Commonwealth v. McKinley

11 Pa. D. & C.5th 230
CourtPennsylvania Court of Common Pleas, Crawford County
DecidedFebruary 2, 2010
Docketno. CR 690-2006
StatusPublished

This text of 11 Pa. D. & C.5th 230 (Commonwealth v. McKinley) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Crawford County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. McKinley, 11 Pa. D. & C.5th 230 (Pa. Super. Ct. 2010).

Opinion

SPATARO, J,

We now address petitioner’s amended petition for post-conviction collateral relief following an evidentiary hearing. As part of a plea deal with the Commonwealth, the petitioner, Deborah McKinley, plead guilty to eight counts of theft by unlawful taking, 18 Pa.C.S. §3921(a), and agreed to pay $850,000 in restitution. She was sentenced on April 10,2007. Petitioner filed a motion for reconsideration of her sentence, and an amended motion for reconsideration of her sentence, both of which were denied. Petitioner filed a timely appeal to the Superior Court of Pennsylvania, arguing that her sentence was excessive, and on February 22, 2008, the Superior Court affirmed this court’s sentence. Petitioner filed a pro se petition for allowance of appeal with the Supreme Court of Pennsylvania, which was denied. On February 20, 2009, petitioner filed a pro se petition for post-conviction [232]*232collateral relief, followed by an amended petition of the same filed by appointed counsel, Daniel A. Durst, on May 15,2009.

This court held a rule to show cause hearing and subsequently scheduled an evidentiary hearing in its order of September 2, 2009, where we narrowed the issue to be addressed to the following:

“Whether petitioner’s trial counsel, M. Dan Mason, Esquire, was ineffective for allegedly failing to take into account the possible application of the statute of limitations and failing to discuss the timeliness of the charges with petitioner?”

Petitioner argues that her plea was invalid because the statute of limitations defense was waived without petitioner’s consent. Petitioner seeks an order vacating her sentence due to ineffectiveness of counsel and to be re-sentenced, or have an order entered vacating her sentence with respect to Counts I and II in the criminal information; neither of which are remedies allowed by the Post Conviction Relief Act. 42 Pa.C.S. §9541 et seq.

In order to obtain post-conviction collateral relief, a petitioner must demonstrate by a preponderance of the evidence, the following:

“(1) That the petitioner has been convicted of a crime under the laws of this Commonwealth and is at the time relief is granted:

“(i) Currently serving a sentence of imprisonment, probation or parole for the crime;...

“(2) That the conviction or sentence resulted from one or more of the following:...

[233]*233“(ii) Ineffective assistance of counsel which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place....

“(3) That the allegation of error has not been previously litigated or waived.

“(4) That the failure to litigate the issue prior to or during trial, during unitary review or on direct appeal could not have been the result of any rational, strategic or tactical decision by counsel.” 42 Pa.C.S. §9543.

To prevail on this claim of ineffective assistance of counsel, the petitioner must be able to overcome the presumption that counsel was competent by showing that:

“(1) [petitioner’s] claim is of arguable merit;

“(2) the particular course of conduct pursued by counsel did not have some reasonable basis designed to effectuate [her] interests; and

“(3) but for counsel’s ineffectiveness, there is a reasonable probability that the outcome of the challenged proceedings would have been different.” Commonwealth v. Hammond, 953 A.2d 544, 556 (Pa. Super. 2008).

Petitioner’s failure to satisfy any one of the three prongs of this test requires that the claim for ineffective assistance of counsel be rejected. Hammond, 953 A.2d at 556. The Pennsylvania Superior Court has discussed ineffective assistance of counsel in the context of entering a plea as follows:

“ ‘A criminal defendant has the right to effective counsel during a plea process as well as during trial.’ Com[234]*234monwealth v. Hickman, 799 A.2d 136, 141 (Pa. Super. 2002). ‘The law does not require that appellant be pleased with the outcome of his decision to enter a plea of guilty[.] ’ Commonwealth v. Diaz, 913 A.2d 871, 873 (Pa. Super. 2006). (citation omitted) Instead, ‘the defendant must show that counsel’s deficient stewardship resulted in a manifest injustice, for example, by facilitating entry of an unknowing, involuntary, or unintelligent plea.’ Commonwealth v. Morrison, 878 A.2d 102, 105 (Pa. Super. 2005). ‘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. Lynch, 820 A.2d 728, 732 (Pa. Super. 2003). (citation omitted) Therefore, ‘[a]negations 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.’ Commonwealth v. Allen, 557 Pa. 135, 732 A.2d 582, 587 (1999).” Commonwealth v. Bedell, 954 A.2d 1209, 1212 (Pa. Super. 2008).

Furthermore, in order for petitioner to show that she was prejudiced, it must be demonstrated that it is “reasonably probable that, but for counsel’s errors, [s]he would not have pleaded guilty and would have gone to trial.” Commonwealth v. Hickman, 799 A.2d 136, 141 (Pa. Super. 2002), citing Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985).

Petitioner claims that her plea was unknowing because her trial counsel failed to discuss the timeliness of the charges with her and did not inform her that two of the counts she was pleading to were barred by the statute of [235]*235limitations. Petitioner’s charges arose from the embezzlement of funds from the personal care home, Quality Living Center of Crawford County, where she was employed. The Quality Living Center is a non-profit corporation that provides a residence to low-income citizens, primarily senior citizens, who require care in an assisted living facility. Between the years of 1999 and 2006, petitioner embezzled money from the operating funds of the facility, and personal allowance accounts of the residents, while destroying and altering records to cover up her activities. Petitioner was estimated to have embezzled over $ 1,000,000 from the Quality Living Center during the course of her employment.

Petitioner was arrested and charged with nine counts of theft by unlawful taking, two counts of forgery, two counts of tampering with records, and two counts of state income tax evasion. Her counsel at the time, Attorney M.

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Related

Hill v. Lockhart
474 U.S. 52 (Supreme Court, 1985)
Commonwealth v. Hickman
799 A.2d 136 (Superior Court of Pennsylvania, 2002)
Commonwealth v. Diaz
913 A.2d 871 (Superior Court of Pennsylvania, 2006)
Commonwealth v. Morrison
878 A.2d 102 (Superior Court of Pennsylvania, 2005)
Commonwealth v. Stover
538 A.2d 1336 (Supreme Court of Pennsylvania, 1988)
Commonwealth v. Hammond
953 A.2d 544 (Superior Court of Pennsylvania, 2008)
Commonwealth v. Lynch
820 A.2d 728 (Superior Court of Pennsylvania, 2003)
Commonwealth v. Walker
444 A.2d 1228 (Superior Court of Pennsylvania, 1982)
Commonwealth v. Allen
732 A.2d 582 (Supreme Court of Pennsylvania, 1999)
Commonwealth v. Bartrug
732 A.2d 1287 (Superior Court of Pennsylvania, 1999)
Commonwealth v. Bedell
954 A.2d 1209 (Superior Court of Pennsylvania, 2008)

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Bluebook (online)
11 Pa. D. & C.5th 230, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-mckinley-pactcomplcrawfo-2010.