Com. v. Currie, R. ( 2019 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RICHARD PHILIP CURRIE :
:
Appellant : No. 2226 EDA 2018
Appeal from the PCRA Order Entered June 7, 2018
In the Court of Common Pleas of Monroe County Criminal Division at
No(s): CP-45-CR-0000794-2016
BEFORE: OTT, J., DUBOW, J., and STRASSBURGER, J.*
MEMORANDUM BY DUBOW, J.: FILED FEBRUARY 25, 2019
Appellant, Richard Philip Currie, appeals pro se from the June 7, 2018
Order entered in the Monroe Count Court of Common Pleas granting in part
and denying in part his first Petition filed pursuant to the Post Conviction Relief
Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546. We affirm.
On November 2, 2016, Appellant entered into a negotiated guilty plea
to two counts of Aggravated Assault, and one count each of Unlawful
Restraint/Serious Bodily Injury, Terroristic Threats with Intent to Terrorize
Another, and Indecent Assault without Consent of Other, arising from a
January 28, 2016 domestic violence incident.1, 2
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1 18 Pa.C.S. §§ 2702(a)(1); 2702(a)(3); 2902(a)(1); 2706(a)(1); and 3126
(a)(2), respectively.
2 As part of the negotiated plea, the parties agreed that Appellant’s
registration period under the Sexual Offender Registration and Notification Act
(“SORNA”) would be 15 years. See, e.g., N.T Guilty Plea, 11/1/16, at 14.
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* Retired Senior Judge assigned to the Superior Court.
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On January 17, 2017, the court sentenced Appellant to an aggregate
sentence of 36 to 84 months’ incarceration. Appellant’s Indecent Assault
conviction classified him as a Tier II sexual offender, which carries a 25-year
registration and reporting requirements under the Sexual Offender
Registration and Notification Act (“SORNA”).3
On January 27, 2017, Appellant filed a Post-Sentence Motion challenging
the discretionary aspects of his sentence. The trial court denied Appellant’s
Motion on March 1, 2017. Appellant did not file a motion to withdraw his guilty
plea or a direct appeal from his Judgment of Sentence.4
On August 3, 2017, Appellant filed the instant, counselled PCRA
Petition.5 In his Petition, Appellant claimed that his plea counsel had been
ineffective for failing to (1) communicate with him, (2) investigate Appellant’s
case diligently, (3) investigate Appellant’s mental health, and (4) advise
Appellant that he would be sentenced to state prison. He also alleged that
counsel inaccurately advised him that he would have only a 15-year
registration requirement under SORNA. Appellant concluded that, as a result
of counsel’s failures, Appellant entered into an unknowing guilty plea. See
Petition, 8/3/17, at ¶¶ 9-18.
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3 See 42 Pa.C.S. §§ 9799.14(c)(1.3); 9799.15(a)(2).
4Brett J. Riegel, Esquire, represented Appellant through the denial of his Post-
Sentence Motion.
5Ashley G. Zimmerman, Esquire, filed Appellant’s PCRA Petition and entered
her appearance on August 28, 2017.
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On October 16, 2017, retained counsel filed a Motion to Withdraw
Appearance, which she then withdrew on November 7, 2017. On January 17,
2018, the PCRA court held a hearing on Appellant’s Petition at which Appellant
and his plea counsel testified.
At the conclusion of the hearing, the court directed the parties’ to brief
the issues. In his Brief, Appellant addressed one issue—whether his counsel
and the Commonwealth had induced him into pleading guilty on the false
representation that he would be subject only to a 15-year SORNA registration
period. He emphasized that, at the time he entered his guilty plea, his counsel
had advised him, and both the Commonwealth and the court stated on the
record, that he would be subject to a 15-year SORNA registration period. See
N.T. Guilty Plea Hearing, 11/1/16, at 14.
On June 6, 2018, the court entered an Order granting in part and
denying in part Appellant’s PCRA Petition. In particular, the court denied
Appellant’s claim that his plea counsel had been generally ineffective.
However, the court found that Appellant had entered into his guilty plea with
the understanding that he would be subject to a 15-year reporting
requirement under SORNA as negotiated between plea counsel and the
Commonwealth. Opinion, 6/6/18, at 15-16. The court concluded that to
subject Appellant to the statutory 25-year registration period “would be
denying [Appellant] the ‘benefit of his bargain’ and may be construed as
unknowing or involuntarily plea.” Id. at 16. Thus, the court ordered that
Appellant register as a Tier I sexual offender subject to a 15-year reporting
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requirement. In so doing, the court “fashion[ed] a remedy which [allowed
Appellant] to keep the benefit of his bargain.” Id.
On June 29, 2018, PCRA counsel re-filed her Motion to Withdraw as
Counsel.
On July 5, 2018, Appellant filed a pro se Notice of Appeal and Motion to
Proceed Pro Se.6 On July 27, 2018, the PCRA court held a hearing pursuant
to Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998). Following the
Grazier hearing, the court permitted counsel to withdraw and Appellant to
proceed pro se.
Appellant raises the following three issues on appeal:
1. Plea counsel was constitutionally ineffective when he
misrepresented the consequences attached to [] Appellant’s
guilty plea facilitating entry of an unknowing, involuntary, or
intelligent plea.
2. Counsel abandoned his trial strategy by concentrating an effort
to coerce [] Appellant to enter into a guilty plea.
3. Prejudice should be cumulated due to counsel’s multiple
instances of argumental negligence.
Appellant’s Brief at 4.
Standard/Scope of Review
We review the denial of a PCRA Petition to determine whether the record
supports the PCRA court’s findings and whether its order is otherwise free of
legal error. Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014). This
Court grants great deference to the findings of the PCRA court if the record
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6 Both Appellant and the PCRA court complied with Pa.R.A.P. 1925.
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supports them. Commonwealth v. Boyd, 923 A.2d 513, 515 (Pa. Super.
2007). We give no such deference, however, to the court’s legal conclusions.
Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012).
Ineffective Assistance of Counsel
The law presumes counsel has rendered effective assistance.
Commonwealth v. Rivera, 10 A.3d 1276, 1279 (Pa. Super. 2010). “[T]he
burden of demonstrating ineffectiveness rests on [A]ppellant.” Id. To satisfy
this burden, Appellant must plead and prove by a preponderance of the
evidence that: “(1) his underlying claim is of arguable merit; (2) the particular
course of conduct pursued by counsel did not have some reasonable basis
designed to effectuate his interests; and, (3) but for counsel’s ineffectiveness,
there is a reasonable probability that the outcome of the challenged
proceeding would have been different.” Commonwealth v. Fulton, 830 A.2d
567, 572 (Pa. 2003). Failure to satisfy any prong of the test will result in
rejection of the appellant’s ineffective assistance of counsel claim.
Commonwealth v. Jones, 811 A.2d 994, 1002 (Pa. 2002).
In his first issue, Appellant claims that his plea counsel was ineffective
because he failed to advise Appellant that the Indecent Assault charge to
which Appellant pleaded guilty carried with it a 25-year SORNA registration
period. Appellant’s Brief at 14. He avers that, consequently, he entered his
plea unintelligently and he should be permitted to withdraw it. Id. at 20.
“[A] plea of guilty will not be deemed invalid if the circumstances
surrounding the entry of the plea disclose that the defendant had a full
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understanding of the nature and consequences of his plea and that he
knowingly and voluntarily decided to enter the plea.” Commonwealth v.
Fluharty, 632 A.2d 312, 315 (Pa. Super. 1993). “Our law presumes that a
defendant who enters a guilty plea was aware of what he was doing. He bears
the burden of proving otherwise.” Commonwealth v. Pollard, 832 A.2d
517, 523 (Pa. Super. 2003) (internal citation omitted). The entry of a
negotiated plea is a “strong indicator” of the voluntariness of the plea.
Commonwealth v. Myers, 642 A.2d 1103, 1106 (Pa. Super. 1994).
The PCRA court considered this claim and concluded that Appellant
knowingly and voluntarily entered his guilty plea. PCRA Ct. Op., 6/7/17, at
12. The court found that the record demonstrated that Appellant “knew and
understood the nature of the charges and he represented to the [c]ourt that
it was his decision to enter into the guilty plea.” Id.
Our review of the record indicates that, at the time Appellant entered
his guilty plea, the court conducted a lengthy and thorough colloquy, which
evidenced, inter alia, Appellant’s understanding of the charges to which he
was entering guilty pleas, the sentences he faced, and, significantly, that he
would be subject to a registration period as a sexual offender pursuant to
SORNA. N.T. Guilty Plea, 11/1/16, at 4-10, 11-14.
To the extent that Appellant’s challenge is based specifically on the 25-
year reporting requirement, it is moot. In partially granting PCRA relief, the
PCRA court concluded that Appellant had reasonably relied on the
representations of his counsel and the Commonwealth regarding a 15-year
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SORNA registration period when he entered his guilty plea. The court, thus,
ordered that Appellant register as a Tier I sexual offender subject to a 15-year
SORNA registration period in order for Appellant to obtain the benefit of his
bargain.
In his second issue, Appellant claims that his plea counsel was
ineffective because “counsel abandoned his trial strategy long before []
Appellant made the decision to plead guilty.” Appellant’s Brief at 23.
Appellant asserts that his counsel’s (1) admission that he “finely tuned”
Appellant’s plea; (2) representation at Appellant’s PCRA hearing that he
served witness subpoenas, which Appellant alleges his case file contradicts;
and (3) failure to interview and prepare witnesses, indicate counsel’s intent to
induce Appellant into waiving his constitutional rights for counsel’s benefit.
Id. at 24-25.
In determining that Appellant’s plea counsel had rendered effective
assistance, the PCRA court noted that counsel testified credibly that he had
communicated with Appellant throughout the pre-trial process, met with
Appellant prior to the preliminary hearing, and filed an omnibus pretrial
motion. PCRA Ct. Op. at 6. The court also found credible counsel’s testimony
that he had reviewed potential mitigating factors with Appellant, including his
mental health issues, his veteran status, and his alcoholism; conducted
discovery; discussed with Appellant the applicable guidelines sentence ranges;
and reviewed many plea offers that the Commonwealth presented with
Appellant. Id. at 6-7.
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There is nothing in the record to substantiate Appellant’s bald accusation
that counsel had an alleged self-serving motivation for presenting the
Commonwealth’s plea offers to him. Likewise, nothing in the record
undermines the court’s conclusion that counsel credibly testified that he
diligently represented Appellant. Our review of the record, in fact, confirms
the PCRA court’s conclusion that counsel rendered effective assistance in
representing Appellant. This second ineffectiveness claim, thus, fails to garner
relief.
In his final issue, Appellant claims that, even if this Court concludes that
his first two issues lack merit, when the two issues are considered together
they rise to a level of prejudice that warrants relief. Appellant’s Brief at 36
citing Commonwealth v. Johnson, 966 A.2d 523, 532 (Pa. 2009)
(explaining that “if multiple instances of deficient performance are found, the
assessment of prejudice properly may be premised upon cumulation.”). We
disagree.
As noted above, Appellant failed to identify “multiple instances” of
deficient performance on the part of his counsel. He likewise failed to
demonstrate that his counsel’s performance resulted in any prejudice to him.
Rather, the record established that Appellant entered into his plea knowingly
and intelligently. Moreover, following consideration by the PCRA court, the
court reduced the length of his SORNA registration period in accordance with
the bargain he struck with the Commonwealth. Thus, this claim warrants no
relief.
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Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/25/19
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