J-S73032-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : FRANK D. CLEMENT : : Appellant : No. 726 WDA 2018
Appeal from the PCRA Order April 21, 2018 In the Court of Common Pleas of Erie County Criminal Division at No(s): CP-25-CR-0002345-2014
BEFORE: GANTMAN, P.J., BENDER, P.J.E., and OLSON, J.
MEMORANDUM BY OLSON, J.: FILED DECEMBER 11, 2018
Appellant, Frank D. Clement, appeals from the April 21, 2018 order
denying his first petition filed pursuant to the Post-Conviction Relief Act
(“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. We affirm.
On November 5, 2002, the United States District Court for the Western
District of Pennsylvania sentenced Appellant to 39 months’ imprisonment after
he pled guilty to one count of possession of material depicting sexual
exploitation of a minor.1 See United States v. Clement, 1:02cr005 (W.D.
Pa.).
____________________________________________
1 18 U.S.C. § 2252. J-S73032-18
From March 2014 through June 2014, Appellant possessed child
pornography. On May 7, 2015, Appellant pled guilty to 20 counts of
possession of child pornography.2 On September 18, 2015, the trial court
sentenced Appellant to an aggregate term of 25 to 50 years’ imprisonment.
This Court affirmed and our Supreme Court denied allowance of appeal.
Commonwealth v. Clement, 156 A.3d 354, 2016 WL 5852151 (Pa. Super.
2016) (unpublished memorandum), appeal denied, 169 A.3d 13 (Pa. 2017).
On October 20, 2017, Appellant filed a pro se PCRA petition. Counsel
was appointed and filed an amended petition. On April 4, 2018, the PCRA
court held an evidentiary hearing. On April 21, 2018, the PCRA court denied
the petition. This timely appeal followed.3
Appellant presents four issues for our review:
1. [Whether plea counsel was ineffective in advising Appellant to plead guilty?
2. Whether plea counsel’s misstatement of the law constituted ineffective assistance of counsel?
3. Whether Appellant’s sentence is illegal pursuant to Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017)?
4. Whether Appellant’s sentence is excessive in violation of the Eighth Amendment?]
2 18 Pa.C.S.A. § 6312(d).
3Appellant and the PCRA court complied with Pennsylvania Rule of Appellate Procedure 1925.
-2- J-S73032-18
Appellant’s Brief at 2 (complete capitalization removed).4
“Our standard of review for issues arising from the denial of PCRA relief
is well-settled. We must determine whether the PCRA court’s ruling is
supported by the record and free of legal error.” Commonwealth v. Presley,
193 A.3d 436, 442 (Pa. Super. 2018) (citation omitted). In his first two
issues, Appellant argues that his plea counsel rendered ineffective assistance
of counsel.
“[T]he Sixth Amendment to the United States Constitution and Article I,
[Section] 9 of the Pennsylvania Constitution, [entitle a defendant] to effective
counsel. This right is violated where counsel’s performance so undermined
the truth-determining process that no reliable adjudication of guilt or
innocence could have taken place.” Commonwealth v. Simpson, 112 A.3d
1194, 1197 (Pa. 2015) (cleaned up). “A criminal defendant has the right to
effective counsel during a plea process as well as during a trial.”
Commonwealth v. Robinson, 185 A.3d 1055, 1063 (Pa. Super. 2018),
appeal denied, 192 A.3d 1105 (Pa. 2018) (citation omitted). However,
“[a]llegations of ineffectiveness in connection with the entry of a guilty plea
will serve as the basis for relief only if the ineffectiveness caused the defendant
to enter an involuntary or unknowing plea.” Id. Moreover, “[c]ounsel is
presumed to have been effective.” Commonwealth v. Andrews, 158 A.3d
4 We have renumbered the issues for ease of disposition.
-3- J-S73032-18
1260, 1263 (Pa. Super. 2017). To prevail on an ineffective assistance of
counsel claim, a petitioner must plead and prove 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.” Commonwealth v. Johnson, 179 A.3d 1153, 1158 (Pa. Super.
2018) (citation omitted). “A petitioner’s failure to satisfy any prong of this
test is fatal to the claim.” Commonwealth v. Wholaver, 177 A.3d 136, 144
(Pa. 2018) (citation omitted).
Appellant argues that plea counsel provided ineffective assistance by
assuring him that he would not receive the mandatory minimum sentence of
25 years’ imprisonment.5 Appellant argues that he pled guilty because, based
on this advice, he believed that he would receive a lighter sentence. The
transcripts of the plea hearing and the evidentiary hearing refute Appellant’s
assertions.
At the plea hearing, Appellant’s plea counsel informed him that he was
subject to a 25-year mandatory minimum. N.T., 5/7/15, at 8. She informed
5 Appellant was subject to a 25 year mandatory minimum for each count to which he pled guilty because of his prior federal conviction for violating 18 U.S.C. § 2252. See 42 Pa.C.S.A. § 9718.2(a)(1) (requiring mandatory 25- year minimum sentence for all individuals previously convicted of offenses listed at 42 Pa.C.S.A. § 9799.14 at time of current offense). Section 2252 is enumerated in 42 Pa.C.S.A. § 9799.14(b)(12).
-4- J-S73032-18
the trial court, however, that Appellant was reserving the right to challenge
the constitutionality of the mandatory minimum on direct appeal. See id.
The trial court stated that it believed the statute was constitutional and plea
counsel conceded that was the current state of the law. See id. at 9. The
on-the-record statements that plea counsel made at the guilty plea hearing
were consistent with the advice she privately gave Appellant. See N.T.,
4/4/18, at 62-63. Hence, we conclude that Appellant was not improperly
advised that he could receive a sentence of less than 25 years, the mandatory
minimum, after pleading guilty.
Appellant argues that plea counsel provided ineffective assistance by
informing him that he lacked a reasonable defense. The record reflects,
however, that plea counsel’s advice was based on a forensic expert’s
examination of the computer in question combined with the information that
Appellant provided plea counsel. See N.T., 4/4/18, at 61. Hence, counsel’s
advice was reasonable based on the information and analysis available to her.
Appellant contends that plea counsel was ineffective for speculating that
his prior child pornography conviction would be admissible at trial. At the
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J-S73032-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : FRANK D. CLEMENT : : Appellant : No. 726 WDA 2018
Appeal from the PCRA Order April 21, 2018 In the Court of Common Pleas of Erie County Criminal Division at No(s): CP-25-CR-0002345-2014
BEFORE: GANTMAN, P.J., BENDER, P.J.E., and OLSON, J.
MEMORANDUM BY OLSON, J.: FILED DECEMBER 11, 2018
Appellant, Frank D. Clement, appeals from the April 21, 2018 order
denying his first petition filed pursuant to the Post-Conviction Relief Act
(“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. We affirm.
On November 5, 2002, the United States District Court for the Western
District of Pennsylvania sentenced Appellant to 39 months’ imprisonment after
he pled guilty to one count of possession of material depicting sexual
exploitation of a minor.1 See United States v. Clement, 1:02cr005 (W.D.
Pa.).
____________________________________________
1 18 U.S.C. § 2252. J-S73032-18
From March 2014 through June 2014, Appellant possessed child
pornography. On May 7, 2015, Appellant pled guilty to 20 counts of
possession of child pornography.2 On September 18, 2015, the trial court
sentenced Appellant to an aggregate term of 25 to 50 years’ imprisonment.
This Court affirmed and our Supreme Court denied allowance of appeal.
Commonwealth v. Clement, 156 A.3d 354, 2016 WL 5852151 (Pa. Super.
2016) (unpublished memorandum), appeal denied, 169 A.3d 13 (Pa. 2017).
On October 20, 2017, Appellant filed a pro se PCRA petition. Counsel
was appointed and filed an amended petition. On April 4, 2018, the PCRA
court held an evidentiary hearing. On April 21, 2018, the PCRA court denied
the petition. This timely appeal followed.3
Appellant presents four issues for our review:
1. [Whether plea counsel was ineffective in advising Appellant to plead guilty?
2. Whether plea counsel’s misstatement of the law constituted ineffective assistance of counsel?
3. Whether Appellant’s sentence is illegal pursuant to Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017)?
4. Whether Appellant’s sentence is excessive in violation of the Eighth Amendment?]
2 18 Pa.C.S.A. § 6312(d).
3Appellant and the PCRA court complied with Pennsylvania Rule of Appellate Procedure 1925.
-2- J-S73032-18
Appellant’s Brief at 2 (complete capitalization removed).4
“Our standard of review for issues arising from the denial of PCRA relief
is well-settled. We must determine whether the PCRA court’s ruling is
supported by the record and free of legal error.” Commonwealth v. Presley,
193 A.3d 436, 442 (Pa. Super. 2018) (citation omitted). In his first two
issues, Appellant argues that his plea counsel rendered ineffective assistance
of counsel.
“[T]he Sixth Amendment to the United States Constitution and Article I,
[Section] 9 of the Pennsylvania Constitution, [entitle a defendant] to effective
counsel. This right is violated where counsel’s performance so undermined
the truth-determining process that no reliable adjudication of guilt or
innocence could have taken place.” Commonwealth v. Simpson, 112 A.3d
1194, 1197 (Pa. 2015) (cleaned up). “A criminal defendant has the right to
effective counsel during a plea process as well as during a trial.”
Commonwealth v. Robinson, 185 A.3d 1055, 1063 (Pa. Super. 2018),
appeal denied, 192 A.3d 1105 (Pa. 2018) (citation omitted). However,
“[a]llegations of ineffectiveness in connection with the entry of a guilty plea
will serve as the basis for relief only if the ineffectiveness caused the defendant
to enter an involuntary or unknowing plea.” Id. Moreover, “[c]ounsel is
presumed to have been effective.” Commonwealth v. Andrews, 158 A.3d
4 We have renumbered the issues for ease of disposition.
-3- J-S73032-18
1260, 1263 (Pa. Super. 2017). To prevail on an ineffective assistance of
counsel claim, a petitioner must plead and prove 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.” Commonwealth v. Johnson, 179 A.3d 1153, 1158 (Pa. Super.
2018) (citation omitted). “A petitioner’s failure to satisfy any prong of this
test is fatal to the claim.” Commonwealth v. Wholaver, 177 A.3d 136, 144
(Pa. 2018) (citation omitted).
Appellant argues that plea counsel provided ineffective assistance by
assuring him that he would not receive the mandatory minimum sentence of
25 years’ imprisonment.5 Appellant argues that he pled guilty because, based
on this advice, he believed that he would receive a lighter sentence. The
transcripts of the plea hearing and the evidentiary hearing refute Appellant’s
assertions.
At the plea hearing, Appellant’s plea counsel informed him that he was
subject to a 25-year mandatory minimum. N.T., 5/7/15, at 8. She informed
5 Appellant was subject to a 25 year mandatory minimum for each count to which he pled guilty because of his prior federal conviction for violating 18 U.S.C. § 2252. See 42 Pa.C.S.A. § 9718.2(a)(1) (requiring mandatory 25- year minimum sentence for all individuals previously convicted of offenses listed at 42 Pa.C.S.A. § 9799.14 at time of current offense). Section 2252 is enumerated in 42 Pa.C.S.A. § 9799.14(b)(12).
-4- J-S73032-18
the trial court, however, that Appellant was reserving the right to challenge
the constitutionality of the mandatory minimum on direct appeal. See id.
The trial court stated that it believed the statute was constitutional and plea
counsel conceded that was the current state of the law. See id. at 9. The
on-the-record statements that plea counsel made at the guilty plea hearing
were consistent with the advice she privately gave Appellant. See N.T.,
4/4/18, at 62-63. Hence, we conclude that Appellant was not improperly
advised that he could receive a sentence of less than 25 years, the mandatory
minimum, after pleading guilty.
Appellant argues that plea counsel provided ineffective assistance by
informing him that he lacked a reasonable defense. The record reflects,
however, that plea counsel’s advice was based on a forensic expert’s
examination of the computer in question combined with the information that
Appellant provided plea counsel. See N.T., 4/4/18, at 61. Hence, counsel’s
advice was reasonable based on the information and analysis available to her.
Appellant contends that plea counsel was ineffective for speculating that
his prior child pornography conviction would be admissible at trial. At the
evidentiary hearing before the PCRA court, however, plea counsel explained
why it was unclear whether Appellant’s prior child pornography conviction
would be admitted at trial. Id. at 60-61. This explanation was reasonable.
Specifically, plea counsel stated that the only defense available to Appellant
involved an attack on the credibility of a third-party. However, Appellant’s
-5- J-S73032-18
pursuit of that strategy would open the door to the jury learning of Appellant’s
prior child pornography conviction. This advice was reasonably directed to
furthering Appellant’s interests. Hence, contrary to Appellant’s arguments, he
was not induced into pleading guilty as a result of ineffective assistance of
counsel. The advice provided by plea counsel was legally correct and
rationally related to advancing Appellant’s interests. Accordingly, Appellant is
not entitled to relief on his first two claims of error.
In his third issue, Appellant argues that he is entitled to relief under
Muniz. Appellant’s crimes, however, occurred after the Sexual Offender
Registration and Notification Act’s enactment date. Hence, the ex post facto
issues addressed in Muniz are not implicated in this case and the PCRA court
correctly denied relief on this claim. See Commonwealth v. Strafford, 194
A.3d 168, 172 n.4 (Pa. Super. 2018).
In his final issue, Appellant argues that his lengthy prison sentence
violated the federal and state constitutional prohibition against cruel and
unusual punishment. This Court, however, has held that imposition of the
mandatory minimum at issue in this case does not violate the state or federal
constitution. See Commonwealth v. Colon-Plaza, 136 A.3d 521, 529–532
(Pa. Super. 2016). Accordingly, the PCRA court properly denied relief on this
claim of error.
Order affirmed.
-6- J-S73032-18
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 12/11/2018
-7-