J-S34029-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
HEATHER LYNN HESS
Appellant No. 3199 EDA 2016
Appeal from the PCRA Order Dated September 19, 2016
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0000551-2012
BEFORE: BOWES, J., SOLANO, J., and PLATT, J.*
MEMORANDUM BY SOLANO, J.: FILED AUGUST 16, 2017
Appellant, Heather Lynn Hess, appeals from the order denying her
petition filed under the Post–Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§
9541–9546. We affirm.
On January 11, 2013, a jury convicted Appellant of third-degree
murder, aggravated assault, involuntary manslaughter, and endangering the
welfare of a child. On March 19, 2013, the trial court sentenced Appellant to
10 to 20 years in prison. Appellant filed a direct appeal, and on March 4,
2014, this Court affirmed her judgment of sentence. Commonwealth v.
Hess, 100 A.3d 294 (Pa. Super. 2004) (unpublished memorandum).
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*
Retired Senior Judge assigned to the Superior Court.
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Appellant did not petition the Pennsylvania Supreme Court for allowance of
appeal.
On June 27, 2014, Appellant filed the underlying PCRA petition pro se.1
The PCRA court appointed counsel on September 18, 2014. Counsel filed an
amended petition on March 22, 2016. On May 13, 2016, the Commonwealth
filed an answer.2 The PCRA court convened a hearing on August 17, 2016.
On September 19, 2016, it entered an order denying Appellant’s petition.
Appellant filed this timely appeal, in which she presents one issue:
Whether the PCRA Court erred in denying Appellant’s PCRA
petition where the record clearly showed that counsel was
ineffective for failing to communicate [plea] offers of 9 to 23
months and 8 to 10 years to Appellant, where Appellant would
have agreed to the offers if they had been communicated, and
Appellant was prejudiced by counsel’s ineffectiveness?
Appellant’s Brief at 4.
Appellant seeks post-conviction relief on the basis that trial counsel
was ineffective for failing to properly communicate plea offers from the
Commonwealth. Appellant claims “there were offers . . . which trial counsel
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1
Appellant’s petition was timely because it was filed within one year after
her sentence became final. See 42 Pa.C.S. § 9545(b)(1). Appellant’s
sentence became final on April 3, 2014, when the time for filing a petition
for allowance of appeal to the Pennsylvania Supreme Court expired. See
Pa.R.A.P. 1113(a) (“a petition for allowance of appeal shall be filed with the
Prothonotary of the Supreme Court within 30 days after the entry of the
order of the Superior Court”). Therefore, Appellant had until April 3, 2015 to
file a timely PCRA petition.
2
Although the docket entries show the Commonwealth filed an “Answer in
Opposition to Amended Post-Conviction Relief Act Petition” on May 13, 2016,
it is absent from the certified record.
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either failed to relay to Appellant or failed to properly advise Appellant[.]”
Appellant’s Brief at 7. Appellant contends, “[i]f she had been properly
advised regarding these plea offers, she would have accepted these offers,
which offers were less severe than the sentence she received.” Id.
Preliminarily, we note our standard of review:
We review an order dismissing a petition under the PCRA in the
light most favorable to the prevailing party at the PCRA level.
This review is limited to the findings of the PCRA court and the
evidence of record. We will not disturb a PCRA court’s ruling if it
is supported by evidence of record and is free of legal error.
This Court may affirm a PCRA court’s decision on any grounds if
the record supports it. We grant great deference to the factual
findings of the PCRA court and will not disturb those findings
unless they have no support in the record. However, we afford
no such deference to its legal conclusions. Further, where the
petitioner raises questions of law, our standard of review is de
novo and our scope of review is plenary.
Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (citations
omitted).
The law presumes trial counsel has rendered effective assistance.
Commonwealth v. Rivera, 10 A.3d 1276, 1279 (Pa. Super. 2010). The
burden of demonstrating ineffectiveness rests on the petitioner. Id. To
satisfy this burden, the petitioner must plead and prove by a preponderance
of the evidence that: “(1) his underlying claim is of arguable merit; (2) the
particular course of conduct pursued by counsel did not have some
reasonable basis designed to effectuate his interests; and (3) but for
counsel’s ineffectiveness, there is a reasonable probability that the outcome
of the challenged proceedings would have been different.” Commonwealth
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v. Fulton, 830 A.2d 567, 572 (Pa. 2003). Failure to satisfy any prong of
this test will result in rejection of the petitioner’s ineffective assistance of
counsel claim. Commonwealth v. Jones, 811 A.2d 994, 1002 (Pa. 2002).
At the PCRA hearing, Appellant testified that her trial counsel, Keith
Garrity, Esquire, did not communicate any plea offers to her. N.T., 8/17/16,
at 8-10. Appellant eventually conceded that Mr. Garrity communicated an
offer of 10 to 20 years in prison, which she rejected, but she maintained that
had he communicated an offer less than 10 to 20 years, she would have
“considered” it. Id. at 10. Appellant emphasized that at her sentencing
hearing on March 19, 2013, Judge Coll3 “indicated that his notes revealed a
plea offer of 9 to 23 months.” Id. at 10-11. Appellant had not heard of that
offer prior to sentencing. Id. at 11, 14. She averred that she would have
accepted that plea. Id. at 11.
On cross-examination, the Commonwealth showed Appellant a letter
from Mr. Garrity to Appellant in which Mr. Garrity advised Appellant of a plea
4
offer of 10 to 20 years. N.T., 8/17/16, at 12-13. Appellant agreed that
she signed page 8 of the letter, acknowledging its content, on December 28,
2012. Id. at 12. Appellant also testified that Mr. Garrity told her of a plea
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3
Judge Michael F. X. Coll, who presided at Appellant’s trial and sentencing in
2013, retired at the end of 2013 and assumed senior status. Judge
Richard M. Cappelli has presided over Appellant’s PCRA proceedings.
4
The letter also stated, “It is my opinion that more likely than not you will
be found guilty of Aggravated Assault and either Third Degree Murder or
Voluntary Manslaughter.” Id. at 13.
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offer of 8 to 10 years, to which she responded that “I’m not pleading guilty
to nothing.” N.T., 8/17/16, at 15. Appellant said the 8 to 10 year plea was
not put in writing, and that she never received from Mr. Garrity a plea offer
of 9 to 23 months. Id.
Deputy District Attorney Mike Galantino testified to “handling the
litigation portion” and trying Appellant’s case. Id. at 17. The
Commonwealth questioned Mr. Galantino as follows:
Q: In cases such as this, the Hess case, who’s authority is it
to make offers on behalf of the Commonwealth?
A: In any serious case, especially a case involving a child
homicide, all offers would have to go through me and I
would also review an offer in a case such as this with the
District Attorney.
. . .
Q: Do you recall making offers in this case? In the case of
Commonwealth v. Hess?
A: Not at the beginning. In fact, specifically there was no
request for an offer. There was no offer make at any time
through the beginning of the case. It wasn’t until I took
over the case and I had lengthy discussions with Defense
Counsel, Mr. Garrity, that we began to talk about an offer
of somewhere in the range of 10 to 20 years in State
Prison for Third Degree Murder.
Q: And did you communicate that offer to Mr. Garrity?
A: I did.
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Q: Would you have approved an offer to a County Sentence[ 5]
in this case?
A: Absolutely not. Given that this was a serious case of a
child homicide, given that I felt the evidence was fairly
compelling, there is no way that our office would have ever
approved a County Sentence on a case of this magnitude.
Q: Did you make an offer of 9 to 23 months in this case?
A: No, that was never made, that was never discussed, or
even requested for that matter.
N.T., 8/17/16, at 17-19.
On cross-examination, Mr. Galantino testified that he did not handle
Appellant’s case initially, and that although he supervised the case, he
assigned it to another assistant district attorney, Mr. Lesniak, who “was the
one that corresponded with Defense Counsel and went to Court.” Id. at 19.
He stated, “Mr. Lesniak didn’t have the authority to make a plea offer
without going through me.” Id. at 20. With regard to the offer of 10 to 20
years, Mr. Galantino testified:
There was a second attempt either just before the trial began or
during the trial. . . . In this case, what was unique was the
description of how this child had died and it was very important
for this family to try to understand what happened to their son,
their grandson, their nephew and I had a conversation with Mr.
Garrity either just before jury selection or after the jury had
been picked that if [Appellant] would come clean and tell what
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5
A “County Sentence” is generally recognized as being less than two years.
See 42 Pa.C.S. § 9762 (generally providing for county incarceration where
sentence is under two years, but permitting county incarceration in some
cases where term is less than five years); Allegheny County v.
Commonwealth, 544 A.2d 1305, 1308 (Pa. 1988) (persons sentenced to
less than two years’ incarceration are properly in county’s custody).
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happened to the child, since she was the only person involved
with his care on the day that he died, that I would go back to the
family and go back to the District Attorney and consider the
possibility of a sentence as low as eight years but the formal
offer was 10 to 20. There was a discussion of possibly going to
eight provided [Appellant] gave us certain information the family
was seeking.
Id. at 20-21.
Mr. Galantino testified that Appellant rejected the offer of 10 to 20
years. N.T., 8/17/16, at 22. With regard to Judge Coll’s statement at
sentencing regarding a lesser plea offer, Mr. Galantino stated:
It’s not that I have no recollection of it, I can say
unequivocally I never made an offer of a County sentence and I
would never have made an offer of a County sentence on a case
of this magnitude. . . . I don’t know how it got into Judge
Coll’s notes. I can say unequivocally that our office never made
that type of an offer.
Id. at 23.
Mr. Garrity testified that he represented Appellant at trial, and
confirmed that he communicated the plea offer of 10 to 20 years to
Appellant in written correspondence. Id. at 25. He also testified that he
verbally discussed with Appellant “if she were to tell the family what actually
happened to the child that [the District Attorney] may consider an eight year
sentence. I relayed that to [Appellant] and at that point, she said I told you
what happened and that was the end of the discussion. This was with
respect to pleading guilty.” Id. at 25-26. Mr. Garrity stated that the
Commonwealth never made an offer of 9 to 23 months, and if it had, he
would have communicated the offer to Appellant “and waited by the front
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steps for the Courthouse to open” so that Appellant could accept that plea as
quickly as possible. Id. at 27-28. Mr. Garrity reiterated that the plea offer
of 10 to 20 years was the only offer made by the Commonwealth, “with the
caveat that if she were to tell as the Commonwealth phrased it, what
actually happened to the child, then they would consider eight and she told
me, I told you already.” Id. at 27.
The notes of testimony from the March 19, 2013 sentencing hearing
were incorporated into the PCRA hearing. N.T., 8/17/16, at 34. The notes
read:
The Court: Incredibly I’m looking at the notes, you
mentioned a plea bargain. A plea bargain as of March 23 rd,
2012, was that she would plead to Aggravated Assault as a
felony of the second degree and get sent to prison for nine to 23
months, plus two years of probation.
Mr. Garrity: We never received that offer.
The Court: Pardon?
Mr. Garrity: We never received that offer.
The Court: I wrote it down here on the day it happened.
Mr. Garrity: Not for this case Judge.
The Court: It was conveyed in Court. I didn’t write that
down because someone told me in secret. I wrote that down
because it was conveyed in this very courtroom.
Mr. Garrity: Judge, with all due respect . . .
The Court: Well . . .
Mr. Garrity: . . . that offer was never conveyed in my
presence.
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The Court: Well here it is and I wrote – that’s my practice.
Mr. Garrity: [Mr. Galantino] did you . . .
Mr. Galantino: I wasn’t present that day. It was another
attorney from our office.
The Court: All right maybe – the point is, the point is that
perhaps it was some kind of quid pro quo for the truth, . . . But
regardless of whether that was any kind of viable offer, the
situation now is she stands before the Court . . .
N.T., 3/19/13, at 63-65.
After considering the above testimony, the PCRA court denied
Appellant’s petition for post-conviction relief. The PCRA court made this
factual finding:
In light of the hearing testimony and the deportment and
statements of the various individuals who testified, it is hereby
specifically held that there was never any pre-trial offer such as
the “9 to 23 months.” The unsubstantiated and uncorroborated
inadvertent statements of the sentencing judge regarding a pre-
trial plea offer of “9 to 23 months” that bears no relation to the
range of realistic pre-trial plea offers that would be considered
by the Deputy District Attorney is of no legal or evident force,
merit or effect.
PCRA Court Opinion, 1/19/17, at 6-7. The PCRA court concluded that there
was no arguable merit to Appellant’s claim because “counsel cannot be said
to have been ineffective in failing to convey a [9 to 23 month] plea offer that
never existed.” Id. at 8-9.
We agree with the trial court’s conclusion. In addition, we find that
Appellant’s assertion that trial counsel failed to provide “proper advice
regarding the 8 to 10 [year] offer” is without merit. Appellant claims that
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she “would have accepted [that offer] because it . . . was less than what she
was facing, which was the 10 to 20 year sentence.” Appellant’s Brief at 9.
However, at the PCRA hearing, when Appellant testified that her counsel
communicated a plea of 8 to 10 years, she also testified that she responded,
“I’m not pleading guilty to nothing.” N.T., 8/17/16, at 15. The questioning
of Appellant by PCRA counsel reads verbatim:
Q: Aside from that written document that [the
Commonwealth] showed you from [trial counsel’s] office
[documenting a plea offer of 10 to 20 years], did you
receive any other plea offer prior to going to trial in this
case?
A: The plea offer, he came to me, he said 8 to 10 years.
Q: He did say, he said that?
A: And I said, I’m not pleading guilty to nothing.
Q: Did he put that in writing to you?
A: No.
Id. Conversely, Mr. Garrity testified that there was no plea offer of 8 to 10
years. He stated that the plea offer of 10 to 20 years was the only offer
made by the Commonwealth, but “with the caveat that if she were to tell as
the Commonwealth phrased it, what actually happened to the child, then
they would consider eight and she told me, I told you already.” Id. at 27.
Appellant has failed to establish any arguable merit to her claim that
trial counsel failed to properly advise her regarding advice of “the other offer
of 8 to 10 years.” Appellant’s Brief at 10. The record indicates that there
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was no plea offer of “8 to 10 years,” and, to the extent Appellant may have
had an opportunity to plead to 10 to 20 years, with the 10 years possibly
being reduced to 8, she rejected such an offer.
In sum, Appellant has failed to prove trial counsel’s ineffectiveness
because her claims regarding plea offers of 9 to 23 months and 8 to 10
years lack arguable merit. We thus affirm the PCRA court’s denial of
Appellant’s petition for post-conviction relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/16/2017
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Com. v. Hess, H.
Combined Opinion