HomeMy WebLinkAbout90-0904-r CriminalCOMMONWEALTH IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
V.
ANTONIO HOUSTON 904-R CRIMINAL 1990
IN RE: POST CONVICTION RELIEF ACT PETITION
BEFORE OLER, J.
ORDER OF COURT
AND NOW, this 3 Dday of December, 1993, upon consideration
of petitioner's petition under the Post Conviction Relief Act,
following a hearing, and for the reasons stated in the accompanying
Opinion, the petition is DENIED.
BY THE COURT,
ax"
J Wesley Oler, ., J.
V
Alison Taylor, Esq.
Assistant District Attorney
Dale F. Shughart, Jr., Esq.
Attorney for Petitioner
:rc
COMMONWEALTH IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
V.
ANTONIO HOUSTON 904-R CRIMINAL 1990
IN RE: POST CONVICTION RELIEF ACT PETITION
BEFORE OLER, J.
OPINION AND ORDER OF COURT
Oler, J.
At issue in the present criminal case is whether petitioner's
petition under the Post Conviction Relief Act' should be granted.
A hearing on the petition was held on August 30 and 31, 1993.
Based upon the evidence presented at the hearing, the petition will
be denied.
STATEMENT OF FACTS
Procedural background. On Wednesday, October 25,Z and
Thursday, October 26, 1989,3 inmates rioted at the Camp Hill State
Correctional Institution in Lower Allen Township, Cumberland
County, Pennsylvania.' Petitioner, an inmate,' was subsequently
charged with twenty-one felonies and three misdemeanors arising out
' Act of May 13, 1982, P.L. 417, as amended, 42 Pa. C.S.
§§9541 et seq. (1993 Supp.).
2 Post Conviction Relief Act Hearing, August 30 and 31, 1993,
N.T. 18 (hereinafter N.T. ).
3 N.T. 27.
N.T. 18; Post Conviction Relief Act Hearing, August 30 and
31, 1993, Commonwealth's Exhibit 1 (hereinafter Commonwealth's or
Defendant's Exhibit ).
5 N.T. 18-19.
11 904-R CRIMINAL 1990
of the riot.6 Nineteen of the felony charges and all of the
misdemeanor charged were bound over for court.' The crimes
allegedly committed by petitioner included aggravated assault,
assault by prisoner, burglary, arson endangering persons, arson
endangering property, riot, robbery and kidnapping.'
On July 23, 1990, petitioner tendered a plea of no contest,
pursuant to a plea arrangement, to one felony of the second degree
(arson endangering property) and six misdemeanors of the second
degree (simple assaults), in full satisfaction of all of the
charges, subject to an agreed-upon sentence of 33 -to -66 months on
the felony, with concurrent six -to -twelve month periods on the
misdemeanors, this sentence to be served consecutive to any
sentence then being served.' The plea was accepted and sentence
6 Commonwealth's Exhibit 1. The docket transcript indicates
that twenty-two felonies were charged, but the complaints filed of
record in the Post Conviction Hearing Act hearing show only twenty-
one. The discrepancy results from the fact that the kidnapping
charge represented by item X on the docket transcript was added at
the preliminary hearing by agreement of counsel. Defendant's
Exhibit 2, at 4-5.
' Two of the felony charges were withdrawn by the
Commonwealth; these are items "T" and "U" on the docket transcript.
See Defendant's Exhibit 2, at 119.
It also appears to the Court that the date of the assault -by -
prisoner offense listed at item "V" on the docket transcript should
have been given as 10/26/89 rather than 10/25/89, and that this
entry represented the alleged assault by prisoner upon corrections
officer Frank Atherton.
' Commonwealth's Exhibit 1.
1.1 ' Defendant's Exhibit 4, at 1-2.
E
11 904-R CRIMINAL 1990
was immediately imposed.10
Petitioner has now filed a petition under the Post Conviction
Relief Act,11 seeking to withdraw the plea.12 It is alleged that his
counsel was ineffective.13 The ineffectiveness is said to have
consisted of (1) failure to adequately investigate and prepare for
trial,1' (2) misrepresentation of the status of what counsel had
done and not done," and (3) acquiescence in a sentence inconsistent
with a plea bargain, and, to the extent that the bargained -for
sentence was impossible, improper advice on the subject.16
Factual background. The following twelve charges against
petitioner, relating to incidents that allegedly occurred on
Wednesday, October 25, 1989, were the subject of a preliminary
hearing on May 17, 1990, and bound over for court: (1) Simple
Assault (second degree misdemeanor) upon the prison barber
instructor, C.L. Miller, by beating him as he sat handcuffed,
10 Defendant's Exhibit 4, at 14-16.
11 The petition was filed pro se on March 25, 1993. Motion
for Post Conviction Collateral Relief. Dale F. Shughart, Jr.,
Esq., was appointed to represent petitioner on March 26, 1993. The
petition has been supplemented by three additional filings, on May
14, 1993, May 20, 1993, and August 30, 1993.
12 N.T. 66.
13 N.T. 7.
14 N.T. 6.
15 N.T. 6-7.
16 N.T. 8.
3
11 904-R CRIMINAL 1990
between 2:30 p.m. and 8:00 p.m.; (2) Riot (third degree felony)
between those hours, by disorderly conduct with others with intent
to kidnap corrections officer Nathaniel Hargrove; (3) Kidnapping
(first degree felony) between those hours, by the taking of officer
Hargrove hostage; (4) Riot (third degree felony) between those
hours, by disorderly conduct with others with intent to commit
aggravated assault, assault by prisoner, kidnapping and unlawful
restraint upon corrections officer Charles Atherton; (5) Kidnapping
(first degree felony) between those hours, by taking officer
Charles Atherton hostage; (6) Unlawful Restraint (first degree
misdemeanor) between those hours, by restraining officer Charles
Atherton; (7) Assault by Prisoner (second degree felony) between
those hours, by joining with others in repeatedly kicking officer
Charles Atherton; (8) Aggravated Assault (second degree felony)
between those hours, by the attack upon officer Charles Atherton;
(9) Recklessly Endangering (second degree misdeameanor) of
corrections officers Bruce Colyer, Ronald Klock, Joseph Keefer, and
Kenneth Lewis, by breaking through the switch box wall of G block,
at 5:30 p.m.; (10) Assault by Prisoner (second degree felony) at
that time upon officer Keefer, by hitting him with a force likely
to produce serious bodily injury; (11) Riot (third degree felony)
at that time by disorderly conduct with others with intent to
commit burglary, assault and recklessly endangering; and (12)
Attempted Burglary (second degree felony) at that time, by breaking
4
904-R CRIMINAL 1990
through the switch box to take hostages.17
In addition, the following ten charges, relating to incidents
allegedly occurring the next day were similarly the subject of the
preliminary hearing and bound over: (1) Assault by Prisoner (second
degree felony) upon corrections officer Frank Atherton, by kicking
him in the legs and buttocks, between 6:30 p.m. and 8:30 p.m., (2)
Robbery (first degree felony) upon corrections officer Steven
Allen, by removing a ring from his finger while other inmates beat
and stole from him, between 7:00 p.m. and 8:00 p.m.; (3) Riot
(third degree felony) between those hours, by disorderly conduct
with others with intent to commit aggravated assault and robbery;
(4) Conspiracy to Commit Robbery (second degree felony) between
those hours, by conspiring to rob officer Allen; (5) Aggravated
Assault (second degree felony) between those hours, upon
corrections officer Ronald Steele, by holding him as others beat
him with their hands, feet and clubs; (6) Aggravated Assault
(second degree felony) between those hours, upon corrections
officer Allen, by beating him with a two-by-four; (7) Assault by
Prisoner (second degree felony) between these hours, upon officer
Steele; (8) Assault by Prisoner (second degree felony) between
these hours, upon officer Allen; (9) Arson Endanqerinq Persons
(first degree felony) by setting a fire that placed police
17 Commonwealth's Exhibits 1, 2; see notes 6-8 supra and
accompanying text.
61
1. 904-R CRIMINAL 1990
officers, corrections officers and inmates at risk, at 7:30 p.m.;
and (10) Arson Endangering Property (second degree felony) at that
time, by setting a fire that placed two modular housing units at
risk."
The preliminary hearing transcript, which comprises 120 pages,
discloses the following witnesses testifying on behalf of the
Commonwealth: prison barber Miller; corrections officers Hargrove,
Charles Atherton, Keefer, Allen and Steele; Pennsylvania State
Trooper James Boyle of the Fire Marshal Division; and six inmates.
The transcript presents a compelling argument that petitioner was
a ringleader in the riot, and is replete with testimony such as
this:
He [petitioner] was kicking Mr. [Frank]
Atherton in his ass and his butt. Tony said
about we should fuck him up or fuck him or
fuck him up right there, so they know we're
not playing. I turned around and got away. I
didn't want to be around for nothing like
that .19
Q Again, what, if anything, did you
see Tony Houston do as the guards came out of
the switchbox?
A He slugged Keefer alongside the
head."
18 Commonwealth's Exhibits 1, 2; see notes 6-8 supra and
accompanying text.
19 Defendant's Exhibit 2, at 115.
20 Defendant's Exhibit 2, at 99.
0
904-R CRIMINAL 1990
[Charles] Atherton was led out. Atherton
was left in the field. He was in the field
where all the guards were kneeling down. They
had this little barricade there. At one
point, a guard was being picked up by inmates.
Atherton was being kicked going down the hill.
Q Houston was there when Atherton was
on his knees by the E Gate light pole?
A Houston was there kicking him
coming down the hill."
[T]wo individuals came in, Mr. Houston
and another guy. The other guy, I don't know
who he was. They proceeded up the trailer,
down the aisle way. They got about halfway
down the aisle way.
There was an inmate there. I don't know
if he said something to them or what, but
Tony, he had a flashlight and he was beating
this inmate down to the ground. Then they
proceeded up to the front. He had a lighter
and was lighting things."
...I hooked up with seven friends of
mine. They said about, you know, Steele is up
[hiding] under the mod. There was a big
crowd.
So I walked over. There was quite of
[sic] few people poking at him with mop
handles and two by fours. I seen Tony. He
had a big long — it looked like the rail to a
step. He was poking up under the trailer.
He's like, get the mother —
21 Defendant's Exhibit 2, at 38.
22 Defendant's Exhibit 2, at 83-84.
7
1• 904-R CRIMINAL 1990
Q If you would please, you need to
say the language because we need to have a
record of it.
A He said, "Get the mother fucker.
Let's kill him." ...23
Q What did you (a hostage] see him
[petitioner] doing?
A He was standing to my left with a
two-by-four drawn back like a ball bat.26
When Hargrove came out of the block, when
he came down the steps, I was standing right
there in his face. The last thing that came
out of his mouth was, "Please don't kill me."
This is Hargrove. This was Officer Hargrove.
Then he was being escorted by the inmates to
where he was seated.
Q Did you see Mr. Houston walking out
of E Block?
A I didn't see Houston on E Block. I
seen Mr. Houston standing by Mr. Hargrove by
the chair."
When I seen Tony Houston, he was carrying
a two-by-four walking around us, circling
around us [guards].
Q Did you have the impression that
you could get up and walk away at that point
in time if you wanted to do so?
23 Defendant's Exhibit 2, at 71.
24 Defendant's Exhibit 2, at 12.
25 Defendant's Exhibit 2, at 36.
0
904-R CRIMINAL 1990
A No.26
He [petitioner] punched him [the prison
barber instructor] once with a good sucker
punch. They call it a sucker punch when a
person isn't looking. He just punched him.
He was the one that said the statement only
get a haircut once a month, so now tell me
once a month and put that cigarette out. Then
he kicked him. But there was other inmates
there doing it, too.27
I seen Tony hit Al [corrections officer
Allen] with the flashlight, kick him. He was
down, you know, laying down. I seen him kick
him. I turned around and got out of
there .....8
Tony went through his back pockets,
popped a ring off his finger......
They [ 25 to 30 inmates] were attempting
to get the officers out of the switchbox.
Q How do you know that?
A Because they were cursing at them.
It was — now I know it was a fire extinguisher
— but it was substance coming out of the
broken window. They were threatening, we
going to kill you when we get you out. Come
.6 Defendant's Exhibit 2, at 45.
27 Defendant's Exhibit 2, at 56.
28 Defendant's Exhibit 2, at 69.
29 Defendant's Exhibit 2, at 70.
9
904-R CRIMINAL 1990
on out. They was calling all the officers by
name.
Q Were you able to identify any of
the inmates that were around that switchbox?
A Yes....[O]ne inmate in particular
wasn't dressed up at all.
Q Who was that?
A That was Mr. Houston.
Q What was Mr. Houston wearing?
Q What did you see him doing?
A He had a gray hooded sweatshirt
on, if I recall, and brown pants.
A Well, I heard him yelling. He
was yelling at Officer Keefer, Officer Klock
and Sergeant Lewis — there was a fourth
officer in there — telling them to come on
out.
Q What did you hear Tony Houston
yelling?
A He was more or less giving orders.
He was yelling towards the inmates, we'll get
them out, we'll get them out."
This was a very serious prison riot in which a substantial
portion of the institution was burned to the ground,31 in which an
officer like Joseph Keefer had to be hospitalized with seizures
following beatings by inmates," and which ended only when state
30 Defendant's Exhibit 2, at 104-05.
31 Defendant's Exhibit 2, at 78.
11 32 Defendant's Exhibit 2, at 95.
10
904-R CRIMINAL 1990
police started shooting.33 The charges against petitioner carried
the possibility of grave consequences.
James R. Jones, Esq., a criminal defense attorney who has
represented hundreds of defendants in the past decade,34 was
appointed on May 11, 1990, by the Honorable George E. Hoffer to
represent defendant.35 By Mr. Jones's calculation, given
petitioner's record which included three robbery convictions,"
petitioner "had maxed out on the sentencing guidelines grid
regarding [a] prior [record score].i37 If convicted of only one
charge of kidnapping or arson endangering persons, petitioner faced
a guideline standard range minimum sentence of ninety to 112
months, according to Mr. Jones.3e
Mr. Jones represented petitioner at the preliminary hearing,"
filed an omnibus pretrial motion for relief on his behalf,"' secured
Court approval for investigative expenses, 41 retained an investiga-
33 Defendant's Exhibit 2, at 61.
34 N.T. 89.
35 Defendant's Exhibits 3, 8a.
36 N.T. 133.
37 N.T. 98.
38 N.T. 98.
39 Defendant's Exhibit 2.
40 Defendant's Exhibit 3.
41 Defendant's Exhibit 3.
11
904-R CRIMINAL 1990
tor,42 spent more than twenty-five hours on the case,43 met with
petitioner on a number of occasions,14 one of which required 300
miles of travel,45 participated with petitioner in a pretrial
conference in which the defense witness list was presented with no
additions suggested by petitioner, 4' and negotiated with the
prosecution.47 Shortly before trial, he succeeded in obtaining an
offer for a plea as indicated, with the sentence to be a
consecutive one of 33 to 66 months.48 Although petitioner
maintained that he had done nothing wrong,49 the decision to plead
nolo contendere was made by him.5o
The plea was tendered on Monday, July 23, 1990, before the
Honorable Edgar B. Bayley and was accepted only after a thorough
colloquy." The colloquy included an explanation of the nature and
42 Defendant's Exhibit 6.
43 Defendant's Exhibit 8a.
44 Defendant's Exhibit 9.
45 Defendant's Exhibit 8a.
46 N. T. 95-96.
47 Defendant's Exhibit 9.
4e N.T. 98; Defendant's Exhibit 4.
49 N.T. 99.
50 N.T. 99, 139.
51 Defendant's Exhibit 4.
12
904-R CRIMINAL 1990
consequences of a nolo contendere plea,52 the nature of the offenses
of simple assault and arson endangering property, 53 the potential
penalties for such offenses,54 the factual bases for the charges to
which pleas were being tendered,55 and an expression of the Court's
willingness to sentence in accordance with the plea bargain.56 In
the latter regard, the Court stated, inter alia,
I understand from your counsel and the
District Attorney that you're going to enter
pleas of nolo contend[ere) to six Simple
Assaults, all reduced charges from either
Aggravated Assault or Assault by Prisoner or
both, each of those being a misdemeanor of the
second degree, carrying a maximum penalty of
two years and/or $5000.00 fine, a nolo
contendere] plea to a count of Arson (Endan-
gering Property), which is a felony in the —
MR. BIRBECK [Assistant District Attor-
ney]: Second degree.
THE COURT: Second degree. This would
carry a maximum penalty of ten years and/or a
$25,000.00 fine. I understand that you will
waive a pre -sentence investigation, and I'll
sentence you today to an agreed -to sentence on
the Arson (Endangering Persons) of not less
than 33 months nor more than —
MR. BIRBECK: Arson (Endangering Prop-
erty).
52 Defendant's Exhibit 4, at 4.
53 Defendant's Exhibit 4, at 8-12.
54 Defendant's Exhibit 4, at 4, 12.
55 Defendant's Exhibit 4, at 8-11.
56 Defendant's Exhibit 4, at 4-6.
13
J
904-R CRIMINAL 1990
THE COURT: Okay. Not less than 33
months nor more than 66 months consecutive to
any sentence you're previously imposed, and
that I'll also enter six, concurrent to these
charges, sentences for the six reduced counts
of Simple Assault that you're pleading nolo
contend[ere] to .... 57
Judge Bayley asked the defendant, "And have you had any
difficulty understanding what I've told you, and do you feel you
have a full understanding of your case?i58 The defendant replied,
"Yes, sir, full understanding. 11" The defendant indicated in
response to one of the Court's questions that he was currently
doing "back time"; he stated that the maximum on that sentence
would be reached in two years.60
Following the colloquy, the Court accepted the pleas and
imposed a sentence on the arson charge of not less than 33 months
nor more than 66 months, specifying that "[t]his sentence is to run
consecutive to any sentence previously imposed."61 Concurrent
sentences of six -to -twelve months were imposed on the simple
assault charges."
It appears that the sentence imposed by Judge Bayley did not
57 Defendant's Exhibit 4, at 4.
58 Defendant's Exhibit 4, at 8.
59 Defendant's Exhibit 4, at 8.
60 Defendant's Exhibit 4, at 3.
61 Defendant's Exhibit 4, at 14-15.
62 Defendant's Exhibit 4, at 15.
14
904-R CRIMINAL 1990
commence immediately following the parole revocation period being
served by petitioner at the time of the plea, because a second
parole revocation intervened.6' This revocation apparently resulted
from the plea to the riot offenses, and related to a sentence from
which petitioner was on parole when the riot and plea took place."
In support of his claim that his counsel was ineffective,
petitioner presented the testimony of three witnesses at the Post
Conviction Relief Act hearing — corrections officers Tab Bickel"
and Randy Wright,"" and himself." He also presented a video tape
of a portion of the riot."
The testimony of officer Bickel was to the effect that during
the riot prisoners were out of their cells without authorization,69
that on the first day of the riot he and officer Wright had
barricaded themselves in a "switch box" area in F Block,70 that
63 See N.T. 8-9.
64 See N.T. 8-9. This was obviously not the same sentence on
which petitioner was serving back time at the time of the riot and
plea. Id.
65 N.T. 18-40.
66 N.T. 40-50.
67 N.T. 50-86.
6e Defendant's Exhibit 5.
69 N.T. 40.
70 N.T. 231 32-33.
15
904-R CRIMINAL 1990
inmates were trying to break in and throwing fireballs,71 that
around 7:00 p.m. petitioner, who did not live on F Block, was at
the door urging them to come out,'Z that petitioner told them they
would not be harmed if they let him in,73 that they decided at that
point that "that was our best bet, ,74 and that "Houston was the
first one in. X75 Officer Bickel was taken prisoner, handcuffed, and
eventually hooded and led to another area of the prison, according
to his testimony.76 He stated that the riot began around 3:00
p.m.,77 that he had no knowledge of petitioner's whereabouts before
7:00 p.m. on that day, nor on the second day of the riot,7B that
petitioner at one point stopped other prisoners from assaulting
him,79 and that petitioner loosened his handcuffs60 and gave him
water.8' Officer Bickel also indicated that he was at the
71
N.T.
34-35.
'Z
N.T.
34.
73
N.T.
34.
74
N.T.
35.
75
N.T.
35.
76
N.T.
22-24.
77
N.T.
20.
78
N.T.
26-27.
79
N.T.
22.
90
N.T.
23.
e1
N.T.
22.
16
904-R CRIMINAL 1990
Courthouse under subpoena on the day scheduled for petitioner's
trial."
The testimony of officer Wright was to the effect that around
6:55 p.m. on the first day of the riot he was in the switch box
area with Officer Bickel,83 that petitioner came to the door and
told them, "[I]t's either you come out here with us or we get you
out of here or they're coming in after you,i84 that petitioner was
holding one of the institution's two-way radios and appeared to be
negotiating with prison officials,85 that petitioner told him he was
going to be handcuffed to another guard, 16 and that a hood was
thrown over his head.87 He said he had a perception that petitioner
was protecting him and Officer Bickel.BB According to Officer
Wright, he saw petitioner for only about half an hour during the
riot89 and only on the first day.9'
82 N.T. 32. This was the same day he entered a plea. See
Defendant's Exhibit 4, at 6.
83 N.T. 42.
84 N.T. 43.
85 N.T. 42-43, 46.
86 N.T. 44.
87 N.T. 44.
88 N.T. 45.
89 N.T. 47.
90 N.T. 47.
17
904-R CRIMINAL 1990
The testimony of petitioner was to the effect that he had
consistently maintained his innocence,91 that he in fact helped the
guards, 92 that he was, for some reason, shot at by authorities while
he was merely helping a guard who was unconscious,93 that his
attorney met with him on only a few occasions, 94 for short periods,"
that witnesses whom petitioner proposed, such as officers Bickel
and Wright, and an inmate named Geri Coles, were not investigated,"
and that he told his attorney that video tapes of the riot would
support his innocence.97 He also testified that, under the plea
bargain he agreed to, the sentence imposed by Judge Bayley was to
commence on September 7, 1992, and that instead a 40 -month period
of back time on a parole revocation for a 1986 robbery conviction
has intervened.98
Petitioner acknowledged that the 25 -minute video tape in
question did not show all the events of the two-day riot,99 that it
91 N.T. 53.
92 N.T. 53.
93 N.T. 57-58.
94 N.T. 51, 55.
95 N.T. 55.
96 N.T. 51-52, 56-58.
97 N.T. 57-58.
98 N.T. 59-62; see N.T. 143.
99 N.T. 70.
904-R CRIMINAL 1990
skipped around,100 and that his image does appear on the tape."'
With respect to inmate Geri Coles, this exchange occurred on cross-
examination:
Q What was Mr. Coles going to say in
your behalf?
A That he lied on me, that he said
that I kicked the officer, and I didn't kick
an officer, that he lied."'
He testified that his counsel was less than enthusiastic about this
testimony.10'
Petitioner also acknowledged that he was aware that new
convictions can result in parole revocations.1" However, he said
he thought this rule did not apply to persons in jail."'
The video tape106 is, at best, inconclusive on the issue of
petitioner's guilt. It does, however, show him in the presence of
rioting inmates."'
100 N.T. 70.
101 N.T. 65.
102 N.T. 67.
103 N.T. 56. Mr. Coles was not a witness whom the
Commonwealth intended to call. Defendant's Exhibit 3. Nor had he
testified against petitioner at the preliminary hearing.
Defendant's Exhibit 2.
104 N.T. 76.
105 N.T. 76.
106 Defendant's Exhibit 5.
107 Defendant's Exhibit 5; see, e.g., N.T. 81.
19
904-R CRIMINAL 1990
The Commonwealth presented the testimony of two witnesses at
the Post Conviction Relief Act hearing — petitioner's former
counsel, James K. Jones, Esq. ,1' and his private investigator,
Jeffrey deCoen.109 Mr. Jones testified that he had presented a
witness list at the pre-trial conference of those persons
petitioner wanted called,"" that although Geri Coles was among
those listed"' he warned petitioner that discovery materials
received from the prosecution included a statement from Coles
"actually implicating him, ,112 that he accepted at face value
petitioner's representations as to what his witnesses would say,"'
and that he was prepared for trial on that basis."' He agreed that
testimony of officers Bickel and Wright had a potential for benefit
to petitioner,"' but pointed out that a half-hour time span only
was involved in their testimony, and that a jury might not have
found petitioner's actions during that period entirely ingenuous.""
108 N.T. 88-153.
109 N.T. 155-78.
110 N.T. 93.
111 N.T. 95; see Defendant's Exhibit 3.
112 N.T. 93.
113 N.T. 127, 137-38.
114 N.T. 99, 132.
115 N.T. 138.
116 N.T. 138-39.
20
904-R CRIMINAL 1990
He denied any implication that he advised petitioner that a plea
could not result in a parole revocation. 117 He stated that "the
final decision as far as whether we went to trial was Mr.
Houston's, x,119 and indicated that he felt the sentence bargained for
was what was received.119 Mr. Jones was, in the Court's view, a
wholly credible witness with respect to the facts he recounted.
Mr. deCoen's testimony was to the effect, inter alia, that he
had discussed petitioner's case with Mr. Jones120 and that he had
subpoenaed officers Bickel and Wright."' He also stated that he
had acquired information that could have been used to impeach
several witnesses against petitioner."'
STATEMENT OF LAW
"It is by now axiomatic that a defendant in a criminal case is
entitled to effective representation at trial." Commonwealth v.
Collins, 519 Pa. 58, 63, 545 A.2d 882, 885 (1988). With respect to
a claim of ineffective assistance, however, "Pennsylvania courts
117 N.T. 134-36. Mr. Jones observed, probably accurately in
view of petitioner's record, that "[h]e was more familiar with the
parole board as far as he was concerned than I was." N.T. 134.
118 N.T. 139.
119 N.T. 142-43.
120 N.T. 175.
121 N.T. 161, 169, 174. It appears that officer Wright was a
doubtful witness because of a psychological condition at the time.
N.T. 161.
122 N.T. 166-68.
21
904-R CRIMINAL 1990
presume that an accused's counsel is effective and place the burden
of proving ineffectiveness on the convicted defendant." Packel &
Poulin, Pennsylvania Evidence §307, at 116 (1987). In the context
of a proceeding under the Post Conviction Relief Act,123 Judge Hess
of this Court has noted that the burden is a "heavy" one.
Commonwealth v. Borrero, 42 Cumberland L.J. 419, 420 (1993).
A general rule for the analysis of a claim of ineffectiveness
of counsel has been given by the Pennsylvania Supreme Court as
follows:
There are three elements to a valid claim
of ineffective assistance. We inquire first
whether the underlying claim is of arguable
merit; that is, whether the disputed action or
omission by counsel was of questionable legal
soundness. If so, we ask whether counsel had
any reasonable basis for the questionable
action or omission .... If he did, our
inquiry ends. If not, the [defendant] will be
granted relief if he also demonstrates that
counsel's improper course of conduct worked to
his prejudice ...."
Commonwealth v. Davis, 518 Pa. 77, 83, 541 A.2d 315, 318 (1988).
However, under the Post Conviction Relief Act, a person
seeking relief on the basis of ineffective assistance of counsel
must prove, by a preponderance of the evidence, that the
"conviction or sentence resulted from ... [i]neffective assistance
... which, in the circumstances of the particular case, so
undermined the truth -determining process that no reliable
123 Act of May 13, 1982, P.L. 417, as amended, 42 Pa. C.S.
§§9541 et seq. (1993 Supp.).
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904-R CRIMINAL 1990
adjudication of guilt or innocence could have taken place. i124
Thus, the Pennsylvania Superior Court has stated that in this
context "it is not enough for [a defendant] to show that he
suffered some prejudice as a result of counsel's action or
inaction, but rather that counsel's action or inaction so affected
the trial itself ("the truth -determining process") that the result
of the trial is inherently unreliable." Commonwealth v. Weinder,
395 Pa. Super. 608, 627, 577 A.2d 1364, 1374 (1990).
In addition, an attempt by a person to withdraw a plea
following sentence is subject to special burdens. Allegations of
ineffectiveness of counsel in connection with a guilty plea "will
provide a basis of relief only if ineffectiveness caused an
involuntary or unknowing plea." Commonwealth v. West, 336 Pa.
Super. 180, 185-86, 485 A.2d 490, 493 (1984). Where withdrawal of
a guilty plea is the relief requested under the Post Conviction
Relief Act, it will be permitted only "upon a showing of severe
prejudice to the [petitioner] in the form of manifest injustice'
Commonwealth v. Edwards, 417 Pa. Super. 555, 559, 612 A.2d
1077, 1079 (1992), allocatur denied, Pa. , 625 A.2d 1191
(1993). These principles are applicable to pleas of nolo
contendere. 125
Several holdings of Pennsylvania appellate courts are
lea Act of May 13, 1982, P.L. 417, §2, as amended, 42 Pa. C.S.
§9543(a)(2)(i) (1993 Supp.).
les "In its effect upon a criminal case, a plea of nolo
contendere is the equivalent to a guilty plea, and should be
treated the same as a guilty plea ... in terms of ... permitting
withdrawal of the plea." 2 Wasserbly, Pennsylvania Criminal
Practice 925.11 (1993). Thus, the "manifest injustice" standard
has been applied to a post -sentence attempt to withdraw a plea of
nolo contendere. Commonwealth v. Jackson, 390 Pa. Super. 639, 569
A.2d 964, allocatur refused, 527 Pa. 623, 592 A.2d 43 (1990).
23
904-R CRIMINAL 1990
instructive on the issues of ineffective assistance of counsel in
general and withdrawals of pleas in particular. With respect to
the former, it has been said that "mere shortness of time in
conference does not, without more, establish ineffective assistance
of counsel." Commonwealth v. Ford, 491 Pa. 586, 591, 421 A.2d
1040, 1042 (1980); see Commonwealth v. Hill, 450 Pa. 477, 481, 301
A.2d 5870, 590 (1973) (mere shortness of time in preparation of
defense). "Neither is it per se ineffectiveness for counsel to
fail to interview ... potential defense witnesses." Commonwealth
v. Ford, 491 Pa. 586, 591, 421 A.2d 1040 (1980).126 Similarly,
"failure to conduct a more thorough investigation ... does not
constitute per se ineffectiveness." Commonwealth v. Murray, 338
Pa. Super. 580, 586, 488 A.2d 45, 48 (1985).
On the other hand, it has been said that "[w]hen the
Commonwealth has an excellent case but offers an accused a highly
favorable plea bargain, counsel is ineffective if he doesn't advise
his client to accept the bargain." 1 Wasserbly, Pennsylvania
Criminal Practice §4.21 (1993); see Commonwealth v. Napper, 254
Pa. Super. 54, 385 A.2d 521 (1978).
With respect to withdrawals of pleas, a failure of a court to
impose a bargained -for sentence has been said to rise to the level
of manifest injustice. Commonwealth v. Jackson, 390 Pa. Super.
639, 643, 569 A.2d 964, 966, allocatur denied, 527 Pa. 623, 592
A.2d 43 (1990). On the other hand, "disappointed expectations
126 In addition, the absence of such a person at an
evidentiary hearing on counsel's ineffectiveness is a factor
weighing against a defendant in determining whether defendant's
burden of proof has been met. See Commonwealth v. Shannon, 530 Pa.
279, 608 A.2d 1020 (1992).
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PO4-R CRIMINAL 1990
alone do not vitiate guilty pleasi127 or nolo contendere pleas."'
In determining whether a manifest injustice which would warrant the
withdrawal of a plea has been shown, a "court must look to the
totality of the circumstances attendant on the entry of the plea."
Commonwealth v. English, 408 Pa. Super. 457, 460, 597 A.2d 122, 124
(1991).
In Commonwealth v. Boatwright, 404 Pa. Super. 75, 590 A.2d 15
(1991), the Pennsylvania Superior Court upheld the refusal of a
lower court to permit withdrawal, prior to sentencing, of a nolo
contendere plea, notwithstanding that the plea colloquy disclosed
defendant's anticipation of the court's consideration of an
alternative to criminal punishment provided for in the drug act,
and that such alternative was subsequently determined to be
statutorily barred.
Similarly, in Commonwealth v. West, 336 Pa. Super. 180, 485
A.2d 490 (1984), the Superior Court upheld the refusal of a lower
court to permit withdrawal, after sentence, of a guilty plea
involving an agreed-upon sentence of seven -to -twenty years,
notwithstanding defendant's claim that he was unaware of the
possibility of a consecutive sentence in the event of a revocation
of probation and his attempt during the plea colloquy to condition
the plea upon the non-occurrence of such a result. In West, the
Court stated that the sentence of seven -to -twenty years imposed
below was "the exact sentence for which [the defendant] bargained.
127 Commonwealth v. Mitchell, Pa. Super. 483
A.2d 1389 (1984), correcting 319 Pa. Super. 170, 465 A.2d 1284.
128 Cf. Commonwealth v. Boatwright, 404 Pa. Super. 75, 590
A.2d 15 (1991) (denial of presentence motion to withdraw nolo
contendere plea based upon discovery that hoped-for probation under
35 P.S. 5780-118[f] would not be legal, upheld).
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904-R CRIMINAL 1990
That sentence should not be disturbed." Id. at 188, 485 A.2d at
494.
Finally, on the separate subject of concurrent or consecutive
time in connection with parole revocations, the rule in Pennsylva-
nia has been stated as follows:
When a defendant is paroled and then
convicted and sentenced to imprisonment for a
crime committed while on parole, the new
sentence and the remainder of the old sentence
(or "back time") must be consecutive; the
sentencing judge may not make them concurrent.
2 Wasserbly, Pennsylvania Criminal Practice §31.23 (1993).
APPLICATION OF LAW TO FACTS
In the present case, the heavy burden undertaken by petitioner
of demonstrating entitlement to relief in the form of withdrawal of
his plea on the basis of ineffective assistance of counsel has not
been met. The case against petitioner was a strong one, with
potentially grave consequences. No misrepresentations on the part
of counsel have been shown, no incorrect advice has been
demonstrated, and no deficiency in counsel's investigation or trial
preparation has been proven that would warrant a finding of
prejudice to petitioner, let alone a determination that the result
obtained was the result of incompetency, or was inherently
unreliable, or was a manifest injustice. Had the plea not been
entered, an argument could be made that Mr. Jones should have
persisted more strongly in its favor.
Although the parole revocation which intervened to postpone
commencement of petitioner's service of the sentence agreed upon
was undoubtedly a disappointment to petitioner, particularly in its
length, the Court had no power to make its sentence concurrent with
a state parole revocation, nothing in the plea arrangement promised
26
,904-R CRIMINAL 1990
petitioner otherwise, and petitioner knew what his record was and
had been revoked before. Under the totality of circumstances, and
without suggesting that the number of years in prison facing
petitioner is a matter of no concern to the Court, the Court can
not help but note the strong possibility that petitioner would be
far more disappointed with the result of any trial than the plea,
and, in any event, does not believe that justification has been
shown to withdraw the plea.
ORDER OF COURT
AND NOW, this -Llw day of December, 1993, upon consideration
of petitioner's petition under the Post Conviction Relief Act,
following a hearing, and for the reasons stated in the accompanying
Opinion, the petition is DENIED.
Alison Taylor, Esq.
Assistant District Attorney
Dale F. Shughart, Jr., Esq.
Attorney for Petitioner
:rc
BY THE COURT,
S/ J. Wesley Oler, Jr
J. Wesley Oler, Jr., J.
27