HomeMy WebLinkAboutCP-21-CR-0000821-2010
COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
:
:
: CP-21-CR-0821-2010
:
: CHARGES: (2) SIMPLE ASSAULT
v. : (4) RECKLESSLY
: ENDANGERING ANOTHER
: PERSON
:
:
JOSHUA TYLER McMANIGLE : AFFIANT: PTL. STEPHEN GRUNDEN
OTN: K935742-3 :
IN RE: OPINION PURSUANT TO Pa. R.A.P. 1925(a)
EBERT, J., June 11, 2012 –
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Joshua Tyler McManigle (“Defendant”) appeals, pro se, from an Order of Court issued
February 29, 2012, denying an evidentiary hearing and dismissing Defendant’s Amended
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Petition for Post-Conviction Collateral Relief (“PCRA”). Defendant’s concise statement of
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errors complained of on appeal consisted of the following:
A.A violation of the Constitution of this Commonwealth or the Constitution or
laws of the United States, which in the circumstances of the particular case, so
undermined the truth determining process, that no reliable adjucation [sic] of
guilt or innocence could have taken place.
B. Ineffective Assistance of counsel which, in the particular case, so undermined
the truth determining process that no reliable adjudication of guilt or
innocence could have taken place.
1
In Re: PCRA, Order of Court, filed Mar. 12, 2012.
2
Def.’s Amended Petition for Post Conviction Collateral Relief, filed Feb. 27, 2012.
3
Def.’s Rule 1925(b) Statement and Concise Statement of Errors, filed Mar. 26, 2012. Spelling and grammatical
errors in original.
C.Defendant was denied the effective assistance of counsel as garenteed [sic] by
Article 1 § 9 of the Pennsylvania Constitution, and the Sixth and Fourteenth
Amendments of the United States Constitution.
D.A violation of Defendants Fifth and Fourteenth Amendment Due Process
rights, and rights pursuant to Article 1 § 1 of the Pennsylvania Constitution.
E.A violation of Defendants Fifth Amendment rights pertaining to the Double
Jeopardy Clause.
F.A violation of Rule 720(note 12), of the Pennsylvania Rules of Criminal
Procedure where, Defendant was wrongfully sentenced to an aggravated term
of incarceration for the charge of C.C. § 2701(b), Simple Assault.
G.A violation of Rule 704 of the Pennsylvania Rules of Criminal Procedure.
Background
On January 27, 2010, arguing and pushing between Defendant and 69-year-old William
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Lumadue (the “victim”) led to Defendant punching the victim several times in the face. The
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victim suffered broken bones in his face as a result of being punched by Defendant. On
September 27, 2010, Defendant pled guilty to Count 2, Simple Assault, and Count 4, Recklessly
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Endangering Another Person, in full satisfaction of other pending charges. Prior to Defendant’s
guilty plea, Defendant signed a guilty plea colloquy and answered questions at his guilty plea
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proceedings. On the same day and after waiving a presentence investigation, Defendant was
sentenced to 1-2 years in a State Correctional Institute on Count 2 and 1-2 years in a State
Correctional Institute on Count 4. The two sentences were to run consecutively totaling an
4
Transcript of Proceedings, filed Jan. 11, 2012, In Re: Guilty Plea & Sentence Colloquy, Sept. 27, 2010, 3-4,
[hereinafter TP __].
5
TP 4.
6
In Re: Guilty Pleas, Order of Court, filed Oct. 12, 2010; TP 6-7.
7
Guilty Plea Colloquy, filed Sept. 27, 2010; TP 6.
2
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aggregate sentence of 2-4 years. Both sentences were aggravated range sentences and were to
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run consecutively pursuant to an agreement between the Commonwealth and Defendant.
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On December 12, 2011, Defendant filed a motion for post-conviction collateral relief.
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On December 14, 2011, counsel was appointed for the Defendant. On January 13, 2011,
Defendant filed an amended petition for post-conviction collateral relief without signature of
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appointed counsel. On February 1, 2012, appointed counsel submitted a letter explaining why
the appealed issues raised by Defendant were frivolous and filed a motion to withdraw as
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counsel for Defendant. On February 3, 2012, appointed counsel’s motion to withdraw was
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granted and notice was given to Defendant that this Court intended to dismiss Defendant’s
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Amended Post-Conviction Collateral Relief request. On February 27, 2012, Defendant filed a
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new PCRA. On February 29, 2012, after twenty (20) days passed pursuant to Pa.R.Crim.P. 907,
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this Court ordered and directed that Defendant’s PCRA be dismissed without a hearing. On
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March 7, 2012, Defendant mailed a notice of appeal. On March 12, 2012, Defendant was
directed to submit a concise statement of matters complained of on appeal pursuant to Pa.R.A.P.
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1925(b)(1). On March 26, 2012, Defendant filed his concise statement of matters complained
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of on appeal. Pursuant to Pa. R.A.P. 1925(a), the following opinion is submitted. Defendant’s
appeal raises claims regarding the knowing and voluntary nature of pleading guilty,
ineffectiveness of counsel, and issuance of an illegal sentence.
8
In Re: Sentence, Order of Court, filed Oct. 12, 2010; TP 7-9.
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TP 8-9.
10
Def.’s Motion for Post Conviction Collateral Relief, filed Dec. 12, 2011.
11
In Re: PCRA, Order of Court, filed Dec. 14, 2011.
12
Def.’s Amended Petition for Post Conviction Colladeral [sic] Relief, filed Jan. 13, 2011.
13
Motion for Leave to Withdraw as Counsel, filed Feb. 1, 2012.
14
Order of Court, Motion to Leave, Filed Feb. 3, 2012.
15
In Re: PCRA, Order of Court, filed Feb. 3, 2012.
16
Def.s’ Amended Petition for Post Conviction Collateral Relief, filed Feb. 27, 2012.
17
In Re: Order of Court, filed Feb 29, 2012.
18
Notice of Appeal, verified Mar. 7, 2012.
19
In Re: Notice of Appeal to Superior Court, Order of Court, filed Mar. 12, 2012.
20
Def.’s Rule 1925(b) Statement and Concise Statement of Errors, filed Mar. 26, 2012. Errors in original.
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Discussion
I. STANDARD OF REVIEW
“The standard of review for an order denying post-conviction relief is limited to whether
the record supports the PCRA court’s determination and whether that decision is free of legal
error.” Commonwealth v. Taylor, 933 A.2d 1035, 1040 (Pa. Super. 2007); see also
Commonwealth v. Hackett, 956 A.2d 978, 983 n.10 (Pa. 2008). “The PCRA court’s findings will
not be disturbed unless there is no support for the finding in the certified record.”
Commonwealth v. Spencer, 892 A.2d 840, 841 (Pa. Super. 2006). Additionally, “[t]here is no
absolute right to an evidentiary hearing on a PCRA petition, and if the PCRA court can
determine from the record that no genuine issues of material fact exist, then a hearing is not
necessary.” Commonwealth v. Jones, 942 A.2d 903, 906 (Pa. Super. 2008).
II. INEFFECTIVE ASSISTANCE OF COUNSEL
Defendant has the burden of disproving the presumption that counsel provided effective
representation. Commonwealth v. Springer, 961 A.2d 1262, 1266-67 (Pa. Super. 2008). The
Pennsylvania Supreme Court has articulated a three prong test to determine whether a defendant
can fulfill the burden:
[T]o succeed on a claim that counsel was ineffective, an appellant must
demonstrate that: (1) the underlying claim is of arguable merit; (2) counsel had no
reasonable basis for the act or omission in question; and (3) he suffered prejudice
as a result of counsel’s deficient performance; i.e., there is a reasonable
probability that, but for counsel’s error, the outcome of the proceeding would
have been different.
Commonwealth v. Harris, 852 A.2d 1168, 1173 (Pa. 2004) (citing Commonwealth v. Pierce, 786
A.2d 863, 866 (Pa. 2001)). Additionally, “[t]rial counsel cannot be deemed ineffective for failing
to raise a meritless claim.” Id. Defendant must satisfy all three prongs to prove counsel
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ineffective and if “the evidence fails to meet a single one of these three prongs” the
ineffectiveness claim may be denied. Springer, 961 A.2d at 1267.
A.Attorney Linda S. Hollinger was effective in representing Defendant during his
guilty plea.
In Commonwealth v. Allen, the Pennsylvania Supreme Court addressed when an
ineffectiveness claim may succeed regarding a guilty plea:
Allegations of ineffectiveness in connection with the entry of a guilty plea will
serve as a basis for relief only if the ineffectiveness caused appellant to enter an
involuntary or unknowing plea. In determining whether a guilty plea was entered
knowingly and intelligently, a reviewing court must review all the circumstances
surrounding the entry of that plea.
732 A.2d 582, 587 (Pa. 1999) (internal citations omitted). It is well established that a court is
“free to consider the totality of the circumstances surrounding the [guilty] plea” to determine if a
Defendant knowingly and voluntarily entered into the plea. Id. at 588-89.
In the present case, Defendant raises the following issues in his Amended PCRA
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claiming ineffectiveness of Attorney Hollinger’s representation:
A) Attorney Linda S. Hollinger failed to fully explain and acknowledge the rights
in which Defendant would forfeit upon entering a plea of guilty. Guilty plea was
explained at face value with no explanation of specifics.
B) Attorney Linda S. Hollinger provided false and/or coercive information
stating:
1. That Defendant’s prior record score was higher than it actually is;
2. That the District Attorney was seeking mandatory minimum of 2 years, and;
3. Although Defendant is entitled to a jury trial of my peers, as promised by
Defendant’s sixth amendment, the jury would most likely consist of, “older white
people”.
A review of the record reveals that Defendant’s claim is completely without merit. Defendant’s
signed guilty plea colloquy indicated that he understood the rights he would be giving up, nature
21
Def.’s Amended Petition for Post Conviction Relief, filed Feb. 27, 2012. Errors in original.
5
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of the offenses charged, and possible maximum penalties associated with those offenses.
Additionally, Defendant answered “no” to the question of whether he had received any threats or
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promises to persuade him to plead guilty. Also, at the guilty plea proceedings this Court asked
Defendant if he heard the possible penalties, had reviewed the guilty plea with his attorney,
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understood his rights, and wanted to enter a plea of guilty. Defendant answered in the
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affirmative to all of these questions. Defendant subsequently pled guilty to Counts 2 and 4 with
an aggravated range sentence of 2-4 years pursuant to a negotiated plea agreement in full
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satisfaction of the other charges pending, which included aggravated assault.
It must be noted that at the time the Defendant was arraigned on July 14, 2010, he was
provided with a discovery packet which included a Pennsylvania Commission on Sentencing
Guideline sentence form on the charge of Aggravated Assault – cause S.B.I. (serious bodily
injury). That guideline form indicated that the Defendant, if convicted of Aggravated Assault,
would be facing a standard range sentence of 54 months – 72 months. Even the mitigated range
for Aggravated Assault - Causing Serious Bodily Injury - was 42 months. Clearly the plea
negotiated by the Defendant and his counsel with the Commonwealth minimized the risk that
this Defendant would be facing a minimum sentence in the standard range starting at 4 1/2 years.
Such a sentence would have been more than twice the minimum sentence the Defendant agreed
to. Therefore, this Court finds that under the totality of the circumstances Attorney Hollinger
effectively represented Defendant during his knowing and voluntary guilty plea.
22
Guilty Plea Colloquy, filed Sept. 27, 2010.
23
Guilty Plea Colloquy, question 13.
24
TP 5-6.
25
TP 5-6.
26
TP 3, 6-7.
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B.Defendant was not denied effective assistance of counsel when appointed counsel,
Attorney Stacy B. Wolf, was granted a motion for leave to withdraw.
Appointed counsel is required to submit a letter of “no-merit” in compliance with
Turner/Finley before a request to withdraw may be granted:
under the
“Before an attorney can be permitted to withdraw from representing a petitioner
PCRA
, Pennsylvania law requires counsel to file and obtain approval of a “no-merit” letter
pursuant to the mandates of Turner/Finley. The “no-merit” letter should include a description
of the nature and extent of the attorney’s review, a list of the issues that the PCRA petitioner
wishes to have reviewed, and an explanation of why the issues lack merit. Substantial
compliance with these requirements will satisfy the criteria.”
Commonwealth v. Karanicolas, 836 A.2d 940, 946 (Pa. Super. 2003) (internal citations omitted).
In the present case, Attorney Wolf fully complied with these requirements and was granted
permission to withdraw as counsel for Defendant. Attorney Wolf submitted to this Court a no-
merit letter that stated that counsel could find no issues that possessed merit. Within the no-merit
letter, Attorney Wolf addressed Defendant’s claim that Attorney Hollinger was ineffective for (a)
“not raising his Recidivism Risk Reduction Incentive (“RRRI”) eligibility at the time of
sentencing”, and (b) not requesting that his sentence be modified so that his sentences would run
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concurrently rather than consecutively.”
First, Attorney Wolf notes that Defendant was ineligible for RRRI due to prior
convictions for violent behavior. As Attorney Wolf correctly states, under the RRRI an “eligible
offender” is a person who “[d]oes not demonstrate a history of present or past violent behavior.”
61 Pa.C.S.A. § 4503. Defendant had previously pled guilty to Recklessly Endangering Another
Person and Simple Assault in 2007 and 2009, respectively. Defendant’s previous convictions for
personal injury crimes of a violent nature classified him ineligible for the RRRI program. See 18
P.S. § 11.103 (relating to assault). Therefore, Attorney Hollinger was not ineffective for failing
to raise RRRI eligibility for Defendant.
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Appointed Counsel’s “no-merit” letter submitted to this Court Jan. 31, 2012.
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Second, Attorney Wolf notes that Simple Assault and Recklessly Endangering Another
Person in this case would not merge for sentencing purposes because the 2-4 year sentence
imposed was in accordance with an agreed-upon guilty plea between Defendant and the
Commonwealth. Defendant agreed to an amendment of the charges to include Recklessly
Endangering Another Person to allow for a guilty plea to both charges, Simple Assault and
Recklessly Endangering Another Person, to run consecutively. The guilty plea colloquy and
proceedings make it clear that Defendant knowingly and intelligently accepted the terms of the
plea in exchange for not being prosecuted for pending charges which included a much higher
possible sentence. Therefore, Attorney Hollinger was not ineffective for failing to file a motion
to modify Defendant’s sentence.
This Court was satisfied that Attorney Wolf’s no-merit letter was in substantial
compliance with Turner/Finley as it addressed Defendant’s claim and the frivolous nature of
Defendant’s PCRA. Therefore, Defendant was not denied effective assistance of counsel when
Attorney Wolf’s Motion to Withdraw was granted.
III. VALIDITY OF DEFENDANT’S NEGOTIATED GUILTY PLEA
It is well recognized that the guilty plea and the frequently concomitant plea
bargain are valuable implements in our criminal justice system. The disposition of
criminal charges by agreement between the prosecutor and the accused, … is an
essential component of the administration of justice. Properly administered, it is
to be encouraged. In this Commonwealth, the practice of plea bargaining is
generally regarded favorably and is legitimized and governed by court rule.
Commonwealth v. Schmoyer, 421 A.2d 786, 789-90 (Pa. Super. 1980) (internal citations
but also the
omitted). “[A] plea agreement may specify not only the charges to be brought
specific penalties to be imposed
.” Commonwealth v. Parsons, 969 A.2d 1259, 1267 (Pa. Super.
2009). “A ‘mutuality of advantage’ to defendants and prosecutors flows from the ratification of
the bargain.” Id. at 1268.
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This Court interprets Defendant’s claim for violation of his “Double Jeopardy rights” as a
claim challenging the non-merger of Simple Assault and Recklessly Endangering Another
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Person at the time of sentencing. This Court finds the Superior Court cases of Commonwealth
v. Thomas and Commonwealth v. Ousley informative as to the issues of merger and standards of
review. 879 A.2d 246 (Pa. Super. 2005); 21 A.3d 1238 (Pa. Super. 2011). Although a joined
reading of Thomas (requiring merger of Simple Assault and Recklessly Endangering Another
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Person) and Ousley (reviewing the illegality of non-merger of charges in a negotiated plea)
may seem to suggest an illegal sentence for Defendant, the specific circumstances of the present
case allow for a legal sentence and for the negotiated plea to be upheld.
A. Merger of Simple Assault and Recklessly Endangering Another Person is not
required.
Defendant cites Commonwealth v. Thomas in support of his argument that Simple
Assault and Recklessly Endangering Another Person should merge for sentencing purposes,
however, Thomas is distinguished from the present case. See 879 A.2d at 262-63 In Thomas, a
jury found the Defendant guilty of two counts Simple Assault, two counts Terroristic Threats,
Recklessly Endangering Another Person, Retaliation Against a Witness, and Resisting Arrest. Id.
arising from the same facts
at 251. The Superior Court held that for charges , Simple Assault
merges into Recklessly Endangering Another Person as a lesser included offense for sentencing
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“As a preliminary matter, we note that the merger claims have their root in the Double Jeopardy Clause of the
United States Constitution, and that we are guided in this area by 42 Pa.C.S. § 9765.” Commonwealth v. Williams,
980 A.2d 667, 672 (Pa. Super. 2009). Although Defendant’s 1925(b) and Amended PCRA do not specifically
address the merger of Simple Assault and Recklessly Endangering Another Person, Attorney Wolf addresses the
issue in her no-merit letter.
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Although Ousley has similar facts (i.e., an appeal from a dismissal of a PCRA petition following a no-merit letter
where the defendant questioned whether certain charges of a negotiated guilty plea should merge for sentencing
purposes), the present case differs in that Defendant was aware of the exact sentence he received. See 21 A.3d at
1238. In Ousley, the defendant did not negotiate the length of probation and counsel left the determination of
probation to the discretion of the trial court. Id. at 1241. Before this Court is a factual scenario where Defendant was
entirely aware of all punishment he would receive with no ambiguity when he pled guilty. And most importantly, as
in Ousley, merger should not be required because the Defendant admitted that the actions which gave rise to the
charges were separate criminal acts. Id. at 1243.
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purposes and, thus, the consecutive terms of 1-2 years for each charge was vacated and
remanded for re-sentencing. Id. at 263; see also Commonwealth v. Artis, 439 A.2d 1199, 1202
(Pa. Super. 1982) (“In the instant case, there is no doubt that appellant was charged with
committing but one act-that of stabbing Wilson in the stomach-and the various charges had to do
with the legal interpretation of that act. Therefore, he could only be sentenced for but one
offense.”).
However, in the present case, Defendant specifically pled that his attack on the victim
two separate factual events
constituted . Defendant pled that he was guilty of Simple Assault
after he struck the victim in the face for the first time then stated that he was guilty of Recklessly
Endangering Another Person when he broke bones in the 69-year-old victim’s face with a
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separate, second punch. Defendant’s guilty plea clearly acknowledges a separate action with a
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second punch to the face of the victim:
THE COURT: On the amended information, Recklessly Endangering
Another Person is that you engaged in reckless conduct which may have placed
another person in danger of death or serious bodily injury. Here it is alleged that,
a second time
again, you punched a person who was 69 years of age and that
could have endangered his health. Do you understand the elements of that
offense?
THE DEFENDANT: Yes, sir.
THE COURT: Is that what you did?
THE DEFENDANT: Yep.
As represented in Defendant’s own admissions, the two charges did not originate from one
singular action but rather were two distinct factual events. Therefore, merger of the sentences of
Simple Assault and Recklessly Endangering Another Person is not required given the factual
circumstances of this case. It is patently clear to this Court that the District Attorney’s Office
30
TP 5.
31
TP 5 (emphasis added).
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was intent on obtaining the mandatory two year sentence required under 42 Pa.C.S.A. §9717
which covers “Sentences for Offenses Against Elderly Persons.” The Commonwealth had filed a
“Notice of Mandatory Sentence” on June 8, 2010, advising the Defendant of this. The plea
agreement allowing the Defendant to plead guilty to two misdemeanors of the second degree was
conditioned on the Defendant agreeing to accept the maximum 1 – 2 year sentence on each
charge and allowing the sentences to be run consecutively so as to equal the 2 – 4 year sentence.
The Defendant consciously and wisely chose this plea agreement to avoid the potential standard
range sentence which began at 54 months and could have been as high as 72 months if convicted
of Aggravated Assault.
B. Merger would not be appropriate where Defendant specifically negotiated
and pled to the sentence received.
Unlike Thomas, in the present case Defendant agreed to the sentence he received. The
Defendant in Thomas was convicted by a jury, whereas here, Defendant while at all times
represented by counsel, carefully negotiated a guilty plea that was knowing, intelligent, and
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voluntary. At the time of the negotiated guilty plea, Defendant, with a prior record score of 3,
was facing charges of Aggravated Assault, Simple Assault, and Harassment with a mandatory
minimum sentence of 2 years and no parole before serving the minimum for an offense against
an elderly person. See 42 Pa.C.S.A. § 9717(a)-(b) (relating to aggravated assault). Rather than
face the possibility of being convicted and receiving a longer sentence, Defendant negotiated
with the Commonwealth to plead guilty for an aggregate sentence of 2-4 years for the charges of
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Simple Assault and Recklessly Endangering Another Person. Defendant received the exact
sentence that he bargained to receive. To allow Defendant to knowingly and voluntarily enter
32
Supra, section A.
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An amendment to the charges was authorized by Defendant specifically to allow Recklessly Endangering Another
Person to be added.
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into a negotiated plea and subsequently avoid serving his sentence would be counterintuitive and
unjust. It is clear from the record that the important aspect of the negotiated plea was the amount
of time to be served. Therefore, Defendant’s guilty plea and sentence should be upheld.
Conclusion
After a review of the record, this Court finds no genuine issues of material fact exist in
Defendant’s PCRA, and the claims are without merit. Defendant, with the assistance of effective
counsel, negotiated with the Commonwealth an accepted guilty plea for a total time of 2-4 years
imprisonment. This plea prevented the Defendant from possible exposure to a standard range
sentence of 54 – 72 months for an assault on a 69-year-old man.
By the Court,
M. L. Ebert, Jr., J.
District Attorney’s Office
Joshua Tyler McManigle, Pro Se
Defendant
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