Com. v. Schrauger, J.

• Court: Superior Court of Pennsylvania
• Decided: October 22, 2020
• Docket: 2038 MDA 2019
• Status: Unpublished

Opinion

J-A16045-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JORDAN ALEXANDER SCHRAUGER : : Appellant : No. 2038 MDA 2019

Appeal from the PCRA Order Entered November 20, 2019 In the Court of Common Pleas of Berks County Criminal Division at No(s): CP-06-CR-0002888-2016

BEFORE: PANELLA, P.J., STABILE, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.: FILED OCTOBER 22, 2020

Jordan Alexander Schrauger (“Schrauger”) appeals from the Order

denying his first Petition for relief filed pursuant to the Post Conviction Relief

Act (“PCRA”). See 42 Pa.C.S.A. §§ 9541-9546. We affirm.

The trial court previously summarized the factual history as follows:

On June 5, 2016, Elizabeth Beaulac [(“Beaulac”)] had an altercation with her fiancé, [Schrauger], who physically assaulted her. They were out drinking and when they [returned] home, [Schrauger] wanted to have sex with []Beaulac. [After] she said no[, Schrauger] slapped her … across the back of the head. While []Beaulac was trying to get away from [Schrauger], he grabbed her hair and pulled her back onto the bed. [Schrauger] kept [Beaulac] confined to the bedroom for [30 minutes], during which time []Beaulac asked him to let her go. [Schrauger] eventually let her out of the bedroom. [Beaulac attempted to leave the apartment], but [Schrauger] stopped her and put his hands over her face and nose until she was unable to breathe. [Schrauger eventually] released her[,] but then punched her about six times in the right eye[,] causing a laceration under her eye, a lump, and a contusion. At some point[, Schrauger] stopped and called 911. [Schrauger] then fled the apartment. [Police arrived shortly J-A16045-20

afterwards, and] Beaulac gave a short account of what happened [before] she was taken to the hospital….

Trial Court Opinion, 11/16/17, at 2.

On August 8, 2017, Schrauger was convicted by a jury of aggravated

assault, simple assault, false imprisonment, recklessly endangering another

person, and harassment.1, 2 The trial court subsequently sentenced Schrauger

to five to ten years in prison for the aggravated assault conviction, followed

by five years of probation for the false imprisonment conviction, plus fines and

costs. The remaining charges of simple assault, recklessly endangering

another person, and harassment merged for sentencing purposes. Schrauger

filed a timely post sentence Motion, which the trial court denied. This Court

affirmed Schrauger’s judgment of sentence on April 3, 2018.

Commonwealth v. Schrauger, 190 A.3d 680 (Pa. Super. 2018)

(unpublished memorandum). Schrauger did not seek allowance of appeal in

the Pennsylvania Supreme Court.

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1 18 Pa.C.S.A. §§ 2702(a)(1), 2701(a)(1), 2903, 2705, 2709(1).

2 Relevant to this appeal, Schrauger was also charged at a separate docket number, CP-06-CR-4930-2016 (“4930-2016”), with intimidation of a witness (18 Pa.C.S.A. § 4952(a)(3)), stalking (18 Pa.C.S.A. § 2709.1(a)(2)), and harassment (18 Pa.C.S.A. § 2709(a)(4)). Schrauger did not appeal his conviction in that case and accordingly, it is not before this Court for review. However, as discussed infra, in two of the three plea offers subject to this appeal, the Commonwealth’s plea offers included a plea to the intimidation of a witness charge at 4930-2016.

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On April 30, 2018, Schrauger, pro se, filed the instant, timely PCRA

Petition. The PCRA court appointed Schrauger counsel, who filed an Amended

PCRA Petition. In the Amended PCRA Petition, Schrauger claimed that his trial

counsel was ineffective for failing to adequately convey the Commonwealth’s

plea offers to him, based upon counsel’s failure to inform Schrauger that he

would not be pleading guilty to aggravated assault. Additionally, Schrauger

asserted that his trial counsel rendered ineffective assistance by failing to play

a recording of the 911 call at trial. Further, Schrauger claimed that his trial

counsel advised him that they were unlikely to succeed at trial, but would be

successful on appeal. Following a hearing, the PCRA court denied Schrauger’s

Petition. Schrauger timely filed a Notice of Appeal and a court-ordered

Pa.R.A.P. 1925(b) Concise Statement of errors complained of on appeal.

Schrauger now presents the following claims for our review:

1. Did the PCRA court err in denying post-conviction relief since [Schrauger]’s Sixth Amendment right to effective assistance of counsel during plea negotiations was violated[,] given the admission by plea counsel that she couldn’t “recall specifically” whether she took the second plea offer to [Schrauger,] but could remember only that she “did discuss” the plea offer with him[,] and given that she did not testify that she disclosed the full contents and details of the written plea offer to him?

2. Did the PCRA court err in denying post-conviction relief since [Schrauger]’s Sixth Amendment right to effective assistance of counsel during plea negotiations was violated given the admission by plea counsel that she did not mail or otherwise deliver a copy of the written plea offer to [Schrauger]?

3. Did the PCRA court [sic] in denying post-conviction relief in violation of the U.S. Supreme Court standard in [Missouri v. Frye], 566 U.S. 134 (2012)[,] as Pennsylvania does not have

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adequate “measures to help ensure against late, frivolous, or fabricated claims” of uncommunicated plea offers?

Brief for Appellant at 7 (renumbered).

Our standard of review of an order denying [a] PCRA [petition] is whether the record supports the PCRA court’s determination and whether the PCRA court’s determination is free of legal error. The PCRA court’s findings will not be disturbed unless there is no support for the findings in the certified record.

Commonwealth v. Phillips, 31 A.3d 317, 319 (Pa. Super. 2011) (internal

citations omitted).

Schrauger’s first two claims are related, and we address them together.

In his first claim, Schrauger argues that his trial counsel’s failure to

communicate the specific contents of the plea offers violated his right to

effective counsel. Brief for Appellant at 14, 16. Schrauger cites Missouri v.

Frye, 566 U.S. 134, 145 (2012), in which the U.S. Supreme Court held that

counsel has a duty to communicate formal offers from the prosecution to

accept a plea on terms and conditions that may be favorable to the defendant.

Brief for Appellant at 14, 16. Schrauger acknowledges his trial counsel

communicated the plea offers to him. Id. However, Schrauger contends that

his counsel only advised him of the proposed sentence, and not the offenses

to which he would be pleading guilty. Id. at 17. Schrauger asserts that he

would have accepted any plea offer that did not include a plea to aggravated

assault, and his trial counsel’s omission of the offenses prevented him from

accepting the plea. Id. at 16-17.

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In his second claim, Schrauger argues that his trial counsel’s failure to

mail, or otherwise provide, written versions of the plea offers to Schrauger

constituted ineffective assistance of counsel. Id. at 17. Schrauger claims

that a mere verbal discussion of a plea offer is not sufficient. Id. at 17-18.

Counsel is presumed to be effective and “the burden of demonstrating

ineffectiveness rests on [the] appellant.” Commonwealth v. Rivera, 10

A.3d 1276, 1279 (Pa. Super. 2010).

To satisfy this burden, an appellant must plead and prove by a preponderance of the evidence that[] (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 his interests; and, (3) but for counsel’s ineffectiveness there is a reasonable probability that the outcome of the challenged proceeding would have been different. Failure to satisfy any prong of the test will result in rejection of the appellant’s ineffective assistance of counsel claim.

Commonwealth v. Holt, 175 A.3d 1014, 1018 (Pa. Super. 2017) (internal

citations and quotation marks omitted).

Counsel has a “duty to communicate formal offers from the prosecution

to accept a plea on terms and conditions that may be favorable to the

defendant.” Commonwealth v. Hernandez, 79 A.3d 649, 653 (Pa. Super.

2013). In order to be entitled to relief on a claim that trial counsel failed to

communicate a plea offer, an appellant must prove that: “(1) a [plea offer]

was made; (2) trial counsel failed to inform him of such [an] offer; (3) trial

counsel had no reasonable basis for failing to inform him of the plea offer; and

(4) he was prejudiced thereby.” Commonwealth v. Chazin, 873 A.2d 732,

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734 (Pa. Super. 2005). Additionally, “[t]o show prejudice from ineffective

assistance of counsel where a plea offer has lapsed … because of counsel’s

deficient performance, defendants must demonstrate a reasonable probability

that they would have accepted the earlier plea offer had they been afforded

effective assistance of counsel.” Frye, 566 U.S. at 147. A defendant must

also demonstrate “a reasonable probability [that] the plea would have been

entered without the prosecution cancelling it or the trial court refusing to

accept it.” Id.

Our review of the record indicates that the Commonwealth

communicated three written plea offers to Schrauger’s trial counsel. At the

PCRA hearing, trial counsel testified as to the contents of all three plea offers.

N.T. (PCRA Hearing), 11/4/19, at 27-31. The first plea offer was a plea to

aggravated assault with a negotiated sentence of five to ten years in prison.

Id. at 27-28. Trial counsel testified that the second plea offer was a plea to

simple assault and false imprisonment at Docket Number CP-06-CR-2888-

2016 (“2888-2016”) as well as intimidation of a witness at 4930-2016, in

exchange for a negotiated sentence of two to four years in prison, followed by

two years of probation. Id. at 28-29. Further, trial counsel testified that the

third plea offer was a plea to simple assault and false imprisonment at 2888-

2016, as well as intimidation of a witness at 4930-2016. Id. at 29-30. While

similar to the second plea offer, the negotiated sentence for the third plea

offer was to one-and-a-half to four years in prison, followed by two years of

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probation. Id. at 30. Finally, trial counsel testified that both the second plea

offer and the third plea offer were communicated to Schrauger, in court, as

part of this trial court’s unique practice of preparing a Memorandum of Plea

Negotiations.3 See Memorandum of Plea Negotiations, 8/8/2017, at 1

(unnumbered); see also N.T. (PCRA Hearing), 11/4/19, at 28-31 (wherein

trial counsel detailed her discussions with Schrauger about the plea offers);

N.T. (Jury Trial), 8/8/2017, at 4 (wherein the Memorandum of Plea

Negotiations was signed and dated by the parties).

Schrauger’s trial counsel testified that she communicated each offer to

Schrauger. N.T. (PCRA Hearing), 11/4/19, at 28-29. Trial counsel testified

that she communicated with Schrauger via video conference as well as in

person about the plea offers “several times.” Id. at 28-30. Further, trial

counsel testified that Schrauger refused to accept a state sentence or a plea

to the intimidation of a witness charge at Docket No. 4930-2016. Id. at 30-

31. In the week preceding trial, trial counsel discussed the third plea offer in

three video conferences with Schrauger. Id. at 31. Trial counsel informed

Schrauger that he was “taking a big risk” going to trial “because he was

looking at [five] years where he’s being offered [one-and-a-half].” Id.

3 The Memorandum of Plea Negotiations, a document unique to this trial court, is a form that contains the Commonwealth’s final plea offer. PCRA Court Opinion, 1/17/20, at 6. The Memorandum of Plea Negotiations is signed by the defendant, his trial counsel, and the district attorney to memorialize that the final plea offer has been rejected by the defendant prior to the commencement of trial. Id.

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Additionally, the following exchange occurred between trial counsel and

PCRA counsel on cross-examination:

[PCRA Counsel]: These plea offer sheets which you [] indicated you showed all those to [Schrauger], correct?

[Trial Counsel]: I don’t recall if I physically showed him the paper. I know that I have discussed all of those offers with him numerous times.

[PCRA Counsel]: Is there a reason why you would not have physically showed that to him?

[Trial Counsel]: Well, I can tell you for the ones that were close in [sic] trial, he was in jail so I did video conferences and relayed the offers right away.

N.T. (PCRA Hearing), 11/4/19, at 34-35.

In rejecting Schrauger’s claims, the PCRA court found Schrauger’s trial

counsel’s testimony to be credible. See PCRA Court Opinion, 1/17/20, at 3;

see also PCRA Court Opinion, 11/20/19, at 1 (unnumbered). Additionally,

the PCRA court determined that Schrauger failed to demonstrate that his claim

had arguable merit, where trial counsel had communicated, and discussed at

length, each plea offer with Schrauger. See PCRA Court Opinion, 1/17/20, at

4. Further, the PCRA court noted that while Frye requires an offer to be

communicated “properly and fully,” there is no requirement to present a plea

offer to the defendant in writing. See id. at 5. Finally, the PCRA court found

that “Schrauger [has] failed to [meet] his burden that any of [trial] counsel’s

actions prejudiced [Schrauger] and that, but for [trial] counsel’s actions the

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outcome of the proceeding would have been any different.” PCRA Court Order,

11/20/19, at 2.

Upon review of the record, we agree with the PCRA court’s conclusion

that Schrauger failed to demonstrate prejudice. See Rivera, supra; see

also Holt, supra. Moreover, we observe that by Schrauger’s own

statements, he would have rejected the first plea offer. See id. at 9-12

(wherein Schrauger testified that he would never plead guilty to aggravated

assault); see also Brief for Appellant at 16-17. Schrauger was informed of

both the second plea offer and the third plea offer by his counsel, through

video conferences and in-person court discussions, as well as the

Memorandum of Plea Negotiations prior to trial. See N.T. (PCRA Hearing),

11/4/19, at 28-31, 34-35; see also Memorandum of Plea Negotiations,

8/8/17, at 1 (unnumbered). Thus, we find that Schrauger has failed to

demonstrate a reasonable probability that he would have accepted any of the

plea offers even if the offers had been presented to him in writing. See Frye,

566 U.S. at 147; see also Holt, supra. Accordingly, we cannot grant relief

on his first and second claims claims.

In his third claim, Schrauger contends that Pennsylvania has not

enacted any “measures to help ensure against late, frivolous, or fabricated

claims[] of uncommunicated plea offers.” Brief for Appellant at 18. Schrauger

indicates that the Pennsylvania Rules of Criminal Procedure are silent on the

“duties of communication.” Id. Schrauger asserts that “the duties of

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communication are broad based and are encompassed in our Rules of

Professional Conduct and case law.” Id. Schrauger argues that, pursuant to

Frye, Pennsylvania is required to adopt specific measures to guard against

“late, frivolous, or fabricated” claims of uncommunicated plea offers. Id. at

18-19.

Initially, we observe that Schrauger did not raise his final claim in either

his pro se PCRA Petition or in his subsequent, counseled, Amended PCRA

Petition. Indeed, Schrauger failed to raise this issue before the PCRA court,

as the first appearance of this claim is in Schrauger’s Concise Statement of

errors complained of on appeal. It is well-settled that “issues not raised in a

PCRA [p]etition cannot be considered on appeal.” Commonwealth v. Lauro,

819 A.2d 100, 103 (Pa. Super. 2003) (citation omitted); see also

Commonwealth v. Williams, 900 A.2d 906, 909 (Pa. Super. 2006) (stating

that “including an issue in a [Rule 1925(b)] Concise Statement does not revive

issues that were waived in earlier proceedings”); Pa.R.A.P. 302(a) (stating

that “[i]ssues not raised in the lower court are waived and cannot be raised

for the first time on appeal.”). Accordingly, Schrauger’s final claim is

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waived.4

Based upon the foregoing, we affirm the PCRA court’s Order denying

Schrauger’s Petition.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 10/22/2020

4 We note that this claim is also waived because Schrauger has failed to adequately develop this claim for our review. See Pa.R.A.P. 2119(a) (requiring an appellant to support his argument with “such discussion and citation of authorities as are deemed pertinent.”); see also Commonwealth v. Johnson, 985 A.2d 915, 924 (Pa. 2009) (stating that “where an appellate brief fails to provide any discussion of a claim with citation to relevant authority[,] or fails to develop the issue in any other meaningful fashion capable of review, that claim is waived.”). In his brief, Schrauger baldly asserts that Pennsylvania has not adhered to the specific requirements set forth by the Supreme Court of the United States in Frye. Brief for Appellant at 18-19. However, Schrauger does not detail what these requirements are, nor does Schrauger explain how Pennsylvania has failed to adhere to said requirements. Instead, Schrauger appears to cite to the entirety of the Pennsylvania Rules of Criminal Procedure as well as “our Rules of Professional Conduct and case law” without providing discussion or specific citations to either. Id. at 18.

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