J-S85023-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : ALBERT GINGERICH : : Appellant : No. 879 WDA 2017
Appeal from the PCRA Order June 1, 2017 In the Court of Common Pleas of Crawford County Criminal Division at No(s): CP-20-CR-0000164-2015
BEFORE: BOWES, J., PANELLA, J., and STABILE, J.
MEMORANDUM BY PANELLA, J. FILED MAY 4, 2018
Albert Gingerich appeals from the order entered in the Crawford County
Court of Common Pleas denying his first petition filed pursuant to the Post
Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. We affirm.
On December 30, 2014, the Commonwealth charged Appellant with 87
counts of sexual misconduct against his juvenile siblings. In exchange for the
Commonwealth’s agreement to nolle pros his remaining charges, Appellant
Appellant pled guilty to rape by forcible compulsion, and two counts of
indecent assault.1 On November 6, 2015, the court sentenced Appellant to an
aggregate five to twenty years’ incarceration, followed by a consecutive term
____________________________________________
1 18 Pa.C.S.A. §§ 3121(a)(1) and 3126(a)(7), respectively. J-S85023-17
of twelve years’ probation.2 Appellant did not file any post-sentence motions
or a direct appeal. Appellant later timely filed his first, pro se PCRA petition.
After the PCRA court appointed counsel, Appellant filed an amended
petition. In that petition, PCRA counsel alleged that both the ineffective
assistance of plea counsel and undue pressure from his church led to an
unknowing and involuntary guilty plea. Specifically, Appellant averred that he
accepted the guilty plea because plea counsel informed him that he would be
subject to mandatory minimum sentences if convicted of any charges subject
to sentencing under 42 Pa.C.S.A. § 9718(a).3 Based upon this information,
Appellant averred that the leadership of his church pressured him to accept
the guilty plea. As the imposition of a mandatory minimum sentence under §
9718(a) had been deemed unconstitutional prior to the filing of Appellant’s
charges,4 he argues that his guilty plea was unknowingly entered and
involuntarily induced.
The PCRA court held a hearing on Appellant’s claims. Appellant testified
that Jeffrey Conrad, Esquire, represented him at the time charges were filed
until his sentencing. Appellant alleged that Attorney Conrad advised him to
2 The court imposed a sentence of five to twenty years for the rape conviction.
3 Until it was deemed unconstitutional by Commonwealth v. Wolfe, 106 A.3d 800 (Pa. Super. 2014) aff’d 140 A.3d 651 (Pa. 2016), 42 Pa. C.S.A. § 9718(a) provided mandatory minimum sentences for a variety of sexual offenses committed against juvenile victims.
4 Wolfe was decided on December 24, 2014, six days prior to the filing of charges against Appellant.
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enter a guilty plea in order to avoid mandatory minimum sentences for
convictions subject to sentencing under § 9718(a). See N.T., PCRA
Evidentiary Hearing, 5/23/17, at 67. Appellant believed that these mandatory
minimum sentences were in place at the time he entered into his guilty plea,
and asserted that Attorney Conrad never advised him otherwise. See id., at
67, 70-71 If Appellant had known that his charges were not subject to
mandatory minimums, Appellant claimed that it would have affected his
decision to plead guilty. See id., at 67-68.
Attorney Conrad confirmed that when he first spoke to Appellant
regarding his charges, he informed him that any convictions pursuant to §
9718(a) would result in the application of mandatory minimum sentences.
See id., at 10-17, 22-23. However, Attorney Conrad testified that once he
learned of the recent change in the law, he “absolutely” informed Appellant—
on more than one occasion—that he was the beneficiary of a change in the
law and that mandatory minimum sentences under § 9718(a) no longer
applied. See id., at 17-19, 23-28. As such, Attorney Conrad stated that
Appellant understood that mandatory minimum sentences did not apply at the
time he entered into his guilty plea on April 27, 2015. See id., at 32.
The PCRA court denied Appellant’s petition and Appellant’s PCRA counsel
timely appealed. The PCRA court directed Appellant to file a Pa.R.A.P. 1925(b)
concise statement of errors complained of on appeal. However, prior to filing
his concise statement, Appellant retained current PCRA counsel, who entered
his appearance on July 5, 2017. The PCRA court granted Appellant an
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extension of time to file his 1925(b) statement, and Appellant ultimately
complied. Therein, Appellant raised for the first time his claims of PCRA
counsel ineffectiveness. See Appellant’s 1925(b) Statement, 7/31/17, at ¶
2(b).
Appellant presents the following questions for our review.
1. DID THE PCRA COURT ERR AND ABUSE ITS DISCRETION BY DENYING [APPELLANT’S] AMENDED PCRA PETITION WHICH SOUGHT TO WITHDRAW [APPELLANT’S] GUILTY PLEA BECAUSE SAID PLEA WAS UNKNOWINGLY AND INVOLUNTARILY ENTERED?
2. WAS [APPELLANT’S] PCRA COUNSEL INEFFECTIVE DURING [APPELLANT’S] PCRA HEARING FOR FAILING TO CALL SEVERAL DEFENSE WITNESSES?
Appellant’s Brief, at 4.
Prior to reaching the merits of Appellant’s issues on appeal, we must
determine if Appellant has preserved his second issue for our review. In its
brief, the Commonwealth argues that Appellant has waived his claim of PCRA
counsel’s ineffectiveness by failing to raise these claims before the PCRA court.
See Commonwealth’s Brief, at 8. We agree.
“[A]bsent recognition of a constitutional right to effective collateral
review, claims of PCRA counsel ineffectiveness cannot be raised for the first
time after a notice of appeal has been taken from the underlying PCRA
matter.” Commonwealth v. Ford, 44 A.3d 1190, 1201 (Pa. Super. 2012).
See also Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super. 2014) (en
banc). Here, Appellant did not raise PCRA counsel’s ineffectiveness before the
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PCRA court. Instead, Appellant raised his claim of PCRA counsel
ineffectiveness for the first time in his Rule 1925(b) concise statement, which
was filed more than a month after he filed his notice of appeal. Thus, Appellant
has failed to preserve the issue of PCRA counsel’s ineffectiveness.
Moving to Appellant’s remaining claim on appeal, Appellant asserts the
PCRA court abused its discretion by failing to grant Appellant’s request to
withdraw his guilty plea. Appellant contends he was entitled to withdraw his
plea as the ineffectiveness of guilty plea counsel as well as undue pressure
from church leadership led to an unknowing and involuntary guilty plea.
However, Appellant fails to support his argument that undue pressure from
church leadership to plead guilty entitled him to PCRA relief with any citation
to authority. As Appellant has not properly developed his argument pursuant
to Pa.R.A.P. 2119(b), we find this argument waived. See, e.g.,
Commonwealth v.
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J-S85023-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : ALBERT GINGERICH : : Appellant : No. 879 WDA 2017
Appeal from the PCRA Order June 1, 2017 In the Court of Common Pleas of Crawford County Criminal Division at No(s): CP-20-CR-0000164-2015
BEFORE: BOWES, J., PANELLA, J., and STABILE, J.
MEMORANDUM BY PANELLA, J. FILED MAY 4, 2018
Albert Gingerich appeals from the order entered in the Crawford County
Court of Common Pleas denying his first petition filed pursuant to the Post
Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. We affirm.
On December 30, 2014, the Commonwealth charged Appellant with 87
counts of sexual misconduct against his juvenile siblings. In exchange for the
Commonwealth’s agreement to nolle pros his remaining charges, Appellant
Appellant pled guilty to rape by forcible compulsion, and two counts of
indecent assault.1 On November 6, 2015, the court sentenced Appellant to an
aggregate five to twenty years’ incarceration, followed by a consecutive term
____________________________________________
1 18 Pa.C.S.A. §§ 3121(a)(1) and 3126(a)(7), respectively. J-S85023-17
of twelve years’ probation.2 Appellant did not file any post-sentence motions
or a direct appeal. Appellant later timely filed his first, pro se PCRA petition.
After the PCRA court appointed counsel, Appellant filed an amended
petition. In that petition, PCRA counsel alleged that both the ineffective
assistance of plea counsel and undue pressure from his church led to an
unknowing and involuntary guilty plea. Specifically, Appellant averred that he
accepted the guilty plea because plea counsel informed him that he would be
subject to mandatory minimum sentences if convicted of any charges subject
to sentencing under 42 Pa.C.S.A. § 9718(a).3 Based upon this information,
Appellant averred that the leadership of his church pressured him to accept
the guilty plea. As the imposition of a mandatory minimum sentence under §
9718(a) had been deemed unconstitutional prior to the filing of Appellant’s
charges,4 he argues that his guilty plea was unknowingly entered and
involuntarily induced.
The PCRA court held a hearing on Appellant’s claims. Appellant testified
that Jeffrey Conrad, Esquire, represented him at the time charges were filed
until his sentencing. Appellant alleged that Attorney Conrad advised him to
2 The court imposed a sentence of five to twenty years for the rape conviction.
3 Until it was deemed unconstitutional by Commonwealth v. Wolfe, 106 A.3d 800 (Pa. Super. 2014) aff’d 140 A.3d 651 (Pa. 2016), 42 Pa. C.S.A. § 9718(a) provided mandatory minimum sentences for a variety of sexual offenses committed against juvenile victims.
4 Wolfe was decided on December 24, 2014, six days prior to the filing of charges against Appellant.
-2- J-S85023-17
enter a guilty plea in order to avoid mandatory minimum sentences for
convictions subject to sentencing under § 9718(a). See N.T., PCRA
Evidentiary Hearing, 5/23/17, at 67. Appellant believed that these mandatory
minimum sentences were in place at the time he entered into his guilty plea,
and asserted that Attorney Conrad never advised him otherwise. See id., at
67, 70-71 If Appellant had known that his charges were not subject to
mandatory minimums, Appellant claimed that it would have affected his
decision to plead guilty. See id., at 67-68.
Attorney Conrad confirmed that when he first spoke to Appellant
regarding his charges, he informed him that any convictions pursuant to §
9718(a) would result in the application of mandatory minimum sentences.
See id., at 10-17, 22-23. However, Attorney Conrad testified that once he
learned of the recent change in the law, he “absolutely” informed Appellant—
on more than one occasion—that he was the beneficiary of a change in the
law and that mandatory minimum sentences under § 9718(a) no longer
applied. See id., at 17-19, 23-28. As such, Attorney Conrad stated that
Appellant understood that mandatory minimum sentences did not apply at the
time he entered into his guilty plea on April 27, 2015. See id., at 32.
The PCRA court denied Appellant’s petition and Appellant’s PCRA counsel
timely appealed. The PCRA court directed Appellant to file a Pa.R.A.P. 1925(b)
concise statement of errors complained of on appeal. However, prior to filing
his concise statement, Appellant retained current PCRA counsel, who entered
his appearance on July 5, 2017. The PCRA court granted Appellant an
-3- J-S85023-17
extension of time to file his 1925(b) statement, and Appellant ultimately
complied. Therein, Appellant raised for the first time his claims of PCRA
counsel ineffectiveness. See Appellant’s 1925(b) Statement, 7/31/17, at ¶
2(b).
Appellant presents the following questions for our review.
1. DID THE PCRA COURT ERR AND ABUSE ITS DISCRETION BY DENYING [APPELLANT’S] AMENDED PCRA PETITION WHICH SOUGHT TO WITHDRAW [APPELLANT’S] GUILTY PLEA BECAUSE SAID PLEA WAS UNKNOWINGLY AND INVOLUNTARILY ENTERED?
2. WAS [APPELLANT’S] PCRA COUNSEL INEFFECTIVE DURING [APPELLANT’S] PCRA HEARING FOR FAILING TO CALL SEVERAL DEFENSE WITNESSES?
Appellant’s Brief, at 4.
Prior to reaching the merits of Appellant’s issues on appeal, we must
determine if Appellant has preserved his second issue for our review. In its
brief, the Commonwealth argues that Appellant has waived his claim of PCRA
counsel’s ineffectiveness by failing to raise these claims before the PCRA court.
See Commonwealth’s Brief, at 8. We agree.
“[A]bsent recognition of a constitutional right to effective collateral
review, claims of PCRA counsel ineffectiveness cannot be raised for the first
time after a notice of appeal has been taken from the underlying PCRA
matter.” Commonwealth v. Ford, 44 A.3d 1190, 1201 (Pa. Super. 2012).
See also Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super. 2014) (en
banc). Here, Appellant did not raise PCRA counsel’s ineffectiveness before the
-4- J-S85023-17
PCRA court. Instead, Appellant raised his claim of PCRA counsel
ineffectiveness for the first time in his Rule 1925(b) concise statement, which
was filed more than a month after he filed his notice of appeal. Thus, Appellant
has failed to preserve the issue of PCRA counsel’s ineffectiveness.
Moving to Appellant’s remaining claim on appeal, Appellant asserts the
PCRA court abused its discretion by failing to grant Appellant’s request to
withdraw his guilty plea. Appellant contends he was entitled to withdraw his
plea as the ineffectiveness of guilty plea counsel as well as undue pressure
from church leadership led to an unknowing and involuntary guilty plea.
However, Appellant fails to support his argument that undue pressure from
church leadership to plead guilty entitled him to PCRA relief with any citation
to authority. As Appellant has not properly developed his argument pursuant
to Pa.R.A.P. 2119(b), we find this argument waived. See, e.g.,
Commonwealth v. Brougher, 978 A.2d 373, 376 (Pa. Super. 2009) (finding
claim waived where there was no citation to relevant authority). Thus,
Appellant’s sole preserved argument on appeal is his claim that the ineffective
assistance of guilty plea counsel resulted in an unknowing and involuntary
guilty plea.
“On appeal from the denial of PCRA relief, our standard and scope of
review is limited to determining whether the PCRA court’s findings are
supported by the record and without legal error.” Commonwealth v.
Edmiston, 65 A.3d 339, 345 (Pa. 2013) (citation omitted). The PCRA court’s
findings will not be disturbed unless the certified record lacks support for the
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findings. See Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super.
2001). “Further, the PCRA court’s credibility determinations are binding on
this Court, where there is record support for those determinations.”
Commonwealth v. Anderson, 995 A.2d 1184, 1189 (Pa. Super. 2010)
(citation omitted).
In order to be eligible for PCRA relief, the petitioner must prove by a preponderance of the evidence that his conviction or sentence resulted from one or more of the enumerated circumstances found in Section 9543(a)(2), which includes the ineffective assistance of counsel.
It is well-established that counsel is presumed effective, and to rebut that presumption, the PCRA petitioner must demonstrate that counsel’s performance was deficient and that such deficiency prejudiced him. To prevail on an ineffectiveness claim, the petitioner had the burden to prove that (1) the underlying substantive claim has arguable merit; (2) counsel whose effectiveness is being challenged did not have a reasonable basis for his or her actions or failure to act; and (3) the petitioner suffered prejudice as a result of counsel’s deficient performance. The failure to satisfy any one of the prongs will cause the entire claim to fail.
Commonwealth v. Benner, 147 A.3d 915, 919-920 (Pa. Super. 2016)
(quotation marks and citations omitted).
Allegations of counsel’s ineffectiveness during the guilty plea process
are cognizable under the PCRA. See Commonwealth v. Hickman, 799 A.2d
136, 141 (Pa. Super. 2002). See also Commonwealth v. Lee, 820 A.2d
1285, 1287 (Pa. 2003) (“Claims challenging the effectiveness of [plea]
counsel’s stewardship during a guilty plea are cognizable under 42 Pa.C.S.A.
§ 9543(a)(2)(ii).”). However, “[a]llegations of ineffectiveness in connection
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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.” Commonwealth v. Allen, 833 A.2d 800, 802 (Pa. Super. 2003)
Appellant’s claim of ineffective assistance rests upon his contention that
Attorney Conrad failed to inform him that mandatory minimum sentences no
longer applied to his charges. Attorney Conrad denied that he failed to inform
Appellant of this change in the law. In fact, Attorney Conrad testified that he
informed Appellant multiple times of this change in the law, and was
absolutely certain that Appellant was aware that he was no longer subject to
mandatory minimum sentences at the time of his guilty plea. In ruling against
Appellant, the PCRA court accepted Attorney Conrad’s testimony as credible
and accurate—and squarely rejected Appellant’s version of events. See PCRA
Court’s Opinion, 6/2/17, at 7-8. The record supports this credibility
determination is supported by testimony of record, and thus, we are bound
by it.
Appellant has failed to demonstrate that there is arguable merit to the
underlying claim of ineffectiveness. Therefore, there is no basis to conclude
that ineffective assistance of counsel caused him to enter an involuntary guilty
plea.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 5/4/2018
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