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HomeMy WebLinkAboutCP-21-CR-0434-2003 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : TWAIWIN EUGENE REID : CP-21-CR-0434-2003 IN RE: PETITION FOR POST-CONVICTION RELIEF OPINION AND ORDER OF COURT Bayley, J., September 7, 2007:-- Twaiwin Eugene Reid was charged on an information with the following offenses December 6, 2002 occurring on : (1) Criminal attempt to criminal homicide, 18 Pa.C.S. Section 901, a felony in the first degree. (2) Aggravated assault, 18 Pa.C.S. Section 2702(a)(1), a felony in the first degree. (3) Burglary, 18 Pa.C.S. Section 3502, a felony in the first degree. (4) Two counts of criminal trespass, 18 Pa.C.S. Section 3503(a), one a felony in the second degree and the other a felony in the third degree. October 23, 2003 On , defendant entered a plea of nolo contendere to the count of attempted criminal homicide in full satisfaction of all of these charges and in full satisfaction of the following charges on other dockets: (1) 03-0431, criminal trespass, occurring on November 11, 2002, 18 Pa.C.S. Section 3503(a)(1)(ii), a felony in the second degree. CP-21-CR-0434-2003 (2) 03-0432, loitering and prowling at night time, occurring on December 6, 2002, 18 Pa.C.S. Section 5506, a misdemeanor in the third degree. (3) 03-0433, simple assault, 18 Pa.C.S. Section 2701(a)(1), a misdemeanor in the second degree; criminal trespass, 18 Pa.C.S. Section 3503(a)(1)(ii), a felony in the second degree; and criminal mischief, 18 Pa.C.S. Section 3304(a)(2), a summary offense, all occurring on August 14, 2001. The plea colloquy, at which the Commonwealth was represented by a District Attorney, David Freed, and defendant was represented by private counsel, Christopher J. Marzzacco, reflects the following: THE COURT: So the one we are doing we are going to take a plea to one count of attempted criminal homicide graded? MR. FREED: A felony of the first degree. THE COURT: The maximum penalty is? MR. FREED: Forty years and a $50,000.00 fine. THE COURT: Facts. MR. FREED: Your Honor, it’s my understanding that the defendant desires to enter a plea of no contest. That’s part of the agreement in this case. Knowing that, what I will present now is the facts that the Commonwealth would present at trial were this matter to go to trial. THE COURT: All right. th MR. FREED: On December 6 of 2002, at around 7:58 a.m., Jennifer Smith was at her residence in Middlesex Township, which is located in a trailer park in the township. She received – or heard her telephone ring, was engaged in other activities in the house and didn’t pick up the phone. Very shortly thereafter the evidence would show that the defendant entered Jennifer Smith’s residence. The encounter there led the defendant to attack her with a knife. She was stabbed multiple times, and ultimately her throat was slashed. I believe there was 11 separate stab wounds and the slashed throat. The defendant fled after that happened. Miss Smith was able to make her way a short distance across the -2- CP-21-CR-0434-2003 street to a neighbor’s house. The neighbor called for medical attention. A helicopter came, and she was transported to Hershey Medical Center where she underwent several surgeries and ultimately recovered, although she is still treating, and there is a possibility that she may need an additional surgery. Returning back to the area of the incident, the trailer park in Middlesex Township, the defendant was apprehended a couple of hours later in the vicinity of where this took place, in fact, several trailers away. At the time that he was arrested certain evidence was seized from him, including a Nextel cellular telephone. A later check of the records of that cell phone show that that phone made a call to Jennifer Smith’s th residence, the victim in this case, at 7:58 a.m. on December 6, 2002. In addition, the defendant was seen by a neighbor of Jennifer Smith in the vicinity of her residence. THE COURT: Does your client wish to tender a plea of nolo contendere? MR. MARZZACCO: That is correct, Your Honor . . . THE COURT: Attempted criminal homicide. An attempt is an intention to do something, and in this case, attempted criminal homicide, the Commonwealth to prove that offense against you, would have to prove that you intended to kill this victim, that you attempted to do so but that you were unsuccessful in doing so. As the District Attorney indicated, that is a felony in the first degree. It does carry a maximum penalty of 40 years imprisonment and a fine. If you enter a plea of nolo contendere, I will have a presentence investigation done by my probation office. I will then bring you back, and I will sentence you. Sentencing will be at my discretion under the law and the facts of the case as it is presented to me.1 (Emphasis added.) After explaining the difference between a plea of nolo contendere and a plea of guilty, the court stated: Knowing what I just told you, do you wish to tender a plea of nolo contendere to a count of attempted criminal homicide, a felony in the first __________ 1 At the post-conviction hearing which is the subject of this proceeding, petitioner testified that he knew when he entered his plea of nolo contendere that the victim had picked him out of a lineup as the perpetrator, and that she had identified him as the perpetrator at a prior hearing. -3- CP-21-CR-0434-2003 degree? THE DEFENDANT: Yes, I do. . . . -4- CP-21-CR-0434-2003 Following the receipt of a pre-sentence investigation, defendant was sentenced on December 16, 2003, for attempted criminal homicide to pay the costs of prosecution, make restitution to Jennifer Smith in the amount of $250.00, State Farm Insurance Company in the amount of $14,105.71, Pennsylvania Commission on Crime and Delinquency in the amount of $10,156.90, and undergo imprisonment in a state correctional institution for a term of not less than 18 years nor more than 40 years, to 2 date from December 7, 2002. Defendant filed a post-sentence motion seeking to modify his sentence. He averred that the sentence “beyond the statutory maximum of twenty years was impermissible because the Commonwealth failed to plead in the criminal information January 14, 2004 any fact justifying such an increase in sentence.” On , the following order was entered: “[u]pon finding that defendant was sentenced within the maximum penalty range of 18 Pa.C.S. Section 1102(c), his petition to modify sentence on his __________ 2 The sentence was a Pennsylvania standard guideline range sentence, the standard minimum range being 96-240 months. Defendant had an offense gravity score of 14. His prior criminal record consisted of convictions for retail theft in 1993, violation of the Drug, Device and Cosmetic Act in 1997, receiving stolen property in 1997, receiving stolen property in 1999, violation of the Drug, Device and Cosmetic Act in 1999, possession of an instrument of crime in 2002, and escape in 2002. The court told defendant at sentencing: That is a Pennsylvania standard guideline sentence. I have imposed it for the following reasons. First of all, I have considered all of the information contained in the presentence investigation report. This is as heinous a crime as I have seen in my 20 years on the bench that did not result in the death of the victim. Any lesser sentence would depreciate the seriousness of the crime. You are an extremely dangerous person and must be kept out of circulation for an extended period of time. -5- CP-21-CR-0434-2003 IS DENIED claim that his sentence was illegal, .” Defendant filed an appeal to the January 31, 2005 Superior Court of Pennsylvania. On , the judgment of sentence was affirmed by the Superior Court of Pennsylvania. 867 A.2d 1280 (Pa. Super. 2005). On December 7, 2005 , the Supreme Court of Pennsylvania denied a petition for allowance January 25, 2006 of appeal. 890 A.2d 1058 (Pa. 2005). On , Reid filed the within petition for post-conviction relief. Counsel was appointed. A hearing was conducted September 5, 2007 on . The petition for post-conviction relief raised several issues, only two of which petitioner sought to preserve at the start of the post-conviction hearing. Based on the evidence at the hearing, petitioner then withdrew one of those claims. His sole claim now is that he should be allowed to withdraw his plea of nolo contendere because, when he entered the plea, he believed that he had a plea agreement for a minimum sentence of eight years. Petitioner testified that his trial attorney told him that on his plea of nolo contendere he would receive a minimum sentence of eight years. He felt that “everything was solid” based on what his attorney said. He was shocked when he was sentenced to not less than eighteen years or more than forty years. Petitioner’s trial counsel testified that the only agreement he had was that petitioner could plead nolo contendere rather than guilty. This was a “straight plea” and “there was absolutely no agreement” regarding sentence. Trial counsel testified that he never told petitioner that there was an agreement that he would receive a minimum sentence of eight years, or -6- CP-21-CR-0434-2003 that he would receive such a sentence, although it was his hope that petitioner would be sentenced at the bottom of the standard range, which was a minimum of eight years, and that was what he asked the court to impose. The plea colloquy shows that when the plea of nolo contendere was entered the court specifically told petitioner that the maximum term of imprisonment was forty years; that a pre-sentence investigation would be completed; and that, “sentencing will be at my discretion under the law and the facts of the case as it is presented to me.” Commonwealth v. Rathfon, In 899 A.2d 365 (Pa. Super. 2006), the Superior Court of Pennsylvania stated: “A criminal defendant has the right to effective counsel during a plea process as well as during trial. A defendant is permitted to withdraw his guilty plea under the PCRA if ineffective assistance of counsel caused the defendant to enter an involuntary plea of guilty.” Commonwealth v. Kersteter, 877 A.2d 466, 468 (Pa.Super.2005). We conduct our review of such a claim in accordance with the three-pronged ineffectiveness test under section 9543(a)(2)(ii) of the PCRA, 42 Pa.C.S.A. § 9543(a)(2)(ii). See [Commonwealth v.] Lynch[, 820 A.2d 728, 732 (Pa.Super.2003)]. “The voluntariness of the plea depends on whether counsel’s advice was within the range of competence demanded of attorneys in criminal cases.” (Quoting Commonwealth v. Hickman, 2002 PA Super 152, 799 A.2d 136, 141 (Pa.Super.2002)). In order for Appellant to prevail on a claim of ineffective assistance of counsel, he must show, by a preponderance of the evidence, 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. Commonwealth v. Kimball, 555 Pa. 299, 724 A.2d 326, 333 (Pa. 1999). Appellant must demonstrate: (1) the underlying claim is of arguable merit; (2) that counsel had no reasonable strategic basis for his or her action or inaction; and (3) but for the errors and omissions of counsel, there is a reasonable probability that the outcome of the proceedings would have -7- CP-21-CR-0434-2003 been different. Id. The petitioner bears the burden of proving all three prongs of the test. Commonwealth v. Meadows, 567 Pa. 344, 787 A.2d 312, 319-20 (2001). Commonwealth v. Johnson, 868 A.2d 1278, 1281 (Pa.Super.2005). Kersteter, 877 A.2d at 469-69. Moreover, trial counsel is presumed to be effective. Commonwealth v. Carter, 540 Pa. 135, 656 A.2d 463, 465 (1995). In both Kersteter and Hickman, which the PCRA court relied upon to grant relief in the instant case, the defendants pled guilty in reliance on plea counsels’ erroneous advice that they would be eligible for boot camp when, in fact, the length of their sentences statutorily precluded the possibility of their participation in boot camp. Both defendants sought PCRA relief, asking to withdraw their pleas based on ineffectiveness assistance of counsel. In both cases, we conclude that counsels’ erroneous advice fell below the standard of competence required by the Sixth Amendment, that there was no reasonable basis designed to advance the defendants’ interests, and that the erroneous advice prejudiced the defendants because it enticed them to plead guilty when they would not have otherwise done so. See Kersteter, 877 A.2d at 467 (discussing analogous Hickman case). With regard to prejudice, in we noted that “[t]o Hickman, succeed in showing prejudice, the defendant must show that it is reasonably probable that, but for counsel’s errors, he would not have pleaded guilty and would have gone to trial. The ‘reasonable probability’ test is not a stringent one.” Hickman, 799 A.2d 141 (citations omitted; emphasis added). The Court in Hickman derived this standard from Nix v. Whiteside, 475 U.S. 157, 175, 106 S.Ct. 988, 89 L.Ed.2d 123 (1986), which held that “[a] reasonable probability is a probability sufficient to undermine confidence in the outcome.” The Hickman Court also relied upon Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985), wherein the United States Supreme Court stated: [I]n order to satisfy the “prejudice” requirement, the defendant must show that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial. . . . In Hickman we found prejudice where the defendant established that it was reasonably probable that he would not have pled guilty had he known that he was really not eligible for boot camp. We were persuaded by two factors: first, that the PCRA court did not doubt the defendant’s or plea counsel’s credibility; and, second, that had he gone to trial, he would -8- CP-21-CR-0434-2003 have only been risking one additional year of incarceration on his minimum sentence. Id. Accordingly, counsel’s constitutionally deficient advice caused the defendant’s plea to be involuntary and unknowing. Id. Rathfon, In following a post-conviction hearing in which the petitioner sought to withdraw a plea of guilty to corruption of minors because he did not receive a sentence to be served in a county prison, the trial court granted relief. The Superior Court of Pennsylvania affirmed, stating: Arguably, we could conclude that, even if Rathfon knew that the entire sentence would be served in a state prison, he still would have pled guilty because of the other benefits of his bargain, i.e., the indecent assault charge was nol prossed, his prior record score was decreased from 5 to 4, and he risked a maximum of five years’ incarceration had he gone to trial whereas the recommended maximum in his plea agreement was 1½ years. However, we cannot ignore the fact that the record reveals that Rathfon bargained for a county sentence, that the court accepted the plea and sentenced Rathfon under the continuing misapprehension that the sentence would be served in the county jail, and that plea counsel was apparently not aware that the Sentencing Code and DOC policy would result in aggregation of the sentences, which would preclude the possibility of Rathfon serving the sentence in the county jail. Additionally, it is within the province of the PCRA court to make credibility determinations, and it apparently believed Rathfon when he testified at the PCRA hearing that he would not have pled guilty had he known the sentence would be served in state prison. The PCRA court accepted Rathfon’s reasons for preferring county jail over state prison and concluded that Rathfon did not get what he had bargained for, given that the written plea agreement and associate proceedings unequivocally indicated that his sentence was to be a county sentence. Since the reasonable probability test is not stringent and the record supports the PCRA court’s conclusions, we must affirm. sub judice, In the case we find the following facts: (1) trial counsel did not tell petitioner prior to the entry of the plea of nolo contendere that the minimum sentence -9- CP-21-CR-0434-2003 would be eight years, and (2) petitioner knew when he entered his plea that there would be a pre-sentence investigation and that the court had discretion in what sentence to impose. Based on these findings, counsel was not ineffective. There was no error by counsel that affected petitioner’s decision to enter an open plea of nolo contendere to attempted criminal homicide. Therefore, the following order is entered. ORDER OF COURT AND NOW, this day of September, 2007, the petition for post- IS DENIED. conviction relief, By the Court, Edgar B. Bayley, J. Michelle Sibert, Esquire For the Commonwealth Taylor P. Andrews, Esquire For Petitioner :sal -10- COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : TWAIWIN EUGENE REID : CP-21-CR-0434-2003 IN RE: PETITION FOR POST-CONVICTION RELIEF ORDER OF COURT AND NOW, this day of September, 2007, the petition for post- IS DENIED. conviction relief, By the Court, Edgar B. Bayley, J. Michelle Sibert, Esquire For the Commonwealth Taylor P. Andrews, Esquire For Petitioner :sal