J-S13028-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

PAUL A. BROWN

                            Appellant                 No. 1798 EDA 2016


                   Appeal from the PCRA Order May 25, 2016
                In the Court of Common Pleas of Monroe County
              Criminal Division at No(s): CP-45-CR-0002030-2014


BEFORE: BENDER, P.J.E., LAZARUS, J., and FITZGERALD, J.*

JUDGMENT ORDER BY LAZARUS, J.:                         FILED APRIL 18, 2017

        Paul Brown appeals from the order, entered in the Court of Common

Pleas of Monroe County, denying his petition for collateral relief filed under

the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-46 (“PCRA”).         Upon

review, we affirm

        On September 3, 2014, Brown attacked his wife after she rebuffed his

sexual advances. When the couple’s son came to his mother’s aid, Brown

retrieved a machete and attacked him, cutting his arm and leg. Brown then

attacked his wife with the machete as she and their son ran down the street

to escape.     Brown’s wife suffered a laceration to her head and a partially

amputated finger.       Brown fled into the woods; he was apprehended three

____________________________________________


*
    Former Justice specially assigned to the Superior Court.
J-S13028-17



days later and charged with two counts of attempted homicide and related

offenses.

       Brown entered a guilty plea to attempted homicide-serious bodily

injury with respect to the attack on his wife, and aggravated assault-serious

bodily injury for his attack on his son.         Following a written guilty plea

colloquy and an on-the-record oral colloquy, the court accepted Brown’s

plea. On July 28, 2015, the court sentenced Brown to fifteen to forty years’

incarceration. Brown did not file post-sentence motions or a direct appeal.

       On February 4, 2016, Brown filed a pro se PCRA petition; the PCRA

court appointed counsel.         Counsel filed an amended petition on Brown’s

behalf on March 8, 2016, The PCRA court held a hearing and, on May 25,

2016, denied Brown’s petition for relief. This appeal followed.

       Brown raises one issue for our review:1

       Whether the [PCRA] court erred by finding that trial counsel’s
       actions and inaction in connection with [Brown’s] entry of his
       guilty plea did not cause [Brown] to enter an involuntary or
       unknowing plea?

Appellant’s Brief, at 4.



____________________________________________


1
  In his PCRA petition and in his concise statement of errors complained of
on appeal pursuant to Pa.R.A.P. 1925(b), Brown also raised counsel’s
ineffectiveness for failing to file a direct appeal. See Amended PCRA
Petition, 3/8/16, at ¶5. Although the PCRA court addressed this issue in its
Rule 1925(a) opinion, Brown has abandoned that claim in his brief on
appeal. See Pa.R.A.P. 2116.



                                           -2-
J-S13028-17



      We review an order dismissing a petition under the PCRA in the light

most favorable to the prevailing party at the PCRA level.      Our review is

limited to determining whether the findings of the PCRA court are supported

by the evidence of record. We will not disturb a PCRA court’s ruling if it is

supported by evidence of record and is free of legal error. Commonwealth

v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012). To establish ineffectiveness

of counsel in the context of a guilty plea, Brown must demonstrate that

counsel’s ineffectiveness caused him to enter an involuntary or unknowing

guilty plea. Commonwealth v. Lutz, 424 a.2d 1302, 1305 (Pa. 1981).

      After careful review of the record, the parties’ briefs and the relevant

case law, we conclude that President Judge Margherita Patti-Worthington’s

opinion accurately and thoroughly addresses the merits of Brown’s claim on

appeal. See PCRA Court Opinion, 5/25/16, at 4-8. Brown’s claim that he

was “confused” and believed he was entering a plea to two counts of

aggravated assault, is contradicted by the record.    Accordingly, we affirm

the PCRA court’s May 25, 2016 order on the basis of that decision.        We

direct the parties to attach a copy of the PCRA court’s Rule 1925(a) Opinion

in the event of further proceedings in this case.

      Order affirmed.




                                     -3-
J-S13028-17




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/18/2017




                          -4-
                                                                .. ....,_   Circulated 03/27/2017 03:56 PM
                         '   .                                        .l



                         COURT OF COMMON PLEAS OF MONROE COUNTY
                               FORTY-THIRD JUDICIAL DISTRICT
                             COMMONWEAL TH OF PENNSYLVANIA


    COMMONWEALTH OF PENNSYLVANIA                                  2030 CR 2014

                   vs.

    PAUL BROWN,
                   Defendant.                                     POST-CONVICTION
                                                                  COLLATERAL RELIEF

                                              OPINION

           This matter comes before the Court on Paul Brown's ("Defendant") Petition for Post-

    Conviction Collateral Relief. The underlying facts and procedural history are summarized as

    follows:

           On September 3, 2014, police were called to a residence in Coolbaugh Township,

Monroe County, to investigate an alleged assault. Upon arrival, police were informed that Diana

Brown and her son, Matthew Brown, were assaulted with a machete by Defendant, Diana's

husband and Matthew's father. During this assault, Diana suffered a laceration to her head and a

severed finger and Matthew sustained cuts to his arm and leg.

           Defendant was charged by Criminal Information with two counts of Attempted
               1
Homicide, four counts of Aggravated Assault,2 two counts of Terroristic Threats,' four counts of

Simple Assault," and two counts of Recklessly Endangering.5 Robert Saurman, Esq., was court-

appointed to represent Defendant and on April 29, 2015, Defendant pleaded guilty to one count

each of Attempted Homicide and Aggravated Assault. On July 28, 2015, Defendant was


1
  18 Pa. C.S.A § 901(a).
2
  § 2702(a)(l), (4).
3
  § 2706(a)(l ).
4
  § 2701(a)(l), (3).
5
  § 2705.
                    .-,
                                                                                  Brown, 2030 CR 2014



 sentenced to 15 to 40 years incarceration for the Attempted Homicide and 5 to 10 years for the

· Aggravated Assault, run concurrently. The remaining charges were nolle prossed and no post-

 sentence motions or direct appeal were filed.

        On February 11, 2016, we received a prose Motion for Reconsideration Nunc Pro Tune.

 As Defendant's time for post-sentence motions had clearly run, see Pa.R.Crim.Pro. 720(A)(l),

 we treated Defendant's prose Motion as a prose Petition for Post-Conviction Collateral Relief.

 We appointed Brian Gaglione, Esq., to represent Defendant in his PCRA and directed him to file

 an Amended PCRA. We received the Amended Petition on March 8, 2016, and the

 Commonwealth's Answer on March 9, 2016. In the Amended Petition, Defendant avers that

 Attorney Saurman was ineffective as plea counsel which resulted in Defendant's plea being

 unlawfully induced. Defendant asks that we allow him to withdraw his plea and proceed to trial.

 In the alternative, Defendant asks that we reinstate his appellate rights, nunc pro tune, as he

 alleges Attorney Saurman was ineffective for failing to appeal Defendant's sentence.

        On April 4, 2016, we held a hearing on Defendant's Petition and ordered briefs to be filed

 by counsel on or before May 2, 2016. We timely received the Commonwealth's         brief, however,

 as of the date of this Opinion, we have yet to receive a brief from defense counsel. After review

 of Defendant's Amended PCRA Petition, the testimony and evidence from the hearing, and the

 Commonwealth's Answer and brief, we are ready to dispose of this matter.

                                           DISCUSSION

        In his Petition, Defendant avers that the guilty plea he entered was "unlawfully induced"

 because he was "under the impression that he would be pleading to two separate counts of

 Aggravated Assault, and not a single count of Aggravated Assault and ,a single count of

 Attempted Homicide." Def. 's Amended PCRA Pet., 14(b)(i) [hereinafter "Def. 's PCRA,



                                                  2
·,                                                                                     Brown, 2030 CR 2014


     ~ __    ."].Further, Defendant argues he was under said impression "due to discussions he had

     with his attorney, Robert Saurman, Esq., prior to taking his plea." Id. at~ 4(b)(ii). Defendant also

     contends that he sent letters to Attorney Saurman "expressing confusion as to what he had

     actually pied guilty to, and confusion regarding what his sentence could be." Id. at~ 4(b)(iii).

             The Commonwealth responds that Attorney Saurman provided effective assistance to

     Defendant during the plea process. Com.'s Br., p. 3. To support its argument, the

     Commonwealth points to the written plea offer and Defendant's executed guilty plea form as

     well as the transcripts from Defendant's guilty plea hearing and sentencing. Id. Moreover, the

     Commonwealth avers that Attorney Saurman also provided effective counsel regarding

     Defendant's direct appeal because Defendant did not carry his burden to prove that he requested

     said appeal and that Attorney Saurman disregarded that request. Id. at p. 4 (citing

     Commonwealth v. Lantzy, 736 A.2d 570-72 (Pa. 1999)).

             The Pennsylvania Superior Court has held that when a PCRA Petition raises both a

     request to reinstate appellate rights and other claims of ineffectiveness, the trial court must

     address the request to reinstate appellate rights first. Commonwealth v. Miller, 868 A.2d 578, 580

     (Pa. Super. 2005). If this request is meritorious and the defendant's appellate rights are

     reinstated, the trial court "may address, but not 'reach' the merits of any remaining claims." Id.

     Thus, despite Defendant arguing in the alternative for reinstatement of his appellate rights, we

     address this issue first.

             As with all PCRA claims, Defendant has the burden of proof by a preponderance of the

     evidence. See 42 Pa. C.S.A. § 9543(a). In order to prove ineffective assistance of counsel,

     Defendant must show (1) the issue is of arguable merit; (2) counsel's act or omission did not

     have a reasonable basis in effectuating Defendant's interests; and (3) counsel's ineffectiveness



                                                      3
                                                                                  Brown, 2030 CR 20 I 4


worked to Defendant's prejudice. Commonwealth v. Pierce, 645 A.2d 189, 194-95 (Pa. 1994)

(citation omitted). When assessing whether counsel was ineffective regarding a defendant's

appellate rights, we are to use the same standards. See Commonwealth v. Lantzy, 736 A.2d 564,

570-72 (Pa. 1999). "[W)here there is an unjustified failure to file a requested direct appeal, the

conduct of counsel falls beneath the range of competence demanded of attorneys in criminal

cases." Id. at 572.

       After careful review of the record, we find that Defendant is not entitled to reinstatement

of his appellate rights because Defendant did not carry his burden to prove he requested the

appeal. See Lantzy, 736 A.2d at 570-72. At Defendant's PCRA hearing, Attorney Saurman

credibly testified that he did not file a direct appeal because Defendant did not request it.

Attorney Saurman indicated that he did not believe an appeal of Defendant's sentence would

have been successful, however, had Defendant requested such an appeal, he would have filed it

regardless of the merits. Defendant testified that he did request an appeal but that Attorney

Saunnan did not comply with said request.

       Defendant pleaded guilty on April 29, 2015, and was sentenced on July 28, 2015. At the

PCRA hearing, Defendant presented Exhibit 3 to support his allegation that he requested an

appeal. Def.'s Ex. 3, PCRA Hearing, p. 1 (original letter dated November 2, 2015, asking "What

is the status of the appeal and can you send me a copy?"). However, at the sentencing hearing,

this Court explained Defendant's appellate rights to him, including the time in which he had to

file an appeal of his sentence. Notes of Testimony, Sentencing, 7/28115,pp. 10-11 [hereinafter

"N.T., Sentencing, p. _."]. According to the evidence presented by Defendant, he did not




                                                 4
                                                                                                Brown, 2030 CR 2014



attempt to contact his attorney" regarding an appeal until nearly three months after he was

sentenced despite being aware that he only had 30 days to file an appeal. Defendant's version of

events regarding his requested appeal is not credible. Thus, we find that he has not met his

burden to show he requested a direct appeal. See Lantzy, 736 A.2d at 572. Accordingly,

Defendant's request to reinstate his appellate rights, nunc pro tune, is DENIED.

         Having addressed and denied defendant's request to reinstate his appellate rights, we may

now address the merits of whether Defendant's plea was unknowing and involuntary due to

ineffectiveness of counsel. See Miller, 868 A.2d at 580.

         As stated above, ineffective assistance of counsel claims are analyzed under the four-

pronged Pierce test. Pierce, 645 A.2d at 194-95. "A failure to satisfy any one prong of the test

for ineffectiveness will result in this Court's rejection of the claim." Commonwealth v. Bishop,

936 A.2d 1136, 1139 (Pa. Super. 2007) (citation omitted). "The standard for post-senten_ce

withdrawal of guilty pleas dovetails with the arguable merit/prejudice requirements for relief

based on a claim of ineffective assistance of plea counsel." Commonwealth v. Flanagan, 854

A.2d 489, 502 (Pa. 2004). "If a reasonable basis exists for the particular course chosen by

counsel, the inquiry ends and counsel's performance is deemed constitutionally effective."

Commonwealth v. Lauro, 819 A.2d 100, 106 (Pa. Super. 2003) called into doubt on other

grounds by Commonwealth v. Ford, 44 A.3d 1190, 1198-99 (Pa. Super. 2012).

         Generally, once a defendant pleads guilty, we assume he was aware of his actions and

thus "the burden of proving involuntariness is upon him." Commonwealth v. Willis, 68 A.3d 997,

1002 (Pa. Super. 2013). Defendant must show his plea resulted in "prejudice on the order of

manifest injustice" to be allowed to withdraw it post-sentence. Commonwealth v. Jones, 596

6
  We would note that Exhibit 3 is an original Jetter with no accompanying envelope or post mark. Indeed, Defendant
presented no evidence that he ever sent this, or any other, letter to Attorney Saurrnan. Such an absence of evidence is
yet another reason why we find Defendant's version of events incredible.

                                                          5
                                                                                 Brown, 2030 CR 2014



A.2d 885, 889 (Pa. Super. 1991 ). A post-sentence attempt to withdraw a plea "must sustain this

more substantial burden because of the recognition that a plea withdrawal can be used as a

sentence testing device." Commonwealth v. Anthony, 453 A.2d 600, 607 (Pa. Super. 1982).

       Allegations of ineffective assistance of plea counsel provide a basis for withdrawaJ of a

plea "only where there is a causal nexus between counsel's ineffectiveness, if any, and an

unknowing or involuntary plea." Commonwealth v. Flood, 627 A.2d 1 193, 1 199 (Pa. Super.

1993). Whether a plea was entered knowingly and voluntarily is a factual determination.

Commonwealth v. Gray, 463 A.2d 1179, 1180 (Pa. Super. 1983). "Where the defendant enters

his plea on the 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."

Commonwealth v. Hickman, 799 A.2d 136, 141 (Pa. Super. 2002) ( quotation omitted). If

counsel's advice was not within that range of competence, only then must we determine whether

"it is reasonably probable that, but for counsel's errors, [the defendant) would not have pleaded

guilty and would have gone to trial." Id.

       After careful review of the record, we find that Defendant is not entitled to post-sentence

withdraw of his guilty plea. Defendant's testimony given and exhibits presented at the PCRA

hearing allege that Defendant was "confused" as to which charges he pleaded guilty. See, e.g.,

Def.'s Ex. 2, PCRA Hearing. Defendant avers he believed he was pleading guilty to two counts

of Aggravated Assault and not Attempted Homicide and Aggravated Assault. Other evidence,

however, blatantly contradicts such a contention. At Defendant's plea colloquy, this Court asked

Defendant if he reviewed and signed his guilty plea form, to which he indicated that he did.

Notes of Testimony, Guilty Plea, 4/29/2015, p. 8 (a group colloquy where the Court asked "Did

each of you review this [guilty plea] form with your attorney and sign where it says Defendant's



                                                6
                                                                                              ~
                                                                                 Brown, 2030 CR 2014


signature?" and "[ a ]II Defendants responded in the affirmative"); p. 9 (Defendant was asked

individually whether he reviewed his guilty plea form, to which he responded "Yes, I did.")

[hereinafter "N.T., Guilty Pleap. _."].    After the factual recitation, this Court asked Defendant

"[D]id you on September 3rd swing a machete at Ms. Brown in an attempt to kill her and cause

lacerations to her and amputation of a finger ... , "to which he indicated that he did. N .T., Guilty

Plea, p. 10. Thereafter, this Court accepted Defendant's guilty plea to Attempted Homicide. Id

On cross examination at the PCRA Hearing, Defendant testified that he remembered this

exchange and that the Court said "Attempted Homicide." Furthermore, Defendant stated he

remembered pleading guilty to said charge.

       At the PCRA Hearing, Defendant presented Exhibit 2: a letter dated July 10, 2015, where

he inquires of Attorney Saurman "Why was the charge change [sic] from assault to attempted

homicide?" Def. 's Ex. 2, PCRA Hearing. However, at his sentencing on July 28, 2015,

Defendant spoke to the Court, expressed remorse for his actions, and never stated anything

regarding confusion about his guilty plea. N.T., Sentencing, p. 7.

       Attorney Saurman credibly testified at the PCRA Hearing that he folly discussed and

explained, on more than one occasion, Defendant's guilty plea arid sentencing possibilities prior

to the plea hearing. Furthermore, Attorney Saurman testified that whenever he spoke to

Defendant about the guilty plea, although not necessarily pleased, he understood what the plea

entailed. In discussing the guilty plea with Defendant, Attorney Saurman went over the possible

incarceration Defendant faced ifhe were to take this case to trial. Moreover, Attorney Saurman

negotiated with the Commonwealth in an attempt to bring both charges down to Aggravated

Assault and stated this may have been the source of Defendant's initial confusion. Nevertheless,

Attorney Saurman indicated that at the time of the plea, Defendant understood what he would be



                                                 7
·,.

                                                                                       Brown, 2030 CR 2014



      pleading guilty to and that the plea was open with no agreement on sentencing. Defendant was

      further reminded of the openness of his plea at the guilty plea colloquy. N.T., Guilty Plea, pp. 7-

      8.

             Based on the above information, we find that Defendant has failed to meet his burden

      with respect to involuntariness of his plea. See Willis, 68 A.3d at l 002. The credible evidence

      suggests Defendant understood exactly what his plea was and that he voluntarily entered into

      said plea. Defendant's discontent with this Court's sentence has no bearing on the voluntariness

      of his plea as guilty pleas are not meant to be used as sentence-testing devices. See Anthony, 453

      A.2d at 607. Furthermore, we find that Attorney Saurman's advice regarding said plea was

      effective. See Hickman, 799 A.2d at 141. Attorney Saurman explained the plea and the

      accompanying sentencing possibilities to Defendant and testified that Defendant understood

      these consequences. Moreover, Attorney Saurman explained that Defendant's plea was open and

      that while they might hope for a certain sentence, there was no guarantee this Court would

      impose said sentence. Again, simply because this Court did not impose the sentence Defendant

      wanted is of no consequence to Attorney Saurman's effectiveness as Attorney Saurman's advice

      was within the range of competence demanded of attorneys in criminal cases. See id.

      Accordingly, Defendant's request to withdraw his guilty plea and petition for post-conviction

      collateral relief is DENIED.

             Having decided all issues before us, we enter the following order:




                                                       8
-;•
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           .                                                                                          ..-..
                                                                                                              '·




                                   COURT OF COMMON PLEAS OF MONROE COUNTY
                                         FORTY-TIDRD JUDICIAL DISTRICT
                                       COMMONWEALTH OF PENNSYLVANIA


               COMMONWEALTH OF PENNSYLVANIA                                                              2030 CR 2014

                              vs.

               PAUL BROWN,
                        Defendant.                                                                   : POST-CONVICTION
                                                                                                     : COLLATERAL RELIEF

                                                              ORDER

                      AND NOW, this 25th day of May, 2016, upon consideration of Defendant's Amended

               Petition for Post-Conviction Collateral Relief, and after a review of the testimony and evidence

               from the hearing in this matter, Defendant's Petition is DENIED.

                       Defendant is advised he has thirty (30) days from the date of this Order within which to

               file an appeal with the Superior Court of Pennsylvania.



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               cc: Kimberly Metzger, Esq., ADA                                                                                                      '.!>   o          co
                   Brian Gaglione, Esq., Counsel for Defendant                                                                                             ~
                   Paul Brown, Defendant                                                                                                                          ~
                   Clerk of Courts
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