J-S09018-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                         Appellee

                    v.

LAWRENCE LEHEW,

                         Appellant                  No. 1008 WDA 2014


                 Appeal from the PCRA Order May 19, 2014
            In the Court of Common Pleas of Allegheny County
 Criminal Division at No(s): CP-02-CR-0002436-2009, CP-02-CR-0013790-
                                   2009


BEFORE: FORD ELLIOTT, P.J.E., BOWES, and ALLEN, JJ.

MEMORANDUM BY BOWES, J.:                           FILED MARCH 18, 2015

      Lawrence Lehew appeals from the May 19, 2014 order denying his

PCRA petition. We affirm.

      On May 20, 2010, Appellant pled guilty but mentally ill at two criminal

actions.   At number 2009-2436, the plea was entered as to charges of

involuntary deviate sexual intercourse (“IDSI”) of a child and corruption of a

minor based upon a November 2, 2008 event involving a two-year-old male.

At number 2009-13790, Appellant entered the plea to charges of rape of a

child, IDSI, sexual assault, and corruption of a minor for conduct occurring

June 2008 through November 2008. In the latter case, the victim was a six-

year-old girl.   In return for the guilty plea, Appellant was to receive a

negotiated sentence of ten to forty years imprisonment.

      The trial court ordered an assessment to determine if Appellant was a

sexually violent predator (“SVP”).   On October 20, 2010, Appellant filed a
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petition to withdraw his guilty plea.        The SVP hearing was conducted on

October 27, 2010. The record indicates that, as a result of the motion to

withdraw, there were further negotiations concerning Appellant’s sentence.

On October 27, 2010, Appellant tendered a plea of nolo contendere to the

same charges outlined above. In exchange, he was to receive a negotiated

sentence of ten to thirty years in jail.

      The factual basis for Appellant’s plea follows. During the period of his

criminal activities, June 2008 through November 2008, Appellant was

staying at the home of a friend, Ron, who lived in Pittsburgh. On November

2, 2008, Appellant and Ron were drinking when Appellant went to the

basement,     where    Ron’s     two-year-old   grandson   was   alone.     Shortly

thereafter,   Ron     followed   Appellant   downstairs    and   caught   Appellant

performing oral sex on the child. Ron yelled at Appellant, who apologized

and said that there was something wrong with him. On November 4, 2008,

Appellant was arrested on a parole violation. During the booking process,

Appellant said that he had been caught performing oral sex on a two-year-

old boy.    Police called Ron, who acknowledged that he was aware of the

assault and that it happened in his house.          Appellant was then formally

interviewed by police, and he reiterated that he had performed IDSI on the

toddler.

      Ron also had a six-year-old granddaughter residing in his home. On

August 18, 2009, she was interviewed at the Children’s Advocacy Center

located at Children’s Hospital in Pittsburgh.      She told the interviewer that

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she understood the difference between the truth and a lie as well as fact

from fiction.   The six-year-old victim reported that she “was sleeping at

night and the defendant would come into her room and take her downstairs

in the living room and put her on the long couch[.]” N.T., 10/27/10, at 9.

The victim continued that Appellant would then “touch her front private.

[The victim] explained that she meant her vagina by that private.” Id. The

interviewer asked the victim what Appellant used to touch her vagina, and

the victim responded that Appellant “put his private inside of my private.”

Id. The victim also said that “defendant put his mouth on her privates and

put his fingers inside her front private.” Id.

      After Appellant tendered his nolo contendere plea, Dr. Cathy L. Clover

testified at the October 27, 2010 proceeding.      She was a psychologist

appointed by the Sexual Offender Assessment Board (“SOAB”) to perform

Megan’s Law evaluations.        She opined that Appellant suffered from

pedophilia and met the definition of an SVP. In rendering her opinion, Dr.

Clover relied, in part, upon statements that Appellant made to his probation

officer “that he had been previously involved in sexual behavior with his own

children.” Id. at 14.

      On November 17, 2010, the court imposed a negotiated sentence of

ten to thirty years, and, at that time, Appellant withdrew the October 20,

2010 motion to withdraw the plea of guilty but mentally ill.      See N.T.,

Sentencing, 11/17/10, at 2.     After Appellant was adjudicated an SVP, he

filed a direct appeal. We affirmed the judgment of sentence on August 21,

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2012, and our Supreme Court denied review on March 13, 2013.

Commonwealth v. Lehew, 60 A.3d 578 (Pa.Super. 2012), appeal denied,

63 A.3d 775 (Pa. 2013). On appeal, we rejected Appellant’s claim that the

trial court erred in determining that Appellant was an SVP “where the basis

of the determination turned on hearsay, there was no clear and convincing

evidence that he met the statutory factors, exhibited predatory or violent

behavior, is likely to reoffend, or suffered from a mental abnormality?” Id.

(unpublished memorandum at 3).

     On January 10, 2014, Appellant filed a pro se PCRA petition averring

that prior counsel should have filed a motion to suppress his statement to

his probation officer because he made it while he was intoxicated on drugs

and alcohol.   Appellant also averred that his nolo contendere plea was

unknowing and involuntarily entered since he was under the influence of

drugs administered to alleviate his psychological problems and since he did

not understand the plea proceedings due to his mental condition. Finally, he

averred ineffective assistance of plea counsel for failing to file an appeal.

Robert S. Carey, Jr., Esquire, was appointed, and Mr. Carey then filed a no-

merit letter and petition to withdraw pursuant to Commonwealth v.

Turner, 544 A.2d 927 (Pa. 1988) and Commonwealth v. Finley, 550 A.2d

213 (Pa.Super. 1988) (en banc).

      Mr. Carey noted that the issue concerning reliance on Appellant’s

statements to his probation officer during the SVP hearing was addressed

and rejected on direct appeal and that prior counsel had filed a direct

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appeal, where claims of ineffective assistance of counsel could not be raised.

Mr. Carey further outlined that the record and Appellant’s representations

during the nolo contendere plea colloquy contradicted Appellant’s averments

that his medications and mental condition prevented him from tendering a

knowing and voluntary nolo contendere plea.

      On April 25, 2014, the PCRA court issued notice of its intent to dismiss

the PCRA petition without a hearing, as required by Pa.R.Crim.P. 907.       It

indicated that its independent review confirmed that the issues raised in the

PCRA petition were meritless and outlined the rationale for that conclusion.

The PCRA court then granted Mr. Carey’s petition to withdraw.

      Appellant responded to the court’s intent to dismiss the PCRA petition

without a hearing. He argued that Mr. Carey conducted inadequate review

of this matter since he did not obtain Appellant’s mental health records,

which Appellant maintained would have proven that he was incapable of

entering a knowing and voluntary plea due to his mental condition and his

ingestion of psychotropic medication.   Appellant also claimed that his plea

was “coerced out of fear” and that he did not “understand what was going

on.” Answer to Notice, 5/13/14, at 1. Finally, he requested an evidentiary

hearing.

      The court then dismissed the PCRA petition on May 19, 2014, and, in

that order, indicated that the “defendant is not entitled to have appointed

counsel represent him in this matter.”      Order of Court, 5/19/14, at 1.

Despite this correct recitation of the law applicable to appointment of

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counsel, the PCRA court, in response to Appellant’s pro se notice of appeal,

appointed Timothy J. Lyon, Esquire, for purposes of litigating this appeal. It

did not order the filing of a Pa.R.A.P. 1925(b) statement. Mr. Lyon filed an

advocate’s brief raising the following issue on appeal:

       I. Whether remand for further fact finding and possibly an
       evidentiary hearing is required where the PCRA court erred in
       denying [Appellant’s] pro se PCRA petition, which raised a
       potentially meritorious issue, after (i) receiving PCRA counsel's
       inadequate “no merit” letter and (ii) failing to sufficiently review
       the record itself.

Appellant’s brief at 4.

       Initially, we observe that the allegations on appeal are that Mr. Carey

conducted an inadequate review regarding Appellant’s cognitive ability to

enter a knowing plea and that Appellant is entitled to a hearing. Both issues

were presented in Appellant’s pro se response to the Pa.R.Crim.P. 907 notice

and therefore are preserved.          Commonwealth v. Rykard, 55 A.3d 1177

(Pa.Super. 2012). For purposes of appellate review, we “determine whether

the PCRA court's rulings are supported by the record and are free of legal

error. . . . If supported by the record, the PCRA court's credibility

determinations and factual findings are binding on this Court; however, we

apply a de novo standard of review to the PCRA court's legal conclusions.”

Commonwealth v. Bardo, 105 A.3d 678, 685 (Pa. 2014).1                Appellant’s
____________________________________________


1
   The aspects of Bardo outlining the standard of review and ineffective-
assistance-of-counsel test commanded a majority of our Supreme Court.




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averment thus is that his plea was unknowing and involuntary due to plea

counsel’s ineffectiveness in failing to recognize Appellant’s lack of capacity to

enter a nolo contendere plea, and that Mr. Carey conducted an inadequate

review of Appellant’s mental health records.

              Counsel is presumed effective, and the petitioner bears the
       burden of proving otherwise. Commonwealth v. Roney, –––
       Pa. ––––, 79 A.3d 595, 604 (2013). To prevail on an
       ineffectiveness claim, the petitioner must plead and prove, by a
       preponderance of the evidence, the Sixth Amendment
       performance and prejudice standard set forth in Strickland v.
       Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674
       (1984). This Court has divided the performance component of
       Strickland into two sub-parts dealing with arguable merit and
       reasonable strategy. Commonwealth v. Baumhammers, –––
       Pa. ––––, 92 A.3d 708, 719 (2014). Thus, to prevail on an
       ineffectiveness claim, the petitioner must show: that the
       underlying legal claim has arguable merit; that counsel had no
       reasonable basis for his or her action or omission; and that the
       petitioner suffered prejudice as a result. Id. (citing
       Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973, 975–76
       (1987)).

Id. at 684.      There are additional standards applicable when a lawyer’s

ineffectiveness relates to entry of a defendant’s guilty plea.2     Specifically,

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. Where the
       defendant enters his plea on the advice of counsel, the
       voluntariness of the plea depends on whether counsel's advice
____________________________________________


2
  “It is well established that a plea of nolo contendere is treated as a guilty
plea in terms of its effect upon a given case.” Commonwealth v. Lippert,
85 A.3d 1095, 1100 n3. (Pa.Super. 2014).



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       was within the range of competence demanded of attorneys in
       criminal cases.

           Thus, to establish prejudice, the defendant must show that
       there is a reasonable probability that, but for counsel's errors, he
       would not have pleaded guilty and would have insisted on going
       to trial. The reasonable probability test is not a stringent one; it
       merely refers to a probability sufficient to undermine confidence
       in the outcome.

Commonwealth v. Lippert, 85 A.3d 1095, 1100 (Pa.Super. 2014).

       In maintaining that he lacked the mental capacity to enter a knowing

and voluntary guilty plea, Appellant relies upon the following facts: 1) on

November 25, 2009, he was declared severely mentally disabled; 2) he was

committed to Torrance State Hospital for seven months; and 3) he originally

tendered a plea of guilty but mentally ill.3     He claims that PCRA counsel

conducted an inadequate review of his mental capacity to enter the October

27, 2010 plea in that counsel did not obtain any of his medical records. We

____________________________________________


3
   Appellant suggests that the May 20, 2010 plea of guilty but mentally ill was
withdrawn based upon the fact that it was unknowingly and involuntarily
entered. The record belies this suggestion. The discussion at the October
27, 2010 proceeding indicates the following. After entry of the plea of guilty
but mentally ill and while he was being assessed by the SOAB, Appellant
filed a pre-sentence motion to withdraw the plea. There were further
negotiations, and the Commonwealth agreed to reduce the maximum
negotiated sentence in exchange for tender of a nolo contendere plea to the
same charges. Before there was any ruling on it by the trial court, Appellant
withdrew the motion regarding the May 20, 2010 plea, and there was no
determination that he lacked the mental capacity to enter it. We note that,
since the motion to withdraw was filed before sentencing, the prevailing case
law virtually compelled that it be granted. See Commonwealth v.
Carrasquillo, 78 A.3d 1120 (Pa.Super. 2013) (en banc), appeal granted, 86
A.3d 830 (Pa. 2014); Commonwealth v. Gordy, 73 A.3d 620 (Pa.Super.
2013); Commonwealth v. Unangst, 71 A.3d 1017 (Pa.Super. 2013).



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concur with the PCRA court’s factual assessment that there is no genuine

issue of material fact in that the record demonstrates that Appellant entered

a knowing and voluntary nolo contendere plea, that he had the mental

acuity to enter that plea, and that he was not under the influence of drugs

that affected his ability to tender a knowing and voluntary plea.

      Appellant was committed to Torrance State Hospital (“Torrance”) for

sixty days on October 1, 2009.     On November 25, 2009, the commitment

was continued for another ninety days.      Order of Court, 11/25/09, at 9.

Appellant was released from Torrance in May 2010.           N.T. Guilty Plea,

5/20/10, at 9. Appellant did not enter the plea at issue until October 27,

2010, five months after his release from Torrance.

      The same judge who ordered Appellant’s October 1, 2009 commitment

presided on May 20, 2010, when the guilty but mentally ill plea was

tendered, as well as on October 27, 2010, when the plea now challenged on

appeal was entered.      Additionally, Appellant’s counsel, Michelle Collins,

Esquire, entered her appearance on September 2, 2009. She was aware of

the incompetency determination and of Appellant’s diagnoses. Id.         Ms.

Collins represented Appellant during the contested no lo contendere plea.

N.T., 10/27/10, at 1.

      Our review of the October 27, 2010 transcript establishes the

following. Appellant understood the nature of the proceedings and was not

under the influence of drugs that affected his ability to understand. At the

inception of the proceedings, the plea court asked Appellant, “Are you

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clearheaded today?”      N.T., 10/27/10, at 4.     Appellant responded, “Yes, I

am.”    Id.   Appellant also responded affirmatively when asked if he was

aware   of    his   negotiated   sentence   and   was   satisfied   with   counsel’s

representation.

       Next, the court inquired, “Other than what [Appellant’s counsel]

renegotiated on your behalf, sir, which you just heard stated in open court

by [the assistant district attorney] and confirmed by [Appellant’s counsel],

has anybody threatened or promised you anything to plead guilty?” Id. at

5. Appellant stated, “No, Your Honor.” Id. When the court again queried,

“No one is threatening or promising you, other than what you say on the

record, to plead no contest?”      Id. Appellant appropriately said, “Correct.”

Id.

       Appellant then was asked whether he read and understood the written

plea colloquy regarding entry of the nolo contendere plea. He nodded, was

told to answer verbally, and did so with a “Yes.” Id. Appellant reported that

he understood each question on the form and answered each one honestly.

In that aspect of the colloquy, Appellant stated that, by pleading nolo

contendere, he understood he was giving up the right to present a defense,

which could include “mental infirmity, or insanity.” Nolo Contendere

Explanation of Defendant’s Rights, 10/27/10, at ¶ 26.               He responded

affirmatively when asked if he had “discussed with your attorney why these

defenses are not available in your case?” Id.           On that form, Appellant

represented that no one forced him to enter the plea and that he was doing

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it of his own free will. Id. at ¶¶ 53, 54.       Finally, Appellant answered

negatively when asked if he was “presently taking any medication which

might affect your thinking or your free will?” Id. at 65.

      At the oral colloquy, Appellant was questioned about whether defense

counsel was “available in the event you ha[d] any questions.”            N.T.,

10/27/10, at 6.    Appellant appropriately and cogently answered, “Always

available to me.”     Id.    Appellant indicated his satisfaction with her

representation.   Appellant’s counsel was asked whether she believed that

Appellant understood the elements of the crimes, the penalties that could be

imposed individually and collectively, and whether Appellant was “otherwise

making a knowing, intelligent, and voluntary informed decision to plead no

contest?”    Id. at 7.    Counsel responded, “I do.”        Id.   Counsel also

represented that she had discussed with Appellant the legal meaning of the

particulars of entry of the nolo contendere plea in simple English.

      The plea court then asked counsel, not Appellant, whether she thought

Appellant understood matters.     Appellant jumped in and said, “I do” and

then said, “Yes,” when the court asked if his answer was accurate. Id. at 7.

The factual basis for the plea was entered on the record, and plea counsel

said that she had no corrections to the summarized evidence against

Appellant.   At that point, the plea court asked Appellant whether he was

entering the guilty plea since he was not “disputing the evidence the

Commonwealth would have against you or its legal sufficiency.” Id. at 10.

Appellant answered, “That’s correct, Your Honor.” Id. at 10.

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      We have observed: “Competence to plead guilty requires a finding that

the defendant comprehends the crime for which he stands accused, is able

to cooperate with his counsel in forming a rational defense, and has a

rational and factual understanding of the proceedings against him.”

Commonwealth       v.     Willis,   68    A.3d    997,     1002    (Pa.Super.     2013).

Appellant’s   responses    as   well     as   those   of    plea   counsel      establish

unequivocally that, after his treatment at a state hospital for a mental

disability, Appellant was able to understand the crimes, cooperate with

counsel in forming a reasonable defense, and had a rational and factual

understanding of the proceedings against him. His answers to all questions

were appropriate and revealed that he understood the proceedings.

      Plea counsel, knowing of Appellant’s treatment, confirmed that

Appellant was able to tender a knowing and understanding plea. The plea

court, which was aware of Appellant’s mental health history, assiduously

ascertained that Appellant had indeed regained his competency. Appellant

also entered a plea of guilty but mentally ill, then asked to withdraw it prior

to sentencing. He was able to negotiate a better sentence as a result of his

pre-sentence withdrawal request.         These activities also demonstrated that

Appellant was able to cooperate with counsel in defending this case.

      Any mental health records from Torrance would have related to

Appellant’s mental state before he regained competency. Indeed, the very

fact that Appellant was discharged from Torrance demonstrates that he

regained his competency. Thus, the records from his mental treatment at

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Torrance were not pertinent to his mental state when he entered his plea,

and PCRA counsel was not ineffective for failing to review them. Appellant

also avers he was under the influence of psychotropic drugs that interfered

with his ability to understand the October 27, 2010 proceeding.          That

averment is refuted by Appellant’s representations at the no lo contendere

plea that the drugs, which he admittedly was taking, did not affect his

mental ability to comprehend the proceedings. It likewise is contradicted by

Appellant’s cogent and appropriate response to each question posed on

October 27, 2010.

     It is a general principle of law in this Commonwealth that, when a

defendant makes statements at a plea colloquy, the defendant is bound by

those statements. Commonwealth v. Timchak, 69 A.3d 765, 774

(Pa.Super.   2013).    Appellant   represented   that   he   was   competent,

understood the proceedings, and answered the written colloquy truthfully.

In that written colloquy, Appellant indicated that he was not taking medicine

that would affect his understanding and that he was entering the plea of his

own free will. Appellant stated at the plea colloquy that he was tendering a

nolo contendere plea due to the sufficiency of the Commonwealth’s proof

that he committed the offenses in question.

     Every answer that Appellant proffered at the plea colloquy supported

his representations regarding his ability to understand the information

disseminated to him during the plea process and his competency when the

no lo contendere plea was entered. We thus concur with Mr. Carey and the

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PCRA court that, after a review of the record, there is no genuine issue of

material fact that Appellant’s mental condition and medicines did not

compromise the knowing and intelligent nature of the nolo contendere plea

and that Appellant was competent to enter that plea.

     In   seeking    an   evidentiary   hearing,   Appellant   relies   upon

Commonwealth v. Turetsky, 925 A.2d 876 (Pa.Super. 2007).            Therein,

the defendant was denied PCRA relief without a hearing. He pled guilty to

various sex offenses and contended in his PCRA petition that plea counsel

rendered ineffective assistance in failing to explore whether he was

competent to enter the plea. The defendant’s PCRA petition revealed that

plea counsel knew that the defendant was receiving psychological counseling

and treatment, was under prescription medication for those issues, was a

suicide risk, and was considered disabled.     The defendant averred that

counsel never investigated the information about his mental disabilities and

medicines and did not tell the plea court about them.          Counsel also

permitted the defendant to give false answers on his written plea colloquy,

and those answers indicated that the defendant was not under mental health

treatment and had not taken any medication during the preceding week.

     We concluded that the records submitted by the defendant with his

PCRA petition created a genuine issue of fact as to the defendant’s

competence to enter the plea, and we remanded for an evidentiary hearing.

We also held that the defendant was not bound by the answers in his written


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plea colloquy since the answers were demonstrably false, a fact that was

acknowledged by the PCRA court.

      The present case bears no resemblance to Turetsky. The plea court

was well aware of Appellant’s mental issues.      Appellant had been treated

and released from Torrance five months before he tendered his no lo

contendere plea. The answers to the written guilty plea colloquy were not

demonstrably false. Appellant was asked whether any medications he was

currently taking affected his ability to comprehend the proceeding rather

than if he had taken medication at all.

      The plea court was careful to ensure that Appellant was competent and

capable of understanding the proceedings. It specifically asked counsel at

the plea proceeding regarding the matter and plea counsel indicated that

Appellant was competent.      Appellant’s responses at the plea proceeding

confirmed counsel’s competency assessment, and the record unequivocally

establishes that Appellant understood the crimes of which he was accused,

was capable of rationally consulting with his lawyers about defenses, and

had rational and factual understanding of the proceedings against him.

      Given this assessment, it is clear that Appellant was not entitled to an

evidentiary hearing.   Pa.R.Crim.P. 907(2), provides, “[a] petition for post-

conviction collateral relief may be granted without a hearing when the

petition and answer show that there is no genuine issue concerning any

material fact and that the defendant is entitled to relief as a matter of law.”


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We have thus observed that “there is no absolute right to an evidentiary

hearing on a PCRA petition, and if the PCRA court can determine from the

record that no genuine issues of material fact exist, then a hearing is not

necessary.” Commonwealth v. Springer, 961 A.2d 1262, 1264 (Pa.Super.

2008) (citation omitted). As the record supports the PCRA court’s conclusion

that there is no genuine issue of material fact as to the knowing and

voluntary nature of Appellant’s nolo contendere plea, we affirm its denial of

the PCRA petition without a hearing.

     Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/18/2015




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