Com. v. Brown, G., Sr.

• Court: Superior Court of Pennsylvania
• Decided: May 8, 2018
• Docket: 1172 MDA 2017
• Status: Unpublished

Opinion

J-S20045-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : GREGORY LYNN BROWN, SR. : : Appellant : No. 1172 MDA 2017

Appeal from the PCRA Order June 30, 2017 In the Court of Common Pleas of York County Criminal Division at No(s): CP-67-CR-0000660-2015

BEFORE: GANTMAN, P.J., OTT, J., and KUNSELMAN, J.

MEMORANDUM BY GANTMAN, P.J.: FILED MAY 08, 2018

Appellant, Gregory Lynn Brown, Sr., appeals from the order entered in

the York County Court of Common Pleas, which denied his first petition filed

pursuant to the Post Conviction Relief Act (“PCRA”).1 We affirm and grant

counsel’s petition to withdraw.

In its opinion, the PCRA court accurately set forth the relevant facts and

procedural history of this case. Therefore, we have no reason to restate them.

Preliminarily, appellate counsel has filed a motion to withdraw as

counsel and an accompanying brief pursuant to Commonwealth v. Turner,

518 Pa. 491, 544 A.2d 927 (1988) and Commonwealth v. Finley, 550 A.2d

213 (Pa.Super. 1988) (en banc). Before counsel can be permitted to withdraw

____________________________________________

1 42 Pa.C.S.A. §§ 9541-9546. J-S20045-18

from representing a petitioner under the PCRA, Pennsylvania law requires

counsel to file a “no-merit” brief or letter pursuant to Turner and Finley.

Commonwealth v. Karanicolas, 836 A.2d 940 (Pa.Super. 2003).

[C]ounsel must…submit a “no-merit” letter to the [PCRA] court, or brief on appeal to this Court, detailing the nature and extent of counsel’s diligent review of the case, listing the issues which the petitioner wants to have reviewed, explaining why and how those issues lack merit, and requesting permission to withdraw.

Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa.Super. 2007). Counsel

must also send to the petitioner a copy of the “no-merit” letter or brief and

motion to withdraw and advise petitioner of his right to proceed pro se or with

privately retained counsel. Id. “Substantial compliance with these

requirements will satisfy the criteria.” Karanicolas, supra at 947.

Instantly, appellate counsel filed a motion to withdraw as counsel and a

Turner/Finley brief detailing the nature of counsel’s review and explaining

why Appellant’s issues lack merit. Counsel’s brief also demonstrates she

reviewed the certified record and found no meritorious issues for appeal.

Counsel notified Appellant of counsel’s request to withdraw, and advised

Appellant regarding his rights. Thus, counsel substantially complied with the

Turner/Finley requirements. See Wrecks, supra; Karanicolas, supra.

Counsel raises the following issues on Appellant’s behalf:2

WHETHER THE PCRA COURT ERRED IN RULING THAT ____________________________________________

2 Appellant has not responded to the Turner/Finley brief pro se or with newly retained private counsel.

-2- J-S20045-18

APPELLANT’S [PLEA] COUNSEL…DID NOT RENDER CONSTITUTIONALLY INEFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF APPELLANT’S RIGHT TO COUNSEL GUARANTEED BY THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 9 OF THE PENNSYLVANIA CONSTITUTION, FOR FAILING TO REVIEW THE PRE- SENTENCE INVESTIGATION (“PSI”) REPORT WITH APPELLANT PRIOR TO THE DECEMBER 29, 2015 SENTENCING HEARING.

WHETHER THE PCRA COURT ERRED IN RULING THAT APPELLANT’S [PLEA] COUNSEL…DID NOT RENDER CONSTITUTIONALLY INEFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF APPELLANT’S RIGHT TO COUNSEL GUARANTEED BY THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 9 OF THE PENNSYLVANIA CONSTITUTION, FOR FAILING TO OBTAIN AND SUBMIT APPELLANT’S MENTAL HEALTH RECORDS FOR THE TRIAL COURT’S CONSIDERATION AT THE SENTENCING HEARING?

(Turner/Finley Brief at 5) (internal footnotes omitted).

Our standard of review of the denial of a PCRA petition is limited to

examining whether the record evidence supports the court’s determination

and whether the court’s decision is free of legal error. Commonwealth v.

Ford, 947 A.2d 1251 (Pa.Super. 2008), appeal denied, 598 Pa. 779, 959 A.2d

319 (2008). This Court grants great deference to the findings of the PCRA

court if the record contains any support for those findings. Commonwealth

v. Boyd, 923 A.2d 513 (Pa.Super. 2007), appeal denied, 593 Pa. 754, 932

A.2d 74 (2007). If the record supports a post-conviction court’s credibility

determination, it is binding on the appellate court. Commonwealth v.

Dennis, 609 Pa. 442, 17 A.3d 297 (2011).

-3- J-S20045-18

After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable Michael E.

Bortner, we conclude Appellant’s issues merit no relief. The PCRA court

opinion comprehensively discusses and properly disposes of the questions

presented. (See PCRA Court Opinion, filed January 12, 2018, at 6-10)

(finding: court credited plea counsel’s testimony at PCRA hearing that he

reviewed PSI report with Appellant and that Appellant did not release his

mental health records to counsel; in any event, PSI report noted Appellant’s

mental disorders and medications; thus, Appellant’s claims lack arguable

merit; additionally, counsel initially recommended that Appellant accept

Commonwealth’s global offer of 10-20 years’ imprisonment for all three cases

Appellant was facing, but Appellant rejected offer; counsel reviewed PSI report

with Appellant, who then went on to enter open guilty plea voluntarily;

Appellant cannot show counsel’s actions lacked reasonable basis; further,

Appellant had time to review PSI report, which included Appellant’s mental

health considerations; Appellant freely rejected Commonwealth’s initial plea

offer and entered open guilty plea; Appellant cannot establish prejudice, and

his ineffectiveness claims fail). Accordingly, we affirm based on the PCRA

court’s opinion. Following an independent review of the record, we grant

Order affirmed; counsel’s petition to withdraw is granted.

-4- J-S20045-18

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 5/8/2018

-5- Circulated 04/25/2018 01:43 PM

IN THE COURT OF COMMON PLEAS OF YORK COUNTY, PENNSYLVANIA

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if; =0) -,- CO GREGORY L. BROWN, SR., Appellant OPINIONJN_SUPPORT OF ORDER .-TO.-EISTJANT-TOTTra7R-2tP7I925(a)

Appellant Gregory L. Brown, Sr. appeals to the Superior Court of

Pennsylvania from the Order Denying Defendant's Petition for Post -

Conviction Relief on June 30, 2017. On July 26, 2017, Appellant filed a

Notice of Appeal. Appellant then filed a Concise Statement of Errors

Complained of Pursuant to Rule of Appellant Procedure 1925(b) on

August 24, 2017. The trial court now issues this 1925(a) Opinion.

PROCEDURAL HISTORY

On November 9, 2015, Appellant pled guilty (CR-731-2015) to

Conspiracy to Commit Robbery and Robbery under 18 Pa.C.S.A. § 903

and 18 Pa.C.S.A. § 3701 (A)(1)(II); pled guilty (CR-428.2015) to

Terroristic Threats under 18 Pa.C.S.A. § 2706 (A)(1); and pled guilty

(CR-660-2015) to Robbery under 18 Pa.C.S.A. § 3701 (A)(1)(II). The Honorable Michael E. Bortner ("trial court") ordered a full

Pre -Sentence Investigation (PSI) report and recommendation. The trial

court held a sentencing hearing on December 29, 2015. Appellant was

sentenced to serve two consecutive terms of eight to twenty years

imprisonment with a concurrent sentence of three and half years to

seven years imprisonment. Appellant was represented at the time by

William H. Graff, Esquire.

On December 12, 2016, Appellant filed a motion for post -

conviction relief alleging ineffective assistance of counsel and the

imposition of a sentence greater than the lawful maximum. On

December 29, 2016, Heather Reiner, Esquire was appointed to become

Appellant's counsel.

The trial court denied Appellant's PCRA motion after a hearing on

June 30, 2017. In his statement, Appellant alleges two issues to be

considered by this Court:

1) whether the trial court erred in finding that there was no

ineffective assistance of counsel when Attorney Graff failed to review

the PSI report with Appellant before the sentencing hearing; and

2 2) whether the trial court erred in finding that there was no

ineffective assistance of counsel when Attorney Graff failed to obtain

and submit Appellant's mental health records to the trial court for

sentencing purposes.

FACTUAL SUMMARY

At the PCRA hearing, Appellant testified that he never "received

my pre -sentence investigation in a reasonable amount of time for me to

observe it before sentencing." PCRA Hearing Transcript 6/30/2017, at 4.

Appellant testified that he had decided to enter into an open guilty plea,

even though there was an offer by the Commonwealth to serve only 10

to 20 years imprisonment. Id. at 5. Appellant testified that Attorney

Graff told Appellant that Appellant should make an open guilty plea

instead of entering into a plea agreement with the Commonwealth

because Appellant would "probably get less [time] than that." Id.

Appellant testified that he knew the risks of entering into an open

guilty plea and that the sentence was ultimately at the discretion of the

trial court. Id.

3 Appellant testified that he didn't get a chance to look at the pre -

sentence investigation report until the day of sentencing. Id. at 6.

Appellant testified that Attorney Graff did not review the report with

him. Id. Appellant testified that he could not recall if Attorney Graff

had any discussion with Appellant immediately before the sentencing

hearing or if Attorney Graff made any mitigating arguments on

Appellant's behalf. Id. at 7.

Appellant testified that he was involved with the pre -sentence

investigation interview. Id. at 6. Appellant testified that he did not take

any medication for bipolar disorder and manic depression at the time of

his offense. Id .at 8. Appellant testified that he currently takes

medication and that the Probation Department was aware of these

issues. Id.

Appellant testified that Attorney Graff visited Appellant at the

York County Prison and told Appellant that he would obtain

Appellant's mental health and medical records. Id. at 9.

Appellant testified that if he saw the Probation's Department

recommendation, he would have withdrawn his open guilty plea and

4 went to trial. Id. Appellant also testified that he entered the open guilty

plea knowingly and voluntarily. Id. at 10.

Attorney Graff testified that he discussed the options of taking the

Commonwealth's offer, going to trial, or entering an open guilty plea

with Appellant. Id. at 16. Attorney Graff testified that the PSI report

stated that Appellant had bipolar. Id. at 18. Attorney Graff testified

that he did review the report with Appellant before the sentencing hearing. Id. Attorney Graff testified that he never told Appellant that

Appellant would receive a lesser sentence if Appellant entered into an

open guilty plea. Id. at .19.

Attorney Graff testified that he never received any mental health

or medical records that were released to him. Id. at 22. Attorney Graff

testified that he believed the PSI report was sufficient in describing

Appellant's mental health. Id.

5 :D ISSUES FOR APPEAL

Whether the trial court erred in denying Appellant's PCRA motion when Appellant did not suffer from the ineffective assistance of counsel.

DISCUSSION

The trial court did not err in denying Appellant's PCRA motion because Appellant was informed of the risks of entering into an open guilty plea and because the PSI report adequately detailed Appellant's mental health records.

Appellant argued that his inability to review the PSI report prior

to the sentencing and the lack of submission of mental health

documents rose to the level of ineffective assistance of counsel as a

violation to his right to counsel. The Commonwealth argued that

Appellant did have to time to review the PSI report, that Appellant

freely entered into the open guilty plea, and that the mental health

records, which Appellant cited, do not exist.

The standard for deciding ineffective assistance of counsel is as

follows:

Counsel will be found to be ineffective where (I) there is arguable merit to the underlying claim; (2) the course chosen by counsel does not have a reasonable strategic basis designed to advance the defendant's interests; and (3) the error of counsel prejudiced the 6 petitioner, i.e., there is a reasonable probability that, but for the error of counsel, the outcome of the proceeding would have been different. Counsel will not be deemed ineffective for failing to raise a baseless claim.

Commonwealth v. Henke, 851 A.2d 185, 187 (Pa. Super. 2004) (internal

citations omitted).

Counsel's chosen strategy lacks a reasonable basis only if an

appellant proves that "'an alternative not chosen offered a potential for

success substantially greater than the course actually pursued."'

Commonwealth v. Spotz, 18 A.3d 244, 260 (Pa. 2011). (citation omitted).

To establish the third prong, an appellant must show "that there is a

reasonable probability that the outcome of the proceedings would have

been different but for counsel's action or inaction." Id.

The petitioner "bears the burden of proving counsel's

ineffectiveness." Commonwealth v. Childs, No. 928 WDA 2015, 2016

WL 2845073, at *3 (Pa. Super. Ct. May 13, 2016). The weight of the

evidence "is exclusively for the finder of fact who is free to believe all,

part, or none of the evidence and to determine the credibility of the

witnesses." Commonwealth v. Champney, 832 A.2d 403, 408 (Pa. 2003)

(citations omitted). 7 1.4 Under the first prong of the standard for ineffective assistance of

counsel, there is no arguable merit to either of Appellant's claims.

Appellant insisted that he didn't get a chance to look at the PSI report

until the day of sentencing. He claimed that Attorney Graff did not a review the report with him, however he also could not recall if Attorney

Graff had any discussion with Appellant immediately before the

sentencing hearing or if Attorney Graff made any mitigating arguments

on Appellant's behalf.

Attorney Graff testified that he did review the PSI report with

Appellant. Attorney Graff further testified that he did not tell Appellant

that an open guilty was Appellant's best course of action. Appellant argued that Attorney Graff failed to submit the mental

health records. Even if they did exist, Attorney Graff was not given any

records. Regardless, the PSI report noted Appellant's mental disorders

and medications.

Therefore, Appellant did not meet his burden and therefore his

claims had no arguable merit.

Under the second prong, Attorney Graff faced no alternative

options to pursue. Attorney Graff recommended Appellant to take the

8 Commonwealth's offer, but Appellant rejected it. Attorney Graff

reviewed the PSI report with Appellant, who then went on to freely

T. enter the open guilty plea. If Attorney Graff spent more time reviewing

the PSI report with Appellant, there would be no potential for

substantially greater success.

Attorney Graff stated he would obtain mental health records, but

the records were never released to Attorney Graff. If Attorney Graff

attempted to follow through with finding these records, there still would

be no potential for substantially greater success.

Because of this lack of potential, Attorney Graff s courses of action

were reasonable to advance Appellant's interests.

Under the third prong, there was no reasonable probability that

Appellant's sentence would have changed. As stated above, Appellant

had time to review the PSI report which included Appellant's mental

health considerations. Appellant freely rejected the Commonwealth's

offer and freely entered into the open guilty plea.

Thus, Attorney Graff made no error that rose to the level of

ineffective assistance of counsel and that there was no violation of

Appellant's right to counsel.

9 CONCLUSION

In conclusion, the trial court respectfully requests that this Court

affirm the Order Denying Appellant's PCRA.

Michael E. Bortner 4 Judge of the Court of Common Pleas