Com. v. Geiger, F.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

FRANKLYN M. GEIGER :

:

Appellant : No. 259 WDA 2019

Appeal from the PCRA Order Entered, January 29, 2019,

in the Court of Common Pleas of Warren County,

Criminal Division at No(s): CP-62-CR-0000149-2016.

BEFORE: PANELLA, P.J., KUNSELMAN, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY KUNSELMAN, J.: FILED MARCH 2, 2020

Franklyn M. Geiger appeals pro se from the order denying his first

petition for relief pursuant to the Post Conviction Relief Act (“PCRA”). 42

Pa.C.S.A. §§ 9541-46. We affirm.

This appeal returns to us following our previous remand. In Geiger’s

prior appeal, we summarized the pertinent facts and procedural history as

follows:

On September 8, 2016, [Geiger] pled guilty at docket

number 149 of 2016 to two counts of possession with intent

to deliver marijuana and/or oxycodone; one count of

criminal use of a communication facility; one count of

corrupt organizations; one count of buying/exchanging

federal food stamps; and one count of cruelty to animals.

As part of the plea agreement, [Geiger] agreed to forfeit his

animals to Paws Along the River Humane Society and to

forfeit various items of personal property to the Warren

County District Attorney’s Office/Warren County Drug Task

Force. In exchange for the foregoing, the Commonwealth

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nolle prossed the remaining charges at docket number 149

of 2016, as well as charges at docket number 150 of 2016.

The Commonwealth also amended the criminal information

to add more specific facts.

On October 28, 2016, the trial court sentenced [Gieger]

to:

 11 to 22 months of incarceration for possession with

intent to deliver at count 1;

 24 to 48 months of incarceration for possession with

intent to deliver at count 5, to be served consecutive

to the sentence at count 1;

 15 to 30 months of incarceration for criminal use of a

communications facility at count 7, to be served

consecutive to the sentence at count 5;

 30 to 60 months of incarceration for corrupt

organizations at count 18, to be served consecutive to

the sentence at count 7;

 11 to 22 months for buying/exchanging food stamps

at count 20, to be served consecutive to the sentence

at count 18;

 1 to 2 months of incarceration for cruelty to animals

at count 25, to be served consecutive to the sentence

at count 20.

In the aggregate, [Geiger’s] sentenced totaled 92 months

to 184 months of incarceration.

[Geiger] timely filed a post-sentence motion, which was

denied on January 5, 2017. On February 2, 2017, [Geiger’s]

counsel filed a motion for extension of time for [Geiger] to

file an appeal along with a motion to withdraw as [Geiger’s]

counsel. That same day, the trial court allowed [Geiger’s]

counsel to withdraw and gave [Geiger] an extra 30 days to

file a notice of appeal. However, no direct appeal was filed.

On June 25, 2017, [Geiger] timely filed pro se a PCRA

petition. [PCRA counsel] was appointed to represent

[Geiger]. Instead of amending the petition, [PCRA counsel]

filed a request to withdraw and a no-merit letter pursuant

to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988),

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and Commonwealth v. Finley 550 A.2d 213 (Pa. Super.

1988) (en banc). On December 5, 2017, the PCRA court

notified [Geiger] pursuant to Pa.R.Crim.P. 907 that it

intended to dismiss the petition because [Geiger’s] claims

presented no genuine issue of material fact and lacked

merit. Although the PCRA court referenced counsel’s motion

to withdraw and no-merit letter in its Rule 907 notice, the

PCRA court did not expressly rule upon the Turner/Finley

motion. On December 27, 2017, [Geiger] filed pro se a

response to the Turner/Finley no-merit letter and the Rule

907 notice. In his answer, [Geiger] included a motion for

leave to amend his PCRA petition. On December 29, 2017,

the trial court dismissed the PCRA petition without ruling on

[Geiger’s] motion or counsel’s Turner/Finley motion to

withdraw.

Commonwealth v. Geiger, 195 A.3d 1047 (Pa. Super. 2018), unpublished

memorandum at 1-5 (citations and footnotes omitted).

Geiger filed a timely appeal to this Court in which he raised five issues.

Before addressing these issues, however, we noted that the record did not

establish that the PCRA court permitted PCRA counsel to withdraw. In

addition, we noted that the PCRA court never expressly ruled on Geiger’s

motion to amend before dismissing his petition. Thus, on August 30, 2018,

this Court vacated the PCRA court’s order of December 29, 2017, dismissing

Geiger’s petition, and remanded so that the PCRA court could rule on counsel’s

petition to withdraw. Geiger, supra. We further stated, “If counsel is allowed

to withdraw, [Geiger] may re-file pro se his motion for leave to amend the

PCRA petition, and the PCRA court shall consider and rule upon such motion

prior to ruling upon the claims in [Geiger’s] original PCRA petition.” Geiger,

unpublished memorandum at 8 (footnote omitted).

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Following remand, the PCRA court entered an order granting PCRA

counsel’s request to withdraw. The order further granted Geiger sixty days to

re-file the pro se motion for leave to amend the PCRA petition. Geiger timely

complied. In the amended petition, Geiger first incorporated all of the issues

from his original petition. In addition, he raised two new claims challenging

the legality of his sentence: 1) his sentences for possession with intent to

deliver should have merged with his sentence for corrupt organizations; and

2) his sentence to a term of incarceration for his cruelty to animals’ conviction

was illegal because it violated the terms of the negotiated plea agreement.

On October 4, 2018, the PCRA court granted Geiger’s motion for leave

to amend his pro se PCRA petition, and the court re-appointed the same PCRA

counsel for the sole purpose of reviewing the two new issues Geiger raised in

his amended petition. On December 6, 2018, PCRA counsel filed an amended

petition in which he raised a challenge to the legality of Geiger’s sentence

based on the merger doctrine. By order entered January 8, 2019, PCRA court

reissued Rule 907 notice of its intention to dismiss all claims raised in both

Geiger’s original and counseled amended petitions.

On January 10, 2019, Geiger filed a “Motion to Dismiss Appointed

Counsel with Permission to Proceed Pro Se and Motion for Leave to Re-Amend

Pro Se Petition.” In these motions, Geiger complained that PCRA counsel

failed to raise an illegal sentencing issue he had raised in his pro se amended

PCRA petition, as well as counsel’s failure to raise a new claim that his

sentence for criminal use of a communications facility was illegal because his

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plea to that charge lacked a factual basis. Geiger therefore sought to proceed

pro se, and sought leave to “re-amend” his PCRA petition to include the third

illegal sentence claim. By order entered January 10, 2019, the PCRA court

denied both motions. On January 16, 2019, PCRA counsel filed a motion to

withdraw and a second Turner/Finley letter, in which he addressed the two

illegal sentence claims Geiger raised in his pro se amended petition. By order

entered that same day, the PCRA court granted PCRA counsel’s motion to

withdraw. By order entered January 29, 2019, the PCRA court dismissed

Geiger’s original and amended PCRA petitions. This appeal followed. Both

Geiger and the PCRA court have complied with Pa.R.A.P. 1925.

Geiger now raises the following issues, which we have reordered for

ease of disposition:

1. Is [Geiger’s] plea to the corrupt organization offense

involuntary or [un]knowing, where [plea counsel] was

ineffective for failing to investigate the facts alleged by

the Commonwealth and thereafter not objecting to the

lack of a factual basis for the corrupt organization

[charge]?

2. Is [Geiger’s] plea to the cruelty to [animals] offense

involuntary, where [plea counsel] was ineffective for

failing to investigate the facts alleged by the

Commonwealth and thereafter not objecting to the lack

of a factual basis for the cruelty to animals [charge]?

3. Was the [PCRA] court correct in denying [Geiger’s]

motion to re-amend the amended PCRA [petition] to

include [Geiger’s] plea to the criminal use of a

communications device because of the blatant lack of a

factual basis for the charge based off the official record

of [the] incident?

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4. Was counsel ineffective for failing to object to the

inaccurate and/or incorrect information contained in the

Pre-Sentence Investigation (PSI) report?

5. [Are Geiger’s] consecutive sentences for the possession

with intent to deliver and corrupt organization illegal

[because the charges] should have merged for

sentencing purposes?

6. Is [Geiger’s] jail term for the cruelty to [animals] offense

illegal and in violation of the plea agreement as advised

by [plea] counsel?

7. Whether the PCRA [Court] erred in dismissing [Geiger’s]

PCRA Petition without holding an evidentiary hearing?

Where [Geiger] demonstrated a prima [facie] case that

his plea was not knowing[,] informed or intelligently

made and was unlawfully induced by trial counsel.

Inaccurate assessment of the offenses and [Geiger’s]

guilt of the offenses[?].

8. Whether the PCRA Court erred in not fully addressing

[Geiger’s issues] as mandated by [the U.S.] Supreme

Court when considering key aspects of the case?

9. Whether [the] PCRA Court erred in permitting PCRA

counsel to withdraw under [the] auspice of [a] no-merit

[letter] to said PCRA filing?

Geiger’s Brief at 7-8.

Our scope and standard of review is well settled:

In PCRA appeals, our scope of review is limited to the

findings of the PCRA court and the evidence on the record of the

PCRA court's hearing, viewed in the light most favorable to the

prevailing party. Because most PCRA appeals involve questions

of fact and law, we employ a mixed standard of review. We defer

to the PCRA court's factual findings and credibility determinations

supported by the record. In contrast, we review the PCRA court's

legal conclusions de novo.

Commonwealth v. Reyes-Rodriguez, 111 A.3d 775, 779 (Pa. Super. 2015)

(citations omitted).

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When the PCRA court has dismissed a petitioner’s PCRA

petition without an evidentiary hearing, we review the PCRA

court’s decision for an abuse of discretion. Commonwealth v.

Roney, 79 A.2d 595, 604 (Pa. 2013). The PCRA court has

discretion to 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, and no legitimate purpose would be served by

further proceedings. Id. To obtain a reversal of a PCRA court’s

decision to dismiss a petition without a hearing, an appellant must

show that he raised a genuine issue of material fact which, if

resolved in his favor, would have entitled him to relief, or that the

court otherwise abused its discretion in denying a hearing.

Commonwealth v. Blakeney, 108 A.3d 739, 750 (Pa. 2014).

Geiger’s first three issues allege the ineffective assistance of plea

counsel for advising him to enter his guilty plea when several of the crimes

charged against him lacked a factual basis. To obtain relief under the PCRA

premised on a claim that counsel was ineffective, a petitioner must establish,

by a preponderance of the evidence, that counsel's ineffectiveness so

undermined the truth-determining process that no reliable adjudication of

guilt or innocence could have taken place. Commonwealth v. Johnson, 966

A.2d 523, 532 (Pa. 2009). “Generally, counsel’s performance is presumed to

be constitutionally adequate, and counsel will only be deemed ineffective upon

a sufficient showing by the petitioner.” Id. This requires the petitioner to

demonstrate that: (1) the underlying claim is of arguable merit; (2) counsel

had no reasonable strategic basis for his or her action or inaction; and (3)

counsel’s act or omission prejudiced the petitioner. Id. at 533.

With regard to claims of ineffectiveness in relation to the entry of plea,

we further note:

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Ineffective assistance of counsel claims arising from the plea

bargaining-process are eligible for PCRA review. Allegations

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 into an involuntary of

unknowing plea. Where the defendant enters his plea on

the advice of counsel, the voluntariness of the plea depends

on whether counsel’s advice was within the range of

competence demanded of attorneys in criminal cases.

The standard for post-sentence withdraw of guilty pleas

dovetails with the arguable merit/prejudice requirements

for relief based on a claim of ineffective assistance of plea

counsel, . . . under which the defendant must show that

counsel’s deficient stewardship resulted in a manifest

injustice, for example, by facilitating the entry of an

unknowing, involuntary, or unintelligent plea. This standard

is equivalent to the “manifest injustice” standard applicable

to all post-sentence motions to withdraw a guilty plea.

Commonwealth v. Kelley, 136 A.3d 1007, 1012-13 (Pa. Super. 2016)

(citations omitted).

With regard to the procedure followed regarding the entry of a guilty

plea, this Court has stated:

Pennsylvania has constructed its guilty plea procedures

in a way designed to guarantee assurance that guilty pleas

are voluntarily and understandingly tendered. The entry of

a guilty plea is a protracted and comprehensive proceeding

wherein the court is obliged to make a specific

determination after extensive colloquy on the record that a

plea is voluntarily and understandingly entered.

Commonwealth v. Yeomans, 24 A.3d 1044, 1046 (Pa. Super. 2011)

(quoting Commonwealth v. Fluharty, 632 A.2d 312, 314 (Pa. Super.

1993)).

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Rule 590(A)(1) of the Pennsylvania Rules of Criminal Procedure requires

that a guilty plea be taken in open court. Regarding plea agreements, Rule

590(B) requires the trial court to “conduct a separate inquiry of the defendant

on the record to determine whether the defendant understands and voluntarily

accepts the terms of the plea agreement on which the guilty plea or plea of

nolo contendere is based.” Pa.R.Crim.P. 590(B)(2). As noted in the Comment

to Rule 590, at a minimum the trial court should ask questions to elicit the

following information:

(1) Does the defendant understand the nature of the

charges to which he or she is pleading guilty?

(2) Is there a factual basis for the plea?

(3) Does the defendant understand that he or she has the

right to trial by jury?

(4) Does the defendant understand that he or she is

presumed innocent until found guilty?

(5) Is the defendant aware of the permissible range of

sentences and/or fines for the offenses charged?

(6) Is the defendant aware that the judge is not bound by

the terms of any plea agreement tendered unless the

judge accepts such agreement?

Pa.R.Crim.P. 590, Comment.

On appeal, this Court evaluates the adequacy of the plea colloquy and

the voluntariness of the resulting plea by looking at the totality of the

circumstances. Yeomans, 24 A.3d at 1047 (citation omitted). “Thus, even

though there is an omission or defect in the guilty plea colloquy, a plea of

guilty will not be deemed invalid if the circumstances surrounding the plea

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disclose that the defendant had a full understanding of the nature and

consequences of his plea and that he knowingly and voluntarily decided to

enter the plea.” Id. Under Pennsylvania law, a reviewing court is free to

consider a wide array of relevant evidence in addition to the transcript of the

actual plea colloquy, under the totality-of-the-circumstances standard, to

determine the validity of a claim and plea agreement, including, but not

limited to transcripts from other proceedings, off-the-record communications

with counsel, and written plea agreements. Commonwealth v. Allen, 732

A.2d 582, 589 (Pa. 1999).

In addition, we note the conclusory effect of a defendant’s statements

during the guilty plea colloquy on subsequent attempts to challenge the

validity of the plea. As this Court has summarized:

Our law presumes that a defendant who enters a guilty plea

was aware of what he was doing. He bears the burden of

proving otherwise.

* * *

The long standing rule of Pennsylvania law is that a

defendant may not challenge his guilty plea by asserting that

he lied while under oath, even if he avers that counsel

induced the lies. A person who elects to plead guilty is bound

by the statements he makes in open court while under oath

and may not later assert grounds for withdrawing the plea

which contradict the statements he made at his plea colloquy.

* * *

[A] defendant who elects to plead guilty has a duty to answer

questions truthfully. We [cannot] permit a defendant to

postpone the final disposition of his case by lying to the court

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and later alleging that his lies were induced by the prompting

of counsel.

Commonwealth v. Pollard, 832 A.2d 517, 523-24 (Pa. Super. 2003)

(citations omitted).

With these standards in mind we address the merits of Geiger’s first

three issues. As noted above, Geiger asserts that his plea counsel was

ineffective for failing to ensure that his oral colloquy included a factual basis

for his guilty plea to three of his charges. The PCRA court found no merit to

any of the claims. We will address each ineffectiveness claim separately.

In his first issue, Geiger claims that his plea to corrupt organizations

was involuntary. In rejecting this claim, the PCRA court first set forth Geiger’s

argument from his original petition. According to the court, Geiger asserted

that his guilty plea to corrupt organizations was involuntary because his trial

counsel:

knew or should have known that the prosecution had no

credible evidence to support a corrupt organization[charge];

counsel was fully aware that [Geiger’s] legitimate business

and real estate holdings were legally established and owned

by him prior to any alleged drug dealing and there was not

credible evidence to substantiate or corroborate that any

proceeds from selling small amounts (less than 30 grams)

of marijuana and prescription pills infiltrated his legitimate

business interests.

Rule 907 Notice, 1/8/19, at 5 (citing Geiger’s PCRA Petition at ¶ 11).

The PCRA court then explained why Geiger’s claim was meritless:

[Geiger’s] argument is based on a misunderstanding of

the law on this issue. 18 Pa.C.S.A. § 911 (b)(1) provides in

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relevant part that “[i]t shall be unlawful for any person who

had received income derived, directly or indirectly from a

pattern of racketeering in which such person participated as

principal, to use or invest . . . any part of such income, or

the proceeds of such income, in the . . . establishment or

operation of, any enterprise.” [Geiger’s] assertion that the

fact that the proceeds from his alleged drug dealing never

infiltrated his legitimate business interests is misplaced. 18

Pa.C.S.A. § 911(h)(3) defines enterprise as “any individual,

partnership, corporation, association or other legal entity,

engaged in commerce and includes legitimate as well as

illegitimate and government entities.” The Corrupt

Organizations statute does not require that [Geiger’s]

proceeds from his drug dealing activity infiltrate his

legitimate business interests, rather, the enterprise that

served as the basis of [Geiger’s] Corrupt Organizations

charge was [Geiger’s] wholly illegitimate business of drug

dealing. This is demonstrated by the facts alleged in the

Amended Criminal Complaint and the identical recitation of

the facts during [Geiger’s] guilty plea on September 8,

2016, where the Court said: “it is alleged that between the

dates of September 30, 2015 and February 14th, 2016, you

did engage in a pattern of purchasing, selling and

distributing controlled substances; and, while operating as

a principal actor did use the income therefrom to purchase

and sell controlled substances in order to operate the illegal

enterprise.”

Rule 907 Notice, 1/8/19, at 5-6 (citations to record omitted). Geiger expressly

admitted his guilt of the corrupt organization charge given the factual basis

provided. See N.T., 9/8/16, at 19-21.

The PCRA court agreed with PCRA counsel’s opinion, as expressed in his

Turner/Finley no-merit letter, that, in making his argument, Geiger likely

relied on our Supreme Court’s decision in Commonwealth v. Besch, 674

A.2d 655 (Pa. 1996), wherein the high court held that not all criminal

enterprises fall under the definition of “enterprise” as defined by the Corrupt

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Organizations Act. See Memorandum Opinion, 1/8/19, at 6. Finally, the PCRA

court acknowledged that “[s]oon after the decision in Besch, the Pennsylvania

Legislature amended the Corrupt Organizations Act to include “legitimate as

well as illegitimate entities.” See Memorandum Opinion, 1/8/19, at 6 (citing

Commonwealth v. Williams, 936 A.2d 12, 18-19 (Pa. 2007).

Our review of the record reveals that a sufficient factual basis was placed

on the record to support Geiger’s corrupt organizations charge. Geiger is

bound by his statement during the colloquy that he accepted the factual basis

for his plea to this crime. Pollard, supra. In arguing to the contrary, Geiger

asserts:

The corrupt organization[s] statute under 18 Pa.C.S.A. §

911, mandates that the Commonwealth prove a defendant

committed two or more crimes as a part of a pattern of

“racketeering activity.” All [Geiger] is charged with is low

level street sales of small amounts of marijuana and 4 pills.

That [does] not rise to the level of racketeering activity

necessary for a corrupt organization[.] [A]t worst he was an

organized criminal not [a] corrupt organization. [Geiger]

was only convicted of [p]ossession with intent to deliver

charges and no other [r]acketeering activity. The only

person arrested and convicted of any offense related to

[Geiger] was his girlfriend Tara Phillips who went and

retrieve[d] a small amount of Marijuana from their bedroom

that’s it. So there was only one type of crime.

Geiger’s Brief at 19.

Geiger raises these claims for the first time on appeal. Therefore, we

cannot consider them. See generally, Pa.R.A.P. 302(a). Notwithstanding

waiver, our review of the record readily established that the Commonwealth

originally charged Geiger with committing five drug transactions. “Pattern of

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racketeering activity” is defined in the criminal statute as referring “to a course

of conduct requiring two or more acts of racketeering activity[.]” 18 Pa.C.S.A.

§ 911(h)(4). Geiger cites no case law to support his belief that this definition

requires two or more different crimes. Thus, Geiger’s first issue fails.1

In his second issue, Geiger asserts that his plea to the cruelty to animals

charge was involuntary because trial counsel was ineffective for failing to

ensure that the Commonwealth provided an adequate factual basis for this

conviction.

When the Commonwealth charged Geiger with the offense, cruelty to

animals was defined as follows:

A person commits an offense if he wantonly or cruelly

ill[-]treats, overloads, beats, otherwise abuses any animal,

or neglects any animal as to which he has a duty of care,

whether belonging to himself or otherwise, or abandons any

animal, or deprives any animal of necessary sustenance,

drink, shelter, or veterinary care, or access to clean and

sanitary shelter which will protect the animal against

inclement weather and preserve the animal’s body heat and

keep it dry.

18 Pa.C.S.A. § 5511(C)(1) (repealed).

____________________________________________

1 In support of this issue, Geiger relies on examples from the standard jury

instructions and claims that once the Commonwealth “amended the criminal

complaint information [sic], and the corrupt organization offense on 8/12/16

[it] no longer contained the factual basis necessary to enforce the offense as

it is written.” Geiger’s Brief at 26. We note that the Commonwealth

established the factual basis for the plea to this charge during the guilty plea

colloquy, as well as the totality of the circumstances surrounding the plea.

Yeomans, supra; Allen, supra.

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The PCRA court found no merit to Geiger’s claim:

At the time of [Geiger’s] plea, the Court recited [the]

facts provided for the Cruelty to Animal charge as written in

the Amended Criminal Information: “it is alleged that you

did wantonly or cruelly neglect a female Chihauhau canine,

four turtles, eleven rats and/or three snakes by depriving

said animals [of] sustenance, shelter or veterinary care.”

[Geiger] subsequently admitted to the charge as it was

written.

***

There is ample evidence that if proven, would support a

conviction of Cruelty to Animals under Pa.C.S.A. §

5511(C)(1), and [Geiger] received a proper colloquy at the

time of his guilty plea. As such, the Court finds that

[Geiger’s] claim that there was ineffective assistance of

counsel for failure to investigate facts that support a

conviction of Cruelty to Animals is meritless.

Rule 907 Notice, 1/8/18, at 7-8.

Our review of Geiger’s plea colloquy supports that PCRA court’s

conclusion that an adequate factual basis was presented to support Geiger’s

conviction for cruelty to animals. In arguing to the contrary, refers to

“exculpatory” pictures that were available to plea counsel that allegedly

demonstrated animals were properly cared for. In addition, he blames the

police officers who searched his home for creating the conditions that led to

the animals’ removal. See Geiger’s Brief at 20.

No such pictures appear in the certified record. The PCRA court

referenced the amended affidavit of probable cause from the May 4, 2016

criminal complaint to describe the condition of Geiger’s property at the time

the police conducted the search on February 4, 2016:

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Your affiant found the 2 snakes in aquariums without water

or heat lights in the basement. . . [t]he four turtles were

viewed in a large black tub with filthy water. They did not

have access to crawl up onto a resting board to get out of

the water. There were 9 rats in a large cage. They were

thin, missing hair and no food was visible other than empty

bags of cereal lying around the basement near the cage.

They were hanging onto the side of the walls of the cage

appearing starved and frantic when we approached. No

food was viewed for any animals in the home. The python

snake was found in the upstairs hallway in an aquarium with

a newspaper over it. No water was in the cage and [a] small

heating unit lying on the paper was not working and no light

was available. The dog was in the bedroom and appeared

thin. There were two other rats in a dirty aquarium also

found in the basement.

Memorandum Opinion, 1/8/18, at 7-8 (citing Amended Affidavit of Probable

Cause). Even if plea counsel was aware of photos that would prove otherwise,

Geiger knew of them too, and still chose to plead guilty and his bound by his

statements. Pollard, supra. Thus, as the record refutes Geiger’s claim, his

second issue fails.2

In his third issue, Geiger not only asserts that his guilty plea to criminal

use of a criminal communications device was involuntary because it lacked a

factual basis, but he also claims that the PCRA court erred in denying him

leave to amend his amended PCRA petition to include this claim after this

Court remanded the case.

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2Within this issue, Geiger raises additional claims, including the validity of the

search warrant and the actual number of animal cruelty charges the

Commonwealth originally filed against him. See Geiger’s Brief at 33. As

Geiger did not raise these claims in his statement of questions involved, they

are waived. Pa.R.A.P. 2116(a).

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The PCRA court first concluded that our remand did not permit Geiger

to add new claims to his amended petition. As the PCRA court explained:

Rule 905(A) gives the PCRA court discretion to “grant

leave to amend or withdraw a petition for [PCRA] relief at

any time,” and states that “[a]mendment shall be freely

allowed to achieve substantial justice.” Pa.R.Crim.P.

905(A). However, a PCRA petitioner is not entitled to raise

new claims following remand for further PCRA proceedings.

See, e.g., Commonwealth v. Daniels, 628 Pa. 193, 104

A.3d 267, 285 (2014) (finding a new PCRA claim raised

post-remand from this Court to have been waived, as [t]his

Court explicitly limited the subject matter of the remand to

the remaining issues already raised by appellees[)];

Commonwealth v. Spotz, 610 Pa. 17, 18 A.3d 244, 238

(2011) (denying the appellant’s request for remand for the

PCRA court to consider issues first raised in a motion for

reconsideration, as this would amount to the PCRA court’s

consideration of a second, untimely PCRA petition);

Commonwealth v. Rainey, 593 Pa. 67, 928 A.2d 215, 226

n.9 (2007) (stating that because this Court expressly

permitted the appellant to raise one new PCRA claim on

remand, raising any additional issues post-remand was

improper).

A PCRA court does not have discretion to treat new claims

raised by a PCRA petitioner as an amended PCRA petition

following remand from an appellate court, unless such

amendment is expressly authorized in the remand order.

Commonwealth v. Sepulveda, 144 A.3d 270 (Pa. 2016).

Here the Superior Court only authorized [Geiger] to re-file

his original pro se amended petition. [Geiger] was not

specifically authorized to file further motions to amend his

petition.

It was this court’s interpretation of the Superior Court’s

remand direction that this court was only to consider the

merits of the original PCRA petition and, if granted, the

matters set forth in [Geiger’s] “re-filed” pro se Motion as set

forth above. As indicated, [Geiger] re-filed the Motion to

Amend and the court permitted the amended motion to be

filed and appointed counsel to represent [Geiger] regarding

the amended petition. The court considered those matters

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and filed a Notice of Intent to Dismiss the PCRA petition.

Subsequently, [Geiger] filed a Motion for Leave to Re-

Amend. [Geiger’s] proposed new “Amended PCRA Petition”,

an addition to re-asserting the [two issues raised in his re-

filed petition], sets forth the following: “[Geiger’s]

sentence of fifteen (15) months to thirty (30) months

for criminal use of a communications facility is illegal

because there is no factual basis to support that it

was even committed.” This court determined that the two

(2) matters appropriate for consideration for remand were

considered by the Court and the new matter asserted was

improper in light of the remand order. As such, the court

denied the motion.

Pa.R.A.P. 1925(a) Opinion, 1/29/19, at unnumbered 3-4.

Our review of the record supports the PCRA court’s conclusion that our

remand did not permit Geiger to re-amend his PCRA petition, and the PCRA

court denied his request to do so. Thus, Geiger’s third issue is waived.

Notwithstanding waiver, the PCRA addressed Geiger’s claim and found

it lacked merit:

[Geiger] given a full on the record colloquy, pled guilty to

Court 7 of the Information, Criminal Use of a

Communications Facility. At the time of the plea, the

elements of that offense were fully explained to [Geiger].

The factual basis for the offense was “[Geiger] did use a

cellular telephone to facilitate the selling of a controlled

substance to a confidential informant in October, 2015.”

Clearly that recitation of the facts establishes a factual

[basis] for the offense. [Geiger] appears to be challenging

the sufficiency of the evidence for this charge. It is clear

however, that the entry of a guilty plea constitutes waiver

of all defenses and defects except claims of lack of

jurisdiction, invalid guilty plea, and illegal sentence. The

issue of sufficiency of the evidence has been waived and is

not subject to review on PCRA petition. The plea was the

result of an open plea negotiation process that resulted in

numerous charges being nolle prossed in exchange for a

guilty plea to the remaining counts.

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Pa.R.A.P. 1925(a) Opinion, 1/29/19, at unnumbered 4 (citations omitted).

Once again, our review of the record supports the PCRA court’s

conclusions. At the guilty plea colloquy, Geiger admitted the factual basis for

this crime based upon an October 2015 drug transaction; his statement binds

him. See Pollard, supra. In arguing to the contrary, Geiger refers to a

police incident report generated in 2016 regarding a 2016 drug transaction.

See Geiger’s Brief at 49. Thus, because a review of the plea colloquy refutes

Geiger’s claim, trial counsel cannot be found ineffective and Geiger’s third

issue fails.

In his fourth issue, Geiger claims that trial counsel was ineffective for

failing to object to allegedly inaccurate or incorrect information contained in

his pre-sentence investigation (“PSI”).

The PCRA court found no merit to this claim:

[Geiger’s] argument that the Court relied on inaccurate

information in the PSI report that led to the Court imposing

an excessive and disproportionate sentence is meritless.

Before sentencing, the Court asked counsel if he ha[d]

reviewed the PSI report with [Geiger] and asked if any

corrections or additions should be made to the report.

Counsel replied “no” and [Geiger] never requested to amend

the report. The lone inaccuracy in [Geiger’s] PSI report

seems to be an incorrectly reported juvenile offense listed

under factor “04” of [Geiger’s] Risks/Needs Assessment,

where [Geiger] received a consent decree on June 26, 1986

for Theft by Unlawful Taking as opposed to an adjudication

of guilt. The Court did not rely on that inaccuracy in any

way for sentencing purposes. [Geiger’s] argument that the

Risk/Needs Assessment was inaccurate in determining that

[Geiger] rationalizes his behavior, is negative, and is not

motivated to change is contradicted by [Geiger’s] thirty year

long history of criminal convictions.

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Rule 907 Notice, 1/8/18, at 8-9.

In addition, the PCRA court noted that at the time of sentencing, the

court provided reasons for its sentencing choice:

This is your third possession with intent to deliver. It

includes simple assault, indecent assaults. You have had

supervision revoked in the county before. Your businesses

are a front for your unlawful activities. There is an indication

that you are sorry. [Plea counsel] indicated that you are

sorry. I looked at the risk and needs assessment that was

performed, and that indicates that you rationalize your

behavior and have no motivation to change your criminal

conduct. And, clearly, that’s been the case for 30 years. All

of this indicates that you are an extremely poor candidate

that will lead you to returning to the community to be a law

abiding, productive citizen.

Id. at 9 (citation omitted).

Our review of the record supports the PCRA court’s conclusion that it did

not rely on inaccurate information from the PSI report. Geiger takes issue

with the trial court’s crediting statements in the PSI report that he “rationalizes

his behavior, [is] negative, [and] not motivated to change[,]” because he was

never interviewed “and/or given a psychological interview by anyone.” See

Geiger’s Brief at 35. In addition, Geiger contends that the trial court’s reliance

upon incorrect information is supported by the trial court’s acknowledgement

that his 1986 juvenile offense should not have been considered as part of his

criminal history. Id.

We disagree, as our review of the record supports the court’s conclusion

that the above comments by the court at sentencing demonstrates the court’s

belief that past attempts to rehabilitate Geiger have failed. See, e.g.,

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Commonwealth v. Gibson, 716 A.2d 1275, 1279 (Pa. Super. 1998) (holding

that sentence outside guidelines was justified because, inter alia, the appellant

disregarded earlier opportunity to reform). The fact that he only had a quarter

century history of committing crime rather than thirty years is not a basis to

disturb the sentencing court’s determination. Thus, Geiger’s fourth claim of

ineffectiveness fails.

In his fifth issue, Geiger claims that his consecutive sentences for

corrupt organizations and possession with intent to deliver were illegal

because the crimes should have merged for sentencing purposes. This Court

reviews the issue of whether crimes should have merged for sentencing

purposes de novo and the scope of review is plenary. Commonwealth v.

Martinez, 153 A.3d 1025, 1030 (Pa. Super. 2016).

The PCRA court found no merit to this claim:

The Superior Court addressed this issue squarely in

Commonwealth v. Besch, [614 A.2d 1155, 1158 (Pa.

Super. 1992), reversed on other grounds, 674 A.2d 655 (Pa.

1996), where the Appellant claimed receiving separate,

consecutive sentences for Corrupt Organizations and the

predicate drug offenses, constituted a double jeopardy

violation. [] In Besch, the Superior Court explains the

purpose of the double jeopardy provision is to prevent the

Court and prosecutor from imposing multiple punishments

for a single crime. Id. (citing Commonwealth v. Bostic,

456 A.2d 1320, 1323 (Pa. 1983)). The Court held that

charges of Corrupt Organizations and its predicate offense

of engaging in drug activity were two separate crimes. Id.

Appellant was sentenced on drug charges for engaging in

activity violating the Controlled Substance, Drug and

Cosmetic Act, which is distinguished from Appellant’s

Corrupt Organizations charges for engaging in racketeering

activity, which can include drug and non-drug offenses. Id.

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The Superior Court additionally noted the legislature’s

determination that the Corrupt Organizations statute was

enacted to provide new remedies while allowing defendants

immunity for the predicate acts conducted within their

corrupt organizations. Id. at 1159.

Here, [Geiger] claims his charges for Possession with

Intent to Deliver and Corrupt Organizations, should be

merged and punished as a single crime. As stated in Besch,

[Geiger’s] predicate drug offense does not constitute the

same crime as Corrupt Organizations nor was that the

purpose of the legislature. While asserted as a Double

Jeopardy violation in Besch, clearly the Court’s logic would

include a merger claim. Therefore, this Court is bound by

said decision and must deny [Geiger’s] request for merger

on the charges as it [is] without merit in accordance with

Superior Court precedent.

Rule 907 Notice, 1/8/19, at 9-10.

Our review of the record supports the PCRA court’s conclusion that

Geiger’s fifth issue is meritless. This Court’s double jeopardy/merger

discussion in Besch remains good law. The fact that sentencing merger is

now governed by statute does not alter this conclusion. Section 9765 of the

Judicial Code reads as follows:

§ 9765. Merger of sentences

No crimes shall merge for sentencing purposes unless the

crimes arise from a single criminal act and all of the

statutory elements of one offense are included in the

statutory elements of the other offense. Where crimes

merge for sentencing purposes, the court may sentence the

defendant only on the higher graded offense.

42 Pa.C.S.A. § 9765. In support of this claim, Geiger largely focuses on the

statutory elements of each crime, yet ignores the requirement that the

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charges arise from the same criminal act.3 When a criminal defendant

commits multiple distinct acts, concepts of merger for sentencing purposes

are inapplicable. Commonwealth v. Pettersen, 49 A.3d 903, 911-12 (Pa.

Super. 2012). Here, Geiger’s drug dealing must be considered a separate act

from his act of using these illegally gained proceeds to form a pattern of

racketeering activity necessary for the corrupt organizations charge. Thus,

Geiger’s claim fails.

In his sixth issue, Geiger claims that his jail sentence for cruelty to

animals’ conviction is illegal because it violates the terms of his negotiated

plea agreement. The PCRA court found no merit to this claim:

It should be noted that [Geiger] entered an “open” plea

with no agreement with respect to sentencing. At the time

of his plea, [Geiger] was asked, “has anyone made any

promises to you regarding the sentence the Court will

impose if you plead guilty to these charges?” [Geiger]

replied, “No.” Next, the Court asked [Geiger], “Do you

understand that I am not bound by any formal sentence

agreement unless I accept it on the record?” [Geiger]

replied, “Yes.” Finally, the trial court fully advised [Geiger]

as to the maximum penalties the court could impose,

including ninety (90) days [of] incarceration and [Geiger]

acknowledged the possible penalties. The record negates

[Gieger’s] assertion.

Rule 907 Notice, 1/8/18, at 10.

____________________________________________

3 Within his argument on this issue, Geiger further asserts that plea counsel

promised him concurrent sentences as to these two sentence and therefore

claim his guilty plea was induced by counsel’s ineffectiveness. See Geiger’s

Brief at 44. Because Geiger did not raise this claim in his statement of issues,

we will not consider it further. See Pa.R.A.P. 2116(a), supra.

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We concur with the PCRA court’s conclusion that Geiger’s responses

during the plea colloquy refutes his claim of an illegal sentence for this charge.

Pollard, supra. Although Geiger now relies on certain language in an email

exchange between plea counsel and the Commonwealth, the fact remains that

no such sentence was presented to the court to accept as part of Geiger’s

negotiated guilty plea. Thus, Geiger’s sixth issue fails.

Within his brief, Geiger notes that his remaining three issues “have been

consolidated for the purposes of argument and expedience.” Geiger’s Brief at

52 n.1. In his seventh issue, Geiger claims that the PCRA court erred in

denying his PCRA petition without first holding a hearing. In his eighth issue,

Geiger essentially claims that the PCRA court did not fully address the above

issues. Finally, in his ninth issue Geiger contends that the PCRA court erred

in permitting PCRA counsel to withdraw based upon his no-merit letter.

Initially, we note that the Pennsylvania Rules of Appellate Procedure do

not permit such consolidation. See Pa.R.A.P. 2119(a). In addition, Geiger

inappropriately raises his eighth and ninth issue for the first time on appeal.

See generally, Pa.R.A.P. 302(a), supra. However, notwithstanding these

procedural violations, given our foregoing discussion and rejection of Geiger’s

previous issues, we summarily conclude: 1) the PCRA court did not err in

dismissing Geiger’s PCRA petition without first holding a hearing; 2) the PCRA

court addressed his issues fully; and 3) no error occurred in allowing PCRA

counsel to withdraw.

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In sum, because all of Geiger’s claims are without merit, we affirm the

PCRA court’s order denying him post-conviction relief.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/2/2020

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