Opinion
1483 MDA 2021 J-S10007-22
04-19-2022
COMMONWEALTH OF PENNSYLVANIA v. STEPHEN PAUL RIVEST Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order Entered October 4, 2021 In the Court of Common Pleas of Mifflin County Criminal Division at CP-44-CR-0000357-2016
BEFORE: MURRAY, J., McLAUGHLIN, J., and COLINS, J. [*]
MEMORANDUM
MURRAY, J.
Stephen Paul Rivest (Appellant) appeals from the order denying his petition filed pursuant to the Post Conviction Relief Act (PCRA). We affirm.
This Court previously summarized the facts leading to Appellant's convictions as follows:
On June 7, 2016, Appellant, driving a maroon pickup truck, fled from police officers who were trying to serve a warrant for his arrest. During the subsequent high-speed pursuit, various witnesses observed Appellant violating numerous traffic signals, speeding (at speeds approaching 100 m.p.h.), and, at times, travelling against the flow of traffic.
. . .
[After an extended chase, and almost hitting other vehicles, ] Appellant brought his vehicle to a stop on U.S. 22 ...
Ashley Shade was approaching a red light at that location when Appellant swerved around and then in front of her vehicle, missing her by mere inches. Ms. Shade had to veer into a bank to avoid being hit. Appellant then abruptly stopped his truck, got out, and approached Ms. Shade's vehicle. He pulled on her door handles in an attempt to get in, but he was unsuccessful, as the doors remained locked. The police arrived on the scene a few seconds later and took Appellant into custody.Commonwealth v. Rivest, 209 A.3d 534 (Pa. Super. 2019) (unpublished memorandum at 1-3) (citations omitted).
The Commonwealth charged Appellant with numerous crimes, and a jury thereafter convicted him of driving under the influence of alcohol or controlled substance (DUI), aggravated assault, fleeing or attempting to elude a police officer, multiple counts of recklessly endangering another person, and related summary offenses. The trial court sentenced Appellant to an aggregate prison term of 12½ to 28 years. On direct appeal, this Court affirmed Appellant's convictions, vacated his sentence for DUI, and remanded for resentencing. See id. (unpublished memorandum at 14). On remand, the trial court reduced Appellant's DUI sentence, resulting in an aggregate sentence of 12½ to 25 years in prison. Amended Sentencing Order, 4/26/19.
See 75 Pa.C.S.A. § 3802; 18 Pa.C.S.A. §§ 2702, 3733, 2705.
On February 26, 2020, Appellant pro se filed the instant PCRA petition. Following appointment of counsel, Appellant filed an amended PCRA petition on August 26, 2020. The PCRA court held evidentiary hearings on October 5, 2020, and June 21, 2021. On October 4, 2021, the PCRA court denied relief. Appellant timely appealed. Both Appellant and the PCRA court complied with Pa.R.A.P. 1925.
Appellant presents three issues for our review:
1. Did the [PCRA] court err in denying [Appellant's PCRA petition], when his trial counsel failed to communicate the Commonwealth's plea offer to him in a timely fashion and also failed to obtain an extension of the deadline for accepting the plea offer, resulting in [Appellant] receiving the plea offer too late to accept it?
2. Did the [PCRA] court err in denying [Appellant's PCRA petition], when he had sought to communicate with his counsel multiple times prior to trial to no avail, when he had filed a motion to proceed pro se well in advance of trial, and when the trial court failed to address his motion until the day of trial?
3. Did the [PCRA] court err in denying [Appellant's PCRA petition], when his trial counsel failed to detect that two jurors had fallen asleep during the trial and, when [Appellant] brought this fact to his trial counsel's attention, his trial counsel failed to address it with the trial court?Appellant's Brief at 2-3.
In reviewing the PCRA court's order,
we must determine whether the findings of the PCRA court are supported by the record and whether the court's legal conclusions are free from error. The findings of the PCRA court and the evidence of record are viewed in a light most favorable to the prevailing party. The PCRA court's credibility determinations, when supported by the record, are binding; however, this court applies a de novo standard of review to the PCRA court's legal conclusions. We must keep in mind that the petitioner has the burden of persuading this Court that the PCRA court erred and that such error requires relief.Commonwealth v. Montalvo, 205 A.3d 274, 286 (Pa. 2019) (citations omitted).
Appellant first argues that his trial counsel, Michael Gingrich, Esquire (Attorney Gingrich), was ineffective for not timely conveying the Commonwealth's plea offer. Appellant's Brief at 15. Appellant asserts Attorney Gingrich only communicated the offer after it had expired. Id. According to Appellant, he now "endures a much longer sentence as a result of his counsel's ineffectiveness[.]" Id. at 17. At the outset, we recognize counsel "is presumed to have rendered effective assistance." Commonwealth v. Hopkins, 231 A.3d 855, 871 (Pa. Super. 2020).
[T]o establish a claim of ineffective assistance of counsel, a defendant must show, by a preponderance of the evidence, ineffective 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. The burden is on the defendant to prove all three of the following prongs: (1) the underlying claim is of arguable merit; (2) that counsel had no reasonable strategic basis for his or her action or inaction; and (3) but for the errors and omissions of counsel, there is a reasonable probability that the outcome of the proceedings would have been different.Commonwealth v. Sandusky, 203 A.3d 1033, 1043 (Pa. Super. 2019) (citations omitted). "A failure to satisfy any prong of the test for ineffectiveness will require rejection of the claim." Id. at 1044.
With respect to a plea offer, counsel has a duty to communicate and explain the advantages and disadvantages to his client. Commonwealth v. Marinez, 777 A.2d 1121, 1124 (Pa. Super. 2001). "Failure to do so may be considered ineffectiveness of counsel if the defendant is sentenced to a longer prison term than the term he would have accepted under the plea bargain." Id. To obtain relief, a petitioner must show that ineffective assistance of counsel caused him to reject the plea. Commonwealth v. Steckley, 128 A.3d 826, 832 (Pa. Super. 2015).
Instantly, Attorney Gingrich testified that the trial court scheduled jury selection for May 2017. N.T., 10/5/20, at 43. On April 11, 2017, the Commonwealth tendered a plea offer with an expiration date of April 25, 2017. Id. at 25. By correspondence dated April 17, 2017, Attorney Gingrich communicated the plea offer to Appellant. Id. at 26. According to Attorney Gingrich, when jury selection was cancelled, the District Attorney verbally confirmed that the plea offer was still available. Id. at 30. Attorney Gingrich relayed this information to Appellant. Id. at 55. The plea offer was available until the start of trial. Id. at 47. Attorney Gingrich stated, "I can't recall [Appellant] saying I want that plea." Id. at 48.
The PCRA court subsequently determined:
[Appellant] received notice of the plea offer on April 1[7], 2017, as indicated by a letter sent by counsel. The plea offer was extended to counsel on April 11, 2017. Originally, the plea offer was set to expire on April 25, 2017[;] however, testimony provided by counsel was that the offer was again presented the day of his trial and [Appellant] did not accept. Therefore, the plea offer was extended past its original expiration and [Appellant] was fully aware of the plea offer when he denied [sic] to accept[.]
PCRA Court Opinion, 1/4/21, at 4. Accordingly, the PCRA credited Attorney Gingrich's testimony in finding Attorney Gingrich communicated the plea offer to Appellant before it expired. We may not disturb the PCRA court's credibility determinations. See Commonwealth v. Campbell, 260 A.3d 272, 277 (Pa. Super. 2021) ("The PCRA court's credibility determinations, when supported by the record, are binding on this Court[.]"). Appellant's first issue does not merit relief. See Sandusky, 203 A.3d at 1043.
In his second issue, Appellant claims the trial court erred by not addressing his motion to waive counsel until the day of trial. Appellant's Brief at 17. Appellant asserts, the court "ignored the fact that [Appellant] had complained about the lack of communication with his attorney at least eight weeks prior to filing his motion, which was filed two weeks before trial." Id. Appellant maintains the court erred in assuming counsel had properly communicated with Appellant and prepared for trial. Id. at 18-19. Appellant further challenges the trial court's characterization of the motion as "untimely filed," based on the court delaying consideration of the motion until the day of trial. Id. at 21.
For a claim to be cognizable under the PCRA, a petitioner must plead and prove "the allegation of error has not been previously litigated or waived." 42 Pa.C.S.A. § 9543(a)(3). "[A]n issue is waived if the petitioner could have raised it but failed to do so before trial, at trial, during unitary review, on appeal or in a prior state postconviction proceeding." Id. § 9544(b).
Our review discloses Appellant waived his challenge to the trial court's ruling by not raising it on direct appeal. See Rivest, 209 A.3d at *5 (Appellant challenged the grading of his DUI and the sufficiency of evidence underlying his convictions). Thus, his claim is not cognizable under the PCRA and his request for relief fails. See 42 Pa.C.S.A. §§ 9543(a)(3), 9544(b); Commonwealth v. Smith, 17 A.3d 873, 886 (Pa. 2011) (citing 42 Pa.C.S.A. § 9544(b) and determining claim was not cognizable because appellant failed to challenge the trial court's ruling on direct appeal).
In his PCRA petition, Appellant did not claim ineffective assistance of direct appeal counsel for failing to raise this claim.
Finally, Appellant argues Attorney Gingrich was ineffective for failing to act when two jurors fell asleep during trial testimony. Appellant's Brief at 22. Appellant asserts he advised counsel of the situation, but counsel "did nothing." Id. at 23. Appellant posits,
[g]iven the importance of the jurors' attention to the evidence, … [Appellant's] attorney should have brought the issue to the trial court's attention. The judge then could have convened a short recess to determine whether or not the jurors had actually been able to follow the trial, or if the jury required rest.Id.
Attorney Gingrich testified otherwise. He stated he did not observe jurors sleeping during trial:
At some point [Appellant] may have mentioned [the jurors], but I guess when I looked over, I didn't see any reason to raise it to the [trial c]ourt because I didn't see any problem.
…
At the times I looked at [the jurors] I didn't see that. And whether [Appellant] said something about it, he may have. I can't remember the exact form of that. I just didn't see anything that I felt I needed to bring to the [trial c]ourt's attention.N.T., 10/5/20, at 40-41.
The PCRA court subsequently explained:
The [PCRA c]ourt did not find credible that [Appellant] had alerted counsel to two (2) sleeping jurors and counsel did nothing. Counsel testified that he never noticed any jury member fall asleep and that he was never made aware of any asleep jury member. The [c]ourt finds no arguable merit to [Appellant's] argument ...PCRA Court Opinion, 10/4/21, at 6.
"We will not disturb the findings of the PCRA court if they are supported by the record[.]" Commonwealth v. Williams, 168 A.3d 97, 99 (Pa. 2017) (citation omitted). Because the PCRA court's findings are supported by the record, Appellant's ineffectiveness claim fails. See id.; see also Montalvo, 205 A.3d at 286 (recognizing that failure to satisfy any prong of the ineffectiveness test requires rejection of the claim).
Even if Attorney Gingrich had confirmed the sleeping jurors, Appellant would not be entitled to relief. In Commonwealth v. Lawson, 762 A.2d 753 (Pa. Super. 2000), we explained, "Even if a juror slept through portions of the trial ... appellant did not demonstrate that, but for the sleeping juror, the outcome of the trial would have been different." Id. at 757. Here, even if the jurors were sleeping, Appellant failed to demonstrate that the outcome of his trial would have been different. Because Appellant did not establish prejudice, his claim would fail. Sandusky, 203 A.3d at 1043.
Order affirmed.
Judgment Entered. --------- Notes: [*] Retired Senior Judge assigned to the Superior Court.