Com. v. Kin, M. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MICHAEL KIN :
:
Appellant : No. 1070 EDA 2020
Appeal from the Order Entered April 2,2020,
In the Court of Common Pleas of Pike County
Criminal Division at No(s): CP-52-CR-0000350-2017
BEFORE: PANELLA, P.J., McCAFFERY, J., and STEVENS, P.J.E.*
MEMORANDUM BY PANELLA, P.J.: FILED: MAY 7, 2021
Michael Kin appeals from the order of the Court of Common Pleas of Pike
County denying his first petition filed pursuant to the Post Conviction Relief
Act (“PCRA”), 42 Pa. C.S.A. §§ 9541-9546. The PCRA court denied the petition
after holding a hearing on, and subsequently rejecting, Kin’s claim that his
plea counsel had been ineffective for failing to seek an evaluation of Kin’s
mental competence. After careful review of the entire record, part of which
this Court had to obtain in the wake of PCRA counsel’s failure to provide a
complete record on appeal, we affirm.
Kin pled guilty to involuntary deviate sexual intercourse and
intimidation, retaliation or obstruction in a child abuse case after sexually
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* Former Justice specially assigned to the Superior Court.
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assaulting a seven-year-old boy. The court sentenced Kin to ten to 20 years’
imprisonment on May 10, 2018. Kin was represented by privately retained
counsel during his plea and at sentencing. He did not file a direct appeal.
Kin did file a timely pro se PCRA petition. He then subsequently retained
private counsel. Counsel filed an amended, and then a second amended, PCRA
petition, alleging that plea counsel had been ineffective for failing to have Kin’s
mental competence evaluated prior to allowing him to enter a guilty plea.
The PCRA court held an evidentiary hearing on Kin’s ineffectiveness
claim on January 10, 2020. At the hearing, Dr. Richard Fischbein, a
psychiatrist hired by Kin, testified about his findings on Kin’s mental
competency. Kin’s plea counsel also testified at the hearing, recounting his
observations regarding Kin’s mental acuity and the reasons why he did not
see the need to have Kin’s competency evaluated. The PCRA court took the
matter under advisement.
On February 21, 2020, Kin filed a pro se request for the transcript from
the PCRA hearing. As Kin was represented by counsel, the PCRA court denied
the request but sent a copy of the request to counsel and granted counsel ten
days to “review and determine whether to adopt the attached request and file
a proper request on behalf of [Kin].” PCRA Court Order, 3/9/20, at 1. Kin sent
another pro se request for the transcript on March 13, 2020. He then followed
that request with two pro se letters to the court on March 23 and 30 of 2020,
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both of which inquired whether his counsel had filed a request for the
transcript on his behalf.
The PCRA court entered an order denying the second amended PCRA
petition on April 2, 2020. The court specifically noted in its order that, at the
time of the order, it had not received any request from counsel for the January
10, 2020 PCRA hearing transcript and therefore no such transcript had been
prepared. The court then went on to detail the testimony it had heard from
Dr. Fischbein and plea counsel at the hearing. Based on that testimony, the
court determined that Kin had failed to show that plea counsel had no
reasonable basis for declining to have Kin evaluated for competency. See
PCRA Court Order, 4/2/20, at 5-7. The court therefore rejected Kin’s
ineffectiveness claim and dismissed Kin’s second amended PCRA petition.
Kin filed a timely pro se notice of appeal, which also specifically
requested the transcript from the January 10, 2020 hearing.1 The PCRA court
ordered Kin to file a Pa.R.A.P. 1925(b) statement of errors complained of on
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1 Kin’s pro se notice of appeal did not include the April 2, 2020 date of the
PCRA court’s order denying his petition from which Kin was appealing. This
Court issued a rule to show cause why the appeal should not be quashed on
the basis of this omission. Kin did not respond, and this Court issued an order
dismissing the rule-to-show-cause order and referring the matter to this
panel. We see no reason to quash the appeal on this basis. The notice of
appeal was timely filed and it is clear Kin is appealing from the April 2, 2020
order denying his PCRA petition. See Pa.R.A.P. 902. Further, Kin’s act in filing
the notice of appeal pro se is an exception to the general prohibition on hybrid
representation. See Commonwealth v. Williams, 151 A.3d 621, 623-24
(Pa. Super. 2016).
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appeal. Counsel complied, filing a Pa.R.A.P. 1925(b) statement on behalf of
Kin. In response, the PCRA court issued a Pa.R.A.P. 1925(a) opinion that
concluded that it had properly found Kin’s ineffectiveness claim regarding the
need for a mental competency evaluation to be without merit.
Kin’s appeal is now before us. As an initial matter, we note that the
record did not include a transcript of the PCRA hearing upon its certification
to this Court.
In Kin’s appellate brief, counsel does not explicitly acknowledge that the
PCRA hearing transcript was never made part of the record. Instead, in making
the claim that Dr. Fischbein’s findings refute the PCRA court’s determination
that plea counsel was not ineffective for seeking a competency evaluation,
counsel cites to Dr. Fischbein’s written independent psychiatric evaluation of
Kin rather than to any notes of testimony. While the brief does acknowledge
in passing that counsel was notified of Kin’s pro se request for the transcript,
counsel does not in any way attempt to explain why he did not follow up on
that request or otherwise ensure that the transcript was made a part of the
certified record.
The Commonwealth argues that this Court should decline to review Kin’s
claim because of this failure to include the PCRA hearing transcript in the
certified record. The Commonwealth asserts that this Court, without the
benefit of this transcript, does not have the ability to conduct a meaningful
review of Kin’s claim. This is especially true, the Commonwealth maintains,
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when the PCRA court’s decision to deny relief was premised on credibility
determinations. The Commonwealth points out that the burden is
unequivocally on the appellant to ensure the certified record is complete and
contains the materials necessary for this Court to perform its duty. See
Pa.R.A.P. 1911.
The Commonwealth is clearly correct that it was Kin’s burden to have
the notes of testimony from the PCRA hearing transcribed and incorporated in
the record. The Commonwealth is also correct that this Court would not be
able to properly review Kin’s claim without access to this transcript.
Nonetheless, we recognize that the circumstances of this case are unusual.
Kin’s first of several pro se requests for the transcription of the PCRA hearing
was forwarded to counsel with instructions for counsel to file a proper request
for the transcript within ten days if deemed warranted. Counsel did not do so,
despite the transcript’s obvious importance to Kin’s claim on appeal. Kin
continued to file pro se inquiries into the status of the transcription and once
again requested the transcript in his pro se notice of appeal. However, there
is no indication in the record that counsel ever took any steps to ensure that
the PCRA hearing was transcribed and made a part of the record. Counsel
offers no explanation for his inaction.
In light of these circumstances, this Court made an informal inquiry
regarding the transcript to our Prothonotary’s Office, which was able to obtain
a copy of that transcript. As we are now able to review the PCRA hearing
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transcript, we will proceed to the merits of Kin’s claim. However, we do so
only after reminding counsel that it remains his responsibility, as appellate
counsel, to provide a record to this Court that allows us to review the claims
raised by the clients he represents.
In his first two claims, Kin argues that the PCRA court erred by
concluding that counsel was not ineffective for failing to have Kin’s mental
competency evaluated. He contends that counsel was aware that Kin is
missing part of his cerebellum and has an IQ of 72. According to Kin, this
knowledge should have prompted plea counsel to have Kin’s competency
assessed to see if he was competent to enter a valid guilty plea. Kin further
argues that Dr. Fishbein’s testimony, which included his opinion that Kin was
not competent at the time he pled guilty, makes it “inconceivable that [plea
counsel]’s inaction in getting [Kin] evaluated [was] reasonable.” Appellant’s
Brief at 24. Kin argues that the PCRA court erred in reaching a different
conclusion and denying his PCRA petition on the basis that plea counsel had
not been ineffective for failing to have Kin’s mental competence evaluated.
This claim does not warrant any relief.
When we review the denial of a PCRA petition, we examine whether the
PCRA court's determinations are supported by the record and free of legal
error. See Commonwealth v. Roney, 79 A.3d 595, 603 (Pa. 2013). The
PCRA court's credibility determinations, when supported by the record, are
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binding on this Court. See id. However, we apply a de novo standard of review
to the PCRA court's legal conclusions. See id.Counsel is presumed to have been effective. See Commonwealth v.
Brooks, 839 A.2d 245, 248 (Pa. 2003). In order to overcome that
presumption and prevail on a claim of ineffectiveness, Kin must establish that:
(1) the underlying claim has arguable merit; (2) counsel had no reasonable
basis for his conduct; and (3) he was prejudiced by counsel's ineffectiveness,
i.e. there is a reasonable probability that because of the act or omission in
question, the outcome of the proceeding would have been different. See id.In determining whether counsel’s actions or omissions were reasonable, the
question is not whether there were other more logical courses of action
counsel could have pursued; rather, the question is whether counsel’s
decisions had any reasonable basis. See Commonwealth v. Chmiel, 30 A.3d
1111, 1127 (Pa. 2011).
The ineffectiveness claim Kin raises here challenges plea counsel’s
decision not to seek an evaluation of Kin’s mental competency. A defendant
is presumed to be competent and bears the burden of proving otherwise. The
mere fact that a defendant has been diagnosed with a mental disorder does
not render him incompetent to plead guilty. See Commonwealth v. Hughes,
555 A.2d 1264, 1271 (Pa. 1989); Commonwealth v. Santiago, 855 A.2d
682, 697 (Pa. 2004) (opinion announcing judgment of court). Rather, to prove
he was incompetent to stand trial or plead guilty, a defendant must prove he
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was either unable to understand the nature of the proceedings against him or
unable to participate in his own defense. See Commonwealth v. Bomar,
104 A.3d 1179, 1196 (Pa. 2014); Commonwealth v. Watkins, 108 A.3d
692, 703 (Pa. 2014).
At the PCRA hearing, the court heard from Dr. Fischbein regarding Kin’s
mental competence. Dr. Fischbein testified that he had been retained by Kin
to conduct an independent psychiatric evaluation and met with Kin at SCI
Fayette to do so. Dr. Fischbein stated in his report that it was clear “early on”
that Kin had “somewhat limited intellect.” Fischbein’s Independent Psychiatric
Report, 6/13/19, at 7. Dr. Fischbein testified that Kin had a full-scale IQ of 72,
which put him in the borderline intellectual functioning range. See N.T.
Hearing, 1/10/20, at 10, 11, 16. He also testified that Kin was missing part of
his left cerebellum, which is the part of the brain which affects balance, speech
and coordination. See id. at 9, 17. This left Kin with a stutter and “clumsy.”
See id. at 17.
Dr. Fischbein testified that he utilized the McGarry criteria to assess Kin’s
competency.2 See id. at 26. The PCRA court elaborated on Dr. Fischbein’s
testimony regarding the McGarry criteria:
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2 The McGarry Criteria “breaks down capacity or competency into thirteen
individual questions that address whether or not the individual understands
the charges he is facing, whether or not he/she understands the different
individuals in the courtroom and their roles and whether or not the defendant
has the ability to aid his attorney in his defense.” Fischbein Independent
Psychiatric Report, 6/30/19, at 13.
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Dr. Fischbein’s evaluation of the McGarry criteria to assess
competency indicated that [Kin] had a basic understanding of the
people in the courtroom, was unsure of how a jury works and the
judge’s responsibilities, understood the charges against him, and
appreciated the seriousness of those charges. Dr. Fischbein also
testified that [Kin’s] passivity, strong desire to please others, and
distaste for being perceived as stupid by others would likely result
in lack of capacity. However, that capacity could be restored and
sustained, even for trial, by an attorney who understands [Kin’s]
condition and aggressively questions [Kin’s] understanding.
PCRA Court Order, 4/2/20, at 6. In his report, Dr. Fischbein stated that it was
his opinion that Kin did not maintain competence at the time of his plea
agreement. However, Dr. Fischbein stated in his report that it was also his
opinion that Kin’s competency could likely be restored with some assistance.
See Fischbein’s Independent Psychiatric Report, 6/13/19, at 15.
Following Dr. Fischbein’s testimony at the hearing, Kin’s plea counsel
took the stand. Counsel testified that Kin’s parents were very involved in Kin’s
case, and that they informed counsel from the outset that Kin was cognitively
impaired and provided him with evaluations regarding those impairments and
his IQ. See N.T. Hearing, 1/10/20, at 57, 64. Given this knowledge, counsel
testified:
When I met with [Kin] and each of the times I met with [Kin] I
wanted to determine whether or not he understood what was
going on, who the parties were, who the police were, who the
prosecuting attorney was, who the judge was, et cetera. [A]nd
through my various conversations with him it became abundantly
clear to me that he did understand what was going on, that he
was capable of aiding in his defense.
Id. at 64.
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Counsel then expanded on his reasons for not having Kin evaluated for
competency. Specifically, as noted by the PCRA court, counsel testified that
he met with Kin four or five times. See id. at 56. Counsel indicated that Kin
actively participated in the planning of his defense. To that end, counsel
testified that Kin offered a defense which he asked to be advanced on his
behalf, though he changed his mind after deciding to accept responsibility for
his crimes. See id. at 64-65, 67. Counsel recalled that Kin had proposed a
counter-offer to the amount of jail time in the Commonwealth’s initial plea
offer. See id. at 65. Counsel also testified that Kin sent numerous
correspondences to him, specifically asked him not to share certain
information with his parents, and did not give the impression that he was
merely “yessing” him without an understanding as to what he was doing. See
id. at 54, 67, 68.
Counsel also discussed meeting with Kin to complete his written guilty
plea colloquy. See id. at 60-62. Counsel testified that he went over the
colloquy in detail with Kin, reading each section to him and adding information
as provided by Kin. See id. at 61, 62, 69. He stated that Kin initialed and
signed the colloquy where indicated. See id. at 62. Counsel testified that it
was his impression that Kin understood the potential sentences involved and
the terms of the agreement. See id. at 65.
Based on all of his interactions with Kin, counsel testified that he came
to the conclusion that Kin “knew exactly what was happening and what he was
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doing and could participate in his defense.” Id. at 65; see also id. at 62-63.
As such, counsel determined that he did not see the need for Kin to be
evaluated for purposes of establishing that he was competent to enter into a
valid guilty plea. See id. at 62-63. Counsel recounted that he discussed this
conclusion with Kin’s parents. See id. at 66.
The PCRA court considered both plea counsel’s and Dr. Fischbein’s
testimony, along with the entire record, and reached the conclusion that Kin
had failed to establish that plea counsel had no reasonable basis for failing to
have Kin evaluated for mental competency. The court specifically found plea
counsel’s testimony was credible and established that Kin “participated in his
own defense, carefully considered his situation and adapted when appropriate,
and in general did not present symptoms of incompetence.” PCRA Court Order,
4/2/20, at 7. Moreover, the PCRA court pointed out that Kin had not raised
any issues at the guilty plea colloquy regarding his ability to understand the
guilty plea or the proceedings.3 See id. The court also noted that Kin had filed
several pro se documents, including the pro se request for transcripts which
was proper in every way except for being filed pro se instead of through
counsel. See id. All of this led the court to conclude that plea counsel’s
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3The PCRA court was the same court that had accepted Kin’s guilty plea as
knowingly and voluntarily made. At the guilty plea colloquy, the court
specifically noted that Kin had “referenced certain conditions in the mental
health portion of the [written] colloquy.” Guilty Plea Colloquy, 2/1/18, at 5.
The court then asked Kin if “those conditions affect your ability at all to
understand what you are doing here today?” Id. Kin responded “no.” Id.
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“decision not to have [Kin] evaluated was entirely reasonable.” PCRA Court
Opinion, 6/19/20, at 6.
Our own thorough review of the record reveals that the PCRA court’s
findings are supported by the record. As the PCRA court made clear, the
burden was on Kin to establish that plea counsel had no reasonable basis for
failing to have Kin’s competency evaluated. The PCRA court found, however,
that plea counsel’s credible testimony established that his interactions with
Kin provided him with a reasonable basis for not seeking a mental competency
evaluation. The PCRA court therefore concluded that counsel had not been
ineffective for declining to do so. We see no error in the court’s conclusion in
this regard. Accordingly, as we are bound by the court’s credibility findings,
and conclude that the court’s determinations are both supported by the record
and free of legal error, we will not disturb the PCRA court’s order finding that
Kin’s ineffectiveness claim fails to provide him with any basis for relief. See
Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (holding
this Court will not disturb a PCRA court’s ruling if it is supported by the record
and free of legal error).
In his final claim, Kin argues that his plea was not knowing and
voluntary. As the PCRA court found, however, Kin did not raise this issue in
his amended PCRA petitions. Instead, he only raised his claim that counsel
was ineffective for failing to have him evaluated for competency. Accordingly,
we agree with the PCRA court that Kin’s claim on appeal that his plea was not
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knowingly entered is waived. See Commonwealth v. Albrecht, 720 A.2d
693, 706 (Pa. 1998) (holding that issues not raised in an amended PCRA
petition are waived).
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/7/21
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