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[U] Commonwealth v. Wagner

Superior Court of Pennsylvania

February 20, 2014

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
ADAM MARSHALL WAGNER, Appellant

NON-PRECEDENTIAL DECISION

Appeal from the PCRA Order July 1, 2013, Court of Common Pleas, Allegheny County, Criminal Division at No(s). CP-02-CR-0001595-2012, CP-02-CR-0001625-2012 and CP-02-CR-0001627-2012

BEFORE: FORD ELLIOTT, P.J.E., DONOHUE and PLATT [*] , JJ.

MEMORANDUM

DONOHUE, J.

Adam Marshall Wagner ("Wagner") appeals from the July 1, 2013 order of the Court of Common Pleas, Allegheny County, dismissing without a hearing his petition filed pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. §§ 9541-9546. After careful review, we affirm.

The Commonwealth charged Wagner with various crimes stemming from the events occurring at the victim's home on three separate occasions. Regarding the events of August 12, 2011, the Commonwealth charged Wagner at criminal complaint 201201595 with burglary (F1), simple assault (M2), loitering and prowling at nighttime (M3), harassment (S), criminal mischief (S), and public drunkenness (S).[1] With respect to the events of October 8, 2011, the Commonwealth charged Wagner at criminal complaint 201201627 with burglary (F1), stalking (M1), simple assault (M2) and criminal mischief (S).[2] Following the events of November 26, 2011, the Commonwealth charged Wagner at criminal complaint 201201625 with stalking (M1), simple assault (M2), loitering and prowling at nighttime (M3), harassment (S), criminal mischief (S) and defiant trespass (S).[3]

On August 21, 2012, in exchange for the withdrawal of the two felony burglary charges and a sentence of probation, Wagner pled guilty to the remaining charges resulting from the August 12, 2011 and October 8, 2011 incidents and pled nolo contendere to the charges stemming from the November 26, 2011 incident.[4] Following the acceptance of Wagner's pleas, the trial court ordered him to pay costs and restitution, to serve two years of probation and to have no contact with the victim.

Wagner failed to file post-sentence motions or a direct appeal. Instead, Wagner filed a timely pro se PCRA petition. The PCRA court responded by appointing counsel. On April 26, 2013, counsel filed an amended PCRA petition. The PCRA court, however, determined that Wagner's petition was frivolous and lacked support in the record, and it entered notice of its intent to dismiss Wagner's petition without a hearing pursuant to Pa.R.Crim.P. 907. Wagner did not respond to the notice of intent to dismiss, and the PCRA court dismissed his petition on July 1, 2013.

Thereafter, Wagner filed a timely notice of appeal followed by a court-ordered Pa.R.A.P. 1925(b) statement. The PCRA court filed its opinion pursuant to Pa.R.A.P. 1925(a) on September 20, 2013.

On appeal, Wagner presents the following issue for our review:
1. Did the trial court err in denying [Wagner's] PCRA petition since [Wagner's] plea was involuntary since he was never informed by trial counsel Weyant [sic] or the trial court that he was pleading guilty or entering a nolo contendere plea to misdemeanor simple assault charges- he was under the mistaken impression that the felonies that were withdrawn were the simple assault charges, and if he had known that he was pleading to misdemeanor simple assaults he would never have pled since he avers that he is a registered nurse and cannot get his nursing license renewed with the misdemeanor simple assault convictions. Moreover, [Wagner] was suffering from a mental illness (bipolar illness) at the time of his pleas and did not understand what was transpiring at the plea hearing. Additionally, [t]rial counsel was ineffective for failing to inform [Wagner] that misdemeanor simple assault convictions would put his nursing license in jeopardy. [Wagner] also avers that he is innocent of the instant crimes and related this information to trial counsel?

Appellant's Brief at 3.

Our standard for reviewing an order denying PCRA relief is "whether the determination of the PCRA court is supported by the evidence of record and 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. Wah, 42 A.3d 335, 338 (Pa. Super. 2012) (internal citations omitted).

In his brief, Wagner raises a claim of ineffective assistance of counsel in connection with his plea. Appellant's Brief at 13-16. Wagner's ineffectiveness claim is cognizable under the PCRA. See Commonwealthv. Barndt, 74 A.3d 185, 191 (Pa. Super. 2013) (citing 42 Pa.C.S.A. ยง 9543(a)(2)(ii)). With respect to a claim of ...


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