J-S72018-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    JAMES EARL KINSLEY,                        :
                                               :
                      Appellant                :      No. 1607 EDA 2017

                   Appeal from the PCRA Order April 18, 2017
               in the Court of Common Pleas of Delaware County,
              Criminal Division at No(s): CP-23-CR-0000053-2014

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

MEMORANDUM BY MUSMANNO, J.:                           FILED JANUARY 18, 2018

        James Earl Kinsley (“Kinsley”) appeals from the Order dismissing his

first Petition filed pursuant to the Post Conviction Relief Act (“PCRA”). 1 We

affirm.

        In its Opinion, the PCRA court set forth its findings of fact, which we

adopt for the purpose of this appeal. See PCRA Court Opinion, 4/18/17, at

1-5.

        Kinsley did not file a direct appeal. On June 12, 2015, Kinsley, pro se,

filed the instant, timely PCRA Petition. The PCRA court appointed counsel,

who filed an amended Petition, asserting therein that (1) Kinsley’s sentence

was illegal, as his convictions for criminal attempt-involuntary deviate sexual


____________________________________________


1   See 42 Pa.C.S.A. §§ 9541-9546.



____________________________________
* Former Justice specially assigned to the Superior Court.
J-S72018-17



intercourse (“IDSI”) (person less than 16 years of age) and criminal

solicitation-IDSI (forcible compulsion) should have merged; and (2) Kinsley’s

trial counsel was ineffective for failing to detect the error.      On March 21,

2017, the PCRA court conducted a hearing on the Petition.             On April 18,

2017, the PCRA court issued its Order dismissing the Petition. This timely

appeal followed.

      On appeal, Kinsley raises the following issue for our review: “Whether

the PCRA [c]ourt erred in [dismissing Kinsley’s] PCRA [P]etition where the

record clearly showed that [Kinsley’s] sentences for the convictions for

[c]riminal [a]ttempt-IDSI [(p]erson [l]ess than 16 [y]ears of [a]ge[)], 18

Pa.C.S.[A.]   §    901(a)[,]   and   [c]riminal   [s]olicitation-I[DS]I   [(f]orcible

[c]ompulsion[)], 18 Pa.C.S.[A.] § 902(a)[,] are illegal sentences because

these offenses merge?” Brief for Appellant at 4.

            We review an order dismissing a petition under the PCRA
      in the light most favorable to the prevailing party at the PCRA
      level. This review is limited to the findings of the PCRA court
      and the evidence of record. We will not disturb a PCRA court’s
      ruling if it is supported by evidence of record and is free of legal
      error. This Court may affirm a PCRA court’s decision on any
      grounds if the record supports it. Further, we grant great
      deference to the factual findings of the PCRA court and will not
      disturb those findings unless they have no support in the record.
      However, we afford no such deference to its legal conclusions.
      Where the petitioner raises questions of law, our standard of
      review is de novo and our scope of review plenary.

Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (citations

omitted).




                                       -2-
J-S72018-17



       Kinsley contends that he received two sentences for the same criminal

act, in violation of 18 Pa.C.S.A. § 906.2 Brief for Appellant at 11. Kinsley

asserts that he “understood that he was entering a plea to only one victim.”

Id.   Kinsley claims that “the [PCRA] court erred in determining that there

were two different criminal episodes[,] where there is nothing in the guilty

plea hearing to support that finding.” Id.

       In its Opinion, the PCRA court addressed Kinsley’s issue, set forth the

relevant law, and determined that the convictions were not subject to

merger under section 906 because Kinsley knowingly and intelligently plead

guilty to criminal attempt-IDSI (person less than 16 years of age) in relation

to one victim, and plead guilty to criminal solicitation-IDSI (forcible

compulsion) in relation to a different victim.           See PCRA Court Opinion,

4/18/17, at 5-10; see also id. at 10 (wherein the PCRA court determined

that “[t]he record is clear that [Kinsley] was fully appraised by his

attorney[,] and knew that there were two separate episodes, two separate

informations/two       cases[,]    and     that   [Kinsley]   had   negotiated   one

resolution.”).    We agree with the reasoning of the PCRA court, which is

supported by the record and free of legal error, and affirm on this basis.

See id.; see also PCRA Court Opinion, 6/2/17, at 3 (wherein the PCRA

____________________________________________


2 Section 906 provides that “[a] person may not be convicted of more than
one of the inchoate crimes of criminal attempt, criminal solicitation or
criminal conspiracy for conduct designed to commit or to culminate in the
commission of the same crime.” 18 Pa.C.S.A. § 906.



                                           -3-
J-S72018-17



court explained that Kinsley’s “inchoate crimes were not designed to commit

or to culminate in the same crime[, because] they were separate crimes of

sexual abuse of children, as they involved separate dates and different

perceived victims.”).

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/18/18




                                   -4-
                                                                     Circulated 12/19/2017 03:32 PM




 IN THE COURT OF COMMON PLEAS OF DELAWARE COUNTY, PENNSYLVANIA
                              CRIMINAL DIVISION


COMMONWEALTH OF PENNSYLVANIA                 CP-23-CR-0000053-2014


                v.

JAMES EARL KINSLEY



                                    ORDER

      AND NOW, this 18th day of April, 2017, after consideration of Defendant's


PCRA PETITION and AMENDED PCRA PETITION; COMMONWEALTH'S ANSWER IN

OPPOSITION TO DEFENDANT'S AMENDED POST-CONVICTION RELIEF ACT

PETITION/MOTION TO DISMISS and a hearing held thereon in open court on

March 21, 2017, it is hereby ORDERED and DECREED that the Court finds that

Defendant has failed to show ineffective assistance of counsel and Defendant's

PCRA Petition is DISMISSED.

Findings of fact:

1.    Defendant was arrested on November 16, 2013 and charged with the

following offenses: IDSI - Person Less the 16 -Criminal Attempt, Statutory Sexual

Assault-Criminal Attempt, Corruption of Minors-Criminal Attempt, IDSI Person




                                         1
Less then 16-Criminal Solicitation, Statutory Sexual Assault-Criminal Solicitation

and related offenses.

2.    Defendant retained the services of Michael Malloy, Esquire and appeared in

the Court of Common Pleas for a Pre-Trial Conference on March 5, 2014.

3.    Defendant's trial date was set for March 31, 2014. Defendant and his

attorney, Brian Malloy, Esquire appeared and requested a continuance as the

case was still under discussion/negotiations with the District Attorneys' Office.

Similar requests were made on May 5 and May 19.

4.     On June 10, 2014 the Commonwealth, represented by Ryan Grace, Esquire,

moved in open court to amend the Informations adding another count of all

offenses charged and further stated that he was going to make an offer to

Defendant. The Defense had no objection to the amendment. (See N.T. July 22,

2014 page 3, wherein Commonwealth summarizes what occurred on June 10.}

 5.    The ORDER GRANTING MOTION FOR LEAVE TO AMEND INFORMATION was

 signed on June 11, 2014. The Defense continued the case to June 16. On June 16

 an offer was extended to Defendant and the Defense requested that the case be

 passed to June 19. On June 19, the Defense requested a continuance until July

 14. On July 14, the Defense requested a continuance to July 22, 2014.




                                           2
6.    At this point, it is clear that Defendant was fully aware that the

Commonwealth had two separate cases, two distinct incidents, and that the two

cases were now combined into one case for disposition.

7.    On July 22, 2014 the Commonwealth and Defense again appeared before

the court. The Commonwealth, through Mr. Grace, explained that the offer had

been extended in June; the parties had engaged in additional back and forth

negotiations in an effort to resolve the matter without trial; and that he had been

notified the Defendant was rejecting the offer. (N.T. July 22, 2014, p. 2.)

8.    Commonwealth placed the Offer on the record. Mr. Grace first outlined

the offer to Count I -Attempted IDSL Then Mr. Grace stated the following: "And

 then the Commonwealth would ask the defendant plead guilty to Count 12.

 That's one of the new counts." (N.T. July 22, 2014, page 4). The Commonwealth

 outlined the offer then stated the following: "l should note for your Honor there

 are two different undercover sting operations. The allegation is the defendant

 was talking to two different undercover officers at the same time. So these are

 not the same episodes. They are two different episodes of attempt, and on the

 other hand by the Solicitation. So the Commonwealth would be seeking for

 consecutive sentence at trial." (N.T. July 22, 2014, page 5).




                                           3
9.     On July 24, 2014, defendant appeared before the court to enter into a

negotiated guilty plea. It is noted that the defendant improved his sentence by

negotiating from a 3-6 year term of incarceration to a _2 Yi - 7 year term of

incarceration on the Attempt IDSI; however, the 4 year consecutive probation

remained the same for the Solicitation to IDSI. During the course of the guilty

plea colloquy, the following exchange took place:

             THE COURT:        Then, I will ask the Commonwealth Attorney
             to provide a factual basis for the plea.

             MR. GRACE: Your Honor, the Commonwealth submits both
             the Affidavit of Probable Cause that was filed initially in the
             criminal complaint as well as a supplemental Affidavit of
             Probable Cause that was handed up to Your Honor, I believe
             on Tuesday, Monday or Tuesday of this week.

             THE COURT: Correct. Do you agree to that?

              MR. MALLOY: Yes, Your Honor.




              THE COURT: Are you offering your Guilty Plea in this case because
              you admit that you did the things that are stated in the Affidavit
              of Probable Cause -

              THE DEFENDANT: Yes.

              THE COURT: -- both of them? Has your attorney explained the
              meaning and the elements of the crimes you are pleading guilty
              to, which is Attempt IDSI and Solicitation IDSI?



                                           4
              THE DEFENDANT: Yes.

              (N.T. July 24, 2014, pages 7 and 8).

As part of the plea colloquy, the defendant was asked to sign the Criminal

Informations to evidence the guilty plea, which he did. They are clearly two

different sets of Informations. The Informations are part of the record.

Sentencing was scheduled for October 16, 2014 and a PSI and a Psvchosexual

Evaluation were ordered.

10.     The Psychosexual Evaluation was held on August 11, 2014 wherein the

defendant told the Evaluator, Dr. Catherine Surbeck, PhD., the following: "There

were 2 cases. In September, they said 15. In October, they said 14. They used a

different name. Jake was supposed to be 15. I don't remember the name of the

14 year old.11

11.      On October 16, 2014, defendant was sentenced in accordance with the

negotiated guilty plea.

 Discussion

       The record in this case supports the conclusion that the Defendant's guilty

 pleas were knowingly and voluntarily entered and that the Defendant failed to

 establish that his plea Counsel's stewardship was ineffective in any manner. To

 succeed on an ineffective assistance of counsel claim, a Defendant must satisfy


                                             5
the three-pronged "Pierce test"; that is, a defendant must plead and prove: (1}

the underlying claim has merit, (2} counsel's performance had no reasonable

basis, and {3} counsel's ineffectiveness prejudiced the defendant. Commonwealth

v. Lassiter, 554 Pa. 586, 592, 772 A.2d 657, 660 (1998} (citing Commonwealth v.

Lacava, 542 Pa. 160,178, 666 A.2d 221, 229 {1995)). A defendant must then prove

that counsel's ineffectiveness "so undermined the truth-determining process that

no reliable adjudication of guilt or innocence could have taken place. " Lassiter,

554 Pa. at 592, 772 A.2d at 660. "Prejudice in the context of ineffective assistance

of counsel means demonstrating that there is a reasonable probability that, but

for counsel's error, the outcome of the proceeding would have been different."

Commonwealth v. Cox, 603 Pa. 223, 243, 983 A.2d 666, 678 (2009} {quoting

 Pierce, supra at 213; citing Strickland v. Washington, 466 U.S. 668, 694 {1984)).

       Counsel is presumed effective and Defendant bears the burden of proving

 otherwise. Commonwealth v. Ligons, 971 A.2d 1125, 1137 {Pa. 2009}. In order to

 overcome that presumption, defendant must demonstrate that (1) his underlying

 claim has merit, (2) there was no reasonable basis for Counsel's actions, and (3)

 defendant suffered prejudice as a result. Commonwealth v. Miller, 746 A.2d 592,

 598 (Pa. 2000). The failure to satisfy any prong of this test will cause the entire

 claim to fail. Commonwealth v. Bridges, 584 Pa. 1127, 886 A.2d 1127 (2005).


                                            6
      Once a defendant has entered a plea of guilty, it is presumed that he was

aware of what he was doing, and the burden of proving involuntariness is upon

him. Commonwealth v. Owens, 321 Pa. Super. 122, 467 A.2d 1159 (1983);

Commonwealth v. Brown, 242 Pa. Super. 240, 363 A.2d 1249 (1976). A plea of

guilty constitutes a waiver of all defects and defenses. Upon entry of a guilty plea,

all challenges to the plea are waived except challenges to voluntariness,

jurisdiction of the court, and the lawfulness of the sentence. Commonwealth v.

Bauer, 413 Pa. Super. 220, 604 A.2d 1098 (1992); Commonwealth v. Coles, 365

Pa-. Super. 562, 530 A.2d 453 {1987), appeal denied, 522 Pa. 572, 559 A.2d 34

(1989). If an underlying claim was waived by the guilty plea, a derivative claim of

ineffective assistance of counsel must necessarily fail. Commonwealth v. Bauer,

413 Pa. Super. 220, 604 A.2d 1098 {1992}; Commonwealth v. Davis, 518 Pa. 77,

83, 541 A.2d 315 (1988). A Defendant who pleads guilty may seek post conviction

 relief where the plea was unlawfully induced and the defendant is "innocent."

 Commonwealth v. Woodrow, 743 A. 2d 458 (Pa. Super. 1999) To withdraw the

 guilty plea on the grounds that the plea was unlawfully induced, the defendant

 must prove that the "plea was the result of manifest injustice.   11
                                                                        Commonwealth v.

 Holbrook, 629 A.2d 154,158 {Pa.Super. 1993}.




                                           7
      In order to prevail on a PCRA claim that a guilty plea was unlawfully

induced, the Defendant is required to plead and prove by a preponderance of the

evidence that his guilty plea was unlawfully induced where circumstances made it

likely that the inducement caused him to plead guilty, or that the ineffective

assistance of counsel caused an involuntary or unknowing plea. Commonwealth v.

Rathfon, 899 A. 2d 365 {Pa. Super. 2006); Commonwealth v. Mendoza, 730 A. 2d

503 (Pa. Super. 1999); Commonwealth v. Patterson, 690 A. 2d 250 (Pa. Super.

1997). To meet this standard, the Defendant must establish that the plea was

"involuntary or given without knowledge of the charge." See e.g., Commonwealth

v. Blackwell, 647 A. 2d 915 (Pa. Super.1994).

      To determine whether a plea was knowing and voluntary, the reviewing

court examines the guilty plea colloquy to ascertain defendant's understanding

of: (1) the nature of the charges; (2) the factual basis for the plea; (3) the right to

a jury trial; (4) the presumption of innocence; (5) the permissible range of

sentences; and (6) the court's power to depart from any recommended sentence.

 Commonwealth v. Morrison, 878 A.2d 102, 107 (Pa. Super. 2005).

       The adequacy of a guilty plea colloquy and the voluntariness of the

 resulting plea must be examined under the totality of the circumstances

 surrounding the entry of the plea. Commonwealth v. Muhammad, 794 A.2d 378


                                            8
(Pa.Super. 2002} at 383 384. Thus, "[t]he trial court may consider a wide array of

relevant evidence under this standard including, but not limited to, transcripts

from other proceedings, off the record communications with counsel, and written

plea agreements." Commonwealth v. Fears, 836 A.2d 52, 64 (Pa. 2003);

Commonwealth v. Bedell, 954 A.2d 1209, 1212 1213 (Pa.Super. 2008).

      In this case, the Defendant understood and responded affirmatively to each

and every material inquiry posed from the Court and Counsel during the colloquy;

The Court found Defendant's plea to be knowingly, intelligent and voluntary. The

Defendant indicated that he understood all of the rights he was waiving, and that

he clearly wished to enter the plea. There is nothing in the record to indicate that

the plea was not voluntary.

       Based upon this record, Defendant could not possibly show that his plea

was unknowing or involuntary. See Commonwealth v. McCauley, 797 A.2d 920,

 922 (Pa. Super. 2001) ("where ... a guilty plea colloquy was conducted, during

 which it became evident that the defendant understood the nature of the charges

 against him, the voluntariness of the plea is established"); Commonwealth v.

 Smith, 450 A.2d 973, 974 (Pa. 1982) (a written colloquy is prima facie evidence

 that defendant was aware of his rights); Commonwealth v. Pollard, 832 A.2d517,

 523 (Pa. Super. 2003) ("[a defendant] may not later assert grounds for


                                           9
withdrawing the plea which contradict the statements he made at his plea

colloquy"): Commonwealth v. Sauter, 567 A.2d 707, 708-09 (Pa. Super. 1989).

(Where a written plea colloquy is supplemented by an oral colloquy, it "suggests

most strongly" that the guilty plea was made knowingly, voluntarily and

intelligently).

       The record is clear that defendant was fully apprised by his attorney and

knew that there were two separate episodes/two separate Informations/two

cases and that he had negotiated to one resolution. The defendant entered into

the negotiated guilty plea knowingly, voluntarily and intelligently and no relief

shall be granted.




                                       BY THE COURT:



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                                       Mary Alice Bnn;,,i




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