J-S30042-18


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,              :     IN THE SUPERIOR COURT OF
                                           :           PENNSYLVANIA
                  Appellee                 :
                                           :
                     v.                    :
                                           :
ETHAN ANDREW HANNOLD,                      :
                                           :
                  Appellant                :     No. 86 WDA 2018

              Appeal from the PCRA Order December 12, 2017
              in the Court of Common Pleas of Clarion County
           Criminal Division at No(s): CP-16-CR-0000041-2014
                                       CP-16-CR-0000170-2013

BEFORE:     BENDER, P.J.E., STABILE, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:           FILED AUGUST 7, 2018

      Ethan Andrew Hannold (Appellant) appeals from the order entered

December 12, 2017, denying his petition filed under the Post Conviction Relief

Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.

      This Court, in Appellant’s direct appeal, provided the following summary

of the factual and procedural history of these cases:

                   These cases involved two brutal and senseless
            attacks on innocent women. During the one incident,
            at case number 170 CR 2013, [Appellant] executed a
            plan of running a young woman off the road with his
            car and then coming to her aid[] for the bizarre
            purpose of making himself feel good about helping
            someone. When the young woman told [Appellant]
            her father was coming and she did not need his help,
            he felt rejected and became incensed and punched her
            many times through her open car window, breaking
            her nose and bloodying her face. He then sexually
            assaulted her by grabbing her between her legs and


*Retired Senior Judge assigned to the Superior Court.
J-S30042-18


           ripping her pants off. He tried to pull her out through
           the window, but he fell down and she managed to get
           away.

           In the second case, number 41 CR 2014, [Appellant]
           drove up behind a woman who was walking in town in
           a residential area. Without warning, he ran her down
           with his car and then fled the scene. She suffered a
           traumatic brain injury.

            As a result of both incidents, Appellant was charged with
     multiple crimes.       Appellant proceeded to negotiate plea
     agreements in both cases. At 170 CR 2013, Appellant entered a
     guilty plea on August 28, 2013, to aggravated assault, robbery by
     threat of immediate serious injury, recklessly endangering
     another person (“REAP”), and indecent assault by forcible
     compulsion. All other charges were nol[le] prossed by the
     Commonwealth. The indecent assault charge required an
     assessment by the Sexual Offenders Assessment Board [SOAB] to
     determine if Appellant was a sexually violent predator (“SVP”).
     Appellant moved for appointment of his own expert psychiatrist
     and for in forma pauperis (“IFP”) status. The trial court granted
     both motions.

           Prior to the SVP hearing, the Commonwealth filed a motion
     to compel Appellant to produce his expert witness report. The trial
     court granted the motion to compel Appellant to provide the
     expert report, and subsequently denied Appellant's motion to
     reconsider that decision. The SVP hearing was held on May 16,
     2014. Following the hearing, the trial court deemed Appellant to
     be an SVP.

           At 41 CR 2014, Appellant entered a guilty plea on June 18,
     2014, to aggravated assault. All other charges were nol[le]
     prossed by the Commonwealth.

           On June 18, 2014, Appellant was sentenced, at both
     dockets, to an aggregate sentence of twenty-five to fifty years of
     incarceration in conformity with the plea agreements. The
     sentence included lifetime registration as an SVP.




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Commonwealth v. Hannold, 141 A.3d 588 (Pa. Super. 2016) (unpublished

memorandum at 2-3), quoting Trial Court Opinion, 9/5/2014, at 1.

       Appellant timely filed a direct appeal to this Court, and on February 5,

2016, this Court affirmed Appellant’s judgment of sentence. Id. Appellant

did not file a petition for allowance of appeal to our Supreme Court.

       On January 30, 2017, Appellant, through counsel, filed a timely PCRA

petition asserting several instances of ineffective assistance of trial counsel.

After a series of continuances, the PCRA court held an evidentiary hearing on

August 22, 2017. On December 12, 2017, the PCRA court entered an order

and opinion denying Appellant’s petition. Appellant timely filed a notice of

appeal to this Court.       Both Appellant and the PCRA court complied with

Pa.R.A.P. 1925.

       We consider Appellant’s issues mindful of the following. “Our standard

of review of a trial 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)).

       With respect to claims involving ineffective assistance of counsel, we

bear   in   mind    the    following.    We   presume   counsel   is    effective.

Commonwealth v. Washington, 927 A.2d 586, 594 (Pa. 2007).                      To

overcome this presumption and establish the ineffective assistance of counsel,


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a PCRA petitioner must prove, by a preponderance of the evidence: “(1) the

underlying legal issue has arguable merit; (2) that counsel’s actions lacked an

objective reasonable basis; and (3) actual prejudice befell the [appellant] from

counsel’s act or omission.” Commonwealth v. Johnson, 966 A.2d 523, 533

(Pa. 2009) (citations omitted). “A petitioner establishes prejudice when he

demonstrates that there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.”

Johnson, 966 A.2d at 533 (citation and internal quotation marks omitted). A

claim will be denied if the petitioner fails to meet any one of these

requirements. Commonwealth v. Springer, 961 A.2d 1262, 1267 (Pa.

Super. 2008). This Court may affirm the trial court’s order on any basis even

if it is different from that of the PCRA Court. Commonwealth v. Heilman,

867 A.2d 542, 544 (Pa. Super. 2005).

      We first consider Appellant’s two claims of ineffective assistance of

counsel relating to Appellant’s mental health. Appellant contends that plea

counsel was ineffective for “failing to obtain mental health evaluation reports

and to have a psychiatric evaluation of [Appellant].” Appellant’s Brief at 6.

According to Appellant, “plea counsel was aware Appellant received psychiatric

treatment, and this information should have been included in a [s]entencing

[m]emorandum and presented at the time of sentencing to request a more

appropriate sentence.” Id. Appellant further contends that plea counsel was

ineffective in failing to obtain a psychiatric evaluation of Appellant because,


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according to Appellant, he has an impulse control disorder which caused him

to enter an involuntary guilty plea. Id.

       Appellant relies on Commonwealth v. Williams, 846 A.2d 105 (Pa.

2004) (Williams II),1 to prove these claims have arguable merit and that

counsel had no reasonable basis for his failure to investigate. Appellant’s Brief

at 20. In Williams II, our Supreme Court found that Williams’s claim that

his counsel failed to investigate properly and prepare a case of mitigation for

the penalty phase had arguable merit and that his counsel lacked a reasonable

basis for his actions. 846 A.2d at 112-13. However, our Supreme Court held

that Williams’s claim failed because he did not demonstrate prejudice. Id. at

113.    Williams had presented at the PCRA evidentiary hearing evidence

regarding his mental health issues, including mental health records, testimony

of two mental health experts, and testimony from family and friends. The

Commonwealth had also presented two expert witnesses in rebuttal. After



1 Williams was sentenced to death after a jury found him guilty of capital
murder and related charges. The procedural history involved two appeals to
our Supreme Court. In Commonwealth v. Williams, 732 A.2d 1167 (Pa.
1999) (Williams I), the PCRA court denied Williams’s PCRA petition without
an evidentiary hearing. On appeal, our Supreme Court affirmed in part,
reversed in part, and remanded for an evidentiary hearing to determine
factual issues relating to Williams’s ineffective assistance of counsel claim for
failure to obtain mental health records and a mental health expert. The PCRA
court conducted the evidentiary hearing, where Williams and the
Commonwealth offered evidence of Williams’s mental health issues. After the
evidentiary hearing, the PCRA court again denied Williams’s PCRA petition.
Our Supreme Court’s review of that denial is set forth in Williams II, the case
cited by Appellant.


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the evidentiary hearing, the PCRA court denied Williams’s PCRA petition. Id.

at 108-10. Because the PCRA court had resolved credibility determinations

as to the mental health experts’ testimony against Williams, our Supreme

Court affirmed. Id. at 113.

        Here,   Appellant   does   not   meet   his   burden   of    proving,   by   a

preponderance of the evidence, that he was prejudiced.              Appellant did not

present any evidence of his mental health at the PCRA hearing. Not only did

Appellant fail to present any mental health records or reports relating to any

treatment he may have had, he did not present the testimony or reports of

any mental health experts. At the evidentiary hearing, Appellant testified on

his own behalf, and he called two other witnesses. The first witness was one

of the individuals who had interviewed Appellant for his sexual offender

assessment with the SOAB, and the second was Appellant’s plea counsel.

Appellant offered one exhibit, which was unrelated to his mental health. Other

than Appellant’s own passing reference to his “impulse control disorder” during

one of his oral plea colloquies and during his testimony at the PCRA hearing,2

Appellant failed to substantiate that he suffers from this or any other mental

health disorder. Because Appellant failed to present any evidence to the PCRA

court of his mental condition, Appellant has failed to meet his burden of

proving, by a preponderance of the evidence, that he was prejudiced by plea



2   See N.T., 8/23/2013, at 11; N.T., 8/22/2017, at 77.


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counsel’s failure to present such evidence.     Thus, his first two claims that

counsel was ineffective for failing to obtain mental health records and a

psychiatric evaluation of Appellant prior to entering his plea fail.

      Appellant next complains that his plea counsel should have attended

Appellant’s sexual offender assessment and advised him that “information he

provided during the sex[ual] offender assessment could result in additional

criminal charges being filed against him [or be] used to support a basis for

establishing other criminal behavior.” Appellant’s Brief at 6.

      A challenge to the process by which one’s classification as an SVP was

reached is not cognizable under the PCRA. Commonwealth v. Masker, 34

A.3d 841, 843-44 (Pa. Super. 2011) (en banc); see also Commonwealth v.

Price, 876 A.2d 988 (Pa. Super. 2005) (holding that a challenge to one’s

classification as an SVP is not cognizable under the PCRA).            In Masker,

Masker claimed in his PCRA petition, inter alia, that his counsel was ineffective

for failing “to properly advise [him] of his right to remain silent during his

sexual offender evaluation.” 34 A.3d at 842. This Court held that Masker had

not raised a claim that was cognizable under the PCRA. Id. at 844-45.

      Here, Appellant’s claim of ineffective assistance of counsel for failing to

attend Appellant’s SVP assessment and failing to advise him of his right to

remain silent during such assessment constitutes a challenge to the process

by which he was classified an SVP. See id. at 844 (concluding that “under

the PCRA there is no meaningful difference between a challenge to the [SVP]


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determination itself and a challenge to the process by which it was reached”).

Accordingly, such ineffective assistance of counsel claim is not cognizable

under the PCRA.

      Because Appellant has not presented any issue on appeal that would

entitle him to relief under the PCRA, we affirm the order of the PCRA court.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary




Date: 8/7/2018




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