Judges Opinions, — November 11, 2015 13:36 — 0 Comments

Commonwealth vs. Joshua Kreiser No. CP-38-CR-0000983-2013

Criminal Action-Post Conviction Relief Act-Effectiveness of Trial Counsel-Presumption of Trial Counsel’s Effectiveness-Burden of Defendant-Guilty Plea-Aggravated Assault

1. Defendant, who pled guilty to charges of Aggravated Assault, Terroristic Threats and other related offenses and received an aggregate sentence of five and one-half (5 ½) to fifteen (15) years’ imprisonment for stabbing the victim, filed a Petition for Post Conviction Collateral Relief challenging the effectiveness of his trial counsel with regard to the entry of his guilty plea.

2. Trial counsel is presumed effective, and the defendant bears the burden of proving otherwise.

3. In determining whether trial counsel rendered ineffective assistance, the Court first must determine whether the issue underlying the claim of ineffectiveness has arguable merit. If the claimant is without arguable merit, the Court’s inquiry ends, as trial counsel cannot be deemed ineffective for failing to pursue a meritless issue.

4. Where Defendant acknowledged through his testimony at the Post Conviction Relief Act hearing and his responses to guilty plea colloquies that trial counsel discussed with him the elements of each of the offenses contained in the Criminal Information, the factual basis for those offenses, the possible defenses for those charges, the differences between “bodily injury” and “serious bodily injury” and “cause” and “attempt to cause” and the fact that voluntary intoxication is not a defense to establishing the requisite intent for Aggravated Assault, Defendant failed to establish that his guilty plea was involuntarily and unknowingly entered.

5. Since Defendant failed to establish that his guilty plea was involuntarily and unknowingly entered, trial counsel cannot be deemed ineffective with regard to the entry of that guilty plea.

L.C.C.C.P. No. CP-38-CR-0000983-2013, Opinion by Charles T. Jones, Jr., Judge, June 29, 2015

Megan Ryland-Tanner, Esquire, for the Commonwealth

Erin Zimmerer, Esquire, for Defendant

IN THE COURT OF COMMON PLEAS

OF LEBANON COUNTY, PENNSYLVANIA

CRIMINAL DIVISION CP-38-CR-983-2013

COMMONWEALTH OF PENNSYLVANIA

v.

JOSHUA A. KREISER, Appellant

ORDER

AND NOW, this 29th day of June, 2015, after careful consideration of the record, the briefs of the parties, and a hearing held on May 24, 2015, Appellant’s Petition for Post-Conviction Relief is hereby DENIED.

BY THE COURT:

CHARLES T. JONES, JR., J.

APPEARANCES:

Megan Ryland-Tanner, Esquire For Commonwealth

District Attorney’s Office

Erin Zimmerer, Esquire For Appellant

Montgomery & Zimmerer, LLC

OPINION BY JONES, J.:

Before this Court is Appellant’s Petition for Post-Conviction Relief.

FACTUAL HISTORY

On June 26, 2013 at approximately 3:17 a.m., Lebanon City Police were dispatched to the 100 block of N. 8th Street, Lebanon City, Lebanon County, Pennsylvania. Upon arrival, police found a twenty-five (25) year old male (later identified as Eric Saxbie (herein “Victim”)) who had been stabbed once in the lower right back. The Victim was transported to Hershey Medical Center for treatment and received three (3) stitches to close the wound. The wound was in the lower right area of the Victim’s back, near the kidney.

Detective Keith Uhrich (herein “Det. Uhrich”) was assigned to investigate the stabbing. Det. Uhrich was provided information that the stabbing occurred in the apartment at 145 Weavertown Terrace, North Lebanon Township, Lebanon County, Pennsylvania. He relayed this information to North Lebanon Police. Patrolman Robert Hilbert (herein “Ptlm. Hilbert”) of the North Lebanon Police was assigned to the matter. The apartment was searched and knives and bloody clothes were found. The Victim was interviewed, as well as a witness, Eleni Solesky (herein “Ms. Solesky”). The Victim and Ms. Solesky reported that Appellant was the perpetrator. Ms. Solesky was able to identify the knife that was used in the stabbing from those collected from the apartment.

Ms. Solesky also told police that after Appellant stabbed the Victim she locked herself in the bathroom within the apartment. Appellant was able to get into the bathroom. Appellant had a knife and told Ms. Solesky that he would put the knife down if she would talk to him. Ms. Solesky began talking to him, but broke down crying. Appellant picked up the knife and again stated that he would put it down if she talked to him. Ms. Solesky told police that she was held in the bathroom for approximately two (2) hours.

PROCEDURAL HISTORY

Appellant was charged with one (1) count of Aggravated Assault (F1); one (1) count of Terroristic Threats (M1); two (2) counts of Recklessly Endangering Another Person (M2); one (1) count of False Imprisonment (M2); and one (1) count of Simple Assault (M2) on August 6, 2013. Appellant waived his arraignment on August 21, 2013. Appellant entered a plea of guilty to all of the charges on December 19, 2013. On January 22, 2014, Appellant was sentenced to an aggregate sentence the minimum of which was to be five and one-half (5 ½) years and the maximum to be fifteen (15) years. The record shows that Appellant filled out a written guilty plea colloquy and a written post-sentence colloquy.

Appellant did not file any post-sentence motions or direct appeals. Appellant filed a pro se Petition for Post-Conviction Relief on January 23, 2015. Appellant’s Petition alleges that his plea of guilty to the Aggravated Assault charge was involuntary because he was never informed of the elements of Aggravated Assault and was coerced to except a plea deal unknowingly. Appellant specifically argues that “he did not attempt to cause a serious bodily injury, intentionally, knowingly, or recklessly, with malice, while manifesting extreme indifference to the value of human life.” See Appellant’s pro se Petition. Attorney Erin Zimmerer was appointed to represent Appellant in this matter on January 26, 2015. The Commonwealth filed a response to Appellant’s Petition on February 27, 2015. An Order directing the parties to contact Court Administration to schedule a hearing was filed on March 3, 2015. On March 17, 2015, the matter was scheduled for a hearing for May 26, 2015 (herein “the Hearing”). Appellant’s counsel filed an Amended Petition on April 23, 2015. The issues raised in the Amended Petition were permitted to be heard at the May 26, 2015 hearing by Order of Court dated April 15, 2015. The hearing was held as scheduled. The parties were directed to file briefs on or before June 29, 2015 and the Court took the matter under advisement. The matter is now ripe for disposition.

DISCUSSION

Appellant alleges that he did not receive effective assistance of counsel because he was unaware of the elements of Aggravated Assault at the time he entered a plea of guilty. At the time he entered his plea, Appellant was represented by Attorney Nicholas Sidelnick (herein “Att. Sidelnick”) from the Public Defender’s Office. At the Hearing, Appellant and Att. Sidelnick testified. Appellant stated that he did not understand the charges against him at the time, and should not have been charged with Aggravated Assault because he did not cause or intend to cause serious bodily injury. Att. Sidelnick testified that he went over all of the charges with Appellant. He even distinguished between bodily injury and serious bodily injury since Appellant was charged with Aggravated Assault and Simple Assault. He explained that Appellant could be convicted of Aggravated Assault for causing or attempting to cause serious bodily injury. Att. Sidelnick also testified that they discussed that at trial Appellant could argue that he did not cause or attempt to cause serious bodily injury, but only bodily injury.

Att. Sidelnick testified that he met with Appellant four or five times during his representation. He went over the discovery with Appellant, including the Information, and answered any questions that Appellant had asked. Att. Sidelnick recalled that Appellant appeared to understand. Most of their conversations were about the plea deal. They discussed what reduced charges may be; however, the Commonwealth was unwilling to reduce or amend the charges. Att. Sidelnick stated that when he met with Appellant in December of 2013, they discussed going to trial. They discussed that Appellant may be able to argue that he only attempted to cause or caused bodily injury, not serious bodily injury. Appellant decided that he would rather take the plea deal than go to trial. Att. Sidelnick never pressured Appellant or told Appellant that he had to enter a guilty plea.

Att. Sidelnick had Appellant read and initial the written guilty plea colloquy. Att. Sidelnick testified that the only questions that he answered for Appellant were questions 1 (relating to reading, speaking, and understanding English) and 18 (relating to promises for pleading guilty). Att. Sidelnick stated that Appellant appeared to understand all of the questions on the colloquy form.

Appellant testified that he could not possibly have had the intent to cause serious bodily injury or bodily injury because he was not in his right mind at the time he stabbed the Victim. When asked by this Court why he was not in his right state of mind, Appellant stated that he had been smoking “K2” that day. This Court asked if Att. Sidelnick had explained the defenses to Aggravated Assault and Appellant acknowledged that they had discussed them. Appellant admitted that Att. Sidelnick had explained that he could be convicted of Aggravated Assault for an attempt to cause serious bodily injury. Appellant did not believe that the Commonwealth would have had sufficient proof that he attempted to cause serious bodily injury. Appellant acknowledged that at the time he entered his plea he never told Att. Sidelnick or the Court that he did not understand the elements of the offenses with which he was charged or that he did not think the factual information fit the charges. Appellant now claims that he did not cause or attempt to cause serious bodily injury, therefore he should not have been charged with Aggravated Assault. Appellant believes that he should only have been charged with Simple Assault, which would only require the Commonwealth to show that Appellant attempted to cause or caused bodily injury.

Trial counsel is presumed to be effective, and the Appellant bears the burden of proving otherwise. Commonwealth v. Lewis, 708 A.2d 497 (Pa.Super. 1998); Commonwealth v. Williams, 570 A.2d 75 (Pa. 1990). In determining whether counsel rendered ineffective assistance, the Court must first determine whether the issue underlying the claim of ineffectiveness has even arguable merit. Commonwealth v. DiNicola, 751 A.2d 197 (Pa.Super. 2000); Commonwealth v. Johnson, 588 A.2d 1303 (Pa. 1991). If the claim is without arguable merit, the Court’s inquiry ends, as counsel will not be deemed ineffective for failing to pursue a meritless issue. Id.

Appellant was charged with Aggravated Assault under the following subsection:

A person is guilty of aggravated assault if he:

attempts to cause serious bodily injury to another, or causes such injury intentionally, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life

18 Pa.C.S.A. § 2702(a)(1). Appellant argues that he did not attempt to or cause serious bodily injury to the Victim. The Victim was stabbed by Appellant in the lower right back with a knife. The Victim required three (3) stitches to close the wound. The wound was in the area of the Victim’s kidney, a vital organ. The Commonwealth argues that this injury would have been sufficient to prove that Appellant caused serious bodily injury. If it had not been sufficient to show that serious bodily injury was actually caused, the injury was still sufficient to prove beyond a reasonable doubt that Appellant had attempted to cause serious bodily injury to the Victim.

In this case, the Court finds that Appellant’s claim does not have merit. Appellant and counsel discussed the elements of each of the offenses in the Information, the factual basis for those charges, the possible defenses to those charges, and the differences between “bodily injury” and “serious bodily injury,” as well as, the difference between “cause” and “attempt to cause.” This Court discussed with Appellant that voluntary intoxication is not a defense to the intent required for Aggravated Assault. Appellant acknowledged that he had the above referenced discussions with counsel and that he answered the questions relating to understanding the charges against him in the affirmative for the written and the oral guilty plea colloquies. Therefore, this Court finds that Appellant’s underlying claim that his guilty plea was involuntary and unknowingly entered does not have merit. Accordingly, Appellant’s Petition for Post-Conviction Relief based on ineffective assistance of counsel is denied.

CONCLUSION

For the reasons set forth above, this Court finds that the underlying claim in Appellant’s Petition for Post-Conviction Relief, that his guilty plea was involuntarily and unknowingly entered, does not have merit. Therefore, Appellant’s Petition for Post-Conviction Relief is denied. An Order will be entered consistent with the foregoing.

 

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