Commonwealth of Pennsylvania vs. Robert S. Adley No. CP-38-CR-0001117-2013

Criminal Action-Law-Post Conviction Collateral Relief-Aggravated Assault-Infant Victim-Legality of Sentence-Mandatory Minimum Sentence
Defendant pled guilty to charges of Aggravated Assault, Endangering the Welfare of a Child and Simple Assault in relation to his conduct that caused multiple injuries to his infant daughter.  He received an aggregate sentence of eight and one-half (8 ½) to twenty (20) years’ imprisonment, which judgment of sentence included a five (5) year mandatory minimum sentence for the Aggravated Assault conviction.  Defendant filed a Petition for Post Conviction Collateral Relief after exhausting his direct appeal rights, asserting that his sentence was illegal because the Court imposed a mandatory minimum sentence in violation of Alleyne v. United States, 133 S. Ct. 2151 (2013).
1.  Title 42 Pa.C.S. § 9718 provides that a person convicted of Aggravated Assault when the victim is less than thirteen (13) years of age shall be sentenced to a mandatory term of not less than five (5) years’ imprisonment.
2.  Section 9718 provides that the applicability of its provisions shall be determined at sentencing, with the trial court to consider any evidence presented at trial, to afford the Commonwealth and the defendant the opportunity to present any necessary additional evidence and to determine by a preponderance of the evidence if its provisions are applicable to the facts of the case.
3.  In Alleyne, the United States Supreme Court held that facts that increase mandatory minimum sentences must be submitted to a jury and proven beyond a reasonable doubt.
4.  In Commonwealth v. Wolfe, 106 A.3d 800 (Pa.Super. 2014), the Pennsylvania Superior Court held that § 9718 is unconstitutional, as its applicability is dependent upon factual findings made by a trial judge by a preponderance of the evidence, not by a jury beyond a reasonable doubt.
5.  The Pennsylvania Superior Court’s holding in Wolfe has been extended to cases in which a defendant has entered a guilty plea.
6.  In light of the fact that Defendant’s judgment of sentence did not become final prior to the United States’ Supreme Court’s decision in Alleyne and Defendant was sentenced to a five (5) year mandatory minimum sentence for his Aggravated Assault conviction pursuant to § 9718 that has been declared unconstitutional, Defendant is entitled to vacation of his judgment of sentence and resentencing without consideration of § 9718.
L.C.C.C.P. No. CP-38-CR-0001117-2013, Opinion by John C. Tylwalk, President Judge, March 23, 2017.

IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY
PENNSYLVANIA
CRIMINAL DIVISION NO. CP-38-CR-1117-2013

COMMONWEALTH OF PENNSYLVANIA
v.
ROBERT S. ADLEY
ORDER OF COURT
AND NOW, this 23rd day of March, 2017, upon consideration of Defendant’s Petition pursuant to the Post Conviction Relief Act, 42 Pa.C.S.A. §9541 et seq (“PCRA”), the evidence adduced at the hearing conducted on August 18, 2016, and the Briefs submitted by the parties, it is hereby Ordered that said Petition is GRANTED, in part, and DENIED, in part.
In accordance with the Opinion accompanying this Order, Defendant’s sentence is vacated and he is directed to appear for resentencing on May 24, 2017 at 8:30 a.m. in Courtroom 1, with representation of Melissa Montgomery, Esquire, to continue to the conclusion of this matter.  If Defendant desires to appear for resentencing via videoconference, he is directed to notify the Court by April 24, 2017.

BY THE COURT:
JOHN C. TYLWALK, P.J.
APPEARANCES:

DAVID ARNOLD, ESQUIRE   FOR THE COMMONWEALTH
DISTRICT ATTORNEY

MELISSA MONTGOMERY, EQUIRE  FOR ROBERT S. ADLEY

OPINION, TYLWALK, P.J., MARCH 23, 2017.
Defendant was charged with Attempted Homicide, Aggravated Assault, Endangering the Welfare of a Child, and Simple Assault 1 for causing multiple serious injuries to his infant daughter during the time period from March 15, 2013 through July 23, 2013.  On January 23, 2014, Defendant pled guilty pursuant to a negotiated plea agreement whereby the charge of Attempted Homicide would be nol prossed and he would enter an open plea to the remaining charges.  On February 26, 2014, Defendant was sentenced to an aggregate term of incarceration of eight and one-half to twenty years.  Defendant filed post-sentence motions challenging the discretionary aspects of his sentence.  We denied these motions by Order of July 3, 2014.  Defendant filed an appeal and his judgment of sentence was affirmed by the Superior Court of Pennsylvania by  decision dated January 28, 2015.
On September 30, 2015, Defendant filed a Petition pursuant to the Post Conviction Relief Act, 42 Pa.C.S.A. §9541 et seq (“PCRA”) asserting claims of ineffective assistance of counsel.  PCRA counsel was appointed and a counseled Amended PCRA Petition was filed on May 3, 2016.  We conducted a hearing on Defendant’s claims on August 18, 2016.  The transcript of that hearing has been prepared, both parties have submitted Briefs, and the matter is now before us for resolution.
The law presumes counsel has rendered effective assistance. Commonwealth v. Gonzalez, 858 A.2d 1219, 1222 (Pa.Super. 2004), appeal denied, 582 Pa. 695, 871 A.2d 189 (2005). To prevail on a claim of ineffective assistance of counsel, a petitioner must show, by a preponderance of the evidence, ineffective assistance of counsel 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. Turetsky, 925 A.2d 876 (Pa.Super. 2007), appeal denied, 596 Pa. 707, 940 A.2d 365 (2007). The petitioner must demonstrate: (1) the underlying claim has arguable merit; (2) counsel lacked a reasonable strategic basis for his action or inaction; and (3) but for the errors and omissions of counsel, there is a reasonable probability that the outcome of the proceedings would have been different. Id. at 880. “The petitioner bears the burden of proving all three prongs of the test.” Id. “Where it is clear that a petitioner has failed to meet any of the three, distinct prongs of the…test, the claim may be disposed of on that basis alone, without a determination of whether the other two prongs have been met.” Commonwealth v. Steele, 599 Pa. 341, 360, 961 A.2d 786, 797 (2008).
“Allegations of ineffectiveness in connection with the entry of a guilty plea will serve as a basis for relief only if the ineffectiveness caused the defendant to enter an involuntary or unknowing plea.” Commonwealth v. Moser, 921 A.2d 526, 531 (Pa.Super. 2007) (quoting Commonwealth v. Hickman, 799 A.2d 136, 141 (Pa.Super. 2002)). “Where the defendant enters his plea on the advice of counsel, the voluntariness of the plea depends on whether counsel’s advice was within the range of competence demanded of attorneys in criminal cases.” Moser, supra. Pennsylvania law does not require the defendant to “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, voluntarily and intelligently made.” Id. at 528–29. A guilty plea will be deemed valid if the totality of the circumstances surrounding the plea shows that the defendant had a full understanding of the nature and consequences of his plea such that he knowingly and intelligently entered the plea of his own accord. Commonwealth v. Fluharty, 632 A.2d 312 (Pa.Super. 1993). Pennsylvania law presumes the defendant is aware of what he is doing when he enters a guilty plea, and the defendant bears the burden to prove otherwise. Commonwealth v. Pollard, 832 A.2d 517, 523 (Pa.Super. 2003). Mere disappointment in the sentence does not constitute the necessary “manifest injustice” to render the defendant’s guilty plea involuntary. Id. at 522. See also Commonwealth v. Kelly, 5 A.3d 370, 377 (Pa.Super. 2010), appeal denied, 613 Pa. 643, 32 A.3d 1276 (2011) (reiterating principle that courts discourage entry of plea as sentence-testing device).
At the PCRA hearing, Defendant testified that he was initially represented by Kim Adams, Esquire (“Adams”) of the Lebanon County Public Defender’s Office.  However, Brian Deiderick, Esquire, Public Defender, was present with him in Court during his oral guilty plea colloquy due to Adams’ unavailability on that date.  Prior to entering his guilty plea, Defendant informed Deiderick that he did not want his charges to be read aloud in front of all the people in the courtroom.  Adams continued to represent Defendant throughout the filing of his post-sentence motions and appeal.  Due to Adams leaving the Public Defender’s Office, Nicholas Sidelnick, Esquire took over Defendant’s case during the pendency of the appeal.
Defendant first argues that Adams failed to inform him of the elements of the offenses of which he was charged and of potential defenses to those charges.  At the PCRA hearing, he explained that he believed that there “was quite a few things that weren’t gone over that could have helped me at a trial, maybe I would have beaten some of these charges.  Mainly, the Attempted Homicide and Aggravated Assault.”  (N.T. 8/18/16 at 8)  Defendant explained that he had dropped the infant down the stairs while he was intoxicated.  He also pointed to possible explanations for his daughter’s injuries other than his own actions.  For example, Defendant claimed that an older brother had fallen on top of the infant and another son had been climbing in and out of her crib.  He also pointed out that other individuals had been involved in his daughter’s care during that time period.  Defendant claimed that police knew of this information, but had withheld it from the child’s physicians.  He believed that he would have had a plausible defense to the charges had the physicians known these facts because they would have reached a different conclusion regarding the cause of his daughter’s injuries.   He complains that Adams failed to investigate and develop this defense prior to the entry of his plea and claims that, had this defense been developed, he would have gone to trial and not entered his guilty plea.
At the PCRA hearing, Adams testified that she met with Defendant at the Lebanon County Correctional Facility on several occasions.  First, she reviewed the Information with Defendant.  She explained that she had made clear that Defendant was charged with actually inflicting his daughter’s injuries.  She read the charges to him, advised him of the maximum penalties, and reviewed the police reports and discovery.
Adams noted that the child’s medical records were included in the discovery she reviewed with Defendant.  Although the full set was not initially available, once Adams had obtained all of them, she sent them to Defendant and returned to the prison to discuss them with him.  (N.T. 8/18/16 at 42-43)  Adams noted that she and Defendant spoke at length regarding possible defenses.  This included Defendant’s claim that the child had fallen down the stairs, 2 the fact that the child had other caregivers, and the presence of other children in the household.  During their meetings, the two discussed whether the others who had access to the child could have caused her injuries.  (N.T. 8/18/16 at 46)
At the hearing, Defendant did acknowledged that Adams met with him on multiple occasions and went over the elements of the offenses contained in the Information prior to entering his plea.  (N.T. 8/18/16 at 28)    He also confirmed that he was provided with all the discovery, including the medical records which set forth the doctor’s conclusions of what caused his daughter’s injuries.  However, he insisted that he and Adams did not discuss a defense based on an alternate explanation for his child’s injuries.  (N.T. 8/18/16 at 25-26)
Defendant’s claims are also belied by the written documentation of his plea.  He confirmed that he understood the elements of his charges and the possible defenses when he responded “yes” to various inquiries contained in his written Guilty Plea Colloquy.   Question Number 9 of the Guilty Plea Form asked “[d]o you understand the nature of the charges to which you’re pleading guilty?” Question Number 10 asked “[h]ad your lawyer explained to you the elements of the criminal offenses or offenses to which you’re pleading guilty?”  (N.T. 8/18/16 at 27)  Also, by answering “yes” to Question Number 11 on the  form, Defendant further admitted that his criminal conduct “fit the legal elements explained to you which make up the crimes” to which he was pleading guilty.  Defendant also represented to the Court that he had been made aware of and understood the elements of the charges and the potential defenses when he entered his oral plea.  (Guilty Plea Colloquy – N.T. 1/23/14 at 2; PCRA Hearing – N.T. 8/18/16 at 28)
We find no basis for relief on this issue as the evidence adduced at the PCRA hearing clearly contradicts Defendant’s contention.  By Defendant’s own admissions, he was fully apprised of the elements of his charges and the potential defenses prior to entering his plea.  He confirmed his understanding in his written guilty plea form and in his representations to the Court.  He also admits that he was in possession of his daughter’s medical records well before he entered his plea.  If Defendant believed that there were any shortcomings in the information provided to the physicians, he could have notified Adams of those inadequacies on the multiple occasions when the two met to go over those records.  If he felt that additional information would have provided him with a defense to the charges, he could have notified both Adams and the Court.
In addition, Adams specifically addressed Defendant’s contentions regarding the child’s fall down the steps when she outlined the plea agreement to Defendant in her letter dated January 8, 2014.  (PCRA Hearing, 8/18/16 – Exhibit “1”)  In that letter, Adams indicated to Defendant that such conduct could be considered “reckless behavior” with regard to the charge of Aggravated Assault.  (Exhibit “1”)  At the PCRA hearing, Defendant acknowledged that he pled guilty in order to avoid the potential twenty to forty year sentence for the Attempted Homicide charge, thus negating his contention that he would not have pled guilty if a defense based on other possible causes for the infant’s injuries had been more fully developed.  Thus, we find no error on the part of Adams.
Defendant next complains that Adams failed to argue on direct appeal that the sentence imposed on him was excessive.   This claim also has no merit.  Adams challenged Defendant’s sentence in Defendant’s appeal to the Superior Court.  This claim was addressed in the Superior Court’s decision which was issued on January 28, 2015.   Thus, Defendant is entitled to no relief on this basis.
Defendant next challenges the validity of his guilty plea, claiming that it was improperly induced by Adams’ false representation that he would receive a lesser sentence than he actually received.  Defendant claims that he relied on Adams’ January 8, 2014 letter discussing the amended plea agreement:
Please be advised that I have received an amended plea agreement in your case today.  The new plea agreement would call for dismissing count one, the  attempted homicide, and you would be plead (sic) open on the remaining charges, aggravated assault, reckless endangerment and simple assault.  Please do not think that because this plea offer is being made that the district attorney’s office does not have enough evidence on the attempted homicide.  As we have discussed before, the fact the child had numerous fractures and the fracture of the spin (sic), coupled with the doctors (sic) testimony that these types of injure (sic) could have caused death or serious paralysis would go towards the commonwealth’s argument of attempted homicide.  Please keep in mind on the aggravated assault charge, you could be found guilty at trial if your actions were reckless and this caused harm to your child.  We discussed the fall down the stairs and the fact you did not seek medical treatment.  This conduct could be considered reckless.  I would strongly suggest you consider taking this plea deal.  As we discussed in the past, if you take this to trial and you are found guilty of the attempted homicide, you would be facing 20-40 years in prison.  With the age of the child, I would say there is a great chance you would receive this as a sentence.  With the amended plea agreement the most you could get on count two, aggravated assault is 5 years and the most you could get on count three, reckless endangering is 1 year.  I will be in to discuss this with you.
(Exhibit “1”)
The language contained in this letter does appear to support Defendant’s argument that he pled guilty due to his belief that he would receive a lesser sentence than the one that was actually imposed.  However, when viewed in the context of the surrounding circumstances, we believe that Defendant was well aware that he could receive a lengthier sentence.  We also believe that the evidence adduced at the PCRA hearing indicates that Adams’ prediction of the sentence was not the sole reason for Defendant’s entry of his guilty plea.
At the PCRA hearing, Adams noted that she had reviewed the standard ranges applicable to Defendant and the possible maximum sentences. (N.T. 8/18/16 at 45)  She also informed him that the sentencing judge could give him any sentence up to the maximum.  (N.T. 8/18/16 at 45)  She explained that, given all of the information she had before her, she did not think that Defendant would receive a sentence in the aggravated range on the Aggravated Assault charge since he had a prior record score of zero.  (N.T. 8/18/16 at 44)   For that reason, she did not specifically go over the aggravated range on the Aggravated Assault charge.   However, Adams did not guarantee that he would receive the sentence set forth in her letter and Defendant knew that there was no agreement for that sentence.  In her letter, Adams reiterated the possible sentence Defendant could receive if convicted of the offense of Attempted Homicide.  At the PCRA hearing, Defendant admitted that he pled guilty in order to avoid that sentence.
There is no legal requirement that a defendant be aware of the sentencing guideline ranges in order to enter a valid guilty plea; a defendant must only be informed of the statutory maximum of his charges.  Commonwealth v. Fowler, 893 A.2d 758 (Pa. Super. 2006).   Adams had informed Defendant of the possible maximum sentences applicable to his other charges, had reviewed the sentencing guidelines, including the sentencing matrix, with him and advised him that the judge had discretion to impose a sentence within those ranges.  (N.T. 8/18/16 at 45)
Any misconceptions claimed by Defendant regarding his possible sentence were dispelled by the written and oral guilty plea colloquies.  Defendant’s written Guilty Plea Form listed the maximum punishments and fines applicable to his charges. Defendant testified that he knew he was entering an open plea, that he knew what an open plea was, and that he knew the judge could sentence him up to the maximum amount of time permitted by the law. (N.T. 8/18/16 at 28-29)  Under these circumstances, we find it unlikely that Defendant was unaware of the possibility that he could receive a lengthier sentence than that set forth in Adams’ letter.  Moreover, by his admission, his desire to avoid the possibility of conviction on the charge of Attempted Homicide was a basis of his decision to enter his guilty plea.  Thus, we find no relief to be warranted on this ground.
Defendant next claims that his guilty plea was not entered knowingly and voluntarily because he did not understand that he was pleading guilty to causing his daughter’s injuries by physical abuse and because he was not informed of the elements and nature of the charges at the time he entered his oral guilty plea.
We likewise find no basis for relief on these contentions.
Defendant admitted that he read the Information and understood the specific allegations against him.  (N.T. 8/18/16 at 32) All of the charges contained in the Information alleged that Defendant subjected his four-month old daughter “to severe physical abuse resulting in multiple injuries, including but not limited to, fractures of the vertebra, ribs and/or lower extremities.”  Adams reviewed these allegations with Defendant and he represented that he understood them.  She advised him that his claimed conduct in dropping the child down the stairs while intoxicated and failing to seek medical aid for her could be found to constitute “recklessness” on the Aggravated Assault charge.  Defendant’s understanding of the allegations was also evidenced by his request to Deiderick at the time he entered his oral guilty plea that the charges not be read in open court in front of all the people who were present in the courtroom.  (N.T. 8/18/16 at 35-36) 3  It was to these allegations that Defendant entered his plea.  Thus, we find no merit to this argument and no justification for collateral relief.
Defendant also argues that at Sentencing, the Commonwealth noted the child’s multiple injuries and that Adams failed to argue to the Court that the multiple injuries should not be considered as Defendant did not plead guilty to those offenses.
At Sentencing, the Court stated as follows:
THE COURT:  … When I read over the Affidavit of Probable Cause and some of the information that was there that the Commonwealth has already referred to, it was quite distressing to me because it was very clear based on that information that, unfortunately, your daughter was not victimized in a singular incident.  It’s very, very clear based on the medical finding that this was a series of things that occurred to her.  And you’re not charged with having been the perpetrator of all of the events, that’s not what I am saying, but clearly you are responsible for this event that led to the discovery of those other things.
And I think that I would be less than a human being to not be sitting here thinking hey, you know, if it happened this time who knows.  But, I am not sentencing you on the basis of anything other than this singular event which, Mr. Adley, in itself was horrific enough.
(Sentencing, 2/26/14 at 9)
Clearly, this claim has no merit as Defendant has shown no prejudice.  Defendant was not sentenced on the basis of any offenses or incidents other than those to which he pled guilty.  Thus, he has failed to allege any shortcoming on the part of Adams in this regard and we will dismiss this claim.
Lastly, Defendant challenges the legality of his sentence, arguing that the application of the mandatory minimum sentencing provision set forth at 42 Pa.C.S.A. §9718 violates the United States Supreme Court’s decision in Alleyne v. United States, 133 S. Ct. 2151 (2013).  We agree with Defendant on this point and will direct him to appear for resentencing on this ground.
Defendant was sentenced on February 26, 2014, in accordance with 18 Pa.C.S.A. §9718 which, in part, imposed a mandatory minimum five-year sentence for the offense of aggravated assault committed against persons under the age of thirteen years old:
§ 9718. Sentences for offenses against infant persons
(a) Mandatory sentence.—
(2) A person convicted of the following offenses when the victim is less than 13 years of age shall be sentenced to a mandatory term of imprisonment as follows:
18 Pa.C.S. § 2702(a)(1)–not less than five years.
(c) Proof at sentencing.–The provisions of this section shall not be an element of the crime, and notice of the provisions of this section to the defendant shall not be required prior to conviction, but reasonable notice of the Commonwealth’s intention to proceed under this section shall be provided after conviction and before sentencing. The applicability of this section shall be determined at sentencing. The court shall consider any evidence presented at trial and shall afford the Commonwealth and the defendant an opportunity to present any necessary additional evidence and shall determine, by a preponderance of the evidence, if this section is applicable.
(d) Authority of court in sentencing.–There shall be no authority in any court to impose on an offender to which this section is applicable any lesser sentence than provided for in subsection (a) or to place the offender on probation or to suspend sentence. Nothing in this section shall prevent the sentencing court from imposing a sentence greater than that provided in this section. Sentencing guidelines promulgated by the Pennsylvania Commission on Sentencing shall not supersede the mandatory sentences provided in this section.
42 Pa.C.S.A. §9718(a)(2), (c)-)d).
On June 17, 2013, the United States Supreme Court issued its opinion in Alleyne, holding that “facts that increase mandatory minimum sentences must be submitted to the jury” and must be found beyond a reasonable doubt.  Alleyne, supra at 2163.  In Commonwealth v. Wolfe, 106 A.3d 800 (Pa. Super. 2014), aff’d 140 A.3d 651 (Pa. 2016), the Superior Court of Pennsylvania considered Section §9718 in light of Alleyne, and held that the statute was facially unconstitutional as its applicability was dependent on factual findings made by the trial judge, not the jury, by a preponderance of the evidence, and not beyond a reasonable doubt.   In Commonwealth v. Trivett, 2015 WL 7301909 (Pa. Super. 2015) (non-precedential decision), the Superior Court’s holding in Wolfe was held to extend to cases in which the defendant had entered a guilty plea.  Thus, because Defendant’s judgment of sentence had not become final prior to the Alleyne decision and he was sentenced pursuant to an unconstitutional statute, we will vacate his sentence and direct him to appear for resentencing without consideration of the mandatory minimum sentencing provision of Section 9718.
1 Counts 1 through 4, 18 Pa.C.S.A. §901/2501(a); 18 Pa.C.S.A.§2702(a)(1); 18 Pa.C.S.A. §4304(a)(1); and 18 Pa.C.S.A. §2701(a)(1), respectively.

2 She explained to Defendant that his alleged conduct of dropping the infant on the stairs while he was intoxicated could potentially be viewed as the “recklessness” necessary to sustain the charge of Aggravated Assault.

3 It is common for inmates to ridicule or threaten fellow inmates who are charged with abusing children.  Many who are charged with child-related offenses do not want their charges read in open court.