Com. v. Ryan, R.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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remaining charges were withdrawn.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)
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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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