J-S84009-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT
                                                          OF
                                                     PENNSYLVANIA
                           Appellee

                      v.

MICHAEL PUGH,

                           Appellant                No. 760 EDA 2018


             Appeal from the PCRA Order Entered February 16, 2018
              In the Court of Common Pleas of Montgomery County
                            Criminal Division at No(s):
                            CP-46-CR-0000014-2015
                            CP-46-CR-0006243-2014
                            CP-46-CR-0006482-2014
                            CP-46-CR-0006887-2014
                            CP-46-CR-0006889-2014
                            CP-46-CR-0009421-2014

BEFORE: BENDER, P.J.E., OTT, J., and FORD ELLIOT, P.J.E.

MEMORANDUM BY BENDER, P.J.E.:                       FILED APRIL 04, 2019

     Appellant, Michael Pugh, appeals pro se from the post-conviction court’s

February 16, 2018 order denying his timely-filed petition under the Post

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

we affirm.

     The facts of Appellant’s underlying convictions are not pertinent to his

present appeal.     Additionally, while the PCRA court presented a lengthy

procedural history of Appellant’s case, see PCRA Court Opinion, 5/2/18, at 1-

4, we need only note the following matters, for purposes of addressing the

argument Appellant raises herein. On March 16, 2016, Appellant pled guilty
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in several different cases to five counts of access device fraud and one count

of possession of heroin. He received an aggregate sentence of 3 to 6 years’

incarceration, followed by 4 years’ probation.

       Appellant did not file a direct appeal. Instead, he filed a timely, pro se

PCRA petition in which he alleged, inter alia, that his plea counsel had acted

ineffectively by not accurately advising him about the sentence he would

receive, and that he was not given proper credit for time-served. The PCRA

court appointed counsel, and subsequently directed counsel to provide the

court with certain documents that were pertinent to resolving Appellant’s

time-credit issue. When that attorney failed to respond to the court’s order,

the court appointed new counsel for Appellant, Bonnie-Ann Brill Keagy, Esq.

Attorney Keagy ultimately filed a petition to withdraw and ‘no-merit’ letter in

accordance with Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and

Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).

       Meanwhile, Appellant filed with the court a pro se document entitled,

“Motion to Amend PCRA - Mental Health.” Therein, he claimed that his plea

counsel was ineffective for not advising him to plead guilty but mentally ill

under 18 Pa.C.S. § 314.1           On December 19, 2017, the court issued a

Pa.R.Crim.P. 907 notice of its intent to dismiss Appellant’s petition, and



____________________________________________


1We point out that Attorney Keagy addressed this claim and concluded it was
meritless in her Turner/Finley letter.



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contemporaneously granted Attorney Keagy’s petition to withdraw.2 Then, on

February 16, 2018, the court issued a “Final Order of Dismissal of PCRA

Petition.”

       Appellant filed a timely, pro se notice of appeal.3      He also filed a

Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal,

although not being ordered to do so by the PCRA court. On May 5, 2018, the

court issued a Rule 1925(a) opinion. Herein, Appellant states three issues in

his “Statement of the Questions Presented” section of his brief, yet only

identifies and discusses the following single issue in his “Argument” section:
       The PCRA court erred in denying pro se [Appellant’s] … motion for
       a[n] evidentiary hearing, and also [for] not finding trial counsel
       was ineffective for not advising [Appellant] to plead guilty but
       mental[ly] ill under [18 Pa.C.S. §] 314(b), and for failing to put
       the doctor on the witness[] stand to testif[y] to her reports and
       finding[s] dealing with [Appellant’s] mental ill[ness] and history
       that she prepare[d] for the hearing.

Appellant’s Brief at 5.



____________________________________________


2The court states that Appellant filed a pro se response to the Rule 907 notice,
but the docket contains no entry for that filing, and it is not contained in the
certified record.

3  We note that Appellant filed a single notice of appeal from the court’s order,
which resolved issues pertaining to multiple cases. In Commonwealth v.
Walker, 185 A.3d 969 (Pa. 2018), our Supreme Court held that “in future
cases [Pa.R.A.P.] 341(a) will, in accordance with its Official Note, require that
when a single order resolves issues arising on more than one docket, separate
notice of appeal must be filed. The failure to do so will result in quashal of
the appeal.” Id. at 977 (footnote omitted; emphasis added). Walker was
filed on June 1, 2018, after Appellant filed had his pro se notice of appeal.
Therefore, Walker does not require us to quash.

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      We begin by recognizing that, “[t]his Court’s standard of review from

the grant or denial of post-conviction relief is limited to examining whether

the lower court’s determination is supported by the evidence of record and

whether it is free of legal error.” Commonwealth v. Morales, 701 A.2d 516,

520 (Pa. 1997) (citing Commonwealth v. Travaglia, 661 A.2d 352, 356 n.4

(Pa. 1995)). Additionally,

      [t]he legal standard applicable to ineffective assistance of counsel
      claims is well settled[:]

         To prevail on a claim that counsel was constitutionally
         ineffective, the appellant must overcome the presumption
         of competence by showing 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 effectuate his interests; and, (3) but for
         counsel’s ineffectiveness, there is a reasonable probability
         that the outcome of the challenged proceeding would have
         been different. A failure to satisfy any prong of the test for
         ineffectiveness will require rejection of the claim.

                                      ***
      Claims of ineffectiveness of counsel that are raised in the context
      of a guilty plea may provide a basis for relief only if counsel’s
      ineffectiveness caused an involuntary or unknowing plea. This is
      similar to the “manifest injustice” standard applicable to all post-
      sentence attempts to withdraw a guilty plea.

Commonwealth v. Watson, 835 A.2d 786, 795–96 (Pa. Super. 2003)

(internal citations and some quotation marks omitted).

      In this case, Appellant contends that the PCRA court erred by denying

his claim that his plea counsel was ineffective for failing to advise Appellant to

plead guilty but mentally ill under 18 Pa.C.S. § 314. That statute reads:
      § 314. Guilty but mentally ill


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        (a) General rule.—A person who timely offers a defense of
        insanity in accordance with the Rules of Criminal Procedure
        may be found “guilty but mentally ill” at trial if the trier of
        facts finds, beyond a reasonable doubt, that the person is
        guilty of an offense, was mentally ill at the time of the
        commission of the offense and was not legally insane at the
        time of the commission of the offense.

        (b) Plea of guilty but mentally ill.—A person who waives
        his right to trial may plead guilty but mentally ill. No plea of
        guilty but mentally ill may be accepted by the trial judge
        until he has examined all reports prepared pursuant to the
        Rules of Criminal Procedure, has held a hearing on the sole
        issue of the defendant’s mental illness at which either party
        may present evidence and is satisfied that the defendant
        was mentally ill at the time of the offense to which the plea
        is entered. If the trial judge refuses to accept a plea of guilty
        but mentally ill, the defendant shall be permitted to
        withdraw his plea. A defendant whose plea is not accepted
        by the court shall be entitled to a jury trial, except that if a
        defendant subsequently waives his right to a jury trial, the
        judge who presided at the hearing on mental illness shall
        not preside at the trial.

        (c) Definitions.—For the purposes of this section and 42
        Pa.C.S. § 9727 (relating to disposition of persons found
        guilty but mentally ill):

             (1) “Mentally ill.” One who as a result of mental
             disease or defect, lacks substantial capacity either to
             appreciate the wrongfulness of his conduct or to
             conform his conduct to the requirements of the law.

             (2) “Legal insanity.” At the time of the commission of
             the act, the defendant 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 he did know it, that he did not know he was doing
             what was wrong.

18 Pa.C.S. § 314.

     Here, in rejecting Appellant’s ineffectiveness claim, the PCRA court

explained:


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           [Appellant] claims in his remaining issues that his [plea]
      counsel was ineffective for failing to advise him to plead guilty but
      mentally ill.

            [Appellant] cites to Commonwealth v. Andrews, 158
      A.3d 1260 (Pa. Super. 2017). In Andrews, the Superior Court
      held that the PCRA court erred in dismissing the PCRA petition on
      the basis that the petitioner was required to assert an insanity
      defense if he wished to enter a plea of guilty but mentally ill. See
      18 Pa.C.S.[] § 314.

             We do not believe that Andrews is on point with the instant
      files. [Appellant] has not alleged that he was legally insane at the
      time these crimes were committed. [Appellant] has failed to
      explain how the disposition of these cases would have differed had
      [Appellant] entered a plea of guilty but mentally ill rather than the
      general guilty pleas that he entered.

Final Order of Dismissal of PCRA Petition, 2/16/18, at 1-2.

      Appellant contends that the PCRA court misconstrued Andrews.

According to Appellant, the Andrews panel held “that a defendant need not

assert an insanity defense before entering a plea of guilty but mentally ill.”

Appellant’s Brief at 8 (emphasis added). Appellant’s reading of Andrews is

correct.   There, Andrews had filed a PCRA petition asserting that his trial

counsel was ineffective for not advising him to plead guilty but mentally ill

under 18 Pa.C.S. § 314(b).      Andrews, 158 A.3d at 1264.          Rather than

entering such a plea, Andrews had instead proceeded to trial. In regard to

prejudice, Andrews “contended that had he entered a plea of guilty but

mentally ill (rather than unsuccessfully pleading not guilty and going to trial

on a diminished capacity defense), he would have been entitled to psychiatric

treatment while serving his life sentence after conviction.” Id. at 1262.




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      The PCRA court denied Andrews’ petition without a hearing, reasoning

that Andrews “was not entitled to plead guilty but mentally ill because he did

not present an insanity defense at trial.” Id. at 1263. On appeal, we rejected

the court’s conclusion, clarifying that,
      Section 314(b) does not condition the ability to plead guilty but
      mentally ill on the assertion of an insanity defense. Indeed, any
      such condition would make no sense. An insanity defense
      requires a plea of not guilty. Here, [Andrews] argues that he
      should have been advised to plead guilty but mentally ill. “A plea
      of guilty constitutes a waiver of all non[-]jurisdictional defects and
      defenses” and “waives the right to challenge anything but the
      legality of [the] sentence and the validity of [the] plea.”
      Commonwealth v. Jones, 593 Pa. 295, 929 A.2d 205, 212
      (2007) (citation omitted). Thus, if a defendant pleads guilty but
      mentally ill and the court accepts that plea, the defendant waives
      the defense of insanity. There thus would be no reason for a
      defendant to invoke the defense of insanity before entering a plea
      of guilty but mentally ill.

Id. at 1265 (emphasis in original). Consequently, the Andrews panel

concluded that “the PCRA court erred by dismissing [Andrews’] claim on the

ground that he did not assert such a defense.” Id.

      In the case sub judice, the PCRA court explicitly denied Appellant’s

ineffectiveness claim on the basis that he did “not allege[] that he was legally

insane at the time these crimes were committed.” Final Order of Dismissal

of PCRA Petition at 2 (emphasis added). However, as Andrews makes clear,

section 314(b) does not require the defendant to assert a legal-insanity

defense before pleading guilty but mentally ill. Accordingly, in this respect,

the PCRA court erred.




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       However, the PCRA court also denied Appellant’s petition because

Appellant had not demonstrated that he was prejudiced by entering a guilty

plea, rather than a plea of guilty but mentally ill. After closely examining the

record in this case, we are constrained to agree. In Appellant’s pro se “Motion

to Amend PCRA - Mental Health,” in which he asserted this ineffectiveness

claim,4 Appellant did not contend, as did the petitioner in Andrews, that he

was denied the psychiatric treatment to which a plea of guilty but mentally ill

would have entitled him. Indeed, Appellant actually stressed that he is getting

treatment in prison, declaring that he “is at a mental health prison were [sic]

he has been for the last few years. He is placed on a mental health block, and

is taking medication where he is placed as a D-Code inmate.”           Motion to

Amend PCRA - Mental Health, 11/21/17, at 2 (unnumbered).

       Additionally, in Appellant’s brief to this Court, he again fails to present

any claim that he was prejudiced because he is being denied treatment that

he would have received had he entered a plea under section 314(b). Rather,

Appellant argues that, had he pled guilty but mentally ill, he would have “been

treat[e]d differently under the color of law[,] … put in a mental hospital for

treatment[,] … [o]r given probation or trea[t]ment” rather than a sentence of

incarceration. Appellant’s Brief at 9.
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4We acknowledge that Appellant was represented at the time he filed this pro
se motion, thereby implicating hybrid-representation concerns.           See
Commonwealth v. Ellis, 626 A.2d 1137, 1139 (Pa. 1993) (“[T]here is no
constitutional right to hybrid representation either at trial or on appeal.”).
However, the court seemingly accepted it as an amendment to Appellant’s
petition, and we will not disturb that decision on appeal.

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     Appellant’s arguments are unconvincing.         Relying on Pennsylvania

Supreme Court cases, the Commonwealth Court has explained:

            The “guilt” of “guilty but mentally ill” is the same as that of
     a traditional guilty verdict or plea. The guilty but mentally ill
     statute has “no impact on the adjudicative process” or the burdens
     of proof placed upon the parties. [Commonwealth v.] Sohmer,
     … 546 A.2d [601,] 607 [(Pa. 1988)]. Further, a guilty but mentally
     ill determination does not negate the criminal intent of the
     defendant, and instead “expressly recognizes that all elements of
     the crime have been met.” Commonwealth v. Santiago, … 855
     A.2d 682, 701 ([Pa.] 2004); Sohmer, … 546 A.2d at 606.

           Nor is the duration of the sentence affected by a
     determination of guilty but mentally ill: a guilty but mentally ill
     defendant “may have any sentence imposed on him which may
     lawfully be imposed on any defendant convicted of the same
     offense,” 42 Pa.C.S. § 9727(a), and is entitled to no reduction in
     the term as a result of the finding of mental illness. Santiago, …
     855 A.2d at 701. Likewise, a defendant found guilty but mentally
     ill  cannot      evade    a    mandatory     minimum     sentence.
     Commonwealth v. Larkin, … 542 A.2d 1324, 1328 ([Pa.] 1988).
     The only distinction between guilty but mentally ill and guilty at
     sentencing is that the judge is required to “hear testimony and
     make a finding on the issue of whether the defendant at the time
     of sentencing is severely mentally disabled and in need of
     treatment.” 42 Pa.C.S. § 9727(a). Mental health treatment is
     then provided in accordance with available resources. 42 Pa.C.S.
     § 9727(b).      Prerelease, parole and probation for guilty but
     mentally ill offenders are also administered in accordance with the
     laws and regulations applicable to other offenders, except mental
     health treatment may be required as a condition of an offender’s
     change of status. 42 Pa.C.S. § 9727(d)-(f).

Miskovitch v. Pennsylvania Bd. of Prob. & Parole, 77 A.3d 66, 71–72 (Pa.

Cmwlth. 2013).

     In light of the record before us and law we have discussed supra, we

discern no error in the PCRA court’s conclusion that Appellant failed to

demonstrate that he was prejudiced by pleading guilty, rather than guilty but


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mentally ill.   Accordingly, on that basis, we affirm the PCRA court’s order

denying his petition.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/4/19




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