J-S58027-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 RICHARD ALLAN RYAN                       :
                                          :
                    Appellant             :   No. 475 WDA 2018

                 Appeal from the PCRA Order March 5, 2018
   In the Court of Common Pleas of Allegheny County Criminal Division at
                     No(s): CP-02-CR-0012696-2015


BEFORE: OLSON, J., MURRAY, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY MURRAY, J.:                         FILED OCTOBER 09, 2018

      Richard Allan Ryan (Appellant) appeals from the order dismissing his

petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A.

§§ 9541-9546. We affirm.

      The PCRA court summarized the relevant factual and procedural history

of this case as follows:

      [Appellant] was charged with Rape of a Child,[FN]1 Involuntary
      Deviate Sexual Intercourse with a Child,[FN]2 Aggravated Indecent
      Assault,[FN]3 Statutory Sexual Assault,[FN]4 Unlawful Contact with a
      Minor,[FN]5 Incest of a Minor Under 13,[FN]6 Indecent Assault of a
      Person Under 13,[FN]7 Endangering the Welfare of a Child,[FN]8
      Indecent Exposure[FN]9 and Corruption of Minors[FN]10 in relation to
      a series of incidents between [Appellant] and [the victim] when
      [the victim] was between the ages of eight (8) and 11. He
      appeared before this Court on April 27, 2016, and pled guilty to
      Rape of a Child, IDSI with a Child, Aggravated Indecent Assault,
      Incest of a Minor and Endangering the Welfare of a Child and the
      remaining charges were withdrawn. Pursuant to the agreement,
      he was immediately sentenced to a term of imprisonment of seven
      (7) to 15 years with a subsequent term of probation of five (5)
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     years. Following a hearing, [Appellant] was found to be a Sexually
     Violent Predator. No Post-Sentence Motions were filed and no
     direct appeal was taken.

           [FN]1   18 Pa.C.S.A. §3121(c)

           [FN]2   18 Pa.C.S.A. §3123(b)

           [FN]3   18 Pa.C.S.A. §3125(b)

           [FN]4   18 Pa.C.S.A. §3122.1(b)

           [FN]5   18 Pa.C.S.A. §6318(a)(1)

           [FN]6   18 Pa.C.S.A. §4302(b)(1)

           [FN]7   18 Pa.C.S.A. §3126(a)(7)

           [FN]8   18 Pa.C.S.A. §4304(a)

           [FN]9   18 Pa.C.S.A. §3127(a)

           [FN]10   18 Pa.C.S.A. §6301(a)(1)

     No further action was taken until May 10, 2017, when [Appellant]
     filed a pro se Post Conviction Relief Act Petition.       Rachel
     Santoriella, Esquire, was appointed to represent [Appellant], but
     she later filed a Turner “No-Merit” Letter and sought[,] and was
     granted[,] permission to withdraw. After giving the appropriate
     notice of its intent to do so, this Court dismissed the Petition
     without a hearing. Scott Coffey, Esquire, was appointed to
     represent [Appellant] on appeal and this appeal followed.

PCRA Court Opinion, 7/9/18, at 1-2.

     Appellant presents six issues for our review (reordered for ease of

discussion):

     1. APPELLANT WAS DENIED PRETRIAL DISCOVERY/DISCLOSURE
        MATERIALS[ ], WAS NOT INFORMED OF THE ACCUSATIONS
        AGAINST HIM, AND THEREFORE HE COULD MAKE NO
        INFORMED DECISION REGARDING HIS PLEA, WHICH WAS
        UNKNOWING, INVOLUNTARY AND UNINTELLIGENTLY MADE.

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      2. APPELLANT WAS DENIED FUNDAMENTAL FAIRNESS AND
         CONSTITUTIONAL PROTECTIONS BEFORE AND AT TRIAL TIME.

      3. TRIAL COUNSEL ESSENTIALLY ABANDONED APPELLANT AND
         FAILED TO SUBPOENA MATERIAL AND EXPERT WITNESSES,
         AND FOR FAILING TO GET A PRIVATE INVESTIGATOR
         APPOINTED.

      4. DID THE TRIAL COURT ERR IN DENYING APPELLANT’S PCRA
         PETITION SINCE THE DISMISSAL WAS A MISCARRIAGE OF
         JUSTICE SINCE NO EVIDENTIARY HEARING WAS HELD AND
         APPELLANT WAS NOT PERMITTED TO FILE HIS OWN BRIEF
         SINCE APPELLANT WAS ABANDONED BY PCRA COUNSEL?

      5. APPELLANT    WAS  A   VICTIM  OF   PROSECUTORIAL
         MISCONDUCT/SELECTIVE PROSECUTION AND AN INDUCED
         GUILTY PLEA.

      6. APPELLANT’S  SENTENCE   WAS   ILLEGAL   SINCE  THE
         SENTENCING   COURT   LACKED    CONSTITUTIONAL   OR
         STATUTORY POWER TO IMPOSED [SIC] IT, AND THEREFORE
         THE TRIAL COURT HAD NO JURISDICTION TO IMPOSE [HIS]
         SENTENCE.

Appellant’s Brief at 3-4.

      “In reviewing the denial of PCRA relief, we examine whether the PCRA

court’s determination is supported by the record and free of legal error.”

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

citations omitted).   “To be entitled to PCRA relief, [an] appellant must

establish, by a preponderance of the evidence, his conviction or sentence

resulted from one or more of the enumerated errors in 42 Pa.C.S.[A.] §

9543(a)(2)[.]” Id.

      Appellant’s first three issues are related, and thus, we address them

together. Appellant’s issues challenge plea counsel’s effectiveness as it relates


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to his guilty plea.   In deciding ineffective assistance of counsel claims, we

begin with the presumption that counsel rendered effective assistance.

Commonwealth v. Bomar, 104 A.3d 1179, 1188 (Pa. 2014). To overcome

that presumption, the petitioner must establish: “(1) the underlying claim has

arguable merit; (2) no reasonable basis existed for counsel’s action or failure

to act; and (3) the petitioner suffered prejudice as a result of counsel’s error,

with prejudice measured by whether there is a reasonable probability that the

result of the proceeding would have been different.” Id. (citation omitted).

To demonstrate prejudice in an ineffective assistance of counsel claim, “the

petitioner must show that there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been

different.” Commonwealth v. King, 57 A.3d 607, 613 (Pa. 2012). If the

petitioner fails to prove any of these prongs, the claim is subject to dismissal.

Bomar, 104 A.3d at 1188.

      “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.

Moser, 921 A.2d 526, 531 (Pa.Super.2007) (quotations and citation omitted).

“Where the defendant enters his plea on the advice of counsel, the

voluntariness of the plea depends on whether counsel’s advice was within the

range of competence demanded of attorneys in criminal cases.”                Id.

(quotations and citations omitted).       “Thus, to establish prejudice, the

defendant must show that there is a reasonable probability that, but for

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counsel’s errors, he would not have pleaded guilty and would have insisted on

going to trial.” Commonwealth v. Barndt, 74 A.3d 185, 192 (Pa. Super.

2013) (quotations and citations omitted). “The reasonable probability test is

not a stringent one; it merely refers to a probability sufficient to undermine

confidence in the outcome.” Id. (quotations and citations omitted).

      With respect to valid guilty pleas, this Court has explained:

      A valid guilty plea must be knowingly, voluntarily and intelligently
      entered. The Pennsylvania Rules of Criminal Procedure mandate
      that pleas be taken in open court, and require the court to conduct
      an on-the-record colloquy to ascertain whether a defendant is
      aware of his rights and the consequences of his plea. Specifically,
      the court must affirmatively demonstrate the defendant
      understands: (1) the nature of the charges to which he is pleading
      guilty; (2) the factual basis for the plea; (3) his right to trial by
      jury; (4) the presumption of innocence; (5) the permissible ranges
      of sentences and fines possible; and (6) that the court is not
      bound by the terms of the agreement unless the court accepts the
      agreement. This Court will evaluate the adequacy of the plea
      colloquy and the voluntariness of the resulting plea by examining
      the totality of the circumstances surrounding the entry of that
      plea.

Commonwealth v. Kelley, 136 A.3d 1007, 1013 (Pa. Super. 2016) (citations

omitted).

      Appellant argues that his guilty plea was not knowing, voluntary, and

intelligent due to plea counsel’s ineffectiveness. Appellant contends that he

had no choice but to plead guilty because plea counsel did not pursue

witnesses who would have supported Appellant’s version of the events or

obtain discovery materials so Appellant could fully understand the allegations

against him and properly prepare for trial. Appellant’s Brief at 13-14.


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      Based upon our review of the certified record, including the transcript of

Appellant’s guilty plea hearing and his written colloquy, we conclude that

Appellant’s guilty plea was knowing, voluntary, and intelligent. The record

reflects that the trial court informed Appellant of the nature of the charges to

which he pled guilty, the factual basis for the plea, the sentences, and that it

was accepting the negotiated sentence. N.T. 2/6/13, at 5-24; Written Guilty

Plea Colloquy, 4/27/16, at 2-11.

      Importantly, during the oral colloquy, Appellant indicated that he was

satisfied with counsel’s representation. Id. at 7. Appellant acknowledged that

he had decided to exchange his rights in exchange for a favorable sentence of

7 to 15 years of incarceration for a rape of a child charge where the victim

unequivocally identified Appellant as the perpetrator. Id. Appellant stated

that he understood the ramifications of pleading guilty and that he was

entering his plea on his own volition. Id. He cannot now contradict these

statements.

      By arguing that plea counsel’s ineffectiveness forced him into pleading

guilty, Appellant implies that his responses to the plea colloquies were

untruthful. A defendant who elects to plead guilty, however, “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.” Commonwealth v. Turetsky, 925 A.2d 876,

881 (Pa. Super. 2007) (quotations and citations omitted).           “A criminal


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defendant who elects to plead guilty has a duty to answer questions

truthfully.” Id. Accordingly, because the record supports the PCRA court’s

determination that Appellant’s guilty plea was knowing, voluntary, and

intelligent, we conclude that the PCRA court did not err in dismissing

Appellant’s claims.

      Next, Appellant argues that the PCRA court erred in dismissing his case

without a hearing. This Court has explained:

            [T]he right to an evidentiary hearing on a post-
            conviction petition is not absolute. It is within the
            PCRA court’s discretion to decline to hold a hearing if
            the petitioner’s claim is patently frivolous and has no
            support either in the record or other evidence. It is
            the responsibility of the reviewing court on appeal to
            examine each issue raised in the PCRA petition in light
            of the record certified before it in order to determine
            if the PCRA court erred in its determination that there
            were no genuine issues of material fact in controversy
            and in denying relief without conducting an
            evidentiary hearing.

Commonwealth v. Walls, 993 A.2d 289, 295 (Pa. Super. 2010) (internal

citations and brackets omitted). If the PCRA court “can determine without an

evidentiary hearing that one of the prongs cannot be met, then no purpose

would be advanced by holding an evidentiary hearing.” Commonwealth v.

Jones, 942 A.2d 903, 906 (Pa. Super. 2008).

      Here, Appellant argues that an evidentiary hearing was necessary for

him to present evidence proving his claim that his guilty plea was not knowing,

voluntary, and intelligent. As discussed above, the evidence Appellant would

have presented in support of this claim would have been testimony that

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directly contradicted the statements he made during his guilty plea colloquy.

This is not an avenue for relief. There were no genuine issues of material fact

in controversy and no purpose would have been served by holding a hearing.

Accordingly, the PCRA court did not err in denying Appellant’s petition without

a hearing.

      For his fifth issue, Appellant baldly asserts that he “was a victim of

prosecutorial misconduct.” Appellant’s Brief at 12. Appellant, however, has

failed to provide any legal argument on this issue beyond a citation pertaining

to the standard of review for the denial of a PCRA petition. Id. at 13. It is

well settled that the argument portion of an appellate brief must be developed

with pertinent discussion of the issue, which includes citations to relevant

authority.     See Pa.R.A.P. 2119(a) (requiring that an appellant develop an

argument with citation to and analysis of relevant legal authority); see also

Commonwealth v. Genovese, 675 A.2d 331, 334 (Pa. Super. 1996) (stating

that “[t]he argument portion of an appellate brief must be developed with a

pertinent discussion of the point which includes citations to the relevant

authority”).

      In Commonwealth v. B.D.G., 959 A.2d 362 (Pa. Super. 2008), a panel

of this Court offered the following relevant observation regarding the proper

formation of the argument portion of an appellate brief:

      In an appellate brief, parties must provide an argument as to each
      question, which should include a discussion and citation of
      pertinent authorities. This Court is neither obliged, nor even
      particularly equipped, to develop an argument for a party. To do

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      so places the Court in the conflicting roles of advocate and neutral
      arbiter. When an appellant fails to develop his issue in an
      argument and fails to cite any legal authority, the issue is waived.

Id. at 371-72 (internal citations omitted). Thus, failure to cite case law or

other legal authority in support of an argument results in waiver of the claim.

      Instantly, Appellant’s argument pertaining to this issue contains no

citations to relevant legal authority beyond the cursory legal citation at the

end of his argument. Appellant’s Brief at 13. Rather, the argument portion

of Appellant’s brief consists of broad statements and allegations but no

analysis with relevant law. This failure to develop a legal argument precludes

appellate review. We conclude that this issue is waived.

      In his final claim, Appellant contends that the PCRA court erred “since

Appellant’s   sentence   was   illegal    since   the   sentencing   court   lacked

constitutional or statutory power to imposed [sic] it, and therefore the trial

court had no jurisdiction to impose [the] sentence.” Appellant’s Brief at 14.

Appellant essentially argues that, although the trial court did not impose a

statutory maximum sentence upon him, “Appellant felt that [his prison

sentence of 7 to 15 years for rape of a child] was certainly excessive.” Id.

      Appellant attempts to couch his challenge to the discretionary aspects

of his sentence as a legality of sentence issue. It is settled that the PCRA does

not provide an appellant relief for discretionary aspects of sentence claims.

See Commonwealth v. Fowler, 930 A.2d 586, 593 (Pa. Super. 2007)

(“Challenges to the discretionary aspects of sentencing are not cognizable


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under the PCRA.”) (citations omitted), appeal denied, 944 A.2d 756 (Pa.

2008); see also Commonwealth v. Jordan, 772 A.2d 1011, 1016 (Pa.

Super. 2001) (observing that “[t]his Court’s case law has stated that a

challenge to the discretionary aspects of sentencing is a matter that must be

reviewed in the context of a direct appeal and cannot be reviewed in the

context of the PCRA.”); see also 42 Pa.C.S.A. § 9543(a)(2).        Therefore,

Appellant’s claim does not merit relief because it is not cognizable under the

PCRA.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/9/2018




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