IN THE COURT OF COMMON PLEAS OF LANCASTER COUNTY, PENNSYLVANIA CRIMINAL

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1 Commonwealth v. Lazarus No. 5165, 5166, 5171, Knisely, J. January 12, 2016 Criminal Law Post Conviction Relief Act (PCRA) Ineffective Assistance of Counsel Guilty Plea Defendant not entitled to PCRA where Defendant s testimony at the guilty plea and at the PCRA hearing indicate that his plea was knowingly, voluntarily, and intelligently entered. Defendant told the Court that he reviewed the guilty plea colloquy form with his attorney. The Court also reviewed the charges Defendant was facing and Defendant told the Court he reviewed the guilty plea slip that listed each offense to which he was pleading guilty, and was aware of each charge. The Court explained, and Defendant understood, that because Defendant was entering an open guilty plea, the Court would be responsible for imposing a sentence, guided by the sentencing guidelines and limited to the maximums. Defendant s mere displeasure with the Sentence he received does not render the sentence illegal or improper, nor does his displeasure render his attorney s representation ineffective.

2 IN THE COURT OF COMMON PLEAS OF LANCASTER COUNTY, PENNSYLVANIA CRIMINAL COMMONWEALTH OF PENNSYLVANIA : : vs. : No. 5165, 5166, 5171, : STEWART MICHAEL LAZARUS : PCRA OPINION BY: KNISELY, J. January 12, 2016 Before the Court is Petitioner Stewart Michael Lazarus s petition filed pursuant to the Post Conviction Relief Act ( PCRA ). 1 In his petition, Defendant alleged that he was entitled to PCRA relief on the basis that trial counsel was ineffective for advising Defendant that entering a guilty plea to offenses that Defendant did not commit would not ultimately affect his aggregate sentence. 2 This Court held a hearing on the matter on October 16, 2015 and ordered that briefs be filed by the parties. Those briefs having been filed, and the matter is now ripe for disposition. BACKGROUND Defendant was responsible for numerous residential burglaries that occurred in Millersville, PA and its surrounding townships throughout much of Defendant stole jewelry, coins, cash, paintings, firearms, and various other items. Defendant was ultimately arrested after police responded to a report of a burglary in progress at a Millersville residence and Defendant was found inside the home without a lawful reason. Following his arrest, Defendant admitted to breaking into many of the residences. Police seized property from Defendant s home, photographed the property, and had the victims of the various burglaries identify items that belonged to them Pa.C.S.A See Amended Motion for Post-Conviction Collateral Relief, 8/3/15, at page 6. 2

3 As a result of his criminal behavior, Defendant was charged at docket with 25 counts of Burglary, 3 one count of Escape, 4 three counts of Criminal Attempt, 5 four counts of Theft by Unlawful Taking, 6 and one count of Possession of Marijuana with Intent to Deliver. 7 At docket , Defendant was charged with eight counts of Burglary. 8 At docket , Defendant was charged with one count of Burglary. 9 At docket , Defendant was charged with one count of Burglary 10 and one count of Theft by Unlawful Taking. 11 On August 26, 2013, Defendant pled guilty on docket to 20 counts of Burglary, one count of Escape, three counts of Criminal Attempt, four counts of Theft by Unlawful Taking, and one count of Possession of Marijuana with Intent to Deliver; on docket to six counts of Burglary; on docket to one count of Burglary; on docket to one count of Burglary and one count of Theft by Unlawful Taking. 12 The parties agreed to stipulate to the facts set forth in the Criminal Informations filed by the Commonwealth as the factual basis for Defendant s crimes. 13 When he appeared before this Court to enter his guilty plea, Defendant acknowledged that he was aware of, and had reviewed with counsel, the factual information relative to each of the 28 burglaries. 14 Defendant indicated that it was his decision to plead guilty to the charges, and further indicated that he was pleading guilty because he did, in fact, commit each of the 3 18 Pa. C.S.A. 3502(a) Pa. C.S.A. 5121(a) Pa. C.S.A. 901(a) Pa. C.S.A. 3921(a) P.S (a)(30) Pa. C.S.A (a) Pa. C.S.A (a) Pa. C.S.A (a) Pa. C.S.A. 3921(a). 12 See Transcript of Proceedings, Guilty Plea, August 26, 2013 (Knisely, J.) (hereinafter Guilty Plea at ) at Guilty Plea at 3, Guilty Plea at 14. 3

4 offenses. 15 Defendant was not forced, threated, or coerced in any way to plead guilty. 16 Moreover, Defendant indicated that he understood it was up to this Court to determine his sentence, which included his understanding that it was up to this Court to determine whether to impose concurrent or consecutive sentences. 17 Defendant understood the sentencing guideline recommendations and the maximum penalties allowed by law for each offense. 18 After accepting Defendant s written guilty plea colloquy form and conducting an on-the-record colloquy with Defendant, this Court accepted Defendant s plea as knowingly, intelligently, and voluntarily made. 19 Defendant was sentenced on November 20, On docket , Defendant was sentenced to 1-2 years for each of the burglaries, to be served consecutively with each other and the other dockets; 5 years probation for escape, to be served consecutively with the burglary counts; 5 years probation for each of the criminal attempt counts, to be served concurrently with each other and concurrent to the escape count; 1-2 years for each of the theft by unlawful taking counts, to be served consecutively with each other and the burglary counts. 20 On docket , Defendant was sentenced to 1-2 years on each of the burglary counts, to be served consecutively with each other and the other dockets. 21 On docket , Defendant was sentenced to 1-2 years for the Burglary, to be served consecutively with the other dockets. 22 On Docket , Defendant was sentenced to 1-2 years for the Burglary, to be served consecutively with the other dockets and 1-2 years for the Theft by Unlawful Taking, also to be 15 Guilty Plea at Guilty Plea at Guilty Pleat at Guilty Plea at Guilty Plea at See Transcript of Proceedings, Sentencing, November 20, 2013 (Knisely, J.) (hereinafter Sentencing at ) at Sentencing at Sentencing at 30. 4

5 served consecutively. 23 In sum, the aggregate sentence imposed on Defendant as to incarceration in a State Correctional Institution was 33 years to 66 years. 24 Defendant was sentenced within the standard range of the guideline sentence. Defendant appealed this Court s sentence. On October 15, 2014, the Superior Court affirmed Defendant s judgment of sentence. Defendant filed a pro se PCRA petition on June 2, 2015, and this Court appointed counsel. A counseled, amended PCRA petition was filed on August 3, 2015, alleging ineffective assistance of counsel on the basis that trial counsel was ineffective for advising Defendant that entering a guilty plea to offenses that he did not commit would not ultimately affect his aggregate sentence. 25 An evidentiary hearing was held on October 16, At the hearing, Defendant presented four witnesses: Attorney Christopher Sarno, who represented Defendant through his guilty plea, Attorney MaryJean Glick, who represented Defendant during his direct appeal to the Superior Court, Attorney Christopher Lecher, Assistant District Attorney for the Commonwealth of Pennsylvania who prosecuted Defendant, and Defendant. Attorney Sarno testified that he represented Defendant from the preliminary hearing through the sentencing. 26 Due to the number of charges and the voluminous magnitude of discovery he received, Attorney Sarno created a discovery binder which broke down each count into an individual section. 27 Each section contained the corresponding police report, each item found inside Defendant s home and the corresponding burglarized residence, and any inculpatory statements made by Defendant. 28 Attorney Sarno met with Defendant several times at Lancaster 23 Sentencing at Sentencing at See Amended Motion for Post-Conviction Collateral Relief, 8/3/15, at page See Transcript of Proceedings, Post-Conviction Collateral Relief Hearing, October 16, 2015 (Knisely, J.) (hereinafter PCRA Hearing at ) at PCRA Hearing at PCRA Hearing at 20. 5

6 County Prison to review the discovery file and discuss potential plea deals. 29 Each time they met, Attorney Sarno brought the discovery binder with him and reviewed its contents with Defendant. 30 With regard to the Painter residence burglary, Attorney Sarno testified that, initially, Defendant questioned that charge. 31 His questions stopped, however, after Attorney Sarno confronted Defendant with items that police recovered from Defendant s home which the Painters had previously reported as stolen. 32 Defendant never told Attorney Sarno that Ms. Painter had actually voluntarily given him the items which she reported as stolen. 33 As for the Ravegum residence burglary, Attorney Sarno indicated that Defendant also question that charge from time-to-time. 34 However, Defendant did not tell Attorney Sarno that he never committed that burglary. 35 Instead, Defendant s questions primarily concerned the seriousness of the charge and his desire to procure a more favorable plea offer from the Commonwealth. 36 Nevertheless, as with the Painter residence burglary, Defendant s challenges to the Ravegum burglary charge ended after Attorney Sarno confronted Defendant with property found inside his home which Ms. Ravegum had previously reported as stolen, namely, a Tiffany necklace. 37 The Commonwealth offered Defendant a plea deal of 20 to 40 years incarceration. 38 Attorney Sarno reviewed the offer with Defendant in detail and on numerous occasions. 39 Attorney Sarno told Defendant the offer was fair and generous. 40 Attorney Sarno even wrote out 29 PCRA Hearing at PCRA Hearing at PCRA Hearing at PCRA Hearing at PCRA Hearing at 40, PCRA Hearing at PCRA Hearing at PCRA Hearing at 39, PCRA Hearing at PCRA Hearing at 40. 6

7 for Defendant why the Commonwealth s offer was reasonable relative to the sentencing guideline recommendations and the number of burglary offenses charged. 41 Furthermore, Attorney Sarno advised Defendant that losing at trial would likely ensure that his sentence for each burglary count would run consecutively. 42 Ultimately, Defendant rejected the Commonwealth s offer and decided to enter an open guilty plea, with the Commonwealth agreeing to nol pros 7 of the burglary charges. 43 Attorney Sarno testified that Defendant believed he would receive a more lenient sentence pleading open to 28 burglary counts, somewhere in between, as a minimum 10 to 20 [years]. 44 Eventually, Defendant believed he was going to get maybe 15 to 30 or 12 to 24, one of those two. 45 Attorney Sarno visited Defendant at Lancaster County Prison numerous times to discuss the case. 46 During Attorney Sarno s meetings with Defendant, they reviewed each and every Criminal Information. 47 After Defendant decided to plead guilty, Attorney Sarno counseled Defendant through his completion of the guilty plea colloquy form, reviewing the specific counts to which Defendant would be pleading. 48 Their review included discussing every address burglarized, every item stolen, and the value of each stolen item. 49 More specifically, Attorney Sarno and Defendant reviewed all information relative to both the Ravegum residence burglary and Painter residence burglary. 50 Defendant never objected to, or claimed he was innocent of, 39 PCRA Hearing at PCRA Hearing at PCRA Hearing at PCRA Hearing at PCRA Hearing at PCRA Hearing at PCRA Hearing at PCRA Hearing at PCRA Hearing at 47-48, 55, PCRA Hearing at PCRA Hearing at 47-48, PCRA Hearing at

8 any of the charges. 51 Attorney Sarno never promised Defendant that he would get a lower sentence based on the volume of counts or that his sentence would be run concurrent. 52 Defendant testified that Attorney Sarno never discussed all of the burglary counts with him while he completed the guilty plea colloquy form. 53 Nevertheless, Defendant testified that he knew that he was pleading guilty to the Ravegum burglary and the Painter burglary. 54 Despite acknowledging that he knew each and every crime he was pleading guilty to, Defendant never indicated that he was not guilty of burglarizing either residence at either his guilty plea or sentencing. 55 Defendant testified that he did not object to either burglary because [he] just didn t think that was the right time to do it Defendant testified that he simply did not believe that pleading guilty to those crimes would affect his overall sentence because he believed he would not receive consecutive sentences for each count. 57 Defendant conceded that Attorney Sarno never made such a guarantee, however. 58 DISCUSSION Defendant s claim challenges the effectiveness of his trial counsel. It is well-established that counsel is presumed effective. Strickland v. Washington, 466 U.S. 668, 689 (1984). A PCRA petitioner bears the burden of rebutting that presumption by demonstrating that counsel's performance was deficient and that such deficiency prejudiced him. Id. The Pennsylvania Supreme Court divided the Strickland standard into three prongs, two prongs for deficient performance and one prong for prejudice. Commonwealth. v. Koehler, 36 A.3d 121, 132 (Pa. 2012) (citing Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973, 975 (1987)). The resulting 51 PCRA Hearing at PCRA Hearing at 55, PCRA Hearing at PCRA Hearing at 86, PCRA Hearing at PCRA Hearing at PCRA Hearing at PCRA Hearing at 88,

9 three prongs to prove counsel ineffective are: (1) the underlying claim has arguable merit; (2) counsel's actions lacked an objective reasonable basis; and (3) the defendant was prejudiced by counsel's act or omission. Id. Counsel will not be deemed ineffective if any reasonable basis exists for his actions, and, even if counsel had no reasonable basis for his actions, a defendant is not entitled to relief if he fails to demonstrate prejudice. Commonwealth v. Loner, 836 A.2d 125, 133 (Pa. Super. 2003)(citing Commonwealth v. Douglas, 645 A.2d 226, 231-2)(Pa. 1994)). Prejudice in the context of ineffective assistance of counsel requires a demonstration that there was a reasonable probability that but for counsel s error; the outcome of the proceeding would have been difference. Commonwealth v. Kimball, 724 A.2d 326, 331 (Pa. 1999). A reasonable probability is a probability sufficient to undermine confidence in the outcome. Commonwealth v. Chambers, 807 A.2d 872, 883 (Pa. 2002)(quoting Strickland v. Washington, 466 U.S. 668, 694 (1984)). Prejudice occurs when the errors were so serious as to deprive the defendant of a trial whose result is reliable. Id. A criminal defendant has the right to effective counsel during a plea process as well as during trial. Commonwealth v. Rathfon, 899 A.2d 365, 369 (Pa. Super. 2006) (citation omitted). Allegations of ineffectiveness in connection with the entry of a guilty plea will serve as a basis for relief only if the ineffectiveness caused the defendant to enter an involuntary or unknowing plea. Commonwealth v. Hickman, 799 A.2d 136, 141 (Pa. Super. 2002) (citation omitted). That is, in claims of counsel s ineffectiveness in connection with a guilty plea, such a claim will provide a basis for relief only: if the ineffectiveness caused an involuntary or unknowing plea. This is similar to the manifest injustice standard applicable to all post-sentence attempts to withdraw a guilty plea. The law does not require that the appellant be pleased with the outcome of his decision to enter a plea of guilty. All that must be shown 9

10 is that the appellant s decision to plead guilty be knowing, voluntary and intelligently made. Commonwealth v. Diaz, 913 A.2d 871, 872 (Pa. Super. 2006)(citing Commonwealth v. Lewis, 708 A.2d 497, (Pa. Super. 1998). Where the defendant enters his plea on the advice of counsel, the voluntariness of the plea depends on whether counsel s advice was within the range of competence demanded of attorneys in criminal cases. Id. (citations and internal quotation marks omitted). Once the defendant has entered a guilty plea, it is presumed that he was aware of what he was doing, and the burden of proving involuntariness is upon him. Commonwealth v. Willis, 68 A.3d 997, 1002 (Pa. Super. 2013) (internal quotation marks and citations omitted). The Pennsylvania Rules of Criminal Procedure mandate that a guilty plea be offered in open court, and advise that the trial court should inquire into at least six areas in order to show that the plea was voluntarily, knowingly, and intelligently entered. Pa.R.Crim.P Those six areas include: (1) Does the defendant understand the nature of the charges to which he is pleading guilty?; (2) Is there a factual basis for the plea?; (3) Does the defendant understand that he has the right to trial by jury?; (4) Does the defendant understand that he is presumed innocent until he is found guilty?; (5) Is the defendant aware of the permissible range of sentences and/or fines for the offenses charged?; (6) Is the defendant aware that the judge is not bound by the terms of any plea agreement tendered unless the judge accepts such agreement? Id. Additionally, a defendant is bound by the statements he makes during his guilty plea colloquy and may not assert grounds for withdrawing the plea that contradict statements made when he pled. Commonwealth v. McCauley, 797 A.2d 920, 922 (Pa. Super. 2001). In this case, Defendant s testimony at the guilty plea and at the PCRA hearing indicate that his plea was knowingly, voluntarily, and intelligently entered. At the guilty plea, Defendant 10

11 told the Court that he reviewed the guilty plea colloquy form with his attorney. 59 The Court also reviewed the charges Defendant was facing and Defendant told the Court he reviewed the guilty plea slip that listed each offense to which he was pleading guilty, and was aware of each charge. 60 The Commonwealth, Defendant, and Defendant s counsel agreed to stipulate to the facts set forth in the criminal informations filed by the Commonwealth as the factual basis for the crimes. 61 Moreover, the Court specifically questioned Defendant on his understanding of his right to a jury trial, the Commonwealth s burden to prove each element beyond a reasonable doubt, and the necessity of a unanimous jury verdict; Defendant indicated that he understood all these rights. 62 The Court reviewed all the charges faced by Defendant, including the maximum penalties for incarceration and fines, which totaled up to 602 years in prison and up to $840,000 in fines. 63 The Court asked whether Defendant had been forced, threatened, or coerced in any way to plead guilty; Defendant responded no. 64 The Court asked if Defendant was pleading guilty of his own free will because, in fact, he did commit each of the counts to which he was pleading; Defendant answered yes. 65 Finally, the Court explained, and Defendant understood, that because Defendant was entering an open guilty plea, the Court would be responsible for imposing a sentence, guided by the sentencing guidelines and limited to the maximums. 66 The Court found Defendant s plea to be knowingly, voluntarily, and intelligently entered and accepted the plea Guilty Plea at Guilty Plea at Guilty Plea at 3, Guilty Plea at Guilty Plea at Guilty Plea at Guilty Plea at Guilty Plea at Guilty Plea at

12 At the PCRA hearing, the Court found the testimony of Attorney Sarno to be very credible, whereas Defendant did not testify credibly. Attorney Sarno visited Defendant numerous times at Lancaster County Prison to discuss the case, he thoroughly reviewed discovery with Defendant, and Defendant was engaged in the process. Defendant did not indicate at any point during his completion of the guilty plea colloquy form that he was innocent of any of the 28 burglaries. When Defendant appeared in court for his guilty plea hearing, Defendant was aware of each charge he was pleading guilty to, including the Ravegum burglary and the Painter burglary. Defendant never indicated that he did not want to plead guilty to either charge because he was innocent. Defendant never asked to withdraw his plea relative to those charges. Defendant also remained silent relative to his purported innocence of those charges when he appeared for sentencing. Defendant s testimony reveals that he is simply unhappy with the sentence he received based on his decision to enter a plea of guilty to 28 counts of burglary and various other crimes. A decision that, the record clearly shows, was knowingly, intelligently, and voluntarily made. Defendant s displeasure does not render the sentence illegal or improper, nor does his displeasure render Attorney Sarno s representation ineffective. Because Defendant has failed to demonstrate that his claim has arguable merit, trial counsel will not be deemed ineffective. Commonwealth v. Loner, 836 A.2d 125, 133 (Pa. Super. 2003)(citing Commonwealth v. Douglas, 645 A.2d 226, 231-2)(Pa. 1994)). 12

13 IN THE COURT OF COMMON PLEAS OF LANCASTER COUNTY, PENNSYLVANIA CRIMINAL COMMONWEALTH OF PENNSYLVANIA : : vs. : No. 5165, 5166, 5171, : STEWART MICHAEL LAZARUS : PCRA ORDER AND NOW, this day of January, 2016, having considered Defendant s petition filed pursuant to the Post Conviction Relief Act 68 on August 3, 2015, the arguments of counsel, and the evidence presented at the hearing in this matter on October 16, 2015, Defendant s petition is hereby DENIED. Defendant is hereby advised of his right to appeal this decision within thirty (30) days from the date of entry of this Order by the Lancaster County Clerk of Courts Office. Defense counsel is directed to timely provide this Order and notice to Defendant. BY THE COURT: Attest: HOWARD F. KNISELY JUDGE Copies to: Adam L. Szilagyi, 40 East Grant Street, Lancaster, PA Trista M. Boyd, Assistant District Attorney Pa.C.S.A