Com. v. Brown, L. ( 2020 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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. :
:
LEWIS BROWN, : No. 596 EDA 2018
:
Appellant :
Appeal from the Judgment of Sentence, October 25, 2012,
in the Court of Common Pleas of Philadelphia County
Criminal Division at No. CP-51-CR-0003952-2012
BEFORE: LAZARUS, J., McLAUGHLIN, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED DECEMBER 1, 2020
Lewis Brown appeals nunc pro tunc from the October 25, 2012
judgment of sentence entered by the Court of Common Pleas of Philadelphia
County following his conviction of aggravated assault and simple assault.1
After careful review, we affirm.
The following procedural history can be gleaned from the certified
record: The Commonwealth charged appellant with, inter alia, aggravated
assault and simple assault as the result of an incident that took place on
February 15, 2012, at the Curran Fromhold Correctional Facility in
Philadelphia. On October 25, 2012, appellant pleaded guilty to the
aforementioned offenses. After accepting appellant’s guilty plea, the trial
1 18 Pa.C.S.A. §§ 2702(a)(3) and 2701(a), respectively.
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court sentenced appellant to a term of 2-4 years’ imprisonment, to be followed
by one year of probation. Appellant did not file any post-sentence motions,
nor did he file a direct appeal.
On December 20, 2012, appellant filed a pro se petition pursuant to the
Post-Conviction Relief Act (“PCRA”).2 On November 5, 2013, the PCRA court
appointed David Rudenstein, Esq., to represent appellant.
Attorney Rudenstein filed a no-merit letter pursuant to Commonwealth v.
Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d
213 (Pa.Super. 1988) (en banc), on January 25, 2017, along with an
accompanying motion to withdraw as counsel.
The PCRA court filed a notice of intent to dismiss appellant’s PCRA
petition without a hearing pursuant to Pa.R.Crim.P. 907 on April 6, 2017. On
June 19, 2017, upon learning that trial counsel failed to file a direct appeal
despite being requested to do so, Attorney Rudenstein filed an amended PCRA
petition on appellant’s behalf. On January 22, 2018, the PCRA court reinstated
appellant’s direct appellate rights nunc pro tunc. Appellant filed a timely
notice of appeal on February 21, 2018. The trial court ordered appellant to
file a concise statement of errors complained of on appeal pursuant to
Pa.R.A.P. 1925(b) and appellant timely complied. The trial court subsequently
filed an opinion pursuant to Pa.R.A.P. 1925(a).
Appellant raises the following issue for our review:
2 42 Pa.C.S.A. §§ 9541-9546.
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Should [appellant] be entitled to withdraw his plea
and go to trial or, in the alternative, have his case
remanded to the trial/PCRA court for a full evidentiary
hearing, where his guilty plea was not rendered in a
knowing, intelligent and voluntary fashion and where
his trial attorney failed to file a requested appeal?
Appellant’s brief at 3 (extraneous capitalization omitted).
In his brief, appellant raises the issue of whether his guilty plea was
knowing, intelligent, and voluntary; however, he does so by way of a claim of
ineffective assistance of counsel. (See appellant’s brief at 6-10.) Put another
way, appellant avers that his guilty plea was involuntary due to ineffective
assistance on the part of his trial counsel.
As a general rule, ineffective assistance of counsel claims can only be
raised on collateral review. Commonwealth v. Holmes, 79 A.3d 562, 576
(Pa. 2013). Even in cases where nunc pro tunc relief is granted, this court
has stated that ineffective assistance of counsel claims may be raised by filing
another PCRA petition following the disposition of the nunc pro tunc direct
appeal. Commonwealth v. Fransen, 986 A.2d 154, 158 (Pa.Super. 2009),
citing Commonwealth v. Liston, 977 A.2d 1089, 1094 (Pa. 2009).
Our supreme court identified three exceptions to the general rule
prohibiting the consideration of ineffective assistance of counsel claims on
direct appeal. As summarized by our supreme court, the first two exceptions
to the general rule are as follows:
The first exception [] affords trial courts discretion to
entertain ineffectiveness claims in extraordinary
circumstances where a discrete claim of trial counsel
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ineffectiveness is apparent from the record and
meritorious to the extent that immediate
consideration best serves the interest of justice.
[Holmes, 79 A.3d at 563.] The second exception []
gives trial courts discretion to address ineffectiveness
claims on post-sentence motions and direct appeal if
there is good cause shown and the defendant
knowingly and expressly waives his entitlement to
seek subsequent PCRA review of his conviction and
sentence. Id. at 564.
Commonwealth v. Delgros, 183 A.3d 352, 360 (Pa. 2018). In Delgros,
our supreme court recognized a third exception, holding that a defendant may
raise an ineffective assistance of counsel claim in cases where he or she would
be statutorily precluded from raising an ineffectiveness claim on collateral
review. Id. at 361. The Delgros court, however, limited its holding to cases
in which the defendant has raised ineffective assistance of counsel claims in
post-sentence motions. Id. at 362-363; see also Commonwealth v.
Whitehead, 2020 WL 119661 at *2 (Pa.Super. filed January 10, 2020)
(unpublished memorandum).
The instant case is distinguishable from Delgros. In Delgros, our
supreme court was considering a case where the defendant was convicted of
receiving stolen property and was sentenced to pay a fine and restitution.
Delgros, 183 A.3d at 354. The defendant filed post-sentence motions
alleging ineffective assistance of counsel. Id. Based on the plain language of
the PCRA, the defendant would never be eligible for relief under the PCRA
because he would never serve a sentence of imprisonment, probation, or
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parole as a result of his conviction of receiving stolen property. See
42 Pa.C.S.A. § 9543(a)(1)(i).
Here, appellant was sentenced to 2-4 years’ imprisonment on
October 25, 2012. On December 20, 2012, appellant filed a timely PCRA
petition. The PCRA court took no final action on appellant’s petition until
January 22, 2018, when it reinstated appellant’s direct appellate rights
nunc pro tunc. While appellant’s PCRA petition was pending before the PCRA
court, his October 25, 2012 sentence expired, thereby statutorily precluding
appellant from collateral relief.3 Therefore, based on the unique procedural
posture of this case, we shall review appellant’s ineffective assistance of
counsel claim on its merits.
On appeal, appellant contends that his guilty plea was not voluntary
because his trial counsel “did not adequately consult with him” or provide
discovery. (Appellant’s brief at 6.)
3 We recognize that appellant was not eligible for PCRA relief at the time the
PCRA court granted appellant’s petition to reinstate his direct appellate rights
nunc pro tunc. See 42 Pa.C.S.A. § 9543(a)(1)(i); Commonwealth v.
Rivera, 802 A.2d 629, 633 (Pa.Super. 2002) (holding that a petition to
reinstate direct appellate rights nunc pro tunc must be raised within a
PCRA petition). This court has noted that the eligibility requirements under
the PCRA do not raise a jurisdictional question. Commonwealth v. Fields,
197 A.3d 1217, 1223 (Pa.Super. 2018) (en banc) (plurality), appeal denied,
206 A.3d 1025 (Pa. 2019); see also Commonwealth v. Kirwan, 221 A.3d
196, 199 n.9 (Pa.Super. 2019). Because appellant’s eligibility for relief, or
lack thereof, does not implicate the jurisdiction of this court, and because the
PCRA court’s order granting appellant’s petition to reinstate his direct
appellate rights nunc pro tunc is not before us, we shall proceed to review
appellant’s issue on its merits.
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We presume counsel is effective. Commonwealth v.
Cox, [] 983 A.2d 666, 678 ([Pa.] 2009). To overcome
this presumption, “a [defendant] must show
underlying claim has arguable merit, counsel’s actions
lacked any reasonable basis, and counsel’s actions
prejudiced the [defendant].” Commonwealth v.
Escobar, 70 A.3d 838, 841 (Pa.Super. 2013) (citing
Commonwealth v. Cox, [] 983 A.2d 666, 678 ([Pa.]
2009).) “Prejudice means that, absent counsel’s
conduct, there is a reasonable probability the outcome
of the proceedings would have been different.” Id. A
claim will be denied if the [defendant] fails to meet
any one of these prongs. See [Commonwealth v.]
Jarosz, 152 A.3d [344,] 350 [(Pa.Super. 2016)]
(citing Commonwealth v. Daniels, [] 963 A.2d 409,
419 ([Pa.] 2009)).
“[A] criminal defendant’s right to effective counsel
extends to the plea process, as well as during trial.”
[Commonwealth v.] Wah, 42 A.3d [335,] 338
[(Pa.Super. 2012)] (citations omitted). ...
“[A]llegations 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.”
[Commonwealth v.] Fears, 86 A.3d [795,] 806-807
[(Pa. 2014)] (citation omitted). “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.” Wah,
42 A.3d at 338-3[3]9 (citations omitted).
“[T]o 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.”
Commonwealth v. Barndt, 74 A.3d 185, 192
(Pa.Super. 2013) (citations and internal quotation
marks omitted). This is not a stringent requirement.
Id. The reasonable probability test refers to “a
probability sufficient to undermine confidence in the
outcome.” Id. (citations omitted).
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Commonwealth v. Velazquez, 216 A.3d 1146, 1149-1150 (Pa.Super.
2019). Further, a defendant must satisfy all three prongs of the test for
ineffective assistance of counsel as set forth in Velazquez and Escobar. “A
failure to satisfy any prong of the test for ineffectiveness will require rejection
of the claim.” Commonwealth v. Gribble, 863 A.2d 455, 460 (Pa. 2004);
see also Commonwealth v. Morrison, 878 A.2d 102, 104-105 (Pa.Super.
2005) (en banc), appeal denied, 887 A.2d 1241 (Pa. 2005).
In his brief, appellant, through his counsel, admits the following:
The undersigned well recognizes that [appellant] did
participate in an on-the-record guilty plea colloquy,
with [a] written guilty plea colloquy provided to the
judge. If the colloquy is looked at upon its face,
[appellant’s] claims would seem to not be meritorious.
However, [appellant] has still claimed that trial
counsel was ineffective and that he was
pressured/coerced into taking the open plea.
Appellant’s brief at 6 (extraneous capitalization and citation omitted).
At no point, however, does appellant aver that but for his plea counsel’s
errors and alleged ineffectiveness, he would not have pleaded guilty and would
instead have insisted on going to trial. See Barndt, 74 A.3d at 192.
Accordingly, appellant has not satisfied the prejudice prong of the test set
forth in Velazquez, and his claim must be rejected. See Gribble, 863 A.2d
at 460.
Judgment of sentence affirmed.
Lazarus, J. and McLaughlin, J concur in the result.
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Judgment Entered.
JosephD.Seletyn,Esq.
Prothonotary
Date: 12/01/2020
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