J-S58005-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

DR. BARRY L. BENDER,

                            Appellant                 No. 674 WDA 2013


                    Appeal from the PCRA Order April 2, 2013
                  in the Court of Common Pleas of Blair County
               Criminal Division at No.: CP-07-CR-0000301-2002


BEFORE: GANTMAN, P.J., BENDER, P.J.E., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                                   FILED DECEMBER 08, 2014

        Appellant, Dr. Barry L. Bender, appeals from the court’s denial of his

counseled fifth amended version of his first petition filed pursuant to the

Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.

        The PCRA court summarized the procedural history of this case as

follows:

              On October 20, 2003, [Appellant] entered a guilty plea[ 1]
        before Judge Milliron of the Blair County Court of Common Pleas
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
  Appellant negotiated a guilty plea to two counts of involuntary deviate
sexual intercourse, one count of prescribing or dispensing medication outside
the bounds of accepted medical practice, one count of criminal conspiracy to
deliver a controlled substance, one count of corruption of minors, one count
of selling or furnishing liquor, and one count of criminal solicitation. See 18
Pa.C.S.A. § 3123(a)(7); 35 P.S. §§ 780-113(a)(14) and (30); 18 Pa.C.S.A.
§§ 6301(a)(1), 6310.1(a), and 902, respectively.
J-S58005-14


     pursuant to a plea agreement. The incarceration negotiated was
     agreed to be a term of [ten] to [twenty] years in a state
     correctional institution. A verbal colloquy of [Appellant] was
     conducted on October 20th including [Appellant] submitting an
     [eleven]-page written colloquy form in support of his plea and
     the plea agreement. By further agreement, sentencing was
     intended to be scheduled approximately [sixty] days from the
     date the plea was taken. Consistent with that understanding, a
     sentencing hearing was scheduled for December 12, 2003.
     However, in the interim on December 2, 2003, [Appellant]
     (having discharged Attorney Dickey almost immediately
     following the guilty plea proceeding) sought to withdraw his plea
     by petition filed through new counsel[,] Attorney Bryan Walk.
     The petition to withdraw his guilty plea was heard on December
     12, 2003, and denied by the [trial] [c]ourt which then imposed a
     sentence consistent with the plea agreement.          The [trial]
     [c]ourt’s decision to deny withdrawal of the guilty plea was
     appealed to the Superior Court of Pennsylvania[,] which Court
     on December 10, 2004, entered a [ten]-page memorandum
     opinion affirming the decision by the [trial court] to deny
     [Appellant’s] attempt to withdraw his plea of guilty. [(See
     Commonwealth v. Bender, 318 WDA 2004, unpublished
     memorandum at *5 (Pa. Super. filed Dec. 10, 2004).] The
     record was remanded to the [trial court] on December 30, 2005.
     The original PCRA petition was filed by [Appellant] pro se on
     March 17, 2006. As the record reflects, the PCRA petition has
     been amended [by counsel] on a number of occasions with the
     final amendment occurring on February 23, 2010.

(PCRA Court Opinion, 9/27/11, at 2-3).

     On March 5, 2011, the PCRA court held an argument related to the

scope of the PCRA hearing. The court, on September 27, 2011, issued an

order and opinion identifying only Appellant’s claims for bias of the trial

judge, and ineffectiveness of counsel in advising Appellant to enter a guilty

plea and waive a pre-sentence investigation (PSI) as those issues that

required a hearing; Appellant’s remaining challenges were denied.




                                    -2-
J-S58005-14



        On February 16, 2012, the PCRA court held a hearing on the claim of

ineffectiveness of counsel concerning the waiver of a PSI.2 The PCRA court,

on November 19, 2012, held a hearing on the claim of trial judge bias. On

April 2, 2013, the PCRA court issued an order and opinion denying the claim.

Appellant timely appealed on April 19, 2013.3 On November 13, 2013, this

Court remanded this case for the limited purpose of allowing newly

appointed counsel to review the petition in order to prepare Appellant’s

brief.4

        Appellant raises the following issues for our review:

        I.    Whether the trial court erred in finding the Appellant was
        in a proper state of mind when he entered his plea?

        II.   Whether the trial court erred in finding the [t]rial [j]udge
        did not have a bias against the Appellant based on the use of the
        Appellant in his judicial campaign ads?

        III. Whether the trial court erred in finding that Appellant’s
        prior counsel was not ineffective in failing to file a motion to
        withdraw guilty plea (on the basis that the Appellant was not in a
        proper state of mind at the time of the plea)?

____________________________________________


2
  The court issued an order and opinion on June 12, 2012 denying
Appellant’s claim.      Appellant has not appealed the PCRA court’s
determination on this issue.
3
  Pursuant to the court’s order, Appellant filed a timely Rule 1925(b)
statement on May 9, 2013. The court entered its Rule 1925(a) opinion on
June 19, 2013 relying on the reasons set forth in the September 27, 2011,
June 12, 2012, and April 2, 2013 opinions. See Pa.R.A.P. 1925.
4
    The court appointed current counsel on September 3, 2013.




                                           -3-
J-S58005-14


       IV.   Whether the trial court erred in finding that Appellant’s
       prior counsel was not ineffective in failing [to file] a post
       sentence motion regarding a sentence that did not conform to
       the plea agreement?

       V.    Whether the trial court erred in finding that [Appellant’s]
       prior counsel was not ineffective in failing to request a
       continuance when he was openly unprepared?

(Appellant’s Brief, at 4).5

       Our standard of review is well-settled:

              When reviewing the propriety of an order granting or
       denying PCRA relief, this Court is limited to determining whether
       the evidence of record supports the determination of the PCRA
       court and whether the ruling is free of legal error. Great
       deference is granted to the findings of the PCRA court, and these
       findings will not be disturbed unless they have no support in the
       certified record.

Commonwealth v. Rachak, 62 A.3d 389, 391 (Pa. Super. 2012), appeal

denied, 67 A.3d 796 (Pa. 2013) (citations omitted).

       A PCRA petitioner is eligible for relief if the claim is cognizable under

the PCRA.        See 42 Pa.C.S.A. § 9543.          Cognizable claims include

constitutional violations and ineffectiveness of counsel that undermine the

truth-determining process. See 42 Pa.C.S.A. § 9543(a)(2)(i) and (ii).

       In his first issue, Appellant claims that a violation of his due process

rights occurred when the trial court failed to find that he had a decreased

mental capacity at the time he entered his plea. (See Appellant’s Brief at

12-15). This issue is waived.
____________________________________________


5
 Appellant has reordered issues four and five in his argument. Therefore,
we will address his issues in the order he has argued them.



                                           -4-
J-S58005-14



      It is well-settled that:

      [a]n issue is previously litigated if the highest appellate court in
      which appellant could have had review as a matter of right has
      ruled on the merits of the issue. An issue is waived if appellant
      could have raised it but failed to do so before trial, at trial, . . .
      on appeal or in a prior state post-conviction proceeding.

Commonwealth v. Fears, 86 A.3d 795, 803-04 (Pa. 2014) (citations and

quotation marks omitted); see also 42 Pa.C.S.A. §§ 9543(a)(3) and 9544.

      Here, the record reflects that Appellant’s assertion that he was not in a

proper state of mind due to medication and poor health at the time he

entered his plea is not included in his direct appeal of the trial court’s denial

of his motion to withdraw his guilty plea.         (See Bender, supra at *5

(“Appellant presents one question for our review: Did the trial court err in

failing to grant Appellant’s motion to withdraw guilty plea filed prior to the

imposition of sentence when the Appellant demonstrated a fair and just

reason why he should be permitted to do so and the Commonwealth was not

substantially   prejudiced?”     (capitalization   removed))).       Accordingly,

Appellant’s first issue is waived. See Fears, supra at 803-04; 42 Pa.C.S.A.

§§ 9543(a)(3) and 9544.

      Moreover, his claim would not merit relief.

      A guilty plea is knowingly entered if the “defendant is aware of his

rights and the consequences of his plea.” Commonwealth v. Prendes, 97

A.3d 337, 352 (Pa. Super. 2014) (citation omitted); see also Pa.R.Crim.P.

590. Furthermore, it is well-settled that “a defendant who entered a guilty

plea [is presumed to be] aware of what he [is] doing, and the defendant

                                       -5-
J-S58005-14



bears the burden of proving otherwise.”     Prendes, supra at 352 (citation

omitted).

     Here, the PCRA court found that:

     . . . [upon review of] the transcripts of all of [the] proceedings[,]
     [t]here is nothing in any of them which supports (even remotely)
     the “after the fact” position that [Appellant] was actually
     incompetent in any particular. The complete absence of support
     is critical. . . . Reading the record, we find no support from the
     guilty plea proceeding itself or (perhaps even more importantly)
     from [Appellant’s] testimony almost two months later before
     [the trial] court on December 12, 2003, at the proceeding to
     withdraw his plea.

(PCRA Ct. Op., 9/27/11, at 12).

     Furthermore, the record reflects that Appellant repeatedly affirmed

that he was not impaired and understood the plea. (See Written Guilty Plea,

10/24/03, at 2-11; N.T. Guilty Plea Hearing, 10/20/03, at 7-13, 16-18).

     Accordingly, the record supports the PCRA court’s denial of relief on

this claim. See Prendes, supra at 352.

     In his second issue, Appellant claims that the trial court had a bias

against him based on the use of Appellant in his judicial campaign ads.

(See Appellant’s Brief, at 15-18). We disagree.

     It is well-settled that:

     . . . simply because a judge rules against a defendant does not
     establish any bias on the part of the judge against that
     defendant. If the appellate court determines that the party
     alleging judicial bias received a fair trial, then the allegation of
     judicial bias is not borne out. See Reilly v. SEPTA, 507 Pa.
     204, 489 A.2d 1291 (1985).




                                     -6-
J-S58005-14



Commonwealth v. Travaglia, 661 A.2d 352, 367 (Pa. 1995), cert. denied,

516 U.S. 1121 (1996).

      Here, Appellant argues that “[u]nder Canon 2 of the Code of Judicial

Conduct, the precept governing judicial conduct is the avoidance of not only

actual impropriety but also the appearance of impropriety.”         (Appellant’s

Brief, at 16) (citing Commonwealth v. Perry, 364 A.2d 312 (Pa. 1976)).

In further support of his argument, Appellant quotes Commonwealth v.

Darush, 459 A.2d 727, 732 (Pa. 1983) to claim that “[d]isqualification of a

judge is mandated whenever ‘a significant minority of the law community

could reasonably question the court’s impartiality.’” (Appellant’s Brief, at

16). Appellant’s argument is misguided.

      We note, “enforcement of the Code of Judicial Conduct is beyond the

jurisdiction of this Court.”   Commonwealth v. Kearney, 92 A.3d 51, 62

(Pa. Super. 2014), appeal denied, 385 MAL 2014, 386 MAL 2014 (Pa. filed

Sept. 30, 2014) (citing Reilly, supra at 1298).

      Furthermore, the cases Appellant cites are distinguishable.

      In Perry, supra, our Supreme Court determined that the trial judge’s

refusal to disqualify himself did not prejudice the appellant where the trial

judge knew the victim professionally and attended his funeral. See Perry,

supra at 317-18.

      In Darush, supra, despite finding no evidence of bias by the trial

judge, our Supreme Court remanded for resentencing in consideration of the

trial judge’s professed inability to admit or deny the appellant’s claim that,

                                     -7-
J-S58005-14



during the trial judge’s election campaign for judgeship, the appellant, who

openly opposed the campaign, made derogatory remarks to the trial judge’s

campaign manager that the trial judge may have overheard. See Darush,

supra at 732.

      Here, Appellant’s argument is not supported by any citation to

pertinent controlling authority. Accordingly, Appellant has failed to meet his

burden of proving “a significant minority of the law community could

reasonably question the court’s impartiality.”     Id.; see also Pa.R.A.P.

2119(a)-(c).

      Moreover, upon our independent review, the record reflects that:

            Judge Milliron did use [Appellant’s] case in his campaign
      for judge in 2005. However, [Judge Milliron] does not recall the
      nature of the advertisements but believes it was in print. He
      unsuccessfully attempted to locate his commercials and/or
      advertisements before the November 19, 2012, hearing.

                                 *    *    *

      Judge Milliron had no further involvement after he denied
      [Appellant’s] request to withdraw his guilty plea. He recused
      himself from consideration of the PCRA Petition filed by
      [Appellant].

             Judge Milliron denied having any bias or prejudice for or
      against [Appellant]. He had no thoughts of running for a full-
      term when he was presiding over [Appellant’s] case. Further, he
      testified that whatever was contained in his campaign material
      was factually accurate.

(PCRA Ct. Op., 4/02/13, at 3-4 (record citations omitted); see also N.T.

PCRA Hearing, 11/19/12, at 14-17, 21, 26-28).




                                     -8-
J-S58005-14



      Additionally, the PCRA court explained the basis for its decision as

follows:

             [Appellant’s] claim there was the appearance of
      impropriety during the progress of his case when Judge Milliron
      was presiding is totally groundless.       How Judge Milliron’s
      decision to run for a full term on the [b]ench in 2005 and the
      use of material in his political campaign referencing [Appellant]
      is evidence of impropriety or unfairness in the 2003 proceedings
      is beyond this [c]ourt’s understanding.

(PCRA Ct. Op. 4/02/13, at 6-7). Upon review, we agree and conclude that

the court’s determination that the trial judge did not have a bias against

Appellant is supported by the record.

      Accordingly, because Appellant has failed to establish that he did not

receive a fair trial, we conclude that the PCRA court properly found that the

trial judge did not have a bias against Appellant. See Travaglia, supra, at

367. Appellant’s second issue lacks merit.

      Appellant argues in his remaining three claims that he received

ineffective assistance of counsel.   (See Appellant’s Brief at 19-28).      We

disagree.

      It is well-settled that “[a] criminal defendant has the right to effective

counsel during a plea process as well as during trial.” Commonwealth v.

Rathfon, 899 A.2d 365, 369 (Pa. Super. 2006) (citation omitted). Counsel

is presumed effective, and an appellant bears the burden to prove otherwise.

See Commonwealth v. Bennett, 57 A.3d 1185, 1195 (Pa. 2012). A PCRA

petitioner must demonstrate that counsel’s performance was deficient and

that such deficiency prejudiced him. See Strickland v. Washington, 466

                                     -9-
J-S58005-14



U.S. 668, 687 (1984). Pennsylvania has further refined the Strickland test

into a three-prong inquiry.     An appellant must demonstrate that: (1) his

underlying claim is of arguable merit; (2) counsel had no reasonable

strategic basis for his action or inaction; and (3) the appellant suffered

actual prejudice as a result. See Commonwealth v. Pierce, 527 A.2d 973,

975 (Pa. 1987). A failure to satisfy any prong of the ineffective assistance of

counsel test will require rejection of the claim.    See Commonwealth v.

Spotz, 84 A.3d 294, 311 (Pa. 2014). Moreover, deference is given to the

PCRA court’s credibility determination if supported by the record.        See

Spotz, supra at 312-13.

      Where, as here, Appellant pleaded guilty, “claims of ineffectiveness in

connection with a guilty plea will provide a basis for relief only if the

ineffectiveness   caused   an    involuntary   or   unknowing   plea.”    See

Commonwealth v. McCauley, 797 A.2d 920, 922 (Pa. Super. 2001).

Furthermore, it is well-settled that, where the record shows that the trial

court conducted a thorough guilty plea colloquy and the defendant

understood his rights and the nature of the charges against him, the plea is

voluntary. See id. (rejecting challenge to plea agreement where trial court

conducted plea colloquy and defendant understood charges). We look to the

totality of the circumstances to determine whether the defendant understood

the nature and consequences of his plea. See id.

      A criminal defendant is bound by the statements he made during his

plea colloquy.    See Commonwealth v. Muhammad, 794 A.2d 378, 384

                                     - 10 -
J-S58005-14



(Pa. Super. 2002).       Thus, a defendant cannot assert grounds for

withdrawing the plea that contradicts statements made at that time.       See

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

denied, 764 A.2d 1068 (Pa. 2000). Further, “[t]he law does not require that

appellant be pleased with the outcome of his decision to enter a plea of

guilty: ‘All that is required is that [appellant’s] decision to plead guilty be

knowingly, voluntarily and intelligently made.’” Commonwealth v. Yager,

685 A.2d 1000, 1004 (Pa. Super. 1996) (en banc), appeal denied, 701 A.2d

577 (Pa. 1997) (citation omitted).

      In his third issue, Appellant claims that he received ineffective

assistance of counsel for counsel’s failure to file a motion to withdraw his

guilty plea on the basis that Appellant was not in a proper state of mind.

(See Appellant’s Brief, at 19).   Specifically, Appellant argues that counsel

failed to present testimony of his incapacity at the time he entered his guilty

plea and instead focused on whether the Commonwealth would be

prejudiced. (See id. at 19-22). We disagree.

      Our independent review of the record reveals that this Court

addressed the merits of Appellant’s motion to withdraw his guilty plea on

direct appeal. (See Bender, supra at *7, *9 (holding that “the assertion of

innocence may constitute a fair and just reason for the pre-sentence

withdrawal of the plea” but that “permitting withdrawal of the plea would

result in substantial prejudice to the Commonwealth.”)).      Appellant’s third

issue has not been previously litigated because it is framed in terms of

                                     - 11 -
J-S58005-14



ineffective assistance of counsel. See Commonwealth v. Martin, 5 A.3d

177, 185 (Pa. 2010), cert. denied, 131 S.Ct. 2960 (2011) (citing

Commonwealth v. Collins, 888 A.2d 564 (Pa. 2005)).

      Here, Appellant signed a written plea colloquy and engaged in an oral

colloquy with the trial court. (See Written Guilty Plea, 10/24/03, at 11; N.T.

Guilty Plea Hearing, 10/20/03, at 7-19). Appellant understood the charges

against him, the nature of his pleas, his rights, and what rights he was

giving up.   (See Written Guilty Plea, 10/24/03, at 1-11; N.T. Guilty Plea

Hearing, 10/20/03, at 8-19). Appellant did indicate that he had consumed

multiple prescription medications within forty-eight hours of completing the

written plea colloquy but they were “regular medications” and did not affect

his ability to understand his plea. (N.T. Guilty Plea Hearing, 10/20/03, at 8;

see also Written Guilty Plea, 10/24/03, at 3).

      Furthermore, the PCRA court found that the trial court observed, at

the December 12, 2003 hearing on Appellant’s motion to withdraw his plea,

that Appellant “clearly demonstrated his competence by far more than a

preponderance of the evidence.” (PCRA Ct. Op., 9/27/11, at 16).

      Therefore, we conclude that the PCRA court properly found that

Appellant failed to meet his burden of pleading and proving all three prongs

of the Pierce test for ineffective assistance of counsel and Appellant’s third

issue lacks merit.

      In his fourth issue, Appellant claims that he received ineffective

assistance of counsel because counsel was unprepared, was “standing in” for

                                    - 12 -
J-S58005-14



recently retained counsel, and argued that the Commonwealth would not

face substantial prejudice instead of “that [Appellant] could not have entered

a knowing, willing, [and] involuntary plea”; which resulted in a constructive

denial of counsel. (Appellant’s Brief, at 25). This issue is waived.

      “Issues not included in the [Rule 1925(b) statement] and/or not raised

in accordance with the provisions of this paragraph (b)(4) are waived.”

Pa.R.A.P. 1925 (b)(4)(vii); see also Commonwealth v. Arrington, 86

A.3d 831, 849 (Pa. 2014), cert. denied, 2014 WL 4387304 (U.S.).

      Here, Appellant’s claim that he was constructively denied counsel is

not included in his Rule 1925(b) statement.         (See Appellant’s Concise

Statement of Errors, 5/09/13, at 1-2).       Instead, he states that counsel

“fail[ed] to request a continuance request when he was openly unprepared.”

(Id. at 2). Accordingly, Appellant’s fourth issue is waived.     See Pa.R.A.P.

1925 (b)(4)(vii).

      Moreover, his claim would not merit relief.

      Here, the record reflects that counsel renewed the continuance request

at the start of the hearing, which the trial court denied. (See N.T. Petition

to Withdraw Guilty Plea/ Sentencing, 12/12/03, at 6). Counsel proceeded to

represent Appellant and the trial court “found neither [Appellant] nor his

witnesses . . . to be credible.” (Id. at 110; see also PCRA Ct. Op., 9/27/11,

at 20).

      Accordingly, the record supports the PCRA court’s denial of relief on

this claim.

                                    - 13 -
J-S58005-14



       In his final issue, Appellant claims that he received ineffective

assistance of counsel based on counsel’s failure to file a post sentence

motion objecting to the additional twenty-two years of probation as

inconsistent with the plea agreement. (See Appellant’s Brief, at 26-28). We

disagree.

       Here, the record reflects that Appellant’s plea agreement contains no

provisions regarding probation.      (See Written Guilty Plea, 10/24/03, at 1-

11).   Appellant understood that the trial court “within [its] discretion . . .

will[] add a period of probation that will be at the conclusion of whenever

you’re released from incarceration.” (N.T. Guilty Plea Hearing, 10/20/03, at

10; see id. at 4, 16). Counsel did not object to the imposition of probation

at the sentencing hearing.     (See N.T. Petition to Withdraw Guilty Plea/

Sentencing, 12/12/03, at 111-20).

       Because the record confirms that there was no agreement on

probation, counsel could not be ineffective for failure to object to the

imposition of a term of probation.

       Therefore, we conclude that the PCRA court properly found that

Appellant failed to meet his burden of pleading and proving all three prongs

of the Pierce test for ineffective assistance of counsel and Appellant’s final

issue lacks merit.

       Order affirmed.




                                      - 14 -
J-S58005-14


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/8/2014




                          - 15 -
