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HomeMy WebLinkAboutCP-21-CR-2129-2004 COMMONWEAL TH IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. ROBERTL.ANDERSON CP-21-CR-2129-2004 IN RE: PETITION FOR POST-CONVICTION RELIEF OPINION AND ORDER OF COURT Bayley, J., September 18, 2006:-- Petitioner, Robert Lee Anderson, was charged with counts of (1) consensual involuntary deviate sexual intercourse (oral sex), a felony in the first degree,1 (2) consensual statutory sexual assault (sexual intercourse), a felony in the second degree,2 (3) consensual indecent assault (indecent contact), a misdemeanor of the second degree,3 and (4) corruption of minors by (the alleged sexual activity), a misdemeanor of the first degree.4 At the time of the alleged offenses on June 15 and July 31, 2004, the female victim was fifteen years old and petitioner was 27 years old. The maximum penalty for involuntary deviate sexual intercourse is twenty years, 18 Pa C. S. Section 11 03(i), with a mandatory minimum sentence of five years because the victim was 15 and petitioner was four or more years older. 42 PaC.S. 9718(a)(1). 118 PaC.S. S 3123(a)(7). 218 PaC.S. S 3122.1. 318 PaC.S. S 3126(a)(8). 418 PaC.S. S 6301(a)(1). CP-21-CR-2129-2004 The maximum sentence for statutory sexual assault, based on the same age difference, is ten years, 18 Pa. C. S. Section 1103(2), and the maximum sentence for indecent assault, based on the same age difference, is two years, 18 Pa. C. S. Section 1104(2). The maximum sentence for the alleged sexual activity between a defendant, of eighteen years of age and upwards, who corrupts the morals of a minor who is less than eighteen years of age, is five years. 18 Pa. C. S. Section 11 04( 1 ). On December 3, 2004, petitioner entered a plea of guilty to the count of statutory sexual assault, in full satisfaction of all of the charges, in exchange for a set sentence that was imposed that day, of imprisonment in the state correctional institution for not less than one and a half years or more than three years, to date from August 23, 2004. There was no post-sentence motion or direct appeal. Petitioner filed a timely petition for post-conviction relief which was denied on August 5, 2005. He filed a direct appeal to the Superior Court of Pennsylvania. On May 31, 2006, the Superior Court, concluding that the record was inadequate to resolve an ineffective assistance of counsel claim, remanded "for an evidentiary hearing on the counsel's representation of appellant vis-a-vis the defense of mistake of age." A hearing was conducted on September 7,2006. The Crimes Code, at 18 Pa.C.S. Section 3102, provides: Except as otherwise provided, whenever in this chapter the criminality of conduct depends on a child being below the age of 14 years, it is no defense that the defendant did not know the age of the child or reasonably believed the child to be the age of 14 years or older. When criminality depends on the child's being below a critical age older then 14 -2- CP-21-CR-2129-2004 years, it is a defense for the defendant to prove by a preponderance of the evidence that he or she reasonably believed the child to be above the critical age. (Emphasis added.) Petitioner asserts that his trial counsel was ineffective in failing to advise him of a defense concerning his "mistaken" belief that the victim was older than the critical age at the time of the incident.5 In Commonwealth v. Rathfon, 899 A.2d 365 (Pa Super. 2006), the Superior Court of Pennsylvania stated: "A criminal defendant has the right to effective counsel during a plea process as well as during trial. A defendant is permitted to withdraw his guilty plea under the PCRA if ineffective assistance of counsel caused the defendant to enter an involuntary plea of guilty." Commonwealth v. Kersteter, 877 A.2d 466, 468 (PaSuper.2005). We conduct our review of such a claim in accordance with the three-pronged ineffectiveness test under section 9543(a)(2)(ii) of the PCRA, 42 PaC.S.A. S 9543(a)(2)(ii). See [Commonwealth v.] Lynch[, 820 A.2d 728, 732 (PaSuper.2003)]. "The voluntariness of the plea depends on whether counsel's advice was within the range of competence demanded of attorneys in criminal cases." (Quoting Commonwealth v. Hickman, 2002 PA Super 152,799 A.2d 136,141 (PaSuper.2002)). In order for Appellant to prevail on a claim of ineffective assistance of counsel, he must show, by a preponderance of the evidence, 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 5 At the time of the plea to statutory sexual assault, the court told petitioner the elements of the offense: "If you had sexual activity at age 27 with a 15-year-old child, and on this particular charge, statutory sexual assault, that means sexual intercourse, then that does constitute a felony in the second degree. It carries a maximum penalty of ten years imprisonment and a fine. The reason it is illegal, even though the sexual conduct was consensual, is that you were 27 and she was 15. That is the statutory sexual assault under the law. So if you had intercourse with this girl at those ages, you would be guilty of that offense." We did not set forth possible defenses, affirmative or otherwise. -3- CP-21-CR-2129-2004 innocence could have taken place. Commonwealth v. Kimball, 555 Pa. 299, 724 A.2d 326, 333 (Pa. 1999). Appellant must demonstrate: (1) the underlying claim is of arguable merit; (2) that counsel had no reasonable strategic basis for his or her action or inaction; and (3) but for the errors and omissions of counsel, there is a reasonable probability that the outcome of the proceedings would have been different. Id. The petitioner bears the burden of proving all three prongs of the test. Commonwealth v. Meadows, 567 Pa. 344, 787 A.2d 312, 319-20 (2001). Commonwealth v. Johnson, 868 A.2d 1278, 1281 (Pa.Super.2005). Kersteter, 877 A.2d at 469-69. Moreover, trial counsel is presumed to be effective. Commonwealth v. Carter, 540 Pa. 135, 656 A.2d 463, 465 (1995). In both Kersteter and Hickman, which the PCRA court relied upon to grant relief in the instant case, the defendants pled guilty in reliance on plea counsels' erroneous advice that they would be eligible for boot camp when, in fact, the length of their sentences statutorily precluded the possibility of their participation in boot camp. Both defendants sought PCRA relief, asking to withdraw their pleas based on ineffectiveness assistance of counsel. In both cases, we conclude that counsels' erroneous advice fell below the standard of competence required by the Sixth Amendment, that there was no reasonable basis designed to advance the defendants' interests, and that the erroneous advice prejudiced the defendants because it enticed them to plead guilty when they would not have otherwise done so. See Kersteter, 877 A.2d at 467 (discussing analogous Hickman case). With regard to prejudice, in Hickman, we noted that "[t]o succeed in showing prejudice, the defendant must show that it is reasonably probable that, but for counsel's errors, he would not have pleaded guilty and would have gone to trial. The 'reasonable probability' test is not a stringent one." Hickman, 799 A.2d 141 (citations omitted; emphasis added). The Court in Hickman derived this standard from Nix v. Whiteside, 475 U.S. 157, 175, 106 S.Ct. 988, 89 L.Ed.2d 123 (1986), which held that "[a] reasonable probability is a probability sufficient to undermine confidence in the outcome." The Hickman Court also relied upon Hill v. Lockhart, 474 U.S. 52, 106 S. Ct. 366, 88 L. Ed.2d 203 (1985), wherein the United States Supreme Court stated: [I]n order to satisfy the "prejudice" requirement, the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty -4- CP-21-CR-2129-2004 and would have insisted on going to trial. In many guilty plea cases, the "prejudice" inquiry will closely resemble the inquiry engaged in by courts reviewing ineffective- assistance challenges to convictions obtained through a trial. For example, where the alleged error of counsel is a failure to investigate or discover potentially exculpatory evidence, the determination whether the error "prejudiced" the defendant by causing him to plead guilty rather than go to trial will depend on the likelihood that discovery of the evidence would have led counsel to change his recommendation as to the plea. This assessment, in turn, will depend in large part on a prediction whether the evidence likely would have changed the outcome of a trial. Similarly, where the alleged error of counsel is a failure to advise the defendant of a potential affirmative defense to the crime charged, the resolution of the "prejudice" inquiry will depend largely on whether the affirmative defense likely would have succeeded at trial. Hill, 474 U.S. at 59,106 S.Ct. 366 (footnote omitted). In Hickman we found prejudice where the defendant established that it was reasonably probable that he would not have pled guilty had he known that he was really not eligible for boot camp. We were persuaded by two factors: first, that the PCRA court did not doubt the defendant's or plea counsel's credibility; and, second, that had he gone to trial, he would have only been risking one additional year of incarceration on his minimum sentence. Id. Accordingly, counsel's constitutionally deficient advice caused the defendant's plea to be involuntary and unknowing. Id. In Rathfon, following a post-conviction hearing in which the petitioner sought to withdraw a plea of guilty to corruption of minors because he did not receive a sentence to be served in a county prison, the trial court granted relief. The Superior Court of Pennsylvania affirmed, stating: Arguably, we could conclude that, even if Rathfon knew that the entire sentence would be served in a state prison, he still would have pled guilty because of the other benefits of his bargain, i.e., the indecent assault charge was nol prossed, his prior record score was decreased from 5 to 4, and he risked a maximum of five years' incarceration had he gone to trial whereas the recommended maximum in his plea agreement was 1 % -5- CP-21-CR-2129-2004 years. However, we cannot ignore the fact that the record reveals that Rathfon bargained for a county sentence, that the court accepted the plea and sentenced Rathfon under the continuing misapprehension that the sentence would be served in the county jail, and that plea counsel was apparently not aware that the Sentencing Code and DOC policy would result in aggregation of the sentences, which would preclude the possibility of Rathfon serving the sentence in the county jail. Additionally, it is within the province of the PCRA court to make credibility determinations, and it apparently believed Rathfon when he testified at the PCRA hearing that he would not have pled guilty had he known the sentence would be served in state prison. The PCRA court accepted Rathfon's reasons for preferring county jail over state prison and concluded that Rathfon did not get what he had bargained for, given that the written plea agreement and associate proceedings unequivocally indicated that his sentence was to be a county sentence. Since the reasonable probability test is not stringent and the record supports the PCRA court's conclusions, we must affirm. (Emphasis added.) At the post-conviction hearing, petitioner in the present case testified that defense counsel asked him if the victim told him her age. He said "No." Petitioner testified that counsel never explained to him a defense as to mistake of age. He told him there were no real defenses to the charges. When he pled guilty, he did not know of the defense of mistake of age. Petitioner testified that the victim gave him an identification which indicated she was eighteen, and somebody else also told him that she was eighteen. He told his attorney that he did not engage in oral sex with the victim. He wants to withdraw his plea of guilty and go to trial, knowing that if he is convicted of involuntary deviate sexual intercourse, there is a mandatory minimum sentence of five years. Trial counsel testified that petitioner told him that the victim showed him an ID -6- CP-21-CR-2129-2004 indicating she was eighteen years old. When asked if he talked to petitioner about the victim's age and about the defense of mistake of age, he answered, "I think we did." There is a note in his file that states, "I explained elements and lack of knowledge of age as defense." Counsel testified that he advised petitioner to accept the plea because, notwithstanding the mandatory minimum sentence on the count of involuntary deviate sexual intercourse, "We were probably looking at a conviction at least on the corruption charge," for which the defense of mistake of age did not apply.6 When again asked if he was, "sure you talked to him about mistake of age at some point," counsel answered: I am not a hundred percent sure, but I don't know why we would have talked so much about the driver's license if we wouldn't have been talking about the mistake of age and the possibility of being sixteen. Counsel answered the following question: Q Can you tell me whether you had any recollection of utilizing the words of the statute which says that the defense would have been for him to prove by a preponderance of the evidence that he reasonably believed the child to be above the critical age? A I can't sit here and tell you that I quoted that statute. But I am fairly certain that the question of reasonableness of the belief came up or at least it was mentioned. Trial counsel is a longtime experienced public defender. That he cannot specifically remember the words he used in explaining an affirmative defense of mistake of age to petitioner over a year and three quarters since the plea was entered, 6 The affirmative defense of mistake of age set forth in Section 3102 of the Crimes Code applies only to offenses set forth in Chapter 31. The offense of corruption of -7- CP-21-CR-2129-2004 is hardly surprising. Notwithstanding, his notation in petitioner's file is noteworthy: "I explained elements and lack of knowledge of age as defense." (Emphasis added.) We find that counsel made petitioner aware of the defense of mistake of age. Therefore, there was no ineffective assistance of counsel that caused petitioner to enter an involuntary plea of guilty. Furthermore, there was certainly a reasonable basis for taking the plea to a set sentence that, (1) eliminated the possible mandatory five year sentence on the count of involuntary deviate sexual intercourse where the significant issue of whether there had been oral sex would have rested upon the credibility of the witnesses, and (2) disposed of the count of corruption of minors in which mistake of age was not an affirmative defense. We could hardly conclude that the affirmative defense of mistake of age would have likely succeeded at trial on the Chapter 31 sexual offenses. For the foregoing reasons, the following order is entered. ORDER OF COURT AND NOW, this day of September, 2006, the petition of Robert L. Anderson for post-conviction relief, IS DENIED. By the Court, Edgar B. Bayley, J. Michelle Sibert, Esquire minors in Section 6301 of the Crimes Code is in Chapter 63. -8- CP-21-CR-2129-2004 For the Commonwealth Susan K. Pickford, Esquire For Petitioner :sal -9- COMMONWEAL TH IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. ROBERTL.ANDERSON CP-21-CR-2129-2004 IN RE: PETITION FOR POST-CONVICTION RELIEF ORDER OF COURT AND NOW, this day of September, 2006, the petition of Robert L. Anderson for post-conviction relief, IS DENIED. By the Court, Edgar B. Bayley, J. Michelle Sibert, Esquire For the Commonwealth Susan K. Pickford, Esquire For Petitioner :sal