J-S62018-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                            :        PENNSYLVANIA
                                            :
               v.                           :
                                            :
                                            :
 FRANKLYN M. GEIGER                         :
                                            :
                     Appellant              :   No. 259 WDA 2019

            Appeal from the PCRA Order Entered, January 29, 2019,
                in the Court of Common Pleas of Warren County,
             Criminal Division at No(s): CP-62-CR-0000149-2016.


BEFORE: PANELLA, P.J., KUNSELMAN, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY KUNSELMAN, J.:                            FILED MARCH 2, 2020

      Franklyn M. Geiger appeals pro se from the order denying his first

petition for relief pursuant to the Post Conviction Relief Act (“PCRA”).   42

Pa.C.S.A. §§ 9541-46. We affirm.

      This appeal returns to us following our previous remand. In Geiger’s

prior appeal, we summarized the pertinent facts and procedural history as

follows:


              On September 8, 2016, [Geiger] pled guilty at docket
           number 149 of 2016 to two counts of possession with intent
           to deliver marijuana and/or oxycodone; one count of
           criminal use of a communication facility; one count of
           corrupt organizations; one count of buying/exchanging
           federal food stamps; and one count of cruelty to animals.
           As part of the plea agreement, [Geiger] agreed to forfeit his
           animals to Paws Along the River Humane Society and to
           forfeit various items of personal property to the Warren
           County District Attorney’s Office/Warren County Drug Task
           Force. In exchange for the foregoing, the Commonwealth
J-S62018-19


       nolle prossed the remaining charges at docket number 149
       of 2016, as well as charges at docket number 150 of 2016.
       The Commonwealth also amended the criminal information
       to add more specific facts.

             On October 28, 2016, the trial court sentenced [Gieger]
       to:

                11 to 22 months of incarceration for possession with
                 intent to deliver at count 1;

                24 to 48 months of incarceration for possession with
                 intent to deliver at count 5, to be served consecutive
                 to the sentence at count 1;

                15 to 30 months of incarceration for criminal use of a
                 communications facility at count 7, to be served
                 consecutive to the sentence at count 5;

                30 to 60 months of incarceration for corrupt
                 organizations at count 18, to be served consecutive to
                 the sentence at count 7;

                11 to 22 months for buying/exchanging food stamps
                 at count 20, to be served consecutive to the sentence
                 at count 18;

                1 to 2 months of incarceration for cruelty to animals
                 at count 25, to be served consecutive to the sentence
                 at count 20.

       In the aggregate, [Geiger’s] sentenced totaled 92 months
       to 184 months of incarceration.

           [Geiger] timely filed a post-sentence motion, which was
       denied on January 5, 2017. On February 2, 2017, [Geiger’s]
       counsel filed a motion for extension of time for [Geiger] to
       file an appeal along with a motion to withdraw as [Geiger’s]
       counsel. That same day, the trial court allowed [Geiger’s]
       counsel to withdraw and gave [Geiger] an extra 30 days to
       file a notice of appeal. However, no direct appeal was filed.

           On June 25, 2017, [Geiger] timely filed pro se a PCRA
       petition.   [PCRA counsel] was appointed to represent
       [Geiger]. Instead of amending the petition, [PCRA counsel]
       filed a request to withdraw and a no-merit letter pursuant
       to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988),

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         and Commonwealth v. Finley 550 A.2d 213 (Pa. Super.
         1988) (en banc). On December 5, 2017, the PCRA court
         notified [Geiger] pursuant to Pa.R.Crim.P. 907 that it
         intended to dismiss the petition because [Geiger’s] claims
         presented no genuine issue of material fact and lacked
         merit. Although the PCRA court referenced counsel’s motion
         to withdraw and no-merit letter in its Rule 907 notice, the
         PCRA court did not expressly rule upon the Turner/Finley
         motion. On December 27, 2017, [Geiger] filed pro se a
         response to the Turner/Finley no-merit letter and the Rule
         907 notice. In his answer, [Geiger] included a motion for
         leave to amend his PCRA petition. On December 29, 2017,
         the trial court dismissed the PCRA petition without ruling on
         [Geiger’s] motion or counsel’s Turner/Finley motion to
         withdraw.

Commonwealth v. Geiger, 195 A.3d 1047 (Pa. Super. 2018), unpublished

memorandum at 1-5 (citations and footnotes omitted).

      Geiger filed a timely appeal to this Court in which he raised five issues.

Before addressing these issues, however, we noted that the record did not

establish that the PCRA court permitted PCRA counsel to withdraw.            In

addition, we noted that the PCRA court never expressly ruled on Geiger’s

motion to amend before dismissing his petition. Thus, on August 30, 2018,

this Court vacated the PCRA court’s order of December 29, 2017, dismissing

Geiger’s petition, and remanded so that the PCRA court could rule on counsel’s

petition to withdraw. Geiger, supra. We further stated, “If counsel is allowed

to withdraw, [Geiger] may re-file pro se his motion for leave to amend the

PCRA petition, and the PCRA court shall consider and rule upon such motion

prior to ruling upon the claims in [Geiger’s] original PCRA petition.” Geiger,

unpublished memorandum at 8 (footnote omitted).



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      Following remand, the PCRA court entered an order granting PCRA

counsel’s request to withdraw. The order further granted Geiger sixty days to

re-file the pro se motion for leave to amend the PCRA petition. Geiger timely

complied. In the amended petition, Geiger first incorporated all of the issues

from his original petition. In addition, he raised two new claims challenging

the legality of his sentence: 1) his sentences for possession with intent to

deliver should have merged with his sentence for corrupt organizations; and

2) his sentence to a term of incarceration for his cruelty to animals’ conviction

was illegal because it violated the terms of the negotiated plea agreement.

      On October 4, 2018, the PCRA court granted Geiger’s motion for leave

to amend his pro se PCRA petition, and the court re-appointed the same PCRA

counsel for the sole purpose of reviewing the two new issues Geiger raised in

his amended petition. On December 6, 2018, PCRA counsel filed an amended

petition in which he raised a challenge to the legality of Geiger’s sentence

based on the merger doctrine. By order entered January 8, 2019, PCRA court

reissued Rule 907 notice of its intention to dismiss all claims raised in both

Geiger’s original and counseled amended petitions.

      On January 10, 2019, Geiger filed a “Motion to Dismiss Appointed

Counsel with Permission to Proceed Pro Se and Motion for Leave to Re-Amend

Pro Se Petition.”   In these motions, Geiger complained that PCRA counsel

failed to raise an illegal sentencing issue he had raised in his pro se amended

PCRA petition, as well as counsel’s failure to raise a new claim that his

sentence for criminal use of a communications facility was illegal because his

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plea to that charge lacked a factual basis. Geiger therefore sought to proceed

pro se, and sought leave to “re-amend” his PCRA petition to include the third

illegal sentence claim. By order entered January 10, 2019, the PCRA court

denied both motions. On January 16, 2019, PCRA counsel filed a motion to

withdraw and a second Turner/Finley letter, in which he addressed the two

illegal sentence claims Geiger raised in his pro se amended petition. By order

entered that same day, the PCRA court granted PCRA counsel’s motion to

withdraw.   By order entered January 29, 2019, the PCRA court dismissed

Geiger’s original and amended PCRA petitions. This appeal followed. Both

Geiger and the PCRA court have complied with Pa.R.A.P. 1925.

      Geiger now raises the following issues, which we have reordered for

ease of disposition:

         1. Is [Geiger’s] plea to the corrupt organization offense
            involuntary or [un]knowing, where [plea counsel] was
            ineffective for failing to investigate the facts alleged by
            the Commonwealth and thereafter not objecting to the
            lack of a factual basis for the corrupt organization
            [charge]?

         2. Is [Geiger’s] plea to the cruelty to [animals] offense
            involuntary, where [plea counsel] was ineffective for
            failing to investigate the facts alleged by the
            Commonwealth and thereafter not objecting to the lack
            of a factual basis for the cruelty to animals [charge]?

         3. Was the [PCRA] court correct in denying [Geiger’s]
            motion to re-amend the amended PCRA [petition] to
            include [Geiger’s] plea to the criminal use of a
            communications device because of the blatant lack of a
            factual basis for the charge based off the official record
            of [the] incident?



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         4. Was counsel ineffective for failing to object to the
            inaccurate and/or incorrect information contained in the
            Pre-Sentence Investigation (PSI) report?

         5. [Are Geiger’s] consecutive sentences for the possession
            with intent to deliver and corrupt organization illegal
            [because the charges] should have merged for
            sentencing purposes?

         6. Is [Geiger’s] jail term for the cruelty to [animals] offense
            illegal and in violation of the plea agreement as advised
            by [plea] counsel?

         7. Whether the PCRA [Court] erred in dismissing [Geiger’s]
            PCRA Petition without holding an evidentiary hearing?
            Where [Geiger] demonstrated a prima [facie] case that
            his plea was not knowing[,] informed or intelligently
            made and was unlawfully induced by trial counsel.
            Inaccurate assessment of the offenses and [Geiger’s]
            guilt of the offenses[?].

         8. Whether the PCRA Court erred in not fully addressing
            [Geiger’s issues] as mandated by [the U.S.] Supreme
            Court when considering key aspects of the case?

         9. Whether [the] PCRA Court erred in permitting PCRA
            counsel to withdraw under [the] auspice of [a] no-merit
            [letter] to said PCRA filing?

Geiger’s Brief at 7-8.

      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).

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             When the PCRA court has dismissed a petitioner’s PCRA
      petition without an evidentiary hearing, we review the PCRA
      court’s decision for an abuse of discretion. Commonwealth v.
      Roney, 79 A.2d 595, 604 (Pa. 2013). The PCRA court has
      discretion to dismiss a petition without a hearing when the court
      is satisfied that there are no genuine issues concerning any
      material fact, the defendant is not entitled to post-conviction
      collateral relief, and no legitimate purpose would be served by
      further proceedings. Id. To obtain a reversal of a PCRA court’s
      decision to dismiss a petition without a hearing, an appellant must
      show that he raised a genuine issue of material fact which, if
      resolved in his favor, would have entitled him to relief, or that the
      court otherwise abused its discretion in denying a hearing.

Commonwealth v. Blakeney, 108 A.3d 739, 750 (Pa. 2014).

      Geiger’s first three issues allege the ineffective assistance of plea

counsel for advising him to enter his guilty plea when several of the crimes

charged against him lacked a factual basis. 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 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.

      With regard to claims of ineffectiveness in relation to the entry of plea,

we further note:

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          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 of
          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).

      With regard to the procedure followed regarding the entry of a guilty

plea, this Court has stated:

             Pennsylvania has constructed its guilty plea procedures
          in a way designed to guarantee assurance that guilty pleas
          are voluntarily and understandingly tendered. The entry of
          a guilty plea is a protracted and comprehensive proceeding
          wherein the court is obliged to make a specific
          determination after extensive colloquy on the record that a
          plea is voluntarily and understandingly entered.

Commonwealth v. Yeomans, 24 A.3d 1044, 1046 (Pa. Super. 2011)

(quoting Commonwealth v. Fluharty, 632 A.2d 312, 314 (Pa. Super.

1993)).




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      Rule 590(A)(1) of the Pennsylvania Rules of Criminal Procedure requires

that a guilty plea be taken in open court. Regarding plea agreements, Rule

590(B) requires the trial court to “conduct a separate inquiry of the defendant

on the record to determine whether the defendant understands and voluntarily

accepts the terms of the plea agreement on which the guilty plea or plea of

nolo contendere is based.” Pa.R.Crim.P. 590(B)(2). As noted in the Comment

to Rule 590, at a minimum the trial court should ask questions to elicit the

following information:

         (1)   Does the defendant understand the nature of the
               charges to which he or she is pleading guilty?

         (2)   Is there a factual basis for the plea?

         (3)   Does the defendant understand that he or she has the
               right to trial by jury?

         (4)   Does the defendant understand that he or she is
               presumed innocent until found guilty?

         (5)   Is the defendant aware of the permissible range of
               sentences and/or fines for the offenses charged?

         (6)   Is the defendant aware that the judge is not bound by
               the terms of any plea agreement tendered unless the
               judge accepts such agreement?

Pa.R.Crim.P. 590, Comment.

      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. Yeomans, 24 A.3d at 1047 (citation omitted). “Thus, even

though there is an omission or defect in the guilty plea colloquy, a plea of

guilty will not be deemed invalid if the circumstances surrounding the plea


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disclose that the defendant had a full understanding of the nature and

consequences of his plea and that he knowingly and voluntarily decided to

enter the plea.” Id. Under Pennsylvania law, a reviewing court is free to

consider a wide array of relevant evidence in addition to the transcript of the

actual plea colloquy, under the totality-of-the-circumstances standard, to

determine the validity of a claim and plea agreement, including, but not

limited to transcripts from other proceedings, off-the-record communications

with counsel, and written plea agreements. Commonwealth v. Allen, 732

A.2d 582, 589 (Pa. 1999).

      In addition, we note the conclusory effect of a defendant’s statements

during the guilty plea colloquy on subsequent attempts to challenge the

validity of the plea. As this Court has summarized:

        Our law presumes that a defendant who enters a guilty plea
        was aware of what he was doing. He bears the burden of
        proving otherwise.

                             *       *       *

            The long standing 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.

                             *       *       *

        [A] defendant who elects to plead guilty has a duty to answer
        questions truthfully. We [cannot] permit a defendant to
        postpone the final disposition of his case by lying to the court



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        and later alleging that his lies were induced by the prompting
        of counsel.

Commonwealth v. Pollard, 832 A.2d 517, 523-24 (Pa. Super. 2003)

(citations omitted).

      With these standards in mind we address the merits of Geiger’s first

three issues.     As noted above, Geiger asserts that his plea counsel was

ineffective for failing to ensure that his oral colloquy included a factual basis

for his guilty plea to three of his charges. The PCRA court found no merit to

any of the claims. We will address each ineffectiveness claim separately.

      In his first issue, Geiger claims that his plea to corrupt organizations

was involuntary. In rejecting this claim, the PCRA court first set forth Geiger’s

argument from his original petition. According to the court, Geiger asserted

that his guilty plea to corrupt organizations was involuntary because his trial

counsel:


           knew or should have known that the prosecution had no
           credible evidence to support a corrupt organization[charge];
           counsel was fully aware that [Geiger’s] legitimate business
           and real estate holdings were legally established and owned
           by him prior to any alleged drug dealing and there was not
           credible evidence to substantiate or corroborate that any
           proceeds from selling small amounts (less than 30 grams)
           of marijuana and prescription pills infiltrated his legitimate
           business interests.

Rule 907 Notice, 1/8/19, at 5 (citing Geiger’s PCRA Petition at ¶ 11).

      The PCRA court then explained why Geiger’s claim was meritless:

              [Geiger’s] argument is based on a misunderstanding of
           the law on this issue. 18 Pa.C.S.A. § 911 (b)(1) provides in

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         relevant part that “[i]t shall be unlawful for any person who
         had received income derived, directly or indirectly from a
         pattern of racketeering in which such person participated as
         principal, to use or invest . . . any part of such income, or
         the proceeds of such income, in the . . . establishment or
         operation of, any enterprise.” [Geiger’s] assertion that the
         fact that the proceeds from his alleged drug dealing never
         infiltrated his legitimate business interests is misplaced. 18
         Pa.C.S.A. § 911(h)(3) defines enterprise as “any individual,
         partnership, corporation, association or other legal entity,
         engaged in commerce and includes legitimate as well as
         illegitimate and government entities.”            The Corrupt
         Organizations statute does not require that [Geiger’s]
         proceeds from his drug dealing activity infiltrate his
         legitimate business interests, rather, the enterprise that
         served as the basis of [Geiger’s] Corrupt Organizations
         charge was [Geiger’s] wholly illegitimate business of drug
         dealing. This is demonstrated by the facts alleged in the
         Amended Criminal Complaint and the identical recitation of
         the facts during [Geiger’s] guilty plea on September 8,
         2016, where the Court said: “it is alleged that between the
         dates of September 30, 2015 and February 14th, 2016, you
         did engage in a pattern of purchasing, selling and
         distributing controlled substances; and, while operating as
         a principal actor did use the income therefrom to purchase
         and sell controlled substances in order to operate the illegal
         enterprise.”

Rule 907 Notice, 1/8/19, at 5-6 (citations to record omitted). Geiger expressly

admitted his guilt of the corrupt organization charge given the factual basis

provided. See N.T., 9/8/16, at 19-21.

      The PCRA court agreed with PCRA counsel’s opinion, as expressed in his

Turner/Finley no-merit letter, that, in making his argument, Geiger likely

relied on our Supreme Court’s decision in Commonwealth v. Besch, 674

A.2d 655 (Pa. 1996), wherein the high court held that not all criminal

enterprises fall under the definition of “enterprise” as defined by the Corrupt



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Organizations Act. See Memorandum Opinion, 1/8/19, at 6. Finally, the PCRA

court acknowledged that “[s]oon after the decision in Besch, the Pennsylvania

Legislature amended the Corrupt Organizations Act to include “legitimate as

well as illegitimate entities.” See Memorandum Opinion, 1/8/19, at 6 (citing

Commonwealth v. Williams, 936 A.2d 12, 18-19 (Pa. 2007).

      Our review of the record reveals that a sufficient factual basis was placed

on the record to support Geiger’s corrupt organizations charge.        Geiger is

bound by his statement during the colloquy that he accepted the factual basis

for his plea to this crime. Pollard, supra. In arguing to the contrary, Geiger

asserts:

           The corrupt organization[s] statute under 18 Pa.C.S.A. §
           911, mandates that the Commonwealth prove a defendant
           committed two or more crimes as a part of a pattern of
           “racketeering activity.” All [Geiger] is charged with is low
           level street sales of small amounts of marijuana and 4 pills.
           That [does] not rise to the level of racketeering activity
           necessary for a corrupt organization[.] [A]t worst he was an
           organized criminal not [a] corrupt organization. [Geiger]
           was only convicted of [p]ossession with intent to deliver
           charges and no other [r]acketeering activity. The only
           person arrested and convicted of any offense related to
           [Geiger] was his girlfriend Tara Phillips who went and
           retrieve[d] a small amount of Marijuana from their bedroom
           that’s it. So there was only one type of crime.

Geiger’s Brief at 19.

      Geiger raises these claims for the first time on appeal. Therefore, we

cannot consider them. See generally, Pa.R.A.P. 302(a). Notwithstanding

waiver, our review of the record readily established that the Commonwealth

originally charged Geiger with committing five drug transactions. “Pattern of

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racketeering activity” is defined in the criminal statute as referring “to a course

of conduct requiring two or more acts of racketeering activity[.]” 18 Pa.C.S.A.

§ 911(h)(4). Geiger cites no case law to support his belief that this definition

requires two or more different crimes. Thus, Geiger’s first issue fails.1

       In his second issue, Geiger asserts that his plea to the cruelty to animals

charge was involuntary because trial counsel was ineffective for failing to

ensure that the Commonwealth provided an adequate factual basis for this

conviction.

       When the Commonwealth charged Geiger with the offense, cruelty to

animals was defined as follows:

               A person commits an offense if he wantonly or cruelly
          ill[-]treats, overloads, beats, otherwise abuses any animal,
          or neglects any animal as to which he has a duty of care,
          whether belonging to himself or otherwise, or abandons any
          animal, or deprives any animal of necessary sustenance,
          drink, shelter, or veterinary care, or access to clean and
          sanitary shelter which will protect the animal against
          inclement weather and preserve the animal’s body heat and
          keep it dry.

18 Pa.C.S.A. § 5511(C)(1) (repealed).


____________________________________________


1 In support of this issue, Geiger relies on examples from the standard jury
instructions and claims that once the Commonwealth “amended the criminal
complaint information [sic], and the corrupt organization offense on 8/12/16
[it] no longer contained the factual basis necessary to enforce the offense as
it is written.” Geiger’s Brief at 26. We note that the Commonwealth
established the factual basis for the plea to this charge during the guilty plea
colloquy, as well as the totality of the circumstances surrounding the plea.
Yeomans, supra; Allen, supra.


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     The PCRA court found no merit to Geiger’s claim:

           At the time of [Geiger’s] plea, the Court recited [the]
        facts provided for the Cruelty to Animal charge as written in
        the Amended Criminal Information: “it is alleged that you
        did wantonly or cruelly neglect a female Chihauhau canine,
        four turtles, eleven rats and/or three snakes by depriving
        said animals [of] sustenance, shelter or veterinary care.”
        [Geiger] subsequently admitted to the charge as it was
        written.

                                     ***

           There is ample evidence that if proven, would support a
        conviction of Cruelty to Animals under Pa.C.S.A. §
        5511(C)(1), and [Geiger] received a proper colloquy at the
        time of his guilty plea. As such, the Court finds that
        [Geiger’s] claim that there was ineffective assistance of
        counsel for failure to investigate facts that support a
        conviction of Cruelty to Animals is meritless.

Rule 907 Notice, 1/8/18, at 7-8.

     Our review of Geiger’s plea colloquy supports that PCRA court’s

conclusion that an adequate factual basis was presented to support Geiger’s

conviction for cruelty to animals.     In arguing to the contrary, refers to

“exculpatory” pictures that were available to plea counsel that allegedly

demonstrated animals were properly cared for. In addition, he blames the

police officers who searched his home for creating the conditions that led to

the animals’ removal. See Geiger’s Brief at 20.

     No such pictures appear in the certified record.       The PCRA court

referenced the amended affidavit of probable cause from the May 4, 2016

criminal complaint to describe the condition of Geiger’s property at the time

the police conducted the search on February 4, 2016:


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          Your affiant found the 2 snakes in aquariums without water
          or heat lights in the basement. . . [t]he four turtles were
          viewed in a large black tub with filthy water. They did not
          have access to crawl up onto a resting board to get out of
          the water. There were 9 rats in a large cage. They were
          thin, missing hair and no food was visible other than empty
          bags of cereal lying around the basement near the cage.
          They were hanging onto the side of the walls of the cage
          appearing starved and frantic when we approached. No
          food was viewed for any animals in the home. The python
          snake was found in the upstairs hallway in an aquarium with
          a newspaper over it. No water was in the cage and [a] small
          heating unit lying on the paper was not working and no light
          was available. The dog was in the bedroom and appeared
          thin. There were two other rats in a dirty aquarium also
          found in the basement.

Memorandum Opinion, 1/8/18, at 7-8 (citing Amended Affidavit of Probable

Cause). Even if plea counsel was aware of photos that would prove otherwise,

Geiger knew of them too, and still chose to plead guilty and his bound by his

statements. Pollard, supra. Thus, as the record refutes Geiger’s claim, his

second issue fails.2

       In his third issue, Geiger not only asserts that his guilty plea to criminal

use of a criminal communications device was involuntary because it lacked a

factual basis, but he also claims that the PCRA court erred in denying him

leave to amend his amended PCRA petition to include this claim after this

Court remanded the case.

____________________________________________


2Within this issue, Geiger raises additional claims, including the validity of the
search warrant and the actual number of animal cruelty charges the
Commonwealth originally filed against him. See Geiger’s Brief at 33. As
Geiger did not raise these claims in his statement of questions involved, they
are waived. Pa.R.A.P. 2116(a).


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     The PCRA court first concluded that our remand did not permit Geiger

to add new claims to his amended petition. As the PCRA court explained:

            Rule 905(A) gives the PCRA court discretion to “grant
        leave to amend or withdraw a petition for [PCRA] relief at
        any time,” and states that “[a]mendment shall be freely
        allowed to achieve substantial justice.”         Pa.R.Crim.P.
        905(A). However, a PCRA petitioner is not entitled to raise
        new claims following remand for further PCRA proceedings.
        See, e.g., Commonwealth v. Daniels, 628 Pa. 193, 104
        A.3d 267, 285 (2014) (finding a new PCRA claim raised
        post-remand from this Court to have been waived, as [t]his
        Court explicitly limited the subject matter of the remand to
        the remaining issues already raised by appellees[)];
        Commonwealth v. Spotz, 610 Pa. 17, 18 A.3d 244, 238
        (2011) (denying the appellant’s request for remand for the
        PCRA court to consider issues first raised in a motion for
        reconsideration, as this would amount to the PCRA court’s
        consideration of a second, untimely PCRA petition);
        Commonwealth v. Rainey, 593 Pa. 67, 928 A.2d 215, 226
        n.9 (2007) (stating that because this Court expressly
        permitted the appellant to raise one new PCRA claim on
        remand, raising any additional issues post-remand was
        improper).

            A PCRA court does not have discretion to treat new claims
        raised by a PCRA petitioner as an amended PCRA petition
        following remand from an appellate court, unless such
        amendment is expressly authorized in the remand order.
        Commonwealth v. Sepulveda, 144 A.3d 270 (Pa. 2016).
        Here the Superior Court only authorized [Geiger] to re-file
        his original pro se amended petition. [Geiger] was not
        specifically authorized to file further motions to amend his
        petition.

            It was this court’s interpretation of the Superior Court’s
        remand direction that this court was only to consider the
        merits of the original PCRA petition and, if granted, the
        matters set forth in [Geiger’s] “re-filed” pro se Motion as set
        forth above. As indicated, [Geiger] re-filed the Motion to
        Amend and the court permitted the amended motion to be
        filed and appointed counsel to represent [Geiger] regarding
        the amended petition. The court considered those matters

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         and filed a Notice of Intent to Dismiss the PCRA petition.
         Subsequently, [Geiger] filed a Motion for Leave to Re-
         Amend. [Geiger’s] proposed new “Amended PCRA Petition”,
         an addition to re-asserting the [two issues raised in his re-
         filed petition], sets forth the following:      “[Geiger’s]
         sentence of fifteen (15) months to thirty (30) months
         for criminal use of a communications facility is illegal
         because there is no factual basis to support that it
         was even committed.” This court determined that the two
         (2) matters appropriate for consideration for remand were
         considered by the Court and the new matter asserted was
         improper in light of the remand order. As such, the court
         denied the motion.

Pa.R.A.P. 1925(a) Opinion, 1/29/19, at unnumbered 3-4.

      Our review of the record supports the PCRA court’s conclusion that our

remand did not permit Geiger to re-amend his PCRA petition, and the PCRA

court denied his request to do so. Thus, Geiger’s third issue is waived.

      Notwithstanding waiver, the PCRA addressed Geiger’s claim and found

it lacked merit:

         [Geiger] given a full on the record colloquy, pled guilty to
         Court 7 of the Information, Criminal Use of a
         Communications Facility. At the time of the plea, the
         elements of that offense were fully explained to [Geiger].
         The factual basis for the offense was “[Geiger] did use a
         cellular telephone to facilitate the selling of a controlled
         substance to a confidential informant in October, 2015.”
         Clearly that recitation of the facts establishes a factual
         [basis] for the offense. [Geiger] appears to be challenging
         the sufficiency of the evidence for this charge. It is clear
         however, that the entry of a guilty plea constitutes waiver
         of all defenses and defects except claims of lack of
         jurisdiction, invalid guilty plea, and illegal sentence. The
         issue of sufficiency of the evidence has been waived and is
         not subject to review on PCRA petition. The plea was the
         result of an open plea negotiation process that resulted in
         numerous charges being nolle prossed in exchange for a
         guilty plea to the remaining counts.

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J-S62018-19



Pa.R.A.P. 1925(a) Opinion, 1/29/19, at unnumbered 4 (citations omitted).

      Once again, our review of the record supports the PCRA court’s

conclusions. At the guilty plea colloquy, Geiger admitted the factual basis for

this crime based upon an October 2015 drug transaction; his statement binds

him. See Pollard, supra. In arguing to the contrary, Geiger refers to a

police incident report generated in 2016 regarding a 2016 drug transaction.

See Geiger’s Brief at 49. Thus, because a review of the plea colloquy refutes

Geiger’s claim, trial counsel cannot be found ineffective and Geiger’s third

issue fails.

      In his fourth issue, Geiger claims that trial counsel was ineffective for

failing to object to allegedly inaccurate or incorrect information contained in

his pre-sentence investigation (“PSI”).

      The PCRA court found no merit to this claim:

             [Geiger’s] argument that the Court relied on inaccurate
          information in the PSI report that led to the Court imposing
          an excessive and disproportionate sentence is meritless.
          Before sentencing, the Court asked counsel if he ha[d]
          reviewed the PSI report with [Geiger] and asked if any
          corrections or additions should be made to the report.
          Counsel replied “no” and [Geiger] never requested to amend
          the report. The lone inaccuracy in [Geiger’s] PSI report
          seems to be an incorrectly reported juvenile offense listed
          under factor “04” of [Geiger’s] Risks/Needs Assessment,
          where [Geiger] received a consent decree on June 26, 1986
          for Theft by Unlawful Taking as opposed to an adjudication
          of guilt. The Court did not rely on that inaccuracy in any
          way for sentencing purposes. [Geiger’s] argument that the
          Risk/Needs Assessment was inaccurate in determining that
          [Geiger] rationalizes his behavior, is negative, and is not
          motivated to change is contradicted by [Geiger’s] thirty year
          long history of criminal convictions.

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J-S62018-19



Rule 907 Notice, 1/8/18, at 8-9.

      In addition, the PCRA court noted that at the time of sentencing, the

court provided reasons for its sentencing choice:

            This is your third possession with intent to deliver. It
         includes simple assault, indecent assaults. You have had
         supervision revoked in the county before. Your businesses
         are a front for your unlawful activities. There is an indication
         that you are sorry. [Plea counsel] indicated that you are
         sorry. I looked at the risk and needs assessment that was
         performed, and that indicates that you rationalize your
         behavior and have no motivation to change your criminal
         conduct. And, clearly, that’s been the case for 30 years. All
         of this indicates that you are an extremely poor candidate
         that will lead you to returning to the community to be a law
         abiding, productive citizen.

Id. at 9 (citation omitted).

      Our review of the record supports the PCRA court’s conclusion that it did

not rely on inaccurate information from the PSI report. Geiger takes issue

with the trial court’s crediting statements in the PSI report that he “rationalizes

his behavior, [is] negative, [and] not motivated to change[,]” because he was

never interviewed “and/or given a psychological interview by anyone.” See

Geiger’s Brief at 35. In addition, Geiger contends that the trial court’s reliance

upon incorrect information is supported by the trial court’s acknowledgement

that his 1986 juvenile offense should not have been considered as part of his

criminal history. Id.

      We disagree, as our review of the record supports the court’s conclusion

that the above comments by the court at sentencing demonstrates the court’s

belief that past attempts to rehabilitate Geiger have failed.          See, e.g.,

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J-S62018-19



Commonwealth v. Gibson, 716 A.2d 1275, 1279 (Pa. Super. 1998) (holding

that sentence outside guidelines was justified because, inter alia, the appellant

disregarded earlier opportunity to reform). The fact that he only had a quarter

century history of committing crime rather than thirty years is not a basis to

disturb the sentencing court’s determination. Thus, Geiger’s fourth claim of

ineffectiveness fails.

      In his fifth issue, Geiger claims that his consecutive sentences for

corrupt organizations and possession with intent to deliver were illegal

because the crimes should have merged for sentencing purposes. This Court

reviews the issue of whether crimes should have merged for sentencing

purposes de novo and the scope of review is plenary. Commonwealth v.

Martinez, 153 A.3d 1025, 1030 (Pa. Super. 2016).

      The PCRA court found no merit to this claim:

            The Superior Court addressed this issue squarely in
         Commonwealth v. Besch, [614 A.2d 1155, 1158 (Pa.
         Super. 1992), reversed on other grounds, 674 A.2d 655 (Pa.
         1996), where the Appellant claimed receiving separate,
         consecutive sentences for Corrupt Organizations and the
         predicate drug offenses, constituted a double jeopardy
         violation. [] In Besch, the Superior Court explains the
         purpose of the double jeopardy provision is to prevent the
         Court and prosecutor from imposing multiple punishments
         for a single crime. Id. (citing Commonwealth v. Bostic,
         456 A.2d 1320, 1323 (Pa. 1983)). The Court held that
         charges of Corrupt Organizations and its predicate offense
         of engaging in drug activity were two separate crimes. Id.
         Appellant was sentenced on drug charges for engaging in
         activity violating the Controlled Substance, Drug and
         Cosmetic Act, which is distinguished from Appellant’s
         Corrupt Organizations charges for engaging in racketeering
         activity, which can include drug and non-drug offenses. Id.

                                     - 21 -
J-S62018-19


         The Superior Court additionally noted the legislature’s
         determination that the Corrupt Organizations statute was
         enacted to provide new remedies while allowing defendants
         immunity for the predicate acts conducted within their
         corrupt organizations. Id. at 1159.

            Here, [Geiger] claims his charges for Possession with
         Intent to Deliver and Corrupt Organizations, should be
         merged and punished as a single crime. As stated in Besch,
         [Geiger’s] predicate drug offense does not constitute the
         same crime as Corrupt Organizations nor was that the
         purpose of the legislature. While asserted as a Double
         Jeopardy violation in Besch, clearly the Court’s logic would
         include a merger claim. Therefore, this Court is bound by
         said decision and must deny [Geiger’s] request for merger
         on the charges as it [is] without merit in accordance with
         Superior Court precedent.

Rule 907 Notice, 1/8/19, at 9-10.

      Our review of the record supports the PCRA court’s conclusion that

Geiger’s fifth issue is meritless.     This Court’s double jeopardy/merger

discussion in Besch remains good law. The fact that sentencing merger is

now governed by statute does not alter this conclusion. Section 9765 of the

Judicial Code reads as follows:

         § 9765. Merger of sentences

            No crimes shall merge for sentencing purposes unless the
         crimes arise from a single criminal act and all of the
         statutory elements of one offense are included in the
         statutory elements of the other offense. Where crimes
         merge for sentencing purposes, the court may sentence the
         defendant only on the higher graded offense.

42 Pa.C.S.A. § 9765.   In support of this claim, Geiger largely focuses on the

statutory elements of each crime, yet ignores the requirement that the




                                     - 22 -
J-S62018-19



charges arise from the same criminal act.3          When a criminal defendant

commits multiple distinct acts, concepts of merger for sentencing purposes

are inapplicable. Commonwealth v. Pettersen, 49 A.3d 903, 911-12 (Pa.

Super. 2012). Here, Geiger’s drug dealing must be considered a separate act

from his act of using these illegally gained proceeds to form a pattern of

racketeering activity necessary for the corrupt organizations charge. Thus,

Geiger’s claim fails.

       In his sixth issue, Geiger claims that his jail sentence for cruelty to

animals’ conviction is illegal because it violates the terms of his negotiated

plea agreement. The PCRA court found no merit to this claim:

             It should be noted that [Geiger] entered an “open” plea
          with no agreement with respect to sentencing. At the time
          of his plea, [Geiger] was asked, “has anyone made any
          promises to you regarding the sentence the Court will
          impose if you plead guilty to these charges?” [Geiger]
          replied, “No.” Next, the Court asked [Geiger], “Do you
          understand that I am not bound by any formal sentence
          agreement unless I accept it on the record?” [Geiger]
          replied, “Yes.” Finally, the trial court fully advised [Geiger]
          as to the maximum penalties the court could impose,
          including ninety (90) days [of] incarceration and [Geiger]
          acknowledged the possible penalties. The record negates
          [Gieger’s] assertion.

Rule 907 Notice, 1/8/18, at 10.

____________________________________________


3 Within his argument on this issue, Geiger further asserts that plea counsel
promised him concurrent sentences as to these two sentence and therefore
claim his guilty plea was induced by counsel’s ineffectiveness. See Geiger’s
Brief at 44. Because Geiger did not raise this claim in his statement of issues,
we will not consider it further. See Pa.R.A.P. 2116(a), supra.


                                          - 23 -
J-S62018-19



      We concur with the PCRA court’s conclusion that Geiger’s responses

during the plea colloquy refutes his claim of an illegal sentence for this charge.

Pollard, supra. Although Geiger now relies on certain language in an email

exchange between plea counsel and the Commonwealth, the fact remains that

no such sentence was presented to the court to accept as part of Geiger’s

negotiated guilty plea. Thus, Geiger’s sixth issue fails.

      Within his brief, Geiger notes that his remaining three issues “have been

consolidated for the purposes of argument and expedience.” Geiger’s Brief at

52 n.1.   In his seventh issue, Geiger claims that the PCRA court erred in

denying his PCRA petition without first holding a hearing. In his eighth issue,

Geiger essentially claims that the PCRA court did not fully address the above

issues. Finally, in his ninth issue Geiger contends that the PCRA court erred

in permitting PCRA counsel to withdraw based upon his no-merit letter.

      Initially, we note that the Pennsylvania Rules of Appellate Procedure do

not permit such consolidation. See Pa.R.A.P. 2119(a). In addition, Geiger

inappropriately raises his eighth and ninth issue for the first time on appeal.

See generally, Pa.R.A.P. 302(a), supra. However, notwithstanding these

procedural violations, given our foregoing discussion and rejection of Geiger’s

previous issues, we summarily conclude: 1) the PCRA court did not err in

dismissing Geiger’s PCRA petition without first holding a hearing; 2) the PCRA

court addressed his issues fully; and 3) no error occurred in allowing PCRA

counsel to withdraw.




                                     - 24 -
J-S62018-19



     In sum, because all of Geiger’s claims are without merit, we affirm the

PCRA court’s order denying him post-conviction relief.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/2/2020




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