Com. v. Munson

• Decision Date: 28 September 1992
• Citation: 615 A.2d 343,419 Pa.Super. 238
• Parties: COMMONWEALTH of Pennsylvania v. Shawn MUNSON, Appellant.
• Court: Pennsylvania Superior Court

Page 343

615 A.2d 343

419 Pa.Super. 238

COMMONWEALTH of Pennsylvania v. Shawn MUNSON, Appellant.

Superior Court of Pennsylvania.

Submitted June 1, 1992.

Filed Sept. 28, 1992.

Daniel Silverman, Philadelphia, for appellant.

Kathy L. Echternach, Asst. Dist. Atty., Philadelphia, for Com., appellee.

Before WIEAND, BECK and MONTGOMERY, JJ.

WIEAND, Judge:

Shawn Munson entered a plea of guilty to a charge of participating in a corrupt organization in violation of 18 Pa.C.S. § 911. He was thereafter sentenced to serve a term of imprisonment for not less than eight (8) years nor more than twenty (20) years. Munson made no attempt to withdraw his plea of guilty, but he did file a motion for reconsideration of sentence. When this motion was denied, Munson filed this appeal in which he alleges that the sentence imposed was manifestly excessive. He also contends that his guilty plea counsel was constitutionally ineffective because: (1) counsel failed to file a motion to withdraw his plea of guilty; and (2) counsel continued to represent him despite the existence of actual conflicts of interest.

Appellant has complied with Pa.R.A.P. 2119(f) and Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987) by including within his brief a concise statement of the reasons relied upon for allowance of an appeal from the discretionary aspects of sentencing. His precise challenge to the sentence is stated as follows:

THE LOWER COURT MANIFESTLY ABUSED ITS DISCRETION IN IMPOSING A SENTENCE THAT EXCEEDED THE EXTREME END OF THE AGGRAVATED RANGE OF THE SENTENCING GUIDELINES BY OVER 500%; THAT FOCUSED SOLELY ON THE PERCEIVED SERIOUSNESS OF THE CRIME; AND THAT FAILED TO ADEQUATELY CONSIDER APPELLANT'S LACK OF ANY CRIMINAL HISTORY, THE EXPRESSION OF REMORSE AS PRESENTED BY THE GUILTY PLEA, AND THE LIKELIHOOD OF A SUCCESSFUL REHABILITATION ENGENDERED BY A SENTENCE MORE CONSISTENT WITH THE SENTENCING GUIDELINES.

Because we deem this a substantial challenge to the appropriateness of appellant's sentence, we will review the discretionary aspects of sentencing.

"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 that discretion." Commonwealth v. Anderson, 381 Pa.Super. 1, 16, 552 A.2d 1064, 1072 (1988). When the sentence imposed is outside the sentencing guidelines, the court must "provide a contemporaneous written statement of the reason or reasons for the deviation from the guidelines." 42 Pa.C.S. § 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 836, 838 (1987).

When imposing sentence, a court is required to consider "the particular circumstances of the offense and the character of the defendant." Commonwealth v. Frazier, 347 Pa.Super. 64, 67, 500 A.2d 158, 159 (1985). "It must be demonstrated that the court considered the statutory factors enunciated for determination of sentencing alternatives, and the sentencing guidelines." Commonwealth v. Hainsey, 379 Pa.Super. 376, 382, 550 A.2d 207, 209 (1988). Additionally, the court must impose a sentence which is "consistent with the protection of the public, the gravity of the offense as it relates to the impact on the life of the victim and the community, and the rehabilitative needs of the defendant." Commonwealth v. Frazier, supra. Where the sentencing judge had the benefit of a pre-sentence report, however, it will be presumed that he "was aware of relevant information regarding the defendant's character and weighed those considerations along with mitigating statutory factors." Commonwealth v. Devers, 519 Pa. 88, 101-102, 546 A.2d 12, 18 (1988). "Having been fully informed by the pre-sentence report, the sentencing court's discretion should not be disturbed." Id. at 102, 546 A.2d at 18.

A review of the record in the instant case discloses that the sentencing court had the benefit of and considered a pre-sentence report before imposing sentence upon appellant. Therefore, we must presume that the court was aware of and considered the relevant mitigating circumstances set forth therein. At the time of sentencing, the court further set forth its reasons for imposing a sentence outside the sentencing guideline ranges, stating as follows:

THE COURT: The lectures that come from this bench as to drug selling are all too frequent. Continually I see abusers coming before me selling drugs and others coming before me selling drugs who are mandated under the law one to two and three to six and are nowhere near the level that Mr. Munson was involved in. No matter what they were involved in as to the amounts involved in, it is clear to me that Mr. Munson was actually involved in large scale drug selling. I do not think that the guidelines are appropriate. I think that they are way too low under the circumstances. I believe they are way too low under the circumstances for one of the reasons Mr. Rosen mentioned, which is the type of organization that is, in fact, involved and for the amounts involved.

I do take into consideration Mr. Munson's plea of guilty as I have always taken into consideration and his admittance of guilt. However, I do believe that this is a situation that demands that I go above the aggravated range.

N.T. 9/20/91 at pp. 52-53.

After careful review, we are satisfied that the sentencing court did not abuse its discretion in the instant case. Although appellant's minimum sentence of eight years exceeded that recommended by the sentencing guidelines, ¹ the extensive nature of appellant's involvement in a large scale drug selling organization amply justified the sentence imposed. Indeed, the facts recited in support of appellant's guilty plea were that he personally was involved in sales of several kilograms of cocaine per week. Additionally, he was involved in at least one drug related shooting and an attempt to bribe a potential Commonwealth witness. His heavy involvement in a large, unlawful, drug trafficking enterprise warranted a sentence in excess of the guideline ranges. The sentencing court neither abused its discretion nor imposed a manifestly excessive sentence.

We next address appellant's contention that his guilty plea counsel was ineffective because he was burdened by several conflicts of interest. Specifically, appellant asserts that counsel had formerly represented, in prior, unrelated criminal cases, two potential Commonwealth witnesses and two of appellant's co-defendants. ² He contends that counsel's former representation of Commonwealth witnesses and co-defendants created actual conflicts of interest which rendered counsel's representation of appellant constitutionally ineffective.

In addressing claims of ineffective assistance of counsel based upon alleged conflicts of interest, we utilize the following approach:

"Because the law presumes that counsel is effective, the burden of establishing ineffectiveness rests with appellant." Commonwealth v. House, 371 Pa.Super. 23, 28, 537 A.2d 361, 363 (1988). See also: Commonwealth v. Floyd, 506 Pa. 85, 90, 484 A.2d 365, 367 (1984); Commonwealth v. McKendrick, 356 Pa.Super. 64, 71, 514 A.2d 144, 148 (1986). To meet this burden appellant must plead and prove that:

1) the issue underlying his claim of ineffectiveness is of arguable merit; 2) the course chosen by counsel had no reasonable basis designed to serve his interests; and 3) he suffered prejudice as a result of counsel's ineffectiveness. Commonwealth v. Pierce, 515 Pa. 153, [158-160], 527 A.2d 973, 975-76 (1987); Commonwealth v. Buehl, 510 Pa. 363, 378-79, 508 A.2d 1167, 1174-75 (1986); Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604-5 & n. 8, 235 A.2d 349, 352-53 & n. 8 (1967).

Commonwealth v. House, supra. See also: Commonwealth v. Davis, 518 Pa. 77, 83, 541 A.2d 315, 318 (1988); Commonwealth v. Harner, 377 Pa.Super. 229, 243, 546 A.2d 1241, 1247 (1988); Commonwealth v. Riggins, 374 Pa.Super. 243, 248-249, 542 A.2d 1004, 1007 (1988). When the claim of ineffective assistance of counsel is based upon an alleged conflict of interest, however, prejudice will be presumed where counsel is shown to have been burdened by an actual conflict of interest. See: Commonwealth v. Buehl, 510 Pa. 363, 379, 508 A.2d 1167, 1175 (1986), cert. denied, 488 U.S. 871, 109 S.Ct. 187, 102 L.Ed.2d 156 (1988); Commonwealth v. Smith, 380 Pa.Super. 619, 629-630, 552 A.2d 1053, 1059 (1988). To prevail in the instant case, it was necessary for appellant to "demonstrate[ ] that counsel 'actively represented conflicting interests' and 'that an actual conflict of interest adversely affected his lawyer's performance.' " Commonwealth v. Buehl, supra, quoting Cuyler v. Sullivan, 446 U.S. 335, 348, 350, 100 S.Ct. 1708, 1718-1719, 64 L.Ed.2d 333, 346-347 (1980). See also: Commonwealth v. Smith, supra; In re Saladin, 359 Pa.Super. 326, 331, 518 A.2d 1258, 1261 (1986). The showing of a mere possibility of a conflict of interest "is insufficient to impugn a criminal conviction." Cuyler v. Sullivan, supra [446 U.S.] at 350, 100 S.Ct. at 1719, 64 L.Ed.2d at 348.

Commonwealth v. McCloy, 393 Pa.Super. 217, 223-224, 574 A.2d 86, 89-90 (1990).

It is important to note that appellant's allegations concern past representations by counsel of witnesses and co-defendants in cases which were unrelated to the corrupt organization charge to which appellant entered his plea of guilty. Of such alleged conflicts of interest, it has been observed:

Of course, the absence of simultaneous representation is not determinative. In some circumstances, a defense lawyer's prior representation of a witness can give[ ] rise to an actual conflict of interest. See, e.g., United States v. Martinez, 630 F.2d 361, 362 (5th Cir.1980), cert. denied, 450 U.S. 922, 101 S.Ct. 1373, 67 L.Ed.2d 351 (1981); [Commonwealth v.] Porter, 805 F.2d at 939-41. [ (11th Cir.1986) ]...