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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NON-PRECEDENTIAL DECISION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 Commonwealth v. Barndt, 74 A.3d 185, 191 (Pa. Super. 2013) (citing 42 Pa.C.S.A. § 9543(a)(2)(ii)). With respect to a claim of ineffective assistance of counsel, the following three prong test must be satisfied:

[I]n order to obtain relief based on [an IAC] claim, a 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. at 192 (quoting Commonwealth v. Reed, 601 Pa. 257, 97 A.2d 1216, 1221 (2005)).

Wagner argues that his plea was involuntary because his trial counsel and the trial court did not inform him that he was pleading to misdemeanor simple assault charges. Appellant's Brief at 13. According to Wagner, he believed the simple assault charges were the felonies withdrawn by the Commonwealth. Id. Wagner asserts that had he known he was pleading to misdemeanor simple assaults, he never would have entered a plea because he is a registered nurse and would be unable to renew his nursing license due to the misdemeanor simple assault convictions. Id. Wagner's claim lacks merit.

During the plea colloquy, the trial court clearly informed Wagner that he was pleading, inter alia, to three counts of simple assault. See N.T., 8/21/12, at 2-4. When asked whether he understood the charges, which included the three simple assaults, Wagner responded "Yes." Id. at 3-4. As part of the oral colloquy, Wagner admitted that he understands the English language, that he had not consumed drugs or alcohol in the last 48 hours, that he read and understood the written explanation of his plea and the questions contained therein and that he was satisfied with the representation provided by his counsel. Id. at 2, 7. The statements made while under oath in open court at the time of his plea bind Wagner, and he cannot now contradict those statements as a basis for withdrawing his plea. Commonwealth v. Pollard, 832 A.2d 517, 523 (Pa. Super. 2003). We accordingly find no support for Wagner's claim that he did not know that he was pleading to simple assault charges.

Wagner also contends that he did not understand what was going on at the plea hearing because he was suffering from a mental illness, bipolar illness, at that time. Appellant's Brief at 14. The record belies Wagner's claim. As discussed above, Wagner acknowledged that he understood the charges to which he was pleading, including simple assault (N.T., 8/21/12, at 3-4), and there is nothing in the record that would suggest otherwise.

Furthermore, the written plea questionnaire asked Wagner if he "ever had any physical or mental illness that would affect [his] thinking or [his] free will[, ]" and he responded "No." Written Plea, 8/21/12, at ¶ 64. Thus, no relief is due.

Finally, Wagner baldly claims that trial counsel was ineffective for failing to advise him that his nursing license would be in jeopardy by pleading to misdemeanor simple assaults. Appellant's Brief at 16. Even if we assume, arguendo, that Wagner is a registered nurse, that he cannot renew his license because of the simple assault convictions and that trial counsel failed to consult with Wagner regarding the consequence of his plea, we cannot grant relief.

First, in order to obtain relief, the appellant must satisfy his burden to plead and prove each of the three required prongs of an ineffectiveness claim. Barndt, 74 A.3d at 192. Wagner has failed to meet this burden, as he has failed to mention, let alone develop, any argument with respect to the prong requiring no reasonable basis for counsel's failure to act. See Appellant's Brief at 16.

Second, even if Wagner had pled and proved all three prongs of his ineffectiveness claim, counsel cannot be held ineffective for failing to advise a client of the collateral consequences of his plea. Commonwealth v. Abraham, __ Pa. __, __, 62 A.3d 343, 350 (2012), cert. Denied, __ U.S. __, 133 S.Ct. 1504 (2013). Our Supreme Court has explained,

[i]n addressing whether a result is a direct or collateral consequence of pleading guilty, this Court has stated, '[T]he distinction between a direct and collateral consequence of a guilty plea has been effectively defined by this Court as the distinction between a criminal penalty and a civil requirement over which a sentencing judge has no control.'

Id. (quoting Commonwealth v. Leidig, 598 Pa. 211, 956 A.2d 399, 404 (2008)).[5]

In this Commonwealth, whether a nursing license is refused, suspended or revoked is a determination made by the State Board of Nursing. See 63 P.S. § 224. Accordingly, it cannot be said that the trial court has any control over a decision made by the State Board of Nursing with respect to the refusal, suspension or revocation of a nursing license. Because the impact on Wagner's nursing license is a collateral consequence of his plea, trial counsel cannot be found ineffective on this basis. Abraham, __ Pa. at __, 62 A.3d at 350 ("A defendant's lack of knowledge of collateral consequences of the entry of a guilty plea does not undermine the validity of the plea, and counsel is therefore not constitutionally ineffective for failure to advise a defendant of the collateral consequences of a guilty plea.").

Order affirmed.

Judgment Entered.


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