Superior Court says Commonwealth v. Carrasquillo does not mean it is nearly impossible to withdraw a guilty plea before sentencing, and provides a potential road map for successful motions to withdraw

Commonwealth v Islas, 2017 PA Super 43 (2/24/17)

Two and a half years ago the Pennsylvania Supreme Court, in Commonwealth v. Carrasquillo, 115 A.3d 1284 (Pa. 2015) seemed to make it impossible to withdraw a guilty plea before sentencing unless it was supported by  a credible claim of innocence,. The Superior Court, in a decision that must be read by anyone drafting a pre-sentence motion to withdraw guilty plea or litigating a PCRA motion about failure to file one, has pared that interpretation of Carrasquillo. The case provides a road map for anyone filing a pre-sentence motion to withdraw a guilty plea

Ms. Islas pled guilty in return for the dropping of some charges and sentencing was deferred. Guilty plea counsel withdrew and new counsel entered an appearance and filed a motion to withdraw guilty plea, based on claimed innocence, six weeks before the scheduled sentencing.   At the hearing on the motion, Ms. Islas stated he did not commit the crime, if he had there would have been witnesses, the victim had a motive to fabricate the charges, there was a delay in reporting the first criminal episode, he had never been accused of similar acts and he had a clean record. He also stated prior counsel did not tell him he could call character witnesses, and other available defenses. The sentencing court denied the motion, in part because of prejudice to the Commonwealth— something the Commonwealth did not present evidence on at the hearing on the motion— and sentenced him.

The Superior Court opined that courts have overreacted to Carrasquillo. It delved into the facts of Carrasquillo, indicating how unusual they were, including the fact that the defendant therein had made “bizarre” claims of innocence and only sought to withdraw his plea after all the sentencing evidence had been received and sentence was about to be pronounced. Mr. Islas, however, had made a detailed claim of innocence and proffered a good explanation about why he changed his mind about pleading guilty. The lower court also erred in finding prejudice to the Commonwealth when no supporting evidence or claim was presented at the time the motion to withdraw was tendered. The opinion tightens and clarifies what the Commonwealth must prove to show that it was prejudiced by having to bring the case to trial after the tendering and acceptance of the plea, i.e., in a worse situation trying to prove a case than it would have been if the case had already been tried. The panel opinion further stated, “That Islas’ claim of innocence may fail at trial is not a valid ground for denying his motion.”

The Court concluded the sentencing court erred in denying the motion to withdraw guilty plea. This is an important case for anyone contemplating filing a pre-sentence motion to withdraw guilty plea or litigating a failure to file one in a PCRA proceeding.

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Pa. Supreme Court remands capital PCRA case for failure to hold evidentiary hearing on disputed factual issues/ requirement for affidavit from trial counsel to be attached to amended PCRA petition explaining reason for course of action/ failure to cross-examine eyewitness on prior failure to identify the defendant

Commonwealth v Cousar,  ____ A.3d ____, No. 704 CAP (Pa. 2/22/2017)

Mr. Cousar was tried, convicted and sentenced to death for two homicides and a robbery that occurred on three separate days within one month.  Following affirmance of his convictions he filed for PCRA relief. The parties and the PCRA court agreed he was entitled to a new penalty hearing, but the court dismissed the guilt phase claims without a hearing. The Supreme Court reversed and remanded for a hearing on two of the several issues he raised concerning trial counsel’s ineffectiveness.

The first issue he prevailed on was his counsel’s failure to impeach a police firearms expert who testified the guns used in one of the homicides and the robbery were the same, which was the basis for the consolidation of the homicide charges with the robbery charge. A ballistics report from a police firearms expert stated the guns were not the same, but at trial, another firearms expert testified that they were. Counsel had some idea the issue would arise because of the consolidation motion, although he did not know, nor ever raise, the report contradicting the Commonwealth’s claim that the same gun was used in one of the homicides and the robbery. At trial, he did not cross-examine the police ballistics expert or in any other way raise the contradictory report. The Court considered whether the issue was waived for failure to submit an affidavit from counsel as to why he chose not to raise the contradictory report, stating:

Particularly when PCRA claims require examination of trial strategy, it is not enough to take a cold record, state alternative choices counsel could have made, and then declare an entitlement to relief. Id. Mere conclusory allegations, without some proffer as to what counsel would say in response to the allegations are insufficient to establish entitlement to relief. Id. Thus a supporting document from counsel stating his reasons for the course chosen is generally necessary to establish potential entitlement to a hearing. Id. See, e.g., Pa.R.Crim.P. 902(A)(12)(b) [[1]] (PCRA petition shall contain facts supporting each ground for relief; if supporting facts do not appear of record “affidavits, documents and other evidence showing such facts” to be identified).

The Court however accepted PCRA counsel’s explanation that he received an “affidavit” from opposing counsel that stated he would testify, but not what he would say. The effort to obtain one and the response he got were enough to excuse the omission. The Court found the failure to bring up the conflicting report to have arguable merit, and remanded for a hearing on the issue.

The other issue remanded for a hearing concerned counsel’s failure to cross-examine a Commonwealth witness’ identification of Mr. Cousar at trial with her failure to do so at the preliminary hearing. An otherwise vigorous cross-examination of her, absent some explanation by counsel should have included that prior failure. On remand, a  hearing is required on this issue too.

The Court dismissed several remaining issues Mr. Cousar raised.

Statement to police during plea negotiations was inadmissible, but admission was nevertheless harmless.

[[1]] [The rule reads:

(A)  A petition for post-conviction collateral relief shall bear the caption, number, and court term of the case or cases in which relief is requested and shall contain substantially the following information:

(12)  the facts supporting each such ground that:

(a)   appear in the record, and the place in the record where they appear; and

(b)   do not appear in the record, and an identification of any affidavits, documents, and other evidence showing such facts;]


Statement to police during plea negotiations was inadmissible, but admission was nevertheless harmless

Commonwealth v Burno, ___ A.3d ___, No 716 CPA (Pa. 2/22/17)

Mr. Burno appealed his conviction for homicide and death penalty, and both were affirmed by the Supreme Court. This case has a long procedural history, having made two visits to the appellate courts before the merits of his direct appeal were considered in this opinion.

Of note is the discussion of the applicability of Pa.R.Crim.Pro 410 barring admission of plea discussions.  Mr. Burno and his lawyer wanted to cooperate against his codefendant, and as a consequence they met with the prosecutor and two detectives. This led to an agreement that in return for a truthful statement, guilty plea, and truthful testimony against the co-defendant, he would not receive the death penalty. The Commonwealth though did not believe the statement, denying that he participated in the murders, and demanded a polygraph. He took it a few days later, his attorney not attending, and was told he was lying. He broke down, apologized, and was told by the prosecutor f he was truthful he might get a second chance. He then confessed, and with his attorney finally present encouraging him to talk, described how the murders occurred. On the day before his co-defendant’s preliminary hearing however, he said he did not want to testify and would take his chances at trial. The Commonwealth then sought to introduce the post-polygraph statements, made in the attorney’s presence, at trial. The trial court refused to exclude them.

Because these statements were made during the course of active negotiations, they should not have been admitted at trial. “There is no question that the Commonwealth was participating in plea discussions with Burno at the time that he confessed. This is the relevant inquiry. . .” Nevertheless, the error was deemed harmless in light of all of the other evidence adduced at trial, including several admissions in recorded jailhouse recordings.

SCOTUS finds death penalty counsel ineffective for introducing evidence that his client was more likely to commit crimes due to race/ Supreme Court rejects state’s and lower courts’ findings of procedural default/ Discussion of standards for granting a Certificate of Appelability

Buck v. Davis, No 15-8049 (2/22/2017)

The Supreme Court, in case where ostensibly the most important issue was one of procedural default and COA guidelines under the AEDPA (you will know these terms if you practice federal habeas corpus law, and if not, they are not of immediate concern), ruled on the merits that an attorney who, during the death penalty phase of a murder trial, introduced the testimony of a psychologist that blacks are more likely to commit crimes than others, and therefore there was an increased probability the black defendant would commit more crime was ineffective— “counsel’s performance fell outside the bounds of competent representation.”  Lesson— court appointed counsel should not feel compelled to present expert testimony the court paid for if it does not help his client.

The Court’s discussion of the waiver issue was interesting, given the difficulty in Pennsylvania of raising claims in a PCRA petition barred by the time limits of 42 Pa.C.S. §9545. While Pennsylvania does have an “attorney abandonment” doctrine that tolls the time to file a petition in some cases, as a practical matter it is difficult to get around the time bar just because an attorney did not communicate with a client about. Federal law on exception to the time bar is facially, and as a practical matter, narrowly more expansive than Pennsylvania’s. However, the discussion might fit the facts of, and prove useful for, some PCRA cases where a client relied on the implicit promise that his attorney would tell him what was going on to get around a time bar.

The case is also a must read for anyone denied a COA in a federal habeas matter who seeks authority to appeal form a Court of Appeals. The facts are pretty unique though, and will not open any floodgates.

N.D.Ill. U.S. District Court refuses authority for warrant to compel device owner to provide fingerprint ID for access to Apple devices, discussing the privacy and self-incrimination issues the request raised

In re: Application for Search Warrant, No. 17M801 (PACER dkt no. 1:17-mc-00081) (February 16, 2017)

A federal magistrate judge, David M. Weisman, in Illinois issued an opinion that, while approving the seizure of several devices, including an iPad or iPhone, denied the government’s request to compel their owner to supply his fingerprint in order to open them. The Court was troubled by the warrant’s use of what it termed “dated” boilerplate” language (anyone familiar with that?) that failed to discuss subjects like wireless internet service and careless encryption practices, leaving open the possibility that the activity that supported the request for the warrant did not rule out that someone other than the owner of the premises to be searched was using the internet services for illegal means, such as downloading child pornography. The warrant also lacked detailed information about other persons who might be living in the premises other than the subject of the search, the type of internet accessible hardware available at the premises, nor a comprehensive list of files the government expected to find— it did not even explain why the government expected to find Apple devices there. For these reasons, the government had not shown probable cause to compel any particular person to provide his or her fingerprint to open the devices. The court was not concerned with the privacy interests one has in a fingerprint— it found none—  but rather the showing necessary to make a particular person provide the fingerprint.  It also discussed the self-incrimination aspects of the government’s requests, finding that there are times that providing could be deemed testimonial. The case contains an excellent discussion of the Fourth and Fifth Amendment implications of compelling persons to open electronic devices with data gleaned from their bodies.

Image from osxdaily.

“Other lawful purpose” defense to possession of weapon on school property encompasses uses of weapon not related to school activities

Commonwealth v Andrew Goslin, 2017 PA Super 38 (February 16, 2017)

Mr. Goslin, after a hard day of work as a carpenter, arrived at his son’s school to discuss his suspension. In his pocket was a 3-4” pocketknife he used for work, whittling, sharpening pencils, and opening cans of tuna. During the meeting he removed the knife from his pocket and “forcefully” placed it on a table and asked if he would be arrested. Eventually, he was. He was charged with violating possession of a weapon on school property, 18 Pa.C.S §912, and convicted. (Terroristic threats charges were also filed, but dismissed.)

The trial court rejected Mr. Goslin’s proffered defense under 912(c) that he possessed the weapon for “other lawful purposes,” ruling that the phrase “lawful supervised school activity”, listed in §912(c) in the disjunctive, modified the “other lawful purposes” language, and as such restricted such “activities” to school activities. The Superior Court did not discern such a limitation, and vacated the conviction and remanded for a new trial.

image of weapons seized from U.K. school from Manchester Evening News.

Professor James Strazzella

Professor Strazzella, known to everyone who attended Temple Law school since 1973, passed away on January 28, 2017. He was a great inspiration to me. I took every class he offered, my favorite being a small class on post-trial remedies that provided the foundation of my career. Temple’s announcement can be found here. He was a credit to the professions of law and teaching, and an incredibly decent man. It is the profession’s loss that he will not be around to teach another decade or so of students how to practice criminal law, and how to be good, ethical, and concerned lawyers.

PCRA counsel cannot litigate a pro se petition: counsel must either file an amended petition or a Turner/Finley motion

Commonwealth v. Lamont Cherry, 2017 PA Super 28 (2/6/2017)

After his murder conviction was affirmed, Mr. Cherry filed a PCRA petition alleging sundry infractions by prior counsel. New counsel was appointed, who neither filed a counseled, amended petition nor a Turner/Finley (see Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc)) petition to withdraw.  A hearing was scheduled and, with the Defendant’s assent secured by a colloquy during which Mr, Cherry uttered but 6 words, the matter was submitted on the pleadings. Mr. Cherry’s petition was then dismissed. He appealed, and new counsel was appointed to represent him, who filed a Turner/Finley petition. Private counsel then entered her appearance on the Defendant’s behalf, raising, inter alia, his right to a remand because prior counsel had not done their jobs. The Superior Court vacated the judgment and remanded for new PCRA proceedings.

The Court stated, “When appointed, counsel’s duty is to either (1) amend the petitioner’s pro se Petition and present the petitioner’s claims in acceptable legal terms, or (2) certify that the claims lack merit by complying with the mandates of Turner/Finley. ‘If appointed counsel fails to take either of these steps, our courts have not hesitated to find that the petition was effectively uncounseled.’” (Citations omitted.) This is as clear a statement the Superior Court has made regarding the obligations of PCRA counsel.

Superior Court applies Birchfield to pre-Birchfield conviction sua sponte

Superior Court applies Birchfield to pre-Birchfield conviction sua sponte, i.e. without it being raised below

Commonwealth of Pennsylvania v. Giron, 2017 PA Super 23 (January 31, 2017)

Mr. Giron was convicted on DUI on April 15, 2016 of second offense DUI-general impairment (with refusal), careless driving, driving without a license, and fleeing the scene of an accident. On April 15, 2016, and sentenced to  90 days to 5 years’ imprisonment on the second offense DUI-general impairment (with refusal) charge. The refusal charge was based on the trial court’s finding that Mr. Giron, when requested and warned of penalties under the law, refused to supply a blood sample.  His challenge to the sufficiency of the evidence was found waived, and to the weight of the evidence waived.[1]

Birchfield v. North Dakota, 136 S.Ct. 2160 (2016) (police cannot compel a driver to provide a blood sample without first obtaining a search warrant except in certain limited circumstances) was decided after this case was decided. The Defendant did not raise it on appeal, but at oral argument the parties directed them to address it. The Superior Court raised the issue sua sponte, citing  Commonwealth v. Mosley, 114 A.3d 1072 (Pa. Super, 2015) where it did something similar with a case with Alleyne issues. Finding Birchfield applied, the Superior Court vacated the sentence and remanded for resentencing.

This case is significant for two reasons. First, it flies in the face of another decision last week in Commonwealth v. March, 2017 PA Super 18, where the neither Superior Court nor parties raised the issue at all. Second, it shows that it is not too late to raise this issue if you have a case of direct appeal involving a pre-Birchfield (and maybe a post-Birchfield) conviction and have not mentioned it till now.[2] For now, assume it is never too late to raise Birchfield. That is what another appellant successfully did in Commonwealth v Evans, 2016 PA Super 293, and he won.

[1] A weight of the evidence claim must be preserved either in a post-sentence motion, by a written motion before sentencing, or orally prior to sentencing. I can conceive of no circumstance where one is challenging the sufficiency of the evidence this issue is not at least preserved in the trial court, given the ease of doing so.

[2] Back in the day, when we got these decisions by way of advance sheets, there was a rule that the issue was not raised if you did not raise it six weeks after the decision, as there was no way you could have possibly known about it. Appellate court websites that publish decisions have removed this excuse, but as Commonwealth v. Mosley shows, the Superior Court will sometimes forgive counsel who does not raise a recently announced ruling. The Defendant in Commonwealth v. Mosley was tried after Alleyne was decided.