Commonwealth v. Schmuck

HESTER, Judge: This appeal is from an order entered September 20, 1988, which denied the June 20, 1988 PCHA petition filed by appellant, John C. Schmuck. We affirm. On August 14, 1985, appellant supplied a fifteen-year-old boy with beer, took him to a hotel, and performed fellatio on him. Appellant was arrested on August 22, 1985, and charged with involuntary deviate sexual intercourse, cor — 619 — ruption of minors, indecent assault, and furnishing malt or brewed beverages to a minor. Prior to the preliminary hearing, he conferred with his attorney. In adjudicating appellant’s direct appeal, we found that during that conference, his attorney explained the nature of the charges and sentencing possibilities, including the mandatory minimum sentence of five years for involuntary deviate sexual intercourse under 42 Pa.C.S. § 9718(a). Commonwealth v. Schmuck, 369 Pa.Super. 652, 531 A.2d 528 (1987). Appellant decided to plead not guilty, demanding a jury trial. He was found guilty of all charges. Following the trial, he retained new counsel and filed post-trial motions alleging trial counsel’s ineffectiveness. Following denial of those motions on September 2, 1986, appellant received the mandatory five-to-ten-year sentence for involuntary deviate sexual intercourse and a concurrent one-year sentence for corrupting the morals of a minor. We affirmed on direct appeal. Commonwealth v. Schmuck, id. In that appeal, appellant alleged that trial counsel rendered ineffective assistance, among other things, by failing to advise him of the five-year mandatory minimum sentence for involuntary deviate sexual intercourse. We determined that the claim had no merit, ruling that the attorney had informed appellant of the mandatory sentence under 42 Pa.C.S. § 9718. In this appeal, appellant’s sole contention is that all prior counsel were ineffective for failing to raise the applicability of Commonwealth v. Leonhart, 358 Pa.Super. 494, 517 A.2d 1342 (1986), petition for allowance of appeal denied, 515 Pa. 620, 531 A.2d 428 (1987), to this action. Appellant contends that he was denied effective assistance of counsel when they failed to raise, in post-verdict motions and on appeal, the Commonwealth’s lack of notice of its intent to proceed under 42 Pa.C.S.A. § 9718 (mandatory five-year sentence) in the event that Schmuck was convicted. Appellant asserts that failure of the Commonwealth to provide him, prior to trial, with a written notice of their intention to seek the mandatory five-year sentence deprived — 620 — him of his right to intelligently weigh the alternatives of going to trial versus negotiating a plea. He argues that counsel was ineffective for failing to object to the lack of such notice. The supreme court of this Commonwealth has recently reviewed the well-established standard of review with respect to claims of ineffectiveness of counsel. In Commonwealth v. Hentosh, 520 Pa. 325, 554 A.2d 20 (1989), the supreme court stated: Approaching our task of determining whether counsel’s assistance was effective we initially presume that it was. Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987); Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967). Then, in analyzing a defendant’s claim, we examine whether the claimant’s allegations are possessed of arguable merit. Pierce, supra; Commonwealth v. Stoyko, 504 Pa. 455, 475 A.2d 714 (1984); Maroney, supra. We next determine whether of the alternatives available to counsel in presenting the defense those chosen were possessed of a reasonable basis in effecting his client’s interests. Id.; Commonwealth v. Wade, 501 Pa. 331, 461 A.2d 613 (1983). Assuming positive resolution of both inquiries above, we require finally that the claimant demonstrate how the asserted ineffectiveness prejudiced his cause. Pierce, supra; Commonwealth v. Clemmons, 505 Pa. 356, 479 A.2d 955 (1984); Commonwealth v. Vogel, 501 Pa. 314, 461 A.2d 604 (1983), cert. den’d, 465 U.S. 1104, 104 S.Ct. 1603, 80 L.Ed.2d 133 (1984). In conducting this analysis it is important to bear in mind that allegations of the deprivation of the right to effective representation of counsel are not self-sustaining. The burden of proof of the allegations remains with the claimant, their accuracy still to be established by his submission of relevant proofs. Commonwealth v. McNeil, 506 Pa. 607, 487 A.2d 802 (1985); Commonwealth v. Miller, 494 Pa. 229, 431 A.2d 233 (1981); Commonwealth v. Shore, 487 Pa. 534, 410 A.2d 740 (1980); — 621 — Commonwealth v. Logan, 468 Pa. 424, 364 A.2d 266 (1976); Maroney, supra. Id., 520 Pa. at 334, 554 A.2d at 24. Appellant argues that Commonwealth v. Leonhart, supra, supports his allegation that the Commonwealth had a duty to inform him, prior to trial, that it intended to seek the imposition of the mandatory minimum sentence in the event he was convicted. In Leonhart, the defendant pled guilty to involuntary deviate sexual intercourse with a person less than sixteen years of age and corruption of minors. He was not given notice of the applicability of 42 Pa.C.S. § 9718, which imposed a mandatory minimum sentence of five years, until sentencing. The defendant in Leonhart sought to withdraw his guilty plea, due to the fact that the Commonwealth’s failure to notify him of the applicability of section 9718 prior to submission of his plea resulted in the plea being involuntary and not knowingly tendered. This court held that section 9718 requires that such notice be given prior to the entry of a guilty plea. As a result, the defendant was permitted to withdraw his plea and proceed to trial by jury. As we noted in Leonhart, section 9718 sets forth no provision concerning the notice required to be given defendants. We there further observed that other statutes in the mandatory sentencing scheme — offenses committed with firearms, 42 Pa.C.S.A. § 9712, offenses committed on public transportation, 42 Pa.C.S.A. § 9713, and second and subsequent offenses, 42 Pa.C.S.A. § 9714 — which carry the same five year minimum sentence as does Section 9718, have been interpreted so as to require that notice be given to the defendant of their application following conviction and before sentencing. See Commonwealth v. Shaffer, 498 Pa. 342, 446 A.2d 591 (1982); Commonwealth v. Reagan, 348 Pa.Super. 589, 502 A.2d 702 (1985); Commonwealth v. Anderson, 345 Pa.Super. 407, 498 A.2d 887 (1985). Statutes in a scheme covering the same subject matter should be construed, whenever possible, as one harmonious component of the entire statutory structure. Commonwealth v. — 622 — Leonhart, supra; Royal Indemnity Co. v. Adams, 309 Pa.Super. 233, 455 A.2d 135 (1983). As we further stated in Commonwealth v. Leonhart, supra, 358 Pa.Super. at 502, 517 A.2d at 1347 (emphasis added): As noted earlier, the mandatory provision is triggered when the trial court has determined at sentencing that its conditions have been met. Only then does it operate as a sentencing factor. Accordingly, due process concerns require that the prosecutor give notice of its intention to proceed prior to sentencing under the relevant mandatory sentencing statute. If the prosecution believes that it is unable to establish by a preponderance the elements of the applicable mandatory provision, it need not give notice. The mandatory minimum sentence is not included in the definition of the offense and is not an element thereof. It does not impose a penalty more severe than that which could be imposed if the statute did not apply. It simply removes the sentencing court’s discretion to impose a lesser sentence. The applicability of the sentencing provisions set forth in 42 Pa.C.S.A. § 9718(a) is not within the sole discretion of the Commonwealth as prosecutor. Rather, the commission of one of the crimes listed in that section, upon a victim under the age of sixteen, must be determined by the trial court to have been proven before the mandatory sentencing provisions come into effect. Our holding in Leonhart has no application to the within fact situation. Appellant did not plead guilty; he proceeded to trial by jury where there existed the possibility of acquittal. He does not contend that he did not receive a fair trial. His allegation is completely lacking in merit. We therefore hold that the Commonwealth was not required to notify appellant prior to trial that it would proceed under 42 Pa.C.S.A. § 9718(a) in the event he was convicted. — 623 — Counsel was not ineffective for failing to raise, in post-trial motions and in the first appeal, the lack of notice by the Commonwealth prior to trial of its intention to request the imposition of the minimum sentence set forth in 42 Pa.C. S.A. § 9718(a). We affirm. KELLY, J., files a concurring opinion.