J-S16008-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37



COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA


                       v.

BRIAN KEITH PHILLIPS

                            Appellant                  No. 464 WDA 2016


                 Appeal from the PCRA Order February 23, 2016
                 In the Court of Common Pleas of Greene County
               Criminal Division at No(s): CP-30-CR-0000422-2012




COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA

                       v.

BRIAN KEITH PHILLIPS

                            Appellant                  No. 465 WDA 2016


                 Appeal from the PCRA Order February 23, 2016
                 In the Court of Common Pleas of Greene County
               Criminal Division at No(s): CP-30-CR-0000447-2012


BEFORE: MOULTON, J., RANSOM, J., and PLATT, J.*

MEMORANDUM BY MOULTON, J.:                       FILED SEPTEMBER 05, 2017

____________________________________________


       *
           Retired Senior Judge assigned to the Superior Court.
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       Brian Kenneth Phillips appeals from the February 23, 2016 order

entered in the Greene County Court of Common Pleas denying his petitions

filed under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-46.1

We affirm.

       On December 3, 2013, Phillips pled guilty at dockets CP-30-CR-

0000422-2012 and docket CP-30-CR-0000447-2012. At docket CP-30-CR-

0000422-2012, he pled guilty to theft by unlawful taking, receiving stolen

property, criminal conspiracy to commit theft, recklessly endangering

another person, fleeing or attempting to elude a police officer, aggravated

assault by vehicle, driving under the influence of alcohol or a controlled

substance (“DUI”), and various summary offenses.2          At docket CP-30-CR-

0000447-2012, he pled guilty to DUI and various summary offenses.             On

February 13, 2014, the trial court sentenced Phillips to an aggregate term of

6 to 17 years’ imprisonment.3




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       1
           On May 2, 2016, this Court sua sponte consolidated Phillips’ appeals.
       2
       18 Pa.C.S. §§ 3921(a), 3925, 903, and 2705; 75 Pa.C.S. §§ 3733(a),
3732.1(a), and 3802(d)(1), respectively.
       3
        On March 21, 2014, in response to Phillip’s PCRA petition, the trial
court issued an amended order clarifying that the aggregate maximum
sentence was 17, not 18, years’ imprisonment. On February 23, 2016,
again in response to Phillips’ PCRA petition, the trial court amended the
sentencing order to change the classification of the offense of aggravated
assault by vehicle from a second-degree felony to a third-degree felony.



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       On March 10, 2014, Phillips filed a timely pro se PCRA petition.4 The

PCRA court appointed counsel, who filed an amended petition. On January

12, 2016, the PCRA court held an evidentiary hearing.                On February 23,

2016, the PCRA court denied the petition.            Phillips filed timely notices of

appeal.

       Phillips raises the following issue on appeal: “Did the PCRA court err in

dismissing [Phillips’] Petition where the record supported [Phillips’] claim of

ineffectiveness?” Phillips’ Br. at 6. Phillips maintains his trial counsel was

ineffective for causing him to enter unknowing, unwilling, and unintelligent

guilty pleas. He argues counsel “coerced him into entering an open plea on

the eve of trial with assurances that there would be a mental health

evaluation completed so the trial court would give [him] a mitigated

sentence.” Id. at 12. He also argues, based on trial counsel’s testimony at

the PCRA hearing, that his guilty pleas were involuntary because counsel

informed Phillips that he was acting as standby counsel.

       Our standard of review from the denial of post-conviction relief “is

limited to examining whether the PCRA court’s determination is supported by

the   evidence     of   record     and    whether   it   is   free   of   legal   error.”

Commonwealth v. Ousley, 21 A.3d 1238, 1242 (Pa.Super. 2011).



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       4
       The PCRA petition, amended petition, and the orders and hearings
addressing the petition, were filed at both dockets.



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      To prevail on an ineffective assistance of counsel claim, the petitioner

must establish: “(1) his underlying claim is of arguable merit; (2) counsel

had no reasonable basis for his action or inaction; and (3) the petitioner

suffered actual prejudice as a result.” Commonwealth v. Spotz, 84 A.3d

294, 311 (Pa. 2014). To establish the prejudice prong where an appellant

has entered a guilty plea, “the appellant must demonstrate ‘it is reasonably

probable that, but for counsel’s errors, he would not have pleaded guilty and

would have gone to trial.’” Commonwealth v. Timchak, 69 A.3d 765, 770

(Pa.Super. 2013) (quoting Commonwealth v. Rathfon, 899 A.2d 365, 370

(Pa.Super. 2006)). “[C]ounsel is presumed to be effective and the burden of

demonstrating ineffectiveness rests on appellant.” Ousley, 21 A.3d at 1244

(quoting Commonwealth v. Rivera, 10 A.3d 1276, 1279 (Pa.Super.

2010)). “The failure to prove any one of the three [ineffectiveness] prongs

results in the failure of petitioner’s claim.” Id. (quoting Rivera, 10 A.3d at

1279).

      Phillips claims he would not have pled guilty if counsel had not told

him he would receive a mental health evaluation, which would have been

submitted to the trial court as mitigating evidence.       At the guilty plea

hearing, Phillips stated that he was pleading guilty of his own free will, that

he was not forced to plead guilty, and that he received no threats or




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promises in exchange for his pleas.              N.T., 12/3/13, at 1.5   He further

testified that he understood that the trial court had discretion over the

sentence imposed. Id. at 15. At no point did Phillips or his counsel mention

a mental health evaluation.6 In addition, the PCRA court credited the PCRA

hearing testimony of trial counsel, noting:

           [Trial counsel] testified that he has never in his career
           asked for a mental health evaluation prior to sentence and,
           consistent with that practice, did not do so in this case.
           Further, he did not [rec]commend one to [Phillips].

PCRA Ct. Op., 2/24/16, at 7 (unpaginated) (“PCRA Op.”).

       We conclude that the PCRA court did not err in rejecting Phillips’

ineffective assistance of counsel claim.         The record fully supports the trial

court’s conclusion that trial counsel did not inform Phillips that he would

receive a mental health evaluation. Accordingly, this claim is without merit.




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       5
       He also signed a written guilty plea colloquy, which included the
same statements.
       6
         Phillips’ counsel questioned Phillips about his mental health
treatment, including treatment he received while at Washington Hospital.
N.T., 12/3/13, at 8-9. Phillips stated he was not in treatment at the time of
the plea hearing, but that he was on medication. Id. at 9-10. The assistant
district attorney and Phillips’ counsel both mentioned a pre-sentence
investigation, id. at 3, 11, and the assistant district attorney mentioned a
drug and alcohol evaluation, id. at 3.




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       In his appellate brief, Phillips also argues that his pleas were

involuntary because trial counsel believed he was standby counsel for

Phillips. Phillips concludes, based on trial counsel’s testimony,7 that:

           Trial counsel explained to [Phillips] that he no longer
           represented him as counsel, and . . . [Phillips] would be
           required to represent himself the next day in trial. Faced
           with no other option, [Phillips] entered a guilty plea.

Phillip’s Br. at 16.    Because Phillips raised this claim for the first time on

appeal, he has waived it.8 See Pa.R.A.P. 302(a) (“Issues not raised in the

lower court are waived and cannot be raised for the first time on appeal.”).

       Further, even if he had not waived the claim, we would conclude that it

lacks merit. Phillips did not claim in his PCRA petition, in his amended PCRA

petition, or at the PCRA hearing, that he pled guilty because trial counsel

told him that he was standby counsel and that Phillips would be trying the


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       7
       At the PCRA hearing, Phillips’ trial counsel testified that he was
standby counsel for Phillips. N.T., 1/12/16, at 19.
       8
        At the PCRA hearing, following trial counsel’s testimony, Phillips’
PCRA counsel noted that whether counsel was standby counsel affected the
applicable standard for ineffectiveness claims. N.T.,1/12/16, at 34, 57; see
Commonwealth v. Blakeney, 108 A.3d 739, 756 (Pa. 2014) (noting that
“a defendant who chooses to represent himself cannot obtain post-conviction
relief by raising a claim of his own ineffectiveness or that of standby
counsel”). The PCRA court concluded that “[i]n reviewing the guilty plea
proceeding and colloquy, we conclude that [trial counsel] (even though he
clearly believed he was standby counsel) performed at a level and with a
depth of inquiry which would represent effective representation by any
counsel, standby or appointed.” PCRA Op. at 8.




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case pro se.9 Further, at the guilty plea hearing, trial counsel participated in

the hearing as counsel and conducted a thorough colloquy of Phillips.

Although trial counsel testified at the PCRA hearing that he believed he was

standby counsel at the time of the guilty plea, it is clear from the guilty plea

transcript that he acted as counsel. Further, there is no evidence to support

the claim, made for the first time on appeal, that Phillips pled guilty because

his trial counsel told him he would be acting as standby counsel.

       Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/5/2017




____________________________________________


       9
        On cross-examination, when asked whether his trial counsel was
acting as standby counsel at the guilty plea hearing, Phillips stated: “I can’t
even remember. I remember when I wanted to pick a jury the judge
referred to him as standby counsel.” N.T., 1/12/16, at 14.



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