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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.                             :
                                               :
                                               :
    JOHN ROBERT ADAMS                          :
                                               :
                       Appellant               :   No. 1869 WDA 2017

                Appeal from the PCRA Order November 22, 2017
               In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0006922-2016

BEFORE: PANELLA, J., SHOGAN, J., and MUSMANNO, J.

MEMORANDUM BY PANELLA, J.:                                FILED JULY 09, 2019

       John Robert Adams, pro se, appeals from the order denying his first

petition for relief pursuant to the Post Conviction Relief Act (“PCRA”), see 42

Pa.C.S.A. §§ 9541-9546. Adams contends the PCRA court erred in concluding

his claims of ineffective assistance of counsel had no merit without first holding

a hearing. We affirm.

       Pursuant to a plea agreement, Adams pleaded guilty to one count of

Involuntary Deviate Sexual Intercourse (“IDSI”), a second IDSI count under

a different subsection, two counts of Aggravated Indecent Assault, and one

count each of Sexual Abuse of Children, Endangering the Welfare of Children,

Corruption of Minors, and Possession of Child Pornography.1         After Adams


____________________________________________


1See 18 Pa.C.S.A. §§ 3123(a)(1), 3123(a)(7), 3125(a)(8), 6312(b),
4304(a)(1), 6301(a)(1)(iii), and 6312(d)(1), respectively.
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accepted the plea agreement, the trial court sentenced him to five to ten years

of incarceration on February 9, 2017. After this sentencing, Adams did not

file a post-sentence motion or direct appeal.

       On August 7, 2017, Adams filed his first PCRA petition.     Thereafter,

appointed counsel filed a petition to withdraw and a Turner/Finley2 “no

merit” letter. Subsequently, the PCRA court dismissed Adams’s PCRA petition

and granted appointed counsel’s petition to withdraw. Adams’s timely appeal

followed.

       Adams asserts three errors on appeal:

       1) The PCRA court erred in denying his petition because it did not
       allow for an evidentiary hearing nor provide a meaningful review
       of his claim of ineffective assistance of counsel, where Adams
       avers his counsel failed to protect his post-sentence and direct
       appeal rights.

       2) The PCRA court erred in denying his petition because Adams
       was illegally sentenced under the wrong statute.

       3) The PCRA court erred in denying his petition because said
       petition included a merited argument regarding Adams’ counsel
       failing to subpoena critical witnesses on the day of trial.

See Appellant’s Brief, at 4.

       Adams’s first ineffective assistance of counsel claim can be summarized

as follows. Adams claims that he presented letters to both trial counsel and

the trial court requesting the status of his requested post-sentence motion



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2 See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988);
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).

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and direct appeal. As it is undisputed that counsel did not file post-sentence

motions or an appeal, Adams contends counsel violated the provisions of Roe

v. Flores-Ortega, 528 U.S. 470 (2000).

      Specifically, Adams argues that there was inadequate consultation

between Adams and counsel as to whether Adams wanted to appeal.

Moreover, Adams believes he presented a material issue of fact to the PCRA

court that required a hearing before the court could properly dismiss his

petition.

      Trial counsel must make “a reasonable effort to discover the defendant’s

wishes” regarding the defendant’s desire to take an appeal. Flores-Ortega,

528 U.S. at 478. “If counsel has consulted with the defendant, the question

of deficient performance is easily answered: Counsel performs in a

professionally unreasonable manner only by failing to follow the defendant’s

express instructions with respect to an appeal.” Id. However, “[i]f counsel

has not consulted with the defendant, the court must … ask a second …

question: whether counsel’s failure to consult with the defendant itself

constitutes deficient performance.” Id. From this, the United States Supreme

Court held that trial counsel

      has a constitutionally imposed duty to consult with the defendant
      about an appeal when there is reason to think either (1) that a
      rational defendant would want to appeal (for example, because
      there are nonfrivolous grounds for appeal), or (2) that this
      particular defendant reasonably demonstrated to counsel that he
      was interested in appeal.




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Id., at 480. There is, however, no bright-line rule that “counsel must always

consult with the defendant regarding an appeal.” Id.

       “Where a petitioner can establish that but for counsel’s erroneous

advice, he would have filed a direct appeal, he is entitled to the reinstatement

of his direct appeal rights.” Commonwealth v. Markowitz, 32 A.3d 706,

717 (Pa. Super. 2011). We have also held that “failing to properly advise a

client can be grounds for an ineffectiveness claim.” Id.

      However, “counsel is presumed to be effective and the burden of

demonstrating ineffectiveness rests on the appellant.” Commonwealth v.

Rivera, 10 A.3d 1276, 1279 (Pa. Super. 2010). To meet this burden, an

appellant must demonstrate:

      1) that the underlying claim has merit;
      2) counsel had no reasonable strategic basis for his or her action
         or inaction; and
      3) but for the errors of omissions of counsel, there is a reasonable
         probability that the proceedings would have been different.

Id.   In its opinion, the PCRA court states that Adams “has produced no

evidence that he requested [a post-sentence motion or direct appeal] be

filed.” PCRA Court Opinion, 7/11/18, at 3. In contrast, Adams did attach to

his PCRA petition “a letter from [his] counsel that stated [Adams] did not

direct counsel to file a post-sentence motion or direct appeal.” Id.

      Adams affixed to his brief a letter dated July 9, 2017. In the letter,

Adams stated that he “would like to know the status of [his] post sentence

motion or the direct appeal.” Appellant’s Brief, Appendix E.


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      July 9, 2017, is exactly five months after Adams’s sentencing occurred.

There is no additional evidence of record to establish Adams’s desire to appeal

any aspect of this case. Nor is there anything to even suggest that Adams

desired to file either a timely post-sentence motion or a timely direct appeal.

      Conversely, the sentencing transcript leads to only one conclusion: that

Adams had been apprised of and was cognitively aware of his post-sentence

and appellate rights.   See N.T., 2/9/17, at 23-24 (indicating that the trial

court identified Adams’s post-sentencing rights, Adams stated that he had

spoken to his attorney about those rights, and that Adams unequivocally

remarked that he understood those rights). We have stated that “we will not

allow evidence to contradict the terms of the record, where the trial court’s

strict adherence to the detailed procedures of the plea colloquy ensure[s] that

[an] [Appellant] was fully informed of the nature and results of his plea.”

Commonwealth v. Stork, 737 A.2d 789, 791 (Pa. Super. 1999).

      Adams admitted, during his plea colloquy, to having discussed with his

post-sentencing rights with counsel.    Further, there is a complete lack of

timely indicia that Adams’s counsel “fail[ed] to follow the defendant’s express

instructions with respect to an appeal.” Flores-Ortega, 528 U.S. at 478. We

therefore cannot conclude the PCRA court erred in finding that counsel was

not ineffective.

      Even if we assume Adams’s counsel had not consulted with Adams,

Adams has not established a right to relief under Flores-Ortega as he has


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not established that he conveyed to counsel that he was interested in a timely

appeal. See 528 U.S. at 480. Adams’s post hoc letter, dated some five months

after sentencing, suggesting that he was interested in either the filing of a

post-sentence motion or an appeal, does not change this result.

      Nor has Adams established that a rational defendant in his position

would desire to appeal the judgment of sentence. Adams fails to identify any

non-frivolous grounds for an appeal. The record belies his claim that he did

not understand that the court could run his sentences consecutively. See N.T.,

2/9/17, at 5, 16 (prosecutor noting “[t]he defendant will serve five to ten

years of state incarceration plus probation set by the [c]ourt upon release”),

(defense counsel noting “I would submit that [Adams] was here today knowing

that he was probably taking five to ten”). As a result, Adams has not exhibited

that counsel erred in not filing an appeal in the absence of Adams

communicating his desire to do so.

      Ancillary to Adams’s ineffective assistance of counsel claim is his

contention that the PCRA court failed to rule on his motion for extension of

time to file a response to the notice of intention to dismiss. See Appellant’s

Brief, at 15.   Adams contends that the PCRA court violated Pa.R.Crim.P.

905(a), as it did not rule on Adams’s motion for extension of time in order to

amend his PCRA petition to be responsive to PCRA counsel’s Turner/Finley

Letter and the PCRA court’s notice of intent to dismiss. See Commonwealth

v. Williams, 828 A.2d 981, 987-88 (Pa. 2003) (identifying that the Rules of


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Criminal Procedure “explicitly demand[] action from a judge allowing

amendment or withdrawal of a petition”). This claim is not present in his Rule

1925(b) concise statement of matters complained of on appeal nor is it

included within the statement of questions involved in his brief. Accordingly,

in light of these deficiencies, Adams has waived this issue.       See Pa.R.A.P.

1925(b)(4)(vii); Pa.R.A.P. 2116(a).

      Adams next claims that the PCRA court’s denial of his petition was

mistaken because he was sentenced under the wrong statute. As such, he

believes his correspondingly enhanced sentence under the incorrect statute

was illegal. Essentially, Adams asserts that the victim was not under the age

of 16 at the time he committed the various offenses. Adams argues that

      when the court incorrectly sentenced [Adams] under 18
      Pa.[C.S.A. §] 3123(a)(7) and 18 Pa.[C.S.A. §] 3126(a)(8) they
      [sic] elevated his punishment, his sentence, as well as his parole
      and probation requirements. This placed him in a different
      classification requiring different programs and review for
      activities, visits, education, probation and parole.

Appellant’s Brief, at 19.   To bolster his position, Adams singularly cites to

Commonwealth v. Flanagan, 854 A.2d 489 (Pa. 2004), for the proposition

that a guilty plea can be defective if there is an “absence of a

contemporaneous record of the factual basis for the plea and [an] erroneous

… instruction” as to the sentenced crime. 854 A.2d at 500.

      We   note   that   the   argument   section   of   Adams’s    brief   covers

approximately one and one-half pages of text. In that space, the argument




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presented is convoluted, asserting both that the sentence is illegal and that

the guilty plea was unknowingly entered.

      “When a party’s brief fails to conform to the Rules of Appellate Procedure

and the defects are substantial, this Court may, in its discretion, quash or

dismiss the appeal pursuant to Rule 2101.” Giant Food Stores, LLC v. THF

Silver Spring Development, L.P., 959 A.2d 438, 443 (Pa. Super. 2008)

(citing Pa.R.A.P. 2101). “When issues are not properly raised and developed

in briefs, when the briefs are wholly inadequate to present specific issues for

review[,] a Court will not consider the merits thereof.” Branch Banking and

Trust v. Gesiorski, 904 A.2d 939, 942-943 (Pa. Super. 2006).

      While this court is willing to liberally construe materials filed by a
      pro se litigant, we note that appellant is not entitled to any
      particular advantage because she lacks legal training. As our
      supreme court has explained, any layperson choosing to represent
      herself in a legal proceeding must, to some reasonable extent,
      assume the risk that her lack of expertise and legal training will
      prove her undoing.

Id. at 942 (citations omitted). This Court does not take on the mantle of

advocate and perform as appellant’s counsel. See Commonwealth v. Maris,

629 A.2d 1014, 1017 (Pa. Super. 1993). We therefore parse Adams’s

argument to the best of our ability; any issue we do not address that Adams

believes he has raised are waived due to the defects in his brief.

      First, to the extent Adams frames this question as an “illegality of the

sentence” issue, we acknowledge it would not be subject to waiver, as argued

by the Commonwealth. If there were a proper challenge to the legality of a


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sentence before us, Adams’s plea would not have operated as waiver to the

issue.    “The 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.” Commonwealth v. Tareila, 895 A.2d 1266, 1267 (Pa. Super.

2006).

         However, we conclude Adams’s argument, properly read, does not

constitute a challenge to the legality of his sentence. The universe of what

constitutes an illegal sentence is not limitless. We have interpreted “illegal

sentences” as “a class of cases that includes: (1) claims that the sentence fell

outside of the legal parameters prescribed by the applicable statute; (2)

claims involving merger/double jeopardy; and (3) claims implicating the rule

in Apprendi v. New Jersey, 530 U.S. 466 (2000).”             Commonwealth v.

Farrow, 168 A.3d 207, 212 (Pa. Super. 2017).

         Adams “maintains that at the time of the alleged offense(s), the victim

was sixteen.” Appellant’s Brief, at 19 (unnumbered). He therefore contends

the court “elevated his punishment, his sentence, as well as his parole and

probation requirements.” Id.

         He does not argue that sentence imposed was greater than the statutory

maximum. Nor is there any plausible reading of his argument that invokes

merger or double jeopardy concerns have been invoked. Therefore, the only

possible basis to conclude that Adams’s sentence is illegal is that the trial court

violated the dictates of Apprendi v. New Jersey.


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      The United States Supreme Court in Apprendi held that “[o]ther than

the fact of a prior conviction, any fact that increases the penalty for crime

beyond the prescribed statutory maximum must be submitted to a jury, and

proved beyond a reasonable doubt.” 530 U.S. at 490. Here, however, Adams

pled guilty to the charges at issue. During his guilty plea, Adams stipulated to

all of the facts necessary to authorize the sentences imposed:

            THE COURT:         Have you reviewed the affidavit of
            probable cause being the police report and all of the
            discovery in this case with [your attorney?]

            [Adams]:            Yes, I have Your Honor.

            THE COURT:      And would you like a factual summary or
            would you like to waive that and stipulate that the
            Commonwealth would be able to place a factual record
            summary on the record that would support the charges here
            today?

            [Adams]:       I would like to waive it and would let the
            Commonwealth stipulate.

N.T., Guilty Plea Hearing, 2/9/17, at 13.

      Furthermore, the only authority Adams cites in support of his argument

is Flanagan. In Flanagan, our Supreme Court did not address an illegal

sentence argument. Rather, it addressed an argument that plea counsel was

ineffective for allowing Flanagan to enter an unknowing guilty plea. See id. at

502-504. We therefore cannot construe Adams’s argument as a challenge to

the legality of his sentence.

      If we construe it as a challenge to the voluntariness of his guilty plea, it

is arguably waived. An issue is waived under the PCRA “if the petitioner could

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have raised it but failed to do so … on appeal.” See Commonwealth v.

Keaton, 45 A.3d 1050, 1060 (Pa. 2012). A claim that a guilty plea was

entered   unknowingly    is   cognizable     on   direct   appeal.   See,   e.g.,

Commonwealth v. Lincoln, 72 A.3d 606 (Pa. Super. 2013).

      On the other hand, this claim would be cognizable if Adams had couched

it as a challenge to the effective assistance of plea counsel. See, e.g.,

Commonwealth v. Fears, 86 A.3d 795, 806 (Pa. 2014) (finding challenge

to voluntariness of guilty plea was previously litigated and not cognizable

under the PCRA, while finding same claim couched as ineffective assistance of

counsel cognizable). However, Adams’s argument does not mention counsel,

let alone allege deficient performance.

      Under these circumstances, we can only treat Adams’s argument as a

claim that the lack of an explicit, on-the-record factual basis during the plea

colloquy rendered his plea unknowing and involuntary. See Appellant’s Brief,

at 20. However, we note that defendants are bound by statements they make

during their guilty plea colloquies and may not successfully assert any claims

that contradict those statements. See Commonwealth v. Muhammad, 794

A.2d 378, 384 (Pa. Super. 2002). Here, as quoted above, Adams told the court

he had reviewed the affidavit of probable cause with his attorney and that he

wished to stipulate that the Commonwealth could provide a factual summary

that would support all the charges to which he was pleading guilty. The

affidavit of probable cause asserted that Adams started sexually assaulting


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the victim when she was 13 years old. As Adams is bound by his stipulation,

he cannot now establish that there was an insufficient factual basis for his

guilty plea.

      In any event, Adams has not identified a “showing of prejudice

amounting to manifest injustice” that would allow for the withdrawal of a guilty

plea. Commonwealth v. Jackson, 569 A.2d 964, 966 (Pa. Super. 1990).

The trial court conducted an on-the-record inquiry into the specifics of the

crimes for which Adams was charged, and Adams assented to the terms of his

plea voluntarily, knowingly, and intelligently.      See Commonwealth v.

Kephart, 594 A.2d 358, 360 (Pa. Super. 1991). The testimony leads to the

unequivocal conclusion that Adams “understood the nature of the charges

against him,” which accordingly establishes the voluntariness of his plea.

Commonwealth v. Myers, 642 A.2d 1103, 1105 (Pa. Super. 1994) (citation

and quotations omitted).

      Adams has failed to establish his burden and prove manifest injustice.

As such, Adams is due no relief on this issue.

      In his final issue, Adams claims that his counsel failed to subpoena

critical witnesses on the day of trial, which induced him into accepting a guilty

plea moments before trial. Adams maintains that this inducement amounted

to coercive pressure, leaving him with no other choice but to accept the terms

of a plea agreement. Adams’s contention is not included in his PCRA petition

and his omission amounts to a waiver of this issue. See Pa.R.A.P. 302(a);


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see also Commonwealth v. Lambert, 797 A.2d 232, 240-41 (Pa. 2001)

(finding waiver of claims not raised in appellant’s PCRA petition).

      Even if this claim were properly preserved, Adams is once again bound

by the statements he made at the guilty plea. There, he conceded that no one

had “forced, threatened, or coerced” him into pleading guilty. N.T., Guilty Plea,

2/9/17, at 7. Adams further conceded he was satisfied with the services

counsel had provided him. See id. at 10. Adams would therefore be unable to

establish that counsel’s failure to subpoena critical witnesses on the day of

trial coerced Adams into involuntarily pleading guilty, even if the claim was

properly before us.

      Accordingly, we affirm the PCRA court’s order dismissing Adams’s PCRA

petition.

      Order affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/9/2019




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