J-S17014-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT

OF

PENNSYLVANIA

Appellee

v.

MICHAEL THOMPSON,

Appellant No. 3322 EDA 2018

Appeal from the PCRA Order Entered March 13, 2018

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0013617-2012

BEFORE: BENDER, P.J.E., OLSON, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY BENDER, P.J.E.: FILED JUNE 05, 2019

Appellant, Michael Thompson, appeals from the post-conviction court’s 

March 13, 2018 order denying his petition under the Post Conviction Relief Act 

(PCRA), 42 Pa.C.S. §§ 9541-9546. After careful review, we affirm. 

The PCRA court summarized the pertinent facts and procedural history 

of this case, as follows:

By way of background, [Appellant] was charged with, inter 

alia, Unlawful Contact with a Minor - Sexual Offenses, 

Dissemination of Photo/Film of Child Sex Acts, and Indecent 

Assault - [Without] Consent of Other. These charges were lodged 

against [Appellant] as a result of an incident that occurred on 

August 7, 2012, during which [Appellant] gave a beer to his 

sixteen year-old cousin and then commented about her body, 

after which he then placed his fingers inside her panties, about 

one inch from her vagina, without her consent[,] at his home after 

giving her a ride from school. While inside [Appellant’s] home, 

the victim observed photographs of young women who were

possibly under the age of eighteen on [Appellant’s] computer. The 

victim reported the incident and what she observed to 
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authorities[,] who obtained a search warrant for [Appellant’s]

computer. The search of the computer uncovered several 

photographs of children under the age of eighteen depicted in a 

sexualized manner and engaging in sex acts. (N.T.[,] 10/21/13, 

[at] 13-14).

[Appellant] appeared before this [c]ourt on October 21, 

2013, and immediately prior to the commencement of jury 

selection[, he] entered a negotiated plea of nolo contendere to the 

above[-] listed charges. In exchange for his plea[,] the 

Commonwealth agreed to recommend that a sentence of seven 

and one-half to fifteen years’ incarceration be imposed on 

[Appellant]. ([Id. at] 7). The Commonwealth advised [Appellant]

that it would not be seeking a Megan’s Law assessment as to 

whether he was [a] sexually violent predator because [Appellant]

was subject to lifetime registration due to a prior conviction. ([Id.

at] 5, 12).

After [Appellant] completed a colloquy form with the 

assistance of counsel and this [c]ourt conducted a colloquy of 

[Appellant], this [c]ourt accepted [Appellant’s] nolo [contendere]

plea and imposed the recommended sentence. On October 29, 

2013, [Appellant] filed a motion to withdraw his nolo [contendere]

plea. Said motion was heard and denied on March 25, 2014. 

[Appellant] did not file an appeal after his motion was denied.

On April 25, 2014, [Appellant] filed a petition under the ... 

PCRA[], seeking an order permitting him to file a notice of appeal 

nunc pro tunc. Said petition was granted on July 21, 2014, 

following which [Appellant] filed a timely notice of appeal and a 

Pa.R.A.P. 1925(b) Statement of Matters.

On May 4, 2015, the Superior Court affirmed the judgment 

of sentence. ([Commonwealth v. Thompson, No.] 2077 EDA 

2014[, unpublished memorandum (Pa. Super. filed May 4, 

2015)]). [Appellant] did not file a petition seeking allowance of 

appeal. On June 2, 2016, [Appellant] filed a pro se PCRA petition. 

***

Counsel was appointed to represent him and on February 4, 

2017, counsel filed an amended petition. In it, counsel raised a 

single issue alleging that plea counsel was ineffective for 

permitting [Appellant] to enter a plea unknowingly, 
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unintelligently, and [in]voluntarily because [Appellant] stated that 

he did not agree with the facts proffered by the Commonwealth.

After the Commonwealth filed a response and this [c]ourt 

carefully reviewed the entire record, this [c]ourt determined that 

[Appellant’s] claims [raised in both his pro se and counseled 

petitions] lacked merit and that an evidentiary hearing was 

unnecessary. Consequently, this [c]ourt sent [Appellant] a 

Pa.R.Crim.P. 907 Notice of Intent to Dismiss on December 13, 

2017, and on January 16, 2018, this [c]ourt issued an order 

dismissing the petition.

On January 16, 2018, [Appellant] filed a Notice of Appeal to 

the Superior Court. However, due to an error in the 907 Notice, 

[Appellant] withdrew the appeal so that this [c]ourt could send

[Appellant] an amended 907 Notice. On February 13, 2018, this 

[c]ourt rescinded its order of January 16, 2018, dismissing 

[Appellant’s] PCRA petition and sent [Appellant] a corrected 907 

Notice. On March 6, 2018, [Appellant] filed a pro se response to 

the 907 notice wherein he raised [additional issues.]

***

On March 13, 2018, this [c]ourt, having again reviewed the 

entire record, issued an order denying [Appellant] PCRA relief. 

[Appellant] thereafter filed a timely notice of appeal.

PCRA Court Opinion (PCO), 3/28/18, at 1-5.1

On appeal, Appellant presents one question for our review:

1. Did the PCRA court err in dismissing Appellant’s PCRA [p]etition 

without a hearing because plea counsel [was] ineffective for 

allowing Appellant to enter a plea when the factual recitation 

was not accepted and Appellant should be allowed to withdraw 

his plea because it was not knowing, intelligent, and voluntary?

Appellant’s Brief at 4.

____________________________________________

1 The court did not order Appellant to file a Pa.R.A.P. 1925(b) concise 

statement of errors complained of on appeal. However, the court filed a Rule 

1925(a) opinion on March 28, 2018, addressing the claims raised in 

Appellant’s pro se petition, counsel’s amended petition, and Appellant’s pro se 

response to the court’s Rule 907 notice.
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We begin by recognizing:

Our standard of review of a trial court order granting or 

denying relief under the PCRA calls upon us to determine whether 

the determination of the PCRA court is supported by the evidence 

of record and 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.

Pennsylvania has recast the two-factor inquiry regarding the 

effectiveness of counsel set forth by the United States Supreme 

Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 

2052, 80 L.Ed.2d 674 (1984), as the following three-factor 

inquiry:

In order to obtain relief based on [an ineffective assistance

of counsel] claim, a petitioner must establish: (1) the 

underlying claim has arguable merit; (2) no reasonable 

basis existed for counsel’s actions or failure to act; and (3) 

petitioner suffered prejudice as a result of counsel’s error 

such that there is a reasonable probability that the result of 

the proceeding would have been different absent such error.

Trial counsel is presumed to be effective, and Appellant bears the 

burden of pleading and proving each of the three factors by a 

preponderance of the evidence.

The right to the constitutionally effective assistance of counsel

extends to counsel’s role in guiding his client with regard to the 

consequences of entering into a guilty plea.

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 an involuntary 

or 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.

Thus, to establish prejudice, the defendant must show that there 

is a reasonable probability that, but for counsel’s errors, he would 

not have pleaded guilty and would have insisted on going to trial. 

The reasonable probability test is not a stringent one; it merely 

refers to a probability sufficient to undermine confidence in the 

outcome.
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Commonwealth v. Lippert, 85 A.3d 1095, 1100 (Pa. Super. 2014) (quoting 

Commonwealth v. Barndt, 74 A.3d 185, 191–92 (Pa. Super. 2013))

(cleaned up).

In this case, aside from setting forth the law that governs our review of 

his ineffectiveness claim, see Appellant’s Brief at 8-11, Appellant’s entire 

argument regarding how his plea counsel acted ineffectively in this case is as 

follows:

Presently, Appellant did not accept the factual recitation. NT, 

10/21/2013, at 14-15. Instead of seeking to end the process and 

proceed to trial, plea counsel immediately transformed the 

process into a no contest plea without any consultation with 

Appellant. [Id.] at 16. There were clearly factual issues that 

Appellant contested. [Id.] at 15. The PCRA court baldly states 

that there was no manifest injustice. [PCO] at 16-18.[2] However, 

the facts were not accepted by Appellant and the transition to a 

no contest plea was immediate without any on the Record 

explanation from plea counsel. Plea counsel was ineffective for 

effectively forcing a plea upon Appellant. Therefore, Appellant 

respectfully requests remand for a new trial.

____________________________________________

2 We point out that Appellant cites to a portion of the PCRA court’s opinion 

wherein it addressed specific claims that he does not raise on appeal, i.e., 

that the court “committed an abuse of discretion by denying him 

the right to withdraw his plea based on his failure to meet the 

manifest injustice standard because: 1.) he was not told the 

crimes he was pleading guilty to; 2.) he was never told as part of 

his sentence that he would have to register as a sexual offender 

every three months for the remainder of his life; 3.) [Appellant] 

did not commit the crimes he pleaded guilty to as set forth in the 

information; and 4.) [Appellant] was advised that he freely could 

withdraw his plea within ten days of the date he entered his plea 

and was sentenced.

PCO at 16.
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Appellant’s Brief at 12.

Appellant’s scant argument fails to convince us that his plea counsel 

acted ineffectively. At the plea proceeding, the Commonwealth stated the 

facts and the court asked if Appellant agreed with them, to which Appellant 

replied, “No, I don’t agree with them.” N.T. Plea/Sentencing, 10/21/13, at 

14. The following exchange then occurred:

THE COURT: Do you want to talk to your attorney?

[Appellant]: I’m agreeing to this, but I am not agreeing to that.

THE COURT: Well, we’re not saying you agree to everything the 

Commonwealth said, but in substance do you agree with that?

[Appellant]: I’m just telling you. I don’t agree with that. I agree 

to this, but I don’t agree to that.

THE COURT: [Counsel], do you want to talk to your client?

[Defense Counsel]: Yes, sir.

(Pause.)

***

[Defense Counsel]: Your Honor, is there any way that we can have 

some kind --

THE COURT: Well, he can plead nolo [contendere]. You can make 

his plea nolo [contendere], that you don’t contest the facts.

[The Commonwealth]: Then [Appellant] doesn’t have to agree 

with the facts. He’s just found guilty of the facts.

THE COURT: All right. We’re going to change this. So what I’ve 

discussed with you before, a nolo contender[e] plea is a no 

contest, basically saying I’m not agreeing with -- or I have no 

position. I’m not pleading guilty. I’m not contesting the facts, 

but I’m not pleading guilty. Do you understand what I’m saying?

[Appellant]: Yes.
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THE COURT: Okay. And everything I told you about a trial, about 

picking a jury, about no witnesses and about giving up all your 

pretrial motions, all of that applies to a no contest plea the same 

way the colloquy, the questions I just asked you regarding a guilty 

plea. Do you understand that?

[Appellant]: Yes.

THE COURT: So agreement of counsel, this will be classified as a 

no contest plea?

[The Commonwealth]: That’s fine.

N.T. Plea/Sentencing, 10/21/13, at 14-17.

Preliminarily, this record belies Appellant’s claim that counsel did not 

consult with him about changing from a guilty plea to a nolo contendere plea. 

Rather, the proceedings were paused (albeit for an unspecified amount of 

time) while counsel and Appellant had a discussion, presumably about that 

decision. Additionally, the court explained the nolo contendere plea to 

Appellant, and Appellant indicated that he understood. Nothing in the record 

indicates that counsel forced Appellant to enter the plea, as Appellant 

contends on appeal.

We also agree with the PCRA court that there is no arguable merit to 

Appellant’s claim that his plea is invalid because he refused to accept the 

Commonwealth’s factual recitation. As the PCRA court correctly observes, 

Appellant “did not have to agree to the facts to enter a valid [nolo contendere] 

plea.” PCO at 7. Indeed, this Court has explained that, 

although a nolo contendere plea has the same effect as a guilty 

plea for purposes of sentencing and is considered a conviction, it 

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

plea does not involve an acknowledgment as to having committed 

an illegal act. Rather, the nolo contendere plea admits that the 
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allegations, if proven, meet the elements of the offense or 

offenses charged. Hence, in pleading no contest, [a defendant 

does] not admit to having committed the acts alleged. 

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

up). 

Therefore, Appellant’s unwillingness to admit to the facts acts alleged 

by the Commonwealth demonstrates that a nolo contendere plea was 

appropriate. Accordingly, Appellant’s underlying claim that his nolo 

contendere plea was invalid lacks arguable merit, and we also see nothing 

unreasonable about his attorney’s decision to permit him to enter that plea.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/5/19