Com. v. Brumley, K. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
KELI MARIE BRUMLEY :
:
Appellant : No. 849 WDA 2020
Appeal from the PCRA Order Entered July 14, 2020
In the Court of Common Pleas of Fayette County
Criminal Division at No(s): CP-26-CR-0000832-2017
BEFORE: SHOGAN, J., DUBOW, J., and KING, J.
MEMORANDUM BY KING, J.: FILED: APRIL 30, 2021
Appellant, Keli Marie Brumley, appeals from the order entered in the
Fayette County Court of Common Pleas, which denied her first petition filed
under the Post Conviction Relief Act (“PCRA”).1 We affirm.
The PCRA court set forth the relevant facts of this case as follows:
On the evening of February 26, 2017, Trisa Stickles sent a
text to Appellant requesting to purchase Xanax from
Appellant. After receiving the text, Appellant told the others
in her car that she was going to rob Stickles of her money.
A meeting was set up and Appellant parked near the
scheduled location for the meeting. In the car with
Appellant was her boyfriend, Shawn Vaugh; his younger
brother, Arsuan Patterson; and Arsuan’s girlfriend, Autumn
Saluga. Stickles drove her boyfriend, Mapstone, to the
location and parked her car in the parking lot of a housing
project in Uniontown. Appellant texted Stickles that she was
counting the pills and to give Arsuan [Patterson] the money
for the drugs. Appellant directed Arsuan [Patterson] to go
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1 42 Pa.C.S.A. §§ 9541-9546.
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make the transaction. Arsuan [Patterson] went to the
vehicle, sold Mapstone some “lean” but he did not have the
requested Xanax pills. Mapstone would not turn over the
money to Patterson for the pills until he received them.
Patterson returned to Appellant’s vehicle, she told him to go
and take the money, she did not have any Xanax pills as
she had informed Stickles. Patterson was provided his
brother’s gun and returned to Stickles vehicle. At Stickles’
window, Patterson pulled out the gun and pointed it in the
window demanding all their money. Mapstone told Stickles
to go and the gun was fired into the vehicle. The bullet
passed in front of Stickles and hit Mapstone. Stickles drove
Mapstone to the hospital where he later died.
(PCRA Court Opinion, filed October 6, 2020, unnumbered at pp. 2-3).
On August 21, 2018, Appellant entered a negotiated plea of nolo
contendere to third-degree murder, conspiracy to commit robbery, and
recklessly endangering another person. The court imposed the negotiated
sentence of ten to twenty years’ imprisonment. Appellant did not file a direct
appeal. On August 19, 2019, Appellant timely filed a counseled first PCRA
petition. Appellant subsequently filed an amended PCRA petition on February
3, 2020. The PCRA court held an evidentiary hearing on February 28, 2020.
On July 14, 2020, the court denied PCRA relief. Appellant timely filed a notice
of appeal on August 10, 2020. On August 20, 2020, the court ordered
Appellant to file a Pa.R.A.P. 1925(b) concise statement of errors complained
of on appeal, and Appellant timely complied on September 9, 2020.
Appellant raises the following issues for our review:
Did the [PCRA] court abuse its discretion or err as a matter
of law when it ignored and failed to address evidence of
record that showed ineffective assistance of Appellant’s
counsel that during the legal timeframe of 10 days after
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sentencing Appellant’s counsel failed to return Appellant’s
phone calls and failed to contact her in any way after [being]
told by Appellant’s family members that Appellant wanted
to withdraw her pleas and instead stand trial?
Did the [PCRA] court abuse its discretion or err as a matter
of law when it denied Appellant’s request to vacate her nolo
contendere guilty pleas to third-degree murder and order a
trial of the felony underlying the second-degree homicide
offense of which she was originally charged due to
ineffective representation by Appellant’s counsel?
(Appellant’s Brief at 4).
Our standard of review of the denial of a PCRA petition is limited to
examining whether the evidence of record supports the court’s determination
and whether its decision is free of legal error. Commonwealth v. Conway,
14 A.3d 101 (Pa.Super. 2011), appeal denied, 612 Pa. 687, 29 A.3d 795(2011). This Court grants great deference to the findings of the PCRA court if
the record contains any support for those findings. Commonwealth v. Boyd,
923 A.2d 513 (Pa.Super. 2007), appeal denied, 593 Pa. 754, 932 A.2d 74(2007). We give no such deference, however, to the court’s legal conclusions.
Commonwealth v. Ford, 44 A.3d 1190 (Pa.Super. 2012). Traditionally,
credibility issues are resolved by the trier of fact who had the opportunity to
observe the witnesses’ demeanor. Commonwealth v. Abu-Jamal, 553 Pa.
485, 720 A.2d 79 (1998), cert. denied, 528 U.S. 810, 120 S.Ct. 41, 145
L.Ed.2d 38 (1999). “A PCRA court passes on witness credibility at PCRA
hearings, and its credibility determinations should be provided great deference
by reviewing courts.” Commonwealth v. Johnson, 600 Pa. 329, 356-357,
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966 A.2d 523, 539 (2009).
For purposes of disposition, we combine Appellant’s issues. Appellant
argues that after she was sentenced, she, her mother and grandmother
repeatedly telephoned counsel to discuss withdrawing her plea, but counsel
failed to respond. Appellant maintains that because counsel failed to return
their phone calls, he was unaware of Appellant’s intent to withdraw her plea.
Appellant insists the court erred in crediting plea counsel’s testimony at the
PCRA hearing that he did not receive any messages from Appellant after
sentencing. Appellant contends the court ignored counsel’s testimony that he
did not check his office telephone logs to determine whether he received any
phone calls. Appellant avers that counsel’s failure to respond to her and her
family’s messages prejudiced Appellant because it prohibited her from filing a
motion to withdraw her plea and/or a direct appeal. Appellant concludes
counsel was ineffective and this Court should vacate the order denying PCRA
relief, permit Appellant to withdraw her nolo contendere plea, and remand for
trial. We disagree.
Pennsylvania law presumes counsel has rendered effective assistance.
Commonwealth v. Williams, 597 Pa. 109, 950 A.2d 294 (2008). When
asserting a claim of ineffective assistance of counsel, the petitioner is required
to demonstrate: (1) the underlying claim is of arguable merit; (2) counsel had
no reasonable strategic basis for his action or inaction; and, (3) but for the
errors and omissions of counsel, there is a reasonable probability that the
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outcome of the proceedings would have been different. Commonwealth v.
Kimball, 555 Pa. 299, 724 A.2d 326 (1999). The failure to satisfy any prong
of the test for ineffectiveness will cause the claim to fail. Williams, supra.“The threshold inquiry in ineffectiveness claims is whether the
issue/argument/tactic which counsel has foregone and which forms the basis
for the assertion of ineffectiveness is of arguable merit....” Commonwealth
v. Pierce, 537 Pa. 514, 524, 645 A.2d 189, 194 (1994). “Counsel cannot be
found ineffective for failing to pursue a baseless or meritless claim.”
Commonwealth v. Poplawski, 852 A.2d 323, 327 (Pa.Super. 2004).
Once this threshold is met we apply the “reasonable basis”
test to determine whether counsel’s chosen course was
designed to effectuate his client’s interests. If we conclude
that the particular course chosen by counsel had some
reasonable basis, our inquiry ceases and counsel’s
assistance is deemed effective.
Pierce, supra at 524, 645 A.2d at 194-95 (internal citations omitted).
“Where matters of strategy and tactics are concerned, counsel’s
assistance is deemed constitutionally effective if he chose a particular course
that had some reasonable basis designed to effectuate his client’s interests.”
Commonwealth v. Sneed, 616 Pa. 1, 19, 45 A.3d 1096, 1107 (2012).
A finding that a chosen strategy lacked a reasonable basis
is not warranted unless it can be concluded that an
alternative not chosen offered a potential for success
substantially greater than the course actually pursued. A
claim of ineffectiveness generally cannot succeed through
comparing, in hindsight, the trial strategy employed with
alternatives not pursued.
Id. at 19-20, 45 A.3d at 1107 (internal citations and quotation marks
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omitted).
Prejudice is established when [an appellant] demonstrates
that counsel’s chosen course of action had an adverse effect
on the outcome of the proceedings. The [appellant] must
show that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding
would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the
outcome. In [Kimball, supra], we held that a criminal
[appellant] alleging prejudice must show that counsel’s
errors were so serious as to deprive the defendant of a fair
trial, a trial whose result is reliable.
Commonwealth v. Chambers, 570 Pa. 3, 21-22, 807 A.2d 872, 883 (2002)
(internal citations and quotation marks omitted). Importantly, boilerplate
allegations are insufficient to discharge this affirmative burden to rebut the
presumption of effectiveness. Commonwealth v. Pettus, 492 Pa. 558, 563,
424 A.2d 1332, 1335 (1981) (explaining court will not consider boilerplate
claims of ineffective assistance of counsel).
Generally, “[a] defendant wishing to challenge the voluntariness of a
guilty plea on direct appeal must either object during the plea colloquy or file
a motion to withdraw the plea within ten days of sentencing.”
Commonwealth v. Lincoln, 72 A.3d 606, 609-10 (Pa.Super. 2013), appeal
denied, 624 Pa. 688, 87 A.3d 319 (2014) (holding defendant failed to preserve
challenge to validity of guilty plea where he did not object during plea colloquy
or file post-sentence motion to withdraw plea).
Additionally:
[P]ost-sentence motions for withdrawal [of a guilty plea] are
subject to higher scrutiny [than pre-sentence motions to
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withdraw a plea] since courts strive to discourage entry of
guilty pleas as sentence-testing devices. A defendant must
demonstrate that manifest injustice would result if the court
were to deny [her] post-sentence motion to withdraw a
guilty plea. Manifest injustice may be established if the plea
was not tendered knowingly, intelligently, and voluntarily.
Commonwealth v. Kehr, 180 A.3d 754, 756-57 (Pa.Super. 2018) (citation
omitted). Further, “in terms of its effect upon a case, a plea of nolo
contendere is treated the same as a guilty plea.” Commonwealth v. Lewis,
791 A.2d 1227, 1230 (Pa.Super. 2002), appeal denied, 569 Pa. 717, 806 A.2d
859 (2002) (internal citation omitted).
With respect to counsel’s purported failure to file a direct appeal:
Our Supreme Court has held that where “there is an
unjustified failure to file a requested direct appeal, the
conduct of counsel falls beneath the range of competence
demanded of attorneys in criminal cases” and denies the
accused the assistance of counsel that is guaranteed by the
Sixth Amendment to the United States Constitution and
Article I, Section 9 of the Pennsylvania Constitution. Such
an oversight constitutes prejudice and per se ineffectiveness
under the PCRA. However, “[b]efore a court will find
ineffectiveness of trial counsel for failing to file a direct
appeal, Appellant must prove that [she] requested an
appeal and that counsel disregarded this request.”
Commonwealth v. Mojica, 242 A.3d 949, 955 (Pa.Super. 2020) (internal
citations omitted).
Instantly, Appellant testified at the PCRA hearing that she tried to call
counsel the day after she entered her plea. Appellant explained the reason
for her call as follows:
I just wanted to like discuss everything that happened. It’s
like, I can’t really explain like the experience whenever
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you’re, it’s like you’re here but you’re really not here. Do
you know what I mean? So I just wanted to call and try to
really talk everything over again and understand exactly
what, I knew ten to twenty was what I had…. I knew that
but I just wanted to discuss everything and talk about
everything again because I still didn’t really understand.
(N.T. PCRA Hearing, 2/28/20, at 11). On cross-examination Appellant
testified that “[a]fter I sat down and thought about the plea that I took I would
like to take that back. That’s not what I wanted to do. That’s not what I
wanted to do.” (Id. at 24). Appellant confirmed that at the time of the
hearing she wanted to withdraw her plea. (Id. at 25). Appellant also
acknowledged that she was “sure” counsel explained her appeal rights,
however, she could not recall his explanation specifically. (Id. at 10).
Appellant’s mother testified at the PCRA hearing that after sentencing
she spoke with Appellant, and Appellant informed her that she had been trying
to contact counsel. (Id. at 30). Appellant’s mother testified that following
her discussion with Appellant, she made numerous phone calls to counsel on
her daughter’s behalf and left him several messages. (Id.) Further,
Appellant’s mother explained the reason that she called counsel was simply to
ask counsel to go to the prison and see Appellant. (Id. at 31). Appellant’s
grandmother testified at the hearing that she also called counsel, and counsel
returned her phone call. (Id. at 35). Appellant’s grandmother told counsel
that Appellant “wanted more explanation and wanted to see him,” and they
also discussed the location of Appellant’s prison transfer and the deplorable
conditions at the county jail. (Id.)
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Plea counsel testified at the hearing that he was completely unaware of
any attempt by Appellant or her mother to contact him. (Id. at 46). Counsel
explained that he only had received phone calls from Appellant’s grandmother.
Counsel maintained that he never had any request from Appellant or her
family for him to file an appeal. (Id. at 47). On cross-examination, counsel
acknowledged that he did not check the phone logs in his office. (Id. at 50).
Under these circumstances, Appellant has failed to establish that she
informed counsel of her intent to withdraw her plea. Although Appellant
testified that the reason she called counsel the day after sentencing was to
“discuss everything,” she did not specifically mention that she wanted to
withdraw her plea. (Id. at 11). Further, none of Appellant’s witnesses
testified that they informed counsel of Appellant’s intent to withdraw her plea.
Rather, Appellant’s mother and grandmother confirmed that they only
contacted counsel to ask him to visit Appellant in prison and explain the
circumstances surrounding her plea. (Id. at 31). Additionally, plea counsel
testified that he did not receive any messages from Appellant or her mother.
(Id. at 46).
As the PCRA court explained:
In her Amended PCRA [petition], Appellant asserted that her
counsel failed to respond to her requests post trial to call
her to discuss withdrawing her sentence and/or to file an
appeal in a timely manner. Counsel disputes this statement.
He testified that he had no messages from her after the trial.
She asserts that her counsel failed to return her calls and
failed to return the telephone calls of her mother and
grandmother. Appellant admitted that she did not send
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counsel any written correspondence informing him of her
change of mind. The mother testified that she had left
messages for counsel but she did not testify that any of
those messages informed him that Appellant wanted to
withdraw her plea or have an appeal filed.
Appellant’s grandmother did testify she had left a message
for Appellant’s counsel after the trial and that counsel had
returned her telephone message. However, she testified
that she spoke to him about Appellant’s desire to leave the
local prison. There was no discussion with counsel that
Appellant wanted to withdraw her plea. Appellant’s
grandmother, Cathy Brumley, testified that Appellant had
only told her that she wished to leave the Fayette County
Prison but there was no testimony that Appellant had even
informed her grandmother that she wished to withdraw her
plea. Counsel for Appellant testified that he did not receive
any messages from Appellant post trial. Nor did he receive
any message from Appellant’s mother. He did receive and
returned the telephone call of Appellant’s grandmother. He
further testified that he was never informed that Appellant
wanted to withdraw her plea or wanted an appeal.
Appellant testified that she did not send any correspondence
to counsel when he failed to return her telephone calls. Nor
did Appellant provide any evidence, such as her telephone
records during her incarceration to substantiate her
statements that she attempted to contact him.
(PCRA Court Opinion at unnumbered p. 5). The PCRA court credited counsel’s
testimony (see id. at unnumbered p. 6), and we are bound by that
determination. See Johnson, supra. The court further noted that
Appellant’s testimony at the PCRA hearing directly and clearly contradicted
her prior testimony at the time of her plea. Id.Even if Appellant could establish that counsel ignored calls from
Appellant and her family members, Appellant failed to demonstrate prejudice,
namely, that the court would have granted a post-sentence motion to
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withdraw her plea. Indeed, Appellant fails to even acknowledge the “manifest
injustice” standard required to withdraw a plea post-sentencing. See Kehr,
supra. Likewise, although Appellant claims counsel was ineffective for failing
to file a direct appeal, she did not testify at the PCRA hearing that she asked
counsel to file an appeal on her behalf. See Mojica, supra. For these
reasons, Appellant’s claims of plea counsel’s ineffectiveness fail. Accordingly,
we affirm.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 04/30/2021
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