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HomeMy WebLinkAbout95-1590/96-0190 criminalCOMMONWEALTH Ve DARYL EUGENE SMITH · IN THE COURT OF COMMON PLEAS OF · CUMBERLAND COUNTY, PENNSYLVANIA '. · · NO. 95-1590 CRIMINAL TERM · NO. 96-0190 CRIMINAL TERM IN RE: POST CONVICTION RELIEF ACT PETITION BEFORE GUIDO, J, ORDER OF COURT _ AND NOW, this ~ '~ ~X day of AUGUST, 1999, after evidentiary heatings, and after having reviewed the briefs of the parties, Petitioner's requests for relief under the Post Conviction Relief Act are DENIED. By the Edward E. Guido, J. Jaime M. Keating, Esquire For the Commonwealth James K. Jones, Esquire For the Defendant 'sld COMMONWEALTH Ve DARYL EUGENE SMITH · IN THE COURT OF COMMON PLEAS OF · CUMBERLAND COUNTY, · PENNSYLVANIA · NO. 95-1590 CRIMINAL TERM · NO. 96-0190 CRIMINAL TERM IN RE: POST CONVICTION RELIEF ACT PETITION BEFORE GUIDO, OPINION AND ORDER OF COURT In August of 1998 the Defendant filed a petition under the Post Conviction Relief Act (42 Pa. C.S.A. {} 9541, et seq). We appointed counsel to represent him. Various supplemental petitions and motions were filed by counsel and Defendant. An evidentiary heating was held before this Court on November 4, 1998. At his request Petitioner was given the opportunity to file a supplemental petition and to request another evidentiary heating if needed. Petitioner, through counsel, requested a supplemental evidentiary heating which was held on April 28, 1999. At that heating the Petitioner was given the opportunity to raise any additional issues he wished for us to address.~ Petitioner's request for relief is based upon the alleged ineffectiveness of his trial counsel. Specifically, he alleges that his trial counsel was ineffective in the following: 1) In allowing him to plead guilty to possession of cocaine which was found in the pocket of his co-defendant. ~ Numerous post hearing motions and petitions were filed by Defendant, all of which were returned to him pursuant to Pa. Rule of Civil Procedure 9022. 95-1590 CRIMINAL - 96-0190 CRIMINAL 2) In failing to insist that the two charges against him be consolidated before the same judge. 3) In failing to assure that he got proper credit at sentencing for his cooperation with the Attorney General's Office. 4) In promising him that he would get no more than three (3) years in prison if he pleaded guilty to the charges against him. 5) In failing to object to the District Attorney's representation to the sentencing judge that a five year mandatory sentence applied at 95-1590 when, in fact, the notice of mandatory sentence had been withdrawn at the entry of the guilty plea. 6) In failing to challenge the propriety of the criminal complaint, the arrest procedure, or the validity of the various warrants issued for the surveillance and/or arrest of the Petitioner. Both the Commonwealth and the Petitioner have filed briefs in support of their respective positions. This matter is now ready for disposition. FACTUAL BACKGROUND Petitioner was charged at 95-1590 with possession of cocaine with intent to deliver (hereafter "the possession charge"). On January 25, 1996 he entered a guilty plea to this charge before the Honorable George E. Hoffer. As part of the guilty plea colloquy the Commonwealth recited the factual basis for the plea as follows: Factually what happened is on August 30, 1995, the Th-County Drug Task Force conducted an investigation, which led to an arrest warrant being issued on that-date for the arrest of the defendant. He was observed driving a car which police had probable cause to believe was transporting cocaine. He was stopped and arrested. He was the driver, and the passenger was Allen Anderson, co-defendant. On the person of Allen Anderson was approximately an ounce and a half, precisely approximately forty grams of cocaine. Mr. AndersOn pled guilty earlier this week to a three year mandatory sentence. This 95-1590 CRIMINAL - 96-0190 CRIMINAL defendant, Daryl Smith, is pleading guilty today, were drugs in the car and transporting them.2 knowing that there After the Commonwealth recited the above factual basis for the plea, the following exchange took place between Judge Hoffer and the Petitioner: THE COURT: The D.A. says that on August 30, 1995, that you were driving a car and transporting your friend who had forty grams of cocaine on him for the purpose of delivering or selling these - that cocaine to someone else, and that you knew what was going on. Do you understand what I am saying? THE DEFENDANT: Yes, sir. THE COURT' Is that what happened? THE DEFENDANT: Yes, sir.3 Although that charge called for a mandatory minimum sentence of five (5) years, the Commonwealth withdrew the notice of mandatory sentence pursuant to a plea agreement.4 Petitioner was also charged at 96-0190 with unlawful delivery of cocaine, (hereinafter" the delivery charge"), arising from an incident that occurred on August 17, 1995. On July 2, 1996 he entered a guilty plea to that charge before the Honorable Harold E. Sheely, P.J. He was advised that the charge carded a mandatory minimum sentence of five (5) years. At the guilty plea colloquy the following exchange took place between the Petitioner and the Court: This is a serious sentence, and I just want to make certain that this is what you want to do, that you want to enter a plea of guilty. Now, I'll ask you now, sir, did you, in fact, sell these 27 grams of cocaine for $1,000.00 to this undercover person? 2 January 25, 1996 Guilty Plea Colloquy p. 2. 3 January 25, 1996 Guilty Plea Colloquy p. 3-4. 4 January 25, 1996 Guilty Plea Colloquy p. 2. 95-1590 CRIMINAL - 96-0190 CRIMINAL THE DEFENDANT: Yes, sir. THE COURT' You did do that? THE DEFENDANT: Yes, sir.~ Darrell Dethlefs, Esquire was appointed to represent the Petitioner on both sets of charges prior to the preliminary heatings. After consultation with counsel, Petitioner decided that the best course of action would be to cooperate with authorities in the hopes of getting a more lenient sentence.6 His counsel negotiated such an agreement whereby the Commonwealth would agree not to seek the mandatory sentences if the Petitioner cooperated.7 This led to the entry of the guilty plea on January 25, 1996 to the possession charge.8 The Petitioner's cooperation was less than satisfactory.9 He then became a ~0 After his return, the authorities were no longer interested in his cooperation.~ fugitive. We logically infer from the testimony of Mr. Dethlefs and the entries on the docket that the information on the delivery charge was not filed until after the sincerity of Petitioner's cooperation had been questioned.~2 Prior to Petitioner pleading guilty to the delivery charge, he was advised by counsel that the Commonwealth would be seeking the five (5) year mandatory sentence on both the possession charge and the delivery charge. However, the Commonwealth was willing to agree that the sentences would be 13 concurrent. 5 July 2, 1996 Guilty Plea Colloquy p. 7-8. 6 Transcript of November 4, 1998 proceeding, p. 14-16. 7 Transcript of November 4, 1998 proceeding, p. 14-16, 21. 8 Transcript of November 4, 1998 proceeding, p. 14-16. 9 Transcript of November 4, 1998 proceeding, p. 14. ~0 Transcript of November 4, 1998 proceeding, p. 14. ~ Transcript of November 4, 1998 proceeding, p. 15. 12 The information in connection with the delivery charge was filed on March 27, 1996, two months after Defendant's guilty plea to the possession charge. ~3 Transcript of November 4, 1998 proceeding p. 21. 95-1590 CRIMINAL - 96-0190 CRIMINAL Petitioner appeared for sentence on each charge on September 8, 1997. He first appeared before President Judge Sheely for sentencing on the delivery charge. He received a sentence of 5-20 years on that charge. When he appeared before Judge Hoffer for imposition of sentence on the possession charge, the District Attorney informed the Court that a mandatory five (5) year sentence was applicable.14 However, he requested that the Petitioner receive a 5-20 year sentence to mn concurrent with that imposed by ~5 Judge Hoffer imposed the requested sentence. Judge Sheely on the delivery charge. DISCUSSION Petitioner's claims for relief revolve around the alleged ineffectiveness of his trial counsel. In order for him to be eligible for relief under the PCRA he must plead and prove by a preponderance of the evidence that his conviction resulted from' Ineffective assistance of counsel which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place. 42 Pa. C.S.A. {} 9543 (a)2(ii). The Pennsylvania Supreme Court has recently interpreted this section as requiting the petitioner to show: (1) that the claim is of arguable merit; (2) that counsel had no reasonable strategic basis for his or her action or inaction; and, (3) that, but for the errors and omissions of counsel, there is a reasonable probability that the outcome of the proceedings would have been different. Where the petitioner has demonstrated that counsel's ineffectiveness has created a reasonable probability that the outcome of the proceedings would have been different, then no reliable adjudication of guilt or innocence could have taken place. _Com. v. Kimball, 555 Pa. 299, 724 A.2d 326, 333 (1999). Transcript of Sentencing Colloquy before Judge Hoffer, p. 2. Transcript of Sentencing Colloquy before Judge Hoffer, p. 2. 95-1590 CRIMINAL - 96-0190 CRIMINAL Applying the above law to the instant case, we are satisfied that Petitioner is not entitled to relief since none of his claims are of arguable merit. Furthermore, we can find no fault with Mr. Dethlefs representation. Interestingly, we are convinced that Petitioner was also satisfied with Mr. Dethlefs representation. As he stated in a letter to his counsel after he was settled into his new home at the state correctional institution' First on this agenda I would like to say how pleased I was with your representation. Now lets move on to my situation at hand, ... I'm not able to receive any pre-release or half way house programs when I get half my minimum .... My question to you, is there any way you can get my sentence to remain the same but have the mandatory dropped?~6 Nevertheless, we will discuss each of his claims. We will address Petitioner's first and fourth claims together. He alleges that he was induced to plead guilty to the possession charge on the promise that he would receive a three (3) year sentence. He further alleges that he was innocent of that charge. These allegations, if proven, would entitle Petitioner to relief pursuant to 42 Pa. C.S.A. § 9543(a)(iii). That section of the PCRA mandates relief if Petitioner is able to prove that the guilty plea was unlawfully induced and he is innocent. However, Petitioner has not proven either of those allegations. Based upon the testimony of trial counsel, as well as the post sentence letter to counsel referred to above, we do not believe Petitioner's allegation that his guilty pleas were based upon a promise that he would receive a three (3) year sentence. As a result, we are satisfied that the pleas were not improperly induced. Furthermore, his protestations of innocence on the possession charge are without basis. He admitted to his counsel and the judge that he was aware of the Commonwealth Exhibit 1. 95-1590 CRIMINAL - 96-0190 CRIMINAL presence of the cocaine and that he was transporting it for resale. These admissions, at the very least, establish Petitioner's constructive possession of the cocaine. ~ ~ Macolino, 503 Pa. 201,469 A.2d 132 (1983) (joint control over cocaine is possible)~7 and Corn, v. Woody, 451 Pa. Super. 324, 679 A.2d 817 (1996) ( constructive possession of cocaine by occupant of vehicle). Petitioner next alleges that counsel was ineffective for failing to have the same · . judge sentence him on both charges. This claim is also without merit. The possession charge and the delivery charge had no relation to each other, other than the fact that Petitioner was charged with drug trafficking in each. The incidents occurred weeks apart and involved distinctly separate conduct. The guilty plea to the possession charge was entered months before the information on the delivery charge was filed. We are aware of no authority which would entitle Petitioner to be sentenced by the same judge on both charges. Furthermore, since the eventual sentences were identical and ran concurrent to each other, we cannot see how having the same judge impose both sentences would have made any difference. Petitioner's claim that counsel was ineffective for failing to assure that he got proper credit for his cooperation is not supported by the facts. Petitioner did not uphold his end of the plea agreement. Whatever cooperation he gave to the authorities was woefully inadequate. (He even became a fugitive for a period of time). His counsel salvaged what he could from the original plea agreement by obtaining a commitment from the Commonwealth that the mandatory sentences would run concurrent on both charges. The sentencing judges were fully aware of the facts and the Petitioner got all of the credit to which he was entitled for his limited cooperation. 17 He also told his counsel that his co-defendant was no~ aware of the cocaine. 7 95-1590 CRIMi~AL - 96-0190 CRIMINAL In the same vein, Petitioner alleges that counsel erred in allowing him to be sentenced to a mandatory five (5) year sentence on the possession charge, when notice of mandatory sentence had been withdrawn at the time he entered his guilty plea. However, we are satisfied that the Petitioner was advised well in advance of sentence that the Commonwealth would be seeking the five (5) year mandatory because of his breach of the plea agreement. Therefore, the District Attorney's representation to the sentencing judge that the five (5) year mandatory sentence applied was appropriate. See ~ Bamvak, 639 A.2d 40 (Pa. Super. 1994). The fact that Petitioner did not question his counsel as to the application of the five (5) year mandatory bolsters our conclusion that he was well aware that he would be receiving concurrent five (5) year minimum sentences on each charge.~8 Finally, the Petitioner presented no credible evidence to bolster his claim that his arrest, the complaint, or the various warrants authorizing surveillance were improper. All appear to be proper on their face. Therefore, this claim must also fail. For the reasons stated above, Petitioner's requests for relief under the Post Conviction Relief Act must be denied. ORDER AND NOW, this 27TH day of AUGUST, 1999, after evidentiary heatings, and ~8 Furthermore, the Petitioner does not question the appropriateness of the five (5) year mandatory minimum sentence on the delivery charge. Since the sentences are concurrent, we fail to perceive how the outcome would be different. 95-1590 CRIMINAL - 96-0190 CRIMINAL after having reviewed the briefs of the parties, Petitioner's requests for relief under the Post Conviction Relief Act are DENIED. By the Court, /s/Edward E. Guido Edward E. Guido, J. Jaime M. Keating, Esquire For the Commonwealth James K. Jones, Esquire For the Defendant :sld