Rosembert v. Mahally et al
Filing
22
MEMORANDUM (Order to follow as separate docket entry) (eo)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
ALBERTO MELLON
ROSEMBERT,
Petitioner,
:
:
:
:
v.
:
:
SUPERINTENDENT LAWRENCE :
MAHALLY, PENNSYLVANIA
:
STATE ATTORNEY GENERAL,
:
Respondents.
:
1:15-cv-0715
Hon. John E. Jones III
MEMORANDUM
January 3, 2016
Petitioner Alberto Mellon Rosembert (“Rosembert”), a Pennsylvania state
inmate, commenced this action on April 13, 2015, with the filing of a pro se
petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. 1).
Rosembert challenges the Judgment of Sentence entered on April 23, 2012, in
Court of Common Pleas of Luzerne County Criminal case number CP-40-CR000198-2011. (Id.)
In response to the petition, Respondents filed an answer, memorandum of
law and appendices. (Doc. 18). At the direction of the Court, Respondents
expanded the record on December 1, 2016, and the petition is now ripe for
disposition. For the reasons that set forth below, the petition will be denied.
1
I.
STATE PROCEDURAL HISTORY
The following procedural history, which was adopted by the Pennsylvania
Superior Court during appellate review, was set forth in the Court of Common
Pleas of Luzerne County’s opinion addressing Rosembert’s petition for collateral
review.
The Defendant, Alberto Mellon Rosembert, was arrested on October
14, 2010 for the following charges: Corrupt Organizations, 18
Pa.C.S.A. 911(b)(3); Corrupt Organizations; 18 Pa.C.S.A. 911 (b)(14); Manufacture, Delivery and Possession with Intent to Deliver a
Controlled Substance, 35 Pa.C.S.A. 780-113(a)(3), 7 counts; Criminal
Use of a Communication Facility; 18 Pa. C. S. A. 7512(a).
On January 3, 2012, Attorney David Lampoon was appointed to
represent the Defendant.
Thereafter, on April 23, 2012, the
Defendant, Alberto Mellon Rosembert, plead guilty to the following
offenses before the Honorable Senior Judge Kenneth Brown; Corrupt
Organizations (Count 1); Delivery of a Controlled Substance (Count
4) (Heroin); Delivery of a Controlled Substance, (Count 6) (Heroin).
The Defendant, Alberto Mellon Rosembert, waived his right to a
presentence investigation and agreed on the record to proceed to
immediate sentencing.
Subsequent thereto, the Honorable Senior Judge Kenneth Brown,
sentenced the Defendant as follows:
Delivery of a Controlled Substance, Count 6: 3-6 years state
confinement;
Delivery of a Controlled Substance, Count 4: 2-4 years state
confinement, consecutive to Count 6;
Corrupt Organizations, Count 1: 21 months to 4 years state
confinement, consecutive to Count 6 and Count 4.
2
The Defendant filed the instant Post-Conviction Collateral Relief
Petition (hereinafter Petition) claiming ineffective assistance of
counsel seeking to be allowed to withdraw his guilty plea or to have
his appellate rights reinstated.
ISSUES PRESENTED
Whether Counsel was ineffective:
(1) In preparation for trial?
(2) In failing to challenge the prior record score used or the weight of
the heroin?
(3) In failing to file an appeal to the Superior Court on Defendant’s
behalf?
(Doc. 18-2, pp. 1-2). The PCRA Court held a hearing on August 28, 2013., and
issued an opinion on October 2, 2013, denying relief. (Id. at 4, 9; Doc. 18-3, p.2).
Rosembert pursued a timely appeal to the Pennsylvania Superior Court presenting
the same issues raised in his PCRA petition. (Doc. 18-3, p. 4). On January 26,
2015, the Superior Court affirmed the PCRA Court’s denial of the petition. (Id. at
6). Rosembert filed the instant petition pursuant to 28 U.S.C. 2254 on April 13,
2015.
II.
GROUNDS RAISED IN FEDERAL PETITION
Rosembert pursues the following grounds in his federal petition raised in his
PCRA proceedings.
3
(1)
“Whether trial counsel was ineffective in preparation for trial?
(2) “Whether trial counsel was ineffective in failing to challenge
the prior record score use to convict due to the weight of the heroin?”
(3) “Whether trial counsel was ineffective in failing to file a
[direct] appeal to the Superior Court?”
(4) Whether trial counsel was ineffective for failing to raise
mulitple “unlitigated issues” on appeal and during collateral
proceedings?
(Doc. 1, pp. 6-9).
III.
DISCUSSION
A.
Exhaustion and Procedural Default
The court shall “entertain an application for a writ of habeas corpus in behalf
of a person in custody pursuant to the judgment of a State court only on the ground
that he is in custody in violation of the Constitution or laws or treaties of the
United States.” 28 U.S.C. § 2254(a). However, such an application “shall not be
granted unless it appears that . . . the applicant has exhausted the remedies
available in the courts of the State.” 28 U.S.C. § 2254(b)(1)(A); see also
O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999) (stating “[b]ecause the
exhaustion doctrine is designed to give the state courts a full and fair opportunity
to resolve federal constitutional claims before those claims are presented to the
federal courts, . . . state prisoners must give the state courts one full opportunity to
4
resolve any constitutional issues by invoking one complete round of the State’s
established review process). The state courts must have the first opportunity to
redress any claimed violation of a habeas petitioner’s federal rights. Picard v.
Connor, 404 U.S. 270, 275–76 (1971). The habeas statute codifies this principle
by requiring that a petitioner exhaust the remedies available in the courts of the
State, 28 U.S.C. § 2254(b)(1)(A), meaning a state prisoner must “fairly present”
his claims in “one complete round of the state’s established appellate review
process,” before bringing them in federal court. O’Sullivan v. Boerckel, 526 U.S.
838, 845 (1999) (stating “[b]ecause the exhaustion doctrine is designed to give the
state courts a full and fair opportunity to resolve federal constitutional claims
before those claims are presented to the federal courts, . . . state prisoners must
give the state courts one full opportunity to resolve any constitutional issues by
invoking one complete round of the State’s established review process); see also
Duncan v. Henry, 513 U.S. 364, 365 (1995); Picard, 404 U.S. at 275 (1971);
Lambert v. Blackwell, 134 F.3d 506, 513 (3d Cir. 1997).
Relief cannot be granted unless all available state remedies have been
exhausted, or there is an absence of available state corrective process, or
circumstances exist that render such process ineffective to protect the rights of the
applicant. See 28 U.S.C. § 2254(b)(1). The exhaustion requirement is grounded
5
on principles of comity in order to ensure that state courts have the initial
opportunity to review federal constitutional challenges to state convictions. See
Werts v. Vaughn, 228 F.3d 178, 192 (3d Cir. 2000).
“Fairly presenting” a federal claim to the state courts requires the petitioner
to present both the factual and legal substance of the claim in such a manner that
the state court is on notice that the federal claim is being asserted. See McCandless
v. Vaughn, 172 F.3d 255, 261 (3d Cir. 1999). Citations to the Constitution or to
federal case law can provide adequate notice of the federal character of the claim.
Evans v. Court of Common Pleas, 959 F.2d 1227, 1232 (3d Cir. 1992). A
petitioner may also alert the state courts through “reliance on state cases employing
[federal] constitutional analysis in like fact situations,” or “assertion of the claim in
terms so particular as to call to mind a specific right protected by the Constitution.”
Id. Thus, a federal claim may be fairly presented to the state courts even when the
petitioner makes no express reference to federal law. McCandless, 172 F.3d at
261.
The federal claims raised in the state courts need not be identical to the
claims pursued in federal court. See Picard, 404 U.S. at 277 (recognizing that
petitioner is entitled to “variations in the legal theory or factual allegations used to
support a claim”). But, the exhaustion requirement would “serve no purpose if it
6
could be satisfied by raising one claim in the state courts and another in the federal
courts.” Id. at 276. A petitioner has exhausted a federal claim only if he or she
presented the “substantial equivalent” of the current claim to the state court. Id. at
278; see also McCandless, 172 F.3d at 261 (holding that petitioner must present
both “factual and legal substance” of claim to state courts).
Rosembert concedes that the “unlitigated” “claims outlined in GROUND 4
of this Petition have not been fully exhausted due to Appellate Counsel’s
ineffectiveness on the previous appeal.” (Doc. 1, pp. 9-11). Review of the record
confirms this concession with regard to the claims of trial court loss of jurisdiction
and abuse of discretion, and trial counsel’s ineffectiveness in failing to challenge
jurisdiction, file a direct appeal, and raise double jeopardy issues. If a petitioner
presents unexhausted habeas claims to a federal court, but state procedural rules
bar further state court review, the federal court will excuse the failure to exhaust
and treat the claims as exhausted. Wenger v. Frank, 266 F.3d 218, 223 (3d Cir.
2001); Lines v. Larkins, 208 F.3d 153, 160 (3d Cir. 2000); see Teague v. Lane, 489
U.S. 288, 297–98 (1989). Although deemed exhausted, such claims are considered
procedurally defaulted. Coleman v. Thompson, 501 U.S. 722, 749 (1991); Lines,
208 F.3d at 160. “[F]ederal courts may not consider the merits of such claims
unless the applicant establishes ‘cause and prejudice’ or a ‘fundamental
7
miscarriage of justice’ to excuse his or her default. See Coleman v. Thompson, 501
U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991).” McCandless v. Vaughn,
172 F.3d 255, 260 (3d Cir. 1999); see also Trevino v. Thaler, 133 S. Ct. 1911,
1917 (2013).
To demonstrate “cause,” the petitioner must demonstrate that some objective
external factor impeded his efforts to comply with the state’s procedural rule.
Murray v. Carrier, 477 U.S. 478, 488 (1986). To demonstrate “actual prejudice,”
the petitioner must show that the errors worked to his actual and substantial
disadvantage “infecting his entire [proceeding] with error of constitutional
dimensions.” United States v. Frady, 456 U.S. 152, 170 (1982). The miscarriage
of justice exception applies only in extraordinary cases where a “constitutional
violation has probably resulted in the conviction of one who is actually innocent.”
Murray, 477 U.S. at 496. “‘[A]ctual innocence’ means factual innocence, not mere
legal insufficiency.” Bousley v. United States, 523 U.S. 614, 623 (1998). This
requires a petitioner to “support his allegations of constitutional error with new
reliable evidence – whether it be exculpatory scientific evidence, trustworthy
eyewitness accounts, or critical physical evidence – that was not presented at trial.”
Schlup v. Delo, 513 U.S. 298, 324 (1995).
8
Rosembert fails to establish cause in that he fails to identify an objective
external factor that impeded his efforts to comply with procedural rules in
presenting these claims to the state courts. In the absence of cause, the court will
not address the issue of prejudice. In turn, the miscarriage of justice exception is
inapplicable because Rosembert has failed to provide new reliable evidence of his
actual innocence.
The claims contained in Grounds One, Two and Three are fully exhausted
and will be addressed on the merits.
B.
Claims Adjudicated on the Merits
Under the Antiterrorism and Effective Death Penalty Act (“AEDPA”),
federal courts reviewing a state prisoner’s application for a writ of habeas corpus
may not grant relief “with respect to any claim that was adjudicated on the merits
in State court proceedings” unless the claim (1) “resulted in a decision that was
contrary to, or involved an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United States” or (2) “resulted in a
decision that was based on an unreasonable determination of the facts in light of
the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d).
“[B]ecause the purpose of AEDPA is to ensure that federal habeas relief
functions as a guard against extreme malfunctions in the state criminal justice
9
systems, and not as a means of error correction,” Greene v. Fisher, — U.S. — ,
132 S.Ct. 38, 43 (2011) (internal quotations and citations omitted), “[t]his is a
difficult to meet and highly deferential standard . . . which demands that state-court
decisions be given the benefit of the doubt.” Cullen v. Pinholster, 563 U.S. 170,
181 (2011) (internal quotation marks and citation omitted). The burden is on
Rosembert to prove entitlement to the writ. Id.
A decision is “contrary to” federal law if “the state court applies a rule that
contradicts the governing law set forth in [Supreme Court] cases” or “if the state
court confronts a set of facts that are materially indistinguishable from a decision
of [the Supreme] Court and nevertheless arrives at a result different from [Supreme
Court] precedent.” Williams v. Taylor, 529 U.S. 362, 405-06 (2000). A decision is
an “unreasonable application” of federal law if the state court identified the correct
governing legal rule but applied the rule to the facts of the case in an objectively
unreasonable manner. Renico v. Lett, 559 U.S. 766, 773 (2010). A decision is
based on an “unreasonable determination of the facts” if the state court’s factual
findings are objectively unreasonable in light of the evidence presented to the state
court. Miller-El v. Cockrell, 537 U.S. 322, 340 (2003).
The test for ineffective assistance of counsel is a well settled and firmly
established one containing two components. “First, the defendant must show that
10
counsel’s performance was deficient. This requires showing that counsel made
errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the
defendant by the Sixth Amendment.” Strickland v. Washington, 466 U.S. 668, 687
(1984). “Second, the defendant must show that the deficient performance
prejudiced the defense. This requires showing that counsel’s errors were so serious
as to deprive the defendant of a fair trial, a trial whose result is reliable.” Id. The
state courts set forth the following law governing review of ineffective assistance
of counsel claims:
“To obtain relief on a claim of ineffective assistance of counsel,
the Petitioner must show (1) the underlying claim is of arguable merit;
(2) no reasonable basis existed for Counsel’s action or inaction; and
(3) counsel’s error caused prejudice such that there is a reasonable
probability that the proceeding would have been different absent such
error. Commonwealth vs. Dennis. 17 A.3rd 297, 301 (Pa. 2011),
citing Commonwealth vs. Pierce, 527 A.2nd 973, 975 (Pa. 1987).
In reviewing any particular claim of ineffectiveness, the Court
need not determine whether the first two prongs of this standard are
met if the record shows the Petitioner has not met the prejudice prong.
Commonwealth vs. Travaglia, 541 Pa. 108, 661 A.2nd 357 (1995) cert.
denied 516 U.S. 1121, 116 S.Ct. 931; Commonwealth v. Collins, 888
A.2nd 564 (Pa. 2005). Further, it is clear that the burden of proving
ineffectiveness of counsel rests with the Petitioner because counsel’s
stewardship of the trial is presumptively effective. Commonwealth v.
Wilson, 543 Pa. 429; 672 A.2nd 293, cert. denied 519 U.S. 915, 117 S.
Ct. 364 (1996).
To sustain a claim of ineffectiveness, the Petitioner must prove
that the strategy employed by trial counsel “was so unreasonable that
11
no competent lawyer would have chosen that course of conduct.”
Commonwealth vs. Williams, 640 A.2nd 1251, 1265 (Pa. 1994).
(Doc. 18-2, pp. 2-3).
The United States Court of Appeals for the Third Circuit has ruled that this
standard is not “contrary to” Strickland. Werts v. Vaughn, 228 F. 3d 178, 203 (3d
Cir. 2000). Therefore, “the appropriate inquiry is whether the Pennsylvania courts’
application of Strickland to [Petitioner’s] ineffectiveness claim[s] was objectively
unreasonable, i.e., the state court decision evaluated objectively and on the merits,
resulted in an outcome that cannot reasonably be justified under Strickland,” id. at
204, or, whether the adjudication of the claims resulted in a decision that was
based on an unreasonable determination of the facts in light of the evidence
presented in the State court proceedings. 28 U.S.C. §§ 2254(d)(1) and (2).
1.
Ground One: Failure to Prepare for Trial
Rosembert argues that “trial counsel made it very clear to the Defendant as
well as on record to the trial court that he was unprepared for trial which is the
equivalent of abandonment of representation. Trial counsel’s ineffectiveness gave
the defendant no choice but to plead guilty as he was told by counsel that he would
have no chance at trial due to him being unprepared. Counsel did not have
defendant [sic] file and made it clear he could not be an effective lawyer.” (Doc. 1,
p. 5).
12
In considering the issue in the context of the PCRA appeal, the Superior
Court noted that the PCRA court “thoroughly set forth the applicable law,
including the law concerning ineffective assistance claims and rejected
Rosembert’s instant challenge to trial court’s ineffectiveness,” and affirmed on the
basis that the PCRA court’s determination and rational was supported by the
record and law. (Doc. 18-3, p 5). The PCRA court relied on the following
applicable law:
A Defendant is bound by the statement made during the plea
colloquy, and defendant may not later offer reasons for withdrawing
the plea that contradict statements made when he pled.
Commonwealth v. McCauley, 797 A.2d. 920, 922 (Pa. Super. 2001).
Claims of counsel’s ineffectiveness in connection with a guilty plea
will provide a basis for relief only if the ineffectiveness actually
caused an involuntary or unknowing plea. Id.
The law does not require that a defendant be pleased with the
results of the decision to enter a guilty plea; rather “[a]ll that is
required is that [appellant’s] decision to plead guilty be knowingly,
voluntarily, and intelligently made.” Commonwealth v. Moser, 921
A.2d 526, 528-29 (Pa. Super. 2007).
***
The guilty plea colloquy in the instant matter inquired into the
following required areas:
1.
The Defendant understood the nature of the charges to
which he was pleading guilty (NT 18-19, 4/23/12);
2.
There was a factual basis for the plea (NT 19-29,
4/23/12);
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3.
The Defendant understood that he had the right to trial by
jury (NT 8-10, 4/23/12);
4.
The Defendant was informed that he was presumed
innocent until he was found guilty (NT 8, 4/23/12);
5.
The Defendant was aware of the permissible range of
sentences and/or fines for the offenses charged (NT 1012, 4/23/12);
(Doc. 18-2, pp. 3, 4, 6). Further, Rosembert was apprised of his privilege against
self-incrimination, his right to remain silent, and his right to confront the witnesses
against him. (Doc. 21-1, pp. 3-4).
The state court plea colloquy proceedings were in accord with Supreme
Court precedent which holds that the Due Process Clause of the Fourteenth
Amendment requires that a guilty plea be entered intelligently and voluntarily.
Boykin v. Alabama, 395 U.S. 238, 242–43 (1969). Before pleading guilty, a
criminal defendant should be advised of “all of his constitutional rights and
protections, including the privilege against self-incrimination guaranteed by the
Fifth Amendment, the right to trial by jury, and the right to confront one’s accuser
s.” Hill v. Beyer, 62 F.3d 474, 480 (3d Cir.1995) (citing Boykin, 395 U.S. 242–43).
A defendant must show the outcome of the plea process would have been different
with competent advice. See Lafler, 132 S.Ct. at 1384 (noting that Strickland’s
inquiry, as applied to advice with respect to plea bargains, turns on the probability
14
that, but for counsel’s errors, “the result of the proceeding would have been
different”).
Notwithstanding the above, because of the force of the original plea hearing
and the finality associated with a guilty plea, in collaterally attacking a plea of
guilty, a defendant “may not ordinarily repudiate” statements made to the
sentencing judge when the plea was entered. Blackledge v. Allison, 431 U.S. 63,
71, 73 (1977) (citing Fontaine v. United States, 411 U.S. 213, 215 (1973). “For
the representations of the defendant, his lawyer, and the prosecutor at such a
hearing, as well as any findings made by the judge accepting the plea, constitute a
formidable barrier in any subsequent collateral proceedings. Solemn declarations
in open court carry a strong presumption of verity.” Id. at 73-74.
The PCRA Court opined as follows:
In the instant matter, Defendant’s position is that, because trial
counsel was unprepared for trial and did not adequately consult him to
prepare possible defenses, he felt coerced at the time of his plea
hearing to enter a guilty plea. However, at that hearing, the Defendant
testified that it was his decision to plead guilty and that he was
satisfied with the representation provided by counsel. Consequently,
the Defendant is bound by the statements made during the plea
colloquy and cannot now offer contradictory reasons for withdrawing
his plea. A defendant may not be pleased with the results of entering
a guilty plea, but he cannot now obtain relief by claiming he felt
pressured by counsel to plead guilty. Commonwealth v. Brown, 48
A.3rd 1275 (Pa. Super. 2012).
15
However, the record is also clear, that on numerous occasions,
trial counsel met with the Defendant (NT 37) and that there were
discussions about the case, including the proposed plea offers.
Further, trial counsel testified that, in his opinion, trial was not in the
Defendant’s best interest and that Defendant informed him that he did
not want to go to trial, but rather, wanted a better plea offer (NT 41,
54). In line therewith, the Defendant forwarded a letter to trial
counsel indicating that a guilty plea was in his best interest and
requesting that the plea be accomplished as quickly as possible (NT
41). (Hereinafter all designations “NT” refer to the PCRA hearing of
August 28, 2013, and all references to “4/23/1” refer to the guilty
plea/sentencing hearing of April 23, 2012).
While trial counsel indicated he would have preferred to have
more time to prepare for trial, he testified that he could have tried the
case, that the Defendant did not want to go to trial, and further, that he
did not pressure the Defendant, nor threaten the Defendant, to take a
plea. (NT 46-47). The record reveals that trial counsel consulted with
the Defendant on numerous occasions, discussed discovery, potential
witnesses, and the damaging testimony which could be anticipated at
time of trial. (NT 38-40). Defendant intelligently and knowingly
entered the plea after thorough consultation with trial counsel.
During the PCRA hearing, the Defendant testified in response
to questions from the Commonwealth’s attorney concerning his guilty
plea as follows:
Q.
Okay. You can’t recall. But you remember entering a
plea of guilty that day, right?
A.
Yes, I do, sir. (NT 27)
Q.
As a matter of fact, do you remember during the course
of that guilty plea hearing that Judge Kenneth Brown had asked you
whether or not you had delivered heroin on certain dates, October 4th,
2010 being one of those dates?
A.
Right.
16
Q.
And do you remember telling Judge Brown, yes?
A.
Right.
Q.
And do you remember Judge Brown asking you whether
or not you delivered heroin on other dates?
A.
(No response)
Q.
And do you remember Judge Brown asking you?
A.
Right.
Q.
And do you remember telling Judge Brown, yes?
A.
Right.
Q.
Now, do you remember Judge Brown going through and
explaining to you what the elements of a corrupt organization were?
A.
Yes.
Q.
And do you remember Judge Brown telling you what the
Commonwealth is required to prove.
A.
Right.
Q.
And do you remember my colloquy saying this
Defendant had transported controlled substances from New Jersey to
Luzerne County for the purposes of distribution?
A.
Q.
Right.
And do you remember telling Judge Brown yes, I did
that?
A.
Yes.
(NT 28-29)
17
Q.
Now did you ever during this time – during this time, did
you ever tell Judge Brown during the course of this guilty plea
colloquy that you were ever dissatisfied with your lawyer?
A.
No.
(NT 30)
(Doc. 18-2, p. 5).
Based on Rosembert’s plea colloquy testimony, and the above testimony
taken at the PCRA hearing, the PCRA court determined that Rosembert knowingly
and voluntarily entered a plea. And, because “[a] defendant is bound by the
statements made during the plea colloquy, and defendant may not later offer
reasons for withdrawing the plea that contradict statements made when he pled[,]”
he was prohibited from subsequently claiming that he was coerced into entering a
plea. (Id. at pp. 3,6 (quoting Commonwealth v. McCauley, 797 A.2d 920, 922 (Pa.
Super. 2001)).
The state court’s determination that the plea was knowing and voluntary
and, as such, counsel was not ineffective, is in accord with, and involves a
reasonable application of Strickland and other applicable clearly established United
States Supreme Court precedent. Further, the state court’s factual findings
regarding the knowing and voluntary nature of the plea are objectively reasonable
in light of the state court record.
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2.
Ground Two: Failure to Challenge the Prior Record Score
or the Weight of the Heroin
Petitioner next “asserts that counsel was ineffective for not challenging the
prior record score used or the weight of the heroin, and both affected the eventual
sentence.” (Doc. 1, p. 6). “Whether before, during, or after trial, when the Sixth
Amendment applies, the formulation of the standard is the same: reasonable
competence in representing the accused. Strickland, 466 U.S., at 688, 104 S.Ct.
2052. In applying and defining this standard substantial deference must be
accorded to counsel’s judgment. Id., at 689, 104 S.Ct. 2052. But at different
stages of the case that deference may be measured in different ways.” Premo v.
Moore, 562 U.S. 115, 126 (2011). A court’s role in evaluating counsel’s
performance in the context of an early plea is limited to a determination of whether
counsel was manifestly deficient in light of information available to counsel at the
time of the plea negotiation.
Acknowledging guilt and accepting responsibility by an early
plea respond to certain basic premises in the law and its function.
Those principles are eroded if a guilty plea is too easily set aside
based on facts and circumstances not apparent to a competent attorney
when actions and advice leading to the plea took place. Plea bargains
are the result of complex negotiations suffused with uncertainty, and
defense attorneys must make careful strategic choices in balancing
opportunities and risks. The opportunities, of course, include pleading
to a lesser charge and obtaining a lesser sentence, as compared with
what might be the outcome not only at trial but also from a later plea
offer if the case grows stronger and prosecutors find stiffened resolve.
19
A risk, in addition to the obvious one of losing the chance for a
defense verdict, is that an early plea bargain might come before the
prosecution finds its case is getting weaker, not stronger. The State's
case can begin to fall apart as stories change, witnesses become
unavailable, and new suspects are identified.
These considerations make strict adherence to the Strickland
standard all the more essential when reviewing the choices an attorney
made at the plea bargain stage. Failure to respect the latitude
Strickland requires can create at least two problems in the plea
context. First, the potential for the distortions and imbalance that can
inhere in a hindsight perspective may become all too real. The art of
negotiation is at least as nuanced as the art of trial advocacy, and it
presents questions farther removed from immediate judicial
supervision. There are, moreover, special difficulties in evaluating the
basis for counsel’s judgment: An attorney often has insights borne of
past dealings with the same prosecutor or court, and the record at the
pretrial stage is never as full as it is after a trial. In determining how
searching and exacting their review must be, habeas courts must
respect their limited role in determining whether there was manifest
deficiency in light of information then available to counsel. Lockhart
v. Fretwell, 506 U.S. 364, 372, 113 S.Ct. 838, 122 L.Ed.2d 180
(1993). AEDPA compounds the imperative of judicial caution.
Second, ineffective-assistance claims that lack necessary
foundation may bring instability to the very process the inquiry seeks
to protect. Strickland allows a defendant “to escape rules of waiver
and forfeiture,” Richter, 562 U.S., at ––––, 131 S.Ct. 770. Prosecutors
must have assurance that a plea will not be undone years later because
of infidelity to the requirements of AEDPA and the teachings of
Strickland. The prospect that a plea deal will afterwards be unraveled
when a court second-guesses counsel’s decisions while failing to
accord the latitude Strickland mandates or disregarding the structure
dictated by AEDPA could lead prosecutors to forgo plea bargains that
would benefit defendants, a result favorable to no one.
Premo, 562 U.S. 115, 124–26.
20
In considering whether counsel was ineffective in negotiating the plea and
sentence, the Superior Court “affirmed based on the PCRA court’s analysis.”
(Doc. 18-3, p. 5). The PCRA court stated as follows:
This Court would merely note that the Defendant’s sentencing was a
matter of agreement pursuant to the plea agreement entered into
between the Defendant and the Commonwealth.
(NT 3-7,
04/23/12)(NT 72). Consequently in that the Defendant received a
sentence, including the RRR1 minimum, negotiated between the
parties, and further taking into consideration the guilty plea colloquy
before the trial judge, this Court finds that the Defendant’s claim of
ineffectiveness based upon prior record score and weight to be
without merit. Commonwealth v. Brown, 982 A.2nd 1017 (Pa. Super
2009), Commonwealth v. Dalberto, 648 A.2nd 16 (Pa. Super 1994).
(Doc. 18-2, pp. 6-7). This conclusion is wholly supported by the transcript of the
proceedings. (Doc. 21-1). At the inception of the plea and sentencing hearing, the
Commonwealth and defense counsel, thoroughly vetted the negotiated plea
agreement with the court. Rosembert would benefit by entering a plea of guilty to
only three of the ten counts contained in the information, Counts 4 and 6, which
involved the delivery of heroin, and Count 1 which alleged corrupt organizations.
(Id. at p. 4). Counsel and the state court discussed the maximum penalties for all
counts which totaled forty years’ incarceration and significant monetary fines.
(Id.) Also discussed were the applicable mandatory minimums. Based on the
agreement that Count 4 involved the delivery of 4.3 grams of heroin, it was
determined that it carried a mandatory minimum of two years. Based on the
21
agreement that Count 6 concerned the delivery of 5.8 grams of heroin, it was
concluded that it carried a mandatory minimum of three years. The following
exchange demonstrates that the agreed upon heroin weights were clearly beneficial
to Rosembert:
The Court:
The other thing I should clarify, Count 4 of
the original information has a time frame of
January 31 of 2007 to October 14, 2010. I
think Counsel agree that for Count 4, we’d
accept the plea on the date of October 14th,
2010, 4.3 grams which is advantageous to
him, obviously.
Mr. Lampman:
That was the understanding.
The Court:
For instance, the Commonwealth alleges on
October 8, he delivered 19.5 grams.
Mr. Doherty:
Sure.
The Court:
Any objection then if we reflect on the
record and amendment of Count 4 to reflect
the delivery on October 14, 2010 of 4.3
grams of cocaine [sic]?
Mr. Doherty:
No.
Mr. Lampman:
No objection, Your Honor.
(Id. at 5). Also discussed was the sentencing range applicable to Count 1, corrupt
organization. “The standard range for this particular offense is an offense gravity
score of 9 with a prior record score of 4. The standard range is 21 to 27 months.
22
The Commonwealth and the Defense have agreed on a 21-month range which is in
the low end of the standard range. So, the total—it was agreed upon that Count
Number 1 will run consecutive to the preceding counts, which are Count 4 and
Count 6, which brings it to a total aggregate of 81 months to 162 months.” (Id. at
2).
Lastly, the parties agreed that Rosembert was RRR1 eligible, “which would
lead it to a range of 67 months.” (Id. at 3). “RRR1 was created to give eligible
non-violent offenders an incentive to behave while incarcerated and participate in
crime-reducing programming during incarceration. Offenders who successfully
complete their programming are eligible to receive a reduced minimum sentence.
The ultimate goal of RRR1 is to help offenders remain crime free after release.”1
Pennsylvania Department of Corrections Recidivism Risk Reduction Incentive
2010 Report, January 2011.
At the PCRA hearing, counsel testified as follows:
Q.
Was there a PSI done?
A.
No, there wasn’t.
Q.
And did you have a discussion with the defendant about
what could be contained in the PSI and whether that
would have been helpful to have waited?
1
Act 81 of 2008, which established RRR1, was signed into law on September 25, 2008 and
became effective on November 24, 2008. Pennsylvania Department of Corrections Recidivism
Risk Reduction Incentive 2010 Report, January 2011.
23
A.
I don’t think I did. This was an agreed-upon sentence. I
felt confident on what his record score was. But,
regardless, it was an agreed-upon sentence that the Judge
indicated that he was willing to follow.
Q.
And what was the agreed-upon sentence? Twelve years,
do you recall?
A.
Well I remember with RRR1 it came down to a 67-month
minimum. I believe it was – I think it was 81 to 162
months before the RRR1 calculations and credit. What it
came down to was with RRR1 it was a 67-month
minimum. Obviously, Mr. Rosembert wanted a 60month minimum; but he also got, of course, the credit for
the time served.
(Doc. 21-5, p. 20).
It is clear that the state courts’ conclusions, that trial counsel’s representation
during the plea and sentencing stage was constitutionally adequate, was in
complete accord with the deference required by Strickland and other applicable
United States Supreme Court precedent and was based on a reasonable
determination of the facts in light of the evidence presented in the state court
proceedings.
24
3.
Ground Three: Failure to file a Direct Appeal
Rosembert contends that he was “abandoned on appeal, where no appeal
was filed on his behalf, although defendant requested that an appeal be filed.”
(Doc. 1, p. 7). It is well-settled that counsel’s role as advocate requires that he
support his client’s appeal to the best of his ability. Anders v. State of Cal., 386
U.S. 738, 744 (1967). In Roe v. Flores-Ortega, 528 U.S. 470 (2000), the Supreme
Court interpreted Strickland, as requiring that defense counsel consult with a
defendant about whether he or she wishes to appeal a conviction. If that
consultation occurs and the defendant does not express a wish to appeal, counsel is
not per se professionally unreasonable for not filing an appeal. Flores-Ortega, 528
U.S. at 478. The Court explained, however, that if a criminal defendant expressed
a wish to appeal, a defense counsel is professionally unreasonable if he or she fails
to do so. See id. at 477 (“We have long held that a lawyer who disregards specific
instructions from the defendant to file a notice of appeal acts in a manner that is
professionally unreasonable.”).
The Superior Court addressed the issue as follows:
The PCRA court addressed this claim in its Opinion and
determined that trial counsel was not ineffective, as the court credited
trial counsel’s testimony at the PCRA hearing that Rosembert did not,
in fact, request counsel to file a direct appeal. See PCRA Court
Opinion, 11/13/13, at 7-9. We agree with the PCRA court’s
determination, and its rationale is supported by the record and the law;
25
therefore, we affirm on that basis…. See id.; see also Commonwealth
v. Mitchell, 2014 Pa. LEXIS3366, at *26 (Pa. 2014)(stating that an
appellate court is “bound by the PCRA court’s credibility
determinations, which are supported by the record….”).
(Doc. 18-3, pp. 5, 6). The PCRA court recognized that the failure to file a
requested direct appeal “denies the accused the assistance of counsel and the right
to a direct appeal….” (Doc. 18-2, p. 7) (citations omitted). It further noted that
“[b]efore a court will find ineffectiveness of trial counsel for failing to file a direct
appeal, the appellant must prove that he requested an appeal and that counsel
disregarded this request. Commonwealth v. Harmon, 738 A.2d 1023 (Pa. Super
1999), appeal denied 753 A.2d 815 (Pa. 2000).” (Id.) The state court opinions
clearly adhered to the above governing Supreme Court principles.
With regard to the factual determinations, the PCRA court summarized the
hearing testimony on this issue as follows: “In the instant matter, the Defendant
testified that he instructed trial counsel to appeal (NT 14-15). In response to that
allegation, trial counsel testified that the defendant did not ask him to file an
appeal. (NT 69). Trial counsel testified that “usually before someone takes a plea,
I explain to them their post sentence rights. It is something I always explain. It’s
just standard practice.” (NT 68-68). Further in response to questioning from the
court, trial counsel testified that he did not feel there was a meritorious basis for an
26
appeal and again reiterated that the Defendant never asked that an appeal be taken.
(NT 76).” (Doc. 18-2, p. 7).
Based on this testimony, the PCRA concluded as follows:
The Court finds that trial counsel was credible in his testimony
that he was never requested to file an appeal and further, that the
Defendant has failed to convincingly support the contention that a
request for an appeal was actually made in this case. This Court holds
that there was not an unjustified failure to file a requested direct
appeal and therefore the conduct of counsel did not fall beneath the
range of competence demanded of attorneys in criminal cases.
Commonwealth v. Lantzy, Supra.
As noted above, trial counsel testified that he explains to
defendants their post sentence rights prior to taking a plea. It is also
noteworthy that the sentencing court specifically set forth the
Defendant’s post sentence rights….”
***
It should also be noted that trial counsel testified that he did not
feel there was any meritorious basis for an appeal after the guilty plea
in that the Court had jurisdiction, trial counsel was effective, the
Defendant had not received an illegal sentence, but rather had
received the sentence that was agreed upon.
(NT 76).
nd
Commonwealth v. Boyd, 835 A.2
812 (Pa. Super 2003);
Commonwealth v. Brown, Supra. The Court finds that a rational
Defendant would not want to appeal as there were no non-frivolous
grounds for appeal and this particular Defendant did not reasonably
demonstrate to counsel that he was interested in appealing.
Commonwealth v. Touw, 781 A.2d 1250 (Pa. Super 2001) citing Roe
v. Flores-Ortega, 528 U.S. 470 (2000).
Therefore, the Court finds that Defendant’s final contention that
trial counsel was ineffective for failing to file an appeal is without
merit.
27
(Doc. 18-2, pp. 8-9). The above demonstrates that the state court’s application of
Strickland to this ineffectiveness claim was objectively reasonable, and that the
decision was based on a reasonable determination of the facts gleaned from the
plea and sentencing transcript, the negotiated and executed plea offer, and the
PCRA hearing transcript.
IV.
CONCLUSION
For the reasons set forth above, the petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2254 will be denied.
Pursuant to 28 U.S.C. § 2253(c), unless a circuit justice or judge issues a
certificate of appealability (“COA”), an appeal may not be taken from a final order
in a proceeding under 28 U.S.C. § 2254. A COA may issue only if the applicant
has made a substantial showing of the denial of a constitutional right. 28 U.S.C. §
2253(c)(2). “A petitioner satisfies this standard by demonstrating that jurists of
reason could disagree with the district court’s resolution of his constitutional
claims or that jurists could conclude the issues presented are adequate to deserve
encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322 (2003).
Petitioner fails to demonstrate that a COA should issue.
The denial of a certificate of appealability does not prevent Rosembert from
appealing the order dismissing his petition so long as he seeks, and obtains, a
28
certificate of appealability from the court of appeals. See FED. R. APP. P. 22(b)(1),
(2).
A separate order will enter.
29
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