Com. v. Briley, R.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
RONALD J. BRILEY
Appellant No. 2275 MDA 2015
Appeal from the PCRA Order December 10, 2015
In the Court of Common Pleas of Dauphin County
Criminal Division at No(s): CP-22-CR-0003888-2011
BEFORE: BENDER, P.J.E., PANELLA, J., and STEVENS, P.J.E.
MEMORANDUM BY PANELLA, J. FILED AUGUST 26, 2016
Appellant, Ronald J. Briley, appeals from the order entered December
10, 2015, in the Court of Common Pleas of Dauphin County, dismissing his
petition filed pursuant to the Post Conviction Relief Act, 42 Pa.C.S.A. §§
9541-9546. We affirm.
When he was just 14 years old, Briley and three others robbed a
grocery store in Harrisburg. Upon completion of the robbery, Briley shot the
owner, Chong Kwak, in the head. Kwak did not die in the shooting, but was
rendered comatose.
The Commonwealth tried Briley as an adult. After a bench trial, the
court convicted him of aggravated assault, robbery, criminal conspiracy, and
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Former Justice specially assigned to the Superior Court.
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other charges. The court sentenced him to 20 to 41 years in prison. This
Court affirmed the judgment of sentence. See Commonwealth v. Briley,
1067 Harrisburg 1997 (Pa. Super., filed July 31, 1998) (unpublished
memorandum).
Kwak’s comatose state lasted for nearly 16 years. He died on June 22,
2011. The cause of death was determined to be complications from the
gunshot wound. The Commonwealth charged Briley with first- and second-
degree murder. In exchange for his entry of a guilty plea to second-degree
murder, the Commonwealth withdrew the first-degree murder charge. The
trial court later sentenced Briley to 35 years to life1 in prison, with credit for
time served and concurrent to his prior sentences. Briley filed a post-
sentence motion, asking for modification of his sentence and withdrawal of
his guilty plea. The trial court denied the motion. Briley appealed. This Court
affirmed the judgment of sentence. See Commonwealth v. Briley, 443
MDA 2014 (Pa. Super., filed November 5, 2014) (unpublished
memorandum).
Briley filed, pro se, a timely PCRA petition alleging ineffective
assistance of trial counsel claims and the illegality of his sentence. The PCRA
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1
Because of his age at the time of the shooting, Briley was not subject to a
mandatory sentence of life without parole. See Miller v. Alabama, 132
S.Ct. 2455 (2012). Rather, the trial court sentenced him in accordance with
18 Pa.C.S.A. § 1102.1(c)(2) (“A person who at the time of the commission
of the offense was under 15 years of age shall be sentenced to a term of
imprisonment the minimum of which shall be at least 20 years to life.”)
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court appointed counsel. Appointed counsel subsequently moved to
withdraw. The PCRA court provided notice of its intent to dismiss the petition
without a hearing and to grant appointed counsel’s request to withdraw. On
December 10, 2015, the PCRA court entered an order dismissing the
petition. Briley timely appealed.2
This Court’s standard of review regarding an order dismissing a
petition under the PCRA is whether the determination of the PCRA court is
supported by the evidence of record and is free of legal error. See
Commonwealth v. Halley, 870 A.2d 795, 799 n.2 (Pa. 2005). The PCRA
court’s findings will not be disturbed unless there is no support for the
findings in the certified record. See Commonwealth v. Carr, 768 A.2d
1164, 1166 (Pa. Super. 2001). A PCRA court may decline to hold a hearing
on the petition if the court determines that the petitioner’s claims are
patently frivolous and are without a trace of support either in the record or
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2
The order dismissing the PCRA petition did not grant appointed counsel’s
motion to withdraw. This Court ordered appointed counsel to enter her
appearance. Appointed counsel filed a response, claiming that because the
PCRA court’s notice of intent to dismiss the petition noted that it intended to
grant her motion to withdraw as counsel, she was permitted to withdraw.
This, of course, is a patently incorrect position. Thus, this Court ordered
counsel to either enter her appearance or resolve the motion to withdraw in
the PCRA court. Appointed counsel returned to the PCRA court. The PCRA
court entered an order stating that appointed counsel’s petition to withdraw
was proper and granted her permission to withdraw as counsel. This Court
then entered an order providing that Briley is proceeding pro se in this
appeal.
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from other evidence. See Commonwealth v. Jordan, 772 A.2d 1011, 1104
(Pa. Super. 2001).
Briley first maintains that trial counsel was ineffective for failing to
petition the trial court for a writ of habeas corpus. We disagree.3
In addressing Briley’s ineffective assistance of counsel claims, we
apply the following principles. We presume counsel’s effectiveness and an
appellant has the burden of proving otherwise. See Commonwealth v.
Pond, 846 A.2d 699, 708 (Pa. Super. 2004).
In order for Appellant to prevail on a claim of ineffective
assistance of counsel, he must show, by a preponderance of the
evidence, ineffective assistance of counsel which, in the
circumstances of the particular case, so undermined the truth-
determining process that no reliable adjudication of guilt or
innocence could have taken place. Appellant must demonstrate:
(1) the underlying claim is of arguable merit; (2) that counsel
had no reasonable strategic basis for his or her action or
inaction; and (3) but for the errors and omissions of counsel,
there is a reasonable probability that the outcome of the
proceedings would have been different. The petitioner bears the
burden of proving all three prongs of the test.
Commonwealth v. Johnson, 868 A.2d 1278, 1281 (Pa. Super. 2005)
(citations omitted).
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3
The Commonwealth takes the position that by pleading guilty “the only
issues that [Briley] could appeal would be the legality of his sentence, the
voluntariness of his plea, and the jurisdiction.” Commonwealth’s Brief, at 11.
See also id., at 12 (noting that Briley cannot challenge the effectiveness of
plea counsel because he pled guilty). The Commonwealth’s position is
patently incorrect. See 42 Pa.C.S.A. § 9543(a)(2)(ii). This case is not here
on direct appeal; it is a collateral proceeding under the PCRA.
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Briley contends that the Commonwealth did not establish at the
preliminary hearing that “Appellant’s actions caused Mr. Kwak’s death” and
that “the evidence presented by the Commonwealth did not rule out an
intervening cause of the death of Mr. Kwak during his 15 year convalescent
[sic] prior to death.” Appellant’s Brief, at 13. Thus, according to Briley, trial
counsel should have petitioned, prior to trial, the court for a writ of habeas
corpus. See, e.g., Commonwealth v. Morman, 541 A.2d 356, 357 (Pa.
Super. 1988) (“It is clear that the proper means for testing the finding that
the Commonwealth has sufficient evidence to establish a prima facie case is
to petition the trial court for a writ of habeas corpus.”)
The record flatly contradicts Briley’s assertions. As we explained on
direct appeal, “[t]he cause of death was determined to be complications
from the gunshot wound….” Briley, 443 MDA 2014, at 2. And it was not in
dispute that Briley was the shooter—he was already serving a judgment of
sentence stemming from his shooting of Kwak. This claim is meritless.
Briley next maintains that his trial counsel rendered ineffective
assistance of counsel in connection with his guilty plea. This claim is without
merit.
“Claims challenging the effectiveness of plea counsel’s stewardship
during a guilty plea are cognizable under 42 Pa.C.S.A. § 9543(a)(2)(ii).”
Commonwealth v. Lee, 820 A.2d 1285, 1287 (Pa. Super. 2003) (citation
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omitted). We review allegations of counsel’s ineffectiveness in connection
with a guilty plea as follows:
The standard for post-sentence withdrawal of guilty pleas
dovetails with the arguable merit/prejudice requirements for
relief based on a claim of ineffective assistance of plea counsel
under which the defendant must show that counsel’s deficient
stewardship resulted in a manifest injustice, for example, by
facilitating entry of an unknowing, involuntary, or unintelligent
plea. See, e.g., [Commonwealth v.] Allen, 557 Pa. [135,]
144, 732 A.2d [582,] 587 [(1999)] (“Allegations of
ineffectiveness in connection with the entry of a guilty plea will
serve as a basis for relief only if the ineffectiveness caused
appellant to enter an involuntary or unknowing plea.”)….
This standard is equivalent to the ‘manifest injustice’ standard
applicable to all post-sentence motions to withdraw a guilty plea.
Commonwealth v. Morrison, 878 A.2d 102, 105 (Pa. Super. 2005) (some
citations omitted; brackets in original).
Briley’s claim centers on the allegation “that trial counsel did not
adequately investigate the facts of the case.” Appellant’s brief, at 14. To wit,
“counsel was unaware of any intervening or supervening causes of Mr.
Kwak’s death during his 15 year convalescent [sic] prior to his death.” Id.As noted, the record is devoid of any “intervening or supervening
causes.” The cause of death was complications from the gunshot. Briley’s
claim concerning an intervening or supervening cause is pure speculation.
Simply pleading it does not make it so. Briley has the burden in this PCRA
proceeding to prove this claim. See Commonwealth v. Simmons, 804
A.2d 625, 639 (Pa. 2001) (“[T]he unshifting burden to prove ineffectiveness
always rests upon the defendant….”) Briley, despite being provided Kwak’s
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voluminous medical records and an expert4, has not come forward with any
evidence whatsoever (e.g., an expert medical opinion) of an intervening or
supervening cause. This claim has no merit.
In his next issue, Briley continues to impugn counsel’s effectiveness
during the guilty plea. We address each claim in turn. None have merit.
He begins5 by claiming that counsel told him that if he went to trial
“the judge would sentence him to life imprisonment despite new laws
concerning juvenile life.” Appellant’s Brief, at 17. Briley’s allegation suggests
that Miller foreclosed the imposition of life imprisonment for juvenile
offenders. By this allegation, Briley seems to feign ignorance of the Supreme
Court’s decision in Miller. The record flatly contradicts this claim. The
prosecutor informed Briley at the guilty plea hearing that Miller “ruled that
it was unconstitutional to mandate a minimum sentence of life imprisonment
for a murder of the first-degree, second degree murder if it was committed
by a juvenile.” N.T., Guilty Plea, 9/4/13, at 3. Briley stated that he
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4
The trial court provided Briley funds to retain a forensic pathologist.
5
Briley lists other allegations in this section of his brief that have nothing to
do with the ineffective assistance of counsel in connection with his guilty
plea. We decline to address these allegations. We briefly observe, however,
that Briley contends that counsel rendered ineffective assistance by failing to
move to withdraw his plea by filing a post-sentence motion. Counsel filed
such a motion requesting that very relief. As we noted on direct appeal,
“Appellant filed a post-sentence motion, asking for modification of sentence
and withdrawal of his guilty plea.” Briley, 443 MDA 2014, at 2 (emphasis
added).
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understood that and that he read the decision. See id., at 3-4. The
prosecutor explained to him “that it doesn’t bar the imposition of a life
sentence but it does require that the sentencer has the option of giving
something less than the minimum sentence of life in prison.” Id., at 4. Briley
again responded that he understood. See id., at 4. Thus, Briley was aware
that Miller did not foreclose a life sentence.
Briley next alleges that trial counsel rendered ineffective assistance
during the plea by telling him that it was in his best interest to plead guilty
“despite evidence that Mr. Kwak’s death may not have been his fault[.]”
Appellant’s Brief, at 17. As noted, there is no such “evidence” in the record.
And Briley does not even explain what this “evidence” is.
He also contends that trial counsel was ineffective in failing to inform
him that his prison record would be a part of his pre-sentence investigation
report and that its “damaging contents” could affect his sentence.
Appellant’s Brief, at 17. Again, the record flatly contradicts this claim. The
prosecutor explained to Briley at the guilty plea hearing that the report
would contain information about his time spent in prison, as well as
information about his background before he went to prison. See N.T., Guilty
Plea Hearing, 9/4/13, at 6. And, further, that the report would “inform” the
trial court’s decision as to how to impose the sentence. Id. Briley indicated
he understood. See id. The prosecutor thus expressly informed Briley that
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his prison record would be a part of the pre-sentence investigation report
and that it would affect his sentence.
Briley next claims that his counsel informed him that by pleading guilty
the trial court would not sentence him to over 25 years in prison. Yet again,
the record contradicts this claim. The prosecutor informed Briley that by
entering an open plea of guilty to second degree murder under §
1102.1(c)(2) of the Crimes Code, the trial court would have to impose at
least 20 years to life in prison. See id. The prosecutor further explained that
“[t]he [c]ourt could impose that sentence, could impose life imprisonment,
could impose some sentence greater than 20 years to life imprisonment. It
would be within the sentencer’s discretion.” Id. Briley responded he
understood. See id. The prosecutor put Briley on notice that his sentence, at
the minimum, would have to be at least 20 years to life.
In his next issue, Briley argues that his sentence is illegal as §
1102.1(c)(2) violates the Ex Post Facto Clause. A panel of this Court has
rejected this very argument with respect to the 35-year mandatory
minimum for first-degree murder under § 1102.1(a)(1). See
Commonwealth v. Brooker, 103 A.3d 325, 340-343 (Pa. Super. 2014).
We can discern no meaningful distinction in this regard between subsections
(a)(1) and (c)(2). Briley does not even cite Brooker. This claim has no
merit. His sentence is legal.
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Briley’s final claim is that PCRA counsel failed to file an amended PCRA
petition raising the claims he makes on appeal. Given our resolution of the
issues presented in this appeal, this claim is moot.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/26/2016
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