Com. v. Edgar, M. ( 2015 )


Menu:
  • J-S05027-15
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA,             :     IN THE SUPERIOR COURT OF
    :          PENNSYLVANIA
    Appellee          :
    :
    v.                            :
    :
    MICHAEL KENNETH EDGAR,                    :
    :
    Appellant         :     No. 1053 WDA 2014
    Appeal from the PCRA Order Entered June 11, 2014,
    In the Court of Common Pleas of Indiana County,
    Criminal Division, at No. CP-32-CR-0001265-2011.
    BEFORE: DONOHUE, SHOGAN, and STABILE, JJ.
    MEMORANDUM BY SHOGAN, J.:                        FILED FEBRUARY 18, 2015
    Michael Kenneth Edgar (“Appellant”) appeals from the order entered
    on June 11, 2014, that denied his petition for relief filed pursuant to the Post
    Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546. We affirm.
    According to the PCRA court’s summary in its opinion to this Court:
    [Appellant’s] conviction stems from events occurring on July 16,
    2011, that led to accusations of sexual assault by his teenage
    daughter.[1]   On April 3, 2012, he entered a plea of nolo
    contendere to Corruption of Minors and on June 13, 2012, was
    sentenced to incarceration of not less than one (1) year less one
    (1) day nor more than two (2) years less one (1) day with credit
    for time served. He was also ordered to pay the costs of
    prosecution of $410.25 and a fine of $500.00. Following his
    1
    The Commonwealth offered the following factual basis: “On July 16,
    2011, at approximately 2100 hours in Indiana Borough at specifically 477
    Oak Street, [Appellant] . . . had taken his daughter’s foot and was rubbing
    his penis with his daughter’s foot. At that time his daughter then woke up
    and then left the couch area.” N.T. (Plea), 4/3/12, at 5.
    J-S05027-15
    release from the Indiana County Jail on January 23, 2013, he
    was placed on probation for three (3) years and ordered to have
    no contact with the victim or her mother. [Appellant] was
    represented at trial by court-appointed counsel . . . and now
    alleges that he was provided with ineffective assistance of
    counsel.
    PCRA Court Opinion, 6/11/14, at 1.
    After serving his term of incarceration and while on probation,
    Appellant filed a pro se PCRA petition on June 13, 2013, asserting his
    innocence and claiming that trial counsel induced him to plead nolo
    contendere.     The PCRA court appointed counsel, who moved for a private
    investigator on September 23, 2013, and filed an amended PCRA petition on
    January 15, 2014. The PCRA court conducted a hearing on May 28, 2014,
    and denied Appellant’s petition on June 11, 2014.        This appeal followed.
    Appellant and the trial court complied with Pa.R.A.P. 1925.
    Appellant presents the following questions for our consideration:
    I.       Whether the PCCRA [sic] [court] abused its discretion
    when it made a finding that defense counsel did not induce
    [Appellant] to plead nolo contendere, even though the
    evidence   showed    that    defense   counsel   informed
    [Appellant] that he would likely receive credit for time
    served and be released.
    II.      Whether the PCCRA [sic] court abused its discretion when
    it made [a] finding that defense counsel was effective
    counsel, even though defense counsel failed to subpoena
    two material witnesses at trial who observed [Appellant]
    and his daughter in good spirits after the alleged criminal
    incident.
    -2-
    J-S05027-15
    III.    Whether the PCCRA [sic] court abused its discretion when
    it made a finding that defense counsel was effective
    counsel, even though defense counsel could have
    presented prescription medication evidence at trial that
    caused [Appellant’s] impotency, rendering the statements
    of the minor child (victim) that [Appellant] had an erection
    to be baseless, showing [Appellant] is innocent.
    IV.     Whether the PCCRA [sic] court abused its discretion when
    it made a finding that defense counsel was effective
    counsel, even though [Appellant] was not made aware by
    defense counsel that his nolo contendre [sic] plea would
    result in a “no contact” order with his daughter.
    Appellant’s Brief at 4 (full capitalization omitted).
    Our standard of review of an order denying PCRA relief is whether the
    record supports the PCRA court’s determination and whether the PCRA
    court’s determination is free of legal error. Commonwealth v. Phillips, 
    31 A.3d 317
    , 319 (Pa. Super. 2011) (citing Commonwealth v. Berry, 
    877 A.2d 479
    , 482 (Pa. Super. 2005)).           The PCRA court’s findings will not be
    disturbed unless there is no support for the findings in the certified record.
    
    Id.
     (citing Commonwealth v. Carr, 
    768 A.2d 1164
    , 1166 (Pa. Super.
    2001)).
    When considering an allegation of ineffective assistance of counsel,
    counsel is presumed to have provided effective representation unless the
    PCRA petitioner pleads and proves that:           (1) the underlying claim is of
    arguable merit; (2) counsel had no reasonable basis for his or her conduct;
    and   (3)    Appellant   was   prejudiced    by   counsel’s   action   or   omission.
    -3-
    J-S05027-15
    Commonwealth v. Pierce, 
    527 A.2d 973
    , 975-976 (Pa. 1987). “In order
    to meet the prejudice prong of the ineffectiveness standard, a defendant
    must show that there is a ‘reasonable probability that but for counsel’s
    unprofessional errors, the result of the proceeding would have been
    different.’” Commonwealth v. Reed, 
    42 A.3d 314
    , 319 (Pa. Super. 2012).
    A claim of ineffective assistance of counsel will fail if the petitioner does not
    meet any of the three prongs.       Commonwealth v. Williams, 
    863 A.2d 505
    , 513 (Pa. 2004).      “The burden of proving ineffectiveness rests with
    Appellant.” Commonwealth v. Rega, 
    933 A.2d 997
    , 1018 (Pa. 2007).
    It is clear that a criminal defendant’s right to effective
    counsel extends to the plea process, as well as during trial.
    However, [a]llegations 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. Where the defendant enters his plea on the
    advice of counsel, the voluntariness of the plea depends on
    whether counsel’s advice was within the range of competence
    demanded of attorneys in criminal cases.
    Commonwealth v. Willis, 
    68 A.3d 997
    , 1001–1002 (Pa. Super. 2013)
    (quoting Commonwealth v. Wah, 
    42 A.3d 335
    , 338 (Pa. Super. 2012)).
    “[T]he law does not require that [the defendant] be pleased with the
    outcome of his decision to enter a plea of guilty: All that is required is that
    [his] decision to plead guilty be knowingly, voluntarily, and intelligently
    made.”    Id. at 1002 (quoting Commonwealth v. Anderson, 
    995 A.2d 1184
    , 1192 (Pa. Super. 2010)).
    -4-
    J-S05027-15
    Appellant first avers that trial counsel was ineffective at trial for
    inducing Appellant to plead nolo contendere with a statement that Appellant
    could be released from custody for time served. Appellant’s Brief at 21–22.
    In response, the Commonwealth asserts that Appellant has failed to
    “acknowledge     or    address   the   necessary    three-prong    showing      for
    ineffectiveness.”     Commonwealths’ Brief at 10.         We acknowledge the
    Commonwealth’s complaint; however, given the fact that the structural
    deficiency of Appellant’s argument does not hamper our review, we choose
    to address the first issue in the interest of judicial economy.           Accord
    Commonwealth v. Long, 
    532 A.2d 853
     (Pa. Super. 1987) (considering
    merits of appellant’s claims despite briefing deficiencies in interest of judicial
    economy).
    In its opinion to this Court, the PCRA court opined that trial counsel:
    fully explained to [Appellant] what a nolo contendere plea
    entailed and while he informed [Appellant] that there was a
    possibility of his release at sentencing, he did not promise that
    this would be the outcome. The [PCRA c]ourt [found trial
    counsel’s] testimony credible as to the information he relayed to
    [Appellant] about his possible sentence.              Additionally,
    [Appellant] signed a plea colloquy listing the maximum sentence
    on April 3, 2012, that states[:] “I am aware of the permissible
    range of sentences and/or fines for the offenses(s) [sic] with
    which I am charged.” At the plea hearing on the same day the
    [PCRA c]ourt explained the meaning and consequences of the
    nolo contendere plea including the possible range of the
    sentence to [Appellant] and he indicated that he understood.
    The [PCRA c]ourt also informed him of his right to the alternative
    of going to trial and [Appellant] again indicated that he
    understood. The Court then specifically asked [Appellant] if
    -5-
    J-S05027-15
    [trial counsel] had discussed these consequences and
    alternatives with him and [Appellant] indicated that he had.
    At all times through the plea hearing, [Appellant] indicated
    that he understood the consequences of his plea and that his
    decision was voluntary.        Accepting Counsel’s testimony as
    credible, the [PCRA c]ourt [did] not find any indication that he
    was ineffective in explaining the consequences of the plea to
    [Appellant]. [Defense counsel] explained the possible scenarios
    that could result from [Appellant’s] charges including
    incarceration in a state penitentiary for a felony conviction as
    well as his possible release at sentencing. As defense counsel
    for [Appellant], [trial counsel] had a responsibility to explain
    these possibilities in order to fully inform his client.
    PCRA Court Opinion, 6/11/14, at 5–6.
    Our review of the record reveals support for the PCRA court’s findings
    and conclusion.   Trial counsel testified that he did not induce Appellant’s
    decision to plead nolo contendere. N.T. (PCRA), 5/28/14, at 64–65. On the
    contrary, trial counsel continued:
    I did and in absolute certain terms explained to [Appellant] what
    nolo meant including the sentencing options were the same as if
    it was [sic] a guilty plea. . . . I am certain, a hundred percent
    certain I told him he would get credit for time served . . . . As
    far as he asked me probably 20 or 50 times whether he would
    be getting out on that day and each time I told him I cannot tell
    you that. It is a possibility and I told him it is a possibility but
    there is no way I can tell him that because there is no sentence
    bargain and sentencing is up to the sentencing judge and
    without knowing what is in the judge’s mind I cannot tell him
    that he will be getting out.
    
    Id.
     65–66; see also 
    id.
     at 77–78 (“I am sure I would have told him that it
    is possible that the Judge would find time served sufficient but I told him
    that there was no way I could predict it.”). Notably, when asked on cross-
    -6-
    J-S05027-15
    examination if trial counsel promised or guaranteed Appellant that he was
    getting out of jail, Appellant admitted: “No guarantees . . . the mind set at
    the time was that I just wanted out of jail.” Id. at 55. Additionally, at the
    plea hearing Appellant informed the trial court that he was entering the plea
    “just to avoid the trauma of [his daughter] having to come in here.” N.T.
    (Plea), 4/3/12, at 24. Moreover, the trial court conducted a plea colloquy on
    the record, Appellant completed a written plea colloquy, and Appellant
    stated in open court that he understood the nature of the plea, the
    consequences of the plea, the alternative of a trial, and that his plea was
    knowing and voluntary. Id. at 3–9, 11–24; Colloquy for Plea of Guilty/Nolo
    Contendere, 4/3/12.
    Based on the foregoing evidence of record, we conclude that
    Appellant’s underlying claim that trial counsel induced his nolo contendere
    plea lacks merit.   As the PCRA court observed, “[Trial counsel] cannot be
    considered ineffective because of how [Appellant] used [the sentencing]
    information in deciding to enter a plea.” PCRA Court Opinion, 6/11/14, at 6.
    Thus, the PCRA court did not err in denying Appellant relief on this
    challenge.
    Next, Appellant argues that trial counsel was ineffective because he
    failed to question “two material witnesses who would have testified that
    Appellant and the victim were in good spirits after the alleged sexual
    -7-
    J-S05027-15
    assault.”   Appellant’s Brief at 23.   In response, the Commonwealth posits
    that trial counsel “had a reasonable basis for not investigating them.”
    Commonwealth’s Brief at 13.
    We reiterate the axiomatic principle that, “upon entry of a guilty plea,
    a defendant waives all claims and defenses other than those sounding in the
    jurisdiction of the court, the validity of the plea, and what has been termed
    the ‘legality’ of the sentence imposed.” Commonwealth v. Eisenberg, 
    98 A.3d 1268
    , 1275 (Pa. 2014).         We liberally interpret Appellant’s second
    challenge as suggesting that his plea was involuntary and, therefore, invalid,
    because trial counsel suggested the plea without properly investigating
    potential defense witnesses.
    “With regard to an attorney’s duty to investigate, the Supreme Court
    has noted that the reasonableness of a particular investigation depends upon
    evidence known to counsel, as well as evidence that would cause a
    reasonable attorney to conduct a further investigation.” Willis, 
    68 A.3d at 1002
    .     Furthermore, to satisfy the Pierce test when raising a claim of
    ineffectiveness for the failure to call a potential witness:
    our Supreme Court has instructed that the PCRA petitioner must
    establish that: (1) the witness existed; (2) the witness was
    available to testify for the defense; (3) counsel knew, or should
    have known, of the existence of the witness; (4) the witness was
    willing to testify for the defense; and (5) the absence of the
    testimony of the witness was so prejudicial as to have denied the
    defendant a fair trial.
    -8-
    J-S05027-15
    Commonwealth v. Wantz, 
    84 A.3d 324
    , 331 (Pa. Super. 2014) (citing
    Commonwealth v. Sneed, 
    45 A.3d 1096
    , 1108–1109 (Pa. 2012)).
    Upon review, we note the evidence of record suggests that the two
    witnesses existed, that they were available to testify, that counsel knew or
    should have known of their existence, and that they were willing to testify
    for Appellant. At the PCRA hearing, defense counsel and the Commonwealth
    stipulated that the two witnesses, Gregory Buggs and Don Straughtman,
    observed Appellant and his daughter several days after the alleged incident
    and that neither of them saw any concern, fear, or animosity between
    Appellant and his daughter.    After entry of the stipulation, the witnesses
    were dismissed.   N.T. (PCRA), 5/28/14, at 5–6. Additionally, trial counsel
    acknowledged that, although he did not recall Appellant mentioning the
    names of the two men, he did recall Appellant saying that Appellant and his
    daughter had been seen together amicably after the incident. Id. at 61, 69–
    70.
    Nevertheless, the PCRA court concluded that trial counsel had a
    reasonable basis for not investigating the two witnesses:
    [Trial counsel] testified that [Appellant] might have mentioned
    these individuals and he would have looked into them had the
    decision been made to proceed to trial. [Trial counsel] testified
    that he did contact someone at the Indiana Playhouse where
    [Appellant] and his daughter were preparing for a play. The
    response he received was not one that he believed would be
    favorable to [Appellant] so he did not continue to pursue that
    angle of the investigation. [Trial counsel] additionally testified
    -9-
    J-S05027-15
    that he investigated other claims [Appellant] made about his
    whereabouts and activities he engaged in on various occasions
    and found several inconsistencies in his statements.
    * * *
    The [PCRA c]ourt [found] that [trial counsel’s] investigation was
    reasonable and as a result, he cannot be deemed ineffective.
    [Trial counsel] testified that he met with [Appellant] at the
    Indiana County Jail on more than one occasion and at the last
    meeting [Appellant] indicated that he wished to proceed with the
    trial.   As [trial counsel] was leaving the room, [Appellant]
    summoned him back in and said he had changed his mind and
    wanted to enter a nolo contendere plea. At this point, [trial
    counsel] testified that he would have had ample time to prepare
    for a trial should [Appellant] have chosen that route, but
    because he decided to take the plea instead there was no reason
    to continue trial preparation. Here, the [PCRA c]ourt finds [trial
    counsel’s] actions reasonable in not continuing to prepare a
    defense . . . .
    PCRA Court Opinion, 6/11/14, at 4–5.
    The record supports the PCRA court’s findings with regard to trial
    counsel’s testimony.   N.T. (PCRA), 5/28/14, at 61, 69–70.       Moreover, we
    defer to the PCRA court’s credibility determinations, which favored trial
    counsel’s version of preparing a defense. PCRA Court Opinion, 6/11/14, at
    5. In doing so, we discern no error in the PCRA court’s conclusion that trial
    counsel had a reasonable basis for not investigating the two witnesses,
    namely, Appellant’s decision not to go to trial.       Thus, Appellant is not
    entitled to relief.
    -10-
    J-S05027-15
    Appellant’s third issue challenges trial counsel’s failure to investigate a
    side effect of one of the prescriptions Appellant was taking at the time of the
    incident. Appellant’s Brief at 26. According to Appellant, the Interferon he
    was taking caused erectile dysfunction; therefore, his daughter could not
    have “felt [his] erect penis while she was sleeping.” Id. at 26, 29. Rather,
    Appellant claims, he had a lighter and a cell phone in his jeans pocket, which
    is what his daughter felt. N.T. (PCRA), 5/28/14, at 25.
    We   repeat: “[T]he    reasonableness of a particular        investigation
    depends upon evidence known to counsel, as well as evidence that would
    cause a reasonable attorney to conduct a further investigation.” Willis, 
    68 A.3d at 1002
    .    Here, the PCRA court recounted trial counsel’s testimony
    “that he did check the Physician’s Desk Reference to verify the claim of
    impotence as a side effect.”      PCRA Court Opinion, 6/11/14, at 4; N.T.
    (PCRA), 5/28/14, at 62. Trial counsel further explained as follows:
    I didn’t go further into that. I mean, in this particular case had
    we gone to trial I would definitely assume he would have wanted
    to testify and knowing what I know I probably would have
    advised him to. It would have been a claim that he could make
    and there would be no way to refute that.
    N.T. (PCRA), 5/28/14, at 62–63, 75–76. Based on trial counsel’s testimony,
    the PCRA court concluded that trial counsel did investigate Appellant’s
    medicine-based claim and that trial counsel had a reasonable basis for not
    pursuing the investigation, namely, entry of the nolo contendere plea. PCRA
    -11-
    J-S05027-15
    Court Opinion, 6/11/14, at 4. Our review of the record confirms the PCRA
    court’s findings, and we discern no error in the PCRA court’s conclusion.
    Thus, Appellant’s third claim fails.
    Appellant’s final complaint is that trial counsel failed to inform him that
    entering a nolo contendere plea would result in the continuation of a “no
    contact” order previously imposed as a condition of bail. Appellant’s Brief at
    26. The Commonwealth counters that Appellant “fails to address the Pierce
    ineffectiveness analysis” in his brief and that “[t]he ‘no contact’ order was a
    collateral matter, and, therefore, irrelevant in determining whether defense
    counsel provided ineffective assistance of counsel[.]” Commonwealth’s Brief
    at 14, 15. Again, despite the structural deficiency of Appellant’s argument,
    we shall address his final ineffectiveness claim, noting that the PCRA did not
    address this contention in its opinion to this Court.
    The Commonwealth argues against relief on this issue as follows:
    The “no contact” order was a collateral matter, and,
    therefore, irrelevant in determining whether defense counsel
    provided ineffective assistance of counsel because when
    [Appellant] posted bail he was ordered to not have any contact
    with the victim and that order was still in effect when [Appellant]
    entered the plea.
    Commonwealth’s Brief at 15 (citing N.T. (PCRA), 5/28/14, at 77).
    Upon review, we discern no basis in the record for granting the relief
    Appellant requests.     Despite trial counsel’s recollection that he did not
    discuss the no-contact order with Appellant, Appellant has not established
    -12-
    J-S05027-15
    that trial counsel’s representation was outside the range of competence
    demanded of attorneys in criminal cases.      Willis, 
    68 A.3d at 1002
    .   Trial
    counsel’s negotiations with the prosecutor resulted in a nolle prosequi of
    more serious charges and the case not being designated a Megan’s Law
    case. N.T. (Plea), 4/3/12, at 2–3, 11, 21; N.T. (PCRA), 5/28/14, at 65, 76–
    77.   Trial counsel investigated Appellant’s claims about witnesses and the
    effect of his medication. N.T. (PCRA), 5/28/14, at 60–63. The PCRA court
    deemed credible trial counsel’s testimony that he informed Appellant of
    possible sentencing results but could not tell Appellant what his sentence
    would include because “there is no sentence bargain and sentencing is up to
    the sentencing judge.” N.T. (PCRA), 5/28/14, at 66; PCRA Court Opinion,
    6/11/14, at 5. We will not disturb that credibility determination. Moreover,
    although the no-contact order was still in effect when Appellant entered his
    plea, Appellant repeated several times at the plea hearing that he
    understood the nature of a nolo contendere plea, that he and counsel
    discussed consequences of the plea, and that he did not have any questions.
    N.T. (Plea), 4/3/12, at 65–66, 77–78. Based on the foregoing, we conclude
    Appellant is not entitled to relief.
    Order affirmed.
    -13-
    J-S05027-15
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 2/18/2015
    -14-