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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA


                       v.

KENNETH BERNARD SCHADE

                            Appellant                 No. 3679 EDA 2015


                  Appeal from the PCRA Order November 9, 2015
                 In the Court of Common Pleas of Monroe County
    Criminal Division at No(s): CP-45-CR-0000681-2014, CP-45-CR-0000917-
                                      2014


BEFORE: OTT, J., RANSOM, J., and STEVENS, P.J.E.*

MEMORANDUM BY RANSOM, J.:                        FILED NOVEMBER 03, 2016

        Kenneth Bernard Schade appeals from the order entered November 9,

2015, dismissing his petition for relief filed pursuant to the Post Conviction

Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.

        We adopt the following statement of facts from the PCRA court’s

opinion, which in turn is supported by the record. See PCRA Court Opinion

(PCO), 11/9/15, at 1-2.           On July 14, 2014, Appellant entered into a

negotiated guilty plea to one count of statutory sexual assault and two

counts of possessing child pornography.1 The underlying facts of Appellant’s

first case were that, between 1995 and 1997, he had sexual relations with


____________________________________________


1
    18 Pa.C.S. § 3122.1(a) and 18 Pa.C.S. § 6312(d), respectively.


*
    Former Justice specially assigned to the Superior Court.
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S. T., a person less than sixteen years of age. In the second case, Appellant

possessed 1,101 images of child pornography.

       In exchange for this plea, the Commonwealth agreed to nolle pros the

remaining charges on both dockets.                At docket number 681-2014, the

charges     of   Rape—Forcible       Compulsion,      Involuntary   Deviate   Sexual

Intercourse with Person Less than Sixteen Years of Age, Aggravated

Indecent Assault with Person Less than Sixteen Years of Age, and Corruption

of Minors were nolle prossed.2                 At docket number 917-2014, 1,099

additional counts of possessing child pornography were nolle prossed.

       On January 7, 2015, the court held a hearing pursuant to 42 Pa.C.S. §

9799.24(e) to determine if Appellant met the criteria to be classified as a

sexually violent predator (SVP) and immediately thereafter proceeded to

sentencing. The court found that Appellant was an SVP and sentenced him

to an aggregate of 54 to 120 months’ incarceration.3

       On April 29, 2015, Appellant pro se filed a petition for PCRA relief,

which the PCRA court dismissed as premature. On July 7, 2015, Appellant

timely filed a counseled petition seeking PCRA relief, claiming that prior

counsel unlawfully induced his guilty plea.           On September 14, 2015, the

PCRA court held an evidentiary hearing on the petition.
____________________________________________


2
   18 Pa.C.S. § 3121(a)(1), § 3123(a)(7), 3125(a)(8), and 6301(a),
respectively.
3
  Although Appellant filed a post-sentence motion to modify his sentence,
which the court denied on April 15, 2015, he did not file a direct appeal.



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      Plea counsel, Philip Lauer, testified that he extensively discussed the

plea agreement with Appellant and the reasons the agreement was beneficial

to him. See Notes of Testimony (N. T.), 9/14/15, at 5-26, 33, 40, 44-45.

Specifically, Mr. Lauer discussed the high volume of serious charges brought

against Appellant and the possibility of a lengthy consecutive sentence. Id.

at 31-32. Mr. Lauer knew Appellant was unhappy with the outcome of the

agreement and had discussed Appellant’s misgivings with him, but he

believed Appellant understood and accepted the reasoning and benefits

behind the plea agreement. Id. at 33, 44-45, 48. Mr. Lauer was aware of

Appellant’s physical maladies and Appellant’s proposed defenses. Id. at 26-

28.

      Appellant testified that he informed Mr. Lauer of proposed defenses to

the crimes of which he was accused.       See N. T., 9/14/15, at 54-56.   He

claimed he did not adequately read or review his guilty plea colloquy, and

Mr. Lauer demanded he sign it. Id. at 59-61. Appellant claimed he wrote

numerous letters to Mr. Lauer stating he did not wish to take a plea bargain

and “do perjury.” Id. at 64. Appellant claimed he could not hear any of the

questions posed by the court at the guilty plea colloquy. Id. at 65-66.

      On November 9, 2015, the PCRA court issued an order and

memorandum opinion dismissing Appellant’s petition.         Appellant timely

appealed and filed a court-ordered Pa.R.A.P. 1925(b) statement. The PCRA

court issued a 1925(a) statement incorporating its prior memorandum

opinion.

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       Before this Court, Appellant raises the following issue:

       Should the court permit the seventy-five year old defendant to
       withdraw the guilty plea where: defendant was overwhelmed by
       the destruction of a life’s work, was overwhelmed by his “outing”
       as a homosexual, was hearing impaired and in poor physical and
       emotional health due to his age, he steadfastly denied a crime
       had actually occurred because the sexual acts were consensual
       and initiated by the complainant, the pictures were protected by
       the first amendment, and defendant was essentially unaware
       that he could request to withdraw his plea before April 2015?

Appellant’s Brief at 4 (unnecessary capitalization omitted).4

       We review an order denying a petition under the PCRA to determine

whether the findings of the PCRA court are supported by the evidence of

record and free of legal error. Commonwealth v. Ragan, 923 A.2d 1169,

1170 (Pa. 2007). We afford the court’s findings deference unless there is no

support for them in the certified record.        Commonwealth v. Brown, 48

A.3d 1275, 1277 (Pa. Super. 2012) (citing Commonwealth v. Anderson,

995 A.2d 1184, 1189 (Pa. Super. 2010)).

       Although his statement of the question involved is unartfully phrased,

essentially Appellant raises a single issue: counsel was ineffective in advising
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4
  To the extent that Appellant attempts to raise other claims in relation to or
support of this issue, he does not return to them in the argument section of
his appellate brief; therefore, these claims are waived for lack of
development. See Commonwealth v. Buterbaugh, 91 A.3d 1247, 1262
(Pa. Super. 2014) (en banc) (failure to conform to the Rules of Appellate
Procedure results in waiver of the underlying issue); see also Pa.R.A.P.
2119(a), (b) (requiring a properly developed argument for each question
presented including a discussion of and citation to authorities in appellate
brief).



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him to accept a negotiated guilty plea.5 Appellant raises two arguments in

support of this issue: 1) that counsel unlawfully induced his guilty plea, and

2) that he suffered from a diminished mental capacity and could not

understand what was occurring during the proceedings.          Thus, Appellant

concludes that his plea was involuntary.

       We presume counsel is effective.          Commonwealth v. Washington,

927 A.2d 586, 594 (Pa. 2007). To overcome this presumption and establish

the ineffective assistance of counsel, a PCRA petitioner must prove, by a

preponderance of the evidence that: “(1) the underlying legal issue has

arguable merit; (2) counsel’s actions lacked an objective reasonable basis;

and (3) actual prejudice befell the petitioner from counsel’s act or omission.”

Commonwealth v. Johnson, 966 A.2d 523, 533 (Pa. 2009) (citations

omitted).    “A petitioner establishes prejudice when he demonstrates that

there is a reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different. Id. A claim

will be denied if the petitioner fails to meet any one of these requirements.

Commonwealth v. Springer, 961 A.2d 1262, 1267 (Pa. Super. 2008)


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5
  Appellant raised the same issue, challenging plea counsel’s advice, in his
counseled amended PCRA petition, argued it before the court at the
evidentiary hearing, his brief in support of his PCRA, and raised it again in
his 1925(b) statement. See Appellant’s amended PCRA petition at 4-5;
PCRA evidentiary hearing, 9/14/15 at 5-87; Appellant’s PCRA brief at 1-11;
Appellant’s 1925(b) statement, at 1.



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(citing Commonwealth v. Natividad, 938 A.2d 310, 322 (Pa. 2007));

Commonwealth v. Jones, 942 A.2d 903, 906 (Pa. Super. 2008).

      Where an appellant asserts that counsel unlawfully induced his guilty

plea that claim is cognizable under the PCRA’s ineffectiveness subsection.

See Commonwealth v. Lynch, 820 A.2d 728, 732 (Pa. Super. 2003); see

also 42 Pa.C.S. § 9543(a)(2)(ii).         We review allegations of counsel’s

ineffectiveness in connection with a guilty plea as follows:

      The standard for post-sentence withdrawal of guilty pleas
      dovetails with the arguable merit/prejudice requirements for
      relief based on a claim of ineffective assistance of counsel under
      which the defendant must show that counsel’s deficient
      stewardship resulted in a manifest injustice, for example, by
      facilitating entry of an unknowing, involuntary, or unintelligent
      plea. See, e.g., [Commonwealth v.] Allen, 558 Pa. [135,]
      144, 732 A.2d [582,] 587 [(1999)]).”                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.”…

      The standard is equivalent to the ‘manifest injustice’ standard
      applicable to all post-sentence motions to withdraw a guilty plea.

Commonwealth v. Morrison, 878 A.2d 102, 105 (Pa. Super. 2005) (some

citations omitted; brackets in original). Where a defendant enters a plea on

the advice of counsel, the voluntariness of the plea depends on whether the

advice was within the range of competence demanded of attorneys in

criminal cases. Commonwealth v. Timchak, 69 A.3d 765, 769 (Pa. Super.

2013).    In determining whether a plea was entered knowingly and

voluntarily,   this   Court   considers   the   totality   of   the   circumstances




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surrounding the plea.   Commonwealth v. Flanagan, 854 A.2d 489, 513

(Pa. 2004).

      Although Appellant alleges that ineffective assistance of counsel

induced him to plead guilty, the record belies that statement. Plea counsel

testified that he advised Appellant to plead based upon his sincere belief that

it would be more beneficial for Appellant, due to the reduction in the severity

and number of charges. See N. T., 9/14/15, at 31, 37-38, 40. Additionally,

plea counsel discussed with Appellant possible defenses and concluded that

the plea bargain was still to Appellant’s benefit. Id. at 19-20, 39-40. This

advice was within the range of competence demanded of an attorney in a

criminal case. See Timchak, 69 A.3d at 769; but see Commonwealth v.

Barndt, 74 A.3d 185, 201 (Pa. Super. 2013) (noting that counsel’s

inaccurate advice regarding collateral consequences of a guilty plea was not

within the range of competence for an attorney).

      The PCRA court found credible Mr. Lauer’s testimony that he had

discussed the guilty plea with Appellant and that, although Appellant was

unhappy with the idea of pleading guilty, understood that he would be in a

better legal position than he would be if he proceeded to trial on all charges

and faced significant sentences. PCO at 5-7. The PCRA court did not find

credible Appellant’s testimony that he did not intend to plead guilty or could

not hear the conversations, based upon multiple inconsistencies in his

testimony as well as his ability to engage in reasoned conversations with the


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court during the plea colloquy and PCRA evidentiary hearing. PCO at 6-7.

We may not disturb this credibility finding, as it is supported by the record.

See Johnson, 966 A.2d at 539 (noting that the credibility determinations of

the PCRA court are “provided great deference” if supported by the record).

Based on the above, Appellant is not entitled to relief.

      Appellant also attempts to argue that counsel should have recognized

Appellant’s diminished mental capacity. Thus, he avers his plea was

unknowing and involuntary.

      The “[t]est for determining a defendant’s mental competency to enter

a guilty plea is whether he had sufficient ability at the pertinent time to

consult with counsel with a reasonable degree of rational understanding, and

have . . . a rational, as well as a factual[,] understanding of the proceedings

against him.”   Commonwealth v. Long, 456 A.2d 641, 644 (Pa. Super.

1983). The PCRA court found that, based on Appellant’s testimony and the

evidence of the record, Appellant was able to participate in the plea colloquy

and consult with counsel with a reasonable degree of rational understanding

of the proceedings. We agree.

      The record reflects that Appellant participated in a guilty plea colloquy

and indicated that he understood the proceedings, was pleading guilty of his

own free will, had discussed the agreement and sentencing guidelines with

his attorney, and believed the plea to be in his best interest. PCO at 5; see

also N. T., 7/14/14, at 5-10, 16-17; see also Written Guilty Plea Colloquy,


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7/14/14, at 1-4.    Appellant indicated he was not suffering from a mental

health diagnosis or disability that would render him incapable of entering a

knowing and involuntary plea.       See N. T., 7/14/14, at 5-6.      Appellant

testified he was satisfied with the representation of counsel.      Id. at 10.

Further, Appellant asked and answered questions and actively participated in

the colloquy. Id. at 6, 8-9.

      Appellant accepted the factual basis of the plea and admitted to

committing statutory sexual assault and possessing child pornography. See

N. T., 7/14/15, at 6; see Written Guilty Plea Colloquy, 7/14/14, at 1-4. He

understood the rights he was foregoing with his plea, indicated he was

pleased with the representation of counsel, and stated that no one had

coerced him into pleading guilty. See Commonwealth v. Muhammad, 74

A.2d 378, 384 (Pa. Super. 2002) (stating that appellant cannot claim that he

involuntarily entered a guilty plea where he stated that no one threatened

him to plead guilty); see also Commonwealth v. Tareila, 895 A.2d 1266,

1267 (Pa. Super. 2006) (stating that “[t]he entry of a guilty plea constitutes

a waiver of all defects and defenses except lack of jurisdiction, invalidity of

the plea, and illegality of the sentence.”).

      Based upon our review of record and the totality of the circumstances,

we conclude that Appellant knowingly and voluntarily entered the guilty plea.

      The law does not require that Appellant be pleased with the results of

his decision to enter a guilty plea, only that the plea be knowingly,


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voluntarily, and intelligently made. See Brown, 48 A.3d at 1277. Based on

the above, we conclude that Mr. Lauer acted reasonably in advising

Appellant to accept the guilty plea and that Appellant knowingly, voluntarily,

and intelligently participated in the colloquy. Thus, no manifest injustice

occurred.   See Timchak, 69 A.3d at 769; see also Brown, 48 A.3d at

1277; see also Morrison, 878 A.2d at 105.

      Accordingly, we discern no error in the PCRA court’s decision to

dismiss Appellant’s petition following an evidentiary hearing.    Appellant’s

claim is without merit, and he is entitled to no relief.

      Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/3/2016




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