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HomeMy WebLinkAbout98-1866 criminal appeal3. A41018/99 COMMONWEALTH OF PENNSYLVANIA, Appellee CRYSTAL E. PALMER, Appellant IN THE SUPERIOR COURT OF PENNSYLVANIA No. 0293 MDA 1999 Appeal from the 3UDGMENT OF SENTENCE 3anuary 25, 1999 In the Court of Common Pleas of CUMBERLAND County Criminal No. 98-1866CR JUDGMENT ON CONZID~ON ~F, it is now here ordered and adjudged by this Court that the judgment of the Court of Common Pleas of CUMBERLAND County be, and the same is hereby AFFIRMED. Dated.' NOVEMBER 18 ~ 19 9 9 BY TtiE COURT: 3. A41018/99 COMMONWEALTH OF PENNSYLVANIA, ' Appellee · CRYSTAL E. PALMER, · Appellant · IN THE SUPERIOR COURT OF PEN NSYLVANIA No. 0293 MDA 1999 Appeal from the JUDGMENT OF SENTENCE January 25, 1999 In the Court of Common Pleas of CUMBERLAND County Criminal No. 98-1866CR BEFORE' MCEWEN, CAVANAUGH, and STEVENS, 33. MEMORANDUM' Crystal Palmer appeals from the judgment of sentence entered following her guilty plea. We affirm. On January 25, 1999, appellant entered a guilty plea to two misdemeanors in the second degree; recklessly endangering another person, and fleeing or attempting to elude a police officer. The pleas were entered in return for the Commonwealth's withdrawal of charges of aggravated assault, a felony in the second degree, and reckless driving and criminal mischief, both summary offenses. The factual basis for the guilty plea was accurately set forth by the Commonwealth at the guilty plea and sentencing hearing: Essentially what happened is on September 19, 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 3. A41018/99 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, ! believe, in excess of 100 miles per hour on the interstate. The 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 .... During the course of the rolling roadblock, she rammed into the rear of at least one of the police vehicles. The Commonwealth presented on the record the negotiated agreement among appellant, her counsel and the Commonwealth. Palmer agreed to enter a plea to recklessly endangering another person and fleeing or attempting to elude police officers.~ The Commonwealth sought a sentence of thirty days incarceration as a minimum with sentencing to occur immediately upon the acceptance of the plea. The court then conducted a plea colloquy which included the following: THE COURT: 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. 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 z Each of these offenses carries a potential sentence of two years imprisonment and a $5,000 fine. -2- 3, A41018/99 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 accepted the plea agreement and immediately sentenced appellant to thirty days to six months incarceration pursuant to the agreement. Tt also authorized work release at the request of defense counsel. Defense counsel filed a letter dated February 5, 1999 which informed the court appellant would lose her job even though the court allowed work release, and requested the court alter the conditions of her imprisonment to fifteen consecutive weekends rather than thirty consecutive days. The court denied this request. Appellant reported to the Cumberland County Prison as ordered on February 8, 1999. On that same date new counsel filed a direct appeal from the judgment of sentence to this court and appellant was released that day on bail, on her own recognizance, pending disposition of her appeal. Appellant raises the following issues for our review: I. WHETHER THE DEFENDANT'S PREVIOUS COUNSEL IN FAILING TO ADVISE THE DEFENDANT THAT THE DEFENDANT HAD TEN (10) DAYS FROM THE DATE OF THE GUILTY PLEAS TO WITHDRAW CONSTITUTES INEFFECTIVE ASSISTANCE OF COUNSEL? 3. A41018/99 II. III. IV. WHETHER THE DEFENDANT'S PREVIOUS COUNSEL FAILURE TO RAISE ADDITIONAL ISSUES AT SENTENCING INCLUDING BUT NOT LIMITED TO THE DEFENDANT'S EMPLOYER NOT GRANTING THE DEFENDANT'S WORK RELEASE CONSTITUTES INEFFECTIVE ASSISTANCE OF COUNSEL? WHETHER THE DEFENDANT'S PREVIOUS COUNSEL'S SUBMISSION OF A LE1-FER AS OPPOSED TO FILING POST TRIAL MOTIONS AND/OR MOTION FOR RECONSIDERATION CONSTITUTES INEFFECTIVEN- ESS OF COUNSEL? WHETHER THE TRIAL COURT ERRED IN DENYING THE PREVIOUS DEFENDANT'S COUNSEL LE1-FER THAT THE DEFENDANT WOULD LOSE HER ]OB OF OVER 12 YEARS IF THE COURT DID NOT ALLOW HER TO SERVE SENTENCE ON WEEKENDS CONSTITUTES AN ABUSE OF DISCRETION? Appellant's first claim is that trial counsel was ineffective for not advising her that a withdrawal of a guilty plea must be filed by a post-trial motion within ten days of a final order of the court. In addressing an ineffectiveness claim, our threshold inquiry is whether there is arguable merit to appellant's claim since counsel cannot be considered ineffective for failing to assert a meritless claim. Commonwealth v. Lebo, 713 A.2d 1158, 1163 (Pa. Super. 1998), appeal denied, Pa. , 737 A.2d 741 (1999). Once this threshold is met we apply the "reasonable basis" test to determine whether counsel's chosen course was designed to effectuate the client's interests. _rd. If we conclude that the particular course chosen by counsel had some reasonable basis, our inquiry ceases and counsel's assistance is deemed effective. _rd. If we determine that there was no -4- 3. A41018/99 reasonable basis for counsel's chosen course, then the accused must demonstrate that counsel's ineffectiveness worked to his prejudice. Appellant claims that her trial counsel was ineffective for failing to tell her she could withdraw her guilty plea within ten days of the plea. A court may permit a defendant to withdraw a plea of guilty after sentence has been imposed "only where the defendant makes a showing of prejudice that results in a manifest injustice". Commonwealth v. Lewis, 708 A.2d 497, 502 (Pa. Super. 1998), appeal denied, 555 Pa. 741, 725 A.2d 1219 (1998). To demonstrate manifest injustice a criminal must show that the plea was involuntary or was entered without knowledge of the charge. Xd. at 503. In Commonwealth v. Yager, 685 A.2d 1000 (Pa. Super. 1996), this court was presented with an argument that trial counsel was ineffective for not advising the defendant to withdraw his plea. rejected this argument stating: This court sitting en banc · .this ignores the reality of appellant's situation. The totality of the circumstances shows that appellant entered an informed, voluntary plea, with complete knowledge of the consequences, and that trial counsel knew this. To move to withdraw appellant's plea, counsel would have had to allege an unknowing plea when he knew the truth was otherwise; we will not impose on counsel an obligation to aver what he knows is false. Xd. at 10067 2 This approach was approved by the supreme court in Commonwealth v. Allen, Pa. ., 732 A.2d 582, 589, n.19 (1999). -5- 3. A41018/99 Looking at the totality of the circumstances, appellant told the trial court she was guilty, that she understood her rights, and was voluntarily pleading guilty. Counsel cannot be found ineffective for failing to raise a claim that he knows is false. The record supports no finding that a manifest injustice would result if a timely filed petition to withdraw the guilty plea were denied. Moreover, it is not necessary to advise a defendant as to every In Commonwealth v. potential right to which he or she may be entitled. Klinger, 470 A.2d 540 (Pa. Super. 1983), we held counsel was not ineffective for failing to insist that the guilty plea colloquy include a statement about the right to withdraw a guilty plea prior to sentencing. We stated: ]~t would be absurd to hold that a guilty plea is involuntary or unknowing if the defendant is not told beforehand that after entering the plea he will be allowed to petition to withdraw it. Equally absurd would be to find counsel ineffective for failing to insist on such a statement in a guilty plea colloquy. The Supreme Court has ruled that knowledge of the procedural aspects of the right to withdraw a plea has no relation to whether the plea was voluntary in the first instance. Xd. at 549. We also note that presently a withdrawal would be post-sentence and is only permissible to prevent manifest injustice. Commonwealth v. Lewis, supra. .1. A41018/99 Even if counsel had a duty to advise appellant of her right to withdraw her guilty plea, appellant has shown no prejudice in light of the reasonable sentence imposed. Counsel's recommendation that appellant enter a guilty plea was reasonable and prudent in view of the modest sentence recommendation when the serious charges are considered. Moreover, appellant does not need to be pleased with the outcome of her decision to enter a plea of guilty. Commonwealth v. Yager, 685 A.2d 1000, 1004 (Pa. Super. 1996). Neither counsel nor the court may be faulted for acceptance of the guilty plea and authorization of work release where the only obstacle to work release was appellant's employer's refusal to accept it. Appellant's last three issues also relate to work release. As noted above, appellant's request for work release was granted by the court. On February 5, 1999, appellant's trial counsel wrote to the court stating that appellant's employer would not authorize work release and that she would lose her job. The letter requested the court to permit appellant to serve her sentence on fifteen consecutive weekends so she could retain her job. Initially, appellant claims that counsel was ineffective for failing to raise additional issues at sentencing including but not limited to her employer's not granting work release. There is no authority for the proposition that counsel must undertake to prearrange work release arrangements prior to sentencing. -7- 3. A41018/99 Appellant next argues that trial counsel's submission of a letter as opposed to filing a post trial motion to withdraw the plea and/or a motion for reconsideration of sentence constitutes ineffectiveness of counsel. Appellant merely makes an assertion that counsel acted ineffectively and does not cite to any relevant authority. As such, this claim is waived. More importantly, there is no evidence that appellant suffered any prejudice as a result of the procedural informality. Appellant's last argument is that the trial court abused its discretion in denying counsel's request to allow appellant to serve her sentence over the course of fifteen consecutive weekends. Where the plea agreement contains a negotiated sentence which is accepted and imposed by the sentencing court, there is no authority to permit a challenge to the discretionary aspects of that sentence. If either party to a negotiated plea agreement believed the other side could, at any time following entry of sentence, approach the judge and have the sentence unilaterally altered, neither the Commonwealth nor any defendant would be willing to enter into such an agreement. Permitting a discretionary appeal following the entry of a negotiated plea would undermine the designs and goals of plea bargaining, and would make a sham of the negotiated plea process. Commonwealth v. Reichle, 589 A.2d 1140, 1141 (Pa. Super. 1991) (citations omitted). Appellant entered into a negotiated plea agreement and the court accepted the agreement. Appellant, having failed to check with her -8- J. A41018/99 employer before seeking work release, is now attempting to challenge the very sentence she sought and received. We reject this meritless challenge. Judgment of sentence affirmed. -9-