United States District Court, M.D. Pennsylvania
WILLIAM W. CALDWELL, District Judge.
The pro se petitioner, Dennis Michael Smith, pled nolo contendere to four charges of aggravated assault under 18 Pa. Con. Stat. Ann. § 2702(a)(1) in the Court of Common Pleas of York County, Pennsylvania. The charges arose from his attempt on February 29, 2008, to flee the police in his motor vehicle after selling cocaine to an informant in a controlled buy. Petitioner had other charges against him, and the pleas were part of a plea bargain in which Petitioner pled nolo contendere to some offenses while other offenses were dismissed.
He has filed a petition under 28 U.S.C. § 2254 seeking to vacate the four convictions for aggravated assault. The sole ground for relief is that his trial counsel was ineffective in advising him to plead guilty to the aggravated-assault offenses when his conduct was insufficient to satisfy the elements of the offense. More specifically, Petitioner's claim is that his conduct did not exhibit the recklessness Pennsylvania law requires to support convictions for aggravated assault.
We will deny the petition.
In 2008, Petitioner had several cases docketed against him in York County's court of common pleas. In No. CP-67-CR-2743-2008, there were twenty-nine counts, all arising from the events of February 29, 2008: five counts of aggravated assault under 18 Pa. Con. Stat. Ann. § 2702(a)(1), three counts of aggravated assault under 18 Pa. Con. Stat. Ann. § 2702(a)(2), three counts of aggravated assault under 18 Pa. Con. Stat. Ann. § 2702(a)(3), five counts of simple assault, five counts of recklessly endangering another person, and seven other charges. In No. CP-67-CR-2827-2008, Petitioner was charged with one count of manufacturing/delivery/possession with intent to manufacture or deliver cocaine on February 29, 2008. In No. CP-67-CR-4216-2008, Petitioner was charged with manufacturing/delivery/possession with intent to manufacture or deliver cocaine and with use or possession of drug paraphernalia, both occurring on April 9, 2008. In No. CP-67-CR-4240-2008, Petitioner was charged with one count of manufacturing/delivery/possession with intent to manufacture or deliver cocaine on March 25, 2008.
On December 16, 2008, Petitioner was scheduled for trial on No. 2743 and No. 2827. At that time, the prosecutor and trial counsel entered into a plea bargain on all four cases. In No. 2743, Petitioner would enter a plea of nolo contendere to seventeen of the twenty-nine counts: counts 1, 3, 4, 5, 7, 8, 10, 11, 18, 19, 20, 21, 22, 24, 27, 28 and 29 and the rest would be nolle prossed . (Counts 1, 3, 4, and 5 are the four aggravated assault charges challenged in these section 2254 proceedings.) Petitioner would also plead nolo contendere to the charges in the other cases. (Doc. 15-2, nolo contendere transcript, ECF p. 29). The "overall structure" would cap Petitioner's sentence at nine to eighteen years, with the defendant being allowed to argue at sentencing for a sentence below that. ( Id. , ECF p. 30).
The prosecutor made the following offer of proof in No. 2743. On February 29, 2008, the York County Drug Task Force successfully arranged a controlled buy of cocaine from Petitioner. The buy took place in the front seat of Petitioner's Jeep Cherokee. ( Id. , ECF pp. 34-35). The prosecutor continued:
The arrest signal was given. The arrest team moved in. Members of the Drug Task Force, specifically Trooper Keppel and Trooper Catroneo, attempted to pin in the vehicle. The car then took off. The individual struck two police cars and nearly struck Trooper Catroneo, who was out of his vehicle at the time. He had to abruptly jump out of the way to avoid being run over by the car.
Officer Hobbs, West Manchester Township, arrived in a marked unit. He tried to block the Jeep and the driver maneuvered around that car and continued down Loucks Road at a high rate of speed. Trooper Keppel continued to follow the vehicle. The vehicle eventually crashed into another vehicle driven by Shante Ross at Loucks and Taxville Road. Her infant daughter was in that car. Both individuals were not injured.
The Jeep again tried to flee. Trooper Keppel blocked the car again, and at that point the Jeep deliberately rammed into the trooper's car. The driver of the vehicle got out on foot and fled. Trooper Keppel initiated a pursuit as well as Officer Hobbs, who arrived on the scene.
( Id. , ECF p. 35). The court accepted Petitioner's nolo contendere pleas. ( Id. , ECF pp. 40-41). In relevant part, on March 20, 2009, Petitioner was sentenced to five to ten years on two of the four aggravated assault counts in No. 2743, to run concurrently to each other, and to an aggregate sentence on all charges of eight and one-half to seventeen years. (Doc. 15-2, ECF p. 70). The court later modified the sentence for reasons not pertinent here.
Petitioner took a direct appeal which was dismissed for failure to file a statement under Pa. R. App. P. 1925(b). He then filed a petition under the Pennsylvania Post Conviction Relief Act (PCRA). 42 Pa. Con. Stat. Ann. § 9541-9546. The trial court denied relief. Petitioner took an appeal to the Pennsylvania Superior Court, raising the same claim presented here - trial counsel was ineffective in advising him to plead nolo contendere to the four aggravated assault charges. In support, Petitioner claimed that his conduct did not satisfy ...