J-S18012-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JOSHUA ALLEN KREISER,
Appellant No. 1220 MDA 2015
Appeal from the PCRA Order June 29, 2015
In the Court of Common Pleas of Lebanon County
Criminal Division at No(s):
CP-38-CR-0000983-2013
BEFORE: BOWES, LAZARUS AND STRASSBURGER,* JJ.
MEMORANDUM BY BOWES, J.: FILED MARCH 04, 2016
Joshua Allen Kreiser appeals from the June 29, 2015 order denying
PCRA relief. We affirm.
On August 6, 2013, Appellant pled guilty to one count each of
aggravated assault, terroristic threats, simple assault, and false
imprisonment, and two counts of recklessly endangering another person.
Appellant stabbed twenty-five year old Eric Saxbie in the lower back near
the kidney. Eleni Solesky, the mother of Appellant’s child, witnessed the
stabbing and then locked herself in the bathroom. Appellant told her he
would put down the knife if she would talk to him. Ms. Solesky began
talking to Appellant, but when she began crying, Appellant picked up the
knife and repeated his demand. Ms. Solesky told police she was in the
*
Retired Senior Judge assigned to the Superior Court.
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bathroom for two hours. Both Mr. Saxbie and Ms. Solesky identified
Appellant as the perpetrator.
Appellant entered a negotiated guilty plea to all charges on December
19, 2013, following completion of a written guilty plea colloquy and an on-
the-record oral colloquy. He was sentenced to five and one-half years to
fifteen years imprisonment on January 22, 2014, and he did not appeal.
On January 23, 2015, Appellant filed a timely pro se PCRA petition and
Attorney Nicholas Sidelnick was appointed to represent him. Counsel
subsequently filed an amended petition on Appellant’s behalf. Following an
evidentiary hearing on May 26, 2015, and the filing of briefs, the PCRA court
denied relief on June 29, 2015, finding no merit in Appellant’s claim that his
guilty plea was unknowing and involuntary due to ineffective assistance of
counsel.
Appellant timely appealed and he presents one issue for our
consideration:
1. Whether Plea Counsel was ineffective for unlawfully inducing
Appellant into pleading guilty to Aggravated Assault, where
such plea was involuntarily, unknowingly, and unintelligently
made, as neither Plea Counsel nor the Commonwealth
advised Appellant of the elements that needed to be proven
in order to convict Appellant of Aggravated Assault, since
such elements ceased to exist and, therefore, Appellant would
not have reasonably been found guilty had he taken his case
to trial?
Appellant’s brief at 4.
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Initially, we note that our "standard of review of the denial of a PCRA
petition is limited to examining whether the evidence of record supports the
court's determination and whether its decision is free of legal error."
Commonwealth v. Smith, 121 A.3d 1049, 1052 (Pa.Super. 2015). “Our
scope of review is limited to the findings of the PCRA court and the evidence
of record, viewed in the light most favorable to the prevailing party at the
PCRA court level.” Commonwealth v. Medina, 92 A.3d 1210, 1214-15
(Pa.Super. 2014) (citations and quotation marks omitted). When the PCRA
court’s credibility determinations are supported by the record, they are
binding on this Court. The PCRA court’s legal conclusions, however, are
reviewed de novo. Id.
Appellant’s claim is based on the alleged ineffectiveness of plea
counsel. Counsel is presumed to have rendered effective representation.
Commonwealth v. Stewart, 84 A.3d 701, 707 (Pa.Super. 2013). The test
for establishing that trial counsel was ineffective in Pennsylvania is based
upon Strickland v. Washington, 466 U.S. 668 (1984) and
Commonwealth v. Pierce, 527 A.2d 973 (Pa. 1987). Commonwealth v.
Spotz, 84 A.3d 294, 303 n.3 (Pa. 2014). "To establish trial counsel's
ineffectiveness, a petitioner must demonstrate: (1) the underlying claim has
arguable merit; (2) counsel had no reasonable basis for the course of action
or inaction chosen; and (3) counsel's action or inaction prejudiced the
petitioner." Id.; Commonwealth v. Johnson, 966 A.2d 523, 536 (Pa.
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2009). If the petitioner fails to meet any one of the three prongs, he is not
entitled to relief. Commonwealth v. Natividad, 938 A.2d 310 (Pa. 2007).
Appellant pled guilty to several charges including aggravated assault
pursuant to 18 Pa.C.S. § 2702(a)(1), which provides:
A person is guilty of aggravated assault, graded as a
felony of the first degree, 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. § 2702(a)(1).
The crux of Appellant's complaint is that plea counsel's failure to
inform him of the elements of aggravated assault constituted ineffective
assistance of counsel and caused him to enter an involuntary, unknowing
and unintelligent plea to that charge.1 It is well-settled that ineffective
assistance of counsel claims that are founded on the plea-bargaining process
are eligible for review under the PCRA. Commonwealth ex rel. Dadario v.
Goldberg, 773 A.2d 126 (Pa. 2001). However, where the underlying
ineffectiveness implicates a guilty plea, such a claim will provide relief only
"if the ineffectiveness caused an involuntary or unknowing plea."
Commonwealth v. Diaz, 913 A.2d 871, 872 (Pa.Super. 2006). In
determining whether a plea was knowing, intelligent, and voluntary, we
____________________________________________
1
Appellant does not challenge or seek to withdraw his guilty plea to the
remaining five charges.
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consider the totality of the circumstances, including any written and oral
plea colloquies. Commonwealth v. Allen, 732 A.2d 582, 587 (Pa. 1999);
Commonwealth v. Bedell, 954 A.2d 1209 (Pa.Super. 2008). Where a
petitioner alleges that guilty plea counsel was ineffective, he must
demonstrate that, absent counsel's incorrect advice or failure to advise,
there is a reasonable probability he would have not have pled guilty and
would have proceeded to trial. Commonwealth v. Barndt, 74 A.3d 185
(Pa.Super. 2013).
Appellant charges counsel with failing to explain the elements of
aggravated assault and, consequently, complains he did not understand the
elements of the offense when he pled guilty. Had he been apprised of the
elements, he maintains he would have opted to proceed to trial rather than
accept a plea because he could not have reasonably been found guilty of the
offense.
At the evidentiary hearing, Appellant offered the following testimony.
He met with counsel three or four times. N.T., 5/26/15, at 4. Counsel
provided him with discovery, which included the criminal information that
outlined each of the charges against him. Id. at 6. However, Appellant
stated that he did not understand the elements of the offenses with which he
was charged. In his next breath, Appellant conceded that he knew that he
was charged with inflicting serious bodily injury, but he believed the charge
was unjustified and conveyed that belief to counsel. Id. at 4-5. According
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to Appellant, counsel agreed and stated he would try to get the aggravated
assault charge dropped or reduced. Id. at 9. Counsel subsequently advised
Appellant that the Commonwealth refused to reduce or drop the aggravated
assault charge. Id. As a result of that conversation, Appellant pled guilty.
Id.
At the evidentiary hearing, Appellant told the PCRA court that he did
not believe he could have been convicted of aggravated assault based on the
infliction of serious bodily injury because the victim only received three
stitches. Appellant also maintained that he was high on an illicit drug when
he stabbed the victim with a knife and did not have the requisite intent to
harm him for an attempt to cause serious bodily injury. The court countered
that voluntary intoxication was not a defense to the charge. Id. at 18.
Appellant admitted that counsel was present when he completed the
written guilty plea colloquy; counsel answered his questions; he understood
the answers; and he was being truthful when he answered the questions.
Id. at 10. He answered in the affirmative Question No. 9, “Do you
understand the nature of the charge or charges to which you are pleading
guilty?” and Question No. 10 “Has your lawyer explained to you the
elements of the criminal offense or offenses to which you are pleading
guilty?” Id. at 11. Appellant admitted committing the crimes to which he
was pleading guilty and agreed that his criminal conduct fit the legal
elements of the crimes charged. See Colloquy, Exhibit 1, Question No. 11.
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When questioned by the court orally at the time he entered his plea,
Appellant did not apprise the court that he did not understand the charges or
believe that the elements were not met. N.T., 5/26/15, at 13-14.
Attorney Sidelnick testified that he was appointed by the court to
represent Appellant. He confirmed that he met with his client four or five
times. During their first meeting prior to the preliminary hearing, he
reviewed the charges with Appellant, including the elements of aggravated
assault. Id. at 21. Counsel explained that the Commonwealth would either
have to prove that Appellant caused serious bodily injury or attempted to
cause serious bodily injury to sustain a conviction for aggravated assault.
Id. He defined serious bodily injury for Appellant and discussed an attempt
to cause serious bodily injury. Id. Later, Counsel provided his client with
discovery and reviewed it with him, specifically discussing the
Commonwealth’s differing proof requirements when proceeding under a
theory of attempted serious bodily injury rather than serious bodily injury.
He answered Appellant’s questions and Appellant appeared to understand
the responses provided. Id. at 22. Although they discussed proceeding to
trial, many of Appellant’s questions related to the plea offer. Id. at 22-3.
According to plea counsel, Appellant told him that he wanted a plea offer of
three to ten years imprisonment. When counsel tried to obtain such a plea
offer, the Commonwealth refused due to Appellant’s juvenile record.
Counsel testified that he and Appellant had multiple discussions focused on
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amending the plea to attempted serious bodily injury as the offense gravity
score would then be a second-degree felony, but the Commonwealth was
not amenable. At that point, Appellant desired to take the negotiated plea.
Id. at 25.
Counsel acknowledged that Appellant told him he had smoked K-2,
which is marijuana, prior to the stabbing. Although counsel did not have a
specific recollection of discussing the effect of Appellant’s voluntary
intoxication on the aggravated assault charge, he was certain that he would
have indicated that it was not a defense. Id. at 28.
The transcript of the plea hearing confirms that the nature of the
aggravated assault charge was stated on the record in Appellant’s presence.
N.T., 12/19/13, at 3 (Appellant was charged with aggravated assault, an
“attempt to cause of intentionally, knowingly, or recklessly did cause bodily
injury to another under circumstances manifesting extreme indifference to
the value of human life. He stabbed a person with a knife.”). Appellant
responded in the affirmative to the court’s inquiry whether he understood
the charges, and confirmed that he was pleading guilty because he
committed those offenses. Appellant also advised the court that he had
discussed his case fully with counsel, that he was satisfied with his
representation, and that he understood all of the questions on the written
guilty plea form. Id. at 5-6.
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The PCRA court found that Appellant and counsel discussed the
elements of aggravated assault, the factual basis for the charge, possible
defenses, what constituted serious bodily injury and the difference between
causing serious bodily injury and attempting to cause serious bodily injury.
Trial Court Opinion, 6/29/15, at 8. Appellant admittedly told his attorney
that he was under the influence of an illicit substance when he stabbed the
victim. The court credited counsel’s testimony that he would have advised
Appellant that voluntary intoxication was not a defense. Id. Both the oral
and written colloquies provided that Appellant understood the nature of the
offenses and that counsel tendered effective representation. Id. The PCRA
court concluded that Appellant’s underlying claim that his guilty plea was
involuntarily and unknowingly entered had no merit.
We have no basis to disturb the PCRA court’s findings as they are
amply supported by the record. Based on those findings and the written and
oral colloquies, it is apparent that Appellant understood the elements of the
aggravated assault charge to which he was pleading guilty, appreciated that
he had a right to a jury trial, and agreed to the terms of the negotiated plea.
His plea was knowingly and voluntarily entered.
Appellant also argues that plea counsel was ineffective for failing to
obtain the victim’s medical records, which would have confirmed that serious
bodily injury could not be proven. Since Appellant did not advance this
argument in his amended PCRA petition or explore it at the evidentiary
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hearing, this argument is waived. See Pa.R.A.P. 302(a) (“Issues not raised
in the lower court are waived and cannot be raised for the first time on
appeal.”).
For all of the foregoing reasons, no relief is due.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/4/2016
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