445-2010
BEFORE: BOWES, J., McCAFFERY, J., and COLINS, J.*
DISSENTING MEMORANDUM BY COLINS, J.: FILED FEBRUARY 10, 2021
I respectfully dissent, because I believe that Appellant failed to present
argument about the “prejudice” prong of the ineffective assistance of counsel
test.
Counsel is presumed to be effective.
To overcome this presumption, a PCRA petitioner must plead and
prove that: (1) the underlying legal claim is of arguable merit;
(2) counsel’s action or inaction lacked any objectively reasonable
basis designed to effectuate his client’s interest; and
(3) prejudice, to the effect that there was a reasonable probability
of a different outcome if not for counsel’s error.
A failure to satisfy any of the three prongs of this test requires
rejection of a claim of ineffective assistance.
Commonwealth v. Medina, 209 A.3d 992, 1000 (Pa. Super. 2019) (internal
brackets, citations, and quotation marks omitted) (some additional
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* Retired Senior Judge assigned to the Superior Court.
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formatting), reargument denied (July 17, 2019). The Majority fails to
acknowledge the absence of any discussion by Appellant of this “prejudice”
prong of the ineffectiveness test, choosing instead to focus entirely on whether
a more complete evidentiary record could establish the “arguable merit”
prong. Majority Memorandum at 6-7. In fact, the Majority appears to conflate
the question of whether an appellant has established an underlying legal claim
of arguable merit with the separate and distinct requirement that an appellant
must plead how he was prejudiced by counsel’s alleged error. Compare id.
at 6-7 & 8 n.3 with Medina, 209 A.3d at 1000.
Appellant’s brief, at 24, 30, relies on Commonwealth v. Napper, 385
A.2d 521, 524 (Pa. Super. 1978), which states: “Defense counsel has a duty
to communicate to his client, not only the terms of a plea bargain offer, but
also the relative merits of the offer compared to the defendant’s chances at
trial.” Appellant’s brief, at 29-32, 34, and the Majority Memorandum, at 7,
also reference Commonwealth v. Copeland, 554 A.2d 54, 61 (Pa. Super.
1988), for the principle that a defendant is entitled to an evidentiary hearing
on a “claim that trial counsel was ineffective for failing to disclose to him that
a plea agreement had been offered by the Commonwealth.”
However,
although Napper analyzes a post-conviction claim of [ineffective
assistance of counsel], it pre-dates our Supreme Court’s
recognition that “the defendant must show that the deficient
performance prejudiced the defense [by showing] that
counsel’s errors were so serious as to deprive the defendant of a
fair trial, a trial whose result is reliable.” Commonwealth v.
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Pierce, 515 Pa. 153, 527 A.2d 973, 975 (1987) (citing Strickland
v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d
674 (1984)); see also Commonwealth v. Kimball, 555 Pa. 299,
724 A.2d 326, 330 (1999) (analyzing prejudice requirement under
Pierce) (“[A] successful ineffective assistance of counsel claim
requires a showing by the defendant that, but for counsel’s act or
omission, the outcome of the proceedings would have been
different.”). Hence, while Copeland itself, decided in 1989,
recognized the imperative for the defendant’s satisfaction of the
prejudice prong, the discussion in Napper on which it relied . . .
did not. What remains then to be satisfied here is the mandate of
Pierce and its progeny that the defendant establish the prejudice
occasioned by the act or omission he asserts, namely, counsel’s
failure to advise him expressly concerning the prospects of his
defense and desirability of the Commonwealth’s initial offer.
Commonwealth v. Chazin, 873 A.2d 732, 736 (Pa. Super. 2005) (emphasis
added).
Consequently, Appellant still had a duty to plead the prejudice prong
sufficiently – even to contend what prejudice he believes could be established
once the record were more complete. Nevertheless, Appellant does not argue
that he suffered prejudice due to trial defense counsel’s alleged failure to
inform him that a plea agreement had been offered by the Commonwealth.
In his brief, he quotes two cases mentioning prejudice, but, beyond these
boilerplate references, he provides no analysis applying this law to his appeal.
See Appellant’s Brief at 5, 30.
Assuming Appellant’s assertion that “it is evident that accepting a plea
offer could have resulted in a lower sentence[,]” id. at 31, may be construed
as a claim of prejudice, we note that Appellant merely maintains that such an
offer could have resulted in a lesser sentence, not that there was “a
reasonable probability of a different outcome if not for counsel’s error.”
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Medina, 209 A.3d at 1000; see also Commonwealth v. Steckley, 128 A.3d
826, 835 (Pa. Super. 2015) (there must “be a reasonable probability that the
sentence under the offer’s terms would have been less severe than the
sentence actually imposed” (citation and internal quotation marks omitted)).
Accordingly, Appellant’s contention fails to rise to the level of prejudice
required for an ineffective assistance of counsel claim. Medina, 209 A.3d at
1000.
For the reasons given above, even if Appellant had been permitted to
present additional witnesses at his evidentiary hearing and if all of those
witnesses had testified that Appellant’s trial defense counsel had failed to
inform him about offers of plea agreements made by the Commonwealth,
Appellant has still failed to plead that he was prejudiced by these alleged
failures to the effect that there was a reasonable probability of a different
outcome if not for counsel’s alleged error. Unless Appellant had pleaded this
prejudice prong sufficiently, there is no reason to reach the question of the
sufficiency of the evidentiary record.
Appellant’s claims thereby merit no relief. Having discerned no error of
law, I would affirm the order below. See id. at 996. Thus, I dissent.
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