J-S12019-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

  COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                  Appellee

                     v.

JEREMY ALLEN TRESSELT

                          Appellant                       No. 1322 MDA 2016


                   Appeal from the PCRA Order July 8, 2016
               In the Court of Common Pleas of Lebanon County
              Criminal Division at No(s): CP-38-CR-0000489-2014
                            CP-38-CR-0001040-2014


BEFORE: PANELLA, J., OTT, J., and MUSMANNO, J.

MEMORANDUM BY OTT, J.:                                    FILED APRIL 10, 2017

      Jeremy Allen Tresselt appeals from the order entered July 8, 2016, in

the Court of Common Pleas of Lebanon County that denied, after an

evidentiary    hearing,   Tresselt’s   first   petition   filed   pursuant   to   the

Pennsylvania Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546.

Tresselt contends trial counsel was ineffective (1) in failing to seek a

reduction in restitution prior to his sentencing, which would have allowed

him to comply with the terms of his initial plea agreement, and would have

resulted in a lesser sentence than the sentence ultimately imposed; (2) in

failing to object to the grading of the criminal mischief charge at Docket No.

489-2014; (3) in failing to object to the grading of the theft charge at

Docket No. 489-2014; and (4) in advising Tresselt that the grading of the

offenses at Docket No. 489-2014 would be reduced by the sentencing judge
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at the time of sentencing.         See Tresselt’s Brief at 1–2.   Based upon the

following, we affirm.

       The PCRA court has summarized the background of this case, as

follows:

       On February 11, 2014, Jeremy Allen Tresselt [] was charged in
       Docket 489-2014 with additional [sic] offenses, including
       Conspiracy to Commit Theft, Possession of an Instrument of
       Crime, and Criminal Mischief. These charges stem from an
       incident that occurred on February [11], 2014, where [Tresselt]
       used a blow torch in an effort to break into an ATM machine.

       On March 25, 2014, [Tresselt] was charged in Docket 1040-2014
       with numerous crimes, including Burglary, Conspiracy to Commit
       Burglary, Possession of an Instrument of Crimes, Corruption of
       Minors, Loitering and Prowling at Night and Criminal Mischief. All
       of these charges stem from an incident that occurred on January
       17, 2014, in Millcreek Township of Lebanon County. [Tresselt]
       entered a plea of guilty[1] to all charges in both dockets on
       October 23, 2014. The pleas were entered pursuant to a global
       agreement that called for [Tresselt] to receive 11½ months in
       the Lebanon County Prison provided that $1,600 restitution was
       paid at or before the time of sentencing. Following [Tresselt’s]
       plea, sentencing was postponed on numerous occasions.1
       _________________________________________
           1
            On one of these occasions, [Tresselt’s] attorney
          represented to the Court that [Tresselt] was hospitalized.
          Later, the attorney learned that [Tresselt] had lied to him
          about being hospitalized.
       _________________________________________

       When [Tresselt’s] case was finally called for sentencing on
       March 18, 2015, [Tresselt] failed to appear. A bench warrant

____________________________________________


1
  The record reflects the pleas were nolo contendere. See Nolo Contendere
Plea, 10/23/2014.



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     was issued. [Tresselt] was not apprehended on the bench
     warrant until May 12, 2015.

      [Tresselt’s] case was initially called for sentencing on June 17,
     2015. At that time, [Tresselt] did not have any money to
     contribute toward restitution. As a result, the Commonwealth
     withdrew its plea agreement offer. The Court then granted
     [Tresselt’s] request to withdraw his plea of guilty. The case was
     scheduled for a trial in August of 2015. In addition, we granted a
     request to withdraw appearance by Corey Lamoureux, Esquire,
     who was [Tresselt’s] initial counsel. We appointed Jessica
     Weaver, Esquire[,] in the place of Attorney Lamoureux.
     Subsequently, Attorney Loreen Burkett entered her appearance
     on behalf of [Tresselt].

     On August 12, 2015, [Tresselt] entered another plea of guilty to
     all charges. This second plea was an open one. Pursuant to this
     open plea, [Tresselt] appeared for sentencing on October 28,
     2015. We imposed a sentence to 2 to 6 years in a state
     correctional facility. …

                                    ****

     On November 30, 2015, [Tresselt] filed a pro se document
     entitled “Motion to Correct Illegal Sentence.” Simultaneously, he
     filed another pro se document self- styled as a “Motion for Post-
     Sentence Relief.” We subsequently granted [Tresselt] an
     extension of time to file an Amended Post-Sentence Relief
     Petition. He filed another such Petition on February 10, 2016.
     Although styled as a Post-Sentence Relief Petition, the essence
     of [Tresselt’s] amended motion was to raise issues of ineffective
     assistance of counsel. In fact, [Tresselt] articulated in his motion
     “that he is entitled to relief under the Post-Conviction Relief Act
     due to ineffective assistance of counsel and the imposition of an
     improper sentence.”

     We treated [Tresselt’s] post-sentence motion as a PCRA request
     for relief. [Counsel was appointed and filed an amended PCRA
     petition.] We scheduled a hearing take place. On July 7, 2016,
     we presided over a factual hearing. …

PCRA Court Opinion, 9/21/2016, at 1–4 (underlining in original).




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       Following the evidentiary hearing, the PCRA court denied Tresselt’s

petition for PCRA relief, and this appeal followed.2

       The principles that guide our review are well settled:

       “[A]s a general proposition, we review a denial of PCRA relief to
       determine whether the findings of the PCRA court are supported
       by the record and free of legal error.” Commonwealth v.
       Dennis, 609 Pa. 442, 17 A.3d 297, 301 (Pa. 2011) (citation
       omitted). A PCRA court’s credibility findings are to be accorded
       great deference, and where supported by the record, such
       determinations are binding on a reviewing court. Id., at 305
       (citations omitted).

                                           ****

       To be entitled to relief on an ineffectiveness claim, a PCRA
       petitioner must establish: (1) the underlying claim has
       arguable merit; (2) no reasonable basis existed for counsel’s
       action or failure to act; and (3) he suffered prejudice as a result
       of counsel’s error, with prejudice measured by whether there is a
       reasonable probability the result of the proceeding would have
       been different. Commonwealth v. Chmiel, 612 Pa. 333, 30
       A.3d 1111, 1127 (Pa. 2011) (employing ineffective assistance of
       counsel test from Commonwealth v. Pierce, 515 Pa. 153, 527
       A.2d 973, 975-76 (Pa. 1987)). Counsel is presumed to have
       rendered effective assistance. Commonwealth v. Ali, 608 Pa.
       71, 10 A.3d 282, 291 (Pa. 2010). Additionally, counsel cannot be
       deemed ineffective for failing to raise a meritless claim.
       Commonwealth v. Jones, 590 Pa. 202, 912 A.2d 268, 278 (Pa.
       2006). Finally, because a PCRA petitioner must establish all the
       Pierce prongs to be entitled to relief, we are not required to
       analyze the elements of an ineffectiveness claim in any specific
       order; thus, if a claim fails under any required element, we may
       dismiss the claim on that basis. Ali, at 291.

Commonwealth v. Treiber, 121 A.3d 435, 444-445 (Pa. 2015).

____________________________________________


2
 Tresselt timely complied with the order of the PCRA court to file a Pa.R.A.P.
1925(b) statement.



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      Tresselt first contends counsel was ineffective in failing to seek a

reduction in restitution prior to his initial sentencing date of June 17, 2015.

      As stated by the PCRA court, on October 23, 2014, the Commonwealth

offered a global plea agreement by which Tresselt would receive an 11½-

month   minimum      sentence   of   incarceration   in   the   Lebanon   County

Correctional Facility, provided that he paid restitution of approximately

$1,600.00 prior to or at sentencing.      However, on June 17, 2015, when

Tresselt did not have the restitution payment, the Commonwealth withdrew

the plea offer. Tresselt subsequently entered an open plea and received a

two-to-six year sentence of imprisonment. Following his October 28, 2015,

sentencing, Tresselt’s restitution obligation was lowered to approximately

$530.00. Tresselt asserts trial counsel’s ineffectiveness in failing to object to

the restitution amount prior to June 17, 2015, caused him to be unable to

comply with the terms of the negotiated plea offer, which, in turn, led to the

open plea and his current sentence, rather than the 11½ month county

sentence.

      At the PCRA hearing, Corey Lamoureux, Esquire, who represented

Tresselt at the time of the initial plea agreement, testified the first time he

could recall Tresselt indicating there was an issue with the restitution

payment was at the time scheduled for sentencing. See N.T., 7/7/2016, at

28. Mr. Lamoureux further testified that the Commonwealth’s plea offer was

based on restitution “paid in full prior to sentencing.” Id. at 29.


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     The PCRA court analyzed the testimony, as follows:

     At the hearing on July 7, 2016, [Tresselt] testified that his
     restitution was reduced following sentencing from approximately
     $1,600 to approximately $530. He testified that he could not pay
     the larger amount when his case was called for sentencing in
     June of 2015, but he could have paid the smaller amount. He
     alleges that his counsel was ineffective for failing to negotiate a
     lower restitution amount prior to the date of his guilty plea [sic].
     In response, Attorney Lamoureux testified that [Tresselt] had
     always led him to believe that payment of $1,600 at sentencing
     would not be a problem. It was not until sentencing itself that
     Attorney Lamoureux learned that [Tresselt] did not have $1,600.
     In fact, at sentencing [Tresselt] had nothing at all. Had
     [Tresselt] been able to pay even a percentage of the restitution
     amount, Attorney Lamoureux testified that he would have
     initiated additional negotiations with the Commonwealth in an
     effort to preserve the plea agreement.

     Once the Commonwealth withdrew its plea agreement in June of
     2015, the plea agreement was never again reinstated. []
     Attorney Weaver indicated that [when] she was appointed, she
     inquired with the Commonwealth whether it would reinstate the
     previously-offered plea agreement, and the Commonwealth
     responded that it would not.

     We find the testimony of Attorney Weaver and Attorney
     Lamoureux to be more credible than the testimony offered by
     [Tresselt]. Specifically, we conclude that [Tresselt] was never
     prepared to pay any amount of restitution that would have
     triggered applicability of the 11½ month plea agreement.
     Moreover, no evidence was presented that the Commonwealth
     would have agreed to honor the 11½ month plea agreement in
     return for payment by [Tresselt] of an amount less than full
     restitution. For either of these reasons, we conclude that
     counsel’s alleged failure to take action in order to reduce
     restitution from $1,600 to $530 would not have made any
     difference with respect to the Commonwealth’s decision to
     withdraw its plea agreement.

PCRA Court Order, dated 7/8/2016, filed 7/11/2016, at 5-6, ¶¶M-O.

     The PCRA court, in its opinion, further reasoned:


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      No defendant enjoys a right to a plea agreement. See, e.g.
      Commonwealth v. McElroy, 6[6]5 A.2d 813, 816 (Pa. Super.
      1995). Just as the Commonwealth has the authority to offer a
      plea agreement, so too does it have the authority to withdraw an
      offered plea agreement. See e.g. Commonwealth v. McElroy,
      supra; Commonwealth v. Spence, 627 A.2d 1176 (Pa. 1993).
      In this case, the Commonwealth withdrew its local sentence plea
      offer when [Tresselt] failed to have restitution at the time of his
      initial sentencing. Once the plea offer was withdrawn, it was
      never again reinstated. We cannot blame [Tresselt’s] former
      counsel for this situation; the loss of his plea offer was
      exclusively caused by the fact that [Tresselt] did not have the
      $1,600 he promised he would have at the time of sentencing.

PCRA Court Opinion, 9/21/2016, at 9–10. Based on our review, we discern

no basis upon which to disturb the PCRA court’s determination.

      Following the plea, based on Tresselt’s representations, Attorney

Lamoureux filed at least two continuances, and later discovered Tresselt had

lied to him about being hospitalized.        See N.T., 7/7/2016, at 31.         In

addition, a bench warrant was issued for Tresselt for sentencing. See id. at

28.     On rebuttal, Tresselt testified that at the time of the originally

scheduled   sentencing    hearing,   “I   never   said   anything   [to   Attorney

Lamoureux] about what I could afford or stuff like that. … With the amount

at time [sic] I thought it was actually rather easy to accumulate $1,600, but

it rather wasn’t because at the time I wasn’t working.” Id. at 41. Tresselt

further testified:   “The only reason that I had absconded … is because I

didn’t have $1,600 to pay my restitution. I fabricated the story to buy me

more time to try to accumulate the money.” Id. at 42.




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      We agree with the PCRA court that former counsel cannot be held

ineffective based upon Tresselt’s failure to pay the amount of restitution that

Tresselt promised to pay at sentencing in exchange for the plea offer. As

such, Tresselt’s first claim of ineffectiveness fails.

      In his second issue, Tresselt contends that former counsel was

ineffective in failing to object to the grading of the criminal mischief charge

at Docket 489-2014 prior to the time of sentencing. In his third issue,

Tresselt contends that former counsel was ineffective in failing to object to

the grading of the theft charge at Docket 489-2014, prior to the time of

sentencing. We address these issues together.

      The Crimes Code provides that criminal mischief is graded as a third

degree felony if the amount of loss caused is in excess of $5000.00, and is

graded as a second degree misdemeanor if the amount of the loss is greater

than $1000.00.      See 18 Pa.C.S. § 3304.        The criminal mischief charge,

which arose from Tresselt’s use of a blow torch on an ATM, was graded as a

third degree felony based on damage in excess of $5,000.00.           Tresselt,

however, argues the only evidence of value ever provided to him was the

owner’s statement that it would cost $2,000.00 to replace the ATM.

Therefore, Tresselt claims counsel was ineffective in failing to request

modification of the grading of the criminal mischief charge, which caused

him to receive a longer sentence.




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     With regard to the grading of theft offenses, the applicable statute is

18 Pa.C.S. § 3903. Relevant to Tresselt’s argument, Section 3903 provides

that theft “constitutes a felony of the third degree if the amount involved

exceeds $2,000,” 18 Pa.C.S. § 3903(a.1), and “if the property was not taken

from the person or by threat, or in breach of fiduciary duty and: … the

amount involved was less than $50 constitutes a misdemeanor of the third

degree.” 18 Pa.C.S. § 3903(b)(2). Subsection 3903(c) provides, in relevant

part, “When the value of property cannot be satisfactorily ascertained … its

value shall be deemed less than $50.” 18 Pa.C.S. § 3903(c)(3). Tresselt

argues that although the ATM owner’s statement to police indicated there

was approximately $7,000 in the ATM, there was no verified documentation

regarding the amount of money, and therefore valuation should have been

deemed to be less than $50. Tresselt maintains counsel was ineffective in

failing to request modification of the theft charge to a third degree

misdemeanor.

     At the PCRA hearing, Attorney Lamoureux, who represented Tresselt

at the time of the plea agreement offer, and Attorney Weaver, who

represented Tresselt for the open guilty plea, both testified that Tresselt

raised his concern about the grading of the criminal mischief and theft

charges with them, and that they had advised him if he wanted to challenge

the grading he would have to proceed to trial. N.T., 7/7/2016, at 30, 36.

Attorney Lamoureaux testified that Tresselt chose to go through with a


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negotiated plea, and Attorney Weaver testified Tresselt chose to go through

with an open plea.   See id. at 30, 37. Attorney Weaver testified Tresselt

never requested to withdraw his plea. See id. at 37.

      Based on our review, we find that the PCRA court properly rejected

these ineffectiveness claims. Furthermore, based on the full discussion set

forth in the PCRA court’s opinion, we simply reiterate:

      [Tresselt] entered a plea of guilty on August 12, 2015. At that
      plea proceeding, the Judge outlined all of the charges on both
      dockets. (Guilty Plea N.T. 3-7). As to all the charges, [Tresselt]
      indicated that he understood what was being charged. (N.T. 4;
      7). The Court also outlined for [Tresselt] the total maximum
      penalties that he would face on the charges lodged against him.
      (N.T. 9). Further, the Judge told [Tresselt] that his plea was an
      open one and that “any sentence you receive would be totally at
      the discretion of your sentencing judge.” [Tresselt] indicated
      that he understood this. (N.T. 10).

      In addition to the Court’s verbal colloquy, [Tresselt] completed
      written guilty plea colloquies. On the face sheet of each guilty
      plea colloquy was a list of charges together with the grading of
      each charge. In his written guilty plea form, [Tresselt]
      acknowledged that he was pleading guilty voluntarily and that no
      plea agreement governed his plea of guilty (See Guilty Plea
      Colloquies filed in Open Court on August 12, 2015). After
      [Tresselt] entered his plea, he endorsed the Criminal Information
      by signing a Guilty Plea on the reverse side. The Criminal
      Informations clearly outlined the grading of the offenses lodged
      against [Tresselt].

      At the PCRA Hearing conducted on July [7], 2016, both Attorney
      Lamoureux and Attorney Weaver testified that [Tresselt] was
      told he was entering pleas of guilty to felony offenses. Neither
      Attorney Weaver nor Attorney Lamoureux promised anything
      less. In fact, both attorneys advised [Tresselt] that if he wished
      to challenge the grading of the offenses, he would have to do so
      at trial. Nevertheless, he proceeded with his plea of guilty.




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      Given all of the above information, it is crystal clear to this Court
      that [Tresselt] entered a global plea of guilty to numerous felony
      and misdemeanor offenses knowingly and voluntarily. He was
      not induced to enter his pleas by intentional or negligent
      misrepresentations by counsel, nor was he promised by anyone
      that the felony charges he admitted committing would be
      reduced to misdemeanors. In short, there is absolutely no
      reason why the validity of [Tresselt’s] plea should be impugned.

      At the time of his PCRA Hearing, [Tresselt] seems to indicate
      that the Commonwealth could not have established a felony at
      trial. While we doubt that this is in fact true, it does not matter
      whether the Commonwealth would or could not have proven
      something at trial. The fact remains that [Tresselt] admitted that
      he committed felony grade offenses. His admission rendered a
      trial unnecessary.

PCRA Opinion, 9/21/2016, at 7–9 (footnote omitted) (emphasis in original).

      We agree with the PCRA’s court’s analysis.       Tresselt was aware that

the criminal mischief charge and the theft charge were graded as third

degree felonies, and yet chose to enter an open plea. At the PCRA hearing,

Tresselt admitted that when he proceeded to sentencing he “did not ask to

withdraw [his] pleas,” and “never asked to proceed to trial.” N.T., 7/7/2016,

at 20. Tresselt further admitted that he complained about the grading of the

offenses at sentencing, stating:

      I never once had a chance to sit there and file necessary
      motions because I didn’t feel like going through those loopholes.
      [N.T., 10/28/2015 (Sentencing Hearing), at 8–9.]

N.T., 7/7/2016, at 20.     Tresselt acknowledged he chose to proceed with

sentencing on the “F-3” grading.       Id. at 20–21.     Accordingly, Tresselt’s

second and third ineffectiveness claims fail.




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      Lastly, Tresselt argues that trial counsel provided ineffective assistance

by advising him that the grading of his offenses would be reduced at the

time of sentencing by the sentencing judge.          Attorney Lamoureux and

Attorney Weaver denied telling Tresselt the charges would be amended at

sentencing. See id. at 31, 37. Both attorneys testified they told Tresselt he

could challenge the grading if he chose to proceed to trial. Id. at 30, 36.

Regarding Tresselt’s claim, the PCRA Court found trial counsels’ testimony to

be credible, and determined that Tresselt was not credible. See PCRA Court

Opinion, 9/21/2016, at 10 (“As we stated in our July 8, 2016, Court Order,

this Court found the testimony of Attorney Lamoureux and Attorney Weaver

to be credible, and we did not believe [Tresselt].”).

      Following the entry of Tresselt’s open plea, Loreen Burkett, Esquire,

was appointed to represent Tresselt at sentencing on both dockets.          She

testified that prior to sentencing, he never requested to withdraw his plea.

N.T., 7/7/2016, at 38. She stated she looked into the grading issue because

she was aware Tresselt was unhappy about it.            See id. at 39.     After

researching the issue, she advised Tresselt that the offenses “were graded

appropriately as far as him pleading guilty,” and nothing more could be

done. Id. She advised Tresselt to proceed to sentencing. See id.

      Attorney Burkett’s testimony that Tresselt was unhappy about the

grading after entering his open plea and had discussion with Tresselt

regarding   the   grading   issue   supports   the   PCRA   court’s   credibility


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determinations that Attorneys Lamoureux and Weaver never promised

Tresselt the charges would be reduced at sentencing. Therefore, we reject

Tresselt’s final ineffectiveness claim.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/10/2017




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