Opinion
J-S21006-16 No. 2209 EDA 2015
04-25-2016
COMMONWEALTH OF PENNSYLVANIA, Appellee v. GEORGE C. PAYNE, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order June 18, 2015
In the Court of Common Pleas of Montgomery County
Criminal Division at No(s): CP-46-CR-0008079-2012 BEFORE: BENDER, P.J.E., LAZARUS, J., and STEVENS, P.J.E. MEMORANDUM BY BENDER, P.J.E.:
Former Justice specially assigned to the Superior Court.
George C. Payne appeals from the order entered June 18, 2015, dismissing his petition for relief filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.
In August 2012, while driving westbound on Route 422 in Montgomery County, Pennsylvania, Appellant intentionally slammed on his brakes, causing two cars behind him to collide and three occupants to suffer minor injuries. See Notes of Testimony (N.T.), 07/09/2013, at 12 (incorporating the affidavit of probable cause as the factual basis for Appellant's guilty plea). At the scene, Appellant admitted to police, "I was so angry maybe I was trying to kill them!" Id.
In July 2013, Appellant entered a negotiated plea to three counts of recklessly endangering another person in exchange for an aggregated term of six years' probation. See 18 Pa.C.S. § 2705. Appellant did not appeal his judgment of sentence.
In July 2014, Appellant timely filed a counseled petition for collateral relief, alleging that his plea counsel was ineffective for failing to advise him of the so-called "assured clear distance rule." See 75 Pa.C.S. § 3361. Based on counsel's alleged ineffectiveness, Appellant sought to withdraw his plea.
This rule requires "a driver [to] keep his vehicle under such control that he can always stop within the distance that he can clearly see." Metro v. Long Transp. Co., 127 A.2d 716, 720 (Pa. 1956).
In June 2015, the PCRA court denied Appellant collateral relief and dismissed his petition without a hearing. Appellant timely appealed and filed a court-ordered Pa.R.A.P. 1925(b) statement. The PCRA court issued a responsive opinion, clarifying that there was no authority to apply the rule in a criminal case and that Appellant's intentional conduct rendered the assured clear distance rule inapposite. See PCRA Court Opinion, 08/31/2015, at 3.
Appellant raises the following issue:
1. [Whether] the PCRA [c]ourt err[ed] by holding, without an evidentiary hearing, that trial counsel was not ineffective for failing to advise [Appellant] of a viable defense before [Appellant] pleaded guilty[.]Appellant's Brief at 4.
We review an order denying a petition under the PCRA to determine whether the findings of the PCRA court are supported by the evidence of record and free of legal error. Commonwealth v. Ragan , 923 A.2d 1169, 1170 (Pa. 2007). We afford the court's findings deference unless there is no support for them in the certified record. Commonwealth v. Brown , 48 A.3d 1275, 1277 (Pa. Super. 2012) (citing Commonwealth v. Anderson , 995 A.2d 1184, 1189 (Pa. Super. 2010)).
In this case, the PCRA court dismissed Appellant's petition without a hearing. See PCRA Court Order, 10/16/2014, at 1 (citing in support Pa.R.Crim.P. 907). There is no absolute right to an evidentiary hearing. See Commonwealth v. Springer , 961 A.2d 1262, 1264 (Pa. Super. 2008). On appeal, we examine the issues raised in light of the record "to determine whether the PCRA court erred in concluding that there were no genuine issues of material fact and in denying relief without an evidentiary hearing." Id.
We presume counsel is effective. Commonwealth v. Washington , 927 A.2d 586, 594 (Pa. 2007). To overcome this presumption and establish ineffective assistance of counsel, a PCRA petitioner must prove, by a preponderance of the evidence: "(1) the underlying legal issue has arguable merit; (2) counsel's actions [or inaction] lacked an objective reasonable basis; and (3) actual prejudice befell the petitioner from counsel's act or omission." Commonwealth v. Johnson , 966 A.2d 523, 533 (Pa. 2009) (citations omitted). Regarding the reasonable basis of counsel's course of action,
we do not question whether there were other more logical courses of action which counsel could have pursued; rather, we must examine whether counsel's decisions had any reasonable basis. We will conclude that counsel's chosen strategy lacked a reasonable basis only if [an] [a]ppellant proves that an alternative not chosen offered a potential for success substantially greater than the course actually pursued.Commonwealth v. Paddy , 15 A.3d 431, 442 (Pa. 2011) (internal punctuation modified and citations omitted).
A claim will be denied if the petitioner fails to meet any one of these requirements. Springer , 961 A.2d at 1267 (citing Commonwealth v. Natividad , 938 A.2d 310, 322 (Pa. 2007)); Commonwealth v. Jones , 942 A.2d 903, 906 (Pa. Super. 2008). Moreover, "bald assertions" of ineffectiveness are insufficient. Paddy , 15 A.3d at 443.
Here, Appellant contends that the Commonwealth criminalized his motor vehicle accident. Appellant's Brief at 14. According to Appellant, however, attributing "fault" for the accident was an open issue. Based upon this premise, Appellant asserts that his plea counsel was ineffective for failing to advise him that the assured clear distance rule afforded him an opportunity to challenge the charges against him. Appellant cites no authority to support his argument, suggesting this lack of authority is "immaterial." Id.
No relief is due. The assured clear distance rule requires "a motorist to be capable of stopping within the distance that he or she can clearly see." Lockhart v. List , 665 A.2d 1176, 1179 (Pa. 1995); see also Metro , 127 A.2d at 720; 75 Pa.C.S. § 3361. However, application of the rule is dependent upon the circumstances present:
"Assured clear distance ahead" means only what it says: a clear distance that is assured, that is, one that can reasonably be depended on. The rule does not mean that the motorist must carry in his mind every possible series of combinations which could conspire against him, and that he must transport ready-made solutions to overcome all fortuitous hazards which suddenly face him. Assured does not mean guaranteed. [For example,] [w]hen a driver approaches the crest of a hill, there comes a moment when, because of the convexity of the highway, he has practically no guaranteed clear distance ahead, but he can reasonably be assured that no one will be insane enough to approach the crest of the road from the other side of the summit, using the contrary lane of travel. If such a predicament should develop and a collision result, the motorist on his own side of the thoroughfare cannot be declared guilty of contributory negligence as a matter of law on the theory that he did not have an assured clear distance ahead. A sharp curve in the roadway presents similar problems; certainly a driver entering or exiting such a curve will often reach a point at which there is virtually no guaranteed clear distance ahead. The assured clear distance ahead rule if taken to the extreme would, under such circumstances, provide that any forward movement would violate the rule where a driver's vision is impaired by such topography. This would be an incorrect interpretation of the rule. The assured clear distance ahead rule has never been interpreted by this Court as imposing a duty upon a driver to anticipate any and all possible occurrences, however remote. Rather, a driver is required to anticipate only that which is reasonable. In short, the assured clear distance ahead rule simply requires a driver to control the speed of his or her vehicle so that he or she will be able to stop within the distance of whatever may reasonably be expected to be within the driver's path.Lockhart , 665 A.2d at 1179-80 (emphasis in original; internal citations omitted).
Though well settled in its application to civil disputes, we are unaware of any precedent supporting the rule's application to criminal liability. Based upon this lack of authority, plea counsel's failure to discuss the assured clear distance rule with Appellant was reasonable. Paddy , 15 A.3d at 442-43. Further, Appellant's failure to support his bald assertion of ineffectiveness renders it insufficient as a matter of law. Id.
Moreover, even if we were to recognize the rule in a criminal case, the specific circumstances present here militate against its application. Appellant acknowledged his conduct was intentional. Indeed, Appellant admitted to police, "I was so angry maybe I was trying to kill them!" These facts remain undisputed. Accordingly, Appellant's claim is without merit. See Lockhart , 665 A.2d at 1179-80 (rejecting application of the rule in light of "insane" conduct).
We note also that Appellant's assertion of prejudice lacks candor. See Appellant's Brief at 14. Initially, Appellant faced felony charges of aggravated assault and risking a catastrophe, crimes that carry the potential for a significant term of imprisonment. In light of Appellant's admitted conduct, the plea negotiated by Appellant's former counsel, resulting in a probationary sentence based on less serious crimes, was clearly in Appellant's best interest.
For the above reasons, we discern no error in the PCRA court's decision to dismiss Appellant's petition without a hearing. Appellant's claim is without merit. He is entitled to no relief.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 4/25/2016