J-S14042-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT
                                                            OF
                                                       PENNSYLVANIA


                        v.

    BRANDON RUFFIN

                             Appellant               No. 3684 EDA 2017


                 Appeal from the PCRA Order November 6, 2017
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0011701-2014


BEFORE: OTT, J., MCLAUGHLIN, J., and RANSOM, J.*

MEMORANDUM BY RANSOM, J.:                            FILED APRIL 26, 2018

       Appellant, Brandon Ruffin, appeals from the order entered November 6,

207, denying his timely petition for collateral relief filed under the Post

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

       On August 4, 2014, Appellant was arrested in connection with a shooting

which killed three-year-old Tynirah Borum and seriously injured three adults,

including the child’s mother. In June 6, 2016,1 following an extensive oral and

written colloquy and represented by Michael Wallace, Esq., Appellant entered

into a negotiated guilty plea to third-degree murder, conspiracy to commit

murder, three counts of attempted murder, three counts of aggravated

____________________________________________


1 The matter had proceeded to trial and jury selection had been completed
prior to Appellant’s plea.



* Retired Senior Judge Assigned to the Superior Court.
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assault, and one count of possession of a firearm by a person prohibited.2 The

remaining charges were nolle prossed.

        The same day, the court imposed an aggregate sentence of forty to

eighty years of incarceration, which included consecutive twenty- to forty-year

sentences for third degree murder and conspiracy, and concurrent sentences

on the rest of his charges. Appellant did not timely appeal. Instead, on July

20, 2016, he pro se filed a post-sentence motion to withdraw his guilty plea.

It does not appear from the record that the court ruled on this motion or that

it was denied by operation of law. Thereafter, on May 26, 2017, Appellant pro

se timely filed a petition seeking post-conviction relief. Counsel was appointed

and filed an amended petition on his behalf.

        In November 2017, the court held an evidentiary hearing.         At the

hearing, Appellant indicated that despite the fact that he had been extensively

colloquied regarding the voluntariness of his plea and the appellate rights he

was giving up, he did not want to plead guilty. See Notes of Testimony (N.T.),

11/6/17, at 6-30. Appellant claimed that Attorney Wallace pressured him into

pleading guilty, told Appellant he would file a motion to withdraw his plea and

direct appeal, and never filed any further petitions on Appellant’s behalf. Id.

Appellant claimed that he never heard from Attorney Wallace again, but also

admitted that he did not contact his attorney while incarcerated.           Id.

Appellant also claimed that the court represented to him that with good time,

____________________________________________


2   18 Pa.C.S. §§ 2502(c), 903, 901, 2702, and 6105, respectively.

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he could be released on parole in twenty years.         Id. at 11-12.    Appellant

claimed he lied when he testified under oath that he was pleading guilty of his

own free will. Id. at 21.

      Attorney Wallace testified that Appellant did not ask him to withdraw

the plea and he never discussed either withdrawing the plea or appealing his

sentence with Appellant. Id. at 32. Prior to Appellant agreeing to plead guilty,

Attorney Wallace informed Appellant that the Commonwealth had a strong

case against him, and it was in his best interest to accept a plea offer, where

he faced life imprisonment. Id. at 33.

      At the conclusion of the hearing, the court dismissed the PCRA petition.

Appellant timely appealed. The PCRA court did not order Appellant to file a

Pa.R.A.P. 1925(b) statement of errors complained of on appeal and relied

upon its opinion dismissing the PCRA.

      Appellant raises the following questions for our review:

      I. Was trial counsel ineffective for failing to file a direct appeal?

      II. Was trial counsel ineffective for failing to consult with Appellant
      regarding the filing of a direct appeal after Appellant requested he
      do so?

      III. Was trial counsel ineffective for failing to file a motion to
      withdraw Appellant’s guilty plea because it was unlawfully induced
      and Appellant is innocent?

Appellant’s Brief at 3.

      We review an order denying a petition under the PCRA to determine

whether the findings of the PCRA court are supported by the evidence of



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record and free of legal error. Commonwealth v. Ragan, 923 A.2d 1169,

1170 (Pa. 2007). We afford the court’s findings deference unless there is no

support for them in the certified record. Commonwealth v. Brown, 48 A.3d

1275, 1277 (Pa. Super. 2012) (citing Commonwealth v. Anderson, 995

A.2d 1184, 1189 (Pa. Super. 2010)).

      We presume counsel is effective.      Commonwealth v. Washington,

927 A.2d 586, 594 (Pa. 2007). To overcome this presumption and establish

the ineffective assistance of counsel, a PCRA petitioner must plead and prove,

by a preponderance of the evidence, that 1) the underlying issue has arguable

merit; 2) counsel’s actions lacked an objective reasonable basis; and 3)

petitioner suffered actual prejudice from the act or omission.               See

Commonwealth v. Johnson, 966 A.2d 523, 533 (Pa. 2009) (citations

omitted). A claim will be denied if the petitioner fails to meet any one of three

prongs discussed supra. Commonwealth v. Springer, 961 A.2d 1262, 1267

(Pa. Super. 2008); see also Commonwealth v. Jones, 942 A.2d 903, 906

(Pa. Super. 2008).

      Appellant first claims that counsel was ineffective for failing to file a

direct appeal on his behalf. See Appellant’s Brief at 7. According to Appellant,

he verbally requested that counsel file a direct appeal in the courtroom

immediately after sentencing. Id. at 8. Appellant concludes that counsel’s

unexplained failure to file a direct appeal constitutes ineffective assistance per

se. Id.

      With regard to counsel’s effectiveness in failing to file a direct appeal,

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     [o]ur Supreme Court has held that counsel’s unexplained failure
     to file a requested direct appeal constitutes ineffective
     assistance per se, such that the petitioner is entitled to
     reinstatement of direct appeal rights nunc pro tunc without
     establishing prejudice.    However, before a court will find
     ineffectiveness of counsel for failing to file a direct appeal, the
     petitioner must prove that he requested a direct appeal and the
     counsel disregarded the request.

Commonwealth v. Ousley, 21 A.3d 1238, 1244 (Pa. Super. 2011) (internal

citations and quotations omitted).

     Here, the PCRA court determined that Appellant failed to prove he had

requested that trial counsel file a direct appeal.    See PCRA Court Opinion

(PCO), 11/14/17, at 6. The PCRA court further noted:

     During the evidentiary hearing, [Appellant] testified that he lied
     during this [c]ourt’s guilty plea colloquy and had entered into the
     negotiated plea against his own free will. [Appellant] further
     testified that he asked counsel to withdraw his guilty plea and file
     a notice of appeal during a sidebar conversation that occurred
     after this [c]ourt excused trial counsel.        This [c]ourt finds
     [Appellant’s] account incredible, as [he] was led out of the
     courtroom immediately after this [c]ourt imposed sentence and
     immediately before trial counsel was excused. The only off-record
     conversation between trial counsel and [Appellant] occurred at
     this [c]ourt’s instruction to determine whether [Appellant] was
     willing to waive his presence for a possible restitution hearing . . .
     After it was determined that such a hearing would not be
     necessary, this [c]ourt gave [Appellant] a final opportunity to ask
     about his rights or sentence, and [Appellant] indicated that he had
     no questions. Although [Appellant] had occasions to write counsel
     to make such a request, [Appellant] admits that he never wrote
     to counsel. [Appellant] presents no evidence to support his claim
     beyond his self-serving assertions.




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See PCO at 6-7.3

        As these findings are supported by the record, we find no merit in

Appellant’s claim. See Ragan, 923 A.2d at 1170; see also N.T., 6/7/16, at

57-58, 60-62; 11/6/17 at 32-35.

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

consult with him regarding the filing of a direct appeal after Appellant

requested that he do so. See Appellant’s Brief at 9. Appellant argues that

Attorney Wallace was “arguably on notice” due to Appellant’s untimely motion

to withdraw his guilty plea and where he told counsel he wished to file a direct

appeal. Id. at 9-10.

        With regard to counsel's duty to consult, this Court has held as follows:

        [Case law] impose[s] a duty on counsel to adequately consult with
        the defendant as to the advantages and disadvantages of an
        appeal where there is reason to think that a defendant would want
        to appeal. The failure to consult may excuse the defendant from
        the obligation to request an appeal . . . such that counsel could
        still be found to be ineffective in not filing an appeal even where
        appellant did not request the appeal . . . .

        Pursuant to Roe4 and Touw,5 counsel has a constitutional duty to
        consult with a defendant about an appeal where counsel has
        reason to believe either (1) that a rational defendant would want
____________________________________________


3 The PCRA court also noted Appellant’s lack of credibility in general, as he
claimed during the evidentiary hearing that the PCRA court informed him that
he could be released after twenty years of imprisonment despite his forty-year
minimum sentence. See PCO at 7. The PCRA court notes that the court did
not and would not make such a representation. Id.

4   Roe v. Flores–Ortega, 120 S. Ct. 1029, 1036 (2000).

5   Commonwealth v. Touw, 781 A.2d 1250, 1254-55 (Pa. Super. 2001).

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      to appeal (for example, because there are nonfrivolous grounds
      for appeal), or (2) that this particular defendant reasonably
      demonstrated to counsel that he was interested in appealing.

Ousley, 21 A.3d at 1244–45.

      In the instant case, Appellant entered a negotiated guilty plea and,

accordingly, waived the right to challenge all non-jurisdictional defects except

the legality of his sentence and the validity of his plea. See Commonwealth

v. Pantalion, 957 A.2d 1267, 1271 (Pa. Super. 2008). Appellant’s aggregate

sentence of forty to eighty years for third degree murder and conspiracy to

commit murder was a legal sentence. See 18 Pa.C.S. § 1102(c)-(d) (noting

that statutory maximum for third degree murder and conspiracy to commit

murder is forty years). At the guilty plea hearing, Appellant had indicated that

he was pleading guilty of his own volition and understood the rights he was

giving up. See Pantalion, 957 A.2d at 1271; see also N.T., 6/7/16 at 14-

17, 27-32. The Commonwealth, which had originally sought to try the matter

as a capital case, agreed to this sentence. Accordingly, based on the above,

counsel would have no reason to believe a rational defendant would wish to

appeal, as there were no non-frivolous grounds apparent from the record.

See Ousley, 21 A.3d 1244-45.

      Nevertheless, Appellant argues that he was interested in appealing and

had reasonably demonstrated to counsel that he was interested in appealing.

See Appellant’s Brief at 10. Appellant argues that his motion to withdraw his

guilty plea, filed thirteen days after his time to file a direct appeal had expired,

established that he wished to file a direct appeal.            Id.    Although he


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acknowledges that his appeal would have been untimely, Appellant claims

counsel should have sought to restore his direct appeal rights nunc pro tunc.

Id. at 11. In the alternative, Appellant claims he told counsel that he wished

to appeal and that it was “more likely than not” that he did request counsel to

file an appeal. Id. at 11.

      As noted above, we have already determined the PCRA court’s finding

that Appellant did not ask counsel to file an appeal was supported by the

record.

      Additionally, Appellant’s post-sentence motion to withdraw his plea was

filed well beyond the ten-day time limit for post-sentence motions.         See

Pa.R.Crim.P. 720(A)(1). It was also filed nearly two weeks after the time to

file a timely appeal had expired. See Pa.R.A.P. 903(a). An untimely post-

sentence   motion   does not toll     the   thirty-day appeal period.       See

Commonwealth v. Dreves, 839 A.2d 1122, 1127 (Pa. Super. 2003).

Appellant provides no other reason why he would be entitled to the

reinstatement of his direct appeal rights nunc pro tunc, where he did not

establish that counsel’s actions denied his right to a direct appeal.       See

Commonwealth v. Pulanco, 954 A.2d 639, 642 (Pa. Super. 2008) (noting

that a PCRA petitioner is entitled to an appeal nunc pro tunc where counsel’s

actions entirely denied his right to a direct appeal). Accordingly, Appellant did

not demonstrate to counsel that he was reasonably interested in appealing.

See Ousley, 21 A.3d at 1244–45.




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      Finally, Appellant claims that trial counsel was ineffective due to his

failure to file a motion to withdraw his plea because it was unlawfully induced,

the court’s colloquy was deficient, and Appellant is innocent. See Appellant’s

Brief at 12. Essentially, his argument centers around the fact that Appellant

was not advised by the court of the range of sentences and possible fines

during the oral colloquy, and that this rendered his plea invalid. Id.

      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 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, 558 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.”…

      The 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). Where a defendant enters a plea on

the advice of counsel, the voluntariness of the plea depends on whether the

advice was within the range of competence demanded of attorneys in criminal

cases. Commonwealth v. Timchak, 69 A.3d 765, 769 (Pa. Super. 2013).

In determining whether a plea was entered knowingly and voluntarily, this



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Court considers the totality of the circumstances surrounding the plea.

Commonwealth v. Flanagan, 854 A.2d 489, 513 (Pa. 2004).

      To be valid, the court must determine: “1) the nature of the charges, 2)

the factual basis of the plea, 3) the right to a jury trial, 4) the presumption of

innocence, 5) the sentencing ranges, and 6) the plea court’s power to deviate

from any recommended sentence.” See Commonwealth v. Reid, 117 A.3d

777, 782 (Pa. Super. 2015) (internal citations omitted).         Additionally, “a

written plea colloquy that is read, completed and signed by the defendant and

made part of the record may serve as the defendant's plea colloquy when

supplemented by an oral, on-the-record examination.” Id.

      Here, the record reflects that Appellant entered into a negotiated guilty

plea. He signed a guilty plea colloquy, indicating that he was aware of the

charges, the maximum sentence for the offense, and the circumstances

surrounding the charges. See N.T., 6/7/16 at 14-17, 27-32; see also Guilty

Plea Colloquy, 6/7/16, at 1-4.     He admitted to committing the crimes and

acknowledged that plea counsel had adequately explained the charges to him.

Id. He understood the rights he was foregoing with his plea and stated that

no one had coerced him into pleading guilty. Id. Further, he executed an

addendum to the colloquy which listed the permissible sentence ranges and

detailed his potential exposure and was informed that he faced an aggregate

maximum sentence of two hundred eighty years of incarceration. Id.; see

also N.T., 6/7/16, at 16.      Accordingly, the totality of the circumstances


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supports the contention that Appellant’s plea was entered knowingly,

intelligently, and voluntarily. See Flanagan, 854 A.2d at 513.

     Order affirmed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/26/18




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