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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

JESSICA RIZOR

                        Appellant                 No. 291 WDA 2016


               Appeal from the PCRA Order February 5, 2016
           In the Court of Common Pleas of Washington County
           Criminal Division at No(s): CP-63-CR-0002637-2004


BEFORE: PANELLA, J., DUBOW, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY PANELLA, J.                            FILED JUNE 8, 2017

      Appellant, Jessica Rizor, appeals from the order entered in the

Washington County Court of Common Pleas, denying her petition pursuant

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

vacate the PCRA court’s order denying relief, and remand for an evidentiary

hearing.

      A panel of our Court previously summarized the facts of this case as

follows:

      In 2004, Appellant, a married woman who lived with her
      husband and her mother, concealed the fact that she was
      pregnant from family and co-workers. In the early morning
      hours of the day following Thanksgiving 2004, Appellant gave
      birth to a live full-term baby girl in the bathroom of her home
      and disposed of the child in plastic bags. Husband found the
      deceased child after Appellant insisted that Husband take the
      garbage out of the house. Husband had his mother-in-law call
      911. Appellant was taken to the hospital. The Medical Examiner
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      took the deceased child for an autopsy and discovered that the
      child was born alive and died by asphyxiation. Appellant gave a
      written statement to police, wherein she detailed the events
      surrounding the incident.

Commonwealth v. Rizor, No. 1128 WDA 2008 (Pa. Super., filed 7/21/10)

(unpublished memorandum).

      Appellant was charged with murder and other crimes stemming from

the incident. The Commonwealth offered Appellant a 5½ to 30-year

sentence, in exchange for a plea of guilty but mentally ill to third-degree

murder. The court conducted a plea colloquy, at which time Appellant

rejected the deal. Appellant proceeded to a jury trial, where she was

convicted of first-degree murder, concealing the death of a child, and abuse

of a corpse. On June 5, 2008, the trial court sentenced Appellant to a term

of life imprisonment. On appeal, this Court affirmed Appellant’s judgment of

sentence, and the Pennsylvania Supreme Court denied Appellant’s petition

for allowance of appeal. Appellant timely filed a PCRA petition, which was

subsequently amended twice with permission of the PCRA court.

      After Appellant’s final amendment of her PCRA petition, the PCRA court

issued Rule 907 notice of its intent to dismiss the petition without a hearing.

Appellant filed a response and requested a hearing. The PCRA court heard

argument on this matter, at which Appellant’s PCRA counsel argued

Appellant’s trial counsel was ineffective for failing to present a cognizable

trial strategy. After substantial argument, the PCRA court declined to have

an evidentiary hearing to permit Appellant to present evidence from her trial

attorney about his strategy and about his alleged ineffectiveness. The PCRA

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court ultimately dismissed Appellant’s PCRA petition. This timely appeal

followed.

      On appeal, Appellant argues the PCRA court erred by dismissing her

PCRA petition without an evidentiary hearing. Appellant avers that but for

trial counsel’s assurances that she would “never set foot in state prison” and

counsel’s advice to reject the plea offer, Appellant would not have proceeded

to trial. Appellant contends the evidence against her was insurmountable,

and a competent attorney never would have advised her to risk trial.

Appellant asserts trial counsel repeatedly tried to argue a diminished

capacity defense, but the court previously determined before the trial began

that any evidence of Appellant’s mental health was inadmissible. Appellant

concludes these are genuine issues of material fact as to trial counsel’s

competence, and that she is entitled to an evidentiary hearing. We agree.

      “On appeal from the denial of PCRA relief, our standard and scope of

review is limited to determining whether the PCRA court’s findings are

supported by the record and without legal error.” Commonwealth v.

Edmiston, 65 A.3d 339, 345 (Pa. 2013) (citation omitted). “[Our] 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

PCRA court level.” Commonwealth v. Koehler, 36 A.3d 121, 131 (Pa.

2012) (citation omitted). “[T]his Court applies a de novo standard of review

to the PCRA court’s legal conclusions.” Commonwealth v. Spotz, 18 A.3d

244, 259 (Pa. 2011) (citation omitted).

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      It is well-settled that

      [t]o plead and prove ineffective assistance of counsel a
      petitioner must establish: (1) that the underlying issue has
      arguable merit; (2) counsel’s actions lacked an objective
      reasonable basis; and (3) actual prejudice resulted from
      counsel's act or failure to act.

Commonwealth v. Rykard, 55 A.3d 1177, 1189-1190 (Pa. Super. 2012)

(citation omitted). A failure to satisfy any prong of the test will require

rejection of the claim. See Commonwealth v. Spotz, 84 A.3d 294, 311

(Pa. 2014).

      The right to an evidentiary hearing on a post-conviction petition is not

absolute. See Commonwealth v. Jordan, 772 A.2d 1011, 1014 (Pa.

Super. 2001). It is within the PCRA court’s discretion to decline to hold a

hearing if the petitioner’s claim is patently frivolous and has no support

either in the record or other evidence. See id.

      It is the responsibility of the reviewing court on appeal to 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.   See Commonwealth v.

Hardcastle, 701 A.2d 541, 542-543 (Pa. 1997). We review a PCRA court’s

decision to deny a claim without a hearing for an abuse of discretion.

Commonwealth v. Stewart, 84 A.3d 701, 707 (Pa. Super. 2013) (citations

omitted).


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      In “ineffectiveness claims in particular, if the record reflects that the

underlying issue is of no arguable merit or no prejudice resulted, no

evidentiary hearing is required.” Commonwealth v. Bauhammers, 92

A.3d 708, 726-727 (Pa. 2014) (citation omitted). “Arguable merit exists

when the factual statements are accurate and could establish cause for

relief. Whether the facts rise to the level of arguable merit is a legal

determination.” Commonwealth v. Barnett, 121 A.3d 534, 540 (Pa.

Super. 2015) (citation omitted). “Prejudice is established if there is a

reasonable probability that, but for counsel’s errors, the result of the

proceeding would have been different. A reasonable probability is a

probability sufficient to undermine confidence in the outcome.” Stewart, 84

A.3d at 707 (Pa. Super. 2013) (citations and internal quotation marks

omitted).

      Instantly, Appellant rejected the Commonwealth’s offer of a 5½ to 30-

year sentence in exchange for a plea of guilty but mentally ill to third-degree

murder. The trial court conducted a thorough plea colloquy on the record,

questioning Appellant about whether she understood the charges she faced

and the risk of going to trial. The court informed Appellant she faced a

sentence of life in prison without the possibility of parole if she was

convicted of murder in the first degree. The court also asked Appellant if she

had been pressured into making her decision. Appellant indicated she




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understood the charges and risks, and that she had not been coerced into

making the choice.

     Appellant contends that trial counsel gave her advice to reject the plea

because counsel planned to argue an insanity or diminished capacity

defense. Appellant’s PCRA petition avers that even after the trial court

granted the Commonwealth’s motion to preclude mental health evidence,

counsel did not apprise her of the change to the defense strategy or its

considerably reduced likelihood of success.

     The PCRA court held that Appellant’s issue lacked arguable merit

because Appellant stated during the plea colloquy that she had not been

pressured   to   reject   the   plea.   However,   “pressure”   is   an   improper

measurement of whether an appellant received effective assistance of

counsel. Based on her own assertions, Appellant was not pressured into

rejecting the deal. Rather, she believed she was doing so rationally, based

on the purported ability of her attorney to present a mental health defense.

Thus, the existence of the plea colloquy does not refute Appellant’s

ineffective assistance argument.

     In its opinion, the PCRA court also states that counsel cannot be

deemed ineffective for failing to present a cognizable defense. See PCRA

Court Opinion, filed 5/17/16, at 21. However, trial counsel’s failure to

present a cognizable defense goes toward evaluating the reasonableness of

counsel’s advice not to take the plea. Appellant claims she believed trial


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counsel had a legally sound defense when she rejected the plea. The court’s

evidentiary ruling prior to trial eviscerated counsel’s ability to present this

defense. Without the ability to present any exculpatory mental health

testimony, and no other line of defense evident from the transcripts, counsel

would have no reasonable basis for rejecting the plea.

      Finally, with respect to prejudice, had counsel advised Appellant to

take the plea, and Appellant accepted the advice, she would have received a

sentence of 5½ to 30 years’ incarceration—instead of the life without the

possibility of parole sentence she is presently serving.

      The PCRA court did not base its decision on a credibility finding, and so

we are free to reject its legal conclusions. See Hardcastle, 701 A.2d at

542-543. Appellant has demonstrated a genuine issue of material fact based

on the pleadings. The PCRA court abused its discretion in failing to hold an

evidentiary hearing.

      Moreover, the certified record contains a witness certification from

Appellant’s PCRA counsel, stating that he spoke to Appellant’s trial counsel.

The certification avers Appellant’s trial counsel admitted during two separate

discussions that he was ineffective, and that he would testify to his

ineffectiveness before the PCRA court. See Amended Witness Certification of

Robert Brady, filed 10/23/14, at 2. Though Appellant’s averments alone are

sufficient in this instance to remand for an evidentiary hearing, as they raise




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a genuine issue of material fact, this admission bears mentioning when

evaluating the arguable merit of Appellant’s ineffective assistance claim.

      As we find Appellant has demonstrated a genuine issue of material

fact, we vacate the PCRA court’s order and remand for an evidentiary

hearing.

      Order vacated. Case remanded for proceedings consistent with this

memorandum. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/8/2017




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