Commonwealth v. Clinger

to hear him constituted an error of

law.

¶ 7 We find that the trial court commit-

ted an error law when entered an conducting

order without a full and mean-

ingful hearing where was afford- an opportunity testify

ed on his own Accordingly,

behalf. we vacate the Octo-

ber 2002 order and remand to the trial proper hearing pursu-

court to conduct a

ant to 23 Pa.C.S.A.

¶ 8 Order vacated. Case remanded. relinquished.

Jurisdiction Pennsylvania,

COMMONWEALTH

Appellee, CLINGER, Appellant.

Todd

Superior Pennsylvania. Court of 27, 2003.

Submitted Jan. Sept.

Filed sentence, re- the of and judgment

vacate proceedings. further mand this case for ar- Appellant and his brother were charged March and rested on arising out of a severe multiple offenses that was inflicted Michael beating 6, Following the Aucker on March 2001. taken victim was beating, unconscious sofa, home, and placed mobile on a to his Through intervention abandoned. friends, necessary the victim received treatment, and the beat- medical survived ing.

¶ Appellant ultimately charged1 homicide,2 attempt with criminal assault,3 assault,4 simple reck- aggravated person,5 another and lessly endangering conspiracy criminal to commit each of aforementioned offenses.6 proceeded and his brother 17, jury trial on December 2001. On to day trial the Commonwealth the first Prior part of its case-in-chief. presented Rude, Williamsport, appel- Kyle W. day of the second to commencement however, trial, lant. plead elected to appellant commit conspiracy to a guilty Hudock, Atty., T. Asst. Michael Dist. murder, an third-degree return for Com., Middleburg, appellee. rec- by the Commonwealth to agreement GRACI, range BEFORE: MUSMANNO and a sentence standard ommend JJ., McEWEN, and P.J.E. file writs sentencing guidelines, charges, prosequi remaining on the nolle McEWEN, BY

OPINION P.J.E.: agreements with to honor certain and family. Appellant, Clinger, appeals Todd J. other members hearing on judgment of sentence to serve At a held December written twenty years forty of from the trial received sentence by ap- colloquy completed signed and years imprisonment, imposed plea which was colloquy, oral judge following plea pellant, trial conducted an plea agreement. accepted crime of third terms of however, appellant sentencing, murder. to Prior degree We constrained 2701(a)(1). § Appellant’s 1. were also 4. 18 Pa.C.S. brother father charged to the with various offenses related assault. § 2705. 5. 18 Pa.C.S. 2501(a). 901(a), § § Pa.C.S. 18 Pa.C.S. 903(a)(1) 6. 18 Pa.C.S. 2702(a)(1). 18Pa.C.S.§ pro applied by

filed a se motion to withdraw his “the test to be the trial courts appointed and a justice.” New counsel was States fairness United (3d hearing on the withdrawal motion was held Stayton, F.2d Cir. [408 1969) on March 2002. The trial court denied “any If the trial court finds fair ]. motion, ruling appellant had failed reason,” just plea withdrawal of the in “compelling support to offer reasons” of freely permit- before sentence should be the motion. was thereafter sen- ted, prosecution unless the has been imprisonment tenced to a term of of from “substantially prejudiced.” twenty forty years, pay to and ordered to Forbes, v. at supra, restitution to the victim as well as the (other omitted). 299 A.2d at 271 citations prosecution. of costs This followed. Randolph, v. See: Commonwealth ¶ Appellant, in he the brief which has (reaf- (1998), Court, presents submitted to this the fol- firming Supreme Court’s adherence to lowing questions for our review: standards). the Forbes the trial court erred not Whether in Consequently, light of the Forbes appellant guilty allowing to withdraw his standard, first we must ascertain whether plea following was entered one which a there existed “fair reason” trial, day request of with his for with- appellant to his permitting withdraw being prior sentencing? drawal In his motion to withdraw his n Whether sentence was mani- plea, appellant specifically averred festly light in of the fact that excessive charges [sic] was “not guideline he was sentenced to the maxi- pled.” which In his brief he submitted to mum? argued this Court he the trial only question, We need address the first motion, denying court erred in and in his sentencing since the issue is rendered to, alia, support thereof he cites inter his moot our decision to vacate and re- “assertion of innocence.” The circum- mand. surrounding that assertion are evi- stances that oc- following exchange dent Pennsylvania Rule of Crimi during guilty plea proceeding: curred nal “[a]t Procedure 591 establishes that sentence, any imposition of time before the fact, you, THE Did COURT: discretion, may, permit, the court in its you pleading the offense to which defendant, direct, upon motion of the or criminal conspiracy guilty, sponte, plea sua the withdrawal of a degree? to commit murder the third guilty or nolo contendere and the substitu No, I that I didn’t. feel [APPELLANT]: guilty.” a Pa.R.Crim.P. tion of Okay. THE COURT: 591(A). ruling examine a "Whenwe Your [APPELLANT’S COUNSEL]: trial court on a motion withdraw Honor, if could have a few minutes guilty plea, we review both the exercise of speak my client. discretion, application as well the THE ahead. COURT: Go Rosario, e.g.: law. See Commonwealth v. In Your [APPELLANT’S COUNSEL]: 679 A.2d 756 Honor, the situa- I think we’ve clarified

watershed decision of Commonwealth client, Forbes, (1973), explained my As I’ve 299 A.2d 268 tion. where, under- as as he understands and as we Supreme our Court held that stand, here, everybody I think notes here presentence a defendant has filed intent, my— has a my the idea of client motion to withdraw a ¶8 ex- from this it is obvious However, I’ve told While as problem with. that, argues, him, degree, guilt the Commonwealth change in murder of the third as malice, po- and that ini- implied by from his ultimately can be retreated appellant well, if say even tentially jury could admitted innocence and tial assertion kill Mi- intend to Clinger Todd didn’t equally obvious culpability, Aucker, plan into a he entered chael appellant, the entire record review of brother, up Mi- Troy, to beat with his reflect opportunity to given an Aucker; beating was so and that chael acknowledge that at plea, refused there, that that there’s a malice vicious the men- possessed he time of the assault life, and disregard for human there’s a justify a conviction tal state that would therefore, justify that that that would third- to commit conspiracy the crime sentence. Moreover, be as shall murder. degree today is that my plea client’s here And that de- it is clear fully explained, more agreement yes, he— he did enter into an counsel, convincing appellant fense brother; to beat they agree his did with the law—a position, misstated abandon his Aucker; beating rough was Michael by the that was endorsed misstatement potentially that Mr. Aucker enough presiding accepted and prosecutor, it; yes, and that could have died judge. involved, that there was a certain malice implied that there was— it could be ¶ clear that in order 9 The law is disregard for regard— there was a the re entry of a sustain human life. “the must be satisfied that viewing court concerned Clinger I think what Todd is the defendant con acknowledged by facts impression that he by— leaving is offense,” that “the and prohibited stitute kill Aucker. So intended to Michael understanding of the had a full defendant page everybody’s think on the same consequences of nature and problem here. I think it’s voluntarily decided knowingly And I think that’s been clarification. v. Flu plea.” to enter the resolved. 213, A.2d Pa.Super. harty, 429 you understand all of THE COURT: Do omitted). (1993) (citations See: Comment that, Clinger? Mr. to Pa.R.Crim.P. Yes, sir. [APPELLANT]: explanation THE And is that COURT: plea of here entered a satisfactory of the Com- approach conspiracy of “criminal to the crime monwealth? degree.” in the third commit murder COUNSEL]: [COMMONWEALTH case, howev- facts of unique Under the is, Honor, and is consistent That Your er, compelled to the conclusion we are the case law. with commit under the law to impossible it was [your at- Knowing THE what COURT: commit murder conspiracy to the crime of and I think just explained, torney] has result, that, as a degree, third law, accurately you, he’s stated did to an of- pleaded guilty appellant actually fact, you the offense to which commit and, therefore, a exist that did not fense pleading guilty? did not occur. crime that Yes, sir. [APPELLANT]: is conspiracy (em- 11 The offense of pp. 14-16 at

N.T. December follows: Code as in the Crimes defined phasis supplied). person conspiracy conspiracy A is a conviction for with Since requires promote an intention to or facili- person persons another or crime, the crime promoting if with the intent of tate the commission of a crime facilitating object of must conspiracy that is the or its commission he: accomplished, or either be intended to be (1) agrees person other or such accomplished. present In the have been persons they or one or more case, degree of third mur- since the crime engage them in conduct which con- will accomplished, appellant could der attempt stitutes such crime or an or only to commit a be crime; solicitation to such or if ac- crime he intended that crime to be person agrees to aid such other or dictates, however, and complished. Logic persons in planning or commission of impos- recognized, this Court has attempt such crime or of an or solicita- sible for one to intend to commit an unin- tion to commit such crime. Spells, tentional act. Commonwealth v. 903(a) added). (emphasis Pa.C.S. Pa.Super. 461 n. 5 The offense of third degree (1992), dismissed, murder (1994) (“an is defined in the Crimes Code as follows: attempt A.2d 1078 degree or third murder would second seem All [referring other kinds of murder require proof that a defendant intended degree] murder of the first and second perpetrate killing— an unintended degree. shall be of the third murder impossible”). logically which is 2502(c). § 18 latter Pa.C.S. This definition ¶ Therefore, 13 factu- since there was no brightly by has been illuminated abundant support al basis which to the crime of law, including case the terse declaration murder, degree to commit third that degree “[t]hird this Court murder is a a crime appellant’s such is neither killing done with malice that could have been neither entered nor ac- intentional nor committed in the course Thus, cepted clearly under the law. there Tolbert, felony.” a Commonwealth v. 448 just existed a fair and reason to warrant 189, 1172, (1995), Pa.Super. 670 A.2d 1179 appellant’s plea. the withdrawal of denied, 617, appeal 548 Pa. 693 A.2d 588 (1997), denied, 891, 118 14 have that a fair cert. 522 U.S. S.Ct. Since we found (1997) 230,139 support appel (emphasis L.Ed.2d 162 add reason existed to ed). Thus, degree request withdrawing the essence of third lant’s plea, question murder which occurs as the we turn our attention to the homicide would have consequence unintended of a malicious act. of whether the Commonwealth prejudice” by v. 456 suffered “substantial the tri Yanoff, See: Commonwealth Pa.Su (1997), 222, 260, pre per. appeal grant 690 A.2d 264 al court’s of the defendant’s denied, 681, 735 sentence withdrawal of his 548 699 A.2d (malice Forbes, Principal supra. v. We are exists “where the acts mindful, question that gross deviation from the standard of rea as we consider this care, perceive appellate that such in its brief failing sonable the Commonwealth have actions create a substantial and un does not claim would been might bodily substantially prejudiced by grant justifiable risk of death or serious do we think that injury.”). motion. Nor See also: Commonwealth Kellam, 792, Ap valid. (Pa.Super.1998), such a claim would have been 719 A.2d denied, 714, pellant filed his motion to withdraw within 559 Pa. 740 A.2d 1145 (1999). plea. All of days entry ten of his witnesses, GRACI, BY key Commonwealth’s which DISSENTING OPINION victim, police per included the and rescue J.: sonnel, fiancée, and the re co-defendant’s respectfully 1 I dissent from the ma- mained accessible Commonwealth. jority’s determination Moreover, almost all of the Common pleaded guilty to a crime for which there

wealth’s evidence was memorialized and view, In my was no factual basis. preserved,7 and would have admissi been majority improperly based its decision ble, 5917,8 pursuant to 42 even if Pa.C.S. by Appellant on an issue not raised suddenly witness had become unavaila appeal. trial court or on ble.9 Therefore, facts, given these there no to support finding basis that the elementary 2 “It is of course is Commonwealth would have been substan or, preserved appellate sues not review tially prejudiced by granting appellant’s level, preserved even if at the trial e.g.: motion to withdraw. See Common by party appeal, raised to an will not be Middleton, 352, 357-358, wealth v. 504 Pa. appellate considered an court.” Com 1358, (1984); 473 A.2d 1360-1361 Com McKenna, 428, monwealth v. 407, McLaughlin, monwealth v. (1978). 174, A.2d also Pa.R.A.P. See (1976); 366 A.2d 238 Commonwealth v. 302(a) (“[ijssues not raised the lower Miller, (Pa.Super.2000); 748 A.2d court are waived and cannot raised for be David, Pa.Super. Commonwealth v. appeal.”). “Implicit time on first Compare: concept is another cardinal rule Cole, Pa.Super. Commonwealth v. state, viz., appellate jurisprudence in this (1989) (Commonwealth’s 564 A.2d 203 key appellate an is not to raise sua jurisdiction witness had left the after sponte perceives issues which it the guilty plea accepted). had been here, where, record as those issues are not ¶ We, therefore, 15 appel- conclude that McKenna, presented at the level.” lant’s motion to guilty plea withdraw his 383 A.2d at 180. See also Commonwealth granted.10 should have been Clair, (1974) v. A.2d 272 326 ¶ Judgment 16 of sentence vacated. (abrogating “basic and fundamental error” Case remanded. relinquished. Jurisdiction matters). in criminal doctrine GRACI, J., Although arising proceed- 17 3 in a civil Files a Dissenting Opinion. ing, principles the above are best illustrat- During hearing 7. the effectively subpoena, on motion to be served with a or if withdraw, found, counsel for the he cannot be or if he becomes in- competent testify any legally remaining characterized his to suffi- evidence as properly proven, fairly cient reason notes of his insignificant "three witnesses.” N.T. competent examination shall be evidence p. March 43. subsequent trial of the same crimi- nal issue.... provides 8. Section 5917 of the Judicial Code 42 Pa.C.S. 5917. part: in relevant Thus, any person Whenever present impediment has been examined as there is no witness, prosecuting appellant either for the Commonwealth or in a new trial. defense, any proceeding for the criminal record, conducted in or before a court of Although appellant argued that a has not present and the defendant has been and has to a nonexistent crime was void ab initios, opportunity

had an argument, to examine or cross- based on such an whether examine, dies, logic sounding process, if such witness afterwards or or in due would be jurisdiction worthy study. is out the so that he cannot of careful 798 Wiegand, to ad- Wiegand culpability.

ed and admitted Were we case, In that 256 this func- proper appellate here to this Court’s considered, sponte, sua the constitu- Court inquiry our end tion would here. tionality provisions of certain of the Com- Instead, majority proceeds the reversing divorce statute. In monwealth’s following the based make observations decision, Pennsylvania Supreme our the upon its own review of record: took remind opportunity Court this scope authority: of its Court case, how- unique Under the facts by sponte The decid- Superior Court sua ever, compelled we to the conclusion ing constitutional exceeded its issue impossible that it the law was under proper appellate deciding function of crime of to com- commit the presented to it. The court controversies degree, mit in the murder third thereby unnecessarily pro- disturbed that, result, appellant actually as a orderly judicial deeisonmaking. cesses of to an that did not pleaded guilty offense sponte de- Sua consideration of issues and, therefore, that did exist crime prives opportunity counsel of brief occur. argue the issues and the advocacy. the benefit of counsel’s majority Majority Opinion, at 795. The that “it is clear that defense McKenna, also concludes at A.2d Id. 257. See also at counsel, in convincing appellant to abandon (citing Wiegand approval); Com Simmons, position, monwealth v. misstated the law—a mis- Supe A.2d (finding prose- by statement that was endorsed by its consid rior Court exceeded bounds cutor, presiding accepted ering sua whether “defense of oth sponte judge.” Id. at 795. given ers” should have been where charge ¶ There nothing record before appellee only that trial court’s self- argued Appellant’s filed this Court or the brief on defective). defense that he ever raised suggest behalf ¶ Here, Appellant argues majority or the issues identified permitted should to withdraw have been the trial had to address court occasion

his for a number of reasons.11 Appellant have at- may those issues. reasons, more fully One these discussed conspir- tempted assert his innocence in the is claim opinion, Appellant’s lead murder, third-degree how- acy colloquy his oral he asserted during vastly arguing that is different from ever to the that formed his innocence not, fact, crime. that the was a offense negotiated plea: the basis of his Appellant coun- argued prior Nor has third-degree murder. by ad- sel rendered ineffective assistance Appellant, majority Brief of at 14. The him to non-existent vising plead guilty a upon Appellant’s own acknowledges, based for the simply inappropriate crime. It is prior testimony, ultimately retreat- a majority Appel- to raise such claim on ed from his initial assertion of innocence motion, Clinger in Commonwealth to incarcerate support 11. In of his withdrawal brother, (4) proximity confus- Clinger argued guilty plea physical was not to his that his regarding the ing by the trial court knowingly, intelligently and voluntari- statements entered (1) penalties Clinger’s burden possible ly due the influence of medications he to: plea, swings, he taking depression should choose to withdraw his and mood (5) (2) dis- pressure alleged the assertion innocence treatment for to secure favorable father, (3) by promise a the cussed text. his brother and lant’s by Appellant. my behalf and then conclude that coun- advanced In claims view, sel was ineffective for misstating Appellant the law.12 failed fair and to offer a just withdrawing reason for present why 7 The case illustrates (and majority has exceeded the bounds raising Court should refrain from issues appellate of this Court’s function offer- so, sponte. By doing sua and then render- ing Appel- its fair and on own reason ing very grounds, decision on those behalf). lant’s The trial court committed majority effectively usurped role Appel- no in denying abuse discretion disposition the trial court of this presentence lant’s motion to withdraw his Lord, matter. See Commonwealth v. plea. I affirm Accordingly, would 719 A.2d (noting judgment of sentence.14 importance opinion of trial process review). appellate The majority has Commonwealth, and, deprived also to a extent, Appellant, opportunity

lesser argue

to brief and the issues identified as

dispositive. Having neither the benefit advocacy, opin-

counsel’s nor a trial court issues,

ion addressing pertinent I fail majority opin- see how the can offer its

ion as a fair and reasoned decision.13 join majori- 8 Since am unable to

ty’s disposition, compelled I am to address Assuming Appellant arising plea-bargain- had raised an ineffec- of counsel claims from claim, precluded tive assistance we would be ing process eligible for review under the reviewing appeal. PCRA). such claim on direct Grant, (2002) ("[A]s rule, general peti- appeal, Appellant 14.In his second issue on tioner should wait to raise claims of ineffec- argues manifestly that his sentence was exces tive assistance of trial counsel until collateral sive that the trial court failed to consider review.”). troubling It is most that the ma- needs, his rehabilitative treated the offense as jority apparently willing to circumvent the survived, punished if the victim had not only recently deferral rule announced seeking to withdraw his sponte addressing prior Grant sua coun- appellant It is that an who well-settled performance. sel's aspects challenges discretionaiy of a sen tence must set forth in his brief a concise Though presently I would not review this upon for al statement of the reasons relied issue, recognize failing present- I to do so 2119(f). appeal. Appel lowance of Pa.R.A.P. ly Appellant would not leave without re- 2119(f) to include a Rule state lant has failed Appellant course. In the event wished ment and the Commonwealth has noted its challenge either the lawfulness of his " may objection to that omission. Since 'we plea, respect or counsel's assistance with claims' where the [the] not reach merits thereto, pursue he could such claims in a objected] to Commonwealth has the omission timely petition post-conviction collateral ” statement,’ 2119(f)] Common [Rule 9543(a)(2)(h) (per- relief. See 42 Pa.C.S.A. Farmer, (Pa.Su wealth v. 758 A.2d taining to ineffective assistance of counsel denied, per.2000), appeal claims), (iii) (relating unlawfully induced (2001) (citation omitted), would A.2d 1279 guilty pleas). See also Commonwealth ex. rel. find that has waived his discretion Goldberg, Dadario v. (2001) (holding ary sentencing that ineffective claims. assistance

Case Details

Case Name: Commonwealth v. Clinger

Court Name: Superior Court of Pennsylvania

Date Published: Sep 29, 2003

Citation: 833 A.2d 792

Court Abbreviation: Pa. Super. Ct.