J-S08019-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

DAMIEN D. MILCHAK,

                            Appellant                 No. 826 WDA 2017


                    Appeal from the PCRA Order, May 9, 2017,
              in the Court of Common Pleas of Washington County,
               Criminal Division at No(s): CP-63-CR-0001392-2012


BEFORE: LAZARUS, J., KUNSELMAN, J., and STEVENS, P.J.E.*

MEMORANDUM BY KUNSELMAN, J.                            FILED MARCH 9, 2018

        Appellant, Damien D. Milchak, appeals from the order denying his first

timely petition for relief filed pursuant to the Post Conviction Relief Act. 42

Pa.C.S.A. §§ 9541-46. We affirm.

        Appellant’s convictions arise from acts he perpetrated on his then ten-

year-old stepson.1       The PCRA court summarized the pertinent procedural

history as follows:

               On June 5, 2012, [Appellant] was charged with the
           following crimes: Rape of a Child; Involuntary Deviate
           Sexual Intercourse (2 counts), Sexual Intercourse with
           Animals, Endangering the Welfare of a Child and
           Corruption of Minors. [Appellant] initially had a series of

____________________________________________


1   Appellant was also charged with having intercourse with the family cat.



*Former Justice specially assigned to the Superior Court.
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        court-appointed attorneys.   On March 18, 2013, [plea
        counsel] entered her appearance to represent [Appellant].

            On May 17, 2013, [Appellant] pled nolo contendere to
        three charges – Endangering the Welfare of a Child (F3),
        Indecent Assault and (M2) (amended charge) and
        Corruption of the Morals of a Minor and received an
        aggregate sentence of 11 ½ to 23 months of incarceration
        followed by five years of probation. [Appellant] was also
        required to report under Megan’s Law for a period of 15
        years.     The remaining charges were nolle prossed.
        [Appellant] completed a written colloquy and the Court
        conducted an oral colloquy. [Appellant] was released from
        jail three days later, on May 20, 2013, and placed on
        probation. On June 17, 2013, [Appellant], acting pro se,
        filed a Notice of Appeal of his sentence to the Pennsylvania
        Superior Court. [Plea counsel] sought leave to withdraw
        her appearance, which was granted, and [Appellant] was
        appointed appellate counsel by this Court. [Appellant],
        through his counsel, later withdrew his appeal to Superior
        Court on January 22, 2015.

            On November 5, 2015, [Appellant] filed a pro se PCRA
        petition. PCRA counsel was appointed and he filed an
        Amended PCRA on July 22, 2016. In the Amended PCRA,
        [Appellant] asserted that [plea counsel] was ineffective in
        her representation of him by failing to provide him all of
        the discovery that she had, thus making his plea
        unknowing and involuntary. The relief requested was a
        withdrawal of the plea and placement of the case on the
        trial list.

                                   ***

           The Court granted [Appellant] a hearing on his PCRA.
        Four witnesses testified: [Appellant’s previous counsel],
        [plea counsel, Rosella Milchak, [Appellant’s] mother, and
        [Appellant].

PCRA Court Opinion, 7/31/17, at 1-3.

     At the conclusion of the evidentiary hearing, the PCRA court took the

matter under advisement. By order entered May 9, 2017, the PCRA court


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denied Appellant’s petition. This timely appeal follows. Both Appellant and

the PCRA court have complied with Pa.R.A.P. 1925.

      Appellant raises the following issue:

         I.    Whether the PCRA court erred in denying
               [Appellant’s] amended PCRA petition where the
               evidence of record revealed that he received
               ineffective assistance of counsel in connection with
               the entry of his nolo contendere plea?

Appellant’s Brief at 4 (excess capitalization removed).

      The Superior Court’s standard of review of the denial of a PCRA

petition is limited to examining whether the court’s rulings are supported by

the evidence of record and free of legal error.    Commonwealth v. Volk,

138 A.3d 659, 661 (Pa. Super. 2016).

      Appellant’s claim alleges that plea counsel’s alleged ineffectiveness for

advising him to enter a nolo contendere plea.      To obtain relief under the

PCRA premised on a claim that counsel was ineffective, a petitioner must

establish by a preponderance of the evidence that counsel's ineffectiveness

so undermined the truth-determining process that no reliable adjudication of

guilt or innocence could have taken place.     Commonwealth v. Johnson,

966 A.2d 523, 532 (Pa. 2009).          “Generally, counsel’s performance is

presumed to be constitutionally adequate, and counsel will only be deemed

ineffective upon a sufficient showing by the petitioner.”   Id. This requires

the petitioner to demonstrate that: (1) the underlying claim is of arguable

merit; (2) counsel had no reasonable strategic basis for his or her action or


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inaction; and (3) petitioner was prejudiced by counsel's act or omission. Id.

at 533. A finding of "prejudice" requires the petitioner to show "that there is

a reasonable probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different."       Id.   In assessing a

claim of ineffectiveness, when it is clear that appellant has failed to meet the

prejudice prong, the court may dispose of the claim on that basis alone,

without a determination of whether the first two prongs have been met.

Commonwealth v. Travaglia, 661 A.2d 352, 357 (Pa. 1995).                 Counsel

cannot be deemed ineffective for failing to pursue a meritless claim.

Commonwealth v. Loner, 836 A.2d 125, 132 (Pa. Super. 2003) (en banc),

appeal denied, 852 A.2d 311 (Pa. 2004).

      This Court has recently reiterated the following with regard to claims

of claim of ineffectiveness involving regard to counsel’s performance during

the plea process:

         Ineffective assistance of counsel claims arising from the
         plea bargaining-process are eligible for PCRA review.
         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 into an
         involuntary of 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.

            The standard for post-sentence withdraw of guilty pleas
         dovetails with the arguable merit/prejudice requirements
         for relief based on a claim of ineffective assistance of plea
         counsel, . . . under which the defendant must show that
         counsel’s deficient stewardship resulted in a manifest


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         injustice, for example, by facilitating the entry of an
         unknowing, involuntary, or unintelligent plea.         This
         standard is equivalent to the “manifest injustice” standard
         applicable to all post-sentence motions to withdraw a
         guilty plea.

Commonwealth v. Kelley, 136 A.3d 1007, 1012-13 (Pa. Super. 2016)

(citations omitted).

       In support of his claim, Appellant argues that plea counsel failed to

share or review all relevant discovery with him.         Rather, plea counsel

provided Appellant with his entire file after she no longer represented him.

“Therein he discovered various documents – Unseen Discovery - that he did

not know existed.      According to Appellant, “[had plea counsel] reviewed

those documents with him prior to entering his plea, [he] would have

rejected the nolo contendere plea offer and instead taken the case to trial.”

Appellant’s Brief at 13.

       Nowhere within his brief does Appellant specifically identify the

documents and their contents, although he identified them in his PCRA

petition and admitted them as exhibits at the evidentiary hearing.        These

documents included interview notes with the minor victim, a letter from the

hospital stating that, after it examination if the victim it could not determine

whether a sexual assault occurred, two mental health treatment plans for

the minor victim, and a veterinary report that no evidence of trauma to the

cat.




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      The PCRA court summarized the testimony from this hearing as

follows:

               At the hearing [plea counsel] testified that she no
           longer had [Appellant’s] file, that she turned over all of the
           information to him at his request after the plea and
           sentence and after he appealed. Within the file that she
           released to [Appellant] were the five documents that
           [Appellant] claims were not shared or discussed. Although
           [plea counsel] specifically recall[ed] four out of the five
           documents, she clearly had all of them in her file. [Plea
           counsel] could not recall exactly how many times she met
           with [Appellant]. She clearly met with [Appellant] right
           after she was retained in March 2013, and again May 14,
           2013 at the jail and on May 15, 2013, in Court, and again
           on May 17, 2013, at the plea and sentencing hearing.
           [Plea counsel] is an experienced criminal defense attorney,
           having practiced since 1978. She stated that she did not
           provide copies to [Appellant], consistent with her usual
           practice when the client is incarcerated and the
           information is of a sensitive nature, but that she discussed
           all of the discovery with him. [Appellant] testified that
           [plea counsel] visited him at jail and had a thick discovery
           packet with her but that she only discussed [Pa.R.Crim.P.]
           600. [Appellant] also said they didn’t discuss anything.
           That defies logic. [Plea counsel] went to the jail to discuss
           [Appellant’s] case. According to [plea counsel], she went
           over the content of the documents and discussed defenses
           to the charges with [Appellant]. The credibility of the
           victim is a clear defense to crimes of this nature. The
           discovery points to the troubled nature and mental health
           issues of the victim.

PCRA Court Opinion, 7/31/17, at 4-5 (citations omitted).

      In addition, the PCRA court specifically “accepted [plea counsel’s]

testimony as credible that she discussed the defenses with [Appellant,]” and

“based on the testimony of plea counsel and all of the circumstances, that

the discovery was shared and discussed with [Appellant].” Id. at 5-6.


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      Our review of the record supports the PCRA court’s conclusions. The

PCRA court credited the testimony of counsel over the testimony and other

allegations made by Appellant at the PCRA hearing. We cannot disturb this

determination.   See Commonwealth v. Battle, 883 A.2d 641, 648 (Pa.

Super. 2005) (explaining that credibility determinations are solely within the

province of the PCRA court). Although Appellant cites to certain testimony

by plea counsel and statements by the PCRA court to support his claim that

the PCRA court’s credibility determinations are not supported by the record,

our review of the record as a whole establishes otherwise.

      Appellant also claims the fact that he entered a nolo contendere plea

rather than a guilty plea should somehow affect our review of plea counsel’s

effectiveness. We disagree. As this Court has summarized:

         [A]though a nolo contendere plea has the same effect as a
         guilty plea for sentencing and is considered a conviction, it
         is not an admission of guilt. Unlike a guilty plea, a nolo
         contendere plea does not involve the acknowledgement as
         to having committed any illegal act. Rather, the nolo
         contendere plea admits that the allegations, if proven,
         meet elements of the offense or offenses charged. Hence,
         in pleading no contest, [the defendant] did not admit to
         having committed the acts alleged.

Commonwealth v. Moser, 999 A.2d 602, 606 (Pa. Super. 2010) (citations

omitted).   The trial court explained this fact to Appellant during its oral

colloquy with him, and Appellant stated that he understood. N.T. 5/17/13,

at 12-13. All of the statements he made during the plea hearing are binding




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upon Appellant. See generally, Commonwealth v. Pollard, 832 A.2d 517

(Pa. Super. 2003).

     Finally, the PCRA court found that Appellant did not prove that he was

prejudiced. The court explained:

           Much has been made of Exhibit D, the veterinarian’s
           report that the cat had no evidence of trauma on June
           19, 2012. While [Appellant] had been charged with
           Sexual Intercourse with an Animal, he did NOT plead
           nolo contendere to that charge and that letter and its
           implications would not have [had an] impact on a
           decision to the three charges for which he was
           sentenced. Further, the other four documents that
           were allegedly not shared are reports by CYS about [the
           victim] after the charges were made.          Again, it is
           unrefuted that [plea counsel] spoke to [Appellant]
           generally about the quality of the Commonwealth’s
           evidence against him. The victim is [Appellant’s] step-
           son and it was known to everyone that [the victim] was
           under the care of CYS and that he had been in a
           residential treatment program (Mars Home for Youth)
           for months before being placed with his father. The
           believability of the victim was going to be a key issue at
           trial and [Appellant] was aware of the issues that could
           impeach [the victim’s] credibility. That issue was the
           reason the Commonwealth offered to dismiss the very
           serious charges.         The sentence offered allowed
           [Appellant] to be released from jail almost immediately,
           within days. [Appellant’s] comments and questions [at
           the plea and sentencing hearing] concerned his release
           date. His trial was set for [July] 8, 2013. [Appellant’s]
           focus was on his release and not preparing for trial.

PCRA Court Opinion, 7/31/17, at 6.    Once again, our review of the record

supports the PCRA court’s conclusions. See also, Moser, 999 A.2d at 604

(explaining that, due to evidentiary issues and mental health issues with the




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Commonwealth’s witnesses, it believed a          nolo contendere   plea was

appropriate.)

      In sum, for all of the above reasons the PCRA court correctly

concluded that Appellant failed to establish plea counsel’s ineffectiveness.

We therefore affirm its order denying post-conviction relief.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/9/2018




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