J-S82036-18

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,              :    IN THE SUPERIOR COURT OF
                                           :          PENNSYLVANIA
                  Appellee                 :
                                           :
                     v.                    :
                                           :
ROBERT ARENAS,                             :
                                           :
                  Appellant                :    No. 3924 EDA 2017

                Appeal from the PCRA Order November 3, 2017
             in the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0002104-2015

BEFORE:      LAZARUS, J., OLSON, J. and STRASSBURGER, J.*

MEMORANDUM BY STRASSBURGER, J.:           FILED MARCH 12, 2019

      Robert Arenas (Appellant) appeals from the order that dismissed his

petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.

§§ 9541-9546. Upon review, we affirm.

      On April 5, 2016, Appellant entered a negotiated plea, under which he

pleaded guilty to robbery, aggravated assault, conspiracy, and possession of

a firearm by a person prohibited, in exchange for an aggregate sentence of

7½ to 15 years’ incarceration plus credit for time served. No direct appeal

was filed.

             On January 23, 2017, Appellant timely filed a PCRA petition.

Counsel was appointed and filed an amended petition on May 9, 2017. On

September 29, 2017, the PCRA court issued a notice of its intent to dismiss

Appellant’s petition without a hearing pursuant to Pa.R.Crim.P. 907. Appellant



*Retired Senior Judge assigned to the Superior Court.
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did not file a response and on November 3, 2017, the PCRA court dismissed

Appellant’s petition. Appellant timely filed a notice of appeal.1 On appeal,

Appellant argues that he is entitled to relief based upon his claim that his

guilty plea resulted from plea counsel’s ineffective assistance.        Appellant’s

Brief at 8. The following legal principles apply to Appellant’s claim.

        Our standard of review of a PCRA court order granting or denying relief

under the PCRA requires us to determine whether the decision 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. Commonwealth v. Perez, 103 A.3d 344,

347 (Pa. Super. 2014) (internal citation and quotation marks omitted).

           It is well-established that counsel is presumed to have
           provided effective representation unless the PCRA petitioner
           pleads and proves all of the following: (1) the underlying
           legal claim is of arguable merit; (2) counsel’s action or
           inaction lacked any objectively reasonable basis designed to
           effectuate his client’s interest; and (3) prejudice, to the
           effect that there was a reasonable probability of a different
           outcome if not for counsel’s error.

        The PCRA court may deny an ineffectiveness claim if the
        petitioner’s evidence fails to meet a single one of these prongs.
        Moreover, a PCRA petitioner bears the burden of demonstrating
        counsel’s ineffectiveness.

Commonwealth v. Franklin, 990 A.2d 795, 797 (Pa. Super. 2010) (internal

citations omitted).

              Allegations of ineffectiveness in connection with the
              entry of a guilty plea will serve as a basis for relief

1
    Both Appellant and the PCRA court complied with Pa.R.A.P. 1925.


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            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.

Commonwealth v. Barndt, 74 A.3d 185, 192-93 (Pa. Super. 2013)

(citations and quotation marks omitted).

      In this case, in support of his sole claim on appeal, Appellant’s entire

argument is as follows:

      Here, [plea] counsel [was] faced with a client who was having
      mental health problems [and] failed to move the [trial court] for
      a continuance; failed to move the [trial court] to have [Appellant]
      examined that day; and failed to give otherwise proper advice to
      [Appellant] with regard to all of the consequences of his plea.
      [Appellant], not fully understanding the nature and consequences
      of the plea cannot be said to have offered the plea in a knowing,
      intelligent and voluntary fashion. Thus, [Appellant] should have
      been granted an evidentiary hearing; [Appellant] should have
      been granted the right to withdraw his guilty plea and go to trial.

Appellant’s Brief at 8.2 With the exception of case law, Appellant’s “argument”

is essentially bald assertions with no accompanying support or citations to the

record.



2
 In addition to the aforementioned claim, in his concise statement, Appellant
averred plea counsel was “ineffective when he failed and refused to file a
motion to withdraw [Appellant’s guilty] plea[.]”         Concise Statement,
12/26/2017, at 2 (unnecessary capitalization omitted). However, Appellant’s

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      It is Appellant’s obligation to sufficiently develop arguments in his
      brief by applying the relevant law to the facts of the case,
      persuade this Court that there were errors below, and convince us
      relief is due because of those errors. If an appellant does not do
      so, we may find the argument waived.

Commonwealth v. Gibbs, 981 A.2d 274, 284 (Pa. Super. 2009). Here, we

find that Appellant has failed to develop his issues “in any meaningful fashion

capable of review.”   Commonwealth v. Walter, 966 A.2d 560, 566 (Pa.

2009). Thus, Appellant’s claim is waived.

      Even if we were to reach the merits of Appellant’s claim, he would not

prevail on appeal.    Here, the PCRA court found Appellant, who bore the

responsibility of pleading and proving all three prongs of the test for

ineffectiveness, failed to meet his burden.

             [W]ith regard to Appellant’s contention that counsel knew
      or should have known that he was suffering from mental health
      issues and was under the effects of medication that rendered him
      incapable of entering a valid guilty plea, Appellant did not include
      any evidence in his various post-conviction filings to substantiate
      his claim such as medical records or evidence identifying and
      describing the nature of his mental health problems and the
      medication he was taking and how they impeded or impaired his
      ability to enter a knowing, intelligent, and voluntary guilty plea.
      This was fatal to his claim because, under the PCRA, a litigant has
      the burden of pleading grounds that support his or her allegations.
      See Commonwealth v. Williams, 782 A.2d 517, 526 (Pa. 2001)
      ("[T]he PCRA requires a petitioner to plead and prove his claim,
      and, therefore, the dismissal of claims is appropriate where the



argument omits any reference to this issue. Thus, Appellant has abandoned
this claim for purposes of appellate review.     See Commonwealth v.
Montalvo, 641 A.2d 1176, 1184 (Pa. Super. 1994) citing Commonwealth
v. Rodgers, 605 A.2d 1228, 1239 (Pa. Super. 1992) (“[W]e must deem an
issue abandoned where it has been identified on appeal but not properly
developed in the brief.”).

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     pleadings are insufficient to state a claim for post-conviction relief)
     (emphasis in original).

            In addition, th[e PCRA court] found the issue lacking in merit
     because Appellant averred during the guilty plea hearing that
     although he was taking medication for an unidentified mental
     health problem, the medication helped him sleep and did not
     affect his ability to understand what was then occurring.
     Therefore, even though Appellant allegedly was suffering from
     some unidentified mental health issue and may have been under
     the influence of medication at the time, he, by his responses
     during the guilty plea colloquy, manifested that he could enter a
     valid plea. Thus, because the record shows that Appellant entered
     his plea knowingly, intelligently, and voluntarily, th[e PCRA court]
     correctly determined that counsel was not ineffective for the
     reasons proffered by Appellant.

            The claim is also lacking in merit because to obtain relief on
     this claim, Appellant had to disavow what he averred to by signing
     the guilty plea colloquy form and his testimony before th[e trial
     court] whereby he indicated that he understood what he was
     doing and the ramifications of entering a guilty plea. The law is
     clear that

           The longstanding rule of Pennsylvania law is that a
           defendant may not challenge his guilty plea by
           asserting that he lied while under oath, even if he
           avers that counsel induced the lies. A person who
           elects to plead guilty is bound by the statements he
           makes in open court while under oath and he may not
           later assert grounds for withdrawing the plea which
           contradict the statements he made at his plea
           colloquy. A criminal defendant who elects to plead
           guilty has a duty to answer questions truthfully. We
           [cannot] permit a defendant to postpone the final
           disposition of his case by lying to the court and later
           alleging that his lies were induced by the prompting
           of counsel.

     Commonwealth v. Pollard, 832 A.2d 517, 524 (Pa. Super.
     2003).

     In order for Appellant to obtain relief he necessarily had to allege
     that he lied to the [trial court] under oath when he testified that

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      he understood what he was doing and the nature and
      circumstances of the proceedings. As the above [] indicate[s], the
      law does not permit it and, therefore, th[e PCRA court] properly
      concluded that Appellant was not entitled to relief on this claim.

PCRA Court Opinion, 3/13/2018, at 5-7 (some citations omitted).

      Our   review   of the   certified record confirms    the   PCRA court’s

determination. In this case, Appellant signed a lengthy written colloquy and

was subjected to a detailed oral colloquy, in which he stated under oath and

on the record that he, inter alia, understood the rights he was giving up by

pleading guilty, and that he had spoken to his attorneys, was satisfied with

their representation, and was not threatened or promised anything in

exchange for entering a plea. N.T., 4/5/2016, at 6-8. Of particular importance

in light of Appellant’s argument on appeal, during his oral colloquy, Appellant

made the trial court aware that he was currently taking medication for an

unspecified mental disorder, but stated unequivocally that the medicine,

prescribed to aid sleeping, did not hinder his ability to participate in the

proceedings.

      THE COURT: Have you ever been treated in the past or diagnosed
      with any kind of mental health issues that I should be aware of?

      [APPELLANT]: Currently I'm receiving medication for mental
      health.

      THE COURT: Do you know what the diagnosis is?

      [APPELLANT]: No.

      THE COURT: What kind of medication are you taking?

      [APPELLANT]: To sleep.

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      THE COURT: Help you sleep?

      [APPELLANT]: Uh-huh.

      THE COURT: Does it affect your ability to understand what it is
      you’re doing?

      [APPELLANT]: No.

Id. at 5-6.

      In light of the foregoing, Appellant cannot now claim that his mental

health issues or prescribed medication, which he acknowledged on the record

did not impede his ability to understand the proceedings, interfered with his

capability to enter a knowing and voluntary plea. See Commonwealth v.

Willis, 68 A.3d 997, 1009 (Pa. Super. 2013) (“While [Willis] admitted to the

trial court he was being treated for ‘sleeping disorders,’ and taking prescribed

medication, he specifically denied the medication affected his abilities or

judgment. [Willis] is bound by these statements, which he made in open court

while under oath, and he may not now assert[] grounds for withdrawing the

plea which contradict the statements.”). Lastly, as noted by the PCRA court,

Appellant failed to provide any documentation or evidence regarding the

nature of his mental illness and prescribed medication and how either

purportedly affected his abilities to enter cogently a plea. See id. (“Simply

put, the mere fact [Willis] was taking prescribed psychotropic medication at

the time of his plea does not, of itself, result in the conclusion he was unable

to enter a knowing, voluntary, and intelligent guilty plea.”).




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      For these reasons, Appellant has failed to convince this Court that the

PCRA court erred by dismissing his petition without a hearing.            See

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

no absolute right to an evidentiary hearing on a PCRA petition, and if the PCRA

court can determine from the record that no genuine issues of material fact

exist, then a hearing is not necessary.”).

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary


Date: 3/12/19




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