2009 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

9-30-2009

Rice v. Wynder

Precedential or Non-Precedential: Non-Precedential

Docket No. 06-4689

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Recommended Citation

"Rice v. Wynder" (2009). 2009 Decisions. Paper 581.

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

 

No. 06-4689

 

CARL R. RICE,

 Appellant

v.

JAMES T. WYNDER; THE DISTRICT ATTORNEY OF

THE COUNTY OF PHILADELPHIA; THE ATTORNEY

GENERAL OF THE STATE OF PENNSYLVANIA

 

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

(D.C. Civil No. 06-cv-00683)

District Judge: Honorable Paul S. Diamond

 

Submitted Under Third Circuit LAR 34.1(a)

September 25, 2009

 

Before: BARRY, FISHER and JORDAN, Circuit Judges

(Opinion Filed: September 30, 2009)

 

OPINION

 

BARRY, Circuit Judge

On May 17, 2007, we granted a certificate of appealability as to two of Carl Rice’s
 Rice is a U.S. citizen, and later stated that the reference to deportation was a 1

mistake.

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federal habeas claims, each of which alleged a violation of his Sixth Amendment right to

the effective assistance of counsel. Rice argues that counsel rendered ineffective

assistance when he failed to file a direct appeal and when he failed to properly advise

Rice regarding the possibility of obtaining a reduction of his sentence, thereby inducing

Rice to plead guilty. We will affirm.

I.

Rice pled guilty to third-degree murder and other related charges pursuant to a

plea agreement in which he agreed to a sentence of 27 to 54 years in prison in return for

the Commonwealth’s agreement to drop a first-degree murder charge. Rice did not file a

direct appeal, but instead filed a PCRA petition in which he apparently argued, although

it is less than clear, that counsel was ineffective because he failed to file a post-sentence

motion for modification of the sentence, failed to advise Rice that his guilty plea could

result in deportation, and failed to file an appeal in a timely manner. The PCRA Court 1

denied Rice’s petition, but the Superior Court remanded for a hearing as to “whether

[Rice] indeed requested that counsel file a direct appeal, whether counsel ineffectively

failed to file that appeal, and for consideration of any other issues raised by [Rice].”

(App. at 87.)

The PCRA Court held a two-part hearing at which Rice was represented by
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counsel. At the first part of the hearing, on February 23, 2004, the Court heard the

testimony of plea counsel, who testified that an intermediary asked him to seek

reconsideration of Rice’s sentence and that he failed to do so. Counsel was unclear as to

whether Rice himself requested him to file an appeal or a post-sentence motion.

Rice then testified that he was seeking only reconsideration of his sentence and that he

was not seeking to withdraw his plea. Rice did not ask that his appellate rights be

reinstated and counsel confirmed with Rice, on the record, that the only relief Rice was

seeking was reconsideration of his sentence.

The PCRA Court then scheduled an evidentiary hearing “with regard to [the]

motion to reconsider or modify the sentence,” to be held the following week. (App. at

31.) At that hearing, on February 27, 2004, Rice testified that he understood that he

agreed to 27 to 54 years, but that “I understood this to mean . . . maybe by the mercy of

the Court, the mitigating factors, maybe the plea would have been 20 to 40.” (App. at

34.) Rice testified that plea counsel never told him that the sentence could not be

modified from the agreed-upon 27 to 54 years, and did tell him “he would file a motion

to reconsider the sentence in five years or something like this.” (App. at 35.) On crossexamination, Rice confirmed that he had committed the crimes to which he had pled

guilty and had testified truthfully as to his understanding of his plea at the plea colloquy. 

He stated that the plea to third degree murder was “greatly appreciated” (App. at 34)

because it ensured that he would not face the death penalty. In closing, counsel stated: 
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“[P]etitioner is not attempting to withdraw his plea. He is not saying that he is not guilty. 

What he is saying is that he did not understand that it was binding that he would get 27 to

54 years incarceration.” (App. at 41.)

The PCRA Court then determined:

I think, Mr. Rice, I think he understood exactly what was going on at the

time of his plea; was thankful that he avoided both the death penalty and a

life sentence; that this is a clear case of change of heart, hindsight, secondguessing, whatever, disappointment in some way subsequent to the time,

although he was thoroughly satisfied, I do believe, at the time of the event

when he received the absolute benefit of his bargain, which was the 27 to

54 years. (App. at 41.)

On appeal from this decision, Rice took a different approach, arguing that the

PCRA Court should have allowed him to withdraw his guilty plea because it was induced

by counsel’s erroneous sentencing advice. The Superior Court found that Rice had

abandoned any claim of ineffective assistance as to the filing – or non-filing – of a direct

appeal. The Court went on to discuss, in some detail, the applicable law and, in much

detail, the record that it found supported the PCRA Court’s conclusion that the requisites

for a valid plea had been satisfied in the written and oral plea colloquies. The Court

thereupon found that 

[t]he record supports the PCRA court’s conclusion that Appellant chose to

enter the plea, and, after he was sentenced in accordance with the

agreement in exchange for the withdrawal of first degree murder charges,

he was disappointed with the negotiated sentence. “Our law does not

require that a defendant be totally pleased with the outcome of his decision

to plead guilty, only that his decision be voluntary, knowing and

intelligent.” Pollard, 832 A.2d at 524 (quoting Commonwealth v. Baldwin,

760 A.2d 883, 885 (Pa. Super. 2000), appeal denied, 566 Pa. 634, 781
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A.2d 138 (2001)).

(App. at 95). Concluding that Rice’s negotiated guilty plea was validly entered, the

Court rejected the ineffective assistance of counsel claim finding that counsel was not

ineffective for failing to raise a meritless claim. The Pennsylvania Supreme Court denied

review.

In his habeas petition, Rice alleged that he was deprived of his Sixth Amendment

right to effective assistance of counsel not because counsel failed to file an appeal, but

because counsel failed to file a post-sentence motion despite the fact that Rice

“specifically asked plea counsel to file a motion for reconsideration of his sentence

within the 10-day window permitted for doing so.” (App. at 51.) Rice alleged, as well,

that counsel did not explain to him that “[he] was pleading guilty for a specific

sentence,” and that “[his] youth at the time of the plea, as well as his poor education,

combined with plea counsel’s ineffectiveness rendered his guilty plea unknowing and

involuntarily entered.” (App. at 51-52.) 

By order dated November 5, 2006, the District Court approved and adopted the

Report and Recommendation of the Magistrate Judge, and denied the habeas petition. In

the Opinion adopted by the Court, the Magistrate Judge recognized that the terms

“motion for reconsideration” and “appeal” were used interchangeably by counsel at the

PCRA hearing. (App. at 6, n.1). Somewhat curiously, the Magistrate Judge continued to

use the terms interchangeably, calling them in his Opinion “appellate rights,” and
 It appears that the complete state record was not before the Magistrate Judge or the 2

District Court when they ruled or before us when we granted a certificate of appealability. 

It is before us now. 

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concluding that habeas relief was not warranted because Rice’s “state appellate rights”

had effectively been reinstated “through two PCRA evidentiary hearings and full

appellate review.” (Id. at 12). He concluded as well that the Superior Court’s ruling as

to the voluntariness of Rice’s plea was “well in accord with federal law,” and why, and

that to accept Rice’s argument that plea counsel’s advice – or lack thereof – induced his

guilty plea because Rice believed that he could file a motion for reconsideration “would

require the Court to disregard outright all the statements made in open court, on-therecord and in direct response to questions about [Rice’s] understanding of the

consequences of his plea.” (App. at 14, 16.) 

We granted a certificate of appealability as to two issues: (1) whether counsel

rendered ineffective assistance when he failed to file a direct appeal; and (2) whether

Rice’s guilty plea was induced by plea counsel’s failure to properly advise him regarding

the possibility of obtaining a reduction of his agreed-upon sentence under Pennsylvania

law.2

II.

We exercise plenary review of the decision of the District Court denying, without

an evidentiary hearing, Rice’s habeas petition. Thomas v. Horn, 570 F.3d 105, 113 (3d

Cir. 2009). The District Court had jurisdiction pursuant to 28 U.S.C. §§ 2241 and 2254,
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and we have jurisdiction pursuant to 28 U.S.C. §§1291 and 2253.

A. Ineffective Assistance for Failure to File an Appeal

 We granted a certificate of appealability as to defense counsel’s failure to file a

direct appeal. In light of the full record now before us, we need not have done so. Rice

repeatedly testified at the PCRA hearing that the only relief he was seeking was

modification of his sentence by the sentencing judge, thus essentially admitting that

counsel was not ineffective for not filing an appeal. This was confirmed in Rice’s brief

on appeal from the denial of the PCRA petition which stated: “It was established [at the

PCRA hearing] that the appellant did not wish to appeal his conviction, but that he

desired only a modification of sentence.” (App. at 150.) The issue, if issue it be, never

went any further, and the Superior Court concluded that Rice “abandoned any claims

related to counsel’s failure to file a direct appeal.” (App. at 91 n.4). We agree. 

B. Guilty Plea Induced by Ineffective Assistance of Counsel

We may not grant relief as to a claim that was adjudicated on the merits in state

court proceedings unless that adjudication resulted in a decision that was “contrary to, or

involved an unreasonable application of, clearly established Federal law,” or resulted in a

decision that was based on an “unreasonable determination of the facts.” 28 U.S.C. §

2254(d). The state courts’ factual findings are presumed to be correct unless the

presumption is rebutted by clear and convincing evidence. 28 U.S.C. § 2254 (e)(1). 

In cases where a defendant claims that he was induced to plead guilty based on the
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ineffective assistance of counsel, the defendant must show “a reasonable probability that,

but for counsel’s errors, he would not have pleaded guilty and would have insisted on

going to trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985). We have held that a defendant

“must make more than a bare allegation that but for counsel’s error he would have

pleaded not guilty and gone to trial.” Parry v. Rosemeyer, 64 F.3d 110, 118 (3d Cir.

1995), superseded by statute on other grounds as stated in Dickerson v. Vaughn, 90 F.3d

87, 90 (3d Cir. 1996). 

Rice alleges that, but for counsel’s failure to inform him that his sentence was not

modifiable, he would have pleaded not guilty and that “part of the reason he entered the

plea was because he felt the sentence could be revisited and shortened at a later point.”

(Appellant’s Br. at 41). During the PCRA hearing, he specifically and repeatedly

disclaimed any interest in withdrawing his guilty plea, and confirmed that he truthfully

answered all of the trial court’s questions about his understanding of his plea during the

plea colloquy. Moreover, he did not testify that any advice given by plea counsel before

entry of his guilty plea induced him to plead guilty, but only that plea counsel told him, at

some point, that he would file a motion in five years and that the sentence, at that point,

could be reduced. On appeal from the denial of the PCRA petition, however, he alleged

that “there is a reasonable probability that he would have gone to trial had he been fully

cognizant of the sentence to which he was agreeing,” (App. at 132), although he offered

nothing to support that allegation. 
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We have discussed in some detail the proceedings before the PCRA Court and the

Superior Court and will not reprise that discussion here. Suffice it to say that the District

Court correctly concluded that the state courts’ adjudication of this claim on the merits

was not “contrary to” or an “unreasonable application of clearly established Federal law,”

nor did it result in a decision that was based on an “unreasonable determination of the

facts.” 28 U.S.C. § 2254(d). 

III.

We will affirm the order of the District Court.