J-S01036-20


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37


    COMMONWEALTH OF                            :   IN THE SUPERIOR COURT OF
    PENNSYLVANIA,                              :         PENNSYLVANIA
                                               :
                  Appellee                     :
                                               :
                      v.                       :
                                               :
    QUINZELL REDDICK,                          :
                                               :
                 Appellant                     :   No. 2195 EDA 2019

            Appeal from the PCRA Order Entered February 8, 2019
             in the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0009191-2011

BEFORE:      BOWES, J., KUNSELMAN, J. and STRASSBURGER, J.*

MEMORANDUM BY STRASSBURGER, J.:                           FILED MARCH 06, 2020

        Quinzell Reddick (Appellant) appeals nunc pro tunc from the order

entered on February 8, 2019, which dismissed his petition filed under the

Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.

        Appellant was charged with, inter alia, first-degree murder for the

shooting death of Correal Combs (the decedent), as well as attempted

murder in connection with shooting Erica Rosa, both of which occurred on

January 12, 2011.1 On December 11, 2012, a jury was selected to hear this
____________________________________________


1 According to the Commonwealth, the decedent was driving a car, Rosa was
in the passenger seat, and Appellant was seated in the rear. “Moments
before the shooting, the decedent stopped the car and both men stepped
outside the car in order to have a drug related conversation. It was then
that [Appellant] pulled out a gun and shot [the decedent] multiple times,
and then raised his gun and shot [] Rosa and she pled for mercy.”
Commonwealth’s Motion to Obtain DNA Samples for Comparison Purposes,
9/13/2012, at ¶ 4; see also, N.T., 12/12/2012, at 68-69.


*   Retired Senior Judge assigned to the Superior Court.
J-S01036-20



case.    The next day, Appellant entered into a negotiated guilty plea and

pleaded guilty to third-degree murder, attempted murder, carrying a firearm

without a license, and possession of an instrument of crime. In exchange,

the Commonwealth agreed to drop the first-degree murder charge and

recommend a sentence of 25 to 50 years of incarceration.       The trial court

conducted a thorough colloquy of Appellant and accepted the plea.

Appellant then asked for sentencing to be deferred for family reasons related

to issues with being in county custody. N.T., 12/12/2012, at 75. The trial

court agreed to this request, and explained to Appellant that his chances of

withdrawing the plea at the time of sentencing were extremely limited. Id.

at 76.    The trial court heard two victim impact statements and informed

Appellant that she was accepting the Commonwealth’s recommendation of a

25-to-50-year sentence. Id. at 89.

        Sentencing was scheduled for February 7, 2013.           The parties

appeared, and counsel for Appellant told the trial court that Appellant was

requesting to withdraw his guilty plea and go forward with trial. Appellant

explained to the trial court that he was coerced by counsel into pleading

guilty. N.T., 2/7/2013, at 9. He requested that the trial court allow him “to

maintain [his] innocence.” Id. at 10. The trial court denied the motion and

sentenced Appellant to 25 to 50 years of incarceration. Id. at 28-29.

        Appellant, through newly-appointed counsel, timely filed a notice of

appeal to this Court. On appeal, Appellant argued that the trial court erred

in denying his motion to withdraw his guilty plea by “disregarding [his] claim


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of innocence.” Commonwealth v. Reddick, 106 A.3d 155 (Pa. Super.

2014) (unpublished memorandum at 2).              This Court concluded that

Appellant waived this issue by failing to raise it specifically in his Pa.R.A.P.

1925(b) statement. Id. at 3. Thus, this Court affirmed Appellant’s judgment

of sentence, and our Supreme Court denied Appellant’s petition for

allowance of appeal. Id., appeal denied, 106 A.3d 679 (Pa. 2015).

      Appellant pro se timely filed a PCRA petition. Counsel was appointed,

and an amended petition was filed raising claims of 1) ineffective assistance

of direct appeal counsel for failing to preserve the issue on appeal, and 2)

ineffective assistance of trial counsel for failing to file a written motion to

withdraw the guilty plea prior to sentencing and clearly articulate Appellant’s

actual innocence claim.

      The PCRA court heard argument on this petition on September 29,

2017, to consider whether 1) to reinstate Appellant’s right to direct appeal

nunc pro tunc due to direct appeal counsel’s ineffectiveness, or 2) to

consider the trial-counsel-ineffectiveness claims pursuant to the PCRA. See

generally N.T., 9/29/2017. The PCRA court ordered the parties to brief the

issues and held a hearing on May 14, 2018.              At that hearing, the

Commonwealth conceded that Appellant was entitled to the reinstatement of

his direct appeal rights nunc pro tunc. N.T., 5/14/2018, at 7. However, it

was PCRA counsel’s position that because Appellant would not prevail on

direct appeal, Appellant should waive his right to a direct appeal in favor of

pursuing the trial-counsel-ineffectiveness claims at the PCRA court. Id. at 8.


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Appellant elected to proceed with the PCRA claims instead of pursuing a

direct appeal. Id. at 10. Appellant was informed that even if he were not to

prevail on his PCRA claims, he could not then revive his direct appeal claims.

Id. at 9.

       On December 14, 2018, the PCRA court issued notice of its intent to

dismiss Appellant’s PCRA petition without a hearing pursuant to Pa.R.Crim.P.

907. Appellant did not respond, and on February 8, 2019, the PCRA court

dismissed the petition. This appeal followed.2,3

       On appeal, Appellant sets forth three questions for our review. See

Appellant’s Brief at 5.4 We begin with Appellant’s claim that the PCRA court

erred in denying relief because trial counsel was ineffective for failing to file

a requested “formal motion to withdraw the plea … because [Appellant] was
____________________________________________
2  On April 4, 2019, Appellant, through counsel, filed a PCRA petition
asserting that counsel had neglected to file timely a notice of appeal from
the February 8, 2019 order. Counsel, recognizing the petition was a second,
untimely PCRA petition, asserted the newly-discovered fact of his own failure
to file the appeal and his abandonment of Appellant as an exception to the
timeliness requirements. The PCRA court granted that petition, and this
appeal followed. See Commonwealth v. Bennett, 930 A.2d 1264 (Pa.
2007).

3 The PCRA court did not direct Appellant to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b). The PCRA court
relies on its February 8, 2019 opinion, filed along with its Rule 907 notice, in
compliance with Pa.R.A.P. 1925(a).

4 We note that despite asking for two extensions of time, the Commonwealth
did not file a brief on appeal in this case by the time this case was submitted
to this panel for its consideration on January 6, 2020. On February 4, 2020,
the Commonwealth requested that this Court consider its brief filed the
same day. We deny that request as moot.


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innocent.” Id. at 20. According to Appellant, he informed trial counsel well

in advance of formal sentencing that Appellant wished to withdraw the plea,

yet trial counsel never filed a motion and waited until sentencing to raise the

issue. Id. at 20-21.     Then, according to Appellant, at sentencing, trial

counsel did not adequately advocate the reasons for withdrawal, particularly

Appellant’s claim of actual innocence. Id. at 21. Appellant contends he was

prejudiced because of trial counsel’s inadequate performance.

      “Our standard of review for issues arising from the denial of PCRA

relief is well-settled. We must determine whether the PCRA court’s ruling is

supported by the record and free of legal error.” Commonwealth v.

Johnson, 179 A.3d 1153, 1156 (Pa. Super. 2018).

      In order for Appellant to prevail on a claim of ineffective
      assistance of counsel, he 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. Appellant must demonstrate:
      (1) the underlying claim is of arguable merit; (2) that counsel
      had no reasonable strategic basis for his or her 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. The petitioner bears the
      burden of proving all three prongs of the test.

Commonwealth v. Patterson, 143 A.3d 394, 397-98 (Pa. Super. 2016)

(internal citations omitted).

      First, we dispose of Appellant’s claim that a formal, written motion

would have yielded a different result. This Court has specifically held that

where trial counsel has failed to file a written motion to withdraw a guilty


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plea, yet the defendant had the opportunity to present the issue to the trial

court prior to sentencing, the defendant cannot claim prejudice. See

Johnson, 179 A.3d at 1159 (holding Johnson was not prejudiced where trial

counsel did not file a formal, written motion, but Johnson had the

opportunity to seek withdrawal prior to being sentenced).

       We now turn to Appellant’s claim that trial counsel presented

Appellant’s motion to withdraw ineffectively, and in particular with regard to

Appellant’s claim of innocence.         In doing so, we set forth the standard by

which the trial court was to consider such a motion in this case.

       [T]here is no absolute right to withdraw a guilty plea; trial courts
       have discretion in determining whether a withdrawal request will
       be granted; such discretion is to be administered liberally in
       favor of the accused; and any demonstration by a defendant of a
       fair-and-just reason will suffice to support a grant, unless
       withdrawal    would    work     substantial  prejudice     to    the
       Commonwealth.

Commonwealth v. Carrasquillo, 115 A.3d 1284, 1291-92 (Pa. 2015).

       Prior to Carrasquillo, our courts have held that a claim of innocence

generally is a fair and just reason to withdraw a guilty plea prior to

sentencing.5 See e.g., Commonwealth v. Forbes, 299 A.2d 268 (Pa.
____________________________________________
5 “The pre-sentence standard starkly contrasts with the one applicable to a
defendant’s post-sentence motion to withdraw. Post-sentence motions for
withdrawal are subject to higher scrutiny since courts strive to discourage
entry of guilty pleas as sentence-testing devices.” Commonwealth v.
Baez, 169 A.3d 35, 39 n.1 (Pa. Super. 2017). To withdraw a guilty plea
after sentencing, “[a] defendant must demonstrate that manifest injustice
would result” from the denial of the motion. Id. However, our Supreme
Court has held that even where a defendant enters into a negotiated guilty
plea, and therefore knows the sentence that will be imposed, the trial court
(Footnote Continued Next Page)

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1973).        In Carrasquillo, our Supreme Court modified that approach,

holding that “a defendant’s innocence claim must be at least plausible to

demonstrate, in and of itself, a fair and just reason for presentence

withdrawal of a plea.” 115 A.3d at 1292; see also Commonwealth v.

Norton, 201 A.3d 112, 121 (Pa. 2019) (“[T]he Carrasquillo Court clearly

established that trial courts have the discretion to assess the plausibility of

claims   of     innocence.   Consistent    with   the   well-established   standards

governing trial court discretion, it is important that appellate courts honor

trial courts’ discretion in these matters, as trial courts are in the unique

position to assess the credibility of claims of innocence and measure, under

the circumstances, whether defendants have made sincere and colorable

claims that permitting withdrawal of their pleas would promote fairness and

justice.”).

      At sentencing, Appellant himself explained to the trial court why he

wished to withdraw his guilty plea.

           Today I move, I would like to move forward withdrawing
      my guilty plea on the record made on December [12], 2012. I

(Footnote Continued) _______________________
must still utilize the pre-sentence standard when considering a motion to
withdraw a guilty plea so long as the request is made prior to formal
sentencing. See Commonwealth v. Hvizda, 116 A.3d 1103 (Pa. 2015).

      In this case, it is worth pointing out that sentencing would have
occurred the same day Appellant entered into the negotiated guilty plea but
for Appellant’s request to delay sentencing for family reasons.       Thus,
although we must utilize the liberal pre-sentence standard for withdrawal,
this case arguably presents a situation more akin to a post-sentence motion
to withdraw.


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      wish to withdraw my guilty plea and enter a plea of not guilty to
      all charges as charged.

             I entered a plea of guilt made with a [sic] unassured
      and/or uncertain heart and confused mind.        I believe my
      decision was not knowing, intelligent and/or a voluntary act on
      my behalf on December [12], 2012. Moments before I signed
      for a plea of guilt, I was informed by my attorney Gary Silver,
      quote, you will be committing an act of suicide going in there,
      referring to taking the case to trial.

            My decision was a cowardly and vital decision made under
      a coerced and confused mind. Please note, I was under the
      impression that the maximum term would be twenty-five years
      and not fifty. My attorney Gary Silver stated that the most you
      would have to serve would be twenty-three years, which gave
      me an indication that the negotiated plea was twelve and a half
      to twenty-five years.

            I ask the Court to allow me to undo my plea under distress
      and false intentions and allow me to have a fair trial with a jury
      of my peers. I plead with the Court to allow me to maintain my
      innocence and not allow me to make a tactical decision under
      blatant coercion by counsel.

N.T., 2/7/2013, at 8-10.

      Based on Appellant’s statements and the facts of this case, it is not at

all clear how trial counsel could have offered a plausible assertion of

Appellant’s innocence.     Appellant himself did not state that he did not

commit the crime, he merely stated that he believed he was misled by the

terms of the plea and wished to “maintain [his] innocence” and “allow [him]

to have a fair trial with a jury of [his] peers.” Id. at 10. Furthermore, while

Appellant’s brief to this Court states that trial counsel should have asserted

Appellant’s innocence, see Appellant’s Brief at 21, Appellant does not set

forth any basis as to how trial counsel should have done that. Based on the



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foregoing, we conclude that Appellant was not prejudiced by trial counsel’s

failure to assert Appellant’s actual innocence because any assertion would

not have risen to the level of plausibility required to satisfy a fair and just

reason for withdrawal of the plea.       Accordingly, we agree with the PCRA

court that Appellant is not entitled to relief.

      Appellant also contends that direct appeal counsel was ineffective: 1)

for “omitting from Appellant’s concise statement the ground of actual

innocence;” and 2) and for “omitting from the direct appeal brief to the

Superior Court [] Appellant’s other fair and just reasons for seeking to

withdraw his plea.” Appellant’s Brief at 5.

      With respect to these claims, the proper relief to grant Appellant

should direct appeal counsel be found ineffective would be the right to file a

new direct appeal. As discussed supra, the Commonwealth agreed to

reinstatement of Appellant’s right to file a direct appeal; however, Appellant

elected to proceed instead with his claims regarding trial counsel’s

ineffectiveness. The PCRA court ensured that Appellant understood this

procedure.   Accordingly, we conclude Appellant has waived these first two

claims by electing not to proceed with his direct appeal in the first place.

      Moreover, even if Appellant did not waive these claims, he is not

entitled to relief. As discussed supra, the trial court did not err in denying

Appellant’s motion to withdraw his guilty plea because Appellant’s claim of

innocence was not and could not be plausible.        Accordingly, direct appeal

counsel could not be ineffective for failing to raise a meritless claim. See


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Commonwealth v. Spotz, 869 A.2d 1191, 1211 (Pa. 2006) (finding that

“counsel will not be deemed ineffective for failing to raise a meritless

claim”).

      Based on the foregoing, the PCRA court did not err by dismissing

Appellant’s PCRA petition due to Appellant’s failure to meet his burden in

demonstrating trial counsel’s ineffectiveness.   Accordingly, we affirm the

order of the PCRA court.

     Order affirmed.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/6/20




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