Com. v. Brecht, D.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
DANIEL LYNN BRECHT
Appellant No. 1922 WDA 2016
Appeal from the PCRA Order entered November 30, 2016
In the Court of Common Pleas of Warren County
Criminal Division at No: CP-62-CR-0000524-2013; CP-62-CR-0000525-
2013
BEFORE: STABILE, MUSMANNO, JJ., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY STABILE, J.: FILED JULY 24, 2018
Appellant, Daniel Lynn Brecht, appeals from the November 30, 2016
order dismissing his petition pursuant to the Post Conviction Relief Act
(“PCRA”), 42 Pa.C.S.A. §§ 1-9546. We affirm.
A prior panel of this Court summarized the relevant procedural history:
In his two criminal cases, [Appellant] was charged initially
with a total of one hundred and seventy-four charges relating to
the protracted sexual abuse of two different children. Following
plea negotiations with the Commonwealth, [Appellant] agreed to
plead guilty to one count each of rape by forcible compulsion,
statutory sexual assault, sexual assault, aggravated indecent
assault, indecent assault of a person less than thirteen years old,
and corruption of the morals of a minor.2
2 18 Pa.C.SA. §§ 3121(a)(1), 3122.1, 3142.1,
3125, 3126(a)(7), and 6301, respectively. […]
All other charges were nolle prossed by the Commonwealth.
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On June 16, 2014, [Appellant] appeared before the trial
court to plead guilty to the negotiated terms as set forth above.
At the guilty plea hearing, [Appellant], who was sixty-three years-
old at the time of his plea, confirmed that he was not under the
influence of alcohol or controlled substances at the time of his
plea. He further declared that he understood all of the
constitutional rights that he was waving by entering guilty pleas,
and that he had no questions for the court in that regard.
[Appellant] stated that he was entering the plea on his own free
will, that there were no promises made to him with regard to the
sentence that he would receive, and that he was not forced or
threatened to take the plea. [Appellant] conceded that he had
ample time to consult with his attorney, and that he was satisfied
with his attorney’s advice. Finally, [Appellant] confirmed his
understanding that, by pleading guilty to multiple offenses, he
could receive consecutive sentences for each crime to which he
pleaded guilty. The trial court accepted the plea, and ordered
[Appellant] to be evaluated for purposes of a sexually violent
predator hearing.
Commonwealth v. Brecht, 139 WDA 2015 (Pa. Super. September 22,
2015), unpublished memorandum at 1-3.
On October 16, 2014, the trial court imposed an aggregate 188 to 376
months of incarceration, comprised of consecutive sentences for each count.
Appellant filed a motion to withdraw his plea on October 20, 2014. The trial
court denied that motion at the conclusion of a January 8, 2015 hearing.
Appellant filed a timely direct appeal, and this Court affirmed the judgment of
sentence. See id. Appellant did not file a petition for allowance of appeal in
the Pennsylvania Supreme Court. On August 5, 2016, Appellant filed a timely,
counseled, first PCRA petition. The PCRA court conducted a hearing on
November 28, 2016. The PCRA court denied Appellant’s petition at the
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conclusion of the hearing, but the order was docketed two days later, on
November 30, 2016.
Appellant filed this timely appeal on December 16, 2016. He presents
five questions for our review:
1. Was trial counsel ineffective for never independently
investigating the case or seriously mounting a defense to
these charges[?]
2. Was trial counsel ineffective for never exploring a good
character defense with [Appellant] although [Appellant]
had no prior criminal record and had people willing to
come to court and testify as to his good character for
being law abiding[?]
3. Did trial counsel have a conflict of interest because if he
convinced his client to enter a plea, he would get a
windfall ($40,000) for his limited, minimal, insignificant
services as opposed to putting in the time and effort to
determine if a jury trial would be appropriate under the
circumstances of this case[?]
4. Did trial counsel misrepresented [sic] the terms of the
plea agreement which falsely induced [Appellant] to
enter a plea[?]
5. Was trial counsel ineffective for not investigating the
facts surrounding a charge of one count of rape, where
[Appellant] is impotent with erectile dysfunction and was
incapable of getting an erection or engaging in
intercourse[?]
Appellant’s Brief at 3.
We review the PCRA court’s order to determine whether the record
supports its findings of fact and whether it committed an error of law.
Commonwealth v. Reyes-Rodriguez, 111 A.3d 775, 779 (Pa. Super.
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2015), appeal denied, 123 A.3d 331 (Pa. 2015). We conduct de novo review
of the PCRA court’s conclusions of law. Id.Appellant argues that counsel was ineffective. To prevail on this claim,
a PCRA petitioner must plead and prove that (1) the underlying issue is of
arguable merit; (2) counsel had no reasonable strategic basis for the action
or inaction; and (3) counsel’s mistake prejudiced the petitioner.
Commonwealth v. Chmiel, 30 A.3d 1111, 1127 (Pa 2001). As to the second
prong, we do not consider whether there were better strategic alternatives;
rather, we consider whether counsel had any reasonable basis for the disputed
action or inaction. Id. For the third prong, prejudice, we examine whether
the outcome of the proceeding would have been different but for counsel’s
error. Id. We presume counsel’s effectiveness, and the petitioner has the
burden of proving otherwise. Commonwealth v. Brown, 767 A.2d 576, 581
(Pa. Super. 2001). To demonstrate prejudice, the petitioner must show a
reasonable probability that, but for counsel’s mistakes, the petitioner would
have proceeded to trial. Commonwealth v. Hickman, 799 A2d 136, 141
(Pa. Super. 2002).
In all but his third question presented, Appellant challenges the
adequacy of plea counsel’s services in connection with Appellant’s guilty plea.
We must therefore be mindful of the following:
It is clear that a criminal defendant’s right to effective
counsel extends to the plea process, as well as during trial.
However, [a]llegations of ineffectiveness in connection with the
entry of a guilty plea will serve as a basis for relief only if the
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ineffectiveness caused the defendant to enter an involuntary or
unknowing plea. 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.
Commonwealth v. Wah, 42 A.3d 335, 338–39 (Pa. Super. 2012) (quoting
Commonwealth v. Allen, 833 A.2d 800, 802 (Pa. Super. 2003), appeal
denied, 860 A.2d 488 (Pa. 2004)).
Our Supreme Court has addressed the adequacy of counsel’s
investigation:
[S]trategic choices made after thorough investigation of law
and facts relevant to plausible options are virtually
unchallengeable; and strategic choices made after less than
complete investigation are reasonable precisely to the extent that
reasonable professional judgments support the limitations on
investigation. In other words, counsel has a duty to make
reasonable investigations or to make a reasonable decision that
makes particular investigations unnecessary. In any
ineffectiveness case, a particular decision not to investigate must
be directly assessed for reasonableness in all the circumstances,
applying a heavy measure of deference to counsel’s judgments.
Commonwealth v. Williams, 141 A.3d 440, 463 (Pa. 2016) (quoting
Strickland v. Washington, 466 U.S. 668, 690-91 (1984)).
Appellant first asserts that counsel’s investigation was inadequate and
that he failed to mount a serious defense. Appellant claims plea counsel failed
to seek relevant discovery, including note cards one of the victims kept with
respect to the alleged assaults and the mental health records of the other
victim, who allegedly suffers from hallucinations. Appellant also claims,
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among other things, that counsel should have hired an investigator to explore
inconsistencies in the victims’ accounts of the assaults.
At the PCRA hearing, plea counsel testified that he believed based on
his observations of them at the preliminary hearing that both victims would
make strong trial witnesses. Id. at 88. Counsel stated that Appellant
admitted to some but not all of the charged conduct in his initial interview with
the State Police. Id. at 101. “[H]is main defense was, I did some of this, but
not all of it.” Id. Counsel did not think that was a good strategy for a jury
trial in this case. Given his assessment of the strength of the Commonwealth’s
case and the 174 charges pending against Appellant, counsel elected to
engage in early plea negotiations. The PCRA court noted that Appellant
authorized counsel to engage in those negotiations. PCRA Court Opinion,
5/1/17, at 9.
While Appellant may have felt that he was being ‘pressured’
by trial counsel, the reality of facing two (2) compelling victims’
testimony, a partial confession, and potential sentences that
would effectively result in a life sentence, this strategy was not
unreasonable. Once the Appellant decided to accept responsibility
for his conduct, and advised counsel to pursue plea negotiations,
trial counsel had a reasonable basis for not pursuing further
investigations.
[…]
Once the Appellant instructed trial counsel to pursue this
strategy, which we find to be true, counsel cannot be faulted
with pursuing that objective, negotiating a plea that results in
96% of the charges being nolle prossed, and the Appellant
ultimately entering a voluntary plea to the charges.
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Id. at 9. In summary, the PCRA court credited counsel’s testimony that the
victims would make strong witnesses, and that Appellant wished to engage in
early plea negotiations. We reject Appellant’s first argument based on the
PCRA court’s opinion.
Next, Appellant claims trial counsel was ineffective for failing to locate
and interview potential character witnesses.
A defense counsel’s failure to call a particular witness to
testify does not constitute ineffectiveness per se. In establishing
whether defense counsel was ineffective for failing to call
witnesses, a defendant must prove the witnesses existed, the
witnesses were ready and willing to testify, and the absence of the
witnesses’ testimony prejudiced petitioner and denied him a fair
trial.
[…]
Evidence of good character offered by a defendant in
a criminal prosecution must be limited to his general
reputation for the particular trait or traits of
character involved in the commission of the crime charged.
The cross-examination of such witnesses by the Commonwealth
must be limited to the same traits. Such evidence must relate to
a period at or about the time the offense was committed, and
must be established by testimony of witnesses as to the
community opinion of the individual in question, not
through specific acts or mere rumor.
Commonwealth v. Johnson, 27 A.3d 244, 247-48 (Pa. Super. 2011)
(internal citations and quotation marks omitted; emphasis in original).
The PCRA Court reasoned that character evidence was unlikely to help
Appellant in the instant case, given his partial confession and the strong victim
witnesses. Furthermore, At the PCRA hearing, Appellant presented only one
possible character witness, and he testified that he and a few of Appellant’s
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acquaintances and coworkers were surprised to learn of the charges. PCRA
Court Opinion, 5/1/17, at 11. Thus, the PCRA court concluded that Appellant
failed to establish that a fuller investigation of potential character witnesses
would have led Appellant to reject the plea bargain and proceed to trial. We
agree, and we reject Appellant’s second argument based on the PCRA court’s
opinion.
Third, Appellant claims that counsel had a conflict of interest because
he paid counsel a nonrefundable $40,000.00 retainer. Appellant insinuates
that plea counsel had an incentive to do as little work as possible after his
receipt of the $40,000.00. Appellant claims counsel did not hire an
investigator because the investigator would have been paid out of the
$40,000.00. In support of his argument, Appellant cites Rule 1.5(a) of the
Rules of Professional Conduct, which states that “[a] lawyer shall not enter
into an agreement for, charge, or collect an illegal or clearly excessive fee.”
Pa.R.P.C. 1.5(a). He does not develop any legal argument that an allegedly
excessive fee supports a finding that counsel rendered ineffective assistance.
The PCRA court summarized its findings and rationale:
This court cannot conclude that trial counsel, motivated by
greed, mislead [sic] the Appellant with respect to his case, and
coerced the Appellant into an involuntary guilty plea. The court
can conclude, that trial counsel reasonably pursued an early plea
strategy, that Appellant entered a knowing and voluntary plea as
a result, and in hindsight is unhappy with both the court’s
sentence and the excessive fee charged by counsel.
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PCRA Court Opinion, 5/1/17, at 12. We reject Appellant’s argument based on
the PCRA court’s opinion.
Fourth, Appellant claims counsel was ineffective for advising him that
the prosecutor would not object to a seven-year minimum sentence. As noted
above, the trial court imposed a considerably longer minimum sentence.
Regardless, Appellant litigated this issue on direct appeal in challenging the
trial court’s denial of his post-sentence motion to withdraw his guilty plea:
Instantly, we agree with appellate counsel and the trial court
that [Appellant] cannot demonstrate that manifest injustice will
result if he were not permitted to withdraw his guilty plea. First,
the record unequivocally demonstrates that [Appellant’s] decision
to plead guilty was knowing, intelligent, and voluntary. Second,
at the guilty plea hearing, [Appellant] confirmed that he was
entering the plea on his own free will, that he was not forced or
threatened in any fashion to take the plea, and that he understood
that there was no agreement regarding the sentence that he
would receive. [Appellant] also asserted that he was satisfied with
his attorney and that his attorney discussed the facts and possible
sentences at length. Finally, [Appellant] acknowledged that the
court was not bound by any agreement, and that the court could
impose all sentences to run consecutively to each other.
At the post-sentence motion hearing, [Appellant] attempted
to portray the pre-trial discussions with counsel as coercive.
[Appellant] maintained that he felt like he was being funneled into
a guilty plea based upon counsel’s assurances that the
Commonwealth would not object to a minimum prison term of
seven years and that, if he went to trial and lost, he would be
sentenced potentially to hundreds of years in prison. However, in
the same hearing, [Appellant] admitted that counsel did not
promise or guarantee any particular sentence if [Appellant]
pleaded guilty.
Brecht, 139 WDA 2015, unpublished memorandum at 10-11. Appellant
cannot make out the first prong of an ineffective assistance claim because he
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already litigated the underlying issue on direct appeal. 42 Pa.C.S.A.
§ 9543(a)(3). We are cognizant that this Court on direct appeal decided the
case under the manifest injustice standard applicable to post-sentence plea
withdrawals. Regardless, our prior memorandum clearly demonstrates that
this issue is without arguable merit.
Finally, Appellant claims that counsel was ineffective for failing to
develop a defense based on Appellant’s erectile dysfunction, which would have
rendered it impossible for him to penetrate the victims’ vaginas with his penis,
as alleged under some of the charges. At the PCRA hearing, Appellant failed
to prove his claim.
[Appellant] presented some medical records at [the]
hearing from between 2010 and 2013. They reference a past
diagnosis of impotence of organic origin. Appellant’s sexual
assaults of his two stepdaughters occurred from 2003 to 2010.
Appellant testified briefly about his diagnosis and some
discussions with trial counsel and presentation of medical records,
as did his sister. Trial counsel confirmed the same.
However, no testimony was presented establishing that the
Appellant was unable to achieve an erection at the time the sexual
assaults were committed. No expert medical testimony was
presented as to the nature of the dysfunction or any prescribed
treatment. No medical testimony was presented that it was a
permanent or total disability or whether [Appellant] was unable to
achieve an erection or maintain an erection. The Appellant took
the witness stand at his hearing on the motion to withdraw his
guilty plea, represented by different counsel, and asserted his
innocence without any mention whatsoever of impotency or
erectile dysfunction and no explanation of his admission to some
sexually assaultive conduct.
We reject Appellant’s final argument based on the PCRA court’s May 1, 2017
opinion.
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For all of the foregoing reasons, we affirm the PCRA court’s order, and
we direct that a copy of the PCRA court’s May 1, 2017 opinion be filed along
with this memorandum.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/24/2018
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Circulated 06/29/2018 03:57 PM