Judges Opinions, — April 12, 2012 11:07 — 0 Comments

Commonwealth of Pennsylvania v. Troy Scott Heist, Jr.

IN THE COURT OF COMMON PLEAS

OF LEBANON COUNTY, PENNSYLVANIA

 

CRIMINAL DIVISION

 

COMMONWEALTH OF                             :

PENNSYLVANIA                                         :

                                                                        :           No. CP-38-CR-0001533-2005

            v.                                                         :

                                                                        :

TROY SCOTT HEIST, JR.,             :

 

ORDER OF COURT

            AND NOW, to wit, this 28th day of December, 2011, upon careful consideration of Defendant’s pro se and Amended Petitions for Post Conviction Collateral Relief, the Commonwealth’s Response thereto, and the record of this case, Defendant is hereby notified that it is the intention of the Court to dismiss his Petitions without a hearing for the reasons set forth in the attached Opinion.  Defendant is afforded twenty (20) days from the date of this Order to file a Response to the proposed dismissal pursuant to Pa.R.Crim.P. Rule 907(1).  Defendant is directed to serve a copy of any Response filed upon the undersigned jurist. 

                                                                                    BY THE COURT:

 

                                                                                    _______________________________, S.J.

                                                                                    Robert J. Eby

 

RJE/jw

 

pc:       District Attorney (Interoffice Mail)

Erin Zimmerer, Esq. (Regular Mail at Montgomery & Zimmerer, 60 South Main Street, Manheim, PA  17545)

            Troy Scott Heist, Jr. (Regular Mail at SCI Forest, Inmate No. GU5647, 286      Woodland Drive, P.O. Box 945, Marienville, PA  16239-0307)      

 

 

IN THE COURT OF COMMON PLEAS

OF LEBANON COUNTY, PENNSYLVANIA

 

CRIMINAL DIVISION

 

COMMONWEALTH OF                             :

PENNSYLVANIA                                         :

                                                                        :           No. CP-38-CR-0001533-2005

            v.                                                         :

                                                                        :

TROY SCOTT HEIST, JR.,             :

 

APPEARANCES:

 

MEGAN E. RYLAND-TANNER, ESQUIRE         For the Commonwealth

Deputy District Attorney

 

ERIN ZIMMERER, ESQUIRE                               For Defendant

Montgomery & Zimmerer

 

OPINION BY EBY, S.J., DECEMBER 28, 2011:

 

Before the Court are Defendant’s pro se and Amended Petitions for Post Conviction Collateral Relief filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. § 9541 et seq.  On September 14, 2005, a Criminal Information was filed charging Defendant with one (1) count each of Involuntary Deviate Sexual Intercourse, Statutory Sexual Assault, Aggravated Indecent Assault, Corruption of Minors and Indecent Assault resulting from Defendant’s alleged unlawful contact with a fourteen (14) year-old victim in March and/or April of 2005.  On March 7, 2006, Defendant entered a negotiated guilty plea regarding the charges lodged against him.[1]  On July 26, 2006, the Court imposed an aggregate sentence of five (5) to ten (10) years’ imprisonment.  Defendant did not file post sentence motions or a direct appeal to the Pennsylvania Superior Court.

On April 18, 2011, Defendant filed his pro se Petition for Post Conviction Collateral Relief.  In his Petition, Defendant seeks relief on the bases that his guilty plea was unlawfully induced, his trial counsel rendered ineffective assistance and his sentence is illegal.  In support of each of these allegations, Defendant argues that he pled guilty under an agreement by which he was to receive a total sentence of five (5) to ten (10) years’ imprisonment to be served in state motivational boot camp.  Defendant alleges that trial counsel told him that he was eligible for the boot camp program.  However, Defendant avers that on his “eligibility date” for boot camp, he was informed that he was not statutorily eligible for boot camp.  Defendant seeks allowance from this Court to proceed “nunc pro tunc” and to attend boot camp or to proceed to trial on the within charges.

On April 19, 2011, we appointed counsel to represent Defendant throughout the PCRA proceedings and issued a Rule upon the Commonwealth to show cause why a hearing should not be held regarding the issues raised in Defendant’s PCRA Petition.  On May 11, 2011, the Commonwealth filed its Response to Defendant’s PCRA Petition asserting that Defendant’s PCRA Petition is untimely and that the allegations of error contained therein do not warrant any relief.  On June 7, 2011, Defendant’s counsel filed an Amended PCRA Petition raising similar allegations of error to those raised in Defendant’s pro se PCRA Petition.[2]

The PCRA provides for an action by which innocent persons convicted of crimes that they did not commit and persons serving illegal sentences may obtain relief.  42 Pa.C.S. § 9542.  To be eligible for relief pursuant to the PCRA, a defendant first must prove that he has been convicted of a crime under the laws of Pennsylvania and that he is serving a sentence of imprisonment, probation or parole for the crime.  Second, he must prove that the conviction resulted from one (1) of the enumerated errors listed in § 9543(a).  Third, he must prove that the failure to litigate the issue prior to or during trial could not have been the result of any rational, strategic or tactical decision by counsel.  Finally, he must prove that the allegation of error has not been previously litigated or waived.  42 Pa.C.S. § 9543(a).

Despite the fact that the legislature in § 9542 specifically designated the PCRA as an avenue for relief only for persons who did not commit the crimes of which they were convicted and persons serving illegal sentences, the PCRA has been held to provide relief to any defendant  who establishes that his or her counsel provided ineffective assistance 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.  Commonwealth v. Anderson, 995 A.2d 1184, 1191 (Pa.Super. 2010), citing Commonwealth v. Turetsky, 925 A.2d 876, 880 (Pa.Super. 2007).  All constitutionally-cognizable ineffectiveness of counsel claims are eligible for relief under the PCRA without regard to a defendant’s innocence, including cases in which a defendant specifically has admitted his or her guilt via the entry of a guilty plea.  Commonwealth v. Lynch, 820 A.2d 728, 732 (Pa.Super. 2003), citing Commonwealth v. Hickman, 799 A.2d 136, 141-142 (Pa.Super. 2002).

As a threshold matter, a defendant has the burden of establishing that the Court has jurisdiction over claims raised in a PCRA petition.  Commonwealth v. Morris, 822 A.2d 684, 692 (Pa. 2003).  In the context of the PCRA, jurisdiction is tied to the filing of a timely petition.  Commonwealth v. Fowler, 930 A.2d 586, 592 (Pa.Super. 2007), citing Commonwealth v. Berry, 877 A.2d 479, 482 (Pa.Super. 2005).  Any PCRA petition, including a second or subsequent petition, must be filed within one (1) year of the date the judgment becomes final.  42 Pa.C.S. § 9545(b)(1).  A judgment becomes final for purposes of the PCRA at the conclusion of direct review, including discretionary review in the Pennsylvania or the United States Supreme Courts, or at the expiration of time for seeking such review.  § 9545(b)(3).

In this case, Defendant was sentenced on July 26, 2006.  Defendant did not file post sentence motions or a direct appeal to the Pennsylvania Superior Court.  Accordingly, Defendant’s judgment became final at the expiration of time for seeking direct review in the Pennsylvania Superior Court.  Pa.R.A.P. Rule 903(a) provides that a notice of appeal must be filed within thirty (30) days after the entry of the order from which the appeal is taken.  Therefore, Defendant had thirty (30) days from the date he was sentenced on July 26, 2006, or until August 25, 2006, to file a timely notice of appeal to the Pennsylvania Superior Court.  From that date, Defendant had one (1) year, or until August 27, 2007, to file a timely PCRA petition.  Defendant did not file his pro se PCRA Petition until April 18, 2011, more than three and one-half (3 ½) years after the time for the presentation of a timely PCRA petition had expired.  As asserted by the Commonwealth, Defendant’s PCRA Petition is untimely.

There are statutory exceptions to the one (1) year time limitation that will confer jurisdiction upon the court to consider an otherwise untimely PCRA petition.  Commonwealth v. Blackwell, 936 A.2d 497, 500 (Pa.Super. 2007), citing § 9545(b)(1)(i)-(iii).  An otherwise untimely PCRA petition will be allowed to proceed despite its untimeliness if the defendant pleads and proves that one (1) of the following exceptions is applicable:

(i) the failure to raise the claim previously was the result of interference by government officials with the presentation of the claim in violation of the Constitution or laws of this Commonwealth or the United States;

 

(ii)  the facts upon which the claim is predicated were unknown to the petitioner and could not have been ascertained by the exercise of due diligence; or

 

(iii)  the right asserted is a constitutional right that was recognized by the United States Supreme Court or the Pennsylvania Supreme Court after the time period provided in this section and has been held by that court to apply retroactively.

 

42 Pa.C.S. § 9545(b)(1).  The defendant bears the burden of alleging and proving that one of the statutory exceptions applies.  Commonwealth v. Garcia, 2011 WL 2420229 * 3 (Pa.Super. 2011), citing Commonwealth v. Leggett, 16 A.3d 1144, 1146 (Pa.Super. 2011).  A defendant seeking to invoke any of the statutory exceptions must file his or her petition within sixty (60) days of the date when the claim first could have been presented.  Commonwealth v. Howard, 788 A.2d 351, 354 (Pa. 2002), citing § 9545(b)(2).

Through Defendant’s request to proceed “nunc pro tunc,” Defendant apparently recognizes that his PCRA Petition is untimely.  However, in neither his pro se nor his Amended PCRA Petition does Defendant assert that any of the above-stated statutory exceptions are applicable to confer jurisdiction upon the Court to consider his untimely Petition or any facts that arguably could support any of the statutory exceptions.  No facts in the record support an assertion that any governmental officials interfered with Defendant’s ability to present his claims for relief in a timely petition or that Defendant’s claims are based upon a constitutional right recognized by the United States or the Pennsylvania Supreme Courts that has been held to apply retroactively after the time for presenting a timely PCRA petition expired as contemplated by § 9545(b)(i) or (iii).

Similarly, the record does not support a conclusion that the facts upon which the claim is predicated were unknown to Defendant and could not have been ascertained by the exercise of due diligence.  At the time when Defendant pled guilty, Defendant was not eligible for the boot camp program.  To be eligible for the boot camp program, an offender had to be serving a minimum term of confinement of not more than two (2) years and a maximum term of confinement of not more than five (5) years.  61 P.S. § 1123.[3]  Additionally, a defendant serving a sentence for a conviction of Involuntary Deviate Sexual Intercourse or Aggravated Indecent Assault was not eligible for the boot camp program.  § 1123.

At the time when Defendant entered his guilty plea, he knew that he would receive an aggregate sentence of five (5) to ten (10) years’ imprisonment under that guilty plea and that this sentence was imposed for convictions of Involuntary Deviate Sexual Intercourse and Aggravated Indecent Assault.  As we will discuss below, the Court indicated at the time when Defendant entered his guilty plea that it did not believe that Defendant was eligible for the boot camp program, and trial counsel at that time echoed similar doubt based upon the nature of the charges and the length of the sentence.  Finally, if Defendant hoped to be admitted to the boot camp program, Defendant was required to complete a written application for the boot camp program, which would have resulted in a determination that Defendant was ineligible for the program.  Accordingly, as early as the date when Defendant entered his guilty plea, Defendant was aware or should have been aware with the exercise of due diligence that he was not an eligible candidate for the boot camp program.  Therefore, nothing in the record before this Court supports the proposition that the facts upon which Defendant’s PCRA Petition is based were unknown to Defendant and could not have been ascertained by him with the exercise of due diligence such that it would excuse Defendant’s failure to file his PCRA Petition in a timely manner pursuant to § 9545(b)(1)(ii).

The timeliness requirements of the PCRA are jurisdictional and mandatory.  Howard at 353, citing Commonwealth v. Fahy, 737 A.2d 214, 222 (Pa. 1999).  The court has no authority to extend the statutorily-designated filing periods except as the PCRA statute permits.  Id.  The timeliness requirements of the PCRA do not vary based upon the nature of the error alleged therein.  Howard at 356.  To the contrary, the timeliness requirements of the PCRA are intended to apply to all PCRA petitions regardless of the merit or lack thereof of the individual claims raised therein.  Howard at 353, citing Commonwealth v. Murray, 753 A.2d 201, 202-203 (Pa. 2000).  Since the timeliness requirements of the PCRA are mandatory and jurisdictional in nature, the court may not disregard or alter them in order to reach the merits of a claim raised in a PCRA petition that was filed in an untimely manner.  Id.  Since Defendant failed to plead or to prove that any of the statutory exceptions to the one (1) year time limitation are applicable to his case and the record before us does not support any of those exceptions, we are without jurisdiction to consider Defendant’s untimely PCRA Petition.

However, even if we had jurisdiction to consider the merits of Defendant’s PCRA Petition, Defendant’s allegations of error would warrant him no relief.  In support of Defendant’s allegations that his guilty plea was unlawfully induced, his trial counsel rendered ineffective assistance and his sentence is illegal, Defendant asserts that he was to receive a total sentence of five (5) to ten (10) years’ imprisonment, with boot camp, under the terms of his negotiated guilty plea.  Defendant, in fact, avers that this Court sentenced him to five (5) to ten (10) years’ imprisonment with boot camp.  Defendant argues that trial counsel told him that he was eligible for the boot camp program and his plea agreement was violated when he was not placed in the boot camp program.

The law does not require that a defendant be pleased with the outcome of his decision to enter a plea of guilty.  Commonwealth v. Moser, 921 A.2d 526, 528-529 (Pa.Super. 2007), citing Commonwealth v. Yager, 685 A.2d 1000, 1004 (Pa.Super. 1996).  Rather, all that is required is that the defendant’s decision to plead guilty be made knowingly, voluntarily and intelligently.  Id.  Once a defendant enters a guilty plea, it is presumed that the defendant was aware of what he was doing, and the defendant bears the burden of proving that his guilty plea was unknowing.  Moser at 529, citing Commonwealth v. McCauley, 797 A.2d 920, 922 (Pa.Super. 2001).  Where the record clearly demonstrates that a guilty plea colloquy was conducted, during which it became evident that the defendant understood the nature of the charges against him, the voluntariness of the plea is established.  Id.

A defendant may not challenge a guilty plea by asserting that he lied in the statements he made under oath in his guilty plea colloquies.  Commonwealth v. Pollard, 832 A.2d 517, 523 (Pa.Super. 2003), citing Commonwealth v. Cappelli, 489 A.2d 813, 819 (Pa.Super. 1985).  A person who elects to plead guilty is bound by the statements that he makes under oath and may not later assert grounds for withdrawing the plea that contradict the statements he made in his plea colloquy.  Pollard at 523, citing Commonwealth v. Stork, 737 A.2d 789, 790-791 (Pa.Super. 1999).  A defendant who chooses to plead guilty has a duty to answer questions truthfully.  Pollard at 524, citing Cappelli at 819.  A defendant cannot be permitted to postpone final disposition of his case by lying to the court and later alleging that his lies were induced by the prompting of counsel.  Id.

The record does not support Defendant’s allegation that he believed that he definitively was eligible for or would be serving any portion of his sentence in the boot camp program or that the Court was required to sentence or to recommend him for the boot camp program under the guilty plea agreement.  Defendant’s understanding of these matters is evidenced by the responses he provided under oath in his guilty plea colloquies.  Defendant executed a written guilty plea colloquy prior to the on-the-record entry of his guilty plea.  In that guilty plea colloquy, Defendant described the terms of his guilty plea in full as follows, “5 to 10 years SCI on this action number, with any sentence imposed on CP-38-CR-0001976-2005 to be served concurrently.  Com will not oppose placement in boot camp.”  In stating the terms of his guilty plea in full, Defendant did not write that he would be eligible for or accepted into the boot camp program.  While Defendant described that the Commonwealth would not raise any objection or opposition to his placement in boot camp under the negotiated plea, he did not write that eligibility for or acceptance into the boot camp program were stated terms of the guilty plea.  Further, the Court designating or recommending Defendant for eligibility for or acceptance into the boot camp program were not included as terms of the plea agreement.  Defendant affirmed in his executed guilty plea colloquy that he stated the terms of his negotiated guilty plea in full and that no other promises were made to persuade him to enter his guilty plea other than the plea agreement that was described.  Defendant placed his initials on each page of the written guilty plea colloquy and his signature at the end of the guilty plea colloquy, affirming under oath that he read the colloquy in full, understood its full meaning and still wanted to plead guilty under the terms set forth therein.

Further, the fact that Defendant’s eligibility for and/or acceptance into the boot camp program were not terms of the negotiated plea is evidenced by the oral colloquy the Court conducted with Defendant regarding the terms of the plea agreement:

The Court:                    …[A]t the time of sentencing, it’s your expectation that the                                                                    Commonwealth will recommend to the Court-and the Court will                                                            accept that recommendation-that you receive a sentence of five to                                                         ten years in a state institution, but that the sentence to be imposed                                                    in Action No. 2005-1976 would also be served concurrently at the                                                          same time with this action number.  Also that the Court would not                                                           oppose any placement in the boot camp program, although I don’t                                                             know that that’s available to these charges.

 

Defense Counsel:          It is a-the Commonwealth would not oppose it.  In my discussion                                                          with [Deputy District Attorney] Ryland-Tanner we were unsure                                                             this morning whether he was eligible for that program based upon                                                    the length of the sentence and these charges.

 

The Court:                    I think he’s not.

 

Defense Counsel:          We were unsure, but we felt that that ought to be an option                                                                    available.

 

The Court:                    Okay.

 

(N.T. 3/7/06 at 3).  After Defendant was advised that the Court did not believe that he was eligible for the boot camp program, Defendant nonetheless affirmed under oath that he understood the terms of the plea, he had no questions, he did not wish to change any of the answers he provided and it was still his desire to plead guilty to the charges under the agreement presented.  The oral colloquy makes clear that Defendant understood that the only term of the guilty plea pertaining to the boot camp program was that the Commonwealth would not oppose it in the unlikely event that the state correctional institution deemed Defendant eligible for the boot camp program.

After indicating that he understood the terms of the guilty plea agreement as outlined above, Defendant cannot now assert that he believed that he was guaranteed eligibility for or acceptance into the boot camp program and that trial counsel induced him to plead guilty by misrepresenting those matters to him.  The record makes clear that trial counsel made no guarantee to Defendant that he was eligible for or would be accepted into boot camp.  To the contrary, trial counsel expressed on the record his awareness that Defendant may not be eligible for the boot camp program based upon the nature of the instant charges and the length of the sentence imposed and negotiated the Commonwealth’s agreement not to oppose placement in the boot camp program in the off-chance that the state correctional institution would accept Defendant into the program.  While Defendant obviously is not pleased that his ineligibility for the program, a likelihood that was communicated to him by the Court, finally was conveyed to him by the state correctional institution, Defendant understood that the only term of the plea agreement pertaining to the boot camp program was that the Commonwealth would not oppose it in the unlikely event that he was deemed eligible for it.  Defendant cannot establish on this record that his guilty plea was involuntarily or unknowingly entered because the likelihood came to fruition.  Moreover, Defendant has not asserted that he would not have pled guilty but for his belief that he was guaranteed eligibility for or acceptance into the boot camp program.  Therefore, even if we had jurisdiction to consider the merits of the allegations of error in Defendant’s PCRA Petition, they would warrant him no relief.

Pa.R.Crim.P. Rule 907(1) governs the disposition of a meritless PCRA petition without a hearing.  Rule 907(1) provides:

“the judge shall promptly review the petition, any answer by the attorney for the Commonwealth, and other matters of record relating to the defendant’s claim(s).  If the judge is satisfied from this review that there are no genuine issues concerning any material fact and that the defendant is not entitled to post-conviction collateral relief, and no purpose would be served by any further proceedings, the judge shall give notice to the parties of the intention to dismiss the petition and shall state in the notice the reasons for the dismissal.  The defendant may respond to the proposed dismissal within 20 days of the date of the notice.  The judge thereafter shall order the petition dismissed, grant leave to file an amended petition, or direct that the proceedings continue.”

 

In this case, based upon our review of the record and Defendant’s PCRA Petition, we are without jurisdiction to address the merits of the Petition as a result of its untimeliness.  Additionally, the responses provided by Defendant in his guilty plea colloquies belie any assertion that Defendant’s guilty plea was unknowingly or involuntarily entered.  As such, we are satisfied that there would be no purpose served by any further proceeding.  Accordingly, we intend to dismiss Defendant’s Petition without a hearing.  Defendant will be afforded twenty (20) days from the date of this Order to file a Response to the proposed dismissal that sufficiently sets forth any statutory basis upon which we have jurisdiction to entertain his untimely Petition and factual and legal grounds upon which he is entitled to PCRA relief.  In the event that Defendant fails to file a Response to the proposed dismissal as directed herein, we will deny Defendant relief and will dismiss his PCRA Petition without a hearing.

We will enter an appropriate Order.



[1]  The executed guilty plea colloquy reflects that Defendant agreed to plead guilty to all of the charges in exchange for the imposition of an aggregate sentence of five (5) to ten (10) years’ imprisonment in a state correctional institution, with any sentence imposed at action number CP-38-CR-0001976-2005 to be served concurrently with this sentence, and the Commonwealth’s agreement not to oppose placement in the boot camp program.  At action number CP-38-CR-0001976-2005, Defendant was charged with Aggravated Assault and related charges resulting from Defendant’s alleged resistance when law enforcement attempted to take him into custody on the within charges.  Following dismissal of some of those charges, Defendant pled guilty to charges of Terroristic Threats, Simple Assault, Resisting Arrest and Disorderly Conduct and received an aggregate sentence of one (1) month to two (2) years’ imprisonment.  That sentence was directed to be served concurrently with the sentence imposed at the within action number.

[2] Hereafter, we collectively refer to Defendant’s pro se and Amended PCRA Petitions as “Defendant’s PCRA Petition.”

[3] At the time of the offenses, the Motivational Boot Camp Act was codified at 61 P.S. § 1121 et seq.  The Motivational Boot Camp Act was amended on August 11, 2009, effective October 13, 2009, and re-numbered as 61 Pa.C.S. § 3901 et seq.  In addressing Defendant’s PCRA Petition, we consider the version of the Act that was in effect on the date(s) when the offenses were committed.

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