Com. v. Ball, R.

• Court: Superior Court of Pennsylvania
• Decided: August 15, 2022
• Docket: 1438 WDA 2021
• Status: Unpublished

Opinion

J-S14012-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : ROBERT JAMES BALL, JR. : : Appellant : No. 1438 WDA 2021

Appeal from the PCRA Order Entered October 28, 2021 In the Court of Common Pleas of Somerset County Criminal Division at No(s): CP-56-CR-0000729-2019

BEFORE: McLAUGHLIN, J., McCAFFERY, J., and PELLEGRINI, J.*

MEMORANDUM BY McLAUGHLIN, J.: FILED: AUGUST 15, 2022

Robert James Ball, Jr. appeals the denial of his Post Conviction Relief

Act (“PCRA”) petition. 42 Pa.C.S.A. §§ 9541-9546. He argues that the court

erred in rejecting his ineffectiveness claims. Ball also alleges that the PCRA

court erred by not ensuring his attendance at a hearing. We affirm.

A jury convicted Ball of corruption of minors and harassment.1 The

charges were based on an incident in which Ball rubbed the then-11-year-old

victim’s inner thigh and genital area while swimming in a public recreation

area. He also offered her alcohol and a ride on his motorcycle. The court

sentenced him to 24 months to five years of incarceration, in November 2020.

Ball did not file a post-sentence motion and did not appeal.

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* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S.A. §§ 6301(a)(1)(i) and 2709(a), respectively. J-S14012-22

In January 2021, Ball filed the subject pro se PCRA petition. The court

appointed counsel who later filed a motion to withdraw, which the court

granted. The court appointed new counsel who filed an amended petition. The

court held a hearing to determine whether it should grant an evidentiary

hearing. The court did not take evidence at the hearing. The court noted that

though it had requested Ball’s attendance via Zoom, an issue had occurred,

and the prison had not arranged Ball’s attendance through Zoom.

Let me place on the record first there appears to have been a snafu here relative to the Department of Corrections providing us the appropriate link for Mr. Ball to participate today. I don’t have a link and we could not set a Zoom up ourselves. The Department of Corrections requires that they only set up their own Zoom links, so Mr. Ball has not been - - or at least is not being made available by Camp Hill for the argument today.

N.T., PCRA Hearing, 10/13/21, at 2.

PCRA counsel stated that Ball wanted to attend the hearing. Counsel

also said he did not “have any evidence to present from him as my

understanding is this is a Preliminary Hearing and not an Evidentiary Hearing,”

and conceded that he did not need Ball to go forward at the hearing. Id.

The court then proceeded with the hearing without an objection from

PCRA counsel regarding Ball’s inability to attend. PCRA counsel expressed to

the court the issues that Ball wished to raise. These issues included claims of

ineffective assistance of counsel for failing to correct the court at sentencing,

or file a post-sentence motion, regarding alleged errors in the Pre-Sentencing

Investigation (“PSI”) report and the court’s reliance on facts not in evidence.

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Following argument from both parties, the court held the case under

advisement. It later issued an order denying the PCRA petition without an

evidentiary hearing. It concluded that Ball’s ineffectiveness claims were

meritless because he could not prove prejudice. This timely appeal followed.

Ball raises the following issues:

I. Was the Appellant/Defendant, Mr. Ball, denied due process under the federal and state constitutions by not being permitted to participate in the PCRA “preliminary hearing”/”rule to show cause” hearing of October 13, 2021, including even by audio-visual technology?

II. Did the trial court err by denying Defendant’s/Mr. Ball’s [PCRA] Petition claim that trial counsel was ineffective for failure to argue, at sentencing or by subsequent post-sentence motion, that Mr. Ball’s sentence should have been reduced due to errors or mischaracterizations in the PSI report?

III. Did the trial court err by denying Defendant’s/Mr. Ball’s [PCRA] Petition claim that trial counsel was ineffective for failure to argue that his sentence should have been reduced because the trial court took into account, for sentencing purposes, references to alleged “grooming behavior” on the part of [Ball], allegedly perpetuated against the child victim, which were not in evidence at trial?

IV. Did the trial court err by denying Defendant’s/Mr. Ball’s [PCRA] Petition claim that trial counsel was ineffective for failure to argue that his sentence should have been reduced because the trial court took into account, for sentencing purposes, alleged “extreme trauma” and “need for counseling” for the victim, allegedly occurring as a result of [Ball’s] behavior, without evidence that said “extreme trauma” or “need for counseling” was the result of the behavior for which [Ball] was convicted?

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Ball’s Br. at 2-4 (suggested answers omitted).

We review the denial of PCRA relief to determine whether the factual

conclusions of the court are supported by the record and if the court

committed legal error. See Commonwealth v. Pew, 189 A.3d 486, 488

(Pa.Super. 2018).

Ball first argues that the court encroached upon his due process rights

when it proceeded with a hearing without him. He alleges that because he was

not present, he was not able to participate in the hearing and his participation

would have contributed to the fairness of the hearing. He maintains that he

had a right to be present at the hearing and that under Commonwealth v.

Hunsberger, 58 A.3d 32 (Pa. 2012), this right was impugned.

A defendant has a right to be present “at every stage of the trial

including the impaneling of the jury and the return of the verdict, and at the

imposition of sentence[.]” Pa.R.Crim.P. 602(A) (emphasis added). There is

also a rule-based right for a defendant to be present at a PCRA evidentiary

hearing. See Pa.R.Crim.P. 908(C).

Here, all parties agreed on the record that the hearing at issue was not

an evidentiary hearing. The court stated that though an order was submitted

to the prison facility to conduct the hearing via an audio-visual system, Ball’s

prison facility was not able to comply with the request. PCRA counsel did not

object to proceeding with the hearing without Ball. PCRA counsel informed the

court that Ball wanted to be present and that without talking with Ball, he

could not say whether Ball would want counsel to proceed without him. The

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court proceeded with the hearing and counsel did not object to proceeding

with the hearing in Ball’s absence. As such, the claim is waived. Furthermore,

even if counsel had objected, because the hearing was after the trial and

sentencing and was not an evidentiary hearing, there was no right for Ball to

be present, and his citation to Hunsberger is unavailing. See Hunsberger,

58 A.3d at 61-62.

Ball’s three remaining claims challenge his counsel’s effectiveness.

Counsel is presumed effective. A petitioner may overcome this presumption

by pleading and proving that the underlying legal claim has arguable merit;

counsel’s action or inaction lacked any reasonable basis; and counsel’s failing

prejudiced the petitioner. See Commonwealth v. Urwin, 219 A.3d 167, 172

(Pa.Super. 2019). Prejudice exists where the petitioner shows that but for

counsel’s action or inaction, there is a reasonable probability that the outcome

of the proceeding would have been different. See Commonwealth v. Spotz,

84 A.3d 294, 312 (Pa. 2014). In this context, a reasonable probability is one

sufficient to undermine confidence in the outcome of the proceeding. Id. If

the petitioner does not prove all three of the ineffectiveness prongs, we must

reject the claim. Commonwealth v. Daniels, 963 A.2d 409, 419 (Pa. 2009).

Ball claims that counsel provided ineffective assistance during his

sentencing hearing. He claims that counsel was ineffective for failing to argue

for a reduction of his sentence due to allegedly erroneous information in the

PSI. Ball alleges that multiple items in the PSI were incorrect, such as the

number of counts with which the Commonwealth charged him in a prior case,

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a statement that he did not complete any programming when he was

previously incarcerated, and an incorrect age of the victim, listing it as 12

instead of 11. He maintains that if he had known about these errors, he would

have asked counsel to correct the record at the sentencing hearing or file a

post-sentence motion. He maintains that had counsel notified the court of

these errors, he could have received a lower sentence.

The court concluded that Ball failed to show prejudice. It maintained

that the errors did not affect Ball’s sentence. Notably, the PCRA court presided

over Ball’s trial and sentencing. It concluded that though there was a

misstatement about a prior conviction, it was correctly referenced in another

section of the PSI. The court also noted that none of the alleged errors would

have affected Ball’s prior record score and that Ball recognized as much.

We agree that Ball failed to show prejudice. The number of counts in a

prior case was correctly noted elsewhere in the PSI and in any event would

not have changed the guidelines ranges. Similarly, a misstatement of the

victim’s age by one year would not reasonably change the court’s sentencing

calculus. Ball claims the difference between the victim being 11 or 12 “call[s]

into question the reliability of the PSI with regard to victim impact.” Ball’s Br.

at 17. However, Ball does not explain how that it is so, and we do not see it.

We perceive no material difference between the victim being 11 or 12, in terms

of the impact on the victim or otherwise for purposes of sentencing.

As for the statement regarding his completion of programming, Ball

objects to the statement in the PSI that while he was previously incarcerated

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for indecent assault, Ball “did not complete any programming and refused to

participate in Sex Offender treatment.” Id. at 15. Ball “submit[s] that he

participated in all programs which did not require him to admit to having

committed a sex offense which he did not feel that he did.” Id. at 15-16. He

also faults the PSI for failing to state that he allegedly completed work-release

furloughs and commercial driver’s license training. Id. at 15. We again do not

see a material effect on sentencing. Participation in furloughs and job training,

and a refusal to participate in sex offender treatment, even where Ball

allegedly did so out of a desire not to admit to an offense he felt he did not

commit, is not sufficient to show prejudice. The alleged errors in the PSI were

not sufficient – singly or in combination – to undermine confidence in the

outcome of the proceeding. The court did not err in rejecting this claim.

Ball also claims ineffectiveness for not objecting to the sentencing

court’s reliance on facts not in evidence. He alleges that counsel failed to

object to the sentencing court’s describing his behavior toward the victim as

“grooming.” He alleges that the comment was based on a statement during

trial that Ball had told the victim that he would take her away and/or marry

her. Ball states that the victim never gave any such testimony, although

another witness testified that the victim had said that Ball had made the

statement, and the Commonwealth argued it in its closing. Ball alleges that

counsel was ineffective for not filing a post-sentence motion addressing or

correcting the court’s statement at the time of sentencing.

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As with the prior claim, the PCRA court concluded that Ball failed to

prove prejudice. It maintained that Ball’s behavior toward the victim could be

characterized as grooming. The court determined that it was clear from the

evidence that Ball’s offering the victim alcohol and telling the victim and her

mother that he would take the victim on his motorcycle were attempts to build

trust and gain access to the child. It also concluded that counsel objecting to

the comment would not have changed its determination of the appropriate

sentence.

We again agree that Ball failed to show prejudice. At the sentencing

hearing, the trial court stated that the Commonwealth had suggested that Ball

made efforts to groom the child and that “there was a suggestion about the

possibility of: You are the kind of person I could marry or something[.]” See

N.T., Sentencing, 11/6/20, at 16, 17. The court’s statement at sentencing was

evidently an attempt to summarize the Commonwealth’s characterization of

this aspect of the evidence and was not a finding of “grooming” in its technical

sense. This single reference by the court, in the context of the entire

sentencing proceeding, is not sufficient to undermine confidence in the

outcome of the proceeding.

For his final claim, Ball maintains that the court considered facts not in

evidence when it mentioned the “extreme fear, trauma, and anxiety” the

victim experienced because of Ball’s actions. He notes that this statement was

also contained in the recommendations from the probation department.

However, he states that there was no evidence that the victim’s mental status

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was due to his actions. Though the PSI referenced that the victim had attended

counseling, Ball argues that it is not clear that he was the cause. As such, he

argues counsel was ineffective for neither correcting the court’s statement nor

filing a post-sentence motion.

Here, Ball again fails to show prejudice. The court’s statement about the

victim’s mental status appears to be a reference to a portion of the

Recommendations Sheet of the Somerset County Adult Probation. The basis

of this portion of the report is unclear. However, the victim stated at

sentencing that she was there “to make sure that [Ball] does not hurt any

other little girls like he – the way he hurt me.” N.T., Sentencing at 10. As the

trial court explained, it is “self-evident that an 11-year-old child would be

frightened” by the events at issue. Memorandum and Order, filed 10/28/21,

at 5. As there was no claim the victim sustained physical harm, the victim’s

reference to Ball’s having “hurt” her gave the court a basis on which to state

that she suffered fear, trauma, and anxiety as a result of Ball’s actions. Ball’s

final claim fails for lack of prejudice.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8/15/2022

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