Com. v. Rogers, L.

Opinion

J-A13044-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA :

v. :

: :

LANCE ROGERS :

:

Appellant : No. 1210 WDA 2023

Appeal from the PCRA Order Entered September 6, 2023 In the Court of Common Pleas of Washington County Criminal Division at No(s): CP-63-CR-0002599-2018

BEFORE: OLSON, J., SULLIVAN, J., and BENDER, P.J.E.

MEMORANDUM BY BENDER, P.J.E.: FILED: June 11, 2024

Appellant, Lance Rogers, appeals from the post-conviction court’s

September 6, 2023 order denying his timely-filed petition under the Post

Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. Appellant argues that

the court erred by dismissing his petition, where his plea counsel acted

ineffectively by failing to adequately advise him regarding two, negotiated plea

offers made by the Commonwealth, resulting in Appellant’s rejecting those

offers to his detriment. Additionally, Appellant’s counsel, Corrie Woods, Esq.,

has filed a Turner/Finley1 ‘no-merit’ brief and a petition to withdraw from

representing Appellant. After careful review, we grant counsel’s petition to

withdraw and affirm the order denying Appellant’s PCRA petition.

____________________________________________

1 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).

J-A13044-24

The PCRA court summarized the pertinent facts and procedural history

of Appellant’s case, which we adopt herein. See PCRA Court Opinion (PCO),

9/6/23, at 1-5. We need only briefly note that, in October of 2018, Appellant

was arrested and charged with numerous drug and firearm offenses.

Ultimately, Appellant filed and litigated an unsuccessful, pretrial motion to

suppress. He was then offered two, separate plea deals – first, for “a

negotiated term of 10[½] to 22 years[’] imprisonment,” and, second, for “a

negotiated term of 13 to [2]6 years[’] imprisonment.” No-Merit Brief at 6.

Appellant rejected both offers and proceeded to a jury trial in October of 2019.

At the close thereof, he was convicted of ten counts of possession of a firearm

by a person prohibited (18 Pa.C.S. § 6105(a)(1)), and single counts of

possession with intent to deliver a controlled substance (35 P.S. § 780-

113(a)(30)), possession of a controlled substance (35 P.S. § 780-113(a)(16)),

and possession of drug paraphernalia (35 P.S. § 780-113(a)(32)). On January

31, 2020, the court sentenced Appellant to an aggregate term of 20 to 40

years’ incarceration. This Court affirmed his judgment of sentence on direct

appeal, and he did not file a petition for permission to appeal with our Supreme

Court. See Commonwealth v. Rogers, 260 A.3d 175 (Pa. Super. 2021)

(unpublished memorandum).

Instead, Appellant timely filed a PCRA petition. Attorney Woods was

appointed to represent Appellant, and filed an amended petition on Appellant’s

behalf. Therein, Appellant alleged that his trial counsel “provided ineffective

counsel due to his failure to[] adequately communicate to [Appellant] the

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strength of the Commonwealth’s case, the risks and potential outcomes of

trial, and … the risks and potential outcomes that trial would give rise to at

sentencing.” PCO at 8 (citation to the record and internal quotation marks

omitted). Appellant “further aver[red] that had [trial counsel] adequately

apprised [him] of the aforementioned information, [Appellant] would have

foregone proceeding to trial and[,] instead, would have opted to accept the

Commonwealth’s plea offer.” Id. (citation to the record omitted). The PCRA

court conducted an evidentiary hearing on June 22, 2023. Thereafter, the

court issued an order and opinion on September 6, 2023, denying Appellant’s

petition.

Appellant filed a timely notice of appeal. In response to the PCRA court’s

order for Appellant to file a Pa.R.A.P. 1925(b) concise statement of errors

complained of on appeal, Attorney Woods filed a Rule 1925(c)(4) statement

of his intent to file a petition to withdraw. On October 19, 2023, the PCRA

court issued a statement indicating that it was relying on its September 6,

2023 opinion to support its decision to deny Appellant’s petition.

On December 4, 2023, Attorney Woods filed an application to withdraw

as counsel and a no-merit letter. However, counsel’s no-merit letter did not

satisfy the briefing requirements of this Court. Accordingly, on December 15,

2023, this Court issued an order denying the application to withdraw without

prejudice for Attorney Woods to file a Turner/Finley brief that complied with

the necessary procedural requirements or an advocate’s brief on or before

January 16, 2024. On January 16, 2024, counsel filed a Turner/Finley brief

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and a new application to withdraw. Appellant filed a pro se response on May

13, 2024, which we will address infra.

We must begin by determining if Attorney Woods has satisfied the

requirements for withdrawal.

Counsel petitioning to withdraw from PCRA representation must proceed … under [Turner, supra, and Finley, supra, and] … must review the case zealously. Turner/Finley counsel must then submit a “no-merit” letter to the trial court, or brief on appeal to this Court, detailing the nature and extent of counsel’s diligent review of the case, listing the issues which petitioner wants to have reviewed, explaining why and how those issues lack merit, and requesting permission to withdraw.

Counsel must also send to the petitioner: (1) a copy of the “no merit” letter/brief; (2) a copy of counsel’s petition to withdraw; and (3) a statement advising petitioner of the right to proceed pro se or by new counsel.

***

[W]here counsel submits a petition and no-merit letter that ... satisfy the technical demands of Turner/Finley, the court—trial court or this Court—must then conduct its own review of the merits of the case. If the court agrees with counsel that the claims are without merit, the court will permit counsel to withdraw and deny relief.

Commonwealth v. Doty, 48 A.3d 451, 454 (Pa. Super. 2012) (citation

omitted).

Here, Attorney Woods has filed a petition to withdraw and a no-merit

brief. Therein, counsel sets forth the ineffectiveness claim that Appellant

wishes to raise on appeal, and he indicates the nature and extent of his review

of that claim. Attorney Woods also explains why Appellant’s issue is meritless.

Attached to his petition to withdraw, Attorney Woods included a letter

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J-A13044-24

addressed to Appellant informing him that counsel is withdrawing, stating that

counsel has enclosed his no-merit brief, and advising Appellant that he has

the right to retain private counsel or proceed pro se. Accordingly, Attorney

Woods has satisfied the first four requirements for withdrawal under

Turner/Finley. Next, we will conduct our own independent assessment of

the record to determine if the issue presented in Appellant’s petition is

meritless.

This Court’s standard of review regarding an order denying a petition

under the PCRA is whether the determination of the PCRA court is supported

by the evidence of record and is free of legal error. Commonwealth v.

Ragan, 923 A.2d 1169, 1170 (Pa. 2007). Where, as here, a petitioner claims

that he or she received ineffective assistance of counsel, our Supreme Court

has directed that the following standards apply:

[A] PCRA petitioner will be granted relief only when he proves, by a preponderance of the evidence, that his conviction or sentence resulted from the “[i]neffective assistance of counsel which, in the circumstances of the particular case, so undermined the truth- determining process that no reliable adjudication of guilt or innocence could have taken place.” 42 Pa.C.S. § 9543(a)(2)(ii). “Counsel is presumed effective, and to rebut that presumption, the PCRA petitioner must demonstrate that counsel’s performance was deficient and that such deficiency prejudiced him.” [Commonwealth v.] Colavita, … 993 A.2d [874,] 886 [(Pa. 2010)] (citing Strickland [v. Washington, 466 U.S. 668 ... (1984)]). In Pennsylvania, we have refined the Strickland performance and prejudice test into a three-part inquiry. See [Commonwealth v.] Pierce, [527 A.2d 973 (Pa. 1987)]. Thus, to prove counsel ineffective, the petitioner must show that: (1) his underlying claim is of arguable merit; (2) counsel had no reasonable basis for his action or inaction; and (3) the petitioner suffered actual prejudice as a result. Commonwealth v. Ali, …

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10 A.3d 282, 291 (Pa. 2010). “If a petitioner fails to prove any of these prongs, his claim fails.” Commonwealth v. Simpson, … 66 A.3d 253, 260 ([Pa.] 2013) (citation omitted). Generally, counsel’s assistance is deemed constitutionally effective if he chose a particular course of conduct that had some reasonable basis designed to effectuate his client’s interests. See Ali, supra. Where matters of strategy and tactics are concerned, “a finding that a chosen strategy lacked a reasonable basis is not warranted unless it can be concluded that an alternative not chosen offered a potential for success substantially greater than the course actually pursued.” Colavita, … 993 A.2d at 887 (quotation and quotation marks omitted). To demonstrate prejudice, the petitioner must show that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceedings would have been different.” Commonwealth v. King, … 57 A.3d 607, 613 ([Pa.] 2012) (quotation, quotation marks, and citation omitted). “‘[A] reasonable probability is a probability that is sufficient to undermine confidence in the outcome of the proceeding.’” Ali, … 10 A.3d at 291 (quoting Commonwealth v. Collins, … 957 A.2d 237, 244 ([Pa.] 2008) (citing Strickland, 466 U.S. at 694….)).

Commonwealth v. Spotz, 84 A.3d 294, 311-12 (Pa. 2014).

Presently, Appellant contends that his trial counsel was ineffective for

not adequately advising him regarding two plea offers by the Commonwealth.

Specifically, Appellant claims that counsel

failed to adequately communicate the strength of the Commonwealth’s case, and to explain that proceeding to trial would lead to … significantly greater sentencing exposure, including in the form of numerous consecutive sentences. Appellant further maintained that, had [counsel] properly advised him in that regard, he would have accepted the Commonwealth’s offers.

No-Merit Brief at 6. In his pro se response to counsel’s Turner/Finley no-

merit brief, Appellant adds that this Court “should credit Appellant’s [PCRA

hearing] testimony that [plea counsel] failed to advise and actually misadvised

him[,] giving rise to an involuntary plea[,] and grant a new trial.” Pro Se

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Response, 5/13/24, at 3. He further contends that the PCRA court should not

have believed his plea counsel’s testimony at the PCRA hearing. See id.

Initially, it is well-settled that “[t]he PCRA court’s credibility

determinations, when supported by the record, are binding on this Court….”

Commonwealth v. Mason, 130 A.3d 601, 617 (Pa. 2015) (citation and

quotation marks omitted). Here, the record supports the PCRA court’s

determination that Appellant’s plea counsel credibly testified at the PCRA

hearing that he rendered effective representation to Appellant during the

discovery and plea negotiation process. See PCO at 10-23 (discussing the

testimony offered by Appellant and plea counsel at the evidentiary hearing,

and concluding, throughout that discussion, that plea counsel’s testimony was

credible). In assessing Appellant’s arguments to the contrary, we have

reviewed Attorney Woods’ no-merit brief, Appellant’s pro se response, the

Commonwealth’s brief, the certified record, and the applicable law. We have

also assessed the detailed decision of the Honorable Valarie Costanzo of the

Court of Common Pleas of Washington County that was filed on September 6,

2023. We conclude that Judge Costanzo’s well-reasoned opinion thoroughly

and correctly explains why Appellant’s ineffectiveness claim lacks merit.

Accordingly, we adopt Judge Costanzo’s opinion as our own in affirming the

order denying Appellant’s PCRA petition. Given that Appellant has no arguably

meritorious issue to raise herein, we grant Attorney Woods’ petition to

withdraw.

Order affirmed. Petition to withdraw granted.

8

J-A13044-24

DATE: 06/11/2024

02:18 PM

Circulated 04/23/2024 02-18 '

IN THE COURT OF COMMON PLEAS OF WASHINGTON COUNTY, PENNSYLVANIA CRIMINAL CRIMINAL DIVISION

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AND NOW, this 6th day of September, 2023, after thorough review and due consideration

of Petitioner's pro se Motion for Post Conviction Collateral Relief filed on February 7, 2022, the

Amended Petition for Relief Pursuant to the Post Conviction Relief Act filed by Petitioner on

January 4, 2023, the Commonwealth's Answer to Defendant's Post- Conviction Relief Act Petition Post-Conviction

filed by the Commonwealth on March 8, 2023, along with the testimony presented at evidentiary

hearing held on June 22, 2023, and after review of the respective briefs submitted by both parties,

as well as the official record and applicable case law, it is hereby ORDERED, ORDERED, ADJUDGED, and

DECREED that Petitioner's Amended Petition for Relief Pursuant to the Post Conviction Relief

Act is DENIED. Aet

PROCEDURAL HISTORY

On October 26, 2018, Detective Ryan McWreath of the Washington County Drug Task

Force filed aacriminal complaint against Lance Rogers Rogers ("Petitioner"),

("Petitioner"), through which Petitioner

was charged with one count of Possession with Intent to Deliver aaControlled Substance, 35 F.S.

P.S,

$§780-113(a)30), 780-113(a)(30), an ungraded Felony; one count of Possession of aaControlled Substance, 35

§ 780-113(a)(16), an ungraded Misdemeanor; one count of Possession of Drug P.S. $780-113(a)(16),

Paraphernalia, 35 P.S. §$ 780-113(a)632), 780-113(a)(32), an ungraded Misdemeanor; and eleven counts of

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Possessionof Possession of a Firearm. Prohibited, 18 a Firearm 13 Pa. C.S. $§ 6105(a)(1), Pa.C.S. 6105(a)X1), a a Felony of the Second Degree.

That same day, Petitioner was was arraigned by Magisterial District Judge Judge Robert Redlinger and his

bail was set at at $35,000,

$35,000, which Petitioner promptly posted. Following Following aapreliminary

preliminary hearing held

on November 2, 2018, the aforementioned charges were held for court.

On November 27, 2018, Assistant District Attorney Rachel Wheeler Wheeler ("Ms.

("Ms. Wheeler"), on

behalf Commonwealth, filed behalf of the Commonwealth, filed aamotion to revoke motion to revoke or

or modify

modify Petitioner's hail, which was Petitioner's bail, was

subsequently granted by by this Court. Accordingly, Petitioner's bail ball was revoked, and he was

remanded to the Washington County Correctional Facility.

Facility

Thereafter, on December 19, I9, 2018, the Commonwealth filed aaBill of Information against

Petitioner, through which the Commonwealth charged Petitioner with'

with eleven counts of

Possession of aaFiream Firearm Prohibited, 18 Pa.C.S. §$ 6105(a)(1), aaFelony of the Second Degree; one

count of count of Possession with Intent Possession with Intent to to Deliver

Deliver aaControlled

Controlled Substance,

Substance, 35

35 P.S.

P.S. §$ 780-113(a)(30), an 780.113(a)(30), an

Felony, one count of Possession of aaControlled Substance, 35 P.8.

ungraded Felony; P.S. $§ 780-113(a)(16), 780-113(a)(16),

an ungraded Misdemeanor;

Misdemeanor; and one

one count

count of

of Possession

Possession of

of Drug

Drug Paraphernalia, 35 P.S. §$ 780-

Paraphernalia, 35P.S. 780-

113 (a)(32), an ungraded Misdemeanor. 13(a)32),

Approximately two months later, on February 4, 4, 2019,

2019, the Commonwealth filed aamotion

to amend the Bill of Information, which was granted by this Court on February 7, 2019. Pursuant

to the amended Bill of Information filed on February February 11, 2019, Petitioner was charged 1,2019, charged with the

following: Counts 1-11, Possession of aaFirearm Prohibited, 18 Pa.C.S. §$ 6105(a)(1), 6105(a)(), aaFelony

Felony of

the Second Degree; Counts 12-22, Possession of a Firearm Prohibited, 18 Pa.C.S. §$ 66105(a)(1), 105(a)(1), a

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Felony Felony of the First Degree;'

Degree; ICount 23, Possession with Intent to Deliver a a Controlled Substance,

namely aamixture of heroin, fentanyl, fentany], FUB-144, and tramadol, tramado], 35 P.S. §$ 780.113(a)030), 780-113(a)(30), an

ungraded Felony; Count 24, Possession of a a Controlled Substance, namely aamixture of heroin,

fentanyl, FUB-144, and tramadol, 35 P.S. $§ 780-113(a)(16), 780-113(a)16), an ungraded Misdemeanor; and

Count 25, Possession of Drug Paraphernalia, namely stamp bags, bags, 35 P.S. §$ 780-113(a)(32), 780-113(a)632), an

ungraded Misdemeanor.

On February 25, 2019, Blackwell and Associates, specifically Christopher Blackwell,

Esquire, ("Mr. Blackwell"), entered his appearance on behalf of Petitioner. Esquire,

Thereafter, on April 24, 2019, Peter Marcoline III, Esquire, Esquire, ("Mr.

("Mr. Marcoline"), on behalf

of Blackwell and Associates, filed an Omnibus Pretrial Motion which contained, inter alia, a

a

Motion to Suppress, Petition.for Petition for Writ of Habeas Corpus, and aa.Petition Petition to Compel Disclosure of

Confidential Informants. Following aahearing held thereon on July 12, 2019, the Court denied

Petitioner's Omnibus Pretrial Motion in its entirety and scheduled Petitioner to appear for plea plea

court on August 3, 13, 2019. At that time, Petitioner requested aajury trial duringduring the October 2019

term.

trial term

Petitioner's jury trial commenced on October 29, 2019, and lasted aatotal of four days. At

the conclusion of the trial on November 1, 2019, Petitioner was found guilty guilty of possessing

possessing the

Diamondback 5.56, the Smith and Wesson Model M&P long long rifle, the Glock 35, 45, 35, the Witness 45,

the Ruger P95 9.mm, the Hi-Point, the Colt Frontier, the Smith and Wesson Interarms, the

Taurus Curve, and the Smith and Wesson Body Bodyguard,

guard, which corresponded to Counts I-8 1-8 and

Atotal of eleven firearms were seized in this matter, namely, a 'A I 5.56, Smith and Wesson Model a Diamondback $.$6,

M&P .22.long M&P 22 long rifle, Glock 35, Witness 45, Ruger P95 9.mm, 9.mm,•Hi-Point,

Hi-Point, Colt Frontier, Smith ad and Wesson Interrms,

Interarms,

Sauer, Taurus Sig Suer, Trus Curve, and aaSmith and Wesson Bodyguard. Counts 1-1 1-11 of the amended Bill of Information graded the possession of said firearms as a a Felony of the Second

Second Degree, whereas Counts 12-22 graded the possession of the same firearms fireans as a

a Felony of the First Degree.

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Counts 10-11, respectively. Additionally, because the jury also found that at the time Petitioner

committed the offenses, he was in the physical possession or control of the aforementioned

firearms, Petitioner was ultimately convicted of Counts 12-19 and Counts 21-22, making the

offenses Felonies of the First Degree. The jury also found Petitioner guilty of Possession.with Possession. with

Intent to Deliver a a Controlled Substance, Possession of aaControlled Substance, and Possession

of Drug Drug Paraphernalia,

Paraphernalia, which were Counts 23-25, respectively.

respectively. Petitioner was found not guilty of

possessing the Sig Sauer firearm, which corresponded to Count 99and Count 20.

On January 31, 2020, the Court sentenced Petitioner to of, no less than to an aggregate term of

twenty years to no more than forty years in an appropriate Appropriate state correctional institution.

Thereafter, on February 13, 2020, Mr. Marcoline, on behalf of Blackwell and Associates,

withdrew as Petitioner's counsel counsel.

Following the withdrawal of Mr. Marcoline as counsel for Petitioner, Adam Yarssi, Yarussi,

Esquire, of the Washington County Public Defender's Office, filed aaNotice of Appeal Appeal on

February 24, 2020, and entered his appearance on Petitioner's behalf on February 26, 2020, 2020. This

Court then directed Petitioner to file aaConcise Statement of Matters Complained of on Appeal in

accordance with Pa.R.A.P, Pa.R,A,P. 1925(b). Following an extension granted by this Court, Petitioner

filed his Concise Statement on April 7, 2020, as well as an Amended Concise Statement on April

Pa.R.A.P. 1925(a), this Court filed its opinion regarding 8, 2020. Thereafter, pursuant to Pa.R.A.P, regarding

Petitioner's appeal.

appeal.

In a

a memorandum filed on July 30, 2021, the Superior Court of Pennsylvania affirmed

judgement* of sentence and accordingly, denied his appeal.

Petitioner's judgement appeal. Petitioner did not seek

allocatur review at the Supreme Court of Pennsylvania.

On February February 7, 2022, Petitioner filed aapro se Motion for Post Conviction Collateral

Act ("PCRA") petition, this Relief. Following the filing of Petitioner's Post Conviction Relief Aet

Court appointed ("Mr. Woods") to represent Petitioner throughout his appointed Corrie Woods, Esquire, ("Mr.

PCRA. proceedings and direct Mr. Woods to file an amended PCRA petition or aaTurner/Finley PCRA

no-merit letter by by April

April 4, 2022. Following aanumber of extensions, Mr. Woods filed an amended

PCRA petition on January 4, 2023. Thereafter, this Court directed the Commonwealth to file an

answer to Petitioner's amended PCRA petition by March 13, 2023, which the Commonwealth 13,2023,

timely filed. timely fled.

Based upon the pleadings pleadings submitted by both parties, the Court scheduled an evidentiary

hearing on Petitioner's amended PCRA petition for June 22, 2023, 2023. Following said hearing, the

to file briefs within thirty days following the filing of the official Court directed both parties to

transcript of the hearing, hearing. The official transcript of the evidentiary hearing was filed on July 19,

2023. Thereafter, both parties timely submitted their respective respective briefs.

LEGAL LEGAL ANALYSIS ANALYSIS

As As a a preliminary

preliminary matter, in order for this Court to have jurisdiction jurisdiction to entertain

Petitioner's PCRA petition, the petition must comport with the timing requirements of the

PCRA. The PCRA provides, in pertinent part, that, "[a]jny "[a]ny petition

petition (filed

[filed pursuant

pursuant to the

PCRA] ... shall be filed within one year PCRA]...shall year of the date the judgement judgement [of sentence] becomes final."

[of sentence]

42 Pa.C.S. §$ 9545(b)1). 42Pa.C.S. 9545(b)(1). A Ajudgement

judgement of sentence becomes final, final, "at the conclusion of direct

review ... or at the expiration of time for seeking review...or seeping the review." 42 Pa.C.S. §$ 9545(b)3)

review."42 9545(b)(3).

In the present matter, following his conviction and the entry of this Court's judgment of

sentence, Petitioner pursued pursued aatimely direct appeal appeal to

to the Superior

Superior Court of Pennsylvania Pennsylvania on

February 24, 2020. Thereafter, in a a memorandum filed on July 30, 2021, the Superior Court of

Pennsylvania Pennsylvania denied Petitioner's appeal, appeal, affirming

affirming his judgment of sentence. Following his

unfruitful direct appeal appeal to the Superior

Superior Court of Pennsylvania, Petitioner chose to to forgo seeking

allocatur review at the Supreme Supreme Court of Pennsylvania. Accordingly, Petitioner's judgment of

sentence became final on August August 30, 2021,,

2021, when the thirty-day period period for filing aapetition for

appeal with the Supreme Court of Pennsylvania expired. See 42 Pa.C.S. §$ allowance of appeal

9545(b)(3); Pa.R.A.P. 9545(b)03); 1113. 2 Pa.RA.P. 1113 As such, Petitioner had one year from that date, or until August 30, As

2022, to file aatimely PCRA petition. Having filed his pro se PCRA petition on February 7, 2022,

Petitioner's PCRA. petition is PCRA petition is evidently timely; therefore, this Court has jurisdiction to entertain

the claims raised by the by Petitioner Petitioner therein.

therein.

In addition to satisfying the jurisdictional requirements of the PCRA, for aapetitioner to

be eligible for relief under the Act, he must also satisfy the requirements of eligibility set forth in

Section 9543(a) of the PCRA. Said eligibility provisions require that aapetitioner plead and

prove, prove, by a a preponderance of the evidence, that he has been convicted of aacrime for which he is

currently serving aasentence for, and that the conviction came as a a result of one of the

enumerated grounds for relief. 42 Pa.C.S. §$ 9543(a)(1)(i);

9543(a)(1)(); 42 Pa.C.S.

Pa.C.$. §$ 9543(a)2).

9543(a)(2). Here, as the

Court has previously outlined, Petitioner was was convicted of numerous offenses, namely

Possession of of aaFirearm

Fiream Prohibited,

Prohibited, Possession

Possession with Intent to to Deliver

Deliver aaControlled Substance, Substance,

Possession of aaControlled Substance, and Possession of Drug Paraphernalia, Paraphernalia, for which he is

currently currently serving serving an aggregate sentence sentence of twenty years. to forty twenty years forty years years incarceration. Therefore,

Petitioner satisfies the eligibility requirements insofar as as they are outlined in

they are in Section

9543(a)(1)(i). 9543(a)X10).

Pa.R.A.f. 1113 pu.RA.P, 2 states, in pertinent pant, 11I3states, part, "a "apetition for allowance of appeal shall be filed with the Prothonotary of the Supreme Court within 3e days after the entry of the order of the Superior 30 days Superlar Court or the Commonwealth Court sought to be reviewed."

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As briefly mentioned above, in addition to establishing that he was convicted of a a crime

for which he is currently serving aasentence for, aapetitioner petitioner is further required plead and prove required to plead prove

that said conviction came as a a result of one of the errors provided in Section 9543(a)(2)(i)-(viii).

9543(a)Q2))-(viii).

Relevant to the instant.matter, instant matter, Section 9543(a)(2)(ii)

9543(a)2)(ii) allows aapetitioner pursue relief where he petitioner to pursue

has has received counsel .3 It received ineffective assistance of counsel' It is precisely precisely upon

upon this

this subsection that

that Petitioner

Petitioner

avers that he is entitled to relief under the PCRAN PCRA,

However, aapetitioner is unable to raise issues in his PCRA petition that have already already

been previously litigated or waived. 42 Pa. C.S. $§ 9543(a)(3).

Pa.C.S. 9543(a)3). An issue is waived in the context of

the PCRA PCRA "if

"if the petitioner could have raised it but failed to do so before trial, at trial, trial, during

unitary review, on appeal, or in aaprior state postconviction proceeding."42 proceeding," 42 Pa.C.S. §$

9543(a)(4). While 9543(a)(4). While Petitioner Petitioner did

did not raise the

not raise the issue of ineffective issue of ineffective assistance of counsel assistance of counsel during during the

the

pursuit of his direct appeal, Petitioner's failure to do so does not amount to a a waiver for purposes

purposes

of of the the PCRA.

PCRA. In

In the

the absence

absence of

of specific

specific circumstances,

circumstances, none

none of

of which

which are

are present

present here, claims of

here, claims of

ineffective assistance of counsel are deferred solely to PCRA review, review, and are not to be

entertained in in any

any post-verdict motions upon direct motions or reviewed upon appeal, Commonwealth V, direct appeal. v

Holmes, 79 A.3d A,3d 562, 576

576 (Pa. 2013).'

2013). 4Accordingly,

Accordingly, Petitioner's failure to raise the instant instant claim

of ineffective ineffective assistance of of counsel

counsel on direct appeal, or at at an

an earlier juncture

juncture in proceedings, in the proceedings,

does not prove fatal to to his instant PCRA petition, as the PCRA is the proper proper and sole vehicle

through which through which an individual may an individual may raise such an raise such an issue

issue.

Section 9543(a)2(ll) Seetlon 3 9543(a)(2)(ii) 0f of the PCRA states, in PCRA states, in pertinent pertinent part,

part, that to

to be

be eligible

ellglble for relief, petitioner must show, relief, the petitioner show, by a preponderance of the evidence, that his conviction resulted from, "j.ilneffective assistance by a preponderance of the evidence, that his conviction resulted from, "[l]effective assistance of of counsel counsel which,

which, In

in

the circumstances of the particular case, so undermined the truth-deterin ining process truth-determining process that no reliable adjudication adjudication of

guilty or innocence Innocence could have taken place."

place,"

In Commonwealth v. 'In 4 ffolines, the Supreme Court of Pennsylvania provided examples • Holmes, examples of specific specific circumstances

that would allow for counts courts to consider ineffective Ineffective assistance of counsel claims in post-verdict post-verdict motions or on direct appeal. These circumstances generally have been limited to instances in In which aadefendant attempted attempted to litigate

litigate

multiple claims of ineffective assistance of counsel and where the defendant has knowingly knowingly and expressly expressly waived

walved

his right to PCRA review, Such aawaiver ls is not present in the instant matter.

matter,

Having established that Petitioner has satisfied both the jurisdictional and eligibility

PCRA and has not waived the present claim he is now raising through requirements of the PA through his

PCRA petition, the Court next turns its attention towards assessing the merits of Petitioner's

claim itself.

In his Amended PCRA petition, petition, Petitioner raises aasingular, singular, overarching claim of

ineffective assistance of counsel premised around Mr.

Mr. Marcoline's alleged failure to provide provide

adequate advice regarding the plea offers tendered by the Commonwealth. See Amended Petition

for Relief Pursuant to the Post Conviction Relief Act, Aet. Specifically, Petitioner alleges that Mr.

Marcoline provided ineffective counsel due to his failure to, "'adequately "adequately communicate to

[Petitioner] the strength of the Commonwealth's case, the risks and potential potential outcomes at trial,

and— the risks and potential outcomes that trial would give rise to at sentencing." and...the sentencing." Id Id. Petitioner

further avers that had Mr. Marcoline adequately apprised Petitioner of the aforementioned

information, Petitioner would have foregone proceeding to trial and instead, would have opted opted to

accept the Commonwealth's plea offer. Id.

Id

As a a general

general rule, itit is

is presumed that

that aapetitioner

petitioner has received effective counsel.

Commonwealth , v. Wholaver, 177 A.3d 136, 144 144 (Pa. 2018)

2018) (internal

(internal citations omitted), See also

Commonwealth v.• Cooper, 941 A.2d A.2d 655, 664

664 (Pa.

(Pa. 2007)

2007) (internal omitted). Thus, (internal citations omitted). Thus, a

a

court's assessment of aapetitioner's claim of ineffective assistance of counsel must be be "highly

"highly

deferential[.]" Commonwealth v.• Charin, Chazin, 873 A.2d (Pa. Super.

A.24 732, 735 (Pa. 2005) -(internal Super. 2005) (internal citations

omitted). In order for a a petitioner to rebut this presumption, a a petitioner seeking

seeking relief on the

grounds that that he received ineffective assistance of counsel must satisfy satisfy the three-prong

three-prong test set

forth by by the Supreme Court of Pennsylvania in Commonwealth v. Pierce, 527 A.2d 973 973 (Pa.

(Pa.

1987). Wholaver, 177 Aid A3d at

at 144, Under the Pierce test, aapetitioner petitioner must establish that:

99

(1) (I) the underlying substantive claim has arguable merit; (2) counsel did not have a Q2) a reasonable basis for his or her act or omission; and (3) the petitioner suffered prejudice as a a result of counsel's deficient performance.

performance.

Id, Id If the petitioner petitioner.faiIs

fails to satisfy any one of the prongs of the Pierce test, the entire claim

will fail. Connnonivealth Commonwealth ».v, Smith, 181 A.3d 1168, 1174-75 1174-75 (Pa. 2018) (internal (Pa. Super. 2018) (internal

citations omitted)

omitted).

When assessing aa Petitioner's claim of ineffective assistance of counsel, counsel, the

the Court

threshold inquiry that the Court must explore is, "whether "whether- the issue/argument/tactic issue/argument/tactic which

counsel has foregone and which forms the basis for the assertion of ineffectiveness is of

arguable merit[,j"

merit[,]" for counsel cannot be considered ineffective for failing failing to assert aa

meritless claim. Commonwealth v.

• Davis, 262 A.3d 589, 596 596 (Pa. Super. 2021)

(Pa. Super. 2021) (internal (internal

citations omitted). If the petitioner petitioner satisfies this this initial

initial threshold,

threshold, the

the Court then must

proceed to determine whether the decisions of counsel had some reasonable basis, basis,.Id.

Id. If aa

reasonable reasonable basis basis is found, the

is found, the. inquiry

inquiry ends,

ends, and

and counsel's

counsel's assistance

assistance is

is deemed

deemed effective.

effective

Id. However, However, if the Court if the Court finds

finds that

that no

no reasonable

reasonable basis

basis for

for counsel's decisions existed, counsel's decisions existed, the the

petitioner must must then demonstrate that that he

he was

was prejudiced

prejudiced by

by the

the ineffectiveness

ineffectiveness of counsel.

Commonwealth •v. Edwards, Edivards, 762 A.2d 382,

382, 390

390 (Pa.

(PA. Super.

Super. 2000)

2000) (internal citations (internal

omitted). For aapetitioner to establish prejudice, he must show that there is aareasonable

probability that, but for counsel's ineffectiveness, the result of the proceeding proceeding would have

been different. been different. Commonwealth Commonwealth •v, Chambers, Chambers, 807

807 A.2d

A.2d 872, 883 (Pa.

872, 883 2002) (internal (Pa. 2002) (internal

citations omitted). Pennsylvania courts have defined a "reasonable probability" to be aa

"probability sufficient to undermine confidence in the outcome." Id.

Id

As As previously noted, Petitioner previously noted, Petitioner advances advances numerous grounds in numerous grounds in support support of

of his

his

overarching claim of ineffective assistance of counsel on the pant part of Mr. Marcoline. For

10

purposes of its discussion, the Court shall address each ground in support of Petitioner's

ineffectiveness claim independently.

independently.

I. Fallure to Adequately Communicate the Strength Failure Strength of the Commonwealth's Case

To support his claim of ineffective assistance of counsel, Petitioner first contends that

Mr. Marcoline failed to adequately apprise Petitioner of the strengths of the Commonwealth's

case against him, and thus, failed to toprovide

provide adequate advice to to Petitioner regarding

regarding the benefits

See Amended Petition for Relief Pursuant to the of accepting the Commonwealth's plea offer. See

Post Conviction Relief Act. Such a a contention, however, is without merit.

The record in this matter, including the testimony presented by both Petitioner and Mr.

Mr,

Marcoline at the evidentiary hearing hearing,sfirmly establishes tthat hat Petitioner was well-informed of the

strength of the Commonwealth's case against him, including the Commonwealth's evidence, as

disclosed through discovery, along with any potential defenses and their viability viability at trial. As

As

adduced through through the the testimony at the

the evidentiary hearing, Mr, Marcoline hearing, Mr. Marcoline met met with Petitioner,

Petitioner, in

in

person, to to discuss discuss discovery

discovery on

on multiple occasions. Evidentiary Hrg.

Hrg. Tr., 6/22/23 at 9.13-10:5;

at 9:13-10:5;

68:23-69:20. As Petitioner stated on direct examination, 68.23-69:20. examination, "[w]ell, "[w]ell, it was, like, maybe, was, like, like, three maybe, like,

times he did come and we sat down and we went over the discovery and he was telling telling me about

9:20-23. Later, or.

what all they found[.]" Id. at 9:20.23, on cross-examination, Petitioner reiterated the fact

that Mr. Marcoline apprised him of the discovery in the matter, matter, as evidenced through through the

foregoing exchange:

Ms. Wheeler: Okay. Let's do it this way. You said Mr. Marcoline came and met with you in person at the jail two or three times; right?

Petitioner: Yes.

Ms. Okay. What Ms. Wheeler: Okay, What do you remember about about those

those meetings?

•

Petitioner: Well, one, like I I said, was when we had the meeting downstairs and he was talking to me about the discovery and basically, once again, the guns could guns could hurt me. And then another time is when he came hurt me. came --

-- well, the first

and only time

time `I

I can remember, that I I do remember is when he brought the paper saying the 10 and a a half to 21 years. That's what you could potentially offer me or whatever the case may may be. And then he came back when the discovery came. That's when he was downstairs and he talked about that, and then the third time is when he said that you guys had an offer of 13 to 26 years. Everything else he was saying to me, I I can't remember half of --

of--

IIdon't know law. IIdon't understand it. Ifit If it wasn't saying nothing about me going home to my kids, it was aablank.

Ms. Wheeler: Okay. So let's stant start at

at where you said you remember beginning. So Mr. Marcoline came over and you said he discussed with you you

your discovery; correct?

Petitioner: Correct.

Id. at at-40:19-41:22.

40:19-4122.

In addition toto

Petitioner's testimony concerning his discussion with Mr. Marcoline

regarding discovery and the Commonwealth's evidence, Mr. Marcoline provided provided credible

testimony further establishing that he adequately advised Petitioner of the discovery in the

matter, necessarily then informing Petitioner of the strength strength of the Commonwealth's case, case.

As reflected in Mr. Marcoline's testimony, he and Mr. Blackwell, through multiple multiple letters,

letters,

sent Petitioner the discovery packets that had been provided to them by the

6/2 2/

23at 70:8-19. One such letter was admitted at Commonwealth. Evidentiary Hrg. Tr., 6022/23 at

the evidentiary evidentiary hearing in in this matter,

matter, in

in which Mr.

Mr, Blackwell

Blackwell informed

informed Petitioner of

of the

the

DNA analysis report pertaining to two two of the firearms and their their respective

respective magazines,

magazines,

ultimately informing Petitioner that "[he] cannot be be excluded as a

a potential

potential individual that

could have contributed to this DNAO" and that the results of the DNA analysis DNA[]" ad analysis were

adverse to Petitioner's case. See Commonwealth Exhibit 11.

1]

11

II

On direct examination, Mr. Marcoline elaborated on the extensive discovery that

he had shared with Petitioner:

Ms, Ms. Wheeler: Okay. So could you just briefly explain explain to us the discovery, discovery,

what -all did it include, just just in general?

Mr. Marcoline: One of the major issues in this case was photos and videos of [Petitioner's]

taken off of [Petitioner's] personal cell phone. If I correctly, those I recall correctly,

were played at the bond hearing, but II know they were played at trial. There was also text messages that were ultimately ultimately extracted from his phone, phone, lab

reports, reports, DNA.

DNA. There were also latent latent fingerprint

fingerprint reports

reports from the state

police. police. The videos, text messages, messages, drug

drug lab and controlled substances that were found. Police reports, investigative details from the multiple multiple investigators that were at the home on the date of the search warrant and seizure of the items. So all of that information was included in the discovery discovery

packet[.] packet[.]

Evidentiary Hrg.

Htg. Tr., 6/22/23

6/22/23 at 70:20-7114.

70.20-71:14.

Mr. Marcoline Mr. Marcoline further further credibly testified that credibly testified that he he had discussed the

had discussed the aforementioned aforementioned

discovery "[i]n discovery "[iJn detail" with Petitioner, Petitioner, precisely

precisely recalling

recalling aaspecific meeting meeting in

in which he

discussed the discovery in-person with Petitioner on August 12, [2, 2019. Evidentiary

Evidentiary Hrg, Tr.,

Hrg. Tr.,

6/22/23 at 72:16-21. As As reflected

reflected by Mr. Marboline's notes Mr. Marcoline's notes from from said meeting, Mr. Marcoline said meeting, Marcoline

informed Petitioner of the strength of the Commonwealth's case in relation to the videos

contained in the discovery packets, specifically noting that he told Petitioner that the videos were

the "most damaging" evidence. See Commonwealth Exhibit 6.

In addition to thoroughly discussing the discovery in the matter with Petitioner, the

record record from from the the evidentiary hearing

hearing farther

further establishes that

that Mr.

Mr. Marcoline fully

fully informed

Petitioner of any potential defenses, as well as their likelihood at trial. Petitioner, himself, himself,

indicated as much on direct examination:

Mr. Woods: Did he talk to you about any potential defenses? For example, [the firearms] actually belonged to to someone else. [The

[The firearms]

firearms] weren't

yours and you didn't have control over them?

Petitioner: Petitioner Yes.

Evidentiary Hrg. Tr., 6/22/23 at 10:6-10.

10:6.10. With regards to the likelihood of success of any

defensive strategies, Mr. Marcoline credibly testified that he informed Petitioner of the low

likelihood of success in the event that that Petitioner proceeded trial:

proceeded to trial;

Ms. Wheeler: And that's why you indicated you told him this is the most damaging?

Mr. Marcoline: Yes.

Ms. Wheeler: And you were telling him that because of why?

Mr. Marcoline: Because the prospects prospects of going winning on this going to trial and winning case IIdidn't

didn't think were great.

Ms. Ms. Wheeler:

Wheeler: Did

Did you

you tell him that?

Mr. Marcoline: Yes.

Id, Id at 88:4-12.

through

Along with being apprised of the strengths of the Commonwealth's case through

discussions with Mr. Marcoline, Petitioner, himself, was personally personally made aware of the strength strength

of the Commonwealth's case through his presence at multiple multiple hearings dissemination of hearings and the dissemination

directly to him at

discovery directly at the outset of of the proceedings.

proceedings. Specifically, Specifically, Petitioner was present Petitioner was present for for

and provided testimony and provided testimony at at a bond revocation

a bond revocation hearing hearing held

held in this matter

in this matter on

on November

November 30, 2018.

30, 2018.

Evidentiary Evidentiary Hrg. Tr., 25:21-26:12;

Hrg. Tr, 25:21-26:12; 27:11-16;

27:11 -16; See

See Commonwealth

Commonwealth Exhibit

Exhibit 1. At the

1. At bond

the bond

revocation hearing, revocation hearing, the the Commonwealth admitted numerous Commonwealth admitted numerous exhibits, exhibits, including photographs of including photographs of

various firearms, many of which depicted Petitioner with the firearms. Evidentiary Evidentiary Hrg. Tr.,

Hrg. Tr.,

6/22/23 at 27:17-22; See Commonwealth Exhibit 1. In addition to said exhibits, Detective Ryan 6022/23 Ryan

McWreath Me Wreath provided testimony at the bond revocation hearing hearing regarding

regarding the Commonwealth's

evidence as it related to the controlled substance charges charges against

against Petitioner,

Petitioner, as well as a

a

'

statement made by by Petitioner in which he took ownership of the controlled substances.

Evidentiary Evidentiary Hrg.

Hrg. Tr., at 28:4-11; See Commonwealth Exhibit 1 Tr., 6/22/23 a1 1.

Later down the line, on July 10, 2019, Petitioner was present for aahearing on his

Omnibus Pretrial Motion. Evidentiary Hrg. Tr., 6/22/23 at 30,3-31:8; 31:24-32:3. See 30:3-31:8; 3124-323.

Commonwealth Exhibit 2. Similarly to the bond revocation hearing, Petitioner was again made

fully aware of the Commonwealth's evidence in this matter through his presence at the Omnibus

Pretrial Motion hearing hearing where the Commonwealth admitted exhibits two search warrants, admitted as exhibits

numerous photographs which depicted, inter alia, firearms, firearms, their

their respective

respective cases, ammunition,

Petitioner's Pennsylvania Pennsylvania identification card, and aaphotograph photograph inside of Petitioner's residence,

as well as lab lab report results

results regarding the controlled matter.$ Evidentiary controlled substances seized in the matter.

Hrg. Tr., 6/22/23 a1 at 31.16:23; See Commonwealth Exhibit 2. Along with the presentation and 31:16:23; See

admission of the aforementioned exhibits, Detective McWreath, Mc Wreath, again, provided testimony

regarding, generally, the Commonwealth's case against Petitioner, which included the evidence

that had been seized from Petitioner's residence along with statements made by Petitioner

whereby he took ownership ownership of the firearms and the controlled substances that were discovered.

Evidentiary Hrg.

Hrg, Tr., 6/22/23 at 32:4-17; See Commonwealth Exhibit 2.

.Lastly, Lastly, Petitioner was personally provided with aamajority of the discovery in this matter

prior to to Mr. Marcoline and Mr. Blackwell entering their appearances on his behalf, behalf, as evidenced

by by the letter sent by Ms. Wheeler to Petitioner on February 4, 2019. See Commonwealth Exhibit

3. 3.

Videos that had been obtained from Petitioner's cellphone were also played during 'Videos 5 daring the hearing on hls his Omnibus

Pretrial Pretrlal Motion. Said videos depicted Petitioner holding the firearms at issue. Evidentiary Hrg. Tr., 622/23 6/22/'23 at

at 32:18-

24, 24,

As evidenced by the aforementioned testimony and exhibits, Petitioner was well and fully fully

aware of of the strength strength of the Commonwealth's case case against him. Mr

Mr.. Marcoline's credible

testimony firmly established that he discussed the discovery in this matter on oil numerous

occasions with Petitioner, physically meeting him in-person on at least one occasion to do so, so.

Not only did Mr. Marcoline meet with Petitioner to discuss discovery with him, but he also

conferred to Petitioner the damaging nature of the discovery, along along with any potential

potential defenses

that were available to Petitioner, Petitioner, as well as his candid candid opinion about the

the relative

relative unlikelihood

unlikelihood of

success at at trial in light of the Commonwealth's evidence. In fact, Petitioner testified to aasimilar

effect, specifically stating that he had discussed discovery with Mr. Marcoline and answering answering in

the affirmative when asked if Mr. Marcoline had discussed potential defensive strategies strategies with

him, him. In any event, In any event, Petitioner Petitioner was

was personally apprised of personally apprised of the strength of the strength of the

the Commonwealth's

Commonwealth's

case on at least three occasions, namely, through his presence at the bond revocation hearing, the

Omnibus Pretrial Motion hearing, and the direct delivery of discovery to Petitioner at an early early

juncture in the proceedings. Moreover, Petitioner's contention that he lie was not aware of the

strength of the Commonwealth's case is curious in light of the following following exchange

exchange at the

evidentiary hearing:

Ms. Wheeler: Okay, Was there any -— considering Ms. considering the fact that you you had

attended all of these hearings and you had received discovery discovery personally

personally

from us and also gone over it it with your attorney and heard all of the testimony at these hearings, the Commonwealth's case was was very very clear to

you; correct?

correct? You

You knew

knew what

what we

we were

were alleging.

alleging. You

You just disputed it; right?

just disputed right?

Petitioner: Yes.

Evidentiary Hrg.

Hrg, Tr,, 59:22-60:6.

Tr., 6/22/23 at 5922-60.6.

As such, for the aforementioned reasons, it is evident that Petitioner was fully As

informed of tthe he strength

strength of the Commonwealth's case, both through through his own participation participation

16

,

in the matter, as well as through the thorough and extensive discussions with Mr.

Mr,

Marcoline. Thus, Petitioner's contention that Mr. Marcoline failed to adequately inform

him of the strength of the Commonwealth's case lacks arguable merit and cannot serve as

aabasis for his claim of ineffective assistance of counsel.

II. II. Failure to Failure to Communicate

Communicate the

the Risks

Risks and

and Potential

Potential Outcomes

Outcomes at Trial

at Trial

Petitioner next contends that Mr. Marcoline failed to adequately communicate to him

the risks and the risks potential outcomes and potential outcomes of of proceeding

proceeding to

to trial

trial and

and as

as aaresult,

result, failed

failed to provide

to provide

adequate advice to Petitioner regarding whether to accept the Commonwealth's plea plea offer.

See Amended Petition for Relief Pursuant to the Post Conviction Relief Act. Petitioner's

second alleged ground to to support his claim of ineffective assistance of counsel, however,

is also without merit.

At the evidentiary hearing, Mr. Marcoline provided credible testimony demonstrating

that Petitioner was well-apprised ofthe the risks associated with proceeding to trial, as well as

the adverse outcomes that would be associated with a a guilty

guilty verdict. As the Court

previously discussed, Mr. Marcoline thoroughly and extensively extensively discussed with Petitioner

the Commonwealth's evidence in this case. Evidentiary Hrg.

Hrg, Tr., 6/22/23 at 9:13-10:5;

9:13-10:5;

68:23-69:20; 70:8-72:21; See also Commonwealth Exhibit 6; Commonwealth Exhibit 11. 68.23-69:20;

Through such Through discussions, Petitioner such discussions, evidently would Petitioner evidently would have have become acutely aware become acutely of the aware of the

risks associated with proceeding to trial in the face of such evidence, specifically specifically that it

would would be difficult to mount an effective defense. In In fact,

fact, Mr.

Mr. Marcoline

Marcoline informed

informed Petitioner

Petitioner

of the low likelihood of success at trial and the risk of proceeding, testifying that, proceeding, credibly testifying

following his discussions regarding the discovery with Petitioner, particularly the videos

of Petitioner with the firearms at issue, he expressly informed Petitioner that "the prospects prospects

17

•

of going to trial and winning on this case IZdidn't think were great."

great," Evidentiary Hrg. Tr,,

6/22/23 at 88:4-12. 6/22/23 88:4-12.

Additionally, Mr. Marcoline fully informed Petitioner of the elements of the offenses

that the Commonwealth necessarily would have to prove at trial, as well as the concept of

possession.. Evidentiary Hrg. Tr., constructive possession, Tr,, 6/22/23 88:23-89:9. Mr. Marcoline 6/22/023 at 88.23-89:9.

credibly testified that, through such discussions, Petitioner understood that the firearms did

not have to be registered to him for him to to be convicted of possessing them, and as such,

the risks of challenging the firearms charges at trial. Id, at 89:5-15.

Moreover, the record further further reflects that Petitioner reflects that Petitioner understood understood the ramifications ramifications that

that

proceeding to trial proceeding to trial would have have on his subsequent sentencing if subsequent sentencing if he were were convicted,

convicted, as

as

hearing.

evinced by the credible testimony of Mr. Marcoline at the evidentiary hearing:

Ms. Ms. Wheeler:

Wheeler: And

And did you go

go over what the

the potential

potential risk

risk of going to trial

was as far as sentencing was concemed concerned if he were convicted?

Mr. Marcoline:

Marcoline; Yes, IIdid.

Wheeler: And did you discuss with Ms. Wheeler; with [Petitioner]

[Petitioner] the fact that 13 to 26 years was significantly

significantly less than what he would be facing facing if he were

convicted at trial?

Mr. Marcoline: Yes, I

I did.

Evidentiary Hrg, Hrg. Tr.,

Tr, 6/22/23

6022/23 at 84:21-85:5.

Petiti'oner's understanding of the risks associated with proceeding to trial in the context of Petitioner's

sentencing is further reinforced by aadiscussion that he had with Mr. Marcoline regarding regarding an

email sent to Mr. Marcoline and Mr. Blackwell by Ms. Wheeler on October 7, 2019. Said email

thoroughly thoroughly explained the Commonwealth's plea offer at the time, as well as the potential potential

standard range sentence that Petitioner would be facing if he were to to proceed to trial and be

convicted, See Commonwealth convicted, See Commonwealth Exhibit 5. Mr.

Exhibit 5. Mr. Marcoline

Marcoline credibly

credibly testified that he testified that he visited visited

18

. ., '

at the Washington County Correctional Facility to go over the contents of Petitioner, in-person, at

the email with him, including the sentencing risks associated with proceeding to trial.

Hrg. Tr., 6/22/23

Evidentiary Hrg. 6/22123 at 86.7-23, 86;7-23. Through such a

a discussion, Petitioner would evidently

have been made fully aware of the fact that the Commonwealth's offer was aasteep discount as

compared to the standard range sentence that Petitioner was facing. In addition, Petitioner would

have also been apprised of the fact that, if he chose to proceed to trial, the Common Commonwealth

wealth was

seeking to to prove Felony of the First Degree Possession of a a Firearm Prohibited, as compared to

the plea offer whereby Petitioner would plead to Felonies of the Second Degree, thus further

informing Petitioner of the risks associated with proceeding to to trial. See Commonwealth Exhibit

s.5.

Thus, as the credible testimony of Mr. Marcoline establishes, Petitioner was fully

informed of the risks associated with proceeding to trial, including the adverse consequences that

a a potential conviction would have on his subsequent sentencing. Through discussions with Mr.

Mr

Marcoline, as well as his own personal observations, Petitioner was apprised of the evidence that

the Commonwealth intended to present at trial, trial, along with the damaging nature of such evidence.

Following aareview of the evidence, along with his discussions with Petitioner, Mr. Marcoline

inevitably concluded that Petitioner's prospects at trial were not great and communicated his

thoughts on the the risky nature

nature of proceeding

proceeding to trial to

to Petitioner,

Petitioner, including

including the fact that

that Petitioner

would be facing a a significantly lengthier sentence as compared to the Commonwealth's plea

offer at the time if he were convicted, convicted.

While Petitioner now asserts that he would have accepted the Commonwealth's plea offer

had he been fully informed of the risks and ramifications of going to trial, Petitioner's own

testimony at the evidentiary hearing demonstrates that Petitioner made aafully informed decision

1s

f 11

to proceed

proceed to trial, in light light of the risks associated with such aadecision, due to his as desire to

preserve preserve his right to appeal the denial of his Omnibus Pretrial Motion, along with his goal of

challenging whether he possessed the firearms at issue. Specifically, Specifically, Petitioner, on cross-

examination, recounted why he he ultimately chose to proceed to trial:

Ms, Ms. Wheeler: Oh, did you not say earlier that you wanted to challenge whether you actually possessed the firearms?

firearms'?

Petitioner: To aut

authenticate

henticate some of those firearms, allegedly allegedly £irearms,

firearms, in the

videos.

Ms. Wheeler:

Wheeler. ITthought you said earlier that you absolutely denying absolutely were denying

ownership or possession of any of those firearms and that's what you were challenging at trial?

Petitioner; Correct. Petitioner:

Ms. Wheelers Okay. So that's not my words. Those are yours. And you also Wheeler: Okay,

want to potentially appeal the judge's decision following following trial; right?

Petitioner: Yes.

Evidentiary Hrg. -Tr,, Tr., 6/22/23

6/22!23 at 58.:7-20.

58:7-20.

Mr. Marcoline's credible testimony further established Petitioner's own goals goals for

nevertheless proceeding proceeding to trial, making it abundantly abundantly clear

clear that

that Petitioner,

Petitioner, throughout

throughout the

entirety of the proceedings, was dissatisfied with the the plea offers tendered by by the

Commonwealth. Specifically, Petitioner informed Mr. Marcoline that he refused to plead plead

guilty to any of of the firearms charges, that he would accept decades worth of probation, probation, or

a a county sentence with electronic home monitoring privilege of work release, monitoring with the privilege release, as

Mr, Marcoline's memorialization of an August 12, 2019 meeting with evidenced through Mr.

Petitioner. Evidentiary Hrg.

Hrg. Tr., 6122/23 at 78;10-20;

Tr,, 6/22/23 78:10-20; See also Commonwealth Exhibit 66.

As As such, Mr. Marcolne attempted to negotiate a Mr. Marcoline a more more favorable plea agreement throughout plea agreement throughout

the entirety of the proceedings, even including during jury jury selection, as

as evidenced by

by aanote

44 I •

passed between himself and Ms. Wheeler that day. Evidentiary Hxg. 903-

Hrg. Tr., 6/22/23 at 90.3-

91:16; See also Commonwealth Exhibit 7.

7, Mr. Marcoline's credible testimony also echoed

Petitioner's stated desire to appeal the Court's denial of his Omnibus Pretrial Motion, aa

right that could only be effectuated through proceeding to trial. Evidentiary Hrg. Tr.,

at 76:4.77:8;

6/22/23 at 123:4-125;3.

76:4-778; 123:4-125.3.

Accordingly, for the aforementioned reasons, Petitioner's claim that Mr. Marcoline

failed to to adequately communicate the risks and potential outcomes of trial is without

arguable merit and cannot serve as the basis for his claim of ineffective assistance of

counsel.

III. III Failure to Communicate the Risks and Potential Outcomes at Sentencing Sentencing

Petitioner's third and final asserted ground in support of his ineffective assistance

of counsel claim concerns his contention that Mr. Marcoline failed to fully fully communicate

the risks risks and outcomes associated with sentencing, specifically, how proceeding proceeding to trial

would impact Petitioner's sentencing exposure. See Amended Petitioner for Relief

Pursuant to the Post Conviction Relief Act. Petitioner's third ground for relief, however, is

without merit for for the foregoing

foregoing reasons.

While on direct examination, Mr. Marcoline credibly testified to the discussions

that he had with Petitioner prior to trial regarding the Commonwealth's plea offers in this

matter. The first plea that was offered to to Petitioner amounted to to an aggregate sentence of

ten ten and one-half to twenty-one years incarceration. See Commonwealth Exhibit 88.

Following an increase in the sentencing guidelines as a a result of Petitioner's alleged alleged

delivery of fentanyl, the Commonwealth increased the plea offer, ultimately offering offering

Petitioner an aggregate sentence of thirteen to twenty-six years incarceration. See

Commonwealth Exhibit 9. As evidenced by two letters sent to Petitioner by Mr. Marcoline,

dated January 2, 2019 and January 31, 31, 2019, respectively, both of the Commonwealth's

plea offers were communicated to Petitioner.

Petitioner, See Commonwealth Exhibit 8;

Commonwealth Exhibit 9, 9.

Along with communicating the Commonwealth's plea plea offers to Petitioner, Mr.

Marcoline credibly testified that he discussed the Commonwealth's final plea offer, offer, at

length, with Petitioner, along with the standard range sentence under, the sentencing under the

guidelines, as well as the concept that Petitioner's sentences could be ran consecutive or

on direct

concurrently. Specifically, Mr. Marcoline credibly stated the following on

examination:

Ms. Ms. Wheeler: So just as aasummary, so you received aacouple couple different

offers from the Commonwealth. Did you convey both of those to [Petitioner]?

Mr. Mr. Marcoline: Verbally, in writing, writing, yes.

Ms. Wheeler: Okay. And did you review the final offer with Ms. with [Petitioner]

[Petitioner] in

detail detail including standard range guidelines, guidelines, consecutive,

consecutive, concurrent, all of of

those things?

Mr. Marcoline: Specifically, the October 7`" Mr, 7" e-mail, 2019, from you to me Iisted, I

where everything was listed, I went that with him through that him in person person in

preparation for trial, but even before that II had already had several meetings meetings

with him at the correctional facility and in the courtroom where we we were going over

over the

the number

number of of charges contained contained within

within the

the criminal

information, their grading. I I mean, it is what it is. They're listed right there in the

the standard ranges forfor all of of the

the charges. Multiple occasions charges. Multiple occasions that that was

was

gone through in person with with [Petitioner]

[Petitioner] not only verbally, in person person and in

writing.

Evidentiary Hrg. Tr., 6/22/23 at at 102:18-103:14.

Moreover, Mr. Marcoline's credible testimony at the evidentiary hearing made it

wholly clear that Petitioner understood that he faced greater sentencing exposure, exposure, including

including

having his.sentences his sentences ran consecutively, if he proceeded to trial and was convicted:

Mr. Marcoline: Well, specifically, we went through what the plea offer was and the fact that the Commonwealth was seeking seeking consecutive sentences to formulate formulate aa13 toto 26-year 26-year plea offer. II also also went

went through

through with him

him if he were

to go to trial and were to get convicted of multiple offenses that it would be be entirely up to the discretion of Judge Judge Costanzo whether or not he could receive concurrent or consecutive sentences. Even at the sentencing hearing on [Petitioner's] on [Petitioner's] behalf, II was still arguing for concurrent sentences on all of the charges based on the fact it was a a singular conviction. I through I went through

all of that with

with [Petitioner]

[Petitioner] prior to jury selection ever beginning beginning and in

preparation for trial that if this goes south and you get get convicted, we are going to have to argue for concurrent sentences because this was one incident, one time, one search of the residence.

residence

6122/23 at 109:4-20. Mr. Marcoline further expounded upon Evidentiary Hrg. Tr., 6/22/23 upon his

discussions with Petitioner regarding the potential sentencing sentencing outcomes, stating stating that:

Mr. Marcoline: He understood clearly that if he gets convicted of multiple offences the judge could give him --I— Iwent through through it, you know,

it, you know, youyou get get

six on this plus three to six, plus three to six, for all, three to six all, if I I recall

correctly, a

a total of 1I

11 firearms. He was advised that each firearm, firearm, if he is

convicted of that offense, he could get get aastandard range

range sentence

sentence of 33to 6 6

years on each,

each, which would result atat that point to 66 point 33 t0 66 years just on the years just

guns, guns.

Id. at 1l0:15-23. Id. at 110:15-23. Based upon these these discussions with

with Petitioner,

Petitioner, Mr. Marcoline credibly credibly

testified that testified that "I "Ihave

have no

no doubt

doubt in

in my mind that

my mind that he

he understands

understands the

the difference between

difference between

concurrent and and consecutive sentences because he was asking me me to

to see

see if

if IIcan get

get him

concurrent sentences on some of his charges." Id. at 111:15-19.

1El5-19,

Therefore, as Mr. Marcoline's testimony evidences, Petitioner was well informed

and understood the potential adverse sentencing outcomes associated with proceeding proceeding to

trial. Having discussed the the Commonwealth's plea offer with Mr. Marcoline, in detail, detail, along

along

with Mr. with Mr. Marcoline's Marcoline's explanation of the explanation of the sentencing sentencing guideline

guideline ranges and the

ranges and the concept

concept of

of

running a a sentence concurrently or consecutively, Petitioner was fully aware of the fact

that the Commonwealth's plea offer represented aadiscount as compared compared to what he would

face in the event that he proceeded to to trial, was convicted, and had his sentence fashioned

by the Court. In fact, Petitioner's understanding of the fact that his sentences could be ran

consecutively was further demonstrated through his testimony at the evidentiary hearing,

when Petitioner stated that he discussed with Mr. Marcoline the potential of having his

sentences ran concurrently as a a means of getting

getting his lowered, his aggregate sentence lowered.

Evidentiary Hrg. Tr., Tr,, 6/22/23 at 48:18-24, 48:18-24. Furthermore, as Mr. Marcoline's credible

testimony reflected, Petitioner was also informed, through his discussions with Mr.

Marcoline, of precisely how long his aggregate sentence could amount to if he proceeded proceeded

to trial, trial. As such, Petitioner's contention that he had not been fully apprised apprised of the

sentencing sentencing risks risks associated with proceeding proceeding to

to trial arguable merit trial is without arguable merit and is is

demonstrative of aalast-ditch effort on Petitioner's part to combat aasentence that he is

dissatisfied with on whatever grounds possible, as is reflected by the following following testimony

testimony

at the evidentiary hearing:.

hearing:

Okay, Let me rephrase my question.

Ms. Wheeler: Okay. question. My question is you said you knew the risk of going to trial, that you you :thought

thought therethere

is aapotential

potential I

I

could get 15

IS to 30. So I'm saying if you would have gotten 15 to 30 instead 30.So

of 20 to 40, would you still be challenging this?

Petitioner: Petitioner; No.

Evidentiary Hrg, 6/2 2/ 23at 64:22-65:5.

Hrg. Tr., 6/22/23

Accordingly, for the aforementioned reasons, Petitioner has failed to satisfy satisfy the

Pierce test, as his claim of ineffective assistance of counsel, and the grounds in support support

thereof, are without'

without arguable merit.

merit

•

CONCLUSION CONCLUSION

Based on the above analysis of Petitioner's Amended Petition for Relief Pursuant to the

Post Conviction Relief Act, Aet, the testimony presented at the evidentiary hearing on June 22, 2023,

tthe he official record, and upon consideration of the respective briefs submitted by the parties, parties,

Petitioner's Amended Petitioner for Relief Pursuant to the Post Conviction Relief Act is

DENIED.

BY THE COURT: BY THE COURT:

VALARIE COSTANZO, JUD