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HomeMy WebLinkAboutCP-21-CR-0002807-2007 (2) COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : : CP-21-CR-2807-2007 : : CHARGE: UNLAWFUL DELIVERY OR V. : MANUFACTURE OR POSSESSION WITH : INTENT TO DELIVER A SCHEDULE II, : (COCAINE) CONTROLLED SUBSTANCE : MANUEL A. RODRIGUEZ : OTN: K321699-0 : AFFIANT: CPL. MICHAEL R. TAYLOR IN RE: OPINION PURSUANT TO PA. R.A.P. 1925 Ebert, Jr., J., October 20, 2010 – FACTS By criminal complaint dated September 6, 2007, the Pennsylvania State Police charged the Defendant with three counts of Unlawful Delivery of a 1 Schedule II, (Cocaine) Controlled Substance. These charges were based on three separate direct sales from the Defendant on August 23, 2007, August 29, 2007, and September 6, 2007. Each count was an ungraded felony punishable by up to 20 years imprisonment and/or a $200,000.00 fine. At the hearing on the Defendant’s Motion for Post-Conviction Collateral Relief (hereinafter PCCR Hrg, p. ___), held on June 10, 2009, the Defendant stated that his Public Defender showed him a lab report which indicated that one 2 of those deliveries was 20 grams of cocaine. Additionally, the Defendant’s pre- sentence investigation report showed that he had prior convictions for a violation of 35 Pa.C.S.A. §780-113(a) (30) from Dauphin County on January 13, 2004. 1 35 Pa.C.S.A. §780-113(a) (30). 2 PCCR Hrg., p. 9. Accordingly, on this count alone the Defendant could have received a five year mandatory prison sentence and a mandatory minimum $30,000.00 fine pursuant to 18 Pa.C.S.A. §7508(a) (3) (ii). On March 5, 2008, Assistant District Attorney Christylee Peck sent Defense Counsel Waller a proposed plea agreement. The Court notes for the record that Assistant Public Defender Waller has been employed in the Public Defender’s Office in Cumberland County for approximately 19 years. Accordingly, she has routinely worked with all the members of the District Attorney’s staff since the new District Attorney entered office on January 1, 2006. The agreement called for the Defendant to plead guilty to one count of felony drug delivery in full satisfaction of the other charges pending against him in 3 exchange for a 5 year minimum sentence in state prison. Pursuant to the proposed agreement the Commonwealth would not file the notice of mandatory sentence and since the sentence would not be considered a mandatory sentence, the Defendant would be eligible for certain programs in the prison and possible earlier release which would not have been available had the Defendant 4 been sentenced under the mandatory sentencing provisions. On March 25, 2008, the Defendant appeared in open court together with Defense Counsel Arla Waller, completed a full guilty plea colloquy form which advised him of all of his rights, and signed the plea form pleading guilty to One 5 Count of Unlawful Delivery for a set sentence of 5 to 10 years. The Court noted in the guilty plea Order of Court that there was “an agreed upon set sentence of 5 3 PCCR Hrg., p. 19; Commonwealth Ex. #4. 4 PCCR Hrg., p. 21. 5 PCCR Hrg., p. 11-12; Commonwealth’s Ex. #1. 2 to 10 years in the State Correctional Institute.” Defendant was allowed to remain free on bail from March 25, 2008, until June 3, 2008. This consideration was given to the Defendant in order to allow him to have time with his family prior to 6 beginning his sentence. The Defendant was formally sentenced on June 3, 2008, pursuant to the plea agreement between himself and the Commonwealth. On March 3, 2009, the Defendant filed a Motion for Post Conviction Collateral Relief. On October 14, 2010, the Defendant filed a Statement of Errors Complained Of on Appeal Nunc Pro Tunc. The Defendant’s sole basis for his Motion for Post Conviction Collateral Relief is that his counsel was ineffective for failing to pursue a State Intermediate Punishment sentence with the District Attorney or to discuss State Intermediate Punishment options with him prior to the plea. DISCUSSION It is well settled that with regard to the law on ineffective assistance of counsel there exists a presumption that counsel was competent. Commonwealth v. Watson, 2003 Pa. Super. 410 ¶ 17, 835 A.2d 786, 795. To prevail on a claim of ineffective assistance of counsel, the petitioner must overcome the presumption of competence with a showing that (1) the underlying claim is of arguable merit; (2) the course of conduct pursued by counsel did not have a reasonable basis in effectuating the interests of the petitioner; and (3) but for counsel’s ineffectiveness, there existed a reasonable probability that the outcome of the challenged proceeding would have been different. Id. If a petitioner fails to satisfy any of the three aforementioned prongs, the claim will be rejected. Id. 6 PCCR Hrg., p. 22. 3 This right to effective counsel applies also during the plea process as well as trial. Commonwealth v. Hickman, 799 A2d 136, 141 (Pa.Super. 2002) (citing Hill v. Lockart, 474 U.S. 52 (1985). With respect to a claim of ineffectiveness brought in connection with the entry of a guilty plea, Hickman, supra, provides that “[a]llegations of ineffectiveness in connection with the entry of a guilty plea will serve as a basis for relief only if the ineffectiveness caused the defendant to enter an involuntary or unknowing plea.” Hickman, 799 A2.d at 141. “Where the defendant enters his plea on the advice of counsel, the voluntariness of the plea depends on whether counsel’s advice was within the range of competence demanded of attorneys in criminal cases.” Id. Furthermore, “[t]he law does not require that [the petitioner] be pleased with the outcome of his decision to enter a plea of guilty: All that is required is that [his] decision to plead guilty be knowingly, voluntarily and intelligently made.” Commonwealth v. Moser, 921 A.2d 526, 528-29 (Pa.Super. 2007) (quoting Commonwealth v. Yager, 454 Pa.Super. 428, 685 A.2d 1000, 1004 (1996). When evaluating a claim for the ineffective assistance of counsel, the court must first determine whether the underlying issue is of arguable merit. Commonwealth v. Moore, 468 A.2d 791, 794 (Pa. Super. 1983) (citing Commonwealth v. Hubbard, 372 A.2d 687 (Pa. 1977). “If the issue is of arguable merit, we must then consider whether the course chosen by counsel had some reasonable basis designed to effectuate his client’s interest.” Moore, 321 Pa.Super. at 48 (citing Commonwealth ex rel. Washington v. Maroney, 472 Pa. 599, 235 A.2d 349 (1967)). 4 Succinctly stated, the Defendant’s “underlying claim” is that because his Defense Counsel did not ask the District Attorney for a State Intermediate Punishment sentence or discuss State Intermediate Punishment with him, his guilty plea was “unlawfully induced.” This claim has no arguable merit. The Defendant had a prior record score of 5 which included a Felony 1 Burglary, and three previous convictions for Unlawful Delivery or Manufacture or Possession with Intent to Deliver or Manufacture a Controlled Substance (violations of 35 Pa.C.S.A. §780-113(a) (30)) in Dauphin County. Given the quantity of the cocaine involved in this case (approximately 20 grams), the Defendant was subject to a 5 year mandatory minimum sentence and a mandatory $30,000.00 fine pursuant to 18 Pa.C.S.A. §7508 (a) (3) (ii). In response to the Court’s question “have you ever had any Defendant ever receive the approval of the District Attorney for State IP who is facing these types of mandatory sentence?” 7 Defense Counsel Waller answered “No.” This Court finds that Defense Counsel did not discuss State Intermediate Punishment with the District Attorney or the Defendant because she knew such a request was absolutely futile. Everyone is aware that a State Intermediate Punishment sentence is comprised of a minimum 7 months in a state correctional institution of which not less than 4 months must be spent in an institutional therapeutic community. This is followed by a minimum of 2 months in a community based therapeutic community and then at least 6 months in treatment through an outpatient facility which can include a community correction center. 42 Pa.C.S.A. §9905 (b) repealed in August 2009 and immediately replaced by 61 7 PCCR Hrg., p. 23. 5 Pa.C.S.A. 4105 (b) which has the exact same provisions. In short, State Intermediate Punishment in this case would have resulted in less than ½ of the mandatory minimum incarceration this repeat offender was facing under the law. A person may only receive State Intermediate Punishment when such a disposition is moved by the Commonwealth. 42 Pa.C.S.A. 9904 (a) (1); now 61 Pa.C.S.A. §4104 (a) (1). In short, the District Attorney has an absolute veto power over admitting anyone into the State Intermediate Punishment program. This Court is well aware of the policy of the current District Attorney of Cumberland County who was the District Attorney at the time the Defendant entered his plea. No Defendant facing a mandatory 5 year sentence with a prior record score of 5 would be approved for State Intermediate Punishment. It is important to remember that the Defendant is not indicating that he was innocent or misled in any fashion. In essence, he is asking to have his plea vacated so that a new Defense Counsel can ask the same District Attorney for a State Intermediate Punishment sentence which will not be granted. Defendant’s PCCR counsel cites Commonwealth v. Hickman, 799 A.2d 136 (Pa.Super. 2002), and Commonwealth v. Kerstetter, 877 A.2d 466 (Pa.Super. 2005) in support of Defendant’s position. Clearly these cases are distinguishable. In both cases, Defense Counsel erroneously advised the Defendant that they were eligible for Motivational Boot Camp. In fact, after they were sentenced, they were not eligible for the Motivational Boot Camp Program. In this case no one advised the Defendant that he was eligible for State Intermediate Punishment because such a sentence was an impossibility based 6 on the fact that the District Attorney has not and would not allow any Defendant with a substantial prior record and who was facing a mandatory minimum 5 year sentence into such a program. To apply the Defendant’s logic, a defense counsel, regardless of how futile the effort, must discuss with his client and ask the District Attorney, for example, if the client could have the charges dismissed, or enter the Accelerated Rehabilitative Disposition Program, or get a probationary sentence. When a Defendant has a high prior record score for serious felonies and is facing a mandatory 5 year minimum such requests are futile. “Trial counsel cannot be held to be ineffective for failing to take futile actions or raise a meritless claim.” See Commonwealth v. Bryant, 855 A.2d 726, 742 (Pa. 2004). In this case, the course pursued by Defense Counsel did in fact have a reasonable basis designed to effectuate the interests of the petitioner. By avoiding the filing of the mandatory sentencing notice, the Defendant made himself eligible for certain prison programs, and perhaps an earlier release than he would have been eligible for had he received a mandatory 5 year minimum sentence under the provisions of 18 Pa.C.S.A. § 7508 (a) (3) (ii). The Defendant at sentencing, pursuant to the plea agreement, was not fined. Thus he avoided the mandatory $30,000.00 fine. Additionally, the Defendant’s plea agreement foreclosed a potential maximum sentence of up to 20 years. The Defendant was also allowed to remain free on bail with his family for over two months after the set sentence plea was entered. 7 Finally, the Court does not find that counsel was ineffective. There is absolutely no reasonable probability that the outcome of this case would have been different even if the defense counsel had asked the District Attorney for State Intermediate Punishment. It was not going to happen then, and it is not going to happen now. An experienced Public Defender, who knows the policies of the District Attorney she litigates against, is not rendered incompetent when she does not discuss with her client or ask the District Attorney for a sentencing disposition which the client has no chance of getting. This case does not even present the issue of failing to discuss collateral consequences of sentencing, such as loss of driving privileges or deportation issues. This Defendant was not going to be moved for State Intermediate Punishment by the District Attorney. Defense Counsel from her experience knew this, and accordingly did not pursue an impossible result. The Defendant did benefit from the plea agreement he entered and accordingly, his Motion for Post Conviction Collateral Relief was properly denied. By the Court, M. L. Ebert, Jr., J. Matthew P. Smith, Esquire Chief Deputy District Attorney Dirk Berry, Esquire Court appointed for Defendant 8 Manuel Rodriguez, Defendant HQ-0823 SCI – Fayette P. O. Box 9999 LaBelle, PA 15450 bas 9