J-S08019-18

*Former Justice specially assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

DAMIEN D. MILCHAK,

Appellant No. 826 WDA 2017

Appeal from the PCRA Order, May 9, 2017,

in the Court of Common Pleas of Washington County,

Criminal Division at No(s): CP-63-CR-0001392-2012

BEFORE: LAZARUS, J., KUNSELMAN, J., and STEVENS, P.J.E.*

MEMORANDUM BY KUNSELMAN, J. FILED MARCH 9, 2018

Appellant, Damien D. Milchak, appeals from the order denying his first 

timely petition for relief filed pursuant to the Post Conviction Relief Act. 42 

Pa.C.S.A. §§ 9541-46. We affirm. 

Appellant’s convictions arise from acts he perpetrated on his then tenyear-old stepson.

1

 The PCRA court summarized the pertinent procedural 

history as follows:

On June 5, 2012, [Appellant] was charged with the 

following crimes: Rape of a Child; Involuntary Deviate 

Sexual Intercourse (2 counts), Sexual Intercourse with 

Animals, Endangering the Welfare of a Child and 

Corruption of Minors. [Appellant] initially had a series of 

____________________________________________

1 Appellant was also charged with having intercourse with the family cat.
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court-appointed attorneys. On March 18, 2013, [plea 

counsel] entered her appearance to represent [Appellant].

On May 17, 2013, [Appellant] pled nolo contendere to 

three charges – Endangering the Welfare of a Child (F3), 

Indecent Assault and (M2) (amended charge) and 

Corruption of the Morals of a Minor and received an 

aggregate sentence of 11 1⁄2 to 23 months of incarceration 

followed by five years of probation. [Appellant] was also 

required to report under Megan’s Law for a period of 15 

years. The remaining charges were nolle prossed. 

[Appellant] completed a written colloquy and the Court 

conducted an oral colloquy. [Appellant] was released from 

jail three days later, on May 20, 2013, and placed on 

probation. On June 17, 2013, [Appellant], acting pro se, 

filed a Notice of Appeal of his sentence to the Pennsylvania 

Superior Court. [Plea counsel] sought leave to withdraw 

her appearance, which was granted, and [Appellant] was 

appointed appellate counsel by this Court. [Appellant], 

through his counsel, later withdrew his appeal to Superior 

Court on January 22, 2015.

On November 5, 2015, [Appellant] filed a pro se PCRA 

petition. PCRA counsel was appointed and he filed an 

Amended PCRA on July 22, 2016. In the Amended PCRA, 

[Appellant] asserted that [plea counsel] was ineffective in 

her representation of him by failing to provide him all of 

the discovery that she had, thus making his plea 

unknowing and involuntary. The relief requested was a 

withdrawal of the plea and placement of the case on the 

trial list.

***

The Court granted [Appellant] a hearing on his PCRA. 

Four witnesses testified: [Appellant’s previous counsel], 

[plea counsel, Rosella Milchak, [Appellant’s] mother, and 

[Appellant].

PCRA Court Opinion, 7/31/17, at 1-3. 

At the conclusion of the evidentiary hearing, the PCRA court took the 

matter under advisement. By order entered May 9, 2017, the PCRA court 
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denied Appellant’s petition. This timely appeal follows. Both Appellant and 

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

Appellant raises the following issue:

I. Whether the PCRA court erred in denying 

[Appellant’s] amended PCRA petition where the 

evidence of record revealed that he received 

ineffective assistance of counsel in connection with 

the entry of his nolo contendere plea?

Appellant’s Brief at 4 (excess capitalization removed).

The Superior Court’s standard of review of the denial of a PCRA 

petition is limited to examining whether the court’s rulings are supported by 

the evidence of record and free of legal error. Commonwealth v. Volk, 

138 A.3d 659, 661 (Pa. Super. 2016).

Appellant’s claim alleges that plea counsel’s alleged ineffectiveness for 

advising him to enter a nolo contendere plea. 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 
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inaction; and (3) petitioner was prejudiced by counsel's act or omission. Id. 

at 533. A finding of "prejudice" requires the petitioner to show "that there is 

a reasonable probability that, but for counsel’s unprofessional errors, the 

result of the proceeding would have been different." Id. In assessing a 

claim of ineffectiveness, when it is clear that appellant has failed to meet the 

prejudice prong, the court may dispose of the claim on that basis alone, 

without a determination of whether the first two prongs have been met. 

Commonwealth v. Travaglia, 661 A.2d 352, 357 (Pa. 1995). Counsel 

cannot be deemed ineffective for failing to pursue a meritless claim. 

Commonwealth v. Loner, 836 A.2d 125, 132 (Pa. Super. 2003) (en banc), 

appeal denied, 852 A.2d 311 (Pa. 2004).

This Court has recently reiterated the following with regard to claims 

of claim of ineffectiveness involving regard to counsel’s performance during 

the plea process:

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 
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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).

In support of his claim, Appellant argues that plea counsel failed to 

share or review all relevant discovery with him. Rather, plea counsel 

provided Appellant with his entire file after she no longer represented him. 

“Therein he discovered various documents – Unseen Discovery - that he did 

not know existed. According to Appellant, “[had plea counsel] reviewed 

those documents with him prior to entering his plea, [he] would have 

rejected the nolo contendere plea offer and instead taken the case to trial.” 

Appellant’s Brief at 13.

Nowhere within his brief does Appellant specifically identify the 

documents and their contents, although he identified them in his PCRA 

petition and admitted them as exhibits at the evidentiary hearing. These 

documents included interview notes with the minor victim, a letter from the 

hospital stating that, after it examination if the victim it could not determine 

whether a sexual assault occurred, two mental health treatment plans for 

the minor victim, and a veterinary report that no evidence of trauma to the 

cat. 
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The PCRA court summarized the testimony from this hearing as 

follows:

At the hearing [plea counsel] testified that she no 

longer had [Appellant’s] file, that she turned over all of the 

information to him at his request after the plea and 

sentence and after he appealed. Within the file that she 

released to [Appellant] were the five documents that 

[Appellant] claims were not shared or discussed. Although 

[plea counsel] specifically recall[ed] four out of the five 

documents, she clearly had all of them in her file. [Plea 

counsel] could not recall exactly how many times she met 

with [Appellant]. She clearly met with [Appellant] right 

after she was retained in March 2013, and again May 14, 

2013 at the jail and on May 15, 2013, in Court, and again 

on May 17, 2013, at the plea and sentencing hearing. 

[Plea counsel] is an experienced criminal defense attorney, 

having practiced since 1978. She stated that she did not 

provide copies to [Appellant], consistent with her usual 

practice when the client is incarcerated and the 

information is of a sensitive nature, but that she discussed 

all of the discovery with him. [Appellant] testified that 

[plea counsel] visited him at jail and had a thick discovery 

packet with her but that she only discussed [Pa.R.Crim.P.] 

600. [Appellant] also said they didn’t discuss anything. 

That defies logic. [Plea counsel] went to the jail to discuss 

[Appellant’s] case. According to [plea counsel], she went 

over the content of the documents and discussed defenses 

to the charges with [Appellant]. The credibility of the 

victim is a clear defense to crimes of this nature. The 

discovery points to the troubled nature and mental health 

issues of the victim.

PCRA Court Opinion, 7/31/17, at 4-5 (citations omitted). 

In addition, the PCRA court specifically “accepted [plea counsel’s] 

testimony as credible that she discussed the defenses with [Appellant,]” and 

“based on the testimony of plea counsel and all of the circumstances, that 

the discovery was shared and discussed with [Appellant].” Id. at 5-6.
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Our review of the record supports the PCRA court’s conclusions. The 

PCRA court credited the testimony of counsel over the testimony and other 

allegations made by Appellant at the PCRA hearing. We cannot disturb this 

determination. See Commonwealth v. Battle, 883 A.2d 641, 648 (Pa. 

Super. 2005) (explaining that credibility determinations are solely within the 

province of the PCRA court). Although Appellant cites to certain testimony 

by plea counsel and statements by the PCRA court to support his claim that 

the PCRA court’s credibility determinations are not supported by the record, 

our review of the record as a whole establishes otherwise.

Appellant also claims the fact that he entered a nolo contendere plea 

rather than a guilty plea should somehow affect our review of plea counsel’s 

effectiveness. We disagree. As this Court has summarized:

[A]though a nolo contendere plea has the same effect as a 

guilty plea for sentencing and is considered a conviction, it 

is not an admission of guilt. Unlike a guilty plea, a nolo 

contendere plea does not involve the acknowledgement as 

to having committed any illegal act. Rather, the nolo 

contendere plea admits that the allegations, if proven, 

meet elements of the offense or offenses charged. Hence, 

in pleading no contest, [the defendant] did not admit to 

having committed the acts alleged.

Commonwealth v. Moser, 999 A.2d 602, 606 (Pa. Super. 2010) (citations 

omitted). The trial court explained this fact to Appellant during its oral 

colloquy with him, and Appellant stated that he understood. N.T. 5/17/13, 

at 12-13. All of the statements he made during the plea hearing are binding 
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upon Appellant. See generally, Commonwealth v. Pollard, 832 A.2d 517 

(Pa. Super. 2003).

Finally, the PCRA court found that Appellant did not prove that he was 

prejudiced. The court explained:

Much has been made of Exhibit D, the veterinarian’s 

report that the cat had no evidence of trauma on June 

19, 2012. While [Appellant] had been charged with 

Sexual Intercourse with an Animal, he did NOT plead 

nolo contendere to that charge and that letter and its 

implications would not have [had an] impact on a 

decision to the three charges for which he was 

sentenced. Further, the other four documents that 

were allegedly not shared are reports by CYS about [the 

victim] after the charges were made. Again, it is 

unrefuted that [plea counsel] spoke to [Appellant] 

generally about the quality of the Commonwealth’s 

evidence against him. The victim is [Appellant’s] stepson and it was known to everyone that [the victim] was 

under the care of CYS and that he had been in a 

residential treatment program (Mars Home for Youth) 

for months before being placed with his father. The 

believability of the victim was going to be a key issue at 

trial and [Appellant] was aware of the issues that could 

impeach [the victim’s] credibility. That issue was the 

reason the Commonwealth offered to dismiss the very 

serious charges. The sentence offered allowed 

[Appellant] to be released from jail almost immediately, 

within days. [Appellant’s] comments and questions [at 

the plea and sentencing hearing] concerned his release 

date. His trial was set for [July] 8, 2013. [Appellant’s] 

focus was on his release and not preparing for trial.

PCRA Court Opinion, 7/31/17, at 6. Once again, our review of the record 

supports the PCRA court’s conclusions. See also, Moser, 999 A.2d at 604

(explaining that, due to evidentiary issues and mental health issues with the 
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Commonwealth’s witnesses, it believed a nolo contendere plea was 

appropriate.)

In sum, for all of the above reasons the PCRA court correctly 

concluded that Appellant failed to establish plea counsel’s ineffectiveness. 

We therefore affirm its order denying post-conviction relief.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/9/2018