Com. v. Brown, S.

J-S23022-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

STEVEN BROWN :

:

Appellant : No. 1767 EDA 2022

Appeal from the PCRA Order Entered June 13, 2022,

in the Court of Common Pleas of Philadelphia County,

Criminal Division at No(s): CP-51-CR-0007538-2018.

BEFORE: PANELLA, P.J., KUNSELMAN, J., and KING, J.

MEMORANDUM BY KUNSELMAN, J.: FILED SEPTEMBER 21, 2023

Steven Brown appeals from the order denying his first timely petition

filed pursuant to the Post Conviction Relief Act (“PCRA”). 42 Pa.C.S.A. §§

9541-46. We affirm.

The PCRA court summarized in detail the pertinent facts and procedural

history as follows:

[Brown] first went before [the trial court] on August 20,

2019, for a negotiated plea proceeding, where he was represented

by [plea counsel]. At the beginning of the proceeding, [the court]

went over the negotiated plea deal offered by the Commonwealth

with [Brown]. [The court] also explained to [Brown], at length,

that were he to be convicted at trial of the two (2) charges that

encompassed the Commonwealth’s negotiated plea deal, he could

face a maximum sentence of sixteen (16) to forty (40) years [of]

confinement on each charge, whereas were [Brown] to plead, the

Commonwealth would recommend a sentence of four (4) to eight

(8) years of confinement, followed by three (3) years of reporting

probation with the Sex Offender’s Unit of the probation

department.

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[Brown] stated that he wanted to negotiate the plea deal

further. The Commonwealth explained that [plea counsel] had

already attempted to negotiate a lower offer, but the current plea

deal was the lowest the Commonwealth would permit. [The court]

further relayed that should [Brown] move forward with trial, the

Commonwealth would be proceeding with several other felony

charges and that their plea offer would no longer be available to

[him]. [The court] then permitted [Brown] to speak with [plea

counsel] before deciding if he would accept or deny the plea offer.

Accordingly, [the court] ensured that [Brown] was apprised of his

options for how to proceed and was well-informed before

ultimately deciding which route he was most comfortable

proceeding with.

[Brown] first agreed to move forward with a negotiated no

contest plea to Involuntary Deviate Sexual Intercourse (IDSI) and

Unlawful Contact With Minor (Unlawful Contact). [The court]

reviewed a written plea colloquy [Brown] completed with [plea

counsel], in which [Brown] stated that he understood the

maximum sentence for the two charges and what rights he was

giving up by pleading no contest instead of going to trial. [The

court] also conducted an extensive oral colloquy with [Brown], in

which he agreed that he was pleading no contest of his own free

will after having had an opportunity to fully discuss his case with

[plea counsel].

Subsequently, the Commonwealth read out a summary of

the facts forming the basis of [Brown’s] no contest plea:

Had this case gone to trial, the complaining witness, [C.C.],

would have testified that between the months of May 2018

and September 21st, 2018, while living on Judson Street in

Philadelphia, [Brown], who is her biological uncle, did lick

her vagina on multiple occasions, did stick his penis inside

of her vagina on multiple occasions, and the last dated

incident was on September 21st, 2018, when she disclosed

to her mother, and the case was reported to the Special

Victims Unit of the Philadelphia Police Department. . . .

[C.C.] was thirteen (13) years of age and [Brown] was

thirty-nine (39) years old.

After the Commonwealth finished reading out the summary

of facts, [the court] saw [Brown] shaking his head and inquired

about whether [Brown] was sure he wanted to accept the

negotiated plea offer. While [he] confirmed that he wanted to

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plead no contest, [the court] wanted to be sure that [Brown] was

making the decision voluntarily, stating “People can plead guilty

for all kinds of reasons; however, it has to be voluntary in my

courtroom, and if you can’t do it voluntarily, we’ll have a trial and

go from there. That’s fine too. I don’t force anybody to plead

guilty.” [The court] then permitted [Brown] to speak with [plea

counsel] again regarding his decision. Thereafter, [plea counsel]

advised that [Brown] was “indecisive in what he want[ed] to do,”

and requested the [court to] allow him to sleep on it. [The court]

granted [Brown’s] request and confirmed with [Brown] that he

would be given until the following morning to decide whether he

wanted to accept the plea deal or move forward with trial.

On August 21, 2019, [Brown] entered a plea to both IDSI

and Unlawful Contact. [The court] incorporated the plea colloquy

from the previous day and confirmed with [Brown] that he was

pleading of his own free will and that he was satisfied with [plea

counsel]’s representation. The Commonwealth then read the facts

of the plea and [the court] confirmed with [Brown] that he was

pleading no contest to those facts. [The court] then immediately

proceeded to sentencing and accepted the negotiated plea, noting

that the offer was appropriate after hearing from counsel and

[Brown]. [The court] sentenced [Brown] to two (2) concurrent

sentences of four (4) to eight (8) years [of incarceration], plus

three (3) years of probation to be supervised by the Sex Offender

Unit of the Philadelphia County Probation and Parole.

PCRA Court Opinion, 11/8/22, at 1-4 (citations and footnotes omitted). Brown

filed neither a post-sentence motion nor a direct appeal.

On September 17, 2020, Brown filed a pro se PCRA petition. The PCRA

court appointed counsel, and PCRA counsel filed an amended petition on July

5, 2021, and a supplemental amended petition on August 11, 2021. In these

filings, Brown claimed that his no-contest plea was not knowingly, voluntarily,

or intelligently entered due to the ineffectiveness of plea counsel. Brown

sought post-conviction relief in the form of a new trial, reinstatement of his

post-sentence and appellate rights nunc pro tunc, and an evidentiary hearing.

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The PCRA court held an evidentiary hearing on March 15, 2022. Both

Brown and plea counsel testified. On May 5, 2022, the PCRA court issued a

Pa.R.Crim.P. 907 notice notifying Brown that the issues raised in his petition

were without merit. By order entered June 13, 2022, the PCRA court denied

Brown’s petition. This appeal followed. Both Brown and the PCRA court have

complied with Pa.R.A.P. 1925.

Brown raises the following two issues on appeal:

1. Whether the [PCRA] court abused its discretion in

denying [his] PCRA claim that his no-contest plea was

not knowingly, intelligently, or voluntarily entered due to

the ineffectiveness of [plea] counsel.

2. Whether the [PCRA] court abused its discretion by

denying [his] Motion to Withdraw his [no-contest] plea

and proceed to trial due to the ineffective assistance of

counsel.

Brown’s Brief at 2.

This Court’s standard of review for an order dismissing a PCRA petition

is to ascertain whether the order “is supported by the evidence of record and

is free of legal error. The PCRA court’s findings will not be disturbed unless

there is no support for the findings in the certified record.” Commonwealth

v. Barndt, 74 A.3d 185, 191-92 (Pa. Super. 2013) (citations omitted).

In both of his issues, Brown asserts the ineffectiveness of plea counsel.

To obtain relief under the PCRA premised on a claim that counsel was

ineffective, a petitioner must establish by a preponderance of the evidence

that counsel’s ineffectiveness so undermined the truth determining process

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that no reliable adjudication of guilt or innocence could have taken place.

Commonwealth v. Johnson, 966 A.2d 523, 532 (Pa. 2009). “Generally,

counsel’s performance is presumed to be constitutionally adequate, and

counsel will only be deemed ineffective upon a sufficient showing by the

petitioner.” Id. This requires the petitioner to demonstrate that: (1) the

underlying claim is of arguable merit; (2) counsel had no reasonable strategic

basis for his or her action or inaction; and (3) the petitioner was prejudiced

by counsel's act or omission. Id. at 533. A finding of "prejudice" requires the

petitioner to show "that there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different."

Id. A failure to satisfy any prong of the test for ineffectiveness requires

rejection of the claim. Commonwealth v. Martin, 5 A.3d 177, 183 (Pa.

2010).

In his first issue, Brown asserts that he repeatedly requested that plea

counsel file various pre-trial motions and that he proceed to a jury trial, but

plea counsel “insisted that he plead guilty to the charges.” Brown’s Brief at

10. According to Brown, because of plea counsel’s inaction and her insistence,

he “lost faith in his counsel and felt like he had no [choice] but to plead [no-

contest] due to the ineffectiveness of his representation.” Id.

Regarding claims of ineffectiveness in relation to the entry of plea, we

note:

Ineffective assistance of counsel claims arising from the plea

bargaining-process are eligible for PCRA review. Allegations

of ineffectiveness in connection with the entry of a guilty

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plea will serve as a basis for relief only if the ineffectiveness

caused the defendant to enter into 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.

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 the entry of an

unknowing, involuntary, or unintelligent plea. This standard

is equivalent to the “manifest injustice” standard applicable

to all post-sentence motions to withdraw a guilty plea.

Commonwealth v. Kelley, 136 A.3d 1007, 1012-13 (Pa. Super. 2016)

(citations omitted).

Moreover, “[o]ur law presumes that a defendant who enters a guilty

plea was aware of what he was doing,” and “[h]e bears the burden of proving

otherwise.” Commonwealth v. Pollard, 832 A.2d 517, 523 (Pa. Super.

2003) (citations omitted).

The longstanding rule of Pennsylvania law is that a

defendant may not challenge his guilty plea by asserting that

he lied while under oath, even if he avers that counsel

induced the lies. A person who elects to plead guilty is bound

by the statements he makes in open court while under oath

and may not later assert grounds for withdrawing the plea

which contradict the statements he made at his plea colloquy.

Id. On appeal, this Court evaluates the adequacy of the plea colloquy and

the voluntariness of the resulting plea by looking at the totality of the

circumstances. Commonwealth v. Yeomans, 24 A.3d 1044, 1047 (Pa.

Super. 2011).

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In its Rule 907 notice, the PCRA court provided a detailed summary of

the testimony from plea counsel and Brown’s testimony from the evidentiary

hearing with regard to the filing of pre-trial motions, as well as a post-sentence

motion to withdraw his no-contest plea and a subsequent appeal. The court

explained:

[Plea counsel] testified that she recalled visiting [Brown]

while he was incarcerated and reviewing [Brown’s] case with him.

[Plea counsel] stated that she was prepared to go to trial. She

testified that she did not file a motion to suppress because the

search of [Brown’s] cell phone was constitutional. [Plea counsel]

also testified that she reviewed the Commonwealth’s plea offer

with [Brown] and that no one forced [Brown] to plead no contest.

She testified that prior to the evidentiary hearing, she reviewed a

series of correspondences she had with [Brown]. [The PCRA

court] ordered [plea counsel] to provide the letters she had

received from [Brown] as well as the letters she had sent to [him].

At the evidentiary hearing, [Brown] testified that he was

forced to plead guilty and that he lied under oath when asked if

he was entering his plea voluntarily. [Brown] explained that he

told [plea counsel] numerous times that he wanted to proceed to

trial. [Brown] also stated that he sent [plea counsel] letters in

which he requested that she file a motion to withdraw his plea and

file an appeal.

[Plea counsel] subsequently provided [the PCRA court] the

documents she was ordered to provide. In the first letter, dated

March 13, 2019, [plea counsel] requested permission from the

warden to bring her computer and flash drive into the jail where

[Brown] was being held to review a video with him. [Plea counsel]

then received a letter from [Brown], dated July 8, 2019, in which

he discussed the hearing [the trial court] held for the

Commonwealth’s motion to admit evidence of [Brown’s] other

crimes, wrongs, or acts. [Brown] also indicated his intention to

file a Rule 600 motion.

[Plea counsel] subsequently sent [Brown] a letter, dated

July 25, 2019, in which she clarified that many of his pre-trial

delays were the result of continuances requested by defense

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counsel and that these delays would be excluded for purposes of

evaluating a Rule 600 motion. [Plea counsel] also reiterated what

she had explained during her prior visit with [Brown] on June 18,

2019, which was that Rule 600 for nominal bail would be viable

but that it was highly unlikely [Brown] would be released.

[Brown] sent another letter, dated July 20, 2019, in which

he included a Rule 600 motion and requested [plea counsel] to file

it. [Brown] also stated that he would not take any deals and that

[plea counsel] could help the jury see the truth by “putting some

of [her] best lies in motion” and “make a great name” for herself.

[Plea counsel] responded with a letter, dated August 6, 2019, in

which she stated she would file the Rule 600 motion despite the

risks associated with it. [Plea counsel] also clarified that she

would work to achieve the best outcome on [Brown’s] case

without being party to any false or deceptive strategies. [Plea

counsel] also provide[d] documentation indicating that she visited

[Brown] on August 20, 2019, while he was incarcerated, in which

she conveyed the Commonwealth’s offer to [Brown] and reviewed

discovery and trial strategy with him.

Rule 907 Notice, 5/5/22, at 3-5 (formatting adjusted).

Here, the PCRA court found no merit to Brown’s claim that plea counsel’s

ineffectiveness caused him to enter an involuntary plea. The court explained:

Here, both oral colloquies conducted by [the trial court] with

[Brown] and the written colloquy signed by [Brown] clearly

established the voluntariness of [Brown’s] plea. [He] was allowed

time overnight to consider whether to accept the Commonwealth’s

plea offer. [Brown’s] testimony at the evidentiary hearing that he

lied, contradicting his previous statements made while under oath,

is not a valid ground for the withdrawal of his plea. As [the court]

stated in denying [Brown] relief: “What I find is that [Brown]

regrets it, but it is not a basis for a withdrawal of his plea. I think

it was knowing, it was voluntary, it was done intelligently with

counsel and I do not believe that he was forced to do this.”

Accordingly, [Brown’s] contention that he felt pressured into

accepting the plea deal offered by the Commonwealth due to

[plea] counsel’s refusal to file pretrial motions is without merit.

Not only did the failure to file such motions result in no prejudice

to [Brown], but [Brown] is also bound by the statements he made

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during his plea colloquy and may not assert grounds for

withdrawing the plea that contradict those statements. The

record clearly establishes that [the court] performed two (2) oral

colloquies with [Brown] on two (2) different days which ensured

that [he] was knowingly, voluntarily, and intelligently entering a

plea of no contest. [Brown’s] first ineffective assistance of counsel

claim is therefore without merit and no relief is due.

PCRA Court Opinion, 11/8/22, at 12-13 (citation omitted). Our review of the

record supports the PCRA court’s conclusion.

In arguing that the PCRA court abused its discretion in denying post-

conviction relief on this issue, Brown’s entire argument consists of the

following single paragraph:

In the case at bar, [Brown] asserted his innocence and

testified before [the court] at the PCRA hearing that the

ineffectiveness of his [plea] counsel caused him to enter an

involuntary and unknowing plea. [Brown] further averred in his

Certification that he was innocent of the charges, that he wanted

[plea counsel] to file and litigate a Motion to Dismiss the case

based on a Speedy Trial Violation under Rule 600 and a Motion to

Suppress the Search Warrant of his cell phone.

Brown’s Brief at 13.1

Despite the brevity of Brown’s argument, we note that he does not

mention plea counsel’s testimony at the evidentiary hearing explaining her

actions or inactions with regard to such pre-trial motions. As noted above,

plea counsel explained her correspondence with Brown regarding a Rule 600

____________________________________________

1 Contrary to the requirements of Pennsylvania Rules of Appellate Procedure,

Brown presented his argument as to both issues in a single paragraph. See

generally, Pa.R.A.P. 2119(a). We cite only that portion of the paragraph

related to Brown’s first issue.

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motion for Brown’s release on nominal bail, and the PCRA court concluded that

he was not prejudiced because the only relief he could have had was a short

period of release from custody prior to trial. PCRA Court Opinion, 11/8/22, at

9. As to the suppression motion, the PCRA court first found that there was no

indication in the record that Brown asked [counsel] to file such a motion, and

the court credited plea counsel’s testimony that, believing the warrant was

valid, she had no reasonable basis to file the motion. Id. at 10.

As a matter of credibility, the PCRA court believed trial counsel’s version

of the contested facts. We cannot disturb this determination. See

Commonwealth v. Harmon, 738 A.2d 1023, 1025 (Pa. Super. 1999)

(explaining that when a PCRA court’s determination of credibility is supported

by the record, it cannot be disturbed on appeal). Thus, Brown’s first claim of

ineffectiveness fails.

In his second issue, Brown asserts that the PCRA court erred in denying

his motion to withdraw his no-contest plea, so that he could proceed to trial,

due to the ineffective assistance of counsel.2

“[A]n unjustified failure to file a direct appeal upon request is prejudice

per se and . . . a defendant does not have to demonstrate his innocence or

____________________________________________

2 Brown’s issue actually asserts that he entered a guilty plea. We note that

“in terms of its effect upon a case, a plea of [no-contest] is treated the same

as a guilty plea.” Commonwealth v. Prieto, 206 A.3d 529, 533 (Pa. Super.

2019) (citation omitted).

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the merits of the issue he would have pursued on appeal to be entitled to

relief.” Commonwealth v. Spencer, 892 A.2d 840, 842 (Pa. Super. 2006).

In addition, “no discussion of the potential merit of any claims is necessary.”

Commonwealth v. Markowitz, 32 A.3d 706, 715 (Pa. Super. 2011).

Generally, if counsel ignores a defendant’s request to file a

direct appeal, the defendant is entitled to have his appellate rights

restored. Commonwealth v. Lantzy, 558 Pa. 214, 736 A.2d 564

(1999). . . . However, such relief is appropriate only where the

petitioner pleads and proves that a timely appeal was in fact

requested and that counsel ignored that request.

Commonwealth v. Harmon, 738 A.2d 1023, 1024 (Pa. Super.

1999). A mere allegation will not suffice to prove that counsel

ignored a petitioner’s request to file an appeal. Id.

Spencer, 892 A.2d at 842.

Here, the PCRA court summarized the pertinent testimony from the

evidentiary hearing and concluded that Brown did not meet this burden:

[Brown] testified that he sent two (2) letters to [plea

counsel], the first requesting her to file a motion to withdraw the

[no-contest] plea and the second requesting her to file a direct

appeal. [He] presented no evidence other than his own word that

the letters were ever sent. [Brown] also admitted that he made

no further attempt to contact [plea counsel] even though he had

not received a response regarding either of the letters he allegedly

sent to her.

[Plea counsel] testified that she had no reason to believe

that [Brown] wanted to file post-sentence motions or a direct

appeal because he never contacted her verbally or in writing after

he was sentenced. [Plea counsel] stated that she had reviewed

the file she kept for [Brown] and found in it his discovery, letters

she had received from him, and letters she had sent him. None

of these letters indicated that [Brown] wished to withdraw his plea

or file a notice of appeal. [Plea counsel] testified that had she

received any such request from [Brown], she would have filed the

appropriate document.

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[The court] found [plea counsel’s] testimony to be credible

and [Brown’s] testimony to not be. Accordingly, [the court]

concluded that [Brown] had not requested [plea counsel to] file

either a post-sentence motion or notice of appeal because he

could not present evidence indicating that he had done so. As

[Brown] failed to prove that he ever notified [plea counsel] of his

intentions, even when given the opportunity to do so, [plea

counsel] cannot be found ineffective for failing to do something

she was not requested to do. [Brown’s] petition thus sets forth a

baseless and unmeritorious allegation of ineffectiveness of counsel

without support from the record. [Brown’s] second ineffective

assistance of counsel claim is therefore without merit and no relief

is due.

PCRA Court Opinion, 11/8/22, at 15 (citations omitted).

Our review of the record supports the PCRA court’s conclusion. Once

again, we note that we cannot disturb the court’s credibility determination.

Harmon, supra. Brown’s argument to the contrary consists of the remaining

portion of the single paragraph:

[Brown] also wanted [plea counsel] to file post-sentence

motions to withdraw his no-contest plea. Exhibit H. [Plea

counsel] never filed any of the requested pre-trial or post-

sentence motions or appeals. As a result, [Brown] lost faith in

[plea counsel] and his [no-contest] plea was therefore

involuntarily entered and a trial should be gra[n]ted.

Brown’s Brief at 13.

Exhibit H of Brown’s reproduced record consists of a copy of his second

supplemental PCRA petition which attached his certification stating that he

asked plea counsel to file a post-sentence motion and an appeal. The

certification did not include copies of any letters Brown allegedly sent to plea

counsel. As noted above, the PCRA court found his testimony, which was

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consistent with the certification, not worthy of belief. Thus, Brown’s second

claim of ineffectiveness fails.

In sum, given the PCRA court’s credibility determinations, the PCRA

court correctly determined that Brown’s ineffectiveness claims lacked merit.

We therefore affirm the order denying him post-conviction relief.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/21/2023

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