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HomeMy WebLinkAboutCP-21-CR-0002605-2009 (2) COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : RICKY L. MILLER, JR. : CP-21-CR-2605-2009 IN RE: PETITION FOR PCRA RELIEF OPINION AND ORDER OF COURT Masland, J., June 12, 2020:-- I. Prologue At times, the post-conviction relief process can cause us to lose sight of the events that brought us here. Let us not forget that on July 26, 2009, Ricky L. Miller, Jr. stuck his Glock pistol through his wife’s driver’s side window, past her face, and fired one round into the head of her boyfriend, Kenneth Geiger. Initially, the Commonwealth pursued this killing as a capital offense, but after three years of maneuvering, the parties agreed that Miller would enter a plea of guilty to “murder generally” and proceed to a degree-of-guilt hearing before a judge. This plea removed the possibility of a sentence of death and left the court with three options: the defendant could be found guilty of murder in the first degree, murder in the third degree, or voluntary manslaughter. After a three-day hearing in August 2012, the undersigned found Miller guilty of first degree murder. Miller now contends that his plea of guilty to “murder generally” was unknowing and defective. At the heart of the dispute are the nature and ramifications of the parties’ agreement to proceed with a hearing before a judge CP-21-CR-2605-2009 as opposed to a jury trial. The events that led to the killing have been fully 1 recounted in previous opinions. In addressing Miller’s contentions, we will provide a portion of the facts for context; however, before even that, we must make some observations from 1,000 feet, which is as lofty a perch as this trial judge can manage. This opinion will be appealed, and eventually, though not ineluctably, Miller may be afforded a modicum of satisfaction. He may even get the jury trial that he assiduously avoided. And, as plain as it was to us, a different factfinder may render a different result. Indeed, the Commonwealth may not be able to meet its burden a second time and, perhaps, a verdict of second degree murder or even voluntary manslaughter will be rendered? No matter how the legal saga concludes, the personal saga will endure – for both the Geiger and the Miller families. Legal skirmishes cannot divine the answers to the ultimate questions that lie at the heart of this story: Humans are caught – in their lives, in their thoughts, in their hungers and ambitions, in their avarice and cruelty, and in their kindness and generosity too – in a net of good and evil. I think this is the only story we have and that it occurs on all levels of feeling and intelligence. Virtue and vice are warp and woof of our first consciousness and they will be the fabric of our last, and this despite any changes we may impose on field and river and mountain, on economy and manners. There is no other story. A man, after he has brushed off the dust and chips of 1 In Re: Opinion Pursuant to Pennsylvania Rule of Appellate Procedure 1925, February 12, 2013, at 2-9. See also, Comm. v. Ricky L. Miller, Jr., No. 1571 MDA 2012 (Pa. Super.), at 2-6. -2- CP-21-CR-2605-2009 life, will have left only the hard, clean questions: Was 2 it good or was it evil? Have I done well – or ill? II. Procedural Background At the guilty plea hearing on July 19, 2012, following the Commonwealth’s presentation of the salient facts and the possible penalties for murder in the first degree, murder in the second degree, and voluntary manslaughter, we began our colloquy with the following: THE COURT: Mr. Miller, you’ve heard the statements the District Attorney has made regarding what happened on the date in question. Before we proceed with your plea, it’s important for me to ensure that you thoroughly understand the purpose, nature, and consequences of that plea and of your rights. First of all, it’s my understanding, as stated by counsel, that you intend to enter a plea of guilty to murder generally. This means that you will admit that you committed the act that caused the death of Kenneth Geiger on July 26, 2009, and the act was some form of criminal homicide. I will then hold a hearing and determine what degree of murder or manslaughter you have committed. Is that what you wish to do? 3 THE DEFENDANT: Yes, Your Honor. At the conclusion of this lengthy colloquy, we were satisfied that Miller’s plea of guilty to the charge of murder generally was knowing, voluntary, and intelligent. We then accepted the plea and scheduled a degree-of-guilt hearing for August 1, 2012. After a three-day hearing, we found Miller guilty of first degree murder on August 3, 2012. In short, this killing was the end product of 2 John Steinbeck, East of Eden, (Penguin Books 2016), p. 411. 3 In Re: Defendant Pleads Guilty, July 19, 2012, at 6. -3- CP-21-CR-2605-2009 the breakdown of Miller’s marriage with his now ex-wife, Ashley Murray (Murray). Murray had rekindled a relationship with Geiger, an old boyfriend, and moved to Cumberland County from the marital home in Lancaster, bringing their three young children. In the weeks leading up to the murder, Miller engaged in a purposeful, threatening, and confrontational course of conduct towards Murray and Geiger, which culminated on July 26, 2009 when Miller walked up to the vehicle driven by Murray, reached past her and shot Geiger in the head. Miller then turned to Murray and exclaimed, “I told you never to f--k with me you f----n 4 bitch.” Only a deliberate disregard for the facts and the law would have spared Miller from our finding of guilt and the consequent imposition of a sentence of life in prison without possibility of parole. The second phase of the saga, the direct appeals, ended on September 18, 2014, when our Supreme Court denied Miller’s petition for allowance of appeal with a per curiam order. Essentially, this phase had concluded on February 19, 2014 with the Superior Court’s memorandum opinion that affirmed 5 our findings. In his appeal, Miller challenged the sufficiency of the evidence and the constitutionality of the death penalty. The Superior Court found that Miller had waived the latter argument and, with respect to sufficiency, the record contained “overwhelming evidence” to support a finding that Miller was guilty of 6 first degree murder. 4 In Re: Degree of Guilt Hearing, August 1, 2012, Volume I at 68-69. 5 Comm. v. Ricky L. Miller, Jr., No. 1571 MDA 2012. 6 Id. at 22. -4- CP-21-CR-2605-2009 The third phase of this legal saga began on September 17, 2015 when Miller filed a self-represented petition for post-conviction relief (PCRA). Following 7 the appointment of counsel, this matter proceeded sluggishly. After nine motions for extension, somewhat understandable under the circumstances, an amended petition was filed on February 17, 2017, and a hearing was scheduled for May 11, 2017. The Commonwealth filed an answer on May 1, 2017, requesting dismissal of the petition. That was denied by our order of May 2, 2017 because, in large measure, with Miller having been delivered to Cumberland County Prison from his residence in a state institution, we decided it would be best to proceed. Nevertheless, at the time of the hearing Miller requested a continuance so that he could file a petition for leave to amend the PCRA petition. We granted his request. Ultimately, on June 20, 2017, with the concurrence of the parties, Miller was authorized to file a supplemental petition, with the Commonwealth having thirty days to file a response. The petition was filed on June 27, 2017, with the Commonwealth responding on July 21, 2017. On August 3, 2017 we scheduled a hearing for October 25, 2017. At the close of the hearing, at the request of defense counsel, we kept the record open to determine if it should be supplemented with testimony from an expert witness. After more delays, again largely understandable, we entered an order on July 16, 2018 formally closing the record and granting Miller ninety days from that date to file a brief in support of the petition. After several petitions to 7 Nor, have we proceeded with alacrity with this opinion. Most of the reasons have no bearing on the issues before us, other than our desire to get it right. Although Miller has no hope for release in the near future, we acknowledge that, with little else to think about, our delay may have heightened his anxiety. For that, we apologize. -5- CP-21-CR-2605-2009 extend the time for filing, Miller’s brief was filed on May 23, 2019. Technically, since receiving the Commonwealth’s brief on July 22, 2019, this case was ripe for an opinion. III. Discussion All of Miller’s arguments rely, in essence, on his assertion that he entered his plea on the basis of a faulty understanding of the situation. That assertion is fundamentally untrue, especially in light of the credible testimony of Miller’s trial counsel. We concede that, on the surface, Miller has an argument that the colloquy was defective. However, even if it was, a point we do not concede, that does not void his plea, since the alleged defect was entirely immaterial to Miller’s decision to enter that plea. Similarly, Miller’s constitutional argument is meritless, given binding Supreme Court precedent to the contrary. Decidedly, Miller’s counsel was not ineffective, because, among other reasons, none of the alleged errors or omissions changed the outcome to his disadvantage. Finally, we suggest that Miller waived several of the aforementioned issues by failing to raise them on appeal. Nevertheless, we will address them below. A. Defective Colloquy Before accepting a plea of guilty to murder generally, a judge must 8 determine that the plea was entered voluntarily and understandingly. The comment to the rule in question provides that, in order to accomplish this, a judge should inquire into at least seven specific issues during his colloquy with the defendant, including the issue of whether the defendant understands that the 8 Pa.R.Crim.P. 590(A)(3). -6- CP-21-CR-2605-2009 Commonwealth may elect to have a jury sit as trier-of-fact in the subsequent 910 degree hearing. The seventh area of inquiry was added in 2008. Miller’s arguments assume that the court was unaware of the Commonwealth’s right, and 11 we will address the issue as if that were the case. Early interpretations of the prior iteration of the comment, which was substantively the same but for the absence of the seventh requirement, held that 12 “failure to satisfy these minimal requirements will result in reversal.” However, courts soon abandoned this rigorous approach in favor of a more flexible totality of the circumstances test, whereby a defective colloquy is not fatal provided that the missing information is presented to the defendant in some other way, such as 13 during the prosecution’s case-in-chief. As a consequence of that line of cases, it is now clear that none of the required disclosures must be made in the 9 Pa.R.Crim.P. 590, Comment. 10 Id. 11 On May 29, 2012, in preparation for a conference on the logistics of a degree-of-guilt hearing with then ADA, now MDJ, Jonathan Birbeck, defense trial counsel Heidi F. Eakin, Esquire and the defense sentencing-phase counsel, Linda Hollinger, Esquire, I read Rule 590(C) for the first time. After doing so, I wrote the following note: “Rule 590(C) … after a plea to murder ‘generally’ … by a jury unless … Comm elects to have the judge.” In short, I was aware of the Commonwealth’s ability to elect. Of course, the reason for the conference was that an agreement had been reached that the parties would not proceed with a jury and that I would hold the hearing. Because the PCRA stage is ripe for re-imagining and pretense, we can proceed as if I did not know of the Commonwealth’s right. There are two reasons for doing so. First, because my notes are never part of the record, the appellate courts must proceed without that benefit. Second, and more importantly, Miller’s arguments fail to demonstrate the colloquy was defective under any circumstance. 12 Commonwealth v. Dilbeck, 353 A.2d 824 (Pa. 1976) (emphasis added). 13 “\[A\] guilty plea is not automatically suspect simply because the plea colloquy failed to cover one of the specific areas of inquiry recommended in the comments to Rule 590. Rather, a court should consider whether the totality of the circumstances surrounding the plea establish that it was entered knowingly and voluntarily.” Commonwealth v. Flanagan, 854 A.2d 489, 515 (Pa. 2004). See the immediately preceding language for discussion of the historical evolution of the rule. -7- CP-21-CR-2605-2009 colloquy, even if that remains the ordinary practice, provided they are made elsewhere. What is less clear, and is central to this case, is whether the seventh disclosure is actually required at all. The courts have offered precious little guidance on this question, with the bulk of the relevant case law being developed under the old comment, prior to the addition of the seventh disclosure. We have found exactly one reference, a brief footnote in a non-precedential Superior Court 14 case, suggesting, vaguely, that the seventh disclosure is mandatory. That said, it may seem unreasonable to assume that the Supreme Court intended the seventh disclosure to be discretionary when it added it to a list of disclosures that were understood to be mandatory at the time (albeit, by then, under a totality of the circumstances analysis, contra the older, liturgical approach). Of course, our courts have found, time and again, that despite the presumption in cases of statutory construction that the General Assembly would not intend an absurd result, such results occur. Likewise, some decisions from the judicial branch 15 have similar results. Assuming, arguendo, that the seventh disclosure, concerning the trier-of- fact in a degree hearing, is indeed mandatory, and that a plea may be defective where this issue was not disclosed at some point in the proceedings, what is the consequence? We say “may be defective” because an error of this kind is an 14 Commonwealth v. Weir, 2014 WL 10889898 (Pa. Super. 2014). Note 4 states that courts “must” inquire into all seven matters, while the Rule itself and all other known cases use the term “should.” 15 Having served in all three branches, I readily admit to not only observing, but also committing numerous legislative, executive and judicial errors. I suggest this case is an exception. -8- CP-21-CR-2605-2009 insufficient condition for the voiding of a plea. A defect in pre-plea disclosures to a defendant does not void a plea of guilty unless the defect was material to the 16 defendant’s decision to enter the plea. We do not find credible Miller’s recent, rather too convenient claim that he wanted a jury to sit as trier-of-fact in his degree hearing, given the evidence in the record to the contrary. Far more credible is the testimony of Miller’s trial counsel, Heidi F. Eakin, Esquire: Ricky had repeatedly expressed concerns about jury trials. … \[T\]he discussions about jury trial, and who was going to be in the courtroom, and his anxiety, was paramount on his mind at times. And understand, I saw him for over three years. I was probably at this prison at least once a month. And, I mean, when his behavior became erratic, and he got upset, it was clear. And that was one of those things that I don’t think I would even have said anything to him, because it would have been, it was get rid of that jury. … I can’t say that had I said well you can have a jury if you want, he would have said yes. I don’t believe that for 17 a minute. Although we might dismiss Miller’s claim outright, we will analyze the materiality of the alleged defect under two scenarios. We will begin with reality. Assuming that Miller did not want a jury hearing, as the record suggests, was the alleged defect material? We suggest not. The proverbial tree may have fallen in the woods with no one there to hear it, but that was because no one wanted to go into the woods. So, any “noise” is mere “sound and fury, signifying nothing.” 16 Commonwealth v. Barbosa, 819 A.2d 81, 82 (Pa. Super. 2003). 17 Supplemental PCRA Hearing, October 25, 2017, N.T. at 45-46. To clarify the transcript’s title, this was not a “supplemental” hearing. Rather, it was the only PCRA hearing, but was held regarding the Supplemental Petition. (hereafter, N.T. at __.) -9- CP-21-CR-2605-2009 The totality of the colloquy demonstrates that Miller’s rights were protected and that this is a non-issue. Nonetheless, Miller argues that his ignorance of the Commonwealth’s right to pursue a jury trial was in and of itself a defect. This is logically meritless because he had no desire for a jury trial and would not have made such a request in any event. Nevertheless, under the assumption that, improbably, Miller truly did desire a jury hearing, the alleged defect was still immaterial. Quite simply, as the Commonwealth contends, and nothing in the record contradicts, the Commonwealth would have refused any request for a jury hearing, leaving Miller with exactly the same choices that he actually had (i.e. risk the death penalty in a jury trial or plead guilty to murder generally and have a judge sit as trier-of-fact in his degree hearing). Given those alternatives, Miller would have made exactly the same choice that he actually made. Hence, any defect in the colloquy was immaterial to Miller’s decision to enter his plea of guilty to murder generally, and thus does not constitute grounds for withdrawal of the plea. In our charge to jurors on credibility of testimony, we always include the 18 simple phrase “Does it make sense?” So we ask, is it logical, when the parties have agreed to proceed with a bench trial, for the court to ask: “Do you understand that the Commonwealth could have asked for a jury even though they have agreed to proceed with a bench trial?” We think not and indulge in some brief hypothesizing. If there is any purpose for the seventh requirement it is to ensure, where there is no agreement to proceed with a bench hearing, that a defendant’s waiver of a jury by entering a plea is not done under the mistaken 18 Pa. SSJI (Crim) 4.17. -10- CP-21-CR-2605-2009 impression that the defendant has avoided a jury. As with many rules, it is intended to preclude a “gotcha” moment by the Commonwealth. And, that logic is the main reason for the dearth of case law on the seventh disclosure. In the absence of a bait and switch by the Commonwealth, a defendant has no reason to complain that he did not get a jury hearing, because, quite simply, it was not his right. Indeed, although he was reluctant to do so, even Miller had to concede 19 this point at the PCRA hearing. In sum, Miller had no desire for his case to be heard by a jury. He bargained for a bench trial to take the death penalty off the table, figuring he had a better shot with a judge at avoiding a life sentence. Having seen that effort fail, Miller seeks to blame his loss on a right he never had and never wanted. But, even if pre-pleading disclosures to Miller were materially defective, he waived this issue by failing to raise it in his appeal to the Superior Court. As our Superior Court noted in the direct appeal of this case, citing 42 Pa.C.S. § 9544(b), “For purposes of this subchapter, an 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 20 prior state post-conviction proceeding.” 42 Pa.C.S. § 9544(b). B. Constitutionality of Pa.R.Crim.P. 590(C) As discussed at length above, when a defendant pleads guilty to murder 21 generally, it is the Commonwealth’s election as to who sits as the trier-of-fact. 19 N.T. at 35. 20 Commonwealth v. Miller, 2014 WL 10980108 (Pa. Super. 2014). 21 Pa.R.Crim.P. 590(C). -11- CP-21-CR-2605-2009 In addition to claiming his plea was defective because no one informed him of this, Miller claims that Rule 590(C) violates provisions of both the United States and Pennsylvania Constitutions regarding a defendant’s right to trial by jury. Our Supreme Court has found otherwise. In short, a defendant would enjoy the right to have a jury sit as trier-of-fact in a degree hearing, but never enjoys such a right in practice, because, to have arrived at the stage of a degree hearing, a defendant must have already pleaded guilty, which pleading constitutes a waiver 22 of, inter alia, the right to trial by jury. Miller not only waived his right to a trial by jury, but also waived this issue when he failed to raise it on appeal per 42 Pa.C.S. 9544(b). Miller argues that the issue could not have been raised on appeal because the controlling federal case, Alleyne, was pending at that time, and so the issue was not waived. Once again, Miller is mistaken. Our Superior Court, in Fennel, held that Alleyne stands 23 for the same proposition as Apprendi and a number of other cases, all of which had already been decided by the time of Miller’s appeal. Miller could have challenged the constitutionality of the rule in question on the basis of those precedents, but failed to do so, and thereby waived the issue. C. Ineffective Assistance of Counsel In general, a claim of ineffective assistance of counsel requires a defendant to demonstrate (1) that it is reasonably probable that the error or 22 Commonwealth v. White, 910 A.2d 648 (Pa. 2006). 23 Commonwealth v. Fennel, 105 A.3d 13, 16 (Pa. Super. 2014). -12- CP-21-CR-2605-2009 omission by counsel changed the outcome to the disadvantage of the defendant, (2) that counsel lacked any reasonable strategic basis for the act or omission, and (3) that the defendant’s view as to what counsel should or should not have 24 done has arguable merit. Applying these principles, we find Miller’s several claims to be decidedly lacking. Miller claims that counsel was ineffective for failing to advise him of the possibility that he could have requested that Commonwealth exercise its right to seat a jury as trier-of-fact in his degree hearing. As discussed above, we find no reasonable probability that such advice would have changed the outcome. The parties had agreed to proceed with a hearing before a judge. We do not believe that Miller would have made such a request, nor that Commonwealth would have granted such a request had it been made. The only reason for the Commonwealth to proceed with a jury would be to pursue the death penalty as well. Miller claims that counsel was ineffective for failing to move to withdraw his plea on the basis of the allegedly defective colloquy. As discussed above, we find no merit in Miller’s claim that his plea was defective, and so we find no merit in Miller’s claim that his counsel was ineffective for failing to make a meritless motion, which would surely and properly have been denied in any event. Next, Miller argues that counsel was ineffective for failing to place in evidence Dr. Hume’s reports of Miller’s mental state and for failing to conduct 24 Commonwealth v. Kimball, 724 A.2d 326 (Pa. 1999). -13- CP-21-CR-2605-2009 and place in evidence an additional evaluation of the same, both to have been offered for the purpose of supporting a theory of provocation and/or imperfect self-defense. The record suggests that Dr. Hume’s reports contained information which might have been of some value in supporting one or both of those theories, but also highly inflammatory statements on the part of Miller which would have tended to undermine the same. Defense counsel testified as follows: \[S\]ome of \[the statements made by Miller\] are pretty not good for \[Miller\]. And that was one of the reasons that we didn’t give these reports over to the Commonwealth, because I didn’t want them to have the information that Ricky had painted in these reports. I mean, he was blasting the victim, he was blasting his wife, and that was a tactical decision I 25 made. We find this testimony credible. Counsel, in excluding this evidence, made a reasonable, strategic decision. Throughout the hearing, counsel made a valiant and concerted effort to paint her client as the true victim, the wronged spouse. At best, Dr. Hume’s evaluation would have been cumulative of other lay testimony presented of Miller’s generally agitated state of mind in the days preceding the murder. “Expert” testimony on this matter was unnecessary and offering such evidence would not have changed the outcome for Miller. At worst, Dr. Hume’s testimony and reports would have been damning, as feared by counsel: No. I mean, the problem that I had with Dr. Hume, again, his reports were the statements that Ricky was making to him. Some of them are pretty not good for him. And that was one of the reasons that we didn’t give these reports over to the Commonwealth, 25 Supplemental PCRA Hearing, October 25, 2017, N.T. at 56-57. -14- CP-21-CR-2605-2009 because I didn’t want them to have the information that Ricky had painted in these reports. I mean, he was blasting the victim, he was blasting his wife, and 26 that was a tactical decision I made. Miller’s final argument on ineffectiveness is that counsel failed to petition the court for a return of property previously belonging to Miller that had been seized following his arrest. Although the $4,700 that Miller stashed in his brief case before killing Geiger was likely “getaway” cash, this matter is entirely unrelated to Miller’s criminal conviction. A finding of ineffectiveness of counsel in this respect would have no effect on that conviction and is not litigable in this PCRA proceeding. It is an understatement to say that Miller failed to overcome the axiomatic 27 presumption that counsel was effective. To the contrary, counsel was diligent, zealous and passionate in her advocacy. The failure to persuade this factfinder falls squarely at the feet of Miller – his actions, his words, his story. IV. Conclusion We did not answer the question of good and evil for Miller on August 3, 2012, nor will we now. Although this case is about Ricky Miller killing Kenny Geiger, the spotlight on the PCRA stage is focused on the legal actors more than the facts. At the end of Miller’s degree of guilt hearing, we brushed off the dust and chips of this case and found him guilty of first degree murder. We made that finding without hesitation or restraint, with full appreciation of its gravity. For now, it has been deemed good. And, while this decision will not resolve matters finally 26 Id. 27 Commonwealth v. Elliott, 80 A.3d 414 (Pa. 2013). -15- CP-21-CR-2605-2009 either, we brush off the dust of this case one final time and, for the foregoing reasons, enter an order denying Miller’s PCRA petition in its entirety. ORDER OF COURT AND NOW, this day of June, 2020, following a hearing, briefing and thorough review of Defendant’s PCRA petition, it is DENIED in its entirety. By the Court, Albert H. Masland, J. Courtney E. Hair LaRue, Esquire District Attorney’s Office Nathan C. Wolf, Esquire For Petitioner -16- COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : RICKY L. MILLER, JR. : CP-21-CR-2605-2009 IN RE: PETITION FOR PCRA RELIEF ORDER OF COURT AND NOW, this day of June, 2020, following a hearing, briefing and thorough review of Defendant’s PCRA petition, it is DENIED in its entirety. By the Court, Albert H. Masland, J. Courtney E. Hair LaRue, Esquire District Attorney’s Office Nathan C. Wolf, Esquire For Petitioner