Com. v. Nau, G. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
GARY JAMES NAU :
:
Appellant : No. 1528 WDA 2019
Appeal from the PCRA Order Entered February 4, 2019
In the Court of Common Pleas of Jefferson County Criminal Division at
No(s): CP-33-CR-0000538-2016
BEFORE: MURRAY, J., McLAUGHLIN, J., and PELLEGRINI, J.*
MEMORANDUM BY McLAUGHLIN, J.: FILED OCTOBER 14, 2020
Gary James Nau appeals from the order denying him relief under the
Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. He raises
ineffectiveness claims. We affirm in part, reverse in part, and remand with
instructions.
In April 2017, Nau entered a negotiated guilty plea to 14 counts of
Burglary and one count each of Corrupt Organizations, Dealing in Proceeds of
Unlawful Activities, Conspiracy to commit Corrupt Organizations, Conspiracy
to commit Burglary, Attempted Burglary, and Theft by Unlawful Taking or
Disposition.1 The plea agreement provided for an aggregate sentence of nine
to 25 years, but gave the court discretion in the structuring of the sentence.
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S.A. §§ 3502(a), 911(b), 5111(a), 903(a), 901(a), and 3921(a),
respectively.
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The trial court imposed concurrent terms of three to 10 years’ incarceration
for all counts of Burglary, Conspiracy, and Attempted Burglary; concurrent
terms of eight to 20 years’ incarceration for Corrupt Organizations, Dealing in
Proceeds of Unlawful Activities, and Conspiracy to commit Corrupt
Organizations; and a consecutive term of one to five years’ incarceration for
Theft by Unlawful Taking. Nau’s aggregate sentence was nine to 25 years’
incarceration. The court also imposed restitution. Nau did not file a direct
appeal.
In March 2018, Nau filed the instant, timely PCRA petition raising claims
of ineffective assistance of counsel. He filed an amended PCRA petition in
September 2018 and the PCRA court appointed counsel. Following a hearing,
the PCRA court denied Nau’s petition. In September 2019, Nau filed a Motion
to Reinstate Appellate Rights Nunc Pro Tunc, which the PCRA court granted.
In the motion, Nau asserted that he did not receive notice of the denial of his
PCRA petition and therefore “could not advise [counsel] of his intention to
appeal the [c]ourt’s decision.” Motion to Reinstate Appellate Rights Nunc Pro
Tunc, filed 9/20/19, at ¶ 6. This timely appeal followed.
Nau raises ineffectiveness claims on appeal:
I. Was trial counsel ineffective in failing to properly advise
[Nau] regarding the elements of corrupt organizations,
conspiracy to corrupt organizations, and dealing in proceeds
and did the [c]ourt commit reversible error in accepting the
guilty pleas since the facts failed to support those
allegations?
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II. Was trial counsel ineffective in failing to object to the
sentence of theft to run consecutive to those of burglary
when the charges must be merged for sentencing purposes?
III. Was trial counsel ineffective in failing to object to the
restitution awarded when it was not established that Nau
could afford to pay those amounts and still meet his basic
living expenses?
Nau’s Br. at 4.
When reviewing the denial of a PCRA petition, we determine “whether
the evidence of record supports the court's determination and whether its
decision is free of legal error.” Commonwealth v. Beatty, 207 A.3d 957,
961 (Pa.Super. 2019), appeal denied, 218 A.3d 850 (Pa. 2019).
We presume counsel was effective and the petitioner bears the burden
of pleading and proving otherwise. See Commonwealth v. Fears, 86 A.3d
795, 804 (Pa. 2014). To do so, the petitioner thus must plead and prove all
the following: “(1) the underlying claim has arguable merit; (2) no reasonable
basis existed for counsel's actions or failure to act; and (3) [appellant] 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.” Id. (quoting Commonwealth v. Lesko, 15 A.3d 345, 373–74
(Pa. 2011)). When claiming counsel was ineffective in connection with the
entry of a guilty plea, a petitioner must plead and prove that counsel’s alleged
ineffectiveness caused the petitioner to enter an unknowing or involuntary
plea. Commonwealth v. Barndt, 74 A.3d 185, 192 (Pa.Super. 2013).
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For his first issue, Nau argues that trial counsel was ineffective for
allowing him to plead guilty to charges that were not supported by the “facts.”
See Nau’s Br. at 9. He references his testimony at the PCRA hearing that while
he admitted to being involved in the burglaries, he “denied being part of a
corrupt organization.” Id. He claims that he “was told he would have to plead
guilty” to Corrupt Organizations, conspiracy to commit Corrupt Organizations,
and Dealing in Proceeds of Unlawful Activities, without counsel explaining the
elements of and defenses to those crimes. Id. at 10.
This claim lacks merit. Nau ignores that guilty plea counsel testified at
length at the PCRA hearing that he reviewed the guilty plea colloquy form with
Nau, including the elements of the crimes, and that there was extensive
evidence supporting each of the charges to which Nau pleaded guilty. The
PCRA court credited counsel’s testimony, and we are bound by its credibility
determination. See Commonwealth v. Todd, 820 A.2d 707, 712 (Pa. Super.
2003).
Next, Nau alleges that counsel was ineffective for failing to object to the
trial court’s imposition of consecutive sentences for the burglary and theft
convictions because they should have merged. Nau’s Br. at 12. Convictions
merge for sentencing purposes where “the crimes arise from a single criminal
act and all of the statutory elements of one offense are included in the
statutory elements of the other offense.” 42 Pa.C.S.A. § 9765. Where merger
is appropriate, “the court may sentence the defendant only on the higher
graded offense.” Id.
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The subsection of the Burglary statute under which Nau pleaded guilty
provides that a crime occurs when a person, “with the intent to commit a
crime therein,” “enters a building or occupied structure, or separately secured
or occupied portion thereof that is not adapted for overnight accommodations
in which at the time of the offense no person is present.” 18 Pa.C.S.A. §
3502(a)(4). Theft by Unlawful Taking occurs when a person “unlawfully takes,
or exercises unlawful control over, movable property of another with intent to
deprive him thereof.” 18 Pa.C.S.A. § 3921(a). Additionally, the Burglary
statute states that a person may only be sentenced for both burglary and the
offense “which it was his intent to commit after the burglarious entry[,]” when
the additional offense is a felony of the first or second degree. 18 Pa.C.S.A. §
3502(d).
The PCRA court agreed that the Theft conviction should have merged
with the Burglary conviction as a lesser included offense, but denied relief
because it concluded that Nau did not sustain prejudice. PCRA Ct. Op. at 7-8.
The court stated that notwithstanding the concededly illegal sentence, “Nau
received the benefit of the bargain, and in light of the progression and tenor
of negotiations, there can be no doubt that a timely objection by [trial counsel]
would have resulted in nothing more than the [c]ourt transferring the
consecutive 1-5 to a different charge.” Id.
Although Theft by Unlawful Taking does not have the same elements as
Burglary, the convictions merge because Theft by Unlawful Taking is graded
as a felony of the third degree. See 18 Pa.C.S.A. § 3502(d); Sentencing Order,
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filed 4/10/17. Therefore, the sentence on the Theft conviction constitutes an
illegal sentence and we must vacate it. See Commonwealth v. Syno, 791
A.2d 363, 365 (Pa.Super. 2002). We reverse the PCRA court’s denial of relief
for this claim and remand with instructions for the lower court to vacate the
consecutive sentence of one to five years’ incarceration for Nau’s theft
conviction. The court shall restructure the sentence upon resentencing to give
effect to the plea agreement.
Finally, Nau claims that plea counsel was ineffective for failing to
challenge the trial court’s imposition of restitution as part of Nau’s sentence,
without first determining his ability to pay. See Nau’s Br. at 14-15.
“Section 1106 of the Crimes Code specifies that restitution is mandatory
and the defendant's financial resources, i.e., his ability to pay, is irrelevant
unless and until he defaults on the restitution order.” Commonwealth v.
McCabe, 230 A.3d 1199, 1208 (Pa.Super. 2020), appeal granted, No. 226
MAL 2020, 2020 WL 5014921 (Pa. Aug. 25, 2020) (citing Commonwealth v.
Colon, 708 A.2d 1279, 1284 (Pa.Super. 1998)). Here, the restitution that the
trial court imposed as a part of Nau’s sentence was mandatory and Nau’s
ability to pay was irrelevant unless and until he defaults on the restitution
order. See id. Trial counsel was not ineffective for failing to object to the
court’s imposition of restitution in Nau’s sentence because the underlying
claim is meritless. Accordingly, we affirm in part, reverse in part, and remand
with instructions.
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Order affirmed in part and reversed in part. Case remanded with
instructions. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/14/2020
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