Commonwealth v. Stone

MEMORANDUM BY SHOGAN, J.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

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.:

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
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 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.

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
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 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, 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.

The parties are directed to attach a copy of that opinion in the event of further proceedings in this matter.

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.

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 a finding of waiver whenever an appellant fails to raise an issue in a court-ordered Pa.R.A.P. 1925(b) statement").

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 petitioner's issues that could have been raised on direct appeal but were not, are waived under 42 Pa.C.S. § 9544(b)).

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. --------

Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 8/1/2016

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