HomeMy WebLinkAboutCP-21-CR-0002500-2013
COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
:
v. : NO. CP-21-CR-2500-2013
:
:
RICHARD LLOYD KENNER, JR. : AFFIANT: DET. KEITH SEIBERT
ORDER OF COURT
AND NOW, this day of October 2015, upon consideration of Defendant’s
Motion for Post Conviction Collateral Relief, and after a hearing, Defendant’s Motion is
DENIED.
BY THE COURT,
Christylee L. Peck, J.
Matthew P. Smith, Esquire
Office of the District Attorney
Richard L. Kenner, Jr.
Defendant, pro se
COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
:
v. : NO. CP-21-CR-2500-2013
:
:
RICHARD LLOYD KENNER, JR. : AFFIANT: DET. KEITH SEIBERT
IN RE: DEFENDANT’S MOTION FOR POST-CONVICTION COLLATERAL
RELIEF
OPINION AND ORDER
On March 10, 2014, Defendant pled guilty at Count 1, Possession with Intent to
Deliver a Schedule I Controlled Substance, Heroin, an ungraded felony, in full
1
satisfaction of all charges at this docket. On the same date, Defendant was sentenced,
pursuant to an agreement between the Commonwealth and Defendant, to undergo
imprisonment in a state correctional facility for not less than 2 and a half years nor more
2
than 7 years and to pay the costs of prosecution and a fine of $200.00. The sentence at
3
this docket was also entered in full satisfaction of the charges at CP-21-CR-2500-2013.
4
On March 13, 2015, Defendant filed a Motion for Post Conviction Collateral Relief. A
hearing was held on Defendant’s motion on June 29, 2015, and we took the matter under
advisement. For the following reasons, Defendant’s motion is denied.
Findings of Fact
In the present matter, Defendant was charged with Unlawful Delivery,
Manufacture, Possession with Intent to Deliver a Schedule I Controlled Substance –
Heroin, Criminal Conspiracy to Unlawful Delivery, Manufacture, Possession with Intent
to Deliver a Schedule I Controlled Substance – Heroin, and Criminal Use of a
1
Order of Court, In Re: Guilty Plea & Sentencing (March 10, 2014).
2
Id.
3
Id.
4
Motion for Post Conviction Collateral Relief (March 13, 2015).
2
5
Communication Facility. On November 14, 2013, the Commonwealth filed two notices
6
of mandatory sentences, one pursuant to 42 Pa.C.S. § 9712.1 (providing for a mandatory
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minimum five year jail sentence), and one pursuant to 18 Pa.C.S. § 7508(a)(7)(i)
(regarding weight of heroin and providing for a mandatory minimum two year jail
8
sentence for a first offense). The Commonwealth also filed a Notice of Trial Joinder,
seeking to join Defendant’s case with those of Stephanie Statler, docketed at CP-21-CR-
2508-2013, Alyssa Statler, docketed at CP-21-CR-2739-2013, and Gary Statler, docketed
9
at CP-21-CR-2740-2013.
Michael Halkias, Esquire, was appointed to represent Defendant after he had been
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formally arraigned but prior to his first pretrial conference. On December 4, 2013,
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Defendant wrote a letter requesting a number of items from Attorney Halkias. Two days
later, Attorney Halkias responded that no request for the items requested in Defendant’s
letter had been made as a review of his records revealed there was no previous request on
5
Information, CP-21-CR-2500-2013, filed November 14, 2013.
6
The Commonwealth’s notice cites section 9712 of the Judicial Code, not 9712.1. Section 9712,
however, applies to individuals convicted of a crime of violence committed while in possession of a
firearm. As Defendant was not charged with a crime of violence, section 9712 would not have been
applicable. Based upon the record before us, it appears that all parties proceeded in this matter under the
assumption that the Commonwealth intended to seek the mandatory minimum sentence found at section
9712.1 (Sentences for certain drug offenses committed with firearms.). We find the Commonwealth’s
error immaterial to the resolution of Defendant’s Motion for Post Conviction Collateral Relief.
7
The Commonwealth’s notice cites subparagraph (a)(7)(ii), however, that subsection applies to weights
between 5 and 50 grams and provides for a mandatory minimum of three years. As the language of the
notice references weights between 1 and 5 grams and a mandatory minimum of two years, we have
presumed the Commonwealth’s citing to (a)(7)(ii), rather than (a)(7)(i), was in error.
8
Commonwealth’s Amended Notice of Mandatory Sentencing, filed November 14, 2013; Notice of
Mandatory Sentence, filed November 14, 2013.
9
Notice of Trial Joinder, filed December 18, 2013.
10
Acknowledgment of Arraignment and Public Defender Appointment Pursuant to Cumberland County
Local Rule 303-2, filed November 14, 2013.
11
Transcript of Proceedings, In Re: Motion for Post-Conviction Collateral Relief, November 17, 2014
(Peck, J.) (hereinafter “N.T. at __”) at 12; Petitioner’s Ex. 1.
3
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file. On February 4, 2014, Attorney Halkias filed a Motion for Reduction of Bail on
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Defendant’s behalf.
At the hearing on the Defendant’s Motion for Reduction of Bail, First Assistant
District Attorney Jaime Keating, Esquire, offered Defendant a plea of four to eight
14
years. At the time, Defendant had Pennsylvania and New Jersey state detainers and
15
pending charges in New York. Defendant informed Attorney Halkias that he was
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interested in a plea. Attorney Halkias then negotiated with District Attorney Keating,
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who reduced the plea to two and half to seven years. Defendant accepted the offer.
Attorney Halkias, at the hearing on the motion sub judice, testified that he had a
few conversations with Defendant discussing potential suppression and chain of
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custody. Regarding chain of custody, Attorney Halkias believed it “was something to
look into but perhaps wait until later, something to bring up at trial. Perhaps the D.A. that
was going to handle the case wouldn’t be as prepared if I didn’t search or raise those kind
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of issues.” He also testified that his typical practice when discussing a plea bargain’s
effect on parole with clients is to inform them that:
You understand that you’re going to get your street time
taken from you … you are going to get a hit. You are going to
have a revocation on that, and you are going to get hit with
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whatever back time you need to do.
12
Petitioner’s Ex. 1.
13
Motion for Reduction of Bail, filed February 4, 2014.
14
N.T. at 8, 25, 30.
15
N.T. at 14, 22, 24.
16
N.T. at 19-20.
17
N.T. at 8, 30.
18
N.T. at 20.
19
N.T. at 20-21.
20
N.T. at 21.
21
N.T. at 23.
4
Despite his usual procedure, Attorney Halkias had no specific recollection of informing
22
Defendant of his plea’s potential effect on his street time. During plea negotiations,
however, Attorney Halkias was aware of Defendant’s Pennsylvania and New Jersey
23
detainers and pending New York charges. District Attorney Keating recalled that “Mr.
Halkias came to me to talk about the fact that Mr. Kenner would most likely get a parole
24
hit.” Nevertheless, District Attorney Keating’s practice is not to include parole hits
25
within any particular plea because of uncertainty concerning the Parole Board’s actions.
Defendant testified that at the time he entered his plea he was unaware that his
street time while out on parole on an unrelated matter would be taken away, forcing him
to serve the remainder of his previous sentence before beginning the sentence which he
26
received in this case. Next, Defendant claimed that he presented Attorney Halkias with
an alibi and requested he retrieve a video recording that placed Defendant elsewhere
27
during the initial heroin purchase and transfer. Defendant further averred that he asked
Attorney Halkias, who failed, to acquire evidence logs and the recorded phone
conversations between himself and the confidential informant that Defendant alleges
28
would have bolstered his alibi and attacked the heroin’s chain of custody. Defendant
also challenged counsel as ineffective for failing to attack the firearm mandatory brought
29
by the Commonwealth. Finally, regarding his acceptance of the Commonwealth’s offer
of a two and a half to seven year sentence, Defendant testified that he agreed to the plea
as a result of his lack of knowledge of the guilty plea’s effect on his parole and the
30
perceived absence of evidence with which to defend himself at trial.
22
Id.
23
N.T. at 22.
24
N.T. at 31.
25
Id.
26
N.T. at 4.
27
N.T. at 7.
28
N.T. at 7-8.
29
N.T. at 11-12.
30
N.T. at 8, 9-10.
5
Discussion
Defendant seeks relief based upon a claim of ineffective assistance of counsel at
the time of his 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 the
defendant to enter an involuntary or unknowing plea.” Commonwealth v. Wah, 42 A.3d
335, 338 (Pa. Super. 2012)(citations omitted). To prevail on a claim of ineffective
assistance of counsel, Defendant must satisfy a three-factor test:
(1) the underlying claim has arguable merit; (2) no reasonable
basis existed for counsel’s actions or failure to act; and (3)
\[Defendant\] suffered prejudice as a result of counsel’s error
such that there is a reasonable probability that the result of the
proceeding would have been different absent such error.
Commonwealth v. Barndt, 74 A.3d 185, 192 (Pa. Super. 2013). In order to establish
prejudice, “the defendant must show that there is a reasonable probability that, but for
counsel’s errors, he would not have pleaded guilty and would have insisted on going to
trial.” Id. (quoting Commonwealth v. Rathon, 899 A.2d 365, 369-70 (Pa. Super. 2006)).
Reasonable probability “merely refers to a probability sufficient to undermine confidence
in the outcome.” Id. (quoting Rathon, 899 A.2d at 370). Trial counsel is presumed to be
effective and Defendant must prove each prong by a preponderance of the evidence. Id.
(citations omitted).
Defendant’s chief ineffective assistance of counsel claim centers on Attorney
Halkias’s purported failure to advise Defendant of the collateral consequences of a guilty
plea – namely that his street time while out on parole would be stripped, causing him to
serve the remainder of his previous sentence before beginning the sentence imposed in
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this case. While Defendant testified extensively on this point, we do not find his
testimony credible. “Credibility determinations are the province of the PCRA court.”
Commonwealth v. Battle, 883 A.2d 641, 648 (Pa. Super. 2005). On his written guilty plea
colloquy which accompanied his oral plea, Defendant affirmatively answered that he was
on parole or probation, that he understood a guilty plea could result in a violation of his
31
N.T. at 8-11.
6
parole or probation terms leading to a separate sentencing in a separate proceeding, and
32
that a guilty plea could carry collateral consequences with it. Moreover, Defendant was
given the opportunity to ask the Court any questions about his rights and Attorney
33
Halkias brought Defendant’s Pennsylvania state parole detainer to the Court’s attention.
By contrast, we find Attorney Halkias’s and District Attorney Keating’s
testimonies to be credible. While he did not have a specific recollection of his discussions
with Defendant, Attorney Halkias testified that his standard practice is to inform his
clients facing parole detainers that “they get their street time taken” and that the sentences
34
are consecutively run. He also asserted that Defendant’s sudden decision to plea at the
bail reduction hearing did not catch him off guard, as he wanted to ensure that someone
formerly adamant on going to trial and concerned about their time to possess “every
35
opportunity to understand what implications they have when they enter a plea.” His
testimony is buttressed by District Attorney Keating, who recalled that he discussed
Defendant’s Pennsylvania state parole detainer with Attorney Halkias and the fact
Defendant would receive “a parole hit” but also added that he does not usually include
the parole hit as part of any particular plea because “we don’t know what the Parole
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Board is going to do.” On the basis of the Court’s credibility determinations,
Defendant’s claim fails for lack of arguable merit.
Next, Defendant asserts that Attorney Halkias was ineffective for failing to acquire
evidence logs because “without a proper chain of custody … the evidence used to force
37
me into a plea bargain \[w\]ould never have been allowed in court.” However, “gaps in
the chain of custody go to the weight that is to be afforded evidence, not to its
admissibility.” Commonwealth v. Copenhefer, 719 A.2d 242, 256 (Pa. 1998).
32
Guilty Plea Colloquy, para. 11- 13 (March 10, 2014).
33
In Re: Motion for Reduction of Bail/ Pretrial Conference/ Guilty Plea & Sentencing Proceedings, 5
(March 10, 2014).
34
N.T. at 22.
35
N.T. at 28-29.
36
N.T. at 31.
37
Motion for Post Conviction Collateral Relief, 3, filed March 13, 2015.
7
Accordingly, any suppression motion would have failed. As to what these gaps would
show or whether they existed, Defendant did not present any evidence but mere
suggestion. Thus, Defendant’s claim does not rise to the level of arguable merit. In
addition, Attorney Halkias testified that his decision not to obtain these evidence logs was
strategic, hoping to surprise the prosecution at trial without giving “the D.A.’s Office
38
more of a chance to try to fix it.” We find that Attorney Halkias possessed a reasonable
basis for his actions.
In addition, Defendant has also claimed that Attorney Halkias was ineffective for
failing to challenge the gun mandatory under 42 Pa.C.S. § 9712.1, requiring the firearm
be possessed by a defendant or their accomplice or in close proximity to the controlled
39
substance “at the time of the offense” for which that defendant is convicted. The
Affidavit of Probable Cause states that Defendant sold ten bags of heroin to a confidential
informant on August 27, 2013, at 27 Chestnut Street, Apartment 8, Mount Holly Springs,
40
PA. The following day, a search warrant was executed at 196 Birch Lane, Carlisle, PA.
During the execution of the search warrant at 196 Birch Lane, a sawed off shotgun and a
41
handgun that had been reported stolen were recovered. The firearms at issue were thus
found a day after Defendant sold heroin at his residence, and they were found at a
38
N.T. at 26.
39
N.T. at 11-12. 42 Pa.C.S. § 9712.1 reads in pertinent part:
Any person who is convicted of a violation of section 13(a)(30) of the act of April 14, 1972
(P.L.233, No.64), known as The Controlled Substance, Drug, Device and Cosmetic Act,
when at the time of the offense the person or the person's accomplice is in physical
possession or control of a firearm, whether visible, concealed about the person or the
person's accomplice or within the actor's or accomplice's reach or in close proximity to the
controlled substance, shall likewise be sentenced to a minimum sentence of at least five
years of total confinement.
For the sake of thoroughness, we also note that although the Superior Court did find 42 Pa.C.S. 9712.1 to
be unconstitutional in Commonwealth v. Newman, 99 A.3d 86 (Pa. Super. 2014), that decision was
handed down on August 20, 2014, five months after Defendant was sentenced. Attorney Halkias cannot
be deemed ineffective for failing to predict this change in the law. See Commonwealth v. Gribble, 863
A.2d 455 (Pa. 2004) (“Counsel cannot be deemed ineffective for failing to predict developments or
changes in the law.”).
40
Affidavit of Probable Cause, Commonwealth v. Gary Statler, CP-21-CR-2740-2013.
41
Id.
8
residence more than ten miles from where the transaction for which Defendant was
charged occurred. Critically, the location of the firearms at the time of the offense
charged here is unknown. The most that is known is that the firearms were in Carlisle a
day after Defendant sold heroin in Mount Holly Springs. This Court discerned no
indication in the record that Defendant or Stephanie Statler, who was with Defendant
when the confidential informant purchased heroin at Defendant’s residence, was in
possession of a firearm or that a firearm was in close proximity to any drugs at the Mount
42
Holly Springs residence at the time of the offense. As the firearms were not found until
a day after Defendant sold heroin to a confidential informant, in a location that was not
the site for any conduct by Defendant leading to the charges at this docket, we see no
argument for the application of the firearm mandatory to Defendant. However, no
specific testimony concerning the gun mandatory was elicited from Attorney Halkias
either on direct or cross examination and Defendant did not submit any evidence
regarding this allegation. As a result, we cannot discern what, if anything, Attorney
Halkias counseled Defendant concerning the gun mandatory or if he had plans to
challenge it in the future.
42
We note that the Affidavit of Probable Cause against Gary Statler at CP-21-CR-2740-2013 states that
“\[t\]he accused \[Gary Statler\] made additional statements that he was aware of illegal heroin being sold by
his daughter, Stephanie Statler and Richard Kenner at his residence 196 Birch Lane.” However,
Defendant was not charged at the instant docket for the alleged conduct charged against Gary Statler at
2740-2013 and thus whether Defendant did in fact sell heroin at her father Gary Statler’s address, where
firearms were recovered, is irrelevant to the applicability of section 9712.1 at this docket for conduct
occurring at Defendant’s residence. Uncharged conduct simply cannot serve as the predicate offense in
applying section 9712.1. We also note that a conviction for Conspiracy to 35 P.S. § 780-113(a)(30),
which Defendant was also charged with, cannot serve as the predicate offense, regardless of the factual
allegations underlying the Conspiracy charge. Section 9712.1 only provides for a mandatory minimum of
five years where a defendant is convicted of a violation of 35 P.S. § 780-113(a)(30). See Commonwealth
v. Johnson, 26 A.3d 1078 (Pa. 2011) (“It is an established principle of law that, under the Crimes Code of
our Commonwealth, conspiracy to commit a substantive offense, and the substantive offense itself which
is the object of the conspiracy, are two entirely separate crimes. Consequently, when the legislature omits
the crime of conspiracy from a mandatory minimum sentencing statute, we must view this as a deliberate
choice by the legislature not to apply the sentencing enhancement to a conspiracy conviction for the
substantive offense or offenses set forth in that statute. It is presumed the legislature is cognizant of the
distinction in the law between the inchoate crime of conspiracy and substantive criminal offenses, and,
thus, if the legislature intends a mandatory minimum sentencing statute to apply to the crime of
conspiracy, this intention will be reflected by the express language of the statute.”) (internal citations
omitted).
9
Nevertheless, we find that Defendant suffered no prejudice resulting from
counsel’s alleged failure to challenge the gun mandatory. Defendant did not plead to a
gun mandatory nor was it included in District Attorney Keating’s initial offer or the
43
subsequent negotiation. More importantly, had Defendant opted to proceed to trial
instead, he would have faced a two year mandatory minimum for drug weight pursuant to
18 Pa.C.S. § 7508(a)(7)(i) and the added threat of a greater sentence on convictions for
Criminal Conspiracy to Unlawful Deliver, Manufacture, or Possession with Intent to
Deliver a Schedule I Controlled Substance - Heroin and Criminal Use of a
44
Communication Facility. Defendant represented that two years was an acceptable term
45
yet agreed to a two and half to seven year sentence. A standard guideline range for three
46
convictions would have resulted in a five to six and a half year sentence. Instead,
Attorney Halkias negotiated, at Defendant’s instigation, a shorter guideline sentence on a
single count. Given the larger penalties potentially awaiting him after a trial, there is no
reasonable probability that, but for counsel’s errors, Defendant would not have pleaded
guilty and insisted on going to trial.
Finally, Defendant’s claim that Attorney Halkias was ineffective when he failed to
obtain a video recording, evidence logs, and recorded phone conversations as instructed
to bolster an alibi defense that placed Defendant elsewhere at the time of the initial heroin
47
purchase and transfers fails because it has no arguable merit. Other than averring that
43
Order of Court, In Re: Guilty Plea & Sentencing Proceedings (March 10, 2014); N.T. at 17.
44
Information, CP-21-CR-2500-2013, filed November 14, 2013. Under the sentencing guidelines, the
standard sentencing range on the criminal conspiracy charge would have been 24-30 months while the
criminal use of a communication facility carries a standard 12 – 18 month range. In total,
45
N.T. at 25-26.
46
Under the sentencing guidelines, the criminal conspiracy charge would have carried another 24-30
month standard sentence while the criminal use of a communication facility carried a 12-18 month
sentence. 204 Pa. Code §§ 303.3(c)(3), 303.15. The charge to which Defendant pleaded guilty carried a
standard sentence of 24-30 months. Pennsylvania Commission on Sentencing, Guideline Sentence Form,
filed April 16, 2014. In total, a standard sentence for the three convictions would range from 60-78
months or five to six and a half years. However, this range is only a guideline and the legislature has
authorized sentences of up to 30 years for a second or subsequent violation of 35 P.S. § 780-113(a)(30)
and 7 years for 18 Pa.C.S. § 7512(a). 35 P.S. §§ 780-113(f)(1), 780-115(a), 18 Pa.C.S. § 7512(b).
47
N.T. at 7.
10
this evidence would demonstrate his absence and lack of interest in heroin dealing,
Defendant neglected to provide any specifics these items would establish such as the
time, place, and location of his actual whereabouts at the time of the heroin sale and
transfer. As discussed earlier, Attorney Halkias testified his decision not to pull the
evidence logs was to prevent the District Attorney’s Office from strengthening the
heroin’s chain of custody but he was not asked to explain his alleged inability to request
the video recording or recorded phone conversations. As a result, Defendant has
presented only an unsupported allegation. Furthermore, “a person who elects to plead
guilty is bound by the statements he makes in open court while under oath and he may
not later assert grounds for withdrawing the plea which contradict the statements he made
at his plea colloquy.” Commonwealth v. Turetsky, 925 A.2d 876, 881 (Pa. Super. 2007)
(quoting Commonwealth v. Pollard, 832 A.2d 517, 523 (Pa. Super. 2003)). Defendant
cannot now assert Attorney Halkias was ineffective when he failed to obtain an
exculpatory video recording, evidence logs, and recorded phone conversations after
admitting under oath he had given a confidential informant 210 heroin bags, spoken to
the informant about their return in a recorded phone call, and obtained their return the
48
following day. These colloquy statements contradict the existence of the alleged
evidence Defendant tasked Attorney Halkias to procure, particularly the video recording.
48
In Re: Motion for Reduction of Bail/ Pretrial Conference/ Guilty Plea & Sentencing Proceedings, 3-4
(March 10, 2014). The relevant portion is found below:
Mr. Keating: Your Honor, the facts are that back on August 27thin 2013, members of
the Cumberland County Drug Task Force were working with Confidential Informant 1825 to go
to 27 Chestnut Street, Apartment 8, Mt. holly Springs, to purchase ten bags of heroin. When
that cooperating individual returned from the residence, he gave the Affiant 210 bags of heroin
and stated that the defendant and Stephanie Statler were present inside of the apartment when he
arrived. He initially purchased the ten bags of heroin from the defendant, and the defendant then
gave the additional heroin to the C.I. to hold onto until he could get it back. Statler was involved
in the purchase and sale of this in that she helped facilitate that particular buy.
Then on the 28th, Statler and Kenner arrived at the Newville Sheetz to meet with the
C.I. to obtain the 200 bags back. They had actually done a recorded phone call to the defendant,
and both Statler and the defendant were on the recording about returning the 200 bags that were
involved. So the defendant is admitting that he possessed the initial heroin with the intent to
deliver, and deliver it as a principal, and the accomplice was Stephanie Statler.
The Court: Is that what you did, sir?
The Defendant: Yes.
11
Having found that Attorney Halkias rendered effective assistance of counsel,
Defendant’s claim that his plea was unknowing or involuntary as a result of Attorney
Halkias’s alleged ineffectiveness must fail. Therefore, Defendant’s motion for post
conviction collateral relief is denied.
BY THE COURT,
Christylee L. Peck, J.
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