J-S02031-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA              :   IN THE SUPERIOR COURT OF
                                           :         PENNSYLVANIA
                                           :
              v.                           :
                                           :
                                           :
 CLAUDE RAINAL SALOIS,                     :
                                           :
                    Appellant              :        No. 1155 MDA 2019

             Appeal from the PCRA Order Entered June 27, 2019
                in the Court of Common Pleas of York County
            Criminal Division at No(s): CP-67-CR-0007383-2017

BEFORE: BENDER, P.J.E., KING, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                       FILED FEBRUARY 27, 2020

      Claude Rainal Salois (“Salois”) appeals, pro se, from the Order denying

his Petition for relief filed pursuant to the Post Conviction Relief Act (“PCRA”).

See 42 Pa.C.S.A. §§ 9541-9546. We affirm.

      The PCRA court summarized the relevant factual history as follows:

            On October 13, 2017, Patrolman Justin Seibert [(“Patrolman
      Seibert”)] of [the] West Manheim Township Police Department
      was contacted by Detective Eric Beyer [(“Detective Beyer”)] of the
      Adams County District Attorney’s Office. Detective Beyer notified
      Patrolman Seibert that he had been conducting an investigation[,]
      and as a result of this investigation[,] had found an IP address
      that was sharing child pornography. Detective Beyer obtained a
      subpoena for the [i]nternet [s]ervice [p]rovider for the IP address,
      Comcast Cable Communications. On October 23, 2017, Detective
      Beyer received the business records from Comcast[,] which
      indicated that the IP address that was sharing the child
      pornography belonged to [] Salois of Hanover, Pennsylvania.

            On October 24, 2017, Patrolman Seibert got and served a
      search warrant for Salois[’s] home at 43 Mist Court, Hanover,
      Pennsylvania.    Officers searched the home and found
      pornographic materials of underage females.       Salois was
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        Mirandized[1] and asked about the child pornography.           He
        admitted to printing the pictures and told the [o]fficers that he
        had child pornography on thumb drives. Further investigation
        confirmed that the computer that [o]fficers found in Salois[’s]
        house was the same one that shared the child pornography that
        Detective Beyer [had] found.

PCRA Court Opinion, 8/8/19, at 1-2 (footnote added).

        On April 10, 2018, Salois entered a guilty plea to possession of child

pornography, dissemination of child pornography, and criminal use of a

communication facility.2, 3 The trial court subsequently sentenced Salois to a

negotiated aggregate sentence of 6 to 12 years in prison. Salois did not file

a direct appeal.

        Salois, pro se, filed the instant, timely PCRA Petition on December 14,

2018.      The PCRA court appointed Salois counsel.4         On March 29, 2019,

following multiple continuances, PCRA counsel filed a Motion to Withdraw as

Salois’s    counsel,   and    an   accompanying   no-merit    letter   pursuant   to

Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth

v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). By an Order entered

____________________________________________


1   Miranda v. Arizona, 384 U.S. 436 (1966).

2   18 Pa.C.S.A. §§ 6312(c) and (d), 7512.

3 The trial court deferred sentencing for the completion of an assessment by
the Sexual Offenders Assessment Board, after which Salois was determined
not to be a sexually violent predator.

4 Salois, while represented by appointed counsel, subsequently filed several
pro se Motions and Amendments to his PCRA Petition.




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on June 27, 2019, the PCRA court granted PCRA counsel’s Motion to Withdraw

from representation, and denied Salois’s PCRA Petition.5 Salois filed a timely

pro se Notice of Appeal and a court-ordered Pa.R.A.P. 1925(b) Concise

Statement of errors complained of on appeal.

       Salois raises the following issues for our review:

       I. Is [] Salois[’s] sentence rendered illegal based upon the failure
       of the trial court to merge the charged offenses for sentencing
       purposes?

       II. Has [c]ounsel … rendered ineffective assistance of counsel
       when [] Salois entered an unknowing, unintelligent, and
       involuntary plea of guilty[,] where the elements of the offenses
       charged were not explained to [] Salois by counsel, nor the trial
       court?

       III. Has [c]ounsel … rendered ineffective assistance of counsel by
       failing to obtain health evaluation reports and/or a psychiatric
       evaluation of [] Salois, where [counsel] was aware that [] Salois
       received treatment which should have been included in a
       sentencing memorandum then presented at the time of
       sentencing[, and] to request a more appropriate sentence?

Brief for Appellant at 5.

             On appeal from the denial of PCRA relief, our standard of
       review calls for us to determine whether the ruling of the PCRA
       court is supported by the record and free of legal error. The PCRA
____________________________________________


5 At the scheduled PCRA hearing on April 1, 2019, the PCRA court indicated
that it had not seen counsel’s no-merit letter until that day, and PCRA counsel
stated that he was unable to deliver the no-merit letter to Salois at the prison
“due to new procedures,” but that he had reviewed the content with Salois
prior to the hearing. The PCRA court therefore continued the hearing, and
issued Notice pursuant to Pa.R.Crim.P. 907. On April 23, 2019, the PCRA
court granted counsel’s Motion to withdraw and denied Salois’s Petition. The
PCRA court later vacated its April 23, 2019 Order, acknowledging that Salois
had filed an Objection to the court’s Rule 907 Notice, but its filing was delayed
for reasons beyond Salois’s control.

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      court’s findings will not be disturbed unless there is no support for
      the findings in the certified record. The PCRA court’s factual
      determinations are entitled to deference, but its legal
      determinations are subject to our plenary review.

Commonwealth v. Nero, 58 A.3d 802, 805 (Pa. Super. 2012) (citations and

quotation marks omitted).

      In his first claim, Salois contends that the trial court imposed an illegal

sentence, because his convictions of dissemination of child pornography and

criminal use of a communication facility should have merged at sentencing.

See Brief for Appellant at 9-16.

      Because Salois’s claim challenges the legality of his sentence, “our

standard of review is de novo and our scope of review is plenary.” Nero, 58

A.3d at 806 (citation and quotation marks omitted).

      Section 9765 of the Sentencing Code addresses merger as follows:

      No crimes shall merge for sentencing purposes unless the crimes
      arise from a single criminal act and all of the statutory elements
      of one offense are included in the statutory elements of the other
      offense. Where crimes merge for sentencing purposes, the court
      may sentence the defendant only on the higher graded offense.

42 Pa.C.S.A. § 9765. “The statute’s mandate is clear. It prohibits merger

unless two distinct facts are present: 1) the crimes arise from a single criminal

act; and 2) all of the statutory elements of one of the offenses are included in

the statutory elements of the other.” Commonwealth v. Baldwin, 985 A.2d

830, 833 (Pa. 2009).




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      Dissemination of child pornography is defined at 18 Pa.C.S.A. § 6312,

which pertains to sexual abuse of children, and which provides, in relevant

part, as follows:

      § 6312. Sexual abuse of children

                                      ***

         (c) Dissemination of photographs, video tapes,
         computer depictions and films.--Any person who
         knowingly sells, distributes, delivers, disseminates,
         transfers, displays or exhibits to others, or who possesses
         for the purpose of sale, distribution, delivery, dissemination,
         transfer, display or exhibition to others, any book,
         magazine, pamphlet, slide, photograph, film, videotape,
         computer depiction or other material depicting a child under
         the age of 18 years engaging in a prohibited sexual act or
         in the simulation of such act commits an offense.

18 Pa.C.S.A. § 6312(c).

      Regarding criminal use of a communication facility, Section 7512

provides that “[a] person commits a felony of the third degree if that person

uses a communication facility to commit, cause or facilitate the commission

or the attempt thereof of any crime which constitutes a felony….”              Id.

§ 7512(a).

      A comparison of Section 6312(c) with Section 7512(a) evinces no

overlap or sharing of any elements of the crimes, much less all of the

elements, as required by Section 9765 of the Sentencing Code.              Because

merger of Salois’s sentences would have been improper, he is not entitled to

relief on this claim.




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       In his second claim, Salois argues that his plea counsel6 was ineffective

because he was “compelled to plead guilty based upon animosity that existed

between himself and counsel.” Brief for Appellant at 21. Salois also claims

that he entered an unknowing, unintelligent, and involuntary guilty plea. Id.

at 18-21. Specifically, Salois asserts that he was never questioned regarding

his understanding of the nature of the charges to which he pled guilty, and

that he was not informed of the presumption of innocence. Id. at 18, 19.7

              It is well-established that counsel is presumed to have
       provided effective representation unless the PCRA petition pleads
       and proves all of the following: (1) the underlying legal claim is of
       arguable merit; (2) counsel’s action or inaction lacked any
       objectively reasonable basis designed to effectuate his client’s
       interest; and (3) prejudice, to the effect that there was a
       reasonable probability of a different outcome if not for counsel’s
       error. The PCRA court may deny an ineffectiveness claim if the
       petitioner’s evidence fails to meet a single one of these prongs.
       Moreover, a PCRA petitioner bears the burden of demonstrating
       counsel’s ineffectiveness.




____________________________________________


6 We observe that Salois specifically names his appointed PCRA counsel rather
than his plea counsel. However, from the substance of his argument, it is
clear that Salois intends to challenge the effectiveness of plea counsel.

7 In his Concise Statement, Salois raises the underlying challenge to the
validity of his guilty plea, rather than the derivative claim of ineffective
assistance of counsel. However, because the claim as stated in his Concise
Statement asserts that counsel did not properly explain to him the elements
of the crimes charged, and because an ineffectiveness claim requires us to
consider the merits of the underlying claim, we will address this issue. See
generally Pa.R.A.P. 2116(a) (explaining that “[n]o question will be
considered unless it is stated in the statement of questions involved or is fairly
suggested thereby.” (emphasis added)).


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Commonwealth v. Franklin, 990 A.2d 795, 797 (Pa. Super. 2010) (citations

omitted).

            A criminal defendant has the right to effective counsel
      during a plea process as well as during a trial. 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 an involuntary or unknowing plea.

Commonwealth v. Hickman, 799 A.2d 136, 141 (Pa. Super. 2002)

(citations omitted); see also Commonwealth v. Morrison, 878 A.2d 102,

105 (Pa. Super. 2005) (stating that “the defendant must show that counsel’s

deficient stewardship resulted in a manifest injustice … by facilitating entry of

an unknowing, involuntary, or unintelligent plea.” (citations omitted)).

Further, regarding the prejudice prong, the appellant “must show that it is

reasonably probable that, but for counsel’s errors, he would not have pleaded

guilty and would have gone to trial.” Commonwealth v. Patterson, 143

A.3d 394, 398 (Pa. Super. 2016) (citation omitted).

      As this Court has explained, “[o]ur law presumes that a defendant who

enters a guilty plea was aware of what he was doing. He bears the burden of

proving otherwise.”   Commonwealth v. Pollard, 382 A.2d 517, 523 (Pa.

Super. 2003) (citations omitted). Additionally,

      [t]he longstanding rule of Pennsylvania law is that a defendant may
      not challenge his guilty plea by asserting that he lied while under
      oath, even if he avers that counsel induced the lies. A person who
      elects to plead guilty is bound by the statements he makes in open
      court[,] while under oath[,] and he may not later assert grounds
      for withdrawing the plea which contradict the statements he made
      at his plea colloquy.


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Id. (citations omitted).

      Here, the trial court conducted an oral guilty plea colloquy, during which

Salois acknowledged that he understood the nature of the charges to which

he was pleading guilty, and that his attorney had explained to him what the

Commonwealth would be required to prove in order to convict him.          N.T.,

4/10/18, at 3. Salois admitted to knowingly possessing child pornography on

his computer, disseminating child pornography, and using a computer and

internet device to commit the crimes.       Id. at 3-4.    Additionally, Salois

specifically affirmed that he understood his right to a jury trial and the

presumption of innocence, and the trial court advised Salois that the judge is

not bound by the terms of the plea agreement. Id. at 4-8. Salois also stated

that he had enough time to discuss the plea agreement with his plea counsel.

Id. at 8, 10. Salois may not now contradict this testimony. See Pollard,

supra. In addition to conducting an oral colloquy, Salois completed a written

guilty plea colloquy with his attorney, wherein he indicated his understanding

of his rights, as well as the elements of the crimes for which he was entering

a plea. See Written Guilty Plea Colloquy, 4/10/18.

      Based upon the foregoing, we conclude that Salois entered a knowing,

voluntary, and intelligent guilty plea, and our review of the record reveals no

way in which Salois was misled or misinformed.       See Commonwealth v.

Reid, 117 A.3d 777, 783 (Pa. Super. 2015) (stating that “a plea of guilty will

not be deemed invalid if the circumstances surrounding the entry of the plea

disclose that the defendant had a full understanding of the nature and

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consequences of his plea[,] and that he knowingly and voluntarily decided to

enter the plea.”) (citation omitted); Pollard, 832 A.2d at 524 (stating that

“[o]ur law does not require that a defendant be totally pleased with the

outcome of his decision to plead guilty, only that his decision be voluntary,

knowing and intelligent.”). Thus, Salois’s challenge to the validity of his guilty

plea lacks merit, as does his derivative claim that plea counsel was ineffective.

        In his third claim, Salois asserts that his plea counsel 8 was ineffective

for failing to obtain, as mitigating evidence, mental health reports or a

psychiatric evaluation, despite being aware that Salois had received mental

health treatment. Brief for Appellant at 22-24.

        Salois’s claim challenges the discretionary aspects of his negotiated

sentence.     “Where the plea agreement contains a negotiated sentence[,]

which is accepted and imposed by the sentencing court, there is no authority

to permit a challenge to the discretionary aspects of that sentence.”

Commonwealth v. Reichle, 589 A.2d 1140, 1141 (Pa. Super. 1991).

Because Salois entered a negotiated guilty plea, we cannot review his final

claim.     See Reid, 117 A.3d at 784 (stating that a challenge to the

discretionary aspects of a negotiated sentence is unreviewable).




____________________________________________


8   Salois again mistakenly named his PCRA counsel.

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     Order affirmed.

     P.J.E. Bender joins the memorandum.

     Judge King concurs in the result.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/27/2020




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