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HomeMy WebLinkAboutCP-21-CR-0002705-2008 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : : CP-21-CR-2705-2008 : : CHARGE: 1. CRIMINAL CONSPIRACY TO : UNLAWFUL DELIVERY, MANUFACTURE, : OR POSSESSION WITH INTENT TO : DELIVER A SCHEDULE I AND/OR II, V. : CONTROLLED SUBSTANCE; : 2. UNLAWFUL DELIVERY OR : MANUFACTURE OR POSSESSION WITH : INTENT TO DELIVER A SCHEDULE II, : CONTROLLED SUBSTANCE – COCAINE : 3. UNLAWFUL DELIVERY OR : MANUFACTURE OR POSSESSION WITH : INTENT TO DELIVER A SCHEDULE I, : CONTROLLED SUBSTANCE : ROMELL THOMPSON : OTN: L442499-1 : AFFIANT: TPR. JAMES BORZA IN RE: DEFENDANT’S PETITION FOR POST CONVICTION COLLATERAL RELIEF ORDER OF COURT th AND NOW , this 24 day of January, 2012, upon consideration of the Defendant’s Petition for Post Conviction Collateral Relief, the briefs filed by the parties, and after hearing, IT IS HEREBY ORDERED AND DIRECTEDDENIED that the Petition is . By the Court, M. L. Ebert, Jr., J. Matthew P. Smith, Esquire First Assistant District Attorney Allen Welch, Esquire Court-Appointed for Defendant bas 2 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : : CP-21-CR-2705-2008 : : CHARGE: 1. CRIMINAL CONSPIRACY TO : UNLAWFUL DELIVERY, MANUFACTURE, : OR POSSESSION WITH INTENT TO : DELIVER A SCHEDULE I AND/OR II, V. : CONTROLLED SUBSTANCE; : 2. UNLAWFUL DELIVERY OR : MANUFACTURE OR POSSESSION WITH : INTENT TO DELIVER A SCHEDULE II, : CONTROLLED SUBSTANCE – COCAINE : 3. UNLAWFUL DELIVERY OR : MANUFACTURE OR POSSESSION WITH : INTENT TO DELIVER A SCHEDULE I, : CONTROLLED SUBSTANCE : ROMELL THOMPSON : OTN: L442499-1 : AFFIANT: TPR. JAMES BORZA IN RE: DEFENDANT’S PETITION FOR POST CONVICTION COLLATERAL RELIEF OPINION AND ORDER OF COURT Ebert, J., January 24, 2012 - PROCEDURAL HISTORY On June 25, 2009, a jury found Defendant Romell Thompson guilty of the above charges. On September 4, 2009, Defendant filed Post-Sentence Motions for New Trial which this Court denied on September 25, 2009. On October 16, 2009, Defendant appealed the jury verdict to the Superior Court. In a memorandum opinion filed August 30, 2010, the Superior Court affirmed the Defendant’s conviction. The Superior Court noted that the Defendant raised only one issue for their review: “Whether Appellant’s convictions for Possession with Intent to Deliver a Controlled Substance (2 counts) and Criminal Conspiracy was [sic] against the weight of the evidence[?]” Commw v. Thompson, 11 A.3d 1043 (Pa. Super. 2010) (unpublished memorandum). In that opinion, the Superior Court held that “we find no palpable abuse of discretion in the trial court’s denial of the Appellant’s weight claim.” Id. at 2. Judgment of the Defendant’s sentence was affirmed. On September 8, 2010, the Defendant’s attorney, Michael Rentschler, sent a letter (Commonwealth Ex. 2) to the Defendant with a copy of the Superior Court opinion notifying the Defendant of his right to appeal the decision within 30 days. (PCRA Hearing, Notes of Testimony dated July 6, 2011, pages 8, 26, 40 (hereinafter PCRA N.T. p. _)). Unbeknown to Attorney Rentschler, the Defendant had been transported pursuant to a writ to Newark, Essex County, New Jersey to address unrelated criminal matters. (PCRA N.T. 9). The Defendant’s mail was not forwarded by SCI-Greensburg to Essex County, New Jersey. Accordingly, the Defendant maintains that he did not get Attorney Rentschler’s September 8, 2010, letter until November 15, 2010, when he returned to SCI-Greensburg. Obviously, this date was outside the permitted 30 day direct appeal period. The letter specifically outlined the parameters used by the Supreme Court to determine whether or not it would grant review of the Defendant’s Superior Court decision. Based on Attorney Rentschler’s review of the case, he indicated to the Defendant that in all probability the Pennsylvania Supreme Court would deny review. Interestingly, we cannot lose sight of the fact that this Defendant was “experienced” in the criminal justice system. An examination of his criminal record shows that he has multiple convictions for rather serious offenses. On this case, he came before the Court with a prior record score of 5. While this has no direct bearing on the present case, it does establish that the Defendant was not a novice in dealing with the procedures of criminal court. One need only 2 examine the Cumberland County Clerk of Court’s file and the Defendant’s Probation file to view all the letters and pro se motions filed by the Defendant. Perhaps most telling, is the fact that the Defendant filed a pro se application for relief sent to the Pennsylvania Superior Court requesting that he be permitted additional time to file his appeal to the Supreme Court. (See Commw. Exhibit #1). However, the one thing he did not do, and the one thing that may have avoided this entire Post Conviction Collateral Relief issue, was write to his attorney to tell him that he was going to be or had been transferred from SCI-Greensburg to Essex County, New Jersey. This Court is convinced that had Attorney Rentschler had this information, he would have contacted the Defendant to determine his wishes regarding an appeal to the Supreme Court. In any regard, the Defendant filed a Pro Se Motion for Post Conviction Collateral Relief (hereinafter PCCR) on April 14, 2011. Counsel was appointed to represent the Defendant and given an opportunity to file an Amended Petition on or before May 15, 2011. No Amended Petition was filed and hearing on the matter was held on July 6, 2011. A transcript of that hearing was filed on October 20, 2011. Both the Defendant and the Commonwealth then filed briefs in the matter. FACTS Normally, the underlying facts supporting the conviction of the Defendant are usually not material in resolving PCCR issues of the type raised in this case. However, given this Court’s final decision in this matter, the underlying facts become relevant. On October 3, 2008, Pennsylvania State Trooper Borza, while working with the Cumberland County Drug Task Force, along with a confidential informant, executed a controlled buy of heroin in Silver Spring 3 1 Township. The heroin was purchased from Shalonda Jenkins at a Wal-Mart parking lot in 2 Silver Spring Township. After the purchase, Trooper Borza and other officers followed Ms. Jenkins back to the Travelodge Motel in Middlesex Township where she was staying and 3 arrested her in the parking lot after watching her complete another drug sale. Trooper Borza obtained a search warrant to search Ms. Jenkins’s room. In the room, officers found a black 45 duffel bag which contained heroin, a bag of cocaine, cash in the amount of $1,000, and a man’s 6 wallet. Trooper Borza recognized $700 of the $1,000 found in the bag as “buy money” from the 78 controlled buy earlier in the day. The wallet belonged to Defendant. Three bags of marijuana, 9 baggies, and a digital scale were also found in the room. Defendant was in the room when 10 Officer Dale entered the room to secure it during the search warrant. Trooper Borza interviewed the Defendant, and Defendant stated that he knew heroin was being sold from the room and that Defendant and Ms. Jenkins had brought heroin from New Jersey to 1112 sell in Carlisle. Defendant was placed under arrest at that time. Defendant was found guilty of all charges at a jury trial on June 24-25, 2009. 13 Ms. Jenkins, a twenty-five-year-old college student, testified that she drove Defendant about three hours from Essex County, New Jersey, to the Travelodge in Middlesex on 14 October 2. Ms. Jenkins and Defendant have been involved in a relationship on and off for 15 about four years. Defendant is thirty-two years old. The day before the approximately 180 1 Notes of Testimony, Jun. 24, 2009 17 (hereinafter N.T. ___). 2 N.T. 17. 3 N.T. 27. 4 N.T. 37. 5 N.T. 35. 6 N.T. 38. 7 N.T. 35. 8 N.T. 39. 9 N.T. 39. 10 N.T. 100. 11 N.T. 43. 12 N.T. 43. 13 N.T. 138. 4 mile trip from New Jersey to Carlisle, Ms. Jenkins testified that Defendant had been in the 16 emergency room with “walking pneumonia” and that she picked up medicine for him. Ms. Jenkins said that she arranged the drug deal in the Wal-Mart parking lot while Defendant 17 remained in the hotel room. Detective Kurtz of the Carlisle Borough Police Department has worked for the last seven years on the Cumberland County Drug Task Force and has received specialized training in 1819 narcotics trafficking. Detective Kurtz testified as an expert in narcotics trafficking and explained to the jury that it is common for drug traffickers to travel with someone, to have 20 someone drive them to an unknown area, and to have someone there as protection. He also explained to the jury that it is common in drug deals for one person to remain in a hotel room or 21 stash house to protect the cash and drugs while the other person is out doing drug transactions. The above facts were accepted by the Superior Court as being accurate. Commw v. Thompson, 11 A.3d 1043 (Pa. Super. 2010) p. 2. Based on these facts, this Court denied the Defendant’s Motion for New Trial based on the Defendant’s claim that the verdict in the jury trial was against the weight of the evidence. Again, the Superior Court affirmed this decision. (See In Re: Opinion Pursuant to Pa.R.C.P. 1925, December 14, 2009, attached.) DISCUSSION Under §9543 of the PCRA, 42 Pa.C.S.A. §9543, the petitioner can establish an ineffective assistance of counsel claim by showing (1) that he has been convicted of a crime under the laws of the Commonwealth of Pennsylvania, (2) that he is currently incarcerated, and 14 N.T. 151-152. 15 N.T. 139. 16 N.T. 139. 17 N.T. 141. 18 N.T. 105. 19 N.T. 106. 20 N.T. 117. 21 N.T. 117. 5 (3) that the conviction resulted from “ineffective assistance of counsel which, in the circumstances of the particular case, so undermined the truth determining process that no reliable adjudication of guilt or innocence could have taken place.” 42 Pa.C.S.A. 9543(2) (ii). Failure of counsel to perfect a timely appeal may under certain circumstance constitute ineffective assistance of counsel. Commonwealth v. Lantzy, 736 A.2d 564 (Pa. 1999). Obviously, Romell Thompson was convicted of the above captioned crimes and he is currently incarcerated in the State Correctional Institute as a result of his conviction. The question remains then, was Attorney Rentschler, “under the circumstances of this particular case, ineffective?” The Defendant maintains that since Attorney Rentschler did not file a Petition for Allowance of Appeal to the Supreme Court pursuant to Pa.R.A.P., Rules 1112, 1113, he provided ineffective assistance of counsel per se. Thus, the Defendant maintains that the inquiry is over, and he should be awarded restoration of his appellate rights so that he can now file an Allowance of Appeal to the Supreme Court. However, this Court finds that resolution of this issue is not so simple. In Commonwealth v. Liebel, 825 A.2d 630, the Court held that a defendant has a right to effective counsel for the purpose of filing a Petition for Allowance of Appeal. When a Defendant requests counsel to file a Petition for Allowance of Appeal and counsel fails to do so, that attorney’s unjustified failure to perfect a requested appeal is the functional equivalent of having absolutely no representation at all on direct appeal. When this occurs, there is no need for the appellant to show the merits of the underlying issues he would have raised on appeal.” Id. at 635. However, in Commonwealth v. Bath, the Superior Court stated “Liebel applies only where the appellant has requested the filing of a [P]etition for [A]llowance of [A]ppeal and counsel has failed to comply.” Commonwealth v. Bath, 907 A.2d 619, 623 (Pa. Super. 2006). In 6 Bath, the defendant complained that his counsel was ineffective for failing to file a Petition for Allowance of Appeal and for failing to consult with him regarding the matter. Id. at 622. The Bath Court recognized that in order for a defendant to maintain an ineffectiveness claim for failing to file a Petition for Allowance of Appeal, the defendant must first prove that he requested counsel to file an appeal and that counsel disregarded that request. Id. at 622. Here, it is clear that the Defendant has not proven that he requested counsel to file an appeal. Of course, Defendant maintains this is not his fault. Because of his transfer from SCI- Greensburg to Essex County, New Jersey, he never received Attorney Rentschler’s letter advising him that his direct appeal to the Superior Court had been denied thereby triggering the 30 day direct appeal period. As established by Attorney Rentschler’s letter to the Defendant on September 8, 2010, Attorney Rentschler did attempt to consult with the Defendant. Candidly, in accordance with his professional experience and training, Attorney Rentschler advised the Defendant that the Pennsylvania Supreme Court would probably deny any Petition for Allowance of Appeal. He also advised that if the Petition for Allowance of Appeal was denied that he would have one year in which to file a Petition under the Post Conviction Collateral Relief Act. As stated previously, this Defendant was not a novice to the criminal justice system. He had constantly corresponded with the Court and filed various pro se motions. He did not write his attorney regarding his transfer to Essex County, New Jersey. One might fault the Department of Corrections for not forwarding the Defendant’s mail, but given the temporary nature of “Writ” transfers, it was unlikely that the Department knew how long the Defendant would be in New Jersey. Therefore, it was not unreasonable to simply hold his mail. Nor do we find Attorney Rentschler’s response to this situation unreasonable. A defense attorney who has a client 7 sentenced to state prison has every logical expectation that the client will be in the state prison to which he is assigned. It therefore follows that when counsel sends a letter to his client in a state prison he can expect that the client will receive the letter. On this record, Attorney Rentschler was clearly “consulting” with his client. When he did not hear back from his client, it was also not unreasonable to believe that the client understood that his likelihood of succeeding in the Supreme Court with a Petition for Allowance of Appeal was improbable and that he would therefore not pursue the appeal. Be all this as it may, this Court will not hold the fact that the Defendant did not actually request his attorney to file a Petition for Allowance of Appeal against him given these circumstances. However, this does not end the inquiry. The Bath Court went on to discuss when counsel has a duty to “adequately consult with the defendant as to the advantages and disadvantages of an appeal where there is reason to think that a defendant would want to appeal.” Id. at 623. The Bath Court noted, “counsel has a constitutional duty to consult with a defendant about an appeal where counsel has reason to believe either ‘(1) that a rational defendant would want to appeal (for example, because there are non-frivolous grounds for appeal), or (2) that this particular defendant reasonably demonstrated to counsel that he was interested in appealing.’” Id. at 623 (citations omitted). Realistically, in the world of court-appointed free counsel for Defendants facing long prison sentences, short of a Defendant actually declaring that he no longer wants any further appeals, every criminal Defendant is interested in appealing. It costs them nothing, they have nothing to lose, and hope springs eternal. Thus, we can say realistically that when Attorney Rentschler sent his September 8, 2010, letter (Commonwealth’s Exhibit 2) he fully expected the Defendant to tell him to file the Petition for Allowance of Appeal. He was therefore probably surprised when he received no response. 8 The Bath Court, however, went on to say that for a Defendant to establish a duty to consult, he must indicate issues that have potential merit for further review. This, of course, does not require appellant to demonstrate that the Supreme Court would likely grant a Petition for Allowance of Appeal, but only that the Defendant must show that any issues rise above frivolity. Id. at 623-24. “[A]n appellant may establish a duty to consult by indicating issues that had any potential merit for further review…This does not require appellant to demonstrate that the Supreme Court would likely grant review to a petition for allowance of appeal, but only that appellant must show that any issue rises above frivolity.” Id. at 623-24. In Bath, the Court found that the defendant did not attempt to show that any issue he raised was not frivolous and therefore counsel did not owe him any duty to consult. Id. at 624. On direct appeal, Bath challenged the sufficiency of the evidence and several other issues that were deemed waived for failure to preserve them at trial. Id. The Bath Court found that “appealing such issues further appears manifestly frivolous…It was incumbent upon Bath to demonstrate to this Court why that was not the case. Bath has offered no argument in support of any of the issues raised on direct appeal.” Id. Further, the Bath Court found that the defendant “has not met his burden of showing how he was prejudiced by counsel’s failure to consult with him regarding a petition for allowance of appeal. In the absence of prejudice, we cannot find that counsel was ineffective.” Id. In applying Bath to the present facts, the only evidence offered by the defendant that he desired counsel to file a Petition for Allowance of Appeal was testimony that when defendant received notice of denial on November 15, 2010, he filed a pro se motion to reinstate his appeal rights to the Superior Court because he wanted the Supreme Court to review the Superior Court’s decision that the Defendant’s conviction was not against the weight of the evidence. (N.T. 10). 9 Further, in looking to whether defendant’s counsel had a duty to consult with the defendant about a possible appeal, the court will look to whether counsel had reason to believe that a rational defendant would want to appeal because there are non-frivolous grounds, or that the defendant reasonably demonstrated that he was interested in appealing a decision. Bath, 907 A.2d at 623. Further when the defendant claims that counsel failed to consult with the defendant and defendant had not requested the filing of a petition, the defendant must establish that a duty to consult was owed by “indicating issues that had any potential merit for further review…This does not require appellant to demonstrate that the Supreme Court would likely grant review to a petition for allowance of appeal, but only that appellant must show that any issue rises above frivolity.” Id. at 623-24. In this case, the defendant’s counsel wrote a letter on September 8, 2010, notifying the defendant of the Superior Court’s denial, what were proper grounds for a Petition for Allowance of Appeal, and the defendant’s likelihood of success. (N.T. 8, 26). Counsel mailed this letter to SCI-Greensburg, where he thought the defendant was incarcerated, because the defendant failed to notify him that he would be out of state on a writ. (N.T. 41-42). Under these circumstances, defendant’s counsel acted reasonably in attempting to notify and counsel the defendant on his appeal rights moving forward. As such, the defendant must show that any issues rise above frivolity. This Court finds that the defendant has failed to show that the issues rise above frivolity. In his Superior Court appeal, the defendant challenged only the weight of the evidence. The Superior Court, based upon the facts stated above, found that the trial court did not palpably abuse its discretion in ruling on the weight claim, and denied the defendant’s appeal. In Bath, the court found that further appeal of a sufficiency of the evidence claim (among other issues) was “manifestly frivolous.” As such, the defendant failed to show how he was prejudiced by 10 counsel’s failure to consult with him regarding a Petition for Allowance of Appeal. Bath, 907 A.2d at 624. One cannot lose sight of the remedy the Defendant is seeking. If this Court found that Defendant’s counsel was ineffective, he would then be allowed to file a Petition for Allowance of Appeal to the Supreme Court. This Court has worked in the criminal justice system for over 30 years as a public defender, private defense counsel, prosecutor and judge. Given the concise, direct opinion of the Superior Court regarding the Defendant’s weight of evidence claim, we find it extremely unlikely that the Supreme Court would grant the Defendant an Allowance of Appeal in this case. Of course, this Court does not wish to infer that it knows the judgment of the Supreme Court. We apply only our understanding of the precedential case law regarding the determination that a weight of evidence claim at this stage of the proceedings has been ruled frivolous. The Defendant got a fair trial and received a just sentence. Further expenditure of public and judicial resources on this case is simply not warranted. Accordingly, the following Order of Court will be entered, th AND NOW , this 24 day of January, 2012, upon consideration of the Defendant’s Petition for Post Conviction Collateral Relief, the briefs filed by the parties, and after hearing, IT IS HEREBY ORDERED AND DIRECTEDDENIED that the Petition is By the Court, M. L. Ebert, Jr., J. Matthew P. Smith, Esquire First Assistant District Attorney 11 Allen Welch, Esquire Court-Appointed for Defendant bas 12