Com. v. Edgar, M.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
MICHAEL KENNETH EDGAR, :
:
Appellant : No. 1053 WDA 2014
Appeal from the PCRA Order Entered June 11, 2014,
In the Court of Common Pleas of Indiana County,
Criminal Division, at No. CP-32-CR-0001265-2011.
BEFORE: DONOHUE, SHOGAN, and STABILE, JJ.
MEMORANDUM BY SHOGAN, J.: FILED FEBRUARY 18, 2015
Michael Kenneth Edgar (“Appellant”) appeals from the order entered
on June 11, 2014, that denied his petition for relief filed pursuant to the Post
Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546. We affirm.
According to the PCRA court’s summary in its opinion to this Court:
[Appellant’s] conviction stems from events occurring on July 16,
2011, that led to accusations of sexual assault by his teenage
daughter.[1] On April 3, 2012, he entered a plea of nolo
contendere to Corruption of Minors and on June 13, 2012, was
sentenced to incarceration of not less than one (1) year less one
(1) day nor more than two (2) years less one (1) day with credit
for time served. He was also ordered to pay the costs of
prosecution of $410.25 and a fine of $500.00. Following his
1
The Commonwealth offered the following factual basis: “On July 16,
2011, at approximately 2100 hours in Indiana Borough at specifically 477
Oak Street, [Appellant] . . . had taken his daughter’s foot and was rubbing
his penis with his daughter’s foot. At that time his daughter then woke up
and then left the couch area.” N.T. (Plea), 4/3/12, at 5.
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release from the Indiana County Jail on January 23, 2013, he
was placed on probation for three (3) years and ordered to have
no contact with the victim or her mother. [Appellant] was
represented at trial by court-appointed counsel . . . and now
alleges that he was provided with ineffective assistance of
counsel.
PCRA Court Opinion, 6/11/14, at 1.
After serving his term of incarceration and while on probation,
Appellant filed a pro se PCRA petition on June 13, 2013, asserting his
innocence and claiming that trial counsel induced him to plead nolo
contendere. The PCRA court appointed counsel, who moved for a private
investigator on September 23, 2013, and filed an amended PCRA petition on
January 15, 2014. The PCRA court conducted a hearing on May 28, 2014,
and denied Appellant’s petition on June 11, 2014. This appeal followed.
Appellant and the trial court complied with Pa.R.A.P. 1925.
Appellant presents the following questions for our consideration:
I. Whether the PCCRA [sic] [court] abused its discretion
when it made a finding that defense counsel did not induce
[Appellant] to plead nolo contendere, even though the
evidence showed that defense counsel informed
[Appellant] that he would likely receive credit for time
served and be released.
II. Whether the PCCRA [sic] court abused its discretion when
it made [a] finding that defense counsel was effective
counsel, even though defense counsel failed to subpoena
two material witnesses at trial who observed [Appellant]
and his daughter in good spirits after the alleged criminal
incident.
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III. Whether the PCCRA [sic] court abused its discretion when
it made a finding that defense counsel was effective
counsel, even though defense counsel could have
presented prescription medication evidence at trial that
caused [Appellant’s] impotency, rendering the statements
of the minor child (victim) that [Appellant] had an erection
to be baseless, showing [Appellant] is innocent.
IV. Whether the PCCRA [sic] court abused its discretion when
it made a finding that defense counsel was effective
counsel, even though [Appellant] was not made aware by
defense counsel that his nolo contendre [sic] plea would
result in a “no contact” order with his daughter.
Appellant’s Brief at 4 (full capitalization omitted).
Our standard of review of an order denying PCRA relief is whether the
record supports the PCRA court’s determination and whether the PCRA
court’s determination is free of legal error. Commonwealth v. Phillips, 31
A.3d 317, 319 (Pa. Super. 2011) (citing Commonwealth v. Berry, 877
A.2d 479, 482 (Pa. Super. 2005)). The PCRA court’s findings will not be
disturbed unless there is no support for the findings in the certified record.
Id. (citing Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super.
2001)).
When considering an allegation of ineffective assistance of counsel,
counsel is presumed to have provided effective representation unless the
PCRA petitioner pleads and proves that: (1) the underlying claim is of
arguable merit; (2) counsel had no reasonable basis for his or her conduct;
and (3) Appellant was prejudiced by counsel’s action or omission.
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Commonwealth v. Pierce, 527 A.2d 973, 975-976 (Pa. 1987). “In order
to meet the prejudice prong of the ineffectiveness standard, a defendant
must show that there is a ‘reasonable probability that but for counsel’s
unprofessional errors, the result of the proceeding would have been
different.’” Commonwealth v. Reed, 42 A.3d 314, 319 (Pa. Super. 2012).
A claim of ineffective assistance of counsel will fail if the petitioner does not
meet any of the three prongs. Commonwealth v. Williams, 863 A.2d
505, 513 (Pa. 2004). “The burden of proving ineffectiveness rests with
Appellant.” Commonwealth v. Rega, 933 A.2d 997, 1018 (Pa. 2007).
It is clear that a criminal defendant’s right to effective
counsel extends to the plea process, as well as during trial.
However, [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. Willis, 68 A.3d 997, 1001–1002 (Pa. Super. 2013)
(quoting Commonwealth v. Wah, 42 A.3d 335, 338 (Pa. Super. 2012)).
“[T]he law does not require that [the defendant] be pleased with the
outcome of his decision to enter a plea of guilty: All that is required is that
[his] decision to plead guilty be knowingly, voluntarily, and intelligently
made.” Id. at 1002 (quoting Commonwealth v. Anderson, 995 A.2d
1184, 1192 (Pa. Super. 2010)).
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Appellant first avers that trial counsel was ineffective at trial for
inducing Appellant to plead nolo contendere with a statement that Appellant
could be released from custody for time served. Appellant’s Brief at 21–22.
In response, the Commonwealth asserts that Appellant has failed to
“acknowledge or address the necessary three-prong showing for
ineffectiveness.” Commonwealths’ Brief at 10. We acknowledge the
Commonwealth’s complaint; however, given the fact that the structural
deficiency of Appellant’s argument does not hamper our review, we choose
to address the first issue in the interest of judicial economy. Accord
Commonwealth v. Long, 532 A.2d 853 (Pa. Super. 1987) (considering
merits of appellant’s claims despite briefing deficiencies in interest of judicial
economy).
In its opinion to this Court, the PCRA court opined that trial counsel:
fully explained to [Appellant] what a nolo contendere plea
entailed and while he informed [Appellant] that there was a
possibility of his release at sentencing, he did not promise that
this would be the outcome. The [PCRA c]ourt [found trial
counsel’s] testimony credible as to the information he relayed to
[Appellant] about his possible sentence. Additionally,
[Appellant] signed a plea colloquy listing the maximum sentence
on April 3, 2012, that states[:] “I am aware of the permissible
range of sentences and/or fines for the offenses(s) [sic] with
which I am charged.” At the plea hearing on the same day the
[PCRA c]ourt explained the meaning and consequences of the
nolo contendere plea including the possible range of the
sentence to [Appellant] and he indicated that he understood.
The [PCRA c]ourt also informed him of his right to the alternative
of going to trial and [Appellant] again indicated that he
understood. The Court then specifically asked [Appellant] if
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[trial counsel] had discussed these consequences and
alternatives with him and [Appellant] indicated that he had.
At all times through the plea hearing, [Appellant] indicated
that he understood the consequences of his plea and that his
decision was voluntary. Accepting Counsel’s testimony as
credible, the [PCRA c]ourt [did] not find any indication that he
was ineffective in explaining the consequences of the plea to
[Appellant]. [Defense counsel] explained the possible scenarios
that could result from [Appellant’s] charges including
incarceration in a state penitentiary for a felony conviction as
well as his possible release at sentencing. As defense counsel
for [Appellant], [trial counsel] had a responsibility to explain
these possibilities in order to fully inform his client.
PCRA Court Opinion, 6/11/14, at 5–6.
Our review of the record reveals support for the PCRA court’s findings
and conclusion. Trial counsel testified that he did not induce Appellant’s
decision to plead nolo contendere. N.T. (PCRA), 5/28/14, at 64–65. On the
contrary, trial counsel continued:
I did and in absolute certain terms explained to [Appellant] what
nolo meant including the sentencing options were the same as if
it was [sic] a guilty plea. . . . I am certain, a hundred percent
certain I told him he would get credit for time served . . . . As
far as he asked me probably 20 or 50 times whether he would
be getting out on that day and each time I told him I cannot tell
you that. It is a possibility and I told him it is a possibility but
there is no way I can tell him that because there is no sentence
bargain and sentencing is up to the sentencing judge and
without knowing what is in the judge’s mind I cannot tell him
that he will be getting out.
Id. 65–66; see also id. at 77–78 (“I am sure I would have told him that it
is possible that the Judge would find time served sufficient but I told him
that there was no way I could predict it.”). Notably, when asked on cross-
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examination if trial counsel promised or guaranteed Appellant that he was
getting out of jail, Appellant admitted: “No guarantees . . . the mind set at
the time was that I just wanted out of jail.” Id. at 55. Additionally, at the
plea hearing Appellant informed the trial court that he was entering the plea
“just to avoid the trauma of [his daughter] having to come in here.” N.T.
(Plea), 4/3/12, at 24. Moreover, the trial court conducted a plea colloquy on
the record, Appellant completed a written plea colloquy, and Appellant
stated in open court that he understood the nature of the plea, the
consequences of the plea, the alternative of a trial, and that his plea was
knowing and voluntary. Id. at 3–9, 11–24; Colloquy for Plea of Guilty/Nolo
Contendere, 4/3/12.
Based on the foregoing evidence of record, we conclude that
Appellant’s underlying claim that trial counsel induced his nolo contendere
plea lacks merit. As the PCRA court observed, “[Trial counsel] cannot be
considered ineffective because of how [Appellant] used [the sentencing]
information in deciding to enter a plea.” PCRA Court Opinion, 6/11/14, at 6.
Thus, the PCRA court did not err in denying Appellant relief on this
challenge.
Next, Appellant argues that trial counsel was ineffective because he
failed to question “two material witnesses who would have testified that
Appellant and the victim were in good spirits after the alleged sexual
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assault.” Appellant’s Brief at 23. In response, the Commonwealth posits
that trial counsel “had a reasonable basis for not investigating them.”
Commonwealth’s Brief at 13.
We reiterate the axiomatic principle that, “upon entry of a guilty plea,
a defendant waives all claims and defenses other than those sounding in the
jurisdiction of the court, the validity of the plea, and what has been termed
the ‘legality’ of the sentence imposed.” Commonwealth v. Eisenberg, 98
A.3d 1268, 1275 (Pa. 2014). We liberally interpret Appellant’s second
challenge as suggesting that his plea was involuntary and, therefore, invalid,
because trial counsel suggested the plea without properly investigating
potential defense witnesses.
“With regard to an attorney’s duty to investigate, the Supreme Court
has noted that the reasonableness of a particular investigation depends upon
evidence known to counsel, as well as evidence that would cause a
reasonable attorney to conduct a further investigation.” Willis, 68 A.3d at
1002. Furthermore, to satisfy the Pierce test when raising a claim of
ineffectiveness for the failure to call a potential witness:
our Supreme Court has instructed that the PCRA petitioner must
establish that: (1) the witness existed; (2) the witness was
available to testify for the defense; (3) counsel knew, or should
have known, of the existence of the witness; (4) the witness was
willing to testify for the defense; and (5) the absence of the
testimony of the witness was so prejudicial as to have denied the
defendant a fair trial.
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Commonwealth v. Wantz, 84 A.3d 324, 331 (Pa. Super. 2014) (citing
Commonwealth v. Sneed, 45 A.3d 1096, 1108–1109 (Pa. 2012)).
Upon review, we note the evidence of record suggests that the two
witnesses existed, that they were available to testify, that counsel knew or
should have known of their existence, and that they were willing to testify
for Appellant. At the PCRA hearing, defense counsel and the Commonwealth
stipulated that the two witnesses, Gregory Buggs and Don Straughtman,
observed Appellant and his daughter several days after the alleged incident
and that neither of them saw any concern, fear, or animosity between
Appellant and his daughter. After entry of the stipulation, the witnesses
were dismissed. N.T. (PCRA), 5/28/14, at 5–6. Additionally, trial counsel
acknowledged that, although he did not recall Appellant mentioning the
names of the two men, he did recall Appellant saying that Appellant and his
daughter had been seen together amicably after the incident. Id. at 61, 69–
70.
Nevertheless, the PCRA court concluded that trial counsel had a
reasonable basis for not investigating the two witnesses:
[Trial counsel] testified that [Appellant] might have mentioned
these individuals and he would have looked into them had the
decision been made to proceed to trial. [Trial counsel] testified
that he did contact someone at the Indiana Playhouse where
[Appellant] and his daughter were preparing for a play. The
response he received was not one that he believed would be
favorable to [Appellant] so he did not continue to pursue that
angle of the investigation. [Trial counsel] additionally testified
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that he investigated other claims [Appellant] made about his
whereabouts and activities he engaged in on various occasions
and found several inconsistencies in his statements.
* * *
The [PCRA c]ourt [found] that [trial counsel’s] investigation was
reasonable and as a result, he cannot be deemed ineffective.
[Trial counsel] testified that he met with [Appellant] at the
Indiana County Jail on more than one occasion and at the last
meeting [Appellant] indicated that he wished to proceed with the
trial. As [trial counsel] was leaving the room, [Appellant]
summoned him back in and said he had changed his mind and
wanted to enter a nolo contendere plea. At this point, [trial
counsel] testified that he would have had ample time to prepare
for a trial should [Appellant] have chosen that route, but
because he decided to take the plea instead there was no reason
to continue trial preparation. Here, the [PCRA c]ourt finds [trial
counsel’s] actions reasonable in not continuing to prepare a
defense . . . .
PCRA Court Opinion, 6/11/14, at 4–5.
The record supports the PCRA court’s findings with regard to trial
counsel’s testimony. N.T. (PCRA), 5/28/14, at 61, 69–70. Moreover, we
defer to the PCRA court’s credibility determinations, which favored trial
counsel’s version of preparing a defense. PCRA Court Opinion, 6/11/14, at
5. In doing so, we discern no error in the PCRA court’s conclusion that trial
counsel had a reasonable basis for not investigating the two witnesses,
namely, Appellant’s decision not to go to trial. Thus, Appellant is not
entitled to relief.
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Appellant’s third issue challenges trial counsel’s failure to investigate a
side effect of one of the prescriptions Appellant was taking at the time of the
incident. Appellant’s Brief at 26. According to Appellant, the Interferon he
was taking caused erectile dysfunction; therefore, his daughter could not
have “felt [his] erect penis while she was sleeping.” Id. at 26, 29. Rather,
Appellant claims, he had a lighter and a cell phone in his jeans pocket, which
is what his daughter felt. N.T. (PCRA), 5/28/14, at 25.
We repeat: “[T]he reasonableness of a particular investigation
depends upon evidence known to counsel, as well as evidence that would
cause a reasonable attorney to conduct a further investigation.” Willis, 68
A.3d at 1002. Here, the PCRA court recounted trial counsel’s testimony
“that he did check the Physician’s Desk Reference to verify the claim of
impotence as a side effect.” PCRA Court Opinion, 6/11/14, at 4; N.T.
(PCRA), 5/28/14, at 62. Trial counsel further explained as follows:
I didn’t go further into that. I mean, in this particular case had
we gone to trial I would definitely assume he would have wanted
to testify and knowing what I know I probably would have
advised him to. It would have been a claim that he could make
and there would be no way to refute that.
N.T. (PCRA), 5/28/14, at 62–63, 75–76. Based on trial counsel’s testimony,
the PCRA court concluded that trial counsel did investigate Appellant’s
medicine-based claim and that trial counsel had a reasonable basis for not
pursuing the investigation, namely, entry of the nolo contendere plea. PCRA
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Court Opinion, 6/11/14, at 4. Our review of the record confirms the PCRA
court’s findings, and we discern no error in the PCRA court’s conclusion.
Thus, Appellant’s third claim fails.
Appellant’s final complaint is that trial counsel failed to inform him that
entering a nolo contendere plea would result in the continuation of a “no
contact” order previously imposed as a condition of bail. Appellant’s Brief at
26. The Commonwealth counters that Appellant “fails to address the Pierce
ineffectiveness analysis” in his brief and that “[t]he ‘no contact’ order was a
collateral matter, and, therefore, irrelevant in determining whether defense
counsel provided ineffective assistance of counsel[.]” Commonwealth’s Brief
at 14, 15. Again, despite the structural deficiency of Appellant’s argument,
we shall address his final ineffectiveness claim, noting that the PCRA did not
address this contention in its opinion to this Court.
The Commonwealth argues against relief on this issue as follows:
The “no contact” order was a collateral matter, and,
therefore, irrelevant in determining whether defense counsel
provided ineffective assistance of counsel because when
[Appellant] posted bail he was ordered to not have any contact
with the victim and that order was still in effect when [Appellant]
entered the plea.
Commonwealth’s Brief at 15 (citing N.T. (PCRA), 5/28/14, at 77).
Upon review, we discern no basis in the record for granting the relief
Appellant requests. Despite trial counsel’s recollection that he did not
discuss the no-contact order with Appellant, Appellant has not established
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that trial counsel’s representation was outside the range of competence
demanded of attorneys in criminal cases. Willis, 68 A.3d at 1002. Trial
counsel’s negotiations with the prosecutor resulted in a nolle prosequi of
more serious charges and the case not being designated a Megan’s Law
case. N.T. (Plea), 4/3/12, at 2–3, 11, 21; N.T. (PCRA), 5/28/14, at 65, 76–
77. Trial counsel investigated Appellant’s claims about witnesses and the
effect of his medication. N.T. (PCRA), 5/28/14, at 60–63. The PCRA court
deemed credible trial counsel’s testimony that he informed Appellant of
possible sentencing results but could not tell Appellant what his sentence
would include because “there is no sentence bargain and sentencing is up to
the sentencing judge.” N.T. (PCRA), 5/28/14, at 66; PCRA Court Opinion,
6/11/14, at 5. We will not disturb that credibility determination. Moreover,
although the no-contact order was still in effect when Appellant entered his
plea, Appellant repeated several times at the plea hearing that he
understood the nature of a nolo contendere plea, that he and counsel
discussed consequences of the plea, and that he did not have any questions.
N.T. (Plea), 4/3/12, at 65–66, 77–78. Based on the foregoing, we conclude
Appellant is not entitled to relief.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/18/2015
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