J-S17014-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT
                                                           OF
                                                      PENNSYLVANIA
                            Appellee

                     v.

MICHAEL THOMPSON,

                            Appellant               No. 3322 EDA 2018


            Appeal from the PCRA Order Entered March 13, 2018
            In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0013617-2012


BEFORE: BENDER, P.J.E., OLSON, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY BENDER, P.J.E.:                         FILED JUNE 05, 2019

      Appellant, Michael Thompson, appeals from the post-conviction court’s

March 13, 2018 order denying his petition under the Post Conviction Relief Act

(PCRA), 42 Pa.C.S. §§ 9541-9546. After careful review, we affirm.

      The PCRA court summarized the pertinent facts and procedural history

of this case, as follows:

            By way of background, [Appellant] was charged with, inter
      alia, Unlawful Contact with a Minor - Sexual Offenses,
      Dissemination of Photo/Film of Child Sex Acts, and Indecent
      Assault - [Without] Consent of Other. These charges were lodged
      against [Appellant] as a result of an incident that occurred on
      August 7, 2012, during which [Appellant] gave a beer to his
      sixteen year-old cousin and then commented about her body,
      after which he then placed his fingers inside her panties, about
      one inch from her vagina, without her consent[,] at his home after
      giving her a ride from school. While inside [Appellant’s] home,
      the victim observed photographs of young women who were
      possibly under the age of eighteen on [Appellant’s] computer. The
      victim reported the incident and what she observed to
J-S17014-19


     authorities[,] who obtained a search warrant for [Appellant’s]
     computer.     The search of the computer uncovered several
     photographs of children under the age of eighteen depicted in a
     sexualized manner and engaging in sex acts. (N.T.[,] 10/21/13,
     [at] 13-14).

            [Appellant] appeared before this [c]ourt on October 21,
     2013, and immediately prior to the commencement of jury
     selection[, he] entered a negotiated plea of nolo contendere to the
     above[-] listed charges.       In exchange for his plea[,] the
     Commonwealth agreed to recommend that a sentence of seven
     and one-half to fifteen years’ incarceration be imposed on
     [Appellant]. ([Id. at] 7). The Commonwealth advised [Appellant]
     that it would not be seeking a Megan’s Law assessment as to
     whether he was [a] sexually violent predator because [Appellant]
     was subject to lifetime registration due to a prior conviction. ([Id.
     at] 5, 12).

           After [Appellant] completed a colloquy form with the
     assistance of counsel and this [c]ourt conducted a colloquy of
     [Appellant], this [c]ourt accepted [Appellant’s] nolo [contendere]
     plea and imposed the recommended sentence. On October 29,
     2013, [Appellant] filed a motion to withdraw his nolo [contendere]
     plea. Said motion was heard and denied on March 25, 2014.
     [Appellant] did not file an appeal after his motion was denied.

           On April 25, 2014, [Appellant] filed a petition under the …
     PCRA[], seeking an order permitting him to file a notice of appeal
     nunc pro tunc. Said petition was granted on July 21, 2014,
     following which [Appellant] filed a timely notice of appeal and a
     Pa.R.A.P. 1925(b) Statement of Matters.

           On May 4, 2015, the Superior Court affirmed the judgment
     of sentence. ([Commonwealth v. Thompson, No.] 2077 EDA
     2014[, unpublished memorandum (Pa. Super. filed May 4,
     2015)]). [Appellant] did not file a petition seeking allowance of
     appeal. On June 2, 2016, [Appellant] filed a pro se PCRA petition.

                                     ***

           Counsel was appointed to represent him and on February 4,
     2017, counsel filed an amended petition. In it, counsel raised a
     single issue alleging that plea counsel was ineffective for
     permitting  [Appellant]   to    enter  a    plea   unknowingly,


                                     -2-
J-S17014-19


       unintelligently, and [in]voluntarily because [Appellant] stated that
       he did not agree with the facts proffered by the Commonwealth.

              After the Commonwealth filed a response and this [c]ourt
       carefully reviewed the entire record, this [c]ourt determined that
       [Appellant’s] claims [raised in both his pro se and counseled
       petitions] lacked merit and that an evidentiary hearing was
       unnecessary.     Consequently, this [c]ourt sent [Appellant] a
       Pa.R.Crim.P. 907 Notice of Intent to Dismiss on December 13,
       2017, and on January 16, 2018, this [c]ourt issued an order
       dismissing the petition.

             On January 16, 2018, [Appellant] filed a Notice of Appeal to
       the Superior Court. However, due to an error in the 907 Notice,
       [Appellant] withdrew the appeal so that this [c]ourt could send
       [Appellant] an amended 907 Notice. On February 13, 2018, this
       [c]ourt rescinded its order of January 16, 2018, dismissing
       [Appellant’s] PCRA petition and sent [Appellant] a corrected 907
       Notice. On March 6, 2018, [Appellant] filed a pro se response to
       the 907 notice wherein he raised [additional issues.]

                                               ***

             On March 13, 2018, this [c]ourt, having again reviewed the
       entire record, issued an order denying [Appellant] PCRA relief.
       [Appellant] thereafter filed a timely notice of appeal.

PCRA Court Opinion (PCO), 3/28/18, at 1-5.1

       On appeal, Appellant presents one question for our review:

       1. Did the PCRA court err in dismissing Appellant’s PCRA [p]etition
          without a hearing because plea counsel [was] ineffective for
          allowing Appellant to enter a plea when the factual recitation
          was not accepted and Appellant should be allowed to withdraw
          his plea because it was not knowing, intelligent, and voluntary?

Appellant’s Brief at 4.

____________________________________________


1 The court did not order Appellant to file a Pa.R.A.P. 1925(b) concise
statement of errors complained of on appeal. However, the court filed a Rule
1925(a) opinion on March 28, 2018, addressing the claims raised in
Appellant’s pro se petition, counsel’s amended petition, and Appellant’s pro se
response to the court’s Rule 907 notice.

                                           -3-
J-S17014-19



     We begin by recognizing:

            Our standard of review of a trial court order granting or
     denying relief under the PCRA calls upon us to determine whether
     the determination of the PCRA court is supported by the evidence
     of record and is free of legal error. The PCRA court’s findings will
     not be disturbed unless there is no support for the findings in the
     certified record.

     Pennsylvania has recast the two-factor inquiry regarding the
     effectiveness of counsel set forth by the United States Supreme
     Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct.
     2052, 80 L.Ed.2d 674 (1984), as the following three-factor
     inquiry:

        In order to obtain relief based on [an ineffective assistance
        of counsel] claim, a petitioner must establish: (1) the
        underlying claim has arguable merit; (2) no reasonable
        basis existed for counsel’s actions or failure to act; and (3)
        petitioner suffered prejudice as a result of counsel’s error
        such that there is a reasonable probability that the result of
        the proceeding would have been different absent such error.

     Trial counsel is presumed to be effective, and Appellant bears the
     burden of pleading and proving each of the three factors by a
     preponderance of the evidence.

     The right to the constitutionally effective assistance of counsel
     extends to counsel’s role in guiding his client with regard to the
     consequences of entering into a guilty plea.

        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. 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.

     Thus, to establish prejudice, the defendant must show that there
     is a reasonable probability that, but for counsel’s errors, he would
     not have pleaded guilty and would have insisted on going to trial.
     The reasonable probability test is not a stringent one; it merely
     refers to a probability sufficient to undermine confidence in the
     outcome.

                                    -4-
J-S17014-19



Commonwealth v. Lippert, 85 A.3d 1095, 1100 (Pa. Super. 2014) (quoting

Commonwealth v. Barndt, 74 A.3d 185, 191–92 (Pa. Super. 2013))

(cleaned up).

       In this case, aside from setting forth the law that governs our review of

his ineffectiveness claim, see Appellant’s Brief at 8-11, Appellant’s entire

argument regarding how his plea counsel acted ineffectively in this case is as

follows:

       Presently, Appellant did not accept the factual recitation. NT,
       10/21/2013, at 14-15. Instead of seeking to end the process and
       proceed to trial, plea counsel immediately transformed the
       process into a no contest plea without any consultation with
       Appellant. [Id.] at 16. There were clearly factual issues that
       Appellant contested. [Id.] at 15. The PCRA court baldly states
       that there was no manifest injustice. [PCO] at 16-18.[2] However,
       the facts were not accepted by Appellant and the transition to a
       no contest plea was immediate without any on the Record
       explanation from plea counsel. Plea counsel was ineffective for
       effectively forcing a plea upon Appellant. Therefore, Appellant
       respectfully requests remand for a new trial.

____________________________________________


2We point out that Appellant cites to a portion of the PCRA court’s opinion
wherein it addressed specific claims that he does not raise on appeal, i.e.,
       that the court “committed an abuse of discretion by denying him
       the right to withdraw his plea based on his failure to meet the
       manifest injustice standard because: 1.) he was not told the
       crimes he was pleading guilty to; 2.) he was never told as part of
       his sentence that he would have to register as a sexual offender
       every three months for the remainder of his life; 3.) [Appellant]
       did not commit the crimes he pleaded guilty to as set forth in the
       information; and 4.) [Appellant] was advised that he freely could
       withdraw his plea within ten days of the date he entered his plea
       and was sentenced.

PCO at 16.


                                           -5-
J-S17014-19



Appellant’s Brief at 12.

      Appellant’s scant argument fails to convince us that his plea counsel

acted ineffectively.   At the plea proceeding, the Commonwealth stated the

facts and the court asked if Appellant agreed with them, to which Appellant

replied, “No, I don’t agree with them.” N.T. Plea/Sentencing, 10/21/13, at

14. The following exchange then occurred:

      THE COURT: Do you want to talk to your attorney?

      [Appellant]: I’m agreeing to this, but I am not agreeing to that.

      THE COURT: Well, we’re not saying you agree to everything the
      Commonwealth said, but in substance do you agree with that?

      [Appellant]: I’m just telling you. I don’t agree with that. I agree
      to this, but I don’t agree to that.

      THE COURT: [Counsel], do you want to talk to your client?

      [Defense Counsel]: Yes, sir.

      (Pause.)

                                     ***

      [Defense Counsel]: Your Honor, is there any way that we can have
      some kind --

      THE COURT: Well, he can plead nolo [contendere]. You can make
      his plea nolo [contendere], that you don’t contest the facts.

      [The Commonwealth]: Then [Appellant] doesn’t have to agree
      with the facts. He’s just found guilty of the facts.

      THE COURT: All right. We’re going to change this. So what I’ve
      discussed with you before, a nolo contender[e] plea is a no
      contest, basically saying I’m not agreeing with -- or I have no
      position. I’m not pleading guilty. I’m not contesting the facts,
      but I’m not pleading guilty. Do you understand what I’m saying?

      [Appellant]: Yes.



                                     -6-
J-S17014-19


      THE COURT: Okay. And everything I told you about a trial, about
      picking a jury, about no witnesses and about giving up all your
      pretrial motions, all of that applies to a no contest plea the same
      way the colloquy, the questions I just asked you regarding a guilty
      plea. Do you understand that?

      [Appellant]: Yes.

      THE COURT: So agreement of counsel, this will be classified as a
      no contest plea?

      [The Commonwealth]: That’s fine.

N.T. Plea/Sentencing, 10/21/13, at 14-17.

      Preliminarily, this record belies Appellant’s claim that counsel did not

consult with him about changing from a guilty plea to a nolo contendere plea.

Rather, the proceedings were paused (albeit for an unspecified amount of

time) while counsel and Appellant had a discussion, presumably about that

decision.   Additionally, the court explained the nolo contendere plea to

Appellant, and Appellant indicated that he understood. Nothing in the record

indicates that counsel forced Appellant to enter the plea, as Appellant

contends on appeal.

      We also agree with the PCRA court that there is no arguable merit to

Appellant’s claim that his plea is invalid because he refused to accept the

Commonwealth’s factual recitation.     As the PCRA court correctly observes,

Appellant “did not have to agree to the facts to enter a valid [nolo contendere]

plea.” PCO at 7. Indeed, this Court has explained that,

      although a nolo contendere plea has the same effect as a guilty
      plea for purposes of sentencing and is considered a conviction, it
      is not an admission of guilt. Unlike a guilty plea, a nolo contendere
      plea does not involve an acknowledgment as to having committed
      an illegal act. Rather, the nolo contendere plea admits that the

                                      -7-
J-S17014-19


       allegations, if proven, meet the elements of the offense or
       offenses charged. Hence, in pleading no contest, [a defendant
       does] not admit to having committed the acts alleged.

Commonwealth v. Moser, 999 A.2d 602, 606 (Pa. Super. 2010) (cleaned

up).

       Therefore, Appellant’s unwillingness to admit to the facts acts alleged

by the Commonwealth demonstrates that a nolo contendere plea was

appropriate.     Accordingly, Appellant’s underlying claim that his nolo

contendere plea was invalid lacks arguable merit, and we also see nothing

unreasonable about his attorney’s decision to permit him to enter that plea.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/5/19




                                     -8-
