Commonwealth  v. Young

• Decision Date: 30 December 2011
• Citation: 35 A.3d 54,2011 PA Super 277
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Richard Clover YOUNG, Appellant.
• Court: Pennsylvania Superior Court

2011 PA Super 277

35 A.3d 54

COMMONWEALTH of Pennsylvania, Appellee

v.Richard Clover YOUNG, Appellant.

Superior Court of Pennsylvania.

Submitted Sept. 12, 2011.Filed Dec. 30, 2011.

David I. Lindsay, Lock Haven, for appellant.

Michael F. Salisbury, Assistant District Attorney, Lock Haven, for Commonwealth, appellee.

BEFORE: DONOHUE, LAZARUS, and FITZGERALD^*, JJ.

OPINION BY LAZARUS, J.:

Richard Clover Young appeals from the order of the Court of Common Pleas of Clinton County dismissing his petition filed under the Post Conviction Relief Act (“PCRA”).¹ After careful review, we affirm in part and reverse in part.

On January 28, 2008, Young was charged by criminal complaint with one count each of access device fraud,² theft by unlawful taking,³ and receiving stolen property ⁴ after he allegedly stole an ATM card and used it to withdraw money at two separate banks.

Young was tried by a jury on September 4, 2008. The jury was only able to reach a verdict on one of the three charges and was deadlocked with respect to the remaining two. When the trial judge asked the jury to identify the count on which the jury was able to reach a verdict or retain the corresponding verdict slip, the foreperson responded: “Well, I don't have the paper in front of me. So, it's the one in the middle, Theft—I think the one that says Theft—Theft by Unlawful Taking.” Transcript of Trial Court Colloquy, 3/3/2009, at 2. Because the jury had reached a stalemate on the remaining two charges, the court declared a mistrial. The court did not record the verdict, and trial counsel did not request that the court do so. Further, the verdict slip does not appear in the record and the court never determined whether the jury reached a verdict of guilty or not guilty. The court rescheduled jury selection for September 12, 2008.

On September 12, 2008, the Commonwealth filed a motion to amend the information against Young to replace count 2 of the complaint, theft by unlawful taking, with an additional count of access device fraud, which the court granted on September 23, 2008.

A second jury trial was held on September 25, 2008 and Young was convicted of one count of receiving stolen property and two counts of access device fraud. The court sentenced Young to an aggregate term of 5 to 10 years' incarceration for the two counts of access device fraud on November 17, 2008.⁵

Young filed a timely appeal to this Court arguing that the second trial was barred by double jeopardy. This Court, in a memorandum decision dated March 9, 2010, determined that because Young failed to file a motion to dismiss his charges on the basis of double jeopardy prior to the second trial and because trial counsel agreed to the declaration of a mistrial, Young had waived his double jeopardy claim. See Commonwealth v. Young, 996 A.2d 560 (Pa.Super.2010) (unpublished memorandum). This Court did not address the merits of Young's double jeopardy claim.

On August 9, 2010, Young filed a pro se PCRA petition. The PCRA court appointed counsel, who filed an amended PCRA petition on October 22, 2010. Both petitions alleged that trial counsel was ineffective for failing to object to the declaration of a mistrial at Young's first trial and for failing to object to the second trial as a violation of the constitutional protection against double jeopardy.

On January 31, 2011, the PCRA court denied Young all relief sought in his PCRA petition, but did resentence Young to 32 months' to 10 years' incarceration after all parties agreed that the original calculation of Young's prior record score was incorrect at the time of his November 17, 2008 sentencing. Young filed a timely notice of appeal and complied with the court's order to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).

Young raises the following issue for our review:

DID THE DEFENDANT'S TRIAL COUNSEL PROVIDE INEFFECTIVE ASSISTANCE TO THE DEFENDANT BY FAILING TO CAUSE THE VERDICT TO BE RECORDED AT DEFENDANT'S FIRST TRIAL IN THIS MATTER, FAILING TO OBJECT TO THE DECLARATION OF A MISTRIAL AND FAILING TO FILE A MOTION TO DISMISS CHARGES ON THE BASIS OF DOUBLE JEOPARDY PRIOR TO DEFENDANT'S SECOND TRIAL IN THIS MATTER?

Brief of Appellant, at 4.⁶

Young argues that his second trial was a violation of the constitutional protection against double jeopardy because it was possible that the jury in the first trial reached a verdict of not guilty on the theft charge or, alternatively, that the jury did not reach a verdict on theft at all, but rather reached a verdict on receiving stolen property or access device fraud. In support of his arguments, Young points to the fact that the jury foreperson did not have his notes in front of him when asked on which count the jury reached a verdict, that the foreperson hesitated to say theft and that it is impossible to verify the count on which the jury reached a verdict because the trial court did not record the verdict or preserve the verdict slip in the certified record.

To be eligible for relief under the PCRA for ineffective assistance of counsel, Young must plead and prove that trial counsel's failure to raise the double jeopardy claim “so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place.” 42 Pa.C.S.A. § 9543(2)(ii). “In evaluating claims of ineffective assistance of counsel, we presume that counsel is effective.” Commonwealth v. Rolan, 964 A.2d 398, 406 (Pa.Super.2008) (quotation omitted). To overcome the presumption of effectiveness, Young must demonstrate: (1) the underlying claim is of arguable merit; (2) that counsel had no reasonable strategic basis for his inaction; and (3) but for the errors and omissions of counsel, there is a reasonable probability that the outcome of the proceedings would have been different. Commonwealth v. Anderson, 995 A.2d 1184, 1191–92 (Pa.Super.2010) (internal quotations omitted).

First, we must establish whether Young has raised a claim of arguable merit. The Fifth Amendment to the United States Constitution and Article I, § 10 of the Pennsylvania Constitution provide that no person shall, for the same offense, “be twice put in jeopardy of life or limb.” Pa. Const. art. I, § 10; U.S. Const. amend. V. “The constitutional prohibition against ‘double jeopardy’ was designed to protect an individual from being subjected to the hazards of trial and possible conviction more than once for an alleged offense [.]” Commonwealth v. Spotz, 18 A.3d 244, 261 (Pa.2011) (quoting United States v. DiFrancesco, 449 U.S. 117, 127, 101 S.Ct. 426, 66 L.Ed.2d 328 (1980)).

The Double Jeopardy Clause “protects against a second prosecution for the same offense after an acquittal, a second prosecution for the same offense after a conviction and multiple punishments for the same offense.” Commonwealth v. McCord, 700 A.2d 938, 941 (Pa.Super.1997). However, the constitutional prohibition against double jeopardy does not apply unless jeopardy attaches. See Commonwealth v. Ortega, 995 A.2d 879, 887 (Pa.Super.2010). In Pennsylvania, jeopardy attaches when a defendant stands before a tribunal where guilt or innocence will be determined. Id. In a criminal jury trial, this occurs when the jury is sworn. Id.

Although jeopardy attaches, and the constitutional protection against double jeopardy applies, when a jury is sworn, see id., our courts have held that the protection against double jeopardy does not apply when the trial court grants a proper mistrial upon motion of defense counsel, or by manifest necessity. See Commonwealth v. Walker, 954 A.2d 1249, 1254 (Pa.Super.2008). This rule has been codified in Pa.R.Crim.P. 605, which provides, in relevant part:

Rule 605. Mistrial

* * *

(B) When an event prejudicial to the defendant occurs during trial only the defendant may move for a mistrial; the motion shall be made when the event is disclosed. Otherwise, the trial judge may declare a mistrial only for reasons of manifest necessity.

Pa.R.Crim.P. 605 (emphasis added).

“The determination by a trial court to declare a mistrial after jeopardy has attached is not one to be lightly undertaken, since the defendant has a substantial interest in having his fate determined by the jury first impaneled.” Walker, supra at 1254. “A failure of the lower court to consider less drastic alternatives before declaring a mistrial creates doubt about the exercise of the court's discretion and may bar re-prosecution because of double jeopardy.” McCord, supra at 943.

Young did not request a mistrial in the instant case. Rather, the trial judge stated that he was “inclined to declare a mistrial and send the jury home,” and Young's trial counsel did not object. N.T. Trial Court Colloquy, 3/3/2009, at 3. Mere silence by a defendant or lack of a specific objection does not amount to a waiver of the defendant's constitutional protection from double jeopardy. McCord, supra at 942. Because the trial court declared a mistrial, rather than granting a motion for a mistrial by Young, we must determine whether “manifest necessity” existed to declare a mistrial on each of the counts. See id.; Pa.R.Crim.P. 605(B).

There is no established test for determining the existence of a manifest necessity. McCord, supra at 942. “It is, however, recognized that a genuine inability of a jury to agree constitutes a ‘manifest necessity’ to declare a mistrial over a defendant's objection without offending the defendant's Fifth Amendment rights.” Commonwealth v. Monte, 459 Pa. 495, 329 A.2d 836, 840 (1974). A genuine inability of a jury to agree upon a verdict occurs if it appears to the trial court that there is no reasonable probability of agreement.⁷ Id.

Here, the trial court did have a manifest necessity to declare a mistrial on the charge of access device fraud and receiving stolen property. ⁸ The jury had indicated there was a stalemate in the deliberations regarding these charges, and when asked by the trial judge if further...