J-S45031-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA           :   IN THE SUPERIOR COURT OF
                                       :        PENNSYLVANIA
                  Appellee             :
                                       :
            v.                         :
                                       :
RYLAND M. JONES                        :
                                       :
                  Appellant            :       No. 351 MDA 2018


             Appeal from the PCRA Order December 20, 2017
          in the Court of Common Pleas of Lackawanna County
           Criminal Division at No.: CP-35-CR-0002271-2011


BEFORE:   OTT, J., MUSMANNO, J., and PLATT*, J.

MEMORANDUM BY PLATT, J.:                      FILED NOVEMBER 06, 2018

     Appellant, Ryland M. Jones, appeals nunc pro tunc from the order of

December 20, 2017, which dismissed, without a hearing, his first counseled

petition brought under the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A.

§§ 9541-9546.      On appeal, Appellant claims he received ineffective

assistance of counsel. For the reasons discussed below, we affirm.

     We take the underlying facts and procedural history in this matter

from our independent review of the certified record.   On October 4, 2011,

the Commonwealth charged Appellant with one count each of aggravated

assault, burglary, aggravated indecent assault, criminal trespass, public




____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S45031-18


drunkenness, and simple assault.1 Briefly, on September 8, 2011, the police

arrested Appellant during a home invasion. The victim called police because

she heard someone breaking into her home.            During the approximately

three-minute period between her call and the police arrival, Appellant broke

through the door of the victim’s home, rifled through her purse, beat the

victim with a piece of the broken door, and sexually assaulted her.      The

police observed Appellant groping the victim.         When Appellant saw the

police, he charged towards them and one of the police officers had to tase

him three times before they could take him into custody.

       On February 3, 2012, Appellant elected to enter an open nolo

contendere plea to one count each of aggravated assault, burglary, and

aggravated indecent assault.          In return, the Commonwealth dropped the

remaining charges. Following receipt of a pre-sentence investigation report

and a Megan’s Law evaluation, on May 21, 2012, the trial court sentenced

Appellant to an aggregate term of incarceration of not less than twenty-one

nor more than forty-two years, to be followed by a five-year term of special

probation.     The trial court also found Appellant to be a sexually violent

predator.

       On May 29, 2012, Appellant filed a timely, counseled motion for

reconsideration of sentence, which the trial court denied on June 7, 2012.
____________________________________________


1 18 Pa.C.S.A. §§ 2702(a)(1), 3502(a), 3125(a)(2), 3503(a)(1)(i), 5505,
and 2701(a)(3), respectively.



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On June 4, 2012, defense counsel forwarded to the court a motion that

Appellant had sent to him. In the motion, Appellant sought appointment of

new counsel to argue his post-sentence motion, claiming that prior counsel

was ineffective and coerced him into pleading nolo contendere.2               (See

Dismissal of Counsel and Post Sentence Motions with Motion for New

Counsel, 6/04/12, at unnumbered pages 1-4). On September 17, 2012, the

trial court appointed new counsel for Appellant.           For reasons not apparent

from the record, there was no further action on this matter until January 29,

2013, when Appellant, acting pro se, filed a PCRA petition.            On June 12,

2013, Appellant, again acting pro se, filed a second PCRA petition.

       On August 13, 2014, previously appointed counsel filed a petition to

amend Appellant’s PCRA petition, which the PCRA court treated as an

amended PCRA petition.           On November 3, 2017, the PCRA court issued

notice of its intent to dismiss the petition pursuant to Pennsylvania Rule of

Criminal Procedure 907(1). Appellant, through counsel, filed a response to

the Rule 907 notice on November 27, 2017.               On December 20, 2017, the

court denied Appellant’s PCRA petition.

       On February 1, 2018, Appellant filed a petition for leave to appeal

nunc pro tunc, which the PCRA court granted. Appellant filed a timely notice

of appeal on February 16, 2018.                The PCRA court subsequently directed
____________________________________________


2Appellant also sent an identical copy of the pro se motion to the trial court,
which the court filed on June 15, 2012.



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Appellant to file a concise statement of errors complained of on appeal. See

Pa.R.A.P. 1925(b).     Appellant filed a timely Rule 1925(b) statement on

March 20, 2018. See id. On April 17, 2018, the court issued an opinion.

See Pa.R.A.P. 1925(a).

      On appeal, Appellant raises the following questions for our review.

      I.    Whether the [PCRA c]ourt erred in denying [Appellant’s
            PCRA petition]?

      II.   Whether the [PCRA c]ourt erred in denying [Appellant’s
            PCRA petition], without conducting a hearing, when
            genuine issues of material fact existed?

(Appellant’s Brief, at 5).

      We review the denial of a post-conviction petition to determine

whether the record supports the PCRA court’s findings and whether its order

is otherwise free of legal error.   See Commonwealth v. Faulk, 21 A.3d

1196, 1199 (Pa. Super. 2011).       To be eligible for relief pursuant to the

PCRA, Appellant must establish, inter alia, that his conviction or sentence

resulted from one or more of the enumerated errors or defects found in 42

Pa.C.S.A. § 9543(a)(2).      See 42 Pa.C.S.A. § 9543(a)(2).      He must also

establish that the issues raised in the PCRA petition have not been

previously litigated or waived.      See 42 Pa.C.S.A. § 9543(a)(3).          An

allegation of error “is waived if the petitioner could have raised it but failed

to do so before trial, at trial, during unitary review, on appeal or in a prior

state post[-]conviction proceeding.” 42 Pa.C.S.A. § 9544(b). Further,




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             . . . a PCRA petitioner is not automatically entitled to an
       evidentiary hearing.    We review the PCRA court’s decision
       dismissing a petition without a hearing for an abuse of
       discretion.

                  [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. Miller, 102 A.3d 988, 992 (Pa. Super. 2014) (citations

omitted).

       On appeal, Appellant claims that he received ineffective assistance of

plea counsel.    (See Appellant’s Brief, at 9-16).      Specifically, Appellant

contends that plea counsel allowed him to enter his plea despite Appellant’s

lack of understanding “of what he was doing and agreeing to.” (Id. at 13).

To the extent that it can be determined from Appellant’s vague argument,

he contends that, during the plea hearing, he did not agree with some of the

underlying facts as enunciated by the assistant district attorney because,

due to his extreme intoxication, he could not remember the night in

question. (See N.T. Plea Hearing, 2/03/12, at 5-7; Appellant’s Brief at 14-

15).    Further, Appellant contends that counsel and the trial court’s

explanations of the difference between a plea of nolo contendere and a plea


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of guilty were insufficient to clear up his confusion and render his plea

voluntary. (See N.T. Plea Hearing, at 7-10; Appellant’s Brief, at 15-16). We

disagree.

      “A criminal defendant has the right to effective counsel during a plea

process as well as during trial.”   Commonwealth v. Rathfon, 899 A.2d

365, 369 (Pa. Super. 2006) (citation omitted).      Further, “[a]llegations of

ineffectiveness in connection with the entry of a [nolo contendere] plea will

serve as a basis for relief only if the ineffectiveness caused the defendant to

enter an involuntary or unknowing plea.”      Commonwealth v. Hickman,

799 A.2d 136, 141 (Pa. Super. 2002) (citation omitted). Also, “[w]here 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. (internal

quotation marks and citations omitted).

      We presume that counsel is effective, and Appellant bears the burden

to prove otherwise. See Commonwealth v. Bennett, 57 A.3d 1185, 1195

(Pa. 2012). The test for ineffective assistance of counsel is the same under

both the Federal and Pennsylvania Constitutions.          See Strickland v.

Washington, 466 U.S. 668, 687-88 (1984); Commonwealth v. Jones,

815 A.2d 598, 611 (Pa. 2002). Appellant must demonstrate that: (1) his

underlying claim is of arguable merit; (2) the particular course of conduct

pursued by counsel did not have some reasonable basis designed to


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effectuate his interests; and (3) but for counsel’s ineffectiveness, there is a

reasonable probability that the outcome of the proceedings would have been

different. See Commonwealth v. Pierce, 786 A.2d 203, 213 (Pa. 2001),

abrogated on other grounds by, Commonwealth v. Grant, 813 A.2d 726

(Pa. 2002). A failure to satisfy any prong of the test for ineffectiveness will

require rejection of the claim. See Jones, supra at 611. Where, as here,

Appellant pleaded nolo contendere, in order to satisfy the prejudice

requirement, he must show that “there is a reasonable probability that, but

for counsel’s errors, he would not have pleaded [nolo contendere] and would

have insisted on going to trial.” Rathfon, supra at 370 (citation omitted).

Appellant has utterly failed to do so.

      This Court has held that where the record clearly shows that the court

conducted a thorough plea colloquy and that the defendant understood his

rights and the nature of the charges against him, the plea is voluntary. See

Commonwealth v. McCauley, 797 A.2d 920, 922 (Pa. Super. 2001). In

examining whether the defendant understood the nature and consequences

of his plea, we look to the totality of the circumstances.      See id.   At a

minimum, the trial court must inquire into the following six areas:

      (1)   Does the defendant understand the nature of the charges
            to which he is pleading [nolo contendere]?

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

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


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

        (5)   Is the defendant aware of the permissible ranges 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?

Id. (citation omitted); see also Pa.R.Crim.P. 590, Comment.

        Defense counsel or the attorney for the Commonwealth, as permitted

by the court, may conduct this examination.            See Pa.R.Crim.P. 590,

Comment.       Moreover, the examination may consist of both a written

colloquy that the defendant read, completed, and signed, and made a part of

the record; and an on-the-record oral examination.       See id.     Lastly, we

note:

        [A] plea of nolo contendere does not, by its very nature, require
        the pleading defendant to concede his or her guilt. . . . [A] plea
        of nolo contendere is a plea by which a defendant does not
        expressly admit his guilt, but nonetheless waives his right to a
        trial and authorizes the court for purposes of sentencing to treat
        him as if he were guilty. . . .

Commonwealth v. Lewis, 791 A.2d 1227, 1234 (Pa. Super. 2002), appeal

denied, 806 A.2d 859 (Pa. 2002) (quotation marks and citation omitted).

        Here, Appellant signed a written plea colloquy and engaged in an oral

colloquy with the trial court. (See Written No Contest Plea, 2/03/12, at 3;

N.T. Plea Hearing, 2/03/12, at 2-11).       We note that, while Appellant did

contest some of the underlying facts as enunciated by the assistant district

attorney, both counsel and the trial court correctly explained to him that by

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pleading nolo contendere he was not admitting guilt but waiving his right to

trial and authorizing the trial court to sentence him as if he had pleaded

guilty. (See N.T. Plea Hearing, at 5-7); see also Lewis, supra at 1234.

Moreover, when the trial court told him, “we would give you a trial . . . and

you would have a right to defend (against the allegations),” Appellant stated

he understood that and understood that by pleading nolo contendere he was

giving up that right.    (Id. at 7).    Appellant then made an impromptu

statement wherein he admitted that he broke into the victim’s house, picked

up a piece of the broken door and beat her.       (See id. at 8).   He further

admitted to charging at the police officer. (See id.). In fact, despite not

being required to, the only allegation he did not admit to was the sexual

assault.   (See id. at 8-9).   Appellant stated that he wanted to plead nolo

contendere, he understood all the rights he was giving up, he agreed that he

signed the written plea colloquy and had sufficient time to go over it with

counsel, and was pleased with counsel’s representation. (See id. at 2-3).

      In the written plea colloquy, Appellant acknowledged that he had read

the charges against him, understood what he was pleading nolo contendere

to, and had fully discussed the case with counsel. (See Written No Contest

Plea, at 1).   He was aware of the maximum possible sentences for all

charges, knew that he could receive consecutive sentences; that no one had

made any promises to him in return for his plea; he was pleading of his own

free will, and was satisfied with counsel’s representation. (See id. at 2).


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      Moreover, sentencing took place over three months after the entry of

the nolo contendere plea.      At no point prior to or during sentencing did

Appellant express any dissatisfaction with counsel or indicate any wish to

withdraw his plea.     It was not until after Appellant received a lengthy

sentence that he began expressing dissatisfaction with counsel and stating

that he wished to withdraw his plea. Further, at no point, including during

the instant PCRA proceedings, has Appellant claimed that he was actually

innocent of the charges or that, but for counsel’s inadequate representation,

he would have elected to proceed to trial. It is not even clear that, at this

juncture, Appellant is stating that he wishes to go to trial, rather in his brief,

Appellant vaguely claims that if counsel had explained things better he

would have had an adequate understanding of the consequence of pleading

nolo contendere. (See Appellant’s Brief, at 16).

      The statements made during a plea colloquy bind a criminal defendant.

See Commonwealth v. Muhammad, 794 A.2d 378, 384 (Pa. Super.

2002). Thus, a defendant cannot assert grounds for withdrawing the plea

that contradict statements made at that time.         See Commonwealth v.

Stork, 737 A.2d 789, 790-91 (Pa. Super. 1999), appeal denied, 764 A.2d

1068 (Pa. 2000).     Further, “[t]he law does not require that appellant be

pleased with the outcome of his decision to enter a plea of [nolo

contendere]: ‘All that is required is that [appellant’s] decision to plead [nolo

contendere]     be   knowingly,     voluntarily    and    intelligently   made.’”


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Commonwealth v. Yager, 685 A.2d 1000, 1004 (Pa. Super. 1996) (en

banc), appeal denied, 701 A.2d 577 (Pa. 1997) (citation omitted).       Here,

Appellant has not shown that his decision to enter the plea was involuntary.

He has therefore failed to prove prejudice.    Thus, his claims of ineffective

assistance of plea counsel lack merit.

      In his final claim, Appellant argues that the PCRA court erred in

dismissing his petition without an evidentiary hearing.      (See Appellant’s

Brief, at 16-19). The Pennsylvania Rules of Criminal Procedure provide the

PCRA court with the discretion to dismiss a PCRA petition without an

evidentiary hearing if it is patently without merit.   See Pa.R.Crim.P. 907.

Because Appellant’s ineffective assistance of counsel claim lacks merit, he is

not entitled to an evidentiary hearing. See Miller, supra at 992.

      Accordingly, for the reasons discussed above, we affirm the PCRA

court’s dismissal of Appellant’s PCRA petition without a hearing.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/6/2018




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