Com. v. Stone, J. ( 2016 )

J-S47006-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JONATHAN MICHAEL STONE,
Appellant No. 1716 MDA 2015
Appeal from the PCRA Order September 15, 2015
In the Court of Common Pleas of Lebanon County
Criminal Division at No(s): CP-38-CR-0001886-2011
BEFORE: SHOGAN, LAZARUS, and JENKINS, JJ.
MEMORANDUM BY SHOGAN, J.: FILED AUGUST 01, 2016
Appellant, Jonathan Michael Stone, appeals from the order denying his
petition for relief filed pursuant to the Post Conviction Relief Act (“PCRA”),
42 Pa.C.S. §§ 9541-9546. We affirm.
The PCRA court summarized the underlying facts of this case as
follows:
During the Summer of 2010, [Appellant] was developed as
a suspect in a continuing course of burglaries spanning from
early 2009 and continuing through April 2011 around the
Cornwall Borough, West Cornwall Township, and Mount Gretna
areas of Lebanon County, Pennsylvania. These crimes appeared
to be consistent with similar burglaries occurring in Union
Township, Swatara Township, and Jonestown Borough, Lebanon
County, Pennsylvania. Sergeant Brett Hopkins (herein Sgt.
Hopkins) of the Cornwall Borough Police Department, Trooper
Wesley Levan (herein Tpr. Levan) of the Pennsylvania State
Police, and Detective Michael Dipalo (herein Det. Dipalo) of the
Lebanon County Detective Bureau investigated the crimes and
found that the perpetrator(s) appeared to know when the victims
J-S47006-16
would not be home. The perpetrator(s) also appeared to target
jewelry and other valuables including silver flatware and
grandfather clocks. As the investigation continued, investigators
concluded that [Appellant] and/or one of his known associates
had some connection to the targeted locations or victims. Some
of the homes burglarized were in close proximity to [Appellant’s]
grandmother’s residence [in], Mount Gretna, Lebanon County,
Pennsylvania, where [Appellant] resided. Some of the burglaries
occurred in residences where [Appellant] had done work as a
home improvement contractor.
[Appellant] was injured while attempting to flee from a
burglary in Camp Hill and was placed in the hospital ward with a
broken leg. At this time, [Appellant] reached out to Sgt.
Hopkins offering to cooperate with the investigators and provide
them with information regarding the string of Burglaries and
Thefts in the area. [Appellant] believed he could reduce any
potential sentence by cooperating with law enforcement. After
being read his Miranda[1] warnings, [Appellant] voluntarily
provided statements to the police concerning the incidents under
investigation and agreed to show police the residences he had
burglarized and where he stored some of the stolen items.
[Appellant] continuously asked and spoke of being given
consideration for his cooperation. Throughout the initial
interrogation with Sgt. Hopkins, [Appellant] asked about the
Crossroads Program or other drug and alcohol treatment
programs. Sgt. Hopkins said they could ask the District Attorney
(herein DA). The notion of drug and alcohol treatment stuck in
[Appellant’s] mind as being set in stone. [Appellant] was later
charged with the offenses to which he had confessed. Around
the same time period, [Appellant] was charged with similar
offenses in Cumberland, Lancaster, and York counties, to which
he also pleaded guilty. [Appellant] was sentenced to periods of
incarceration in all four counties for the Burglary charges while
the Theft charges were nolle prossed or merged for purposes of
sentencing.
PCRA Court Opinion, 11/3/15, at 4-5.
____________________________________________
1
Miranda v. Arizona, 384 U.S. 436 (1966).
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More specifically, with regard to the above-captioned matter, on
November 30, 2011, Appellant was charged with twenty-three counts of
theft by unlawful taking, twenty-two counts of burglary, two counts of
criminal conspiracy, and one count each of dealing in proceeds of unlawful
activities, corrupt organizations, receiving stolen property, and possession of
an instrument of crime. On May 2, 2012, Appellant entered an open guilty
plea to all charges. On June 13, 2012, the trial court sentenced Appellant to
serve an aggregate term of incarceration of twenty to forty years, pay costs
and fines, and make restitution to the victims. On August 8, 2013, this
Court affirmed Appellant’s judgment of sentence. Commonwealth v.
Stone, 1301 MDA 2012, 83 A.3d 1061 (Pa. Super. filed August 8, 2013)
(unpublished memorandum).
On July 9, 2014, Appellant, pro se, filed the instant PCRA petition. On
July 11, 2014, the PCRA court appointed counsel, who filed an amended
PCRA petition on April 22, 2015. The PCRA court held a hearing on May 21,
2015. On September 15, 2015, the PCRA court entered an order denying
relief. This timely appeal followed. Both Appellant and the PCRA court have
complied with Pa.R.A.P. 1925.
Appellant presents the following issues for our consideration:
1. Whether Plea Counsel was ineffective for unlawfully inducing
Appellant into accepting a guilty plea, where Plea Counsel failed:
(1) To give Appellant the requested discovery; and (2) To
discuss the elements of and the defenses to every charge to
determine whether the alleged crimes were actually burglary or
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theft in nature as Appellant did not understand the statutory
difference between burglary and theft?
2. Whether Plea Counsel was ineffective for failing to file Post-
Sentence Motions to withdraw Appellant’s Guilty Plea and for
Reconsideration of Sentence, where Appellant and Appellant’s
father explicitly requested Plea Counsel to file said Motions?
3. Whether Appellant was denied his constitutionally guaranteed
right to due process when the Commonwealth breached their
initial plea agreement where Appellant was to be placed in a
drug rehabilitation center in exchange for cooperating with the
police during their investigation when he was represented by
Attorney Susan Pickford during police interrogation?
Appellant’s Brief at 4-5.
Our standard of review of an order granting or denying relief under the
PCRA requires us to determine whether the decision of the PCRA court is
supported by the evidence of record and is free of legal error.
Commonwealth v. Lippert, 85 A.3d 1095, 1100 (Pa. Super. 2014). “The
PCRA court’s findings will not be disturbed unless there is no support for the
findings in the certified record.” Id.In his first two issues, Appellant argues that trial counsel provided
ineffective assistance. In resolving questions of counsel’s effectiveness, we
begin with the presumption that counsel rendered effective assistance.
Commonwealth v. Bomar, 104 A.3d 1179, 1188 (Pa. 2014). To overcome
that presumption, the petitioner must establish: “(1) the underlying claim
has arguable merit; (2) no reasonable basis existed for counsel’s action or
failure to act; and (3) the petitioner suffered prejudice as a result of
counsel’s error, with prejudice measured by whether there is a reasonable
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probability that the result of the proceeding would have been different.” Id.(citation omitted). If the petitioner fails to prove any of these prongs, the
claim is subject to dismissal. Id.Appellant first claims that trial counsel was ineffective by unlawfully
inducing him into pleading guilty when counsel failed to provide Appellant
with items in his “discovery packet.” Appellant’s Brief at 15-17. Appellant
contends that, on multiple occasions, he requested the discovery items for
review and has not received them. Id. In addition, Appellant claims that
trial counsel was ineffective for failing to review the specific elements of the
charges brought against him. Id. at 18-26. Specifically, Appellant alleges
that he was under the mistaken belief that burglary and theft were the same
crime and that trial counsel did not advise him of the statutory differences.
Id. at 22. Consequently, Appellant asserts that his plea was unlawfully
induced by trial counsel’s ineffective assistance.
We have reviewed the briefs of the parties, the relevant law, the
thorough opinion of the PCRA court, and the complete certified record before
us on appeal. We conclude that the PCRA court’s opinion adequately and
accurately addresses Appellant’s allegations of trial counsel’s ineffective
assistance with regard to the entry of his guilty plea. PCRA Court Opinion,
11/3/15, at 7-13. As the record establishes, at the PCRA hearing trial
counsel testified that, had Appellant requested the discovery items, trial
counsel would have given Appellant “copies of everything.” N.T., 5/21/15,
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at 79. Likewise, trial counsel testified that he explained the elements of the
various crimes charged to Appellant. Id. at 80-81. Accordingly, because
the PCRA court’s analysis is supported by the record, we adopt its November
3, 2015 opinion as our own, and conclude that Appellant’s allegations that
trial counsel provided ineffective assistance with regard to unlawful
inducement of the guilty plea lack merit.2
Appellant next argues that trial counsel was ineffective for failing to file
either a post-sentence motion to withdraw Appellant’s guilty plea or a
petition for reconsideration of sentence. Appellant’s Brief at 26-35.
Appellant contends that both he and his father had requested trial counsel to
file various motions, and trial counsel failed to do so. Id. at 31, 33.3
____________________________________________
2
The parties are directed to attach a copy of that opinion in the event of
further proceedings in this matter.
3
To the extent Appellant includes in his appellate brief an argument of trial
counsel ineffective assistance for failure to file a presentence motion to
withdraw his guilty plea, we observe that Appellant has failed to present this
issue to the PCRA court in his PCRA petition. Rather, Appellant has raised
this issue for the first time on appeal. We have held that when a claim of
ineffective assistance is not raised in a PCRA petition, but presented to this
Court for the first time on appeal, the claim is waived. Commonwealth v.
Williams, 909 A.2d 383, 386 n.6 (Pa. Super. 2006) (citing Commonwealth
v. Williams, 899 A.2d 1060, 1066 n.5 (Pa. 2006)). Moreover, this specific
issue was not raised in Appellant’s Pa.R.A.P. 1925(b) statement. For this
reason too, we are constrained to conclude that this specific argument is
waived for purposes of appellate review. See Commonwealth v. Lord,
719 A.2d 306, 308 (Pa. 1998) (holding that where a trial court directs a
defendant to file a concise statement pursuant to Pa.R.A.P. 1925, any issues
not raised in that statement shall be waived). See also Commonwealth v.
Oliver, 946 A.2d 1111, 1115 (Pa. Super. 2008) (noting that Lord “requires
(Footnote Continued Next Page)
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Again, we have reviewed the briefs of the parties, the relevant law, the
record certified on appeal, and the opinion of the PCRA court dated
November 3, 2015. It is our determination that the PCRA court
appropriately denied Appellant’s challenge to the effective assistance of trial
counsel with regard to failure to file motions on Appellant’s behalf. PCRA
Court Opinion, 11/3/15, at 13-21. Thus, we conclude that Appellant’s claim
fails and adopt the PCRA court’s analysis as our own.
In his final issue, Appellant argues that he was denied his
constitutional right to due process when the Commonwealth allegedly
violated an initial plea agreement. Appellant’s Brief at 35-46. Appellant
claims that, in exchange for cooperating with the police, he was promised
placement in a drug rehabilitation center and, essentially, induced into
confessing to the crimes and entering a guilty plea.
However, Appellant has not raised this issue in the context of
ineffective assistance of counsel. Thus, because Appellant could have raised
the issue in his direct appeal to this Court, but did not do so, it is waived.
See 42 Pa.C.S. § 9544(b) (stating “an issue is waived if the petitioner could
have raised it but failed to do so before trial, at trial, during unitary review,
on appeal, or in a prior state post[-]conviction proceeding”). See also
Commonwealth v. Lambert, 797 A.2d 232, 240 (Pa. 2001) (PCRA
_______________________
(Footnote Continued)
a finding of waiver whenever an appellant fails to raise an issue in a court-
ordered Pa.R.A.P. 1925(b) statement”).
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petitioner’s issues that could have been raised on direct appeal but were not,
are waived under 42 Pa.C.S. § 9544(b)).4
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/1/2016
____________________________________________
4
Even if we had not found this issue to be waived, we would have affirmed
on the basis of the PCRA court’s thorough discussion of the issue. PCRA
Court Opinion, 11/3/15, at 21-26.
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Circulated 07/19/2016 03:03 PM
IN THE COURT OF COMMON PLEAS LEBMWN, l\\
OF LEBANON COUNTY, PENNSYL V ANI~lS NDV 3 fff!l g Sl
CRIMINAL DIVISION
COMMONWEALTH OF
PENNSYLVANIA
v. CP-38-CR-1886-2011
JONATHAN M. STONE,
Petitioner
ORDER
AND NOW, this 3rd day of November, 2015, after careful consideration of the
record, it appears to the Court that the issues raised by Petitioner have previously
been addressed by this Court in an Opinion dated September 15, 2015, attached
hereto, the Clerk of Courts of Lebanon County is hereby directed to transmit the
record of this case, together with this Order in lieu of an. Opinion, to the Superior
Court of Pennsylvania for its review, pursuant to the requirements of Pa.R.A.P.
1931.
Cc: Jonathan Faust, Esquire -\11Dfc
Erin Zimmerer, Esquire -mCLLQ
Amanda C. Pipenberg, Law Clerk-i ()0Ft.,
PURSIJP:,NT TO Pa.R.Crim. P. 114
Al! parties are hereby noi!fird
this date:..l\.:a:15.~
Clerk of Courts, Lebanon, PA
IN THE COURT OF COMMON PLEAS
OF LEBANON COUNTY, PENNSYLVANI~15 NOV 3 Rrl 9 ~)1
CRIMINAL DIVISION
COMMONWEALTH OF
PENNSYLVANIA
v. CP-38-CR-1886-2011
JONATHAN M. STONE,
Petitioner
APPEARANCES:
Jonathan Faust, Esquire FQr Commonwealth
District Attorney's Office
Erin Zimmerer, Esquire For Petitioner
Zimmerer & Montgomery
OPINION BY JONES, J.:
Before this Court is Petitioner's Petition for Post-Conviction Relief.
Petitioner raises two claims of ineffective assistance of counsel and one claim of a
violation of his due process rights. Petitioner claims the following:
1) Petitioner alleges that Plea Counsel was ineffective for unlawfully inducing
Petitioner to entering an open guilty plea because:
a. Plea Counsel failed to provide Petitioner with copies of the discovery
materials which he requested several times arid
2
. I
b. Plea Counsel failed to explain and discuss the elements of and defenses to
the charges of Burglary and Theft as Petitioner did not understand the
difference between the two offenses and the defenses to them prior to entering
his plea;
2) Petitioner alleges that Plea Counsel was ineffective for failing to file Post-
Sentence Motions to Withdraw the Guilty Plea and for Reconsideration of
Sentence when Petitioner and his father explicitly requested that such be filed;
and
3) Petitioner alleges that his due process rights were violated when the
Commonwealth breached the initial plea agreement that Petitioner would be
sentenced to a drug rehabilitation center, specifically Crossroads, in lieu of a
jail sentence and in exchange for Petitioner's cooperation with the police
investigation.
The Commonwealth avers the following in response to the Amended Petition:
1) Petitioner entered an open guilty plea, when Plea Counsel advised him to
accept the District Attorney's offer of twelve (12) to thirty (30) years on all of
the charges;
2) Petitioner was never promised drug rehabilitation in lieu of jail by the District
Attorney or by police;
3) Petitioner was fully aware ofthe charges against him in that he had a copy of
the Criminal Information and had several conversations with Plea Counsel
about the factual basis for the charges and attempting to get the District
Attorney to reduce the offered plea agreement; and
4) Petitioner signed the written guilty plea colloquy admitting that he understood
the charges against him and that he was not promised anything in return for
entering a plea of guilty.
3
For the reasons set forth in detail in this Opinion, this Court finds that
Petitioner's claims of ineffective assistance of counsel lack merit and that Petitioner
· knowingly and voluntarily entered an open guilty plea knowing that he would be
sentenced to a period of incarceration. Therefore, Petitioner's Petition for Post-
Conviction Relief is denied as to all of the enumerated claims therein. The following
Opinion contains the legal and factual findings of this Court, as well as the rationale
for the denial of Petitioner's claims.
I. FACTUAL HISTORY
During the Summer of 2010, Jonathan M. Stone (herein Petitioner) was
developed as a suspect in a continuing course of burglaries spanning from early 2009
and continuing through April 2011 around the Cornwall Borough, West Cornwall
Township, and Mount Gretna areas of Lebanon County, Pennsylvania. These crimes
appeared to be consistent with similar burglaries occurring in Union Township,
Swatara Township, and Jonestown Borough, Lebanon County, Pennsylvania.
Sergeant Brett Hopkins (herein Sgt. Hopkins) of the Cornwall Borough Police
Department, Trooper Wesley Levan (herein Tpr. Levan) of the Pennsylvania State
Police, and Detective Michael Dipalo (herein Det. Dipalo) of the Lebanon County
Detective Bureau investigated the crimes and found that the perpetrator(s) appeared
' to know when the victims wouldnot be home. The perpetrator(s) also appeared to
target jewelry and other valuables including silver flatware and grandfather clocks.
As the investigation continued, investigators concluded that Petitioner and/or one of
his known associateshad some connection to the targeted locations or victims. Some
of the homes burglarized were in close proximity to Petitioner's grandmother's
residence of. 201 Timber Road, Mount Gretna, Lebanon County, Pennsylvania,
where Petitioner resided. Some of the burglaries occurred in residences where
Petitioner had done work as a home improvement contractor.
4
Petitioner was injured while attempting to flee from a burglary in Camp Hill
and was placed in the hospital ward with a broken leg. At this time, Petitioner
reached out to Sgt. Hopkins offering to cooperate with the investigators and provide
them with information regarding the string of Burglaries and Thefts in the area.
Petitioner believed he could reduce any potential sentence by cooperating with law
enforcement. After being read his Miranda warnings, Petitioner voluntarily
provided statements to the police concerning the incidents under investigation and
agreed to show police the residences he had burglarized and where he stored some
of the stolen items. Petitioner continuously asked and spoke of being given
consideration for his cooperation. Throughout the initial interrogation with Sgt.
Hopkins, Petitioner asked about the Crossroads Program or other drug and alcohol
treatment programs. Sgt. Hopkins said they could ask the District Attorney (herein
DA). The notion of drug and alcohol treatment stuck in Petitioner's mind as being
set in stone. Petitioner was later charged with the offenses to which he had
confessed. Around the same time period, Petitioner was charged with similar
offenses in Cumberland, Lancaster, and York counties, to which he also pleaded
guilty. Petitioner was sentenced to periods of incarceration in all four counties for
the Burglary charges while the Theft charges were nolle prossed or merged for
purposes of sentencing.
II. PROCEDURALHISTORY
Petitioner was charged with the following on December 1, 2011 in Lebanon
County:
1. One (1) count of Dealing in Proceeds of Unlawful Activities (Fl);
2. One (1) count of Criminal Conspiracy/Dealing in Proceeds of Unlawful
Activities (Fl);
3. One (1) count of Corrupt Organizations (Fl);
5
4. Twenty-two (22) counts of Burglary (Fl);
5. Thirteen (13) counts of Theft by Unlawful Taking (F3);
6. One (1) count of Theft by Unlawful Taking (F2);
7. One (1) count of Receiving Stolen Property (F3);
8. One (1) count of Conspiracy/Receiving Stolen Property (F3);
9. One (1) count of Possession of an Instrument of Crime (Ml);
10. Two (2) counts of Theft by Unlawful Taking (M2); and
11. Seven (7) counts of Theft by Unlawful Taking (Ml).
The Criminal Information charging Petitioner in Lebanon County had a total of fifty-
one ( 51) counts.
Petitioner entered an open guilty plea to all of the above charges on May 2,
2012. Unbeknownst to this Court or the Court Stenographer on the day of his guilty
plea, the disk in the Court Stenographer's machine was not functioning properly or
was a defective disk. Unfortunately, the disk was so bad that no one was able to
recover the notes of testimony taken at Petitioner's guilty plea, even after being sent
out to the manufacturer. Thus, the Court and both parties are without the benefit of
a transcript for Petitioner's guilty plea.
On June 13, 2012, Petitioner was sentenced to pay costs and fines in
connection to these charges, to make restitution to the victims, and to be imprisoned
in a State Correctional Institution for an aggregate, indeterminate period the
minimum of which shall be twenty (20) years and the maximum not to be more than
forty ( 40) years. This sentence was to run concurrent to any other sentences imposed
upon Petitioner. Petitioner did not file Post-Sentence Motions with this Court.
Petitioner (through Plea Counsel) filed a timely Notice of Appeal to the Superior
Court on July I 0, 2012. Petitioner was directed to file a Concise Statement of
Matters Complained of on Appeal on July 11, 2012. Petitioner filed his Concise
Statement on July 26, 2012. This Court affirmed its rulings and sent the file to the
6
Superior Court on September 20, 2012. The Superior Court affirmed Petitioner's
sentence on August 3, 2013. Petitioner was represented in Lebanon County by
Attorney Charles Buchanio (herein Att. Buchanio or Plea Counsel) prior to entering
his plea and through his Direct Appeal to the Superior Court. Plea Counsel filed an
Ander 's brief along with the Direct Appeal and requested that he be permitted to
withdraw as counsel. Plea Counsel's request was granted in the Opinion of the
Superior Court dated August 3, 2013.
Petitioner filed a pro se Petition for Post-Conviction Relief (herein pro se
Petition) on July 9, 2014. Attorney Erin Zimmerer (herein Att. Zimmerer or PCRA
counsel) was appointed as PCRA Counsel on July 11, 2014. The Commonwealth
filed a response to Petitioner's prose Petition on July 25, 2014. This Court filed an
Order on March 3, 2015 directing the parties to contact Court Administration to
schedule a PCRA Hearing. A PCRA Hearing (herein the Hearing) was scheduled
for May 21, 2015. PCRA Counsel filed an Amended Petition on April 22, 2015
(herein Amended Petition). Upon PCRA .Counsel's Motion, this Court granted
Petitioner the opportunity to present evidence as to the issues raised in the pro se
Petition and the Amended Petition at the Hearing. The Hearing was held as
scheduled. The matter is now ripe for disposition.
III. DISCUSSION
Petitioner raises issues of ineffective assistance of counsel and violations of
his due process rights in his Amended Petition. The Court shall address these issues
separately.
A. Ineffective Assistance of Counsel
Petitioner alleges that he was denied effective assistance of counsel in the
following ways:
7
1. Counsel unlawfully induced Petitioner to enter a plea of guilty by failing
to:
a. Provide Petitioner with the discovery materials that he had
previously requested and
b. Discuss the elements of Burglary and Theft by Unlawful Taking
with Petitioner who did not understand the difference between the
charges; and
2. Counsel failed to file Post-Sentence Motions to Withdraw the Guilty Plea
and for Reconsideration of Sentence when Petitioner and his father
specifically requested that a Post-Sentence Motion be filed.
Ineffective assistance of counsel may be raised in a Petition under the Post-
Conviction Relief Act where counsel's performance "in the circumstances of the
particular case, so undermined the truth-determining process that no reliable
adjudication of guilt or innocence could have taken place." 42 Pa.C.S.A. §
9542(2)(il). Trial counsel is presumed to be effective, and the Defendant bears the
burden of proving otherwise. Commonwealth v. Lewis, 708 A.2d 497 (Pa.Super.
1998); Commonwealth v, Williams, 570 A.2d 75 (Pa. 1990). In determining
whether counsel rendered ineffective assistance, the Court must first determine
whether the issue underlying the claim of ineffectiveness has even arguable merit.
Commonwealth v. DiNicoia, 751 A.2d 197 (Pa.Super. 2000); Commonwealth v,
Johnson, 588 A.2d 1303 (Pa. 1991). If the claim is without arguable merit, the
Court's inquiry ends, as counsel will not be deemed ineffective for failing to pursue
a meritless issue. Id. Even if the underlying claim is of arguable merit, the
Defendant must establish that the course of action chosen by counsel had no
reasonable basis designed to effectuate the Defendant's interest. Id. In addition, the
Defendant must also establish that, but for counsel's deficient performance, the
8
result of the trial would have been different. lid!. No relief is due, however, on any
claim that has been waived or previously litigated, as those terms have been
construed in the decisions of the Court . .See 412 JP'ai.C.S.A. § 9543(a)(3).
Relief may be granted for ineffective assistance of counsel on the basis of a
guilty plea when it can be shown that counsel's ineffectiveness caused the plea to be
unknowing and involuntary. Commonwealth v. Yager, 454 Pa.Super. 428, 437
(1996). This standard is similar to the "manifest injustice" applicable to all post-
. sentence attempts to withdraw a plea. Id: "Thejudge shall conduct-a· separate
inquiry of the defendant on the record to determine whether the defendant
understands and voluntarily accepts the terms of the plea agreement on which the
guilty plea ... is based." Pa.R.C.P. Rule 590(B)(2). The Court is required to ask a
series of questions on the record to determine if a defendant understands his or her
, rights, understands the chargersj.against.them.and understandsthe punishment that .
might be imposed. See Commonwealth v, Persinger, 532 Pa. 317 (1992);
Commonwealth v. Kulp, 476 Pa. 358 (1978); Commonwealth v, Mendoza, 730
A.2d 503 (Pa.Super. 1999).
1. Unlawful Inducement to Enter a Guilty Plea
Petitioner's first claim of ineffective assistance of counsel contains two
allegations. First) that he requested copies of the discovery materials and Plea
' .
Counsel failed to provide those materials to him. Second, that Plea Counsel did not
explain the elements of Burglary and Theft, or the defenses thereto, and he did not
understand the charges against him when he entered his guilty plea. Petitioner
claims that these two failures on the part of Plea Counsel led Petitioner to enter a
guilty plea) which he would not have done had Plea Counsel givenhim discovery
and explained the elements of the charges.
9
a. Discovery.
Petitioner alleges that Plea Counsel unlawfully induced him to enter a plea of
guilty because he failed to provide Petitioner with the discovery materials which he
had requested. Petitioner alleges that Att. Buchanio failed to provide him with the
discovery materials from the DA. Petitioner alleges that this failure rises to the level
of ineffective assistance of counsel. Att. Buchanio testified that he received
discovery from the Commonwealth which consisted of two disks, multiple pages of
'material, and the Criminal Information. (Hearing Transcript at p 77) Att. Buchanio
reviewed all of the discovery provided to him. One disk contained photos of the
items stolen in this matter and the other was the audio file of Petitioner's confession
to police.
Att. Buchanio testified that he did give Petitioner a copy of the Criminal
-Information so that he could review all of the charges, against -him,in this, case, .but. , ·
does not recall Petitioner asking for the rest of discovery. (Hearing Transcript at pp
77- 78) He further testified that if Petitioner had specifically requested copies of all
of the discovery, he would have provided such copies to Petitioner. (Hearing
Transcript at pp 78- 79) Att. Buchanio did recall asking Petitioner if he wanted to
challenge the confession, but Petitioner did not want to do so because he had been
given his rights prior to making a statement to police. (Hearing Transcript at p 78)
Petitioner has not identifiedanything in the discovery materials that would have led
him to go to trial or that failure to produce those materials to Petitioner was so
unreasonable under the circumstances of this case that it rose to the level of manifest
injustice. Petitioner has not shown how this alleged failure unlawfully induced him
to enter a guilty plea in this case.
b. Statutory differences between charges.
Petitioner alleges that Att. Buchanio failed to explain the elements of, and the
defenses to, Burglary and Theft by Unlawful Taking to him. Petitioner argues that
10
if Plea Counsel had defined these charges for Petitioner, he would have told Plea
Counsel that some of the Burglary charges should have been Theft by Unlawful
Taking charges because of the facts of the offense. Petitioner alleges that Plea
Counsel's failure to define the offenses so that Petitioner understood them,
unlawfully induced him to enter a guilty plea to all of the offenses as charged instead
of challenging the factual basis for the charges at trial, Specifically, Petitioner
alleges that in two instances the buildings were abandoned and in one instance he
was in the building to use the restroom and get a rake for work. Since he believes
this was ineffective assistance, he alleges that his plea was not knowingly and
voluntarily entered. At the time of sentencing, this Court told Petitioner that it did
not believe Petitioner's assertion that the buildings were abandoned or that he was
privileged to be in the building at the time he committed the offenses. (Sentencing
Transcript at pp 15-16) This Court still finds no merit in Petitioner's argument that
some of the offenses were Theft rather than Burglaries. (See Hearing Transcript at
pp 13-18)
Burglary is defined as follows:
A person commits the offense of burglary if, with the intent to commit
a crime therein, the person:
(1) enters a building or occupied structure, or separately secured
or occupied portion thereof that is adapted for overnight
accommodations in which at the time of the offense any person is
present;
(2) enters a building or occupied structure, or separately secured
or occupied portion thereof that is adapted for overnight
accommodations in which at the time of the offense no person is
present;
(3) enters a building or occupied structure, or separately secured
or occupied portion thereof that is not adapted for overnight
accommodations in which at the time of the offense any person is
present; or
( 4) enters a building or occupied structure, or separately secured
or occupied portion thereof that is not adapted for overnight
11
accommodations in which at the time of the offense no person is
present.
18 JP>a.C.S.A. § 3502(a).
The statutory defenses to Burglary include that "the building or structure was
abandoned" and that the person "is licensed or privileged to enter." See 18
Pa.C.S.A. § 3502(b). Theft by Unlawful Taking - Movable Property is defined as
follows: "a person is guilty of theft if he unlawfully takes, or exercises unlawful
control over, moveable property of another with the intent to deprive him thereof."
18 Pa.C.S.A. § 3921(a).
Plea Counsel testified at the Hearing that he defined each of the offenses with
which Petitioner was charged and then reviewed the factual basis for each individual
charge. Plea Counsel explained that he did not define the offense as he went over
each charge because there were multiple charges for Burglary and Theft. He
explained the elements of each type of offense and the defenses thereto prior to
reviewing the factual basis for each individual count of the Criminal Information
with Petitioner. This Court notes that Petitioner was charged under the same statutes
1,
in Cumberland Lancaster, and Y ork3 Counties around the same time as the charges
in this case. Petitioner pleaded guilty in all four counties.4
This Court believes that Art. Buchanio did explain the elements of and the
defenses to the charges of Burglary and Theft to Petitioner prior to the entry _of
Petitioner's open guilty plea. Even if Att. Buchanio had not done so, this Court finds
it difficult to believe that no one explained the charges of Burglary and Theft to
Petitioner so that he understood the difference between them or the defenses to them.
1
CP-21-CR-2705-2011; CP-21-2706-2011; CP-21-2707-2011; CP-21-2708-2011; CP-21-2709-2011; CP-21-2710-
2011; CP-21-2711-2011; and CP-21-1502-2011.
2
CP-36-CR-31-2012 and CP-36-CR-39-2012.
3 CP-67-CR-402-2012.
4
Petitioner pleaded guilty on the following dates: Cumberland County (all docket numbers) on March l, 2012; York
County on April 18, 2012; and Lancaster County (both docket numbers) on September 7, 2012. Lancaster is the
only county in which Petitioner pleaded guilty after he pleaded guilty in this matter.
12
Petitioner was charged under the same statutes in three other counties and was
represented by separate counsel in each of those cases. It seems highly unlikely that
none of Petitioner's attorneys explained these charges to him prior to him pleading
guilty. Petitioner entered his guilty plea in Lebanon County after pleading guilty
and being sentenced in Cumberland and York Counties.
Further, this Court goes through an oral colloquy, as required, at the time any
person enters a guilty plea. It is the practice of this Court to review the written guilty
plea colloquy and ask the individual if they understand the charges against him/her
and admit to the factual basis as set forth in the Criminal Information. This Court
will not accept a guilty plea unless and until the Court is satisfied that the individual
has had sufficient time to review the charges and the factual basis with counsel.
While we are without a transcript in this case, this Court does not vary from the
general outline of questions asked of defendant's entering guilty pleas before him,
which includes the questions mentioned above. (See Hearing Transcript at pp 24-
52)
2. Post-Sentence Motions
Petitioner's second claim of ineffective assistance of counsel alleges that Plea
Counsel failed to file Post-Sentence Motions to Withdraw the Guilty Plea and for
Reconsideration of Sentence. Petitioner alleges that he and his father specifically
requested that Plea Counsel file a Motion to Withdraw the guilty plea prior to
sentencing and immediately following sentencing. Plea Counsel did not file a Post- ·
Sentence Motion with this Court, but did file a timely Direct Appeal to the Superior
Court on July 12, 2012.
13
a. Reconsideration of Sentence.
Att. Buchanio testified that he was well aware that Petitioner was less than
thrilled with the sentence imposed ·in this case. (Hearing Transcript at p 84) He
testified that Petitioner did not request that he file to Withdraw Petitioner's guilty
plea until after sentencing. (Hearing Transcript at p 79) Att. Buchanio was aware
that Petitioner wanted to appeal his sentence and did file an appeal to the Superior
Court; he testified that Petitioner never asked him to file post-sentence motions.
(Hearing Transcript at p 88) Att. Buchanio stated that the Court had been very clear
and thorough in explaining its reasoning for the sentence imposed at the time of
sentencing. This is why he did not file Post-Sentence Motions seeking
Reconsideration of Sentence to the trial court.
Petitioner's appeal to the Superior Court alleged that this Court abused its
discretion by 1) sentencing Petitioner to an excessive period of time considering the
nature of the crimes and the harm done, 2).issuing consecutive sentences for multiple
counts of burglary and related offenses, and 3) sentencing Petitioner to a minimum
of twenty (20) years for property damage and theft when it is out of proportion to
other sentences imposed by this Court for other crimes. Although Petitioner did not
file an appeal raising these issues with this Court, the Court nonetheless issued an
Order and Opinion affirming its sentence and sent the file to the Superior Court for
' review. In affirming the sentence imposed, this Court noted that the Court has broad
discretion in sentencing and determining whether to run multiple sentences
consecutively or concurrently. See Commonwealth v, Mouzon, 571 Pa. 419, 423-
25 (2002) (internal citations omitted); Commonwealth v. Perry, 883 A.2d 599(Pa.Super. 2005). This Court explained that it considered the character and
experience of Petitioner, the pre-sentence report, the number of victims, the multiple
probation violations of Petitioner, the fact that these crimes were committed while
on work release from the Lebanon County Correctional Facility, and Petitioner's
14
prior record score. See Commonwealth v, Stone, CP-38-CR-1886-2011, Trial
Court Opinion dated September 10, 2012.
The Superior Court affirmed the sentenceof Petitioner on August 8, 2013.
The Superior Court acknowledged that Petitioner had waived the issue of
reconsideration of sentence by failing to raise it at the trial court level. The Superior
Court went on to state:
However, assuming, arguendo, that [Petitioner] properly presented his
discretionary aspect of sentencing claim in the court below, and thathis
claim raised a substantial question, it still would afford him no relief.
The record reflects that the trial judge was mindful of the sentencing
guidelines, the presentence report, the facts and circumstances of the
multiple crimes, [Petitioner's l extensive previous criminal history, his
current sentences in adjoining counties, his drug problems and his need
for stabilization. In addition, the record reflects the court's
consideration of"the protection of the public, the gravity of the offense
as it relates to the impact on the life of the victim and the community,
and the rehabilitative needs of the defendant." 42 Pa.C.S.A § 9721.
The terms of the sentence clearly rested within the discretionary power
afforded to the trial court and, on this record, there would be no basis
for the Court to conclude that the sentence was "clearly unreasonable."
Commonwealth v. Stone, 1301 MDA 2012 Superior Court Opinion dated 8/8/2013
at p 9 (citing 42 Pa.C.S.A. § 9781(c)(2)). The Superior Court concluded that, after
"an independent evaluation of the record in this case" Petitioner's appeal "is wholly
,. frivolous." Id, at p 10.
At Sentencing this Court noted that the guideline ranges for the offenses called
for "[ forty-seven (4 7) years] and seven months to five hundred seventeen ( 517)
years." (Sentencing Transcript at pp 8 ( error in transcript, it says twenty-seven (27)
years)) This Court finds that even though Plea Counsel failed to file Post-Sentence
Motions to this Court raising the issue of Reconsideration of Sentence, Petitioner
was not prejudiced by this failure.
15
b. Withdraw of Guilty Plea.
Petitioner alleges that he requested Plea Counsel withdraw his plea before he
was sentenced in this matter. The notes of testimony in the Sentencing Transcript
belie this allegation. Petitioner spoke at sentencingand acknowledged that he was
going to have to spend time in jail. Petitioner said nothing about withdrawing his
guilty plea when he spoke on his own behalf to this Court. Petitioner's father also
failed to raise the issue with this Court at the time of sentencing. See Sentencing
"I'ranscript dated July 13, 2012.
The Rules of Criminal Procedure allow "at any time before the imposition of
sentence, the court may, in its discretion, permit, upon motion of the defendant, or
direct, sua sponte, the withdrawal of a plea of guilty or nolo contendere and the
substitution of a plea of not guilty." Pa.R'Crim.P. 591(a). However, "there is no
'absolute right to withdraw a guilty plea.'.' Commonwealth v .. Unangst, 71 A.3d c-.
1017, 1020 (Pa.Super. 2013) (citing Commonwealth v. Flick, 802 A.2d 620, 623
(Pa.Super. 2002); Commonwealth v. Forbes, 450 Pa. 185, 190 (1973)). "The
decision to grant such a motion lies within the sound discretion of the trial court."
Commonwealth v. Muhammed, 794 A.2d 378, 382 (Pa.Super. 2002) (citing
Commonwealth v. Hutchins, 683 A/2d 674, 675 (Pa.Super. 1996)). "If the trial
court finds 'any fair and just reason,' withdrawal of the plea before sentence should
.be freely permitted, unless the prosecution has been 'substantially prejudiced."'
Commonwealth v. Forbes, 450 Pa. 185, 191 (1973) (internal citations omitted).
This is commonly referred to as the "two prong test."
"The standard for withdrawal of a guilty plea after imposition of sentence is
much higher; a 'showing of prejudice on the order of manifest injustice is required
before withdrawal is properly justified." Muhammed, 794 A.2d 378, 383
(Pa.Super. 2002) (citing Commonwealth v, Carpenter, 555 Pa. 434, 454 (1999);
Commonwealth v. Shaffer, 498 Pa. 342, 346 (1982)). "A plea rises to the level of
16
manifest injustice when it is entered into involuntarily, unknowingly, or
unintelligently." Commonwealth v, Stork, 737 A.2d 789, 790 (Pa.Super. 1999)
(citing Commonwealth v. Kephart, 406 Pa.Super 321 (1991)).
Once a defendant has entered a plea of guilty, it is presumed that he was
aware of what he was doing, and the burden of proving involuntariness
is upon him. Therefore, where the record clearly demonstrates that a
guilty plea colloquy was conducted, during which it became evident
that the defendant understood the nature of the charges against him.the
voluntariness of the plea is established. A defendant is bound by the
statements he makes during his plea colloquy, and may not assert
grounds for withdrawing the plea that contradict statements he made
when he pled.
Commonwealth v. Stork, 737 A.2d 789, 790-91 (Pa.Super. 1999) (internal citations
omitted).
A showing of manifest injustice is required after imposition of sentence
since, at this the stage of the proceeding permitting the liberal standard
enunciated in Forbes might encourage entrance of a plea as a
'sentencing testing device.' We note that disappointment by a defendant
in the sentence actually imposed does not represent manifest injustice.
Muhammed, 794 A.2d at 383 (internal citations omitted).
A court "must examine the guilty plea colloquy." Id. at 383.
The colloquy must inquire into the following areas: 1) the nature of the
charges; 2) the factual basis of the plea; 3) the right to trial by jury; 4)
the presumption of innocence; 5) the permissible range of sentences;
and 6) the judge's authority to depart from any recommended sentence.
This Court evaluates the adequacy of the guilty plea colloquy and the
voluntariness of the resulting plea by examining the totality of the
circumstances surrounding the entry of that plea.
Id. at 383-84 (internal citations omitted).
As previously noted, the Court is without the benefit of a transcript of the
Guilty Plea Colloquy in this case. However, this Court habitually goes over the
following oral colloquy with each individual that enters a plea before him:
17
(Name of Defendant), you (your attorney) have (has) indicated that you
desire to enter a plea of guilty to (some of) the chargers) filed against
you. We have your written guilty plea which has been marked at
Exhibit 1.
Before I accept your written plea there are some additional
questions, some of them repeating written ones, I want to ask you:
1. Do you read, write, and understand the English language?
If the answer to No. 1 was "no":
a. Was each question on the written statement translated and explained
to you in a language you do understand?
b. Do you understand my questions of you through the interpreter?
2. Have you read the Information listing the charges in your case?
a. Attorney( s) give factual scenario
b. Do you understand the charges?
c. Are you pleading guilty because you did that (those) act(s)?
3. Do you understand that if your plea of guilty is accepted for the
charge(s), you could be sentenced by the Court to the maximum
penalties set forth in the Criminal Information and the plea colloquy?
4. If it is an open plea, explain that the sentencing judge will listen to what
both the Commonwealth and the Defense have to say, then the
sentencing judge will have three options:
a. Defendant could be sentenced to Probation. If Defendant is
sentenced to probation and violates the terms of probation, he will be
brought back before the Court and the sentencing judge could sentence
him up to the maximum sentence allowed by law.
b. Defendant could be sentenced to a term of incarceration in the
Lebanon County Correctional Facility; or
c. Defendant could be sentenced to a term of incarceration in a State
Correctional Facility.
d. The sentencing judge will determine if the sentences will run
concurrently or consecutively.
5. If there is a plea agreement:
a. Do you understand that the plea agreement entered by yourself, your
attorney, and the District Attorney is that at the time of sentencing the
District Attorney will recommend the Court impose the following
sentence: (sentence)?
b. Do you understand that the Court is not bound by that agreement but
if it is not accepted you would be permitted to withdraw you plea at
anytime prior to sentencing?
18
6. I have some questions about the written guilty plea before it was
presented as Exhibit 1:
a. Did you have enough time to review that written guilty plea before it
was presented to the Court?
b. Did you understand all of the questions which were set forth?
c: Are those your initials on the bottom of each page?
d. Is that your signature on the last page?
7. Do you realize that if you are not a U.S. citizen this plea of guilty could
cause you to be deported?
8. Do you at this time, have any questions you'd like to ask of your
attorney, the District Attorney, or the Court?
9. You are represented by Counsel. Have you discussed your case fully
with Counsel and explained everything you know about it to him/her?
10. Are you satisfied with your attorney and· the way you have been
represented?
11. Knowing all of the things that we have discussed, do you still wish to
enter a plea of guilty to the charge(s) as they are presented?
Very well. The Court finds that your decision to plead guilty is freely,
voluntarily, and intelligently made and that you have had the advice of
a competent attorney with whom you say you are satisfied.
Consequently, we direct that the plea be entered in writing on the
reverse side of the Information, and order a presentence investigation
report to be filed with this Court prior to the imposition of sentence.
Sentencing in this matter shall be set for ( date of sentencing given).
Ora! Colloquy of the Undersigned Judge.
This Court requires that every defendant entering a plea of guilty make an
admission to the factual basis offered by the Commonwealth. This Court has defense
counsel recite the facts alleged in the Criminal Information to each defendant and
asks if those facts are the facts to which the defendant is admitting. This Court will
not accept a guilty plea from any defendant that denies committing the acts alleged
in the Criminal Information as these are the basis of the criminal charges to which
the defendant is pleading guilty. (See Hearing Transcript at pp 24-52)
In this case, Att. Buchanio testified that he took a guilty plea colloquy draft to
Petitioner and had him read it. (Hearing Transcript at p 80) Art. Buchanio filled in
19
the answers to the written guilty plea colloquy later on a computer basing the
answers on the discussion he had with Petitioner. (Hearing Transcript at p 91) While
this Court does not approve of the manner in which the written colloquy was filled
out, we are satisfied that Plea Counsel had Petitioner review the colloquy and
answered all of the questions appropriately, except for question eighteen (18).5 The
written guilty plea colloquy showed that Petitioner understood the charges against
him and what he was doing by entering an open guilty plea. Petitioner specifically
answered the question of voluntariness in the affirmative on the written colloquy.
This Court would never have allowed Petitioner to enter a guilty plea if Petitioner
had made any statements alleging that his plea was anything other than his own
decision free of threats, coercion, or force by any person. Petitioner has not alleged
any facts which would amount to a 'fair and just reason' for withdrawal of his guilty
plea prior to sentencing. This Court would not have granted Petitioner's request to
withdrawal his plea prior to sentencing without such a reason. Petitioner has also
not alleged any· facts which would amount to 'manifest injustice' which would
require the Court to allow Petitioner to withdrawal his guilty plea after the
imposition of sentence. This Court finds that any request to withdrawal his guilty
plea after the imposition of sentence in this matter would have been an attempt to
test the sentencing.
This is not the first time that Petitioner has entered a plea. Petitioner entered
a nolo contendere plea in Lebanon County on January 27, 2010. The written plea
colloquy which Petitioner filled out in that matter is identical to the guilty plea
colloquy initialed and signed by Petitioner in this matter. Petitioner also entered
guilty pleas in two (2) other counties on similar charges prior to entering his plea in
5 This will be discussed in detail below.
20
this matter. Petitioner is well aware of the contents of the written colloquy form and
had ample opportunity to seek guidance and advice prior to entering this plea.
Petitioner voluntarily entered an open plea. Petitioner spoke at sentencing and
failed to make any mention of a desire to withdraw his plea. Petitioner's father also
spoke at sentencing and failed to mention any desire of Petitioner to withdraw his
plea. This Court finds that Petitioner did not make a request of Plea Counsel to
withdrawal his plea prior to sentencing. This Court finds that any request to
' withdraw Petitioner's guilty plea after the imposition of sentence would have been
denied for failure to show manifest injustice.
B. Violations of Due Process Rights
Petitioner's final claim is that his due process rights were violated when the
, Commonwealth breached their initial agreement with Petitioner. Petitioner alleges
that the DA and Sgt. Hopkins promised that he would be placed in a drug
rehabilitation program in exchange for cooperating with the police investigation.
Petitioner alleges that he was represented by Attorney Susan Pickford (herein Att.
Pickford) during the initial interrogation when this promise was made to him. The
Crossroads Program is a three (3}year drug and alcohol treatment program. In order
to be eligible for the program, a person must not be serving a long-term sentence of
I
incarceration, to be considered. The Program can be part of a sentence in cases
where the defendant will be serving a short term of incarceration or is sentenced to
probation.
Petitioner testified at the Hearing that Att. Ditzler and Sgt. Hopkins wanted
him to cooperate with the investigation. (Hearing Transcript at p 7) Att. Ditzler and
Sgt. Hopkins testified that Petitioner had reached out to them offering information
relevant to the investigation; they did not seek him out. (Hearing Transcript at pp
62, 65) Att. Pickford testified that she was present at the initial interrogation
21
between Petitioner, Att. Ditzler, and Sgt. Hopkins, but that she did not represent him
. in this matter. (Hearing Transcript at pp 72-73) Att. Pickford represented Petitioner
on matters in another county at that time. (Hearing Transcript at p 72)
Att. Pickford testified that she did not recall Att. Ditzler or Sgt. Hopkins
offering Petitioner any deal during the initial interrogation. (Hearing Transcript at p
74) She did recall Petitioner talking about rehabilitation throughout the
interrogation, but was not aware of any promise by the DA or police. (Hearing
Transcript at pp 73-74). She also testified that she had made calls to the DA in order
to determine if such a deal was a possibility. (Hearing Transcript at p 74) Att.
Ditzler testified that he would not have offered Petitioner any deal at that time
because Petitioner had not been charged in this matter. 6 (Hearing Transcript at pp
65) Sgt. Hopkins testified that he may have mentioned that Petitioner's cooperation
'could be considered by the DA to get a· plea deal; but he' did nor-promise-any- · ·., I
particular deal to Petitioner. (Hearing Transcript at p 63) Petitioner testified that
Sgt.· Hopkins had given him a pamphlet for the Crossroads Program. (Hearing
Transcript at p 7) Sgt. Hopkins denied giving Petitioner a pamphlet for the Program .
. (Hearing Transcript at p 63)
Att. Buchanio testified that he was aware that Petitioner was not happy with
the sentence imposed in this matter because Petitioner had been convinced that he
.had been promised a deal that he would be sentenced to the Crossroads Program-in
lieu of jail. (Hearing Transcript at pp 79-80) Att. Buchanio testified that he "made
a real pest" of himself when speaking with Sgt. Hopkins about any potential
promises made to Petitioner. (Hearing Transcript at p 84) Att. Buchanio made
repeated requests of Att. Ditzler to reconsider the plea offer to Petitioner. (Hearing
Transcript at p 80) Att. Ditzler had offered Petitioner twelve (12) years to thirty (30)
6
This Court notes that Petitioner had been charged in neighboring counties at that time, but had not been charged
with related charges in Lebanon County.
22
years and was not willing to make any other offer to Petitioner. (Hearing Transcript
at pp 69, 71) Att. Ditzler read an e-mail that he had sent to Att. Buchanio stating
that he "believe[d] the twelve years [was] a gift." (Hearing Transcript at p 69) He
also read an e-mail from District Attorney Dave Arnold (herein Att. Arnold) to Att.
Buchanio stating that Petitioner had "got a lot of credit with the offer Ditzler made.
Twelve years is not a lot of time for 20-plus burglaries." (Hearing Transcript at p
70) Att. Ditzler and Sgt. Hopkins unequivocally stated that Petitioner was never
promised that he would not go to jail or that he would be sentenced to a drug and
alcohol program in exchange for his cooperation. (Hearing Transcript at pp 61, 63,
65-66)
Plea Counsel testified that he advised Petitioner to accept the plea deal offered
by the DA, but Petitioner was adamant that he wanted to enter an open guilty plea.
(Hearing Transcript at p 76, 83) At sentencing, Plea Counsel stated that Petitioner
was not promised anything in writing, but that Petitioner had tried to help himself
out by cooperating with Sgt. Hopkins. (Sentencing Transcript at pp 7-8) He said he
"would hate to see [Petitioner] go to jail for so long that he doesn't have any spark
when he comes out." (Sentencing Transcript at p 8) Plea Counsel requested that the
Court "let him have the opportunity to serve some of his time concurrently, and not
just with the other charges that are grouped together in Lebanon County, but with
the charges for which he has already been sentenced in Lancaster County."
(Sentencing Transcript at p 9)
Petitioner's father (herein Father) also spoke at sentencing. Father stated that
Petitioner had been a different person when he was taking drugs. (Sentencing
Transcript at p 10) He also stated that Petitioner had a lot of family support.
(Sentencing Transcript at pp 10-11) He specifically said, "I think if Jon gets
sentenced where after a number [ of] years he can come out, he will be a benefit to
our society. If he could go into programs he can be productive." (Sentencing
23
Transcript at p 11) He went on to say, "I do plan to support him when he comes out
of prison, if I'm able." (Sentencing Transcript at pp 11-12)
Petitioner himself spoke at his sentencing stating:
I went to a police officer who I trusted, [Sgt.] Hopkins. He came out
several times and talked to me about this. He came out to the prison.
We talked for a while. He said if I was to show them and tell them
everything I did in Lebanon County, he would try to get me into the
Crossroads Program. [Sgt.] Hopkins even went as far as getting me
pamphlets and sent them to meinto [sic] the prison. I understood the
Crossroads Program was a long-term program. I did everything,
absolutely everything I was supposed to do that they asked me to do.
(Sentencing Transcript at pp 13-14) Petitioner went on to say, "I did all of this. I
know I screwed up. I do not contest the fact that I need to serve jail time. I'm -- I'm
hoping that you take that into consideration and give me a concurrent sentence to the
sentence I already have, and not make it a maximum sentence, but what you deem
to be fair and necessary. I know -- I talked to a lot of guys about state prison and a
lot of programs that are offered there. I plan on taking part in everything that I can."
(Sentencing Transcript at p 14 (emphasis added))
Petitioner also corrected his answer to question eighteen on the written guilty
plea colloquy at the time he entered his plea. Question eighteen (18) reads: Other
than any plea. agreement that has been negotiated for you and/or any
recommendation by the Commonwealth, have any promises been made to you to
persuade you to enter a plea of guilty? The answer "yes" was marked by a computer,
as Plea Counsel testified he had marked the colloquy. However, this Court caught
that answer and asked Petitioner if this answer was correct or ifhe wanted to change
the answer to "no." This Court would not have accepted Petitioner's guilty plea if
Petitioner had said .the answer "yes" was the correct answer since Petitioner was
entering an open plea. Petitioner changed the answer to "no" and initialed the
24
correction. At the time of the guilty plea, Petitioner would have been given time to
discuss this question with Plea Counsel if needed.
At sentencing, this Court noted that Petitioner had made complaints to a
newspaper complaining about the Lebanon County Probation Department and how
they do not do their jobs; that Petitioner had complained about the Lebanon County
Police Department, including a letter from Petitioner stating that Sgt. Hopkins was
out to get him; and various other complaints about the probation and police involved
in this and his other criminal cases. (Sentencing Transcript at p 20-21) This Court
made note that the offenses with which Petitioner had been charged carried an
aggregate range of forty-seven (4 7) years and seven (7) months to five hundred
seventeen (517) years' incarceration. (Sentencing Transcript at p 8 (error in
transcript, says 27 instead of 47)) Based on Petitioner's behavior and complaints up
to the time of sentencing this Court stated: "I am sure that after I sentence you today
as soon as you walk outside that door I will be the problem. You will write letters.
You will say whatever you want to your attorney. You'll complain about the time
that you are going to be given here. I have no doubt about that." (Sentencing
Transcript at p 21)
Petitioner was well aware of the fact that he was entering an open guilty plea.
This means that the Commonwealth was not agreeing to make any recommendation
to the Court for a particular sentence. Petitioner signed and initialed the written
guilty plea colloquy stating that he had not been promised anything in return for his
· plea of guilty. Petitioner also answered the questions of this Court in a manner that
would have affirmed those answers, or this Court would not have accepted his plea.
Plea Counsel testified that he was not aware of any offer by the Commonwealth for
drug and alcohol treatment in lieu of jail. time. Att. Ditzler testified that no offer was
made to Petitioner other than for twelve (12) to thirty (30) years. Sgt. Hopkins
testified that he may have mentioned Crossroads in response to a question from
25
Petitioner, but that he did not promise Petitioner any deal in exchange for his
cooperation. An e-mail from Att. Arnold noted that he was not willing to give
Petitioner any more consideration for his cooperation than was reflected in the
original .plea offer. Further, at the time of sentencing Plea Counsel, Father, and
Petitioner acknowledged that Petitioner would be sentenced to some jail time. -
Based on the above, this Court finds that Petitioner has not established that he
was offered a deal for Crossroads in lieu of jail time. This Court further finds:
Petitioner was aware at the time of sentencing that he would be sentenced to a term
of incarceration on these charges, as was his father. The Commonwealth never
offered Petitioner a deal to be sentenced to drug and alcohol treatment, at Crossroads
or elsewhere, in lieu of jail time in exchange for his cooperation. Thus, Petitioner's
claim of a due process violation is lacks merit.
IV. CONCLUSION
For the reasons set forth above, this Court finds that Petitioner has not met his
burden in proving any of his asserted claims. Therefore, Petitioner's Petition for
Post-Conviction Relief is denied. An Order will be entered consistent with the
foregoing.
26