Commonwealth v. Schmuck

561 A.2d 1263, 385 Pa. Super. 617, 1989 Pa. Super. LEXIS 2188
CourtSuperior Court of Pennsylvania
DecidedJuly 17, 1989
DocketNo. 00678
StatusPublished
Cited by5 cases

This text of 561 A.2d 1263 (Commonwealth v. Schmuck) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Schmuck, 561 A.2d 1263, 385 Pa. Super. 617, 1989 Pa. Super. LEXIS 2188 (Pa. Ct. App. 1989).

Opinions

HESTER, Judge:

This appeal is from an order entered September 20, 1988, which denied the June 20, 1988 PCHA petition filed by appellant, John C. Schmuck. We affirm.

On August 14, 1985, appellant supplied a fifteen-year-old boy with beer, took him to a hotel, and performed fellatio on him. Appellant was arrested on August 22, 1985, and charged with involuntary deviate sexual intercourse, cor[619]*619ruption of minors, indecent assault, and furnishing malt or brewed beverages to a minor. Prior to the preliminary hearing, he conferred with his attorney. In adjudicating appellant’s direct appeal, we found that during that conference, his attorney explained the nature of the charges and sentencing possibilities, including the mandatory minimum sentence of five years for involuntary deviate sexual intercourse under 42 Pa.C.S. § 9718(a). Commonwealth v. Schmuck, 369 Pa.Super. 652, 531 A.2d 528 (1987).

Appellant decided to plead not guilty, demanding a jury trial. He was found guilty of all charges. Following the trial, he retained new counsel and filed post-trial motions alleging trial counsel’s ineffectiveness. Following denial of those motions on September 2, 1986, appellant received the mandatory five-to-ten-year sentence for involuntary deviate sexual intercourse and a concurrent one-year sentence for corrupting the morals of a minor. We affirmed on direct appeal. Commonwealth v. Schmuck, id.

In that appeal, appellant alleged that trial counsel rendered ineffective assistance, among other things, by failing to advise him of the five-year mandatory minimum sentence for involuntary deviate sexual intercourse. We determined that the claim had no merit, ruling that the attorney had informed appellant of the mandatory sentence under 42 Pa.C.S. § 9718.

In this appeal, appellant’s sole contention is that all prior counsel were ineffective for failing to raise the applicability of Commonwealth v. Leonhart, 358 Pa.Super. 494, 517 A.2d 1342 (1986), petition for allowance of appeal denied, 515 Pa. 620, 531 A.2d 428 (1987), to this action.

Appellant contends that he was denied effective assistance of counsel when they failed to raise, in post-verdict motions and on appeal, the Commonwealth’s lack of notice of its intent to proceed under 42 Pa.C.S.A. § 9718 (mandatory five-year sentence) in the event that Schmuck was convicted. Appellant asserts that failure of the Commonwealth to provide him, prior to trial, with a written notice of their intention to seek the mandatory five-year sentence deprived [620]*620him of his right to intelligently weigh the alternatives of going to trial versus negotiating a plea. He argues that counsel was ineffective for failing to object to the lack of such notice.

The supreme court of this Commonwealth has recently reviewed the well-established standard of review with respect to claims of ineffectiveness of counsel. In Commonwealth v. Hentosh, 520 Pa. 325, 554 A.2d 20 (1989), the supreme court stated:

Approaching our task of determining whether counsel’s assistance was effective we initially presume that it was. Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987); Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967). Then, in analyzing a defendant’s claim, we examine whether the claimant’s allegations are possessed of arguable merit. Pierce, supra; Commonwealth v. Stoyko, 504 Pa. 455, 475 A.2d 714 (1984); Maroney, supra. We next determine whether of the alternatives available to counsel in presenting the defense those chosen were possessed of a reasonable basis in effecting his client’s interests. Id.; Commonwealth v. Wade, 501 Pa. 331, 461 A.2d 613 (1983). Assuming positive resolution of both inquiries above, we require finally that the claimant demonstrate how the asserted ineffectiveness prejudiced his cause. Pierce, supra; Commonwealth v. Clemmons, 505 Pa. 356, 479 A.2d 955 (1984); Commonwealth v. Vogel, 501 Pa. 314, 461 A.2d 604 (1983), cert. den’d, 465 U.S. 1104, 104 S.Ct. 1603, 80 L.Ed.2d 133 (1984).
In conducting this analysis it is important to bear in mind that allegations of the deprivation of the right to effective representation of counsel are not self-sustaining. The burden of proof of the allegations remains with the claimant, their accuracy still to be established by his submission of relevant proofs. Commonwealth v. McNeil, 506 Pa. 607, 487 A.2d 802 (1985); Commonwealth v. Miller, 494 Pa. 229, 431 A.2d 233 (1981); Commonwealth v. Shore, 487 Pa. 534, 410 A.2d 740 (1980); [621]*621Commonwealth v. Logan, 468 Pa. 424, 364 A.2d 266 (1976); Maroney, supra.

Id., 520 Pa. at 334, 554 A.2d at 24.

Appellant argues that Commonwealth v. Leonhart, supra, supports his allegation that the Commonwealth had a duty to inform him, prior to trial, that it intended to seek the imposition of the mandatory minimum sentence in the event he was convicted. In Leonhart, the defendant pled guilty to involuntary deviate sexual intercourse with a person less than sixteen years of age and corruption of minors. He was not given notice of the applicability of 42 Pa.C.S. § 9718, which imposed a mandatory minimum sentence of five years, until sentencing. The defendant in Leonhart sought to withdraw his guilty plea, due to the fact that the Commonwealth’s failure to notify him of the applicability of section 9718 prior to submission of his plea resulted in the plea being involuntary and not knowingly tendered. This court held that section 9718 requires that such notice be given prior to the entry of a guilty plea. As a result, the defendant was permitted to withdraw his plea and proceed to trial by jury.

As we noted in Leonhart, section 9718 sets forth no provision concerning the notice required to be given defendants. We there further observed that other statutes in the mandatory sentencing scheme — offenses committed with firearms, 42 Pa.C.S.A. § 9712, offenses committed on public transportation, 42 Pa.C.S.A. § 9713, and second and subsequent offenses, 42 Pa.C.S.A. § 9714 — which carry the same five year minimum sentence as does Section 9718, have been interpreted so as to require that notice be given to the defendant of their application following conviction and before sentencing. See Commonwealth v. Shaffer, 498 Pa. 342, 446 A.2d 591 (1982); Commonwealth v. Reagan, 348 Pa.Super. 589, 502 A.2d 702 (1985); Commonwealth v.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Com. v. Lino, K.
Superior Court of Pennsylvania, 2023
Commonwealth v. Boyles
606 A.2d 1201 (Superior Court of Pennsylvania, 1992)
Commonwealth v. Zorn
580 A.2d 8 (Superior Court of Pennsylvania, 1990)
Commonwealth v. Rasheed
572 A.2d 1232 (Supreme Court of Pennsylvania, 1990)

Cite This Page — Counsel Stack

Bluebook (online)
561 A.2d 1263, 385 Pa. Super. 617, 1989 Pa. Super. LEXIS 2188, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-schmuck-pasuperct-1989.