Com. v. Currie, R.

• Court: Superior Court of Pennsylvania
• Decided: February 25, 2019
• Docket: 2226 EDA 2018
• Status: Unpublished

Opinion

J-S77018-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : RICHARD PHILIP CURRIE : : Appellant : No. 2226 EDA 2018

Appeal from the PCRA Order Entered June 7, 2018 In the Court of Common Pleas of Monroe County Criminal Division at No(s): CP-45-CR-0000794-2016

BEFORE: OTT, J., DUBOW, J., and STRASSBURGER, J.*

MEMORANDUM BY DUBOW, J.: FILED FEBRUARY 25, 2019

Appellant, Richard Philip Currie, appeals pro se from the June 7, 2018

Order entered in the Monroe Count Court of Common Pleas granting in part

and denying in part his first Petition filed pursuant to the Post Conviction Relief

Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546. We affirm.

On November 2, 2016, Appellant entered into a negotiated guilty plea

to two counts of Aggravated Assault, and one count each of Unlawful

Restraint/Serious Bodily Injury, Terroristic Threats with Intent to Terrorize

Another, and Indecent Assault without Consent of Other, arising from a

January 28, 2016 domestic violence incident.1, 2 ____________________________________________

1 18 Pa.C.S. §§ 2702(a)(1); 2702(a)(3); 2902(a)(1); 2706(a)(1); and 3126 (a)(2), respectively.

2 As part of the negotiated plea, the parties agreed that Appellant’s registration period under the Sexual Offender Registration and Notification Act (“SORNA”) would be 15 years. See, e.g., N.T Guilty Plea, 11/1/16, at 14.

____________________________________ * Retired Senior Judge assigned to the Superior Court. J-S77018-18

On January 17, 2017, the court sentenced Appellant to an aggregate

sentence of 36 to 84 months’ incarceration. Appellant’s Indecent Assault

conviction classified him as a Tier II sexual offender, which carries a 25-year

registration and reporting requirements under the Sexual Offender

Registration and Notification Act (“SORNA”).3

On January 27, 2017, Appellant filed a Post-Sentence Motion challenging

the discretionary aspects of his sentence. The trial court denied Appellant’s

Motion on March 1, 2017. Appellant did not file a motion to withdraw his guilty

plea or a direct appeal from his Judgment of Sentence.4

On August 3, 2017, Appellant filed the instant, counselled PCRA

Petition.5 In his Petition, Appellant claimed that his plea counsel had been

ineffective for failing to (1) communicate with him, (2) investigate Appellant’s

case diligently, (3) investigate Appellant’s mental health, and (4) advise

Appellant that he would be sentenced to state prison. He also alleged that

counsel inaccurately advised him that he would have only a 15-year

registration requirement under SORNA. Appellant concluded that, as a result

of counsel’s failures, Appellant entered into an unknowing guilty plea. See

Petition, 8/3/17, at ¶¶ 9-18.

____________________________________________

3 See 42 Pa.C.S. §§ 9799.14(c)(1.3); 9799.15(a)(2).

4Brett J. Riegel, Esquire, represented Appellant through the denial of his Post- Sentence Motion.

5Ashley G. Zimmerman, Esquire, filed Appellant’s PCRA Petition and entered her appearance on August 28, 2017.

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On October 16, 2017, retained counsel filed a Motion to Withdraw

Appearance, which she then withdrew on November 7, 2017. On January 17,

2018, the PCRA court held a hearing on Appellant’s Petition at which Appellant

and his plea counsel testified.

At the conclusion of the hearing, the court directed the parties’ to brief

the issues. In his Brief, Appellant addressed one issue—whether his counsel

and the Commonwealth had induced him into pleading guilty on the false

representation that he would be subject only to a 15-year SORNA registration

period. He emphasized that, at the time he entered his guilty plea, his counsel

had advised him, and both the Commonwealth and the court stated on the

record, that he would be subject to a 15-year SORNA registration period. See

N.T. Guilty Plea Hearing, 11/1/16, at 14.

On June 6, 2018, the court entered an Order granting in part and

denying in part Appellant’s PCRA Petition. In particular, the court denied

Appellant’s claim that his plea counsel had been generally ineffective.

However, the court found that Appellant had entered into his guilty plea with

the understanding that he would be subject to a 15-year reporting

requirement under SORNA as negotiated between plea counsel and the

Commonwealth. Opinion, 6/6/18, at 15-16. The court concluded that to

subject Appellant to the statutory 25-year registration period “would be

denying [Appellant] the ‘benefit of his bargain’ and may be construed as

unknowing or involuntarily plea.” Id. at 16. Thus, the court ordered that

Appellant register as a Tier I sexual offender subject to a 15-year reporting

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requirement. In so doing, the court “fashion[ed] a remedy which [allowed

Appellant] to keep the benefit of his bargain.” Id.

On June 29, 2018, PCRA counsel re-filed her Motion to Withdraw as

Counsel.

On July 5, 2018, Appellant filed a pro se Notice of Appeal and Motion to

Proceed Pro Se.6 On July 27, 2018, the PCRA court held a hearing pursuant

to Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998). Following the

Grazier hearing, the court permitted counsel to withdraw and Appellant to

proceed pro se.

Appellant raises the following three issues on appeal:

1. Plea counsel was constitutionally ineffective when he misrepresented the consequences attached to [] Appellant’s guilty plea facilitating entry of an unknowing, involuntary, or intelligent plea.

2. Counsel abandoned his trial strategy by concentrating an effort to coerce [] Appellant to enter into a guilty plea.

3. Prejudice should be cumulated due to counsel’s multiple instances of argumental negligence.

Appellant’s Brief at 4.

Standard/Scope of Review

We review the denial of a PCRA Petition to determine whether the record

supports the PCRA court’s findings and whether its order is otherwise free of

legal error. Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014). This

Court grants great deference to the findings of the PCRA court if the record

6 Both Appellant and the PCRA court complied with Pa.R.A.P. 1925.

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supports them. Commonwealth v. Boyd, 923 A.2d 513, 515 (Pa. Super.

2007). We give no such deference, however, to the court’s legal conclusions.

Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012).

Ineffective Assistance of Counsel

The law presumes counsel has rendered effective assistance.

Commonwealth v. Rivera, 10 A.3d 1276, 1279 (Pa. Super. 2010). “[T]he

burden of demonstrating ineffectiveness rests on [A]ppellant.” Id. To satisfy

this burden, Appellant must plead and prove by a preponderance of the

evidence that: “(1) his underlying claim is of arguable merit; (2) the particular

course of conduct pursued by counsel did not have some reasonable basis

designed to effectuate his interests; and, (3) but for counsel’s ineffectiveness,

there is a reasonable probability that the outcome of the challenged

proceeding would have been different.” Commonwealth v. Fulton, 830 A.2d

567, 572 (Pa. 2003). Failure to satisfy any prong of the test will result in

rejection of the appellant’s ineffective assistance of counsel claim.

Commonwealth v. Jones, 811 A.2d 994, 1002 (Pa. 2002).

In his first issue, Appellant claims that his plea counsel was ineffective

because he failed to advise Appellant that the Indecent Assault charge to

which Appellant pleaded guilty carried with it a 25-year SORNA registration

period. Appellant’s Brief at 14. He avers that, consequently, he entered his

plea unintelligently and he should be permitted to withdraw it. Id. at 20.

“[A] plea of guilty will not be deemed invalid if the circumstances

surrounding the entry of the plea disclose that the defendant had a full

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understanding of the nature and consequences of his plea and that he

knowingly and voluntarily decided to enter the plea.” Commonwealth v.

Fluharty, 632 A.2d 312, 315 (Pa. Super. 1993). “Our law presumes that a

defendant who enters a guilty plea was aware of what he was doing. He bears

the burden of proving otherwise.” Commonwealth v. Pollard, 832 A.2d

517, 523 (Pa. Super. 2003) (internal citation omitted). The entry of a

negotiated plea is a “strong indicator” of the voluntariness of the plea.

Commonwealth v. Myers, 642 A.2d 1103, 1106 (Pa. Super. 1994).

The PCRA court considered this claim and concluded that Appellant

knowingly and voluntarily entered his guilty plea. PCRA Ct. Op., 6/7/17, at

12. The court found that the record demonstrated that Appellant “knew and

understood the nature of the charges and he represented to the [c]ourt that

it was his decision to enter into the guilty plea.” Id.

Our review of the record indicates that, at the time Appellant entered

his guilty plea, the court conducted a lengthy and thorough colloquy, which

evidenced, inter alia, Appellant’s understanding of the charges to which he

was entering guilty pleas, the sentences he faced, and, significantly, that he

would be subject to a registration period as a sexual offender pursuant to

SORNA. N.T. Guilty Plea, 11/1/16, at 4-10, 11-14.

To the extent that Appellant’s challenge is based specifically on the 25-

year reporting requirement, it is moot. In partially granting PCRA relief, the

PCRA court concluded that Appellant had reasonably relied on the

representations of his counsel and the Commonwealth regarding a 15-year

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SORNA registration period when he entered his guilty plea. The court, thus,

ordered that Appellant register as a Tier I sexual offender subject to a 15-year

SORNA registration period in order for Appellant to obtain the benefit of his

bargain.

In his second issue, Appellant claims that his plea counsel was

ineffective because “counsel abandoned his trial strategy long before []

Appellant made the decision to plead guilty.” Appellant’s Brief at 23.

Appellant asserts that his counsel’s (1) admission that he “finely tuned”

Appellant’s plea; (2) representation at Appellant’s PCRA hearing that he

served witness subpoenas, which Appellant alleges his case file contradicts;

and (3) failure to interview and prepare witnesses, indicate counsel’s intent to

induce Appellant into waiving his constitutional rights for counsel’s benefit.

Id. at 24-25.

In determining that Appellant’s plea counsel had rendered effective

assistance, the PCRA court noted that counsel testified credibly that he had

communicated with Appellant throughout the pre-trial process, met with

Appellant prior to the preliminary hearing, and filed an omnibus pretrial

motion. PCRA Ct. Op. at 6. The court also found credible counsel’s testimony

that he had reviewed potential mitigating factors with Appellant, including his

mental health issues, his veteran status, and his alcoholism; conducted

discovery; discussed with Appellant the applicable guidelines sentence ranges;

and reviewed many plea offers that the Commonwealth presented with

Appellant. Id. at 6-7.

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There is nothing in the record to substantiate Appellant’s bald accusation

that counsel had an alleged self-serving motivation for presenting the

Commonwealth’s plea offers to him. Likewise, nothing in the record

undermines the court’s conclusion that counsel credibly testified that he

diligently represented Appellant. Our review of the record, in fact, confirms

the PCRA court’s conclusion that counsel rendered effective assistance in

representing Appellant. This second ineffectiveness claim, thus, fails to garner

relief.

In his final issue, Appellant claims that, even if this Court concludes that

his first two issues lack merit, when the two issues are considered together

they rise to a level of prejudice that warrants relief. Appellant’s Brief at 36

citing Commonwealth v. Johnson, 966 A.2d 523, 532 (Pa. 2009)

(explaining that “if multiple instances of deficient performance are found, the

assessment of prejudice properly may be premised upon cumulation.”). We

disagree.

As noted above, Appellant failed to identify “multiple instances” of

deficient performance on the part of his counsel. He likewise failed to

demonstrate that his counsel’s performance resulted in any prejudice to him.

Rather, the record established that Appellant entered into his plea knowingly

and intelligently. Moreover, following consideration by the PCRA court, the

court reduced the length of his SORNA registration period in accordance with

the bargain he struck with the Commonwealth. Thus, this claim warrants no

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Order affirmed. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 2/25/19

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