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Taylor v. Commonwealth

United States District Court, W.D. Pennsylvania

July 3, 2017

KEVIN TAYLOR, Petitioner,
v.
COMMONWEALTH OF PENNSYLVANIA, Respondent.

          MEMORANDUM OPINION AND ORDER

          ROBERT C. MITCHELL United States Magistrate Judge.

         Petitioner, Kevin Taylor, brings this habeas corpus action pursuant to 28 U.S.C. § 2254, challenging his convictions, following a guilty plea entered on March 4, 2013, on two counts of theft by unlawful taking and one count of loitering and prowling at nighttime, and the sentence of six and one-half to thirteen years of imprisonment, imposed by the Court of Common Pleas of Allegheny County, Pennsylvania on August 7, 2013 at Criminal Action Nos. 201200530, 2012008018 and 201212644. The charges stemmed from Petitioner's stealing of three vehicles over a twelve-month period. For the reasons that follow, the petition will be denied.

         Procedural History

         Petitioner was charged, at No. 201200530, with loitering and prowling at nighttime, theft from a motor vehicle and criminal attempt. At No. 2012008018, he was charged with theft by unlawful taking and receiving stolen property. At No. 201212644, he was charged with theft by unlawful taking and receiving stolen property. On March 4, 2013, Petitioner appeared before the Honorable Joseph K. Williams. Petitioner was represented by Patrick Thomassey, Esquire and the Commonwealth by Assistant District Attorney Michael Ball. Petitioner completed a Guilty Plea Explanation of Defendant's Rights form and entered a negotiated plea of guilty. (Answer Ex. 7) (APP 45-54.)[1] Pursuant to the agreement, the Commonwealth withdrew two (2) counts of receiving stolen property and the counts of theft from a motor vehicle and criminal attempt. Sentencing was deferred pending a presentence report. Sentencing was set for May 29, 2013.

         Petitioner failed to appear at sentencing and a warrant was issued. Petitioner was eventually apprehended on the bench warrant. On August 7, 2013, Petitioner appeared before Judge Williams for sentencing. At ¶ 201212644, Count 1, theft by unlawful taking, Petitioner was sentenced to a term of incarceration of not less than three (3) years nor more than six (6) years and a consecutive period of seven (7) years of probation. At ¶ 201208018, Count 1, theft by unlawful taking, Petitioner was sentenced to a term of incarceration of not less than three (3) years nor more than six (6) years and a consecutive period of seven (7) years of probation, which was consecutive to CC 201212644. At ¶ 201200530, Count 1, loitering and prowling at nighttime, Petitioner was sentenced to a term of incarceration of not less than six (6) nor more than twelve (12) months and a consecutive term of one (1) year of probation, which was consecutive to CC 201208018. Thus, Petitioner was sentenced to an aggregate term of incarceration of not less than six and one half (6½) years nor more thirteen (13) years of imprisonment and a consecutive term of fifteen (15) years of probation.

         On August 15, 2013, Petitioner, through Jeffrey Weinberg, Esquire, filed a Motion to Withdraw Plea. (Answer Ex. 8) (APP 55-59). On August 30, 2013, the Commonwealth, through Assistant District Attorney Ball, filed a Commonwealth's Response to Post-Sentence Motion. (Answer Ex. 9) (APP 60-67). On September 4, 2013, Petitioner, through Attorney Weinberg, filed an Amended Motion to Withdraw Plea. (Answer Ex. 10) (APP 68-71). On December 17, 2013, the post sentence motion was denied by operation of law.

         On January 16, 2014, Petitioner, through Attorney Weinberg, filed a Notice of Appeal. (Answer Ex. 11) (APP 72-76). On February 13, 2014, Petitioner, through Attorney Weinberg, filed a Concise Statement of Error Complained of Pursuant to Rule 1925(b). (Answer Ex.12) (APP 77-79). On March 7, 2014, Judge Williams filed his Opinion. (Answer Ex. 13) (APP 80-83). Petitioner's appeal was docketed in the Superior Court of Pennsylvania at No. 118 WDA 2014. On April 8, 2014, Petitioner, through Attorney Weinberg, filed a Praecipe to Discontinue. On April 8, 2014, Petitioner's appeal was discontinued. (Answer Ex. 15) (APP 86).

         On July 7, 2014, Petitioner, through Attorney Weinberg, filed a Post Conviction Relief Act Petition (PCRA). (Answer Ex. 16) (APP 87-97). In the petition, Petitioner has raised the following claims:

A. Defendant's plea was unknowing involuntary unintelligent and entered as a result of ineffective assistance of counsel in violation of Article I, Section 9 of the Pennsylvania Constitution and the Sixth and Fourteenth Amendments to the United States Constitution as Attorney Thomassey prepared defendant's 68 question guilty plea colloquy[, ] answered the questions himself and failed to adequately explain to defendant what he was signing; B. Defendant attempted to withdraw his plea of guilty prior to sentencing by this court and counsel made no attempt to preserve this issue for the court[']s review.

(Answer Ex. 16 at 3) (APP 90.)

         On July 11, 2014, the Commonwealth, through Assistant District Attorney Ronald Wabby, filed a Commonwealth's Answer to Post Conviction Relief Act Petition. (Answer Ex. 17) (APP 98-116). On July 25, 2014, Judge Williams issued an Order directing Petitioner to file an Amended PCRA petition to correct the pleading defects that were noted by the Commonwealth. On August 27, 2014, Petitioner, through Attorney Weinberg, filed an Amended PCRA petition. (Answer Ex. 18) (APP 117-128). On November 19, 2014, Petitioner appeared before Judge Williams for an evidentiary hearing. Attorney Weinberg represented Petitioner. ADA Wabby represented the Commonwealth. Testimony was heard from the Petitioner and from Attorney Thomassey.

         On April 6, 2015, Judge Williams filed an Order, which granted relief on the sentencing claim (correcting his sentence to 3 to 6 years of imprisonment, followed by one year of probation) and denied relief on the guilty plea-based claim. (Answer Ex. 19) (APP 129-130). Also, on April 6, 2015, Judge Williams filed an Opinion. (Answer Ex. 20) (APP 131-132).

         On April 30, 2015, Petitioner, through Attorney Weinberg, filed a Notice of Appeal. (Answer Ex. 21) (APP 133-142). On May 12, 2015, Judge Williams filed an Opinion, which incorporated the April 6, 2015 Opinion and elaborated upon it. (Answer Ex. 22) (APP 143-144).

         On July 7, 2015, Petitioner, through Attorney Weinberg, filed a Brief for Appellant in the Superior Court of Pennsylvania, which was docketed at No. 674 WDA 2015. (Answer Ex. 24) (APP 149-227). On appeal, Petitioner raised the following claims:

I. That the trial court erred in dismissing Appellant's PCRA Petition by concluding that his earlier guilty plea was knowingly and voluntarily made and as such that his trial counsel was effective.
II. That the trial court erred in dismissing Appellant's PCRA Petition by concluding that trial counsel was effective despite failing to request that the Trial Court create a record of his request to withdraw his plea of guilty.

(Answer Ex. 24 at iv) (APP 153.)

         On December 23, 2015, the Superior Court affirmed the judgment of the Court of Common Pleas of Allegheny County denying the PCRA petition. (Answer Ex. 26) (APP 246-253).

         On January 20, 2016, Petitioner, through Attorney Weinberg, filed a Petition for Allowance of Appeal in the Supreme Court of Pennsylvania, which was docketed at No. 26 WAL 2016. (Answer Ex. 28) (APP 257-296). In his petition, Petitioner raised the following claim:

I. Did the Superior Court err as a matter of law in holding [that] Mr. Taylor failed to establish by a preponderance of the evidence that trial counsel was ineffective, contrary to this Honorable Court's decision in Commonwealth v. Forbes?

(Answer Ex. 28 at 4) (APP 263.) On April 13, 2016, the Supreme Court denied the petition. (Answer Ex. 30) (APP 298).

         On June 24, 2016, Petitioner filed this action pro se, and it was docketed at Civil Action No. 16-945. In his pro se petition, Petitioner raised the following claim:

Attorney told me to waive my case to court that he worked a plea for 1 (one) year of probation. I was never told there wasn't a plea agreement until after I plead guilty. If I had known there wasn't a plea agreement, I never would have plead guilty.

(ECF No. 1 ¶ 12.) On September 1, 2016, Petitioner, through Chris Rand Eyster, Esquire, filed an Amended Petition for Writ of Habeas Corpus (ECF No. 14) and Petitioner's Brief in Support of Habeas Corpus Petition (ECF No. 15). In his Amended Petition for Writ of Habeas Corpus, Petitioner raises the following claim:

Petitioner was denied effective assistance of counsel where he requested counsel to file a motion to withdraw his guilty plea before sentencing and counsel failed to file a motion to withdraw Petitioner's guilty plea prior to sentencing.
The Petitioner was instructed by counsel to waive his preliminary hearing because counsel told him that he had a plea deal worked out to one year of probation. Petitioner was under the impression when he pled guilty that he was getting that 1-year probation deal. However, prior to sentencing, counsel told Petitioner that that judge wasn't happy with him. So, Petitioner asked counsel to withdraw his guilty plea prior to sentencing and counsel refused to do so saying “[n]ot with me as your attorney.” (N.T. 11/19/14, at 11). At sentencing, before pronouncement of sentence, Petitioner asked the court to withdraw his plea. Petitioner stated the reason for this request was “I am not totally the guilty party[.]” (N.T. 8/7/13, at 4). At that point counsel refused to advocate on behalf of his client and created a conflict of interest. Nonetheless, the court summarily denied the request without any inquiry of Petitioner on the record. Petitioner filed a motion to withdraw his guilty plea after sentencing, which was denied.

(ECF No. 14 ¶ 12.)

         On September 6, 2016, Respondent filed an Answer to the amended petition (ECF No. 16). Respondent concedes that the petition is timely and that the claim presented is exhausted and not procedurally defaulted. (Answer at 10, 13, 14.) However, it argues that the claim is without merit because the Superior Court's decision is not an unreasonable application of Supreme Court law.

         On November 21, 2016, Petitioner filed a reply brief (ECF No. 22), which was corrected on November 29, 2016 (ECF No. 23.) The reply brief argues that there were several “fair and just reasons” why Petitioner should have been allowed to withdraw his guilty plea: 1) Petitioner believed (perhaps erroneously) that he was going to receive a sentence of probation, not 3 to 6 years of imprisonment; 2) counsel told him that Judge Williams would be “upset” with him because of his bond forfeiture status, and thus he would be predisposed to impose a heavy sentence on Petitioner, which is exactly what occurred; and 3) Petitioner testified that he was “not totally the guilty party” and the Commonwealth never established that he knew or should have known that he was driving a stolen car, as required to secure convictions for the crimes of theft and receiving stolen property.

         On March 1, 2017, an order was entered (ECF No. 24), directing the parties to file supplemental briefs on the issue of prejudice. Petitioner filed his supplemental brief on March 31, 2017 (ECF No. 26). Respondents filed their supplemental brief on April 11, 2017 (ECF No. 27). Petitioner filed a reply brief on May 3, 2017 (ECF No. 30).

         Exhaustion

         The first issue that must be addressed by a federal district court when considering a habeas corpus petition filed by a state prisoner is whether the prisoner has exhausted available state court remedies as required by 28 U.S.C. §§ 2254(b) and (c). The Antiterrorism and Effective Death Penalty Act of 1996 (the AEDPA), provides that:

(1) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that-
(A) the applicant has exhausted the remedies available in the courts of the State; or
(B)(i) there is an absence of available State corrective process; or
(ii) circumstances exist that render such process ineffective to protect the ...

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