Vickers v. Superintendent Graterford SCI

• Citation: 858 F.3d 841
• Decision Date: 06 June 2017
• Docket Number: No. 15-4012,15-4012
• Parties: George T. VICKERS, Jr. v. SUPERINTENDENT GRATERFORD SCI; Attorney General Pennsylvania, Appellants
• Court: U.S. Court of Appeals — Third Circuit

858 F.3d 841

George T. VICKERS, Jr.

v.SUPERINTENDENT GRATERFORD SCI; Attorney General Pennsylvania, Appellants

No. 15-4012

United States Court of Appeals, Third Circuit.

Argued: December 5, 2016

Filed: June 6, 2017

Amended July 18, 2017

George T. Vickers, Jr., Graterford SCI, P.O. Box 244, Graterford, PA 19426, Pro Se

Jerome A. Moschetta [Argued], Washington County Office of District Attorney, 1 South Main Street, Suite 1003, Washington, PA 15301, Counsel for Appellants

David R. Fine [Argued], K&L Gates LLP, 17 North Second Street, 18th Floor, Harrisburg, PA 17101, J. Nicholas Ranjan, K&L Gates LLP, 210 Sixth Avenue, Pittsburgh, PA 15222, Amicus Counsel for Appellee¹

Before: FISHER^* , KRAUSE, and MELLOY^** , Circuit Judges.

OPINION

KRAUSE, Circuit Judge.

Given the fundamental importance of the right to a jury trial in our justice system, many states have promulgated rules, akin to the Federal Rules of Criminal Procedure, prescribing that the waiver of that right be on-the-record and approved by a court before a defendant enters a guilty plea or proceeds by way of non-jury trial. As a general matter, such procedures are diligently followed to ensure a defendant's waiver is knowing and voluntary but, on occasion, there are lapses. In this case, petitioner's counsel discussed with him generally the right to a jury trial but failed to secure an on-the-record waiver or to apprise petitioner of all aspects of his jury trial right before proceeding with a bench trial—conduct the District Court determined established ineffective assistance of counsel under Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and justified the grant of habeas relief.

On appeal by the Commonwealth, we are called upon to decide whether counsel's deficiency on these facts gave rise to structural error, such that Strickland prejudice might be presumed, or whether petitioner is still required to establish prejudice. Because we conclude a showing of prejudice is required, we also have occasion to address the nature of that showing and to modify our holding in United States v. Lilly , 536 F.3d 190 (3d Cir. 2008), in light of intervening Supreme Court precedent. As we hold the proper prejudice inquiry in this situation is whether there is a reasonable likelihood that, but for his counsel's deficient performance, petitioner would have exercised his Sixth Amendment right to a jury trial, and petitioner here has failed to make that showing, we will reverse the judgment of the District Court.

I. Factual Background and Procedural History

Petitioner George Vickers's conviction stems from an incident in which Vickers punched the victim a single time but that punch caused severe injuries. As reflected in the record from his 2009 trial, the victim first encountered Vickers at a bar where Vickers was socializing with the victim's ex-girlfriend. After a brief stay at the bar, the victim left to catch a bus home. While waiting at the bus stop, the victim was "struck from behind" in the "upper neck, shoulder, and back area," which caused him to stumble. App. 38.² Though he did not know who shoved him, as he stumbled, he "looked up" and "saw George Vickers," who was "a step and a half away." App. 38. Within seconds of being shoved, the victim was "struck over his right eye by what he thought was a closed fist" and fell to the ground, unconscious. App. 38. The victim suffered numerous serious injuries, including a fractured skull, brain hemorrhaging, and bruising of the brain, and was in a coma for four days as a result of the blow. Vickers was charged with aggravated assault, recklessly endangering another person, harassment, and disorderly conduct.

The issues on appeal all concern the adequacy of the legal representation Vickers received in connection with the waiver of his right to a jury trial. Pennsylvania law provides that in order for a criminal case to be tried without a jury, "[t]he judge shall ascertain from the defendant whether this is a knowing and intelligent waiver, and such colloquy shall appear on the record. The waiver shall be in writing, made a part of the record, and signed by the defendant, the attorney for the Commonwealth, the judge, and the defendant's attorney as a witness." 234 Pa. Code § 620. Vickers was originally represented by private counsel, and although his case was placed on the Court of Common Pleas calendar as a bench trial, these state-mandated procedures were not followed in Vickers's case. Vickers's private counsel later withdrew from his representation and, just a few weeks before Vickers's bench trial was to commence, an assistant public defender was assigned to the case. Because the case was already calendared as a bench trial, Vickers's new counsel presumed, without confirming, that Vickers had formally waived his right to a jury trial at an earlier point, and the bench trial went forward as scheduled. The judge who presided found Vickers guilty on all counts and sentenced him to seven to fourteen years' imprisonment.

Following his conviction, Vickers filed a petition for relief under Pennsylvania's Post-Conviction Relief Act ("PCRA"). In that petition he claimed, among other things, that he was deprived of effective assistance of counsel because trial counsel "misled [him] on his right to have a jury trial," and failed to "obtain a valid waiver" of that right before proceeding with a bench trial. App. 61, 73. The PCRA Court held an evidentiary hearing, at which Vickers's trial counsel and Vickers testified regarding counsel's representation.

According to the testimony of counsel, when counsel saw the case was already scheduled as a bench trial he "assumed there had been a normal waiver at the bar and whatnot like that," and, based on that assumption, did not conduct any investigation to determine "what, in fact, occurred with regard to the waiver of [Vickers's] jury trial rights." App. 99-100. Counsel also testified, however, that he had spoken with Vickers "generally, about the right to a jury trial," App. 96, that he advised Vickers as to his right to have "12 men and women decide the facts of the case as opposed to a judge deciding the facts, and just the fundamentals," App. 95, and that he understood Vickers to be familiar with the criminal justice system because Vickers informed him that he had been charged with a felony in a neighboring county the previous year. Counsel further testified that he inquired of Vickers every time they spoke, including on the day of the trial, whether Vickers wanted a jury trial or a bench trial, and Vickers consistently wanted to proceed with the scheduled bench trial.

Counsel's testimony also detailed his strategic discussions with Vickers which, in counsel's view, had led Vickers to opt for a bench trial. For example, counsel testified he told Vickers that he believed Vickers's best chance of prevailing on the felony charge of aggravated assault was to emphasize that this was a "one-punch case," and to argue that Vickers did not have the requisite intent to cause the serious bodily injury necessary to support a conviction—a "narrow legal issue"—he told Vickers "might be lost to a panel of jurors," but might be appreciated by a judge who could more reliably "distinguish between the aggravating factors." App. 107, 109. Counsel elaborated that he warned Vickers that there were risks associated with a bench trial because "this courtroom can be a conservative with personal injuries, and that's a judge's prerogative when they listen to the evidence," App. 95, but he ultimately recommended that Vickers pursue a bench trial for strategic reasons. According to counsel, Vickers "never" expressed a preference for a jury trial during these tactical conversations, App. 118, but rather "indicated he wanted to go forward" with a bench trial, App. 95.

Counsel could not recall specifically what he told Vickers about his right to a jury trial and did not state—and was not specifically asked by Vickers's PCRA counsel—if he informed Vickers that any jury verdict would have to be unanimous. Nonetheless, while counsel acknowledged that he "did not go through the whole colloquy form" with Vickers, App. 99, he confirmed that he firmly believed, as a result of his many conversations with Vickers leading up to trial and Vickers's past experience with the criminal justice system, that Vickers was aware of his right to proceed by jury trial instead of a bench trial, "understood the difference between the two," and chose to go forward with a bench trial. App. 100.

Vickers's testimony at the PCRA hearing painted a very different picture. Vickers testified that he "advised [his counsel] during several phone conversations ... that it was [his] intent to take this to a jury trial," App. 139, that he had no understanding at the time of the trial that he was giving up this right, and that he first discovered that he had a constitutional right to a jury trial when doing legal research for his appeal while incarcerated. Before that point, according to Vickers, he mistakenly thought only a majority of the jury was required to return a guilty verdict but, even on that mistaken assumption, he believed this "majority rules" system was preferable to relying on the sole discretion of a judge, App. 140, and would have exercised his right to a jury trial had he been given the opportunity.

On cross-examination, when presented with a guilty plea form that he had signed in 2004 in connection with one of his prior convictions, Vickers acknowledged he had signed the form and had checked the boxes on it that appeared next to each of the rights attendant to a jury trial, but he asserted he had not read the form. That form provided that, by pleading guilty, Vickers was waiving his right to a jury trial and all attendant rights, including the right to have "[a]ll 12 members of the jury finely selected ... be satisfied that the Commonwealth had proven [his] guilt beyond a reasonable doubt on each charge, that is, the...