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HomeMy WebLinkAboutCP-21-CR-2066-2007 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : : CP-21-CR-2066-2007 : V. : CHARGE: UNLAWFUL MANUFACTURE : DELIVERY OR POSSESSION WITH INTENT : TO DELIVER SCHEDULE II, C.S. : PATRICIA J. KISSELL : OTN: K624759-2 : AFFIANT: AGENT JEFFREY MOHN IN RE: OPINION PURSUANT TO PA.R.A.P. 1925 Ebert, Jr., J. January 8, 2009 – STATEMENT OF FACTS By complaint dated August 1, 2007, the Defendant was charged with Unlawful Delivery of 100 oxycodone tablets, a Schedule II Controlled Substance. The Defendant waived formal arraignment on October 16, 2007, and was scheduled for trial in the matter on January 28, 2008. On December 3, 2007, the Commonwealth filed a Notice of Mandatory Sentence indicating that if Defendant was convicted they would be seeking a mandatory sentence of not less than 3 years pursuant to 18 Pa. C.S.A. §7508 (a) (2) (ii), (b). On January 15, 2008, the Defendant’s trial date was continued until March 24, 2008. On April 7, 2008, the Defendant entered a plea of guilty to a charge of Unlawful Delivery, an ungraded felony, pursuant to an agreement with the Commonwealth that the Commonwealth might waive the mandatory 3 year sentence if the Defendant cooperated with the Commonwealth as an informant in other drug investigations. Sentencing in the matter was set for June 24, 2008. On June 11, 2008, the Defendant’s sentencing was continued until July 22, 2008. On July 22, 2008, the Defendant again requested a continuance of her sentencing date for 60 days. This continuance was unopposed by the Commonwealth and the new sentencing date was set for October 7, 2008. The reason for the continuance in sentencing was to allow the Defendant time to cooperate with the Commonwealth as an informant in other drug investigations. On October 7, 2008, the Defendant filed a written Petition to Withdraw Guilty Plea. The Commonwealth filed a written Answer to the Petition to Withdraw Guilty Plea on October 8, 2008. A hearing was set for October 14, 2008. In her Motion to Withdraw, the Defendant maintains that she did in fact attempt to work with the Cumberland County Drug Task Force as a cooperating individual and conduct a sting or controlled buys, but that the agents for the Commonwealth were “to busy” or “not inclined to pursue the leads” she provided. The Commonwealth in its Answer maintained that “the Commonwealth attempted in good faith to utilize the Defendant as an informant in conducting controlled buys” but that no controlled buys had been made and that their offer not to pursue the mandatory minimum sentence was predicated on results and not “attempts” by the Defendant. Additionally, in its Answer, the District Attorney indicated that the illegal delivery by the Defendant occurred on a school playground in Carlisle and that arguably additional mandatory minimum sentences could apply but that they had not filed any notice of the new mandatory minimum as of the date of the Answer. At the hearing, the Defendant moved to have the Courtroom closed in order to prevent the press from reporting that she had in fact volunteered to be a confidential drug informant. The Commonwealth objected and the Court ruled that the hearing would remain open. Given this ruling, the Defendant indicated that she did not want to testify at the hearing. Based on the averments in the Defendant’s Motion to Withdraw and the Answer filed by the Commonwealth, it became obvious that the hearing was going to focus on whether or not the Defendant had fulfilled her obligation to work as an 2 undercover informant and make controlled buys on behalf of the Cumberland County Drug Task Force. In any regard, based on the pleadings, this Court finds that for whatever reason the Defendant did not work as an undercover informant and as of October 7, 2008, had made no “controlled buys” for the Commonwealth. The Court then conducted a colloquy with the Defendant and Defendant’s counsel to make sure she understood that if she withdrew her plea and was convicted, she might expose herself to jail sentences in excess of the mandatory 3 year minimum. The Defendant indicated that she understood this, that she had discussed this matter with her counsel and that in essence she wanted a jury trial in the case. She did not directly state to the Court that she was innocent. The Commonwealth responded that they were prepared for the hearing on the Motion to Withdraw and that Agent Mohn, a special agent for the Attorney General’s Office and the affiant in the case, and Det. Eric Dale, the Commander of the Cumberland County Drug Task Force were present to testify. The Commonwealth’s position was since the Defendant did not want to testify at the hearing on the Motion to Withdraw, she had not met her burden of proof with regard to providing a “fair and just reason” for withdrawing her plea, and therefore was not entitled to withdraw her plea. An important consideration in the Court’s decision to allow the withdrawal was the fact that this hearing occurred on October 14, 2008, over 26 days before the November 2008 criminal jury term of Court. Agent Mohn, the special agent for the Attorney General’s office who was the affiant in the case and to whom the Defendant allegedly sold the 100 oxycodone tablets was present at the hearing. While this Court will not speculate on the number of witnesses the Commonwealth could present at trial, the only other essential person necessary for this jury trial would have been someone 3 from the Pennsylvania State Police Laboratory to offer expert testimony that the 100 tablets allegedly sold by the Defendant were in fact oxycodone, a Schedule II, Controlled Substance. This was not a complicated case. The Commonwealth made no offer whatsoever on how they were prejudiced by allowing the Defendant to go to trial. Interestingly, the record reflects that at the pre-trial conference on October 28, 2008, the Defendant requested a continuance of the trial until January 20, 2009, unopposed by the Commonwealth. This appeal was then filed by the Commonwealth on November 14, 2008. DISCUSSION The District Attorney of Cumberland County has charged Patricia Kissell with a felony drug delivery offense which carries a mandatory minimum sentence of 3 years imprisonment. In considering this plea withdrawal issue, one cannot ignore of the bedrock of the American judicial system. The sixth amendment of the Unites States Constitution guarantees that “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed…” This fundamental right is echoed in Article I, Section 6 of the Pennsylvania Constitution where it declares “Trial by jury shall be as heretofore, and the right thereof remain inviolate.” This Defendant in open court stated without equivocation that she wanted a jury trial. It is critical to note that this written request came before the Defendant was sentenced. As the Pennsylvania Supreme Court has pointed out on numerous occasions, “There are two different standards for the withdrawal of a guilty plea. When a motion to withdraw a guilty plea is made prior to sentencing, the motion should be granted where the Defendant has offered a “fair and just reason.” “The different treatment of pre- and 4 post sentence motions reflects the tension in our jurisprudence between the individual’s fundamental right to a trial and the need for a finality in the proceedings. Commonwealth v. Robert E. Gunter, 771 A.2d 767, 770-771 (Pa. 2001). A review of Pennsylvania Rule of Criminal Procedure 591, Withdrawal of Plea of Guilty or Nolo Contendere is important at this point. The Rule specifically states: (A) At any time before the imposition of sentence, the court may, in its discretion, permit, (emphasis added) upon motion of the defendant, or direct, sua sponte, the withdrawal of a plea of guilty or nolo contendere and the substitution of a plea of not guilty. (B) When a defendant moves for the withdrawal of a plea of guilty or nolo contendere, the attorney for the Commonwealth shall be given 10 days to respond. Nowhere in the Rule does it state that an evidentiary hearing is required. It is clear from the comments to the Rule that the Commonwealth shall be given an opportunity to respond. In this case, the Commonwealth did respond with a written answer one day after the Defendant’s Motion to Withdraw. Accordingly, the Commonwealth did have an opportunity and did in fact respond. Given the nature of the Defendant’s Motion to Withdraw, the Commonwealth’s Answer, the Defendant’s request for closed hearing, and the Commonwealth’s two witnesses being the affiant in the case and the commander of the Cumberland County Drug Task Force, it became quite apparent to the Court that the parties were going to contest whether or not the Defendant had met her obligation under the plea agreement to act as a confidential informant and make controlled buys. It was obvious to the Court that the Defendant had not made any controlled buys and had not cooperated with the Commonwealth in a manner sufficient to justify the District Attorney’s agreement to depart from the mandatory minimum three year sentence required in the case. At no 5 time during the conduct of the hearing did the Commonwealth ever make an offer or argument that they would be prejudiced by a withdrawal of the Defendant’s guilty plea. Again, as previously noted, this was a fairly simple case. It was obvious to the Court having reviewed the Probable Cause Affidavit in the Criminal Complaint that Agent th Mohn, the affiant, who was present at the October 14 hearing, was the person to whom the alleged 100 tablets of oxycodone were sold. The only remaining factor to be proved at jury trial was the fact that the tablets were indeed a controlled substance. For the sake of argument, it could be stated that the Commonwealth was prejudiced by the fact that the Defendant did not live up to her commitment under the plea agreement to serve as a confidential informant and make controlled drug buys. Had she complied, her actions would have indeed made it easier for the Commonwealth to enforce the drug laws and eliminate some controlled substances from the Cumberland County community. But such a contractual obligation on the part of the Defendant to obtain some favorable treatment under a plea agreement should not override the “fundamental right to a trial” guaranteed by both the state and federal Constitutions. Here in open court, after consultation with counsel, the Defendant knowing that she was going to be facing at minimum three years imprisonment and maybe more told this Court that she wanted to have a jury trial. She made this request before sentencing, in writing, and the Commonwealth had an opportunity to respond. Accordingly, pursuant to the comment to Pa.R.Crim.P. 591 “after the Attorney for the Commonwealth has had an opportunity to respond, a request to withdraw a plea made before sentencing should be liberally allowed.” Again, the Rule does not require an “evidentiary hearing” and on the record presented to this Court this case was a relatively 6 simple hand-to-hand drug delivery to an affiant that the Court knew was available for trial. This is not a case involving numerous witnesses, or a case where witnesses have to be subpoenaed from distant places, or where a key witness has died or become th unavailable. The First Assistant District Attorney who was present at the October 14 hearing admitted that he would subpoena the necessary witnesses for the November 2008 trial term. His only concern was that this was not the only case he personally had on the November 2008 trial list. Again, given the simplicity of this case any Assistant District Attorney in the Cumberland County District Attorney’s Office could have tried this matter. It was not necessary that the First Assistant District Attorney himself try the case. In short, the Commonwealth has suffered no real prejudice. The matter then turns on the Commonwealth’s assertion that the Defendant failed to meet her burden of proof with regard to showing a “fair and just reason” for the withdrawal of her plea. There is no doubt in this Court’s mind that the Defendant was induced in major part to accept the plea agreement offered by the Commonwealth in order to avoid the mandatory three year sentence. Given this Court’s experience of over 25 years in the criminal justice system, it is not uncommon for Defendants faced with immediate trial to take the path of least resistance in order to mitigate or postpone the ultimate sentencing consequences, and agree to serve as a Commonwealth informant. Upon reflection, many fail to perform this service out of fear of reprisal or the moral dilemma of betraying friends or associates. There can be little question that the Commonwealth has an arguably valid interest in the outcome of this case in order to place future Defendants on notice that once they plead guilty pursuant to an agreement to provide cooperation, cooperation must be forthcoming or they have completely waived their constitutional right to trial. 7 This Court is not convinced that the law dictates such a result. The law does not require a Defendant who has filed a written motion to withdraw a guilty plea to make “a bold assertion of innocence.” Commonwealth v. Kirsh, 930 A.2d 1282 (Pa. Super. 2007). Again, the stated mandate of Pa.R.Crim.P. 591 is that “at any time before the imposition of sentence, the Court may, in its discretion, permit, upon the motion of the Defendant,…the withdrawal of a plea of guilty…” Accordingly, this case turns on whether or not the Court abused its discretion in allowing the withdrawal of the Defendant’s plea. Given the clear policy announced in the comment to Pa.R.Crim.P. 591 that “after the Commonwealth has had an opportunity to respond, a request to withdraw a plea made before sentence should be liberally allowed,” it cannot be said that this Court abused its discretion in allowing this woman to withdraw her plea and have a jury trial. This is a serious case with serious consequences. It involves at minimum the loss of three years of liberty from this person’s life. For a citizen of this state who is facing what is arguably a very serious sentence to ask that she be proven guilty beyond a reasonable doubt before a jury is not only a fair but a just reason. On the facts of this case, the Court did not abuse its discretion. By the Court, M. L. Ebert, Jr., J. District Attorney’s Office Karl Rominger, Esquire Attorney for Defendant Court Administrator bas 8