J-S18012-16



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                      IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                          Appellee

                     v.

JOSHUA ALLEN KREISER,

                          Appellant                    No. 1220 MDA 2015


                  Appeal from the PCRA Order June 29, 2015
               In the Court of Common Pleas of Lebanon County
                          Criminal Division at No(s):
                           CP-38-CR-0000983-2013


BEFORE: BOWES, LAZARUS AND STRASSBURGER,* JJ.

MEMORANDUM BY BOWES, J.:                               FILED MARCH 04, 2016

       Joshua Allen Kreiser appeals from the June 29, 2015 order denying

PCRA relief. We affirm.

       On August 6, 2013, Appellant pled guilty to one count each of

aggravated     assault,   terroristic   threats,   simple   assault,   and   false

imprisonment, and two counts of recklessly endangering another person.

Appellant stabbed twenty-five year old Eric Saxbie in the lower back near

the kidney.    Eleni Solesky, the mother of Appellant’s child, witnessed the

stabbing and then locked herself in the bathroom.           Appellant told her he

would put down the knife if she would talk to him.            Ms. Solesky began

talking to Appellant, but when she began crying, Appellant picked up the

knife and repeated his demand.          Ms. Solesky told police she was in the

*
    Retired Senior Judge assigned to the Superior Court.
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bathroom for two hours.         Both Mr. Saxbie and Ms. Solesky identified

Appellant as the perpetrator.

      Appellant entered a negotiated guilty plea to all charges on December

19, 2013, following completion of a written guilty plea colloquy and an on-

the-record oral colloquy.   He was sentenced to five and one-half years to

fifteen years imprisonment on January 22, 2014, and he did not appeal.

      On January 23, 2015, Appellant filed a timely pro se PCRA petition and

Attorney Nicholas Sidelnick was appointed to represent him.           Counsel

subsequently filed an amended petition on Appellant’s behalf. Following an

evidentiary hearing on May 26, 2015, and the filing of briefs, the PCRA court

denied relief on June 29, 2015, finding no merit in Appellant’s claim that his

guilty plea was unknowing and involuntary due to ineffective assistance of

counsel.

      Appellant timely appealed and he presents one issue for our

consideration:

      1. Whether Plea Counsel was ineffective for unlawfully inducing
         Appellant into pleading guilty to Aggravated Assault, where
         such plea was involuntarily, unknowingly, and unintelligently
         made, as neither Plea Counsel nor the Commonwealth
         advised Appellant of the elements that needed to be proven
         in order to convict Appellant of Aggravated Assault, since
         such elements ceased to exist and, therefore, Appellant would
         not have reasonably been found guilty had he taken his case
         to trial?

Appellant’s brief at 4.




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       Initially, we note that our "standard of review of the denial of a PCRA

petition is limited to examining whether the evidence of record supports the

court's determination and whether its decision is free of legal error."

Commonwealth v. Smith, 121 A.3d 1049, 1052 (Pa.Super. 2015). “Our

scope of review is limited to the findings of the PCRA court and the evidence

of record, viewed in the light most favorable to the prevailing party at the

PCRA court level.”    Commonwealth v. Medina, 92 A.3d 1210, 1214-15

(Pa.Super. 2014) (citations and quotation marks omitted). When the PCRA

court’s credibility determinations are supported by the record, they are

binding on this Court.     The PCRA court’s legal conclusions, however, are

reviewed de novo. Id.

       Appellant’s claim is based on the alleged ineffectiveness of plea

counsel.   Counsel is presumed to have rendered effective representation.

Commonwealth v. Stewart, 84 A.3d 701, 707 (Pa.Super. 2013). The test

for establishing that trial counsel was ineffective in Pennsylvania is based

upon    Strickland    v.    Washington,     466     U.S.   668   (1984)    and

Commonwealth v. Pierce, 527 A.2d 973 (Pa. 1987). Commonwealth v.

Spotz, 84 A.3d 294, 303 n.3 (Pa. 2014).           "To establish trial counsel's

ineffectiveness, a petitioner must demonstrate: (1) the underlying claim has

arguable merit; (2) counsel had no reasonable basis for the course of action

or inaction chosen; and (3) counsel's action or inaction prejudiced the

petitioner." Id.; Commonwealth v. Johnson, 966 A.2d 523, 536 (Pa.

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2009). If the petitioner fails to meet any one of the three prongs, he is not

entitled to relief. Commonwealth v. Natividad, 938 A.2d 310 (Pa. 2007).

       Appellant pled guilty to several charges including aggravated assault

pursuant to 18 Pa.C.S. § 2702(a)(1), which provides:

              A person is guilty of aggravated assault, graded as a
       felony of the first degree, if he attempts to cause serious bodily
       injury to another, or causes such injury intentionally, knowingly
       or recklessly under circumstances manifesting extreme
       indifference to the value of human life.

18 Pa.C.S. § 2702(a)(1).

       The crux of Appellant's complaint is that plea counsel's failure to

inform him of the elements of aggravated assault constituted ineffective

assistance of counsel and caused him to enter an involuntary, unknowing

and unintelligent plea to that charge.1          It is well-settled that ineffective

assistance of counsel claims that are founded on the plea-bargaining process

are eligible for review under the PCRA. Commonwealth ex rel. Dadario v.

Goldberg, 773 A.2d 126 (Pa. 2001). However, where the underlying

ineffectiveness implicates a guilty plea, such a claim will provide relief only

"if   the   ineffectiveness    caused     an   involuntary   or   unknowing   plea."

Commonwealth v. Diaz, 913 A.2d 871, 872 (Pa.Super. 2006).                        In

determining whether a plea was knowing, intelligent, and voluntary, we

____________________________________________


1
  Appellant does not challenge or seek to withdraw his guilty plea to the
remaining five charges.



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consider the totality of the circumstances, including any written and oral

plea colloquies. Commonwealth v. Allen, 732 A.2d 582, 587 (Pa. 1999);

Commonwealth v. Bedell, 954 A.2d 1209 (Pa.Super. 2008).             Where a

petitioner alleges that guilty plea counsel was ineffective, he must

demonstrate that, absent counsel's incorrect advice or failure to advise,

there is a reasonable probability he would have not have pled guilty and

would have proceeded to trial.   Commonwealth v. Barndt, 74 A.3d 185

(Pa.Super. 2013).

     Appellant charges counsel with failing to explain the elements of

aggravated assault and, consequently, complains he did not understand the

elements of the offense when he pled guilty. Had he been apprised of the

elements, he maintains he would have opted to proceed to trial rather than

accept a plea because he could not have reasonably been found guilty of the

offense.

     At the evidentiary hearing, Appellant offered the following testimony.

He met with counsel three or four times.     N.T., 5/26/15, at 4.    Counsel

provided him with discovery, which included the criminal information that

outlined each of the charges against him.    Id. at 6.   However, Appellant

stated that he did not understand the elements of the offenses with which he

was charged. In his next breath, Appellant conceded that he knew that he

was charged with inflicting serious bodily injury, but he believed the charge

was unjustified and conveyed that belief to counsel. Id. at 4-5. According

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to Appellant, counsel agreed and stated he would try to get the aggravated

assault charge dropped or reduced. Id. at 9. Counsel subsequently advised

Appellant that the Commonwealth refused to reduce or drop the aggravated

assault charge. Id. As a result of that conversation, Appellant pled guilty.

Id.

      At the evidentiary hearing, Appellant told the PCRA court that he did

not believe he could have been convicted of aggravated assault based on the

infliction of serious bodily injury because the victim only received three

stitches. Appellant also maintained that he was high on an illicit drug when

he stabbed the victim with a knife and did not have the requisite intent to

harm him for an attempt to cause serious bodily injury. The court countered

that voluntary intoxication was not a defense to the charge. Id. at 18.

      Appellant admitted that counsel was present when he completed the

written guilty plea colloquy; counsel answered his questions; he understood

the answers; and he was being truthful when he answered the questions.

Id. at 10.    He answered in the affirmative Question No. 9, “Do you

understand the nature of the charge or charges to which you are pleading

guilty?” and Question No. 10 “Has your lawyer explained to you the

elements of the criminal offense or offenses to which you are pleading

guilty?” Id. at 11. Appellant admitted committing the crimes to which he

was pleading guilty and agreed that his criminal conduct fit the legal

elements of the crimes charged. See Colloquy, Exhibit 1, Question No. 11.

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When questioned by the court orally at the time he entered his plea,

Appellant did not apprise the court that he did not understand the charges or

believe that the elements were not met. N.T., 5/26/15, at 13-14.

     Attorney Sidelnick testified that he was appointed by the court to

represent Appellant. He confirmed that he met with his client four or five

times.   During their first meeting prior to the preliminary hearing, he

reviewed the charges with Appellant, including the elements of aggravated

assault. Id. at 21. Counsel explained that the Commonwealth would either

have to prove that Appellant caused serious bodily injury or attempted to

cause serious bodily injury to sustain a conviction for aggravated assault.

Id. He defined serious bodily injury for Appellant and discussed an attempt

to cause serious bodily injury. Id. Later, Counsel provided his client with

discovery   and   reviewed    it   with   him,   specifically   discussing   the

Commonwealth’s differing proof requirements when proceeding under a

theory of attempted serious bodily injury rather than serious bodily injury.

He answered Appellant’s questions and Appellant appeared to understand

the responses provided. Id. at 22. Although they discussed proceeding to

trial, many of Appellant’s questions related to the plea offer.    Id. at 22-3.

According to plea counsel, Appellant told him that he wanted a plea offer of

three to ten years imprisonment. When counsel tried to obtain such a plea

offer, the Commonwealth refused due to Appellant’s juvenile record.

Counsel testified that he and Appellant had multiple discussions focused on

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amending the plea to attempted serious bodily injury as the offense gravity

score would then be a second-degree felony, but the Commonwealth was

not amenable. At that point, Appellant desired to take the negotiated plea.

Id. at 25.

      Counsel acknowledged that Appellant told him he had smoked K-2,

which is marijuana, prior to the stabbing. Although counsel did not have a

specific recollection of discussing the effect of Appellant’s voluntary

intoxication on the aggravated assault charge, he was certain that he would

have indicated that it was not a defense. Id. at 28.

      The transcript of the plea hearing confirms that the nature of the

aggravated assault charge was stated on the record in Appellant’s presence.

N.T., 12/19/13, at 3 (Appellant was charged with aggravated assault, an

“attempt to cause of intentionally, knowingly, or recklessly did cause bodily

injury to another under circumstances manifesting extreme indifference to

the value of human life.   He stabbed a person with a knife.”).    Appellant

responded in the affirmative to the court’s inquiry whether he understood

the charges, and confirmed that he was pleading guilty because he

committed those offenses.       Appellant also advised the court that he had

discussed his case fully with counsel, that he was satisfied with his

representation, and that he understood all of the questions on the written

guilty plea form. Id. at 5-6.




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      The PCRA court found that Appellant and counsel discussed the

elements of aggravated assault, the factual basis for the charge, possible

defenses, what constituted serious bodily injury and the difference between

causing serious bodily injury and attempting to cause serious bodily injury.

Trial Court Opinion, 6/29/15, at 8.    Appellant admittedly told his attorney

that he was under the influence of an illicit substance when he stabbed the

victim. The court credited counsel’s testimony that he would have advised

Appellant that voluntary intoxication was not a defense. Id. Both the oral

and written colloquies provided that Appellant understood the nature of the

offenses and that counsel tendered effective representation. Id. The PCRA

court concluded that Appellant’s underlying claim that his guilty plea was

involuntarily and unknowingly entered had no merit.

      We have no basis to disturb the PCRA court’s findings as they are

amply supported by the record. Based on those findings and the written and

oral colloquies, it is apparent that Appellant understood the elements of the

aggravated assault charge to which he was pleading guilty, appreciated that

he had a right to a jury trial, and agreed to the terms of the negotiated plea.

His plea was knowingly and voluntarily entered.

      Appellant also argues that plea counsel was ineffective for failing to

obtain the victim’s medical records, which would have confirmed that serious

bodily injury could not be proven.     Since Appellant did not advance this

argument in his amended PCRA petition or explore it at the evidentiary

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hearing, this argument is waived. See Pa.R.A.P. 302(a) (“Issues not raised

in the lower court are waived and cannot be raised for the first time on

appeal.”).

      For all of the foregoing reasons, no relief is due.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/4/2016




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