Com. v. Nevarre, D. ( 2020 )

J-S21026-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DANIEL RAYMOND NEVARRE :
:
Appellant : No. 1305 WDA 2019
Appeal from the PCRA Order Entered July 24, 2019
In the Court of Common Pleas of Cambria County Criminal Division at
No(s): CP-11-CR-0000717-2018
BEFORE: LAZARUS, J., DUBOW, J., and MUSMANNO, J.
MEMORANDUM BY DUBOW, J.: FILED MAY 26, 2020
Appellant, Daniel Raymond Nevarre, appeals from the July 24, 2019
Order entered in the Cambria County Court of Common Pleas dismissing as
meritless his first Petition filed pursuant to the Post Conviction Relief Act
(“PCRA”), 42 Pa.C.S §§ 9541-9546. After careful review, we adopt the PCRA
court’s November 7, 2019 Opinion as our own and affirm the dismissal of
Appellant’s Petition.
Appellant is a physician and owner of Plastic Surgical Associates of
Johnstown, Inc. An investigation conducted by the Pennsylvania Office of the
Attorney General revealed that from January 2010 to January 2017, Appellant
had routinely engaged in improper and fraudulent billing practices.
Accordingly, the Commonwealth filed a two-count Information, charging
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Appellant with making a False or Fraudulent Medical Assistance Claim and
Insurance Fraud.1
On May 25, 2018, Appellant, represented by Attorneys Arthur McQuillan
and Michael McCarrie, appeared before the trial court for a guilty plea hearing.
Initially, Appellant expressed confusion over the impact his guilty plea would
have on his medical license. Appellant’s counsel and the court explained to
Appellant that actions concerning his medical license were within the purview
of the Pennsylvania State Board of Medicine (“Board”), and were collateral
consequences over which the court did not exercise control. The court
recessed for Appellant to consult with counsel.2 Following this recess and
further inquiry by the court as to whether Appellant understood the possible
impact of a guilty plea on his medical license, Appellant confirmed that he
wished to plead guilty, and entered a guilty plea to the above offense. In
particular, Appellant indicated that: (1) he understood the rights he was giving
up by entering his plea; (2) he understood the terms of the plea agreement;
(3) no other promises were made to him; (4) he had not been threatened into
pleading guilty; (5) he understood his right to a trial; (6) he fully understood
what he was doing; (7) he was satisfied with his counsels’ representation; and
(8) he was entering his plea voluntarily and of his own free will. N.T., 5/28/18,
at 3-10.
____________________________________________
1 62 P.S. § 1407(a)(1) and 18 Pa.C.S. § 4117(a)(2), respectively.
2 Attorney McQuillan was present at the hearing and Attorney McCarrie
consulted by telephone.
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That same day, the court sentenced Appellant to pay restitution and
serve two concurrent 6- to 23- month sentences of incarceration, followed by
56 months of probation. Appellant did not file a Post-Sentence Motion or
direct appeal from his Judgment of Sentence. His sentence, thus, became
final on June 27, 2018, upon expiration of time to file a direct appeal. See
Pa.R.A.P. 903(a); 42 Pa.C.S. § 9545(b)(3).
On May 24, 2019, Appellant filed pro se the instant PCRA Petition in
which he claimed that his plea counsel had been ineffective and that counsel’s
ineffectiveness caused him to enter into an unlawful guilty plea. PCRA
Petition, 5/21/19, at 2. In particular, Appellant averred that he entered his
plea under the duress caused by the threat of civil asset forfeiture, that the
applicable medical guidelines conflict with the filed charges, and that the
charge dates were outside of the applicable 5-year statute of limitations, but
his counsel failed to assert these defenses.3 Id. at 3, 7.
On July 23, 2019, the PCRA court held a hearing on Appellant’s Petition.
At the hearing, the Commonwealth presented the testimony of Appellant’s
plea counsel, Attorneys McCarrie and McQuillan. Appellant testified on his own
behalf. Following the hearing, on July 24, 2019, the PCRA court concluded
____________________________________________
3 Appellant also filed a request to proceed in forma pauperis, which the PCRA
court denied. Accordingly, the court instructed Appellant that he had 30 days
to obtain counsel. Appellant declined to obtain counsel and proceeded pro se.
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that Appellant failed to present any evidence that he did not enter his plea
knowingly and voluntarily, and denied Appellant’s Petition as meritless.
This appeal followed.4 Both Appellant and the PCRA court complied with
Pa.R.A.P. 1925.
Appellant raises the following issue on appeal:
[] Did the PCRA court err by dismissing [Appellant’s] PCRA Petition
where he proved his plea was involuntary because his prior
attorneys rendered ineffective assistance when they advised
Appellant to plead guilty without reviewing the evidence against
him or his proffered defenses?
Appellant’s Brief at 2.
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
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).
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. (citation
omitted). To satisfy this burden, Appellant must plead and prove by a
preponderance of the evidence that: “(1) his underlying claim is of arguable
____________________________________________
4 Appellant retained private counsel, who filed a Notice of Appeal on
Appellant’s behalf.
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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) (citation omitted). 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).
“Allegations 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 of unknowing plea.” Commonwealth v.
Wah, 42 A.3d 335, 338 (Pa. Super. 2012) (citation omitted). “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.” Id. at 338-39 (citation omitted).
“The law does not require that the defendant be pleased with the outcome of
his decision to plead guilty: All that is required is that [his] decision to plead
guilty be knowingly, voluntarily, and intelligently made.” Commonwealth v.
Anderson, 995 A.2d 1184, 1192 (Pa. Super. 2010) (citation omitted). With
respect to the prejudice prong, the defendant who entered a guilty plea must
demonstrate that “it is reasonably probable that, but for counsel’s errors, he
would not have pleaded guilty and would have gone to trial.”
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Commonwealth v. Rathfon, 899 A.2d 365, 370 (Pa. Super. 2006) (citation
omitted).
Instantly, Appellant claims that the trial court erred in denying his
Petition because he presented evidence that his counsels’ defective advice
caused him to enter an unknowing and involuntary plea. Appellant’s Brief at
12. In particular, Appellant asserts that his counsel: (1) advised him to plead
guilty without first determining what evidence the Office of the Attorney
General had to support the charges against him; (2) fundamentally
misunderstood Appellant’s proffered defense related to the use of billing
codes; and (3) ignored Appellant’s exculpatory evidence. Id. at 12-24.
The Honorable Norman A. Krumenacker, III, who presided over
Appellant’s guilty plea hearing, has authored a comprehensive, thorough, and
well-reasoned Rule 1925(a) Opinion, citing to the record and relevant case
law in addressing each of Appellant’s ineffectiveness claims. After a thorough
review of the certified record, the briefs of the parties, the applicable law, and
the PCRA court’s Opinion, we conclude that there is no merit to Appellant’s
claims. Accordingly, we adopt that Opinion as our own and affirm the court’s
denial of PCRA relief. See Trial Ct. Op., 11/7/19, at 7-15 (concluding that
Appellant failed to satisfy the three prongs of the ineffective assistance of
counsel test because, inter alia: (1) Appellant’s counsels’ credible testimony
indicated that: (a) they understood the coding defense but did not believe it
would be effective given the Commonwealth’s evidence; and (b) they
considered all of the information available to them when advising Appellant,
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including Appellant’s allegedly exculpatory evidence; (2) Appellant did not
offer any testimony or evidence that counsels’ conclusion that Appellant’s
proffered defenses lacked merit was not reasonable; and (3) Appellant failed
to present any evidence that his counsel’s advice was outside of “the range of
competence demanded of attorneys in criminal cases”).
The parties are instructed to annex the trial court’s November 7, 2019
Opinion to any future filings.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/26/2020
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IN THE COURT OF COMMON PLEAS OF CAMBRIA COUN'ft. ; PErJNS-YiL VANIA
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COMMONWEALTH OF *
PENNSYL V ANIA1 * ' '
*
vs. * No. CP-ll-CR-0717-2018'
*
*
DANIEL RAYMOND NEV ARRE, * Opinion Pursuant to Rule of
* AppeJlate Procedure l 925(a)(l)
Defendant. *
*
Opinion Pursuant to Rule of Appellate
Procedure 1925(a)(l)
Krumenacker, P.J.: Daniel Raymond Nevarre (Nevarre] appeals from the denial of his
Petition for Post-conviction Relief on July 24, 2019, following a hearing held July 23, 2019.
Nevarre filed a timely Notice of Appeal and Concise Statement of Errors Complained of on
Appeal (Concise Statement) pursuant to Pennsylvania Rule of Appellate Procedure l 925(b).
In his Concise Statement, Nevarre asserts that plea counsel was ineffective for these reasons:
1) Plea counsel misunderstood Nevarre's proffered defenses.
2) Plea counsel ignored exculpatory evidence provided by Nevarre.
3) Plea counsel threatened that Nevarre would be subject to civil asset forfeiture if he
did not enter a guilty plea.
4) Plea counsel failed to determine what evidence the Commonwealth had against
Nevarre.
5) Plea counsel failed to interview any witnesses, employees, or alibi witnesses.
6) Plea counsel failed to inform Nevarre of the evidence the Commonwealth
allegedly possessed.
• •
7) Plea counsel failed to challenge the Commonwealth's evidence but merely
accepted it at face value.
8) Plea counsel failed to investigate various defenses Nevarre wished to raise.
For the reasons contained herein the appeal should be dismissed and the Court's order of July
24, 2019. should be affirmed.
CASE HISTORY
The charges in this matter arose out of an investigation conducted by the Pennsylvania
Office of Attorney General (OAG) via the 401h Statewide Investigating Grand Jury. The OAG
investigation focused on improper and fraudulent billing by Nevarre for the removal of
cancerous lesions and for eyelid surgery. The Commonwealth filed a two count information
as follows
Count l Provider Prohibited Acts - False Information/Claims - 62 P.S. §
1407(a)(l) Third Degree Felony
On or about January 4, 2010 through January 3, 2017, the Actor did knowingly
submit false information to Medical Assistance for the purpose of obtaining
greater compensation than that to which he was legally entitled, namely, the
Actor in his capacity as the owner and operator of Plastic Surgical Associates
of Johnstown. Inc. submitted and/or caused to be submitted Medicaid claims
and/or submitted false information which misrepresented the services rendered,
in violation of 62 P.S. § 1407(a)(l). This statute provides an exception to the
general statute of limitations under 42 Pa C.S. §5552,
Count 2 Insurance Fraud-18 Pa. C.S. § 4117(a)(2) Third Degree Felony
On or about January 4. 20 IO through January 3, 2017, the Actor did knowingly
and with the intent to defraud an insurer or self-insured, namely, Higlunark
Blue Cross I Blue Shield, UPMC and Medicare, present or cause to be
presented to Highmark Blue Cross I Blue Shield, UPMC, and Medicare any
statement forming a part of or in support of any insurance claim, that contained
false, incomplete, or misleading information concerning any fact or thing
material to the insurance claim, namely, the Actor in his capacity as the owner
and operator of Plastic Surgical Associates of Johnstown, Inc., submitted or
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caused to be submitted insurance claims which misrepresented the services
rendered, in violation of Section 4117(a)(2) of the Pennsylvania Crimes Code,
Act of December 6, 1972 as amended, 18 Pa. C.S. § 41 I 7(a)(2). This is an
exception to the applicable statute of limitations under 42 Pa C.S. §5552 (d),
Crim. Inf. 5/25/18 (emphasis in original). The Affidavit of Probable Cause summarized the
allegations against Nevarre as follows
The investigation revealed that Dr. Daniel Nevarre, owner of Plastic Surgical
Associates of Johnstown. routinely billed for services not rendered.
Specifically, the Actor billed for removal of cancerous tissue when in fact the
tissue samples were not cancerous. The Actor also billed for eyelid
reconstruction surgeries that were never completed.
Crim. Compl. Aff. Prob. Cause Jr 8.
On May 25, 2018, Nevarre entered guilty pleas to both counts of the information.
N.T. 5/25/18. As part of his plea Nevarre agreed to pay restitution to Highmark Blue
Cross/Blue Shield (Highrnark), UPMC, Medicare, and Medicaid and serve a sentence of six
(6) to twenty-three (23) months. Id. Nevarre was represented by attorneys Arthur McQuillan
(McQuillan) and Michael McCarrie (McCarrie) on his criminal case and by McCarrie and his
partner Charlie Artz (Artz) in a related civil matter.
During his plea Nevarre initially indicated confusion as to the possible impact a guilty
plea would have on his medical license. N.T. 5/25/18 pp. 4-7. Both McQuillan and the Court
explained that any actions concerning his medical license would be up to the Pennsylvania
State Board of Medi cine (Board) and would be a collateral consequence of the guilty plea
over which the Court had no control. Id. A recess was taken to allow Nevarre to further
consult with McQuillan as well McCarrie who was not present but was telephoned. Following
this recess and further inquiry by the Court as to whether Nevarre understood the possible
impact of his guilty plea on his license Nevarre indicated he wished to enter a guilty plea Id.
pp 8-10. As part of both his written and oral plea colloquy Nevarre indicated that: he
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•
understood the rights he was giving up by entering his plea; he understood the terms of the
plea agreement; there were no other promises made to him; he had not been threatened; he
understood his right to either a jury or non-jury trial; he fully understood what he was doing;
he was satisfied with his counsels' work; and that he was entering the plea voluntarily and of
his own free will. Id. pp. 3-10.
Following the entry of his plea Nevarre was sentenced as follows 1:
1) At docket number 0717-2018 Count 2- to pay the costs of prosecution, pay an
administration fee of three hundred dollars ($300), pay restitution to Highmark of
$101,669.10 and to UPMC of $86,083.64, and to serve a period of incarceration of
six (6) to twenty-three (23) months with a consecutive thirty-six (36) months of
probation. Nevarre's sentence was to be served as six (6) months on house arrest
with electronic monitoring and the remaining seventeen ( 17) months under
supervision. Nevarre's sentence was in the standard range for this offense and in
accordance with the terms of his plea agreement.
2) At docket number 0717-2018 Count 1 - to pay the costs of prosecution, pay an
administration fee of three hundred dollars ($300), pay restitution to Medicaid of
$14,907.18 and Medicare of $86,314.08, and to serve a period of incarceration of
six (6) to twenty-three (23) months with a consecutive thirty-six (36) months of
probation concurrent with docket number 0717-20 I 8 Count 2. Nevarre 's sentence
was to be served as six (6) months on house arrest with electronic monitoring and
the remaining seventeen ( 17) months under supervision. This sentence was in the
I
A pre-sentence investigation (PSI) had been completed prior to the entry of the plea and McQuillan had filed a
Pre-sentence Memorandum of beha If of N evarre.
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standard range for this offense and in accordance with the terms of his plea
agreement.
ld. pp. 22-24.
DISCUSSION
Our Supreme Court recently has explained a petitioner's burden under the PCRA as
follows
Preliminarily, in order to qualify for relief under the PCRA, a petitioner must
establish, by a preponderance of the evidence, that his conviction or sentence
resulted from one or more of the enumerated errors in 42 Pa. C.S. § 9543(a)(2);
that his claims have not been previously litigated or waived; and that the failure to
litigate the issue prior to or during trial or on direct appeal could not have been the
result of any rational, strategic, or tactical decision by counsel. ld. § 9543(a)(3),
(a)(4).
Additionally, to obtain relief under the PCRA based on a claim of ineffectiveness
of counsel, a PCRA petitioner must satisfy the performance and prejudice test set
forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674(1984). ln Pennsylvania. we have applied the Strickland test by requiring a
petitioner to establish that: (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. Commonwealth v. Pierce, 567 Pa. 186, 786 A.2d 203, 213
(2001 ). Counsel is presumed to have rendered effective assistance, and. if a claim
fails under any required prong of the Strickland test, the court may dismiss the
claim on that basis. Commonwealth v. Ali, 608 Pa. 71, 10 A.3d 282, 291 (2010).
Corrunonwealth v. VanDivner, 644 Pa. 655, 665-66, 178 A.3d 108, 114 (2018). "A
reasonable probability is a probability that is sufficient to undermine confidence in the
outcome of the proceedings." Commonwealth v. Collins, 598 Pa. 397, 957 A.2d 237, 244
(2008) (citing Strickland, 466 U.S. at 694, 104 S.Ct. 2052).
Where a defendant seeks post-conviction relief on the basis of an unknowing or
involuntary guilty plea, they bear the burden of proving, by a preponderance of the evidence,
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that the plea was involuntary and unknowingly entered. Commonwealth v. Carter, 318 Pa.
Super. 252, 264, 464 A.2d 1327, 1334 ( 1983). With regard to the voluntariness of a plea, a
guilty plea colloquy must "affirmatively demonstrate the defendant understood what the plea
connoted and its consequences." Commonwealth v. Lewis, 708 A.2d 497, 501 (Pa. Super.
1998). Once the defendant has entered a guilty plea, "it is presumed that he was aware of what
he was doing, and the burden of proving involuntariness is upon him." Commonwealth v.
Bedell, 954 A.2d 1209, 1212 (Pa. Super. 2008). Where the record shows that a proper
colloquy was conducted before the defendant entered his guilty plea the burden is on the
defendant to show that the plea was not intelligent and voluntary. See, Commonwealtb_v.o
Ingram, 455 Pa. 198, 316 A.2d 77 ( 1974); Commonwealth ex rel. West v. Rundle, 428 Pa.
102, 237 A.2d 196 (1968). Finally, the determination of whether the plea was knowing and
voluntary is necessarily a factual matter to be resolved by the trial court. Commonwealth v.
Johnson, 460 Pa. 303, 333 A.2d 739 (1975); Commonwealth v. Gray, 317 Pa. Super. 248,
251, 463 A.2d 1179, 1180 (1983).
Our Superior Court has further explained that
[ 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. Moser, 921 A.2d 526, 531 (Pa. Super. 2007) (internal quotations and
citations omitted). "Thus, to establish prejudice, the defendant must show that there is a
reasonable probability that, but for counsel's errors, he would not have pleaded guilty and
would have insisted on going to trial." Commonwealth v. Barndt, 74 A.3d 185, 192 (Pa.
Super. 2013) (citation and internal quotation marks omitted).
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In his first issue, Nevarre asserts that plea counsel misunderstood his proffered defense
related to the use of medical billing codes. Nevarre testified on his own behalf at the July 23rd
hearing and the Commonwealth presented testimony from McQuillan and McCarrie. Nevarre
testified that he wished to present a defense arguing that his actions were proper under the
Medicare and Medicaid guidance's related to the use of various billing codes and that plea
counsel did not understand those arguments. N.T. 7/23/19 pp. 5-7. McCarrie testified that his
primary practice relates to healthcare fraud and compliance and that he is familiar with the
billing codes. Id. pp. 44-47. He explained that he and McQuillan had met with attorneys from
the OAG and reviewed the evidence that had been collected which included: pictures of
patients showing no signs of surgery; statements from approximately ten (l 0) patients, who
were prepared to testify, indicating they or their medical insurance had been billed for
surgeries that were not performed; statements from between eight (8) and ten {10) of
Nevarre's employees, who were prepared to testify, indicating that he had recoded services in
a patient's record to services that were not provided; and statements from these employees
that Nevarre would bill insurance providers for services not provided. ld. at pp. 46-48.
He further testified that based on his experience and review of the evidence against
Nevarre the plea offered was "extremely favorable to Dr. Nevarre." Id. p. 51. McCarrie
explained that there was significant evidence against Nevarrc and that the longer the
investigation continued the OAG was discovering more evidence against Nevarre. Id. pp. 51-
54. McCarrie indicated that he and McQuillan sought to end the investigation and avoid
further charges by proactively seeking an early plea agreement favorable to Nevarre. Id. pp.
49, 54-55. McCarrie noted that regardless of coding practices a provider cannot code and bill
for a service that was not provided and that the OAG had patients and employees prepared to
testify that Nevarrc was doing precisely that. Id. pp. 56-61. McCarrie testified that based upon
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his review of the evidence and his understanding of the codes he did not believe the defense
Nevarre wished to present related to coding issues would be effective. Id. pp 51-61.
McQuillan testified that he was brought into the case at the suggestion of attorney
Andrew Barbin (Barbin) who was Nevarre's general attorney. Id. p. 67. McQuillan testified
that he reviewed the OAG's evidence which showed: they had reviewed more than 460 of
Nevarre's patient files; had statements from patients related to bills for services not provided;
had patients prepared to testify there were billed for eyelid surgeries that were not performed;
had pathology reports related to four (4) excisions that Nevarre billed as cancerous showing
they were in fact non-cancerous; had statements from Nevarre's employees indicating
Nevarre would cross out and change codes in patient's records; and had statements from
Nevarre's employees indicating Nevarre had billed for services not performed. Id. pp. 68-78.
McQuillan indicated that based on the evidence in possession of the OAG he believed it was
in Nevarre's best interest to end the investigation early in order to obtain the most favorable
deal possible. Id. pp. 77-78.
A review of the testimony presented at the July 23rd hearing shows that McQuillan and
McCarrie both understood the issues Nevarre wished to raise related to coding but concluded
that the defense was not practical given the Commonwealth's evidence. Other than his own
self-serving testimony, Nevarre offered no testimony to show that this conclusion by two
experienced criminal defense attorneys was erroneous or that his proffercd defense was likely
to be successful. Accordingly, Nevarre failed to establish that plea counsel was ineffective for
not understanding his proffered defense, rather the evidence shows that they understood and
considered the defense and found it lacking in light of the evidence.
Nevarre next contends that plea counsel was ineffective for ignoring exculpatory
evidence he provided to them. Other than his own self-serving testimony, Nevarre offered no
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testimony or evidence showing that he provided plea counsel with exculpatory evidence that
they ignored. There was no testimony from McQuillan or McCarric, either on direct or cross-
examination, which shows they ignored any evidence or defenses Navarre brought to their
attention. Their testimony, when read as a whole, demonstrates they considered all the
information available to them whether provided by the OAG or Nevarre when advising
Ncvarre relative to his option to enter a guilty plea or proceed to trial. Accordingly, Nevarre
failed to estab1ish that plea counsel was ineffective for ignoring exculpatory evidence.
Nevarre next contends that plea counsel induced him to enter his plea by threatening
that he would be subject to civil asset forfeiture if he did enter a guilty p1ea. Again other than
his own testimony Nevarre offered no evidence in support of this assertion. McCarrie testified
that he never discussed the possibility of asset forfeiture relative to the criminal charges with
Nevarre but focused on the amounts of restitution being sought by the insurers. N.T. 7/23/19
p. 49. McCarrie explained that he sought to limit Navarre's exposure to restitution claims by
halting the investigation via an early and favorable plea for Navarre. Id. McQuillan testified
that the OAG never threatened Nevarre with civil assert forfeiture and forfeiture was never an
issue in the criminal case. Id. pp. 79-81. McQuillan opined that Nevarre was comingling the
criminal and civil cases and that he consulted with attorney Barbin to confirm that none of the
restitution in the criminal matter was a double dip from the civil action. Id. p. 80; Cmwlth, Ex.
3. Accordingly, Nevarre failed to establish that plea counsel was ineffective for inducing him
to enter a plea based on the threat of civil assert forfeiture.
Nevarre next contends that plea counsel failed to determine what evidence the
Commonwealth had against him and to consider that evidence in light of his proffered
defenses and exculpatory evidence. The record reveals that there is no basis for this assertion.
McCarrie testified that he and McQuillan met with attorneys from the OAG and reviewed the
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•
evidence that had been collected against Nevarre which included: pictures of patients showing
no signs of surgery; statements from approximately ten ( 10) patients, who were prepared to
testify, indicating they or their medical insurance had been billed for surgeries that were not
performed; statements from between eight (8) and ten (10) of Nevarre's employees, who were
prepared to testify, indicating that he had recoded services in a patient's record to services that
were not provided; and statements from these employees that Nevarre would bill insurance
providers for services not provided. Id. at pp. 46-48, 52-55. McCarrie explained that there was
significant evidence against Nevarre and that the longer the investigation continued the OAG
was discovering more evidence against Nevarre. lg_, pp. 51-54. He further testified that based
on his experience and review of the evidence against Nevarre the plea offered was "extremely
favorable to Dr. Nevarre." Id. p. 51.
McQuillan testified that he reviewed the OAG's evidence which showed: they had
reviewed more than 460 of Nevarre's patient files; had statements from patients related to
bills for services not provided: had patients prepared to testify there were billed for eyelid
surgeries that were not performed; had pathology reports related to four (4) excisions that
Nevarre billed as cancerous showing they were in fact non-cancerous; had statements from
Nevarrc's employees indicating Nevarre would cross out and change codes in patient's
records; had statements from Nevarre's employees indicating Nevarre had billed for services
not performed. Id. pp. 68- 78. McQuillan indicated that based on the evidence in possession of
the OAG he believed it was in Nevarre's best interest to end the investigation early in order to
obtain the most favorable deal possible. Id. pp. 77-78. Other than his own testimony, Nevarre
has offered no evidence or testimony to dispute this testimony by plea counsel and the Court
found their testimony credible. Accordingly, Nevarre failed to establish that plea counsel was
ineffective for failing to review and carefully consider the Commonwealth's evidence against
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him.
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Nevarre next contends that the evidence establishes pJea counsel was ineffective for
failing to interview and witnesses, employees, or alibi witnesses. In order for a defendant to
establish that trial counsel was ineffective for failing to present witnesses, he must establish:
1) the witnesses existed; 2) the witnesses were available; 3) that counsel was informed of the
existence of the witnesses or should have known of the witnesses' existence; 4) that the
witnesses were available and prepared to cooperate and would have testified on the
defendant's behalf; and 5) the absence of the testimony prejudiced the defendant.
Commonwealth v. Crawley, 541 Pa. 408, 415, 663 A.2d 676, 679-80 (1995). Nevarre has
failed to establish any of these elements as he presented no evidence to support his assertions.
Relative to the patients and employees who had cooperated with the investigations and were
prepared to testify, Nevarre failed to establish that these witnesses were willing to be
interviewed by his plea counsel. Further, Nevarre has failed to establish that he was
prejudiced by plea counsels asserted failure by demonstrating that the witnesses had recanted
their statements to the investigators. Relative to potential alibi witnesses Nevarre has offered
no evidence that such witnesses existed and were available and prepared to cooperate with his
defense team. In contrast both McCarrie and McQuillan testified that Nevarre never presented
them with the names of potential alibi witnesses. N.T. 7/23/19 pp. 53, 74. Accordingly,
Nevarre failed to establish that plea counsel was ineffective for failing to interview any
witnesses, employees, or alibi witnesses.
Nevarre next argues that plea counsel was ineffective for failing to inform him of the
evidence the Commonwealth allegedly possessed. It is wen settled that "[a] person who elects
to plead guilty is bound by the statements he makes in open court while under oath and he
may not later assert grounds for withdrawing the plea which contradict the statements he
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made at his plea colloquy." Commonwealth v. Pollard, 832 A.2d 517, 523 (Pa. Super. 2003).
Here Nevarre entered his plea following completion of a written plea colloquy, and an oral
colloquy by the Court. N.T. 5/25/18; Pleader's Memorandum filed 5/25/18. During the
Court's colloquy, Nevarre indicated that: he understood the terms of his plea agreement; he
fully understood what he was doing by entering his plea; he had ample opportunity to consult
with counsel before entering his plea; his plea was voluntary; no one had made any threats or
promises related to sentencing; and that he was satisfied with counsels' work. N.T. 5/25/18
pp. 3-10. When read as a whole the guilty plea transcript reveals that Nevarre was aware of
the Commonwealth's case against him, including the evidence they possessed, and that he had
discussed this evidence with counsel. Finally, the Court finds it extremely doubtful that an
intelligent and well-educated defendant such as Nevarre would not discuss the evidence
arrayed against him with counsel prior to agreeing to plead guilty. Accordingly, Nevarre
failed to establish that plea counsel was ineffective for failing to inform him of the evidence
the Commonwealth allegedly possessed.
Nevarre next asserts that plea counsel failed to challenge the Commonwealth's
evidence but merely accepted it at face value. As noted above plea counsel met with
representatives of the OAG to review their evidence against Nevarre which included patient
records seized from Nevarre's office and statements by patients and employees. Nevarre
presented no testimony or evidence to show that prior to the entry of his plea he questioned
the veracity of the Commonwealth's evidence, much of which came from his own records,
such that counsel had reason to believe the evidence was inaccurate. As to the witness
statements, Ncvarre has not shown that plea counsel acted unreasonably in accepting that the
patients and employees who provided statements to the OAG's investigators and testimony
before the investigating grand jury would testify at trial consistent with their previous
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statements. Accordingly, Nevarre failed to establish that plea counsel was ineffective for
accepting that the Commonwealth's evidence at trial would be consistent with the information
provided during counsels' meeting with OAG attorneys.
Finally, Nevarre asserts that plea counsel failed to investigate various defenses he
wished to pursue. Nevarre argues that plea counsel failed to consider defenses related to:
a. the correctness of billing codes used;
b. ability to defend against claims that he improperly billed for surgeries not
performed;
c. suppression and spoliation issues;
d. statute of limitations;
e. under/overpayment calculations;
f. line audits showing the accuracy of billing practices;
g. the "without cause" termination by UPMC and the settlement and release
with Highmark.
McQuillan and McCarrie testified that Nevarre raised these possible defenses with them, that
they considered each one in turn, and that they ultimately concluded that none were viable.
N.T. 7/23/19 pp. 44-97.
As noted supra
To prevail on a claim alleging counsel's ineffectiveness under the PCRA, [ a
petitioner] must demonstrate ( 1) that the underlying claim is of arguable merit;
(2) that counsel's course of conduct was without a reasonable basis designed to
effectuate his client's interest; and (3) that he was prejudiced by counsel's
ineffectiveness, i.e. there is a reasonable probability that but for the act or
omission in question the outcome of the proceedings would have been
different.
Commonwealth v. Willis, 68 A.3d 997, 1001-1002 (Pa. Super. 2013) (quoting
Commonwealth v. Wah, 42 A.3d 335, 338 (Pa. Super. 2012)) (citations, quotation, and
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quotation marks omitted). Further, the petitioner bears the burden of proving all three prongs
of this test and the failure to prove any prong will be fatal to his claim of ineffectiveness.
Commonwealth v. Brown, 582 Pa. 461, 474, 872 A.2d l 139, 1146 (2005). See also,
Commonwealth v. Pierce, 567 Pa. I 86, 786 A.2d 203, 213 (2001); Commonwealth v. Grant,
572 Pa. 48, 813 A.2d 726 (2002); Commonwealth v. Albrecht, 554 Pa. 31, 720 A.2d 693, 701
(1998); Commonwealth v. Baker, 531 Pa. 541, 562, 614 A.2d 663, 673 (1992). Nevarre
offered no testimony or evidence that plea counsel's conclusion that these defenses lacked
merit or was not reasonable under the circumstances of the case. As such he failed to establish
the second prong of the ineffectiveness test.
As discussed supra"[ w]here 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. Hickman, 799
A.2d 136, 141 (Pa. Super. 2002) (citation omitted). (citations and quotations omitted). Here
Nevarre presented no evidence at his PCRA hearing that the advice provided by plea counsel
was not "within the range of competence demanded of attorneys in criminal cases." Id.Accordingly, for the forgoing reasons this appeal should be dismissed and the Court's order of
July 24, 2019, should be affirmed.
Finally, the Court observes, based upon its experience in this matter, that Nevarre's
primary area of concern is not with plea counsels' performance but rather with the loss of his
medical license - a circumstance of his own creation. As noted above, both the Court and plea
counsel explained in detail the possibility that the entry of a guilty in this matter might impact
Nevarre's medical license and that it would be up to the Board to determine what if any
impact the guilty plea would have on his license status. N.T. 5/25/18 pp. 4-8; N.T. 7/23/19 pp.
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• •
50-51, 84-85. After this explanation and further discussion with plea counsel, Nevarre chose
to enter his guilty plea.
On May 24, 2018, Nevarre filed with the Board an Application for Voluntary
Surrender of License and by Final Order dated July 16, 2018, the Board marked his license
inactive "Voluntary Surrender - Disciplinary". See, In the Matter of the Voluntary Surrender
of the License to Practice as a Medical Physician and Surgeon filed by Daniel Raymond
Nevarre. M.D., Bd. Med. File Nos. 18-49-005564, 18-49-004863 (July 16, 2018). Nevarre
subsequently petitioned the Board to reinstate his license asserting that he had not intended to
surrender bis license to practice but only to "relinquish[] ... my insurance (Medicare,
Medicaid and private) privileges." See, In the Matter of the Petition for Reinstatement of the
License to Practice as a Medical Physician and Surgeon filed by Daniel Raymond Nevarre,
M.D., Bd. Med. Case No. 18-49-00822P, p. 1 (Sept. 19, 2018). The Board denied the petition
but noted "that, pursuant to the terms of the Application, if [Nevarre] desires, he may reapply
for licensure in this Commonwealth, but will be subject to the requirements in effect at the
time of application." Id. p. 3. Thus in order to obtain his license to practice again in the
Commonwealth Nevarre would have to file a new application and comply with the current
license requirements rather than the simpler process of renewing/reinstating his current
license.
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