J-S78023-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

MICHAEL JASON STEVICK

                            Appellant                   No. 231 WDA 2016


                 Appeal from the PCRA Order February 4, 2016
               In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0004776-2012


BEFORE: BENDER, P.J.E., OTT, J., and FITZGERALD, J.*

MEMORANDUM BY OTT, J.:                             FILED FEBRUARY 13, 2017

        Michael Jason Stevick appeals from the order entered on February 4,

2016, in the Court of Common Pleas of Allegheny County, denying him relief

on his petition filed pursuant to the Post Conviction Relief Act (PCRA), 42

Pa.C.S. § 9541 et seq.        In this timely appeal, Stevick raises three issues.

Specifically, the PCRA Court erred in determining 1) trial counsel’s failure to

obtain expert review of the accident did not unlawfully induce Stevick to

plead guilty; 2) trial counsel did not provide false promises and bad advice

which rendered the guilty plea unknowing, unintelligent and involuntary; and

3) trial counsel did not refuse to file a motion to withdraw guilty plea prior to



____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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sentencing.   After a thorough review of the submissions by the parties,

certified record and relevant law, we affirm.

      The procedural history of the underlying matter, as related by the

PCRA court is:

      On February 25, 2014, [Stevick] entered a guilty plea to one
      count of aggravated assault by vehicle while DUI, one amended
      count of DUI (0.10% - 0.16% third offense), two counts of DUI,
      one count of recklessly endangering another person, and
      summary counts of reckless driving and driving at safe speed.

                                      ...

      Thus, [Stevick] was sentenced to an aggregate sentence of
      eleven and one[-]half to twenty[-]three months[’] incarceration
      followed by five years[’] probation. On December 30, 2014,
      [Stevick] filed a motion for house arrest, which was heard on
      April 6. 2015, and denied. [Stevick] reported to begin his
      sentence on May 21, 2015.

      On June 30, 2015, [Stevick] filed a [counseled] PCRA petition.
      The Commonwealth filed its Answer to [Stevick’s] PCRA petition
      on July 14, 2015. The Trial Court held an evidentiary hearing on
      October 26, 2015. On November 13, 2015, [Stevick] filed a
      Brief in Support of PCRA Petition. On November 18, 2015, the
      Commonwealth filed its Answer to [Stevick’s] Brief, and on
      December 11, 2015, [Stevick] filed a Reply to the
      Commonwealth’s Answer.

      On January 7, 2016, the Trial Court filed its Notice of Intent to
      Dismiss [Stevick’s] PCRA Petition.         On January 27, 2016,
      [Stevick] filed a Reply to the Trial Court’s Notice, and also filed a
      motion for parole or house arrest. The Trial Court denied
      [Stevick’s] motion for parole that same day. On February 4,
      2016, the Trial Court dismissed [Stevick’s] PCRA Petition.

Pa.R.A.P. 1925(a) Opinion, at 1-4.




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     We glean the facts supporting the charges from the Pa.R.A.P. 1925(a)

opinion of the PCRA court:

     If this case were to go to trial, the Commonwealth would call
     Trooper Maltoni of the Pennsylvania State Police, among other
     officers who would testify on March 26, 2011 he responded to a
     two vehicle accident on I-376 in Churchill in which [Stevick’s]
     vehicle struck another vehicle causing it to up [end] and skip on
     its roof. The victim, Bennie Brown, suffered numerous injuries,
     including broken ribs and vertebrae, numerous internal damage.
     He was hospitalized approximately 16 weeks requiring numerous
     surgical interventions. [Stevick] appeared to be intoxicated at
     the scene. He was given an intoxilyzer test which was over .15.
     However, because the particular intoxilyzer was not calibrated
     over a .15, the Commonwealth would not be able to give an
     accurate BAC to a reasonable degree of scientific certainty.
     Additionally, [Stevick] does have two prior ARD adjudications,
     one from March of 2002, and one from September of 2002.

PCRA Court Opinion, 6/23/2016, at 5-6.

     Our standard of review for the denial of a PCRA petition is well-settled.

        The standard of review for an order denying post-
        conviction relief is limited to whether the record supports
        the PCRA court's determination, and whether that decision
        is free of legal error. The PCRA court's findings will not be
        disturbed unless there is no support for the findings in the
        certified record.
     Commonwealth v. Walters, 135 A.3d 589, 591 (Pa. Super.
     2016). In order to be eligible for PCRA relief, the petitioner must
     prove by a preponderance of the evidence that his conviction or
     sentence resulted from one or more of the enumerated
     circumstances found in Section 9543(a)(2), which includes the
     ineffective assistance of counsel. 42 Pa.C.S. § 9543(a)(2)(i).

     “It is well-established that counsel is presumed effective, and to
     rebut that presumption, the PCRA petitioner must demonstrate
     that counsel's performance was deficient and that such
     deficiency prejudiced him.” Commonwealth v. Kohler, 614 Pa.
     159, 36 A.3d 121, 132 (2012) (citing Strickland v.
     Washington, 466 U.S. 668, 687-91, 104 S.Ct. 2052, 80 L.Ed.2d

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     674 (1984)). To prevail on an ineffectiveness claim, the
     petitioner has the burden to prove that “(1) the underlying
     substantive claim has arguable merit; (2) counsel whose
     effectiveness is being challenged did not have a reasonable basis
     for his or her actions or failure to act; and (3) the petitioner
     suffered prejudice as a result of counsel's deficient
     performance.” Commonwealth v. Sneed, 616 Pa. 1, 18, 45
     A.3d 1096, 1106 (2012) (quoting Commonwealth v. Pierce,
     567 Pa. 186, 203, 786 A.2d 203, 213 (2001)). “A petitioner
     establishes prejudice when he demonstrates “that there is a
     reasonable probability that, but for counsel's unprofessional
     errors, the result of the proceeding would have been different.”
     Commonwealth v. Johnson, 600 Pa. 329, 345-46, 966 A.2d
     523, 532-33 (2009) (quoting Strickland, 466 U.S. at 694, 104
     S.Ct. 2052, 80 L.Ed.2d 674). The failure to satisfy any one of the
     three prongs will cause the entire claim to fail. Sneed, 616 Pa.
     at 18, 45 A.3d at 1106 (citation omitted).

Commonwealth v. Faurelus, 147 A.3d 905, 911 (Pa. Super. 2016).

     Stevick’s initial claim is that plea counsel was ineffective for failing to

hire an expert to contradict the Commonwealth’s version of the events

leading to the accident in question. Both plea counsel and Stevick’s proposed

expert, Ronald Baade, testified at the PCRA hearing. After considering the

relevant testimony, the PCRA court concluded:


        [Stevick] established that expert Ronald Baade was an
        expert witness who existed, was available, and would have
        been able to testify on behalf of the defense. However,
        given Attorney Thomassey’s [trial counsel] credible
        testimony that [Stevick] adamantly claimed to have not
        been driving when the incident occurred, an expert witness
        would not have helped [Stevick’s] case. Further, the
        report that Baade authored for [Stevick’s] PCRA [petition]
        does not demonstrate that [Stevick] was prejudiced by
        counsel’s failure to secure this witness prior to [Stevick’s]
        guilty plea. Further, Attorney Thomassey testified that he
        spoke with [Stevick] about hiring an expert witness, and
        they agreed not to hire an expert. [Stevick’s] ineffective
        assistance of counsel claim fails because [Stevick] was not

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         prejudiced by counsel’s reasonable strategy given the
         defense [Stevick] and counsel were pursuing, namely, that
         [Stevick] was not driving at the time of the incident, and
         that [Stevick] agreed that an expert was unnecessary.
         [Stevick] is not entitled to relief on this claim.

      Notice of Intent to Dismiss, January 7, 2016, pp. 3-4.

PCRA Court Opinion, 6/23/2016 at 7.

      Our review finds the certified record supports the PCRA court’s

conclusions.    Attorney Thomassey admitted that he knew the police

investigation of the accident was less than thorough, but that the expert

report merely echoed that conclusion without providing any actually

exculpatory evidence.     Regarding the expert report, Attorney Thomassey

testified as follows:

      A: Because I read your expert’s report. It said nothing. All it
      says is that the DA or the police didn’t do a good investigation.
      And that’s a given, that’s a given. The problem with hiring an
      expert, even if the investigation had been different, is that once
      you get the report back, maybe you don’t like it, but then you’ve
      got to turn it over to the DA. I would have done – and on this
      set of facts, I would have never hired an expert. It made no
      sense to me, none, and he agreed with that.

      Q: He agreed not to hire an expert?

      A: I talked to him about spending money for an expert. I told
      him this expert report is not going to help us.

N.T. PCRA Hearing, 10/26/2015, at 18-19.

      Additionally, he testified:

      Q: Okay. And it [the expert report] indicates that there was an
      inadequate investigation of the crash scene; correct?

      A: That’s basically what it says.


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       Q: Okay. And that it also says that as to matters that are
       relevant to a crash investigation, such as speed, such as event
       data recorders, if any, that evidence was not produced by the
       Commonwealth’s investigation; correct?

       A: Correct.

       Q: And would you agree that such opinion testimony could have
       created reasonable doubt for the fact finder as to the cause of
       the accident?

       A: In this case, no.

       Q: Why not?

       A: To restate what I said a few minutes ago, his blood alcohol
       level was 2½ times the legal limit. He hit this car in the rear
       with his car causing the car to flip over onto its roof. Then he
       stays at the accident scene, tells the police I wasn’t driving the
       car, the dog sniffs the car, sniffs him, says he is driving the car.
       The causation in that case is real simple in my legal opinion. He
       was drunk, he hit the car, that caused the accident which caused
       the injuries to this elderly man. That was just my opinion.

       Now, sometimes I’m wrong. But I gave him the best advice I
       could. I said, Take the plea or you’re going to state prison for a
       year.

Id. at 19-21.

       On cross-examination, Attorney Thomassey testified:

       Q: These factors that weigh against you, all the discovery you
       have, the pictures [of the accident scene1] and your experience,
       are these things that weigh against the type of defense that Mr.
       Stevick wanted to pursue?

       A: Absolutely. I mean, you have to be practical about cases. I
       mean, you show that photograph [the victim’s car on its roof] to
____________________________________________


1
  None of the photographs of the accident scene are found in the certified
record.



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       a jury, and they’ll be told that Mr. Stevick’s vehicle hit that
       vehicle, and you want to say it didn’t cause the accident? I
       mean –

Id. at 31.

       The PCRA court accepted Attorney Thomassey’s practical, experience

based testimony regarding the efficacy of the expert’s report, and that

testimony, coupled with the facts that Stevick denied driving the vehicle

until shortly before the guilty plea and that Stevick agreed that it would be

wasteful to hire an expert, led to the determination Stevick suffered no

prejudice from the lack of such a report prior to the guilty plea. We discern

no error therein.

       Stevick’s next claim is that his guilty plea was induced by plea

counsel’s ineffective assistance, specifically, by providing bad advice and

false promises.     This claim has a number of elements, including the prior

claim that trial counsel was ineffective for failing to hire an expert, thereby

leaving counsel unprepared to go to trial. Additionally, Stevick argues:

       On the day of trial, [Stevick] learned for the first time that the
       accident [had caused] serious injuries. Mr. Thomassey told
       [Stevick] in no uncertain terms: “[t]ake the plea or you’re going
       to state prison for a year.” Indeed, [Stevick] was faced with a
       Hobson’s choice[2] either (1) plead guilty, remain free on bond,
       and eventually receive a 90-day sentence; or, [(2)] go to trial
       with unprepared counsel and no expert, get convicted as Mr.
       Thomassey      assured,    and     go   to    jail    immediately.
____________________________________________


2
   A Hobson’s choice is, “An apparently free choice where there is no real
alternative; often used to refer to a situation presenting a choice among
unpleasant alternatives.” Webber, Elizabeth, Feinsilber, Mike, Merriam-
Webster’s Dictionary of Allusions, Merriam-Webster, 1999.



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      Understandably, [Stevick] was “scared” and believed he had no
      other option, so he went along with Mr. Thomassey and entered
      an unknowing, unintelligent and involuntary guilty plea.

Appellant’s Brief at 11.

      The trial court’s reasoning dispels Stevick’s contention.


         This claim fails because [Stevick] has failed to establish
         that his plea was unlawfully induced by the ineffective
         assistance of counsel. At [Stevick’s] evidentiary hearing,
         Attorney Thomassey testified that he wrote 21 letters to
         [Stevick] and met with him approximately seven times
         before [Stevick’s] plea. The Trial Court finds the testimony
         of Attorney Thomassey credible, and finds that Attorney
         Thomassey did not threaten or unlawfully induce [Stevick]
         to plead guilty.     Additionally, [Stevick] has failed to
         establish that his guilty plea was the result of manifest
         injustice. Rather, the record demonstrates that [Stevick]
         completed a written and oral colloquy, wherein he stated
         that he had not been threatened or promised anything to
         force him to plead guilty, and that he was pleading guilty
         because he was, in fact guilty. The record fully supports
         the entry of a knowing, intelligent, and voluntary guilty
         plea.

      Notice of Intent to Dismiss, January 7, 2016, p. 4.

PCRA Court Opinion at 8-9.

      Our review of the certified record, including the notes of testimony for

the guilty plea, sentencing and PCRA evidentiary hearing, as well as the

written guilty plea form, confirms the PCRA court’s determination. From the

guilty plea in open court through sentencing, Stevick never expressed any

concerns regarding his representation by counsel. Nor did he ever dispute




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being the factual cause of the accident or injuries to the victim. 3 Although

Attorney Thomassey did testify at the PCRA hearing that he anticipated the

imposition of a 90-day sentence,4 the record clearly demonstrates that no

promises were made to Stevick regarding his sentence.          As the certified

record supports the PCRA court’s determination, see Commonwealth v.

Patterson, 690 A.2d 250 (Pa. Super. 1997) (plea not unlawfully induced

where record clearly demonstrates defendant understood sentence was to be

determined by the judge, there was no promise of specific sentence and

defendant took part in a thorough written and oral guilty plea colloquy),

Stevick is not entitled to relief on this claim.

       In his final argument, Stevick claims plea counsel was ineffective for

failing to file a motion to withdraw his guilty plea after being requested to do

so. The PCRA court made a credibility determination that defeats that claim.


          At [Stevick’s] evidentiary hearing, Attorney Thomassey
          testified that he advised [Stevick] against withdrawing his
          plea. [Stevick] decided not to withdraw the plea prior to
          sentencing based on counsel’s advice, and did not ask
          Attorney Thomassey to withdraw his plea after he was
____________________________________________


3
  The guilty plea colloquy form demonstrates Stevick had no concerns or
questions regarding the evidence supporting the charges against him. See
Guilty Plea Colloquy Form.
4
  See N.T. PCRA Hearing, 10/26/2015, at 24-25. It is undisputed that
Attorney Thomassey’s belief that Stevick would receive a 90-day sentence
was ultimately incorrect. However, this was clearly not a promise and
Stevick has presented no evidence nor compelling argument that Attorney
Thomassey’s belief was legally unreasonable.



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           sentenced. The Trial Court finds the testimony of Attorney
           Thomassey credible, and finds that he did not refuse to file
           a motion to withdraw [Stevick’s] plea, but rather provided
           legal advice advising against withdrawing the plea, and
           [Stevick] decided not to withdraw his plea.

        Notice of Intent to Dismiss, January 7, 2016, [p. 4].

PCRA Court Opinion, at 10.

        The notes of testimony from the PCRA evidentiary hearing, held on

October     26,   2015,     provide     ample      support   for   the   PCRA   court’s

determination. We will not quote all the instances of Attorney Thomassey’s

testimony regarding this point, however, we highlight these portions of his

testimony:

        Q: Okay. And you told him, am I correct, that he would have to
        hire another attorney in order to withdraw his guilty plea?

        A: No, I didn’t tell him that. I told him if he wanted to withdraw
        his guilty plea, he could. I told him that would be a mistake. I
        wrote him a letter April 24th, 2014[5] and I said this to him:
        “Dear Michael, thank you for calling me the other day. If you
        are going to retain new counsel to withdraw your guilty plea, you
        should do it sooner rather than later. The judge will grant the
        motion to withdraw your plea; however, you should keep in mind
        that we had the case reduced to a .15 blood alcohol level which
        took your mandatory minimum from a year down to 90 days. I
        don’t know if the district attorney will do that again.

N.T. PCRA Hearing, 10/26/2015, at 23-24.

        A: No, he didn’t ask me to withdraw the plea. He told me he
        had gone to talk with Chuck Porter and I think he mentioned
        somebody else. And I told him that’s fine. But I also – I told him
        a hundred times it was a mistake.

____________________________________________


5
    Stevick was sentenced on July 16, 2014.



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      Q: Well, whether it was a mistake or not, he had the right to
      withdraw his plea[.]

      A: Well, sure.

      Q: [C]orrect?

      A: I told him if he wants to do it before sentencing, do it now
      because the judge will grant it, meaning before sentencing, I’m
      sorry.

      Q: Okay. He asked you to withdraw his plea; correct?

      A: No, he didn’t. He said – I told him, if you want to withdraw
      the plea, let me know. Now when we came to sentencing, he
      could have withdrawn it, but he decided not to.

      Q: Did you have a conversation with him –

      A: Yes.

      Q: - at the time of sentencing?

      A: Yes, I said, Do you want to go through with this sentencing?
      You’re probably going to get 90 days in a half-way house and
      you can work and keep your job, or you can withdraw your plea
      and we go back to square one.

Id. at 25-26.

      Because the PCRA court’s finding that Attorney Thomassey did not

refuse to file a motion to withdraw Stevick’s guilty plea is supported by the

record, we must affirm that finding. See Commonwealth v. Johnson, 139

A.3d 1257, 1272 (Pa. 2016) (reviewing court is bound by PCRA court

credibility   determinations   where    there   is   record   support   for   them).

Accordingly, Stevick is not entitled to relief on this claim.

      The PCRA court determined Stevick’s guilty plea was not the product

of the ineffective assistance of counsel and that plea counsel did not refuse

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to file a motion to withdraw Stevick’s guilty plea. These determinations are

supported by the certified record and are free of legal error. In light of the

foregoing, we are compelled to affirm the order denying Stevick relief

pursuant to his PCRA petition.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/13/2017




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