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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.                             :
                                               :
                                               :
    ALBERT GINGERICH                           :
                                               :
                       Appellant               :   No. 879 WDA 2017

                   Appeal from the PCRA Order June 1, 2017
               In the Court of Common Pleas of Crawford County
              Criminal Division at No(s): CP-20-CR-0000164-2015


BEFORE: BOWES, J., PANELLA, J., and STABILE, J.

MEMORANDUM BY PANELLA, J.                                  FILED MAY 4, 2018

        Albert Gingerich appeals from the order entered in the Crawford County

Court of Common Pleas denying his first petition filed pursuant to the Post

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

        On December 30, 2014, the Commonwealth charged Appellant with 87

counts of sexual misconduct against his juvenile siblings. In exchange for the

Commonwealth’s agreement to nolle pros his remaining charges, Appellant

Appellant pled guilty to rape by forcible compulsion, and two counts of

indecent assault.1 On November 6, 2015, the court sentenced Appellant to an

aggregate five to twenty years’ incarceration, followed by a consecutive term



____________________________________________


1   18 Pa.C.S.A. §§ 3121(a)(1) and 3126(a)(7), respectively.
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of twelve years’ probation.2 Appellant did not file any post-sentence motions

or a direct appeal. Appellant later timely filed his first, pro se PCRA petition.

        After the PCRA court appointed counsel, Appellant filed an amended

petition. In that petition, PCRA counsel alleged that both the ineffective

assistance of plea counsel and undue pressure from his church led to an

unknowing and involuntary guilty plea. Specifically, Appellant averred that he

accepted the guilty plea because plea counsel informed him that he would be

subject to mandatory minimum sentences if convicted of any charges subject

to sentencing under 42 Pa.C.S.A. § 9718(a).3 Based upon this information,

Appellant averred that the leadership of his church pressured him to accept

the guilty plea. As the imposition of a mandatory minimum sentence under §

9718(a) had been deemed unconstitutional prior to the filing of Appellant’s

charges,4 he argues that his guilty plea was unknowingly entered and

involuntarily induced.

        The PCRA court held a hearing on Appellant’s claims. Appellant testified

that Jeffrey Conrad, Esquire, represented him at the time charges were filed

until his sentencing. Appellant alleged that Attorney Conrad advised him to

____________________________________________


2   The court imposed a sentence of five to twenty years for the rape conviction.

3 Until it was deemed unconstitutional by Commonwealth v. Wolfe, 106
A.3d 800 (Pa. Super. 2014) aff’d 140 A.3d 651 (Pa. 2016), 42 Pa. C.S.A. §
9718(a) provided mandatory minimum sentences for a variety of sexual
offenses committed against juvenile victims.

4 Wolfe was decided on December 24, 2014, six days prior to the filing of
charges against Appellant.

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enter a guilty plea in order to avoid mandatory minimum sentences for

convictions subject to sentencing under § 9718(a). See N.T., PCRA

Evidentiary Hearing, 5/23/17, at 67. Appellant believed that these mandatory

minimum sentences were in place at the time he entered into his guilty plea,

and asserted that Attorney Conrad never advised him otherwise. See id., at

67, 70-71 If Appellant had known that his charges were not subject to

mandatory minimums, Appellant claimed that it would have affected his

decision to plead guilty. See id., at 67-68.

      Attorney Conrad confirmed that when he first spoke to Appellant

regarding his charges, he informed him that any convictions pursuant to §

9718(a) would result in the application of mandatory minimum sentences.

See id., at 10-17, 22-23. However, Attorney Conrad testified that once he

learned of the recent change in the law, he “absolutely” informed Appellant—

on more than one occasion—that he was the beneficiary of a change in the

law and that mandatory minimum sentences under § 9718(a) no longer

applied. See id., at 17-19, 23-28. As such, Attorney Conrad stated that

Appellant understood that mandatory minimum sentences did not apply at the

time he entered into his guilty plea on April 27, 2015. See id., at 32.

      The PCRA court denied Appellant’s petition and Appellant’s PCRA counsel

timely appealed. The PCRA court directed Appellant to file a Pa.R.A.P. 1925(b)

concise statement of errors complained of on appeal. However, prior to filing

his concise statement, Appellant retained current PCRA counsel, who entered

his appearance on July 5, 2017. The PCRA court granted Appellant an

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extension of time to file his 1925(b) statement, and Appellant ultimately

complied. Therein, Appellant raised for the first time his claims of PCRA

counsel ineffectiveness. See Appellant’s 1925(b) Statement, 7/31/17, at ¶

2(b).

        Appellant presents the following questions for our review.

        1. DID THE PCRA COURT ERR AND ABUSE ITS DISCRETION BY
           DENYING [APPELLANT’S] AMENDED PCRA PETITION WHICH
           SOUGHT TO WITHDRAW [APPELLANT’S] GUILTY PLEA
           BECAUSE    SAID   PLEA   WAS   UNKNOWINGLY    AND
           INVOLUNTARILY ENTERED?

        2. WAS [APPELLANT’S] PCRA COUNSEL INEFFECTIVE DURING
           [APPELLANT’S] PCRA HEARING FOR FAILING TO CALL SEVERAL
           DEFENSE WITNESSES?

Appellant’s Brief, at 4.

        Prior to reaching the merits of Appellant’s issues on appeal, we must

determine if Appellant has preserved his second issue for our review. In its

brief, the Commonwealth argues that Appellant has waived his claim of PCRA

counsel’s ineffectiveness by failing to raise these claims before the PCRA court.

See Commonwealth’s Brief, at 8. We agree.

        “[A]bsent recognition of a constitutional right to effective collateral

review, claims of PCRA counsel ineffectiveness cannot be raised for the first

time after a notice of appeal has been taken from the underlying PCRA

matter.” Commonwealth v. Ford, 44 A.3d 1190, 1201 (Pa. Super. 2012).

See also Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super. 2014) (en

banc). Here, Appellant did not raise PCRA counsel’s ineffectiveness before the



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PCRA    court.   Instead,   Appellant   raised    his   claim   of   PCRA   counsel

ineffectiveness for the first time in his Rule 1925(b) concise statement, which

was filed more than a month after he filed his notice of appeal. Thus, Appellant

has failed to preserve the issue of PCRA counsel’s ineffectiveness.

       Moving to Appellant’s remaining claim on appeal, Appellant asserts the

PCRA court abused its discretion by failing to grant Appellant’s request to

withdraw his guilty plea. Appellant contends he was entitled to withdraw his

plea as the ineffectiveness of guilty plea counsel as well as undue pressure

from church leadership led to an unknowing and involuntary guilty plea.

However, Appellant fails to support his argument that undue pressure from

church leadership to plead guilty entitled him to PCRA relief with any citation

to authority. As Appellant has not properly developed his argument pursuant

to   Pa.R.A.P.   2119(b),   we   find   this     argument   waived.    See,   e.g.,

Commonwealth v. Brougher, 978 A.2d 373, 376 (Pa. Super. 2009) (finding

claim waived where there was no citation to relevant authority). Thus,

Appellant’s sole preserved argument on appeal is his claim that the ineffective

assistance of guilty plea counsel resulted in an unknowing and involuntary

guilty plea.

       “On appeal from the denial of PCRA relief, our standard and scope of

review is limited to determining whether the PCRA court’s findings are

supported by the record and without legal error.” Commonwealth v.

Edmiston, 65 A.3d 339, 345 (Pa. 2013) (citation omitted). The PCRA court’s

findings will not be disturbed unless the certified record lacks support for the

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findings. See Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super.

2001). “Further, the PCRA court’s credibility determinations are binding on

this Court, where there is record support for those determinations.”

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

(citation omitted).

            In order to be eligible for PCRA relief, the petitioner must
      prove by a preponderance of the evidence that his conviction or
      sentence resulted from one or more of the enumerated
      circumstances found in Section 9543(a)(2), which includes the
      ineffective assistance of counsel.

             It is well-established that counsel is presumed effective, and
      to rebut that presumption, the PCRA petitioner must demonstrate
      that counsel’s performance was deficient and that such deficiency
      prejudiced him. To prevail on an ineffectiveness claim, the
      petitioner had the burden to prove that (1) the underlying
      substantive claim has arguable merit; (2) counsel whose
      effectiveness is being challenged did not have a reasonable basis
      for his or her actions or failure to act; and (3) the petitioner
      suffered prejudice as a result of counsel’s deficient performance.
      The failure to satisfy any one of the prongs will cause the entire
      claim to fail.

Commonwealth v. Benner, 147 A.3d 915, 919-920 (Pa. Super. 2016)

(quotation marks and citations omitted).

      Allegations of counsel’s ineffectiveness during the guilty plea process

are cognizable under the PCRA. See Commonwealth v. Hickman, 799 A.2d

136, 141 (Pa. Super. 2002). See also Commonwealth v. Lee, 820 A.2d

1285, 1287 (Pa. 2003) (“Claims challenging the effectiveness of [plea]

counsel’s stewardship during a guilty plea are cognizable under 42 Pa.C.S.A.

§ 9543(a)(2)(ii).”). However, “[a]llegations of ineffectiveness in connection



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with the entry of a guilty plea will serve as the basis for relief only if the

ineffectiveness caused the defendant to enter an involuntary or unknowing

plea.” Commonwealth v. Allen, 833 A.2d 800, 802 (Pa. Super. 2003)

(citation omitted).

         Appellant’s claim of ineffective assistance rests upon his contention that

Attorney Conrad failed to inform him that mandatory minimum sentences no

longer applied to his charges. Attorney Conrad denied that he failed to inform

Appellant of this change in the law. In fact, Attorney Conrad testified that he

informed Appellant multiple times of this change in the law, and was

absolutely certain that Appellant was aware that he was no longer subject to

mandatory minimum sentences at the time of his guilty plea. In ruling against

Appellant, the PCRA court accepted Attorney Conrad’s testimony as credible

and accurate—and squarely rejected Appellant’s version of events. See PCRA

Court’s Opinion, 6/2/17, at 7-8. The record supports this credibility

determination is supported by testimony of record, and thus, we are bound

by it.

         Appellant has failed to demonstrate that there is arguable merit to the

underlying claim of ineffectiveness. Therefore, there is no basis to conclude

that ineffective assistance of counsel caused him to enter an involuntary guilty

plea.

         Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/4/2018




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