Com. v. Gordon, J.
Com. v. Gordon, J. No. 1959 MDA 2015
Pa. Super. Ct.Feb 22, 2017Background
- Appellant Jody Gordon pled guilty (open plea) to possession with intent to deliver (6.4 g cocaine) on July 9, 2014; plea colloquy confirmed the plea was voluntary and open as to sentencing.
- At sentencing, the court imposed 2½–5 years for PWID to run consecutively to a 5–10 year sentence imposed on a related docket; Appellant did not file post-sentence motions or a direct appeal.
- Appellant filed a timely pro se PCRA petition alleging multiple instances of ineffective assistance of plea counsel (including an alleged promise of concurrent sentences), and the PCRA court held an evidentiary hearing.
- At the PCRA hearing, plea counsel testified he never guaranteed concurrent sentences, that discovery was provided before the plea, that suppression lacked merit, and that Appellant never supplied usable alibi witness information; the PCRA court credited counsel and denied relief.
- Appellant appealed; appellate counsel filed a Turner/Finley no-merit submission, supplemented after a remand; the Superior Court found counsel substantially complied with Turner/Finley and affirmed the PCRA denial, granting counsel permission to withdraw.
Issues
| Issue | Appellant's Argument | Plea Counsel / Commonwealth's Argument | Held |
|---|---|---|---|
| Ineffective assistance caused an involuntary guilty plea (alleged promise of concurrent sentence) | Gordon says plea counsel promised his PWID sentence would run concurrent, inducing the plea | Counsel and court say plea was an open plea, no promise made; colloquy warned no sentencing agreement | Claim rejected — plea was knowing/voluntary; Appellant failed to prove prejudice |
| Failure to move to dismiss or suppress (pre-trial motions) | Gordon contends counsel should have sought suppression/dismissal for lack of evidence | Counsel testified suppression/dismissal lacked merit; PCRA counsel conceded no relief warranted | Claim rejected — no merit and no prejudice shown |
| Failure to provide pretrial discovery | Gordon says lack of discovery prevented him from making an informed plea | Counsel produced discovery before plea; timing did not prejudice the plea | Claim rejected — discovery provided prior to plea; no prejudice established |
| Failure to investigate or advise about alibi witnesses | Gordon asserts he had alibi witnesses who would prove innocence | Counsel said Gordon only gave his wife’s contact (unreachable); no alibi witnesses presented at hearing | Claim rejected — Gordon failed to identify/warrant available witnesses; no prejudice shown |
| Failure to challenge alleged mandatory minimum sentence | Gordon claims counsel failed to challenge a mandatory minimum | PCRA counsel conceded PWID sentence had no mandatory minimum | Claim dismissed — factually unsupported |
| Failure to file post-sentence motions or direct appeal | Gordon asserts counsel failed to file requested motions/appeal | Counsel testified Gordon did not request post-sentence motions/appeal in this case; requests concerned a different docket | Claim rejected — Gordon did not prove he asked counsel to file; court credited counsel |
Key Cases Cited
- Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) (no-merit brief/withdrawal procedure requirements)
- Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (companion to Turner for no-merit submissions)
- Commonwealth v. Karanicolas, 836 A.2d 940 (Pa. Super. 2003) (substantial compliance with Turner/Finley)
- Commonwealth v. Wrecks, 931 A.2d 717 (Pa. Super. 2007) (Turner/Finley compliance guidance)
- Commonwealth v. Lantzy, 736 A.2d 564 (Pa. 1999) (failure to file requested direct appeal presumes prejudice)
- Commonwealth v. Washington, 927 A.2d 586 (Pa. 2007) (standards for failure-to-call-witness claims)
- Commonwealth v. Moser, 921 A.2d 526 (Pa. Super. 2007) (ineffective assistance in the guilty-plea context)
- Commonwealth v. Johnson, 966 A.2d 523 (Pa. 2009) (requirements for proving prejudice from failure to call witnesses)