Com. v. Morancy, M. ( 2023 )


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  • J-S02005-23
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA              :    IN THE SUPERIOR COURT OF
    :         PENNSYLVANIA
    :
    v.                           :
    :
    :
    MARIO MORANCY                             :
    :
    Appellant              :    No. 1221 MDA 2022
    Appeal from the PCRA Order Entered August 16, 2022
    In the Court of Common Pleas of Berks County
    Criminal Division at No(s): CP-06-CR-0002842-2017
    BEFORE: PANELLA, P.J., OLSON, J., and DUBOW, J.
    MEMORANDUM BY PANELLA, P.J.:               FILED: MAY 1, 2023
    Mario Morancy appeals pro se from the order entered in the Berks
    County Court of Common Pleas on December 9, 2019, dismissing his petition
    filed pursuant to the Post Conviction Relief Act. After careful review, we affirm.
    Morancy was charged with criminal homicide, first-degree murder, third-
    degree murder, four counts of aggravated assault, attempted homicide,
    burglary, criminal trespass, and possessing instruments of crime. These
    charges arose from an incident on May 7, 2017 in which Morancy discharged
    a shotgun multiple times at two brothers. One brother died as a result of his
    injuries, and the other brother sustained serious bodily injury.
    J-S02005-23
    On December 9, 2019, Morancy entered an open nolo contendere plea
    to third-degree murder and attempted homicide.1 All other charges were
    dismissed. Morancy was sentenced the same day to an aggregate term of
    thirty to sixty years’ incarceration. Morancy filed a timely post-sentence
    motion seeking to withdraw his plea. The trial court denied the motion without
    a hearing.
    On January 16, 2020, trial counsel filed a timely notice of appeal along
    with a motion to withdraw as counsel. The trial court granted trial counsel
    leave to withdraw and appointed new appellate counsel. Appellate counsel
    subsequently filed an Anders2 brief and a petition to withdraw as counsel with
    this Court. In the Anders brief, counsel raised a potential issue regarding the
    voluntariness of Morancy’s nolo contendere plea. This Court concluded the trial
    court did not err in finding Morancy was not entitled to withdraw his plea
    ____________________________________________
    1 Morancy and the Commonwealth had initially reached an agreement whereby
    Morancy would enter an open plea, with further agreement to enter the plea
    as guilty but mentally ill. See N.T., 12/9/19, at 3. Morancy did not dispute
    that he fired multiple shots at the two victims, killing one, and seriously
    injuring another. See id. at 7, 11. However, Morancy indicated he could not
    recall the specific facts of the offenses. See id. at 9. Accordingly, the
    Commonwealth stated it was willing to accept a nolo contendere plea, instead
    of a guilty plea, if Morancy acknowledged the Commonwealth would be able
    to prove the necessary facts at trial. See id. at 13. Morancy acknowledged
    this on the record, and the written colloquy was updated to reflect the change
    from a guilty plea to a nolo contendere plea. See id. at 14-15. The court then
    made a determination on the record that Morancy “met his burden that at the
    time of the offense he was guilty but mentally ill”. Id. at 17.
    2   Anders v. California, 
    386 U.S. 738
     (1967).
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    because the record showed that Morancy entered his plea knowingly,
    intelligently, and voluntarily. See Commonwealth v. Morancy, 
    240 A.3d 932
    , 129 MDA 2020 (Pa. Super., filed September 15, 2020) (unpublished
    memorandum). Accordingly, we agreed the appeal was frivolous and affirmed
    Morancy’s judgment of sentence, and granted appellate counsel leave to
    withdraw.
    On December 3, 2020, Morancy filed a pro se PCRA petition, claiming
    his plea was unlawfully induced due to his mental health issues, his sentence
    was illegal, and his plea counsel was ineffective. PCRA counsel was appointed,
    but did not file an amended petition. Instead, counsel filed a Finley3 no-merit
    letter, along with a petition to withdraw as counsel. The PCRA court
    subsequently issued notice of its intent to dismiss the petition without a
    hearing pursuant to Pa.R.Crim.P. 907. After receiving an extension of time,
    Morancy filed a response to the Rule 907 notice, in which he changed his
    ineffectiveness claims to layered ineffectiveness claims of all prior counsel;
    PCRA counsel, appellate counsel, and plea counsel. The PCRA court reviewed
    and ultimately dismissed the PCRA petition. This timely appeal followed.
    On appeal, Morancy raises a layered claim of ineffective assistance of
    PCRA counsel. Specifically, he argues PCRA counsel was ineffective for failing
    ____________________________________________
    3   See Commonwealth v. Finley, 
    550 A.2d 213
     (Pa. Super. 1988) (en banc).
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    to properly litigate and layer the following ineffectiveness claims against prior
    counsel:
    a. Was direct appeal counsel ineffective by failing to claim trial
    counsel's ineffectiveness in neglecting to advise [Morancy] to
    exercise his rights in attempt to withdraw his guilty but mentally
    ill plea [agreement] after the trial court refused to accept the plea,
    due to lack of memory; moreover, counsel advised [Morancy] to
    plead no contest?
    b. Was direct appeal counsel ineffective by failing to allege trial
    counsel's ineffectiveness for failure to argue an insanity defense
    when the trial court refused to accept [Morancy’s] guilty but
    mentally ill plea [agreement] (to murder of third degree and
    attempted murder in the first degree), due to lack of memory of
    the facts of the crimes committed?
    c. Was direct appeal counsel ineffective by failing to challenge trial
    counsel's ineffectiveness for failing to object to the sentencing, on
    both: third degree murder and attempted murder in the first
    degree, where [the] Commonwealth and [the] trial court failed to
    show intentional, knowingly, and/or malice?
    Appellant’s Brief, at 4.
    Our “standard of review for an order denying post-conviction relief is
    limited to whether the record supports the PCRA court’s determination, and
    whether that decision 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. Walters, 
    135 A.3d 589
    , 591 (Pa. Super. 2016) (citation
    omitted).
    Generally, “[t]he PCRA court may dismiss a petition without a hearing
    when the court is satisfied that there are no genuine issues concerning any
    material fact, the defendant is not entitled to post conviction collateral relief,
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    and no legitimate purpose would be served by any further proceedings.”
    Commonwealth v. Johnson, 
    139 A.3d 1257
    , 1273 (Pa. 2016) (citation and
    internal quotation mark omitted). When the PCRA court denies a petition
    without an evidentiary hearing, we “examine each issue raised in the PCRA
    petition in light of the record certified before it in order to determine if the
    PCRA court erred in its determination that there were no genuine issues of
    material fact in controversy and in denying relief without conducting an
    evidentiary hearing.” Commonwealth v. Khalifah, 
    852 A.2d 1238
    , 1240
    (Pa. Super. 2004) (citation omitted).
    Morancy’s claims challenge the effectiveness of counsel. “A criminal
    defendant has the right to effective counsel during a plea process as well as
    during trial.” Commonwealth v. Rathfon, 
    899 A.2d 365
    , 369 (Pa. Super.
    2006) (citation omitted). However, “[a]llegations 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. Hickman, 
    799 A.2d 136
    , 141 (Pa. Super. 2002)
    (citation omitted).4 Also, “[w]here the defendant enters his plea on the advice
    of counsel, the voluntariness of the plea depends upon whether counsel’s
    ____________________________________________
    4For purposes of review, a plea of nolo contendere is treated the same as a
    guilty plea. See Commonwealth v. Lewis, 
    791 A.2d 1227
    , 1230 (Pa. Super.
    2002).
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    advice was within the range of competence demanded of attorneys in criminal
    cases.” 
    Id.
     (internal quotation marks and citations omitted).
    We presume counsel is effective, and a PCRA petitioner bears the burden
    to prove otherwise. See Commonwealth v. Bennett, 
    57 A.3d 1185
    , 1195
    (Pa. 2012). The test for ineffective assistance of counsel is the same under
    both the Federal and Pennsylvania Constitutions. See Strickland v.
    Washington, 
    466 U.S. 668
    , 687-88 (1984); Commonwealth v. Kimball,
    
    724 A.2d 326
    , 330-332 (Pa. 1999). A petitioner must demonstrate: (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 proceedings would have been different.
    See Commonwealth v. Solano, 
    129 A.3d 1156
    , 1162-63 (Pa. 2015). A
    failure to satisfy any prong of the test for ineffectiveness requires rejection of
    the claim. See id. at 1163.
    When an appellant claims PCRA counsel was ineffective for failing to
    challenge prior counsel's effectiveness, the appellant must present a layered
    claim of ineffectiveness. See Commonwealth v. McGill, 
    832 A.2d 1014
    ,
    1022-23 (Pa. 2003).
    Where the defendant asserts a layered ineffectiveness claim
    he must properly argue each prong of the three-prong
    ineffectiveness test for each separate attorney.
    Layered claims of ineffectiveness are not wholly distinct
    from the underlying claims, because proof of the underlying claim
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    is an essential element of the derivative ineffectiveness claim. In
    determining a layered claim of ineffectiveness, the critical inquiry
    is whether the first attorney that the defendant asserts was
    ineffective did, in fact, render ineffective assistance of counsel. If
    that attorney was effective, then subsequent counsel cannot be
    deemed ineffective for failing to raise the underlying issue.
    Commonwealth v. Rykard, 
    55 A.3d 1177
    , 1190 (Pa. Super. 2012) (citations
    omitted and formatting altered). In any event, it is well settled that “counsel
    cannot be deemed ineffective for failing to raise a meritless claim.”
    Commonwealth v. Treiber, 
    121 A.3d 435
    , 445 (Pa. 2015) (citation
    omitted).
    Unfortunately, Morancy’s claims are underdeveloped. While he does
    present subsections for each prong of the ineffectiveness test under each
    individual claim, he does not address each prong with respect to all three
    counsel included in his layered claim. Instead, within each claim, he switches
    aimlessly between trial counsel and PCRA counsel. See e.g. Appellant’s Brief,
    at 9-14 (analyzing the arguable merit prong for the first claim in regards to
    trial counsel only), compare Appellant’s Brief, at 14-17 (analyzing the
    reasonable basis and prejudice prongs for the first claim in regards to PCRA
    counsel only). We could therefore deny relief on this basis alone.
    In any event, Morancy’s claims would nevertheless be without merit.
    Morancy’s primary claim on appeal is that trial counsel was ineffective by
    failing to advise Morancy to withdraw his guilty plea when the trial court
    rejected his plea of guilty but mentally ill. See Appellant’s Brief, at 9, 12.
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    Morancy claims trial counsel was further ineffective by advising Morancy to
    tender a plea of nolo contendere instead. See 
    id.
    However, Morancy has not established that his plea of guilty but
    mentally ill was rejected by the trial court. Both the sentencing transcript and
    an order of the court entered on the date of sentencing indicate that the court
    made a determination on the record that Morancy met his burden to prove he
    was guilty but mentally ill. See N.T., 12/9/19, at 17; see also Order, 12/9/19.
    Nevertheless, even if we gave Morancy the benefit of the doubt, and found
    the record was ambiguous as to whether the court accepted or rejected a
    finding of guilty but mentally ill, Morancy has failed to establish that he
    suffered any prejudice from such a rejection.
    The only distinction between the convicted defendant and the
    convicted defendant determined to have been mentally ill at the
    time of the commission of the offense is that, in the case of the
    latter, the judge, before imposing sentence, must take testimony
    and make a finding as to whether the person at the time of
    sentencing is severely mentally disabled and in need of treatment.
    … Thus, the only effect of a verdict of guilty but mentally ill is to
    trigger an inquiry at the time of sentencing to determine the
    defendant’s mental status at the time of the sentencing phase.
    Commonwealth v. Sohmer, 
    546 A.2d 601
    , 606-07 (Pa. 1988).
    The additional finding of being mentally ill at the time of the offense has
    no impact on the adjudicative process. Rather, it simply triggers an inquiry at
    the time of sentencing to determine whether the person at the time of
    sentencing is severely mentally disabled and in need of treatment at that time.
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    The duration of the sentence, however, is not affected by a determination of
    guilty but mentally ill.
    [A] guilty but mentally ill defendant may have any sentence
    imposed on him which may lawfully be imposed on any defendant
    convicted of the same offense, and is entitled to no reduction in
    the term as a result of the finding of mental illness. Likewise, a
    defendant found guilty but mentally ill cannot evade a mandatory
    minimum sentence. The only distinction between guilty but
    mentally ill and guilty at sentencing is that the judge is required
    to hear testimony and make a finding on the issue of whether the
    defendant at the time of sentencing is severely mentally disabled
    and in need of treatment. Mental health treatment is then
    provided in accordance with available resources.
    Miskovitch v. Pennsylvania Bd. of Probation and Parole, 
    77 A.3d 66
    , 71-
    72 (Pa. Commw. Ct. 2013) (citations and internal quotation marks omitted).
    Since the guilty but mentally ill plea would affect only whether Morancy
    received treatment after sentencing, Morancy has not identified any basis that
    would have entitled him to withdraw his plea even if the trial court had
    rejected his guilty but mentally ill plea. Further, Morancy has not alleged or
    argued that he was still mentally ill at the time of sentencing. Nor has he
    alleged or argued that the sentencing court failed to determine whether he
    was mentally ill at the time of sentencing. Finally, he has failed to allege or
    argue that he was in need of treatment at the time of sentencing. As a result,
    he has not demonstrated any prejudice, even if we assume the trial court
    rejected his guilty but mentally ill plea. He therefore has not established either
    the arguable merit or the prejudice prong of his ineffectiveness claim.
    Order affirmed. Jurisdiction relinquished.
    -9-
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    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 05/01/2023
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