J-S31003-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA
v.
JESSICA RIZOR
Appellant No. 291 WDA 2016
Appeal from the PCRA Order February 5, 2016 In the Court of Common Pleas of Washington County Criminal Division at No(s): CP-63-CR-0002637-2004
BEFORE: PANELLA, J., DUBOW, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY PANELLA, J. FILED JUNE 8, 2017
Appellant, Jessica Rizor, appeals from the order entered in the
Washington County Court of Common Pleas, denying her petition pursuant
to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. We
vacate the PCRA court’s order denying relief, and remand for an evidentiary
hearing.
A panel of our Court previously summarized the facts of this case as
follows:
In 2004, Appellant, a married woman who lived with her husband and her mother, concealed the fact that she was pregnant from family and co-workers. In the early morning hours of the day following Thanksgiving 2004, Appellant gave birth to a live full-term baby girl in the bathroom of her home and disposed of the child in plastic bags. Husband found the deceased child after Appellant insisted that Husband take the garbage out of the house. Husband had his mother-in-law call 911. Appellant was taken to the hospital. The Medical Examiner J-S31003-17
took the deceased child for an autopsy and discovered that the child was born alive and died by asphyxiation. Appellant gave a written statement to police, wherein she detailed the events surrounding the incident.
Commonwealth v. Rizor, No. 1128 WDA 2008 (Pa. Super., filed 7/21/10)
(unpublished memorandum).
Appellant was charged with murder and other crimes stemming from
the incident. The Commonwealth offered Appellant a 5½ to 30-year
sentence, in exchange for a plea of guilty but mentally ill to third-degree
murder. The court conducted a plea colloquy, at which time Appellant
rejected the deal. Appellant proceeded to a jury trial, where she was
convicted of first-degree murder, concealing the death of a child, and abuse
of a corpse. On June 5, 2008, the trial court sentenced Appellant to a term
of life imprisonment. On appeal, this Court affirmed Appellant’s judgment of
sentence, and the Pennsylvania Supreme Court denied Appellant’s petition
for allowance of appeal. Appellant timely filed a PCRA petition, which was
subsequently amended twice with permission of the PCRA court.
After Appellant’s final amendment of her PCRA petition, the PCRA court
issued Rule 907 notice of its intent to dismiss the petition without a hearing.
Appellant filed a response and requested a hearing. The PCRA court heard
argument on this matter, at which Appellant’s PCRA counsel argued
Appellant’s trial counsel was ineffective for failing to present a cognizable
trial strategy. After substantial argument, the PCRA court declined to have
an evidentiary hearing to permit Appellant to present evidence from her trial
attorney about his strategy and about his alleged ineffectiveness. The PCRA
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court ultimately dismissed Appellant’s PCRA petition. This timely appeal
followed.
On appeal, Appellant argues the PCRA court erred by dismissing her
PCRA petition without an evidentiary hearing. Appellant avers that but for
trial counsel’s assurances that she would “never set foot in state prison” and
counsel’s advice to reject the plea offer, Appellant would not have proceeded
to trial. Appellant contends the evidence against her was insurmountable,
and a competent attorney never would have advised her to risk trial.
Appellant asserts trial counsel repeatedly tried to argue a diminished
capacity defense, but the court previously determined before the trial began
that any evidence of Appellant’s mental health was inadmissible. Appellant
concludes these are genuine issues of material fact as to trial counsel’s
competence, and that she is entitled to an evidentiary hearing. We agree.
“On appeal from the denial of PCRA relief, our standard and scope of
review is limited to determining whether the PCRA court’s findings are
supported by the record and without legal error.” Commonwealth v.
Edmiston, 65 A.3d 339, 345 (Pa. 2013) (citation omitted). “[Our] scope of
review is limited to the findings of the PCRA court and the evidence of
record, viewed in the light most favorable to the prevailing party at the
PCRA court level.” Commonwealth v. Koehler, 36 A.3d 121, 131 (Pa.
2012) (citation omitted). “[T]his Court applies a de novo standard of review
to the PCRA court’s legal conclusions.” Commonwealth v. Spotz, 18 A.3d
244, 259 (Pa. 2011) (citation omitted).
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It is well-settled that
[t]o plead and prove ineffective assistance of counsel a petitioner must establish: (1) that the underlying issue has arguable merit; (2) counsel’s actions lacked an objective reasonable basis; and (3) actual prejudice resulted from counsel's act or failure to act.
Commonwealth v. Rykard, 55 A.3d 1177, 1189-1190 (Pa. Super. 2012)
(citation omitted). A failure to satisfy any prong of the test will require
rejection of the claim. See Commonwealth v. Spotz, 84 A.3d 294, 311
(Pa. 2014).
The right to an evidentiary hearing on a post-conviction petition is not
absolute. See Commonwealth v. Jordan, 772 A.2d 1011, 1014 (Pa.
Super. 2001). It is within the PCRA court’s discretion to decline to hold a
hearing if the petitioner’s claim is patently frivolous and has no support
either in the record or other evidence. See id.
It is the responsibility of the reviewing court on appeal to examine
each issue raised in the PCRA petition in light of the record certified before it
in order to determine if the PCRA court erred in its determination that there
were no genuine issues of material fact in controversy and in denying relief
without conducting an evidentiary hearing. See Commonwealth v.
Hardcastle, 701 A.2d 541, 542-543 (Pa. 1997). We review a PCRA court’s
decision to deny a claim without a hearing for an abuse of discretion.
Commonwealth v. Stewart, 84 A.3d 701, 707 (Pa. Super. 2013) (citations
omitted).
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In “ineffectiveness claims in particular, if the record reflects that the
underlying issue is of no arguable merit or no prejudice resulted, no
evidentiary hearing is required.” Commonwealth v. Bauhammers, 92
A.3d 708, 726-727 (Pa. 2014) (citation omitted). “Arguable merit exists
when the factual statements are accurate and could establish cause for
relief. Whether the facts rise to the level of arguable merit is a legal
determination.” Commonwealth v. Barnett, 121 A.3d 534, 540 (Pa.
Super. 2015) (citation omitted). “Prejudice is established if there is a
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J-S31003-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA
v.
JESSICA RIZOR
Appellant No. 291 WDA 2016
Appeal from the PCRA Order February 5, 2016 In the Court of Common Pleas of Washington County Criminal Division at No(s): CP-63-CR-0002637-2004
BEFORE: PANELLA, J., DUBOW, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY PANELLA, J. FILED JUNE 8, 2017
Appellant, Jessica Rizor, appeals from the order entered in the
Washington County Court of Common Pleas, denying her petition pursuant
to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. We
vacate the PCRA court’s order denying relief, and remand for an evidentiary
hearing.
A panel of our Court previously summarized the facts of this case as
follows:
In 2004, Appellant, a married woman who lived with her husband and her mother, concealed the fact that she was pregnant from family and co-workers. In the early morning hours of the day following Thanksgiving 2004, Appellant gave birth to a live full-term baby girl in the bathroom of her home and disposed of the child in plastic bags. Husband found the deceased child after Appellant insisted that Husband take the garbage out of the house. Husband had his mother-in-law call 911. Appellant was taken to the hospital. The Medical Examiner J-S31003-17
took the deceased child for an autopsy and discovered that the child was born alive and died by asphyxiation. Appellant gave a written statement to police, wherein she detailed the events surrounding the incident.
Commonwealth v. Rizor, No. 1128 WDA 2008 (Pa. Super., filed 7/21/10)
(unpublished memorandum).
Appellant was charged with murder and other crimes stemming from
the incident. The Commonwealth offered Appellant a 5½ to 30-year
sentence, in exchange for a plea of guilty but mentally ill to third-degree
murder. The court conducted a plea colloquy, at which time Appellant
rejected the deal. Appellant proceeded to a jury trial, where she was
convicted of first-degree murder, concealing the death of a child, and abuse
of a corpse. On June 5, 2008, the trial court sentenced Appellant to a term
of life imprisonment. On appeal, this Court affirmed Appellant’s judgment of
sentence, and the Pennsylvania Supreme Court denied Appellant’s petition
for allowance of appeal. Appellant timely filed a PCRA petition, which was
subsequently amended twice with permission of the PCRA court.
After Appellant’s final amendment of her PCRA petition, the PCRA court
issued Rule 907 notice of its intent to dismiss the petition without a hearing.
Appellant filed a response and requested a hearing. The PCRA court heard
argument on this matter, at which Appellant’s PCRA counsel argued
Appellant’s trial counsel was ineffective for failing to present a cognizable
trial strategy. After substantial argument, the PCRA court declined to have
an evidentiary hearing to permit Appellant to present evidence from her trial
attorney about his strategy and about his alleged ineffectiveness. The PCRA
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court ultimately dismissed Appellant’s PCRA petition. This timely appeal
followed.
On appeal, Appellant argues the PCRA court erred by dismissing her
PCRA petition without an evidentiary hearing. Appellant avers that but for
trial counsel’s assurances that she would “never set foot in state prison” and
counsel’s advice to reject the plea offer, Appellant would not have proceeded
to trial. Appellant contends the evidence against her was insurmountable,
and a competent attorney never would have advised her to risk trial.
Appellant asserts trial counsel repeatedly tried to argue a diminished
capacity defense, but the court previously determined before the trial began
that any evidence of Appellant’s mental health was inadmissible. Appellant
concludes these are genuine issues of material fact as to trial counsel’s
competence, and that she is entitled to an evidentiary hearing. We agree.
“On appeal from the denial of PCRA relief, our standard and scope of
review is limited to determining whether the PCRA court’s findings are
supported by the record and without legal error.” Commonwealth v.
Edmiston, 65 A.3d 339, 345 (Pa. 2013) (citation omitted). “[Our] scope of
review is limited to the findings of the PCRA court and the evidence of
record, viewed in the light most favorable to the prevailing party at the
PCRA court level.” Commonwealth v. Koehler, 36 A.3d 121, 131 (Pa.
2012) (citation omitted). “[T]his Court applies a de novo standard of review
to the PCRA court’s legal conclusions.” Commonwealth v. Spotz, 18 A.3d
244, 259 (Pa. 2011) (citation omitted).
-3- J-S31003-17
It is well-settled that
[t]o plead and prove ineffective assistance of counsel a petitioner must establish: (1) that the underlying issue has arguable merit; (2) counsel’s actions lacked an objective reasonable basis; and (3) actual prejudice resulted from counsel's act or failure to act.
Commonwealth v. Rykard, 55 A.3d 1177, 1189-1190 (Pa. Super. 2012)
(citation omitted). A failure to satisfy any prong of the test will require
rejection of the claim. See Commonwealth v. Spotz, 84 A.3d 294, 311
(Pa. 2014).
The right to an evidentiary hearing on a post-conviction petition is not
absolute. See Commonwealth v. Jordan, 772 A.2d 1011, 1014 (Pa.
Super. 2001). It is within the PCRA court’s discretion to decline to hold a
hearing if the petitioner’s claim is patently frivolous and has no support
either in the record or other evidence. See id.
It is the responsibility of the reviewing court on appeal to examine
each issue raised in the PCRA petition in light of the record certified before it
in order to determine if the PCRA court erred in its determination that there
were no genuine issues of material fact in controversy and in denying relief
without conducting an evidentiary hearing. See Commonwealth v.
Hardcastle, 701 A.2d 541, 542-543 (Pa. 1997). We review a PCRA court’s
decision to deny a claim without a hearing for an abuse of discretion.
Commonwealth v. Stewart, 84 A.3d 701, 707 (Pa. Super. 2013) (citations
omitted).
-4- J-S31003-17
In “ineffectiveness claims in particular, if the record reflects that the
underlying issue is of no arguable merit or no prejudice resulted, no
evidentiary hearing is required.” Commonwealth v. Bauhammers, 92
A.3d 708, 726-727 (Pa. 2014) (citation omitted). “Arguable merit exists
when the factual statements are accurate and could establish cause for
relief. Whether the facts rise to the level of arguable merit is a legal
determination.” Commonwealth v. Barnett, 121 A.3d 534, 540 (Pa.
Super. 2015) (citation omitted). “Prejudice is established if there is a
reasonable probability that, but for counsel’s errors, the result of the
proceeding would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Stewart, 84
A.3d at 707 (Pa. Super. 2013) (citations and internal quotation marks
Instantly, Appellant rejected the Commonwealth’s offer of a 5½ to 30-
year sentence in exchange for a plea of guilty but mentally ill to third-degree
murder. The trial court conducted a thorough plea colloquy on the record,
questioning Appellant about whether she understood the charges she faced
and the risk of going to trial. The court informed Appellant she faced a
sentence of life in prison without the possibility of parole if she was
convicted of murder in the first degree. The court also asked Appellant if she
had been pressured into making her decision. Appellant indicated she
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understood the charges and risks, and that she had not been coerced into
making the choice.
Appellant contends that trial counsel gave her advice to reject the plea
because counsel planned to argue an insanity or diminished capacity
defense. Appellant’s PCRA petition avers that even after the trial court
granted the Commonwealth’s motion to preclude mental health evidence,
counsel did not apprise her of the change to the defense strategy or its
considerably reduced likelihood of success.
The PCRA court held that Appellant’s issue lacked arguable merit
because Appellant stated during the plea colloquy that she had not been
pressured to reject the plea. However, “pressure” is an improper
measurement of whether an appellant received effective assistance of
counsel. Based on her own assertions, Appellant was not pressured into
rejecting the deal. Rather, she believed she was doing so rationally, based
on the purported ability of her attorney to present a mental health defense.
Thus, the existence of the plea colloquy does not refute Appellant’s
ineffective assistance argument.
In its opinion, the PCRA court also states that counsel cannot be
deemed ineffective for failing to present a cognizable defense. See PCRA
Court Opinion, filed 5/17/16, at 21. However, trial counsel’s failure to
present a cognizable defense goes toward evaluating the reasonableness of
counsel’s advice not to take the plea. Appellant claims she believed trial
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counsel had a legally sound defense when she rejected the plea. The court’s
evidentiary ruling prior to trial eviscerated counsel’s ability to present this
defense. Without the ability to present any exculpatory mental health
testimony, and no other line of defense evident from the transcripts, counsel
would have no reasonable basis for rejecting the plea.
Finally, with respect to prejudice, had counsel advised Appellant to
take the plea, and Appellant accepted the advice, she would have received a
sentence of 5½ to 30 years’ incarceration—instead of the life without the
possibility of parole sentence she is presently serving.
The PCRA court did not base its decision on a credibility finding, and so
we are free to reject its legal conclusions. See Hardcastle, 701 A.2d at
542-543. Appellant has demonstrated a genuine issue of material fact based
on the pleadings. The PCRA court abused its discretion in failing to hold an
evidentiary hearing.
Moreover, the certified record contains a witness certification from
Appellant’s PCRA counsel, stating that he spoke to Appellant’s trial counsel.
The certification avers Appellant’s trial counsel admitted during two separate
discussions that he was ineffective, and that he would testify to his
ineffectiveness before the PCRA court. See Amended Witness Certification of
Robert Brady, filed 10/23/14, at 2. Though Appellant’s averments alone are
sufficient in this instance to remand for an evidentiary hearing, as they raise
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a genuine issue of material fact, this admission bears mentioning when
evaluating the arguable merit of Appellant’s ineffective assistance claim.
As we find Appellant has demonstrated a genuine issue of material
fact, we vacate the PCRA court’s order and remand for an evidentiary
Order vacated. Case remanded for proceedings consistent with this
memorandum. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 6/8/2017
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