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HomeMy WebLinkAbout98-1866 criminalCOMMONWEALTH · IN THE COURT OF COMMON PLEAS OF · CUMBERLAND COUNTY, PENNSYLVANIA Vo CRYSTAL E. PALMER 98-1866 CRIMINAL TERM IN RE: OPINION PURSUANT TO PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1925 Bayley, J., March 10, 1999:-- On January 25, 1999, defendant, Crystal E. Palmer, entered a plea of guilty to two misdemeanors in the second degree, recklessly endangering another person,~ and fleeing or attempting to elude a police officer.2 The pleas were entered in full satisfaction of the additional charges against defendant of aggravated assault, a felony in the second degree,3 reckless driving, a summary offense,4 and criminal mischief, a summary offense.5 The plea colloquy includes the following: MR. GERY: Number 146 on the trial list, Commonwealth versus Crystal E. Palmer. She's now before the court for the purpose of entering pleas of guilty. There is a negotiated agreement between Miss Palmer through her lawyer and the District Attorney's Office whereby she will be entering pleas to Count 2, recklessly endangering another person, a misdemeanor two carrying a maximum two years and $5,000.00 in fines, and also Count 3, fleeing or attempting to elude police officers, also an M-2 carrying a maximum of two years and a $5,000.00 fine. This negotiated agreement carries a sentence which we put 1. 18 Pa.C.S. § 2705· 2. 75 Pa.C.S.§ 3733. 3. 18 Pa.C.S.§ 2702(a)(3). 4. 75 Pa.C.S.§ 3736. 5. 18 Pa.C.S.§ 3304. 98-1866 CRIMINAL TERM forward to the Judge and would request the Judge impose a sentence of 30 days incarceration as a minimum and with sentencing to occur immediately upon the Court's acceptance of the plea. However, it's my understanding that she's going to request a brief period of deferment in commencing the sentence, and we'll accept those pleas in full satisfaction of the felony aggravated assault and the remaining summaries. Essentially what happened is on September 19th, 1998, troopers with the Pennsylvania State Police received actually two calls that came in, I believe, also simultaneously, one regarding a loud and disorderly individual, the other involving a motorist in distress. They responded and found out that both calls involved the same person. The loud and disorderly individual was Miss Palmer who was also the motorist in distress. They attempted to give assistance to Miss Palmer, and that denigrated to a situation where she was loud and vulgar with the police officers and ultimately fled away in her vehicle, led them on a high speed chase traveling, I believe, in excess of 100 miles per hour on the interstate. This initial chase was ultimately discontinued when she got away by fleeing through a cut cornfield. Later she was observed again by other troopers on the interstate in Cumberland County. They again initiated pursuit, and again reaching high speeds during the course of that pursuit, and a roadblock was instituted and that's when she was finally captured. THE COURT: Was there some type of a collision? MR. GERY: There was. During the course of the rolling roadblock, she rammed into the rear end of at least one of the police vehicles. THE COURT: So she wants to plead guilty to the two charges in satisfaction with an agreed sentence of the minimum which is not less than 30 days, is that correct? MR. ADAMS: That is correct, Your Honor. THE COURT: So even before I start in with you, I will let you know that that resolution is acceptable to me if you plead guilty. You do have a right, however, to a trial by jury, and we have a jury panel here. You could remain silent. You would be presumed innocent. That jury-would be selected from your peers throughout this county. You could participate in that selection with your attorney, and in order to convict you on any of these charges, all 12 jurors would unanimously have to agree that every element of that offense was proven beyond a reasonable doubt. -2- 98-1866 CRIMINAL TERM If you plead guilty, you waive your right to the jury trial, you will not have it. You also waive your right to raise or further pursue any other pretrial motions for relief that could have been or have been filed on your behalf such as motions to suppress evidence. Do you feel you understand those rights? THE DEFENDANT: Yes, Your Honor. THE COURT: If you did what the District Attorney said you did, you most assuredly are guilty of recklessly endangering another person and fleeing or attempting to elude a police officer. Do you admit you committed those offenses? THE DEFENDANT: Yes. THE COURT: I will accept the pleas. THE COURT: Okay. Does your client waive a presentence investigation? MR. ADAMS: Yes, Your Honor. We waive the presentence investigation and would ask for immediate sentence. The only thing I would add, Your Honor, prior to imposing a sentence is my client has no prior record. She is employed by the Commonwealth of Pennsylvania, but she currently is on unpaid leave because of this matter. We're not sure what her status is going to be there, but I would ask the Court consider allowing work release and allowing her to report for commitment on the 8th of February. THE COURT: do you work for, ma'am? THE DEFENDANT: THE COURT: THE DEFENDANT: THE COURT: THE DEFENDANT: THE COURT: That is acceptable to me. What department Department of Health. Have you had that job awhile? Yes, sir. Where do you live? I live in Harrisburg. Okay. Anything else you want to tell me before I impose the sentence? THE DEFENDANT: Anything else? No, Your Honor. I'm very sorry about what happened. I had nothing against the officers, and I just, you know, was in pursuit of finding my mother. That's it. THE COURT: The sentence I am about to impose is solely pursuant to the plea arrangement entered into between the Commonwealth and defendant which is acceptable to the Court. Sentence is that you pay the costs of prosecution and -3- 98-1866 CRIMINAL TERM undergo imprisonment in the Cumberland County Prison for a term of not less than thirty days nor more than six months. You are to report directly to the Cumberland County Prison, without further appearance or order of court, at 9:00 a.m. on Monday, February 8, 1999. As long as you are in compliance with all rules and regulations of the Cumberland County Prison, you are to be released at the expiration of your minimum time on parole and not on supervision on condition that you be and remain on good behavior. Work release is authorized. (Emphasis added.) Defendant reported to the Cumberland County Prison as ordered on February 8, 1999. On the same date with new counsel she filed a direct appeal from the judgment of sentence to the Superior Court of Pennsylvania. She posted bail and was released later that day. In a concise statement of matters complained of on appeal, defendant avers: 1.) Appeal based on the ineffectiveness of Defendant's previous counsel failure to instruct the Defendant that a withdrawal of a guilty plea must be filed by a post trial motion (10) days after a final order of Court. (The record is void of any instructions to the Defendant that a guilty plea can be withdrawn within ten (10) days.) 2.) Appeal based on ineffectiveness of Defendant's previous counsel failure to raise additional issue for the guilty plea including the employer not granting work release for which is the purpose for the acceptance of the guilty plea by the Defendant. 3.) Appeal based on ineffectiveness of Defendant's previous counsel submission of a letter to the Trial Judge instead of a post trial motion and/or motion for reconsideration subsequently to the Judge denying the same. See letter attached and incorporated as Exhibit "A". 4.) Appeal based on the Trial Court's abuse of discretion in not denying the Defendant the opportunity to serve the thirty (30) days on weekends after the Defendant's employer denied work release to the Defendant. (The record shows that this is Defendant's first offense). Defendant's first complaint is that her trial counsel was ineffective for not telling her that a withdrawal of her guilty pleas must be filed by a "post-trial motion (10) ten -4- 98-1866 CRIMINAL TERM days after a final order of court." There could not have been such a post-trial motion. Pa.R.Orim. P. 1410(B)(1) provides for the filing of an optional post-trial motion as follows: (a) The defendant in a court case shall have the right to make a post-sentence motion. All requests for relief from the trial court shall be stated with specificity and particularity, and shall be consolidated in the post-sentence motion, which may include: (i) a motion challenging the validity of a plea of guilty or nolo contendere, or the denial of a motion to withdraw a plea of guilty or nolo contendere; (ii) a motion for judgment of acquittal; (iii) a motion in arrest of judgment; (iv) a motion for a new trial; and/or (v) a motion to modify sentence. (Emphasis added.) Defendant pled guilty and was sentenced on the same day. There was no denial of any motion to withdraw her guilty pleas before sentence as contemplated by Rule 1410(B)(1)(a)(i). The sentence conformed to a plea agreement that was accepted by the court for a minimum term of imprisonment of thirty days. Because the court complied with the plea agreement defendant has no right to withdraw her plea subsequent to sentence. Commonwealth v. McClendon, 403 Pa. Super. 467 (1991). Therefore, defendant's counsel was not ineffective even if defendant was not advised that she could have filed a post-sentence motion to modify her sentence within ten days after she was sentenced. Defendant's other three complaints relate to work release. The court granted work release as requested by defendant at the time of sentence. This sentence was authorized by the Judicial Code at 42 Pa.C.S. Section 9755 titled, "Sentence of partial -5- 98-1866 CRIMINAL TERM confinement," which provides: (a) General rule.--In imposing a sentence involving partial confinement the court shall specify at the time of sentencing the length of the term during which the defendant is to be partially confined, which term may not exceed the maximum term for which he could be totally confined, and whether the confinement shall commence in a correctional or other appropriate institution. (b) Minimum sentence.--The court shall impose a minimum sentence of partial confinement which shall not exceed one-half of the maximum sentence imposed. (c) Purpose for partial release.--The court may in its order grant the defendant the privilege of leaving the institution during necessary and reasonable hours for any of the following purposes: (1) To work at his employment. (2) To seek employment. (3) To conduct his own business or to engage in other self-employment, including housekeeping and attending to the needs of the family. (4) To attend an educational institution or participate in a course of vocational training. (5) To obtain medical treatment. (6) To devote time to any other purpose approved by the court. (Emphasis added.) (e) Duties of correctional authorities.--The correctional authorities shall be responsible for arranging a plan consistent with the order issued under this section whereby the objectives of partial confinement may be achieved and they shall determine when and under what conditions consistent with the order issued under this section the defendant shall be permitted to be absent from the correctional institution. On February 5, 1999, defendant's trial counsel wrote to the court indicating that defendant's "employer, the Commonwealth of Pennsylvania, would not authorize work release. She will, therefore, be 'AWOL' and lose her position. Would you please consider having the 30 days served on 15 consecutive weekends so that [defendant] -6- 98-1866 CRIMINAL TERM does not lose her employment with the Commonwealth?" Defendant appears to be seeking to withdraw her guilty pleas by arguing that the court abused its discretion by not allowing her to serve her sentence on weekends.6 The conditions of work release are not an aspect of the sentence of imprisonment that requires a ten day optional petition to modify a sentence under Pa.R.Crim. P. 1410(B)(1)(a)(v). A court may enter an order of work release at any time under 42 Pa.C.S. Section 9755(c)(1) because work release is not the sentence which is subject to modification only as prescribed in the Judicial Code at 42 Pa.C.S. Section 5505. Therefore, trial counsel's request by letter for the court's permission to allow defendant to be released each weekday on work release does not constitute ineffective assistance of counsel. Furthermore, there is no legal basis for claiming that the court abused its discretion by not allowing defendant to set the conditions of her own work release. The Judicial Code at 42 Pa.C.S. Section 9755(c) says the court "[relay in its order grant to defendant the privilege of leaving the institution." ,~,~ - (DATE) Edgar B. Bayley, O. /, 6. If defendant is allowed to withdraw her guilty pleas she will face trial on the five counts which were charged in the information including the felony aggravated assault graded a felony in the second degree. -7- 98-1866 CRIMINAL TERM Travis Gery, Esquire Jaime Keating, Esquire For the Commonwealth Melvin L. Carter, Esquire For Defendant :saa -8-