Opinion
No. 2137 EDA 2019
06-02-2021
COMMONWEALTH of Pennsylvania v. Joseph Oesterle THIERS, Appellant
MEMORANDUM BY McLAUGHLIN, J.:
Joseph Oesterle Thiers appeals the denial of his request for relief under the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. §§ 9541 - 9546. We affirm on the basis of the PCRA court's opinion.
In 2015, Thiers entered an open guilty plea to four counts of Aggravated Assault for causing serious bodily injury to two victims and for attempting to cause serious bodily injury to two police officers. Thiers entered his guilty plea in light of the Commonwealth's agreement not to seek the mandatory minimum sentence of 20 to 40 years for shooting at a police officer, or the mandatory minimum sentence for use of a deadly weapon. The Commonwealth offered Thiers an aggregate sentence of 15 to 30 years’ imprisonment, which he refused in favor of his open plea. Thereafter, the trial court sentenced Thiers to an aggregate sentence of 22 to 44 years’ imprisonment and, pursuant to the plea agreement, marked the remaining charges, including multiple counts of criminal attempt to commit homicide and simple assault, as nol prossed. Thiers filed a timely post-sentence motion and request to modify his sentence, and the trial court denied the motion in October 2015. This Court affirmed Thiers’ judgment of sentence on November 29, 2017. Thiers did not seek discretionary review in our Supreme Court.
In December 2018, Thiers filed the instant, timely PCRA petition. The PCRA court held a hearing in March 2019 at which both Thiers and his trial counsel testified. Thiers contended that his trial counsel was ineffective for advising him to reject the Commonwealth's offer of 15 to 30 years of imprisonment and instead representing to him that the court would likely impose a sentence of 40 to 70 months’ incarceration. Thiers also maintained that his counsel never informed him of the maximum sentence he could receive for the crimes charged or about his right to withdraw his guilty plea. Further, he asserted that his trial counsel failed to give him a copy of an expert's report until after he was sentenced. Thiers argued that he thus never had the opportunity to correct factual discrepancies in the report.
However, during cross-examination, Thiers admitted that in both his oral and written plea colloquies he stated that his trial counsel had told him about the potential statutory maximum sentence he faced. Thiers further acknowledged that in his written colloquy, he stated he was aware he had 10 days from the date he was sentenced to withdraw his guilty plea. He claimed he made these acknowledgments simply to go along with counsel's plan.
Conversely, Thiers’ trial counsel testified that after receiving Thiers’ permission, he met with the prosecution and was able to negotiate their agreement not to seek the mandatory minimum sentences. Counsel then explained that he presented Thiers with the Commonwealth's proposed plea deal but did not advise him to either accept or reject the deal. Further, counsel stated that he did not tell Thiers that he could obtain a sentence of 40 to 70 months for him. Rather, according to counsel, he relayed to Thiers that if he entered an open plea, he could not control the amount of prison time the trial court might impose. Counsel also said that he informed Thiers about the maximum aggregate sentence he could receive and about his post-sentence rights, including the right to withdraw his guilty plea. Finally, trial counsel asserted that he had reviewed the contested expert's report with Thiers before submitting it to the court. Following the hearing, the court denied the petition.
On appeal, Thiers presents the following issues for our review:
1. Whether Attorney Sean Cullen provided ineffective assistance of counsel by advising [Thiers] to reject the offer by the Commonwealth of 15 to 30 years based on Attorney Sean Cullen's suggestion that an open plea to the charges would likely result in a total sentence of 40 to 60 months? More specifically, at the PCRA hearing, Attorney Sean Cullen did not articulate a legally sufficient basis or strategy for his failure to appropriately advise [Thiers]. Therefore, [Thiers’] plea was not knowing, intelligent or voluntary.
2. Whether Attorney Sean Cullen provided ineffective assistance of counsel by failing to advise [Thiers] that the maximum possible sentence that [Thiers] could receive was 40 to 80 years? More specifically, counsel also failed to advise [Thiers] of his right to withdraw his guilty plea within ten days of having pled guilty and failed to instruct [Thiers] of his right to withdraw his guilty plea within ten days of being sentenced. At the PCRA hearing, Attorney Sean Cullen did not articulate a legally sufficient basis or recognizable strategy for his failure to do so. Therefore, [Thiers’] plea was not knowing, intelligent or voluntary.
3. Whether Attorney Sean Cullen provided ineffective assistance of counsel by failing to obtain and review the report of [Thiers’] expert prior to it being submitted to the [c]ourt for sentencing which contained significant factual errors? More specifically, [Thiers’] attorney never presented it to [Thiers] prior to submitting it to the [c]ourt. At the PCRA hearing, Attorney Sean Cullen did not articulate a legally sufficient basis or strategy for his failure to do so.
Thiers’ Br. at 7-8.
Our standard of review of an order denying PCRA relief is limited to determining "whether the PCRA court's determination is supported by evidence of record and whether it is free of legal error." Commonwealth v. Hart , 199 A.3d 475, 481 (Pa.Super. 2018) (citation omitted). We are bound by any credibility determinations made by the PCRA court that are supported by the record but apply a de novo standard of review to the PCRA court's legal conclusions. Commonwealth v. Medina, 92 A.3d 1210, 1214-15 (Pa.Super. 2014) (en banc ).
Thiers challenges the effectiveness of trial counsel. We presume counsel was effective. Commonwealth v. Lesko, 15 A.3d 345, 380 (Pa. 2011). Therefore, Thiers bore the burden of pleading and proving all of the following:
(1) the underlying claim has arguable merit;
(2) no reasonable basis existed for counsel's actions or failure to act; and
(3) petitioner suffered prejudice as a result of counsel's error such that there is a reasonable probability that the result of the proceeding would have been different absent such error.
Id. at 373.
The PCRA court denied all of Thiers’ ineffectiveness claims, and we affirm based on the Pa.R.A.P 1925(a) opinion of the Honorable Thomas P. Rodgers. In his first claim, Thiers contends that his trial counsel was ineffective for advising him to reject the Commonwealth's plea offer and instead asserting that his open guilty plea would likely result in the sentencing court imposing a sentence of 40 to 70 months’ incarceration. Similarly, in his second claim, Thiers maintains that his trial counsel was ineffective for failing to inform him of his possible maximum sentence and about his right to withdraw his guilty plea. The PCRA court specifically determined that trial counsel's testimony regarding Thiers’ first two issues was credible. In short, the court concluded that counsel had properly informed Thiers about the Commonwealth's offer, his potential sentence, and his right to withdraw his guilty plea. Thus, the PCRA court found that Thiers’ counsel was not ineffective. See PCRA Ct. Op., 7/13/20, at 19-20.
In his third claim, Thiers argues that his counsel was ineffective for failing to review an expert's report with him prior to submitting it to the court. He argues that the report contained incorrect dates as well as inaccurate statements regarding his temperament. However, Thiers never explains how these alleged inaccuracies prejudiced him and the PCRA court explains that none of the alleged errors factored into the court's fashioning of Thiers’ sentence. Moreover, counsel asserted that he had reviewed the expert report with Thiers and the court found counsel's testimony to be credible. Thus, once again, the PCRA court concluded that Thiers did not prove that his trial counsel was ineffective. Id. at 20-21.
After a review of the parties’ briefs, the certified record, and the relevant law, we find no abuse of discretion or error in the PCRA court's denial of relief. We thus affirm the rejection of Thiers’ PCRA petition on the basis of Judge Rodgers’ opinion.
Order affirmed.
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