February 21, 2014
COMMONWEALTH OF PENNSYLVANIA, Appellee
KEVIN PATTERSON, Appellant
Appeal from the PCRA Order of May 1, 2013 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0810631-2005, CP-51-CR-0810641-2005 and CP-51-CR-0906011-2005
BEFORE: GANTMAN, P.J., OLSON AND PLATT, [*] JJ.
Appellant, Kevin Patterson, appeals from the order entered on May 1, 2013, dismissing his first petition pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.
The facts and procedural history of this, as aptly set forth by the PCRA court, are as follows:
[Appellant] and his cohorts robbed a Friendly's restaurant in Northeast Philadelphia wearing masks and carrying a shotgun, a handgun and a revolver. They ordered employees and customers to the floor and took money and other items from the restaurant, employees and patrons. Police arrested [Appellant and his co-defendants] as they were fleeing from the crime scene.
On January 11, 2010, [Appellant] entered into a negotiated guilty plea and was sentenced on each of [four] counts of  robbery [(each graded as a first-degree felony)] to [four] to 10 years['] incarceration (all sentences to be served concurrently); he was also sentenced to 10 years['] probation on each of [four] counts of criminal conspiracy to commit robbery (all to be served concurrent to each probation and to his incarceration sentences for robbery), and he was sentenced[d] to 84 months [of] concurrent probation for carrying a loaded firearm without a license.
Postmarked January 3, 2011, [Appellant] filed a [p]etition pursuant to the [PCRA]. On September 14, 2012, PCRA counsel, David Rudenstein, Esquire, filed an "Amended [PCRA] Petition." On January 14, 2013, the Commonwealth filed [a] [m]otion [t]o [d]ismiss. On April 2, 2013, [the PCRA] court sent [Appellant] notice pursuant to Pa.R.Crim.P. 907, informing him that the issue raised in his PCRA [p]etition was without merit. On May 1, 2013, [the PCRA] court formally dismissed [Appellant's] PCRA [p]etition [without an evidentiary hearing].
PCRA Court Opinion, 6/13/2013, at 1-2 (headings and offense citations omitted). This timely appeal resulted.
On appeal, Appellant presents a single issue for our review:
I. Did the Honorable PCRA [c]ourt err when it dismissed [Appellant's] [a]mended PCRA [p]etition without a hearing,  where [Appellant] properly pled and would have been able to prove he was entitled to PCRA relief?
Appellant's Brief, at 3.
Appellant argues that trial counsel was ineffective and induced unknowing guilty pleas when his lawyer told him that he would be "paroled immediately" if he accepted the plea bargain, and where Appellant was, in fact not "paroled immediately." Id. at 4. In a single statement in his appellate brief, Appellant avers that he is actually innocent. Id. Thus, Appellant contends "an evidentiary hearing was absolutely necessary" to determine "whether an actual promise was made to [Appellant] that is part of the plea bargain, or whether there has been a misunderstanding by [Appellant]." Id. at 6.
We conclude that the PCRA court correctly denied relief without convening an evidentiary hearing. Our Court confronted a similar issue in Commonwealth v. Rathfon, 899 A.2d 365 (Pa. Super. 2006). In that case, Rathfon negotiated a guilty plea in exchange for county incarceration. The sentencing order stated that Rathfon would receive a county sentence, consecutive to any sentences previously imposed. Seven months after sentencing, the Department of Corrections aggregated Rathfon's negotiated sentence as imposed under the plea agreement with a state sentence previously imposed. After Rathfon's inmate grievance was denied by the Department of Corrections, he filed a PCRA petition in which he sought to withdraw his guilty plea on the grounds that his plea counsel was ineffective. Rathfon alleged that he would not have entered into the plea had he known that he would not be able to serve his sentence in a county facility. The PCRA court granted relief and allowed Rathfon to withdraw his guilty plea on that basis and the Commonwealth appealed. We affirmed.
With that background, we will examine our Rathfon decision in more detail, beginning with our standard of review and the law applicable to plea counsel's ineffectiveness under the PCRA:
Our standard in reviewing a PCRA court order [requires that we] determine only whether the court's order is supported by the record and free of legal error. This Court grants great deference to the findings of the PCRA court, and we will not disturb those findings merely because the record could support a contrary holding. We will not disturb the PCRA court's findings unless the record fails to support those findings.
A criminal defendant has the right to effective counsel during a plea process as well as during trial. A defendant is permitted to withdraw his guilty plea under the PCRA if ineffective assistance of counsel caused the defendant to enter an involuntary plea of guilty.
We conduct our review of such a claim in accordance with the three-pronged ineffectiveness test under section 9543(a)(2)(ii) of the PCRA, 42 Pa.C.S.A. § 9543(a)(2)(ii). The voluntariness of the plea depends on whether counsel's advice was within the range of competence demanded of attorneys in criminal cases.
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. Moreover, trial counsel is presumed to be effective.
[Rathfon carefully considered the prior decisions of this Court in Commonwealth v. Hickman, 799 A.2d 136 (Pa. Super 2002) and Commonwealth v. Kersteter, 877 A.2d 466 (Pa. Super 2005) in reviewing the Commonwealth's appeal. We said: in both Hickman and Kersteter, ] the defendants pled guilty in reliance on plea counsels' erroneous advice that they would be eligible for boot camp when, in fact, the length of their sentences statutorily precluded the possibility of their participation in boot camp. Both defendants sought PCRA relief, asking to withdraw their pleas based on ineffectiveness assistance of counsel. In both cases, we concluded that counsels' erroneous advice fell below the standard of competence required by the Sixth Amendment, that there was no reasonable basis designed to advance the defendants' interests, and that the erroneous advice prejudiced the defendants because it enticed them to plead guilty when they would not have otherwise done so.
With regard to prejudice, in Hickman, we noted that to succeed in showing prejudice, the defendant must show that it is reasonably probable that, but for counsel's errors, he would not have pleaded guilty and would have gone to trial. The reasonable probability test is not a stringent one. The Court in Hickman derived this standard from Nix v. Whiteside, 475 U.S. 157, 175, 106 S.Ct. 988, 89 L.Ed.2d 123 (1986), which held that "[a] reasonable probability is a probability sufficient to undermine confidence in the outcome."
The Hickman Court also relied upon Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985), wherein the United States Supreme Court stated:
[I]n order to satisfy the "prejudice" requirement, 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.
In many guilty plea cases, the "prejudice" inquiry will closely resemble the inquiry engaged in by courts reviewing ineffective-assistance challenges to convictions obtained through a trial. For example, where the alleged error of counsel is a failure to investigate or discover potentially exculpatory evidence, the determination whether the error "prejudiced" the defendant by causing him to plead guilty rather than go to trial will depend on the likelihood that discovery of the evidence would have led counsel to change his recommendation as to the plea. This assessment, in turn, will depend in large part on a prediction whether the evidence likely would have changed the outcome of a trial. Similarly, where the alleged error of counsel is a failure to advise the defendant of a potential affirmative defense to the crime charged, the resolution of the "prejudice" inquiry will depend largely on whether the affirmative defense likely would have succeeded at trial.
Hill, 474 U.S. at 59, 106 S.Ct. 366 (footnote omitted).
In Hickman we found prejudice where the defendant established that it was reasonably probable that he would not have pled guilty had he known that he was really not eligible for boot camp. We were persuaded by two factors: first, that the PCRA court did not doubt the defendant's or plea counsel's credibility; and, second, that had he gone to trial, he would have only been risking one additional year of incarceration on his minimum sentence. Accordingly, counsel's constitutionally deficient advice caused the defendant's plea to be involuntary and unknowing.
We emphasize[d] that our standard of review requires that we grant great deference to the trial court and affirm its orders if supported by the record, even though the record may support a contrary result. Indeed, [the Rathfon case] is a situation where the record could [have] support[ed] a contrary result. Arguably, we could [have] conclude[d] that, even if Rathfon knew that the entire sentence would be served in a state prison, he still would have pled guilty because of the other benefits of his bargain, i.e., [an] indecent assault charge was nol prossed, his prior record score was decreased from 5 to 4, and he risked a maximum of five years' incarceration had he gone to trial whereas the recommended maximum in his plea agreement was 1½ years.
However, we [could not] ignore the fact that the record reveal[ed] that Rathfon bargained for a county sentence, that the court accepted the plea and sentenced Rathfon under the continuing misapprehension that the sentence would be served in the county jail, and that plea counsel was apparently not aware that the Sentencing Code and [Department of Corrections'] policy would result in aggregation of the sentences, which would [have] preclude[d] the possibility of Rathfon serving the sentence in the county jail. Additionally, it [was] within the province of the PCRA court to make credibility determinations, and it apparently believed Rathfon when he testified at the PCRA hearing that he would not have pled guilty had he known the sentence would be served in state prison. The PCRA court accepted Rathfon's reasons for preferring county jail over state prison and concluded that Rathfon did not get what he had bargained for, given that the written plea agreement and associate[d] proceedings unequivocally indicated that his sentence was to be a county sentence. Since the reasonable probability test is not stringent and the record support[ed] the PCRA court's conclusions, we [affirmed the PCRA court's determination allowing Rathfon to withdraw his plea.]
Rathfon, 899 at 368-371 (most citations and quotations omitted) (emphasis in original).
In contrast to Rathfon, in this case, the PCRA court denied relief without a hearing. The entire sum of the PCRA court's discussion is as follows:
In his [a]mended [PCRA p]etition, [Appellant] "avers that he was victimized by ineffective assistance of counsel when his lawyer told him that he would be 'paroled immediately' as the result of accepting the plea bargain, and where [Appellant] was not 'paroled immediately.'"
All court sentencing sheets and court commitments set out that [Appellant] was, indeed, to receive "immediate parole." And, [Appellant] was, in fact, paroled in this case on or about September 15, 2011. Therefore, as the Commonwealth noted in its [m]otion [t]o [d]ismiss, he received "specific enforcement of his plea bargain." As the Commonwealth noted, unfortunately for [Appellant], he was then arrested in September 2012 [for] violating parole in the underlying case and violating probation in a 2008 case.
PCRA Court Opinion, 6/13/2013, at 3-4.
Appellant was sentenced on January 11, 2010. According to the plea agreement, Appellant was to be "paroled immediately." Appellant was not paroled until September 15, 2011. It appears that the PCRA court denied relief because Appellant had already received the relief he had requested.
We agree there is no merit to Appellant's claim, albeit for reasons different from the PCRA court. "This Court may affirm a PCRA court's decision on any grounds if the record supports it." Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012). Appellant bore the burden of pleading and proving all three prongs of the test for counsel ineffectiveness. Thus, Appellant was required to plead and prove prejudice by alleging that it was reasonably probable that, but for counsel's errors, he would not have pled guilty and would have gone to trial. As Rathfon makes clear, although the prejudice requirement is not an insurmountable hurdle, it is an essential element in pleading a viable claim of ineffective assistance of counsel. At no time, in either his pro se PCRA petition, amended counseled PCRA petition, or his appellate brief, does Appellant assert he would not have pled guilty (and would have gone to trial instead) if counsel made clear that immediate parole did not equate to eligibility for parole. Rather, Appellant requests an evidentiary hearing to flesh out his claim. "PCRA hearings are not discovery expeditions; rather, they are conducted when necessary to offer the petitioner an opportunity to prove that which he already has asserted, and only when his proffer establishes a colorable claim about which there remains a material issue of fact." Commonwealth v. Sneed, 45 A.3d 1096, 1107 (Pa. 2012). Because Appellant did not assert prejudice, his ineffective assistance of counsel claim fails as a matter of law. Thus, there were no genuine issues of material fact that required exploration at an evidentiary hearing.