J-S34029-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA


                       v.

HEATHER LYNN HESS

                            Appellant                No. 3199 EDA 2016


            Appeal from the PCRA Order Dated September 19, 2016
              In the Court of Common Pleas of Delaware County
             Criminal Division at No(s): CP-23-CR-0000551-2012

BEFORE: BOWES, J., SOLANO, J., and PLATT, J.*

MEMORANDUM BY SOLANO, J.:                           FILED AUGUST 16, 2017

        Appellant, Heather Lynn Hess, appeals from the order denying her

petition filed under the Post–Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§

9541–9546. We affirm.

        On January 11, 2013, a jury convicted Appellant of third-degree

murder, aggravated assault, involuntary manslaughter, and endangering the

welfare of a child. On March 19, 2013, the trial court sentenced Appellant to

10 to 20 years in prison. Appellant filed a direct appeal, and on March 4,

2014, this Court affirmed her judgment of sentence.        Commonwealth v.

Hess, 100 A.3d 294 (Pa. Super. 2004) (unpublished memorandum).



____________________________________________
*
    Retired Senior Judge assigned to the Superior Court.
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Appellant did not petition the Pennsylvania Supreme Court for allowance of

appeal.

       On June 27, 2014, Appellant filed the underlying PCRA petition pro se.1

The PCRA court appointed counsel on September 18, 2014. Counsel filed an

amended petition on March 22, 2016. On May 13, 2016, the Commonwealth

filed an answer.2 The PCRA court convened a hearing on August 17, 2016.

On September 19, 2016, it entered an order denying Appellant’s petition.

Appellant filed this timely appeal, in which she presents one issue:

       Whether the PCRA Court erred in denying Appellant’s PCRA
       petition where the record clearly showed that counsel was
       ineffective for failing to communicate [plea] offers of 9 to 23
       months and 8 to 10 years to Appellant, where Appellant would
       have agreed to the offers if they had been communicated, and
       Appellant was prejudiced by counsel’s ineffectiveness?

Appellant’s Brief at 4.

       Appellant seeks post-conviction relief on the basis that trial counsel

was ineffective for failing to properly communicate plea offers from the

Commonwealth. Appellant claims “there were offers . . . which trial counsel
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1
   Appellant’s petition was timely because it was filed within one year after
her sentence became final. See 42 Pa.C.S. § 9545(b)(1). Appellant’s
sentence became final on April 3, 2014, when the time for filing a petition
for allowance of appeal to the Pennsylvania Supreme Court expired. See
Pa.R.A.P. 1113(a) (“a petition for allowance of appeal shall be filed with the
Prothonotary of the Supreme Court within 30 days after the entry of the
order of the Superior Court”). Therefore, Appellant had until April 3, 2015 to
file a timely PCRA petition.
2
   Although the docket entries show the Commonwealth filed an “Answer in
Opposition to Amended Post-Conviction Relief Act Petition” on May 13, 2016,
it is absent from the certified record.


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either failed to relay to Appellant or failed to properly advise Appellant[.]”

Appellant’s Brief at 7.   Appellant contends, “[i]f she had been properly

advised regarding these plea offers, she would have accepted these offers,

which offers were less severe than the sentence she received.” Id.

      Preliminarily, we note our standard of review:

      We review an order dismissing a petition under the PCRA in the
      light most favorable to the prevailing party at the PCRA level.
      This review is limited to the findings of the PCRA court and the
      evidence of record. We will not disturb a PCRA court’s ruling if it
      is supported by evidence of record and is free of legal error.
      This Court may affirm a PCRA court’s decision on any grounds if
      the record supports it. We grant great deference to the factual
      findings of the PCRA court and will not disturb those findings
      unless they have no support in the record. However, we afford
      no such deference to its legal conclusions. Further, where the
      petitioner raises questions of law, our standard of review is de
      novo and our scope of review is plenary.

Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (citations

omitted).

      The law presumes trial counsel has rendered effective assistance.

Commonwealth v. Rivera, 10 A.3d 1276, 1279 (Pa. Super. 2010).                The

burden of demonstrating ineffectiveness rests on the petitioner.       Id.    To

satisfy this burden, the petitioner must plead and prove by a preponderance

of the evidence that: “(1) his underlying claim is of arguable merit; (2) the

particular course of conduct pursued by counsel did not have some

reasonable basis designed to effectuate his interests; and (3) but for

counsel’s ineffectiveness, there is a reasonable probability that the outcome

of the challenged proceedings would have been different.” Commonwealth

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v. Fulton, 830 A.2d 567, 572 (Pa. 2003). Failure to satisfy any prong of

this test will result in rejection of the petitioner’s ineffective assistance of

counsel claim. Commonwealth v. Jones, 811 A.2d 994, 1002 (Pa. 2002).

       At the PCRA hearing, Appellant testified that her trial counsel, Keith

Garrity, Esquire, did not communicate any plea offers to her. N.T., 8/17/16,

at 8-10. Appellant eventually conceded that Mr. Garrity communicated an

offer of 10 to 20 years in prison, which she rejected, but she maintained that

had he communicated an offer less than 10 to 20 years, she would have

“considered” it.     Id. at 10.     Appellant emphasized that at her sentencing

hearing on March 19, 2013, Judge Coll3 “indicated that his notes revealed a

plea offer of 9 to 23 months.” Id. at 10-11. Appellant had not heard of that

offer prior to sentencing. Id. at 11, 14. She averred that she would have

accepted that plea. Id. at 11.

       On cross-examination, the Commonwealth showed Appellant a letter

from Mr. Garrity to Appellant in which Mr. Garrity advised Appellant of a plea
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offer of 10 to 20 years. N.T., 8/17/16, at 12-13.           Appellant agreed that

she signed page 8 of the letter, acknowledging its content, on December 28,

2012. Id. at 12. Appellant also testified that Mr. Garrity told her of a plea
____________________________________________
3
 Judge Michael F. X. Coll, who presided at Appellant’s trial and sentencing in
2013, retired at the end of 2013 and assumed senior status.             Judge
Richard M. Cappelli has presided over Appellant’s PCRA proceedings.
4
 The letter also stated, “It is my opinion that more likely than not you will
be found guilty of Aggravated Assault and either Third Degree Murder or
Voluntary Manslaughter.” Id. at 13.


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offer of 8 to 10 years, to which she responded that “I’m not pleading guilty

to nothing.” N.T., 8/17/16, at 15. Appellant said the 8 to 10 year plea was

not put in writing, and that she never received from Mr. Garrity a plea offer

of 9 to 23 months. Id.

      Deputy District Attorney Mike Galantino testified to “handling the

litigation   portion”   and   trying   Appellant’s   case.   Id.   at   17.   The

Commonwealth questioned Mr. Galantino as follows:

      Q:      In cases such as this, the Hess case, who’s authority is it
              to make offers on behalf of the Commonwealth?

      A:      In any serious case, especially a case involving a child
              homicide, all offers would have to go through me and I
              would also review an offer in a case such as this with the
              District Attorney.

      . . .

      Q:      Do you recall making offers in this case?      In the case of
              Commonwealth v. Hess?

      A:      Not at the beginning. In fact, specifically there was no
              request for an offer. There was no offer make at any time
              through the beginning of the case. It wasn’t until I took
              over the case and I had lengthy discussions with Defense
              Counsel, Mr. Garrity, that we began to talk about an offer
              of somewhere in the range of 10 to 20 years in State
              Prison for Third Degree Murder.

      Q:      And did you communicate that offer to Mr. Garrity?

      A:      I did.




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       Q:     Would you have approved an offer to a County Sentence[ 5]
              in this case?

       A:     Absolutely not. Given that this was a serious case of a
              child homicide, given that I felt the evidence was fairly
              compelling, there is no way that our office would have ever
              approved a County Sentence on a case of this magnitude.

       Q:     Did you make an offer of 9 to 23 months in this case?

       A:     No, that was never made, that was never discussed, or
              even requested for that matter.

N.T., 8/17/16, at 17-19.

       On cross-examination, Mr. Galantino testified that he did not handle

Appellant’s case initially, and that although he supervised the case, he

assigned it to another assistant district attorney, Mr. Lesniak, who “was the

one that corresponded with Defense Counsel and went to Court.” Id. at 19.

He stated, “Mr. Lesniak didn’t have the authority to make a plea offer

without going through me.” Id. at 20. With regard to the offer of 10 to 20

years, Mr. Galantino testified:

       There was a second attempt either just before the trial began or
       during the trial. . . . In this case, what was unique was the
       description of how this child had died and it was very important
       for this family to try to understand what happened to their son,
       their grandson, their nephew and I had a conversation with Mr.
       Garrity either just before jury selection or after the jury had
       been picked that if [Appellant] would come clean and tell what
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5
  A “County Sentence” is generally recognized as being less than two years.
See 42 Pa.C.S. § 9762 (generally providing for county incarceration where
sentence is under two years, but permitting county incarceration in some
cases where term is less than five years); Allegheny County v.
Commonwealth, 544 A.2d 1305, 1308 (Pa. 1988) (persons sentenced to
less than two years’ incarceration are properly in county’s custody).


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      happened to the child, since she was the only person involved
      with his care on the day that he died, that I would go back to the
      family and go back to the District Attorney and consider the
      possibility of a sentence as low as eight years but the formal
      offer was 10 to 20. There was a discussion of possibly going to
      eight provided [Appellant] gave us certain information the family
      was seeking.

Id. at 20-21.

      Mr. Galantino testified that Appellant rejected the offer of 10 to 20

years.   N.T., 8/17/16, at 22.     With regard to Judge Coll’s statement at

sentencing regarding a lesser plea offer, Mr. Galantino stated:

             It’s not that I have no recollection of it, I can say
      unequivocally I never made an offer of a County sentence and I
      would never have made an offer of a County sentence on a case
      of this magnitude. . . . I don’t know how it got into Judge
      Coll’s notes. I can say unequivocally that our office never made
      that type of an offer.

Id. at 23.

      Mr. Garrity testified that he represented Appellant at trial, and

confirmed that he communicated the plea offer of 10 to 20 years to

Appellant in written correspondence.    Id. at 25.   He also testified that he

verbally discussed with Appellant “if she were to tell the family what actually

happened to the child that [the District Attorney] may consider an eight year

sentence. I relayed that to [Appellant] and at that point, she said I told you

what happened and that was the end of the discussion.             This was with

respect to pleading guilty.”     Id. at 25-26.   Mr. Garrity stated that the

Commonwealth never made an offer of 9 to 23 months, and if it had, he

would have communicated the offer to Appellant “and waited by the front

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steps for the Courthouse to open” so that Appellant could accept that plea as

quickly as possible. Id. at 27-28. Mr. Garrity reiterated that the plea offer

of 10 to 20 years was the only offer made by the Commonwealth, “with the

caveat that if she were to tell as the Commonwealth phrased it, what

actually happened to the child, then they would consider eight and she told

me, I told you already.” Id. at 27.

        The notes of testimony from the March 19, 2013 sentencing hearing

were incorporated into the PCRA hearing. N.T., 8/17/16, at 34. The notes

read:

        The Court:        Incredibly I’m looking at the notes, you
        mentioned a plea bargain. A plea bargain as of March 23 rd,
        2012, was that she would plead to Aggravated Assault as a
        felony of the second degree and get sent to prison for nine to 23
        months, plus two years of probation.

        Mr. Garrity:     We never received that offer.

        The Court:       Pardon?

        Mr. Garrity:     We never received that offer.

        The Court:       I wrote it down here on the day it happened.

        Mr. Garrity:     Not for this case Judge.

        The Court:       It was conveyed in Court. I didn’t write that
        down because someone told me in secret. I wrote that down
        because it was conveyed in this very courtroom.

        Mr. Garrity:     Judge, with all due respect . . .

        The Court:       Well . . .

        Mr. Garrity:     . . . that offer was never conveyed in my
        presence.

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      The Court:        Well here it is and I wrote – that’s my practice.

      Mr. Garrity:      [Mr. Galantino] did you . . .

      Mr. Galantino: I wasn’t present that day.            It was another
      attorney from our office.

      The Court:        All right maybe – the point is, the point is that
      perhaps it was some kind of quid pro quo for the truth, . . . But
      regardless of whether that was any kind of viable offer, the
      situation now is she stands before the Court . . .

N.T., 3/19/13, at 63-65.

      After considering the above testimony, the PCRA court denied

Appellant’s petition for post-conviction relief.   The PCRA court made this

factual finding:

             In light of the hearing testimony and the deportment and
      statements of the various individuals who testified, it is hereby
      specifically held that there was never any pre-trial offer such as
      the “9 to 23 months.” The unsubstantiated and uncorroborated
      inadvertent statements of the sentencing judge regarding a pre-
      trial plea offer of “9 to 23 months” that bears no relation to the
      range of realistic pre-trial plea offers that would be considered
      by the Deputy District Attorney is of no legal or evident force,
      merit or effect.

PCRA Court Opinion, 1/19/17, at 6-7. The PCRA court concluded that there

was no arguable merit to Appellant’s claim because “counsel cannot be said

to have been ineffective in failing to convey a [9 to 23 month] plea offer that

never existed.” Id. at 8-9.

      We agree with the trial court’s conclusion.       In addition, we find that

Appellant’s assertion that trial counsel failed to provide “proper advice

regarding the 8 to 10 [year] offer” is without merit. Appellant claims that

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she “would have accepted [that offer] because it . . . was less than what she

was facing, which was the 10 to 20 year sentence.” Appellant’s Brief at 9.

However, at the PCRA hearing, when Appellant testified that her counsel

communicated a plea of 8 to 10 years, she also testified that she responded,

“I’m not pleading guilty to nothing.” N.T., 8/17/16, at 15. The questioning

of Appellant by PCRA counsel reads verbatim:

      Q:    Aside   from    that   written    document     that     [the
            Commonwealth] showed you from [trial counsel’s] office
            [documenting a plea offer of 10 to 20 years], did you
            receive any other plea offer prior to going to trial in this
            case?

      A:    The plea offer, he came to me, he said 8 to 10 years.

      Q:    He did say, he said that?

      A:    And I said, I’m not pleading guilty to nothing.

      Q:    Did he put that in writing to you?

      A:    No.

Id. Conversely, Mr. Garrity testified that there was no plea offer of 8 to 10

years.   He stated that the plea offer of 10 to 20 years was the only offer

made by the Commonwealth, but “with the caveat that if she were to tell as

the Commonwealth phrased it, what actually happened to the child, then

they would consider eight and she told me, I told you already.” Id. at 27.

      Appellant has failed to establish any arguable merit to her claim that

trial counsel failed to properly advise her regarding advice of “the other offer

of 8 to 10 years.” Appellant’s Brief at 10.      The record indicates that there


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was no plea offer of “8 to 10 years,” and, to the extent Appellant may have

had an opportunity to plead to 10 to 20 years, with the 10 years possibly

being reduced to 8, she rejected such an offer.

      In sum, Appellant has failed to prove trial counsel’s ineffectiveness

because her claims regarding plea offers of 9 to 23 months and 8 to 10

years lack arguable merit.       We thus affirm the PCRA court’s denial of

Appellant’s petition for post-conviction relief.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/16/2017




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