J-S73026-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                :   IN THE SUPERIOR COURT OF
                                                :        PENNSYLVANIA
                                                :
                v.                              :
                                                :
                                                :
    LARRY WAYNE CATHEY                          :
                                                :
                       Appellant                :   No. 799 MDA 2019

              Appeal from the PCRA Order Entered April 17, 2019
     In the Court of Common Pleas of Dauphin County Criminal Division at
                       No(s): CP-22-CR-0006171-2016


BEFORE: SHOGAN, J., LAZARUS, J., and MUSMANNO, J.

MEMORANDUM BY LAZARUS, J.:                     FILED: MARCH 3, 2020

       Larry Cathey appeals from the order, entered in the Court of Common

Pleas of Dauphin County, denying his petition filed pursuant to the Post

Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. After our review,

we affirm.

       On October 2, 2016, Cathey was charged with criminal attempt-

homicide and unlawful restraint.1         On October 18, 2017, Cathey entered a

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1 On September 30, 2016, the victim, who had a relationship with and lived
with Cathey, informed Cathey she was moving to Philadelphia with her family.
Cathey became enraged, attacked the victim with scissors, a kitchen knife and
the claw end of a hammer, causing severe injuries. Cathey then forced the
victim to take a “massive amount of Trazodone pills[,]” at which point she lost
consciousness. The victim woke up about 24 hours later. During the attack,
Cathey threatened the victim that he was going to kill her, and that he was
going to kill himself. See N.T. Guilty Plea and Sentencing, 10/17/18, at 5-6.
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negotiated guilty plea and the court sentenced him to 17 to 34 years’

imprisonment. Cathey did not file a direct appeal.

       On September 24, 2018, Cathey filed a timely pro se PCRA petition. The

PCRA court appointed counsel, who, following review, determined Cathey’s

claims were meritless. Counsel filed a no-merit letter2 and sought withdrawal.

The PCRA court, after conducting independent review, agreed with counsel’s

assessment. On March 11, 2019, the PCRA court filed its notice of intent to

dismiss Cathey’s petition pursuant to Pa.R.Crim.P. 907. On April 17, 2019,

the PCRA court denied Cathey’s PCRA petition and granted counsel’s petition

to withdraw. This pro se appeal followed.

       Cathy raises three issues for our review:

          1. Whether the PCRA court erred in finding that prior counsel
             was not ineffective for inducing an unlawful guilty plea under
             the unconstitutionality [sic] of 42 Pa.C.S.A. § 9714?

          2. Whether the PCRA court erred in finding that prior counsel
             was not ineffective for failing to advise [Cathey] of the
             defense of insanity that resulted in an unlawfully induced
             guilty plea?

          3. Whether the PCCRA court erred in finding that prior counsel
             was not ineffective for failing to object to the alternative
             sentence enunciated in 42 Pa.C.S.A. § 9782(b)(5)?

Appellant’s Brief, at 3.

       We review an order dismissing a petition under the PCRA in the light

most favorable to the prevailing party at the PCRA level. Commonwealth v.

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2 See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).

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Burkett, 5 A.3d 1260, 1267 (Pa. Super. 2010). This review is limited to the

findings of the PCRA court and the evidence of record. Id. We will not disturb

a PCRA court’s ruling if it is supported by evidence of record and is free of

legal error. Id. This Court may affirm a PCRA court’s decision on any grounds

if the record supports it. Id. Further, we grant great deference to the factual

findings of the PCRA court and will not disturb those findings unless they have

no support in the record. Commonwealth v. Carter, 21 A.3d 680, 682 (Pa.

Super. 2011). However, we afford no such deference to its legal conclusions.

Commonwealth v. Paddy, 15 A.3d 431, 442 (Pa. 2011); Commonwealth

v. Reaves, 923 A.2d 1119, 1124 (Pa. 2007). Where the petitioner raises

questions of law, our standard of review is de novo and our scope of review

plenary. Commonwealth v. Colavita, 993 A.2d 874, 886 (Pa. 2010).

      In order to establish a claim of ineffectiveness of counsel, petitioner

must demonstrate counsel’s performance was deficient and he was prejudiced

by that deficient performance.

      To properly plead ineffective assistance of counsel, a petitioner
      must plead and prove: (1) that the underlying issue has arguable
      merit; (2) counsel’s actions lacked an objective reasonable basis;
      and (3) actual prejudice resulted from counsel’s act or failure to
      act. If a petitioner fails to plead or meet any elements of the
      above-cited test, his claim must fail.

Commonwealth v. Burkett, 5 A.3d 1260, 1271-72 (Pa. Super. 2010)

(internal citations and quotations omitted). Prejudice is established if there is

“a reasonable probability that, but for counsel’s errors, the result of the

proceeding would have been different.” Id.

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        Cathey first argues counsel was ineffective for inducing a guilty plea

“under the unconstitutionality of 42 Pa.C.S.A. § 9714[.]” Pursuant to section

9714, Cathey was notified that the present criminal attempt homicide charge

was a third strike offense, for which a mandatory minimum of 25 years would

be applicable. See 42 Pa.C.S.A. § 9714(a)(2).3 See Appellant’s Brief, at 3.

He claims that since section 9714 is unconstitutional, his guilty plea was

tainted and thus unlawfully induced. Cathey cites Commonwealth v. Butler,

760 A.2d 384 (Pa. 2000), to support this claim.

        In Butler, our Supreme Court held that section 9714(a)(1), which

imposes a mandatory sentence on a high risk dangerous offender, violates

due process because it places upon the defendant the burden of rebutting the

presumption that he is a high risk dangerous offender. Id. at 389. However,

it is section 9714(a)(2), the “three strikes rule,” not section 9714(a)(1), that

is applicable here.     By its terms, section 9714(a)(2) requires a mandatory

minimum sentence of 25 years’ imprisonment upon a conviction of a third

crime of violence. 42 Pa.C.S.A. § 9714)(a)(2).4 As more recently explained

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3 Cathey’s prior convictions included a third-degree murder conviction and
aggravated assault conviction; as a result, the standard range sentence for
criminal attempt-homicide was 20 to 40 years’ imprisonment, and for unlawful
restraint, 2½ to 5 years. As part of the negotiated plea, the Commonwealth
waived the 25-year mandatory minimum. See N.T. Guilty Plea Hearing,
10/18/17, at 2-3.

4   Section 9714(a)(2) provides:




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by our Supreme Court in Commonwealth v. Belak, 825 A.2d 1252 (Pa.

2003):

       Unlike the unconstitutional section 9714(a)(1), the plain
       language of section 9714(a)(2) does not impose any kind
       of burden of proof on the defendant, nor does it require the
       defendant to rebut any kind of presumption. Rather, section
       9714(a)(2) effectively places the burden on the Commonwealth
       to show that the offender has been convicted of three crimes of
       violence[.]

Id. at 1256 (emphasis added; citation omitted).       The Belak Court also held

that section 9714(a)(2) was severable from the provision found to be

unconstitutional and capable of being executed in accordance with legislative

intent.   Id. at 1257       “[S]ection 9741(a)(2) is not unconstitutional simply

because we declared section 9714(a)(1) unconstitutional in Butler.” Id.5

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          Where the person had at the time of the commission of
          the current offense previously been convicted of two
          or more such crimes of violence arising from separate
          criminal transactions, the person shall be sentenced
          to a minimum sentence of at least 25 years of total
          confinement, notwithstanding any other provision of this
          title or other statute to the contrary. Proof that the offender
          received notice of or otherwise knew or should have known
          of the penalties under this paragraph shall not be required.
          Upon conviction for a third or subsequent crime of violence
          the court may, if it determines that 25 years of total
          confinement is insufficient to protect the public safety,
          sentence the offender to life imprisonment without parole.

42 Pa.C.S.A. § 9714(a)(2)(emphasis added).

5 The Belak Court stated that the legislative history of section 9714 also
supports the conclusion that section 9714(a)(2) is severable from section



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       We conclude, therefore, that Cathey’s underlying claim, that his guilty

plea was unlawfully induced because of the unconstitutionality of section

9714, lacks arguable merit.         Plea counsel, therefore, was not ineffective.6

Burkett, supra. See Commonwealth v. Sneed, 45 A.3d 1096, 1115 (Pa.

2012) (“Counsel will not be deemed ineffective for failing to raise a meritless

claim.”).

       In his next issue, Cathey claims counsel was ineffective for failing to

advise him of the insanity defense, and counsel’s ineffectiveness resulted in

an unintelligent, involuntary and unknowing plea.7         Consequently, Cathey

claims his guilty plea was unlawfully induced.

       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.

Timchak, 69 A.3d 765, 769 (Pa. Super. 2013). The law does not require that

the defendant be pleased with the outcome of his decision to enter a plea of

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9714(a)(1). “Following our decision in Butler, the legislature removed the
invalid presumption from section 9714(a)(1), as previously noted, but it
reenacted section 9714(a)(2) verbatim. See 42 Pa.C.S. § 9714 (Supp.
2002).” Commonwealth v. Belak, 825 A.2d 1252, 1256-57 (Pa. 2003).

6As counsel notes in his petition to withdraw, Cathey faced a standard range
sentence of 22½ to 45 years’ imprisonment for the current offenses. The
negotiated sentence, 17 to 34 years’ imprisonment, was less than any
mitigated range for the crimes for which he was charged (criminal attempt
homicide and unlawful restraint). See Petition to Withdraw, 1/14/19, at ¶ 20.
7  The PCRA court notes that Cathey has a documented history of mental
illness. See Notice Pursuant to Pa.R.Crim.P. 907, 3/12/19, at 1.

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guilty. All that is required is that his decision to plead guilty be knowingly,

voluntarily, and intelligently made. Commonwealth v. Anderson, 995 A.2d

1184, 1192 (Pa. Super. 2010).      A guilty plea colloquy must “affirmatively

demonstrate the defendant understood what the plea connoted and its

consequences.”    Id. at 1002 (quoting Commonwealth v. Lewis, 708 A.2d

497, 501 (Pa. Super. 1998)).

      This determination is to be made by examining the totality of the
      circumstances surrounding the entry of the plea. 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 entry of the plea 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.

Commonwealth v. Eichinger, 108 A.3d 821, 832 (Pa. 2014).               “Once a

defendant has entered a plea of guilty, it is presumed that he was aware of

what he was doing.”    Commonwealth v. Bedell, 954 A.2d 1209, 1212 (Pa.

Super. 2008), (quoting Commonwealth v. Stork, 737 A.2d 789, 790 (Pa.

Super. 1999)).

      In order to ensure a defendant understands the connotations of the plea

and its consequences, Pennsylvania Rule of Criminal Procedure 590 requires

the court to inquire into the following areas during the plea colloquy: “(1) the

nature of the charges; (2) the factual basis of the plea; (3) the right to trial

by jury; (4) the presumption of innocence; (5) the permissible range of

sentences; and (6) the judge's authority to depart from any recommended




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sentence.” Commonwealth v. Muhammad, 794 A.2d 378, 383 (Pa. Super.

2002) (citation omitted); Pa.R.Crim.P. 590, comment.

      Here, the record demonstrates that Cathey’s plea colloquy covered each

of the required areas. See N.T. Guilty Plea and Sentencing, 10/18/17, at 2-

10. Cathey unequivocally stated that he understood all the questions being

asked, and was entering his guilty plea voluntarily.    Id. at 4.   During the

colloquy, plea counsel informed the court that Cathey “is in his sixties. He

does have a history of mental health issues as well as substance abuse.” Id.

at 6. Further, counsel stated that Cathey had a seventh-grade education and

did not read and write, however, counsel stated that he had “read and

explained everything to him on the colloquy very carefully.” Id. Only after

the court was satisfied that Cathey knew all of his rights, which rights he was

waiving, what sentence he faced, and was making an intelligent and voluntary

decision, did it accept Cathey’s negotiated guilty plea. Id. at 8.    Further,

Cathey also signed a written guilty plea colloquy, detailing, inter alia, the

rights he waived if he pled guilty, including any possible defense. Guilty Plea

Colloquy, 10/18/17, at 3. See Muhammad, 794 A.2d at 384 (appellant is

bound by statements made during plea colloquy and may not successfully

assert claims that contradict such statements).

      Instantly, plea counsel obtained and reviewed Cathey’s medical records

in furtherance of a possible insanity defense. As PCRA counsel points out in

his motion to withdraw, however, the Commonwealth could prove that

Cathey’s actions occurred over many hours and showed criminal intent.

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Essentially, the fact of a diagnosis of mental illness does not necessarily

eliminate criminal intent.        As a practical matter, and as PCRA counsel

accurately points out, a “not guilty by reason of insanity” verdict rarely occurs

after a jury trial.   See Hon. Bradford H. Charles, Symposium–Lawyering for

the Mentally Ill: Pennsylvania’s Definitions of Insanity and Mental Illness- A

Distinction with a Difference? 12 Temple Pol. & Civ. Rts. L.Rev. 265 (Spring

2003); Petition to Withdraw, supra at Exhibit A. It was reasonable for plea

counsel to weigh the unlikelihood of success with the common law insanity

defense,8 against the certainty of a significantly lesser sentence with a
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8  To establish an insanity defense, a defendant must prove “by the
preponderance of the evidence that the actor was legally insane at the time
of the commission of the offense.” 18 Pa.C.S.A. § 315(a). “Legally insane” is
defined as “at the time of the commission of the offense, the actor was
laboring under such a defect of reason, from disease of the mind, as not to
know the nature and quality of the act he was doing or, if the actor did know
the quality of the act, that he did not know that what he was doing was
wrong.” 18 Pa.C.S.A. § 315(b). These definitions of the legal insanity defense,
commonly known as M'Naghten’s Rule, are derived from the seminal case of
Regina v. M'Naghten, 8 Eng. Rep. 718 (1843), where the court held that


       jurors ought to be told . . . that to establish a defence on the
       ground of insanity, it must be clearly proved that, at the time of
       the committing of the act, the party accused was laboring under
       such a defect of reason, from disease of mind, as not to know the
       nature and quality of the act he was doing; or, if he did know it,
       that he did not know he was doing what was wrong.

Id. at 722. The rule sets forth two separate aspects of the defense in
Pennsylvania: a cognitive incapacity prong and a moral incapacity provision.
“Where the defendant alleges that he did not know what he was doing, he is
presenting a cognitive incapacity insanity defense. On the other hand, if the
defendant submits that he did not understand that what he was doing was



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negotiated plea. The balance clearly weighs in favor of recommending the

plea.

        We conclude, therefore, that counsel had a reasonable, strategic basis

for pursuing a favorable guilty plea for Cathey, one that took into

consideration the severity of the crime and Cathey’s need for mental health

treatment. Burkett, supra.           Counsel, therefore, was not ineffective.   Cf.

Commonwealth v. Gainor, 432 A.2d 1116 (Pa. Super. 1981) (no reasonable

basis for counsel’s failure to investigate possibility of insanity defense where

evidence established defendant attacked victim, a priest, because he believed

he was “possessed” by victim, exhibited “bizarre behavior” while in county jail

that resulted in his being committed, had lengthy psychiatric history, and

psychological report concluded his judgment was defective and he was

operating at borderline psychotic level).

        Finally, Cathey also claims counsel was ineffective for failing to object

to the alternative sentence enunciated in section 9728(b)(5) of the Sentencing

Code. He argues that is a violation of separation of powers. Section 9728,

commonly known as Act 84, authorizes the county correctional facility to which

a defendant has been sentenced or the Pennsylvania Department of

Corrections (DOC) to make monetary deductions from an inmate’s account for
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wrong, he is advancing a moral incapacity defense.” See Commonwealth
v. Andre, 17 A.3d 951, 959 (Pa. Super. 2011). Further, a determination of
guilty beyond a reasonable doubt must be made before the burden shifts to
the defendant to establish the insanity defense by a preponderance of the
evidence. See Commonwealth v. duPont, 730 A.2d 970, 979 (Pa. Super.
1999); Commonwealth v. Trill, 543 A.2d 1106, 1127 (Pa. Super. 1988).

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the purpose of collecting restitution, fees, costs and other court-ordered

obligations. See 42 Pa.C.S.A. § 9728(b)(5).     A claim challenging whether

deductions can be made from one’s account does not challenge the legality of

a sentence and, therefore, is not cognizable under the PCRA.             See

Commonwealth v. Danysh, 833 A.2d 151 (Pa. Super. 2003); see also 42

Pa.C.S.A. § 9543(a)(2) (eligibility for relief). Cf. Commonwealth v. Boyd,

73 A.3d 1269, 1270 (Pa. Super. 2013) (en banc) (claim that sentencing court

failed to consider defendant’s ability to pay before imposing fines implicates

legality of sentence).

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 03/03/2020




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