Com. v. McMullen, B.

J-S96020-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
BRIAN TIMOTHY MCMULLEN
Appellant No. 645 WDA 2016
Appeal from the PCRA Order April 5, 2016
In the Court of Common Pleas of Potter County
Criminal Division at No(s):
CP-53-CR-0000097-2013
BEFORE: BENDER, P.J.E., BOWES, J., AND SOLANO, J.
MEMORANDUM BY BOWES, J.: FILED FEBRUARY 15, 2017
Brian Timothy McMullen appeals from the April 5, 2016 order denying
him PCRA relief. We affirm.
On May 16, 2013, Appellant was charged with child endangerment,
corruption of a minor, and two counts of indecent assault. On May 16,
2013, officials from Oswayo Valley High School contacted Pennsylvania State
Trooper Glenn C. Drake and asked him to come to school to meet with
Appellant's son, I.M. I.M. had located a suicide note in Appellant's dresser
drawer. Appellant's son spoke with his minister about the note, and the
minister contacted school personnel, who, in turn, called police. I.M. was
willing to meet with Trooper Drake due to his concern for his father. I.M.
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told Trooper Drake that the note indicated that Appellant was suicidal
because Appellant was in love with his fifteen year old niece, V.K.O., and
had an inappropriate relationship with her. At Trooper Drake’s request, I.M.
retrieved the suicide note. The document confirmed that Appellant was in
love with his niece and, in it, Appellant “gave specific details of events and
touching that constituted Indecent Assault." Affidavit of Probable Cause,
5/16/13, at 1.
Trooper Drake met with V.K.O. that day, and she "related that
[Appellant] did touch her inappropriately on several occasions" by touching
her vaginal area over her pants.” Id. In addition, while they were in the
swimming pool, Appellant grabbed her several times and pressed his groin
against her buttocks. V.K.O. also informed Trooper Drake that Appellant
had told her that he was in love with her and that he wrote her sexually
explicit love letters. Appellant bought the victim a vibrator, which she
refused to accept.
Trooper Drake brought Appellant to the police barracks that evening
and administered Miranda warnings to him. Appellant “expressed remorse
and embarrassment. He indicated that his feeling and behavior with VKO
was inappropriate." Id. Appellant also admitted that he committed the
sexual contact described by the victim and that he was sexually aroused by
it. This conduct occurred when V.K.O. was between thirteen and fifteen
years old and Appellant was aged fifty-two to fifty-four.
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On February 25, 2014, Appellant pled guilty to child endangerment
graded as a third-degree felony and indecent assault graded as a second-
degree misdemeanor. There was no agreement as to the length of sentence
but there was a binding sentencing recommendation that Appellant would
serve his term in the local county facility. On June 10, 2014, Appellant was
sentenced to eighteen to forty-eight months imprisonment, to be served in
Potter County Jail, followed by two years probation. Appellant filed a timely
motion to modify his sentence, which was denied on August 25, 2014.
Appellant did not file a direct appeal from the judgment of sentence.
On August 19, 2015, Appellant filed a timely, counseled PCRA petition.
The PCRA court conducted a hearing and denied relief. This appeal followed.
Appellant raises these issues for our review:
I. Whether the PCRA court erred when it determined that trial
counsel was not ineffective for failing to litigate a motion to
suppress physical evidence?
II. Whether the PCRA court erred when it determined that
[Appellant’s] guilty plea was not unlawfully induced as a result of
counsel's ineffectiveness by failing to advise him and pursue a
motion to suppress?
III. Whether the PCRA court erred when it determined that
[Appellant’s] guilty plea was not unlawfully induced by trial
counsel's ineffectiveness by providing [deficient] advice
regarding his true sentencing exposure?
Appellant's brief at 4.
Initially, we note that this Court reviews the “denial of PCRA relief to
determine whether the findings of the PCRA court are supported by the
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record and free of legal error.” Commonwealth v. Roane, 142 A.3d 79, 86
(Pa. Super. 2016) (quoting Commonwealth v. Treiber, 121 A.3d 435, 444
(Pa. 2015)). “This Court grants great deference to the findings of the PCRA
court, and we will not disturb those findings merely because the record could
support a contrary holding. We will not disturb the PCRA court's findings
unless the record fails to support those findings.” Commonwealth v.
Patterson, 143 A.3d 394, 397 (Pa.Super. 2016) (citation omitted).
Appellant’s first two assertions are related. He asserts that plea
counsel should have filed a motion to suppress and that counsel’s failure in
this respect led to Appellant’s entry of an unknowing and involuntary guilty
plea. The following uncontested facts are pertinent. On May 16, 2013,
Appellant’s son, I.M., discovered a suicide note written by Appellant in
Appellant’s sock drawer. I.M. told his minister who contacted school
officials. They called the police. I.M. voluntarily met with the school
personnel and Trooper Drake because he was worried about Appellant’s well
being. When Trooper Drake arrived at the school to interview I.M., the boy
told him what the document said, but the letter was not in I.M.’s possession.
Trooper Drake asked I.M. to obtained the note, and I.M. complied with that
request.
Appellant avers that plea counsel should have moved to suppress the
note and evidence obtained from its discovery on the ground that I.M. was
acting as an agent or instrument of police when he seized that document
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without a warrant. Appellant continues that counsel’s failure to file what
would have been a successful suppression motion caused his entry of an
involuntary and unknowing guilty plea. At the PCRA hearing, plea counsel
testified that he did not file a suppression motion because he did not believe
it would have been successful. The PCRA court concurred in this
assessment.
In order to obtain relief based upon ineffective assistance of counsel,
the defendant must demonstrate: “(1) the underlying claim is of arguable
merit; (2) that counsel had no reasonable strategic basis for his or her
action or inaction; and (3) but for the errors and omissions of counsel, there
is a reasonable probability that the outcome of the proceedings would have
been different.” Patterson, supra at 397-98. “A defendant is permitted to
withdraw his guilty plea under the PCRA if ineffective assistance of counsel
caused the defendant to enter an involuntary plea of guilty.” Id. at 397
(citation omitted); accord Commonwealth v. Fears, 86 A.3d 795, 806–07
(Pa. 2014) (citation omitted) (“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.”). “The voluntariness of the plea depends on whether counsel's advice
was within the range of competence demanded of attorneys in criminal
cases.” Patterson, supra at 397 (citation omitted).
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We now ascertain whether plea counsel correctly concluded that a
suppression motion would not have been granted. As noted by the United
States Supreme Court in Burdeau v. McDowell, 256 U.S. 465 (1921), the
Fourth Amendment’s protection against unlawful searches and seizures
applies only to actions by the government. “Its origin and history clearly
show that it was intended as a restraint upon the activities of sovereign
authority[.]” Id. at 475. If a search is conducted by a private citizen
independently and without police involvement and if the individual offers the
fruits of that search to governmental authorities, then the Fourth
Amendment is inapplicable. Id. However, the individual must act
completely of his own accord and without the participation of the prosecuting
authorities; otherwise, Fourth Amendment protections will apply to the
search. See Byars v. United States, 273 U.S. 28, 28–34, 47 S. Ct. 248,
248–50, 71 L. Ed. 520 (1927). The crucial determination to be made in
ascertaining whether governmental action is involved in a search is whether
the private citizen, “in light of all the circumstances of the case, must be
regarded as having acted as an ‘instrument’ or agent of the state[.]”
Coolidge v. New Hampshire, 403 U.S. 443, 487 (1971).
Appellant relies upon Commonwealth v. Borecky, 419 A.2d 753(Pa.Super. 1980). Therein, police obtained a warrant to search the
defendant’s home based upon information supplied by a confidential
informant (“CI”). We invalidated the warrant as it was issued based upon
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facts derived from a prior, illegal search. The following facts informed our
decision. The CI told police that marijuana could be found in the defendant’s
residence. The CI’s reliability was established as follows. Acting at the
direction of police, the CI entered the defendant’s dwelling to search for
marijuana and took a portion of that substance and gave it to authorities.
The Borecky Court concluded that the CI’s surreptitious entry into the
home and his seizure of marijuana without a warrant was unconstitutional as
it was done “with the prior knowledge and concurrence of the” police. Id. at
754. We found that the police participated in securing the incriminating
evidence seized by the CI and disapproved of their collusion in what we
characterized as an illegal activity, which was the unauthorized removal of
an item from an individual’s home. This Court held that police “ratified [the
CI’s] unlawful acts and, under well-established principles of the law of
agency, they assumed responsibility for them to the same extent as if they
themselves had made the seizure.” Id. at 756 (citation omitted). The CI’s
search was deemed a governmental search and ruled unconstitutional under
the Fourth Amendment.
In the present case, the seizure of the letter was conducted by
Appellant’s son rather than a stranger, and a different set of principles are at
play. I.M. testified at the PCRA hearing, and the court credited his
testimony. Its factual findings in this regard are supported by the record
and will be accepted by this Court. Specifically, I.M. lived with his parents
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and freely entered and exited his parent’s bedroom. In addition, the boy
accessed his father’s sock drawer on prior occasions and looked for socks.
I.M. reported that Appellant was aware that I.M. entered the unlocked sock
drawer, and I.M. believed that he had permission to access that drawer.
Thus, I.M. was not an outsider, such as the CI at issue in Borecky. To
the contrary, I.M. lived with Appellant in the same home, freely entered
Appellant’s bedroom, and accessed the sock drawer with Appellant’s
knowledge. I.M. initially discovered the suicide note on his own and without
any police involvement. Under these circumstances, we concur with the
PCRA court’s application of Commonwealth v. Rathfon, 705 A.2d 448(Pa.Super. 1997). In that case, Rathfon litigated an unsuccessful
suppression motion wherein he asserted that his paramour conducted an
unconstitutional search of their residence while acting as a governmental
instrument or agent. The girlfriend lived with Rathfon, and they had three
children together. Federal authorities met with the paramour, and she told
them that she had observed drugs in their home, which was owned by
Rathfon. The federal agents obtained a search warrant based upon the
paramour’s information, discovering marijuana, cocaine residue, drug
paraphernalia, and tools used for growing and processing marijuana.
Rathfon was arrested and released and continued to grow marijuana.
The paramour once again reported his behavior to federal agents, who
obtained another search warrant and found drugs and drug paraphernalia.
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In seeking to suppress the evidence obtained with the search warrants,
Rathfon claimed that his girlfriend acted as a government agent and entered
his residence without permission when she gathered the information that
provided the basis for the search warrants.
The Rathfon court noted that the Fourth Amendment is inapplicable to
conduct by a private individual when the person acts without the
participation of governmental officials. We found that the defendant’s
girlfriend had acted as a governmental agent since it was established that
the federal authorities had participated in her search by asking her to look
through the residence and report her observations to them. Nevertheless,
this Court affirmed the denial of Appellant’s suppression motion.
The Rathfon Court reasoned that, while the paramour “may have
been acting as a government agent, the question still remains whether she
entered Rathfon's premises with his permission. In order to have a
reasonable expectation of privacy, one must intend to exclude others and
must exhibit that intent.” Id. at 452. This Court concluded that suppression
was unwarranted given the proof that the paramour had free access to the
home, holding “that Rathfon had no legitimate expectation of privacy specific
to [his girlfriend] entering his home.” Id. We relied upon the fact that she
lived with Rathfon and had unfettered access to the home.
We more recently applied the Rathfon holding in Commonwealth v.
Stafford, 749 A.2d 489 (Pa.Super. 2000). Joseph Walburn approached
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police and reported that Appellant was importing marijuana seeds from a
foreign county in order to grow that substance. After meeting with police
several times, Walburn told them that he had observed growing marijuana
plants. Police instructed Walburn to enter the defendant’s home and to look
for growing marijuana. Walburn complied with that directive, and, after
entering Stafford’s house, reported back that he saw about 160 live plants
on the second floor of the premises.
The Stafford Court held that, while Walburn was acting as a
governmental agent when he saw the plants, Stafford had no reasonable
expectation of privacy as to Walburn. We observed that Stafford and
Walburn had known each other for months and that the defendant had
consented to Walburn's presence in his home. Accordingly, we opined,
Stafford “did not have an expectation of privacy in what the informer
[Walburn] observed.” Id. at 498. This Court’s holding was: “There is no
dispute that [the defendant] willingly invited [Walburn] into his home. We
hold that [the defendant] had no reasonable expectation of privacy in those
areas that would be open to Mr. Walburn's plain view during his visits.” Id.see also Coolidge, supra (suppression of clothing and guns given to police
at police’s request by defendant’s wife not warranted under Fourth
Amendment since wife gave police objects of her own accord).
We conclude that Rathfon and Stafford apply herein. I.M. had
unfettered access to Appellant’s bedroom and sock drawer. He found the
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suicide note independent of any police involvement. When I.M. returned to
retrieve it, he was not acting illegally since he had permission to be on the
premises and enter the drawer. Thus, under the Rathfon and Stafford
cases, Appellant did not have a reasonable expectation of privacy as to I.M.
with respect to the sock drawer. Therefore, plea counsel did not act
ineffectively in failing to move to suppress the note and the evidence
recovered as a result of it. A suppression motion would not have been
successful. Accordingly, Appellant’s guilty plea was not induced by plea
counsel’s neglect in this respect, and his first two claims fail.
Appellant’s final position is that he should be permitted to withdraw his
guilty plea since plea counsel did not properly inform him about his
sentencing exposure. The following law is pertinent. A maximum sentence
of less than two years of prison must be served in county jail. 42 Pa.C.S. §
9762(b)(3)(“Maximum terms of less than two years shall be committed to a
county prison without the jurisdiction of the court.”). If the maximum jail
term is more than five years, it must be served in a state penitentiary. 42
Pa.C.S. § 9762(b)(1)(“Maximum terms of five or more years shall be
committed to the Department of Corrections for confinement.”). There is an
option available with respect to a maximum term of imprisonment of
between two and five years:
(2) Maximum terms of two years or more but less than
five years shall be committed to the Department of Corrections
for confinement, except upon a finding of all of the following:
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(i) The chief administrator of the county
prison, or the administrator's designee, has certified
that the county prison is available for the
commitment of persons sentenced to maximum
terms of two or more years but less than five years.
(ii) The attorney for the Commonwealth has
consented to the confinement of the person in the
county prison.
(iii) The sentencing court has approved the
confinement of the person in the county prison
within the jurisdiction of the court.
42 Pa.C.S. § 9762(b)(2). Herein, as noted, there was a binding agreement
that Appellant would serve his jail term in county prison, and he was
sentenced to eighteen to forty-eight months in county jail pursuant to §
9762(b)(2).
We conclude that any improper advice purportedly given by plea
counsel regarding Appellant’s sentencing exposure was dispelled by the
contents of the plea colloquy. The plea court plainly told Appellant that the
child endangerment charge was graded as third-degree felony and that the
"maximum penalty for Felony of the Third Degree is imprisonment up to 7
years and a fine of $15,000 or both." N.T. Plea, 2/25/14, at 5. Appellant
indicated that he understood. The plea court then explicitly informed
Appellant that he faced a two-year jail term for the indecent assault and that
"the maximum term of imprisonment which you could be subject [to] under
today's plea . . . would be 9 years[.]" Id. at 6. The court acknowledged that
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it was bound to impose a county term but informed Appellant that it was
within its discretion to impose "such sentence in the Court's discretion within
the range that [a] county sentence could encompass." Id.
Thus, Appellant knew his maximum sentencing exposure and that he
would serve his sentence in county jail. His sentence was less than the
maximum sentence that Appellant was told could be imposed, and he was
ordered to serve his term in county prison. Having been informed of the
pertinent sentencing options and having been sentenced in accordance with
the plea agreement, Appellant cannot establish that plea counsel’s
ineffectiveness about his potential sentence caused him to enter an
unknowing and involuntary plea.
Appellant also notes that his sentence was within the aggravated
range of the guidelines, and avers his plea was involuntary since plea
counsel did not tell him that he faced an aggravated-range sentence. It is
settled that “there is no legal requirement that a defendant be aware of the
guideline ranges in order to enter a valid guilty plea. A defendant must be
informed of the statutory maximum[.]” Commonwealth v. Fowler, 893
A.2d 758, 765 (Pa.Super. 2006). In the present matter, Appellant was told
about the statutory maximum, and his plea is valid despite the fact that he
was not informed about the sentencing guidelines and that he faced a
sentence in the aggravated range. Hence, Appellant cannot withdraw his
guilty plea based upon plea counsel’s sentencing advice.
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Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/15/2017
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