Com. v. Maisey, D.

J-A10024-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DENNIS GERALD MAISEY :
:
Appellant : No. 1238 MDA 2021
Appeal from the PCRA Order Entered September 9, 2021,
in the Court of Common Pleas of Columbia County,
Criminal Division at No(s): CP-19-CR-0000145-2019.
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DENNIS GERALD MAISEY :
:
Appellant : No. 1239 MDA 2021
Appeal from the PCRA Order Entered September 9, 2021,
in the Court of Common Pleas of Columbia County,
Criminal Division at No(s): CP-19-CR-0000146-2019.
BEFORE: PANELLA, P.J., KUNSELMAN, J., and KING, J.
MEMORANDUM BY KUNSELMAN, J.: FILED: SEPTEMBER 13, 2022
Dennis Gerald Maisey appeals from the order denying his first petition
for relief pursuant to the Post Conviction Relief Act (“PCRA”). 42 Pa.C.S.A. §§
9541-46. In addition, PCRA counsel has filed a motion to withdraw. We affirm
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the order denying Maisey post-conviction relief and grant PCRA counsel’s
motion to withdraw.
On July 5, 2019, Maisey entered a guilty plea at multiple dockets to
crimes including robbery of a local bank and the armed robbery of a local
dollar store. Thereafter, the trial court sentenced him to a mitigated sentence
at four of the dockets. Although the trial court ran these sentences
consecutively, the sentences on the seven remaining dockets were imposed
concurrently. This resulted in an aggregate sentence of 90 to 240 months of
imprisonment. Maisey did not file a timely post-sentence motion or a direct
appeal.1
On July 23, 2020, Maisey filed a pro se PCRA petition. Thereafter, the
PCRA court appointed counsel, who filed a supplemental petition. On August
27, 2021, the court held an evidentiary hearing at which Maisey, and trial
counsel testified. By order entered September 9, 2021, the PCRA court
dismissed Maisey’s petition. Maisey filed a timely appeal at each docket, which
we consolidated. Instead of filing a Pa.R.A.P. 1925(b) statement, PCRA
counsel filed notice of his intent to file an Anders2 brief and motion to
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1 On November 1, 2019, and February 24, 2020, Maisey filed pro se motions
for reconsideration of sentence. It appears no action was taken on either of
these filings prior to Maisey’s filing of a petition for post-conviction relief.
2 Anders v. California, 386 U.S. 738 (1967).
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withdraw. Based on this filing, the PCRA court did not file a Pa.R.A.P. 1925(a)
opinion.
In a prior memorandum, we noted that, despite two orders from this
Court, PCRA counsel failed to file a motion to withdraw. We therefore
remanded this case so that the PCRA court could appoint new counsel who
“shall file either an advocate’s brief or a Turner/Finley “no merit” letter and
petition to withdraw. Commonwealth v. Maisey, 2022 WL 2112905 (Pa.
Super. 2022).
Following remand, the PCRA court appointed counsel. PCRA counsel
then filed an Anders brief and a motion to withdraw. Compliance with
Anders applies to counsel who seeks to withdraw from representation on
direct appeal. Anders imposes stricter requirements than those imposed
when counsel seeks to withdraw during the post-conviction process pursuant
to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). See
Commonwealth v. Fusselman, 866 A.2d 1109, 1111 n.3 (Pa. Super. 2004).
Thus, we will assess counsel’s assertion that the issues Appellant wishes to
raise have no merit under a Turner/Finley analysis.
Before we address the merits of the issues Maisey wished to raise on
appeal however, we must first determine whether PCRA counsel’s filing
complies with the procedural requirements of Turner and Finley. A
Turner/Finley “no merit” letter must: 1) detail the nature and extent of
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counsel’s review of the case; 2) list each issue the petition wishes to have
reviewed; and 3) explain counsel’s reasoning for concluding that the
petitioner’s issues are meritless. Commonwealth v. Knecht, 219 A.3d 689,
691 (Pa. Super. 2019) (citation omitted). “Counsel must also send a copy of
the [letter] to the petitioner, along with a copy of the petition to withdraw,
and inform the petitioner of the right to proceed pro se or to retain new
counsel. Id. If these requirements are met, “we then conduct an independent
review of the petitioner’s issues.” Id.Here, PCRA counsel has complied with the Turner/Finley
requirements. Within his brief, PCRA counsel provides a detailed review of
Maisey’s case. The brief also lists the issues Maisey wished to pursue and
explains counsel’s reasons for concluding that they are meritless. As part of
his withdrawal motion, PCRA counsel has attached a letter addressed to
Maisey informing him of counsel’s motion to withdraw, attaching the brief, and
explaining to him of his right to retain private counsel or proceed pro se. Given
PCRA counsel’s compliance, we must now determine if counsel’s assessment
of Maisey’s claims is supported by the record.
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On appeal, Maisey wished to challenge trial counsel’s3 ineffectiveness in
failing to: 1) challenge the validity of his guilty plea; 2) file a motion for
sentence reconsideration; and 3) file a direct appeal.
Our scope and standard of review is well settled:
In PCRA appeals, our scope of review is limited to the
findings of the PCRA court and the evidence on the record
of the PCRA court's hearing, viewed in the light most
favorable to the prevailing party. Because most PCRA
appeals involve questions of fact and law, we employ a
mixed standard of review. We defer to the PCRA court's
factual findings and credibility determinations supported by
the record. In contrast, we review the PCRA court's legal
conclusions de novo.
Commonwealth v. Reyes-Rodriguez, 111 A.3d 775, 779 (Pa. Super. 2015)
(citations omitted).
Maisey’s claims allege the ineffective assistance of trial counsel. To
obtain relief under the PCRA premised on a claim that counsel was ineffective,
a petitioner must establish, by a preponderance of the evidence, that counsel's
ineffectiveness so undermined the truth-determining process that no reliable
adjudication of guilt or innocence could have taken place. Commonwealth
v. Johnson, 966 A.2d 523, 532 (Pa. 2009). “Generally, counsel’s
performance is presumed to be constitutionally adequate, and counsel will
only be deemed ineffective upon a sufficient showing by the petitioner.” Id.This requires the petitioner to demonstrate that: (1) the underlying claim is
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3Maisey was represented by two attorneys during the pertinent proceedings.
For ease of discussion, our use of trial counsel refers to one or both.
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of arguable merit; (2) counsel had no reasonable strategic basis for his or her
action or inaction; and (3) counsel’s act or omission prejudiced the petitioner.
Id. at 533.
Maisey first argues that trial counsel was ineffective for advising him to
enter a guilty plea based upon erroneous advice. Regarding claims of
ineffectiveness in relation to the entry of plea, we note:
Ineffective assistance of counsel claims arising from the plea
bargaining-process are eligible for PCRA review. 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 into an involuntary or
unknowing plea. 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.
The standard for post-sentence withdraw of guilty pleas
dovetails with the arguable merit/prejudice requirements
for relief based on a claim of ineffective assistance of plea
counsel, . . . under which the defendant must show that
counsel’s deficient stewardship resulted in a manifest
injustice, for example, by facilitating the entry of an
unknowing, involuntary, or unintelligent plea. This standard
is equivalent to the “manifest injustice” standard applicable
to all post-sentence motions to withdraw a guilty plea.
Commonwealth v. Kelley, 136 A.3d 1007, 1012-13 (Pa. Super. 2016)
(citations omitted).
Moreover, “[o]ur law presumes that a defendant who enters a guilty
plea was aware of what he was doing,” and “[h]e bears the burden of proving
otherwise.” Commonwealth v. Pollard, 832 A.2d 517, 523 (Pa. Super.
2003) (citations omitted).
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The longstanding rule of Pennsylvania law is that a
defendant may not challenge his guilty plea by asserting
that he lied while under oath, even if he avers that counsel
induced the lies. A person who elects to plead guilty is
bound by the statements he makes in open court while
under oath and may not later assert grounds for
withdrawing the plea which contradict the statements he
made at his plea colloquy.
Id. On appeal, this Court evaluates the adequacy of the plea colloquy and
the voluntariness of the resulting plea by looking at the totality of the
circumstances. Commonwealth v. Yeomans, 24 A.3d 1044, 1047 (Pa.
Super. 2011).
With these standards in mind, we address Maisey’s first ineffectiveness
claim. At the PCRA hearing, Maisey testified that, based on discussions with
trial counsel, he believed that all of his sentences would be imposed
concurrently. Contrarily, trial counsel testified that he never made any such
representation and, that the trial court ran the majority of the sentences
concurrent to the first four sentences that were imposed consecutively.
In rejecting this claim, the PCRA court first noted that Maisey’s PCRA
hearing testimony contradicted the answers he gave in both the oral and
written guilty plea colloquies. Specifically, at these times Maisey
acknowledged that no promises had been made and that the trial court could
impose each sentence consecutively. See N.T., 8/27/21, at 24. Additionally,
as a matter of credibility, the PCRA court believed trial counsel’s version of
the contested facts. We cannot disturb this determination. See
Commonwealth v. Harmon, 738 A.2d 1023, 1025 (Pa. Super. 1999)
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(explaining that when a PCRA court’s determination of credibility is supported
by the record, it cannot be disturbed on appeal). Thus, Maisey’s first
ineffectiveness claim fails.
In his remaining claims, Maisey asserts trial counsel was ineffective for
failing to file a motion to reconsider his sentence and a direct appeal. At the
PCRA hearing, Maisey testified that he wished to pursue both and ultimately
filed a pro se reconsideration motion. Trial counsel testified that, although
Maisey did ask him to file a motion for reconsideration of sentence, counsel
advised against pursuing it, because the filing of the motion could work to his
detriment. According to counsel, the sentencing scheme adopted by the trial
court provided mitigation that counsel thought may be reconsidered by the
court. Counsel testified that Maisey never requested an appeal.
Once again, the PCRA court found trial counsel’s version of the facts to
be more credible:
It is specifically found that [trial counsel] were effective
in their representation of [Maisey]. [Maisey] got the benefit
of his bargain in being granted four consecutive sentences
in the mitigated range and seven sentences that were
concurrent.
***
It is found as a matter of fact, as a result of [trial
counsel’s] testimony that no direct appeal was requested.
It is found, as a matter of fact, that [Maisey’s] guilty plea
was knowing and voluntary. There were quite direct
admonitions at the beginning of the guilty plea hearing
telling [Maisey] that it had to be knowing and voluntary and
that the [trial court] was inquiring into those issues very
directly and that the [trial court] would not accept his guilty
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plea unless we were convinced that it was knowing and
voluntary. We were convinced that it was knowing and
voluntary and we continue to be convinced that it was
knowing and voluntary.
PCRA Court’s “Re-Sentence” Order, 9/7/21, at unnumbered 1-2.
Our review of the record supports the PCRA court’s credibility
determinations. Harmon, supra. We further note that at the conclusion of
the evidentiary hearing, the PCRA court stated that, had a motion for
reconsideration been filed, the court would have denied it without a hearing.
See N.T. 8/27/21, at 24. Thus, Maisey is unable to establish prejudice. See
generally, Commonwealth v. Reaves, 923 A.2d 1119 (Pa. 2007).
In sum, for the foregoing reasons, the PCRA court correctly denied
Maisey’s petition. Thus, we concur with PCRA counsel’s assessment of the
present appeal as frivolous. We therefore grant counsel’s motion to withdraw
and affirm the order denying Maisey post-conviction relief.
Motion to withdraw granted. Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/13/2022
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