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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellee
v.
MICHAEL PUGH,
Appellant No. 760 EDA 2018
Appeal from the PCRA Order Entered February 16, 2018
In the Court of Common Pleas of Montgomery County
Criminal Division at No(s):
CP-46-CR-0000014-2015
CP-46-CR-0006243-2014
CP-46-CR-0006482-2014
CP-46-CR-0006887-2014
CP-46-CR-0006889-2014
CP-46-CR-0009421-2014
BEFORE: BENDER, P.J.E., OTT, J., and FORD ELLIOT, P.J.E.
MEMORANDUM BY BENDER, P.J.E.: FILED APRIL 04, 2019
Appellant, Michael Pugh, appeals pro se from the post-conviction court’s
February 16, 2018 order denying his timely-filed petition under the Post
Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. After careful review,
we affirm.
The facts of Appellant’s underlying convictions are not pertinent to his
present appeal. Additionally, while the PCRA court presented a lengthy
procedural history of Appellant’s case, see PCRA Court Opinion, 5/2/18, at 1-
4, we need only note the following matters, for purposes of addressing the
argument Appellant raises herein. On March 16, 2016, Appellant pled guilty
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in several different cases to five counts of access device fraud and one count
of possession of heroin. He received an aggregate sentence of 3 to 6 years’
incarceration, followed by 4 years’ probation.
Appellant did not file a direct appeal. Instead, he filed a timely, pro se
PCRA petition in which he alleged, inter alia, that his plea counsel had acted
ineffectively by not accurately advising him about the sentence he would
receive, and that he was not given proper credit for time-served. The PCRA
court appointed counsel, and subsequently directed counsel to provide the
court with certain documents that were pertinent to resolving Appellant’s
time-credit issue. When that attorney failed to respond to the court’s order,
the court appointed new counsel for Appellant, Bonnie-Ann Brill Keagy, Esq.
Attorney Keagy ultimately filed a petition to withdraw and ‘no-merit’ letter in
accordance with Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
Meanwhile, Appellant filed with the court a pro se document entitled,
“Motion to Amend PCRA - Mental Health.” Therein, he claimed that his plea
counsel was ineffective for not advising him to plead guilty but mentally ill
under 18 Pa.C.S. § 314.1 On December 19, 2017, the court issued a
Pa.R.Crim.P. 907 notice of its intent to dismiss Appellant’s petition, and
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1We point out that Attorney Keagy addressed this claim and concluded it was
meritless in her Turner/Finley letter.
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contemporaneously granted Attorney Keagy’s petition to withdraw.2 Then, on
February 16, 2018, the court issued a “Final Order of Dismissal of PCRA
Petition.”
Appellant filed a timely, pro se notice of appeal.3 He also filed a
Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal,
although not being ordered to do so by the PCRA court. On May 5, 2018, the
court issued a Rule 1925(a) opinion. Herein, Appellant states three issues in
his “Statement of the Questions Presented” section of his brief, yet only
identifies and discusses the following single issue in his “Argument” section:
The PCRA court erred in denying pro se [Appellant’s] … motion for
a[n] evidentiary hearing, and also [for] not finding trial counsel
was ineffective for not advising [Appellant] to plead guilty but
mental[ly] ill under [18 Pa.C.S. §] 314(b), and for failing to put
the doctor on the witness[] stand to testif[y] to her reports and
finding[s] dealing with [Appellant’s] mental ill[ness] and history
that she prepare[d] for the hearing.
Appellant’s Brief at 5.
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2The court states that Appellant filed a pro se response to the Rule 907 notice,
but the docket contains no entry for that filing, and it is not contained in the
certified record.
3 We note that Appellant filed a single notice of appeal from the court’s order,
which resolved issues pertaining to multiple cases. In Commonwealth v.
Walker, 185 A.3d 969 (Pa. 2018), our Supreme Court held that “in future
cases [Pa.R.A.P.] 341(a) will, in accordance with its Official Note, require that
when a single order resolves issues arising on more than one docket, separate
notice of appeal must be filed. The failure to do so will result in quashal of
the appeal.” Id. at 977 (footnote omitted; emphasis added). Walker was
filed on June 1, 2018, after Appellant filed had his pro se notice of appeal.
Therefore, Walker does not require us to quash.
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We begin by recognizing that, “[t]his Court’s standard of review from
the grant or denial of post-conviction relief is limited to examining whether
the lower court’s determination is supported by the evidence of record and
whether it is free of legal error.” Commonwealth v. Morales, 701 A.2d 516,
520 (Pa. 1997) (citing Commonwealth v. Travaglia, 661 A.2d 352, 356 n.4
(Pa. 1995)). Additionally,
[t]he legal standard applicable to ineffective assistance of counsel
claims is well settled[:]
To prevail on a claim that counsel was constitutionally
ineffective, the appellant must overcome the presumption
of competence by showing that: (1) his underlying claim is
of arguable merit; (2) the particular course of conduct
pursued by counsel did not have some reasonable basis
designed to effectuate his interests; and, (3) but for
counsel’s ineffectiveness, there is a reasonable probability
that the outcome of the challenged proceeding would have
been different. A failure to satisfy any prong of the test for
ineffectiveness will require rejection of the claim.
***
Claims of ineffectiveness of counsel that are raised in the context
of a guilty plea may provide a basis for relief only if counsel’s
ineffectiveness caused an involuntary or unknowing plea. This is
similar to the “manifest injustice” standard applicable to all post-
sentence attempts to withdraw a guilty plea.
Commonwealth v. Watson, 835 A.2d 786, 795–96 (Pa. Super. 2003)
(internal citations and some quotation marks omitted).
In this case, Appellant contends that the PCRA court erred by denying
his claim that his plea counsel was ineffective for failing to advise Appellant to
plead guilty but mentally ill under 18 Pa.C.S. § 314. That statute reads:
§ 314. Guilty but mentally ill
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(a) General rule.—A person who timely offers a defense of
insanity in accordance with the Rules of Criminal Procedure
may be found “guilty but mentally ill” at trial if the trier of
facts finds, beyond a reasonable doubt, that the person is
guilty of an offense, was mentally ill at the time of the
commission of the offense and was not legally insane at the
time of the commission of the offense.
(b) Plea of guilty but mentally ill.—A person who waives
his right to trial may plead guilty but mentally ill. No plea of
guilty but mentally ill may be accepted by the trial judge
until he has examined all reports prepared pursuant to the
Rules of Criminal Procedure, has held a hearing on the sole
issue of the defendant’s mental illness at which either party
may present evidence and is satisfied that the defendant
was mentally ill at the time of the offense to which the plea
is entered. If the trial judge refuses to accept a plea of guilty
but mentally ill, the defendant shall be permitted to
withdraw his plea. A defendant whose plea is not accepted
by the court shall be entitled to a jury trial, except that if a
defendant subsequently waives his right to a jury trial, the
judge who presided at the hearing on mental illness shall
not preside at the trial.
(c) Definitions.—For the purposes of this section and 42
Pa.C.S. § 9727 (relating to disposition of persons found
guilty but mentally ill):
(1) “Mentally ill.” One who as a result of mental
disease or defect, lacks substantial capacity either to
appreciate the wrongfulness of his conduct or to
conform his conduct to the requirements of the law.
(2) “Legal insanity.” At the time of the commission of
the act, the defendant was laboring under such a
defect of reason, from disease of the mind, as not to
know the nature and quality of the act he was doing
or, if he did know it, that he did not know he was doing
what was wrong.
18 Pa.C.S. § 314.
Here, in rejecting Appellant’s ineffectiveness claim, the PCRA court
explained:
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[Appellant] claims in his remaining issues that his [plea]
counsel was ineffective for failing to advise him to plead guilty but
mentally ill.
[Appellant] cites to Commonwealth v. Andrews, 158
A.3d 1260 (Pa. Super. 2017). In Andrews, the Superior Court
held that the PCRA court erred in dismissing the PCRA petition on
the basis that the petitioner was required to assert an insanity
defense if he wished to enter a plea of guilty but mentally ill. See
18 Pa.C.S.[] § 314.
We do not believe that Andrews is on point with the instant
files. [Appellant] has not alleged that he was legally insane at the
time these crimes were committed. [Appellant] has failed to
explain how the disposition of these cases would have differed had
[Appellant] entered a plea of guilty but mentally ill rather than the
general guilty pleas that he entered.
Final Order of Dismissal of PCRA Petition, 2/16/18, at 1-2.
Appellant contends that the PCRA court misconstrued Andrews.
According to Appellant, the Andrews panel held “that a defendant need not
assert an insanity defense before entering a plea of guilty but mentally ill.”
Appellant’s Brief at 8 (emphasis added). Appellant’s reading of Andrews is
correct. There, Andrews had filed a PCRA petition asserting that his trial
counsel was ineffective for not advising him to plead guilty but mentally ill
under 18 Pa.C.S. § 314(b). Andrews, 158 A.3d at 1264. Rather than
entering such a plea, Andrews had instead proceeded to trial. In regard to
prejudice, Andrews “contended that had he entered a plea of guilty but
mentally ill (rather than unsuccessfully pleading not guilty and going to trial
on a diminished capacity defense), he would have been entitled to psychiatric
treatment while serving his life sentence after conviction.” Id. at 1262.
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The PCRA court denied Andrews’ petition without a hearing, reasoning
that Andrews “was not entitled to plead guilty but mentally ill because he did
not present an insanity defense at trial.” Id. at 1263. On appeal, we rejected
the court’s conclusion, clarifying that,
Section 314(b) does not condition the ability to plead guilty but
mentally ill on the assertion of an insanity defense. Indeed, any
such condition would make no sense. An insanity defense
requires a plea of not guilty. Here, [Andrews] argues that he
should have been advised to plead guilty but mentally ill. “A plea
of guilty constitutes a waiver of all non[-]jurisdictional defects and
defenses” and “waives the right to challenge anything but the
legality of [the] sentence and the validity of [the] plea.”
Commonwealth v. Jones, 593 Pa. 295, 929 A.2d 205, 212
(2007) (citation omitted). Thus, if a defendant pleads guilty but
mentally ill and the court accepts that plea, the defendant waives
the defense of insanity. There thus would be no reason for a
defendant to invoke the defense of insanity before entering a plea
of guilty but mentally ill.
Id. at 1265 (emphasis in original). Consequently, the Andrews panel
concluded that “the PCRA court erred by dismissing [Andrews’] claim on the
ground that he did not assert such a defense.” Id.
In the case sub judice, the PCRA court explicitly denied Appellant’s
ineffectiveness claim on the basis that he did “not allege[] that he was legally
insane at the time these crimes were committed.” Final Order of Dismissal
of PCRA Petition at 2 (emphasis added). However, as Andrews makes clear,
section 314(b) does not require the defendant to assert a legal-insanity
defense before pleading guilty but mentally ill. Accordingly, in this respect,
the PCRA court erred.
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However, the PCRA court also denied Appellant’s petition because
Appellant had not demonstrated that he was prejudiced by entering a guilty
plea, rather than a plea of guilty but mentally ill. After closely examining the
record in this case, we are constrained to agree. In Appellant’s pro se “Motion
to Amend PCRA - Mental Health,” in which he asserted this ineffectiveness
claim,4 Appellant did not contend, as did the petitioner in Andrews, that he
was denied the psychiatric treatment to which a plea of guilty but mentally ill
would have entitled him. Indeed, Appellant actually stressed that he is getting
treatment in prison, declaring that he “is at a mental health prison were [sic]
he has been for the last few years. He is placed on a mental health block, and
is taking medication where he is placed as a D-Code inmate.” Motion to
Amend PCRA - Mental Health, 11/21/17, at 2 (unnumbered).
Additionally, in Appellant’s brief to this Court, he again fails to present
any claim that he was prejudiced because he is being denied treatment that
he would have received had he entered a plea under section 314(b). Rather,
Appellant argues that, had he pled guilty but mentally ill, he would have “been
treat[e]d differently under the color of law[,] … put in a mental hospital for
treatment[,] … [o]r given probation or trea[t]ment” rather than a sentence of
incarceration. Appellant’s Brief at 9.
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4We acknowledge that Appellant was represented at the time he filed this pro
se motion, thereby implicating hybrid-representation concerns. See
Commonwealth v. Ellis, 626 A.2d 1137, 1139 (Pa. 1993) (“[T]here is no
constitutional right to hybrid representation either at trial or on appeal.”).
However, the court seemingly accepted it as an amendment to Appellant’s
petition, and we will not disturb that decision on appeal.
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Appellant’s arguments are unconvincing. Relying on Pennsylvania
Supreme Court cases, the Commonwealth Court has explained:
The “guilt” of “guilty but mentally ill” is the same as that of
a traditional guilty verdict or plea. The guilty but mentally ill
statute has “no impact on the adjudicative process” or the burdens
of proof placed upon the parties. [Commonwealth v.] Sohmer,
… 546 A.2d [601,] 607 [(Pa. 1988)]. Further, a guilty but mentally
ill determination does not negate the criminal intent of the
defendant, and instead “expressly recognizes that all elements of
the crime have been met.” Commonwealth v. Santiago, … 855
A.2d 682, 701 ([Pa.] 2004); Sohmer, … 546 A.2d at 606.
Nor is the duration of the sentence affected by a
determination of guilty but mentally ill: a guilty but mentally ill
defendant “may have any sentence imposed on him which may
lawfully be imposed on any defendant convicted of the same
offense,” 42 Pa.C.S. § 9727(a), and is entitled to no reduction in
the term as a result of the finding of mental illness. Santiago, …
855 A.2d at 701. Likewise, a defendant found guilty but mentally
ill cannot evade a mandatory minimum sentence.
Commonwealth v. Larkin, … 542 A.2d 1324, 1328 ([Pa.] 1988).
The only distinction between guilty but mentally ill and guilty at
sentencing is that the judge is required to “hear testimony and
make a finding on the issue of whether the defendant at the time
of sentencing is severely mentally disabled and in need of
treatment.” 42 Pa.C.S. § 9727(a). Mental health treatment is
then provided in accordance with available resources. 42 Pa.C.S.
§ 9727(b). Prerelease, parole and probation for guilty but
mentally ill offenders are also administered in accordance with the
laws and regulations applicable to other offenders, except mental
health treatment may be required as a condition of an offender’s
change of status. 42 Pa.C.S. § 9727(d)-(f).
Miskovitch v. Pennsylvania Bd. of Prob. & Parole, 77 A.3d 66, 71–72 (Pa.
Cmwlth. 2013).
In light of the record before us and law we have discussed supra, we
discern no error in the PCRA court’s conclusion that Appellant failed to
demonstrate that he was prejudiced by pleading guilty, rather than guilty but
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mentally ill. Accordingly, on that basis, we affirm the PCRA court’s order
denying his petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/4/19
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