J-S58005-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DR. BARRY L. BENDER,
Appellant No. 674 WDA 2013
Appeal from the PCRA Order April 2, 2013
in the Court of Common Pleas of Blair County
Criminal Division at No.: CP-07-CR-0000301-2002
BEFORE: GANTMAN, P.J., BENDER, P.J.E., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED DECEMBER 08, 2014
Appellant, Dr. Barry L. Bender, appeals from the court’s denial of his
counseled fifth amended version of his first petition filed pursuant to the
Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.
The PCRA court summarized the procedural history of this case as
follows:
On October 20, 2003, [Appellant] entered a guilty plea[ 1]
before Judge Milliron of the Blair County Court of Common Pleas
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
Appellant negotiated a guilty plea to two counts of involuntary deviate
sexual intercourse, one count of prescribing or dispensing medication outside
the bounds of accepted medical practice, one count of criminal conspiracy to
deliver a controlled substance, one count of corruption of minors, one count
of selling or furnishing liquor, and one count of criminal solicitation. See 18
Pa.C.S.A. § 3123(a)(7); 35 P.S. §§ 780-113(a)(14) and (30); 18 Pa.C.S.A.
§§ 6301(a)(1), 6310.1(a), and 902, respectively.
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pursuant to a plea agreement. The incarceration negotiated was
agreed to be a term of [ten] to [twenty] years in a state
correctional institution. A verbal colloquy of [Appellant] was
conducted on October 20th including [Appellant] submitting an
[eleven]-page written colloquy form in support of his plea and
the plea agreement. By further agreement, sentencing was
intended to be scheduled approximately [sixty] days from the
date the plea was taken. Consistent with that understanding, a
sentencing hearing was scheduled for December 12, 2003.
However, in the interim on December 2, 2003, [Appellant]
(having discharged Attorney Dickey almost immediately
following the guilty plea proceeding) sought to withdraw his plea
by petition filed through new counsel[,] Attorney Bryan Walk.
The petition to withdraw his guilty plea was heard on December
12, 2003, and denied by the [trial] [c]ourt which then imposed a
sentence consistent with the plea agreement. The [trial]
[c]ourt’s decision to deny withdrawal of the guilty plea was
appealed to the Superior Court of Pennsylvania[,] which Court
on December 10, 2004, entered a [ten]-page memorandum
opinion affirming the decision by the [trial court] to deny
[Appellant’s] attempt to withdraw his plea of guilty. [(See
Commonwealth v. Bender, 318 WDA 2004, unpublished
memorandum at *5 (Pa. Super. filed Dec. 10, 2004).] The
record was remanded to the [trial court] on December 30, 2005.
The original PCRA petition was filed by [Appellant] pro se on
March 17, 2006. As the record reflects, the PCRA petition has
been amended [by counsel] on a number of occasions with the
final amendment occurring on February 23, 2010.
(PCRA Court Opinion, 9/27/11, at 2-3).
On March 5, 2011, the PCRA court held an argument related to the
scope of the PCRA hearing. The court, on September 27, 2011, issued an
order and opinion identifying only Appellant’s claims for bias of the trial
judge, and ineffectiveness of counsel in advising Appellant to enter a guilty
plea and waive a pre-sentence investigation (PSI) as those issues that
required a hearing; Appellant’s remaining challenges were denied.
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On February 16, 2012, the PCRA court held a hearing on the claim of
ineffectiveness of counsel concerning the waiver of a PSI.2 The PCRA court,
on November 19, 2012, held a hearing on the claim of trial judge bias. On
April 2, 2013, the PCRA court issued an order and opinion denying the claim.
Appellant timely appealed on April 19, 2013.3 On November 13, 2013, this
Court remanded this case for the limited purpose of allowing newly
appointed counsel to review the petition in order to prepare Appellant’s
brief.4
Appellant raises the following issues for our review:
I. Whether the trial court erred in finding the Appellant was
in a proper state of mind when he entered his plea?
II. Whether the trial court erred in finding the [t]rial [j]udge
did not have a bias against the Appellant based on the use of the
Appellant in his judicial campaign ads?
III. Whether the trial court erred in finding that Appellant’s
prior counsel was not ineffective in failing to file a motion to
withdraw guilty plea (on the basis that the Appellant was not in a
proper state of mind at the time of the plea)?
____________________________________________
2
The court issued an order and opinion on June 12, 2012 denying
Appellant’s claim. Appellant has not appealed the PCRA court’s
determination on this issue.
3
Pursuant to the court’s order, Appellant filed a timely Rule 1925(b)
statement on May 9, 2013. The court entered its Rule 1925(a) opinion on
June 19, 2013 relying on the reasons set forth in the September 27, 2011,
June 12, 2012, and April 2, 2013 opinions. See Pa.R.A.P. 1925.
4
The court appointed current counsel on September 3, 2013.
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IV. Whether the trial court erred in finding that Appellant’s
prior counsel was not ineffective in failing [to file] a post
sentence motion regarding a sentence that did not conform to
the plea agreement?
V. Whether the trial court erred in finding that [Appellant’s]
prior counsel was not ineffective in failing to request a
continuance when he was openly unprepared?
(Appellant’s Brief, at 4).5
Our standard of review is well-settled:
When reviewing the propriety of an order granting or
denying PCRA relief, this Court is limited to determining whether
the evidence of record supports the determination of the PCRA
court and whether the ruling is free of legal error. Great
deference is granted to the findings of the PCRA court, and these
findings will not be disturbed unless they have no support in the
certified record.
Commonwealth v. Rachak, 62 A.3d 389, 391 (Pa. Super. 2012), appeal
denied, 67 A.3d 796 (Pa. 2013) (citations omitted).
A PCRA petitioner is eligible for relief if the claim is cognizable under
the PCRA. See 42 Pa.C.S.A. § 9543. Cognizable claims include
constitutional violations and ineffectiveness of counsel that undermine the
truth-determining process. See 42 Pa.C.S.A. § 9543(a)(2)(i) and (ii).
In his first issue, Appellant claims that a violation of his due process
rights occurred when the trial court failed to find that he had a decreased
mental capacity at the time he entered his plea. (See Appellant’s Brief at
12-15). This issue is waived.
____________________________________________
5
Appellant has reordered issues four and five in his argument. Therefore,
we will address his issues in the order he has argued them.
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It is well-settled that:
[a]n issue is previously litigated if the highest appellate court in
which appellant could have had review as a matter of right has
ruled on the merits of the issue. An issue is waived if appellant
could have raised it but failed to do so before trial, at trial, . . .
on appeal or in a prior state post-conviction proceeding.
Commonwealth v. Fears, 86 A.3d 795, 803-04 (Pa. 2014) (citations and
quotation marks omitted); see also 42 Pa.C.S.A. §§ 9543(a)(3) and 9544.
Here, the record reflects that Appellant’s assertion that he was not in a
proper state of mind due to medication and poor health at the time he
entered his plea is not included in his direct appeal of the trial court’s denial
of his motion to withdraw his guilty plea. (See Bender, supra at *5
(“Appellant presents one question for our review: Did the trial court err in
failing to grant Appellant’s motion to withdraw guilty plea filed prior to the
imposition of sentence when the Appellant demonstrated a fair and just
reason why he should be permitted to do so and the Commonwealth was not
substantially prejudiced?” (capitalization removed))). Accordingly,
Appellant’s first issue is waived. See Fears, supra at 803-04; 42 Pa.C.S.A.
§§ 9543(a)(3) and 9544.
Moreover, his claim would not merit relief.
A guilty plea is knowingly entered if the “defendant is aware of his
rights and the consequences of his plea.” Commonwealth v. Prendes, 97
A.3d 337, 352 (Pa. Super. 2014) (citation omitted); see also Pa.R.Crim.P.
590. Furthermore, it is well-settled that “a defendant who entered a guilty
plea [is presumed to be] aware of what he [is] doing, and the defendant
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bears the burden of proving otherwise.” Prendes, supra at 352 (citation
omitted).
Here, the PCRA court found that:
. . . [upon review of] the transcripts of all of [the] proceedings[,]
[t]here is nothing in any of them which supports (even remotely)
the “after the fact” position that [Appellant] was actually
incompetent in any particular. The complete absence of support
is critical. . . . Reading the record, we find no support from the
guilty plea proceeding itself or (perhaps even more importantly)
from [Appellant’s] testimony almost two months later before
[the trial] court on December 12, 2003, at the proceeding to
withdraw his plea.
(PCRA Ct. Op., 9/27/11, at 12).
Furthermore, the record reflects that Appellant repeatedly affirmed
that he was not impaired and understood the plea. (See Written Guilty Plea,
10/24/03, at 2-11; N.T. Guilty Plea Hearing, 10/20/03, at 7-13, 16-18).
Accordingly, the record supports the PCRA court’s denial of relief on
this claim. See Prendes, supra at 352.
In his second issue, Appellant claims that the trial court had a bias
against him based on the use of Appellant in his judicial campaign ads.
(See Appellant’s Brief, at 15-18). We disagree.
It is well-settled that:
. . . simply because a judge rules against a defendant does not
establish any bias on the part of the judge against that
defendant. If the appellate court determines that the party
alleging judicial bias received a fair trial, then the allegation of
judicial bias is not borne out. See Reilly v. SEPTA, 507 Pa.
204, 489 A.2d 1291 (1985).
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Commonwealth v. Travaglia, 661 A.2d 352, 367 (Pa. 1995), cert. denied,
516 U.S. 1121 (1996).
Here, Appellant argues that “[u]nder Canon 2 of the Code of Judicial
Conduct, the precept governing judicial conduct is the avoidance of not only
actual impropriety but also the appearance of impropriety.” (Appellant’s
Brief, at 16) (citing Commonwealth v. Perry, 364 A.2d 312 (Pa. 1976)).
In further support of his argument, Appellant quotes Commonwealth v.
Darush, 459 A.2d 727, 732 (Pa. 1983) to claim that “[d]isqualification of a
judge is mandated whenever ‘a significant minority of the law community
could reasonably question the court’s impartiality.’” (Appellant’s Brief, at
16). Appellant’s argument is misguided.
We note, “enforcement of the Code of Judicial Conduct is beyond the
jurisdiction of this Court.” Commonwealth v. Kearney, 92 A.3d 51, 62
(Pa. Super. 2014), appeal denied, 385 MAL 2014, 386 MAL 2014 (Pa. filed
Sept. 30, 2014) (citing Reilly, supra at 1298).
Furthermore, the cases Appellant cites are distinguishable.
In Perry, supra, our Supreme Court determined that the trial judge’s
refusal to disqualify himself did not prejudice the appellant where the trial
judge knew the victim professionally and attended his funeral. See Perry,
supra at 317-18.
In Darush, supra, despite finding no evidence of bias by the trial
judge, our Supreme Court remanded for resentencing in consideration of the
trial judge’s professed inability to admit or deny the appellant’s claim that,
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during the trial judge’s election campaign for judgeship, the appellant, who
openly opposed the campaign, made derogatory remarks to the trial judge’s
campaign manager that the trial judge may have overheard. See Darush,
supra at 732.
Here, Appellant’s argument is not supported by any citation to
pertinent controlling authority. Accordingly, Appellant has failed to meet his
burden of proving “a significant minority of the law community could
reasonably question the court’s impartiality.” Id.; see also Pa.R.A.P.
2119(a)-(c).
Moreover, upon our independent review, the record reflects that:
Judge Milliron did use [Appellant’s] case in his campaign
for judge in 2005. However, [Judge Milliron] does not recall the
nature of the advertisements but believes it was in print. He
unsuccessfully attempted to locate his commercials and/or
advertisements before the November 19, 2012, hearing.
* * *
Judge Milliron had no further involvement after he denied
[Appellant’s] request to withdraw his guilty plea. He recused
himself from consideration of the PCRA Petition filed by
[Appellant].
Judge Milliron denied having any bias or prejudice for or
against [Appellant]. He had no thoughts of running for a full-
term when he was presiding over [Appellant’s] case. Further, he
testified that whatever was contained in his campaign material
was factually accurate.
(PCRA Ct. Op., 4/02/13, at 3-4 (record citations omitted); see also N.T.
PCRA Hearing, 11/19/12, at 14-17, 21, 26-28).
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Additionally, the PCRA court explained the basis for its decision as
follows:
[Appellant’s] claim there was the appearance of
impropriety during the progress of his case when Judge Milliron
was presiding is totally groundless. How Judge Milliron’s
decision to run for a full term on the [b]ench in 2005 and the
use of material in his political campaign referencing [Appellant]
is evidence of impropriety or unfairness in the 2003 proceedings
is beyond this [c]ourt’s understanding.
(PCRA Ct. Op. 4/02/13, at 6-7). Upon review, we agree and conclude that
the court’s determination that the trial judge did not have a bias against
Appellant is supported by the record.
Accordingly, because Appellant has failed to establish that he did not
receive a fair trial, we conclude that the PCRA court properly found that the
trial judge did not have a bias against Appellant. See Travaglia, supra, at
367. Appellant’s second issue lacks merit.
Appellant argues in his remaining three claims that he received
ineffective assistance of counsel. (See Appellant’s Brief at 19-28). We
disagree.
It is well-settled that “[a] criminal defendant has the right to effective
counsel during a plea process as well as during trial.” Commonwealth v.
Rathfon, 899 A.2d 365, 369 (Pa. Super. 2006) (citation omitted). Counsel
is presumed effective, and an appellant bears the burden to prove otherwise.
See Commonwealth v. Bennett, 57 A.3d 1185, 1195 (Pa. 2012). A PCRA
petitioner must demonstrate that counsel’s performance was deficient and
that such deficiency prejudiced him. See Strickland v. Washington, 466
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U.S. 668, 687 (1984). Pennsylvania has further refined the Strickland test
into a three-prong inquiry. An appellant must demonstrate that: (1) his
underlying claim is of arguable merit; (2) counsel had no reasonable
strategic basis for his action or inaction; and (3) the appellant suffered
actual prejudice as a result. See Commonwealth v. Pierce, 527 A.2d 973,
975 (Pa. 1987). A failure to satisfy any prong of the ineffective assistance of
counsel test will require rejection of the claim. See Commonwealth v.
Spotz, 84 A.3d 294, 311 (Pa. 2014). Moreover, deference is given to the
PCRA court’s credibility determination if supported by the record. See
Spotz, supra at 312-13.
Where, as here, Appellant pleaded guilty, “claims of ineffectiveness in
connection with a guilty plea will provide a basis for relief only if the
ineffectiveness caused an involuntary or unknowing plea.” See
Commonwealth v. McCauley, 797 A.2d 920, 922 (Pa. Super. 2001).
Furthermore, it is well-settled that, where the record shows that the trial
court conducted a thorough guilty plea colloquy and the defendant
understood his rights and the nature of the charges against him, the plea is
voluntary. See id. (rejecting challenge to plea agreement where trial court
conducted plea colloquy and defendant understood charges). We look to the
totality of the circumstances to determine whether the defendant understood
the nature and consequences of his plea. See id.
A criminal defendant is bound by the statements he made during his
plea colloquy. See Commonwealth v. Muhammad, 794 A.2d 378, 384
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(Pa. Super. 2002). Thus, a defendant cannot assert grounds for
withdrawing the plea that contradicts statements made at that time. See
Commonwealth v. Stork, 737 A.2d 789, 790-91 (Pa. Super. 1999), appeal
denied, 764 A.2d 1068 (Pa. 2000). Further, “[t]he law does not require that
appellant be pleased with the outcome of his decision to enter a plea of
guilty: ‘All that is required is that [appellant’s] decision to plead guilty be
knowingly, voluntarily and intelligently made.’” Commonwealth v. Yager,
685 A.2d 1000, 1004 (Pa. Super. 1996) (en banc), appeal denied, 701 A.2d
577 (Pa. 1997) (citation omitted).
In his third issue, Appellant claims that he received ineffective
assistance of counsel for counsel’s failure to file a motion to withdraw his
guilty plea on the basis that Appellant was not in a proper state of mind.
(See Appellant’s Brief, at 19). Specifically, Appellant argues that counsel
failed to present testimony of his incapacity at the time he entered his guilty
plea and instead focused on whether the Commonwealth would be
prejudiced. (See id. at 19-22). We disagree.
Our independent review of the record reveals that this Court
addressed the merits of Appellant’s motion to withdraw his guilty plea on
direct appeal. (See Bender, supra at *7, *9 (holding that “the assertion of
innocence may constitute a fair and just reason for the pre-sentence
withdrawal of the plea” but that “permitting withdrawal of the plea would
result in substantial prejudice to the Commonwealth.”)). Appellant’s third
issue has not been previously litigated because it is framed in terms of
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ineffective assistance of counsel. See Commonwealth v. Martin, 5 A.3d
177, 185 (Pa. 2010), cert. denied, 131 S.Ct. 2960 (2011) (citing
Commonwealth v. Collins, 888 A.2d 564 (Pa. 2005)).
Here, Appellant signed a written plea colloquy and engaged in an oral
colloquy with the trial court. (See Written Guilty Plea, 10/24/03, at 11; N.T.
Guilty Plea Hearing, 10/20/03, at 7-19). Appellant understood the charges
against him, the nature of his pleas, his rights, and what rights he was
giving up. (See Written Guilty Plea, 10/24/03, at 1-11; N.T. Guilty Plea
Hearing, 10/20/03, at 8-19). Appellant did indicate that he had consumed
multiple prescription medications within forty-eight hours of completing the
written plea colloquy but they were “regular medications” and did not affect
his ability to understand his plea. (N.T. Guilty Plea Hearing, 10/20/03, at 8;
see also Written Guilty Plea, 10/24/03, at 3).
Furthermore, the PCRA court found that the trial court observed, at
the December 12, 2003 hearing on Appellant’s motion to withdraw his plea,
that Appellant “clearly demonstrated his competence by far more than a
preponderance of the evidence.” (PCRA Ct. Op., 9/27/11, at 16).
Therefore, we conclude that the PCRA court properly found that
Appellant failed to meet his burden of pleading and proving all three prongs
of the Pierce test for ineffective assistance of counsel and Appellant’s third
issue lacks merit.
In his fourth issue, Appellant claims that he received ineffective
assistance of counsel because counsel was unprepared, was “standing in” for
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recently retained counsel, and argued that the Commonwealth would not
face substantial prejudice instead of “that [Appellant] could not have entered
a knowing, willing, [and] involuntary plea”; which resulted in a constructive
denial of counsel. (Appellant’s Brief, at 25). This issue is waived.
“Issues not included in the [Rule 1925(b) statement] and/or not raised
in accordance with the provisions of this paragraph (b)(4) are waived.”
Pa.R.A.P. 1925 (b)(4)(vii); see also Commonwealth v. Arrington, 86
A.3d 831, 849 (Pa. 2014), cert. denied, 2014 WL 4387304 (U.S.).
Here, Appellant’s claim that he was constructively denied counsel is
not included in his Rule 1925(b) statement. (See Appellant’s Concise
Statement of Errors, 5/09/13, at 1-2). Instead, he states that counsel
“fail[ed] to request a continuance request when he was openly unprepared.”
(Id. at 2). Accordingly, Appellant’s fourth issue is waived. See Pa.R.A.P.
1925 (b)(4)(vii).
Moreover, his claim would not merit relief.
Here, the record reflects that counsel renewed the continuance request
at the start of the hearing, which the trial court denied. (See N.T. Petition
to Withdraw Guilty Plea/ Sentencing, 12/12/03, at 6). Counsel proceeded to
represent Appellant and the trial court “found neither [Appellant] nor his
witnesses . . . to be credible.” (Id. at 110; see also PCRA Ct. Op., 9/27/11,
at 20).
Accordingly, the record supports the PCRA court’s denial of relief on
this claim.
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In his final issue, Appellant claims that he received ineffective
assistance of counsel based on counsel’s failure to file a post sentence
motion objecting to the additional twenty-two years of probation as
inconsistent with the plea agreement. (See Appellant’s Brief, at 26-28). We
disagree.
Here, the record reflects that Appellant’s plea agreement contains no
provisions regarding probation. (See Written Guilty Plea, 10/24/03, at 1-
11). Appellant understood that the trial court “within [its] discretion . . .
will[] add a period of probation that will be at the conclusion of whenever
you’re released from incarceration.” (N.T. Guilty Plea Hearing, 10/20/03, at
10; see id. at 4, 16). Counsel did not object to the imposition of probation
at the sentencing hearing. (See N.T. Petition to Withdraw Guilty Plea/
Sentencing, 12/12/03, at 111-20).
Because the record confirms that there was no agreement on
probation, counsel could not be ineffective for failure to object to the
imposition of a term of probation.
Therefore, we conclude that the PCRA court properly found that
Appellant failed to meet his burden of pleading and proving all three prongs
of the Pierce test for ineffective assistance of counsel and Appellant’s final
issue lacks merit.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/8/2014
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Com. v. Bender, B.
Combined Opinion