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Home My WebLink About95-2125 CriminalCOMMONWEALTH Ve KHALDUN BASEER RASHEED OTN: E200670-1 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 95-2125 CRIMINAL TERM CHARGE: (A) CRIMINAL ATTEMPT TO UNLAWFUL DELIVERY OR MANUFACTURE OR POSSESSION WITH INTENT TO DELIVER SCHEDULE II CONTROLLED SUBSTANCE IN RE: DEFENDANT'S AMENDED POST-CONVICTION RELIEF ACT PETITION BEFORE OLER, J. d ORDER OF COURT AND NOW, this ~ ay of February, 1998, upon consideration of Defendant's amended petition under the Post Conviction Relief Act, following a hearing, and for the reasons stated in the accompanying opinion, Defendant's petition is granted, the judgment of sentence imposed on April 9, 1996, is vacated, the plea of no contest entered on March 5, 1996, is withdrawn, and Defendant is directed to appear for trial on the charges as initially filed herein at the call of the District Attorney. Jaime Keating, Esq. Assistant District Attorney BY THE COURT, James K. Jones, Esq. 7 Irvine Row Carlisle, PA 17013 Attorney for Defendant :rc COMMONWEALTH Ve KHALDUN BASEER RASHEED OTN: E200670-1 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 95-2125 CRIMINAL TERM CHARGE: (A) CRIMINAL ATTEMPT TO UNLAWFUL DELIVERY OR MANUFACTURE OR POSSESSION WITH INTENT TO DELIVER SCHEDULE II CONTROLLED SUBSTANCE IN RE: DEFENDANT'S AMENDED POST-CONVICTION RELIEF ACT PETITION BEFORE OLER, J. OPINION and ORDER OF COURT Oler, J., February 10, 1998. At issue in the present criminal case is whether Defendant's amended petition under the Post Conviction Relief Act should be granted. The relief sought by Defendant is a new trial. The basis for the relief sought is a plea of no contest unlawfully induced by the ineffective assistance of counsel. Defendant, who pled guilty to attempted delivery of a Schedule II controlled substance (crack cocaine), maintains that his counsel was ineffective in failing to advise him (a) that an element of the offense of attempt to deliver a controlled substance was an intent to commit that crime and (b) that renunciation was a defense to the offense of attempt. A hearing on Defendant's amended petition was Thursday, January 29, 1998. For the reasons stated opinion, Defendant's petition will be granted. a held on in this STATEMENT OF FACTS On March 5, 1996, Defendant tendered a plea of no contest to charge of attempted delivery of a Schedule II controlled NO. 95-2125 CRIMINAL TERM substance (crack cocaine), in full satisfaction of that charge, a charge of theft by deception and a charge of possession with intent to deliver or delivery.~ ~The factual basis for the plea was recited by the assistant district attorney as follows: The basis for the nolo plea is, Your Honor, the Defendant just cannot recall the specific facts of the alleged incident but does not contest the fact that if there were a trial the Commonwealth would call Detective Peiper of the Tri-County Drug Task Force, who would testify that on the 13th of July 1995, at approximately the (sic) 2216 hours, he pulled up, and it was in the Borough of Carlisle, undercover, working undercover, in the area of North Pitt Street, I believe the 300 block of North Pitt Street, Your Honor. He then made contact with an individual he would identify as Khaldun Rasheed, the Defendant; and that the Defendant said to him, what do you need; that Detective Peiper replied 60. Mr. Rasheed asked for money. Mr. Peiper gave him $60.00 in cash and marked funds, recorded funds, and then Mr. Rasheed entered a residence that was known to the undercover officers as a crack house. Detective Peiper waited approximately 10 minutes, drove around the block, returned, waited a little while longer, then spoke with a female who exited that residence who basically told him that, ha, ha, you have been ripped off. During the course of the colloquy on the plea, the court advised Defendant that, "[t]o attempt a crime, a person needs to take a substantial step towards commission of that crime with the intent that the crime would be committed." According to ~ Defendant received a sentence of not less than six months nor more than 23 months in the Cumberland County Prison, on April 19, 1996. He has since been paroled. 2 NO. 95-2125 CRIMINAL TERM Defendant's testimony at the hearing on his amended Post Conviction Relief Act petition, he was aware that delivery of cocaine was a crime. Defendant testified at the hearing on his amended Post Conviction Relief Act petition that his counsel had never discussed the concept of a renunciation defense to a charge of attempt, and that he became aware of such a defense only after an attorney had been appointed to represent him on a petition which he filed under the Post Conviction Relief Act. An amended petition raising this issue was filed by the appointed attorney on July 21, 1997, and is the petition sub judice. Defendant's prior counsel testified at the hearing that she did not remember whether she had discussed the renunciation defense with Defendant or not. Based upon the evidence presented at the hearing on the amended petition, the court finds that Defendant's counsel did not discuss the possibility of a renunciation defense with respect to the charge of attempt with Defendant, and that Defendant did not become aware of such a defense until his present attorney advised him of it. The court further finds that a renunciation defense was implicit in the factual allegations presented by the Commonwealth, wherein Defendant received funds in anticipation of his commission of the crime of delivery of crack cocaine, but abstained from delivering the drug. 3 NO. 95-2125 CRIMINAL TERM STATEMENT OF LAW "It is by now axiomatic that a defendant in a criminal case is entitled to effective representation at trial." Commonwealth v. Collins, 519 Pa. 58, 63, 545 A.2d 882, 885 (1988). With respect to a claim of ineffective assistance, however, "Pennsylvania courts presume that an accused's counsel is effective and place the burden of proving ineffectiveness on the convicted defendant." Packel & Poulin, Pennsylvania Evidence S307, at 116 (1987). In the context of a proceeding under the Post Conviction Relief Act,2 Judge Hess of this court has noted that the burden is a "heavy" one. Commonwealth v. Borrero, 42 Cumberland L.J. 419, 420 (1993). A general rule for the analysis of a claim of ineffectiveness of counsel has been provided by the Pennsylvania Supreme Court as follows: There are three elements to a valid claim of ineffective assistance. We inquire first whether the underlying claim is of arguable merit; that is, whether the disputed action or omission by counsel was of questionable legal soundness. If so, we ask whether counsel had any reasonable basis for the questionable action or omission .... If he did, our inquiry ends. If not, the [defendant] will be granted relief if he also demonstrates that counsel's improper course of conduct worked to his prejudice .... Commonwealth v. Davis, 518 Pa. 77, 83, 541A.2d 315, 318 (1988). See also Commonwealth v. Beasley, 544 Pa. 554, 678 A.2d 773 (1996); 2 Act of May 13, 1982, P.L. 417, as amended, 42 Pa. C.S. S~9541 et seq. (1997 Supp.). NO. 95-2125 CRIMINAL TERM Commonwealth v. Hess, No. 94-1437 Criminal Term (Cumberland Co., March 11, 1997) (Sheely, P.J.). However, under the Post Conviction Relief Act, a person seeking relief on the basis of ineffective assistance of counsel must prove, by a preponderance of the evidence, that the "conviction or sentence resulted from ... [i]neffective assistance · .. 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."3 Thus, the Pennsylvania Superior Court has stated that in this context "it is not enough for [a defendant] to show that he suffered some prejudice as a result of counsel's action or inaction, but rather that counsel's action or inaction so affected the trial itself ('the truth-determining process') that the result of the trial is inherently unreliable." Commonwealth v. Weinder, 395 Pa. Super. 608, 627, 577 A.2d 1364, 1374 (1990). In addition, an attempt by a person to withdraw a plea following sentence is subject to special burdens. Allegations of ineffectiveness of counsel in connection with a guilty plea "will provide a basis of relief only if ineffectiveness caused an involuntary or unknowing plea." Commonwealth v. West, 336 Pa. Super. 180, 185-86, 485 A.2d 490, 493 (1984). Where withdrawal of Act of May 13, 1992, P.L. 417, §2, as amended, 42 Pa. C.S. ~9543(a)(2)(i) (1996 Supp.). 5 NO. 95-2125 CRIMINAL TERM a guilty plea is the relief requested under the Post Conviction Relief Act, it will be permitted only "upon a showing of severe prejudice to the [petitioner] in the form of 'manifest injustice' .... " Commonwealth v. Edwards, 417 Pa. Super. 555, 559, 612 A.2d 1077, 1079 (1992), appeal denied, 625 A.2d 1191 (Pa. 1993). With respect to the defense of renunciation, the Crimes Code provides as follows: In any prosecution for an attempt to commit a crime, it is a defense that, under circumstances manifesting a voluntary and complete renunciation of his criminal intent, the defendant avoided the commission of the crime attempted by abandoning his criminal effort and, if the mere abandonment was insufficient to accomplish such avoidance, by taking further and affirmative steps which prevented the commission thereof. Act of December 6, 1972, P.L. 1482, ~1, 18 Pa. C.S. ~901(c). APPLICATION OF LAW TO FACTS In the present case, the alleged failure on the part of Defendant's counsel to advise him that an element of the offense of attempt was an intent to commit the crime contemplated, even if such a failure occurred, did not work to Defendant's prejudice, because the court's colloquy made it quite clear that such an intent was an element. For this reason, relief will not be granted to Defendant upon this ground. On the other hand, the omission of advice on the subject of a renunciation defense presents a more compelling reason for affording relief. In this regard, (a) Defendant's claim is of NO. 95-2125 CRIMINAL TERM arguable merit, (b) no reasonable basis for the omission suggests itself, (c) the omission worked to the prejudice of Defendant by excluding consideration of ~a defense which was implicit in the Commonwealth's version of the facts, and (d) the omission was sufficiently significant, in the court's view, to warrant a conclusion that the truth-determining process was not reliable, an unknowing plea resulted, and a manifest injustice can be avoided only by affording Defendant a new trial. In such a trial, the charges as originally filed, rather than as disposed of by the plea, would be at issue. ORDER OF COURT AND NOW, this 10th day of February, 1998, upon consideration of Defendant's amended petition under the Post Conviction Relief Act, following a hearing, and for the reasons stated in the accompanying opinion, Defendant's petition is granted, the judgment of sentence imposed on April 9, 1996, is vacated, the plea of no contest entered on March 5, 1996, is withdrawn, and Defendant is directed to appear for trial on the charges as initially filed herein at the call of the District Attorney. BY THE COURT, Jaime Keating, Esq. Assistant District Attorney s/ J. Wesley Oler, Jr. J. Wesley Oler, Jr., J. NO. 95-2125 CRIMINAL TERM James K. Jones, Esq. 7 Irvine Row Carlisle, PA 17013 Attorney for Defendant : rc 8