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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JEREMY ALLEN TRESSELT
Appellant No. 1322 MDA 2016
Appeal from the PCRA Order July 8, 2016
In the Court of Common Pleas of Lebanon County
Criminal Division at No(s): CP-38-CR-0000489-2014
CP-38-CR-0001040-2014
BEFORE: PANELLA, J., OTT, J., and MUSMANNO, J.
MEMORANDUM BY OTT, J.: FILED APRIL 10, 2017
Jeremy Allen Tresselt appeals from the order entered July 8, 2016, in
the Court of Common Pleas of Lebanon County that denied, after an
evidentiary hearing, Tresselt’s first petition filed pursuant to the
Pennsylvania Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546.
Tresselt contends trial counsel was ineffective (1) in failing to seek a
reduction in restitution prior to his sentencing, which would have allowed
him to comply with the terms of his initial plea agreement, and would have
resulted in a lesser sentence than the sentence ultimately imposed; (2) in
failing to object to the grading of the criminal mischief charge at Docket No.
489-2014; (3) in failing to object to the grading of the theft charge at
Docket No. 489-2014; and (4) in advising Tresselt that the grading of the
offenses at Docket No. 489-2014 would be reduced by the sentencing judge
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at the time of sentencing. See Tresselt’s Brief at 1–2. Based upon the
following, we affirm.
The PCRA court has summarized the background of this case, as
follows:
On February 11, 2014, Jeremy Allen Tresselt [] was charged in
Docket 489-2014 with additional [sic] offenses, including
Conspiracy to Commit Theft, Possession of an Instrument of
Crime, and Criminal Mischief. These charges stem from an
incident that occurred on February [11], 2014, where [Tresselt]
used a blow torch in an effort to break into an ATM machine.
On March 25, 2014, [Tresselt] was charged in Docket 1040-2014
with numerous crimes, including Burglary, Conspiracy to Commit
Burglary, Possession of an Instrument of Crimes, Corruption of
Minors, Loitering and Prowling at Night and Criminal Mischief. All
of these charges stem from an incident that occurred on January
17, 2014, in Millcreek Township of Lebanon County. [Tresselt]
entered a plea of guilty[1] to all charges in both dockets on
October 23, 2014. The pleas were entered pursuant to a global
agreement that called for [Tresselt] to receive 11½ months in
the Lebanon County Prison provided that $1,600 restitution was
paid at or before the time of sentencing. Following [Tresselt’s]
plea, sentencing was postponed on numerous occasions.1
_________________________________________
1
On one of these occasions, [Tresselt’s] attorney
represented to the Court that [Tresselt] was hospitalized.
Later, the attorney learned that [Tresselt] had lied to him
about being hospitalized.
_________________________________________
When [Tresselt’s] case was finally called for sentencing on
March 18, 2015, [Tresselt] failed to appear. A bench warrant
____________________________________________
1
The record reflects the pleas were nolo contendere. See Nolo Contendere
Plea, 10/23/2014.
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was issued. [Tresselt] was not apprehended on the bench
warrant until May 12, 2015.
[Tresselt’s] case was initially called for sentencing on June 17,
2015. At that time, [Tresselt] did not have any money to
contribute toward restitution. As a result, the Commonwealth
withdrew its plea agreement offer. The Court then granted
[Tresselt’s] request to withdraw his plea of guilty. The case was
scheduled for a trial in August of 2015. In addition, we granted a
request to withdraw appearance by Corey Lamoureux, Esquire,
who was [Tresselt’s] initial counsel. We appointed Jessica
Weaver, Esquire[,] in the place of Attorney Lamoureux.
Subsequently, Attorney Loreen Burkett entered her appearance
on behalf of [Tresselt].
On August 12, 2015, [Tresselt] entered another plea of guilty to
all charges. This second plea was an open one. Pursuant to this
open plea, [Tresselt] appeared for sentencing on October 28,
2015. We imposed a sentence to 2 to 6 years in a state
correctional facility. …
****
On November 30, 2015, [Tresselt] filed a pro se document
entitled “Motion to Correct Illegal Sentence.” Simultaneously, he
filed another pro se document self- styled as a “Motion for Post-
Sentence Relief.” We subsequently granted [Tresselt] an
extension of time to file an Amended Post-Sentence Relief
Petition. He filed another such Petition on February 10, 2016.
Although styled as a Post-Sentence Relief Petition, the essence
of [Tresselt’s] amended motion was to raise issues of ineffective
assistance of counsel. In fact, [Tresselt] articulated in his motion
“that he is entitled to relief under the Post-Conviction Relief Act
due to ineffective assistance of counsel and the imposition of an
improper sentence.”
We treated [Tresselt’s] post-sentence motion as a PCRA request
for relief. [Counsel was appointed and filed an amended PCRA
petition.] We scheduled a hearing take place. On July 7, 2016,
we presided over a factual hearing. …
PCRA Court Opinion, 9/21/2016, at 1–4 (underlining in original).
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Following the evidentiary hearing, the PCRA court denied Tresselt’s
petition for PCRA relief, and this appeal followed.2
The principles that guide our review are well settled:
“[A]s a general proposition, we review a denial of PCRA relief to
determine whether the findings of the PCRA court are supported
by the record and free of legal error.” Commonwealth v.
Dennis, 609 Pa. 442, 17 A.3d 297, 301 (Pa. 2011) (citation
omitted). A PCRA court’s credibility findings are to be accorded
great deference, and where supported by the record, such
determinations are binding on a reviewing court. Id., at 305
(citations omitted).
****
To be entitled to relief on an ineffectiveness claim, a PCRA
petitioner must establish: (1) the underlying claim has
arguable merit; (2) no reasonable basis existed for counsel’s
action or failure to act; and (3) he suffered prejudice as a result
of counsel’s error, with prejudice measured by whether there is a
reasonable probability the result of the proceeding would have
been different. Commonwealth v. Chmiel, 612 Pa. 333, 30
A.3d 1111, 1127 (Pa. 2011) (employing ineffective assistance of
counsel test from Commonwealth v. Pierce, 515 Pa. 153, 527
A.2d 973, 975-76 (Pa. 1987)). Counsel is presumed to have
rendered effective assistance. Commonwealth v. Ali, 608 Pa.
71, 10 A.3d 282, 291 (Pa. 2010). Additionally, counsel cannot be
deemed ineffective for failing to raise a meritless claim.
Commonwealth v. Jones, 590 Pa. 202, 912 A.2d 268, 278 (Pa.
2006). Finally, because a PCRA petitioner must establish all the
Pierce prongs to be entitled to relief, we are not required to
analyze the elements of an ineffectiveness claim in any specific
order; thus, if a claim fails under any required element, we may
dismiss the claim on that basis. Ali, at 291.
Commonwealth v. Treiber, 121 A.3d 435, 444-445 (Pa. 2015).
____________________________________________
2
Tresselt timely complied with the order of the PCRA court to file a Pa.R.A.P.
1925(b) statement.
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Tresselt first contends counsel was ineffective in failing to seek a
reduction in restitution prior to his initial sentencing date of June 17, 2015.
As stated by the PCRA court, on October 23, 2014, the Commonwealth
offered a global plea agreement by which Tresselt would receive an 11½-
month minimum sentence of incarceration in the Lebanon County
Correctional Facility, provided that he paid restitution of approximately
$1,600.00 prior to or at sentencing. However, on June 17, 2015, when
Tresselt did not have the restitution payment, the Commonwealth withdrew
the plea offer. Tresselt subsequently entered an open plea and received a
two-to-six year sentence of imprisonment. Following his October 28, 2015,
sentencing, Tresselt’s restitution obligation was lowered to approximately
$530.00. Tresselt asserts trial counsel’s ineffectiveness in failing to object to
the restitution amount prior to June 17, 2015, caused him to be unable to
comply with the terms of the negotiated plea offer, which, in turn, led to the
open plea and his current sentence, rather than the 11½ month county
sentence.
At the PCRA hearing, Corey Lamoureux, Esquire, who represented
Tresselt at the time of the initial plea agreement, testified the first time he
could recall Tresselt indicating there was an issue with the restitution
payment was at the time scheduled for sentencing. See N.T., 7/7/2016, at
28. Mr. Lamoureux further testified that the Commonwealth’s plea offer was
based on restitution “paid in full prior to sentencing.” Id. at 29.
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The PCRA court analyzed the testimony, as follows:
At the hearing on July 7, 2016, [Tresselt] testified that his
restitution was reduced following sentencing from approximately
$1,600 to approximately $530. He testified that he could not pay
the larger amount when his case was called for sentencing in
June of 2015, but he could have paid the smaller amount. He
alleges that his counsel was ineffective for failing to negotiate a
lower restitution amount prior to the date of his guilty plea [sic].
In response, Attorney Lamoureux testified that [Tresselt] had
always led him to believe that payment of $1,600 at sentencing
would not be a problem. It was not until sentencing itself that
Attorney Lamoureux learned that [Tresselt] did not have $1,600.
In fact, at sentencing [Tresselt] had nothing at all. Had
[Tresselt] been able to pay even a percentage of the restitution
amount, Attorney Lamoureux testified that he would have
initiated additional negotiations with the Commonwealth in an
effort to preserve the plea agreement.
Once the Commonwealth withdrew its plea agreement in June of
2015, the plea agreement was never again reinstated. []
Attorney Weaver indicated that [when] she was appointed, she
inquired with the Commonwealth whether it would reinstate the
previously-offered plea agreement, and the Commonwealth
responded that it would not.
We find the testimony of Attorney Weaver and Attorney
Lamoureux to be more credible than the testimony offered by
[Tresselt]. Specifically, we conclude that [Tresselt] was never
prepared to pay any amount of restitution that would have
triggered applicability of the 11½ month plea agreement.
Moreover, no evidence was presented that the Commonwealth
would have agreed to honor the 11½ month plea agreement in
return for payment by [Tresselt] of an amount less than full
restitution. For either of these reasons, we conclude that
counsel’s alleged failure to take action in order to reduce
restitution from $1,600 to $530 would not have made any
difference with respect to the Commonwealth’s decision to
withdraw its plea agreement.
PCRA Court Order, dated 7/8/2016, filed 7/11/2016, at 5-6, ¶¶M-O.
The PCRA court, in its opinion, further reasoned:
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No defendant enjoys a right to a plea agreement. See, e.g.
Commonwealth v. McElroy, 6[6]5 A.2d 813, 816 (Pa. Super.
1995). Just as the Commonwealth has the authority to offer a
plea agreement, so too does it have the authority to withdraw an
offered plea agreement. See e.g. Commonwealth v. McElroy,
supra; Commonwealth v. Spence, 627 A.2d 1176 (Pa. 1993).
In this case, the Commonwealth withdrew its local sentence plea
offer when [Tresselt] failed to have restitution at the time of his
initial sentencing. Once the plea offer was withdrawn, it was
never again reinstated. We cannot blame [Tresselt’s] former
counsel for this situation; the loss of his plea offer was
exclusively caused by the fact that [Tresselt] did not have the
$1,600 he promised he would have at the time of sentencing.
PCRA Court Opinion, 9/21/2016, at 9–10. Based on our review, we discern
no basis upon which to disturb the PCRA court’s determination.
Following the plea, based on Tresselt’s representations, Attorney
Lamoureux filed at least two continuances, and later discovered Tresselt had
lied to him about being hospitalized. See N.T., 7/7/2016, at 31. In
addition, a bench warrant was issued for Tresselt for sentencing. See id. at
28. On rebuttal, Tresselt testified that at the time of the originally
scheduled sentencing hearing, “I never said anything [to Attorney
Lamoureux] about what I could afford or stuff like that. … With the amount
at time [sic] I thought it was actually rather easy to accumulate $1,600, but
it rather wasn’t because at the time I wasn’t working.” Id. at 41. Tresselt
further testified: “The only reason that I had absconded … is because I
didn’t have $1,600 to pay my restitution. I fabricated the story to buy me
more time to try to accumulate the money.” Id. at 42.
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We agree with the PCRA court that former counsel cannot be held
ineffective based upon Tresselt’s failure to pay the amount of restitution that
Tresselt promised to pay at sentencing in exchange for the plea offer. As
such, Tresselt’s first claim of ineffectiveness fails.
In his second issue, Tresselt contends that former counsel was
ineffective in failing to object to the grading of the criminal mischief charge
at Docket 489-2014 prior to the time of sentencing. In his third issue,
Tresselt contends that former counsel was ineffective in failing to object to
the grading of the theft charge at Docket 489-2014, prior to the time of
sentencing. We address these issues together.
The Crimes Code provides that criminal mischief is graded as a third
degree felony if the amount of loss caused is in excess of $5000.00, and is
graded as a second degree misdemeanor if the amount of the loss is greater
than $1000.00. See 18 Pa.C.S. § 3304. The criminal mischief charge,
which arose from Tresselt’s use of a blow torch on an ATM, was graded as a
third degree felony based on damage in excess of $5,000.00. Tresselt,
however, argues the only evidence of value ever provided to him was the
owner’s statement that it would cost $2,000.00 to replace the ATM.
Therefore, Tresselt claims counsel was ineffective in failing to request
modification of the grading of the criminal mischief charge, which caused
him to receive a longer sentence.
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With regard to the grading of theft offenses, the applicable statute is
18 Pa.C.S. § 3903. Relevant to Tresselt’s argument, Section 3903 provides
that theft “constitutes a felony of the third degree if the amount involved
exceeds $2,000,” 18 Pa.C.S. § 3903(a.1), and “if the property was not taken
from the person or by threat, or in breach of fiduciary duty and: … the
amount involved was less than $50 constitutes a misdemeanor of the third
degree.” 18 Pa.C.S. § 3903(b)(2). Subsection 3903(c) provides, in relevant
part, “When the value of property cannot be satisfactorily ascertained … its
value shall be deemed less than $50.” 18 Pa.C.S. § 3903(c)(3). Tresselt
argues that although the ATM owner’s statement to police indicated there
was approximately $7,000 in the ATM, there was no verified documentation
regarding the amount of money, and therefore valuation should have been
deemed to be less than $50. Tresselt maintains counsel was ineffective in
failing to request modification of the theft charge to a third degree
misdemeanor.
At the PCRA hearing, Attorney Lamoureux, who represented Tresselt
at the time of the plea agreement offer, and Attorney Weaver, who
represented Tresselt for the open guilty plea, both testified that Tresselt
raised his concern about the grading of the criminal mischief and theft
charges with them, and that they had advised him if he wanted to challenge
the grading he would have to proceed to trial. N.T., 7/7/2016, at 30, 36.
Attorney Lamoureaux testified that Tresselt chose to go through with a
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negotiated plea, and Attorney Weaver testified Tresselt chose to go through
with an open plea. See id. at 30, 37. Attorney Weaver testified Tresselt
never requested to withdraw his plea. See id. at 37.
Based on our review, we find that the PCRA court properly rejected
these ineffectiveness claims. Furthermore, based on the full discussion set
forth in the PCRA court’s opinion, we simply reiterate:
[Tresselt] entered a plea of guilty on August 12, 2015. At that
plea proceeding, the Judge outlined all of the charges on both
dockets. (Guilty Plea N.T. 3-7). As to all the charges, [Tresselt]
indicated that he understood what was being charged. (N.T. 4;
7). The Court also outlined for [Tresselt] the total maximum
penalties that he would face on the charges lodged against him.
(N.T. 9). Further, the Judge told [Tresselt] that his plea was an
open one and that “any sentence you receive would be totally at
the discretion of your sentencing judge.” [Tresselt] indicated
that he understood this. (N.T. 10).
In addition to the Court’s verbal colloquy, [Tresselt] completed
written guilty plea colloquies. On the face sheet of each guilty
plea colloquy was a list of charges together with the grading of
each charge. In his written guilty plea form, [Tresselt]
acknowledged that he was pleading guilty voluntarily and that no
plea agreement governed his plea of guilty (See Guilty Plea
Colloquies filed in Open Court on August 12, 2015). After
[Tresselt] entered his plea, he endorsed the Criminal Information
by signing a Guilty Plea on the reverse side. The Criminal
Informations clearly outlined the grading of the offenses lodged
against [Tresselt].
At the PCRA Hearing conducted on July [7], 2016, both Attorney
Lamoureux and Attorney Weaver testified that [Tresselt] was
told he was entering pleas of guilty to felony offenses. Neither
Attorney Weaver nor Attorney Lamoureux promised anything
less. In fact, both attorneys advised [Tresselt] that if he wished
to challenge the grading of the offenses, he would have to do so
at trial. Nevertheless, he proceeded with his plea of guilty.
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Given all of the above information, it is crystal clear to this Court
that [Tresselt] entered a global plea of guilty to numerous felony
and misdemeanor offenses knowingly and voluntarily. He was
not induced to enter his pleas by intentional or negligent
misrepresentations by counsel, nor was he promised by anyone
that the felony charges he admitted committing would be
reduced to misdemeanors. In short, there is absolutely no
reason why the validity of [Tresselt’s] plea should be impugned.
At the time of his PCRA Hearing, [Tresselt] seems to indicate
that the Commonwealth could not have established a felony at
trial. While we doubt that this is in fact true, it does not matter
whether the Commonwealth would or could not have proven
something at trial. The fact remains that [Tresselt] admitted that
he committed felony grade offenses. His admission rendered a
trial unnecessary.
PCRA Opinion, 9/21/2016, at 7–9 (footnote omitted) (emphasis in original).
We agree with the PCRA’s court’s analysis. Tresselt was aware that
the criminal mischief charge and the theft charge were graded as third
degree felonies, and yet chose to enter an open plea. At the PCRA hearing,
Tresselt admitted that when he proceeded to sentencing he “did not ask to
withdraw [his] pleas,” and “never asked to proceed to trial.” N.T., 7/7/2016,
at 20. Tresselt further admitted that he complained about the grading of the
offenses at sentencing, stating:
I never once had a chance to sit there and file necessary
motions because I didn’t feel like going through those loopholes.
[N.T., 10/28/2015 (Sentencing Hearing), at 8–9.]
N.T., 7/7/2016, at 20. Tresselt acknowledged he chose to proceed with
sentencing on the “F-3” grading. Id. at 20–21. Accordingly, Tresselt’s
second and third ineffectiveness claims fail.
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Lastly, Tresselt argues that trial counsel provided ineffective assistance
by advising him that the grading of his offenses would be reduced at the
time of sentencing by the sentencing judge. Attorney Lamoureux and
Attorney Weaver denied telling Tresselt the charges would be amended at
sentencing. See id. at 31, 37. Both attorneys testified they told Tresselt he
could challenge the grading if he chose to proceed to trial. Id. at 30, 36.
Regarding Tresselt’s claim, the PCRA Court found trial counsels’ testimony to
be credible, and determined that Tresselt was not credible. See PCRA Court
Opinion, 9/21/2016, at 10 (“As we stated in our July 8, 2016, Court Order,
this Court found the testimony of Attorney Lamoureux and Attorney Weaver
to be credible, and we did not believe [Tresselt].”).
Following the entry of Tresselt’s open plea, Loreen Burkett, Esquire,
was appointed to represent Tresselt at sentencing on both dockets. She
testified that prior to sentencing, he never requested to withdraw his plea.
N.T., 7/7/2016, at 38. She stated she looked into the grading issue because
she was aware Tresselt was unhappy about it. See id. at 39. After
researching the issue, she advised Tresselt that the offenses “were graded
appropriately as far as him pleading guilty,” and nothing more could be
done. Id. She advised Tresselt to proceed to sentencing. See id.
Attorney Burkett’s testimony that Tresselt was unhappy about the
grading after entering his open plea and had discussion with Tresselt
regarding the grading issue supports the PCRA court’s credibility
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determinations that Attorneys Lamoureux and Weaver never promised
Tresselt the charges would be reduced at sentencing. Therefore, we reject
Tresselt’s final ineffectiveness claim.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/10/2017
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