Com. v. Lane, K. ( 2019 )

J-S73017-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellee
v.
KYLE EDWARD LANE,
Appellant No. 439 WDA 2018
Appeal from the PCRA Order Entered February 28, 2018
In the Court of Common Pleas of Erie County
Criminal Division at No(s): CP-25-CR-001228-2016
BEFORE: GANTMAN, P.J., BENDER, P.J.E., and OLSON, J.
MEMORANDUM BY BENDER, P.J.E.: FILED JANUARY 30, 2019
Appellant, Kyle Edward Lane, appeals from the post-conviction court’s
order denying his timely-filed petition under the Post Conviction Relief Act
(PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.
We need not reiterate the procedural history and factual background of
this case, as the PCRA court set forth a comprehensive summary of both in its
August 14, 2018 opinion pursuant to Pa.R.A.P. 1925(a). See PCRA Court
Opinion (PCO), 8/14/2018, at 1-3. Presently, Appellant raises two issues for
our review:
A. Whether the lower court erred in failing to find that the plea
proceeding was invalidated in that counsel directly induced
the pleas [sic] by promising that the sentence would run
concurrently with any parole violation hit or in failing to
properly address how the prospective sentence could be
fashioned or applied?
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B. Whether the sentence was illegal in that lab fees and court
costs were improperly imposed upon … Appellant jointly and
severally with his co-defendant wherein all evidence and
documents relating to the materials subject to the lab
analysis only referenced the co-defendant?
Appellant’s Brief at 2 (unnecessary capitalization omitted).
We have reviewed the thorough and well-reasoned opinion issued by
the Honorable Daniel J. Brabender, Jr., of the Court of Common Pleas of Erie
County. We conclude that Judge Brabender’s opinion accurately and
thoroughly disposes of Appellant’s first issue, in which Appellant claims he
unknowingly and involuntarily entered his guilty plea because, in entering the
plea, he relied upon his counsel’s representation that he would receive a
specific sentence. See PCO at 3-8. Accordingly, we adopt Judge Brabender’s
opinion as our own on this issue.
In Appellant’s second issue, he argues that his sentence is illegal
because the sentencing court improperly ordered him to pay laboratory fees
jointly and severally with his co-defendant, where he says “all evidence and
documents relating to the materials subject to the lab analysis only referenced
the co-defendant[.]” Appellant’s Brief at 2 (unnecessary capitalization
omitted). He asserts that he should not have to pay any laboratory fee where
“his name was never found in the trash or even on the lab paperwork.” Id.
at 5.1 He states that the subject of “the … lab paperwork is exclusively the
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1 Appellant does not elaborate on nor cite to anything in the record to
corroborate this claim. However, the PCRA court explains that “[t]he
reference to the trash concerns the averment in the Information that
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co-defendant, … and thus he should be the party liable for the payment of the
lab fees as there is no legal predicate or nexus to [Appellant] relative to the
payment of that fee….” Id.2 We note that the laboratory fees amounted to
$2,354.00. See PCO at 9.
Insofar as Appellant argues that the sentencing court did not have the
authority to require him to pay the laboratory fees, he raises a legality of
sentencing claim. See Commonwealth v. Garzone, 993 A.2d 306, 316 (Pa.
Super. 2010) (recognizing that an argument that the trial court did not have
the authority to impose certain costs presents a legality of sentence claim
whereas a claim that the amount is excessive presents a discretionary aspect
of sentencing claim) (citations omitted). We acknowledge that “[t]he
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[Appellant], directly or by virtue of his complicity with [his] co-defendant…,
transported trash bags of meth production-related waste to the residence of
a third party … to dispose of them.” PCO at 3 n.11 (citation omitted).
According to the affidavit of probable cause, a forensic scientist processed the
contents of this trash. See Affidavit of Probable Cause, 3/17/2016, at 2. We
additionally discern that, although the affidavit of probable cause notes that
“[i]ndicia belonging to [the co-defendant] was found inside the garbage[,]”
see Affidavit of Probable Cause, 3/17/2016, at 2, the Commonwealth advised
the sentencing court that, “[t]here was evidence of [Appellant’s] … purchasing
Sudafed, the same kind that was found in the garbage we recovered.” N.T.
Sentencing, 3/8/2017, at 13; see also Affidavit of Probable Cause at 2
(“[T]wo boxes of Sudafed were found. [Appellant] had purchased the same
type of Sudafed…. Furthermore, a box of Wal-[it]in D 15 count was found in
the trash … which is the same that [Appellant] had purchased at Wal-
Greens….”).
2 Relying on this same reasoning, Appellant claims that he should not have to
pay “any other fines or restitution.” Appellant’s Brief at 5. However, our
review of the sentencing order does not show that the sentencing court
ordered Appellant to pay any other fines or restitution, nor does Appellant
point to where it did. We therefore do not address this argument.
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determination as to whether the trial court imposed an illegal sentence is a
question of law; our standard of review in cases dealing with questions of law
is plenary.” See id. (citations and quotation marks omitted).
Appellant offers no authority demonstrating that his sentence is illegal.
Although neither Appellant, the Commonwealth, nor the PCRA court reference
42 Pa.C.S. § 1725.3, our own research indicates that this statute addresses
the imposition of laboratory fees on defendants. It sets forth, in pertinent
part, the following:
(a) Imposition.--A person who is placed on probation
without verdict pursuant to section 17 of the act of April 14,
1972 (P.L. 233, No. 64),1 known as The Controlled
Substance, Drug, Device and Cosmetic Act, or who receives
Accelerated Rehabilitative Disposition or who pleads guilty
to or nolo contendere to or who is convicted of a crime as
defined in 18 Pa.C.S. § 106 (relating to classes of offenses)
or 75 Pa.C.S. § 1543(b)(1.1) (relating to driving while
operating privilege is suspended or revoked) or 3802
(relating to driving under influence of alcohol or controlled
substance) or 3735 (relating to homicide by vehicle while
driving under influence) or 3735.1 (relating to aggravated
assault while driving under the influence) or 3808(a)(2)
(relating to illegally operating a motor vehicle not equipped
with ignition interlock) or a violation of The Controlled
Substance, Drug, Device and Cosmetic Act shall, in
addition to any fines, penalties or costs, in every case
where laboratory services were required to prosecute
the crime or violation, be sentenced to pay a criminal
laboratory or paramedic user fee which shall include,
but not be limited to, the cost of sending a laboratory
technician or paramedic to court proceedings.
42 Pa.C.S. § 1725.3(a) (emphasis added).
Here, Appellant pled guilty to a violation of The Controlled Substance,
Drug, Device and Cosmetic Act, namely possessing phenylpropanolamine,
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phenyl acetone, methylamine, ammonium sulfate, ammonium nitrate, phenyl
acetic acid or a precursor substance with intent to unlawfully manufacture a
controlled substance, 35 P.S. § 780-113.1(a)(3). Therefore, under 42 Pa.C.S.
§ 1725.3(a), the sentencing court had the authority to impose on Appellant
the costs of laboratory fees incurred in prosecuting him.
Further, to the extent Appellant disputes the amount of the fee imposed
and the trial court’s finding a connection between him and the trash/lab work,
Appellant contests a discretionary aspect of his sentence. See Garzone,
supra. However, “[c]hallenges to the discretionary aspects of sentencing are
not cognizable under the PCRA.” See Commonwealth v. Fowler, 930 A.2d
586, 593 (Pa. Super. 2007); see also 42 Pa.C.S. § 9543(a)(2) (setting forth
the claims that are cognizable under the PCRA). Moreover, even if cognizable,
we would deem this claim waived because Appellant did not raise it at the
time of sentencing, in a post-sentence motion, or on direct appeal. See 42
Pa.C.S. § 9543(a)(3) (stating that to be eligible for PCRA relief, the petitioner
must demonstrate that the claim was not previously litigated or waived); 42
Pa.C.S. § 9544(b) (directing that “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”); Commonwealth
v. Cartrette, 83 A.3d 1030, 1042 (Pa. Super. 2013) (“[I]ssues challenging
the discretionary aspects of a sentence must be raised in a post-sentence
motion or by presenting the claim to the trial court during the sentencing
proceedings. Absent such efforts, an objection to a discretionary aspect of a
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sentence is waived.”) (citation and internal quotation marks omitted). Thus,
no relief is due.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/30/2019
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Circulated 01/10/2019 12:01 PM
COMMONWEALTH OF PENNSYLVANIA IN THE COURT OF COMMON PLEAS
OF ERIE COUNTY, PENNSYLVANIA
v. CRIMINAL DIVISION
KYLE EDWARD LANE, PETITIONER NO. 1228 of2016
OPINION
The Appellant, Kyle Edward Lane, appeals from the Order of February 28, 2018,
dismissing the pro se Petition for Post Conviction Collateral Relief (PCRA) of June 30, 2017 and
the counseled Supplement to Motion for Post Conviction Collateral Relief of June 29, 2017.
Following a PCRA evidentiary hearing on February 27, 2018, this Court denied the PCRA on
February 28, 2018 for reasons placed on the record at the PCRA hearing. This Opinion is in
response thereto. Because the appeal is without merit, it must be dismissed.
BACKGROUND !--..}
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By Information filed on May 17, 20161 was charged as folJows with regar��J al�e966 A.2d 523, 532 (Pa. 2009).
After a defendant has entered a guilty plea, the only cognizable issues under the PCRA
are the validity of the plea proceedings and the legality of sentence. Thus, allegations of
ineffective assistance of counsel in connection with entry of the guilty plea will serve as a basis
for relief only if the ineffectiveness caused petitioner to enter an involuntary or unknowing plea.
Commonwealth v Rounsley 717 A.2d 57 (Pa. Super. 1998); Commonwealth v. Williams, 437
A.2d 1144 (Pa. 1981).
To establish ineffective assistance of counsel in the guilty plea context, the petitioner
must demonstrate that: "(1) the underlying claim has arguable merit; (2) no reasonable basis
existed for counsel's actions or failure to act; and (3) petitioner suffered prejudice as a result of
counsel's error such that there is a reasonable probability that the result of the proceeding would
have been different absent such error." Commonwealth v. Barndt, 74 A.3d 185, 192 (Pa. Super.
2013) citing Commonwealth v. Reed, 971 A.2d 1216, 1221 (Pa. 2005). The failure to establish
any prong of the test will defeat an ineffectiveness claim. Commonwealth v. Birdsong, 24 A.3d
319, 329 (Pa. 2011). See also, Commonwealth v. Rollins, 738 A.2d 435, 441 (Pa. 1999).
Petitioner's claims lack arguable merit. The plea was knowingly and voluntarily entered.
The record establishes the factual basis for Petitioner's negotiated plea was fully explained to
him. See Transcript of Proceedings, Plea and Sentencing Hearing of March 8, 2017 ("Tr. Plea
and Sentence Hrg. "). p. 8. The possible severity of the sentences Petitioner could receive was
explained to him at the Plea and Sentencing Hearing and in writing. Tr. Plea and Sent. Hrg., p.
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8; Defendant's Statement of Understanding ofRights Prior to Guilty/No Contest Plea at No J 228
of 2016 (" Defendant 's Statement"), ��4, 5. Petitioner was advised that, if there was a plea in his
case, it would be up to the Judge to determine whether or not to accept the plea. Tr. Plea and
Sent. Hrg., p. 4, Defendant's Statement, �6. Petitioner had no questions about the terms of the
plea agreement. Tr. Plea and Sent. Hrg., p. 8. In signing the Statement of Understanding of
Rights, Petitioner acknowledged there had been no other bargain or promise to induce him to
plead guilty to the charges. Defendant's Statement, � 5.
The record at the plea and sentencing hearing confirms Petitioner knew he faced parole
revocation for the instant offense. Petitioner admitted no promises were made about the
upcoming "hit" Petitioner would receive for the revocation. Tr. Plea and Sent. Hrg., pp. 15-16.
The plea bargain did not include negotiated sentences, either for the instant offense or the parole
revocation "hit" Petitioner faced. This was explained to Petitioner on the record at the plea and
sentencing hearing, and in writing. See Plea and Sent. Tr., pp. 4-5; Defendant's Statement, 16.
Petitioner was also advised that if any sentencing recommendations were made on his
behalf, those were merely recommendations and it was up to the Judge to determine whether or
not to accept those sentencing recommendations. Petitioner was informed that if the judge did
not accept any sentencing recommendations, this would not be a basis to later withdraw his plea.
See Plea and Sent. Tr., pp. 4-5; Defendant's Statement, �6.
Petitioner executed the Statement of Understanding of Rights at sentencing, indicating his
understanding of these terms. In signing the Statement of Understanding of Rights, Petitioner
acknowledged there had been no other bargain and no other promise to induce him to plead
guilty to the charges. Defendant's Statement, � 5. The plea colloquy and the exchange with
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Petitioner at sentencing demonstrate Petitioner's guilty plea was entered knowingly, intelligently
and voluntarily.
b. Record at PCRA Evidcntiary Hearim:12
At the PCRA evidentiary hearing, Petitioner and Attorney Barbatos testified. Admitted
in evidence as Commonwealth exhibits were the statement of understanding of rights from the
original guilty plea in December, 2016 which was subsequently withdrawn, and the statement of
understanding of rights from the subject guilty plea. ·
Petitioner testified he is currently serving a state sentence for aggravated assault and
simple assault. Petitioner was represented by Attorney Barbatos for the charges at this docket.
He initially entered a guilty plea in December of 2016 which he withdrew based on the belief his
co-defendant would testify favorably for Petitioner at Petitioner's trial. However, Petitioner
subsequently learned the co-defendant changed his mind, and Petitioner entered the instant guilty
pica in March, 2017. Petitioner testified he believed Barbatos would obtain a sentence of 12 to
24 months concurrent with any probation revocation sentence he faced.
Petitioner admitted Barbatos explained to him the applicable sentencing guidelines;
Barbatos discussed with Petitioner the fact that evidence unfavorable to Petitioner would be
introduced at trial; Petitioner did not protest the sentence at the sentencing hearing; and
Petitioner did not instruct Barbatos to withdraw the guilty plea. Subsequently, Petitioner was
revoked on the other docket for which he was under state supervision and took a one-year "hit."
He lost four years of street time and will reach his new maximum sentence in 2024.
Petitioner admitted he reviewed and signed a Statement of Understanding of Rights for
each guilty plea entered at this docket. In particular, he read or was read Paragraph Nos. 5 and 6
ll At this writing the transcript of proceedings from the PCRA evidentiary hearing of February 27, 2018 has not
been transcribed. However, the proceeding was recorded.
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of the Statements. He understood those paragraphs. He also understood the Judge was not bound
by the terms of any plea agreement.
Attorney Robert Barbatos credibly testified he made no promise to Petitioner about the
sentence he would receive. He denied he informed Petitioner the sentence would run concurrent
with the parole revocation sentence. Instead, Barbatos merely advised Petitioner that Barbatos
would request a sentence in the mitigated range to run concurrent with any parole revocation
sentence. He denied informing Petitioner the Commonwealth made a sentencing
recommendation. Barbatos credibly testified he would never make a guarantee or promise about
any sentence a person would receive. Barbatos testified he informed Petitioner about his last
conversation with the co-defendant and his understanding about the evidence unfavorable to
Petitioner that would be introduced at trial. This information prompted Petitioner's decision to
re-enter a guilty plea.
At the conclusion of the evidentiary hearing, the Court placed on the record findings of
fact and conclusions of law which are incorporated herein by reference. In sum, the Court found
incredible the Petitioner's assertion and testimony that Barbatos promised Petitioner would
receive a specific sentence, including a sentence to run concurrent with any parole revocation
sentence. The Court determined the guilty plea was knowing, intelligent and voluntary; there
was no ineffective assistance of counsel with regard to the guilty plea; and there was no
inducement to enter a guilty plea. The Court determined the guilty plea was valid and the
sentence was legal. The Court denied post conviction relief.
A criminal defendant who elects to plead guilty has a duty to answer questions truthfully.
Commonwwealth v. Vesay, 464 A.2d 1363, 1368 (Pa. Super. 1983). In this case an extensive
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colloquy was conducted in which the Commonwealth clearly explained the possible severity of
the sentences which Petitioner could receive. "We cannot permit a defendant to postpone the
final disposition of his case by lying to the court and later alleging that his lies were induced by
the promises of counsel." Id Disappointed expectations alone do not vitiate guilty pleas. Id,
citing Commonwealth v. Sanutti, 312 A.2d 42 (Pa. 1973).
Petitioner is no stranger to the criminal justice system. See Tr. Plea and Sent. Hr., p. JO.
The record demonstrates Petitioner confirmed under oath at two separate plea hearings he
understood the charge to which he was pleading and the maximum sentence which could be
imposed for the charge. As there is no basis to conclude ineffective assistance of counsel caused
Petitioner to enter an involuntary or unknowing plea of guilty, the ineffectiveness claim is
meritless and must fail. See Commonwealth v. Rathfon, 899 A.2d 365, 369 (Pa. Super. 2006).
2. I1legal Sentence Claim
The illegality of sentence claim concerning imposition of fines and restitution is
meritless. In a negotiated plea, Petitioner pied guilty to one offense, the offense at Count Six.
Petitioner agreed to pay costs. In exchange, the Commonwealth agreed to no/le pros the
remaining nine offenses. The elements of the plea agreement were set out in the Statement of
Understanding of Rights. Prior to entering the plea, Petitioner executed the Statement of
Understanding of Rights after reading and reviewing it. See �5. Defendant's Statement of
Understanding ofRights Prior to Guilty/No Contest Plea, March 8, 2017. Further, at sentencing,
the Commonwealth informed Petitioner on the record that, pursuant to Paragraph 5 of the
Statement of Understanding of Rights, Petitioner would plead guilty to Count 6 and in exchange
the Commonwealth would no/le pros the remaining counts with costs to be imposed on
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Petitioner. Petitioner acknowledged he understood the terms of the plea agreement. Tr. Plea
and Sentence Hrg., p. 8.
At sentencing, the Commonwealth disclosed the lab fee was $21354.00 and requested
imposition of joint and several liability for the lab fee with co-defendant Godfrey. See
Transcript of Proceedings, Plea and Sentencing Hearing of March 8, 2017 ("Tr. Plea and
Sentence Hrg. "), page 15. Petitioner had agreed to pay costs. There was no objection to the
Commonwealth's request for imposition of joint and several liability for the lab fees. At no time
during the sentencing hearing did Petitioner challenge or question the Court's fashioning of the
sentence in this regard. See Tr. Plea and Sentence-Hrg., pp. 15-18. There was no negotiated
sentence. Petitioner failed to demonstrate any impropriety in imposing joint and several liability
for lab fees. The claim is meritless.
CONCLUSION
The claims raised on appeal are meritless and must be dismissed. Upon the filing of the
transcript from the PCRA evidentiary hearing held on February 27, 20181 the Clerk of Courts is
directed to transmit the record to the Superior Court.
BY THE COURT:
Date
cc: The Office of the District Attorney
William J. Hathaway, Esq., PMB # 261, 1903 West Eighth Street, Erie1 PA 16505
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