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HomeMy WebLinkAboutCP-21-CR-0001695-2011 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : : CP-21-CR-1695-2011 : V. : CHARGE: 4. THEFT BY DECEPTION : RAYMOND GRANT POZOIC : OTN: T037068-3 : AFFIANT: SGT. BRIAN CURTIS IN RE: OPINION PURSUANT TO Pa. R.A.P. 1925(a) EBERT, J., August 22, 2012 – FACTS On February 22, 2011, a criminal complaint was filed against the 1 Defendant charging him with felony 3 Theft by Deception, felony 3 Theft by Unlawful 23 Taking or Disposition, and felony 3 Receiving Stolen Property. Counsel was appointed to represent the Defendant on June 15, 2011. An information was filed in the case charging the above three charges on September 1, 2011, and the Defendant waived formal arraignment on September 8, 2011. Trial in the matter was initially scheduled to be held on October 10, 2011. The case was continued several times until it was finally scheduled for April 30, 2012. On that date, the Commonwealth, without objection from the Defendant, amended the information to include a count 4, Theft by Deception, graded a misdemeanor 1. After submitting a written guilty plea colloquy to the Court, the Court conducted an oral colloquy during which the Defendant admitted his guilt to count 4 of the amended information, Theft by Deception, in full satisfaction of the other felony 1 18 Pa.C.S.A. Sec. 3922(a) (1) 2 18 Pa.C.S.A. Sec. 3921 (a) 3 18 Pa. C.S.A. Sec. 3925 (a) charges pending against him. There was no plea agreement as to the sentence the Defendant would receive. On June 5, 2012, the Defendant appeared for sentencing. A pre-sentence investigation prepared by the Cumberland County Probation Office recommended the following: 1. Pay the costs of prosecution. 2. Undergo a period of incarceration – credit 113 days – eligible for reentry. 3. Pay a fine. 4. Pay restitution in the amount of $3,337.00 to Deb Houseman. Most importantly the pre-sentence investigation contained the sentencing guidelines computed by the District Attorney’s office. The standard range in this case called for a sentence of between 3 months to 14 months in the Cumberland County Prison. The Defendant had a prior record score of 4. This was based on numerous other theft and bad check charges. The Court sentenced the Defendant to pay the costs of prosecution, pay a fine of $150.00, to pay restitution in the amount of $3,337.00 to Deb Houseman and to undergo imprisonment in the Cumberland County Prison for not less than 11 months nor more than 23 months. The Court made the Defendant eligible for work release and allowed him to participate in the Cumberland County Re-Entry program. As noted in the record, this was a standard range sentence for this case. 2 On June 26, 2012, the Defendant filed a Pro Se “Motion to Appeal, Appoint Counsel.” Attached to the motion was a document entitled “Proof of Facts” which listed the following items: 1. Defendant did not and was not permitted to review pre-sentence investigation. 2. Dedendant (sic) was not permitted to give the Court any information that the defendant is a Commonwealth informant. 3. Defendant was cohershed (sic) by the DAs office to take a plea. 4. Commonwealth did not stick to the plea agreement. 5. A plea agreement was not honored therefore the Defendant should be allowed to withdraw guilty plea. 6. inspection (sic) of presentence by defendant (was not given) 7. Sentence imposed is out-side the sentencing guidelines. 8. Defense Attys and the Commonwealth witheld (sic) Evendice (sic) from this Honorable Court. With the exception of #8 above, none of these allegations are supported by a careful examination of the guilty plea colloquy and sentencing record. With regard to allegation #8, Defendant does not state what “evidence” was withheld from him. On July 10, 2012, the Court appointed counsel to represent the Defendant and ordered him to file a concise statement of errors complained of on appeal on or before July 31, 2012. On July 25, 2012, the Defendant’s statement of matters of complained on appeal was filed and stated the following: 1. Whether the trial court abused its discretion and committed reversible error when it sentenced Appellant to eleven (11) to twenty-three (23) months imprisonment based upon Appellant’s 3 guilty plea to one count of theft by deception, graded as a misdemeanor of the first degree. Appellant’s sole issue on appeal addresses the discretionary aspects of Appellant’s sentence. This opinion is filed pursuant to Pa.R.A.P. 1925 (a). DISCUSSION A. Validity of the Sentence Imposed. As noted, Appellant’s sole issue on appeal challenges the discretionary aspects of his sentence. The standard range sentence in this case was 3-14 months. The Defendant had a prior record score of four. In examining the Defendant’s pre-sentence investigation, this prior record score was based on five prior convictions for Theft by Deception, one conviction for Theft by Unlawful Taking, one conviction for Receiving Stolen Property, and two convictions for Bad Checks. Clearly the Defendant has a demonstrated problem with dealing honestly with the property of others. Of equal concern to this Court was the fact that the Defendant in this case was providing legal advice to the victim regarding settlement of her father’s estate and charging her for it. The Defendant created a document he entitled “Motion to Remove Co-Executor” and led the victim to believe that the document had in fact been filed with the Register of Wills Office knowing this was not true. This crime is more than just an average run of the mill theft. It involved an attack on the integrity of our legal system by a con man holding himself out to having special legal training. The Defendant was sentenced to 11 ½ months – 23 months in the Cumberland County Prison. The crime was a misdemeanor of the first degree, and the Defendant could have been sentenced up to 5 years imprisonment. Accordingly, the sentence he received was a legal sentence within the standard range of the Pennsylvania 4 Sentencing Guidelines. Given the Defendant’s numerous prior convictions for theft offenses, the sentence of this Court was fully justified. B. Potential Error in the Sentencing Proceeding. The Defendant filed his pro se appeal to the Superior Court within thirty days of the date of his sentence, leading the Court to believe that he was in fact advised of his post-sentence rights. However, after examination of the record to include a search by the stenographer who was assigned to this Court on the day in question, there is no evidence that the Defendant was advised that he had ten days to file a motion for modification of sentence. Defendant’s counsel at the sentencing was an experienced criminal defense attorney who routinely places on the record at the time of sentence that she will advise her client of his post sentence rights. However, after careful examination of the record, we cannot determine if this Defendant was advised by the Court or counsel that he had 10 days to file a post-sentence motion. Accordingly, we feel constrained, pursuant to the holding in Commonwealth v. Curry, 465 A.2d 660, (Pa.Super. 1983), to have the case remanded to this Court in order to allow the Appellant to file a Motion for Reconsideration of Sentence Nunc Pro Tunc. By the Court, M. L. Ebert, Jr., J. Matthew P. Smith, Esquire Chief Deputy District Attorney Jacob Jividen, Esquire Court-Appointed Counsel for Defendant 5