Com. v. Brown, L. ( 2020 )


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  • J. S06035/20
    NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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.
    J. S06035/20
    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).
    -6-
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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.
    -7-
    J. S06035/20
    Judgment Entered.
    JosephD.Seletyn,Esq.
    Prothonotary
    Date: 12/01/2020
    -8-
    

Document Info

Docket Number: 596 EDA 2018

Filed Date: 12/1/2020

Precedential Status: Non-Precedential

Modified Date: 12/13/2024