Comm. v. Johnson, 2018 PA Super 32 (Feb. 15, 2018)

This was an appeal out of Erie County. Johnson had previously pled guilty to two counts of robbery, and he was sentenced to an overall term of imprisonment of 8.5 to 17 years.  Following a direct appeal, Johnson filed a petition for post-conviction relief (PCRA).  The court appointed in him counsel in that regard, and counsel filed what he styled a “supplemental” PCRA, which incorporated the claims Johnson raised.

On that point, the Superior Court started its analysis in this appeal on what was actually preserved for appellate review.  It recognized that appointed counsel attempted to preserve all of Johnson’s issues while separately litigating one independent claim; however, the Superior Court characterized this as “hybrid representation” and noted that it was not permitted.  Accordingly, the vast majority of Johnson’s claims raised on appeal were waived.

The sole issue the Superior Court did contend with, though, was this: did plea counsel render ineffective assistance when she failed to explain to Johnson that by withdrawing his guilty plea he may then reinstate a previously withdrawn motion to suppress?

Here, in this case, a motion to suppress had been filed on Johnson’s behalf.  He claimed that he followed his attorney’s advice and he was “taken advantage of” and “forced into accepting the plea.”  He further claimed that he “did not know that he could refile his suppression motion if his plea was withdrawn,” as he was given the chance to do.  In this regard, Johnson couched his claim of ineffective assistance to his attorney’s “failure to fully explain that the suppression motion[] could be revived.”  The Superior Court, however, rejected the notion that counsel could be ineffective for such a failure.  It reasoned accordingly:

[W]e do not agree that the result in this case turns on whether [Johnson] mistakenly believe that he was prevented from seeking suppression.  Instead, we find that the question is simply whether counsel’s advice to accept the plea was constitutionally sound.

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[T]he key decision was whether to plead guilty or proceed to trial.

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[T]he decision to litigate, or not litigate, suppression motions [was] left to counsel in the exercise of . . . her judgment.

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The upshot of these principles is that where a defendant alleges that counsel ineffectively failed to pursue a suppression motion, the inquiry is whether the failure to file the motion is itself objectively unreasonable, which requires a showing that the motion would be meritorious.

 

In this case, plea counsel advised Johnson that he “did not have a shot” at meaningfully winning his suppression motion, and there were still eyewitnesses who could make the case against him even if his suppression motion was successful.  Provided that background, the Superior Court said, it is not enough that Johnson would have filed the suppression motion had he known he could to show counsel was ineffective; Johnson would have had to shown that he would have filed the motion and proceeded to trial instead of accepting the plea.  The Superior Court was quick to remind Johnson what the U.S. Supreme Court has said in situations such as these: “A defendant who accepts a plea bargain on counsel’s advice does not necessarily suffer prejudice when his counsel fails to seek suppression of evidence, even if it would be reversible error for the court to admit that evidence.”

“Prejudice” is the key inquiry, and under the circumstances a defendant must demonstrate just how his attorney’s actions or inactions put him in a worse spot.  And in this case, Johnson could demonstrate that.  The Superior Court affirmed that Johnson’s plea counsel rendered effective assistance.