J-S71039-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                      v.

MICHAEL CHESTNUT

                               Appellant               No. 410 EDA 2016


                 Appeal from the PCRA Order January 29, 2016
     in the Court of Common Pleas of Philadelphia County Criminal Division
                       at No(s): CP-51-CR-0002512-2009

BEFORE: BOWES, PANELLA, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                    FILED NOVEMBER 04, 2016

        Appellant, Michael Chestnut, appeals from the order entered in the

Philadelphia County Court of Common Pleas denying his first timely Post

Conviction Relief Act1 (“PCRA”) petition without a hearing.2        Appellant

contends that the PCRA court erred by failing to grant an evidentiary hearing

prior to dismissing his petition because his mental health and medication use

at the time of his nolo contendere plea constituted a disputed issue of

material fact.    We affirm.

        We glean the relevant facts from the PCRA court opinion and the

certified record.   On January 9, 2009, Appellant assaulted J.J., an eleven

year-old minor.     Appellant entered a negotiated nolo contendere plea on

*
    Former Justice specially assigned to the Superior Court.
1
    42 Pa.C.S. §§ 9541-9546.
2
    We note that the Commonwealth did not file a brief.
J-S71039-16


February 3, 2011, to the charges of false imprisonment, unlawful contact

with a minor, corruption of minors, terroristic threats, simple assault, and

harassment. Sentencing was delayed for the completion of a pre-sentence

investigation report, a mental health evaluation, and a Sexual Offenders

Assessment Board evaluation.      Thereafter, on February 29, 2012, the trial

court conducted a Megan’s Law hearing and found Appellant to be a sexually

violent predator.    That same day, the court sentenced Appellant to an

aggregate term of ten to twenty years’ imprisonment.

        Appellant filed a timely direct appeal and this Court affirmed his

judgment of sentence on December 21, 2012.                 Commonwealth v.

Chestnut, 990 EDA 2012 (Pa. Super. Dec. 21, 2012) (unpublished

memorandum).        Appellant’s petition for allocatur was denied on July 2,

2013.     On July 18, 2013, Appellant timely filed a pro se PCRA petition.

Appointed PCRA counsel ultimately filed an amended petition on July 27,

2014. On December 4, 2015, the PCRA court entered an order stating its

intent to dismiss Appellant’s petition without a hearing pursuant to

Pa.R.Crim.P. 907.    The court dismissed the petition on January 29, 2016,

and the instant timely appeal followed.

        On appeal, Appellant raises the following issue for review:

          Did the Appellant raise substantial issues of material fact in
          his PCRA petition that the [PCRA court] should have
          granted discovery and a psychiatric examination and have
          held an evidentiary hearing before making a decision on
          the petition?



                                      -2-
J-S71039-16


Appellant’s Brief at 7.

      Appellant specifically argues that his mental illness and use of

psychiatric medication, at the time of his nolo contendere plea, rendered him

incapable of entering a knowing, intelligent, and voluntary plea. Therefore,

Appellant avers his trial counsel was ineffective for failing to ensure his plea

was “voluntary and knowing.” Appellant’s Brief at 10. Appellant contends

that his claims constituted an issue of material fact necessitating an

evidentiary hearing. We conclude that no relief is due.

      We begin by noting our standard of review:

         [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. The scope of
         review is limited to the findings of the PCRA court and the
         evidence of record, viewed in the light most favorable to
         the prevailing party at the trial level.

Commonwealth v. Charleston, 94 A.3d 1012, 1019 (Pa. Super.), appeal

denied, 104 A.3d 523 (Pa. 2014) (citation omitted).

      Regarding Appellant’s request for an evidentiary hearing we note:

         [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.



                                      -3-
J-S71039-16


Commonwealth v. Miller, 102 A.3d 988, 992 (Pa. Super. 2014) (citation

omitted).

      Further, it is axiomatic that claims which have been previously litigated

are not cognizable under the PCRA. 42 Pa.C.S. § 9543(a)(3). As to claims

of ineffectiveness, it is well settled that

         [c]ounsel is presumed effective, and to rebut that
         presumption, the PCRA petitioner must demonstrate that
         counsel’s performance was deficient and that such
         deficiency prejudiced him.        In Pennsylvania, we have
         refined the Strickland [v. Washington, 466 U.S. 668
         (1984)] performance and prejudice test into a three-part
         inquiry. Thus, to prove counsel ineffective, the petitioner
         must show that: (1) his underlying claim is of arguable
         merit; (2) counsel had no reasonable basis for his action or
         inaction; and (3) the petitioner suffered actual prejudice as
         a result. If a petitioner fails to prove any of these prongs,
         his claim fails.

Charleston, 94 A.3d at 1019 (some citations omitted).

      After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable Linda

Carpenter, we conclude Appellant’s issue merits no relief. The trial court’s

opinion comprehensively discusses and properly disposes of the question

presented.    See Trial Ct. Op. at 2-8 (finding that because this Court, on

direct appeal, concluded that Appellant’s nolo contendere plea was entered

knowingly, intelligently, and voluntarily after a lengthy colloquy, Appellant’s

contentions that trial counsel was ineffective for failing to ensure Appellant’s

plea was properly entered and that an evidentiary hearing was necessary to




                                        -4-
J-S71039-16


establish such a claim, lacked merit). Accordingly, we affirm on the basis of

the trial court’s opinion.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/4/2016




                                    -5-
J-S71039-16




              -6-
                                                                            Circulated 10/06/2016 03:16 PM




            IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY
                       TRIAL DIVISION - CRIMINAL SECTION




    COMMONWEAL TH OF PENNSYLVANIA

               v.
    MICHAEL CHESTNUT




                                          OPINION

        This Opinion is written in support of th is court's January 29, 2016 dismissal of

 Michael Chestnut's PCRA petition.



PROCEDURAL HISTORY

        On February 3, 2011, petitioner Michael Chestnut ("Chestnut") voluntarily,

intelligently, and knowingly entered a nolo contendere plea to the charges of False

Imprisonment (F2), Unlawful Contact With a Minor (F3), Corruption of Minors (CMOM)

(M1), Terroristic Threats (M1), Simple Assault (M1), and Harassment (S) on bill of

information CP-51-CR-0002512-2009. Following the plea, sentencing was deferred for

the completion of a Pre-Sentence Investigation Report, a Mental Health Evaluation, and

a   Sexual Offenders Assessment Board Evaluation. On February 29, 2012, th is court

conducted a Megan's Law Hearing and determined Chestnut to be a sexually violent

predator.   Following the hearing, this court accepted the parties' recommended,
      negotiated sentence and sentenced Chestnut to an aggregate period of 10-20 years of

      incarceration in a state facility with credit for time served.1

                On March 8, 2010, Chestnut filed a notice of appeal to the Superior Court of

      Pennsylvania and the Court affirmed his convictions and judgment                   of sentence on

      December 21, 2012.          Chestnut   petitioned    for a/locatur to the Supreme           Court of

      Pennsylvania, which the Court denied on July 2, 2013. On July 18, 2013, Chestnut filed

     the instant PCRA petition.        PCRA counsel was appointed             and, on July 27, 2014,

     counsel filed an Amended PCRA Petition.              On October 19, 2015, the Commonwealth

     filed a Motion to Dismiss and the matter was first listed before this Court for decision on

     December 4, 2015.       On December 4, 2015, following a review of the record, this Court

     sent Chestnut a 907 Notice, pursuant to Pa.R.Crim.P. 907(1).             On December 28, 2015,

     Chestnut filed a Motion to Modify and Reduce Sentence. which this Court reviewed as a

    response to the 907 Notice.        On January 29, 2016, this court dismissed the PCRA

    petition.




    DISCUSSION

           The standard applied when reviewing an order dismissing                 a PCRA petition is

    whether the determination of the PCRA court is supported by the record evidence and is

    free of legal error.2   The PCRA court's factual determinations         are entitled to deference,




1
  Chestnut was sentenced to 2.5-5 years of incarceration on the CMOM (M1) charge, 5-1 O years of
incarceration on the False Imprisonment (F2) charge to run consecutively to the CMOM sentence, and
2.5- 5 years of incarceration on the Unlawful Contact With a Minor (F3) charge to run consecutively to the
False Imprisonment sentence. He received no further penalty on the Terroristic Threats (M1), Simple
Assault (M1) and Harassment (S) charges.
2
  Com. v. I-fart, 911 A.2d 939, 941 (Pa. Super. 2006).
      but its legal determinations    are subject to plenary review.3   The PCRA court's findings

     will not be disturbed unless there is no support for the findings in the certified record."

            Pursuant to 42 Pa.C.S. 9545(b), a PCRA petition, including second and

     subsequent petitions, must be filed within one year of the date the judgment becomes

     final, unless the petition alleges and the petitioner proves that his claim(s) fall under any

     of the three enumerated exceptions to the one year requirement. These exceptions are

     interference by government officials5, facts unknown and not discoverable by due

     diligence6, and newly recognized constitutional rights that apply retroactively7.             A

     petition claiming one of these exceptions must be filed within sixty (60) days of the time

    the claim could have been presented.8 Further, the Pennsylvania Supreme Court set

    forth in Commonwealth v. Fahy that "a claim of ineffective assistance of counsel does

    not save an otherwise untimely petition for review on the merits."?

           In the instant matter, Chestnut's PCRA petition was timely filed and, in

    conjunction with the Amended Petition, asserted claims of ineffective assistance of

    counsel.    Upon review of the record, the petition, the Amended Petition, and the

    Commonwealth's Motion to Dismiss, this Court has determined that Chestnut's claims

    are without merit.

          Under the Post-Conviction Relief Act, claims of ineffective assistance of counsel

are evaluated pursuant to the three-prong test set forth by the Pennsylvania Supreme



3Com.
         v. Hawkins, 894 A.2d 716, 722 (Pa. 2006).
4
    Com. v. Hart, 911 A.2d 939, 941 (Pa. Super. 2006}.
5
   42 Pa.C.S. 9545(b)(1)(i).
6
   42 Pa.C.S. 9545(b}(1 ){ii).
7
   42 Pa.C.S. 9545(b)(1}(iii).
8
  42 Pa.C.S. 9545(b)(2).
9
   714 A.2d 214 (Pa. 1999).
10
    Id. at 223.
      Court in Commonwealth v. Pierce", using the same standard as when such claims are

     raised on direct appeal."     Pierce established that ineffectiveness claims are measured

     by both counsel's performance and the prejudice suffered by the petitioner.13            The law

     presumes counsel to have been effective; thus, the petitioner bears the burden of

     establishing the following three prongs: first, that the ineffectiveness claim has arguable

     merit; second, that counsel's act or omission did not have a reasonable basis; and third,

     that the petitioner suffered prejudice on account of counsel's act or omission."           If it is

     apparent that the prejudice prong has not been met, the first two prongs of the test need

     not be determined.15

            In assessing the Pierce prongs related to counsel's performance, counsel's error

     or omission "must have so undermined            the truth determining process that no reliable

     adjudication of guilt or innocence could have taken place.?"          Counsel inherently has

     broad discretion to determine the strategy employed, thus a review of counsel's act or

 omission must determine          whether counsel's decisions were reasonably designed to

 benefit the client.17      A finding that a chosen strategy lacked a reasonable basis is not

 warranted unless it can be concluded that an alternative not chosen offered a potential

 for success substantially greater than the course actually pursued.18

           In assessing the prejudice prong of Pierce, the petitioner must prove that he

suffered prejudice on account of counsel's decisions. "Prejudice" can be described as

11
      527 A.2d 973 (Pa. 1987).
12
   Com. v. Kimball, 724 A.2d 326 (Pa. 1999).
13
   Com. v. Pierce, 527 A.2d 973, 975 (Pa. 1987).
14
15
   ta. see also Com. v. Breakiron, 729 A.2d 1088, 1101 (Pa. 1999).
   Com. v. Jones, 683 A.2d 1181, 1188 (Pa. 1996).
16
   Com. v. Hawkins. 894 A.2d 716, 722 (Pa. 2006) (citing Com. v. Allen, 732 A.2d 582, 587 n.15 (Pa.
1999).
17
   Com. v. Fowler, 670 A.2d 153, 155 (Pa. Super 1996); Com. v. Polston, 616 A.2d 669, 677 (Pa. Super
1992).
18
     Com. v. Howard, 719 A.2d 233, 237 (Pa. 1998).
     whether,    but for the arguably      ineffective    act or omission,    there is a reasonable

     probability that the outcome would have been different.19          In other words, the petitioner

     must establish that counsel's actions prejudiced him to such an extent that a reliable

     determination of guilt was not made at trial.20

            To establish that a guilty plea was unlawfully induced             due to trial counsel's

     ineffectiveness,   the petitioner   must show that it was counsel's          ineffectiveness   that

     caused him to enter the plea.21     Ineffectiveness will provide a basis for withdrawal of the

     plea only where there is a causal nexus between counsel's ineffectiveness.             if any, and

     an unknowing or involuntary plea.22 In determining whether such nexus exists, the court

    must review the guilty plea hearing with a focus on whether the petitioner was misled or

    misinformed and acted under that misguided influence when entering the guilty plea.23

    In order to prevail on a claim that the guilty plea was unlawfully              induced,   thereby

    allowing the withdrawal of such plea after sentencing, the petitioner must demonstrate

    that his plea was the result of "manifest injustice."24      To establish manifest injustice, the

    petitioner must show that his plea was involuntary or was given without knowledge of

 the charge.25      The Comment to Pa.R.Crim.P           590(a)(2) provides, in relevant portion, that

 a court should make, at a minimum, the following inquiries to determine whether the

defendant has voluntarily,       knowingly, and intelligently entered a guilty plea:

           (1) Does the defendant understand the nature of the charges to which he
           is pleading guilty?
           (2) Is there a factual basis for the plea?

19

2° Com. v. Kimball, 724 A.2d 326,
   Com. v. Lassen, 659 A.2d 999,
                                   330 (Pa. 1999).
                                  1011 (Pa. Super 1995).
21
   Com. v. Lutz, 424 A.2d 1302, 1305 (Pa. 1981 ).
22
   Com. v. Flood, 627 A.2d 1193, 1199 (Pa. Super. 1993).
23 Id.
24
   Com. v. Pollard, 832 A.2d 517, 522 (Pa. Super. 2003); Com. v Holbrook. 629 A.2d 154, 158 (Pa.
Super. 1993).
zs Id.
             (3) Does the defendant understand that he has the right to trial by jury?
             (4) Does the defendant understand that he is presumed innocent until
             found guilty?
             (5) Is the defendant aware of the permissible range of sentences and/or
             fines for the offenses charged?
             (6) Is the defendant aware that the judge is not bound by the terms of any
             plea agreement tendered unless the judge accepts such agreement?26

     An assessment of whether the defendant understood the guilty plea and its

     consequences must be determined by examining the totality of the circumstances.27

             In· the instant matter, this Court initially notes that Chestnut has already litigated

     the issue of the knowing, intelligent, and voluntary nature of his plea on direct appeal

     and the Superior Court found his plea to be knowing,              intelligent,   and voluntary.       As

     such,   the issue is not properly        raised   in the instant     petition    and any issue        of

     ineffectiveness   is necessarily     refuted by the Superior        Court's      findings   related   to

     Chestnut's   plea.    Nonetheless,     this court has chosen          to address       the merits of

     Chestnut's claim, as the record makes clear that Chestnut's plea was made voluntarily,

     knowingly, and intelligently.      This court conducted a lengthy colloquy of Chestnut to

 ensure that he understood           the nature of the charges, Chestnut's absolute right to go to

 trial, what the witnesses would say if called to testify at trial, the mandatory 25-50 year

 sentence faced by Chestnut if convicted at trial, the negotiated sentence offered by the

 Commonwealth as part of a nolo contendere plea, and Chestnut's ability to understand

 the information       provided to him by his counsel          as well as this court.       Chestnut   was

asked if he understood these points and, in response, Chestnut provided a series of




26
     Comment to Pa.R.Crim.P. 590(a)(2).
27
     Com. v. Broadwater, 479 A.2d 526, 531 (Pa.Super. 1984).
       voluntary and affirmative responses.28 Most poignant to the colloquy was the exchange

       regarding Chestnut's medication and ability to understand, as provided below:

               THE COURT: So I'm just making sure that you can understand what's
               going on here today, and I feel confident that you do understand what's
               going on and that you have been able to communicate with the Court in
               writing before today. Is that right?
               THE DEFENDANT: Yes.
               THE COURT: Okay. Now, as you sit here today, are you under the
              influence of any drugs or alcohol?
              THE DEFENDANT: I was.
              MR. HOUSTON: He says he's supposed to be or he's taking some type of
              psychotropic drug, Judge, but it doesn't really inhibit or interfere with his
              ability to understand.
              THE COURT: Okay. It's just that you do take medications, Mr. Chestnut,
              but do you understand what's going on here today?
              THE DEFENDANT: Yes.
              THE COURT: Okay. And do you need for either myself or Mr. Houston to
             explain to you anything in more detail about what it means to plead no
             contest here today?
             THE DEFENDANT: No, ma'am.29
             THE COURT: Okay. Now, is anyone forcing or threatening you to get you
             to plead no contest today?
             THE DEFENDANT: No, ma'am.

     As such, Chestnut is unable to demonstrate that his plea was the result of manifest

     injustice or that his guilty plea was caused by the ineffective assistance of trial counsel.

 Moreover, Chestnut is unable to show that he was prejudiced by counsel's actions, as

 he was sentenced to the aggregate negotiated 10-20 year period of incarceration, when

 he faced two charges carrying a 25 year minimum sentence, pursuant to 42 Pa.C.S. §

 9718.2. In consideration               of the negotiated nature of Chestnut's nolo contendere plea

and the colloquy conducted by this court, this court cannot find that counsel provided

ineffective assistance to Chestnut nor that the plea was caused by his ineffectiveness.




28
29
     For full text of colloquy,   see   N. T. 2/3/2011 at 22-36.
     N.T 2/3/2011 at 31:4-25; 32:2-9.
CONCLUSION

      Based upon this court's independent review of the record, the petition, and the

submissions of counsel, this court concludes that Chestnut's claims lack merit.
  First Judicial District of Pennsylvania
  Honorable Linda A. Carpenter
  1418 Criminal Justice Center
  1301 Filbert Street
  Philadelphia, PA 19107


 Commonwealth v. Michael Chestnut
 CP-51-CR-0002512-2009


 Date: January 29, 2016


                                        PROOF OF SERVICE

 I hereby certify that I am this day serving the foregoing upon the person(s), and in the manner
 indicated below, which service satisfies the requirements of Pa. R. Crim. P. 114:


 Defense Counsel/Party:      Michael Chestnut
                            JW-9464
                            SCI-Greene
                            175 Progress Drive
                            Waynesburg, PA 15370

                            J. Matthew Wolfe, Esq.
                            4256 Regent Square
                            Philadelphia, PA 19104

Type of Service: ( ) Personal     ( X) First Class Mail    ( ) Other, please specify:      _


District Attorney:   Robin Godfrey, Esq.
                     District Attorney's Office
                     Three South Penn Square
                     Philadelphia, PA 19107

Type of Service: ( ) Personal     ( X ) First Class Mail   ( ) Other, please specify:          _
