J-S16017-18



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37



    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    JOE ALEMAN                                 :
                                               :
                      Appellant                :   No. 1200 MDA 2017


                    Appeal from the PCRA Order July 5, 2017
        In the Court of Common Pleas of Centre County Criminal Division
          at Nos: CP-14-CR-0002015-2008, CP-14-CR-0002166-2008,
                            CP-14-CR-0002167-2008


BEFORE:      BOWES, J., MURRAY, J., and PLATT*, J.

MEMORANDUM BY MURRAY, J.:                                  FILED MAY 08, 2018

        Joe Aleman (Appellant) appeals pro se from the order denying his timely

petition filed pursuant to the Post Conviction Relief Act1 (PCRA). We affirm.

        Appellant was charged with sexually abusing three juveniles, who

ranged in age from 14 to 16 years old. On December 21, 2009, Appellant

entered negotiated guilty pleas to the following charges: (1) at CP-14-CR-



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* Retired Senior Judge assigned to the Superior Court.

1   42 Pa.C.S.A. §§ 9541-9546.
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0002015-2008, two counts of rape of a child;2 (2) at CP-14-CR-0002166-

2008, one count of incest;3 and (3) at CP-14-CR-0002167-2008, five counts

of indecent assault.4

        On July 12, 2010, the trial court imposed an aggregate term of 30 to 60

years’ imprisonment. It appears Appellant’s sentences for his two counts of

rape of a child, which were to run consecutively, were mandatory 10-year

terms under 42 Pa.C.S.A. § 9718(a)(3).5          See 42 Pa.C.S.A. § 9718(a)(3)

(person convicted of rape of a child shall be sentenced to mandatory term of

not less than 10 years). Appellant did not file a direct appeal.

        On May 16, 2011, Appellant filed a timely pro se PCRA petition,6 alleging

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2   18 Pa.C.S.A. § 3121(c).

3   18 Pa.C.S.A. § 4302.

4   18 Pa.C.S.A. § 3126(a)(8).

5 While the written plea colloquy stated that the charges of rape of a child
carried mandatory 10-year minimum sentence terms (with no statutory
authority provided), there is no indication in the certified record that
mandatory terms were in fact imposed.          Nevertheless, in addressing
Appellant’s illegal sentence claim, the PCRA court, which also presided over
the guilty plea and sentencing, did not dispute that Appellant received a
mandatory 10-year minimum sentence for rape of a child.

6 Appellant’s judgment of sentence became final on August 11, 2010, when
the 30-day period for taking an appeal concluded. See Pa.R.A.P. 903(a)
(appeal shall be filed within 30 days of entry of order). He then had one year,
until August 11, 2011, to file a PCRA petition. See 42 Pa.C.S.A. § 9545(b)(1)
(generally, any petition under the PCRA shall be filed within one year of the
date the judgment becomes final). Appellant’s petition filed May 16, 2011
was thus timely.



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that his guilty plea was not knowingly entered because he was taking

psychotropic medications. The PCRA court appointed Ronald S. McLaughlin,

Esquire, to represent Appellant. In August 2013, Appellant filed two pro se

motions, which the PCRA court denied because Appellant was represented by

counsel.    Appellant filed a pro se appeal, which this Court quashed as

premature on November 4, 2013, because there was no final order granting

or denying PCRA relief.7 Subsequently, upon a second motion by Attorney

McLaughlin to withdraw from representation, the PCRA court permitted him to

withdraw.

       On August 15, 2014, the court appointed Justin P. Miller, Esquire, to

represent Appellant. On May 13, 2015, Appellant filed a pro se “Amended

PCRA Petition and Memorandum,” which reiterated that medication caused

him to enter an unknowing or involuntary guilty plea, and further asserted,

inter alia, that his plea counsel was ineffective for failing to investigate and

present evidence of his mental health. On September 30, 2016, Appellant

filed a third pro se PCRA petition, which averred, for the first time, that his 42

Pa.C.S.A. § 9718 mandatory minimum sentences for rape of a child were

illegal under Commonwealth v. Wolfe, 140 A.3d 651 (Pa. 2016).                See

Wolfe, 140 A.3d at 662 (pursuant to Alleyne, 42 Pa.C.S.A. § 9718 is


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7 Commonwealth v. Aleman, 1697 MDA 2013 (per curiam order) (Pa.
Super. Nov. 4, 2013).


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unconstitutional on its face, non-severable, and void).

      In February 2017, Attorney Miller filed a petition to withdraw from

representation. Attorney Miller concluded that Appellant was not entitled to

any   sentencing    relief   under   Alleyne   because    Commonwealth         v.

Washington, 142 A.3d 810 (Pa. 2016), held that Alleyne did not apply

retroactively and that an Alleyne claim could not be raised under the PCRA.

Attorney Miller further concluded there was no merit to Appellant’s claims of

an insufficient guilty plea colloquy and ineffective assistance of plea counsel.

Appellant filed a pro se response, claiming, for the first time, that his plea was

defective because he was not informed of the elements of the charges. On

April 3, 2017, the PCRA court granted Attorney Miller’s petition to withdraw

and issued Pa.R.Crim.P. 907 notice of intent to dismiss Appellant’s petition

without a hearing. Appellant filed a pro se response, reiterating his illegal

sentence argument, and the Commonwealth filed a motion to dismiss the

petition.

      The PCRA court denied Appellant’s PCRA petition on July 5, 2017,

holding that pursuant to Washington, Appellant was precluded from PCRA

relief under Alleyne. PCRA Court Opinion, 7/5/17, at 3-4. The court further

held that Appellant’s claims of a defective plea colloquy — due to medication

and the alleged lack of explanation of the elements of the charges — were

meritless.

      Appellant took this timely pro se appeal and complied with the PCRA


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court’s order to file a statement of matters complained of on appeal.       He

presents the following issues for our review:

      I. Did the Lower Court abuse its discretion by affirming
      [Appellant’s] illegal and unconstitutional sentence, as [Appellant]
      challenged his sentence under the Sixth Amendment?

      II. Was [Appellant’s] Guilty Plea defective, as he could not
      voluntary, knowingly, and intelligently accept his guilty plea?

         A. Did the Sentencing Court abuse its discretion by not
         disclosing the Elements of the Charges, as required by
         [Henderson v. Morgan, 426 U.S. 637 (1976),] and
         [Commonwealth v. Ingram, 316 A.2d 77 (Pa. 1974)]?

         B. Was [Appellant] coherent enough to accept his Guilty Plea
         voluntary, knowingly, and intelligently, due to the Psychotropic
         medication [Appellant] was taking?

         C. Could [Appellant] accept a Guilty Plea voluntary, knowingly,
         and intelligently, since the facts of the case [were] never
         explained to [Appellant] in a way that [Appellant] could
         understand?

Appellant’s Brief at 4-5.

      In his first issue, Appellant alleges that the PCRA court abused its

discretion in denying relief on his illegal sentence claim. He maintains that

Washington — which held that Wolfe did not apply retroactively —

improperly “over[rode]” Section 9542 of the PCRA, which provides, “This

subchapter provides for an action by which . . . persons serving illegal

sentences may obtain collateral relief.” Appellant’s Brief at 10, quoting 42

Pa.C.S.A. § 9542. Appellant further contends that any holding on retroactivity

does not apply to him because his PCRA petition was timely filed, a fact the

PCRA court “confirmed.” Appellant’s Brief at 11-12.

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       “Our standard of review of a trial court order granting or denying relief

under the PCRA calls upon us to determine ‘whether the determination of the

PCRA court is supported by the evidence of record and is free of legal error.’”

Commonwealth v. Barndt, 74 A.3d 185, 191-92 (Pa. Super. 2013).

       In   Washington,        the    defendant   received   mandatory   minimum

sentences under 42 Pa.C.S.A. § 9712(a) (visibly possessing a firearm or

replica). Washington, 142 A.3d at 811. His judgment of sentence became

final in 2006, and he filed a timely PCRA petition, which was denied. Id. at

812. While the defendant’s appeal was pending, the United States Supreme

Court issued Alleyne in 2013, which “held that any fact that, by law, increases

the penalty for a crime must be treated as an element of the offense,

submitted to a jury, rather than a judge, and found beyond a reasonable

doubt.” Id. at 812, citing Alleyne, 133 S.Ct. at 2163. The Pennsylvania

Supreme Court, however, held that Alleyne did not apply retroactively to

cases pending on collateral review, including the defendant’s, and thus

concluded that the defendant’s 42 Pa.C.S.A. § 9712(a) mandatory minimum

sentences were not illegal under Alleyne.8 Washington, 142 A.2d at 820.

       Furthermore, we note that since Appellant filed his notice of appeal, the

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8The Washington Court applied the framework set forth in Teague v. Lane,
489 U.S. 288 (1989). Washington, 142 A.3d at 811, 813-14 (“Under
Teague, a new constitutional rule of criminal procedure does not apply, as a
general matter, to convictions that were final when the new rule was
announced.”).



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Pennsylvania Supreme Court decided Commonwealth v. DiMatteo, 177

A.3d 182 (Pa. 2018).9 In that case, the Court held that Washington does

not bar a petitioner “serving an illegal sentence from relief when such relief is

sought in a timely PCRA petition and the judgment of sentence was not final

when Alleyne was announced.” Id. at 191 (emphasis added). In so holding,

the Court specified that Washington’s holding was limited to cases in which

a PCRA petitioner’s judgment of sentence was final prior to June 17, 2013,

the date Alleyne was decided. Id. at 192.

       In this case, as stated above, Appellant’s judgment of sentence became

final on August 11, 2010, prior to the date of the Alleyne decision, June 17,

2013. We hold the PCRA court thus properly applied Washington to conclude

that Appellant was not entitled to PCRA relief on any claim made pursuant to

Alleyne. See DiMatteo, 177 A.3d at 191-92; Washington, 142 A.2d at

820.

       In his second issue, Appellant alleges that his guilty plea was defective

due to various medications he was taking, which had adverse side effects,

including dizziness, anxiety, fatigue, confusion, and loss of memory or

concentration. Appellant contends that once he informed the trial court that



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9Although DiMatteo was issued after the PCRA court’s order denying relief,
we may apply that opinion in this appeal. See Blackwell v. State Ethics
Comm’n, 589 A.2d 1094, 1099 (Pa. 1991) (“[T]he general rule followed in
Pennsylvania is that we apply the law in effect at the time of the appellate
decision”).

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he was taking medication, the court should have conducted a separate

colloquy to determine whether he was competent to understand the

proceedings. Appellant further asserts that his plea was defective because

the trial court did not explain the facts of the case or all the elements of the

charges in a manner he could understand. He also claims plea counsel “should

be held . . . responsible for not explaining the elements to him nor having the

Court . . . explain the elements.” Appellant’s Brief at 19.

      Although Appellant’s amended PCRA petitions averred plea counsel’s

ineffectiveness for failing to investigate or present evidence on his mental

health, Appellant raises no such ineffectiveness claim on appeal. We hold that

his discrete claim, that his mental state caused his plea to be defective, is not

cognizable under the PCRA because it could have raised on direct appeal. See

42 Pa.C.S.A. § 9543(a)(3) (to be eligible for PCRA relief, petitioner must prove

that the allegation of error as not been previously litigated or waived); see

also 9544(b) (“[A]n issue is waived if the petitioner could have raised it but

failed to do so before trial, at trial, during unitary review, on appeal or in a

prior state postconviction proceeding.”).

      However, Appellant’s additional claim — that plea counsel was

ineffective for failing to advise him of the elements of the offenses charged

against him — is cognizable under the PCRA. See Barndt, 74 A.3d at 191.

         [I]n order to obtain relief based on [an ineffectiveness]
         claim, a petitioner must establish: (1) the underlying claim
         has arguable merit; (2) no reasonable basis existed for
         counsel’s actions or failure to act; and (3) petitioner suffered

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         prejudice as a result of counsel’s error such that there is a
         reasonable probability that the result of the proceeding
         would have been different absent such error.

      Trial counsel is presumed to be effective, and Appellant bears the
      burden of pleading and proving each of the three factors by a
      preponderance of the evidence.

Id. at 192 (citations omitted). “A defendant is bound by the statements he

makes during his plea colloquy, and may not assert grounds for withdrawing

the plea that contradict statements made when he pled.” Commonwealth

v. Stork, 737 A.2d 789, 790-91 (Pa. Super. 1999).

      Here, the PCRA court opined:

      [Appellant’s] written guilty plea colloquy form [included] a section
      explaining that all crimes have elements and for the
      Commonwealth to prove an individual guilty, [it] would have to
      prove all elements of the crime. Handwritten under “elements of
      the crime” on this form are the words “see attached.” Attached
      to the written guilty plea colloquy is the criminal information for
      each docket, listing the elements of each crime to which
      [Appellant] was pleading guilty. Where the written guilty plea
      colloquy asked if [Appellant] had any questions in regard to the
      elements of the crimes, [Appellant] wrote “no”.                 The
      circumstances surrounding [Appellant’s] plea indicate an
      understanding of the elements of the crimes to which [Appellant]
      pleaded guilty.      Therefore, the Court finds no evidence
      [Appellant’s] guilty plea was not entered knowingly, voluntarily,
      and intelligently.

PCRA Court Opinion, 7/5/17, at 4-5.

      Appellant does not address, let alone dispute, the PCRA court’s

observations.   Our review of the written plea colloquy confirms the PCRA

court’s observation that a copy of the information, listing all the charges and

elements thereof, was attached. Additionally, the plea colloquy form stated


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“Do you understand the elements of the charges?” and the answer “Yes” is

handwritten. Appellant’s Written Plea Colloquy, 12/21/09, at 1. Appellant is

bound by this statement.     See Stork, 737 A.2d at 790-91.         Accordingly,

Appellant’s underlying issue — that the elements of the charges were not

properly explained to him — lacks merit, and Appellant advances no argument

under the other two prongs of an ineffectiveness claim. See Barndt, 74 A.3d

at 192; Appellant’s Brief at 19 (sole discussion of ineffectiveness claim is that

his “attorney should be held reliable and responsible for not explaining the

elements to him nor having the Court explain the elements of the charges

against him in open court”). We thus affirm the denial of relief as to these

claims.

      For the foregoing reasons, we affirm the PCRA court’s order denying

Appellant’s PCRA petition.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/8/2018




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