J-S82037-17

                                2018 PA Super 65

    COMMONWEALTH OF PENNSYLVANIA,           :      IN THE SUPERIOR COURT OF
                                            :            PENNSYLVANIA
                    Appellee                :
                                            :
                       v.                   :
                                            :
    DANIEL JACOB PIER,                      :
                                            :
                    Appellant               :      No. 988 WDA 2017

                   Appeal from the PCRA Order June 12, 2017
                  in the Court of Common Pleas of Erie County
              Criminal Division at No(s): CP-25-CR-0001536-2015

BEFORE:       BENDER, P.J.E., STEVENS, P.J.E.,* and STRASSBURGER, J.**

OPINION BY STRASSBURGER, J.:         FILED MARCH 21, 2018

        Daniel Jacob Pier (Appellant) appeals from the June 12, 2017 order that

denied his petition filed pursuant to the Post Conviction Relief Act (PCRA), 42

Pa.C.S. §§ 9541-9546. We affirm.

        The Commonwealth charged Appellant with aggravated assault and

endangering the welfare of a child, claiming that he caused multiple injuries,

including fractures of the arms and legs, to his less-than-two-month-old child,

and failed to seek medical attention. N.T., 1/6/2016, at 7-8. Appellant pled

no contest to the charges.1 On March 8, 2016, Appellant was sentenced to an

aggregate term of 23 to 46 months of incarceration.          Appellant’s post-




1   The Commonwealth thereafter dismissed other charges not discussed herein.


* Former Justice specially assigned to the Superior Court.
** Retired Senior Judge assigned to the Superior Court.
J-S82037-17


sentence motion to modify sentence nunc pro tunc was denied on March 28,

2016, and he filed no direct appeal.

      Appellant timely filed a PCRA petition on August 24, 2016. Counsel was

appointed, and, after transcripts were produced, a supplemental petition was

filed on March 13, 2017. On May 10, 2017, the PCRA court issued notice of

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

Pa.R.Crim.P. 907. Appellant did not respond, and the PCRA court dismissed

the petition by order of June 12, 2017.      Appellant timely filed a notice of

appeal, and both Appellant and the PCRA court complied with Pa.R.A.P. 1925.2

      “Our standard of review of a [PCRA] court order granting or denying

relief under the PCRA calls upon us to determine ‘whether the determination

of the PCRA court is supported by the evidence of record and is free of legal

error.’” Commonwealth v. Barndt, 74 A.3d 185, 192 (Pa. Super. 2013)

(quoting Commonwealth v. Garcia, 23 A.3d 1059, 1061 (Pa. Super. 2011)).

      On appeal, Appellant claims that the PCRA court erred in denying his

PCRA petition because his plea was unknowing and involuntary. Specifically,

Appellant claims that his plea was invalid because (1) plea counsel “failed to

advise [Appellant] of his right to withdraw his no contest pleas and of the

distinct legal standards relating to withdrawal of a plea prior to sentencing and




2 The PCRA court did so by directing our attention to its Rule 907 notice for
the reasons for its decision.

                                       -2-
J-S82037-17


post-sentencing;” and (2) the “pleas were a product of a false and coerced

confession made to the police investigators[.]” Appellant’s Brief at 2.

      To the extent that Appellant is challenging the effectiveness of his plea

counsel, we bear in mind that counsel is presumed to be effective.

Commonwealth v. Simpson, 112 A.3d 1194, 1197 (Pa. 2015). To prevail

on a claim of ineffective assistance of counsel, a PCRA petitioner must prove

each of the following: “(1) the underlying legal claim was of arguable merit;

(2) counsel had no reasonable strategic basis for his action or inaction; and

(3) the petitioner was prejudiced—that is, but for counsel’s deficient

stewardship, there is a reasonable likelihood the outcome of the proceedings

would have been different.” Id.

      Allegations of ineffectiveness in connection with the entry of a
      guilty plea[3] 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 was within the range of competence
      demanded of attorneys in criminal cases.

Commonwealth v. Moser, 921 A.2d 526, 531 (Pa. Super. 2007) (internal

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




3 Appellant pled no contest rather than not guilty. However, “[i]t 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. V.G., 9 A.3d 222, 226
(Pa. Super. 2010). The standards for voluntariness and withdrawal of the
plea are the same in both instances. See Pa.R.Crim.P. 590(A)(3) (discussing
understanding and voluntary requirement of guilty or nolo contendere plea);
Pa.R.Crim.P. 591 (providing one set of standards for withdrawal of plea of
guilty or nolo contendere).

                                     -3-
J-S82037-17


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.” Barndt, 74 A.3d at 192 (citation and internal quotation marks

omitted).

      To the extent that Appellant contends that his plea was involuntary

because of his allegedly-coerced confession, Appellant must establish that his

confession was constitutionally infirm, that the circumstances surrounding the

plea make it likely that the confession caused him to enter the plea, and that

counsel incompetently advised Appellant to enter the plea. Commonwealth

v. Nelson, 574 A.2d 1107, 1110-11 (Pa. Super. 1990).

      Appellant does not discuss his two challenges separately. Rather, the

entirety of his argument is as follows.

            [Appellant] has alleged that counsel was ineffective in failing
      to advise him of his right to withdraw his no contest pleas and
      most importantly the distinct legal standards for said withdrawal
      based upon pre-sentencing and post-sentencing withdrawal.

            [Appellant] asserts that his no contest pleas were the
      product of his preceding confession to the police interrogators,
      which confession was false and the product of coercion by those
      police agents who promised that he would be permitted to leave
      [] the police station after he falsely admitted to the charges
      involving the assault and mistreatment of the infant, M.P. The
      recitation of the impact the false confession had on the election
      thereafter to enter the no contest pleas would have afforded
      [Appellant] with a fair and just reason to seek to withdraw the no
      contest pleas, if he had been apprised of his right to exercise that
      option. [Appellant] has provided further proof that his confession
      was in fact false and the product of police coercion in the form of
      statement from his parents, James Pier and Leann Pier, which
      statements were appended to the supplemental PCRA before the
      [PCRA c]ourt. His pa[r]ents recite that Kristen Farley, (mother of

                                      -4-
J-S82037-17


        M.P.), admitted to both of them on September 23, 2014 that she
        knew that [Appellant] lied about his confession because she was
        fully aware that he had never hurt her or the baby, which was the
        predicate for the criminal charges to which he confessed and
        ultimately pled no contest to in regard to the injuries to M.P. and
        the failure to seek prompt and necessary medical care for the
        infant.   This admission by Kristen Farley corroborates and
        supports [Appellant’s] instant challenges to the legal efficacy of
        the no contest pleas.

Appellant’s Brief at 4-5.

        We are unpersuaded that the PCRA court erred or abused its discretion

in dismissing Appellant’s PCRA petition.       Appellant cites no authority to

support his claim that effective assistance of plea counsel requires a discussion

of the nuances of the standards for pre- and post-sentence withdrawal of the

plea.    On the other hand, the PCRA court, citing the requisites of a plea

colloquy, notes that confirmation that a defendant is making a knowing,

intelligent, and voluntary plea does not require that the defendant have any

understanding of the legal standards for withdrawal of the plea. Notice of

Intent to Dismiss, 5/10/2017, at 5 (citing Pa.R.Crim.P. 590 and Comment

thereto).

        Another defect in Appellant’s argument noted by the PCRA court is that

it is contrary to “[t]he longstanding rule of Pennsylvania law ... that a

defendant may not challenge his guilty plea by asserting that he lied while

under oath, even if he avers that counsel induced the lies.” Commonwealth

v. Turetsky, 925 A.2d 876, 881 (Pa. Super. 2007).           Notice of Intent to

Dismiss, 5/10/2017, at 4-5.



                                       -5-
J-S82037-17


      The record reveals that, after discussing Appellant’s rights, the factual

basis for the plea, and the penalties he faced, and after Appellant indicated

his desire to plead no contest, the trial court colloquied Appellant as follows.

            THE COURT:         Do you understand everything so far?

            [Appellant]:       Yes.

           THE COURT:        Do you understand the rights that you
      waive or give up when you enter a plea?

            [Appellant]:       Yes, sir.

            THE COURT:        Do you understand these two offenses
      that you’re entering a plea to?

            [Appellant]:       Yes.

            THE COURT:      Do you understand that even though
      you’re pleading no contest, you will stand convicted of these
      charges? Do you understand that?

            [Appellant]:       Yes.

            THE COURT:       Have you had enough time to think about
      what to do in your case?

                                      ***

            [Appellant]:       Yes.

            THE COURT:       Are you        satisfied   with   the   legal
      representation you’ve received?

            [Appellant]:       Yes.

           THE COURT:      Do you feel pressured or forced or has
      anyone promised you anything to enter this plea?

            [Appellant]:       No.

                                      ***

                                      -6-
J-S82037-17



           THE COURT:        Has anyone promised you any type of
      sentence in your case?

             [Appellant]:     No.

            THE COURT:      Are you under the influence of any
      substance that would [a]ffect your ability to know what you’re
      doing?

             [Appellant]:     No.

            THE COURT:    Is your plea here knowing and voluntary,
      meaning you know what you’re doing and you’re voluntarily
      entering your plea?

             [Appellant]:     Yes.

N.T., 1/6/2016, at 8-10.

      “A person who elects to plead guilty 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. Pollard, 832 A.2d 517, 523 (Pa. Super.

2003). Hence, even if we saw any logic behind Appellant’s claim that he would

not have lied at the plea colloquy had he known that it would have been harder

to withdraw his plea after sentencing than it would have been before

sentencing, we would agree with the PCRA court that Appellant cannot obtain

relief now based upon the claim that he lied under oath then.

      Order affirmed.




                                     -7-
J-S82037-17




Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary




Date: 3/21/2018




                          -8-
