J-S12002-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellant

                       v.

TERRELL LEWIS OWENS

                            Appellee                   No. 2506 EDA 2015


                   Appeal from the PCRA Order July 20, 2015
             In the Court of Common Pleas of Montgomery County
              Criminal Division at No(s): CP-46-CR-0007784-2009

BEFORE: MUNDY, J., OLSON, J., and STRASSBURGER, J.*

MEMORANDUM BY MUNDY, J.:                              FILED MARCH 16, 2016

        The Commonwealth appeals from the July 20, 2015 order granting the

petition for relief, filed by Appellee, Terrell Lewis Owens, pursuant to the

Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. After careful

review, we reverse.

        A prior panel of this Court set forth the facts and procedural history of

this case as follows.

                     On September 16, 2010, [Appellee] pled guilty
              to aggravated assault and carrying a firearm without
              a license. [Appellee’s] convictions stemmed from his
              shooting the victim, Sheldon Crowder, in the leg with
              a pistol. In accordance with [Appellee’s] negotiated
              plea agreement, the court sentenced him to an
              aggregate term of five to ten years’ imprisonment,
              with the Commonwealth waiving the requirements of
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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           eligibility pursuant to the Recidivism Risk Reduction
           Incentive Act (RRRI), 61 Pa.C.S. § 4505, so that
           [Appellee] would be RRRI eligible after fifty months.

                  [Appellee] did not file a direct appeal. Instead,
           he filed a pro se PCRA petition on June 27, 2011.
           Counsel was appointed and an amended petition was
           filed on December 1, 2011. [The amended petition
           averred, in part, that guilty plea counsel was
           ineffective for not ensuring that Appellee understood
           the elements of the crime of aggravated assault as a
           first-degree felony.] On March 29, 2012, the PCRA
           court issued a Pa.R.Crim.P. 907 notice of its intent to
           dismiss [Appellee’s] amended petition. [Appellee]
           did not respond and, on June 6, 2012, the PCRA
           court issued an order dismissing his petition.
           [Appellee] filed a timely notice of appeal[.]

Commonwealth v. Owens, 97 A.3d 799 (Pa. Super. 2014) (unpublished

memorandum at 1-2) (citations and internal quotation marks omitted).

     On February 11, 2014, this Court vacated the PCRA court’s order and

remanded for an evidentiary hearing, explaining as follows.

                 In this case, as in [Commonwealth v.]
           Harris, 589 A.2d 264 (Pa. Super. 1991),] [Appellee]
           was not informed during the oral plea colloquy of the
           elements of the charge of aggravated assault.
           Additionally, the written plea colloquy did not set
           forth the elements of that offense. While [Appellee]
           did indicate in the written colloquy that his counsel
           explained to him “all the things that a person must
           have done to be guilty” of that crime, there is no
           record of what counsel told [Appellee]. Guilty Plea
           Colloquy, 9/17/10, at 3 ¶ 14. Thus, we cannot even
           begin to assess whether the information provided by
           counsel was sufficient, in and of itself, to satisfy the
           requirement that Appellant understood the nature of
           the charges to which he was pleading guilty. We
           also have no indication of counsel’s rationale for not
           objecting to the omission of this component from the
           oral or written colloquies. Therefore, as in Harris,

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              we are compelled to vacate the order denying
              [Appellee’s] PCRA petition and remand for an
              evidentiary hearing on [Appellee’s] first claim of
              ineffectiveness.

Id. at 6-7 (footnote omitted).

       After remand, on May 7, 2014, the PCRA court held an evidentiary

hearing on Appellee’s claim that guilty plea counsel did not inform him of the

elements of aggravated assault as a first-degree felony.

                     At the hearing, [Appellee] testified to the effect
              that counsel on the plea, Assistant Public Defender
              Cassidy, did not advise him off the record prior to
              the plea of the elements of aggravated assault as a
              first-degree felony except that it was “that somebody
              got shot” ([N.T., 5/7/14, at 4]) and that he would
              not have pled guilty had he been properly advised.
              ([Id. at 4-7, 13.]) Cassidy was present at the
              hearing but was not called as a witness by either
              party. The [PCRA] [c]ourt entertained the parties’
              oral argument, with [PCRA counsel] maintaining it
              was a simple matter of credibility whether the
              [PCRA] [c]ourt believed [Appellee’s] testimony, and
              the Commonwealth arguing that to sustain the
              burden to prove counsel had no reasonable basis for
              her actions or inactions, counsel’s testimony was
              necessary.

PCRA Court Opinion, 7/20/15. Thereafter, on July 20, 2015, the PCRA court

granted Appellee’s PCRA petition, vacated Appellee’s guilty plea and

judgment of sentence, and awarded Appellee a new trial.            On August 19,

2015, the Commonwealth filed a timely notice of appeal.1

____________________________________________


1
 The PCRA court did not order the Commonwealth to file a Pennsylvania
Rule of Appellate Procedure 1925(b) concise statement of matters
(Footnote Continued Next Page)


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      The Commonwealth presents the two following issues for our review.

             1. Whether the PCRA court erred by shifting the
                ineffectiveness   burden   of  proof to  the
                Commonwealth after [Appellee’s] self-serving
                testimony at the PCRA hearing?

             2. Whether the PCRA court erred by granting relief
                on an ineffectiveness claim without addressing
                prejudice and where defendant failed to prove
                that—but for the alleged ineffectiveness—he
                would have insisted on going to trial?

Commonwealth’s Brief at 3.

      Our standard of review requires us to “examine whether the PCRA

court’s determination is supported by the record and free of legal error.”

Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014) (internal quotation

marks and citation omitted). “The scope of review is limited to the findings

of the PCRA court and the evidence of record, viewed in the light most

favorable to the prevailing party at the trial level.”   Commonwealth v.

Spotz, 84 A.3d 294, 311 (Pa. 2014) (citation omitted).     “It is well-settled

that a PCRA court’s credibility determinations are binding upon an appellate

court so long as they are supported by the record.”      Commonwealth v.

Robinson, 82 A.3d 998, 1013 (Pa. 2013) (citation omitted). However, this



                       _______________________
(Footnote Continued)

complained of on appeal, and the Commonwealth has not filed a Rule
1925(b) statement. Further, on August 24, 2015, the PCRA court issued a
Rule 1925(a) statement, noting that its July 20, 2015 opinion set forth its
reasons for granting PCRA relief. PCRA Court Statement, 8/24/15, at 1.



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Court reviews the PCRA court’s legal conclusions de novo. Commonwealth

v. Rigg, 84 A.3d 1080, 1084 (Pa. Super. 2014) (citation omitted).

      Further, in order to be eligible for PCRA relief, a petitioner must plead

and prove by a preponderance of the evidence that his conviction or

sentence arose from one or more of the errors listed at Section 9543(a)(2)

of   the   PCRA.    42   Pa.C.S.A.   §   9543(a)(2).   These   errors   include

ineffectiveness of counsel. Id. § 9543(a)(2)(ii). The issues raised in a PCRA

petition must be neither previously litigated nor waived. Id. § 9543(a)(3).

      When reviewing a claim of ineffectiveness, we apply the following test,

first articulated by our Supreme Court in Commonwealth v. Pierce, 527

A.2d 973 (Pa. 1987).

             [C]ourts presume that counsel was effective, and
             place upon the appellant the burden of proving
             otherwise. Counsel cannot be found ineffective for
             failure to assert a baseless claim.

                    To succeed on a claim that counsel was
             ineffective, Appellant must demonstrate that: (1) the
             claim is of arguable merit; (2) counsel had no
             reasonable strategic basis for his or her action or
             inaction; and (3) counsel’s ineffectiveness prejudiced
             him.
                                       …

                  [T]o demonstrate prejudice, appellant must
             show there is a reasonable probability that, but for
             counsel’s error, the outcome of the proceeding would
             have been different.

Commonwealth v. Michaud, 70 A.3d 862, 867 (Pa. Super. 2013) (internal

quotation marks and citations omitted). “Failure to establish any prong of


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the test will defeat an ineffectiveness claim.”           Commonwealth v.

Birdsong, 24 A.3d 319, 329 (Pa. 2011).

      We begin our review with the Commonwealth’s second issue, because

it is dispositive of this appeal. The Commonwealth contends that Appellee

did not show prejudice because “[t]he record cannot support the conclusion

that, but for the alleged bad advice about the elements of aggravated

assault, [Appellee] would have insisted on going to trial on all charges.”

Commonwealth’s Brief at 17.

      We have explained that a defendant is entitled to constitutionally

effective   assistance   of   counsel    during   the   guilty   plea   process.

Commonwealth v. Barndt, 74 A.3d 185, 192 (Pa. Super. 2013).

                  Allegations 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. Wah, 42 A.3d 335, 338–39
            (Pa. Super. 2012)] (internal quotation marks and
            modifications omitted); see Commonwealth v.
            Yager, 685 A.2d 1000, 1003–04 (Pa. Super. 1996).
            Thus, to establish prejudice, “the defendant must
            show that there is a reasonable probability that, but
            for counsel’s errors, he would not have pleaded
            guilty and would have insisted on going to trial.”
            [Commonwealth v. Rathfon, 899 A.2d 365, 369–
            70 (Pa. Super. 2006)] (quoting Hill v. Lockhart,
            474 U.S. 52, 59 (1985)).          “The reasonable

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                probability test is not a stringent one”; it merely
                refers to “a probability sufficient to undermine
                confidence in the outcome.” Id. at 370 (quoting
                Commonwealth v. Hickman, 799 A.2d 136, 141
                (Pa. Super. 2002)).

Id. (parallel citations omitted).

        Here,    the   PCRA    court    did    not    expressly   find   that   Appellee

demonstrated that counsel’s failure to ensure Appellee understood the

elements of aggravated assault prejudiced him, such that he would not have

pled guilty if he knew the elements of aggravated assault.                However, the

PCRA court granted Appellee PCRA relief after crediting his testimony.2

PCRA Court Opinion, 7/20/15, at 9, 11.               Therefore, we may presume that



____________________________________________


2
    The PCRA court explained that it found Appellee credible as follows.

                      We did not find [Appellee’s] testimony at the
                hearing particularly credible. On the other hand, we
                had no reason to disbelieve his testimony that no
                one had advised him of the elements of aggravated
                assault as a felony of the first degree; there was no
                evidence of record to the contrary.

                                               …

                      [W]e did not reject as inherently incredible
                [Appellee’s] testimony to the effect that counsel had
                not advised him of the elements of aggravated
                assault as a felony of the first degree. Instead, in
                the absence of any evidence in the record to rebut
                his testimony, we accepted it.

PCRA Court Opinion, 7/20/15, at 9, 11 (citations omitted).



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the PCRA court concluded Appellee proved prejudice. We review this legal

conclusion de novo. Rigg, supra.

      Viewing the evidence in the light most favorable to Appellee, there is

no support for the conclusion that there was a reasonable probability that

Appellee would not have pled guilty to aggravated assault if he knew the

elements of the offense.       Specifically, Appellee provided the following

reasons for his guilty plea.

            I didn’t want to plead [to] aggravated assault at all.

                                       …

            The only reason I pled guilty at all was I was told
            either I plead guilty or I’m guaranteed to lose at trial
            and get twenty-five to life for attempted murder.

                                       …

            Well, a variety of things is [sic] what pushed me into
            the guilty plea.

                                       …

            The lack of communication between me and my
            lawyer, her lack of attempting to fight for me,
            refusing to file the motions that I requested her to.
            And the sight of my grieving mother thinking I’m
            going to get twenty-five to life because this attorney
            convinced her that’s what’s going to happen.

N.T., 5/7/14, at 6-7. On cross-examination, Appellee acknowledged that in

exchange for his guilty plea he also was aware that he would become RRRI

eligible and that the sentences for the firearm offense and aggravated

assault would be concurrent. Id. at 9-10. He further admitted that he gave


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a statement to police confessing to the shooting and other witnesses would

have testified against him at trial. Id. at 11.

       Appellee did not testify that he would have elected to go to trial if his

counsel informed him of the elements of aggravated assault.         He did not

present any evidence that his lack of knowledge of the elements of the

offense was the reason for his guilty plea.        Instead, he stated that his

decision to plead guilty was largely motivated by his desire to avoid

exposure to the potential sentence of 25 years’ to life imprisonment for the

charge of attempted murder. This is an independent reason that Appellee

would have pled guilty even if he knew the elements of aggravated assault.

There was no evidence presented at the PCRA hearing to support the

conclusion that there was a reasonable probability that Appellee would have

elected to forego a guilty plea and instead go to trial if he knew the elements

of aggravated assault.        See Brandt, supra.   Therefore, we conclude the

record does not support the PCRA court’s determination that Appellee

demonstrated the ineffective representation of guilty plea counsel prejudiced

him. Because Appellee did not show prejudice, guilty plea counsel’s failure

to inform him of the elements of aggravated assault cannot be deemed

ineffective representation.3 See Birdsong, supra.

____________________________________________


3
 Given our conclusion that Appellee was not entitled to PCRA relief because
he did not demonstrate prejudice, we do not need to address the
Commonwealth’s first issue regarding the burden of proof.



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      Based on the foregoing, we conclude that the PCRA court erred as a

matter of law by granting Appellee a new trial based on guilty plea counsel’s

ineffectiveness.   See Fears, supra.     Accordingly, we reverse the PCRA

court’s July 20, 2015 order.

      Order reversed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/16/2016




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