Com. v. Newman, H. (memorandum)

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J-S18013-14 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, Appellee v. HARRIS NEWMAN, Appellant : : : : : : : : : IN THE SUPERIOR COURT OF PENNSYLVANIA No. 1535 EDA 2013 Appeal from the PCRA Order Entered April 24, 2013, In the Court of Common Pleas of Bucks County, Criminal Division, at No. CP-09-CR-0001509-2011. BEFORE: SHOGAN, JENKINS and PLATT*, JJ. MEMORANDUM BY SHOGAN, J.: FILED JULY 02, 2014 Appellant, Harris Newman, appeals from the order denying his petition for collateral relief filed pursuant to the Post Conviction Reli 42 Pa.C.S.A. §§ 9541 9546. We affirm. The PCRA Court summarized the procedural history of this case as follows: On May 11, 2011, [Appellant] pled nolo contendere to three counts of conspiracy to provide a controlled substance to a drug dependent person, six felony counts of improper administration of a controlled substance by a practitioner, and six felony counts of delivery or possession with intent to deliver On June 17, 2011, the [c]ourt a controlled substance.[1] *Retired Senior Judge assigned to the Superior Court. 1 On May 9, and 10, 2011, the Commonwealth provided notice of its intent to seek mandatory minimum sentences pursuant to 18 Pa.C.S.A. § 7508 for Counts 10 15. Notice of Mandatory Minimum Sentence, 5/9/11 and 5/10/11. J-S18013-14 sentenced [Appellant] to concurrent sentences of 7 ½ years to 15 years in prison on counts 10, [and] 12 15, a concurrent term of not less than 3 years nor more than 10 years on count 11, and a consecutive 10 years of probation on Counts 1 6.[2] No motion for reconsideration of sentence or appeal was subsequently filed. [Appellant] filed a timely pro se PCRA Petition on January 5, 2012. 2 The record certified to us on appeal contains an order dated June 3, 2013, and entered on June 4, 2013, which was subsequent to the instant notice of appeal and which provides as follows: AND NOW, this 3rd day of June, 2013, pursuant to and obvious errors in sentencing, it is hereby ORDERED and follows: probation under each of Counts 2, 3, 5 and 6 shall be vacated; probation under each of Counts 1 and 4 shall remain effective, and shall remain concurrent to one another; and (3) No further penalty shall be imposed on Counts 2, 3, 5 and 6. Order, 6/4/13, at 1. At the February 19, 2013 PCRA hearing, the Commonwealth acquiesced in Appe relating to the concurrent ten-year probationary periods imposed for counts two, three, five, and six. N.T., 2/19/13, at 5 6. At that time, the PCRA court advised that it intended to amend the sentence to correct the error at an unspecified later date. Id. at 9. In its Rule 1925(a) opinion, the PCRA court noted that in light of its -day statutory limit order dated June 3, 2013. No issue has been raised related to this sentence correction. -2- J-S18013-14 [Appellant] was appointed counsel. Private counsel was later retained and filed an Amended PCRA Petition on November 13, 2012.[3] The Commonwealth filed an Answer to the Amended PCRA Petition on December 4, 2012. A hearing PCRA Court Opinion, 8/13/13, at 1. We glean the underlying facts of the crimes from the plea transcript. At the May 11, 2011 plea colloquy, the Commonwealth asserted the following factual claims as the basis of the nolo contendere plea: individuals who participated in a smuggling ring involving buprenorphine, which is generic Suboxone, operating in Bucks County, Pennsylvania, and Stacey Coffey, a patient of Appellant, in exchange for sexual favors; April 17, 2010; (3) Five days before Stacey Coffey, begged Appellant not to write Stacey any more prescriptions because Stacey previously had overdosed twice using prescription medications; (4) The day after Hailey warned Appellant, Appellant prescribed Stacey Percocet, Valium, Elavil, Zoloft, and Soma; (5) On April 14 and 15, 2010, Stacey filled prescriptions for zolpidem, known as Ambien, and carisoprodol, generic Soma; one for diazepam, known as Valium, and the other for Soma, 3 It appears the delay between the filing of the pro se PCRA petition in January 2012 and the counseled, amended petition in November 2012 was due to the appointment and subsequent withdrawal of at least three entry of appearance on June 22, 2012. -3- J-S18013-14 (7) Appellant admitted that he prescribed narcotics to persons in patients; (8) C-2 told police that she became pregnant by Appellant, who gave her $40 for an abortion; (9) Roderick Muir, who received controlled substances from C-2, stabbed his six-year-old son while in a delusional state brought on by withdrawal from such medications; and eds, if not thousands, of illegitimate N.T., 5/11/11, at 21 26. Appellant filed a notice of appeal on May 8, 2013. Both the PCRA court and Appellant complied with Pa.R.A.P. 1925.4 Appellant raises the following issues on appeal: I. Were trial counsel ineffective and did the PCRA Court err by failing to so hold where counsel: A. sentencing leniency, and especially for failing claims relating to conduct over and above the criminal acts actually charged? B. Failed to dispel, and actually created the incorrect impression that [Appellant] was unwilling to accept responsibility for his actions 4 The PCRA court ordered Appellant to file a concise statement pursuant to Pa.R.A.P. 1925(b) within twenty-one days of May 17, 2013. Appellant filed a pro se 2013. Amended Statement of Errors Complained of on Appeal Pursuant to Pa.R.A.P. 1925(b), 7/12/13, at 1. -4- J-S18013-14 and had not experienced remorse for the effects of those actions upon his victims? C. Ineffectively advised [Appellant] against filing a motion for reconsideration of sentence and appeal, and ineffectively failed to file same when request to do so by [Appellant]? counsel was ineffective for advising Appellant to enter a nolo contendere testimony at sentencing. We initially address the first two issues together. Our standard of review of an order denying PCRA relief is whether the findings of the PCRA court are supported by the record and are free of legal error. Commonwealth v. Spotz, 18 A.3d 244, 259 (Pa. 2011); Commonwealth v. Hernandez, 79 A.3d 649, 651 (Pa. Super. 2013). It is his conviction or sentence resulted from one or more of the enumerated circumstances found in determinations, when supported by the record, are binding on this Court. Spotz, 18 A.3d at 259. Appellant asserts ineffective assistance of counsel pursuant to 42 Pa.C.S.A. § 9543(a)(2)(ii). Counsel is presumed effective, and Appellant Commonwealth v. Koehler, 36 A.3d 121, at 132 (Pa. 2012). -5- To rebut that presumption, J-S18013-14 the deficiency prejudiced him. Strickland v. Washington, 466 U.S. 668, 687 691 (1984). Our Supreme Court has characterized the Strickland standard as tripartite. Commonwealth v. Pierce, 527 A.2d 973, 975 (Pa. 1987). Thus, to prove ineffective assistance of counsel, Appellant must performance lacked an objective reasonable basis; and (3) Appellant was Koehler, 36 A.3d at 132. Moreover, counsel cannot be deemed ineffective for failing to raise a meritless claim. Commonwealth v. Harris, 852 A.2d 1168, 1173 (Pa. 2004). assistance is deemed constitutionally effective if he chose a particular course Koehler, 36 A.3d at 132 (quoting Commonwealth v. Colavita, 993 A.2d there is a reaso Commonwealth v. Ly, 980 A.2d 61, 73 (Pa. 2009). A court is not required to analyze the elements for a claim of ineffective counsel in an fails under any necessary element of the Strickland test, the court may -6- J-S18013-14 Koehler, 36 A.3d at 132. When there is an unjustified failure by counsel to file a requested direct appeal, the prejudice prong has been met. Commonwealth v. Lantzy, 736 A.2d 564 (Pa. 1999). Finally, a claim of ineffectiveness for failing to file a post-sentence motion is separate and distinct from a claim that counsel was ineffective for failing to file a requested appeal. Commonwealth v. Liston, 977 A.2d 1089 (Pa. 2009). Allegations of ineffectiveness in connection with the entry of a guilty plea5 will serve as a basis for relief only if the ineffectiveness caused the defendant to enter an involuntary or unknowing plea. Commonwealth v. Wah [the appellant] be pleased with the outcome of his decision to enter a plea of guilty: All that is required is that his decision to plead guilty be knowingly, v Commonwealth v. Anderson, 995 A.2d 1184, 1192 (Pa. Super. 2010). Moreover, with regard to the prejudice prong of the ineffectiveness, where an appellant has entered a guilty plea, 5 nolo contendere is treated the Commonwealth v. Kepner, 34 A.3d 162, 166 n.2 (Pa. Super. 2011) (citing Commonwealth v. Lewis, 791 A.2d 1227, 1230 (Pa. Super. 2002)). -7- J-S18013-14 Commonwealth v. Timchak, 69 A.3d 765, 770 (Pa. Super. 2013) (citing Commonwealth v. Rathfon, 899 A.2d 365, 370 (Pa. Super. 2006)). Appellant seeks an order vacating his sentence and imposing a Appellant argues that as a result cable mandatory Id. to the sentencing court that Appellant did not take responsibility for his actions by: (1) recommending a nolo contendere plea instead of a guilty plea, (2) failing testifying on his own behalf, and (4) failing to assist Appellant in conveying 42.6 6 cognizable under the PCRA. See 42 Pa.C.S.A. § 9543(a)(2)(vii); [Commonwealth v.] Evans, [866 A.2d 442,] 445 445 [(Pa. Super. 200 Commonwealth v. Fowler, 930 A.2d 586, 593 (Pa. Super. 2007). Cf. Commonwealth v. Taylor, 65 A.3d 462, 467 (Pa. Super. 2013) (bald discretionary sentencing challenges are not cognizable under PCRA) (citing Evans and Commonwealth v. Guthrie, 749 A.2d 502 (Pa. Super. 2000)). Moreover, as the Commonwealth points out, any direct challenges to the discretionary aspects of sentence were waived in this case because they were not raised and preserved in a post-sentence motion or on direct appeal. Commonwealth v. Tirado, 870 A.2d 362, 365 (Pa. Super. 2005) (issues challenging discretionary aspects of sentence must be raised in postsentence motion or by presenting claim to trial court during the sentencing). -8- J-S18013-14 Our review of the record reveals that Appellant admitted that he understood he was facing imposition of mandatory minimum sentences. N.T., 2/19/13, at 42. He testified that he told plea counsel that he did not Id. at 43. Appellant testified that in the five or six meetings with plea counsel prior to entry of the plea, plea counsel discussed the factors and he sentence[.] Id. at 41, 43. Plea counsel, William L. Goldman, who has thirty-nine years of experience in criminal law, N.T., 2/19/13, at 62, testified at the PCRA hearing. He explained the significant and lengthy contacts and meetings with Appellant involving at least three lawyers from his firm assigned to [W]e had various meetings with [Appellant] preparing the case, preparing the preliminary hearing, reviewing the charges, , and what his understanding was of what was going on. We discussed his exposures. We discussed the potential penalties. We discussed the mandatory sentences that were involved. We discussed my discussions with the DA . . . who was assigned to the case. We discussed revelations that he made to Detective Carroll. We discussed his practice, his background, asked him questions about who he was so I could know more about him. Id. at 63 65. Plea counsel testified that Appellant came to their office fift -9- J-S18013-14 Id Id. at 68. Plea counsel described his strategy in the case. He testified that that he admitted exchanging sex for drugs. N.T., 2/19/13, at 69. Further, patien Id. limitations in civil court of a nolo contendere For that Id. Plea counsel further trategy in recommending a plea of nolo contendere versus a guilty plea, as follows: of times that he had sex with, I believe it was women. one of the * * * [W]e had asked [the ADA] in advance to put together the facts that he wanted to read into the record to justify the [guilty] plea. ed them . . . we went over them with [Appellant, who] was having difficulty accepting those and pleading to those. So rather than the plea unraveling, we agreed that day that it would be a nolo contendere plea . . . . * * * -10- J-S18013-14 He was having difficulty the difficulty that [Appellant] had the stand subject to cross-examination, whether it be trial or at the guilty plea. Everything tha And his focus was not on what he did to others. Although designing women, they had a plan, but he had extreme difficulty, in my opinion, of taking the And that was part of why we did the nolo contendere plea. onviction. N.T., 2/19/13, at 70 a guilty plea would not have gone down on May 11th Id sounds more cleansing an Id. at 73. Plea counsel testified that he and Appellant agreed that it would be more advantageous for Appellant not to speak at sentencing. Id. at 74. sentencing, plea counsel underscored that it was his strategy to refer Appellant to Dr. Shanken-Kaye, a forensic psychologist, who prepared a detailed mental health report for the plea court -11- J-S18013-14 and makes people better individuals, gives them insight into who they are and why they eng Id. at 68. We wanted to present [Appellant] to the Court through Dr. Shanken-Kaye, through two esteemed attorneys who knew him, through a husband and wife who knew him, through letters. And then more importantly through Dr. Shanken-Kaye, not only through a report but through live testimony. The belief was that Dr. Shanken-Kaye could advocate better for [Appellant] than he could. Id. at 72. Plea counsel continued: [I]t was our intent, or strategy, to present [Appellant] through witnesses who would discuss who he was to the community, who he was to his patients. It was clear his date of birth it was clear that he had an exemplary background; he had never been in trouble before. All that was clear. We presented the report of Dr. Shanken-Kaye to Judge Finley in advance so he would have that information. . . . .[W]e were going to present [Appellant], not through his testimony on the stand subject to cross-examination, but rather through character references, individuals who had, we believed, high standing in the community, and through a detailed report from Dr. Shanken-Kaye. would hurt your case to have [Appellant] make a statement to the Court expressing re counsel acknowledged that he prepared Appellant prior to his allocution. Id. When given the opportunity to speak, Appellant stated: -12- J-S18013-14 things. I screwed up. I screwed up patients. I should have been aware of their prior history. I should have been aware of what they were really there for and refer them to a psychiatrist or p should have been able to see through this. I put them at risk. I put them at risk. iends. thought I was smarter than this. I thought I was was smarter than this. I just fell from grace. I I thought I I feel that you know, you always wish, wish, wish things were different. I wish things were different, Your Honor. I would hope that you would I would hope that you would N.T., 2/19/13, at 102 103. convincing arguments for sentencing leniency and remorse lack arguable merit. As the PCRA court explained, plea counsel arranged for Appellant to meet with Dr. Shanken-Kaye testified extensively about A the community. N.T., 2/19/13, at 82 93. Counsel arranged for character witnesses to testify in court and solicited letters from others. PCRA Court -13- J-S18013-14 Opinion, 8/13/13, at 14. Counsel emph Id. Moreover, sentencing guidelines direct a judge to impose confinement that is consistent with protection of the public, the gravity of an offense as it relates defendant. 42 Pa.C.S.A. § 9721(b); Commonwealth v. Walls, 926 A.2d 957, 962 (Pa. 2007). A judge may use his own discretion when evaluating mitigating or aggravating factors for sentencing. Commonwealth v. Fullin, 892 A.2d 843, 854 n.4 (Pa. Super. 2006); 24 Pa. Code § 303.13. ]lea him through testimony of the forensic psychologist and various other court noted, this was done to prevent Appellant from testifying due to the Id. (citing N.T., 2/19/13, at 85 86). Moreover, plea counsel was cognizant of the pending civil lawsuit against Appellant. Plea counsel advised Appellant of the limitations of a plea of nolo contendere on that case versus the effect of a guilty plea. Clearly, counsel chose a course that had a reasonable basis -14- J-S18013-14 designed to effectuate Koehler, 36 A.3d at 132. Finally, the PCRA court explicitly found plea counsel to be a credible witness. is supported in the record, it is binding on this Court. Spotz, 18 A.3d at 259. These issues have no merit. counsel to file a motion for reconsideration of sentence and file an appeal, but counsel failed to do so. Amended 1925(b) statement, 7/12/13, at ¶ 3; allegation that plea counsel rendered ineffective assistance of counsel when he failed to file a post-sentence motion challenging the sentence. Phyllis 13, at 10. She testified that she was not Id. at 12 13. s later. N.T., 2/19/13, at 20. While he had no independent recollection of having written a letter to plea counsel, PCRA counsel presented Appellant with a copy of a -15- J-S18013-14 in addition to discussing issues related to the sale of his medical practice. Id. at 24. The parties stipulated that the letter was postmarked on July 15, 2011, which was subsequent to the expiration of the ten-day period for filing a post-sentence motion. Id. at 24. Mr. Goldman testified that after sentencing, he asked Attorney d not have contact with [Appellant] after Plea counsel Rubin testified that he met with Appellant up to twenty times, he gave Appellant his cellular telephone number, and he made nt. N.T., 2/19/13, at 100 101. Mr. Rubin testified that he met with Appellant in Bucks County Correctional Institution on June 23, 2011, which was within the ten-day post-sentence motion period. Id. at 102. Mr. Rubin stated that while he did indeed have Id. Regarding the filing of a post-sentence motion, Mr. Rubin stated: Obviously the issue of the sentence came up, options were instructed nor asked to file a motion. We talked about it and what would be involved. And I absolutely told him that I -16- J-S18013-14 thought it had no chance at all. And I left that meeting fully believing that he was in agreement to not file it. I was never instructed or overtly asked to file the motion did not occur. N.T., 2/19/13, at 104 105. Mr. Rubin testified that he never spoke to Id. at 115. July 11 and 15, 2011. Id. at 116. Damon asked Mr. Rubin to telephone Appellant at Graterford, and Mr. Rubin complied. He described that telephone conversation as follows: no dispute about that. I told [Appellant] how strongly I felt. I reminded him of our prior conversation. I told him that reminded him and he acknowledged it as best as I recall that the appellate rights it. And at the end of the conversation, my very impression and recollection of it is, he agreed to not appeal. I could have filed an appeal on Monday because had a day left. And if [Appellant] had instructed me, I would have sensed that and I would have filed it. strong file an we still think I N.T., 2/19/13, at 116 117. PCRA counsel also asked Mr. Rubin whether he considered filing a petition to modify sentence nunc pro tunc. Mr. Rubin testified that Appellant told him that there was a doctor in Bucks County who was convicted of the -17- J-S18013-14 office, Id. at 118. The Commonwealth inquired regarding the decisions and strategy as described by Plea Counsel Goldman, Mr. Rubin, and Appellant, and Mr. Rubin not he was not a mail-in defendant, if you know what I mean. He was engaged, he understood. He respected our advice and . . . agreed, yeah. We conclude that the record supports that all mitigating evidence was presented, there was no new or additional evidence to present that would have affected the sentence, and that a motion to reconsider the sentence would have been unavailing. The PCRA court found counsel to be credible, seeking reconsideration of the sentence and filing a direct appeal, with 8/13/13, at 19. Thus, Appellant cannot demonstrate arguable merit. Further, Appellant has failed to prove he is entitled to any finding of direct appeal. See Lantzy, 736 A.2d at 572 (counsel provided per se -18- J-S18013-14 ineffectiveness where he unjustifiably failed to file an appeal despite Order affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 7/2/2014 -19-

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