Com. v. Fassnacht, C.

J-S52004-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
CLIFFORD LEE FASSNACHT, :
:
Appellant : No. 259 MDA 2017

Appeal from the PCRA Order December 8, 2016
in the Court of Common Pleas of Lancaster County,
Criminal Division, No(s): CP-36-CR-0000895-2015;
CP-36-CR-0002763-2007; CP-36-CR-0003473-2008;
CP-36-CR-0005913-2014

BEFORE: GANTMAN, P.J., LAZARUS and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.: FILED AUGUST 31, 2017

Clifford Lee Fassnacht (“Fassnacht”) appeals from the Order denying

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

See 42 Pa.C.S.A. §§ 9541-9546. We affirm.

In its Opinion, the PCRA court set forth the relevant factual and

procedural history, which we adopt for the purpose of this appeal. See

PCRA Court Opinion, 12/8/16, at 1-4.

The PCRA court denied Fassnacht’s Petition on December 8, 2016.

Fassnacht subsequently filed a timely Notice of Appeal and a court-ordered

Pa.R.A.P. 1925(b) Concise Statement of errors complained of on appeal.

On appeal, Fassnacht raises the following questions for our review:

I. Did the PCRA court err when it did not permit into evidence[,]
and did not consider[,] the report of Timothy Martin, D.O., Ph.D.
[(“Dr. Martin”),] when rendering its decision that [] Fassnacht
entered a knowing and intelligent plea?
J-S52004-17

II. Did the PCRA court err when it denied [Fassnacht’s PCRA
Petition] when it found that trial counsel provided effective
assistance of counsel[,] when trial counsel permitted []
Fassnacht to enter a plea the day after suffering a seizure?

III. Did the PCRA court err when it found that [] Fassnacht’s plea
was knowingly, voluntarily, and intelligently entered?

Brief for Appellant at 4 (issues renumbered).

Our standard of review of a PCRA court’s denial of a
petition for post[-]conviction relief is well-settled: We must
examine whether the record supports the PCRA court’s
determination, and whether the PCRA court’s determination is
free of legal error. The PCRA court’s findings will not be
disturbed unless there is no support for the findings in the
certified record.

Commonwealth v. Franklin, 990 A.2d 795, 797 (Pa. Super. 2010)

(citation omitted).

In his first claim, Fassnacht argues that the PCRA court erred by failing

to consider Dr. Martin’s report regarding the effect of seizures on an

individual’s ability to think, concentrate and function. Brief for Appellant at

14-15.

Fassnacht failed to explain the relevance of the report, or to cite any

relevant case law concerning this issue. Because Fassnacht failed to

adequately develop his first claim, it is waived. See Pa.R.A.P. 2119(a)

(stating that the argument shall include “such discussion and citation of

authorities as are deemed pertinent.”); see also Commonwealth v.

Samuel, 102 A.3d 1001, 1005 (Pa. Super. 2014) (concluding that appellant

-2-
J-S52004-17

waived his claim by failing to adequately develop his argument or provide

citation to and discussion of relevant authority).1

In his second claim, Fassnacht asserts that the PCRA court erred in

concluding that his plea counsel provided effective assistance at a time when

Fassnacht was not competent to enter a guilty plea. Brief for Appellant at

12. Fassnacht cites his testimony at the PCRA hearing, during which he

stated that he did not remember talking to his counsel on the morning of the

guilty plea hearing, and he did not recognize his signature on the written

plea colloquy. Id. at 13. Fassnacht argues that his counsel was aware that

Fassnacht had a seizure the day prior to the guilty plea hearing, and that

counsel’s failure to stop the proceedings constituted ineffective assistance.

Id. at 14.

In its Opinion, the PCRA court set forth the relevant law, addressed

Fassnacht’s claim, and concluded that it lacks merit. See PCRA Court

Opinion, 12/8/16, at 4-13. Because we conclude that the PCRA court’s

determinations are supported by the record and free of legal error, we affirm

on this basis as to Fassnacht’s second claim. See id. We additionally note

that Fassnacht does not allege that, had his counsel been effective, he would

1
Moreover, as the PCRA court observed, Dr. Martin failed to identify the
facts from which he based his opinion. Moreover, Dr. Martin’s letter did not
address Fassnacht’s particular circumstances, and instead, merely described
common complaints following a seizure. See PCRA Court Opinion, 12/8/16,
at 12 n.9; see also Pa.R.E. 705 (stating that “[i]f an expert states an
opinion[,] the expert must state the facts or data on which the opinion is
based.”).

-3-
J-S52004-17

not have pled guilty. See Commonwealth v. Timchak, 69 A.3d 765, 770

(Pa. Super. 2013) (stating that with regard to the prejudice prong of an

ineffective assistance of counsel claim, “where an appellant has entered a

guilty plea, the appellant must demonstrate it is reasonably probable that,

but for counsel’s errors, he would not have pleaded guilty and would have

gone to trial.”) (citation and quotation marks omitted). Thus, Fassnacht is

not entitled to relief on his second claim.

In his third claim, Fassnacht contends that the PCRA court erred in

concluding that his guilty plea was knowingly, voluntarily, and intelligently

entered. Brief for Appellant at 15-16. Fassnacht argues that if his

“testimony is taken in conjunction with the report of Dr. Martin, it is

evidence that [] Fassnacht’s plea was not knowing, intelligent, or voluntary.”

Id. at 16.

Fassnacht failed to include citation to and discussion of relevant legal

authorities in support of his contention, with the exception of one citation

instructing this Court to consider the totality of the circumstances. See Brief

for Appellant at 16. Instead, Fassnacht baldly claims that his guilty plea was

involuntarily entered, without citing any evidence in the record to support

his claim. Accordingly, his claim is waived. See Pa.R.A.P. 2119(a); see

also Samuel, supra. We additionally point to the PCRA court’s analysis of

Fassnacht’s ineffectiveness claim, wherein the court addressed the

underlying claim that Fassnacht’s guilty plea was not knowingly, intelligently,

-4-
J-S52004-17

and voluntarily entered, and affirm on this basis as to Fassnacht’s third

claim. See PCRA Court Opinion, 12/8/16, at 7-13 (concluding that

Fassnacht’s guilty plea was knowingly, intelligently, and voluntarily entered,

and that Fassnacht had not satisfied his burden of proving the he was

suffering from a mental impairment that rendered the plea involuntary).

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/31/2017

-5-
 Circulated 08/10/2017 12:02 PM

IN THE COURT OF COMMON PLEAS OF LANCASTER COUNTY, PENNSYLVANIA
CRIMINAL

COMMONWEALTH OF PENNSYLVANIA

v. Nos. 2763-2007, 3473-2008,
5913-2014, 0895-2015
CLIFFORD L. FASSNACHT

OPINION

BY: ASHWORTH, J., DECEMBER 8, 2016

Before the Court is Clifford L. Fassnacht's amended petition pursuant to the Post

Conviction Collateral Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. Following a

hearing in this matter, the amended petition will be denied.

I. Background
n :r.-:a n
g :x O
By Information docketed at No. 5913-2014, Petitioner was charged wiiii twi> §
:-< .r:- uj
counts of burglary, two counts of criminal conspiracy to burglary, and three o:iunt~of

theft by unlawful taking.1 Between September 23, 2014 and October 13, 2014,

Petitioner and one or two accomplices entered three different Lancaster County

properties and stole welding cable and copper wiring valued at $1,900.00. On all three

occasions, witnesses observed the co-conspirators and the vehicle being driven by

them, a Jeep Cherokee. Two women specifically identified Petitioner from photo

lineups, after having been engaged in conversation with him while his accomplice stole

their personal property.

118
Pa.C.S.A. § 3502(a)(4), 18 Pa.C.S.A. § 903, and 18 Pa.C.S.A. § 3921(a),
respectively.
 By Information docketed at No. 0895-2015, Petitioner was charged with burglary,

criminal conspiracy to burglary, robbery, theft by unlawful taking, and criminal mischief.2

On October 14, 2014, Petitioner and two accomplices illegally entered a work shop at

Elizabeth Farms and stole scrap metal valued at approximately $100.00. Upon being

confronted by two employees in their pick-up truck, the co-conspirators rammed their

Jeep Cherokee into the driver's side of the truck and fled the scene. Petitioner was

identified by the victims as the male who was inside the building and exited carrying the

stolen property.

On June 3, 2015, Petitioner entered a negotiated plea at Docket No. 5913-2014

to a sentence of three to six years' incarceration. (Notes of Testimony (N.T.), Guilty

Plea/PV/Sentencing at 11.) At No. 0895-2015, Petitioner pleaded guilty to all charges

except robbery for a sentence of 33 to 66 months' incarceration.3 (Id. at 10-11.) At that

time, Petitioner was also sentenced on two probation/parole violations at Docket Nos.

3473-2008 and 2763-20074 to a term of one to two years' incarceration, with those

sentences to run concurrent with one another but consecutive to the negotiated plea

agreements at Nos. 5913-2014 and 0895-2015, for an aggregate sentence of 45 to 90

months' incarceration. (Id. at 13.)

218
Pa.C.S.A. § 3502(a)(4), 18 Pa.C.S.A. § 903, 18 Pa.C.S.A. § 3701(a)(1)(iv), 18
Pa.C.S.A. § 3921(a), and 18 Pa.C.S.A. § 3304(a)(5), respectively.
3The
robbery charge was no/le prossed. (N.T., Guilty Plea/PV/Sentencing at 2.)
4At
Docket No. 3473-2008, Petitioner entered a plea of guilty on December 11, 2009, to
the charges of burglary, theft by unlawful taking and criminal trespass. On the same date,
Petitioner pleaded guilty at Docket No. 2763-2007 to the charges of theft by unlawful taking,
receiving stolen property, criminal conspiracy (two counts), owning, operating or conducting a
· chop shop, possessing altered or illegally obtained property, and selling vehicle obtained from
chop shop.

2
 At the conclusion of the sentencing hearing, I informed Petitioner of his rights to

file post-sentence motions within ten days and to file an appeal to the Superior Court of

Pennsylvania within thirty days. (N.T., Guilty Plea/PV/Sentencing at 14-15.) Petitioner

filed neither post sentence motions nor a direct appeal to the Superior Court from the

judgment of sentence imposed on June 3, 2015. Petitioner was represented at the

guilty plea and sentencing hearing by the Lancaster County Office of the Public

Defender, specifically, Douglas A. Conrad, Esquire.

On October 1, 2015,5 Petitioner filed a timely6 prose petition for post conviction

collateral relief which claimed ineffective assistance of counsel which so undermined

the truth-determining process that no reliable adjudication of guilt or innocence could

have taken place. Pursuant to Rule 904(A) of the Pennsylvania Rules of Criminal

Procedure, Dennis C. Dougherty, Esquire, was court-appointed on October 14, 2015, to

represent Fassnacht on his collateral claims and was granted leave to file an amended

petition by December 18, 2015. An additional 60 days was requested by counsel to

complete his review of the case, and the request was granted by the Court.

5The
pleading is deemed filed on the date of mailing, October 1, 2015, rather than the
date of docketing, October 6, 2015, pursuant to the "prisoner mailbox rule." Commonwealth v.
Crawford, 17 A.3d 1279, 1281 (Pa. Super. 2011) ("Under the prisoner mailbox rule, we deem a
prose document filed on the date it is placed in the hands of prison authorities for mailing.").
6The
PCRA mandates that all petitions for post conviction relief be filed within one year
of the date upon which the judgment becomes final. Commonwealth v. Lawson, 90 A.3d 1, 5
(Pa. Super. 2014). For purposes of the PCRA, a judgment of sentence becomes final at the
conclusion of direct review. 42 Pa.C.S.A. § 9545(b)(3). See also Commonwealth v. Jones, 54
A.3d 14, 17 (Pa. Super. 2012). If a defendant does not file a direct appeal, his judgment of
sentence becomes final for PCRA purposes 30 days after imposition of sentence.
Commonwealth v. Brown, 767 A.2d 576, 578 n.2 (Pa. Super. 2001). Since Fassnacht did not
file an appeal, his judgment of sentence became final 30 days after June 3, 2015. Fassnacht,
therefore, had until July 3, 2016, to file his PCRA motion. As such, his motion is timely.

3
 On February 22, 2016, Fassnacht filed an amended petition which solely

challenged the effective assistance of trial counsel. The Commonwealth filed a timely

response, acknowledging the need for a hearing. Accordingly, an evidentiary hearing

was held on Fassnacht's amended petition on May 26, 2016, at which time testimony

was heard from Attorney Conrad and Petitioner. At the conclusion of the hearing,

PCRA Counsel requested that the record remain open so that he could have the

opportunity to submit a report addressing the effect that a seizure would have on an

individual, which was one of Petitioner's primary claims for PCRA relief. This request

was granted. On June 16, 2016, PCRA Counsel petitioned the Court for funds to obtain

the aforementioned expert's report, which was also granted.

On July 14, 2016, PCRA Counsel filed a motion to submit into evidence the

report and curriculum vitae of Timothy Martin, D.O., Ph.D. The Commonwealth

opposed the request to have Dr. Martin's report entered into evidence. On August 24,

2016, after considering Petitioner's motion, the Commonwealth's response, and oral

argument of counsel, the motion was denied and the record of the evidentiary hearing

was ordered closed. Briefs having been filed by the parties on October 11, 2016, and

November 10, 2016, this matter is ripe for disposition.

II. Eligibility for PCRA Relief

In order to prevail on a claim of ineffective assistance of counsel made in the

post conviction context, a defendant must overcome the presumption that counsel is

effective by establishing by a preponderance of the evidence that: the underlying claim

has arguable merit; trial counsel had no reasonable basis for proceeding as he did; and

4
the defendant suffered prejudice. See 42 Pa.C.S.A. § 9543(a)(2)(ii); Commonwealth

v. Spotz, 616 Pa. 164, 187, 47 A.3d 63, 76 (2012) (citing Commonwealth v. Pierce,

515 Pa. 153, 158-59, 527 A.2d 973, 975-76 (1987)). Furthermore, "[t]he entry of a

guilty plea constitutes a waiver of all defenses and defects except claims of lack of

jurisdiction, invalid guilty plea, and illegal sentence." Commonwealth v. Kennedy, 868

A.2d 582, 593 (Pa. Super. 2005). Fassnacht has not challenged the jurisdiction of this

Court or the legality of his sentence. Fassnacht does dispute, however, the validity of
.'
his guilty plea.

"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 an

involuntary or unknowing plea." Commonwealth v. Hickman, 799 A.2d 136, 141 (Pa.

Super. 2002) (citation omitted). See also 42 Pa.C.S.A. § 9543(a)(2)(iii). "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." Id. (citations and internal quotation marks omitted).

In assessing the voluntariness of a guilty plea, our Superior Court has noted that

"[t]he law does not require that [the defendant] be pleased with the outcome of his

decision to enter a plea of guilty; rather [a]II that is required is that [the defendant's]

decision to plead guilty be knowingly, voluntarily and intelligently made."

Commonwealth v. Brown, 48 A.3d 1275, 1277 (Pa. Super. 2012) (citations and

internal quotation marks omitted).

With regard to the voluntariness of a plea, a guilty plea colloquy
must affirmatively demonstrate the defendant understood what the

5
 plea connoted and its consequences. Once the defendant has
entered a guilty plea, it is presumed that he was aware of what he
was doing, and the burden of proving involuntariness is upon him.

Commonwealth v. Willis, 68 A.3d 997, 1002 (Pa. Super. 2013) (citations and internal

quotation marks omitted).

In determining whether a defendant entered into a plea of guilty knowingly,

voluntarily and intelligently, the PCRA court "is free to consider the totality of the

circumstances surrounding the plea, ... including, but not limited to, transcripts from

other proceedings, 'off-the-record' communications with counsel, and written plea

agreements." Commonwealth v. Allen, 557 Pa. 135, 146-47, 732 A.2d 582, 588-89

(1999). Moreover, "[a] defendant is bound by the statements made during the plea

colloquy, and a defendant may not later offer reasons for withdrawing the plea that

contradict statements made when he pied." Brown, 48 A.3d at 1277.

Ill. Discussion

Fassnacht claims his trial counsel unlawfully induced him to enter into a plea. In

support of this argument, he avers that: (1) defense counsel forced Petitioner to

proceed with the guilty plea the day after he suffered a seizure which rendered him

incapable of making a knowing and voluntary decision; and (2) defense counsel failed

to investigate Petitioner's potential defense. Additionally, Fassnacht contends that,

having entered an invalid plea, defense counsel then failed to file a petition to withdraw

the plea, and further failed to perfect an appeal upon request of Petitioner. For the

reasons that follow, Petitioner's claims of ineffective assistance of counsel must fail.

6
 A. Unknowing and Involuntary Plea

Initially, Fassnacht claims his guilty plea was unknowingly and involuntarily

entered as a result of his alleged incompetence based on the lingering effects of a

seizure suffered the day before his guilty plea. (Amended PCRA Petition at ffll 9-10.)

Petitioner further avers that defense counsel was aware of this seizure and should have

continued the plea to allow Petitioner to recover and "not be under the mental haze

caused by his seizure." (Id. at 1J 11.)

A well-settled principle in this Commonwealth is that "a defendant is presumed to

be competent to stand trial." Commonwealth v. Santiago, 579 Pa. 46, 67, 855 A.2d

682, 694 (2004). Furthermore, "the burden is on [the defendant] to prove, by a

preponderance of the evidence, that he was incompetent to stand trial." Id. In order to

meet this burden, a defendant must establish that he was either unable to understand

the nature of the proceedings against him or to participate in his own defense. Id. See

also 50 Pa.C.S.A. § 7402(a) (a defendant is deemed legally incompetent if he or she is

"substantially unable to understand the nature or object of the proceedings against him

or to participate and assist in his defense").

Our Superior Court has set forth the relevant standard to determine a

defendant's mental competency to enter a guilty plea as follows: whether "the

defendant comprehends the crime for which he stands accused, is able to cooperate

with his counsel in forming a rational defense, and has a rational and factual

understanding of the proceedings against him." Willis, 68 A.3d at 1002. This rule is

7
commonly applied to determine whether a defendant knowingly, voluntarily and

intelligently entered a plea of guilty.

I begin my analysis as to the voluntary, knowing and intelligent nature of

Fassnacht's plea by exarnininqthe totality of the circumstances surrounding the plea.

The record establishes that a lengthy and thorough guilty plea colloquy was conducted.

Fassnacht was advised of the charges against him and the elements of those offenses

as defined by the Crimes Code and the Pennsylvania Standard Jury Instructions

(Criminal) were explained to him. (N.T., Guilty Plea/PV/Sentencing at 4-5.) Fassnacht

was also advised that by pleading guilty he was waiving his rights to a jury trial, the

presumption of innocence, and other relevant attributes of procedural due process. (Id.

at 3-4.) He acknowledged that he understood that he was innocent until proven guilty,

he did not have to plead guilty, and that it was his choice to plead guilty. (Id.)

The maximum sentences and sentencing guidelines for each charge were also

reviewed with Fassnacht during the colloquy. (N.T., Guilty Plea/PV/Sentencing at 5-6.)

Fassnacht acknowledged that because of his "repeat felony offender" status he was

maxed out. (Id. at 7 .) Fassnacht stated that he understood that the maximum

sentence, if all the charges were sentenced consecutively, would be 56 years in jail and

a fine of $137,500.00. (Id. at 6.)

In addition to the colloquy in open court, I reviewed with Fassnacht the 7-page,

77-question written guilty plea "long form" completed by defense counsel. (N.T., Guilty

Plea/PV/Sentencing at 7.) In this document, Fassnacht manifested his understanding

of the offenses against him, the maximum sentences and the procedural due process

rights waived by a guilty plea. (Id.) He indicated that he reviewed the colloquy form

8
with his attorney and signed it. (Id.) Fassnacht had no questions of his attorney or of

the Court regarding the form. (Id.)

I also reviewed the factual basis of the plea, as summarized by Assistant District

Attorney Maria Cusick. (N.T., Guilty Plea/PV/Sentencing at 7-8.) Fassnacht admitted

to the facts recited by the prosecutor which formed the basis for the charges; thus,

defeating a claim of innocence. (Id. at 8.)

Lastly, the record establishes that Fassnacht's mental and physical health was

fully revealed at the guilty plea hearing. Attorney Conrad advised the Court:

... [Fassnacht] has a long history of drug addiction, which probably
goes along with his criminal record.
The last time he was in SCI he was diagnosed with a tumor. I'm
not sure if it is cancerous or not. He suffers from frequent seizures.
He just had one last night at LCP.

(N.T., Guilty Plea/PV/Sentencing at 8-9.7) When asked if he would like to make a

statement to the Court, Fassnacht referred only to his drug addiction and made no

mention of his seizures: "I've been fighting drug addiction since I was a kid. And I heard

a lot about the program doing good. I should have been in it 20 years ago." (Id. at 10.)

Fassnacht specifically acknowledged that "unfortunately" because of his addiction and

his prior criminal behavior, he was "going to be warehoused" for his newest charges.

(Id.)

Based upon the representations by Fassnacht, his attorney and the

Commonwealth, the negotiated guilty plea presented on Fassnacht's behalf was

7
Attorney Conrad testified that Petitioner instructed him to inform the Court of his alleged
seizure the night before the guilty plea hearing, and defense counsel complied. (N.T., PCRA
Hearing at 19-20.)

9
accepted. (N.T., Guilty Plea/PV/Sentencing at 10.) On review, considering all the

circumstances attendant to the plea, including the adequacy of the plea colloquy, and

Fassnacht's responses therein, and the representations by defense counsel, the guilty

plea was knowing, voluntary and intelligent, and was properly accepted.

Fassnacht, however, claims that his guilty plea is nonetheless invalid based on

the ineffective assistance of counsel. Specifically, Fassnacht now contends that,

despite what was said during the oral colloquy and what was specifically spelled out in

the written colloquy, it was not his intention to plead guilty and that counsel unlawfully

induced him to plead guilty when he was suffering from the adverse effects of a seizure

which took place the night before his guilty plea.

Fassnacht testified at the PCRA hearing that at the time of his plea he was

"dizzy" and did not know what he was doing. (N.T., Guilty Plea/PV/Sentencing at 36,

42.) He further claims to have no memory of going through the plea paperwork,

colloquy, or the guilty plea itself.8 (Id. at 39, 40.) Fassnacht, however, advanced no

evidence, besides his own self-serving and uncorroborated statements, that he was not

competent to proceed or that he did not understand the guilty plea proceedings

because of his alleged mental impairment. I find Fassnacht's testimony to not be

credible and in conflict with his testimony at the time of the guilty plea.

8Fassnacht
initially testified that Attorney Conrad did not go over the questions on the
written colloquy with him on June 3, 2015. (N.T., PCRA Hearing at 35.) On cross-examination,
however, Fassnacht noted that because his attorney "swore under oath that he went through
the paperwork with [him]," he would "have to assume" that Attorney Conrad did, in fact, review
the colloquy questions with him. (Id. at 44.)

10
 At the plea hearing, Fassnacht testified that it was his decision to waive a jury

trial and plead guilty, and that no promises, threats or guarantees had been made to or

against him to force him to plead guilty. (N.T., Guilty Plea/PV/Sentencing at 3; Guilty

Plea Colloquy at 1J1J 49-52.) Thus, the only evidence suggesting that Fassnacht's guilty

plea was induced by counsel's alleged pressure is Fassnacht's proffered testimony,

which directly contradicts his own statements made during the oral plea colloquy and on

the written colloquy.

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 he may not later assert grounds
for withdrawing the plea which contradict the statements he made
at his plea colloquy ....

A criminal defendant who elects to plead guilty has a duty to answer
questions truthfully. We [cannot] permit a defendant to postpone
the final disposition of his case by lying to the court and later alleging
that his lies were induced by the prompting of counsel. ...

Commonwealth v. Pollard, 832 A.2d 517, 523-24 (Pa. Super. 2003) (citations

omitted).

Moreover, Fassnacht's current claim that he was in a "mental haze" at the time of

his plea is at odds with the observations of his attorney, Douglas Conrad, who testified

that, at the time of the plea, Fassnacht did not appear to be suffering from any mental

disability related to his seizure the night before .

. . . [l]n my dealings with [Fassnacht], he seemed to under - understand
what was going on. I could talk to him. He was answering me in - in a
normal basis.
It didn't appear - and we went over the colloquy. He was answering
the questions in a - the appropriate manner.

11
 I - I felt that he, in light of the many clients that I have had who have
had mental health issues and/or other issues, that he understood what
was going on.

(N.T., PCRA Hearing at 20.) I asked a follow-up question of defense counsel as to

whether "at any time during [counsel's) communications with Mr. Fassnacht just prior to

the guilty plea or during the guilty plea did [counsel] find that ... [Fassnacht] was not

able to knowingly, voluntarily and intelligently enter into this guilty plea," to which

counsel responded, "No ... [Fassnacht] seemed much as he had every time I met with

him." (Id. at 26; see also 27.)

Furthermore, at the time of the plea, Fassnacht was clear-headed enough to

discuss his 20-year battle with addiction, and his hope that the Department of

Corrections' rehabilitation program would benefit him. (N.T., Guilty Plea/PV/Sentencing

at 10.) He certainly had the opportunity and the cognitive awareness to similarly

discuss his seizures and any resultant thought disturbances. As Fassnacht's current

claims are at odds with the testimony he provided at his guilty plea and are simply not

credible, they must be rejected:

Finally, Fassnacht presented no evidence of actually having suffered a seizure,

absent his own testimony and the testimony of defense counsel of what Petitioner told

him.9 Pennsylvania law presumes that a defendant who enters a guilty plea was aware

of what he was doing, and he therefore bears the burden of proving otherwise.

9Petitioner
attempted to introduce the expert report of Dr. Martin who opined that "it
does sound as though [Fassnacht] had a grand mal seizure." (Motion to Submit into Evidence,
Exhibit 1A.) Dr. Martin fails, however, to identify the facts from which he bases that opinion,
other than what he was told by defense counsel. The Commonwealth, therefore, objected to the
proffered report and I did not permit its admission into evidence.

12
Commonwealth v. Reid, 117 A.3d 777, 783 (Pa. Super. 2015) (citing Pollard, 832

A.2d at 523). Thus, under the circumstances of this case, it was Petitioner's burden to

demonstrate that he was suffering under some sort of mental impairment, and that the

impairment rendered the plea involuntary. See Commonwealth v. Jackson, 569 A.2d

964, 966 (Pa. Super. 1990); Commonwealth v. Hazen, 462 A.2d 732, 735 (Pa. Super.

1983).

In Commonwealth v. Willis,68 A.3d 997, 1009 (Pa. Super. 2013), the Superior

Court found "the mere fact that [the defendant] was taking prescribed psychotropic

medication at the time of his plea does not, of itself, result in the conclusion he was

unable to enter a knowing, voluntary and intelligent guilty plea." Similarly, the

unsubstantiated allegation that Fassnacht suffered a seizure which impaired his

thinking does not, of itself, result in the conclusion that his plea was invalid. Absent

proof of some cognitive defect, and in light of the fact that Fassnacht participated in a

lengthy colloquy and cogently answered each question addressed to him, this claim is

without merit, and must be rejected. See Jackson, supra (concluding that when a

defendant appropriately and coherently participates in an oral plea colloquy, his plea

will be considered to be knowing, voluntary, and intelligent, even if the petitioner is

under the influence of a substance at the time); Hazen, supra (holding that the

defendant, who was on medication after an apparent suicide attempt, and later

asserted counsel was ineffective in permitting him to plead guilty since he felt

tranquilized during the plea hearing, was not entitled to withdraw his plea where

defense counsel opined that he was competent and trial court found that he cogently

participated in a lengthy plea colloquy).

13
 B. Lack of Pretrial Investigation

Next, Petitioner claims defense counsel (1) never met with him to review

discovery, (2) never discussed with him the options other than pleading guilty, and (3)

never conducted any pre-trial investigation. (Amended PCRA Petition at 111114-15.)

With respect to the discovery review, Fassnacht testified at the PCRA hearing that

counsel did visit him at the prison with the discovery and "tried to show [Petitioner] the

discovery" but Petitioner said he could not sit and look at it. (N.T., PCRA Hearing at

32.) This is consistent with Attorney Conrad's testimony that he gave Petitioner an

opportunity to review the discovery in his cases. (Id. at 14.) Fassnacht further testified

that an investigator from the Public Defender's Office also came to the prison to review

the discovery with him. (Id. at 36.) Thus, Fassnacht's own testimony refutes his first

claim that defense counsel never met with him to review discovery, and this claim must

be rejected.

Regarding defense counsel's failure to discuss with Petitioner options other than

pleading guilty, Petitioner testified that counsel told him that the alternative was going to

trial but that, with his prior record score and the recommended sentencing guidelines

based upon Fassnacht's designation as a repeat felony offender, he risked a

consecutive sentence on the two counts of burglary, the three counts of theft by

unlawful taking, and the conspiracy count." (N.T., PCRA at 30.) Thus, Fassnacht's

10The
guideline sentences for burglary and conspiracy were 2 to 3 years' incarceration,
and for theft 12 to 18 months' incarceration. Thus, a consecutive sentence on the six counts
could have been as high as 9 to 16.5 years' incarceration. (N.T., Guilty Plea/PV/Sentencing at
6.)

14
claim of counsel's failure to discuss with him alternative strategies to pleading guilty is

again belied by his own testimony.

Lastly, as for Fassnacht's claim of ineffectiveness for counsel's failure to properly

investigate his defense of innocence, Fassnacht must point to a specific harm suffered

as a result of trial counsel's alleged failure, and must show that an investigation would

have uncovered something that would have been helpful to Petitioner's case.

Commonwealth v. Rainey, 928 A.2d 215, 224 (Pa. Super. 2007). Here, Fassnacht

bases his claim of innocence on the fact that in discovery one of the suspects was

described by a witness as having rotten teeth. (N.T., PCRA Hearing at 16.) Fassnacht

claims not to have rotten teeth. (Id. at 31.) Moreover, in one photo lineup, a victim

identified Dennis Fassnacht, Petitioner's younger brother who allegedly has rotten

teeth, as one of the individuals who entered his property.11 (Id. at 17.) For these

reasons, Fassnacht claims his attorney was ineffective for failing to investigate this

defense. (Id. at 31-32, 38.)

11According
to the Affidavit of Probable Cause at No. 5913-2014, it was Lavern Redcay
who identified Dennis Fassnacht from a photo lineup as the front seat passenger in a vehicle
that drove down his farm lane on October 2, 2014, and asked if they could hunt on his property.
There was no criminal activity by the two men in the Jeep at that time. However, on October 13,
2014, Lavern's wife, Betty Jo Redcay, reported to the police that she observed a white male in
his early SO's with gray/blond hair exit a Jeep and cut wire from the welding equipment. She,
however, did not make an identification of the perpetrators. Thus, it would appear that Dennis
Fassnacht was not actually identified as one of the criminal actors in these charged burglaries.
However, at least four other witnesses identified Clifford Fassnacht as either the person
they spoke with while another male burglarized their property or the person they observed
stealing the personal property. Alta Eberly had conversations on two occasions, September 23,
2014 and September 24, 2014, with a white male whom she positively identified as Clifford
Fassnacht in a photo lineup. Another juvenile witness, L.Z., picked Clifford Fassnacht out of a
photo lineup as the white male who exited a Jeep and asked her about hunting on her land
while another individual stole welding wire from the Zimmerman work shop. Finally, James
McClearen, Jr., and Jeffrey Strauss identified Clifford Fassnacht as the individual who entered a
work building at Elizabeth Farms and cut wire from an industrial welder before fleeing in a Jeep
with two other men.

15
 It is important to first note that Fassnacht's claim of innocence is contradicted by

his admission of the facts supporting the elements of each offense to which he pleaded

guilty. (N.T., Guilty Plea/PV/Sentencing at 8.) Despite Fassnacht's assertion at the

PCRA Hearing that he was "100 percent innocent" of these charges, he admitted on

cross examination that he did not tell the Court at his guilty plea hearing about the

mistaken identity with his brother, and that he should not be pleading guilty. (Id. at 43.)

Relative to the investigation, defense counsel testified that neither he nor anyone

from the Public Defender's Office went out to investigate Fassnacht's brother, Dennis,

as a possible suspect because of his rotten teeth. (N.T., PCRA Hearing at 18.) The

discovery, however, suggests that such an investigation would not have uncovered

anything that would have been helpful to Petitioner's case. See Rainey, supra.

Had there been only one perpetrator of these crimes, Petitioner might have been

able to mount a defense based upon his alleged mistaken identity with his brother. The

evidence, however, revealed that for each criminal episode there were at least two male

accomplices. The modus operandi appeared to be that while one male kept a resident

of the property engaged in conversation, the other male surreptitiously entered an

outbuilding and stole the personal property. Thus, simply placing Dennis Fassnacht at

the burglaries does not exonerate Clifford Fassnacht.

Moreover, Christopher Irvin, one of the three co-conspirators to the burglary and

hit and run incident at Elizabeth Farms on October 14, 2014, gave a statement to the

police implicating Clifford Fassnacht in those crimes.12 Irvin further admitted to driving

12Dennis
Fassnachtwas not one of the three co-conspiratorsinvolved in this criminal
episode,and Petitionerwas identifiedby two of the victims as the male who enteredthe

16
both Fassnacht brothers to a farm property approximately one week before, where the

two brothers stole black cable wire from a barn. In his police statement, Irvin explained

that, because of a debt owed to Clifford and Dennis Fassnacht, he had allowed the

brothers to also borrow his vehicle, a Jeep Cherokee, on multiple occasions to commit

other burglaries and thefts together.

Given the evidence in this case, Petitioner cannot establlsh that there is a

reasonable probability that the outcome of his case would have been different but for

counsel's alleged ineffectiveness in failing to investigate his brother's teeth. See

Chmiel, 612 Pa. at 362, 30 A.3d at 1127-28. Four eyewitness to three separate

criminal episodes positively identified Clifford Fassnacht in photo lineups as one of the

perpetrators. Moreover, one of those four witnesses repeated her identification of

Petitioner at the preliminary hearing. (N.T., PCRA Hearing at 15-16.) There was no

lack of evidence linking Petitioner to these crimes. Accordingly, Petitioner has not met

the burden of proof for this PCRA claim.

C. Withdrawal of Guilty Plea/DirectAppeal

Lastly, Fassnacht claims trial counsel was ineffective for failing (1) to petition for

a withdrawal of his guilty plea, and (2) to perfect an appeal after being requested to do

so. (Amended PCRA Petition at ,m 12-13.) Generally, an attorney can be found to be
ineffective for failing to perfect an appeal upon the defendant's request.

Commonwealth v. Spencer, 892 A.2d 840, 842 (Pa. Super. 2006) (citing

building and exited with the stolen property. There was no mention of the perpetrator having
rotten or missing teeth. ·

17
Commonwealth v. Lantzy, 558 Pa. 214, 736 A.2d 564 (1999)). In Lantzy, our

Supreme Court held that an unjustified failure to file a direct appeal upon request will

constitute prejudice per se, and if the remaining PCRA requirements are satisfied, a

defendant does not have to demonstrate his innocence or the merits of the issue he

would have pursued on appeal to be entitled to relief. Such relief is appropriate only

where the petitioner pleads and proves that a timely appeal was in fact requested and

that counsel ignored that request. Id. However, "counsel's failure to file post-sentence

motions does not fall within the narrow ambit of ineffectiveness claims requiring no

finding of prejudice." Commonwealth v, Fransen, 986 A.2d 154, 158 (Pa. Super.

2009).

In the instant case, the record reflects that Petitioner has failed to satisfy his

burden of proof. Petitioner testified at the PCRA hearing that immediately after the

guilty plea/sentencing hearing on June 3, 2015, he requested that his counsel file an

appeal, and that Attorney Conrad's response was "it won't do no good." (N.T., PCRA

Hearing at 37.) This testimony was directly contradicted by that of Attorney Conrad,

who asserted that Petitioner never directed him to file either an appeal or a motion to

withdraw the plea. (Id. at 26.) To the contrary, Attorney Conrad testified that after

advising his client "that he should send something to [him] if he was requesting an

appeal of anything within 10 days and/or 30 days," Petitioner told him: "[D]on't file it ...

[I'll] just PCRA [you) for everything."13 (Id. at 21, 22.) Attorney Conrad took notes of his

13Petitioner
acknowledged at his guilty plea hearing that Attorney Conrad reviewed with
him his appeal rights as set forth in the written guilty plea colloquy form. (N.T., Guilty Plea/Pvt
Sentencing at 14.) I also reviewed with Petitioner his two options for post-sentence review,
which Petitioner stated he understood. (Id. at 14-15.) A post conviction collateral relief petition
was not discussed.

18
meeting with Petitioner in the holding cell immediately following the guilty plea and

sentencing. (Id. at 21.) As a result of their conversation, and having received no further

communication from Petitioner regarding post-sentence motions or an appeal, defense

counsel took no further action on behalf of his client. (Id. at 22.)

Petitioner's testimony that he requested counsel to file something after he was

sentenced lacks credibility. The record establishes that Petitioner made an informed

decision to enter his guilty plea and Petitioner's testimony that he was unhappy with the

plea and wanted counsel to withdraw it and/or file an appeal directly contradicts

statements made by Petitioner in both the written plea colloquy and at the guilty plea

hearing. Petitioner cannot now avoid the consequences of his actions by claiming

ineffective assistance of counsel.

IV. Conclusion

For the reasons set forth above, Fassnacht's amended petition for post

conviction collateral relief lacks merit as there is nothing in the record indicating that

defense counsel was ineffective in his representation of Fassnacht through the guilty

plea and sentencing, or that the guilty plea was not knowing, intelligent and voluntary.

Therefore, the amended petition must be dismissed following a hearing in this matter.

Accordingly, I enter the following:

19
 \

IN THE COURT OF COMMON PLEAS OF LANCASTER COUNTY, PENNSYLVANIA
CRIMINAL.

COMMONWEALTH OF PENNSYLVANIA

V. Nos. 2763-2007, 3473-2008,
5913-2014, 0895-2015
CLIFFORD L. FASSNACHT

.ORDER

AND NOW, this 8th day of December, 2016, upon consideration of Clifford L.

Fassnacht's amended petition for post conviction collateral relief, and following a hearing

on this matter, it is hereby ORDERED that said petition is DENIED.

Pursuant to Pa.R.Crim.P. 908(E), this Court advises Petitioner that he has the right

to appeal from this Order and the right to assistance of counsel in the preparation of that

appeal. Petitioner shall have 30 days from the date of this final Order to appeal to the ·

Superior Court of Pennsylvania. Failure to appeal within 30 days will result in the loss of

appellate rights.

It is further ORDERED that Petitioner shall have the right to appeal in forma

Copies to: Andrew T. LeFever, Assistant District Attorney
Dennis C. Dougherty, Esquire