Commonwealth v. Begnoche

• Decision Date: 05 February 2015
• Docket Number: No. 286 MDA 2014,J-S78036-14,286 MDA 2014
• Parties: COMMONWEALTH OF PENNSYLVANIA, Appellee v. PAUL JOSEPH BEGNOCHE, Appellant
• Court: Pennsylvania Superior Court

COMMONWEALTH OF PENNSYLVANIA, Appellee v. PAUL JOSEPH BEGNOCHE, Appellant

J-S78036-14

No. 286 MDA 2014

SUPERIOR COURT OF PENNSYLVANIA

FEBRUARY 5, 2015

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the PCRA Order entered on January 24, 2014 in the Court of Common Pleas of Dauphin County, Criminal Division, No. CP-22-CR-0004038-2010

BEFORE: GANTMAN, P.J., JENKINS and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:

Paul Joseph Begnoche ("Begnoche"), pro se, appeals from the Order dismissing his first Petition filed pursuant to the Post Conviction Relief Act ("PCRA"). See 42 Pa.C.S.A. §§ 9541-9546. We affirm.

The PCRA court set forth the relevant underlying facts as follows:

In 2010, [Begnoche] was arrested and charged with the following: Rape of a Child Under 13 Years of Age, Involuntary Deviate Sexual Intercourse with a Child Under 13 Years of Age, Statutory Sexual Assault, Incest, Indecent Assault - Person Under 13 Years of Age, Unlawful Contact or Communication with a Minor. [The charges arose out of Begnoche's assaults of his daughter, who was between seven and ten years old at the time of the incidents.] On December 5, 2011, [] Begnoche entered a negotiated plea of nolo contendere to all charges, and on the same day[,] he was sentenced to an aggregate term of incarceration of ten (10) to twenty (20) years[,] followed by a consecutive term of ten (10) years' probation[,] along with payment of costs of prosecution and fines totaling $5,500. An Order was entered on April 2, 2012[,] classifying [Begnoche] as a Sexually Violent Predator ["SVP"]. No direct appeal was taken.

On November 8, 2012, [Begnoche] filed a timely first PCRA Petition[,] for which [the PCRA c]ourt appointed counsel. On February 7, 2013, PCRA counsel filed a Motion to withdraw along with a "Turner/Finley¹ Letter." The Commonwealth filed an Answer to PCRA counsel's Motion on June 12, 2013. [Begnoche] also filed several pro se filings[,] including objections to PCRA counsel's Motion and "Turner/Finley Letter" and the Commonwealth's response.

PCRA Court Opinion, 12/30/13, at 1-2 (footnotes omitted, footnote added).

The PCRA court allowed PCRA counsel to withdraw and provided Begnoche Notice of Intent to Dismiss the Petition Without a Hearing. Begnoche filed an Objection to the Notice. The PCRA court subsequently dismissed Begnoche's Petition. Begnoche filed a timely Notice of Appeal.

On appeal, Begnoche has included a Statement of Questions raising fourteen questions, some including sub-issues. See Brief for Appellant at ix-xi. Due to the volume of the questions presented, we will not restate them herein. We additionally note that Begnoche has filed an appellate brief that exceeds 100 pages.

Pennsylvania Rule of Appellate Procedure 2135² clearly states that "[u]nless otherwise prescribed by an appellate court ... a principal brief shall not exceed 14,000 words." Pa.R.A.P. 2135(a)(1). Further, "[a] principal brief that does not exceed 30 pages when produced by a word processor ortypewriter shall be deemed to meet the limitations in paragraph (a)(1)." Pa.R.A.P. 2135(d). While Begnoche's brief is clearly in violation of the word limit, we do not deem Begnoche's claims waived.

Initially, we will address Begnoche's claims related to his entry of his nolo contendere plea. Begnoche contends that his plea counsel's ineffectiveness caused him to enter the involuntary plea. See Brief for Appellant at 4, 7, 68, 71, 79-80, 82, 83-84; see also id. at 105-06 (wherein Begnoche argues that his plea counsel apologized for his representation). Begnoche claims that counsel did not adequately discuss the plea terms prior to the plea colloquy. Id. at 69, 74, 76-78. Begnoche additionally asserts that counsel failed to prepare a proper defense strategy, which resulted in the nolo contendere plea. Id. at 71, 78. Begnoche also argues that counsel led him to believe that he was being transported to court for a pre-trial conference, and not a plea colloquy. Id. at 72-73, 74. Begnoche claims that as a result, he was overwhelmed by the process and did not enter a voluntary plea. Id. at 72-73.

Begnoche further argues that he did not enter a voluntary plea because the trial court violated the terms of the plea agreement when it re-negotiated the terms of the plea during the oral colloquy. Id. at 93-96. Begnoche also asserts that plea was unknowingly given because the trial court did not adequately define the nature of the charges he was facing during the colloquy. Id. at 4, 74, 98-99; see also id. at 1-3 (whereinBegnoche argues that he was unaware of the terms of the plea colloquy and therefore entered an involuntary plea). Begnoche claims that the date of the offense utilized during the plea colloquy was erroneous. Id. at 97.

Here, the trial court addressed Begnoche's claims and determined them to be without merit. See Trial Court Opinion, 12/30/13, at 5-10;³ see also Written Plea Colloquy, 12/5/11, at 1-4 (unnumbered); N.T., 12/5/11, at 2-9. We adopt the sound reasoning of the trial court for the purpose of this appeal. See Trial Court Opinion, 12/30/13, at 5-10; see also Commonwealth v. Stork, 737 A.2d 789, 790-91 (Pa. Super. 1999) (stating that "[a] defendant is bound by the statements he makes during his plea colloquy, and may not assert grounds for withdrawing the plea that contradict statements made when he pled.").

We additionally note that Begnoche has not demonstrated that the trial court changed the terms of the plea during the oral colloquy. Indeed, the Commonwealth correctly pointed out to the trial court the terms of the negotiated plea agreement with regard to Begnoche's sentence. Begnoche does not show that the Commonwealth misrepresented the terms of the negotiated plea. Moreover, with regard the date of the offense, Begnoche accepted the date of offense, as stated during the plea colloquy, in enteringhis nolo contendere plea. N.T., 12/5/11, at 5;⁴ see also Stork, 737 A.2d at 790-91. Based upon the foregoing, Begnoche voluntarily and knowingly entered the nolo contendere plea and plea counsel was not ineffective. See Stork, 737 A.2d at 790 (stating that "[o]nce a defendant has entered a plea ..., it is presumed that he was aware of what he was doing, and the burden of proving involuntariness is upon him.") (citation omitted).

Begnoche also argues that plea counsel was ineffective for failing to file pre-trial suppression motions. Brief for Appellant at 69-70. However, it is well-settled "that a defendant who pleads nolo contendere waives all defects and defenses except those concerning the jurisdiction of the court, legality of sentence, and validity of plea." Commonwealth v. Kraft, 739 A.2d 1063, 1064 (Pa. Super. 1999). In his plea colloquy, Begnoche explicitly waived his right to have his attorney file pre-trial motions. See Written Plea Colloquy, 12/5/11, at 2 (unnumbered); see also id. (wherein Begnoche acknowledges that as a result of the plea, he can only raise issues involving the voluntariness of his plea, jurisdiction of the court, and legality of the sentence). Thus, we conclude that Begnoche's ineffectiveness claim is without merit, as he knowingly and voluntarily entered the nolo contendereplea and waived all defenses and defects, including the filing of suppression motions.

Begnoche also asserts that his PCRA counsel was ineffective for abandoning him and fraudulently accepting the "allotted renumeration granted by the Commonwealth." Brief for Appellant at 85; see also id. at 86-92.

In effect, Begnoche challenges counsel's withdrawal under the precepts of Turner/Finley. Our Supreme Court has explained the procedure for withdrawal pursuant to Turner/Finley as follows:

1) A "no-merit" letter by PCRA counsel detailing the nature and extent of his review; 2) The "no-merit" letter by PCRA counsel listing each issue the petitioner wished to have reviewed; 3) The PCRA counsel's "explanation," in the "no-merit" letter, of why the petitioner's issues were meritless; 4) The PCRA court conducting its own independent review of the record; and 5) The PCRA court agreeing with counsel that the petition was meritless.

Commonwealth v. Pitts, 981 A.2d 875, 876, n.1 (Pa. 2009) (citation and brackets omitted). Further, our Court held that the Supreme Court in Pitts did not expressly overrule the additional requirement imposed by this Court in Commonwealth v. Friend, 896 A.2d 607, 615 (Pa. Super. 2006), stating

that PCRA counsel seeking to withdraw contemporaneously forward to the petitioner a copy of the application to withdraw that includes (i) a copy of both the "no-merit" letter, and (ii) a statement advising the PCRA petitioner that, in the event the trial court grants the application of counsel to withdraw, the petitioner has the right to proceed pro se, or with the assistance of privately retained counsel.

Commonwealth v. Widgins, 29 A.3d 816, 818 (Pa. Super. 2011).

Based upon our review of the record, PCRA counsel fulfilled the requirements to withdraw pursuant to Turner/Finley and the PCRA court properly allowed him to withdraw. Begnoche has not raised any additional PCRA counsel ineffectiveness claims that would allow him relief. Accordingly, we conclude that Begnoche's claims of PCRA counsel ineffectiveness are without merit.

Begnoche also raises a significant number of additional claims. See Brief for Appellant at 3-67, 75, 80-81, 97, 100-06. Initially, Begnoche has not demonstrated that these various claims are cognizable under the PCRA. See 42 Pa.C.S.A. § 9543(a)(2).⁵ Moreover, as noted above, a defendant, who knowingly and voluntarily pleads nolo contendere, is only entitled to raise claims involving the jurisdiction of the court, legality of sentence and the voluntariness of the plea. See Kraft, 739 A.2d at...