Com. v. Washington, T.

• Court: Superior Court of Pennsylvania
• Decided: July 20, 2018
• Docket: 2125 EDA 2017
• Status: Unpublished

Opinion

J-S27042-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : TERRANCE WASHINGTON, : : Appellant : No. 2125 EDA 2017

Appeal from the PCRA Order June 29, 2017 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0711021-1996, CP-51-CR-0711091-1996, CP-51-CR-0711141-1996, CP-51-CR-1009712-1996, CP-51-CR-1107481-1997, CP-51-CR-1107621-1997, CP-51-CR-1107651-1997, CP-51-CR-1107671-1997

BEFORE: SHOGAN, J., LAZARUS, J., and DUBOW, J.

MEMORANDUM BY DUBOW, J.: Filed July 20, 2018

Appellant, Terrance Washington, appeals from the June 29, 2017 Order

dismissing his Petition filed pursuant to the Post-Conviction Relief Act

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

A prior panel of this Court forth the facts and torturous procedural

history of this case as follows.

[Appellant] was arrested and charged in connection with several robberies of state liquor stores committed in 1996. While awaiting trial, [Washington] was placed on house arrest with electronic monitoring. [Washington] removed his electronic ankle monitor and committed additional robberies. Following a two-day jury trial in January 1998, [Washington] was found guilty of four counts of robbery, two counts of criminal conspiracy, two counts of violations of the Uniform Firearms Act (VUFA) and two counts of possessing an instrument of crime (PIC). On January 21, 1998, [Washington] entered an open guilty plea on 17 additional counts of robbery, conspiracy, PIC, VUFA, and theft of firearms. On J-S27042-18

February 24, 1998, the trial court sentenced [Appellant] to an aggregate sentence of 35 to 70 years of state incarceration.

[Appellant’s] Petition to Modify Sentence was denied on March 5, 1998. No direct appeal was filed. On December 14, 1998, [Appellant] filed a pro se Motion to file an appeal nunc pro tunc, alleging that counsel failed to file a timely requested direct appeal. On January 5, 2000, [Appellant] filed a PCRA Petition, which was subsequently denied. On appeal from that denial, the Pennsylvania Superior Court remanded the matter for a determination of which cases required the reinstatement of [Appellant’s] direct appeal rights nunc pro tunc, since [Appellant’s] December 1998 Motion should have been treated as a timely PCRA Petition. On October 14, 2003, [Appellant’s] direct appeal rights were reinstated for seven of his eight cases…. The Pennsylvania Superior Court affirmed [Appellant’s] convictions and sentence on October 14, 2005. See Commonwealth v. Washington, 890 A.2d 1109 (Pa. Super. 2005) (unpublished memorandum). [Appellant’s] Petition for allowance of appeal to the Pennsylvania Supreme Court was denied on June 27, 2006. See Commonwealth v. Washington, 902 A.2d 1241 (Pa. 2006).

On January 24, 2006, [Appellant] filed a second pro se PCRA Petition, his 1998 pro se Motion having been treated as his first PCRA Petition. On July 24, 2007, the PCRA court conducted a Grazier hearing, and determined that [Appellant] could proceed pro se. On October 9, 2007, [Appellant] filed a pro se amended Petition. On May 12, 2008, the PCRA court sent [Appellant] a Pa.R.Crim.P. 907 Notice, notifying him that his Petition would be dismissed because it lacked merit. On August 6, 2008, after review of the PCRA Petition, the Commonwealth’s Motion to dismiss, and [Appellant’s] reply to the Rule 907 Notice, the PCRA court dismissed [Appellant’s] PCRA Petition as being without merit. [Appellant] filed a Notice of Appeal directly with the Superior Court, which returned the appeal to [Appellant] since he had filed it in the wrong court. [Appellant] then sent his Notice of Appeal to the Court of Common Pleas. On November 5, 2008, the Court of Common Pleas Criminal Post-Trial Unit returned the appeal to [Appellant], indicating that it was untimely filed and that he “must file a PCRA to have his appeal rights reinstated.”

[On November 20, 2008, Appellant] petitioned for PCRA Relief, seeking the reinstatement of his right to appeal the PCRA court’s August 6, 2008 Order. [On February 4, 2011, t]he PCRA court

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dismissed [Appellant’s] PCRA Petition as untimely filed. On appeal, this Court reversed, reinstating Washington’s right to appeal the PCRA court’s August 6, 2008 Order. Commonwealth v. Washington, 47 A.3d 1255 (Pa. Super. 2012) (unpublished memorandum).

Commonwealth v. Washington, No. 532 EDA 2011 (Pa. Super. filed May

12, 2015) (unpublished memorandum).

Following reinstatement of his appellate rights, Appellant appealed from

the PCRA court’s August 6, 2008 Order. Relevant to the instant matter,

Appellant claimed in that appeal that his trial counsel was ineffective for failing

to communicate a plea offer to him and for failing to call Zenata Harper as a

trial witness. This Court held that the PCRA court erred in denying Appellant

relief on these issues without holding an evidentiary hearing and remanded

the matter to the PCRA court for an evidentiary hearing to address these

claims. See id.

On June 29, 2017, the PCRA court held a hearing on Appellant’s claims.

At the commencement of the hearing, Appellant’s counsel informed the court

that Appellant was abandoning his ineffectiveness claim as it pertained to

Zenata Harper. N.T., 6/29/17, at 5-6. See also PCRA Ct. Op., 10/11/17, at

4. Thus, the court heard testimony related only to Appellant’s claim that his

counsel failed to communicate a plea offer to him.

Appellant testified on his own behalf, as did his trial counsel, Michael

Contos, Esquire. The Commonwealth presented the testimony of three

witnesses: Nigel Greene, Esquire, an assistant district attorney who was

assigned to four of Appellant’s cases; Robert Jovanov, Esquire, an attorney

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who represented Appellant at his pretrial conference in December 1996 and

the custodian of record for Appellant’s file at the Defender Association; and

Charles Junod, Esquire, an attorney who handled pretrial matters for the

district attorney’s office in 1996. Counsel also stipulated to the testimony of

former public defender, Maureen McCartney.1

Following the evidentiary hearing, the PCRA court denied Appellant’s

claim for relief. This appeal followed. Both Appellant and the PCRA court

complied with Pa.R.A.P. 1925.

Appellant raises the following issue on appeal:

Did the PCRA [c]ourt err in again dismissing Appellant’s PCRA Petition because the evidentiary hearing indicated that trial counsel knew of a global offer of 20 to 40 years or 25 to 50 years but did not discuss the offer with Appellant and because counsel was per se ineffective, there was no strategic excuse for this ineffectiveness, and Appellant suffered prejudice?

Appellant’s Brief at 4.

Appellant appeals from the denial of his PCRA petition. Our standard of

review is well-settled. We review the denial of a post-conviction petition to

determine whether the record supports the PCRA court’s findings and whether

its order is otherwise free of legal error. Commonwealth v. Faulk, 21 A.3d

1196, 1199 (Pa. Super. 2011). To be eligible for relief pursuant to the PCRA,

Appellant must establish, inter alia, that his conviction or sentence resulted

____________________________________________

1We adopt the PCRA court’s summary of the testimony. See PCRA Ct. Op. at 4-8.

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from one or more of the enumerated errors or defects found in 42 Pa.C.S.A.

§ 9543(a)(2).

To obtain relief under the PCRA on a claim that counsel was ineffective,

a petitioner must establish by a preponderance of the evidence that counsel’s

ineffectiveness “so undermined the truth-determining process that no reliable

adjudication of guilt or innocence could have taken place.” Commonwealth

v. Johnson, 966 A.2d 523, 532 (Pa. 2009) (citing 42 Pa.C.S. §

9543(a)(2)(ii)). “Generally, counsel’s performance is presumed to be

constitutionally adequate, and counsel will only be deemed ineffective upon a

sufficient showing by the petitioner.” Id. (citation omitted). This requires

the petitioner to demonstrate that: (1) the underlying claim is of arguable

merit; (2) counsel had no reasonable strategic basis for his or her action or

inaction; and (3) petitioner was prejudiced by counsel’s act or omission. See

id. at 533; see also Strickland v. Washington, 466 U.S. 668, 687 (1984).

Failure to satisfy any prong of the test will result in rejection of the appellant’s

ineffective assistance of counsel claim. Commonwealth v. Jones, 811 A.2d

994, 1002 (Pa. 2002).

Appellant argues that Attorney Contos was ineffective in failing to

communicate a plea offer made by the Commonwealth. In particular,

Appellant alleges that Attorney Contos knew of a “global offer” for all of his

charges of either 20 to 40 years’ or 25 to 50 years’ incarceration, but did not

discuss the offer with Appellant. Appellant’s Brief at 14. Appellant also claims

that he is entitled to relief because the Commonwealth “offered no evidence

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to rebut the fact that there was such an offer at the time of trial because” the

assistant district attorney who prosecuted the case did not testify at the

evidentiary hearing. Id. at 14-15. Appellant avers that his counsel’s strategy

“had no reasonable basis and bordered on insanity,” and that his counsel’s

conduct prejudiced him because he is currently serving a sentence in excess

of the one “associated with the global plea deal.” Id. at 15.

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

communicate a plea offer, a petitioner must plead and prove that “(1) an offer

for a plea was made; (2) trial counsel failed to inform him of such 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. Copeland, 554 A.2d

54, 61 (Pa. Super. 1988).

The Honorable Genece Brinkley has authored a comprehensive,

thorough, and well-reasoned Rule 1925(a) Opinion, citing the record and

relevant case law in addressing Appellant’s ineffectiveness claim. After a

thorough review of the certified record, including the Notes of Testimony from

Appellant’s evidentiary hearing, the briefs of the parties, the applicable law,

and the PCRA court’s Opinion, we conclude that there is no merit to Appellant’s

claim. Accordingly, we adopt that Opinion as our own and affirm the court’s

denial of PCRA relief. See PCRA Ct. Op at 9-16 (concluding, inter alia, that

Appellant failed to establish each of the prongs set forth in Commonwealth

v. Copeland, 554 A.2d 54 (Pa. Super. 1988) because (1) Appellant failed to

show that the Commonwealth had extended a “global offer” of 20 to 40 years

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or 25 to 50 years because at the time he claims the Commonwealth made this

offer his later cases were still in the preliminary hearing stage and were not

yet ready for plea negotiations; (2) the January 7, 1998 docket notation

marked “offer rejected” was most likely a clerical error; (3) there is no

evidence that the Commonwealth ever made any offer with respect to

Appellant’s four 1997 cases; (4) Appellant failed to prove that his attorneys

failed to convey offers to him or lacked a reasonable basis for doing so as the

evidence demonstrated that the Commonwealth made two separate offers of

which Appellant’s counsel informed him and he formally rejected; (5) Attorney

Contos’s testimony evidenced a reasonable basis for not conveying certain

plea offers to Appellant; and (6) Appellant failed to demonstrate that he

suffered prejudice because the “global offer” he relies upon to support this

prong never existed).

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 7/20/2018

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