Com. v. Velez, D.
817 EDA 2016
| Pa. Super. Ct. | Jan 31, 2017Background
- In 2007 Velez and Christian Bueno went looking for a robbery victim; Bueno shot and killed Debra Robertson during the robbery. Velez participated and Soto drove but was not charged.
- Velez cooperated with police and agreed to plead guilty in exchange for the Commonwealth not pursuing first‑degree murder and for concurrent sentencing; he agreed to testify against Bueno.
- On September 15, 2011 Velez entered an open guilty plea to third‑degree murder and conspiracy; on October 21, 2011 he was sentenced to 20–40 years’ imprisonment (aggregate).
- Velez appealed the discretionary aspects of his sentence; this Court affirmed in 2012. Velez then filed a timely PCRA petition in 2013 asserting his plea was not knowing and that trial counsel was ineffective for failing to preserve a claim of trial‑court bias.
- By agreement at the PCRA level, Velez was allowed to file a nunc pro tunc post‑sentence motion and withdrew other PCRA claims; the trial court denied the nunc pro tunc motion. This Court vacated and remanded in 2015 for the PCRA court to address the IAC claim on the merits.
- After a merits hearing the PCRA court denied relief on February 24, 2016; Velez appealed. The Superior Court affirmed, holding counsel was not ineffective because the bias claim lacked arguable merit and the sentence was within guideline range and imposed pursuant to the plea agreement.
Issues
| Issue | Velez's Argument | Commonwealth/Trial Court Argument | Held |
|---|---|---|---|
| Whether trial counsel was ineffective for failing to preserve a claim that the sentence resulted from trial‑court bias or ill will | Counsel should have raised bias at sentencing or in post‑sentence motions; failure waived the issue on direct appeal | The bias claim is meritless; sentence was within guidelines, consistent with plea, and court considered mitigating factors | Counsel not ineffective; claim lacked arguable merit and no prejudice shown |
Key Cases Cited
- Commonwealth v. Rigg, 84 A.3d 1080 (Pa. Super. 2014) (standard of review for PCRA appeals)
- Commonwealth v. Perry, 128 A.3d 1285 (Pa. Super. 2015) (three‑prong ineffective assistance of counsel test and burden on petitioner)
- Commonwealth v. Johnson, 125 A.3d 822 (Pa. Super. 2015) (sentencing court abuses discretion when acting from partiality, prejudice, bias, or ill will)
- Commonwealth v. Jones, 912 A.2d 268 (Pa. 2006) (counsel not ineffective for failing to raise meritless claims)