Com. v. Ryan, R. ( 2018 )


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  • J-S58027-18
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
    :        PENNSYLVANIA
    :
    v.                          :
    :
    :
    RICHARD ALLAN RYAN                       :
    :
    Appellant             :   No. 475 WDA 2018
    Appeal from the PCRA Order March 5, 2018
    In the Court of Common Pleas of Allegheny County Criminal Division at
    No(s): CP-02-CR-0012696-2015
    BEFORE: OLSON, J., MURRAY, J., and FORD ELLIOTT, P.J.E.
    MEMORANDUM BY MURRAY, J.:                         FILED OCTOBER 09, 2018
    Richard Allan Ryan (Appellant) appeals from the order dismissing his
    petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A.
    §§ 9541-9546. We affirm.
    The PCRA court summarized the relevant factual and procedural history
    of this case as follows:
    [Appellant] was charged with Rape of a Child,[FN]1 Involuntary
    Deviate Sexual Intercourse with a Child,[FN]2 Aggravated Indecent
    Assault,[FN]3 Statutory Sexual Assault,[FN]4 Unlawful Contact with a
    Minor,[FN]5 Incest of a Minor Under 13,[FN]6 Indecent Assault of a
    Person Under 13,[FN]7 Endangering the Welfare of a Child,[FN]8
    Indecent Exposure[FN]9 and Corruption of Minors[FN]10 in relation to
    a series of incidents between [Appellant] and [the victim] when
    [the victim] was between the ages of eight (8) and 11. He
    appeared before this Court on April 27, 2016, and pled guilty to
    Rape of a Child, IDSI with a Child, Aggravated Indecent Assault,
    Incest of a Minor and Endangering the Welfare of a Child and the
    remaining charges were withdrawn. Pursuant to the agreement,
    he was immediately sentenced to a term of imprisonment of seven
    (7) to 15 years with a subsequent term of probation of five (5)
    J-S58027-18
    years. Following a hearing, [Appellant] was found to be a Sexually
    Violent Predator. No Post-Sentence Motions were filed and no
    direct appeal was taken.
    [FN]1   18 Pa.C.S.A. §3121(c)
    [FN]2   18 Pa.C.S.A. §3123(b)
    [FN]3   18 Pa.C.S.A. §3125(b)
    [FN]4   18 Pa.C.S.A. §3122.1(b)
    [FN]5   18 Pa.C.S.A. §6318(a)(1)
    [FN]6   18 Pa.C.S.A. §4302(b)(1)
    [FN]7   18 Pa.C.S.A. §3126(a)(7)
    [FN]8   18 Pa.C.S.A. §4304(a)
    [FN]9   18 Pa.C.S.A. §3127(a)
    [FN]10   18 Pa.C.S.A. §6301(a)(1)
    No further action was taken until May 10, 2017, when [Appellant]
    filed a pro se Post Conviction Relief Act Petition.       Rachel
    Santoriella, Esquire, was appointed to represent [Appellant], but
    she later filed a Turner “No-Merit” Letter and sought[,] and was
    granted[,] permission to withdraw. After giving the appropriate
    notice of its intent to do so, this Court dismissed the Petition
    without a hearing. Scott Coffey, Esquire, was appointed to
    represent [Appellant] on appeal and this appeal followed.
    PCRA Court Opinion, 7/9/18, at 1-2.
    Appellant presents six issues for our review (reordered for ease of
    discussion):
    1. APPELLANT WAS DENIED PRETRIAL DISCOVERY/DISCLOSURE
    MATERIALS[ ], WAS NOT INFORMED OF THE ACCUSATIONS
    AGAINST HIM, AND THEREFORE HE COULD MAKE NO
    INFORMED DECISION REGARDING HIS PLEA, WHICH WAS
    UNKNOWING, INVOLUNTARY AND UNINTELLIGENTLY MADE.
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    2. APPELLANT WAS DENIED FUNDAMENTAL FAIRNESS AND
    CONSTITUTIONAL PROTECTIONS BEFORE AND AT TRIAL TIME.
    3. TRIAL COUNSEL ESSENTIALLY ABANDONED APPELLANT AND
    FAILED TO SUBPOENA MATERIAL AND EXPERT WITNESSES,
    AND FOR FAILING TO GET A PRIVATE INVESTIGATOR
    APPOINTED.
    4. DID THE TRIAL COURT ERR IN DENYING APPELLANT’S PCRA
    PETITION SINCE THE DISMISSAL WAS A MISCARRIAGE OF
    JUSTICE SINCE NO EVIDENTIARY HEARING WAS HELD AND
    APPELLANT WAS NOT PERMITTED TO FILE HIS OWN BRIEF
    SINCE APPELLANT WAS ABANDONED BY PCRA COUNSEL?
    5. APPELLANT    WAS  A   VICTIM  OF   PROSECUTORIAL
    MISCONDUCT/SELECTIVE PROSECUTION AND AN INDUCED
    GUILTY PLEA.
    6. APPELLANT’S  SENTENCE   WAS   ILLEGAL   SINCE  THE
    SENTENCING   COURT   LACKED    CONSTITUTIONAL   OR
    STATUTORY POWER TO IMPOSED [SIC] IT, AND THEREFORE
    THE TRIAL COURT HAD NO JURISDICTION TO IMPOSE [HIS]
    SENTENCE.
    Appellant’s Brief at 3-4.
    “In reviewing the denial of PCRA relief, we examine whether the PCRA
    court’s determination is supported by the record and free of legal error.”
    Commonwealth v. Fears, 
    86 A.3d 795
    , 803 (Pa. 2014) (quotations and
    citations omitted).   “To be entitled to PCRA relief, [an] appellant must
    establish, by a preponderance of the evidence, his conviction or sentence
    resulted from one or more of the enumerated errors in 42 Pa.C.S.[A.] §
    9543(a)(2)[.]” 
    Id. Appellant’s first
    three issues are related, and thus, we address them
    together. Appellant’s issues challenge plea counsel’s effectiveness as it relates
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    to his guilty plea.   In deciding ineffective assistance of counsel claims, we
    begin with the presumption that counsel rendered effective assistance.
    Commonwealth v. Bomar, 
    104 A.3d 1179
    , 1188 (Pa. 2014). To overcome
    that presumption, the petitioner must establish: “(1) the underlying claim has
    arguable merit; (2) no reasonable basis existed for counsel’s action or failure
    to act; and (3) the petitioner suffered prejudice as a result of counsel’s error,
    with prejudice measured by whether there is a reasonable probability that the
    result of the proceeding would have been different.” 
    Id. (citation omitted).
    To demonstrate prejudice in an ineffective assistance of counsel claim, “the
    petitioner must show that there is a reasonable probability that, but for
    counsel’s unprofessional errors, the result of the proceeding would have been
    different.” Commonwealth v. King, 
    57 A.3d 607
    , 613 (Pa. 2012). If the
    petitioner fails to prove any of these prongs, the claim is subject to dismissal.
    
    Bomar, 104 A.3d at 1188
    .
    “Allegations of ineffectiveness in connection with the entry of a guilty
    plea will serve as a basis for relief only if the ineffectiveness caused the
    defendant to enter an involuntary or unknowing plea.” Commonwealth v.
    Moser, 
    921 A.2d 526
    , 531 (Pa.Super.2007) (quotations and citation omitted).
    “Where the defendant enters his plea on the advice of counsel, the
    voluntariness of the plea depends on whether counsel’s advice was within the
    range of competence demanded of attorneys in criminal cases.”                
    Id. (quotations and
    citations omitted).       “Thus, to establish prejudice, the
    defendant must show that there is a reasonable probability that, but for
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    counsel’s errors, he would not have pleaded guilty and would have insisted on
    going to trial.” Commonwealth v. Barndt, 
    74 A.3d 185
    , 192 (Pa. Super.
    2013) (quotations and citations omitted). “The reasonable probability test is
    not a stringent one; it merely refers to a probability sufficient to undermine
    confidence in the outcome.” 
    Id. (quotations and
    citations omitted).
    With respect to valid guilty pleas, this Court has explained:
    A valid guilty plea must be knowingly, voluntarily and intelligently
    entered. The Pennsylvania Rules of Criminal Procedure mandate
    that pleas be taken in open court, and require the court to conduct
    an on-the-record colloquy to ascertain whether a defendant is
    aware of his rights and the consequences of his plea. Specifically,
    the court must affirmatively demonstrate the defendant
    understands: (1) the nature of the charges to which he is pleading
    guilty; (2) the factual basis for the plea; (3) his right to trial by
    jury; (4) the presumption of innocence; (5) the permissible ranges
    of sentences and fines possible; and (6) that the court is not
    bound by the terms of the agreement unless the court accepts the
    agreement. This Court will evaluate the adequacy of the plea
    colloquy and the voluntariness of the resulting plea by examining
    the totality of the circumstances surrounding the entry of that
    plea.
    Commonwealth v. Kelley, 
    136 A.3d 1007
    , 1013 (Pa. Super. 2016) (citations
    omitted).
    Appellant argues that his guilty plea was not knowing, voluntary, and
    intelligent due to plea counsel’s ineffectiveness. Appellant contends that he
    had no choice but to plead guilty because plea counsel did not pursue
    witnesses who would have supported Appellant’s version of the events or
    obtain discovery materials so Appellant could fully understand the allegations
    against him and properly prepare for trial. Appellant’s Brief at 13-14.
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    Based upon our review of the certified record, including the transcript of
    Appellant’s guilty plea hearing and his written colloquy, we conclude that
    Appellant’s guilty plea was knowing, voluntary, and intelligent. The record
    reflects that the trial court informed Appellant of the nature of the charges to
    which he pled guilty, the factual basis for the plea, the sentences, and that it
    was accepting the negotiated sentence. N.T. 2/6/13, at 5-24; Written Guilty
    Plea Colloquy, 4/27/16, at 2-11.
    Importantly, during the oral colloquy, Appellant indicated that he was
    satisfied with counsel’s representation. 
    Id. at 7.
    Appellant acknowledged that
    he had decided to exchange his rights in exchange for a favorable sentence of
    7 to 15 years of incarceration for a rape of a child charge where the victim
    unequivocally identified Appellant as the perpetrator. 
    Id. Appellant stated
    that he understood the ramifications of pleading guilty and that he was
    entering his plea on his own volition. 
    Id. He cannot
    now contradict these
    statements.
    By arguing that plea counsel’s ineffectiveness forced him into pleading
    guilty, Appellant implies that his responses to the plea colloquies were
    untruthful. A defendant who elects to plead guilty, however, “is bound by the
    statements he makes in open court while under oath and he may not later
    assert grounds for withdrawing the plea which contradict the statements he
    made at his plea colloquy.” Commonwealth v. Turetsky, 
    925 A.2d 876
    ,
    881 (Pa. Super. 2007) (quotations and citations omitted).           “A criminal
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    defendant who elects to plead guilty has a duty to answer questions
    truthfully.” 
    Id. Accordingly, because
    the record supports the PCRA court’s
    determination that Appellant’s guilty plea was knowing, voluntary, and
    intelligent, we conclude that the PCRA court did not err in dismissing
    Appellant’s claims.
    Next, Appellant argues that the PCRA court erred in dismissing his case
    without a hearing. This Court has explained:
    [T]he right to an evidentiary hearing on a post-
    conviction petition is not absolute. It is within the
    PCRA court’s discretion to decline to hold a hearing if
    the petitioner’s claim is patently frivolous and has no
    support either in the record or other evidence. It is
    the responsibility of the reviewing court on appeal to
    examine each issue raised in the PCRA petition in light
    of the record certified before it in order to determine
    if the PCRA court erred in its determination that there
    were no genuine issues of material fact in controversy
    and in denying relief without conducting an
    evidentiary hearing.
    Commonwealth v. Walls, 
    993 A.2d 289
    , 295 (Pa. Super. 2010) (internal
    citations and brackets omitted). If the PCRA court “can determine without an
    evidentiary hearing that one of the prongs cannot be met, then no purpose
    would be advanced by holding an evidentiary hearing.” Commonwealth v.
    Jones, 
    942 A.2d 903
    , 906 (Pa. Super. 2008).
    Here, Appellant argues that an evidentiary hearing was necessary for
    him to present evidence proving his claim that his guilty plea was not knowing,
    voluntary, and intelligent. As discussed above, the evidence Appellant would
    have presented in support of this claim would have been testimony that
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    directly contradicted the statements he made during his guilty plea colloquy.
    This is not an avenue for relief. There were no genuine issues of material fact
    in controversy and no purpose would have been served by holding a hearing.
    Accordingly, the PCRA court did not err in denying Appellant’s petition without
    a hearing.
    For his fifth issue, Appellant baldly asserts that he “was a victim of
    prosecutorial misconduct.” Appellant’s Brief at 12. Appellant, however, has
    failed to provide any legal argument on this issue beyond a citation pertaining
    to the standard of review for the denial of a PCRA petition. 
    Id. at 13.
    It is
    well settled that the argument portion of an appellate brief must be developed
    with pertinent discussion of the issue, which includes citations to relevant
    authority.     See Pa.R.A.P. 2119(a) (requiring that an appellant develop an
    argument with citation to and analysis of relevant legal authority); see also
    Commonwealth v. Genovese, 
    675 A.2d 331
    , 334 (Pa. Super. 1996) (stating
    that “[t]he argument portion of an appellate brief must be developed with a
    pertinent discussion of the point which includes citations to the relevant
    authority”).
    In Commonwealth v. B.D.G., 
    959 A.2d 362
    (Pa. Super. 2008), a panel
    of this Court offered the following relevant observation regarding the proper
    formation of the argument portion of an appellate brief:
    In an appellate brief, parties must provide an argument as to each
    question, which should include a discussion and citation of
    pertinent authorities. This Court is neither obliged, nor even
    particularly equipped, to develop an argument for a party. To do
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    so places the Court in the conflicting roles of advocate and neutral
    arbiter. When an appellant fails to develop his issue in an
    argument and fails to cite any legal authority, the issue is waived.
    
    Id. at 371-72
    (internal citations omitted). Thus, failure to cite case law or
    other legal authority in support of an argument results in waiver of the claim.
    Instantly, Appellant’s argument pertaining to this issue contains no
    citations to relevant legal authority beyond the cursory legal citation at the
    end of his argument. Appellant’s Brief at 13. Rather, the argument portion
    of Appellant’s brief consists of broad statements and allegations but no
    analysis with relevant law. This failure to develop a legal argument precludes
    appellate review. We conclude that this issue is waived.
    In his final claim, Appellant contends that the PCRA court erred “since
    Appellant’s   sentence   was   illegal    since   the   sentencing   court   lacked
    constitutional or statutory power to imposed [sic] it, and therefore the trial
    court had no jurisdiction to impose [the] sentence.” Appellant’s Brief at 14.
    Appellant essentially argues that, although the trial court did not impose a
    statutory maximum sentence upon him, “Appellant felt that [his prison
    sentence of 7 to 15 years for rape of a child] was certainly excessive.” 
    Id. Appellant attempts
    to couch his challenge to the discretionary aspects
    of his sentence as a legality of sentence issue. It is settled that the PCRA does
    not provide an appellant relief for discretionary aspects of sentence claims.
    See Commonwealth v. Fowler, 
    930 A.2d 586
    , 593 (Pa. Super. 2007)
    (“Challenges to the discretionary aspects of sentencing are not cognizable
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    under the PCRA.”) (citations omitted), appeal denied, 
    944 A.2d 756
    (Pa.
    2008); see also Commonwealth v. Jordan, 
    772 A.2d 1011
    , 1016 (Pa.
    Super. 2001) (observing that “[t]his Court’s case law has stated that a
    challenge to the discretionary aspects of sentencing is a matter that must be
    reviewed in the context of a direct appeal and cannot be reviewed in the
    context of the PCRA.”); see also 42 Pa.C.S.A. § 9543(a)(2).        Therefore,
    Appellant’s claim does not merit relief because it is not cognizable under the
    PCRA.
    Order affirmed.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 10/9/2018
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