Opinion
J-S49017-18 No. 418 MDA 2018
12-31-2018
COMMONWEALTH OF PENNSYLVANIA Appellee v. DAVID MICHAEL HARWI Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order Entered February 9, 2018
In the Court of Common Pleas of Schuylkill County
Criminal Division at No: CP-54-CR-0002084-2016 BEFORE: SHOGAN, STABILE, JJ., and STEVENS, P.J.E. MEMORANDUM BY STABILE, J.:
Former Justice specially assigned to the Superior Court.
Appellant, David Michael Harwi, appeals from the February 9, 2018 order dismissing his timely first petition under the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. §§ 9541-46. We reverse and remand.
The record reveals that on October 9, 2016, Appellant was charged with 31 sexual offenses, including rape, rape of a child, involuntary deviate sexual intercourse with a person under age 13, involuntary deviate sexual intercourse with a person under age 16, statutory sexual assault by a person 8 to 11 years older than the victim, aggravated indecent assault of a victim less than 13 years old, aggravated indecent assault of a victim less than 16 years old, incest of a minor under age 13, incest of a minor between ages 13 and 18, endangering the welfare of a child by a parent, corruption of a minor, indecent assault of a person less than 13 years of age, and indecent assault of a person less than 16 years of age. The charges arise from Appellant's repeated sexual abuse of his daughter over the span of more than six years. Appellant faced a maximum of 355 years in jail.
18 Pa.C.S.A. §§ 3121(a)(2), 3121(c), 3123(a)(6) and (7), 3121.1(a)(2), 3125(a)(7) and (8), 4303(b)(1) and (2), 4304(a)(1), 6301(a)(1)(ii), 3126(a)(7) and (8), respectively.
On March 31, 2017, several days before his jury trial was scheduled to begin, Appellant entered a negotiated guilty plea whereby the Commonwealth would recommend 15 to 30 years of incarceration followed by 10 years of probation and move to nolle pros various charges. The trial court conducted a plea colloquy that day and concluded Appellant entered a knowing, intelligent, and voluntary plea. Appellant waived a presentence investigation, and the trial court immediately imposed sentence in accord with the parties' agreement. On July 2, 2017, the trial court found Appellant to be a sexually violent predator and imposed lifetime registration requirements pursuant to the Sexual Offender Notification and Registration Act ("SORNA"), 42 Pa.C.S.A. § 9799.10, et seq.
Pursuant to this Court's decision in Commonwealth v. Butler , 173 A3d 1212 (Pa. Super. 2017), appeal granted , 190 A.2d 581 (Pa. 2018), the facts relevant to the SVP determination must be submitted to a fact finder and determined beyond a reasonable doubt. Thus, § 9799.24(e)(3) of SORNA is unconstitutional. We must sua sponte remand to the trial court to vacate the SVP determination in this case pursuant to Butler.
Appellant did not file a direct appeal. He filed this timely first PCRA petition on September 28, 2017 alleging that his guilty plea was the result of unlawful inducement and plea counsel's ineffective assistance. Appointed counsel represented Appellant at a December 1, 2017 hearing. The PCRA court denied relief on February 9, 2018, and this timely appeal followed.
On appeal, Appellant claims the PCRA court erred in rejecting his claims of ineffective assistance of counsel and an unlawfully induced plea. Appellant's Brief at 4.
Appellant's Brief treats ineffective assistance and unlawful inducement as a single issue. As we explain in the main text, they are distinct. See Commonwealth v. Barndt , 74 A.3d 185, 191 n.9 (Pa. Super. 2013).
In PCRA appeals, our scope of review is limited to the findings of the PCRA court and the evidence on the record of the PCRA court's hearing, viewed in the light most favorable to the prevailing party. Because most PCRA appeals involve questions of fact and law, we employ a mixed standard of review. We defer to the PCRA court's factual findings and credibility determinations supported by the record. In contrast, we review the PCRA court's legal conclusions.Com. v. Reyes-Rodriguez , 111 A.3d 775, 779 (Pa. Super. 2015), appeal denied , 123 A.2d 331 (Pa. 2015) (internal citations and quotation marks omitted). To establish that counsel was ineffective, a PCRA petitioner must prove that (1) the issue underlying counsel's act or omission is of arguable merit; (2) that counsel had no reasonable strategic basis for the act or omission; and (3) that the petition suffered prejudice. Id. at 780. To establish prejudice in this case, Appellant must prove he would have proceeded to trial but for counsel's error. Barndt , 74 A.3d at 192. We must presume that counsel rendered adequate assistance; the petitioner bears the burden of proving otherwise. Reyes-Rodriguez , 111 A.3d at 780.
Instantly, Appellant argues that he did not understand his plea, and that he and plea counsel were arguing during the plea colloquy. The sentencing transcript reflects that the trial court told Appellant he had the right to interrupt the court any time and confer with his attorney. N.T. Guilty Plea and Sentencing, 10/10/17, at 13. Appellant did not do so. To the contrary, he testified that he understood the charges, the facts, and the ramifications of his plea. As explained above, counsel procured a plea agreement limiting Appellant's maximum sentence to 30 years when he was facing a de facto life sentence. The record does not afford any basis for concluding that Appellant would have proceeded to trial but for counsel's ineffective assistance.
Regarding an unlawfully induced plea, a petitioner may obtain relief "where the circumstances make it likely that the inducement caused the petitioner to plead guilty and the petitioner is innocent." 42 Pa.C.S.A. § 9543(a)(2)(iii). Appellant claimed at one point that he was innocent of rape of a child. The record reflects that Appellant admitted to having sexual intercourse with his daughter, and he admitted to using his influence as her father to overwhelm her psychologically. N.T. Guilty Plea and Sentencing, 10/10/17, at 9, 11. He also admitted having sexual intercourse with her before she reached age 13. Id. at 12. The PCRA court therefore concluded that Appellant is not claiming innocence. Rather, he simply "cannot accept the law." PCRA Court Opinion, 2/9/18, at 12. "[Appellant] admits that he did the acts he was accused of, but denies they are a crime." Id. Appellant therefore cannot obtain relief under § 9543(a)(2)(iii).
"A person commits the offense of rape of a child, a felony of the first degree, when the person engages in sexual intercourse with a complainant who is less than 13 years of age." 18 Pa.C.S.A. § 3121(c).
We have reviewed the record, the parties' briefs, the PCRA court opinion, and the applicable law. We conclude that he PCRA court's February 9, 2018 opinion thoroughly and accurately addresses Appellant's contentions. We reject Appellant's assertions of ineffective assistance of counsel argument for reasons explained above and for those explained in the court's opinion. We direct that a copy of the opinion be filed along with this memorandum. Nonetheless, we reverse the order and remand to the trial court for resentencing in accord with Butler.
Order reversed. Case remanded. Jurisdiction relinquished.
Judge Shogan joins the memorandum.
President Judge Emeritus Stevens concurs in the result. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 12/31/18
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