Com. v. Ezell, C., Jr.

• Court: Superior Court of Pennsylvania
• Decided: April 18, 2023
• Docket: 664 MDA 2022
• Status: Unpublished

Opinion

J-S44009-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : : v. : : : CRAIG LAMONT EZELL JR. : No. 664 MDA 2022

Appeal from the PCRA Order Entered April 13, 2022 In the Court of Common Pleas of Dauphin County Criminal Division at No(s): CP-22-CR-0001445-2017

BEFORE: PANELLA, P.J., McLAUGHLIN, J., and PELLEGRINI, J.*

MEMORANDUM BY PANELLA, P.J.: FILED: APRIL 18, 2023

The Commonwealth of Pennsylvania appeals from the order entered on

April 13, 2022, granting Craig Lamont Ezell, Jr.’s amended petition filed

pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-

9546, and vacating Ezell's judgment of sentence. On appeal, the

Commonwealth argues the PCRA court erred in finding plea counsel had been

ineffective. We find the record supports the PCRA court’s decision.

Accordingly, we affirm.

On June 19, 2018, Ezell entered a negotiated guilty plea to three counts

of possession of firearm prohibited, and one count each of use or possession

of drug paraphernalia, possession with intent to deliver a controlled substance,

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* Retired Senior Judge assigned to the Superior Court. J-S44009-22

and obliterating a mark of identification on a firearm. Plea counsel explained

that Assistant United States Attorney William Behe (“AUSA Behe”) had

contacted counsel and was threatening to indict Ezell on federal charges if

Ezell did not plead guilty to the state charges. N.T., Guilty Plea Hearing,

6/19/18, at 3 ("This plea is in lieu of a federal indictment, per [AUSA] Behe.").

Plea counsel withdrew a previously filed suppression motion and reiterated

that Ezell was entering his plea because of the threat of a federal indictment

with the possibility of a harsher federal sentence. Id. at 3-4 (“This is in lieu of

federal indictment .... [Ezell] has made the decision knowingly [] that federal

indictment is not coming down now, and should he withdraw his plea, it will

be."). AUSA Behe did not appear at the plea hearing and no documentation of

any communications with the U.S. Attorney’s Office were provided to the

court. The court accepted the plea and deferred sentencing at Ezell’s request.

Sentencing took place on December 28, 2018. In the interim between

Ezell’s guilty plea and sentencing, the trial court granted the suppression

motions filed by Ezell’s co-defendants and the Commonwealth dropped the

charges against them. See N.T., Sentencing Hearing, 12/28/18, at 3. Plea

counsel acknowledged the state charges against Ezell could be dropped, but

noted that AUSA Behe was still threatening to press federal charges against

Ezell. Plea counsel indicated that if a similar suppression motion was

unsuccessful in federal court, Ezell would likely be sentenced to fifteen years’

federal imprisonment. Plea counsel stated he was advising Ezell not to

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withdraw his guilty plea. Ezell agreed, and the court sentenced him to five to

ten years’ imprisonment in accordance with the plea agreement. Ezell did not

file post-sentence motions or a direct appeal.

On May 17, 2019, Ezell filed a pro se PCRA petition. PCRA counsel was

appointed, but did not file an amended petition. Instead, on June 17, 2019,

counsel filed a motion to withdraw as counsel pursuant to Commonwealth

v. Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550

A.2d 213 (Pa. Super. 1988) (en banc). Only two days later, the PCRA court

granted counsel leave to withdraw, and issued notice of its intent to dismiss

the petition without a hearing pursuant to Pa.R.Crim.P. 907. After receiving

extensions of time, Ezell filed a response to the Rule 907 notice and sought

leave to file an amended PCRA petition to raise claims of ineffective assistance

of plea counsel and PCRA counsel. The PCRA court subsequently dismissed the

petition after denying leave to amend. Ezell filed a timely appeal.

On June 6, 2021, a panel of this Court vacated the order dismissing

Ezell’s PCRA petition, finding the PCRA court erred by not providing Ezell with

an opportunity to respond to PCRA counsel's motion to withdraw before

granting it, and in denying Ezell’s request for leave to amend his PCRA

petition. See Commonwealth v. Ezell, 258 A.3d 489 (Pa. Super. filed June

2, 2021) (unpublished memorandum). Further, this Court found Ezell’s claims

of ineffective assistance of PCRA and plea counsel had arguable merit. See id.

Accordingly, we vacated the PCRA court’s order dismissing the PCRA petition

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and remanded for the PCRA court to appoint new PCRA counsel, grant new

PCRA counsel leave to file an amended PCRA petition, and hold an evidentiary

hearing. See id.

New PCRA counsel was appointed and filed an amended PCRA petition,

asserting (1) plea counsel was ineffective for advising Ezell to plead guilty

under federal duress, and (2) PCRA counsel was ineffective for failing to raise

the ineffectiveness of plea counsel. On April 13, 2022, after an evidentiary

hearing, the PCRA court granted Ezell’s amended PCRA petition and vacated

his guilty plea and sentence.

On May 4, 2022, the Commonwealth filed a notice of appeal, purportedly

from a January 5, 2022 trial court order granting a suppression motion. There

is no trial court docket entry for January 5, 2022. However, the order appealed

from that is attached to the Commonwealth’s notice of appeal and docketing

statement is the April 13, 2022 order granting PCRA relief and vacating Ezell’s

judgment of sentence. The April 13, 2022 order is entered on the PCRA court

docket, and the Commonwealth’s docketing statement indicates that the

instant appeal is from the April 13, 2022 order.

Because the notice of appeal did not refer to the correct order, this Court

directed the Commonwealth to show cause why the instant appeal should not

be quashed as having been taken from an order that is not entered upon the

appropriate docket of the lower court and as untimely filed. The

Commonwealth filed a response, confirming the appeal was taken from the

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April 13, 2022 PCRA order, and explaining that the notice of appeal was

adapted from another case and counsel neglected to revise it to include the

correct order. This issue was referred to the merits panel.

Although the Commonwealth's notice of appeal purports to appeal from

a non-existent order, our review of the record reveals the Commonwealth

clearly intended to appeal the PCRA court's April 13, 2022 order. A defective

notice of appeal, listing an incorrect date, does not prevent us from reviewing

this appeal. See Commonwealth v. One 1988 Ford Coupe VIN No.

1FABP41A9JF143651, 574 A.2d 631, 633 n.1 (Pa. Super. 1990) (error in

notice of appeal stating incorrect date on which order was entered was

harmless).

Apart from listing an incorrect date, the Commonwealth's notice of

appeal was timely because the Commonwealth filed it within 30 days of the

April 13, 2022 order. See Pa.R.A.P. 903(a) (notice of appeal shall be filed

within 30 days after entry of order from which appeal taken).

On appeal, the Commonwealth argues the PCRA court erred in granting

Ezell’s PCRA petition. Specifically, the Commonwealth contends plea counsel

was not ineffective by not securing a written agreement with the federal

government to not prosecute and/or not providing Ezell documentation from

AUSA Behe regarding the alleged agreement.

Our standard of review of a trial court order granting or denying relief under the PCRA calls upon us to determine whether the determination of the PCRA court is supported by the evidence of record and is free of legal error. The PCRA court's findings will not

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be disturbed unless there is no support for the findings in the certified record.

Commonwealth v. Barndt, 74 A.3d 185, 191-192 (Pa. Super. 2013)

(citations and internal quotation marks omitted).

“A criminal defendant has the right to effective counsel during a plea

process as well as during trial.” Commonwealth v. Rathfon, 899 A.2d 365,

369 (Pa. Super. 2006) (citation omitted). However, “[a]llegations of

ineffectiveness in connection with the entry of a guilty plea will serve as a

basis for relief only if the ineffectiveness caused the defendant to enter an

involuntary or unknowing plea.” Commonwealth v. Hickman, 799 A.2d 136,

141 (Pa. Super. 2002) (citation omitted). Also, “[w]here the defendant enters

his plea on the advice of counsel, the voluntariness of the plea depends upon

whether counsel’s advice was within the range of competence demanded of

attorneys in criminal cases.” Id. (internal quotation marks and citations

omitted).

We presume counsel is effective, and a PCRA petitioner bears the burden

to prove otherwise. See Commonwealth v. Bennett, 57 A.3d 1185, 1195

(Pa. 2012). The test for ineffective assistance of counsel is the same under

both the Federal and Pennsylvania Constitutions. See Strickland v.

Washington, 466 U.S. 668, 687-88 (1984); Commonwealth v. Kimball,

724 A.2d 326, 330-332 (Pa. 1999). Ezell had to demonstrate: (1) his

underlying claim is of arguable merit; (2) the particular course of conduct

pursued by counsel did not have some reasonable basis designed to effectuate

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his interests; and (3) but for counsel’s ineffectiveness, there is a reasonable

probability that the outcome of the proceedings would have been different.

See Commonwealth v. Solano, 129 A.3d 1156, 1162-63 (Pa. 2015). A

failure to satisfy any prong of the test for ineffectiveness requires rejection of

the claim. See id. at 1163. Where, as here, the petitioner pleaded guilty, in

order to satisfy the prejudice requirement, he had to 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.” Rathfon, 899 A.2d

at 370 (citation omitted).

The Commonwealth boldly states in one sentence that Ezell “is unable

to establish arguable merit to his claim, that trial counsel did not have a

reasonable strategy, or prejudice.” Appellant’s Brief, at 11. Other than this

passing statement to the elements of the test for ineffectiveness, the

Commonwealth fails to cite to any case law discussing the test, nor does it

actually discuss any of the elements in further detail.

Instead, the Commonwealth argues Ezell did not establish his

suppression claim is still viable, see Appellant’s Brief, at 10;1 Ezell’s statement

that he would have gone to trial instead of pleading guilty was based on an

“erroneous” belief that he could still be indicted federally despite the guilty

1 The Commonwealth does not explain how the current viability of a suppression claim is relevant to a determination of whether a guilty plea was properly entered in the first place.

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plea, Id. at 11; and that Ezell was informed of the agreement in writing. See

id. (citing to emails that are attached to the appellate brief, but were never

admitted into evidence, and are not a part of the certified record).

The Commonwealth then spends a considerable amount of its brief

discussing contract law. See Appellant’s Brief, at 12-13. However, the PCRA

court made clear that its reasoning did not hinge on whether or not a valid

contract was created:

[COMMONWEALTH]: … But, you know, as to whether there was a written contract or anything, there are emails between -- I believe it was referenced at least between [plea counsel] and [AUSA] Behe, and it is the petitioner's burden to, you know, establish his claims.

THE COURT: But how relevant are the communications between [plea counsel] and [AUSA] Behe if those communications weren't effectively communicated with the client in this case?

[COMMONWEALTH]: Well, I think they were in tandem, kind of by a telephone system. [AUSA Behe] and [plea counsel] come to an agreement. It's a verbal agreement. It doesn't have to be written.

THE COURT: But [plea counsel] is not the party to the agreement --

[COMMONWEALTH]: Well --

THE COURT: -- [Ezell] is.

[COMMONWEALTH]: The attorney regularly creates offers with the Commonwealth and then presents them to his client.

THE COURT: And if in this case that was in letter form, and that letter was shared with [Ezell] and was then able to either accept it or ask valid questions on it it would be a slam dunk on your side to say that he was fully informed, he made a conscious decision -

[COMMONWEALTH]: Okay. Sure.

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THE COURT: -- and he stuck with it. But in this case, since [Ezell] was, according to him, relying upon the judgment of his attorney, which quite possibly may play out to be very wise; however, he was never really given the communications from [AUSA] Behe nor was there a letter confirming that indeed if they took this plea there'd be no federal prosecution, that would be ironclad. But that's missing as well, is it not?

[COMMONWEALTH]: I would just respond to that, Your Honor, going down this contract hole as to [parol] evidence that the agreement was -- I mean, fully manifested and attested to here. So there really can't be any other evidence presented here because there's no fraud in the inducement alleged or anything like that.

THE COURT: Except we’re talking PCRA and the duty of the attorney to fully inform the client and to have the client make the decision. The one agreement there seems to be between the two is [plea counsel] made what is, in his mind, a prudent decision to protect his client, but he’s not able to show the correspondence that documents that his client fully understood.

And again, you don’t have to talk about the terms of dual sovereignty, but you have to understand that the state does not [bind] the federal, federal government doesn’t bind the state. And there’s nuances that were not communicated with the defendant before he entered his plea. And that’s the snag that I’m having trouble getting around.

N.T., PCRA Hearing, 4/13/22, at 37-39.

As the Commonwealth did not center its argument on any of the

ineffectiveness prongs, we could find its claim waived for failure to sufficiently

develop its argument on appeal. See Commonwealth v. Martz, 232 A.3d

801, 811 (Pa. Super. 2020). However, even if not waived, we conclude the

transcript of the PCRA evidentiary hearing supports the PCRA court’s

determination, and find no reason to disturb the court’s credibility

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determinations. “We emphasize 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.” Rathfon,

899 A.2d 365, 370 (Pa. Super. 2006).

The record reveals that even though the evidence against Ezell in state

court would be suppressed and his charges nolle prossed, similar to his co-

defendants, Ezell instead pled guilty based on the advice of counsel to plead

to avoid federal charges; that counsel admitted he did not provide Ezell with

any written confirmation of an agreement with AUSA Behe; that no agreement

was made directly between Ezell and AUSA Behe; and that counsel admits he

did not explain the concept of dual sovereignty, specifically or otherwise, to

Ezell, such that Ezell did not understand that, by law, he could still be indicted

federally despite the alleged conversations with AUSA Behe.

The Commonwealth argues on appeal that a written, enforceable

contract was formed between plea counsel and AUSA Behe, citing emails

between plea counsel and AUSA Behe. However, these emails were not

presented to the PCRA court prior to its decision and are not a part of the

certified record:

Since the time of the PCRA hearing, both US Attorney Behe and [plea counsel] have provided undersigned counsel with written emails evidencing this agreement. Undersigned counsel contacted [Ezell’s appellate counsel] as well as chambers, seeking to supplement the record with these emails pursuant to Pa.R.A.P. 1926, but [Ezell’s appellate counsel] objected. Therefore, undersigned counsel has appended these emails to this brief, which bear strong indicia of reliability. Counsel for the

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Commonwealth is willing to obtain affidavits from US Attorney Behe and [plea counsel] authenticating the emails if this Honorable Court requires.

Appellant’s Brief, at 14. The Commonwealth therefore waived the issue of their

relevance to Ezell’s claims. See Pa.R.A.P. 302(a). Further, even if it had not

been waived, their absence from the certified record precludes our review of

them. See Commonwealth v. Brown, 161 A.3d 960, 968 (Pa. Super. 2017).

Additionally, it is within the province of the PCRA court to make

credibility determinations, and the PCRA court clearly believed Ezell when he

testified that he would not have pled guilty had he known there was a

possibility he could still be indicted federally and receive time on top of his

state sentence. See PCRA Court Opinion, at 9.2

On this record, we cannot say the PCRA court abused its discretion in

granting PCRA relief, and vacating judgment of sentence. Accordingly, we

affirm the order entered below.

Order affirmed. Jurisdiction relinquished.

Judge Pellegrini joins the memorandum.

2 The Commonwealth briefly notes the federal statute of limitations for non- capital offenses has run. See Appellant’s Brief, at 11. But the Commonwealth does not provide any analysis of how this impacts our analysis. It has therefore waived any argument on this point by failing to develop it. In any event, we observe that the federal limitation period begins to run from the date of the offense. See 18 U.S.C. § 3282(a). Here, Ezell’s charges arose from police finding him in possession of various contraband on January 24, 2017. See N.T., Guilty Plea Hearing, 6/19/18, at 6. Therefore, when Ezell filed his petition, and when the PCRA court issued its decision, which is currently under review, the federal limitation period had not yet expired.

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Judge McLaughlin concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 4/18/2023

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