Commonwealth vs. Richard Hainley No. CP-38-CR-1662-2010

Criminal Law-Bench Trial-Post Sentence Motions-Validity of Waiver of Jury Trial-Pa.R.Crim.P. Rule 620-Totality of the Circumstances-Written and Oral Colloquies of Waiver do not Appear of Record

1. In Post Sentence Motions following conviction of sexual offenses after a bench trial, Defendant asserted that his waiver of his constitutional right to a bench trial was not valid.

2. The defendant and the attorney for the Commonwealth may waive a jury trial with the approval of the trial court and may elect to have the judge try the case and act as the finder of fact. The trial court shall ascertain from the defendant whether his or her waiver of a jury trial is knowing and intelligent with a colloquy regarding the same appearing on the record. The waiver of the right to jury trial shall be in writing, made part of the record and signed by the defendant, the attorney for the Commonwealth, the judge and the defendant’s attorney. Pa.R.Crim.P. Rule 620. The colloquy conducted by the Court must apprise the defendant of the following essential elements of a jury trial: the jury would be selected from members of the community, the verdict must be unanimous and the defendant would be allowed to participate in the selection of the jury. The Commonwealth has the affirmative burden of establishing waiver of a jury trial.

3. In deciding whether the waiver of a jury trial is valid, the Court must employ a totality of the circumstances analysis that includes the extent to which defense counsel and the claimant discussed the waiver of the jury trial.

4. The Court may rely upon defense counsel’s description of usual practices and procedures as circumstantial evidence establishing that he or she acted in compliance with constitutional minimums. Defense counsel’s lack of recollection regarding specifics of a case is not contradictory to testimony that he or she performed certain acts on behalf of the defendant.

5. The Court found that even though the record did not satisfy the requirements of Pa.R.Crim.P. Rule 620 because the record did not contain the claimant’s executed waiver of his right to a jury trial or notes of testimony of the oral colloquy of that waiver, the totality of the circumstances established that the Defendant knowing and voluntarily waived his right to a jury trial, as Defendant’s counsel and staff testified that the Defendant was informed on numerous occasions of the procedures involved in a jury trial, the option of a bench trial and the differences between the two (2) proceedings and the Defendant made the decision himself to proceed with a bench trial, Defendant’s counsel testified that he routinely instructed his clients to execute waiver of jury trial forms when waiving a right to jury trial and the attorney for the Commonwealth testified that she recollected her receipt of a written waiver of the jury trial and that an oral colloquy was conducted.

L.C.C.C.P. No. 1662-2010, June 11, 2015.

IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY

PENNSYLVANIA

CRIMINAL DIVISION NO. CP-38-CR-1662-2010

COMMONWEALTH OF PENNSYLVANIA

v.

RICHARD ALLEN HAINLEY

ORDER OF COURT

AND NOW, to wit, this 6^th day of June, 2012, it appearing to the Court that the resolution of matters at issue in Defendant’s Post-Sentence Motion requires a hearing, a hearing on the Motion is hereby scheduled for June 19, 2012 at 10:00 a.m. in Courtroom 1.

BY THE COURT,

JOHN C. TYLWALK, P.J.

APPEARANCES:

COURTNEY HAIR, ESQUIRE FOR THE COMMONWEALTH

ASSISTANT DISTRICT ATTORNEY

DAVID RUDENSTEIN, ESQUIRE FOR RICHARD ALLEN HAINLEY

OPINION, TYLWALK, P.J., JUNE 11, 2015.

Defendant was charged with two counts of Involuntary Deviate Sexual Intercourse, one count of Indecent Assault, and one count of Endangering the Welfare of Children. He was scheduled for a jury trial to be held during the October 3, 2011 Criminal Jury Trial term. After he appeared for the Call of the List on October 3, 3011, his jury trial was scheduled for October 5, 2011.

On October 3, 3011, defense counsel, Allen Sodomsky, Esquire (“Sodomsky”) notified the Court and the Commonwealth that Defendant might desire to proceed with a bench trial rather than a jury trial. After being given time for consultation with Defendant, Sodomsky reported back to the Court that Defendant preferred a bench trial. The Commonwealth attorney, Megan Ryland-Tanner, Esquire (“Ryland-Tanner”) indicated that she would not object only if the bench trial took place on October 5, 2011. Despite the fact that bench trials are not normally conducted during Criminal Jury Trial Term, we agreed to conduct Defendant’s bench trial on that date. After the bench trial, we found Defendant guilty of all charges by Order issued October 6, 2011. On January 25, 2012, we sentenced Defendant to eleven (11) to twenty-five (25) years and provided him with notice of his Megan’s Law registration requirements. On February 1, 2012, Defendant filed a Post-Sentence Motion challenging the sufficiency and weight of the evidence, the admission of testimony from the Tender Years hearing and the validity of his waiver to his right to a jury trial.

Both parties filed their Briefs and our decision was due June 14, 2012. In its Brief, the Commonwealth sought a hearing on the issue of Defendant’s waiver to have a jury trial due to the absence of any documents or indication of an oral colloquy of Defendant’s waiver in the record. Because we were likewise unsuccessful in locating any supporting documentation of Defendant’s waiver, we were unable to rule on that issue, and instead scheduled a hearing to aid us in making our determination. Because we were beyond the time limit for rendering our decision, Defendant objected to the scheduling of the hearing and instead notified this Court of his intention to file a Notice of Appeal. (See Case Correspondence dated June 11, 2012) Hence, we entered an Order on June 14, 2012 deeming the Post-Sentence Motion denied by operation of law. Defendant filed a Notice of Appeal to the Superior Court of Pennsylvania on June 29, 2012. On August 28, 2012, we issued an Order and Opinion in which we recommended to the Superior Court that the matter be remanded on the waiver issue so that we could proceed with an evidentiary hearing in order to determine the circumstances of Defendant’s waiver of his right to a jury trial. By Order filed April 15, 2013, the Superior Court remanded the matter to us for a hearing on the waiver issue and declined to rule on Defendant’s other asserted bases for relief. The Superior Court denied Defendant’s Application for Reconsideration/Reargument on June 21, 2013 and the Supreme Court of Pennsylvania denied his Petition for Allowance of Appeal on December 23, 2011.

We conducted a hearing on the Post-Sentence Motions on July 17, 2014. A transcript of that hearing has been lodged, the parties have submitted Briefs, and the matter is now before us for resolution.

With regard to a criminal defendant’s waiver of his right to a jury trial, Pa.R. Crim. P. 620 provides:

Rule 620. Waiver of Jury Trial

 

In all cases, the defendant and the attorney for the Commonwealth may waive a jury trial with approval by a judge of the court in which the case is pending, and elect to have the judge try the case without a jury. The judge shall ascertain from the defendant whether this is a knowing and intelligent waiver, and such colloquy shall appear on the record. The waiver shall be in writing, made a part of the record, and signed by the defendant, the attorney for the Commonwealth, the judge, and the defendant’s attorney as a witness.

 

Pa.R.Crim.P. 620. In Commonwealth v. Foreman, 797 A.2d 1005 (Pa. Super. 2002), the Court explained:

The colloquy conducted by the trial court must apprise the defendant of the following essential elements of a trial by jury: that the jury would be selected from members of the community, that the verdict must be unanimous, and that the defendant would be allowed to participate in the selection of the jury. Commonwealth v. Shablin, 362 Pa.Super. 289, 524 A.2d 511 (1987). Our Supreme Court ruled that in deciding whether a jury waiver is valid, we must employ a totality of the circumstances analysis which examines, among other things, the extent to which counsel and client discussed the waiver. Commonwealth v. DeGeorge, 506 Pa. 445, 449, 485 A.2d 1089, 1091 (1984). Therefore, we are compelled to go beyond the colloquy and examine the record as a whole and the circumstances surrounding Appellant’s waiver of his right to a jury trial in order to determine whether that waiver was voluntary. Id.

797 A.2d at 1015. The waiver of a jury trial is a personal right of the accused. The prosecution has the burden of affirmatively establishing waiver. Commonwealth v. Morin, 383 A.2d 832 (Pa. 1978). The basic ingredients of a jury trial, understanding of which are necessary to a knowing and intelligent waiver, are the requirements that the jury be chosen from the community, that the verdict be unanimous, and that the defendant be allowed to participate. Commonwealth v. Williams, 447 A.2d 963, 301 Pa.Super. 271, (Pa. Super. 1982). Such a waiver is to be approved by the court. Before it may be said that defendant has knowingly and intelligently waived the right to a jury trial, the on-the-record colloquy must show that the defendant fully comprehended the significance of the right being waived. Id. If the record is insufficient, the trial court may conduct an evidentiary hearing to determine whether the totality of the circumstances indicates that Defendant’s waiver of trial by jury was knowing and intelligent. Commonwealth v. DeGeorge, 485 A.2d 1089, 1091 (Pa. 1984).

Sodomsky testified that prior to listing this case for trial, he had numerous lengthy meetings with Defendant and his family in his law office. He explained that during those meetings, they discussed whether Defendant should opt for a jury trial or a bench trial. Sodomsky explained that over the course of his twenty-three-year practice in criminal law, he had developed a standard speech regarding the details and attributes of both jury trials and bench trials and that he gave this speech to Defendant. He testified that he “absolutely” advised Defendant of the differences between the two types of proceedings, his rights regarding a jury trial, and how a jury trial worked (N.T. PCRA Hearing, 7/17/14 at 11-12) He informed Defendant that a unanimous decision of twelve people was necessary for a jury’s verdict, that there existed the possibility of a hung jury, and that with a bench trial, only the decision of the one judge was necessary. He indicated to Defendant that emotion would not be a factor with a bench trial. Sodomsky noted that Defendant seemed to have no difficulty comprehending this information and that he never indicated that he did not understand anything. Sodomsky stated his opinion that Defendant was very intelligent and had often “called the shots” throughout trial preparation. (N.T. PCRA Hearing, 7/17/14 at 12) Sodomsky had explained to Defendant that there was a good chance of getting “level footing” if the case was assigned to a certain Courtroom. (N.T. PCRA Hearing, 7/17/14 at 21)

Sodomsky explained that the decision whether to proceed with a jury trial or a bench trial was a tactical decision. Because all judges are different, he could not give a good opinion about which was best until he knew which Lebanon County judge would be assigned to the case. Due to Lebanon County procedure, he would not know which Judge would hear the case until the morning of October 3, 2011 after Call of the List. He explained that he was prepared to select a jury and proceed with a jury trial until that time.

Sodomsky explained that once he learned which Judge would preside over Defendant’s case on October 3, 2011, he discussed with Ryland-Tanner and the Court the possibility of having a bench trial. He felt that the assigned Judge would give Defendant “a fair shake.” The Court gave him some time to discuss this possibility with Defendant. Sodomsky discussed this option with Defendant outside of the Courtroom. Sodomsky recalled that his employee, Robin Wertz, Defendant, and Defendant’s girlfriend, mother and two sisters were involved in the conversation. Sodomsky advised Defendant that he believed a bench trial was in his best interest. This opinion was based on a consideration of the nature of the sex charges and the type of evidence which would be presented by the Commonwealth, which included the testimony of the young female victim. Sodomsky believed that if the evidence was believed, it was sufficient to substantiate a verdict in favor of the Commonwealth. Defendant and his family had a lot of questions. Sodomsky and Wertz answered all of their questions. Defendant told Sodomsky that he wanted the best chance at being found not guilty. Sodomsky insisted that he again went over with Defendant the differences between a jury trial and a bench trial and the rights he would give up by proceeding with a bench trial at that time. Sodomsky also insisted that the ultimate decision to proceed with a bench trial was made by Defendant.

Once Defendant had indicated his decision to proceed with a bench trial, Sodomsky believed that he obtained the paperwork for Defendant’s written waiver. Although he did not know who routinely filled out the paperwork for such waivers, he noted that he would have had Defendant sign the written waiver form on that morning. He did not have a copy of the written waiver in his own file, noting that he would not have kept a copy of the form. He knew that the written form was required. He noted that prior to that time, he had arranged jury trial waivers for clients in Lebanon County many times and that he would have obtained the written form in this case. He also believed that the judge conducted oral questioning regarding the waiver in Court; however, he had no specific recollection of the questions asked and was not sure whether the Court’s discussion was recorded.

Sodomsky further noted that Defendant appeared to be nervous on the morning of the bench trial. He never asked Sodomsky about the lack of a jury at the Tender Years Hearing which preceded the trial or prior to or during the bench trial itself. Sodomsky insisted that had Defendant ever indicated to him that he wanted a jury trial, even after the proceedings had begun, he would have immediately stopped the proceedings and related that information to the Court. Defendant never told him that he did not want a bench trial.

Robin Wertz (“Wertz”), Sodomsky’s office manager and jury consultant, testified that she had been involved with Defendant’s case since the point when their office received discovery a number of months prior to the trial date. She had been present during the meetings at Sodomsky’s law office and was involved in discussions with Sodomsky and Defendant about whether to have the case decided by a judge or a jury. She remembered Sodomsky telling Defendant about how a jury trial was conducted and explaining the differences between a jury trial and a bench trial. Although she knew that this could be an emotionally-charged case due to the nature of the charges and the testimony of the little girl, she never advised against having a jury trial.

Wertz was present at Court on October 3, 2011 to help Sodomsky with jury selection. She testified that when Sodomsky came out of the Courtroom, he was pleased with the Courtroom assignment. She and Sodomsky discussed the possible emotional impact the testimony of the young female victim might have on a jury and discussed the option of proceeding with a bench trial with Defendant and his family members. Sodomsky went over with Defendant and his family members the differences between the two proceedings, the fact that Defendant had the right to pick a jury and proceed with a jury trial, and how that whole process would work. Sodomsky indicated to the group that he felt the assigned Judge would keep emotion out of his decision and would pay attention to the facts. Wertz did recall Sodomsky explaining to Defendant the difference between a bench trial and a jury trial and emphasizing to him that he had the right to go before a jury. Sodomsky never told Defendant that he had already decided to proceed with a bench trial. Wertz heard Defendant say that he would go with a bench trial.

Ryland-Tanner, the Commonwealth attorney who prosecuted this case, also testified at the PCRA hearing. Ryland-Tanner explained that on the morning of October 3, 2011, Sodomsky approached her about the possibility of having a bench trial. Ryland-Tanner indicated that this was the first time Sodomsky mentioned having a bench trial in this case. When Sodomsky told her that Defendant desired a bench trial, she told him that she would not object as long as the bench trial could be conducted during that trial week. She recalled that Sodomsky handed her a completed, signed, and initialed waiver form. She also recalled the judge engaging Defendant in an oral colloquy and that once that was completed, Defendant indicated he wished to waive his right to a jury trial. Ryland-Tanner also testified that during the Tender Years Hearing, bench trial and Sentencing, she never heard Defendant say anything about wanting a jury trial. Ryland-Tanner recalled that Defendant had testified during the bench trial and never indicated any concerns or confusion about the process. Also, after Sentencing, Defendant voiced no concerns when the Court asked him if he had any problems or concerns with his legal representation.

On cross-examination, Ryland Tanner admitted that neither the written waiver nor the oral colloquy appear in the record of this case. However, she noted that this was an uncommon situation and that she would not have proceeded to a bench trial without a waiver. She indicated that she had searched her file, had called Sodomsky about getting a copy of the waiver, had checked the Clerk of Courts file, and had looked for a transcript of the oral colloquy.

When asked whether anything out of the ordinary had occurred in Court on October 3, 2011, Ryland-Tanner noted that there were no other people present in the Courtroom during the Court’s oral colloquy. She could not recall whether a member of the Clerk of Court’s office or a stenographer were still present at that point as the Courtroom had already been cleared out after Call of the List was over. Ryland-Tanner specifically recalled being handed the written waiver and it going up to the Judge. She specifically remembered the conversation going back and forth between the Judge and Defendant and that once that conversation was completed, the Judge told those present that he would see them in a couple of days. Ryland-Tanner was adamant that she would not have proceeded to a bench trial without ensuring that a written waiver had been obtained.

Marian Hainley, Defendant’s mother, also testified at the hearing. She explained that she had helped her son obtain the services of Sodomsky and that she had gone to Sodomsky’s office with her son to discuss the case on two or three occasions. She claimed that she never heard any discussion of the choice between a jury and a judge trial or how a jury trial would be conducted.

Mrs. Hainley had also been present on October 3, 2011. She recalled that Sodomsky came out of the Courtroom and said “we got the judge we wanted,” but did not explain what he meant by that statement. When he said he wanted to go with a bench trial, she and Defendant both told him “no.” After that, Sodomsky left them and returned to the Courtroom. She did not go into the Courtroom. She never saw her son sign any form and she did not remember the Judge asking him any questions about whether he wanted a jury trial. On the date of trial, she remembered that she and her son came with the assumption that Sodomsky would be picking jurors. When she asked Sodomsky what was going on, she remembers that he told her that he thought they should go with a bench trial and “that was that.”

Defendant also testified at the hearing. He testified that the first time Sodomsky spoke to him about whether to have a jury trial or a bench trial was the first day he was in the Courtroom for trial. During their previous meetings, the differences between a bench trial and jury trial were brought up vaguely and briefly, but not really discussed in depth. He never authorized Sodomsky to discuss the possibility of having a bench trial with the Commonwealth or the Court.

On October 3, 2011, Sodomsky came out of the Courtroom and told him there were some things they had to discuss. During their ten-minute discussion, Sodomsky told him that a bench trial was in his best interest but did not discuss the differences between the two types of proceedings. When Sodomsky asked him for his decision, he told him he still wanted a jury trial. He insisted that he never changed that position and never told Sodomsky to make the decision on his own.

Defendant claimed that he only realized that he wasn’t having a jury trial on October 5, 2011 when the bench trial began and he saw that there was no jury. When he asked Sodomsky what was going on, Sodomsky responded that they were having a bench trial. Defendant explained that at that point he was scared and intimidated and that he just went along with whatever his attorney told him to do. He insisted that he was never given any form to sign about his jury trial rights and that the Judge never questioned him about whether he wanted a jury trial or a bench trial. He explained that he felt Sodomsky had forced him into going forward with the bench trial.

Arthur Geistwhite, Defendant’s brother-in-law was the final witness to testify at the hearing. He had been present at one of the office meetings and did not recall having any discussions regarding judge versus jury trial at that time. He was also present outside the Courtroom on October 3, 2011 with his wife and Defendant’s girlfriend and other family members during the conversation with Sodomsky. He testified that he had also expected Defendant to have a jury trial, but Sodomsky said that Defendant had the opportunity to have a bench trial instead and that he recommended the bench trial. He testified that Sodomsky did not have any discussion about what rights Defendant would be giving up. However, he recalled him talking about selecting twelve jurors from the community and that Defendant would not do that at a bench trial. He did not explain anything about how the Judge would reach his verdict. He never saw Sodomsky give Defendant any forms to sign or have him go into the Courtroom.

It is clear that in this case, the record does not satisfy the requirements of Rule 620. Despite many efforts to locate them, the record does not contain the written waiver form or any reference to or other indication of the oral colloquy. Defendant and his family members claim that Defendant was never given anything to sign and that he was never engaged in a discussion of his waiver with the Judge. Defendant stated that his waiver was not addressed when he appeared on October 5, 2011. He insisted that he still thought he was going to have a jury trial on that date and that he just went along with what his attorney had decided on his own. Regardless, we believe that the evidence adduced at the PCRA hearing indicates that under the totality of the circumstances, Defendant knowingly and voluntarily waived his right to a jury trial.

Sodomsky and Wertz both testified that Defendant, along with any family members accompanying him, was informed on numerous occasions of the rights and procedures involved in a jury trial, the option of having a bench trial, and the differences between the two proceedings. Both also testified that Defendant made the decision himself to proceed with a bench trial.

We find Sodomsky’s testimony of his actions in this regard to be credible. A PCRA court may rely upon a trial counsel’s description of his usual practices and procedures as circumstantial evidence of his having acted in compliance with constitutional minimums in a particular case. See, Commonwealth v. Basemore, 744 A.2d 717, 736, n. 19 (Pa. 2000); Commonwealth v. Dupert, 725 A.2d 750, 755 (Pa. 1999). A trial counsel’s lack of recollection regarding specifics of a case in a PCRA proceeding is not contradictory to testimony that he performed certain acts on behalf of his client. See, Commonwealth v. Chmiel, 30 A.3d 1111 (Pa. 2011). Here, Sodomsky testified that he understood that the written waiver was required and that he routinely had his clients execute that form when waiving a right to a jury trial in Lebanon County. He noted that since this form was required, he would have ensured that Defendant executed one. We believe this testimony of his normal procedure is indicative that he proceeded in this manner in this case.

Also, although Sodomsky was unable to recall the specific details of Defendant’s execution of the written form, he was confident that Defendant had, in fact, signed one. He testified that he was unable to recall where he got the form or any details regarding Defendant’s execution of it. He also believed that the Court engaged in an oral colloquy with Defendant, although he could not recall the specific questions posed to Defendant by the Court. We do not find that his lack of details is contradictory to his testimony of his general memory of the form being executed and the oral colloquy being conducted.

We also find Ryland-Tanner’s recollection of the events of this case to be credible. Ryland-Tanner described the Courtroom situation at the time she received the written waiver and the Court questioned Defendant. She specifically recalled that the Courtroom had cleared out after Call of the List and that no others remained when Sodomsky and Defendant came in after their conference. Ryland-Tanner specifically remembered being handed the written waiver form by Sodomsky. She was also present and remembered the Court questioning Defendant regarding his waiver. Although the whereabouts of the written waiver is unknown, and there is no transcript of the oral colloquy, we are satisfied that these two experienced attorneys did, in fact, make certain that a written waiver was obtained from Defendant and that the oral colloquy did actually occur despite the fact that they do not appear of record as required by Rule 620.

Moreover, regardless of the absence of the written waiver and a transcript memorializing the oral colloquy from the record, we believe that other testimony adduced at the PCRA hearing, in addition to that of Sodomsky and Ryland-Tanner, supports a finding the Defendant knowingly and voluntarily waived his right to a jury trial. Sodomsky and Wertz both testified that Sodomsky had given Defendant all the necessary information and had discussed the subject of having a bench trial versus a jury trial many times prior to and on October 3, 2011. Wertz heard Defendant specifically tell Sodomsky that he would go with a bench trial after the discussion outside of the Courtroom on October 3, 2011. Also, Defendant went through the Tender Years Hearing, bench trial and Sentencing without uttering a word about having wanted a jury trial. We do not discredit the testimony of Defendant’s family members; however, we must note that none of them was present at all times during all proceedings and for all of Defendant’s discussions with Sodomsky.

Based on this evidence, we conclude that the Commonwealth has fulfilled its burden of proving a knowing and voluntary waiver on the part of Defendant. The testimony established that Sodomsky thoroughly discussed the option of having a bench trial rather than a jury trial, with its attendant rights, throughout his representation of Defendant. Defendant made his own decision to proceed with a bench trial. Sodomsky and Ryland-Tanner followed the proper procedure to effectuate a valid waiver. The Court discussed the waiver with Defendant. Under the totality of these circumstances, we find sufficient basis upon which we can conclusively determine that Defendant himself chose to give up his jury trial rights and to proceed with a bench trial instead.

For these reasons, we determine that Defendant’s waiver of his Constitutional right to a jury trial was valid. Therefore, we must deny Defendant’s request for collateral relief.

 

1) 18 Pa.C.S.A. §3123, 18 Pa.C.S.A. §3126, and 18 Pa.C.S.A. §4304, respectively.

2) In DeGeorge, the record contained only a document signed by Defendant which indicated that he “pleads not guilty and … waives a jury trial and elects to be tried by a judge without a jury.” Finding that it had no way to determine the validity of the waiver, the Supreme Court of Pennsylvania remanded the case to the trial court for an evidentiary hearing to determine whether the waiver was knowing and intelligent.

3) Wertz was Sodomsky’s office manager and a jury consultant who was there to help him pick a jury for Defendant’s case.

4) This jurist also recalls Defendant executing a written waiver form and participating in an oral colloquy. However, since a judge may not rely on facts which he remembers from a prior proceeding but which are not part of the record in the case before him, Commonwealth v. A.C. Cavell, 213 A.2d 98 (Pa. Super. 1965), we may not take this recollection into account in resolving this matter. For this reason, the Court had an employee of the Court conduct a page-by-page examination of the Clerk of Court’s physical files of all cases listed for trial during the October 2011 Criminal Jury Trial Term for the missing written waiver, on the chance that it had found its way into the wrong casefile when it was submitted in open Court. This search failed to yield this elusive document. A copy of that trial list is attached hereto and incorporated by reference as Exhibit “1.”