Com. v. Hein, V. ( 2015 )


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  • J-S57033-14
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
    PENNSYLVANIA
    Appellee
    v.
    VANCE P. HEIN
    Appellant                                      No. 429 EDA 2014
    Appeal from the PCRA Order entered January 8, 2014
    In the Court of Common Pleas of Chester County
    Criminal Division at No: CP-15-CR-0003737-2011
    BEFORE: DONOHUE, MUNDY, and STABILE, JJ.
    MEMORANDUM BY STABILE, J.:                      FILED FEBRUARY 18, 2015
    Appellant, Vance P. Hein, appeals pro se from the January 8, 2014
    order entered in the Court of Common Pleas of Chester County denying his
    petition for collateral relief filed pursuant to the Post Conviction Relief Act
    (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546, and granting PCRA counsel’s petition
    to withdraw.1 For the reasons set forth herein, we vacate and remand for
    further proceedings in accordance with this Memorandum.
    The PCRA court explained:
    [Appellant] pled guilty to five (5) counts of Possession of Child
    Pornography. In accordance with the plea agreement, he was
    sentenced to 15 to 30 years imprisonment.             [Appellant]
    thereafter filed this timely PCRA Petition alleging that his
    attorney provided him with ineffective assistance of counsel and
    1
    PCRA counsel filed his Petition to Withdraw and served his “no-merit” letter
    on Appellant pursuant to Commonwealth v. Finley, 
    550 A.2d 213
     (Pa.
    Super. 1988) (en banc).
    J-S57033-14
    that his guilty plea was unlawfully induced. Specifically, he
    claims that (1) his counsel’s representation fell below minimum
    acceptable standards; (2) at the time of the guilty pleas, he was
    under medication that affected his ability to make a competent
    decision; (3) he was wrongfully told that he was facing a 25 year
    mandatory minimum sentence if he did not accept the plea and
    he was found guilty of the charges against him; and (4) the
    written colloquy indicates a sentence of 6 to 12 years, not 15 to
    30 years. See [Appellant’s] Motion for Post Conviction Collateral
    Relief.
    At a hearing on May 23, 2012 during which [Appellant] pled
    guilty, [Appellant] testified that he had time to review the matter
    thoroughly with his attorney before entering his guilty plea, and
    that he was satisfied with the services provided by his attorney.
    He also testified that he reviewed the guilty plea colloquy
    thoroughly with his attorney and that he understood the various
    matters discussed in it. [Appellant] also testified that he was
    pleading guilty because he did, in fact, commit the crimes to
    which he was pleading guilty. Further, he testified that, other
    than the sentence agreed to in the plea agreement, no one
    promised him anything in order to get him to plead guilty, and
    that no one threatened, pressured or forced him in any way to
    plead guilty. In addition, he testified that he had consumed
    Prozac within 24 hours of accepting the plea, but that it did not
    interfere with his ability to understand the proceedings or to
    communicate with his attorney. At the time the guilty plea was
    entered, the court was of the opinion that [Appellant’s] plea was
    knowingly, voluntarily and intelligently offered. The court is still
    of that opinion.
    While [Appellant’s] plea was entered on May 23, 2012,
    sentencing was deferred until an evaluation of [Appellant] by the
    State Sexual Offender Assessment Board (hereinafter “SOAB”)
    could be completed. As a result of the SOAB assessment,
    [Appellant] was found to be a sexually violent predator by Dr.
    Mapes.
    A second hearing was held on August 16, 2012, during which
    sentence was imposed. [Appellant] testified that he did not
    consume any alcohol, drugs or medication, and that he did not
    have any mental illness or any other condition that would
    interfere with his ability to understand, make decisions and
    communicate with his attorney. He then waived his right to a
    2
    J-S57033-14
    hearing on whether he should be classified as a sexually violent
    predator.    He again testified that he reviewed the issue
    extensively with his counsel, no one promised him anything in
    order to get him to stipulate to the finding, and that he
    understood the terms and conditions of the registration
    requirements.    The court found that he made a knowing,
    voluntary and intelligent waiver of his right to have a sexually
    violent predator hearing. He was found to be a sexually violent
    predator and was subject to Megan’s Law requirements. The
    agreed upon sentence of 15 to 30 years imprisonment was then
    imposed.
    PCRA Court Order, 1/8/14, 2-3 (emphasis added).2
    Appellant filed a timely appeal from the January 8, 2014 order. In his
    statement of errors filed pursuant to Pa.R.A.P. 1925(b), Appellant asserted
    15 errors.    Appellant’s Statement of Matters Complained of on Appeal,
    3/3/14 at 1-3. In the brief filed with this Court,3 Appellant consolidated the
    2
    At the time of his 2011 arrest for child pornography, Appellant was serving
    a 15–year sentence of probation stemming from 2000 convictions for
    indecent assault (18 Pa.C.S.A. § 3612(a)), a misdemeanor of the second
    degree), endangering welfare of children (18 Pa.C.S.A. § 4304(a)), a
    misdemeanor of the first degree), and corruption of minors (18 Pa.C.S.A.
    § 6301(a)), a misdemeanor of the first degree). At both the guilty plea
    hearing and the sentencing hearing, counsel for the Commonwealth
    explained to the trial court that the plea agreement for a sentence of 15-30
    years was agreed to in lieu of the mandatory minimum 25-year sentence
    Appellant would otherwise face in light of his prior conviction. N.T. Guilty
    Plea Hearing, 5/23/12, at 2-3; N.T. Sentencing Hearing, 8/16/12, at 2.
    3
    We note that Appellant’s brief was due on Tuesday, July 15, 2014, by
    virtue of an extension granted by this Court. Appellant’s brief was not filed
    until Wednesday, July 16. In the absence of any objection to Appellant’s
    non-compliance with Pa.R.A.P. 2185(a)(1), relating to the time for serving
    and filing briefs, we elect to address the appeal pursuant to our discretion
    under Pa.R.A.P. 105(a). AmerisourceBergen Corp. v. Doe, 
    81 A.3d 921
    ,
    923 n.1 (Pa. Super. 2013).
    3
    J-S57033-14
    fifteen claimed errors into seven issues for this Court’s consideration. Those
    issues, stated verbatim, are:
    1. Could Mr. Hein’s February 15, 2000 conviction for Indecent
    Assault – W/O Consent of Other 18 § 3126(a)(1), a
    misdemeanor of the second degree (M-2) be designated as a
    Megan’s Law “First Offense” for sentencing purposes on new
    charges from 2011 when it did NOT become a “reportable
    offense until AFTER Mr. Hein’s August 16, 2012 sentencing for
    a Megan’s Law offense?
    2. Does the lower Court’s finding that Mr. Hein’s plea was
    “knowing and voluntary” supersede errors made by Counsel
    and the State relative to the applicability of a “mandatory
    minimum” used to justify his lengthy sentence?
    3. Was Mr. Hein denied competent and effective assistance of
    counsel during the plea bargaining process where Plea
    Counsel failed to challenge the State’s contention as to the
    applicability of a mandatory minimum?
    4. Was Mr. Hein denied his due process right to be sentenced on
    the basis of accurate information where the Assistant District
    Attorney represented to the Court that the sentence was
    within the “standard range” of the sentencing guidelines,
    when, in fact, it was outside and considerably above even the
    aggravated range?
    5. Was PCRA Counsel ineffective for failing to amend, present
    and preserve for Appellate Review, [Appellant’s] meritorious
    issue of Trial Counsel’s ineffectiveness where he failed to
    research and subsequently raise the possibility of challenges
    to Mr. Hein’s involuntary statements to his Probation Officer
    and suppression of the statements and the “fruits” of search
    of his computers which followed?
    6. Was the statute, Pa.C.S.A. § 6312(d), UNCONSTITUTIONALLY
    VAGUE and AMBIGUOUS, since the Legislature failed to
    specify a definitive Unit of Prosecution?
    7. Did the lower Court commit an abuse of discretion and error
    of law where it imposed sentences to be served consecutively,
    the aggregate of which was 15 to 30 years, where the
    4
    J-S57033-14
    sentence was manifestly excessive to the point it constituted
    too severe a punishment given the circumstances of the crime
    and where the sentence was based solely on the seriousness
    of the crime?
    Appellant’s Brief at 7.4
    This Court recently reiterated the standard of review from the denial of
    PCRA relief as follows:
    “On appeal from the denial of PCRA relief, our standard and
    scope of review is limited to determining whether the PCRA
    court’s findings are supported by the record and without legal
    error.” Commonwealth v. Edmiston, 
    65 A.3d 339
    , 345 (Pa.
    2013) (citation omitted). “[Our] scope of review is limited to the
    findings of the PCRA court and the evidence of record, viewed in
    the light most favorable to the prevailing party at the PCRA court
    level.” Commonwealth v. Koehler, 
    614 Pa. 159
    , 
    36 A.3d 121
    ,
    131 (2012) (citation omitted). “The PCRA court’s credibility
    determinations, when supported by the record, are binding on
    this Court.” Commonwealth v. Spotz, 
    610 Pa. 17
    , 
    18 A.3d 244
    , 259 (2011) (citation omitted). “However, this Court applies
    a de novo standard of review to the PCRA court’s legal
    conclusions.” 
    Id.
    Commonwealth v. Medina, 
    92 A.3d 1210
    , 1214-15 (Pa. Super. 2014).
    4
    Appellant’s brief fails to comply with Pa.R.A.P. 2111 (Brief of Appellant),
    which    directs   that    the  brief   include  the   order   in   question
    (Pa.R.A.P. 2111(a)(2)), and the statement of errors complained of on appeal
    (Pa.R.A.P. 2111(a)(11). Despite those deficiencies and our authority to
    dismiss an appeal for failure to comply with the rules governing briefs
    (Pa.R.A.P. 2101), we decline to do so.
    Of note also is the fact Appellant filed a Pa.R.A.P. 521 Notice to the Attorney
    General of a challenge to the constitutionality of 18 Pa.C.S.A. § 6312(d)
    (Sexual abuse of children—child pornography). However, the provisions of
    Rule 521(a) clearly state that the notice is to be filed “in any matter in an
    appellate court to which the Commonwealth or any officer thereof, acting in
    his official capacity, is not a party. . . .” Because the Commonwealth is a
    party to this matter, no notice was required. See Commonwealth v.
    Miller, 
    80 A.3d 806
    , 811 n.3 (Pa. Super. 2013) (citing Commonwealth v.
    Balog, 
    672 A.2d 319
    , 320 (Pa. Super. 1996)).
    5
    J-S57033-14
    This Court also recently summarized the three-pronged test applied
    when determining ineffectiveness of counsel.
    As originally established by the United States Supreme Court in
    Strickland v. Washington, 
    466 U.S. 668
    , 
    104 S.Ct. 2052
    , 
    80 L.Ed.2d 674
     (1984), and adopted by Pennsylvania appellate
    courts, counsel is presumed to have provided effective
    representation unless a PCRA petitioner pleads and proves all 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.
    Commonwealth v. Wantz, 
    84 A.3d 324
    , 331 (Pa. Super. 2014) (citations
    omitted).
    Reading Appellant’s first three issues together, Appellant is challenging
    the plea bargain that resulted in his sentence of 15 to 30 years in prison.
    Appellant contends he agreed to the plea bargain because he believed he
    was otherwise facing a mandatory minimum sentence of 25 years due to his
    prior conviction for indecent assault.   He asserts his guilty plea was not
    “knowing and voluntary” because, in fact, he was not subject to the
    mandatory minimum since his indecent assault conviction was graded as a
    second-degree misdemeanor.
    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. In determining whether a guilty plea was
    entered knowingly and intelligently, a reviewing court must
    review all of the circumstances surrounding the entry of that
    plea.
    6
    J-S57033-14
    Commonwealth v. Fears, 
    86 A.3d 795
    , 806-07 (Pa. 2014) (quoting
    Commonwealth v. Allen, 
    732 A.2d 582
    , 587 (Pa. 1999) (internal citations
    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.”
    Commonwealth v. Hickman, 
    799 A.2d 136
    , 141 (Pa. Super. 2002)
    (citations and internal quotations omitted).
    In its January 8, 2014 order, the PCRA court explained:
    [Appellant] also claims that he was wrongfully told that he was
    facing a 25 year mandatory minimum sentence if he did not
    accept a plea and he was found guilty of the charges against
    him.     [Appellant] claims that the statute on which the
    Commonwealth based its representations was not in effect until
    after the date of his sentencing. [Appellant] is mistaken. 42
    Pa.C.S.A. § 9718.2 provides in relevant part:
    (a)     Mandatory sentence. –
    Any person who is convicted in any court of this
    Commonwealth of an offense set forth in section 9799.14
    (relating to sexual offense and tier system) shall, if at the
    time of the commission of the current offense the person
    had previously been convicted of an offense set forth in
    section 9799.14 or an equivalent crime under the laws of
    this Commonwealth in effect at the time of the commission
    of that offense . . ., be sentenced to a minimum sentence
    of at least 25 years of total confinement, notwithstanding
    any other provision of this title or other statute to the
    contrary. . . .
    42 Pa.C.S.A. § 9718.2. While minor amendments to the statute
    went into effect on December 20, 2012 after [Appellant] was
    sentenced, the 25 year minimum sentence called for in the
    statute was, in fact, in effect and applicable to [Appellant] at the
    time of his sentencing. In 2000, [Appellant] was convicted of
    Indecent Assault, Endangering the Welfare of a Child and
    7
    J-S57033-14
    Corruption of Minors. Indecent Assault is one of the enumerated
    offenses listed in 42 Pa.C.S.A. § 9799.14. See 42 Pa.C.S.A.
    § 9799.14(b)(6). Possession of Child Pornography, which forms
    the basis of [Appellant’s] current charges, is also an enumerated
    offense under the statute. See 42 Pa.C.S.A. § 9799.14(b)(9).
    Thus, while the Commonwealth agreed to waive the mandatory
    minimum sentence if he accepted a plea, he was correctly told
    that he would have been facing a sentence of not less than 25
    years if he did not accept the plea and he was found guilty of the
    charges against him.
    PCRA Court Order, 1/8/14, 4-5.
    As the PCRA court correctly states, indecent assault is an offense set
    forth in 42 Pa.C.S.A. § 9799.14(b)(6). However, § 9979.14(b)(6) was not in
    effect until December 20, 2012, four months after Appellant was sentenced.5
    Immediately prior to December 20, 2012, 42 Pa.C.S.A. § 9718.2 called for
    the same mandatory minimum 25 year sentence but referred to § 9795.1
    rather than § 9799.14 for the crimes subjecting an individual to that
    mandatory minimum.     Indecent assault triggered the mandatory minimum
    25 year sentence under § 9795.1, but only “where the offense is graded as a
    misdemeanor of the first degree or higher.”      42 Pa.C.S.A. § 9795.1(a)
    (repealed).   Because Appellant’s indecent assault conviction in 2000 was
    graded as a second-degree misdemeanor, the registration provisions did not
    5
    42 Pa.C.S.A. § 9799.14 was passed into law on December 20, 2011 as part
    of P.L. 446, No. 111, and was effective one year from that date, i.e.,
    December 20, 2012. The section was subsequently amended on March 14,
    2014, retroactive to December 20, 2012, by P.L. 41, No. 19, which, inter
    alia, removed second-degree misdemeanor indecent assault convictions from
    the list of “sexually violent offenses.”
    8
    J-S57033-14
    apply to Appellant and his 2000 conviction did not constitute a previous
    conviction subjecting him to the mandatory minimum.
    Appellant’s   PCRA   counsel   addressed    the   mandatory      minimum
    sentencing issue in the letter to Appellant included with counsel’s petition to
    withdraw filed pursuant to Finley. In his letter, counsel explained:
    The next issue you raise in your pro se PCRA Petition is that your
    lawyer and the District Attorney told you that if you did not
    accept the plea offered then you could receive a sentence of 25
    years in prison. This is a statement of fact. Because of your
    prior convictions, you were facing a mandatory minimum
    sentence of 25 years.        In exchange for you[r] plea, the
    Commonwealth waived that mandatory. If you entered into an
    open plea or decided to go to trial and were convicted, you
    would have received, at a minimum, this mandatory minimum
    sentence of 25 years. Therefore, if convicted of all counts and
    sentenced you could have easily received a sentence greater
    than the one you bargained for and received. Even if the
    mandatory minimum did not apply to you, if you were convicted
    of all 5 counts of Sexual Abuse of Children (18 Pa.C.S.A. § 6732)
    which is a Felony III with a maximum punishment of 7 years,
    you could have received a sentence greater [than] 15 years if
    the judge decided to sentence you consecutively, which is within
    his authority to do. In addition, the charges that were dropped
    by the Commonwealth in exchange for your plea could have
    been prosecuted if you went to trial. If convicted the judge
    could sentence you consecutively on all charges which could add
    up to a period of incarceration well in excess of the 15 years you
    bargained for.
    PCRA Counsel Letter to Appellant, 11/12/13, at 4 (citation to Notes of
    Testimony omitted).
    Applying the Strickland test to Appellant’s case, we first consider
    whether Appellant’s underlying claim is of arguable merit.        Recognizing
    counsel erroneously advised Appellant he was subject to a mandatory
    9
    J-S57033-14
    minimum 25-year sentence when in fact he was not, we conclude Appellant’s
    claim has arguable merit. Next, because we cannot discern any objectively
    reasonable basis by which counsel’s action could effectuate Appellant’s
    interest, we find that Appellant has established the second prong of the
    Strickland case. Clearly, misinforming Appellant of the law governing his
    potential sentence in absence of entering a plea cannot be said to effectuate
    Appellant’s interest. See, e.g., Commonwealth v. Barndt, 
    74 A.3d 185
    ,
    196-99 (Pa. Super. 2013), and cases cited therein.
    As for the third prong of the Strickland test, requiring prejudice to the
    effect that a different outcome of the plea hearing was reasonably probable
    but for counsel’s error, this Court has stated:
    To succeed in showing prejudice, the defendant must show that
    it is reasonably probable that, but for counsel’s errors, he would
    not have pleaded guilty and would have gone to trial. Hill [v.
    Lockhart, 
    474 U.S. 52
    , 59 (1985)].               The “reasonable
    probability” test is not a stringent one. See Nix v. Whiteside,
    
    475 U.S. 157
    , 175, 
    106 S.Ct. 988
    , 
    89 L.Ed.2d 123
     (1986)
    (reasonable    probability    standard   less   demanding     than
    preponderance standard).
    Commonwealth v. Hickman, 
    799 A.2d 136
    , 141 (Pa. Super. 2002).
    In Commonwealth v. Mallory, 
    941 A.2d 686
     (Pa. 2008), our
    Supreme Court considered the prejudice prong of the Strickland test in a
    case involving the waiver of a jury trial.    Addressing the requirement for
    achieving a better outcome or result, the Court found the United States
    Supreme Court’s ruling in Hill instructive.       In Hill, which involved a
    challenge to a guilty plea based on ineffectiveness, the Court concluded that
    10
    J-S57033-14
    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.” Hill, 
    474 U.S. at 59
    . “[T]he Hill Court focused on the
    outcome of the guilty plea proceeding and did not require the defendant to
    demonstrate that but for counsel’s error, he would not have pled guilty and
    would have achieved a better outcome at trial.” Mallory at 703 (emphasis
    in original). In other words, Hill required a showing of a different outcome
    at the plea hearing stage but did not require a showing of a better result at
    trial.
    We acknowledge that PCRA counsel’s Finley letter outlined various
    alternate outcomes that could have occurred if the mandatory minimum did
    not apply to Appellant. However, because the PCRA court did not conduct a
    hearing before denying Appellant’s petition, the record is silent as to
    whether trial counsel advised Appellant—prior to entry of his plea—of any
    possible outcome other than the mandatory minimum 25-year sentence.
    Neither the written colloquy nor the transcript of the guilty plea hearing
    addresses alternate outcomes considered prior to entry of the plea.
    Consequently, the record is insufficient for this Court to determine whether,
    in absence of counsel’s deficient advice, Appellant would have declined to
    enter a plea and insisted upon proceeding to trial. Therefore, we remand to
    the PCRA court with instruction to conduct a hearing to ascertain what
    possible outcomes, if any, other than the mandatory minimum were
    11
    J-S57033-14
    explained to Appellant before he entered his plea. If, at the conclusion of
    the hearing on remand, the PCRA court determines Appellant has satisfied
    the prejudice prong of the Strickland test, Appellant shall be entitled to
    withdraw his guilty plea. If Appellant does not satisfy this prejudice prong of
    the Strickland test, then the trial court may properly conclude Appellant is
    not entitled to withdraw his plea.
    Order vacated and case remanded for proceedings consistent with this
    Memorandum. Jurisdiction relinquished.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 2/18/2015
    12