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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KRISTA NICOLE MADER :
:
Appellant : No. 892 WDA 2021
Appeal from the PCRA Order Entered June 24, 2021
In the Court of Common Pleas of Cambria County Criminal Division at
No(s): CP-11-CR-0000909-2016
BEFORE: LAZARUS, J., SULLIVAN, J., and PELLEGRINI, J.*
MEMORANDUM BY LAZARUS, J.: FILED: May 17, 2022
Krista Nicole Mader appeals from the order, entered in the Court of
Common Pleas of Cambria County, denying her petition filed pursuant to the
Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. After careful
review, we affirm.
Mader was charged1 with several drug-related offenses, including eleven
counts of delivery of a controlled substance (Counts 3-13),2 two counts of
corrupt organizations (Counts 15-16),3 and one count each of possession with
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* Retired Senior Judge assigned to the Superior Court.
1 The criminal complaint originally charged Mader with twelve counts of
delivery of a controlled substance.
2 35 P.S. § 780-113(a)(30).
3 18 Pa.C.S.A. § 911(b)(3).
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intent to deliver (PWID) (Count 1),4 criminal conspiracy (Count 2),5 dealing in
the proceeds of unlawful activity (Count 14),6 and criminal use of a
communication facility (Count 17).7 The charges stemmed from Mader’s
involvement in a heroin-distribution ring operated out of Johnstown and
Pittsburgh. From September 2015 through March 2016, the Pennsylvania
Office of the Attorney General collaborated with federal and local law
enforcement to investigate the drug ring. Investigators intercepted phone
calls, used confidential informants (CI), pen-register devices, and visual
surveillance, and conducted controlled drug buys, nine of which involved
Mader.
The investigation led law enforcement to believe that Mader, a college
graduate then in her twenties, was a primary distributer/seller of heroin in
Johnstown from September 2015 until January 2016. In particular, one of
Mader’s co-defendants, Curtis Harper, would direct heroin customers from
Pittsburgh to Mader’s Johnstown residence, and then Mader would deliver the
heroin to other co-defendants as well as CIs. Agent Thomas J. Moore testified
that during the four months he was actively working with the ring, Mader sold
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4 35 P.S. § 780-113(a)(30).
5 18 Pa.C.S.A. § 903.
6 Id. at § 5111(a)(1).
7 Id. at § 7512(a).
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172 bags of heroin, totaling an approximate weight of 3.2 grams. 8 N.T.
Sentencing, 11/16/17, at 17. Prior to being charged, Mader cooperated with
the Attorney General’s Office and testified before an investigating grand jury,
providing information about the drug ring and, in the process, incriminating
herself.
In the fall of 2016, Mader’s first attorney, Russell Heiple, Esquire,
informed Mader that the Commonwealth had offered her a plea of 5-10 years’
incarceration; Mader refused the offer. At a pre-trial omnibus motion hearing
where Mader was represented by Jerome Kaharick, Esquire,9 Mader
acknowledged that the Commonwealth had made her a 5-10-year-sentence
plea offer, which would expire after that day. N.T. Pre-Trial Motion Hearing,
7/7/17, at 5. Mader rejected the offer. Id. When Attorney Kaharick asked
Mader if she would agree to enter a plea if the Commonwealth offered her a
3-6-year deal, Mader stated, “I guess . . . yes.” Id. at 6. However, the
Commonwealth’s attorney stated that because Mader’s involvement in the
drug ring was “significant[],” if would not offer less than 5-10 years. Id. at
6-7.
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8Agent Moore also testified that, based on the total number of bags (120,750)
sold over the entire 6-month span that he investigated the drug ring,
approximately 2,245 grams of heroin were sold. Id.
9 Attorney Heiple was appointed to represent Mader on May 3, 2016. On
December 29, 2016, Attorney Heiple praeciped to withdraw as counsel. On
that same date, Attorney Kaharick praeciped to enter his appearance. On
January 3, 2017, Attorney Kaharick entered his appearance as Mader’s
counsel.
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The Commonwealth’s attorney then noted that the conspiracy and
eleven drug delivery charges each carried a maximum 15-year penalty, while
the illegal proceeds and corrupt organizations charges carried 20-year
maximum penalties. Id. Finally, the communication facility charge carried a
seven-year maximum sentence. Id. The Commonwealth also indicated that,
if Mader were convicted, it would most likely seek consecutive sentences. Id.
7-8. Mader acknowledged, on the record, that she understood the maximum
penalties to which she could be sentenced and, with that knowledge, still
wished to proceed to trial. Id. at 8.
Mader was tried before a jury, with co-defendants Harper and Ryan
Baumgardner, from September 18-22, 2017. The jury convicted Mader of all
charges. Mader was sentenced on November 16, 2017, to an aggregate
sentence of 18 to 40 years’ imprisonment. On November 27, 2017, Mader
filed a post-sentence motion to modify sentence, alleging her sentence was
punitive and excessive compared to other co-defendants. At a hearing on the
motion, Attorney Kaharick argued that proof of the amount of heroin that
Mader allegedly helped distribute as part of a conspiracy was speculative and
without foundation. N.T. Post-Sentence Motion Hearing, 11/11/18, at 3. On
January 12, 2018, the court granted Mader’s motion, in part, and modified her
sentence as to Count 1 (PWID) only, changing her term of imprisonment to
12-168 months, for an aggregate sentence of 14-40 years’ imprisonment and
reducing her Recidivism Risk Reduction Incentive (RRRI) minimum total to
less than 12 years. See Order, 1/12/18, at ¶¶ 1, 3; see also N.T. Post-
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Sentence Motion Hearing, 11/11/18, at 6 (trial judge noting it wished to
reduce Mader’s overall sentence by 4 years).
Mader filed a timely direct appeal; our Court affirmed Mader’s judgment
of sentence. See Commonwealth v. Mader, 248 WDA 2018 (Pa. Super.
filed Feb. 25, 2019) (judgment order finding Mader waived challenge to
discretionary aspects of sentence claim where Commonwealth objected to
Mader’s failure to include Pa.R.A.P. 2119(f) statement in brief).10
On April 5, 2019, Mader filed a petition for allowance of appeal to the
Pennsylvania Supreme Court; the Supreme Court denied the petition on
September 6, 2019. On February 7, 2020, the trial court corrected a “patent
sentencing error,” see 42 Pa.C.S.A. § 5505, and amended Mader’s sentences
on Count 1 (PWID) and Count 2 (conspiracy) to 12-168 months’ imprisonment
on each count. Order, 2/7/20, at 1-2. The sentence at Count 2 was also
ordered to run concurrently to Count 1. Id. at 2.
Mader filed a timely pro se PCRA petition.11 The trial court entered a
“Preliminary Post Conviction Order,” granting Mader’s petition to proceed in
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10 On direct appeal, Mader presented one issue for our Court’s consideration,
a discretionary aspects of sentence issue. Specifically, Mader alleged that her
sentence—including offense gravity score and resulting guideline range—was
incorrect as it was based on speculative evidence that she had delivered over
1,000 grams of heroin, when the evidence proved that she delivered less than
100 grams of heroin. See Mader, supra at *2.
11 Although the trial court docket notes that Mader filed her pro se PCRA
petition on August 12, 2020, it is unclear from the record on what date it was
actually filed as the trial court states in its June 23, 2020 “Preliminary Post
(Footnote Continued Next Page)
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forma pauperis, finding Mader to be indigent, and appointing David L. Breyer,
Esquire, to represent Mader in PCRA proceedings. Preliminary Post Conviction
Order, 6/23/20, at 1. On August 18, 2020, counsel filed an amended PCRA
petition. The court held PCRA hearings on October 23, 2020 (via video), March
9, 2021, and April 26, 2021, at which Attorney Heiple, Attorney Kaharick, the
prosecuting attorney, Deputy Attorney General Patrick Leonard, Mader’s then-
boyfriend, Ian Brooker, and Mader testified. On June 24, 2021, the court
entered an order and accompanying opinion denying Mader’s PCRA petition.
Mader filed a timely notice of appeal and court-ordered Pa.R.A.P.
1925(b) concise statement of errors complained of on appeal.12
In her brief, Mader presents the following issues for our consideration:
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Conviction Order” that “upon consideration of the Defendant’s Petition for
Post-Conviction Relief,” is it ordering and directing counsel be appointed for
Mader. Thus, we can infer that Mader timely filed her petition prior to June
23, 2020. However, because the time stamp on the petition and docket
indicates Mader’s pro se petition was filed on August 12, 2020, we will use
that date when we cite to it throughout this memorandum.
12 In her Rule 1925(b) statement, Mader raised the following three errors,
alleging trial counsel was ineffective for: (1) advising her to go to trial after
she willingly cooperated with the Commonwealth, voluntarily supplied
evidence against her interest, and offered a full confession; (2)
miscommunicating to her the application of the standard guideline ranges in
relation to the gravity of the charges pending against her when advising her
of the merit of proceeding to a trial; and (3) presenting a trial defense (that
person convicted of her charges could only be held culpable for small portion
of total weight when determining standard guideline range) that is refuted by
case law. See Pa.R.A.P. 1925(b) Statement, 8/23/21.
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(1) Was trial counsel ineffective in allowing a favorable plea
offer to expire without advising [Mader] of the benefits of
that plea and the temporary status of the offer?
(2) Was trial counsel ineffective in miscommunicating to
[Mader] her applicable sentencing guideline ranges in
relation to a plea versus a guilty verdict at trial?
Appellant’s Brief, at 6.
Our standard of review from the denial of a PCRA petition “is limited to
examining whether the PCRA court’s determination is supported by the
evidence of record and whether it is free of legal error.” Commonwealth v.
Ousley, 21 A.3d 1238, 1242 (Pa. Super. 2011) (citation omitted). “The PCRA
court’s credibility determinations, when supported by the record, are binding
on this Court; however, we apply a de novo standard of review to the PCRA
court’s legal conclusions.” Commonwealth v. Mitchell, 105 A.3d 1257,
1265 (Pa. 2014) (citation omitted).
Both of Mader’s issues on appeal allege trial counsel’s ineffectiveness.
We presume that the petitioner’s trial counsel was effective. Commonwealth
v. Freeland, 106 A.3d 768, 775 (Pa. Super. 2014). To be entitled to relief
on a claim of ineffective assistance of counsel, a petitioner must establish that:
(1) the underlying claim has arguable merit; (2) counsel lacked a reasonable
basis for his action or inaction; and (3) but for the act or omission in question,
the outcome of the proceedings would have been different (i.e., petitioner was
prejudiced). Commonwealth v. Washington, 927 A.2d 586, 594 (Pa.
2007). “A claim of ineffectiveness may be denied by a showing that the
petitioner’s evidence fails to meet any of these prongs.” Id. (citations
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omitted). See also Commonwealth v. Turetsky, 925 A.2d 876, 880 (Pa.
Super. 2007) (citations omitted) (to establish ineffectiveness under PCRA,
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.”).
With regard to Mader’s first issue on appeal, we conclude that she has
waived it for failing to include it in her Rule 1925(b) statement. See n.12,
supra; Pa.R.A.P. 1925(b)(4)(vii).
In her second issue, Mader contends that counsel was ineffective for
improperly advising her “that her standard sentencing guideline range would
be based off of 3.2 grams of heroin, rather than 1,000+ grams.” Appellant’s
Brief, at 20.13 See also Pro Se PCRA Petition, 8/12/20, at ¶ 1(A) (Question
15) (trial counsel “failed to comprehend, or emphasize the gravity of the
[c]onspiracy charge alleging 1[,]000 grams against [Mader, and, therefore,
counsel’s] lack of professional competence caused him to underestimate the
amount of controlled substance[s] involved in the charges, thus causing him
to underestimate the sentence possibilities in a substantial manner”). Mader
alleges that “[t]he vast disparity in the sentencing guidelines between [t]he
two amounts [of drugs], plus the existing case[]law regarding individual
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13 Specifically, Mader asserts that counsel told her that if she were to proceed
to trial, she could only be held accountable for the “3 grams that they actually
had buys on me for[,]” rather than the thousands of grams she had confessed
to helping to distribute as part of a criminal conspiracy.” Id. at 13.
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liability for criminal conspiracies, makes it impossible to argue that [counsel
acted] . . . reasonably.” Appellant’s Brief, at 19-20.
In her pro se petition, Mader claimed that trial counsel “understated the
possible sentenc[ing] consequences, and advised [her] against accepting what
was an obviously exceptional plea bargain.” Pro Se PCRA Petition, [8/12/20],
at ¶ 4 (Question 6). However, trial counsel testified at the PCRA hearings that
he unsuccessfully asked the Commonwealth’s attorney “[o]n numerous
occasions” if he could reduce the 5-10[-]year plea offer to 3-6 years. N.T.
PCRA Hearing, 4/26/21, at 7, 10, 30. Attorney Kaharick also testified that he
had talked to Mader “about a lesser plea deal ad nauseam.” Id. at 12 (italics
added), and that because Mader was having a baby, she was “adamant that
she was not pleading guilty . . . because [s]he could not go to jail. . . . But
she was definitely not going to plead.” Id. at 11. Additionally, the prosecuting
attorney testified that the trial judge repeatedly asked Mader if she was sure
what the plea offer was, that she knew she was rejecting it, and that the
rejection “was of her own free will.” Id. at 24, 32-33. By contrast, Mader
testified at the PCRA hearing that she was “adamant that [she] did not want
to go to trial [because she] knew that [she] had confessed, and there was no
purpose to go to trial. There was no way to defend or say that [she] didn’t do
what [she] had done.” Id., 10/23/20, at 8.
It is well-established that counsel has a duty to communicate to his
client, not only the terms of a plea bargain offer, but also the relative merits
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of the offer compared to the defendant’s chances at trial. Commonwealth
v. Napper, 385 A.2d 521, 524 (Pa. Super. 1978).
In order to prove ineffectiveness, a defendant who rejects a plea
offer must show that, but for the ineffective advice of counsel,
there is a reasonable probability that the plea offer would have
been presented to the court (i.e., that the defendant would have
accepted the plea and the prosecution would not have withdrawn
it in light of intervening circumstances), that the court would have
accepted its terms, and that the conviction or sentence, or both,
under the offer’s terms would have been less severe than under
the judgment and sentence that in fact were imposed.
Lafler v. Cooper, 566 U.S. 156, 164 (2012).
Attorney Kaharick testified that on the first day of trial he asked Mader
if she wanted to plead guilty and that it was her “last chance to do this if [she]
wish[ed] to.” N.T. PCRA Hearing, 4/26/21, at 18. Counsel also testified that
when the Commonwealth offered Mader the 5-10-year plea deal at her pre-
trial hearing, he never told her to reject the deal in an effort to force her to
go to trial. Id. at 29-30. Attorney Kaharick also testified he never told Mader
that she could be sentenced based only on the small amount of heroin
purchased during the controlled buys, and not the overall conspiracy, id. at
23, or that she could not be prosecuted for any drugs sold after January of
2016 when she was no longer involved in the ring. Id. 34.
While counsel did testify that, based upon discovery, “there was no way
to anticipate thousands [of grams of heroin, but] . . . maybe they can get to
50 or 100 [grams],” id. at 24, Mader was also aware of her sentencing
exposure from her discussions with prior counsel, Attorney Heiple, letters from
the Commonwealth, and the July 2017 pretrial hearing where the plea offer
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and her exposure were placed on the record. See Letter from Office of the
Attorney General to Attorney Heiple, 8/19/16 (noting Mader’s “sentencing
guideline range for Counts I and II (PWID and Conspiracy) alone is 60-78
months based on offense gravity score of 13 (over 1[,]000 grams of heroin
and PRS of 0”) (emphasis added); Id., 11/18/16 (noting Mader had “apparent
change of heart regarding her guilty plea,” asking Attorney Heiple to “advise
of Ms. Mader’s intentions,” and, finally, indicating “[plea] offer will be
withdrawn on December 1, 2016”) (emphasis added).
Based on the record, we cannot conclude that Mader has proven she
was prejudiced by trial counsel’s actions. Here, Mader did not claim that she
was unaware of a plea offer. Rather, it is clear that she was aware that the
Commonwealth had offered her a 5-10-year plea deal multiple times, she had
discussed the deal with prior counsel, consistently rejected the offer (rejecting
it at least one time even after she had given birth to her child) and was told,
in open court, that the offer would expire on a given day. See N.T. PCRA
Hearing, 10/23/20, at 41-43 (Mader’s boyfriend, Booker, testifying that prior
counsel had discussed plea deal with Mader multiple times). For this reason,
Mader’s claim fails. See Washington, supra.
Moreover, with regard to trial counsel’s strategy, Mader has failed to
show that Attorney Kaharick’s strategic plan was unreasonable. Counsel
testified that he tried to negotiate for a better plea offer, never promised
Mader that he could obtain a better offer, and, in fact, got Mader to admit, in
the presence of the prosecuting attorney, that she would accept a 3-6-year
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plea deal. Finally, Mader was informed, in open court, of the potential
sentence exposures were she held accountable for the entire amount of drugs
distributed as a result of the conspiracy.
Under the circumstances, the trial court properly denied Mader’s PCRA
petition where the court’s determination is supported by record evidence and
is free of legal error. Ousley, supra. Counsel cannot be deemed ineffective
where he acknowledged he could not force Mader to accept a plea that she
was adamant about rejecting, Mader was aware of her plea/trial options, and
where Mader was fully informed of the possible penalties if she were to
proceed to trial. Washington, supra.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/17/2022
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