Com. v. Rhinehart, D., III

J-S38019-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DONALD R. RHINEHART, III :
:
Appellant : No. 1780 MDA 2019
Appeal from the PCRA Order Entered June 11, 2019
In the Court of Common Pleas of Lancaster County Criminal Division at
No(s): CP-36-CR-0000015-2018
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DONALD R. RHINEHART, III :
:
Appellant : No. 1781 MDA 2019
Appeal from the PCRA Order Entered June 11, 2019
In the Court of Common Pleas of Lancaster County Criminal Division at
No(s): CP-36-CR-0000016-2018
BEFORE: KUNSELMAN, J., McLAUGHLIN, J., and STEVENS, P.J.E.*
MEMORANDUM BY McLAUGHLIN, J.: FILED DECEMBER 17, 2020
Donald R. Rhinehart, III, appeals pro se from the dismissal of his petition
pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-
9546. Rhinehart claims, inter alia, that his counsel was ineffective in
connection with his plea of no contest and during his direct appeal. We affirm.
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* Former Justice specially assigned to the Superior Court.
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In addition, Rhinehart has filed a Motion for an Evidentiary Hearing, which we
deny.
In October 2017, the Commonwealth filed a Complaint alleging that
Rhinehart had been in a relationship with a minor since May 2015. See PCRA
Ct. Op., 1/13/20, at 1. Rhinehart “would pay the minor to tie him down,
waterboard him, cut him, and burn him for the purpose of sexual gratification.”
Id. (citing Criminal Compl., 10/25/17, at ¶ 5). Rhinehart would also “send
text messages, e-mails, and call the minor to discuss their encounters and
profess his love to the minor,” and repeatedly requested “nude photographs
and sexual acts from the minor.” Id. at 1-2 (citing Criminal Compl. at ¶ 1, 3,
4, 6). The Complaint further alleged that while police were investigating
Rhinehart, he told the minor not to cooperate with the police investigation,
and told the minor’s mother “the investigation would ruin both his and the
minor’s lives, and he would leave the minor alone in exchange for the
discontinuation of the investigation.” Id. (citing Criminal Compl. at ¶ 7, 9).
The Commonwealth charged Rhinehart with multiple crimes. Rhinehart
retained private counsel, and on the day trial was to begin, he entered a
negotiated plea of no contest to one count of Intimidation of Witness or Victim
and one count of Corruption of Minors.1 The court conducted an on-the-record
colloquy, in which it notified Rhinehart of the elements of the crimes to which
he was pleading no contest, and stated the maximum penalties for each
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1 18 Pa.C.S.A. §§ 4952(a)(1) and 6301(a)(1)(ii), respectively.
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offense. See N.T., 8/3/18, Plea Hearing, at 10-12. The Commonwealth stated
the factual basis for each charge, which the court described as “a summary of
the evidence that the Commonwealth says it would be able to produce.” Id.
at 13-14. Rhinehart agreed that the Commonwealth “would be able to
introduce that evidence” to support the charges. Id. at 14. The court explained
Rhinehart’s right to a jury trial and appeal, and the presumption of innocence.
Id. at 14-16. Rhinehart confirmed that he was entering a plea of no contest
“of his own free will.” Id. at 17. Pursuant to the terms of the agreement, the
other charges were nolle prossed following the plea of no contest, and the
court sentenced Rhinehart to an aggregate of three to eight years’
incarceration.
Rhinehart filed a timely notice of appeal, but Rhinehart’s appellate
counsel discontinued the appeal on October 29, 2018. See Nos. 1464 MDA
2018, 1465 MDA 2018. Shortly thereafter, the trial court received a pro se
letter from Rhinehart, dated November 25, 2018, confirming Rhinehart wished
to discontinue the appeal. The letter stated, “I need to withdraw my appeal
immediately due to what will happen if I continue it/due to being threatened.
And it doesn’t matter why I want it withdrawn/why I must, only that I’m the
defendant + if I say to withdraw the appeal: It must be withdrawn.” Pro Se
Correspondence, 11/25/18, at 1.
Approximately three and a half months after his direct appeal was
discontinued, on February 17, 2019, Rhinehart sent a pro se letter to the trial
court stating he wanted to file a petition, “AKA a PCRA,” to raise claims that
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plea and direct appeal counsel were ineffective, and asking the court to
appoint counsel. Letter from Rhinehart to Clerk of Courts, dated Feb. 17, 2019,
at 1 (unpaginated). The court treated the letter as a PCRA petition and
appointed counsel, who subsequently filed a Turner/Finley2 no-merit letter
and motion to withdraw. Counsel’s no-merit letter stated that he had spoken
with Rhinehart on the telephone, and Rhinehart had asked him to raise a claim
that plea counsel was ineffective for not reviewing discovery documents until
two days before the plea hearing. Counsel also said Rhinehart had asked him
to argue that his constitutional rights in general were violated and his plea
was unlawfully induced. Counsel stated he found those claims meritless and
had discovered no other potentially meritorious claims.
The PCRA court sent Rhinehart notice of its intention to dismiss his
Petition without a hearing. See Pa.R.Crim.P. 907(1). Rhinehart filed a pro se
response criticizing PCRA counsel for not pursuing his claims, and requesting
an extension of time in which to file an amended PCRA petition. However, his
response to the notice did not identify any issues in addition to those counsel
had identified in his Turner/Finley letter. The court granted counsel leave to
withdraw and dismissed the Petition. Through leave of court, Rhinehart filed
a nunc pro tunc notice of appeal.3
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2 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v.
Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).
3 Although both of the notices of appeal Rhinehart filed reference both docket
numbers, because he filed two separate notices, he has conformed to the
requirements of Rule 341. See Commonwealth v. Johnson, 2020 PA Super
164 (filed July 9, 2020).
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Rhinehart’s appellate brief lists a multitude of issues:
1). Did trial counsel render grossly ineffective assistance of
counsel by having [Rhinehart] plead guilty to charges by:
(A). Was trial counsel [sic] advice erroneous and prejudicial
concerning [Rhinehart’s] right to stand trial?
(B). Was trial counsel performance ineffective when the plea
did not meet the standard of objective reasonableness?
2). Did trial counsel’s lack of trial preparation, performance, and
erroneous decision making cause her to be so ineffective that
[Rhinehart] was under duress to plead guilty, even when he
always asserted he was innocent? Facts to support this are:
(A). Counsel stated if [Rhinehart] went to trial she wouldn’t
question plaintiff/victim (or mention) regarding the
following:
1). Text messages, voicemails, emails, videos, social
media postings which would show the plaintiff’s/victim’s
violent tendencies/character, which would help prove the
physical assaults on [Rhinehart] were unwarranted &
were actually due to plaintiff/victim’s desire to be violent.
2). Statement made at the recorded police interviews
showing plaintiff/victim lied to police. Trial counsel stated
incorrectly that the PA Rape Shield Law would have
forbade it.
(B). Trial counsel refused to do any pretrial motions due to
[Rhinehart] not holding his end of the agreement up of
making additional payments.
(C). Trial counsel gave [Rhinehart] forensic CD (From seized
phone) to [Rhinehart] only having it for three (3) days (And
never taking it back). It was entirely impossible for trial
counsel to go over 3,000 text messages and 21,000 images
(that included online messages between plaintiff/victim &
[Rhinehart that] could show plaintiff/victim had been
extorting & physically assaulting [Rhinehart], not that
[Rhinehart] was paying the plaintiff/victim to do that), etc.,
to properly prepare for trial.
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[(]D). Trial counsel had compelled [C]ommonwealth to turn
over discovery, but items were “faulty” or missing when
turned over & trial counsel wouldn’t do anything about it.
Items were:
1). Asking for access to the seized cell phone so we could
see online message images in their full original size,
rather than what the prosecution gave us (80% of
images were to small/fuzzy to read due to how the police
actually saved/recorded/retrieved the images to put on
the discovery CD).
2). Requesting newly (a week before “Call of trial”)
discovered CD by [Rhinehart] in the police reports that
contained voicemails that the [C]ommonwealth/police
had never turned over to the defense.”
3). Was the court erroneous and prejudicial by:
A). Not letting paid trial counsel withdraw as counsel so
[Rhinehart] could get a public defender. According to trial
counsel she asked the court several times months before
“Call of trial” And court denied it, as well as at the “Call of
trial”.
B). [Rhinehart] tried to voice his concerns of trial counsel at
“Call of trial” but court dismissed his remarks & pressured
[him] to continue on with proceedings.
C). Court was incorrect when the judge stated that
[Rhinehart] had fired multiple attorneys as a delay tactic
when this instance was first & only time [Rhinehart] had
tried to terminate an attorney for not properly
defending/representing him.
D). When sentencing [Rhinehart], the court failed to
adequately inform him of the elements of the felony charge
of corruption of minors.
4). Was direct appeal counsel, Jade Salyards, ineffective in
withdrawing direct appeal when she knew [Rhinehart] asked her
to under duress.
5). When sentencing Mr. Rhinehart, the Commonwealth failed to
state sufficient facts to support an element of the felony charge of
corruption of minors. Specifically:
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a. Corruption of minors is graded as a felony of the third
degree if the defendant engages in a course of conduct that
corrupts the morals of a minor.
b. The Pennsylvania Rules of Evidence dictate that there
must be a factual basis for each element of a guilty plea.
c. The Commonwealth stated at the guilty plea hearing that
Mr. Rhinehart engaged in a course of conduct with the minor
but failed to state any specific facts detailing that alleged
cours[e] of conduct.
6). When sentencing Mr. Rhinehart, the court failed to adequately
inform him of the elements of the felony charge of corruption of
minors, specifically:
a. The Court failed to articulate the elements of the
corruption of minors charge with respect to the course of
conduct of a sexual nature.
b. The Commonwealth also railed to state any facts to
support the element of a course of conduct that was of a
sexual nature.
7). Was the District Attorney in violation of [Rhinehart’s] 6 th, 5th,
8th, and 14th Amendment right[s] when they withheld a CD with
voicemails that was never turned over to the defense?
Rhinehart’s Br. at “v,” 7-10 (unpaginated) (some capitalization omitted).
Of these issues, only the assertion that plea counsel was ineffective for
failing to prepare (issue number two above) was conceivably raised below.
PCRA counsel listed such a claim in his Finley letter as one of the issues that
Rhinehart asked him to raise. Although Rhinehart filed a response to the Rule
907 notice, neither his Rule 907 response nor any other of his numerous filings
below identified any other issues. Furthermore, his claims of trial error, such
as his sentencing claims, are not cognizable under the PCRA. The only claim
properly before us is Rhinehart’s claim that plea counsel allegedly failed to
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prepare, and he has waived his other claims. We will nonetheless briefly
address his other issues, as they are meritless in any event.
“Our standard of review is well settled.” Commonwealth v. Anderson,
234 A.3d 735, 737 (Pa.Super. 2020). “When reviewing the denial of a PCRA
petition, we must determine whether the PCRA court’s order is supported by
the record and free of legal error.” Id. (quoting Commonwealth v. Smith,
181 A.3d 1168, 1174 (Pa.Super. 2018)).
Rhinehart’s first two issues claim plea counsel was ineffective.
“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 or unknowing plea.” Commonwealth v. Moser, 921
A.2d 526, 531 (Pa.Super. 2007) (quoting Commonwealth v. Hickman, 799
A.2d 136, 141 (Pa.Super. 2002)). To establish ineffectiveness, a petitioner
bears the burden of pleading and proving that “(1) his underlying claim is of
arguable merit; (2) counsel had no reasonable basis for his action or inaction;
and (3) the petitioner suffered actual prejudice as a result.” Commonwealth
v. Spotz, 84 A.3d 294, 311 (Pa. 2014). A defendant who enters a plea of
guilty or no contest is bound by the statements the defendant makes under
oath during a plea colloquy, and the defendant may not later assert grounds
for withdrawing the plea that contradict statements the defendant during the
colloquy. Commonwealth v. Turetsky, 925 A.2d 876, 881 (Pa.Super. 2007).
The record supports the PCRA court’s conclusion that Rhinehart entered
a knowing, voluntary, and intelligent plea. See N.T. at 10-17. Rhinehart has
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never identified anything he alleges plea counsel would have discovered if she
had prepared, such as by reviewing discovery earlier, such that her alleged
failing prejudiced Rhinehart. His allegations that he was disappointed with
counsel’s performance and feared losing at trial, even if true, would not render
his plea involuntary. See Commonwealth v. Myers, 642 A.2d 1103, 1107
(Pa.Super. 1994) (“The mere fact that a defendant was ‘under pressure’ at
the time he entered a guilty plea will not invalidate the plea, absent proof that
he was incompetent at the time the plea was entered”). On his first two issues,
he is due no relief.
Rhinehart next claims his direct appeal counsel was ineffective for
discontinuing his appeal. He argues direct appeal counsel should not have
discontinued the appeal because she knew that he “was under duress due to
being threatened by his accusers, via an associate of his that resides in [the]
same prison as [Rhinehart].” Rhinehart’s Br. at 23.
The PCRA court found Rhinehart’s claim that his appellate counsel was
ineffective without merit, as it was Rhinehart’s decision to discontinue the
appeal. PCRA Ct. Op. at 8. The court noted that Rhinehart sent a pro se letter
to the court, asking for his direct appeal to be withdrawn due to alleged threats
against him.
We agree no relief is due on this claim. As Rhinehart aptly observed in
his letter, it is a defendant’s decision whether to pursue a direct appeal.
Rhinehart presents no authority to support the proposition that an attorney
should go against her client’s wishes when the client is acting in fear of a third
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party. He has thus failed to carry his burden to prove his counsel was
ineffective.
Rhinehart’s remaining issues relate to alleged errors by the trial court
and misconduct by the Commonwealth. Rhinehart claims the court erred in
denying counsel’s request to withdraw, and ignoring Rhinehart’s remarks to
the court regarding his counsel’s deficient performance and his desire for new
counsel. Rhinehart’s Br. at 20-21. He also claims the court erroneously stated
that if he lost at trial, Rhinehart would receive a mandatory sentence of 25
years to life imprisonment. Id. at 21-22. He further argues the court failed to
inform him of the elements of the felony charge of corruption of minors when
sentencing him, and that the Commonwealth failed to state any facts to
support the element of a course of conduct. Id. at 26-30. Finally, Rhinehart
argues the police withheld evidence—a CD with voicemails—that was never
turned over to the defense. Id. at 24-25.
By entering a plea of no contest, Rhinehart waived the ability to raise
any issues except those relating to the jurisdiction of the court, the legality of
the sentence, and the validity of the plea. Commonwealth v. Syno, 791 A.2d
363, 365 (Pa.Super. 2002). To the extent his claims may implicate the validity
of his plea, he waived them by failing to pursue them on direct appeal. See
42 Pa.C.S.A. § 9543(a)(3) (stating PCRA does not provide relief for claims that
have been previously litigated or waived).
After he filed his brief, Rhinehart filed a Motion for an Evidentiary
Hearing, requesting the opportunity to question his trial counsel on her
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ineffectiveness. Rhinehart bore the burden of pleading and proving in the
PCRA court that there was a genuine issue of material fact that warranted an
evidentiary hearing, and he failed to carry this burden. We therefore deny the
Motion. See Commonwealth v. Scott, 752 A.2d 871, 877 n.8 (Pa. 2000)
(“An evidentiary hearing . . . is not meant to function as a fishing expedition
for any possible evidence that may support some speculative claim of
ineffectiveness”).
Order affirmed. Motion for Evidentiary Hearing denied.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/17/2020
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