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Velazquez v. Superintendent Fayette SCI

United States Court of Appeals, Third Circuit

September 3, 2019


          Argued June 27, 2019

          On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Civ. Action No. 5-15-cv-5177) District Judge: Honorable Edward G. Smith

          Rosemary Auge [ARGUED] Arianna J. Freeman Federal Community Defender Eastern District of Pennsylvania Federal Community Defender Office for the Eastern District of Pennsylvania Counsel for Plaintiff-Appellant

          Travis S. Anderson [ARGUED] Lancaster County Office of District Attorney Counsel for Defendants-Appellees

          Before: SMITH, Chief Judge, CHAGARES, and GREENAWAY, JR., Circuit Judges.



         Actions speak louder than words, but both speak. Our criminal justice system thus presumes that a person's actions and words are altogether meaningful-that is, some degree of intentionality is inherent to them. This presumption developed at a time when we were far less cognizant of the varied ways in which mental illness may influence conduct and speech. In fact, our collective system would only recognize the role of mental illness in the exceedingly rare instance in which such illnesses rendered a defendant incapable of intentionality. A number of states have since made efforts to reflect a more developed understanding. This 28 U.S.C. § 2254 habeas case stems from one such effort by the Commonwealth of Pennsylvania.

         In exchange for a waiver of the right to a jury trial, Pennsylvania law permits a defendant to enter a special guilty plea, formally known as guilty but mentally ill ("GBMI"). If the plea is accepted, the defendant has the opportunity to receive mental health treatment while serving her sentence. The rationale is that providing treatment where needed will reduce the likelihood that a defendant recidivates, which is in her long-term interest and protects the public from the attendant harms and costs of a repeat offender. See Commonwealth v. Davis, 612 A.2d 426, 429-30 (Pa. 1992).

         The waiver and entry of the plea are not enough to secure this opportunity, however. This is because a trial judge is not permitted to accept a GBMI plea unless she examines certain reports, holds a hearing on the sole issue of the defendant's mental illness, and determines that the defendant was mentally ill at the time of the offense. If the result of this process is that the trial judge does not accept the GBMI plea, the defendant's right to trial is returned, and she may choose to exercise it.

         Appellant Anthony Velazquez was charged with numerous offenses arising out of two sets of incidents: one involving his paramour, and the other involving a corrections officer. He had a history of mental illness, so he tried to enter a GBMI plea. The GBMI plea was not accepted. The trial judge did not examine the requisite reports, did not hold the aforementioned hearing, and did not determine whether Velazquez was mentally ill at the time of the offense. But Velazquez's right to trial was never returned to him. The trial judge simply recorded that Velazquez had entered a normal guilty plea. Trial counsel did not object to any of this.

         Velazquez's § 2254 habeas petition claims that counsel's failure to object constituted ineffective assistance of counsel in violation of the Sixth Amendment and resulted in his being deprived of the opportunity to plead GBMI. The claim inheres two questions of first impression for this Court: first, whether we can exercise habeas jurisdiction where a petitioner merely asserts that the wrong guilty plea was entered and, second, whether the requisite prejudice can be shown where the appropriate plea would not have resulted in a reduced sentence.

         The District Court misconstrued the first question and thus determined that it lacked habeas jurisdiction, and it never passed on the second. We answer both in the affirmative. We also agree with Velazquez that the assistance rendered by his trial counsel was constitutionally defective. We will therefore vacate the District Court's order and remand with instructions to grant the writ.

         I. Background

         A. Factual

         Velazquez was charged on three separate Criminal Informations in 2008. The allegations against him arose from two sets of incidents: one involving his paramour, and the other involving a corrections officer. With his paramour, he entered a residence and got into a physical altercation with her and another occupant, threatened her at his preliminary hearing so that she would not testify against him, and, from prison, sent numerous threatening letters to her to the same effect. With the corrections officer, he refused to go into a holding cell while he was detained. The corrections officer "sustained scratches on his right arm while restraining [Velazquez] and attempting to place [him] back inside the cell." JA 208.

         Velazquez was charged with burglary, intimidating a witness, terroristic threats, and harassment for the incidents involving his paramour. He was charged with aggravated assault for the incident with the constable. Due to Velazquez's history of mental illness, his trial counsel advised him to enter a GBMI plea on all charges. However, counsel was apparently unaware of the prerequisites for such a plea to be accepted and for Velazquez to have the opportunity to secure the treatment that is the core benefit of the plea.

         Specifically, Pennsylvania allows "[a] person who waives his right to trial [to] plead [GBMI]." 18 Pa. Cons. Stat. § 314(b) ("section 314(b)"). But the law is express that,

No plea of [GBMI] may be accepted by the trial judge until [s]he has examined all reports prepared pursuant to the Rules of Criminal Procedure, has held a hearing on the sole issue of the defendant's mental illness at which either party may present evidence and is satisfied that the defendant was mentally ill at the time of the offense to which the plea is entered.

Id. (emphases added). In the event that a GBMI plea is not accepted by the trial judge, section 314(b) provides that the defendant is "permitted to withdraw h[er] plea" and is "entitled to a jury trial . . . ." Id. If the GBMI plea is accepted, the defendant may still have "any sentence imposed on h[er] which may lawfully be imposed on any defendant convicted of the same offense." 42 Pa. Cons. Stat. § 9727(a) ("section 9727(a)"). However, she has the opportunity for a hearing and a finding "on the issue of whether [she] . . . is severely mentally disabled and in need of treatment" at the time of sentencing. Id. (emphasis added). The consequence of a severely- mentally-disabled-at-sentencing finding is that the defendant would be provided the requisite treatment pursuant to section 9727(b).

         Thus, all the entry of a GBMI plea provides a defendant is process: a hearing on mental illness at the time of the offense to determine whether the plea will be accepted and, if the plea is accepted, a hearing on whether the defendant is severely mentally disabled at the time of sentencing such that treatment will be provided.

         With this as the background, Velazquez agreed to enter a GBMI plea and thus relinquished his right to trial, as outlined in section 314(b). Entry of the plea did not proceed as section 314(b) requires, however. During the plea colloquy, the judge announced that he would go through the "guilty plea portion" that day, and then resolve the mentally ill aspect "most likely prior to the date set for sentencing . . . ." JA 216-17. He understood that "this is actually anticipated to be a [GBMI] plea," JA 216, and therefore directed counsel to schedule the requisite hearings: "[A]s I indicated earlier, [defense counsel] will be getting the medical records together for a further hearing with regard to [the GBMI] aspect of this plea," JA 226.

         Trial counsel agreed with the judge's proposed process, stating:

Correct, Judge. It was my understanding that we would be having him plead guilty to the facts and then we would be reserving at the time of sentencing a possible hearing to address the [GBMI] and have the Court make that determination at that time.

JA 217 (emphasis added).

         The trial judge proceeded to confirm with Velazquez that what he sought to enter was a GBMI plea. The judge then reiterated that, after taking the plea, he would hold a "further hearing with regard to [the GBMI] aspect of [Velazquez's] plea . . ." JA 226. The Commonwealth's only addition was that it would request a specific hearing "just on the matter of whether [Velazquez] will be sent to a mental health hospital or . . . a state correctional facility that contains a mental health hospital." JA 227.

         Velazquez's trial counsel did not secure the requisite medical records or examinations for a GBMI plea, and no mental health hearing was held. He also did not object when the trial judge ultimately sentenced Velazquez without holding the hearing to which the judge initially alluded. Nor did he take issue when the trial judge recorded the plea as "Guilty Plea," rather ...

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