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HomeMy WebLinkAboutCP-21-CR-0001318-2010 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : : CP-21-CR-1318-2010 : V. : CHARGE: 2. DUI – HIGHEST RATE RD : (3 OR SUBSEQUENT OFFENSE) : JOHN W. SIPE : OTN: L540640-2 : AFFIANT: OFF. BRIAN SHULL IN RE: OPINION PURSUANT TO Pa. R.A.P. 1925(a) EBERT, J., June 9, 2011 - Defendant appeals the denial of his Motion for Post-Conviction Collateral Relief based 1 on the following as stated in his Concise Statement of the Errors Complained of on Appeal: 1. Defendant wishes to raise issues regarding ineffectiveness of original counsel at sentencing because he was not fully apprised of consequences of his guilty plea and believed he would receive a sentence which he did not receive; current counsel will be filing a motion to withdraw since there are no issues of arguable merit. Background On September 16, 2010, Defendant appeared before the Honorable Edward E. Guido and pled guilty to Count 2 of the information filed at CP-21-CR-1318-2010 - Driving Under the rd Influence, Highest Rate (3 or Subsequent Offense). This plea was in full satisfaction of the other four charges filed in the information. He was to be screened for the Cumberland County Intermediate Punishment Program. On October 25, 2010, Defendant was sentenced in York County at Docket Number CP-67-CR-6583-2008, Count 1- Driving Under the Influence of Alcohol or Controlled Substance, to 1 to 5 years and a fine of $2,500.00. The Defendant was 2 allowed to serve this sentence in the Dauphin County Work Release Program. On Count 2 – Driving While Operating Privilege is Suspended or Revoked, he was sentenced to serve a 1 Concise Statement of the Errors Complained of on Appeal, filed May 3, 2011. 2 Petitioner’s Exhibit B, filed Nov. 9, 2010. 1 consecutive 90-day sentence in the Dauphin County Work Release Program. He was serving these York County sentences when, on November 23, 2010, the Defendant appeared in Cumberland County for sentencing on the charge which is the subject of this appeal. Defendant and his counsel signed a guilty plea colloquy. He answered questions at his guilty plea proceeding which clearly indicated that he understood his rights and that he had been advised of the possible maximum sentence for the charge. The transcript of the guilty plea before Judge Guido makes clear that the Defendant’s counsel indicated that the Defendant’s case was intermediate punishment eligible. Judge Guido directed that the Defendant “be screened” for 3 participation in the Intermediate Punishment Program. A pre-sentence investigation was prepared. The Defendant had a prior record score of 3 which included two other Driving Under the Influence convictions in Cumberland County. These were in addition to the Driving Under the Influence conviction from York County. The Probation Officer noted in the presentence report that “the Defendant has had a poor history with the Cumberland County Probation Office in regards to violations of probation/parole…” Accordingly, he was not eligible for the Cumberland County Intermediate Punishment Program. Additionally, the Probation Office recommended that he serve his sentence in a state correctional institute as the mandatory minimum sentence was 1 year. He was sentenced to undergo incarceration in a State Correctional Institute for a period of not less than one year and not more than three years, to run consecutive to any sentence Defendant was currently serving. This was the minimum mandatory sentence for the offense. For whatever reason, but certainly not by any Order of this Court, the Defendant was removed from the Dauphin County Work Release 3 Transcript of Proceedings, In Re: Guilty Plea, Sept. 16, 2010. 2 Program and returned to the York County Prison where he remains until completion of this York 4 County sentence. On December 1, 2010, Defendant filed a Motion to Reconsider Sentence, which was denied on December 6, 2010. On January 5, 2011, Defendant filed a Motion for Post-Conviction Collateral Relief, which was denied on March 23, 2010. Defendant filed this timely appeal. Discussion It is well-established that there is a presumption that counsel provided effective representation. Accordingly, the defendant bears the burden of proving ineffectiveness. Com. v. Faulk, 2011 WL 1348529, *4 (Pa. Super. 2011) (citing Com. v. Ligons, 971 A.2d 1125, 1137 (Pa. 2009). To prevail on an ineffective assistance claim, a defendant must establish “(1) [the] underlying claim is of arguable merit; (2) the particular course of conduct pursued by counsel did not have some reasonable basis designed to effectuate his [client's] interests; and (3) but for counsel's ineffectiveness, there is a reasonable probability that the outcome of the proceedings would have been different.” Id. (citing Com. v. Ali, 10 A.3d 282, 291 (Pa. 2010)). A claim of counsel's ineffectiveness made in connection with the entry of a guilty plea will provide a basis for relief only if the appellant can prove that the ineffectiveness caused an involuntary or unknowing plea. Com. v. Burkholder, 719 A.2d 346, 349 (Pa. Super. 1998) (citing Commonwealth v. Lewis, 708 A.2d 497 (Pa. Super. 1998)). In order to ensure that a plea is voluntarily and knowingly entered, the trial court must inform the accused of the permissible range of sentence for each offense, as well as the total possible aggregate sentence. Id. (citing Commonwealth v. Persinger, 615 A.2d 1305, 1308 (Pa. 1992)). A review of the record shows that Defendant’s claim is completely without merit. Defendant signed the Guilty Plea Colloquy which indicated that he understood the nature of the 4 Transcript of Proceedings, Mar. 23, 2011, In Re: PCRA, p. 7 (hereinafter PCRA at ___). 3 5 offenses charged and the possible maximum penalties associated with those offenses. On September 16, 2010, Defendant knowingly and voluntarily entered a plea of guilty to Count 2, DUI – Highest Rate and requested that he be considered for the Intermediate Punishment Program. The trial court conducted an inquiry on the record informing Defendant of the 6 permissible range of sentence for the offense and verifying that he understood his plea, which demonstrates that Defendant’s guilty plea was voluntarily and knowingly entered. Defendant’s Addendum to Post Conviction indicated that on September 16, 2010, he 7 “pled guilty to a term of 12 months to 5 years restrictive intermediate punishment.” However, as the guilty plea transcript clearly indicates, Defendant pled guilty to DUI – Highest Rate with the complete understanding that the possible penalties for that plea involved a fine from $2,500.00 to 8 $10,000.00 and 12 months to 5 years imprisonment. The Court asked Defendant if he heard the possible penalties, if he had reviewed the guilty plea form with his attorney, if he understood his 9 rights, and if he wanted to enter the guilty plea. Defendant answered “yes” to all of these 10 questions. The Court did direct that Defendant be screened for participation in the Intermediate Punishment Program because it was an IP eligible case. However, there was absolutely no promise or guarantee of acceptance into the IP program as part of the plea agreement. In the hearing regarding Defendant’s Motion for Post-Conviction Collateral Relief, Defendant testified that he did not remember if his attorney told him if he was going to get IP or 11 not. He stated that his attorney was “going to push for a one-year incarceration to be done in 5 Guilty Plea Colloquy, filed Sep. 16, 2010. 6 Transcript of Proceedings, In Re: Guilty Plea, Sept. 16, 2010, p. 2 (hereinafter Plea transcript at ___). 7 Addendum to Post Conviction Relief, Defendant’s Exhibit 1, ¶ 1. 8 Plea transcript at 2. 9 Plea transcript at 2. 10 Plea transcript at 2. 11 PCRA at 13. 4 12 the work release.” Defendant acknowledged that his attorney never made any guarantee as to what sentence he would actually get, and that his attorney would simply “push for” the IP 13 sentence. This is exactly what his attorney requested at the sentence hearing. Unfortunately for the Defendant, the Defendant’s prior record and his conduct while on probation/parole in Cumberland County convinced the Court that service of such a long sentence in the Dauphin County Work Release Center was not proper or just. The Defendant did receive a recidivism risk reduction incentive sentence of 9 months. Defendant’s claim does not meet any of the criteria for ineffective assistance of counsel outlined above. His underlying claim has no arguable merit. Even his new PCRA attorney admits as much as indicated by his intention to withdraw. His counsel’s course of action did have a reasonable basis because at the sentencing proceedings, Attorney Orr clearly indicated his 14 client’s desire to remain in the Dauphin County Work Release Program and because Attorney Orr filed Defendant’s Motion to Reconsider Sentence in which he requested that Defendant be able to serve his sentence in the work release program. Finally, there is no reasonable probability that but for counsel’s alleged ineffectiveness, the results of the proceedings would have been different. Defendant’s case was IP eligible, and Defendant’s attorney requested that Defendant be able to serve his sentence in the Dauphin County Work Release Program. There is no evidence whatsoever that Defendant’s attorney or anyone else promised Defendant that he would receive Intermediate Punishment or work release, or that an IP sentence was any part of the plea agreement. There were no other actions Defendant’s attorney could have taken that would have affected Defendant’s sentence in this case. 12 PCRA at 13. 13 PCRA at 19. 14 Sentencing Proceedings, Nov. 23, 2010, p. 2. 5 Conclusion Defendant’s claim of ineffective assistance of counsel has no merit. There is absolutely no evidence that he ever had any assurance that he would receive an Intermediate Punishment sentence. He was well aware of the possible maximum sentence, he voluntarily and knowingly entered a plea of guilty, and he was sentenced accordingly. By the Court, M. L. Ebert, Jr., J. Matthew P. Smith, Esquire Chief Deputy District Attorney Timothy L. Clawges, Esquire Public Defender 6