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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

RONALD J. BRILEY

                            Appellant                 No. 2275 MDA 2015


                Appeal from the PCRA Order December 10, 2015
               In the Court of Common Pleas of Dauphin County
              Criminal Division at No(s): CP-22-CR-0003888-2011


BEFORE: BENDER, P.J.E., PANELLA, J., and STEVENS, P.J.E.

MEMORANDUM BY PANELLA, J.                            FILED AUGUST 26, 2016

        Appellant, Ronald J. Briley, appeals from the order entered December

10, 2015, in the Court of Common Pleas of Dauphin County, dismissing his

petition filed pursuant to the Post Conviction Relief Act, 42 Pa.C.S.A. §§

9541-9546. We affirm.

        When he was just 14 years old, Briley and three others robbed a

grocery store in Harrisburg. Upon completion of the robbery, Briley shot the

owner, Chong Kwak, in the head. Kwak did not die in the shooting, but was

rendered comatose.

        The Commonwealth tried Briley as an adult. After a bench trial, the

court convicted him of aggravated assault, robbery, criminal conspiracy, and

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
    Former Justice specially assigned to the Superior Court.
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other charges. The court sentenced him to 20 to 41 years in prison. This

Court affirmed the judgment of sentence. See Commonwealth v. Briley,

1067 Harrisburg 1997 (Pa. Super., filed July 31, 1998) (unpublished

memorandum).

       Kwak’s comatose state lasted for nearly 16 years. He died on June 22,

2011. The cause of death was determined to be complications from the

gunshot wound. The Commonwealth charged Briley with first- and second-

degree murder. In exchange for his entry of a guilty plea to second-degree

murder, the Commonwealth withdrew the first-degree murder charge. The

trial court later sentenced Briley to 35 years to life1 in prison, with credit for

time served and concurrent to his prior sentences. Briley filed a post-

sentence motion, asking for modification of his sentence and withdrawal of

his guilty plea. The trial court denied the motion. Briley appealed. This Court

affirmed the judgment of sentence. See Commonwealth v. Briley, 443

MDA     2014     (Pa.    Super.,     filed     November   5,   2014)   (unpublished

memorandum).

       Briley filed, pro se, a timely PCRA petition alleging ineffective

assistance of trial counsel claims and the illegality of his sentence. The PCRA
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1
  Because of his age at the time of the shooting, Briley was not subject to a
mandatory sentence of life without parole. See Miller v. Alabama, 132
S.Ct. 2455 (2012). Rather, the trial court sentenced him in accordance with
18 Pa.C.S.A. § 1102.1(c)(2) (“A person who at the time of the commission
of the offense was under 15 years of age shall be sentenced to a term of
imprisonment the minimum of which shall be at least 20 years to life.”)



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court    appointed    counsel.     Appointed     counsel   subsequently   moved   to

withdraw. The PCRA court provided notice of its intent to dismiss the petition

without a hearing and to grant appointed counsel’s request to withdraw. On

December 10, 2015, the PCRA court entered an order dismissing the

petition. Briley timely appealed.2

        This Court’s standard of review regarding an order dismissing a

petition under the PCRA is whether the determination of the PCRA court is

supported by the evidence of record and is free of legal error. See

Commonwealth v. Halley, 870 A.2d 795, 799 n.2 (Pa. 2005). The PCRA

court’s findings will not be disturbed unless there is no support for the

findings in the certified record. See Commonwealth v. Carr, 768 A.2d

1164, 1166 (Pa. Super. 2001). A PCRA court may decline to hold a hearing

on the petition if the court determines that the petitioner’s claims are

patently frivolous and are without a trace of support either in the record or


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2
  The order dismissing the PCRA petition did not grant appointed counsel’s
motion to withdraw. This Court ordered appointed counsel to enter her
appearance. Appointed counsel filed a response, claiming that because the
PCRA court’s notice of intent to dismiss the petition noted that it intended to
grant her motion to withdraw as counsel, she was permitted to withdraw.
This, of course, is a patently incorrect position. Thus, this Court ordered
counsel to either enter her appearance or resolve the motion to withdraw in
the PCRA court. Appointed counsel returned to the PCRA court. The PCRA
court entered an order stating that appointed counsel’s petition to withdraw
was proper and granted her permission to withdraw as counsel. This Court
then entered an order providing that Briley is proceeding pro se in this
appeal.



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from other evidence. See Commonwealth v. Jordan, 772 A.2d 1011, 1104

(Pa. Super. 2001).

       Briley first maintains that trial counsel was ineffective for failing to

petition the trial court for a writ of habeas corpus. We disagree.3

       In addressing Briley’s ineffective assistance of counsel claims, we

apply the following principles. We presume counsel’s effectiveness and an

appellant has the burden of proving otherwise. See Commonwealth v.

Pond, 846 A.2d 699, 708 (Pa. Super. 2004).

              In order for Appellant to prevail on a claim of ineffective
       assistance of counsel, he must show, by a preponderance of the
       evidence, ineffective assistance of counsel which, in the
       circumstances of the particular case, so undermined the truth-
       determining process that no reliable adjudication of guilt or
       innocence could have taken place. Appellant must demonstrate:
       (1) the underlying claim is of arguable merit; (2) that counsel
       had no reasonable strategic basis for his or her action or
       inaction; and (3) but for the errors and omissions of counsel,
       there is a reasonable probability that the outcome of the
       proceedings would have been different. The petitioner bears the
       burden of proving all three prongs of the test.

Commonwealth v. Johnson, 868 A.2d 1278, 1281 (Pa. Super. 2005)

(citations omitted).


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3
  The Commonwealth takes the position that by pleading guilty “the only
issues that [Briley] could appeal would be the legality of his sentence, the
voluntariness of his plea, and the jurisdiction.” Commonwealth’s Brief, at 11.
See also id., at 12 (noting that Briley cannot challenge the effectiveness of
plea counsel because he pled guilty). The Commonwealth’s position is
patently incorrect. See 42 Pa.C.S.A. § 9543(a)(2)(ii). This case is not here
on direct appeal; it is a collateral proceeding under the PCRA.



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      Briley contends that the Commonwealth did not establish at the

preliminary hearing that “Appellant’s actions caused Mr. Kwak’s death” and

that “the evidence presented by the Commonwealth did not rule out an

intervening cause of the death of Mr. Kwak during his 15 year convalescent

[sic] prior to death.” Appellant’s Brief, at 13. Thus, according to Briley, trial

counsel should have petitioned, prior to trial, the court for a writ of habeas

corpus. See, e.g., Commonwealth v. Morman, 541 A.2d 356, 357 (Pa.

Super. 1988) (“It is clear that the proper means for testing the finding that

the Commonwealth has sufficient evidence to establish a prima facie case is

to petition the trial court for a writ of habeas corpus.”)

      The record flatly contradicts Briley’s assertions. As we explained on

direct appeal, “[t]he cause of death was determined to be complications

from the gunshot wound….” Briley, 443 MDA 2014, at 2. And it was not in

dispute that Briley was the shooter—he was already serving a judgment of

sentence stemming from his shooting of Kwak. This claim is meritless.

      Briley next maintains that his trial counsel rendered ineffective

assistance of counsel in connection with his guilty plea. This claim is without

merit.

      “Claims challenging the effectiveness of plea counsel’s stewardship

during a guilty plea are cognizable under 42 Pa.C.S.A. § 9543(a)(2)(ii).”

Commonwealth v. Lee, 820 A.2d 1285, 1287 (Pa. Super. 2003) (citation




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omitted). We review allegations of counsel’s ineffectiveness in connection

with a guilty plea as follows:

      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 entry of an unknowing, involuntary, or unintelligent
      plea. See, e.g., [Commonwealth v.] Allen, 557 Pa. [135,]
      144, 732 A.2d [582,] 587 [(1999)] (“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.”)….

      This standard is equivalent to the ‘manifest injustice’ standard
      applicable to all post-sentence motions to withdraw a guilty plea.

Commonwealth v. Morrison, 878 A.2d 102, 105 (Pa. Super. 2005) (some

citations omitted; brackets in original).

      Briley’s claim centers on the allegation “that trial counsel did not

adequately investigate the facts of the case.” Appellant’s brief, at 14. To wit,

“counsel was unaware of any intervening or supervening causes of Mr.

Kwak’s death during his 15 year convalescent [sic] prior to his death.” Id.

      As noted, the record is devoid of any “intervening or supervening

causes.” The cause of death was complications from the gunshot. Briley’s

claim concerning an intervening or supervening cause is pure speculation.

Simply pleading it does not make it so. Briley has the burden in this PCRA

proceeding to prove this claim. See Commonwealth v. Simmons, 804

A.2d 625, 639 (Pa. 2001) (“[T]he unshifting burden to prove ineffectiveness

always rests upon the defendant….”) Briley, despite being provided Kwak’s

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voluminous medical records and an expert4, has not come forward with any

evidence whatsoever (e.g., an expert medical opinion) of an intervening or

supervening cause. This claim has no merit.

        In his next issue, Briley continues to impugn counsel’s effectiveness

during the guilty plea. We address each claim in turn. None have merit.

        He begins5 by claiming that counsel told him that if he went to trial

“the judge would sentence him to life imprisonment despite new laws

concerning juvenile life.” Appellant’s Brief, at 17. Briley’s allegation suggests

that Miller foreclosed the imposition of life imprisonment for juvenile

offenders. By this allegation, Briley seems to feign ignorance of the Supreme

Court’s decision in Miller. The record flatly contradicts this claim. The

prosecutor informed Briley at the guilty plea hearing that Miller “ruled that

it was unconstitutional to mandate a minimum sentence of life imprisonment

for a murder of the first-degree, second degree murder if it was committed

by a juvenile.” N.T., Guilty Plea, 9/4/13, at 3. Briley stated that he
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4
    The trial court provided Briley funds to retain a forensic pathologist.
5
  Briley lists other allegations in this section of his brief that have nothing to
do with the ineffective assistance of counsel in connection with his guilty
plea. We decline to address these allegations. We briefly observe, however,
that Briley contends that counsel rendered ineffective assistance by failing to
move to withdraw his plea by filing a post-sentence motion. Counsel filed
such a motion requesting that very relief. As we noted on direct appeal,
“Appellant filed a post-sentence motion, asking for modification of sentence
and withdrawal of his guilty plea.” Briley, 443 MDA 2014, at 2 (emphasis
added).




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understood that and that he read the decision. See id., at 3-4. The

prosecutor explained to him “that it doesn’t bar the imposition of a life

sentence but it does require that the sentencer has the option of giving

something less than the minimum sentence of life in prison.” Id., at 4. Briley

again responded that he understood. See id., at 4. Thus, Briley was aware

that Miller did not foreclose a life sentence.

      Briley next alleges that trial counsel rendered ineffective assistance

during the plea by telling him that it was in his best interest to plead guilty

“despite evidence that Mr. Kwak’s death may not have been his fault[.]”

Appellant’s Brief, at 17. As noted, there is no such “evidence” in the record.

And Briley does not even explain what this “evidence” is.

      He also contends that trial counsel was ineffective in failing to inform

him that his prison record would be a part of his pre-sentence investigation

report and that its “damaging contents” could affect his sentence.

Appellant’s Brief, at 17. Again, the record flatly contradicts this claim. The

prosecutor explained to Briley at the guilty plea hearing that the report

would contain information about his time spent in prison, as well as

information about his background before he went to prison. See N.T., Guilty

Plea Hearing, 9/4/13, at 6. And, further, that the report would “inform” the

trial court’s decision as to how to impose the sentence. Id. Briley indicated

he understood. See id. The prosecutor thus expressly informed Briley that




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his prison record would be a part of the pre-sentence investigation report

and that it would affect his sentence.

      Briley next claims that his counsel informed him that by pleading guilty

the trial court would not sentence him to over 25 years in prison. Yet again,

the record contradicts this claim. The prosecutor informed Briley that by

entering an open plea of guilty to second degree murder under §

1102.1(c)(2) of the Crimes Code, the trial court would have to impose at

least 20 years to life in prison. See id. The prosecutor further explained that

“[t]he [c]ourt could impose that sentence, could impose life imprisonment,

could impose some sentence greater than 20 years to life imprisonment. It

would be within the sentencer’s discretion.” Id. Briley responded he

understood. See id. The prosecutor put Briley on notice that his sentence, at

the minimum, would have to be at least 20 years to life.

      In his next issue, Briley argues that his sentence is illegal as §

1102.1(c)(2) violates the Ex Post Facto Clause. A panel of this Court has

rejected this very argument with respect to the 35-year mandatory

minimum     for    first-degree   murder    under    §     1102.1(a)(1).   See

Commonwealth v. Brooker, 103 A.3d 325, 340-343 (Pa. Super. 2014).

We can discern no meaningful distinction in this regard between subsections

(a)(1) and (c)(2). Briley does not even cite Brooker. This claim has no

merit. His sentence is legal.




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      Briley’s final claim is that PCRA counsel failed to file an amended PCRA

petition raising the claims he makes on appeal. Given our resolution of the

issues presented in this appeal, this claim is moot.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/26/2016




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