J-S34026-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                        Appellee

                   v.

DUKE ROLAND PSORAS

                        Appellant                    No. 2096 MDA 2013


          Appeal from the PCRA Order entered October 21, 2013
         In the Court of Common Pleas of the 41st Judicial District
                           Juniata County Branch
             Criminal Division at No: CP-34-CR-0000078-2010


BEFORE: PANELLA, STABILE, and JENKINS, JJ.

MEMORANDUM BY STABILE, J.:                             FILED JULY 25, 2016

     Appellant, Duke Roland Psoras, appeals from the order the Court of

Common Pleas of Perry/Juniata Counties entered on October 21, 2013,

denying his petition pursuant to the Post-Conviction Relief Act (“PCRA”), 42

Pa.C.S.A. §§ 9541-46. Upon review, we affirm.

     The trial court summarized the relevant background as follows:

     [A]fter a trial on February 16, 2011, a jury found Appellant guilty
     of three hundred ninety-seven (397) counts of [s]exual [a]buse
     of [c]hildren. On May 17, 2011, the [c]ourt sentenced him to a
     total of five (5) to fifteen (15) years[’] incarceration in a [s]tate
     [c]orrectional [i]nstitution, plus seven (7) years[’] probation to
     run concurrent to his incarceration. However, on August 21,
     2012, the [c]ourt granted Appellant a new trial based upon his
     Post-Conviction Relief Act [p]etition, filed January 17, 2012,
     alleging ineffective assistance of counsel.       That same date,
     Appellant tendered nolo contendere pleas to four (4) counts of
     [s]exual [a]buse of [c]hildren, in violation of 18 Pa.C.S. §
     6312(d), felonies of the third degree. Immediately following
     Appellant’s plea, the court sentenced him to five (5) to ten (10)
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       months[’] incarceration in a [s]tate [c]orrectional [i]nstitution on
       each of the four (4) counts. The sentence for each count was to
       run consecutive to the others, making Appellant’s total sentence
       twenty (20) to forty (40) months. He received credit for time
       served[.]

Trial Court Opinion, 2/20/14 at 1.

       On September 20, 2012, Appellant filed a counseled direct appeal to

this Court, arguing his nolo contendere plea was unlawfully induced, and,

therefore, involuntarily entered, due to information discovered after the plea

and some misinformation provided at the time of the plea. See Statement

of Errors Complained of on Appeal, 10/22/12.1

       On October 22, 2012, while represented and while his direct appeal

was still pending, Appellant, pro se, filed a PCRA petition, seeking a new trial

based on “newly-discovered and existing, but newly-presented, factual

evidence.” PCRA Petition, 10/22/12, at 1. Subsequently, Appellant, pro se,

filed the following documents: (1) November 21, 2012: Application seeking

leave to file a supplement to his PCRA petition; (2) December 6, 2012:

Petition seeking appointment of new counsel; (3) January 17, 2013: Notice

to counsel (court-appointed) that he was being terminated; (4) March 11,

2013: First supplement to his PCRA petition, alleging ineffective assistance

of counsel (trial counsel and direct appeal counsel); (5) March 11, 2013:

Motion for bail; (6) May 29, 2013: Motion for appointment of new counsel;
____________________________________________


1
  The direct appeal was discontinued on January 29, 2013, upon application
of Appellant’s counsel. See Commonwealth v. Psoras, 80 MDA 2013.



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(7) June 24, 2013: Motion to withdraw plea; (8) August 5, 2013: Second

supplement to his PCRA petition, seeking to vacate his illegal sentence; (9)

August 5, 2013: Third supplement to his PCRA petition, alleging lack of

subject matter jurisdiction; and (10) September 9, 2013: Motion for return

of property.    After conducting a hearing,2 the PCRA court denied all relief

sought by Appellant “for the reasons stated on the record.”3       See PCRA

Court Order, 10/24/13. This appeal followed.

       On appeal, Appellant, through his counsel, raises one issue for our

review, namely whether his nolo contendere plea was unlawfully induced.

Upon review, we conclude Appellant is not entitled to relief.

       “[A]n appellate court reviews the PCRA court’s findings of fact to

determine whether they are supported by the record, and reviews its

conclusions of law to determine whether they are free from legal error.”

Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014).

       Before entertaining the merits of the appeal, we must determine

whether he is eligible for PCRA relief. The Commonwealth argues Appellant

is not eligible for relief pursuant 42 Pa.C.S.A. § 9543(a)(1)(i) because he is

no longer “serving” his sentence. We agree.

____________________________________________


2
 It appears Appellant was represented by Jeffrey Davis, Esq. at the hearing.
See PCRA Court Order, 10/24/13.
3
  The notes of testimony of the hearing are not part of the record forwarded
to this Court.



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      To be eligible for post-conviction relief,
      the petitioner must plead and prove by a preponderance of the
      evidence all of the following:

          (1) That the petitioner has been convicted of a crime under
          the laws of this Commonwealth and is at the time relief is
          granted:

              (i) currently serving a sentence of imprisonment, probation
              or parole for the crime;


42 Pa.C.S.A. § 9543(a)(1)(i).

      Appellant acknowledges that under the statute he is no longer eligible

for relief.   However, he argues that denial of relief on such basis would

amount to a violation of his procedural due process rights. Appellant relies

on Commonwealth v Turner, 80 A.3d 754 (Pa. 2013), for the proposition

that “due process rights are one of the few things which can offer relief from

the statutory restriction placed on the PCRA.” Appellant’s Brief at 16. We

disagree. Indeed, in Turner, the Supreme Court specifically addressed the

point raised by Appellant here, and rejected it.

      In Turner, the Supreme Court noted:

      Because individuals who are not serving a state sentence have
      no liberty interest in and therefore no due process right to
      collateral review of that sentence, the statutory limitation of
      collateral review to individuals serving a sentence of
      imprisonment, probation, or parole is consistent with the due
      process prerequisite of a protected liberty interest. 42 Pa.C.S.[ ]
      § 9543(a)(1)(i). Of course, the legislature was free to extend a
      statutory right of collateral review to individuals like [Turner]
      who had completed their sentence[s] and, had they done so,
      they would be constitutionally obligated to ensure that those
      rights were impacted only in accord with due process. However,
      the legislature did not do so. Rather, the General Assembly,
      through the PCRA, excluded from collateral review those

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      individuals who were no longer subject to a state sentence,
      thereby limiting the statutory right of collateral review to those
      whose liberty was constrained.

      The legislature was aware that the result of the custody or
      control requirement of Section 9543(a)(1)(i) would be that
      defendants with short sentences would not be eligible for
      collateral relief. Indeed, that was the apparent intent: to restrict
      collateral review to those who seek relief from a state sentence.
      The legislature’s exclusion from collateral relief of individuals
      whose liberty is no longer restrained is consistent with the
      eligibility requirements of habeas corpus review under the
      general state habeas corpus statute, 42 Pa.C.S. § 6501, et seq.

Turner, 80 A.3d at 766-67 (citations, quotations, quotation marks, and

footnotes omitted).

      In light of the foregoing, we conclude Appellant’s due process

challenge has no merit. Accordingly, because he fails to meet the eligibility

requirements under the PCRA, he is not entitled to relief.

      Appellant’s challenge, more than a facial attack on the PCRA statute, is

an as-applied challenge.    Appellant claims that he is not eligible for relief

under the PCRA because of delays in the disposition of this matter, mostly

attributable to the trial court’s failure to act promptly in appointing him

counsel and the pendency of the direct appeal.

      In Commonwealth v. Burkett, 5 A.3d 1260, 1276 (Pa. Super. 2010),

we analyzed a claim that conduct of the PCRA court, the Commonwealth,

and appellant’s appointed attorneys unreasonably delayed occurrence of his

PCRA hearing and disposition of his PCRA petition, thus violating his right to

due process. In doing so, we applied the test set forth in Barker v. Wingo,

407 U.S. 514 (1972).


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      Pursuant to Barker, the court first considers whether the delay
      itself is sufficient to trigger further inquiry. Second, the court
      must evaluate the reason for the delay. Thirdly, the court must
      ascertain the timeliness of the defendant’s assertion of his right;
      and lastly, the court must decide if there exists any resulting
      prejudice to the defendant.

Burkett, 5 A.3d at 1276.

      Here, it is undisputed that Appellant pro se filed the instant petition on

October 22, 2012, while his direct appeal was pending. It also is undisputed

that Appellant’s counsel (Ralph Germak, Esq.) withdrew and discontinued

the direct appeal on January 29, 2013. New counsel (Jeffrey Davis, Esq.)

was appointed to assist Appellant in the PCRA proceedings.              In the

meantime, appellant pro se filed multiple documents, including a motion to

withdraw plea, and three supplements to his PCRA petition. The PCRA court

denied the PCRA petition and the supplements on October 21, 2013. New

counsel (John H. McCullough, Esq.) was appointed for Appellant. This appeal

followed.

      It is undisputed that some delay occurred between the filing of the

PCRA petition and its disposition. It is, however, clear that the delay also is

attributable to Appellant’s multiple filings within a relatively short period of

time. In addition, while it is unclear from the record when Attorney Davis

was appointed, it would seem that some, if not all, of these filings were

improperly filed by Appellant pro se when he was represented. Finally, there

is no evidence of prejudice suffered by Appellant. “Prejudice in the context




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of the present case requires a showing of actual prejudice.” Burkett, 5 A.3d

at 1280. To this end, we noted:

      No Pennsylvania court has declared that delay in addressing a
      PCRA petition is prima facie sufficient to establish actual
      prejudice . . . . Although the excessive delay in this case should
      not be countenanced, it does not establish that [a]ppellant is
      automatically entitled to a new trial or discharge. Appellant still
      must be able to prove that the delay would have likely led to the
      outcome of his PCRA proceeding having been different.

Id.

      Here, Appellant essentially argues the guilty plea was unlawfully

induced.   In particular, Appellant suggests that the written colloquy was

confusing as to the nature of the plea he entered (nolo contendere), that he

was not “given an adequate explanation of a nolo contendere plea,”          and

that the oral colloquy conducted by the trial court was insufficient to

overcome the problems with the written colloquy. Appellant’s Brief at 20.

We disagree.

      In order for a guilty plea to be constitutionally valid, the guilty
      plea colloquy must affirmatively show that the defendant
      understood what the plea connoted and its consequences. This
      determination is to be made by examining the totality of the
      circumstances surrounding the entry of the plea. 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 consequences of his
      plea and that he knowingly and voluntarily decided to enter the
      plea.

      Our law presumes that a defendant who enters a guilty plea was
      aware of what he was doing. He bears the burden of proving
      otherwise. Where the record clearly demonstrates that a guilty
      plea colloquy was conducted, during which it became evident


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      that the defendant understood the nature of the charges against
      him, the voluntariness of the plea is established.

Commonwealth v. Rush, 909 A.2d 805, 808 (Pa. Super. 2006) (internal

quotation marks, citations and brackets omitted).

      Here, the PCRA court,

      through its own oral colloquy of Appellant and through defense
      counsel, found that Appellant entered nolo contendere pleas
      knowingly, intelligently, voluntarily, and understandingly.
      Specifically, Appellant indicated that he understood the elements
      of the charged crimes and what it would take to be found guilty
      of them. He also understood the factual basis for the plea.
      Appellant indicated that he understood his right to a trial by jury
      and that he is presumed innocent until found guilty. He was
      aware of the possible sentences and fines involved, as well as
      the consequences of his plea under Megan’s Law. Both defense
      counsel and the [c]ourt employed the terms “nolo contendere”
      or “no contest,” rather than “guilty” throughout the oral colloquy
      with Appellant. Finally, Appellant filled out a written [p]lea
      [a]greement, which indicated a plea of nolo contendere, on
      which Appellant indicated his understanding both that the [c]ourt
      was not bound to accept his plea agreement and that, if the
      [c]ourt rejected it, he could withdraw his plea. On the [p]lea
      [a]greement, Appellant also reiterated his understanding of his
      waiver of the aforementioned rights. As such, the [c]ourt found
      that Appellant entered his nolo contendere plea knowingly,
      intelligently, voluntarily, and understandingly.

Trial Court Opinion, 2/20/14, at 3-4 (citations to record omitted).

      Upon review, we agree with the trial court’s analysis and conclusions.

Because the delay is attributable, to some extent, to Appellant, and because

Appellant failed to show actual prejudice from the delay, we conclude

Appellant is not entitled to relief.

      Order affirmed.

      Judge Panella joins this memorandum.

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     Judge Jenkins concurs in the result.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/25/2016




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