Com. v. Brown, L.

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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.

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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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