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HomeMy WebLinkAboutCP-21-CR-0001010-2009 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : LESLIE ANN BROWN : CP-21-CR-1010-2009 IN RE: DEFENDANT’S POST-CONVICTION RELIEF PETITION OPINION AND ORDER OF COURT Masland, J., November 3, 2011:-- In her Post-Conviction Relief Act (PCRA) petition, Leslie Ann Brown (Petitioner) seeks a new trial on the charge of Contempt for Violation of Order or 1 Agreement and seeks modification of the restitution portion of her sentence on 2 the charge of Stalking. I. Background On January 12, 2009, President Judge Kevin A. Hess issued a final protection from abuse order against the Petitioner, which, inter alia, directed her to “not abuse, harass, stalk or threaten [William T. Holloway] in any place where [he] might be found” and directed her to have no contact with Mr. Holloway “by 3 telephone or by any other means, including through third persons.” On February 18, 2009, the Petitioner admitted she was in contempt of said order and was sentenced by President Judge Hess to six months supervised probation. The protection order was modified at that time as follows: the defendant will not be within one hundred feet of William Holloway nor within one mile of his residence, but with the understanding that the defendant may travel the Trindle Road. The order is further modified 23 Pa.C.S. § 6114. 1 18 Pa.C.S. § 2709.1. 2 Petitioner’s Exhibit 1 at p. 5. 3 CP-21-CR-1010-2009 she not attend events or gatherings to provide that or be at the premises of the Cumberland Valley Hog Chapter and the dealership of Appalachian Harley-Davidson. (Emphasis added.) On January 20, 2010, Detective Rodney Temple filed contempt charges, which are at issue in the instant PCRA, that alleged another violation of the protection from abuse order. On February 9, 2010, the Petitioner appeared in court, admitted the allegations of contempt, and, pursuant to an agreement with the Commonwealth, was sentenced to undergo a period of incarceration in the Cumberland County Prison for six months with credit for time served from January 21, 2010. In the related criminal matter, Petitioner pled guilty to three counts of stalking on January 19, 2010, and was sentenced on February 9, 2010. On Count Three, she was sentenced to pay the costs of prosecution, to make restitution in the amount of $11,327.74 and to undergo a period of incarceration in the Cumberland County Prison of two months to twenty-three months. On Counts Four and Six, Petitioner was given two consecutive periods of five years supervised probation. All of these sentences run consecutively to the sentence previously imposed on the protection from abuse action. The Petitioner did not file a post-sentence motion or a direct appeal to the Pennsylvania Superior Court. On February 1, 2011, the instant PCRA petition was filed. A hearing on the petition was held on September 12, 2011, and included the testimony of the Petitioner and her plea counsel, Heidi F. Eakin, Esquire. -2- CP-21-CR-1010-2009 Essentially, Petitioner has two claims for relief. First, she asserts a constitutional claim that the alleged violation of the protection from abuse order (resulting in her February 9, 2010, admission of contempt) was in violation of the First Amendment of the United States Constitution because her behavior constituted political speech. Related to this is her claim that Plea Counsel was ineffective in allowing her to plead guilty to constitutionally protected conduct. Her second claim is a more concrete assertion that Plea Counsel was ineffective in failing to file a motion to modify the restitution portion of the sentence she received on the offense of stalking. For the following reasons, the court finds that Petitioner’s claims have no merit and therefore denies the petition in all respects. II. Law Governing PCRA Claims A petitioner is eligible for relief under the Post Conviction Relief Act when she establishes three criteria by a preponderance of the evidence. First, the petitioner must show that she 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, she 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 innocence 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). With respect to Petitioner’s claims of ineffectiveness of counsel, she must prove by a preponderance of the evidence both that her “counsel’s performance -3- CP-21-CR-1010-2009 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). III. Discussion In applying the law to the facts of this case, we turn first to Petitioner’s constitutional claims. Although couched as two separate claims, the argument that Petitioner is entitled to relief under 42 Pa.C.S. Section 9543(a)(2)(i), because of an alleged violation of her rights under the Frist Amendment of the United States Constitution, is inextricably linked to the ineffectiveness claim that Plea Counsel “allow[ed] the Petitioner to plead guilty to conduct which was protected 4 by the First Amendment.” Ultimately, should we conclude that the constitutional 5 claim is meritless the related ineffectiveness claim must also fall. PCRA Petition at paragraph 9(c). 4 Commonwealth v. Travaglia, 661 A.2d 352 (Pa. 1995). 5 -4- CP-21-CR-1010-2009 To address the constitutional claim, we must first examine the elements of indirect criminal contempt of a protection from abuse. The Commonwealth must demonstrate the following: 1. The order must be definite, clear, specific and leave no doubt or uncertainty in the mind of the person to whom it was addressed of the conduct prohibited; 2. The contemnor must have had notice of the specific order or decree; 3. The act constituting the violation must have been volitional; 4. The contemnor must act with wrongful intent. Commonwealth v. Baker, 722 A.2d 718 (Pa. Super. 1998) (en banc) aff’d, 766 A.2d 328 (Pa. 2001). A similar case discussing free expression and harassing communication best sums up the court’s view on the matter. In Commonwealth v. Hendrickson, the Pennsylvania Supreme Court clarified that a restraint on harassing communication does not violate the right to free speech “where that conduct falls within the scope of otherwise valid criminal laws that reflect legitimate state interests.” Commonwealth v. Hendrickson, 724 A.2d 315, 318 (1999). In Hendrickson, the court found that the “government has a legitimate interest in preventing the harassment of individuals.” Id. Furthermore, the court stated that where the “statute is not directed at the content of speech and is unrelated to the suppression of free expression” but instead, “focuses on the manner and means of communication and proscribes communication made with an intent to harass . . . the statute does not punish constitutionally-protected conduct.” Id. -5- CP-21-CR-1010-2009 Just as a restraint on harassing communication does not violate the right to free speech because of the required intent to harass, the same rationale applies in indirect criminal contempt of protection from abuse orders where the contemnor must have acted with wrongful intent. The focus is not on what is actually said in the communication (such as the alleged political content of Petitioner’s speech) but on the actual conduct of the person engaging in harassing behavior. Even if the court found that Petitioner’s speech was of a political nature, the fact is her speech was aimed intentionally at Mr. Holloway, who was an officer in the Harley-Davidson Club on whose site Petitioner posted her diatribe. The comment that Petitioner posted on Hog Chapter Facebook stated “God help you all. When you put in ‘power’ people who are selfserving liars, cheats and thieves, God help you and may god bless you all …. you will 6 need it.” This comment was a thinly veiled attack primarily directly at Mr. Holloway. Not coincidentally, this comment was posted on January 19, 2010, at 6:50 p.m., within four to five hours of Petitioner’s guilty plea on the stalking charge. Importantly, at or about the time of the plea, Plea Counsel advised the Petitioner to have “no contact [with the Mr. Holloway] – none at all, not even smoke 7 signals.” Although it defies all logic to deem such threatening speech “political” and accord it with any type of protection, the protection from abuse order was content neutral and was designed to preclude her from having any type of contact or communication with Mr. Holloway. In sum, we find that the Petitioner, Petitioner’s Exhibit 1, p. 4. 6 Testimony at PCRA hearing September 12, 2011. 7 -6- CP-21-CR-1010-2009 knowing she was not to contact Mr. Holloway, proceeded to post this notice with the intent to harass, stalk or threaten the Mr. Holloway. Moreover, in light of the amendment to the protection from abuse order made on February 18, 2009, by President Judge Hess, by engaging in this form of internet chat, she was effectively “attending” an event or gathering of the Hog Chapter. In short, no matter how you slice it, Petitioner violated the order. Based on our finding that there was no violation of Petitioner’s First Amendment rights, Plea Counsel was clearly not ineffective for failing to assert this meritless claim. We now turn to the second claim raised by Petitioner regarding the modification of the restitution portion of the stalking sentence. In essence, Petitioner does not want Mr. Holloway to “double dip.” As noted at the hearing, the Commonwealth is equally opposed to double dipping and our courts frown upon that as well. However, the fact remains that the victim incurred substantial counseling expenses, and whether those expenses were paid for by Mr. Holloway or his insurance carrier, the Petitioner is responsible for repaying those costs. Therefore, had Petitioner directed Plea Counsel to file for a modification of the sentence (which we find Petitioner did not request), the filing of the petition would have had no effect on the amount of restitution ordered by this court. The sum of $11,327.74 was the actual amount of counseling expenses charged to Mr. Holloway, and was either paid by him or the insurance company. In ordering restitution, this court directs that full payment be made whether an insurance -7- CP-21-CR-1010-2009 company is involved or not. To do otherwise victimizes society in general and all policyholders in particular. Petitioner appears to think that she is off the hook for any expenses covered by Mr. Holloway’s insurance. Such reasoning is antithetical to the obligation to make restitution, and a motion for reconsideration of the sentence would have resulted in no decrease of Petitioner’s obligation. Finally, we note that the sentencing order of February 9, 2010 merely states that the defendant is required to “pay restitution in the amount of $11,327.47.” It does not direct that that payment be received solely by Mr. Holloway. Therefore if it is determined by the Commonwealth or its victim witness office that a portion of that amount should be transferred to the insurance company, it is within their power to do so. Petitioner should concern herself with how she is going to meet her obligation, not with where the money goes. In light of the foregoing, we find that Petitioner has failed to carry her burden on these claims, and accordingly we enter the following order of court. ORDER OF COURT AND NOW, this day of November, 2011, following a hearing on DENIED. September 12, 2011, Petitioner’s motions for post-conviction relief are By the Court, Albert H. Masland, J. -8- CP-21-CR-1010-2009 Christin Mehrtens-Carlin, Esquire Assistant District Attorney Karl E. Rominger, Esquire For Petitioner :saa -9- COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : LESLIE ANN BROWN : CP-21-CR-1010-2009 IN RE: DEFENDANT’S POST-CONVICTION RELIEF PETITION ORDER OF COURT AND NOW, this day of November, 2011, following a hearing on DENIED. September 12, 2011, Petitioner’s motions for post-conviction relief are By the Court, Albert H. Masland, J. Christin Mehrtens-Carlin, Esquire Assistant District Attorney Karl E. Rominger, Esquire For Petitioner :saa