Com. v. Maisey, D.

Court: Superior Court of Pennsylvania
Date filed: 2022-09-13
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J-A10024-22


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 DENNIS GERALD MAISEY                     :
                                          :
                    Appellant             :   No. 1238 MDA 2021


          Appeal from the PCRA Order Entered September 9, 2021,
             in the Court of Common Pleas of Columbia County,
           Criminal Division at No(s): CP-19-CR-0000145-2019.


 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 DENNIS GERALD MAISEY                     :
                                          :
                    Appellant             :   No. 1239 MDA 2021


          Appeal from the PCRA Order Entered September 9, 2021,
             in the Court of Common Pleas of Columbia County,
           Criminal Division at No(s): CP-19-CR-0000146-2019.


BEFORE: PANELLA, P.J., KUNSELMAN, J., and KING, J.

MEMORANDUM BY KUNSELMAN, J.:              FILED: SEPTEMBER 13, 2022

      Dennis Gerald Maisey appeals from the order denying his first petition

for relief pursuant to the Post Conviction Relief Act (“PCRA”). 42 Pa.C.S.A. §§

9541-46. In addition, PCRA counsel has filed a motion to withdraw. We affirm
J-A10024-22


the order denying Maisey post-conviction relief and grant PCRA counsel’s

motion to withdraw.

        On July 5, 2019, Maisey entered a guilty plea at multiple dockets to

crimes including robbery of a local bank and the armed robbery of a local

dollar store. Thereafter, the trial court sentenced him to a mitigated sentence

at four of the dockets.          Although the trial court ran these sentences

consecutively, the sentences on the seven remaining dockets were imposed

concurrently. This resulted in an aggregate sentence of 90 to 240 months of

imprisonment. Maisey did not file a timely post-sentence motion or a direct

appeal.1

        On July 23, 2020, Maisey filed a pro se PCRA petition. Thereafter, the

PCRA court appointed counsel, who filed a supplemental petition. On August

27, 2021, the court held an evidentiary hearing at which Maisey, and trial

counsel testified.     By order entered September 9, 2021, the PCRA court

dismissed Maisey’s petition. Maisey filed a timely appeal at each docket, which

we consolidated.       Instead of filing a Pa.R.A.P. 1925(b) statement, PCRA

counsel filed notice of his intent to file an Anders2 brief and motion to




____________________________________________


1 On November 1, 2019, and February 24, 2020, Maisey filed pro se motions
for reconsideration of sentence. It appears no action was taken on either of
these filings prior to Maisey’s filing of a petition for post-conviction relief.

2   Anders v. California, 386 U.S. 738 (1967).


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withdraw. Based on this filing, the PCRA court did not file a Pa.R.A.P. 1925(a)

opinion.

      In a prior memorandum, we noted that, despite two orders from this

Court, PCRA counsel failed to file a motion to withdraw.          We therefore

remanded this case so that the PCRA court could appoint new counsel who

“shall file either an advocate’s brief or a Turner/Finley “no merit” letter and

petition to withdraw. Commonwealth v. Maisey, 2022 WL 2112905 (Pa.

Super. 2022).

      Following remand, the PCRA court appointed counsel.         PCRA counsel

then filed an Anders brief and a motion to withdraw.         Compliance with

Anders applies to counsel who seeks to withdraw from representation on

direct appeal.   Anders imposes stricter requirements than those imposed

when counsel seeks to withdraw during the post-conviction process pursuant

to   Commonwealth       v.   Turner,   544    A.2d   927   (Pa.   1988),   and

Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). See

Commonwealth v. Fusselman, 866 A.2d 1109, 1111 n.3 (Pa. Super. 2004).

Thus, we will assess counsel’s assertion that the issues Appellant wishes to

raise have no merit under a Turner/Finley analysis.

      Before we address the merits of the issues Maisey wished to raise on

appeal however, we must first determine whether PCRA counsel’s filing

complies with the procedural requirements of Turner and Finley.              A

Turner/Finley “no merit” letter must:      1) detail the nature and extent of


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counsel’s review of the case; 2) list each issue the petition wishes to have

reviewed; and 3) explain counsel’s reasoning for concluding that the

petitioner’s issues are meritless. Commonwealth v. Knecht, 219 A.3d 689,

691 (Pa. Super. 2019) (citation omitted). “Counsel must also send a copy of

the [letter] to the petitioner, along with a copy of the petition to withdraw,

and inform the petitioner of the right to proceed pro se or to retain new

counsel. Id. If these requirements are met, “we then conduct an independent

review of the petitioner’s issues.” Id.

      Here,   PCRA    counsel    has      complied   with   the   Turner/Finley

requirements. Within his brief, PCRA counsel provides a detailed review of

Maisey’s case. The brief also lists the issues Maisey wished to pursue and

explains counsel’s reasons for concluding that they are meritless. As part of

his withdrawal motion, PCRA counsel has attached a letter addressed to

Maisey informing him of counsel’s motion to withdraw, attaching the brief, and

explaining to him of his right to retain private counsel or proceed pro se. Given

PCRA counsel’s compliance, we must now determine if counsel’s assessment

of Maisey’s claims is supported by the record.




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       On appeal, Maisey wished to challenge trial counsel’s3 ineffectiveness in

failing to:   1) challenge the validity of his guilty plea; 2) file a motion for

sentence reconsideration; and 3) file a direct appeal.

       Our scope and standard of review is well settled:


          In PCRA appeals, our scope of review is limited to the
          findings of the PCRA court and the evidence on the record
          of the PCRA court's hearing, viewed in the light most
          favorable to the prevailing party. Because most PCRA
          appeals involve questions of fact and law, we employ a
          mixed standard of review. We defer to the PCRA court's
          factual findings and credibility determinations supported by
          the record. In contrast, we review the PCRA court's legal
          conclusions de novo.

Commonwealth v. Reyes-Rodriguez, 111 A.3d 775, 779 (Pa. Super. 2015)

(citations omitted).

       Maisey’s claims allege the ineffective assistance of trial counsel.   To

obtain relief under the PCRA premised on a claim that counsel was ineffective,

a petitioner must establish, by a preponderance of the evidence, that counsel's

ineffectiveness so undermined the truth-determining process that no reliable

adjudication of guilt or innocence could have taken place. Commonwealth

v. Johnson, 966 A.2d 523, 532 (Pa. 2009).                  “Generally, counsel’s

performance is presumed to be constitutionally adequate, and counsel will

only be deemed ineffective upon a sufficient showing by the petitioner.” Id.

This requires the petitioner to demonstrate that: (1) the underlying claim is
____________________________________________


3Maisey was represented by two attorneys during the pertinent proceedings.
For ease of discussion, our use of trial counsel refers to one or both.


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of arguable merit; (2) counsel had no reasonable strategic basis for his or her

action or inaction; and (3) counsel’s act or omission prejudiced the petitioner.

Id. at 533.

      Maisey first argues that trial counsel was ineffective for advising him to

enter a guilty plea based upon erroneous advice.             Regarding claims of

ineffectiveness in relation to the entry of plea, we note:

         Ineffective assistance of counsel claims arising from the plea
         bargaining-process are eligible for PCRA review. Allegations
         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 into 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.

             The standard for post-sentence withdraw of guilty pleas
         dovetails with the arguable merit/prejudice requirements
         for relief based on a claim of ineffective assistance of plea
         counsel, . . . under which the defendant must show that
         counsel’s deficient stewardship resulted in a manifest
         injustice, for example, by facilitating the entry of an
         unknowing, involuntary, or unintelligent plea. This standard
         is equivalent to the “manifest injustice” standard applicable
         to all post-sentence motions to withdraw a guilty plea.

Commonwealth v. Kelley, 136 A.3d 1007, 1012-13 (Pa. Super. 2016)

(citations omitted).

      Moreover, “[o]ur law presumes that a defendant who enters a guilty

plea was aware of what he was doing,” and “[h]e bears the burden of proving

otherwise.”   Commonwealth v. Pollard, 832 A.2d 517, 523 (Pa. Super.

2003) (citations omitted).


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             The longstanding rule of Pennsylvania law is 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. A person who elects to plead guilty is
          bound by the statements he makes in open court while
          under oath and may not later assert grounds for
          withdrawing the plea which contradict the statements he
          made at his plea colloquy.

Id. On appeal, this Court evaluates the adequacy of the plea colloquy and

the voluntariness of the resulting plea by looking at the totality of the

circumstances.     Commonwealth v. Yeomans, 24 A.3d 1044, 1047 (Pa.

Super. 2011).

      With these standards in mind, we address Maisey’s first ineffectiveness

claim. At the PCRA hearing, Maisey testified that, based on discussions with

trial counsel, he believed that all of his sentences would be imposed

concurrently. Contrarily, trial counsel testified that he never made any such

representation and, that the trial court ran the majority of the sentences

concurrent to the first four sentences that were imposed consecutively.

      In rejecting this claim, the PCRA court first noted that Maisey’s PCRA

hearing testimony contradicted the answers he gave in both the oral and

written   guilty   plea   colloquies.   Specifically,   at   these   times    Maisey

acknowledged that no promises had been made and that the trial court could

impose each sentence consecutively. See N.T., 8/27/21, at 24. Additionally,

as a matter of credibility, the PCRA court believed trial counsel’s version of

the   contested facts.       We   cannot   disturb this      determination.     See

Commonwealth v. Harmon, 738 A.2d 1023, 1025 (Pa. Super. 1999)


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(explaining that when a PCRA court’s determination of credibility is supported

by the record, it cannot be disturbed on appeal).           Thus, Maisey’s first

ineffectiveness claim fails.

      In his remaining claims, Maisey asserts trial counsel was ineffective for

failing to file a motion to reconsider his sentence and a direct appeal. At the

PCRA hearing, Maisey testified that he wished to pursue both and ultimately

filed a pro se reconsideration motion. Trial counsel testified that, although

Maisey did ask him to file a motion for reconsideration of sentence, counsel

advised against pursuing it, because the filing of the motion could work to his

detriment. According to counsel, the sentencing scheme adopted by the trial

court provided mitigation that counsel thought may be reconsidered by the

court. Counsel testified that Maisey never requested an appeal.

      Once again, the PCRA court found trial counsel’s version of the facts to

be more credible:


             It is specifically found that [trial counsel] were effective
         in their representation of [Maisey]. [Maisey] got the benefit
         of his bargain in being granted four consecutive sentences
         in the mitigated range and seven sentences that were
         concurrent.

                                      ***

             It is found as a matter of fact, as a result of [trial
         counsel’s] testimony that no direct appeal was requested.
         It is found, as a matter of fact, that [Maisey’s] guilty plea
         was knowing and voluntary.          There were quite direct
         admonitions at the beginning of the guilty plea hearing
         telling [Maisey] that it had to be knowing and voluntary and
         that the [trial court] was inquiring into those issues very
         directly and that the [trial court] would not accept his guilty

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        plea unless we were convinced that it was knowing and
        voluntary. We were convinced that it was knowing and
        voluntary and we continue to be convinced that it was
        knowing and voluntary.

PCRA Court’s “Re-Sentence” Order, 9/7/21, at unnumbered 1-2.

     Our review of the record supports the PCRA court’s credibility

determinations. Harmon, supra. We further note that at the conclusion of

the evidentiary hearing, the PCRA court stated that, had a motion for

reconsideration been filed, the court would have denied it without a hearing.

See N.T. 8/27/21, at 24. Thus, Maisey is unable to establish prejudice. See

generally, Commonwealth v. Reaves, 923 A.2d 1119 (Pa. 2007).

     In sum, for the foregoing reasons, the PCRA court correctly denied

Maisey’s petition. Thus, we concur with PCRA counsel’s assessment of the

present appeal as frivolous. We therefore grant counsel’s motion to withdraw

and affirm the order denying Maisey post-conviction relief.

     Motion to withdraw granted. Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/13/2022




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