J-S72018-17

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* Former Justice specially assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

JAMES EARL KINSLEY,

Appellant

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 1607 EDA 2017

Appeal from the PCRA Order April 18, 2017

in the Court of Common Pleas of Delaware County,

Criminal Division at No(s): CP-23-CR-0000053-2014

BEFORE: BENDER, P.J.E., MUSMANNO, J., and STEVENS*, P.J.E.

MEMORANDUM BY MUSMANNO, J.: FILED JANUARY 18, 2018

James Earl Kinsley (“Kinsley”) appeals from the Order dismissing his 

first Petition filed pursuant to the Post Conviction Relief Act (“PCRA”).1 We 

affirm. 

In its Opinion, the PCRA court set forth its findings of fact, which we 

adopt for the purpose of this appeal. See PCRA Court Opinion, 4/18/17, at 

1-5. 

Kinsley did not file a direct appeal. On June 12, 2015, Kinsley, pro se,

filed the instant, timely PCRA Petition. The PCRA court appointed counsel, 

who filed an amended Petition, asserting therein that (1) Kinsley’s sentence 

was illegal, as his convictions for criminal attempt-involuntary deviate sexual 

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1 See 42 Pa.C.S.A. §§ 9541-9546. 

 
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intercourse (“IDSI”) (person less than 16 years of age) and criminal 

solicitation-IDSI (forcible compulsion) should have merged; and (2) Kinsley’s 

trial counsel was ineffective for failing to detect the error. On March 21, 

2017, the PCRA court conducted a hearing on the Petition. On April 18, 

2017, the PCRA court issued its Order dismissing the Petition. This timely 

appeal followed.

On appeal, Kinsley raises the following issue for our review: “Whether 

the PCRA [c]ourt erred in [dismissing Kinsley’s] PCRA [P]etition where the 

record clearly showed that [Kinsley’s] sentences for the convictions for 

[c]riminal [a]ttempt-IDSI [(p]erson [l]ess than 16 [y]ears of [a]ge[)], 18 

Pa.C.S.[A.] § 901(a)[,] and [c]riminal [s]olicitation-I[DS]I [(f]orcible 

[c]ompulsion[)], 18 Pa.C.S.[A.] § 902(a)[,] are illegal sentences because 

these offenses merge?” Brief for Appellant at 4.

We review an order dismissing a petition under the PCRA 

in the light most favorable to the prevailing party at the PCRA 

level. This review is limited to the findings of the PCRA court 

and the evidence of record. We will not disturb a PCRA court’s 

ruling if it is supported by evidence of record and is free of legal 

error. This Court may affirm a PCRA court’s decision on any 

grounds if the record supports it. Further, we grant great 

deference to the factual findings of the PCRA court and will not 

disturb those findings unless they have no support in the record. 

However, we afford no such deference to its legal conclusions. 

Where the petitioner raises questions of law, our standard of 

review is de novo and our scope of review plenary. 

Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (citations

omitted).
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Kinsley contends that he received two sentences for the same criminal 

act, in violation of 18 Pa.C.S.A. § 906.2 Brief for Appellant at 11. Kinsley 

asserts that he “understood that he was entering a plea to only one victim.” 

Id. Kinsley claims that “the [PCRA] court erred in determining that there 

were two different criminal episodes[,] where there is nothing in the guilty 

plea hearing to support that finding.” Id. 

In its Opinion, the PCRA court addressed Kinsley’s issue, set forth the 

relevant law, and determined that the convictions were not subject to 

merger under section 906 because Kinsley knowingly and intelligently plead 

guilty to criminal attempt-IDSI (person less than 16 years of age) in relation 

to one victim, and plead guilty to criminal solicitation-IDSI (forcible 

compulsion) in relation to a different victim. See PCRA Court Opinion, 

4/18/17, at 5-10; see also id. at 10 (wherein the PCRA court determined 

that “[t]he record is clear that [Kinsley] was fully appraised by his 

attorney[,] and knew that there were two separate episodes, two separate 

informations/two cases[,] and that [Kinsley] had negotiated one 

resolution.”). We agree with the reasoning of the PCRA court, which is 

supported by the record and free of legal error, and affirm on this basis. 

See id.; see also PCRA Court Opinion, 6/2/17, at 3 (wherein the PCRA 

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2 Section 906 provides that “[a] person may not be convicted of more than 

one of the inchoate crimes of criminal attempt, criminal solicitation or 

criminal conspiracy for conduct designed to commit or to culminate in the 

commission of the same crime.” 18 Pa.C.S.A. § 906.
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court explained that Kinsley’s “inchoate crimes were not designed to commit 

or to culminate in the same crime[, because] they were separate crimes of 

sexual abuse of children, as they involved separate dates and different 

perceived victims.”).

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/18/18
Circulated 12/19/2017 03:32 PM

IN THE COURT OF COMMON PLEAS OF DELAWARE COUNTY, PENNSYLVANIA 

CRIMINAL DIVISION 

COMMONWEALTH OF PENNSYLVANIA CP-23-CR-0000053-2014 

v. 

JAMES EARL KINSLEY 

ORDER 

AND NOW, this 18th day of April, 2017, after consideration of Defendant's 

PCRA PETITION and AMENDED PCRA PETITION; COMMONWEALTH'S ANSWER IN 

OPPOSITION TO DEFENDANT'S AMENDED POST-CONVICTION RELIEF ACT 

PETITION/MOTION TO DISMISS and a hearing held thereon in open court on 

March 21, 2017, it is hereby ORDERED and DECREED that the Court finds that 

Defendant has failed to show ineffective assistance of counsel and Defendant's 

PCRA Petition is DISMISSED. 

Findings of fact: 

1. Defendant was arrested on November 16, 2013 and charged with the 

following offenses: IDSI - Person Less the 16 -Criminal Attempt, Statutory Sexual 

Assault-Criminal Attempt, Corruption of Minors-Criminal Attempt, IDSI Person 

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Less then 16-Criminal Solicitation, Statutory Sexual Assault-Criminal Solicitation 

and related offenses. 

2. Defendant retained the services of Michael Malloy, Esquire and appeared in 

the Court of Common Pleas for a Pre-Trial Conference on March 5, 2014. 

3. Defendant's trial date was set for March 31, 2014. Defendant and his 

attorney, Brian Malloy, Esquire appeared and requested a continuance as the 

case was still under discussion/negotiations with the District Attorneys' Office. 

Similar requests were made on May 5 and May 19. 

4. On June 10, 2014 the Commonwealth, represented by Ryan Grace, Esquire, 

moved in open court to amend the Informations adding another count of all 

offenses charged and further stated that he was going to make an offer to 

Defendant. The Defense had no objection to the amendment. (See N.T. July 22, 

2014 page 3, wherein Commonwealth summarizes what occurred on June 10.} 

5. The ORDER GRANTING MOTION FOR LEAVE TO AMEND INFORMATION was 

signed on June 11, 2014. The Defense continued the case to June 16. On June 16 

an offer was extended to Defendant and the Defense requested that the case be 

passed to June 19. On June 19, the Defense requested a continuance until July 

14. On July 14, the Defense requested a continuance to July 22, 2014. 

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6. At this point, it is clear that Defendant was fully aware that the 

Commonwealth had two separate cases, two distinct incidents, and that the two 

cases were now combined into one case for disposition. 

7. On July 22, 2014 the Commonwealth and Defense again appeared before 

the court. The Commonwealth, through Mr. Grace, explained that the offer had 

been extended in June; the parties had engaged in additional back and forth 

negotiations in an effort to resolve the matter without trial; and that he had been 

notified the Defendant was rejecting the offer. (N.T. July 22, 2014, p. 2.) 

8. Commonwealth placed the Offer on the record. Mr. Grace first outlined 

the offer to Count I -Attempted IDSL Then Mr. Grace stated the following: "And 

then the Commonwealth would ask the defendant plead guilty to Count 12. 

That's one of the new counts." (N.T. July 22, 2014, page 4). The Commonwealth 

outlined the offer then stated the following: "l should note for your Honor there 

are two different undercover sting operations. The allegation is the defendant 

was talking to two different undercover officers at the same time. So these are 

not the same episodes. They are two different episodes of attempt, and on the 

other hand by the Solicitation. So the Commonwealth would be seeking for 

consecutive sentence at trial." (N.T. July 22, 2014, page 5). 

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9. On July 24, 2014, defendant appeared before the court to enter into a 

negotiated guilty plea. It is noted that the defendant improved his sentence by 

negotiating from a 3-6 year term of incarceration to a _2 Yi - 7 year term of 

incarceration on the Attempt IDSI; however, the 4 year consecutive probation 

remained the same for the Solicitation to IDSI. During the course of the guilty 

plea colloquy, the following exchange took place: 

THE COURT: Then, I will ask the Commonwealth Attorney 

to provide a factual basis for the plea. 

MR. GRACE: Your Honor, the Commonwealth submits both 

the Affidavit of Probable Cause that was filed initially in the 

criminal complaint as well as a supplemental Affidavit of 

Probable Cause that was handed up to Your Honor, I believe 

on Tuesday, Monday or Tuesday of this week. 

THE COURT: Correct. Do you agree to that? 

MR. MALLOY: Yes, Your Honor. 

THE COURT: Are you offering your Guilty Plea in this case because 

you admit that you did the things that are stated in the Affidavit 

of Probable Cause - 

THE DEFENDANT: Yes. 

THE COURT: -- both of them? Has your attorney explained the 

meaning and the elements of the crimes you are pleading guilty 

to, which is Attempt IDSI and Solicitation IDSI? 

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THE DEFENDANT: Yes. 

(N.T. July 24, 2014, pages 7 and 8). 

As part of the plea colloquy, the defendant was asked to sign the Criminal 

Informations to evidence the guilty plea, which he did. They are clearly two 

different sets of Informations. The Informations are part of the record. 

Sentencing was scheduled for October 16, 2014 and a PSI and a Psvchosexual 

Evaluation were ordered. 

10. The Psychosexual Evaluation was held on August 11, 2014 wherein the 

defendant told the Evaluator, Dr. Catherine Surbeck, PhD., the following: "There 

were 2 cases. In September, they said 15. In October, they said 14. They used a 

different name. Jake was supposed to be 15. I don't remember the name of the 

14 year old.

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11. On October 16, 2014, defendant was sentenced in accordance with the 

negotiated guilty plea. 

Discussion 

The record in this case supports the conclusion that the Defendant's guilty 

pleas were knowingly and voluntarily entered and that the Defendant failed to 

establish that his plea Counsel's stewardship was ineffective in any manner. To 

succeed on an ineffective assistance of counsel claim, a Defendant must satisfy 

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the three-pronged "Pierce test"; that is, a defendant must plead and prove: (1} 

the underlying claim has merit, (2} counsel's performance had no reasonable 

basis, and {3} counsel's ineffectiveness prejudiced the defendant. Commonwealth 

v. Lassiter, 554 Pa. 586, 592, 772 A.2d 657, 660 (1998} (citing Commonwealth v. 

Lacava, 542 Pa. 160,178, 666 A.2d 221, 229 {1995)). A defendant must then prove 

that counsel's ineffectiveness "so undermined the truth-determining process that 

no reliable adjudication of guilt or innocence could have taken place. " Lassiter, 

554 Pa. at 592, 772 A.2d at 660. "Prejudice in the context of ineffective assistance 

of counsel means demonstrating that there is a reasonable probability that, but 

for counsel's error, the outcome of the proceeding would have been different." 

Commonwealth v. Cox, 603 Pa. 223, 243, 983 A.2d 666, 678 (2009} {quoting 

Pierce, supra at 213; citing Strickland v. Washington, 466 U.S. 668, 694 {1984)). 

Counsel is presumed effective and Defendant bears the burden of proving 

otherwise. Commonwealth v. Ligons, 971 A.2d 1125, 1137 {Pa. 2009}. In order to 

overcome that presumption, defendant must demonstrate that (1) his underlying 

claim has merit, (2) there was no reasonable basis for Counsel's actions, and (3) 

defendant suffered prejudice as a result. Commonwealth v. Miller, 746 A.2d 592, 

598 (Pa. 2000). The failure to satisfy any prong of this test will cause the entire 

claim to fail. Commonwealth v. Bridges, 584 Pa. 1127, 886 A.2d 1127 (2005). 

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Once a defendant has entered a plea of guilty, it is presumed that he was 

aware of what he was doing, and the burden of proving involuntariness is upon 

him. Commonwealth v. Owens, 321 Pa. Super. 122, 467 A.2d 1159 (1983); 

Commonwealth v. Brown, 242 Pa. Super. 240, 363 A.2d 1249 (1976). A plea of 

guilty constitutes a waiver of all defects and defenses. Upon entry of a guilty plea, 

all challenges to the plea are waived except challenges to voluntariness, 

jurisdiction of the court, and the lawfulness of the sentence. Commonwealth v. 

Bauer, 413 Pa. Super. 220, 604 A.2d 1098 (1992); Commonwealth v. Coles, 365 

Pa-. Super. 562, 530 A.2d 453 {1987), appeal denied, 522 Pa. 572, 559 A.2d 34 

(1989). If an underlying claim was waived by the guilty plea, a derivative claim of 

ineffective assistance of counsel must necessarily fail. Commonwealth v. Bauer, 

413 Pa. Super. 220, 604 A.2d 1098 {1992}; Commonwealth v. Davis, 518 Pa. 77, 

83, 541 A.2d 315 (1988). A Defendant who pleads guilty may seek post conviction 

relief where the plea was unlawfully induced and the defendant is "innocent." 

Commonwealth v. Woodrow, 743 A. 2d 458 (Pa. Super. 1999) To withdraw the 

guilty plea on the grounds that the plea was unlawfully induced, the defendant 

must prove that the "plea was the result of manifest injustice. 

11 Commonwealth v. 

Holbrook, 629 A.2d 154,158 {Pa.Super. 1993}. 

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In order to prevail on a PCRA claim that a guilty plea was unlawfully 

induced, the Defendant is required to plead and prove by a preponderance of the 

evidence that his guilty plea was unlawfully induced where circumstances made it 

likely that the inducement caused him to plead guilty, or that the ineffective 

assistance of counsel caused an involuntary or unknowing plea. Commonwealth v. 

Rathfon, 899 A. 2d 365 {Pa. Super. 2006); Commonwealth v. Mendoza, 730 A. 2d 

503 (Pa. Super. 1999); Commonwealth v. Patterson, 690 A. 2d 250 (Pa. Super. 

1997). To meet this standard, the Defendant must establish that the plea was 

"involuntary or given without knowledge of the charge." See e.g., Commonwealth 

v. Blackwell, 647 A. 2d 915 (Pa. Super.1994). 

To determine whether a plea was knowing and voluntary, the reviewing 

court examines the guilty plea colloquy to ascertain defendant's understanding 

of: (1) the nature of the charges; (2) the factual basis for the plea; (3) the right to 

a jury trial; (4) the presumption of innocence; (5) the permissible range of 

sentences; and (6) the court's power to depart from any recommended sentence. 

Commonwealth v. Morrison, 878 A.2d 102, 107 (Pa. Super. 2005). 

The adequacy of a guilty plea colloquy and the voluntariness of the 

resulting plea must be examined under the totality of the circumstances 

surrounding the entry of the plea. Commonwealth v. Muhammad, 794 A.2d 378 

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(Pa.Super. 2002} at 383 384. Thus, "[t]he trial court may consider a wide array of 

relevant evidence under this standard including, but not limited to, transcripts 

from other proceedings, off the record communications with counsel, and written 

plea agreements." Commonwealth v. Fears, 836 A.2d 52, 64 (Pa. 2003); 

Commonwealth v. Bedell, 954 A.2d 1209, 1212 1213 (Pa.Super. 2008). 

In this case, the Defendant understood and responded affirmatively to each 

and every material inquiry posed from the Court and Counsel during the colloquy; 

The Court found Defendant's plea to be knowingly, intelligent and voluntary. The 

Defendant indicated that he understood all of the rights he was waiving, and that 

he clearly wished to enter the plea. There is nothing in the record to indicate that 

the plea was not voluntary. 

Based upon this record, Defendant could not possibly show that his plea 

was unknowing or involuntary. See Commonwealth v. McCauley, 797 A.2d 920, 

922 (Pa. Super. 2001) ("where ... a guilty plea colloquy was conducted, during 

which it became evident that the defendant understood the nature of the charges 

against him, the voluntariness of the plea is established"); Commonwealth v. 

Smith, 450 A.2d 973, 974 (Pa. 1982) (a written colloquy is prima facie evidence 

that defendant was aware of his rights); Commonwealth v. Pollard, 832 A.2d517, 

523 (Pa. Super. 2003) ("[a defendant] may not later assert grounds for 

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withdrawing the plea which contradict the statements he made at his plea 

colloquy"): Commonwealth v. Sauter, 567 A.2d 707, 708-09 (Pa. Super. 1989). 

(Where a written plea colloquy is supplemented by an oral colloquy, it "suggests 

most strongly" that the guilty plea was made knowingly, voluntarily and 

intelligently). 

The record is clear that defendant was fully apprised by his attorney and 

knew that there were two separate episodes/two separate Informations/two 

cases and that he had negotiated to one resolution. The defendant entered into 

the negotiated guilty plea knowingly, voluntarily and intelligently and no relief 

shall be granted. 

BY THE COURT: 

C?/6

Mary Alic

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