Commonwealth v. Rizor

Docket Number32 WAP 2022,33 WAP 2022,J-35A-2023,J-35B-2023
Decision Date22 November 2023
CourtPennsylvania Supreme Court

SUBMITTED: April 4, 2023

Appeal from the Order of the Superior Court entered October 8, 2021 at No. 348 WDA 2020, reversing the Order of the Court of Common Pleas of Washington County entered February 10, 2020 at No. CP-63-CR-0002637-2004, vacating the Judgment of Sentence entered June 5, 2008, and remanding.




This case arises out of a Post Conviction Relief Act[1] petition filed by Jessica Rizor ("Rizor") in which she alleged that trial counsel provided inadequate advice with regard to a plea offer. According to Rizor, her trial counsel's inadequate advice led her to proceed to a trial - where her life sentence was all but assured - in lieu of accepting a plea offer that would have resulted in a five and a half to thirty-year sentence.[2] The Superior Court agreed and reversed the PCRA court order denying relief and remanded "for a new trial or entry of a plea."[3] The Commonwealth insists that the PCRA court correctly denied relief and that the Superior Court's decision rested on a faulty foundation which assumed that trial counsel provided ineffective assistance rather than presuming the opposite. The Commonwealth further believes that the Superior Court improperly ignored the PCRA court's credibility determinations. This Court granted review to address whether the Superior Court erred in reversing the PCRA court's denial of relief and, if not, the appropriateness of the remedy granted by the Superior Court.[4] As set forth below, we agree with the Commonwealth. We find that the Superior Court erred in reversing the PCRA court order denying relief where Rizor has failed to establish a reasonable probability that but for counsel's alleged deficient advice, she would have accepted the plea deal. We therefore vacate the Superior Court's judgment and remand to that court to address Rizor's outstanding challenges.

We set forth the facts of the case pertinent to the appeal. In 2004, Rizor concealed from family and co-workers the fact that she was pregnant. Even Rizor's mother and husband, with whom she lived, were kept in the dark about the pregnancy. Early in the morning the day following Thanksgiving 2004, Rizor went to the bathroom of her home and gave birth to a full-term baby girl. She then placed the baby in plastic bags where the baby subsequently died. Rizor's husband found the deceased baby after Rizor insisted that he take the garbage out of the house. He alerted Rizor's mother, who called 911 and an investigation ensued. The Medical Examiner performed an autopsy and discovered that the baby was born alive before dying by asphyxiation. Rizor gave a written statement to police, wherein she detailed the events surrounding the incident. Rizor, 2021 WL 4704669, *1 (internal citations omitted). Rizor was charged with murder and related crimes.

In the four years leading up to trial, Rizor was examined by multiple mental health professionals at the behest of her trial counsel, Robert Brady, Esquire ("trial counsel"),[5]and once pursuant to a request by the Commonwealth. Trial counsel's defense strategy was to present a mental health defense through the testimony of Dr. Michael Crabtree and Dr. Laszlo Petras. Trial counsel indicated, albeit very imprecisely, that the expert testimony of Dr. Crabtree and Dr. Petras would prove that Rizor neither premeditated the killing of the baby nor acted with malice in bringing about the baby's death.[6] At points, trial counsel framed this as a diminished capacity defense, which, pursuant to the law, would operate to reduce first degree murder to third degree murder.[7] However, trial counsel also maintained that presenting the testimony would support reducing the homicide to involuntary manslaughter.[8] According to counsel, expert testimony regarding Rizor's depersonalization disorder[9] would explain that she did not lie when she said that she was not pregnant, but that her disorder caused her to disbelieve that she was pregnant.

The Commonwealth moved to preclude the expert mental health testimony on the grounds that it was inadmissible and did not meet the requirements for a mental health defense. The Commonwealth insisted that the defense failed to meet its burden of presenting the requisite "extensive psychiatric testimony establishing the defendant suffered from one or more mental disorders which prevented … her from formulating the specific intent to kill." N.T., 3/4/2008, at 23; see also id. at 38. Relying on Commonwealth v. Cuevas, 832 A.2d 388, 393 (Pa. 2003), the Commonwealth explained that the defense of diminished capacity is extremely limited, and if successful, reduces first degree murder to third degree murder only. N.T., 3/4/2008, at 23. It stated that the defense did not have a single psychiatric report purporting to provide an opinion about Rizor's inability to formulate the specific intent to kill, and thus there was no scientifically reliable evidence to meet the standard. Id. at 23-24, 41. While that motion was pending, the Commonwealth offered Rizor a five and a half to thirty-year sentence of imprisonment in exchange for a plea of guilty but mentally ill to third degree murder.

At a pretrial hearing that occurred after the jury was seated, the court addressed both the plea offer and the mental health evidence. First, the court began discussing the mental health evidence in chambers when Rizor was not present, but it did not resolve the issue during that discussion. N.T., 3/4/2008, at 8-47.[10] The hearing progressed to the courtroom, and with Rizor present, the trial court conducted a colloquy regarding her rejection of the plea. Id. at 48-53. During the colloquy, the court reviewed the charges against Rizor as well as the possibility of a life sentence. Id. at 49. The plea offer was recited on the record, and Rizor confirmed that she rejected the offer. Id. at 50. She also confirmed that she had discussed the plea offer with her attorneys and her family. Id. The trial court's colloquy of Rizor included the following:

Q. Ms. Rizor, of course, we haven't heard all of the evidence in this case by any means, but I can say from what I understand what will come in evidence in the next few days that it is very much possible that the jury could find you guilty of first degree murder. Do you understand that?
A. Yes sir.
Q. There may be a question of when you might be paroled on a third degree charge, but there is no likelihood you would be paroled if the jury comes back with that conviction. Do you understand?
A. Yes sir.
Q. Are you willing to take that risk?
A. Yes sir.
Q. Are you sure you're willing to take that risk?
A. Yes.
Q. I notice you're crying. Are you conflicted about that?
A. No sir.

Id. at 51-52. The trial court also confirmed with Rizor that she had adequate time to think over the plea offer, that she discussed her defense with her attorneys, and, when asked, she declined to raise any questions or bring anything to the court's attention. Id. at 52-53.

Thereafter, the trial court issued a preliminary ruling precluding the admission of the mental health expert testimony. Id. at 60-61.[11] It was after Rizor rejected the offer that the trial court precluded the mental health evidence. Rizor proceeded to a jury trial where trial counsel attempted to convince the jury that the baby was stillborn, and therefore, that Rizor did not kill the newborn.[12]

Rizor was convicted of first degree murder, concealing the death of a child, and abuse of a corpse.[13] On June 5, 2008, she was sentenced to life imprisonment. On direct appeal, the Superior Court affirmed the judgment of sentence, rejecting a claim that the trial court erred in precluding the mental health evidence. This Court denied Rizor's Petition for Allowance of Appeal.

On September 26, 2011, Rizor timely filed an uncounseled PCRA petition which she subsequently amended with the PCRA court's permission and the aid of counsel. PCRA Petition, 9/26/2011; First Amended PCRA Petition, 9/9/2013; Second Amended PCRA Petition, 10/4/2014. In her second amended PCRA petition, she raised various claims of ineffective assistance of counsel, two of which are the primary focus of this appeal.[14] First, she alleged that trial counsel provided deficient advice with regard to the plea offer, a claim which she entitled: "failure to communicate with defendant, prepare for trial, review plea offer, and discuss sentencing guidelines[.]" Second Amended PCRA Petition, 10/4/2014 ¶¶ 28-39 (capitalization removed).[15] She observed that a claim that counsel was ineffective in advising a defendant to reject a plea offer is cognizable under the PCRA. Id. ¶ 39 (citing Commonwealth ex rel. Dadario v. Goldberg, 773 A.2d 126 (Pa. 2001)). In support of this claim, she averred that trial counsel did not fully discuss with her "the requirements of the defense of diminished capacity, the applicable sentencing guidelines and/or mandatory sentences for the crimes charged, and the terms of the Commonwealth's plea offer." Id. ¶¶ 36, 38 (alleging that trial counsel's file contains no memorialization of any plea discussions with the Commonwealth or any letter to Rizor regarding a plea). She also averred that trial counsel specifically advised her and her parents that Rizor "would never set foot on state prison grounds[.]" Id. ¶ 37. She did not specifically aver that she would have accepted the plea offer if not for trial counsel's advice. Id. ¶¶ 28-39.

Second Rizor alleged that trial counsel...

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