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HomeMy WebLinkAboutCP-21-CR-0000211-2009 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : CP-21-CR-3362-2008 DAVID ROBERT ROTH : CP-21-CR-0211-2009 IN RE: POST-CONVICTION PETITION OPINION AND ORDER OF COURT Masland, J., October 14, 2011:-- Before this court is a petition for Post-Conviction relief filed by David R. Roth alleging ineffective assistance of counsel. I. Background On April 6, 2009, at docket CP-21-CR-3362-2008, Petitioner, David R. Roth, pled guilty to DUI Highest Rate and Driving Under Suspension, DUI- related. On May 21, 2009, Petitioner also pled guilty to Theft by Deception at docket CP-21-CR-0211-2009. On August 18, 2009, Petitioner was sentenced to five days to fifteen months in the Cumberland County Prison for the Theft by Deception charge, as well as ninety days in the Dauphin County Work Release Center for the Driving Under Suspension, DUI-related charge, and ninety days to twenty-three months at the Dauphin County Work Release Center for the DUI Highest Rate charge, to run consecutive to the Driving Under Suspension, DUI- related charge. On March 26, 2010, Petitioner filed a pro se petition for post-conviction relief pursuant to the Post-Conviction Relief Act, related to Theft by Deception. On April 21, 2010 Petitioner filed a pro se petition for post-conviction relief related to the DUI and related offenses. CP-21-CR-3362-2008 CP-21-CR-0211-2009 Since the Petitioner made certain allegations regarding the effectiveness of his counsel, this Court appointed new counsel to represent him by Orders dated April 21, 2010 and May 3, 2010. The Petitioner alleges that Plea Counsel was ineffective in that his guilty plea to Theft by Deception was unlawfully induced and was not knowingly, voluntarily, and intelligently entered. Specifically, Petitioner claims that Plea Counsel was ineffective by failing to investigate possible defenses and advising Petitioner to plead guilty. The Petitioner also alleges that Plea Counsel was ineffective for failing to assert a Rule 600 claim in regard to the DUI and related offenses because the Commonwealth failed to bring him to trial within one year of the charges being filed. For the following reasons, the court finds that the Petitioner’s claims have no merit and therefore denies the petition in all respects. II. Findings of Fact A. Theft by Deception In July 2005, the Petitioner entered into a contract with Mr. and Mrs. Capps to construct a front porch on their home located at 923 Brandywine Way. The Capps paid the Petitioner $1,500.00 as a down payment and the Petitioner began preliminary work on the porch. In September, the Petitioner’s parole was revoked and he was placed in Cumberland County Prison. He remained in Cumberland County Prison until February 2006. After being released, the Petitioner tried to contact the Capps on one occasion and was unsuccessful. -2- CP-21-CR-3362-2008 CP-21-CR-0211-2009 The Petitioner later learned that the Capps were moving to Arizona and did not make any further attempts to finish the construction of the porch. At the preliminary hearing, the Petitioner was informed that if he paid the $1,500 restitution, the Commonwealth would drop the charges. Plea Counsel obtained a continuance in order to allow the Petitioner more time to pay the restitution. Later, Plea Counsel discussed with the Petitioner the possibility of a trial on the charge of Theft by Deception. The Petitioner expressed that he did not want to force the Capps to travel from Arizona for a trial. As a result, the Petitioner pleaded guilty to Theft by Deception and participated in a guilty plea colloquy. The Petitioner signed and initialed the guilty plea colloquy thereby acknowledging he understood the plea conditions. The Petitioner then stated directly to the sentencing court that he did not have any questions for Plea Counsel regarding the plea. The guilty plea colloquy itself specifically stated that by signing, the Petitioner gave up his right to a trial and his right to litigate and appeal his pretrial and trial rights. At the hearing on the instant petition, the Petitioner admitted to having acknowledged those statements in writing. At sentencing, the Petitioner orally indicated that he understood the guilty plea colloquy. B. Driving under the Influence In November 2006, the Petitioner was charged with DUI and related offenses. Upon Petitioner’s arrest, his identification listed a Liverpool address. He then listed his sister’s address on the Rights Warning Waiver. At the time of his arrest, the Petitioner also gave a non-existent address, and stated at the -3- CP-21-CR-3362-2008 CP-21-CR-0211-2009 hearing that this was likely due to his intoxication. The next day, the Petitioner gave a Marysville address that included a street address and P.O. Box number. In December 2008, the Petitioner listed the previously stated Liverpool address. At his preliminary hearing on December 12, 2008, Petitioner informed his attorney that he believed there was a Rule 600 violation because he had not been brought to trial within a year. Plea Counsel indicated she would be willing to raise a Rule 600 motion, but such a motion needed to be raised at the Court of Common Pleas, not at a preliminary hearing. Plea Counsel also indicated that she believed a Rule 600 claim would fail due to the numerous addresses that he provided and based on her own experience as an attorney. The Petitioner did not address the Rule 600 issue again with Plea Counsel. As with the theft offense, the Petitioner completed, signed, and initialed the guilty plea colloquy. III. Law Governing PCRA Claims A petitioner is eligible for relief under the Post Conviction Relief Act when he establishes three criteria by a preponderance of the evidence. First, the petitioner must show that he is in custody, having been convicted of a crime and either serving a term of probation, parole, or incarceration, or waiting to do so. 42 Pa.C.S. § 9543(a)(1). Second, he must demonstrate that the conviction resulted from “[i]neffective assistance of counsel, which, in the circumstances of the particular case, so undermine the truth-determining process that no reliable adjudication of guilt or innocent could have taken place.” Pa.C.S. § 9543(a)(2)(ii). Third, the petitioner must demonstrate that the error or defect has not been waived or previously litigated. 42 Pa.C.S. §9543(a)(3). -4- CP-21-CR-3362-2008 CP-21-CR-0211-2009 With respect to Petitioner’s claims of ineffectiveness of counsel, he must prove by a preponderance of the evidence both that his “counsel’s performance was deficient” and that the “deficient performance prejudiced the defense.” Commonwealth v. Reaves, 923 A.2d 1119, 1127 (Pa. 2007). Specifically, there are three prongs necessary for a defendant to demonstrate a claim of ineffectiveness: (1) the issue underlying the claim of ineffectiveness has arguable merit, (2) counsel did not have a reasonable basis for the act or omission in question, and (3) counsel’s effectiveness prejudiced the defendant. Commonwealth v. Pierce, 527 A.2d 973, 975-76 (Pa. 1987). A failure to satisfy any prong of the test for ineffectiveness will require rejection of the claim. Reaves, 923 A.2d at 1127. Furthermore, counsel is presumed to be effective, and the defendant has the burden of establishing ineffective assistance of counsel. Commonwealth v. Howard, 749 A.2d 941 (Pa. Super. 2000); Commonwealth v. Speight, 677 A.2d 317 (Pa. 1996). A. Theft by Deception First, the Petitioner claims that Plea Counsel was ineffective by failing to investigate possible defenses and advising him to plead guilty. Petitioner argues that because he took preliminary actions on the contract the Commonwealth could not prove he engaged in intentional deception. We will now review the three prongs necessary for a claim of ineffectiveness. 1. Plea Counsel had a reasonable basis to recommend a plea In order to demonstrate counsel’s ineffectiveness, the Petitioner must prove that counsel did not have a reasonable basis for the act or omission in -5- CP-21-CR-3362-2008 CP-21-CR-0211-2009 question. At the hearing, Plea Counsel testified that Petitioner did not wish to require the Capps to travel from Arizona for trial. Plea Counsel credibly testified that her decision to recommend a guilty plea was based in large part on Petitioner’s own wishes and therefore it cannot be considered unreasonable. 2. The plea was not a result of manifest injustice In order to withdraw a guilty plea on the grounds that the plea was unlawfully induced, the petitioner must prove that the “plea was the result of manifest injustice.” Commonwealth v. Heckman, 806 A.2d 461 (Pa. Super. 2002). To meet this standard, the Petitioner must establish that the plea was not knowing, voluntary, or intelligent. Whether the Petitioner understood the guilty plea and its consequences is to be determined by examining the “totality of the circumstances surrounding the plea.” Commonwealth v. Broadwater, 479 A.2d 526 (Pa. Super. 1984). Additionally, where a Petitioner enters a plea on 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.” Hill v. Lockhart, 474 U.S. 52, 56 (1985). The Petitioner claimed that he was not informed of the possibility of a trial, and that he was told his only option was to plead guilty or pay restitution. This claim is not credible. The Petitioner completed and signed a guilty plea colloquy on his own and acknowledged by signature that he understood what it meant. Petitioner also admitted at the hearing that he had handwritten an acknowledgement at each section of the guilty plea colloquy regarding the relinquishment of his right to a trial and his right to litigate and appeal his pretrial -6- CP-21-CR-3362-2008 CP-21-CR-0211-2009 and trial rights. Furthermore, when given the opportunity, the Petitioner declined to ask Plea Counsel any questions and instead acknowledged to the court that he understood the guilty plea colloquy. These facts indicate Petitioner was aware of his right to a trial and had numerous opportunities to request that the right be enforced or clarified. Despite these opportunities, Petitioner insisted that he understood he was giving up his right to a trial and acknowledged the fact multiple times throughout the guilty plea colloquy. Therefore, we find that Petitioner knowingly, voluntarily, and intelligently plead guilty and the plea was not the result of manifest injustice. B. Failure to file a Rule 600 motion The Petitioner next claims that Plea Counsel was ineffective for failing to file a Rule 600 motion because the Commonwealth did not bring him to trial within one year of the DUI charges being filed and did not exercise due diligence in locating him. Once again, we will examine the prongs necessary to demonstrate a claim of counsel ineffectiveness. 1. Plea Counsel acted with a reasonable basis At the time of Petitioner’s arrest he gave five different addresses to the Commonwealth. Petitioner was also incarcerated outside of Cumberland County at various times during the relevant time period. In determining that bringing a Rule 600 motion would be futile to pursue, Plea Counsel reasonably relied on the conversations with the Petitioner, the number of addresses given by the Petitioner to the police, and the Commonwealth’s inability to locate him. -7- CP-21-CR-3362-2008 CP-21-CR-0211-2009 2. Rule 600 standard A defendant must be brought to trial within 365 days of the criminal complaint being filed. Pa.R. Crim. P. 600. However, time may be excluded where “the period of time between the filing of the written complaint and the defendant’s arrest [if] the defendant could not be apprehended because his or her whereabouts were unknown and could not be determined by due diligence.” Pa.R.Crim.P. 600(C)(1). Petitioner was not brought to trial within one year of the criminal complaint. This was due, in part, to Petitioner’s multiple incarcerations between the filing of the criminal complaint and the plea. Additionally, Petitioner provided multiple addresses to the police, one of which he admitted was false. These multiple addresses coupled with Petitioner’s deception establish that the Commonwealth could not have brought Petitioner to trial in spite of its due diligence. Accordingly, Plea Counsel had a reasonable basis for not pursuing a Rule 600 motion and did not provide ineffective assistance of counsel. IV. Conclusion In sum, the Petitioner failed to carry his burden on both claims. Regarding the theft by deception offense, we find that the guilty plea was knowing, voluntary, and intelligent, and not the result of manifest injustice. On the Rule 600 claim, because Petitioner gave multiple addresses, was incarcerated multiple times, and deliberately deceived the authorities, Plea Counsel had a reasonable basis in determining not to pursue a Rule 600 claim and instead negotiated a plea agreement. -8- CP-21-CR-3362-2008 CP-21-CR-0211-2009 ORDER OF COURT AND NOW, this day of October, 2011, following a hearing on the Post-Conviction Relief Act petitions on July 8, 2011, the Petitioner’s motions DENIED for post-conviction relief are . By the Court, Albert H. Masland, J. Matthew P. Smith, Esquire Assistant District Attorney Stacy B. Wolf, Esquire For Petitioner :saa -9- COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : CP-21-CR-3362-2008 DAVID ROBERT ROTH : CP-21-CR-0211-2009 IN RE: POST-CONVICTION PETITION ORDER OF COURT AND NOW, this day of October, 2011, following a hearing on the Post-Conviction Relief Act petitions on July 8, 2011, the Petitioner’s motions DENIED for post-conviction relief are . By the Court, Albert H. Masland, J. Matthew P. Smith, Esquire Assistant District Attorney Stacy B. Wolf, Esquire For Petitioner :saa