Com. v. Brooking, M. ( 2018 )

J-S26045-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MARCUS D. BROOKING :
:
Appellant : No. 3172 EDA 2017
Appeal from the PCRA Order August 24, 2017
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0012983-2013
BEFORE: BENDER, P.J.E., BOWES, J., and STEVENS*, P.J.E.
DISSENTING MEMORANDUM BY STEVENS, P.J.E.: FILED AUGUST 03, 2018
While present in open court on another case, and with full knowledge of
a looming Rule 907 dismissal date in Appellant’s PCRA matter, present counsel
accepted an appointment as replacement counsel to represent Appellant in
filing a response to both prior counsel’s Turner/Finley letter and the court’s
notice of dismissal. Counsel never filed a response, however, but only a
motion for continuance, which the PCRA court denied.
The learned majority reasons that replacement PCRA counsel was
entitled to a continuance because it was his first request and he filed it prior
to the announced dismissal date. The majority cites no case law that a first
request for a continuance is automatic. Indeed, such a policy completely
eviscerates the discretion of the trial judge, who is familiar with the facts and
circumstances of the individual case.
____________________________________
* Former Justice specially assigned to the Superior Court.
J-S26045-18
I respectfully disagree with the majority, as our standard of review
requires a greater showing from counsel that there was an abuse of discretion
by the lower court before we may upset its denial of a motion to continue:
“The grant or denial of a motion for a continuance is within the
sound discretion of the trial court and will be reversed only upon
a showing of an abuse of discretion.” Commonwealth v.
Boxley, 596 Pa. 620, 948 A.2d 742, 746 (2008) (citing
Commonwealth v. Randolph, 582 Pa. 576, 873 A.2d 1277,
1281 (2005)). “An abuse of discretion is not merely an error of
judgment; rather discretion is abused when the law is overridden
or misapplied, or the judgment exercised is manifestly
unreasonable, or the result of partiality, prejudice, bias, or ill will,
as shown by the evidence or the record[.]” Id. (internal quotation
marks omitted). Moreover, “[a] bald allegation of an insufficient
amount of time to prepare will not provide a basis for reversal of
the denial of a continuance motion.” Commonwealth v. Ross,
57 A.3d 85, 91 (Pa.Super. 2012) (citing Commonwealth v. Ah
Thank Lee, 389 Pa.Super. 201, 566 A.2d 1205, 1206 (1989)).
“An appellant must be able to show specifically in what manner he
was unable to prepare for his defense or how he would have
prepared differently had he been given more time. We will not
reverse a denial of a motion for continuance in the absence of
prejudice.” Id. (quoting Commonwealth v. Brown, 351
Pa.Super. 119, 505 A.2d 295, 298 (1986)).
Commonwealth v. Antidormi, 84 A.3d 736, 745–46 (Pa.Super. 2014). In
effect, the majority is usurping the role of the PCRA judge and enabling
counsel's failure to act in a timely manner.
Counsel claims the PCRA court gave him inadequate time to prepare a
response to Attorney Baraldi’s no-merit letter and the court’s Rule 907 Notice.
He fails, however, to plead and prove with any specificity that there was a
reasonable probability a continuance would have enabled him to present a
case of ineffective assistance of prior counsel occurring at earlier stages of
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Appellant’s case. Instead, he relies on mere supposition to conclude that a
meritorious case of ineffectiveness simply depended on the allowance of more
time to prepare.
Given this Court’s prior determination that Appellant’s guilty plea was
constitutionally sound, more is needed from counsel than a statement devoid
of any explanation of what was necessary to avoid Rule 907 dismissal. Indeed,
counsel fails to demonstrate why he needed more time than the seven weeks
the court gave him after he chose to accept the appointment on July 13, 2017,
in open court, knowing there was a pending Rule 907 notice and an ultimate
dismissal date of August 24.
The record in the present matter is not particularly large, nor is there
any indication the matter involves complexities atypical of a guilty plea to
third-degree murder, followed by a direct appeal. Ultimately, Appellant’s
underlying claim states that guilty plea counsel should be brought to an
evidentiary hearing and asked about the advice he gave to Appellant on the
day of his plea. Seven weeks is ample time for PCRA counsel to have prepared
an argument in support of such a claim and submitted it for the PCRA court’s
consideration.
Counsel is presumed to have known the state of his caseload and
whether he was in a position to accept appointment to the present case, which
was already at a critical stage. Yet, counsel inexplicably allowed one month
to pass before asking the court for a continuance, knowing less than two
weeks remained before the Rule 907 dismissal date.
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Under such facts, and without any specific explanation from counsel as
to why more time was necessary to prepare an argument against dismissal, I
find no error with the court’s decision to deny counsel’s motion to continue.
Accordingly, I would affirm.
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