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[U] Commonwealth v. Owens

Superior Court of Pennsylvania

February 11, 2014

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
TERRELL LEWIS OWENS, Appellant

NON-PRECEDENTIAL DECISION

Appeal from the PCRA Order Entered June 6, 2012 In the Court of Common Pleas of Montgomery County Criminal Division at No(s): CP-46-CR-0007784-2009

BEFORE: BENDER, P.J., SHOGAN, J., and FITZGERALD, J. [*]

MEMORANDUM

BENDER, P.J.

Appellant, Terrell Lewis Owens, appeals from the trial court's June 6, 2012 order denying his petition for relief under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. Appellant argues that the PCRA court erred by not conducting an evidentiary hearing on his ineffective assistance of counsel claims. For the following reasons, we agree. Thus, we vacate the PCRA court's order and remand for a hearing.

On September 16, 2010, Appellant pled guilty to aggravated assault and carrying a firearm without a license. Appellant's convictions stemmed from his shooting the victim, Sheldon Crowder, in the leg with a pistol. In accordance with Appellant'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 eligibility pursuant to the Recidivism Risk Reduction Incentive Act (RRRI), 61 Pa.C.S. § 4505, so that [Appellant] would be RRRI eligible after fifty months." PCRA Court Opinion, 3/29/12, at 1.

Appellant 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. On March 29, 2012, the PCRA court issued a Pa.R.Crim.P. 907 notice of its intent to dismiss Appellant's amended petition. Appellant did not respond and, on June 6, 2012, the PCRA court issued an order dismissing his petition. Appellant filed a timely notice of appeal, and raises the following issue herein:

I. Did the [PCRA] court err in dismissing the amended [PCRA] petition without a hearing where Appellant's amended [PCRA] petition established arguable merit that Appellant's [plea] counsel was ineffective resulting in the entrance of an unintelligible plea to the charge of aggravated assault as a first degree felony where the elements of the offense were not provided to Appellant during oral or written colloquy and the factual basis only established an aggravated assault as a felony of the second degree?

Appellant's Brief at 3.[1]

Initially, "[t]his Court's standard of review from the grant or denial of post-conviction relief is limited to examining whether the lower court's determination is supported by the evidence of record and whether it is free of legal error." Commonwealth v. Morales, 701 A.2d 516, 520 (Pa. 1997) (citing Commonwealth v. Travaglia, 661 A.2d 352, 356 n.4 (Pa. 1995)). Where, as here, a petitioner claims that he received ineffective assistance of counsel, our Supreme Court has stated that:

[A] PCRA petitioner will be granted relief only when he proves, by a preponderance of the evidence, that his conviction or sentence resulted from the "[i]neffective 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." Generally, counsel's performance is presumed to be constitutionally adequate, and counsel will only be deemed ineffective upon a sufficient showing by the petitioner. To obtain relief, a petitioner must demonstrate that counsel's performance was deficient and that the deficiency prejudiced the petitioner. A petitioner establishes prejudice when he demonstrates "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." … [A] properly pled claim of ineffectiveness posits that: (1) the underlying legal issue has arguable merit; (2) counsel's actions lacked an objective reasonable basis; and (3) actual prejudice befell the petitioner from counsel's act or omission.

Commonwealth v. Johnson, 966 A.2d 523, 532-33 (Pa. 2009) (citations omitted).

Appellant contends that his plea counsel acted ineffectively in two regards. First, he maintains that counsel was deficient "for not ensuring that [] Appellant was advised of the elements of the crime of aggravated assault as a felony of the first degree…." Appellant's Brief at 8. Appellant acknowledges that in the written guilty plea colloquy, he answered "yes" to the following question:

Has your attorney explained to you all the things that a person must have done to be guilty of the crime or crimes to which you are pleading guilty?

Guilty Plea Colloquy, 9/17/10, at 3 ¶ 14. However, he maintains that because the PCRA court did not conduct an evidentiary hearing, "what was explained to Appellant by the attorney was not placed on the record" in order to confirm that his plea "counsel accurately explained the elements of aggravated assault as a first degree felony." Appellant's Brief at 6 (emphasis added). Appellant asserts, therefore, that his ineffectiveness claim has arguable merit, and his "case should be remanded for an evidentiary hearing to see if Appellant can prove all three (3) prongs" of the ineffectiveness test. Appellant's Brief at 12-13.

We agree that a PCRA hearing is necessary. In reaching this determination, we are guided by our decision in Commonwealth v. Harris, 589 A.2d 264 (Pa.Super. 1991). In that case, after Harris pled guilty to various offenses and was sentenced, he timely appealed to this Court, arguing that his plea counsel was ineffective for failing to object to the plea colloquy on the basis that, inter alia, the trial court failed to explain the nature of the charges to which Harris was pleading guilty. Id. at 264-65. In assessing this claim, we first stated:

A voluntary and understanding plea requires that the defendant understand, at a minimum, the following factors: 1) the nature of the charges; 2) the factual basis for the plea; 3) that he has the right to trial by jury; 4) that he is presumed innocent until found guilty; 5) the permissible range of sentences and/or fines for the offenses charged; and 6) that the judge is not bound by any plea agreement unless the judge accepts such agreement. Commonwealth v. Willis, 471 Pa. 50, 369 A.2d 1189 (1977). The questioning confirming that a defendant is aware of these factors may be conducted by the judge, the attorney for either party or by written colloquy. However, if a written colloquy is used it must be completed and signed by the defendant, and made part of the record. The written colloquy must also be supplemented by some oral examination. Pa.R.Crim.P. 319.[2]

Id. at 265.

In regard to Harris' claim that he was not informed of the nature of the charges, we emphasized that "the record must disclose that the elements of the crime or crimes charged were outlined in understandable terms." Id. (citing Commonwealth v. Tabb, 477 Pa. 115, 383 A.2d 849 (1978) (quoting Commonwealth v. Ingram, 455 Pa. 198, 316 A.2d 77 (1974)). This requirement was not satisfied at the oral plea colloquy in Harris, where "[t]he oral plea colloquy … provide[d] no information as to the nature of the charges in question…, " and, "[d]uring the oral plea colloquy, neither the court nor counsel explained the nature or elements of the crimes charged." Id.

We further concluded in Harris that the written plea colloquy was not adequate to satisfy the requirement that Harris be advised of the nature of the charges pending against him. The written colloquy completed by Harris did "not discuss or explain those factors which are defendant specific, e.g., the nature and/or elements of the specific crimes charged." Id. at 265. We also noted that the written colloquy did not ask Harris "whether trial counsel explained the nature of the crime" to him. Id. However, we made a point to state that we did "not suggest that such a question would suffice…." Id. at 265 n.1.

Ultimately, we decided in Harris that the ineffective assistance of counsel claim had arguable merit, and that prejudice was "clearly indicated because [Harris] was not permitted to withdraw his plea notwithstanding his lack of understanding." Id. at 266. Nevertheless, we found that, "although unlikely, we must consider the possibility that trial counsel had a reasonable basis for following this course of action." Id. (citing Commonwealth v. Glaze, 531 A.2d 796 (Pa.Super. 1987)). Accordingly, we remanded for an evidentiary hearing.

In this case, as in Harris, Appellant 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 Appellant 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 Appellant. 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, we are compelled to vacate the order denying Appellant's PCRA petition and remand for an evidentiary hearing on Appellant's first claim of ineffectiveness.[3]

In Appellant's second issue, he avers that his plea counsel was also ineffective for not objecting to the plea colloquy's factual basis for the charge of aggravated assault as a felony of the first degree. During the guilty plea colloquy, the Commonwealth stated the following facts to support this charge:

[The Commonwealth]: On September 27 of 2009, [Appellant], … fired a shot from a pistol at Sheldon Crowder, striking him in the leg[.]

Guilty Plea Colloquy at 8. Appellant contends that these facts are not sufficient to support the charge of aggravated assault as a felony of the first degree, which involves serious bodily injury to the victim.[4] Instead, Appellant maintains that these facts prove only that the victim suffered bodily injury, supporting a charge of aggravated assault as a felony of the second degree.[5]

The Crimes Code defines "serious bodily injury" as "[b]odily injury which creates a substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ." 18 Pa.C.S. § 2301. While we concede that the facts stated at the plea colloquy do not indicate whether the victim actually suffered serious bodily injury, "an attempt to inflict serious harm is as punishable as if the attempt succeeds." Commonwealth v. Caterino, 678 A.2d 389, 391 (Pa.Super. 1996) (citing 18 Pa.C.S. § 2701(a)(1)). In Commonwealth v. Phillips, 410 A.2d 832 (Pa.Super. 1979), our Court stated: "Because criminal intent may be proved by circumstantial evidence, … it is evident that the act of pointing the gun at the victim evidenced appellant's intent to cause serious bodily injury." Id. at 834.

Here, Appellant admitted at the oral colloquy that he fired a shot from a pistol at the victim, striking him in the leg. This was sufficient to prove that Appellant intended to cause serious bodily injury to the victim, and attempted to do so by shooting him. Accordingly, there was a sufficient factual basis to support the charge of aggravated assault as a felony of the first degree, making Appellant's second claim of ineffectiveness meritless. The court need not revisit this issue at the PCRA hearing.[6]

Order vacated. Case remanded.

Jurisdiction relinquished.

Judgment Entered.


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