J-S18001-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT
                                                           OF
                                                      PENNSYLVANIA
                          Appellee

                     v.

DANIEL LYNN BRECHT

                          Appellant                No. 1922 WDA 2016


         Appeal from the PCRA Order entered November 30, 2016
             In the Court of Common Pleas of Warren County
  Criminal Division at No: CP-62-CR-0000524-2013; CP-62-CR-0000525-
                                  2013


BEFORE: STABILE, MUSMANNO, JJ., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY STABILE, J.:                            FILED JULY 24, 2018

     Appellant, Daniel Lynn Brecht, appeals from the November 30, 2016

order dismissing his petition pursuant to the Post Conviction Relief Act

(“PCRA”), 42 Pa.C.S.A. §§ 1-9546. We affirm.

     A prior panel of this Court summarized the relevant procedural history:

           In his two criminal cases, [Appellant] was charged initially
     with a total of one hundred and seventy-four charges relating to
     the protracted sexual abuse of two different children. Following
     plea negotiations with the Commonwealth, [Appellant] agreed to
     plead guilty to one count each of rape by forcible compulsion,
     statutory sexual assault, sexual assault, aggravated indecent
     assault, indecent assault of a person less than thirteen years old,
     and corruption of the morals of a minor.2
                 2 18 Pa.C.SA. §§ 3121(a)(1), 3122.1, 3142.1,
           3125, 3126(a)(7), and 6301, respectively. […]

     All other charges were nolle prossed by the Commonwealth.
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             On June 16, 2014, [Appellant] appeared before the trial
      court to plead guilty to the negotiated terms as set forth above.
      At the guilty plea hearing, [Appellant], who was sixty-three years-
      old at the time of his plea, confirmed that he was not under the
      influence of alcohol or controlled substances at the time of his
      plea.     He further declared that he understood all of the
      constitutional rights that he was waving by entering guilty pleas,
      and that he had no questions for the court in that regard.
      [Appellant] stated that he was entering the plea on his own free
      will, that there were no promises made to him with regard to the
      sentence that he would receive, and that he was not forced or
      threatened to take the plea. [Appellant] conceded that he had
      ample time to consult with his attorney, and that he was satisfied
      with his attorney’s advice. Finally, [Appellant] confirmed his
      understanding that, by pleading guilty to multiple offenses, he
      could receive consecutive sentences for each crime to which he
      pleaded guilty. The trial court accepted the plea, and ordered
      [Appellant] to be evaluated for purposes of a sexually violent
      predator hearing.

Commonwealth v. Brecht, 139 WDA 2015 (Pa. Super. September 22,

2015), unpublished memorandum at 1-3.

      On October 16, 2014, the trial court imposed an aggregate 188 to 376

months of incarceration, comprised of consecutive sentences for each count.

Appellant filed a motion to withdraw his plea on October 20, 2014. The trial

court denied that motion at the conclusion of a January 8, 2015 hearing.

Appellant filed a timely direct appeal, and this Court affirmed the judgment of

sentence. See id. Appellant did not file a petition for allowance of appeal in

the Pennsylvania Supreme Court. On August 5, 2016, Appellant filed a timely,

counseled, first PCRA petition.    The PCRA court conducted a hearing on

November 28, 2016.      The PCRA court denied Appellant’s petition at the




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conclusion of the hearing, but the order was docketed two days later, on

November 30, 2016.

      Appellant filed this timely appeal on December 16, 2016. He presents

five questions for our review:

            1. Was trial counsel ineffective for never independently
               investigating the case or seriously mounting a defense to
               these charges[?]

            2. Was trial counsel ineffective for never exploring a good
               character defense with [Appellant] although [Appellant]
               had no prior criminal record and had people willing to
               come to court and testify as to his good character for
               being law abiding[?]

            3. Did trial counsel have a conflict of interest because if he
               convinced his client to enter a plea, he would get a
               windfall ($40,000) for his limited, minimal, insignificant
               services as opposed to putting in the time and effort to
               determine if a jury trial would be appropriate under the
               circumstances of this case[?]

            4. Did trial counsel misrepresented [sic] the terms of the
               plea agreement which falsely induced [Appellant] to
               enter a plea[?]

            5. Was trial counsel ineffective for not investigating the
               facts surrounding a charge of one count of rape, where
               [Appellant] is impotent with erectile dysfunction and was
               incapable of getting an erection or engaging in
               intercourse[?]

Appellant’s Brief at 3.

      We review the PCRA court’s order to determine whether the record

supports its findings of fact and whether it committed an error of law.

Commonwealth v. Reyes-Rodriguez, 111 A.3d 775, 779 (Pa. Super.




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2015), appeal denied, 123 A.3d 331 (Pa. 2015). We conduct de novo review

of the PCRA court’s conclusions of law. Id.

      Appellant argues that counsel was ineffective. To prevail on this claim,

a PCRA petitioner must plead and prove that (1) the underlying issue is of

arguable merit; (2) counsel had no reasonable strategic basis for the action

or   inaction;   and   (3)   counsel’s    mistake   prejudiced   the   petitioner.

Commonwealth v. Chmiel, 30 A.3d 1111, 1127 (Pa 2001). As to the second

prong, we do not consider whether there were better strategic alternatives;

rather, we consider whether counsel had any reasonable basis for the disputed

action or inaction. Id. For the third prong, prejudice, we examine whether

the outcome of the proceeding would have been different but for counsel’s

error. Id. We presume counsel’s effectiveness, and the petitioner has the

burden of proving otherwise. Commonwealth v. Brown, 767 A.2d 576, 581

(Pa. Super. 2001).     To demonstrate prejudice, the petitioner must show a

reasonable probability that, but for counsel’s mistakes, the petitioner would

have proceeded to trial. Commonwealth v. Hickman, 799 A2d 136, 141

(Pa. Super. 2002).

      In all but his third question presented, Appellant challenges the

adequacy of plea counsel’s services in connection with Appellant’s guilty plea.

We must therefore be mindful of the following:

            It is clear that a criminal defendant’s right to effective
      counsel extends to the plea process, as well as during trial.
      However, [a]llegations of ineffectiveness in connection with the
      entry of a guilty plea will serve as a basis for relief only if the

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      ineffectiveness caused the defendant to enter an involuntary or
      unknowing plea. 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. Wah, 42 A.3d 335, 338–39 (Pa. Super. 2012) (quoting

Commonwealth v. Allen, 833 A.2d 800, 802 (Pa. Super. 2003), appeal

denied, 860 A.2d 488 (Pa. 2004)).

      Our   Supreme    Court has    addressed the     adequacy   of counsel’s

investigation:

            [S]trategic choices made after thorough investigation of law
      and facts relevant to plausible options are virtually
      unchallengeable; and strategic choices made after less than
      complete investigation are reasonable precisely to the extent that
      reasonable professional judgments support the limitations on
      investigation. In other words, counsel has a duty to make
      reasonable investigations or to make a reasonable decision that
      makes particular investigations unnecessary.               In any
      ineffectiveness case, a particular decision not to investigate must
      be directly assessed for reasonableness in all the circumstances,
      applying a heavy measure of deference to counsel’s judgments.

Commonwealth v. Williams, 141 A.3d 440, 463 (Pa. 2016) (quoting

Strickland v. Washington, 466 U.S. 668, 690-91 (1984)).

      Appellant first asserts that counsel’s investigation was inadequate and

that he failed to mount a serious defense. Appellant claims plea counsel failed

to seek relevant discovery, including note cards one of the victims kept with

respect to the alleged assaults and the mental health records of the other

victim, who allegedly suffers from hallucinations.     Appellant also claims,




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among other things, that counsel should have hired an investigator to explore

inconsistencies in the victims’ accounts of the assaults.

      At the PCRA hearing, plea counsel testified that he believed based on

his observations of them at the preliminary hearing that both victims would

make strong trial witnesses.      Id. at 88.    Counsel stated that Appellant

admitted to some but not all of the charged conduct in his initial interview with

the State Police. Id. at 101. “[H]is main defense was, I did some of this, but

not all of it.” Id. Counsel did not think that was a good strategy for a jury

trial in this case. Given his assessment of the strength of the Commonwealth’s

case and the 174 charges pending against Appellant, counsel elected to

engage in early plea negotiations.      The PCRA court noted that Appellant

authorized counsel to engage in those negotiations.         PCRA Court Opinion,

5/1/17, at 9.

             While Appellant may have felt that he was being ‘pressured’
      by trial counsel, the reality of facing two (2) compelling victims’
      testimony, a partial confession, and potential sentences that
      would effectively result in a life sentence, this strategy was not
      unreasonable. Once the Appellant decided to accept responsibility
      for his conduct, and advised counsel to pursue plea negotiations,
      trial counsel had a reasonable basis for not pursuing further
      investigations.

                                         […]

            Once the Appellant instructed trial counsel to pursue this
      strategy, which we find to be true, counsel cannot be faulted
      with pursuing that objective, negotiating a plea that results in
      96% of the charges being nolle prossed, and the Appellant
      ultimately entering a voluntary plea to the charges.




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Id. at 9. In summary, the PCRA court credited counsel’s testimony that the

victims would make strong witnesses, and that Appellant wished to engage in

early plea negotiations. We reject Appellant’s first argument based on the

PCRA court’s opinion.

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

and interview potential character witnesses.

             A defense counsel’s failure to call a particular witness to
      testify does not constitute ineffectiveness per se. In establishing
      whether defense counsel was ineffective for failing to call
      witnesses, a defendant must prove the witnesses existed, the
      witnesses were ready and willing to testify, and the absence of the
      witnesses’ testimony prejudiced petitioner and denied him a fair
      trial.

                                         […]

            Evidence of good character offered by a defendant in
      a criminal prosecution must be limited to his general
      reputation for the particular           trait   or  traits of
      character involved in the commission of the crime charged.
      The cross-examination of such witnesses by the Commonwealth
      must be limited to the same traits. Such evidence must relate to
      a period at or about the time the offense was committed, and
      must be established by testimony of witnesses as to the
      community opinion of the individual in question, not
      through specific acts or mere rumor.

Commonwealth v. Johnson, 27 A.3d 244, 247-48 (Pa. Super. 2011)

(internal citations and quotation marks omitted; emphasis in original).

      The PCRA Court reasoned that character evidence was unlikely to help

Appellant in the instant case, given his partial confession and the strong victim

witnesses. Furthermore, At the PCRA hearing, Appellant presented only one

possible character witness, and he testified that he and a few of Appellant’s


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acquaintances and coworkers were surprised to learn of the charges. PCRA

Court Opinion, 5/1/17, at 11. Thus, the PCRA court concluded that Appellant

failed to establish that a fuller investigation of potential character witnesses

would have led Appellant to reject the plea bargain and proceed to trial. We

agree, and we reject Appellant’s second argument based on the PCRA court’s

opinion.

      Third, Appellant claims that counsel had a conflict of interest because

he paid counsel a nonrefundable $40,000.00 retainer. Appellant insinuates

that plea counsel had an incentive to do as little work as possible after his

receipt of the $40,000.00.       Appellant claims counsel did not hire an

investigator because the investigator would have been paid out of the

$40,000.00. In support of his argument, Appellant cites Rule 1.5(a) of the

Rules of Professional Conduct, which states that “[a] lawyer shall not enter

into an agreement for, charge, or collect an illegal or clearly excessive fee.”

Pa.R.P.C. 1.5(a). He does not develop any legal argument that an allegedly

excessive fee supports a finding that counsel rendered ineffective assistance.

The PCRA court summarized its findings and rationale:

            This court cannot conclude that trial counsel, motivated by
      greed, mislead [sic] the Appellant with respect to his case, and
      coerced the Appellant into an involuntary guilty plea. The court
      can conclude, that trial counsel reasonably pursued an early plea
      strategy, that Appellant entered a knowing and voluntary plea as
      a result, and in hindsight is unhappy with both the court’s
      sentence and the excessive fee charged by counsel.




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PCRA Court Opinion, 5/1/17, at 12. We reject Appellant’s argument based on

the PCRA court’s opinion.

      Fourth, Appellant claims counsel was ineffective for advising him that

the prosecutor would not object to a seven-year minimum sentence. As noted

above, the trial court imposed a considerably longer minimum sentence.

Regardless, Appellant litigated this issue on direct appeal in challenging the

trial court’s denial of his post-sentence motion to withdraw his guilty plea:

             Instantly, we agree with appellate counsel and the trial court
      that [Appellant] cannot demonstrate that manifest injustice will
      result if he were not permitted to withdraw his guilty plea. First,
      the record unequivocally demonstrates that [Appellant’s] decision
      to plead guilty was knowing, intelligent, and voluntary. Second,
      at the guilty plea hearing, [Appellant] confirmed that he was
      entering the plea on his own free will, that he was not forced or
      threatened in any fashion to take the plea, and that he understood
      that there was no agreement regarding the sentence that he
      would receive. [Appellant] also asserted that he was satisfied with
      his attorney and that his attorney discussed the facts and possible
      sentences at length. Finally, [Appellant] acknowledged that the
      court was not bound by any agreement, and that the court could
      impose all sentences to run consecutively to each other.

           At the post-sentence motion hearing, [Appellant] attempted
      to portray the pre-trial discussions with counsel as coercive.
      [Appellant] maintained that he felt like he was being funneled into
      a guilty plea based upon counsel’s assurances that the
      Commonwealth would not object to a minimum prison term of
      seven years and that, if he went to trial and lost, he would be
      sentenced potentially to hundreds of years in prison. However, in
      the same hearing, [Appellant] admitted that counsel did not
      promise or guarantee any particular sentence if [Appellant]
      pleaded guilty.

Brecht, 139 WDA 2015, unpublished memorandum at 10-11.                 Appellant

cannot make out the first prong of an ineffective assistance claim because he



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already litigated the underlying issue on direct appeal.          42 Pa.C.S.A.

§ 9543(a)(3). We are cognizant that this Court on direct appeal decided the

case under the manifest injustice standard applicable to post-sentence plea

withdrawals. Regardless, our prior memorandum clearly demonstrates that

this issue is without arguable merit.

      Finally, Appellant claims that counsel was ineffective for failing to

develop a defense based on Appellant’s erectile dysfunction, which would have

rendered it impossible for him to penetrate the victims’ vaginas with his penis,

as alleged under some of the charges. At the PCRA hearing, Appellant failed

to prove his claim.

            [Appellant] presented some medical records at [the]
      hearing from between 2010 and 2013. They reference a past
      diagnosis of impotence of organic origin. Appellant’s sexual
      assaults of his two stepdaughters occurred from 2003 to 2010.
      Appellant testified briefly about his diagnosis and some
      discussions with trial counsel and presentation of medical records,
      as did his sister. Trial counsel confirmed the same.

             However, no testimony was presented establishing that the
      Appellant was unable to achieve an erection at the time the sexual
      assaults were committed. No expert medical testimony was
      presented as to the nature of the dysfunction or any prescribed
      treatment. No medical testimony was presented that it was a
      permanent or total disability or whether [Appellant] was unable to
      achieve an erection or maintain an erection. The Appellant took
      the witness stand at his hearing on the motion to withdraw his
      guilty plea, represented by different counsel, and asserted his
      innocence without any mention whatsoever of impotency or
      erectile dysfunction and no explanation of his admission to some
      sexually assaultive conduct.

We reject Appellant’s final argument based on the PCRA court’s May 1, 2017

opinion.


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     For all of the foregoing reasons, we affirm the PCRA court’s order, and

we direct that a copy of the PCRA court’s May 1, 2017 opinion be filed along

with this memorandum.

     Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/24/2018




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