Shotts v. Wetzel

• Decision Date: 31 July 2013
• Docket Number: No. 11–3670.,11–3670.
• Citation: 724 F.3d 364
• Parties: Randall SHOTTS, Appellant v. John WETZEL, Secretary PA Doc; The Attorney General of the State of Pennsylvania; The District Attorney of the County of Westmoreland.
• Court: U.S. Court of Appeals — Third Circuit

724 F.3d 364

Randall SHOTTS, Appellant

v.John WETZEL, Secretary PA Doc; The Attorney General of the State of Pennsylvania; The District Attorney of the County of Westmoreland.

No. 11–3670.

United States Court of Appeals,Third Circuit.

Argued June 10, 2013.

Opinion Filed July 31, 2013.

Diana Stavroulakis, Esquire, (Argued), Pittsburgh, PA, for Appellant.

James T. Lazar, Esquire, (Argued), John W. Peck, Esquire, Westmoreland County Office of District Attorney, Greensburg, PA, for Appellees.

Before: McKEE, Chief Judge, AMBRO, and NYGAARD, Circuit Judges.

OPINION OF THE COURT

AMBRO, Circuit Judge.

In 2001, Randall Keith Shotts was sentenced to 30 1/2 to 133 years' imprisonment in Westmoreland County, Pennsylvania. Following a lengthy state collateral review process, during which Shotts was appointed five different counsel, he filed this petition for habeas corpus. It alleges that his first attorney rendered ineffective assistance during plea negotiations, his guilty plea, and sentencing. The District Court dismissed Shotts' claim as procedurally defaulted.

We disagree. The Pennsylvania Superior Court's determination that Shotts' claim was defaulted because he failed to raise it when first represented by new counsel was what we term an exorbitant application of an otherwise independent and adequate state rule. As such, it cannot bar federal review of Shotts' claim.

However, on the merits Shotts comes up short, as he has not demonstrated ineffective assistance of counsel. We thus affirm the District Court's judgment denying Shotts' petition.

I. Factual and Procedural HistoryA. Conviction and Sentencing

In 1999, the Westmoreland County District Attorney charged Shotts with offenses arising from a string of burglaries. While in jail following his arrest, Shotts offered to assist the District Attorney's office in an investigation into corruption at the Westmoreland County prison. In exchange for his assistance, the District Attorney's office helped secure Shotts' release on bail. Once released, Shotts engaged in another spree of crimes, and additional charges were filed in 2000. Ultimately, he was charged under twelve separate informations for offenses including burglary, theft, criminal mischief, criminal conspiracy, receiving stolen property, passing bad checks, criminal trespass, aggravated assault, simple assault, reckless endangerment of another person, and driving under the influence of alcohol. (Shotts was also charged with probation violations in three earlier cases, but no additional sentence was added for these violations.)

Attorney Brian Aston represented Shotts in connection with all of the charges from the time of Shotts' preliminary hearing through his sentencing. Because Shotts had made substantial confessions to the police, he and Aston agreed that the case should not go to trial, and Aston pursued a plea deal with the Commonwealth. He apparently did not request discovery of police records or copies of Shotts' statements to the police.

The Commonwealth offered Aston a plea deal that would have resulted in a sentence of ten to twenty years' imprisonment. On hearing this, Judge Richard E. McCormick, Jr., who was presiding over the case, commented that the offered sentence seemed high, given Shotts' assistance with the prison corruption investigation. Aston reported the offer and the Judge's statement to Shotts. He rejected the plea deal and entered a general guilty plea without an agreement with the Commonwealth. In a plea colloquy before the Court, Shotts confirmed that his lawyer had explained all of the charges and all of the maximum sentences, that he was pleading without an agreement with the Commonwealth, and that the Court could impose “the various sentences upon these general pleas.” App. at 127–28. Sentencing was delayed to allow for a presentence investigation report and for Shotts to present evidence of his participation in the corruption investigation. As to the latter, Judge McCormick told the parties that he knew about Shotts' assistance, but needed evidence to consider that as a factor for sentencing purposes.

Despite hearing evidence of Shotts' cooperation in the corruption investigation and notwithstanding his earlier statement that ten to twenty years' imprisonment seemed high, Judge McCormick sentenced Shotts to an aggregate 30 1/2 to 133 years' imprisonment. This disparity resulted in part from the Judge's limited information about Shotts' participation in the corruption investigation at the time of his earlier statement and in part because the Judge meted out sentences for each information separately without calculating the aggregate sentence he was imposing. Having doled out sentences for each offense, he explained: “Frankly, it's going to take a calculator for somebody to sit down now and calculate up the total amount of years consecutively [imposed],” and reported that “the clerk will have it ... at some point in time today.” App. at 199. Judge McCormick then discussed the factors that justified the sentence. He described Shotts' lengthy criminal history, his drug abuse, his participation in the prison investigation, and his substantial criminal activity after his release on bail. Shotts filed a motion for reconsideration,¹ which the Court denied except to change one sentence from one to two years' imprisonment to nine to eighteen months. This change had no effect on Shotts' overall time of imprisonment because that sentence ran concurrent to other sentences imposed.

At the resentencing hearing, Aston informed the Court that Shotts wished to file a direct appeal and make a claim of ineffective assistance of counsel against him. Aston was permitted to withdraw, and the Court informed Shotts that new counsel would be appointed. The Court appointed Leslie Uncapher. She never learned about the appointment, as she had withdrawn her name from availability for court appointment prior to being assigned to Shotts' case. Shotts' deadline to file a direct appeal expired on August 16, 2001, without an appeal being filed. In September 2001, the order appointing Uncapher was vacated and James Michael was appointed counsel. Although Michael was instructed to file a direct appeal, he took no action on the case.

B. Shotts' Collateral Challenge

In July 2002, Shotts filed a pro se petition under Pennsylvania's Post Conviction Relief Act (“PCRA”). He claimed seventeen errors, including that both Aston and Michael rendered ineffective assistance of counsel. Due to a series of hearings and appeals on issues of timeliness, Shotts' PCRA claim was not heard on the merits by a PCRA Court until 2007. During that time, three additional counsel—Rachel Morocco, Sharon Wigle, and Patricia Elliot—were appointed to represent Shotts. Morocco and Elliot filed amended PCRA petitions on Shotts' behalf.

All of Shotts' PCRA petitions raised a claim of ineffectiveness against Aston. None of the petitions included a claim against Uncapher. Only Shotts, in his pro se petition, raised a claim against Michael.

On April 18, 2007, Judge Rita Donovan Hathaway, presiding at the “PCRA Court,” held a hearing to consider Shotts' ineffectiveness claim against Aston. He and Shotts both testified. Crediting Aston's testimony and finding Shotts' testimony not credible, Judge Hathaway found that Shotts' plea was knowing, intelligent, and voluntary, and that Aston provided effective representation as counsel in his advice to Shotts before and during the plea and sentencing. She thus denied all PCRA relief.

On appeal to the Pennsylvania Superior Court, Shotts argued that the PCRA Court erred. Specifically, he claimed that Aston failed (1) to obtain any discovery prior to the plea, (2) to advise Shotts properly of the possible range of sentences, (3) by wrongly encouraging Shotts to enter a general guilty plea, and (4) not to object to the filing of separate criminal informations.

The Superior Court affirmed the denial of relief, but on a different ground. It held that Shotts' claim against Aston was defaulted. Under Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977), a petitioner waives an ineffectiveness claim if it is not raised by the first counsel who represents him after the allegedly ineffective counsel. We call this the “Hubbard rule.” It was violated here because counsel following Aston—technically Uncapher, but in practical effect Michael—did not raise any claim of Aston's ineffectiveness.

Even if subsequent counsel does not raise an effectiveness claim, under Hubbard a later counsel may still raise the claim by “layering” ineffectiveness claims against counsel. See Commonwealth v. Grant, 572 Pa. 48, 813 A.2d 726, 733 (2002) (“In the aftermath of Hubbard, the only way to consider claims related to trial counsel's ineffectiveness that were not raised on direct appeal by new counsel was to plead and prove the additional claim of appellate counsel's ineffectiveness, i.e., a layered claim of ineffectiveness.”). Shotts could have gotten at the ineffectiveness of Aston by claiming that each successive attorney was ineffective for failing to challenge the prior attorney's failure to raise the claim ( i.e., Uncapher was ineffective for not raising Aston's ineffectiveness, Michael was ineffective for not raising Uncapher's ineffectiveness, etc.). See Commonwealth v. McGill, 574 Pa. 574, 832 A.2d 1014, 1021–22 (2003) (explaining layered claims). The Superior Court held that Shotts did not preserve this claim. “[He] did not include a challenge to counsel's ineffectiveness for failing to file either a direct appeal or a motion to withdraw his plea in any of his pro se or amended PCRA petitions.” App. at 79 (emphases in original).

On that alternate and procedural basis, the Superior Court concluded that it was “constrained to affirm the order of the trial court dismissing [Shotts'] petition for PCRA relief,” and that “[his] only recourse appears to be in the federal court system.” Id. at 79–80. Shotts' petition for...