HomeMy WebLinkAboutCP-21-CR-0901-2003
COMMONWEALTH
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
v.
: CHARGES: (2) Involuntary Deviate Sexual
Intercourse
(4) Aggravated Indecent Assault
(12) Kidnapping
BRETT ASHLEY
GILBERT
OTN: H7057304
: No. CP-2l-CR-090l-2003
IN RE: OPINION PURSUANT TO P A. R.A.P. 1925
OLER, 1., October 13, 2004.
In this criminal case, as a result of an incident on April 10, 2003, Defendant
was charged with rape, involuntary deviate sexual intercourse, sexual assault,
aggravated indecent assault, indecent assault, robbery of a motor vehicle, criminal
attempt to commit robbery of a motor vehicle, robbery, aggravated assault, simple
assault, terroristic threats, kidnapping, theft by unlawful taking or disposition, and
possessing instruments of crime. 1 On a previous occasion, he had been convicted
of attempted rape2 and had recently been released from prison.3
Pursuant to a plea bargain, he pled guilty to involuntary deviate sexual
intercourse, a felony of the first degree, aggravated indecent assault, a felony of
the second degree, and kidnapping, a felony of the first degree.4 Under the plea
arrangement, the Commonwealth ( a) did not pursue the remaining charges arising
out of the incident, (b) did not pursue umelated charges of robbery, theft by
unlawful taking or disposition, receiving stolen property, and registration of
1 Information, Commonwealth v. Gilbert, No. CP-21-CR-0901-2003 (Cumberland Co.).
2 NT. 2-11, Guilty Plea and Sentencing Proceedings, Commonwealth v. Gilbert, No. 98-0226
Criminal Term (Cumberland Co.).
3 NT. 46, Post Conviction Relief Act Hearing, May 19,2004 (hereinafter NT. ~.
4 Order of Court, August 29,2003.
certain offenders for ten years, and (c) agreed to an aggregate sentence of not less
thirteen years nor more than twenty-six years in a state correctional institution. 5
Defendant was sentenced in accordance with the plea bargain on August
29,2003.6 No direct appeal was filed from the judgment of sentence.
Defendant thereafter filed a petition for relief under the Post Conviction
Relief Act.7 At the hearing on the petition, Defendant, through his court-
appointed counsel, requested relief in the form of a vacation of the judgment of
sentence, withdrawal of his guilty plea, and reinstatement of his right to trial; the
bases for the relief requested were ( a) the involuntary nature of his plea of guilty
and (b) ineffective assistance of counsel. 8
Following the hearing, Defendant's petItIOn under the Post Conviction
Relief Act was denied. 9 From this order, Defendant has filed an appeal to the
Pennsylvania Superior Court.lO The bases of the appeal have been expressed in a
statement of matters complained of on appeal as follows:
1. The lower court abused its discretion in finding that
Defendant's plea was knowingll and voluntary.
2. The lower court abused its discretion in denying
Defendant's allegations of ineffective assistance of counsel, to
wit: failure to investigate alternate suspects, failure to set forth
Defendant's version of the facts and failure to disclose to the
court Defendant's then-existing mental health difficulties,
diagnosis and medications. 12
5 NT. 2-4, Guilty Plea and Sentence Colloquy, Commonwealth v. Gilbert, No. CP-21-CR-0901-
2003 (Cumberland Co.).
6 Order of Court, August 29,2003.
7 Defendant's Motion for Post Conviction Collateral Relief, filed February 19,2004.
8 NT. 4-8.
9 Order of Court, May 20,2004.
10 Defendant's Notice of Appeal, June 15,2004.
11 See note 22 infra.
12 Defendant's Concise Statement of Matters Complained of on Appeal, filed July 1,2004.
2
This opinion in support of the court's denial of Defendant's petition under
the Post Conviction Relief Act is written pursuant to Pennsylvania Rule of
Appellate Procedure 1925(a).
STATEMENT OF FACTS
The events of Thursday, April 10, 2003, pertinent to this case, which
Defendant would eventually admit to in his guilty plea,13 were recounted by the
Cumberland County District Attorney as follows:
[O]n Thursday, April the 10th, at approximately 5 a.m. in
the morning, the victim. . . had parked her car in the Giant
Food Store parking lot in Carlisle, [Cumberland County,
Pennsylvania,] and began walking to the front door of the
store. The Defendant approached the victim, got behind her
and placed a small knife at her neck and forced her back into
her car.
The Defendant forced the victim to drive the vehicle away
from the Giant property south on Spring Garden Street. As she
was driving, she attempted to push the Defendant away from
her, and she was cut with the knife on her hand. While she was
driving the vehicle, the Defendant penetrated the victim's
vagina with his finger.
In the area of the Bonnybrook Quarries in Cumberland
County, a substantial distance from the Giant, the Defendant
had the victim park the car and forced her to perform oral sex
upon him, and he ejaculated in her mouth. The Defendant then
demanded money and took the victim's wallet and money
which had a value of approximately $50.00.
The Defendant then threatened to kill the victim if she
reported the incident, and he then fled the scene. The
Commonwealth was prepared to present evidence in the case
that DNA samples taken from the victim's mouth matched the
DNA extracted from the Defendant's blood. Additionally, a
paper tissue found in the victim's car contained sperm which
matched the DNA of the Defendant's blood.
13 NT. 10, Guilty Plea and Sentence Colloquy, August 29,2003.
3
And finally, DNA of a blood smear taken from the
Defendant's jacket matched that of the DNA of the
.. 14
vIctIm. . . .
As a result of this criminal incident, Defendant was arrested on April 16,
2003,15 and James K. Jones, Esq., was subsequently appointed by the court to
represent him.16 Mr. Jones was an experienced Cumberland County criminal
defense trial attorney who had been in practice for about 20 years.17
As indicated above, Defendant entered a plea of guilty on August 29, 2003,
and was sentenced in accordance with the negotiated plea arrangement. 18 As also
indicated, no appeal was filed from the judgment of sentence.
On February 19, 2004, Defendant filed a form petition for relief under the
Post Conviction Relief Act. 19 The uncounseled petition requested "a new trial,,,20
on the basis of
(I) A violation of the Constitution of this Commonwealth
or the Constitution or laws of the United States 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.
(II) 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.
(III) A plea of guilty unlawfully induced where the
circumstances make it likely that the inducement caused the
petitioner to plead guilty and the petitioner is innocent.
* * * *
14 NT. 4-6, Guilty Plea and Sentence Colloquy, August 29,2003.
15 District Justice Transcript.
16 Order of Court, April 24, 2003 (Hoffer, PJ.).
17 NT. 39-40.
18 Order of Court, August 29,2003.
19 Defendant's Motion for Post Conviction Collateral Relief, filed February 19,2004.
20 Defendant's Motion for Post Conviction Collateral Relief, filed February 19,2004, at 4.
4
(V) The unavailability at the time of trial of exculpatory
evidence that has subsequently become available and would
have changed the outcome of the trial if it had been introduced.
The facts supporting these grounds for relief, as stated in the petition, were
as follows:
1) Counsel failed to: File for an evidentiary hearing.
2) Counsel failed to: Present Defendant with a copy of
discovery.
3) Counsel failed to: Pursue a motion to suppress evidence.
4) Counsel: By doing this forced me into taking a plea?1
The court appointed Susan K. Pickford, Esq., to represent Defendant on the
PCRA petition,22 and a hearing was held on May 19, 2004. At the hearing,
Defendant's counsel focused the issues being pursued by Defendant and limited
them to (a) whether Defendant's plea of guilty was involuntary23 due to mental
illness and coercion by his prior counsel and (b) whether his prior representation
was inadequate due to his counsel's insistence upon a plea of guilty instead of
trial, failure to investigate the case, and failure to recognize Defendant's mental
susceptibility to pressure to plead guilty?4
Two witnesses testified at the hearing: Defendant and Defendant's former
counsel, Mr. Jones. Defendant testified that following his April, 2003, arrest25 he
attempted suicide two or three times26 and spent several weeks in Mayview State
Hospital commencing in May, 2003.27 At the time of his plea on August 29,
21 Defendant's Motion for Post Conviction Collateral Relief, filed March 2,2004, at 3.
22 Order of Court, March 1, 2004.
23 Notwithstanding one aspect of Defendant's statement of matters complained of on appeal,
Defendant's counsel at the PCRA hearing expressly disavowed any contention that Defendant's
plea of guilty was unknowing, maintaining only that the plea was involuntary. NT. 75; see also
NT. 20.
24 NT. 4-8.
25 NT. 9.
26 NT. 11.
27 Id.
5
2003,28 according to his testimony, he was taking medication in the form of Celexa
and Seroquel for depression and schizophrenia.29
Defendant testified that prior to his entry of a plea, his counsel repeatedly
presented him with plea offers on the part of the district attorney's office, and that
he formed the impression that his counsel did not want him to proceed to trial. 30
According to Defendant,
Just-he didn't outright say, we're not going to trial. He
just said, keep taking the plea bargain. He kept bringing me
plea bargains, and I kept thinking about it. Why does he keep
bringing me plea bargains, and I keep telling him, no, I don't
want a plea bargain. I want to go to trial. And I felt as though
if we went to trial he would try to sabotage our defense in any
.bl 31
way pOSSI e.
Defendant at one point in his testimony attributed his perception of his
attorney's attitude to his mental illness,32 but later insisted that his concern about
sabotage at trial was rational. 33 He conceded that he had not requested that his
counsel investigate any particular issues,34 and admitted that he had written Mr.
Jones the following letter expressing regret for the crime and an intent to plead
guilty, and inviting a plea bargain with the Commonwealth:
Mr. Jones.
I am writing to you, to inform you that I am very sorry to
have wasted your time. And that I am willing to plead guilty
on my case. I will not plead guilty to rape because I never
penetrated her vagina. But I will plead guilty to IDS!. if I am
sentenced to no more than 10 yrs max. No knife was used
either.
28 NT. 16.
29 NT. 12.
30 NT. 14, 19.
31 NT. 19.
32 NT. 23.
33 NT. 23-24.
34 NT. 14.
6
On the other case it was said at my prelim that I grabbed
Mrs Norton and took her cig case. Well I did not grab her as
was said but reached over the counter as the arresting officer
said in the probable cause paper. I will plead guilty to
receiving stoling property if the time is run consecutive. Please
advise the DA that if I am given a 10 year max (5-10) that I
will serve the 10 years. Also tell them that I am "truley"
"sorry" for comitting these crimes and that I will seek help
where ever I end up. Please advise me of thier decision.
BAG
Again I am sorry not only to you but to the victims and
their family. 35
Defendant also acknowledged in his testimony that at the guilty plea
proceeding in this case ( a) his counsel had placed on the record the fact that
Defendant had undergone treatment and was on medication,36 (b) Defendant had
assured the court that the medication did not affect his ability to understand the
proceedings37 and that his mind was clear,38 (c) Defendant had advised the court
that he had had enough time to talk to his counsel,39 (d) Defendant had written
"N/ A" on a guilty plea colloquy form in response to the question "Have any
threats or promises been made to you to persuade you to enter a plea of guilty
(other than any plea agreement that has been negotiated for you by yourself or
your lawyer)?,,40 and (e) Defendant had admitted to the facts of the criminal
activity as recited by the district attomey.41
35 Commonwealth's Ex. 2, Post Conviction Relief Act hearing, May 19, 2004 (hereinafter
Commonwealth's Ex. ~; NT. 30.
36 NT. 27.
37 NT. 25.
38 NT. 25-26.
39 NT. 25.
40 NT. 15; Commonwealth's Ex. 3. Defendant claimed that he responded "N/A" instead of "yes"
because he was afraid that a "yes" answer would cause his attorney to "push[] for more time for
[him]" and that he believed "N/A" would alert the judge to the fact that there was a problem.
NT. 15, 26. Defendant acknowledged that he was aware that "N/A" meant "not applicable."
NT. 15-16.
41 NT. 24.'
7
On cross-examination, Defendant announced that he and the victim had
actually been acquainted prior to their encounter on the early-morning occasion in
question and were romantically involved,42 that the sexual episode was consensual
on her part,43 and that her blood had ended up on his coat because she had
produced a knife and stabbed herself when she discovered he was dating other
women. 44 Defendant further claimed that he had told his prior counsel about his
romantic involvement with the victim and that the sex was consensual.45 He
testified that his counsel told him that this was irrelevant. 46
Defendant's prior counsel testified at the PCRA hearing that Defendant
initially told him that he had not been at the scene of the crime and had no
involvement with it.47 According to Mr. Jones,
He told me at the time that he would have been with his
girlfriend or acquaintance, Yvonne Cole, who lived in Boiling
Springs at the time, and that it couldn't have been him because
he didn't have a vehicle in order to get into Carlisle. And that
Yvonne's mother, I believe it was, or it might have been
Yvonne's husband's mother had seen somebody else who
looked like him, and so maybe there was an identification
problem. That's basically the gist of what the cross
examination was at the preliminary hearing [in Defendant's
case]. Because he had indicated it wasn't him.48
Subsequently, Mr. Jones testified, the DNA evidence connected Defendant
rather conclusively with the offense49 and Defendant admitted to him that he was
42 NT. 18.
43 NT. 33.
44 NT. 33-34. Defendant acknowledged, however, that after his arrest he may have told the
police that he was sorry for what he had done and that he may have inquired as to how the victim
was. NT. 35-36.
45 NT. 33, 38.
46 NT. 38.
47 NT. 44.
48 Id.
49 NT. 55.
8
the perpetrator50 and expressed a desire to resolve the case with a plea bargain. 51
Mr. Jones stated ( a) that, in view of Defendant's admission that he was the
perpetrator, he had not thereafter pursued information as to other possible
suspects, 52 (b) that Defendant had never suggested that he was previously
acquainted with the victim, that he was romantically involved with the victim, or
that the sex was consensual, 53 (c) that he had not coerced Defendant to plead
guilty, 54 (d) that he had ultimately advised Defendant to accept a plea bargain, but
had made it clear that the decision as to whether to do so was his alone, 55 and (e)
that, notwithstanding Defendant's treatment for mental illness, he had appeared
fully aware of the events transpiring and actively participated in his defense. 56
In the latter regard, the testimony of Mr. Jones included the following
statements:
He had indicated to me previously, and obviously, I was
aware of his commitment to Mayview [and] that he was under
medication for various diagnoses . . . .
. . . I didn't detect any inability for him to understand.
In going back and forth between the numerous different
offers, he was always participating in what was going on. He
didn't seem to not understand what was going on. As a matter
of fact, he understood quite well what was going on. 57
No expert testimony was presented at the hearing to support Defendant's
position as to the effect of his mental condition and medication. The court found
the testimony of Mr. Jones entirely credible. To the extent that Defendant's
50 NT. 54-55.
51 NT. 55.
52 NT. 61.
53 NT. 44-45, 49, 64.
54 NT. 48-49.
55 NT. 50.
56 NT. 52.
57 Id.
9
testimony differed from that of his pnor counsel, the court did not find
Defendant's testimony plausible.
DISCUSSION
Voluntariness of guilty plea. Under the Post Conviction Relief Act,58
collateral relief may be available where a criminal conviction or sentence resulted
from "[a] plea of guilty unlawfully induced where the circumstances make it likely
that the inducement caused the petitioner to plead guilty and the petitioner is
innocent." Act of May 13, 1982, P.L. 417, 92, as amended, 42 Pa. C.S.
99543(a)(2)(iii). In general, the validity of a plea of guilty is dependent upon its
having been knowing, intelligent and voluntary. 59
"Once a defendant has entered a plea of guilty, . . . the burden of proving
involuntariness is upon him. ,,60 In determining whether a plea was voluntarily
entered into, an examination of the totality of the circumstances is warranted."
Commonwealth v. Lewis, 2002 PA Super. 31, ,-r9, 791 A.2d 1227, 1231 (2002).
"The mere fact that a defendant was 'under pressure' at the time he entered a
guilty plea will not invalidate the plea. . .." Id at ,-r15, 791 A.2d 1234 (citing
Commonwealth v. Myers, 434 Pa. Super. 221,229, 642 A.2d 1103, 1107 (1994)).
Where a guilty plea is the result of a plea bargain, there are added indicia of
voluntariness implicit in the advantages of the plea to the defendant. As the
United States Supreme Court has stated:
[I]t is . . . well settled that plea agreements are consistent
with the requirements of voluntariness and intelligence-
because each side may obtain advantages when a guilty plea is
exchanged for sentencing concessions, the agreement is no less
voluntary than any other bargained-for exchange. It is only
58 Act of May 13, 1982, P.L. 417, ~2, as amended, 42 Pa. C.S ~9541 et seq.
59 Commonwealth v. Hallock, 722 A.2d 180, 182 (Pa. Super. Ct. 1998).
60 Commonwealth v. Stork, 1999 PA Super. 212, ~6, 737 A.2d 789, 790 (1999).
10
when the consensual character of the plea is called into
question that the validity of a guilty plea may be impaired. 61
In the present case, the credible evidence presented at the Post Conviction
Relief Act hearing not only did not support Defendant's position that his guilty
plea was involuntary, but affirmatively supported its voluntariness. The absence
of expert testimony tending to show that his mental condition or medication
rendered him incompetent or unduly susceptible to suggestion or pressure, the
unequivocal testimony of his former counsel which contradicted Defendant's
testimony m critical areas, the appearance of competency which Defendant
presented m participating in his defense and in the guilty plea colloquy
proceeding, the general lack of credibility which the court assigned to his
testimony at the hearing, and the apparent fairness of the bargain as negotiated all
contributed to this conclusion.
Ineffective assistance of counsel. Under the Post Conviction Relief Act,
collateral relief may be available where a criminal conviction or sentence resulted
from "[i]neffective 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." Act of May 13, 1982,
P.L. 417, 92, as amended, 42 Pa. C.S. 99543(a)(2)(ii).
"It is. . . axiomatic that a defendant in a criminal case IS entitled to
effective representation. . .." 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 proofing ineffectiveness on the convicted defendant." Packel & Poulin,
61 Mabry v. Johnson, 467 U.S. 504, 508, 104 S. Ct. 2543, 2546, 81 L. Ed. 2d 437, 443 (1984)
(citations omitted).
11
Pennsylvania Evidence 9307, at 116 (1987); see Commonwealth v. McCauley,
2001 PA Super. 301, ,-r4, 797 A.2d 920,922 (2001).62
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, 541 A.2d 315, 318 (1988); see
Commonwealth v. Beasley, 544 Pa. 554, 678 A.2d 773 (1996); Commonwealth v.
Hess, No. 94-1437 Criminal Term (Cumberland Co., March 11, 1997) (Sheely,
P.1.).
However, as noted above, under the Post Conviction Relief Act, a person
seeking relief on the basis of ineffective assistance of counsel must also prove, by
a preponderance of the evidence, that the conviction or sentence resulted from
ineffective 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. 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 . . . [truth determining process] that the
result of the [proceeding] is inherently umeliable." Commonwealth v. We inder,
395 Pa. Super. 608, 627, 577 A.2d 1364, 1374 (1990).
62 In the context of a proceeding under the Post Conviction Relief Act, Judge Hess of this court
has noted that the burden is a "heavy" one. Commonwealth v. Borrero, 42 Cumberland LJ. 419,
420 (1993).
12
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 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).
In the present case, the failure of Defendant's prior counsel "to investigate
alternate suspects" was reasonable in view of Defendant's admission to counsel
that he was the perpetrator of the crime, and was of no prejudice to Defendant
even if Defendant's present contention that the episode was consensual is to be
credited. The failure of Defendant's counsel "to set forth Defendant's version of
the facts" was reasonable inasmuch as Defendant did not advise his attorney of a
version of the facts significantly different from those he pled to. Finally,
Defendant's claim that his counsel "fail[ed] to disclose to the court Defendant's
then-existing mental health difficulties, diagnosis and medications" is not entirely
accurate in that the counsel did advise the court that Defendant had undergone
treatlnent and was on medication at the time of the guilty plea; more importantly,
the evidence at the PCRA hearing failed to disclose any prejudice to Defendant
from the lack of specifics disclosed to the court with respect to this subject.
F or the foregoing reasons pertinent to Defendant's statement of matters
complained of on appeal, the court entered the order appealed from denying
Defendant's petition under the Post Conviction Relief Act.
BY THE COURT,
1. Wesley Oler, Jr., 1.
13
Jaime M. Keating, Esq.
Chief Deputy District Attorney
F or the Commonwealth
Susan K. Pickford, Esq.
Court-appointed Counsel
F or the Defendant
14