United States District Court, M.D. Pennsylvania
A. RICHARD CAPUTO United States District Judge.
On July 15, 2010, the pro se petitioner, John Englert, II, pled nolo contendere in the Court of Common Pleas of Clinton County, Pennsylvania, to various charges, including homicide by watercraft while operating under the influence. The charges arose from a fatal boating collision on the West Branch of the Susquehanna River in which a twelve-year-old girl died, and two other children were injured.
Mr. Englert has filed a petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. (Doc. 1, Pet., ECF p. 15.) He claims both his plea and post-conviction counsel, were ineffective by “failing to examine the facts of this case, including expert accident reports that contend that the operator of the other boat displayed a careless disregard for boating regulations ... and the safety of others.” (Id., ECF p. 5.) He also argues his due process rights were violated because he has “never had a fair and meaningful hearing on the merits” of his case. (Id., ECF p. 9.) Finally, he maintains his innocence asserting that the operator of the other watercraft caused the collision by failing to adhere to the rules of the waterway. (Id., ECF p. 10.)
For the reasons that follow, the petition for writ of habeas corpus will be denied. A certificate of appealability will not be issued.
One day before the start of his criminal trial, Mr. Englert entered a plea of nolo contendere.
On July 15, 2010, [Mr. Englert], pursuant to a plea agreement, entered a plea of nolo contendere to homicide by watercraft while operating under the influence and related charges as a result of a fatal boat collision in which a twelve-year-old girl died, and two other children were injured. In return for [Mr. Englert]’s plea, the Commonwealth withdrew in excess of thirty other charges, including involuntary manslaughter. On July 29, 2010, the trial court sentenced [Mr. Englert] to an aggregate term of five to eleven years of imprisonment, as well a consecutive two-year probationary term. [Mr. Englert] did not file a direct appeal.
(Doc. 21-7, Commonwealth v. Englert, No. 1146 MDA 2011 (Pa. Super. Dec. 2, 2011) (slip op).)
A. Post-Conviction Proceedings
On January 12, 2011, Mr. Englert filed a pro se petition for post-conviction relief under Pennsylvania’s Post Conviction Relief Act (PCRA), 42 Pa. Cons. Stat. Ann. §§ 9541, et seq. (Doc. 21-3, PCRA Pet.) His sole claim for relief was based on “[t]he unavailability at the time of trial of exculpatory evidence that has subsequently become available and would have changed the outcome of the trial if it had been introduced.” (Id., ECF p. 2.) Specifically, Mr. Englert claimed that the “rules of the intercoastal waterways” confirm that his “boat was always where it was supposed to be” as provided for in the Boating and Waterway regulations and rules, and if the other operator “could say the same for his boat”, the accident would not have happened. (Id., ECF p. 3.) He states this “new” information was made known to him “by family, friends with more boating experience[;] PFBA Saf[e]ty course[;] Paul Ryan - Lawyer[; and] Miles Beam - boat accident reconstruction specialist[.]” (Id., ECF p. 3.) He advises that Attorney “Paul Ryan has supporting evidence.” (Id., ECF p. 4.)
The PCRA court appointed Attorney David A. Strouse to assist Mr. Englert. (Doc. 21-7, ECF p. 2.) In lieu of filing an amended PCRA petition, Attorney Strouse filed a no-merit letter and requested to withdraw pursuant to the dictates of Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). Attorney Strouse undertook the following investigation prior to reaching his decision not to file an amended petition.
[r]eviewed the file contents in the Prothonotary’s office, reviewed the docket entries, met with and discussed the case with John E. Englert at the State Correctional Institution in Albion, spoke with Mr. Englert’s previous counsel, Paul J. Ryan, Esquire, researched Post Conviction Relief Act issues, researched Pennsylvania Sentencing Guidelines and procedure, reviewed notes of the July 15, 2010 proceedings at which time John E. Englert entered pleas of nolo contendre, reviewed the July 29, 2010 transcript of proceedings for John E. Englert’s sentencing.
(Doc. 21-6, No Merit Letter/Motion for Leave to Withdraw, ECF p. 46.) Based on this review he did not believe the sole claim raised by Mr. Englert in his pro se PCRA petition had any merit. (Id.) He observed that Mr. Englert’s decision to plead nolo contendere was made at a time when
the boating rules and regulations promulgated by the Fish and Boat Commission [were] published and available to the public. In fact, they are some of the very rules and regulations with which Petitioner was accused of violating in the criminal complaint and Information filed against him in this case. The expert report of defense expert Miles Beam was also available to Petition prior to the entry of his plea, as the final draft of the report was completed on June 23, 2010, and provided to Petitioner and his counsel. Petitioner had the opportunity to review drafts of Beam’s reconstruction report in the weeks leading up to June 23, 2010, which included a description of the incident which supported Petitioner’s argument that he was operating his boat in accordance with the boating rules and regulations.
(Id., ECF p. 48.) Attorney Strouse determined that given the information available to Mr. Englert at the time of entering his nolo contendere plea, he would not be able to prove by a preponderance of the evidence that the boating rules and regulations, or the findings of the expert’s report, were discovered after he entered his plea and could not have been obtained earlier through reasonable diligence. (Id., ECF p. 41, 46 - 48.) Nonetheless, Attorney Strouse “researched other possible avenues to establish a claim for post conviction relief and [was] unable to state a claim for any reason which would entitled Petitioner to relief.” (Id., ECF p. 46.) He determined that in light of Mr. Englert’s plea, the only other possible claim Mr. Englert could (but did not) present in his PCRA petition, was
that Petitioner’s plea was induced as a result of the ineffective assistance of counsel. Specifically, with the existence of evidence that would support Petitioner’s claim of innocence, was counsel ineffective in his representation of Petitioner in the pretrial process and in contemplation of his plea?
(Id., ECF p. 48.) Attorney Strouse reviewed Attorney Ryan’s efforts in representing Mr. Englert which included researching and securing a boat accident reconstruction specialist, preparing and filing various pretrial motions including the successful suppression of a portion of Mr. Englert’s statements to law enforcement, his pre-plea discussions with Mr. Englert concerning the maximum sentence ranges he faced if he entered a plea, and his trial preparations if Mr. Englert did not accept the plea. This information combined with Mr. Englert’s professed satisfaction with Attorney Ryan’s trial preparation, planned defense strategy, and overall representation at the time he entered his plea,  precluded the pursuit of a claim that Attorney Ryan’s performance was deficient or that he coerced Mr. Englert into accepting a plea, or that his plea of nolo contendere was involuntary. (Id., ECF pp. 48 - 51.)
Finally, with respect to Mr. Englert’s claim of actual innocence, Attorney Strouse found that:
the expert report and drafts prepared by defense expert, Miles Beam, do not completely exculpate Petitioner in the accident. Notably, Mr. Beam opined that Petitioner did act improperly, to an extent, in operating his boat just prior to the collision. Beam was unable to discern what level of control Petitioner was able to exhibit at the time due to his blood alcohol level. Clearly, had Petitioner proceeded to trial, he faced possible conviction of a wide range of offenses even if the jury chose to accept Mr. Beam’s expert testimony as credible.
(Id., ECF pp. 49 - 50.) Based on the absence of any presented, or foreseeable, meritorious PCRA claim, Attorney Strouse asked for leave to withdraw as Mr. Englert’s counsel.
On May 23, 2011, the PCRA court held an evidentiary hearing at which both Mr. Englert and his plea counsel, Attorney Ryan, testified. (Doc. 21-6, PCRA Hearing Tr., ECF pp. 13 - 31.) At the conclusion of the hearing, the PCRA court entered an order dismissing Mr. Englert’s PCRA petition and permitting Attorney Strouse to withdraw. (Doc. 21-4.) The PCRA court held that:
At today’s hearing Defendant reiterated his contention that the “rules of the road” with regard to boating were well known to him prior to the entry of his plea and that he had reviewed with his Trial Counsel the expert report prepared for the Commonwealth and the report from the expert retained by him. Defendant had no complaint concerning the conduct of his Trial Attorney.
While Defendant alleges the unavailability of exculpatory evidence that has subsequently become available, in fact, all evidence upon which he relies today was available to him prior to his plea. Defendant’s decision to enter a plea of nolo contendere after extensive contact with Trial Counsel was knowing, voluntary, and intelligent.
(Id., ECF p. 2.) Mr. Englert then filed a pro se appeal.
On appeal, Mr. Englert raised the five following issues:
1. Whether PCRA counsel, David A. Strouse, Public Defender of Clinton County, has relied upon Defendant/Appellant’s lack of ability to legally assert claims in a pro-se petition as the means to withdraw under a ‘no merit letter’ rather than amend the original petition.
2. Whether above named counsel failed, by his own admission, to examine those Boating and Waterway regulation and rules that directly effect this case or the discovery in this instant case.
3. Whether the above named counsel, despite being given the “mirror” case of Com. v. Moyer, 684 A.2d 42 [Pa. Super. 1994)], failed to utilize this and other information in the development of an actual innocence (or any other), claim cogent to relief.
4. W hether above named counsel’s performance fell below the standard of meaningful and effective assistance of petitioner[’s] first PCRA.
5. Whether above named counsel failed or simply ignored pertinent facts of suppression in this case, is the fact that the defendant was found to be consuming alcohol in the presence of officers prior to testing for alcohol taints the result of those tests to the point of being unreliable as evidence and should have ...