J-S38016-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

IBN SAUD A. VINSON,

                            Appellant                 No. 3192 EDA 2014


               Appeal from the PCRA Order of October 10, 2014
             In the Court of Common Pleas of Montgomery County
              Criminal Division at No(s): CP-46-CR-0004823-2010


BEFORE: FORD ELLIOTT, P.J.E., OLSON and JENKINS, JJ.

MEMORANDUM BY OLSON, J.:                                FILED JULY 12, 2016

        Appellant, Ibn Saud A. Vinson, appeals from the order entered on

December 30, 2015, denying his petition under the Post-Conviction Relief

Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.


        On May 29, 2010, police arrested Appellant after he physically

assaulted and shot his wife and fired shots at two law enforcement officers.

PCRA Court Opinion, 12/30/15, at 2.            Thereafter, on April 14, 2011,

Appellant entered a negotiated plea of guilty but mentally ill1 to one count of

aggravated assault2 and two counts of assault upon law enforcement

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1
    18 Pa.C.S.A. § 314.
2
    18 Pa.C.S.A. § 2702(A)(1).
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officers.3   Pursuant to the parties’ plea agreement, the trial court, on the

same day, imposed an aggregate sentence of 20 to 40 years in prison. No

direct appeal followed.

        We detail those aspects of Appellant’s plea colloquy that relate with

particularity to the knowing and voluntary nature of Appellant’s plea,

including his mental health status, as these issues are central to the claims

raised on appeal. Rocio Nell, M.D., an expert in psychiatry, is the medical

director at Montgomery County Emergency Services, a psychiatric hospital.

Dr. Nell examined Appellant on February 10, 2011, prior to the entry of

Appellant’s plea.     She prepared an expert report in which she opined, to

within a reasonable degree of medical certainty, that Appellant was

competent to stand trial and that he met the criteria to plead guilty but

mentally ill. According to Dr. Nell’s expert report, Appellant knew the nature

of his acts at the time he committed them and understood the wrongful

nature of his actions at the time of examination.       Trial Court Opinion,

12/30/15, at 3, n.5.

        At the hearing, the assistant district attorney stated the terms of

Appellant’s negotiated plea for the court. The plea agreement provided that

Appellant would serve an aggregate sentence of 20 to 40 years in prison for



____________________________________________


3
    18 Pa.C.S.A. § 2702.1(A).



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three assault charges, running concurrently.4 Id. at 3-4. Because Appellant

agreed to enter a plea of guilty but mentally ill, the agreement ensured that

Appellant would receive mental health treatment while serving his sentence.5

The plea terms, as stated in court and as proposed by the assistant district

attorney to Appellant’s counsel, did not specify a particular institution at

which Appellant would serve his sentence or receive treatment for mental

health issues.     Appellant’s counsel did not express any concern with these

specific terms and never discussed potential changes with the assistant

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4
   An email from the assistant district attorney to Appellant’s counsel
provides the specific terms of the parties’ plea agreement:

       I made some extra copies of Dr. Nell’s report to introduce at the
       hearing tomorrow. As for the plea itself, here are the
       specific terms:

       “Guilty but mentally ill” to the following:
       (Count 3) Aggravated Assault (Sonya Dickerson) (F1): 10-20 yrs
       dating from May 29, 2010.
       (Count 25) Assault of Law Enforcement Officer (Off. Chad Smith)
       (F1): 20-40 years dating from May 29, 2010.
       (Count 26) Assault of Law Enforcement Officer (Off. Kevin
       O’Donnell) (F1): 20-40 yrs dating from May 29, 2010.

N.T., PCRA Hearing, 2/24/14, Exhibit C-3 (emphasis added).
5
  See 42 Pa.C.S.A. § 9727(b)(1) (providing dispositions for persons found
guilty but mentally ill and stating, “An offender who is severely mentally
disabled and in need of treatment at the time of sentencing shall, consistent
with available resources, be provided such treatment as is psychiatrically or
psychologically indicated for his mental illness.”). Appellant has received
mental health treatment throughout his placement in the state correctional
system.




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district attorney. Id. at 18. Appellant denied that anyone made additional

promises to him in exchange for his plea. Id. at 6.

     At the plea hearing, the court examined whether Appellant was

capable of pleading guilty in a knowing, intelligent, and voluntary fashion.

Appellant acknowledged that he was in court to plead guilty and that he read

and initialed each page of the written guilty plea form with assistance from

his counsel. Id. at 5-6. The court asked whether Appellant entered into the

plea knowingly, intelligently, and voluntarily and whether he was satisfied

with the advice and representation of counsel.    Appellant answered in the

affirmative to each inquiry. Id. at 6. Appellant disclosed that he had taken

psychiatric medications but denied that these medications adversely affected

his ability to comprehend the nature of the proceedings.    Id. at 3-5. The

court accepted Appellant’s plea and imposed the negotiated sentence. Id. at

6.

     On the suggestion of Appellant’s counsel, the trial court included, as

part of its sentencing order, a recommendation stating, “that [Appellant] be

evaluated for possible neurological conditions that may have caused his

mental deterioration.”   Id. at 7. The order also recommended Appellant’s

admission to Norristown State Hospital (“State Hospital”) for “evaluation and

treatment for 90 days,” and that he then be returned to “the authority

entitled to have him in custody to serve out his remaining sentence.” Id. at




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7-8.    Appellant was never admitted into the State Hospital after the

Department of Corrections took him into custody. Id. at 8.

       On January 12, 2012, Appellant filed a PCRA petition alleging that he

was entitled to withdraw his guilty plea because: 1) he was incompetent at

the time of his plea; 2) his plea was unlawfully induced by the ineffective

assistance of plea counsel; and 3) his plea was unlawfully induced by the

Commonwealth’s breach of the parties’ plea agreement. Id. at 8-9.

       The PCRA court appointed counsel and convened a hearing on

Appellant’s PCRA petition at which Appellant’s plea counsel testified on

behalf of the Commonwealth.            Counsel testified that he consulted with

Appellant on four separate occasions for a total of approximately 14-15

hours, that he and Appellant discussed the plea agreement on each

occasion, that Appellant spoke intelligently and appropriately during these

meetings, and that Appellant was aware of the charges and evidence against

him. Id. at 11-14. Consistent with Appellant’s testimony that he entered

the plea to receive mental health treatment, id. at 11, counsel testified that

treatment was a “material aspect of [Appellant’s] agreement with the

Commonwealth.” Id. Appellant asserted throughout the hearing that it was

his understanding “that he was to serve his sentence at Norristown State

Hospital until he got better.”   Id.

       The PCRA court denied Appellant’s petition on October 10, 2014. The

court held that Appellant was not entitled to relief because: 1) he was


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competent when he entered his plea; 2) plea counsel was not ineffective

because Appellant could not show that he was prejudiced by any error or

omission; and 3) the Commonwealth did not breach any term of its plea

agreement with Appellant. This appeal followed.6

       Appellant raises the following issues on appeal:

       Whether the [t]rial [c]ourt erred by denying [Appellant’s] PCRA
       [p]etition.

       Whether the [t]rial [c]ourt erred by not granting [Appellant’s]
       PCRA [sic] based on the failure to keep a promise made to
       [Appellant] as part of his plea (that [Appellant] would be
       evaluated by Norristown State Hospital) when that promise was
       memorialized by the [c]ourt and was critical for the [Appellant]
       entering the plea as he has been suffering from mental health
       issues for most of his life.

Appellant’s Brief at 4.

       Appellant advances three contentions on appeal. First, he asserts that

he was incompetent when he entered his plea. Second, he argues that plea

counsel rendered ineffective assistance by failing to advise Appellant that the

Department of Corrections could ignore the court’s recommendation that he

receive treatment at State Hospital.             Third, Appellant argues that the

Commonwealth breached the plea agreement because Appellant never



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6
   The PCRA court directed Appellant to file a concise statement of errors
complained of on appeal under Pa.R.A.P. 1925(b) on or before December 1,
2014. Appellant filed a timely concise statement in which he raised both
issues set forth in his brief.



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received treatment in State Hospital before his transfer to a state

correctional facility.

       Our Supreme Court applies the following scope and standard of review

to orders denying collateral relief:

       An appellate court’s standard of review is limited to examining
       whether a [PCRA] court’s findings of fact are supported by the
       record, and whether its conclusions of law are free from legal
       error. The scope of review is limited to the findings of the PCRA
       court and the evidence of record, viewed in the light most
       favorable to the party who prevailed in the PCRA court
       proceeding.

Commonwealth v. Busanet, 54 A.3d 35, 45 (Pa. 2012).


       In order to be eligible for relief, [a] petitioner must establish by
       a preponderance of the evidence that his conviction or sentence
       resulted from one or more of the enumerated defects found in
       [42 Pa.C.S.A. § 9543(a)(2)], and that the allegation of error has
       not been previously litigated or waived.

                                           ***

       An allegation is deemed waived if the petitioner could have
       raised it but failed to do so before trial, at trial, on appeal or in a
       prior state postconviction hearing. [42 Pa.C.S.A. § 9544(b).]

Commonwealth v. Brown, 872 A.2d 1139, 1145 (Pa. 2005).

       Appellant’s first issue asserts that he was incompetent to enter a

knowing and intelligent plea.7         We begin by addressing whether Appellant



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7
    It is unclear which cognizable claim under the PCRA Appellant seeks to
invoke in advancing this theory of relief. Appellant presents no evidence
that his plea was “unlawfully induced” under circumstances which make it
likely that the inducement caused the petitioner to plead guilty while actually
(Footnote Continued Next Page)


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waived this allegation of error. See 42 Pa.C.S.A. § 9543(a)(3). Appellant

did not raise this issue after entering his plea, after the court imposed

sentence, or by way of a direct appeal.           In general, a petitioner waives a

claim for purposes of the PCRA when he could have raised it, but failed to do

so, before trial, at trial, on appeal or in a prior state post-conviction hearing.

Brown, 872 A.2d at 1144. Appellant does not address the issue of waiver,

and neither has the PCRA court. However, we note that our Supreme Court

has held that the issue of competency is nonwaivable for PCRA purposes.

Id. at 1153 (“This Court has consistently held … that the issue of whether a

defendant was competent to stand trial is an exception to the waiver rule.”).

As such, we may address the merits of Appellant’s opening claim.

      A defendant is presumed competent to stand trial. Commonwealth

v. DuPont, 681 A.2d 1328, 1330 (Pa. 1996).                    He must prove his

incompetence by a preponderance of the evidence.               Commonwealth v.

Smith, 17 A.3d 873, 899 (Pa. 2011). A competent defendant has the ability

to consult with counsel “with a reasonable degree of understanding,” to

participate in his own defense, and to understand the nature of the

proceedings against him.          Commonwealth v. Blakeney, 108 A.3d          739,

752 (Pa. 2014).        In addition, this Court will not overturn a PCRA court’s

credibility determinations when there is evidence on the record to support
                       _______________________
(Footnote Continued)

innocent. See 42 Pa.C.S.A. § 9543(2)(iii). As Appellant’s position is
ultimately without merit, however, we proceed to the substance.



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those determinations. Commonwealth v. Anderson, 995 A.2d 1184, 1189

(Pa. 2010).

     Here, the PCRA court credited the Commonwealth’s evidence of

competency and found Appellant’s contrary evidence to be less credible.

See Trial Court Opinion, 12/30/15, at 23-25.    The Commonwealth offered

the medical opinion of Dr. Nell, who examined Appellant on four separate

occasions two months before he entered his guilty plea. Plea counsel also

stated that Appellant understood the terms of the negotiated plea, the

nature of the charges against him, and the evidence that the Commonwealth

had amassed for use at trial. In addition, the court questioned Appellant at

the plea hearing and had ample opportunity to observe and assess his

demeanor. Against this, Appellant offered two expert reports prepared by

Timothy J. Michaels, M.D. to show that he was incompetent at the time he

entered his guilty plea.   Id. at 24-25.     The evidence offered by the

Commonwealth came from sources closer in time to Appellant’s plea and

with greater opportunity to interact with Appellant and judge his competence

on that date. In light of these circumstances, we will not disturb the PCRA

court’s assessment, which finds support in the record. Anderson, 995 A.2d

at 1189.

     Next, Appellant contends that he lacked the effective assistance of

counsel because plea counsel failed to inform him that the Department of




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Corrections would not be bound by the court’s recommendation regarding 90

days’ treatment at State Hospital.

     It is clear that a criminal defendant’s right to effective counsel
     extends to the plea process[.]         However, [a]llegations 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. 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.

     To prevail on a claim alleging counsel’s ineffectiveness under the
     PCRA, Appellant must demonstrate: 1.) that the underlying claim
     is of arguable merit; 2.) that counsel’s course of conduct was
     without a reasonable basis designed to effect [the] client’s
     interest; and 3.) that he was prejudiced by counsel’s
     ineffectiveness, i.e. there is a reasonable probability that but for
     the act or omission in question the outcome of the proceedings
     would have been different.

Commonwealth v. Wah, 42 A.3d 335, 338 (Pa. Super. 2012).

     In addition, this Court has said:

     Courts may permit a defendant to withdraw his or her plea of
     guilty after sentence has been imposed only where the
     defendant makes a showing of prejudice that results in a
     manifest injustice. Manifest injustice may be established if the
     plea was not tendered knowingly, intelligently, and voluntarily.
     Commonwealth v. Persinger, 615 A.2d 1305 [, 1307] (Pa.
     1992).

     In addition, in determining whether a plea has been voluntarily
     entered, an examination of the totality of the circumstances is
     warranted. Commonwealth v. Allen, 732 A.2d 582, 588-589
     (Pa. 1999).

Commonwealth v. Hodges, 789 A.2d 764, 767 (Pa. Super. 2002).

     Pennsylvania presumes counsel to be effective, and the burden lies on

Appellant to prove otherwise. Commonwealth v. Fears, 86 A.3d 795, 804

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(Pa. 2011).    That Appellant now thinks his decision to plead guilty but

mentally ill was uninformed or poorly considered is not material. Anderson,

995 A.2d at 1192.      Instead, we focus on whether Appellant intelligently

understood the consequences of his plea at the time he entered it.

Persinger, 615 A.2d at 1308.

      Here, after a thorough review of the record, the briefs of the parties,

the applicable law, and the well-reasoned opinion of the PCRA court, we

conclude that there is no merit to the second issue raised by Appellant. As a

preliminary matter, we concur in several of the PCRA court’s findings and

determinations.      See   PCRA   Court     Opinion,   12/30/2015,   at   31-34

(concluding, among other things, that: 1) based on the specific terms

presented by the assistant district attorney and received without objection

by plea counsel and subsequently read into the record in open court,

treatment at State Hospital was never a term of the plea agreement; 2)

what Appellant bargained for was the opportunity to receive mental health

treatment while serving his sentence; 3) Appellant is now and will continue

receiving appropriate treatment; and, 4) Appellant has not been deprived of

the benefit of his bargain in a way which would make his plea unknowing,

involuntary, or unintelligent).

      In addition, we cannot ignore the fact that the record reveals that

Appellant bargained for lengthy concurrent state sentences and that the

court accepted Appellant’s plea and sentenced him according to the terms of


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his negotiated punishment. It is within the discretion of the PCRA court to

make credibility determinations, and the court rejected Appellant’s testimony

at the PCRA hearing that he would not have entered a plea had he known

that the Department of Corrections could disregard a recommended

diagnostic stay at State Hospital. We agree that the 90-day stay at State

Hospital was never a term of the plea agreement but instead emerged from

the assistant district attorney’s decision not to object to the court’s

recommendation as to how Appellant’s treatment and sentence might begin.

Moreover, Appellant is now serving a 20 to 40 year prison sentence, during

which he will receive mental health treatment at any institution in which he

resides. Under these circumstances, the issue of where he might spend his

first 90 days cannot be so critical as to make Appellant’s decision unknowing

or unintelligent, even if he is ultimately disappointed. The consequences of

Appellant’s plea do not suggest that a manifest injustice has occurred.

      Finally, Appellant argues that the Commonwealth breached its duty to

honor all material promises made in exchange for Appellant’s guilty plea by

refusing to provide Appellant with 90 days of treatment at State Hospital.

      As above, this argument necessarily fails because the Commonwealth

never represented the terms of the plea agreement in the way Appellant

now understands them. The Commonwealth did not obtain Appellant’s plea

in exchange for an initial 90-day diagnostic stay at State Hospital. Appellant




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offers no evidence tending to disprove this finding. See Appellant’s Brief at

5-6. Hence, his claim is without merit.

     Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/12/2016




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