J-S48041-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :      IN THE SUPERIOR COURT OF
                                          :            PENNSYLVANIA
           v.                             :
                                          :
DOUGLAS BRUNSON,                          :
                                          :
                  Appellant               :            No. 93 WDA 2016

                  Appeal from the PCRA Order January 7, 2016
              in the Court of Common Pleas of Allegheny County,
              Criminal Division, No(s): CP-02-CR-0008333-2009

BEFORE: BOWES, DUBOW and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                       FILED AUGUST 16, 2016

     Douglas Brunson (“Brunson”) appeals from the Order dismissing his

Petition for relief filed pursuant to the Post Conviction Relief Act (“PCRA”).

See 42 Pa.C.S.A. §§ 9541-9546. We affirm.

      In December 2009, Brunson entered guilty pleas in four separate

cases (Nos. 200908333, 200907863, 200911431, and 200814294). As part

of the plea agreement, the Commonwealth agreed that it would make no

recommendation as to a specific sentence.          On March 3, 2010, the

Honorable Jill Rangos (“Judge Rangos”) sentenced Brunson to prison terms

of 85-170 months for the case at 200907863, 90-180 months for the case at

200908333, 18-36 months for the case at 200814294, and 30-60 months

for the case at 200911431.        The sentences imposed for the cases at

200907863 and 200908333 were set to run consecutively, with the lesser

sentences running concurrently.
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     This Court affirmed the judgment of sentence. See Commonwealth

v. Brunson, 34 A.3d 225 (Pa. Super. 2011) (unpublished memorandum).

On October 12, 2012, Brunson filed a pro se PCRA Petition. The PCRA court

appointed Brunson counsel, who filed an Amended PCRA Petition. Brunson

argued that the trial court had applied incorrect Offense Gravity Scores

(“OGS”) to the charges at 200908333 and 200907863, resulting in

incorrectly enhanced prison terms.    The Commonwealth conceded that

Brunson had been sentenced incorrectly at 200908333 and requested a

resentencing hearing, but maintained that the sentence imposed at

200907863 was correct.

      At the resentencing hearing, the Commonwealth requested a standard

range sentence. Thereafter, Judge Rangos revoked the original sentence of

90-180 months in prison and imposed a revised sentence of 65-130 months.

Like the original sentence, the revised sentence was to run consecutive to

the sentence at case No. 200907863. On October 16, 2013, Judge Rangos

dismissed Brunson’s PCRA Petition as it related to case No. 200907863;

Judge Rangos reinstated Brunson’s post-sentence and appellate rights in

relation to case No. 200908333.   Brunson filed a Post-Sentence Motion at

case No. 200908333, which was denied. Brunson filed a Notice of Appeal;

however, Brunson subsequently discontinued the appeal in February 2014.

     On March 25, 2014, Brunson filed a timely PCRA Petition in relation to

case Nos. 200908333 and 200907863, claiming that ADA Tomasic’s remarks



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at resentencing violated the plea agreement, and that Brunson’s counsel was

ineffective for failing to advise Brunson of his right to withdraw the guilty

plea.

        Judge Rangos filed a Notice of Intent to Dismiss and, eventually, an

Order dismissing the PCRA Petition on April 22, 2014. Due to a scrivener’s

error, however, Judge Rangos’s Notice of Intent to Dismiss and the dismissal

Order both incorrectly referenced only the case at No. 200907863.         On

December 1, 2014, Judge Rangos issued an Order amending the April 22,

2014 Order so as to dismiss the Petitions at both case Nos. 200908333 and

200907863. Brunson, pro se, appealed this Order. On August 7, 2015, this

Court    vacated   Judge   Rangos’s   December   1,   2014   Amended   Order,

concluding that Judge Rangos failed to file a proper Notice of Intent to

Dismiss. See Commonwealth v. Brunson, 131 A.3d 87 (Pa. Super. 2015)

(unpublished memorandum).

        On August 24, 2015, upon remand, Judge Rangos issued a Notice of

Intent to Dismiss Brunson’s Petition. On September 11, 2015, Brunson, pro

se, filed both an Application for Leave to Amend his PCRA Petition and a

Response to Judge Rangos’s Notice of Intent to Dismiss.        Judge Rangos

appointed Scott Coffey, Esquire, as Brunson’s counsel, who filed an amended

Response to Judge Rangos’s Notice of Intent to Dismiss.        On January 7,

2016, Judge Rangos dismissed the PCRA Petition.         Brunson then filed a

timely Notice of Appeal.



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      On appeal, Brunson raises the following question for our review:

      [] Did the [PCRA] court err in denying [Brunson’s] PCRA Petition
      since [Brunson’s] 12/17/09 plea agreement was violated during
      [Brunson’s]    9/23/13     resentencing   hearing,   when    the
      Commonwealth improperly argued for a specific sentence at the
      instant case, resulting in prejudice to [Brunson] since he
      received a lengthier, and consecutive rather than concurrent,
      sentence at the instant case due to the Commonwealth’s
      violation of the plea agreement; moreover, trial counsel was
      ineffective for failing to inform the trial court that the plea
      agreement had been violated, and for failing to inform [Brunson]
      that he had a right to withdraw his plea since the plea
      agreement had been violated?

Brief for Appellant at 3 (capitalization omitted).

      Our standard of review regarding a PCRA court’s dismissal of a PCRA

petition is whether the PCRA court’s decision is supported by evidence of

record and is free of legal error. Commonwealth v. Garcia, 23 A.3d 1059,

1061 (Pa. Super. 2011). “We will not disturb the findings of the PCRA court

if they are supported by the record, even where the record could also

support a contrary holding.” Commonwealth v. Keaton, 82 A.3d 419, 426

(Pa. 2013).

      Brunson asserts that the PCRA court erred in dismissing his Petition

where his resentencing counsel, J. Richard Narvin, was ineffective for failing

to inform the trial court of the plea agreement violation. Brief for Appellant

at 9, 13. Brunson asserts that the resentencing court would have had the

“option of imposing an even lower sentence, and running it concurrently” if

the Commonwealth “had not pushed for a specific sentence” and that as a

result, Brunson was “prejudiced.” Id. at 13; see also id. at 9, 12. Further,


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Brunson asserts that the resentencing court should have allowed him to

withdraw his guilty plea and that it erred by not doing so. Id. at 13-14.

      To succeed on an ineffectiveness claim, Brunson must demonstrate by

a preponderance of evidence that “(1) [the] underlying claim is of arguable

merit; (2) the particular course of conduct pursued by counsel did not have

some reasonable basis designed to effectuate his interests; and (3) but for

counsel’s ineffectiveness, there is a reasonable probability that the outcome

of the proceedings would have been different.” Commonwealth v. Ali, 10

A.3d 282, 291 (Pa. 2010).       Counsel is presumed to be effective and the

burden is on the appellant to prove otherwise.              Commonwealth v.

Hannible, 30 A.3d 426, 439 (Pa. 2011). A failure to satisfy any prong of

the   test   for   ineffectiveness   will   require   rejection   of   the   claim.

Commonwealth v. Martin, 5 A.3d 177, 183 (Pa. 2010).

             A criminal defendant has the right to effective counsel
      during a plea process as well as during trial. The law does not
      require that appellant be pleased with the outcome of his
      decision to enter a plea of guilty. Instead, 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. The voluntariness of the plea
      depends on whether counsel’s advice was within the range of
      competence demanded of attorneys in criminal cases.
      Therefore, 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.

Commonwealth v. Bedell, 954 A.2d 1209, 1212 (Pa. Super. 2008)

(citations, quotation marks, and brackets omitted).



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      To withdraw a guilty plea where a sentence has already been imposed,

“a showing of prejudice on the order of manifest injustice is required before

withdrawal is properly justified.”    Commonwealth v. Muhammad, 794

A.2d 378, 383 (Pa. Super. 2002) (citations and quotation marks omitted).

“A plea rises to the level of manifest injustice when it was entered into

involuntarily, unknowingly, or unintelligently.” Id.

      To ensure a voluntary, knowing, and intelligent plea, the trial court

must inquire into the following six areas:

      (1) Does the defendant understand the nature of the charges to
      which he is pleading guilty?

      (2) Is there a factual basis for the plea?

      (3) Does the defendant understand that he has a right to trial by
      jury?

      (4) Does the defendant understand that he is presumed innocent
      until he is found guilty?

      (5) Is the defendant aware of the permissible ranges of
      sentences and/or fines for the offenses charged?

      (6) Is the defendant aware that the judge is not bound by the
      terms of any plea agreement tendered unless the judge accepts
      such agreement?

Commonwealth v. Young, 695 A.2d 414, 417 (Pa. Super. 1997); see also

Pa.R.Crim.P. 590, cmt. (stating that a written plea colloquy may supplement

an oral colloquy). “The determination of whether the defendant understood

the connotations of the plea and its consequences is made by an




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examination of the totality of the circumstances surrounding the plea.”

Young, 695 A.2d at 417 (citation omitted).

     Further,

     [a]ssuming the plea agreement is legally possible to fulfill, when
     the parties enter the plea agreement on the record, and the
     court accepts and approves the plea, then the parties and the
     court must abide by the terms of the agreement. Likewise,
     [t]here is an affirmative duty on the part of the prosecutor to
     honor any and all promises made in exchange for a defendant's
     plea. Our courts have demanded strict compliance with that
     duty in order to avoid any possible perversion of the plea
     bargaining system, evidencing the concern that a defendant
     might be coerced into a bargain or fraudulently induced to give
     up the very valued constitutional guarantees attendant the right
     to trial by jury.

            Although a defendant has no constitutional right to have
     an executory plea agreement specifically enforced, once a plea
     actually is entered, and was induced by a prosecutor’s promise
     to abstain from making a sentencing recommendation, that
     promise must be fulfilled. In determining whether a particular
     plea agreement has been breached, we look to what the parties
     to this plea agreement reasonably understood to be the terms of
     the agreement.

          Where the Commonwealth violates a term of the plea
     agreement, the defendant is entitled to receive the benefit of the
     bargain.

Commonwealth v. Anderson, 995 A.2d 1184, 1191 (Pa. Super. 2010)

(citations, quotation marks, brackets omitted).

     At the guilty plea colloquy,1 the Commonwealth noted that it would

“stand silent at the time of sentencing.”     N.T., 12/17/09, at 3.       Judge

Rangos asked whether there were any agreements between Brunson and the

1
 The record indicates that Brunson completed a written guilty plea colloquy;
however, the colloquy is not included in the record.

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Commonwealth besides the         Commonwealth’s stipulation and Brunson

responded “[n]o....” Id. at 3-4. Judge Rangos then explained the various

possible sentences and fines that she could impose upon Brunson in each of

his cases. Id. at 6-7.2 Brunson then answered “[y]es” when asked whether

he was “pleading guilty because [he] [was], in fact, guilty.” Id. at 8. Based

on the colloquy, Judge Rangos declared that Brunson had “made a knowing,

intelligent, and voluntary waiver of his right to trial” and accepted his plea.

Id.; see also Commonwealth v. Kelly, 5 A.3d 370, 382 n.11 (Pa. Super.

2010) (stating that “a defendant is bound by the statements he makes

during his plea colloquy[.]”) (citation omitted).

      At the resentencing hearing, Assistant District Attorney Kelly D.

Tomasic’s (“ADA Tomasic”) made recommendations to Judge Rangos

regarding Brunson’s new sentence:

            As [Brunson’s counsel] accurately summarized, at the first
      case, [No. 200908333], the Commonwealth indeed agrees that
      [Brunson] should be resentenced as the [sentencing] guideline
      form incorrectly stated that [Brunson] was being charged with
      robbery-inflict serious bodily injury. That should be and has
      been on the new guideline form changed to robbery-threaten
      serious bodily injury which, in fact, lowers his standard range.
      We just ask [the] Court to once again sentence [Brunson] within
      that standard range. We leave that particular number and range
      up to this Court.

                                      ***



2
  Brunson also indicated that he understood the nature of the charges he
was facing, the factual basis for his plea, the rights he was foregoing, and
that he is presumed innocent. N.T., 12/17/09, at 4-5, 8.

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             Now, we did concede relief that he should be resentenced
      on these cases, but we certainly do not find any reasons for this
      [c]ourt to go below that standard range into the mitigated, and
      we certainly believe that these sentences should run
      consecutive[ly].     There was a reason they were to run
      consecutive[ly] in the first place, and we ask this [c]ourt to look
      at that and look at its reasons that it placed on the record back
      in, I believe, 2010 of [Brunson’s] life of crime.

N.T., 9/23/13, at 7, 24.

      Thereafter, Judge Rangos stated the following:

      And [in relation to case No. 200908333], in light of the fact that
      the OGS was incorrect given the charge, which was threaten
      serious bodily injury as opposed to [inflict] serious bodily injury,
      and consistent with the intent of my original sentence, I did
      sentence him in the standard range on that sentence, I would
      today revoke that sentence of 90 to 180 [months] and re-impose
      a sentence of 65 to 130 [months] ... and that sentence and the
      other sentence at [case No. 200907863] continue[] to run
      consecutive[ly] to each other.

                                      ***

      [In relation to case No. 20098333], the original sentence of 90
      to 180 months, it is revoked in light of the change in the [OGS].
      The new standard range on that count is 60 to 72 months. In
      accordance with the intent of the original sentence and having
      considered all of the factors raised at the original sentencing
      hearing as well as today, I have re-imposed sentence of 65 to
      130 months. It will remain consecutive to the other sentence.

Id. at 27-29 (emphasis added).

      With regard to ADA Tomasic’s statements at the resentencing hearing,

Judge Rangos stated the following:

            [The] statement by [ADA Tomasic] had no effect on the
      ultimate outcome of [Brunson’s] case. The statements made by
      counsel are not evidence and this [c]ourt was not bound to
      accept a sentencing recommendation from either counsel.



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     Commonwealth v. Thuy, 623 A.2d 327, 333 (Pa. Super.
     1993).

            Instead, this [c]ourt, after reviewing the Pre-Sentence
     Report, sentenced [Brunson] in the standard range of the
     Sentencing Guidelines, as it did originally and as it intended to
     do previously. The initial plea with a sentence in the standard
     range was flawed in only one area. The [OGS] was erroneously
     inflated, which caused the [c]ourt to impose an inflated sentence
     believing the sentence to be in the standard range.            At
     resentencing, this [c]ourt used corrected Guidelines and
     [Brunson] received the standard range sentence he would have
     received initially had the [OGS] been accurately reported to this
     [c]ourt.

            Since the prosecutor’s statement had no effect on the
     validity of the plea, nor did it impact this [c]ourt’s sentence,
     counsel was not ineffective for failing to inform the [c]ourt that
     the plea agreement had been violated. Even if counsel had
     objected, this [c]ourt would not have imposed a different
     sentence.

PCRA Court Opinion, 3/23/16, at 4-5.

     While    ADA    Tomasic   recommended    a   sentence   for   Brunson   at

resentencing, Judge Rangos did not utilize the recommendation. See id. at

4.   Indeed, the trial court imposed a standard range sentence after

reviewing the pre-sentence investigation report, the sentencing guidelines,

and the correct OGS.    See id.; N.T., 9/23/13, at 7, 25, 27-28; see also

Commonwealth v. Baker, 72 A.3d 652, 663 (Pa. Super. 2013) (stating

that “[w]hen a sentencing court has reviewed a presentence investigation

report, we presume that the court properly considered and weighed all

relevant factors in fashioning the defendant’s sentence.”). The PCRA court’s

conclusion    that   Brunson   was   not   prejudiced   by   ADA     Tomasic’s



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recommendation has support in the record, thus we will not disturb it. See

Keaton, 82 A.3d at 426.

      As Brunson cannot demonstrate that “but for counsel’s ineffectiveness,

there is a reasonable probability that the outcome of the proceedings would

have been different,” his ineffectiveness claim must be rejected. See Ali, 10

A.3d at 291; see also Martin, 5 A.3d at 183. Further, the totality of the

circumstances indicates that Brunson entered into knowing, intelligent, and

voluntary plea agreement. Accordingly, the PCRA court properly dismissed

Brunson’s Petition.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/16/2016




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