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HomeMy WebLinkAbout98-2195 criminalCOMMONWEALTH V, RONNIE JOHNSON · IN THE COURT OF COMMON PLEAS OF · CUMBERLAND COUNTY, PENNSYLVANIA · NO. 98-2195 CRIMINAL TERM · IN RE' OPINION PURSUANT TO PA RULE OF APPELLATE PROCEDURE 1925 Guido, J., February 11, 2000 On July 9, 1999, petitioner entered a plea of guilty to one count of first degree murder. He received a mandatory sentence of life imprisonment on that same date. On August 11, 1999, this Court received a letter from petitioner in which he requested the opportunity to withdraw his guilty plea and proceed to trial. Since the letter was received more than thirty days after imposition of sentence, and since he made certain allegations regarding the effectiveness of his counsel, we treated it as a petition under the Post Conviction Relief Act. (42 Pa.C.S.A. {}9541, et secO. We appointed new counsel to represent him and allowed sixty days to file an amended petition. On December 22, 1999, an evidentiary heating was held before this Court. At the conclusion of the hearing we denied petitioner's claims for relief. He filed this timely appeal. Pursuant to our request, petitioner has filed a statement of matters complained of on appeal in accordance with Pa. Rule of Appellate Procedure 1925(b). He alleges that his guilty plea was unlawfully induced and that it was not knowingly and intelligently entered. Therefore, he argues that we erred in refusing to allow him to withdraw the plea. 98-2195 CRIMINAL FACTUAL BACKGROUND Petitioner was charged with criminal homicide and various related charges arising out of a shooting that occurred in a crowded park on Memorial Day in 1998. The Commonwealth was seeking the death penalty. On JulY 9, 1999 the Commonwealth agreed to forego the death penalty in remm for a plea of guilty to first degree murder. The plea was in full satisfaction of all charges pending against petitioner.~ The factual basis for the plea was articulated by the District Attorney as follows' MR. EBERT: The factual basis for this plea will be as follows, sir. On May 25, 1998, shortly after 5:00 p.m., the Defendant, Ronnie Eugene Johnson, and his co-Defendant, Germane Watkins, entered Memorial Park in the Borough of Carlisle, Cumberland County, Pennsylvania. The Defendant and Watkins were looking for Robert "Rocky" Anderson to settle a dispute which had been ongoing over the Memorial Day weekend. The Defendant was in possession of a .22 caliber revolver and Watkins was in possession of a .380 caliber semi-automatic handgun. Watkins approached Rocky Anderson while Anderson was playing basketball. This Defendant took up a position behind Watkins from where this Defendant could see all that would transpire. An argument ensued between Watkins and Rocky Anderson. In the course of the argument, the Defendant and Watkins began to fire their respective weapons. A bystander, the victim in this case, Anthony Shannon Banks, was struck by a bullet and fell to the ground. While Banks was lying on the ground, the Defendant walked up to where Banks was lying and intentionally and with malice shot Banks several more times striking him in vital parts of his body including the back of his head. Shannon Banks died from the Defendant's multiple gunshot wounds specifically a .22 caliber bullet was removed from Anthony Shannon Banks' brain. Dr. Wayne Ross, an expert pathologist, determined that this wound was fatal. That would be the extent of the factual basis of the plea, sir. MR. GILROY: Your honor, I have reviewed that with my client. He has reviewed these facts, and we are satisfied after the extensive discovery that we have conducted in this particular case that the facts as ~ Guilty Plea and Sentence Colloquy, July 9, 1999 pp. 2-3. The Commonwealth also accepted the plea in full satisfaction of other charges that arose out of incidents that occurred during petitioner's incarceration on these charges. 98-2195 CRIMINAL presented by the Commonwealth are correct, and Mr. Johnson stands before you today prepared to admit those facts. MR. EBERT' One factor that I - - in regard to this plea, obviously - - it becomes patently obvious that the Commonwealth had filed a notice of aggravating circumstances in this case and was seeking the death penalty in this case. Obviously as a part of the plea, the negotiated plea, I will not be pursuing the death penalty even based on this plea. This is for a set sentence of life imprisonment pursuant to the statute. THE COURT' Now, sir, you understand that you will be entering a plea to murder in the first degree, and the factual basis of that plea is that you are charged with intentionally killing Mr. Banks, firing bullets into his body that caused his death. Do you understand that, sir? THE DEFENDANT: Yes. THE COURT: Are you prepared to admit that you did, in fact, intentionally cause the death of Mr. Banks? THE DEFENDANT: Yes. (emphasis added)2 Petitioner contends that he was induced to plead guilty as a result of bad advice allegedly given to him by his attorney. In the first instance, he alleges that his trial counsel assured him that he would be out of jail in twenty five years.3 He also alleges that his attorney told him that the fatal bullet came from his gun when, in fact, his ballistics expert would have testified that it did not.4 Petitioner's trial counsel had extensive experience handling capital murder cases. He denied telling petitioner that he would be out of prison in twenty five years. To the contrary, he specifically advised him on numerous occasions that a life prison sentence meant life without parole.6 He did admit to telling petitioner that their own ballistics Guilty Plea and Sentence Colloquy, July 9, 1999 pp. 4-7. PCRA Hearing Transcript, p. 5. PCRA Hearing Transcript, p. 11. See also Defendant's PCRA Hearing Exhibit 3. PCRA Hearing Transcript, pp. 28-29. PCRA Hearing Transcript, p. 31. See also Commonwealth's PCRA Hearing Exhibits 1, 2, 3. 98-2195 CRtM~AL expert was of the opinion that the fatal bullet came from his gun.7 However, we are satisfied that he correctly conveyed the expert's opinion to petitioner. Petitioner also claims that he did not fully understand what he was doing at the time he entered the guilty plea. Therefore, he asserts that his counsel was ineffective in allowing him to enter a plea that was not knowing and voluntary. DISCUSSION Petitioner bases his claims for relief upon Sections 9543(a)(2)(ii) and (iii) of the Post Conviction Relief Act. Those sections provide as follows' (a) General rule.-To be eligible for 'relief under this subchapter, the petitioner must plead and prove by a preponderance of the evidence all of the following: (2) That the conviction or sentence resulted from one or more of the following' (ii) Ineffective assistance of counsel which, in the circumstances of the particular case, so undermined the troth-determining process that no reliable adjudication of guilt or innocence could have taken place. (iii) A plea of guilty unlawfully induced where the circumstances make it likely that the inducement caused the petitioner to plead guilty and the petitioner is innocent. 42 Pa. C.S.A. § 9543(a)(2)(ii) and (iii). However, since he pled guilty, the troth determining process under Section 9543(a)(2)(ii) is not involved. See Commonwealth v, Young, 695 A.2d 414 (Pa. Super. 1997). The ineffectiveness claim dealing with the validity of the plea must be dealt with under Section 9543(a)(2)(iii). Id. To be eligible for relief under the Post Conviction Relief Act, petitioner must plead and prove that the plea was unlawfully induced or that ineffective assistance of 7 PCRA Hearing Transcript pp. 37-39. See also Commonwealth's PCRA Hearing Exhibit 4. 98-2195 CRIMINAL counsel caused an involuntary or unknowing plea. Commonwealth v, Yager, 454 Pa. Super. 428, 685 A.2d 1000 (1996). The burden is upon the petitioner to prove by a preponderance of the evidence that the ineffective assistance of counsel caused an involuntary and unknowing plea. Commonwealth v, Mendoza., 730 A.2d 503 (Pa. Super. 1999). In the instant case, we are satisfied that the plea was not unlawfully induced. We are also satisfied that counsel was effective and that the plea was voluntarily, knowingly and intelligently entered. Advice Regarding Sentence. If petitioner's counsel misled him with regard to his sentence, he would be entitled to relief. Commonwealth v. Sheherko, 432 Pa. Super. 610, 639 A.2d 810 (1994). However, we find as a fact that petitioner was well aware that he would spend the rest of his life in prison if he entered the guilty plea. His counsel advised him of this fact numerous times prior to the entry of the plea. He was also advised of the mandatory life sentence several times during the guilty plea colloquy.~ During the same colloquy, he was told on at least two occasions that there was no possibility of parole.9 We simply do not believe that petitioner had any misconception as to the sentence he would receive at the time his plea was entered. Advice Regarding Fatal Bullet. Clearly, petitioner's plea was based in large part upon counsel's advice that their own expert was of the opinion that the fatal bullet came from his gun. Petitioner was 8 Guilty Plea and Sentence Colloquy, pp. 3, 5, 7, 9. 9 Guilty Plea and Sentence Colloquy, pp. 7, 9. 98-2195 CRIM~AL advised of this fact by letter dated June 28, 1999.l° The letter provided, in relevant part, as follows' Our ballistics expert will not be beneficial to us at thai. It is his opinion that the bullet taken from Mr. Banks' brain is a .22-caliber bullet. Our review of the x-rays supports our conclusion in that the bullet in the brain was deformed in such a manner as it appears to match with the 22-caliber bullet which the police say was taken from the brain. We had hoped that our ballistics expert wOuld be able to testify that the bullet from Mr. Banks' brain, which caused his death, was a 380 caliber bullet. If we were able to assert that claim, it would give us a good argument to suggest that you may be guilty of something less than first- degree murder. The lack of a ballistics expert supporting us significantly undermines our ability to advance to the jury an alternative theory as to how the actual killing of Mr. Banks occurred. The facts of the killing also weigh against us heavily in connection with the first-degree murder conviction. In order to obtain a first-degree murder, the Commonwealth must prove "malice". In light of the circumstances where the testimony of eye-witnesses will indicate that you walked up to within a few feet of Banks and shot him while he was on the ground is certainly sufficient to allow the jury to find malice in this case. We will continue to explore any other possibilities for mitigating the liability phase of the trial. However, our general feeling at this time is that you stand a significant chance of being found guilty of first degree murder based upon the evidence we have before us. Shortly after receiving the above letter, petitioner elected to accept the Commonwealth's offer to not seek the death penalty in return for his guilty plea to first degree murder. Petitioner subsequently received a report from the ballistics expert ~2 He now which, he alleges, indicates that the fatal bullet did not come from his gun. contends that he was led to believe that he killed the victim when, in fact, he did not. ~0 PCRA Hearing Transcript, p. 16. See also Commonwealth's PCRA Hearing Exhibit 4. t l Commonwealth's PCRA Hearing Exhibit 4. ~2 See Defendant's PCRA Hearing Exhibit 3. 98-2195 CRIMINAL Under these circumstances he feels that he is entitled to relief under Section 9543(a)(2)(iii). If the ballistics expert truly was of the opinion that the bullet in the victim's brain did not come from petitioner's gun, we agree that he would be entitled to relief. However, petitioner has not proven that his expert was of that opinion. Significantly, he did not call the expert to testify at the evidentiary heating. He merely introduced into evidence a letter from the expert to his trial counsel dated July 6, 1999.~3 While the letter raises the possibility that there was a mix-up in the identification of the bullets, it does not say that the fatal bullet did not come from petitioner's gun. Trial counsel explained the purpose of the letter as follows' So what we had was a bullet that obviously came from the brain, and obviously every expert said this particular bullet was a .22 caliber, and all of the evidence pointed to the fact that Mr. Johnson had used the .22 caliber bullet. Those - - that last meeting in the District Attorney's Office with our expert witness on the ballistics took place on June 25th, 1999, and my time for that date was three hours of meeting with the expert and reviewing the evidence and reviewing the file with Mr. Nardo. After that meeting we were convinced we could go nowhere with the expert. The only thing we were left with is an opportunity to maybe just try to impeach the integrity of the Commonwealth expert. Mr. Fasnacht basically said, I'm not going to be able to help you. There was a suggestion that perhaps nobody had weighed the bullets, and that might be an issue, so we asked Mr. Fasnacht to just give us some kind of written report that we could use for our own information if we have to cross- examine an expert for the Commonwealth at trial. That report he did provide to us, and it was a report that we forwarded later to Mr. Johnson. Q. Is that the July 6th, 1999, report which is marked as Defendant's Exhibit No. 3? A. That's correct. And that report was merely a request from me to Mr. Fasnacht - - and you know I have to say this as an attorney, but sometimes when you're representing somebody on trial for their life, you've got to do whatever you can, and I was looking for anything that would help me at trial. Fasnacht was not going to be able to help me, so if I could impeach the integrity of the Commonwealth's witness with information such as failure to ~3 See Defendant's PCRA Hearing Exhibit 3. t 98-2195 CRIMINAL weigh the bullets or other items, I was going to try and do that, but the bottom line was the bullet from the .22 was the bullet in Mr. Banks' brain, and our ballistics expert could not help us at all.TM The report relied on by petitioner as evidence of his innocence was written merely to assist his trial counsel in cross-examining the Commonwealth's expert at trial. It does not in any way vitiate the soundness of the advice given by trial counsel to petitioner. Nor does it establish his innocence of the crime. Therefore, he has not sustained the burden necessary to entitle him to relief under Section 9543(a)(2)(iii). Other Matters Complained Of On Appeal. Petitioner raises several additional issues that should be discussed briefly. He makes a general allegation that his guilty plea was not knowingly and intelligently entered. "To determine the voluntariness of a guilty plea and whether a defendant acted knowingly and intelligently, the comment to Pa. R. Crim. Procedure 319 mandates that a trial court inquire into six particular areas... ". Commonwealth v, Mendoza, supra, 730 A.2d at 506. We have reviewed the guilty plea colloquy and are satisfied that all of the areas of inquiry mandated by the comment to Rule 319 were adequately covered. Petitioner also argues that, since he pled guilty and was sentenced on the same day, he "had insufficient time to consider the ramifications of his plea.''~5 Therefore, he contends that his plea was not "knowing, voluntary and intelligently made.''~6 We are not aware of any law that supports petitioner's position on this issue. In fact, it would seem that existing authority is against him. See Commonwealth v. Myers, 434 ~4 PCRA Hearing Transcript, pp. 39-40. ~5 See Statement of Matters Complained of on Appeal. ~6 See Statement of Matters Complained of on Appeal. 98-2195 CRIMINAL Pa. Super. 221,642 A.2d 1103 (1994). In any event, petitioner specifically waived a presentence investigation report so that he could be sentenced and moved to a state correctional facility on the day of his guilty plea.~7 Furthermore, he had more than adequate time to reflect upon the consequences of the plea before it was entered. In the months and days before it was entered, the ramifications of his guilty plea were thoroughly explained in numerous conferences with, and letters from, his trial counsel.~8 Therefore, we are satisfied that this issue has no merit. Finally, petitioner contends that the plea was induced as a result of his limited education and experience as well as the lack of advice from his family.19 We are satisfied that those allegations are not true. Petitioner was eighteen years old and had completed the eleventh grade at the time his plea was entered.2° He was a worldly, cold, vicious and violent young adult who had been raised on the streets.2~ Furthermore, his family did not want anything to do with him. 22 However, even if the allegations were true, he would still not be entitled to relief under Section 9543(a)(2)(iii). The bottom line is that petitioner entered the guilty plea in order to avoid the death penalty. It may have been induced, in part, by the advice of his counsel.23 However, we are convinced that counsel's advice was sound. Furthermore, 17 Guilty Plea and Sentence Colloquy, pp. 3, 14. ~8 PCRA Hearing Transcript, pP. 31-35, Commonwealth's PCRA Hearing Exhibits 2, 3, and 4. ~9 See Statement of Matters Complained of on Appeal. 20 Guilty Plea and Sentence Colloquy p. 6. 2~ PCRA Hearing Transcript, pp. 45, 47. 22 PCRA Hearing Transcript, p. 47. 23 Before accepting his plea, we made certain that despite whatever advice counsel might be giving him, the final decision to plead guilty was petitioner's and petitioner's alone. See Guilty Plea and Sentence Colloquy p. 7. 98-2195 CRIMINAL we are satisfied that the guilty plea was knowing, intelligent and, under the circumstances, extremely wise.24 For the reasons set forth in the foregoing opinion, we denied petitioner's claim for relief under the Post Conviction Relief Act. Date Edward E. Guido, J. Jaime M. Keating, Esquire For the Commonwealth Gregory Abeln, Esquire For the Defendant 'sld 24 On May 12, 1999, petitioner's counsel sent him a letter which was introduced as Commonwealth's PCRA Exhibit 2. It thoroughly discussed the options available to, and evidence against, petitioner. It was followed by letters on June 28, 1999, and July 8, 1999, (Commonwealth's PCRA Exhibits 3 & 4) as well as several face to face conferences with petitioner. The correspondence makes it perfectly clear that the evidence against petitioner was overwhelming and that the death penalty was a very real possibility. 10