J-S05006-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA           :   IN THE SUPERIOR COURT OF
                                       :        PENNSYLVANIA
                                       :
            v.                         :
                                       :
                                       :
BRIAN CHRISTOPHER POPE, JR.            :
                                       :
                  Appellant            :   No. 333 WDA 2017

              Appeal from the PCRA Order January 26, 2017
   In the Court of Common Pleas of Bedford County Criminal Division at
                     No(s): CP-05-CR-0000101-2013


BEFORE:   OLSON, J., OTT, J., and STRASSBURGER*, J.

MEMORANDUM BY OLSON, J.:                           FILED APRIL 17, 2018

     Appellant, Brian Christopher Pope, Jr., appeals from the order entered

on January 26, 2017 that denied his petition filed pursuant to the

Post-Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.

     On January 27, 2014, a jury convicted Appellant of robbery-threat of

immediate serious bodily injury, conspiracy to commit robbery, receiving

stolen property, robbery-inflict bodily injury, possession of firearm by

prohibited person, theft by unlawful taking-movable property, conspiracy to

commit theft, terroristic threats (two counts), and recklessly endangering

another person (two counts). Appellant’s convictions arose from a February

18, 2013 incident in which he and his co-defendant committed a gunpoint

robbery of three drug dealers during a marijuana transaction. On March 21,

2014, the trial court sentenced Appellant to an aggregate term of 19 to 41



____________________________________
* Retired Senior Judge assigned to the Superior Court.
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years’ incarceration.1        This Court affirmed Appellant’s convictions and

judgment of sentence on May 12, 2015.

       On June 1, 2015, Appellant timely filed a pro se petition seeking

collateral relief under the PCRA. The PCRA court appointed counsel, who filed

an amended petition on August 3, 2016. The PCRA court held evidentiary

hearings on September 22, 2016 and November 9, 2016.             Thereafter, the

PCRA court denied Appellant’s petition by opinion and order issued on

January 26, 2017. This appeal followed.2

       Appellant’s brief raises the following claims for our review:

       Whether or not the [PCRA court] erred or abused its discretion
       by finding that [Appellant] did not receive ineffective assistance
       of counsel that so undermined the truth-determining process
       that no reliable adjudication could occur when counsel
       misadvised [Appellant] about the potential sentence?

       Whether or not the [PCRA court] erred or abused its discretion
       by finding that [Appellant’s] rejection of the plea offer was
       knowing, intelligent, or voluntary because he did not understand
       the definition of key legal terms or the importance of certain
       facts?

____________________________________________


1 The court determined that Appellant’s conviction for robbery-inflict bodily
injury, as well as his conviction for two counts of reckless endangerment,
merged with other offenses. Hence, the court did not impose a sentence for
these crimes.

2   Appellant filed a timely notice of appeal on February 23, 2017.
Subsequently, the PCRA court directed Appellant to file a concise statement
of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant
filed his concise statement on March 17, 2017. The PCRA court issued an
order on April 6, 2017 adopting its prior opinion as a statement of its
reasons for denying Appellant’s PCRA petition.



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      Whether or not Pennsylvania [l]aw should require that a court
      verify that a [d]efendant understands the consequences of
      foregoing the last, best offer prior to moving forward with a
      trial?

Appellant’s Brief at 4.

      Appellant’s claims challenge an order denying collateral relief under

the PCRA.    “Our review of a PCRA court's decision is limited to examining

whether the PCRA court's findings of fact are supported by the record and

whether its conclusions of law are free from legal error.” Commonwealth

v. Koehler, 36 A.3d 121, 131 (Pa. 2012) (citation omitted). “[Our] scope of

review is limited to the findings of the PCRA court and the evidence of

record, viewed in the light most favorable to the prevailing party at the

PCRA court level.” Id. A petitioner is eligible for collateral relief only if he

pleads and proves by a preponderance of the evidence that his conviction or

sentence arose from one or more of the errors listed at 42 Pa.C.S.A.

§ 9543(a)(2). “The PCRA court's credibility determinations, when supported

by the record, are binding on this Court.”       Commonwealth v. Spotz, 18

A.3d 244, 259 (Pa. 2011) (citation omitted). “[This Court, however,] applies

a de novo standard of review to the PCRA court's legal conclusions.” Id.

      In his first claim, Appellant asserts that he is entitled to collateral relief

because he met his burden of establishing by a preponderance of the

evidence that he rejected the Commonwealth’s last plea offer and opted to

proceed to trial because of deficient advice offered by counsel. Specifically,


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Appellant claims that counsel assured him that he would prevail before the

jury, that the worst sentence he would receive would be five to 10 years’

incarceration, and that the minimum anticipated sentence following trial

would not be substantially longer than the maximum punishment included in

the Commonwealth’s plea offer.

      The PCRA court rejected these claims largely because it credited the

testimony of trial counsel and rejected that offered by Appellant. Our review

of   the   certified   record   confirms    the    factual   findings   and   credibility

determinations made by the PCRA court. At the PCRA hearing, trial counsel

testified that he relayed to Appellant each plea offer extended by the

Commonwealth. This included the Commonwealth’s final plea offer of 18 to

36 months’ incarceration. Trial counsel described this offer as a “gift” and

strongly urged Appellant to accept it.            Counsel stated, however, that the

ultimate decision to accept the plea was for Appellant, who declined it.

Other evidence in the record supports trial counsel’s testimony that

Appellant was aware of the Commonwealth’s final plea offer and made an

independent choice to reject it.      During a brief colloquy conducted by the

trial court immediately before the commencement of trial, Appellant advised

the court that he discussed the Commonwealth’s last offer with trial counsel

and that he decided to reject it.          N.T. Trial, 1/27/14, at 9.         Moreover,

Appellant prepared a handwritten note that he attached to his presentence

investigation report and forwarded to the sentencing court.               In the note,


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Appellant states:     “I could of took [sic] that 18-36 months and been o.k.

with no worries on when I was coming home, but God told me to go to trial

and when I went I was convicted of all most [sic] everything[.]”

Presentence Investigation Report, 3/18/14.        Based upon our review of the

record, the PCRA court did not err or abuse its discretion in rejecting

Appellant’s claim that counsel’s actions or omissions led him to reject the

Commonwealth’s final plea offer.

      Appellant’s next claim asserts that counsel’s performance was deficient

because he failed to clarify the term “consecutive sentences” or explain the

significance of the firearm for purposes of Appellant’s conviction or sentence.

The   PCRA    court    rejected   these    contentions,   finding   them   factually

inconsistent with the record.      See PCRA Court Opinion, 1/26/17, at 3-4

(noting that counsel’s pretrial letter addressed any issues about the

significance of the firearm and further stating that both the trial court and

counsel explained the possibility of consecutive sentences). We agree that

the PCRA court’s rulings find support in the record. Hence, we deny relief on

this claim.

      In his final claim, Appellant asks this Court to declare that, as a matter

of Pennsylvania law, a trial court must confirm that a criminal defendant

understands the consequences of rejecting the Commonwealth’s final plea

offer before moving forward with a trial. We decline to resolve this issue on

the record before us.        Assuming, without deciding, that the law of


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Pennsylvania imposed such a requirement upon the trial court, Appellant still

would not be entitled to relief.    As we indicated above, the trial court

confirmed that Appellant reviewed the Commonwealth’s final offer with his

attorney.   See N.T. Trial, 1/27/14, at 9.    In addition, the court advised

Appellant that he faced a five-year mandatory sentence on the robbery

charge and noted that Appellant was subject to consecutive sentences in the

event of conviction on multiple charges.           See id. at 8-11.        The

Commonwealth also added that Appellant would face significantly more time

than the mandatory five-years on the robbery charge if the jury convicted on

all charges. See id. at 10-11. Despite these admonitions, Appellant stated

that he would not accept the Commonwealth’s plea offer.         In light of the

Appellant’s receipt of substantial protections prior to proceeding to trial, we

need not reach Appellant’s final claim.

      Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/17/2018




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