HomeMy WebLinkAboutCP-21-CR-1118-2005 (2)
COMMONWEALTH OF : IN THE COURT OF COMMON PLEAS OF
PENNSYLVANIA : CUMBERLAND COUNTY, PENNSYLVANIA
:
v. : CHARGE: (1) UNLAWFUL POSSESSION
: WITH INTENT TO DELIVER
: SCHED. II CONT. SUBSTANCE
: (COCAINE)
:
BARBARA J. RAND :
OTN: K130997-6 : CP-21-CR-1118-2005
IN RE: OPINION PURSUANT TO PA. R.A.P. 1925
OLER, J., June 12, 2007.
In this Post Conviction Relief Act matter, Defendant pled guilty in 2005 to
1
unlawful possession with intent to deliver cocaine, a felony. She received an
agreed-upon sentence of not less than 48 months nor more than 96 months in a
2
state correctional institution. No direct appeal was taken from the judgment of
sentence.
On July 24, 2006, Defendant filed a Motion for Post Conviction Collateral
Relief. The relief requested was “[r]elease from custody and discharge” and
3
“[c]orrection of sentence.” The ground for relief asserted was “[a] plea of guilty
unlawfully induced where the circumstances make it likely that the inducement
4
caused the petitioner to plead guilty and the petitioner is innocent.”
Following a hearing at which Defendant claimed that she had been under
5
the influence of cocaine at the time of her guilty plea, that she had not understood
67
that she had a right to a jury trial or that she was presumed innocent, that she had
1
Order of Court, September 12, 2005.
2
Order of Court, October 11, 2005.
3
Defendant’s Motion for Post Conviction Collateral Relief, para. 11.
4
Defendant’s Motion for Post Conviction Collateral Relief, para. 4; see N.T. 3, Hearing, October
23, 2006.
5
N.T. 18, Hearing, October 23, 2006.
6
N.T. 12, Hearing, October 23, 2006.
8
not comprehended the seriousness of the charges, that she had been under the
9
impression she would be released from prison in two years, that her former
10
attorney had pressured her into pleading guilty, and that the cocaine to which her
11
plea related was not hers, the court denied Defendant’s request for post-
12
conviction relief. From this order, Defendant has filed an appeal to the
13
Pennsylvania Superior Court.
The grounds for Defendant’s appeal have been expressed in a statement of
matters complained of on appeal as follows:
The Court erred in denying Defendant’s Post Conviction Relief Act
Petition because:
a. Defendant’s trial counsel failed to have Defendant
sign her guilty plea colloquy which defined what
Defendant’s sentence was agreed to by the
Commonwealth.
b. Evidence was sufficient to show that Defendant
did not comprehend the proceedings around her and
Defendant’s trial counsel represented that she was
14
competent to plead guilty.
This opinion in support of the court’s denial of Defendant’s request for post
conviction relief is written pursuant to Pennsylvania Rule of Appellate Procedure
1925(a).
STATEMENT OF FACTS
As a result of a search of Defendant’s home in Carlisle, Cumberland
15
County, Pennsylvania, on March 18, 2005, Defendant was charged with simple
7
N.T. 13, Hearing, October 23, 2006.
8
N.T. 13, 33, Hearing, October 23, 2006.
9
N.T. 33, Hearing, October 23, 2006.
10
N.T. 12, Hearing, October 23, 2006.
11
N.T. 35, 38-39, 42, Hearing, October 23, 2006.
12
Order of Court, March 1, 2007.
13
Defendant’s Notice of Appeal, filed March 29, 2007.
14
Defendant’s Concise Statement of Matters Complained of on Appeal, filed April 11, 2007.
15
See Search Warrant and Return of Service and Inventory.
2
16
possession of marijuana and possession with intent to deliver cocaine. The latter
charge was an ungraded felony under Pennsylvania’s Controlled Substance, Drug,
Device and Cosmetic Act, carrying penalties in the form of a prison sentence of up
17
to ten years and a fine of up to $100,000.00. Because the amount of cocaine was
in excess of 100 grams, a mandatory minimum sentence in the form of a fine of at
least $25,000.00 and a minimum period of imprisonment of at least four years was
18
applicable to the offense.
Defendant pled guilty, pursuant to a plea bargain, to the charge of
possession with intent to deliver cocaine, on September 12, 2005, in satisfaction of
19
both charges. The facts in support of the plea, which Defendant agreed were
20
true, were recited by the prosecuting attorney as follows:
. . . [O]n Friday, 18 March 2005, police officers from Carlisle
Borough Police Department and the Office of Attorney General, the
Commonwealth of Pennsylvania[,] executed a search warrant at Ms.
Rand’s residence at 160 East North Street in the Borough of Carlisle.
During that search warrant they discovered an amount of cocaine that was
later tested positive for cocaine and weighed 300 grams.
In addition to that substantial amount of cocaine, there were other
indic[i]a of drug sales, such as surveillance equipment, scales, implements
with which to cut and divide the drugs. The Defendant, when she was
confronted, indicated to the police, you got me, you got me good. Those
facts would make out the charge of Possession [w]ith Intent [T]o Deliver a
21
Schedule II Controlled Substance.
The plea bargain between the Commonwealth and Defendant was based on
(a) the Commonwealth’s non-pursuit of the marijuana charge, its non-pursuit of
the mandatory fine applicable to the offense, and its willingness to accept a
16
Criminal Complaint, filed March 23, 2005.
17
Act of April 14, 1972, P.L. 233, §13(f)(1.1), as amended, 35 P.S. §780-113(f)(1.1) (2006
Supp.).
18
Act of March 25, 1988, P.L. 262, §13, as amended, 18 Pa. C.S. §7508(a)(3)(iii) (2006 Supp.);
Commonwealth’s Notice of Mandatory Sentence, filed June 22, 2005.
19
Order of Court, September 12, 2006.
20
N.T. 3, Guilty Plea Colloquy, September 12, 2005.
21
N.T. 2-3, Guilty Plea Colloquy, September 12, 2005.
3
22
maximum sentence of two years less than that authorized by statute, as well as its
23
agreement to forgo prosecution of her on a new set of similar criminal offenses,
24
and (b) Defendant’s agreement to accept the minimum four-year sentence.
In connection with the guilty plea colloquy, Defendant executed a written
guilty plea colloquy form, specifically acknowledging, inter alia, her
understanding that she “ha[d] a right to a trial by a jury of 12 people,” that she was
“presumed innocent until the Commonwealth prove[d] every element of each
offense beyond a reasonable doubt,” that she could not be convicted unless “all 12
jurors . . . agree[d] unanimously as to [her] guilt beyond a reasonable doubt of
each and every element of the crimes charged,” that “[b]y pleading guilty . . . [she
was] admitting that [she] committed the crime,” and that “[t]he decision to plead
25
guilty [was her] decision and not [her] lawyer’s decision [to make].” In this
form, Defendant also specifically acknowledged that no “threats or promises [had]
been made to [her] to persuade [her] to enter a plea of guilty (other than [the] plea
agreement that ha[d] been negotiated for [her])” and that she had “read the [form]
26
and [she] underst[oo]d it.”
The written guilty plea colloquy form consisted of two parts. The first part
recited the charges against Defendant, indicated that she was pleading guilty to the
count relating to unlawful possession with intent to deliver in satisfaction of both
27
charges, and noted that the penalty agreed upon was a “4-8 sentence.” The
second part, comprising two pages, provided specific information relating to guilty
28
pleas, including that referred to in the preceding paragraph of this opinion.
22
N.T. 2, Guilty Plea Colloquy, September 12, 2005.
23
N.T. 9-10, Hearing, February 28, 2007.
24
N.T. 3-4, Guilty Plea Colloquy, September 12, 2005.
25
Defendant’s Ex. 1 (Guilty Plea Colloquy Form), Hearing, October 23, 2006.
26
Defendant’s Ex. 1 (Guilty Plea Colloquy Form), Hearing, October 23, 2006.
27
Defendant’s Ex. 2 (Guilty Plea Colloquy Form), Hearing, October 23, 2006.
28
Defendant’s Ex. 1 (Guilty Plea Colloquy Form), Hearing, October 23, 2006.
4
With respect to the second part of the form, Defendant acknowledged in
writing her understanding of each informational paragraph, initialed the first page,
29
and signed her name at the end of the second. With respect to the first part of the
form, memorializing the terms of the plea, it appears that the prosecutor
inadvertently signed his name in the place provided for the defendant’s
30
signature.
The oral guilty plea colloquy between Defendant and the court included the
following exchange:
THE COURT: All right. Ms. Rand, you have heard the
statements of the District Attorney as to what is alleged to have happened.
If those statements are true and you did possess the cocaine with the intent
to deliver it, that would make out the offense of Possession [w]ith Intent
To Deliver. Are you satisfied that that is what happened?
31
THE DEFENDANT: Yes, Your Honor.
In the oral colloquy, Defendant also acknowledged her understanding that the
sentence as agreed upon “would be not less than 48 months in jail nor more than
32
96 months.”
Defendant’s prior record included three convictions for drug offenses, and
33
one for simple assault. As agreed upon, the sentence to be imposed was at the
34
bottom of the standard range of the sentencing guidelines.
On October 11, 2005, Defendant was sentenced in accordance with the plea
35
bargain. At the sentencing proceeding, the court explicitly reviewed Defendant’s
36
post-sentence rights with her.
29
Defendant’s Ex. 1 (Guilty Plea Colloquy Form), Hearing, October 23, 2006; N.T. 9-10,
Hearing, October 23, 2006.
30
Defendant’s Ex. 2 (Guilty Plea Colloquy Form), Hearing, october 23, 2006; N.T. 10-11,
Hearing, October 23, 2006.
31
N.T. 3, Guilty Plea Colloquy, September 12, 2005.
32
N.T. 4, Guilty Plea Colloquy, September 12, 2005.
33
Commonwealth’s Ex. 8 (presentence investigation report), Hearing, February 28, 2007.
34
See Guideline Sentence Form, filed December 14, 2005.
35
Order of Court, October 11, 2005.
5
Neither a timely post-sentence motion nor a direct appeal was filed
following the judgment of sentence. On December 20, 2005, Defendant filed a
motion for “Reconsideration of Sentence Nunc pro Tunc,” requesting to be
37
paroled to “long term intensive inpatient” treatment, followed by “house arrest.”
The motion did not allege that Defendant’s plea had been invalid in any respect,
38
and it was denied as untimely and beyond the court’s jurisdiction. No appeal
was taken from this order.
On April 24, 2006, Defendant filed a Motion for Modification of Sentence
Nunc pro Tunc, premising the court’s jurisdiction on the assertion that she had not
been advised at the time of sentencing of her right to move for a modification of
39
the sentence. This motion was denied as being patently inconsistent with the
40
transcript of the sentencing proceeding. No appeal was taken from this order.
Defendant’s Motion for Post Conviction Collateral Relief, which is the
subject of this opinion, was filed on July 24, 2006. A hearing, in which Defendant
and her court-appointed counsel participated, was held on October 23, 2006, and
February 28, 2007.
At the hearing, Defendant presented her own testimony to the effect that
41
she had been under the influence of cocaine at the time of her guilty plea, that
42
she had not understood that she had a right to a jury trial or that she was
43
presumed innocent, that she had been under the impression she would be
36
N.T. 4-5, Sentencing Proceeding, October 11, 2005.
37
Defendant’s motion for “Reconsideration of Sentence Nunc pro Tunc,” filed December 20,
2005.
38
Order of Court, January 20, 2006.
39
Defendant’s Motion for Modification of Sentence Nunc pro Tunc, filed April 24, 2006.
40
Order of Court, April 27, 2006.
41
N.T. 18, Hearing, October 23, 2006.
42
N.T. 12, Hearing, October 23, 2006.
43
N.T. 13, Hearing, October 23, 2006.
6
44
released from prison in two years, that her former attorney had pressured her into
4546
pleading guilty, and that the cocaine to which her plea related was not hers.
47
She conceded, however, that the cocaine had been found in her bedroom and that
48
she had known that she was “pleading guilty to a minimum of four years.”
The Commonwealth presented the testimony of her former counsel, a
49
highly experienced private criminal defense attorney, which basically refuted
50
Defendant’s testimony. The Commonwealth also presented evidence in the form
5152
of transcripts of her guilty plea and sentencing proceeding, as well as testimony
53
of the affiant in the case and of Defendant’s presentence investigator.
In its capacity as fact-finder, the court did not find Defendant’s testimony
credible on the material points of her claim and found the testimony of
Defendant’s former counsel believable in all respects. While not unsympathetic to
54
Defendant’s plight in terms of the length of her sentence, the court did not
44
N.T. 33, Hearing, October 23, 2006.
45
N.T. 12, Hearing, October 23, 2006.
46
N.T. 35, 38-39, 42, Hearing, October 23, 2006.
47
N.T. 40, Hearing, October 23, 2006.
48
N.T. 33, Hearing, October 23, 2006.
49
N.T. 65, Hearing, October 23, 2006.
50
See, e.g., N.T. 44-46, 48, 53, 55, 61, Hearing, October 23, 2006 (under-influence-of-cocaine
issue); N.T. 50, Hearing, October 23, 2006 (comprehension of seriousness of charges); N.T. 51,
61, Hearing, October 23, 2006 (claim of no involvement with drugs allegedly possessed); N.T.
59, Hearing, October 23, 2006 (comprehension of plea bargain and length of sentence agreed
upon); N.T. 57-58, Hearing, October 23, 2006 (right to release in two years); N.T. 6, Hearing,
February 28, 2007 (claim of no involvement with drugs allegedly possessed); N.T. 8-9, Hearing,
February 28, 2007 (pressure to plead guilty); N.T. 12-13, Hearing, February 28, 2007
(comprehension of plea bargain and length of sentence agreed upon).
51
Commonwealth’s Exhibit 6, Hearing, October 23, 2006.
52
Commonwealth’s Exhibit 7, Hearing, October 23, 2006.
53
N.T. 22 et seq., February 28, 2007; N.T. 28 et seq., February 28, 2007.
54
The court expressed this sentiment at the time of sentencing. N.T. 3, Sentencing Proceeding,
October 11, 2005.
7
believe that Defendant’s plea of guilty had been unlawfully induced or that the
circumstances suggested that Defendant was innocent.
Following the hearing, the order denying Defendant’s motion for post-
conviction relief was issued on March 1, 2007. Defendant’s appeal from the order
55
was filed on March 29, 2007.
DISCUSSION
Statement of law. Under the Post Conviction Relief Act, a ground for relief
which may be pursued by a person convicted of a crime is that his or her
conviction resulted in “[a] plea of guilty unlawfully induced where the
circumstances make it likely that the inducement caused the [person] to plead
guilty and the [person] is innocent.” Act of May 13, 1982, P.L. 417, §2, as
amended, 42 Pa. C.S. §9543(a)(2)(iii). In such a proceeding, the burden of proof
is upon the petitioner to prove the claim which entitles him or her to relief by a
preponderance of the evidence. Id., §9543(a).In its capacity as trier-of-fact, the
hearing court is free to believe all, part or none of the evidence presented. See
Commonwealth v. Carelli, 377 Pa. Super. 117, 129 n.1, 546 A.2d 1185, 1191 n.1
(1988).
A plea of guilty has been entered validly if the defendant entered the plea
knowingly, intelligently, and voluntarily. See, e.g., Commonwealth v. Roundtree,
440 Pa. 199, 202, 269 A.2d 709, 711 (1970) (citing Commonwealth v. Cottrell,
433 Pa. 177, 178, 249 A.2d 294, 294 (1969)). It is recognized that, “[b]ecause of
the serious consequences which are attendant on the entry of a plea of guilty, strict
adherence must not be had to the rule that knowledge of counsel is imputable to
the accused.” Commonwealth ex rel. McKenna v. Cavell, 423 Pa. 387, 393, 224
A.2d 616, 619 (1966) (citing Commonwealth ex rel. West v. Myers, 423 Pa. 1, 6,
222 A.2d 918, 921 (1966)). Several factors are considered by courts in
determining whether a defendant enters a plea knowingly, intelligently, and
55
Defendant’s Notice of Appeal, filed March 29, 2007.
8
voluntarily. First, although there is little case law that addresses the role of drugs
or alcohol in relation to a defendant’s ability to enter a guilty plea, the Superior
Court of Pennsylvania has considered this factor as one of several criteria in
determining if a defendant entered a guilty plea knowingly, intelligently, and
voluntarily. See Commonwealth v. Lewis, 430 Pa. Super. 336, 341, 634 A.2d 633,
,
635 (1993); see also Commonwealth v. Jones, 408 Pa. Super. 337 341,596 A.2d
885, 887(1991). Where it is found that a defendant was not under the influence of
drugs or alcohol at the time the guilty plea was entered, obviously this ground for
relief from the plea will not be available. See Lewis, 430 Pa. Super. at 341, 634
A.2d at 635.
Second, if a defendant did not have adequate knowledge of the entry of the
guilty plea, meaning the defendant did not fully understand “the meaning of the
guilty plea”, see Roundtree, 440 Pa. at 205, 269 A.2d at 712, or the defendant did
not have knowledge of the consequences of entering the guilty plea, see
Commonwealth ex rel. Henderson v. Maroney, 448 Pa. 411, 414, 293 A.2d 64, 66
(1972), then the defendant did not enter the plea knowingly, intelligently, and
voluntarily. However, a defendant, who enters a guilty plea and has knowledge of
the right to a jury trial, will not prevail on the argument that he or she was unaware
of the consequences of the guilty plea in terms of the right to a jury trial. Id.
Finally, a defendant who is improperly induced by his or her counsel to
enter a guilty plea does not enter that plea knowingly, intelligently, and
voluntarily. See, e.g, Commonwealth v. Patterson, 456 Pa. Super. 202, 205, 690
A.2d 250, 252 (1997). A defendant is improperly induced by his or her counsel if
the information given to the defendant by counsel is materially inaccurate, see
Cavell, 423 Pa. at 392-94, 224 A.2d at 619, or materially inadequate, see
Patterson, 456 Pa. Super. at 206-07, 690 A.2d at 252-53. Specifically, if a
defendant is “misinform[ed]” or given “improper advice” regarding the nature or
consequences of a guilty plea by his or her counsel, then the defendant may be
9
considered to have been “coerced” or improperly induced by his or her counsel to
enter a guilty plea. Cavell, 423 Pa. at 392-94, 224 A.2d at 619. On the other
hand, if a defendant’s counsel informs the defendant of the risk he or she is taking
by entering a guilty plea, and the defendant acknowledges receiving this warning,
then the guilty plea is not unlawfully induced because there is no claim of arguable
merit. Patterson, 456 Pa. Super. at 206-07, 690 A.2d at 252-53. As a general rule,
“in order to prevail [in proving that a guilty plea was unlawfully induced], . . . [a
defendant] must demonstrate that the underlying claim is of arguable merit, that
counsel's actions had no reasonable basis designed to effectuate his [or her]
interests, and that counsel's actions prejudiced . . . [the defendant].” Id. at 205-06
(citing Commonwealth v. Howard, 538 Pa. 86, 93, 645 A.2d 1300, 1304 (1994);
Commonwealth v. Correa, 444 Pa. Super. 621, 625, 664 A.2d 607, 609 (1995)).
In summary, in order to determine whether a guilty plea has been validly
entered, it must be determined whether the defendant entered the plea knowingly,
intelligently, and voluntarily. A plea may be entered knowingly, intelligently, and
voluntarily, if the defendant is not under the influence of a substance, the
defendant knows that he or she entered a guilty plea and understands the
consequences thereof, and the defendant is given accurate and adequate
information by his or her counsel regarding the guilty plea.
Application of law to facts. In the present case, the court did not find
credible Defendant’s uncorroborated testimony that she had been under the
influence of cocaine when she pled guilty, that she had not understood the terms of
her plea bargain, that she did not understand her various rights, that her attorney
had pressured her into pleading guilty, or that she was innocent of the crime
charged. In this regard, the court found persuasive the testimony of Defendant’s
former counsel to the contrary, and relied as well upon the contents of the
transcribed guilty plea and sentencing proceedings, and the guilty plea colloquy
form, indicative of Defendant’s comprehension of her plea and her rights. The
absence of Defendant’s signature on the portion of the guilty plea colloquy form
10
memorializing the agreement as to sentence, while regrettable, did not negate the
effect of the other evidence tending to show that she fully comprehended the
arrangement in this respect.
For the foregoing reasons, the court issued the order denying Defendant’s
request for post conviction relief, from which she has appealed to the
Pennsylvania Superior Court.
BY THE COURT,
_________________
J. Wesley Oler, Jr., J.
Michelle H. Sibert, Esq.
Chief Deputy District Attorney
Michael Halkias, Esq.
Assistant Public Defender
11