J-S23036-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DAVID ALLEN YINGLING :
:
Appellant : No. 1539 WDA 2018
Appeal from the PCRA Order Entered September 19, 2018
In the Court of Common Pleas of Indiana County Criminal Division at
No(s): CP-32-CR-0001059-2016
BEFORE: BENDER, P.J.E., NICHOLS, J., and COLINS*, J.
MEMORANDUM BY COLINS, J.: FILED JUNE 21, 2019
Appellant, David Allen Yingling, appeals from the order entered
September 19, 2018, that denied his first petition filed under the Post
Conviction Relief Act (“PCRA”).1 We affirm on the basis of the PCRA court
opinion.
In its opinion, the PCRA court correctly set forth the relevant facts and
procedural history of this case. See PCRA Court Opinion, filed September 19,
2018, at 1-4. Therefore, we have no reason to restate them at length here.
For the convenience of the reader, we briefly note that a competency
evaluation of Appellant was completed by Abhishek Jain, M.D., who submitted
a written report to the trial court dated July 7, 2016. According to Dr. Jain,
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1 42 Pa.C.S. §§ 9541–9546.
* Retired Senior Judge assigned to the Superior Court.
J-S23036-19
Appellant understood the nature and object of the proceedings against him,
could participate and assist his defense, and was therefore competent to stand
trial. On January 13, 2017, Appellant pleaded guilty to murder of the third
degree.2 On April 3, 2017, the trial court sentenced Appellant to 17½ to 35
years of confinement. At both his plea and sentencing hearings, Appellant
was represented by two attorneys, Donald McKee, Esquire, and
Annmarie Everett, Esquire (hereinafter, collectively, “trial counsel”).
Appellant did not file a direct appeal.
On March 26, 2018, Appellant filed his first, pro se, timely PCRA petition.
On April 3, 2018, the PCRA court appointed counsel to represent Appellant
and ordered PCRA counsel to file an amended petition within 90 days of the
date of the order, and PCRA counsel complied on June 22, 2018. The amended
PCRA petition alleged:
Despite [Appellant]’s mental health concerns, prior counsel did
not further investigate [Appellant]’s mental state . . . at the time
[Appellant] entered his plea. . . .
[Appellant] believes and therefore avers that prior counsel should
have attempted to bargain a plea for him based on a Guilty but
Mentally Ill plea.
...
[Appellant]’s prior counsel was ineffective in that [Appellant]
would not have entered a plea had he been aware of the proper
sentencing range that he was going to be subjected to due to his
prior record score.
Amended PCRA Petition, 6/22/2018, at ¶¶ 18-19, 23.
____________________________________________
2 18 Pa.C.S. § 2502(c).
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On August 27, 2018, the PCRA court held an evidentiary hearing.3 At
the hearing, both Attorney McKee and Attorney Everett testified that they
considered the possibility of a guilty-but-mentally-ill defense, but, given the
Dr. Jain’s findings and the Commonwealth’s plea offer of third-degree murder,
they did not believe that presenting such a defense was the best possible
strategy for Appellant. Attorney Everett additionally testified that she
discussed the possible range of sentences with Appellant at the time of his
plea.
On September 19, 2018, the PCRA court entered an order denying
Appellant’s petition and an accompanying opinion. On October 19, 2018,
Appellant filed this timely appeal.4
Appellant presents the following issues for our review:
1. Whether the [PCRA] court erred when it made a finding that
defense counsel was effective counsel when defense counsel failed
to inquire about [Appellant]’s mental state at the time of the plea
hearing, making the plea involuntary and unknowing[].
2. Whether the [PCRA] court erred when it made a finding that
defense counsel was effective counsel, even though counsel failed
to pursue a guilty but mentally ill defense, causing the plea to be
involuntary and unknowing.
____________________________________________
3 The notes of testimony for the PCRA hearing are incorrectly labelled as
“Omnibus Pretrial Motion”.
4 On November 19, 2018, Appellant filed his statement of errors complained
of on appeal. Later that same day, the PCRA court ordered that the opinion
accompanying its order denying PCRA relief would serve as its opinion
pursuant to Pa.R.A.P. 1925(a).
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3. Whether the [PCRA] court erred when it made a finding that
defense counsel was effective counsel, even though defense
counsel failed to advise [Appellant] about the possible sentencing
ranges that he could face at sentencing.
Appellant’s Brief at 6 (suggested answers and unnecessary capitalization
omitted).
“We review the denial of PCRA relief to decide whether the PCRA court’s
factual determinations are supported by the record and are free of legal error.”
Commonwealth v. Medina, 2019 PA Super 119, *8 (filed April 17, 2019)
(quoting Commonwealth v. Brown, 196 A.3d 130, 150 (Pa. 2018)).
All of Appellant’s claims allege ineffective assistance of trial counsel.
Appellant’s Brief at 16-22. Appellant specifically contends that his trial counsel
was ineffective, because counsel “did not inquire into [Appellant]’s mental
state at the time of his guilty plea” and “failed to advance a guilty but mentally
ill verdict or plea” or “to inform [him] of this possible legal avenue.” Id. at
16, 18, 22. He also argues that trial counsel was ineffective for failing to
“advise [him] of his prior record score and sentencing ranges prior to
sentencing.” Id. at 14.5
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5 In his brief to this Court, Appellant also contends that Dr. Jain’s evaluation
does not include his prior mental health treatment history and that his
“hearing issues coupled with his mental illness ultimately caused his guilty
plea to be involuntarily and unknowingly entered.” Appellant’s Brief at 17-18.
However, Appellant makes no mention of Dr. Jain’s failure to explore his
mental health history or his hearing issues in his amended PCRA petition, and,
thus, these challenges are waived. Commonwealth v. Santiago, 855 A.2d
682, 691 (Pa. 2004) (“Regardless of the reasons for [an a]ppellant’s belated
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[C]ounsel is presumed to be effective.
To overcome this presumption, a PCRA petitioner must
plead and prove that: (1) the underlying legal claim is of
arguable merit; (2) counsel’s action or inaction lacked any
objectively reasonable basis designed to effectuate his
client’s interest; and (3) prejudice, to the effect that there
was a reasonable probability of a different outcome if not
for counsel’s error.
Commonwealth v. Root, 179 A.3d 511, 518 (Pa. Super. 2018)
(citation omitted) (some formatting). “A failure to satisfy any of
____________________________________________
raising of [an] issue, it is indisputably waived. We have stressed that a claim
not raised in a PCRA petition cannot be raised for the first time on appeal.”).
Assuming Appellant’s claim that Dr. Jain should have explored his mental
health treatment history were not waived, when asked during his guilty plea
hearing if he had “ever received treatment for a mental disease or disability[,]”
Appellant answered, “No.” N.T., 1/13/2017, at 4. “A person who elects to
plead guilty is bound by the statements he makes in open court while under
oath[.]” Commonwealth v. Yeomans, 24 A.3d 1044, 1047 (Pa. Super.
2011); accord Commonwealth v. Wilcox, 174 A.3d 670, 674 (Pa. Super.
2017), appeal denied, 184 A.3d 545 (Pa. 2018).
Likewise, assuming arguendo that the issue of Appellant’s hearing were not
waived, immediately prior to his plea hearing, Appellant completed a nine-
page written guilty plea colloquy giving his full name, age, education, and
comprehension of written and spoken English and acknowledging that he
understood the charge to which he was pleading guilty, the facts summarized
by the Commonwealth that supported his plea, his right to trial by jury
including the jury selection process, and the presumption of innocence; he
initialed pages 2 to 9 and signed page 9. Appellant’s hearing problems could
not have affected his ability to complete a written colloquy, and this written
colloquy satisfied all of the inquiries necessary to find that a plea is voluntarily
and understandingly tendered pursuant to Pa.R.Crim.P. 590. See
Commonwealth v. McGarry, 172 A.3d 60, 66-67 (Pa. Super. 2017), appeal
denied, 185 A.3d 966 (Pa. 2018). Additionally, during his oral guilty plea
colloquy in open court, Appellant never requested that a question be repeated,
asked any participant to increase his or her volume, or otherwise demanded
assistance with his hearing. See generally N.T., 1/13/2017. Hence,
assuming this issue were not waived, we would still find no arguable merit to
Appellant’s assertion that his hearing somehow rendered his plea unknowing
or involuntary.
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the three prongs of [this] test requires rejection of a claim of
ineffective assistance[.]” Commonwealth v. Chmiel, 30 A.3d
1111, 1128 (Pa. 2011).
Medina, 2019 PA Super 119, *15. “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. Barndt, 74 A.3d 185, 192 (Pa. Super. 2013)
(citation omitted).
After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinion of the Honorable
Thomas M. Bianco, we conclude Appellant’s issues merit no relief. The PCRA
court opinion comprehensively discusses and properly disposes of those
questions. See PCRA Court Opinion, filed September 19, 2018, at 7–12
(finding: (1) with regard to Appellant’s claim that trial counsel was ineffective
for failing to investigate Appellant’s mental health at the time of the plea,
Appellant failed to establish that the underlying claim has arguable merit,
because the competency evaluation sufficiently addressed Appellant’s state of
mind at the time of the crime and at the time of the plea, so a request for a
further evaluation was not warranted; (2) with regard to Appellant’s claim that
counsel was ineffective for failing to pursue a guilty-but-mentally-ill verdict or
plea, Appellant failed to establish that trial counsel lacked an objectively
reasonable basis, because both Attorneys McKee and Everett testified during
the PCRA hearing that they considered the possibility of such a defense but,
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J-S23036-19
given Dr. Jain’s findings and the Commonwealth’s plea offer of third-degree
murder, did not believe that seeking a guilty-but-mentally-ill finding was the
best strategy; and (3) with regard to Appellant’s claim that trial counsel was
ineffective for failing to advise him of his prior record score and the applicable
sentencing ranges prior to the entry of his plea, Appellant failed to establish
that trial counsel lacked an objectively reasonable basis, because (a) Attorney
Everett testified that she discussed the possible range of sentences with
Appellant at the time of his plea, and (b) Appellant never told trial counsel
that he wished to withdraw his plea after learning his prior record score and
the applicable standard range of the sentencing guidelines).
Accordingly, having discerned no error of law, we affirm on the basis of
the PCRA court’s opinion. See Medina, 2019 PA Super 119, *8. The parties
are instructed to attach the opinion of the PCRA court in any filings referencing
this Court’s decision.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/21/2019
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Circulated 05/30/2019 03:08 PM
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IN THE COURT OF COMMON PLEAS OF INDIANA COUNTY, PENNSYLVANIA
·COMMONWEALTH OF
PENNSYLVANIA,
CRIMINAL DIVISION
vs.
NO. l 059 CRIM 2016
DAVID ALLEN YINGLING,
Petitioner.
OPINION AND ORDER OF COURT
Bianco, J.
This matter comes before the Court on the Amended Petition Under Post-
Conviction Collateral Relief Act (hereinafter the "Amended PCRA Petition") filed
on behalf of Petitioner, David Allen Yingling. For the reasons stated herein, the
Amended PCRA Petition is DENIED.
FACTS
Petitioner was charged with a violation of 1 8 Pa.CS.A. §2501 (a), Criminal
Homicide. At all times relevant to the allegations contained in the PCRA
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Petition, Petitioner was represented by Donald L. McKee, Esquire, and AnnMarie
Everett, Esquire.'
On January 13, 2017, Petitioner entered a plea of guilty to Count 2, as
amended, Murder of the Third Degree, 1 8 Pa.CS.A. §2 502(c), a felony of the
first degree. The Commonwealth of Pennsylvania moved for the Nol Pros of
Count 1, Criminal Homicide. At the time of the entry of the guilty plea, the
Court engaged Petitioner in an oral guilty plea colloquy. During the oral
colloquy, the Court reviewed the written colloquy entitled "Guilty Plea,
Explanation of Defendant's Rights," previously completed and executed by
Petitioner. This form contains nine (9) pages. Petitioner's initials appear on
pages 2 through 9, and Petitioner's signature appears on page 9. The
signatures of Attorney McKee and Attorney Everett also appear on page 9. The
written colloquy is dated January 11, 201 7. At the PCRA hearing, the written
colloquy was introduced as Commonwealth's Exhibit 1, and the transcript of the
Plea Hearing was introduced as Defendant's Exhibit 1. In response to the
questions presented in the colloquies, both written and oral, Petitioner
I
A review of the transcript from the Magisterial District Court reveals that Petitioner was represented by Donald L.
McKee, Esquire, Ann Marie Everett, Esq., and Aaron F. Ludwig, Esquire, during the early stages of this matter.
2
responded with appropriate answers, and in a manner consistent with a
knowing and voluntary plea.
Petitioner was sentenced by the Court on April 3, 201 7. Petitioner was
ordered to pay the cost of prosecution of $1,470.50, pay a fine in the amount
of $500, and undergo incarceration at a State Correctional Institution for a
period of not less than 1 7 Yi years nor more than 35 years. Petitioner did not
file a post-sentencing motion, nor did Petitioner file an appeal to the Superior
Court of Pennsylvania.
On March 26, 201 8, Petitioner filed a Motion for Post Conviction Relief
with the Clerk of Court of Indiana County, Pennsylvania. By Order of Court
dated April 2, 2018, the Court appointed Jennifer Westrick, Esquire, to
represent Petitioner. Attorney Westrick filed the Amended Petition Under Post-
Conviction Collateral Relief Act at issue on June 22, 2018. In the Amended
PCRA Petition, Petitioner appears to raise two issues: "Ineffective Assistance of
Counsel - Plea," and "Ineffective Assistance of Counsel - Prior Record Score."
This Court conducted a hearing to address the Amended PCRA Petition on
August 27, 2018. During the course of the hearing, the Court heard testimony
3
from Petitioner, Attorney Donald McKee, and Attorney AnnMarie Everett. This
matter is ripe for decision.
APPLICABLE LAW
The relevant portions of the Post Conviction Relief Act are set forth
below; Petitioner must prove each by a preponderance of the evidence:
(1) That the petitioner has been convicted of a crime
under the laws of this Commonwealth and is at the
time relief is granted:
(i) currently serving a sentence of imprisonment,
probation or parole for the crime;
(2) That the conviction or sentence resulted from one
or more of the following:
(ii) Ineffective assistance of counsel which, in the
circumstances of the particular case, so
undermined the truth-determining process that
no reliable adjudication of guilt or innocence
could have taken place.
(3) That the allegation of error has not been previously
litigated or waived.
(4) That the failure to litigate the issue prior to or
during trial, during unitary review or on direct appeal
4
could not have been the result of any rational, strategic
or tactical decision by counsel.
42 Pa.CS.A. § 9543.
" 'Counsel is presumed effective, and [Petitioner] bears the burden of
proving otherwise.'" Commonwealth v. Fears, 86 A.3d 795, 803-804 (Pa.
2014), quoting Commonwealth v. Steele, 961 A.2d 786, 796 (Pa.
2008)(additional citation omitted). 'To prevail on an ineffectiveness claim,
[Petitioner] must establish: '(1) the underlying claim has arguable merit; (2) no
reasonable basis existed for counsel's actions or failure to act; and (3)
[Petitioner] suffered prejudice as a result of counsel's error such that there is a
reasonable probability that the result of the proceeding would have been
different absent such error.'" Id.. quoting Commonwealth v. Lesko, 1 5 A.3d
345, 3 73 (Pa. 201 l)(additional citation omitted). "Failure to prove any prong of
this test will defeat an ineffectiveness claim." ld.,_, citing Commonwealth v.
Basemore, 560 Pa. 258, 744 A.2d 171, 738 (2000).
In this case, Petitioner alleges that his counsel was ineffective regarding
the entrance of his plea. " 'Allegations of ineffectiveness in connection with the
5
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. 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.'" Commonwealth v. Barndt, 74 A.3d
185, 192 (Pa.Super. 2013), quoting Commonwealth v. Wah, 42 A.3d 335, 338-
39 (Pa.Super. 201 2).
DISCUSSION
To begin, the Court recognizes that Petitioner is eligible for relief under
42 Pa.CS.A. §9543(a) in that Petitioner was convicted of a crime and is
currently serving a sentence of imprisonment for the crime.
As stated above, the Amended PCRA Petition sets forth two issues
separately identified as "Ineffective Assistance of Counsel - Plea" and
"Ineffective Assistance of Counsel - Prior Record Score." However, the Court
believes that the Amended PCRA Petition actually contains four separate claims
of ineffective assistance of counsel. The Court believes it is important to
specifically identify all issues raised for the Court's consideration.
6
First, Petitioner asserts that counsel was ineffective for failing to
investigate Petitioner's mental state at the time of the crime. Second, Petitioner
asserts that counsel was ineffective for failing to investigate Petitioner's mental
health state at the time of the plea. Third, Petitioner asserts that counsel was
ineffective for failing to pursue a guilty but mentally ill defense or plea. Finally,
Petitioner alleges that counsel was ineffective for failing to advise Petitioner of
his prior record score and the appropriate sentencing guideline range prior to
the entry of his plea. The Court will discuss the merits of each of the
Petitioner's claims individually.
With regard to Petitioner's claim that counsel was ineffective in failing to
investigate Petitioner's mental health at the time of the crime, Petitioner has
failed to establish that the underlying claim has arguable merit. Prior to the
commencement of any critical stage of the criminal proceedings, a Competency
Evaluation of Petitioner was completed by Abhishek Jain, MD, of the
Pennsylvania Department of Human Services. Dr. Jain interviewed Petitioner on
June 9, 2016, and submitted a written report on July 7, 2016. The written
report was admitted into evidence at the PCRA hearing as Commonwealth's
7
Exhibit 2. In the report, Dr. Jain states that "Mr. Yingling provided a detailed,
coherent, rational, and non-psychotic account of the alleged events leading to
his charge." Evaluation at 4. Dr. Jain quotes Petitioner as having stated "I had
the mind to cut him up and get rid of him so I wouldn't get caught, but I
couldn't." kL.
Consequently, the Court finds that the Competency Evaluation sufficiently
addresses Petitioner's state of mind at the time of the crime, and a request for
a further evaluation was not warranted. Therefore, this ineffective assistance
claim fails because the underlying claim lacks merit. In any event, given the
findings and conclusions of Dr. Jain, a reasonable basis existed for Attorney
McKee and Attorney Everett to rely on that evaluation and not request that a
separate evaluation be conducted as to Petitioner's mental health at the time of
the crime. Therefore, even if the underlying claim had merit, Petitioner's
argument fails because counsel had a reasonable basis for the decision not to
request an additional evaluation.
Next, the Court addresses Petitioner's claim that counsel was ineffective
for failing to investigate Petitioner's mental health or competency at the time of
8
the plea. Once again, the Court looks to Competency Evaluation conducted by
Dr. Jain. In the written report, Dr. Jain concludes as follows: "It is my opinion,
with a reasonable degree of medical certainty, that although Mr. Yingling has a
likely diagnosis of Unspecified Schizophrenia Spectrum and Other Psychotic
Disorder stemming from a history of auditory hallucinations, these symptoms
are not likely to interfere with his present ability to understand the nature and
object of the proceedings against him, or to participate and assist in his
defense. Thus, it is my opinion that he is presently competent to stand trial."
Evaluation at l l. Given this timely and definite opinion, the Court finds that
Petitioner's underlying claim lacks merit. At the very least, counsel had a
reasonable basis for not requesting another evaluation or questioning
Petitioner's competency to understand and enter the plea.
Next, the Court addresses Petitioner's claim that counsel was ineffective
for failing to pursue a Guilty but Mentally Ill verdict or plea. Section 314 of the
Pennsylvania Crimes Code provides in pertinent part as follows:
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
9
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.
1 8 Pa.CS.A. § 314(a). Furthermore, 1 8 Pa.CS.A. § 314(c) defines mentally ill as
"[o]ne 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."
During the PCRA hearing, Attorney McKee and Attorney Everett testified
that they considered the possibility of such a defense, however, given the
findings and conclusions of Dr. Jain, as set forth in the written Competency
Evaluation, and the plea offer of Third Degree Murder, they did not believe that
seeking a guilty but mentally ill finding was the best strategy. In regards to
trial strategy, "a claim of ineffectiveness will not succeed by comparing, in
hindsight, the trial strategy trial counsel actually employed with the alternatives
foregone." Commonwealth v. Miller, 987 A.2d 638, 653 (Pa. 2009), citing
Commonwealth v. Puksar, 597 Pa. 240, 951 A.2d 267, 277 (2008).
Additionally, in examining effectiveness of trial strategy, " 'the balance tips in
favor of a finding of effective assistance as soon as it is determined that trial
10
counsel's decision had any reasonable basis.' "liL..._ quoting Commonwealth v.
Cooper, 515 Pa. l 53, 527 A.2d 973, 975 (l 987)(additional quotation omitted).
Once again, the Court finds that Petitioner's underlying claim has no merit, and
at the very least, counsel had a reasonable basis for not pursuing a guilty but
mentally ill finding.
Finally, the Court addresses Petitioner's claim that counsel was ineffective
for failing to advise Petitioner of his Prior Record Score and the applicable
sentencing ranges prior to the entry of the guilty plea. This argument is
without merit.
During the PCRA hearing, Attorney Everett testified that although she was
unaware of Petitioner's Prior Record Score at the time of the plea, she did
discuss with Petitioner the possible ranges of sentences. Further, Attorney
Everett testified after she reviewed the Pre-Sentence Investigation report, she
discussed with Petitioner his Prior Record Score and the applicable sentencing
ranges given the Offense Gravity Score of the current offense. Subsequent to
that conversation, Petitioner never informed counsel that he wished to withdraw
his plea. The Court notes that Petitioner never indicated to the Court that he
ll
,
wished to withdraw his plea. The Court also notes that the plea colloquies do
not reference a Prior Record Score, a sentencing range, or a specific sentence
bargain or recommendation. Petitioner's claim must fail because there was a
reasonable basis for the attorneys' actions in continuing with the plea because
Petitioner did not state that he wished to withdraw his plea after becoming
aware of his Prior Record Score and applicable standard range of the sentencing
guidelines.
WHEREFORE, the Court enters the following Order.
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IN THE COURT OF COMMON PLEAS OF INDIANA COUNTY,
PENNSYLVANIA
COMMONWEALTH OF
PENNSYLVANIA,
CRIMINAL DIVISION
vs.
NO. 1059 CRIM 2016
DAVID ALLEN YINGLING,
Petitioner.
ORDER OF COURT
AND NOW this 19th day of September, 2018, this matter having
come before the Court on the Amended Petition Under Post-
Conviction Collateral Relief Act filed on behalf of Petitioner, and the
Court having held a hearing thereon, it is hereby ORDERED,
ADJUDGED, and DECREED that said Amended Petition Under Post-
Conviction Collateral Relief Act is DENIED, consistent with the attached
Opinion.
BY THE COURT:
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Thomas M. Bianco, Judge
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