J-S13001-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT
                                                     OF PENNSYLVANIA
                             Appellee

                        v.

    BRANDON SCOTT BEATTY

                             Appellant               No. 1534 MDA 2019


            Appeal from the PCRA Order entered September 9, 2019
               In the Court of Common Pleas of Lebanon County
              Criminal Division at Nos: CP-38-CR-0001055-2016,
                            CP-38-CR-0001310-2016


BEFORE: STABILE, J., DUBOW, J., and PELLEGRINI, J.*

MEMORANDUM BY STABILE, J.:                          FILED AUGUST 03, 2020

        Appellant, Brandon Scott Beatty, appeals from the September 9, 2019

order entered in the Court of Common Pleas of Lebanon County denying his

petition for collateral relief filed pursuant to the Post Conviction Relief Act

(“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. Upon review, we affirm.

        On November 22, 2016, Appellant entered a guilty plea at two docket

numbers, CR-1055-2016 and CR-1310-2016.1          The plea agreement in CR-

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*   Retired Senior Judge assigned to the Superior Court.

1 CR-1055-2016 arises from a high speed chase while an adult and a child
were in the vehicle driven by Appellant. Appellant was charged with causing
or risking a catastrophe, aggravated assault, fleeing or attempting to elude
police officer, receiving stolen property, endangering the welfare of children,
driving under the influence, recklessly endangering another person, criminal
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1055-2016 called for Appellant to receive a minimum sentence of 48 months

in a state correctional institution with the trial court to set the maximum. The

plea agreement in CR-1310-2016 called for a minimum sentence of 6 months’

incarceration and a maximum sentence to be set by the trial court concurrent

with CR-1055-2016.

       On February 1, 2017, the trial court sentenced Appellant to concurrent

terms of 48 months to 20 years’ imprisonment in a state correctional

institution in CR-1055-2016 and 6 months to 10 years in CR-1310-2016.

       On June 8, 2017, Appellant filed a PCRA petition in which he alleged,

inter alia, that the sentencing judge erred in not recusing himself after making

biased comments about Appellant and his family, and trial counsel was

ineffective for not seeking recusal. After appointing counsel, the PCRA court

held a hearing on Appellant’s motion. On September 9, 2019, the PCRA court

denied Appellant’s petition.

       In its order, the PCRA court stated, inter alia:

       The [PCRA court] hereby indicates to [Appellant] that he has 30
       days from today’s date to file an appeal to the Superior Court.
       [Defense counsel] will continue to represent [Appellant] until his
       appeals are exhausted, and [Appellant] shall continue without
       having to pay any filing fees or any costs.
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mischief, resisting arrest and accidents involving damage to attended vehicle
or property. See Criminal Complaint, Affidavit of Probable Cause, 5/17/16.

CR-1310-2016 arises from a burglary incident. Appellant was charged with
burglary (F2) and criminal trespass (F2). See Criminal Complaint, Affidavit of
Probable Cause, 6/15/16.


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Order, 9/9/19, at 1 (emphasis added).

       On September 20, 2019, Appellant filed a single notice of appeal listing

both docket numbers. Pursuant to Commonwealth v. Walker, 185 A.3d

969 (Pa. 2018), which requires separate notices of appeal from an order

resolving issues arising on more than one docket,2 we issued a rule to show

cause why the appeal should not be quashed. Counsel for Appellant filed a

response acknowledging, in essence, his mistake.             Appellant’s Response to

Rule to Show Cause, 10/17/19, at 2.

       Quashal     is   unnecessary      in    view   of   our   recent   decision   in

Commonwealth v. Larkin, — A.3d —, 2020 WL 3869710 (Pa. Super. filed

July 9, 2020) (en banc).         In Larkin, the trial court entered an order of

dismissal in a PCRA case which informed the petitioner that he had thirty days

from the date of the order “to file an appeal.”            Id. at __ (slip op. at 6)

(emphasis in original). The petitioner timely filed a notice of appeal listing

both of his criminal docket numbers. We declined to quash the appeal on the

ground that the order’s reference to “an appeal” misled the petitioner into

filing a single notice of appeal, thus constituting a breakdown in the court’s

operation. Id.




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2Walker’s rule applies to all appeals filed after June 1, 2018, such as the
appeal in the present case.


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       Similarly, the order in the instant case advised Appellant of his right “to

file an appeal” within thirty days of the trial court’s order, the same judicial

breakdown that took place in Larkin. Thus, as in Larkin, we decline to quash

the appeal and will proceed to the merits.

       Appellant argues that the sentencing judge should have recused himself

after making biased comments about Appellant and his family, and that trial

counsel was ineffective for not seeking recusal of the sentencing judge. We

disagree.

       At issue are the following comments by the sentencing judge:3

       I know a little bit of your family history, okay. I know your dad.
       From your social history it tells me he wasn’t really in your life. I
       know two [of] his brothers. . . . I didn’t represent your dad, but I
       represented I think one of his brothers. Another one was
       represented through the office. And I know your grandfather.
       Burglary seems to be something that your grandfather did.
       Burglary seems to be something that your dad did. Burglary
       seems to be something that you do.

                                           ....

       You might be living proof of why you need a dad in your life, why
       you need a mom in your life, why you need somebody to talk to
       you about rules and consequences when you’re this tall, so that
       when you get to be six-three or whatever they said you are you
       will follow the rules and consequences.

                                           ....

       I think where I was talking about your whole life has been about,
       I don’t care what comes down the pike. And, you know, maybe
       you haven’t been given good examples or whatever[.]
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3The sentencing judge was formerly the Chief Public Defender of Lebanon
County.

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                                   ....

     They are agreeing to run all those charges concurrent, anything
     that happened with this vehicle and this burglary, and I’m okay
     with that because four years in jail is a lot of time. But I’m not
     okay with is somebody continuing to do what they want to do and
     not thinking about consequences. So, your tail is going to be 20
     years, and it’s my hope that we don’t see you back here[.]
     Unfortunately, because I knew your dad and represented one of
     your uncles and had that connection, it’s going to be a name that
     I remember.

                                   ....


     Like I said, I know your dad and by and large I think he’s a smart
     fellow. He made one really stupid decision recently, beyond all
     the burglaries that he committed. He decided not to take the plea
     offered him because it was a lot of years and then he decided to
     enter an open plea. Wrong decision. Even smart guys can make
     wrong decisions.

N.T. Sentencing, 2/1/17, at 4-9.

     During the PCRA hearing, trial counsel testified he was not aware of the

sentencing judge’s knowledge of Appellant’s family until the sentencing

hearing. Trial counsel testified that he did not object to any of the above

comments because he was focused on whether the sentencing judge would

accept the negotiated plea.    At any rate, trial counsel did not find the

comments prejudicial. We agree.

     “[A]n appellate court reviews the PCRA court’s findings of fact to

determine whether they are supported by the record, and reviews its

conclusions of law to determine whether they are free from legal error.”

Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014) (citation omitted).

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With regard to the scope of our review, we are “limited to the findings of the

PCRA court and the evidence of record,” viewed in the light most favorable to

party who prevailed before the PCRA court. Id. (citation omitted).

       In reality, Appellant’s claim that the sentencing judge failed to recuse

himself is a thinly disguised attack on the discretionary aspects of his

sentence.     See Appellant’s Brief at 15 (claim that the long “tail,” i.e.,

maximum sentence, was “excessive” and “was only done as a result of the

bias and prejudice shown toward Appellant and [his] family”). This claim is

not cognizable under the PCRA.           The PCRA affords relief for seven specific

categories of claims. 42 Pa.C.S.A. § 9543(b)(2). A claim that the judge failed

to recuse himself it does not fall within any of these categories. Neither does

a challenge to the discretionary aspect of the sentence. Commonwealth v.

Fowler, 930 A.2d 586, 593 (Pa. Super. 2007). No relief is due.

       Next, Appellant claims that counsel was ineffective for failing to request

the recusal of the sentencing judge for his comments. Our Supreme Court

has summarized the Strickland/Pierce4 test for ineffective assistance as

follows:

       [W]e apply a three-pronged test for determining whether trial
       counsel was ineffective, derived from our application in Pierce,
       [] 527 A.2d at 975, of the performance and prejudice test
       articulated by the United States Supreme Court in Strickland,
       466 U.S. at 687[.] The Pierce test requires a PCRA petitioner to
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4 Strickland v. Washington, 466 U.S. 668 (1984); Commonwealth v.
Pierce, 527 A.2d 973 (Pa. 1987).


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      prove: (1) the underlying legal claim was of arguable merit; (2)
      counsel had no reasonable strategic basis for his action or
      inaction; and (3) the petitioner was prejudiced—that is, but for
      counsel’s deficient stewardship, there is a reasonable likelihood
      the outcome of the proceedings would have been different.
      Pierce, [] 527 A.2d at 975. If a petitioner fails to prove any of
      these prongs, his claim fails.

Commonwealth v. Simpson, 66 A.3d 253, 260 (Pa. 2013).

      Appellant failed to prove he suffered prejudice from counsel’s inaction.

Appellant entered in a negotiated plea agreement with the Commonwealth in

which he agreed to an aggregate minimum term of imprisonment of 48

months in a state correctional institution and a maximum sentence term of

imprisonment to be determined by the sentencing court. The sentencing court

accepted this agreement and sentenced Appellant in accordance with its

terms, setting the maximum sentence at 20 years in CR-1055-2016 and 10

years in CR-1310-2016.       Given that the plea agreement did not limit

Appellant’s maximum sentence as well as the serious nature of his crimes,

Appellant failed to present a reasonable likelihood that a different sentencing

judge would have imposed a shorter maximum had trial counsel challenged

the court’s comments and obtained his recusal. As such, Appellant is entitled

to no PCRA relief under the theory of ineffective assistance of counsel.




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     Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/3/2020




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