United States District Court, M.D. Pennsylvania
John E. Jones III, Judge.
Kevin Lee Beam (“Petitioner” or
“Beam”), a state inmate currently confined at the
State Correctional Institution at Albion, Pennsylvania, filed
his Petition (Doc. 1) for Writ of Habeas Corpus pursuant to
28 U.S.C. § 2254 and Memorandum (Doc. 2) in support of
the petition on April 26, 2016. He seeks relief from the
Judgment of Sentence of twenty years and nine months to
fifty-nine years' incarceration imposed in Court of
Common Pleas of Franklin County, Pennsylvania, criminal case
CP-28-CR-0000499-200, following convictions for rape,
criminal attempt to commit involuntary deviate sexual
intercourse, aggravated indecent assault, and endangering the
welfare of a child. (Doc. 1, p. 1).
Memorandum and Order dated May 9, 2018, the Court denied the
petition with respect to all claims except the claim that
Attorney Toms' “failure to properly and adequately
inform [him], a person with a low IQ and severely hindered by
his mental capacity, of the significant risks of withdrawing
the guilty plea and going to trial amounted to ineffective
assistance of counsel at a critical stage in the
proceedings...” (Doc. 17; Doc. 2, p. 32). As noted in
the Court's prior Memorandum, because the state court
failed to address the issue, despite the fact that Beam
fairly presented it during all phases of the collateral
proceedings (Doc. 15-1, pp. 96, 97; Doc. 15-2, pp. 9, 18, 19,
45-48, 62-107; Doc. 15-3, pp. 39-42; Doc. 15-4, pp. 4-14;
Doc. 15-5, pp. 19-21), de novo review is required.
(Doc. 17, pp. 40, 41). The Court ordered Respondents to file
a supplemental brief addressing the issue. (Id. at
42). Respondents filed a timely Supplemental Response. (Doc.
20). The Court also directed Respondents to expand the record
by providing all documents related to the entry and
withdrawal of the guilty plea, including transcripts of the
October 25, 2010 plea colloquy and the December 8, 2010
hearing on the withdrawal of the plea. (Doc. 17, p. 42).
According to Respondents, the transcripts are no longer
available; they were destroyed in accordance with the
Administrative Office of Pennsylvania Courts Record Retention
and Disposition Schedule. (Doc. 20-1, p. 3, ¶¶
3-7). Although the transcripts would have provided additional
insight into the state court proceedings, they are not
integral to the disposition of Beam's claim. The issue is
now ripe for disposition. De novo review has been
undertaken and, for the reasons set forth below, relief will
DE NOVO STANDARD OF REVIEW
the state court does not adjudicate a fairly presented claim
on the merits, deferential AEDPA standards of review under 28
U.S.C. § 2254(d) do not apply, and “the federal
habeas court must conduct a de novo review over pure
legal questions and mixed questions of law and fact.”
Appel v. Horn, 250 F.3d 203, 210 (3d Cir. 2001);
see also Bronshtein v. Horn, 404 F.3d 700, 709 n. 4
(3d Cir. 2005). Additionally, regardless of whether a state
court reaches the merits of a claim, a “federal habeas
court must afford a state court's factual findings a
presumption of correctness and . . . the presumption applies
to factual determinations of state trial and appellate
courts.” Fahy v. Horn, 516 F.3d 169, 181 (3d
RELEVANT STATE COURT BACKGROUND
March 18, 2009, Beam was charged with six counts of rape,
sexual assault, criminal attempt to commit involuntary
deviate sexual intercourse, three counts of aggravated
indecent assault, two counts of indecent assault, endangering
the welfare of a child and three counts of statutory sexual
assault. (Doc. 15-2, p. 66). On June 16, 2009, Beam sought a
psychiatric evaluation to determine competency.
(Id.) The trial court granted his motion and
appointed mental health counsel. (Id.) On December
7, 2009, following review of the psychiatric report, the
trial court deemed Beam incompetent and ordered him committed
to Torrance State Hospital for evaluation pursuant to the
Mental Health Procedures Act, 50 P.S. §§ 7402-03,
with a directive to resume criminal proceedings when
competence was restored. (Id.) On February 4, 2010,
the trial court extended Beam's commitment for an
additional sixty thirty days based on the opinion of Dr.
Daleep Rathore (“Dr. Rathore”), who opined that
further treatment was necessary. (Id.) “Dr.
Rathore noted that Beam's diagnosis at that time was
depression, not otherwise specified, and history of alcohol
March 30, 2010, the Torrance State Hospital Regional Forensic
Psychiatric Center issued a “Forensic Summary, ”
authored by Dr. Rathore, indicating, inter alia,
that Dr. Adamsky completed a psychological assessment on
February 4, 2010, and that Beam's competency had been
restored. (Doc. 20-1, pp. 7-13). The relevant portions of the
summary are as follows:
Mr. Kevin Beam is a 37-year-old, date of birth January 9,
1973, single, unemployed, 12th grade education,
supported from Social Security Disability income, who was
incarcerated at Franklin County Jail since March 18,
2009… He was transferred to Torrance State Hospital
Regional Forensic Psychiatric Center on January 27, 2010 on a
402 commitment for competency evaluation.
Mr. Beam indicated that he appropriately achieved all of his
Mr. Beam reported that he was frequently in trouble as a
child and adolescent. He acknowledged a history of lying,
stealing, and fighting. He stated that these behaviors in
addition to truancy generalized to the academic setting
leading to several school suspensions. Mr. Beam described
himself as an “A, B, and C” student and indicated
he was enrolled in learning support classes for an unknown
reason. However, he stated that he graduated from high school
with “two diplomas” for welding and academics.
Mr. Beam stated that his history of mental health treatment
began during adolescence. He reported that during this time
period, he received inpatient treatment “a few
times” at Chambersburg Hospital and one other time at a
hospital which he could not remember.
He was given MMPI-2, WASI, mini mental health status
examination, and Test of Memory Malingering (TOMM). The MMPI
is an objective inventory of personality construct and
psychopathology. Mr. Beam's scores on this assessment
measure were found to be invalid. His pattern of responding
indicates a significantly high degree of response and
unusualness even among clinical population. This suggest that
Mr. Beam was over reporting and seriously exaggerating
symptomology. His response style indicates an attempt to
portray himself in a very negative manner possibly for
secondary gain. The WASI is an assessment instrument for
evaluating one's intellectual functioning by measuring
verbal, nonverbal, and general cognitive abilities. His
full-scale IQ was 71, verbal IQ was 75, and performance IQ
was 72. The mini mental status examination score was 28 out
of a possible 30 which falls within the normal range for
orientation and neurological functioning. The TOMM is a 50
item recognition test designed to help clinicians
discriminate between malingering and genuine memory deficits.
This test includes two learning trials and retention trial.
Mr. Beam's responses indicate the possibility of
malingering. His scores on trails [sic] 1 and 2 and retention
were 5, 0, and 1 respectively. Mr. Beam's responses on
trial 1 and 2 as well as the retention trial were
significantly lower than individuals suffering from dementia,
traumatic brain injuries, aphasia, and cognitive impairment.
Furthermore, his significantly low scores also raise serious
questions about the validity of his scores on the other tests
suggesting an underlying motivation not to perform well.
Mr. Beam's performance on testing demonstrated that his
cognitive abilities fall within the borderline range of
PSYCHIATRIC CONDITION ON DISCHARGE:
Mr. Beam was casually dressed, clean in appearance, and able
to maintain good eye contact. He was oriented to person,
place and time. He was cooperative and showed no psychomotor
agitation or retardation. His speech was spontaneous,
coherent, and goal directed. His depression improved. He was
not irritable and reported no suicidal or homicidal thoughts.
He reported no auditory or visual hallucinations. He was not
showing any delusional thought process or paranoia. His
insight and judgment improved.
In my clinical opinion, he is aware of pending charges
against him. He is aware of the role of judge, public
defender, and district attorney's office. He is aware of
plea bargain and jury trial. He is aware these charges are
severe and there are severe consequences from these charges.
Again, in my clinical opinion he is competent to assist his
attorney in his legal defense. He will be transferred to
Franklin County Jail according to forensic security
arrangements. If he decompensates, then he will need a 304
commitment to stabilize his depression.
(Doc. 20-1, pp. 7-13). In early April 2010, Beam returned to
Franklin County to answer to the criminal charges. (Doc.
15-2, p. 66).
about October 15, 2010, Beam sent a letter to Franklin County
Assistant District Attorney Lauren E. Sulcove stating as
I have compiled this letter respectfully in request of a
timely responce [sic]. I am interested in coming to an
agreement between the D.A. and I and ending this case in a
timely and just fashion.
I would like to plea [sic] guilty to a misdemeaner [sic]
county sentence of 11-to-23 months with no Meagans [sic] law
or child abuse classes involved. A coruption [sic] of minor
charge is in mind. Keep in mind I have benefits to offer the
D.A. as well.
Please come to the Franklin County Jail to discuss this at
your earliest convenance [sic]. Thank you for your time and