J-S29036-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                :     IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                                            :
                    v.                      :
                                            :
TODD WALKER                                 :
                                            :
                          Appellant         :
                                            :     No. 1633 WDA 2015

                Appeal from the PCRA Order September 14, 2015
       in the Court of Common Pleas of Lawrence County Criminal Division
                        at No(s): CP-37-CR-0000786-2011
                                  CP-37-CR-0001404-2011
                                  CP-37-CR-0001408-2011
                                  CP-37-CR-0001416-2011

BEFORE: BENDER, P.J.E., PANELLA, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                            FILED MAY 27, 2016

        Appellant, Todd Walker, appeals from the order of the Lawrence

County Court of Common Pleas denying his timely first Post Conviction Relief

Act1 (“PCRA”) petition.        Appellant claims that his prior counsel was

ineffective for failing to investigate his mental health issues before he

pleaded guilty to, inter alia, attempted murder.2 We affirm.

        The PCRA court summarized the procedural history of this appeal as

follows:



*
    Former Justice specially assigned to the Superior Court.
1
    42 Pa.C.S. §§ 9541-9546.
2
    18 Pa.C.S. §§ 901(a), 2502.
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            At Case No. 786 of 2011 CR [Appellant] was charged
         with Criminal Attempt to Commit Homicide (18 Pa.C.S.A.
         §901(a)), Aggravated Assault Attempted Serious Bodily
         Injury (18 Pa.C.S.A. §2702(a)(1)), Aggravated Assault
         Bodily Injury with a Deadly Weapon (18 Pa.C.S.A.
         §2702(a)(4)), and Persons Not to Possess Firearms (18
         Pa.C.S.A. §6105(a)(1)), arising from the shooting of
         Charles Zduniak in New Castle, Lawrence County,
         Pennsylvania.    [Appellant] proceeded to trial and jury
         selection commenced on March 12, 2012. [Appellant]
         subsequently entered a guilty plea before the trial began
         on March 13, 2012, to the charge of Criminal Attempt to
         Commit Homicide, a felony of the first degree. In return,
         the Commonwealth recommended a sentence of not less
         than 7 1/2 years nor more than 15 years in a state
         correctional facility to be followed by 5 years of state
         supervised probation. Additionally, at Case No. 1404 of
         2011 CR., No. 1408 of 2011, CR. and No. 1416 of 2011,
         CR. [Appellant] agreed to plead guilty to one count of
         Possession With Intent to Deliver a Controlled Substance
         (35 P[.S.] §780-113(a)(30)) at each case in exchange for
         the Commonwealth recommending a sentence of not less
         than 1 1/2 years nor more than 3 years in a state
         correctional facility, which sentences were to run
         concurrently with each other and concurrently with case
         No. 486 of 2011, CR.

PCRA Ct. Op., 9/14/15, at 2. Appellant entered his pleas to the four cases

following an extensive colloquy on March 13, 2012, and the court imposed

the sentences agreed to by the parties.        Thomas Leslie, Esq. (“prior

counsel”), who was the county solicitor at the time, represented Appellant

during the pretrial, plea, and sentencing proceedings. Appellant did not take

a direct appeal.

      On December 31, 2012, Appellant filed a timely pro se PCRA petition

claiming prior counsel was ineffective for failing to investigate his mental

health issues.     The PCRA court appointed counsel.     In March of 2014,


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Appellant filed additional pro se materials, including a request for new

counsel. The court acceded to the request and appointed present counsel.

Appointed PCRA counsel did not amend Appellant’s petition, but appeared on

Appellant’s behalf at evidentiary hearings on March 11 and April 29, 2015, at

which Appellant, his mother, a records custodian, Appellant’s childhood

caseworker, and prior counsel testified. Following the submission of briefs,

the PCRA court denied Appellant’s PCRA petition on September 14, 2015.

Appellant timely filed a notice of appeal and complied with the court’s order

to submit a Pa.R.A.P. 1925(b) statement.

      Appellant presents two questions on appeal.

         Whether the [PCRA] court erred when it found that [prior]
         counsel was not ineffective for failing to investigate
         [Appellant’s] mental health history?

         Whether the [PCRA] court erred when it found that [prior]
         counsel was not ineffective for failing to adequately
         represent [Appellant] during his trial, plea, and
         sentencing?

Appellant’s Brief at 4.

      We address Appellant’s two arguments jointly.       He contends prior

counsel was ineffective for failing “to listen to or adequately communicate

with [him].”   Id. at 11.   Appellant emphasizes his mother’s PCRA hearing

testimony that she apprised prior counsel of his mental health history,

“wondered if his diagnoses had anything to do with his troubles[,]” and

informed him that Human Services “‘had a folder as thick as a New York City

phone book’” regarding Appellant. Id. at 17. He notes he established that


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records of treatment at Human Services when he was a juvenile and counsel

failed to request those records or contact his caseworker. Id. at 12, 19.

      Appellant further asserts that prior counsel induced him to plead guilty

and failed to ensure his plea was knowing and voluntary.         According to

Appellant, he entered into the plea because “he thought his attorney told

him he did not have a choice.”     Id. at 27.   Appellant relies on his PCRA

hearing testimony that prior counsel “led him to believe that he had already

been found guilty and that he was given seven to fifteen years.” Id. at 26.

He notes he initially asserted he “wasn’t trying to kill” the victim during the

oral plea colloquy, but then admitted to the factual allegations set forth by

the Commonwealth after an off-the-record discussion with prior counsel. Id.

at 22.   Appellant again notes his history of mental health treatment and

observes that he gave inaccurate answers on the written guilty plea

colloquy, indicating “N/A” to the question regarding treatment for mental

illness and “not” to the question regarding a mental illness. Id. at 21. He

thus suggests his plea was involuntarily and unknowingly entered. For the

reasons that follow, we agree with the PCRA court that no relief is due.

      The principles governing our review are as follows:

         Our standard of review of the denial of a PCRA petition is
         limited to examining whether the court’s determination is
         supported by the evidence of record and free of legal error.
         This Court grants great deference to the findings of the
         PCRA court if the record contains any support for those
         findings.     Further,    the  PCRA    court’s    credibility
         determinations are binding on this Court, where there is
         record support for those determinations.


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         To prevail on a claim alleging counsel’s ineffectiveness
         under the PCRA, [a petitioner] must demonstrate (1) that
         the underlying claim is of arguable merit; (2) that
         counsel’s course of conduct was without a reasonable basis
         designed to effectuate his client’s interest; and (3) that he
         was prejudiced by counsel’s ineffectiveness, i.e. there is a
         reasonable probability that but for the act or omission in
         question the outcome of the proceedings would have been
         different.

         It is clear that a criminal defendant’s right to effective
         counsel extends to the plea process, as well as during trial.
         However, [a]llegations 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 was
         within the range of competence demanded of attorneys in
         criminal cases.

Commonwealth v. Willis, 68 A.3d 997, 1001-02 (Pa. Super. 2013)

(citations omitted).

         It is the duty of the lawyer to conduct a prompt
         investigation of the circumstances of the case and explore
         all avenues leading to facts relevant to guilt. This
         duty to investigate exists even if counsel thinks that the
         particular avenue in question offers little chance of leading
         to a successful defense.

Commonwealth v. McCaskill, 468 A.2d 472, 478 (Pa. Super. 1983)

(citations and quotation marks omitted).

      We have reviewed Appellant’s arguments, the record, and the relevant

law and discern no basis upon which to conclude that the PCRA court erred

or abused its discretion when denying Appellant’s claims of ineffective

assistance of counsel. As noted by the PCRA court, a diminished capacity


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defense   based   on   Appellant’s   mental    health   treatment     history   was

inconsistent with his insistence that he did not shoot at the victim.           See

PCRA Ct. Op. at 7-8. Moreover, the PCRA court, which also presided over

the guilty plea and sentencing proceedings, had ample opportunity to

observe Appellant. Thus, we are bound by the court’s decision to credit prior

counsel’s testimony and finding that Appellant did not appear to be suffering

from a mental condition that would prevent him from understanding the plea

proceedings and voluntarily entering a plea. Id. at 11-12; Willis, 68 A.3d

at 997, 1001.

     We further note that Appellant has not defined the precise mental

condition on which he bases his claims for relief.         At the PCRA hearing,

Appellant’s mother testified Appellant received numerous services as a child

and was hospitalized at “Sharon Regional” when he was in sixth or seventh

grade. Id. She referred to his being prescribed Ritalin and then Adderall

during that time. N.T., 3/11/15, at 55.       Appellant initially testified to being

treated for anxiety and depression and being prescribed “Wellbutrin” and a

medication with “a crazy name.” Id. at 90. He, however, later indicated he

was treated for “ADHD” and a learning disability. Id. at 91. When asked by

appointed PCRA counsel whether he was treated for “oppositional defiant

disorder,” Appellant replied, “I don’t even know what that means.” Id.

Appellant did not seek treatment after 2002.              Significantly, Appellant

adduced no additional evidence in support of a claim that he was suffering



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J-S29036-16

from a mental illness at the time of the incident or plea that would have

precluded him from forming a specific intent to kill or entering a knowing,

voluntary, and intelligent plea. Thus, Appellant has not demonstrated that

an investigation into his mental health treatment history would have

produced evidence favorable to a trial defense or a collateral challenge to his

guilty plea.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/27/2016




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