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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                          Appellee

                     v.

GEORGE NICOLL LUNDSKOW,

                          Appellant                  No. 883 MDA 2015


                  Appeal from the PCRA Order May 11, 2015
              In the Court of Common Pleas of Dauphin County
             Criminal Division at No(s): CP-22-CR-0001880-2013


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

MEMORANDUM BY BOWES, J.:                        FILED DECEMBER 08, 2015

       George Nicoll Lundskow appeals from the order entered May 11, 2015,

denying his first counseled PCRA petition. We affirm.

       Appellant entered a negotiated guilty plea to the charges of unlawful

contact with a minor, criminal use of a communication facility, and

solicitation to commit involuntary deviate sexual intercourse (“IDSI”). The

charges stemmed from Appellant soliciting an undercover agent of the

Pennsylvania Office of Attorney General, posing as a fourteen-year-old girl,

for oral sex. Appellant also used a web camera on his computer to send an

image of his genitalia to the person whom he believed was the minor child.

At the time of the criminal conduct, Appellant lived in Maryland and did not

leave that state. The court sentenced Appellant on December 3, 2013, to an


*
    Retired Senior Judge assigned to the Superior Court.
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aggregate sentence of three and one-half to seven years incarceration to be

followed by five years of probation. Appellant did not file a direct appeal;

however, on November 21, 2014, Appellant filed a timely pro se PCRA

petition. The court appointed PCRA counsel, who filed an amended petition

asserting that plea counsel was ineffective and caused him to enter a plea

when he was actually innocent and that the entry of his plea was unknowing.

The PCRA court initially filed a notice of dismissal and opinion in support

thereof on February 19, 2015.      However, after Appellant filed a brief in

support of his claims, the court elected to conduct an evidentiary hearing.

That hearing occurred on April 22, 2015.

      At the evidentiary hearing, plea counsel testified that he explained the

legal concept of intent, though not the specific criminal definition of the

term, and provided Appellant with the standard jury instruction for

solicitation. Plea counsel maintained that he informed Appellant that if he

chose to proceed to trial, counsel’s primary argument would be that

Appellant lacked intent.

      In addition, plea counsel stated that while he did not use the legal

term “renunciation” to explain it as a possible defense, he did inform

Appellant that the jury would be instructed to consider whether or not

Appellant intended to follow through with his discussions of having a minor

perform oral sex on him. Plea counsel set forth that he felt like he covered

the concept of renunciation in his discussions with Appellant and explained

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that he advised Appellant of the elements of the crimes charged, the

potential range of sentences that could be imposed, and the fact that a

sentencing court may impose sentences consecutively or concurrently.

      Following the conclusion of the hearing, the PCRA court denied

Appellant’s petition on May 11, 2015. This timely appeal ensued. The PCRA

court directed Appellant to file and serve a Pa.R.A.P. 1925(b) concise

statement of errors complained of on appeal. Appellant complied, and the

PCRA court authored its opinion. The matter is now ready for this Court’s

consideration. Appellant presents three issues for our review.

      1. Whether the guilty plea of the Defendant was unlawfully
         induced when plea counsel, Brian Platt, Esq., failed to explain
         the elements of solicitation to commit involuntary deviate
         sexual intercourse.

      2. Whether the guilty plea of the Defendant was unlawfully
         induced when plea counsel, Brian Platt, Esq. failed to explain
         the availability of potential defenses, specifically the defense
         of renunciation.

      3. Whether the guilty plea of the Defendant was unlawfully
         induced when plea counsel, Brian Platt, Esq., failed to
         understand and explain to the Defendant whether there was a
         factual basis to the plea.

Appellant’s brief at 4.

      In reviewing a PCRA appeal, we consider the record “in the light most

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

Henkel, 90 A.3d 16, 20 (Pa.Super. 2014) (en banc).         In performing this

review, we consider the evidence of record and the factual findings of the



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PCRA court. Id. We afford “great deference to the factual findings of the

PCRA court and will not disturb those findings unless they have no support in

the record.”   Id.   Accordingly, so long as a PCRA court’s ruling is free of

legal error and is supported by record evidence, we will not disturb its

decision. Id. Where the issue presents a question of law, “our standard of

review is de novo and our scope of review is plenary.” Id.

      Each of Appellant’s positions relate to the effectiveness of plea

counsel. “To plead and prove ineffective assistance of counsel a petitioner

must establish: (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.” Commonwealth v.

Stewart, 84 A.3d 701, 706 (Pa.Super. 2013) (en banc). The failure to meet

any of these aspects of the ineffectiveness test results in the claim failing.

Id.

      A claim has arguable merit where the factual predicate is accurate and

“could establish cause for relief.”   Id.   at 707.   A determination as to

whether the facts asserted present a claim of arguable merit is a legal one.

Id.   In considering whether counsel acted reasonably, we do not use a

hindsight analysis; rather, an attorney’s decision is considered reasonable if

it effectuated his client’s interests. Id. Only where “no competent counsel

would have chosen that action or inaction, or, the alternative, not chosen,

offered a significantly greater potential chance of success[,]” will counsel’s

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strategy be considered unreasonable. Id. Finally, actual prejudice exists if

“there is a reasonable probability that, but for counsel's errors, the result of

the proceeding would have been different.” Id. It is presumed that counsel

renders effective representation.

      Appellant’s initial claim is that plea counsel failed to provide adequate

information to Appellant to ensure that his plea was knowingly, voluntarily,

and intelligently entered. He asserts that counsel did not adequately explain

the intent element of solicitation. In addition, he posits that, assuming plea

counsel provided him with the jury instruction for solicitation, counsel still

was not effective.   Appellant alleges that the standard jury instruction for

solicitation, standing alone, does not adequately define the intent element of

the crime. He maintains that the words he used in the internet chat room

were “nothing more than cyber fantasy.” Appellant’s brief at 15.

      The Commonwealth counters that Appellant’s written guilty plea

colloquy, which he completed with the assistance of plea counsel, refutes his

claim that he entered an involuntary plea.     It highlights that the colloquy

was consistent with Pa.R.Crim.P. 590, which delineates the inquiries a court

must inquire into in deciding whether to accept a guilty plea.              The

Commonwealth adds that the PCRA court credited plea counsel’s testimony

that he explained the elements of solicitation to Appellant and reviewed with

him in laymen’s terms the concept of intent. It continues that plea counsel

provided Appellant with the pertinent jury instruction for solicitation and that

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Appellant understood what the Commonwealth would have to prove. In this

latter respect, the Commonwealth notes that Appellant was a newspaper

editor with a college degree and that the PCRA court did not credit

Appellant’s self-serving testimony that he did not grasp the legal concept of

intent.   Moreover, Appellant admitted sending the chat messages that

resulted in his plea and that the messages “established Lundskow intended

to engage in sex acts with someone he believed was a 14-year old girl.”

Commonwealth’s brief at 18.

      Where a petitioner alleges that guilty plea counsel was ineffective, he

must demonstrate that absent counsel’s incorrect advice or failure to advise,

there is a reasonable probability he would have not have pled guilty and

would have proceeded to trial, Commonwealth v. Barndt, 74 A.3d 185

(Pa.Super. 2013), or, not relevant here, accepted a plea offer. In examining

whether such prejudice exists in the context of a guilty plea, we look to

whether the plea is knowing, intelligent, and voluntary. Commonwealth v.

Anderson,     995   A.2d   1184,   1192 (Pa.Super.   2010)   (“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. Bedell, 954 A.2d

1209, 1212 (Pa.Super. 2008). In determining whether a plea was knowing,

intelligent, and voluntary, we consider the totality of the circumstances.

Commonwealth v. Allen, 732 A.2d 582, 587 (Pa. 1999); id. at 589.

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Hence, we consider any written and oral plea colloquies. See Bedell, supra

at 1212-1213.     A court or attorney, during a plea colloquy, generally

inquires into the following areas:

      1) Does the defendant understand the nature of the charges to
      which he or she is pleading guilty or nolo contendere?

      2) Is there a factual basis for the plea?

      3) Does the defendant understand that he or she has the right to
      a trial by jury?

      4) Does the defendant understand that he or she is presumed
      innocent until found guilty?

      5) Is the defendant aware of the permissible ranges of sentences
      and/or fines for the offenses charged?

      6) Is the defendant aware that the judge is not bound by the
      terms of any plea agreement tendered unless the judge accepts
      such agreement?

Id. at 1212; Pa.R.Crim.P. 590.

      A defendant is bound by statements he makes under oath and

ordinarily cannot challenge his plea by claiming that he lied under oath.

Commonwealth v. Pollard, 832 A.2d 517 (Pa.Super. 2003).            Here, the

guilty plea colloquy establishes that Appellant was properly informed of the

requisite information.   Further, the PCRA court credited PCRA counsel’s

testimony that he advised Appellant regarding the intent element of

solicitation and provided Appellant with the applicable jury instruction for

that crime. Although Appellant contends that counsel’s advice was deficient

because he did not use the legal terms “conscious object” in defining intent,


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an attorney may adequately convey the applicable elements of a crime using

non-legal terminology. Appellant is entitled to no relief.

       Appellant’s second claim is that counsel was ineffective in neglecting to

explain the defense of renunciation. The legislature defines the defense of

renunciation for purposes of solicitation as follows, “It is a defense that the

actor, after soliciting another person to commit a crime, persuaded him not

to do so or otherwise prevented the commission of the crime, under

circumstances manifesting a complete and voluntary renunciation of his

criminal intent.” 18 Pa.C.S. § 902(b).1          Appellant argues that because he

never left Maryland or arranged to meet with the person he believed was a

fourteen-year-old female, he otherwise prevented the IDSI from occurring.

In further support, he relies on Commonwealth v. Prince, 719 A.3d 1086

(Pa.Super. 1998).

       In Prince, a jury found the defendant guilty of sexual assault and

unlawful restraint after he forced his former wife to have sexual intercourse

with him.    Fearing the defendant because he was intoxicated and became

violent under such circumstances, and also not wanting to contract a

venereal disease, the victim acquiesced to Prince having intercourse with her
____________________________________________


1
   We acknowledge that the definition of renunciation is tautological as it
includes the term itself in its own definition. Black’s Law Dictionary defines
the term, relevant to criminal law, as “[c]omplete and voluntary
abandonment of criminal purpose—sometimes coupled with an attempt to
thwart the activity’s success—before a crime is committed.”



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after she retrieved a condom.      During direct appeal, Prince alleged that

counsel was ineffective in failing to request a jury instruction relative to

consent.   Since the case pre-dated Commonwealth v. Grant, 813 A.2d

726 (Pa. 2002), the panel addressed the claim.       It, however, did not find

actual prejudice but remanded for an evidentiary hearing. In doing so, the

Prince majority asserted that lack of consent was an element of the crime

because the Commonwealth had to prove an absence of consent beyond a

reasonable doubt. Appellant argues that a lack of renunciation is an element

of solicitation and that plea counsel’s failure to explain that concept resulted

in a failure to discuss each element of the crime charged.

      Affirmative defenses, such as renunciation, while needing to be proved

beyond a reasonable doubt under Pennsylvania law, are only triggered if the

defendant brings forward some evidence of the defense.               See e.g.

Commonwealth v. Mouzon, 53 A.3d 738, 740 (Pa. 2012) (discussing self-

defense and stating, “Although the defendant has no burden to prove self-

defense, . . . . before the defense is properly in issue, ‘there must be some

evidence, from whatever source, to justify such a finding.’ Once the question

is properly raised, ‘the burden is upon the Commonwealth to prove beyond a

reasonable doubt that the defendant was not acting in self-defense.’”).

Since Appellant was entering a guilty plea, renunciation would only be a

factor if there was evidence that he did renounce his intent to have a person

he believed to be a fourteen-year-old girl perform oral sex.       Contrary to

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Appellant’s claim, failure to leave the state of Maryland alone does not

constitute abandonment of an intent to commit IDSI.         Rather, it simply

means he had not taken a substantial step toward completing the crime.

Furthermore, plea counsel also submitted that he did not see any evidence

that Appellant actually renounced his intent to commit IDSI. In this respect,

after a time lapse between conversations, Appellant would renew asking

about sexual activity with the person whom he believed to be a fourteen-

year-old girl.   Since we find that Appellant’s mere failure to make travel

arrangements does not constitute a renunciation where he continually

sought oral sex in his communications, plea counsel cannot be ineffective.

      In his final claim, Appellant avers that plea counsel unlawfully induced

his plea by neglecting to explain the factual basis for his plea.   Appellant

alleges that the facts in this matter are insufficient as a matter of law to

constitute solicitation to commit IDSI. He points to three cases where this

Court found sufficient evidence to support findings of guilt relative to

solicitation to commit IDSI and the defendants therein traveled to meet the

person they believed was a minor: Commonwealth v. Bohonyi, 900 A.2d

877 (Pa.Super. 2005); Commonwealth v. Jacob, 867 A.2d 614 (Pa.Super.

2005); and Commonwealth v. John, 854 A.2d 591 (Pa.Super. 2004).

      In Bohonyi, a twenty-year-old college student engaged in online

communications with an individual he believed was a thirteen-year-old girl

who used the online moniker of Stacie13.         He, however, was actually

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communicating with an undercover police officer.              Bohonyi repeatedly

inquired whether Stacie13 would be willing to engage in oral and vaginal sex

with him.    In addition, Bohonyi informed the person he believed to be

thirteen years of age that he had previously had oral and vaginal intercourse

with girls between thirteen and fifteen.

      The Bohonyi Court reasoned, “the record amply supports the jury's

verdict that Appellant encouraged and/or requested Stacie13 to engage in

the criminal act of involuntary deviate sexual intercourse.” Id. at 882. It

continued that, “[t]aken in their entirety, [Bohonyi’s] communications with

Stacie13 could reasonably have been found by the jury to have constituted

encouragement to commit IDSI.” Id. The Bohonyi panel then added, “the

evidence supports the finding that the encouragement to commit IDSI

involved Appellant's meeting Stacie13 on a specific date and at a specific

time, i.e., on August 12, 2002, at 2:00 p.m., in the parking lot of a

designated convenience store in Media, Pennsylvania.” Id. It is in this last

sentence that Appellant takes refuge.          In his view, this final factor is

necessary to show solicitation to commit IDSI. However, a reading of the

previous portions of the Bohonyi decision makes clear that the court

determined    that   sufficient   evidence   existed   even   absent   the   travel

arrangements.    Accordingly, the Bohonyi case decision does not support

Appellant’s position.




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     Similarly, Jacob does not support Appellant’s contention that the facts

admitted to did not rise to solicitation to commit IDSI. There, the defendant

was charged with attempt to commit IDSI, which requires a substantial step

towards commission of the crime. In Jacob, an undercover detective poses

as a twelve-year-old girl, using the screen name Caitybear90.     Jacob first

asked if Caitybear90 would like to cuddle and kiss, and followed up in

another conversation by inquiring if her breasts were developed.    He then

told her that he could teach her to have sex, including how to perform oral

sex on a male, and described cunnilingus, stating he could teach that to her

as well. Thereafter, in a cell phone conversation with the person whom he

believed was Caitybear90, Jacob arranged to meet and asked if he could

teach her how to perform oral sex on a man when they met. When Jacob

arrived at the meeting place, he was arrested. This Court held that these

facts demonstrated an attempt to commit IDSI, relying in part on the fact

that the defendant had driven to meet with a person he thought was a

twelve-year-old female.

     Since Jacob involved a separate crime, the fact that Appellant did not

leave Maryland to meet the individual he believed was an underage girl is of

no moment in analyzing the facts for purposes of solicitation.     Jacob is

simply unhelpful to Appellant. Concomitantly, this Court’s decision in John,

supra, offers no support for his position. In John, the defendant, while in

Delaware and Maryland engaged in online communications with a person he

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believed to be a thirteen-year-old Pennsylvania girl. That individual was in

actuality an agent employed by the Pennsylvania Office of Attorney General

working with the Delaware County, Pennsylvania, District Attorney’s Office.

John emailed the person he thought was an underage female indicating that

he wanted to have oral and vaginal sex. He sent pornographic images and

prodded her to masturbate before they met.     John then arranged to meet

and traveled to Media, Pennsylvania where he asked an undercover agent

posing as the girl if she was the person he was meeting.      After the two

began to walk to his vehicle, police arrested him.     The Commonwealth

charged him with, among other criminal counts, solicitation to commit IDSI.

     After examining the jurisdictional issue regarding John’s emails being

sent from outside of Pennsylvania and determining that John could be

prosecuted within Pennsylvania, the John Court determined that his

behavior demonstrated that he was a public danger and was not entitled to

discharge under 18 Pa.C.S. § 905(b). In doing so, the John panel recited

the facts of the case, including that he had traveled to meet the person he

believed was an underage girl.    John does not stand for or hold that a

person must travel to meet the individual he engages in illicit online

communications to establish solicitation.     Solicitation to commit IDSI

requires a person, “with the intent of promoting or facilitating its

commission” to either command, encourage or request another person to




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engage in specific conduct “which crime or which would establish his

complicity in its commission or attempted commission.” 18 Pa.C.S. § 902.

       The facts of this matter show that Appellant encouraged and requested

a person he believed to be a fourteen-year-old girl to have oral sex.        His

intent to facilitate that crime could be inferred from his repeated messages.

The facts admitted by Appellant support a plea to solicitation to commit

IDSI.2   Hence, counsel cannot be ineffective for instructing Appellant that

the facts as alleged met the crime to which Appellant pled guilty.

       Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/8/2015




____________________________________________


2
 We note that Appellant has failed to ensure that his guilty plea transcript is
part of the certified record. Hence, his issue fails for this additional reason.



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