Com. v. Mandic, D. ( 2022 )

J-S06025-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DANIEL MANDIC :
:
Appellant : No. 1737 EDA 2021
Appeal from the PCRA Order Entered July 30, 2021
In the Court of Common Pleas of Wayne County Criminal Division at
No(s): CP-64-CR-0000224-2018,
CP-64-CR-0000288-2018
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DANIEL MANDIC :
:
Appellant : No. 1738 EDA 2021
Appeal from the PCRA Order Entered July 30, 2021
In the Court of Common Pleas of Wayne County Criminal Division at
No(s): CP-64-CR-0000224-2018,
CP-64-CR-0000288-2018
BEFORE: KUNSELMAN, J., McLAUGHLIN, J., and KING, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED MAY 20, 2022
Daniel Mandic appeals from the order dismissing his amended Post
Conviction Relief Act (“PCRA”) petition. See 42 Pa.C.S.A. §§ 9541-9546.
Mandic argues his trial counsel provided ineffective assistance in connection
with his guilty plea because the factual basis was unclear and Mandic was
unsworn when the factual basis was stated. We affirm.
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While on probation for another matter, Mandic was arrested and charged
with committing new crimes on the two above-listed docket numbers. On the
first, he was charged with two counts, including one count of persons not to
possess firearms and one count of possession of a small amount of marijuana,
related to a gun and drugs probation officers found in Mandic’s bedroom during
a spot check. On the second docket number, Mandic was charged with 20
counts, including five counts of endangering the welfare of children, five
counts of simple assault, five counts of terroristic threats, and five counts of
recklessly endangering another person. These charges arose from allegations
of abuse disclosed by his five children.
On the day of the guilty plea hearing, Mandic completed and signed a
written plea colloquy. Among other things, it stated Mandic understood what
crimes he had been charged with and the elements of those crimes. See
Written Guilty Plea Colloquy, 11/1/18, at 2. It specified that Mandic would be
pleading guilty to count one on the first Information – the firearms charge –
and counts six through ten on the second Information – the simple assault
charges. Id. at 8; see also 18 Pa.C.S.A. §§ 6105(a)(1) and 2701(a)(1),
respectively. The Bill of Information described the assaults as occurring “on or
about or between Sunday, the 1st day of January, 2017 and Sunday, the 31st
day of December, 2017.” Bills of Information, No. CP-64-CR-0000288-2018,
8/6/18, at 2. Each count listed a different one of Mandic’s children as the
victim of simple assault. Id.
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At the guilty plea hearing, the Commonwealth stated the factual basis
for the simple assault charges as follows:
[The Prosecutor]: With regard to Case Number 288, [Mandic] is
the father of 5 minor children, ages 11, 10, 9, and 8[-]year[-] old
twins. During this 2017 calendar year, on more than one occasion,
[Mandic] did hit and or kick and or punch and or choke each of
the [aforementioned] children which did cause bodily injury to
each child.
THE COURT: Is that essentially true, Mr. Mandic?
Mr. MANDIC: Yes.
N.T., 11/1/18, at 5.
Mandic was then sworn in, and the prosecutor administered a guilty plea
colloquy on the record. Mandic acknowledged that he signed the written guilty
plea colloquy, that he was satisfied with his representation, that he had not
been threatened or promised anything, that he was not under the influence of
any drugs or alcohol, and that he understood he was surrendering his rights
to a jury trial and the maximum penalties he might receive for his crimes. Id.
at 5-8. Mandic reaffirmed his desire to plead guilty, and the court admitted
the written colloquy into evidence. Id. at 7-8. The prosecutor stated that
Mandic and his attorney had signed the Bills of Information, indicating the
counts to which Mandic had pleaded guilty. Id. at 8.
At the sentencing hearing, the Commonwealth made the following
argument regarding the incidents of child abuse:
First of all, with regard to Case Number 288, which is the child
abuse case, in [Mandic]’s statement, I was taken aback by his
excuse that this was simply disciplining his children and not abuse.
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I acknowledge that in the law there is a fine line between discipline
and abuse. But what [Mandic] did is so far from that line. I’m going
to read a couple of excerpts for you from the 11, 10, 9, and two
8[-]year[-]old victims on their account of what [Mandic] did to
them. He beat them with a belt. He grabbed the female from the
front of her neck and lifted her off the ground and held her this
way until she stopped struggling. [He] held a knife to the male
child’s [sic], he held a knife to the male child’s throat and
threatened to cut his throat as punishment for taking a piece of
candy. He hit the kids with belt in the face and the head. He
punched them in the stomach. He pushed a child’s head through
the wall. The children were afraid that they were going to die. The
oldest female would help the other children. 11 years old, would
hold ice on their bruises after he beat them. Your Honor, that is
not discipline, that is child abuse. [Mandic] states that his older
two children ended up just fine because he did these things to
them, but then on page number 10 of the pre-sentence
Investigation, it notes he never even met one of his children that
he states ended up just fine because he did this to them.
N.T., 12/20/18, at 5-6.
Mandic’s attorney argued that Mandic has accepted that what he did as
a “course of conduct” with his children in 2017 was perpetrating abuse. Id. at
8. He explained that Mandic had been abusing drugs and alcohol at the time
and had subsequently sought help and tried to rehabilitate himself. Id. at 8-
11. Mandic exercised his right to allocution, stating that he was “way out of
line, with the disciplining and the abuse.” Id. at 11-12.
Prior to imposing sentence, the court acknowledged that it read and was
informed by the pre-sentence investigation report (“PSI”).1 Regarding the
incidents of child abuse, the court made the following comments:
The victims are an 11[-]year[-]old female, a 10[-]year[-]old
female, a 10[-]year[-]old male, an 8[-]year[-]old female, and
____________________________________________
1 The PSI report is not included in the certified record.
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another 8[-]year[-]old female. The alleged abuses ran from
January through December of 2017. 12 months of a nightmare for
these children. And the District Attorney, I guess, stole my
intended references, so I’m not going to repeat them here. But to
threaten to cut off a child’s fingers with a knife because you say
he stole gum. He stole a piece of gum, that’s all it was. And that
as soon as he stole it. And if he stole it[,] it’s probably because he
was starving. You pushed [a child’s] head through a wall. And . .
. the one you held up by the throat, told the officials that she
thought she was going to die. [Another child] disclosed that one
time you had a gun in your hand and you threatened to shoot her
with it. My goodness. There are literally millions of couples out
there that would sacrifice their right arm to have a child. And you,
for at least 12 months, repeatedly, victimized these children. I
don’t think you have any idea how trauma, trauma such as you
subjected your children to, how it can ruin their lives. Ruin them,
through no fault of their own. When I read the account of this
incident, I really got sick. I got sick to my stomach. What in the
world are you thinking? In regards to calling your children
derogatory names, you admit it that you did that and stated it
occurred often. These [sic], a child is a gift. A child is a gift to the
parents. Why, why would you ever want to do this to the gifts you
received? And I emphatically dispute your statement that you
were under the impression this is a form of discipline and not
abuse. Sir, you went through supervision with Wayne County
Children and Youth Services and I presided over that. And your
physical abuse of the children was a matter that was brought to
light during those proceedings. And that predated this by years.
You knew what you were doing was abusing those children. You
said to the officer I love my children. I love my children. I love my
children. I love my child so much I’m going to threaten to cut her
finger off. I love my children so much I’m going to hold her up and
shake her until she stops squirming. I love my children so much
I’m going to threaten her with a gun. There’s something very sick
in your head. Very sick. And you said you love your children but
they’re going to be in trouble one day. Well that last part of your
statement is certainly true. I haven’t followed the recent case and
I don’t know how much trouble they’re in. But having been
exposed to children who are suffering this kind of trauma in other
cases, I’m sure these children are an absolute mess because of
you. You’ve robbed them of so much that they could have had in
life.
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Id. at 13-15.
The trial court sentenced Mandic to 36 to 72 months in prison for the
firearms conviction and five consecutive terms of 11½ to 24 months in prison
for the simple assault convictions. The aggregate sentence was 93½ to 192
months’ imprisonment. Each term was at the upper end of the standard
guidelines range. Mandic filed a post-sentence motion, which the court denied.
On direct appeal, we affirmed the judgment of sentence. Commonwealth v.
Mandic, No. 485 EDA 2019, 2019 WL 6652092, at *4 (Pa.Super. Dec. 6,
2019).
Mandic filed the instant, timely PCRA petition, and the court appointed
counsel, who filed an amended petition. The court held a hearing at which
Mandic and his trial counsel testified.
PCRA counsel argued that at the plea hearing, although Mandic only
pleaded guilty to “five instances of simple assault,” the prosecutor, when
stating the factual basis, “[set] forth a period of time, a calendar year of 2017,
and then [said,] on more than one occasion he did either this or he did that.”
N.T., 3/22/21, at 11. PCRA counsel claimed the factual basis was therefore “a
nebulous statement,” because “more than one occasion . . . can be more than
five occasions,” and “we don’t know on how many occasions” an assault took
place. Id. at 11-12.2
____________________________________________
2Mandic raised other issues before the PCRA court, which he has not pursued
on appeal.
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Trial counsel testified that he did not contest the factual basis for the
guilty pleas because “the assertions of the Commonwealth came within the
parameters of the definition of simple assault. And the agreement was to
accept and enter a plea to those specific simple assault charges.” Id. at 11.
Trial counsel also explained that “in context,” there were five counts of assault
as the counts were “relating to the multiple victims.” Id. at 12.
Trial counsel further testified that in exchange for pleading guilty to five
counts of simple assault and one firearms charge, the Commonwealth agreed
to drop other charges, of which there had been over 20, and agreed not to
object to a defense request for a concurrent sentence. Id. at 8. One of
counsel’s goals had been to have the felony charges dismissed and reduce the
number of counts and sentencing exposure. Id. at 24-25. Trial counsel
explained that to revoke the guilty plea would have resulted in “bringing back
those twenty some odd offenses [which] would be, as I said, a crushing
prosecution.” Id. at 16. He testified that Mandic did not express hesitation
about pleading guilty, and counsel said he would not have recommended
withdrawing the plea, even after sentencing, based on the initial number of
charges Mandic had been facing. Id. at 15-16. He stated the PSI had
recommended the court impose a 50- to 120-month sentence. Id. at 16-17.
Mandic testified that he asked counsel twice to “pull his plea.” Id. at 30.
He stated the first time was “when I got the report of like what they said I
was doing with the kids, and I didn’t feel comfortable pleading to the simple
assaults because with the punching and throwing in the walls and the choking,
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I didn’t do that. And I told him that.” Id. at 30. However, counsel, “put his
hand on my shoulder and said that’s a simple assault. That’s all you’re
pleading to.” Id. He claims he also asked counsel prior to the sentencing
hearing about revoking his guilty plea, but that counsel “told me to relax and
be careful what I say because he didn’t want the Judge to pull my plea. He
said if you want to be home by next Christmas, just trust me.” Id. at 30.
Mandic also stated that when the prosecutor read the factual basis, counsel
“put his hand on me and said I got this, I got this. So, I was waiting for him
to say something, and, the gavel hit, and he didn’t say a word.” Id. at 31.
The PCRA court denied the petition. It found that Mandic “agreed with
the factual allegations as read into the record by [the prosecutor] at the guilty
plea hearing,” and did not express a desire to withdraw his guilty plea prior to
sentencing. PCRA Court Opinion, July 30, 2021, at 2-3. The court found trial
counsel had informed Mandic of the possible sentences he may receive, and
“[n]o evidence was presented that [Mandic] did not knowingly, voluntarily,
and intelligently enter his guilty plea to five (5) counts of Simple Assault.” Id.
at 3.
Mandic appealed. He frames his issues as follows:
1. Is the PCRA Court’s finding that [Mandic] failed to establish
entitlement to relief supported by the record and free of legal
error?
2. Did [Mandic] establish that his plea was entered upon a
defective and unsworn factual basis and was plea counsel
ineffective for failing to object or otherwise challenge the validity
of same?
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Mandic’s Br. at 11 (suggested answers omitted).
Mandic argues that his guilty plea colloquy was defective because he
was not under oath at the time the prosecutor stated the factual basis for the
plea. Mandic’s Br. at 13. Mandic claims he could therefore neither “agree nor
disagree” to the factual basis read by the prosecutor, and “[a]s a result, the
factual basis is a nullity and the plea should be rendered invalid.” Id. at 17.
Mandic further argues that the factual basis for the plea “was not
concretely defined (but rather implied a course of conduct as opposed to five
discrete instances).” Id. at 17. He claims that as a result, “at the time of
sentencing, more instances of abuse/assault (and even other crimes) were
considered over and above that to which [Mandic] had pleaded guilty[.]” Id.
at 12-13; see also id. at 17 (“The Sentencing transcript reveals that the
[c]ourt considered facts and circumstances beyond five (5) incidents of assault
for which [Mandic] accepted responsibility”). Mandic asserts that due to the
unspecific factual basis, given when he was unsworn, his plea was not
knowingly, intelligently, or voluntarily entered, and his plea counsel provided
ineffective assistance in failing to object to the guilty plea or move to withdraw
it either before or after sentencing. Id. at 17-18.
We review the PCRA court’s decision to determine whether it is
“supported by the evidence of record and . . . free of legal error.”
Commonwealth v. Ligon, 206 A.3d 515, 518 (Pa.Super. 2019). We grant
great deference to the PCRA court’s factual findings but apply a de novo
standard of review to the court’s legal conclusions. Commonwealth v. Diaz,
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183 A.3d 417, 421 (Pa.Super. 2018), aff’d, 226 A.3d 995 (Pa. 2020). This
Court is not bound by the rationale of the PCRA court and may affirm its
decision on any basis. Id.A PCRA petitioner advancing a claim of trial counsel ineffectiveness must
plead and prove each of the following:
(1) the underlying legal claim is of arguable merit; (2) counsel’s
action or inaction lacked any objectively reasonable basis
designed to effectuate his client’s interest; and (3) prejudice, to
the effect that there was a reasonable probability of a different
outcome if not for counsel’s error.
Ligon, 206 A.3d at 519. Counsel is presumed to be effective until the
petitioner has proven otherwise. Id.
“Allegations of ineffectiveness in connection with the entry of a guilty
plea will serve as a basis for relief only if the ineffectiveness caused appellant
to enter an involuntary or unknowing plea.” Commonwealth v. Allen, 732
A.2d 582, 587 (Pa. 1999). We may consider the totality of circumstances
surrounding the plea to determine whether this standard is met.
Commonwealth v. Bedell, 954 A.2d 1209, 1212 (Pa.Super. 2008). For a
plea to be voluntary, counsel’s advice in connection with the plea must fall
“within the range of competence demanded of attorneys in criminal cases.”
Id. (citation omitted). For a plea to be knowing, the plea colloquy must
“demonstrate that the defendant understood what the plea connoted and its
consequences.” Id. (citation omitted). A factual basis for the charges is
required in order “to protect a mistaken plea to an offense that is not actually
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implicated by the defendant’s conduct.” Commonwealth v. Flanagan, 854
A.2d 489, 503 (Pa. 2004). Any omission or defect will only invalidate a guilty
plea if the surrounding circumstances do not “disclose that the defendant had
a full 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). A defendant’s disappointment
in the resulting sentence does not evince that a plea was unknowing or
involuntary. Bedell, 954 A.2d at 1212.
We agree with the PCRA court that Mandic has failed to prove that any
ineffectiveness caused him to enter an involuntary or unknowing plea.
Counsel’s advice to plead guilty to five counts of simple assault in exchange
for a reduction in the total number of charges was within the range of
competence demanded of attorneys. Bedell, 954 A.2d at 1212. The
transcripts of the guilty plea hearing and PCRA hearing show that Mandic
understood that he was pleading guilty to five counts of simple assault, and
that in exchange, the Commonwealth would reduce the number of counts and
his overall sentencing exposure. Mandic was also aware of the potential
sentences for these charges.
We are unpersuaded that the factual basis lacked specificity, such that
Mandic did not reasonably understand the facts behind the five counts of
simple assault, or that Mandic did not understand the nature of each count.
The Bills of Information – which Mandic signed, and which were referenced in
the written guilty plea colloquy, which was, in turn, incorporated into the plea
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proceedings – state that each count of simple assault corresponded to a
different victim, and together spanned the entirety of 2017. When stating the
factual basis at the plea hearing, the prosecutor said, “During this 2017
calendar year, on more than one occasion, [Mandic] did hit and or kick and or
punch and or choke each of the [aforementioned] children which did cause
bodily injury to each child.” N.T., 11/1/18, at 5. The prosecutor made it plain
that the five counts did not represent five discrete instances of abuse, but
multiple occasions of abuse of each of five children over the course of a year.
Accordingly, at sentencing, Mandic’s trial counsel aptly described the
assaults as a “course of conduct.” N.T., 12/20/18, at 8. Mandic also testified
before the court at sentencing without denying any of the statements made
by the prosecutor regarding the multiple instances of abuse. Id. at 11-12.
While Mandic testified at the PCRA hearing that he did not commit the assaults
as described in “the report,”3 he stated he nonetheless agreed to plead guilty
because his trial counsel advised he would receive a reduced sentence. N.T.,
3/22/21, at 30. The totality of the circumstances therefore indicate that
Mandic knew and understood that he was pleading to only five counts of simple
assault in order to reduce his sentencing exposure, but that each count
represented multiple instances of abuse. Bedell, 954 A.2d at 1212.
Moreover, we find no merit to Mandic’s argument that his plea was a
nullity because he was unsworn at the time the prosecutor stated the factual
____________________________________________
3 It is unclear from the testimony whether Mandic was disagreeing with the
allegations in the affidavit of probable cause or the PSI.
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basis, or that counsel was ineffective for failing to object or move to withdraw
the plea on that basis. Had Mandic’s trial counsel objected at the plea hearing,
the remedy would have been to have Mandic swear an oath and to proceed
with the colloquy. Mandic does not argue that, had he been sworn to tell the
truth, he would have answered differently when the prosecutor recited the
factual basis and asked Mandic if he agreed. To the contrary, Mandic testified
that he agreed to the factual basis, based on his attorney’s advice. Id. at 31.
Moreover, he does not claim that the failure to swear him in somehow
interfered with his ability to enter a voluntary and knowing plea. This defect
does not justify invalidating the plea. Fluharty, 632 A.2d at 315.
To the extent that Mandic argues his counsel was ineffective for failing
to object to statements made by the prosecutor at sentencing or contained in
the PSI, on the basis that they were incorrect or did not comport with the
charges, his challenge goes to the discretionary aspects of Mandic’s sentence
and does not form a basis for withdrawing a plea. Mandic has not proven that
the PCRA court erred in denying relief on his claim that prior counsel was
ineffective in connection with his guilty plea.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/20/2022
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