J-S54002-15



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                          Appellee

                     v.

RONALD MCDADE,

                          Appellant                   No. 1343 EDA 2014


                  Appeal from the PCRA Order April 18, 2014
             In the Court of Common Pleas of Montgomery County
                           Criminal Division at No(s):
                           CP-46-CR-0001086-2008
                           CP-46-CR-0007141-2007
                           CP-46-CR-0007143-2007


BEFORE: BOWES, PANELLA, AND FITZGERALD, *JJ.

MEMORANDUM BY BOWES, J.:                          FILED OCTOBER 09, 2015

       Ronald McDade appeals from the April 18, 2014 order denying him

PCRA relief. We affirm.

       Appellant was charged at three separate criminal actions for various

sexual offenses.     At approximately 5:15 p.m. on September 19, 2007,

Appellant was masturbating in his car in the parking lot of a store when a

mother and her two young daughters walked past the car and viewed his

activity.   Appellant then left the parking lot, and, thirty minutes after this

incident, Appellant blocked the path of a fifteen year old girl who was

walking down an alley by stopping his car in front of her. He asked the girl if

she wanted to watch him and reached toward the area of his waist.

*
    Former Justice specially assigned to the Superior Court.
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Appellant also asked her if she wanted a ride. After the luring victim said

that she did not, Appellant drove away.

      Appellant was arrested later that evening and was released on bail.

About seven weeks later, on January 19, 2008, Appellant was arrested for

forcibly raping a thirteen-year-old girl, G.K., when she was visiting her friend

who lived at the same residence as Appellant.        Appellant also penetrated

G.K.’s vagina and anus with his fingers, placed his mouth on her vagina, and

forced his penis into her mouth.

      On May 29, 2009, Appellant entered an open nolo contendere plea at

all three actions to charges of rape, involuntary deviate sexual intercourse,

aggravated indecent assault, statutory sexual assault, indecent exposure,

corruption of a minor, simple assault, unlawful restraint, attempted luring of

a child into a vehicle, indecent exposure, and open lewdness. Appellant was

assessed by the Sexual Offenders Assessment Board.          On July 29, 2010,

after a hearing, Appellant was adjudicated a sexually violent predator, and

he was sentenced to twenty-six to fifty-five years imprisonment. Appellant

filed a post-trial motion and a direct appeal upon its denial.

      On appeal, we affirmed. Commonwealth v. McDade, 32 A.3d 826

(Pa.Super.    2011)   (unpublished   memorandum).         We     concluded   that

Appellant’s nolo contendere plea was “knowingly, voluntarily and intelligently

entered[.]”   Id. (unpublished memorandum at 10).          We also ruled that

Appellant’s sentence was not illegal in that he had advance notice of

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applicable mandatory minimum sentences.         In addition, we decided that

there was sufficient evidence for the trial court’s finding that Appellant met

the criteria for classification as an SVP. Finally, we held that the sentence

was not infirm due to its consecutive nature.

      Appellant sought review with our Supreme Court, which denied that

request on April 24, 2012. Commonwealth v. McDade, 42 A.3d 292 (Pa.

2012).     On July 23, 2012, Appellant filed a timely PCRA petition claiming

that his nolo contendere plea was induced by ineffective assistance of

counsel.    This appeal followed denial of the petition without a hearing.

Appellant raises these issues:

           1. Did the PCRA Court err by denying the [PCRA] petition
           without a hearing?

                a. Did [Appellant’s]    underlying   claims   have
                arguable merit?

                b. Was the record sufficient to support the PCRA
                court’s conclusion that [Appellant] did not raise
                any issues of arguable merit?

Appellant’s brief at 7.

      Appellant first maintains that he suffers from an intellectual disability

that renders him functionally illiterate. He suggests that his plea was infirm

because plea counsel and the plea court failed to make “appropriate

accommodations for his disabilities.”    Appellant’s brief at 13.    Secondly,

Appellant asserts that plea counsel did not “properly investigate the case” by

obtaining a DNA expert who would have been able to explain the results and

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may have offered a defense at trial. Id. at 13, 17.1 Third, Appellant claims

that counsel was ineffective when he presented a psychological report during

the SVP proceedings that was damaging to him. Appellant’s final position is

that direct appeal counsel was ineffective for failing to challenge the validity

of his nolo contendere plea based upon his intellectual disabilities.

       Initially, we note that our standard of review “for an order denying

post-conviction relief is whether the record supports the PCRA court’s

determination and whether the PCRA court’s determination is free of legal

error.”   Commonwealth v. Perzel, 116 A.3d 670, 671 (Pa.Super. 2015)

(citation omitted). A nolo contendere plea is treated the same as a guilty

plea in terms of its effect upon a case.         Commonwealth v. Lippert, 85

A.3d 1095, 1100 n.3 (Pa.Super. 2014).            A PCRA petitioner cannot obtain

relief based upon an allegation of ineffectiveness unless he demonstrates

that “(1) the underlying legal issue has arguable merit; (2) counsel’s actions

lacked an objective reasonable basis; and (3) the petitioner was prejudiced

by counsel’s act or omission.”         Perzel, supra at 672.   This tripartite test

was derived by our Supreme Court in Commonwealth v. Pierce, 527 A.2d
____________________________________________


1
  Appellant also suggests that plea counsel failed to explain the applicable
mandatory minimum sentences. However, we determined, on direct appeal,
that the plea court, during it colloquy, adequately clarified any mandatory
minimum sentence implicated in this matter. Thus, any default by counsel
in this respect was cured by the plea court before Appellant’s plea was
accepted, and Appellant’s claimed ineffectiveness cannot form the basis for
withdrawal of the plea.



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973 (Pa. 1987), from the United States Supreme Court’s pronouncement in

Strickland v. Washington, 466 U.S. 668 (1984). See Perzel, supra.

Additionally, “Allegations of ineffectiveness in connection with the entry of a

guilty plea will serve as a basis for relief only if the ineffectiveness caused

appellant to enter an involuntary or unknowing plea.” Commonwealth v.

Fears, 86 A.3d 795, 806-07 (Pa. 2014) (citation omitted).

      Herein, Appellant maintains that he is intellectually disabled and

functionally illiterate and that counsel and the court did not make adequate

accommodations for that disability.     The transcript of his plea, however,

belies this position. Appellant represented to the plea court that his counsel

reviewed the contents of the written plea colloquy with him. Appellant also

said that he understood the questions in the written colloquy explained to

him by counsel and that the answers contained in the colloquy were his

answers.    N.T., 5/29/09, at 20-21.        The plea court then specifically

questioned Appellant as to whether Appellant wanted to ask the court any

questions or if there was anything about which he was unsure.        Appellant

responded, “No, I understand everything.” Id. at 22.

      The law “presumes that a defendant who enters a guilty plea was

aware of what he was doing.     He bears the burden of proving otherwise.”

Commonwealth v. Reid, 117 A.3d 777. 783 (Pa.Super. 2015) (citation

omitted).   Moreover, a defendant is “bound by his statements during the

colloquy,” and may not assert a ground for withdrawal if that position is

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contradicted by statements that the defendant made when he plead guilty.

Id.

       Herein, assuming, for the sake of argument, that Appellant could not

read, the record establishes the existence of adequate accommodations for

that problem.       Appellant told the court that he reviewed the written colloquy

with plea counsel and understood that document and that the answers

located therein were his answers. The oral colloquy was just that, oral, and

Appellant admitted to understanding those proceedings. Thus, the fact that

Appellant allegedly cannot read did not vitiate Appellant’s plea herein. His

answers in the plea proceeding were appropriate responses to the verbal

questions posed, and we hold him to the representations that he made to

the plea court.

       Appellant also asserts that plea counsel should have obtained a DNA

expert to explore possible defenses with him.            Appellant simply does not

adequately develop this position by delineating how any DNA results would

have aided in a defense. DNA evidence was implicated only in the rape and

sexual assault of the thirteen-year-old girl. That victim knew Appellant well

because he lived with one of her girlfriends.            Since Appellant does not

establish how he was prejudiced by counsel’s failure to hire a DNA expert,

this   claim   of    ineffectiveness   necessarily   fails.   Commonwealth      v.

McDermitt, 66 A.3d 810 (Pa.Super. 2013) (where defendant complained

about counsel’s failure to seek identity of a confidential informant without

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explaining how that identity would have aided in a defense, position was

rejected as undeveloped).

      Appellant’s third allegation, which is that counsel was ineffective for

disseminating a damaging psychological report during the SVP hearing, is

not cognizable herein. We held in Commonwealth v. Maskar, 34 A.3d 841

(Pa.Super. 2011) (en banc), that any challenge to the process by which a

defendant is classified as an SVP, including those related to ineffective

assistance of counsel, cannot be pursued under the PCRA.

      Appellant finally asserts entitlement to an evidentiary hearing on his

PCRA petition. A PCRA petitioner is not automatically entitled to a PCRA

hearing. Commonwealth v. Smith, 2015 WL 4931579 (Pa.Super. 2015).

A PCRA court can refuse to hold a hearing if “there is no genuine issue as to

any material fact and the petitioner is not entitled to post-conviction relief,

and no purpose would be served by any further proceedings.”         Id. at * 1

(citation omitted). Herein, Appellant failed to make out that there was any

genuine issue as to a material fact and to establish his entitlement to PCRA

relief. Hence, we will not disturb the PCRA court’s refusal to hold a hearing.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/9/2015




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