J-S28008-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MARY KATE O’DONNELL
Appellant No. 909 WDA 2016
Appeal from the PCRA Order June 2, 2016
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0008308-2013
BEFORE: OLSON, MOULTON and STRASSBURGER,* JJ.
MEMORANDUM BY OLSON, J.: FILED MAY 23, 2017
Appellant, Mary Kate O’Donnell, appeals from the order entered on
June 2, 2016, denying relief on her petition filed pursuant to the Post
Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.
We briefly summarize the facts and procedural history of this case as
follows. On May 8, 2013, police responded to a residential stabbing in
Stowe Township, Pennsylvania. The victim suffered a stab wound to his
abdomen. His heart stopped twice en route to the hospital, where he spent
the next 15 days recovering. The victim underwent multiple surgeries for a
broken jaw caused by a fall after the stabbing and now uses a colostomy
bag. Upon investigation, police determined that Appellant and the victim
had a tumultuous domestic relationship and that Appellant was the
* Retired Senior Judge assigned to the Superior Court.
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perpetrator. The Commonwealth charged Appellant with criminal attempt
homicide and aggravated assault.1
On February 18, 2014, Appellant entered into a negotiated guilty plea
wherein she agreed to plead guilty to aggravated assault and, in exchange,
the Commonwealth withdrew the attempted homicide charge. The trial
court accepted the plea and sentenced Appellant to three to eight years of
incarceration followed by three years of probation. Appellant did not appeal
that decision.
On February 22, 2015, Appellant filed a pro se PCRA petition. The
PCRA court appointed counsel. On November 23, 2015, appointed counsel
filed an amended PCRA petition. The PCRA court held an evidentiary hearing
on April 11, 2016. On June 2, 2016, the PCRA court entered an order
denying Appellant relief. This timely appeal resulted.2
On appeal, Appellant presents the following issues for our review:
1. Whether the [PCRA] court erred in finding that
Appellant’s trial counsel was not ineffective for failing to
adequately explain the plea [agreement], and for failing
to provide all of the evidence to [] Appellant prior to the
plea of guilty.
____________________________________________
1
18 Pa.C.S.A. §§ 2501/901 and 2702, respectively.
2
On June 22, 2016, Appellant filed a notice of appeal. On July 14, 2016,
the PCRA court entered an order directing Appellant to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Appellant complied timely. On October 26, 2016, the PCRA court issued an
opinion pursuant to Pa.R.A.P. 1925(a).
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2. Whether the [PCRA] court erred in finding that the guilty
plea was not unlawfully induced, where the
circumstances make it likely that [] Appellant pled guilty,
and [] Appellant is innocent.
Appellant’s Brief at 8.
Appellant’s issues are interrelated, so we will examine them together.
Appellant first claims that trial counsel was ineffective for failing to provide
her with “records of the blood alcohol content tests done on the victim, and
the medical records regarding the injuries to the victim.” Id. at 14. She
claims “those medical records contradicted the victim’s [version of events] to
a sufficient degree that she would have proceeded to trial if she had the
records prior to the plea.” Id. Appellant also contends that it was “her
understanding that she was accepting a plea for three to six years [of
incarceration,]” but that “[a]fter filling out the [written plea] colloquy, the
offer was changed to three to eight years of incarceration.” Id. at 15.
Appellant maintains that because of these actions by trial counsel, her plea
was involuntary, unknowing, and unintelligent. Id. at 15-16. She argues
“she wished to maintain her innocence and proceed to trial.” Id. at 17.
We review the denial of a PCRA petition to determine whether the
record supports the PCRA court's findings and whether its order is otherwise
free of legal error. Commonwealth v. Jarosz, 152 A.3d 344, 350 (Pa.
Super. 2016) (citation omitted). “The 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 trial level.” Id. Moreover,
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“[w]e are bound by the PCRA court's credibility determinations.”
Commonwealth v. Watley, 153 A.3d 1034, 1047 (Pa. Super. 2016)
(citation omitted).
In analyzing claims of ineffective assistance of counsel,
we presume that trial counsel was effective unless the PCRA
petitioner proves otherwise. In order to succeed on a claim
of ineffective assistance of counsel, Appellant must
demonstrate (1) that the underlying claim is of arguable
merit; (2) that counsel's performance lacked a reasonable
basis; and (3) that the ineffectiveness of counsel caused the
appellant prejudice. Where the underlying claim lacks
arguable merit, counsel cannot be deemed ineffective for
failing to raise it. Appellant bears the burden of proving
each of these elements, and [her] failure to satisfy any
prong of the ineffectiveness test requires rejection of the
claim of ineffectiveness.
Commonwealth v. Jarosz, 152 A.3d at 350 (internal quotations, citations,
and original brackets omitted). “In the context of a plea, a claim of
ineffectiveness may provide relief only if the alleged ineffectiveness caused
an involuntary or unknowing plea.” Commonwealth v. Orlando, 2017 WL
772767, at *5 (Pa. Super. 2017) (citation omitted).
Here, the PCRA court determined:
[Appellant] has failed to establish that her plea of guilty was
unlawfully induced by the ineffective assistance of counsel.
At [Appellant’s] evidentiary hearing, [trial counsel],
Attorney Josh Roberts testified that he was reassigned to
cover [Appellant’s] case, and that he met with [Appellant]
and spoke to her several times prior to her plea. During
these meetings, Attorney Roberts testified that [Appellant]
had a discovery packet from her prior attorney, and never
asked for additional discovery materials. Attorney Roberts
further testified that when [Appellant] was offered a
negotiated plea agreement of 3 ½ years to 7 years[’]
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incarceration for aggravated assault, in exchange for the
Commonwealth withdrawing the attempted homicide
charge, [Appellant] requested a lower minimum sentence.
Attorney Roberts was able to negotiate the same deal, for a
sentence of 3 – 8 years [of imprisonment], which
[Appellant] accepted. [Appellant] completed a written and
oral colloquy, during which time she indicated to the [t]rial
[c]ourt under oath that she was satisfied with her counsel’s
representation, she had adequate time to discuss the case
with him, that she understood the plea agreement, and that
she was pleading guilty because she was in fact guilty.
The [t]rial [c]ourt [found] the testimony of Attorney Roberts
credible, and [found] that [Appellant] did not request any
additional discovery, she had already received discovery
from her prior counsel, and Attorney Roberts did not
threaten or unlawfully induce [Appellant] to plead guilty.
Additionally, [Appellant] failed to establish that her guilty
plea was the result of manifest injustice. Rather, the record
demonstrates that [Appellant] completed a written and oral
colloquy, wherein she stated that she had not been
threatened or promised anything to force her to plead
guilty, and that she was pleading guilty because she was in
fact guilty. The record fully supports the entry of a
knowing, intelligent, and voluntary plea. [Appellant’s] claim
in this regard is without merit.
PCRA Court Opinion, 10/26/2016, at 7.
Upon review, we discern no abuse of discretion in denying Appellant’s
PCRA petition. The trial court found trial counsel’s testimony credible and
we will not usurp the trial court’s determination. Attorney Roberts testified
that “there were [] medical records that the Commonwealth had obtained
documenting the victim's injuries of the incident that night.” N.T.,
4/11/2016, at 7. When the case was reassigned to Attorney Roberts, he
was uncertain if he provided the medical records to Appellant, because she
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ostensibly received them from her prior attorney during discovery.
However, he testified that:
I'm not sure if I gave her a copy of them, but I certainly
went over them at the County Jail with her. [Appellant] was
-- I had notes relating to the tox[icology] screen.
[Appellant] had attempted -- or was trying to paint some
picture that the victim in this case owed money to drug
dealers for prescription pain killers, that he had some sort
of opiate or Benzodiazepine problem. His tox[icology]
screens came back negative for anything but alcohol.
I do have notes from my jail visits with her in the file. I
went over the fact that the tox[icology] screen was negative
for anything other than alcohol, which there was no dispute
that they were both drinking on the night of the incident.
So I definitely went over the medical records with her.
Whether or not I provided copies to her prior to trial I'm not
sure. I do believe I provided her a copy later.
* * *
[…I]n grand total I probably spent five, six hours with her at
the County Jail prior to the non-jury trial date that was
scheduled prior to my handling of the case by [Appellant].
Several hours.
Id. at 8-9.
Appellant does not argue she was unaware of the content of the
victim’s medical records or that there were additional medical records that
she did not receive. She also does not explain what information in the
medical records would have altered her decision to plead guilty. Upon
review, trial counsel testified that he went over the victim’s medical records
with Appellant, and that toxicology reports showed no use of controlled
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substances. As such, Appellant has not pled and proven that the “medical
records contradicted the victim’s [version of events] to a sufficient degree
that she would have proceeded to trial if she had the records prior to the
plea” as she now claims.
Regarding the negotiated sentence, the following exchange occurred
before the trial court accepted Appellant’s guilty plea:
THE COURT: [Appellant], [case number] 201308308,
present in court with [Attorney] Roberts. [Attorney William]
Petulla is here on behalf of the Commonwealth. Is there an
agreement between the parties as to the charges or
sentencing, [Attorney] Petulla?
PETULLA: There is. The Commonwealth moves to withdraw
count one, criminal attempt. There is a plea to count two,
aggravated assault, serious bodily injury. There is an
agreement to three to eight years, probation to follow
set by this Honorable Court to run consecutive to that
sentence. I should note that the defendant is not RRRI
eligible. This agreement was reached after extensive
consultation with the family who did not wish to remain for
the plea.
THE COURT: Is that your understanding, [Attorney]
Roberts?
ROBERTS: Yes, that is our understanding of the agreement.
THE COURT: Is that your understanding, [Appellant]?
[Appellant]: Yes.
THE COURT: Are you clear-headed today?
[Appellant]: Yes.
THE COURT: Have you had enough time to speak to your
attorney about the amendments of the crime and
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aggravated assault and the maximum penalty that could
have been imposed and the right to have a trial?
[Appellant]: Yes, Your Honor.
THE COURT: Are you satisfied with his representation?
[Appellant]: Yes, Your Honor.
THE COURT: Other than what he has negotiated on your
behalf, what you have just heard stated in open court, has
anybody threatened or promised you anything to plead
guilty?
[Appellant]: No.
THE COURT: I have in front of me a guilty plea colloquy that
bears your signature as well as that of your attorney. Did
you read and understand these questions?
[Appellant]: Yes.
THE COURT: Did you answer these questions honestly?
[Appellant]: Yes, sir.
THE COURT: Was your attorney available in the event that
you had any questions about this document or any matter
related to this case?
[Appellant]: Yes, Your Honor.
THE COURT: [Attorney] Roberts, based on your experience
and contact with [Appellant] do you believe that she
understands the elements of the crimes and the maximum
penalty allowed by law and she is otherwise making a
knowingly, intelligently, and voluntarily fully informed
decision to plead guilty?
ROBERTS: I do, Your Honor.
N.T., 2/18/2014, at 2-4 (emphasis added).
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Based on the testimony above, we summarily reject Appellant’s
suggestion that she was deceived into accepting a sentence that was
increased unilaterally without her consent at the plea hearing. As the plea
hearing transcription reveals, Appellant was clearly apprised of the
negotiated sentence per the plea agreement with the Commonwealth prior
to entering her guilty plea. She agreed to the term of three to eight years of
imprisonment and is bound by her affirmation made under oath at the guilty
plea hearing. See Commonwealth v. Willis, 68 A.3d 997, 1009 (Pa.
Super. 2013) (“Appellant is bound by these statements, which [s]he made in
open court while under oath, and [s]he may not now assert grounds for
withdrawing the plea which contradict the statements.”). If the negotiated
agreement was not as she understood it, Appellant had an opportunity to
correct it at the plea hearing. Now, however, she simply cannot assert that
she did not understand the plea agreement as a reason to withdraw her
plea.
For all of the foregoing reasons, there is no merit to Appellant’s claims
that trial counsel provided ineffective assistance in representing Appellant at
her plea hearing. Because Appellant’s claim that she did not enter a
voluntary or knowing plea hinges solely on counsel’s performance, which we
deem effective, we conclude that Appellant is not entitled to relief on her
claim that her guilty plea was unlawfully induced.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/23/2017
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Com. v. O'Donnell, M.
Combined Opinion