J. S93009/16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA               :     IN THE SUPERIOR COURT OF
                                           :          PENNSYLVANIA
                                           :
                    V.                     :
                                           :
BRANDON A. NIXON,                          :
                                           :
                         Appellant         :     No. 1174 EDA 2016
                                           :

                  Appeal from the PCRA Order March 23, 2016
                In the Court of Common Pleas of Chester County
              Criminal Division at No(s): CP-15-CR-0000509-2011

BEFORE: DUBOW, SOLANO AND PLATT*, JJ.

MEMORANDUM BY DUBOW, J.:                             FILED MARCH 15, 2017

        Appellant, Brandon A. Nixon, appeals from the March 23, 2016 Order

entered in the Philadelphia County Court of Common Pleas denying his first

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

§§ 9541-9546.      We affirm on the basis of the PCRA court’s June 6, 2016

Opinion.

        The relevant facts and procedural history are as follows. In September

2008, Appellant and his co-conspirator entered a private residence in the

middle of the night through a window, struck a female resident in the head

with a gun, pushed her into the dining room table that shattered, and then

threw her infant son at her.         When her brother came to investigate,


*
    Retired Senior Judge Assigned to the Superior Court.
J. S93009/16


Appellant struck him in the head several times with a gun and pushed him

down the basement stairs, causing him to suffer severe injuries, including a

broken      jaw   and   hemorrhaging.     After   a   long   investigation,   the

Commonwealth obtained DNA evidence linking Appellant to the violent home

invasion and on March 10, 2011, the Commonwealth charged Appellant with

numerous crimes.

      During pre-trial negotiations, the Commonwealth made an initial plea

offer to Appellant of six (6) to twelve (12) years in prison, which Appellant

rejected.    Appellant believed that he should not serve more than two (2)

years in prison because he lacked a significant criminal history.             The

Commonwealth refused to offer less.

      On December 15, 2011, Appellant entered an open guilty plea to

Conspiracy to Commit Burglary, Burglary, and two counts of Robbery.1 In

exchange for Appellant’s plea, the Commonwealth agreed to waive all

mandatory minimum sentences and sentencing enhancements, provided

that Appellant met with Detectives to provide additional information about

how the crimes occurred.

      After the plea was entered but before sentencing, Appellant’s counsel,

Steve Jarmon, Esq. (“Attorney Jarmon”), reached out to the Commonwealth

to inquire what they would be recommending at the time of Appellant’s


1
  18 Pa.C.S. § 903(a); 18 Pa.C.S. § 3502(a); 18 Pa.C.S. § 3701(a)(1)(i) and
(ii), respectively.



                                        -2-
J. S93009/16


sentencing hearing.      N.T. PCRA Hearing, 6/19/15, at 28-29.         Assistant

District Attorney John Pavloff, Esq. (“ADA Pavloff”), who represented the

Commonwealth during the plea hearing, told Attorney Jarmon, “I’ll stick with

my plea offer, six years.” Id. at 29.

      Prior to sentencing, Appellant met with Detectives and failed to provide

any information relating to the crimes. Appellant indicated that he was high

on drugs during the crimes and did not remember anything.

      At sentencing, unsatisfied with Appellant’s proffer to Detectives, the

Commonwealth recommended that the court sentence Appellant to eleven

(11) to twenty-two (22) years’ incarceration, a higher recommendation than

the initial plea offer, but did not seek any mandatory minimum sentences or

sentencing enhancements.2

      On March 22, 2012, the court sentenced Appellant to an aggregate

term of nine (9) to twenty (20) years’ incarceration. Appellant timely filed a

Post-Sentence Motion on March 26, 2012, which the court denied on August

17, 2012, after an evidentiary hearing.

      On September 13, 2012, Appellant filed a direct appeal and this Court

affirmed   Appellant’s    Judgment      of    Sentence   on   July   30,   2013.




2
  Deputy District Attorney Ronald C. Yen, Esq., ADA Pavloff’s supervisor,
represented the Commonwealth at sentencing as ADA Pavloff’s employment
with the Chester County District Attorney’s Office had been terminated.




                                        -3-
J. S93009/16


Commonwealth v. Nixon, No. 2563 EDA 2012 (Pa. Super. filed July 30,

2013) (unpublished memorandum).

      On August 27, 2014, Appellant filed a timely and counseled PCRA

Petition. On October 23, 2014, the PCRA court ordered Appellant to file an

Amended PCRA Petition, which Appellant filed on March 6, 2015, after the

PCRA court granted several extensions. The PCRA court held an evidentiary

hearing on Appellant’s PCRA Petition on June 19, 2015 and February 11,

2016. On March 23, 2016, the PCRA court denied and dismissed Appellant’s

PCRA Petition.

      Appellant timely appealed.       Both Appellant and the PCRA court

complied with Pa.R.A.P. 1925(b).

      Appellant presents the following issue for our review: “Whether the

[t]rial [c]ourt erred by denying Appellant’s [PCRA Petition] where Appellant’s

[t]rial [c]ounsel was ineffective for failing to sufficiently advise Appellant of

the risks associated with an open guilty plea, rendering that plea involuntary

and unknowing?” Appellant’s Brief at 4.

      We review the denial of a PCRA Petition to determine whether the

record supports the PCRA court’s findings and whether its Order is otherwise

free of legal error.   Commonwealth v. Fears, 86 A.3d 795, 803 (Pa.

2014). This Court grants great deference to the findings of the PCRA court if

they are supported by the record. Commonwealth v. Boyd, 923 A.2d 513,

515 (Pa. Super. 2007). We give no such deference, however, to the court’s



                                      -4-
J. S93009/16


legal conclusions.    Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa.

Super. 2012).

      To be eligible for relief pursuant to the PCRA, Appellant must establish,

inter alia, that his conviction or sentence resulted from one or more of the

enumerated errors or defects found in 42 Pa.C.S. § 9543(a)(2). Appellant

must also establish that the issues raised in the PCRA petition have not been

previously litigated or waived. 42 Pa.C.S. § 9543(a)(3).

      In the instant case, Appellant avers that plea counsel was ineffective.

See Appellant’s Brief at 4; 42 Pa.C.S. § 9543(a)(2)(ii).        This claim lacks

merit.

      The   law   presumes    counsel    has   rendered    effective   assistance.

Commonwealth v. Rivera, 10 A.3d 1276, 1279 (Pa. Super. 2010).                 The

burden of demonstrating ineffectiveness rests on Appellant. Id. To satisfy

this burden, Appellant must plead and prove by a preponderance of the

evidence that: “(1) his 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 challenged proceeding would have been different.” Commonwealth

v. Fulton, 830 A.2d 567, 572 (Pa. 2003). Failure to satisfy any prong of the

test will result in rejection of the appellant’s ineffective assistance of counsel

claim. Commonwealth v. Jones, 811 A.2d 994, 1002 (Pa. 2002). Further,



                                      -5-
J. S93009/16


“[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 [A]ppellant

to enter an involuntary or unknowing plea.”          Fears, supra at 806-07

(citation omitted).

       The Honorable Anthony A. Sarcione, sitting as both the sentencing

court and the PCRA court, has authored a comprehensive, thorough, and

well-reasoned Opinion, citing to the record and relevant case law in

addressing Appellant’s ineffectiveness claim. The record supports the PCRA

court’s findings and its Order is otherwise free of legal error. We affirm on

the basis of the PCRA court’s June 8, 2016 Opinion which concluded that the

underlying claim is without merit because: (1) after Appellant rejected the

Commonwealth’s negotiated plea offer, Attorney Jarmon’s advice to tender

an open plea was a reasonable one designed to effectuate Appellant’s

interests; (2) Attorney Jarmon testified credibly that he informed Appellant

about the risks of entering an open guilty plea, specifically that the

Commonwealth could recommend a sentence in excess of the original offer

and that the sentencing court could order a sentence in excess of the

original offer; (3) Appellant acknowledged on the record that he understood

what an open plea was; (4) Appellant acknowledged on the record that he

had “no idea” what the sentence was going to be; (5) Appellant

acknowledged on the record that he understood the maximum penalty for

each   offense   was   twenty   (20)    years’   incarceration;   (6)   Appellant



                                       -6-
J. S93009/16


acknowledged on the record that the sentencing court could deviate up or

down from the sentencing guidelines as long as it stayed within the statutory

maximum; (7) Appellant was adequately apprised by both plea counsel and

the sentencing court of the court’s sentencing discretion and ability to

impose a term in excess of that recommended by the Commonwealth; and

(8) the record demonstrates that Appellant’s plea was knowing, voluntary,

and intelligent. See PCRA Court Opinion, 6/8/16, at 10-14.

      The parties are instructed to attach a copy of the PCRA court’s June 6,

2016 Opinion to all future filings.

      Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/15/2017




                                      -7-
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                                                                                            r:: ,., - . FD
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s:\admin\sarcione\Nixon     Brandon   151 PCRA 1925a.docx

                                                                                           . II.IN   o u 2om
                                                                                     ~LIC            DEF~NC::R
COMMONWEAL TH OF PENNSYLVANIA                               : IN THE COURT OF COMMON PLEAS

                      vs.                                   : CHESTER COUNTY, PENNSYLVANIA

BR.ANDON NIXON                                              : NO. 15-CR~0000509-2011

                                                            : CRIMINAL ACTION-PCRA

Nicholas J. Casenta, Jr., Esquire, Chief Deputy District Attorney, for the Commonwealth
Ellen B. Koopman, Esquire, for the Defendant

                               OP I N ION        SUR R U L E 1 9 2 5 (a)

                 Before this Honorable           reviewing     Court is Defendant            Brandon Nixon's

counseled appeal from our denial of his first counseled PCRA Petition, which was file

August 27, 2014.1           We issued our Order denying Defendant's Petition on March 23

2016.2 Defendant filed his Notice of Appeal on April 15, 2016. Thus, Defendant's appea

is timely.   See Pa. R.A.P. 903(a)("Except as otherwise prescribed by this rule, the noticJ

of appeal required by Rule 902 (manner of taking appeal) shall be filed within 30 day

after the entry of the order from which the appeal is taken.").

                 On March 10, 2011 the Commonwealth                       filed an Information charging

Defendant      with Criminal Conspiracy            to Commit       Burglary (18 Pa. C.S.A. §§ 9031

3502)(Count l); Burglary (18 Pa. C.S.A. § 3502)(Count JI); Possession of an Instrument o

Crime (18 Pa. C.S.A § 907{a))(Count 111); Criminal Attempt to Commit Murder of the Firs

Degree (18 Pa. C.S.A. §§ 901, 1102(c), and 2502(a))(Count                       IV); Aggravated Assault,


' Defendant was rep,esented by privatelv-retained attorney John J. Duffy, Esquire during the PCRA Petition
hearing process. For purposes of this PCRA appeal, Defendant has obtained the representation ot new counsel
Assistant Chester County Public Defender Ellen B. Koopman, Esquire.
                                                                                                               J
2
 The delay between the filing of Defendant's first PCRA Petition ln 2014 and our resolution of Defendant's PCRA
Petition in 2016 was occasioned by considerable serious health problems on the part of his then-counsel Mr. Duffyf
Many defense continuances were requested and granted to accommodate Mr. Duffy's medical needs. (See PCRA
Hearing Transcript, 2/11/16, N.T. 3).
s;\adrnin\sarcione\Nixon   Brandon 151 PCRA 1925a.docx




Causing Serious Bodily Injury (18 Pa. C.SA § 2702(a)(1))(Count V); Aggravatei

Assault-Attempting to Cause Serious Bodily Injury (18 Pa. C.S.A. § 2702(a)(1))(Count

VI); Simple Assault-Causing            Bodily Injury (18 Pa. C.S.A. § 2701 (a)(1))(Count VII)

Recklessly Endangering Another Person (18 Pa. C.S.A. § 2705)(Count VIII); Recklessly

Endangering Another Person (18 Pa. C.SA § 2705)(Count IX); Robbery-lnflictin1

Serious Bodily Injury Upon Another in the Course of Committing a Theft (18 Pa. C.S.A.         l
3701 (a)(1 )(i))(Count X); Robbery-Threatening Another With, or Intentionally Puttinl

Another in Fear of, Immediate Serious Bodily Injury in the Course of Committing a Theft

(18 Pa. C.S.A. § 3701(a)(1)(ii))(Count         XI); and Theft of Movable Property by UnlawfJ

Taking or Disposition (18 Pa. C.S.A. § 3921(a))(Count Xll), stemming from a violen

home invasion robbery, by two (2) men wearing ski masks, that took place on Septembe

6, 2008, in which two adults, a male and a female, were beaten within an inch of thei

lives and a baby was thrown across a room like a football. (Verbal Guilty Plea Colloquy

12/15/11, N. T. 4-12; Sentencing Hearing Transcript, 3/22/12, 18-46). The chilling facts      or
these horrifying crimes are related in great detail in both our September 6, 2011 Opiniol

and Order denying Defendant's Omnibus                Pretrial Motion and our December 4, 201 ·

Opinion Sur RL1le 1925(a) issued in connection with Defendant's direct appeal. The fact

of record establish that Defendant, the taller of the two perpetrators, was responsible fo

the most heinous parts of the attack, including the throwing of the baby. (PCRA Hearin,

Transcript,     6/19/15, N.T. 14).       The Commonwealth obtained DNA evidence         linkin [

Defendant to these appalling crimes.             (See Deft.'s Omnibus Pretrial Motion, 6/16/11;

Opinion and Order, 9/6/11; Sentencing Hearing Transcript, 3/22/12, N.T. 44 ).

                  During pre-trial negotiations in this matter, the Commonwealth, represented
s:\admin\sarcione\Nixon      Brandon 151 PCRA 1925a.doc>c




by then-Assistant District Attorney John H. Pav!off, Esquire, who obtained the approval of

his supervisor,      Deputy       District Attorney    Ronald    C. Yen, Esquire      (PCRA Hearing

Transcript, 2/11/16, N.T. 19), made an initial plea offer to the Defendant of six (6)               tj
twelve (12) years in prison.          (PCRA Hearing Transcript, 6/19/15, N.T. 10). Defendant

who has maintained throughout these PCRA proceedings, notwithstanding that he flied a

pre-trial motion to suppress evidence, that it was always his intention to plead gui1tJ

"because I already knew I was guilty[ ]" (PCRA Hearing Transcript, 6/19/15, N.T. 67)

rejected this offer outright (PCRA Hearing, 6/19/15, N.T. 10-12, 15, 19), because h,

believed that a sentence of no more than two (2) years' minimum was appropriate, give

his lack of a significant criminal history. (PCRA Hearing Transcript, 6/19/15, N.T. 12, 15)

The Commonwealth refused to offer less. (PCRA Hearing Transcript, 6/19/15, N.T. 25).

                 On the belief that he could achieve a result better than the offer

communicated        by the Commonwealth, plea counsel advised Defendant to tender                   al
open plea before the undersigned.            (PCRA Hearing Transcript, 6/19/15, N.T. 16, 19).       o   1
December 15, 2011 Defendant tendered an open guilty plea to the charges of Conspirad

to Commit Burglary (18 Pa. C.S.A. §§ 903, 3502)(Count l); Burglary (18 Pa. C.S.A.

3502(a})(Count        II);     Robbery-Serious        Bodily    Injury   Inflicted   (18   Pa.   C.S.A

3701 (a)(1 )(i))(Count X); and Robbery-Serious Bodily Injury Threatened (18 Pa. C.S.A. •



Plea    Colloquy,    12/15/11, at 1-2).           In exchange     for his tender     of the plea, th ,

Commonwealth, represented by then-ADA John H. Pavloff, Esquire, agreed to waive ail

mandatories and sentencing enhancements                     so long as Defendant met with Count
s:\admin\sarcione\Nixon    Brandon 1'1 PCRA 192Sa.docx




Detectives and provided information about how these crimes occurred.                            (Verbal Guilt
                                                                                                                 I

Plea Colloquy, 12/15/11, N.T. 21, 25; Written Guilty Plea Colloquy, 12/15/11, at 3).

                After the plea was entered but before sentencing (PCRA Hearing

Transcript,    6/19/15,     N.T. 28-29), the Commonwealth,                as represented        by then-AD1

Pavloff, represented to plea counsel that it would not make a recommendation to thJ

Court in excess of its pre-trial offer of six (6) to twelve (12) years in prison.                        (PCRA

Hearing Transcript, 6/19/15, N.T. 29).

                 At some point subsequent to his plea, Defendant met with County

Detectives but did not provide any further information about his crimes because, as hJ

stated, he had been high on PCP at the time of the crimes and did not remembe

anything about them.            (PCRA Hearing Transcript,             6/19/15,    N.T. 83; Post-Sentence

Motion Hearing Transcript, 6/18/12, N.T. 20).3

                 At sentencing, dissatisfied with Defendant's proffer in his colloquy

with the County Detectives (Post-Sentence Motion Hearing Transcript, 6/18/12, N.T. 31

33), the Commonwealth, then represented by Mr. Pavloff's supervisor, Deputy Distric

Attorney Ronald C. Yen, Esquire, as Mr. Pavloff's employment with the Chester Count!

District Attorney's Office had been terminated (PCRA Hearing Transcript, 2/11/16, N.T.

 18), recommended to the Court that Defendant be given a sentence of eleven (11) years'

to twenty-two (22) years confinement in a state penitentiary.                       (Sentencing TranscripJ




3
  When this Court asked Defendant at the sentencing hearing whether he had been on drugs at the time of th
crime, Defendant, contrary to his post-sentence motion hearing testimony and his PCRA hearing testimony, told thy
Court, "I don't even know, your Honor. I don't recall anything." (3/22/12, N.T. 70). As we noted In our prior Rulf
192S(a) Opinion dated December 4, 2012, we find it curious that Defendant can re member nothing about the crime
but does recollect quite clearly that he smoked a PCP-lacedcigarette with his co-defendant prior to the crimes.




    ---------~            ---------------
s:\admin\sarcione\Nixon      Brandon 1st PCRA 1925a.docx




3/22/12, N.T 73-74). The Commonwealth did not seek application of any mandatories ot

sentencing enhancements.             (Sentencing Transcript, 3/22/12, N.T. 7, 73-74).

                 On March 22, 2012, after the completion of a Pre-Sentence Report by the

Office of Adult Probation and Parole, this Court sentenced Defendant to an aggregat

term of nine (9) to twenty (20) years' confinement in a state correctional facility, a ver

reasonable sentence, we consider, in light of the egregious facts of Defendant's crtrnlna

conduct in this matter. (Sentencing Hearing Transcript, 3/22/12, N.T. 93). Following th

denial of Defendant's post-sentence Motion to Modify and Reduce Sentence on August

17, 2012, Defendant filed a timely Notice of Appeal on September 13, 2012, challengin

the length      of his sentence         as both excessive      and allegedly   disproportionate    i

comparison with other sentences for similar conduct in this county.                This Honorabl

reviewing     Court       affirmed   Defendant's    Judgment   of Sentence     on July 30, 2013

Defendant did not file a petition for alfocaturto the Pennsylvania Supreme Court.

                 Instead, on August 27, 2014, Defendant filed a timely first PCRA Petitio

through privately retained counsel.           Defendant's first PCRA Petition alleged that his plea

counsel, Steve Jarmon, Jr., Esquire, was ineffective, essentially, for failing to persuad

him to accept the Commonwealth's first very favorable plea offer and for counseHng th

Defendant to reject said offer.                Defendant   also accused the Commonwealth          or
prosecutorlal misconduct by "sandbagging" him with a recommendation for more timJ

than they had previously represented they would seek.                        He argued that th,

Commonwealth's            representation that it would seek only six (6) to twelve (12) years was

an extrajudicial promise that unlawfully induced him to plead. Finally, Defendant claimed
s:\admin\sarcione\Nixon     Brandon   1s1 PCRA 1925a.docx




that his direct appeal counsel, Lawrence Harrnelin, Esquire, was ineffective for failing to

raise these issues on behalf of the Defendant.

                   On October 13, 2014 the Commonwealth filed an Answer to Defendant's

first PCRA Petition.        After reviewing the Defendant's Petition and the Commonwealth'J

Answer, on October 23, 2014 we issued an Order directing Defendant to file within thirt1

(30) days an Amended PCRA Petition complying with certain pleading requirements of

the Rules of Criminal Procedure governing PCRA Petitions and the PCRA Act, 42 Par

C.S.A. § 9541 et seq. At the defense's request, on November 25, 2014 we granted                thl
defense additional time to file the Amended PCRA Petition required by our October              231
2014 Order.          On January 5, 2015 we, again at Defendant's request, granted him sixtf

(60) more days in which to file his Amended                 PCRA Petition.    We also gave th

Commonwealth an additional twenty (20) days beyond the Defendant's deadline in whic

to file an Answer to the Amended Petition if it so chose.

                    On March 6, 2015 Defendant filed a "Supplement           to Petition for Postf

Conviction        Reliefl   largely complying      with our October   23, 2014   directive.   Thi
Commonwealth, after a successful request for additional time in which to respond, filed a

Supplemental Answer to PCRA Petition on April 20, 2015.                 After reviewing all of thi

documents flied by both parties, on May 14, 2015 we issued an Order scheduling an

evidentiary hearing on all of the issues raised in the Defendant's PCRA Petition, a j

supplemented on March 6, 2015.
s:\admin\sarcione\Nixon      Brandon   151 PCRA1925a.docx




                   We held an evidentiary hearing on Defendant's PCRA Petition over th

course of two (2) days, June 19, 2015 and February 11 . 2016. 4 On March 23, 2016 w,

issued      an    Order denying           and     dismissing          Defendant's   first   PCRA    Petition   as
                                                                                                                I

supplemented on March 6, 2015. On April 15, 2016 Defendant, through present counse

Assistant Chester County Public Defender Ellen B. Koopman, Esquire, filed a timell

Notice of Appeal from our March 23, 2016 Order.                           By Order dated Aprll 18, 2016 we

directed Defendant to file within twenty-one (21) days a Concise Statement of Erro1-J

Complained of on Appeal. By Order dated May 10, 2016, this Court granted defens,

counsel an extension of thirteen (13) days in which to file a Concise Statement in th,

above-captioned matter.             Defendant timely complied with our Order, filing his Concis

Statement on May 23, 2016.

                   In his Concise Statement, Defendant raised the foltowing issue.

                   1. The Court erred by denying Appellant's Petition for Post-
                   Conviction Collateral Relief where Appellant's trial counsel
                   was ineffective for failing to sufficiently advise Appellant of the
                   risks associated with an open guilty plea, rendering that plea
                   involuntary and unknowing.

(Deft. 's Concise Statement, 5/23/16, at 1, para.1 ). Having reviewed the record in light o

the relevant constitutional, decisional and statutory law, we are now prepared to mak

the fotlowing recommendation concerning the merits of Defendant's appeal.

                   Our first argument concerning Defendant's                    appellate issue involves thl

question of waiver.          As we stated earlier, Defendant filed a PCRA Petition challenginJ

counsel's stewardship            on the basis that counsel allegedly did not sufficiently try t


4
    Again, as we noted earlier, the great delay in completing these hearings was occasioned by PCRACounsel's
significant ill health. (PCRA Hearing Transcript, 2/11/16, N.T. 3).




                                                                                            ----····~······-·
s:\ad min\sarcione\Nixon Brandon   1st   PCRA 192Sa.docx




persuade the Defendant      to accept       the Commonwealth's    initial plea offer and that counsel!

allegedly advised Defendant to reject the Commonwealth's offer. He also challenged th,

Commonwealth's       alleged prosecutorial misconduct, contending that the Commonwealth'j

representation    that it would only seek six (6) to twelve             (12) years' imprisonmen\

constituted an extrajudicial promise which unlawfully induced him to plead guilty, an~

attacked the stewardship of direct appeal counsel for failing to raise any of the foregoinJ

issues on Defendant's behalf in Defendant's direct appeal. Defendant did not at any tim,

raise the issue that his counsel did not sufficiently advise him of the "risks" associate!.

with pleading open before the Court. Because Defendant did not raise that issue in th

trial court, that issue should be deemed waived for purposes of appeal. See Pa. R.A.P

302(a)("lssues not raised in the lower court are waived and cannot be raised for the firs

time on appeal."); Commonwealth                v. Roney,   79 A.3d 595 (Pa. 2013),     cett. deniedi,
Roney v.   Pennsylvania, 135 S.Ct. 56 (U.S. Pa. 2014)(Brady claim presented for first tirnJ

on appeal from denial of PCRA petition waived for failure to properly present it before th1

lower court): Commonwealth           v.   Santiago, 855 A.2d 682 (Pa. 2004), reargument       denier.
(October 29, 2004)(a claim not raised in a PCRA petition cannot be raised for the first

time on appeal).

                 In the event this Honorable reviewing Court may disagree, however, we wiljl

provide the following analysis of the merits of Defendant's claim.              When evaluating a

claim of ineffective assistance of counsel, the appellate court will presume that counsel           i
effective and places on the defendant the burden of proving otherwise. CommonweallJ'

v. Burkholder, 719 A.2d 346 (Pa. Super. 1998), appeal denied, 747 A.2d 364 (Pa. 1999)r

See also Commonwealth              v. Mason, 130 A.3d 601 (Pa. 2015)(counsel is presume
s:\admin\sarcione\Nixon       Brandon 111 PCRA 1925a.docx




effective); Commonwealth             v. Burno, 94 A.3d 956 (Pa. 2014). cert. denied, Burno         vj
Pennsylvania,        135 S.Ct. 1493 (U.S. Pa. 2015)(defense           counsel is presumed effectiv~
                                                                                                     I
                                                                                                     I
                                                                                                     I
and the burden of proving constitutional ineffectiveness rests on a defendant).

                  To prevail on a claim that counsel was constitutionally ineffective, a

defendant must overcome the presumption of competence                     by showing that:    (1) hi!

underlying claim is of arguable merit; (2) the particular course of conduct pursued by
                                                                                                     I
counsel did not have some reasonable basis designed to effectuate his interests; and              (3rI
but for counsel's ineffectiveness, there is a reasonable probability that the outcome of          ti]
proceeding would have been different.                Commonwealth v. Mason, 130 A.3d 601         (P~I
2015); Commonwealth v. Fears, 836 A.2d 52 (Pa. 2003). reargument denied (February

19, 2004), cert. denied, Fears v. Pennsylvania, 125 S.Ct. 2956 (U.S. Pa. 2005), denial             11
oosi-conviction           relief aff'd, Commonwealth        v. Fears, 86 A.3d 795 (Pa. 2014).        I
reasonable probability that the result of a proceeding would have been different, as

required to show prejudice, as an element of ineffective assistance of counsel, is ~

probability that is sufficient to undermine confidence in the outcome of the proceedingsl

Commonwealth v. Burno, 94 A.3d 956 (Pa. 2014), cert. denied, Burno                 v.   Pennsylvania!

135 S.Ct. 1493 (U.S. Pa. 2015).

                   Under the PCRA, the defendant must meet his burden by a preponderance

of the evidence.           42 Pa. C.S.A. § 9543(a). The failure to meet any prong of the test fo

ineffectiveness will require rejection of the claim.             Commonwealth v. Mason, 130 A.31

601 (Pa. 2015); Commonwealth v. Burno, 94 A.3d 956 (Pa. 2014), cert. denied. Burno                 J.
Pennsylvania, 94 A.3d 956 (Pa. 2014).

                   In the matter sub Judice, Defendant's underlying claim, namely, that his
     s;\admin\sarcione\Nixon Brandon 1 't PCRA 1925a.docx
l.
     counsel did not sufficient advise him of the risks associated with an open guilty plea, haj

     no arguable merit. We are hard pressed to conceive of the nature of the "risks" to whic.       !
     Defendant alludes in his Concise Statement, other than to recognize that there is a risk i

     pleading open that a judge may sentence a criminal defendant who pleads open i

     excess of the amount of prison time recommended by either party.           Such a risk is no

     associated with a plea tendered pursuant to negotiated terms of sentence.           However

     Defendant's claim that he was not sufficiently advised of this risk is belied by the record.

                    For example, at the first PCRA hearing on June 19, 2015, plea counsel

     stated, w1th regard to his advice concerning Defendant's option of tendering an ope

     plea,

                    A I talked to Brandon about it, explained the best l could what
                    that meant. I was clear that, you know, just because if we do
                    an open guilty plea, there's risks. The judge could give him
                    more. The judge could say regardless of what the DA ls
                    asking for, he could give you more.

                    0. Are you saying you told him that?

                    A. Yes.



                    0. And you told him what?

                    A To the best of my recollection, I told him if you enter an
                    open guilty plea, there's no guarantee as to what your
                    sentence could be. The judge could give you more than the
                    original plea offer. I believe I also told him that the DA could
                    ask for more.

     (PCRA Hearing Transcript, 6/19/15, N.T. 27-28). We credit counsel's testimony here.

                    When Defendant was asked at the PCRA hearing if he knew what an open




                                                                       ---·--·.
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plea was, Defendant replied, "An open plea is when I tell the Court that I'm guilty and th

judge is going to sentence me." (PCRA Hearing Transcript, 6/19/15, N.T. 68). Counse

then asked, "And you don't have any idea what it's going to be."             (PCRA Hearing

6/19/15, N.T. 68).        Defendant replied, "No idea."   (PCRA Hearing Transcript, 6/19/15

N.T. 68).
                                                                                              1
                                                                                              i
                On cross-examination        by the Commonwealth,   the following colloquy too1

place.

                Q. So then Judge Sarcione asked, informed you that you
                could be sentenced up on eighty years. And you indicated
                that you understood that. Now are you saying you didn't
                understand that now when the judge said he could sentence
                you up to eighty years?

                A. I understood that.

                 Q. So you understand that he wasn't bound      by any numbers
                that had been thrown around previously?

                A. Yes.

(PCRA Hearing Transcript, 6/19/15, N.T. 79).

                 During Defendant's guilty plea colloquy, Defendant was advised of the

following by the Court:

                THE COURT: Now, since these are open pleas, we are going
                to go over the maximums. It appears from looking at the
                guilty plea colloquy, each of these offenses, and there's four
                of them, are felonies of the first degree. Does everyone agree
                with that?

                 MR JARMON: Yes.

                 MR. PAVLOFF: Yes, your Honor.
s:\admin\sarcione\Nixon   Brandon 1st PCRA 1925a.docl<




                THE COURT: The maximum pena!ty for each offense is a
                twenty-five  thousand dollar fine and/or twenty years
                imprisonment. Do you understand that?
                [DEFENDANT}: Yes.

                THE COURT: So if they were run consecutively, it would be
                eighty years imprisonment and a hundred thousand dollars in
                fines ....



                THE COURT: And let's go over the guidelines. Conspiracy to
                commit burglary, offense gravity score, the guidelines, young
                man, the DA is looking that up. The guidelines, simply they
                are guide posts for Hie Court to consider in fashioning a
                sentence for you. I can deviate above them or below them, if I
                give reasons. But I must stay within the statutory maximum.

                [DEFENDANT]:        Yes, sir.

(Verbal Guilty Plea Colloquy,          12/i 5/11, 17-19)(emphasis   added).   The Court then

proceeded to recite the application Statewide Guidelines to the Defendant. (Verbal GuiltJ

Plea Colloquy, 12/15/11, N.T. 19-21).

                Finally, Defendant's written guilty plea colloquy, which Defendant executed

immediately prior to tendering his open plea, advises the Defendant that "This is a~

OPEN PLEA OF GUil TY to the crime(s) set forth on the previous page(s). There is            n1
plea bargain or other agreement relating to the plea to those crimes except as stated

below." (Written Guilty Plea Colloquy, 12/15/11, at 3). The tenns "stated below" includej

only that the Commonwealth "will waive all applicable mandatories and sentencin~

enhancements if the defendant meets with county detectives and provides information oj

how the robbery occurred."        (Written Guilty Plea Colloquy, 12/15/11, at 3). There are n!

terms stated, other than the mandatories stated on the first page of the colloquy

concerning any limits to the length of sentencing that the Commonwealth will eithe




                                                                        ---······--·
Ij
     s:\admin\sarcione\Nixon                  Brandon       1st PCRA     1925a.docx




     recommend or that the Court will be able to impose.                                               (Written Guilty Plea Colloquy

     12/15/11, at 1, 3).

                             In light of all of the foregoing examples of the advice given to Defendant

     concerning the ramifications of his tender of an open plea to the aforementioned charges

     we find that Defendant was adequately apprised by both plea counsel and the Court o

     the Court's sentencing                           discretion         and ability to impose a term in excess of tha

     recommended                 by the Commonwealth.                              Defendant's        claim to the contrary                   has n]

     substantive merit.5

                             Because Defendant's underlying substantive claim has no arguable merit,

     Defendant's claim of ineffective assistance of counsel necessarily fails. Commonwea/11

     v. Burno, 94 A.3d 956 (Pa. 2014), cert. denied, Burno v. Pennsylvania, 135 S.Ct. 149                                                               1
     (U.S. Pa. 2015)(a defendant's failure to meet the "arguable merit" prong of the test                                                              fol
     ineffective assistance of counsel will defeat the claim).                                              See a/so Commonwealth                       v




     5
         Further,   given that Defendant             outright     rejected the cornrnonweattrr's   plea offer of six (6) to twelve {12)       vears,    or
     his own accord, and the Commonwealth                         was not willing to offer less time, counsel's advice to Defendant to tender
     an open plea to the charges of Conspiracy to Commit Burglary,                            Burglary, and two (2) counts of Robbery was                  a
     reasonable one designed to effectuate the Defendant's interests.                         Certainly, Defendant could have insisted upon ,
     trial,   but in   that event it   is   likely   he   would   have   been tried on al! of the charges   set forth   in the Information,   includini.
     Crtrnl nal Attempt to Commit Murder of the First Degree, bearing a maximum term of imprisonment of twenty (20) t
     forty (40) years in its own right, two (2) counts of Aggravated Assault, and numerous other offenses, not merely th
     four (4) charges to which he actually tendered his plea. Given the strength of the Commonwealth's case as well a
     Defendant's longstanding intention to plead because he "already knew I was guilty" (PCRA Hearing Transcripti
     6/19/15, N.T. 67). pleading open was realty the only option by which he could attempt to reduce his exposure in thi1
     matter and secure for himself what is in reality a very reasonable sentence given the severity of the crimej
     committed. Counsel's advice to plead open, to the extent it is at issue here, had a reasonable basis designed t ·
     effectuate the Defendant's interests and was within the range of competence demanded of attorneys in crimina
     cases. See Commonwealth                  v. Fowler, 893 A.2d 758 (Pa. Super. 2006)(where               the defendant      enters a plea on th
     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). Accordingly, because Defendant cannot meet the reasonable
     basis prong of the test for ineffective assistance of counsel, plea counsel cannot be deemed ineffective fo~
     counseling Defendant to enter an open plea.
        s:\admin\sarcione\Nixon   Brandon 1'1 PCRA 1925a.docx




        Mason, 130 A.3d 601 (Pa. 2015){the failure to establish any prong of the test fo

        ineffective assistance of counsel defeats the claim).

                         Allegations 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 a1

        involuntary or unknowing plea.             Commonwealth    v. Fears, 836 A.2d 52 (Pa. 2003)

    I   reargument denied (February 19, 2004), cert. denied, Fears v. Pennsylvania, 125 S.Ct

    ' 2956 (U.S. Pa. 2005), denial of post-conviction relief aff'd, Commonwealth v. Fears,            81
I       A.3d 795 (Pa. 20'14).        The record demonstrates       that Defendant's plea was knowingt

        voluntary and intelligent in all respects. Consequently, Defendant is not entitled to relief

        from this Honorable reviewing Court. See Commonwealth v. Fowler, 893 A.2d 758 (Paj

        Super. 2006)(defendant's       guilty plea to third degree murder was not rendered invo!untar

        and unknowing by plea counsel's belief that defendant would receive a less sever1

        sentence than that imposed by the trial court; counsel testified that she never guaranteed

        defendant any specific result, and record was clear that defendant knew he risked ~

        twenty (20) to forty (40) year term of imprisonment and that no sentence was promised td>

        him). See also Commonwealth           v.   Brown, 48 A.3d 1275, 1277 (Pa. Super. 2012),   appe,I
        denied, 63 A.3d 773 (Pa. 2013)(quoting Commonwealth v. Moser, 921 A.2d 526, 528-2f

        (Pa. Super. 2007){"The law does not require that an appellant be pleased with the results
                                                                                                           I
        of the decision to enter a guilty plea; rather '[aJII that is required is that [appellant's

        decision to plead guilty be knowingly, voluntarily and intelligently made.'").

                         In PCRA proceedings, an appellate court's scope of review is limited by the

        PCRA's parameters; since most PCRA appeals involve mixed questions of law and fac,

        the standard of review is whether the PCRA court's findings are supported by the recor          !
 s:\admin\sarcione\Nixon Brandon i" PCRA 1925a.docx




 and free of legal error.    Commonwealth v. Pitts, 981 A.2d 875 (Pa. 2009), subsequenr

 habeas corpus proceeding denied, Pitts v. Kerestes. 2013 WL 4 718950 (E. D. Pa. 2013)I

 The Pennsylvania Superior Court reviews an Order dismissing a PCRA petition in th,

I light most favorable to the prevailing party at the PCRA level. Commonwealth        v.   Ford,   41
 A.3d 1190 (Pa. Super. 2012).        The Superior Court's review of an Order dismissing a

 PCRA petition is limited to the findings of the PCRA court and the evidence of record

 Commonwealth v. Oliver, 128 A.3d 1275 (Pa. Super. 2015); Commonwealth v. Ford,                    41
 A.3d 1190 (Pa. Super. 2012). The Superior Court will not disturb a PCRA court's Orde\

' dismissing a PCRA petition if the Order is supported by the evidence of record and is Ire,

 of legal   error.      Commonwealth      v.   Oliver,   128 A.3d     1275   (Pa. Super.    2015)]

 Commonwealth v. Ford, 44 A.3d 1190 (Pa. Super. 2012). The Superior Court will grant

 great deference lo the factual findings of the PCRA court and will not disturb thost

 findings unless they have no support in the record; however, the Superior Court affords

 no such deference to a PCRA court's legal conclusions.             Commonwealth v. Oliver, 12J

 A.3d 1275 (Pa. Super. 2015); Commonwealth v. Ford, 44 A.3d 1190 (Pa. Super. 2012)]

 A PCRA court's credibility determinations, when supported by the record, are binding              01
 the appellate court.      Commonwealth v. Robinson, 82 A.3d 998 (Pa. 2013). Where                  J
 PCRA petitioner raises questions of law. however, the Superior Court's standard of

 review is de novo and its scope of review is plenary. Commonwealth v. Oliver. 128 A.31

 1275 (Pa. Super. 2015); Commonwealth v. Ford, 44 A.3d 1190 (Pa. Super. 2012).                 Thl
 Superior Court may affirm a PCRA court's dismissal of a PCRA petition on any grounds i.

 the record supports it.    Commonwealth v. Oliver, 128 A.3d 1275 (Pa. Super. 2015).



                                               ~ 15 ~
s:\aclmin\sarcione\Nixon   Brandon 1'' PCRA 1925a.docx




                 We would respectfully submit that our analysis of the issues raised t

Defendant's third PCRA Petition survives the standards applicable to appellate review

Our factual findings are supported by the record and our legal conclusions free of error

Accordingly, we would respectfully submit that Defendant's appeal from our denial of hij

first counseled PCRA Petition has no merit. We would respectfully recommend that thij

Honorable reviewing Court deny and dismiss Defendant's appeal and affirm our Maren

23, 2016 Order dismissing his Petition.

                                                BY THE COURT:



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