Com. v. Burkholder

• Decision Date: 07 October 1998
• Citation: 719 A.2d 346
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Rodney Lee BURKHOLDER, Appellant.
• Court: Pennsylvania Superior Court

719 A.2d 346

COMMONWEALTH of Pennsylvania, Appellee, v. Rodney Lee BURKHOLDER, Appellant.

Superior Court of Pennsylvania.

Argued September 3, 1998.

Filed October 7, 1998.

William Costopoulos, Lemoyne, for appellant.

Clarence N. Patterson, Jr., Asst. Dist. Atty., York, for Com., appellee.

Before JOYCE and HESTER, JJ., and CIRILLO, President Judge Emeritus. CIRILLO, President Judge Emeritus:

Rodney Lee Burkholder appeals from a judgment of sentence entered in the Court of Common Pleas of York County. We affirm.

On December 20, 1996, at approximately nine o'clock in the evening, Rodney Burkholder was driving on Springwood Road, a two lane highway with a speed limit of thirty-five miles per hour. As he drove south in the northbound lane at sixty miles per hour, he collided with an oncoming vehicle and caused the death of its two occupants. Burkholder, who was legally intoxicated at the time of the accident,¹ was driving with a license that had been suspended until November, 1998 due to three prior DUI offenses. Burkholder was charged with two counts of homicide by vehicle while driving under the influence, two counts of homicide by vehicle, one count of driving under the influence of alcohol, two counts of involuntary manslaughter, two counts of aggravated assault by vehicle while driving under the influence and two counts of third-degree murder.²

A preliminary hearing was held before District Justice John W. Lafean on February 6, 1997, at which time Burkholder was bound over for court on all charges. Burkholder, represented by attorney Michael Fenton, pled nolo contendere to all of the charges. The Honorable John C. Uhler sentenced Burkholder to consecutive terms of seventeen to thirty-five years' imprisonment on each count of third-degree murder.³

Attorney Fenton timely filed a motion to modify the sentence which the trial court denied. Thereafter, present counsel filed a motion to withdraw the plea of nolo contendere, which was also denied. Burkholder filed a timely notice of appeal and a concise statement of matters complained of. The trial court filed a Rule 1925(a) opinion. On appeal, Burkholder presents the following issues for our review:

(1) Whether appellant should have been permitted to withdraw his nolo contendere plea to two counts of third-degree murder and related offenses based on the ineffective assistance of his attorney, who rendered him improper advice as to the sentence he would likely receive because the attorney did not know the statutory maximum sentence for third-degree murder had changed; advised him to plead "open" to all counts; and told him the court's sentence would be founded on the applicable guidelines and within them, all of which rendered the plea unintelligent, unknowing and involuntary and hence constitutes a manifest injustice?

(2) Whether the aggregate sentence imposed on appellant of 34 to 70 years incarceration was manifestly excessive because the court unreasonably exceeded the guidelines, imposed consecutive sentences and relied on guidelines for third-degree murder not in effect, and the factors cited by the court do not justify the extreme upward deviation?

(3) Whether defense counsel was ineffective for failing to raise and preserve for appellate review the court's violation of the sentencing code by failing to make a sufficient contemporaneous statement when imposing appellant's sentence far beyond the aggravated range of the guidelines and by failing to set forth the permissible ranges of sentences?

(4) Whether limiting appellant's right to direct appeal of the discretionary aspects of sentence violates appellant's right to appeal provided by the Pennsylvania Constitution and whether limiting such review to this court also violates said right to appeal, which right includes an appeal to the Supreme Court of Pennsylvania?

Our standard of review when evaluating a claim of ineffective assistance of counsel is well settled. We presume that trial counsel is effective and place on the defendant the burden of proving otherwise. Commonwealth v. Williams, 524 Pa. 218, 230, 570 A.2d 75, 81 (1990). We are first required to determine whether the issue underlying the claim is of arguable merit. Commonwealth v. Johnson, 527 Pa. 118, 122, 588 A.2d 1303, 1305 (1991). If the claim is without merit, our inquiry ends because counsel will not be deemed ineffective for failing to pursue an issue which is without basis. Id. Even if the underlying claim has merit, the appellant still must establish that the course of action chosen by counsel had no reasonable basis designed to effectuate the client's interests and, finally, that the ineffectiveness prejudiced his right to a fair trial. Id.; Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987).

Burkholder first asserts that counsel was ineffective for failing to properly advise him prior to the entry of the nolo contendere plea as to the sentence he would likely receive. It is well established that a claim of counsel's ineffectiveness made in connection with the entry of a guilty plea⁴ will provide a basis for relief only if the appellant can prove that the ineffectiveness caused an involuntary or unknowing plea. Commonwealth v. Lewis, 708 A.2d 497 (Pa.Super.1998). In order to ensure that a plea is voluntarily and knowingly entered, the trial court must inform the accused of the permissible range of sentence for each offense, as well as the total possible aggregate sentence. Commonwealth v. Persinger, 532 Pa. 317, 322-324, 615 A.2d 1305, 1308 (1992).

A careful review of the record indicates that Burkholder's claim is meritless. The trial court conducted a thorough on-the-record inquiry during the guilty plea colloquy that affirmatively demonstrated that his plea was "voluntarily and understandingly tendered." See Pa.R.Crim.P. 319.⁵ Prior to the guilty plea colloquy Burkholder's counsel told him that the maximum sentence he could receive on each count of third-degree murder was ten to twenty years. Even though Burkholder's counsel did not know that the statutory maximum for third-degree murder had increased from twenty to forty years at the time he advised entry of the nolo contendere plea, the Honorable John C. Uhler advised him of that change during the course of the guilty plea colloquy.⁶ Prior to the entry of the plea, Judge Uhler specifically informed Burkholder that he could be sentenced to a total term of imprisonment anywhere within the range of forty to eighty years. Burkholder signed the written guilty plea colloquy indicating that he understood that each count of third-degree murder carried with it a maximum term of imprisonment of twenty to forty years and that the sentences could be aggregated.

Therefore, even if trial counsel were ineffective, this claim does not warrant relief since Burkholder entered his nolo contendere plea with full knowledge of the maximum punishment that might be imposed. Lewis, supra.

In addition, no precedential support can be found for the proposition that the entry of an "open" plea constitutes ineffective assistance of counsel. Thus we conclude that no manifest injustice occurred when the trial court denied his post-sentence motion to withdraw his guilty plea.

Next, Burkholder contends that the trial court abused its discretion by unreasonably exceeding the sentencing guidelines, imposing consecutive sentences and relying on guidelines that were not yet in effect. In a challenge to the discretionary aspects of sentence, the appellant must invoke this court's jurisdiction by including in his or her brief a separate concise statement demonstrating that there exists a substantial question as to the appropriateness of the sentence under the Sentencing Code. See 42 Pa.C.S.A. § 9781; Commonwealth v. Tuladziecki, 513 Pa. 508, 511-513, 522 A.2d 17, 19 ( 1987); Pa.R.A.P. 2119(f). Here, Burkholder has included in his brief a 2119(f) statement which explicitly sets for the reasons relied upon for allowance of discretionary sentencing review and which, in our opinion, raises a "substantial question" as to the appropriateness of the sentence.⁷ See Commonwealth v. Wright, 411 Pa.Super. 111, 113, 600 A.2d 1289, 1290 (1991)

; see also Commonwealth v. Oliver, 693 A.2d 1342 (Pa.Super.1997)(citing Commonwealth v. Johnson, 446 Pa.Super. 192, 666 A.2d 690 (1995) and Commonwealth v. Nelson, 446 Pa.Super. 240, 666 A.2d 714 (1995)).

The standard of review in sentencing matters is well settled. Sentencing is a matter vested in the sound discretion of the sentencing judge, and a sentence will not be disturbed on appeal absent a manifest abuse of discretion. Commonwealth v. Anderson, 381 Pa.Super. 1, 16, 552 A.2d 1064, 1072 (1988). An abuse of discretion is more than just an error in judgment and, on appeal, the trial court will not be found to have abused its discretion unless the record discloses that the judgment exercised was manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will. 42 Pa.C.S.A. § 9781(c).⁸ See also Commonwealth v. Lane, 492 Pa. 544, 549, 424 A.2d 1325, 1328 (1981)

.

In exercising its discretion, the trial court must consider the character of the defendant and the particular circumstances of the offense in light of the legislative guidelines for sentencing, and the court must impose a sentence that is consistent with the protection of the public, the gravity of the offense, and the rehabilitative needs of the defendant. 42 Pa.C.S.A. § 9721(b). See Commonwealth v. McClendon, 403 Pa.Super. 467, 481, 589 A.2d 706, 713 (1991)

. It is well established that a court is permitted to impose a sentence that exceeds the sentencing guidelines, so long as it "provides a contemporaneous written statement of the reason or reasons for the deviation from the guidelines." 42 Pa.C.S.A § 9721(b). This requirement is satisfied when the judge states his reasons for the sentence on the record and in the defendant's presence. Commonwealth v. Smith, 369 Pa.Super. 1, 6, 534 A.2d...